Strife

The Academic Blog of the Department of War Studies, King's College London

You are here: Home / Archives for Series

Series

Strife Series: Legal Violence and Legitimacy Building in the United States - The Torture Memos & the Legacy of U.S. Empire, Part II

by

Then-US army Reservist Lynndie England forcing an inmate to crawl and bark like a dog on a leash, from the Abu Ghraib Prison abuse scandal, Iraq. Photo Credit: US Government, Public Domain.

The last instalment in this series laid out the basic facts of the Bush Administration’s plan to justify the use of torture through narrow interpretations of the terminology used to describe the practices labelled as “enhanced interrogation.” This article will be centred on the practices that skirted the legal category of torture under Bybee’s framework.

Torture’s Implementation and Impact

Contrary to Bybee’s claim about the effects of waterboarding, Zubaydah did have immediate and longstanding psychological impacts. New York Times article by Carol Rosenberg discussing some of the negative impacts of the Program, Zubaydah was waterboarded eighty-three times over 4 years. In a declassified Senate Intelligence Committee report from 2014, the CIA’s program was described as “brutal and far worse than the C.I.A. represented.” In Zubaydah’s own words he stated, “They kept pouring water and concentrating on my nose and my mouth until I really felt I was drowning, and my chest was just about to explode from the lack of oxygen.” Zubaydah further describes the immense pain he experienced in other torture methods. During the practice of “walling,” he states how he was blindfolded and had his head forcefully struck into a wall behind him. Rosenberg’s article details how with each strike, he was blinded for a few moments, would collapse, and “be dragged by the plastic-tape-wrapped towel ‘which caused bleeding in my neck.’” Zubaydah also states how he was denied sleep by being bound in uncomfortable positions and doused with water for “maybe two or three weeks or even more,” experienced convulsions and vomiting during waterboarding, and even lost consciousness.[i]

Contrary to the Bush Administration’s official position, prolonged physical and mental suffering were direct impacts of America’s use of torture. As detailed in How America Tortures, Mark P. Denbeaux writes that the CIA “The CIA admitted that sleep deprivation can induce hallucinations; however they falsely claimed, ‘those who experience such psychotic symptoms have almost always had such episodes prior…[ii]’” Denbeaux also references the Senate Select Committee on Intelligence findings that “…five detainees experienced ‘disturbing’ hallucinations during prolonged sleep deprivation (e.g., one detainee was ‘visibly shaken’ by his hallucination of dogs mauling and killing his sons and family). In at least two of those cases, the CIA continued the sleep deprivation.” Denbeaux also cites well-established psychological research that maintains sleep deprivation has negative impacts on mental stability within twenty-four hours. Even in this short time, individuals can develop permanent visual distortions, anxiety, and instability. Within thirty to forty-eight hours, illusions and simple visual hallucinations begin. Complex visual hallucinations occur within fifty-three hours, auditory within sixty, and develop within seventy-two.[iii] Denbeaux also writes how PTSD and other mental disorders are strong possibilities in those subjected to psychological torture. He states “Researchers conducted a survey on the use of physical torture as opposed to psychological torture, and the ‘researchers collected medical assessments of whether the torture survivors showed signs of PTSD…’They found no difference in the prevalence of this disorder between the two groups.[iv]” Following his torture, Zubaydah developed numerous mental and physical ailments as detailed in an LA Times article which states “…he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about two hundred seizures… Already, he cannot picture his mother’s face or recall his father’s name. Gradually, his past, like his future, eludes him.[v]”

