Criminologies of the Military: Militarism, National Security and Justice 9781509904884, 9781509904860

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CRIMINOLOGIES OF THE MILITARY This innovative collection offers one of the first analyses of criminologies of the military from an interdisciplinary perspective. While some criminologists have examined the military in relation to the area of war crimes, this collection considers a range of other important but less explored aspects such as private military actors, insurgents, paramilitary groups and the role of military forces in tackling transnational crime. Drawing upon insights from criminology, this book’s editors also consider the ways the military institution harbours criminal activity within its ranks and deals with ­prisoners of war. The contributions, by leading experts in the field, have a broad reach and take a truly global approach to the subject.

Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW General Editors Rosemary Hunter David Nelken Founding Editors William L F Felstiner Eve Darian-Smith Board of General Editors Carlos Lugo, Hostos Law School, Puerto Rico Jacek Kurczewski, Warsaw University, Poland Marie-Claire Foblets, Leuven University, Belgium Ulrike Schultz, Fern Universität, Germany Recent titles in this series Women’s Rights to Social Security and Social Protection Edited by Beth Goldblatt and Lucie Lamarch Delivering Family Justice in the 21st Century Edited by Mavis Maclean, John Eekelaar and Benoit Bastard Regulatory Transformations Rethinking Economy-Society Interactions Edited by Bettina Lange, Fiona Haines and Dania Thomas Life Imprisonment and Human Rights Edited by Dirk van Zyl Smit and Catherine Appleton Trust in International Police and Justice Cooperation Edited by Saskia Hufnagel and Carole McCartney Human Rights Encounter Legal Pluralism Edited by Eva Brems, Giselle Corradi and Mark Goodale Transitional Justice and the Public Sphere: Engagement, Legitimacy and Contestation Chrisje Brants and Susanne Karstedt Law and the Precarious Home: Socio Legal Perspectives on the Home in Insecure Times Edited by Helen Carr, Brendan Edgeworth and Caroline Hunter For the complete list of titles in this series, see ‘Oñati International Series in Law and Society’ link at www.bloomsburyprofessional.com/uk/series/ onati-international-series-in-law-and-society

Criminologies of the Military Militarism, National Security and Justice

Edited by

Ben Wadham and Andrew Goldsmith

Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2018 Copyright © The editors and contributors severally 2018 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/ doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2018. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Goldsmith, Andrew John, editor.  |  Wadham, Benjamin Allan, 1969- editor. Title: Criminologies of the military : militarism, national security and justice / edited by Andrew Goldsmith and Ben Wadham. Description: Oxford, UK : Bloomsbury Publishing, 2018.  |  Series: International series in law and society  |  Includes bibliographical references and index. Identifiers: LCCN 2017057322 (print)  |  LCCN 2017059586 (ebook)  |  ISBN 9781509904884 (Epub)  |  ISBN 9781509904860 (hardback : alk. paper) Subjects: LCSH: Military ethics. | Criminology.  | Crime. |  Militarism. | National security. Classification: LCC U22 (ebook)   |  LCC U22 .C75 2018 (print)  |  DDC 172/.42—dc23 LC record available at https://lccn.loc.gov/2017057322 ISBN: HB: 978-1-5-0990-486-0 ePDF: 978-1-5-0990-487-7 ePub: 978-1-5-0990-488-4 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Acknowledgements The editors would like to acknowledge the support of the Flinders C ­ entre for Crime Policy and Research throughout the project, from ­conception, through to the organization of the Onati workshop, and afterwards in relation to the completion of the manuscript. In addition, the editors want to thank the following persons for their various roles in assisting with research, collation, and editing of the chapters: Deb McBratney, Melissa De ­Vel-Palumbo, and Julie-Anne Toohey.

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Contents Acknowledgements����������������������������������������������������������������������������������� v List of Contributors��������������������������������������������������������������������������������� ix Introduction���������������������������������������������������������������������������������������������� 1 Ben Wadham and Andrew Goldsmith 1. Beyond ‘Khaki Collar Crime’���������������������������������������������������������� 17 Ross McGarry and Emma Murray 2. Means of Advancing Militarism: Shock, Ideology and Ethos���������� 43 Willem de Lint 3. West African Militaries and Organised Crime�������������������������������� 65 Gernot Klantschnig and Neil Carrier 4. Private Military Contractors: A Criminological Approach�������������� 81 Adam White 5. Soldiers as Crime Fighters: The British Army in Post-War Bosnia and Kosovo������������������������������������������������������������������������� 95 Cornelius Friesendorf 6. The Intersection Between International Criminal Law and National Military/Disciplinary Law��������������������������������������� 115 Grant Niemann 7. Techniques of Naturalisation: Crime, Camouflage and Institutional Accounts of Violence in the Military������������������ 133 Ben Wadham 8. Perverse Penalities: Towards a Penology of the Military��������������� 151 Mark Halsey and Andrew Goldsmith 9. Conduct Unbecoming: Homosex, Discipline and Military Cultures in the Second World War������������������������������������������������ 169 Yorick Smaal and Graham Willett 10. Framing Criminologies of the Military: An Interdisciplinary and Pedagogic Reflection�������������������������������������������������������������� 189 James Sheptycki and David Mutimer Index����������������������������������������������������������������������������������������������������� 205

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List of Contributors Willem de Lint Professor of Criminology, College of Business, Government and Law, ­Flinders University, South Australia Cornelius Friesendorf Lecturer, Cluster of Excellence, Goethe University, Frankfurt, Germany Andrew Goldsmith Matthew Flinders Distinguished Professor, Director, Centre for Crime P ­ olicy & Research, Flinders University, South Australia Mark Halsey Professor of Criminology, College of Business, Government and Law, ­Flinders University, South Australia Gernot Klantschnig Senior Lecturer, University of York, York, United Kingdom Ross McGarry Senior Lecturer, Department of Sociology, Social Policy and Criminology, University of Liverpool, Liverpool, United Kingdom Emma Murray Senior Lecturer, School of Law, Liverpool John Moores University, ­Liverpool, United Kingdom David Mutimer Professor, Department of Political Science, York University, Toronto, Canada Grant Niemann Senior Lecturer, College of Business, Government and Law, Flinders ­University, South Australia James Sheptycki Professor, Criminology, York University, Toronto, Canada Yorick Smaal Research Fellow (ARC DECRA), Griffith University, Gold Coast, ­Queensland, Australia Ben Wadham Associate Professor, Centre for Crime Policy & Research, Flinders U ­ niversity, South Australia

x  List of Contributors Adam White Senior Lecturer, Criminology, School of Law, The University of Sheffield, Sheffield, United Kingdom Graham Willett Honorary, Historical and Philosophical Studies, The University of Melbourne, Victoria, Australia

Introduction BEN WADHAM AND ANDREW GOLDSMITH

CRIME, CRIMINOLOGY AND THE MILITARY

T

HE WESTERN WORLD has been engaged in sustained military activity since S­ eptember 2001. While war and military operations have been, and continue to be, dominant landmarks on the historical landscape of the last century or so, the focus of attention on these issues from scholars in the social sciences has had a reasonably specific character. Research has tended to stem from strategic studies and international human rights rather than from detailed studies of changes in the ways militaries self-organise and operate in the field. Over this time we have seen militaries develop in size, organisation, professionalism, technology and extent of global engagement. In the same period, militaries and wars have become increasingly mediated through the mainstream media, and in more recent times, the burgeoning Internet and other forms of social media. As institutions, militaries have become decreasingly closed off to external influence. In various ways the idea of a civil–military separation has been challenged by changes in broader governance arrangements. For example, in recent years civic accountability and machineries of governance have infiltrated the military, often in response to scandals within one or other of the services (army, navy, air force). Alongside changes in conventional ­military structures, there have been signs of more diffuse changes. Militarism, in the sense of a particular mentality or lens that promotes a military orientation to the world, has become increasingly evident and taken a variety of forms. Greater economic liberalisation, including the tendency for governments to outsource key functions, has led, for example, to the proliferation of private military companies and the emergence of private military and security contractors (Uessler, 2008). The ‘new wars’ phenomenon (Kaldor, 1999) and the strategic focus within international security analyses upon the problems associated within so-called ‘failed’ or ‘failing’ states, has meant that as militaries focus more upon intra-state issues, issues of national security have increasingly assumed a domestic focus. The phenomenon of ‘lone wolf terrorism’ has reminded many of us that militarism is something ‘we’ face on our own streets and in our own neighbourhoods; it is not something that happens just to ‘others’ in faraway places. It is a feature of those who would attack us at close quarters as well as those who

2  Ben Wadham and Andrew Goldsmith attack our troops (Hamm and Spaaij, 2017). In such environments, away and at home, there are often few ‘bright lines’ to be drawn between warring parties and criminal groups, or between military combatants, criminals and local residents. While then we are witnessing at an operational level the blurring of the realities of war fighting and criminal activity as armed groups resort to crime to sustain the pursuit of their military objectives and are involved in activities designated as war crimes, there has not been a commensurate recognition of these overlaps and intersections in scholarly study and analysis from within criminology. In this collection we examine a number of aspects of the convergence of these two fields—military activities and militarism on the one hand (see Huntington, 1957; Janowitz, 1964; Enloe, 1980) and the concerns, methods and analytical approaches of criminology (see T ­ aylor, Walton and Young, 2013). As part of this collective examination it is important to address here some of the reasons why there has been relatively ­little attention to these intersections to date. The military and militarism are ­pervasive and highly legitimised national forms. The military is often represented in popular culture with the national character as a higher expression of the human condition, as composed of selfless and duty-bound individuals working for the nation. But militaries, like any institution, have the potential for criminality, corruption and misconduct (see Bryant, 1979). As the Abu Ghraib scandal illustrated so vividly, military institutions consist of individuals of varying dispositions towards criminality as well as providing, and operating within environments in which crimes can occur. The somewhat sacred standing of militaries within many societies makes revelation of wrongdoing in these environments difficult so that the detailed examination of wrongdoing by scholars as well as investigators becomes arduous or even impossible. As armed state actors, military personnel can find themselves also engaged against groups and individuals who have been criminalised under national or international law, in effect playing a law enforcement role. The very casting of state operations against those engaged in drug trafficking as engagements in a ‘war’ against ‘enemies’ has contributed to a blurring of the lines between civil law enforcement and military operations, contributing to the ‘police-isation’ of the military and the ‘militarisation’ of policing in countries such as Iraq, Afghanistan, ­Mexico and Colombia. Similarly a renewed focus on ‘war crimes’ in the past two decades from events in places such as the former Yugoslavia, Timor-Leste and a number of African countries has, implicitly at least, begged the question of how persons accused of crimes of this kind can be brought to justice. The patent weakness and unsuitability of conventional police forces to undertake this enforcement work again raises issues of how, when and where military forces might contribute in law enforcement. Thus as scholars of policing, transnational crime or international humanitarian law, it is impossible for us to ignore the evidence of this convergence of challenges

Introduction 3 and functions. Yet, at least within criminology, there have been few attempts to date to map out and explore these convergences. The difficulties of undertaking fieldwork in conflicted and contested spaces where these crimes occur is undoubtedly a deterrent (Goldsmith, 2003). Against a background of such considerations, it perhaps then is hardly surprising that we are yet to see the real emergence of a criminology of the military in the sense that we seek to develop in this volume. WHAT IS CRIMINOLOGY OF THE MILITARY/MILITARY CRIMINOLOGY?

Our approach to this question in part reflects the broad nature of ­criminology—the study and understanding of the sources of and nature of crimes, and official and societal responses to them—as applied to the military sphere. This latter term, in turn, is intended to incorporate not just the structures and operations of conventional military forces, but also the influence of militarism and military-type ideas and practices outside the confines of conventional military institutions and environments. Our scope, therefore, is not limited to state military forces. Groups such as insurgency groups, paramilitary police forces and private military companies, because of their use of military methods and/or participation in armed conflicts, fall within the intended purview of this volume. In terms of the scope of the concept of crime, we intend to look at crimes committed by, within and against those military and military-like entities under consideration here. In the first category, this would include crimes in war or in war-like conditions committed by personnel engaged in those activities as well as crimes committed while serving in military forces ­(Goldstone, 2002; Meron, 1993; Neier, 1998; Razack, 2004). Obviously, war crimes fall within this first category. In the second, we include crimes committed by personnel against other personnel; they may take any number of forms (eg theft, assault, fraud) but the critical aspect is their occurrence between personnel in the same organisation. In the third category, the focus is on military personnel as victims of externally directed crimes. These could be as victims of war crimes or as victims of civilian criminal actions against them (eg the fatal attack on off-duty soldier Lee Rigby in London by two self-declared al-Qaeda supporters). Within this category, offences such as fraud, theft and deception committed against military organisations (ie as organisational victims) would also be included. As criminology typically also examines responses to crimes, a full criminology of the military also needs to look at the various institutions and processes of criminal justice as applied to military issues and settings. Thus, in addition to examining civilian policing and law enforcement, it must also address matters of prosecution, conviction and punishment. There may well be, indeed are, responses distinct or unique to the military sphere, such as military courts and prisons,

4  Ben Wadham and Andrew Goldsmith which also fall within the purview of this volume’s approach (Danner, 2004; Puar, 2004). If we are correct in our assertion that criminology of the military (or for brevity’s sake, military criminology) is in its infancy, there are nonetheless signposts or pathways from other areas of scholarship providing some guidance in this fledgling field. Military criminology can be linked to several discrete bodies of literature. First, there is the sociology of the military developed since World War II through the work of Samuel Huntington, The Soldier and the State (1957) and of Morris Janowitz, The Professional Soldier (1964). This work informs the study of the work of soldiers as well as of the military as an organisation. This latter aspect is sometimes referred to as the field of civil–military relations (Feaver, 1996; Feaver and Kohn, 2001), which considers how militaries related to civil authorities and the public in democratic societies. Secondly, the sociology of deviance provides a number of themes that have potential application. One is the sub-field of organisational deviance and study of the dark side of organisations (Vaughan, 1999), which informs the manner in which institutions like the military constitute settings in which various forms of deviance are possible, encouraged and even normalised. Also within the tradition of the sociology of deviance lies the study of techniques of neutralisation, the development and socialisation of repertoires of justification and excuse for deviant actions (Sykes and Matza, 1957). Thirdly, and closely connected through notions such as state crime, is the work of critical criminology, which has over time worked to extend the gaze of criminology (Taylor et al, 2013: xiii). The task of critical criminology, it has recently been claimed, is to widen th[e] lens so as to, first include within its scope a whole series of substantive areas previously obscured forgotten or simply placed within the realms of another discipline state crime, corporate and white collar crime, crimes of safety in the workplace, racist and hate crimes, domestic violence, crimes against women, crimes of war and genocide (Taylor et al, 2013: xiii).

Our aim in this volume is use a variety of criminological approaches to illuminate the manner in which crime or socially transgressive practices and cultures permeate the military and are, indeed, pervasive to and ­embedded in the institution and the activities within which it engages. In the next ­section, drawing further on the literature of criminology, we look at several key themes in the intersection of these two disciplinary fields of inquiry. THEFT, FRAUD, SEXUAL VIOLENCE: CRIMES IN THE MILITARY

Edwin H Sutherland (1983), a leading thinker in American criminology in the mid-twentieth century, challenged his fellow criminologists in two ways

Introduction 5 relevant to the study of militaries and militarism. The first was to point to the incidence of crimes and other harmful conduct that took place in ostensibly respectable institutional settings. While his focus was upon corporations and the incidence of white-collar crime, there is an obvious parallel here to military institutions. The second challenge was to focus upon the importance of environments in which pro-criminal values, attitudes and skills were transmitted by experienced individuals to newcomers in those settings. He indirectly then anticipated a number of the crucial features in understanding the commission of war crimes by military forces as well as the occurrence of crimes within military institutions against military personnel. His interest in social learning reminds us of the important impact of groups and institutions in influencing behaviour, while by pointing to the crimes of the ‘reputable’, he was reminding us that crime is not always a socially segregated activity by ‘others’. At the same time, those ‘reputable environments’, he pointed out, were inclined to resist the characterisation of their activities as ‘disreputable’. Early intimations of a military criminology were expressed in studies of soldier delinquency in Chicago School style (Gibbs, 1957; Trenaman, 1952; Hakeem, 1946; Schneider and LaGrone, 1945). This form of military criminology developed on the foundations of the sociology of deviance and organisational sociology, looking at the crimes within the military in Britain and the United States as crimes of the workplace. Outside criminology’s focus on ‘blue-collar’ and white-collar crime, this work introduced the idea of ‘khaki’-coloured crime. A focus on ‘normal’ or conventional crimes committed by military personnel (eg sexual assault of other military personnel), however, was rare. There was a much stronger scholarly emphasis on the ‘pathologies of war’, in other words the crimes committed while actively engaged in war fighting, a tendency which remains true until today. Bryant (1979) noted: [M]ost of the literature in the area of military crime however, focused exclusively on war atrocities as a crime … The limited literature on military crime has tended to be narrow in focus on the offenses committed and has not addressed the full range of behaviors deviant to the military norm and regulation (Bryant, 1979: 38).

An adequate criminology of the military, we emphasise, must incorporate crimes committed in war-like settings as well as away from such environments. We propose here not to lose sight of Sutherland’s injunction to consider crime in organisational settings in the case of the military. An additional perspective that is salient is to reflect upon military activities as forms of labour or work. Though in some cases this work will involve the use of lethal violence, not all military crimes will do so. Nor will they always be ‘out of the ordinary’ in the settings in which they occur. In understanding the nature of the challenges veterans face after discharge, it is important also to recall the close working environments that influenced how military tasks

6  Ben Wadham and Andrew Goldsmith were undertaken and often had a formative influence on those who undertook those tasks. Military criminology therefore stands to gain by drawing where appropriate upon the relevant literatures on organisational and workplace deviance (Mars, 1973). Another promising lead from sociological criminology arises from notions of organisations as conflicted in their aims and thus placing individuals working within them under strain. Robert Merton reminds us that any organisation can experience the ‘unanticipated consequences of purposive social action’ (1936: 895). In a similar vein but more recently, Diane Vaughan has observed that ‘any system of action inevitably generates secondary consequences that run counter to its objectives’ (1999: 273). Crime in these settings will often be unanticipated and also frequently counterproductive to the realisation of military objectives. However we must leave open the possibility that not all responses necessarily will be counterproductive. The military, like corporations, is capable of exhibiting structural ambivalence. In both settings, what is legal and what is considered acceptable or indeed necessary can be found to exist in a state of tension or to conflict (Beaton-Wells and Haines, 2009; Braithwaite, 1985, 2013). Here, applying this principle to military affairs, ‘winning the battle’ by the use of unlawful means may further the strategic objective of military success, albeit not by legitimate means. It is, in essence, the ‘dirty hands’ problem. From a regulatory perspective, an unintended consequence of strict enforcement of military law in battle or warfare conditions might be the loss of military effectiveness and efficiency, potentially prejudicing the achievement of the strategic goal of ‘winning the war’ (cf Anechiarico and Jacobs, 1996). Crimes by and within the military that have been researched include the relationship between sexual exploitation and rape (Seifert, 1994; ­Morris, 1996; Zurbriggen, 2010). These crimes have been explained in terms of shortcomings of military culture (Winslow, 2004; Razack, 2004), the ­military personality (Wolfendale, 2007; Segal, 1997; Theweleit, 1989) and the military institution (see Goffman, 1961). The military scandal, often a sexualised expression of male-dominated military contexts, has often been linked to exploitative crimes of a sexual or other physical nature (see C ­ onnor and Andrews, 2013; Wadham, 2004, 2005; Evans, 2013). Militaries, while distinctive institutions because they wield military power on behalf of the state or some other political authority, are also examples of what Erving Goffman has called ‘closed institutions’. They share historically with hospitals and asylums a lack of external scrutiny that leads to a closed environment in which wrongdoing is less easily detected and more readily covered up. These features indicate the criminogenic potential of such institutions, including the military. They also point to the difficulty they pose for oversight and accountability. The issue of accountability leads us to consider the question of military justice and the formal processes of institutional accountability through

Introduction 7 courts or other means. Militaries historically have convened their own justice systems, including criminal codes, systems of managing complaints, handling incidents, policing and investigation, prosecution, defence and sentencing. However the entire edifice of military criminal justice has largely been overlooked or bypassed by criminologists, despite the core elements of these systems remaining utterly recognisable as subjects for potential criminological attention. By default these themes have mainly been left to investigative journalists and commissions or boards of inquiry, where they have been addressed publicly at all. In recent years, these mechanisms have increasingly drawn upon explanations of organisational culture and systemic malfunction, and are reflected in the literatures on police misconduct, corruption and criminality. However we are yet to see an ‘organisational culture’ turn among scholars in relation to the study of crime, misconduct and injustice in military settings. In this collection, there is an attempt by Wadham to redress this particular area of neglect through attention to the persistent and entrenched nature of misconduct. CRIMES BY THE MILITARY: WAR AND INSTITUTIONAL ABUSE

In this volume we examine different conceptions of war as well as of militarism. According to Münkler (2005: 3), in the past few decades ‘War has lost its well-defined contours’. The changing nature and diverse forms of ‘war’ imply a range of criminological considerations. Münkler’s observation refers partly to the proliferation of internal conflicts involving military methods and personnel in contrast to interstate wars between national armies. One example of this blurring is the engagement of insurgency groups and indeed state militaries in forms of organised and transnational crime as ways of financing their political and military campaigns. Another is the expansion of militarism as a principle of organisational design and institutional practice. Graham (2009) refers to the shift from ‘battlefields’ to ‘battlespaces’ in reflection of the proposition that more places are now subject to war-like measures. As will be noted later in this volume, the proliferation of sites of military interest and engagement are not confined to physical spaces but increasingly include cyberspace. The primary implication of these trends is that the contexts in which crimes by the military can occur are now more numerous and diverse in nature. The link between war and warfare on the one hand, and crime on the other, is hardly a new one. In addition to the emergence of international humanitarian law in the nineteenth century, classifying certain features of the conduct of war as unlawful and indeed criminal, there is also the key role played by militaries in state formation, which through violence, exploitation and plunder enabled some political leaders to prevail over opposition. Here the critical role of militaries engaged essentially in organised crime

8  Ben Wadham and Andrew Goldsmith as a technique of state formation (Tilly, 1985) is a salutary reminder that military victories ultimately impact upon whether particular activities are remembered as heroic actions rather than crimes of a base and illegitimate kind. Power, a central construct of critical criminology in defining certain behaviours as crimes of the powerful, is clearly pertinent to our understanding of when militaries commit war crimes and other kinds of crime. As armed state actors, militaries commonly wield significant and, at times, overwhelming power in various battlespaces. This power can sometimes be manifested in how incidents are framed and responsibility is allocated (‘victors write the history books’), contributing to an avoidance of responsibility by the victor or more powerful warring party. However, the idea of asymmetrical warfare challenges the idea that conventional military power will necessarily prevail over less structured armed actors. The latter may have local alliances with the population or knowledge of the terrain that enables them to frustrate, or indeed resist, military defeat by conventional forces. In such circumstances, either side may commit crimes of war. But in addition, in such circumstances, conventional military forces are more likely to resort to illegal methods to advance their objectives. The My Lai massacre of civilians committed by US soldiers in Vietnam on 16 March 1968 is an example of how perversely military power can operate in asymmetrical settings (see, eg, Hersh, 1970). While not widely studied by criminologists until recently, the subject of international humanitarian law, the more recent return to use of international criminal courts and tribunals, and the emergence of a responsibility to protect, have provided significant themes for criminological exploration. Some have focused more directly on themes of specific criminological ­interest than others, such as the operation of international courts and their successes in prosecuting and convicting in war crime cases (eg Bosco, 2013). Of related criminological significance, at least in theory, is the post-World War II expansion in the area of international human rights and particularly the efforts by groups such as Human Rights Watch and Amnesty International to monitor and report on the actions of state agents, especially ­military, police and other security forces. For many decades this work has been the concern of human rights lawyers as well as field workers. The breaches that they detect and report upon are commonly breaches of domestic law where they occur, as well as in breach of human rights principles if not also international humanitarian law. The heavy incidence of military personnel in the abuse statistics reported by human rights monitoring groups again points to an often substantial involvement of the military in crimes such as murder, mass rape, disappearances and torture. Yet despite the abundance of suitable cases for examination, criminologists in general have shied away from this area as a field of research. War and indeed ­conflict, as noted earlier, present real challenges to the kinds of sustained

Introduction 9 fieldwork associated with criminological research. They are also examples of crimes of the powerful that tend to be difficult to investigate or research because of the powerful interests typically opposed to such ­investigations. As the media has increasingly focused upon the ‘new wars’ of the last few decades, in addition to the reports of human rights monitors, our understanding of crimes by the military has depended heavily upon investigative journalists in the field such as Mark Danner and Paul McGeough (see eg Danner, 2004; McGeough, 2003). HOW THIS COLLECTION DEVELOPED

In May 2013 Flinders University Law School convened a two-day symposium entitled Crime and Justice Challenges for the Contemporary Military, attracting national and international scholars from England. This conference covered subjects such as scandals and abuse within the Australian Defence Force (ADF), military legal approaches to justice for organisational crimes of physical and sexual abuse, and the extension of male violence to peacekeeper exploitation of local inhabitants in East Timor. International humanitarian law (IHL) matters such as stability operations and the rule of law in occupied territories and the role of the International Criminal Court (ICC) were discussed, as were the post-military criminal experiences of many veterans. The symposium showcased military criminology as a scantly researched subject in its own right, and a field that is inherently interdisciplinary in nature, drawing on law, development studies, gender and violence and, of course, criminology, the sociology of deviance and international studies. This small symposium led on to a two-day international workshop at the International Institute for the Sociology of Law, in Onati, Spain in July 2014. The chapters presented here derive in substantial measure from the papers given at that event. OVERVIEW OF THE COLLECTION

Ross McGarry and Emma Murray begin this collection with a Left realist criminological engagement with the military. The chapter carefully outlines the trajectory of sociological criminology’s engagement with the military. McGarry and Murray take us beyond the seminal Khaki Coloured Crime to propose a methodological and theoretical frame for making sense of the military and its personnel beyond a disciplinary or institutional frame. The authors raise two key questions: (i) how have the military and its personnel been approached as a site of criminological analysis to date, and (ii) what could a more fully developed ‘criminology of the military’ entail?

10  Ben Wadham and Andrew Goldsmith They direct us towards critical ethnographic military studies and propose a version of Lea and Young’s (1984) concept of relative deprivation, pointing to the formative influence of different military environments in engagement in deviant and criminal actions. In concluding, McGarry and Murrray remind us that this topic would benefit from a wider perspective, advocating for postcolonial miltiary studies that take heed of Connell’s Southern Theory and include studies of militaries and their environments in other parts of the world from those usually examined (for the most part, the Anglosphere). In the next chapter by Willem De Lint, ‘Means of Advancing Militarism: Shock, ideology and Ethos’ de Lint describes the phenomenon of security creep in late-modern societies. Security creep, or militarisation, is ‘the mechanism by which militarism becomes relatively more prolific in the ethos’ (p 43). Noting that militarism comes in ebbs and flows, when it flows it is often through the critical event, supported by, and productive of, swells in authoritarianism and xenophobia. De Lint asks the question: ‘What are the features of the process by which militarisation creeps into the quotidian?’ and leads us through an analysis of several signature events that precipitated authority bubbles and the increasing diffusion of militarism into civil society. These features, the irruptive security spectacle, ideological coup and national-cultural coup, express the manner in which liberalism and authoritarianism are interconnected, and that irruptive sovereign violence is both legitimising as well as responsive. And military might is increasingly, especially after 9/11, becoming the likely course of action in an era of strong ideological militarism. In Chapter 3 Gernot Klantschnig examines the world of state crime in Nigeria and Guinea-Bissau—Africa’s first narco-state—driven by the use of the sovereign military. Klantschnig assesses the extent and also the limits of the state-organised crime nexus in the African sub-region. The postcolonial state of African nations has resulted in some areas of the region turning to criminalisation of sections of the state machinery, including the military, where ‘[c]riminalisation of politics and the state may be regarded as the routinisation, at the very heart of political and governmental institutions and circuits, of practices whose criminal nature is patent’ (p 68). The two case studies demonstrate different forms of state involvement in criminal enterprise, largely drug trafficking. But Klantschnig qualifies this growing interpretation, arguing that state criminalisation is often an outcome of weak states with weak policing, judiciary and rule of law. Paradoxically, he suggests, efforts to strengthen the state through technical assistance development aid may unwittingly contribute to the stabilisation of conditions in ways beneficial to the ongoing involvement of state officials in organised crime. In Chapter 4, the issue of private military contractors (PMCs) is considered. Adam White observes how private military contract work has grown significantly over the past two decades, as has academic interest in this field. White’s chapter, rather than focusing on their activities in the battlespace,

Introduction 11 draws our attention to the transition of PMCs from the battlefield to civilian life. The chapter seeks to shed light on the criminological elements of this transition, drawing on the evidence that these men often move from regular military involvement into forms of criminal activity. White provides an interesting review connecting criminology and the international relations literature on the marketisation of militarism through the growth of private contractors in the space of conflict and war. Upon their return from service in the field, the private contractor is commonly stereotyped as a lawbreaking trigger-happy mercenary or at least an accident waiting to happen. Indeed many private contractors have become stuck in a world gazing over their muzzles, recognising their inability to return to mainstream society. But those who do choose to return to civilian life are not met with the relative support and recognition of soldiers of national defence forces. Then, in Chapter 5, Cornelius Friesendorf looks at the murky area of ­soldiers engaged in crime fighting. The military have traditionally been considered inappropriate for crime fighting because they can use disproportionate force and do not have skills in crime scene preservation or the securing of evidence for legal prosecution. Friesendorf takes us through case studies of Bosnia and Kosovo, looking at army practices within military policy ­contexts. Friesendorf draws together detail on the Bosnian and Kosovian criminal contexts, describing the involvement of the British Army in the search for war criminals and in tackling organised crime, including human trafficking, illegal logging and the illegal movement of goods across borders. The key question arises: why was the British Army more proactive in the fight against crime in Bosnia and Kosovo than soldiers from other troop-­contributing countries? The different prior experiences of military forces is seen as one factor: in the case of the British Army, its long-standing involvement in Northern Ireland in both trying to keep the peace and deal with organised crime. The chapter outlines a range of divergent theoretical approaches to understand how militaries, in this case the British military, fight crime in war-torn countries, how they actually do that crime fighting, and what the effects of their practices are. In Chapter 6, the volume turns to the area of international criminal law. Grant Niemann looks at the intersection of international criminal law and national military law, arguing that a distinct criminology and penology for international crime is yet to fully emerge. His chapter outlines the historical relationship between the state and its soldiers within the context of enforcement of international criminal law. Niemann argues that for those states that have ratified the Rome Treaty of the ICC, reliance on national laws relating to military discipline do not satisfy the ‘complementarity’ obligations to bring offenders to justice before their national criminal courts. This is significant because there has been a divergent set of obligations for state parties and non-state parties to the Rome Treaty of the ICC. Indeed all state parties, Niemann argues, have partially lost this freedom of choice and the

12  Ben Wadham and Andrew Goldsmith ‘complementarity’ principle requires states to match their jurisdiction with the ICC’s jurisdiction and their crimes with the ICC’s ‘core crimes’. The examination of this phenomenon occurs through the analysis of three cases. One is the Australian case of a commando regiment conducting a night-time raid in Uruzgan Province, Afghanistan in 2009, with fatal and injurious outcomes for local women and children. Two of the Australian military personnel were charged with ‘manslaughter by negligence’ under the Defence Force Discipline Act 1980. Niemann argues that this countered previous practice, where similar crimes against the person were conducted outside of combat operations. Niemann argues convincingly that the military prosecutor for the Australian Defence Force (ADF) chose domestic law as a means of shielding the soldier, and protecting the state, from the prosecution of a war crime. The cases against these two personnel provided the opportunity for Australia to meet its international obligations as the crime met the test of complementarity, but Australia avoided the opportunity to bring its soldiers before the ICC under the jurisdiction of the Rome Treaty. In Chapter 7 Ben Wadham describes the contemporary military conundrum of developing a diverse workforce, post-conscription, while transforming the monocultural and prejudicial cultures of masculinity that characterise defence forces. He highlights this as a gendered problem, in particular one of masculinity, but focuses here on the organisational accounts of military misconduct and sex scandals. Using a sex scandal as a case study, he draws upon the criminological canon and argues that the study of individual techniques of neutralisation, can be reconsidered as techniques of naturalisation when considering organisational accounts of social transgression. The chapter demonstrates the range of criminological theories, such as the dark side of organisations (Vaughan, 1999) and Cohen’s (Cohen, 2013) institutional denial, which can be used to understand how the ­Australian military have, until recently, been characterised as ignorant or devious in their depiction of soldiers’ misconduct as the acts of a few bad apples. Wadham draws upon his own notion of camouflage to describe how militaries engage in image work in order to maintain a particular representation and thus attempt at every opportunity to depict themselves as part of the natural order, an unquestionable national icon. Chapter 8 explores the concept of military penality in the US armed forces since the early 2000s. Mark Halsey and Andrew Goldsmith focus on the ‘perverse’ relationship between the military industrial and penal industrial complex. The authors cogently argue that this alliance between the military and the penal produces a penality marked by the imperative for retribution or vengeance. The chapter outlines the litany of war-time excesses, for example through rituals of degradation at Abu Ghraib or interrogation ­(torture) practices at Guantanamo Bay. Halsey and Goldsmith outline four key ideas that sit alongside this principal notion of retribution, which they articulate across the chapter: (1) military penality is dictated by state ­vengeance;

Introduction 13 (2) war-time penality is marked by extreme forms of status degradation; (3) US military personnel are characterised by heavily racial and sexual forms of othering; and (4) these phenomena articulate across the military and penal industrial assemblage. The concerning conclusion is that US military penality are storing houses for non-people in non-places prosecuted by the state-directed mortification of the subject and subjecthood. In Chapter 9, Yorick Smaal and Graham Willett focus on military justice and homosexuality at the height of World War II. Smaal and Willett examine the ways in which military officials attempted to deal with homosexual practice (referred to here as homosex) both as a legal issue and as a vexatious disciplinary problem. The chapter shows how military culture deploys formal military law and social opprobrium, or informal disciplining for rogue personnel. Smaal and Willett successfully uncover the hidden and subterranean modes of cultural discipline that the military historically deploys—keeping things in house and within the ranks. Homosexuality was considered a threat to national security and the war effort, but with every hand on deck, it represented an intractable matter for military commanders. This chapter describes a history of military justice attempts to regulate and punish homosexual conduct in the Australian and US militaries. While military law attempted to discipline the deviant soldier, policy initiatives attempt to understand and explain it. The use of discharges was not uncommon, we are told. Nevertheless, the matter always fell between turning a blind eye and employing a mix of military justice and military rough justice. Lastly, in Chapter 10, James Sheptycki and David Mutimer contribute an epistemological focus to the subject of criminology of the military, as an area both of teaching and of research. In common with some of the earlier chapters in the collection, this chapter engages with what might be described as the inherent interdisciplinary nature of this field, one inviting, and indeed requiring, constellations of scholars to form to examine the different expressions and combinations of ideas and practices. Some of the challenges in bringing disciplinary perspectives together here are illustrated in the example given of the different meanings given to realism in criminological and international relations discourses. Militaries, they suggest, constitute extremely rich opportunity structures for the commission of many different crimes. They propose the ambitious aim of examining the diverse intersections between militarism and crime in teaching and research through ensuring that analyses include intra-organisational, inter-organisational and extra-organisational dimensions. CONCLUSION

At the time of finalising this volume (August 2017), many in the world are reflecting on the implications of a spate of recent terrorist attacks upon

14  Ben Wadham and Andrew Goldsmith civilians in cities such as Paris, London, Sydney and Manchester. One of the key questions facing authorities is how to respond to, and indeed to prevent, these activities. Inevitably, discussions have focused upon whether the police need more powers, equipment and training, and whether there is an expanded role for the military in responding to incidents of a terrorist character. Both questions point to the rising demand for more militarism in public policy responses to this challenge, whether this be in the form of greater licence to military units to play a role on the streets of our cities or in the formation of mobile special armed police units that can respond, as we saw in the recent London Borough Markets attack, quickly in order to ‘neutralise’ the attacks before too much damage and harm is caused. These developments reflect many of the challenges we have addressed in different ways in this volume: the responsibility to tackle crimes of a transnational or international nature, and how states, militaries, police forces do, and should, respond to these crimes and their perpetrators. The times we live in are likely to continue to pose a range of questions that can inform a criminology, or more likely, criminologies of the military, looking forward as well as to our present circumstances. As forms of militarism become indistinguishable from everyday conceptions of security, it is crucial we retain some critical distance as scholars and members of the public in our survey of these developments so that these changes and official responses to them are properly understood in terms of their impact and especially their unintended as well as intended consequences. REFERENCES Anechiarico, F and Jacobs, J (1996) The Pursuit of Absolute Integrity: How Corruption Control Makes Government Ineffective (Chicago, University of ­ ­Chicago Press). Beaton-Wells, C and Haines, F (2009) ‘Making Cartel Conduct Criminal: A Case Study of Ambiguity in Controlling Business Behaviour’ 42(2) Australian and New Zealand Journal of Criminology 218–43. Bosco, DL (2013) Rough Justice: The International Criminal Court in a World of Power Politics (New York, Oxford University Press). Braithwaite, J (1985) ‘White Collar Crime’ 11 Annual Review of Sociology 1–25. —— (2013) Corporate Crime in the Pharmaceutical Industry (London, Routledge). Bryant, CD (1979) Khakhi Coloured Crime: Deviant Behaviour in the Military ­Context (Toronto, Collier Macmillan). Cohen, S (2013) States of Denial: Knowing About Atrocities and Suffering (New York, John Wiley & Sons). Connor, J and Andrews, J (2013) ‘The Military, Masculinity and the Media: The 1983 Duntroon Bastardisation Scandal’, paper presented at TASA Conference 2013: Reflections, Intersections and Aspirations, Melbourne, 25–28 November. Danner, M (2004) Torture and Truth: America, Abu Ghraib, and the War on Terror (New York, New York Review Books).

Introduction 15 Enloe, CH (1980) Ethnic Soldiers: State Security in Divided Societies (Athens, ­University of Georgia Press). Evans, R (2013) ‘Hazing in the ADF: A Culture of Denial’ 10(3) The Army Journal 113–27. Feaver, PD (1996) ‘The Civil-Military Problematique: Huntington, Janowitz, and the Question of Civilian Control’ 23(2) Armed Forces and Society 149–78. —— and Kohn, R (eds) (2001) Soldiers and Civilians: The Civil Military Gap and American National Security (Massachusetts, BSCIA). Gibbs, DN (1957) ‘The National Serviceman and Military Delinquency’ 5(2) The Sociological Review 255–63. Goffman, E (1961) Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (Garden City, Doubleday Anchor). Goldsmith, A (2003) ‘Fear, Fumbling, and Frustration: Reflections on Doing ­Criminological Fieldwork in Colombia’ 3 Criminal Justice 103–25. Goldstone, RJ (2002) ‘Prosecuting Rape as a War Crime’ 34 Case Western Reserve Journal of International Law 277–85. Graham, S (2009) ‘The Urban “Battlespace”’ 26(7–8) Theory, Culture and Society 278–88. Hakeem, M (1946) ‘Service in the Armed Forces and Criminality’ 37(2) Journal of Criminal Law and Criminology 120–31. Hamm, M and Spaaij, R (2017) The Age of Lone Wolf Terrorism (New York, Columbia University Press). Hersh, S (1970) My Lai 4: A Report on the Massacre and Its Aftermath (New York, Random House). Huntington, SP (1957) The Soldier and the State: The Theory and Politics of ­Civil-Military Relations (Cambridge, Harvard University Press). Janowitz, M (1964) The Professional Soldier: A Social And Political Portrait (New York, Free Press). Kaldor, M (1999) New Wars and Old Wars: Organized Violence in a Global Era (Cambridge, Polity Press). Lea, J and Young, J (1984/1993) What is To Be Done About Law and Order? ­(London, Pluto Press). Mars, G (1973) ‘Hotel Pilferage: A Case Study of Occupational Theft’ in M Warner (ed), The Sociology of the Workplace (London, George Allen & Unwin). McGeough, P (2003) Manhattan to Baghdad: Dispatches from the Frontline in the War on Terror (Sydney, Allen & Unwin). Meron, T (1993) ‘Rape as a Crime Under International Humanitarian Law’ 87(3) American Journal of International Law 424–28. Merton, RK (1936) ‘The Unanticipated Consequences of Purposive Social Action’ 1(6) American Sociological Review 894–904. Morris, M (1996) ‘By Force of Arms: Rape, War, and Military Culture’ 45(4) Duke Law Journal 651–781. Münkler, H (2005) The New Wars (Cambridge, Polity Press). Neier, A (1998) War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice (New York, Times Books). Puar, JK (2004) ‘Abu Ghraib: Arguing Against Exceptionalism’ 30(2) Feminist ­Studies 522–34.

16  Ben Wadham and Andrew Goldsmith Razack, S (2004) Dark Threats and White Knights: The Somalia Affair, Peacekeeping, and the New Imperialism (Toronto, University of Toronto Press). Schneider, AJ and Lagrone, CW (1945) ‘Delinquents in the Army: A Statistical Study of 500 Rehabilitation Center Prisoners’ 102(1) American Journal of Psychiatry 82–91. Segal, L (1997) Slow Motion: Changing Masculinities, Changing Men (London, Virago). Seifert, R (1994) ‘War and Rape: A Preliminary Analysis’ in A Stiglmayer (ed), Mass Rape: The War Against Women in Bosnia-Herzegovina (Lincoln, University of Nebraska Press). Sutherland, EH (1983) White Collar Crime: The Uncut Version (New Haven, Yale University Press). Sykes, GM and Matza, D (1957) ‘Techniques of Neutralization: A Theory of ­Delinquency’ 22(6) American Sociological Review 664–70. Taylor, I, Walton, P and Young, J (2013) The New Criminology: For a Social Theory of Deviance (London, Routledge). Theweleit, K (1989) ‘Male Fantasies, Vol 2’ in S Conway (trans), Psychoanalyzing the White Terror (Minneapolis, University of Minnesota Press). Tilly, C (1985) ‘War Making and State Making as Organized Crime’ in PB Evans, D Rueschemeyer and T Skocpol (eds), Bringing the State Back In (Cambridge, Cambridge University Press). Trenaman, J (1952) Out of Step: A Study of Young Delinquent Soldiers in Wartime (London, Methuen & Company). Uessler, R (2008) Servants of War, Private Military Corporations and the Profit of Conflict (Berkeley, Soft Skull Press). Vaughan, D (1999) ‘The Dark Side of Organizations: Mistake, Misconduct, and Disaster’ 25 Annual Review of Sociology 271–305. Wadham, B (2004) ‘Mogan Hunts and Pig Nights: Military Masculinities and the Making of the Arms-Corps Soldier’ paper presented at TASA Conference 2004: Revisioning Institutions, Melbourne, 8–11 December. —— (2005) (Un)masking Hegemony: Militarism, White Masculinity and the Logic of Contemporary Empire 16 International Journal of Critical Psychology 146–65. Winslow, D (2004) ‘Misplaced Loyalties: The Role of Military Culture in the ­Breakdown of Discipline in Two Peace Operations’ 6(3) Journal of Military and Strategic Studies 1–19. Wolfendale, J (2007) Torture and the Military Profession (London, Palgrave). Zurbriggen, EL (2010) ‘Rape, War, and the Socialization of Masculinity: Why Our Refusal to Give Up War Ensures That Rape Cannot be Eradicated’ 34(4) ­Psychology of Women Quarterly 538–49.

1 Beyond ‘Khaki Collar Crime’ ROSS McGARRY AND EMMA MURRAY

INTRODUCTION

S

PECIFIC ATTENTION TO the military and its personnel has been the focus of sociological research for some time. Most notably, sociological interest in the military institution is associated with Stouffer et al’s (1949) large-scale social-psychological study of The American Soldier following the Second World War. Later defined as ‘military sociology’, Coates and Pelligrin (1965) note this to be an applied social science wherein the military institution and its personnel are the locus of interest, understood through the application of sociological concepts. The discipline has since developed to include broader socio-political connections beyond the military institution between the role of the soldier, the military and social policy within civil life (see inter alia Feld, 1977), in addition to, for example, the influence of the military on social and political change (see inter alia van Doorn, 1975). Guy Siebold (2001) later outlined the continued growing development of military sociology to include both internal and external relationships of the military institution with other government and nongovernment organisations, opposing forces and the societies they operate to protect. However, from its inception, the central concern of military sociology has remained its ‘object of study’ (ie the military institution and its personnel) whereby [i]ndividual subjects—such as issues of force structure, professionalization, instilling a sense of military standards and patterns of behaviour, or motivation of military personnel in peacetime and war—are in the foreground of research and that, as a consequence, military sociological analysis largely is an endeavour of social technology (Geppert, 2000: 56–57).

As an intellectual tradition military sociology therefore emphasises the objective use of research to ensure the efficacy of the institutional imperative of the military, the assimilation of personnel into its employment, and integration of the military into social life (Geppert, 2000). Whilst the further development of the discipline is well evidenced in numerous extended bodies

18  Ross McGarry and Emma Murray of work (see, for example, Caforio, 2006; Carlton-Ford and Ender, 2011; Karakatsanis and Swarts, 2014), military sociology remains a ­discipline that is ‘often viewed with uneasiness and even suspicion’ (Kümmel and Prüfert, 2000: 7). Furthermore, as Geppert (2000) reminds us, it is a discipline that can place limits on research when the authority and purpose of its ‘object of study’ are questioned. Although this brief outline should not be taken as a reading of military sociology literature in toto, what we are intentionally placing to the fore at the outset of this chapter is the more orthodox nature of military sociology and the interests that it has served and continues to serve. More recently, the emergence of a ‘critical military studies’ has begun to address the operation of military power through interdisciplinary research that seeks to ‘problematize the idea that a neat boundary can be delineated between what is “military” and what is “civilian” or otherwise’ (Basham et al, 2015: 1). Indeed, as Enloe (2015: 3) notes, ‘to be a critical military analyst is to be a sceptically curious analyst’, drawing upon an interdisciplinary base (including, for example, political and social science, human geography, international relations, anthropology and psychology) to critically assess what military sociology preserves and takes forward. It is to this more recent intellectual tradition of critical military studies that this chapter squarely aligns itself, to consider the military institution as an ‘object of study’, from the ‘sceptically curious’ position of criminology. The purpose of this chapter is to critically consider the military institution as a site of research by raising two key questions for consideration: (i) in what ways have the military and its personnel been approached as a site of criminological analysis, and (ii) what could a more fully developed ‘criminology of the military’ entail? In answering these questions, this chapter aims to illustrate the ways in which criminologists could address the ‘object of study’ of ­military sociology (ie the military institution and its personnel) from their own critical and methodological spheres of influence. To do so this chapter is arranged into four interrelated sections. First, it will briefly contextualise the study of war and the military from within the discipline of criminology. Here we discuss Clifton D Bryant’s (1979) seminal text, Khaki Collar Crime: Deviant Behaviour in the Military Context, to illustrate that although influenced by Edwin Sutherland’s ‘white collar crime’ and interests in occupational deviancy, this (internal) critical view of the military institution has been sidelined to a footnote in criminological research. Second, by noting some of the methodological shortcomings of Bryant (1979), we then go on to question how the internal setting of the military institution might be accessed as a site of critical criminological research. Advocating for the use of ethnographic methods from within the sociology of policing and critical military studies—as just one demonstration of how this might be achieved—we suggest that a critical engagement

Beyond ‘Khaki Collar Crime’ 19 within the institutional setting of the military in this way could seek to potentially uncover key areas of criminological importance that were raised, but not necessarily explored, by Bryant (1979). The third section of this chapter outlines the potential and possibilities of attempting to engage in criminological analysis of the military by situating it (and more specifically its personnel) within its external sociopolitical setting. Departing from Ruggiero’s (2005) previous consideration of war in terms of ‘international relative deprivation’, we look to Lea and Young’s (1984) original notion of ‘relative deprivation’. We do so as a way of engaging in a critical understanding of the hierarchical status of ­military personnel as broadly reconstituting the class positions from which they derive, and often return. Finally, in the fourth section we reflect upon our ­methodological and theoretical propositions to posit some reasons why criminology has yet to engage in detailed research of this nature. We suggest that the preoccupations of ‘disciplinary criminology’ (qua Jamieson, 1998) is not only broadly characteristic of the forms and functions of the attendant discipline of military sociology; we aver that it also serves to abstain from deploying critical analysis (ie ‘deviant knowledge’, qua Walters, 2003) onto the ­military institution and its personnel. In making this point we argue that limited critical criminological attention to the military and its personnel generally mimics the applied nature of military sociology (ie a functional understanding of state institutions of violence). To conclude we advocate for our discussion to be the entry point for a much wider and sophisticated feature of criminology that is sensitive to the directions it takes and is wholly inclusive of the global contexts to which these debates relate. However, our observations are not exhaustive. We recognise that we have grounded our discussion in well-established criminological and sociological knowledge developed in Anglophone parts of the world which often have much more distinct military forces operating and operable within them. We hope that the Occidental position taken within this chapter is understandable, rather than excusable, within the confines of the preliminary observations we are trying to make in the advancement of this niche area of criminology. CRIMINOLOGY, THE MILITARY AND ‘KHAKI COLLAR CRIME’: A BRIEF OVERVIEW

The subject matter of ‘crime’ has seldom been a historical concern for military sociology or more recent critical military studies. Conversely, ­ however, criminological engagement with ‘war’ as a subject matter has a long and potted history (see McGarry and Walklate, 2015, 2016). Its genealogy should be understood as distinct from historical military strategy on war

20  Ross McGarry and Emma Murray from Sun Tzu and von Clausewitz, but attendant to later classical ­sociological ­analysis as derived from Marx and others, and prevailing scholarship from the likes of Giddens (1985), Shaw (1991, 2003),1 Malešević (2010a, 2010b) and Kaldor (2013).2 Throughout the First and Second World Wars the criminogenic properties of war, and the criminality of individuals and states who participate in it, featured as the main concerns of criminology (see Bonger, 1916, 1936; Mannheim, 1941, 1965; Park, 1941; Sutherland, 1949; Cornil, 1951). This remained the case until an intervention within the ­literature during the late twentieth century by Ruth Jamieson (1998), who advocated a renewed criminological engagement with the study of war. Jamieson (1998) challenged the discipline to better conceptualise war as occurring outside of the ‘bounded’ historical contexts of the beginning and cessation of war violence, in addition to encouraging recognition of the ways in which war is gendered, morally and emotionally complex, and ­pervasive in everyday life. The study of war later came to receive some renewed attention within criminological scholarship, particularly in the Western hemisphere, where a considerable amount of work developed addressing genocide (see Alvarez, 1997; Friedrichs, 2000; Mullins and Rothe, 2008), particularly as atrocities facilitated via acts of war (Rafter, 2016). Other work continued into the twenty-first century to conceptualise war as a matter of critical criminological concern (Ruggiero 2005, 2006), much of which emerged in the wake of the 11th September attacks in North America in 2001 (9/11) (see, for example, Hayward and Morrison, 2002; Scraton, 2002; Young, 2007) and subsequent wars in Afghanistan and Iraq (Hudson 2009; Green and Ward, 2009; McGarry and Walklate, 2011; Braithwaite and Wardak, 2012; Walklate and McGarry, 2015). However, despite this long—albeit disparate—criminological engagement in the study of war (qua Jamieson 2014; McGarry and Walklate, 2015, 2016) Jamieson’s (1998) early challenge to the discipline still has resonance. One of the central preoccupations of what she termed ‘disciplinary criminology’ (ie mainstream criminology) was a concern with serving military personnel as criminals, and their perceived impact upon civilian crime statistics (Jamieson, 1998). Within criminology, military personnel have indeed been a site of micro criminological attention past (see inter alia Spencer, 1954) and present (see inter alia Emsley, 2014) in the way Jamieson (1998) suggested. Yet, although also recently considered in terms of macro issues of state policy in the geopolitical arena (see inter alia Degenhardt, 2015), a meso analysis of the military as an institutional environment has been largely absent from criminological theorising and research. 1  See also the contestable positionality of sociology to the study of war in a heated exchange in the British Journal of Sociology between Scruton (1987, 1988) and Shaw (1988). 2  See Ruggiero (2006) chapter 11 for an extended discussion on criminology, war and its sociological and criminological genealogy.

Beyond ‘Khaki Collar Crime’ 21 With few substantive examples to draw upon in previous criminological engagements with the military institution, one key feature of this type of work resides in Clifton D Bryant’s (1979) Khaki Collar Crime: Deviant Behaviour in the Military Context. This book, produced in the subsequent years following the US military’s violent engagement in the Vietnam War, took its inspiration from the previous work of Edwin Sutherland (1949) on White Collar Crime and occupational deviant activity. Taking an institutional view of the military, Bryant (1979) draws our attention to the prevalence of particular types of crime and deviance that exist and persist within the US military institution; these included routine criminological reference points of interpersonal crime, crimes against property, and drugs. Within Khaki Collar Crime we are presented with an analysis anchored to the conduct of military personnel towards the institution and one another, enemy combatants, and domestic and foreign populations whom US military personnel are serving to protect or living amongst whilst on operational duties. As Bryant (1979) illustrates, this is, however, far from a complete analysis, not simply due to it only accounting for the US military establishment. He continues by proposing the potential scope for a criminological investigation of the military beyond what is set out in the main elements of his thesis by suggesting ‘Military life is the scene of a wide variety of deviant behaviour ranging from excessive use of alcohol and narcotic addiction, to sex crimes, theft, and even mass murder’ (Bryant, 1979: 7). The broad range of criminal and deviant activity which Bryant (1979) lays out for us, from interpersonal violence to mass murder, persists from within the military institution, with occasions for illegitimate acts of state violence to be committed upon civilian and ‘enemy’ populations. Bryant (1979) therefore provides preliminary analytical access to the military helping to facilitate a criminological focus upon institutionalised deviant behaviour and violence, civil and human rights violations, war crimes and civil disobedience. Constituted quite differently from military sociology, which generally pursues analyses of the military institution in more agreeable and functional terms, this approach allows us to situate the military as an aggressive state institution which sits comfortably within the broader context of critical criminology (see, for example, DeKeseredy, 2011). Positioned in this way, as ‘sceptically curious analysts’ (qua Enloe, 2015) we are provided with a critical view of the military, an institution whose internal and routine activities might otherwise bypass criminological scrutiny as unproblematic or benign. Having established this contextual overview, in the following sections of this chapter we follow Jamieson (1999: 26) to further advocate that ‘there is more to be said’ for a criminological engagement with the institutional environment of the military. To help facilitate ways in which criminologists could begin ‘saying more’ about the military institution and its personnel we next wish to explore two areas of potentiality: methodology and theory.

22  Ross McGarry and Emma Murray This begins with a consideration of ethnography as a form of critical inquiry into the military institution as an ‘object of study’ (qua Geppert, 2000). ACCESSING THE MILITARY INSTITUTION: ETHNOGRAPHY AS CRITICAL CRIMINOLOGICAL INQUIRY

Following recognition within Khaki Collar Crime of institutionalised military life constituting a variety of deviant and violent behaviour, despite its disciplinary strictures, Bryant (1979: 7) continues by stating: Much of this behaviour may perhaps be attributed to the opportunity structure of the military system and the sociocultural and geographical settings in which the military normally operates, the informal pressures and strains inherent in military culture, as well as the structured subversion of organisational goals frequently component to the military enterprise.

This directs us pointedly to the (internal) military institutional setting as a site of critical inquiry. However, one pertinent omission from Khaki Collar Crime is an in-depth exposition of the methodology and methods employed as a means to access this environment as criminologists. Instead there is a brief methodological note addressed in the book’s preface. Here we are informed that the accounts within Khaki Collar Crime are derived from an amalgam of approaches, including socio-historical and biographical materials, personal observations of Bryant having served as a military police officer in the US Army, in addition to notes and interviews which he had taken and conducted thereafter (Bryant, 1979). Although not attributing these methods to any particular methodological orientation, we suggest that they are emblematic of autoethnographic research. As Rech and Williams (2016) note, this is an approach to understanding military events, for example, in ways that draw upon academic and experiential knowledge of the environments being studied and the researcher’s own positionality in relation to that environment. Autoethnography is not an unfamiliar method within sociological military research, as notably demonstrated by Kirke’s (2010) study of the ­British Army, as a former officer turned academic at Cranfield University, UK. ­However, experience of, and research into the military environment are somewhat uncommon within criminology as a discipline. As such, and in the possible and foreseeable absence of a reflexive position relating to the military to draw into one’s own research (see Higate and Cameron, 2006), we also advocate the use of ethnographic methods to be employed as a way of accessing this institutional environment for the purpose of critical ­analysis. For Atkinson (2015: 25): Ethnography has a particular meaning—which is narrower than the widely used ‘qualitative research’ or ‘qualitative inquiry’. The conduct of ethnographic

Beyond ‘Khaki Collar Crime’ 23 research is not based on a single method of data collection or analysis. It refers to a collection of possible methods, used singly or in combination. At its heart, however, is some form of participation in the everyday life of the social world under investigation. It is supremely a mode of understanding a setting or activity that is investigated in its complexity. What is conventionally referred to as ‘participant observation’ is at the heart of the ethnographic tradition and at the heart of ethnographic research.

In setting out this methodological position, Atkinson (2015) suggests that ethnographic researchers consider the social world as ordered in a variety of ways: visually or linguistically; in relation to structure via the affordances of time and space; through material artefacts and codes of meaning; and by way of aesthetic judgements based on social values. Indeed it is the job of the ethnographer to understand these social ordering processes and to be able to describe and analyse them using theory (Atkinson, 2015). To do so, ethnographic researchers engage with the social world through an immersive means of study, involving many varieties of qualitative methods, principally led by participant observation. Like autoethnography, there are many contemporary examples of ethnographic research relating to the military institution.3 Those concerning the internal geopolitics of the military institutional environment include Ware’s (2012) ethnographic study of ethnic minority populations serving within the British Army, and Basham’s (2013: 10) ethnographic ‘insights into the effects and role of gendered, sexual and racial discourses in the context of war and war preparedness’. Further research within operational environments at war includes Higate and Henry’s (2009) ethnographic work on peacekeepers operating at the interface of international relations and security; journalists Terrill (2008) and Junger’s (2010) embedded research with respective frontline UK and US combat troops in Afghanistan; and King’s (2013) research on military unit cohesion, observing as an ‘outsider’ academic embedded in operations with a British military unit. Other studies relating to remembrance and commemorative pilgrimages for the war dead have included Michalowski and Dubisch’s (2001) immersive ethnography of a motorcycle journey to the Vietnam Wall war memorial in the US; Murakami’s (2014: 350) study of the ‘materiality of remembering’ for veterans of the Burma Campaign; and McGarry’s (2016) recent ethnographic study of military repatriations from deaths in Afghanistan and Iraq occurring in public space in the UK. Each of these studies are illustrative of the value of engaging with ethnographic research to better understand the internal cultural setting of the military institution, its practices on operations in theatres of war and peacekeeping, and in the nuanced assimilation of coping with military losses within civic life. 3  In particular see various chapters in the excellent edited collection on military research methods from Williams et al (2016).

24  Ross McGarry and Emma Murray However, for the purposes of the criminological discussion being developed here, two further classic British exemplars of researching the cultures and practices of violent state institutions using ethnography include Simon Holdaway’s (1983) Inside the British Police: a Force at Work and John Hockey’s (1986) Squaddies: Portrait of a Subculture. Both Inside the British Police and Squaddies were written by researchers from the same academic institution4 with former occupational experiences within these institutional settings. Although these are distinct studies of the respective environments of the police and the military, as Walklate (2004: 167) has previously noted, ‘Centring the special nature of policework—its potential for danger, for entering risky situations, for the use of visible direct action—defines some of the commonalities between soldering and policework’. Juxtaposing the methodologies used to investigate the police and military within these two studies allows us to highlight the salience of ethnography for criminological research on the military. To help illustrate this point in more detail, we next consider each of these studies in turn as forms of covert and overt approaches to ethnography. Covert Ethnography as Method: Inside the British Police Holdaway’s (1983) study of the British police was conducted covertly within an environment in which he was working at the time of his research. The focus of his study explored the ‘occupational culture’ within the police and the ways in which the endowment of law and authority impacts upon the populations that are policed by those who do the ‘policing’. There are two particular ways in which this work is usefully employed as critically engaged research, predicated on issues of power and riskiness. First, H ­ oldaway (1983) avers that conducting research of this nature is crucial due to the centrality of the police as an insular institution of state power within society. Contra military sociology, he states: The police are said to be accountable to the rule of law, a constitutional constraint which restricts their right to privacy but which they can neutralize by maintaining a protective occupational culture. When such an institution is over-protective, its members restrict the right to privacy that they possess. It is important that they be researched (Holdaway, 1983: 5).

