This book is a project by the United Nations University’s Centre for Policy Research, a Tokyo-based think tank which contributes research aimed at helping the UN address pressing global challenges in the fields of peace and securityanddevelopment.
Eighteen years ago, with generous help from Magdalen College, Oxford and from New York University, and with the personal support from Ian Brownlie,RobertDann,ThomasFranck,VaughanLowe,DavidMalone,and Henry Schermers, I had the chance to interview veteran diplomats and scholars, including Sir Brian Urquhart, Pamela Aall, Hans Corell, Chester Crocker, Fink Haysom, Tamrat Samuel, Richard Solomon, Álvaro de Soto, and Peter van Walsum, for what became my first book, Diplomatic Dispute Settlement (2008). While that work did not use the material on mediation, their help and words inspired me on the path of peace processes, working first with the UN and Ávaro de Soto in Cyprus, then with the International CivilianRepresentativeinKosovo,PieterFeith.ThankstoIsabellBüschelof CERIC, in 2009 Professor Marie-José Domestici-Met bravely entrusted her graduate class at Université Aix-Marseille III to me, which gave me the academic shelter needed to start writing Negotiating Peace. I then got to work with AECOM International on popular consultations in Sudan, and with the African Union on a border dispute settlement mechanism for the continent.WiththeEuropeanUnionandRosalindMarsdenIthenworkedon various conflicts in Sudan and South Sudan. Subsequently at the UN I learned from, among many others, Norman Girvan and Susanna Malcorra on Guyana/Venezuela, David Gressly and Bert Koenders in Mali, Jan Eliasson and Ivan Šimonović in Ukraine, and Staffan de Mistura on Syria. This book benefits from interviews with, and other contributions from, among others: George Anderson, Sabina Avasiloae, Roxaneh Bazergan, Mario Buil-Merce, Luc Chounet-Cambas, Chris Coleman, Roeland van de Geer, Martin Griffiths, Ingrid Hayden, Tom Hill, Julian Hottinger, David Hutchinson, Jean-Pierre Kempeneers, David Lanz, Elisabeth Lindenmayer, Frank Majoor, Brendan McAllister, Nicolas Michel, Mark Muller, Laurie Nathan, Dag Nylander, Wafula Okumu, Kelvin Ong, Katia Papagianni, Meredith Preston McGhie, Johannes Schachinger, Herman Schaper, Annelies Verstichel, Peter van der Vliet, Marc Weller, and William Zartman. I learned much from my dear colleagues in the 2013–15 UN Standby Mediation Teams: Rina Amiri, Michael Brown, Hassen Ebrahim, Antje Herrberg, JeffreyMapendere,Pierre-YvesMonette,ChristinaMurray,JohnPacker,and Marie-Joëlle Zahar, as well as from the highly capable staff at the Mediation
Support Unit led by Robert Dann and Stephen Jackson and the Policy Planning and Mediation Division of the UN Department of Political Affairs led by Levent Bilman and Teresa Whitfield. I thank the Dag Hammaskjöld Library in New York and Jeroen Vervliet and Niels van Tol of the excellent Peace Palace Library in The Hague. Niels Blokker and Nico Schrijver entrusted me with their graduates at Leiden University, which resulted in research assistance from James Ayre, Vasco van den Berg, and in particular Felicia Fehrentz. Generously, David Malone and Sebastian von Einsiedel at United Nations University (UNU) offered to support this book project. I am especially grateful to those who reviewed and commented on parts of the draft, including Rosanne van Alebeek, Juan Jeannet Arce, Jasper Boon, Ivonne Duarte-Peña, Jason Gluck, David Hutchinson, Meeri-Maria Jaarva, Andrew Ladley, Cecile van Manen, John Packer, Salvatore Pedulla, Teresa van het Meer González, Christina Shaheen, Francesc Vendrell, Olai Voionmaa, and Talia Wohl. I owe much to Sebastian von Einsiedel and Cale Salih of UNU, who provided excellent comments and suggestions on nearly everything I wrote. Others have contributed much along the way, including Basje Bender, Joya Rajadhyaksha, and above all my beloved mother, Mrs TinyKoopmans-Gros,towhomthisworkisdedicated.