Sources of Justification for Torture

After the memos were released, they quickly became the subject of public scrutiny and critique. Jack Goldsmith, who took over the OLC in 2003 stated the legal analysis they put forth was “deeply flawed” and “sloppily reasoned.[vi]” Instead of serving any tangible aim, the US use of torture exemplified a blatant disregard for the US Constitution as well as human rights. According to Torture and the Biopolitics of Race by Dorothy E. Roberts, these practices, whether occurring under the Bush administration or elsewhere in US History serve to uphold US hegemony and are an embodiment of white supremacist ideals. According to Roberts, the use of torture can be seen throughout the history of the US, especially in the colonial context. During the US colonial administration in the Philippines, torture was frequently used with overtly racist motivations. During the coverage of an insurrection, American correspondence stated Filipinos were “little better than a dog,” and that US troops were “not dealing with civilized people.” William Howard Taft, who was Governor-General at the time stated that the conflict was a war “between superior and inferior races.[vii]” During the Vietnam war, similar sentiments are echoed, as the US continued previous practices from the French colonial administration.[viii] On the use of torture during the War on Terror, Roberts writes that those attempting to justify the US’ actions “…focused largely on the precise definition of torture, or, more precisely, narrowing the definition enough to exempt U.S. officials from criminal liability under international and domestic laws.[ix]” Referring to the celebratory nature of lynching in the US, Roberts states “Whites purchased photographs of the mutilated bodies as mementos of the event and mailed gruesome picture postcards to their friends and relatives.[x]” She continues “…scholars have noted parallels between the contemporary mass circulation of photographs showing scenes of sexualized torture… Some poses in the Abu Ghraib photographs strikingly (and perhaps deliberately) mirror lynching iconography-the hooded detainee with a noose around his neck; the naked detainees posed in sexually humiliating positions, lacerated, shackled, and held by a dog leash; the U.S. soldiers grinning triumphantly in front of their degraded victims.[xi]” Islamophobia has been a foundational effort of the War on Terror since its earliest stages. According to Khaled A. Beydoun in Exporting Islamophobia in The Global “War on Terror,” this racism is best exemplified by President George W. Bush’s words “This is not . . . just America’s fight. And what is at stake is not just America’s freedom. This is the world’s fight. This is civilization’s fight. This is the fight of all who believe in progress and pluralism, tolerance, and freedom . . .. The civilized world is rallying to America’s side.” Bush’s words are a clear us vs them mentality with the “them” being a faceless and ambiguous yet inherently Muslim enemy.[xii] Since any Muslim has been presumed as a lesser enemy, the inhumane treatment is automatically justified.

Conclusion

Despite having declassified much of the information surrounding the use of torture in the War on Terror during the Obama administration, historical acknowledgement of the practice remains sparse. Additionally, torture has not been completely expunged from the possibility by the United States. In 2016, during his presidential campaign, Donald Trump stated the US should “bring back a hell of a lot worse than waterboarding,” adding “I like it a lot. I don’t think it’s tough enough.” Likewise, racialized comments remain within US political vernacular. As to why the US should continue to practice torture, President Trump stated, “We have to fight so viciously and violently because we’re dealing with violent people, vicious people.[xiii]” With the sentiment of “us vs them” remaining dominant in the US counterterrorist strategy (and to some extent policing domestically), the likelihood that torture will once again be implemented has not completely diminished.

[i] Carol Rosenberg, “What the C.I.A.’S Torture Program Looked like to the Tortured,” The New York Times, December 4, 2019, https://www.nytimes.com/2019/12/04/us/politics/cia-torture-drawings.html.

[ii] Mark Denbeaux et al., “How America Tortures,” papers.ssrn.com, December 2, 2019, 26, (Rochester, NY, November 27, 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3494533.

[iii] Denbeaux, et al., 29

[iv] Denbeaux, et al., 37

[v] Joseph Margulies, “The Suffering of Abu Zubaydah,” Los Angeles Times, April 30, 2009, https://www.latimes.com/archives/la-xpm-2009-apr-30-oe-margulies30-story.html

[vi] Michael Isikoff, “Torture Report Could Be Trouble for Bush Lawyers,” Newsweek, February 13, 2009, https://www.newsweek.com/torture-report-could-be-trouble-bush-lawyers-82707.

[vii] Dorothy E. Roberts, “Torture and the Biopolitics of Race,” University of Miami Law Review 62, no. 229, (2008): 241, https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1574&context=faculty_scholarship.

[viii] Roberts, 241-242

[ix] Roberts, 237

[x] Roberts 234

[xi] Roberts, 234

[xii] Khaled A. Beydoun, “Exporting Islamophobia in the Global ‘War on Terror,’” New York University Law Review Online 95, no. 81 (2020): 82, https://www.nyulawreview.org/online-features/exporting-islamophobia-in-the-global-war-on-terror/.

[xiii] Rory Cox, “Historicizing Waterboarding as a Severe Torture Norm,” International Relations 32, no. 4 (September 20, 2018): 488–512, https://doi.org/10.1177/0047117818774396.

Strife Series: Legal Violence and Legitimacy Building in the United States - The Torture Memos & the Legacy of U.S. Empire, Part I

by

Photo from Abu Ghraib prison, Iraq, detailing detainee abuse. Photo Credit: US Government, Public Domain.

The Torture Memos are a collection of documents from the US Justice Department Office of Legal Counsel regarding the use of torture against alleged members of al-Qaeda. The basic motivation of these documents was to determine whether the United States’ practice of “enhanced interrogation techniques” constituted torture under US and international law. They unilaterally justified the US’ practices. After the memos were leaked in 2004, they were lambasted as a clear disconnect from the War on Terror’s emphasis on protecting human rights. The memos are an extension of the legal strategies used to legitimize violations of liberal principles in order to maintain U.S. hegemony and empire. In this article, I will discuss the basic provisions of the torture memos. The next installment in this series will focus on the implementation and impacts that the Bush Administration’s controversial legal strategies caused.

