Criminology and Massive Violation of Human Rights: The Case of Terrorism and Genocide

Abstract

The criminological dimension of crime generally does not arouse great enthusiasm from researchers in Arab countries, unlike Anglo-Saxon- or French-speaking countries. Admittedly, Western criminology is more advanced, but it is more interested in common crimes than in mass crimes such as crimes against humanity, genocide, human trafficking or terrorism. However, the rare existing studies reveal the emergence of a criminology of massive human rights violations and expose some particularities of this criminal phenomenon. These include the often transnational nature of the crimes, the geographical, socio-economic and political disparity of criminals, the high number of victims, and more. The relationship between criminal law, criminology and human rights should be examined to determine the complementarity of the law and the empirical criminal sciences in crime prevention.

Abstracto

La dimensión criminológica del delito en general no despierta gran entusiasmo por parte de los investigadores de los países árabes, a diferencia de los países anglosajones o francófonos. Es cierto que la criminología occidental está más avanzada, pero está más interesada en la delincuencia común que en los crímenes masivos como los crímenes de lesa humanidad, el genocidio, la trata de personas o el terrorismo, etc. Sin embargo, los escasos estudios que existen revelan el surgimiento de una criminología de las violaciones masivas de los derechos humanos y exponen algunas particularidades de este fenómeno criminal. Estos incluyen: la naturaleza a menudo transnacional de los delitos; la disparidad geográfica, socioeconómica y política de los delincuentes así como el elevado número de víctimas, etc.

La relación entre el derecho penal, la criminología y los derechos humanos debe ser examinada con el fin de determinar la complementariedad de las ciencias jurídicas y penales empíricas en la prevención del delito.

Abstrait

La dimension criminologique de la délinquance en général ne suscite pas un grand enthousiasme de la part des chercheurs des pays arabes, contrairement aux pays anglo-saxons ou francophones. Certes, la criminologie occidentale est plus avancée, mais elle s’intéresse davantage à la criminalité de droit commun qu’aux crimes de masse comme les crimes contre l’humanité, le génocide, la traite des êtres humains ou le terrorisme, etc. Cependant, les rares études qui existent révèlent l'émergence d’une criminologie de violations des droits de l’homme et exposent certaines particularités de ce phénomène criminel. Ceux-ci incluent : la nature souvent transnationale des crimes ; la disparité géographique, socio-économique et politique des criminels ainsi que le nombre élevé de victimes, etc. La relation entre le droit pénal, la criminologie et les droits de l’homme devrait être examinée dans le but de déterminer la complémentarité du droit et des sciences criminelles empiriques dans la prévention du crime.

抽象的

与盎格鲁-撒克逊或法语国家不同，阿拉伯国家的研究人员一般不会对犯罪的犯罪学维度产生极大的热情。 诚然，西方犯罪学更先进，但它对普通犯罪比对大规模犯罪更感兴趣，例如危害人类罪、种族灭绝罪、贩卖人口罪或恐怖主义罪等。然而，现存的少数研究揭示了大规模犯罪学的出现 侵犯人权并揭露这一犯罪现象的一些特殊性。 其中包括： 犯罪往往具有跨国性质； 罪犯的地理、社会经济和政治差异以及大量受害者等等。 应审查刑法、犯罪学和人权之间的关系，以确定法律和实证犯罪学在预防犯罪方面的互补性。

ملخص

لا يثير البعد الإجرامي للجنوح بشكل عام حماسًا كبيرًا من جانب الباحثين في الدول العربية ، على عكس الأنجلو ساكسونية أو البلدان الناطقة بالفرنسية. من المسلم به أن علم الإجرام الغربي أكثر تقدمًا ، لكنه يهتم بالجرائم العامة أكثر من اهتمامه بالجرائم التي تنتهك حقوق الانسان مثل الجرائم ضد الإنسانية أو الإبادة الجماعية أو الاتجار بالبشر أو الإرهاب ، إلخ. ومع ذلك ، فإن الدراسات النادرة الموجودة تكشف عن ظهور علم إجرامي لانتهاكات حقوق الإنسان وتكشف بعض خصائص هذه الظاهرة الإجرامية. وتشمل هذه: الطبيعة العابرة للحدود في كثير من الأحيان للجرائم ؛ التباين الجغرافي والاجتماعي والاقتصادي والسياسي للمجرمين وكذلك ارتفاع عدد الضحايا ، إلخ. ينبغي دراسة العلاقة بين القانون الجنائي وعلم الجريمة وحقوق الإنسان بهدف تحديد تكامل القانون والعلوم الجنائية التجريبية في منع الجريمة.

