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In peace negotiations, amnesties and justice are often presented as mutually exclusive tools. In reality, amnesties are systematically on the table and should be given a ‘presumption of conformity’ with international law, under clear rules, argue the authors of this article.

For many international lawyers, judges, and human rights actors, the ‘peace versus justice’ debate has long been resolved in favour of justice. They can point to a ‘growing tendency in international law to see amnesties as unacceptable’; to the overturning of longstanding amnesties in some countries; and to the institutionalisation of an anti-amnesty policy at the United Nations as indicators of how certain concessions on justice are no longer permissible even when adopted to ensure peace and to prevent new atrocities.

In recent years, the UN Special Rapporteur for Transitional Justice and some international human rights NGOs have sought to consolidate and expand on these claims by arguing that international law now prohibits other forms of leniency for international crimes, such as pardons, early release measures, or alternative sentencing. Several international courts have also argued, since the late 1990s, that an international prohibition on amnesties is crystallising.

Yet, conflict resolution efforts within many societies often paint a different picture, rarely resolving them according to these supposed new standards. Just in the last few months, broad amnesties have been granted as part of peace efforts in Chad and Ethiopia. Elsewhere, existing amnesties are being implemented, and amnesty decisions by the truth commissions in The Gambia and the Seychelles are pending. Even where amnesties are omitted from peace deals, or explicitly exclude serious crimes, de facto impunity is often entrenched because of the huge number of violations and perpetrators that the system needs to face.

Restoring flexibility to negotiators

All told, the continued use of amnesties by states, together with the categorical reluctance of states to codify any international prohibition of amnesties, undermine any notion that an anti-amnesty norm has become settled law. Indeed, as recently as 2019, the International Criminal Court (ICC) stated that ‘international law is still in the developmental stage on the question of acceptability of amnesties’.

The African Union, in turn, has highlighted that ‘in the fragile post-conflict setting, a balance and compromise must be struck between peace and reconciliation on the one hand and responsibility and accountability on the other’. Some legal scholars go further by questioning whether the turn to criminal justice has had negative consequences for the human rights field. Likewise, Third World Approaches to International Law have highlighted the risks of imposing Western approaches to criminal justice.

Peace negotiators, mediators, and supporters of conflict resolution are understandably left uncertain about how much scope they have for flexibility on justice or amnesty provisions in peace agreements. This can result in them often holding differing interpretations of what the law requires or feeling pressured to adopt positions that could be destabilising to peace negotiations and implementation. Just as consequentially, the uncertainty reduces the will and scope for exploring creative solutions that might provide reasonable compromises in processes that by their nature require mutual concessions.

From a conflict resolution and atrocity prevention perspective, this is an unsatisfactory status quo.

Legal parameters for conditional amnesty

The Peace Treaty Initiative, a new global project of the Institute of Integrated Transitions, may offer a way out through the introduction of a concept known as the “presumption of conformity”. The concept is embedded in the indicative text of the proposed new treaty, which seeks to develop an international law to incentivise conflict prevention and resolution.

Specifically, the indicative text creates explicit minimal criteria and a clear process for the possibility of creating a positive presumption in favour of the international legality of the amnesty reached within a peace negotiation.

How does the mechanism work? The answer is found in Article 12 of the indicative text. It provides an automatic presumption of conformity to the entirety of a signed accord on the principal substantive agenda items of any peace negotiation that is handled through the treaty’s unique referral process; but it carves out a limited exception vis-à-vis atrocity crimes in the event that a majority of States Parties declares that any conditional amnesty provisions: “(i) are unnecessary for achieving the objective of this Convention, particularly the prevention or resolution of armed conflict; (ii) lack appropriate accountability conditions or obligations in regard to relevant individuals and entities; and (iii) neglect to incorporate targeted measures addressing the needs of victims, including with respect to missing and disappeared persons”.

It is worth unpacking this.

Favouring peaceful conflict resolution

First, a legal presumption is a not a legal finding, but a device more akin to a rebuttable premise. Its main effect, in this case, would be to place the burden of proof on the challenger rather than the defender of the conditional amnesty. However, nothing about the presumption would oust the authority of the court to make an independent final judgement on the legality of the amnesty.

Second, because the overarching goal of the new treaty is to incentivise the choice of peaceful conflict resolution over confrontation, the presumption has the dual benefit of 1) creating a default signal through international law that favours the legal stability of peace agreements, and 2) avoiding the kind of red lines on amnesty prohibition that produce the negative effects already mentioned.

Third, the presumption of conformity forces an active deliberation by the Conference of States Parties concerning any conditional amnesty, in which it must weigh the cost of precluding the application of the presumption (which could potentially jeopardise the entire peace accord) against the cost of allowing it (which could disincentivise legal challenges to the amnesty). That weighing process is not open-ended, but rather guided by the explicit but flexible criteria set out in the indicative text.

