The Necessity For Regulation Of Faith-Based Organizations In Rwanda

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

EDITORIAL NOTE *

The author of this article works at the United Nations High Commissioner for Refugees; the views expressed here are his own and do not reflect the official position, past, present or future, of the United Nations or of UNHCR. The article defends state regulation of religious organisations in a particular national context; the assessment of that policy reflects the author’s own perspective, and this journal’s editorial position is neutral.

ABSTRACT *

This article defends state regulation of faith based organisations in Rwanda as a justified exception to the separation of church and state. The author begins from the constitutional guarantee of religious freedom and the limitations placed on it, and then examines the role of the churches before and during the genocide committed against the Tutsi in 1994, alongside their subsequent contribution to reconstruction and reconciliation. The growth of prayer houses from ten recognised churches at independence to some fifteen thousand by 2018 is examined, together with the reasons for it, including disillusionment with the established churches and the search for support that smaller congregations offered. The law of 2018 is then set out in detail: the requirements for legal personality, the qualifications required of preachers, restrictions on political activity and on the content of preaching, financial supervision and its relation to money laundering, and the powers of the Rwanda Governance Board and local authorities to warn, suspend leadership and revoke legal personality. The author identifies gaps in the law, particularly concerning the collection of offerings and prophetic practice, and recommends review of the monitoring system.

KEYWORDS *

Rwanda, faith based organisations, religious freedom, regulation, genocide against the Tutsi, Rwanda Governance Board, separation of church and state, preacher qualifications, money laundering, prayer houses, public order, reconciliation

INTRODUCTION

A topic like the necessity of regulation of faith-based organizations in Rwanda can be a hot debate between the conservatives who perceive that regulation as a state’s interference with religious freedom and those who advocate for the state’s intervention to safeguard public security and maximize the interests of the public. The 19th century marked a significant separation between the Church and the state; the Church refrained from exercising the power of the state, and the principle of separation of state and Church was spread in different corners of the world. The Constitution of the Republic of Rwanda grants freedom of religion and worship in public. On the other side, the Church created a dark image in Rwandan history by playing a leading role in separating the Rwandans, creating hatred based on imagined and subjective ethnic classes, and creating and spreading the genocide ideology. The regrettable result was the genocide that ravaged the lives of more than a million Tutsi in less than a hundred days in 1994. After 1994, the government of Rwanda strived for the country’s reconstruction, promoting unity and reconciliation among Rwandans. Since then, many faith-based organizations have been established, more than 15,000 prayer houses by 2024, thus welcoming different followers.

The increase of these faith-based organizations has not been free from intra-church conflicts originating from mismanagement of resources, discrimination among the followers, favoritism, and robbery based on misinterpretation of the scriptures, to name a few. In 2018, a law empowered the Rwanda Governance Board to govern all faith-based organizations, from registration and issuing legal personality to monitoring their compliance with applicable laws and sanctioning accordingly. Since then, many churches have been closed for various reasons, including those mentioned above and the lack of adequate infrastructure and safety. Against this backdrop, I argue that the state’s intervention in institutional religion as an exception to the principle of separation of Church and state is necessary to ensure peace, security, and public order.

In doing so, I will briefly overview the historical development of religions in Rwanda, the necessity and scope of regulation of faith-based organizations, the challenges, and the way forward.

MAIN CORPUS

An overview of the historical development of religion in Rwanda

Before I discuss the necessity of regulation of faith-based organizations in depth, it is critical to give an overview of the history of religion in Rwanda. In this discussion, I reflect on the fundamental principles governing religious freedom and its role in the genocide perpetrated against the Tutsi in 1994 and in the post-genocide era.

Freedom of religion as a fundamental right under Rwandan law

The Constitution of the Republic of Rwanda is the supreme law in Rwanda; it establishes binding principles and fundamental rights entitled to people that other laws must implement. One is freedom of conscience and religion, granted to all Rwandans. Article 37 of Rwanda’s Constitution specifies that “Freedom of thought, conscience, religion, worship and public manifestation thereof is guaranteed by the State in accordance with the law.” However, Article 41 conditions and limits the way rights and freedoms are exercised. It reads: “In exercising rights and freedoms, everyone is subject only to limitations provided for by the law aimed at ensuring recognition of and respect for other people’s rights and freedom, as well as public morals and public order.”

Separation of politics and religion

Rwanda is a secular country that grants freedom of conscience and religion, as I discussed above, once legal requirements are fulfilled. Rwanda’s Constitution requires politics and religion to remain separate and warns against basing themselves on discrimination. The law governing faith-based organizations clarifies that no organization, umbrella, forum of umbrellas, or ministry is allowed to engage in political activities to gain political power, organize debates to support political organizations or candidates, register, or use any other means to support candidates for any public office. Conversely, Article 14 recognizes that an organization, an umbrella, a forum of umbrellas, or a ministry can partner for development with government institutions.

As I introduced earlier, I reiterate that these conditions and limitations in the Constitution suffice to recall the negative legacy that churches and political parties left in Rwanda. They created and spread hatred and discrimination among Rwandans as a long-term basis for the genocide that killed more than one million Tutsi in less than a hundred days in 1994. On a positive note, churches played another role in the country’s reconstruction, forgiveness, and promotion of unity and reconciliation among Rwandans after the genocide, as I will briefly discuss below. That catastrophic experience obligates Rwanda to take preventive measures in all aspects.

A double-sided role of religion in the genocide committed against the Tutsi in 1994

Religious teachings played a double-sided role in the genocide committed against the Tutsi in 1994: they played a lamentable role in the planning and executing of the genocide, and they contributed to the country’s reconstruction through different social and economic development programmes, promoting unity and reconciliation among Rwandans. I will briefly discuss these two sides of the coin in the sub-sections below.

The role of churches in the planning and execution of the genocide

Aside from Islam, which was also marginalized, churches played a lamentable role in the planning and execution of the genocide committed against the Tutsi in Rwanda in 1994. Churches had promoted the killing of innocent Rwandans by favoring some ethnic classes to the detriment of others, played ethnic politics themselves by placing leaders in the regime, creating and spreading hatred among Rwandans, and actively supported the commission of the genocide. In that process, sending a message of ethnic discrimination became a significant focus of church teaching, while the church leaders had close ties with the political leaders of the time. Pope Francis recognized the religious role in the planning and commission of the genocide when he asked forgiveness for acts of some Catholic priests and nuns who had surrendered to hatred and violence while participating in the genocide. I agree that his courage in asking forgiveness also expressed the desire to recognize the failings of that period, which unfortunately disfigured the face of the Church, and may contribute to a purification of memory and promote, in hope and renewed trust, a future of peace. It is worth noticing how some individual members of religious groups demonstrated courage to protect civilians, sometimes at significant risk to themselves. Conversely, I am convinced that what churches ought to do in societies, regardless of other factors, is to help heal and rebuild the broken hearts of the community and of Christians as a whole.

The contribution of faith-based organizations in Rwanda’s reconstruction post-genocide

When considering faith-based organizations’ contribution to Rwanda’s reconstruction and development post-genocide, I echo Nwazuni’s argument that religion is considered the oldest institution contributing to society’s well-being. Since religion gives followers hope where there appears to be none, it makes it possible for followers to have hope for the future because its teachings relieve the pains people encounter today. After the genocide committed against the Tutsi in 1994, religious groups and associations contributed to greater understanding and tolerance by participating in interfaith meetings, organizing activities under the auspices of religious umbrella organizations or interfaith groups, and collaborating on public awareness campaigns and community development projects. These teachings helped some perpetrators understand and ask for forgiveness and helped survivors to forgive. The positive result has been unity and reconciliation among Rwandans, which supported other social and developmental programmes.

I agree with Court that if the interests of both Church and state were inextricably bound up with one another as a factor that was to play a fateful role during the post-independence period when the Church supported Hutu ethno-nationalism, and Church and politics became intertwined in preparing and committing genocide against the Tutsi in 1994, it should play a corresponding role in repairing what was broken after the genocide. Court reiterates Denis’ view that interpreting Rwandan history through the lens of ethnicity was integral to the politics of the missionaries and the institutional Catholic Church, which, rather than challenging the ideology of Hutu ethno-nationalism, supported the leadership of the two Republics after independence.

A reflective discussion on the increasing number of prayer houses in Rwanda post-genocide

Since Rwandan independence in 1962, the number of recognized churches has increased from ten churches in 1962 to 350 churches in 2012 and 15,000 prayer houses when the law regulating faith-based organizations was enacted in 2018. I can associate this rapidly increasing number of prayer houses with different factors, but I will emphasize the following.

First, religion and prayer contain words of comfort for people like Rwandans who were affected by the genocide committed against the Tutsi in Rwanda in 1994. Kubai discussed post-genocide Rwanda and the changing religious landscape and asserted that one of the reasons why many Rwandans left their traditional churches for new ones is a feeling of betrayal and disillusionment with the official Church. Some have said that they left the mainline churches because those churches did not try to protect those in danger.

Second, Rwanda is developing economically at a rapid pace, which engenders inevitable challenges for many people, such as stress, anxiety and pressure. Therefore, religious preaching and prayer deliver messages of hope and strength during these difficult moments. Kubai recounts expressions of some genocide survivors who moved to the new churches because these churches address individual members’ problems. In the face of grinding poverty, some churches are said to support their members spiritually, socially, and materially. These encourage their members to participate in the national reconciliation and political process and preach forgiveness as a religious requirement.

Third, after the genocide committed against the Tutsi in 1994, many Rwandans who had been in exile for a long time returned to their motherland. Rwandan business policy, security, cooperation, and strategic diplomatic relations with countries around the globe opened doors for many investors, visitors, and residents. Religion is a substantial part of the cultural aspect of a country. In that way, these newcomers introduced different kinds of worship from their countries of origin, implying an increase in prayer houses.

I conclude the discussion on these factors by agreeing with Kubai that the fast growth of these smaller worship groups is due to their rhetoric of hope, healing, and reconciliation, and their being more readily available to individual members. These worship groups provide spiritual and emotional therapeutic support for genocide survivors more than the larger and more traditional churches.

The growth of worship groups post-genocide: a matter for legislation

In the sections above, I discussed the double-sided role of religion prior to, during, and after the genocide in Rwanda, and particularly the extreme increase in the number of worship groups post-genocide and the followers’ reasons for joining these groups. Without being cynical, I argue that this rapid increase was a concern and a matter for legislation in a country that has a negative experience of genocide. Therefore, if there is a concern, there must be ways to address it. More particularly, a critical thinker can question the messages delivered to followers in these worship groups, given the memory of genocide ideology propagated by churches, the capacity of religious leaders and preachers, and security for the followers and the public.

The necessity and scope of regulation of faith-based organizations in Rwanda

In this section, I will discuss the country’s intervention to address the concerns of the growth and operation of worship groups introduced above. Mainly, I will discuss the intervention in enacting a law governing faith-based organizations. I will limit my discussion to the requirements it imposes to register such an organization, requirements for being a preacher, limitations on religious activities, monitoring of the financial aspect, and conflict resolution. These are the main factors on which the Rwanda Governance Board and local administrative entities based their decisions when closing several prayer houses, and continue to do so.

Legal requirements for a faith-based organization

The Rwandan legislator did not make any exception as to the type of religion of the faith-based organizations concerned by the present law, nor did it define religion. Instead, it included in its list of concepts the followers of a faith-based organization as members who founded an organization and others who can join the organization after its establishment.

The current law sets the requirements and procedures for applying for legal personality or registering a faith-based organization. In this context, I must recall that religion as an institution must observe laws applicable to the country in which it operates. Additionally, it is a legal person whose existence depends on legal personality issued by the competent organ. That legal personality empowers it to enjoy legal rights like any other person, but also creates obligations. The entities concerned are the constituents of a faith-based organization, namely an organization, ministry, branch, umbrella, and forum of umbrellas.

The law governing faith-based organizations makes obtaining legal personality a sine qua non condition for an organization, an umbrella, a forum of umbrellas, or a ministry that intends to start activities. It empowers the Rwanda Governance Board to issue legal personality and monitor the functioning of these bodies. As I insisted above, the legal personality is a determining factor of the existence of that legal person. Articles 17 to 33 detail the requirements for application for legal personality, rights, and obligations, and emphasize the requirements for being a preacher.

The following are required documents for application for legal personality: an application letter addressed to the Board; notarized statutes governing its organization; the address of its head office and the names of its legal representative and deputy, their duties, complete address, and criminal records; a document certifying that the legal representative and deputy were appointed following its statutes; a brief notarized statement explaining its doctrine; a notarized declaration by the legal representatives of consent to the responsibilities assigned to them; notarized minutes of the general assembly that established the organization and approved its statutes. On this point, I must invoke Article Four of the same law, requiring that the statutes must not be inconsistent with the provisions of other laws. Other requirements include appointed members of its organs, a notarized document describing the organization’s annual action plan and source of funding, a document indicating that the building or meeting space meets the requirements for buildings in the area of operation, a letter issued by district authorities agreeing to collaborate with the organization, a partnership document issued by an umbrella organization of the organization’s choosing, and proof of payment of a non-refundable application fee.

Particular requirements for being a preacher

Article 22 of the law governing faith-based organizations in Rwanda details the requirements for being a preacher in Rwanda as follows: be of majority age, which in Rwandan law is 18 years; be a person of integrity; fulfil the requirements of an organization for being a preacher at that level; possess a statement testifying that an organization authorizes him or her to be a preacher; not have been definitively sentenced to a principal penalty of imprisonment equal to or exceeding six months which was never removed by amnesty or rehabilitation; and not have been definitively convicted of the crime of genocide, genocide ideology, discrimination or sectarianism. A further point of this Article conditions academic and religious qualification by requiring the preacher to possess a degree from a higher learning institution or another degree with a valid certificate in religious studies or related matters delivered by a recognized institution. The law states that persons required to hold an academic degree shall have five years from the date of the law’s enactment to comply with the requirement.

Concerning the place of sermons, Article 23 clarifies that religious sermons are delivered in designated facilities that meet the requirements of the law. It stresses that if an organization intends to organize a special public gathering, it seeks authorization from the competent authority. The Rwandan legislator has been sensitive about the content of preaching and prohibits an organization, an umbrella, a forum of umbrellas, or a ministry from jeopardizing, in its faith, practices, and preaching, the unity of Rwandans, peace, and security. The legislator prohibits them from jeopardizing public order, health, good morals, good conduct, freedom, and the fundamental rights of others, or causing noise pollution. However, I note that the Rwandan legislator has not addressed the issue of the abuse of sacrifices and tithes, the strategies of collecting sacrifices and contributions from believers, and messages about the imminent end of the world, or the non-fulfilment of civil obligations such as community service, taking the oath on the national flag, elections, or approaching catastrophic events. These messages cause anxiety and frustration among followers and make them resistant to developmental activities.

Monitoring the financial status of a faith-based organization

When discussing the power of the Board to monitor the financial status of a faith-based organization, I must first introduce the provisions of Article Four of the law, which grants them financial autonomy: “Without prejudice to provisions of other laws, every organization, umbrella, forum of umbrellas or ministry enjoys administrative and financial autonomy. However, when necessary, the Board can conduct financial and asset audits of any organization, umbrella, forum of umbrellas, or ministry.”

The regulation of lucrative activities

The current law allows faith-based organizations to engage in profit-generating activities but requires that revenues from those activities be used solely in activities related to the organization’s mission. On this point, I must recall that religious activities are exempt from taxes even though they generate profits. The concern here is determining how revenues are used solely in activities related to the mission: does it suffice if the competent organ within the organization approves? I have earlier raised the issue of mismanagement by these organs. In the same context, the Rwandan legislator empowered the Board, the province, and the district to be informed through annual reports about the annual plan of activities, budget, and budget execution. However, I observe that the Rwandan legislator left the role of these local administrative institutions unclear in respect of these reports. Therefore, the legislator should have clarified their power to approve, rectify, or reject them.

Strategic prevention of related financial crimes

First, I must recall that financial crime such as money laundering is a process by which a large amount of illegally obtained money, from drug trafficking, terrorist activity, or other serious crimes, is made to appear to have originated from a legitimate source. Experience with churches and money laundering in Nigeria suffices to alert any legislator to monitor the financial transactions of churches and worship groups. Some perpetrators of money laundering operated with some church leaders in Nigeria by using them as agents and partners in the illicit enterprise, and thus the churches became facilitating agents for asset concealment. In this process, the perpetrators purchased multiple houses using the names of friends and churches, gave assets to churches on secret trust agreements while proclaiming such assets to be anonymous donations and gifts, established private educational institutions in the name of unsuspecting business persons, or entered into anonymous joint ventures with others to establish some. The Rwandan legislator sought to prevent such illicit financial transactions by establishing a monitoring process for financial support, budget planning, and execution.

In doing so, the current law provides that any financial support is deposited into the account of an organization, umbrella, forum of umbrellas, or ministry opened at an accredited bank or financial institution in Rwanda. I can deduce that this system allows the monetary operator to monitor the source of financial support and the destination of any transaction. Equally, it prohibits an organization, an umbrella, a forum of umbrellas, or a ministry from receiving support from any individual or organization involved in terrorism or other criminal activities.

The necessity to address the issue of abuse of worship

Ngabonziza discussed the exaggerated increase in the number of churches in Rwanda, especially in Kigali City. He asserts that this increase resulted in abuse of the religious freedom provided for by the Constitution. What was more surprising was that some churches met in tents or houses that could not accommodate crowds, and noise pollution from night-time gatherings was a concern. As a solution, Article 23 of the law requires religious sermons to be delivered in designated facilities that meet the requirements of the law. If an organization intends to organize a special public gathering, it seeks authorization from the competent authority, particularly from the Board; this includes preaching through the media.

In another study, Gasana and Habamenshi raised the issue of increasing poverty among religious believers, while religious leaders promoted a culture of operating miracles and prophecies as Christians continued to sink deeper into debt than ever before. Regrettably, church leaders could gain profits from believers’ sacrifices, an act that the researchers qualified as an abuse of prophecy. They criticized these miracles as being used to prove that a particular brand of religion is trustworthy or that a particular religious leader is an authentic representative of God. Such practices consist of abuse of prophecy and misinterpretation of the scriptures associated with robbery through prophecies.

Preachers, who should help comfort believers’ emotions during difficult moments, instead sought to profit from them. Some of the methods they used consisted of imposing heavy offertories in the form of sacrifices, obligatory payment of a tenth of an advance of thanksgiving, or other sorts of gifts to the prophet to receive the prophetic message, the prophet being considered a messenger of God. I can infer that such practices would amount to a crisis in churches if the state did not intervene. Therefore, the intervention of Rwandan law governing faith-based organizations was conclusive in addressing these issues of abuse of worship and preventing exploitation exercised by religious leaders against their followers. The Rwandan Penal Code is clear in the punishment of such acts.

While recognizing that an organization, umbrella, forum of umbrellas, or ministry is free to determine the criteria for membership concerning its doctrine and practices, the law restricts it from using coercive or fraudulent means to recruit followers or members, and members have the right to leave.

Power of local administration and sanctions

The law on faith-based organizations empowers local administrative entities to enforce the law and make decisions accordingly. Through the decentralization and collaboration system, the district can request explanations from an organization, an umbrella, a forum of umbrellas, or a ministry operating in that district that did not fulfil its responsibilities. This district’s commitment to collaboration, a letter issued by district authorities agreeing to collaborate with the organization, is among the documents submitted to the Board when applying for legal personality. This power is ordinarily entrusted to the Rwanda Governance Board. If these explanations are unsatisfactory, if an organization fails to provide explanations, or if it commits the same mistakes about which it was warned, the Board can warn it in writing.

The sanctions to impose on defaulting organizations include suspension or dismissal of administration members, which the Board does when the organization’s own organs fail to take action, or revocation of legal personality. This punitive intervention is done in the interests of the organization. One leading example is the Board’s decision to dissolve the entire leadership of the Association des Églises de Pentecôte au Rwanda on 4 October 2020, after years of wrangling, infighting, and allegations of mismanaging the church’s funds. The concerned leadership included the general assembly, the board of directors, the executive committee, and the arbitration committee. The Board dissolved that leadership because these problems had been present for some time and the leadership had not taken steps to resolve them. Governance and functioning within the organization continued to be marred by divisionism, disturbing the members’ peace.

A severe sanction is when the Board revokes the legal personality of an organization, an umbrella, a forum of umbrellas, or a ministry. It happens if the entity no longer fulfils one or many of the requirements that served as a basis for being issued with legal personality. It can also happen when one or many provisions that served as a basis for issuing legal personality are found to be false. Revoking legal personality can amount to total closure.

Recently, an extreme decision to shut down more than 5,600 places of worship over failure to meet the conditions required by law signifies Rwandan rigour in regulating faith-based organizations and ensuring the enforcement of laws in place. Many of these had no address and, according to some claims, were prone to indoctrinating their followers and exploiting congregants.

Intervention in intra-religious conflict resolution

The law governing faith-based organizations empowers organizations to resolve internal conflicts, requiring that they have organs in charge of conflict resolution, and to seek support and intervention from immediately superior organs. The case is referred to the Board only if the claiming party is unsatisfied with the decision taken by the forum of umbrellas. Though an organization, an umbrella, a forum of umbrellas, or a ministry can be dissolved after approval by its supreme organ based on its statutes, the decision is communicated to the Board before implementation. I observe that the law has remained silent on the power of the Board over such a decision, or whether the Board can revoke it.

SUMMARY *

The article’s argument rests on a historical claim with a legal consequence. If religious institutions were among the instruments through which the genocide was prepared and carried out, then the state’s interest in what is preached within them is not an ordinary regulatory interest but a security one, and the general presumption against interference gives way. From this the author derives the case for the framework of 2018 and for its enforcement, including the closure of thousands of places of worship. The article is not uncritical of that framework: it identifies the tithe, the practice of prophecy and the collection of offerings as the areas where exploitation actually occurs and where the law is silent, and it notes the unresolved question of what powers local authorities hold over the reports submitted to them.

CONCLUSION

When discussing the necessity of regulating faith-based organizations in Rwanda, a straightforward view would conclude that every regulation potentially interferes with religious freedom. In contrast, a more objective view is that it is helpful to set limits on religious freedom to protect public security, morals, and order. While the primary goal of religion and religious teaching is to help believers prepare themselves for the ultimate goal through the love of God and the love of their neighbours, a few religious bodies that have existed in Rwanda since independence in 1962 moved in the opposite direction. Religion and politics were intertwined, while religious teaching became a means to create and spread hatred, discrimination, divisionism, genocide ideology, and its execution. The result was the genocide committed in 1994, which killed more than one million Tutsi in less than a hundred days. After 1994, religious groups and prayer houses increased as former Rwandan refugees returned home and different people moved to Rwanda for various purposes while contributing to the creation of new groups. Rwandans abandoned their former religions to join new ones or to belong to none. The main reasons were a sense of betrayal by former religious leaders or by their acts prior to and during the genocide. Others expected to receive emotional, psychological, and financial support from these religious groups.

Undoubtedly, that high increase of religious groups is not free from criticism: many religious groups lacked the infrastructure required to host their members, religious teachings were abused as some preachers and self-styled prophets used them as devices for financial gain from their poor followers, and conflicts within religious groups increased. This religious crisis necessitated the legislator’s intervention to set clear and binding guidelines for establishing, registering, operating, and managing faith-based organizations in 2018 and to empower the Rwanda Governance Board to implement the law. Since then, the organization and functioning of faith-based organizations have been harmonized and regular monitoring processes have been carried out, while many religious groups that did not fulfil legal requirements were closed and various religious leaders and preachers were suspended or removed. In the present paper, I supported the necessity for the state’s intervention in religious activities as an exception to the principle of separation of Church and state. I must emphasize that the state is responsible for the security of citizens and must use all possible means to fulfil that responsibility. Finally, I recommend reviewing the existing monitoring system to evaluate the content of the spiritual messages delivered to believers in different religious groups. While recognizing that this is a significant challenge in regulating faith-based organizations, I reiterate that religious teachings and spiritual messages should emphasize the love of God and the love of neighbours instead of the malpractices of some religious groups, leaders, and preachers, especially the abuse of the meaning and value of sacrifices and the tithe, of revelation and miracles, and the issue of night prayers in prayer houses.

