State Monopoly in Using Force/Coercion - Essay Example

? s monopoly of the use of force/coercion 21 March Introduction The has a monopoly on the use of force or coercion, because it is a legitimate entity that holds this authority. However, the boundaries and spectrum of the use of force and coercion are often contested by other actors of society, such as the media and non-government or non-profit organisations (“Coercion” 2001: 173). The Constitution provides for the social contract that legitimises the use of force and coercion, but within rational conditions (Beggan, 2006; Feld 2006). This social contract underscores that the individual relinquishes some form of control to the state, so that the latter can exercise the powers and means to enforce peace and order in society. This report is going to examine the statement ‘As custodians of the states monopoly of the use of force/coercion, the ultimate response by the police to force is the use of firearms.’ It will critically discuss the problems both legal and moral, created by this situation. Furthermore this report is also going to give examples of when police had to use force and justify why police use of force is necessary. Monopoly of the Use of Force or Coercion A state can be defined as a political organisation which possesses sovereign authority within a distinct territory and exercises its power through a set of enduring institutions which in liberal democracies include Heads of State [Presidents or Monarchs], central governments and their bureaucracies, legislatures, judiciaries and the organisations of regional, state and or local government, the armed forces and the police (Earlham Sociology Pages 2011). The state monopolises the force or use of coercion, which must be considered legitimate and rational (Ayling and Grabosky 2006; Harmon 2008). The legitimacy of this monopoly is derived from the acceptance of the individual of his/her membership in the political community (“Coercion” 2001: 173). By this acceptance, individuals empower the state to preserve and uphold peace and order (“Coercion” 2001: 173). The arrangement is considered as “rational” and the rationality comes from the instrumentality; the people accept that through the state, there is an instrument to peace and development, compared to without the state (“Coercion” 2001: 173; Murji 2009: 25). The state then uses force or coercion that it finds necessary to promote its rational goals (Dedek 2010). Nevertheless, coercion and force concerns a scale that is, now and then, questioned by the citizenry and other non-state actors (Feld 2006). A usual example is “excessive use of force against civilians” that sometimes gets media attention or is played up by the media. This also consists of actions that prevent or affect freedoms of expression by the press or the people. When firearms are particularly used, even for intimidation or coercion purposes, the state is asked if it truly protects the welfare of the people or its own political and economic interests. By this, critics refer to the use of coercion as defined by Max Weber. Marxist political theory positions coercion within the state. The state is argued as the “organised coercive power of one class over another” (“Coercion” 2001: 173). This theory affirms liberal political theory which stresses that coercion is done in the public interest (Hoffman 2002: 208). In Capital, Marx describes the worker as a subject of the “dull compulsion of economic relations” and he notes that the capitalist utilisation of workers is a form of coercion (Hoffman 2002: 208). In a similar light, coercion is more than a repressive activity of the state. It uses physical force on political level to hide its economic motives. The most evident fact is the physical force, but ulterior motives tend to be hidden (“Coercion” 2001: 173). The monopoly on the rightful use of physical force is a political concept developed by the sociologist Max Weber, in his 1918 speech Politik als Beruf ( Politics as a Vocation). Weber contends that the state cannot be viewed by its ends, since there are limited goals which no state would ever want to accomplish, and no specific task is both restricted and unique to the state. He concludes that the state must be seen according to the means that it uses at its disposal: "a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory" (Derman 2010). Some of the stipulations which are applicable to this condition are: 1) Weber wanted to make this statement as part of his observation, but not to argue that the state and violence is always directly related; 2) The state permits the application of force. For instance, the police can use force against violence of self or property; and 3) The word "legitimate" is controversial. To some, it has normative definition, where the state should monopolize force. But for others, it has positive meaning, because of the duties of the state to society (Derman 2010). This essay explored further the legitimacy of the state’s use of force of coercion. Citizens Advice Bureau states: “The police can use reasonable force when they stop and search, but must make every effort to persuade you to co-operate. They should only use force as a last resort.” However, the Home office guide also argues that “The powers police uses are set out under the Police and Criminal Evidence Act 1984 (PACE), which was designed to balance the powers of the police with the rights and freedoms of the general public.” These views assert what Bowling and Foster (2002) argue as the confusion between what “police” and “policing” is. The state uses the “police” to enforce the law and keep peace (Bowling and Foster 2002: 981). Reiner (2000a:1) stresses that there is a different on what is intuitive definition of the police and what policing and