De uitdaging van het geweldsmonopolie. Strafrecht in tijden van conflict. (Carolijn Terwindt)

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In this thesis I have elaborated on the following question: “What does it mean for the criminal law system to be involved in a situation of violent conflict, in this case the Mapuche conflict? I have answered this question by analysing several aspects in sub questions. First in chapter two I described shortly the Mapuche conflict and the state-monopoly on violence in general. In chapter three I have analysed deeper the loss of legitimacy of the monopoly of violence of the Chilean state in the Mapuche conflict. I analysed two collective narratives that play an important role in the conflict. First the terrorism-narrative in which the actions of Mapuches are defined as terrorism and in which is being advocated for harsh repression by the state. Second the criminalization-narrative in which the repressive actions of the state towards the Mapuches are being viewed as the criminalization of a social movement that fights for her legitimate rights. It has become clear in chapter three that the legitimacy of the monopoly on violence of the Chilean state is at risk. In chapter four I focused on this loss of legitimacy and I demonstrated how the government, police and prosecution in the Mapuche conflict cope with the double task they now have on the one hand to enforce the monopoly of violence and on the other hand retrieve the legitimacy of it. Based on the calculation of the violence-worthiness of the situation, the government implements a legitimisation-strategy to retrieve legitimacy. In the process the functional ethic is slowly being abandoned and the terrorism-narrative adopted.

In the period 1989 – 98 there were 108 armed conflicts, of which in 1998 still 36 were going on (Wallensteen & Sollenberg 1999). Armed conflicts are accompanied by violations of the law and violence. To these breaches can be acted judicially. In criminology there is little attention to the implications that a situation of violent conflict has for the criminal law. In my research I start from the assumption that a violent conflict situation has consequences for the position of the criminal-judicial system. In a stable democratic constitutional state the government intervenes through this system based on her monopoly of force against violations of the law and violence. In a situation of conflict however the legitimacy of the government and her monopoly of force are debated. The judicial interventions aren’t based anymore on the legitimacy of that monopoly, as is the case in a stable situation. The criminal intervention in that case also serves to regain or recover legitimacy.

During my stay in Chile and my research after the Mapuche conflict it struck me that the judicature and police became an actor in the conflict, and that there were very different stories being told about the work they were doing. This caused questions in me about the role of criminal law during conflict situations. Mary Kaldor (1999) states that an important aspect of so-called ‘new wars’ is that the monopoly of force looses her legitimacy. This forms an important difference with earlier wars in which exactly the army as exponent of the monopoly on force were the central component confronting another army. The large amount of intrastate conflicts, the rise of international tribunal and the permanent criminal court make that increasingly the judicial criminal system will face the judgment of accused persons of delicts that arise from violent conflicts. This indicates the importance to study the position of the criminal law system in situations of conflicts. As we constantly hear the call for “zero tolerance”, “intervene by criminal law” for several rebels, terrorists, leaders and fighters in conflicts, it seems that the idea dominates that criminal interventions functions in the same manner in times of conflict as it does in stable circumstances[1].

About this subject there is only little literature available. There are indications that situations of conflict pose several challenges for the criminal law system. An example of this is the opposed effect of the conviction on a conflict, such as the explosion of violence after the conviction to the death penalty of Foday Sankoh in 1998 in Sierra Leone. Another example is the difficulty to prove the responsibility of high-positioned leaders, as is the case with Milosevic in the Yugoslav Tribunal[2]. Furthermore is known among other cases in Northern Ireland that imprisonment can strengthen a prisoner in his political ideas[3]. Of course is every conflict different and will the position of the criminal law system within a conflict situation be different in every case. The consequences for the functioning of the criminal system can be quite diverse as is shown in the above-mentioned examples. That’s the reason why I want to focus on an aspect I consider to be of central importance in every violent conflict in relation to criminal intervention, and that is the loss of legitimacy of the monopoly of force of the state.

What does it mean for the system of criminal law to perform in a situation of violent political conflict, and especially the Mapuche conflict?

Conflict is a central concept in this research. Conflict is the pursuit of incompatible goals by different groups (Miall 1999:19-20). This definition offers still space to both violent conflicts as to conflicts fought within the political arena. In this research are only relevant those conflicts in which there are violations of the law, as this is the moment in which police and judicial institutions come into action.

