. 4
( 15)


condition than they found it. More speci¬cally, they have sought to negotiate
or impose procedures for creating order within the affected state, selecting a
new government, and establishing the basic political and legal limits within
which that government will operate. These new arrangements amount to
nothing less than a blueprint for the political reconstruction of the affected
From a rule of law standpoint, the blueprints re¬‚ect the proposed macro-
political and legal underpinnings of a new or transformed state; they
represent an attempt to design a new political and legal order within which
other elements of a rule of law system, such as police and courts, must oper-
ate. Blueprints lay out the critical steps interveners and their local partners
expect to take to move a state from the shock of military intervention to
self-government under the rule of law. Typically, they include provisions for
maintaining security, forming an interim government, conducting elections
to choose a new government, and in many cases, drafting the constitution
under which that government will operate. In some cases, the blueprint may
take the form of a more or less coherent political package. The Dayton
Accords, for example, addressed the military aspects of the post-con¬‚ict
period, boundary issues, elections, policing, and human rights and included
a new constitution designed to share power among Bosnia™s contending
communities. In most cases, however, the blueprint emerges only gradu-
ally and from some combination of different sources, including agreements
among warring parties, UN Security Council resolutions, transitional gov-
ernment arrangements, and new constitutions. Moreover, blueprints con-
stantly evolve, as conditions within the affected state change.
Blueprints also vary widely from country to country. Everyone acknowl-
edges that political reconstruction cannot proceed on a “one size ¬ts all”

basis. At the same time, there are common features among blueprints, some
speci¬c to the nature of the problems that give rise to intervention; others
dictated by preexisting international norms. The approach taken in any given
case depends on the circumstances of the country at issue and the identity,
resources, and commitment of both interveners and local actors.
In most of the cases considered in this volume, military intervention has
followed, and been triggered by, internal con¬‚icts that broadly described fall
into one of two categories: (1) disputes over control of state resources and
political power in states characterized by extremely weak state institutions
and central authority, as in Liberia and Sierra Leone, and (2) disputes over
national identity in which two or more distinct ethnic groups ¬ght over ter-
ritory or governance issues, as in Bosnia, Kosovo, and Rwanda. Of course,
the distinction is in many respects arti¬cial. Con¬‚icts that center on control
of state resources often also involve ethnic divisions, and ethnic con¬‚icts
(the term itself is contested) can be characterized as struggles over resources
and power. Thus, there is often considerable overlap between the categories.
Rwanda had both high levels of interethnic con¬‚ict and weak state insti-
tutions; Liberia had an ethnic overlay to what was principally a struggle
over resources and power. Nonetheless, the differences in the nature of these
con¬‚icts are both real and important.
In two recent cases, Afghanistan and Iraq, the political and security inter-
ests of the interveners prompted intervention even in the absence of large-
scale internal con¬‚ict. Yet even in these two cases, weak state institutions and
ethnic and sectarian divisions have shaped the blueprints adopted in ways
that raise many of the same issues as the other cases considered.
In general, con¬‚icts driven by weak state institutions and disputes over
resources and political power may be more amenable to resolution through
externally driven political arrangements than con¬‚icts that center on national
identity. For con¬‚icts in the former category, interveners have commonly
pushed a fairly standard settlement blueprint. That blueprint consists of
cease-¬res, demobilization of combatants, and the establishment of a tran-
sitional government, all in support of internationally monitored elections
leading to the formation of a new government. This approach to settlement
presumes that the antecedent civil strife represents only a temporary break
in the unity of the political community of the state, which can be overcome
by the legitimacy that will attach to any popularly elected government.
For con¬‚icts that center on national identity, interveners usually follow a
blueprint that is similar in some respects but different in others from the one
just described. As in ordinary civil con¬‚icts, interveners may urge the parties
to accept cease-¬res and demobilization of combatants as a preliminary step
to a political resolution. But such con¬‚icts are seldom amenable to resolution
through majoritarian electoral politics. In countries torn by con¬‚ict over
national identity, voting resembles census-taking, and numerically weaker

groups will not be satis¬ed by any solution predicated simply on majority
rule. Indeed, it is precisely the prospect of majority rule that has touched off
con¬‚ict in places such as Bosnia and Kosovo. In such cases, interveners and
local actors may be forced to pursue more complicated political bargains,
designed to share (or divide) power among the competing ethnic groups.
Tinkering with existing constitutions and laws will not suf¬ce; instead, post-
con¬‚ict blueprints usually entail the drafting of a whole new set of governing
arrangements, which may be embodied in a new constitution designed to
share power among the state™s principal ethnic or sectarian groups.
The alternatives to sharing power as a solution to identity-based con¬‚icts
are limited. They consist principally of the separation of the contending
parties by granting partial or total independence to one group, as in East
Timor, or the outright victory of one party over another, with the consequent
vesting of political power in the victor, as in Rwanda. In such cases, power-
sharing largely disappears as an issue for both internal and external actors.
Efforts may be made to offer minorities legal protections short of power-
sharing, but the focus, at least for external actors, shifts to many of the same
issues faced in connection with states emerging from more conventional
con¬‚icts over resources and power, in particular, how to build viable state
institutions that will govern in accordance with international standards and
the rule of law.
In general, blueprints premised on majoritarian electoral politics seem to
be both easier to design and more likely to endure than blueprints based
on intercommunal power sharing. Electoral settlements have worked toler-
ably well in ideologically divided countries such as Cambodia, El Salvador,
Nicaragua, and Mozambique, though they have so far generated only mixed
results in the resource-driven con¬‚icts of Liberia and Sierra Leone. But even
in those latter con¬‚icts, the issues up for debate, for example, disarmament,
control of the interim government, and the timing of elections, are compar-
atively straightforward.
By contrast, attempts to promote enduring settlements to identity-based
con¬‚icts seem less promising. In con¬‚icts of this sort, it is not simply a ques-
tion of building institutional capacity and holding elections to determine the
will of the population as a whole. Instead, interveners have to consider in
addition intractable and divisive questions pertaining to control over ter-
ritory, the extent of local autonomy, the scope of minority veto powers,
the extent of minority participation in national political organs, and simi-
lar issues. Even when agreements on such issues can be reached, political
arrangements predicated on intercommunal power sharing are often com-
plicated and unstable.
In both kinds of cases, the process by which a blueprint is reached may
prove as important as the blueprint itself, especially when a new constitu-
tion plays a central role in the blueprint. A broadly inclusive process may

help transcend internal differences and forge a new national consensus. By
contrast, a poorly conceived process that leaves important actors feeling
marginalized or fails to foster a sense of local ownership will exacerbate
existing tensions. The dif¬culties in devising workable blueprints are dis-
cussed below; the dif¬culties in building upon the rule of law aspects of
those blueprints are considered in subsequent chapters.


The creation of post-intervention blueprints entails a complicated process
involving a mixture of coercion, bargaining, and concessions among a host
of parties, including interveners, warring factions, civil society, and neigh-
boring states. This process unfolds over time and evolves as the interests and
even the identities of the parties change. Part A below discusses a series of
problems “ the pitfalls of bargaining, the short time horizons of interveners,
the periodic divergence between international standards and local prefer-
ences, and the inevitable emergence of spoilers “ inherent in post-con¬‚ict
blueprint processes. Part B considers some of the problems speci¬c to the
drafting of post-con¬‚ict constitutions.

A. Problems Common to Post-Con¬‚ict Blueprints
The drafters of the various agreements and other instruments constituting
blueprints for post-con¬‚ict state-building may ¬nd guidance in general prin-
ciples re¬‚ecting minimum international standards. But these principles (for
example, respect for minority rights, free elections, accountability), on which
agreement usually exists only at a high level of generality, must be opera-
tionalized in the context of an ongoing con¬‚ict with its own history, condi-
tions, and characteristics. And they must be operationalized in a way that
secures a minimum level of acceptance among the various and often shifting
parties with the power to thwart or seriously obstruct the process, and under
severe time constraints.
In general, interveners lack the will, the expertise, and the power sim-
ply to impose some preconceived “ideal” blueprint. And even if they could
design and impose such a blueprint, its imposition would lack local legiti-
macy and undercut the most basic principles of the rule of law. Accordingly,
interveners must strive to achieve a set of locally acceptable political arrange-
ments that will meet international standards. This entails a complex process
of identifying and bargaining with key local actors. What emerges from
this bargaining process necessarily falls far short of anyone™s ideal, coherent
design;1 instead, it represents what could be cobbled together under very
1 Donald Horowitz makes this point in connection with the process of constitutional design
and efforts to import constitutional expertise through comparative analysis. He notes that

