Reducing the price of peace: the human rights responsibilities of third-party facilitators.

• Author: Saliternik, Michal
• Position: Introduction into IV. Theoretical Foundations for Facilitator Responsibility, p. 179-209

ABSTRACT

Peace agreements can bring about serious injustices. For example, they may establish oppressive regimes, provide for the transfer of populations, or allocate natural resources in an inequitable manner. This Article argues that third-party facilitators--states and international organizations that act as mediators, donors, or peacekeepers--should have a responsibility to prevent such injustices. While the primary duty to ensure the justice of peace agreements resides with the governments that negotiate and sign them, directing regulation efforts only at those governments may prove insufficient in protecting human rights under the politically constrained circumstances of peacemaking. It is therefore necessary to complement the primary duties of negotiators with the secondary

duties of facilitators, who can afford to contemplate long-term justice and sustainability considerations and often have considerable influence on negotiator decisions.

This Article presents a novel theory of sovereign authority that provides a normative basis for holding facilitators responsible to help prevent peace-related injustices. In accordance with this theory, the governments of all the world's countries should collectively bear the responsibility for ensuring the compatibility of peace agreements with human rights norms. Peace facilitators, however, should be singled out to discharge this collective responsibility in view of their potential contribution to peace injustices and their special ability to prevent them. This Article explores ways to translate facilitator responsibilities into concrete legal obligations. The potential contribution of such obligations to promoting just and sustainable peace is demonstrated through a critical analysis of the treatment of justice issues in past peace negotiations in Bosnia, Sierra Leone, and Afghanistan.

TABLE OF CONTENTS I. INTRODUCTION II. PEACE FACILITATORS: WHO THEY ARE, WHAT THEY DO, AND WHY THEY DO IT A. Mediators B. Donors C. Peacekeepers D. Facilitator Motivations III. PEACE FACILITATORS AND JUSTICE CONSIDERATIONS IN BOSNIA, SIERRA LEONE, AND AFGHANISTAN A. Bosnia 1. Exclusionary Power-Sharing Arrangements 2. Imposed Return of Refugees and Displaced Persons 3. Exclusionary Negotiation Process B. Afghanistan C. Sierra Leone D. Learning from Facilitator Experiences IV. THEORETICAL FOUNDATIONS FOR FACILITATOR RESPONSIBILITY A. The Traditional Model of Sovereignty B. The Popular Model of Sovereignty C. The Human Model of Sovereignty 1. The Principles of Human Sovereignty 2. The Moral Underpinnings of Human Sovereignty 3. Toward an International Duty to Intervene 4. The Problem of Collective Responsibility V. IMPLICATIONS OF THEORY FOR PEACE NEGOTIATIONS A. Facilitators' Contribution to Peace Injustices and Their Capacity to Prevent Them B. Human Rights Obligations to be Enforced by Facilitators C. The Obligations of Non-State Negotiators and Facilitators D. Problems and Criticisms 1. Undermining Self-Determination 2. Undermining Peace Prospects VI. FROM THEORY TO PRACTICE: AVENUES FOR DEVELOPING AN INTERNATIONAL PEACEMAKING REGIME A. A Peacemaking Convention B. International Organization Resolutions C. Intra-Organizational Codes of Conduct D. National Foreign Assistance Guidelines E. The Role of Facilitators in Developing Peacemaking Norms VII. CONCLUSION I. INTRODUCTION

The idea that peace agreements can bring about serious injustices is somewhat counterintuitive. Everyone knows that "peace has a price" and that it may involve painful compromises, but few would connect such compromises with human rights violations or other serious forms of wrongdoing. Admittedly, the injustices that result from peace agreements are usually less severe than the injustices of the wars that they seek to end. Present-day peace agreements no longer include devastating arrangements that brutally infringe on human life or dignity, for example by endorsing slavery. (1) However, contemporary peace agreements can still undermine justice principles and human rights norms in a variety of ways. For example, they can prescribe the establishment of an exclusionary or oppressive regime, provide for the transfer of populations, allocate natural resources in an inequitable manner, or fail to adequately address human rights violations that took place during the conflict. In addition to the contents of peace agreements, the processes through which they are achieved can also be plagued with representation deficits, biased or corrupt decision making, and other justice problems.

