Academic journal article Chicago Journal of International Law

Post-Conflict Peace-Building and Constitution-Making

Academic journal article Chicago Journal of International Law

Post-Conflict Peace-Building and Constitution-Making

Article excerpt

Peace-building accomplished through international intervention has had little success in achieving sustainable peace. In February of 2004, Haiti slipped back into chaos and despair, turning ten years of international and Haitian statebuilding efforts to dust. Liberia is in its second round of international intervention since returning to conflict in 2004 following UN supervised elections in 1997. There is daily violence in Iraq and ongoing instability in Afghanistan. Kosovo remains under UN administration, with an uncertain future and ongoing undercurrents of conflict.

Theories abound for the lack of success in peace-building. Some focus on operational limitations and the unintended negative consequences of international aid, while others focus on institutional lacunae.1 Increasingly though, it is accepted that the most critical problems involve a lack of knowledge of how to rebuild states and an associated failure of state-building strategy.2 This Article focuses on one of the key elements of post-conflict peace-building: the role of constitution-making in the political and governance transition.

It is widely acknowledged that the provision of security is the sine qua non of peace-building, and increasingly that the building or rebuilding of public institutions is key to sustainability; however, the fact remains that a successful political and governance transition must form the core of any post-conflict peace-building mission. As we have observed in Liberia and Haiti over the last ten years, conflict cessation without modification of the political environment, even where state-building is undertaken through technical electoral assistance and institution- or capacity-building, is unlikely to succeed.3 On average, more than 50 percent of states emerging from conflict return to conflict.4 Moreover, a substantial proportion of transitions have resulted in weak or limited democracies.5

The design of a constitution and its constitution-making process can play an important role in the political and governance transition.6 Constitutionmaking after conflict is an opportunity to create a common vision of the future of a state and a road map on how to get there. The constitution can be partly a peace agreement and partly a framework setting up the rules by which the new democracy will operate.

An ideal constitution-making process can accomplish several things. For example, it can drive the transformative process from conflict to peace, seek to transform the society from one that resorts to violence to one that resorts to political means to resolve conflict, and/or shape the governance framework that will regulate access to power and resources-all key reasons for conflict. It must also put in place mechanisms and institutions through which future conflict in the society can be managed without a return to violence.

I. THE CRITERIA FOR ASSESSMENT: DEMOCRACY AND PEACE

Democracy and peace are adopted in this Article as the two criteria by which the impact of constitutions should be assessed. For countries emerging from violent conflict or facing the threat of violent conflict, the importance of sustainable peace is self-evident. The importance of democracy requires a little more explanation. Despite the fact that transitions to democracy have been shown to be highly destabilizing and conflict prone,7 and that democratization without careful understanding of the pressures on the society can create conflict in itself, democratization should still be considered the best governance structure for long-term conflict cessation.

In the immediate post-conflict environment, the adoption of a democratic regime can assist in the resolution of the struggle for power by providing an internationally accepted standard of who is entitled to govern. This standard is based on open and fair competition for power, structured around the popular vote.8 Moreover, conflict-mediating structures and increased opportunities for participation should encourage non-violent resolution of conflicts. …

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