dif¬cult circumstances and in response to widely varying, fast-changing, and
often con¬‚icting interests.
Unfortunately, bargaining tends to produce agreements with provisions
that run at cross-purposes or provisions that gloss over (for later solution)
critical differences among the parties. This problem is exacerbated by the
short time horizons and limited strategic interests of the typical interveners.
Under pressure to end the ¬ghting, and to minimize their own post-con¬‚ict
involvement, interveners often support blueprints that satisfy the immediate
minimum demands of the contending parties, but in so doing undercut future
efforts at transcending the issues dividing those parties. At the same time,
internal actors, recognizing the short-term nature of the interveners™ commit-
ments, constantly work to modify blueprints in their favor and to position
themselves to take power on the interveners™ eventual departure. The devel-
opment of workable blueprints is further handicapped by the interveners™
often tenuous knowledge of local history, actors, and cultural conditions
and by the limited resources that interveners are prepared to devote to sta-
bilizing and then rebuilding war-torn societies.
The pitfalls of bargaining are readily apparent, particularly in con¬‚icts
that turn on issues of ethnic and national identity. In Bosnia, for example,
interveners™ overriding imperative in 1995 was to stop the ¬ghting. When
the Dayton Accords were negotiated, each of the three principal commu-
nities in Bosnia retained its own army and its own external backers. The
Dayton Accords re¬‚ected this balance of power and represented a com-
promise between the interests of Muslims in building a unitary state with
strong central authority and the interest of Croats and especially Serbs in
ensuring strong regional autonomy and a weak central government. The net
result was an agreement at war with itself. Provisions designed to protect the
interests of Croats and Serbs divided the state along ethnic lines, rendered
the central government prone to gridlock, and undercut efforts to achieve a
state governed by the rule of law. Interveners could easily have designed a
more workable constitution. Indeed, in late 2005, the United States among
others began to urge Bosnia™s political leadership to amend the Dayton
constitution in fundamental ways. But in 1995, interveners were unwill-
ing to pay the price that would have been required to impose a more viable
The reluctance of interveners to take the steps necessary to create (and
implement) viable post-con¬‚ict blueprints is readily understandable. Inter-
veners ¬nd it hard to mobilize political support for military intervention until

in most cases, among other things “[t]he sheer proliferation of participants makes it less,
rather than more, likely that a design, with its consistent and interlocking parts, will be
produced at the outset and adopted at the conclusion.” Donald Horowitz, Constitutional
Design: Proposals Versus Processes, in The Architecture of Democracy: Constitutional
Design, Con¬‚ict Management, and Democracy (A. Reynolds, ed., 2002), at 15, 16.

a crisis is obvious, usually long after the point at which a relatively modest
intervention might have proven effective. When intervention ¬nally occurs,
interveners (particularly those from western states sensitive to public opin-
ion) seek to minimize their costs by keeping force sizes, casualties, and time
in country to a minimum. As a result, interveners are reluctant to confront
powerful and entrenched local forces. In the short run, it is far less costly to
accommodate and to the extent possible work with such forces. Although
this approach has important advantages “ coercion may undermine local
acceptance of the proposed blueprint and even generate violent resistance “
the approach also has substantial costs. In particular, it tends to generate
a least-common-denominator attitude to blueprint creation and implemen-
tation. It is far easier to take a minimalist approach to demobilization and
disarmament, for example, than to pay the price required to ensure that the
various warring factions actually encamp and disarm. But attempts to super-
impose democratic institutions on countries where the government not only
lacks a monopoly on the exercise of coercive power but also is often out-
gunned by private armies opens the door to continued civil war, as in Liberia
and Sierra Leone; the ascendance of regional warlords, as in Afghanistan;
and the interpenetration of organized paramilitary criminal networks and
government, as in Bosnia and Kosovo.
To make matters still more challenging, interveners when designing blue-
prints must ¬nd ways to reconcile international standards and the inter-
veners™ own cultural predispositions with local beliefs and cultural norms.
In some cases, the two may not match. For example, as we discuss later in
this chapter, the constitution in post-con¬‚ict Afghanistan privileges Islam
in ways that may end up limiting religious freedom and women™s rights in
signi¬cant ways, even though international human rights norms prohibit
discrimination on the basis of religion and gender. Interveners who seek
to impose international standards in such contexts risk undermining their
own efforts to demonstrate that governance should not be arbitrary or
unresponsive and may jeopardize local acceptance of the overall blueprint.
But interveners who accept institutions and laws that discriminate violate
some of the substantive precepts of their own international rule of law
reconstruction model. In short, interveners and local actors may disagree
on what is best for the country™s political future. Autocratic imposition of
interveners™ preferences, although often tempting for ef¬ciency, security, and
other reasons and sometimes necessary to meet international standards, may
impede the achievement of other blueprint goals. Successful blueprints thus
require interveners and their local allies to strike a careful balance between
the ideal and the feasible, and the ¬‚exibility to evolve over time as new norms
take root.
Creating blueprints requires prioritizing some actors™ interests over oth-
ers, creating winners and losers in the post-con¬‚ict reconstruction process.

Parties who conclude they can gain more from obstruction will ¬nd ways
to do so. Interveners will therefore constantly be forced to police all aspects
of the creation and implementation of the blueprint. In many cases this will
require coercion, the natural follow-on to most instances of military inter-
vention. Coercion is often necessary to maintain security, particularly when
spoilers use violence to disrupt reconstruction efforts, but it undercuts a cen-
tral premise of all blueprints, that the affected population must be free to
determine its own political future. Of course, the interests of all parties, and
consequently perceptions of advantage and disadvantage, will shift over time
as local conditions change. Blueprints should therefore not be seen as ¬xed
instruments but rather as ¬‚exible guidelines subject to amendment, evolu-
tion, and reinterpretation as circumstances dictate. Although it may seem
counterintuitive, such ¬‚exibility is particularly important in the process of
shaping a new constitutional order. As discussed below, it is generally best
if that new order begins with interim principles and evolves over time.

B. The Process of Constitutional Design
Process problems are particularly acute, and particularly important, when
it comes to designing a new constitution. Constitutions are founding docu-
ments, intended in theory to embody a national consensus on the basic prin-
ciples and institutions of governance. At their core, constitutions are about
the allocation of power, rights, and responsibilities among members of a
national political community. Constitutions provide the rules of the game;
they specify how power is to be exercised, by whom, and within what limits;
they specify how laws are to be adopted and how disagreements within the
public sphere are to be managed and resolved. In the post-con¬‚ict context,
constitutions often address directly some or all of the key issues that gave
rise to the con¬‚ict, through provisions aimed at managing ethnic, sectarian,
regional, and other differences or placing checks on the exercise of central
government power.
But constitutions are not only about the allocation of power, the design of
governance institutions, or the management of con¬‚ict. They are also about
re¬‚ecting and fostering a shared sense of political community and national
identity among a state™s citizens. In this sense, a well-designed constitution
literally helps constitute the body politic and in so doing renders possible
good governance and the rule of law, which ultimately depend on a social
consensus on the legitimacy of governing institutions and rules.
But however well designed a constitution may be, if the process by which
it is drafted and adopted is not equally well designed and managed, the
constitution may lack the popular support necessary for it to prove effec-
tive. Indeed, the central insight of a recent study sponsored by the United
Nations Development Programme (UNDP) and the United States Institute
of Peace (USIP), based on case studies of constitution formation in nineteen

post-con¬‚ict societies since the early 1970s, is that process matters.2 What in
the abstract may appear the perfect division of powers and responsibilities,
or the ideal institutional balance among competing ethnic or sectarian inter-
ests, may be worth little more than the paper it appears on if the body politic
to which the constitution is addressed rejects it as the product of foreign
intervention or exclusionary politics. Worse, a badly conceived or imple-
mented process may actually aggravate the divisions the new constitution is
intended to overcome.
The margin for error available to today™s post-con¬‚ict constitution
drafters depends in large part on the nature and extent of divisions within the
state. In some cases, such as Iraq, deep ethnic, sectarian, and other divisions
will render the process of drafting a constitution extremely sensitive. In other
cases, such as East Timor, a broad social consensus may already exist on the
identity and basic political parameters of the state. In such cases, problems
with constitutional process (and substance) will matter far less, at least in the
near term. We discuss below some common process issues in post-con¬‚ict
constitution making and pitfalls encountered in several recent cases.

1. Pursuing a Phased Constitutional Process
In some cases, constitutional bargains emerge as part of the peace process,
sometimes as the product of a deal struck in haste by a small set of internal
and external actors. Bosnia offers an extreme example. The current Bosnian
Constitution was drafted in haste by lawyers in the U.S. Department of State
and presented to the warring parties, in English, as Annex 4 to the Dayton
Agreement. The negotiations at Dayton largely excluded the Bosnian Serbs,
who were only nominally represented by the Federal Republic of Yugoslavia.
Not surprisingly, the resulting constitution commanded little legitimacy and
less support in the Republika Srpska.
In most recent cases, however, much greater attention has been paid to
constitutional process in general and to issues of inclusion and exclusion
in particular. The UNDP and USIP study of constitution formation outlines
a phased constitution-making process that, with country-speci¬c variation,
has been employed with varying degrees of success by different post-con¬‚ict
societies since the early 1970s. In general, the most successful instances of
constitution-making “ South Africa is the most widely cited model in this
regard “ begin with agreement on a “set of rules to govern the process”
itself. This set of procedural ground rules “facilitates greater transparency
and public credibility,” because all parties know what to expect and can
plan their own role accordingly.3 Such agreements on procedure are usually
2 USIP Special Report, Iraq™s Constitutional Process: Shaping a Vision for the Country™s
Future, February 2005, at 2 (hereinafter Iraq™s Constitutional Process); see also Jamal
Benomar, Constitution-Making after Con¬‚ict: Lessons for Iraq, 15 J. Democracy 81, 82
3 Iraq™s Constitutional Process, supra note 2, at 3.

