The paradox of transition in conflicted democracies

Human Rights Quarterly

Volumn 27, Issue 1, 2005, Pages 172-213

  Ní Aoláin, Fionnuala ^a   Campbell, Colm ^a  

^a UNIVERSITY OF ULSTER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

DEMOCRACY; POLITICAL CHANGE;

EID: 15544384457     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2005.0001     Document Type: Review

References (162)

1. See generally Ruti Teitel, Transitional Justice (2002);
2. Transitional Justice: How Emerging Democracies Reckon with Former Regimes (Neil J. Kritz ed., 1995);
3. Human Rights in Political Transitions: Gettysburg To Bosnia (Carla Hesse & Robert Post eds., 1999).
4. See Alexandra Barahona De Brito, Truth, Justice, Memory, and Democratization in the Southern Cone, in The Politics of Memory: Transitional Justice in Democratizing Societies 119 (Alexandra Barahona De Brito, Carmen Gonzaléz-Enriquez & Paloma Aguilar eds., 2001);
5. Rachel Sieder, War, Peace and Memory Politics in Central America, in The Politics of Memory: Transitional Justice in Democratizing Societies 161 (Alexander Barahona De Brito, Carmen Gonzaléz-Enriquez & Paloma Aguilar eds., 2001).
6. See Alex Boraine, A Country Unmasked (2000);
7. Brandon Hamber, Rights and Reasons: Challenges for Truth Recovery in South Africa and Northern Ireland, 26 Fordham Int'l L.J. 1074 (2003).
8. See Catherine Dupré, Importing The Law in Post-Communist Transitions: The Hungarian Constitutional Court and the Right To Human Dignity (2003).
9. As Huntington puts it in his classic work, "This book is about an important-perhaps the most important-global political development of the late twentieth century: the transition of some thirty countries from nondemocratic to democratic political systems." Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century xiii (1991).
10. See, e.g., Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (2003).
11. A classic example is the question posed by Michael Feher, "How should nascent democracies address the human rights violations that plagued their societies' recent past?" Michael Feher, Terms of Reconciliation, in Human Rights in Political Transitions: Gettysburg to Bosnia, supra note 1, at 325.
12. See, e.g., the discussion of the debate on this point between Lon Fuller and H.L.A. Hart in Teitel, supra note 1, at 12-14.
13. See Stanley Cohen, State Crimes of Previous Regimes: Knowledge, Accountability and the Policing of the Past, 20 Law & Soc. Inquiry 7 (1995).
14. Colm Campbell, Fionnuala Ní Aoláin & Colin Harvey, The Frontiers of Legal Analysis: Reframing the Transition in Northern Ireland, 66 Modern L. Rev. 317 (2003);
15. Colm Campbell & Fionnuala Ní Aoláin, Local Meets Global: Transitional Justice in Northern Ireland, 26 Fordham Int'l L.J. 871 (2003);
16. Bill Rolston, Assembling the Jigsaw: Truth, Justice and Transition in the North of Ireland, 44 Race & Class 87 (2002).
17. See Brendan O'Leary, The Nature of the Agreement, 22 Fordham Int'l L.J. 1628 (1999).
18. Classic conceptualizations include Thomas H. Marshall, Citizenship and Social Class and Other Essays (1950).
19. Other relevant texts in this context are Guillermo O'Donnell, Delegative Democracy, 5 J. Democracy 55 (1994) (delegative democracy);
20. Larry Diamond, Developing Democracy Towards Consolidation (1999) (electoral democracy);
21. Peter H. Merkl, The Federal Republic of Germany at Fifty; The End of a Century of Turmoil (1999) (defective democracy).
22. Relevant feminist analysis would include Iris Marion Young, Justice and the Politics of Difference (1990).
23. See W. B. Gallie, Essentially Contested Concepts, in Proceedings of the Aristotelian Society (London: The Aristotelian Society, 1955-56).