POTENTIAL SOLUTION *

The article makes a serious case and it can be tested against the standard that governs this question in international law, which is more demanding than either side of the debate the author describes.

Freedom of religion has two components. The freedom to hold a belief is absolute and admits no limitation. The freedom to manifest it may be limited, but only where the limitation is prescribed by law, pursues one of the enumerated aims of public safety, order, health, morals or the rights of others, and is necessary and proportionate to that aim. Rwanda’s constitutional formulation reproduces this structure. The consequence is that the debate is not between regulation and freedom but about whether particular measures meet the test, and each measure has to be assessed separately rather than justified by the aim in general.

Applied that way, the measures the article describes fall into distinguishable groups. Requirements concerning building safety, capacity and noise are ordinary public safety regulation, apply to secular gatherings equally, and are unproblematic. The prohibition on preaching that incites ethnic hatred is not merely permitted but required, since the Genocide Convention obliges states to prevent incitement and the international tribunal’s judgments established that such speech preceded and enabled the killing. Financial transparency obligations likewise apply to associations generally.

The educational qualification for preachers is where the analysis becomes harder, and it is worth stating the difficulty plainly rather than assuming it away. A degree requirement bears unevenly on traditions with formal seminary structures and those without, and it can operate in practice to advantage established churches over newer congregations, which are precisely the ones the article identifies as having grown because people left the established churches. That does not make it unlawful; it means the justification has to be specific to the harm, and the harm the author actually documents concerns exploitation and dangerous teaching rather than the absence of a degree. The narrower measures that address the documented harm directly, and which the article rightly notes the law omits, are financial disclosure to congregations, a complaints route for members, and rules on the solicitation of offerings.

Two further observations. Prior authorisation as a condition of worship has been examined by human rights bodies in a number of jurisdictions, and the consistent finding is that registration is acceptable where it is declaratory and objection is possible only on defined grounds, and problematic where a discretionary authority decides which groups may exist. Where thousands of congregations are closed in a short period, the questions that determine which of these is happening are procedural: was notice given, was time allowed to comply, was there an appeal to an independent body, and were the criteria published in advance. The article does not address these, and they are what a defender of the policy would most usefully establish.

Finally, the article’s own conclusion contains the point at which caution is most warranted. Reviewing the content of spiritual messages is a substantially different undertaking from regulating buildings or accounts, and the state that acquires the power to assess doctrine has acquired something it will be asked to use again. The history the author recounts is precisely why this is difficult: the churches were captured by the politics of their day, and the remedy proposed places the assessment of religious teaching in the hands of the state. The safer route, and the one this journal would recommend, runs through the religious communities themselves: umbrella bodies with genuine authority to set standards, internal complaint mechanisms, and interfaith structures that address abuse from within, supported by the state and not administered by it. That preserves the protection while leaving the content of belief where the constitutional guarantee places it.

* Added by the WMO Editorial Team

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Supplementary references added by the WMO Editorial Team

International Covenant on Civil and Political Rights, 1966, Article 18, and General Comment No. 22 of the Human Rights Committee on freedom of thought, conscience and religion.

African Charter on Human and Peoples’ Rights, 1981, Article 8.

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A Critical Study of Legitimization of Preemptive Self-Defense as a Counter-Terrorism Measure Under International Law

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

EDITORIAL NOTE *

The author of this article works at the United Nations High Commissioner for Refugees; the views expressed here are his own and do not reflect the official position, past, present or future, of the United Nations or of UNHCR.

ABSTRACT *

This article examines the legal status of preemptive self-defence under international law and argues that the Charter framework has not been updated to accommodate contemporary security threats, particularly terrorism, leaving a regulatory vacuum. The author sets out the conditions governing lawful self-defence, namely necessity, proportionality and imminence, and distinguishes preemptive action against an imminent attack from preventive action against a merely possible future threat. A survey of state practice follows, covering the Cuban missile crisis, the Israeli strike on the Osirak reactor, the invasions of Panama and Iraq, strikes in Libya, Sudan and Afghanistan, and the attack on the Syrian facility at Al Kibar, together with the responses of the Security Council and the International Court of Justice. The author finds that no such action has been formally validated, that condemnation has been inconsistent, and that the resulting silence encourages a system of self help. The article closes by considering whether new regulation is needed, what safeguards it would require, and whether a state wrongly accused of harbouring a threat should have a right to compensation.

KEYWORDS *

Self-defence, Article 51, preemptive self-defence, anticipatory self-defence, imminence, necessity, proportionality, Caroline formula, Security Council, terrorism, aggression, customary international law

INTRODUCTION

Article 2(4) of the United Nations Charter obligates all Members to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the Purposes of the United Nations. This prohibition of the threat or use of force aims to preserve peace and security between the Members, avoid aggression and the traditional self-help system, by focusing on the peaceful settlement of disputes. There are two exceptions to this prohibition: measures authorized by the Security Council as stipulated in Chapter VII of the Charter, and self-defence according to Article 51. However, despite these prohibitions, states have used armed force preemptively. Surprisingly, neither has the Security Council formally validated any preemptive self-defence attack, nor has the International Court of Justice given an affirmative advisory opinion or ruled positively on a related case.

Additionally, many states have publicly condemned preemptive self-defence armed attacks conducted by other UN member states. At the same time, terrorism continues to be an overwhelming security threat to the international community. Its sophisticated nature, technological implications, and support from some countries call for other mechanisms to address it.

A critical challenge in this matter is that the absence of a specified regulation regarding the lawfulness of preemptive self-defence within the UN Charter causes different interpretations of self-defence as provided by the Charter. In that respect, I argue that international law has created a vacuum in regulating states’ self-defence rights since it has not been updated to accommodate new and complex security threats, including terrorism. I have critically discussed this problem in the following three sections. In the first section, I invoke the concept of self-defence, intending to study the legitimacy of preemptive self-defence under the right of self-defence. In the second section, I discuss the status of preemptive self-defence rights based on a few cases before the International Court of Justice and the Security Council. My primary aim was to identify the international regulatory loopholes in preemptive self-defence and how these bodies interpret and apply the UN Charter and other customary laws in line with preemptive self-defence rights. In the final section, I focus critically on challenges to anticipate with new regulations, the compensation right for the infringed state of preemptive attacks, and its usefulness in combating terrorism.

MAIN CORPUS

Self-defence: a lawful use of armed force

I must recall that Article 51 establishes that self-defence is permissible if an armed attack occurs. In other words, self-defence of any preventive or preemptive nature is prohibited under Article 51 on its literal terms. Hence, I agree with Brownlie that the right to self-defence was constituted only as an exception to the general prohibition on using force and with the limitation of being subordinate to the Security Council.

Conditional legitimization of use of force for self-defence

Self-defence as a lawful use of armed force must strictly respect several conditions. Namely, the defendant must reasonably believe that there is a present or imminent danger of armed aggression and that lethal force is vital and proportionate to ward off this illegal threat. In that sense, I understand that if lethal force was considered the only alternative to avoid an unlawful attack, the putative defender must prove that the threat was severe and imminent and that the use of force was proportionate and necessary. However, an objective and reasonable conclusion of the imminence of an armed attack must be based on a high degree of credible and reasonably available information.

In the Oil Platforms case, the ICJ clarified that the test of whether self-defence was necessary was a strict and objective condition, leaving no room for any measure of discretion. If these conditions are strictly applicable to self-defence, there should be even stricter regulation of preemptive self-defence instead of leaving that decision under the unilateral discretion of states. Moreover, the Security Council should act quickly and adequately to prevent imminent danger from turning into preemptive and revenge chaos. When the ICJ ruled on the US claims that Nicaragua had unlawfully used force by providing weapons and supplies to Salvadorean rebels, the Court held that even if it had done so, an armed attack was not proportional to the supply of weapons. From this case, I can infer that a state must resort to measures less than armed self-defence if it is threatened by force not amounting to an armed attack, or it must seek Security Council authorization to do more. In this case, the ICJ emphasized that the norms of customary international law can exist parallel to those of the UN Charter and grant the same obligations and rights.

Finally, proportionality requires that possible civilian casualties be weighed in the balance. This rule prohibits force that may cause incidental loss of lives, injury to civilians or their objects, or their combination, if that force is excessive in relation to the concrete and direct military advantage anticipated.

The legality of preventive and preemptive self-defence

I must emphasize that self-defence is a right entitled to the state victim of an attack, that is, self-defence against an actual attack. The issue is when states extend that right to prevent or preempt attacks. These two concepts differ in that preemptive self-defence, that is, self-defence against an imminent attack, is argued by some to be permissible, whereas preventive self-defence, where there is no imminent threat, is not.

According to this analysis, preemptive self-defence aims to ward off an attack, which makes it defensive. In contrast, using force to prevent possible future threats is no longer defensive in the strict sense but offensive. In preemptive self-defence, the enemy has decided on war, while the victim or target state can try to disrupt the unfolding assault or may elect to receive the attack before reacting. According to the Caroline incident, the state is in a situation of necessity which is overwhelming, leaving no moment for deliberation and no choice of means. That incident occurred in 1837, in which British militia from Upper Canada crossed to the US shore of the Niagara River and set adrift a small rebel-operated vessel.

Justification of preventive self-defence: a lesson from the terrorist attacks of 11 September 2001

The lesson to learn from the terrorist attacks of 11 September 2001 is that terrorist attacks can occur at any time because non-state actors are capable of projecting extreme violence across the globe. Another critical concern to the entire international community is the ability of terrorists to project force across the globe and the potential use of weapons of mass destruction. The issue with the attack on Iraq is that the threat was not imminent for the targeted state to act preemptively.

The USA and its allies defended Operation Enduring Freedom against Afghanistan on the basis that the 11 September attacks were part of a series of attacks on the United States which began in 1993. In this process, the USA pointed to Bin Laden’s connection with the 1993 attack on the World Trade Center, the 1998 embassy bombings in Nairobi and Dar es Salaam, and other terrorist attacks. The unique nature of this threat had proved the Security Council’s inability to take practical action using Chapter VII enforcement powers against an enduring terrorist threat comprised of past and imminent armed attacks. Therefore, states had no means to counter that threat other than using questionable defensive armed force.

Imminence of threat as a significant factor

In the case of the Iraqi invasion, the High-level Panel established that a state can act in self-defence before an armed attack has occurred only if there is an imminent threat. It means that if the threat is not imminent but still real according to credible evidence, for instance actual allegations regarding possession of nuclear weapons, the issue should be submitted to the Security Council. Therefore, member states should not handle the threat solely with armed self-defence actions.

Preemptive self-defence: an embedded right?

There are many questions related to the legitimization of preemptive self-defence. It is critical to determine whether Article 51 of the UN Charter has permitted preemptive self-defence or imposes certain conditions for applying a pre-existing, inherent right of self-defence. Article 51 of the Charter only addresses self-defence in response to an armed attack. Otherwise, the UN Charter has prohibited preventive or preemptive wars. Now the question is whether the targeted state will wait for the danger to burst even though it had sufficient evidence of the threat, or whether it will preempt and strike first. If it opts for the second approach, the issue is to know the legal basis of such an attack if the UN Charter is silent on preemptive self-defence. Unquestionably, self-defence must be distinguished from self-help by which states decide military actions independently. This analysis makes me infer that self-defence rights exclude preemptive self-defence because there is no right of self-defence without an armed attack. However, I understand that in the event of a possible attack, a state can start preparations to resist an attack and should bring the matter before the Security Council before taking any action.

National security strategy and the preemptive attack as a self-defence right

The US National Security Strategy strived to advance the legal reasoning of preemptive self-defence, insisting that international law has recognized that nations may take action to prevent suffering from an attack. Therefore, they can lawfully take action to defend themselves against imminent danger if they have undoubted information about the mobilization of armies, navies, and air forces preparing to attack. It means that if a state acts following the strict principles of customary international law by fulfilling the requirements of necessity, proportionality, and imminence, or as put forth in the Caroline case, self-defence action taken in anticipation of an armed attack will be argued to be legitimate.

Self-defence as a temporary right

I must recall that the Charter gave the Security Council the responsibility of maintaining collective peace and security, and states must report their measures of self-defence to the Security Council. In other words, member states have a right to self-defence, but that right is limited to being temporary. That is to say, the state’s actions must cease as soon as the Security Council starts taking action. This principle implies that the primary purpose of self-defence is to repel an armed attack, not to go after the attacker or to take revenge. It clarifies that self-defence constitutes a temporary act of armed force and cannot justify a long-term act of armed occupation or annexation.

The Six-Day War between Israel and Egypt in 1967 raises this question, because Israel launched an attack on Egypt’s airbases on 5 June, destroyed the Egyptian Air Force, and occupied Gaza, the West Bank, the Sinai, and the Golan Heights. Israel argued that the attack was a response to the transfer of Egypt’s forces to the border and the closure of the Straits of Tiran. In this respect, it follows that the nature of the use of force raises the question of anticipatory self-defence and its lawfulness, because it went beyond repelling an attack and led to the occupation of territory.

Preemptive self-defence as a counter-terrorism measure

As I discussed above, after the Israeli strike of 1981, the majority of states demonstrated a common international rejection of preemptive self-defence. In the Cuban missile case, states usually abstained from publicly using preemptive self-defence as justification. After the attacks of 11 September, parts of the international community appeared readier to accept a broader right of self-defence against non-imminent attacks. With the Iraqi invasion in 2003, the US self-defence approach openly turned to preemptive self-defence. This sequential analysis establishes a claimed need to expand the right of self-defence under the UN Charter to anticipate and forestall terrorist plans. Otherwise, the cases I discussed in this paper and many others have been found to lack a legal basis because they do not accord with existing international law.

The status of preemptive self-defence in international law

I cannot claim to make an exhaustive list of cases in which states preemptively attacked other states on the pretext of self-defence; instead, I will discuss a few cases critically to demonstrate their illegality in international law and the position of different actors, including the Security Council, states, and the ICJ. Undoubtedly, the practice of terrorism by any person or group is a potential threat to the international community that needs to be resisted by all lawful means available. In other words, it is critical to conjugate all efforts necessary to prevent or respond to terrorist acts.

Problematic legitimization

Preemptive self-defence is allegedly used to legitimize the use of armed force in response to a non-instant and non-real danger of armed attack. Thuo Gathii stresses that it is an initiation of military action to anticipate harmful actions that are neither presently occurring nor imminent.

The balance between the risk of responding to an armed attack and a preemptive strike

When analyzing the issues of the legitimization of preemptive self-defence, it is critical to consider the likelihood of occurrence of an attack, its imminence, and the state’s protection against that threat. In another sense, the time and location of the attack may be known, but the attack has not yet been launched. Therefore, the justification for using armed force is sought to prevent the attack from becoming real. The dilemma resides in knowing whether a state has to wait for an armed attack to be conducted on its territory before it can invoke the right to self-defence, or whether it can use force to avert the attacker before the armed attack has occurred. Some cases exemplify states’ anticipatory attacks. For example, in 2003, the USA and Great Britain invaded Iraq and claimed that Iraq possessed and manufactured a programme of weapons of mass destruction which constituted a future threat. In 1981, Israel attacked and destroyed Iraq’s nuclear reactor and claimed a justification because Iraq planned to use the reactor for manufacturing weapons and attacking Israel.

The challenge of determining proportionality of imminent attacks

One of the complications of legitimizing preemptive self-defence is the proportionality of force to an imminent attack. I am convinced that such acts are illegal because they are not a response to a visible manifestation of aggression that would enable one to determine the proportionality of the force used; instead, they are grounded in predicting how the feared enemy will likely behave in the future. Furthermore, proportionality may relate more to the duration, size, and target of armed defence. It means the actions should not amount to more than what is strictly needed to repel the attack. However, it does not mean that the actions of self-defence have to be made with the same weapons or the same number of armed forces as the attacking state.

The status of preemptive self-defence under Article 51

In some cases, states have used force with or without Security Council authorization outside of the collective security framework envisaged in the UN Charter and absent armed attacks. The UN Charter prohibition against using force has not changed, because the concept of preemptive self-defence attack has no legal basis in international law. In other words, the UN Charter, which contains the right of self-defence, does not allow states to act preemptively. As a response to the 11 September attack, the Security Council passed Resolution 1368, affirming the right under Article 51, and Resolution 1373 unanimously forbidding the aiding or funding of terrorist groups and establishing the Counter-Terrorism Committee to monitor member states’ implementation of its provisions.

The Security Council’s position

The states that made preemptive self-defence attacks justified them on the basis that instead of risking waiting for an attack to be imminent or for an actual attack to occur, they acted in advance to avert possible future attacks. When the USA launched an attack on Panama in December 1989, defeating and reversing the existing government, it justified such an attack as a means to protect American military personnel and civilians from imminent attacks and danger. Surprisingly, a draft resolution within the Security Council marking the invasion as unlawful was not adopted due to a lack of support by permanent members. When the USA launched attacks against camps in Afghanistan and Sudan in 1998, alleging that they were producing weapons of mass destruction, that attack was internationally criticised due to lack of evidence for the alleged imminent threats, but the Security Council did not take any action.

What if the acts suspected as a threat are found not to exist?

The Iraqi invasion is a wake-up call on this matter. When the combined troops of the US, UK, and Australia invaded Iraq on 19 March 2003, the US claimed that Iraq had a programme to develop weapons of mass destruction, which created a future threat to the peace and security of both the US and the world. Though the invasion was highly controversial and received much criticism, the discussions did not circle the issue of preemptive self-defence, and the issue was almost not even brought up during the discussions about the lawfulness of the invasion. Additionally, the allegations of the existing threat by Iraq were also dismissed. It later became public that Iraq did not possess weapons of mass destruction.

The Cuban missile crisis in 1962 is another culminating example. The USA claimed that the installation seriously threatened world peace and the security of the United States. In this case, I realize that the USA did not invoke Article 51 of the Charter since there was no imminent threat of an armed attack. The Security Council and the General Assembly condemned the Israeli strike on the Osirak nuclear reactor in Iraq on 7 June 1981, but there were no consequences for that unlawful act.

In an attack on the Syrian Al-Kibar facility in 2007, Israel justified striking the Syrian nuclear reactor in order to prevent Syria from producing nuclear weapons. The discussions above have criticized the lack of legal justification for preemptive self-defence armed attacks. Consequently, armed attacks may amount to the crime of aggression as defined in the General Assembly’s Definition of Aggression. Article 3 establishes a list of actions that constitute an act of aggression. In that sense, if a state performs any of the acts established in this list, it commits an act of aggression and should bear responsibility.

The Security Council’s passive role encourages a self-help system

In 1975, Israel launched a strike against Palestinian camps in Lebanon. The condemnation of that act by the Security Council and many other countries fell on deaf ears because, in 1985, it also attacked the Palestine Liberation Organization headquarters in Tunis. The Council condemned the action by Resolution 573 (1985). South Africa did the same when it attacked bases of the African National Congress in neighbouring countries between 1976 and 1983, justifying such acts as preemptive self-defence.

In 1986, the USA justified its aircraft attacks on targets in Tripoli as self-defence in response to past terrorist attacks by Libyans on US nationals, as well as to forestall future terrorist action. In 1993, the USA justified its missile strike on the Iraqi intelligence headquarters in Baghdad as a response to an assassination attempt on former US President Bush carried out in Kuwait two months before. The Council remained silent on that act. The same happened in 1998 when the USA fired missiles against Afghanistan and Sudan in response to terrorist attacks carried out on US embassies in Kenya and Tanzania by persons allegedly harboured by these two states. The Council met briefly and took no action on this unilateral punitive act.

I am concerned about the passive role of the Council in these acts and many others, because I realize that the Council has allowed states to determine on their own what should be termed preventive or punitive acts. It will render the UN Charter useless and encourage the self-help system, leading the world into chaos. In the Nicaragua case, the ICJ expressly did not pronounce on the issue of the legality of a response to an imminent armed attack. On the question of an armed attack, the Court, based on the principles of necessity and proportionality, rejected the US claim of self-defence.

The way forward: complex global security problems and new law

In the sections above, I briefly discussed the cases in which some states preemptively made armed attacks against other states and claimed them to be their self-defence right despite the lack of legitimization of such attacks under the UN Charter. Additionally, these acts were supported by a few states, while many others rejected and condemned them. On the other hand, the ICJ rejected the claim to legitimize such acts or did not take a clear position in other cases. However, insecurity threats, especially terrorism, continue to destabilize the international order. In that sense, in this section, I will discuss the need for new law to accommodate that right, as well as related challenges.

The need to modify the current regulations resides in the fact that imminence in today’s threats can be challenging to determine. More precisely, I agree that rogue states and terrorists do not use conventional means of attack because such attacks are likely to fail. Instead, they potentially use weapons of mass destruction because these weapons can be easily concealed, delivered covertly, and used without warning.

This new system of security threats dictates that the current regulations should be updated to address these new modes of security threats. However, regulations should be precautionary since uncertainty remains about the time and place of an enemy’s attack, and should avoid the risk that some states abuse them. In other words, due to the modern threats of weapons of mass destruction and terrorism, it is critical to analyze circumstances such as the nature and gravity of the attack and the capacity of the attacker.

Militarily powerful states have also argued that they are responsible for maintaining international order. Therefore, the self-defence exception should be interpreted in that context and according to the purposes of the UN Charter to yield interpretations consistent with its peace and security mandate. This risks becoming the law that powerful states impose, if most other member states condemn any of the previously discussed preemptive attacks. I have highlighted in these cases how the states that favour preemption push for changing international law to accommodate their right to act preemptively and to take defensive action based on their perception of national interest and capabilities.

I must emphasize that the prohibition of the use of force must be maintained even in the face of inconsistent practice. Therefore, I agree with Schachter that state practice inconsistent with international law is not treated as evidence of the emergence of a new rule. I can deduce that such inconsistent practice should be treated as a breach of international law and sanctioned accordingly. It is in this view that the ICJ emphasized that simply because a few states have advocated a new doctrine of preemptive war does not, in light of the significant differences of opinion between states, lead to the establishment of an opinio juris in favour of preemption.

Regulation of the rights of a state infringed by preemptive self-defence

I agree with Glennon that the practice of states shows that the binding nature of international rules concerning the use of force becomes questionable. A few cases I discussed in the sections above demonstrated how fear pushed states to trespass these rules and attack other states. More particularly, the Cuban missile crisis, the US invasion of Panama, the strike on the Osirak reactor, the strike on the Syrian Al-Kibar facility, and the US drone strike in 2020 were all based on fear of being subject to an armed attack. These allegedly wrongful preemptive self-defence attacks and many other armed attacks have caused and still cause many losses of life in different areas of the world, devastating the countries accused of aiding or harbouring terrorists. In that respect, I take the view that a country that is the victim of such allegations should benefit from compensation once these allegations are proven wrong. I espouse Professor Glennon’s view that states would use preemptive self-defence as a pretext for aggression, which Article 51 of the UN Charter did not provide for.

Surprisingly, the ICJ has condemned preemptive self-defence acts but has not decided on compensation rights in this context. Undoubtedly, the negative results have been increasing tensions, mistrust, and mobilization of forces, including efforts to develop hazardous weapons.

To what extent can a targeted state preemptively self-defend?

Some argue that targeted states may self-defend preemptively even before the bullets fly from an enemy, and that self-defence may begin if the necessity is overwhelming. According to this line of argument, there must be a plan for the attack, and the plan must be in the course of implementation. In that sense, once planes are in formation to implement a known plan of attack, a defending state would on this view be justified in launching a preemptive attack in self-defence. It means that the state may use self-defence even if the subsequent attacks are not yet under way. For example, if terrorists are planning a series of attacks, the state may respond to prevent future attacks about which it has evidence. Simply put, force may be used to avoid any further delay that would result in an inability by the threatened state to defend against or avert the attack against it effectively. I had seen that the Security Council took a comparable position on self-defence in these circumstances following the 11 September attacks, when it indicated that self-defence would be justified even at a time when no further attacks were under way.

