In a world of nation-states (states), political violence by the state is virtually inevitable. Governments need to protect the security of their citizens, punish criminals, and sometimes kill or commit other acts of violence during the course of internal or international armed conflict. However, under international and domestic law there are limits to the degrees of violence to which states may engage. The killing of prisoners of war, murder of civilians, extrajudicial executions, torture, rape, and police brutality are all examples of state political violence that continues to exist in different parts of the world.
By its very nature, war consists of acts of violence by one state against another. It may or may not be lawful. A “war of aggression,” for example, is a “crime against peace” under customary international law. On the other hand, Article 51 of the United Nations Charter specifically recognizes the inherent right of a state to use force to defend itself from an armed attack. In international law this is known as jus ad bellum or the right to engage in war. Once international armed conflict is underway—legally or illegally—fundamental rules of war exist that cover the conduct of combatants. These laws are known as jus in bello or international humanitarian law (IHL). Major sources of IHL are found in the Geneva Conventions of 1949. Of particular note are the third and fourth conventions that aim to protect prisoners of war and civilians, respectively. Provisions of these conventions also grant lawful combatants general immunity from criminal prosecution for their acts of violence. This includes killing enemy soldiers and may very well include the deaths of civilians under the notion of collateral damage, depending upon the circumstances.
But there are limits to the violent conduct of lawful combatants. In principle, IHL proscribes the killing of civilians or prisoners of war. It is also a grave breach of these conventions to engage in sexual assault or to unnecessarily damage or destroy civilian objects such as homes, schools, or places of worship. When belligerents commit unlawful acts of violence they are subject to laws of their state, either through military or civilian courts, or if captured they may be prosecuted and punished by the enemy state. Under some circumstances, jurisdiction to prosecute belligerents (and their superiors) for their crimes may also lie with international criminal tribunals such as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court, both seated at The Hague in the Netherlands.
Sometimes governments are involved in acts of violence that constitute “crimes against humanity,” which is a category of serious crime with origins in customary international law. Violent offenses such as murder, extermination, rape, forced disappearance, and torture may rise to this level when the atrocities are committed as part of governmental policy, are directed at a civilian population, and are considered widespread and systematic. The magnitude of even one incident, however, can be considered sufficiently heinous to be a crime against humanity. There is no immunity for such acts. Combatant immunity only applies to IHL—not to crimes against humanity—regardless of the existence of international armed conflict. While an extremely narrow defense of “superior orders” exists under IHL, such pleas based upon orders from the state are of no consequence in determining the guilt or innocence of the accused. Even heads of state do not enjoy immunity for their guilty acts that occurred within the scope of their official duties.
Genocide and Torture
When states, or individuals acting individually or at the government’s behest, commit certain acts with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, the crime of genocide enters the picture. It is interesting to note that early drafts of the Genocide Convention, which was adopted in the aftermath of World War II, originally listed political groups within the protected classes. Some states were concerned, however, that such language would expose them to criminal liability or other sanctions for what might otherwise constitute lawful acts of violence during the course of internal or international armed conflict.
It should also be noted that genocide or attempted genocide need not be committed within the context of armed conflict, although it often is. And while the destruction of one of the delineated groups through murder is perhaps the most common form of genocide, it may also be accomplished by other means. Deliberately inflicting conditions that are intended to bring about such destruction through forced sterilization or forcibly transferring children from one group to another are just two examples of the existence of genocide without killing.
Another serious act of violence that can be perpetrated with or without the presence of armed conflict is torture. Regardless of the motivation or purpose, government-sponsored torture is prohibited under various sources of international law and under the national laws of most states. The United Nations Convention against Torture (CAT) defines torture by public officials in their official capacity as acts that inflict severe pain or suffering (physical or mental) for the purpose of obtaining a confession, imposing punishment, or for any reason based upon discrimination. Acts such as administering mind-altering substances or threats of imminent death within this context may very well constitute torture. International law calls for states to take appropriate action in order to prevent or prosecute acts of torture within their jurisdiction. CAT also prohibits states from extraditing an individual to another state where there is reason to believe that person may be subjected to acts of torture. Despite the requirements of CAT and other relevant international and domestic laws, including the International Covenant on Civil and Political Rights, human rights groups continue to document acts of torture on a grand scale. To add to this, CAT specifically states that its proscriptions do not apply to pain or suffering incidental to the lawful sanctions of a state.