INTRODUCTION

The concept of human rights is not easy to define, but it can commonly designate “all the innate rights of the individual that he possesses independently of any recognition of a political authority” (Gassin, Cimamonti, and Bonfils 2011:3). These are universal rights “not in the sense that they would henceforth be universally recognized and respected, but in the sense that the demand for human rights has spread to the whole planet” (De Gouttes 2000:133; Robert 2010:184). If the relationship between criminal law and human rights is affirmed “in the logic of conciliation and symbiosis” (Maistre Du Chambon 2012:436; Mincke and André 2022), the respective missions of the two fields sometimes seem opposed, especially when it comes to violent crimes, which call more for severity in their repression than for the respect for individual rights and freedoms.

As for criminology, it is a science that studies “the factors and processes of criminal action and determines, from these factors and these processes, the best means of struggle to contain and, if possible, reduce crime” (Robert 2010:184). It differs from criminal law because it is so flexible that all disciplines combined can contribute to it (Lochak 2009:46; Sägesser 2009:11). This is about its credibility and effectiveness (De Gouttes 2000:133). However, criminal law and criminology form an inseparable couple because, as J. H. Robert (2010) said, “law without criminology has no object and criminology without law has no limit”. ¹ The objects of law and criminology are complementary. The latter contributes to the fight against crime, not by repression but by psycho-sociological and empirical studies of the criminal phenomena and the criminal in clinical and preventive perspectives.

Without dwelling on the various restrictive and extensive approaches of criminology, on the history of this discipline and its relationship with criminal law or human rights, any offence arouses indignation and calls for the involvement of criminal science, whether legal or empirical (Draï 2004). Nevertheless, there are crimes of “terror” (Vervaele 2014) that defy the attempts at explanations that science, all disciplines combined, claim to provide about them, as is the case with crimes against humanity, war crimes or even genocide. Historically, it is only gradually that positive international law has built up a body of incriminations making up the hard core of international crimes: “a set of serious crimes the commission of which affects all of humanity and offends the conscience and the law of all nations”. ²

In this sense and contrary to historical, legal-political and sociological studies, criminological studies in the field of massive violations of human rights are not numerous as in the field of common law (Pierre 2015:629). There are also several differences between these two criminal phenomena: for common law crimes, the justice mechanisms and roles are known, whereas, in mass crimes, the victims and the aggressors are sometimes confused. Also, the border between what is criminal and what is legitimate is not clear, and the standards applicable to the search for the truth, the identification of those responsible and the victims are to be sought in another logic than that of common law (Pierre 2015:629). Despite their rarity, some studies nevertheless exist, and criminologists attempt to approach these extraordinary crimes by specifying, for example, that terrorism is a rational criminal act, that is to say, it stems from a choice and pursues a goal, while genocide takes place because the conditions necessary for its commission have been met (Pierre 2015:629).

This contribution aims to share some criminological analyses of a particular form of criminality prejudicial to human rights, particularly terrorism and genocide. It is also a question of drawing attention to the role of criminology in understanding this criminal phenomenon as well as the characteristics of the perpetrators. How does criminology study this form of crime, and what are the conclusions of research in this area?

To provide some answers, we deal first with some criminological characteristics of massive violations of human rights, before looking at the role of criminology in their prevention, like in the example of terrorism prevention in Morocco.