Dr Sven M. G. Koopmans (Amsterdam, The Netherlands, 1973) is a mediation practitioner, diplomat, international lawyer, academic, and politician. A former member of the United Nations’ Mediation Standby Team, Senior Mediation Expert to the UN Envoy for Syria and Political Advisor to the European Union Special Representative for Sudan and South Sudan, he has been part of numerous negotiation, mediation, and/or constitutional processes, including for Burundi, the Central African Republic, Cyprus, Darfur, Guyana/Venezuela, Kosovo, Mali, Sudan/South Sudan, Syria, and Ukraine. He also worked as a barrister (advocaat) at Clifford Chance LLP. He studied law, history, and politics at Leiden University and Magdalen College, Oxford. Supervised by professors Ian Brownlie and Vaughan Lowe, he obtained a doctorate in international law at Oxford University, resulting in Diplomatic Dispute Settlement (2008), referenced in all leading textbooks. He is currently a Member of Parliament in the Netherlands and occasionally teaches at Leiden University and elsewhere.
How to negotiate peace? Answers could solve many of the world’s greatest crises and save many lives. They could bring stability, justice, and prosperity Answers, where they may exist, will differ greatly from situation to situation. Nevertheless, anyone involved in the search for peace may find strength in looking at relevant practice, norms, and ideas. This book is writtentohelpinthatsearch.
Even though Herodotus already described mediation by the Corinthians between Athens and Thebes in the fifth century BC, 1 only recently is peacemaking developing into something of a profession. International organizations, some governments, and a number of non-governmental organizations are currently creating centres of mediation expertise. They invest in persons to become mediators, or to be trained in certain aspects of peace negotiations. Mediation involves diplomatic skill, political understanding, legal expertise, organizational ability, financial resources, patience, persistence, flexibility, creativity, and a thick skin. With all those requirements, it is important for practitioners to come together and learn from each other, from the past, and from those with good ideas. The professionalization of peace negotiations helps to identify common ground, enablingthewritingofthisbook,andmakingitnecessary.
This handbook draws on my personal experience in dealing with numerous international disputes, as well as on that of many colleagues and predecessors. It builds on historic records, academic analysis, and recent policy documents such as the United Nations’ Guidance for Effective Mediation. 2 This work includes examples and advice from all over the world, mostly from the last few decades, but also from antiquity where relevant. It discusses peace negotiations in a comprehensive manner. Political, legal, and organizational perspectives cannot be taken in isolation.
This book discusses all these elements in combination, with a single guiding question:whatcanbedone?
This book is not about when to engage in negotiation or mediation. Any majorinternationaldisputerequiresattemptsatresolution.3 Evenifaconflict cannot be solved at a particular moment it may still be possible to contain it, or to agree humanitarian measures, for instance, to soften its impact.4 Negotiations between the parties are always important, even if they cannot always start immediately. A mediator can start work if there is a mandate, either explicit or implicit. The question is only what can be done. This handbook, therefore, is a practice-oriented discussion of contemporary possibilities for mediators to mediate, and for disputing parties to negotiate, includingwhenresolutionmayseemfaroff;infact,itnearlyalwaysdoes.
The options and the limits of international law are relevant in all international disputes, even if they surface in different ways. The claims of the parties, also if not expressed in legal terms, are usually linked to what they believe they are entitled to by law. If not, they probably demand a change in the law. Moreover, negotiators operate in a world of law: what is practically possible also depends in part on what is legally possible. For mediators, therefore, it is important to identify and build on any practices and norms that may guide them in finding unique solutions. This book therefore also addresses legal issues, where they are important for successful negotiations.