The criminal law system is a concept I use to refer to the entire system in which criminal proceedings take place. In this system are the police and the prosecutor, and the jurisdiction and parliamentary powers, as long as it is concerned with criminal law. This system is an important constitutional part of the maintenance of the monopoly of force of the state. That’s why I focus on the position of this criminal law system as being part of the state monopoly on force.

This question I have answered guided by several sub questions. In chapter 2 I have introduced the Mapuche conflict and the monopoly on violence in general, to be able to go deeper into the loss of legitimacy of the monopoly on violence of the Chilean government in the Mapuche conflict in chapter 3. What does the Mapuche conflict mean for the legitimacy of the state monopoly of force? In chapter 4 I focus on this loss of legitimacy. How do actors in the criminal law system handle this double task to on the one hand intervene on the basis of the monopoly of violence and on the other hand restore her legitimacy? In the end follows a conclusion in which I based on the previous analysis answer my research question.

For research to the character and circumstances of the Mapuche conflict in Chile and the role of among others the police and judicial actors in this, I have been in Chile in 2002-2003 for eight months. Here I have interviewed large part of the actors in the ocnflict. Also I have used participant observation and an extensive document analysis. Based on these collected materials I have done a discourse analysis (Sayyid & Zac 1998). A discourse analysis is a perfect instrument and theoretical context for research in legitimacy as legitimacy on the one hand is expressed in discourses and on the other hand is constructed in discourses (Terwindt 2004).

I have made a start with an inventory of the implications for the criminal system when she is in the middle of a violent conflict situation. The difference between “normal” criminal procedure and the criminal procedure in situations of conflict is the fact that the legitimacy of the monopoly of violence itself is at stake. It is thought, or seems to be thought, that in conflicts you can stop the violence with the apparatus that is founded for that purpose by the government: police and judicial institutions. In my thesis I have demonstrated that that’s not necessarily the case. The criminal procedure doesn’t function automatically the same in a conflict situation as in stable circumstances. There are specific problems arising from the changed situation. To be able to clarify these notions I have analyzed the criminal procedure from the point of view of (the legitimacy of) the monopoly on violence. A violent conflict means decreasing legitimacy of the government and the monopoly of force. A conflict in which violence is used is also a conflict of different notions of legitimacy (Demmers & van der Borgh 2001). It is these clashing notions of legitimacy that form the challenge for the maintenance of the monopoly on violence.

Unfortunately there is little study after the role of criminal law in the escalation and de-escalation of conflicts. Especially in these days in which the criminal law is being carried from her traditional place in the back as the ‘ultimum remedium’ to the foreground of the political stage, as again was made clear when politicians asked for terrorism law to abort the problem with animal activists[4], it is indispensable to have a good vision on the functioning of the criminal law in situations of conflict. This question is very relevant, taking into account the growing amount of intrastate wars and the increasing number of tribunals and the ICC, and the current ‘war on terrorism’ in which criminal intervention is expected to contribute to conflict resolution.

My conclusion based on my research in the Mapuche conflict in Chile is that the criminal chain does not automatically function the same in the Mapuche conflict as it does under stable circumstances. In my thesis it is shown that in a situation of violent conflict the administrative ethics might be abandoned. However, every conflict is different and it isn’t possible to generalize that easy.[5] It is interesting to investigate in how much the tendencies I have signaled in the Mapuche conflict are to be found in other conflicts and the criminal proceedings in that case. In how far does the criminal system in other situations also not function in the way as it is used to in a stable constitutional state? What are the implications of the presence of the several narratives and the lack of legitimacy of the monopoly of violence for the Yugoslav Tribunal, the ICC or the Dutch criminal law proceedings with respect to terrorism?