Second, Holdaway (1983: 13) continues by drawing our attention to the methodological importance and consequences of this type of research: Covert researchers therefore take risks when they publish their work: they risk the charges that they are simply engaging in a polemical exposé of an easily accessible 4 

Lancaster University, UK.

Beyond ‘Khaki Collar Crime’ 25 ‘whipping boy’ and that their data are unreliable; they risk the possibility of action for attempting to convey the truth about a powerful institution in British society; they risk the consequences of a calculated deception of trust.

What we can draw from Holdaway’s (1983) ethnographic experiences then are messages of importance, caution and consequence for engaging in critical research of state institutions. Researching environments such as the police (or the military) are important for two fundamental reasons: first, as an exposé of the authority they are empowered with; and second, to illustrate the (mis)conduct that they are able to obscure from public scrutiny. Subsequent overt ethnographic research on the police has been less ­ethically problematic than Holdaway’s (1983) study and has become more of a mainstream practice within policing sociology (see inter alia Loftus, 2010; Cosgrove and Francis, 2011). However, covert research of this nature comes with significant ethical and emotional risks to the researcher, the participants and the research environment. Moreover, challenging the routine policies and practices of such institutions (through covert research or otherwise) may indeed make the researcher the target of institutional retaliation, particularly when the practices of those institutions are called into question (qua Geppert, 2000). Importantly, however, it also brings to the fore the value of scrutinising state institutional environments as spaces of critical inquiry. Overt Ethnography as Method: Squaddies More apposite to the focus of this edited collection, Hockey’s (1986) later study of a British Army infantry battalion illustrates that an engagement with overt ethnographic research within a state institution is possible and does not necessarily have to come with the precarious baggage of covert observation. Similarly taking his inspiration from the symbolic interactionist influences of the Chicago School of Sociology, Hockey’s (1986: 6) overt participant observation presents a portrayal of ‘Army life as experienced by [enlisted] privates’ to illustrate ‘the reasons for and ­consequences of their behaviour as they become increasingly experienced soldiers’. This ethnography presents the institutional life course of enlisted military personnel from their basic training, through to peacetime duties and operational deployment at war. Hockey (1986) offers his analysis of the ‘total institution’ of the military (as Goffman, 1961 would have it), arranged across several themes, including the career and adjustment of military recruits to their environment; modes of formal and informal conduct of military rules and values; the development and management of a soldier’s self-image; and the ‘negotiated order’ of enlisted men and their

26  Ross McGarry and Emma Murray superiors in what has been defined as ‘officer/enlisted bifurcation’ (Bryant, 1979: 112). The final notion upon which Hockey (1986) draws is particularly pertinent to our criminological interests in the military institution; it also has its closest connections with Bryant’s (1979) analysis. As Hockey (1986: 9–10) explains: The final concept I wish to remark upon is that of deviance. I am using it in a very broad sense, rather than narrowly, confining my definition to serious and obvious forms of criminal behaviour … The normal events in terms of deviance are rather an endless series of misdemeanours, rule transgressions such as being late for parade, being unshaven on it, and so on. Moreover, when using deviance in the fashion I have outlined, I am not confined to actions which directly break the law but which also encompass other forms of conduct.

From Hockey (1986) we discover that ‘normal’ deviance within the military is frequently evidenced as expressions of creativity and resistance to institutional life. Thinking within these parameters brings us back to some fundamental issues of crime and deviance discussed by Bryant (1979) and rule transgressions later observed by Kirke (2010). It also importantly offers a sound methodological rationale of how and why to engage in qualitative research via ethnographic observation (qua Atkinson, 2015, noted above). But there are also absences in Hockey’s (1986) analysis that need acknowledgement in this regard too. More serious ‘abnormal’ issues that persist within military institutions (offered as a continuum of crime and deviance in Khaki Collar Crime) appear to go unacknowledged in Hockey’s (1986) work, perhaps due to them not taking place, or possibly as a consequence of the overt practice of ethnography within this setting. Examples include drug taking (qua Bryant, 1979) and alcoholism, issues of fratriarchy and sexual violence experienced by both male and female personnel (see Wadham, 2004, 2013, 2016), the vulnerable nature of soldiering as an occupation (see McGarry and Walklate, 2011; McGarry, 2012) and the violent, illegal and occasionally murderous behaviour of military personnel on operational deployment at war (see Hamm, 2007; Shiner, 2010; ­Walklate and McGarry, 2016). As such, there are opportunities and openings for criminological research to meaningfully pursue ethnographic work within the internal military milieu. In view of these observations, and having explored ethnographic ­methodology as a possible entry point into the institutional environment of the military, we next turn our attention to some potential theoretical ­directions for further ‘criminologies of the military’ to pursue. These directions are intended to illustrate ways of connecting the internal setting of the military and its personnel (as established above) to its external ­socio-political contexts.

Beyond ‘Khaki Collar Crime’ 27 RECONNECTING STRUCTURAL CONTEXT TO THE MILITARY INSTITUTION AND ITS PERSONNEL

Implicit within the previous discussion is that the namesake of ‘khaki collar crime’ tethers its analysis to the conduct and behaviour of the internal military institution in linear terms: crime and deviance are deemed to be projected outwards from the military by its personnel, or to occur within its structural borders between its personnel. The result is an insight into the military institution that fails to more adequately situate it within social and political structures beyond the institutional environment. In making our case for ethnographic research into the military we recognise how this may add to reconstituting this problematique. In pursuit of an alternative way of investigating the military beyond these internal dynamics, as Geppert (2000: 65) notes of the conservative nature of military sociology, there is instead a need for an approach that does not only deal with internal issues of the military organization, but increasingly addresses the actual peculiarities of its research object and— without ideological reservations—researches into the social conditions for the existence of the armed forces, including factors which could bring about their employment.

Taking this as our direction, we now turn to some established criminological theory to begin illustrating some connections between the internal functioning of the military and the social structures within which it is situated. We do so by focusing our attention on the interconnections between the (internal) status and (external) class of personnel recruited into the military. Relative Deprivation: Reconnecting Military Personnel with the Institution Historical shifts in criminological theorising which sought to progress analysis from macro criminological issues of ‘crimes of the powerful’ (such as white collar crime) to more targeted problems of social control and sociopolitical disenfranchisement are evident in shifts from ‘new criminology’ (qua Taylor, Walton and Young, 1979/2013) to left realist criminology. ­Taking the UK as their touchstone, Lea and Young (1984) set themselves apart from what they considered both the orthodoxy and idealism of the discipline to ‘take crime seriously’ (see also Young and Matthews, 1992; Matthews and Young, 1992). Part of this particular agenda was a rejection of the argument that crime was caused by poverty, flawed human behaviour or a lack of personal virtues (ie orthodoxy), nor were offenders to be imbued with romanticism about their activities and detached from ‘the

28  Ross McGarry and Emma Murray ­ ystifications of the conventional world’ (ie idealism) (Lea and Young, m 1984: 95). It is our suggestion that attempting to broaden a criminological analysis of the internal military milieu with its external social and political contexts is usefully served by taking influence from this theoretical approach. For example, a recent criminological examination of two murders occurring separately in the UK and Afghanistan employed the ‘square of crime’ (qua Lea, 1992)—a central analytical tenet of left realist analysis— to the contexts of war and the military (see McGarry, 2015). Within this analysis the military institution—rather than the police—were situated in a dialectic relationship to criminals, victims and the public as recognisable state agents of social control. Thus the military institution and its personnel were situated in relation to the four pillars of the ‘square of crime’, inviting us to consider how they are connected to wider socio-political concerns and matters of (in)security. However, within this preliminary analysis there was a noticeable lack of engagement with issues of class, structure and agency that a more thoroughgoing left realist analysis would pursue, and about which there is also ‘more to be said’ (qua Jamieson, 1999). To both address this shortcoming and take advantage of its theoretical potential, we next defer to another core tenet of Lea and Young’s (1984: 95) original inquiry, to which they assert: [W]e would rather put at the centre of our theory notions of relative deprivation. And a major source of one’s making comparisons—or indeed the feeling that one should, in the first place, ‘naturally’ compete and compare oneself to others—is capitalism itself (emphasis added).

The contextual relevance of this way of thinking is indelibly wedded to studies of the military. At its origin, the concept of ‘relative deprivation’ was developed from the work of Stouffer and DeVinney (1949) in the first volume of The American Soldier, only to be later adapted by Lea and Young (1984). As derived from the formative work of military sociology it was originally concerned with inter- and intra-rank divergence within the institutional setting (Stouffer and DeVinney, 1949), the salience of which was later noted in the ethnographic work of Squaddies. For example, commenting on interactions with his participants experiencing the hardships of military operations in Northern Ireland during the 1980s, John Hockey (1986: 99) observes: Very evident amongst them were strong feelings of relative deprivation, reinforced by the knowledge that the other parts of the Battalion had it easier, in the sense of less threatening or more comfortable, operational areas … this then was the venue in which the most crucial state of the privates’ career was enacted, and the dangers and discomforts of the situation were the factors to which they had to adjust (emphasis added).

This extract gives the theoretical notion of relative deprivation described above a prevailing sense of situatedness and proximity within the lived

Beyond ‘Khaki Collar Crime’ 29 experiences of the military setting, witnessed via ethnographic observation. However, for Lea and Young (1984) the application of ‘relative deprivation’ was later established in left realist criminology as a consequence of comparing oneself and one’s own circumstances to those considered to be of an equal (or superordinate) social standing. Subsequent recognition that deficits exist within one’s own social and economic relationships to others become a source of marginalisation, inequality and injustice (Young, 1992). Viewed in this way, ‘crime’ should be understood from a closer consideration of the subcultures and socio-economic conditions of those who commit it or are disproportionately in closer proximity to it in everyday life, rather than reducing ‘crime’ to individualised pathological conditions of those in poverty or experiencing unemployment. For left realists, these conditions can cause strain within factions of society (both rich and poor), disenfranchisement with political life and disengagement with social institutions, rules and norms. As such poverty is a moot issue as the ‘cause’ of crime, instead we are encouraged to look towards issues of class, status, structure and agency in a bid to ‘take crime seriously’ (Young, 1992). But in what ways does taking influence from this criminological concept help us critically consider the interconnectedness between the internal and external contexts of the military and its personnel? For the purposes of the discussion to follow we consider matters of class, status and structure to also be fundamental aspects of life within the military; critical issues that have influence prior to being recruited (see Basham, 2016), during service (see Bryant, 1979), and upon returning to civilian life (see McGarry et al, 2015). As such, we next turn to these issues to further probe the social and political setting of the military and its personnel as ‘sceptically curious ­analysts’ (qua Enloe, 2015). From Relative to Structural Deprivation: Accounting for Class, Status and Structure Despite not being the definitive social features of military institutions, as Bryant (1979) observes, the military establishment supports a caste system that prioritises particular identities and statuses, and which epitomises and perpetuates the unequal structural conditions found within relative deprivation. He states: [T]he distinction between enlisted and officer ranks has historically paralleled social-class differences. There has been a persistent pattern of privilege and deference attendant to officer rank, and an equally persistent pattern of subordination, harsh discipline, and deprivation bearing on the enlisted ranks (Bryant, 1979: 112).

Within this ‘officer/enlisted bifurcation’ (Bryant, 1979: 112) there is a power differential at work. Even if commonly understood as having more

30  Ross McGarry and Emma Murray experience and maturity than their ‘officer’ (commissioned) counterparts, ‘enlisted’ (non-commissioned) personnel—even at their highest rank—are subordinate in structural terms and retain much less status and agency within the military milieu. This arrangement, Bryant (1979) observes, was often the cause of relative deprivation within the military (as originally understood in The American Soldier) and is the root of inter-rank violence and conflict. The continued salience of relative deprivation within the military setting notwithstanding, however, the concept—as later developed by Lea and Young (1984)—also invites us to further scrutinise the institutional conditions of the military in relation to its external socio-economic contexts. From this perspective, what can also be observed from this ‘officer/ enlisted bifurcation’ (Bryant, 1979: 112) is that the structural differences between ‘enlisted’ and ‘officer’ ranks in the military are not only predicated and sustained upon clearly delineated (internal) positions of status, they are also crucially undergirded by the (external) geopolitics of class (see Basham, 2016). Although we recognise that these are not the only unequal and prejudicial social relations entrenched within military institutions (sexuality, race, ethnicity and gender, for example, are also frequently marginalised and remain continued areas of critical importance, see Basham, 2013 for example), for the purposes of our discussion we argue that the critical issues of status and class are baldly illustrated in the bifurcated recruitment of military personnel. As Woodward et al (2015) have recently noted, those joining ­University Armed Service Units (UASUs) in the UK are between 19 and 22 years of age, mainly male and disproportionately from privately educated backgrounds. Many of these young people were evidenced to show wanting to join UASUs to acquire transferable skills and CV enhancement ready for their ‘skilled’ release into the employment market (Woodward et al, 2015). Despite being embedded within some university structures in the form of extracurricular militarised activities, the British military has also targeted universities directly to recruit their next generation of officers in their recent With Heart, With Mind campaign (see ForcesWatch, 2015). Whilst officer recruits (and university students) can and do come from a variety of socioeconomic backgrounds, these observations, coupled with even a cursory understanding of the entry requirements, sponsorship arrangements (see British Army, 2016) and refined traditions of officer training (see BBC Four, 2012), illustrate that class and status are frequently transposed in the transition from civilian to military life. The same is also true, of course, for enlisted personnel. As previously noted by a UK Select Committee on Defence (2005: 263, Ev 255): It is a generally accepted truth that the Army recruits most of its [enlisted] soldiers from the lowest socio-economic groups in the country. The status of a soldier, while often admired, has never been high, and joining the Army has always been seen as a good option for young people with few qualifications or difficult pasts.

Beyond ‘Khaki Collar Crime’ 31 However, although seen as a seemingly ‘good option’ for recruits ­originating from ‘somewhat dubious backgrounds’ (qua Wessley, 2005, cited in ­Hansard, 2005: para. 41), drawing upon a rare study of the circumstances of enlisted British Army recruits, this Committee and others (see Gee, 2007; McGarry, 2014; Basham, 2016) illustrate rigid contrasts of ‘enlisted’ personnel compared to the trajectories of officer recruits targeted within universities. For example, Gee (2007: 16) reports that almost half of enlisted recruits were joining the British Army as a last resort for employment, half were classified as coming from a deprived background, over half had left school with no educational qualifications, and almost three-quarters had come from a broken home. Moreover, in contradistinction to the officer ranks pooled from university campuses, Gee and Goodman (2010) highlight that the British Army has been found to concentrate its recruitment of enlisted personnel from some of the most deprived areas in the UK, particularly London. The pursuit of this strand of British military recruitment for enlisted personnel5 can also, paradoxically, be witnessed through a further recruitment campaign entitled: This is Belonging (see British Army, 2017). As such: Taking these socio-economic circumstances into consideration, for those who join the British military this suggests that the question of ‘choice’, although made freely, may be influenced by other wider socio-demographic issues relating to a soldier’s domestic background, education and limited chances of pursuing successful civilian employment (McGarry, 2014: 85).

Structural circumstances relating class and status thereby become unambiguously rearticulated in the procurement and retirement of military ­personnel, between (external) civic life and the (internal) military institution. These observations, made via the application of relative deprivation, help advance previously depicted scenarios from Stouffer and DeVinney (1949), Bryant (1979) and Hockey (1986) as attendant institutionalised problems. More importantly, however, when connected to the criminological work of Lea and Young (1984), they also become illustrative of class and status being recreated, reaffirmed and reproduced during military service for those conjoined in an ‘officer/enlisted bifurcation’ (Bryant, 1979: 112). However, the above discussion only accounts for two stages of the process of a military career; the final stage involves returning to civilian life under a variety of different, and sometimes difficult, circumstances. A final critical issue which requires acknowledgement relates to the divergent influence of ‘military masculinity’ (qua Woodward, 2000) on service personnel: as both

5 See Basham (2016) for a further discussion of the impacts of the British government’s recent ‘military ethos’ initiatives on young working class men, ‘raised’ for the militarised purposes of army recruitment.

32  Ross McGarry and Emma Murray a functional militarised characteristic during service (to protect individuals from the vagaries of the military setting), and as a counterproductive ­barrier within the process of reintegration back into civilian life (McGarry et al, 2015). From this perspective the experience of institutional life, inclusive of relative deprivation (as discussed) or involving the extremities of violence or other more routine military activities, can also cause a ‘structural deprivation’. Following Schuetz (1945), by this we mean deficits to an individual’s social, economic and emotional capacities to successfully return to, and interact within, civilian life following the vagaries of m ­ ilitary institutionalisation. Like relative deprivation as described by Lea and Young (1984) occurring across class boundaries, a structural disjuncture with civilian life following military service can occur inter-rank, intra-rank and across rank structures. Instead of reinforcing class divisions and perpetuating social statuses outwith the military institution (as we have outlined above), structural deprivation may also propel people into pre-existing or new social difficulties post service. As such, criminality (the primary concern of Lea and Young, 1984) may therefore be but one outcome of an array of social and economic problems which ex-military individuals find themselves embroiled within before or after service (see inter alia Napo, 2008, 2009; Howard League, 2011). Other consequences may include, but are certainly not limited to, alcoholism and mental health problems (see King’s Centre for Military Health Research, 2014), resettlement and reintegration issues (see McGarry, 2014) and homelessness (see inter alia Royal British Legion, nd; Higate, 2000; Johnsen et al, 2008). Many such consequences, in terms of ‘disciplinary criminology’ (qua Jamieson, 1998), may instead be uncritically viewed as ‘deviant’ and ‘pathological’, rather than as material consequences relating to status, class and structure. As such, we consider connecting (ex-) military personnel to institutional, socio-economic and political life before, during and after service to offer ways of deepening critical criminological understanding of the military institution and to help transgress Bryant’s (1979) (internal) ‘khaki collar crime’ thesis. MOVING BEYOND KHAKI COLLAR CRIME: IN PURSUIT OF DEVIANT KNOWLEDGE

In developing our argument throughout this chapter, we have outlined methodological ways in which to critically engage with the (internal) military institution as criminologists and postulated some of the potential theoretical (external) insights this may bring to a ‘criminology of the military’. Our closing comments offer some final suggestions as to why criminology may not have already paid detailed attention to the internal and external contexts of the military institution in the ways suggested throughout this chapter.

Beyond ‘Khaki Collar Crime’ 33 Although the ways in which links between military service and criminality have begun to be articulated differently within contemporary literature (see inter alia Murray 2013, 2014, 2015, 2016; Treadwell, 2010, 2016), as Jamieson (1998) notes, criminological studies of the military have, in the main, been concerned with the impact of criminogenic military men on domestic issues of crime and disorder. Subsequent criminological studies of the military have diverted attention to a conventional understanding of ‘crime’ as routinely assumed within the domestic civilian context but occurring elsewhere (ie within the military or at war), or being committed within the civil domain by military perpetrators from the ‘outside’. This approach, both past (see inter alia Spencer, 1954) and present (see inter alia Howard League, 2011; MacManus et al, 2013, 2015; Lyne and Packham, 2014; Phillips, 2014), offers an orthodox view of the military institution, aligned to what Jamieson (1998) termed ‘disciplinary criminology’; that is, seeking to understand the occurrence and duration of war as creating a ‘school of crime’ whereby young men have undertaken ‘apprenticeships’ in violence; learning pathological deviant behaviour from the military that returns to plague civil society (Jamieson, 1998). Framed in this conventional way, the preoccupations of criminology as related to the military have been overly concerned with the impacts and implications of ex-military offenders on ‘swollen’ crime statistics (Jamieson, 1998). For Jock Young (2011) this is symptomatic of the ‘bogus of positivism’; mainstream criminology’s preoccupation with crime data as its primary means of imagining the social world in un-reflexive, nomothetic terms. As Treadwell (2010) and Brown (2015) have respectively observed of the UK and US contexts, however, such reductive interpretations of current and ex-military offending further undermine the visibility of a wider assemblage of socio-economic, political and policy consequences of military service, as we have intimated throughout this chapter. These observations notwithstanding, the question remains: why has criminology paid limited attention to the institutional environment of the military and its personnel? One way of addressing this problematique is to consider the ‘bogus’ of mainstream criminological knowledge (qua Young, 2011) as being conceptually similar to the forms and functions of the applied nature of military sociology (qua Coates and Pelligrin, 1965), including, for example, research conducted by social scientists to help better understand and maintain the relationship of state institutions (ie military, police, etc) to and with social order. For Reece Walters (2007) this constitutes research occurring within domains that he refers to as ‘embedded criminology’: research that is dominated by pragmatism, caters for the immediate needs of government (ie rising crime figures), and is only able to inform but not critically influence government policy and state institutional practices. Apropos Bonger’s (1916) observations noted some time ago regarding the purpose and perpetuation of ‘war’ serving economic and imperial interests,

34  Ross McGarry and Emma Murray the shape and production of criminological knowledge in this way is led by both p ­ rivate and state enterprise (Walters, 2007). Returning to where we began this chapter regarding the uncritical nature of military sociology regarding its ‘object of study’ (qua Geppert, 2000), similarly for Walters (2007) this type of criminological enterprise serves to perpetuate conservative knowledge that is merely invested in appeasing existing policy and state institutions, or maintaining current criminal justice practices. What becomes obscured from criminological research on state institutions such as the military is therefore a critical view from within the discipline; one that is only intermittently concerned with the military institution and its personnel once war breaks out and begins to impact upon domestic matters of crime and social disorganisation (Jamieson, 1998). What subsequently becomes sacrificed in this process are challenges to issues of power, social control and the perpetuation of social order (Walters, 2007). As Walters (2003) observes, the result of such ‘embedded’ knowledge serves to undermine critically engaged criminological research (as proposed throughout this chapter), which is instead ­considered a threat to policy makers and politicians, particularly in times of war (see Walters, 2003, chapter 5). As such, following Walters (2003), we aver that whilst capable of monitoring and illustrating criminal activity committed by military personnel in relation to domestic matters of crime and disorder, the dangerous environment of the military has generally lacked a ‘deviant knowledge’ of its own institution, practices and personnel. If considered in this way, the earlier methodological rationale for researching state institutions outlined from Holdaway (1983) carries further weight. Criminological research within institutions such as the military should be pursued to dually investigate the authority with which they are empowered and the (mis)conduct that they are able to obscure from public scrutiny. CONCLUSION

Within this chapter we have endeavoured to set a modest methodological and theoretical agenda for a more thoroughgoing engagement in criminological studies of the military institution and its personnel. We have advocated the extension of Bryant’s (1979) ‘khaki collar crime’ thesis into wider domains of methodology and criminological theory. As a way of further progressing criminological studies of the military institution we have been exercised to highlight the values of pursuing critical research as ‘sceptically curious analysts’ (qua Enloe, 2015). To illustrate this we have suggested that a methodological engagement in ethnographic research and further use of criminological theory has the potential to establish a critical scrutiny of the military institution, pertaining to its internal and external settings. We aver,

Beyond ‘Khaki Collar Crime’ 35 doing so has the potential to illuminate not only issues of ‘crime’ and ‘deviance’ within the military, but also important matters relating to the identity politics of its personnel. To finish we have suggested that a rationale for why criminological research has yet to pay significant and detailed attention to the military institution in this way is that such an approach constitutes ‘deviant knowledge’ (qua Walters, 2003); a critical way of thinking empirically and theoretically about state institutions of power and violence that may place them under threat. These observations have been made in the interests of grounding a ‘criminology of the military’ in critically engaged sociological and methodological issues at its gestation, before its objectives are quickly appropriated for other orthodox purposes in the interests of its ‘object of study’ (qua Geppert, 2000). During the embryonic stages of a more coherent agenda for criminological studies of the military (as illustrated by this edited collection) we suggest that a theoretical and empirical focus on the ‘peculiarities’ of the institution and its personnel, free from the fetters of state ideology, as noted by Geppert (2000), should be its fundamental starting position. Starting North and Looking South: Making Further Advances to this Agenda Having presented some potential ways forward in how existing methodology and theory—drawn from established sociological and criminological knowledge—could be developed to consider the military institution and its personnel, we advocate for any further advances of a ‘criminology of the military’ to progress in two ways: the first we consider to be a conventional departure, and the second as a more pressing endeavour. First, issues relating to militarism within criminal justice, punishment and social policy, and their re-enactment within crime and violence in everyday life would make pertinent observations to further a criminological analysis of the military (see inter alia Lea, 2015, 2016; Degenhardt, 2013, 2015, 2016). Second, although Bryant (1979: xi) was aware of the parochial North American focus of Khaki Collar Crime, he suggested that ‘military crime is characteristic of, and often similar to, the military establishment of any nation or political entity’. However, taking influence from Connell’s (2007) analysis in Southern Theory of the global divisions in sociological knowledge between the Northern and Southern hemispheres, exacerbated by political and ­cultural hegemony and military power, to conclude we urge caution in a unilateral reading of Bryant’s (1979) work and the literature (and ideas) deployed throughout this chapter. The arguments we have developed here have been drawn from metropolitan thought characteristic of the navel ­gazing of what is erroneously considered prevailing (read metropolitan) criminological knowledge. This has been both by default

36  Ross McGarry and Emma Murray and by design: the former due to our own Northern methodological and theoretical grounding, the latter as a means of foregrounding conceptual assumptions at the outset of this niche area of criminology. In doing so we have candidly evidenced the boundaries of current criminological scholarship in relation to the military institution and provided (at least) two opportunities for the advancement of further research. On the one hand, we advocate for others engaging in criminological ­studies of this nature to hopefully draw some conceptual influence from the type of analysis we consider is required for critically engaging with military institutions as ‘sceptically curious’ criminologists. On the other hand, however, we strongly encourage any further pursuit of military contexts to divert from ‘silo thinking’ with regard to the military and its personnel. Instead, criminological scholars pursuing critical studies of the military (ourselves included) should follow the recent call for the further development of ‘Southern Criminology’ (qua Carrington et al, 2016) that reaches beyond Anglophone nations to spaces and places where state–public and military relations are differently constituted, sometimes more fractious, complex and politically entwined. International, transnational and comparative contexts, particularly from the Global South, will have a vital salience for progressing what might come to be understood as a ‘criminology of the military’. ­Prioritising the Global North or excluding wider geopolitical contexts ­during attempts to further advance this niche area of the discipline will only serve to stifle or diminish such an endeavour and contribute to reconstituting the boundaries and borders of hegemonic criminological knowledge (qua Walklate, 2016). REFERENCES Alvarez, A (1997) ‘Adjusting to Genocide: The Techniques of Neutralization and the Holocaust’ Social Science History 21(2) 139–78. Atkinson, P (2015) For Ethnography (London, Sage). Basham, VM (2013) War, Identity and the Liberal State: Everyday Experiences of the Geopolitical in the Armed Forces (Abingdon, Routledge). Basham, VM (2016) ‘Raising an Army: The Geopolitics of Militarizing the Lives of Working-Class Boys in an Age of Austerity’ International Political Sociology 10(3) 258–74. Basham, VM, Belkin, A and Gifkins, J (2015) ‘What Is Critical Military Studies?’ Critical Military Studies 1(1) 1–2. BBC Four (2012) Sandhurst (Bristol: Icon Films, UK MoD Crown Copyright), a­ vailable from: http://www.iconfilms.co.uk/productions/recent-productions/sandhurst.html. Bonger, WA (1936/2015) An Introduction to Criminology (London, Methuen & Co). Bonger, WA (1916) Criminality and Economic Conditions (Boston, Little, Brown, & Company).

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40  Ross McGarry and Emma Murray McGarry, R (2016) ‘Conducting “Community Orientated” Military Research’ in AJ Williams, R Woodward, KN Jenkings and M Rech (eds), The Routledge Companion to Military Research Methods (Abingdon, Routledge). McGarry, R and Walklate, S (2011) ‘The Soldier as Victim: Peering Through the Looking Glass’ The British Journal of Criminology 51(6) 900–17. McGarry, R and Walklate, S (2015) ‘Introduction: Placing War within Criminology’ in S Walklate and R McGarry (eds), Criminology and War: Transgressing the Borders (Abingdon, Routledge). McGarry, R and Walklate, S (2016) ‘Introduction: The Criminology of War, What Is It Good For?’ in R McGarry and S Walklate (eds), The Palgrave Handbook of Criminology and War (Basingstoke, Palgrave Macmillan). McGarry, R, Walklate, S and Mythen, G (2015) ‘A Sociological Analysis of Military Resilience: Opening Up the Debate’ Armed Forces and Society 41(2) 352–78. Michalowski, R and Dubisch, J (2001) Run for the Wall: Remembering Vietnam on a Motorcycle Pilgrimage (New Brunswick, Rutgers University Press). Mullins, CW and Rothe, DL (2008) Blood, Power and Bedlam: Violations of International Criminal Law in Post-Colonial Africa (New York, Peter Lang Publishing). Murakami, K (2014) ‘Commemoration Reconsidered: Second World War Veterans’ Reunion as Pilgrimage’ Memory Studies 7(3) 339–53. Murray, E (2013) ‘Post-Army Trouble: Veterans in the Criminal Justice System’ Criminal Justice Matters 94(1) 20–21. Murray, E (2014) ‘Veteran Offenders in Cheshire: Making Sense of the “Noise”’ Probation Journal 61(3) 251–64. Murray, E (2015) ‘Criminology and War: Seeing Blurred Lines Clearly’ in S Walklate and R McGarry (eds), Criminology and War: Transgressing the Borders (Abingdon, Routledge). Murray, E (2016) ‘The “Veteran Offender”: A Governmental Project in England and Wales’ in R McGarry and S Walklate (eds) The Palgrave Handbook of Criminology and War (Basingstoke, Palgrave Macmillan). NAPO (2008) Ex Armed Forces Personnel and the Criminal Justice System, Briefing Paper, available at: http://www.revolving-doors.org.uk/documents/ napo-report-on-ex-forces-in-criminal-justice-systems/. NAPO (2009) Report on Ex-Forces in Criminal Justice Systems, available at: http:// www.revolving-doors.org.uk/documents/napo-report-on-ex-forces-in-criminaljustice-systems/. Park, RE (1941) ‘The Social Function of War Observations and Notes’ American Journal of Sociology 46(4) 551–70. Phillips, S (2014) Former Members of the Armed Forces and the Criminal Justice System: A Review on Behalf of the Secretary of State for Justice, available from: https://www.gov.uk/government/uploads/system/uploads/attachment_data/ file/389964/former-members-of-the-armed-forces-and-the-criminal-justicesystem.pdf. Rafter, N (2016) The Crime of all Crimes: Towards A Criminology of Genocide (New York, New York University Press). Rech, MF and Williams, AJ (2016) ‘Researching Airshows: A Dialogue about Ethnography and Authoethnography’ in AJ Williams, R Woodward, KN Jenkings and M Rech (eds), The Routledge Companion to Military Research Methods (Abingdon, Routledge).

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42  Ross McGarry and Emma Murray Wadham, B (2004) ‘Mogan Hunts and Pig Nights: Military Masculinities and the Making of the Arms-Corps Soldier’ paper presented at TASA Conference 2004: Revisioning Institutions, Melbourne, 8–11 December. Wadham, B (2013) ‘Brotherhood: Homosociality, Totality and Military Subjectivity’ Australian Feminist Studies 28(76) 212–35. Wadham, B (2016) The Dark Side of Defence: Masculinities and Violence in the Military’ in R McGarry and S Walklate (eds), The Palgrave Handbook of Criminology and War (Basingstoke, Palgrave Macmillan). Walklate, S (2004) Gender, Crime and Criminal Justice (Devon, Willan Publishing). Walklate, S (2016) ‘Wither Criminology: Its Global Futures?’ Asian Journal of Criminology 11(1) 47–59. Walklate, S and McGarry, R (2015) ‘Competing for the Trace: The Legacies of War’s Violence’ in S Walklate and R McGarry (eds), Criminology and War: Transgressing the Borders (Abingdon, Routledge). Walklate, S and McGarry, R (2016) ‘Murderousness in War: From Mai Lai to Marine A’ in S Walklate and K Fitz-Gibbon (eds), Murder, Gender and Responsibility (Abingdon, Routledge). Walters, R (2003) Deviant Knowledge: Criminology, Politics and Policy (Cullompton, Willan Publishing). Walters, R (2007) ‘Critical Criminology and the Intensification of the Authoritarian State’ in A Barton, K Corteen, D Scott and D Whyte (eds), Expanding the Criminological Imagination: Critical Readings in Criminology (Cullompton, Willan Publishing). Ware, V (2012) Military Migrants: Fighting for YOUR Country (London, Palgrave). Williams, AJ, Woodward, R, Jenkings, KN and Rech, M (eds) (2016) The Routledge Companion to Military Research Methods (Abingdon, Routledge). Woodward, R (2000) ‘Warrior Heroes and Little Green Men: Soldiers, Military Training, and the Construction of Rural Masculinities’ Rural Sociology 65(4) 640–57. Woodward, R, Jenkings, KN and Williams, AJ (2015) The Value of the University Armed Service Units (London, Ubiquity Press), available from: http://www.ubiquity­ press.com/site/books/detail/17/the-value-of-the-university-armed-service-units/. Young, J (1992) ‘Ten Points of Realism’ in J Young and JR Matthews (eds), Rethinking Criminology: The Realist Debate (London, Sage). Young, J (2007) The Vertigo of Late Modernity (London, Sage). Young, J (2011) The Criminological Imagination (Cambridge, Polity). Young, J and Matthews, JR (eds) (1992) Rethinking Criminology: The Realist Debate (London: Sage).

2 Means of Advancing Militarism: Shock, Ideology and Ethos WILLEM DE LINT

INTRODUCTION

‘S

ECURITY CREEP’, ALONGSIDE the not quite synonymous ‘securitisation’ and ‘militarisation’, is often used to denote the ­ ­phenomenon by which norms and routines associated with the institution of the military colonise or occupy the public sphere of liberal democratic policy and practice. The mechanism by which militarism becomes relatively more prolific in the ethos, including the routines or practices and rationalities of liberal democracies, is not easy to pinpoint. Surges in ­militarism—and its sister concept, authoritarianism—may appear almost anywhere, arising and overtaking public and private space sometimes as if by magic, mostly only briefly as a perceived necessity arises and then falls away. But it is often associated with a surge in xenophobic sentiment and anxiety that swells and wanes with the relative specificity and perceived proximity of a ‘security’ threat. It is therefore the objective of this analysis to underline the importance to the swelling of militarism of that specificity. I argue that militarism arrives by means of a suitable event that can be connected to both a suitable narrative or ordering principle and cultural identification or affect. In liberal democracies it is announced dramatically on the heels of a signal event and yet also appears in fits and starts. And it is oftentimes precisely the wispy temporality of ‘authority bubbles’, or places of militaristic exceptionalism, that permit the maintenance of the view that authoritarianism can co-exist, if uneasily, with the sovereignty of political liberalism. What are the features of the process by which militarisation creeps into the quotidian? In this chapter I am concerned with providing a short account of how this takes place. My provisional answer begins with the most obvious and familiar and tries to improve understanding from there. Throughout, I am assuming more or less an institutional

44  Willem de Lint criminological perspective and a liberal democratic political culture as a host environment.1 EXPANSION COMMONLY UNDERSTOOD

It is common to review militarism in the wake of (what appears to most people as) an unwelcome predicate event. Thus, in the view of Westerncentric strategic studies the US is pivoting to China on the basis of their militarisation of the South China Sea. Similarly, it is pushing eastward via NATO to meet the challenge of Russia’s ‘hybrid warfare’. On the basis of a predicate event, the US is compelled to view a variety of states as belligerents (­ Afghanistan, Iraq). It is the novel threat posed by militant non-state organisations (al-Qaeda and today ISIS fighters) that compels and permits the US and its allies to change the rules of warfare and military engagement, including who may be legitimately perceived as a military fighter. In this view of expansion, the predicate event emerges historically and is relatively un-problematised, securing the implication that military expansion follows in reaction, in the wake of an externally seeded threat. But this is only to permit a narrative that is already uncritical of the view that the historical record of such predicate events will be over-determined by the presumptive victor in an ideological and cultural context. A critical institutional criminology will take a different tack. The predicate event, it may be contended, will always be a matter of a strategic policy choice, albeit within a confluence of interests. Given the realism of super-power politics, it will mobilise that which is already awaiting mobilisation; indeed, it is quickly seized upon as the first weapon of authoritarian expansion. A DIFFERENT APPROACH: BUBBLES OF EXCEPTIONAL CONDUCT

The articulation of liberalism with authoritarian rule is of interest to those studying institutions of social control. The sociologies and criminologies of regulation have analysed how liberal governance may assert security through a variety of thick or thin regulatory devices. Shearing and others (Wood and Dupont, 2006; Wood and Shearing, 2013; Rigakos and Greener, 2000) have argued for a decentred conception of regulatory control, ‘bubbles of governance’, that attempts to provide for local or community direction over local security without giving the security problem to the state or

1  I am assuming that institutional discourses compete against one another to capture knowledge that is then utilised to expand institutional bases. Institutionalisation refers to a process by which power and knowledge express a truth within the organisation of a social good. See, for instance, Nikos Stehr (2002).

Means of Advancing Militarism: Shock, Ideology and Ethos 45 resorting to vigilantism. However, at the same time, Johnston (1992) and O’Malley and Palmer (1996), among others, have explored a political geography of public policing against the emergence of neoliberalism. In perhaps a more benign iteration, Rose (2000) and Garland (2001) have distinguished between a criminology of the self and a criminology of the other in an effort to explain the iterations between the civilising and de-civilising postures of penal authorities in ‘home’ and ‘away’ contexts. A less ‘non-ideological’ analysis of the problem of the ethos of the political community is provided by Bruff (2014), Wacquant (2009) and others ­(Neocleous, 2008; Sherry, 1995; Hall, 1988; Young, 1999). These authors have problematised a ‘disciplining’ or authoritarian neoliberalism that offers a smart regulatory prism according to which the pre-approved entrepreneurial or enterprising corporate individual may pass freely, the precriminal is subject to a variety of exceptional restrictions, and the great welfare mass is gradually disappeared from the regulatory burden. Speaking of a phenomenon that appears to have crossed the domestic policy barrier and only to have strengthened in the last 20 years, Sherry (1995) argues that militarisation has become the central pivot for American enterprise, encompassing foreign policy, economics, and the social and cultural realm.2 How may authoritarian neoliberalism be connected to a ‘new m ­ ilitarism’ (Mann, 2003) in foreign policy and the ‘normalization’ (Kraska and Kappeler, 1997) of militarised domestic security? Although militarism ­ may be variously defined, here we will follow Shaw (2012: 20) and Enloe (2000: 3) and understand it as an incremental process by which social relations gradually become controlled or dependent on military relations or ­ideals.3 It is pithily understood as the sovereignty of military authority, more or less strongly assured. Accordingly, deep militarism represents strong and attributed reference to the sovereignty of military authority in ideological, and social and economic institutions and unabashedly announces military sovereignty or military dictatorship. The Greek military junta of 1967–74 and the M ­ yanmar military junta of 1982–2011 are in this category, in which political and military decision making emanates from the precise overlap of ­military political leadership. Most militaristic political cultures are formed after a coup d’etat and are maintained against the threat of a counter-revolution. 2  Militarism is often a synonym of a certain kind of securitisation, that is to say, the interpretation of an issue of public concern or policy as a matter for national security and its instruments. Neocleous (2008) argues that a national security state emerged in the US after Navy Secretary James Forrestal used the term ‘security’ deliberately in place of ‘defense’ in discussions that attended the unification of the military services between 1945 and 1947 (Neocleous 2008: 76). As Neocleous demonstrates, the term ‘national security’ went from obscurity in 1934 to a developing concept by 1968 and now, of course, the central and trumping signifier of American politics. 3  As Shaw notes, that militarism expresses itself in new forms is not good justification to see it extending generally (2012: 22).

46  Willem de Lint In the institutions of established liberal democracy, there is relatively weaker and cautious reference to military authority, and the presumptive preservation of civilian command. Regarding the sovereignty of political action and social relations, there are several ways in which this preservation is or may threaten to become a matter of appearance or presumption. In what might be called shallow militarism, and as analysed by critical criminologists and critical security studies scholars and a variety of other scholars of securitisation, the primary mechanism is through the gradual or incremental movement of the military and in particular the realist or neo-realist view of government necessity into the domestic sphere of government activity (Buzan et al, 1998; Neocleous, 2008). In the sphere of internal security, the gradual militarisation of police agencies (use of Special Forces as aids to civilian police, deployment of military-type authorisations to use deadly force, military weapons) has been a matter of rising concern (Kraska and Kappeler, 1997; Haggerty and Ericson, 1999). Shallow militarism also occurs through the ‘bending’ of distinction between military and political authority. For example, US District Court Katherine Forrest placed a permanent injunction against the US National Defense Authorization Act for Fiscal Year 2012, in particular Section 1021, because it unconstitutionally permits the government to place in military detention indefinitely or ‘until the end of the hostilities’ any American accused of committing a belligerent act against the US, in the context of the apparent unending war against terrorists. The ambiguity of what constituted such belligerence, including protesting against a government involved in belligerent acts, prompted the ruling. However, a federal appeals court then ruled in favour of the Obama administration and the Supreme Court declined to pick up the case, leaving the provisions of the law in place. Shallow militarism conserves the appearance of civilian authority. Combined in the ideal of neoliberal doctrine, ­shallow militarism is a type of authoritarianism by which the state offloads direct responsibility and distributes the accountability of belligerent missions, relying more on proxies and private militia than on the formal declaration of war and conscription. The swell in the use of private military and intelligence contractors has been a matter of keen interest for critics of militarism (Turse, 2015; Bacevich, 2013). Relying on the presumptive and apparent hegemony of liberal democracy, shallow militarism does not rely on the permanent sovereignty of military authority.4 Quantitatively, militarism denotes the relative public resources that are devoted to the military: total military personnel, war fighting, and operational support of armed services. It can be measured as a percentage of 4  It spreads war and conflict from the perspective of the centre (rather than periphery) of the world system (Wallerstein, 2011), with the consequence that the death and violence that ensues is often not recorded as resulting directly from the proactive belligerence of empire (Arquilla, 2012; Hardt and Negri 2000).

Means of Advancing Militarism: Shock, Ideology and Ethos 47 GDP, in total budgetary monies, in comparison across nations and longitudinally. Accordingly, rising militarism is signalled by increasing military budgets, personnel and proportion of GDP. By these terms militarism waxes and wanes and is not particularly on the rise. However, ­according to Stockholm International Peace Research Institute (Perlo-Freeman and S­ olmirano, 2014), the world total expenditures fell from a high of $1.5 t­rillion US down to a little over 1 trillion in 1998 before a current post-9/11 rise with its most current figure at 1.8 trillion. The US spends about $1 trillion on defence-related purposes (Higgs, 2007), but 3.5 per cent of its GDP on military expenditures (down from 5.7 per cent in 1988) ­(Perlo-Freeman and Solmirano, 2014). It is also the world’s biggest arms trader, accounting for more than half the annual global arms trade of $72 billion (in 2014). Although relatively shallow military engagement means there are ‘no boots on the ground’, this has been interpreted to encompass the deployment of special operations forces, which, according to Turse (2015), were sent to 147 (or 75 per cent of) countries in 2015, placing them on the ground in 70 of 90 countries on any given day.5 In qualitative terms, the relative institutional weight of military interests and values in public or civic affairs incorporates an ethos or discursive formation. Militarism is a process of institutional re-bordering, a claim against the extant limits of military authority, a pitch to bend the contours of liberal democratic authorities from aversion to the police state. In a book entitled The Causes of World War Three, C. Wright Mills used the term ­‘military metaphysics’ (Mills, 1956: 67) to denote the securitisation of foreign policy issues (as military problems requiring a military solution), a phenomenon that gains momentum as military, business and political leaders serve the interdependent interests of a ‘power elite’ (Mills, 1956). According to ­Huntington, political liberalism is dependent on the terms of the jurisdiction or division of the public sector, or the prioritisation of the military in public affairs (Huntington, 1981). Although it may seem preposterous to many Americans today given prolific political commentary via social media, in the post-war period, even up into the 1970s and 1980s, being a member of the armed services meant abstinence from politics (Bacevich, 2013: xiii). The nature of a provisional or permanent readiness is the subject of a large body of work that more or less holds that militarism does not depend solely on the status of the military vis-à-vis civilian authority.6 5 Such quantitative evaluations are dependent on some unseen assumptions, such as, for instance, the ongoing deterrent capacity of the regime of mutually assured destruction. 6  Known as civil-military relations (CMR), the thesis of Huntington (1981) is that liberal democracies are inoculated against a creeping militarisation through the maintenance of a divide between political and military lifeworlds; rules and norms of a professional ethic uphold the division between civil and military authority. For Huntington, ‘objective civilian control’ provides effective military security without a lapse into civilian subordination. Such control is provided where there is a professional ethos and recognition of the boundaries of professional

48  Willem de Lint Three features of current militarism are pronounced and warrant further exploration. First, the articulation of liberal rule to military sovereignty is expedited where war is launched and continuously refreshed through a shock or spectacle. Recalling the problem of the reconciliation of established norms and emergent sovereign necessity, militarism is regularly re-announced via an irruptive and perpetual emergency. Second, militarism is refreshed or buttressed by the ideological coup or of an ordering imperative or principle. Founded upon the necessity of the exception and the exceptional authority of the pre-eminent state in an international system, it is a powerful, and for some necessary, mechanism of the continuous unfolding of imperialism/politics. Third, militarism continues to depend on an ongoing cultural coup. In this regard, the military ethos is always on the verge of becoming Orwellian doctrine or pastiche, an ethos of heart without heart that expresses the double-speak of the liberal project. I will offer a short synopsis of these means of militarisation and suggest some implications from the analysis. No doubt there are other features of the spread of militarisation, but here I will limit the argument: such advances take place by means of a signal event, a strong ideology or political reading and a narrative or story line that provides a dramatic or stark view of a besieged community or identity. MEANS OF MILITARISATION

Irruptive Security Spectacle How does the necessity of resolve for military action announce itself in ­liberal democracies? I would like to consider the possibility that one dimension of this announcement links back to the long if somewhat subterranean narrative of sovereign emergence. Let us call it, following others, the ‘dirty birth’ hypothesis. Briefly, the historical violence of states’ emergence (Tilly, 1985; Benjamin, 2008; Agamben, 1998; Brighenti, 2006) is articulated in the doctrine of sovereignty, or the monopolising of violence over a territory or population. However, sovereign authority does not simply appear out of the thin air; it is brokered after conflict or a ‘war of each against all’, as per the famous quotation from Hobbes, or stolen from ulterior peoples too savage or barbarous to muster a claim recognised by civilised colonials (Buchan and Heath, 2006). This ‘dirty birth’ narrative (Brighenti, 2006) of civilised society in a system of states is referred to variously, and sometimes in terms of a ballast against human aspiration. Agamben (1998) refers to a process roles, subordination of the military to political leadership but at the same time recognition by political leadership of the professional autonomy of the military and minimal cross-fertilising interventions (by military in politics and by politicians in military affairs).

Means of Advancing Militarism: Shock, Ideology and Ethos 49 of foundational exclusion, by which the original basis for inclusion into a group and the protection of state authority is dynamic and subject to continuous redrawing by sovereign exception. Wallerstein (2011) argues that the world system is loaded so that an ever-changing periphery will be politically excluded sufficiently so that it serves the needs of an ever-changing centre. It is unnecessary to rehearse the long history of irruptive security spectacles and their exploitation by political and cultural leaders. On 27 ­February 1933 the Nazis used an arson attack in the Session Chamber of the R ­ eichstag (the German parliament house) to sign into law the Reichstag Fire Decree, which suspended many civil liberties (including habeas corpus) and aided the solidifying of power through the purging of communists and political rivals (Tigar and Mage, 2009). The attack by the Japanese on Pearl Harbour provided the narrative to allow Roosevelt to make the declaration of war that permitted its full entry into WWII (Johnson, 2007).7 In 1964 the Gulf of Tonkin Resolution, based on ‘mistaken’ reports of attacks by the North Vietnamese against a US destroyer, permitted the US under Johnston to engage in ‘all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression’ (Moise, 1996). The attack on the Twin Towers and the Pentagon was followed almost immediately with the passage by the Senate and House of Representatives of the Authorization for Use of Military Force (AUMF), which gave the president authority ‘to take action to deter and prevent acts of international terrorism against the United States’ and lead a coalition to launch military action against Afghanistan and Iraq and other countries. In France, the attacks in Paris in November 2015 allowed President Hollande to declare ‘France is at war’ (BBC News, 16 November 2015) and join a coalition established putatively to attack the Islamic State of the Levant in Syrian airspace, against a strong reading of international law. In sum, the term ‘Reichstag fire’ now denotes a calamitous event that is exploited or staged by a political movement. As well as being irruptive, the sovereign exception is understood in the terms of a disruptive but necessary evil. In liberalism, it is both threat and utility. Locke (1980) noted the need for the prerogative to provide for expeditious executive decision making. Schmitt (1985), in a so-called ‘real world’, if tragic, account of the contextual conditions of liberal democracy (and more broadly humanity and governmental necessity or exigency), went to the heart of the matter to contend that an executive authority cannot 7  Support for engagement by the US in WWII was weak prior to Pearl Harbour, but as demonstrated in the prescient observation by the Project for the New American Century (PNAC) (2000), ‘a Pearl Harbour like attack’ is regarded by political actors as the spark that overcomes resistance to elective or ‘buccaneering’ military campaigns. However, since that declaration, the US has not declared war but has relied primarily upon congressional approval in ambiguously worded resolutions, budget appropriations to the military and selective use of the UN Security Council.

50  Willem de Lint be a hostage to the rule of law, that to exercise sovereign authority is to decide on the exception. This thinking provides the strong justification by sovereign authority to trump human rights, however temporarily. It also permits, in presumptive liberal democracies, the coexistence and sometimes the supremacy of military authority. Yet, it is at the same time an aberration on the quotidian of civil society from which it must be quarantined, and a force that can at any time in the right conditions declare martial law. This is why it is must be continuously ‘normalised’; at the same time that a warrior ethos is integrated as foundational or integral to the vitality of freedom it is understood as anathema to liberal civil society. This links the necessity of human rights abuses (in militarism) with the emergence or rejuvenation of a beleaguered sovereign authority. Currently, it is the perceived necessities of global capitalism within this paradoxical liberal order that give shape and direction to irruptive spectacles. An irruptive emergence narrative is continuous between home and away applications. By recent counts, there are between 50,000 and 80,000 paramilitary-style raids in the US per year (Shannon, 2007; Balko, 2014), the numbers having risen precipitously following 9/11. The elevation of drugs or terrorism to a matter of national security provides a means for the use of federal monies and military weapons as an adjunct to local or regional law enforcement. In Rise of the Warrior Cop, Radley Balko quotes ­Buffalo’s chief of detectives Denis Richards, who told media that Operation Shock and Awe, in which in April 2006 Buffalo police staged 38 militarystyle ‘SWAT’ raids in a three-day period—and seized a total of just under 5 pounds of marijuana—‘was just the beginning … There will be certainly be more raids in the future. You can count on that. We’re looking at smallscale, large-scale, street level … We’re looking at top to bottom’ (Balko, 2014). In addition to proffering the indifferent brutality of war, the raids, most often organised on a tip that drugs are being sold or used, are traumatising experiences for partygoers or other denizens caught up in them. Militarisation expands by awaiting and then exceeding the threat or perceived encroachment of an irruptive or spectacular security event. ­Currently, a temporary but increasingly permanent, state of war is announced and refreshed in the wake of recurring shock or spectacle. To broker a coalition in support of a militaristic agenda, actors seeking to advance at least the temporary sovereignty of the military are quick to seize upon a panic-stoked consent that follows the condition of apparent emergency. The incursion of military sovereignty into civilian or otherwise non-militarised spaces in calls for war or a state of emergency is championed in the groundswell of retrenched support for establishment institutions (‘We are all Americans’ (Colombani, 2001)).8 8  In the case of the US, which possesses or controls somewhere around half of the world’s military might (SIPRI, 2015; Fleurent et al, 2015) and is noted still as a beacon of liberal

Means of Advancing Militarism: Shock, Ideology and Ethos 51 The utility, efficacy and even validity of this interpretation of the security spectacle as a means or device of militarisation is not uncontested, and the effort to utilise such devices is far from being always successful. Against the barbarous birth thesis there is a counter-view that like human actors, states engage in a civilising process and engineer political devices to avoid direct conflict. Although the nation-state is born in blood, the international system or world system establishes norms of interaction and intra-state warfare, and violence sees a decline (Pinker, 2011; Goldstein and Pinker, 2011) despite occasional, sometimes catastrophic setbacks (Elias, 1982; Gladdis, 1987). Even in a post-Westphalian system, where a multipolar or unipolar international order consisting of peoples in addition to states and regional authorities is maintained through the devices of transnational and international agreements in global bodies including instruments of the United Nations and international law, the civilising process holds. In this view, military action is the necessary preserve of state and supra-state actors who are disciplined increasingly by liberal democratic conventions against a ready reliance on authoritarian and militaristic power. Strong Ideological Coup Situated just behind the vanguard of an ideological coup, militarism expands as politics by other means. This is one reading of Tilly’s (1985) famous essay, ‘War Making and State Making as Organized Crime’ but it is reflected in countless examinations of political cultural emergence and refreshment (Benjamin, 2008; Fanon, 1963). A strong ideological position is associated with militancy, and at the vanguard of much political ideology is coercion and violent extortion. As elaborated in Diab’s harbinger theory, according to most mainstream commentary and policy, 9/11 is not perceived as anomalous or qualitatively unique, but rather merely a quantitatively impressive instance of the ‘new order of terror’ of which it is a harbinger (Diab, 2015: 2 emphasis added), and against which precautionary militancy or ‘authoritarian legality’ must be asserted. democracy, ‘real civilian control of the military is declining’ (Mann, 2003: 252). Arms sales by the US, Britain, France and Canada to Saudi Arabia, Qatar, and many other authoritarian states involved in belligerent military campaigns also undercut the view that militarism is being conserved or reserved for the maintenance or establishment of liberal democratic government. To underscore the fragility of the liberal democratisation claim, Mann cites a great many leaders representing Libya, Egypt and Jordan, among others, who make the point that such interventionism only radicalises political communities and exacerbates anti-American and pro-terrorist sentiment. In ‘the central zone of Islam, stretching from Libya to Afghanistan’ (Mann 2003: 253) American militaristic aims deploy a discourse (over and against the means) of liberal democratisation to effect an end which is better understood as geostrategic domination, particularly to cauterise regions against Russian and Chinese influence (Escobar, 2016). Scores of regional and terrorism experts back up the contention (eg Turse, 2015; Pape, 2005).

52  Willem de Lint In order to move a problem into a call for militarism or to move militarism from shallow to deep versions, an event must be translated into a common narrative. The irruptive, spectacular security event serves to crystallise or clarify a narrative of moral order according to which, as presented by GW Bush on 20 September 2001, ‘you are either with us, or you with the terrorists’. An immediate consequence of the irruptive spectacle is a moral panic. Although almost immediately presented as an existential or national security event by opinion makers, it is also simultaneously attached to a folk devil, the recognisable bogey giving the force of public fear a clear direction. In liberal democracies corporate mass media is essential to such militarism. It provides anxiety frames and supports strong translations that sustain a unified response (Hall et al, 2013; Altheide, 1997). In the leadup to the Gulf War, Hill and Knowlton and Rendon Group were two of many American public relations firms funded by the government of Kuwait and supported by the Bush administration to sell the necessity of the war to the American public, a practice also known as psyops, or psychological operations. As documented by MacArthur (1992), the nexus between the Congressional Human Rights Group, which launched hearings on Iraqi human rights abuses in October 1990, and Hill and Knowlton was deep. It also served to provide the ‘hook’ or the catalyst to bring public opinion around, by way of hearing testimony from a 15-year-old girl who claimed to have seen Iraqi soldiers come into a Kuwait hospitals and take babies out of incubators to leave them ‘on the cold floor to die’ (MacArthur, 1992: 51) The false testimony was coached by Hill and Knowlton vice-president Lauri Fitz-Pegado. The narrative needs to hold at least long enough to support the roll-out and mobilisation of a (military) response. The reporting implicating the Saddam regime in incubator baby deaths (Gulf War) or of chemical weapons stockpiling (Gulf II) held willing leaders including HGW Bush, GW Bush and Blair long enough for a reading of the legality needed for the military invasion to clear public relations or United Nations Security Council hurdles. In the case of the latter, it needed to do so against the resistance of the largest single mass protest event in human history. Like the Reichstag fire, the incubator baby story is a security speech act, a resonant interpretation or over-determination of political will and cultural belief (Althusser, 1971). Such gambits are not always successful. A draft resolution claiming that in 2012 Syrian president al-Assad was undertaking crimes against humanity was vetoed by Russia and China and the claim of a chemical weapons attack in Damascus by the Syrian government during its civil war was also countered (Levesque and Chossudovsky, 2015). Much criticism has been launched against both the ‘end of history?’ (Fukuyama, 2006) and ‘clash of civilizations’ (Huntington, 1997) theses. These set out to answer how geopolitics would align with governmentality following the collapse of the Soviet Union and world communism. While the substantive content of both these prognostications was somewhat

Means of Advancing Militarism: Shock, Ideology and Ethos 53 misleading, the premise that a new ordering principle would depend on a robust ideological other or ‘monster to destroy’ is not. Just as successive American presidents have consolidated domestic policy through the repetition of dangerously simplified couplets (war on crime, war on drugs), so has a US-centric order depended on grand binary. As Buzan (2000: 12) has suggested, an ordering principle accords the normative order of ­‘liberal economic practice’ precedence over competing ideological politics and promotes a ‘deep state’ concordance between a military response and a preferred version of globalisation. Order is now contrasted to and justified against not communism but non-state terrorism. Somewhat ironically in the age of terrorism, ordering is achieved through a version of ‘lean and mean’ liberal democracy (Hall, 1988), encompassing authoritarian legality and muscular liberalism. For example, the neoconservatives who rose to the centre of power in the Bush administration (see Green, 2004) pushed forward a bellicose foreign policy. Charles Krauthammer (1990) said that the collapse of the Soviet Union produced a ‘unipolar moment’. Robert Kaplan (2011) agitated for the US to develop a realist ‘warrior politics’ to support cultural, economic and technological dominance in world affairs. It is worth keeping in mind that there was much pressure on military and intelligence budgets between 1989 and 2001 when there were only divergent and contradictory claims about the significant threats that needed to justify the military response. That pressure did not seriously abate until 9/11, when the US proclamation of a global war on terrorism provided the necessary ideological force to make good on the neoconservative think tank’s Project for the New ­American Century’s dream of a new age of US hegemony (Halper and Clarke, 2005). That the US was entering a phase of empire building through a ‘new militarism’ was a thesis advanced prominently by Michael Mann (2003), Clyde Prestowitz (2003), Chalmers Johnson (2007) and Andrew Bacevich (2013) among others. Post-9/11 militarism is ardent, unapologetic and continuous with a militant strain of US national security that has been dominant since the Great Depression (Sherry, 1995). At back of neoconservatism there is scholarship that upends the presumptive normative distinction between liberal democratic and authoritarian states with the argument that there is a ‘deep’, ‘secret’ or ‘inner’ state that is already the seat of power, which only rises to visibility when it asserts or seeks a specific preference that is in conflict with the everyday, nominal or regular actions of public state actors (Gill, 2012; Wise and Ross, 1964; L ­ ofgren, 2016; Scott, 2015). In one regard, the belief that behind a transparent, public and proclaimed state a secret or national security state acts as decision maker behind the decision maker is an extension of the elite theories of Pareto (1997), Mosca (Mosca et al, 1939), Michels and De Grazia (1949) and Mills (1956). In another, it is understood in an elective affinity with the unfolding of authoritarian neoliberalism that must

54  Willem de Lint occur behind the veil of liberal democracy (Wacquant, 2009; Bruff, 2014; Hall, 1988). In the work of Leo Strauss, justice is whatever is in the interest of the stronger (as per Plato’s Thrasymachus); the masses are not fit for truth or liberty and their natural and proper relation to elites is one of subordination (Strauss, 1950). Strauss’s teachings have been influential on the Reagan and Bush administrations (Drury, 1997, 2006), including several neoconservatives such as Paul Wolfowitz, William Kristol and Newt Gingrich, but also, as per Drury, explain a consonance between a ‘surface teaching’ that promotes the US as an exporter of liberal democracy and ‘nocturnal’ or ‘covert teaching’ to anointed elites. The total effect is hostile to liberalism (it softens and emasculates) and promotes perpetual war and the fascistic celebration of death and violence as America’s ‘national destiny’. Thus the doctrine requires obfuscation or secrecy and the ‘noble lie’ (Postel, 2003). As is well known, a ‘warrior politics’ within liberal democracies does not strictly depend on the political right. Of note post-1993 is the normalisation of a strong interventionism posture out of the centre left. Humanitarian interventionism has been supported by human security protagonists, the latter coming to prominence in the United Nations Development Programme, Human Development reports of 1993 and 1994 (UNDP, 1994), wherein security was reconceptualised following a shift in emphasis—from ‘territorial’ to ‘people’s’ security and from armaments to ‘sustainable’ human development. In the 1994 Report, the characteristics of human security included its universality, that it encompassed the interdependence of every part of the world, that it was best ensured through prevention (rather than intervention) and that is was people centred (UNDP, 1994: 23). Sutured to the emboldened permissiveness of human security and developed in response to the perceived failure of an international community to stop the Rwandan Genocide in 1994, the ‘responsibility to protect’ (R2P) doctrine compels states to support the international community in taking coercive measures against a sovereign state where that state has failed in its responsibility to protect its population from crimes against humanity or war crimes, genocide and ethnic cleansing. Many leading left-of-centre ‘humanitarians’ have seized upon and become staunch proponents of a broadened R2P doctrine, including Bernard Kouchner, former French foreign minister and co-founder of Medicins sans Frontières (R2P). Kouchner argues that the West has this responsibility regardless of international borders and supported the action taken against Libya in 2011, the first case in which the Security Council (under resolution 1973) authorised military intervention citing R2P, despite the fact that R2P presumptively places military intervention as a last resort (Chowdhury and Kassim, 2011). Anne-Marie Slaughter (2006), a principle advocate of the Hillary Clinton-led incursion into Libya (Slaughter, 2011), has argued that R2P has successfully shifted the onus against the presumption of Westphalian sovereignty.

