The killing of Jean Charles de Menezes: risk, the 'innocent', and looking guilty (original) (raw)
Related papers
The killing of Jean Charles de Menezes: risk, the 'innocent', and looking guilty
2008
These arguments depart from the traditions of ‘innocent until proven guilty’, ‘beyond reasonable doubt’, ‘trial by one’s peers’, that make up the UK’s common sense notion of criminal justice. At no point did de Menezes have the chance to show that he was not a suicide bomber; he was never asked who he was, what he was doing and why. Why, then, should it matter who he was? No ‘innocents’ should be shot by the police, and even the ‘guilty’ should be given a fair trial first. I argue that the politics of the killing of Jean Charles de Menezes shows how risk-based analyses are now embedded in our discourses of security. This reaches from the everyday criminal justice of ASBOs and dispersal orders, to the ‘war on terror’. It is now implicitly accepted that some ‘innocents’ will be punished, and so the question is how many is acceptable?
Risky Killing: How Risks Worsen Violations of Objective Rights (Journal of Moral Philosophy)
I argue that riskier killings of innocent people are, other things equal, objectively worse than less risky killings. I ground these views in considerations of disrespect and security. Killing someone more riskily shows greater disrespect for him by more grievously undervaluing his standing and interests, and more seriously undermines his security by exposing a disposition to harm him across all counterfactual scenarios in which the probability of killing an innocent person is that high or less. I argue that the salient probabilities are the agent's sincere, sane, subjective probabilities, and that this thesis is relevant whether your risk-taking pertains to the probability of killing a person or to the probability that the person you kill is not liable to be killed. I then defend the view's relevance to intentional killing; show how it differs from an account of blameworthiness; and explain its significance for all-things-considered justification and justification under uncertainty. Keywords risk – harm – rights – pro tanto wrongfulness
Public safety and the moral dilemma in the defense against terror
Defence and Peace …, 2005
The economic theory of defense has traditionally described public safety as achieved through investments that deter adversaries. Deterrence is, however, ineffective and pre-emptive defense is required when a population of intended victims confronts supreme-value suicide terror. A moral dilemma then arises, since pre-emption may impose collective punishment, while in the absence of pre-emption the population of intended victims is exposed to acts of terror. We consider how a population of intended terror victims confronts the moral dilemma, and compare the threatened population's response with the public-safety recommendations of external judges who are not personally affected by the threat of terror.
extrajuridical killing and risk
This article analyses legal aspects of the 'war on terror'. It argues that, by making recourse to a semantic of risk, danger and, in particular, precaution, the 'war on terror' blurs crucial political and legal categories of public and private, of peace and war, of combatants and civilians, thus redefining the relationship between political responsibility, time and security. As a consequence, the extrajudicial killing of individuals becomes a form of risk management that takes place beyond established mechanisms of accountability.
In France, the re-emergence of the notion of dangerosity in the process of law-making makes it necessary to elaborate on the objectives of political actors. The aim of this article is to analyse the social construction of this notion through the criminological discourse at the end of the XIXth century. The Third Republic is preoccupied by the question of recidivity, fears dégénerescence and denatalité, and is seduced by another notion emerging at this time: eugenics. Contemporary lawmaking reactivates a historical heritage based on extreme usages that have been made of these concepts. Based on a socio-historical approach, this article offers elements which help to understand the mechanisms of gouvernance in a republican society, as well as the influence of these mechanisms in the production of these legal, political, moral and societal norms. Key-words: Republic, Security, politiques pénales, Récidive, Dangerosity, Eugénisme
Presumption of Innocence and Public Safety: A Possible Dialogue
2014
In Mexico, increasing demands for public safety coupled with the need for a more effective criminal justice system resulted in the security and justice constitutional reform of 2008. The outcome was a constitutional framework with provisions based on the highest standards of human rights on the one hand, and on the other, exceptional measures that restrict rights in an attempt to improve public safety. Unfortunately, the crime rate and incidence of unreported crime have changed little. When public safety is demanded, a clear, rational and concrete response is required. Limiting the alternatives to pre-trial detention or increasing penalties is rarely the appropriate response. This paper focuses on pre-trial detention and non-custodial measures supported by the new criminal justice system, how they relate to the principle of the presumption of innocence and the tension between this and the punitive demands for increased imprisonment. In addition, this study discusses a technical solution, found in pre-trial services, which seeks to balance the presumption of innocence and the right to personal liberty with public safety.
