After the coverage of the number of recent deaths of black people at the hands of the police in the United States and the commentary about similar victims of police/prison brutality in the UK and Australia, I thought I would post this excerpt from our book Race, Gender and the Body in British Immigration Control. Although it concentrates on the immigration control system, it also talks about the concept of state crime more broadly and the importance of transforming how we look at the deaths, injuries and abuses suffered by ethnic minorities in the UK (as well as elsewhere) at the hands of state institutions.
The conduct of the immigration control system as state crime
The theory of state crime is a relatively recent development in criminal justice research, particularly in relation to the discussion of the practices of governments in Western liberal democracies, where the rule of law maintains that a legitimate use of force may be wielded by the institutions of the state, and effectively ‘consented’ to by the people who elect the government. This relates to the idea of ‘sovereignty’ – that a country has the right to solely determine its own laws (and enforce them) within its borders – although many scholars have argued that this idea of sovereignty is a myth.[1]
Criminologists Penny Green and Tony Ward have developed this idea of state crime by questioning the concept of the liberal democratic state’s legitimate use of force and arguing that the ‘legal limits of legitimate force are inherently vague’, and that the ‘strict enforcement of what limits do exist is intrinsically difficult and will often be contrary to the interests of the enforcing agency.’[2] For Green and Ward, the concept of legitimate force derives from a state’s claim to sovereignty and from ‘some degree of consent’, such that ‘there is likely to be some tacit understanding of the limits of legitimate conduct’.[3] One of the factors these authors use to define state crime is thus when the state acts outside the limits of legitimate conduct and its actions would seem illegitimate in the eyes of the civil society that the state purports to serve. They propose that state crime ‘should be restricted to the area of overlap between two distinct phenomena: (1) violations of human rights and (2) state organizational deviance’.[4] Human rights, in Green and Ward’s view, are ‘the elements of freedom and well-being that humans need to exert and develop … for purposive action’, while state organisational deviance is defined as:
Conduct by persons working for state agencies, in pursuit of organizational goals, that if it were to become known to some social audience would expose the individuals or agencies concerned to a sufficiently serious risk of formal or informal censure and sanctions to affect their conduct significantly.[5]
It is taken as implicit by Green and Ward that ‘passive failures to protect individuals against violations of their rights’ are also included within this definition of state crime.[6]
Green and Ward also point out that there is a difference between ‘individual deviant acts committed by state agents’ and ‘acts committed in pursuit of organisational goals’[7], with only the latter constituting state crime. Michael J. Lynch and Raymond Michalowski emphasise the term ‘organisational’ in the concept of state crime, proposing that often those who commit human rights abuses ‘are not morally depraved’, but are usually ‘ordinary workers who come to accept the normalcy of an organisational culture in which these acts, even if regrettable, are understood as simply part of their jobs’.[8] We have seen this in the history of abuses within the British immigration control system, as the government has tried to refute such abuse by attributing it to an individual (or individuals), usually at the lower levels, acting outside the parameters of their job. But it is often the case that the individuals are under pressure and informed from above, which creates the opportunity for abuses to occur.