Means of Advancing Militarism: Shock, Ideology and Ethos 55 There is a deeper interpretation of the ideological coup. Neocleous (2008: 11) notes as evidence that security has become so pre-eminent an issue that political science students are now not asked why and how liberty and equality must conflict, but if and when security and liberty must do so. Analysts of liberalism following Foucault argue that it is a political rationality that already conceives a particular kind of security at the highest registration or implication of the political community. In ‘Society Must be Defended’, and other tracts, Foucault (2003) and his protégés demonstrate that liberalism may be already authoritarian, built upon the normalisation and centralisation of the exception. This finds muted expression in Locke’s prerogative and endorsement in Schmitt’s concept of the sovereign. Even in the normative ideal of liberal democracy, a vital individual is conceived in terms of his or her freedom, in defence of which governments restrict their own bureaucratic growth. In the normative ideal of social democracy, however, a vital society is drawn from the uneven contributions of individual aptitudes, the unevenness of which it is for the social contract to remediate. It is, as Arendt (1973) has indicated, the response of political communities to the irreconcilable necessities of capitalism and liberalism that produces adaptations, including authoritarian liberalism.9 Whatever its many antecedents, militarisation is advanced by a confluence or elective affinity between a set of normative views about the proper unfolding of individual and national identities and a set of strong interests in an alignment with that strong ideology. Authoritarian or disciplining liberalism is supported by the presumptive first-order privilege of the executive prerogative and national security over the dependent values of liberalism and democracy, a presumptive ordering that permits martial engagements under a host of circumlocutions. National-Cultural Coup: The Cult of Curative Violence, Double-Speak Liberalism The advance of militarism in liberal democracies is dependent on an irruptive event and an interested political ideology. Without a suitable ­

9  In the event, there is much support for militarism from both centre left and centre right politics, leaving only far right libertarian and far left libertarian and so-called democratic socialists, like British Labour leader Jeremy Corbyn, to hold the ground against incursions against the growth of restrictive regulation, including militarism. A senior serving general told the Sunday Times anonymously that that ‘the general staff would not allow a prime minister to jeopardize the security of this country and I think people would use whatever means possible, fair or foul, to prevent that. You can’t possibly put a maverick in charge of the country’s security’ (McTague, 2015). In the US, similarly, anti-war politicians like Denis Kucinich and Ross Paul are on the outer fringes of the Democratic and Republican parties.

56  Willem de Lint i­ deological alignment, there is insufficient narrative certainty in the ­direction of ­militarisation or securitisation. Therefore, a cultural context is proffered as a necessary third means. Ideas do not flourish in the absence of common interests and ideological supports, and there will tend to be a saturation or intersection of interests and ideological support in institutional forces (sport, state-corporate media, public education) to nurture and project national-cultural beliefs (Althusser, 1971). The cultivation of excessive devotion to rigidly nationalistic identifications or divisions among peoples often spurs and is spurred by a narrative of noble-cause belligerence or militarism. Militarism is bolstered and fostered by government actors and interested parties who implicate the besieged authority of the sovereign state in matters of cultural preference, dogma and terror (Fanon, 1963). In this regard, a national security panic may be compared to a moral panic and involves much the same features, namely, that a flashpoint is already prepared by an anticipatory social and political narrative (cf Hall et al, 2013). In sum, there is a flashpoint, a ready narrative and a suitable ideological terrain. Thus in terms of drawing militarism into the cultural, support for the symbolism and ethos of militarism is often pronounced in social pockets of relative political or class impoverishment, where there will be a lack of plurality or cosmopolitanism in the institutional authorities (in ethnonationalism). The popularity of authoritarian or disciplinary neoliberalism is positively associated with segments of society most disadvantaged from the retreat from welfare state programmes (Rydgren, 2006). The intersection of right-wing nationalism, militarism and economic disparity and poverty is a phenomenon that has been variously interpreted, perhaps most extensively by sociologists. Violent crime has been associated with relative socio-economic impoverishment in a southern culture of violence hypothesis (Blau and Blau, 1982; Ousey and Lee, 2010). Ponticelli and Voth (2011) studied cross-country evidence between 1919 and 2008 and found a ‘clear correlation between fiscal retrenchment and instability’. Straitened social and economic conditions and lack of confidence is associated in Europe with authoritarianism and xenophobia (International Federation of the Red Cross and Red Crescent Societies (IFRCRCS), 2013: 2). From a survey of European Red Cross and Red Crescent National Societies it was concluded that the economic crisis is creating the conditions for a widespread social crisis, whereby a growing gap in the distribution of resources (the rich becoming richer and the poor becoming poorer) and the competition for shrinking resources could bring about growing xenophobia, discrimination, social exclusion, as well as abuse and domestic problems (IFRCRCS, 2013: 6).

Straitened economic and social conditions stoked in national-cultural anxieties pull populist sentiment towards a militant xenophobia.

Means of Advancing Militarism: Shock, Ideology and Ethos 57 But the attraction of bubbles of militarism is not only downward. The designation of martial virtue in the military ethos depends on a presumptive alignment between a political and economic order in a heroic ethos, a point that has attracted philosophers (Nietzsche) and great writers (Shakespeare). As de Mel (2007: 11) has noted, in Shakespeare’s Coriolanus, the hero’s virtue as a warrior is celebrated only so far as he is working for the Roman state, which is taken by de Mel to indicate that martial virtue is ‘brought into being and constituted by processes that define the sociopolitical order’. The association of the warrior ethos and iconoclastic virtue is offered by Nietzsche, for whom war begets states, is the ‘father of all good prose’ and, indeed, the ‘father of all good things’ (Nietzsche, 2001: 90). It is noteworthy that there is great tension when martial virtue is (mis-) assigned by cultural gatekeepers to characters who oppose the presumptive order, for instance militia vigilantes or ‘terrorists’. Which is to underscore one of many ironies of the military ethos: the photoshopping of a rugged individualism over the imposition of imperialistic and/or totalitarian projections. In this way, too, militarism is aligned with the neoliberal ethos, which similarly implicates the presumptive rugged individual entrepreneur in the imposition of monopolistic, antidemocratic economic programmes (such as the ­Trans-Pacific Partnership Agreement).10 In many vehicles, including film and television, cultural institutions have been a powerful purveyor of the intermingling or implication of individualistic and collectivist values in the projection of an extant ideology of socio-political ambitions. In a list of examples far too long for this ­chapter a couple of illustrations of exceptions will hopefully suffice to demonstrate the rule. In the film Apocalypse Now (1979), the Kurtz figure played by Marlon Brando is a celebrated colonel who ‘goes off the grid’ in Cambodia in order to fight with the absolute, terrorising commitment that he attributes to Viet Cong success. He must be ‘terminated’ by a heroic Special Forces soldier played by Martin Sheen. The Kurtz figure exposes all too powerfully the incoherence of the military objective (perpetual war fighting), the military ethos (heroic, noble-cause warriors divided by civility and barbarousness) and the socio-political ideology (occupation, exploitation of the other). ‘Militainment’ is a term Stahl (2009) coins to indicate the militarisation of popular culture through the mass entertainment industry. Mann (1987) conceives of a type of ‘spectator sport militarism’ to denote that audiences crave televisual wars rather as the Romans liked their blood sport. According to Stahl (2009), although there is a reduction in the numbers of soldiers and participation in soldiering among Western countries,

10  Examples pertaining to the costs that the agreement will place on signatory governments to establish or change regulatory policies are numerous. For example, Kelsey (2012) notes that the trade and investment agreement will threaten progressive policies on alcohol and tobacco.

58  Willem de Lint through the gaming industry and other popular entertainment, child and young adult consumers, in particular, are invited to play at virtual soldiering or identify social problems from within the military frame. Drone warfare has been frequently reviewed as an outcome of the gamer-military nexus (Democracy Now, 2015) and also illustrates the irony of the totalitarian or imperialist impulse under the guise of gamer iconoclasm. Apart from the episodic and cultural-economic occurrences and triggers, the means of militarisation most commented on is by way of gradual exfiltration. Military conventions and norms are smuggled into other institutional and organisational domains. These may be divided into a first order and second order. In the first order, police and border controls and various internal security organisations and institutions borrow more explicitly from military authority. In the second order, various cultural sites are colonised by military symbolism and standards of conduct or governmentalities. Militarism acts on cultural institutions and ideological organisations to support (in many respects) non-democratic and illiberal advancements by sovereign state authorities. But liberal democratic governments engage in double-speak concerning threats to cherished institutions, particularly where an alignment of military industrialists and geopolitical strategists seeks ongoing belligerent engagements in a naked will to power. Into this narrative may be added the growing interest in the nexus between the themes of strong and weak militarism and criminology. As developed by O’Malley, the ‘liberal warrior’ has enterprising and authoritative capacities. The thriving resilient subject relishes the high uncertainty of late modernity (O’Malley, 2011: 13). As we saw earlier, militarised police represent a kind of ‘shock and awe’ of authoritarian or disciplinary liberalism. SUMMARY

Much scholarship today takes the view that militarisation is an almost ­inevitable byproduct of liberal capitalism and an international system. As is evident in the debate between Pinker and his antagonists, there is a strong body of work that seeks to place militarism and authoritarianism as a regrettable or unavoidable underpinning of liberal democratisation. On the other hand, militarism is not fully explained as an inexorable ‘reality’, a foundation to civilisation’s superstructure. It can perhaps better be explained with due regard for its liminal and transient character. It emerges and enlists phenomena arguably less real, permanent and existential than those associated with social democracy. It is not only that irruption brings about militancy or authoritarian governance, but militant and authoritarian governance is irruptive on the quotidian of lived political and cultural experience. This is not, then, a rehash of the idealist versus realist debate of international relations, but a further interpretation of the presumptive ­association

Means of Advancing Militarism: Shock, Ideology and Ethos 59 of realism (as in line with the way things really are) and militarism. Thus, the emergence and legitimacy problem for armed force that is covered by idealism and realism: a normative regulatory preference (legitimacy) is reconciled with the more or less constant possibility (some say, necessity) of violent division or belligerent possession or occupation (emergence).11 CONCLUSION

Let us rehash and reconsider why we are concerned about, and what else lies behind, an anxiety regarding a revivified militarism. Conditions that are favourable to a movement from shallow to deep militarism include the devices we have briefly explored, including the security irruption, ideological coup, and national-cultural anxiety. Military might is a rhetorical and material resource that is used by established states and by emergent and non-state actors to force and enforce preferred resource distributions according to an ordering principle. Under neoliberal globalisation and the US-centred effort to maintain a unipolar world there are regional hot-spots contested for their geostrategic and economic value. 9/11 provided an irruptive event in the context of authoritarian neoliberalism and weakened civil society institutions to support the Bush administration’s neoconservativeled transformation of a relatively incoherent US foreign policy into what Michael Mann (2003) notes is a new imperialism or US militancy in the global war on terrorism. As has often been noted after Clausewitz, military force is the alternative expression of political aims. The proliferation of war and militarism is influenced by geostrategic strategy, the institutional necessity of the military-industrial complex itself and global finance capitalism (Johnson, 2007). Escalating during the Cold War and now again after 9/11, a strong ideological militarism has dominated the economy, polity and culture (Shaw, 2012: 25). American militarism is now relatively unbridled and incautious; it is more likely to be among the first-choice rather than last-chance options of American foreign policy and, arguably, domestic order and security (Mann, 2003; Bacevich, 2013). Domestically, the military ethos or military realism has been imported to several domains of civil society, copied to reform schools (Trulson et al, 2001), prisons (Burns and Vito, 1995), youth corrections (Simon, 1995), community policing (Kraska and ­Kappeler, 1997), sport (Kusz, 2007) and a host of other organisational and

11  Huntington (1981) argued that an extended military engagement such as the Cold War (currently the War on Terrorism) would weaken US security (civilianisation of the military) or the societal imperative of liberalism (militarisation of society). However, for Janowitz (1961), the permanent bases of a military readiness during a long war (Cold War) requires that the professional ethos mimic that of a police force that would be always be in readiness.

60  Willem de Lint i­nstitutional operations. Not only the fact but the character of the military ethos has consequences for the narrative that states, societies or a world system are becoming ‘civilised’ rather than (re-)brutalised. How do the virtues of courage and sacrifice belong with killing by remote control in targeted or signature strikes by drone operators? This being said, the entrenchment of militarism is still anathema to a strong version of the development of the international system and the institutions of liberal democracy, and the cross-over of the military ethos into domestic instruments of governance continues to attract resistance. The state, but particularly authoritarian or disciplining (neo)liberalism is now the object of renewed attention by critical criminologists, sociologists, legal scholars and political scientists. Its underrepresentation in explanations of ‘domestic’ criminal enterprise in mainstream accounts in media is increasingly conspicuous (Young, 1999, Wacquant, 2009). The global war on terror, often reviewed ahistorically and studied as if it can be disconnected from geostrategic initiative and ­belligerent interventionism, permits US-led foreign policy to be broadly ­conceived as incoherent (Mann, 2003). REFERENCES Agamben, G (1998) Homo Sacer: Sovereign Power and Bare Life, ed and trans ­Daniel Heller-Roazen (Stanford: Stanford University Press. Altheide, David (1997) ‘The News Media, The Problem Frame, and the Production of Fear’ 38(4) The Sociological Quarterly 647–62. Althusser, L (1971) ‘Ideology and Ideological State Apparatuses’ in Lenin and ­Philosophy and other Essays (London: New Left Books) 122–89. Arendt, H (1973) The Origins of Totalitarianism (Boston, Houghton Mifflin Harcourt). Arquilla, J (2012) ‘The Big Kill’, Foreign Policy, http://foreignpolicy.com/2012/12/03/ the-big-kill/. Bacevich, AJ (2013) The New American Militarism: How Americans Are Seduced by War (Oxford, Oxford University Press). Balko, R (2014) ‘The Militarization Of America’s Police Forces Started Getting More Extreme In The Last Decade’, Business Insider, www.businessinsider.com. au/rise-warrior-cop-radley-balko-2014-8. BBC News (2015) ‘Paris Attacks: Hollande Says “France is at War”’, BBC News, www.bbc.com/news/world-europe-34836367. Benjamin, Walter (2008) The Work of Art in the Age of Mechanical Reproduction (London, Penguin UK). Blau, JR and Blau, PM (1982) ‘The Cost of Inequality: Metropolitan Structure and Violent Crime’ 47(1) American Sociological Review 114–29. Brighenti, A (2006) ‘Dogville or the Dirty Birth of Law’ 87(1) Thesis Eleven 96–111. Bruff, I (2014) ‘The Rise of Authoritarian Neoliberalism, Rethinking Marxism’ 26(1) A Journal of Economics, Culture and Society 113–29.

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62  Willem de Lint Hall, S, Critcher, C, Jefferson, T, Clarke, J and Roberts, B (2013) Policing the Crisis: Mugging, the State and Law and Order (Basingstoke, Palgrave Macmillan) Halper, S and Clarke, J (2005) America Alone: The Neo-conservatives and the Global Order (Cambridge, Cambridge University Press). Hardt, M and Negri, A (2000) Empire (Cambridge, Harvard University Press). Higgs, R (2007) ‘The Trillion-Dollar Defense Budget Is Already Here’, Independent Institute, 15 March, www.independent.org/newsroom/article.asp?id=1941. Huntington, SP (1997) The Clash of Civilizations and the Remaking of World Order (London, Penguin). Huntington, SP (1981) The Soldier and the State: The Theory and Politics of ­Civil-military Relations (Cambridge, Harvard University Press). International Federation of the Red Cross and Red Crescent Societies (IFRCRCS) (2013) ‘Think Differently: Humanitarian Impacts of the Economic Crisis on Europe. International Federation of the Red Cross and Red Crescent Societies’, www.ifrc.org/PageFiles/134339/1260300-Economic-crisis-Report_EN_LR.pdf. pdf. Janowitz, M (1961) The Professional Soldier: A Social and Political Portrait (New York: Free Press of Glencoe). Johnson, C (2007) The Sorrows of Empire: Militarism, Secrecy, and the End of the Republic (Basingstoke, Macmillan). Johnston, L (1992) The Rebirth of Private Policing (London, Routledge). Kaplan, RD (2011) Warrior Politics: Why Leadership Demands a Pagan Ethos (New York, Random House). Kelsey, J (2012) ‘New-generation Free Trade Agreements Threaten Progressive Tobacco and Alcohol Policies 107(10) Addiction1719–21. Kraska, PB and Kappeler, VE (1997) Militarizing American Police: The Rise and Normalization of Paramilitary Units’ 44 Social Problems—New York 1–18. Krauthammer, C (1990) ‘The Unipolar Moment’ 70(1) Foreign Affairs 23–33. Kusz, KW (2007) ‘From NASCAR Nation to Pat Tillman Notes on Sport and the Politics of White Cultural Nationalism in Post-9/11 America’ 31(1) Journal of Sport & Social Issues 77–88. Levesque, J and Chossudovsky, M (2015) ‘Two Years Ago: The Ghouta C ­ hemical Attacks: US-Backed False Flag?’, Global Research, 21 August, www.globalresearch.ca/the-ghouta-chemical-attacks-us-backed..to../5351363. Locke, J (1980) Second Treatise of Government, ed CB Macpherson (Cambridge, Hackett Publishing, Classic Series). Lofgren, M (2016) The Deep State: The Fall of the Constitution and the Rise of a Shadow Government (New York, Viking). MacArthur, JR (1992) Second Front: Censorship and Propaganda in the Gulf War (Berkeley, University of California Press). Mann M (1987) ‘The Roots and Contradictions of Modern Militarism’ 162 New Left Review 35. Mann, M (2003) Incoherent Empire (London, Verso). McTague, T (2015) MailOnline, 20 September. Michels, R and De Grazia, A (1949) Roberto Michels’ First Lectures in Political Sociology (Minneapolis, University of Minnesota Press). Mills, C Wright (1956) The Power Elite (New York, Oxford University Press).

Means of Advancing Militarism: Shock, Ideology and Ethos 63 Moise, EE (1996) Tonkin Gulf and the Escalation of the Vietnam War (Durham, Univ of North Carolina Press). Mosca, G, Kahn, HD and Livingstone, A (1939) The Ruling Class: Elementi Di Scienza Politica, ed Arthur Livingston (London, McGraw-Hill). Neocleous, M (2008) Critique of Security (Montreal, McGill-Queens). Nietzsche, FW (2001) The Gay Science: With a Prelude in German Rhymes and an Appendix of Songs, ed B Williams (Cambridge, Cambridge University Press). O’Malley, P and Palmer, D (1996) ‘Post-Keynesian Policing’ 25(2) Economy and Society 137–55. O’Malley, P (2011) ‘Security after Risk: Security Strategies for Governing Extreme Uncertainty 23 Current Issues in Criminal Justice 5. Ousey, GC and Lee, MR (2010) ‘The Southern Culture of Violence and Homicidetype Differentiation: An Analysis Across Cities and Time Points 14(3) Homicide studies 268–95. Pape, R (2005) Dying to Win: The Strategic Logic of Suicide Terrorism (New York, Random House). Pareto, V (1997) ‘The Governing Elite in Present-day Democracy’ in Eva EtzioniHalevy (ed) Classes and Elites in Democracy and Democratization (New York, Garland) 47–52. Perlo-Freeman, S and Solmirano, C (2014) Trends in World Military Expenditure, 2014, Stockholm International Peace Research Institute (SIPRI) Fact Sheet April 2015. Pinker, Steven (2011) The Better Angels of Our Nature: Why Violence Has Declined (New York, Viking). Ponticelli, J and Voth, H-J (2011) ‘Austerity and Anarchy: Budget Cuts and Social Unrest in Europe, 1919–2008’, http://ssrn.com/abstract=1899287 or http://dx. doi.org/10.2139/ssrn.1899287 Postel, D (2003) Noble Lies and Perpetual War: Leo Strauss, the Neo-cons, and Iraq, Open Democracy, www.opendemocracy.net/debates/. Prestowitz, C (2003) ‘Rogue Nation’. American Unilateralism and the Failure of Good Intentions (New York, Basic Books). Project for the New American Century (2000) Rebuilding America’s Defenses: ­Strategy, Forces and Resources for a New American Century (Washington, PNAC). Rigakos, GS and DR Greener (2000) ‘Bubbles of Governance: Private Policing and the Law in Canada’ 15(01) Canadian Journal of Law and Society 145–85. Rose, N. (2000) ‘Government and Control’ 40(2) British Journal of Criminology 321–39. Rydgren, J (2006) From Tax Populism to Ethnic Nationalism: Radical Right-wing Populism in Sweden (New York, Berghahn Books). Schmitt, C (1985) Political Theology: Four Chapters on the Concept of Sovereignty, George D. Schwab (trans) (Cambridge, MIT Press, original publication 1922). Scott, PD (2015) The American Deep State: Wall Street, Big Oil and the Attack on US Democracy (Lanham, Rowman and Littlefield). Shannon III, RM (2007) ‘Nightmare on Your Street: Moving Towards ­ Justice for Innocent Victims of Wrong-premises SWAT Raids 77 Mississippi Law Journal 669.

64  Willem de Lint Shaw, M (2012) ‘Twenty-first Century Militarism: A Historical-sociological Framework’ in Anna Stavrianakis and John Selb (eds) Militarism and International Relations: Political Economy, Security, Theory (London; Routledge). Sherry, MS (1995) In the Shadow of War: The United States in the 1930s (New York, Yale). Simon, J (1995) ‘They Died with Their Boots On: The Boot Camp and the Limits of Modern Penality’ 22(2) Social Justice 25–48. Slaughter, AM (2006) ‘A New U.N. For a New Century’ 74 Fordham Law Review 2961, available at: http://ir.lawnet.fordham.edu/flr/vol74/iss6/1. Slaughter, AM (2011) ‘Was the Libyan Intervention Really an Intervention, The Atlantic 26. Stahl, R (2009) Militainment, Inc.: War, Media, and Popular Culture (New York, Routledge). Stehr, N (2002) Knowledge and Economic Conduct: The Social Foundations of the Modern Economy (vol 14) (Toronto, University of Toronto Press). Strauss, L (1950) ‘Natural Right and the Historical Approach’ 12(4) The Review of Politics 422–42. Tigar, ME and Mage, J (2009) ‘The Reichstag Fire Trial, 1933–2008: The Production of Law and History’ 60(10) Monthly Review 24. Tilly, C (1985) ‘War Making and State Making as Organized CRIME’ in T Skocpol, P Evans and D Rueschemeyer (eds), Bringing the State Back In (Cambridge, ­Cambridge University Press) 169–91. Trulson, C, Triplett, R and Snell, C (2001) ‘Social Control in a School Setting: ­Evaluating a School-based Boot Camp’ 47(4) Crime & Delinquency 573–609. Turse, N. (2008) The Complex: How the Military Invades our Everyday Lives ­(Basingstoke, Macmillan). Turse, N (2015) ‘“Tomorrow’s Battlefield”: As US Special Ops Enter Syria, Growing Presence in Africa Goes Unnoticed’, Democracy Now, 13 November. United Nations Development Program (1994) Human Development Report 1994 (New York, Oxford University Press) http://hdr.undp.org/sites/default/files/ reports/255/hdr_1994_en_complete_nostats.pdf. Wacquant, L (2009) Punishing the Poor: The Neoliberal Government of Social ­Insecurity (Durham, Duke University Press). Wallerstein, I (2011) The modern World-system I: Capitalist Agriculture and the Origins of the European World-economy in the Sixteenth Century, with a New Prologue (vol 1) (Berkeley, Univ of California Press). Wise, D and TB Ross (1964) ‘Invisible Government, The’ 39 Phil. Law Journal 478. Wood, J and Dupont, B (eds) (2006) Democracy, Society, and the Governance of Security (Cambridge, Cambridge University Press) 11–32. Wood, J and Shearing, CD (2013) Imagining Security (Abingdon, Routledge). Young, J (1999) The Exclusive Society: Social Exclusion, Crime and Difference in Late Modernity (London, Sage).

3 West African Militaries and Organised Crime GERNOT KLANTSCHNIG AND NEIL CARRIER

INTRODUCTION

G

UINEA-BISSAU, A TINY state on the West African coast, has helped focus international attention on organised crime in Africa. This state was off the radar of policy makers and criminologists for much of its history. However, since 2009 it has been labelled Africa’s ‘first ­narco-state’.1 In that year, the country’s president and the head of the armed forces were both assassinated in what appeared to be a turf war over the spoils of the cocaine trade and the higher echelons of the military have been deeply implicated in the cocaine trade ever since (Vernaschi, 2010; Vigh, 2012). In policy circles, Guinea-Bissau is today seen as the most extreme example of the threat West Africa faces from organised crime. Some would even argue that the rest of West Africa is on the verge of a similar criminalisation.2 This chapter explores links between the state and organised crime in West Africa, challenging some of the dominant narratives about these links. More specifically, the chapter scrutinises the involvement of one of the state’s most important institutions, the military, in drug smuggling, drawing on evidence from Guinea-Bissau and Nigeria. Based on secondary sources and official reports (in the case of Guinea-Bissau) and archival, interview and official data collected in Nigeria during several spells of fieldwork since 2005, the chapter assesses the extent and also the limits of the state-organised crime nexus in the sub-region. The chapter contributes to and challenges existing academic work on the African state and organised crime and it argues that recent claims of military involvement in organised crime in West Africa

1  Sunday Times, ‘West Africa’s New Achilles Heel’ (14 June 2009); El Pais, ‘El narcoestado’ (5 July 2009); New York Times, ‘Africa’s drug problem’ (11 April 2010). 2  New York Times, ‘U.S. Indicts Guinea-Bissau’s Military Chief in Drug Case’ (18 April 2013); Time Magazine, ‘How Cocaine Transformed a Tiny African Nation’ (15 October 2012); (2011).

66  Gernot Klantschnig and Neil Carrier should be seen not only as a reflection of states’ actual entanglement with criminal activities, but more importantly as part of public debates about the legitimacy of the state and one of its core institutions. While policy makers have stressed the novel nature of the threat organised crime poses to African states and its institutions, debates about the state-organised crime nexus are not new and there had been earlier concerns about states captured by crime (Cohen, 1996). In the African context, for instance, Liberian warlord and former president Charles Taylor was involved in a range of criminal activities while he was in positions of power in the 1990s and early 2000s—only for some of the most atrocious of these activities was he found guilty at The Hague in 2012 (Ellis, 2007). Claims have also been made about Nigerian military involvement in the illegal drug trade since the second half of the 1980s and, more recently, GuineaConakry’s military regime broadcast drug-related confessions of the former political elite on live television (Klantschnig, 2013).3 It is thus important to place the recent concerns and narratives about state involvement in organised crime in West Africa into their historical context before examining the evolution of state–crime links in Guinea-Bissau and Nigeria in more detail. NARRATIVES OF THE STATE–ORGANISED CRIME NEXUS

The links between organised crime and African states have been debated since the early 1990s.4 Coinciding with the end of the Cold War, a concern over the threat to global stability posed by weak and failing African states became important in international policy debates. This policy concern was initially confined to states affected by civil wars, such as Liberia and Sierra Leone, but was later extended to a broader range of states, in particular the ones seen to be under threat from terrorist and criminal networks (Menkhaus, 2010). The growing importance of criminal activities in African countries since the late 1990s was seen as a consequence of state weakness and as the most obvious example of global criminal activities threatening stability in Africa and globally. One of the earliest and most iconic portrayals of this threat came from Kaplan in his highly influential Atlantic Monthly article in 1994 entitled ‘The Coming Anarchy: How Scarcity, Crime, Overpopulation, Tribalism, and Disease Are Rapidly Destroying the Social Fabric of Our Planet’. This article became recommended reading for many officials in ­Washington and in European capitals and had a great impact on policy

3 

BBC News, ‘Conte’s Son in TV Drug Confession’ (26 February 2009). section of the chapter draws on findings presented in chapter 4 of Carrier and Klantschnig (2012). 4 This

West African Militaries and Organised Crime 67 makers (Ellis, 2007: 19, 20). Emphasising the global implications of developments in West Africa, Kaplan claimed: West Africa is becoming the symbol of worldwide demographic, environmental, and societal stress, in which criminal anarchy emerges as the real ‘strategic’ ­danger … the increasing erosion of nation-states and international borders, and the empowerment of private armies, security firms, and international drug cartels are now most tellingly demonstrated through a West African prism (Kaplan, 1994).

This concern about the regional and global implications of ‘weak African states’, ‘state failure’ and their links to international criminal activities has remained prevalent in policy circles until today, for instance in the US Department of Defense, which has been concerned about the opportunities that so-called ‘ungoverned spaces’ offer terrorists and criminals (Menkhaus, 2010: 173). There have always been two relatively distinct views about the role of ­African states in illegal activities. One view has seen African states as institutionally too weak to deter drug traffickers and other criminals. This ‘­weakness’ has been illustrated most often through African states’ porous borders and ineffective law enforcement. Due to a lack of resources and capacity, states are seen as necessarily neglectful of the criminal flows crossing their borders. Cockayne and Williams, for instance, argue that along with widespread poverty, urbanisation and youth unemployment, a ‘weak African state’ and ‘the lack of adequate forces dedicated to ­counternarcotics’ contribute to the expansion of drug trafficking and organised crime across the continent (Cockayne and Williams, 2009: 13; Williams, 2015). A second more radical view has seen the African state not only as too weak in terms of enforcement capacity but increasingly as an accomplice in criminal activities. Such a view has become widespread among policy ­makers and in the media (Costa, 2008).5 The former head of the United Nations Office on Drugs and Crime (UNODC) stated in this context: ‘Drug money is not only buying real estate and flashy cars: it is buying power’ (Costa, 2008). The African state is described as being bought by powerful organised crime groups, which gain official protection for their business or in even more extreme cases co-opt state actors such as the military into active positions within organised crime. Reno and Bayart have put forward the two most far-reaching accounts of the African state’s complicit role in organised crime. Drawing on the 1990s evidence from Liberia, Sierra Leone, Congo and Nigeria, Reno argues that in these states politicians and high-level officials actively seek involvement

5  New York Times, ‘Africa’s drug problem’ (11 April 2010); Sunday Times, ‘West Africa’s New Achilles Heel’ (14 June 2009); The Observer, ‘How a tiny West African country became the world’s first narco state’ (9 March 2008); El Pais, ‘El narcoestado’ (5 July 2009).

68  Gernot Klantschnig and Neil Carrier in commercial activities—many of them illegal—as a means to hold on to power. The context for this state transformation is the end of the Cold War, which has led to decreasing levels of international aid and foreign political support for African leaders and their domestic patronage systems. Without these resources, new illegal incomes have become integral for the rebuilding of political authority in African states (Reno, 1998: 1–28). A related argument has been proposed by Bayart, Ellis and Hibou, who have claimed that African states and their economies are in the process of criminalisation. ‘Criminalisation of politics and the state may be regarded as the routinisation, at the very heart of political and governmental ­institutions and circuits, of practices whose criminal nature is patent’ (Bayart et al, 1999: 16). The reasons for this routinisation of crime are similar to the ones suggested by Reno; the difference of this perspective is that Bayart et al take the growth of drug trafficking through African countries and reports of high-level state involvement as key evidence of this trend (Bayart et al, 1999: 9–10). Countries such as Nigeria and Guinea-Bissau are mentioned as the prime examples of this drug-related criminalisation (Ellis, 2009: 194–95). In the following, the chapter scrutinises the available evidence for the state-organised crime nexus proposed in these narratives by exploring the military’s involvement in the drug trade in Guinea-Bissau and Nigeria. Both countries were chosen purposely because they have played a key role in academic and public debates on the state-organised crime nexus in West Africa. In particular, we will examine two episodes in these countries’ histories that have been critical in discussions about the nexus: Guinea-Bissau during the late 2000s and Nigeria during the late 1980s and early 1990s. In both cases, we start by outlining the major claims about military involvement in organised crime and then relativise these claims with the available evidence. While the findings from the two cases are significantly different, this allows for some level of comparison and generalisation about state-organised crime links at the end of the chapter. Before examining the two case studies, a note about the notion of organised crime used in this chapter is necessary. As the introduction to this volume has already alluded to, crime and organised crime are not clearcut concepts and are often contested and defined in diverse ways. The line between the licit and illicit is often blurred, even more so in civil war-like situations where different participants see each other as criminals. In their recent conceptual reflection on organised crime in Africa, Ellis and Shaw have found the notion of organised crime particularly unhelpful in understanding activities that are commonly grouped into the ‘organised crime’ category in Africa. At most, they argue, it can be said that in African ­countries, the organisation of crime brings together three key actors: the state, businesses and criminals (Ellis and Shaw, 2015: 505–28). The notion of organised crime is, of course, not only contested in Africa, but also on other continents where its study is more advanced, for instance in Europe

West African Militaries and Organised Crime 69 and the US. Levi in his survey of the organised crime literature argues that ‘organised crime’ as a notion often obscures more than it reveals about the activities of criminal entrepreneurs (Levi, 2012). In order to avoid these conceptual dilemmas, this chapter looks at one specific aspect of so-called organised crime: the smuggling of illegal substances as well as the related protection for the smugglers provided by state and other actors. GUINEA-BISSAU

Guinea-Bissau, a state among the world’s poorest and economically reliant on agricultural exports, has most often been labelled as ‘criminalised’ or as a ‘narco-state’ in Africa. An influential International Crisis Group report of 2008 warned: ‘There is real risk of [Guinea-Bissau] becoming a narco-state and a political and administrative no-man’s-land, attractive to trafficking and terrorist networks in the Maghreb’. The same report also argued that ‘state criminalisation’ is one of the most serious threats facing the country today (International Crisis Group, 2008: 3, 21–24). In a similar vein, the head of the UNODC argued in the preface to a report on Guinea-Bissau: The security implications for countries like Guinea Bissau go to the very core of the state’s ability to maintain its sovereignty and integrity. There is a growing risk of some West African states being captured by foreign and local criminal networks colluding with senior officials, or even collapsing. While the situation is most acute in Guinea Bissau today, it could also develop somewhere else in the region tomorrow unless resolute steps are taken quickly (UNODC, 2008: 1).

In addition to these official depictions, reports in major international newspapers, such as the New York Times, Sunday Times and Observer of ­London, and Spanish El Pais have been similarly damning in their assessment of the situation in the country.6 Many of these publications have portrayed Guinea-Bissau as a ‘narco-state’, in particular after a supposed turf war over the control of the cocaine trade ended in the assassinations of President Viera and the head of the armed forces in March 2009. These reports were illustrated with some of the most explicit depictions of violence, criminality and instability that Africa and the Western media has seen since the end of the Sierra Leonean civil war—some not necessarily of the highest journalistic quality (Vernaschi, 2010). In some of these reports, there have also been claims that al-Qaeda, Hezbollah and the Colombian FARC had their representatives in the country to profit from the flourishing drug trade and that 6  Sunday Times, ‘West Africa’s New Achilles Heel’ (14 June 2009); The Observer, ‘How a tiny West African country became the world’s first narco state’ (9 March 2008); El Pais, ‘El narcoestado’ (5 July 2009). The photographs by Italian journalist Marco Vernaschi have had an immense impact on shaping perceptions of the state–drugs nexus in Guinea-Bissau: Time Magazine, ‘How Cocaine Transformed a Tiny African Nation’ (15 October 2012).

70  Gernot Klantschnig and Neil Carrier they further instilled a climate of violence (Vernaschi, 2010). Most recently, one of the highest military officials in Bissau, Admiral Bubo Na Tchuto, was arrested in a US sting operation off the West African coast and was tried in a New York court on charges of conspiring to import drugs into the US. The operation also implicated more senior military officials in the drug trade.7 While this sting operation undoubtedly provided proof that high-level military officials were involved in conspiring to smuggle drugs, the years before had seen the detection and subsequent disappearance of large amounts of cocaine in the country, often with the active involvement of military officials. The largest seizures took place in September 2006 when 674 kilograms were detected in a raid on a private residence, in April 2007 when 635 kilograms were seized by police but an estimated 2.5 tonnes could not be confiscated due to lack of police capacity, and in July 2008 when a clandestine plane arriving from Venezuela landed and its suspected drugs cargo disappeared. In all three cases, significant amounts of the drugs disappeared and military officials either directly obstructed the work of the judicial police or were even seen removing drugs (Vernaschi, 2010; UNODC, 2008: 10). The high and lower echelons of the military appeared to have been actively involved in the smuggling of cocaine. Shaw has provided the most empirically grounded portrayal of GuineaBissau’s involvement in the cocaine trade yet. Challenging the notion of the ‘narco-state’ used in official rhetoric, he describes the rise and fall of an elite crime network that provided safe passage for cocaine through the country. This network was initially dominated by politicians and drug traffickers, with well-connected entrepreneurs playing an important role as interlocutors. High-level politicians, such as President Viera, indirectly provided drug traffickers a level of political protection in return for financial support. Military officers played a significant role in providing support for illegal activities, for instance by obstructing the enforcement activities of the judicial police. The elite network was reconstituted by the violent events of 2009 and the country’s military started to play a much stronger role in the organisation of the trade thereafter, as it did in the running of the country itself. However, when high-level military officials tried to take control of the cocaine transit trade itself, they became more vulnerable to foreign law enforcement and this eventually led to the fall of this elite network in 2013 (Shaw, 2015). State weakness was in some ways a catalyst for some of these links between the military and organised crime, as argued by international o ­ bservers. Above all, the state was unable to enforce its control functions over its ­territory.

7  New York Times, ‘U.S. Indicts Guinea-Bissau’s Military Chief in Drug Case’ (18 April 2013).

West African Militaries and Organised Crime 71 The country has extensive unpatrolled land borders and a rugged coastline consisting of many small islands, which has made the detection of ships or planes carrying drugs hard. The country’s criminal justice system has also lacked basic infrastructure. The most often cited deficiency has been the non-existence of prison facilities, which were only set up with the help of the UN in September 2010. Law enforcement lacks the most basic equipment, such as cars to take suspected drug smugglers to the police station, and law enforcers, as well as military personnel, are easily corrupted because they are underpaid or not paid at all—a situation not uncommon in many other African militaries and law enforcement agencies (Wyler and Cook, 2009: 25). Accordingly, Guinea-Bissau also had no crime control initiatives in place until the recent pressures from the UN and Western states. Notwithstanding the strong evidence for military involvement in the drug trade, some of the subsequent claims about the state–crime nexus made in the media can be considered unfounded. There was weak evidence for al-Qaeda, Hezbollah and FARC involvement in the drug trade or ­possible connections to the military. For instance, French officials in the region confirmed that Guinea-Bissau was not a common hiding place for terrorists (International Crisis Group, 2008: 22). According to most academic experts, the widespread political violence, including the 2009 political assassinations, was also not simply triggered by the drug trade but was a ­continuation of a bloody intra-elite conflict that had been plaguing the country for decades (Wyler and Cook, 2009: 5). Forrest has argued that much of this instability and violence was the consequence of the state attempting to forcefully establish its control over its population and eliminate alternative centres of power. It was not the lack of state power that led to instability and violence but the state itself has been the major initiator of violence and chaos in the late 1990s as well as in 2009 (Forrest, 2003: 1–24, 222–32). Considering its political and economic problems, crime control efforts have not been the highest priority in Guinea-Bissau until the recent international interventions. Much of the control initiatives established there in the second half of the 2000s have been driven by UN and donor interests, which meant strengthening of the security sector with an aim of improved interdiction of cocaine shipped through its ports. However, with the continued political instability, only few long-term effects of these policies can be expected. But as one Bissau-Guinean official stated, the political instability and high turnover of government and military officials has made life much more difficult for drug smugglers, who need to find new supporters in government and in the military each time the leadership changes (US State Department, 2011). Ironically, political instability rather than the emerging control efforts of the state might be the best guarantee for the decline of Guinea-Bissau’s status as a narco-state. Further, this also shows that ‘state weakness’ and instability are not necessarily a beneficial condition for the drug trade to flourish. More stable states, such as Nigeria or South Africa,

72  Gernot Klantschnig and Neil Carrier with their own share of corruptible officials and thriving ports are often more attractive to traders in illegal as well as legal commodities. NIGERIA

As Africa’s most populous country, and recently classified as lower middleincome, Nigeria is clearly different from Guinea-Bissau. The Nigerian state has had much greater administrative power, even if one simply considers its extensive paved road network. The Nigerian state has generally had more money to spend due to the large revenues from the export of oil—even if most of it is spent inefficiently and ends up in the pockets of a small elite. Similar to Guinea-Bissau, Nigeria has faced periods of political instability and violent conflict, with a brutal civil war in the 1970s, insurrections in the Niger Delta and recent terrorist atrocities committed by Boko Haram only being the best publicised (Campbell, 2010; Maier, 2002). Violent conflict has often been seen as a reaction to the artificial nature of the state imposed through colonialism; but more frequently it was the state and intra-elite conflicts over its control that triggered or exacerbated instability and violence, as in the case of Guinea-Bissau. Long periods of military rule and highly coercive state policies from the 1960s onwards have also meant a further delegitimisation of the state (Mustapha, 2002: 161–69). Thus, while the Nigerian state had more extensive resources at its disposal, it was also weak in terms of legitimacy. As in Guinea-Bissau, the Nigerian state has shown complicity with organised criminals and especially drug smugglers. There have been recurring scandals at the country’s main drug agency, the National Drug Law Enforcement Agency (NDLEA) since its establishment in 1989 and while the ­number of these scandals began to decrease under General Abacha’s brutal war on drugs in the 1990s, the agency was never free from involvement in the trade that it was supposed to halt. Interviewed Nigerian law enforcers were quite open about the temptations that bribes from drug smugglers offered.8 In 2010 Nigeria’s most senior drug law enforcer was sentenced to a lengthy prison term due to the protection he had offered to drug traffickers.9 The military has not been immune from involvement in the drug trade either, especially as it has played such an important role in the country’s political and economic affairs since the first military coup in 1966.10 Even during this coup, the widespread use and trade in cannabis was used as

8 During fieldwork Nigerian drug law enforcers openly admitted the temptations that bribes from drug smugglers presented for junior and also senior officers. 9  This Day (Lagos), ‘Lafiaji—The Triumph of Justice’ (8 July 2010). 10  Nigeria’s postcolonial political history was dominated by the military until the advent of democratisation in the late 1990s.

West African Militaries and Organised Crime 73 a justification for military intervention into politics and leading military officials were particularly concerned about junior soldiers’ use of cannabis (Klantschnig, 2014). While these initial concerns were related to military discipline and control over the institution, senior officers started to abuse their positions of power in subsequent decades, as they offered protection to drug smugglers, comparable to—even though not as systematic as in—the case of Guinea-Bissau in the 2000s. The most well-known case was that of Brigadier Adekunle, known in Nigeria as the ‘Black Scorpion’, who became implicated in the transshipment of 80 kilograms of cannabis in 1974 (Ellis, 2009). While Adekunle’s role in the smuggling operation was never proven in court, his alleged involvement in the trade remained part of the public memory of state entanglement in the cannabis trade in Nigeria. There have also been claims about military rulers’ involvement in the drug trade. Most spectacularly, General Babangida and his wife were supposed to have benefited from drug smuggling activities in the late 1980s. A failed 1990 coup attempting to oust the General made the first explicit links between the military government and the transit trade in heroin and cocaine. The coup was motivated by internal military issues, such as the lack of upward mobility in the ranks, and came in the context of widespread popular and military resentment of economic structural adjustment at the time (Ihonvbere, 1991: 608–22). Besides highlighting structural problems in the Nigerian military and society, the 1990 coup was also a personal attack on the military ruler: I … wish to happily inform you of the successful ousting of the dictatorial, c­ orrupt, drug baronish, evil man, deceitful, homo-sexually-centred, prodigalistic, un-patriotic administration of General Ibrahim Badamosi Babangida. We have equally commenced their trials for unabated corruption, mismanagement of national economy, the murders of Dele Giwa, Major-General Mamman Vasta …11

The plotters called Babangida ‘drug baronish’ and mentioned his involvement in the murder of magazine editor Dele Giwa intentionally. Giwa had been killed by a parcel bomb sent by state security agents in 1986. Clear evidence about his murder was never released so rumours developed. It was alleged that Giwa was preparing an article about well-known heroin smuggler ­Gloria Okon.12 There were rumours that Okon had received ­official protection from the wife of Babangida, the then Chief of Army Staff.13 Many observers considered the death of Giwa related to the ­imminent ­revelations about Okon and the Babangidas.14 Four years later, when the coup plotters 11  Radio Nigeria (Lagos), ‘Speech by Major Gideon Orka’, in English 06.00 GMT (22 April 1990). Emphasis added. 12  New Nigerian (Lagos), ‘Drug Trail Puzzle’ (14 May 1985). 13  This Day (Lagos), ‘I Don’t Trust Obasanjo—Fawehinmi,’ (16 November 2004). 14  Newswatch (Lagos), ‘Sunset at Noon’ (3 November 1986) and ‘Pin in a Bomb Stack’ (10 November 1986).

74  Gernot Klantschnig and Neil Carrier ­ entioned Giwa’s murder and called Babangida a drug baron, they referred m to these allegations.15 The suspicions of narco-corruption at the top of the military government were strengthened when scandals of drug-related irregularities emerged from the newly founded national drug agency. Between 1990 and 1993 evidence surfaced that NDLEA operatives were actively involved in the drug trade as confiscated drugs disappeared from agency premises and the chairmen appointed by the military ruler were directly linked to drug ­smugglers.16 Political and media opposition to the NDLEA, its leadership and the ­Generals at the helm of the state grew, and eventually Babangida was forced out of office by popular protests in 1993.17 Part of the process of regime delegitimisation were the allegations of his involvement in the drug trade. Nonetheless, most of the claims about the military elite’s involvement in drug smuggling during the late 1980s and early 1990s can largely be considered as rumours as the military elite had derived far more significant incomes from the illegal diversion of oil revenues—a much more profitable and socially accepted ‘organised crime’ in the country—than from the relatively small-scale and stigmatised trade in heroin and cocaine (Klantschnig, 2013). While the Nigerian state’s and especially the military’s role in the drug trade was thus not as extensive as in the case of Guinea-Bissau, this is not to say that such claims were of no importance. The state–crime links—even if only on a rhetorical level—were important for another reason. The recurring concerns about the military and the elite’s links to the drug trade needed to be understood as contested—yet ­powerful—narratives (Anderson and Carrier, 2006; Autesserre, 2012). On the one hand, these narratives were used in intra-elite conflicts and especially within the military elite to discredit opponents. On the other hand, these narratives also expressed anxieties within the state itself about the lack of control over institutions such as the military, particularly its rank and file. The Nigerian military had been internally unstable since the 1960s and most political opposition and threats to senior military officers and the country’s rulers among them emanated from junior military personnel (Luckham, 1971; Shehu, 1989). Thus, concern about drug use and military involvement in the drug trade was also a reflection of the anxieties about the lack of control over the military as an institution and especially its rank and file. 15  In contrast, according to Giwa’s own magazine, the most likely reason for the parcel bomb was his investigations into large-scale government corruption scandals at the time: Newswatch (Lagos), ‘Sunset at Noon’ (3 November 1986) and ‘Pin in a Bomb Stack’ (10 November 1986). 16  Daily Times (Lagos), ‘Oyakhilome suspended’ (9 March 1991); National Concord (Lagos), ‘Drug Baron Arrested’ (28 January 1992); Obot (2004: 22). 17  Daily Times (Lagos), ‘NDLEA Stinks—Bamaiyi’ (18 February 1994); National Concord (Lagos), ‘Disbanding the NDLEA’ (15 February 1994); Daily Times (Lagos), ‘7 Directors Sacked at NDLEA’ (3 December 1993).

West African Militaries and Organised Crime 75 THE MILITARY, CRIME AND LEGITIMACY

The two cases have shown that there was some real evidence of military involvement in the drugs trade and related organised criminal activities, especially through the provision of official protection for the trade. This type of military involvement in crime was most accentuated in GuineaBissau in the late 2000s, while Nigeria faced slightly less serious involvement in the 1980s and 1990s. The reasons for the military’s involvement are difficult to ascertain but include, inter alia, individual or systematic abuses of the military’s access to the means of violence, attempts at personal enrichment by individual officers, as well as a more structural dynamic of underpaid officers gaining financial benefits through providing protection for the passage of legal and illegal goods. The proven cases of military involvement in many ways support the more general arguments made in the literature that have described a criminalisation of the state, as outlined above. However, there are important limits to such an interpretation, especially highlighted by the Nigerian example, where the claims about stateorganised crime links were rarely based on factual evidence but instead on rumours. Most problematically, many of the arguments about state and military criminalisation in the literature take these rumours as hard evidence (Bayart et al, 1999; Ellis, 2009). In contrast, this chapter argues that the level of ­criminalisation of state institutions such as the military—at least in the sphere of the drug trade—was not as severe as imagined in the literature and in media portrayals. While these claims about the state-organised crime nexus were based on dubious sources and thus largely invalid, they were nonetheless of great importance for another reason. These claims and counterclaims were part of debates about the legitimacy of the West African state and one of its key institutions. Narratives on the state-organised crime nexus served as a ­powerful rhetoric tool that helped to discredit opponents or delegitimise state actors, for instance when used by the political opposition, in popular discourse or in the media, as in 1980s and 1990s Nigeria. At the same time, the fight against organised crime and the drug trade could be used as a means to justify the work of the state and its core institutions, as was the case with Abacha’s war on drugs in Nigeria or under the military regime in Guinea-Conakry more recently. In these cases, the fight against organised crime had more to do with the image of an elite or a state than criminal activities themselves (Klantschnig, 2016; Dimova, 2016). The Nigerian case, in particular, shows that discourses on drugs and crime and their links to the military are more about internal and external challenges to the institution and about control of the military rather than about the criminal activity itself. Even in the case of Guinea-Bissau, where there was clearly more evidence for state involvement, these narratives were important. For instance, when used by international observers, these

76  Gernot Klantschnig and Neil Carrier ­ arratives helped to delegitimise an autocratic military regime or when local n policy makers used the state-crime links, it helped them to gain international attention and funding (Gibert, 2011). The issue of legitimacy and crime has significance beyond the institution of the military but for the state in Africa more generally (and arguably the state in the Global South). There is a major communality among most African states—even shared by South Africa to some degree—which has remained largely ignored in the discussions of international observers: African states lack legitimacy in the eyes of most of its citizens and even though this is a matter of degree and differs historically, this common feature had a direct impact on the state’s ability to effectively implement crime control policy. While most official and academic claims about the danger of organised crime to African states saw ‘state weakness’ as a key factor, few perceived this to be a legitimacy problem. States in Africa are obviously a problem not only because they are not effective at addressing organised crime or some state actors are actively involved in organised crime, but because states lack the legitimacy to tackle crime and other social problems in the eyes of their citizens. Most states have done so since colonial times and aside from being tools of elite enrichment, states are often perceived as coercive apparatuses by most Africans (UNDCP, 1999; Carrier and Klantschnig, 2012). As the majority of anti-crime policies emanate from the state in Africa, it is not surprising that these policies have faced difficulties of implementation, are often resisted and are largely ineffective. Thoumi has made a related argument in his work on the spread of the Colombian cocaine industry. He contended that the weak state gave the country a competitive advantage in the trade in illegal drugs. The C ­ olombian state has been fragmented regionally and along party lines for a long time and the political centre has lacked legitimacy among the majority of its population and hence it has not been able to impose its norms on its population and counter the emerging cocaine trade (Thoumi, 1995: 167–77; 199: 69–86). The Colombian case shows that administrative weakness or a context of economic underdevelopment do not by themselves lead to a ­country’s attractiveness to illegal activities as many states are ‘poor’ and ‘weak’ but few play a significant role in the drug trade. Similar to GuineaBissau and Nigeria, Thoumi points to the more underlying lack of state legitimacy that is significant. Moreover, the experience of the two states described points to a further problem with official descriptions of the military’s and state’s role in solving or contributing to Africa’s crime problems. Official portrayals commonly describe organised crime and the state’s role in it as a technical issue, such as a lack of state capacity, porous borders, missing judicial reform or state failure (UNDOC, 2008). Based on such depictions, Africa’s crime problems become well tailored to the mandates of international agencies ­dealing with crime control, however these depictions ignore the socio-economic

West African Militaries and Organised Crime 77 c­ omplexities, realities of state power and intra-elite struggles over control of the state.18 They also ignore the conceptual problems with such notions as ‘organised crime’ and the diverse activities that are lumped together under this category, as mentioned at the outset of this chapter. Finally, and as argued elsewhere, the experience of West Africa shows that international discourse on ‘weak’, ‘failing’ or ‘narco-states’ and policies to support these states and their institutions have often meant a strengthening of the state’s repressive capabilities and been at the expense of people’s human rights (Carrier and Klantschnig, 2012). The technical assistance programmes to strengthen state capacity, border control and security sector and judicial reform have usually meant more weapons, cars and gadgets for police and military officers, more harassment by officials at borders and airports and longer sentences for the small fry of criminals caught by the state. Such policies have simply meant an extension of the powers of state agencies loathed by most Africans. REFERENCES Anderson, D and Carrier, C (2006) ‘‘‘Flowers of Paradise” or “Polluting the Nation”, Contested Narratives of Khat Consumption’ in J Brewer and F Trentmann (eds), Consuming Cultures, Global Perspectives, Historical Trajectories, Transnational Exchanges (Oxford, Berg). Autesserre, S (2012) ‘Dangerous Tales, Dominant Narratives on the Congo and their Unintended Consequences’ 111(443) African Affairs 202–22. Bayart, JF, Ellis, S and Hibou, B (1999) The Criminalization of the State in Africa (Oxford, James Currey). Campbell, J (2010) Nigeria, Dancing on the Brink (Lanham, Rowman and Littlefield). Carrier, N and Klantschnig, G (2012) Africa and the War on Drugs (London, Zed Books). Cockayne, J and Williams, P (2009) The Invisible Tide, Towards an International Strategy to Deal with Drug Trafficking Through West Africa (New York, International Peace Institute). Cohen, S (1996) ‘Crime and Politics, Spot the Difference’ 47 British Journal of ­Sociology 1. Costa, AM (2008) ‘Remarks Delivered at the Opening of the ECOWAS High-level Conference on Drug Trafficking as a Security Threat in West Africa’, 28 October, Praia, Cape Verde. Dimova, M (2016) ‘“The First Dragon to Slay”, Unpacking Kenya’s War on Drugs’ 43(148) Review of African Political Economy. Ellis, S (2007) The Mask of Anarchy, the Destruction of Liberia and the Religious Dimension of an African Civil War, 2nd edn (London, Hurst). 18 A similar argument is made by Ferguson (1996) in relation to the ‘depoliticization of development’.

78  Gernot Klantschnig and Neil Carrier Ellis, S (2009) ‘West Africa’s International Drug Trade’ 108 African Affairs 431. Ellis, S and Shaw, M (2015) ‘Does Organised Crime Exist in Africa’ 114(457) ­African Affairs 505–28. Ferguson, J (1996) The Anti-Politics Machine, ‘Development’, Depoliticization, and Bureaucratic Power in Lesotho (Minneapolis, University of Minnesota Press). Forrest, J (2003) Lineages of State Fragility, Rural Civil Society in Guinea-Bissau (Oxford, James Currey). Gibert, M (2011) ‘The Securitisation of the EU’s Development Agenda in Africa, Insights from Guinea-Bissau’ in X Kurowska and P Pawlak (eds), The Politics of European Security Policies (London, Routledge). Ihonvbere, JO (1991) ‘A Critical Evaluation of the Failed 1990 Coup in Nigeria’ 29 Journal of Modern African Studies 608–22. International Crisis Group, Guinea-Bissau, In Need of a State (2008)—Africa Report No 142 (Brussels, ICG). Kaplan, R (1994) ‘The Coming Anarchy, How Scarcity, Crime, Overpopulation, Tribalism, and Disease Are Rapidly Destroying the Social Fabric of Our Planet’ Atlantic Monthly, February. Klantschnig, G (2013) Crime, Drugs and the State in Africa, The Nigerian Connection (Leiden, Brill/RoL). Klantschnig, G (2014) ‘Histories of Cannabis Use and Control in Nigeria, 1927–1967’ in G Klantschnig, N Carrier and C Ambler (eds), Drugs in Africa: Histories and Ethnographies of Use, Trade and Control (New York, Palgrave) 69–88. Klantschnig, G (2016) ‘The Politics of Drug Control in Nigeria, Exclusion, Repression and Obstacles to Policy Change’ 30 International Journal of Drug Policy 132–39. Levi, M (2012) ‘The Organization of Serious Crimes for Gain’ in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology, 5th edn (Oxford, Oxford University Press). Luckham, R (1971) The Nigerian Military: A Sociological Analysis of Authority & Revolt, 1960–67 (Cambridge, Cambridge University Press). Maier, K (2002) This House has Fallen: Nigeria in Crisis (London, Penguin). Menkhaus, K (2010) ‘State Failure and Ungoverned Space’ in M Berdal and A ­Wennmann (eds), Ending Wars, Consolidating Peace, Economic Perspectives (London, Routledge). Mustapha, AR (2002) ‘Coping with Diversity, The Nigerian State in Historical Perpective’ in AI Samatar, A Samatar, and AR Mustapha (eds), The African State, Reconsiderations (Portsmouth, Heineman). Obot, IS (2004) ‘Assessing Nigeria’s Drug Control Policy, 1994–2000’ International Journal of Drug Policy 15. Reno, W (1998) Warlord Politics and African States (Boulder, Lynne Rienner). Shaw, M (2015) ‘Drug Trafficking in Guinea-Bissau, 1998–2014, the Evolution of an Elite Protection Network’ 53(3) Journal of Modern African Studies 339–64. Shehu, O (1989) ‘Nigeria, Power for Profit—Class, Corporatism, and Factionalism in the Military’ in D Cruise O’Brien, J Dunn and R Rathbone (eds), C ­ ontemporary West African States (Cambridge, Cambridge University Press). Wyler, LS and Cook, N (2009) Illegal Drug Trade in Africa, Trends and U.S. Policy (Washington, DC, Congressional Research Service).

West African Militaries and Organised Crime 79 Thoumi, F (1995) Political Economy and Illegal Drugs in Colombia (Boulder, Lynne Rienner). Thoumi, F, (1999) ‘The Role of the State, Social Institutions and Social Capital in Determining Competitive Advantage in Illegal Drugs in the Andes’ 5 Transnational Organized Crime 69–86. UN Security Council (2011) Report of the Secretary-General on developments in Guinea-Bissau and on the activities of the United Nations Integrated Peacebuilding Office in that country (New York, United Nations). UNDCP (1999) The Drug Nexus in Africa (Vienna, UNDCP). UNODC (2008) Drug Trafficking as a Security Threat in West Africa (Vienna, UNODC). US State Department (2011) INCSR Report (Washington, DC: State Department). Vernaschi M (2010) ‘The Cocaine Coast’, Virginia Quarterly Review (Winter). Vigh, H (2012) ‘Critical States and Cocaine Connections’ in M Utas (ed), African Conflicts and Informal Power, Big Men and Networks (London, Zed Books). Williams, P (2015) ‘Nigerian Criminal Organizations’ in L Paoli (ed), Oxford ­Handbook of Organized Crime (Oxford, Oxford University Press).