24. See the website for the High Commissioner on National Minorities, available at www.osce.org/hcnm/. The function of the High Commissioner is to identify and seek early resolution of ethnic tensions that might endanger peace, stability or friendly relations between OSCE participating states.
25. This would exclude violence below a certain threshold, a comparable standard for which can be taken from the minimum standards such as The Turku Abu Declaration of Minimum Humanitarian Standards of 1990, revised in 1994. Declaration of Minimum Humanitarian Standards, reprinted in Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on Its Forty-sixth Session, U.N. ESCOR, Comm. on Hum. Rts., 51st Sess., Provisional Agenda Item 19, at 4, U.N. Doc. E/CN.4/1995/116 (1995).
26. See, e.g., Lawless v. Ireland, 1 Eur. Ct. H.R. (ser. A) at 55 (1961).
27. See, e.g., International Commission of Jurists, States of Emergency: Their Impact on Human Rights (1983);
28. Study on the Implications for Human Rights of Recent Developments Concerning Situations Known as States of Siege or Emergency, Comm'n on Hum. Rts., 35th Sess., Agenda Item 10, U.N. Doc. E/CN.4/Sub.2/1982/15 (1982) (Questiaux Report).
29. See, e.g., Fionnuala Ní Aoláin, The Politics of Force, Conflict Management and State Violence In Northern Ireland (2000);
30. Campbell, Ní Aoláin & Harvey, The Frontiers of Legal Analysis, supra note 10.
31. Clearly El Salvador poses certain problems in terms of the depth of its substantive democracy, but the example is useful in terms of identifying applicable intensity of violence thresholds. See generally Report of the Secretary-General on the United Nations Observer Mission in El Salvador, U.N. Doc. S/1994/375, 31 Mar. 1994. We note that Common Article 3 is the lowest possible threshold of application for international humanitarian law. It is possible that states may also satisfy the requirements for Protocol II Additional to the Geneva Convention which tends to correspond to the classic two-sided civil war experience within a state.
32. See generally the Human Rights Watch website on Sri Lanka, available at www.hrw.org/ doc?t=asia&c=slanka.
33. See also L. Zegveld, The Accountability of Armed Opposition Groups in International Law 146 (Cambridge Univ. Press, 2002);
34. L. Moir, The Law of Internal Armed Conflict 84, 85, 120 (Cambridge Univ. Press, 2002). For details of ratifications of the 1977 Protocols see the ICRC website, available at www.icrc.org.
35. See Angry Brigade, 1967-84: Documents and Chronology (Jean Weir ed., 1985).
36. Colm Campbell, Wars on Terror and Vicarious Hegemons: The UK, International Law and the Northern Ireland Conflict, Int'l & Comp. L. Q. (forthcoming April 2005);
37. see also, Ní Aoláin, The Politics of Force, supra note 18, at 218-47 (charting high levels of violence and the existence of no go areas in the jurisdiction mapping on to territorial control as required for the application of international humanitarian law).
38. See B. Jorgensen, Emergency Powers in Canada and Northern Ireland (1985) (Ph.D. Thesis, University of Cambridge) (on file with University of Cambridge).
39. See also Sean M. Maloney, A Mere Rustle of Leaves: Canadian Strategy and the 1970 FLQ Crisis, 1 Canadian Military J. 71 (Summer 2000).
40. For an analysis pointing in the direction of including Italy in such a category (though not employing our terminology), see Tobias Jones, The Dark Heart of Italy: Travels Through Time and Space Across Italy (2004).
41. We also acknowledge that the term "conflicted" democracy may also have relevance to societies which have been termed by Fox and Nolte as "Intolerant Democracies." These democracies are those who may respond undemocratically when resisting challenges from antidemocratic actors who have triumphed within the democratic process. The challenge to these democracies has mostly been presented as "how intolerant a democracy may become towards such actors in order to preserve itself without relinquishing the claim of being democratic." See Gregory H. Fox & Georg Nolte, Intolerant Democracies, 36 Harvard Int'l L. J. 1 (1995).
