The real deal? The post-conflict constitution as a peace agreement

Abstract

When intra-state armed conflicts end through a negotiated settlement, the conflict parties frequently agree to amend or replace the country’s constitution. Their aim is to entrench the settlement, address the conflict incompatibility, reform institutions and take other measures to prevent a recurrence of violence. This article argues that post-conflict constitutions (PCCs) should be understood as peace agreements. It motivates this argument on conceptual, functional and legal grounds. It demonstrates that PCCs comply with conventional definitions of a peace agreement, are an intrinsic component of the conflict resolution process and have a range of peace maintenance functions. As supreme law, they become the definitive peace agreement. Research on peace durability following negotiated settlements should therefore focus not only on comprehensive peace agreements (CPAs) but also on PCCs. PCCs should be conceived not as mere components of CPA implementation but as substantive political and legal agreements in their own right and as independent causes of peace.

Keywords:

• constitution
• constitutional reform
• peace agreement
• intra-state conflict

Acknowledgements

For their challenging and immensely helpful comments, I wish to thank two anonymous reviewers for Third World Quarterly, Karl DeRouen Jr., David Lanz, Aníbal Pérez-Liñán, Christina Murray, Gary Goertz and other colleagues at the Kroc Institute for International Peace Studies.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 There is currently no publicly available data set on PCCs. Constitutional texts more generally are available from the Constitute Project (https://www.constituteproject.org/).

2 A rare exception is Samuels (2006, 664), who maintains that a post-conflict constitution ‘can be partly a peace agreement and partly a framework setting up the rules by which the new democracy will operate’. Bell (2006, 391–94) observes that some peace agreements take the form of a constitution or incorporate a constitution, but she does not view PCCs in general as peace agreements.

3 The Peace Accords Matrix data set is available at https://peaceaccords.nd.edu/.

4 The UCDP data set of peace agreements is available at www.pcr.uu.se/research/ucdp/data sets/.

5 The United Nations Peacemaker data set is available at https://peacemaker.un.org/document-search.

6 The PA-X data set is available at https://www.peaceagreements.org/search?s=list.

7 These quotes are taken from an English-language version of the 2005 Constitution of the Republic of Burundi. Accessed at file:///Users/p04452535/Downloads/Burundi%20constitution%202005.pdf.

8 Common CPA provisions are evident in the following statistics: 76% of the CPAs in the Peace Accords Matrix cover military reform; 76% cover political or electoral reform; 71% cover police reform; 62% cover respect for human rights; 59% cover decentralisation or federalism; 53% cover civil administration reform; and 47% cover judicial reform (Joshi, Quinn, and Regan 2015, 556).

9 The 1995 Constitution of Bosnia and Herzegovina is an exception to the general pattern of constitutionalising a CPA through the requisite legal process. This constitution, contained in the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina, came into being upon the signing of the agreement, without complying with the constitutional requirements for parliamentary adoption (Yee 1996).

10 In 2015 the Vice President of the Constitutional Court, Sylvere Nimpagaritse, reported that the judges had been subject to political intimidation prior to concluding the case, causing him to flee the country (Al Jazeera 2015).

11 Common Article 3 states that the parties to a non-international armed conflict shall be bound to adhere to certain minimum rules of war and should endeavour to bring into force, by means of special agreements, all or part of the other provisions of the Geneva Convention.

Additional information

Notes on contributors

Laurie Nathan

Dr Laurie Nathan is a Professor of the Practice of Mediation and Director of the Mediation Program at the Kroc Institute for International Peace Studies, University of Notre Dame in the USA. He has published articles in African Affairs, the European Journal of International Relations, Global Governance, Global Policy, Human Rights Quarterly and International Affairs. He is the author of Community of Insecurity: SADC’s Struggle for Peace and Security in Southern Africa (Farnham: Ashgate, 2012).