Narrow Interpretations, Broad Implications

The first memo, titled Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A, was authored by Jay Bybee, then-Assistant Attorney General, on 1 August 2002. Addressed to Counsel to the President, Alberto R. Gonzales, this document breaks down Section 2340 and requests the Office of Legal Council’s opinion on what constitutes torture under this statute. Bybee’s arguments are vague, and many were later determined to be untrue. From the earliest sections of this memo, Bybee asserts that torture is a very narrow practice according to Section 2340. He states the statute “makes it a criminal offense for any person ‘outside of the United States to commit or attempt to commit torture,’” adding that the statute defines torture as an “act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering… upon another person within his custody or physical control.”[i] Bybee hones in on the language of the statute, stating it “requires that severe pain and suffering must be inflicted with specific intent…” adding “the defendant had to act with the express ‘purpose to disobey the law’ in order for the mens rea element to be satisfied.”[ii] According to Bybee, infliction of pain without “specific intent” does not violate the statute. If a defendant commits an act that does inflict pain with the knowledge that pain is likely, but not certain, “general intent” is satisfied, disqualifying the perpetrator from torture.[iii] Bybee further dissects the language of the statute, arguing that it does not define “severe” in relation to physical pain and “prolonged” in relation to mental harm. Bybee’s interpretation is that torture, as defined by Section 2340, is “not the mere infliction of pain or suffering on another, but is a step well removed. The victim must experience pain…equivalent to the pain that would be associated with serious physical injury so severe that death organ, failure, or permanent damage resulting in loss of significant body function will likely result. If that pain or suffering is psychological, that suffering must result from one of these acts outlined in the statute, in addition, these acts must cause long-term mental harm.”

In section II, Bybee argues that international law reinforces his interpretation of 2340. He references the UN Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT), which states that torture is

“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

In response, Bybee states, Accordingly, severe pain or suffering need not be inflicted for those specific purposes to constitute torture; instead, the perpetrator must simply have a purpose of the same kind… the pain and suffering must be severe to reach the threshold of torture.[iv]”

Bybee authored another memo titled Interrogation of al Qaeda Operative in which he addressed John A. Rizzo, General Counsel of the CIA, following a similar request to that of the Gonzales. This document covers the torture of Abu Zubaydah and goes into detail about the interrogation practices in question. At the time, Zubaydah was incarcerated in the US under the presumption that he had information on terror cells and plots in the US and Saudi Arabia. According to Rizzo and the CIA, the level of “chatter” surrounding the supposed cells warranted an “increased pressure phase” which was ultimately the interrogations involving torture. He states that the “interrogations” will last “no more than several days but could last up to thirty days” and will employ 10 techniques to “dislocate expectations regarding the treatment he believes he will receive and encourage him to disclose the crucial information” and employ ten different methods.[v] In describing these methods, all of which involve a degree of physical pain, discomfort, and/or mental strife, the illusion to specific intent is seen. In describing one of these methods, called “facial/insult slap” where an interrogator slaps a prisoner in the face in such a way to increase pain, he writes the intent is to “not inflict physical pain that is severe or lasting. Instead… to induce shock, surprise, and/or humiliation.”

Waterboarding is one of the more infamous methods that the US employed during its duration of the use of torture. Bybee’s memo discusses the practice in detail, and establishes the Bush administration’s legal strategy around this unsavoury tactic as follows:

“…the individual is bound securely to an inclined bench… The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. Once the cloth is completely saturated and covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds… this causes an increase in carbon dioxide in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of ‘suffocation and incipient panic’ i.e., the perception of drowning.” He continues by stating “You have orally informed us this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning.” Bybee also acknowledges technique will be used on Zubaydah stating a medical professional would be in attendance to “prevent severe mental or physical harm to Zubaydah.[vi]”

Bybee goes on to claim that these methods, waterboarding included, did not result in “prolonged mental harm.” Because the tortured subject “may” be aware that they are not drowning despite the fact they feel like they are, the act cannot be considered torture because of the purported sanitizing quality of this possibility. Additionally, he focuses on the lack of physical pain involved in simulated drowning. He references his memo to Gonzales stating “’ pain and suffering’ as used I section 2340A is best understood as a single concept, not distinct concepts…the waterboard, which inflicts no pain or actual harm whatsoever, does not in our view inflict ‘severe pain or suffering…[vii]’”

[i] Jay Bybee, “Memorandum for Alberto R. Gonzales, Counsel to the President Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A,” August 1, 2002, 2–3, https://nsarchive2.gwu.edu/NSAEBB/NSAEBB127/02.08.01.pdf.

