Moira Lynch is Assistant Professor in the Department of Political Science at Loyola University Maryland, USA. She is the author of Human Rights Prosecutions in Democracies at War.

Read a free chapter, "Human Rights Prosecutions and Democracies at War in Comparative Perspective," until December 14.

What inspired you to tackle the topic of human rights prosecutions?

I first became aware of human rights prosecutions held during a war when I worked for the Glencree Centre for Peace and Reconciliation in Wicklow, Ireland, many years ago. I met a number of amazing individuals there who were deeply affected by the Northern Ireland conflict and were working to establish and normalize reconciliation in their communities. Through these conversations, I learned about a few criminal cases brought against members of the British armed forces by victims’ family members. As a result, I became very interested in the larger question of how survivors and family members access the justice system during a war, particularly when their claims concern a central actor like the state. Later, through my research, I learned that this is more common than I thought, and as the book explains, in cases of democracies experiencing armed conflict, there are several complicating factors for individuals pursuing judicial accountability.

You argue that emergency legislation in the context of conflict has a significant impact on human rights prosecutions: what are some of the main trends that you have observed?

Emergency and anti-terrorism laws are typically comprised of various rules and norms structuring the legal limits of state actors’ behavior during an internal crisis. They may include provisions for how terrorism is defined and adjudicated; they often include explicit or implicit rules that promote impunity for state violations; and they may include provisions that outline how and whether state actors are legally accountable for their actions while the emergency institution is in place. While emergency and anti-terrorism laws take various forms, a common thread is a logic of impunity whereby state actors are afforded protections from judicial scrutiny. The logic of impunity is marked by specific restrictions on the investigation of human rights abuses, such as immunity clauses, controls on the inquest process, expansive arrest and detention powers, or controls over the jurisdiction for human rights cases. Because emergency laws have these built-in restrictions, where there is little challenge or change to these laws, there tend to be fewer possibilities for justice. For example, during a crisis period, if emergency laws undergo alterations that weaken government arrest and detention powers, or amend provisions on prosecution, there are likely to be openings for justice. The four cases in the book demonstrate that the patterns of prosecutions reflect the extent to which change agents, including citizens, human rights NGOs and political actors were able to challenge, alter or eliminate provisions within these laws that fostered impunity.

How does the end of conflict impact human rights prosecutions?

In the countries I examine in the book, the end of the conflict has not produced many substantive changes compared to the climate during the conflict. One of the reasons for this is that emergency and anti-terrorism laws tend to persist after the conflict period. They become normalized over time or, as the book explains, long before the war is over, these laws often become permanent features of non-emergency laws like a penal code or laws on coroner inquests. Thus, the logic of impunity embedded in emergency laws often continues long after a war is over. Additionally, in cases where a peace accord is signed, such as in Northern Ireland and Colombia, because concessions to armed actors are at the forefront of negotiations, prosecutions are often compromised in favor of de facto, de jure or partial amnesties.