SOME CRIMINOLOGICAL CHARACTERISTICS OF MASSIVE VIOLATIONS OF HUMAN RIGHTS: THE CASE OF TERRORISM AND GENOCIDE

Terrorism is an offence that directly targets the protection of the security and peace of a State, as stated in the Moroccan Penal Code in its first chapter: Crimes and offences against State security. It can also cause the death of the civilian population and violate the most basic human right, the right to life (Articles 218-1 to 218-9 of the Moroccan Penal Code). Several international texts have criminalized terrorism. The International Civil Aviation Organization (ICAO) has adopted many multilateral anti-terrorist conventions, as have the International Maritime Organization (IMO) and the International Energy Agency (IEA), as well as the United Nations (UN) within its framework, such as: the Convention for the Suppression of Terrorist Bombings, adopted on 15 December 1997; the International Convention for the Suppression of the Financing of Terrorism, adopted on 9 December 1999, in New York; and the last one, the International Convention for the Suppression of Acts of Nuclear Terrorism in 2005. State terrorism is one of the thorniest problems, especially when States have on their territory a structural practice of serious human rights violations by State agents or by private forces under their control. ³ Concerning genocide, it is not currently considered a crime by Moroccan criminal law. However, intending to harmonize its penal legislation with the new 2011 Constitution, a draft Law No. 10.16 tending to modify and complete the Penal Code criminalized genocide and crimes against humanity. This is in Articles 488-1 and 448-1 to 448-5, respecting Article II of the Convention on the Prevention and Punishment of the Crime of Genocide established under UN General Assembly Resolution 260 A (III) of 9 December 1948. The latter states that:

Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. (a) Killing members of the group;

2. (b) Causing serious bodily or mental harm to members of the group;

3. (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

4. (d) Imposing measures intended to prevent births within the group;

5. (e) Forcibly transferring children of the group to another group. ⁴

Terrorism in general, and especially State terrorism, also qualify as State macro-crime and genocide, and have some common characteristics.

Among genocide’s features are:

1. (1) Objectification and dehumanization of the other;

2. (2) Destructive obedience;

3. (3) Identity-based crimes;

4. (4) Radicalization;

5. (5) Inhibition or devaluation of the superego;

6. (6) Blurred boundaries between justice, victim and respect for human rights.

Objectification and Dehumanization of the Other

Daniel Zagury, an expert psychiatrist, describes the hardening processes among genocidists, terrorists and child soldiers. He specifies the mechanisms favouring the crimes committed, for example, by the Hutu genocidists: functional cleavage, cutting off any association between values, personal stories and victims; reversal of moral references by acting in the name of leaders and of an ideology; objectification of the other by lowering him to the rank of an insect; and collective hubris reporting atrocities in group excitement (Brunet 2015:50).

Destructive Obedience

According to Johan Lepage (2017), while obedient behaviour facilitates daily interactions within hierarchical groups, history shows that it can also result in severe harm to others, such as acts of torture and barbarism, war crimes and genocide. The development of approaches such as social neuroscience can shed new light on the mechanisms responsible for “destructive obedience”, defined as obedience to orders leading to harm the dignity and physical or moral integrity of others (Lepage 2017).

Identity-based Crimes

The crime of terrorism, like other mass crimes, e.g. genocide, mainly falls into the category of so-called “identity-based” conflicts, that is to say, “constructed on identity claims making it possible to exclude those designated as carriers of a different identity and who are presented by the initiators of the criminal project as threatening and at the origin of the evils of society” (Pierre 2015:630).

Radicalization

In terms of terrorism especially, criminologists explain how normal individuals, from a form of identity wandering, manage to espouse a cause and an extreme and radical mode of action as an illusory solution to their identity quest. For example, young people vulnerable to the discourse of indoctrination put forward by extremist Salafists are “fascinated by the call that offers them a new collective identity, legitimization and a banner. The candidate for enlistment declares himself a ‘Salafist’ to avoid identity cravings.” (Bencheikh 2016:8) Also, terrorists and genocidists carry a “cause”, an “ideal” that they identify with and justify violence against victims as the price to pay for the advancement of the cause. Some authors speak of a “capacitor” element that comes from “preachers who prepare magic formulas with an anaesthetic effect on the masses” (Bencheikh 2016:8).

Inhibition or Devaluation of the Super-ego

Psychological factors are at the fore in the explanation of this criminal phenomenon, especially the constitution of the criminal personality and the relationship between the three authorities (the id, ego and super-ego). Analysis of the words of the young radicals by researchers has shown that they have a particular psychic organization where an ideal has “downgraded” the super-ego and devalued it. It emerges from their speech that they carry a “cause” that justifies their actions and an “ideal” that they identify with to the point where this seems to allow them to disregard any law (Brunet 2015:49). Remembering the inhibitory effect of the group already developed by Freud, we know that an individual would be able to perform certain behaviours, even very serious ones, which he could not commit when alone.