42. However, as a number of key commentators have noted, the position of elites is critical to the nature and form of the transition experienced. See Huntington, supra note 5, at 114 (specifically his typology of power relations at the time the transition to democracy takes places).
43. See also Luc Huyse, Justice After Transition: On the Choices Successor Elites Make in Dealing with the Past, 20 Law & Soc. Inquiry 51 (1995).
44. The Security Council has invoked Chapter VII of the United Nations Charter to impose sanctions on Southern Rhodesia and South Africa. For a list of the sanctions imposed see Use of Sanctions Under Chapter VII of the U.N. Charter, available at www.un.org/ News/ossg/ sanction.htm. Reference here to the Sanctions regime on Zimbabwe (Smith government) and South Africa.
45. See also Sebastion Bohr, Sanctions by the United Nations Security Council and the European Community, 4 European J. Int'l L. 256 (1993). So for example we had the series of UN Resolutions on Apartheid, the Council of Europe's views on Greece prior to their departure from the Convention system.
46. See Katherine Hite & Leonardo Morlino, Problematizing the Links between Authoritarian Legacies and "Good" Democracy, in Authoritarian Legacies and Democracy in Latin America and Southern Europe 25, at 31 (Paola Cesarini & Katherine Hite eds., 2004).
47. Such pacts have been described as, "negotiated compromises in which contending forces agree to forego their capacity to harm each other by extending guarantees not to threaten the other's vital interests." Terry Lynn Karl, Dilemmas of Democratization in Latin America, 23 Comparative Politics 1, 11 (1990). Such pacts are not necessarily singular and in this sense map onto the distinction we make in this analysis of multiple transitions. See infra at subpart A.
48. See, e.g., Chile's military regime to a democratic one; Greek generals hand over to a civilian government; Argentina military change over to a civilian government; Eastern European communists bow to open electoral processes.
49. See generally Charles Townshend, Making the Peace: Public Order and Public Security in Modern Britain (1993) (Offers valuable insights in the periodic "crises of order" characteristic of modern Britain. He also argues that the traditional virtues of the unwritten constitution may turn into vices in the face of persistent disorder and political violence. Specifically noting that when the state commits acts that are illegitimate it undermines its own claims to legitimacy).
50. See Max Weber, the Protestant Ethic and the Spirit of Capitalism (Talcott Parson trans., 1930).
51. See Jurgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy 507 (1996).
52. See also Jürgen Habermas, Legitimation Crisis (1988).
53. As Huyse has remarked of transitional situations, "What a new democracy needs most, however, is legitimacy." See Huyse, supra note 26, at 51, 56.
54. For a critical view of the operation and costs to victims of such truth finding bodies see Brandon Hamber, Dealing with the Past: Rights and Reasons: Challenges for Truth Recovery in South Africa and Northern Ireland, 26 Fordham Int'l L.J. 1074 (2003);
55. Angela Hegarty, Dealing with the Past: The Government of Memory: Public Inquiries and the Limits of Justice in Northern Ireland, 26 Fordham Int'l L.J. 1148 (2003).
56. See Christine Bell, Peace Agreements and Human Rights (2000).
57. Fionnuala Ní Aoláin, The Fractured Soul of the Dayton Peace Agreement: A Legal Analysis, 19 Michigan J. Int'l L. 957 (1998).
58. A related development, which can be briefly mentioned here is an increasing focus on the presence or absence of socioeconomic transition in situations such as South Africa, and a critical examination of the relationship between this and democratic transition. See Hamber, supra note 36. For a more general analysis in the South African context of addressing (or not) "structural violence" involving denial of social and economic necessities see Johan Galtung, Peace by Peaceful Means: Peace and Conflict, Development and Civilization 197-99 (1996).
59. Evidently our emphasis here lies on the state's experience of transition and its acknowledgement of past human rights violations. This is not to underplay the reality and extent of human rights violations by third parties, specifically by nonstate actors, and the extent to which they have been responsible for a greater number of violations, as well as unhindered by any rules of engagement that would be felt more heavily by the democratic state. We also note that where nonstate actors are unwilling to engage in a fulsome accounting for past human rights violations, the state's interest in or willingness to "go it alone" is much more limited.
