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Courting peace: Judicial review and peace jurisprudence

  • JENNA SAPIANO (a1)
Abstract:

The current debate measuring the trade-offs between democracy and judicial review is unable to analyse the influence of courts in post-conflict states. However, a court with authority over constitutional review is commonplace in new constitutions, including those that have been drafted (or revised) as part of a political settlement. This article suggests that judicial institutions are as important as political institutions in sustaining a political settlement. As this article sets out, the parties to a peace process are required to make numerous compromises to negotiate new (or revised) institutional arrangements. Several cases are considered which illustrate how domestic constitutional courts were asked to mediate between tensions inside the political settlement. In all of the examples, the courts interpreted peace to be the most important constitutional value, or the primary purpose of the constitution. The judiciary played a role in maintaining the constitutional link to the elite pacts of the peace agreement, while acknowledging that the link should not preserve elite pacts permanently or without limit. The article argues, first, that these cases constitute evidence of an emergent global ‘peace jurisprudence’ based on purposive interpretation and a principle of proportionality that protects the foundations of the political settlement, and, second, questions the extent to which international courts are willing or able to adopt this jurisprudence.

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Email: jms233@st-andrews.ac.uk
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I would like to thank Tony Lang, Kenneth Campbell, Mihaela Mihai and the anonymous reviewers for their helpful comments on early drafts of this article. I would also like to thank the other authors in this issue for their comments and insights. A special thanks to Christine Bell for overseeing this project and the Political Settlements Research Project for its funding. This article was presented as a part of a panel at the ICON-S Conference in July 2015. All errors remain my own.

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1 V Hart, ‘Constitution-Making and the Transformation of Conflict’ (2001) 26 Peace and Change 153, 158.

2 This term has not been coined here; see, for example, C Bell, ‘Peace Agreements: Their Nature and Legal Status’ (2006) 100 American Journal of International Law 373 and Easterly, JS, ‘Peace Agreements as a Framework for Jus Post Bellum’ in Stahn, C et al. (eds), Jus Post Bellum: Mapping the Normative Foundations (OUP, Oxford, 2014) who uses the concept ‘peace agreement constitution’ as a comparative tool. See also C Bell, On the Law of Peace (OUP, Oxford, 2008); J Widner, ‘Constitution Writing in Post-Conflict Societies: An Overview’ (2008) 49 William and Mary Law Review 1513; H Ludsin, ‘Peacemaking and Constitution-Drafting: A Dysfunctional Marriage’ (2011) 33 University of Pennsylvania Journal of International Law 239; K Samuels, ‘Post-Conflict Peace-Building and Constitution-Making’ (2005) 6 Chicago Journal of International Law 663; J Darby and R Mac Ginty (eds), The Management of Peace Processes (Palgrave Macmillan, London, 2000); and R Teitel, ‘Transitional Jurisprudence: The Role of Law in Political Transformations’ (1997) 106 Yale Law Journal 2009 who uses the term ‘transitional constitution’.

3 Hart (n 1) 157.

4 Ibid.

5 I use the term ‘constitutional court’ or ‘court’ in this article for consistency when talking in general about an apex court, although in some jurisdictions the court of last resort on constitutional issues is a separate supreme court.

6 See Barak, A, Purposive Interpretation (Princeton University Press, Princeton, NJ, 2005).

7 There have been a number of recent publications on this topic: including, inter alia, Alexy, R, A Theory of Constitutional Rights (OUP, Oxford, 2002); Barak, A, Proportionality: Constitutional Rights and Their Limitations (CUP, Cambridge, 2012); Bomhoff, J, Balancing Constitutional Rights (CUP, Cambridge, 2013); Cohen-Aliya, M and Porat, I, Proportionality and Constitutional Culture (CUP, Cambridge, 2013); Webber, GCN, The Negotiable Constitution (CUP, Cambridge, 2009); Huscroft, G, Miller, BW and Webber, GCN, Proportionality and the Rule of Law (CUP, Cambridge, 2014); S Gardbaum, ‘Positive and Horizontal Rights: Proportionality’s Next Frontier or a Bridge Too Far?’ in VC Jackson and M Tushnet (eds), Proportionality: New Frontiers, New Challenges (CUP, Cambridge, forthcoming) available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2726794>. See also K Möller, The Global Model of Constitutional Rights (OUP, Oxford, 2015) and K Möller, ‘Constructing the Proportionality Test: An Emerging Global Conversation’ in L Lazarus, C McCrudden and N Bowles (eds), Reasoning Rights (Hart, Oxford, 2014), who argues that the principle of proportionality is part of an emerging ‘global model’ of rights.

