Eileen F. Babbitt
Most conflict resolution practitioners hope that their work catalyzes a process that supports both peace and justice. This is particularly challenging in cases where there are large power asymmetries between disputing parties or where massive human rights violations are being or have been committed. This chapter explores these challenges to conflict resolution by focusing operationally, at the track 1 level of practice where peace agreements are negotiated and implemented. It looks specifically at the interface between mediation and human rights as a microcosm of the challenge. It posits that synergy is both possible and necessary between these two practices, but there are inherent tensions between peace and justice goals that must be addressed in order for such synergy to occur.
It is often asserted that reaching a sustainable agreement to end intergroup political violence requires stemming the human rights violations that are both a precursor to and a consequence of such conflicts. But this is easier to assert than to achieve. Two areas of practice that pursue these separate but interrelated goals, mediation and human rights, make different assumptions, apply different methodologies, and have different institutional constraints (table 31.1 ). These differences include the treatment of norms violators, the way justice is defined, and the implicit theory of social change that animates each.
Table 31.1 Key Differences between Human Rights and Mediation
Source: Babbitt, Eileen F. (2008). “Conflict Resolution and Human Rights: Pushing the Boundaries.” In I. W. Zartman et al. (eds.), The Handbook of Conflict Resolution (613–629). San Francisco: Sage Publications.
| Issue | Human Rights | Mediation |
| Treatment of norms violators | Naming and shaming; set no precedent for rewarding bad behavior; change behavior with “sticks” approach | Include violators in discussion to learn their interests and change their behavior with “carrots” as well as “sticks.” Change attitudes as well as behavior |
| Conception of justice | Individual accountability; punishment/retributive justice | Fairness in the eyes of the parties; restorative as well as retributive justice, to maintain relationships if possible |
| Theories of social change | Define the ends; design means to reach those ends | Define means; ends that emerge will be fair if the process is designed well and is impartial |
In human rights practice, human rights violators are prosecuted through national or international courts and the human rights treaty bodies, or are shunned and stigmatized in keeping with the use of “naming and shaming” as a strategy for enforcement. There is a grave concern in human rights practice about appearing to reward bad behavior. Conversely, in third-party conflict resolution practice such as mediation, violators of human rights norms are often included in discussions with both official and nonofficial third parties. Track 1 processes (i.e., those that take place between the decision makers from each party) include human rights violators because they are often the leaders who can deliver an agreement. Such processes do not place a high priority on confronting perpetrators over human rights violations.
A second major difference between mediation and human rights is in their interpretations of justice. In human rights terms, justice is connected to state-level and individual-level accountability for violations of human rights, and the remedy sought is primarily retributive in nature: prosecution of individuals, for example, or political or economic sanctions against states. For mediators, justice is either sidestepped or deferred, or defined in terms of the fairness of a settlement in the eyes of the parties to the dispute. Accountability mechanisms are discussed and included in negotiations only if the parties want them to be. The mediator weighs in primarily to review the appropriateness of incorporating accountability mechanisms used in other contexts but does not dictate what must or should be done.
Finally, mediation and human rights differ in their theories of what creates constructive social change. Human rights focuses on the creation of international norms, which are intended to shape behaviors. The implicit assumption is that change occurs when individuals and governments are held accountable for the way they act, specifically in regard to the norms negotiated and agreed to in the Universal Declaration of Human Rights (1948) and the implementing covenants that followed it. Because of external pressure (e.g., public shaming, sanctions imposed by other states) or internal pressure (e.g., advocacy by local human rights organizations and state-level legislation), political leaders will calculate that it is in their interest to abide by these norms.