With respect to the Netherlands I would like to refer to a letter written by the Minister of Justice, Piet Hein Donner, d.d. 16^th of November 2004 as a reaction to the murder on Theo van Gogh published in the Volkskrant. “Fighting terrorism is a democratic necessity. In itself terrorism and violent radicalism express itself through criminal offences, Bu the communal criminal law is in some respects not adequate, because of the character of the violence and of the motives. [...] Investigate afterwards and punishment of the perpetrators of terrorist attacks afterwards, for this reason doesn’t help. [...] also with less certainty it should be possible to intervene. Also the motives make that has to be paid attention to other signals than with the usual criminals. External features or ideas can lead to suspect indications”. It is clear that also in the Netherlands the administrative ethics aren’t as stable in control as formerly. Indeed, Van Reenen (1979) doesn’t judge this as an inherently negative development, but as a logical and necessary reaction to unrest in society. He agrees with Donner who writes: “But in uncertain times legal rules and authorities will have to be posed more broadly, to enable the government to react on the unexpected. In quieter times the practice will crystallize in rules again” (2004). Based on my analysis it is important to answer the following questions: On which narrative of reality bases Donner his view, and what is the narrative with which it clashes? Does that narrative point to a diminishing of legitimacy of the monopoly of violence of the Dutch state? In this analysis can be looked at definitions of democracy and constitutional state, perceptions of impunity and repression and the existence or absence of a taboo concerning violence. Which strategy of legitimization does Donner use? In how far is there a politicizing of governmental violence and a transition to goal rational conduct? The words of Donner indicate that the same mechanisms have been put in action as I have described in this thesis.

It appears that the situation I have described in my thesis about the Mapuche conflict raises questions that are interesting in many other cases. These questions form an example of the way in which the criminal proceedings in different conflict situations can be analyzed. This brings me to the cooperation between criminological perspectives and the discipline of conflict studies. This cooperation is virtually non-existent, while the research areas have a lot in common and even do overlap frequently. In my thesis I have tried to give a concrete example of a research that moves on the border of the two disciplines. With the case study of the Mapuche conflict in Chile I want to bring to the fore that a closer cooperation between criminology and conflict studies can offer a fruitful future with respect to the challenges to which the current conflicts and actual criminality pose the world and specifically criminal law and the entire criminal system.

Conflict studies and criminology are very much related. Not only does the definition of criminality arise from social conflicts, also can some forms of criminality surge from conflict situations (Lissenberg e.a. 1999:205). Not only is criminality an important feature in violent conflicts, and has criminality often a social conflict at its base, also in a more broad perspective there are similarities. The studying of Hitler or Milosevic, is that criminology or conflict studies? Is Bush in conflict with a conflict party of which Bin Laden is its leader? Or is Bush in search of world’s biggest criminal named Bin Laden? And how is it with the drugs problematic, the criminal organizations, and terrorist organizations in the book of criminal law? Again and again the parallels and overlaps pop up. There are lots of examples from which it appears that criminality, war and conflict aren’t distinct areas (any more). Criminology for example isn’t restricted to the behavior judged as illegal in the criminal law (Ruller 1999:13). “In critical criminology criminality isn’t viewed as an isolated phenomenon, but as a sign of an imperfect society” (Lissenberg e.a. 1999:197). Also other forms of violence and for example the interventions of the government are subject of study in the criminology. The criminal law is also moving each time more in the direction of the area of international conflicts. The foundation of the ICC and the different tribunals (Yugoslav, Rwanda, Sierra Leone) are examples of this. In this manner the criminal law is being called upon and used as a means in the fighting, intervention and mediation in conflicts. Further, the organized crime is border crossing and forms many times an important factor in conflicts such as in Colombia. Finally, terrorism is an important example of the frontier area of war and criminality. This has consequences for the ontological and epistemological vision on criminal law (Stolwijk 2003). That’s why it is useful when academics are conscious of this overlap and share their insights with each other. I share the argumentation of lawyer Carel Stolker for more academic research in and for the purpose of the science of law[6].

It is clear that a challenge to the monopoly of violence contains criminality as well as conflict. For the development of theories and understanding in the area of social conflicts, political violence and related violations of the law it would be useful to pay more attention to this borderland between conflict studies and criminology. Both disciplines are concerned with the violation of rules and norms, in large and small scale. The perspectives on the legitimacy of violence can be a fruitful perspective in this.

[1] An exampel of this in the Dutch society is the reaction of members of the Second Chamber to actions of animal activists. “A majority of the Second Chamber has the opinion that violent animal activists should be treated as terrorists”. Volkskrant 3-10-2003, p. 7

[2] From personal conversations with functionaries at the Office of the Prosecutor of the ICTY.

[3] Speech Gerry Adams 15^th of October 2004, European Social Forum in London.

[4] “A majority of the Second Chamber has the opinion that violent animal activists should be treated as terrorists”. Volkskrant 3-10-2003, p. 7

[5] For example, although the situation in Chile is very conflictive, but physically it is not as violent as several other conflicts in the world.

[6] ‘Studied you are’ in: NRC Handelsblad weekend 12/13^th of April 2003 p.39