Addressing anticipated challenges of legitimization

I have demonstrated above that 11 September became an overwhelming situation and exercised pressure on the Security Council. However, I understand that the fact that only several states have claimed this right, inconsistently and during shorter periods, cannot be found to constitute the nature of an internationally recognized custom. In other words, it is critical to prevent a few individual and militarily powerful states from grabbing the opportunity of existing security pressure to develop and create customary norms that suit their own politics and security interests. I agree with O’Connell when she stresses that if the United States creates a precedent with its attacks, all other states will be able to take hold of it. I can infer that if a state in the world feels that another state could become dangerous to it, the first state can refer to the US attack against Iraq or elsewhere, regardless of whether it has evidence of the other state’s intentions.

If this preemptive self-defence right is not provided for by the UN Charter and international customary law, it would then be an international law that, due to the changes in the world, is based exclusively on those rules that the states are willing to accept today. It is in this sense that international law governs relations between independent states. Therefore, states create the rules governing them in conventions or abide by the principles of law established to regulate the relations between those co-existing independent communities or to achieve common aims. Another challenge that I anticipate with the proposal for new regulation is that many states will not, due to political interests, publicly criticize the actions of others by establishing them as unlawful acts. On that logic, it is even less likely that the General Assembly and Security Council will adopt condemning resolutions.

SUMMARY *

The article’s argument turns on a distinction and an observation. The distinction is between preemption against an imminent attack, which has at least an arguable basis in the Caroline formula and in the debate over whether Article 51 preserved a pre-existing customary right, and prevention against a possible future threat, which has none. The observation is that the practice surveyed here has overwhelmingly been of the second kind while invoking the vocabulary of the first, and that the response has been condemnation in some cases, silence in others, and consequences in none. From this the author draws two conclusions: that the absence of consistent enforcement does more to erode the prohibition than any doctrinal argument for preemption, and that a state wrongly identified as a threat has no remedy for what is done to it.

CONCLUSION

The international community had witnessed the horrors and brutality of the two World Wars and committed to maintaining international peace and security by limiting the use of armed force against any state. The guiding principle behind it is Article 2(4) of the UN Charter prohibiting the use of force, while Article 51 provides for exceptions for the use of force where the Security Council acts to keep the peace as provided in Chapter VII of the Charter, or for a state’s individual or collective self-defence. Different cases that I discussed in this paper prove how some states trespassed these regulations of the Charter and attacked other states on the pretext of preemptive self-defence, and pushed for legitimization of such attacks.

Concerning the legitimacy of self-defence, I have critically emphasized a critical condition by which an attack must be under way or must have already occurred in order to exercise the right of unilateral self-defence. This aspect is lacking in preemptive self-defence. Otherwise, any earlier response requires the approval of the Security Council. In other words, there is no self-appointed right to attack another state because of fear that the state will attack or develop weapons usable in a hypothetical campaign. Any related attack should be condemned as a crime of aggression, and the infringing state should bear responsibility. Surprisingly, the ICJ has rejected claims of preemptive self-defence attacks but has never ruled on the consequences for the aggressor nor on the compensation rights of the aggrieved state. In that sense, preemptive self-defence cannot be seen as lawful due to the lack of legal basis and sufficient support within the international community. Therefore, there is a need for enforcement measures of the provisions of the Charter for them to be observed and for these wrong allegations to be avoided. On the other hand, there is a need to update the UN Charter and other related international laws to accommodate current problems since the world evolves with emerging and complex problems. However, these updates and amendments must go through a rigorous process instead of resulting from legitimization pressure by some states.

Finally, the prohibition on the use of armed force must be rigorously observed. Even when a state is legally entitled to use force, there should be strict conditions of prudence and exceptions that limit the exercise of that right. Therefore, the Security Council should comply with its obligations to ensure peace and security before states individually decide to address security issues.

POTENTIAL SOLUTION *

The article’s insistence on the distinction between preemption and prevention is the most valuable thing in it, and one clarification would strengthen the case considerably. The debate is not primarily about whether imminence permits anticipation but about what imminence means. The Caroline formula, instant and overwhelming, leaving no moment for deliberation, was devised for an age in which massing troops could be observed and the interval between decision and attack was measurable. Where an attack may be delivered without visible preparation, temporal proximity ceases to be a workable test, and the contemporary debate turns on whether it should be replaced by an assessment of the last feasible window in which action can be effective. That reformulation is where the risk of abuse lies, since it substitutes an assessment made by the acting state for a fact that others could verify, and identifying it precisely is more useful than arguing over labels.

The compensation question the author raises is more novel than the article claims and deserves developing. The framework exists: a state that uses force unlawfully commits an internationally wrongful act and owes reparation under the general law of state responsibility, and the International Court has awarded reparation for unlawful use of force, most substantially in the Congo against Uganda judgment of 2022. What is missing is not the principle but the forum, since jurisdiction depends on consent and no state that has used force preventively has been willing to submit. The practical proposals therefore concern jurisdiction rather than doctrine: acceptance of the Court’s compulsory jurisdiction, compromissory clauses in security treaties, and the possibility of advisory opinions requested by the General Assembly, which requires no consent from the state concerned.

Two points about the article’s central worry about precedent are worth adding. First, the concern is empirically supported: doctrines developed by powerful states have been invoked by others, and the arguments advanced in 2003 and afterwards have since appeared in the justifications offered for interventions that their original authors condemned. That is the strongest argument against relaxing the rule, and it is an argument of self interest rather than of principle, which makes it more likely to persuade. Second, the article’s account of the Council’s passivity identifies the real mechanism of erosion. A prohibition is not weakened by violations, which every legal system has, but by responses that vary with the identity of the violator. Consistent condemnation preserves a rule even where it cannot be enforced; selective condemnation converts it into a question of who is acting.

Finally, one observation belongs in this journal. The article treats the choice as lying between striking first and waiting to be struck, and the interval between those options is precisely where this field works. Crisis communication channels, verification arrangements, third party inspection, mediated de escalation and the referral of a suspected programme to a technical body are all means of resolving the uncertainty on which preemption claims rest, and several of the cases the author lists were preceded by periods in which such measures were available and not seriously attempted. The Iraqi case is the clearest, since inspection was under way and reporting negatively when force was used. That is not a legal argument but a practical one, and it is the strongest available: the necessity that preemption invokes is very often a necessity that was created by declining the alternatives.

* Added by the WMO Editorial Team

REFERENCES

[Bibliography and footnotes as in the original manuscript]

Supplementary references added by the WMO Editorial Team

Charter of the United Nations, 1945, Articles 2(4), 39, 42 and 51.

International Court of Justice, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), judgment on reparations, 9 February 2022.

Report of the High level Panel on Threats, Challenges and Change (2004). A More Secure World: Our Shared Responsibility, United Nations, New York, paragraphs 188 to 192.

Amendments to the Rome Statute of the International Criminal Court on the crime of aggression, Kampala, 2010, and their activation in 2018.

Chatham House Principles of International Law on the Use of Force in Self Defence, 2005.

Bethlehem, D. (2012). Principles Relevant to the Scope of a State’s Right of Self Defense against an Imminent or Actual Armed Attack by Nonstate Actors. American Journal of International Law, 106(4), 770 to 777.

Dinstein, Y. (2017). War, Aggression and Self Defence (6th edition). Cambridge University Press, Cambridge.

Corten, O. (2021). The Law Against War (2nd edition). Hart Publishing, Oxford.

The Problematic Regulation of Responsibility of the Contracting Parties for Breach of Treaties and International Agreements

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

EDITORIAL NOTE *

The author of this article works at the United Nations High Commissioner for Refugees; the views expressed here are his own and do not reflect the official position, past, present or future, of the United Nations or of UNHCR.

ABSTRACT *

This article examines the regulation of state responsibility for breaches of treaties and international agreements, and argues that international law is ineffective in this field because it lacks binding enforcement. After setting out the relevant provisions of the Articles on Responsibility of States for Internationally Wrongful Acts and of the Vienna Convention on the Law of Treaties, the author considers obligations arising from peremptory norms and obligations owed to the international community as a whole, the question of standing to respond to breaches of multilateral and human rights treaties, the legal status of unregistered instruments, and the permissible routes by which states may deviate from treaty obligations through reservations, withdrawal and countermeasures. A second section identifies the resulting difficulties: countermeasures available in practice only to powerful states, the unresolved question of who counts as an injured state, the absence of implementation machinery, the limited binding force of resolutions, and the record of economic sanctions. The author closes with proposals centred on peaceful mechanisms, prior assessment before measures are imposed, and clearly defined objectives.

KEYWORDS *

State responsibility, treaty breach, Vienna Convention on the Law of Treaties, jus cogens, erga omnes, countermeasures, standing, International Law Commission, sanctions, enforcement, Security Council, compliance

INTRODUCTION

Treaties and international agreements play a critical role in regulating international relations, especially most relationships between states. Additionally, customary law establishes all parties’ legal rights and duties to a treaty. Unsurprisingly, during the execution of an international instrument, it is likely that a contracting state violates any of the agreed-upon provisions of the instrument. The responses to the breach of a treaty are regulated in both the law of treaties and the law of state responsibility, the latter governing responses to a breach of any international obligation and, therefore, also of obligations arising from treaties.

Article one of the International Law Commission’s Articles on Responsibility of States sets the basic principle of international responsibility of states for breach of international law. Article 12 emphasizes disconformity with international obligation, regardless of origin, while Article 28 evokes legal consequences arising from internationally wrongful acts. The legal consequences in Article 30 consist of ceasing that act if it is continuing, while Article 31 sets the obligation to repair the damages fully. Worse than that, the non-binding decisions of international organs, including adjudicatory bodies, are not enough to compel the contracting parties to perform international obligations. Therefore, I argue that international law is ineffective in regulating states’ responsibility for breaches of obligations arising from treaties and international agreements because it lacks the required binding character. In analyzing this ineffectiveness, I will briefly discuss the regulation of states’ responsibility in international law, the related challenges, and alternative solutions to address them.

MAIN CORPUS

An overview of the regulation of state responsibility for breach of treaty obligations

A treaty breach is an internationally wrongful act and entails the ensuing duties of cessation where applicable, suspension, termination, and reparation. More importantly, the general rules of responsibility induce the infringing state to cease the act and make full reparation, while the victim state may suspend, withdraw from, or terminate the treaty in response to it. In this section, I discuss the regulation of state responsibility by international law, emphasizing its ineffectiveness.

Breach of obligations arising from peremptory norms of general international law

Peremptory norms, or jus cogens, are non-derogable norms accepted and recognized by all states. In other words, any treaties, customary rules, or national laws contrary to these norms become invalid as they are contrary to jus cogens. According to Article 26 of the Articles on State Responsibility, obligations arising from peremptory norms are incumbent on the responsibility of the wrongful state. I can deduce that the reason for not precluding the wrongfulness of any state’s act which is in disconformity with these norms is because peremptory norms concern vital interests of the international community.

Equally important, erga omnes norms give third states, other than the injured state, legal claims against the violator of an international obligation. Therefore, I submit that the duty to abide by jus cogens norms is an obligation to the international community. As a result, violations of some or all jus cogens norms may be enforceable by states individually or collectively, even without a direct injury other than the fact that the norm has been violated. In some instances, the capacity to respond to the breach of an obligation of jus cogens belongs, within precise limits, to states other than those whose rights have been infringed. In other words, third states have certain rights to respond to violations of international human rights law.

However, referring to the Nicaragua case in its merits phase, the Court refused to uphold the legality of the United States’ unilateral use of force in response to Nicaragua’s alleged attacks on other Central American states, which did not constitute the right of collective self-defence. On the other hand, customary rules include rules such as the ban on aggression and genocide and the protection of fundamental rights of human beings, to name just a few, which have an absolute value, and their breach concerns the international community as a whole.

The standing to respond against material breach of human rights treaties

Contrary to bilateral treaties, by which if one state violates a bilateral treaty materially the other party has standing to respond to that breach, material breaches of multilateral and human rights treaties do not affect any other treaty party in a particular way. Hence, no other state often has standing to suspend or terminate human rights treaties. That is why some treaties recognize the right of every state party to respond against breaches, and within regimes providing for regular recourse to third-party dispute resolution, some courts or tribunals have clarified the requirement of locus standi.

However, the Vienna Convention recognizes that when cooperating, all other parties are free to react against material breaches of multilateral treaties. This article provides that they can terminate it in the relations between themselves, with the defaulting state, or as between all parties. In other words, they may unanimously choose between finally or temporarily expelling the violator from the treaty or ending their treaty relationship. Article 60(2)(c) complicates the matter by recognizing that for a small circle of obligations, each party to a treaty can respond to material breaches individually, irrespective of any particular injury, thus accepting the premise of the solidarity approach.

Breach of unregistered international instruments

Registration of treaties and international agreements is an obligation since the UN Charter does not allow the invocation of unregistered treaties or international agreements before a UN organ. An alternative way for the parties is to settle and enforce these treaty obligations through international courts and tribunals outside the UN system.

The Vienna Convention requires that parties transmit treaties to the UN Secretariat after entry into force for registration, filing, recording, or publication. However, the ICJ does not solely rely on registration to decide on the legal status of an instrument and the legal obligations arising from it. For example, in the Aegean Sea Continental Shelf case between Greece and Turkey concerning the 1975 joint communiqué between the Greek and Turkish Prime Ministers, the Court considered the nature of the act or transaction and the circumstances in which the communiqué was drawn up in determining its legal character. In another case, on the exchange of agreed Minutes between Qatar and Bahrain in 1990, the Court ruled in favour of Qatar on the basis of the textual formulation that reflected the parties’ intention to conclude a legally binding instrument, since that instrument was signed by a foreign minister and referred to the ICJ for dispute resolution. Based on these cases, I can conclude that the non-registration of an international instrument with the UN Secretariat does not affect its legal nature nor preclude the state’s responsibility for the breach of that instrument.

Permissible deviation from state responsibility

When discussing the lack of state responsibility for breach of treaties or international agreements, it is critical to consider the rules and practices that allow state parties to deviate from or avoid specific treaty obligations. These include the rules for withdrawal from treaties and the rules governing reservations in treaties. A state party to a treaty or international agreement can strategically deviate from its responsibility by making reservations on some provisions. Other strategic deviation may consist of unilateral retaliation by the victim state, which may have the right to retaliate by breaching its obligations. I can derive from this statement that the breach of a treaty in the form of retaliation should not be viewed as a violation of the law.

Conditional application of measures against state responsibility for internationally wrongful acts

Countermeasures aim to compel the defaulting state to cease its violation of international law and restore the situation that would have existed had there been no such violation, and do not constitute a breach by the state applying these countermeasures. However, the Articles on State Responsibility condition these countermeasures on their being temporary and on permitting the resumption of the obligation in question. In other circumstances, a material breach of a treaty may consist of the repudiation of a treaty, that is, any attempt by a state to relieve itself from its obligations. For example, in an arbitration case between Slovenia and Croatia, the Arbitral Tribunal clarified that repudiation meant the rejection of a treaty as a whole.

The legal instruments regulating responsibility for breach of international law

I must signal that the Vienna Convention on the Law of Treaties provides for actions that the infringed state can take in case of breach of a treaty but does not regulate the responsibility of the infringing state, which is not within the scope of the Convention. In the same trend, the UN Charter established a role for third states, through the Security Council, to become actively involved when they respond collectively to threats to the peace or acts of aggression by states. Another critical aspect is customary international law, which recognizes that a breach by any state party to an international agreement constitutes an injury to the legal rights of all parties regardless of whether they have suffered direct tangible injuries. The draft articles of the ILC regulate legal consequences for that breach, namely making full reparation through restitution, compensation, or satisfaction. Based on this gap and non-binding rulings, I infer that international law is impractical in regulating states’ responsibility for breach of treaties and international agreements. On this note, I was impressed by the Security Council’s practice, which illustrates how obligations can be directed to non-state actors, including counter-terrorism, arms embargoes, and access to humanitarian assistance.

The problems related to the regulation of responsibility for breach of treaties

In this section, I will critically discuss the problematic regulation of the contracting parties’ responsibility for breach of treaties and international agreements. The main problems include non-binding legal instruments, invocation of breach of multilateral treaties, damages, and countermeasures, the consequences of comprehensive sanctions, and the lack of designated organs to ensure compliance with resolutions against breach of international law.

The problems of the measures in response to the breach of treaties

As I introduced earlier, the consequences of a breach of treaties and international agreements include countermeasures allowing a state that has had its rights breached by another to temporarily derogate from its international obligations to compel the other state’s compliance. On the other hand, I agree with Posner and Sykes that remedies are not an adequate solution for the breach of treaties and international agreements since only powerful states can afford to take these measures. Thus, this approach favours the strong and hurts the weak. Therefore, I am convinced that the ILC draft articles should be an excellent solution to the absence of formal rules about remedies that ensure oversight of traditional unilateral retaliation. However, the states never formally adopted them as a treaty, and they lack binding force on the states.

The status of damages and the injured state

Generally, the ILC draft articles treat all states as concerned where an obligation to the international community as a whole is breached. However, the fact that all states are concerned about the breach of multilateral obligations and may strive to protect their legal interest in those obligations does not imply they should be treated as injured if their rights have not been affected. In other words, enforcement of remedies against a breach of an international obligation may be undertaken by non-injured states or particular groups of states. For example, in the Persian Gulf during the war between Iran and Iraq, some neutral states deployed armed forces to assist in protecting their flag vessels from illegal attacks by the belligerents. These forces were not aiming to protect the vessels of particular states but to protect the freedom of navigation for vessels of all flags. In my view, for multilateral obligations, one cannot grant all states the specific rights of the injured state. Another issue is applying Article 51 of the UN Charter and individual self-defence as an exception to the prohibition on the use of force. Surprisingly, this article did not regulate other alternatives for unilateral acts or measures. Moreover, collective security measures have proven ineffective and sometimes violate the UN Charter. One example is the Serbian case in which the North Atlantic Treaty Organization launched a military intervention without the Security Council’s authorization, which aimed to prevent Serbian forces from committing human rights violations. I believe every state should exhaust peaceful means other than those involving force.

Lack of implementation mechanisms

Firstly, I must stress that in the absence of enforcement organs, state parties comply with the obligations arising from treaties and international agreements only if that compliance satisfies their interests. Therefore, I agree with Telser that, because of the absence of an enforcement organ, the other party can terminate the agreement if one party violates the terms. Consequently, if a party violates a treaty or international agreement, the sanction must often take the form of countermeasures imposed by another nation or nations. The same is true for unilateral countermeasures because the sanctioning state is the one to determine the enforcement of the measures. Effective implementation mechanisms for sanctions typically require adequate follow-up and knowledge about the country and its population.

However, operational and political difficulties in achieving their objectives include legal loopholes, lack of trained staff, and lack of control and reporting mechanisms, which worsen corruption in many targeted countries. Politically, the UN is an umbrella of the five permanent members of the Security Council, a channel by which they legitimize their actions.

The impact of the lack of binding force of resolutions

Many cases prove the inefficacy of countermeasures resulting from the lack of binding force and inconsistency of resolutions. The Iranian case of 2006 is one of many cases that indicate how the UN has vainly used its sanctions and, instead, allowed the concerned state to reorganize its illegal acts better and develop its nuclear programme. The experience from this case pushes me to conclude that the UN had failed to make its sanctions work successfully.

Difficulties in implementing measures against the superpowers

The current war between Russia and Ukraine is a critical point worth analyzing regarding the failure of international law regarding the responsibility of states for their wrongful acts. Before the Russian invasion of Ukraine in February 2022, the US and NATO countries had vainly tried to deter Russia from invading by threatening to impose massive economic sanctions if Russia invaded. In response, the US, the EU, and Japan applied broad economic sanctions against Russia, but this has not stopped Russia’s military aggression. They prompted Russia to increase its ties with China, which did not participate in these sanctions. Unsurprisingly, few states participated in sanctions against Russia. This warring situation makes me conclude that countermeasures are not the best option when using force is impossible and can only apply to smaller states that usually struggle economically.

Ineffectiveness of economic sanctions in response to breach of treaty obligations

I do not doubt that economic sanctions are ineffective, harmful to the economic interests of both the imposing and receiving states, and can impose great hardship on innocent and vulnerable populations. Taking the example of Iraq in the 1990s, sanctions were applied against the entire country in response to a regime that became more repressive, caused ordinary Iraqis to suffer the most from the sanctions, and reduced food imports and medical supplies, causing widespread malnutrition and impoverishment of the population.

Regrettably, the 1995 Oil-for-Food programme in Iraq did not prevent malnutrition, disease, and higher infant and child mortality rates, which constituted a severe humanitarian crisis. Another case is North Korea, where sanctions worsened human life and caused political and economic insecurity among the civilian population. At the same time, North Korea continued to develop the nuclear programme that it considered the most crucial issue for the country’s survival, and to test nuclear missiles. Said otherwise, economic sanctions did not hamper North Korea from developing nuclear programmes because it has been able to obtain the materials and continue its policy by developing on its own and using different means of evading sanctions.

Alternative solutions

In the sections above, I have discussed the issues related to regulating the contracting parties’ responsibility for breach of international obligations. Apart from the gaps in the international regulation system, the measures applied against breaches of international law cause more problems. In that trend, there is a need to adopt strategic measures against the breach of international obligations, focusing more on peaceful measures.

If corrective actions prove impossible, peaceful measures may play a non-negligible role in response to the state’s responsibility arising from a breach of international law. That way, the injured state may strive to exhaust available measures and respect the related conditions. Concerning third states’ involvement, the ILC recognizes that where a serious breach of a peremptory norm occurs, every state is obliged to cooperate to bring the breach to an end and to avoid supporting the violator.

At first glance, I must emphasize that each country has its particularities and needs. Therefore, paying particular attention to the pre-assessment of the measures would enable a more solid conceptualization and design, thereby maximizing their effectiveness. The cases I discussed earlier prove the lack of a thorough pre-assessment to identify the country’s reality before imposing harsh measures. I understand that the lack of adequate preparation undermines the effectiveness of any measures, though they might have positive objectives. As a solution, I recommend paying particular attention to the country’s particularities, contextualizing the measures, deciding accordingly, or even abandoning them where they would worsen the situation.

In reality, economic sanctions are among the measures that undermine the ideal objective of human rights protection. In other words, the sanctions imposed on countries worsen the difficult lives of vulnerable citizens; that way, economic sanctions cannot be effective without clear objectives and a thorough pre-assessment. The cases I discussed in the sections above have proven the inadequacy of the measures, the process of setting them, and their enforcement.

SUMMARY *

The article’s argument develops in three stages. Doctrinally, a coherent body of rules exists: breach entails cessation and reparation, injured parties may suspend or terminate, third states may respond where obligations to the international community as a whole are at stake, and countermeasures are permitted within defined limits. Practically, every one of these remedies is self-administered, since it is the aggrieved party that decides whether a breach occurred, what response is proportionate, and whether to act at all. Consequently, the author argues, the system distributes remedy according to capability rather than entitlement: a state with economic weight can impose costs, a state without it can invoke rules that no one will enforce on its behalf. The examination of sanctions serves this argument rather than standing apart from it, since sanctions are the principal instrument by which the powerful respond to breach, and their record is what the author sets against the doctrine.

CONCLUSION

The objective of the measures set by international law for a state’s responsibility for breach of treaties and international agreements is to stop the conduct constituting a persistent breach of treaty obligations and norms of the general community interest. In this paper, I argued that some violations might not tangibly injure all the parties, nor would they necessarily infringe upon the full enjoyment of the treaty by every party. For example, there is no specific victim for the breach of an obligation arising from certain multilateral treaties. The concern I raised in this paper is the right of the injured state to apply unilateral measures, which can amount to a self-help system, the application of collective measures, and their outcomes.

As a solution, since treaties and international agreements constitute an explicit contract or an implicit contract in the form of customary international law between the contracting parties, the contracting states should promote other mechanisms that encourage compliance with the obligations where appropriate and facilitate accordingly.

Moreover, if sanctions are to be applied, they should be highly targeted and contain precise enforcement mechanisms, comparing the costs and benefits that sanctions provide, because injury to innocents is a drawback. In doing so, states should explore other alternatives, such as international and diplomatic negotiations. Finally, the lack of internationally designated bodies overseeing the enforcement of international obligations is a culminating issue that needs particular attention. That way, non-state actors and international organizations should increase their support for the implementation of treaties and international agreements and corrective measures accordingly.

