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...insecurity'--formerly by social policy--is being eroded at both the macro ('war on terror') and micro ('public order') levels. This paves the way for the unbridled use of state force, in the first instance, and the criminalisation of behaviours that are not necessarily illegal, in the second. Fear becomes a controlling mechanism for the maintenance of the social order and any element of non-conformity is construed as a threat.
Keywords: civil rights, crime prevention, justice system, Muslim, nation state, refugee, security, terrorism
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The war on terror has accelerated a major, ongoing development that is, as yet, little understood, in relation to the use of force by nation states. There is much to suggest that the basis on which force is deployed by states and certain specialist business interests has undergone a gradual shift over the past twenty years, even as the regulations and rights that serve to constrain the use of such force have become less clear and distinct. Extreme examples of this tendency may be seen, for example, in the set-up at Guantanamo. Inmates at the American military base there find themselves almost completely deprived of rights by reference to superordinate security interests. But is this also true of the use of force more generally: is traditional crime policy giving way to a more expansive logic of security? A demonstrable criminal offence is no longer a necessary precondition for the use of force; instead, a perceived threat, a risk profile or a sense of insecurity may all be deemed sufficient. There may, indeed, be grounds for speaking of a paradigm shift.
In this article, I argue that there are several ways in which we are moving from one system to another as regards the use of state-sanctioned force in Europe. First, the field for interventions has been extended so that an increasing number of phenomena may be dealt with by the use of force. Fundamentally, this has involved the law being stretched in two directions at once: the line between crime and acts of war has been erased, as has that between criminal offences and minor public order disturbances. This has led to the establishment of a broad field in which governmental and private institutions can collaborate and use force according to new principles. Second, the institutions operating within this field, such as the prison system, border control, local crime prevention agencies and the private security industry, have massively expanded. They function increasingly in accordance with an overarching logic of security. That concept of security involves the promise to citizens of security from crime and gives maintenance of the existing social order an ever more prominent role in political life. Moreover, the institutions analysed here continue to expand--and justify their expansion--by constantly recreating the threats against which their responses are directed. This gives the field a distinctive rationale of its own.
Rupturing the rule of law: the creation of a new policy field
The notion that we live in a state governed by the rule of law constitutes a fundamental element in our understanding of society: we do not become the focus of police attention or find ourselves in prison for no reason. There has to be a crime involved. The justice system is only activated once a crime has been committed. The task of the police is then to investigate the offence, after which a court examines the question of guilt and may impose a penalty. This is then implemented by the prison service. An individual suspected in connection with an offence is made aware of what he or she is accused of, has a right to legal representation and is presumed innocent until found guilty. The entire process follows the logic of the law and constitutes the generally accepted image of states governed by the rule of law.
Much of the business of the justice system is still conducted according to these principles and proceeds from a concrete suspicion of criminal activity. But there is an increasing tendency for the use of force to be applied outside this framework. Infringements and violations have been documented by legal scholars, activists and journalists alike. Again and again, critics have called attention to the absence of legal rights in specific situations, the dissolution of international law and breaches of international conventions and human rights. With each passing year, these criticisms have become increasingly clamorous, but they have not been able to check the trend. Perhaps the time has come to begin to draw some conclusions. Is this pattern primarily the result of isolated failures in the criminal justice system or is there a deeper mechanism at work?
The decisive question is whether the trend described is a result of the system functioning imperfectly or whether it is working differently than before. There is much to suggest that the latter is the case. The law has been ruptured in two directions simultaneously: upwards, through the erasure of the line between crimes and acts of war; and downwards, through the erasure of the line between criminal offences and minor public order disturbances.
The breach upwards
President Bush chose to designate the attacks of September 11 as an act of war. (1) If these attacks had been viewed as crimes, the task of investigating them would have fallen to the police and the question of guilt would have been tried in the criminal court. Instead, the American government chose to order the military to bomb Afghanistan. These are undoubtedly two quite different things--bombing a sovereign state or tracking down criminal offenders.
But in the context of the new security mentality, the difference between the two becomes less tangible. The line distinguishing crimes from acts of war is beginning to vanish in the pursuit of terrorism. 'What is striking about the terrorism concept is that it encourages a dissolution and a fusion of civil and military agencies and roles, of national defence and domestic anti-crime work.' (2) Previously distinct areas of responsibility become blurred. The global battle against terrorism has become a matter for both police and military.
This is not to say that there are no longer differences between crimes and acts of war. But the difference is not as well defined as it was; crimes and acts of war are now located on the same sliding scale. Sweden's defence inquiries, conducted over the last few years, bear witness to this shift. That there is a sliding scale between war and peace runs through these analyses of the global situation. We read of 'the ongoing refocusing of overall defence' in order to 'prevent and deal with threats and risks along the entire length of the scale from peace to war'. (3) The armed forces were to be given new assignments and there has been a move to reconsider the prohibition against the domestic use of military force. Following September 11, it was proposed that the military might be deployed in connection with 'certain attacks of a terrorist nature that do not originate in an alien state' (emphasis added). (4)
The brief period when the military's weaponry was exclusively directed at the outside world to avert threats from alien powers, while the police were responsible for law and order within the country, is coming to an end. And what holds for Sweden can be generalised across Europe. There is no longer any clear distinction between a country's internal and external security--a shift of historic proportions. With the end of the cold war, the threat of military invasion disappeared in the prosperous nations of the world; since then, defence analysts have sought new areas in which to carry out their work and have been diagnosing new security risks. (5) They have fastened on to Muslim fundamentalism, poverty, the narcotics trade, streams of migration and political protest. These phenomena are at once both local and global. The illicit drugs found in every municipality are produced across great stretches of the globe, with the drug trade woven into the world economy. Refugees and asylum seekers may be found in virtually every municipality; at the same time, migration flows follow patterns of global conflict and the demand for cheap labour. As a consequence, it is judged increasingly meaningless to distinguish between internal and external security issues, to distinguish between threats and risks on the basis of whether they come from outside or inside the country.
The risks and threats on which these analyses focus are not military in nature. Neither drugs nor refugees constitute a security threat in any traditional sense. The central factor is not the potential for violence. Instead, the problem is of a more political character. Even where the threats do involve elements of violence, there are clear political overtones. Terrorism is a good example. Although acts defined as terrorist mark the crossover between criminal offences and acts of war, it is...
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