While the final decision of whether to adopt an injurious arrangement or pursue shady negotiation procedures belongs to the government or quasi-governmental entity that negotiates and signs the peace agreement, that decision is often influenced by various incentives that third-party facilitators--states, international organizations, and other actors that are involved in peace processes as mediators, donors, or peacekeepers--provide, or refrain from providing, to the negotiating parties. To give a few examples: In the negotiations that led to the Dayton Agreement on Bosnia, the U.S. government used military and economic incentives to induce the negotiating parties to cooperate with international criminal proceedings and to facilitate refugee return. The U.S. government thereby promoted justice considerations; however, it also supported exclusionary power-sharing arrangements that the European Court of Human Rights later deemed to violate human rights norms. (2) In the Bonn peace talks on Afghanistan, the United Nations made sure to invite representatives from all major Afghan ethnic, religious, and geographic groups. But at the same time, the United Nations accorded legitimacy to the exclusion of women from the talks. (3) In Sierra Leone, UN mediators endorsed power-sharing arrangements that assigned central governmental positions to murderous militia leaders, yet they opposed the granting of blanket amnesty to the same persons and took measures that paved the way for future prosecution of militia leaders. (4) Looking to the future, in the midst of the 2013-2014 U.S.-brokered Israeli-Palestinian peace talks, Israel's Minister of Foreign Affairs stated that his basic condition for supporting a peace agreement would be that its terms would include the transfer of the Israeli "Triangle" area, which is densely populated by Israeli Arab citizens, to the Palestinian state. (5) Despite the discriminatory nature of his statement, which sought to deprive Israeli Arabs--an ethnic minority group--of their citizenship, the U.S. government remained silent. It is hard to tell how the U.S. government will react if a transfer of the Triangle is seriously contemplated in future negotiations.

This Article argues that international law should recognize the responsibility of third-party facilitators, like the United States and the United Nations, to prevent peace-related injustices. It presents a novel theoretical framework for establishing and developing this responsibility. The heart of this framework is human sovereignty, a humanity-oriented conceptualization of the principle of state sovereignty. The theoretical framework asserts that governments bear a primary duty to promote the well-being of their citizens and, at the same time, also a secondary duty to promote the well-being of non-citizens if the non-citizens' own governments are unable or unwilling to do so. Applied to the context of peacemaking, human sovereignty requires that a government engaged in peace negotiations would attempt to reach a just peace agreement that reflects equal concern and respect for all its citizens. At the same time, all the world's other governments--the "international community" as a whole--should bear a secondary responsibility to ensure that the negotiating government lives up to its duties toward its citizens. However, since attributing such responsibility to the international community is susceptible to collective action problems that may lead to inaction, it is necessary to identify specific actors within the international community who will have the major duty of discharging this responsibility. This Article asserts that third-party peace facilitators should be selected for this task in view of their potential contribution to peace injustices and their special ability to prevent them.

The theory of third-party facilitator responsibility put forward in this Article thus recognizes that the main duty to prevent peace injustices resides with the governments that negotiate and sign peace agreements. However, this Article also assumes that to focus exclusively on the responsibilities of politically-constrained governments seeking their way out of a bloody conflict may prove inefficient in protecting affected interests. To fill this protection gap, this Article establishes the complementary duties of third-party facilitators, who can afford to contemplate long-term justice and sustainability considerations, and who are often able to use significant side-payments or sanctions to induce negotiators to adhere to justice principles. As we will see, directing regulation efforts at third-party facilitators is all the more crucial when the facilitators implicitly or explicitly encourage negotiators to adopt injurious arrangements or pursue exclusionary negotiation procedures that they believe to be necessary for the consummation of peace.

Although this Article advocates heavier human rights duties of facilitators toward the populations affected by peace agreements, it acknowledges the need to balance these secondary duties against the primary duties facilitators still have toward their own populations. It also acknowledges the need to respect the self-determination of countries undergoing a transition from war to peace, as well as the need to allow negotiators and facilitators sufficient maneuvering space to find an agreed solution to the conflict. This Article...