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The Peace Treaty Initiative aims to fill a “critical gap in international law” by “developing an international law of peace negotiation”, as Mark Freeman explains in the introductory post of this symposium. This ‘gap’, i.e., the absence of an overarching international legal regime that governs peacemaking, has attracted significant attention in the last decade or so. As international policy instruments, such as the United Nation’s (UN) Guidance for Effective Mediation, increasingly situate the practice of peace negotiation and mediation within “within normative and legal frameworks” (2012, p.16), scholarly projects have advanced the notion that there is an emerging law of peacemaking (which is positioned partly or fully within international law depending on the project).
Two scholarly projects are particularly notable in this respect: lex pacificatoria and jus post bellum. The former is concerned with (i) the attribution of hybrid legal status to peace agreements concluded to end internal armed conflicts, which would otherwise not be considered international agreements proper under international law due to the lack of treaty-making capacity of non-state armed groups (NSAGs), and (ii) the identification of a normative framework within which a principled pragmatic approach to peacemaking can be nurtured (see generally here).As a multi-scholar project, jus post bellum is a ‘broader church’ and, therefore, has been conceived in many different ways: for instance, as a new legal regime that fills the “systemic gap” in international law within the jus ad/in/post bellum continuum, an umbrella term that only brings together relevant aspects of existing international law, or an interpretive framework (see generally here and here). Overall, to the extent that it relates to peace negotiations and agreements, the project is preoccupied with the insertion of certain normative standards into the pragmatic practice of peacemaking to achieve “just” or “sustainable” peace.
The Initiative’s draft Framework Convention on Conflict Prevention and Resolution (the draft Convention) is distinct from the scholarly projects of lex pacificatoria and jus post bellum both due to its ambition and modesty. On one hand, the Initiative is an ambitious project as it aims to codify an international law of peace negotiation in the form of a binding treaty. In that, it has a more ‘legalised’ approach to peacemaking, as opposed to the two projects that opt for Latin expressions instead of explicitly using the term ‘law’ and emphasise that the lex or jus is not intended to correspond to a fully-fledged body of law (Bell, p. 287; Stahn/Easterday/Iverson, p. 3). On the other hand, the Initiative is more modest with its ‘thin’ normativity and, as such, escapes the usual pitfalls of a ‘legalised’ approach to peacemaking: it upholds peace negotiation and dialogue as normative objectives, but does not pronounce on who must (not) be involved in negotiations or what is (not) to be negotiated. It endeavours to create a ‘peacemaking space’ within which conflict parties and mediators negotiate, compromise, and reach an agreement, benefiting from a facilitative structure.
In the remainder of this post, I will offer brief reflections on two articles of the draft Convention: Article 8 on privileges and immunities, and Article 12 on substantive law and presumption of conformity with international law. The procedural and substantive guarantees provided, respectively, by these articles are significant for the Initiative’s normative objective of facilitating ‘negotiated peace’ and the pragmatic objective of doing so in a way that would not jeopardise the prospect of the draft Convention’s adoption as a binding treaty.
Negotiator and mediator privileges and immunities
Article 8 of the draft Convention provides a series of guarantees to those involved in negotiation and mediation in a Referred Situation: (i) conferral of privileges and immunities afforded under section 22 of the Convention on the Privileges and Immunities of the United Nations to mediators, (ii) conferral of privileges and immunities to negotiators and those providing mediation assistance according to criteria and procedures determined by the Secretariat, (iii) a presumption of compliance of a designated mediator with “any applicable prohibition against providing material support or resources to a non-state armed group”, and (iv) inviolability of the premises of negotiation and mediation.