Untying the Gordian knot of peace and justice

The concept of the presumption of conformity is not reflected in any existing international treaty. Yet, it will be a familiar concept to most international lawyers because of its place in domestic law. Courts everywhere from Germany to Poland, South Africa, the United States, Israel, and most Commonwealth countries apply to their domestic laws a presumption of conformity with international law.

The indicative text of the proposed new treaty borrows the concept mainly because of its utility for making the path of dialogue more attractive – including on the Gordian knot of peace and justice. By providing the parties to a conflict with the prospect of a positive legal signal that a signed agreement will presumptively be respected, the principle can help nudge conflict parties towards negotiation.

While some may wonder if it is advisable for the Conference of States Parties to appear as “judge” of the legality of any conditional amnesty included in a peace deal reached within the terms of the new treaty, in fact the only “judgement” within its remit is whether or not to accord the presumption of conformity to the negotiated amnesty. The Conference has no authority to determine legality or illegality as such.

Participating in the treaty´s development

For now, the indicative text offers the chance for a new direction in the unresolved debate on amnesties. And because the text is the subject of an inclusive global consultation process, improvements can be made. For example, a future version of Article 12 could provide greater or lesser detail in the criteria of accountability and attention to victims; increase or decrease the voting threshold of the Conference of States Parties; or contemplate any other number of potential adjustments.

Regardless, the indicative text – including the presumption of conformity it proposes – should take us beyond the stale and unsatisfactory debates that persist as regards amnesty, peace and justice. In doing so, it may also help to increase awareness of the independent needs of negotiation itself – including the fact that it is not a process in which one side can simply impose its will on the other. This logically militates in favour of a future treaty that provides for tailored legal incentives, increased legal flexibility and greater legal clarity on key questions of international law that negotiators systematically encounter. Let the new debate begin.

Originally published in Justice Info as part of a series of three articles on IFIT´s Peace Treaty Initiative.

The reality of war is back in the heart of Europe. This makes it all the more important to talk about peace – which means making the choice of negotiation more attractive, more organised and more flexible. After more than three years of research, the Institute for Integrated Transitions (IFIT) has launched the Peace Treaty Initiative. In a series of three articles, contributors close to the initiative disclose for Justice Info their ideas to revitalize the debate on how to achieve peace and justice.

Today, conflict resolution efforts are facing one of the most challenging climates since the end of World War II. Civil wars and insurgencies have proliferated around the globe and violent extremism continues to rise despite more than twenty years of global efforts to combat terrorism. The past decade especially has witnessed grave violations of international humanitarian law and massive human atrocities, with perpetrators feeling an increased sense of impunity.

At the same time, the world is passing through a period of inconclusive wars. Long-gone is the era of clear victory and defeat. Also, while interstate wars have declined, intrastate armed conflicts have sharply risen. Although disputes between countries persist – and the current conflict regarding Ukraine is a reminder of their global dangers – they are generally less likely to escalate to interstate wars. Meanwhile “grey zone warfare” and cross-border meddling are ascending.

While the last century’s great wars resulted in setting international rules to regulate conduct during conflicts, and significantly advanced international law (especially IHL), international norms around conflict – and the institutions meant to face them, particularly the UN Security Council – have fallen devastatingly short in resolving conflicts. This trend could deepen in the context of the evolving great-power competition.

A reframing effort of such norms is overdue. The world needs a legal instrument to aim at encouraging and supporting peace negotiations for the peaceful settlement of internal armed conflicts.

The Middle East: Nexus of the World´s Challenges

The Middle East has the dubious distinction of hosting some of the world´s most persistent and dire conflicts and crises. It is home to the Israeli-Palestinian conflict, one of the most enduring struggles. The UN Secretary General declared the situation in Yemen to be the world’s worst humanitarian crisis with 80% of the country’s population in need of humanitarian assistance and protection. Meanwhile, Syria has by far the largest forcibly displaced population worldwide: 6.6 million refugees and more than 6 million internally displaced people, constituting around half the Syrian population. The conflict in Libya is characterised by a weak government, a constellation of militias, and a political class in which many are not only backed by foreign governments but also divided across ideological and tribal lines. Meanwhile, Tunisia, Sudan, Lebanon, Algeria, and Iraq are facing varying degrees of instability and civil strife. The Iranian nuclear file and Iranian policies are also a source of major tension and instability in the region.

Today, not a single conflict in the Middle East is on a solid path towards a political solution. A series of UN peace envoys have come and gone to no avail, while several of the parties involved continue to pay lip service to political settlements but act in a manner more consistent with a military solution. The polarisation witnessed in the region, with different countries supporting opposing parties in conflicts, is making it exceedingly difficult to achieve political settlements.