In the area of immigration control policy, with a particular focus on Australia’s immigration control policy, Sharon Pickering and Michael Grewcock have both utilised he concept as developed by Green and Ward to highlight how the modern discourses that criminalise irregular migration (by refugees and asylum seekers) provide the context for state crimes to occur whereby these migrants become the victims. Grewcock states that Australia’s treatment of refugees and asylum seekers has been long criticised for ‘breaching human rights norms’, but notes that ‘few legal or formal sanctions have operated against Australian government policy’.[9] Along similar lines, Pickering points out that over the past decade and a half, ‘Australia has retreated from its international human rights obligations and has sought to particularly distance itself from its international human rights obligations to refugees’.[10] However, any condemnation by the international community has been interpreted by many in Australia as ‘an attempt to undermine the policies and practices of a democratically elected government’.[11] A ruling government is unlikely to prosecute itself for state crimes, even if its practices do constitute a violation of human rights, are institutionally embedded and are conducted in pursuit of the goals of the state. So what is the point of labelling these practices as state crimes? Pickering and Grewcock both argue that labelling a certain practice or act as a state crime allows a space for a challenge to be made within civil society and an alternative view of the ‘refugee question’ to emerge. As Pickering concludes in a 2005 article, the use of the term ‘state crime’ ‘may assist in the deployment of alternative meanings for legitimate sovereign behaviour and the terms through which its legitimacy may be judged’.[12]
British immigration control and state crime
We see similarities between the phenomena described by Pickering and Grewcock and the abuses that we have described in this book. One of the continuous features of British immigration control since the 1970s is that there are ever tightening restrictions placed upon non-European migration, but as mentioned earlier this has not stopped the flow of people into Britain. Liza Schuster has argued that, despite controls becoming ever tighter, people still find a way into the destination country, stating that:
Controlled borders, let alone closed borders, are a fiction, and … the European and other governments which attempt to enforce these are involved in a symbolic battle at best.[13]
It is within this symbolic battle, Schuster claims, that there are ‘very real serious costs and consequences’ of the enforcement of immigration control, not only for migrants but also for the destination countries.[14] In addition to the massive financial costs of maintaining border control, hundreds of migrants die or are injured while seeking to gain entry to the destination country and there is an ‘increase in racial prejudice and racial violence each time migration controls become the focus of political attention’.[15]
The figures on how many have died, been injured or been physically or mentally abused within the British immigration control process are incomplete, and only cover a much more recent period of time than that examined in this book. For example, Harmit Athwal for the Institute of Race Relations (IRR) states that, between 2006 and 2010, ‘77 asylum seekers and migrants … have died either in the UK or [while] attempting to reach the UK’.[16] Of these 77, 15 died ‘taking dangerous and highly risky methods to enter the country’, 44 died ‘as an indirect consequence of the iniquities of the immigration/asylum system’ (with 28 of those committing suicide), seven died in police custody, seven died ‘at the hands of racists or as a consequence of altercations with a racial dimension’ while out in the community and four died while undertaking work in the ‘black economy’ as irregular migrants who are not provided with any state assistance.[17] After the deaths of three migrants in Colnbrook Immigration Removal Centre in July and August 2011, Athwal reported on the IRR website that 14 people had died in British immigration detention centres since 1989.[18] These reported figures are most likely to be underestimates of the real size of the problem and Athwal suggests that there may be more, such as those who die while trying to enter Britain, those who are repatriated to a place where they fear for their safety and those who die while working in the ‘black economy’.[19] Athwal also emphasises that these figures do not include the violence experienced by settled migrants and the next generations, at the hands of either other members of the community or institutions of the state, such as the police. Another IRR study from 2010 found that 89 people had died as a result of racial violence since 1993 (the year of Stephen Lawrence’s murder)[20], while the IRR website claims that over 140 black and ethnic minority people died in police custody between December 1978 and November 2003.[21]
Can these deaths be attributed to state crime? Looking back at Green and Ward’s definition, these deaths can be seen to eventuate from the pursuit of organisational goals by state personnel (such as preventing irregular migrants from entering the country, deporting unwanted migrants, and ensuring that living in the UK as an irregular migrant intolerable) or the failure to adequately protect vulnerable individuals. As Leanne Weber argues:
[t]he majority of border-related deaths can be attributed to the ‘structural violence’ of border controls – that is, to systemic effects that multiply the risks of death and injury faced by illegalised travellers.[22]
And like the Australian context, in Britain the migrant has little recourse against state crimes. Mary Bosworth and Mhairi Guild have explained that the migrant is in a ‘substantially different, and far more vulnerable, position’ than the domestic criminal, and the ‘British immigration complex does not encounter the same [legal] constraints as the [domestic] criminal justice system’.[23] Liz Fekete has lamented that ‘[n]ot one of the twelve deportation deaths the IRR has documented since 1993 [to 2007] has led to a police officer or immigration official being successfully prosecuted for murder or the lesser charge of manslaughter’.[24]
The death of migrants is not the only basis on which to justify use of the term ‘state crime’. Serous abuse and physical and psychological harm at the hands of the state can be classified as state crime. And the practice of virginity testing reveals that the maltreatment of vulnerable migrants is not reserved to irregular migrants. Moreover, migrants showing up at the border with documents are subjected to state abuse. This demonstrates that state crime at the border can take many forms, and more often than not goes unreported and remains unknown. However, these abuses can be explained as a consequence of attempts to achieve the organisational goals of the immigration control system: the ‘desire for order’ and the aim of preventing ‘undesirable’ migrants from entering the country.