60. For an insightful analysis of this point in the Northern Ireland context see Colin J. Harvey, The New Beginning: Reconstructing Constitutional Law and Democracy in Northern Ireland, in Human Rights Equality and Democratic Renewal in Northern Ireland 9 (Colin J. Harvey ed., 2001).
61. See Richard L. Abel, Politics by Other Means: Law in the Struggle Against Apartheid 1980-1994 (1995);
62. David Dyzenhaus, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (1991).
63. See, e.g., Selmouni v. France, 1999 Eur. Ct. H.R. 66 (2000), 29 EHRR 403 (violation of art. 3, Torture).
64. Evidence of this assumption is gleaned through an examination of the application of the concept of administrative practice in the European human rights system. See, e.g., The Greek Case, 1969 Y.B. Eur. Conv. on H.R. 2 (Eur. Comm'n on H.R.); Donnelly & Others v. United Kingdom, Application no(s) 5577/5583/72, 5 April 1973 (Donnelly in particular illustrates the trend of the European Court's jurisprudence to limit the application of the administrative practice doctrine).
65. See Fionnuala Ní Aoláin, The Emergence of Diversity: Differences in Human Rights Jurisprudence, 19 Fordham Int'l L.J. 101 (1995) (examining different standards of scrutiny for democratic and nondemocratic states in emergency situations).
66. Mary O'Rawe, Transitional Policing Arrangements in Northern Ireland: The Can't and Won't of Change Dialectic, 26 Fordham Int'l L.J. 1015, 1073 (2003).
67. Constitution of the Republic of South Africa (1996) as adopted on 8 May 1996 and amended on 11 Oct. 1996 by the Constitutional Assembly, available atwww.polity.org.za/ html/govdocs/constitution/ saconst.html?rebookmark;
68. Dayton Peace Agreement signed in Paris on 13 Dec. 1995, available at wwwl.umn.edu/humanrts/icty/dayton/ daytonaccord.html.
69. See also General Framework Agreement for Peace in Bosnia and Herzegovina, U.N. Doc. S/1995/999 (1995), reprinted in 35 I.L.M. 75 (1996). Three models of law can be identified in these Constitutions/ Treaties: 1) purely repressive-classic authoritarianism; 2) law operates-but what it says and what it does are entirely at odds-paper perfect no meaning (Communist rule of law system); and 3) partly functional-ethnic democracy or formal but not substantive democracy examples include Israel (High Court), South Africa, early Supreme Court jurisprudence during the military regime in Argentina.
70. Teitel notes "Law is caught between the past and the future, between backward looking and forward looking, between retrospective and prospective, between the individual and the collective." Teitel, supra note 1, at 6.
71. See Kevin Boyle, Tom Hadden & Paddy Hillyard, Law and State: The Case of Northern Ireland (1975);
72. Kevin Boyle, Tom Hadden & Paddy Hillyard, Ten Years on in Northern Ireland: The Legal Control of Political Violence (1980);
73. Dermot Walsh, The Use and Abuse of Emergency Legislation in Northern Ireland (1983);
74. See Aolain, the Politics of Force: Conflict Management and State Violence in Northern Ireland, supra note 18.
75. See The Frontiers of Legal Analysis: Reframing the Transition in Northern Ireland, supra note 10.
76. Id. at 326-33.
77. This idea of an extended transitional process also figures in relevant political science literature. See, e.g., Thomas Carothers, The End of the Transition Paradigm, 13 J. Democracy 5 (2002). Carothers identifies a set sequence of stages which include opening, breakthrough, and consolidation. Id. at 7.
78. On the legal underpinning of the Northern Ireland constitution, see Harry Calvert, Constitutional Law in Northern Ireland: A Study of Regional Government (1968). McGarry argues that between 1921 and 1972, Northern Ireland approximated to an ethnic democracy, and notes that an "ethnic" democracy is not "properly democratic or capable of delivering justice and longterm stability."
