Home > Publications and Reports > Campbell on Conflicted Democracies, Truth Commissions and the Law

Campbell on Conflicted Democracies, Truth Commissions and the Law

Colm Campbell, a professor at the Transitional Justice Institute in University of Ulster, has just published an article entitled “The Spectre Returns: Conflicted Democracies, Truth Commissions and the Law” in the Web Journal of Current Legal Issues. The whole article is available here and in my view it is necessary reading for anyone interested in how a democratic state confronts systematic (although, as Colm notes, not catastrophic) rights violations in its past. It is also an excellent piece for those who are interested in the ways in which Northern Ireland is moving towards some kind of mechanism for dealing with the aftermath of human rights violations by both the State and other actors and the role that litigation in the European Court of Human Rights plays in that process.

The argument presented is too nuanced to do justice to in a short post of this nature, but the more-or-less unique nature of the challenge faced in Northern Ireland is nicely summed up in this extract:

The specificity of the Northern Ireland experience created some unique features when it came to dealing with the legacy of conflict: The first was that the nature and scale of violations were respectively less severe and smaller than typically found in many contemporary conflicts. Secondly, the liberal democratic nature of the overall state meant that it was difficult for it to ‘see’ that there was a legacy of any serious systematic violations to be addressed, since the commission of such systematic violations should have been rendered impossible by the overall nature of the state. The third was that in Northern Ireland, there was no easy line to be drawn between the undemocratic ‘past’ and the new democratic ‘present’. Much of the pre-transition state machinery remained in place, with a capacity to exert significant intertial force.

The fourth was that a meta-conflict (a conflict about the conflict) continued: was it about self-determination, civil rights or religious sectarianism? Should the violence be considered criminality, terrorism or ‘armed conflict’? Such meta-conflicts are common, but in a liberal democratic state they have a distinctive edge. The various possible categorisations had important implications for judging the conflict’s legacy in international law: If mere criminality, all that appeared relevant was international human rights law (which bound only the state); if terrorism, permissible derogations from international human rights law became an issue. But if it were an ‘armed conflict’, international humanitarian law in relation to non-international armed conflicts also became applicable, providing a ‘laws of war’ yardstick for judging the actions both of [Non-State Entities] and the state. The difficulty here was that the liberal state found it particularly difficult to accept that what had taken place upon its territory was an ‘armed conflict,’ and that it was a party to it. (Internal citations omitted)

These distinctive characteristics are the context within which Campbell argues that the “application of transitional justice discourses to Northern Ireland cannot be a mechanistic process of corralling local ‘facts’ into pre-determined boxes”. Highly recommended!

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