Mediation practice has proceeded in a different way, by designing processes in which fair and sustainable results can be achieved and then seeking to demonstrate the power of those processes to produce such results. One crucial element that makes these processes work is their voluntary nature: parties can choose whether to participate or to accept deals that are offered. This lends legitimacy and staying power to the outcome. An effective way to encourage voluntary participation is through the perceived impartiality of any mediator. Impartiality assures all of the parties to the conflict that their interests will be taken seriously in the negotiation process and that the facilitator or mediator will not be unduly biased in communicating about or attempting to get these interests met. Without such perceived impartiality, parties in conflict are likely to opt out of a mediation process unless they are coerced into participation by a “mediator with muscle.” 1 A mediator with muscle is one with the resources (political, military, economic) to induce a disputant to change his or her calculus about the costs and benefits of accepting a deal. Such a mediator can force parties to the table and even impose an agreement, but then must maintain a continuing presence to be sure the parties implement the imposed settlement. Therefore, for sustainability, it is much better if an agreement is self-reinforcing, requiring less oversight by external actors.
Mediators are therefore concerned that parties will not voluntarily submit to or implement a process that calls their human rights record into question. If one or more of the primary parties to the conflict refuse to participate, the viability of negotiation is threatened. For example, when Lakhdar Brahimi, as the UN special representative to Afghanistan, negotiated with the Afghan warlords to conclude the 2002 Bonn Agreement, 2 he was criticized by international human rights nongovernmental organizations for not insisting on accountability for their past abuses as part of the negotiations. His response to this criticism was to say that his job was to stop the violence first and that accountability would follow later in the process. 3 One can infer from this that Brahimi felt he could not get the warlords to participate in negotiations or to come to agreement if each knew he would be opening himself up to punishment for his past acts.
So while it is true that some strong track 1 mediators have very specific substantive goals for an agreement and seek to impose those goals on the parties (e.g., the United States in the 1995 Dayton Accords for Bosnia), many track 1 mediators believe that constructive deals come instead through a well-designed process of engagement and problem solving. By facilitating such processes and educating participants in how to develop strategies consistent with effective conflict resolution principles, these mediators hope to improve the quality and sustainability of agreements.
In order to investigate whether and how these differences in assumptions affect practice, a study was done to compare a set of conflicts in which both human rights work and mediation were actively engaged: Colombia, Sierra Leone, and Northern Ireland. 4 The initial purpose of commissioning the case studies was to explore how these two agendas proceeded in each conflict and whether constructive interaction between their activities was achieved. The research and writing was done from 2005 to 2008 and published in 2009. These cases were chosen because they allowed a comparison of violent political conflicts at three phases: during violence, immediately after violence ended, and several years after a peace agreement was signed.
Ellen Lutz and I provide the full case studies in our edited volume, Human Rights and Conflict Resolution in Context . 5 We provide informative detail from the perspective of human rights and conflict resolution practitioners on the ground during each of these conflicts. In this chapter, I revisit the findings from that original study to explore both tensions and synergies between mediation and human rights practice and to investigate how the synergies may be improved.
The guerrilla war in Colombia began in the mid-1960s with the formation of the Fuerzas Armadas Revolucionarias de Colombia (FARC) and, later, other insurgency groups, all of which were protesting the extreme economic inequalities in the country and the government’s draconian measures to repress dissent. The violence, perpetrated by government, paramilitary, and insurgency groups, continues to the present day. The latest revival of peace talks between the Colombian government and FARC was begun in 2012; as of this writing, the talks have not yielded any agreement.
During the period covered by our case studies, from the 1960s to 2007, both the human rights and negotiation agendas were active in the country. On the negotiation front, the government justified its rejection of the guerrillas’ demands by invoking antidrug policies and later antiterrorism in the wake of the 9/11 attacks in the United States. Each of these framings was very much driven by US foreign policy preferences and the military and financial support provided to Colombia by the US government. 6 The lack of resolution to the conflict led to massive human rights violations by the government and the paramilitary groups it spawned, which in turn created locally based human rights organizations in the 1970s and the continuing attention of international human rights groups such as Human Rights Watch. 7 This NGO pressure on the Colombian government has had some positive impact, including negotiations leading to the disbanding of many paramilitary groups after 2002 during President Alvaro Uribe’s term of office. However, the continuation of the war itself has kept the country’s human rights record from improving.