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4 Private Military Contractors: A Criminological Approach ADAM WHITE

INTRODUCTION

T

HERE ARE TWO broad starting points in making the case for a ­‘criminology of the military’. One rests upon a macro-level, ‘big ­variable’ line of reasoning and runs as follows. With the increasingly blurred social, political and economic boundaries in today’s globalised world, it is essential to bring together the analytical tools of international relations (with its focus on the international sphere, war and soldiering) and criminology (with its ­emphasis on the domestic sphere, crime and policing) so as to make sense of contemporary warfare and military operations (see Loader and Percy, 2012; McGarry and Walklate, 2015; Introduction to this volume). The other rests upon a localised, ‘small variable’ line of reasoning and takes the following form. First pose empirical questions about a specific aspect of the contemporary military landscape and then draw upon whichever analytical tools are best equipped to answer these questions—if these tools are rooted in international relations and/or criminology, then so be it. Both starting points are worthy enterprises and are, in many respects, mutually reinforcing: the more ‘small variable’ rationales that come to the fore, the more persuasive the argument for the ‘big variable’ picture, and vice versa. This chapter takes as its starting point the ‘small variable’ line of reasoning. It opens with a series of novel questions about private military contractors (PMCs) and proceeds to make the case that in order to address these questions it is instructive to draw upon the analytical tools of criminology in addition to those of international relations and international law. PMCs have become an integral component of contemporary ­neoliberal warfare. During the most intense periods of post-9/11 combat in Iraq and Afghanistan, there were an estimated 54,000 armed soldiers-for-hire working for Coalition forces, carrying out a range of functions such as

82  Adam White protecting convoys, critical infrastructures and key political, military and business figures (Krahmann, 2012: 344). As many of the same Western allies gear up to fight the growing threat of the Islamic State in Iraq and the Levant, so the number of PMCs is once again set to expand (Strobel and Stewart, 2014; Department of Defense, 2016). It is no understatement to claim that PMCs are radically shaking up long-standing state-centric approaches to the theory and practice of war. For this reason, they have over the past couple of decades received ever more academic attention, primarily within the disciplines of international relations and international law, where scholars have raised a series of important questions about the role and ­status of PMCs in hostile environments. Who do they work for? Why is there a demand for their labour? What are the strategic, political and moral implications of deploying them in the theatre of war? (Key contributions include: Avant, 2005; Percy, 2007; Singer, 2008; Krahmann, 2010; Pattinson, 2014; McFate, 2015.) By contrast, this chapter is concerned with a different set of questions, which focus less upon battlefield dynamics and more upon the longer-term consequences of war fighting upon PMCs themselves and the societies in which they live. Where do PMCs go when they leave this dangerous line of work? How does their past employment impact upon their future life course? Do they pose any risks? These questions have for the most part been overlooked within international relations and international law, mainly because the ‘international’ orientation of these disciplines means they are not well calibrated towards tracing the pathways of PMCs beyond the hostile environment. This results in a dilemma. If we cannot turn to these touchstone disciplines, where do we find the appropriate analytical tools for answering this type of question? One answer is criminology. This chapter illustrates how different areas of criminological research can be used to lay valuable groundwork when addressing these questions, either by building upon the work already undertaken in international relations and international law or by mapping out entirely new lines of enquiry where no extant knowledge exists. Specifically, the following section expands upon the ‘where do they go’ question using the criminology literature on ‘security governance’; the subsequent section explores the ‘impact of their past’ q ­ uestion using the criminology literature on ‘labelling theory’; and the penultimate section examines the ‘risk to society’ question using the criminology literature on ‘veteranality’. Of course, these literatures in no way offer complete solutions to these complex questions. Indeed, they probably throw up more questions than they answer. But they do give rise to new insights and, as the final section illustrates, when taken together they demonstrate the huge potential of pursuing criminological approaches to the military.

Private Military Contractors: A Criminological Approach 83 WHERE DO THEY GO?

The post-9/11 conflicts in the Middle East witnessed the emergence of the largest private military force in modern history. It is thus perhaps rather surprising that, as these conflicts have simmered down over recent years, quite so little attention has been given to the question of where all the contractors have gone. In all likelihood, the reason for this neglect is not solely down to the ‘international’ orientation of scholars working in the disciplines of international relations and international law, but also because it is an extremely difficult question to answer, far more so than it is with soldiers. In most instances, soldiers either return to base or leave the military through resettlement programmes, which keep track of their employment pathways for a period of time. For PMCs there is no such official record of their employment pathways. In labour market terms, they are simply subcontractors leaving one commercial employer and searching for work elsewhere, much the same as subcontractors in the construction or cosmetics industries. To date, there has been just one systematic study of PMC employment patterns and—in the absence of any official records—it relied upon data extracted from the professional networking website LinkedIn (White, 2017). While there are limitations to this approach, the study does nevertheless represent a valuable first step towards answering the ‘where do they go’ question. It discovered, for instance, that of those PMCs who left the hostile environment, more than half went on to find work in the domestic private security sector, transferring their skillsets relating to the mobile and static protection of persons and property to a more peaceful civil society context (White, 2017). This suggests that an important line of enquiry in addressing the ‘where do they go’ question is understanding the relationship between the private military and private security labour markets. While the extant international relations literature deals with the former to great effect, it has so far passed over the latter due to its designation beyond the battlefield. Where the private security labour market has been investigated in substantial detail, however, is in the ‘security governance’ literature which has taken shape within criminology in recent years. Against this backdrop, the remainder of this section sets up a dialogue between these literatures, with an emphasis upon the political-economic conditions which have given rise to these labour markets, for it is commonly reasoned that both have emerged in response to a reduction in the frontline capacity of the state and the rise of neoliberal ideology. Most international relations scholars agree that the diminished frontline capacity of the state to address conflict beyond its borders is directly linked to the mass demobilisation which followed the end of the Cold War. Impatient to realise the much anticipated ‘peace dividend’, leaders throughout the Western hemisphere quickly initiated extensive military downsizing

84  Adam White programmes amounting to a collective reduction of 7 million soldiers (Singer, 2008: 53). However, the assumption of a sustained post-Cold War peace settlement proved to be a false one. The thinning out of superpower military presence had the unanticipated effect of releasing many long-­suppressed civil tensions across Eastern Europe, Africa and South Asia, causing a groundswell of small-scale wars (Kaldor, 2012). While many Western states saw it as being in their geopolitical and/or geoeconomic interests to intervene in a number of these wars, they no longer had the immediate frontline capacity to do so. To address these shortfalls, they turned to the many private military companies now being formed by shrewd entrepreneurs seeking to profit from this situation. Between 1950 and 1989 the contractors deployed by these companies were involved in 15 conflicts, while in the period 1990–2000 they were present in no fewer than 80, including those in ­Yugoslavia, Albania, the Gulf region, Sierra Leone, Ethiopia, Congo, Angola, Sudan, Zambia, Papua New Guinea and East Timor (Rosén, 2008: 79–80). The sector then experienced a further period of rapid expansion f­ollowing the post-9/11 interventions in Iraq and Afghanistan, where ­Coalition forces found themselves facing down unexpected resistance from insurgents and once again turned to the market in order to compensate for a shortfall in frontline capacity (Isenberg, 2009). However, there was nothing inevitable about these shifts towards the market. During the ‘roaring nineties’ (Stiglitz, 2004)—a decade of booming Western economies and healthy tax receipts—it would certainly have been possible for wealthy Western states to reinflate their militaries commensurate to the threats they encountered. The reality is that they consciously chose the contractorisation path. Why? The consensus among international relations scholars is that by the 1990s the neoliberal revolution had reached the military sphere. With its emphasis on the virtues of market provision— through the direct sale of state assets, outsourcing of state functions and restructuring of state bureaucracies into quasi-markets—the increasingly hegemonic neoliberal policy paradigm came to definitively shape government responses to deficits in frontline military capacity. ‘In no other era’, Krahmann remarks (2010: 78), ‘has ideology played such an explicit role in shaping government policies with regard to changes in the models of the state and the soldier and with such radical consequences for the provision of national and international security’. It is thus frequently reasoned that the simultaneous decline in the frontline military capacity and rise of neoliberalism created optimal conditions for the emergence of the private military labour market. Importantly, a similar explanation was at the same time (though with longer antecedents) coming to the fore in the security governance literature exploring private security labour markets in non-hostile environments. The narrative is slightly more complex, however. The reduction in the frontline capacity of the state to combat disorder inside its borders not only dates

Private Military Contractors: A Criminological Approach 85 back slightly further to the fiscal crisis of the state during the 1970s—when spending on public services was cut and capped across the Western world— but in a sense was not a reduction at all (Jones and Newburn, 1998: 98–104). For public expenditure on the police actually increased in many Western countries from the 1970s onwards (Braithwaite, 2000). Yet d ­ uring this time private security companies expanded rapidly into the security vacuums left behind by embattled police forces, with the ratios of private security to police officers increasing markedly during this period (White and Gill, 2013). The key to understanding this seemingly contradictory scenario once again relates to the ascendance of neoliberalism. In this narrative, neoliberalism acts as a kind of meta-variable underpinning a number of interrelated trends. To begin with, the demise of numerous collectivist welfare institutions and the entrenchment of neoliberal consumer culture during the 1980s and 1990s not only served to widen the gap between rich and poor, but also caused the poor to aspire to the lifestyle of the rich more than ever before—a combination which fuelled crime rates. It also had the effect of deepening fear of crime—especially among those who had more to lose—to the extent that subjective fear came to outweigh the objective threat of crime (Reiner, 2007). These trends in turn triggered a scenario whereby the demand for security soon outstripped the frontline capacities of even the best-funded police forces, in turn stimulating a demand for private security throughout economy and society. Moreover, the rise of the neoliberal policy paradigm also explains why many states quite literally bought into and perpetuated this scenario by avidly consuming products and services in the sector (White, 2016a: 540). Once again, then, it is commonly observed that the simultaneous (relative) decline in the frontline capacity of the state and the rise of neoliberalism created optimal conditions for the emergence of the private security labour market. What has this brief dialogue between the international relations and criminology literatures accomplished? It was mentioned earlier that one of the keys to answering the ‘where do they go’ question lies in opening up the poorly understood relationship between the private military and ­private security labour markets. By mapping out the structural commonalities which have fuelled the expansion of both labour markets over recent decades, this dialogue has taken a further step towards comprehending why such a large proportion of PMCs have made the transition to the domestic private security sector in their post-battlefield careers—it is (at least in part) because the political-economic conditions have been ripe for doing so. WHAT IS THE IMPACT OF THEIR PAST?

So, upon leaving battlefield employment many PMCs return to civil s­ ociety, often picking up work in the domestic private security sector. But how

86  Adam White does their past employment as a PMC impact upon this new trajectory? This is an important question because past employment almost always plays a central role in shaping future life chances, especially so when the past employment in question is something as dangerous and controversial as private soldiering. The question can be approached from (at least) two angles: first, how having formerly worked as a PMC influences how others perceive them; second, how this employment history has implications for the safety and well-being of PMCs themselves and the societies in which they live. This section is concerned with the former, examining how PMCs as a group are represented at a societal level. In particular, it addresses what is probably the most common (and damaging) representation of PMCs: as law-breaking trigger-happy mercenaries. The subsequent section focuses on the latter. Once again, the international relations and international law literatures make some headway in unravelling this depiction, but only go so far. The problem is that they generally approach these forms of criminality as a kind of box-ticking exercise where PMCs are viewed rather rigidly as being either ‘criminals’ or ‘non-criminals’ depending upon how the legal prohibition under examination is being applied. Not only is this an ­oversimplification—albeit a common one which flows from legal ­positivism—but it also represents another instance where criminology can make a valuable contribution to the study of PMCs. Through the prism of labelling theory, criminologists have long regarded the ascription of the term ‘criminal’ as a socially constructed process where potential acts of deviance resonate to varying degrees with prevailing social norms (see Young, 1998). This proposition adds significant nuance to extant understandings of PMCs as law-breaking trigger-happy mercenaries, for it enables the construction of a narrative where PMCs may be ‘non-criminals’ in the eyes of the law, yet still be regarded as something like ‘criminals’ at a societal level (see also White, 2016b). The legal case against PMCs can be classified into two broad categories: the first relates to their status in hostile environments, the second to their deeds. For present purposes, the most interesting characteristic of these legal arguments is that they appear to have far more resonance at a societal level than they do within any formal criminal justice system. To begin with, the legal case against the status of PMCs rests on the assertion that they are nothing more than a contemporary manifestation of an age-old villain: the mercenary. Mercenaries have traditionally been regarded as immoral for two reasons: ‘because they use force outside legitimate, authoritative control … [and] … because they fight wars for selfish, financial reasons as opposed to fighting for some kind of larger conception of the common good’ (Percy, 2007: 1). In recent decades—and largely in response to the growth of PMCs—the crime of mercenarism has been codified in international law through the United Nations Convention against the

Private Military Contractors: A Criminological Approach 87 ­ ecruitment, Use, Financing and Training of Mercenaries (General Assembly R resolution 44/34), which was drafted in December 1989 and came into force in October 2001. While frequently linked to the activities of PMCs—not least by the United Nations Working Group on the Use of M ­ ercenaries— no individual has ever actually been prosecuted through its provisions (Pattinson, 2014: 145). Yet despite their apparent innocence in the eyes of international law, at a societal level PMCs are still commonly framed as criminal mercenaries. The reason for this lies in the influence of the anti-mercenary norm in modern social relations. The prominence of this norm in modern history not only in part explains why the use of soldiers-for-hire waned during the nineteenth and twentieth centuries and, concomitantly, why military operations came to be dominated by citizen soldiers and/or professional soldiers accountable to their home ‘nation’ states (Percy, 2007), but it also served to definitively shape the normative relationship between citizen and state. Citizens have come to expect the state to defend their national interests through its armies, navies and air forces, and any challenges to this expectation—such as those posed by the rise of PMCs—often cause public outpourings of anxiety and criticism (Migdal, 2001). As Cerny (2015: 3) puts it: ‘the dominant nation-state-based international security paradigm is still hegemonic in the minds not only of politicians and bureaucrats, but also of many interest groups and mass publics’. As such, PMCs can at once be innocent of mercenarism in formal legal terms, yet be regarded as guilty from a societal point of view. The legal case against the deeds of PMCs has met with more success, though again the parallel societal case has more resonance. Probably the most illustrative example is the 2007 Nisour Square massacre, when American PMCs working for Blackwater killed 17 Iraqi civilians and injured at least 20 more during a 15-minute shoot-up in the middle of a busy B ­ agdad intersection (see Scahill, 2007: 3–9). Building a legal case against these deeds has proven difficult (though not impossible). As Snukal and Gilbert (2015) observe: the American PMCs could not be brought to justice in Iraq because Coalition Provisional Authority Order 17 gave PMCs working for Coalition forces immunity from Iraqi courts; they could not be tried by the International Criminal Court as neither the United States nor Iraq consents to its jurisdiction; they could not be prosecuted under the United States Uniform Code of Military Justice because they were private contractors not soldiers; and while families of the Iraqi victims filed civil suits against the PMCs, these were settled out of court by Blackwater with no admission of legal liability. It was only after a US appeals court reinstated charges originally brought forward by federal prosecutors in 2008 under the US Military Extraterritorial Jurisdiction Act but subsequently thrown out due to inadmissible testimony, that in October 2014 a federal court jury finally found

88  Adam White one contractor guilty of murder and three others guilty of manslaughter (Snukal and Gilbert, 2015). Long before the convictions were brought to a conclusion, however, these PMCs—and to an extent the industry they represented—became the focal point of a powerful criminalisation process, which played out at the societal level. As Franke and von Boemcken, (2011: 736) observe, in the wake of the Nisour Square massacre PMCs working in Iraq and Afghanistan were almost universally portrayed as ‘money-grabbing, gun-toting, thrill-seeking Rambo-type mercenaries with little or no moral inhibition or concern for ethical conduct’, regardless of whether or not this bore any relation to facts on the ground. Little attention was paid to the fact that most PMCs were actually going about their business without becoming implicated in human rights violations, and even less was paid to the broader contextual detail that most PMCs are also martialised (or militarised) body-subjects employed precisely because they have been drilled by state militaries to manage certain situations using lethal force (Higate, 2012). To use Percy’s (2007: 218) terminology, during the fallout of the massacre, the anti-mercenary norm became ‘puritanical’ in the sense that it gave rise to ‘unreflexive condemnation without attention to the facts’. It is important to note, however, that labelling processes are rarely ­uncontested—especially loosely grounded ‘puritanical’ ones—and the criminalisation of PMCs is no exception, where counter-labelling strategies have been put forward to neutralise this hegemonic representation. Many p ­ rivate military companies have, for instance, sought to distance themselves from the market-constraining trigger-happy mercenary tag by aligning their operations (on the surface at least) with principles of human rights and democracy (Joachim and Schneiker, 2012: 375)—itself part of a broader corporate strategy to legitimate the sector (White, 2010; 2012). While Krahmann (2013) suggests that opposition to PMCs has accordingly eased somewhat, this is very much a matter of degrees. What has this brief criminological corrective to the international relations and international law literatures achieved? It was suggested earlier that one significant impact of private military work is that once back in civil society an individual may be represented as a law-breaking, trigger-happy mercenary. In setting out the legal frameworks and case history through which this depiction takes shape, the international relations and international law literatures go some way towards unpacking the nature of this problematic legacy. However, these literatures appear to struggle in reconciling the dearth of actual convictions with the strength of the representation. This is where labelling theory plays a role. By approaching the ascription of criminality as a process of social construction, light is shed on how PMCs can remain ‘non-criminals’ in the eyes of the law, yet still be regarded as something like ‘criminals’ at a societal level.

Private Military Contractors: A Criminological Approach 89 WHAT RISKS DO THEY POSE?

So, upon leaving the battlefield and seeking out new opportunities in their home countries, ex-PMCs may find it difficult to leave their employment history behind them. For one thing, they may encounter a negative public discourse which casts them as trigger-happy mercenaries, regardless of whether or not this is a fair reflection of their previous conduct. But what of their health and wellbeing? Do they pose any risks to themselves and/or the societies in which they live? This is another important question to ask because it is widely known that returning soldiers often experience a range of problems during the course of their ‘civilian transition’. In a now familiar tale, this is a question almost entirely overlooked in the international relations and international law literatures, which seem to lose interest in PMCs as soon as they exit-stage-left the theatre of war. Once again, though, criminology can help to address this gap. In particular, the ‘veteranality’ literature—a nascent concept in criminology circles—not only provides a valuable lens through which to tackle questions of health and well-being, but also connects these questions to the aforementioned variable of societal representation. It has become a truism that veterans—soldiers, sailors and airmen returning to civil society following a period of service in the armed forces (on the complexities of defining veterans, see Dandeker et al, 2006)— often experience problems in making the transition between military and non-military ways of life. Having been drilled to respond to dangerous situations with a proactive (and frequently violent) posture, some ­veterans—especially former infantrymen—find it difficult to de-escalate their responses to confrontational situations in a manner commensurate with civilian expectations. As Brown (2008: 18) puts it: ‘Following release from military service many veterans experience a “software” problem— the “software” that was installed while they were in the military often does not work in the civilian landscape’. This disjuncture is compounded by the ‘baggage often carried by many Iraq and Afghanistan veterans when they return home’ such as ‘hyper vigilance, depression, anger and frustration, interpersonal relationship problems, nightmares, recollection of horrific events in combat and alcohol’ (Brown, 2011: 9). Predictably, this combination of factors results in many veterans falling into the criminal justice system, where they are disproportionately represented for violent offending (MacManus et al, 2013). In recent years, criminologists have started to explore veteran criminality as a distinct variant of criminality which has its roots in the criminogenic setting of military service. In Brown’s (2011: 42) words: Ignoring the inherent factors associated with the total military institution, which includes acculturation, training, and military experiences, professionals and

90  Adam White civilians will be unable to develop explanations of veteran criminal behaviour beyond the moral, psychological, and social deficiency explanations of criminal behaviour.

In an effort to bring conceptual clarity to this mode of criminality, ­Murray (2015) has advanced the case for a new field of study: ‘veteranality’. This term is designed to capture the complex processes and identities which lie behind veteran criminality. On one side, they are ‘national defenders’ ­putting their lives on the line in dangerous and violent situations so as to protect their fellow citizens. On the other side, they are ‘national offenders’ who once home suddenly transform into a potential threat to their fellow citizens (Murray, 2015: 62). Both sides must be considered simultaneously, she continues, if we are to comprehend who veteran criminals are, what motivates them, and how civil society ought to deal with them. ‘Veteranality’ is a valuable lens through which to organise and explore the experiences of PMCs as they make the transition to civil society. As with ‘conventional’ veterans, the nature of their homecoming is often directly shaped by their time on the battlefield. To begin with, the ‘software’ ­problem once again comes into the frame, as one American PMC interviewed by soldier-contractor-researcher Shaun Engbrecht (2011: 189) reflects: There are a few, some of whom I know personally, who are simply gone. When I say ‘gone’, I mean that have spent too long in remote corners of the world ­viewing the landscape over the muzzle of a rifle … Some will never return to the United States for they fully comprehend that they are far enough gone that to return home is nothing more than a fast track to jail … They are utterly unable to cope in ‘normal’ society.

Of course, the time spent ‘muzzle-gazing’ more than likely includes a period in military service, though it could certainly be reasoned this only serves to reinforce the similarities between ‘veteranality’ in the public and private sectors. Furthermore, returning PMCs may also carry comparable ‘baggage’ to ‘conventional veterans’, though this is a particularly tricky problem to research, as Engbrecht (2011: 24) notes: The problems of alcoholism, PTSD, domestic abuse, and failed social integration are all ugly byproducts of those fighting a counter-insurgency war. Statistics are only available for the armed forces, however, as PMCs [companies] do not maintain records of personal issues. Mental health concerns are not tabulated by PMCs [companies] as that would entail additional expenses against the profit column.

For a long time, the only available sources for unearthing traces of this problem were the more candid personal accounts written by PMCs over the past decade. In his autobiography, for instance, British contractor Simon Low (2007: 87) reflects on his first night out of Baghdad: ‘Being plunged into such peace and tranquillity only intensified my anxiety, the quiet giving

Private Military Contractors: A Criminological Approach 91 added space for my mind to dwell on recent events and the dark thoughts playing in my head’. Against this backdrop, Low continues, ‘I devised what psychobabblers call a coping strategy, I decided to fuck it all’. While providing valuable windows into the psychological states of some PMCs, such accounts are of course susceptible to artistic licence and lack any kind of objectivity. Fortunately, however, RAND recently conducted a systematic study on the health and well-being of 660 PMCs working in hostile environments, in the process bringing these issues more clearly into light. The study duly discovered that 25 per cent met the criteria for probable PTSD, 18 per cent for depression and 10 per cent for alcohol abuse (which is often associated with such mental health problems) (Dunigan et al, 2013: xv). While there is no evidence that these transition issues resulted in any criminality—such questions were beyond the scope of RAND’s ­investigation—the preconditions identified in the veteranality literature are certainly in place. However, although the homecoming experiences of PMCs and soldiers appear in many respects to run in parallel, there is one significant disjuncture. For the most part, when soldiers return home they are in the first instance greeted as ‘national defenders’, to paraphrase Murray. Tabloid and broadsheet media welcome back ‘our boys’, politicians take every opportunity to pay tribute to ‘our brave soldiers’, and celebrities and charitable ventures frequently call attention to ‘our heroes’ in popular culture. This means that if they fall on hard times and/or enter into the criminal justice system as ‘national offenders’, there are usually a host of well-organised initiatives designed to help them out. The experience of contractors upon returning home is markedly different, however. Given the aforementioned societal prejudices towards mercenarism, they receive none of this celebration. As Baker (2011: 48) remarks: There is no Medal of Honour or Victoria Cross for contractors. Whereas the military has a well-developed system by which to recognise acts of courage, there is no parallel system for private warriors. The simple fact is that actions carried out by contracted combatants which would have earned them medals, citations and other forms of recognition if they were in uniformed service, generally go unreported and unnoticed.

This unsurprisingly has knock-on consequences in the event of PMC injury and/or death. Taussig-Rubbo (2009: 119) writes that, when viewed through the lens of the anti-mercenary norm, ‘Contractor deaths are not sacrifices … contractors are motivated by private gain, not national service. That is, they did not die so that the nation might live, but because they chose a dangerous, well-paid line of employment’. In short, because the ‘national defender’ framing is not present, PMCs receive nothing like the sympathy and aid directed towards soldiers. Any risks they pose to themselves and/or others are therefore much more likely to go unmanaged.

92  Adam White What has this brief criminological analysis of returning PMCs added to this field of research? It was suggested earlier that given the problematic civilian transition experienced by many returning soldiers, it is necessary to question whether returning PMCs pose risks to themselves and/or the societies in which they live. Using ‘veteranality’ as an organising perspective through which to explore the limited empirical material on this matter, it is not only possible to reason that some returning PMCs pose a variety risks to themselves and their home communities, but also that these risks are more likely to go unmanaged due to societal prejudices against their past employment. These insights lead to a more sophisticated picture of the legacies of private military work. They also raise a pertinent policy issue: should the civilian transition of PMCs be managed, and if so how? CONCLUSION

By addressing a series of novel questions about PMCs using different areas of criminological research, the chapter has accomplished two things. First, it has put together a profile which is notably distinct from the standard one found in the international relations and international law literatures. The criminological profile is not one of a private soldier heading to war as one component of the neoliberal war machine, but one of a private ­soldier encountering a variety of personal and societal stumbling blocks upon returning home. So although this analysis has necessarily been rather brief, it has nevertheless added something new to extant knowledge in this field, indicating a range of interesting new lines of enquiry. Second, it has also made a localised, ‘small variable’ case for a criminology of the military. That is, it has demonstrated the value of drawing upon criminological research when addressing novel empirical questions about the nature of the contemporary military landscape. Furthermore, of course, in a small but meaningful way this enterprise has also helped to strengthen the broader movement towards pursuing a macro-level, ‘big variable’ criminology of the military as a discrete school of thought in and of itself. REFERENCES Avant, D (2005) The Market for Force: The Consequences of Privatizing Security (Cambridge, Cambridge University Press). Baker, D-P (2011) Just Warriors, Inc.: The Ethics of Privatized Force (London, Continuum). Braithwaite, J (2000) ‘The New Regulatory State and the Transformation of Criminology’ in D Garland and R Sparks (eds), Criminology and Social Theory (Oxford, Oxford University Press).

Private Military Contractors: A Criminological Approach 93 Brown, W (2008) ‘Another Emerging Storm: Iraq and Afghanistan Veterans with PTSD in the Criminal Justice System’ 5(2) Justice Policy Journal 1–37. Brown, W (2011) ‘From War Zones to Jail: Veteran Reintegration Problems’ 8(1) Justice Policy Journal 1–48. Cerny, P (2015) ‘From Warriors to Police? The Civilianisation of Security in a Globalising World’ 52(4) International Politics 389–407. Dandeker, C, Wessely, S, Iversen, A and Ross, J (2006) ‘What’s in a Name? Defining and Caring for “Veterans” The United Kingdom in International Perspective’ 32(2) Armed Forces & Society 161–77. Department of Defense (2016) Contractor Support of U.S. Operations in the USCENTCOM Area of Responsibility (Department of Defense, Washington DC). Dunigan, M, Farmer, C, Burns, R, Hawks, A and Messan Setodji, C (2013) Out of the Shadows: The Health and Well-Being of Private Contractors Working in Conflict Environments (Washington DC, RAND). Engbrecht, S (2011) America’s Covert Warriors: Inside the World of Private Military Contractors (Virginia, Potomac Books). Franke, V and von Boemcken, M (2011) ‘Guns for Hire: Motivations and Attitudes of Private Security Contractors’ 37(4) Armed Forces & Society 725–42. Higate, P (2012) ‘The Private Militarized and Security Contractor as Geocorporeal Actor’ 6(4) International Political Sociology 355–72. Isenberg, D (2009) Shadow Force: Private Security Contractors in Iraq (London, Praeger). Joachim, J and Schneiker, A (2012) ‘New Humanitarians? Frame Appropriation through Private Military and Security Companies’ 40(2) Millennium 365–88. Jones, T and Newburn, T (1998) Private Security and Public Policing (Oxford, Clarendon Press). Kaldor, M (2012) New and Old Wars: Organized Violence in a Global Era (Cambridge, Polity). Krahmann, E (2010) States, Citizens and the Privatisation of Security (Cambridge, Cambridge University Press). Krahmann, E (2012) ‘From “Mercenaries” to “Private Security Contractors”: The (Re)construction of Armed Security Providers in International Legal Discourses’ 40(2) Millennium 343–63. Krahmann, E (2013) ‘The United States, PMSCs and the State Monopoly on Violence: Leading the Way Towards Norm Change’ 44(1) Security Dialogue 53–71. Loader, I and Percy, S (2012) ‘Bringing the “Outside” In and the “Inside” Out: Crossing the Criminology/IR Divide’ 13(4) Global Crime 213–18. Low, S (2007) The Boys From Baghdad (Edinburgh, Mainstream Publishing). MacManus, D, Kimberlie, D, Jones, M, Rona, R, Greenberg, N, Hull, L, Fahy, T, Wessely, S and Fear, N (2013) ‘Violent Offending by UK Military Personnel Deployed to Iraq and Afghanistan: A Linkage Cohort Study’ 381 The Lancet 907–917. McFate, S (2015) The Modern Mercenary (Oxford, Oxford University Press). McGarry, R and Walklate, S (2015) ‘Introduction: Placing War Within Criminology’ in S Walklate and R McGarry (eds), Criminology and War: Transgressing the Borders (Abingdon, Routledge) 1–18.

94  Adam White Migdal, J (2001) State in Society: Studying How States and Societies Transform and Constitute One Another (Cambridge, Cambridge University Press). Murray, E (2015) ‘Criminology and War: Can Violent Veterans See Blurred Lines Clearly?’ in S Walklate and R McGarry (eds), Criminology and War: Transgressing the Borders (Abingdon, Routledge) 55–74. Pattinson, J (2014) The Morality of Private War (Oxford, Oxford University Press). Percy, S (2007) Mercenaries (Oxford, Oxford University Press). Reiner, R (2007) Law and Order: An Honest Citizen’s Guide to Crime and Control (Cambridge, Polity Press). Rosén, F (2008) ‘Commercial Security: Conditions of Growth’ 39(1) Security Dialogue 77–97. Scahill, J (2007) Blackwater: The Rise of the World’s Most Powerful Mercenary Army (London, Serpent’s Tail). Singer, P (2008) Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca, Cornell University Press). Snukal, K and Gilbert, E (2015) ‘War, Law, Jurisdiction, and Juridical Othering: Private Military Security Contractors and the Nisour Square Massacre’, Environment and Planning D, doi: 10.1177/0263775815598077. Stiglitz, J (2004) The Roaring Nineties (London, Penguin). Strobel, W and Stewart, P (2014) ‘As US troops return to Iraq, more private contractors follow’, Reuters (24 December). Taussig-Rubbo, M (2009) ‘Outsourcing Sacrifice: The Labor of Private Military Contractors’ 21 Yale Journal of Law and the Humanities 101–64. White, A (2010) The Politics of Private Security: Regulation, Reform and Re-Legitimation (Basingstoke, Palgrave Macmillan). White, A (2012) ‘The New Political Economy of Private Security’ 16(1) Theoretical Criminology 85–101. White, A (2016a) ‘The Market for Global Policing’ in B Bradford, B Jauregui, I Loader and J Steinberg (eds), The SAGE Handbook of Global Policing (London, Sage) 535–51. White, A (2016b) ‘Private Military Contractors as Criminals/Victims’ in R McGarry and S Walklate (eds), Palgrave Handbook on Criminology and War (London, Palgrave Macmillan) 191–209. White (2017) ‘Beyond Iraq: The Socioeconomic Trajectories of Private Military Veterans’, Armed Forces & Society, doi: 10.1177/0095327X17711898. White, A and Gill, M (2013) ‘The Transformation of Policing: From Ratios to Rationalities’ 53(1) British Journal of Criminology 74–93. Young, J (1998) ‘Writing on the Cusp of Change: A New Criminology for an Age of Late Modernity’ in P Walton and J Young (eds), The New Criminology Revisited (Basingstoke, Palgrave Macmillan) 259–96.

5 Soldiers as Crime Fighters: The British Army in Post-War Bosnia and Kosovo CORNELIUS FRIESENDORF*

INTRODUCTION

I

T IS A commonplace that the distinction between external and i­nternal security, and war and crime, has blurred since the end of the Cold War. It is also a commonplace that this has implications for security forces. Many authors have thus detected a convergence of military and police roles (for an overview and references, see Easton et al, 2010). Whether this convergence is beneficial is controversial however. Many have criticised the militarisation of police forces (Kraska, 2007). Equally controversial is the question as to whether soldiers should contribute to law enforcement. ­Soldiers are generally not trained and equipped for coping with criminalised activities and there is a risk that they use disproportionate force and fail to secure evidence needed to make a case in court. At the same time, the military has capabilities that police lack, such as when facing opponents using high-end violence. The debate on the military role in crime fighting may be heated but it takes place in a knowledge void. Little is known empirically about ­military practices in this field, with the exception of popular topics such as the US ‘war on drugs’ (Friesendorf, 2007). Moreover, few attempts have been made yet to explain specific military crime-fighting practices. This is not least because students of international relations and security studies ­writing about the military are, generally, not interested in crime. Furthermore, despite considerable concern about military encroachment on policing turf, few attempts have been made to study the impact of military crime-fighting practices. *  For comments on an earlier version of this chapter I would like to thank Andrew ­Goldsmith and an anonymous reviewer.

96  Cornelius Friesendorf This chapter contributes to a better understanding of these three underexplored aspects. It helps to fill empirical gaps by describing one case (and within-cases) of military counter-crime efforts: the role of the British Army in post-war Bosnia-Herzegovina (in the following referred to as Bosnia) and post-war Kosovo. The focus is on efforts against two (overlapping) forms of crime: inter-ethnic crime and economically motivated crime. The main point here is that military practices are idiosyncratic; they differ across national military forces and even among organisational units. References to alternative practices by other troop-contributing nations in the same ­theatres illustrate this point. The chapter, moreover, offers an explanation of British Army practices. The main point here is that explanations of military counter-crime efforts are most convincing when they are eclectic, ie when they combine a variety of theoretical approaches (Sil and Katzenstein, 2010; Andreas and ­Nadelmann, 2006: 7–13). Particularly relevant are a functionalist problemsolving account stressing conditions on the ground; a constructivist account stressing the power of international norms; mid-level theories on the use of force by democracies; and an organisational account stressing practices ­embedded in organisational experience. Last, the chapter discusses the consequences of British Army practices on the local populations in Bosnia and Kosovo. The main point here is that the involvement of soldiers in law enforcement is not necessarily negative. The British Army helped to protect people in the Balkans from violence and in many cases fared better in this regard than troops from other nations. ­However, there were also problems, in particular with regard to the sustainability of counter-crime efforts. Also, the presence of British Army ­soldiers was no panacea for the prevention of crime, which continued after the respective wars. This text does not aim at presenting a comprehensive picture of British Army practices, their causes and their effects. A lack of data and information would stymie attempts to pursue detailed process tracing, and the complex set of factors driving military practices would stymy efforts to analyse ‘variables’ and posit deterministic relationships between presumed causes and effects. For example, the activities of special military forces, which play an important role in crime fighting, are shrouded in secrecy. So is the political-military decision-making process triggering special forces operations. Furthermore, personalities matter in crime fighting, which means that organisational behaviour cannot be deduced from external constraints, international norms, political preferences or organisational experience. With regard to policy impact, a lack of data and information, and the presence of numerous context factors influencing outcomes, challenge the establishment of causal relationships between military practices and their effects on the ground. For instance, in multinational operations it is often difficult to establish which national contingent and unit conducted which

Soldiers as Crime Fighters 97 operation. Also, ascertaining whether impact is positive or negative is tricky as it involves normative claims. Some groups may welcome a specific effect whereas others may regard it as undermining their security; interventions into complex systems can have what Just War theorists call ‘double effects’ (Walzer, 2006: 151–59). This chapter takes into account these empirical, methodological and ­normative challenges. It illustrates how a military force fought crime by studying specific events and episodes, in particular arrest operations, patrolling, and crowd and riot control; it assesses the plausibility of different explanations for these practices; and it offers inroads for assessing the impact of militarised crime fighting in war-torn countries. Sources include official documents, secondary literature, media reports and personal interviews conducted in Bosnia and Kosovo in 2007 and 2008. The first part describes British Army practices in Bosnia and Kosovo. The second discusses explanations. The third looks at policy impact. The ­conclusion pleads for further research on these three aspects. BRITISH ARMY PRACTICES IN BOSNIA AND KOSOVO

In late 1995 the Dayton peace accords ended the nearly four-year war in Bosnia, and NATO troops moved into the destroyed country (or changed their UN hats for NATO helmets). In June 1999 the Kosovo war ended and NATO troops entered the destroyed Serbian province. In both cases, soldiers not only had to implement military aspects of the respective peace agreements, but also contain crime. This section examines British Army efforts against two types of crime: inter-ethnic crime and economically motivated, organised crime. These types overlapped considerably. After all, many of those who had attacked members of other ethnic groups during the war or who continued to so after the war had not only political motives, but an economic agenda as well; they wanted to make profit, as is typical of what Mary Kaldor (2005) has labelled ‘new wars’. The British Army fielded the second-largest ­military contingents in Bosnia and Kosovo in the immediate post-war years, and it was a more proactive crime fighter than contingents from other ­ troop-contributing nations. Bosnia To help with and supervise the implementation of the Dayton agreement, NATO deployed, in January 1996, the Implementation Force (IFOR), which was given a one-year mandate. IFOR was succeeded by the Stabilisation Force (SFOR). IFOR and the first rotations of SFOR focused on the ­military

98  Cornelius Friesendorf aspects of Dayton, such as the cantonment of heavy weapons and the ­separation of combatants in the two entities, ie the Federation dominated by Bosniaks (Bosnian Muslims) and Bosnian Croats and the ­Republika Srpska dominated by Bosnian Serbs. Yet while NATO troops compelled the former belligerents to stop fighting, they were less successful in preventing and responding to crime. One of the main challenges was to arrest suspected war criminals. The top suspects were indicted by the International Criminal Tribunal for the Former ­Yugoslavia (ICTY). But who should make the arrests? A United Nations police force, the International Police Task Force (IPTF), did not have executive law enforcement powers and would have been no match against the battle-hardened Bosnian former combatants anyway. Bosnian security forces were part of the problem, being divided along ethnic lines and protecting those regarded by many as war heroes. Only NATO troops had the capability to make arrests. However, the one international actor that dominated politically and ­militarily in Bosnia, the United States, did not want to arrest anybody because of the fear of own casualties (other motives played a role as well, such as the fear of provoking civil unrest and armed resistance to NATO troops; see International Crisis Group, 2000). Indicted war criminals, including the top suspect Bosnian Serbs Radko Mladić and Radovan Karadžić, roamed the country freely, unhindered by NATO, which at its height numbered around 60,000 troops and had heavy weapons at its disposal. Karadžić (and other war criminals such as Momčilo Krajišnik) were based in the town of Pale near Sarajevo and controlled most of the Bosnian Serb police (as well as Bosnian Serb media) even after 1996, when the Banja Luka-based Biljana Plavšić (Karadžić’s war-time ally) was elected president of Republika Srpska (see Baumann et al, 2012: 150). It was only in 1997 that SFOR decided to curtail the power of the unofficial leaders in Pale, and spoilers of peace more generally. A crucial step was taken on 10 July 1997. That day, NATO for the first time arrested suspected war criminals. British Army special forces, of the Special Air Service (SAS), targeted two suspects as part of Operation Tango in the town of Prijedor, a Bosnian Serb stronghold. Simo Drljača and Milan Kovacević were, under a sealed indictment of the ICTY, accused of ‘ethnic cleansing’ during the war and of having run concentration camps where especially Bosnian Muslims were tortured and murdered (Neuffer, 2001: chapter 2). Drljača resisted arrest and, after shooting a British soldier in the leg, was shot dead by the SAS men. Kovacević was flown to the ICTY in The Hague where he received a long prison sentence. While the US military had been wavering (only providing intelligence assets during Operation Tango), the British Army took the initiative. It continued to do so: over the years, the British Army made many more arrests. Eventually, as of 1998, other national contingents made arrests, too,

Soldiers as Crime Fighters 99 including US soldiers, with the Pentagon judging the risks acceptable and with the top brass no longer able to resist public and political pressure to contribute more actively to peace in Bosnia. But of all national contingents, the British military made the largest number of arrests: out of the 28 arrest operations that had been conducted by mid-2002, the British Army had led 15 (Gow, 2006: 64, footnote 21). The British Army was also proactive in another field: the fight against organised crime. The Bosnian war (1992–95) had been a criminalised war, in which many combatants had sought profit rather than military victory (Andreas, 2008). Crimes included the smuggling and trafficking of people as well as goods such as cigarettes, fuel, weapons and timber. Especially timber was one of the few profitable resources of Bosnia, but much of the logging took place illegally. In 2004, the EUFOR Althea Mission, under the command of the E ­ uropean Union, replaced the SFOR mission of NATO. The first commander of EUFOR was a British general, David Leakey. He interpreted his guidance as comprising the fight against organised crime, arguing that organised crime hindered democratic governance and economic reconstruction and also funded suspected war criminals. In interpreting his mandate broadly, Leakey received support from Paddy Ashdown, the High Representative in Bosnia and a former British Royal Marine. Under Leakey’s command, EUFOR troops, especially those of the ­British Army, set up checkpoints and roamed the forests of Bosnia and border areas, arresting those engaging in illegal logging as well as other illicit activities (Friesendorf, 2010: 57–62). Other national contingents were reluctant to take on such roles. German military officers, interviewed in winter 2007/2008, expressed concerns that the use of force against criminals would lead to a violent backlash against EU forces.1 A Spanish officer, trained in tank warfare, said he was unfamiliar with the various civilian tasks that he and his soldiers were supposed to carry out.2 Kosovo In Kosovo, too, the British Army was more proactive than contingents from other troop-contributing countries. In June 1999 Yugoslav President Slobodan Milosević agreed to a peace deal with NATO, after nearly three month of NATO aerial bombing in response to the persecution of Kosovo Albanians (Kosovars) by Serbian-dominated Yugoslav forces. For ensuring

1  2 

Interview, Eastern Bosnia. Interview, Herzegovina, summer 2008.

100  Cornelius Friesendorf that the peace would hold, NATO deployed the Kosovo Force (KFOR), a robust peace-enforcement mission comprising, at its height, around 50,000 soldiers from over three dozen countries. KFOR was to work alongside a panoply of international civilian institutions in governing this ‘international protectorate’. As in Bosnia, while the implementation of the military aspects of the peace agreement went relatively smoothly, the main problems lay in other areas. A central problem was the continuation of inter-ethnic violence, only this time committed, in most cases, by the majority Kosovar population against the minority Serb population. Numerous cases of discrimination, theft, arson, assaults and murder showed that the tables had turned. International civilian institutions such as the United Nations Interim Administration Mission in Kosovo (UNMIK) Police were too weak to protect minorities: as in Bosnia, they arrived late, practised and advocated a ­bewildering array of policing approaches, and although endowed with an executive mandate, lacked the situational awareness needed to fight inter-ethnic and economic crimes. Only KFOR had the means to enforce a modicum of stability. However, KFOR’s stance varied across national contingents, with troopcontributing countries imposing numerous national caveats that hampered the ability of the commander of KFOR to flexibly respond to emergencies such as riots. Of all national contingents, the British Army proved the most willing and able to protect minorities. Right after KFOR had moved into the destroyed province, British paratroopers patrolled the streets of the capital Pristina. In the divided northern town of Mitrovica, where French troops were unable to contain riots between Serbs and Kosovars, British Army troops rushed in on several occasions. Their actions showed determination but at the same time British soldiers avoided the use of force as much as possible, in some cases only linking arms to push protesters back (Pringle, 2000a). In working closely among the population, several British soldiers were wounded, yet the British Army kept on patrolling and engaging in crowd and riot control (Zaalberg, 2006: 332–33). Its stance differed markedly from that of other national contingents. Senior French commanders, for instance, often failed to take adequate measures for fear of own casualties, as one former commander of KFOR remembers bitterly in his memoirs (Reinhardt, 2002: 499). In one instance in June 1999, one British lance corporal and his unit stopped 200 Kosovars wanting to loot Serbian homes in a town that happened to be inside the French sector; the corporal took his unit more than two miles inside that sector (Evans, 1999a). The operational style of the British Army differed markedly from that of militaries of other troop-contributing nations, such as the US Army. In comparison to US forces, which were dubbed ‘ninja turtles’ because of their habit of wearing helmets and body armour at all times, the British Army’s force protection policies appeared relaxed (Caniglia, 2001). This made it

Soldiers as Crime Fighters 101 easier for British soldiers to interact with local citizens, which in turn helped them to quickly prevent and respond to violence. The proactive stance of the British Army also showed in March 2004. That month saw province-wide orchestrated riots by mobs of ethnic ­Albanians against Serbs (and other minorities). The riots cost the lives of 19 people, injured nearly 900 (including UNMIK police officers and KFOR soldiers), led to the displacement of 4,500 people, and damaged or destroyed 30 ­Serbian Orthodox churches and two monasteries as well as over 700 houses belonging to Serbs and other minorities (International Crisis Group, 2004: i). KFOR failed to contain the riots, although some national contingents fared better than others. German troops in the south-west, for instance, withdrew into their barracks as Serbian religious sites and neighbourhoods were torched, and even distressed calls for help by UNMIK police officers besieged by mobs did not lead German commanders to order a crack-down (Der Spiegel, 2004). At the time of the riots, most British troops had been withdrawn from Kosovo. Yet they were quickly flown in, as part of a NATO rapid reaction force, and immediately began to patrol Kosovo streets in order to prevent the continuation of violence (BBC, 2004). The British Army was also proactive against organised crime. As had been the case in Bosnia, the war in Kosovo had a criminal dimension. For instance, the Kosovo Liberation Army (KLA) reportedly benefited from drug trafficking (Boyes and Wright, 1999). Crime continued into the fragile post-war ‘peace’ after June 1999, and all international actors were hardpressed to stop illicit economic activities (Friesendorf, 2011). Kosovo’s borders/boundary lines were one of the hot-spots. Organised crime groups (and from 1999–2001 also ethnic Albanian insurgents in Macedonia and the Preševo area of Serbia) smuggled and trafficked weapons, drugs and other goods, as well as people, into and out of Kosovo, and fighters moved back and forth. KFOR struggled to seal the boundaries/borders against the illicit trade since troops were proficient in fighting war but not crime. US troops had a particularly hard time because of stringent force protection rules: (regular) US troops operated in large units and travelled in armoured vehicles, making it easy for smugglers to avoid them. The ­British Army operated differently. For instance, in 2001, British special forces lent the Americans their hands for border control: operating in small units and digging themselves into the terrain, the British soldiers seized smuggled weapons (Friesendorf, 2010: 101). Among other accomplishments, ­British troops made it more difficult for ethnic Albanian rebels to cross from ­Kosovo into (the rest of) Serbia and to smuggle goods across the boundary line in support of the ethnic Albanian insurgency in the Preševo area. In doing so, the British soldiers helped protect Serbs threatened by the rebels, and they reduced the risk of Serbian troops moving back into Kosovo in order to stem the inflow of ethnic Albanian fighters and their weapons (Di Giovanni, 2000).

102  Cornelius Friesendorf Several years later, at the time of Kosovo’s unilateral declaration of independence from Serbia in February 2008, British soldiers (together with intelligence agents), although reduced to a small number of troops, continued to put pressure on suspected criminals. British officers operated, for instance, an Intelligence, Surveillance and Reconnaissance (ISR) unit that observed individuals whom NATO had put on a target list for crimes including interethnic crime, terrorism and organised crime.3 EXPLAINING BRITISH ARMY PRACTICES

Why was the British Army more proactive in the fight against crime in ­Bosnia and Kosovo than soldiers from other troop-contributing countries? Several potential explanations exist: functionalist and constructivist theories, midlevel approaches on the use of force by democracies, and organisational approaches. However, any of these explanations alone is insufficient; only in combination can they explain military practices. According to a functionalist, problem-solving approach, military practices reflect the ‘objective’ security situation on the ground. This explanation is plausible, to some extent. War criminals in Bosnia stood in the way of justice and thus sustainable peace. Commercial crimes in Bosnia, such as illegal logging, undermined the rule of law and deprived the state of badly needed tax revenues. Similarly, in Kosovo the continuation of inter-ethnic violence and crimes such as weapons smuggling undermined the prospect of conflict resolution. From this perspective, the British Army mitigated realworld problems. However, this perspective has shortcomings. A variety of practices can be considered rational. The strict force protection of the United States, for instance, sent a signal to former combatants that any resumption of hostilities would be swiftly punished. Also, the (unofficial) US policy of stalling on the arrest of suspected war criminals in the immediate post-Dayton period may have been necessary to avoid violence against NATO troops by supporters of wanted persons, which could have degenerated into war and ended the peace process (for a defence of the US approach, see Lorenz, 1997). Efforts against economic crimes, too, reveal the indeterminacy of the most ‘rational’ course of action. Illicit activities provided income to many people who in destroyed economies had few licit options. Moreover, the framing of activities such as illegal logging as ‘organised crime’ was problematic because it implied criminal hierarchies even though many of the protagonists were ordinary citizens acting independently (Friesendorf and Penksa, 2008). 3  Interviews with KFOR officers, Novo Selo (Northern Kosovo), October 2008, and with EULEX official, Pristina, 29 October 2008. See also Friesendorf, 2010: 110–11.

Soldiers as Crime Fighters 103 A constructivist account of international intervention would stress the power of international norms, including human rights norms. From this perspective one would expect international troops to comply with protection norms. Indeed, (mediatised) public pressure put governments and militaries of troop-contributing states under pressure to answer calls for justice for atrocities committed in the past and to protect vulnerable populations from more violence. International norms are also reflected in mandates by international organisations that govern the activities of foreign soldiers in mission areas. However, as shown in the previous section, even troops from liberal democracies’ militaries, which are more prone to comply with human rights than are those of autocracies, acted differently, as illustrated by different operational styles of the US military and the British military. International non-governmental organisations severely criticised NATO for failing to arrest suspected war criminals in Bosnia or to stop inter-ethnic violence in Kosovo (see, for example, International Crisis Group, 2004; Human Rights Watch, 2004). One enabling factor for divergent practices is the lack of specificity of protection norms, especially those prescribing positive protection. International law has little to say, for instance, about how much risk soldiers have to accept for themselves in order to protect vulnerable populations from the violence of rioters or militias (see, for instance, Barber, 2010). Moreover, international mandates were rather vague in Bosnia and Kosovo. For instance, KFOR troops in 1999 were faced with a confusing mix of UN regulations, KFOR rules of engagement, international and European human rights conventions, old Yugoslav laws, and national laws and regulations (Perito, 2004: 207–08). They generally applied the latter, as the domestic legal frame was the one they were most familiar with. One might also explain British Army practices by applying mid-level theories that examine the use of force by democracies. Advanced studies on the democratic peace show that democracies differ in the use of military force (Geis et al, 2013). Particularly useful for understanding the implementing of governmental policy by military forces are writings that distinguish between different types of democracies, such as studies on institutional structures that show how different structural features of democratic polities affect ­military practices such as the number and types of national caveats (­Auerswald and Saideman, 2014). Differences between mid-level theories notwithstanding, these theories give priority to politicians instead of ­military commanders. This perspective, while offering insights, glosses over the nuances of ­international interventions.4

4  Studies on principal-agent theory acknowledge that military forces have (varying levels of) discretion. See, among others, Avant, 1994.

104  Cornelius Friesendorf Politicians did influence military practices in Bosnia. For example, early on during the NATO mission in Bosnia, British politicians reportedly did not authorise the arrest of one of the top war crimes suspects, Bosnian Serb leader Radovan Karadžić (B92, 2008). As of 1997, Tony Blair’s Labour ­government was more willing to take risks and order the arrest of suspected war criminals than had been the case with the Conservative government of John Major, who stepped down as Prime Minister in May 1997. That same year, President Clinton appointed Madeleine Albright as Secretary of State, who was more hawkish than her predecessor (Neuffer, 2001: 304). However, a focus on politicians and governmental politics does not tell the whole story. Already in early 1997, before Tony Blair’s electoral ­victory, British troops, together with French, German and Dutch troops, were training in Germany in preparation for the arrest of suspects (Neuffer, 2001: 305).5 According to a newspaper report, a British Army unit, with backup from the SAS, was only minutes away from arresting Drljača and Kovacević in March 1997, ie before Labour came to power (Binyon, 1997). The arrest was called off, according to the newspaper, due to insecure communications and because in the run-up to the operation, the government of John Major had been reluctant to authorise arrests and risk a shoot-out with armed Serb police and bodyguards (Binyon, 1997). This reluctance was despite the fact that by spring 1997 the US government had become more assertive and wanted to step up pressure on suspected war criminals. Also, the British SFOR commander, Lieutenant-General Roddy Cordy-Simpson, had supported the arrest of Drljača and Kovacević in March 1997 (Binyon, 1997). The election victory of Tony Blair gave the British military the political support they needed for making arrests. After Tony Blair was elected, he and US President Clinton agreed on a new arrest attempt at a NATO summit, and in July 1997 the SAS went into action (Binyon, 1997). The aborted operation in March reveals that the British Army, though dependent on political support, did not oppose arrests as was the case with the Pentagon. The exact decision-making process remains unknown but it is likely that the British Army regarded the presence of suspected war criminals who continued to undermine peace even after the war as a liability, and therefore pushed for making arrests. This readiness to carry out risky commando raids also reflected the role of special forces as a key component of British military operations, in contrast to the US military, which before the ‘war on terror’ had traditionally marginalised special forces (Kaplan, 2013).

5 Greece and Russia, going through NATO channels, put pressure on NATO not to use IFOR or SFOR troops for arresting suspect war criminals. Therefore, NATO member states willing to make arrests decided to use national troops outside the NATO chain of command in Bosnia for arrests.

Soldiers as Crime Fighters 105 Responses to the March 2004 riots in Kosovo, too, underline the shortcomings of theories privileging politicians. When British soldiers were rushed into the province to contain the riots, British politicians debating the deployment in the House of Commons never discussed operational and tactical details (House of Commons, 2004). This was in line with the principle of mission command, which leaves the implementation of military strategy to the experts in violence (van Creveld, 1982). It was the British Army itself that decided on the means for containing the crisis. If political preferences and politics cannot fully explain military practices when the stakes are high, the explanatory power of theories giving primacy to politicians is even less impressive when the stakes are low, ie when there is little risk of own casualties and concomitant domestic political backlash (see the literature on US casualty aversion, eg Gelpi et al, 2009). The stakes were low, for instance, in Bosnia under EUFOR command. There is no evidence that British General David Leakey was under pressure from politicians (or civilian officials within the British Ministry of Defence) to interpret the EU mandate in specific ways and to carry out specific tasks. The proactive stance of the British Army during that period was due to his own reading of the EU mandate and the situation in Bosnia. A last explanatory approach focuses on the military itself. Organisational theorists stress that organisations have autonomy over policy implementation and that organisational biases and interests inform how organisations implement policy (see, for instance, Powell and DiMaggio, 1991). One of the sources of organisational practice is organisational experience. Organisations draw on previous experience especially in novel situations for which no blueprints exist. For instance, organisations tend to act in a routinelike fashion even when situations demand a different approach. Routines, defined as dispositions to solve problems in particular ways in response to cues, thus stabilise behaviour and lead to path-dependent behaviour (Becker, 2010). An organisational approach is a crucial complement to the explanations outlined above. In Bosnia and Kosovo, the British Army drew upon previous organisational experience. The Troubles in Northern Ireland were the most crucial source of experience. The SAS had significant experience in counter-terrorism and routines for carrying out commando raids such as the one of July 1997 in Bosnia. Moreover, the British Army as a whole had much experience in lending military assistance to civilian powers and could draw on that experience in their operations against economically motivated crime in the Balkans. Countering inter-community violence was also within its remit: street-level patrols and crowd and riot control had been standard practices in Northern Ireland since the late 1960s, when British troops entered the province. British Army practices in the Balkans must be seen in the light of these previous experiences in Northern Ireland. General Sir Michael Jackson,

106  Cornelius Friesendorf the former Chief of the General Staff (2003–06), writes in his autobiography that the British military was especially qualified for peace support operations ‘for it had been pursuing what was fundamentally a peace support operation in Northern Ireland for the past quarter of a century’ (­Jackson, 2007: 275). One British Army officer said that the British Army in Bosnia applied lessons from Northern Ireland in terms of training, doctrine and capabilities.6 Especially on the tactical level, British troops reflexively replicated practices they had learned in Northern Ireland as well as during their pre-deployment training preparing them for Northern Ireland. Some of the SAS soldiers participating in the arrest of Drljača and Kovacević in 1997 had been involved in operations against the IRA (Lyck, 2008: 115–16). In Kosovo, when British troops patrolled the streets of Pristina in 1999 in small units, they moved in the so-called Brick formation, whereby four soldiers would watch in all directions (McGrory, 1999). A British company commander said such patrolling enabled his soldiers ‘to establish a database on the pattern of life and determine who’s doing what, to have a cup of coffee with everybody. It’s in the training we got from Northern Ireland to look for something that doesn’t fit in’ (quoted in Smith, 1999). Northern Ireland also taught British soldiers to balance force protection against winning the trust of the local population (Kretchik, 2004: 24). Furthermore, experiences from Northern Ireland shaped the perception of the British Army of appropriate military tasks. British SFOR troops regarded Drljača and Kovacević as obstacles to peace in their sector, a view influenced by similar situations in Northern Ireland (Lyck, 2008: 115–16). Britain was not enthusiastic about NATO’s creation of a special constabulary force tasked with establishing public security in Bosnia, arguing that regular British infantry soldiers were able to carry out crowd and riot control due to their experience in Northern Ireland (Perito, 2004: 143). The British Army was even ready to support efforts against economically motivated crimes. For instance, British soldiers, before being deployed to Bosnia as part of the EUFOR mission, trained for operations against illegal logging (BSW Timber, 2006). This is not to say that British soldiers acted as police officers, in Northern Ireland or in the Balkans; they remained soldiers. In Northern Ireland their remit was different from that of the Royal Ulster Constabulary, and in the Balkans their remit was different from those of UN or local police forces. After the Cold War, British Army training continued focusing on high-­intensity war, as it was thought to be easier to teach soldiers skills other than combat after teaching them how to fight rather than to teach combat skills to soldiers not prepared for war (see the discussion in Dandeker and Gow, 1999: 58–59; see also Hills, 2001). Still, in comparison, for example, to the US Army, the British Army was more flexible in the Balkans. 6 

Interview, Sarajevo, November 2007.

