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The Judicialization of Peace

Item

Title

The Judicialization of Peace

Date

2018

Volume

59

Bibliographic Citation

59 Harv. Int'l L. J. 2 (2018)

Abstract

As international courts gain in influence, many worry that they will impoverish domestic politics— that they will limit democratic deliberation, undermine domestic institutions, or even thwart crucial political initiatives such as efforts to make peace. Indeed, many states are in the midst of withdrawing, or actively considering withdrawal, from international commitments presided over by international courts. The Article focuses on the currently unfolding Colombian peace process, the first to be negotiated under the watch of not one but two international courts, to show that these concerns misconstrue the way international courts actually work. Throughout four years of peace talks, many predicted that the International Criminal Court and the Inter-American Court of Human Rights would impede peace by demanding prosecution of war criminals. Instead, the 2016 Colombian peace accord opens the way to a far less punitive peace than many of those familiar with the courts and underlying treaties would have deemed possible. The effect of the engagement of the international courts in Colombia has not been to impose rigid conditions from afar, but rather to allow domestic players to reinterpret the content of Colombia’s international legal obligations: the terms of Colombia’s peace were produced through—not despite—the international courts’ ongoing deliberative engagement with the peace process. The Article draws on original empirical data to reveal precisely how the international courts enabled the construction of Colombia’s sui generis peace. The Article thus speaks directly to those voicing concern over the increased involvement of international courts in national politics in general, and in peace and reconciliation in particular. It also contributes to our knowledge about how, precisely, international law comes to influence domestic politics, and how, in turn, domestic politics shape international law.

SSRN URL

Keywords

International Criminal Court; Columbia; Inter-American Court of Human Rights; Columbian peace talks; Revolutionary Armed Forces of Colombia; FARC