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.
Sierra Leone: Immediate Postviolence Period, 1999–2000
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.
Northern Ireland: Implementation of Peace Agreement, 1998–2005
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
CHALLENGES TO SYNERGY
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.
Challenge 1: Potential Trade-Offs between Accountability and Inclusion during All Phases of Conflict
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.
Challenge 2: Coordinating Attention to Short-Term Violence and Long-Term Structural Changes
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.
LATEST DEVELOPMENTS
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.
The Handbook of Conflict Resolution (3rd ed) Page 110