8 The cross section of variables used to isolate the case studies allow for sufficient difference in context and similarities in structure and implementation for lessons to be drawn from the comparative analysis. The case studies were selected for having protracted conflicts, with high civilian casualties. In Bosnia-Herzegovina and Northern Ireland, the peace agreement and constitution resulted in a termination of the conflict (although the stability of that peace is fragile, it is holding). In Colombia, the civil war continued past the adoption of the 1991 Constitution, however, it ended the conflict between the state and some of the rebel groups, including the M-19. The constitution is relevant in the ongoing peace process. See MJ Cepeda Espinosa, ‘The Peace Process and the Constitution: Constitution Making as Peace Making?’ (2016) Blog of the International Association of Constitutional Law available at <https://iacl-aidc-blog.org/2016/07/04/manuel-jose-cepeda-espinosa-the-peace-process-and-the-constitution-constitution-making-as-peace-making/>. Northern Ireland, as a sub-state entity, stands out as a case study in this article. However, the Belfast Agreement and the Northern Ireland Act (1998), I argue, are together an example of a peace agreement constitution at a sub-state level. The case, Robinson v Secretary of State for Northern Ireland, also stands out as a decision from the Judicial Committee of the British House of Lords as the court of last resort on matters concerning the implementation of the Agreement and Act. This is different from Bosnia-Herzegovina and Colombia, which both established strong-form constitutional courts under the new peace agreement constitution. However, in Robinson the House of Lords made a very clear determination on the status of the Belfast Agreement and Act, although the House of Lords (and now the Supreme Court) is an example of weak-form judicial review.

9 Mac Ginty, R, No War, No Peace: The Rejuvenation of Stalled Peace Processes and Peace Accords (Palgrave MacMillan, Basingstoke, 2008) 18. The recognition that peace is a process is reflected in the idea of the political settlement, which conceives of the peace agreement, constitution drafting and ongoing political transition as a continuous negotiation process (V Fritz and AR Menocal, Understanding State-Building from a Political Economy Perspective: An Analytical and Conceptual Paper on Processes, Embedded Tensions and Lessons for International Engagement Report for DFID’s Effective and Fragile States Teams (Overseas Development Institute, London, 2007). While it is believed that many states (the US or Australia, for example) exist in a state of peace, there is also constant contestation in the political space that has the potential to trigger political violence (however mild). For example, there are have been past and ongoing racial tensions in the US and continuing discrimination against indigenous communities in Australia, which have implications on the constitution in both cases. There are also concerns with structural violence that exist long after the cessation of conflict. There is, however, more space and time for constitution drafting or amending where there is no violence or near-violence.

10 For example, the 1993 Interim Constitution of South African. There is scope to argue that the peace agreements can be likened to an interim constitution, an interim constitution may perpetuate the ‘status quo’ or baseline constitution that would be difficult to then later on deviate from when forming a new, permanent constitution. However, interim constitutions can also be seen as a more useful conflict resolution practice than drafting a permanent constitution immediately following the end of the conflict. For more on interim constitutions see Charmaine Rodrigues’s article in this issue and K Zulueta-Fülsher, Interim Constitutions: Peacekeeping and Democracy-Building Tools (International IDEA, Stockholm, 2015).

11 Bell (2006) (n 2) 374.

12 M Kaldor, for example, argues that peacemaking and constitution drafting need to be kept separate in the context of ‘new wars’. Although, as this article points out, there can be tensions in linking these two processes, I do not agree with this (dated) argument. In practice, peacemaking and constitution drafting often cannot be separated. M Kaldor, ‘How Peace Agreements Undermine the Rule of Law in New War Settings’ (2016) 7 Global Policy 146. See also M Brandt et al., Constitution-making and Reform: Options for the Process (Interpeace, Geneva, 2011) 257–8 which lists both risks and opportunities of linking conflict resolution and constitution-making; J Widner, ‘Constitution Writing and Conflict Resolution’ (2005) 94 Commonwealth Journal of International Affairs (Roundtable) 503, who looks at the relationship between constitution-writing and violence.

