The Handbook of Conflict Resolution (3rd ed)

by Peter T Coleman

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  CHAPTER THIRTY-ONE

  THE PRAGMATICS OF PEACE WITH JUSTICE The Challenge of Integrating Mediation and Human Rights

  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.

  INHERENT TENSIONS

  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.

  EXPLORING THE PRACTICE

  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.

  Colombia: Ongoing Violence

  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 an
tidrug 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