From Precaution to Prejudice: Mistakes in Counter Terrorism
2018
This chapter disaggregates the mistakes, errors and miscalculations around counter-terrorism policy. We note the difficulties in assessing when ‘something goes wrong’ in counter-terrorism which centre around the issue of uncertainty. We reflect on how to calculate the impacts of counter-terrorism in objective and subjective terms, before considering specific aspects of counter-terrorism in examples from British counter-terrorism policing and measures. We distinguish three types of ‘mistakes’: ‘genuine’ errors, misapplication of policy and unintended consequences. We consider the effects of such mistakes, in the form of ‘suspect communities’ and the ways in which high-profile mistakes come to shape perceptions of counter-terrorism practices. Given the inherent uncertainty and the seeming decision to prioritise precautionary logics, ‘mistakes’ in counter-terrorism are inevitable.
The return of the dangerous man. Reflections on the idea of dangerousness and its uses
Champ pénal, 2008
In France, the re-emergence of the notion of dangerousness in the process of law making has rendered it necessary to elaborate on the objectives of political actors. (Act on the Retention of Safety and the Declaration of Criminal Irresponsibility Due to Mental Disorder, 25 February 2008., Act of August 10, 2007 Strengthening the Fight Against Recidivism in Adults and Minors) The aim of this article is to analyse the social construction of this notion through the criminological discourse prevalent at the end of the XIXth century. The Third Republic was preoccupied with the question of recidivism, fearing degeneration and a declining birth rate, and was seduced by another notion emerging at this time: eugenism. Contemporary law making has reactivated a historical heritage based on extreme measures that have derived from these concepts. Based on a socio-historical approach, this article attempts to understand the mechanisms of governance in a republican society, as well as the influence of these mechanisms in the production of legal, political, moral and societal norms. In France, the reality surrounding the different penal laws2 leads us to question the principles and the orientations chosen or improvised by the political power in the elaboration of its criminal policy. Keeping a person in jail after he has served his sentence is a systemic aggravation of sentences in case of recidivism which recognizes (we are intentionally concise) the law on the maintenance of security adopted by the Parliament on February 7th, which was published on Tuesday, June 10, 2007 in the Journal Officiel, after having been partially censored by the constitutional council3. This law proposes a retention of security, a measure that allows the exceptional retention in a closed socio-medical-judicial centre of people sentenced to a minimum 15 year prison term for certain crimes and who are deemed at the end of sentence to present a very high probability of recidivating and pose a particular danger based on serious personality problems. The law regarding security detention is to be applied by a regional jurisdiction, made up of three judges, based on the proposals of a multidisciplinary committee, containing, notably, two psychiatric experts. The condemned person is to be assisted by a lawyer chosen or appointed during an adversarial debate. If there has been a security retention placement, the decision can be contested before a national commission composed of three advisors from the French Supreme Court. « The principle of non-retroactivity of the more severe penal laws does not apply here : detention is a security measure. It is not a sentence. It is pronounced by judges. But it is not based on the guilt of the person. Detention does not punish a fault. It aims at preventing recidivism. It is based on the dangerousness of some condemned people in relation to serious acts. It is a preventive measure which abides by constitutional requirements. It requires that, for the same degree of dangerousness, two offenders are treated in an identical fashion. The date of their conviction does not justify a different measure. If they both meet the conditions, we should be capable of placing both in detention4 ». This law is part of the legislative and medical arsenal implemented to counter recidivism5 and here more specifically the recidivism of sexual offenders6. The character of dangerousness thus reappears in the penal orientations of political power in a determined fashion7. We find here the elements, ideas and the temptations that history had already seen or dangerously flirted with. There are other words, other actors, another context, marked nevertheless, by many echoes. From a socio-historic perspective,we would like to propose in this paper, elements that are part of an analysis of the mechanisms for managing order in a republican society and its manifestations through the production of legal, political, moral and social norms. We will thus return to the question of recidivism, the struggle against recidivism under the 3rd Republic, « a creative obsession in the 19th century »8, and to the idea of dangerousness as it appeared, in its effective, expected, envisaged uses. Justifying/defending the intellectual