13 See OO Varol, ‘Temporary Constitutions’ (2014) 102 California Law Review 409, who makes a descriptive and normative case against constitutions written with the intention of being permanent; see fn 6, 411 for a list of those who make a case for enduring constitutions and a short description of their arguments.

14 M Loughlin, The Idea of Public Law (OUP, Oxford, 2004) ch 6.

15 There are, of course, efforts to make peace processes more inclusive, see V Hart, ‘Constitution-Making and the Right to Take Part in a Public Affair’ in LE Miller (ed), Framing the State in Times of Transition (USIP Press, Washington, DC, 2010).

16 For more on entrenchment and unamendability in post-conflict (and post-authoritarian) constitutions, see Silvia Suteu’s article in this issue.

17 VC Jackson, ‘What’s in a Name? Reflections on Timing, Naming, and Constitution-Making’ (2008) 49 William and Mary Law Review 1249. Jackson points to the paradox of constitution making in post-conflict environments, in which constitutions are both political pacts of the moment and foundational, legal documents that hold universal and general principles to help elites rise above that moment.

18 I borrow M Tushnet’s definition of strong-form judicial review: ‘the courts have general authority to determine what the Constitution means … [w]hatever limits there are on that authority, such as those imposed by the political question doctrine or interpretive approaches counselling deference to the policy judgments of the other branches, originate from the courts themselves’. M Tushnet, ‘Alternative Forms of Judicial Review’ (2003) 101 Michigan Law Review 2782, 2784.

19 I use S Issacharoff’s phrase to draw attention to his argument that while ‘it is becoming commonplace for courts to confront questions that were long deemed beyond the realm of possible judicial competence [there are] difficulties in confronting an area without clear markers in either legal or political theory’ (S Issacharoff, ‘Democracy and Collective Decision Making’ (2008) 6 International Journal of Constitutional Law 231, 266). Issacharoff is sceptical of courts engaging with such first-order question, reserving the situations in which courts should ‘override local political arrangements’ (263).

20 T Ginsburg, ‘The Global Spread of Constitutional Review’ in K Whittington and D Keleman, Oxford Handbook of Law and Politics (OUP, Oxford, 2008). This trend is also present in constitutions written as part of democratic transitions, for more see Tom Gerald Daly in this issue, who takes a more sceptical approach to judicial review.

21 R Hirschl, ‘The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions’ (2000) 25 Law and Society 95.

22 Ginsburg, T, Judicial Review in New Democracies (CUP, Cambridge, 2000) 2134.

23 See Choudhry, S (ed), The Migration of Constitutional Ideas (CUP, Cambridge, 2006).

24 See, for example, J Waldron, ‘The Core of the Case against Judicial Review’ (2006) 115 Yale Law Journal 1346; Tushnet, M, Taking the Constitution Away from the Court (Princeton University Press, Princeton, NJ, 2000); and Bellamy, R, Political Constitutionalism (CUP, Cambridge, 2007).

25 See, for example, R Dworkin, Law’s Empire (Hart Publishing, Oxford, 1998 [1988]) and J Ely Hart, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, Cambridge, MA, 1980).

26 Bellamy (n 24) 5.

27 I borrow M Tushnet’s definition of ‘reasonably well-functioning’: ‘Reasonably well-functioning institutions are imperfect but not systematically so, nor to a large degree. Such institutions will make mistakes identifying and protecting rights, but those mistakes will be ransom (with respect to both subject-matter and the beneficiates of rights) and they will not be of a type that leads to a downwards spiral of rights-protection.’ M Tushnet, ‘How Different are Waldron’s and Fallon’s Core Cases For and Against Judicial Review’ (2010) 30 Oxford Journal of Legal Studies 49, fn 10.

28 P Dann and Z al-Ali, ‘The Internationalized Pouvoir Constituent – Constitution-Making under External Influence in Iraq, Sudan and East Timor’ (2006) 10 Max Planck United Nations Yearbook 1.

29 See Tierney, S, ‘We the Peoples: Balancing Constituent Power and Constitutionalism in Plurinational States’ in Walker, N and Loughlin, M (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (OUP, Oxford, 2007).

