Special Courts, Political Violence and the Law: Empirical Research in the State of Exception

Abstract:     
Exploration of law’s role in the ‘war on terror’ frequently focuses on normative problems of lawlessness (‘anomie’). By contrast, empirically driven socio-legal analyses offer the possibility of charting degrees of juridification of the exception. But if exception is defined largely by departure from quotidian legal standards, juridification raises problematic issues for the norm-exception relationship.
Analysis of this relationship invariably focuses on initial trajectory: from norm to exception. This paper examines the opposite trajectory, from exception to norm, mapping this shift using original empirical data from Northern Ireland’s jury-less ‘Diplock courts’ (whose functions bears comparison with the US Military Commissions established post 9/11). Exploring this trajectory challenges projections of a sealed norm-exception antinomy. Rather, processes of osmosis resulted in the ‘norm’ partly mirroring the exception’s legal contours and increasingly conforming to legal (albeit modified) expectations. Eventually, the exception hybridized with the new norm. The longitudinal dimension of the dataset (circa 400 cases spanning a twelve-year period, analyzed using SPSS) points to increasing juridification of the exception over time, suggesting a centripetal effect for law, supporting claims for a ‘compulsion of legality’.

The contemporary special court increasingly provides a site of interaction of the secret and open states. That interaction is visible not only in the trial proper, but also in the interrogation room’s legal drama. Here the data support the juridification hypothesis, even if they also point to ‘pull-push’ battles over lawyers’ presence and the Northern Ireland/United Kingdom equivalent of Miranda rights – the ‘right to silence’.

Analyzing detainees’ capacity to resist interrogation suggests critical time-lines, with confession unlikely once the line to exceptionality is crossed. Towards exception’s end, the data depict a counter-intuitive prolongation of interrogation. This suggests institutional imprinting or a substitution of extensive for earlier, possibly abusive, intensive interrogation. Overall, analysis exemplifies strategic use of empirical methodologies to explore otherwise inaccessible aspects of law’s role in conflicted state- and non-state interaction.

Keywords: special court, terrorism, insurgency, political violence, military commission, trial, interrogation, miranda, exception, anomie

working papers series