POTENTIAL SOLUTION *

The article’s central claim requires one distinction that strengthens rather than weakens it. International law is not unenforceable so much as decentralised: it lacks a police force but not consequences, and the difficulty the author identifies is that those consequences are administered by the parties themselves, which converts a system of rules into a distribution of capability. Stated that way, the diagnosis is precise and it points toward a body of research the article does not use.

That research, which begins from the observation that compliance with international obligations is in fact high across most fields most of the time, identifies why. States comply because they operate in continuing relationships in which reputation is an asset, because treaty obligations become embedded in domestic law and administrative routine where reversal is costly, and because most non compliance arises from capacity failure rather than deliberate defection and is therefore remediable by assistance rather than by penalty. The instruments that follow are the managerial ones: reporting requirements, peer review, technical support, and compliance committees that are non adversarial by design. The Montreal Protocol is the standard illustration, and its implementation committee has resolved far more cases than any sanctions regime.

Two structural points follow from the article’s own material. The Articles on State Responsibility were never adopted as a convention, and the reason is instructive: the provisions on countermeasures and on the consequences of serious breaches were the sticking point, because states with capacity feared constraint and states without it feared licence. That the Articles are nonetheless cited routinely by courts and tribunals as customary law demonstrates that formal adoption is not the only route to authority, and the record suggests they have been more influential unadopted than a heavily amended treaty would have been. And the aspect the author touches on and could develop is that the enforcement gap narrows considerably where compulsory jurisdiction exists: the dispute settlement systems of the World Trade Organization and of the law of the sea produce compliance rates that bear no resemblance to the general picture, because the alternative to compliance is defined in advance and applied by a body neither party controls.

Two suggestions belong here for a journal of this field. The remedies the article treats as exhausting the options are the adversarial ones, and treaty regimes increasingly provide for others: conciliation is available under the Vienna Convention itself, and mandatory conciliation under the Law of the Sea Convention produced a settlement between Timor Leste and Australia on a maritime boundary that adjudication had failed to resolve for decades. Where a dispute concerns interpretation or implementation rather than deliberate repudiation, these mechanisms are faster, cheaper and available to states that could not sustain litigation, which addresses the inequality the author correctly identifies.

Finally, the article’s argument about power carries an implication worth stating. If remedies are effectively reserved to those able to impose costs, then the interest of weaker states lies in strengthening institutional enforcement rather than in preserving the right of self help, since the latter is a right they cannot exercise. That coalition exists, and it accounts for much of the support among smaller states for compulsory jurisdiction, standing tribunals and treaty bodies. The observation that international law favours the strong is usually offered as a criticism of the system; it is more useful as an argument for the part of the system that does not.

* Added by the WMO Editorial Team

REFERENCES

[Bibliography and footnotes as in the original manuscript]

Supplementary references added by the WMO Editorial Team

Articles on Responsibility of States for Internationally Wrongful Acts, International Law Commission, 2001, Articles 41, 42, 48, 49 to 54.

Vienna Convention on the Law of Treaties, 1969, Articles 60, 65 to 68 and Annex on conciliation.

United Nations Convention on the Law of the Sea, 1982, Annex V, and the Timor Sea Conciliation between Timor Leste and Australia, 2016 to 2018.

Montreal Protocol on Substances that Deplete the Ozone Layer, 1987, and the Non Compliance Procedure and Implementation Committee.

Chayes, A., & Chayes, A. H. (1995). The New Sovereignty: Compliance with International Regulatory Agreements. Harvard University Press, Cambridge.

Koh, H. H. (1997). Why Do Nations Obey International Law? Yale Law Journal, 106(8), 2599 to 2659.

Simmons, B. A. (2009). Mobilizing for Human Rights: International Law in Domestic Politics. Cambridge University Press, Cambridge.

Crawford, J. (2013). State Responsibility: The General Part. Cambridge University Press, Cambridge.

The Role of Leadership and Individual Political Leaders in the Success and Failure of International Negotiations: A Comparative Discussion of the Iranian and Korean Nuclear Cases

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

EDITORIAL NOTE *

The author of this article works at the United Nations High Commissioner for Refugees; the views expressed here are his own and do not reflect the official position, past, present or future, of the United Nations or of UNHCR. The assessment of the states and individual leaders discussed reflects the author’s own perspective; this journal’s editorial position is neutral.

ABSTRACT *

This article examines why negotiations over the nuclear programmes of Iran and North Korea have remained inconclusive across several decades, and locates the explanation in two places: the leadership systems of the states involved and the conduct of individual leaders. The author traces the Iranian case through the absence of public pressure under an authoritarian system, the effect of the 2013 election on the agreement of 2015, and the consequences of the American withdrawal from that agreement. The Korean case is traced from the Geneva Conference of 1954 through eleven American administrations, with attention to the Agreed Framework, the axis of evil designation, and the policy of strategic patience. Misperception, distrust, provocation and the substitution of ideological confrontation for technical negotiation are identified as recurring features. The article closes with proposals, including the prioritisation of negotiation over sanctions, frank engagement at presidential level, unofficial and preventive diplomacy, the use of side payments, and an analysis of each party’s best alternative to a negotiated agreement.

KEYWORDS *

Nuclear negotiations, Iran, North Korea, JCPOA, Agreed Framework, denuclearisation, sanctions, misperception, side payments, BATNA, unofficial diplomacy, leadership

INTRODUCTION

Different historical conflicting situations reveal how the leadership systems and individual personalities, characters, and egos contributed to the outbreak of wars. It happened during the World Wars, the Cold War, the Indochina War, the Persian Gulf War, and elsewhere. The same was true for Iranian and North Korean nuclear cases. For these particular Iranian and North Korean atomic cases, it is surprising how bilateral talks on initial energy nuclear programs escalated into high-tension conflicts and became decades-long inconclusive multilateral negotiations. The leading factors of these inconclusive negotiations were the superpowers, concerned states’ leadership systems, and the personalities of high-level political leaders. Therefore, it is vital to examine the role of countries’ leadership systems in these two cases, the characters and personalities of leaders who have taken their countries into decades-long hatred, political, and military tension, and how misjudgments and misperceptions have affected history. In the present paper, I will critically reflect on the failure of the countries’ leadership systems in the denuclearization negotiations and the role of individual political leaders in escalating the conflict and complicating the talks. Finally, I will make a few recommendations as alternative ways to manage these high-tension cases.

MAIN CORPUS

The leadership systems as the cause of inconclusive negotiations

Inconclusive negotiations over the denuclearization issue have long preoccupied the Iranian, US and North Korean diplomatic relations. Surprisingly, these negotiations have resulted in high-tension conflicts, which signifies the failure of the concerned countries’ leadership systems.

The US Iranian diplomatic relations and denuclearization talks were characterized by Iranian resistance to American pressure on ideological development for both sides, while Americans deviated from the real issue to other issues of human rights and terrorism. Equally, Iran strengthened its authoritarian regime and developed its nuclear program, while the USA promoted and implemented its maximum pressure and sanctions against Iran.

The Iranian regime as a cause of difficult bargaining and economic sanctions

In authoritarian political regimes like Iran, where public opinion is absent, the public cannot influence the lifting of sanctions as they inevitably affect the lives of citizens. In other words, in authoritarian political regimes, the public discontent that pushes the leadership to change the policy and influence the lifting of sanctions is often absent. In this respect, economic sanctions are more likely to have a positive impact when people can express dissatisfaction in elections, influencing policy-makers. A typical example is the 2015 Iran nuclear deal, primarily reached because of the 2013 presidential elections. Hassan Rouhani was a moderate leader who pledged to lift economic sanctions[1]. Afterward, sanctions increased and became severe as the leadership strengthened the dictatorship system and confrontation with the USA.

American leadership’s failure to de-escalate the nuclear conflict

Diplomatic relations between the USA and Iran and negotiations on Iranian denuclearization have always been up and down as the Americans successively changed their political leaders. However, tensions between the USA and Iran escalated during the Bush administration, putting the two countries on the verge of war[2]. Inspired by his philosophy of defeating and ruling, Bush refused to negotiate with Iran during his entire presidency, even on other issues of such importance as Iraq and Afghanistan. Consequently, the Bush administration created negotiation roadblocks for his successors. Despite extensive outreach, clear strategic benefits, and an unprecedented opportunity for engagement, the Obama administration got stuck in the same confrontational relationship with Iran as that of other American presidents before him. The same happened when the Biden administration could not redress damages caused by his predecessors with Iran[3].

North Korea, as a country seeking the survival of its regime, wanted a security guarantee from the USA; that way, it could disable and dismantle its nuclear arsenal. Regrettably, successive US administrations have failed to offer and guarantee a security arrangement acceptable to North Korea and have repeatedly walked away from opportunities to strike a deal. The leading cause was the persisting US attitudes of using rhetoric and temporarily suspending the planned negotiations, pervasive approach, ideological posturing, and confrontation over compromise[4].

Misperception, distrust, fear and provocation as negotiation factors

How people perceive needs, interests, values, or goals and how they become intense in their minds or interpret them is another source of the conflicts. The negotiations over the denuclearization issue in Iran and North Korea were founded on fear of all sides, distrust, misperception, and provocation at the presidential level. However, negotiators should understand the value of clarifying how they perceive the issues and their internal difficulties or perceptions about another party to limit the escalation of the conflict[5].

American misperception in the North Korean case marked mismanagement of the crisis for over fifty years by linking military and political issues when they should have handled them separately. Moreover, an American unwillingness to settle consisted of failure to reciprocate the Korean concessions, collaborate, or validate any positive step Koreans made in the negotiation process. Though some American presidents like Clinton and Obama made significant steps to vitalize the negotiation process, others like Bush and Iranian president Ahmadinejad demonstrated provocative and arrogant behaviors, focused on defeating rather than compromising, which complicated the talks[6]. Simultaneously, Iran continued to declare its anti-Israel ideology and connection to Islamic extremists such as Hezbollah and Hamas[7].

The USA feared that the North Korean nuclear technology program should threaten the USA itself and the region in general since North Korea could supply atomic weapons or technology to terrorist organizations for self-defense or as revenge after the collapse of the North Korean government[8].

The strive to resist United States negotiation pressure tactics

The International Atomic Energy Agency reports revealed that Iran could produce enough fissile materials for its nuclear assets[9]. This Iranian atomic progress signaled a total failure of the American negotiation system when it opted for using military deterrence and instilling fear in the counterparts of being attacked. It also proves that a developing country can survive and resist the superpowers’ pressure, including military and economic force tactics, external sabotage, and sanctions. In doing so, Iran did not stop expelling inspectors, jeopardizing control systems, or resuming prohibited activities[10].

The USA made a wrong decision in withdrawing from the Joint Comprehensive Plan of Action because it enabled Iran to improve its nuclear facilities. Consequently, Iran has developed over 3000 kilograms of enriched uranium, ten times what the JCPOA allows. After all, Iran was limited to 300 kilograms of low-enriched uranium[11]. Iran ended up owning 500 kilograms of 20 percent uranium and more than 120 kilograms of 60 percent uranium[12]. These data signal the results of Iranian resistance against American maximum pressure and its ideology of fighting the wrong cause.

Negotiating over ideology instead of denuclearization

Beforehand, I must recall that North Korea survived fifty years of American sanctions, including a complete ban on all financial transactions between the two countries[13]. This long and challenging period complicates diplomatic negotiations unless diplomatic actors change the game’s rules. Shockingly, different American leaders kept threatening sanctions, which would inevitably cause North Korea to resist any American threat.

Negotiations of nuclear programs in Iran and North Korea became ideological negotiations or red communism versus Western imperialism fights. Americans claimed they feared that Kim Jong-il would provide nuclear weapons or technology to terrorists; Americans used that claim as a propaganda trick rather than a real problem[14]. Therefore, I can infer that the American policy of destroying Kim Jong-un’s regime could be the cause of providing nuclear weapons or technology to the terrorists as an act of revenge.

Worse than that, this ideology complicated the negotiations over the nuclear program because each side believed itself to be correct and that the other side was not only wrong but did not even have the right to exist. Worse again, intervention and involvement by China, Russia, Japan, and South Korea rendered the negotiations impossible since all players were culturally and politically different[15]. In this process, the brutal reaction of Kim Il-sung in response to the US threats of imposing tough sanctions against North Korea caused him to decide not to strain with the rest of the world, especially the USA, while continuing nuclear research in the country[16].

From direct bilateral to multilateral negotiation frameworks

As Washington has shifted from a primarily bilateral framework during the Clinton Administration to a mostly multilateral framework during the Bush and Obama Administrations for addressing North Korea, the centrality of China’s role in dealing with Pyongyang has become increasingly pronounced. The inevitable involvement of China was because North Korea depended on China’s economic aid and diplomatic support for its survival[17].

In that sense, I applaud Obama’s enthusiastic attempts to address nuclear weapons and arms control, especially by signing agreements with Russia. After his commitment to work toward a world free of nuclear weapons in April 2009, Obama took steps to further that goal, including a new nuclear arms reduction treaty with Russia[18], convening a global leaders’ summit to secure stockpiles of nuclear materials, and releasing a Nuclear Posture Review that outlines new US guidelines on the use of atomic weapons[19].

Precipitating on sanctions as a wrong move

The North Korean case is one culminant example signaling the wrong American leadership approach by precipitating sanctions. North Korea has also been heavily sanctioned, but this policy instrument has been ineffective, counter-productive, harmful to human life, and caused regrettable political and economic insecurity among the civilian population. Despite these sanctions, North Korea continued to test nuclear missiles[20]. Human rights violations became terrible, which pushed the UN Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea to recommend that the North Korean case be referred to the International Criminal Court[21].

The impact of the maximum pressure ideology

As I emphasized earlier, fear, distrust, and misperceptions had been the leading factors in the Iranian, US and North Korean diplomatic relations. For the North Koreans, the invasion of Iraq in 2003 by Americans[22] had been a memorable lesson for any developing country. The same was true for North Korea when negotiating with Americans under threats and pressure. The fear that the Iraqi invasion experience created in the Korean leaders made them consider that they would accept negotiations for the only interest of the regime’s survival[23].

From this view, I understand that despite their acceptance to negotiate, North Koreans would weigh every step very carefully and could be cautious about making any concessions that could make them more vulnerable. In other words, North Koreans were unsure if negotiations with Americans were genuine since they learned from Iraq that Americans use negotiations as an international relations tool to use later on the failed talks as a pretext to attack the other side[24]. On the other side, Americans believed North Korea was using negotiations to buy some time to improve its nuclear weapons[25].

The role of individual political leaders in complicating the negotiation process

In the section above, I discussed the role of leadership systems in complicating the denuclearization negotiations and escalating the conflict altogether. Conversely, individual leaders at the presidential level and the generals played a regrettable role in these deplorable negotiation situations. Their misperceptions, impulsivity, beliefs, fear, and hatred pushed them to mislead the entire leadership system and make decisions that ravaged many people’s lives. Their acts and behaviors consisted of verbal provocation, resisting any peaceful alternative, and making harsh decisions to increase the other side’s tension.

MacArthur and Truman’s military response to the failed negotiations

Beforehand, I must observe that Truman’s doctrine of protecting the free world elsewhere was a pretext to use military forces according to his choice, but I still question the legitimacy and effectiveness of that protection. In achieving his goals, Truman was ready to take responsibility for the most crucial decisions, believing that the right choices lie under the leader’s responsibilities[26]. Like Berchtold’s decision to send an official ultimatum to Serbia[27], when negotiations with North Korea failed in 1950, Truman and MacArthur attacked North Korea without recourse to Congress’ approval[28]. In all his declarations and communications, Truman increased the tension and made the war inevitable.

In all this process, the blind trust and admiration that Truman and Secretary of State Acheson had for him caused MacArthur to mislead Truman and the entire US system about the Chinese incapacity to intervene in the North and South Korean war in response to the US crossing the thirty-eighth parallel. Like Hitler with the Soviet Union in the Second World War[29], MacArthur underestimated the Chinese army’s capacity by presuming that they were exhausted by the Manchurian war, not well-equipped, and too late for them to intervene[30]. In doing so, he exaggerated the US army’s capacity while underestimating the Chinese ability to intervene.

The provocative acts of Kim Jong-il and the maximum pressure policy

North Korea has initiated several provocative acts, including an apparent ruinous attack on a South Korean warship that killed 46 South Korean service members in March 2010[31]. As the international community took measures to respond to the aggression, pressure was building on China, the North’s sole ally and benefactor, to punish North Korea by enforcing international sanctions or cutting off some aid[32]. In addition to North Korean provocative behaviors toward the USA since 1994, North Korea’s nuclear program has usually been prioritized above North Korea’s human rights record, missile program, and illicit and criminal dealings.

Korea’s provocations after Obama took office included a second nuclear device test[33], the expulsion of US and international nuclear inspectors, and a declaration that it would never return to the talks. These Korean behaviors halted progress on furthering negotiations, most significantly in 2009. The United Nations Security Council unanimously passed Resolution 1874 in response to the nuclear test, which outlines a series of sanctions to deny financial benefits to the regime in Pyongyang[34].

However, an American strategic patience policy that essentially consisted of waiting for North Korea to come back to the negotiations while maintaining pressure through economic sanctions and arms interdictions did not work out because it allowed Koreans to control the situation, while fears of further nuclear advances and possible proliferation build[35].

More than six decades of failed denuclearization negotiations

Starting in 1954 at the Geneva Conference, the Soviet Union, China, the USA, the United Kingdom, and France gathered to decide the Korean Peninsula and Indochina issues. Surprisingly, the acts and behaviors of US Secretary of State John Foster Dulles of maintaining an intractable position on capitulation from his adversaries, refusing to shake Zhou Enlai’s hand, and leaving the conference early signaled American bad faith negotiations to settle the political issue with both China and North Korea despite the 1953 armistice that both sides signed in the Korean war[36].

The Kennedy and Johnson administrations did not improve relations between the US and North Korea, which continued to deteriorate after the shooting down of a US spy plane by North Korean aircraft over the Sea of Japan, and the interception and capture of a US Navy intelligence vessel[37]. Despite North Korea’s leader Kim Il-sung’s endeavors to reach a peace agreement in replacement of the armistice treaty, these sounded to a deaf ear to successive American administrations, namely Nixon, Ford, and President Jimmy Carter. The situation worsened during President Ronald Reagan and Bush’s administrations because they did not seriously consider negotiating a peace treaty[38].

Efforts made by President Bill Clinton to achieve a resolution of the frozen Korean conflict were nullified by George W. Bush’s decision to put North Korea on the list of the axis of evil. Consequently, the Clinton and George W. Bush administrations failed to deter North Korea from developing nuclear facilities and testing nuclear weapons and to keep North Korea from proliferating nuclear weapons technology and materials to states of concern to the United States[39].

The strategic patience policy under the Obama administration since 2009 that relied on sanctioning and targeting a collapse of the North Korean regime did not generate any promising results but enabled Kim Jong-un to increase his country’s nuclear tests and intercontinental ballistic missile launches, coupled with more frequent demands for a peace treaty[40]. The game became difficult for the Trump and Biden administrations because now North Korea is a nuclear state; both administrations did not manage to correct the errors of their predecessors. President Joe Biden adopted a different strategy of seeking a quick return to the 2015 Iran nuclear deal[41]. In that process, he decided to end the Trump administration’s maximum pressure campaign. Despite all these efforts, Iran expanded its nuclear program because by August 2021, Iran was producing uranium metal, a material used to make atomic weapons[42].

Prioritizing negotiations instead of sanctions

When analyzing the conflicting situations, it is inevitable to use counterfactuals. In that trend, I discussed the role of the leadership systems in the concerned countries and individual political leaders as the factors that escalated the nuclear conflict and rendered the denuclearization negotiations inconclusive. In this section, I will critically reflect on other alternatives, including the best alternatives to the negotiated agreements, that should pave the way for fruitful negotiations or close the denuclearization deal positively.

As I emphasized above, the North Korean and Iranian situations should be a wake-up call for decision-makers regarding comprehensive sanctions because they enabled them to develop their nuclear program further instead of discouraging it[43]. Said otherwise, economic sanctions cannot be effective if policy-makers have a strong will and believe there are more benefits to continuing the policy than any financial burden that can be placed on them[44]. More specifically, in the case of North Korea’s nuclear development, Kim Jong-un, who had a dictatorial authority to make policy decisions, recognized that the development and possession of nuclear weapons was the most crucial issue for his country’s survival and had not stopped nuclear development despite these sanctions[45].

Although economic sanctions could hamper North Korea from acquiring necessary materials for nuclear development, it has been able to get these materials and continue its policy by developing on its own, smuggling, and other means of evading sanctions[46]. Additionally, although North Korea lacked the funds necessary for nuclear development, it could get them through cryptocurrency theft in cyberspace[47]. Without a doubt, economic sanctions cannot be very effective if loopholes can be exploited by the concerned state, such as in the case of Korea.

The need for frank and objective negotiation at the presidential level

The negotiations over the North Korean and Iranian nuclear programs remained inconclusive and escalated into complex conflicts because of the role of provocation at the presidential level. Therefore, it was necessary to stop political provocation at the presidential level, help calm the tension between Japan and North Korea, and honor the promises made by other powers. Additionally, it was crucial to remove North Korea and Iran from the list of sponsors of terrorism, which was an American pretext for creating enemies[48].

The arms control treaty negotiations are a memorable example of how frank and objective talks at the presidential level can be the engine of conclusive negotiations. In these negotiations, Mikhail Gorbachev played a vital role in ending the Cold War, adopting and implementing disarmament programs, and re-establishing the world order. He also prioritized modernization of the economy over military capacity, and his frank collaboration with the UN, the USA, and other superpowers and middle powers played a non-negligible role in implementing the disarmament program[49].

In these particular Korean and Iranian cases, I agree with Armitage that diplomacy must be centered at the presidential level and closely coordinated with six parties, the United States, Russia, China, Japan, South Korea, and North Korea, to close the nuclear deal and protect the interests of the concerned states and their allies[50]. Therefore, South Korea, Japan, China, and Russia should influence both sides to make unprecedented progress because, in the North Korean case, the US and Japan’s unwillingness to negotiate with North Korea caused the latter to be more resistant and uncooperative[51]. In the Iranian issue, the latter was cooperative and committed to partnering with Britain, France, and Germany but was worried about its security after being put on the list of the Axis of Evil by Americans[52].

Promoting an unofficial diplomatic approach

Negotiating and resolving complex and high-tension conflicts requires particular settings that enable a clear and deep understanding of the causes, active involvement of the concerned parties, and solutions that meet their interests. Uncontestably, I understand that this process requires an immeasurable amount of time and patience for the actors and facilitators, which is difficult for official diplomatic actors. Therefore, an unofficial diplomatic approach could be fruitful in North Korea’s and Iranian nuclear negotiations.

A good example is shuttle diplomacy by former US President Jimmy Carter in June 1994, which made a difference and helped solve the problem. Carter used his informal diplomacy to convince Kim Il-sung to freeze the nuclear program and resume negotiations that produced the document known as the Agreed Framework[53].

Focusing on the involvement of private individuals in mediation

The Israeli Arab conflict is one of the leading examples of the successful involvement of private mediators in complex cases. The Israeli Arab war had reached an uncontrollable tension because neither side was able to understand the fears of the other. That way, Arabs were so intent on restoring their dignity and regaining lost ground that they believed they had won even though they had lost, and Israel wanted to give them a memorable lesson. The confrontation between the USA and the Soviet Union through the supply of military equipment would end in a direct battle and finally in another world war. That way, Kissinger’s mediation role was critical, and his strategy of avoiding a pro-Israel nor a pro-Arab position, but essentially pro-equilibrium, enabled both sides to cool down and agree to meet face-to-face for diplomatic talks[54]. I realize that Americans through Kissinger were playing both sides to create a military balance that would induce both parties to accept diplomatic discussions. Kissinger’s approach involved building friendships with critical individuals and calming the tension[55].

In these particular Iranian and North Korean cases, diplomatic relations and all previous negotiation attempts have already damaged the psychological aspects of both sides, putting tension and the entire world on high alert. Based on the Israeli Arab example I discussed above, I can infer that there was a need to focus on informal talks involving unofficial diplomatic actors, including private individuals or NGOs.

