10 Salinas de Frias Chap 10: BEYOND RADICALIZATION— TOWARDS AN INTEGRATED ANTI-VIOLENCE RULE OF LAW STRATEGY * | Apartheid | Social Movements

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  BEYOND RADICALIZATION— TOWARDS AN INTEGRATED ANTI-VIOLENCE RULE OF LAW STRATEGY *
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  255  10 BEYOND RADICALIZAION󲀔 OWARDS  AN INEGRAED ANI󰀭VIOLENCE RULE OF LAW SRAEGY *   Colm Campbell 1. Introduction Bombs in crowded cafes blind. Te blast radius delineates immediate victimhood, but such attacks can also blind the state to the consequences of its ‘anti-terrorist’ actions. Globally, patterns are emerging that profoundly challenge prevailing orthodoxies: legal regimes employed to ‘combat terrorism’ can apparently promote the enemy they claim to destroy; and ‘taking the gloves off’ seems rarely to work for the law based state (hands just get dirty). Clearly, there are problems at the technocratic (planning and execution) level. But this chapter argues that problems are more deeply rooted: that dominant ‘anti-terrorist’ discourses are constructed in ways that conceal unpalatable consequences; that these discourses [mis-]shape policy; and that responsibility for overall shortcomings lies at least as much at these levels as with operatives at the sharp end. Te chapter begins with a critique of some in󿬂uential anti-terrorist legal discourses. It then sets out an alternative socio-legal model of law’s role in situations of insur-gency and terrorism in the state ideologically committed to the ‘rule of law’ (the ‘ rechtsstaat   ’). Tis explores not only the state’s engagement with law in its attempt to deal with its enemies (a ‘top-down’ perspective), but also law’s operation within the civilian population from whom violent actors spring (‘bottom-up’). Tis model is then employed to analyse four con󿬂ict sites separated widely by geography and types of legal system. Comparisons facilitate identi󿬁cation of cross-jurisdictional *   Te research assistance of Ita Connolly (Ulster University) and Niklas Beckenkamp is gratefully acknowledged. 10 Salinas de Frias_Chap 10 indd 255 10 Salinas de Frias_Chap 10.indd 255 9/13/2011 1:49:22 PM 9/13/2011 1:49:22 PM OUP UNCORRECTED PROOF ‑ - FIRST PROOF, 13/09/2011, CENVEO  Colm Campbell  256patterns; using these as reference points, elements of an alternative anti-violence, rule of law strategy are suggested. 2. Te Poverty of Dominant Discourses Rather than attempt to cover the entire span of contemporary ‘anti-terrorist’ litera-ture, this section focuses on four salient features: its dominant modelling; its approach to limitation and ‘balance’; its elevation of hypotheticals over real-world data; and its neglect of law’s impact on subaltern groups. Dominant discourses, particularly in law, rely heavily on variants of the ‘crisis [of terrorism] — response [of the state]’ models. Te number of scholarly articles that include ‘terrorism’ and ‘response’ in their title   alone since 9/11 (700), exceeds that in the world’s previous published output. Some 326,000 articles include both terms in their discussions. 1  In the most basic legal version, terrorism represents a crisis to which the state must respond, generally by using law to limit rights. More developed versions along ‘terro-rology lines’ add provisos that the state should not respond counter-productively. 2  But even here the state’s possible contribution to con󿬂ict is obscured — it is a reactor not an actor; it responds to, but does not create crises. It is only in the political sci-ence and sociological literature examined below that models emerge which transcend ‘crisis-response’. Much of the legal discourse sees the need for rights limitation as self-evident: the only questions being ‘by how much?’, and ‘what balance is to be struck?’. Rarely is it explained how the (many) limitations will contribute to the response’s effective-ness (this would involve engagement with real life data). Once the need for limitation is accepted, the secondary question of balance is addressed using a linear seesaw metaphor: the right in question is represented by a plank (with seats at each end), and the extent to which the right is exercisable is shown by the distance between the ends of the plank and the fulcrum (Figure 1 ). In the ordinary case the rights of society and of suspected criminals are evenly balanced. But the more evil (and heavy) the terrorist, the greater the seesaw needs to be weighted in favour of society, potentially leading to the virtual extinction of the right in question.  As regards ‘proof’ of the need for particular powers, two broad strategies can be identi󿬁ed. Te 󿬁rst, employed most [in]famously by Dershowitz, 3  avoids the need for empirical data by relying upon hypotheticals — typically the ‘ticking bomb’ scenario: a captured uncooperative terrorist is known to have planted a bomb; 1 Google Scholar < http://scholar.google.co.uk/ > accessed 29 March 2011. 2 P Wilkinson, errorism versus Democracy: Te Liberal State Response   (2nd edn Routledge, London 2006). 3  AM Dershowitz, Why errorism Works: Understanding the Treat, Responding to the Challenge   (Yale University Press, New Haven, C 2002). 