The Handbook of Conflict Resolution (3rd ed)

by Peter T Coleman

  ICC Indictments in Uganda and Libya

  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.

  Syria

  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.

  MOVING FORWARD: OPERATIONALIZING PEACE WITH JUSTICE

  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.

  Incorporating Human Rights Experts as Advisors in Peacemaking

  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.

  Analyzing the True Impacts of Retributive Justice

  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.

  Creating Complementary Processes and Mechanisms to Address Postagreement Accountability and Reconciliation

  The Sierra Leone case demonstrates the value of creating separate, parallel mechanisms that are coord
inated 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.

  Accepting That Sometimes Sequencing Is the Best Alternative, with an Eye to Enabling the Sequence to Progress

  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.

  Making Commitments to Both Peace and Justice over Time

  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.

  Notes

  1. Strauss, Donald B. (1981). “Kissinger and the Management of Complexity: An Attempt That Failed.” In Rubin, Jeffrey Z. (ed.), Dynamics of Third Party Intervention: Kissinger in the Middle East. New York: Praeger, 1.

  2. Officially the Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions.

  3. Sebenius, James, and Kristen Schneeman (eds.), Great Negotiation 2002: Lakhdar Brahimi. Cambridge, MA: Program on Negotiation, Harvard Law School. DVD/video.

  4. Babbitt, E. F., and E. Lutz (eds.). (2009). Human Rights and Conflict Resolution in Context: Colombia, Sierra Leone and Northern Ireland. Syracuse, NY: Syracuse University Press.

  5. Ibid.

  6. Kirk, Robin. (2009). “Human Rights in the Midst of Conflict.” In E. F. Babbitt and E. Lutz (eds.), Human Rights and Conflict Resolution in Context: Colombia, Sierra Leone and Northern Ireland. Syracuse, NY: Syracuse University Press. Sikkink, Kathryn. (2009). “Comments on the Colombia Chapters from the Perspective of Human Rights Theories.” In E. F. Babbitt and E. Lutz (eds.), Human Rights and Conflict Resolution in Context: Colombia, Sierra Leone and Northern Ireland. Syracuse, NY: Syracuse University Press.

  7. Kirk. (2009).

  8. Gomez, Leonel Narvaez. (2009.) “Twenty Years of Negotiating Peace.” In E. F. Babbitt and E. Lutz (eds.), Human Rights and Conflict Resolution in Context: Colombia, Sierra Leone and Northern Ireland. Syracuse, NY: Syracuse University Press.

  9. Kirk. (2009).

  10. Gomez. (2009).

  11. O’Flaherty, Michael. (2009). “Sierra Leone’s Peace Process.” In E. F. Babbitt and E. Lutz (eds.), Human Rights and Conflict Resolution in Context: Colombia, Sierra Leone and Northern Ireland. Syracuse, NY: Syracuse University Press.

  12. Ibid.

  13. Melrose, Joseph H., Jr. (2009). “The Sierra Leone Peace Process.” In E. F. Babbitt and E. Lutz (eds.), Human Rights and Conflict Resolution in Context: Colombia, Sierra Leone and Northern Ireland. Syracuse, NY: Syracuse University Press.

  14. Roht-Arriaza, Naomi. (2009). “Justice and Reconciliation after Conflict.” In E. F. Babbitt and E. Lutz (eds.), Human Rights and Conflict Resolution in Context: Colombia, Sierra Leone and Northern Ireland. Syracuse, NY: Syracuse University Press.

  15. US Department of State. (2013). “U.S. Relations with Sierra Leone.” Bureau of African Affairs fact sheet. http://www.state.gov/r/pa/ei/bgn/5475.htm.

  16. Ibid.

  17. Jarman, Neil. (2009). “From the Frying Pan to the Fire? Conflict Resolution, Human Rights, and Transitional Violence in Northern Ireland.” In E. F. Babbitt and E. Lutz (eds.), Human Rights and Conflict Resolution in Context: Colombia, Sierra Leone and Northern Ireland. Syracuse, NY: Syracuse University Press.