This handbook is meant as a guide and a reference for mediators, negotiators, diplomats, scholars, students, press, and public alike. It is therefore light on footnotes.5 The final sections suggest further reading on various sub-topics. Historical and contemporary examples are an integral part of the book. When longer than a few lines, they appear indented, in smallerfont.
This guide adopts the perspective of the international peacemaker. It discussessuchquestionsas:Whoshouldmediate? Whenistherighttimefor a peace conference? Should difficult issues be negotiated first? Can a mediator impose a deadline? How to build a strategy? What can a mediator do to build trust between enemies? How to draft an agreement? And: Who can help the mediator? Because as French Prime Minister Georges Clemenceau wrote after the negotiations following World War I: ‘With due apologies to the memory of Atilla and his kind, but the art of letting people liveinpeaceisevenmoredifficultthanthatofmassacringthem.’6
1.2 Mediation,Politics,andPeace
This book deals with high-level international political conflicts. This includes disputes taking place only within one country, provided there is a degree of international involvement, for instance because the mediator is from abroad.7 In the context of this book, conflicts qualify as ‘high-level politicalconflict’basedonapragmaticassessmentofsubjectmatter(e.g.not trade disputes, in principle, unless they have wider implications), high-level involvement (i.e. is there major governmental interest), and implications (e.g. is it or can it lead to armed conflict or a major diplomatic crisis). This includes violent conflicts, but also, for instance, high profile non-violent border disputes. This is approximately the range of cases in which international mediators operate. The terms ‘peace negotiations’ and ‘peace agreements’arethereforeusedinabroadsense.8 Occasionallytheymayalso refer to negotiations related to a conflict that is not (yet) violent, and to agreementsthatdonotinthemselvesbringpeace.9
Also ‘peace’ means different things to different people. In the words of Martin Luther King Jr.: ‘Peace is not merely the absence of tension, but the presence of justice.’10 King held that real peace is not present ‘until justice, goodwill, brotherhood, love, yes, the Kingdom of God are established upon theearth’.11 The quotation already makes clear that such an ideal of peace is not attainable in our current world. Moreover, King’s desired end-state is not everyone’s ideal. It is a source of conflict in itself. For the purpose of a mediator, the objective of peace must be more limited. Thomas Hobbes, writing in 1651, approaches the nature of peace from the opposite angle, that ofwar:
For as the nature of Foule weather, lyeth not in a showre or two of rain; but in an inclination thereto of many dayes together; So the nature of War, consisteth not in actuall fighting; but in the known disposition thereto, during all the time thereisnoassurancetothecontrary.AlothertimeisPEACE.12
In Hobbes’ view, therefore, peace is the situation where there is no fighting, nor a disposition towards fighting. This view of peace offers the basis for a realistic, and therefore more modest objective for a mediator The immediate objective may then be to help get the parties to stop fighting. It can mean focusing on a ceasefire first and a political agreement later, but this not necessarily so. Sometimes, before parties can genuinely agree to stop fighting, it is necessary to first agree on a political solution. In the medium term, the mediator can hope to remove the inclination to fight, by bringing the parties to a durable settlement. In the sense of this book, a peace agreement is an agreement that is intended to come closer to either the immediate goal of ending the fighting, or the medium-term goal of ending
the inclination to fight. This also includes agreements intended to avoid fightingtobeginwith.
Yet no agreement or third party can bring about the long-term ideal of a ‘real’ peace, whether in the meaning given to it by Martin Luther King Jr. above, or that of comprehensive ‘positive peace’ as envisaged by scholars as Johan Galtung.13 As suggested by Erasmus in 1517, real peace is an enduring relationship between people, based on security, justice, and wellbeing.14 To that, peace agreements and mediators can only aspire to make a smallcontribution.