10 Salinas de Frias_Chap 10 indd 256 10 Salinas de Frias_Chap 10.indd 256 9/13/2011 1:49:22 PM 9/13/2011 1:49:22 PM OUP UNCORRECTED PROOF ‑ - FIRST PROOF, 13/09/2011, CENVEO  10. Beyond Radicalization: owards an Integrated Strategy  257unless he is tortured to locate it, many people will die. Dershowitz recommends a system of judicial ‘torture warrants’ authorizing the insertion of needles under the suspect’s nails. Te pain will cause him to disclose the location; lives will be saved; and the tactic is therefore effective. orture tends to happen anyway, and should be institutionalized and thereby delimited. Quite apart from moral objections, Dershowitz’s sleight of hand is to shift from torture being effective with one ‘ticking bomb’ terrorist to being an effective counter-terrorist tactic in general. Empirical evidence (discussed below) suggests that torturing one can radicalize one hundred. Some may become new bombers, multi-plying the problem several-fold. Furthermore, institutionalizing controlled torture sends messages to security personnel that torture is acceptable, risking downward spirals of ‘informal’ torture, extremist radicalization, and violence. It is not that Dershowitz addresses and dismisses the ‘messaging’ issue — he simply ignores it. Te view of law he employs is highly normative, with law operating in a ‘top down’ manner. Few of the main contributors take the trouble to assemble srcinal empirical mate-rial on terrorism, or terrorists    4  — indeed an antipathy towards primary studies can be evident. For instance Wilkinson’s errorism versus Democracy: Te Liberal State Response    5  relies entirely on secondary or tertiary data. Tis use is highly selective, seemingly limited to data supporting the author’s thesis. Despite drawing frequently on Northern Ireland, the work entirely ignores all the key empirical studies on special courts and emergency powers in the region. 6  Wilkinson’s approach helps to 4 See DW Brannan, PF Esler, and N Anders Strindberg, ‘alking to “errorists”: owards an Independent Analytical Framework for the Study of Violent Substate Activism’ (2001) 24 Studies in Con󿬂ict and errorism 3. 5  Wilkinson (n 2). 6 Probably the most important reference points were a series of internationally celebrated primary empirical studies by Professor om Hadden and associated contributors, for example  Hadden, K Boyle, and P Hillyard, en Years on in Northern Ireland   (Te Cobden rust, London 1980). Ordinaryoffender1 1 1 2 TerroristsuspectSocietySociety  Figure 1 Balance as a Seesaw 10 Salinas de Frias_Chap 10 indd 257 10 Salinas de Frias_Chap 10.indd 257 9/13/2011 1:49:22 PM 9/13/2011 1:49:22 PM OUP UNCORRECTED PROOF ‑ - FIRST PROOF, 13/09/2011, CENVEO  Colm Campbell  258explain how, in his earlier errorism and the Liberal State   , he could be so emphatic in his approval of internment without trial in Northern Ireland. 7  It is now clear that internment’s introduction was a marked failure (in the book’s second edition the claim has disappeared). 8  In much of the literature the result tends to be portrayals of irrational, mindless, sociopathic, or evil individuals, whose capacity for indiscriminate violence is limited only by availability of weaponry. A number of consequences 󿬂ow: since the threat is potentially unlimited, particularly harsh measures are required. As terrorists are mindless, their entrepreneurship, and speci󿬁cally their capacity creatively to exploit the state’s mistakes, is ignored. And opportunities for peace may be overlooked by analyses of insurgents’ goals informed by ‘mindlessness’ paradigms. Te dynamic appears to be that trusted individuals are facilitated to acquaint themselves with offi cial security thinking. Insights thereby gained are fed into their analyses, which are then incorporated in policy elaboration, producing loops of continual reinforcement. 3. Building a Law and Social Movement Model ‘op-down’ views of law can help solve some legal puzzles, but have a number of shortcomings in current contexts: (1) they neglect a key insight of the ‘law and society’ movement — law’s ‘Janus-faced’ quality — simultaneously a tool of repres- sion and source of challenger empowerment; 9  (2) they contribute little to solving the conundrum of why ‘anti-terrorist’ law can be counter-productive; (3) their focus on positive norms tends to underplay the signi󿬁cance of situations where security forces act outside their powers. Te alternative ‘bottom-up’ model employed here looks at law less as a multiplicity of norms than primarily as ‘particular traditions of knowledge and communicative practice’ 10  in which messaging around law is a major concern (messaging occurs when norms are complied with and when they are not). Deracinated views of ter-rorists are rejected as inaccurate; 11  rather the model analyses the state’s violent challengers through the lens of social movement theory. Such groups have agency, and the analysis uses this capacity to provide an account of security law’s potentially counter-productive effects. 7 See P Wilkinson, errorism and the Liberal State   (1st edn Macmillan, Oxford 1977) 155ff. 8 P Wilkinson, errorism and the Liberal State   (2nd edn Macmillan, Oxford 1986). 9 See RL Abel, Politics by other Means: Law in the Struggle Against Apartheid, 1980–1994   (Routledge, London 1995); A Hunt, ‘Rights and Social Movements: Counter-Hegemonic Strategies’ (1990) 17 Journal of Law and Society 309. 10 MW McCann (ed), Law and Social Movements   (Ashgate, Aldershot 2006) xii. 11 See in general M Crenshaw, ‘Te Psychology of errorism: An Agenda for the 21st Century’ (2000) 21 Political Psychology 405; and M Crenshaw, errorism in Context Causes, Processes and Consequences   (Routledge, London 2010). 10 Salinas de Frias_Chap 10 indd 258 10 Salinas de Frias_Chap 10.indd 258 9/13/2011 1:49:22 PM 9/13/2011 1:49:22 PM OUP UNCORRECTED PROOF ‑ - FIRST PROOF, 13/09/2011, CENVEO
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