In addition, the overall peace agenda has not been successful and has generated both synergy and antagonism at various points with its human rights counterpart. Most negotiation attempts have been bilateral, with the only third-party mediation efforts initiated by the European Union in the 1990s, and often as a result of pressure from civil society within Colombia. During President Andres Pastrana’s administration (1998–2002), talks with FARC began in 1998, leading to significant gestures on the part of the government but continuing threats to the insurgents from the paramilitaries. 8 The concessions to FARC, especially the ceding of territory by the government in order to provide opportunity for negotiation, was strongly criticized by human rights groups, creating the first clear conflict with the peace agenda. 9 However, the US antiterrorism push after 9/11 ultimately led to the abandoning of negotiations by the government, which continued during the succeeding Uribe administration.
During the Uribe years (2002–2010), however, negotiations did take place with the paramilitary groups, and many did technically disarm. But the groups’ members were not required to relinquish the lands they had confiscated, resulting in another outcry from the human rights community against the de facto impunity being granted to them. 10
The unfortunate outcome in Colombia to date is no end to the conflict and no accountability for human rights abuses committed by any of the combatants—thus a failure of both the peace and justice agendas.
The civil war in Sierra Leone began in the 1990s, when Fodoy Sankoh and the Revolutionary United Front (RUF) attempted to overthrow the government because of resentments against the country’s elites and desire for control over mineral resources, especially diamonds. 11 Many years of brutal civil war ensued, complicated by support to the rebels from Liberia and attempts at containment via military intervention by the Economic Community of West African States. A peace accord was signed in Lome in 1999, but lax implementation and renewed attacks by the rebels in 2000 threatened to restart the war. British troops finally stabilized the country, and an updated agreement was signed in November 2000, finally bringing the war to an end.
An unfortunate hallmark of this war was the widespread recruitment of child soldiers and the mutilation of the civilian population as a fear tactic by the rebel army. This brought strong condemnation by the human rights community and the committed presence of nongovernmental human rights organizations on the ground in the country beginning in the mid-1990s. In addition, the government set up the National Commission for Democracy and Human Rights during this same period, funded by the UN Development Program. The UN itself deployed to Sierra Leone in 1998, sending a special envoy and setting up a mission that included a robust human rights component. 12 The integration of diplomacy, human rights monitoring, and peacekeeping functions was to continue throughout the peacemaking and postsettlement phases.
The case writers of this study identified both synergies and tensions between the peace and justice agendas during and after the peace agreements were negotiated. The synergies included extensive human rights input into the preparation and negotiation of the Lome Agreement in 1999, focusing on inclusion of civil society in peace talks, reparations for victims, and accountability mechanisms such as a truth and reconciliation commission. All of these provisions were included in the final agreement.
The tensions revolved around amnesty for Fodoh Sankoh and his close associates in the RUF. While the human rights community strongly opposed this, the negotiators decided that such an amnesty was necessary in order for political reconciliation to occur. The government and RUF included such a provision in the agreement; however, largely due to pressure from the human rights community, the UN envoy was instructed to attach a handwritten addendum declaring that general amnesty would not extend to violations of international law. 13
Another tension concerned the implementation of the Lome Agreement, plus the additional mechanisms for accountability put in place after the upsurge of violence during the implementation phase in 2000. In addition to the truth and reconciliation commission, a special court was established to prosecute those in authority during the worst of the human rights abuses. Both the truth and reconciliation commission and the special court were set up as hybrid bodies, with the participation of both local and international members. While having both types of institutions operating in tandem was considered a positive step, critics noted that neither was equipped to fully address the distributive justice needed for reparations as demanded by the human rights agenda or to pay sufficient attention to local customs for reconciliation as required by the peace agenda. 14
The country remains beset by “entrenched corruption, poor health conditions, weak governmental institutions, high unemployment, slow economic growth, abject poverty, and inadequate social services.” 15 However, in the November 17, 2012, presidential and parliamentary elections, over 87 percent of the electorate participated. The US State Department called it “a generally peaceful process that marked the third consecutive successful election since the end of the war.” 16 Perhaps the biggest step forward in terms of justice seeking was the May 30, 2012, conviction and sentencing of Charles Taylor, the former Liberian president, by the Sierra Leone Special Court on charges of war crimes and crimes against humanity committed during the Sierra Leone civil war.