  18. Beirne, Maggie, and Fionnuala Ni Aolain. (2009). “Rights after the Revolution: Progress or Backslide after the Good Friday Agreement?” In E. F. Babbitt and E. Lutz (eds.), Human Rights and Conflict Resolution in Context: Colombia, Sierra Leone and Northern Ireland. Syracuse, NY: Syracuse University Press.

  19. Jarman. (2009).

  20. Hannum, Hurst. (2009). “The Impact of European Human Rights Jurisprudence on the Conflict in Northern Ireland.” In E. F. Babbitt and E. Lutz (eds.), Human Rights and Conflict Resolution in Context: Colombia, Sierra Leone and Northern Ireland. Syracuse, NY: Syracuse University Press.

  21. Jarman. (2009).

  22. Beirne and Ni Aolain. (2009).

  23. Jarman. (2009).

  24. “Top Mediator Defends Sierra Leone Deal.” BBC News, World-Africa, July 10, 1999. http://news.bbc.co.uk/2/hi/africa/390879.stm.

  25. Annan, Kofi. (1999). “Guidelines for United Nations Representatives on Certain Aspects of Negotiations for Conflict Resolution.” Unpublished internal memorandum, reprinted in 2006 UN Jurid. Y.B. Ch.VI.3.a, 496–497. http://www.un.org/law/UNJuridicalYearbook/index.htm.

  26. Nolan, Paul. (2012). “Northern Ireland Peace Monitoring Report, Number One.” Belfast: Community Relations Council.

  27. Moreno-Ocampo, Luis. (2007). Address at the International Conference. “Building a Future on Peace and Justice.” Nuremberg (June 25–27).

  28. For example, see Allen, Tim (2006). Trial Justice: The International Criminal Court and the Lord’s Resistance Army. London: Zed.

  29. Mnookin, Robert, and Lewis Kornhauser. (1978–1979). “Bargaining in the Shadow of the Law: The Case of Divor
ce.” Yale Law Journal 88: 950–997.

  30. Moreno-Ocampo, Luis. (2010). Keynote Address to the Council on Foreign Relations, Washington, DC: February 4. http://www.cfr.org/international-law/prepared-remarks-luis-moreno-ocampo-prosecutor-icc/p21375.

  31. Allen. (2006).

  32. See UNSC Resolution 1970. Adopted by the UN Security Council on February 26, 2011. Available at http://www.icc-cpi.int/NR/rdonlyres/081A9013-B03D-4859–9D61–5D0B0F2F5EFA/0/1970Eng.pdf.

  33. “Gadhafi Indictment Hinders Peace: African Union.” (2011). CBC News, July 2. http://www.cbc.ca/news/world/story/2011/07/02/world-african-union-gadhafi.html.

  34. “The African Union and the Libyan Crisis: Putting the Records Straight.” Europafrica.net. (November 16, 2011). Available at http://europafrica.net/2011/11/16/the-african-union-and-the-libyan-crisis-putting-the-records-straight.

  35. “Calling Assad War Criminal Could Complicate Things: Clinton.” (Feb 28, 2012). American Free Press. Available at http://www.google.com/hostednews/afp/article/ALeqM5i50pDliskePtEXyJD8ncceBA0H5A?docId=CNG.683471e4b7e0cab16ecec9aeec294019.51.

  CHAPTER THIRTY-TWO

  TERRORISM Negotiating at the Edge of the Abyss

  Guy Olivier Faure

  Terrorism is not a new phenomenon. The word comes from the French Revolution with the idea of a group imposing a new power through terror, but the practice is much older. It was already a method used in the biblical times by the Sicarii (“dagger men”) Zealots, a Jewish group spreading terror among “collaborators” of the occupying Romans. In the mid-nineteenth century, terrorism became a common tool in Russia for anarchist groups in their struggle against the czar. French anarchists, then Irish Republicans, then Jewish groups in the Middle East took their turn in inducing fear to enforce their views. More recently, Palestinians, and jihadists have illustrated this type of action to meet their political or religious purposes.