the police truly entails: Police refers to a particular kind of social institution, while policing implies a set of processes with specific social functions. “Police” are not found in every society, and police organisations and personnel have a variety of shifting forms. “Policing,” however, is arguably a necessity in any social order, which may be carried out by a number of different processes and institutional arrangements. (cited in Bowling and Foster 2002: 981). He adds that the modern police organisation is only one of the examples of policing. The police in liberal democracies continue to suffer from legitimacy, especially in their use of force and coercion. Since they are the forefront of coercion or force, they are often criticised and attacked for either lack of or excessive use of force. The complex and fragmented nature of modern society, different expectations, development of private policing, changing roots of trust, and failure of the state police to handle crime have been important factors in decreasing the legitimacy of policing (Joh 2004; Terpstra and Van der Vijver 2006). Subsequent themes of police violence, police corruption, discrimination, and excessive use of force, also weakened police legitimacy and public confidence (Savage 2007). The police, nevertheless, continue to exert its power through legitimate powers provided by the state. Recently, there is more exercise of discretion in the use of force, especially firearms, although control is not always applied in pursuing the war against terrorism (Haubrich 2006). The context of modern policing and political challenges present diverse legal and moral issues for the use of force or coercion of the state, which will now be discussed by the paper. Legal Issues of State’s Use of Force or Coercion A legal concern is that the state is a legitimate entity that can monopolise the use of force or coercion. Herring (2007) states that “Under section 38 Offence against the Persons Act: Whosoever shall assault any person with intent to resist or prevent the lawful apprehension or detention of himself or of any person for any offence, shall be guilty... this offence is punishable with a maximum of two years’ imprisonment. It has largely been superseded by the execution of his duty, but may, of course, be used where the person attempting to make the lawful arrest is not a police constable.” Individuals understand that they are decreasing their liberties and autonomies, because of the existence of a governing state: government may act against members of the society only within the bounds of predefined rules (Hoffman 2002: 205). This indicates that due process rights and other legal principles seek to enforce the second concern: the defence of individuals’ liberty against state intrusion (Hoffman 2002: 205). Liberty and security are only significant if they are enjoyed by all, the value of (political) equality is also important as the two mentioned values (Hoffman 2002: 205). Still, there must be a legitimate use of coercion, if the state wants to uphold security and guarantee that its laws are obeyed and transgressors are properly punished. When there is an enemy that refuses to bend to the state’s legitimate force and discards the rule of law altogether, this can be a threat to national security and public safety (Haubrich 2006). The state may respond by using measures that go beyond the conservative limits on the use of state power. It may then be forced to use firearms and other violent forms of force and coercion (Haubrich 2006). Abuse of force and coercion is not legal, however, when the means and consequences are not legitimate in the normative sense. The consequences of governments abusing this process can be foremost (Haubrich 2006: 403). Britain’s fleeting policy of interning, and afterwards abusing, thousands of terrorist suspects in Northern Ireland during the 1970s is one of the most famous examples (Haubrich 2006: 403). With every extra person who vanished in police custody, many more friends and family members opposed government (Haubrich 2006: 403). The policy estranged the public from the authorities, relentlessly compromised intelligence gathering in that district and increasingly polarised a previously cracked political environment (Haubrich 2006: 403). After a few years, the government reversed the policy. Here is another example. Edwards and Whitehead (2009) assert that “The Independent Police Complaints Commission announced a criminal inquiry yesterday into the death of Ian Tomlinson, after watching damning footage of a baton-wielding officer shoving him to the ground minutes before he died. Furthermore A second post mortem examination has been ordered and the officer involved, who came forward to his senior officer yesterday, faces possible assault or even manslaughter charges if prosecutors believe he used excessive force which led to the death of the man.” When use of force is used as police brutality, this is already not considered as a legitimate use of force or coercion. Excessive use of force or coercion can also violate human rights. Article 7 of European Convention on Human Rights (ECHR) necessitates the criminal law to be written in a way that makes the extent of a criminal offence understandable and the illegal conduct to be unequivocal (Newman and Middleton 2010: 474). It is also acknowledged that conviction in the drafting of law does not exclude the interpretive actions of the courts (Newman and Middleton 2010: 474). The case of SW v United Kingdom demonstrates that the ‘resultant development’ of an offence by the courts must be “consistent with the essence of the offence” and this development must be sensibly predictable (Newman and Middleton 2010: 474). The character of the ‘reasonable excuse’ defence may, consequently, include