1.3 TheDiversePracticeofPeace-Making
Mediation practice is widespread and diverse. International political disputes are often about similar questions of autonomy, power, territory, and resources, but the particulars of each conflict are unique. No conflict party believes that its situation is the same as that of another party in another conflict. Problems, parties, and mediators vary. So will the answers to any questions about negotiating peace. Nevertheless, this handbook assumes that itispossibletoidentifysomecommonground.Exactmediationproblemsdo not repeat themselves, but there are similarities between them that can make comparisons of cases interesting. Among the relevant issues are questions of strategy,tactics,organization,andoptionsandlimitsofinternationallaw.
The mediators may be international organizations, foreign governments, non-governmental organizations (NGOs), or individuals. The parties may be two or more States fighting a conventional war, such as Ethiopia and Eritrea from 1998 to 2000. They may be a national government and one or more armed movements, such as in the fight, from 1964 to 2016, between the government of Colombia and the FARC. A conflict can involve State actors as well as competing religious, ethnic, and terrorist groups, such as in Syria today. States and opposing forces may be highly organized—as was the case in the war between Iraq and the forces of the international coalition in 1991. Or, as in the Central African Republic in 2014, it may be near-impossible to know who, if anyone, controls the fighting. Disputes can also be purely political, without violence, but still require international mediation, such as the ongoing dispute between Greece and (the Former Yugoslav Republic of) Macedoniaaboutthelatter’sname.
Many aspects of disputes are themselves commonly disputed. In conflicts concerning the status of Abkhazia or Kosovo, and in the case of separatism in eastern Ukraine, a key question is whether parties participate in negotiations as an independent government, as a sub-state actor, or not at all.
Also describing talks as ‘talks’ may be controversial. In Spain’s contacts with the terrorist group ETA it was politically unacceptable to the government to speak of ‘negotiations’, which would imply speaking about possible substantive concessions: a ‘conversation’ was the better term.15 Sometimes even the term ‘dispute’ is disputed. Some fear that acknowledging the existence of a ‘dispute’ gives the opponents’ assertions more credit than is due. Potential facilitators should be aware, for instance, that Guyana and Venezuela experience a ‘controversy’ over the validity of their border settlement, while Belize and Guatemala have a ‘differendum’ regardingtheirs.
It was in the course of papal mediation in the war over Milanese succession (1452–4) that diplomacy professionalized though the establishment of permanent embassies.16 Erasmus suggested that, similar to medical doctors specialized in treating disease, there should be persons with practical knowledge about the causes of war and the means to end it.17 Yet it is only now, after five and a half centuries of traditional diplomacy, that mediation is emerging as a profession in its own right. Peace negotiation is currently, slowly, in the process of acquiring its own principles, established institutions, and dedicated practitioners. At the same time, violent conflicts increasingly end with a settlement rather than with a military victory: while in the 1980s seven times more conflicts ended in military victories than peace settlements, today around five times as many conflicts end in peace settlements as in victories.18 Even though this does not in itself demonstrate the influence of professionalization of peace-making, it at least suggests the importanceofpractice.
Nevertheless, governments and international organizations alike still often treat peace-making as a form of traditional diplomacy rather than as a diplomatic discipline requiring special skills and capacities. This has occasionally led to the appointment of high-level envoys who lack relevant skills and experience, while many mediation teams deploy without sufficient political, technical, and administrative support. Few have had enough practical training,andevenfewerhavelearned thelessonsofthepast.19 This handbookaimstohelpremedythesedeficiencies.
2 Negotiation,Mediation,andOtherMeans
There are many ways to peacefully resolve international disputes, including negotiation, mediation, conciliation, and judicial settlement. While these methods are often discussed separately, they can be used in combination. Creativepeaceprocessescanincludearangeofsettlementoptions.
This chapter addresses questions such as: How can parties settle their differences without the use of a facilitator, mediator, or judge? What are the main options for conflict settlement with the help of a third party? The two concluding sections address the questions: How can negotiations work in an urgentcrisis?Howandwhencanpeaceconferenceswork?