accompanied by agreements on “a set of fundamental principles to guide
the nation during the constitutional process and to be enshrined in the new
constitution.”4 South Africa, for example, adopted an interim constitution
that set out the rules by which a permanent constitution would be drafted and
adopted, provided for the operation of an interim Government of National
Unity, and speci¬ed fundamental constitutional principles that would be
included in the ¬nal constitution.
To ensure some measure of public participation and democratic legiti-
macy, many transitional states utilize an elected constituent assembly or com-
parable body to develop, review, and approve a draft permanent constitution.
Because large assemblies cannot easily debate constitutional niceties, many
states utilize subcommittees or bodies of experts to develop constitutional
drafts for subsequent discussion in the larger constituent assembly or parlia-
ment. Constitutional commissions and similar bodies can play critical roles
in vetting proposals, soliciting input from diverse segments of society, and
providing technical expertise (often with the help of international experts)
that elected bodies may lack. If constitutional commissions are broadly rep-
resentative of the country™s major political groupings and encourage wide
public participation in their work, the legitimacy of the eventual draft will
be greatly enhanced. Indeed, the members of such commissions may shift
over time “from serving primarily as advocates for their respective interest
group into a more cohesive group with a greater focus on the needs of the
whole society.”5
The draft constitution that ultimately emerges from such a process may
either be adopted by the constituent assembly or parliament, if those bodies
are deemed adequately representative of the larger political community, or
it may be subject to ¬nal approval in a national referendum. In either case,
contemporary constitution making generally involves substantial efforts to
generate broad public participation in the constitutional process, both to
solicit suggestions on important constitutional issues and to generate public
support for the new constitution and the institutions it establishes. Increas-
ingly, post-con¬‚ict constitution making involves civic education campaigns,
public dialogues, media outreach, and similar mechanisms.
The phased approach described above, when done well, can provide
an orderly structure for immediate post-con¬‚ict governance and relieve
some of the high-stakes pressure often felt by participants in constitutional
negotiations. By specifying some constitutional principles at the outset while
still leaving room for negotiation on others, the parties to the constitutional

4 Id.
5 Neil Kritz, Constitution-Making Process: Lessons for Iraq, Testimony before a joint hearing
of the Senate Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights,
and Property Rights; and the Senate Committee on Foreign Relations, Subcommittee on
Near Eastern and South Asian Affairs, June 25, 2003, available at http://www.usip.org/
aboutus/congress/testimony/2003/0625 kritz.html (last accessed January 26, 2006).

bargain can reach agreement on key issues without feeling that everything
must be resolved at once and with ¬nality.
A phased process also creates room for balanced participation by polit-
ical elites and society at large. Although broad public participation is now
viewed by many experts as a key to achieving a sense of local ownership of
post-con¬‚ict constitutions, the bene¬ts of participation will depend on who
participates and when and how they participate. As Carolyn McCool points
out, “[t]he principle of inclusion is a guide, but is by itself of no particular
merit.”6 Cultural, political, and resource constraints must all be factored
into determining how inclusive the constitutional process should be at any
given moment. Trying to accommodate too many participants with widely
divergent goals “can produce an agreement that contains no common vision
of the state™s future, or a short-term accord that serves elites at the expense of
strong democratic institutions. . . .”7 Moreover, excluding potential spoilers
may sometimes be essential to maintaining the integrity of the constitution-
making process.
In many cases, interveners may also conclude that the exclusion or
marginalization of some actors is essential to achieving interveners™ own
goals in the post-con¬‚ict period. In Iraq, for example, the United States
sought to limit the involvement of groups closely allied to Iran, fearing that
their participation might further polarize religious politics in Iraq and even
lead to the formation of a quasi-theocratic government hostile to U.S. inter-
ests.8 Such efforts may easily back¬re, however, if the local populace sees
them as evidence of undue foreign interference. The U.S. efforts to disem-
power Iraqi cleric Moqtada al-Sadr, for example, seem only to have enhanced
his local stature.
Timing is usually a crucial determinant in decisions about participation. In
the immediate aftermath of con¬‚ict, powerful political factions (typically the
principal warring parties, though sometimes only the victorious warring par-
ties) will often seek to dominate the constitution-making process. If allowed
to do so, the constitution will “simply re¬‚ect[] division of the spoils between
such factions.”9 However, political elites and powerful political factions nec-
essarily must play a prominent role in the post-con¬‚ict constitution-making
process, unless interveners are prepared to impose their own preferred model,
which is both impractical and unwise. Thus interveners face something of
a dilemma: excluding or marginalizing powerful local actors may create

6 Carolyn McCool, The Role of Constitution-Building Processes in Democratization, Inter-
national IDEA, at 4 (2004).
7 Benomar, supra note 2, at 84.
8 See Seymour Hersch, Get Out The Vote: Did Washington Try to Manipulate Iraq™s
Election?, The New Yorker, July 25, 2005, available at http://www.newyorker.com/fact/
content/articles/050725fa fact.
9 Kritz, supra note 5.

spoilers, but excessive deference to such actors may permit them to hijack
the constitutional process for self-interested ends. The trick is to strike the
right balance between these two approaches and to do so in a dynamic and
adaptive way that is ¬‚exible enough to accommodate shifts in local power
By permitting political elites to play a major but not an exclusive role
in the early phases of constitutional process, it may be possible to reach
critical near-term compromises on the allocation of power, for example, on
the composition of an interim government, while still allowing time for the
emergence and participation of more broadly based political parties and civil
society groups. Moreover, critical compromises may be easier to reach early
and in private, among political elites who may have incentives to compro-
mise but feel they are unable to do so in a more public process. In South
Africa, for example, the government and African National Congress repre-
sentatives reached agreement in closed discussions on interim constitutional
principles; the process was only opened to broad public participation after
critical compromises had been made by both sides.
At some point, however, the process must be opened to broader public
participation to generate the wide political support essential for a durable
new constitutional order. As the UNDP“USIP study has found, “[i]n the past
few decades, those cases in which the entire constitution-making process
remained secretive and closed have permitted deal making among elites but
have not typically produced either the most vibrant of constitutional democ-
racies or the most stable governments over the long term.”10 Good-faith
efforts at civic education, broad public dialogue, and widespread consulta-
tion may generate helpful input into the drafting process, build public sup-
port for the constitution, and foster a culture in which contending groups
come to see dialogue and compromise as the appropriate means for resolving
political differences.

2. The Pitfalls of Poorly Managed Constitutional Process
Every post-con¬‚ict constitution-making process is different and must fol-
low to some extent the dictates of local conditions. Nonetheless, it is pos-
sible to learn across cases and to identify both strengths and weaknesses in
recent constitution-formation processes that may provide useful lessons for
the future.
Perhaps the most common problem has been haste. Interveners under-
standably wish to exit post-con¬‚ict states as early as possible and may see
the adoption of a new constitution, followed by elections for a new govern-
ment chosen under that constitution, as the key to the door home. More-
over, interveners may ¬nd it necessary to demonstrate progress to their home
10 Iraq™s Constitutional Process, supra note 2, at 6.

audiences by setting and reaching milestones in the constitutional process.
The local political elites working with interveners may possess short-term
advantages arising out of their role in the con¬‚ict that lead them to press
hard for a quick adoption of a constitution and an early election, while
their advantages remain intact. Yet it takes a substantial amount of time
to conduct a well managed constitution-drafting process. In South Africa,
depending on the date one chooses to mark as the beginning of the process,
it took ¬ve to seven years to move from early negotiations to agreement on
interim principles to a ¬nal constitution.
When the process is rushed, the constitution that emerges is likely to re¬‚ect
elite interests at the expense of the larger public interest and may lack the
popular legitimacy needed to survive the inevitable vicissitudes of the early
post-con¬‚ict period. The 1995 Bosnian constitution is the clearest example.
Drafted in haste, it represented an imposed inter-elite settlement; little effort
was made to engage the wider Bosnian public. But the Bosnian constitution
was probably never intended to endure as a permanent constitution. Instead,
it was adopted purely as a con¬‚ict-termination device, and discussions are
now underway about how to modify it in ways that will permit Bosnia to
function effectively as a modern European state.
In Iraq, the constitutional process proceeded by ¬ts and starts, as the
United States and its allies surrendered more and more control over the pro-
cess to Iraqi political elites. Although the United States originally thought
it could install a transitional military authority, supervise the drafting and
adoption of a democratic constitution, hold elections, and depart, the reality
turned out to be far more complex and far more dif¬cult to manage. Eventu-
ally, the United States yielded to demands from within Iraq for a quick trans-
fer of sovereignty and worked with the United Nations and others to broker
a fast and, to many, rigid timetable for the formation of a constitution and
the election of a new government. When constitutional negotiations between
Iraq™s three main sectarian factions bogged down because of Sunni concerns
over process and substance, the United States, eager to show progress to its
critics at home, insisted on strict adherence to the timetable, even though
the agreement governing the process permitted a six-month extension. Iraqi
Shiites and Kurds, eager to move forward with a constitution that favored
their interests, also rejected an extension. Partly as a result, the constitution,
adopted over substantial Sunni opposition, did not represent a national con-
sensus on Iraq™s future and may do more to exacerbate intergroup con¬‚ict
than to ameliorate it.
Typically, the feature of constitutional process most likely to be short-
changed is that of public participation. In East Timor, for example, the
national assembly “had a mere ninety days to deliberate on a constitu-
tion,” and despite civil society and UN efforts to educate the population
and to foster public participation, “the assembly ignored these efforts and