30 One leading example is Marbury v Madison from the American Supreme Court (5 US (1 Cranch) (1803) 137). That decision altered the interpretation of the US Constitution by allowing courts, once petitioned, to review if legislation complied with the US Constitution. Marbury, like the cases considered foundational in this article, established the legitimacy of courts to conduct judicial review, but, unlike the other decisions considered here, did not go beyond that to articulate the basic meaning of the constitution.

31 Southwest State Case 1 BVerGE 14 (1951) in DP Kommers and RA Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (3rd edn, Duke University Press, Durham NC, 2012) 82.

32 Golaknath v. State of Punjab, Supreme Court of India (1967) AIR 164, 1967 SCR (2) 762.

33 Kesavananda Bharati v State of Kerala, Supreme Court of India (1973) 4 SCC 225.

34 French Conseil Constitutionnel, Decision no 77-44 DC (16 July 1971).

35 VC Jackson and M Tushnet, Comparative Constitutional Law (2nd edn, Foundation Press, New York, NY, 2006) 586.

36 See, for example, the Supreme Court of Israel, Kol Ha-am case (1953); the Bergman case (1969); the Elon Moreh case (1979).

37 Jackson and Tushnet (n 35).

38 J Raz, Between Authority and Interpretation (OUP, Oxford, 2009) 322.

39 Barak (n 6).

40 Ibid 377.

41 Ibid 375.

42 Ibid 376.

43 Re B.C. Motor Vehicle Act [1985] 2 S.C.R. 486, 504. The Australian and German constitutional courts have made similar pronouncements. The United States Supreme Court has, on the other hand, engaged with original intent doctrine.

44 Barak (n 6) 377–84.

45 Ibid 381.

46 Ibid.

47 See the preambles of the Bosnian and Colombian constitutions; and art 22 of the Colombian Constitution.

48 See above (n 7) for a list of recent publications.

49 A Barak, ‘Proportionality (2)’ in M Rosenfeld and A Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (OUP, Oxford, 2012).

50 The most notable example of a limitations clause is section 1 of the Canadian Charter of Rights and Freedoms which reads as follows: ‘The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’ South Africa (art 36, of 1996 Constitution), Israel, New Zealand (art 5, Bill of Rights) and Australia (section 28, 2004 Human Rights Act of the Australian Capital Territory and section 7, 2006 Charter of Human Rights and Responsibilities Act of the State of Victoria) have also included limitations clauses in their constitutional documents. The European Convention on Human Rights allows limitations that are ‘necessary in a democratic society’ (arts 8(2), 9(2), 10(2), 11(2)).

51 R. v Oakes, Supreme Court of Canada (1986) 1 S.C.R.103.

52 Ibid paras 69–71.

53 See D Grimm, ‘Proportionality in Canadian and German Constitutional Jurisprudence’ (2007) 57 University of Toronto Law Journal 383.

54 See D Beatty, The Ultimate Rule of Law (OUP, Oxford, 2004).

55 M Cohen-Eliya and I Porat, ‘American Balancing and German Proportionality: The Historical Origins’ (2010) 8 International Journal of Constitutional Law 263, 263.

56 Beatty (n 54).

57 GCN Webber, The Negotiable Constitution (CUP, Cambridge, 2009) 13.

58 Currently, the peace process between the government and the FARC has been closer to settlement than any time previously. On 23 June 2016, the parties signed a ceasefire that came into effect on 29 August 2016, which was signed amid great ceremony in September. However, the agreement was rejected in a ‘special plebiscite’ on 2 October 2016. This has not impacted on how this article has considered this case study.

59 The Democratic Unionist Party (DUP) was the only major party to oppose the Agreement.

60 For more on the Belfast Agreement and the conflict in Northern Ireland see B O’Leary and J McGarry, The Northern Ireland Conflict: Consociational Engagements (OUP, Oxford, 2004).

61 Northern Ireland Act 1998, section 16(1); reproduced in full in Robinson v Secretary of State for Northern Ireland & Ors [2002] UKHL 32, para 3.

62 Reproduced in full, alongside section 31, in Northern Ireland Act 1998, section 16(1); reproduced in full in Robinson (n 61) para 16.