As I have previously written on this blog, mediators and negotiators face legal and political challenges where the NSAG to be engaged with is designated as a terrorist organisation, in domestic law or by an international organisation, or when a state or NSAG representative to be involved in the negotiations is subject to an arrest warrant or summons issued by the International Criminal Court (ICC). The draft Convention promises to bring legal clarity that international law does not prohibit negotiations with such groups or persons, not only by creating a negotiation imperative in the resolution of potential or actual non-international armed conflicts (Article 4), but also by guaranteeing the above-mentioned privileges and immunities. Such legal clarity is particularly important as the political challenge is often greater than the actual legal challenge due to excessive and inaccurate claims that international law prohibits negotiations with ‘terrorists’ or (alleged) ‘war criminals’.
Arguably the more prominent legal obstacle in this respect stems from domestic laws that criminalise engagement with designated NSAGs. The so-called “material support” statute of the US, which establishes certain forms of material support, including “trainings in humanitarian and international law to peacefully resolve disputes” to designated terrorist organisations as a federal crime and provides for extraterritorial jurisdiction, is but one example. Article 8’s presumption of compliance with “any applicable prohibition against providing material support or resources to a non-state armed group” promises to counter the detrimental impact of domestic criminalisation on peace negotiation and mediation.
Presumption of conformity
Article 12(1) of the draft Convention states that “the outcome of the negotiation or mediation shall enjoy a Presumption of Conformity [“in favor of the international legality of the process and outcome of a Referred Situation” (Article 1)] whenever it produces a signed accord on the principal substantive agenda items”. Article 12(2) provides for an exception: under certain conditions, the Conference of States Parties may decide that the terms of a peace agreement as they relate to “atrocity crimes”, i.e., genocide, war crimes and crimes against humanity, shall not benefit from the presumption of conformity.
The exception seems to fulfil two functions. First, the draft Convention allows the Conference of the States Parties to rule out the adoption of a blanket amnesty covering atrocity crimes as a tool available to parties in peace negotiations. Second, by not explicitly requiring criminal accountability for atrocity crimes, it also allows the adoption of negotiated justice modalities that may be more conducive to the resolution of an armed conflict or local ownership in a particular situation. For instance, an amnesty conditional upon cooperation with a truth commission or serving non-criminal sanctions, such as in the South African or Colombian models, can potentially benefit from the presumption of conformity under Article 12, provided that it is not unnecessary for the prevention and resolution of armed conflict, does not lack appropriate accountability conditions or obligations, or does not neglect to address the needs of victims.
Article 12(2) can thus be viewed as an act of balancing between normative and pragmatic requirements in peace negotiation, or simply as a recognition of the normative legitimacy of non-criminal forms of justice. In this respect, further clarification and reflection on the implications of the presumption of conformity for the principle of complementarity and prosecutorial discretion under the Rome Statute of the ICC would be welcome. In addition, what the presumption of conformity means for other areas of normative tension in peacemaking, for instance, between consociational powersharing and human rights, would merit attention by the Initiative.
In his Concurring Opinion in The Massacres of El Mozote and Nearby Places v El Salvador, former Judge Diego García-Sayán of the Inter-American Court of Human Rights opined that “Peace as a product of a negotiation is offered as a morally and politically superior alternative to peace as a result of the annihilation of the opponent. Therefore, international human rights law should consider that peace is a right and that the State must achieve it.” Although the draft Convention does not go as far as to stipulate peace as a right, it arguably follows the essence of García-Sayán’s statement.
Whether the pragmatism of the Peace Treaty Initiative is sufficient to convince states to adopt the draft Convention as a binding treaty remains to be seen. On the other hand, the Initiative’s pragmatism might prove a challenge to garnering the support of more normatively ambitious actors in peace mediation, like the UN or the European Union, which promote inclusivity in peace negotiations and resultant peace agreements, for instance, in relation to the inclusion of women, youth and civil society in peace negotiations or diverse substantive guarantees ranging from human rights to environmental protection in peace agreements.
Regardless of its ‘adoption fate’, however, the Initiative has opened an important discussion about establishing the negotiated resolution of internal armed conflicts as a normative objective in international law. The innovative and inclusive global consultation process led by the Initiative is invaluable in itself, even if it eventually only reveals the diversity of views on the relationship between peace negotiation and (international) law.