the public showed little awareness of the constitutional draft.”11 Similarly, in
Afghanistan, despite substantial efforts to solicit the views and involvement
of a broad cross-section of society, the time and resources available were sim-
ply not suf¬cient to reach effectively a “vast home-bound and village-bound
population. . . .”12
Of course, even if adequate time is allotted to each phase of a post-con¬‚ict
constitutional process, much can still go wrong. The greatest threat is that
the constitutional process will be dominated by one or two parties to the
detriment of other segments of the post-con¬‚ict society. In East Timor, for
example, Fretilin™s dominant role in the process risked placing the country
on the path to a one-party state. In Afghanistan, the dominance of the early
phases of the constitutional process by parties af¬liated with the victori-
ous Northern Alliance shaped the substance of the constitution, centralizing
power in the hands of President Karzai and his allies.
Problems of process tend to be particularly acute in countries divided
along ethnic or sectarian lines. The more politics comes to be viewed as a
zero-sum game, the more dif¬cult it is for politically weaker groups to feel,
and to be, fairly included in discussions over the future allocation of political
power. In Iraq, most Sunnis boycotted the elections establishing the National
Assembly; as a result, when the constitutional commission was formed, it
included only two Sunnis among its ¬fty-¬ve members. Under pressure from
the United States, the United Nations, and others, Shiites and Kurds grudg-
ingly invited an additional ¬fteen Sunnis into the drafting process, but many
Shiites and Kurds considered the Sunnis obstructionist and largely excluded
Sunnis from much of the substantive discussions.13 To make matters worse,
the Shiite and Kurd dominated government made a last-minute change to
the rules governing the constitutional referendum in an effort to ensure that
disgruntled Sunnis could not block adoption of the proposed constitution.
Although the rule change was revoked following heavy international crit-
icism, the tactic, and the drafting process as a whole, helped con¬rm for
many Sunnis their fear that they would face political marginalization in the
majoritarian-rule system contemplated by the new constitution. Not surpris-
ingly, Sunnis overwhelmingly voted no in the referendum, and although they
could not defeat the adoption of the constitution, it is plain that the con-
stitutional process in Iraq did more to hinder than to help foster national
In light of the many challenges interveners face in designing post-con¬‚ict
blueprints, it should come as no surprise that instances in which a blueprint
has been successfully implemented are few. Indeed, the only unambiguous
11 Benomar, supra note 2, at 90.
12 McCool, supra note 6, at 14.
13 See David L. Phillips, Constitution Process Risks a Civil War, Newsday, August 26, 2005,
at A45.

successes date from World War II, when the United States, Britain, and France
helped transform Germany, and the United States helped transform Japan,
into liberal democratic states with western-style constitutions and strong rule
of law cultures. Some recent attempts to design and implement blueprints for
post-con¬‚ict reconstruction have clearly failed, as in Somalia and the early
efforts in Liberia and Sierra Leone; others are ongoing but clearly troubled,
as in Afghanistan and Iraq; still others show substantial progress but are by
no means out of the woods, as in Bosnia and Kosovo. East Timor is perhaps
the most successful recent example, but its achievement of independence
makes it a special case, and violence in May 2006 called into question the
stability of the post-independence order.
We should be wary, however, about drawing ¬rm conclusions from a small
number of cases. Interveners have clearly learned (though not as much as
might be hoped) from past experiences, and future blueprints will be designed
with that experience in mind. Moreover, we should not let the best become
the enemy of the good. Considerable progress toward democracy and the
rule of law has been made in places such as East Timor, Bosnia, Kosovo, and
Sierra Leone. Even if the full transformation envisioned in the blueprints for
those states is never achieved, they are better off for the efforts that have
been made.


In most of the cases considered in this volume, external intervention
has occurred in states with national institutions too weak to maintain
internal order. In such cases, interveners have typically opted for a relatively
simple blueprint: separate, disarm, and demobilize the combatants; form a
transitional government; and then hold elections to form a new government.
The problem with this approach is that elections serve a country well only
when functioning democratic institutions and a larger rule of law culture are
already in place or at least being put into place. Otherwise, elections conse-
crate a winner, with more or less credibility depending on the circumstances
surrounding the election at issue, but do not necessarily lead to good gov-
ernance or dissuade the losers from continuing to seek power by whatever
means are available. Simply put, elections by themselves will not overcome
state failure and should not be seen in the abstract as a viable exit strategy.
The cases of Liberia and East Timor represent ends of a spectrum. In
Liberia, elections were held in 1997 even in the absence of substantial efforts
to build institutional capacity and respect for the rule of law. The results were
disastrous. In East Timor, elections followed substantial efforts at capacity
building and rule of law promotion. The results, though far from ideal, are
generally positive. Although the difference in approach explains only part of

the difference in outcome, it does illustrate the critical importance of laying
adequate groundwork for an electoral solution.

A. Liberia: Failing Elections
With the backing of Burkina Faso and Cote d™Ivoire, Charles Taylor invaded
Liberia on December 24, 1989, with approximately 150 men. Taylor™s insur-
gency spread rapidly. By early June, half of the country™s 2.6 million people
were displaced; thousands had been killed. When rebel forces, including
both Taylor™s National Patriotic Front of Liberia (NPFL) and a rival, splin-
ter force, reached Monrovia, Liberia™s neighbors decided to intervene. On
August 23, 1990, armed forces from Nigeria, Ghana, Guinea, Gambia, and
Sierra Leone, operating as the Economic Community of West African States
Monitoring Group (ECOMOG), deployed to Monrovia to stop the ¬ghting
and to deny Taylor his victory.
The ECOWAS blueprint for resolving the Liberian crisis was straight-
forward: establish a cease-¬re; inaugurate an interim government chosen
through an inclusive consultative process; and conduct free and fair elec-
tions to establish a new and generally accepted government. But ECOWAS
was never prepared to take the steps necessary to render an electoral exit
strategy viable. To establish a stable democratic government in Liberia, one
committed to the rule of law, would have been an enormously challeng-
ing task. State institutions in Liberia collapsed entirely during the course of
Taylor™s insurrection. At a minimum, ECOMOG would have had to defeat
Taylor militarily to pave the way for a successful interim administration. In
addition, it would have been necessary to help create viable state institutions
that could form the foundation on which an elected government could build.
More broadly, ECOWAS would have had to transform Liberian political cul-
ture through civic education and measures to revitalize civil society. Even a
united ECOWAS, with strong support from the United Nations, would have
found so broad a mission daunting. But a divided ECOWAS, which received
only modest assistance in the form of UN sanctions directed against Taylor
and the NPFL, could not pursue so ambitious a policy.
With an appropriate mandate, ECOMOG might at the outset have
overwhelmed and defeated Taylor™s forces. Instead, ECOMOG sought a
negotiated cease-¬re. ECOMOG abandoned its posture of neutrality and
drove Taylor™s troops from Monrovia only after attacks by NPFL forces
on ECOMOG troops. But instead of pursuing Taylor, ECOMOG con-
tented itself with securing Monrovia, leaving Taylor in control of the rest
of Liberia.14
14 For discussion of the early years of ECOWAS involvement in the Liberian con¬‚ict, see
David Wippman, Enforcing the Peace: ECOWAS and the Liberian Civil War, in Enforcing
Restraint: Collective Intervention in Internal Con¬‚icts (Lori F. Damrosch, ed., 1993),
at 157.

On August 27, 1990, ECOWAS convened an “All Liberia Conference”
of seventeen Liberian political parties and interest groups. The conference
selected an interim government and entrusted it with the task of promoting
national reconciliation and holding new elections. But the new Interim Gov-
ernment of National Unity (IGNU) had no army and few material resources.
Its writ did not extend beyond Monrovia, and it remained wholly dependent
on ECOMOG for its continued existence.
Taylor refused to acknowledge IGNU™s legitimacy and established his own
government in his own capital city of Gbargna. From the outset, Taylor
worked to strip Liberia of its minerals, timber, and other assets and sup-
ported dissident forces seeking to overthrow the governments of neighbor-
ing countries. After years of sporadic warfare and numerous broken cease-
¬re agreements, ECOWAS reached an accommodation with Taylor in the
1995 and 1996 Abuja agreements, which called for internationally moni-
tored elections to determine Liberia™s future government. In 1997, Taylor
was elected President by an 83 percent majority. Although the elections took
place “in an atmosphere of intimidation,” international monitors judged
them free and fair.15 But Liberians seem to have voted for Taylor primar-
ily because he “had openly threatened to return the country to war if not
Taylor ruled through “intimidation, patronage, and corruption,” running
the country “as a personal ¬efdom.”17 Taylor and his cronies grew rich in a
country in which 80 percent of the population lived on less than a dollar a day
and that has not had running water or electricity for more than a decade.18
The political opposition was unable to unify behind a single candidate, and
Taylor succeeded in buying off or coopting many opposition politicians.
Unfortunately, Taylor™s kleptocracy was not entirely an anomaly. It pros-
pered in substantial part because of a pathological political culture in a
country that has never known democracy or responsible government. Pol-
itics in Liberia is “intensely personalized and mercenary”; it is “organized
not around issues, causes, or agendas, but rather the elevation to power of
individual candidates, supported by networks of people who stand to per-
sonally bene¬t.”19 The opposition in Liberia could not unify because each
party leader sought of¬ce for him- or herself, most intending to exploit it for
personal gain much as Doe and Taylor did. In this context, an elections-based