Involving and empowering non-governmental organizations

Non-governmental organizations go beyond the works of official diplomats and intermediaries in facilitating complex negotiations. In that process, they create a better historical account of the issues, provide educational opportunities to the parties to better address the problem, and serve as information channels[56]. More particularly, NGOs operate independently from power politics, which increases their trust in the parties in conflict. In short, I can infer that involving and empowering NGOs as intermediaries and mediators in these negotiations over the nuclear weapons projects was essential[57].

Strengthening preventive diplomacy

Preventive diplomacy could best suit these cases by preventing them from escalating into high-tension conflicts or limiting their spread in the region[58]. I must recall that in both cases, the nuclear weapons programs started as nuclear energy projects but developed and expanded as the negotiations failed, tension became high, spoilers intervened, and more actors intervened while the matter of issue changed. Alternatively, there was a need to maximize the use of early warning systems and, if necessary, persuade the concerned parties to accept a peaceful conflict resolution process. In both cases, the concerned parties should honor their concessions of alternative nuclear energy production and compensation for loss resulting from the cancellation of these projects[59]. Moreover, it was critical to persuade the Soviet Union, China, Japan, South Korea, and some European countries such as Germany, Great Britain, and France to support peaceful and civilian energy production projects and bridge the negotiation gaps.

Concretization of side payments as a foundation for fruitful negotiations

Any fruitful negotiation needs to shift actors’ interests, but side payments can be critical if they resist and stick to their positions despite all persuasive attempts[60]. The latter can be tangible, material, emotional, promise, symbolic, or psychological. I must emphasize that high-context cultures, including North Koreans and Iranians, encourage side payments[61]. In this respect, I understand that once the concerned countries honored their commitment and concessions, it should have paved the way for fruitful negotiations with North Korea and Iran.

The Clinton administration made a tremendous step in continuing Carter’s work by providing some side payments to North Korea. These side payments consisted of five hundred thousand metric tons of heavy oil for electrical energy production, trying to compensate North Korea for the loss of electrical energy that North Korean nuclear reactors would have produced as part of the agreement’s implementation and sending unconditional food to North Korea[62].

However, it is regrettable that George W. Bush rendered all the previous efforts in vain by creating political confrontations with the North Korean leadership, putting North Korea on the axis of evil, and insulting his counterpart[63]. These malpractices caused the DPRK to threaten Americans by starting its nuclear reactor to compensate for the electricity loss caused by delays in the construction of the promised two light-water reactors[64]. The Bush administration considered any side payment rewarding North Korea for destructive behaviors[65]. From these discussions above, I can deduce that sanctions against North Korea are among American leadership’s mistakes in the communist community because the more the USA applied sanctions, the more communist members increased unity and support among themselves.

Focusing on the parties’ best alternatives in the absence of agreement

The sections above critically discussed the decades-long inconclusive negotiations and conflict escalation. That way, reflecting on the players’ best alternatives in the absence of agreement is critical; these alternatives could go beyond the negotiation process and UN sanctions. Beforehand, I realized that the Iranian BATNA was challenging to predict since it was inconsistent in negotiations about security, Islamic rights, or economic interests over oil and gas.

The Iranian BATNA was to be removed from the list of the Axis of Evil, which could reduce its fear of being attacked by Americans. That way, Iran could minimize its resistance against monitoring of its nuclear program, keeping its active role in political stability in the Middle East through its active involvement in countries like Afghanistan, Iraq, Lebanon, and Syria, which would help them resist Israeli and American threats, and its influence on the world financial market through oil and gas[66]. Conversely, the Israeli best alternative was a final agreement that could prevent Iran or Hezbollah from establishing a permanent Iranian presence on the Israeli borders to avoid future instability[67]. In that trend, I realized that Iran had no other way to achieve its goals than threatening to withdraw from the NPT, not cooperating, and expelling the IAEA experts. Iran perceived keeping a nuclear program as a vital aspect of the survival of its regime based on experience learned from Pakistan and North Korea. Understanding that the West might try to pressure Iran to desist, Iran sought to reach an agreement granting it nuclear development to some level, forcing the West to accept reality and lift sanctions[68].

I support the French proposal of updating and clarifying the withdrawal provisions of the treaty by the UN Security Council or NPT parties to preclude a country from calculating that it could not comply with its safeguards and other obligations and then withdraw without consequences[69] because when the treaties are difficult to implement, the party’s last option is to withdraw from it. On the other side, the US best alternatives consisted of reaching an agreement that could enable it to control the financial aid to Iran through the isolation of Iran from the global financial system through the European and Asian bankers[70]. This way, the USA strived to persuade bankers across Europe and Asia to obstruct Iran and North Korea from accessing the world financial system[71]. This alternative enabled export control regimes and counter-proliferation initiatives like the Proliferation Security Initiative, which have helped monitor the flux of sensitive goods and technology from and to Iran.

Unquestionably, the European alternative was trade and business-oriented because they were against the Iranian nuclear program but sought an alternative that advantaged business opportunities with Iran. They did not advance a viable option to a negotiated agreement supported by the IAEA and UN Security Council. Conversely, they used a dual strategy of privileging negotiations while preparing for incremental and reversible restrictive measures[72]. Apart from the trade cooperation agreement and the political dialogue, the European Commission committed to assisting Iran in counter-narcotics, disaster relief, refugee repatriation and human rights initiatives if Iran was willing to suspend its uranium enrichment and reprocessing activities[73].

On the other side, China and Russia had divergent geopolitical, security, and economic interests with other permanent members but helped Iran avoid harsh measures, another way to protect their interests[74]. It pushes me to infer that this Iranian resistance against drastic measures undermined a hurting stalemate, often presenting an ideal opportunity for actual negotiation and a potential settlement.

The best negotiation alternatives in the North Korean case

Like in Iran, North Korea’s best alternative was to seek a nonaggression treaty, respect for North Korea’s sovereignty, and US willingness not to obstruct North Korean economic relations with other countries and relevant international financial institutions. It has reinforced concern for North Korea to negotiate whatever security assurances it could but hold on to at least some form of a nuclear weapons program[75]. In other words, the North Korean alternative sought a peace guarantee before anything else, including food. Otherwise, the nuclear program was their only option for survival[76]. Other parties’ ultimate goals seemed a distant dream, such as South Korea and Japan; they sought the reunification of the entire Korean peninsula as it happened for Germany. If not, their alternative was to incorporate North Korea into international trade and cooperation, especially into the Korean peninsula’s gas and electricity energy system[77], simultaneously seeking a nuclear-sharing arrangement in Northeast or East Asia. Undoubtedly, any best solution for North Korea would also benefit the South.

In the North Korean and Iranian crises, the best alternative for the Russians and Chinese was to reach an agreement that secured their business advantages in the Korean peninsula and border security. Russians were ready to supply gas and electricity in these negotiations if South Korea could help North Korea pay for it. Equally, China planned a gas pipeline into South Korea through the North[78]. On the other side, the US alternative was to reach an agreement that would make North Korea secure enriched uranium fuel for light-water reactors from outside North Korea. This alternative would give the USA leverage on the fuel supply in case North Korea violated the Agreed Framework because exercising the US influence over the fuel supply would require potential fuel suppliers like China and Russia to coordinate their policies with the USA[79].

SUMMARY *

The article’s contribution lies in its insistence that these were negotiations before they were confrontations, and that what turned them is traceable to identifiable decisions. Both programmes began as civil energy projects; both became weapons programmes as talks broke down; and in each case the author identifies moments at which a different choice was available and was not taken. The recurring pattern he describes is a mismatch of what each side was negotiating about: one party sought a technical settlement on enrichment and inspection, the other sought assurance that it would still exist afterwards, and pressure applied to the first question intensified anxiety about the second. From this the author derives his central practical claim, that agreements in these cases have held when a security guarantee accompanied them and collapsed when it did not.

CONCLUSION

The decades-long negotiations over the nuclear programs in North Korea and Iran failed due to the actors’ fear of being cheated, lack of accurate information or miscommunication between them, misperception of the issues and the parties, impulsiveness, and subjective decisions by the political leaders. These two nuclear technology problems prove the leadership and individual political leaders’ failure to solve the issues peacefully. Additionally, the complex nature of these cases consisted of a combination of political, technological, informational, and emotional difficulties. The common denominator for these cases is a misperception of the parties’ interest, personal biases, the negative role of individual leaders in escalating the problem by direct verbal provocations, failure to learn and change positions, and limited cooperation toward the negotiation process.

The countries’ leadership systems, mainly American and individual political leaders, mark a negative historical memory and constitute a vast field of research. In this paper, I critically discussed how political leaders’ leadership systems and individual personalities contributed to decades-long inconclusive negotiations in North Korea and Iran. However, many other factors contributed to the escalation of the crisis; these include the North Korean missile program, illicit activities, connection with terrorist organizations, and poor human rights records in both countries. These factors have been the pretext for Westerners to justify their intervention and impose their policies.

Considering the impact of these failed negotiations on the concerned states and indirectly on the international community, there is a need for a different approach. Therefore, it is critically important to undertake frank and objective negotiations, especially at the presidential level. That way, any other attempts, including pressure, military and economic sanctions, could only worsen the situation. These cases started as bilateral negotiations and turned into multilateral ones with the involvement of Russia, China, Japan, South Korea, Great Britain, and Germany as the conflicts escalated. In that context, these external parties should play a significant role in bridging the negotiation gaps.

Furthermore, these issues have become more complex and polarized than expected; the concerned countries are now officially nuclear. Consequently, fruitful diplomatic negotiations become a distant dream. Alternatively, focusing on informal mediation by involving non-official actors such as private individual mediators, NGOs, and experts is beneficial. Finally, though destroying the Iranian or North Korean nuclear facilities is difficult, I optimistically believe that effective negotiations can alter their prospect and spread. That way, the concerned great powers should honor their commitments, especially by granting security in case of disarmament and providing due side payments.

POTENTIAL SOLUTION *

The article’s most durable finding concerns commitment, and it is worth naming as the technical problem it is. Both parties in each case face the same difficulty: any concession one makes today can be reversed by the other tomorrow, and neither can bind its own successors. A state that dismantles a nuclear programme cannot rebuild it quickly; a state that lifts sanctions can reimpose them in an afternoon. The asymmetry is structural, and it explains far more than personality does. The American withdrawal from the agreement of 2015, whatever one concludes about its merits, demonstrated to every potential counterpart that an American commitment survives only until the next election, and the lesson was not lost on Pyongyang.

Practice offers partial remedies and they should be named. Phased implementation with reciprocal steps limits what either side risks at any moment. Legislative or treaty ratification, rather than executive agreement, raises the cost of reversal. Multilateral guarantees make unilateral abandonment more expensive, which is what the endorsement of the 2015 agreement by the Security Council was intended to achieve. Third party custody of sensitive materials, as in the removal of enriched uranium from Iran, creates facts that are hard to undo. None of these solves the problem; together they narrow it.

The distinction the author draws between the two cases deserves to be sharper because it determines what is now possible. Iran has not built a weapon and remains a party to the Non Proliferation Treaty, which means prevention is still the operative frame. North Korea has tested weapons, has withdrawn from the treaty, and has written its nuclear status into its constitution, which means denuclearisation is no longer a realistic near term objective however often it is restated as one. Continuing to demand it as a precondition for talks guarantees no talks. The alternatives, a freeze on testing and production, limits on delivery systems, and arrangements to reduce the risk of accidental escalation, are all achievable without conceding recognition as a nuclear state, and they are what arms control has historically consisted of.

Two additions would strengthen the analysis. The article treats sanctions as a straightforward failure, and the record supports scepticism about their power to compel while showing something more specific: sanctions have never produced a decision to disarm, and they have twice contributed to bringing a party to the table when relief was tied to a defined and reachable settlement. Pressure without a path leads nowhere; a path without pressure has no urgency. And the domestic dimension the author raises in passing for Iran applies equally to the United States, where the ratification requirement and the electoral cycle constrain what any president can offer. Negotiators who ignore what their counterpart can actually deliver at home produce agreements that fail at implementation, which is a recurring finding across every case this journal has examined.

Finally, the recommendation to involve unofficial actors is well founded and worth grounding in what such channels have actually accomplished here. The Carter mission of 1994 is the author’s own example and it succeeded because a former head of state could say things a serving administration could not, and could be disavowed if it failed. Technical dialogues among scientists preceded and informed the Iranian agreement. Neither replaced official negotiation; both created the understanding that made it possible. That is the realistic claim for track two work in nuclear diplomacy, and it is a substantial one.

* Added by the WMO Editorial Team

REFERENCES

[Bibliography and footnotes 1 to 79 as in the original manuscript]

Supplementary references added by the WMO Editorial Team

Agreed Framework between the United States of America and the Democratic People’s Republic of Korea, Geneva, 21 October 1994.

Joint Comprehensive Plan of Action, Vienna, 14 July 2015, and United Nations Security Council Resolution 2231 (2015).

Treaty on the Non Proliferation of Nuclear Weapons, 1968, Articles III, IV and X.

Joint Statement of the Fourth Round of the Six Party Talks, Beijing, 19 September 2005.

Fearon, J. D. (1995). Rationalist Explanations for War. International Organization, 49(3), 379 to 414, on the commitment problem.

Sigal, L. V. (1998). Disarming Strangers: Nuclear Diplomacy with North Korea. Princeton University Press, Princeton.

Parsi, T. (2017). Losing an Enemy: Obama, Iran, and the Triumph of Diplomacy. Yale University Press, New Haven.

Hecker, S. S. (2023). Hinge Points: An Inside Look at North Korea’s Nuclear Program. Stanford University Press, Stanford.

Alternative Solutions for Persisting Post-Independence Intra-State Conflicts in Sub-Saharan Africa

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

EDITORIAL NOTE *

The author of this article works at the United Nations High Commissioner for Refugees; the views expressed here are his own and do not reflect the official position, past, present or future, of the United Nations or of UNHCR. The historical account and the attribution of responsibility to particular states and actors reflect the author’s own perspective; this journal’s editorial position is neutral.

ABSTRACT *

This article examines why efforts to resolve intrastate conflicts in Sub Saharan Africa have not produced lasting results, and locates the answer in a failure to address the causes rather than the symptoms. The author surveys the colonial inheritance of borders drawn without regard to ethnic distribution, the absence of institution building before independence, and the consequent concentration of power in security apparatuses rather than in administration. Particular attention is given to the role of natural resources, illustrated through the Democratic Republic of the Congo, to the genocide committed against the Tutsi in Rwanda in 1994 and the militarisation of refugee camps that followed, to the conversion of local conflict into terrorism in Somalia, and to the internationalisation of internal disputes. The failures of both global and regional security mechanisms are then assessed. The article closes with proposals centred on home grown solutions, informal and preventive diplomacy, the involvement of non governmental actors, traditional justice mechanisms, and sustainable economic development, together with a critique of comprehensive sanctions.

KEYWORDS *

Sub Saharan Africa, intrastate conflict, colonial legacy, natural resources, Democratic Republic of the Congo, Rwanda, Somalia, preventive diplomacy, Gacaca, regional standby forces, responsibility to protect, sanctions

INTRODUCTION

Since independence, many Sub-Saharan African states have witnessed civil wars, mass killings, and other direct political violence. Local, regional, and global efforts have been produced on different occasions to resolve these conflicts but have not produced lasting results. The main reason for the failure of these efforts is that they have not addressed the root causes of these conflicts. In that sense, I argue that the best way to resolve the long-lasting disputes in Sub-Saharan Africa is to analyze, understand, and find solutions to the history-long nature and complex causes of these conflicts. Therefore, I will explore recurring causes of conflicts and wars in Sub-Saharan African countries, their particularity, and their consequences before I can propose related solutions in the last section of this paper. These causes include ethnic division, structural violence, exploitation and unequal distribution of resources and power, strife for self-determination, lack of the rule of law, political differences, and conversion to terrorism as the worst form of war. Worse, conflicts in this region have always been complex because, though they seem intra-state initially, they have often extended to threaten the entire area.

In this paper, I will not explore the status of every single state in Sub-Saharan Africa; instead, I will emphasize the countries where incessant local conflicts and civil wars have become significant determinants. These countries share some causes of conflicts though there can be particularities depending on the country’s historical background. However, I cannot assume to dress an exhaustive list of solutions to these conflicts because there is no single formula to resolve dynamic and complex conflicts. Instead, I am optimistic that the solutions I will propose in this paper can be the foundation for effectively resolving these persisting conflicts. In that trend, there is a need for empowering initiatives for local solutions, promoting peaceful conflict resolution mechanisms, strengthening preventive diplomacy, respecting global responsibility to protect, and especially promoting sustainable economic development that can guarantee reliable peace and security. Finally, I will make a few recommendations to the policy and decision-makers at local, regional, and global levels to ensure peace, security, and economic development that incessant conflicts and wars have long hampered.

MAIN CORPUS

An overview of intra-state conflicts in Sub-Saharan Africa post-independence

The period after World War II marked a change in the conflicts, from inter-state to intra-state wars. These types of disputes have been significant characteristics of many countries in Sub-Saharan Africa. These are complex and multi-faceted conflicts resulting from the struggles for self-determination, such as the war between Sudan and South Sudan, the Rwandese Patriotic Front (RPF), opposition groups in the Democratic Republic of Congo (DRC), the collapse of weak states such as Somalia, ethnic conflicts, civil wars between governments and opposition groups such as the Lord’s Resistance Army in northern Uganda, fight for natural resources, political differences. Other contests and battles include conflicts in Nigeria with Boko Haram, various armed groups in Chad and the Central African Republic, and al-Qaeda in the Maghreb in Northern Mali, to name a few. The negative side of these local conflicts is that they are internationalized with intervention by other states to support the government or opposition groups[1]. The worse scenario is the conversion of regional conflicts into terrorism, such as in the case of Somalia, and Genocide against one ethnic group, such as in the case of the Genocide committed against Tutsi in Rwanda in 1994.

Poverty, famine, diseases, internally displaced people, large numbers of refugees, and under-development are the factors proving the consequences of long-standing local conflicts and are significant determinants of many countries in Sub-Saharan Africa. These consequences include loss of human life, destruction of infrastructure, human capital, and institutions; political instability; and greater uncertainty associated with conflicts can impede investment and economic growth, not only during the battle but also afterward, making it difficult to escape the conflict trap[2].

The colonial legacy impact on local conflicts

Post-colonial Africa demonstrates that this region has been the home of wars and instability, particularly Sub-Saharan Africa. In other words, the regularity of conflicts in Africa has become one of the distinct characteristics of the continent[3]. Additionally, European colonizers in the 19th century created political units that divided ethnic groups in some cases and combined rival groups in others[4].

Poor governance, ethnic rivalry, mismanagement of natural resources, declining economic conditions, widespread poverty, and famine are consequences of colonization in Sub-Saharan Africa. Policies enacted during those eras promoted corruption, scarcity, and violent competition[5].

Additionally, in the pursuit of their interests, colonial rulers did little to establish systems and institutions of local governance and finance[6]. Unfortunately, this practice, which put one ethnic group against another, introduced frailty to the civic order. The situation began to deteriorate when African countries started movements for their independence[7].

I agree with Moe that African countries rushed for independence, forcing them to adopt modern self-governance democracy while they had little experience in it. In other words, colonial powers did little to prepare their colonies for independence[8]. In that trend, influential figures assumed or seized power and implemented measures to retain control rather than establish good governance[9]. That way, authoritarians built central solid-state structures, police, and militaries to help them maintain power while devoting little toward developing other essential institutions of management and finance[10].

Civil wars as the result of ethnic division and political differences

For many African countries, the most readily identifiable political category for identification and mobilization before colonization was ethnicity rather than class or territorial nation[11]. With European colonization, artificial political borders and colonial favoritism set the conditions for ethnic rivalry in all colonized societies. Since then, with ethnic groups seen as the primary units serving the interests of individuals, promoting ethnic-based interests became paramount, and the increase in power of one ethnic group was perceived as a relative decrease in the power of others and, therefore, a threat to their security and their interests[12].

Consequently, all political matters thus came to be viewed first through the ethnic lens and judged fundamentally regarding how they influenced the balance of power among ethnic groups, which resulted in intense inter-ethnic competition and increasing ethnic political parties[13]. Marginalization of some ethnic groups causes violent reactions by legitimizing any action to win power, even at the expense of the democratic system. Fraud in elections, one-party states, and abuses of power became the norm, forcing excluded groups to find other alternatives to protect their interests, such as military coups, secession, revolution, and, regrettably, internal civil wars that killed millions of people[14].

Pre and post-election insecurity

Chaotic reactions by citizens in opposition parties characterized the eve of the elections in Kenya. The political crisis led to chaotic economic situations, including the closure of factories, accumulation of delays in supplies, cancellation after cancellation of the tourists’ travel, and even the collapse of the stock market. Unquestionably, these crises caused the country’s impoverishment and the entire region because Kenya is the gateway for supplies to many landlocked countries in East and Central Africa[15]. In other words, this Kenyan political crisis tarnished the country’s image and potentially had short-term and long-term economic consequences for the country and its neighbors.

The decades-long internal crises include the cases in Burundi, the Genocide perpetrated against Tutsi in Rwanda in 1994, the long-standing conflicts and civil wars in Angola, Sudan, and the DRC, and pre and post-election riots and unrest in Uganda and Kenya[16]. For example, the Burundian security crises of 2013 and 2015 emanated from a disagreement on election results and respect for the Arusha Agreement. These revolts and conflicts caused the loss of many people’s lives, and others have been displaced[17]. Unsurprisingly, these conflicts result from social identities, such as ethnic polarization, the politicization of ethnicity, inappropriate representation, too long leadership and domination, insufficient political systems, democratic trends against political systems, inadequate handling of risky changes, and proliferation of conflict into other countries[18].

What makes intra-state conflicts in Sub-Saharan Africa complex and difficult?

Poverty, diseases, famine, unending political tensions, wars, and conflicts have been major characteristics of Sub-Saharan Africa. These factors have negatively impacted the region’s socio-economic development and, most regrettably, the loss of many lives. Uncontestably, socio-economic development cannot be sustained in an environment riddled with violence, instability, and insecurity[19]. Despite its natural resources and foreign aid, Sub-Saharan Africa alone counts 44 countries among 63 Least Developed Countries[20].

The Sub-Saharan Africa region has been the hub of armed conflict, Genocide, riots, and other civil wars since its independence. Since then, most Sub-Saharan African states have been governed through authoritarian, often military, dictatorships, and now most countries have elected leaders. Most conflict-related deaths and injuries in Africa have occurred in this region, and many people continue to suffer from insecurity and fear of violence[21].

The exceptional crime of genocide in the Great Lakes region

This exceptional crime of Genocide was committed against the Tutsi in Rwanda in 1994 and later on in South Sudan. During this Genocide, more than 800,000 people were killed in less than 100 days, causing many others to be displaced. The eastern part of the DRC did not escape this history of conflict and insecurity because, beginning in 1996, violent conflicts involving internal and external armed groups led to the death of more than 6,000,000 persons and forced many more to be displaced[22].

The conflicting situation in South Sudan has a different story of being repetitive and implying civil war and Genocide. Typically, the first conflict peaked in the 1960s and ended in 1972, but the second one, which began in 1983, lasted for twenty-two years[23]. The African Union and the UN have documented part of the violence in South Sudan, labeled it as ethnic cleansing, and have been reluctant to declare it a Genocide. In other words, the international community did not escalate its rhetoric to describe the violence in South Sudan as Genocide[24].

The role of natural resources in intra-state conflicts

DRC is a leading example of resource conflict; it is a history-long, complex, conflicting situation since the Belgian colonization of the region by King Leopold II in the 1880s. Since then, King Leopold II started a systematic exploitation of natural wealth. The subsequent Congolese leaderships before and after independence focused on appropriating these natural resources for their families and closest friends. They used military forces to silence the citizens and other opposition groups that could object to such leadership styles[25]. The Congolese natural resources attracted the interests of local people, including leaders, citizens, opposition groups, rebel movements, and most importantly, other countries, companies, and individuals at regional and international levels. I was curious to read that government dependence on natural resources for revenue likewise increases the risk of war and thwarts peacebuilding[26].