There are also fears that international and regional fatigue may result in a situation whereby the main players would be satisfied with transforming many of these conflicts into never-ending low intensity conflicts with dire implications for the future of regional stability.

Furthermore, in the wake of the first wave of the Arab revolutions that started in 2010 in Tunisia, followed by Egypt, Syria, and Yemen, there were countries in the region that supported these revolutions and others that considered them a great threat to their own stability. A second wave erupted with similar complications. Despite Lebanon and Iraq witnessing up close the near-total destruction of Syria, the Lebanese and Iraqi people still launched their own wide-scale protests. Similarly, the Sudanese and the Algerians took to the streets, undeterred by the neighbouring chaos in Libya and the challenges facing Egypt. This may not be the end: the outbreak of a third wave of revolutions should not be excluded.

The absence of justice, rule of law and good governance help explain these public uprisings. For the most part, and with few exceptions, the region has been moving in the wrong direction. This is the case in almost every area – from conflict resolution to democracy, human rights, social cohesion, and economic and social development – and there are no signals that this trend is going to be meaningfully reversed in the foreseeable future.

International Rules for Peace Negotiation

One of the initiatives that can partly help the region in dealing with the absence of rule of law in conflict resolution is the Peace Treaty Initiative, the aim of which is to bring about a unique multilateral treaty on peace negotiations. Already there is an indicative text of the treaty, which is now the subject of an inclusive consultation process involving governments, multilateral organisations, academia, faith-based entities, NGOs and think tanks from around the world.

The guiding motivation and premise behind the text is that the international system needs a set of rules and legal instruments to incentivise and support conflicting parties and other relevant actors toward accepting negotiations as a critical means to achieving peace in intrastate conflicts and prevent the prolongation of suffering and atrocities before they become protracted conflicts.

The indicative text does not impose negotiations on states, neither does it reduce the flexibility or confidentiality that negotiating parties require. Indeed, the parties maintain control over all decisions, including the content of any accord.

The participation of non-state armed groups in negotiations may result in some form of recognition. However, the indicative text does not confer any form of legitimacy on them or alter their legal status. Instead, it provides a support mechanism and a system for the validation of the key choices made by the negotiating parties – for example, through conferring a presumption of conformity with international law if a peace agreement meets certain criteria.

The indicative text is only a starting point and even as it undergoes changes it will never constitute a silver bullet for conflict resolution. Visionary leadership and political will, for example, are almost always a necessary ingredient in achieving a peaceful settlement of conflicts. But advancing the Peace Treaty Initiative is a much-needed undertaking.

The global picture of conflict resolution is rather gloomy, especially in the Middle East. Priority should be given to new ideas for terminating endless wars and conflicts and ending the suffering of tens of millions of people. The external shock of Covid-19 should have provided the motivation and heightened the urgency to explore every possible avenue to end conflicts, but unfortunately has not. If leaders do not deliver on the hope for peace, stability, and development, this not only will feed extremism, but will result in the eruption of one violent upheaval after another.

The advancement of international criminal law, despite the challenges faced, has been a positive development. It owes its success to European leadership. There is hope that the Peace Treaty Initiative could lead to a dialogue on how international law can go further and contribute to resolving conflict in a more effective manner. Modest as this may be, the initiative is a constructive first step in the right direction on the long road to advance rule of law in conflict resolution.

Originally published in Justice Info as part of a series of three articles on IFIT´s Peace Treaty Initiative.

In the Armed Groups and International Law blog’s Peace Treaty Symposium, IFIT’s Mark Freeman and international law experts Juana Acosta and Asli Ozcelik Olcay discuss the opportunities presented by the Peace Treaty Initiative and some of the main substantive elements of its indicative text. Among other things, they examine the value add of having a treaty as opposed to other tools of soft law; the contributions the new treaty would bring to the peace versus justice debate; and the opportunities it would provide for negotiators and mediators who continuously face legal and security risks. 

Peace Treaty Symposium

By Mark Freeman

When it comes to conflict prevention and resolution, a critical gap in international law is holding us back as a global community. While there is international law to regulate armed conflict and war, no clear counterpart exists to encourage and support peace negotiations.

The Peace Treaty Initiative seeks to fill this gap by developing an international law of peace negotiation that would incentivise states to choose the path of dialogue when the prospect or reality of armed conflict arises. An indicative text  (password: 2021-PTI) has been developed, offering a first glimpse of what the proposed treaty could look like. It is now the subject of a wide-ranging global consultation process.

Certain premises guide the text. For example, an underlying normative premise is that negotiation and dialogue are beneficial to societies. Understanding them as valuable and even critical tools for conflict prevention and resolution explains why this text deliberately seeks to make negotiation and dialogue more attractive to governments – as well as non-state armed groups – when faced with real or potential armed conflict.

