Human Rights Prosecutions in Democracies at War

238 Pages·2019·2.427 MB·English

by  Moira Lynch

HUMAN RIGHTS INTERVENTIONS
MOIRA HUMAN RIGHTS
LYNCH PROSECUTIONS IN
DEMOCRACIES AT WAR
Human Rights Interventions
Series Editors
Chiseche Mibenge
Stanford University
Stanford, CA, USA
Irene Hadiprayitno
Leiden University
Leiden, Zuid-Holland, The Netherlands
The traditional human rights frame creates a paradigm by which the duty
bearer’s (state) and rights holder’s (civil society organizations) interests
collide over the limits of enjoyment and enforcement. The series departs
from the paradigm by centering peripheral yet powerful actors that agitate
for intervention and influence in the (re)shaping of rights discourse in
the midst of grave insecurities. The series privileges a call and response
between theoretical inquiry and empirical investigation as contributors
critically assess human rights interventions mediated by spatial, temporal,
geopolitical and other dimensions. An interdisciplinary dialogue is key as
the editors encourage multiple approaches such as law and society, political
economy, historiography, legal ethnography, feminist security studies, and
multi-media.
More information about this series at
http://www.palgrave.com/gp/series/15595
Moira Lynch
Human Rights
Prosecutions
in Democracies at War
Moira Lynch
Department of Political Science
Loyola University Maryland
Baltimore, MD, USA
Human Rights Interventions
ISBN 978-3-319-96907-7 ISBN 978-3-319-96908-4 (eBook)
https://doi.org/10.1007/978-3-319-96908-4
Library of Congress Control Number: 2018953163
© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature
Switzerland AG, part of Springer Nature 2019
This work is subject to copyright. All rights are solely and exclusively licensed by the
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Cover image © Moira Lynch
Cover design by Fatima Jamadar
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A
cknowledgments
The long journey of this book began when, while studying abroad in
Dublin, I took a bus to Northern Ireland to travel on my own. I was
enrolled in a Northern Ireland Politics course at University College
Dublin and I was enthralled, but I had so many unanswered questions
about the conflict and the role of justice in it. Many people in Belfast and
Derry generously gave their time to meet with me during that visit and
what I thought I knew or understood about the conflict gradually unrav-
eled while I was there. Three years later, I returned and attended a meet-
ing on the Donegal coast, where former combatants and survivors talked
about their own conceptions of justice during war. After this, I never
looked back.
As my early questions about the role of justice in war evolved into
graduate study and this book, I was incredibly fortunate to have the guid-
ance, love, and support from many extraordinary people. First, I wish to
thank my PhD advisor, Kathryn Sikkink. Kathryn provided unparalleled
mentorship to me in graduate school and served as an incredibly wise and
thoughtful guide as I navigated the professional world. Since completing
my PhD, there are countless times where I think back on advice and direc-
tion that Kathryn provided to me while I was a student, and for all of this,
I am incredibly grateful. I also wish to thank Ron Krebs, Lisa Hilbink,
Fionnuala Ní Aoláin, and David Samuels, who provided ample feedback,
generosity, and support throughout graduate school.
I am equally indebted to a wonderful group of graduate school friends.
I was fortunate to be a part of a dissertation writing group whose members
brought both sharp editing and a sense of humor to each meeting—many
v
vi ACKNOWLEDGMENTS
thanks to Ralitsa Donkova, Denis Kennedy, Verónica Michel, Darrah
McCracken, and Giovanni Mantilla. I am also grateful to the following
dear people for their friendship: Libby Sharrow, Caitlin Dwyer, Caleb
Goltz, David Forrest, Matt Hindman, Adriano Udani, Henriet Hendricks,
Kjersten Nelson, Eve Ringsmuth, Jonneke Koomen, Brooke Coe, Serena
Laws, Isaac Kamola, and to those in Belfast and beyond, Catherine Ross,
Elizabeth Super, Catherine O’Rourke, and Aisling Swaine.
I am grateful for the valuable feedback I received on chapters of the
book during panels at the Law and Society Association and the International
Studies Association conferences. Deep gratitude also goes to those who
read my work over the years: Bridget Marchesi, Nadya Nedelsky, Giovanni
Mantilla, the members of the Loyola University Maryland Junior Faculty
Symposium, Carsten Vala and Janine Holc. Many thanks to my colleague,
Doug Harris, for his kind and dedicated mentorship throughout the book
writing process. I am also indebted to my editor, Anca Pusca, Katelyn