Soldiers as Crime Fighters 107 For explaining what military forces do in mission areas, it is important to study military organisations as actors in their own right; however, this does not tell the whole story. What soldiers do in war-torn countries also reflects the security situation on the ground, international norms and political preferences. With regard to the latter, even though the principle of mission command dictates that soldiers must have autonomy over policy implementation, politicians influence organisational practices. In some cases, they impose formal national caveats that ban ‘their’ troops from carrying out specific tasks or operating in specific areas. In other cases, politicians authorise specific operations. One example is the decision by Blair and ­Clinton to give the go-ahead for the arrest of Drljača and Kovacević. Another more recent and even more dramatic example is the commando raid on Osama Bin Laden by US special forces in 2011, which was authorised by US President Barack Obama (The White House, 2011). Politicians also have subtler means for steering the implementation of military operations, such as when they signal to top military commanders whether governments tolerate risk taking by military commanders. The British decision-making process in the case of operations such as the arrest of suspected war criminals in Bosnia remains unclear—as is also the case with the decision-making process of other troop-contributing nations. As a consequence, no conclusive answers can be offered as yet as to whether explanations focusing on politics and politicians, or on organisations, are more convincing. But a plausible argument can be made that explanations work best when combined. A variety of conditions influence the exact mix of behavioural influences, such as the extent to which political decisions drive the implementation of military missions. One important condition is issue salience. For instance, British politicians concerned themselves more with the Bosnia mission under IFOR and the early rotations of SFOR, when the stakes were high (eg with regard to the arrest of suspected war criminals and possible casualties, violent upheaval, and political fall-out) than later, when a British EUFOR commander had much discretion in interpreting his mandate because the stakes were lower. Many conditions influencing explanations for military practices also vary across states. One of these is the interpretation of military history. In its numerous small wars and ‘imperial policing’ activities, British Army officers had to make choices on their own, with politicians only providing general guidance (see Sowers, 2005: 396). After all, the British Army was relatively small and the areas it was to secure were vast. These experiences led contemporary British officers to insist on the principle of military mission command. Other ­countries have other histories. Following defeat in the Vietnam War and the traumatic Somalia mission in the early 1990s when militias killed US elite troops trying to capture a Somali warlord, US ­military leaders would only support missions and operations fulfilling c­ riteria such as the

108  Cornelius Friesendorf ­ rospect of military victory and decisive force (Campbell, 1998: 358). p Law enforcement efforts can hardly fulfil these ­criteria. Any explanation of military practices must therefore be sensitive to the context of the specific mission as well as to cross-national variation in practices and their ­underlying causes. ASSESSING THE IMPACT OF BRITISH ARMY PRACTICES

The involvement of the military in law enforcement has triggered as much concern as the militarisation of police forces. There is reason to worry that military involvement in crime fighting will undermine democracy and peace, among other reasons because it makes the military more prone to become involved in politics. But the effects of militarised law enforcement are ambivalent, especially in war-torn countries. Here, people need protection from state and non-state armed groups, and often international military forces are the only ones around that can offer protection. This is not to deny that militarised law enforcement has limitations and drawbacks. Also, as noted in the introduction, impact assessments have to take into account data problems and the normativity of claims about policy effects. Bosnia In arresting suspected war criminals in Bosnia, the British Army not only responded to claims for justice by those who had been victimised by the ­persons arrested. The arrests also created foundations for peace. After all, some of those arrested continued to threaten local citizens even after the war. Simo Drljača is a case in point. After the war he held on to his position as police chief of Prijedor, using this function to get rich through racketeering and the extortion of money from local citizens, including Bosnian Serbs; he also prevented displaced Bosniacs from reclaiming their homes, in violation of the Dayton agreement (Neuffer, 2001: 187–89). After his violent death at the hands of the SAS, the politics in Prijedor changed, with Bosnian Muslim even able to take up seats in the city council (Neuffer, 2001: 332). Yet the July 1997 arrest operation was of great importance, not only locally, but across post-war Bosnia. It sent a signal to radical nationalists that crimes would not be committed with impunity, and to other troop-contributing states that they, too, should make arrests. It enabled political reforms that hitherto had been difficult, especially in Republika Srpska, and the lack of which had undermined sustainable peace in Bosnia. It enhanced the credibility of SFOR. It forced those who had committed war crimes or continued to instigate violence to stay out of the limelight and to stop openly obstructing the peace process. And it led some

Soldiers as Crime Fighters 109 war crimes suspects to hand themselves in voluntarily (Gow, 2006: 59–62; Gow and Dandeker, 2001: 195–96; Meernik, 2005: 276). To be sure, the arrest operations did not make everybody in Bosnia feel safer. While most Bosniacs (Bosnian Muslims) supported the ICTY, most Bosnian Serbs regarded the institution as biased against Serbs and as a tool of powerful NATO states (Subotić, 2009: 127, footnotes 18 and 19; Meernik 2005: 274). Moreover, some suspected war criminals, in particular Radko Mladić who had commanded over the Srebrenica massacre, enjoyed high levels of public support within the Republika Srpska. One assessment of the ICTY in Bosnia finds that the institution did not have a meaningful impact on peace and reconciliation in Bosnia (Meernik, 2005: 287). Also operations against illegal logging and other illicit economic activities, undertaken under the umbrella of EUFOR, reveal the ambiguous impact of militarised law enforcement. At best, these operations had a neutral effect on the society and economy of Bosnia. While the British Army’s proactive stance sent a signal that international actors were committed to bolstering the rule of law in Bosnia, it overlooked the fact that in the absence of a functioning economy, many Bosnians depended on small-scale crime. Moreover, and despite the British Army’s experience in supporting law enforcement, EUFOR troops struggled to comply with law enforcement standards that were needed for making a successful case in court.7 Soldiers are not cops, even if they sometimes operate in a police-like capacity. Kosovo In Kosovo, the British Army, like KFOR more generally, was unable to stop attacks against, and the displacement of, minorities after the war had ended. One Kosovo Serb politician denied that the British Army were successful, saying that while 40,000 Serbs were living in Pristina before the war, by early 2000 there were only several hundred left (Pringle, 2000b). There were too few British troops to protect all potential and actual victims of violence. Also, those using violence had a better understanding of the local terrain than British soldiers and stealthily carried out attacks even when British troops were nearby. Nevertheless, British soldiers did protect many of those who had no other protectors. In Pristina, British troops tried to restore order and justice against all odds. They patrolled the streets to deter attacks against the besieged Serb minority population; disarmed former KLA fighters and simple gangsters using the KLA label; evicted Kosovars occupying Serb homes to make space for the rightful owners; escorted terrified Serbs; and went food 7 Interviews with an international prosecutor dealing with organised crime cases at the ­Bosnian higher court, Sarajevo, 30 October 2007 and 29 June 2008.

110  Cornelius Friesendorf s­ hopping for Serbs who did not dare to leave their homes (Dimbleby, 2000; Steele, 1999; Beaumont, 1999). On many occasions they directly challenged perpetrators of violence. In one case shortly after the war, British soldiers faced a crowd of angry and armed Kosovars bent on attacking Serbs; the soldiers, even though vastly outnumbered, disarmed the gunmen (Evans, 1999b). British soldiers were generally credited for using proportionate force, although some operations, such as the killing of two KLA members in July 1999 by British paratroopers, led to inquiries (Loyd, 1999). During riots, in particular in the divided city of Mitrovica, the resolute yet proportionate interventions of the British Army sent a signal of resolve to rioters. Riots in Kosovo were not chaotic but carefully orchestrated, with rioters exploiting any weaknesses of KFOR (International Crisis Group, 2004). In comparison, for example, to French troops, British troops showed fewer weaknesses, signalling to rioters that they would not have it easy. Counterfactually speaking, if the British Army had been present during the March 2004 riots, they most probably would have contained the riots, at least in their areas of operation. After the riots had ended, Kosovo’s President, Ibrahim Rugova, asked British troops to stay. According to his senior military and intelligence adviser: ‘British troops in Kosovo are the most ­popular with the population. They are seen as the most professional and neutral of KFOR. They radiate safety in people’s minds’ (quoted in Barnett, 2004). CONCLUSION

This chapter has examined three questions that were descriptive, explanatory and evaluative-normative, respectively: how do international military forces in war-torn countries fight crime, how can we explain specific crimefighting practices, and what are the effects of these practices? The case of the British Army in post-war Bosnia and Kosovo offers first answers. The British Army was a proactive crime fighter in the Balkans. This was for a variety of reasons: functional problem solving, international norms and the role of norm entrepreneurs, British politics and the organisational experience of the British Army. With regard to the consequences of ­British Army practices, in many cases British soldiers protected vulnerable individuals and groups. However, British soldiers could not be everywhere and violence and economically motivated crime occurred even when British ­ ­soldiers were around. The findings are only a first sketch. The forms, causes and consequences of military involvement in law enforcement deserve further scrutiny. Future research could collect more data and information on what military forces do on the ground. Military sociologists take a leading role in this type of research—yet so far they have paid little attention to crime fighting.

Soldiers as Crime Fighters 111 Researchers could also examine the causes of specific military practices. For instance, students of foreign policy analysis and of c­ ivil–military ­relations should take a closer look at the interactions of politicians and ­military ­commanders who decide over military involvement in crime fighting. Last, more research is warranted on the effects of military participation in crime fighting. ‘Best practices’ against crime are controversial, even when studying stable countries and the police. War-torn countries where multiple domestic and international actors influence levels and types of crime exacerbate methodological problems of evaluating policies and specific operations. These methodological challenges notwithstanding, the effects of crime fighting by the military, whether positive or negative, are too important to be ignored. REFERENCES Andreas, P (2008) Blue Helmets and Black Markets: The Business of Survival in the Siege of Sarajevo (Ithaca, Cornell University Press). Andreas, P and Nadelmann, E (2006) Policing the Globe: Criminalization and Crime Control in International Relations (Oxford, Oxford University Press). Auerswald, D and Saideman, S (2014) NATO in Afghanistan: Fighting Together, Fighting Alone (Princeton, Princeton University Press). Avant, D (1994) Political Institutions and Military Change: Lessons from Peripheral Wars (Ithaca, Cornell University Press). Barber, R (2010) ‘The Proportionality Equation: Balancing Military Objectives with Civilian Lives in the Armed Conflict in Afghanistan’ 15(3) Journal of Conflict & Security Law 467–500. Baumann, R, Gawrych, G and Kretchik, W (2012) Armed Peacekeepers in Bosnia (Fort Leavenworth, KA, Combat Studies Institute Press). B92 (2008) ‘London thwarted Karadžić’s Arrest’, 9 August, www.b92.net/eng/news/ crimes.php?yyyy=2008&mm=08&dd=09&nav_id=52578. Barnett, N (2004) ‘Britain’s Troops Must Stay, Demands President of Kosovo’, Daily Telegraph, 4 April, www.telegraph.co.uk/news/1458511/Britains-troops-muststay-demands-president-of-Kosovo.html. BBC (2004) ‘British Troops Arrive in Kosovo’, 19 March, http://news.bbc.co.uk/2/ hi/uk_news/3523240.stm. Beaumont, P (1999) ‘Now Mafia Wages War In Kosovo’, The Observer, 15 August, 19. Becker, M (ed) (2010) Handbook of Organizational Routines (Cheltenham, Edward Elgar). Binyon, M (1997) ‘Red Tape Tripped Up SAS in Bosnia’, 24 July The Times (of London) 15. Boyes, R and Wright, E (1999) ‘Drugs Money Linked to Kosovo Rebels’, The Times (of London), 24 March. BSW Timber (2006) ‘BSW Helps Illegal Logging Fight’, 1 March, www.bsw.co.uk/ news/articles/13 (accessed 17 October 2015). Campbell, K (1998) ‘Once Burned, Twice Cautious: Explaining the WeinbergerPowell Doctrine’ 24(3) Armed Forces & Society 357–74.

112  Cornelius Friesendorf Caniglia, R (2001) ‘US and British Approaches to Force Protection’ Military Review, July–August, 73–81. Dandeker, C and Gow, J (1999) ‘Military Culture and Strategic Peacekeeping’ 10(2) Small Wars & Insurgencies 58–79. Der Spiegel (2004) ‘Die Hasen vom Amselfeld’ [The Rabbits of Kosovo Polje], No. 19, 24–29. Di Giovanni, J (2000) ‘Britons Dig In At Kosovo Flashpoint’ The Times (of London), 20 December. Dimbleby, J (2000) ‘Catastrophe’ Daily Mail (London), 15 January, 18–19. Easton, M, den Boer, M, Janssens, J, Moelker, R and Beken, T (eds), (2010) Blurring Military and Police Roles (The Hague, Eleven International Publishing). Evans, M (1999a) ‘British Soldier Puts a Stop to 200 Looters’, The Times (of ­London) 24 June, 16. Evans, M (1999b) ‘Soldier Tells of Kosovo Medal Bravery’, The Times (of London), 30 October, 8. Friesendorf, C (2007) US Foreign Policy and the War on Drugs: Displacing the Cocaine and Heroin Industry (London, Routledge). Friesendorf, C (2010) The Military and Law Enforcement in Peace Operations: ­Lessons from Bosnia-Herzegovina and Kosovo (Vienna, LIT and DCAF). Friesendorf, C (2011) ‘Problems of Crime-Fighting by “Internationals” in Kosovo’ in James Cockayne and Adam Lupel (eds), Peace Operations and Organized Crime: Enemies or Allies? (London, Routledge) 47–67. Friesendorf, C and Penksa, S (2008) ‘Militarized Law Enforcement in Peace ­Operations: EUFOR in Bosnia-Herzegovina’ 15(5) International Peacekeeping 677–94. Geis, A, Müller, H, and Schörnig, N (2013) The Janus Face of Liberal Democracies: Militant ‘Forces for Good’ (Cambridge, Cambridge University Press). Gelpi, C, Feaver, P and Reifler, J (2009) Paying the Human Costs of War: ­American Public Opinion & Casualties in Military Conflicts (Princeton, Princeton ­University Press). Gow, J (2006) ‘The ICTY, War Crimes Enforcement and Dayton: The Ghost in the Machine’ 5(1) Ethnopolitics 49–65. Gow, J and Dandeker, C (2001) ‘The Legitimation of Strategic Peacekeeping: ­Military Culture, the Defining Moment’ in DS Gordon and FH Toase (eds), Aspects of Peacekeeping (London, Frank Cass) 181–98. Hills, A (2001) ‘The Inherent Limits of Military Forces in Policing Peace Operations’ 8(3) International Peacekeeping 79–98. House of Commons (2004) ‘Deployment of British Forces (Kosovo)’, Parliamentary Debate, 22 March, www.theyworkforyou.com/debates/?id=2004-03-22.567.0. Human Rights Watch (2004) ‘Failure to Protect: UNMIK and KFOR’s Inability to Protect Serbs and Other Minorities’, 25 July. International Crisis Group (2000) ‘War Criminals in Bosnia’s Republika Srpska: Who Are the People in Your Neighbourhood?’, ICG Balkans Report No. 103, 2 November. International Crisis Group (2004) ‘Collapse in Kosovo’, ICG Europe Report No. 155, 22 April. Jackson, M (2007) Soldier: The Autobiography (London, Corgi Books). Kaldor, M (2005) New & Old Wars: Organized Violence in a Global Era (­Cambridge, Polity).

Soldiers as Crime Fighters 113 Kaplan, F (2013) The Insurgents: David Petraeus and the Plot to Change the ­American Way of War (New York, Simon & Schuster). Kraska, P (2007) ‘Militarization and Policing—Its Relevance to 21st Century ­Policing’ 1(4) Policing 501–13. Kretchik, W (2004) ‘Armed for Peace: National Attitudes and Force Protection ­Posture in Bosnia, 1995–2001’ 15(2) Small Wars and Insurgencies 20–37. Lorenz, F (1997) ‘War Criminals: Testing the Limits of Military Force’, Joint Forces Quarterly (Summer) 4–10. Loyd, A (1999) ‘Paratroopers Shot Kosovans “In the Back”’, The Times (of London) 5 July, 12. Lyck, M (2008) Peace Operations and International Criminal Justice: Building Peace After Mass Atrocities (London, Routledge). McGrory, G (1999) ‘Paras Kill Off-duty Serb Policeman’ The Times (of London) 14 June, 5. Meernik, J (2005) ‘Justice and Peace? How the International Criminal Tribunal Affects Societal Peace in Bosnia’ 42(3) Journal of Peace Research 271–89. Neuffer, E (2001) The Key to My Neighbour’s House: Seeking Justice in Bosnia and Rwanda (London, Bloomsbury). Perito, R (2004) Where is the Lone Ranger When We Need Him? America’s Role for a Postconflict Stability Force (Washington DC, United States Institute of Peace Press). Powell, W and DiMaggio P (eds) (1991) The New Institutionalism in Organizational Analysis (Chicago, University of Chicago Press). Pringle, J (2000a) ‘Kosovo Town Calm as UN Plans Rethink’, The Times (of ­London) 23 February. Pringle, J (2000b) ‘Green Jackets Take on Hate City’, The Times (of London) 19 February. Reinhardt, K (2002) KFOR: Streitkräfte für den Frieden. Tagebuchaufzeichnungen als deutscher Kommandeur im Kosovo [Armed Forces for Peace: Diary notes of a German Commander in Kosovo] (Frankfurt am Main, Blazek & Bergmann). Sil, R and Katzenstein, P (2010) Beyond Paradigms: Analytic Eclecticism in the Study of World Politics (New York, Palgrave). Smith, J (1999) ‘A GI’s Home Is His Fortress’, The Washington Post, 5 October. Sowers, T (2005) ‘Beyond the Soldier and the State: Contemporary Operations and Variance in Principal-Agent Relationships’ 31(3) Armed Forces & Society 385–409. Steele, J (1999) ‘Kosovo: From a Police State to a State With No Police At All’, The Guardian, 23 July. Subotić, Jelena (2009) Hijacked Justice: Dealing With the Past in the Balkans (Ithaca: Cornell University Press). The White House (2011) ‘Osama Bin Laden Dead’, 2 May, www.whitehouse.gov/ blog/2011/05/02/osama-bin-laden-dead. Van Creveld, M (1982) Fighting Power: U.S.-German Performance, 1939–1945 (Westport, Greenwood). Walzer, M (2006) Just and Unjust Wars: A Moral Argument With Historical Illustrations, 4th edn (New York, Basic Books). Zaalberg, T (2006) Soldiers and Civil Power: Supporting or Substituting Civil Authorities in Modern Peace Operations (Amsterdam, Amsterdam University Press).

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6 The Intersection Between International Criminal Law and National Military/Disciplinary Law GRANT NIEMANN

INTRODUCTION

A

DISTINCT CRIMINOLOGY and penology for international crime is yet to fully emerge (Drumbl, 2003: 6) but the accepted social norms and the deviation from them by the offender are often distinctly different when comparing domestic and international crime. This distinction is particularly noticeable when it comes to comparing violent crimes motivated by individual acts of passion or greed with those c­ommitted in compliance with some military objective. Domestic criminal law is directed at regulating behaviour which deviates from the generally accepted social standard, whereas military justice is often focused on maintaining discipline within the ranks and international criminal law is focused on dealing with conduct which could pose a threat to humanity. While individuals are held accountable for the commission of international crimes, blameworthiness is viewed more as the collective responsibility of the group or society from which that individual emanates, rather than the moral culpability of the particular individual charged with the crime (O’Reilly, 2004/5: 153). While it would be readily accepted as ‘inappropriate’ to apply international criminal law to an ordinary domestic violence offence, it has not been so obviously unacceptable for states to apply domestic criminal law to international crimes, although the reasons for this are based more on real­ politik considerations than legal theory and constitute a contrivance (see Polyukhovich v Commonwealth (1991) 172 CLR 501, per Brennan J at 543). International criminal law when enforced by international courts and tribunals such as the International Criminal Court (ICC) and the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR respectively) exercise limited jurisdiction over the parties and the measures are generally restricted to prosecuting the ‘core crimes’ as set out

116  Grant Niemann in their respective statutes. These ‘core crimes’ are generally crimes against humanity, genocide and war crimes. However, when states are dealing with conduct which could amount to a breach of these ‘core crimes’ they have traditionally enjoyed a broader choice of measures and can select from a much wider jurisdictional range, including civil, criminal, military or executive action. The choice of crimes has also been broader, ranging from the ‘core crimes’ to the less serious domestic civilian crimes such as manslaughter; or military discipline proceedings for ‘disgraceful behaviour’. States have also had the option of doing nothing at all. The international obligation imposed on states to hold their military ­personnel accountable for the commission of ‘core crimes’ is now more onerous because of the ‘complementarity’ obligations imposed on them by the Rome Treaty of the International Criminal Court (Rome Treaty of the ICC or Rome Stature). Before the Rome Statute, states had considerable latitude to adopt measures necessary to shield their soldiers from being held accountable for the most serious crimes—the ‘core crimes’—and often favoured less serious military disciplinary offences, assuming they decided to take any action at all. As soldiers implement the political and military policy objectives of their superiors it is not surprising that states have been reluctant to punish them for ‘doing their bidding’. The social norm of the soldier’s nation state may not even see this conduct as deviant (Tallgren, 2002: 573). The ICC is complementary to national jurisdictions and the Rome ­Statute does not oblige states to modify their laws so that they ‘mirror’ the ‘core crimes’ as set out in the Rome Statute. Hence it is expected that states will continue to exercise their jurisdiction ahead of the ICC investigating or prosecuting the ‘core crimes’, but do states still have the freedom of choice of jurisdiction and crimes that they once enjoyed before the Rome Statute became law? While ‘state parties’ to the Rome Treaty of the ICC are more directly obligated than ‘non-state parties’ it is arguable that all states have partly lost this freedom of choice and that the ‘complementarity’ principle requires states to match their jurisdiction with the ICC’s jurisdiction and their crimes with the ICC’s ‘core crimes’ (Drumbl, 2003: 6). In this chapter the historical relationship between the state and its soldiers will be examined in the context of enforcement of international criminal law. It is argued that for those states that have ratified the Rome Treaty of the ICC, reliance on laws relating to military discipline does not satisfy the ‘complementarity’ obligations to bring offenders to justice before their national criminal courts. THE ‘SOVEREIGN AND THE SOLDIER’

National military codes preceded the development of international criminal law and have a much longer history. While primarily focusing on discipline,

Int’l Criminal Law and National Military/Disciplinary Law 117 they also prescribed how soldiers should behave in battle. These laws date back to ancient Greece and possibly earlier (Lanni, 2007). Knights of the realm observed chivalry codes with the duty to act honourably towards one’s adversary (Meron, 1998: 4–5). In the sixteenth and seventeenth centuries, the Netherlands and Sweden adopted articles regulating the conduct of armed conflict (Solis, 2010: 7). In the eighteenth century Emmerich de ­Vattel, a Swiss philosopher, diplomat and lawyer, wrote his famous work The Law of Nations, where he opined extensively on the issue of just and unjust wars (Niemann, 2014: 4). By the nineteenth century the British ­Manual of Military Law of 1884 constituted a comprehensive code of military justice where battlefield offences were dealt with by way courts martial (Niemann, 2014: 4). On the other side of the Atlantic, the United States of America had implemented an enduring comprehensive code drafted by a German academic, Francis Lieber. The ‘Lieber Code’ bearing the formal title of Instructions for the Government of Armies of the United States in the Field of 24 April 1863 (Niemann, 2014: 4), was the forerunner of most modern military codes. It significantly influenced the development of international laws of war and parts of it are still reflected in the laws and customs of war to this day. Both Vattel and Lieber grappled with such issues as citizens joining the conflict by spontaneously taking up arms (levée en masse); the treatment of prisoners of war; limitations on the means of warfare incorporating principles of proportionality; treachery; denial of quarter; attacking undefended towns, churches, hospitals and culturally significant buildings; looting and pillaging (Niemann, 2014: 4). These early codes and the philosophy behind them were predicated on the assumption that, to the extent that they should be enforced at all against members of the armed forces, then the only conceivable venue for enforcement would be a judicial mechanism within the soldier’s nation state. Invariably the judicial mechanism was part of the military apparatus of that nation state. While international enforcement was not entirely unheard of (Solis, 2010: 7), the basic assumption was that the regulation of the conduct of the soldier was exclusively a matter between the sovereign and the soldier. Foreign states were to have no part in this disciplinary process and it would have been inconceivable for international institutions (rare as they were) to play any role in administering these laws (Niemann, 2014: 4). This bond between the sovereign and the soldier, where discipline and obedience were absolutely fundamental to the relationship, permitted no foreign intrusion. The sovereign state depended on the soldier for its protection and survival so it would have made no sense for this relationship to be governed by any other laws than the laws of the sovereign (Degenhardt, 2015: 143). Hence it is understandable that states would not tolerate any interference from any outside source, especially when it came to matters of military discipline. These sentiments have deep roots and carry great force to this day. Military commanders still often argue for the need to maintain complete control

118  Grant Niemann over the legal regime, which is designed to ensure discipline in the ranks (Copelin, 2009; Gaeta, 1999: 188). This need overrides any other considerations when it comes to the enforcement and design of these laws. This argument would extend to the choice of enforcement mechanisms, favouring military justice over civilian justice and where possible excluding international justice entirely. Further a military commander can be held criminally liable for crimes committed by persons under his or her command or control (O’Reilly, 2004/5: 153). This liability arises where it can be shown that the commander failed to take all necessary and reasonable measures to prevent or repress the commission of these crimes by their subordinates (see Article 28 (a)(ii) of the Rome Statute of the ICC). This command responsibility relates directly to the duty of a military commander, as required by the government of the commander’s state, a duty they readily accept (O’Reilly, 2004/5: 153). Prior to the Nuremberg Trials the idea of permitting another state, and/or the international community, to step in between the military commander and his/her state so as to prosecute military commanders for a breach of this duty would have been unthinkable (Degenhardt, 2015: 143). Similarly, the need to ensure that the soldier obeys orders without question (Copelin, 2009) is partly why the laws and customs of war have waxed and waned on the issue of whether committing a war crime while obeying an order should be a complete defence to the charge. The reasoning is that the soldier is the obedient servant of the government of the sovereign state and if the state errs by issuing an illegal order then the soldier should not be responsible for the illegal act of the state as it is the duty of the soldier not to ‘reason why but to do or die’. Accordingly a British solder could plead the ‘superior orders defence’ before a British military court (Hobel, 2011: 581). The introduction of international enforcement came about primarily because after the World War II the Allies were determined to hold the Nazi perpetrators accountable for their crimes, and Germany had no functioning government in any event. This insertion of an international enforcement mechanism forever weakened the exclusive nature of the relationship between the soldier and his/her sovereign state. Coupled with the emergence and recognition of universal human rights norms, international tribunals were, by the end of the twentieth century, able to opine that a State sovereignty oriented approach has been gradually supplanted by a human being oriented approach. Gradually the maxim of Roman law ‘hominum causa omne jus constitutum est’—all law is created for the benefit of human beings has gained a firm foothold in the international community … (Prosecutor v Tadic, Decision on the defence motion for interlocutory appeal on jurisdiction (October 1995) Case Number IT-94-1-AR 72 at para 97, p 54).

With the international community involving itself in the enforcement of international criminal law, the need for an absolute ‘superior orders defence’

Int’l Criminal Law and National Military/Disciplinary Law 119 no longer arose in these international trials and was arguably an obstacle to enforcement (Hobel, 2011: 581). Accordingly, for a while, soldiers facing charges before international tribunals, such as Nuremberg, Tokyo and the ICTY could not plead the superior orders defence (Gaeta, 1999: 188; Hobel, 2011: 581). While over time states abandoned the ‘absolute ­superior orders defence’ in favour of the conditional or limited defence (Gaeta, 1999: 188), unlike in international criminal tribunals, the defence was still nevertheless available. Hence there emerged a dichotomy between the availability of the defence at the international level as opposed to cases brought before national courts. States were able to pull back this lost ground when they negotiated the Rome Statute of the ICC (Hobel, 2011: 581). The fact that states occupied the prime negotiating position as potential parties to the Rome Statute enabled them to do this but the reinstatement of the defence arose more from a need to ensure that complementary measures would not prevent soldiers from being able to plead the defence before their own courts, rather than what a soldier might do before the ICC (Gaeta, 1999: 188). Bearing in mind that the drafting states ensured that the primary responsibility for prosecuting war crimes would always remain with nation states, and only in very limited and exceptional circumstances would the ICC become involved in the process (Article 1 of the Rome Statute of the ICC), the need for ensuring that a superior orders defence was available in state prosecutions became even more pressing. However, the experience at Nuremberg, the ICTY and the progression of human rights law, did have some influence on the drafters of the Rome Statute because while the ‘superior orders defence’ was reinstated, it was only open to a defendant if the person was ‘under a legal obligation to obey the order …’ (Article 33(1)(a) Rome Statute of the ICC), if the person ‘did not know the order was unlawful’ (Article 33(1)(b) of the Rome Statute of the ICC) and provided the order itself was not ‘manifestly unlawful’ (Article 33(1)(c) of the Rome Statute of the ICC). Importantly it had no application to the ‘human rights’-based offences of genocide or crimes against humanity (Article 33(2) of the Rome Statute of the ICC). Compromises such as this by the drafters of the Rome Statute demonstrate that by the turn of the century, states had recognised that returning to the pre-World War II, exclusive sovereign–soldier relationship was no longer viable. The recognition of the new international order is articulated in the wording of the Preamble to the Rome Statute, where parties are reminded that ‘… all peoples of the world are united by common bonds, their cultures pieced together in a shared heritage …’, that in the past the commission of international crimes has ‘… deeply shocked the conscience of humanity’ and that such crimes ‘… threaten the peace, security and well-being of the world’ and ‘… must not go unpunished’. However, while states could not totally exclude international enforcement, they could preserve some of the elements of the ‘old world order’ because when it came to enforcement

120  Grant Niemann the Preamble reminds us that it is states that must take measures ‘… at the national level …’ and that it is the ‘… duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. To the extent that the ICC is given a role, it is ‘… complementary to national criminal jurisdictions’. Thus the Preamble articulates the balance between the needs and wants of all of humanity and the desire of states to ensure that the relationship between the sovereign state and the soldier is preserved. However, the Preamble does not elaborately articulate how states should discharge their ‘duty’ to prosecute international criminal law offenders other than to require them to exercise their ‘criminal jurisdiction’ over those responsible. Does this mean that states are restricted to only exercising their ‘criminal jurisdiction’ or may they deal with the offender in some other way? JURISDICTION

Jurisdiction defines the geographical reach of a court and the subject ­matter of its business (see Lipohar v R (1999) 200 CLR 485). Subject only to constitutional restraints, a state may create courts with jurisdiction over any of its territory and on any subject matter. It can also apply this jurisdiction to any of its citizens within the constitutional reach of the state. This constitutional reach may authorise the state to apply its laws to its citizens irrespective of where they are in the universe, including the territory of another state. Accordingly, when it comes to investing court’s within the state with jurisdiction over core international crimes, provided the state is operating within its own territory and Constitution, it is free to invest jurisdiction over these core crime in any of its courts, be they civilian or military. On the other hand, when international criminal law is enforced by international courts, those courts only exercise ‘universal jurisdiction’. When states create international courts, directly by treaty, as occurred with the ICC, or indirectly when created on behalf of states by the Security Council of the UN, they in theory surrender to that court part of their national jurisdiction that they would have had over the potential offender. Within the jurisdictional remit of the particular international tribunal, the tribunal may investigate and prosecute an individual who it is alleged has committed one or more of the ‘core crimes’. While international tribunals are generally restricted by the terms of their statute as to when (temporal) and where (territorial) their jurisdiction operates, they nevertheless invoke universal jurisdiction (O’Reilly, 2004/5: 153) in the sense that they do not have to rely on alternative or subsidiary forms of jurisdiction such as territoriality: nationality of the perpetrator or victim (also known as ‘passive jurisdiction’). When, however, the state seeks to exercise jurisdiction over the core international crimes in competition with another state and where the crime was

Int’l Criminal Law and National Military/Disciplinary Law 121 not committed by one of its citizens or upon its territory, then reliance on universal jurisdiction alone is problematic because the state asserting jurisdiction must have regard for the sovereignty of the other state. Further if the accused is a ‘public official’ of the other state then the state exercising jurisdiction may be obliged to respect the immunity of that public official (see Democratic Republic of Congo v Belgium (Arrest Warrant Case) ­Judgment, ICJ Reports 2002 at 61). While state legislatures sometimes give their courts ‘universal jurisdiction’ over ‘core crimes’ (see section 268.117 Criminal Code Act 1995 (Australia)), they generally do not rely on ‘universal jurisdiction’ as the sole basis for exercising jurisdiction (du Plessis, 2007: 462). In these circumstances they tend to bolster their jurisdictional claim by asserting some other jurisdictional interest such as the nationality of the offender (see Polyukhovich v The Commonwealth (1991) 101 ALR 545 per Toohey J at 649–50), or nationality of the victim in order to strengthen their universal jurisdictional base (see Attorney-General of the Government of Israel v Eichmann (1961) 36 ILR 5 at 281–82). States may exercise ‘universal jurisdiction’ over their own soldiers, especially if they are accused of committing breaches of the ‘core crimes’ on the territory of another state, and they are available for trial, but they are not limited to universal jurisdiction and may choose to rely on their ­soldier’s nationality or their membership of the military as a basis for exercising jurisdiction. Universal jurisdiction as exercised by the ICC is, however, broader than that available to states where sovereignty and public immunity limit the reach of this jurisdiction (see Democratic Republic of Congo v Belgium (Arrest Warrant Case) Judgment, ICJ Reports 2002). Once the ICC, within the terms of its Statute, is in a position to exercise universal jurisdiction, it may do so irrespective of the nationality, location or status of the offender. It is not constrained by considerations of sovereignty or the official capacity of the offender (Article 27 of the Rome Statute of the ICC). The question that then arises is, if according to the Preamble of the Rome Statute, states must ensure that the ‘… most serious crimes of concern to the international community … must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level …’, then if the jurisdiction of the ICC is truly ‘complementary’ to ‘national criminal jurisdictions’, does the ratification of the Rome Treaty override these sovereignty/immunity constraints when states elect to prosecute relying on universal jurisdiction? It is entirely possible that by way of entering into a treaty, states could mutually agree to expand the reach of universal jurisdiction as exercised by them so that they are not constrained by sovereignty or official capacity immunity (du Plessis, 2007: 462). In other words, does the combined effect of ratifying the Rome Statute and the principle of ‘complementarity’ allow states to expand the reach of their universal jurisdiction by importing into their national laws the equivalent of Article 27 of the Rome Statute? (Philippe, 2006: 388).

122  Grant Niemann ICC AND THE NATURE OF COMPLEMENTARITY

In addition to the reference to ‘complementarity’ referred to in the Preamble of the Rome Statute, Article 1 rehearses the complementary nature of the ICC’s jurisdiction. Further Article 17 refers to the Preamble and Article 1 of the Statute and goes on to provide that a case before the ICC will not be admissible if it is already being investigated or prosecuted by a state. An exception to this could arise if the state is ‘… unwilling or unable to ­genuinely carry out the investigation or prosecution’. Article 17(1)(b) specifically acknowledges that a genuine decision by a state not to prosecute will be respected by the ICC when determining whether or not it will permit a case to be admissible. A case will also not be admissible if it is of insufficient gravity to justify further action by the ICC. Article 17(2) permits the ICC to deal with those cases where a state has not been genuine in its efforts to bring the accused to justice, such that the ‘prosecutorial decision-making process has been influenced by the desire to shield the accused from prosecution action; or has been unduly delayed; or has not been conducted independently or impartially, with the intention of not investigating and prosecuting the case’. A specific right to challenge an Article 17 ruling on admissibility is preserved by Article 19(2)(b) whereby a state which has jurisdiction over a case can inform the ICC that it is already in the process of investigating or prosecuting the case or that it has previously investigated or prosecuted the matter. When the Rome Treaty was originally negotiated, it was assumed that states would carry the burden of international prosecutions, with the ICC only participating in rare and exceptional circumstances where a state either lacked the capacity to prosecute or for reasons of realpolitik deliberately refused to prosecute (McAuliff, 2014). This also appeared to be the approach initially taken by the ICC when it commenced it operations. However over time there has been a gradual shift in its position, whereby the ICC now perceives its role as sharing the prosecutorial burden with states on the basis that the ICC will undertake the prosecutions of the major cases involving leaders and senior officials, leaving it to states to undertake the ‘mop-up’ function of prosecuting minor officials and others. Hence the ICC sees its role as ‘burden sharing’ with states (McAuliff, 2014). To some extent this change of role by the ICC has come about by the greater number of Article 14(1) referrals to the ICC than had been expected (Cross and Williams, 2010: 338). While the negotiating states may not have anticipated the number of referrals that have occurred, the inherently complex nature of these prosecutions and the intensely political circumstances surrounding them suggest that this should have been foreseen. To date, the referrals from the African states of Uganda, Congo, Central African Republic and Mali have occurred because of lack of capacity to prosecute, as well

Int’l Criminal Law and National Military/Disciplinary Law 123 as wanting to avoid the domestic political consequences of local prosecutions. In Prosecutor v Katanga, Reasons for the oral decision on the motion challenging the admissibility of the case, ICC-0104-01/07 (2009) at para 77, the ICC specifically accepted the argument that ‘unwillingness’ within the meaning of Article 17(2) included a situation where a state wanted to see the offender prosecuted, but for domestic political reasons did not wish to prosecute the offender before their own national courts. This approach by the ICC has brought about the development of a principal of ‘cooperative complementarity’ (Cross and Williams, 2010: 338). However the idea of a state which possessed the capacity to prosecute but wanted to avoid the domestic political consequences of so doing and thus referred the case to the ICC should not be ruled out. The experience of the Australian war crimes prosecutions of World War II Nazi perpetrators at the end of the 1980s was seen by many as a failed experiment. To some extent this influenced the Australian government’s decision in favour of ratifying the Rome Treaty because it was considered that in some circumstances it would be preferable for politically sensitive prosecutions to take place offshore, thus mitigating division within the domestic community (Blumenthall and McCormack, 2008: 288). An interesting situation occurred in Australia in 2011 when the Sri ­Lankan President, Mohindra Rajapaks, was invited by Australia to attend the Commonwealth Heads of Government meeting in Perth. When he was in Perth, a former Sri Lankan citizen (then resident in Australia) commenced criminal proceedings against the president for alleged war crimes committed in Sri Lanka during the 2009 civil war. While a prosecution for a war crime under the Australian Criminal Code can only be brought in the name of the Australian Attorney-General and with her consent (which decision is final and cannot be reviewed, see Criminal Code Act 1995 (Cth) 268.122), there is no doubt that this incident caused the Australian government considerable embarrassment. At the time (and as is still the case) there is considerable international agitation for ‘officials’ within Sri Lanka to be prosecuted for war crimes alleged to have been committed during the civil war. Fortunately for the Attorney-General there was a good argument that, as a result of the decision of the ICJ in the Arrest Warrant Case, and because Sri Lanka was not a state party to the Rome Treaty, Rajapaks (who had head of state immunity), could not have been prosecuted in Australia in any event. However, would the situation have been different if Sri Lanka were a state party to the Rome Treaty of the ICC? The question here (as noted above) is whether ‘complementarity’ is a two-way exercise. In other words, if states can empower the ICC to exercise universal jurisdiction without being constrained by restrictions such as head of state or public official immunity, can they by treaty create for themselves an exception to public official immunity to put themselves on an equal footing with the ICC when it comes to their exercising universal

124  Grant Niemann jurisdiction? The Preamble of the Rome Statute warns states that the ‘… most serious crimes of concern to the international community … must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level …’. History shows that in many cases the head of state or senior public officials are those most culpable and the most serious offenders when it comes to the commission of the core international crimes. Does this mean that only the ICC can prosecute those state officials? Or has the creation of the treaty now empowered states to do what the ICJ said in the Arrest Warrant Case that they were restricted in doing? At least one of the objectives of the ‘complementarity’ principle was to make sure that the ability to prosecute persons who had committed international crimes could not thwarted by the offender securing sanctuary in a ‘safe haven’; another objective was to achieve a ‘harmonisation’ between national jurisdictions and the jurisdiction of the ICC when it comes to the prosecution of international crimes (Philippe, 2006: 388). If these two objectives are to be achieved then it would be incongruous if head of state or public official immunity could prevent a state from exercising full universal jurisdiction. The better view would then seem to be that states have by treaty agreed to expand their jurisdiction to the same level of universal jurisdiction as exercised by the ICC (Philippe, 2006: 388). By this process of reasoning (Article 98 of the Rome Statute, which restricts the ICC from compelling a state to act contrary to its international obligations), these restrictions would only apply to dealings with the public officials of nonstate parties. However, between state parties, Article 98 does not fetter the ICC and by analogy should not limit the jurisdiction of state parties. So to answer the question posed above, had Sri Lanka been a state party to the Rome Treaty, Australia could have exercised universal jurisdiction over its president and not have been prevented from doing so by head of state immunity. There is, however, a considerable difference between the capacity to prosecute and the willingness to do so. No doubt Australia prosecuting the Sri Lankan president would have created severe diplomatic tensions between Sri Lanka and Australia and may have had other unsatisfactory ‘flow-on’ effects, so even if Australia could have prosecuted in the circumstances of this case, it most certainly would not have wanted to do so (Philippe, 2006: 388). It seems that this is where the principle of ‘cooperative complementary’ would operate effectively. A country could make the argument that the ICC should have the role of prosecuting the ‘most serious international offenders’ such as heads of state and senior public officials, and national security considerations are a basis for it being justifiably ‘unwilling’ to ­prosecute within the meaning of Article 17(2) of the Statute. If the ‘complementarity principle’ imposes an obligation on state parties to harmonise their national criminal law with international criminal law

Int’l Criminal Law and National Military/Disciplinary Law 125 (Delmas-Marty, 2006: 7) (and it would seem that those state parties who have incorporated the Rome Statute crimes into their national legislation would hold this view), then are state parties obliged to only prosecute the core international crimes in circumstances where they are purporting to comply with their obligations under the ‘complementarity principle’ or do their prosecutors have a greater freedom of choice than the ICC Prosecutor? For example, if the offending being investigated clearly points to the commission of a war crime, must the relevant state party only deal with the matter as a war crime or could they choose some other course of action, such as military discipline proceedings or a domestic criminal offence, such as murder, and yet still comply with their obligations under the complementarity principle? SOME EXAMPLES OF PROSECUTIONS BY STATE PARTIES SINCE RATIFICATION OF THE ROME TREATY

When the ICTY was created by the UN Security Council under chapter VII of the UN Charter it was given jurisdictional primacy over national prosecutions. The ICTY Appeals Chamber in Prosecutor v Tadic, Decision on the defence motion for interlocutory appeal on jurisdiction (October 1995) Case No IT-94-1-AR 72, reasoned that this was a necessary consequence of international intervention in the internal affairs of a state so as to ensure that states did not categorise international crimes as ordinary domestic offences. Article 17(2)(a) provides that the ICC may decide an otherwise inadmissible case is admissible and exercise jurisdiction over the matter when the proceedings undertaken by the state are designed to ‘shield’ the accused from criminal responsibility from Article 5 ‘core crimes’. Both the Preamble and Article 1 specifically refer to ‘national criminal jurisdictions’ and the ICC jurisdiction being complementary to those ‘national criminal jurisdictions’. The plain meaning of these words suggests that the inadmissible proceedings being ‘investigated or prosecuted by the State’ within the meaning of Article 17(1)(a) are Article 5-type ‘core crimes’ and Article 17(1)(c) would not affect this interpretation where the relevant state is trying to ‘shield’ the accused from criminal responsibility from Article 5 ‘core crimes’. If a state investigates and/or prosecutes for ‘conduct’ which could or does amount to a breach of any of the Article 5 ‘core crimes’ and wishes to ensure that the case is inadmissible before the ICC, thus passing the ‘complementarity test’, then it would not have the freedom to deal with the matter as an ordinary domestic offence (Philippe, 2006: 388). Nor could it be dealt with in a state jurisdiction which is classified as other than the state’s criminal jurisdiction.

126  Grant Niemann An examination of a sample of cases investigated and or prosecuted by state parties to the ICC Rome Treaty for conduct amounting to breaches of Article 5 offences since ratification indicates that so far states seem to have paid little attention to the ‘complementarity test’. Australian Case In Re Civilian Casualty Court Martial (2011) 259 FLR 208, an A ­ ustralian commando regiment conducted a night-time raid in Uruzgan Province, Afghanistan in 2009 where civilians, including children, were killed or seriously injured. The ‘clearance operation’ involved an attack on a civilian house from which it is alleged a ‘male’ fired upon the Australian soldiers. The Australians returned fire by throwing two fragmentation grenades into the house, killing five children and injuring four civilians (Kelly, 2013). The matter was subsequently investigated by the Australian Defence Force (ADF). As a consequence of this investigation a regular army officer was charged with ‘failing to comply with a general order’ contrary to section 29 of the Defence Force Discipline Act 1980 and in the alternative with ‘prejudicial conduct’ contrary to section 60 of the Defence Force Discipline Act. Two army reservists were charged with ‘manslaughter by negligence’, a civilian Crimes Act offence which is picked up and applied to members of the military by section 61(3) of the Defence Force Discipline Act 1980. In the alternative they were charged with ‘dangerous conduct with negligence as to the consequences’ contrary to section 36(3) of the Defence Force Discipline Act (Kelly, 2013). The crime ‘manslaughter by negligence’ is a civilian crime and has ­nothing to do with the conduct of soldiers involved in military operations. The only relevant crime for the purposes of Article 17 of the Rome Statute in these circumstances would have been a war crime under Article 8, which is replicated in Australian law in Subdivisions D to H of the Criminal Code Act 1995. This was the first time Australian defence service personnel were charged with unlawful killing of civilians under the Defence Force Discipline Act; all previous unlawful killings cases involved members of the defence force (as perpetrator and victim) and did not relate to combat operations. The Defence Force Discipline Act, as the name implies, is designed to address issues of ‘discipline’ by service personnel within the Australian Defence Force, not to satisfy Australia’s obligations under the Rome Treaty (Kelly, 2013). When the matter came on for preliminary hearing before the Judge Advocate the defendants made an application for the charges to be dismissed or permanently stayed on the basis that ‘negligent manslaughter’ had no application to a combat situation which is only covered by the Australian

Int’l Criminal Law and National Military/Disciplinary Law 127 Criminal Code 1995 (the international ‘core crimes’) and that soldiers do not have a civilian duty of care (negligence) in combat situations. The Judge Advocate found that in order for the prosecution to succeed, the Director of Military Prosecutions would have to prove that accused soldiers owed a duty of care to the victims. The Judge Advocate found that there was a line of cases dating back to World War II which established that there was no such duty of care applicable to members of the armed forces engaged in combat with the enemy. Accordingly the defendant’s application was upheld and the case was stayed. Subsequently the Director of Military Prosecutions advised the Judge Advocate that no further action would be taken against the soldiers (see 12 February 2009 ‘Civilian Casualty Incident Contingency Talking Point Pack’, Attachment B background Talking Points’, p 4, Department of Defence, Canberra, dated 7 October 2011). As this case was prosecuted before a ‘military court’ and not before a civilian criminal court, as provided for under the Australian Criminal Code Act 1995 and also as the conduct was not investigated as a war crime as provided for under the Criminal Code, then it would seem that on this occasion Australia failed the ‘complementarity test’. Not that the consequences of this for Australia are all that serious because the conduct involved would not meet the ‘most serious crimes’ requirement of Article 1 so it is very unlikely that the ICC would involve itself in an Article 17(2) argument in any event. However, it would have been very easy for the Commonwealth Director of Public Prosecutions (DPP) to have reviewed a proposed war crimes charge under the Criminal Code 1995 and published his decision not to prosecute the case. The circumstances of this case were such that the soldiers were returning fire in the course of armed combat. There is no evidence that the soldiers were deliberately targeting the civilians. The only live issue was proportionality and without more this would make it a very weak case (Lamp, 2011: 233). Had the DPP published a decision not to pursue the matter, then in view of the independence of his office, Australia would have complied with Article 17(1)(b) and no question of compliance would arise. The case could then have been referred to the Director of Military Prosecutions so she could determine if any disciplinary-type charges under Defence Force Discipline Act 1980 should have been preferred. Canadian Case In R v Semrau [2010] CM 4041, Captain Robert Semrau was charged in 2009 on one count of second degree murder and one count of attempted murder under the Canadian Criminal Code, section 231(7). He was also charged under the National Defence Act 1985, sections 93 and 124 with ‘negligently performing a duty’ and ‘behaving in a disgraceful or cruel

128  Grant Niemann ­ anner’. He was a captain in the Royal Canadian Regiment in Afghanistan, m responsible for training Afghan National Army recruits. At the relevant time, they were conducting operations in Helmand Province, when they were ambushed by the Taliban. After the battle they came upon a wounded enemy soldier who had suffered severe injuries as a result of having both legs severed and with a large gaping wound in the torso. Captain Semrau determined that nothing could be done for the wounded soldier. The Afghan National Army soldiers urged Semrau to let the Taliban insurgent die a painful death. Semrau ordered the Afghan soldiers to leave the area and shortly after two shots were heard. The body of the Taliban insurgent was never recovered although bullet casings identical to those used by Semrau were later recovered from the scene. While the Canadian court found that Semrau had fired the bullets he was not convicted of murder or attempted murder because the body was never recovered. As a consequence he was convicted of the military offence of ‘disgraceful conduct’, demoted in rank and dismissed from the army. Mercy killings pose very particular problems because they involve the killing of an enemy soldier who is hors de combat and thus contrary to the Geneva Convention III Relative to the Treatment of Prisoners of War of 1949. However, while the killing is technically illegal, it is ‘morally justified’ because the perpetrator is trying to spare the victim a painful and slow death. While each mercy killing needs to be analysed on its merits, there are certainly cases where on the battlefield the provision of timely medical assistance and pain relief is not readily available. In these circumstances, where a professional soldier feels pity for the suffering of his opponent and takes steps to alleviate this suffering, a very real issue arises as to whether the soldier should ever be charged for the killing. In the course of the battle itself, it would have been entirely legal for the soldier to have killed his opponent instantly, hence sparing him a painful and protracted death. This is another case where Canadian civilian prosecutors could have appropriately exercised their discretion not to prosecute Captain Semrau for the war crime of killing an enemy combatant who was hors de combat, and no question could have arisen as to whether Canada had complied with its obligations under the Rome Treaty. As it stands, Canada would also seem to have also failed the ‘complementarity test’. British Case In R v Blackmore [2014] EWCA Crim 1029, the accused was deployed in Helmand Province in Afghanistan when their command post came under fire from insurgent enemy forces. An Apache helicopter was called in which fired on the insurgents and quelled the attack. Subsequently the accused and two other marines were sent out to do a ‘battle damage assessment’

Int’l Criminal Law and National Military/Disciplinary Law 129 when they came upon an injured enemy combatant. The accused removed the combatant’s weapons, hence rendering him hors de combat. He then ordered that the injured combatant be taken to a place where they could not be under any British air or ground surveillance. At this point he then shot the enemy combatant in the chest. It is reported that at the time of the killing he said to the victim, quoting from Shakespeare’s Hamlet, ‘Shuffle off this mortal coil, you c—t’. It is then reported that he said to his patrol, ‘Obviously this doesn’t go anywhere fellas. I have just broke the Geneva Convention’ (see RT News, 8November 2013 ‘ISAF in Afghanistan: ­Murder Case, New Torture Evidence, Possible War Crimes’, http.com/news/­ Afghanistan-torture-murder-evidence-397/, at 3). Blackmore was charged by the Service Prosecution Authority with murder, contrary to section 42 of the Armed Forces Act 2006. This section makes it an offence if a person in the armed forces commits an offence when on service which would be a civilian criminal offence of murder or manslaughter in the UK. A military court martial found him guilty of murder and sentenced him to life imprisonment with a minimum term of 10 years (subsequently reduced on appeal to eight years). He was not charged with a war crime and the case proceeded by way of court martial so it would seem that in this case Britain also failed the ‘complementarity test’. Again, under the circumstances, it is hardly likely that the ICC Prosecutor would be interested in reviewing this case before the ICC pursuant to an Article 17(2) application. CONCLUSION

The cases discussed above involve three combatants, engaged in an armed conflict on a battlefield in a foreign country, who failed to respect the protected status of their enemy combatants who were hors de combat and entitled to protection under the Geneva Conventions of 1949. The crimes involved were war crimes, not some domestic murder or manslaughter as might be committed on the backstreets of Sydney, Toronto or London. The relevant law is international humanitarian law, not ordinary domestic criminal law. There seems little doubt that the military prosecutors and the military courts involved were also fully aware of this fact. Characterising the acts of the accused soldiers as ‘ordinary domestic crimes’ instead of the crimes which they were, namely war crimes, constitutes ‘shielding’ (see Prosecutor v Tadic, Decision on the defence motion for interlocutory appeal on jurisdiction (October 1995) Case No IT-94-1-AR 72, at para 98). However, the ‘shielding’ involved is not solely motivated by the desire of their respective states to protect the soldiers themselves from being charged with war crimes. The strong bond between the soldier and the sovereign (Commander in Chief) or state, where the soldier does the ‘bidding’ of the

130  Grant Niemann state, means that if the soldier commits war crimes the state itself becomes tainted by the fact that their soldier has committed a war crime. If the soldier is charged by their state with committing a war crime then this constitutes an admission by the relevant state that they believe their own soldier might be a ‘war criminal’; if the soldier is convicted, this proves it. This admission will never be made lightly, notwithstanding treaty commitments made when ratifying the Rome Treaty, because it would be politically unpopular within their own state, and would bring the state into disrepute in the international community of states (Kelly, 2013). The object and purpose of ‘complementarity’ is that the state parties have agreed to align their laws and the enforcement of international crimes with those of the ICC. By ratifying the Rome Treaty they have partially surrendered their freedom of choice such that they no longer can choose whatever offence or jurisdiction they like when dealing with alleged breaches of international criminal law, especially if they wish to satisfy the ‘complementarity test’. However the realpolitik of the situation is that powerful state parties will continue to ignore their treaty obligations to charge international crimes because the adverse political consequences of doing so are far worse than the remote possibility of being challenged before the ICC. REFERENCES Blumenthall, David and McCormack, Timothy (eds) (2008) The Legacy of Nuremberg: Civilizing Influence or Institutionalised Vengeance (Martinis Nijhoff Publishers). Copelin, Brad (2009) ‘Defending the Indefensible: The Defence of Superior Orders for War Crimes’ [online] 6(1) Australian Army Journal 37–56, http://search.informit. com.au/documentSummary;dn=200907505;res=IELAPA, ISSN: 1448-2843. Cross, M and Williams, S (2010) ‘Recent Developments at the ICC: Prosecutor v Katanga—A Boost for Cooperative Complementarity?’ 10(2) Human Rights Law Review 336. Degenhardt, Teresa (2015) ‘Crime, Justice and the Legitimacy of Military Power in the International Sphere’ 17(2) Punishment and Society 139. Delmas-Marty, M (2006) ‘Interactions between National and International Criminal Law in the Preliminary Phase of Trial at the ICC’ 4 Journal of International Justice 2. Drumbl, M (2003) ‘Towards a Criminology of International Crime’, http://ssrn.com/ abstract_id=411780. du Plessis, Max (2007) ‘South Africa’s Implementation of the ICC Statute’ 5 Journal of International Criminal Justice 460. Gaeta, P (1999) ‘The Defence of Superior Orders’ 10 European Journal of International Law 172. Hobel, Mark WS (2011) ‘“So Vast an Area of Legal Irresponsibility” The Superior Orders Defense and Good Faith Reliance on Advice of Counsel’ 111 Columbia Law Review 574.

Int’l Criminal Law and National Military/Disciplinary Law 131 Kelly, J (2013) ‘Re Civilian Casualty Court Martial: Prosecuting Breaches of International Humanitarian Law Using the Australian Military Justice System’ 37(2) Melbourne University Law Review (advance copy) 2. Lamp, N (2011) ‘Conceptions of War and Paradigms of Compliance: The “New War” Challenge to International Humanitarian Law’ 16(2) Journal of Conflict and Security Law 225. Lanni, Adriaan (2007) ‘The Laws of War in Ancient Greece’ 24 Harvard Law School Research Paper 4, http:/ssrn.com/abstract=1069874. McAuliff, Pedraig (2014) ‘From Watchdog to Workhorse: Explaining the Emergence of the ICC’s Burden Sharing Policy as an Example of Creeping Cosmopolitanism’ 13 Chinese Journal of international law 1. Meron, Theodor (1998) Bloody Constraint: Law and Chivalry in Shakespeare (Oxford, Oxford University Press). Niemann, G (2014) Foundations of International Criminal Law (LexisNexis/ Butterworth). O’Reilly, T (2004/5) ‘Command Responsibility: A Call to Realign the Doctrine with Principles of Individual Accountability and Retributive Justice’ 40(1) Gonzaga Law Review 127. Philippe, Xavier (2006) ‘The Principles of Universal Jurisdiction and Complementarity: How Do the Two Intermesh?’ 88(862) I. International Review of the Red Cross 375. Solis, Gary D (2010) Theory of Armed Conflict: International Humanitarian Law in War (Cambridge, Cambridge University Press). Tallgren, I (2002) ‘The Sensibility and Sense of International Criminal Law’ 13 European Journal of International Law 561.

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7 Techniques of Naturalisation: Crime, Camouflage and Institutional Accounts of Violence in the Military BEN WADHAM

INTRODUCTION

V

IOLENCE AND THE military are inseparable. Militaries cultivate, propagate and manage the capacity for violence among their personnel. The reasoned or reasonable use of violence, as determined by elites and the institutional powers of the time, is predominantly accepted as part of what the military does, at least within the mainstream of society. What happens when this capacity for violence among military personnel is exercised against peers, or condoned as part of training, or expressed in the failure to record, investigate or prosecute violence within the ranks? Does this unreasonable violence mark a soldier as a brigand rather than the ordered disciplined guardian? Are sexual assault, hazing, rape and punitive violence an expression of the dark side of the military or truly the practices of a few? Since the 1970s these traditions and practices of violence have been increasingly exposed and investigated across the militaries of the US, Britain, New Zealand, Canada and Australia. Violence in the military is being addressed with some intensity in some of these nations. This chapter focuses on the Australian experience. The Australian Defence Force (ADF) story of bastardisation and initiation rituals stretches from as far back as 1913 (Moore, 2001: 349) to a recent 2011 review called the DLA Piper Review of allegations of sexual and other abuse in Defence. The Report cites allegations relating to sodomy, rape, and incidents of sexual assault at ADFA [Australian Defence Force Academy] with other cadets looking through the window and other incidents of filming consensual sex and taking photographs. Young sailors who were sodomised were threatened with further like treatment if the incident was reported. Young women had their breasts grabbed. Young men were given ‘regimental’

134  Ben Wadham showers which comprised being scrubbed with a wire brush and often thereafter ‘nuggeted’ which involved having boot polish rubbed on their genitals and anus (Rumble, McKean and Pearce, 2011: 73).

Stories of hazing, bastardisation, and rape (including gang rapes) over a period of decades have emerged from Royal Military College (RMC) and ADFA (the institutions sit side by side), as well as from the military more generally. In 2011 a former cadet wrote of his ongoing trauma from experiencing ‘… a world of bullying and harassment that few outside the defence forces can imagine’ (The Australian, 2011). In 2014 the Defence Abuse Response Taskforce (DART) concluded its business hearing around 3,500 cases of violence within the military across its tenure. In 2011 the ADF, responding to these and many more episodes of misconduct, embarked upon a comprehensive programme of cultural change. Over time, the ADF has acknowledged incidents of military misconduct (including bastardisation, hazing, rape, sexual harassment, and alcohol and drug abuse) and has recognised that while these incidents raised questions about military justice and equity and diversity, its responses failed to adequately account for the cultural determinants. The ADF has usually adopted a range of institutional responses that have camouflaged the cultural ­character of military crime and misconduct (Wadham and Hamilton, 2009; Wadham, 2013). While military misconduct has been persistent and enduring it has largely escaped the attention of criminologists and critical theorists. This chapter draws upon literatures from criminology and the sociology of deviance with insights from critical theory and cultural studies to focus upon the problem of military misconduct. Looking to the literature on the dark side of organisations, and organisational deviance (Merton, 1936; Sutherland, 1983; Cohen, 2013; Vaughan, 1999; Linstead et al, 2014), it is first argued that incidents of military misconduct, far from being the practices of a few bad apples (the standard ADF response until very recently), can be understood as representative of deep structural imperatives within ADF culture itself. In other words, what is considered the pathological, rather than being a departure from the normal, is in fact part of how a military operates successfully as a vehicle for violence (Connor, 2010). This chapter begins with an outline of the Skype scandal as an expression of the tensions that sit within civil society–military–state relations. M ­ ilitary misconduct is then unpacked through the dark side of organisations’ literature. This provides the platform from which to investigate historical ­examples of the bad apples account and to argue that the ADF’s accounts are expressions of their institutional distinction within civil–state–military relations. The chapter culminates in pointing to further theoretical work that can be undertaken through the notion of camouflage as a means of exploring institutional accounts in greater depth.