79. See John McGarry, Democracy in Northern Ireland: Experiments in Self Rule from the Protestant Ascendancy to the Good Friday Agreement 8 Nations & Nationalism 451 (2002).
80. See generally both works by Boyle, K. Hadden, T. & Hillyard, P. supra note 49;
81. See also Colm Campbell, Emergency Law in Ireland, 1918-1925 (1994);
82. Tom Hadden, Kevin Boyle & Colm Campbell, Emergency Law in Northern Ireland: The Context, in Justice Under Fire (Anthony Jennings ed., 1st ed. 1988, 2d ed. 1990).
83. See Stephen Livingstone, Using Law to Change a Society: The Case of Northern Ireland, in Law, Society and Change 51 (Stephen Livingstone & John Morison eds., 1990) (for an analysis of the negative impact on social and legal progress brought about by the combination of these two approaches).
84. For an analysis of these mixed international perceptions see Adrian Guelke, International Legitimacy, Self Determination, and Northern Ireland, 11 Rev. Int'l Stud. 37 (1985).
85. In this context see the reports of the Independent Monitoring Commission established to monitor the Northern Ireland peace process. Independent Monitoring Commssion, First Report (2004), available at www.nio.gov.uk/imcreport.pdf;
86. Independent Monitoring Commission, Second Report (2004) (second report), available atwww.nio.gov.uk/2nd_imc_report. pdf.
87. See The Frontiers of Legal Analysis: Reframing the Transition in Northern Ireland, supra note 10, at 323.
88. Some might argue that while such sovereignty is theoretically open ended, the practical realization and implementation of this change would be formidable. It is also possible to speculate that, were transition to a unitary Irish state to occur, there might well be a disaffected unionist minority within the territory mirroring many of the experiences and political insecurities as previously expressed by the minority Catholic community in Northern Ireland. As we have set out more fully elsewhere, we take the view that the sovereignty provisions of the Agreement are transitional and quite unique in form and substance. Id
89. See, e.g., O'Leary, supra note 11.
90. This democratic deficit has been evidenced by the particular structure of governmental lawmaking in a devolved context, including the deficits of the standing committee structure, the small amount of parliamentary time given over to debate of Northern Ireland affairs, and the lack of input by locally elected political representatives. See Stephen Livingstone & John Morison, an Audit of Democracy in Northern Ireland (1995).
91. On the post ranco transition in general, see Paloma Aguilar, Justice, Politics and Memory in the Spanish Transition, in The Politics of Memory: Transitional Justice in Democratizing Societies, supra note 2, at 92.
92. For statistics of ongoing paramilitary violence, see the 3rd Report of the Independent Monitoring Commission, available atwww.nio.gov.uk/ 3rd_report_of_the_imc.pdf.
93. In relation to violence in the Basque region: during the ETA cease fire between 1998-1999 six people were killed. The figure rose dramatically in 2000 to twenty-three. Official Statistics can be found on the Spanish Ministry of the Interior website, available atwww.mir.es/oris/ infoeta/indexin.htm.
94. Current investigations are starting to reveal in full the extent of the collusive practices. On 17 April 2003, Sir John Stevens, Commissioner of the Metropolitan Police, published a brief summary of his third investigation into collusion in Northern Ireland. The summary catalogues systematic collusion between undercover forces and loyalist paramilitaries added to ongoing official attempts to derail the process of investigation, available atwww.met.police.uk/commissioner/ MP-Stevens-Enquiry-3.pdf. The investigation by former Canadian Supreme Court Judge Peter Cory into the controversial deaths of six persons including Patrick Finucane, Rosemary Nelson, Robert Hamill, and Billy Wright has also revealed serious concerns about the state's practices. On 1 April 2004, the Cory Reports were published. For a full text version of the reports see the Northern Ireland Office website, available atwww.nio.gov.uk/press/040401a.htm.