2.1 Negotiation
Partiesmayattempttoaddressanysituationbetweenthemwithoutinvolving anyone else. Negotiation is then the main choice, but it can come in various forms. Parties may engage in direct, official talks aiming for an agreement, but can also opt for secretive talks through unofficial backchannels It is also possible to talk with the other side without aiming for agreement: such ‘consultation’ or ‘exchange of views’ is discussed separately (see §2.1.2 ConsultationsandExchangesofViews).
Negotiation is a broad concept, discussed throughout this book. Most forms of third party dispute settlement, such as conciliation and mediation, are also forms of negotiation. They are different because of the involvement of a third party. In the absence of a third party, negotiations can also be called ‘direct talks’. Negotiations imply the discussion of an exchange of concessions or the creation of mutual benefits. The aim is to come to an agreement. Starting negotiations assumes that each party is willing to compromise. If this is not the case in practice, initiating talks may result in frustration:sometimesitmaybebettertodeclareanissuenon-negotiable.
For instance, the United Kingdom refuses to negotiate with Argentina about the sovereignty over the Falkland Islands,1 and with Spain about control over Gibraltar. This offers the clarity that the United Kingdom will not consider offering these territories up, and therefore avoids creating false hope on the other side. Nevertheless, it is in the interests of the British also to engage in talks about issues concerning, for instance, transport and safety Such dialogues must then be carefully framed to make clear what is and is not a topicfordiscussion.
Negotiation can be necessary even when a dispute cannot be settled by negotiation: the parties can only through negotiation agree on what other meansmaybeusedtoaddressthedisputeoritsconsequences. According to international law, when parties have a legal obligation to negotiate, for instance when they have committed to negotiate a further agreement, thepartiesmust:‘conductthemselves [such]thatthenegotiations are meaningful, which will not be the case when either of them insists upon itsownpositionwithoutcontemplatingmodificationofit’.2 Eachparty‘must in good faith pay reasonable regard to the legal rights of the other’.3 Examples of violations of good faith include the unjustified breaking off of the discussions, abnormal delays, disregard of the agreed procedures, and systematic refusals to take into consideration adverse proposals or interests.4 Nevertheless, an obligation to negotiate does not imply the necessity of reaching an agreement: parties should try to come to an agreement, but are notlegallyboundtoreachone.5
Controversially, the International Court of Justice made an exception with regard to nuclear disarmament. It was held that the obligation to negotiate nuclear disarmament in good faith, as contained in art. 6 of the Treaty of NonProliferation, ‘is an obligation to achieve a particular result—nuclear disarmament in all its aspects […]’.6 This unique exception must be due to the singularimportanceofnucleardisarmamentforworldsecurity 7
Negotiations can take place between two parties, but may also involve three, or hundreds, all having a stake in the outcome, and none acting as an outside third party.8 Multi-party negotiations without third parties are also the norm in international organizations when drafting a joint resolution on a political crisis, just as much as when negotiating, for instance, the Paris Agreement onClimateChange.9 Insuchsettingsthechairmanofthemeetingoftenplays the role of the relative outside player, gathering and reconciling views. Still, the chairman is often (though not always) at the same time a representative of one of the parties to the negotiations, only having coordinating responsibilities.
2.1.1 Backchannels
A backchannel, like a peace conference (see §2.4 Peace Conferences), is not an independent form of dispute settlement. It is a secret and informal undertaking that normally forms part of a larger negotiation process, but goes ‘around the back’ of the usual diplomatic traffic.10 It circumvents bureaucratic institutions, protocol, and other sensitivities. Backchannel negotiations may involve diplomats (and so be another form of regular diplomacy), or may employ others, such as academics or journalists. They are, however, only genuine backchannel talks when there is some link with officialdecisionmakers.11
During the 1962 Cuban Missile Crisis, which was triggered when the USSR placed nuclear missiles on Cuba, US President Kennedy and Soviet Chairman Khrushchev opened several backchannels in order to avert a possible US nuclear response. Among others, Kennedy attempted secret negotiations with Cuban President Castro via the Brazilian government.12 Separately, UN Secretary-General U Thant tried to mediate.13 Meanwhile, Alexander Fomin, Counsellor at the Soviet Embassy in Washington DC invited an American journalist, John Scali of ABC, for lunch. During the meal Fomin suggested to Scali the possibility that the USSR would withdraw the missiles under United Nations supervision, if the United States would commit never to invade Cuba.14 Scali passed the message on to the White House, and it became the basisforthecompromisethateventuallyendedthecrisis.