Techniques of Naturalisation 135 SKYPE AFFAIR: A WATERSHED IN DEFENCE ABUSE

The Skype incident involved seven male cadets and one female colleague from the ADF’s officer training academy and university (ADFA). One male cadet, Daniel McDonald, had liaised with the female cadet to organise a consensual sexual encounter in his room. Daniel informed his friend and colleague, Dylan de Blaquiere, who arranged for a secret broadcasting of the sexual encounter by Skype to a group of cadets, or mates, in an adjacent room. What made this incident distinct from the litany of other cases preceding this one and the way it evolved into the full-blown scandal now known as the Skype Affair were the actions of the female cadet upon discovery of the broadcast. Lacking confidence in the ADFA’s complaints procedures she instead reported the incident to the mainstream media, leading to the incident becoming the subject of national debate. This action brought government, civil society and the military together in tension over the role of the military, the making of the soldier and the culture of the ADF. In hindsight, the female cadet’s concerns about the complaints procedures appear well founded. It was reported that she was subject to bullying by staff and peers for going to the media and that the academy failed to provide her with appropriate institutional support; while the men involved continued their training, she returned home. The impression gained was that her ‘sin’ of going public was considered a far greater wrong than that committed by the male cadets against her. The female cadet was also subject to minor disciplinary charges preceding the incident that, despite her traumatic experience, the ADFA command continued to pursue, rather than postpone. The Minister came out publicly against these events and their organisational context, forcing the Academy Commandant Commodore Bruce Kafer to stand aside while investigations were undertaken into the claims. In response, the defence establishment protested ministerial interference and a public contest over civil–military relations ensued (see Dodd, 2012). Arising from this incident the then Defence Minister, the Honourable Stephen Smith, initiated a series of reviews aimed at appraising the ADF’s organisational culture in the contemporary world. These included inquiries into sexual and other forms of abuse in defence (Rumble, McKean and Pearce, 2011); the use of alcohol (Hamilton, 2011) and social media ­(Patterson, 2011); the management of incidents and complaints (Garrety, 2012); employment pathways for women (McGregor, 2011); and the treatment of women in the ADFA and the ADF (Broderick et al, 2012). The agents and overseers of the reviews included an independent legal firm (DLA Piper); the Human Rights and Equal Opportunity Commission’s (HREOC) Sex Discrimination Commissioner, Elizabeth Broderick; Major General Craig Orme (an infantry officer in a staff position and former Cadet of the

136  Ben Wadham Royal Military College Duntroon); the Inspector General ADF (IGADF); and other consulting agencies. These reviews constituted a wide-ranging and deep appraisal and reform of the ADF. The capstone vision document of the cultural reviews was the Personal Conduct Review. The stated intent of this inquiry was to analyse the causes and consequence of professional conduct and misconduct; describe how these are being currently managed and improved by ADF policies and instruments governing ADF personal conduct; and propose a strategy to ­further enhance the reliability of professional conduct (Orme, 2011: 12).

The reviews cover a range of matters, but the issues of masculine tribalism (Orme, 2011), abuse and prejudice (Rumble, McKean and Pearce, 2011), and the management of complaints predominate (Garrety, 2012). The immediate catalyst for the reviews was the Skype Affair. The Minister had over time demonstrated a growing intolerance of military misconduct, ­having seen other sex scandals such as the HMAS Success investigation (Gyles, 2011) and other episodes of military misconduct unfold during his tenure. Framing Defence Abuse Within Military Culture The anatomy of the military scandal, and the foundations of defence abuse, are uncovered by following the ADF’s discourse and practice. Establishment notions of military governance draw upon the civil–military relations literature. This section outlines this anatomy of military governance as a means of unpacking the literature on the dark side of organisations. One aim is to outline the theoretical foundations of the civil–military relations and dark side of organisations literature and establish its value for understanding militarisms. Civil–military relations are a key structural element of Western liberal democracies (Huntington, 1957; Janowitz, 1964; Feaver, 1996; Feaver and Kohn, 2001). While the civil–military relations literature is normative and uncritical of the structures of state, military and public governance, it also provides a starting point for critically unpacking these relations. Citizens entrust the legitimate use of force to a specialised institution propagating the profession of arms. From that point, a paradox structures the democratic polity: the military are at once the guardians of democratic values and at the same time, the group socialised to and authorised with the capacity to transgress those values. The military offers us not only the security of defence but also an ever-present latent threat to our liberty. The civil–military challenge is to maintain a military with the capacity to achieve any task they are required to do, but with suitable deference to civilian authority. Culturally, this plays out in the tension between valorising military effectiveness and the need to remain connected to mainstream society.

Techniques of Naturalisation 137 Civil–military scholar Samuel Huntington explains: The military institutions of any society are shaped by two forces: a functional imperative stemming from the threats to the society’s security and a societal imperative arising from the social forces, ideologies, and institutions dominant within the society. Military institutions which reflect only social values may be incapable of performing effectively their military function. On the other hand, it may be impossible to contain within society military institutions shaped by purely functional imperatives. (1957: 2).

The idea of military effectiveness is constructed around notions of masculinity, the warrior caste, the profession of arms, controlled aggression and reasonable violence. These ideals are constructed through particular ideals of military identity that stand in opposition to the ideal of the civilian. Wolfendale explains that ‘“the military personality” is developed not just through training and education but through the very nature of the military’s function and needs’ (2007: 128). It is a structured consequence of civil– military relations that military personnel are ‘likely to develop a set of values that are at odds with those that govern the wider society’ (Wolfendale, 2007: 128). The military personality fosters values and attributes that can be highly problematic in daily life, including nationalism, authoritarianism and obedience to authority, as opposed to the values of tolerance, individualism and open dialogue. The military culture is one that prioritises a special view of the soldier—above, better, stronger and more important than the polity. It is the disjuncture between the cultural imperatives of war fighting versus civil–military relationships that leads to the conflict between the political masters of the military and the generals. As a strong culture that rewards conduct that is dysfunctional, such as silence and/or denial and externalising faults, it is surprising that criminological scholars have not focused more attention to the culture of potential criminality that is fostered via particular organisations such as militaries. The work of the military is often opaque. As an institution it sits behind the veil of state business, its operations are often covert, and its culture is gated behind the security of the military base. Civilians disappear into a military organisation and re-emerge as soldiers—and soldiers are different kinds of citizens than civilians. The military has its own justice system, police force and medical service, and military communities are traditionally relatively closed communities. While there is much the military wants us to see, acknowledge and celebrate—those rituals and traditions that reify militarism and galvanise the military principle—there is also much that must remain hidden. This, within a constitutional frame of the separation of powers between state and military, is a source of tension in civil–military relations. Criminologist Lawrence Sherman (1978: xvii) explains that scandals (such as military misconduct) bring social and cultural arrangements into view.

138  Ben Wadham The scandal is not confined to the organisation itself, rather ‘it can encompass all those interests, groups and other organisations that have a stake in the conduct of the organisation in question.’ (1978: 66–67). The Skype Affair began with the violation of a female individual by a group of male individuals but soon became an institutional scandal as leaders and spokespeople articulated their positions within the national media. The Skype incident mobilised relations between civil society, the military and the state. One key source of interaction between different sides in the debate was the notion of individual responsibility and institutional accountability. It was the interaction of these ‘stakeholders’ that manifested in an intense period of institutional review. Consequently, in relations between the state, civil society and the military, the question of trust arises. The capstone of the cultural reviews, the Personal Conduct Review acknowledges this when it explains: A Government that does not trust its military is a government that will be reluctant to give the military the authority it needs to operate effectively. Reputation is also a factor in the extent to which the ADF is regarded as ‘an employer of choice’: a public that does not trust its military is a public that will be reluctant to allow its sons and—particularly—its daughters to serve under arms … In short, reputation and trust are important elements for capability and in success on operations (Orme, 2011: 4).

What public scandals do is disrupt the trust placed in the relevant institutional context (Gamson, 2001; Thompson, 2000; Summers, 2000; Fine, 1997; Sherman, 1978) by bringing the ‘dark side’ into view. The ADF is trusted as an expression of the Australian ethos and character, which can be undermined by military practices that bring that character into disrepute. In general, the trust imparted to the ADF is evident in their authority to direct and manage activities formative of the ‘light side’ of the military, including history, celebratory/mourning rituals (eg ANZAC day), nation, martial virtues, disaster relief, border control and more recently the ‘humanitarian role’. Given that the ADF is structurally and geographically distinct from civilian society, the manner in which it remains accountable to broader social and cultural principles and values is important. DEFINING THE DARK SIDE: CAMOUFLAGING BRUTALITY

A defining feature of the military is the licence and training to use violence. Violence in combat is ideally authorised, reasoned, rationalised and legitimate, which can be framed as reasonable violence (in an ideal sense). But militaries also possess the potential for unreasonable violence (see Card, 2002; Razack, 2004). This can take the form of war crimes (as, for example, in Somalia or the representation of the Islamic State), or sexual violation

Techniques of Naturalisation 139 of local women by peacekeepers (Higate, 2007). This can be described as externally directed violence and is well covered in the literature. Conversely, the focus of this chapter is the sexual harassment, bastardisation, sexual violation or brutality inflicted by defence force personnel on other defence force personnel and, most importantly, how militaries address this. The significance of internally directed misconduct is that it continuous with, rather than being a departure from, the norms of military culture. The following sections pursue these continuities as they are seen to occur in the case of ADF responses to misconduct, especially those that seek to conserve the ‘normal’ through presenting misconduct as an aberration, and subsequent moves to acknowledge this. Over the past two decades organisation and management studies have increasingly engaged with the dark side of organisational cultures. Until recently the focus had remained on the functional and pro-social aspects of behaviour at the expense of understanding what sociologist of deviance Robert Merton (1936), calls the ‘unanticipated consequences of purposive social action’ (1936: 895). In a similar fashion Vaughan asserts: ‘any system of action inevitably generates secondary consequences that run counter to its objectives’ (1999: 273), here invoking Durkheim’s argument that: ‘the pathological is an inextricable part of every social system because the conditions of the normal are the preconditions of the pathological’ ­(Durkheim ([1895] 1966: 47–75 cited in Vaughan, 1999: 274). But is violence within the military pathological? Is defence abuse entirely unexpected? Research on corporate crime has for some time now been making the observation that business practices that violate laws and social norms may often, contemporaneously, be behaviours consistent with conventional organisational practices and expectations in competitive commercial environments (Braithwaite, 1985). Linstead et al (2014: 166) argue that in the last two decades scholars have come to understand that the dark side is ‘… not a dark out-side, a phenomenon “out there” that impinges upon organisational action, but a dark interior to be found within organisational boundaries and practice’. However, despite this recognition of the dark side, too often ‘behaviours comprising the dark side of organisations have not been claimed as central’ (Vaughan, 1999: 72). For the ADF, these suboptimal outcomes are the threat to peers—both male and female—from hostile group dynamics (eg bastardisation) and the cultural, organisational, regulatory and administrative failure to manage diversity within the organisation. But are these practices anomalies, pathologies or an inherent potential of militarism and martialisation? There are several interrelated ways the term ‘dark side’ may be applied to the analysis of military misconduct. First, it can refer to the acts of hazing, bastardisation or sexual harassment themselves. These are ‘dark’ in the sense of being ignominious, perceived as being connected to the baser, animalistic aspects of the human condition, once a normal part of everyday

140  Ben Wadham life but now ostensibly under control as a consequence of the ‘­civilising ­process’. They represent a ‘side’ of defence force culture in that, while being illegal or officially disapproved of, can be seen to be continuous with ‘normal’ military culture (hierarchy, masculinity etc) up to the point where they may even supplement the normal, serving as initiation/bonding rituals, marking entry into the culture. Second, the term ‘dark side’ might be applied to those aspects of military culture that work to keep events of misconduct ‘in the dark’, preventing these from coming to the attention of those in command and, beyond this, the public and the state. In the ADF, for example, one principal unwritten code is keeping things in house; to speak out is to ‘go jack’ on your mates. This code of silence is a well-established cultural component of shadowy organisations. In a significant break with past ADF practice, the Personal Conduct Review acknowledges the importance of culture in accounting for military misconduct, and hence initiatives aimed at addressing it. This is couched in the language of ‘tribalism’: The military has been described as a ‘tight’ culture in which shared identity, clear norms and role requirements, strong sanctions for deviations, and social stratification are exercised in a predominantly male culture. Social stratification coupled with a male dominated cultural model tends to create various manifestations of ‘insiders’ and ‘outsiders’. ‘Insiders’ are those who are socially dominant and conform to the cultural ideal, while ‘outsiders’ are those whose inclusion is perceived as posing cultural risks. ‘Outsiders’ are often cultural minorities, such as women, ethnic members or those with a non-mainstream sexual persuasion. The intersection of flaws in a masculine military culture, together with instances of ­alcohol-fueled inhibition [sic], has sometimes led to instances of unacceptable behaviour in the ADF (Orme, 2011: 4).

Here military misconduct is clearly recognised as bound up with organisational culture, and described in terms of the institutional cultural make-up. What can be described in terms of the tenets of martial masculinity? The negative implications for cultural diversity are clear in terms of its effects upon others and the challenges for enduring organisational sustainability in a multicultural society. Nonetheless, there remains a sense that the tribalism of which the review speaks is an aberration of institutional culture— pathology of the group and its individuals. This reference to dark and light sides is important in that it helps us to understand that unreasonable violence is coterminous with the reasoned violence of the military. However, the light and dark side is a dialectical notion, one that retains an artificial distinction between the optimal and the suboptimal, and renders the dark side as something ignored and reparable. But is unreasonable violence really able to be fixed, is this brutalisation not simply a dark side but a foundational aspect of militarism? Rather than the episodic eruption of violence in the ranks has defence abuse been

Techniques of Naturalisation 141 a traditional staple of military cultural practice? Is institutional denial an expression of individual denial or an expression of the structural inability of military subjects to see the conditions of their own making? A short return to the criminological roots of the dark side is important to reaffirm the development of the theoretical idea of camouflage. The following section looks to institutional accounts of violence within the military to do this. DENIAL OF INJURY: DECOUPLING MISCONDUCT FROM THE MILITARY

When the ADFA Skype incident made the news, the Chief of Defence (CDF), Air Chief Marshall Angus Houston, claimed the event was an isolated ­incident: ‘Are we perfect? No we’re not … We have pockets in the organisation where there are problems in some of these areas, particularly the misuse of alcohol … (But) I think they’re the exception rather than the rule’ (ABC, 2011). He supported this by explaining that with 50,000 staff members under the age of 25, it was inevitable there would be incidents from time to time. The retired Governor General, Major General Jeffrey, claimed: ‘I don’t think it’s a widespread culture at all. I think that these are isolated incidents that must be dealt with quickly, but I remain very proud of our young servicemen and women and the job they are doing’ (Towell et al, 2011). These two quotes are illustrative of a history of accounts that adopt the same principle of ‘exception rather than the rule’. For example, in 1983 after the Officers and Not So Gentlemen scandal covering claims of abuse, bastardisation and rituals of degradation at Duntroon Royal Military College, Major General Coates, the then commandant, explained to the Melbourne Sun that bastardisation at the college was not of a ‘general or systemic’ nature. Major General Coates assured the Australian public that he was ‘certain’ of this (see Andrews and Connor, 2013). In May 1992, amid more allegations of abuse and bastardisation at the ADFA, Brigadier Adrian D’Hage explained in Melbourne’s The Age that [o]nce or twice a year we get allegations at the various colleges of unfair treatment by senior officers. We spend a lot of time and taxpayers money investigating these to discover they are unfounded. They usually come from disgruntled cadets who don’t meet the high standards that are set and don’t want to go home to mum and dad with a failure … (Easterbrook, 1992: 17).

Brigadier D’Hage explained that bastardisation was isolated and most of the claims were of ‘the rough and tumble initiation practices that also occurred at universities’ (Epis, 1992: 29). Thus, for the greater part of its history, the ADF has denied that these practices are an inherent part of the institutional culture (see Wadham, 2013: 230). These divergent values came into focus during the Skype Affair,

142  Ben Wadham which is emblematic of a long history of scandals and reviews into military misconduct. Incidents over the years have been the drivers for reviews into bastardisation and brutality (Fox, 1970), sexual harassment, (Senate Standing Committee on Foreign Affairs, Defence and Trade (DFAT), 1994; Grey, 1998), unjust dismissals or institutional opprobrium (Daley, 2009; McKenzie, 2008; Allard, 2005) or sexual perversion (Davidson, 2014; ­Sutton, 2013). The DLA Piper Review into physical, sexual and other abuse revealed cases of paedophilia over five decades as well the rape, harassment and brutalisation of men and women across those years. This ‘bad apples’ disposition to institutional violence is well characterised by the work of Punch (2003) but demonstrates a longer criminological history. Stanley Cohen describes these kinds of accounts as institutional denial (2001). According to Cohen there are three key forms of institutional denial: literal denial (eg ‘hazing does not happen’); interpretive denial, in which raw facts are conceded but the meaning is disputed (for example, hazing happens, but it isn’t brutalisation—it is team building and hardship training); and implicatory denial: what has happened is necessary, justified by some higher purpose (for example, soldiers need to be hard, not soft, unconditional loyalty to the group is vital to the cohesiveness necessary for effective combat units and this takes precedence over individual grievances) (2001: 7–8; see also Evans, 2013). Collective denials are produced by individual subjects within institutional contexts, bound by codes of behaviour. Among the general ADF personnel, collective denial may be the result of traditions of loyalty to one’s group, for example, as given expression in the code of ‘not going jack’ (Connor, 2007). The extent to which this manifests at the level of command is less clear, as is the extent to which these denials entail outright deceit, whitewash, spin, manipulation, fraud or cover-up which require further investigation. Cohen himself (2001: 144–45) cautions against reaching too quickly for facile accounts of the motivations behind cases of collective denial, these being complicated phenomena. In the case of the ADF command, one could readily envisage a gradient of possible motives, ranging from the most cynical or functionally myopic view of organisational expedience, fear for one’s reputation or vocational future (given misconduct may have occurred on one’s watch), through to misguided loyalty or the emotional/identity commitments made to the ADF on the part of career officers. Cohen explains that, although looking at young offenders, the question of denial is further explored through attempts to neutralise responsibility of the offender. Sykes and Matza (1957: 667–69) identify five techniques of neutralisation: denial of responsibility, denial of injury, denial of the victim, condemnation of the condemners, and the appeal to higher loyalties. These are basically strategies that attempt to redistribute blame, dehumanise victims and misrepresent consequences. Within criminology and the sociology of deviance this model has been most commonly applied to individuals and

Techniques of Naturalisation 143 groups, and in particular individuals and groups located and acting outside the margins of conventional society—namely those deemed delinquent or criminal. As Topalli (2006: 475) argues, for many of these offenders ‘guilt is not an issue at all because their crimes are not only considered acceptable, but attractive and desirable’ in the context of the sub-cultures of which they are a part. The military, however, is neither an individual nor group, nor is it marginal to society. But as an institution populated and run by individuals (eg Chief of Army) and groups (eg army, navy) when things undermine its legitimacy, the institutional leaders respond, usually in ways that minimise institutional responsibility. To what extent is violence in the military an experienced and vibrant aspect of military service? This question is more clearly articulated when we look at how the traditions of fourth-class training, hazing and bastardisation are celebrated, protected and on occasion argued as necessary for the reproduction of the proficient soldier. The few bad apples account entails a denial of responsibility. Here the transgressor of a given social norm claims that the act was an accident, or was not their fault. Often that person sees herself or himself as a victim rather than as a perpetrator. From this perspective, the Skype Affair was not to be viewed as a cultural artefact of ADFA, or the ADF, but something that could happen in any number of places inhabited by young people. The Chief of Defence Air Marshall Angus Houston explained: If you draw comparisons against similar institutions—I am talking about university campuses—I think the number of incidents of this kind is less at ADFA than any other campus in the country. Having said that we have (things in) common with a lot of those institutions. This generation at universities tends to work very hard, and then all of them, when they go out at weekends; they tend to … indulge in what I call binge drinking. (Snow and Oakes, 2011).

The ADF, and defence establishment more generally, argue that the ADF is drawn from, and is reflective of, broader society. In this move of mimicry, it is argued that just as there is racism, sexism, sexual misconduct or bullying in the broader society, so those elements find their way into the ADF. Civilians bring those values with them when they enter the institution. Hence, it is argued that the incident is not reflective of a cultural disposition of the institution, but the improper conduct of personnel who are acting contrary to organisational values. If anything, the ADF, with its reputation sullied, considers itself as much a victim as anyone. Former Chief of Army, General Peter Leahy sums this up well: Members of the press and other commentators should reconsider their unwarranted insinuation that this is ‘defence culture’. The seven individuals involved have been at ADFA for barely two months [10 weeks in fact]. You don’t learn this sort of culture in that period of time. You bring it with you from your home, your school and the community. Australia as a whole is struggling with actions such as sexting, binge drinking and a general loss of the meaning of privacy, not just ADFA (Leahy, 2011).

144  Ben Wadham As indicated elsewhere, complaints in the early 1990s were dismissed as coming ‘from disgruntled cadets who don’t meet the high standards that are set and don’t want to go home to mum and dad with a failure’, and, it will be recalled, ADFA made it known that the female cadet at the centre of the Skype Affair was subject to disciplinary action, thereby casting a shadow over her character. Here we find not just a condemnation of condemner but also, if not a denial, then a diminution of injury and victim. Along with Cohen’s (2001) insights on denial the criminological theories provide a basis for mapping the ADF’s ‘techniques of naturalization’. What is of further interest, however, is the way ADF accounts not only deny that military misconduct might be continuous with ADF culture (the few bad apples account), but also work to finesse any differences between military and civil society cultures. The deviancy literature in this sense is a pathway to further theoretical development of the dynamics of accountability and obligation, as well as the ingrained logics of violence that characterise martial and military identities and collectivities. A key argument is that camouflage, which deals with light and dark and the visible and invisible, is a more nuanced way of making sense of the dark and light sides of militarism. ON CAMOUFLAGE: AN INITIAL OUTLINE

Depending on the source consulted, the French word camoufler means to ‘conceal, cover up, disguise’, to ‘put on makeup’, or to ‘blow smoke’ (to disguise oneself for illicit purposes). It can be traced back to a sixteenthcentury French slang word camouflet meaning ‘a practical joke’. In this initial description we can see that this notion is characterised by a kind of double-play between the visible and the invisible, the dark and the light, the distorted and the clear, or the parts and the whole. Camouflage is a useful notion in that it shares the dualistic character of the military in many societies, expressing relations of presence and absence and reasonable and unreasonable violence. Whatever is camouflaged is present, but its presence is clouded, distorted or blended. Camouflage uses different technologies to achieve cover. Dazzle is the disruption of that whole through the distortion of the elements of a totality, or blending forces the subsumption of difference into the totality. Blending, as a human practice, is mimicked from the ‘natural’ world. Abbot H Thayer, a camoufleur and portrait painter, looked to the natural setting to develop his notions of camouflage (Behrens, 2002). He focused, in particular, on the ways that animals conceal themselves from predators. Countershading enables a bird or animal in the outdoors to fade into its background by the use of different colouring to disrupt the normal reflections of light and shade. Artists are aware of this phenomenon and often simulate overhead

Techniques of Naturalisation 145 lighting in the studio to create shading on an object in an attempt to create the illusion of solidity on a flat surface. This brings the subject into relief and makes an object discernible. Shading the lower part of the object with a darker colour, and progressively lightening the colour towards the top, achieves this. Thayer also observed ‘mimicry’ where the creature imitates its surroundings. Military camoufleurs came up with a range of ingenious ways to make an object appear part of the surrounding terrain. While Thayer acknowledged the importance of figure–ground blending he was one of the first to introduce the idea of ‘disruptive colouration’, where the surface continuity is broken up, thus confusing the viewer. This was further developed by Naval Lieutenant Norman Wilkinson (designer and painter) and used effectively to protect ships from submarines and became known as ‘dazzle’ camouflage. As Behrens explains, ‘more than concealment camouflage is eliminating a boundary’ (2002: 182). Camouflage is principally about generating misrecognition. Misrecognition or more specifically, méconnaissance, is a notion that Bourdieu (1977: 6) uses to describe the ways in which social realities are concealed or masked. Mahar et al explain: [P]articipants do not conceal a practice by dressing it up as something else (in the sense of disguising it), but rather render it invisible through a displacement of understanding and a reconstrual as part of other aspects of the habitus ‘that go without saying’ (1990: 19).

This is a reference to a process of naturalisation or what Codd (1990: 151) describes as essentialism, the rendering of something as taken-for-granted, natural or without alternative. We see this most forcefully in the standpoint that there is no viable and accepted alternative to militarism in Western liberal democracies. Camouflage illuminates the various technologies of vision, representation, concealment and distraction that are expressions of that subjectivity. Camouflage in the military context is deliberate, an accepted art and science that aims to give the soldier ascendency in any military interaction. ­Camouflage is the science of becoming naturalised, or denaturalised in ways to challenge perception of an object. By describing the neutralisation of misconduct as naturalisation, the gaze is focused on the institution as a whole and its relations with civil society and the state within a global order of militarism and tribalism. The technologies of military accounts that camouflage the violent potential of military violence include mimicry: arguing that the ADF is representative of broader society and other institutions; blending: other groups and institutions have the same problems; countershading: proponents of a military culture thesis are unreasonable critics; dazzle: the ADF are hardworking honourable people; and pathologisation: there are merely pockets of trouble.

146  Ben Wadham Homi Bhabha (1994) explains mimicry in terms of colonial–colonised relations. I argue that this can be used to explain civil–military relations, a set of relations where the state and military operate as distinct fraternities of men articulating the national interest using a feminised civil society as their intermediary. The military must mimic civil society—the community that it serves—in terms of values, norms and culture. Yet it is profoundly distinct—authoritarian, almost exclusively male, hegemonically masculine, white, nationalist and heteronormative. The military is a wolf in sheep’s clothing, or a snake in the grass that speaks in ‘a tongue that is forked’. The military produces a mimetic representation that ‘emerges as one of the most elusive and effective strategies of [military] power and knowledge’ (Bhabha, 1994: 122). Camouflage does not pathologise, set apart or dislocate. Camouflage ­conceives of social action as expressive of the collective disposition or character. Bhabha cites Lacan to explain that ‘The effect of mimicry is camouflage … It is not a question of harmonising with the background, but being against a mottled background, of becoming mottled—exactly like the technique of camouflage practiced in human warfare’ (1994: 121). The ‘bad apples’ are organic to the institution nested within institutional cultures of violence. Unreasonable violence is not an aberration but a formative practice (ie hazing) and as the reviews outline, the salient practices of failing to report, record and prosecute defence abuse are germane to the military disposition. The concept of camouflage draws us into the relations of identity, subjectivity and the capacity for vision and awareness from the military subject position. This is perhaps best understood through the optic of cultural criminology (Ferrell et al, 2008). Critical military studies also provide the field for such investigations. CONCLUSION

A marked response to the Skype Affair and the subsequent reviews was the recognition that military culture was implicated in military misconduct and its management. The Personal Conduct Review explains that culture must considered in order to ‘address the problem with sufficient rigour’ (Orme, 2011: 16). Culture obliges the ADF to take responsibility for what is and has been an enduring problem. But how far and to what extent can a military recognise the structural and subjective conditions placed upon the institution and its people? And to what extent can the ADF afford to de-camouflage itself, or even possibly come to terms with the real military subject? To what extent can this authoritarian institution foster a liberal community within itself? Critical criminology, in conjunction with the insights of critical theory and cultural studies, has much to offer the field of critical military studies.

Techniques of Naturalisation 147 Just as similar work on policing has developed into a body of established research and literature, there are opportunities to apply this work to the military. Criminology of the military extends beyond institutional accounts or military misconduct to ask what are the historical, cultural antecedents of violence. The ADF is an almost exclusively white male institution that provides an opportunity for understanding the issue of men and crime. As a total institution with its own military justice system, investigative services and internal mechanism of incident and complain management, the military provides opportunities for exploring the relations of regulation as much as transgression. A critical criminology of the military is an opportunity to bring the military out of camouflage, into the light, and place it under scrutiny. REFERENCES ABC News (2011) ‘Smith orders review of Defence Culture’, 11 April, http://www. abc.net.au/news/stories/2011/04/11/3188096.htm. Allard, T (2005) ‘System that Failed a Top Gun, The Sydney Morning ­Herald, www.smh.com.au/news/National/The-system-that-failed-a-topgun/2005/ 04/18/1113676706563.html. Andrews, J and Connor, JM (2013) ‘The Military, Masculinity and the Media: The 1983 Duntroon Bastardisation Scandal’ presented at Reflections, Intersections and Aspirations 50 years of Australian Sociology, Monash University, 25–28 November. Behrens, RR (2002) False Colors: Art, Design, and Modern Camouflage (Cedar Falls, Bobolink Books). Bhabha, HK (1994) The Location of Culture (London: Psychology Press). Bourdieu, P (1977) Outline of a Theory of Practice, trans Richard Nice (Cambridge, Cambridge University Press). Braithwaite, J (1985) ‘White Collar Crime’ Annual Review of Sociology 1–25. Broderick, E, Baird, E, Mostyn, S, Ney, M and Powell, D (2012) Review into the Treatment of Women in the Australian Defence Force (ACT, DoD). Card, C (2002) The Atrocity Paradigm: A Theory of Evil (Oxford, Oxford University Press). Codd, J (1990) ‘Making Distinctions: The Eye of the Beholder’ in Richard Harker, Cheleen Mahar and Chris Wilkes (eds), An Introduction to the Work of Pierre Bourdieu: The Practice of Theory (London, Macmillan). Cohen, S (2001) Folk Devils and Moral Panics: The Creation of the Mods and ­Rockers (London, Psychology Press). Cohen, S (2013) States of Denial: Knowing about Atrocities and Suffering (New York: John Wiley and Sons). Connor, J (2007) The Sociology of Loyalty (Springer, New York). Connor, J. (2010) ‘Military Loyalty, A Functional Vice’ 29(3) Criminal Justice Ethics 278–90.

148  Ben Wadham Daley, P (2009) ‘No defence for this prosecution’, The Sydney Morning Herald, www.smh.com.au/federal-politics/political-opinion/no-defence-for-this-prosecution-20090621-csfy.html. Davidson, H (2014) ‘“Jedi Council” sex ring: 171 Australian Defence Force staff disciplined’, The Guardian, www.theguardian.com/world/2014/aug/07/jedi-councilsex-ring-171-australian-defence-force-staff-disciplined. Department of Foreign Affairs and Trade (DAFT) (1994) Sexual Harrassment in the ADF (Canberra, AGPS). Dodd, M (2012) ‘Senate push for Stephen Smith to apologise to Defence Force Academy chief Kafer fails’, The Australian, www.theaustralian.com. au/national-affairs/defence/senate-push-for-stephen-smith-to-apologise-todefence-force-academy-chief-kafer-fails/story-e6frg8yo-1226307478727. Easterbrook M (1992) ‘Investigation Starts Today on Claims of Bastardisation’, The Age, 4 May, 17. Epis, M (1992) ‘Probe on Army Sex Claims’, Herald Sun, 4 May, 29. Evans, R 2013. ‘Hazing in the ADF: a Culture of Denial?’ X(3) Australian Army Journal 113–27. Feaver, PD (1996) ‘The Civil-Military Problematique: Huntington, Janowitz, and the Question of Civilian Control’ 23(2) Armed Forces and Society 149–78. Feaver, PD and Kohn, R (2001) Soldiers and Civilians: The Civil Military Gap and American National Security, BSCIA, Massachusetts (Cambridge, MIT Press). Ferrell, J, Hayward, K and Young, J (2008) Cultural Criminology: An Invitation (London, Sage). Fine, GA (1997) ‘Scandal, Social Conditions, and the creation of Public Attention: Fatty Arbuckle and the “Problem of Hollywood”’ 44 Social Problems 297–321. Fox, RW (1970) Report of the Committee of Enquiry Into the Royal Military ­College (ACT, R.M.C.). Gamson, J (2001) ‘Normal Sins: Sex Scandal Narratives as Institutional Morality Tales 48(2) Social Problems 185–205. Garrety, K (2012) Review of the Management of Incidents and Complaints in Defence including Civil and Military Jurisdiction (DoD, ACT). Grey, B (1998) Report of the Review into Policies and Practices to Deal with ­Harassment and Sexual offences (DEO, ACT). Gyles, R (2011) HMAS Success Commission of Inquiry (COA, ACT). Hamilton, M (2011) The Use of Alcohol in the Australian Defence Force (DoD, ACT). Harker, R, Mahar, C and Wilkes, C (eds), An Introduction to the Work of Pierre Bourdieu: The Practice of Theory (London, Palgrave). Higate, P (2007) ‘Peacekeepers, Masculinities, and Sexual Exploitation’ 10(1) Men and Masculinities 99–119. Huntington, SP (1957) The Soldier and the State: The Theory and Politics of Civil– Military Relations (Cambridge, Harvard University Press). Janowitz, M (1964) The Professional Soldier: A Social And Political Portrait (New York, Free Press). Leahy, P (2011) ‘Get Facts on Scandal before Firing Begins’, The West ­Australian, http://au.news.yahoo.com/thewest/opinion/post//blog/theburningissue/ post/1830/.

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150  Ben Wadham Vaughan, D (1999) ‘The Dark Side of Organizations: Mistake, Misconduct, and Disaster’ Annual Review of Sociology 271–305. Wadham, B (2013) ‘Brotherhood: Homosociality, Totality and Military Subjectivity’ 28(76) Australian Feminist Studies 212–35. Wadham, B and Hamilton, AR (2009) ‘Camouflage: How the Visual Arts and Sociology Make Sense of the Military’ in Stewart Lockie et al (eds), The Future of Sociology. Proceedings of the Australian Sociological Association Conference 2009, 1–14, CD-Rom (Canberra ACT: Australian Sociological Association). Wolfendale, J (2007) Torture and the Military Profession (London, Palgrave).

8 Perverse Penalities: Towards a Penology of the Military MARK HALSEY AND ANDREW GOLDSMITH

INTRODUCTION

T

HIS CHAPTER EXPLORES the concept of penality in the context of the United States (US) military and particularly since the beginning of the US involvement in Iraq. It focuses specifically on the overlap between two major ‘sectors’—the military industrial complex (MIC) and the prison industrial complex (PIC). Our central argument is that there is a problematic—more specifically, perverse—alliance between these sectors and that the nature of this alliance is central to understanding how the practice of penality unfolds in times of war and military conflict. We are especially interested in continuities as well as discontinuities with penal practice in domestic settings. In contrast to David Garland’s (2013: 494) contention that ‘The state’s m ­ ilitary power … [is] unlikely to be directly relevant to penal policy’, we argue that military power has at its core a retributive element, notwithstanding its involvements also include nation building and/or peacekeeping operations. This can most starkly be seen in the abhorrent events occurring in Iraq at Abu Ghraib, but also in the mistreatment of prisoners at Guantanamo Bay and historically in the ferocity of the actions of American soldiers involved in the My Lai massacre in Vietnam in 1968. In building this argument, we commence with the question of what ­penality looks like in the US military context and then move towards discussion of the uncomfortable and perverse overlap between the MIC and PIC. The manifest and latent functions of this perversity are also examined. In exploring the idea of military penality, we have chosen to focus upon the links between domestic civilian penal practice and the operations of military forces offshore, rather than examining domestic military prisons or comparing them with civilian prisons. Penality has been defined as ‘the whole of the penal complex, including its laws, sanctions, institutions, and practices and its discourses, s­ymbols, ­rituals, and performances’ (Garland, 2013: 476, note 2). Penality is not

152  Mark Halsey and Andrew Goldsmith simply reducible, therefore, to a ‘penal system’ or to ‘punishment’ per se. Instead, penality maps onto materialist and expressive factors. It regulates bodies (against their will) and results, ineluctably, in an exchange of symbolic values regarding the cultural appropriateness of such regulation and the tools brought to bear to achieve compliance. Having said this, it would be remiss to construe retribution as marginal or secondary to understanding the nature of military penality. Indeed, the trope of retributivism was invoked well before US troops hit the ground in Iraq in late 2001. As Michelle Brown (2005: 981) writes: Retributive frames of punishment marked the contours of the war on terror from the beginning, as evidenced when President Bush assured the American p ­ ublic and the world in the hours after the events of September 11: ‘Make no mistake: The United States will hunt down and punish those responsible for these cowardly acts’.

Penality, of course, need not involve perversity. But from the practice of strip-searching to turning a blind eye to organised beatings or sexual assaults, there has long been a connection between punishment and acts of humiliation or extreme depravity. The Oxford Online Dictionary defines perversity as the ‘deliberate and obstinate desire to behave in a way that is unreasonable or unacceptable’ with sexual perversity akin to ‘an evil life dedicated to perverse pleasure’.1 The concept often also refers to conduct that is counterproductive or that flies in the face of contrary evidence, hence the notion in common law of perverse verdicts. In the sense we shall use the term, it refers to the deliberate pursuit of unreasonable and illegal tactics in ways that are counterproductive and diminish the legitimacy of those approving of or engaged in such tactics. Perversity in the context of the Iraq and Afghanistan conflicts reared its head on countless occasions, and it did so beyond as well as within carceral settings. Ex-marine Bryan Casler, a US Iraq veteran, told of his torrid experiences saying, ‘I saw marines defecate into MRE [meals ready to eat] bags and throw them at children on the side of the road’ (Casler, 2008). In 2010 Private Andrew Holmes shot and killed an unarmed Afghani teenager and severed one of the victim’s fingers to keep as a trophy (RT, 2011). And in 2012 a video emerged showing a group of marines urinating on the corpses of Taliban fighters. One perpetrator was recorded to say, ‘Have a great day, buddy’, while another of the soldiers reputedly remarked, ‘Golden, like a shower’ (McGreal, 2012). These events occur in complex and undoubtedly immensely stressful circumstances not immediately (or ever entirely) fathomable by those ‘back home’ (academic commentators included). However, it is essential to unearth something of the cultural logics and personal proclivities that drive

1 www.oxforddictionaries.com/definition/english/perverse.

Perverse Penalities: Towards a Penology of the Military 153 such abuses and perverse behaviour. In an attempt to do so, we shall make and expand upon four points: 1. Military penality, while often understood to be primarily focused on ‘intelligence’ gathering, is dominated by notions of punishment including vengeance. 2. Features of war-time bureaucratic arrangements include status degradation, long recognised as a feature of Western criminal justice processes. In war time such manifestations of penality often take a dramatic or more extreme form. 3. Military penality in the US instance draws in large measure upon personnel from conservative, authoritarian, racist and homophobic ­ ­sectors of American society who are socialised to accept ‘Othering’ myths (such as prisoners are fundamentally distinct from law-abiding citizens and that residents of Muslim countries are our enemy, etc). 4. Various intersections and overlaps exist at the organisational and structural level between what we will call the prison industrial and MICs.

INTELLIGENCE AND RETRIBUTION

The pursuit of intelligence in ‘hot’ military conflicts, while a perfectly understandable and logical goal in the abstract, has led in many instances to abuses of the rights of enemy detainees, including the contravention of military law and international conventions on the use of torture. Those wedded to the rightness of the cause despite the abuses perpetrated by military personnel are tempted to explain these actions as aberrations, as unintentional consequences of a system that, while sparse, has at its core the commitment to human decency and the upholding of a duty of care towards those captured. This, though, is far from reality. Hooks and Mosher (2005: 1628) remark: As Abu Ghraib, Guantanamo and other well-documented cases in Iraq and Afghanistan reveal, the U.S. military violated established international and domestic conventions and policies. But these abuses did not occur because the chain of command failed. On the contrary, these abuses occurred because a highly rationalised system of interrogation is in place—and (in instrumentally rational fashion) this system of interrogation places a higher value on information extraction than it does on human rights (emphasis in original).

The belief that detainees in war or terrorism-related conflicts might hold critical information affecting the safety and security of others, including the military personnel engaged in the conflict, is clearly a strong driver of how military penality is practised in the field of conflict. Systemic commitments of this kind driven by fear or ignorance can lead to perverse outcomes. In the highly secretive setting of Guantanamo Bay, interrogators doggedly refused to realise that prisoners held there were not able to provide much, if any,

154  Mark Halsey and Andrew Goldsmith intelligence—they simply did not know of the events (past or planned) that US troops were asking them to be forthright about. Rather than leading officials to abandon their interrogation efforts (and techniques such as water-boarding) the effect was to harden their resolve to forcibly extract the strategic truths believed to reside deep and obstinately within the psyche of the enemy. Ultimately, ‘even as the CIA was deciding that most of the prisoners at Guantanamo didn’t have much to say, Pentagon officials were getting frustrated with how little the detainees were saying’ (Corrie ­Hegland quoted in Gregory, 2007: 215). New methods were needed to get the truth from those President Bush labelled ‘well-trained liars’ (see Gregory, 2007: 232, note 33). In 2003 Secretary of Defense Rumsfeld ordered General Geoffrey Miller to transfer out of Guantanamo Bay to Abu Ghraib and to ‘GITMOise the situation’ (Ghosts of Abu Ghraib). A close examination of the circumstances in which abusive and unlawful military interrogations took place implicates, though, a broader practice of penality. While there is ongoing debate surrounding the efficacy of torture-based interrogations in terms of the reliability of the information extracted, as well as discussions regarding the legality and morality of conducting military operations in this way, we need to recognise what has been termed the ‘fine line between interrogation and retribution’ (Carlsmith and Sood, 2009). Based on a US survey of 246 adults, Carlsmith and Sood found that respondents’ endorsement of harsh interrogations depended not only on their belief concerning the likelihood of the detainee having useful knowledge, but also on whether he had a history of committing v­ iolent acts (­Carlsmith and Sood, 2009). In other words, detainees believed to have ‘poor’ moral character were thought to warrant punishment during the interrogation process as well as subsequently. We see here very clearly the influence of retributive thinking: interrogations as occasions for deserved punishment as well as intelligence collection. These findings accord with some work undertaken to explain why popular support for torture is maintained despite growing evidence of its limited efficacy. Janoff-Bulman (2007) has argued that ‘the more destructive the enemy, the more likely the aim of obtaining reliable information will be tainted by a different goal—that of revenge and punishment’ (2007: 433). This perverse pursuit speaks of the strength of vengeful attitudes among those responsible for military interrogations and detention. It also conceivably is indicative of the uncertainty surrounding many military interrogations in hot conflicts—the existential kind of uncertainty of those directly involved at the time, in terms of how much danger they are facing, but also the longer-term uncertainty of whether detainees may escape custody or fail to be held accountable for their presumed actions due to some other circumstance of the conflict. In circumstances where officials do not believe that justice will be achieved, the temptation to act carelessly and even vengefully towards those in custody is enabled and even nurtured

Perverse Penalities: Towards a Penology of the Military 155 by the extreme circumstances. In reference to the situation Lynndie England faced in Abu Ghraib, her interviewer, Tara McKelvey, observed: England arrived in the thick of intense fighting. Insurgents launched mortar attacks at night. During the day, snipers trained their weapons on guards. In between, prisoners threatened to riot, walking in circles, chanting in protest. E ­ ­ ngland worked in a processing office. She had no real business being in Tier 1A, where Graner worked, the wing of the prison where suspected insurgents were held. But she’d slip over there at 10 p.m. and wait for … Graner in his cot. ‘In situations like Iraq, the first thing some young female soldiers look for is a protector—a senior male, let’s say, who’s sitting in a vehicle with her,’ says [England’s former boss] Karpinski (McKelvey, 2006).

In these conditions, whether by default or design, processes of interrogation and detention can themselves become the punishment (cf Feeley, 1979). BUREAUCRACY AND ABUSE

The perverse effects of war, we have already suggested, require a detailed understanding of the social ecology of the settings in which military personnel operate. The banality of evil thesis refers to arrangements in these settings which facilitate and even normalise abuses that occur typically in obedience to higher orders. However, it is more likely that features of the social environment, including the legitimacy of the identity evoked by those giving orders, make some orders more persuasive to those giving them effect. In other words, under particular conditions, subordinates are likely to ­identify with authorities, making them responsive to both explicit and implicit direction. Identification may lead to following orders directly (explicit direction), or perhaps, under conditions of confusion and even anomie, to ‘fill in the [supposed] gaps’ (implicit direction) through acts of abuse or cruelty. In short, ‘tyranny does not flourish because perpetrators are helpless or ignorant of their actions. It flourishes because they actively identify with those who promote vicious acts as virtuous’ (Haslam and Reicher, 2012: 3). In 2004 Joe Darby gave a series of shocking images taken at Abu Ghraib to CBS News. He discovered them while looking through the photos on fellow US soldier Charles Graner’s camera. The story on 60 Minutes went viral, causing the US administration to bunker down into damage control mode. One unusual aspect of this revelation was that it provided a rare insight into a classic example of a ‘closed’ or ‘total’ institution (Goffman, 1961), in fact two closed institutions—the military and a prison or detention centre. Neither has historically been exposed to the public on any ­significant scale. As the terms suggest, both have been hard to scrutinise for reasons related to their location, architecture and security functions. Despite the sheer depravity of the images, responsibility for the whole Abu Ghraib

156  Mark Halsey and Andrew Goldsmith affair was eventually attributed largely to the actions of a few bad apples. There was nothing—according to Donald Rumsfeld—fundamentally or systemically sadistic about US soldiers or about their treatment of prisoners of war to be concerned about, least of all those suspected of terrorist activity or belonging to the Iraq-Afghanistan insurgency. Time reported the outcome of the Abu Ghraib revelations in the following manner: Eleven low-ranking soldiers of the 372nd Military Police Company, a unit of reservists that guarded the prison, were convicted on criminal charges for the abuses at Abu Ghraib. Notably, Pvt. Lynndie England and Spc. Charles Graner Jr., soldiers who were in the leaked photos, were sentenced to three and 10 years in prison with a demotion, respectively, TIME reported. Charges included assault, conspiracy, maltreatment of detainees, committing indecent acts and dereliction of duty. The prison commander in Iraq at the time, Janis Karpinski, faced administrative action and was demoted from the rank of general but faced no c­ riminal charges. Others were discharged from duty and convicted in court martials. Graner was released from prison in August 2011 (Trivedi, 2013).

When the evidence of abuses of Abu Ghraib came to light, it was apparent to the global audience of these images that practices of degradation and humiliation were commonplace or at least far from being isolated occurrences. As Puar (2004: 531) remarked: [W]hat is exceptional [about the Abu Ghraib images] is not the actual violence itself, but rather the capture of these acts on film. … We have proof, finally, of what we know to be true not only in Iraq and Afghanistan and Guantanamo Bay, but in our very own prisons in the United States.

While many viewers would have been familiar with the sense of stigma felt by many suspects or offenders within the civilian criminal justice system, including the loss of status, the extreme nature of these images point to a much-exaggerated process of degradation of military detainees. In other words, while there are resemblances between the two systems, the military system on display in these images indicates a more skewed, partisan and destructive version. Why might that be? We have already acknowledged in the previous section the impact of existential threat and uncertainty upon the way in which interrogations are carried out. There are at least two other factors that might be considered. One relates to the previous point, while the second stems from the common origins of personnel involved in both systems. In conventional military conflicts and wars the concept of the enemy is usually fairly obvious and present among those directly involved in armed struggle. The identity of enemies is typically more easily ascribed in ‘­regular’ warfare by reason of uniforms and the reliance upon known military formations. In asymmetrical armed conflicts, the identity of enemies is more problematic because many of these visible markers of identity or status are absent or hidden. Moreover, the direct relation of lethal antagonism assumed or

Perverse Penalities: Towards a Penology of the Military 157 imputed to the relationship between military personnel and those detainees in their charge seems likely to strongly influence how ­matters of status and personal identity are treated by the captors as a matter of operational reality. In short, acts of degradation are likely to be ‘undertaken as an immediate kinship and tribal obligation and carried out by those who, unlike our professional degraders in the law courts, acquire both right and obligation to engage in it through being themselves the injured parties or kin to the injured parties’ (emphasis added) (Garfinkel, 1956: 424). As we consider further below in relation to the Abu Ghraib incident, it would be almost impossible in war for military interrogators or guards not to see themselves as the kin of their injured and killed colleagues, to view those in their charge as likely accomplices in or perpetrators of those injuries and deaths, and for that perception and associated feelings to influence how they deal with those captives. Another way in which penality more generally intersects with military operations is through recruitment of personnel. One of the most telling aspects of the Abu Ghraib calamity was the fact that Charles Graner—the ring-leader—was a former correctional officer. In the 1990s Graner was a guard at Fayette County Prison and subsequently State Correctional Institution, Greene, in Pennsylvania. Allegations of abuse were rife at both locations during his time at these institutions, and Graner was believed to be, at least tangentially if not centrally, involved in some of the troubling activities. He is certainly known to have sprayed mace into a colleague’s coffee, causing vomiting, and possibly to have placed razor blades in at least one ­prisoner’s food. At Greene Correctional Institution, guards once wrote ‘KKK’ in prisoners’ blood following a beating. Graner also had a history of violence against his wife spanning the late 1990s to early 2000s. This included threats to kill and physically abusing her (eg, banging her head repeatedly into the floor and dragging her through the house by her hair). All of this was witnessed by the couple’s two children (Finkel and ­Davenport, 2004). The mentality imported by Graner to the Abu Ghraib detention centre was therefore deeply warped from the outset. And in what surely must rate as one of the most extraordinary admissions of sadistic behaviour in a correctional role, Graner reputedly told Darby, ‘The Christian in me knows it was wrong, but the corrections officer in me can’t help but want to make a grown man piss himself’ (quoted in Brown, 2005: 982). By looking more closely at the culture of correctional institutions and the kinds of misconduct issues associated with officer behaviour in those ­settings, it is possible to see the risks to military detainees that can be imported into military environments by recruitment of personnel with correctional backgrounds. There can be no doubt that prison officers face a multitude of challenges in performing their role. Prisons—including those in the military context—can be highly unpredictable places and the dangers posed to staff are real. ‘The role of correctional officer is tough, d ­ emanding,

158  Mark Halsey and Andrew Goldsmith and highly stressful. … Officers “are charged with the central task of supervising and securing unwilling and potentially violent populations”’ (­Armstrong and Griffin, 2004, quoted in Lambert et al, 2007: 644). The very nature of officer work—based as it is around the extreme imbalance of power—means the relationship between captor and captive is open to all manner of abuse. Sykes (1958) recognised the ‘corruption of authority’ as a key means for ensuring the generally good order of custodial settings. The scale and type of concessions sanctioned by guards (turning a blind eye to soft drug use, permitting additional time out of cell, etc) is paramount to getting the job done. For at least some prison officers, witnessing and perpetrating abuse— being ensconced in a system of rules and practices which directly and more subtly harms other people—is familiar terrain. In many contexts—civilian and in the theatre of war—abuse of prisoners, whether psychological or physical, is part and parcel of prison life, even though, as noted, substantiated reports of such are rare. Some of the risks to persons detained in a prison environment can be seen in excerpts below from interviews with prisoners in Australian prisons. They help to illustrate some of the perils arising from closed institutions where many officers’ actions remain largely out of mind and out of sight. [I]t’s not a very good place to be in, a juvenile [detention facility], because they [ie the staff] do a lot of things to us physically, mentally, emotionally and it affects us. … Some of [the staff] are … ex-army personnel. … I’ve been tied up with … my hands and legs to my back and lying on my face for three days and weren’t given food. … And when I was given food, I was given food on a plate on the ground like how I would feed my pet animal (Prisoner, South Australia).

In this excerpt, we are reminded that correctional systems often recruit persons with prior military experience. But as is in the case of Graner, it is possible in times of conflict or war that the opposite occurs. In both settings, the perceived need among staff to assert authority and show ‘who’s in charge’ is often associated with threats or acts of violence against detainees and prisoners. While it is possible to attribute individual blame for many of the excesses, there remains a recurrent, indeed familiar, and hence systemic, aspect to many abuses in these closed settings: Last time I was [in prison] there was this Palestinian guy, and the officers were yelling in his face. And when they were yelling, they were spitting at the same time and he was wiping it off his face with his hands by his side. And they kept yelling at him and he kept wiping their spit off his face. [Well], he wiped the spit off his face one too many times and they dragged him into a room and roughed him up a bit. [So] I went in there and I said, ‘You just can’t do that’. And then they put me up against the wall and [one officer] had his fist like that [ie clenched and raised], and said, ‘I’ll shatter your jaw with one hit’. … There’s just too much hatred (Ex-prisoner, South Australia).

Perverse Penalities: Towards a Penology of the Military 159 You get a kid … and he swears at staff and goes off. … So [they] put him in his [cell] … Obviously he’s going off. … So then … a few kids will go to the door and say, ‘… If you get me locked down I’ll fucking bash you’. … This peer pressure, that’s what the staff want. … They know if [they] lock down the whole mob … this kid’s not going to do it again because the boys will come out and … make his time worse (Prisoner, South Australia).

Thus, in some ways, it is not surprising that enemy detainees might find the conditions and treatment in military prisons harsh, violent and degrading; the conditions under which many civil prisons operate or have operated in the past has ensured that these settings deliver similar experiences to civilian prisoners in peace time. Four decades ago the Report of the Royal ­Commission into New South Wales Prisons (1978) shone a light on what Justice Nagle called the ‘regime of terror’ at Grafton Correctional Centre. Tracs [ie, ‘intractable prisoners’ who would not conform to prison rules] were judged by how well they could handle it [a flogging]. Pain and suffering was hard currency inside the walls of Grafton Jail. I continued to grit my teeth and tried to cover my naked body as their batons beat a tattoo over my back and bare ­shoulders. The crescendo of batons meeting bare flesh made a distinctive sound. It was a sound I would never forget (Matthews, 2006: 27).

While much has changed over the intervening years, prisons of whatever kind (civilian or military) continue to be potentially violent or violent places in which to be detained or indeed to work. As noted earlier, for many ­military personnel involved in interrogation or the detention of suspected enemy combatants, the sense of being attacked and hated by those they deal with is understandable, even predictable, in conditions of armed conflict. That such feelings might evolve into harsh or cruel treatment of detainees is, as we have seen, unsurprising. The challenge is how to mitigate or prevent this tendency. Similarly, in civilian prison environments, the sense of being under threat from prisoners almost certainly influences how prison officers conduct themselves. Not unlike military environments, the sense of ‘us v them’ operates in many if not most prison settings. These fears and concerns held by staff, if not alleviated or managed adequately, are likely to contribute to the emergence and ongoing presence of various forms of correctional corruption, including abuse of authority and violence towards prisoners (­Goldsmith et al, 2016). MILITARY COMMUNITIES

In the context of civilian prisons, it has been observed, ‘A complete account of prison violence involves a combination of individual and environmental factors … that influence one another in a transactional fashion’ (PetersonBadali and Koegl, 2002: 41). To understand violence within military institutions, it similarly makes sense to consider environmental as well as individual

160  Mark Halsey and Andrew Goldsmith factors. While we have alluded earlier to the conflict setting as one powerful influence on how military personnel conduct themselves with respect to detainees, and touched upon the cross-over between correctional staff and military personnel in cases such as Graner, more can be said regarding the sources of recruitment to the military and the kinds of communities from which personnel come. Nearly 70 per cent (n=670k) of US military personnel on active duty come from just nine states: Texas, California, North Carolina, W ­ ashington, ­Kentucky, Colorado, Virginia, Georgia and Florida (US Census Bureau, 2012). All these states retain the death penalty, a clear measure of popular support for retributive measures. One in five citizens residing in cities such as Austin, Dallas, Atlanta, Phoenix, Tucson, Los Angeles, Stockton, Miami, Denver and Virginia Beach live below the national poverty line (US ­Census Bureau, 2012). The deliberate targeting of poorer regions of the US by ­military recruiters is well known and not entirely surprising. The age structure of serving military personnel is also an important element in the attempt to understand how personnel behave. The work of Segal and Segal (2004: 24) demonstrates that 40 per cent of enlisted men and women are aged 17 to 24 years. Compared with the age distribution among the general civilian workforce—where only around 7 per cent of persons are aged 17 to 24 years—the military deliberately targets young recruits. These figures accord with the age of military interrogation trainees mentioned later. Young people particularly have proven particularly susceptible to persuasion and intimidation to commit various abuses under war-like conditions. In studies of child soldiers, for example, it has been found that young soldiers can be persuaded to commit acts such as killing someone through small, escalating forms of violence over time (Wessells and Kostelny, 2009: 113). What is being described in many of these accounts is an alteration of one’s identity, in which humiliation, degradation and threats of violence are used to impart to recruits a new military or combatant identity that is compliant, either blindly so or because in some sense they believed there was no alternative. This was certainly evident in the case of Lynndie England, Graner’s girlfriend during their service together in Abu Ghraib. England was just 20 years old at the time and came from a poor community in West Virginia: ‘You have to understand that it’s a crescendo,’ says Karpinski. ‘Lynndie is away from the flagpole, in Abu Ghraib—the most terrible place. You’re being ­mortared every night. You are breathing dust and broken concrete. It’s hot. You feel dehumanized. You’re drained of every bit of compassion that you have. She did it because she wanted to come back from this godforsaken war and be able to say, ‘We did this for the government.’ She was made to believe that this was of such importance to national security. It was, you know, ‘You stick with me, kid, and you might even win a medal’ (McKelvey, 2006).

Perverse Penalities: Towards a Penology of the Military 161 In the documentary Ghosts of Abu Ghraib, most of the military police officers and military intelligence personnel did not even think of questioning what they had been asked to do since they were, after all, ‘just out of basic’. In addition to the impacts of youth and poverty on military recruitment, there is also the issue of the relationship between where military personnel come from and the character of those places in terms of the attitudes and beliefs that their populations bring to matters of security and penality. Over the period June 2012 to April 2013, Humboldt State University, drawing on the Digital Online Life and You (DOLLY) project at the University of Kentucky, ran an innovative study called the ‘Geography of Hate’, which sought to understand the location and distribution of hate speech across the US. In the said period a group of students read and coded every tweet determined as hate-oriented sent from within the US. ‘Heat maps’ were produced of homophobic and racist remarks ‘demonstrat[ing] the variability in the frequency of hateful tweets relative to all tweets over space’. In these maps, Where there is a larger proportion of negative tweets referencing a ‘hate word’ the region appears red on the map, where the proportion is moderate, the word was used less (although still more than the national average) and appears a pale blue on the map. Areas without shading indicate places that have a lower proportion of negative tweets relative to the national average.

Key words coded for homophobia were ‘dyke’, ‘fag’, ‘homo’ and ‘queer’, while for racist attitudes the key terms were ‘chink’, ‘gook’, ‘nigger’, ‘­wetback’, and ‘spick’ (see Stephens, nd). The online interactive versions of these heat maps enable the viewer to zoom to the level of particular towns. What this shows is not only a broad and somewhat predictable alignment with southern states (historic strongholds for resisting the abolition of slavery and progress towards black civil rights), but also with the location of key active service army bases in the US (see www.goarmy.com/home/soldier-life/post-locations.html). These maps permit some basic insight into the geography of service and its correlations with concentrations of racism, homophobia and authoritarian attitudes. And they permit something to be seen of the relationship between domestic strongholds of ‘Othering’ and the likelihood that such (extreme) prejudice will be successfully replicated and intensified when transported to foreign hostile locations. These are jurisdictions that, for example, produced the horrific 1998 murder of James Bird, who was dragged by three white supremacists in Texas behind a pick-up truck for more than three miles to his death. In the same year, Matthew Shepherd was tortured and beaten by two men in Wyoming in what was labelled a homophobic hate crime. Even in peacetime, it may be said, the US is involved in violence against its own citizens as well as preparing for armed conflict. In part, this arises from the high level of gun ownership in the population ­generally, and in some places more than others. Much of the violence associated with crime

162  Mark Halsey and Andrew Goldsmith involves guns, while high levels of gun involvement are also reported in domestic disputes, accidental and suicidal deaths (Stroebe, 2016; ­Hemenway, 2017). In foreign policy terms, the US is in a permanent state of readiness for war. This requires a constant supply of young citizens who are surplus to industrial and economic requirements and whose angst, anger and sense of normlessness (anomie) can be galvanised around a common goal (or enemy). So much of the abuse at Abu Ghraib was couched in a curious mix of sadism, homophobia and homo-erotica. Why else would two ‘staunch’ heterosexuals (Graner and England) appear so thoroughly excited at the advent of naked prisoners posed in pyramidal fashion? Culturally, forcing M ­ uslim males to cavort with one another while stripped bare (and in front of ­Westerners—including females) equates to the most pointed type of humiliation as punishment. As Brown (2005: 93) writes, ‘Abu Ghraib reminds us … of the pains we had hoped to transcend, of the “intimate ­terrorism” we had hoped to end, of the bloody sovereignty we had hoped to eclipse in a postnational context’. MIC MEETS PIC

The relationship between the military and PICs has gone largely unremarked to date. Yet over the last few decades there has been a steadily building (and perverse) alliance between the two sectors. The shared concern with security has enabled the emergence of a political economy that links the two together. Unicor, known as Federal Prison Industries until a 1977 re-branding, is a network of over 100 factories at 70 penitentiaries within the US; a self-sustaining, selffunding company owned wholly by the government, created by an act of Congress in 1934 to function as a rehabilitative tool to teach real-world work skills to ­federal inmates (Rohrlich, 2011).