Zingg, and the two anonymous reviewers for their guidance and thought-
ful feedback.
The writing of this book was made possible through several institu-
tional grants. I was fortunate to complete field work in Northern Ireland
with support from the Transitional Justice Institute Research Fellowship
(University of Ulster/University of Minnesota Law School) and I was
generously supported by the Oñati International Institute for the Sociology
of Law (Gipuzkoa, Spain) to complete my field work in the Basque region.
My field work in Sri Lanka was made possible through the University of
Minnesota’s Scholarly Travel Grants and the Doctoral Dissertation
Fellowship. Finally, I am very grateful for the generous research grants I
received at Loyola University Maryland. Two summer research grants
awarded by the Office of Research and Sponsored Programs enabled me
to collect data for the Colombian chapter and to pursue field work there
in 2015.
I am inspired and emboldened by a nurturing community of family and
friends who continually ground me and remind me of the existence of
hope in the midst of so much sorrow. Immeasurable gratitude to the
friends who have known me the longest and who I still turn to in times of
joy and despair: Carissa Kountantzis, Sarah Flanagan, and Shana Tabak.
Thank you to my Minnesota community (both then and now): Holly
Hinman, Erik Swenson, Kristen Murray, Bryan Kennedy, Benjamin
Roberts, Jessica Minutaglio, Leah Boudreaux, and Lisa Damon. I am also
grateful to loved ones in Baltimore for their friendship and support, many
ACKNOWLEDGMENT S vii
of whom have also shared their amazing children with our family: Heather
Heiman, Piotr Brzozowski, Stevie Oliver, Tony Oliver, Katie Robinson,
Josh Kermond, Whitney Cecil, Jacob Cecil, Meg Smith Aeschliman,
Adrien Aeschliman, Erica Wood, Matt Wood, Tim Clark, Lucia Perfetti
Clark, Joshua Hendrick, Leah Hendrick, Michelle Gawerc and Melissa
Girard. Finally, a tremendous thank you to my students at Loyola
University Maryland, who continually inspire and challenge me to reflect
on peace and justice issues in new ways every year.
This book is also a product of the deep and constant love I receive from
my family, who have shaped me in more ways than I can count. Thank you
to my parents, Kate and John Lynch, Tim, Piper, Delaney and Tabitha. I
am also grateful to Bill and Edna Bush, Heather Qualy, Bryan Qualy, Alma
Qualy-Godinez, Jen and Jack Schneider, Richard Bush and all my nieces
and nephews.
Lastly, this book is dedicated to William, Finnian, and Winona. There
is nothing sweeter than returning home to you. I love you.
c
ontents
1 I ntroduction 1
The Universe of Cases: Democracies at War 4
The Relationship Between Emergency Laws and Human Rights
Prosecutions 6
Historical Institutionalism and Emergency Law 10
Explaining Human Rights Prosecutions in Democracies at War 15
Data and Methodology 22
Implications of the Research 26
Overview of the Book 27
Bibliography 32
2 Human Rights Prosecutions and Institutional Continuity in
Sri Lanka 35
Historical Background to the Conflict in Sri Lanka 36
The Emergency Institution in Sri Lanka 41
Human Rights Prosecution Data 52
Prosecutions During the Kumaratunga Administration 55
The Final Years of the War: “Talking About Rights Is Irrelevant at
Best” 61
Future Accountability and the Emergency Institution 62
Bibliography 69
ix
x CONTENTS
3 Conversion, Layering, and Human Rights Prosecutions in
Northern Ireland 73
Historical Background to the Conflict in Northern Ireland 74
The Emergency Institution in Northern Ireland 78
Layering: Independent Oversight of Executive Emergency Powers
and Regional Human Rights Court Rulings 89
Human Rights Prosecution Data 101
The Impact of Conversion and Layering on Human Rights
Prosecutions 111
Bibliography 117
4 “Resorting to Authoritarian Habits”: Anti- terrorism Laws,
State Violence, and Human Rights Prosecutions in
Democratic Spain 121
Historical Background to the Basque Conflict 123
The Emergency Institution in Spain 129
Human Rights Prosecution Data 138
Setting the Stage: Legal Reforms and Human Rights Prosecutions 145
“We Are Still Looking for Bones” 156
Bibliography 162
5 The Constitutional Court, Military Jurisdiction, and
Human Rights Prosecutions in Colombia 167
Historical Background to the Conflict in Colombia 169
The Emergency Institution in Colombia 173
The Conditions Shaping Gradual Displacement of the Emergency
Institution 177
Human Rights Prosecution Data 191
Afterword: Transitional Justice Laws and the Peace Accord 197
Bibliography 204
6 Human Rights Prosecutions and Democracies at War in
Comparative Perspective 207
Legal Mobilization to Challenge the Emergency Institution 208
The Impact of Regional Human Rights Courts on Domestic
Prosecutions 209