The DRC case is one of the leading examples where opposition groups and external supporters of the rebellions have played a critical role in intensifying the crisis. Surprisingly, the UN’s failure to handle the Congolese case through its peacekeeping forces and negotiations is a regrettable memory in global governance. Not only had the UN failed to protect the civilians from atrocities of civil wars in DRC, but it had also failed to facilitate peaceful negotiations between DRC and Zimbabweans who were fighting in DRC in the 2000s to protect their mining and timber concessions acquired by high government officials and their associates, as well as other regional actors who contributed to the escalation of the crisis[27].

Many opposition groups, including Genocide perpetrators in Ex-Forces Armées Rwandaises (Ex-FAR) who formed different groups such as Forces Démocratiques de Libération du Rwanda (FDLR), have so long worsened the Congolese security issues. By the time of these writings, M23 is the primary threat in Eastern DRC[28]. Therefore, the EAC member states should support any programs to promote peace between its member states to maintain bloc unity. Though member states of the bloc agreed to deploy a regional security force led by Kenya to the Eastern DRC, their productivity is still questionable. Above all, I realize that after two years of DRC’s accession to the EAC, there has not been any significant change in cooperation between DRC and other EAC member states; the tension between DRC and Rwanda increased from allegations of Rwandan support to M23[29].

The Congolese example indicates how controlling natural resources increased the risk of civil war. Regrettably, countries in Sub-Saharan Africa failed to exploit these natural resources to boost their economic development effectively. Therefore, poverty remained their major characteristic because agricultural activities account for more than 90 percent, and more than 40 percent live on less than a US dollar daily[30]. Unquestionably, poverty plagues Sub-Saharan Africa and forms a critical root cause of many of Africa’s problems[31]. Additionally, corrupt regimes in this region abuse foreign aid by using it for favoritism and to secure political power. For foreign aid to be effective, leaders should adopt appropriate measures to ensure the use of funds as intended. Additionally, aid money is often diverted and used to acquire arms and ammunition[32].

When government is a perpetrator: the genocide committed against the Tutsi in Rwanda

The Rwanda case about the Genocide committed against Tutsi in 1994 presents a worse scenario when the government is the perpetrator of the crime against its citizens. Since the Rwandese Patriotic Front (RPF) invasion in 1990 toward the signing of the Arusha peace agreement in 1993, the organized violence against unarmed civilians in this phase constituted a kind of early warning to the effect that worse might be in store[33].

The signing of the Arusha Accords in 1993 was symbolic because an extremist plan was to assassinate politicians at the scheduled ceremony for swearing in the transitional government. In the process, they would provoke an encounter with Belgian UNAMIR soldiers, expecting that by killing some, the entire UN contingent would leave Rwanda[34]. From this description, I can infer that the former Rwandan government still insisted on its decades-long plan of executing the Genocide.

Genocide perpetrators in exile

During the Rwandan liberation war by RPF troops and after seizing power, members of the old regime led a massive flow of civilian refugees across the border to Tanzania and the DRC, formerly Zaire. These refugees included government soldiers, militia members, local officials, and former national leaders, while the army, the militia, and the civilian refugees were mixed while establishing the militarized refugee communities. The members of the defeated regime who were responsible for the Genocide used these refugee camps for their re-organization and consolidation of their power, with attempts to renew the conflict and attack Rwanda[35].

From that description above, I understand they should not have obtained international refugee protection as people who committed Genocide or other crimes against humanity. The situation worsened when Zairian authorities helped ex-FAR units and staff to establish themselves in different sites along the border in the North and South Kivu areas[36]. These actions by the government of Zaire violated several international legal instruments such as the UN arms embargo on Rwanda[37], the OAU Convention that proscribes armed encampments of refugee-soldiers close to the border, and international law prohibiting armed incursions across the border[38], as well as the legal and moral principles to punish perpetrators of Genocide. Unquestionably, Zaire’s help enabled the defeated forces to regroup, retrain and rearm freely, and continue to be a security threat to Rwanda and the region.

Conversion of local conflict into terrorism: the Somali case

Somalia is a particular example where local conflicts were converted into terrorism, finally affecting neighboring countries such as Kenya, Uganda, and Sudan. This country has been a victim of social, economic, political, and security problems for so long. Insecurity and terrorism are significant problems in the entire East African region[39]. Somalia has been facing and is still facing various social, economic, and political issues. Somalia has been a victim of a drought threatening to cause famine in different areas for so long. Many Somali people have been victims of acute food insecurity and need humanitarian assistance. Additionally, the lack of funds to address the problems of drought, climate change, malnutrition, and famine is a critical concern[40].

Worse, insecurity resulting from Al-Shabab terrorism cannot allow the government to focus on other socio-economic aspects. Al-Shabab has remained a severe threat to the government and its institutions[41].

Internationalization of local conflicts: the Democratic Republic of the Congo

As I introduced earlier, conflicts in Sub-Saharan Africa seem intra-state initially, but they have often extended to threaten the entire region[42]. The complex and history-long conflicts in DRC exemplify the internationalization of local conflicts and wars in this region. In the Congolese crises, different actors and spoilers have contributed to the tension and internationalization of local wars to the extent that they have been qualified as Africa’s first World War[43]. These actors, interveners, and spoilers have different interests, and their involvement in the Congolese local crisis has complicated the peacekeeping mission to the extent that the AU itself, SADC, and the UN failed to protect tens of thousands of people who died, suffered from rape, and other major human rights abuses during these crises[44].

The strife for legitimization and self-determination of opposition groups

Many cases are worth examining because no single country in Sub-Saharan Africa has been free from the struggle with opposition groups. To understand how self-determination and striving for constitutional rights have successfully led to overthrowing authoritarian leadership and installing a government of unity and reconciliation, I will briefly discuss the Rwandese Patriotic Front case. It emanated from the issue of Tutsi, who were the principal victims of political violence and ethnic discrimination and marginalization in Rwanda in the decolonization period from 1959 to 1963; they fled to the surrounding countries, with large numbers settling in southern Uganda[45].

In this case, the refugee issues became a source of renewed violence, given the failure of the Rwandese government to permit return and the unwillingness of Uganda to accord full rights of settlement[46]. I understand that war was inevitable in this case since the Rwandan refugees had no other option than using military forces for their self-determination after refusing to return to their home country, being unwilling to accord rights of settlement, and failing regional and international regulations to handle the refugees’ problems. Surprisingly, African legal instruments and other international law, such as the OAU and the United Nations High Commissioner for Refugees, had appealed to African states to prevent refugee problems from generating renewed strife by following accepted principles of state responsibility towards refugees[47]. These regulations required that the country of origin must allow them full and free right of return; failing this, receiving countries should facilitate settlement and integration[48].

Unfortunately, neither Uganda nor Rwanda honored these legal requirements because Uganda expelled the Rwandan refugees in South-Western Uganda in 1982 and 1983 while the Rwandese government evoked the issue of overpopulation, consistently and unequivocally denied the refugees the right to return, which amounted to an invasion by the RPF. Consequently, the period from the October 1990 invasion by RPF until an interlinked process of civil war, civil violence, and preventive diplomacy characterized the signing of the Arusha Peace Agreement in August 1993[49].

The RPF demand complicated the Rwandese government’s decision-making; it was not simply to return but to change the political regime in the homeland. However, I agree with Eriksson that if the Rwandan regime had formally recognized the right of return, this might have given symbolic satisfaction to RPF, even in the absence of political reforms[50]. One important note that I must emphasize about the RPF invasion was a transformative impact on Rwandese politics by giving significant momentum to a democratization process; this continued after the RPF victory and the establishment of the new government of unity and reconciliation.

The failure of global responsibility to protect and use of force

The UN’s global responsibility to protect resides in the deployment of peace operations to help maintain cease-fire agreements, stabilize conflict situations, create an environment conducive to peaceful settlement, and help implement peace agreements. More importantly, they aim to protect the civilian populations at risk in humanitarian crises and assist in laying the foundations for durable peace[51]. Regrettably, the UN has proven reluctance and slowness in deploying its forces to save the civilian populations from these chaotic situations, constituting a critical failure of global responsibility to protect civilians from these risks.

The UN’s failure as a centrepiece of global governance in the Rwandan genocide case is proven by the UN’s reluctance and slowness to take any action against the Genocide that was happening in Rwanda since April 6, 1994, even to recognize these killings as a Genocide despite many reports from Non-Governmental Organizations, and pressure from different African officials to the UN Secretary-General. During that catastrophic incident, African members of the UN had called for forceful action during the discussion of UNAMIR’s fate after April 6, 1994, and maintained this position as the months went by and the death toll mounted. Surprisingly and unfortunately, their demands were buttressed by growing information being fed to the Secretariat by UNAMIR and DHA about the nature and magnitude of the massacres until April 29, 1994, when the UN Secretary-General vainly called for the Security Council to take forceful action for Rwanda[52].

Critiques against global and regional security mechanisms

The existing global and regional security organizations have proven ineffective in addressing the issues of enduring local conflicts in Sub-Saharan Africa and ensuring peace and security. The causes of this ineffectiveness include the unresponsiveness of the Security Council as a global security organization and the failure of African regional security organizations such as the East African Community, the East African Standby Forces, and the Intergovernmental Authority on Development[53]. These regional security organizations are subject to many critiques due to organizational, financial, and technical challenges they encounter. For example, the first deployment of the East African Standby Forces in Burundi in response to the political crisis caused by the President’s third term in 2015 was eventually rejected at the AU level. Moreover, it lacks strategic airlift capability and capacity to provision troops, funding issues, and adequate communications equipment that could enable command and control[54].

I must recall that, in the Somali case, many security standby forces failed to restore security in Somalia. These include the African Union itself, the African Standby Force, the Intergovernmental Authority on Development, and the Eastern African Standby Force Secretariat[55]. According to UN norms, states that border a country in conflict are ineligible to deploy troops into that country[56]. Therefore, Sudan and Uganda were identified as the countries that would deploy troops under the IGAD Peace Mission in Somalia to restore peace and security in Somalia. The other IGAD countries were to assist in providing logistics, equipment, emergency assistance, and training for the Somalia Army and Police[57]. Surprisingly, all these arrangements have not made any positive change to Somalia’s security system.

I must also emphasize that EASF relies on funds from both member and non-member states. Member states fund the headquarters. Exercises, educational programs, and real-life deployments are supported through friends of EASF. Therefore, I understand that this long funding process is a severe impediment to the functioning of a standby security force[58]. On another side, IGAD missions depend on military capacities from AU nations that are not members of IGAD. Considering these discussions and challenges above, I will not be cynical to conclude that peace and security have deteriorated since the establishment of the EAC. More specifically, this region does not have a collective defense system to help reinforce security measures.

The need for addressing the root causes of conflict

The sections above discussed the particularity and complexity of local conflicts in Sub-Saharan Africa. These conflicts require particular approaches and solutions, especially home-grown solutions. Mainly, they need a specific involvement of local stakeholders, unofficial facilitators in conflict resolution, using traditional conflict resolution methods, and immediate intervention as long as early warnings signal the severity of the conflict.

One among many possibilities to address the issues of conflicts and profound insecurity that continue to ravage the region is to deal with their root causes because they escalate into complex forms. In other words, there is no single formula to deal with a particular conflict because an apparent conflict has many other connected ones and is story-long for each case. Though I cannot assume to dress an exhaustive list of causes of these conflicts, I must emphasize that the main reasons for recurring conflicts in Sub-Saharan African countries include economic stagnation and poverty aggravation, mistrust and suspicion between governments, massive violations of human rights, and other policies of exclusion and marginalization of some groups including ethnic or religious groups.

Additionally, the list of possible causes includes the use of violence for conquering and conserving power, impunity of crimes of Genocide, crimes against humanity, war crimes, and illicit trafficking of small arms and light weapons by opposition and terrorist groups, especially in the Horn of Africa, a proliferation of armed groups such as the DRC case, organized crime and illegal exploitation of natural resources[59]. Therefore, effectively resolving local conflicts in Sub-Saharan Africa should address these causes and other factors connected to them.

The role of informal diplomatic approaches in complex internal conflicts

Resolving complex local conflicts requires particular settings that enable a clear and deep understanding of the causes of the wars, active involvement of the concerned parties, and solutions that meet their interests. Uncontestably, this process requires an unmeasurable amount of time and patience for the mediators, facilitators, and other concerned actors. Therefore, only an informal mediation can achieve this goal because, in such conflicts, emotions have an extremely considerable value; causes are complex and attached to the long history of the matter and the parties.

Strengthening preventive diplomacy and mediation

Preventive diplomacy can best suit local conflicts because it can prevent disputes from arising between parties or prevent existing disputes from escalating into conflicts or limit the spread of conflicts when they occur[60]. Limiting the spread of conflicts when they occur includes timely intervention by the Security Council as long as there is evidence of an existing conflict. I believe that as the UN delays preventive measures, the cost of wars increases, especially the loss of lives. Therefore, the prices of repairing the conflict’s consequences are higher than preventive diplomacy.

In doing so, there is a need to maximize the use of early warning systems and, if necessary, persuade the concerned parties to accept a peaceful conflict resolution process. In this process, the role of UN agencies, NGOs, and expert individuals operating in the conflicting area should share accurate reports that help the decision-makers to have a complete account of the conflict[61]. In intra-state battles, the UN should use its forces and power to induce the concerned parties into talks because they are the masters of the causes of their conflicts and solutions.

Active involvement of non-governmental organizations

Non-governmental organizations go beyond the works of official diplomats, mediators, and intermediaries in resolving complex local conflicts. In that process, they create a better historical account of the issues, provide educational opportunities for conflict resolution, and serve as information channels[62]. Therefore, I understand it is best to deal with many peacemaking activities requiring time, effort, and patience.

More particularly, NGOs operate independently from power politics, which increases their trust in the parties in conflict. In short, I can infer that involving and empowering NGOs as intermediaries and mediators in international conflict situations is essential[63].

The lesson from the informal mediation approach: the Mozambican case

The Mozambican case is one of the leading examples of long-history violent conflict that marked the successful work of informal actors and NGOs, particularly in mediation. The mediation efforts involved the Government of the Vatican, the governments of Italy, Kenya, the Sant’Egidio Community, the Mozambican churches, France, Malawi, Portugal, Zimbabwe, the United Nations, the United Kingdom, and a non-negligible role of the USA. One particular aspect is that each party was represented in the group, with observer status, and later became the mediation group, the collective mediation action[64]. Therefore, this collaborative mediation action satisfied the conflicting parties because the government and RENAMO wanted a mediator rather than bilateral negotiations[65].

Moreover, this case marks the role of the religious field, Roman and Anglican, and NGOs. In that sense, the Christian Council of Mozambique established the Commission for Peace and Reconciliation to explore possible options for dialogue and facilitate communication between the parties. These organizations acted behind the scene throughout the mediation process and were involved in negotiating the conditions of an amnesty with RENAMO leaders[66].

Strengthening local solutions and policy actions

As I discussed in the sections above, Sub-Saharan Africa continues to be a world region characterized by incessant local conflicts. These include mainly ethnic, revolutionary, inter-communal, and political differences wars[67]. On a positive note, some countries have made significant steps in ending civil wars, such as the wars in Mozambique, Ethiopia, Liberia, Sierra Leone, Angola, and Rwanda, while many others are still in chaotic warring situations. There is an important lesson to learn from the Rwandan approach of prosecuting the Genocide perpetrators and the consequences of Genocide by using traditional methods.

The role of Gacaca courts as an example of home-grown solutions

Diplomatic efforts and other conflict resolution attempts failed in many cases of local conflicts in Sub-Saharan Africa because of the complexity of these conflicts. These include negotiation, mediation, or coercive diplomacy. As a solution, involving local people and using traditional African experiences can be resourceful for conflict resolutions to achieve the best solutions[68]. For example, the Rwandan traditional Gacaca Courts played an unprecedented role in trying the suspects of Genocide committed against Tutsi in 1994, eradicating the culture of impunity and contributing to unity and reconciliation[69].

The need for African sustainable economic development

The discussions above stress the importance of addressing the internal root causes of African conflicts beyond the traditional responses, which only tackled their symptoms[70]. That way, Sub-Saharan Africa should embark on a significant journey of reinforcing investment in education in science, technology and innovation, health, gender equality, and youth empowerment. This education will undoubtedly increase employment opportunities and the continent’s sustainable economic development. In doing so, domestic resources need to be mobilized by emphasizing the efforts to fight corruption and embezzlement of public funds[71]. Thus, there is a need to empower local legal and administrative institutions to implement these developmental policy actions[72].

Improvement of crisis intervention policy actions by international organizations

The Rwandan Genocide had proved a lack of contingency plans or efforts to strengthen the mission’s preparedness for worst-case scenarios despite clear evidence of mounting tension. The problem was partly due to limited institutional capacity in the face of a rapid increase in peacekeeping operations worldwide[73]. I understand that in matters of threats to peace and security and severe human rights violations, including the crime of Genocide, the neutrality principle should not necessarily apply to the UN or other designated international organizations. In other words, Chapter VII of the UN Charter should be enforced as fast as necessary[74]. In that same logic, the UN should not be neutral towards Genocide or parties threatening civilians whom the UN has placed under its protection[75].

However, the case of the Genocide committed against the Tutsi in Rwanda demonstrates that it requires the UN to have the capacity for information collection and analysis to take action accordingly. Nevertheless, member states are reluctant for reasons of national security to let the UN develop such an intelligence function. For example, Zaire, France, and Uganda had access to the Rwandese regime[76] but no interest in collecting, let alone sharing, any information that could be used against the Rwandese government at that time.

The need for empowerment of regional security standby forces

As I emphasized above, the existing regional security organizations have proven ineffective in ensuring peace and security due to numerous organizational, financial, and technical challenges. As mentioned above, the first deployment of East African Standby Forces with full operational capability in Burundi in response to the political crisis caused by the President’s third term in 2015 was eventually rejected at the AU level. As a solution, I observe that this organization should have the decision-making power, financial capacity, and autonomous structure to be effective. Nevertheless, contributing countries where these forces are drawn decide whether troops can be deployed[77].

Additionally, several factors contribute to the spread of conflicts within the region. These include weak state institutional capacity in some states that constrain frontier security cooperation, the presence of armed and region-destabilizing hostile forces, mutual suspicions, and low levels of trust among states, while some of them support local conflicts in neighboring countries[78]. These factors require strengthening the standby force to ensure regional peace and security. Moreover, I am convinced that creating collective defense forces would be a starting point, but having a trained national army and police force and ensuring financial capabilities is a requirement.

Developing appropriate alternative policies to comprehensive sanctions

Beforehand, I must emphasize that using comprehensive sanctions in conflict is a double punishment for vulnerable citizens. Undoubtedly, comprehensive sanctions are ineffective, counter-productive, harmful to the global economic aspects, and morally questionable yet challenging to lift once imposed. The situation worsens in intra-state conflicts and in failed states where generalized sanctions are ineffective against leaders of armed factions; there are gaps in documentation of imports and exports or borders[79].

The Iraqi case is a leading example signifying how comprehensive sanctions benefit a few individuals, including bad leaders, to the detriment of local citizens. As the regime became more repressive, ordinary Iraqis suffered the most from the sanctions, which reduced things like food imports and medical supplies, leading to widespread malnutrition and starvation, and impoverished them. Between 670,000 and 880,000 children under five are estimated to have died during 1990 to 1995 due to the impoverished conditions caused by the sanctions[80]. From this description, I can deduce that sanctions adversely cause poverty, especially among vulnerable people. This impact increases with the severity of sanctions and is more extensive for multilateral sanctions than for unilateral sanctions imposed only by one superpower and is long-lasting as the poverty gap increases[81].

The UN imposed sanctions on Iraq after President Saddam Hussein invaded Kuwait in 1990, but the Iraqi people did not rise to rebel against the dictator. Instead, his political violence ended after the United States militarily invaded his country in 2003[82]. According to this example, economic sanctions benefit particular political leaders, companies, groups, and individuals who violate human rights to the detriment of vulnerable civilians. The oil sales authorized under the 1995 Oil-for-Food Program to pay for food and medical supplies were an exception to the sanctions imposed on Iraq[83].

Regrettably, these sanctions resulted in malnutrition, contaminated water supplies, increased infectious disease, and higher infant and child mortality rates, producing a severe humanitarian crisis[84]. It is regrettable that Saddam Hussein, some private companies, and individuals, including some UN personnel concerned with the program, made that exception their opportunity to exploit it, earning good wealth through kickbacks and surcharges and illegal oil smuggling[85]. The North Korean case is another culminant example. North Korea has also been heavily sanctioned, but this policy instrument has been ineffective, counter-productive, and even harmful to human life, causing political and economic insecurity among the civilian population. Despite extensive sanctions, North Korea continued to test nuclear missiles[86]. Human rights violations became terrible until the UN Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea recommended that the North Korean case be referred to the International Criminal Court[87].

SUMMARY *

The article’s organising claim is that the instruments deployed against conflict in the region have addressed its manifestations while leaving its generative conditions in place. Colonial borders and colonial administrative practice produced states in which ethnicity became the operative political category and in which security institutions were developed at the expense of everything else; resource wealth gave every faction a reason to fight and a means of financing it; and the international mechanisms designed to respond, from Security Council authorisation to regional standby forces, have consistently arrived late, arrived without capacity, or not arrived. Against this the author sets what he takes to have worked: the collective and largely non governmental mediation that ended the Mozambican war, and the domestically designed Gacaca process in Rwanda. The common feature he identifies in both is that the solution was owned by those who had to live with it.

CONCLUSION

In this paper, I have explored the particular linkage between the security issues and conflicts in the Sub-Saharan Africa region with the countries’ colonial legacy that prolonged and amplified other social divisions. The colonials’ failure to establish long-lasting legal, administrative, and institutional systems and to empower local leaders to sustain them have contributed to incessant wars in this region. Inevitably, the marginalized groups strived for their rights and self-determination, thus forming opposition and rebel groups.

Unsurprisingly, military forces have been the last option during these conflicts and wars, but the use of terrorism has been the worst version. Additionally, Africa in general and Sub-Saharan Africa in particular is rich in natural resources; these have been other significant causes of conflicts since both the governments and oppositions rely on them for their financial purposes and power. Though the grounds of the wars in this region have the same traits, I emphasized in this paper the need for particular attention to each concerned country’s specific nature and history because there is no single formula to resolve these dynamic and complex conflicts. Therefore, any successful resolution of these conflicts must address their root causes, and involve collective efforts and inter-state collaboration through different regional integrations, because local disputes have finally become multinational and international.

More specifically, the policy and decision-makers at local, regional, and global levels should strengthen democratic institutions to emphasize development and sustainable democracy, establish effective early warning security mechanisms and ensure timely intervention when emergencies arise. Additionally, they should support domestic programs and activities that promote peace, security, and respect for human rights. These include academic programs, community services, training, and seminars. In other words, there should be efforts to seek African solutions for African problems. That way, the policy and decision-makers should also strengthen inclusive and constructive internal dialogues because an internal exchange facilitates the development of an exit strategy and empowers local citizens in effective conflict resolution.

The major powers and the UN Security Council should encourage and support peaceful ways of resolving conflicts in Sub-Saharan Africa and leverage them whenever possible instead of rushing for economic sanctions that harm vulnerable citizens. In other words, the UN Security Council should invest in peace efforts because supporting these efforts is more cost-effective than paying the price for instability and conflict.

Finally, the international community should increase its capacity for rapid response in emergencies because its delays and reluctance cause colossal human and material losses, as exemplified by different cases in this paper. To do so, it should soften its procedures to enhance rapid response, maximize the use of early warning systems, credit the field reports, and promote active involvement of NGOs and expert individuals operating in the conflicting areas because their words help the decision-makers to have a complete account of the conflict.

POTENTIAL SOLUTION *

The two success cases the article identifies are the most useful material in it, and what they have in common is worth stating precisely, because it is not what is usually drawn from them.

Sant’Egidio in Mozambique had no leverage whatever. It could offer neither money nor security guarantees nor political recognition, and this is generally treated as a disqualifying weakness in a mediator. What it had instead was a relationship with both parties predating the process, no interest in the outcome, unlimited patience, and, decisively, the ability to draw in states with leverage when leverage was required. That configuration, a trusted convener without interests operating alongside powerful actors with them, is the transferable finding, and it is more valuable than the observation that non governmental actors can mediate.