many different variations of excuse that need interpretation by the court (Newman and Middleton 2010: 474). It can be stressed by the defendant that the actus reus and mens rea have certainly been ascertained, but there was no unlawful intention behind the activity; the defendant may dispute that there was another criminal activity taking place, as an alternative to the one for which the defendant had been charged; the defendant may consider he had a right in law to follow the proscribed activity (Newman and Middleton 2010: 474). It is argued that the statutory ambiguity intrinsic in building of the ‘reasonable excuse’ defence puts an unnecessary interpretive load upon the courts (Newman and Middleton 2010: 474). This has ended in courts partaking in an ad hoc restriction of suitable excuses to the end where the spirit of the defence may be compromised (Newman and Middleton 2010: 474). Use of force during war must still follow international conventions, or violations of human rights and other bodies of laws can also occur. There were three primary forms of law governing British military forces in Iraq, during which it received allegations of abuse of use of force (Kerr 2008: 403). The Laws of War, also called as the International Humanitarian Law (IHL) or the Laws of Armed Conflict (LOAC), rule the means and methods of war and the security of victims of war (Kerr 2008: 403). International Criminal Law (ICL) has significant overlie with this body of law but is moderately newer, having rooted from the twentieth century efforts at prosecution, and mandated in the Rome Statute of the International Criminal Court (ICC) (Kerr 2008: 403).Human Rights Law is separate from these two bodies of law, in that it obliges states in their conduct with individuals, whereas IHL and ICL compel obligations on individuals and states and stress individual criminal responsibility (Kerr 2008: 403). Though some have opposed the “creeping jurisdiction” of international law through the International Criminal Court and the European Convention of Human Rights, it must be stressed that they were included into UK law with the Human Rights Act 1998 and the International Criminal Court Act 2001, though with some limitations (Kerr 2008: 403). The UK cases of abuses recount to Phase 3 of Operation Telic, the UK military operations in Iraq, which was part of the US-led coalition (Kerr 2008: 403). Phase 1 was preparation and deployment. Phase 2, main combat operations, started on 20 March 2003 and was stated fully applied on 1 May 2003 (Kerr 2008: 403). In Phase 3, stabilisation and reconstruction took place and the UK forces operated next to other coalition forces , where they all followed a joint command structure (Kerr 2008: 403). From May 2003, when the Coalition Provisional Authority (CPA) formally led the coalition, and 28 June 2004 when sovereignty was reinstated in Iraq under the Iraqi Governing Council, Iraq continues to be under formal occupation (Kerr 2008: 403). After the occupation, Security Council Resolution 1546 of 8 June 2004 stressed “the commitment of all forces promoting the maintenance of security and stability in Iraq to act in accordance with international law, including obligations under international humanitarian law” (Kerr 2008: 403). Hence, to summarise, use of force or coercion beyond conventions and laws should apply, or there would be legal ramifications for the state or its agencies. Moral Issues of State’s Use of Force or Coercion One of the moral issues of the state’s monopoly of force and coercion is the violation of human rights. Amnesty International is an international non-governmental organization (NGO) that promotes all the human rights enshrined in the Universal Declaration of Human Rights and other international standards. It estimates that torture is used by state officials in two thirds of the countries of the world (Kerr 2008; Mackinlay 2007). This abuse can be done by isolated individuals or systematically. For instance, through the state's monopoly on violence, it can conduct genocide. An example is the genocide of the Kosovar Albanians in Kosovo (Ronayne 2004). During the 1990s, Kosovo Albanian struggle in Belgrade developed through a non-violent structure (Ronayne 2004: 60). Dr. Ibrahim Rugova led the struggle; he was a literary historian and head of the Democratic League of Kosovo. The “underground Republic of Kosovo” movement aimed for the following goals: avert violent rebellion; “internationalize” the Kosovo issue—from diplomatic arbitration to UN trusteeship; and refute and oppose the legitimacy of Serbian rule and produce a de facto independent Kosovo (Ronayne 2004: 60). By 1997, a new organization, the Kosovo Liberation Army (KLA) was formed and rallied support and power from years of tension and aggravation with Rugova’s evident failure to make significant progress as human rights abuses increased (Ronayne 2004: 60). To respond to the authoritarian and excessive Serb actions, the KLA followed a more fundamental agenda, including aggression and terror to attain its purposes (Ronayne 2004: 60). Yugoslav and uneven Serb forces made a large offence in Kosovo, which accelerated their “ethnic cleansing” operation and ramped up fears of genocide (Ronayne 2004: 60). Serb forces used terror and violence to displace majority of Kosovo Albanians—“some 1.5 million people—from their homes” (Ronayne 2004: 61). Hundreds of settlements were put into fire and many houses were stolen from (Ronayne 2004: 61). Massacres led to innumerable mass graves in Kosovo and in Serbia proper (Ronayne 2004: 61). Mosques, religious places, and schools were methodically destroyed (Ronayne 2004: 61). Rape became a “tool of organized, deliberate terror” (Ronayne 2004: 61). Statistics showed that “at least 6,000 and as