[ii] Bybee, 3

[iii] Bybee, 3

[iv] Bybee, 14-15

[v] Jay Bybee, “Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency Re: Interrogation of al Qaeda Operative,” Justice.gov, August 1, 2001, 1 , https://www.justice.gov/sites/default/files/olc/legacy/2010/08/05/memo-bybee2002.pdf.

[vi] Bybee, 3-4

[vii] Bybee 11

Strife Series: Legal Violence and Legitimacy Building in the United States - Introduction

by

The White House at Night. Photo Credit: Robert Scoble, licensed under Creative Commons.

The history of United States foreign policy is a fascinating and complex subject. It is marked by the disparity between its successes and its failures. American contributions to the international system range from constructive and valuable to destructive and destabilizing, and the nature of the United States political ecosystem ensures a level of discontinuity from year to year. At its best, the United States acts as the ultimate guarantor of enforcement behind international governing bodies like the United Nations or the World Trade Organization. At its worst, it can delegitimize all the above and cause crises of faith in global governance. The one unifying thread between all the disparate manifestations of US foreign policy is its domestic law. Everything the US does abroad must conform with the law of the land. This series will focus on how the law has been both sword and shield for the controversial agendas of presidential administrations in the last 50 years.

In collaboration with my esteemed colleague, David A. Harrison, the actions of Presidents Ronald Reagan and George W. Bush will take center stage in an analysis of how the law was manipulated to normalize and justify state violence abroad. We have selected these two administrations because their abuses were particularly well-documented and there is plenty of room for discussion, but it should be noted that the techniques used by Reagan and Bush are by no means unique to their presidencies. Future administrations led by Democratic presidents have extensively used the tools given to them by their Republican predecessors, but the legal strategies themselves were pioneered by conservatives.

The Reagan Administration’s Contradictory Foreign Policies

During the 1980s, the United States split its focus between its global fight against the spread of workers movements and communism, and the suppression of drug trafficking. The Reagan administration considered these maxims as the core components of its foreign policy. In Latin America, these two agendas frequently ran into conflict with one another, as the Drug Enforcement Administration and the Central Intelligence Agency had competing interpretations of how to realize Reagan’s vision. The DEA needed to stop the flow of cocaine into North America, but the Central Intelligence Agency had a vested interest in keeping the Narcos afloat because their funds were being used to underwrite legally dubious ‘regime change’ activities throughout the Latin American region. The expansion of executive power and administrative authority during the Cold War gave the intelligence community a significant degree of autonomy that the Reagan cabinet was keen to take advantage of. As a result, Reagan’s foreign policies were disjointed and frequently undermined by the competing interests of his underlings.

Harrison’s first installment in the series will focus on how the intelligence community used its new powers to back politically repressive movements, to the detriment of both Latin and Central American communities and Reagan’s own agenda. This scattered and problematic approach brought attention from Congress, and an attempt was made to make the CIA account for its actions. We will discuss the CIA’s strategy to avoid Congressional oversight and we will pierce through its smokescreen by questioning the validity of the arguments made by the Reagan administration’s legal counsel.

The Bush Administration’s Legal Torture

The last two parts of the series concentrate on a specific set of documents produced by the United States Department of Justice under the Bush Administration colloquially known as the Torture Memos. During the War on Terror, the United States began pursuing a highly controversial campaign of violence against prisoners of war that were alleged to have information about the operations of the terror group known as al-Qaeda. Under both international law and the domestic laws of the United States, torture is illegal. This fact was merely an inconvenient stumbling block for the Bush administration, as emergent legal strategies such as the Unitary Executive theory had already given the President the tools necessary to evade the law.

Harrison’s two-part series on the torture memos explains the legal ramifications of the Torture Memos and how they affected Abu Zubaydah—a Saudi Arabian man imprisoned on the presumption of involvement with terrorism. This case illustrates how a legal strategy can translate directly into state violence, and how important it is to resist the discursive minimization of practices such as water boarding. The Bush Administration argued that its ‘enhanced interrogation’ techniques were not capable of causing permanent psychological distress, and repeatedly denied the status of its detainees. Harrison engages the Bush administration’s arguments on a substantive level with evidence from psychiatric medical professionals and explains why these flimsy defenses must be categorically rejected.

Conclusion

My hope in creating this series is to shed light on the interconnected nature of law and state violence, and to show the disconnect between what is legal and what is ethical. The cases included in this series are narrowly focused on how the phenomenon manifests in the United States, but the law has been the primary tool of the state in maintaining its monopoly on force since antiquity, and its importance has only waxed since the enlightenment. Understanding how systems of power remain in place requires a much deeper reading of history, but the content of this series should provide insight into how the United States manages dissidents and keeps its hegemonic status intact.