95. See Paddy Woodworth, Dirty War, Clean Hands: ETA, The GAL and Spanish Democracy (2001).
96. A similar point can be made about French behavior in Algeria. Though Algeria was viewed in French constitutional law as being part of France, the widespread torture and arbitrary killings that characterized the final years of French rule would not have been tolerated on the French "mainland." Although, as pointed out above, Israel seeks to fudge the status of the West Bank in particular, it nevertheless tolerates behavior by its security forces in that area that it would not find acceptable on the Israeli side of its pre-1967 borders.
97. See Good Friday Agreement, Apr. 10, 1998, Ir.-U.K., Strand 1, 1-25, available at www.nio.gov.uk/agreement.pdf.
98. Essentially the focus of these initiatives was on power sharing but within the constraints of majority rule.
99. See Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy supra note 33, at 507.
100. Radical political theorists such as Habermas argue that, in many societies increasingly differentiated along functional lines, "an ever greater number of persons acquire an ever larger number of rights of access to, and participation in, an ever greater number of subsystems." ld. at 504. Such extended sites of public participation lay the foundation for a radical restructuring of political participation. This is what is termed in traditional sociological thinking as political inclusion. Our analysis above suggests that this model may not be sufficient for post or emerging conflict societies.
101. See European Election: Northern Ireland Result, available at news.bbc.co.uk/1/hi/northern_ireland/3766315.stm.
102. This has been further augmented by the statement of both Irish and British governments in April 03 (Hillsborough Declaration) where they affirm in paragraph 2: The overwhelming majority of people in Northern Ireland want to live in a society which is normal, peaceful and secure; is inclusive of all its members, irrespective of their religious, political or cultural affiliations; demonstrates equality of opportunity and full respect; allows their voices to be heard and their concerns to be fairly and reasonably addressed through a democratic process that is fair, inclusive and durable; has a justice and policing system that enjoys widespread confidence and support and has the capacity to address criminality in all its forms, with resort to military intervention only in exceptional circumstances; and provides an overall sense of safety and confidence which contributes to an environment in which the opportunities for economic and social well-being are maximized.
103. See Maria Los, Lustration and Truth Claims: Unfinished Revolutions in Central Europe, 20 Law & Soc. Inquiry 117 (1995);
104. Huyse, L. supra note 26, at 51;
105. Arthur L. Stinchcombe, Lustration as a Problem of the Social Basis of Constitutionalism, 20 Law & Soc. Inquiry 245 (1995). It is also worth noting here that the operation of lustration laws has not been as extensive or far reaching as initial legislation might have suggested. The reason, it seems, is that in many post communist societies the level of participation across the population in the prior regime makes it impossible to mark out those with entirely "clean hands."
106. See generally, Teitel, R. supra note 1.
107. G. Simpson & P. van Zyl, Witch-hunt or Whitewash? Problems of Justice in Transition in South Africa Occasional paper, Johannesburg: Centre for the Study of Violence and Reconciliation (1997) (on file with author);
108. Hamber, B. supra note 35.
109. See Violence and Civil Disturbances in Northern Ireland in 1969: Report of Tribunal of Inquiry, 1972, Cmnd. 566, available at cain.ulst.ac.uk/hmso/scarman.htm;
110. Report of the Advisory Committee on Police in Nnorthern Ireland, 1969, Cmnd. 535, available at cain.ulst.ac.uk/ hmso/hunt.htm.
111. For more information see A Chronology of the Conflict, available at cain.ulst.ac.uk/ othelem/chron/ch70.htm.
112. See Colm Campbell & Ita Connolly, A Model for the "War Against Terrorism"?: Military Intervention in Northern Ireland and the 1970 Falls Curfew, 30 J.L. & Soc'y 341 (2003).
113. Report of the Tribunal Appointed to Inquire into the Events on Sunday, 30th January 1972, 1972, H.L. 101, H.C. 220, available at cain.ulst.ac.uk/hmso/widgery.htm.