This raises a question in relation to the cases of abuse seen in the British immigration control system and in the Australian system: can these abuses be considered ‘state crimes’ as defined by Pickering, Grewcock, and Green and Ward? Clearly, similar abuses have occurred in both immigration control systems. And by the definition put forward by Green and Ward, as used by Pickering and Grewcock, these abuses could indeed be defined as state crimes, pursued in the process of state organisational goals.
What is the purpose of calling these abuses state crimes? It must be to redress the balance in the discourse on how migrants are treated within the British immigration control system. The present discourse is framed by a popular assumption that migration is a transgressive act that must be responded to with the full force of the coercive powers of the state, which often surpasses the ‘legal’ limits of this coercion. By highlighting the actions of the state as a form of criminal activity, rather than focusing on the possibility of people entering the country under false pretences, we are hoping for a shift in the dominant discourse.
[1] See David Garland, ‘The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society’, British Journal of Criminology, 36/4 (Autumn 1996) pp. 445-471; Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization (New York, 1996).
[2] Penny J. Green and Tony Ward, ‘State Crime, Human Rights and the Limits of Criminology’, Social Justice, 27/1 (2000) p. 102.
[3] Green & Ward, ‘State Crime, Human Rights and the Limits of Criminology’, p. 108.
[4] Green & Ward, ‘State Crime, Human Rights and the Limits of Criminology’, p. 110.
[5] Green & Ward, ‘State Crime, Human Rights and the Limits of Criminology’, p. 110.
[6] Green & Ward, ‘State Crime, Human Rights and the Limits of Criminology’, p. 111.
[7] Green & Ward, ‘State Crime, Human Rights and the Limits of Criminology’, p. 110.
[8] Michael J. Lynch & Raymond Michalowski, Primer in Radical Criminology: Critical Perspectives on Crime, Power and Identity (Mansey, NY, 2006) p. 186.
[9] Michael Grewcock, Border Crimes: Australia’s War on Illicit Migrants (Sydney: Institute of Criminology, 2010) p. 18.
[10] Sharon Pickering, Refugees and State Crime (Sydney: Federation Press, 2005) p. 13.
[11] Pickering, Refugees and State Crime, p. 14.
[12] Sharon Pickering, ‘Crimes of the State: The Persecution and Protection of Refugees’, Critical Criminology, 13 (2005) p. 160.
[13] Liza Schuster, ‘An Open Debate on Open Borders: Reply to Stephen Castles’, Open Democracy (29 December 2003) http://www.opendemocracy.net/print/1658 (accessed 18 November 2009).
[14] Schuster, ‘An Open Debate on Open Borders’.
[15] Schuster, ‘An Open Debate on Open Borders’.
[16] Harmit Athwal, Driven to Desperate Measures: 2006-2010 (London, 2010) p. 2.
[17] Athwal, Driven to Desperate Measures, p. 2.
[18] Harmit Athwal, ‘Three Deaths in Immigration Detention’, IRR website (4 August 2011) http://www.irr.org.uk/2011/august/ha000008.html (accessed 26 August 2011).
[19] Athwal, Driven to Desperate Measures, p. 2.
[20] Harmit Athwal, Jenny Bourne and Rebecca Wood, Racial Violence: The Buried Issue, IRR Briefing Paper 6 (London, 2010) p. 3.
[21] IRR, ‘Black Deaths in Custody’ (19 February 2004) http://www.irr.org.uk/2002/november/ak000006.html (accessed 26 August 2011).
[22] Leanne Weber, ‘Knowing-and-yet-not-knowing about European Border Deaths’, Australian Journal of Human Rights, 15/2 (2010) p. 41.
[23] Mary Bosworth and Mhairi Guild, ‘Governing through Migration Control: Security and Citizenship in Britain’, British Journal of Criminology, 48 (2008) p. 711.
[24] Liz Fekete, ‘Europe’s Shame: A Report on 105 Deaths Linked to Racism or Government Migration and Asylum Policies’, European Race Bulletin 66 (Winter 2009) p. 5.
New Historical Express 