63 Unionists (loyalists) support the political union between Northern Ireland and the United Kingdom (and are mostly Protestant). Nationalists (republicans) favour union with the Republic of Ireland (and are mostly Catholic).

64 Sinn Féin was also likely to become the dominant Nationalist party in the Assembly had a new election been called. There were concerns that the DUP and Sinn Féin would replace the more moderate Ulster Unionists and the Social Democratic and Labour Party (a nationalist party).

65 C Turpin and A Tomkins agree that the ‘majority of the House of Lords interpreted the legislation purposively, the purpose being to maintain devolved government in Northern Ireland’. And that ‘Robinson suggests that, when it comes to the interpretation of what the courts deem to be “constitutional statutes” (whatever that may mean in our unwritten constitution), different rules may apply from those which govern the interpretation of ordinary (i.e. nonconstitutional) legislation.’ C Turpin and A Tompkins, British Government and the Constitution Text and Materials (6th edn, CUP, Cambridge, 2007) 70–1.

66 Robinson (n 61) paras 10–11. It is also worth repeating here an extract from the opinion of Lord Hoffmann (in the majority): ‘According to established principles of interpretation, the Act must be construed against the background of the political situation in Northern Ireland and the principles laid down by the Belfast Agreement for a new start. These facts and documents form part of the admissible background for the construction of the Act just as much as the Revolution, the Convention and the Federalist Papers are the background to construing the Constitution of the United States’ (para 33).

67 Robinson (n 61) para 17.

68 Alexander Hamilton contended that the US Supreme Court would be the ‘least dangerous to the political rights of the Constitution’ (A Hamilton, Federalist No. 78 in A Hamilton et al., The Federalist Papers [1788] (ed MA Genovese) (Palgrave Macmillan, London, 2009).

69 For a complete history of the peace process and a more considered evaluation of the Dayton Agreement and the constitution see PC Szasz, ‘The Quest for a Bosnian Constitution: Legal Aspects of Constitutional Proposals Relating to Bosnia’ (1995) 19 Fordham International Law Journal 363.

70 The Constitution of Bosnia-Herzegovina sets out in the preamble that the constitution is ‘dedicated to peace, justice, tolerance and reconciliation’ and is determined by the ‘Bosniacs, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina’.

71 PW Galbraith, United States ambassador to Croatia between 1993 and 1998, in an interview with B O’Leary in August 2012, suggests that ‘absent explicitly ethnic power-sharing assurances to the three main groups the negotiations would neither have begun or concluded’ (C McCrudden and B O’Leary, Courts and Consociations: Human Rights versus Power-Sharing (OUP, Oxford, 2013) 24).

72 Constitution of Bosnia-Herzegovina, art II(2).

73 Constitutional Court of Bosnia-Herzegovina, Admissibility & Merits, Case No AP-2678/06, 29 Sept 2006, paras 21–22.

74 Constitutional Court of BiH (n 73) Separate Concurring Opinion of Judge David Feldman, para 3.

75 Constitutional Court of Bosnia and Herzegovina, Decision on Admissibility and Merits, U-5/09, 25 Sept 2009 cited in C McCrudden and B O’Leary (n 71) 89.

76 RH Pildes, ‘Forward: The Constitutionalization of Democratic Politics’ (2004) 118 Harvard Law Review 25.

77 Issacharoff (n 19).

78 Constitutional Court of Bosnia-Herzegovina, Decision on Admissibility, Case No U13/05, Separate Concurring Opinion of Judge David Feldman, 26 May 2006, para 4.

79 This case will be discussed below.

80 Amended in 1910, 1936 and 1945.

81 The constituent assembly that was convened to draft the new constitution did not include representatives of the FARC or ELN, although the ELN had signed past peace agreements.

82 Justice MJ Cepeda-Espinosa wrote of the Court: ‘Some people think that the Constitution is best suited for Switzerland. Needless to say, that is not my opinion. Nevertheless, one of the first objections raised against the 1991 Constitution by those who defended the previous 1886 Constitution was that it promised too much for a country like Colombia, and that it seemed to have been conceived for a society that was living in peace. Hence these critics revisited the common phrase with which Víctor Hugo disqualified the 1863 Colombian Constitution, which also contained a generous bill of rights and followed the federal model: “it is a constitution fit for angels.”.’ (MJ Cepeda-Espinosa, ‘Judicial Activism in a Violent Context: The Origin, Role, and Impact of the Colombian Constitutional Court’ (2004) 3 Washington University Global Studies Law Review 529, 532).