At a rate of pay of just USD1.15 per hour, ‘federal prisoners … mak[e] … missile components[,] … cable assemblies for the McDonnell Douglas/ Boeing (BA) F-15, the General Dynamics/Lockheed Martin F-16, Bell/ Textron’s (TXT) Cobra helicopter, as well as electro-optical equipment for the BAE Systems Bradley Fighting Vehicle’s laser rangefinder’ (Rohrlich, 2011). Further, ‘according to the Left Business Observer, the federal prison industry produces 100% of all military helmets, ammunition belts, bulletproof vests, ID tags, shirts, pants, tents, bags, and canteens’ (Palaez, 2014). An astonishing 60 per cent of US Department of Defense procurement is sourced from Unicor (Singleton, 2013). The US is in fact replete with persons whose lives are connected in direct fashion with the MIC and PIC. Around six million Americans are employed in the MIC (active service, civilians, defence industry) at an annual cost

Perverse Penalities: Towards a Penology of the Military 163 of around USD700 billion (or 5 per cent of GDP). Roughly one million ­Americans are directly employed in the PIC at a cost of around USD50 billion per annum (Pew Center on the States, 2011: 5). Overall, one in 20 workers in the US are employed across the military and correctional sectors—this excludes those whose livelihoods dovetail only intermittently with such sectors (eg building contractors and the like). The cross-over between military activity and correctional activity is therefore undeniable and on a vast scale. Military penality—that which occurs beyond US ­borders—is a small cog in a much larger carceral-war machine that operates domestically as well as internationally. Elements of a shared logic and set of practices are increasingly visible, albeit prisons have long operated as closed institutions, along military lines—witness the para-military structure of prisons, prison boot camps, routine degradation of the human spirit, the regimentation of the most trivial behaviour, and fierce allegiance to clock time as archetypal examples of such. As Gregory (2007: 221) writes: Abu Ghraib was [therefore] not exceptional at all. It was the gravity of the situation outside Abu Ghraib that was used to license the horrors inside Abu Ghraib: not because the prison was ‘out of place,’ removed from the surveillant eyes of a high command preoccupied with the insurgency beyond its perimeter, but because the U.S. military folded the prison into its counter-insurgency operations (emphasis in original).

The privatisation of sections of the correctional sector at home also finds parallels in the conduct of wars and conflict, including in matters of ­penality. Among the diverse array of private military contractors employed in support of operations in conflict zones such as Iraq and Afghanistan have been those contractors employed to train military interrogators. Arrigo and B ­ ennett (2007) outline the run-down of in-house human intelligence capabilities during the 1980s and 1990s in the US military. As the Iraq conflict commenced in 2003, this shortfall presented a severe and urgent challenge that was difficult to remedy quickly. Among the litany of shortcomings among efforts made to overcome this deficit, Arrigo and Bennett disclose that the US Army was reliant on around 120 instructors to train military personnel in how to conduct field interrogations. Of this number, some 95 per cent were private contractors, some of whom had little military experience (Arrigo and Bennett, 2007: 417). The outcomes achieved were troubling to say the least. This particular military/industrial project enrolled as typical students in the short course 19-year-old high school graduates with ‘little military experience beyond basic training’ (Arrigo and Bennett, 2007: 415). This folding of the military prison into the machine of war mimics the way prisons ‘back home’ had long been folded into economic life and into strategies for achieving class (and racial) compliance (eg Wacquant, 2009). Here, the hegemony of the PIC is diffused to the MIC. Incarceration—the 2.1 million Americans in jail, state penitentiaries and federal prison—is

164  Mark Halsey and Andrew Goldsmith intricately and ineradicably woven into the US economy. A staggering ‘one in every eight state employees works for a corrections agency’ (Pew Center on the States, 2011: 5). Moreover, for every USD14 of public expenditure, one dollar is spent on state and/or federal corrections. In 2007 the cost of running police, courts and prisons in the US was just short of USD230 ­billion (Kyckelhahn, 2011). The prison has also long been a key instrument in class and racial struggle (see Wacquant, 2009). In one of the few national studies on the topic, 70 per cent of state prisoners reported an annual income of less than USD15k prior to incarceration (Beck et al, 1993: 3). African Americans make up 40 per cent of the prison population but just 13 per cent of the US population. Hispanic and Latino persons constitute 32 per cent of prisoners but only 17 per cent of the US population. This means ‘1 in every 15 African American men and 1 in every 36 Hispanic men are incarcerated in comparison to 1 in every 106 white men’ (Kerby, 2012). The PIC’s place in controlling ‘minority’ populations—essentially, non-white Anglo Saxon Protestants—is plain to see. How easy, therefore, it is to extend the distresses of incarceration to those located in distant lands and who would threaten US citizens, not to mention the sons and daughters of the US at the front line of the war on terror. The exporting of the US penal habitus to the Middle East was no ad hoc affair. As Brown (2005: 984) comments, ‘Several million dollars were set aside in the war package to hire prison consultants to advise construction abroad. Most of these justice envoys include former directors of corrections, predominantly from border states, such as Texas, Arizona, and New Mexico’. CONCLUDING REMARKS

What happens in military prisons specifically, and in relation to military penality more broadly, should, in theory, be emblematic of how the nation state conceives of itself, as fair, just, decent, ‘civilised’, lawful and ethical. But while many people might have recoiled at what was revealed to them behind the curtain of war in the images of Abu Ghraib, could it really be said that the majority did not already believe such things transpired? The key question raised by signal events such as the Abu Ghraib scandal is whether a non-violent military penality in the context of the ‘war on terror’ is even possible, let alone desirable. In such a world, as those linked to military interrogations in that case exemplified, military prisons are spaces to carry on war by other means. In Gregory’s (2007: 206) terms, ‘the war prison … can be understood as a dispersed series of sites where sovereign power and bio-power coincide’. Such liminal spaces, located somewhere between all-out military combat zones and the sites of the machinery of civilian

Perverse Penalities: Towards a Penology of the Military 165 c­ riminal justice, are filled not by prisoners but by ‘unlawful combatants’ and ‘­security detainees’ (Gregory, 2007: 213, 222). The intervention of a foreign sovereign force into what is or quickly becomes a hostile space makes the management of these combatants less about safeguarding their well-being than ensuring their demise. These prisons become ‘non-places for nonpeople’ (209) or ‘wild zones’ (211) premised on the ‘calculated withdrawal of subjecthood’ (2007: 209, 211, 215). Restraint, removal and revenge substitute for measured punishment, reintegration and rehabilitation. In such scenarios, questions of breaking or dispensing with the rules are paramount. The presumed exceptionalism of these scenarios emerges as a justification not to follow the law. To quote Derrida (1992: 36), there is the moment in which the foundation of the law remains suspended in the void or over the abyss, suspended by a pure performative act that would not have to answer to or before anyone. The supposed subject of this pure performative would no longer be before the law, or rather he would be before a law not yet determined.

Abu Ghraib—the perversity of events unfolding there—has its genesis in significant measure in a set of arrangements in which the becoming of the domestic prison guard links to the becoming of the military police officer and the military intelligence personnel. And this in the wider context of a nation committed to hunting down the enemy at all costs—even if it involves a substantial loss of legitimacy at the global level regarding the rationale for war. As Deleuze and Guattari (1996: 157) caution, ‘The question … is whether the pieces can fit together, and at what price. Inevitably, there will be monstrous crossbreeds’. Finally, from what we have seen, a military penology, especially where it is oriented to activities offshore, is required to engage with the acute global pressures upon military personnel engaged in hostile zones and armed conflict as well as incorporating the more familiar aspects of domestic ­penology—the fair treatment of detainees and a humane approach towards realising their ultimate release and reintegration back into normal life. In seeking to reconcile these two aspects, we have argued, there is a need to recognise the perverse aspects and consequences associated with how this reconciliation is currently being practised in some quarters. Critical debate is needed about the place of vengeance in the operations of military criminal justice, especially in relation to operations against enemy combatants. The violent intersections of cultures, creeds and peoples that are common in many off shore engagements require that personnel chosen for military interrogation and the operation of military prisons in these circumstances need to be selected and trained carefully. Personnel in these roles need to be differentiated from those chosen for special operations units and hot conflict engagements. They need to have, at the very least, what psychologists have

166  Mark Halsey and Andrew Goldsmith called conceptual/integrative complexity, an ‘ability to differentiate and integrate conflicting perspectives in an overarching framework’ (Arrigo and Bennett, 2007: 416), something of course that would not be amiss in many civilian prisons given their increasingly diverse populations. There remains, nonetheless, an important place for a critical political economy of military penology, one that stands above the situational and operational activities and challenges we have mostly discussed earlier, which causes us also to examine the acute influence of political and economic pressures in many circumstances on war and conflict zones. REFERENCES Agence France Presse (2013) ‘US Defence Contractor Pays $5 Million Over Abu Ghraib Abuse’, Business Insider Australia, January, www.businessinsider.com.au/ us-defense-contractor-pays-5-million-over-abu-ghraib-abuse-2013-1. Armstrong, G and Griffin, M (2004) ‘Does the Job Matter? Comparing Correlates of Stress Among Treatment and Correctional Staff in Prisons’ 32 Journal of C ­ riminal Justice 577–92. Arrigo, J and Bennett, R (2007) ‘Organizational Supports for Abusive Interrogations in the “War on Terror”’ 13(4) Peace and Conflict: Journal of Peace Psychology 411–21. Beck, A, Gilliard, D, Greenfeld, L et al (1993) Survey of State Prison Inmates, 1991 (US Department of Justice). Brown, M (2005) ‘Setting the Conditions for Abu Ghraib: The Prison Nation Abroad’ 57(3) American Quarterly 973–97. Carlsmith, K and Sood A (2009) ‘The Fine Line Between Interrogation and Retribution’ 45 Journal of Experimental Social Psychology 191–96. Casler, B (2008) Racism and War the Dehumanization of the Enemy (6 of 18)— Brian Casler (Iraq Veterans Against the War), www.ivaw.org/racism-and-wardehumanization-enemy/bryan-casler. Deleuze, G and Guattari, F (1996) A Thousand Plateaus (Minneapolis, University of Minnesota Press). Derrida, J (1992) ‘Force of Law: The Mystical Foundations of Authority’ in D ­ Cornell, M Rosenfeld and David Carlson (eds), Deconstruction and the ­Possibility of Justice (New York, Routledge). Feeley, M (1979) The Process is the Punishment: Handling Cases in a Lower ­Criminal Court (Washington, Russell Sage). Finkel, D and Davenport, C (2004) ‘Records Paint Dark Portrait of Guard’ ­Washington Post, June, www.washingtonpost.com/wp-dyn/articles/A168322004Jun4.html. Garfinkel, H (1956) ‘Conditions of Successful Degradation Ceremonies’ 61(5) American Journal of Sociology 420–24. Garland, D (2013) ‘Penality and the Penal Estate’ 51(3) Criminology 475–517. Ghosts of Abu Ghraib, film, directed by R Kennedy. USA: HBO, 2007. Goffman, E (1961) Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (New York, Anchor Books).

Perverse Penalities: Towards a Penology of the Military 167 Gregory, D (2007) ‘Vanishing Points: Law, Violence and Exception in the Global War Prison’ in D Gregory and A Pred (eds), Violent Geographies (New York, Routledge). Goldsmith, A, Halsey, M and Groves, A (2016) Tackling Correctional Corruption (London, Palgrave Macmillan). Haslam, A and Reicher S (2012) ‘Contesting the “Nature” of Conformity: What Milgram and Zimbardo’s Studies Really Show’ 10(11) PLOS Biology 1–4. Hemenway, D (2017) ‘Reducing Firearm Violence’ 46 Crime & Justice 201–30. Hooks, G and Mosher, C (2005) ‘Outrages Against Personal Dignity: Rationalizing Abuse and Torture in the War on Terror’ 83(4) Social Forces 1627–46. Janoff-Bulman, R (2007) ‘Erroneous Assumptions: Popular Belief in the Effectiveness of Torture Interrogation’ 13(4) Peace and Conflict: Journal of Peace P ­ sychology 429–35. Kerby, S (2012) ‘The Top 10 Most Startling Facts About People of Color and Criminal Justice in the United States: A Look at the Racial Disparities Inherent in Our Nation’s Criminal-Justice System’, Centre for American Progress, March, http:// americanprogress.org/issues/race/news/2012/03/13/11351/the-top-10-most-­ startling-facts-about-people-of-color-and-criminal-justice-in-the-united-states/. Kyckelhahn, T (2011) Justice Expenditures and Employment, FY 1982–2007— Statistical Tables (Washington, US Department of Justice). Lambert, E, Hogan, N and Griffin, M (2007) ‘The Impact of Distributive and Procedural Justice on Correctional Staff Job Stress, Job Satisfaction, and Organisational Commitment’ 35 Journal of Criminal Justice 644–56. Matthews, B (2006) Intractable (Sydney, Pan Macmillan). McGreal, C (2012) ‘US Marines Accused of War Crimes’, The Guardian, January, www.theguardian.com/world/2012/jan/12/american-marines-accused-war-crimes McKelvey, T (2006) ‘A Soldier’s Tale’, Marie Claire, November, 82–88. Palaez, V (2014) ‘The Prison Industry in the United States: Big Business or a New Form of Slavery?’ Centre for Research on Globalization, March, www.globalresearch.ca/the-prison-industry-in-the-united-states-big-business-or-a-new-formof-slavery/8289. Pew Center on the States (2011) State of Recidivism: The Revolving Door of ­America’s Prisons (Washington, The Pew Charitable Trusts). Peterson-Badali, M and Koegl, C (2002) ‘Juveniles’ Experiences of Incarceration: The Role of Correctional Staff in Peer Violence’ 30 Journal of Criminal Justice 41–49. Puar, J (2004) ‘Abu Ghraib: Arguing Against Exceptionalism’ 30(2) Feminist Studies 522–34. Rohrlich, J (2011) ‘Why Are prisoners Building Patriot Missiles?’ Minyanville, March, www.minyanville.com/businessmarkets/articles/defense-industrial-basedefense-budget-defense/3/7/2011/id/33198?page=full. RT (2011) ‘American Soldier Admits to Thrill Kill in Afghanistan’, RT, September, www.rt.com/usa/us-unarmed-holmes-afghanistan-255/. Segal, D and Segal, M (2004) ‘America’s Military Population’ 59(4) Population ­Bulletin 1–42. Singleton, M (2013) ‘Six Common Products US Prisons Manufacture Besides License Plates’, International Business Times, March, http://www.ibtimes.com/ six-common-products-us-prisons-manufacture-besides-license-plates-1115683.

168  Mark Halsey and Andrew Goldsmith Stephens, M (nd) Geography of Hate, http://users.humboldt.edu/mstephens/hate/ hate_map.html. Stroebe, W (2016) ‘Firearm Availability and Violent Death: The Need For a Culture Change in Attitudes Towards Guns’ 16(1) Analyses of Social Issues and Public Policy 7–35. Sykes, G (1958) The Society of Captives (Princeton, Princeton University Press). Trivedi, A (2013) ‘What’s Next for Snowden: 10 Notorious Leakers and How They Fared: The Abu Ghraib Prison Pictures—Joe Darby (2004)’ Time, June, world.time.com/2013/06/10/10-notorious-leakers-and-how-they-fared/slide/ abu-ghraib-photo-leak. United States Census Bureau (2012) National Security & Veterans Affairs: Military Personnel and Expenditures [Tables 505 to 508, and 708]. Wacquant, L (2009) Punishing the Poor (London, Duke University Press). Wessells, M and Kostelny, K (2009) ‘Youth Soldiering: An Integrated Framework for Understanding Psychosocial Impact’ in B Barber (ed), Adolescents and War: How Youth Deal with Political Violence (Oxford, Oxford University Press).

9 Conduct Unbecoming: Homosex, Discipline and Military Cultures in the Second World War YORICK SMAAL AND GRAHAM WILLETT*

INTRODUCTION

I

N APRIL 1943 an Adelaide newspaper published an unusual report. At an unnamed army camp somewhere in South Australia, a court ­martial had convened to consider the indecent conduct of a married 26-year-old Australian army Lance-Sergeant. He had been charged with indecently assaulting two militia privates on an evening a few weeks earlier, initially in the camp’s post office, and again outside when the defendant caught up with the complainants as they were walking away. Under crossexamination by the defending counsel, one private testified that ‘he was very much annoyed at [the defendant’s] actions, but did not punch [him] because the accused was wearing glasses’. In his own defence, the Lance-Sergeant admitted his initial indiscretion but denied further contact. ‘He considered his act was a joke among friends’ and called five character witnesses to testify on his behalf (News, 1943: 3). While the outcome in this matter is unknown, the case is an important account of the social and sexual tensions between men at war and the intervention of the law when official and informal boundaries were crossed. Public reports on military justice and homosexuality at the height of the Second World War are rare. At a time when the press regularly published accounts of Allied soldiers who appeared before the civilian courts on similar matters, courts martial were noticeably absent from the public record.

*  This project was supported by grants from the Australian Army History Unit and the Palm Center, University of California. Part of this research has appeared in Smaal (2015). We would like to thank Mark Finnane, Chris Brickell, Peter Stanley and the editors for their comments on earlier drafts of this chapter and Martin Schipper, who followed up a number of missing references at the National Archives and Records Administration, Washington DC.

170  Yorick Smaal and Graham Willett Military records are buried in large institutional repositories, and official statistics on the extent and circumstances of homosex between servicemen are fragmentary and disorganised if they were ever compiled at all.1 Some social histories have taken account of the war’s consequences on queer lives and lifestyles at home, but only a small number of studies have examined men’s personal experiences in the armed forces and the authorised and informal attempts to control and regulate their activities and identities (Bérubé, 1990; Jackson, 2004; Vickers, 2013, 2008; Smaal, 2015; ­Willett and Smaal, 2013; Smaal and Willett, 2015; Wotherspoon, 1995; Shilts, 1993; Haggerty, 2003). Military law—or at least the threat of its application—has been a principal form of organisational governance in this regard. It codified standards of behaviour and outlined the consequences of infractions considered detrimental to institutional objectives and responsibilities. Focusing on the ­Australian and US forces during the Second World War, this chapter examines the ways in which military officials attempted to deal with homosex, both as a legal issue and a vexatious disciplinary problem, in which straightforward procedure and discretion played their parts.2 Australian and American forces dedicated significant time and effort to the question of homosex and the differences between sexual activities and sexual lives. While Australia differed in its approach, coming later to the subject and on a smaller scale, it followed the lead of its larger Ally by borrowing heavily from then recent American procedures privileging discharge (rather than punishment) for inherently queer servicemen. This transition challenged and refined the practice and application of military law but tells only part of the story. Courts martial and discipline appear to have been infrequent and marginalised occurrences even before official policy shifted. Homosex often lay beyond the gaze of the law, shrouded by the discretion of officers, the tolerance of enlisted men, the silences around moments of sexual expression, relief and curiosity, sexual assault, and the use of ­extrajudicial violence. If the aforementioned militia private’s testimony under cross-examination suggests that physical force was a predictable male response to unwanted

1  We use John Howard’s (2001: xviii–xix) term ‘homosex’ in this chapter, as in our work more generally, to refer to the complex mix of same-sex practices cutting across age, class or ethnicity, regardless of the meanings attached to, or the desires expressed by, the individuals involved. 2  We searched the records of the National Archives of Australia and the Australian War Memorial for any files on either courts martial or homosex for Australian personnel in any theatre during the Second World War and the National Archives and Records Administration (Washington DC) for American forces stationed in the South West Pacific Area. The chapter also draws on a comprehensive collection of newspaper reports on courts martial between 1939 and 1945 taken from the National Library of Australia’s TROVE digitised newspapers.

Conduct Unbecoming: Homosex, Discipline and Military Cultures 171 sexual attention, the Lance-Sergeant’s version of events points to other ways to describe apparently sexualised displays of military ­masculinities: skylarking, ribald behaviours and general mucking up between servicemen. While the circumstances of the Lance-Sergeant’s behaviour brought his case to official attention—his actions in approaching subordinate ranks and multiple men triggered the law’s intervention—other forms of ­homosex met with alternative dispositions. Different groups of men were happy to engage in games laced with sexual tension and innuendo, and a fair share of overt physicality (Anderson, 2006: 26). Other recruits stole fleeting moments of comfort, some formed long-term relationships, while the confidently queer created vibrant worlds within the larger bases of the South Pacific. The extent of the problem—at least as far as it was imagined—and just what to do about it garnered the concern of Allied commanders at the ­highest level. The Americans led the pack in this regard, and they were more concerned than anyone else with sex between men. Their management strategies followed the millions of US servicemen who flooded into ­Australia from late 1941 onwards, as the campaigns against the Japanese escalated. Australia subsequently amended its National Security Regulations to recognise the jurisdiction of American military law over locally stationed US troops (National Security (Allied Forces) Regulations, Statutory Rules 1941, 1942). But like Australian cases, only those with civilian involvement ever hit the press headlines. Instances of homosex between ­soldiers remained ­hidden in the interests of public relations, despite officials admitting privately that its incidence increased as troop numbers swelled (NARA, RG 495, PM to C/S, 2 Feb 1945). Senior commanders in Australia and the US acknowledged that some degree of physical intimacy was to be expected among groups of young men removed from the regularities of civilian life. One Australian army commander suggested in September 1944 that recreational activities, plenty of sports and exercise, and strong spiritual guidance were good ways to keep passions in check (NAA, MP742/1, Appendix B issued with HQ 1 Aust. Corps, 14 Sep 1944). And there was always the deterrence of the military law, at least officially. Servicemen faced years of imprisonment, a loss of rank and pay, as well as dishonourable discharge and humiliation if they stepped out of line. But these measures yielded questionable results for confirmed personality types: men who identified as queer or homosexual or kamp and who divined their social and cultural selves from their attraction to others of the same sex. Often, but not always, considered to display the markers of effeminacy, their presence in the forces raised serious concerns for officials. ­Gender inversion could, it was believed, have disastrous consequences for the war effort. The commander of Australia’s New Guinea Force, L ­ ieutenant ­General Sir Leslie Morshead, argued that ‘this type of person should not be

172  Yorick Smaal and Graham Willett permitted to continue service with the Army’ when a group of homosexuals (who described themselves as ‘the girls’) were brought to his attention in the territory in late 1943 (NAA, MP742/1, Commander NGF to LHQ, 14 Jan 1944). According to the US Army Chief of Chaplains, such individuals posed a ‘virulent danger’ to forces—their exclusive desire for others of the same sex threatened to tempt physically and morally corrupt isolated and lonely young servicemen (NARA, RG 247, Arnold to Byrnes, 11 Jan 1945). A civilian expert working in the Los Angeles Sex Offenses Bureau attempted to quantify the scope of the threat for the forces, telling the US Army’s chief psychiatrist, Lieutenant Colonel Patrick S Madigan in late 1941 that one homosexual caused more institutional damage than 100 prostitutes (NARA, RG 112, De River to Early, 25 Oct 1941). Madigan rejected this claim. Like other psychological experts (and a ­ number of commanders), he recognised homosexuality as a complex ­problem—but started from a recognition that the law was failing to stem the activities of genuinely queer individuals (NARA, RG 112, Madigan to De River, 17 Nov 1941). Here, the proposition that homosexuality should be the preserve of the clinic rather than courts flagged new administrative possibilities. This potential was realised from early 1943 onwards when both the US Army and navy issued memoranda outlining the circumstances and procedures for discharging men from service. This initiative would come to form the backbone of the Australian army’s approach when it grappled with the issue in 1944. If new agendas challenged the reach and authority of military law, discipline did not lose out altogether. New policy measures may have made the disposal of soldiers easier in cases where corroborative e­ vidence for trial was missing or weak (usually when men confessed their inclinations and behaviours to officials or when participants were the only witnesses to the crime), but courts martial remained the only suitable response for infractions containing elements of aggravation, or coercion or the involvement of minors. Thus guidelines for discharge clarified the criminogenic aspects of homosexuality and the circumstances for its p ­ rosecution—where the law could and should be used as well as its redundancies and inefficiencies. STRUCTURES OF MILITARY JUSTICE

Military justice was not the kind familiar to the civilian world and discipline was primarily concerned with maintaining robust and efficient fighting machines. Australia directly imported its system from the British. The Defence Act 1903 applied the Naval Discipline Act 1866 (UK) and the Army Act 1881 (UK) to the Australian forces for most of the twentieth

Conduct Unbecoming: Homosex, Discipline and Military Cultures 173 c­entury (Healy, 2002: 93–96).3 American military law was based on the army’s A ­ rticles of War and Articles of the Government of the Navy, first created during the Revolutionary War in 1775, but drawing heavily from British Army and naval codes (Chambers, 1999: 335). The law and its institutions focused on crimes that threatened the effectiveness of the forces—desertion, insubordination, and the theft and loss of equipment, among other infractions (Emsley, 2013: 16–39; Jackson, 2004: 80; Vickers, 2013: 109–10). The US navy, for instance, reported that 86 per cent of cases heard before its courts martial between 1 December 1941 and 30 June 1946 concerned such military offences (NARA, RG 80, Statistics on Discipline, 6 Sep 1946). Australian figures also offer some indication of policing priorities. Eighty per cent of charges for the army in the state of Queensland for the first half of 1943 concerned unofficial leave, which, along with insubordination, made up half the courts martial of Australian troops in the Middle East in the last half of 1940 (AWM 60, 67/1/2718, Courtney to Qld L. of C. Area, 7 Jul 1943; AWM 63, 69/500/8, Courts Martial Statistics 1940; AWM 63, 69/500/111Statistics 1941). Men in uniform found themselves facing very different prospects to civilians when military courts convened. These were not jury trials by peers but were conducted by Judge Advocates and a quorum of officers whose rank and experience were determined by the type of sitting and its jurisdiction (Peterson, 1945: 167–77; Emsley, 2013: 44–53). The scale and outcome of military hearings indicates the extent to which they were used as a formal measure of institutional control. The Australian army, for instance, tried approximately 5,030 offences for every 100,000 troops across the war (Smaal, 2015: 115). Convictions would have been high. Although verdicts for these cases are missing, Emma Vickers (2013: 111) has calculated that almost 81 per cent of British courts martial resulted in conviction across the war while US Army courts martial at Australian and New Guinea bases between 1942 and early 1945, for instance, returned a conviction rate of around 95 per cent (NARA, RG 407, History of the Judge Advocate ­Sections, USASOS, SWPA, 5 July 1945). Sexual conduct between males occasionally brought men before military courts even if policing priorities were focused elsewhere. The army and naval Acts and the American codes each contained a number of legislative provisions that could be deployed when servicemen were caught in compromising positions together, or when they committed sexual assaults such as those alleged against the 26-year-old Australian Lance-Sergeant

3 The Army Act applied to the Royal Australian Air Force from 1939 onwards while a ­separate US air force was not formed until 1947.

174  Yorick Smaal and Graham Willett in early 1943. He could have been charged under section 18(5) of the Army Act, which outlawed ‘disgraceful conduct of a cruel, indecent or unnatural kind’. American soldiers, meanwhile, were prosecuted for sodomy under Article of War 93, defined explicitly as oral or anal connection in A Manual for Courts-Martial US Army (1943: 177). Allied sailors were subject to similar regulations: personnel in the Royal Australian Navy (RAN), for instance, were to be punished or dismissed from service on conviction of ‘scandalous action in derogation of God’s honour and corruption of good manners’ (Naval Discipline Act, section 27). Added to these offences were loosely framed provisions around behaviours that threatened good order and discipline. They provided added discretion for prosecuting officers, allowing them to pursue cases that failed to meet evidentiary thresholds for crimes of indecency or immorality or to provide alternative charges to the principal offence (The Articles of War, article 96; Army Act, section 4). The discretionary nature of these general sections have come to be known in common law as the ‘Devils’ article’ for their legal imprecision (Nicholas, 1963). Australian soldiers who appeared before courts martial for homosex faced a maximum penalty of two years’ imprisonment as well as discharge with ignominy. Penalties were higher for Americans—soldiers faced five years’ confinement with hard labour (10 years if it included the element of assault) with dishonourable discharge and the forfeiture of all pay and allowances. Naval regulations punished US sailors with a maximum of 10 years’ imprisonment (Bérubé, 1990: 129). The purpose of confinement emphasised rehabilitation as much as punishment. Round Mountain, an American detention facility situated west of ­Brisbane, for instance, returned an average 50 US soldiers a month to active units during its first year of operation. A staged system of salvage and reintegration aimed to put men ‘back on their spiritual feet’ and return them to duty as quickly as possible (NARA, RG 389, Military Police Official Organ, nd). Sentences for convicted men varied as much as military codes allowed, with inconsistent penalties in similar cases plaguing courts martial—much to the frustration of commanders (NARA, RG 127, Procedure for the Disposition of Homosexuals, 1 Jan 1943; AWM 60, 142/1/368, Wilson to Butts 27 Jan 1943). A study conducted by the US Army of 34 courts martial conducted between 1938 and 1941 reveals that punishments for homosex ranged from dishonourable discharge (without imprisonment) to 10 years’ confinement in cases where violence was used. The average sentence in consensual cases was 2.3 years, but this increased considerably with aggravating factors (NARA, RG 407, Sodomy Cases Review, Jul 1938 to May 1941). Outcomes in a handful of Australian army cases range from a £10 fine for a charge of indecent exposure at a busy Brisbane intersection (NAA, MP742/1, Qld L. of C. to LHQ, 7 Sep 1944), to 12 months’ ­imprisonment

Conduct Unbecoming: Homosex, Discipline and Military Cultures 175 with hard labour for an attempted sexual assault in the ­canteen of the Australian ­Military Forces in Alice Springs (Australian Lesbian and Gay Archives, 1943). Other soldiers and sailors were simply discharged with ignominy on conviction. Even less is known about the disposal of o ­ fficers although the British and Canadian experience suggests they were more likely to mount a successful defence than their subordinates (Jackson, 2004: 91–92; Vickers, 2013: 111–12). Men holding commissions had more to lose and further to fall than enlisted soldiers. Punishments were steeper under US regulations, and dismissal was mandatory. Australian officers, too, were singled out for special treatment. Men convicted under section 16 of the Army Act for behaving ‘in a scandalous manner unbecoming an officer and gentlemen’ could be cashiered on conviction, a more ignominious form of dismissal, denying for life a number of citizenship rights. Cashiering was designed to embarrass and humiliate offenders, adding ceremonial spectacle to the ordeal of the trial. One Australian officer, for instance, was marched hatless before his men as the charges and conviction were announced to his unit. The commanding officer tore the epaulettes and badges from his uniform (Weekend ­Australian, 1982: 11). The problem of homosexuality appeared to be a small one for military courts, suggesting reluctance to prosecute or collusion within units. The US navy, for instance, estimated in 1946 that only half a per cent of its personnel were confined for serious crimes and that homosexual offenders accounted for a minute number of inmates, despite the threat of discovery and punishment. Even discharges were low, with an estimated 0.01 per cent of sailors separated from service for this reason (NARA, RG 80, Personnel Discharged for Homosexual Reasons, 24 Sep 1946). Incomplete, or erratically collected, figures for the US Army also suggest that the intersection of homosex and formal justice was uncommon. Samesex matters made up a quarter of sex crimes to appear before courts martial for the United States Army Services of Supply for the two years preceding 1944, but a total of 21 cases was tiny given the scale and operation of military ­justice in the South West Pacific Area (NARA, RG 495, Morale and ­Conduct, ­General Court-Martial 1945). The figures appear even smaller for the A ­ ustralian forces. Despite the Australian army’s Judge Advocate General’s (JAG) Department reviewing 47,990 courts martial by the end of October 1945, an investigation into the extent of homosexuality among its soldiers a year earlier returned only 17 cases for the entire force, not all of which reached the courts (AWM 54, 447/2/2, Aust. Army Legal Corps, Historical, 14 Nov 1945; Smaal, 2015: 101). Part of the challenge in understanding the history of courts martial is the scope of criminal offences and the details of official reporting. A ­ rticle of War 93, for instance, covered various crimes including assault with intent to rape, and assault and battery, along with sodomy, meaning that

176  Yorick Smaal and Graham Willett only detailed scrutiny of individual cases or specially compiled statistics illuminated the circumstances of offending. Scandalous behaviour for ­ ­Australian officers included theft and seduction, for example, while the ‘Devil’s article’ was deliberately broad (Morning Bulletin, 1942: 3; Northern Star, 1944: 5). Its US equivalent, Article of War 96, for instance, included at least 37 different offences (A Manual for Courts-Martial US Army, 1943: 100–01). Discharges posed similar difficulties. When asked to survey the conditions and number of men discharged from the US navy because of homosexual offences, one of the most experienced officers with its medical corps explained the size of the task to his superiors. Every undesirable, bad conduct and dishonourable discharge would need to be reviewed separately, necessitating a special system to be set up in the Bureau of Naval Personnel (NARA, RG 80, Personnel Discharged for Homosexual Reasons, 24 Sep 1946). Some men avoided the military courts altogether when they were subject to other dispositions and responses—the official position on administrative discharges later in the war, for instance, certainly impacted on the reach of the law. New policies meant that the congenitally queer were separated from service without the intervention of the courts. Officers, too, had a range of disciplinary options at their disposal. Reprimand, admonishment, fines, extra duties, and the like could be used to summarily manage infractions depending on the rank of the offender and the powers of commanding officers. The transfer of men to other units had its uses, breaking up problematic friendships or removing temptation (NAA, MP742/1, A-G to DGMS, 22 Feb 1944). Given prevailing concerns with maintaining troop numbers, US authorities emphasised the discretionary powers of commanders to administer summary discipline (NARA, RG 338, Military Justice Information Bulletin No. 6, 1 Feb 1943). Australian commanders, meanwhile, were frustrated that some army officers were penalising serious offences with minor punishments (AWM 54, 265/3/3, Quantum of Punishment, 14 Jul 1943). Use of the civilian law partly explains the infrequency of courts martial in prosecuting homosex. The Australian Manual of Military Law (1941) stipulated that civilian courts were the preferred course of action for cases involving minors (section 18, fn 14, 413) and a study of wartime cases before Queensland courts reveals that almost one-quarter of prosecutions for homosex involved soldiers, sailors or airmen with citizens (Smaal, 2015: 118). The Army Act technically allowed British civilian law to apply in cases of ­homosex (with rules and exceptions), although there is no evidence of its use against Australian offenders (section 41). Less is known about the American experience. Article of War 74 established exclusive federal military control over American soldiers in times of war, although officials were more flexible in practice, establishing, in the words of David Monroe (1942: 249–50), a ‘“middle of the road” policy’.

Conduct Unbecoming: Homosex, Discipline and Military Cultures 177 They handed over offenders to the public authorities if offences c­ ommitted in civilian communities were especially egregious to local sensitivities and so serious as to disqualify men from service. In the US, Major General of the US Army, James L Collins, suggested to the Adjutant General in 1941 that homosex cases were civilian in nature and should be dealt with by those agencies when offences occurred at home (NARA, RG 407, Disposition of Charges involving Sodomy, 15 Dec 1941). HOMOSEXUAL EXPERIENCE

Of course, a good deal of homosex—situational, experimental, identitybased or otherwise—simply went unnoticed or unreported. Men enjoyed sex with each other despite the threat of the law, observing recognised codes of silence and discretion or keeping to known networks. One Australian soldier recalled many years after the war that horseplay and roughing about often provided cover for sexual activities (Barrett, 1987: 351). Alcohol also offered plausible deniability when things got hot and heavy. A group of drunken Australian servicemen paired off one night in the steamy forests of Borneo, for instance, but never spoke of the incident again (Anderson, 2006: 48). ‘Jungle juice’ conveniently explained their indiscretions as liquor did for many men. Queer personalities often used the ‘double life’ to protect themselves and their friends, and men were discreet about where and when they sought the company of others. Cruising for sex was often undertaken away from one’s own unit, as queer soldiers in New Guinea admitted to Australian officials in 1944 (NAA, MP742/1, Life History of Ian, 12 Jan 1944; NAA, MP742/1, Life History of Morrie, 27 Jan 1944).4 Anonymity provided some measure of protection if approaches were unreciprocated. Men familiar with queer lives and lifestyles used tried and trusted methods to signal availability and interest. They cruised around well-known meeting places like hotels, public toilets, streets and parks in larger forward bases and tested the interests of potential partners through conversational and physical cues (Smaal, 2015: 81–83). Officers took extra precautions against the risk of exposure, ­playing among themselves, sometimes in specially constructed facilities designed for queer rendezvous, and only known to a select few. A group of American naval officers in Noumea, for instance, created a straw fort providing ­privacy for exclusive get-togethers (NARA, RG 313, Statement by J.T.K.,

4  We have used alphabetised pseudonyms for these interviews. They can be identified by format and date in the original files.

178  Yorick Smaal and Graham Willett 22 Sep 1943).5 Others in town disguised their rank if they sought out ­company with enlisted men. One US lieutenant discarded the bars on his lapel or slipped into a standard uniform he kept especially for the purposes of cruising when he went in search of men of subordinate rank (NARA, RG 313, Statement by S.T.C., 24 Sep 1943; NARA, RG 313, Statement by J.G.W., 30 Sep 1943). Some sexual attempts were less successful than others and soldiers ­occasionally misread the sexual availability of potential partners. Other offenders used coercion or force. Rough justice was probably frequent in these circumstances, restoring social cohesion and individual integrity. One ­Second Lieutenant with the US navy, for instance, skinned his knuckles after he took a swing at an army colleague who persistently demanded oral sex after they spent an evening drinking together in Noumea in ­October 1943. ‘Quite the scuffle’ ensued (NARA, RG 313, Homosexual Activities, 1 Oct 1943). It is unclear how this case came to the attention of the authorities, and certainly many men chose not to report such incidents to the military police or their superiors. Doing so could implicate them in behaviour that threatened their military career and promotion regardless of their actual role and conduct. Unwanted advances could also raise troubling questions of identity for those who found themselves the object of such attention and affection. Sometimes men assumed they possessed or displayed feminine or homosexual characteristics that attracted such interest. Violent responses helped reassert their normative masculinity and warrior status. This was important at the group level too. As Peter Stanley (2010: 141) observes, individual reputations could colour collective identities. The discharge for homosex of a number of soldiers with the 2/8 Battalion served as a warning to men in other Australian units. The character of the entire contingent had been called into question, and they were taunted, it is alleged, with ‘Backs to the wall! Here come the second eight’ (Johnston, 1996: 172). Fists probably settled most disagreements although reactions could escalate if threats warranted proportionate action. Desperate situations occasionally required desperate measures. Thus one American private with the 48th Quartermaster Regiment in Townsville in North Queensland, for instance, took up arms in order to resist an attempted rape. He shot his assailant in the groin with a rifle causing serious injury, but we do not know what became of him or the aggressor (NARA, RG 495, History of Provost Marshal’s Activities at Base Section, 21 Jun 1943). Violence and crime could also accompany or follow otherwise innocuous moments of mutual pleasure, and in ways that did not attract the

5 

We have used the initials of actual names in these files.

Conduct Unbecoming: Homosex, Discipline and Military Cultures 179 attention of the authorities given the potential consequences for complainants. A number of Australian soldiers were attacked by US paratroopers on Ela Beach in New Guinea in 1943, for instance, following a seaside romp—the injuries were so severe that one soldier ended up in hospital (NAA, MP742/1, Life History by Harry, 12 Jan 1944). Robberies, assaults and blackmail went unreported as did other forms of bullying and harassment. The legitimacy of the use of force as a response to the threat of homosex is evident in a trial heard before the Melbourne criminal court in early 1945. A 23-year-old signaller with the Australian Military Forces was charged with murder after the body of a 25-year-old Lance Corporal was discovered in a field near Balcombe Camp in Victoria in February 1945. The fatal turn of events had followed an evening of rest and relaxation, but things turned sour when the victim made a number of ‘revolting suggestions’ to the defendant. A similar (but unsuccessful) approach had apparently transpired in New Guinea where the two men served together a few years earlier, and the Lance Corporal apparently had a reputation as a ‘certain type’, going by the name of ‘Dulcie’ in particular circles. Events quickly got out of hand this time around. The defendant told police that he resented the Lance Corporal’s approach and ‘sort of went mad’, arguing that he had lost control in response to unsolicited overtures by his comrade (Truth, 1945: 35). The jury sympathised given the provocation, and the defendant was acquitted.6 The actions and inactions of local officers also account for the ‘dark ­figure’ of homosex. Friendly superiors transferred friends and lovers on occasion so they might be together, while officers with their own interest in men, like the US lieutenant who cloaked himself in everyday fatigues to cruise for soldiers, were more likely to pursue physical delights rather than prosecute them. Some officials were not overly concerned by its practice, and as Emma Vickers (2013: 124–25) has argued, British officers could be reticent to remove otherwise good soldiers for inconspicuous activities. Others turned a blind eye, wanting neither the workload nor the p ­ ublicity that accompanied official sanctions. Unlike matters of national security, indecency and immorality were not eligible to be tried in camera and officers, like their subordinates, could be reluctant to report matters up the chain of command: homosex in the ranks might reflect badly on their leadership. One soldier with the 2nd Australian Imperial Force suggested that only the

6  This appears to be an early example of what came to be known as the ‘homosexual panic defence’ which made its way into civilian court rooms (beginning in the United States) initially as an insanity or diminished capacity defence and later as a provocation defence (Lee, 2008; Howe, 1997: 336). There is a long-standing defence in British law to the same effect known informally as the Portsmouth Defence, named, not coincidentally, after a major seaport.

180  Yorick Smaal and Graham Willett most flagrant behaviours would force an officer’s hand (Hadrian, 1973: 4). Administrative discharges could be an attractive proposition when recklessness put officers in difficult situations. It appears that a good number of US commanders were already using discharges when Lieutenant Colonel Ernest H Burt, Chief of Military Justice Section, conducted a study of homosex in early 1941. ‘[A] substantial number of generals,’ he noted, ‘do not consider sodomists penal problems and do not send such cases to trial by general courts-martial in the absence of aggravating factors’ (NARA, RG 407, Sodomists, 14 May 1941). The War Department was unconvinced about the merits of such an approach and emphasised the disciplinary line. Sodomy was a crime and administrative discharges, apparently prevalent among some officials, flagrantly disregarded the department’s endorsed position as well as the express wishes of Congress (NARA, RG 407, Sodomists, 11 July 1941). Change was on the horizon, however, and the informal practices of some US generals became official army policy in January 1943. Men who demonstrated an ‘inherent or acquired constitutional defect which influences normal control of [their] actions’ were to be assessed by a board of officers for discharge as mentally unfit for service (NARA, RG 407, Sodomists War Department Memo). The US navy had implemented similar procedures only weeks prior (NARA, RG 127, Procedure for the Disposition of ­Homosexuals, 1 Jan 1943). The discipline of psychiatry proved pivotal to these changes and, while questions on the law’s effectiveness in dealing with homosex had been on the US Army’s agenda for at least a decade, the war provided a new impetus (NARA, RG 407, Sodomists, 9 Jul 1941). Understanding the soldier’s mind, experts argued, was central to the efficient management of massive numbers of troops. Psychiatrists contended that nothing was gained by trial and imprisonment: it did not cure offenders nor did it provide an effective deterrent (NARA, RG 165, Whitehorn and Overholser to Harrison, 3 Nov 1942). This was not to suggest, however, that military law had suddenly become redundant. Policy memoranda for both US forces addressed the conditions for prosecution at the outset of their new policy guidelines, listing exclusions and exceptions only after questions of law had been fully addressed. Exemptions only applied to personality types—self-described or habitual cases who sought out their pleasures with like-minded others. ‘Socially dangerous’ homosexuals who, like the rapist, had relations by force required punishment and isolation (NARA, RG 127, Procedure for the Disposition of Homosexuals, 1 Jan 1943). The possibility of legal censure always hung over US sailors regardless of the circumstances of offending and its discovery. The navy continued to use the threat of courts martial even in consensual cases—its policy was to draw up charges before confronting offenders, forcing officers to resign

Conduct Unbecoming: Homosex, Discipline and Military Cultures 181 for the good of the service and coercing enlisted men to accept dishonourable discharges or face military justice (NARA, RG 127, Procedure for the Disposition of Homosexuals, 1 Jan 1943). The army, meanwhile, used the law for situational incidents. Activities that could be explained by segregation, curiosity or immaturity, the influence by a person of greater years or superior grade, or alcohol or drugs were siphoned off from habitual cases. Otherwise normal solders with transitory or infrequent behaviours could be salvaged for the war effort. The utility of these measures is apparent in an investigation in Brisbane in 1943 when 18 men practising ‘perverted activities’ were discovered by investigators with the army’s provost marshal. While psychiatrists confirmed that seven soldiers were ‘not susceptible to ordinary human motives’, the remainder were found to have a so-called normal sexual orientation and only engaged occasionally in homosex due to curiosity and alcoholic over-indulgence. These were salvageable men who could return to duty following appropriate disciplinary action (NARA, RG 496, Psychiatric Study of Alleged Sodomists, 15 Apr 1943). In this case, they were reduced to the grade of private for misconduct and relocated for duty away from ‘cities and more or less easy life’ (NARA, RG 496, Ostrander to Commanding General USASOS, 1 May 1943). Courts martial remained mandatory in circumstances of aggravation, assaults or coercion, any action in which a person did not knowingly or willingly co-operate and for activities with children under the age of consent, whether they cooperated or not. One US soldier with 46th Engineers Company, for instance, was convicted by court martial in March 1944 and sentenced to the maximum penalty of 10 years’ imprisonment with a ­dishonourable discharge for violently raping a 14-year-old boy behind a Brisbane Hotel (QSA, Result of Action against US Soldier, 31 Mar 1944; Truth, 1944b: 15; Truth, 1944a: 8). Well after new policy measures allowing for discharge had been introduced, at least 10 men were serving periods of detention at Round Mountain, punished for circumstances of aggravation or considered to be salvageable: useful soldiers once more after a course of correction (Smaal, 2015: 119).7 The US forces were particularly concerned with sex between servicemen, and they refined their policies throughout the war and beyond. The US Army, for instance, amended its policy in 1944 with suspects now requiring ­hospitalisation for psychiatric diagnosis and assessment. Along with the navy, it generated more discursive material on homosex than any other Allied force in its shift from penal response to scientific evaluation. The American approach presaged the Australian army’s policy when commanders in Melbourne were notified (by way of a US investigation)

7 

This figure applies to the period between October 1944 and March 1945.

182  Yorick Smaal and Graham Willett that a number of their soldiers in New Guinea pursued the ‘female side of homosexual intercourse’ and were ‘addicted to this practice’ (NAA, MP742/1, Commander NGF to LHQ, 14 Jan 1944). Existing disciplinary measures under the Army Act appeared inadequate given that suspects had come forward to make their own statements without any corroborating particulars. Despite their initial resistance to allow administrative discharges in such cases, Australian commanders eventually relented when they released guidelines on ‘homo-sexuality and other perversions’ in June 1944 (NAA, MP742/1, Psycho-Pathic Cases, 11 Jun 1944). Like their American counterparts, the army’s advice provided for separation from service only against strict criteria. They still considered discipline to be the first line of defence and it applied to all cases of violence, coercion, public obscenity and where minors or weak characters were involved (NAA, MP742/1, Psycho-Pathic Cases, 11 Jun 1944). DRAWING THE LINE

Tense encounters and exchanges between senior officers and administrators accompanied the emergence of psychologically informed policies as psychiatry butted against the entrenched primacy and authority of the law. Redrawing the lines around the criminal aspects of homosex was marked by confusion and professional tension and the implementation of new policies in the US and Australia met with considerable resistance. Conservative warhorses and threatened judicial officers especially resented the encroachment of psychiatry into what had been the preserve of discipline. They flagged a number of potential problems with the new system and the risks that abandoning the law entailed. One of their biggest concerns was the possibility of false confessions and its potential consequences. Some officials feared that discharging men based only on their own admissions and without other forms of punishment provided an easy way to avoid military service, especially in inhospitable locations (NARA, RG 407, Disposition of Charges Involving Sodomy, 17 Feb 1942; NAA, MP742/1, A-G to HQ New Guinea Force, 22 Feb 1944; NAA, MP742/1, Ross to DGMS, 11 Feb 1944) In the worst imagined cases, the forces might be facing an exodus of men as soldiers scrambled to declare their love for one another. These fears never materialised, of course. For one thing, they failed to take account of dominant social attitudes towards homosexuality held by soldiers and civilians. For another, the circumstances of discharge brought with it a range of censures and penalties even if men managed to escape the purview of the courts. Explaining an unexpected return home had its own difficulties and US soldiers tarred with dishonour struggled personally and financially, as Allan Bérubé explains (1990: 228–32).

Conduct Unbecoming: Homosex, Discipline and Military Cultures 183 Authenticating personality types posed other problems, especially when it was based on self-reporting. The Australian army was generally suspicious of psychiatry, and Colonel Henry Hume, a consulting physician, told its commanders that specialists would have difficulty separating the genuine cases from malingerers (NAA, MP742/1, Homosexual Males, 8 Mar 1944). Even the relatively developed state of psychiatry in the US was not immune to the challenges of sifting through behaviours and identities. Confusion continued to cloud the causes and markers of congenital conditions, and conflicting expert advice scuppered quick resolutions in a number of cases (NARA, RG495, Report on Homosexual, 18 Aug 1944; NARA, RG495, Psychiatric Report on [P.E.], 10 Oct 1944; NARA, RG495, Report on Homosexual, 16 Aug 1944). False accusations of homosexuality were another potential issue. Men with a score to settle might confect events or activities. ‘The fact is well known,’ one US expert admitted in 1944, ‘that individuals who are themselves homosexual or carry strong latent homosexual trends may falsely accuse others of such activity’. He went on to suggest that formal charges only be laid following inquiries by commanding officers on the background of the accuser and the veracity of the claims (NARA, RG 52, ­Homosexuality, False Accusations of, 13 Apr 1944). Even if offenders could be accurately identified, opponents of the new policy on the ‘mentally unfit’ pointed to the dangers that administrative discharge posed to social and national security. While some argued that imposing the law was meaningless and unjust, others suggested that doing nothing at all was equally fraught. Simply returning men to the home front removed them from the danger of battle and unleashed the problem on the civilian world where offenders would be free to continue their perverted practices (NARA, RG 407, Disposition of Sodomists, 25 Oct 1943). ‘I am not disposed to agree, as a matter of policy that this man should be discharged and turned loose on society’, an American officer declared in one such case in 1943. ‘I believe he should be confined in a prison, one of the purposes of which is to protect society from just such individuals’ (NARA, RG 495, G-1 to C/S, 11 Feb 1943). This threat extended to the state itself. Officers with military intelligence access posed a distinct menace to national security if they were discharged without appropriate confinement (NARA, RG 52, Harrison to Overholser, 5 Aug 1942). These anxieties would be fully unleashed in the 1950s when concerns about post-war moral laxity combined with a Cold War security panic about a treasonous pro-Soviet ‘homintern’ of homosexual spies. Intensified policing of sexual subcultures more generally, and in the military, in particular, followed (Johnson, 2004; Willett, 1997). Finally, disciplinary advocates argued that absence of deterrence in the forces sent the wrong moral message about homosexuality. The ‘leniency’ of the discharge without punishment did not fit the crime. Even in

184  Yorick Smaal and Graham Willett c­onsensual cases, offenders were able to distinguish right from wrong, as the US Army JAG Major General Myron Cramer pointed out in ­October 1943; the law’s principled line around homosex encapsulated all its manifestations ­irrespective of personality or disposition (NARA, RG 407, Memorandum for the Chief of Staff, 25 Oct 1943). Shifting these boundaries softened cultural norms that valued hardened ideals of bravery and sacrifice. CONCLUSIONS

Armies and navies are instruments for fighting wars. But even such straightforward purposes raise major logistical issues including how to manage and administer the complexities generated by massive numbers of personnel. Laws and regulations can dictate norms of behaviour but, as commanders have always known, the realities of order and discipline do not begin and end here. The presence of homosex among Allied troops in the Second World War presented a myriad of challenges—for the men who engaged in it, for the men around them, and for the men in charge. Presumably, any number of soldiers who might have been tempted by intimacy, relief, and affection decided against it for fear of running up against the military’s codes of ­conduct and punitive powers. But plenty did participate in homosex as an occasional or as a frequent practice. Their mates either turned a blind eye or reported them. Their local commanders had the same choice. Policy ­makers had the additional burden of trying to decide what homosexuality was—an inherent characteristic, a weakness, a breach of discipline or a medical or legal problem. They ultimately decided that the law best served them when it was balanced with other methods of disposal given the varied context and circumstances of offending and the exigencies of war. REFERENCES A Manual for Courts-Martial US Army (1943). Revised in the Office of The Judge Advocate General of the Army and Published by Direction of The President, ­Effective April 1 1928, Corrected to April 20 1943 (Washington: United States Government Printing Office). Anderson, R (2006) Free Radical: A Memoir of a Gay Political Activist (Caboolture, the author). Australian Lesbian and Gay Archives (ALGA) (1943), Dino Hodge Papers, Acquisition 2014-0045, Part 1, World War 2 Files, The King Against R. H. S., Supreme Court of the Northern Territory, October 1943.

Conduct Unbecoming: Homosex, Discipline and Military Cultures 185 AWM 54, 447/2/2, [Military Law—Application of Defence and Army Acts], JAG Dept and the Aust. Army Legal Dept. now the Aust. Army Legal Corps, Historical (14 November 1945). AWM 54, 265/3/3, Discipline: Quantum of Punishment (14 July 1943). AWM 60, 67/1/2718, [Provost Services—Half Yearly Report January–June 1943], Lt-Col. J. Courtney APM Qld L. of C. Area to GOC HQ Qld L. of C. Area (7 July 1943). AWM 63, 69/500/8, AIF (Middle East) Courts Martial Statistics (1940). AWM 63, 69/500/111, Courts Martial Records—Headquarters AIF (Middle East) Statistics (1941). AWM 60, 142/1/368 [Courts Martial], J. Bowie Wilson JAG to Lt Col. Butts Qld L. of C. Area (27 January 1943). Barrett, J (1987) We Were There: Australian Soldiers of World War II Tell their Stories (Ringwood, Vic., Penguin). Bérubé, A (1990) Coming Out under Fire: The History of Gay Men and Women in World War Two (New York, Free Press). Chambers, JW (1999) The Oxford Companion to American Military History (Oxford, Oxford University Press). Emsley, C (2013) Soldier, Sailor, Beggarman, Thief: Crime and the British Armed Services since 1914 (Oxford, Oxford University Press). Hadrian (1973) ‘Homosexuality in the Forces’ 3 Camp Ink 4. Haggerty, T (2003) ‘History Repeating Itself: A Historical Overview of Gay Men and Lesbians in the Military before “Don’t Ask, Don’t Tell”’ in A Belkin and G Bateman (eds), Don’t Ask Don’t Tell: Debating the Gay Ban in the Military (Boulder, Lynne Rienner publishers) 14–21. Healy, F (2002) ‘The Military Justice System in Australia’ 52 Air Force Law Review 93. Howard, J (2001) Men Like That: A Southern Queer History (Chicago, University of Chicago Press). Howe, A (1997) ‘More Folk Provoke Their Own Demise (Homophobic Violence and Sexed Excuses—Rejoining the Provocation Law Debate, Courtesy of the Homosexual Advance Defence)’ 19 Sydney Law Review 336. Jackson, P (2004) One of the Boys: Homosexuality in the Military during World War II (Montreal, McGill-Queen’s University). Johnson, DK (2004) The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government (Chicago, University of Chicago Press). Johnston, M (1996) At the Frontline: Experiences of Australia Soldiers in World War II (Cambridge, Cambridge University Press). Lee, C (2008) ‘The Gay Panic Defense’ 42 Davis Law Review 471. Manual of Military Law (1941) Australian edition (including Army Act and Rules of Procedure as Modified and Adapted by the Defence Act 1903–1939 and the Australian Military Regulations) (Canberra: LF Johnston Government Printer). Monroe, DG, (1942) ‘When a Soldier Breaks the Law’ 33 Journal of Criminal Law and Criminology 245. Morning Bulletin (1942) (Rockhampton) 30 September.

186  Yorick Smaal and Graham Willett NAA, MP742/1, 84/1/164, Homosexual Males [in Armed Forces during World War II Discharge], Appendix B issued with HQ 1 Aust. Corps (14 September 1944); Brig. DA & QMG to Maj.-Gen. A.J. Boase Commander 11 Aust. Division, ­­­Psycho-Pathic Cases (11 June 1944); Col. Henry Hume Turnbull Consulting Physician, Homosexual Males (8 March 1944); Life History by Harry (12 January 1944); Life History by Ian (12 January 1944); Life History by Morrie (27 January 1944); Lt Col. Ross to DGMS (11 February 1944); Lt-Gen. L. Morshead Commander NGF to LHQ Aust. (14 January 1944); Maj.-Gen. A-G to DGMS (22 February 1944); Maj.-Gen. A-G to HQ New Guinea Force (22 February 1944); Maj.-Gen. GOC Qld L. of C. to LHQ (7 September 1944). National Archives and Records Administration (NARA), RG 52, Records of the Bureau of Medicine and Surgery, Entry 15 B, General Correspondence 1941–46, Box 165, P11-5/00 to P13-7/P19-1, Chief of Neuropsychiatric Service to Chief of the Bureau of Personnel, Homosexuality, False Accusations of (13 April 1944); Commander F.M. Harrison to Dr Winfred Overholser (5 August 1942). NARA, RG 80, General Records of the Department of the Navy, 1798–1947, Entry A1-131 P, Records of Secretary of the Navy James Forrestal, 1940–47, General Correspondence 1944–47, 30-1 to 31-1, Box 64, 31-1-22, C.S. Colclough, JAG, Statistics on Discipline (6 September 1946); Vice Admiral Ross T. McIntyre, Memo for Sec. Navy Regarding Review of Cases of Personnel Discharged for Homosexual Reasons (24 September 1946). NARA, RG 112, Records of the Office of the Surgeon General, Entry 29, General Subject File 1941–1942, Box 108, 250 to 250.1, J. Paul De River to Stephen P. Early, Secretary to the President (25 October 1941); Lieut.-Col. P.S. Madigan to J. Paul De River (17 November 1941). NARA, RG 127, Records of the US Marine Corps, Entry A1-237B, Histories and Museums Division, Records of Aviation Commands and Units, 1942–47, First Marine Aircraft Wing, Box 21, P13-7 Homosexuals, January 1943– March 1947, Office of Secretary to All Ships and Stations, Procedure for the Disposition of Homosexuals Among Personnel of the US Naval Service (1 January 1943). NARA, RG 165, Entry NM84-43A, Records of the War Department General and Special Staffs [WDGS/WDSS], Box 438, G1 Personnel Decimal File, 1942 June 1946, 250.1, John C. Whitehorn, MD Secretary, and Winfred Overholser, MD Chairman, Committee on Neuropsychiatry National Research Council to Capt. Forrest M. Harrison (3 November 1942). NARA, RG 247, Records of the Office of the Chief of Chaplains, Entry A1 1A, Office Movement Division, Decimal File, 1920–45, Box 195, 250.1 Morals and Misconduct (Miscellaneous), 10 December 1940–31 December 1943, Maj. Gen. William R. Arnold to Chaplain Byrnes, 11 January 1945.

