Conflict Resolution in Post-violence Societies: Some Guidance for the Judiciary

Abstract

The article is concerned with a worldwide phenomenon that is particularly prevalent in post-violence societies, whereby conflicts that should have been resolved in the political arena, are adjudicated by the judiciary. It offers reasons for this phenomenon and argues that when judges face this task, they tend to base their reasoning on human rights arguments. While convenient, using human rights as proxies for a more complex political analysis can undermine the quality of both the judgment and remedies provided by the court. Alternatively, when courts adjudicate political conflicts, they should rely on constitutional guiding principles. Their main advantage is that they expressly acknowledge the political and controversial nature of the conflicts at hand, thus result in a more transparent reasoning. Additionally, their more flexible nature makes constitutional principles applicable to a broader range of conflicts and can result in more appropriate remedies upon their adjudication.