15 International Crisis Group, Liberia: The Key to Ending Regional Instability, April 24, 2002,
at 13.
16 Id.
17 Id.
18 U.S. Department of State Bureau of Democracy, Human Rights, and Labor, Liberia: Country
Reports on Human Rights Practices “ 2003, February 25, 2004, available at http://www.
state.gov/g/drl/rls/hrrpt/2003/27735.htm (last accessed January 27, 2006).
19 Liberia: The Key to Ending Regional Instability, supra note 15, at 18.

exit strategy clearly could not in 1997, and cannot today, succeed without a
fundamental transformation of Liberian political institutions and culture.
Eventually, Taylor himself was driven from of¬ce by rebel forces sup-
ported by Guinea, Cote d™Ivoire, and, to a lesser extent, Sierra Leone. Various
international actors “ the UN, ECOWAS, the African Union (AU), and the
International Contact Group for Liberia (ICGL) “ then pushed the warring
forces into signing a peace agreement in August 2003. The agreement led to
the creation of a new National Transitional Government. Shortly afterwards,
the Security Council authorized the deployment of 15,000 peacekeepers with
a strong Chapter VII mandate to restore peace, disarm the warring factions,
and assist the transitional government in reestablishing national authority
throughout the country, leading to elections in late 2005.
Unfortunately, the transitional government “contain[ed] an unsavoury
mix of nominees of the warring factions, plus some of the same politicians
who [were] responsible for the country™s decline.”20 Their interest was in
securing jobs for themselves and their allies, not in governing Liberia. To
make matters worse, “each warring faction was given key public corpora-
tions and autonomous agencies, which promises to allow them to continue
old habits of siphoning off state resources.”21
By mid-2005, however, pressure from Liberian civil society activists led
to an anticorruption campaign by ECOWAS and the European Commu-
nity.22 As a result, a number of Liberian ministers and of¬cials have found
themselves accused of malfeasance and subject to investigation.23 In addi-
tion, donors imposed a Governance and Economic Management Assistance
Program (GEMAP), requiring Liberia to take certain legal and administra-
tive steps to “improve ¬nancial and ¬scal administration, transparency and
accountability” as conditions for aid.24
On October 11, 2005, Liberians turned out en masse to vote in presidential
and congressional elections, electing Ellen Johnson-Sirleaf, the ¬rst woman
head of state in Africa.25 By all accounts, these elections were generally
free and fair. Nonetheless, after decades of war and state decay, daunting
problems remain: “[p]etty corruption manifests itself at the most ordinary
level in Liberia.”26 Ex-combatants and their business associates continue to
strip Liberia of its minerals, timber, and other natural resources, security

20 International Crisis Group, Liberia: Security Challenges, November 3, 2003, at 2.
21 Id., at 3.
22 International Crisis Group, Liberia™s Elections: Necessary but Not Suf¬cient, September 7,
2005, at 2.
23 Id., at 2.
24 See GEMAP, at 2, available at http://siteresources.worldbank.org/LIBERIAEXTN/
Resources/GEMAP.pdf (last accessed January 27, 2006).
25 Polgreen, Lydia, In First for Africa, Woman Wins Election as President of Liberia, The New
York Times, November 12, 2005.
26 Liberia™s Elections, supra note 22, at 15.

sector reform has failed to weed out human rights abusers, Liberia™s culture
of impunity remains strong,27 and state institutions remain extremely weak.
Thus, “[e]lections are but a small, early step in a lengthy reconstruction
In this environment, Liberia™s newly elected government is unlikely to
succeed unless interveners insist on fundamental institutional reforms, suf-
¬cient to enable the growth of issue-oriented political parties and a civil
society that is neither intimidated nor co-opted by a corrupt political leader-
ship. This would seem to require the kind of pervasive institution-building
undertaken by the United Nations Mission in Kosovo (UNMIK) and other
UN peace missions. The GEMAP, with its provisions for training of Liberian
of¬cials, anticorruption laws and procedures, and the insertion of interna-
tional experts and judges into Liberian institutions, offers a useful starting
point for the long-term work of institution-building.29 Thus far, however,
little has been done to move that work forward, and GEMAP™s more intru-
sive measures have already proven controversial among Liberians.
Moreover, it will not be suf¬cient to address Liberia™s own institutional
de¬ciencies and political culture. To succeed in Liberia, interveners and their
local partners must also deal with the regional security aspects of the prob-
lem. ECOWAS and the UN, with critical support from the United Kingdom,
have managed to stabilize Sierra Leone. French intervention has similarly
managed to stabilize Cote d™Ivoire,30 and the United States has increased its
assistance to Guinea. But all states in the region, including Burkina Faso and
its patron, Libya, must be dissuaded from continuing to use the multiple
warring factions in the region to undermine local opposition and subvert
neighboring states.
To date, the international community has shown little stomach for the
large-scale effort required to render viable its own blueprint for peace.
Despite the progress demonstrated in the recent elections and the GEMAP
agreement, Liberia remains in dire straits. Treating the recent elections as a
panacea will not only doom Liberia to a continuation of its present miseries,
but it also may well undo the progress that has been made in neighboring

27 See Global Witness, An Architecture of Instability: How the Critical Link Between Natu-
ral Resources and Con¬‚ict Remains Unbroken, December 2005, available at http://www.
28 Liberia™s Elections, supra note 22, at i.
29 Id., at 12. Speci¬cally, international experts with “co-signatory” power (co-veto power) are
to be inserted at certain state-owned corporations; procurement processes are to be revised
and the Contract and Monopolies Commission is to be strengthened; an independent Anti-
Corruption Commission is to be established; an external auditor is to work alongside the
General Auditing Of¬ce; training for judges will be introduced; and foreign judges are to
“support and advise” their Liberian colleagues. Id.
30 Liberia: Security Challenges, supra note 20, at 3.

B. East Timor and the Advantages of Independence
East Timor is a case of decolonization. The challenge in post-intervention
East Timor was not to reconcile ethnic groups with radically different views
concerning the identity and even the existence of the state. Rather, the chal-
lenge was to build effective and democratic institutions in a newly inde-
pendent country with no history of democracy and no functioning state
On October 25, 1999, the UN Security Council adopted Resolution
1272, which established the United Nations Transitional Administration in
East Timor (UNTAET). Resolution 1272 endowed UNTAET with “overall
responsibility for the administration of East Timor” and gave it the right
“to exercise all legislative and executive authority, including the administra-
tion of justice.” UNTAET™s broad mandate re¬‚ected the Security Council™s
view that comprehensive authority was needed to maintain order, rebuild
the territory™s ruined infrastructure, and establish basic institutions of gover-
nance. Local capacity to carry out such tasks was limited, given Indonesia™s
virtually total exclusion of East Timorese from government during the years
of Indonesian control. Nonetheless, Resolution 1272 instructed UNTAET
“to consult and cooperate closely with the East Timorese people in order to
carry out its mandate effectively, with a view to the development of local
democratic institutions . . . and the transfer to these institutions of its admin-
istrative and public service functions.”
Thus, in many respects UNTAET™s mission (and the blueprint for East
Timor) was similar to UNMIK™s mission in Kosovo: establish order and
democratic institutions and then transfer control to local actors chosen by
UN-conducted elections. UNTAET™s great advantage in carrying out this
mission was that all parties in East Timor agreed on the blueprint. Unlike
the UN mission in Bosnia, UNTAET did not face a state divided against
itself; unlike UNMIK, UNTAET was not impeded by an unresolved ¬nal
status. More than anything else, this consensus on objectives may account
for UNTAET™s relative success. East Timor is now independent, with a func-
tioning government.
It does not follow, though, that East Timor is an untrammeled success
story. Critics describe the UN state-building operation in East Timor as “a
series of missed opportunities and wastage.”31 Others go further and accuse
UNTAET of giving birth to a “failed state,” given East Timor™s standing as
the poorest state in Asia. The central criticism is that UNTAET™s mandate
to exercise complete legislative, executive, and judicial authority con¬‚icted
with its mandate to develop democratic institutions and transfer power to

31 Simon Chesterman, No Strategy without an Exit? Elections and Exit Strategies in East
Timor, Kosovo, and Beyond, October 2001, at 3, available at http://www.ipacademy.org/
PDF Reports/no strategy without an exit for web.pdf.