Conduct Unbecoming: Homosex, Discipline and Military Cultures 187 NARA, RG 313, Naval Operating Forces, South Pacific Area Command (SOPAC)/ Red170, Entry P 90-C, Counter Intelligence Files, 1942–45, Box 21, Counter Intelligence Files Copy, Vol. II, Folder 1 of 2, Statement by J.T.K. (Indexed 22 September 1943); Vol. I, Statement by S.T.C. (Indexed 24 September 1943); Vol 1, Statement by J.G.W. (Indexed 30 September 1943); Vol III, Lt Henry L. de Give USNR to CIC-CIS, Homosexual Activities (1 October 1943). NARA, RG 338, Records US Operational Tactical and Support Organisations (WWII and thereafter), Entry A1 339, Box 270, 1 Corps, AG Section, 1942–45, 250 Discipline HQ 1st Corps, Col. AGD L.S. Ostrander, to Commanding General, US Advanced Base; Commanding Officers, all Base Sections and Unit Commanders USASOS, Military Justice Information Bulletin No. 6 (1 February 1943). NARA RG 389, Records of the Office of the Provost Marshal General, 1941–, Entry A1 449, Provost Marshal, Military Police Division, Doctrine and Enforcement Branch, Correspondence and Reports 1942–47, Box 1168, Department of the Army, The Adjutant General’s Office Washington, P. Bush, Release: Military Police Official Organ (nd). NARA RG 407, Records of the Adjutant General Office, Entry NM3 363, Army A-G Decimal File 1940–45, Box 992, Sodomists (14 May 1941), Maj-Gen. James L. Collins to the Adjutant General Washington DC, Disposition of Charges involving Sodomy (15 December 1941); Lieut. Col. Ernest H. Burt, JAGD, Memorandum for General Gullion, Sodomists (14 May 1941); Maj. James H. Walker, Sodomists (11 July 1941); Sodomists War Department Memo; Maj. Gen Allen W. Gullion, Memorandum for the Assistant Chief of Staff, G-1, Sodomists (9 Jul 1941); Lt. Col Robert W Berry, Disposition of Charges Involving Sodomy (17 February 1942); Sodomy Cases Review, July 1938 to May 1941; Maj. Gen. Myron Cramer, JAG, Memorandum for the Chief of Staff, Disposition of Sodomists (25 October 1943). NARA RG 407, Entry 427, WWII Operations Reports Pacific Theatre, Box 1028, 98-SS3-25, History of the Judge Advocate Sections, USASOS, SWPA (5 July 1945). NARA RG 495, Records of HQ US Army Forces, Western Pacific Entry 179, Provost Marshal General Correspondence Records 1942–45, Box 1266, 250.1 Morals and Conduct, List of papers, PM to C/S, 2 February 1945; Box 1276, 314.7, History of PM History of Provost Marshal’s Activities at Base Section 2 May 1943 inclusive (1 June 1943). NARA RG 495, Entry UD-UP48, Box 985, Formerly Classified General Correspondence, 1942–1944, 248-300.4, AFWESPAC 2501, Report on Homosexual (18 August 1944) 9th Ind., 1st Lieutenant Edward Hazelton (11 October 1944); AGO to Surg. Psychiatric Report on [on P.E.] (10 Oct 1944); Maj. Preston T. Brown, Report on Homosexual (16 August 1944).

188  Yorick Smaal and Graham Willett NARA RG 495, Entry 174, Judge Advocate General, General Correspondence 1945, Box 1233, List of Papers 250.1 USASOS Morale and Conduct, General Court-Martial. NARA RG 495, Entry UD-UP11, Box 22, Assistant Chief of Staff, General Correspondence 1942–44, 250.1 to 319.1, 250.4 General Courts-Martial, G-1 to C/S (11 February 1943). NARA RG 496, Records of General HQ, SWPA and US Army Forces, Pacific (WWII), Entry UD-UP187, Box 1243, 250.1, Office of the Surgeon to the Commanding General USAFFE APO 501, Report on Special Psychiatric Study of Alleged Sodomists (15 April 1943); 1st Ind. Brig- Gen. L. S. Ostrander to Commanding General USASOS, APO 501 (1 May 1943). News (1943) (Adelaide) 14 April, 3. Nicholas, DB (1963) ‘The Devil’s Article’ 22 Military Law Review 111. Northern Star (1944) (Lismore) 4 May. Peterson, MC (1945) ‘Naval Courts Martial’ 20 Indiana Law Journal 167. QSA A/12032, Cons. Jack McSporran, Result of Action against US Soldier [with correspondence and depositions] (31 March 1944). Shilts, R (1993) Conduct Unbecoming: Gays and Lesbians in the US Military (New York, St Martin’s Press). Smaal, Y (2015) Sex, Soldiers and the South Pacific 1939–45: Queer Identities in Australia in the Second World War (Basingstoke, Palgrave Macmillan). Smaal, Y and Willett, G (2015) ‘“Eliminate the Females”: The New Guinea Affair and Medical Approaches to Homosexuality in the Australian Army in the Second World War’ in C Twomey and E Koh (eds), The Pacific War: Aftermaths, Remembrances and Culture (London, Routledge) 233–49. Stanley, P (2010) Bad Characters: Sex, Crime, Mutiny, Murder and the Australian Imperial Force (Sydney: Pier 9). The Articles of War (1920) approved 4 June (Washington: United States Government Printing Office). Truth (1944a) (Brisbane), 23 January. Truth (1944b) (Brisbane), 12 March. Truth (1945) (Sydney), 1 April. Vickers, E (2008) ‘The Good Fellow: Negotiation, Remembrance, and Recollection: Homosexuality in the British Armed Forces, 1939–1945’ in D Herzog (ed), Brutality and Desire: War and Sexuality in Europe’s Twentieth Century (Basingstoke, Palgrave Macmillan) 109–34. Vickers, E (2013) Queen and Country: Same-Sex Desire in the British Armed Forces, 1939–45 (Manchester, Manchester University Press). Weekend Australian (1982) 1–2 May. Willett, G (1997) ‘The Darkest Decade: Homophobia in 1950s Australia’ 27(109) Australian Historical Studies 120–32. Willett, G and Smaal, Y (2013) ‘“A Homosexual Institution”: Same-sex Desire in the Army during World War II’ X Army Journal 23. Wotherspoon, G (1995) ‘Comrades-in arms: World War II and Male Homosexuality in Australia’ in M Lake and J Damousi (eds), Gender and War: Australians at War in the Twentieth Century (Cambridge, Cambridge University Press) 205–22.

10 Framing Criminologies of the Military: An Interdisciplinary and Pedagogic Reflection JAMES SHEPTYCKI AND DAVID MUTIMER

INTRODUCTION

T

HIS CHAPTER CONSIDERS ‘criminologies of the military’ as a field of scholarly inquiry and reflects on how its emergence might inform scholarship and pedagogy. New fields like this are interdisciplinary and raise interesting and complicated issues. What should students think when confronted with a term like ‘criminologies of the military’? There is at least one place on the Internet purveying ‘essential information’ to college and university-bound students where they can ask each other questions. Browsing the Internet searching on the topics ‘criminology’ and ‘the Military’ brought us to the following conversation (identifiers have been anonymised): I’m new to the site and wanted to share/receive some opinions about a B.A in Criminology. Now I’m in Canada so it works a little differently than in the U.S, but in terms of study and employment I would assume it’s pretty much the same or very similar. I currently attend University in Ontario and am in my 3rd year of a double major in Criminology and Political Science and I already have a college diploma in Law & Security administration (for those who don’t know, college is lower than ­university in Canada). I feel like I have been given a rude awakening a little while attending this university and taking criminology courses … Is it just me? Or, is Criminology completely useless UNLESS you want to become a basic foot patrol police officer? Because from what I have been searching here in Canada, there is NOTHING, NADA, ZIP for jobs related to Criminology … Everything here wants business or LAW which is different than Criminology. Can any graduates or other students in a similar position, either in the U.S or Canada, provide some feedback or opinion on the matter, as well as employment potential? Thanks

190  James Sheptycki and David Mutimer To which the following reply was received: Perhaps what you are doing would be a good pre-law major, if you were looking into criminal law and wanting to attend to law school. Otherwise, I’m not sure.

To which the original poster replied: I think at what I’m trying to get or look for are options or what else I can do besides being a regular beat policeman or working in a prison. I very well know that both are honourable positions, I personally just don’t want to work rotating night shifts and deal with the scum of the earth on a face to face or daily basis. I’m far more interested in other types of major crimes such as sourcing and prevention methods and would rather work for some type of agency like the CIA or the Canadian version known as CSIS. I would like to hear from any Criminology based grads or current students who will be graduating and any information they could relay would be awesome.

To which the following reply was received: If you want to work for CIA type agencies, CJ/Criminology isn’t what you want to take. At least that’s how it works here in the US, our friends to the north may be different. I’m speaking as a pretty good source, because I do crime/homeland security ­analysis so I know the internal workings pretty well. I think the best route would be the military, that is where most of the intelligence agencies recruit from. Go in as an officer, and try to get into military intelligence. That’s your best route, but that’s no promise. Those positions are few and selective, so you need to find a back up plan.

This revealing conversation gives us our imagined students. We teach in the respective areas of criminology and politics and our research only tangentially intersects around concerns about arms trafficking and gun smuggling. Students are likely to take courses in either of our departments as electives or as part of some sort of combined degree. We are all very aware of the politics of crime as domestic and international issues and how things have shifted in the aftermath of 9–11. Students are looking at their future from the perspective of the global ‘war on terror’. The only geopolitical reality they have ever known is extremely fluid and insecure. Student gossip on the relative merits of different educational qualifications reveals a blurring of the boundaries in thinking about police, security and military-type agencies. It also seems to reveal blithe acceptance that institutional responses to the problems of our time based on military and policing means ought to be considered realistic, adequate and unproblematic reactions to the situation. Such views are reflected in an avalanche of textbooks with titles like Criminology in the Age of Global Terror and International Politics and Global Crime Control or Crime and Terrorism in the Homeland Security Era.

Framing Criminologies of the Military 191 This chapter is an attempt to frame our thinking about crime and the military and is only a small contribution to the burgeoning literature in the area (Delaforce, 2010; Jamieson, 2014; Kramer and Michalowski, 2005; McGarry, 2012; McGarry and Walklate, 2011; Walklate and McGarry, 2015; White, 2011). Our interest in ‘criminologies of the military’ lies at the intersection of several disciplines including international relations, sociology, political science, criminology and socio-legal studies. It has to do with a globally interrelated set of phenomena involving violence, politics and the profit motive, that causes some measure of social harm, which, in turn, invokes strong social reactions in search of security through military and policing means. This is a point of critical departure for thinking about the military and other similar institutions. What do students need to know if they are not to lose their way? When critical thinking is incoherent young people are left naïvely contemplating limited career choices—for example, between being a shopping mall security guard, a police patrol officer or a secret agent. The concerns of policy practitioners and governmental programmers are mirrored in the evolving curriculum of university degree programmes. How does interdisciplinary scholarship inform thinking about the sorts of real-world issues and policy dilemmas our imagined students face? FRAMING CRIMINOLOGIES OF THE MILITARY

Interdisciplinary social science focuses on empirical phenomena. Generally speaking, it begins with exploratory reading and by the process of deduction frames an understanding for the guidance of further empirical inquiry so as to advance the accumulation of knowledge in regard to a specific interest or theme. Novices interested in this particular topic could start by reading an ethnographic account of life in the military. For example, in John Hockey’s Squaddies: Portrait of a Subculture (1986) the reader learns that, from the moment a military recruit enters basic training, s/he begins to learn the u ­ nofficial and the official ways of military life. Among other things, ­Hockey’s picture of rank-and-file military subculture shows that stealing within the ‘primary group’ is considered bad form, but stealing outside of the barrack group is an accepted mode of behaviour, while stealing from the organisation itself is understandable as ‘exacting ones due’. For Hockey, marking out these distinctions is part of an attempt to understand the subcultural routines that makes military organisation possible. In his account, both formal and informal aspects of the culture interweave in the production of the institution as a whole and in the grey area between them there emerges an invitation to deviance. In other words, at the intersection of the formal/informal aspects of military culture there is a potential for rule breaking, rule bending and rule evading. Formal organisational rules are articulated in ideal terms and informal organisational rules are pragmatic; formal rules are for the organisation, informal rules are frequently

192  James Sheptycki and David Mutimer intended to benefit individuals and groups within the organisation (and may or may not work at cross-purposes with formal ones); formal rules adhere to bureaucratic forms of accountability, informal rules (‘work-arounds’) do not and may or may not conflict with the formal ends of the institution. Inevitably in the space between formal and informal organisation lies the opportunity for wrongdoing. Clifton D Bryant’s book Khaki-Collar Crime: Deviant Behavior in the Military Context (1979) structures thinking about crime and the military by drawing distinctions between crimes against property, against persons and ‘against performance’. Additionally, he made the distinction between crimes that are intra-occupational (within the organisation), inter-­ occupational (involving enemy soldiers) and extra-occupational (involving civilians). He also draws attention to the fact that deviance can take place at the ­individual, group or institutional level. Donna Winslow (2006) looked at military culture slightly differently. According to her, we need to understand military organisation from three perspectives simultaneously. She calls the three ways of looking at the military fragmented, differentiated and integrated and they flow from micro level to macro levels (67). That is, the fragmented view shows how individuals cope with the contradictory and ambiguous fragments of the organisation and its culture, the differentiated view aims at an understanding of sub-groups and informal cultures within the organisation, while the integrated view looks at the broad picture and mostly from a formal organisational perspective. She combines these three perspectives in order to give an account of the ‘processes that are set in motion to control the essentially chaotic task of waging war’ (84). Criminologically speaking, all three of the above-mentioned scholars help us to understand military organisation as a potential criminal opportunity structure. Students may find this rather confusing. How can we bring these insights into focus? What can we deduce from this initial selection of readings and how does it help set us up for further inquiry and thinking about ­‘criminologies of the military’? By analysing some of the above ideas we can begin to frame our thinking. First we take the distinction between formal and informal organisation since both formal and informal social practices pervade organisational life in the military. Second is a distinction between criminal acts by individuals, groups or the organisation itself, since action can happen at any of these three distinct ‘levels’. By extension, both formal and informal ways of acting are possible at each of these three levels. Further, thinking about crime and the military involves thinking about complex intra-organisational, inter-organisational and extra-organisational relationships. The first of these involves practices within specific militarytype institutions, the second involves practices between them and the third military practices that affect non-military actors. In terms of overall categorisation, thinking about intra-, inter- and extra-organisational relations

Framing Criminologies of the Military 193 can be either formal or informal and can take place at the individual, group or organisational level. In this way we move from the micro level of social organisation in order to analyse the fragmented and isolated perspective of individuals, up through the differentiated viewpoint of sub-groups, to the macro level of the integrated organisation as a whole. The model is presented in Table 10.1. Table 10.1:  A typology for thinking about organisational deviance Intra-organisational Formal

Informal

Inter-organisational

Extra-organisational

Individual

Individual

Individual

Group

Group

Group

Organisational

Organisational

Organisational

Individual

Individual

Individual

Group

Group

Group

Organisational

Organisational

Organisational

Each cell of this logic table can be loaded with content and the model can be used to begin framing an understanding of ‘criminologies of the military’, which can now be seen not merely as a ‘topic’ but rather as a field of inquiry. For example, the frame sorts formally planned extra-­ organisational crime—for instance, the massacre of civilians during the bombing of Dresden (DeBruhl, 2010)—and other examples of extraorganisational crime of a similar type—for instance, the secret bombing of Cambodia during the Viet Nam conflict (Barrett, 2001). The Chilcot Report found the Iraq War was commenced against formal advice, without serious evidence, lacked proper legal authorisation, and resulted in the expansion of insecurity. How might those findings be worked in the analytical cells in this model? Kramer and Michalowski say the invasion and subsequent occupation of Iraq was comparable to ‘a number of other upper-world crimes’ calling the action part of ‘the longstanding A ­ merican project of making the world safe for international capitalism under the aegis of an American hegemon’ (2005: 446). In terms of the above typology, this amounts to a crime perpetrated by a group of individuals, operating both formally and informally at a macro-institutional level with consequences in the inter-, intra- and extra-organisational spheres. As can be seen, this model has its uses. It helps to sort out the differences between war crimes involving individuals on the battlefield from those involving macro-level decision makers (Mendick, 2016; Rozenberg, 2016). As an orienting frame, it certainly helps to ensure that inquiry is not unduly limited, for example, to discussions about the distinction between ‘state crime’ and ‘war crime’ or talking only about occurrences on the battlefield itself (Criminal Justice Matters, 2010; Kerr, 2008).

194  James Sheptycki and David Mutimer Probably empirical reality does not neatly fit this typology. However, it is an empirical, deductive and useful first step in framing an understanding. It provides a sensitising orientation in a complex field of inquiry. For one thing the categorical distinctions draw attention to fact that boundaries between different institutions are effectively blurred. Inter-operability, co-operation, collusion, confrontation and conflict are all possible interrelations that characterise actors’ behaviour in the field. Academic consideration of police militarisation in America (Kraska, 2001, 2007) has been paralleled in Europe in discussions about paramilitary policing (Verhage et al, 2010; Rantatalo, 2012). The interpenetration of police and military institutions has created new spaces for formal and informal networks at all levels of organisation, which has (sub-)cultural consequences giving a profusion of confused meanings about how people operate within these structures. The killing of Jean Charles de Menezes on the London underground ‘demonstrates the extension of consolidation of militarized law enforcement’, which provides a formal institutional logic capable of rationalising extra-judicial killing (McCulloch and Sentas, 2006). The fusion of policing and national security concerns provides cover for activities which, in most other circumstances, would be considered criminal (McCulloch, 2003, 2004). Moreover, the present period has seen the rise of private military companies operating alongside traditional military institutions. The ongoing career of Erik Prince, founder of Blackwater International in the 1990s, offers a case in point. Blackwater became infamous after the massacre at Nisour Square, Baghdad on 16 September 2007, in which 17 civilians died and many more were gravely injured in what was considered by many to be a war crime (Welch, 2009). By itself this occurrence brings Blackwater under the umbrella of ‘criminologies of the military’. Added to this are indications that Prince was, according to sources with knowledge of his activities, working as a CIA asset. Thus, while his company gleaned more than $1.5 billion in government contracts between 2001 and 2009 and stood accused of a number of criminal acts, it was also acting for CIA and the US State Department (Ciralsky, 2010). According to Jeremy Scahill, the story of private military contractors has ‘become a symbol of the utter lawlessness and criminality that permeates the privatized wing of the US war machine’ (Scahill, 2009; see also Scahill, 2007). Criminologies of the military is so much more than a topic. It is an interdisciplinary field of study which goes well beyond thinking only about state crimes and war crimes by pointing to the blurred boundaries of privatised militarism and the potential for ‘war profiteering’ (Areen et al, 2004; Hartung, 2003; Whyte, 2003). The Stanford Law School sponsored a documentary film titled Iraq for Sale; the war profiteers, which paints a picture of ‘the connections between private ­corporations making a killing in Iraq and the decision makers who allow them to do so’.1 1 http://cyberlaw.stanford.edu/our-work/topics/iraq-sale.

Framing Criminologies of the Military 195 The privatisation of security provision includes both ‘high policing’ and ‘low policing’ (Brodeur, 2010; Johnston and Shearing, 2002; Wood and Dupont, 2006; O’Reilly 2010; O’Reilly and Ellison, 2006) and this too has consequences for how we frame ‘criminologies of the military’. High policing is social control in the particular interests of political, social and economic elites. Low policing is basic order maintenance; it describes the more limited sphere of policing function concerned with the everyday life of the community, the general social interests ‘of all’, and is somewhat­ insulated from the wider realm of politics. The increasingly blurred boundaries between public and private organisations in the delivery of security services at the ‘high level’ of corporate and national security and the ‘low level’ of everyday social control has consequences for the militarisation of domestic policing (Parenti, 2003) and of military operations outside of the ‘homeland’ (Kaplan, 2009). New concepts have emerged for talking about varieties of integrated, differentiated and fragmented practices and processes that run in between the micro and macro levels of institutional military culture. In this murky milieu are ample opportunities for crime, from cigarette smuggling, to child sexual exploitation at the individual level, to crimes taking place at a more macro-institutional level (Jamieson, 2014; Walklate and McGarry, 2015). Within the field of ‘criminologies of the military’ are yet other kinds of question. Military institutions are ‘totalising’ in the sense that individuals within them tend to inhabit a rather exclusive social world bound by the traditions of the military ‘job’. To be part of the military is to share commitment, loyalty, time and energy with others so engaged and is highly gendered. This can have criminological consequences for military families and this points to another extra-organisational dimension of crime and the military. Mady Wechsler Segal reveals family units in the military to be ‘crucibles of stress’ (Segal, 1986). To the demands put upon military ­families—geographic mobility, foreign residence, family separation—must be added the normal demands of the killing job—which obviously include risk of personal injury and death—and the accompanying psychic consequences. Changing gender role expectations within the military mirror society at large and these general shifts in labour market participation and family patterns affect military members, as evidenced in the advent of duel-service couples and active-duty mothers. Incidences of domestic violence and sexual assault have been well documented in the context of the American military ­(Mercier and Mercier, 2000; Murdoch, 1995). Gendered violence in the military has spill-over effects in the broader society (Adelman, 2003). This can take extreme forms. For example, there is the case of Colonel Russell Williams, a member of the Canadian military, who was convicted of murdering two civilian women, sexually assaulting two others and committing scores of break-ins in which he stole lingerie. During his trial, the prosecution submitted as evidence photographs of Colonel Williams wearing some of the stolen underwear. Williams obsessively catalogued all of his crimes,

196  James Sheptycki and David Mutimer including the murders. At the time of his apprehension, he was a 23-year veteran of the Canadian military, recognised for his extensive and ostensibly honourable service (Rankin and Contenta, 2010). Observing this last example takes our consideration of ‘criminologies of the military’ to the disciplinary boundaries of psychology and psychoanalysis, sex and gender studies. Unfortunately, space considerations preclude full exploration of this tangent. In this section, we have aimed to show our imagined students the wide range of issues that come into view when looking at the military apparatus as a criminal opportunity structure. In doing so, our considerations have moved from the micro level of individuals and groups up to the macro level of military institutions themselves and have looked at a variety of ways that crime may happen within or between military-type institutions and with regard to institutions external to the organisational military milieu. Framing our thoughts about ‘criminologies of the military’ in terms of a complex opportunity structure for all sorts of criminal behaviour challenges the assumption that these institutions—along with the police and other criminal justice agencies—ought to be given unchecked authority in the provision of security. A lot more could be loaded into the analytical frame we tentatively advance here, but there is sufficient material to demonstrate that a great many criminal phenomena potentially lie within it. There is every reason to doubt the proposition that democratic liberty and human security can be enforced by military means. VARIETIES OF REALISM?

Reflecting on a phrase like ‘criminologies of the military’ soon shows there is more to the picture than first meets the eye. There are other ways to frame an understanding besides the one we have come up with. Other images of these institution are dominant. As Laurel Powel (2014) observes, there is a glorification of the military in popular culture. Our imagined students are immersed in a pop-cultural complex of television, movies, news media, recruitment advertising and video games in which some people appear as lions and heroes others as vermin and villains and still others as helpless victims and collateral casualties. The academic field is viewed through this distorting lens. And yet politicians, policy makers and their advisers frequently justify their decisions on the grounds of ‘realism’. Reflecting on our pedagogy and comparing notes about teaching in our respective disciplines we realised that in both there is debate about the notion of ‘realism’ and what it portends. The trouble is, the terminology seems confusingly different in criminology and political science. The questions raised by philosophical realism are so controversial that no account of the term can satisfy all participants in debates about its meaning. Realism is a word with more than one possible definition. In international relations and political science the

Framing Criminologies of the Military 197 term is often associated with theories about the application of power in the international system of states. In criminology many people who use the term emphasise the application of force and the principle of deterrence power in crime control. At one level then, there is theoretical affinity across the two disciplines, which concerns the degree of centrality accorded to force and coercion as means. In both political science and in criminology many people use realist rhetoric to rationalise the ‘carry a big stick’ school of human affairs. For the sake of simplicity, we will refer to this broadly as ‘right realism’. As teachers in our respective disciplines we are very aware of the many subtleties and nuances of theoretical debate. Idealism, liberalism, neoliberalism, social constructionism, feminism, Marxian political economy, postcolonial theory and postmodern epistemological perspectivism are just some of the alternative theoretical formulations for academic debate in the social sciences. There are even different kinds of realist. In criminology, since the 1990s a bifurcation between ‘right realists’ and ‘left realists’ has been recognised (Lowman and MacLean, 1992; Matthews, 2014). In political science realist debates are even more complex (Mearsheimer, 2002; Miller, 2016). In our teaching we take great pains to thoroughly dissect and interrogate these various theoretical positions and locate our own work in relation to them. In political science and in criminology there is a notable fragmentation into competing theoretical ‘camps’ and students must find their ways between them in order to demonstrate specific disciplinary knowledge. This careful reasoning takes place in a wider social and political context, which is saturated with ‘crisis talk’ and which affects the way scholarly thinking is received by politicians, policy makers, practitioners, the general public and students. Academic knowledge appears as fragmented and characterised by a multitude of voices all chiming amidst disagreement about who is allowed to speak about issues of power, in what terms and on what grounds. Thinking about critical pedagogy as it might be experienced by a group of imagined students studying both criminology and political science, it occurs to us that our own sophistication can readily dissolve into incoherence, inducing confusion and panic as our students focus on the pragmatic concern to pass the exams! In everyday language realism means to focus on ‘the way things really are’. At a very general level, realism purports to accurately describe a reality that is presupposed to exist apart from its description (and is persuasive for all that). Both outside and inside the confines of scholarly debate about crime and/or global affairs, the term realism resonates powerfully. Realism is opposite to idealistic or utopian thinking and any alternative to realism is implicitly unrealistic. This helps to explain the commonality and persuasiveness of ‘tough on crime’ and ‘big stick diplomacy’ observable in popular political rhetoric. In a chaotic situation characterised by uncertainty and great anxiety, simple solutions are attractive and right realists in our

198  James Sheptycki and David Mutimer respective disciplines seem to have them. It is all about successfully labelling others ‘suitable enemies’ (Christie, 1986). In political science realism is often associated with realpolitik, a way of acting in the international system of states that tends to eschew international law and convention while simultaneously fetishising state and military power. In criminology realism is often associated with zero-tolerance law enforcement, a way of policing and controlling suspect populations that emphasises intensive surveillance and ready use of force. Some of the most influential voices in right realist criminology—James Q Wilson, Charles Murray, John J Dilulio Jr—are political scientists. Some of the most influential voices in the international politics of crime control—Louise Shelly, Phil Williams, Mark Galeotti—are no less ‘realist’ in their orientation. What links right realists in both criminology and political science is a common belief in the utility of power, control, deterrence and use of force in shaping social and political order, and we think that this ought to be emphasised in the interdisciplinary pedagogy that connects the two. That is not least because, in a globalising world, issues of crime and punishment are both international and domestic issues. They have become issues of global governance (Bowling and Sheptycki, 2012; Kreuder-Sonnen and Zangi, 2014; Lettinga and van Troost, 2013; McCulloch, 2003, 2004). Our imagined students already learn that right realism presents a false dichotomy. In both political science and in criminology, right realists tend to articulate a Manichean version of the world, with ‘good guys’ and ‘bad guys’ and a clear sense of mission. Nevertheless, whether it is ‘zero tolerance policing’ or ‘international power politics’, as articulated in popular discourse and culture these reductive views have the appeal of certainty. Challenging such certainties means taking on the popular understandings our imagined students already harbour. The field of ‘criminologies of the military’ proves to be a pedagogic obstacle course for interdisciplinary thinking. It is also an occasion for us, as co-authors of an essay on the topic, to compare notes on common research interests. As it turns out, there are none, or almost none. At a stretch our research intersects within the frame of ‘criminologies of the military’ in only one respect: the global arms trade. There are only ‘six degrees of separation’ so it is not entirely surprising to find we have common colleagues associated with the Small Arms Survey (SAS). The SAS is a driving force in thinking about the worldwide social impact of the failure of global gun control. The SAS is notably interdisciplinary with ‘expertise in security studies, political science, law, economics, development studies and sociology [collaborating] with a network of researchers, partner institutions, non-governmental organizations and governments in more than 50 countries’ (Karp, 2009: 3). The policy domain staked out by the SAS is highly controversial. The US has adopted the most laissez-faire attitudes towards private gun ownership anywhere in the world and American policies project this worldwide. In the US gun policies are bankrolled by the National Rifle Association, which also

Framing Criminologies of the Military 199 has an established track record working as an international NGO (Cukier and Sheptycki, 2012; Squires, 2014). Arms manufacturing and trade offers just the sort of criminal opportunity structure we have been talking about here. For example, Andrew Feinstein’s exposé of the arms trade reveals that transnational weapons dealers, large and small, legal and illegal, are similar to handlers of other commodities, like licit and illicit drugs (Feinstein, 2012). In both gun and drug smuggling, the players hide their businesses behind numbered accounts and shell companies based in offshore jurisdictions. Feinstein’s main targets are the ‘big fish’—giant corporations like BAE Systems, McDonald Douglass, Saab—and the weapons are big and expensive. One example he exposes is the £40 billion Al Yamamah arms deal between BAE and Saudi Arabia, arguably ‘the most corrupt transaction in trading history’. He goes on to look at the illegal payments made by arms dealers like Ukrainian-Israeli Leonid Minin, who supplied Liberia with weapons worth millions of dollars in return for diamond and timber concessions. He also casts light on arms dealers like Adnan Khashoggi and Yoshio Kodama (also known as ‘The Monster’, a documented Japanese war criminal). Perhaps the most famous is the opportunistic Viktor Bout, the so-called ‘Merchant of Death’, who provided the inspiration for Nicholas Cage’s character Yuri Orlov in the film Lord of War. Legendary individuals provide the basis of popular understanding, so while many people might have some notion of global arms dealing, they are perhaps more likely to think in popculture terms than they are to think of corporations like McDonald Douglas or Boeing. Feinstein documents the revolving door between government and the arms industry, for instance pointing to the more than 30 arms industry executives and lobbyists given senior positions in the George W Bush presidency. He argues that serious corruption flourishes under the cover of national security, for example showing that the government of South Africa spent 6 billion US dollars on weapons at a time when the president said the country was too poor to purchase antiretroviral drugs for the treatment of the country’s estimated 6 million people living with HIV-Aids. In this book and elsewhere he has argued that the global arms trade accounts for about 40 per cent of corruption in all world trade (Feinstein, 2012b). Ultimately Feinstein is an advocate for a coherently regulated, legitimately financed, effectively policed and transparent global arms industry. Right realists, together with NRA enthusiasts, would no doubt call that utopian. There are so many other cases that fit into the frame we have sought to develop and explore in this chapter. For example, in January 2014 members of a group of serving and/or former British Army soldiers were convicted at Woolwich Crown Court of gun smuggling into the UK (Peachey, 2013). The weapons were military-issue handguns, bought illegally through an Italian middleman living in Germany. The case involved the transfer of five weapons, together with a quantity of cocaine, in privately owned vehicles from continental Europe to the UK. It is evidence of a structural opportunity and

200  James Sheptycki and David Mutimer is not unique. According to the BBC (2008), gun smuggling is ‘common’ in the British Army, a claim based on an interview with Shane Pleasant and Ben Whitfield who had been convicted for gun smuggling. According to Pleasant: In Iraq the lads were seeing Iraqi police officers, buying them off them, buying them off the civilians and then they were paying people to smuggle them back in tanks, in Warrior armoured personnel carriers, Land Rovers, tool boxes or any kind of equipment that would get brought back from the operational theatre … It were that easy to get them … There has been a few people that’s been involved in it, there’s always a way to get your stuff out of a country if you want to get it out without getting caught … If you know the right people—you’re laughing. It were a guy who I knew at work who got me mine (quoted in BBC, 2008).

This low-level gun smuggling is an example of ‘sqauddy subculture’ that Hockey (1986) described, where informal group ties within the army institution enable individuals to exploit the work environment to ‘exact one’s due’. Feinstein’s book uncovers examples of systemic and institutional crime perpetrated by individuals and small groups operating informally at the strategic heights of the global system. Squaddy gun-smugglers are of a different order. But both qualify as subjects under the heading of ‘criminologies of the military’. We need to emphasise the breadth of the field and make it analytically coherent. There is more than mere description of individual cases. Critical analysis corrodes right realist assumptions involving the military that simplistically shape thinking about the domestic and global governance of crimes. DISCUSSION AND CONCLUSION

The interdisciplinary gap between political science and criminology is not easy to span. In our case, one fellow is focused on guns, crime and social order (Sheptycki and Edwards, 2009) while the other is more interested in political evasions surrounding global arms control (Mutimer, 2000, 2006, 2009). The difference of scale is somewhat confusing and, because our research interests are usually articulated in different theoretical and disciplinary idioms, the connections are often lost. Here we have sought to analytically frame ‘criminologies of the military’ as a common field. This has shown something all too often unremarked about military-type institutions and their relation to the global system—that they are, from top to bottom, massive opportunity structures for crime. We have sought to challenge assumptions and beliefs. In the contemporary period there is great concern about the military and insecurity. There are good reasons to qualify any mandate for the military use of force—however justifiable, reasonable or realistic politicians, practitioners and policy makers deem it to be. Learning the skills necessary for critical interdisciplinary research and thinking is an important step in confronting

Framing Criminologies of the Military 201 real-world issues and policy dilemmas. Often students may feel that critical theory does not necessarily translate into a ready and pragmatic basis for career planning. It does, however, provide a way for young people to raise their perspective on the world above the level of farce and give it at least the grace of tragedy. In drawing to a close, we are reminded of the words of Max Weber, who said in his essay Politics as a Vocation: He who lets himself in for politics, that is, for power and force as means, contracts with diabolical powers and for his action it is not true that good can follow only from good and evil only from evil, but that often the opposite is true. Anyone who fails to see this is, indeed, a political infant (Weber, 1946: 123).

Reflecting on the field of ‘criminologies of the military’ casts doubt on the proposition that military institutions have an unambiguously positive relationship to global insecurity. If this essay in interdisciplinary social science fulfils an educative aim it might be that it piques an interest, here and there, for students to equip themselves with knowledge and critical analytical skills in order to challenge deeply held assumptions and shape their futures in a different way. It is nothing more than a point of departure for reflecting more deeply about one of the important problems of our time and how best to respond. REFERENCES Adelman, Madelaine (2003) ‘The Military, Militarism and the Militarization of Domestic Violence’ 9(9) Journal of Violence Against Women 118–1152. Areen, Michael, Gilmer, Graham and Schwartz, Eric (2004) ‘War Profiteering in Iraq: Corporate Contracts, Private Military Companies and the National Resource Curse’, Stanford University, Ethics of Development in a Global Environment, unpublished paper. Barrett, N (2001) ‘Holding Individual Leaders Responsible for Violations of ­Customary International Law: The US Bombardment of Cambodia and Laos’ (2000–2001) 32 Columbia Human Rights Law Review 429–76. BBC (2008) ‘Gun Smuggling “common” in UK army’, http://news.bbc.co.uk/go/pr/ fr/-/2/hi/uk_news/7366279.stm. Bowling, B and Sheptycki, J (2012) Global Policing (London, Sage). Brodeur, J-P (2010) The Policing Web (Oxford, Clarendon). Bryant, CD (1979) Khaki-Collar Crime: Deviant Behavior in the Military Context (New York, The Free Press). Christie, Nils (1986) ‘Suitable Enemy’ in H Bianchi and R van Swaaningen (eds), Abolitionism: Towards a Non-repressive Approach to Crime (Amsterdam, the Free University Press). Ciralsky, Adam (2010) ‘Tycoon, Contractor, Soldier, Spy’, Vanity Fair Magazine, January. Cukier, W and Sheptycki, J (2012) ‘Globalization of Gun Culture: Transnational Reflections on Pistolization and Masculinity, Flows and Resistance’ 40(1) International Journal of Crime, Law and Justice 3–19.

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Framing Criminologies of the Military 203 McCulloch, J and Sentas, V (2006) ‘The Killing of Jean Charles de Menezes: HyperMilitarism in the Neoliberal Economic Free-Fire Zone’ 33(4) Social Justice 92–106. Mearsheimer, JJ (2002) ‘Realism, the Real World and the Academy’ in Michael Brecher and Frank P Harvey (eds), Realism and Institutionalism in International Studies (Ann Arbor, The University of Michigan Press) 23–33. Mendick, R (2016) ‘Outrage as war crimes prosecutors say Tony Blair will not be investigated over Chilcot’s Iraq war report—but British soldiers could be’ The Daily Telegraph, 2 July. Mercier, PJ and Mercier, JD. (2000) Battle Cries on the Home Front: Violence on the Home Front (Springfield, Charles C. Thomas). Miller, D (2016) ‘How “Realistic” Should Global Political Theory Be? Some Reflections on the Debate So Far’ 12(2) Journal of International Political Theory 217–33. Murdoch, Maureen (1995) ‘Women Veterans’ Experiences with Domestic Violence and With Sexual Harassment While in the Military’ 4 Archives of Family M ­ edicine 411–18. Mutimer, David (2000) The Weapons State: Proliferation and the Framing of the State (Boulder, Lynne Rienner). Mutimer, David (2006) ‘A Serious Threat to Peace, Reconciliation, Safety, Security: An Effective Reading of the United Nations Programme of Action’ 27(1) Contemporary Security Policy 29–44. Mutimer, David (2009) ‘My Critique is Bigger than Yours; Constituting Exclusions in Critical Security Studies’ 9(1) Studies in Social Justice 9–22. Nelken, David and Levi, Michael (1996) ‘The Corruption of Politics and the Politics of Corruption’ 23(1) Journal of Law and Society 1–17. O’Reilly, Conor (2010) ‘The Transnational Security Consultancy Industry: A Case of State-corporate Symbiosis’ 14(2) Theoretical Criminology 183–210. O’Reilly, C and Ellison, G (2006) ‘Eye Spy Private High: Reconceptualizing High Policing’ 46(4) British Journal of Criminology 641–60. Parenti, C (2003) The Soft Cage: Surveillance in America from Slavery to the War on Terror (New York, Basic Books). Peachey, P (2013) ‘Exposed: The army’s gun-smuggling soldiers’ The Independent, 21 January. Powell, L (2014) ‘Glorification of the Military in Popular Culture’ in Maximilian C Forte (ed), Good Intentions: Norms and Practices of Imperial Humanitarianism (Montreal, Alert Press). Rankin, Jim and Contenta, Sandro (2010) ‘Col. Russell Williams; a serial killer like none police have seen’ Toronto Star, 18 February. Rantatalo, O (2012) ‘The Miscellany of Militaristic Policing: A Literature Review’ 7(1) Journal of Policing, Intelligence and Counter Terrorism 51–65. Rozenberg, J (2016) ‘The Iraq war inquiry has left the door open for Tony Blair to be prosecuted’ The Guardian, 6 July. Scahill, Jeremy (2007) Blackwater: The Rise of the World’s Most Powerful­ Mercenary Army (New York, Nation Books). Scahill, Jeremy (2009) ‘The Blackwater plot deepens’ The Guardian, 11 November. Segal, Mady Wechsler (1986) ‘The Military and the Family as Greedy Institutions’ 13(1) Armed Forces and Society 9–38.

204  James Sheptycki and David Mutimer Sheptycki, J and Edwards, A (eds) (2009) ‘Special Issue: Guns, Crime and Social Order’ 9(3) Criminology and Criminal Justice. Squires, P (2014) Gun Crime in Global Contexts (London, Routledge). Verhage, A, Terpstra, J, Deelman, P, Muylaert, E and van Parys, P (2010) ‘Policing in Europe’ 3 Journal of Policing Studies, Special Issue. Walklate, Sandra and McGarry, Ross (2015) Criminology and War: Transgressing the Borders (London, Routledge). Weber, M (1946) ‘Politics and a Vocation’ in Hans Gerth and C Wright Mills (eds), From Max Weber (New York, The Free Press). Welch, M (2009) ‘Fragmented Power and State-corporate Killings: A Critique of Blackwater in Iraq’ 51(3) Crime Law and Social Change 351–64. White, Adam (2011) The Politics of Private Security: Regulation, Reform and Re-legitimation (London, Palgrave). Whyte, Dave (2003) ‘Lethal Regulation: State-Corporate Crime and the United Kingdom Government’s New Mercenaries’ 30(4) Journal of Law and Society 575–600. Winslow, D (2006) ‘Military Organization and Culture from Three Perspectives’ in G Caforio (ed), Social Sciences and the Military: An Interdisciplinary Overview (London, Routledge) 67–88. Wood, J and Dupont, B (2006) Democracy, Society and the Governance of Security (Cambridge, Cambridge University Press).

Index Abu Ghraib: abuse at, 155–6 degradation at, 156 ‘enemy’ and, 157 abuse: bastardisation and, official comments on, 141–2 bureaucracy and, 155–9 civilian prisons, in, 159 explicit and implicit direction of, 155 prison officers, effect on, 158 systemic aspect of, 158–9 accountability: institutional and individual responsibility, 138 militaries and, 6–7 advancing militarism, 43–64 authoritarian neoliberalism and, 45 predicate events, effect of on, 44 regulation of governance and, 44–5 anomie, 155, 162 arms dealers and arms trade, 198–9 Australian Defence Force (ADF): allegations of bastardisation and initiation rituals, 133–4 review and reform of, 134, 135–6 Australian Defence Force Officer Training Academy and University (ADFA), 135–8 Australian military forces, treatment of homosex, (WWII), 170–2 Australian military justice, 172–7 crime types, 173 origins of, 172–3 authoritarian and liberal democratic states distinguished, 53–4 authoritarian neoliberalism and expansion of militarism, 45 Babangida, General, involvement in drug trade (Nigeria), 73–4 ‘bad apples’ account (Skype Affair), 143–4 ‘banality of evil’ thesis, 155 bastardisation, 133–4, 139–40, 143 abuse and, official comments on, 141–2 ADF and, 133–4 Bosnia: British Army practice in, 108–9 British Army’s crime fighting role in, 97–9 economy, military law enforcement’s effect on, 109

EUFOR command in, 105 EUFOR mission in, 106 ICTY’s effect on peace and reconciliation, 109 law enforcement in, 96 NATO’s peace keeping role in, 97–8 organised crime, British Army’s fight against, 99 British Army: Bosnia, in, 97–9, 108–9 ISR, involvement in, 102 Kosovan minorities and, 100 Kosovo, involvement in, 99–102 law enforcement role, in, 96 operational style, 100–1 organised crime (Bosnia), fight against, 99 organised crime (Kosovo), control of, 101–2 British Army practices, 102–8 Balkans, in, Northern Ireland’s influence on, 105–6 Bosnia, in, 108–9 democracies’ use of force and, 103 Kosovo, in, 109–10 organisational approach, 105 political support and influence, effect of, 104–5 real world problems, mitigation of, 102 British police and covert ethnography (Holdaway study, 1983), 24–5 Bryant, Clifton D: Khaki Collar Crime: Deviant Behaviour in the Military Context (1979), 18–19, 21 bureaucracy and abuse, 155–9 camouflage, 144–6 achievement of, 144–5 definition, 144 military context of, 145–6 misrecognition and, 145 civil-military relations, 136–7 civil society, military society mimics, 146 civil wars, private military companies’ participation in, 84 civilian law, homosex offences prosecuted under (Aus), 176–7 civilian life: PMCs’ return to, 85–6, 89–92 service personnel’s return to, 31–2

206  Index civilian prisons, abuse in, 159 ‘clash of civilizations’ thesis (1997), 52–3 class, status and structure and military personnel, 29–32 class and racial struggle and incarceration, 164 closed institutions as militaries, 6 Cold War and demobilisation, 83–4 Colombian cocaine industry, 76 commissioned officers (US and Aus), penalties for homosexuality, 175 complementarity: criminal law, harmonisation of, 124–5 ICC jurisdiction and, 122–5 international prosecutions and, 123–4 purpose and object of, 130 ‘complementarity test’, British case law, 128–9 conceptual/integrative complexity, 165–6 ‘core crimes’ jurisdiction, 115–16, 120–1 (case law) corporate crime, ‘dark side’ of, 139 correctional officers see prison officers correctional sector, privatisation of, 163–4 countershading (camouflage), 144–5 courts martial used for homosex cases, (US), 181 crime: military culture and distinguished, 192 organisations’ influence on, 6 organised see organised crime ‘square of crime’, 28 state-organised (W. Africa) see state-organised crime (W. Africa) ‘take crime seriously’, 27, 29 violent, 56 war and warfare and, 7–8 crime-control initiative in Guinea-Bissau, 70–1 crime-fighting, military role in, 95–113 criminal activity and war fighting, 2 criminal offences, scope of, 175–6 criminalisation of PMCs, 88 criminality: military, of, 2 military service and (literature search), 33 PMCs, of, 86–7 criminological engagement and military institutions, 21 criminological knowledge, 33–4 criminological research, 34 criminologies of the military: categorisation of, 192–4 framing, 191–6 literature of, 189–201 realisms of, 196–200 scholarly inquiry into, 189–201

criminology: disciplinary, 19, 20 realism, 198 research into, 27 critical criminology, 4 power, and, 8 ‘critical military studies’, 18 cultural institutions and militarism, 57, 58 culture and misconduct, military, 140 Dayton agreement (1995), 97 dazzle (camouflage), 144 decision-making, prosecutorial by state and ICC, 122 decision-making process (UK) for military operations, 107–8 defence abuse, 136–8 degradation at Abu Ghraib, 156 demobilisation and Cold War, 83–4 democracies’ use of force and British Army practice, 103 denial, 142–4 collective, 142 injury, of, 141–4 offenders’ responsibility and, 142–3 responsibility, of, 143–4 deviance, 26 normal, 26 organisational, 193 (fig) sociology of and military criminology, 5 work place and military criminology, 56 deviant knowledge, 32–4 Digital Online Life and You project (DOLLY) (University of Kentucky), 161 ‘dirty birth’ narrative, 48 discharge: homosex, used for (US), 180 homosexuality and, 183–4 disciplinary criminology, 19, 20 Drljača, Simo, effect of death of, 108–9 economic crimes (Bosnia and Kosovo), 102 economic crisis creates social crisis, 56 ‘end of history?’ thesis (2006), 52–3 enemy, 156–7 Abu Ghraib and, 157 enforcement: international enforcement introduced, 118 national military codes of, 117–18 England, Lynndie, 155, 160 ethnic cleansing, 55, 98 ethnography: application of, 23 autoethnography, 22 covert and British police, (Holdaway study, 1983), 24–5

Index 207 definition, 22–3 overt, 25–6 ethnography and military institutions, 22–6 examples of, 23–4 European Forces (EUFOR): Althea Mission, 99 Bosnia, in, 105, 106 exclusion, foundational, 48–9 expansion of militarism: authoritarian neoliberalism and, 45 predicate events’ effect on, 44 regulation of governance, 44–5 Federal Prison Industries (Unicor), 162 formal justice and homosexuality (US and Aus), 175 ‘Geography of Hate’ (Humboldt State University study), 161 global arms trade, 198–9 Global South and Global North and military crime, 35–6 governance, regulation of and expansion of militarism, 44–5 Guantanamo Bay, 153–4, 156 Guinea-Bissau (W. Africa), 69–72 background to, 72–3 crime control initiatives lacking, 70–1 drug seizures, 70 International Crisis Group report (2008) on, 69 Gulf War: American public relations, and, 52 psychological operations (psyops), 52 guns: low-level gun smuggling (UK), 199–200 ownership (US), 161–2 heat maps (hate speech), 161 Holdaway study (1983) (covert ethnography), 24–5 homosex and homosexuals: Australian approach and guidelines, 182 Australian military treatment of, 170–2, 173–4 courts martial, use of (US), 181 discharges, use of and (US), 180 examples of (US and Aus), 177–8 exemptions for prosecutions, 180 experience of (US and Aus), 177–82 legitimacy of use of force and (Aus), 179 military culture (WWII) and, 169–88 offences, civilian law used for, (US and Aus), 176–7 officers’ treatment of, 179–80 penalties for (US and Aus), 174 psychiatry and, 180, 181

self-reporting and, 183 US approach to, 181–2 US military forces’ treatment of (WWII), 170–2, 173–4 US sailors and, 180–1 violence and (US and Aus), 178–9 homosexuality: Australian approach and guidelines, 182 discharge and, 183–4 false accusations of, 183 formal justice and (US and Aus), 175 officers’ penalties for (US and Aus), 175 Procedure for the Disposition of Homosexuals (1943) (US), 180 state security and, 183 ‘homo-sexuality and other perversions’ (Australian guidelines, 1944), 182 humiliation, 152, 156, 160, 171 punishment, as, 162 illegal logging and illicit economic activities (Bosnia), militarised law enforcement’s effect on, 109 Implementation Force (IFOR), 97–8 incarceration and class and racial struggle, 164 ‘incubator baby story’, 52 individual responsibility and institutional accountability, 138 injury, denial of, 141–4 Instructions for the Government of Armies in the United States in the Field (1863), 117 intelligence and retribution, 153–5 Intelligence, Surveillance and Reconnaissance unit (ISR), British Army involvement in, 102 inter-ethnic violence (Kosovo), 100 international courts’ jurisdiction, 120 International Criminal Court (ICC), 115–16 complementarity and jurisdiction, 122–5 international prosecutions by, 122–3 jurisdiction of, 87, 115–16, 122–5 state’s prosecutorial decision-making and, 122 universal jurisdiction exercised by, 121 international criminal law, 115–31 application of, 115 complementarity and, 124–5 enforcement of, 115–16 international order, 119–20 International Criminal Tribunal for Rwanda (ICTR), 115–16 International Criminal Tribunal for the Former Yugoslavia (ICTY), 98, 115–16 peace and reconciliation, effect on (Bosnia), 109

208  Index International Crisis Group report 2008 (Guinea-Bissau), 69 international human rights and military crime, 8–9 international intervention (Bosnia and Kosovo), 103 international prosecutions: complementarity and, 123–4 ICC, by, 122–3 states, by, 122–3 interrogation, 153–4 torture and, 154 uncertainty and, 154–5 irruptive emergence narrative, 50 irruptive security spectacle, 48–51 examples of, 49 jurisdiction, 120–1 American military law, of, 171 ‘core crimes’, over, 115–16, 120–1 (case law) definition, 120 ICC, of, 87, 115–16, 122–5 international courts, of, 120 ‘universal jurisdiction’ see ‘universal jurisdiction’ Kaplan on state-organised crime (W. Africa), 66–7 khaki collar crime, 5, 17–42 Clifton D Bryant on, 18–19, 21 Kosovars (Kosovo Albanians), 99–100, 109–10 Kosovo: British Army practice in, 109–10 British Army’s involvement in, 99–102 inter-ethnic violence, 100–1 law enforcement in, 96 minorities see minorities (Kosovo) NATO involvement in, 99–102 organised crime, British Army’s control of, 101–2 US troops in, 101 Kosovo Force (KFOR), 100–1 labelling theory and PMCs, 88 law enforcement: Bosnia and Kosovo, in, 96 British Army’s role in, 96 military forces and, 2 war crimes and, 2 liberal democracy: militarism and, 55–8 ‘warrior politics’ and, 54 liberal democratic and authoritarian states distinguished, 53–4 liberalism, 49, 54, 55–6 authoritarian rule and, 44, 53, 58

neoliberalism see neoliberalism political, 43, 47 liberalism and ideological coup, 55 Lieber Code (1863) (US), 117 ‘lone wolf terrorism’, 1–2 ‘mentally-unfit’ status (homosexuality), 183 mercenaries as PMCs, 86–7 mercy killing in armed conflict (Canadian case law), 127–8 ‘militainment’, 57–8 militaries: accountability and, 6–7 closed institutions, as, 6 militarisation, 4 advancement of, 55 definition, 10 expansion of, 50 means of, 48–58 police agencies, of, 46 militarised law enforcement (Bosnia): Bosnian economy and, 109 illegal logging and illicit economic activities, effect on, 109 militarism, 1–2 advancing see advancing militarism American, 59 cultural institutions, 57, 58 definition, 47 expansion of see expansion of militarism features of, 48 ideological, 51–5, 59 liberal democracies and, 55–8 means of, 48–58 post-9/11, 53 public resources, use of as, 46–7 shallow, 46 sovereignty and, 48–51 military: codes, enforcement of, 117–18 commanders’ liability, 118 communities, 159–62 conventions and norms, 58 counter-crime efforts, 96 criminality of, 2 criminology of see criminologies of the military effectiveness, 137 ethos, 57, 59–60 families, demands on, 195 governance, 136–8 institutional aspects, 137 misconduct and culture, 140 popular culture and, 2, 57, 91, 196 scandals, effect of, 137–8 socio-political setting of, 19 violence in see military violence see also specific headings

Index 209 military crime: Global South and Global North and, 35–6 international human rights and, 8–9 military criminology, 4–5 scholarship of, 4 sexual exploitation and rape and, 6 sociology of deviance and, 5 workplace deviance and, 56 military culture, 137 fragmented, differentiated and integrated perspectives (Winslow, 2006), 192 homosexuality and (WWII), 169–88 military forces and law enforcement, 2 Military Industrial Complex (MIC) and Prison Industrial Complex (PIC), 162–4 military institutional violence, 159–60 military institutions: class, status and structure of, 29–32 criminal research examples, 26 criminological engagements and, 21 ethnography and see ethnography and military institutions personnel of see personnel of military institutions military involvement: narcotics and drug trade (Nigeria), 72–4 narcotics and drug trade (W. Africa), 68 military law, 115–31 American, jurisdiction of, 171 military life and culture, account of, 191–2 ‘military masculinity’, 31–2 ‘military meta-physics’, 47 military operations: implementation of (US and UK), 107 UK decision-making process for, 107–8 military penality, 151–68 non-violent, 164–5 recruitment of personnel and, 157 military personality, 137 military personnel (UK), background of, 30–1 military personnel (US): age of, 160 class, status and structure of, 29–32 geographical origin of, 160 poverty of, 160 military practice, organisational, 105 military prisons, structure of, 163 military role in crime fighting, 95–113 military sentences, inconsistency of (US and Aus), 174–5 military service and criminality (literature search), 33 military society mimics civil society, 146 military sociology, 17–18, 27 definition, 17 literature on, 17–18

military sovereignty in civilian space, 50 military trials (Aus and US), 173 military violence, 133–50 ‘dark side’ of, 139–40 discussion of, 139 spill-over effects, 195–6 mimicry (camouflage), 145–6 military society’s of civil society, 146 minorities (Kosovo): British Army’s protection of, 100 displacement of, British Army’s failure to prevent, 109 misrecognition and camouflage, 145 murder in Afghanistan, (British case law), 128–9 narcotics and drug-trade (Guinea-Bissau), decline of, 71–2 narcotics and drug-trade (Nigeria): case study, 72–4 military involvement in, 72–4 General Babangidas’ involvement in, 73–4 narcotics and drug-trade (W. Africa): drug seizures in Guinea-Bissau, 70 military involvement in, 68 state legitimacy, 75–6 narcotics and drug-trafficking in West African states, 67 national criminal law and complementarity, 124–5 ‘national defender’ status and returning PMCs, 91 National Drug Law Enforcement Agency (NDLEA) (Nigeria), 72, 74 national military codes: enforcement of, 117–18 examples of, 117 history of, 116–17 national security panic, 56 NATO: Kosovo, involvement in, 99–102 peace-keeping role in Bosnia, 97–8 negligent manslaughter in armed conflict, (Australian case law), 126–7 neoconservatism, 53 neoliberalism: authoritarian or disciplinary, 56 private security labour market and, 85 neutralisation of responsibility, 142–3 Nigeria, 72–4 narcotics and drug-trade case study see narcotics and drug trade (Nigeria) 9/11 (USA): new order of terror, as, 51–2 post-9/11 militarism, 53 1990s, private military companies, use of in, 84 Nisour Square massacre (2007), 87–8

210  Index Northern Ireland: military experience influence on British Army experience in Balkans, 105–6 relative deprivation and, 28 offender, responsibility of and denial, 142–3 ‘officer/enlisted bifurcation’, 29–30 officers, homosex, treatment of, 179–80 official reporting of criminal offences (US and Aus), 175–6 organisational deviance, 193 (table) organisations, influence of on crime, 6 organised crime: British Army’s control of (Kosovo), 101–2 British Army’s fight against (Bosnia), 99 West Africa, in, 65–79 penality: definition, 151–2 perversity and, 152–3 penalties, alternatives to military penalties (US and Australia), 176 personnel: military institutions, of, 27–32 recruitment of and military penality, 157 perversity and penality, 152–3 policing, low, 195 political action, sovereignty of, 46 political influence on UK and US army practice, 104–5 political liberalism, 47 political science, realism, 198 politics, criminalisation of in West African states, 68 power and critical criminology, 8 predicate events’ effect on expansion of militarism, 44 Prince, Erik (Blackwater International), 194 Prison Industrial Complex (PIC) and military industrial complex (MIC), 162–4 prison officers: abuse, effect of on, 158 pressure on, 157–8 role of, 157 private military companies, 1, 194 civil wars, participation in, 84 private military contractors (PMCs), 1, 81–94 civilian life, return to, 85–6, 89–92 criminalisation of, 88 criminality of, 86–7 employment patterns, 83 future of, 85–8 hostile environment, role in, 81–2 immunity from prosecution, 87–8 labelling theory and, 88 legal case against, 86–7, 87–8

mercenaries, as, 86–7 1990s, use of in, 84 private security labour markets and, 83 returning and ‘national defender’ status, 91 veterans, problems of, 90–1 war fighting, consequences of, 82 private security labour market: liberalism and, 85 PMCs and, 83 Procedure for the Disposition of Homosexuals (1943) (US), 180 prosecution: exemptions for homosex, 180 PMCs’ immunity from, 87–8 psychiatry: homosex and, 180, 181 resistance to, 182–3 public relations, American and Gulf War, 52 public resources and militarism, 46–7 punishment, humiliation as, 162 Rajapaks, Mohindra, war crimes proceedings against, 123 realisms: criminologies of the military, of, 196–200 criminology, 198 definition, 197–8 discussion of, 197 political science and, 198 right realism and, 196–7 real-world problems, British Army practices mitigate, 102 rehabilitation, 164, 174 ‘Reichstag fire’, 49 relative deprivation, 10, 19, 27–9, 32 application of, 28–9 Northern Ireland, 28 squaddies and, 28 structural depression and, 29–32 responsibility, denial and neutralisation of, 143–4 retribution, 152 intelligence and, 153–5 retributive thinking, 154 Rome Statute of the International Criminal Court, 116, 118, 119, 121 security provision, privatisation of, 195 self-reporting and homosex, 183 Serb minority, protection of by British Army, 109–10 sexual exploitation and rape and military criminology, 6 sexual violation of women is unreasonable violence, 138–9

Index 211 Skype Affair (Aus), 135–8 details of incident, 135 female cadet’s complaint, treatment of, 135 official comment on, 141 Small Arms Survey (SAS), 198 social actions, sovereignty of, 46 social crisis, economic crisis creates, 56 soldier delinquency, 5 soldiers: obedience, duty of, 118 sovereign, bond with, 117–18, 119, 120 sovereign authority, 49–50 sovereign-soldier relationship, 117–18, 119, 120 sovereignty: militarism and, 48–51 military, civilian space, in, 50 political action, of, 46 social actions, of, 46 special operations forces, 47 squaddies: overt ethnography and, 25–6 relative deprivation and, 28 Stabilisation Force (SFOR), 97–8, 106 state-crime links (Nigeria), 74, 75 state crime nexus, 71 state legitimacy (W. Africa) and narcotics and drug-trade, 75–6 state-organised crime (W. Africa), 65–79 Kaplan on, 66–7 narratives of, 66–9 state prosecutions after Rome Treaty, 125–9 Australian case law, 126–7 British case law, 128–9 Canadian case law, 127–8 generally, 125–6 state security and homosexuality, 183 states: international prosecutions by, 122–3 prosecutorial decision-making and ICC, 122 universal jurisdiction and, 121 structural deprivation, 32 relative deprivation and, 29–32 ‘superior orders defence’, 118–19 Sutherland, Edwin H, 4–5 terror, new order of, 51–2 torture, 154 Bosnian Muslims, of, 98 contravention of military law, and, 153 interrogations and, 154 uncertainty and interrogation, 154–5, 156, 157 Unicor (Federal Prison Industries), 162

uninvited advances (homosex), 178 United Nations Convention against the Recruitment, Use, Financing and Training of Mercenaries (General Assembly Resolution 44/34), 86–7 United Nations Development Program Human Development Reports (1993 and 1994), 54 United Nations Interim Administration Mission in Kosovo (UNMIK), 100, 101 United Nations Working Group on the Use of Mercenaries, 87 United States Army practice (US): Bosnia and Kosovo, in, 102 political support and influence, effect of, 104–5 United States military courts, homosexual offences considered, 175 United States military forces’ treatment of homosex, (WWII), 170–2 United States military justice, 172–7 types of crimes, 173 United States sailors and homosex, 180–1 United States troops in Kosovo, 101 universal jurisdiction, 120 ICC exercises, 121 states and, 121 University Armed Service Units (UASUs) (UK), 30 use of force, legitimacy of and homosex (Australia), 179 veterans and veteranality, 89–92 PMCs, 89, 90–2 violence: externally and internally directed, 138–9 homosex and (US and Australia), 178–9 institutional, ‘bad apples’ disposition to, 142 inter-ethnic (Kosovo), 100 military see military violence prison, 159 reasonable, 138–9 unreasonable, 138–9, 140–1 war and warfare, 7 crime and, 2, 7–8 criminological aspects, 19–20 readiness for (US), 162 war atrocities as crime, 5 war crimes: law enforcement and, 2 Rajapaks, Mohinda, prosecution against, 123 unreasonable violence and, 138

212  Index war criminals, arrest of, 98–9 war fighting: criminal activity and, 2 PMCs, consequences for, 82 West Africa, organised and state-organised crime, 67–8

West African states: criminalisation of politics in, 68 narcotics and drug-trafficking, in, 67 organised crime in, 66–8 workplace deviance and military criminology, 56