Sinews of War: Financing French Resistance

by

Objects Linked to the Occupation of France, 1944. Source: Adobe Stock Images, provided by the author under license.

‘If money be the sinews of war, it may be said to be the framework of Resistance and the punctual despatch of the very large sums needed to keep an Underground Movement, or Secret Army, in being was one of the greatest and, in every sense of the word, heaviest, preoccupations of the Sub-Section.’[i]

When thinking about French resistance during the Second World War, sabotage missions, intelligence gathering and the creation of escape lines for downed Allied pilots are likely to be at the forefront of any reflections. However, according to the 1944 official history of Section ‘RF’ of the British Special Operations Executive, the transportation of money was one of the most pressing concerns for those engaged in the underground war against German occupation. Operating under the aegis of the Ministry of Economic Warfare, ‘RF’ were one of the groups tasked with setting France ablaze. Working alongside the Gaullist Bureau Centrale de Renseignement et d’Action, they organised some of the most audacious special operations undertaken during the conflict. However, these missions risked being impossible to undertake were it not for the increasingly regular injections of cash it provided. Yet, historians have largely ignored the financial aspect of this irregular warfare. The importance of international fundraising, the logistical difficulties experienced when transporting money and the successful use of banditry in a martial context should be highlighted.

Importance of International Fundraising

The internationalised nature of French resistance funding is important to underline. Acquiring funds from within France was an exercise fraught with danger.[ii] In the context of the French economy under occupation, it was difficult for the heads of networks to procure the large amounts of cash needed to support those who were eking out their wartime existence on the black market.

Funds came primarily from the British government, but it was not the only source. From the earliest days of General de Gaulle’s Free French movement, private donations found their way to his London headquarters in Carlton Gardens. However, these gifts were sporadic and often in small amounts. Supporters of the Free French would send precious objects to be sold, including diamonds, with the proceeds being put towards the financing of the external resistance movement.[iii]

As the conflict progressed, financial support increased from further afield. Delegations were founded by French émigrés and Francophiles in Allied and non-belligerent nations. The largest of these groups were established in South America, notably in Argentina, Mexico, Uruguay and Chile. They organised dances and conferences designed to foster the movement’s soft power and fundraise on their behalf[iv].

At the end of 1943, a funding drive in the rallied French colonies sought to raise money for the Gaullist movement. This led to the greatest increase in money available to French resistance groups since the beginning of the conflict. Of the 4.3 million francs sent from New Caledonia, in the Pacific, 1.8 million francs were donated by the French expatriate community, companies gifted 1.2 million, fêtes and dances raised nearly 750,000 francs and 325,000 francs came from the indigenous Kanaks and the Asian community.[v] The islands’ inhabitants donated 61 francs per capita to the ‘Subscription to Help the French Resistance’. To put this into context, the New Caledonian contribution was a mere two percent of the total subscription received. The largest donation, of 141 million francs, came from French West Africa, which was raised over only three months.

Logistical Difficulties

However, the problems that arose when delivering the funding into occupied France continued to trouble mission planners outside of France. One of the main obstacles to providing funds was the weather. Inclement forecasts in December 1943 led directly to a halving in sorties attempted by the R.A.F.’s 161 Squadron. As the squadron’s pilots were involved in flying special operations missions, including money deliveries into occupied France, any meteorological impediments inevitably caused funding shortages in France.[vi]

The difficulties were not over when funds finally arrived in the country, whether transported by an incoming agent or within an airdropped container. The risks of holding money were greatly multiplied due to the unavoidable centralisation that clandestine operations required. Daniel Cordier, the secretary of Jean Moulin, who was de Gaulle’s representative in occupied France, nearly lost the entirety of his monthly delivery, as a thief stole his bicycle from outside a black-market café.[vii] To put this loss into perspective, bicycles cost around 7,500 francs or nearly double the monthly expenditure of an average Parisian family[viii]. Fortunately, Cordier had the presence of mind to take the contents of his side-bags with him into the meeting, but the episode highlights the inherent risks involved when keeping large quantities of illicit funding in the hands of one person.

Banditry Works…

With the chaos wrought by the Normandy landings of June 1944, aerial sorties to supply and fund French resistance groups became a vital lifeline for the estimated 300,000 to 500,000 people living in clandestine conditions.[ix] Moreover, banditry also became more common. In southern France, branches of the Banque de France were robbed of 4.4 billion francs by members of resistance groups. The largest of these raids occurred at Neuvic, in Dordogne. On 26th July, a group of resistance members hijacked a train heading towards Bordeaux and made away with 2.28 billion francs.[x] Unsurprisingly, news of the robbery was withheld from the press, and by June 1945, there were no attempts made to locate the lost money. Elsewhere, in Annonay (Ardèche), the local branch of the Banque de France was robbed on six separate occasions, from July to September 1944, losing a total of 44 million francs.[xi] Armed men forced their way into the branch and, after a ‘lively’ discussion and upon receiving the money, handed a receipt over to the manager in return[xii]. When it is considered that the financial cost of supporting a member of the resistance was estimated to be between 1,000 and 1,500 francs[xiii], these Annonay hauls could have funded around 30,000 to 40,000 resistance members for a month.