Gacaca offers a harder lesson and deserves to be presented with its documented difficulties, since a case for local solutions is strengthened rather than weakened by honesty about them. It processed roughly a million cases in a period during which formal courts managed a few thousand, and no conventional system could have done that. The evaluations, including the one the author cites, also record insufficient defence rights, intimidation of witnesses, false accusations arising from property disputes, and the exclusion from its jurisdiction of crimes alleged against the victorious side. The transferable principle is that community based mechanisms achieve scale and participation that formal systems cannot, and that they require safeguards which formal systems supply automatically. Presented that way, the model travels; presented as an unqualified success, it invites the objection that ends the discussion.

On the colonial explanation, one refinement strengthens the argument. Arbitrary borders are common to the entire continent, yet outcomes have varied enormously, and the more precise finding in the literature concerns the character of colonial administration rather than the shape of the map: where indirect rule hardened fluid identities into fixed administrative categories and allocated access through them, the political salience of ethnicity survived independence; where it did not, ethnic diversity by itself has proved a poor predictor of conflict. That version explains the variation the map version cannot, and it identifies what post independence policy can actually change.

Two further points follow. The article’s proposal for empowered standby forces addresses a real deficiency, and the deficiency is financial rather than doctrinal: African Union authorised operations have depended on external funding decided elsewhere, which is why the question of assessed United Nations contributions to African led peace support operations has been the central institutional debate in this field for a decade. And the article notes that early warning existed before Rwanda and was disregarded, which points to the conclusion that the problem was never information. Every serious review has found that the warnings were received and that political will was absent. Improving early warning without addressing why warnings are ignored addresses the wrong half of the failure.

Finally, the article’s insistence on African solutions to African problems is right and carries an obligation for those outside the region. If ownership is genuine, it includes the authority to decline external prescriptions, to sequence reform differently than donors would prefer, and to reach settlements that outsiders find unsatisfactory. Ownership that extends only to implementation is not ownership, and the record the author describes suggests it has more often been the latter.

* Added by the WMO Editorial Team

REFERENCES

[Bibliography and footnotes 1 to 87 as in the original manuscript]

Supplementary references added by the WMO Editorial Team

Constitutive Act of the African Union, 2000, and the Protocol Relating to the Establishment of the Peace and Security Council, 2002.

Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, United Nations, New York, 15 December 1999.

United Nations Security Council Resolution 2719 (2023) on the financing of African Union led peace support operations.

Mamdani, M. (1996). Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. Princeton University Press, Princeton.

Bartoli, A. (2001). Mediating Peace in Mozambique: The Role of the Community of Sant’Egidio. In Herding Cats: Multiparty Mediation in a Complex World. United States Institute of Peace Press, Washington, D.C.

Clark, P. (2010). The Gacaca Courts, Post Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers. Cambridge University Press, Cambridge.

Human Rights Watch (2011). Justice Compromised: The Legacy of Rwanda’s Community Based Gacaca Courts, New York.

Autesserre, S. (2010). The Trouble with the Congo: Local Violence and the Failure of International Peacebuilding. Cambridge University Press, Cambridge.

The Problematic Application of Comprehensive Sanctions on the Rights of Vulnerable Citizens

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

EDITORIAL NOTE *

The author of this article works at the United Nations High Commissioner for Refugees; the views expressed here are his own and do not reflect the official position, past, present or future, of the United Nations or of UNHCR.

ABSTRACT

Comprehensive sanctions, including arms embargoes, diplomatic isolation, and trade restrictions, are a central coercive policy designed to force member states that violate international law into compliance. The purpose of sanctions is to constrain or limit the sanctioned entity’s ability to operate or sustain activities of concern and to force a shift in its behavior to comply with international law. The strategic objectives of imposing sanctions consist of preventing or countering the proliferation of weapons of mass destruction, constraining or countering terrorism, deterring human rights abuses and corruption, and promoting accountable and democratic government.

However, comprehensive economic sanctions do not have a good track record, especially in the context of human rights violations. Not only have they often failed to accomplish their intended policy objectives, but they have also resulted in substantial human costs. Furthermore, the reality is that comprehensive sanctions cause national economic pain, such as shortages, higher prices, and deeper poverty for the poor and middle class. In that respect, I argue that though sanctions are applied to address human rights abuse, they are ineffective because their burdens fall disproportionately on vulnerable civilians, while political leaders, their families, criminal groups, and other private individuals often benefit.

In this reflective paper, I explored the nature and legal consideration of sanctions for human rights protection; I conducted a comparative discussion of the pros and cons of comprehensive and targeted sanctions. In the same reasoning trend, I recommended a few mechanisms to anticipate and address these challenges. These recommendations will play a vital role in helping the decision-makers in the senders of sanctions to balance the political gain of applying sanctions and the socio-economic impact they have on vulnerable citizens of the targeted country.

KEYWORDS *

Economic sanctions, targeted sanctions, smart sanctions, human rights, United Nations Security Council, Chapter VII, Iraq, North Korea, Iran, asset freezes, humanitarian impact, sanctions evasion

INTRODUCTION

Inter-state and intra-state conflicts with massive human rights violations have characterized the post-Cold War period. The increasing situations of human rights violations are paralleled by the growing frequency of the international community’s resorts to economic sanctions, whose consequences are unavoidable. On another side, these sanctions are significant in pressuring the concerned political regime or political leaders to end human rights violations. In this section, I will conduct a brief reflection on their nature and legal consideration; I will emphasize the requirements for the effectiveness of sanctions. Equally, I will evoke their adverse consequences on the concerned country in general and vulnerable citizens in particular. I will discuss these consequences in detail in the next section.

MAIN CORPUS

Legal consideration and motives of application of sanctions

Sanctions refer to coercive measures taken in response to a violation of international law by an organ legally empowered to act on behalf of the society or community governed by the legal system[1]. In that sense, sanctions are among the most essential and powerful tools to maintain or restore international peace and security[2]. They can be comprehensive, meaning they cover an entire country or designated groups or categories of persons and entities. They can also be non-comprehensive or targeted, covering only specific industries, industry sectors, activities, practices, or individuals.

The United Nations as the centrepiece for authorizing sanctions

The UN’s sanctions fall under the authority of Chapter VII of the UN Charter; they consist of non-violent tools used to achieve change in nations’ behaviors. In other words, without the strict enforcement of sanctions, the only means left to the international community to alter the behavior of proliferators, such as North Korea, is using force under Article 42 of the UN Charter[3]. However, I realized that there is no standard process for enforcing sanctions. These loopholes are significant causes of evasions, as in the case of North Korean evasions of sanctions that the international community imposed on it[4]. The legal framework and regulations required for their successful enforcement are vital as a solution.

I cannot entirely agree with Gordon when noting that in response to the disastrous impact that trade sanctions had on the civilian population in Iraq in the early 1990s, how sanctions were applied was fundamentally reexamined by evolving into more selective, targeted, more effective, and less inhumane, in both UN and non-UN measures[5]. Moreover, before implementing the sanctions provided for in Chapter VII, the Security Council must have exhausted the means of peaceful settlement of disputes under Chapter VI. In that process, sanctions should be resorted to only with the utmost caution when other soft options provided by the Charter are inadequate[6]. It pushes me to question the respect of this requirement when a superpower unilaterally imposes sanctions.

Theoretical requirements for implementation of sanctions

Theoretically, once Chapter VII is activated, the Security Council benefits from a range of actions to punish a State that has either threatened or has already violated the peace. These are of gradual application, with military intervention being the ultimate sanction. In other words, specific graduation in implementing sanctions ranges from lighter measures to more restrictive ones that may lead to a total embargo. Therefore, implementing sanctions is accompanied by special efforts to make sanctions more effective[7]. However, I can observe that this requirement is a simple theory since it does not consider the impact of these sanctions on human rights.

The aspect of human rights violation in the application of economic sanctions

The Human Rights Council and regional organizations have regularly and consistently adopted resolutions rejecting the use of economic sanctions for decades[8]. I understand that these rejections are based on the financial sanctions regimes that do not ensure minimal regard vis-à-vis basic human rights needs. I am concerned that these measures do not include effective mechanisms to provide remedies and redress for victims of human rights violations arising from the unlawful imposition of sanctions.

Extended effects of comprehensive sanctions to targeted sanctions

Targeted sanctions are implemented mainly through selective embargo measures. The selective embargo allows the Security Council to adjust the sanction to suit the situation. UN practice reveals many examples of targeted sanctions, which concern the ban on arms and related materials[9], and financial sanctions, including freezing foreign assets, restrictions on access to international financial markets, and stopping any international transfer of payment to a State or another State or a targeted entity. They also include restrictions on travel and commercial flights and trade in natural resources such as oil and petrol products, diamonds, round logs, and timber products[10]. However, apart from individual travel bans, their results affect the country’s economy.

The issue of interdependence in the application of comprehensive sanctions

The USA, European Union (EU), and Japan thought that the most effective sanction against Russia was to suspend natural gas imports from the country, which could cause an economic burden by depriving it of foreign currency income. At the same time, these sanctions affected the economic and social activities of the European countries that depended on natural gas from Russia[11]. Changes in their economic and social activities, the risk of electricity shortages, and other problems caused by natural gas shortages became evident[12].

I can infer that countries are reluctant to implement sanctions to avoid the risk of hurting themselves and avoid the impact on their economic activities and national policies. In other words, I can conclude that it is only for small economies, those with asymmetrical interdependence, that sanctions do not cause significant problems. However, implementing sanctions targeting economies of the size of Russia is inevitably tricky.

Effects of comprehensive sanctions on the country’s economy and vulnerable people’s rights

I will not attempt to explore all cases that the UN and the UN Security Council addressed utilizing sanctions in this section; instead, I will base on a few instances to criticize the ineffectiveness of these sanctions and will especially emphasize their effects on vulnerable citizens of the concerned country.

As I introduced earlier, comprehensive sanctions are ineffective, counter-productive, harmful to the economic interests of those imposing sanctions, damaging to relations with allies, and morally questionable yet challenging to lift once imposed. The situation worsens in intra-state conflicts and in failed states where generalized sanctions are ineffective against leaders of armed factions; there are gaps in documentation of imports and exports or borders[13].

Socio-economic consequences of comprehensive sanctions

As the regime became more repressive, ordinary Iraqis suffered the most from the sanctions, which reduced things like food imports and medical supplies, leading to widespread malnutrition and starvation, and impoverished them. Between 670,000 and 880,000 children under five are estimated to have died during 1990 to 1995 due to the impoverished conditions caused by the sanctions[14]. From this description, I can deduce that sanctions adversely cause poverty, especially among vulnerable people. This impact increases with the severity of sanctions and is more extensive for multilateral sanctions than for unilateral sanctions imposed only by one superpower and is long-lasting as the poverty gap increases[15].

Comprehensive sanctions are inefficient in changing a country’s regime and policies

Without a doubt, sanctions are more likely to fail when they target autocratic regimes that insulate themselves from the international community, precisely countries where human rights violations are rampant[16]. I can infer that they carry little direct weight when it comes to autocratic leaders’ decisions to repress their populations. It had been the case for failed sanctions to the National Union for the Total Independence of Angola by the United Nations Security Council.

In response to a bitter civil war between the government of Angola and the National Union for the Total Independence of Angola (UNITA), the UN Security Council used various measures, including peacekeepers, negotiations, and sanctions. Sanctions included arms embargo and oil sanctions on UNITA, financial sanctions, travel bans for senior UNITA officials, aviation ban for flights to UNITA territory, and diplomatic sanctions that closed UNITA offices in other countries[17]. Regrettably, the Security Council gave up trying to mediate between the Angolan government and UNITA and sought to isolate the rebels, restrict their resources for arms and fuel, and help the government gain the upper hand[18].

On the positive side, I was impressed that the Southern African Development Community (SADC) aided the Security Council in blocking the finances and sources of UNITA’s weapons and mercenaries by especially blocking exports of UNITA diamonds and monitoring air traffic in the region. In this case, governments, companies, and individuals were identified as violators of these sanctions in various ways[19].

Comprehensive sanctions do not resist authoritarian leadership

The Iraqi case and South African apartheid are other examples that signal the inefficiency of comprehensive sanctions, especially the failure of the UN’s sanctions. Typically, the effect of the sanctions imposed on South Africa’s apartheid regime from the 1960s was believed to have moved the country toward democracy in the mid-1990s, but the situation happened from a reversed angle. The Iraqi case is another leading example of the failure of the UN’s comprehensive sanctions. The UN imposed sanctions on Iraq after President Saddam Hussein invaded Kuwait in 1990, but the Iraqi people did not rise to rebel against the dictator. Instead, his political violence ended after the United States militarily invaded his country in 2003[20].

The North Korean case is another culminant example. North Korea has also been heavily sanctioned, but this policy instrument has been ineffective, counter-productive, and even harmful to human life, causing political and economic insecurity among the civilian population. Despite extensive sanctions, North Korea continued to test nuclear missiles[21]. Human rights violations became terrible because the UN Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea recommended that the North Korean case be referred to the International Criminal Court[22].

The sanctions period as a golden period for the North Korean nuclear program

As I emphasized above, the North Korean situation should be a wake-up call for decision-makers regarding comprehensive sanctions because they enabled North Korea to develop its nuclear program further instead of discouraging it[23]. Said otherwise, economic sanctions cannot be effective if policy-makers have a strong will and believe there are more benefits to continuing the policy than any financial burden that can be placed on them[24]. More specifically, in the case of North Korea’s nuclear development, Kim Jong-un, who had a dictatorial authority to make policy decisions, recognized that the development and possession of nuclear weapons was the most crucial issue for his country’s survival and had not stopped nuclear development despite these sanctions[25].

Although economic sanctions could hamper North Korea from acquiring necessary materials for nuclear development, it has been able to get these materials and continue its policy by developing on its own, smuggling, and other means of evading sanctions[26]. Additionally, although North Korea could not obtain the funds necessary for nuclear development, it could get them through cryptocurrency theft in cyberspace[27]. Without a doubt, economic sanctions will not be very effective if loopholes can be exploited by the concerned state, such as in the case of Korea.

Comprehensive sanctions benefit the violators of human rights: the Oil-for-Food case

Undoubtedly, economic sanctions benefit particular political leaders, companies, groups, and individuals who violate human rights to the detriment of vulnerable civilians. The oil sales authorized under the 1995 Oil-for-Food Programme to pay for food and medical supplies were an exception to the sanctions imposed on Iraq. Apart from restricting Iraq from acquiring or developing any nuclear weapons and placing all nuclear-usable material, such as power plants, under international control, the resolution also required Iraq to compensate victims for losses or damages, using money from the sale of oil[28].

Regrettably, these sanctions resulted in malnutrition, contaminated water supplies, increased infectious disease, and higher infant and child mortality rates, producing a severe humanitarian crisis[29]. It is regrettable that Saddam Hussein, some private companies, and individuals, including some UN personnel concerned with the program, made that exception their opportunity to exploit it, earning good wealth through kickbacks and surcharges and illegal oil smuggling[30].

Lack of adequate follow-up on implementation

I insisted earlier that sanctions are an alternative way of fighting wars, perpetuating conflicts but not defusing them; they should be an appropriate tool to protect the rights of defenseless categories of people. I cannot assume to explore all the factors hindering this goal’s realization in this section, but I will make an evocative discussion that can alert the policy-makers in the validation process.

Typically, effective implementation of sanctions requires an adequate follow-up and a great deal of specific knowledge about the country, people, and groups being targeted. In that sense, it requires identifying funds belonging to those who are targeted, such as government agencies, companies, and individuals, and blocking their access to those funds[31]. However, there are operational and political difficulties in achieving their objectives. Legal loopholes, lack of trained staff, and inadequate budgets in the UN secretariat and member governments are significant operational difficulties. It worsens when weak border control systems and corruption in many countries exacerbate these difficulties[32].

Politically, there is a lack of active involvement and ownership of intergovernmental organizations other than the UN, which puts the UN’s legitimacy at stake when sanctions are used. Additionally, the UN is an umbrella of the five permanent members of the Security Council. In other words, it legitimizes the actions of this P5. Additionally, sanctions are likely to boost popular support for sanctioned leaders[33].

In the Angolan government versus UNITA case I emphasized earlier, the sanctions imposed by the Security Council on UNITA had little impact on UNITA’s military capabilities from 1990 to 1999 because there had been almost no monitoring to ensure compliance. Though the conflict ended in 2002, its end was not a result of the sanctions but because of the death of UNITA’s leader[34].

The influence of targeted authoritarian leaders

The cases I highlighted in this paper prove that comprehensive sanctions can dramatically affect target government officials who operate within authoritarian countries that are not economically integrated into the global economy. Typically, leaders who commit human rights violations work within countries not profoundly integrated into the world economy[35]. Apart from comprehensive sanctions, even targeted sanction measures like travel bans or restrictions, asset freezing, arms embargoes, and trade sanctions may make life difficult for such leaders but do not necessarily inflict enough damage on them. Instead, repressive regimes under threat are likely to arm themselves with violent instruments that suppress challengers or violate human rights and reduce prospects for democratization[36].

Strategic diversion of the country’s international trade system

In a few smart countries, economic sanctions have hurt the economy without pushing the country to the brink of total economic collapse and without fatally hurting members of the ruling elite. Therefore, the leadership had managed to circumvent the sanctions by doing business with states and companies that either paid lip service to international law or refused to help enforce it. For example, North Korea has traded with countries in South and Southeast Asia, Africa, and Europe, and its trade has grown substantially since 2005[37].

Undoubtedly, there had been a strategic diversion of the sanctions between China and North Korea. Ironically, China had often supported the sanctions against North Korea through its positive votes at the UN Security Council but had hardly done anything to enforce them[38]. I can construe that the main reason is that China had been North Korea’s largest trading partner. Unilateral sanctions by Japan and South Korea show that North Korea’s exports to China increased significantly from 2001 to 2012, using various techniques of trade diversion.

The lack of binding force of United Nations resolutions

Many cases prove the sanctions’ inefficacy resulting from the UN’s resolutions’ lack of binding force and inconsistency[39]. The Iranian issue is among many other cases that signal how the UN has vainly used its sanctions, instead allowing the concerned state to reorganize its illegal acts better. The UN’s sanctions in the Iranian case targeted halting the Iranian nuclear program. I was surprised to read that since 2006, the Security Council has vainly imposed sanctions through four resolutions to prevent the further proliferation of nuclear weapons because these sanctions did not stop nor impede the Iranian nuclear program[40]. These sanctions called for states to prevent the transfer of any items, materials, goods, and technology that could contribute to the Iranian enrichment-related and reprocessing activities and ballistic missile programs. In that regard, they required states to block directly or indirectly the supply, sale, or transfer of such items from their territories by their nationals using their flag vessels or aircraft[41].

Resolution 1747 authorized inspections of the sea and air cargo to and from Iran, tightened monitoring of Iranian financial institutions, extended travel bans and asset freezes, and enlarged the list of target individuals and companies. The Security Council, based on the application of the sanctions against Iraq during the 1990s, created a monitoring committee, defined humanitarian exemptions and actions required for sanctions to be suspended or terminated[42]. Based on the results of these sanctions on the Iraqi and Iranian cases, I argue that the UN had failed to make its sanctions successfully work.

Globalization and the influence of major and middle powers

Globalization is a non-negligible factor that can impact the success or failure of sanctions because when sanctions lead to the closure of one market, targeted nations can shift their economic focus to other markets and trading partners to maintain a respectable trade volume[43]. I agree with Meissner and Mello that the big players like the US or the EU imposing sanctions are treated as an opportunity by other emerging yet significant economies like India, China, and South Korea[44]. The differences in foreign policy among countries have an instrumental role in the survival of sanctioned economies. China’s foreign policy of non-interference in the internal affairs of another state is a leading example. That policy has been essential for the rise of China as Myanmar’s dominant economic ally since sanctions were imposed in the 1980s[45].

In that sense, China has also continued to have sizable economic ties with heavily sanctioned North Korea, with bilateral trade increasing ten-fold between 2000 and 2015[46]. From this analysis, I observe that sanctions are effective only against regimes that want to trade with the sanctioning regimes. Lopez-Jacoiste insists that sanctions moderately worked in South Africa because of its close alliance with the US during the Cold War. But it is futile to sanction outsider regimes such as North Korea and Cuba, where publicity does not have considerable influence[47].

Difficulties in implementing sanctions against major powers

One typical example of difficulties implementing sanctions against major powers is when European Union members hesitated to enforce the economic sanctions against Russia after invading and annexing Crimea in 2014. The reason was that the EU was Russia’s chief trade partner; Russia was also the EU’s third largest commercial partner. On another side, economic sanctions imposed by the United States and the EU prompted Russia to move closer to China, which had refused to participate in these sanctions[48].

The current war between Russia and Ukraine is a critical point worth analyzing regarding the total failure of economic sanctions. Typically, before Russia invaded Ukraine in February 2022, the US and NATO countries denied deploying troops in Ukraine and chose to avoid engaging in direct warfare with Russia. However, they did declare that they would impose massive economic sanctions if Russia invaded, thereby seeking to deter Moscow. As it turned out, Russia did not fear the economic sanctions, invaded Ukraine, and continued fighting. In response, the US, the EU, and Japan have implemented broad economic sanctions against Russia, but this has not stopped Russia’s military aggression[49].

Considering the current war I discussed in the paragraphs above, I still criticize the purpose of economic sanctions for human rights protection. In that sense, I even wonder if economic sanctions should be the best option when using force is not possible; that means if they are a viable alternative to modern warfare. Unsurprisingly, while many countries in the international community condemned Russia, only about 40 states participated in sanctions against Russia, and those that did not join in sanctions might be involved in Russia’s evasion of sanctions[50]. This case of war between Russia and Ukraine pushes me to conclude that though comprehensive sanctions target the country, it can only happen for smaller states that usually struggle economically.

Personalization and individualization of sanctions

I have discussed the adverse consequences of comprehensive sanctions and their ineffectiveness. In doing so, I emphasized the aspect of human rights. Since the ideal goal of sanctions is human rights protection, I have proposed a few alternative measures in the details below that the decision-makers can adopt to make comprehensive sanctions more effective. I cannot claim to have produced an exhaustive list of actions, but it is a portion of food for thought and a wake-up call for the senders of sanctions.

In the sections above, I have emphasized the ineffectiveness of comprehensive sanctions by focusing on their harmful effects on the country’s economy and vulnerable categories of people, particularly women, children, aged, and disabled people. Shockingly, the authors of human rights violations are not directly affected by these sanctions. Therefore, targeted or individualized sanctions can play a role as they put direct pressure on key target actors and their support coalitions while causing minimal humanitarian and other adverse effects on civilians; that is, they affect specifically those responsible for objectionable actions[51].

I applaud the UN and European Union approach to individualizing sanctions in that same trend. These individualized sanctions are intended to disrupt or cut off sources of funds for terrorists, empowering countries to monitor financial transactions and interdict accounts of particular individuals and adopt measures to block funds transfer by the terrorists. On a positive move, these sanctions concerned 500 individuals and groups associated with the Taliban and Al Qaida specifically, instead of Afghanistan as a country[52].

Individualized sanctions punish their targets for causing them to reconsider policies or activities; when sanctions target non-state actors such as terrorists, they aim to deprive their targets of access to funds and prevent them from using the financial system to move and store money[53].

Anticipating the challenges in applying individual sanctions

Though personalization and individualization of sanctions is an excellent approach to addressing human rights abuse, it is vital to anticipate some challenges. The target country’s level of human rights protection may be more likely to worsen under an episode of targeted sanctions when compared with a situation where sanctions are not imposed; the same is true for comprehensive sanctions[54]. Sanctioned individuals routinely deny that they have the power to influence the policies that sanctions ultimately seek to affect. In this respect, they invariably claim that policy changes remained beyond their control, even though they held positions of responsibility within the government or the ruling party. The concerned individuals inevitably claim they had little influence or lacked independent decision-making power[55].