A second premise is more pragmatic. The goal of the Peace Treaty Initiative is to bring a multilateral treaty into being – as opposed to a set of voluntary guidelines – in order to fill an essential gap in international law. This implies a drafting logic that is primarily sensitive to the needs and concerns of UN member states given that, without their buy-in, the treaty cannot materialise as law. At the same time, the perspective of non-state armed groups – the habitual counterparts of governments in peace talks – must also be anticipated.

A third premise informing the draft treaty is structural. Negotiation itself has intrinsic needs, constraints and limitations. Any new international law that seeks to bring about more recourse to negotiation, rather than less, must take these into account. For example, negotiation necessarily implies mutual concessions and difficult compromises; by definition, it is not a process in which one side can simply impose its will on the other. This logically militates in favour of a treaty that provides for tailored legal incentives, increased legal flexibility and greater legal clarity on key questions of international law that negotiators systematically encounter.

In that regard, the indicative text of the treaty sets out to offer targeted benefits for three key junctures of the negotiation process: the beginning, middle and end.

Negotiations for peace are hard to get underway. They involve very significant political risks and controversies for governments. They also involve a myriad of complex questions of policy and process design. As such, any international law seeking to make dialogue and negotiation more attractive must help to de-risk the foreseeable political costs and complications for any government that announces it will be sitting down with a sworn enemy that the population has come to fear or repudiate after years of war, vilification, and violence.

If and when a negotiation process has begun, a new set of needs arises. Negotiations are inherently iterative processes, with ups and downs, interruptions, crises and complications emerging throughout, in processes that often last for years. It is therefore important for any international law of peace negotiation to give them as much stability, support, and political and legal embedding as possible, so that at every juncture, the process has a higher chance of advancing to the next stage.

And if ultimately a peace deal is reached – a rare but often transcendental moment – the response of international law cannot be unknowable. To the contrary, if and when agreements arise, it is critical that they have as much legitimacy, stability, and recognition as possible, taking into account the most reasonable and objective readings of applicable international law.

In this regard, it is evident that the proposed new treaty on peace negotiation cannot undo existing international law, but must instead co-exist with it. This may, however, have diverse implications or meanings.

For example, where existing law is unclear, the new treaty can provide greater clarity (for example, around critical questions inside peace talks such as conditional amnesties for atrocity crimes). Where existing law lacks an institutional framework to ensure progressive and structured implementation, the new treaty can provide one (for example, by creating an advisory support unit; a conference of states parties; a secretariat; and state-level mechanisms to ensure national preparedness, education and training on negotiation and dialogue). And where existing law is absent, the treaty can create new definitions, norms and procedures (including a situation referral procedure; international privileges and immunities for mediators; a “presumption of conformity” with international law when peace deals meet certain minimal criteria; and a special provision allowing non-state armed groups to adopt negotiation and dialogue standards).

The first step, however, is for the treaty to exist – since without it, the identified gaps and limitations of current international law cannot be overcome, and the new and targeted incentives for negotiation cannot materialise.

The big question is: will a critical mass of UN member states take up this cause? The short answer is that they will, provided that the new international law of peace negotiation is conceived as a help and not a barrier to their national interests, offering more benefits than burdens, and with a global rather than Western perspective. That is why, among other things, the incipient global consultation process for the Peace Treaty Initiative is so important. Through it, governments as well as multilateral organisations, academia, faith-based entities, think tanks and NGOs from around the world will have the opportunity to provide political and technical input on the indicative text of the proposed treaty, through participation in regional and thematic workshops and high-level consultation events.

When all is said and done, we must admit that we are in an era of novel and growing kinds of armed conflict. In addition, new armed groups keep arising and shape-shifting in ways that endanger civilians in every part of the world and are harder to fit into our old archetypes. Moreover, when the fighting occurs, it is no longer on a well-marked battlefield with clear separation between combatants and civilians.

We need to face these and other hard realities of armed conflict with the most proven tool that history has provided: the tool of negotiation. It deserves all the protection and incentives that international law can offer; and it requires us to think beyond the existing laws of war to an imagined law of conflict prevention and resolution.

Originally published in Armed Groups and International Law.

The Peace Treaty Initiative: Facilitating the pathway of negotiation through international law

By Asli Ozcelik Olcay

October 27, 2021 – 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).

Read the complete article on Armed Groups and International Law.

Peace Treaty Symposium: A Reaction to Mark Freeman’s Post

By Juana Acosta

October 28, 2021 – I want to start by saying that I have always maintained that international law should be a tool rather than an obstacle to peace negotiations; particularly in a world where there are still more than 74 non-international armed conflicts across 25 countries. But if we look at international law today, this is not exactly the case. First, as Freeman points out in his post, there is no international law on negotiation as a means of preventing or ending non-international armed conflicts.

Read the complete article on Armed Groups and International Law.