To conclude, French resistance funding was international and reliant upon the efforts of those outside of France. Both foreseen and unforeseen problems were experienced with the transportation of money and equipment into areas under enemy occupation. Finally, following the chaos generated by the Allied invasion, banditry became a means by which these groups acquired funding for themselves. While financial constraints may not immediately be associated with global conflict, they certainly proved a driving force behind significant French resistance activity during the Second World War.

[i] The National Archives, Kew, HS7 124, Appendix A, p.9

[ii] Henri Frenay, La nuit finira, (Paris, Éditions Robert Laffont, 1973), p.35-36

[iii] Pierre Denis, Souvenirs de la France Libre, (Paris, Éditions Berger-Levraut, 1947), p.35

[iv] Archives nationales (AN), Pierrefitte-sur-Seine, 3 AG 1 305, France Libre de Gaulle – 1 – Comptes 1940-1943

[v] Archives nationales d’Outre-mer, Aix-en-Provence, 1AFF-POL 879, Résultat complet et détaillé de la souscription du 20 septembre 1943 au 11 novembre 1943 pour venir en aide aux Combattants et Patriotes de France, 22/12/1943

[vi] David Foulk, ‘Homeward Bound: Mapping Clandestine Transportation into France during the Second World War’, War in History, November 2021

[vii] Daniel Cordier, Alias Caracalla, (Paris, Gallimard, 2009), p.531

[viii] Jean-Marc Binot, Bernard Boyer, L’Argent de la Résistance, (Paris, Larousse, 2010), p.17-18

[ix] Olivier Wieviorka, L’histoire de la Résistance, (Paris, Perrin, 2013), (Ebook) Chap. 15, Para. 58

[x] Banque de France (BdF), Paris, 1069199410 1 Prélèvements - Généralités

[xi] BdF, 1069199410 2 Prélèvements irréguliers, Prélèvements effectués à nos Caisses par les FFI, 16/10/1944

[xii] BdF, 1069199410 2 Prélèvements irréguliers, Compte rendu annexe à ma lettre du 2 août 1944 relative aux réquisitions à main armée du 1er août 1944, 09/08/1944

[xiii] AN, AG 3 (2) 276 - 171 MI 108 BCRA, Letter from Colonel ‘Vernon’ to Commandant Lejeune, 04/07/1944

Strife Series: Post-Conflict Political Economy & Development - Toward an ‘Entangled State’: The Place of Informal Institutions in Post-Conflict Statebuilding in Northern Ireland and Liberia

by

“YIP 2010.319 - Mind the moss-filled gap” by smohundro is licensed under Creative Commons.

Informal institutions are generally understood as destabilising forces and obstacles for international peacebuilding processes. In practice, however, formal and informal institutions complement each other through competition over statebuilding assets, resulting in the emergence of entangled institutions – or an ‘entangled’ state. These entanglements present confusing and unexpected post-war outcomes that can appear to undermine statebuilding processes. Rather than a threat to statebuilding processes, informal institutions contribute to statebuilding by creating informal economies or justice systems and holding legitimacy and coercive power in local communities. A contextual framing of entangled states can advance a broader and more thorough understanding of war-to-peace transitions by moving beyond Western value-judgements of the ‘illegal other’ and inviting informal institutions, as an inherent part of statebuilding processes, into ongoing discussions around war-to-peace transitions.

An exploration into the unruly edges between formal and informal institutions in the cases of Liberia and Northern Ireland allows us to find institutions of entanglement that do away with assumptions of formal, state institutions as ‘good’ and informal, non-state institutions as ‘bad’. In both Liberia and Northern Ireland, informal institutions emerged in several forms, creating non-state pockets where the state was unable to function. These institutions emerged in dialogue with the state, forming complementary entities through competition or conflict with their formal counterparts. In both cases, these processes of competition and complementation form dynamic entanglements of formal and informal institutions, in what might be considered a type of symbiosis (Scott, 2010).

