Book Review: Genocide, State Crime and the Law: In the Name of the State

Genocide, State Crime and the Law: In the Name of the State
London: Routledge-Cavendish, 2012
BY Jennifer Balint

Reviewed by ALEXANDER C. COOK University of California, Berkeley

This book argues that genocide and other types of mass harm are better understood, redressed, and prevented if we conceive of their nature as “state crimes.” The foundational proposition— that state institutions, including and especially law, often have played an active or enabling role in the commission of mass harm—seems unassailable. This fact is demonstrated at length, drawing extensively on examples from the Armenian genocide under the Ottoman Empire, the Holocaust under Nazi Germany, the genocide in Cambodia under the Khmer Rouge, apartheid in South Africa, mass killing in Ethiopia under Mengistu and the Dergue, and the recent genocides in Rwanda and in the former Yugoslavia, with occasional examples from elsewhere. Indeed, to readers already sympathetic to this line of argument, the demonstration may seem unnecessarily long and repetitive. However, the empirical evidence serves another purpose: to show the pervasiveness and variety of state crimes, so we may build a typology of their essential features and more effectively respond.

The book is mainly descriptive and heuristic. The author proffers a number of useful analytic distinctions, such as forward-looking justice or backward-looking justice, perpetratorvictim redress or societal redress, individual accountability or institutional accountability, and so on. Each historical case is then described and assessed according to these criteria. The exercise ultimately leads to several hypotheses about which conditions are more likely to result in which sorts of outcomes. For example, “When the harm is forcibly ended by an external power, the proceedings convened will generally be externally convened, have limited reconstructive potential, yet be a reliable vehicle for discovering a set of facts of what has occurred.” [200-201] These generalized hypotheses presumably will be of use to policy makers. The author’s own prescriptive proposal is a new juridical concept, “civic liability,” which calls for greater institutional transparency, accountability, and reform in the wake of mass harm. Unfortunately, we are left with few details of how such a remedy might be implemented. This omission is due, I think, to the author’s own ambivalence about the law. On the one hand, she would have law play a more active role in seeking and enforcing civic liability; on the other hand, she recognizes the severe limitations of a purely legal approach. At best, she says, law can establish possibilities, open spaces, and create opportunities for reconciliation and reconstruction.

Law is hampered as a solution to mass harm precisely to the extent that law is also part of the problem. When law has served as the “framework” and the “shield” for mass harm [33], we must be wary of its bluntly instrumental uses. The great irony is that in the wake of state crimes, law so often “becomes a tool of nation-building […,] an instrument designed to separate the old from the new and to define the new polity.” [82] Thus order and accountability are sought not in the name of justice, but in the name of the state.