83 The institution of constitutional review, however, was not unique to the 1991 Constitution. Under the previous 1886 Constitution, the Supreme Court of Justice (CSJ) was called on to rule on the constitutionality of a national law where there was a disagreement concerning its constitutionality between the President and Congress.

84 T-406, 1992(2) G.C.C. at 198, in D Landau, ‘Two Discourses in Colombian Jurisprudence’ (2005) 37 The George Washington International Law Review 687, 727.

85 Landau suggests that the Colombian Constitutional Court has adopted a ‘new constitutionalism’ approach to judicial review which considers constitutions as extraordinary documents ‘that should be read broadly and with the document’s hierarchy of ideals in mind’; Landau (n 84) 709.

86 Enacted by Congress on 22 June 2005, signed into law by President Uribe on 22 July 2005. This was followed by Decree No 4760, 30 December 2005, which regulated aspects of the law.

87 This is according to official data, cited by the Statement by the Inter-American Commission on Human Rights on the Application and Scope of the Justice and Peace Law in Colombia, OEA/Ser/LV/II.125, Doc 15, 1 Aug 2006, para 7.

88 For a fuller account of the Justice and Peace Law, see LJ Laplante and K Theidon, ‘Transitional Justice in Times of Conflict: Colombia’s Ley De Justiciay Paz’ (2006) 28 Michigan Journal of International Law 49.

89 Under art 214(4), the Court may ‘[d]ecide on the petitions of unconstitutionality brought by citizens against statutes, both for their substantive content as well as for errors of procedure in their formation’.

90 Gustavo Gallón Giraldo y otros v Colombia, Constitutional Court of Colombia Judgement, C-370/06 (Dossier D-6032); English language abstract available at <http://english.corteconstitucional.gov.co/sentences/C-370-2006.pdf>.

91 Ibid para 6.2.3.2.2.1–6.2.3.2.2.10.

92 Ibid para 6.2.4.1–6.2.4.1.24.

93 Ibid para 6.2.2.1.1–6.2.2.1.7.30.

94 Constitutional Court, Press Release on the legal challenge to the Justice and Peace Law, Law 975 of 2005, Dossier D-6032 – Decision C-370/06, 18 May 2006.

95 See arts 241 and 379.

96 C-551/2003, C-1200/2003, C-970/2004, C-153/2007, C-588/2009, C-141/2010, C-1056/2012 and C-10/2013. See C Bernal, ‘Unconstitutional constitutional amendments in the case study of Colombia: An analysis of the justification and meaning of the constitutional replacement doctrine’ (2013) 11 International Journal of Constitutional Law 339.

97 Bernal (n 96).

98 Legislative Act 1/2012.

99 Although the transitional justice mechanisms established under this amendment are to be ‘exceptional’ there is no clear timeline given.

100 For more on the tensions between (temporary) transitional justice mechanisms and (more permanent) constitutions, see JM Méndez, ‘Constitutionalism and Transitional Justice’ in M Rosenfeld and A Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012) and C Bernal, ‘Transitional Justice within the Framework of a Permanent Constitution: The Case Study of the Legal Framework for Peace in Colombia’ (2014) 3 Cambridge Journal of International and Comparative Law 1136.

101 Judgment C-579/2013 (in which the Court accepted that prosecutions of members of illegal armed groups could be selected and prioritised as part of the transitional justice mechanism) and Judgment C-577/2014 (in which the Court ruled that former members of illegal groups could participate in politics after serving their sentence for ‘political crimes’). The details of these cases go beyond the scope of this article. For a fuller account of the cases see Bernal (n 100).

102 The claim was based on art 14 of the Convention, art of Protocol No 1 and art 1 of Protocol No 12.

103 Sejdić and Finci v Bosnia and Herzegovina, European Court of Human Rights (ECtHR), 27996/06 and 34836/06, 22 Dec 2009. Two separate applications were submitted to the Court in summer 2006, which were joined and heard before the Grand Chamber in 2009, three years after the Constitutional Court decision. The decision has not yet been fully implemented.