114. For an account of international initiatives in Northern Ireland, including action at the UN Security Council level, see Martin O'Brien, Northern Ireland at the United Nations, 1960-1996 (1996) (unpublished LLM dissertation, Queen's University Belfast) (on file with author).
115. On the latter point, see also] R. Harvey, The Right of the People of the Whole of Ireland to Self Determination, Unity, Sovereignty and Independence, 11 N.Y.U.J. Int'l L. & Comp. L. 167 (1990).
116. Ní Aoláin, supra note 44, at 114-26;
117. Oren Gross & Fionnuala Ní Aoláin, From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights, 23 Hum. Rts. Q. 625, 644-47 (2001).
118. See Kieran McEvoy & Brian Gormally, "Seeing" is Believing: Positivist Terrorology, Peacemaking Criminology, and the Northern Ireland Peace Process, 8 Critical Criminology 9 (1997).
119. Thus, early in the peace process, the then Secretary of State for Northern Ireland (Sir Patrick Mayhew) indicated that significant reform of the RUC would not be part of the peace dividend. M. Brogden, An Agenda for Post-Troubles Policing in Northern Ireland-The South African Precedent, 17 Liverpool L. Rev. 4 (1995).
120. The Report of the Independent Commission on Policing for Northern Ireland, A New Beginning: Policing in Northern Ireland (1999), available at www.belfast.org.uk/report/fullreport.pdf;
121. Criminal Justice System Review Group, Review of the Criminal Justice System in Northern Ireland: A Guide (2000), available at cain.ulst.ac.uk/issues/law/cjr/report30300.htm.
122. Bell, C. supra note 36.
123. The Report of the Independent Commission on Policing for Northern Ireland, supra note 84.
124. See Good Friday Agreement, Strand 3, Policing and Justice, 5, supra note 68.
125. Id. at Annex B, Prisoners;
126. see also Kieran McEvoy, Paramilitary Imprisonment in Northern Ireland-Resistance, Management, and Release (2001).
127. Of notable concern here are the provisions of the Hillsborough Declaration, supra note 73, 25 & Annex 3, which seeks to contain the Bill of Rights to "conflict extras" and seems to clamp down on the wider array of rights protection proposed by the Bill of Rights consultation process as published by the Northern Ireland Human Rights Commission. See generally Northern Ireland Human Rights Commission, Bill of Rights Working Group, available at www.nihrc.org.
128. See Stephen Livingstone, And Justice for All? The Judiciary and the Legal Profession in Transition, in Human Rights, Equality and Democratic Renewal in Northern Ireland (Harvery ed., 2001).
129. See Good Friday Agreement, Strand 3, Annex B, Review of the Criminal Justice System, supra note 68. The contours of a similar dynamic can be identified in relation to the changes to the policing system in Northern Ireland. In the context of policing reform, a similar dynamic has been identified. See O'Rawe, supra note 45, at 1015-73.
130. See Committee on the Administration of Justice, Annual Report 2001-2002 12-14 (2002), available at www.caj.org.uk/reports/ Annual%20Report%202001-2002.pdf.
131. See generally the Implementation Plan, available at www.nio.gov.uk/pdf/impplans2.pdf.
132. See the Criminal Justice website of the Northern Ireland Office, available at www.nio. gov.uk/criminal-justice.
133. Bell, C. supra note 36, at 32.
134. Justice (Northern Ireland) Act 2002, Commencement No. 1 (2002) (N.Ir.Stat.), available at www.hmso.gov.uk/acts/acts2002/ 20020026.htm.
135. The former UN Sub-commission on the Prevention of Discrimination and the Protection of Minorities began consideration of the situation in Northern Ireland under the 1503 procedure in 1972, apparently focusing on the treatment of internees following the introduction of internment in August 1971. The confidentially surrounding the procedure means that limited information is available; indeed it was only in 1984 that limited details of the 1972 examination got into the public domain. See Howard Tolley, Jr., The Concealed Crack in the Citadel: The United Nations Commission on Human Rights' Response to Confidential Communications, 6 Hum. Rts. Q. 420 (1984).