The Troubles, as the conflict in Northern Ireland is called, began in the late 1960s, brought on by demands for protection of civil, political, and economic rights by the minority Catholic community. When the United Kingdom took over governance of the country in 1972, the struggle became one of “national liberation” from British rule and continued for over twenty-five years until the signing of the Good Friday Agreement in April 1998. 17
One of the interesting features of this case is that the perceived rights violations against one party (the Northern Ireland Catholics) by the other party (the Northern Ireland and British Protestants) was transformed in the Good Friday Agreement (GFA) to being protection of rights for all. According to human rights experts in the country,
In the GFA a paradigm shift occurred. Human rights protections moved from being the traditional zero-sum game of determining the winners and losers to operating as a neutral vehicle facilitating the resolution of deeply entrenched differences between political opponents. Moreover, human rights concerns stopped belonging exclusively to the nationalist domain (generally denoting the minority Catholics). Instead the human rights formulas in the GFA function as a means for the unionist community (generally denoting the Protestant majority) to ensure that their long-term political and cultural identities are protected through institutional and legal means. 18
The intention in both the nonpartisan approach to human rights and the power-sharing arrangement provided for in the GFA was a country with more inclusion, less discrimination, and therefore less violence—explicitly a peace-with-justice agenda. As our case writers noted, in the early years after the agreement was signed, there were two significant ways in which the agenda faltered and violence continued: during the so-called marching season, in the months when the Protestant loyal orders commemorate historic victories and march triumphantly through Nationalist/Catholic areas in Belfast, and at the interface areas, mostly poorer parts of West Belfast where Protestant and Catholic neighbors live side by side but separated by high fences called “peace lines.” 19
Some analysts explained the postagreement violence as coming from the deeply rooted mistrust and suspicion that exist between these identity groups, which they claim will take more than a peace agreement to heal. Others said that the crux of the problem was (and is) about political power and that attending to human rights would never be enough unless the fundamental structure of the state was altered. 20 Having a strong human rights framework in the peace agreement is necessary but not sufficient to overcome the mistrust and reorganize power relationships. Interestingly, the attention to human rights in the postagreement phase has led some in the unionist/Protestant community to frame the parades as expressions of their right to celebrate their identity and therefore assert that the marches must not be tampered with or rerouted because they offend nationalist sensitivities. Rather than being a conflict-resolving mechanism, the new equality at least initially created competing human rights claims. The Parades Commission, set up in 1998 to deal with disputes about parades, attempted to use mediation to manage these disputes at the local level, but in many cases, the mediators were branded as biased by one of the parties simply for allowing the views of the “other” to be taken seriously. 21
Others in the human rights community claimed that the continuing violence was due to the underenforcement of the framework set out in the GFA in the first few years after the agreement was reached. In their view, better follow-through on improved policing, judicial reform, transitional justice, and the passage of a bill of rights are essential if peace in the country is to be preserved. 22 Local conflict resolution experts, however, were critical of this view, asking why the human rights emphasis was solely at the policy level and on holding the government accountable, and not on looking more deeply at local realities and investigating group-level relationships and responsibility. 23
These case studies identified two key challenges to creating better synergy between human rights and mediation in peace-building practice in order to address both peace and justice concerns. One is the tension between establishing sustainable nonviolent relations between contending groups within a country and holding accountable the members of such groups for human rights abuses or war crimes. The second is the problem of coordinating attention to immediate impacts of violence at the ground level with the longer-term structural changes needed at the policy and government levels.
It is widely known that one of the critical issues in the period after a peace agreement has been reached is how to deal with war crimes and human rights abuses committed by the previous government. While human rights advocates push for accountability for crimes committed and punishment to deter further abuses, conflict resolution advocates worry about circumstances in which punishing the perpetrators might further splinter the society, making the healing process more difficult.
