Published in opendemocracy.net on Aug. 05 :: By V. Nagaraj ::
Earlier this year, the UK Government tried to replace its use of Anti-Social Behaviour Orders (ASBOs) with Injunctions to Prevent Nuisance and Annoyance (IPNAs). This would involve allowing the Courts to restrict any action “capable of causing nuisance or annoyance” by any person, in any place. The move came despite the Parliamentary Home Affairs Committee noting that with each successive amendment “…the definition of anti-social behaviour has grown wider, the standard of proof has fallen lower and the punishment for breach has toughened. This arms race must end.”
The UK plan is part of a constant push by governments everywhere to widen the net of penal controls. There is also a groundswell of support for such measures, generated by security panics, and the ‘risk’ and ‘fear of crime’ industries. Preventing the criminal justice system from being reduced to an instrument to deal with the failures of discriminatory social policies, grossly iniquitous economic distribution and political exclusion, presents one of the biggest challenges to human rights advocacy today.
Even though much human rights work is focused on the criminal justice system, far too often it tends towards simply demanding the application of standards, and is insufficiently underpinned by a critical examination of dominant penal discourses. For example, human rights organisations continue to campaign relentlessly, and rightly so, for more humane prison conditions, but they do not ask why prisons exist. Or, perhaps more importantly, what purpose prisons serve in contemporary societies?
The criminologist Barbara Hudson has noted that the critique of dominant penology and the alternative generally offered by human rights is “technicist” in character. The focus is largely on “second-order questions”, such as identifying which prison regime can best deliver reform, public protection or retribution; or how best can prisons be managed?
The dominant human rights approach has addressed itself to values that criminal justice is supposed to encompass. The problem, however, is insufficient “…attention to the outcomes of criminal justice and penal processes… [And] while such penology may appear to criticize, it is not critical in the sense of wanting to bring about any profound change in the state’s penal strategies” (Hudson again).
Part of the problem is that criminal justice discourses increasingly lack deep analysis of socio-economic context, including structural exclusion and marginality and its links with crime. Dominant ways of doing human rights has echoed these very exclusions and silences—as argued by in a previous post by Fateh Azzam.
The failure of the human rights community to challenge seismic shifts in the UN’s approach to criminal justice is telling. The Guiding Principles adopted by the 7th UN Crime Congress in 1985 noted that “[i]n view of the staggering dimensions of social, political, cultural and economic marginality of many segments of the population in certain countries, criminal policies should avoid transforming such deprivation into likely conditions for the application of criminal sanctions.” The document further argued that criminal justice policy should
“… proceed from the principle that the establishment of genuine social justice in the distribution of material and spiritual goods among all members of society, the elimination of all forms of exploitation and of social and economic inequality and oppression, and the real assurance of all basic human rights and freedoms represent a principal hope for the successful combating of crime and its eradication from the life of society in general.
However over the next decade and a half there was a decisive shift in the approach and language, despite the phenomenal expansion of the UN human rights system. Hence the Vienna Declaration on Crime and Justice, adopted by the UN General Assembly in 2001, for instance, contains just one passing reference to human rights (largely in a procedural sense), and poverty respectively, and offers no serious comment of the structural causes or socio-economic context of crime.
By 2008, the ECOSOC, in a resolution on urban crime, was calling on states to “…integrate crime prevention considerations into all relevant social and economic policies and programmes”. In contrast to early formulations, which emphasised social justice and the relevance of structures of inequality and marginality to criminal justice, the stress is to integrate crime control into all aspects of social policy.
And fittingly enough in the context of a global political economy that has generated spiraling inequality, the victims of dispossession and impoverishment whether in Brazil, South Africa, Europe, USA or India, have now become dangerous and high risk. The capitalist welfare system is not just being slashed but being transformed into a punitive regime that can criminalize the poorest and the most vulnerable.
The influence of crime control on social policy has pushed many vulnerable groups onto a conveyor belt of control and criminalizationthrough measures that target persons, status or behaviour categorised as social problems (e.g., homelessness, drug use, irregular migration, infectious diseases). While the consequences of controls on individuals vary, what is sanctioned is ever widening. Criminal justice and law enforcement have come to be increasingly driven by ideas and approaches such as ‘quality of life’ policing, or combating anti-social behaviour, that are increasingly disconnected from any “… real assurance of all basic human rights and freedoms”.
As the human rights organisation Liberty argued with respect to ASBOs, the constant expansion of such penal measures “dangerously blur the distinction between serious criminal activity and nuisance; create personalised penal codes that set the young, vulnerable or mentally ill up to fail; […and] have the effect of fast-tracking individuals into the criminal justice system rather than diverting them away.”
There is an urgent need to fundamentally reset the human rights engagement with crime and criminal justice, drawing upon the large body of work of critical criminologists as well as the experience of those who work with frequently criminalized communities. This should include an examination of the consequences of privileging the relentless expansion of state power as well as how ideas like ‘protection’ and ‘victims rights’ are instrumentalised and deployed in ways antithetical to human rights.
Human rights organisations must recognise that forms of crime control are intricately tied to political cultures and uncover how social and economic policies that cause marginality force people into the ambit of control and criminal justice regimes. This includes understanding how privatisation of criminal justice works to expand the web of control and penalization.
Fundamentally it is also a question of how human rights discourse and advocacy deal with poverty and structural exclusion. If it is to remain relevant, human rights advocacy must go beyond technicist approaches and norm peddling and counter both the increasing penalization of poverty in the face of social insecurity and, as Wacquant and others have argued, public policy that joins the hand of the market to the iron fist of the penal state.
V. Nagaraj is an independent researcher, with experience in community organization, rights advocacy and academic work in India, and human rights policy research at an international level.