Constitutional transformation is an increasingly important aspect of peacebuilding. Peacebuilding entails work at the social, economic, institutional and political levels to address the causes of conflict and lay foundations for peace. The constitutional dimensions of peacebuilding manifest in a range of different ways. One example involves the interaction between existing or new constitutional structures and transitional justice measures which provide accountability and redress for serious violations of human rights. A related issue concerns the involvement of ex-military fighters in constitutional processes. A deeper understanding of constitutional transformation can help to design an inclusive process that meets the needs and expectations of the range of different groups formerly involved in conflict and which potentially shifts the conflict from a militant to political space.
While the experience of conflict and peacebuilding is always dependent on the particular context, global experience provides some examples of how constitutional structures might address the causes of conflict. A new constitution might be necessary to build or re-build the institutions of the state after conflict or authoritarian rule. Constitutional structures such as federalism or consociationalism might seek to mitigate the risk of further conflict by accommodating the interests of diverse groups within the state.
Decisions taken in the peacebuilding process may assume constitutional dimensions and influence the process and the substance of subsequent formal constitutional change. Key constitutional changes may be negotiated as part of a peace agreement and formalised in interim constitutional provisions or an international treaty or agreement. The national and international actors involved in the peace building process, and their needs and expectations, will influence the future path of constitutional transformation.
Our work in this theme aims to better understand the constitutional dynamics of peacebuilding with a view to enhancing the effectiveness of peacebuilding processes.
Transitions from conflict to institution-building to encourage the peaceful settlement of disputes:
Bruce Oswald’s research addresses several facets of the interface between peacebuilding and constitutional transformation. His work considers how constitutions and constitution-making processes might accommodate the internal security apparatus and recognise civil defence groups and the implications for peacebuilding and long-term constitutional structures. He also examines the role of ‘informal justice’ or pluralist legal systems in post-conflict justice and peacebuilding and the extent to which pluralism is recognised in constitutional transformation. His research also critically examines the dimensions of international involvement in law-making in the context of peacebuilding after conflict.
Post-Conflict State Building:
Post Conflict State Building – Melbourne Law Masters
Bruce Oswald and Cheryl Saunders teach an intensive subject on Post-Conflict State Building in the Melbourne Law Masters. The subject deals with the body of law and practice that applies to states as they emerge from conflict and try to build strong, prosperous and responsive communities. It lies at the intersection of several bodies of law including international law, international humanitarian law, international human rights law and domestic constitutional law. Many of the issues with which it deals are at the cutting-edge of these fields: the extra-territorial effect of constitutional law; the possibility of a ‘lex pacificatoria’ to govern the ambiguous character of intra-state peace agreements; the legitimacy of constitutions developed with international assistance; the notion of transformative military occupation. The subject is taught regularly in the MLM every second year and was last held on 12-18 October 2016.
Analysis: Colombian Peace Hangs on a Very Special Plebiscite
Martha Maya, IACL Blog (September 17, 2016)
Martha Maya analyses the context, rationale and challenges of Colombia's upcoming plebiscite on the Peace Agreement, scheduled for 2 October 2016.
Civil Defence Groups: Developing Accountability
Bruce Oswald, ‘Civil Defence Groups: Developing Accountability’ (2014) United States Institute of Peace, Special Report 350, 1-12.
Governments increasingly turn to state sanctioned civil defence groups to provide security to communities when state security forces are unwilling or unable to do so. This raises a number of points of interaction between peacebuilding and constitutional transformation. For the state, addressing national security as an interim and transitional measure might influence how the constitution deals with its internal security apparatus. For example, should civil defence groups be formally recognised in an interim constitution, and if yes, what happens to such groups as the state transitions to more formal structures of security? For the local community, how might the state be held accountable for its support of civil groups? Are the actions of such groups reviewable as a matter of law? What forms of reparations are available for alleged breaches of law by such groups? Exploring these constitutional issues contributes to answering the broader question as to whether, in fact, civil defence groups add to peacebuilding in a substantive way.
“Constitutional review” in Conciliation Resources
Cheryl Saunders (ed), “Constitutional review” in Conciliation Resources, Legitimacy and Peace Processes, Accord Issue 25, April 2014.
Cheryl Saunders explains how a constitution can help safeguard foundations for peace by developing a new or revised framework for state-society relations. The “performance legitimacy” of a new constitution (how it works in practice) is a major test, assessed over time through the effectiveness of the state and its level of popular approval. Constitutional reviews and peace processes share core principles of best practice, including wide public participation and fair representation of views and interests, but they are not always easily compatible. The imperatives of making peace may bring in stakeholders who appear ill-suited for leadership under a civil constitution. Such realities do not contradict the potential for transformation of coercive actors, but they highlight the challenges of including controversial actors in constitutional government.
Informal Justice and United Nations Peacekeeping and Dealing with Disputes in Afghanistan: Principles and Rules for the Tactical Level
Bruce Oswald, ‘Informal Justice and United Nations Peacekeeping’ (2014) 10 International Organisations Law Review 1, 166-192 ‘Dealing with Disputes in Afghanistan: Principles and Rules for the Tactical Level’ (2012) 23 Small Wars and Insurgencies Journal 1, 174-192.