One of the interesting findings in our case studies is that this disagreement about whether perpetrators should be punished or rehabilitated occurs not only after an agreement has been reached, but also at every other conflict phase. In Colombia, where violence is still occurring and no agreement has been reached, this tension manifests itself in the government’s response to the guerrillas, particularly the FARC. One of our case writers claims that while there is a desire on the part of FARC leaders for inclusion and dignity, they have come to see violence as the only way they can participate in a government from which they have been alienated for generations. However, over the years, these same guerrillas have turned to illegal activity such as drug trafficking to support themselves. This creates a real challenge: to recognize the legitimate interests of the guerrillas for establishing that politics as opposed to violence is the way to resolve differences (the conflict resolution perspective), while at the same time to strengthen the rule of law by prosecuting criminals for their drug activities and kidnappings (the human rights perspective). How can both views be accommodated?
In Sierra Leone, the conundrum occurred around the issue of amnesty for the leader of the RUF, Fodoy Sankoh, as the peace agreement was being negotiated. A BBC report from July 10, 1999, summarized the situation faced by the international mediator: 24
The architect of the recent Sierra Leone peace deal has defended the ceasefire agreement, amid accusations that it would allow rebels to go unpunished for atrocities committed during the eight-year civil war. The Togolese Foreign Minister, Kokou Koffigoh, told the BBC it was unrealistic to talk about respecting human rights unless the war was brought to an end. The Togolese foreign minister was speaking the day after the United Nations Commissioner for Human Rights, Mary Robinson, said any internal reconciliation commission should be backed up by an international inquiry. Mrs Robinson said she welcomed the peace accord, but confirmed the UN would not accept that amnesties could be granted to those guilty of genocide, crimes against humanity and other gross violations.
Several human rights organisations have voiced protests against the deal, saying that that those who have carried out atrocities would be allowed to benefit from an amnesty. The UN representative who signed the peace deal added a hand-written note, which said the amnesty should not cover gross violations of international humanitarian law. The New York–based Human Rights Watch says it wants the UN to develop this note into a formal protocol, and to put pressure on both the Sierra Leone Government and the rebels to endorse it.
It became a watershed case in that it pushed the UN secretary general at the time, Kofi Annan, to develop guidance for UN mediators that prohibits support for the granting of amnesty for war crimes as an incentive for a peace deal:
Demands for amnesty may be made on behalf of different elements. It may be necessary and proper for immunity from prosecution to be granted to members of the armed opposition seeking reintegration into society as part of a national reconciliation process. Government negotiators may seek endorsement of self-amnesty proposals; however, the United Nations cannot condone amnesties regarding war crimes, crimes against humanity and genocide or foster those that violate relevant treaty obligations of the parties in this field. 25
Thus, the UN guidance makes explicit that agreements mediated under UN auspices may not excuse parties from accountability for mass atrocities, in accordance with the UN Charter. Since the Sierra Leone case, the International Criminal Court has begun its operations, making it possible to prosecute leaders for these crimes. This makes it even less likely that leaders can obtain complete amnesty in return for signing a peace accord.
The Good Friday Agreement in Northern Ireland, while containing a strong human rights component to govern future relations, is silent on acknowledgment of past acts of discrimination against the Catholics in the region, the original cause for violence when the Troubles began. Our case writers noted that the founding of the state itself institutionalized discrimination, and even in 2013, the bill of rights promised by the 1998 agreement had yet to be agreed on.
If the pursuit of peace and justice outcomes appears to be at odds, one commonly suggested approach is for sequencing: stop the physical violence first, then attend to the structural violence (including human rights protections). This was Lakhdar Brahimi’s view in negotiating with the Afghan warlords. The challenge is that stopping the structural violence requires dealing directly with the power asymmetry, and the will to accomplish that may wane (especially for the higher-power party) after the peace agreement has been signed. In addition, how the agreement is reached and what it contains will greatly affect whether and how human rights concerns are ever addressed.
