Journal of International Criminal Justice Advance Access published online on June 11, 2007
Journal of International Criminal Justice, doi:10.1093/jicj/mqm027
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Original Papers |
The Paradigm of the War on Crime
Legitimating Inhuman Treatment?
* Professor, Collège de France, ‘Chair of Comparative Legal Studies and the Internationalisation of Law’. The original version of this text was presented as a lecture at the Collège de France on 12 February 2007. The author wishes to express her sincere thanks to Naomi Norberg for this translation. [ mdelmas-marty{at}libertysurf.fr]
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Abstract |
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Since 11 September 2001, a new paradigm has developed in criminal law. Parallel to the idea of the ‘war on terror’, a paradigm based around ‘war on crime’ has emerged. Inevitably, however, a paradigm of war leads to abandoning scientific approaches based on a legal-moral vision (crime, guilt and punishment) in favour of a merely pragmatic vision, which associates national security with social defence. Based on an unclear concept of dangerousness, presumed by simple membership in a group labelled ‘enemy’, the goal is to neutralize, or even eliminate, the criminal/deviant. When combined with a denial of international protections, deconstructing national criminal law thus runs the risk of pushing a black hole through the rule of law. Many have criticized such a paradigm; however, the author points out that the paradigm of the war on crime (and more generally the war on terror), provided that it respects international law, can be useful, because it shows the need to overcome the binary opposition between war and peace, as well as between war crimes and ordinary crimes. Nonetheless, it must be clear that this paradigm can only be one of transition. To overcome the war–peace dichotomy in a global community and to reconstruct the relationship between terrorism and torture, neither a ‘war crimes’ nor a ‘war on crime’ paradigm is truly sufficient. Only through the amplification of a paradigm of ‘crime against humanity’ (itself unstable and evolving but free from the war metaphor) can we reconstruct humanity as a value and make it the cornerstone of any legal system.