136. See generally, Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) at 79 (1978);
137. Brogan v. United Kingdom 145B Eur. Ct. H.R. (ser. A) at 16 (1987);
138. Brannigan & McBride v. United Kingdom, 258 Eur. Ct. H.R. (ser. A) at 31 (1992);
139. McCann and Others v. United Kingdom, 324 Eur. Ct. H.R. 97 (1995).
140. Aisling Reidy, Frano̧ise Hampson & Kevin Boyle, Gross Violations of Human Rights: Invoking the European Convention on Human Rights in the Case of Turkey, 15 Netherlands Q. Hum. Rts. 161 (1997) (analysis of the same problem in relation to Turkey).
141. Lawyers Committee for Human Rights, Human Rights and Legal Defense in Northern Ireland: The Intimidation of Defense Lawyers, the Murder of Patrick Finucane (1993);
142. Lawyers Committee For Human Rights, at the Crossroads: Human Rights and the Northern Ireland Peace Process (1996);
143. Lawyers Committee for Human Rights, Beyond Collusion: The UK Security Forces and The Murder of Patrick Finucane (2003);
144. Human Rights Watch, Human Rights in Northern Ireland (1991).
145. See Christine Bell, Dealing with the Past in Northern Ireland, 26 Fordham Int'l L.J. 1095, 1095 (2003).
146. Id. at 1099-100 (referencing and outlining these "discrete measures:.
147. See Angela Hegarty, The Government of Memory: Public inquiries and the Limits of Justice in Northern Ireland, 26 Fordham Int'l L.J. 1148 (2003).
148. See Local Meets Global: Transitional Justice in Northern Ireland, supra note 10, at 1217-20;
149. The Frontiers of Legal Analysis: Reframing the Transition in Northern Ireland, supra note 10, at 339-42.
150. On the accession of Portugal to the European Economic Community, see Portugal and the European Community, available at aei.pitt.edu/ archive/00000962/01/enlargement_portugal_23_79.pdf.
151. See António Costa Pinto, Settling Accounts with the Past in a Troubled Transition to Democracy: The Portuguese Case, in The Politics of Memory: Transitional Justice in Democratizing Societies, supra note 2, at 82-83.
152. See An Association goes to the UN so ... that Spain investigates to the Disappear in the Civil War [sic], available at www.elmundo.es/ elmundo/2002/08/21/espana/1029891185. htm], 21 Aug. 2002.
153. Giles Tremlett, Franco's Secrets Haunt Spain, The Guardian, 21 Oct. 2002, available at www.guardian.co.uk/international/story/ 0,,815843,00.html. The Working Group has examined two cases, concerning Spanish disappearances;
154. see the relevant information regarding those cases, available at www.nodo50.org/haydeesanta maria/memoria_historica/victoria_ginzberg.
155. See Aguilar, P. supra note 62.
156. The investigation, while not officially sponsored, was nevertheless granted some access to official archives. ld. at 114.
157. Giles Tremlett, Spain Poised to Seek the Graves of Franco's Disappeared, The Guardian, 23 Aug. 2002, available at ww.guardian.co.uk/international/story/0,,779206,00.html;
158. Elaine Sciolino & Emma Daly, Spaniards at Last Confront the Ghost of Franco, N.Y. Times, 11 Nov. 2002, at A3;
159. The Authors of "The Graves of Franco" ask the Government Support for the Exhumations [sic], available at www.elmundo.es/elmundo/ 2003/07/18/ sociedad/1058495998.html.
160. Nor it seems, will any more light be shed on the activities of GAL through criminal prosecutions in Spain. See Paddy Woodworth, GAL Verdict Concludes Investigation into Spanish Dirty War Crimes, Irish Times, 27 June 2003, at 15.
161. See Stanley Cohen, Justice in Transition? Prospects for a Palestinian-Israeli Truth Commission, Middle East Report, May-Aug. 1995, at 2-5.
162. David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and The Occupied Territories (2002).