many as 11,000 Kosovar Albanians were murdered, with bodies burned in over 500 mass graves” (Ronayne 2004: 61). This was not a mob response, but a clandestine Serbian arrangement, code-named Operation Horseshoe, to drive out Kosovo Albanians from their homeland, which had been prepared months before and demonstrated that while Milosevic was employed in political theatre at Rambouillet, his forces had been preparing to annihilate the Kosovar Albanians (Ronayne 2004: 61). This fits the definition of genocide of the United Nations Genocide Convention on the Prevention and Punishment of Genocide (UNCG), because Serb actions in Kosovo were completely deliberate, designed, and methodical (Ronayne 2004: 61). This example shows how excessive use of force and coercion can be used as a mask for genocide, which has political motives that are not supportive of diverse interests. Instead, the use of force can be used to propagate the “mores” of the dominating class or ethnic group. Sources debate on the moral justification, or lack thereof, of the state’s use of force or coercion. Wakefield and Flaming (2009) state that “The use of force is a sensitive issue in policing because of the prima facie rejection of physical interference as a mean of conducting social business.” However, as an issue of social control Reiner (2000) points out that “it fails to distinguish the specificity of what are ordinarily understood to be control processes. This is that they are essentially reactive, intended to prevent and respond to threats to social order.” Waddington (1999) adds that “For the authority that police officers exercise is granted by the state: they are the custodians of the state’s monopoly of legitimate force.” An article argues that there is a dynamic relationship between a state’s use of repression and insurgent violence, or overall political violence. Beggan (2006) analyses on one particular form of economic grievance, specifically, unemployment levels, as this is a widely accepted indicator of social change and economic grievance. The level of democratic development in the Northern Irish democracy was different for the majority and the minority; therefore, political or social inequalities among these groups were extremely prevalent in this society. During war, the use of force and coercion becomes debated again. In March 2003, the United States, which was backed up by the “coalition of the willing”, invaded Iraq and ousted the administration of Saddam Hussein. After that, the U.S. started a grand agenda of nation-building (Kerr 2008: 401). The United Kingdom has a large role in the introduction to the invasion and in the war and subsequent occupation, a second role played to that of the United States (Kerr 2008: 401). After the invasion, there were a number of accusations of illegitimate killing and abuses of Iraqi civilians were made against British forces in Iraq (Kerr 2008: 401). The grimmest of these assertions was the death of an Iraqi civilian, Baha Mousa, in British safekeeping in September 2003 (Kerr 2008: 401). In 2004, relatives of the victim, as well as the kin of other Iraqi civilians killed by British forces, filed a case to the Secretary of State for Defence under the European Convention for Human Rights (Kerr 2008: 401). Simultaneously, the assertions resulted to a court martial of seven soldiers (R. v. Payne and others) (Kerr 2008: 401). Some incidents of supposed abuse or illegal killing have been inspected and a number of the cases have been heard by the UK criminal and military courts and there are other actions waiting against the Government under the European Convention on Human Rights (Kerr 2008: 401). These cases magnified the arguments against the use of force in times of war. Is war a moral justification to engage in unlawful uses of forces that other conditions would not merit? The British Army preserved that where abuse of Iraqi civilians took place, they have been remote “rotten apple” incidents, and that there was “no evidence of endemic abuse” (Kerr 2008: 401). On the contrary, lawyer Phil Shiner who represented some of the families of the victims in the ECHR cases, argues that they are symptomatic of more across-the-board problems in training and recruitment (Kerr 2008: 401). These cases designate the moral dilemmas for the Army, who are operating in intricate and hazardous environments, such as Iraq, where the boundaries between war fighting and policing and between combatant and non-combatant are hazier (Kerr 2008: 401). They also affect the perceived legitimacy of similar uses of force by both the military and the police. When ethnic minorities are affected, issues of discrimination and racial profiling will also arise (Dedek 2010). Conclusion The state’s monopoly of the use of force or coercion is mandated by law. Socially and philosophically, it is part of the social contract, where the individual relinquishes some of his/her autonomy, so that the state will have the power to impose peace and order in society. However, excessive use of force or coercion can be viewed as the violation of human rights and other individual freedoms and rights provided by international conventions. It can also lead to genocide and other widespread abuses, such as police brutality. As for the moral issues, the monopoly of force questions it used against minorities and in circumstances of war, whether inside the state or outside with other states. It is important for the state to draft engagement rules for these special cases to avoid violation of national and international laws. Reference List Ayling, J. and Grabosky, P. (2006) Policing by command: enhancing law enforcement capacity through coercion. Law & Policy, Vol. 28, No. 4, pp.420-443. Beggan, D.M. 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