East Timorese.32 UNTAET, originally structured as a peacekeeping mission
along the lines of UNMIK, tended to centralize decision-making and focused
on building the capacity of international actors to deliver necessary ser-
vices. Doing so came at the cost of local capacity-building. East Timorese
were largely excluded from the transitional administration. As criticism of
UNTAET and its reliance on foreign staff escalated, UNTAET initiated a
process of “Timorization” in 2000, but the process was carried out with
inadequate oversight and insuf¬cient training. According to Jarat Chopra,
who served for a time as head of UNTAET™s Of¬ce of District Administra-
tion, “UNTAET™s implicit agenda bore the ominous hallmarks of a typical
UN ˜exit strategy™ by avoiding committed engagement in problem-solving;
holding a face-saving election after a reasonable period; and withdrawing
without having built adequate local capacity.”33
UNTAET did consult with Timorese political leaders, particularly through
the Timorese National Resistance Council (CNRT), an umbrella organiza-
tion of East Timorese resistance groups, and later through an unelected advi-
sory council, the National Consultative Council (NCC). Though the NCC
reviewed UNTAET regulations, the Special Representative of the Secretary-
General (SRSG) retained full authority to promulgate and implement them
on his own if necessary. And as the SRSG later acknowledged, the NCC
“came under increasing scrutiny for not being representative enough of East
Timorese society, and not transparent enough in its deliberations.”34 In the
summer of 2000, a National Council was formed to bring East Timorese into
the interim government and to confer on them several portfolios in what has
been described as “co-government,” but no powers were actually transferred
to Timorese leaders.35
In August 2001, UNTAET organized elections to select an eighty-eight-
member constituent assembly to draft a constitution and to serve as a provi-
sional legislature. But the new Assembly largely approved a draft constitution
already prepared by CNRT. Although the constitution is unremarkable in
most respects (it is based on Portuguese and Angolan models), the deference

32 See, e.g., Aurel Croissant, International Interim Governments, Democratization, and
Post-Con¬‚ict Peace-Building: Lessons from Cambodia and East Timor, 5 Strategic
Insights (2006), available at http://www.ccc.nps.navy.mil/si/2006/Jan/croissantJan06.asp
(last accessed January 27, 2006); Jarat Chopra, Building State Failure in East Timor, in
Development and Change (2002), at 979, 985.
33 Jarat Chopra, The UN™s Kingdom in East Timor, 42 Survival 31 (2000).
34 Sergio de Mello, quoted in Simon Chesterman, East Timor in Transition: From Con¬‚ict Pre-
vention to State-Building, May 2001, available at http://www.ipacademy.org/Publications/
35 Randall Garrison, The Role of Constitution-Building Processes in Democratization, Case
Study/East Timor, 2005, at 10, available at http://www.idea.int/con¬‚ict/cbp/upload/CBP-
Timor-Leste.pdf (last accessed January 27, 2006).

to the CNRT draft highlights a concern expressed by a number of UN of¬-
cials, who feared the eventual emergence of a one-party state, dominated by
Fretilin, the main party in CNRT.36
In May 2002, East Timor achieved independence, with Xanana Gusmao
as its ¬rst president. But it remains an open question whether East Timor will
function effectively as a democratic state with a workable rule of law culture.
Jarat Chopra argues that UNTAET™s centralized, top-down approach failed
to include East Timorese at more than a super¬cial level in the construc-
tion of their new state and that UNTAET therefore had only a super¬cial
impact on East Timor™s evolving political culture and institutions.37 As he
observes, “[s]uper¬ciality is the result of mandates vast in scope implemented
by missions minimal in capacity and deployments of relatively short dura-
tion, with six-month personnel contracts among a population who are there
for good.”38 The result is that local politics evolve in ways that displace the
“minimal and weak state structures left behind” by interveners.39 In East
Timor, that has meant an increasing trend toward one-party rule.
As this book was going to press in May 2006, concerns over East Timor™s
post-independence political stability increased sharply. Disgruntled former
Timorese soldiers (600 members of the 1400-strong East Timorese army were
¬red in March 2006) clashed with government forces in violence that esca-
lated rapidly. President Gusmao was forced to declare a state of emergency,
and at the government™s request, Australia, Malaysia, and New Zealand sent
over 2000 peacekeeping troops to Dili, and Portugal provided a contingent
of military police, to help the government restore order. The violence high-
lighted the inadequacy of the pre-independence capacity-building efforts,
and leave East Timor™s future an open question.
Ironically, UNTAET™s principle advantage over UNMIK and other UN
missions facing sharp internal divisions “ local agreement on the end state “
may have made the electoral exit strategy appear more likely to achieve its
aims than it actually was and therefore undermined UNTAET™s ability to
remain in place long enough to foster a broader-based democratic politi-
cal culture. Certainly, inappropriately early exits seem to plague the demo-
cratic reform model in general. In such cases, the blueprint is simpler than in
identity-based con¬‚icts but deceptively so. Because interveners do not need
to balance power among competing groups, elections are easier to organize
and easier to adopt as an exit strategy. In too many cases, that leads inter-
veners to exit before the conditions necessary for elections to succeed are put
in place.
36 See Chesterman, supra note 34.
37 Chopra, supra note 32, at 995.
38 Id.
39 Id.


In deeply divided societies such as Bosnia and Kosovo, identity politics makes
the task of blueprint design considerably more dif¬cult than in countries
torn primarily by struggles over state resources. Indeed, perhaps the sin-
gle most important variable in the development of a post-con¬‚ict recon-
struction blueprint is the cohesiveness of the state in which intervention has
taken place. When ethnic identities serve as the basis for political mobiliza-
tion and large-scale intergroup violence, the task of constructing a viable
polity becomes much more dif¬cult. In such cases, group aspirations are
incompatible and zero sum. This is most apparent on the overriding issue
of the integrity of the state itself, because some groups want to form their
own state or join with another state, whereas others insist on keeping the
existing state intact. But similar problems occur with respect to most major
issues associated with future governance arrangements, including the form
and composition of any government, the relative powers of the central gov-
ernment and local authorities, the process for electing of¬cials, the con-
trol of state resources, and protections to be afforded members of minority
In such cases, the political architects of the post-intervention order must
¬nd a way to balance competing group interests without impairing the viabil-
ity of the new state or violating international standards. As a result, interven-
ers often ¬nd that they cannot simply modernize a preexisting constitution;
instead, they must start from scratch (as in Bosnia), temporize (as in Kosovo),
or radically adapt (as in Iraq) to deal with the underlying reluctance of some
groups to remain part of the same state.

A. Blueprints for Identity-Based Con¬‚icts: From Power Sharing
to Minority Rights
The range of options in designing blueprints for deeply divided societies may
be illustrated by two cases from the former Yugoslavia: Bosnia and Kosovo.
The very different approach taken in each re¬‚ects a combination of factors,
including the demographic makeup of the state, the history of the con¬‚ict and
its outcome, the involvement of neighboring states, and the circumstances
dictating external intervention.

1. Consociationalism in Bosnia
Prior to independence, Bosnia was a “mini-Yugoslavia,” with a prewar pop-
ulation approximately 40 percent Muslim, 30 percent Serb, and 17 percent
Croat, interspersed in complicated and discontiguous patterns throughout
the country. This “ethnic m´ lange was stable so long as each ethnic com-
munity could ally with its siblings in other republics “ Bosnian Croats with

Croatia, Bosnian Serbs with Serbia.”40 But the outbreak of war solidi¬ed
ethnic identities and forced Bosnians into independence as part of a state
divided against itself.
The Dayton Agreement had a single, overriding end: termination of the
¬ghting in Bosnia. To achieve this goal, the negotiators felt compelled to
meet the minimum demands of each party while rejecting their maximal-
ist and fundamentally irreconcilable aims. The net result was an agreement
that satis¬ed no one, with multiple provisions working at cross-purposes.
The Serbs sought recognition of their proclaimed independence and a future
right to merge with Serbia, which could not be granted without legitimizing
ethnic cleansing and rejecting Bosnian Muslims™ demands for a unitary state.
Accordingly, the Serbs were denied independence, but given “entity” status
within Bosnia with autonomy falling just short of statehood and a right to
enter into a “special parallel relationship” with Yugoslavia. Bosnian Croats,
already linked to Bosnian Muslims through a paper Federation negotiated
at Washington™s behest in 1993, retained substantial control over tradition-
ally Croat areas through the division of the Federation into ethnic cantons.
Bosnian Muslims, though denied the strong central government they had
sought, were given formal recognition of Bosnia™s existence as a sovereign
state within its republic borders and a set of provisions calling for return of
refugees and respect for human rights.
In many respects, the agreement follows consociational principles. Conso-
ciationalism is a form of government intended to mitigate con¬‚ict in societies
in which voting behavior turns on ethnic group af¬liation. In such societies,
minorities can be outvoted and therefore marginalized. Majorities need not
fear that a subsequent election will generate a new and different majority;
accordingly, they have few incentives for moderation in dealing with minori-
To address these problems, Arend Lijphart and others have urged adop-
tion of constitutional structures designed to share power. Lijphart has iden-
ti¬ed four basic principles of consociational democracy: grand coalition,
mutual veto, proportionality, and segmental autonomy.42 The grand coali-
tion principle calls for inclusion of all major political parties in executive
decision-making; in this way, “majority rule is replaced by joint consensual
rule.”43 The mutual veto permits each ethnic group (or segment, in Lijphart™s

40 Ruth Wedgwood, Introduction, After Dayton: Lessons of the Bosnia Peace Process 5
(Council on Foreign Relations Symposium 1999).
41 See Donald Horowitz, Ethnic Groups in Con¬‚ict (1985), at 84.
42 Arend Lijphart, Democracy in Plural Societies: A Comparative Exploration (1977),
at 25. For Lijphart, executive power-sharing and group autonomy are the two “primary
characteristics” of consociational democracy. Arend Lijphart, The Wave of Power-Sharing
Democracy, in The Architecture of Democracy (A. Reynolds, ed., 2002) at 37, 39.
43 Lijphart, supra note 13, at 118.