Formal and Informal: Finding Distinctions

Whereas ‘formal’ institutions refer to organised groups operating as part of the state, informal institutions are “socially shared rules, usually unwritten, that are created, communicated, and enforced outside of officially sanctioned channels” (Helmke and Levitsky 2004: 727). Organised crime and terrorist organisations are examples of informal, non-state groups that shape negative associations with informal institutions (de Boar & Bosetti, 2015). Informal institutions encompass not only such ‘extralegal groups,’ but other forms of ‘local’ or ‘traditional’ social organisations (Cheng 2018).

After periods of conflict, states and formal institutions are often unable to provide security and civil services that meet societies’ needs. Economies deteriorate, and many find themselves struggling to meet basic survival needs, such as sustenance, shelter, safety, or security — leading to a mistrust of the formal institutions that failed to provide these essential services. In this context, informal institutions become more salient and can mobilise, as formal institutions are either incomplete or cannot be achieved (Helmke & Levitsky, 2004).

Entangled Institutions in Northern Ireland and Liberia

The conflict in Northern Ireland known as ‘The Troubles’ was a period of unrest and violence that began in 1979 and concluded with the Good Friday Agreement (GFA) in 1998.

In the lead-up to the Troubles, inequalities between ‘native’ Republican Catholic and ‘settler’ Unionist Protestant communities sparked several marches, counter-marches, and the resulting violent clashes. Paramilitary groups emerged through divisions of identity in the form of the Irish Republican Army (IRA), representing minority Republican Catholics, and the Ulster Volunteer Force (UVF), representing majority Unionist Protestants. The Royal Ulster Constabulary (RUC) police force, largely made up of Protestants, often sided with Unionists and came to be seen by the Catholic community as an oppressive force (Byrne and Jarman, 2014). During the Troubles, both groups developed informal ‘justice’ systems within their respective communities (Rickard & Bakke, 2021).

As formal security institutions fell away in Catholic areas, the IRA rose to fill the gaps. ‘No-go’ areas formed in Catholic working-class regions like Derry, where police forces would not enter, furthering the erosion of formal state authority (Ó Dochartaigh, 2005).​​ The IRA, along with other Republican groups, took on governance functions in these areas, such as building schools, providing welfare services, replacing public transport services, and creating informal structures of justice and security (Rickard & Bakke, 2021).

These structures survive after war in a self-reinforcing dynamic, as communities who are sceptical of state authorities turn to informal structures, while non-state actors see ongoing maintenance of arms as justified (Rickard and Bakke 2021:30). As a result, paramilitary groups today continue to take on limited governance functions, most palpably in the form of punishment attacks. These groups retain legitimacy, and operate governance functions in areas where there is a continued lack of trust between local communities and formal institutions. Northern Ireland thus can be read as an entangled state, where both informal and formal structures are complementary and competitive agents in the statebuilding process.

Liberia shares a similar history of inequalities across identity cleavages, with ‘native’ Liberians on one side, and ‘settler’ Ameri-Congolese Liberians on the other. Tensions as a result of inequalities across identity divisions came to a head in the Rice Riots in 1979, when peaceful demonstrations received a violent response from the government, solidifying an already deep mistrust of the government from indigenous Liberians. Later, President Tolbert’s assassination and a change in leadership garnered celebrations from indigenous Liberians. However, the expected era of emancipation did not follow, and the legitimacy of the state in the eyes of Liberians disintegrated — along with the state itself. Various rebel groups such as the National Patriotic Front of Liberia (NPFL), led by Charles Taylor, and the many rebel groups formed out of the Armed Forces of Liberia, emerged to take charge (Cheng, 2018). Early in the conflict, orders to protect civilians and encourage market activity allowed Taylor to expand his legitimacy as a leader (Lidow, 2010, p16). The increasingly repressive and violent nature of Doe’s government, particularly against the Gio and Manos people, resulted in increasing ethnic tensions (Cheng 2018; Lidow 2010). Charles Taylor built upon these tensions and anger and undermined the state’s monopoly over violence by arming civilians. Two civil wars between 1989 and 2003 culminated in the signing of the Comprehensive Peace Agreement (CPA). Following this agreement, increasing conflict between unemployed low-skilled youth led to an emergence of ‘extralegal’ non-state groups as a credible third-party for dispute resolution (Cheng, 2018).

As well as this, the NPFL had set up trade structures — establishing the framework for the post-war extralegal structures of trade (Cheng, 2018). Even after the conflict ended in Liberia, practices linked to these trades — such as rubber tapping and mining extraction — continued. To keep these economies in operation, informal justice structures were formed by extralegal groups to clarify local disputes.

