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

Posted: 25 May 2010

See all articles by Colm Campbell

Colm Campbell

Ulster University - Transitional Justice Institute

Fionnuala D. Ni Aolain

University of Minnesota Law School; Ulster University - Transitional Justice Institute; University of Ulster - Transitional Justice Institute

Date Written: May 25, 2010

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

Suggested Citation

Campbell, Colm and Ni Aolain, Fionnuala D., Special Courts, Political Violence and the Law: Empirical Research in the State of Exception (May 25, 2010). Available at SSRN: https://ssrn.com/abstract=1615383 or http://dx.doi.org/10.2139/ssrn.1615383

Colm Campbell (Contact Author)

Ulster University - Transitional Justice Institute ( email )

Shore Road
Newtownabbey, County Antrim BT37 OQB
Northern Ireland

Fionnuala D. Ni Aolain

University of Minnesota Law School ( email )

229 19th Ave. So.
Minneapolis, MN 55455
United States
612-624-2318 (Phone)
612-625-2011 (Fax)

Ulster University - Transitional Justice Institute ( email )

Shore Road
Newtownabbey, County Antrim BT37 OQB
Northern Ireland

University of Ulster - Transitional Justice Institute ( email )

Northland Road
Londonderry, BT48 7JL
Ireland

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