104 Ibid, paras 45, 47. On the issue of proportionality, as the Court was competent ratione temporis to consider the period after the ratification and the Protocol No 1, it did ‘not need to decide whether the upholding of the contested constitutional provisions after ratification of the Convention could be said to serve a “legitimate aim” since … the maintenance of the system in any event does not satisfy the requirement of proportionality’ (para 46).

105 McCrudden and O’Leary (n 71).

106 Ibid xv.

107 Partly concurring and partly dissenting opinion of Judge Mijovic, joined by Judge Hajiyev, and Dissenting opinion of Judge Bonello in Sejdić (n 103).

108 Dissenting opinion of Judge Bonello in Sejdić (n 103).

109 La Rochela Massacre v Colombia, Inter-American Court of Human Rights, 11 May 2007, para 192.

110 Proportionality is also a principle in international law, under which full amnesties are prohibited, however, while ‘[i]nternational law may require that punishment be proportionate to the seriousness of the crimes committed … neither international law not judicial practice has yet determined with any certainty what quantum of penalty is proportionate’ (see Méndez (n 100) 1278).

111 La Rochela Massacre (n 109) para 196.

112 La Rochela Massacre (n 109) para 192.

113 Lucio Parada Cea, Héctor Joaquín Miranda Marroquín, Fausto García Funes, Andrés Hernández Carpio, Jose Catalino Meléndez and Carlos Antonio Martínez, Inter-American Commission of Human Rights, Report N° 1/99, Case 10.480, El Salvador, 27 January 1999, para 123, 129.

114 Concurring opinion of Judge Diego Garcia-Sayán, Judgment of The Massacres of El Mozote and Nearby Places v El Salvador, The Inter-American Court of Human Rights, 25 October 2012, paras 37–38.

115 See C Bell, ‘What We Talk About When We Talk About International Criminal Law’ (2014) 5 Transnational Legal Theory 241, 273–4 on the ‘mutually referencing’ positions of European institutions.

116 Tully, J, Strange Multiplicity: Constitutionalism in an Age of Diversity (CUP, Cambridge, 2005) 211 cited in Hart (n 1) 168.

117 RH Pildes, ‘Ethnic Identity and Democratic Institutions: A Dynamic Perspective’ in S Choudhry (ed), Constitutional Design for Divided Societies: Integration or Accommodation? (OUP, Oxford, 2008) 195. Pildes, as an example, uses the Constituent Peoples Case (Constitutional Court of Bosnia and Herzegovina, Request for Evaluation of Constitutionality of Certain Provisions of the Constitution of Republika Srpska and the Constitution of the Federation of BiH, Case U 5/98, Partial Decision (30 Jan 2000), Partial Decision (19 Feb 2000), Partial Decision (1 July 2000), Partial Decision (19 Aug 2000)), in which the Bosnian Constitutional Court declared unconstitutional provisions of the entities constitutions that limited citizenship in the entity on the basis of ethnicity. The Court found that all ethnic groups were ‘constituent peoples’ under the constitution. While Pildes argues that this decision dismantled part of the ‘accommodationist’ political settlement, the decision also entrenched the ethnic divide in the constitution, recognising collective ethnic rights of the ‘constituent peoples’, and in so doing found a balance between democratic principles and international law, on the one hand, and peace, on the other. For more on this case see AM Mansfield, ‘Ethnic but Equal: The Quest for a New Democratic Order in Bosnia and Herzegovina’ (2003) 103 Columbia Law Review 2052. McCrudden and O’Leary take this phrase from Pildes, suggesting that courts can determine the success or failure of consociational arrangement, however, they admit that there has been very little research done on this question; see (n 71) 43. Pildes also suggests that there is a temporal element to courts acting as ‘unwinders’ – the idea of time as an important factor in political settlements is also reflected in the ideal of the ‘constitutional moment’, which is elusive in a peace agreement constitution; see (n 76).

* I would like to thank Tony Lang, Kenneth Campbell, Mihaela Mihai and the anonymous reviewers for their helpful comments on early drafts of this article. I would also like to thank the other authors in this issue for their comments and insights. A special thanks to Christine Bell for overseeing this project and the Political Settlements Research Project for its funding. This article was presented as a part of a panel at the ICON-S Conference in July 2015. All errors remain my own.

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