Counterterrorism and international criminal justice transformed the space for mediators in armed conflicts by systematically excluding the “bad guys” from the negotiating table. This is not productive for stopping wars.
By Pierre Hazan
Since the end of the Cold War, mediation in armed conflicts has become a near-automatic tool in conflict resolution. But mediation is facing inextricable dilemmas for ending conflicts, torn between the need to be inclusive while excluding war criminals and terrorist organizations. This has made it ever more challenging to end conflicts – including that today in Ukraine.
The development of mediation occurred in the broader context of the "Pax Americana" particularly after the fall of the Berlin wall in 1989 – a period of relative peace and stability under U.S. influence – leading to the liberal peace paradigm. Peace no longer meant simply the cessation of hostilities but also, from a Western perspective, the re-establishment of the rule of law, representative democracy, free market capitalism, and development. From this perspective, peace required input from civil society and NGOs, reinforcing the idea of an inclusive multi-track approach to conflict resolution.
Simultaneously, the struggle against impunity by Western governments in the 1990s led to the creation of hybrid and international criminal tribunals. The most revolutionary aspect of the construction of a global justice system has been the ability of international tribunals to prosecute perpetrators of international crimes in wartime. Thus, the maxim: "no peace without justice." This created a profound contradiction between mediators, on the one hand, and prosecutors, on the other, in their respective search for peace and for justice. How can you simultaneously prosecute a leader you need at the negotiating table? How could the 1995 Dayton Peace Agreement, which put an end to the terrible war in Bosnia and Herzegovina, have been possible without Serbian leader and architect of the war, Slobodan Milošević?
“War on terror” made the work of mediators more difficult
Since September 11, 2001, and the “war on terror,” the work of mediators has become even more difficult. European and U.S. diplomats are prohibited to speak to “terrorist organizations,” including Hamas, which has been in power in Gaza since the 2006 elections (considered as fair, according to the EU.) “Terrorists” are supposed to be isolated, criminalized, and prosecuted.
With this came the risk that those who would enter into a dialogue with the "bad guys" would themselves be prosecuted. This was underscored by the U.S. supreme court decision Holden v. Humanitarian Law Project (2010) that found any third party, even non-U.S., who would offer "training, advocacy, and expert advice" to a “terrorist organization” as illegal and punishable. This created unsurmountable challenges for mediators. Moreover, this catch-all counterterrorist approach does not differentiate within this "terrorist" galaxy and does not address the reasons why some of these organizations represent part of the population. It only led to an exacerbation of conflicts in Afghanistan, in the Sahel regions and in other places, and eventually to failure.
Hence, Pax Americana developed into an ideological discourse that defines categories of actors who are included and others who are excluded. The result is that the “devil,” or the ones who are described as “the enemy of mankind” as Cicero two thousand years ago said, is no longer accepted at the negotiating table: a massive impediment for mediators trying to stop wars. This normative system puts mediators in a bind, as they necessarily are pragmatic and need to integrate the main belligerents in negotiations.
Time for war, time for peace
Richard Goldstone, a former prosecutor at the International Criminal Tribunal for the former Yugoslavia (ICTY), recognizes that the existence of an international justice system constitutes "a price to pay" by complicating peace processes. According to this logic, war crimes committed by Russian forces in Ukraine could theoretically lead to an indictment of the head of state, namely Russian leader Vladimir Putin, by the International Criminal Court on the principle of command responsibility – a legal doctrine of hierarchical accountability for war crimes. This, however, risks preventing any negotiation and provoking an escalation of the conflict. It would be politically destructive, but normatively consistent.
As morally difficult as it may be to accept, there is a time for war and another for peace and justice. Documenting war crimes and collecting evidence during a conflict is one thing but claiming that a tribunal contributes to the restoration of peace is simply not true. Peace comes from negotiation or military victory, not from international justice.
Western governments and the United Nations have adopted overly rigid rules of exclusion. To a limited extent, they have externalized this contradiction between the normative approach of exclusion and the need to include “terrorist organizations” by outsourcing peace processes to private diplomacy. Private mediation organizations can lead dialogue processes, but they don’t have the means nor the legitimacy to lead a peace process to its conclusion.
Time to take stock
Pax Americana is fading away and the liberal peace paradigm has produced mixed results. It has helped to give a stronger voice to civil society in peace processes, but many countries in Africa and in the Middle East have not seen the results in terms of democracy, free market, and development. Also, the liberal peace paradigm has been far from being “liberal” and “peaceful.” The “regime change” policies in Iraq and in Libya have led to a deregulated use of force, weakening multilateral diplomacy. If the "benevolent hegemon" does not meet the democratic standards it intends to impose, why would others, those who are far less concerned with the laws of war and human rights, subscribe to them? The wars in Syria and now Russia's aggression in Ukraine tragically show this, with the indiscriminate bombing of civilian populations in Aleppo and Mariupol, among other places.
Pax Americana contributed to building a system of exclusion that has transformed the space for mediation. Not only did this normative and security-based approach prove to be inconsistent, but it also contributed to radicalizing the opposition between legitimate actors and those who were excluded. Ongoing experiences in Colombia and the Sahel suggest that local dialogue and peace processes, grounded in social realities, are more productive in reducing violence.
Pierre Hazan is Senior Adviser with the Centre for Humanitarian Dialogue in Geneva and Richard von Weizsäcker Fellow of the Robert Bosch Academy.
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