Blurred Boundaries Between Justice, Victim and Respect for Human Rights

Concerning often international and violent crime, massive violations of human rights in the form of genocide or crimes against humanity or even terrorism present a certain particularity. The nature of the victims, generally a group of individuals, and the violent character of the criminal acts lead the population to an immense feeling of terror and insecurity, demanding severe repression and minimizing human rights requirements (De Gouttes 2000:133). Contrary to common law crimes and in the face of the failure of the national system (for example, the Gacaca in Rwanda or Bashingantahe in Burundi) or even the dysfunctions of international jurisdictions, the reparation to victims of mass crimes has given rise to the establishment of new justice mechanisms, namely transitional justice (Truth and Reconciliation Commission in South Africa, Europe and North Africa) (Cario 2022:174). We can say that these massive violations of human rights or generically mass crimes are those that can neither be easily punished nor easily forgiven, as Garapon (2002) would say.

THE ROLE OF CRIMINOLOGY IN THE FIGHT AGAINST MASSIVE VIOLATIONS OF HUMAN RIGHTS

The relationship between criminal law, criminal justice and criminology is not simple and does not always function in lasting peace in Western countries (Maistre Du Chambon 2012; Mincke and André 2022; Robert 2010:184). Worse is the situation in developing countries because criminology is not or hardly integrated into public policies to fight crime.

In a recently published article on criminology in the service of the State, Mincke (2022) wisely considers that criminology has a future only if the State gives it the necessary means for research, analysis and training of people to carry out its role. Admittedly, its role should not be overestimated to avoid any frustration or weakening of the relationship between criminal law and criminology, which is already strained. The role of criminologists must be moderate because they address questions of great complexity, and they cannot claim to establish perfectly reliable predictive models. ⁵

In addition, criminology attempts to shed light on the endogeneous and exogeneous factors that favour acting out to allow public decision-makers to adopt adequate and more-or-less effective and personalized measures for each category of delinquency, such as economic, environmental, juvenile, etc. As for the fight against mass crimes and violence deviating from any attempt at explanation and understanding, the situation seems more difficult for the reasons mentioned above (Gassin et al. 2011:2). Nevertheless, control strategies exist and seem to have some positive effects, either by a renewal of concepts or by mobilization of innovative empirical approaches.

Critical Criminology for Strengthening Democracy

On the occasion of the publication by Editions Bruylant (Brussels) of the second volume of the Legal Digest of Human Rights in Africa (2000–2004), the Center for Research and Studies on Human Rights and Humanitarian Law (CREDHO) organized a seminar on the theme “Perspectives on human rights in Africa”. The participants demonstrated the seriousness of the massive human rights violations in the continent’s future. Indeed, explaining that democracy and peace are two inseparable themes and that fundamental rights can only flourish in a true democracy, the constitutionalist Gérard Conac underlined the importance of democracy in Africa, the only guarantee of sustainable economic development (Digneffe and Lufunda 2008). For this reason, the fight against terrorism and other crimes against humanity, enemies of peace and democracy, is also a fight to guarantee the pre-eminence and better protection of human rights in Africa (Digneffe and Lufunda 2008). ⁶

Democracy is the search for a balance between the collective direction of public affairs and respect for individuals. It aims to determine the contours of public policies through free debate. The work of critical criminology here is a form of contemporary criminology that consists of criticizing the institutions of positive law in light of theoretical criminology’s teachings and proposing new legal constructions arising from its teachings. Critical criminology tries to demonstrate the shortcomings of State repression, and it is seen as “a necessary enterprise of lucidity, inseparable from the democratization of our societies” (Mincke 2022). Indeed, knowledge in the human and social sciences is generally essential to the development of a society that wants to be democratic and that intends to progress with conviction and lucidity toward greater justice.

Criminology for the Prevention of Massive Human Rights Abuses

The accumulation of repressive and preventive models is still relevant to penal policy worldwide (United Nations Office on Drugs and Crime 2012). ⁷ Although the two terms may seem contradictory, “the prevention only makes sense if it is prolonged by repression, just as there is no treatment without a minimum of coercion” (Menhabé 2019:194–5). ⁸ The two strategies are complementary, even though the prevention methods are more complex and have made it possible to develop a certain preventive criminology.

In some Western countries ⁹ the relationship between criminology and criminal law has significantly improved, particularly when evaluating dangerousness and preventing recidivism. In Morocco, the Minister of Justice announced in July 2022 that a final vision for the National Observatory of Crime has been drawn up, including a division within the Directorate of Criminal Affairs and Pardons in the Ministry of Justice (L’Opinion 2022). Like international crime observatories, this body would provide an overview of trends in crime indicators and in the fight against recidivism. The involvement of criminologists, historians, sociologists, psychologists and lawyers is essential for the proper functioning of this institution.

