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The peace process - some imperatives and analogies

by Dr. Ruwantissa Abeyratne

It is a platitude to say that a lasting peace does not only mean the cessation of war and hostilities but also inevitably involves the resumption of a normal civilian lifestyle without the fear of attack on one's person. Any peace process should therefore ineluctably be geared toward a revival and renewal of social intercourse.

Inherent to this activity is the awareness on the part of all parties to the process that the sovereignty of a state is inviolable and sacrosanct. Therefore, whatever be the nature of negotiations and the geographic parameters involving peace talks and irrespective of whether a particular process transcends boundaries or is rooted domestically, the recognition of international legal principles relating to sovereignty as an analogy is the first step toward a lasting peace.

Sovereignty is rooted in international law. The genesis of international law may well lie in the seminal European Charter - the Peace of Westphalia - which was signed in 1648. This document recognized unrestrained sovereignty of states and effectively consolidated the concept of world unity through sovereign states.

The next significant step was the Concert of Europe - a haphazard system of consultation between the great countries of Europe - which was established by the Settlement of Vienna in 1815 and followed by the Congress of Aix-la Chapelle in 1818. The Concert emerged as a corollary to the Napoleonic Wars and provided a forum which maintained and balanced power between the European nations for a century. One of the salient features of the Concert was that although the treaty admitted of consultation and conference on the devolution of power among states, its findings or decisions had no obligatory effect on the great powers. This perceived inadequacy of the Concert resulted in its impotence and inability to impose adherence by states of its findings or decisions and is often attributed to States' having a free hand in doing as they pleased to each other in World War 1.

As history would demonstrate time and time again, the aftermath of a major disaster brings fresh thinking for reformation and revival. After World War 1, states adopted the Paris Settlement of 1919, partially as atonement for the bankruptcy and inability of the Concert to ensure uniformity in international accord and also to infuse new ideas and rules of conduct for the international community. The Paris Settlement, which retained for the most part the spirit of the Peace of Westphalia, set the tone for the establishment of the League of Nations which further strengthened the bonds of unity between states, based on the wartime collaboration between Associated and Allied Powers. The League of Nations adopted the principle that undertakings of international law would actively determine conduct among governments, without abdicating jus ad bellum, or the right of war. This in turn resulted in failure, as was seen in 1939, when, without reference to the League of Nations, Britain and France hastened to come to Poland's assistance when it was attacked by Germany.

Second imperative

Once the inviolability of the State is established, recognized and entrenched, the parties concerned may wish to go to the second stage - that of abandoning the rigidity caused by the non existence of a mediator at all times. For instance, once two or more parties negotiate a settlement for peace in a given territory whether domestic or cross boundary, if they are the only parties remaining to ensure the continuity of peace, there is a strong possibility of a breach of peace occurring as there would be no reinforcement machinery. A good analogy of this safeguard can be borrowed from the United Nations paradigm. The main aim of the United Nations, as per its Charter, is to maintain international peace and security, and to that end: take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.

It was clear that the United Nations has recognized the application of the principles of international law as an integral part of maintaining international peace and security and avoiding situations which may lead to a breach of the peace. The United Nations Charter lists the achievement of international cooperation in solving international problems of an economic, social, cultural or humanitarian character, as one of the purposes of the United Nations. The problems that the United Nations is mandated by its Charter to solve should therefore be necessarily of an international nature. Article 2(7) of the Charter expands the scope of this philosophy further when it provides that the United Nations is not authorized to intervene in matters which are essentially within the domestic jurisdiction of any State, without prejudice to the right of the United Nations to intervene in matters which are within the domestic jurisdiction of any State, and apply enforcement measures where there is an occurrence of acts of aggression, a threat to the peace or breach thereof.

Therefore, the United Nations cannot intervene in instances where natural disasters such as famine, drought or earthquakes render the citizens of a state homeless, destitute and dying of starvation unless invited by the states concerned. The principle however cannot be too strictly interpreted, as natural disasters may usually lead to breaches of the peace. In such instances the United Nations Security Council may, under Article 42 of the Charter, take such actions by air, sea or land as may be necessary to maintain or restore international peace and security. For such instances, Article 43 of the Charter provides that all members of the United Nations, to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces assistance and facilities, including rights of passage necessary for the purpose of maintaining international peace and security.

Here again, action can only be taken for the maintenance of international peace, effectively precluding any direct intervention in a domestic issue.

Resolutions adopted by the United Nations Security Council relating to Somalia( S/RES/794 (1992) 3 December 1992) and Bosnia Herzegovina (S/RES/770 (1992) 13 August 1992) clearly demonstrate the parameters of the scope of United Nations' intervention under its Charter. In the case of Somalia, the United Nations Security Council recognized the unique character of the situation in the country, where conflict and violence demanded that all concerned take all necessary measures to facilitate the measures of the United Nations, its specialised agencies and humanitarian organizations to provide humanitarian assistance to the affected population in Somalia. In the case of Bosnia and Herzigovina the Security Council recognized in its resolution that the situation in the two states constituted a threat to international peace and security. In both Resolutions, the Security Council had to function within its mandate of intervention only in instances of conflict and breaches of the peace.

It is by no means suggested that the United Nations model should be imported into a domestic setting without the necessary revisions as necessary. Rather, the concept of a group of persons or entities acting as "watchdog" should be considered within the political environment of the territory concerned. What this would ensure is the basic safeguard of having a body other than the parties to the peace agreement, empowered to mediate and or intervene in a breach of the peace, within acceptable bounds.

Third imperative

Any great disaster makes way for lessons to be learnt. Safeguards have to be placed to ensure human rights are protected in the event of a breach of peace. Invocation of the principles and their inclusion of what is now called "the law of outrage" in certain international law circles and their embodiment in a negotiated peace treaty could be a useful consideration for a peace process. The law of outrage is rooted in the famous (or infamous) Nuremberg trials, which prosecuted perpetrators of atrocities during World War 2 committed particularly against the Jews. The fundamental principle of "outrage" is that the trials were not only about prosecuting wrongdoers but also about imputing to those who just "stood by"and did nothing while the atrocities were being committed a certain moral reprehensibility that should not go unpunished.

The casualties of an international or domestic war can vastly be reduced if hostilities can be monitored by a suitably appointed or recognized mechanism which is acknowledged under a peace treaty to be present in a territory to report on violations of human rights. Ensuring that the principles of "civilized warfare"(an unfortunate oxymoron) are applied would be a critical factor in preventing unnecessary injury to civilians caught in a conflict between warring parties.

The negotiation of a peace treaty between two or more warring parties, and the specific agreements which they might enter into should as of necessity be entered into according to the particular circumstances of each case. However, in every peace negotiation, there are certain human considerations which are compelling enough to warrant the application of general principles that would ensure protection of the civilian populace concerned. These principles are universal and not to be compromised. It is not a ceasefire, or the achievement of temporary peace that carries the day in the end. It is the commitment of all concerned that the peace negotiated and achieved lasts and endures, while ensuring the safety of a country or territory.

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