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Journal Articles International Journal of Constitutional Law Year : 2020

Conceptualizing the role of courts in peace processes


Abstract What role do courts play in peace processes? Relying on case studies of South Africa and Colombia, we identify two functions. First, by invalidating some peripheral provisions constitutional courts can enhance the legitimacy of those agreements by adding the imprimatur of legalism to the political support the agreements already have. Second, the international law of impunity can be an obstacle to reaching a peace agreement, but domestic courts can weaken that impediment by deferring a confrontation with that law by creative interpretation of both the peace agreement and international law, thereby postponing to the indefinite future any actual confrontation between the agreement and international law.


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Dates and versions

hal-03845550 , version 1 (09-11-2022)



Mark Tushnet, Beatriz Botero Arcila. Conceptualizing the role of courts in peace processes. International Journal of Constitutional Law, 2020, 18 (4), pp.1290-1302. ⟨10.1093/icon/moaa088⟩. ⟨hal-03845550⟩
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