![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
Abstract
The relationship between emergency legislation and government accountability for human rights violations has captured the interest of scholars and political officials since the War on Terror commenced. However, the use of emergency laws by democracies during a crisis is not novel. Through comparative analysis of the conflicts in Sri Lanka and Northern Ireland, this article illustrates that governments have used these laws as a means to avoid judicial accountability for decades. Moving beyond existing research that tends to offer normative models for achieving government accountability in the midst of crisis, this article provides findings on the precise conditions that constrain or enable accountability in the presence of restrictive laws. Drawing on historical institutionalism, the article argues that key features of the political context, including veto power, the degree of legal regulation, and opportunities for judicial challenges, shape the extent to which emergency legislation acts as a constraint on government accountability.
Notes
1. I determined the record of prosecutions in each case by dividing the number of civilian deaths investigated and prosecuted within the criminal justice system by the estimated total number of civilians killed by state forces in the conflict. The prosecution data were gathered through analysis of US State Department country reports on human rights between 1976 and 2010. For more information about the comparative prosecution data, see Lynch (2012).
2. Determining which party was responsible for the civilian deaths at the end of the Sri Lankan conflict in 2009 has been challenging given the limited access of nongovernmental organizations (NGOs) and media to the war zone. In addition, the number and nature of civilian deaths continues to be disputed despite UN investigations into the matter (see United Nation 2011). For these reasons, I exclude the civilian deaths from the final months of the war in my prosecution count.
3. States are not permitted to derogate from Article 6 (right to life), Article 7 (prohibition of torture or cruel, inhuman or degrading punishment), Article 8, Paragraphs 1 and 2 (prohibition of slavery), Article 11 (prohibition of imprisonment because of inability to fulfill a contractual obligation), Article 15 (the principle of legality in the field of criminal law), Article 16 (the recognition of everyone as a person before the law), and Article 18 (freedom of thought, conscience and religion) (ICCPR 1966: Art. 4, para. 2).
4. International Humanitarian Law (IHL) includes two main legal instruments that regulate internal armed conflicts: Common Article 3 to the 1949 Geneva Conventions and the 1977 Additional Protocol II to the Geneva Conventions. For more information about IHL, see Kalshoven and Zegveld (Citation2001).
5. See also Fitzpatrick (Citation1994).
6. In his discussion on the state of exception, Agamben (Citation2005: 41–51) refers to a time period where law is suspended as the iustitium.
7. Fitzpatrick (Citation1994) largely focuses on international monitoring bodies and their inherent weaknesses. Given their inefficacy, she recommends that international standards should be incorporated into domestic law.
8. For further information on the chronology of emergency laws, please contact the author.
9. The PTA is not a formal emergency regulation but its powers are similar to emergency laws in several ways.
10. See ICCPR (1966) Art. 2, para 3.
11. Section 23 stipulates, “No prosecution or other criminal proceeding against any person for any act purporting to be done under any provision of this Part or of any Order made thereunder shall be instituted in any court except by, or with the written sanction of, the Attorney-General; and no such suit, prosecution or other proceeding, civil or criminal, shall lie against any person for any act in good faith done in pursuance or supposed pursuance of any such provision” (PSO 1947: para. 1).
12. The UN Manual on Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions codifies such investigative procedures. See also the purpose and creation of the “Minnesota Protocol” in Clark (Citation2001).
13. See the Code of Criminal Procedure Act No. 15 (Citation1979).
14. See the Constitution of the Democratic Socialist Republic of Sri Lanka (1978), Art. 155 (2 and 3).
15. See Public Security Ordinance No. 25, Sec. 3, 8 (1947).
16. See Channa Peiris v. Attorney General (1994), Joseph Perera v. Attorney General (1992), and Sunil Rodrigo v. de Silva (1997) (Welikala Citation2008; Pinto-Jayawardena Citation2010).
17. See the Final Report of the Commission of Inquiry into Involuntary Removal and Disappearance of Certain Persons (All Island), Sessional Paper No. 1 (2001: 85).
18. For further information about the chronology of emergency laws, see Donohue (Citation2001).
19. See Civil Authorities (Special Powers) Act (Citation1922), Section 10(a)(b)(c).
20. See Coroner's Act (Northern Ireland) (Public Records Office Northern Ireland [1959]) and the Coroner's (Practice and Procedures) Rules (Public Records Office Northern Ireland [1963]).
21. In the early years of the European Court of Human Rights, all the applications were lodged with the European Commission with the potential to go on to the European Court. When the caseload facing the Court grew substantially in the 1990s, Protocol 11 was passed in 1998 to eliminate the Commission while retaining the European Court of Human Rights as the sole judicial body.
22. See also Fox, Campbell, and Hartley v. United Kingdom (1995) and Murray (John) v. United Kingdom (1996).
23. The reforms in the Northern Ireland case should not be overstated. As the prosecution data indicate in the first section of the article, holding state actors to account for human rights violations was difficult throughout the conflict. Given the disparity in levels of violence between the two cases, we might have expected Northern Ireland to have far better accountability outcomes. Yet, the prosecution data indicate this is not the case; accountability was a challenge in both cases. This analysis illuminates the importance of investigating the complex conditions surrounding efforts to hold governments accountable.
24. See Yoav Mehozay's (2012) instructive piece on the entrenchment of emergency law in Israel and its use by government officials for political ends.