Sierra Leone demonstrates how peace and justice can be pursued simultaneously. Recall that the peace agreement initially provided amnesty for the RUF, but the UN mediator added a caveat saying that the UN could not agree to this when war crimes had been committed. The overwhelming evidence of such crimes and the horrific nature of them created an international backlash against waiting for accountability, and both a truth and reconciliation commission and a special court were convened in the wake of the peace agreement. Fodoy Sankoh himself was brought before the court, as were several of his commanders in the RUF. There has been no backlash against these proceedings.
Northern Ireland offers a counterpoint. The peace agreement contains a strong human rights framework, but implementation has been slow. The emphasis has been on getting the power-sharing arrangements to work rather than on human rights or accountability. Unlike Sierra Leone, there has been no international groundswell of pressure to do so. As the ongoing parades-related violence shows, there is a new challenge of competing rights, with no trusted body to mediate or arbitrate.
In a 2012 review of the implementation of the peace agreement, undertaken by the Community Relations Council in Northern Ireland, the findings are decidedly mixed. On the one hand, data show that the political institutions are secure and violence is down. 26 On the other hand, the divisions within the society endure, with power firmly entrenched in identity-based political parties, the police forces still largely segregated, and no strategy for addressing the core divisions between Catholics and Protestants. Interestingly, the report found that one of the causes of violence in 2011–2012 was the release of findings of inquiries into historical events, or the lack of such inquiries. Depending on the events in question, either the Protestant or Catholic community has disputed the results or demanded that more action be taken to hold people accountable. Dealing with the past has not really taken hold.
In Colombia, the demonizing of the FARC by both the Colombian government and the United States has made it impossible to negotiate a peace agreement. Under such circumstances, the evil “other” is not thought to have any legitimate interests, and any concession could be seen as offering impunity for unacceptable behavior. As the other two case studies demonstrate, until that hurdle is cleared and the peace process acknowledges the rights and interests of all parties, no peace agreement is possible.
On sequencing, the context is therefore crucial in determining the timing. The groundwork must be laid in the peace process and in the agreement itself for protection of rights and accountability of past infringements to happen. But the optimal time period for that process, if one in fact exists, is yet to be determined and requires more study.
Since this study was done, two additional changes in the international order have greatly influenced the mediation of conflicts involving human rights abuses: increased international prosecutions for war crimes, crimes against humanity, and genocide through the International Criminal Court (ICC), established in July 2002; and the 2009 UN General Assembly resolution supporting the Responsibility to Protect (R2P). R2P affirms that states have the responsibility to protect their citizens from mass atrocity, and if the state is unable or unwilling to do so, international actors must do so instead. It is driven by human rights concerns to protect groups rather than individuals from the harm caused to them by their own governments. Several important conflicts—notably those in Uganda, Libya, and Syria—illustrate the peace and justice challenges that these new obligations are creating.
In a 2007 conference address, Luis Moreno-Ocampo, the ICC’s chief prosecutor, said, “It is essential . . . to ensure that any conflict resolution initiative be compatible with the Rome Statute, so that peace and justice work effectively together. Arrest warrants are decisions taken by the judges in accordance with the law, [and] they must be implemented. I call upon States Parties and other stakeholders to remain in all circumstances aware of the mandate given to the Court; there can be no political compromise on legality and accountability.” 27
The tension created by the ICC prosecutor’s approach has played out most poignantly in Uganda, where the Lord’s Resistance Army (LRA), led by Joseph Kony, has been fighting against the government ostensibly on behalf of the Acholi people since 1987. The case was referred to the ICC by President Yoweri Museveni of Uganda in 2003 and the ICC issued its indictment of Kony and several others from the LRA in 2005. Much has been written about how this undermined the peace talks taking place between the Ugandan government and the LRA. 28 In response, local Acholi leaders in northern Uganda asked that the ICC suspend its prosecution and allow “reconciliation” to take place according to local custom; the court refused. Kony broke off peace talks and retreated and is now continuing the violence from camps in south Sudan, the Democratic Republic of Congo, and the Central African Republic.