Political Assassinations and Police Brutality
Political assassinations are another form of violence that can be undertaken by private individuals or nonstate actors for seemingly political purposes. They can also be sanctioned at the behest of governments. The motives are many: political, financial, vengeance, and notoriety. Whatever the case, history has shown that political assassinations often serve a state’s purpose. Governments and politics change, laws are abolished or enacted, and the direction of wars and other armed conflicts shift. Consequently, an assassination—or even a failed attempt—may very well have a profound effect on the history of a culture, political or religious group, or one or more states. Accordingly, states have long been involved in activities relating to political assassinations. For some states, assassinations are simply everyday business. They are viewed as opportunities to eliminate political competition, enemies of the state, and extortionists and to silence those who otherwise pose a security risk to the state or its political or military officials. Some states have enacted legislation that makes it a crime for members of the state to directly engage in assassinations. Others go even further and prohibit governmental funding or any other form of encouragement for assassinations whether domestic or foreign. The presence of such laws or executive orders does not mean that a particular government or state does not participate, either directly or indirectly, in assassinations.
But just as all homicides are not murder, all killings of military and political leaders are not assassinations. Take the United States, for example. Assassinations are illegal under federal law. However, enemy belligerents—including generals and the commander in chief of the armed forces— are considered lawful military targets of murder. Strictly construed, such killings do not constitute assassinations. Similarly, the use of deadly force by a state as a means of self-defense does not constitute an assassination. The reality is that these are complex political and legal issues. For example, “targeted killings” of terrorist group leaders were recently upheld by Israel’s highest court. Many human rights groups take a different view of such practices, and it remains unclear whether collateral deaths of civilians occurring during the course of the targeted killing will be recognized as an unfortunate, yet sometimes lawful consequence, as they are under the laws of war.
Police brutality is another form of state violence, which may also be politically motivated. Acts of excessive force and police brutality in the United States are far from what they were during the turbulent times of the 1960s and early 1970s. For some, images of the police dog attacking a 19-year-old black youth in Birmingham, Alabama, or the massacre of unarmed students at Kent State University in Ohio cling vividly. For others, excessive force and other forms of police brutality remain unabated. When acts of police brutality are alleged, they are typically handled by a police internal affairs unit as an administrative investigation. The Federal Bureau of Investigation (FBI) also has jurisdiction to undertake criminal investigations for violation of federal civil rights laws, which include the excessive use of force and false arrest. The FBI and the Civil Rights Division of the U.S. Department of Justice are especially needed in cases involving a widespread or systematic pattern of abuse by a particular law enforcement or corrections agency. By no means is police brutality limited to the United States. Indeed, human rights groups regularly express serious concerns about police misconduct and brutality throughout the world, some of which are openly sanctioned by government officials.
Some states engage in the practice of extrajudicial execution, which is essentially a summary execution without the benefit of a trial or other due process of law. Such acts are in contravention of international law and the International Covenant on Civil and Political Rights in particular. But state violence through executions is not limited to those that are carried out outside of the court systems. While it may not be unlawful, one form of state-sponsored violence that continues to exist in some countries is the death penalty. Capital punishment, which takes its name from the notion of beheading or decapitating, has at one time or another been practiced by most states or cultures. The United Kingdom and Canada once carried out executions. Even the pope had its hand in it. The pope’s executioner, known as the master of justice, carried out more than 500 papal death warrants by axe, rope, or the sharp edge of a guillotine from 1796 to 1861.
During the past decade many states have abolished the death penalty legislatively or through practice. More than 50 states, including Belarus, Cuba, Saudi Arabia, and the United States, continue to execute convicted criminals for various serious crimes. Most often this is for murder under aggravating circumstances, but executions for drug crimes and adultery are still carried out by some states. In legal terms, a court-ordered execution remains a homicide, albeit not a criminal form of homicide. It must be remembered that all killings of human beings by others human beings are considered homicides. Homicides are typically criminal in nature unless they are excused or justified, the latter being the cases for the executioner. Despite the call from individuals and groups throughout the world for the complete abolishment of the death penalty,
the International Covenant on Civil and Political Rights does not prohibit the death penalty. It does, however, limit its application to the most serious of crimes.
- Ford, Franklin L. Political Murder: From Tyrannicide to Terrorism. Cambridge, MA: Harvard University Press, 1987.
- Holmes, Malcolm D. Race and Police Brutality: Roots of an Urban Dilemma. Albany: State University of New York Press, 2008.
- Levinson, Sanford, ed. Torture: A Collection. New York: Oxford University Press, 2006.
- Neff, Stephen C. Hugo Grotius on the Law of War and Peace. Student Ed. Cambridge: Cambridge University Press, 2012.
- Robertson, Geoffrey. Crimes Against Humanity: The Struggle for Global Justice. New York: The New Press, 2007.
- Sarat, Austin. When the State Kills: Capital Punishment and the American Condition. Princeton, NJ: Princeton University Press, 2002.
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