Human Rights as War by Other Means. Jennifer Curtis
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and seek other means to pursue political and cultural change (McAuley et al. 2010; Shirlow and McEvoy 2008). Meanwhile, the influence of rights discourse is evident in the GFA’s commitment to “parity of esteem … for the identity, ethos, and aspirations of both communities” (Agreement Reached 1998: 4; my emphasis). Yet as the previous section makes clear, human rights discourse also opens up new fronts of conflict. To a large extent, the peace process has been an institutionally focused affair, while social divisions and sectarianism continue under its “semi-benign apartheid” (McAuley et al. 2010: 36). Rather than transforming divisions, human rights discourse has helped reproduce them.
This situation has been strongly critiqued in scholarship. Arguing from the conventional premises of liberal individualism, Wilson (2010) asserts that the GFA’s model makes violence more, not less, likely. Finlay (2010) draws from a Foucauldian critique of liberal individualism to argue that the agreement reproduces ethnopolitics through bureaucratic management. These critics emphasize the compulsory dimension of the GFA’s two-communities model (nationalist, unionist, with the occasional nonnormative “other”) and its foreclosure of other forms of political collectivity. Finlay (2008) is scathing about the GFA’s potential for reconciling politics or people: “All there is, is the constitutional right to hold simultaneously both a British and an Irish passport’ (288). Some scholars defend the model by suggesting that group rights simply recognize social reality (e.g., Harvey 2003). Meanwhile, Whitaker (2010) asserts that a “communalization of rights” has not occurred and that processes like the Bill of Rights consultation created spaces for alternative political debates (26). Others predict future benefits, arguing that consociationalism will allow stability to develop over time, embed equality in law, policy, and everyday life, and ultimately increase choice regarding identity and politics rather than compulsion (e.g., McGarry and O’Leary 2004).
The practical institutionalization of collective rights has led to public and academic debates much farther afield than Northern Ireland, of course. The emergence of liberal multiculturalism in the 1990s is a well-known source of collective rights debates. Advocates such as Taylor (1994) and Kymlicka (2001) call for recognizing group rights because group membership is a primary producer of political subjectivity. In this analysis, recognizing groups as bearers of rights is a move toward a more just society, an institutional protection against pervasive structural injustices rooted in difference. Allowing perceived members of a group the option to self-identify in other ways, a “right of exit,” guards against communal compulsion (Kymlicka 2001). This position has been criticized from many angles.
One critique suggests that defining the subjects of rights collectively is a challenge to a fundamental conception of human rights as individual rights (see Donnelly 2003). A different response is that situating community as a locus of political rights reduces the complexity of political identification to one category (e.g., Appiah 1994). Anthropological scholarship suggests that collective rights models fail to recognize that rights claims produce political subjectivity as much as groups produce rights claims (see essays in Cowan et al. 2001; Wilson and Mitchell 2003; Wilson 1997b). Cowan (2006) points out that liberal theorizing not only ignores how mobilization is productive of groups but that rights of exit are grounded in inadequate awareness of the compulsion and social processes that constitute “choice” in everyday life. These studies underscore warnings that the GFA model may reproduce ethnopolitics over time.
This scholarship sheds light on both the reasoning behind the GFA and the contradictions that have emerged as it was implemented. The Holy Cross case that precipitated the HRC’s first public crisis was an example of broader communal conflict translated into the language of the agreement. A street-level confrontation, much like those during the conflict, became a globally publicized conflict of rights. In June 2001, loyalists from the Glenbryn estate began picketing Holy Cross Primary School in nationalist Ardoyne, north Belfast. The school entrance was located just on the Glenbryn side of a famous “peace line.” Police in riot gear were deployed to protect small girls as they walked to school past lines of enraged adults. The dispute continued for four months, with violent conflicts during the summer break and a resumption of the pickets when the new term began in the autumn. Riots spread throughout north Belfast that autumn and winter, along with attacks on children travelling to other schools. Murals in the area compared the girls’ plight to desegregation efforts in the United States in the 1950s.
Reasons given for the protests varied. Protagonists in the conflict framed the dispute in terms of collective rights and alleged that these rights were being differentially allocated by the state. Families of the girls argued that the protests subjected them to inhuman and degrading treatment—violations of their human rights. Furthermore, they said, police did not use force to stop the protests because the girls were Catholic, but they would have ended any such protest by nationalists. Therefore, police acted in a discriminatory fashion. Loyalists claimed that free assembly was an unconditional right, irrespective of sectarian content or whether violence might be a consequence. They also argued that the dispute was entangled with the disputed Drumcree parade. Since Orangemen in Portadown were no longer allowed to walk on a stretch of road through a nationalist estate, they argued the girls’ right to walk to school near their estate was also conditional.
Parents’ claims became the basis for an unsuccessful challenge of police conduct under the Police (Northern Ireland) Act 2000, and under Articles 3, 8, 13, and 14 of the European Convention. As noted earlier, the Human Rights Commission supported the court case, but its chief commissioner disagreed with that decision. His dissent became public when a letter he sent to the chief constable was published in legal proceedings. The commission’s conduct in the dispute has since been called “a disaster” because the HRC and individual commissioners took contradictory public positions and became increasingly divided—the HRC became part of the conflict rather than public advocates for either the protection of vulnerable people or fundamental rights (Livingstone and Murray 2004: 156). The incident also compromised public perceptions of its independence from police and other arms of the state. The court case failed before a high court, the Court of Appeal, and the House of Lords, and finally was ruled inadmissible by the European Court.30 Its long legal journey ended in 2010, when the European Court of Human Rights declared that the case was “manifestly ill-founded” and that, horrific as the protests were, there was no evidence of European convention breach.
The GFA framers could have anticipated the difficulties such a body would face. As former HRC chair Brice Dickson (2010) writes, “The reality is that human rights, like so many concepts, had by 1981 become a propaganda tool in the war of words between all sides to the conflict in Northern Ireland” (22). Nevertheless, from this inauspicious beginning, the HRC soldiered on. Since the Holy Cross debacle, the HRC has made some unpopular decisions, like initiating a judicial review of the local ban on gay adoption; the challenge to the ban was upheld in 2012. It has fulfilled its brief to advise and consult on the Bill of Rights (Whitaker 2010; NIHRC 2008).31 Yet after the HRC submitted its advice in 2008, the government conducted its own consultation.
The combination of consociational institutions and collective rights politics has not transformed Northern Ireland’s ethnopolitics. Instead, postconflict rights discourse extended its function as war by other means. The incorporation of human rights discourse into the peace process and the minimal peace being promoted produce other vulnerabilities. These contribute not just to present divisions but to the broader contradictions that both human rights law and discourse create regarding past and future violence.
Casualties of Peace
The consciousness of being at war, and therefore in danger, makes the handing over of all power to a small caste seem the natural, unavoidable condition of survival.
—George Orwell, Nineteen Eighty-Four, chapter 9
One March morning in 1998, a few weeks before the GFA was unveiled, I met a research participant for coffee. “Tommy,” an IRA volunteer and ex-prisoner, was agitated. The night before, he said, the IRA had punished a friend’s son who had bought some cannabis for himself and a friend. Paramilitaries burst into his flat, called him a drug dealer, and beat him, taking both the cannabis and the money his friend had brought to reimburse him. In a further insult, Tommy said, they also took a pornographic video and a jar of loose change. “That’s