The case conversely illustrates the concept of “bargaining in the shadow of the law.” 29 The term was coined in a very different context, in US domestic negotiations, and refers to the process by which legal rules set the boundary of acceptable outcomes in many negotiations. Moreno-Ocampo, the former ICC prosecutor, used the term to describe the potential of this judicial institution to transform international conflicts by virtue of introducing a rights framework into the way local stakeholders think and talk about justice. 30 Indeed, one author writing about Uganda reported witnessing firsthand the profound transformation that happened on the ground in northern Uganda as the court began its investigation into the violations that allegedly occurred there. He claims that the impacts went far beyond the cases of the five indicted individuals, reinvigorating society-wide discussions on the importance of human rights and dignity as part of any peace process. 31
The case of Libya illustrates a different ICC story. The UN Security Council referred the case to the ICC in February 2011. 32 Indictments followed in June 2011, an amazing change of pace for the ICC, which usually takes a year or more to bring indictments. African foreign ministers denounced the indictment, accusing the body of “failing to collect enough evidence to prove that (Muammar) Gaddafi has committed war crimes” and accusing it of being used “as an instrument by powerful Western governments to punish and humiliate African leaders.” 33
The head of the Commission of the African Union (AU), Jean Ping, reported that the AU delegation attempting to mediate between the warring parties in Libya was denied authorization to visit the country by the UN Security Council. 34 The five-member delegation was scheduled to visit the Libyan capital, Tripoli, on March 20, 2011, and Benghazi, the capital of the rebellion, on March 21. The bombing of Libya by coalition forces began on March 19 and prevented any further efforts at a mediated end to the conflict.
Some analysts have asked whether the ICC indictment, coming so early in the escalation of the conflict, precluded offering asylum to Gaddafi as a condition of his leaving office (as was done in Yemen), and therefore doomed any mediation efforts to failure. Along with the rush to use military force, it is notable that the indictment also undercut any African Union mediation efforts.
In the Libya case, the US government pushed early and hard for a punitive approach with negotiation not ever seen as a viable option. In Syria, the United States has taken a different tack. In February 2012, Secretary of State Hillary Clinton backed away from seeking an ICC indictment of President Assad:
“Based on definitions of war criminal and crimes against humanity, there would be an argument to be made that he would fit into that category,” Clinton told a Senate hearing on the State Department budget.
“But I also think that from long experience that can complicate a resolution of a difficult, complex situation because it limits options to persuade leaders perhaps to step down from power,” Clinton said. 35
At that point, the United States was implicitly supporting UN mediation efforts by Special Representative Kofi Annan, by leaving an “out” on the table for the leader. Since 2012, the US government has explicitly asked for President Assad to step down, Russia has continued to support the Assad regime, and the mixed signals from the UN Security Council have undermined the mediation efforts of Annan’s successor, Lakhdar Brahimi. Subsequently, the United States and Russia proposed an international conference at which the Syrian government and opposition groups would presumably negotiate an end to the war, with no progress being made. At the time of this writing, the US government is considering air strikes against Syria due to use of chemical weapons on civilians, for which the US government holds Assad responsible. It is not clear what options are available for the future governance of the country, or for accountability for the death and devastation that has taken place since the war began.
Although there are challenges to implementing both peace and justice, the linkages are apparent, and the benefits to doing so are significant. Based on the case study analysis and taking recent policy developments into account, I offer some preliminary steps to improve the synergy of these two agendas.
In order for mediators to embrace the human rights agenda, especially in conflicts with large power asymmetries, they must have advisors who understand both the opportunities and limits of human rights provisions in negotiating and writing peace agreements. In many instances, such agreements simply list references to all of the human rights documents and treaties without tailoring these obligations to the context at hand. While better than no reference at all to human rights, these general obligations make implementation easy to defer or avoid altogether.
