Conflict Constitution-Making in Libya and Yemen

62 Pages Posted: 31 Jul 2018

See all articles by Darin Johnson

Darin Johnson

Howard University School of Law

Date Written: 2017

Abstract

In Libya and Yemen, the political transitions heralded by the Arab Spring devolved into civil wars. As a consequence of these devastating civil wars, constitutional reform processes which were intended to cement political transitions from authoritarianism to democracy were instead held hostage by the armed perpetrators of the protracted civil conflicts. As the political transitions in Libya and Yemen devolved into civil war, the constitution-making processes also devolved into conflict over the same outcomes that armed elites sought on the battlefield by force. These armed actors discovered a new battlefront in Yemen and Libya’s constituent debates. Comparative constitutional scholarship has emphasized the importance of participatory constitution-making as a post-conflict tool for political transition. However, ongoing violent conflict frustrates open, transparent, inclusive and participatory processes—the hallmarks of participatory constitution-making. The violent intensity of the civil conflicts in Yemen and Libya undermined the conciliatory objectives of participatory constitution-making in both countries. The undermining of conciliatory processes, in turn, imperiled the creation of consensus constitutional texts and risked the creation of “conflict constitutions” that would prolong, rather than remedy, the sources of conflict. In this article, the author develops a conceptual theory of “conflict constitution-making” that assesses the impact of civil war on constitution-making processes and the resultant constitutions, and applies that theory to the events in Libya and Yemen. The author's theory of conflict constitution-making draws from comparative constitutional scholarship and posits that civil war transforms constitution-making processes from zones of conciliation into zones of conflict. During civil war, unless a political détente can be reached that commits armed actors to a consensual and participatory constitution-making process, armed power brokers exploit the process and drive constitution-makers away from accommodation and into conflict. Such a conflict constitution-making process produces a “conflict constitution” that enshrines rather than ameliorates the sources of conflict. An exploration of the impact of violent civil conflict on constitution-making is critical because, although best practice calls for the creation of a constitution only after the cessation of hostilities, political transitions are often fluid and constitution-making processes undertaken during periods of relative peace may continue during periods of extreme violence (as seen in Libya and Yemen). A better understanding of the impact of violence on constitution-making processes will better enable citizens, scholars and practitioners to assess, and if necessary, reform those processes as well as the constitutions created by them. While participatory constitution-making is the aspirational ideal, conflict constitution-making may increasingly become the reality in transitioning states. Accordingly, an understanding of how to best remedy a “conflict constitution-making” process is one of the goals of this piece.

Keywords: Arab Spring, Libya, Yemen, Constitution-Making, Post-Conflict Transitions, Ethnic Federalism, Consociationalism, Centripetalism, Constitutional Design, Transitional Justice, Yemeni Constitution, Libyan Constitution, Yemeni Civil War, Libyan Civil War, United Nations Peace Agreement

Suggested Citation

Johnson, Darin, Conflict Constitution-Making in Libya and Yemen (2017). 39 University of Pennsylvania Journal of International Law 293, Available at SSRN: https://ssrn.com/abstract=3212480

Darin Johnson (Contact Author)

Howard University School of Law ( email )

2900 Van Ness Street, N.W.
Washington, DC 20008
United States

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