terminology) to block legislation it deems inimical to its vital interests. Pro-
portionality displaces the winner-take-all principle as the “basic standard of
political representation, civil service appointments, and allocation of public
funds.”44 Finally, segmental autonomy grants each ethnic group “as much
decision-making autonomy as possible” on areas of “exclusive concern” to
it.45 In theory, consociationalism offers a way for politically mobilized ethnic
groups to cooperate on issues of common concern while affording each group
assurances that it cannot be outvoted on issues of particular concern to it.
The constitution in Annex 4 of the Dayton Agreement is explicitly conso-
ciational. It mandates executive power sharing (the grand coalition princi-
ple), makes ethnicity the standard for political representation, confers auton-
omy on geographically concentrated minorities, and grants them extensive
veto powers to insulate each group from the potentially adverse effects of
majoritarian rule. In theory, the constitution seeks to create a democratic,
pluralist society with a commitment to human rights and employs consocia-
tional power-sharing mechanisms as the “constitutional adhesive” designed
to “cement the multiethnic Bosnian state together.”46
The constitution divides Bosnia into two entities, the nominal Croat-
Muslim Federation and the Republika Sprska. At least until recently, each
entity has exercised nearly complete autonomy over most areas of gover-
nance, including education, policing, the media, and the economy. The cen-
tral government was given control over only those functions absolutely nec-
essary to a single state nominally speaking with one voice in international
affairs, such as foreign policy, customs, monetary policy, immigration, and
air traf¬c control. Executive and legislative power was shared evenly among
the three principal ethnic groups.
Each group has multiple mechanisms permitting it to veto any executive
action or legislative decision contrary to its interests, warranting compar-
isons of Bosnia to a car with three brakes. Indeed, the constitution was so
heavily weighted toward the protection of ethnic group interests that many
assumed it was simply a mechanism for a disguised transition to the par-
tition of Bosnia. Although the warring parties may well have rejected any
constitution that did not make ethnic group interests its guiding principle,
it was at best an open question in 1995 whether a state burdened with such
an unwieldy political structure could function at all. Certainly, all of the
problems commonly ascribed to consociational arrangements have surfaced
in Bosnia.

44 Id., at 119.
45 Id.
46 Patrick J. O™Halloran, Post-Con¬‚ict Reconstruction: Constitutional and Transitional Power-
sharing Arrangements in Bosnia and Kosovo, in From Power Sharing to Democracy:
Post-Con¬‚ict Institutions in Ethnically Divided Societies (Sid Noel, ed., 2005) at 104,

The most obvious problem is that consociationalism depends on intere-
lite cooperation, which has been notably absent in Bosnia. The reason for
its absence is simple. The war in Bosnia strengthened nationalist parties,
exacerbated intergroup animosities, and fostered a pervasive zero-sum pol-
itics. Dayton papered over the underlying and incompatible aspirations of
Bosnia™s national communities but did not resolve them. The central govern-
ment, intended to create a “thin roof” over the three communities, has been
generally ineffective. Bosnian Serbs in particular have consistently opposed
efforts by Bosnian Muslims to strengthen the central government and render
Bosnia a more cohesive state.
Autonomy affords each principal ethnic group almost complete control
over the day-to-day life of its members. Thus, it gives the three major nation-
alist parties, particularly the Serbs, much of what they want, even if they
lack the formal trappings of statehood.47 Among other things, control of the
“key wealth-producing industries” lies with the entities;48 so does control
over most sources of government revenue. But under the guise of protect-
ing group interests, nationalist politicians in fact have primarily protected
their own interests through corruption, patronage networks, and continued
demonization of the other ethnic communities. Autonomy has fostered con-
tinued separation of the three national communities and hindered coopera-
tion across entity lines on law enforcement, communications, public utilities,
health care, and economic policy.
The veto provisions in the constitution enable nationalist politicians to
pursue continued division by blocking any legislation inconsistent with their
group™s political program. For Serb representatives, that has meant almost all
measures that might strengthen or unify the state and thereby undercut the
nationalists™ power. Thus, Srpska™s representatives have largely opposed the
creation or enhanced operation of common institutions, including courts,
police, and a national army, or a common infrastructure, including shared
transportation, utilities, and communications.
In this kind of environment, the rule of law cannot thrive, because the
institutions that make and implement law, at least at the national level, are
ineffective, needlessly duplicative, and expensive.49 Moreover, the focus on

47 The problem is not con¬ned to Srpska: “even within the Federation Bosniaks and Croats
maintain separate parallel lines of authority. All three parties, but especially Croats and
Serbs, have blocked efforts to develop central institutions. . . .” U.S. Institute of Peace,
Bosnia™s Next Five Years: Dayton and Beyond, at 2, available at http://www.usip.org/
pubs/specialreports/sr001103.pdf (last accessed January 27, 2006).
48 Id., at 6.
49 According to High Representative Paddy Ashdown, Bosnia “is not functional as a state,
since 65% [of its budget] is spent on administration and only 35% on the citizens.”
Interview with Paddy Ashdown, Nacional (Zagreb), January 18, 2005, excerpted at
http://www.bosnia.org.uk/news/news body.cfm?newsid=2009 (last accessed January 27,

ethnicity as the guiding principle for the distribution of political power denies
equal rights to many Bosnian citizens, particularly the “others” who are
entirely neglected in the constitution beyond a brief preambular mention. The
centrifugal effects of the Dayton constitution are thus powerful and plainly
Without more, there would be little hope for a viable and multiethnic
Bosnia, much less a democratic Bosnia committed to the rule of law. But
Dayton also contains a number of potentially unifying provisions. For exam-
ple, the Dayton Agreement expressly mandates the right of refugees to return
to their prewar residences. Effective implementation of this right would go far
toward undermining the power of the nationalist parties. Returning refugees
might trigger shifts in voting patterns suf¬cient to support the formation of
moderate political parties seeking to build support on common interests
other than ethnicity. Returns might also foster intergroup reconciliation.
Even more important is the power of the international community,
acting through the Of¬ce of the High Representative, to force changes on the
recalcitrant local parties. Under the Dayton Agreement, the High Represen-
tative is the ¬nal authority in theater on the interpretation of the agreement
and the implementation of its civilian aspects. Under the original vision of
Dayton, the High Representative was expected to monitor and assist local
actors in carrying out the terms of the agreement. As the International Crisis
Group put it, Dayton opted for a “helping hand” model. Local authorities
and institutions already existed, and the agreement had to take their inter-
ests into account. As time passed, however, it became apparent that Bosnia™s
nationalist politicians could not agree even on the simplest things. Progress
seemed possible only when the international community insisted and backed
its insistence with economic or other leverage. In 1997, a frustrated Peace
Implementation Council, meeting in Bonn, Germany, enlarged the High
Representative™s powers to enable him to force decisions (or take them unilat-
erally), as he saw ¬t. Under his “Bonn powers,” the High Representative may
enact laws by decree, remove politicians from of¬ce, ban political parties,
and take other measures deemed necessary to implement Dayton. Because
of the continuing recalcitrance of the nationalist parties, the High Repre-
sentative has resorted to these powers with increasing frequency, becoming
Bosnia™s “principal legislator” and “imposing laws to strengthen the state
that could never otherwise be passed.”50 The High Representative has used
these powers to create new state institutions, pass new laws and reform old
ones, marginalize or remove extremist politicians (including the Serb member
of the tripartite presidency), and press for the formation of interethnic parties
and alliances.

50 International Crisis Group, Bosnia™s Alliance for (Smallish) Change, August 2, 2002, at 16.

To some extent, the imposition of reforms runs counter to the norms of
democratic accountability that the international community seeks to instill in
Bosnia. And it has permitted Bosnians to resist the fundamental shifts in polit-
ical culture and attitudes necessary to make Bosnia a viable state. But para-
doxically, “[i]n order to abjure use of the Bonn powers,” High Representative
Paddy Ashdown has needed “to use them more intensively” and “to lift the
ceiling of what is meant to be permissible under the Dayton constitution.”51
Ashdown has worked hard to transform Bosnia into a viable, self-sustaining
democracy by using his Bonn powers, and the requirements for Euro-Atlantic
integration set by the United States and the European Union, to induce the
nationalist parties in power in Bosnia to accept reforms designed to transfer
power from the entities to state-level institutions. Ashdown has established
several internationally chaired commissions to ¬nd ways to reassess what the
Dayton constitution permits, in the hope that this will lead eventually to a
“fully-¬‚edged domestic revision of BiH™s constitutional architecture.”52 Sig-
ni¬cant reforms have been adopted, at least on paper, in the areas of defense,
intelligence, and policing, and more are contemplated under the Of¬ce of
the High Representative™s Mission Implementation Plan. Moreover, much of
Bosnia™s infrastructure has been repaired, the currency is stable, and many
refugees have returned.53 And in November 2005, on the tenth anniversary
of the Dayton Agreement, the United States joined Ashdown and others in
calling on Bosnia™s political leadership to accept fundamental constitutional
Whether the reform effort will succeed remains to be seen. What is clear is
that the power-sharing provisions that permitted the Dayton Agreement to
succeed in the ¬rst place are now themselves obstacles to further transition.
Had interveners been willing to run the risks of a signi¬cant military engage-
ment in Bosnia, they could have insisted on a more workable blueprint at
the outset.