One positive example of such consultation is the UN expert standby team, individuals who are available to consult with UN mediators during negotiations and as agreements are being drafted. One member of the team has expertise in human rights and can advise on how these concerns might be addressed both prospectively and retrospectively. Such experts must be aware, however, of the caveats of timing discussed in this chapter and not be dogmatic about pushing for accountability in ways that will undermine the overall peacemaking effort.
No study has been done to determine whether amnesty does or does not lead to the undermining of rule of law or to the instability of peace agreements, and yet this has now become UN guidance for mediated agreements. Empirical analysis must be done to determine what is really accomplished by punishing leaders and other perpetrators and whether the timing of such punishment matters in these impacts.
There is a complementary practice, being pioneered at the community level in the United States, to provide restorative justice. In this approach, perpetrators and victims meet each other face to face in an effort to humanize each other and, in some cases, mend the relationship. At the political level, the BBC replicated this process by sponsoring a series of encounters in Northern Ireland between victims and perpetrators, facilitated by Archbishop Desmond Tutu. Some of these were chosen for broadcast on BBC stations in the United Kingdom. Rather than assuming that this is an effective strategy for peace with justice, as with retributive approaches, empirical study must be done to determine what such encounters actually accomplish.
The Sierra Leone case demonstrates the value of creating separate, parallel mechanisms that are coordinated in their efforts. Having a peace agreement that created a truth and reconciliation commission designed to repair relationships, but also later a special court for prosecutions of war crimes, struck a balance between the two goals. This was not the initial plan; the court was created only after the RUF reneged on its agreements and continued to commit atrocities. However, the learning is that these are not mutually exclusive mechanisms but can work in tandem.
With the ICC now in place, it is even more important to find complementarity between reconciliation and accountability processes. As Uganda and Libya demonstrate, this may be seen as a challenge to the independence of the court, but more exploration of options needs to occur so that the tensions with peacemaking are mitigated.
Mediation is more likely to produce a deal if the mediator is perceived by the parties to be impartial. This was true in Northern Ireland, and in 2012–2013, a lack of impartiality created problems for UN mediation in Syria because the only agreement acceptable to the mediator became the removal of President Assad. Without being able to enforce that outcome, the negotiations could not go forward.
By taking a sequencing approach, mediation can pursue at least a negative peace (stopping the physical violence) while laying the groundwork for accountability further along in the peace-building process. Mediation that explicitly incorporates human rights norms builds that grounding in two important ways. First, it helps to empower the weaker party. By strengthening the salience of human rights norms during negotiation and in the peace agreement itself, third parties can give a weaker party the support it might need to negotiate from a more equitable vantage point. Second, human rights norms are important in reinforcing the notion that a state’s sovereignty carries with it a responsibility to protect the civilians within its borders. Northern Ireland has taken this sequencing route, and while it is imperfect and takes time, it is often more realistic than pushing for both peace and justice simultaneously.
Under conditions of large asymmetries of power in which the power differential is resulting in extreme violence against the weaker party, however, impartiality is difficult to sustain. Mediation that seeks to punish the more powerful party under such circumstances can be successful only if it is paired with the use of military force. In Sierra Leone, it took intervention by the British army to stop the violence and create the mechanisms to bring perpetrators to justice. Unless such force is available and usable, a negotiated end to the violence in which accountability is deferred may be the only possible short-term outcome.
As other studies have shown, deal making is not the end of a negotiation process; the implementation also requires attention, as the relationships may still be problematic and the conflict, while no longer violent, may be far from over.
Human rights goals also require time to implement, and governments may drag their feet after an agreement is signed because the pressure for immediate action is lifted. Here is where the commitments to both agendas are tested for internal and external actors. Ideally, such commitments can be sustained by external actors until internal actors have the capacity for both. Pragmatically, ongoing commitments are very hard to come by because of the political and financial costs. The human rights community has been much better at sustaining its involvement than have mediators, and that must change in order for rights to be negotiated over the long term rather than being the basis for ongoing conflict.