In terms of terrorism, an international scourge violating the main rights to life and peace, several legislative reforms, as well as various conventions on police and judicial assistance, have been adopted. The fight against terrorism also takes innovative forms that focus on rehabilitation and reconciliation. Indeed, Moroccan prisons have been using the classification system since 2015 to individualize reintegration programmes to adapt to each category of criminals, particularly terrorists. The classification of prisoners (A, B, C) is based on an assessment of a commission of experts who assess the personality, the dangerousness and the percentage of recidivism.

We can also cite the “Moussalaha” or Reconciliation programme, which has had encouraging results. In a speech on 27 April 2022, the general delegate for prison administration and reintegration affirmed that 15 detainees had benefited from the “Moussalaha” (Reconciliation) programme in its ninth edition, bringing the total number of prisoner beneficiaries to 222 since its launch in 2017. The “Moussalaha” Programme was developed and implemented by the General Delegation for Prison Administration and Reintegration, using its own resources and in cooperation with the Rabita Mohammadia des Oulémas, the National Council for Human Rights (CNDH) and specialized experts. The concept evokes “reconciliation with oneself, with society, with the religious text and with the systems and norms governing society in its relationship with the individual and with institutions” (MAP Express 2022). Regarding the results of this programme, the senior prison administrator said that 156 of the detainees had been released, including 116 beneficiaries of a royal pardon, in addition to the reduction of the sentence for the benefit of 15 others, bringing the rate of inmates benefiting from a royal pardon to 63.27%. The “Moussalaha” Programme was expanded to include women detained under the anti-terrorism law during its fifth edition with 10 beneficiaries out of a total of 13 detainees, a participation rate of more than 77%, he said, stressing that all the beneficiaries of this special edition have been released, including eight with a royal pardon and two others at the end of their sentences (MAP Express 2022).

Criminology for Transitional Justice

Much work has been undertaken in Morocco within the framework of transitional justice to promote the protection of human rights, breaking with criminal practices, and achieving genuine reconciliation between victims and perpetrators of serious crimes. Transitional justice refers to a process by which a country seeks to come to terms with its past regarding all its crimes committed and human rights violations (Slimani 2013). Despite the lack of research in this area, there is no doubt about the relationship between criminology and restorative or transitional justice. An example of this in France is the Association for Research and Applied Criminology, which prepares programmes with “above all a psychological aim”, using appropriate tools to reconcile “models and practices in connection with motivational, temporal approaches, psychotherapeutic and rehabilitative criminological models” (Cario 2022:266). Morocco has also had the experience of transitional justice: The Equity and Reconciliation Body issued a series of recommendations in its final report. These revolve around three axes: ensuring constitutional reforms; implementing a national strategy to fight against impunity; and ensuring the follow-up of recommendations. Several of its recommendations have emerged since the adoption of the new Constitution, and the CNDH is monitoring their implementation. ¹⁰

Criminology’s key question is why one becomes a criminal; how to reduce and control crime is the objective of all criminal sciences. Criminology, being “the scientific study of the criminal phenomenon” and “the science of crime” (Gassin et al. 2011), is not limited to the exploration of common crime, but it marks its interest in all forms of crime, even the most inhuman and cruelest. As we have recently witnessed, there has been an emergence of a green or environmental criminology (Manirabona and Koutouki 2016; South and White 2016) and sociology of white-collar crime. ¹¹ We can say that a criminology of massive human rights violations follows this evolutionary path.

CONCLUSION

In conclusion, crime is a challenging object of study, especially concerning crimes of a certain gravity and complexity, such as massive human rights violations. However, nothing can stop the determination of criminologists and psychologists to explore the mysteries of any criminal act, especially in Western countries where criminology is a fairly developed theoretical and empirical science. In Southern societies, criminology must have an increasingly important place to support the role of the State in response to and prevention of crime.

Among the recommendations to be made, especially concerning the lack of interest in Moroccan public policies in the field of criminology:

• The integration of the scientific and criminological dimensions into the management of public affairs;

• Supporting the dynamism of researchers in the field of criminal sciences, in particular by facilitating access to information in State institutions;

• Strengthening teaching and research in criminology by creating specialized institutes and funding and integrating researchers into legal professions;

• Instead of mistrust about criminology and criminologists, on the contrary, it would be more effective to adopt a policy of exchange and collaboration between the various actors, public decision-makers and researchers.