Academic journal article Journal of Theoretical & Philosophical Criminology

The Overlap between War and Crime: Unpacking Foucault and Agamben's Studies within the Context of the War on Terror

Academic journal article Journal of Theoretical & Philosophical Criminology

The Overlap between War and Crime: Unpacking Foucault and Agamben's Studies within the Context of the War on Terror

Article excerpt


This article will consider the current convergence between war and crime by unpacking Foucault's analysis of power and Agamben's elaboration on the conjunction between the banning of a life and the constitution of the polity. It will show that these perspectives link together crime and war as mechanisms that contribute to the governance of the population by legitimating authority and their use of force through the military and the police while excluding part of the population. It will expose how these convergences highlight the problem of the political in the constitution of the social order at the global level. In the current contingency, crime and war are strongly implicated in the crucial political function of calling people to share their similarities and differences, and yet are not the best mechanisms for dealing with the sharing of a world in common.

Key Words

Foucault; Agamben; war; crime; war on terror; international sphere.


Almost ten years ago, 9/11 stimulated a vast number of studies and arguments concerning the proper definition of the events that marked that day: was it a crime? An act of war? A clear interpretation of this event was crucial in order to determine the appropriate reaction to it. Was it for the legal system to intervene or for the military apparatus? Despite the fact that the population and media seemed to classify 9/11 as an act of war, thereby providing legitimacy for the launching of the "war on terror", and the following intervention in Afghanistan, many scholars challenged this interpretation. They questioned not only the act of defining 9/11 and the reaction to it as a "war", but also underlined how 9/11 should be conceived as a "crime against humanity", and thus called upon the international institutions to deal with it (Cassese, 2002; Megret, 2002; Slaughter and Burke-White, 2002).

In criminology, the relationship between war and crime has been specifically studied by the pioneer Karl Mannheim in the late 1930s. According to Mannheim (1941), these two phenomena have some crucial differences: war is usually conceived as a group action whereas crime an individual one: "crime is always wrong, war is wrong only according to circumstances" (Mannheim, 1941, p. 6) but, on closer exploration, the pioneer of criminology highlights how these lines of distinction can easily become blurred once we consider that crime can take on the character of war when committed not only outside the group but also inside it (Mannheim, 1941). He concludes: "to a large extent there is no fundamental difference between war and crime, as far as injurious actions against members of the other group are concerned. The opposite of war is not so much peace in its modern sense, but simply the absence of violence" (Mannheim, 1941, p. 11). War and crime are therefore two ways of conceptualising violence towards other humans both within and outside one's group. Can we still regard these distinctions as valid in the current context of the war on terror? What precisely links war with crime, apart from violence?

In the current war against terrorism, the notion of the enemy and that of the criminal have converged and, with this, the practices of the military apparatus were utilised in conjunction with the techniques of arrest and incarceration that are typical of the criminal justice system. Since the start of the war against terrorism, states actions have been directed against enemy states but also against unlawful combatants, thus blurring the enemy-criminal distinction. The definition of certain states as rogue seems to be calling for some form of sanction. Military operations against states comprised a range of practices typical of the criminal justice system, legitimised for reasons of national defence: indeterminate detention, arrest warrants, and rendition flights for suspected terrorists, to name but a few. This happened not only in war zones but also within national borders. …

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