A backchannel is an important means for parties to engage in conversation, often to test the waters for a more substantive or public round of talks. A backchannel can thus enable parties to see whether it is possible to start genuinely negotiating a solution. It is possible for backchannels to coexist withformalnegotiationstakingplaceelsewhere,involvingotherpersons.
A backchannel implies communication between adversaries through inauspicious, informal means, outside of the view of formal or publicly visibletalks.Abackchannelallowsfordeniabilityofspecificoffersandeven of the existence of a negotiation process. Established channels involve many eyes, some of which may be opposed to what is being discussed, and may then organize an internal opposition. This was an important reason why Henry Kissinger, US President Nixon’s National Security Advisor, used a backchanneltonegotiateadétentewithChinaintheearly1970s.15
Talking somewhere else, away from the official negotiating table, offers more flexibility. If the participants are not high-level diplomats, but the talks leak out, it may be possible to deny any meaning to what was said, for instance, on the basis that the interlocutor was not authorized, or was not competent to make a certain proposal. Successful backchannels also allow
the parties todecide tokeep the results asecret. If,however,the parties want topubliclybuildonthesuccessofabackchannel, theymayeitherrevealthat a backchannel has existed, or, if circumstances allow, they can create a more traditional, public round of talks, that then presents the backchannel results asitsownoriginalwork.16
Backchannels are therefore a means to avoid seeming to confer legitimacy on opponents, on a proposal, or a negotiation. Sometimes it is not possible to have official talks, for instance because the opponents are not formally recognized, or because it is against domestic law to contact a certain party. The informality of a backchannel can, if secrecy is maintained, offer a way to avoid problems of status, protocol, and even legality. Backchannels can be set up by the parties themselves, or can be created by or with the help of third parties. If the third party is also involved in managingtheprocess,thebackchannelcanbeaformofgoodofficesoreven mediation.
In the early 1990s Israeli law explicitly forbade talks with the PLO. Only a deniable backchannel between politically connected academics, taking place in Norway, could help overcome the need for the parties to talk. Once the tentative, non-official talks started to make progress more people of higher rank were let in on the secret. Eventually this resulted in the Oslo Accords of 1993.17 Some argue that the fact that the agreements came as a surprise was a shortcoming that led to the Accords’ eventual failure. As the negotiation process did not involve some important decision makers, these persons could easilyarguethattheirviewswerenottakenintoaccount.Theycouldclaimthat a much better agreement would have been possible. It is impossible to judge whether such opposition would not have occurred in any case. It is clear, however, that without the Oslo backchannel, the Oslo Accords would not have beenpossible.
In 2007 Norway took this approach one step further, by attempting to become a backchannel for preliminary talks between the Taliban in Afghanistan and the Western powers and Afghan government fighting them. The West and the Afghan government were not informed of the attempt at talks. Elements in the government of Pakistan, the host country for the secret discussions,appearin2010tohavehadaroleinderailing thetalksbeforethey couldgetfar.18
In a mediation process, the disputing parties may find it useful to have a backchannel as an alternative channel of communication outside of the view of a mediator Among other things it can help the parties to assess whether the messages the mediator conveys from one party to the other are indeed reliable. Often, however, the parties trust the mediator more than each other, so that the meaning of such backchannels is limited. It is not uncommon,
Exploring the Variety of Random Documents with Different Content