A range of issues arise when local communities seek justice using pluralistic systems of law (for example, religious law or community customary law, or a combination of both) within monist systems of law that recognise the supremacy of the state, particularly in areas such as criminal law. The relevance to peace building and constitutional transformation is the extent to which pluralist legal systems should be included in constitutional transformation. For example, should the constitution reflect what many consider the reality of post-conflict situations, which is that state sanctioned justice is out of reach for local communities? One danger in relying on pluralist legal frameworks is the lack of accountability of local actors who exercise power and authority in such systems. For example, in some communities the local headman or religious leader might exercise the power over life and death for breaches of custom (such as marrying outside one’s class or caste) which go against national law.
Model Codes for Criminal Justice and Peace Operations: Some Legal Issues
Bruce Oswald, ‘Model Codes for Criminal Justice and Peace Operations: Some Legal Issues’ (2004) 9 Journal of Conflict and Security Law 2, 253-275.
A joint United States Institute of Peace and Irish Centre for Human Rights project sought to develop model criminal codes to apply in situations where criminal justice systems are in disarray and require extensive reform. This work raised two different kinds of concerns that also apply to constitutional transformation in the context of peacebuilding. First, is the act of making laws a technical one in the context of peacebuilding? That is to say, is drafting criminal law a matter for communities and their cultures, or is it more a technical exercise which addresses for example, elements of crimes with no reference to local language or concepts of crimes? Similar questions are of course also relevant to constitution drafting. Secondly, to what extent should members of the international community engage in drafting local legal frameworks, particularly in situations where the state engaged in constitutional transformation and peacebuilding has limited resources?
Networked Governance of Freedom and Tyranny: Peace in Timor-Leste
Hilary Charlesworth with John Braithwaite and Adérito Soares, Networked Governance of Freedom and Tyranny: Peace in Timor-Leste (ANU Press, 2012)
This book offers a new approach to the extraordinary story of Timor-Leste. It presents freedom in Timor-Leste as an accomplishment of networked governance, arguing that weak networks are capable of controlling strong tyrannies. Yet, as events in Timor-Leste since independence show, the nodes of networks of freedom can themselves become nodes of tyranny. The authors argue that constant renewal of liberation networks is critical for peace with justice – feminist networks for the liberation of women, preventive diplomacy networks for liberation of victims of war, village development networks, civil society networks. Constant renewal of the separation of powers is also necessary. A case is made for a different way of seeing the separation of powers as constitutive of the republican ideal of freedom as non-domination.
The book is also a critique of realism as a theory of international affairs and of the limits of reforming tyranny through the centralised agency of a state sovereign. Reversal of Indonesia’s 1975 invasion of Timor-Leste was an implausible accomplishment. Among the things that achieved it was principled engagement with Indonesia and its democracy movement by the Timor resistance. Unprincipled engagement by Australia and the United States in particular allowed the 1975 invasion to occur. The book argues that when the international community regulates tyranny responsively, with principled engagement, there is hope for a domestic politics of nonviolent transformation for freedom and justice [Abstract from ANU Press].
Pillars and Shadows: Statebuilding as Peacebuilding in Solomon Islands
Hilary Charlesworth with John Braithwaite, Sinclair Dinnen, Matthew Allen and Valerie Braithwaite, Pillars and Shadows: Statebuilding as Peacebuilding in Solomon Islands (ANU Press, 2010)
This book examines the sources of the armed conflict and coup in the Solomon Islands before and after the turn of the millennium. The Regional Assistance Mission to Solomon Islands (RAMSI) has been an intensive peacekeeping operation, concentrating on building ‘core pillars’ of the modern state. The book argues that RAMSI did not initially take adequate notice of a variety of shadow sources of power in the Solomon Islands, for example logging and business interests. At first RAMSI’s state-building was neither very responsive to local voices nor to root causes of the conflict, but it slowly changed tack to a more responsive form of peacebuilding. The craft of peace as learned in the Solomon Islands is about enabling spaces for dialogue that define where the international actors should pull back to allow local actors to expand the horizons of their peacebuilding ambition [Abstract from ANU Press].
Reconciliation and Architectures of Commitment: Sequencing peace in Bougainville
Hilary Charlesworth with John Braithwaite, Peter Reddy and Leah Dunn, Reconciliation and Architectures of Commitment: Sequencing peace in Bougainville (ANU Press, 2010)
Following a bloody civil war, peace consolidated slowly and sequentially in Bougainville. That sequence was of both a top-down architecture of credible commitment in a formal peace process and layer upon layer of bottom-up reconciliation. Reconciliation was based on indigenous traditions of peacemaking. It also drew on Christian traditions of reconciliation, on training in restorative justice principles and on innovation in women’s peacebuilding. Peacekeepers opened safe spaces for reconciliation, but it was locals who shaped and owned the peace. There is much to learn from this distinctively indigenous peace architecture. It is a far cry from the norms of a ‘liberal peace’ or a ‘realist peace’. The authors describe it as a hybrid ‘restorative peace’ in which ‘mothers of the land’ and then male combatants linked arms in creative ways. A danger to Bougainville’s peace is weakness of international commitment to honour the result of a forthcoming independence referendum that is one central plank of the peace deal [Abstract from ANU Press].