enterprise named Discipline and Punish and specifying the 18th century, Michel Foucault wrote : it is the theoretical and practical search for such mechanisms, it is the will ceaselessy organizing equivalent mechanisms that constitutes the object of the analysis. Studying the way in which we wanted to rationalize power, the way we conceived (in the 18th century), a new « economy » of the relations of power, to demonstrate the important role held by the idea of the machine, of looking, of surveillance, of transparency, etc. which is neither to say that power is a machine nor that such an idea was born automatically »9. We will depend on a socio-historic interpretation, not to go searching in the history of episodes, of moments that would easily provide a demonstration, which would in a sense grant a legitimacy to a topic anchored in the contemporary. It will be a question of reintroducing a multiplicity of experiences, the diversity of historical laboratories available, to question, to perceive, to seize or sketch the forms assumed by the state apparatus based on the period or geographical area. Historicization allows for the enlargement of frames of reference for an analysis that is too often confined to a single precise context and which, in order to present plans felt to be innovative solutions, obscures the available and relevant historical laboratories, in order to reflect today on the meaning of political projects or processes. The idea of processes is particularly fruitful in such a socio-historical perspective10. It is not pointless to return to this past, this republican history, which because of its concern for efficiency and legitimacy in its maintenance of order, was strongly based on scientific knowledge, expert knowledge needed to support its political decisions11. We will attach ourselves precisely to the context, the problematic situation12 with a line of sight upon the existence of opportunities, projects, problems, of conflicts as conditions that are favorable to the appearance of this expert knowledge that is criminology. This knowledge would open a field of study, with its rivalries and its competitions, to shape interests where scientific, professional, and political logic melded indissolubly. Crime would become a scientific object but also a political one13. This is by virtue of an idea that had become an important principle of action : prevention-which the character of dangerousness would reveal in speeches but also be confronted by the legislators through the law of 1885 dealing with the banishment of recidivists. This character of dangerousness was very close, in this late 19th century context, haunted by degeneration and a low birthrate14, and by another equally emergent idea : eugenics. We will stop there to scrutinize the mechanisms, in order to understand the spirit and examine this reactivated heritage.
[2013] If Left to their Own Devices: Police Provocation & Terrorists’ Tendency to Fail
Unrest Magazine, 2013
...One of the beautiful aspects of the American judicial system is the notion that defendants are ‘innocent until proven guilty,’ that it is the responsibility of the State to prove guilt, not the accused to prove innocence. This places the burden of proof on the one doing the jailing and not the other way around. Now while such a judicially-intentional design is often perverted through methods such as the Grand Jury indictments of social movement participants, for the majority of everyday criminals, one enters the court room with the presumption of innocence. While it is thus the responsibility of the accused to solely prevent the demonstration of their guilt, when in the criminal planning stage, with provocateurs and clandestine agents afoot, it becomes the responsibility of underground conspirators to not only prevent the State from demonstrating their guilt, but also one must prevent the police from forcing their hand. The lesson here is simple, while you can prevent self-incrimination in a court of law, in the court of dissenting, revolutionary street politics, you DO NOT have the right to avoid self-incrimination, and in fact, great powers may have mobilized against your self-interest to prove just that.
Targeted killings of suspected terrorists in the light of the right of self-defence
2015
espanolEl objetivo de este articulo consiste en examinar y discutir si el uso de aviones no tripulados -cuando se utilizan como estrategia para acabar con la vida de terroristas- queda enmarcado, validamente, dentro del ambito de aplicacion del articulo 51 de la Carta de la ONU. Consecuentemente, los requisitos establecidos por la mencionada Carta seran debidamente analizados. Ello nos permitira concluir si los drones cumplen o no con los requisitos legales exigidos -fundamentalmente- por el derecho a la legitima defensa, ajustando en caso contrario la interpretacion del Derecho Internacional a los intereses nacionales de algunos paises francaisCet article a pour fin l’analyse et la discussion de savoir si l’usage d’engins non pilotes, lorsqu’ils sont utilises comme strategie de guerre afin d’eliminer des terroristes presumes, s’ajuste aux conditions marquees par l’article 51 de la Charte des Nations Unies. L’etude des exigences du droit de legitime defense permettra conclure si l’u...