These extralegal groups emerged in parallel to other informal institutions long predating the civil wars, such as the powerful customary authorities known as ‘secret societies’, or ‘Poro’ and ‘Sande’ societies (Blair et al, 2018). During the conflict, many people sought recourse from secret societies, leading to their ‘distinct revival’ after waning influence in the 20th century (Ellis, 2006: 270). These authorities survived relatively unchanged throughout the conflict, retaining their legitimacy in the post-war period, mainly due to widespread distrust of formal justice institutions (Isser et al., 2009: 39). Typical punishments chosen by chiefs tend to take on a goal of social reconciliation. One of the ways this is done is through compensation, or repair of the harm, to the entire community. There is also evidence that in some cases, town chiefs will cooperate with formal justice institutions, particularly if one or more parties are dissatisfied with chief rulings (Isser et al., 2009: 26).

Comparing the cases of Northern Ireland and Liberia, it is evident that post-conflict statebuilding processes invoke a number of transgressions against state/non-state, formal/informal and complementary/competitive dichotomies. Northern Irish paramilitary groups and Liberian secret societies and extralegal groups have each competed with the state over governance processes. Although it is generally agreed that the state socialises people into being governed (see Lake, 2010), in post-war statebuilding projects, the reality is that civil society is never a blank slate. In these cases, the ability for informal institutions to socialise their own communities and normalise informal structures of governance grants civil society with viable alternatives to state processes. By historicising informal institutions, we better understand how secret societies and extralegal groups in Liberia and Northern Irish paramilitary groups act as one of the many statebuilding processes linking the ‘state of the past’ with the ‘state of the future’ (Cheng, 2018). For both, diminished local trust in the state due to ongoing discrimination by state forces presented distinct opportunities for informal groups to consolidate their influence upon local communities.

The influence of these informal groups persists, in part due to the normalisation of such institutions (Rickard & Bakke, 2021; Cheng, 2018). In Northern Ireland, paramilitary authorities coerce through ‘punishment’ attacks, earn capital through protection money and drug profits, and win legitimacy through service provisions. In Liberia, coercion is achieved by extralegal groups by force, and by customary authorities through social pressures. In the competition between these informal institutions and their formal counterparts, a coexistence emerges between them. Extralegal groups facilitate commerce to gain capital, and customary authorities facilitate community development capital. Legitimacy is won in part because of the service provisions that these informal institutions provide. In this way, informal institutions can constitute a legitimate and viable alternative to formal institutions — but they are not necessarily severed from them. Informal groups also negotiate, bribe, and communicate with local officials and representatives of the state to achieve their goals (Cheng, 2018; Rickard & Bakke, 2021; Isser et al., 2009). Thus, in the aftermath of war, an exploration into these entanglements presents an opportunity for peacebuilding institutions to move toward a view of informal institutions as an inherent part of the state- and peacebuilding process, rather than one which is intrinsically counterproductive to statebuilding.

Bibliography

Blair, R. A. et al. (2019) Establishing the Rule of Law in Weak and War-torn States: Evidence from a Field Experiment with the Liberian National Police. American Political Science Review. [Online] 113 (3), 641–657.

Byrne, J. & Jarman, N. (2011) Ten Years After Patten: Young People and policing in Northern Ireland. Youth and Society. 43 (2), 433–452.

Cheng, C. (2018) Extralegal groups in post-conflict Liberia: how trade makes the state. Oxford University Press.

Ellis, S. (2006) The Mask of Anarchy: The Destruction of Liberia and the Religious Dimension of an African Civil War. New Ed edition. Washington Square, NY: New York University Press.

Helmke, G. & Levitsky, S. (2004) Informal Institutions and Comparative Politics: A Research Agenda. Perspectives on Politics. [Online] 2 (4), 725–740.

Isser, D. H. et al. (2009) Looking for Justice: Liberian Experiences with and Perceptions of Local Justice Options [online]. Available from: https://www.usip.org/publications/2009/11/looking-justice-liberian-experiences-and-perceptions-local-justice-options (Accessed 2 December 2021).

Lake, D. A. (2010) Building Legitimate States after Civil Wars,” in Strengthening Peace in Post–Civil War States: Transforming Spoilers into Stakeholders. Matthew Hoddie & Caroline A. Hartzell (eds.). Chicago: University of Chicago Press.

Lidow, N. (2010) Rebel Governance and Civilian Abuse: Comparing Liberia’s Rebels Using Satellite Data. [online]. Available from: https://papers.ssrn.com/abstract=1643030 (Accessed 7 December 2021).

Ó Dochartaigh, N. (2004) From Civil Rights to Armalites: Derry and the Birth of the Irish Troubles. Springer.

Rickard, K. & Bakke, K. M. (2021) Legacies of Wartime Order: Punishment Attacks and Social Control in Northern Ireland. Security Studies. [Online] 0 (0), 1–34.

Scott, J. C. (2009) The Art of Not Being Governed: An Anarchist History of Upland Southeast Asia. Yale University Press.