2. Kosovo and Minority Rights
Although con¬‚ict in Kosovo, as in Bosnia, centered on identity politics,
Kosovo™s very different demographic and political situation mandated a
very different blueprint. With the dissolution of the Socialist Federal Repub-
lic of Yugoslavia (FRY) in 1991, Kosovo had a plausible claim to inde-
pendence, along with the various Yugoslav republics. But most states then
viewed Kosovo as an integral part of the FRY, one that could not be split off
51 International Crisis Group, Bosnia™s Nationlist Governments: Paddy Ashdown and the Para-
doxes of State Building, July 22, 2003, at ii.
52 Id.
53 See Of¬ce of the High Representative, General Information, Our Mission Implementation
Plan, available at http://www.ohr.int/ohr-info/gen-info/ (last accessed January 27, 2006).

without violating the latter™s territorial integrity. Moreover, the demographic
imbalance between Kosovar Serbs (some 90 percent of the population) and
Kosovar Albanians (approximately 10 percent) rendered a Bosnian-style
consociationialist solution unworkable. Under the circumstances, reinstate-
ment of Kosovo™s preexisting autonomy coupled with legal protections for
minorities seemed to the international community to be the best available
means to balance the legitimate interests of both Serbs and Albanians.
In January 1999, the Contact Group (consisting of representatives of
the United States, Russia, the United Kingdom, Germany, and France)
demanded that FRY and Kosovar Albanian leaders accept a detailed “Interim
Agreement for Peace and Self-Government in Kosovo” (the “Rambouillet
Agreement”). Belgrade, unhappy with the agreement and with the prospect
of NATO troops roaming FRY territory to monitor it, would not agree.
Instead, Belgrade intensi¬ed its military and paramilitary activities in Kosovo
and thereby triggered NATO™s three-month bombing campaign.
The bombing ended with Belgrade™s capitulation. On June 10, 1999,
the Security Council adopted Resolution 1244, which (together with the
subsequent constitutional agreement) continues to serve as the blueprint for
Kosovo™s future. Resolution 1244 authorized the Kosovo Force (KFOR) to
use force to establish a secure environment and carry out related tasks. It also
authorized the Secretary-General, with assistance from international organi-
zations, to establish a transitional civil administration, to facilitate “a polit-
ical process designed to determine Kosovo™s future status,” and eventually
to oversee “the transfer of authority from Kosovo™s provisional institutions
to institutions established under a political settlement.”
The withdrawal of Serb authorities from Kosovo following NATO™s
victory left UNMIK with a ruined infrastructure and a large and rapidly
returning refugee population. From the start, then, UNMIK has had to
rebuild governing institutions from the ground up. To enable UNMIK to
carry out this job (and to avoid the mistakes made in Bosnia), the Security
Council “vested in UNMIK all legislative and executive powers as well as
the administration of the judiciary” and gave it the authority to repeal
or suspend existing laws as it saw ¬t.54 Thus, Kosovo has been treated
more or less as an international protectorate, with the Special Repre-
sentative of the Secretary-General (SRSG) exercising essentially proconsul
The advantages to this approach were substantial. The withdrawal of Serb
forces left a political and security vacuum that Kosovo Liberation Army
(KLA) ¬ghters and others sought to ¬ll. The alternative to UNMIK rule

54 Daan Everts, Review of the OSCE Mission in Kosovo™s Activities, 1999“2000, at 1,
available at http://www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/022a44866c823864c
1256a550032d38c (last accessed January 6, 2006).

would have been, at least in signi¬cant part, rule by paramilitary forces with
little interest in western notions of liberal democratic governance or the rule
of law or, in Serb areas, continued rule by Belgrade. To achieve a transition to
democratic self-governance in Kosovo paradoxically required a command-
ing international role. Among other things, UNMIK needed time to restore
basic services, organize governing institutions, deal with refugee returns, and
assist Kosovars in organizing for elections. Even more importantly, UNMIK
needed time to work on transforming the political culture in Kosovo. At a
minimum, UNMIK needed to look for ways to reconcile Kosovar Albanians
and Kosovar Serbs to living together. Rule by decree was in many respects
an ef¬cient way to proceed.
But necessary as it may have been, treating Kosovo as a protectorate car-
ried its own set of problems. Most important, rule by decree often appeared
arbitrary to the Kosovars and sometimes culturally insensitive. At a mini-
mum, it ran counter to basic democratic and rule of law principles, such
as transparency and accountability in government decision-making, that
UNMIK has sought to build into the Kosovar political system. As discussed
in later chapters, this problem has run the gamut from the very ¬rst UNMIK
regulation selecting the law to be applied in Kosovo to some of the SRSG™s
most recent decisions.
The crux of the problem, though, has been the uncertainty regarding
Kosovo™s ¬nal status. Resolution 1244 deferred resolution of this issue indef-
initely, for the simple reason that agreement on the resolution itself “could
only be reached by recourse to a deliberate ambiguity over status.”55 The
United States, at least, has been quietly sympathetic to Kosovar Albanian
demands for independence; Russia and many European states want Kosovo
to remain part of the FRY. As a result, Resolution 1244 stipulated that
Kosovo is part of the FRY but directed UNMIK to “facilitat[e] a politi-
cal process designed to determine Kosovo™s future status.” The drafters of
Resolution 1244 envisioned that this determination would be made within
three years, but 1244 carries no time limit. Until recently, little progress was
made on this issue, because many international actors feared that attempts to
resolve it would jeopardize the progress of democratic reform in Serbia, incite
further unrest among Albanian populations in neighboring states, encourage
the Republika Srpska to demand independence, and divide the international
These concerns were not without foundation. But the uncertainty regard-
ing ¬nal status meant that the international community drafted a blueprint
for Kosovo™s future with no clear idea what the completed structure should
look like. Kosovar Albanians insisted that they would accept nothing less

55 International Crisis Group, A Kosovo Roadmap (I), Addressing Final Status, March 1, 2002,
at 2.

than independence. Kosovar Serbs feared, with considerable justi¬cation,
that they would be subject to discrimination and worse in an independent
Kosovo. Possible solutions are numerous, but all of them are problematic.56
Unfortunately, the failure to resolve the ¬nal status question has under-
mined much of UNMIK™s work. The Assembly, for example, one of the
key institutions of self-governance established in 2001, has wasted much of
its time pushing measures designed directly or indirectly to establish inde-
pendence as Kosovo™s end-state, even though this is outside the Assembly™s
mandate and invariably blocked by the SRSG. Even fundamental rule of
law reforms, such as efforts to approve new legal codes, have been stalled
by UN of¬cials wary of suggesting that Kosovo™s legal system should be
wholly divorced from that of the FRY. Uncertainty about ¬nal status has also
“constrain[ed] the privatization process and hinder[ed] economic develop-
ment,”57 because no one can be con¬dent of the future legal and political
framework. It has interfered with efforts “to deal with borders and border
controls, citizenship, drug and other traf¬cking, regional cooperation on
organized crime, and a host of other issues. . . . ”58 In short, though the fail-
ure to resolve Kosovo™s ¬nal status is readily understandable, the uncertainty
has been “itself a key source of instability.”59
The goal of intervention in Kosovo was to end the ¬ghting between Serbs
and Albanians and to construct a stable and democratic polity in which the
rights of each group would be respected. KFOR has ended the ¬ghting. But
UNMIK can™t construct the polity that would permit the interveners to leave
without resolving the issue at the heart of the con¬‚ict. Leaving the status
issue unresolved encourages each side to view the con¬‚ict in zero-sum terms.
All efforts at reform are viewed through the lens of their possible effects
on ¬nal status. As long as that issue “remains open, each side will continue
to regard the other as a threat”60 and each side will continue to maneuver
with ¬nal status in mind. Serbs, for example, will continue periodically to
boycott elections and seek to maintain Belgrade-¬nanced parallel govern-
ment structures; Albanians will resist cooperation with Belgrade on issues
of joint concern and oppose the return of Serb refugees.61 Nationalists on

56 For discussion of the full range of options, from long-term protectorate to partition, see
United States Institute of Peace, Kosovo Final Status: Options and Cross-Border Require-
ments, available at http://www.usip.org/pubs/specialreports/sr91.pdf (last accessed Jan-
uary 27, 2006).
57 Id., at 2.
58 Id.
59 A Kosovo Roadmap (I), supra note 55, at ii.
60 Id.
61 Albanians “see the selection of return locations . . . as working to ful¬l Serbia™s political
objective: the partition or cantonization of Kosovo. Many also regard returnees as Serbia™s
Trojan horse “ a mechanism to bring the control and in¬‚uence of the Serbian government

both sides “are able to use the lack of clarity on ¬nal status as a rallying
point. . . .”62
Although well aware of this problem, UNMIK has, at least until recently,
focused on pursuing “standards before status.” UNMIK established bench-
marks on a series of issues, from a functioning economy to an impartial legal
system, which once achieved would facilitate resolution of Kosovo™s ¬nal sta-
tus. UNMIK hoped in this way to use the status issue as leverage to promote
politically moderate behavior. It also hoped that the gradual process of trans-


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