Individual sanctions generally do not affect their targets’ political views or behaviors; that is to say, they might not be genuinely intended to modify their targets’ political persuasion but aim to induce them to behave strategically[56]. Other challenges relate to the use of stolen, lost, or fraudulent travel documents by the sanctioned individuals or through the inattention or disregard of the sanction by the Member States[57]. For example, the travel bans imposed in Liberia beginning in 2001 noted that many sanctioned officials could travel under assumed names or on alternative passports where they held dual nationality[58].

Strategic cooperation for implementation of asset freezes

Concerning enforcement of asset freezes, it is vital to create a substantial technical capacity and cooperation from the private sector to seize assets and freeze them. The main reason is that implementing asset freezes in each country supporting the sanctions requires supporting domestic legislation, extensive cooperation from private sector financial institutions, and a high level of procedural formalization and capacity. Nonetheless, this cooperation is often lacking, especially in less developed economic systems. Another cause is that sanction lists often fail to provide sufficient information to unambiguously identify sanctioned individuals and entities[59].

Anticipating economic challenges of asset freezing

As I insisted earlier, asset freezes are a form of targeted sanctions, relatively effective in achieving their goals while affecting only the individuals and companies that are bad actors[60]. In that sense, asset freezes and other targeted financial sanctions may be imposed on government officials, government agencies, or private companies critical to the target country’s economy[61]. For example, a country’s central bank, national oil company, or national shipping line may be severely compromised due to its inclusion on a financial blocklist. In addition to the explicit prohibitions imposed by targeted financial sanctions, it is vital to anticipate economic challenges when international banks and corporations withdraw from the target country altogether because the burden of compliance with these measures is so significant and the potential penalties so high.

Other challenges concern identifying assets for freezing, mainly when the owners use fugitive accounts and names in foreign countries; this is a practice by many leaders from smaller states. Under US regulations, opening an account with a bank by a blocked national is not a credit transfer, and there is no reason why this transaction should be prohibited. The account, once created, becomes automatically blocked, and the money of a blocked national, up to this time uncontrolled, is brought under the control of the state[62].

Practical application of smart sanctions

Unlike comprehensive sanctions that set measures whose consequences affect the entire country, smart sanctions target specific individuals and groups accused of carrying out activities such as terrorism, territorial aggression, and human rights violations of which the international community or its members disapprove[63]. Smart sanctions cover specific measures, most notably the freezing of assets, financial and travel restrictions, boycotts on particular commodities, and arms embargoes[64]. In general, the use of smart sanctions is based on the optimistic assumption that they can inflict pain only on the primary targets, usually ruling elite members and non-state actors such as terrorist groups, but avoid collateral damage by sparing civilians from adverse effects and preventing a repeat of the painful experience of ordinary people in the country[65].

Democratization of sanctions and public ownership

Concerning the effective enforcement of sanctions and their impact on the population, I agree with Biersteker and van Bergeijk that sanctions can lead to more substantial and compelling opposition in democracies than in autocracies[66]. Undoubtedly, authoritarian regimes can distribute the losses and gains from sanctions in ways that penalize their opponents and reward their supporters, thus strengthening authoritarian rule in the process, as was the case in Iraq during the 1990s[67]. Targets of sanctions in authoritarian regimes often mobilize popular support through their control of the media and their ability to depict the sanctions as targeted not against the proscribed activities of the regimes in power but against the entire nation[68]. However, when the target population approves of the behavior that the sanctioning organ is opposing and seeking to change, it increases the chance of success because the population owns it. I can infer from this discussion above that in democratic countries, public opinion can significantly influence the lifting of sanctions because they inevitably affect the lives of citizens by imposing restrictions on economic activity, with public discontent building up. However, in the case of authoritarian political regimes, such public discontent is often absent. In this respect, economic sanctions are more likely to have a positive impact when people can express dissatisfaction in elections, influencing policy-makers. A typical example is the 2015 Iran nuclear deal, primarily reached because of the 2013 presidential elections. Hassan Rouhani was a moderate leader who pledged to lift economic sanctions[69].

The need for public awareness and depoliticization of sanctions

If the sanctions fail, they worsen the situation because instead of altering the political leaders’ policies, they become an excellent opportunity to mobilize support. For Saddam Hussein, sanctions did not change the behaviors of the Taliban in Afghanistan; the same applies to Slobodan Milosevic in Yugoslavia, Charles Taylor, and others linked to wars in the 1990s. Instead, sanctions should target their wealth and resources, such as diamonds, oil, and timber, to succeed[70]. As a solution, it is vital to keep people in target countries informed of what they can do to challenge their leaders. In other words, coupling sanctions with a concerted messaging campaign will diminish leaders’ ability to politicize these measures for their ends. An informed public is a powerful asset; engaging influential public figures from various fields can be particularly effective[71].

Setting strategic objectives for effective enforcement

In the sections above, I have discussed the adverse effects of comprehensive sanctions. In reality, comprehensive sanctions injure innocent civilians in the target country and thus violate the ideal objective of human rights protection; that is, the sanctions imposed on countries violate the rights of vulnerable citizens because they lack strategic and achievable goals. In other words, economic sanctions cannot be effective unless there is clear communication of the purpose for which they are imposed[72]. For example, economic sanctions against Iran were set to halt its nuclear development. However, the burden of economic sanctions became greater since Iran had not withdrawn from the NPT and insisted that its nuclear development was for a peaceful purpose[73].

However, the Iran nuclear agreement did not hamper Iran’s conventional weapons in the Middle East region nor reduce its influence over neighboring countries such as Iraq, Lebanon, and Yemen. Additionally, it has continued to threaten Israel, which led the USA to withdraw from the agreement and unilaterally reimpose sanctions[74]. I can infer that these sanctions were far from achieving their strategic goals, partly because they had not placed enough economic burden on Iran to exceed its resolve.

Improving the pre-assessment and conceptualization of sanctions

Undoubtedly, not all sanctions can apply to any country; specific issues and needs exist for a particular country. Therefore, paying special attention to the pre-assessment and contingency planning of sanctions would enable a more solid conceptualization and design, thereby maximizing the chances of success[75]. Regrettably, the cases I discussed earlier prove that the increasing imposition of harsh sanctions has not been accompanied by a thorough pre-assessment and contingency planning stage[76].

Decisions for imposing sanctions are frequently made at short notice, whereas there are early warning signs of impending crises that should allow the decision-makers time to prepare measures before the final decisions. Consequently, this lack of adequate preparation undermines the effectiveness of the sanctions[77]. As a solution, the sanctioning organ should pay particular attention to the pre-decision phase, contextualize the measures, and decide accordingly. In that sense, I believe these sanctions can even be avoided if it is clear they will worsen the situation. In other words, while the injury to innocents is a drawback to sanctions use, the decision-makers should compare the cost and benefits that sanctions provide.

SUMMARY *

The article’s argument is that sanctions imposed to protect human rights routinely produce the opposite distribution of harm from the one intended. Comprehensive measures reach populations rather than rulers, since a leadership controlling scarce resources gains rather than loses from scarcity, and the resulting hardship supplies material for the argument that the outside world is the enemy. The author then applies the same scepticism to targeted measures, noting that individuals disclaim the influence attributed to them, that identification and asset tracing frequently fail, and that a designated central bank or shipping line is not in practice separable from the economy it serves. What emerges is less a case against sanctions than a case against imposing them without the assessment, monitoring and defined objectives that would allow anyone to know whether they were working.

CONCLUSION

The main goal of sanctions imposed by the UN Security Council, the EU, the USA, or other major powers is to prevent or halt armed conflict in the form of cross-border aggression and civil wars. Equally, they are also used to respond to situations including terrorism, the proliferation of weapons of mass destruction, illegal change of government, governance of natural resources, human rights violations, and protection of civilians. In this paper, I discussed how strangling a country’s economy does not necessarily impose any economic pain on government leaders or affect them specifically, but they affect vulnerable citizens.

As a solution, sanctions should not be generalized for the entire country through its so-called government regime but tailored to specific situations and individuals. This solution refers to targeted sanctions focusing on specified individuals, groups, entities, activities, commodities, or regions rather than countries. This approach is expected to help inflict costs on the target regime and its supporters while minimizing harm to the general population. These include travel bans and asset freezes, arms embargoes, restrictions on trade in specified commodities or luxury goods, or restrictions on economic sectors such as finance or transportation. However, it is regrettable that the sanctions that target elite individuals are essentially being turned into the suffering of the innocent masses.

In this paper, I offered recommendations for policy-makers about addressing these challenges and implementing economic sanctions to maximize their effectiveness. These include undertaking significant steps to gain widespread international cooperation for the sanctions efforts and setting clear and achievable goals for making sanctions realistic and objective, clear communication, and public involvement. Therefore, the decision-makers should compare the cost and benefits that sanctions provide because the injury to innocents is a drawback to sanctions use. They should examine other courses of action, such as international and diplomatic negotiations.

If the sanctions are a last resort, they should be highly targeted, contain precise enforcement mechanisms, and erect workable structures capable of monitoring the effects of each sanctioned event throughout its effective duration. I have demonstrated how comprehensive and targeted sanctions contribute to severe human rights abuse. As a solution, it is vital to engage international organizations and non-governmental organizations to foster auxiliary environments protecting minority groups within targeted states.

Finally, diplomats, government officials, and heads of state should consider these unintended negative consequences sanctions may have on vulnerable groups in target states. In that sense, non-state actors and international organizations must increase their ground support to minorities in states witnessing economic sanctions.

POTENTIAL SOLUTION *

The critique advanced here is well supported and rests at one point on a figure that has since been substantially revised, which is worth stating because the correction strengthens rather than weakens the argument. The estimate of half a million or more child deaths in Iraq derived from surveys later shown to have been shaped by the Iraqi government, and subsequent analysis has put the excess mortality considerably lower. The humanitarian catastrophe was real, and the Oil-for-Food arrangements did not prevent it; but a case built on a contested number invites dismissal, while the same case built on the documented collapse of health, water and nutrition indicators does not.

That leads to what the sanctions literature has actually established, which supports the author’s scepticism with more precision than the article claims. Comprehensive measures rarely change the behaviour of authoritarian governments, and the reason is structural: scarcity strengthens whoever controls distribution. Targeted measures avoid the worst humanitarian effects and do not, on the evidence, achieve policy change either; what they achieve is constraint on capability and the signalling of a position. Judged as instruments of compulsion they fail almost everywhere. Judged as instruments of constraint and of denying legitimacy they perform better, and the honest question for policymakers is which of these they are attempting.

Two developments since the period the article covers deserve attention, because they respond directly to its concerns. Standing humanitarian carve outs, of the kind adopted by the Security Council in Resolution 2664 of 2022, exempt humanitarian activity across all United Nations regimes rather than requiring case by case authorisation, and they were adopted precisely because the previous arrangement placed an unworkable burden on relief agencies. And the persistent problem the article identifies of over compliance, where banks and companies withdraw from a country entirely rather than assess each transaction, is now recognised as one of the principal drivers of humanitarian harm; it is addressed not by changing the sanctions but by giving financial institutions clear guidance and legal comfort about what remains permitted.

The procedural dimension deserves more weight than the article gives it. The author notes that designated individuals lack effective remedy, and this is the point at which sanctions practice has been most seriously challenged in law. The Kadi litigation before the European courts established that listing without notice, reasons or the possibility of challenge is incompatible with fundamental rights, and the Office of the Ombudsperson created for the Al Qaida regime is the response, though it covers only that one regime. Extending independent review across all designation regimes would address the author’s concern about remedy while making the measures more defensible, and it is achievable without weakening them.

Finally, the article’s closing recommendation, that decision makers should consider negotiation as an alternative, understates what the record shows. Sanctions have contributed to outcomes chiefly where they were coupled with a negotiation offering a defined path to relief, as in the Iranian agreement of 2015 and in the Libyan settlement over Lockerbie. Where no such path exists, the target has no incentive to move and the measures become permanent, which is the condition the author describes. That is the practical lesson for this journal’s readers: sanctions are not an alternative to mediation but a source of leverage within it, and applied without a process to which that leverage can be attached, they impose costs without purchasing anything.

* Added by the WMO Editorial Team

REFERENCES

[Bibliography and footnotes 1 to 77 as in the original manuscript]

Supplementary references added by the WMO Editorial Team

Charter of the United Nations, 1945, Articles 39, 41 and 42.

United Nations Security Council Resolution 2664 (2022) establishing a humanitarian carve out across United Nations sanctions regimes.

Court of Justice of the European Union, Kadi and Al Barakaat International Foundation v Council and Commission, Joined Cases C 402/05 P and C 415/05 P, judgment of 3 September 2008.

Office of the Ombudsperson to the ISIL (Da’esh) and Al Qaida Sanctions Committee, United Nations, New York.

Interlaken, Bonn Berlin and Stockholm Processes on targeted sanctions, 1998 to 2003.

Dyson, T., & Cetorelli, V. (2017). Changing Views on Child Mortality and Economic Sanctions in Iraq: A History of Lies, Damned Lies and Statistics. BMJ Global Health, 2(2).

Hufbauer, G. C., Schott, J. J., Elliott, K. A., & Oegg, B. (2007). Economic Sanctions Reconsidered (3rd edition). Peterson Institute for International Economics, Washington, D.C.

Biersteker, T. J., Eckert, S. E., & Tourinho, M. (Eds.) (2016). Targeted Sanctions: The Impacts and Effectiveness of United Nations Action. Cambridge University Press, Cambridge.

The potential and threats of Somalia’s accession to the East African Community

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

EDITORIAL NOTE *

The author of this article works at the United Nations High Commissioner for Refugees; the views expressed here are his own and do not reflect the official position, past, present or future, of the United Nations or of UNHCR. The assessment of the states discussed, and the attribution of responsibility for regional insecurity, likewise reflect the author’s own perspective; this journal’s editorial position is neutral as between the states concerned.

ABSTRACT *

This article examines Somalia’s application to join the East African Community and asks what the accession would mean for both parties. The author first sets out the Community’s history, its admission criteria and its achievements in transport, immigration and tourism, before surveying the conditions in Somalia: drought and food insecurity, weak governance, dependence on imported grain, and the continuing insurgency of Al Shabaab. Two lines of argument are then developed. The first concerns opportunity, through market access, the transfer of knowledge, the coastline linking the region to the Arabian Peninsula, and the established Somali business networks in East African cities. The second concerns risk, drawn from the Community’s failure to complete its own integration, the limited effect of the accessions of South Sudan and the Democratic Republic of the Congo, and the repeated failure of regional forces to restore security in Somalia. The author concludes that the Community should consolidate before expanding, and that Somalia’s accession requires preventive security measures agreed in advance.

KEYWORDS

The East African Community, regional integration, conflict resolution, economic development, sustainable peace and security, terrorism.

INTRODUCTION

Regional integration is a powerful catalyst in the business environment’s development, advancing social and economic development. Regional integration policies and initiatives are adopted to pursue shared economic, social, and political action, and economies in developed and developing regions implement them. The EAC currently has seven member countries: Tanzania, Kenya, Uganda, Rwanda, Burundi, South Sudan, and the Democratic Republic of the Congo’s accession in April 2022, with Somalia’s current request to join the integration. Somalia’s membership has been a long time since its application in 2012.

More particularly, this country has been a victim of social, economic, political, and security problems for so long. The Somali problems will not be new or the only ones in the EAC; the Democratic Republic of Congo (DRC) has been an emblematic signal of insecurity and violence, especially in the Eastern region, political problems in Burundi, and South Sudan that are still struggling with its reconstruction in connection with various insecurity issues. On another side, Rwanda and Uganda have made tremendous steps in ending the political tension between these two countries.

Though the number of members has increased and is still growing with new accessions, EAC is still struggling with the implementation of the Treaty establishing it, including the full implementation of a single customs territory, legal and political harmonization, and security issues. This EAC’s experience pushes me to analyze how much Somalia will contribute to regional integration considering its local problems. This analysis consists of the potential of Somalia’s accession and anticipated threats. In that sense, this analysis serves as an alert for the EAC to adopt appropriate preventive measures before being overloaded with unresolvable problems.

MAIN CORPUS

The genesis, development and major achievements of the East African Community

Typically, regional integration presents different benefits, including increasing trade and investment, economic cooperation, and other various opportunities for globalization. The EAC has its particularity of being a region characterized by small states with small markets. Therefore, focusing on economic cooperation and regional integration can create an expanded and unified market, diversify the monetary base, and increase competitiveness in the global market[1]. Before elaborating on the potential of the EAC member states to the bloc, I must trace its historical view.

The East African Community (EAC) was established in 1967 as a Customs Union between Kenya and Uganda but collapsed in 1977 due to political disparities. Tanganyika (Tanzania) joined in 1927, Rwanda and Burundi in 2009, and South Sudan in 2016. This bloc is founded on main pillars such as a Customs Union, Common Market, Monetary Union, and Political Federation, while the organization’s main aim is to make the East African economic and political bloc powerful and sustainable[2].

In that process, other important events are emphasized, such as the Customs Union between Kenya, Uganda, and, later, Tanganyika, established in 1917. Other subsequent protocols include the East African Currency Board, the Postal Union, and the Court of Appeal for Eastern Africa. In that channel of events, the East African Governors’ Conference, the East African Income Tax Board, and the Joint Economic Council were established between 1905 and 1940. The East African Airways Corporation was incorporated in 1946, and the East African Common Services Organization (EACSO) was developed in 1961, which replaced the East African High Commission[3].

Admission criteria under the East African Community

The EAC Treaty requires the new countries to accept the community set out in the Treaty, adhere to universally acceptable principles of good governance, democracy, and the rule of law, and observe human rights and social justice[4].

Other criteria include the potential contribution to strengthening regional integration, geographical proximity to and inter-dependence between it and the EAC partner states, establishing and maintaining a market-driven economy, and social and economic policies compatible with the community. These include Somalia’s institutional and legal frameworks, policies, strategies, and programs, and its areas of cooperation with the EAC member states[5].

Significant achievements of the East African Community

The EAC has made some achievements, including interstate road transport through reduced documentation for crews and vehicles at border crossings. This transport facilitation has made transportation more accessible and encouraged traders from member states, contributing to economic ties and strengthening the region’s financial position. Additionally, it had harmonized immigration regulations, such as introducing an EAC passport, free visas for immigrants within the community, and Customs Union through one border-posts system[6].

Tourism is one sector where the EAC has been strategic in its harmonization endeavors. The EAC partner states signed necessary protocols to help promote East Africa as a single tourist destination, attract more tourists, and increase the tourism industry’s contribution to the East African economy. A single East African Tourist Visa for Kenya, Rwanda, and Uganda EAC countries has been available since 2014[7].

Major problems facing Somalia as a new EAC member

Somalia has been facing and is still facing various social, economic, and political problems. Somalia has been a victim of a drought threatening to cause famine in different areas for so long. Many Somali people have been victims of acute food insecurity and need humanitarian assistance. Additionally, the lack of funds to address the problems of drought, climate change, malnutrition, and famine, is a critical concern[8]. Worse, insecurity resulting from Al-Shabab terrorism cannot allow the government to focus on other socio-economic aspects. Al-Shabab has remained a severe threat to the government and its institutions.

As I introduced above, the deteriorating situation of drought has affected half the population. There is a severe issue of food insecurity due to the failed rainy season, insecurity, lack of functioning governance structures, poor infrastructure, lack of adequate policies supporting integration into the community, an increasing inflation rate, many Somalis being at risk of famine and starvation, many displaced people, consequences of war in Ukraine and Russia, because Somalia imports much of its wheat from Ukraine and Russia. Insecurity and terrorism are significant problems that Somalia is adding to the list of issues facing the EAC[9]. Without being cynical, I can realize that the delayed admission of Somalia into the EAC might have resulted from these decades-long problems, but most importantly, its insecurity issue. However, once Somalia becomes a member of the EAC, the latter must commit to addressing them. Otherwise, Somalia’s accession will be another burden to the bloc.

An opportunity to boost Somali economic development

When establishing the EAC, the plan was to form a political federation to strengthen and expand economic, political, social, and cultural integration. In that sense, the EAC formed the East African Community and Customs Union (EACCU) in 2005 with the primary goal of promoting the free flow of goods and services, labor, and capital from one partner state to another by lowering trade barriers and facilitating markets for each member state’s products[10]. For Somalia, joining the EAC will make its markets more competitive, give consumers more options, and improve resource mobilization efficiency, industrialization, and scale productivity[11]. Additionally, Somalia will benefit from knowledge transfer, including technologies brought by companies investing in the country, by taking the excellent example of Rwanda.

In the same context, free trade will eliminate economic distortions caused primarily by other neighboring countries when importing and exporting goods, services, and foreign exchange. In that sense, free trade will encourage competition with other businesses in the region and political stability and security in the country because the country will need to attract foreign investors and people movements.

Undoubtedly, Somalia will benefit significantly through the increased movement of goods, services, and people within the bloc and expanding intra-regional trade. Furthermore, exploiting Somalia’s blue economy resources, such as fish, will boost the regional economy. If Somalia becomes a full member of the East African Community, Somali citizens will now be free to move and do business across the bloc, and the country will benefit from the community’s economic, political, and social support programs. In these free movements of people, the citizens will have visa-free entry to the EAC countries and be eligible for an East African passport, like any other citizens from the EAC member states. However, I recommend strict border control measures to prevent the spread of terrorists in all areas of the region.

Somalia’s accession as an economic opportunity for the East African Community

Somalia has the longest national coastline of over 3000 km in Africa, linking Africa to the Arabian Peninsula, which the region can tap into to increase intra-regional trade[12]. In other words, the geographical structure of Somalia will benefit other EAC member states due to its long Indian Ocean Red Sea route connecting Africa to the Arabian Peninsula, a significant economic zone, and, by extension, the rest of Asia; Somalia can serve as a gateway to international trade.

Moreover, Somalia’s accession to the EAC will undoubtedly strengthen the organization because Somalis share historically rich and diverse everyday experiences, such as culture and Kiswahili, which can be used to build trust and networks for business and trade with other East Africans. Somalis have contributed to East African cities’ economic and social transformation by investing in local companies[13]. In the 1990s, many Somalis fleeing anarchy in Somalia settled in Nairobi, transforming Eastleigh, then a residential suburb of Nairobi, into a bustling business zone. They established various businesses, including export and import networks and local services[14].

Finally, admitting Somalia to the EAC will significantly raise the movement of goods, services, and people across the bloc, thereby increasing the bloc’s gross domestic product (GDP) and encouraging the region’s already established Somali businesses[15].

Failed areas of integration before Somalia’s accession

Regional integration arrangements include other protocols to address specific integrative measures and deepen integration. However, some of these protocols are ineffective due to delayed legislative approval processes among members and political reasons.

The Customs Union was established in 2005, and the Common Market in 2010[16], while Monetary Union, expected to be done in ten years, and the Political Federation are still unfinished, despite long talks and negotiations. The Protocol on Monetary Union was adopted under the EAC Treaty and signed in 2013. The period of ten years was a progressive opportunity for the EAC partners to converge their currencies into a single regional currency[17]. From this plan, I see that the Political Federation is the final goal of the integration process in this region. It would allow them to conduct a standard foreign and security policy and contribute to more effective implementation of the previous stages of cooperation. Political cooperation would improve the region’s stability and strengthen its position, especially in negotiations with other countries outside the bloc.

In addition to this failure I emphasized above, I deplore the lack of specific institutions in member states whose primary responsibilities would be implementing the protocols in collaboration with all stakeholders, governmental institutions, the private sector, and civil society. Furthermore, difficulties related to the lack of capacity and resources to implement the protocols need particular attention[18]. From this discussion above, I can infer that EAC failed to implement its primary goals, revealing significant delays in solving major regional problems. The delays in implementing the protocols that failed some EAC goals show the organization’s weakness, especially the concerned member states’ lack of engagement and commitment[19].

Additionally, I can observe that the principle of full and effective regional integration exists only on paper and is not in the organization’s actual practices. This failure of full and effective integration has been the cause of many other failed projects, including rerouting major regional infrastructure, railways, and oil exploitation in South Sudan. It pushes me to conclude that these failures reveal serious difficulties in cooperation among the member states and their commitment to previous integration initiatives[20].

Lack of significant added value from recent accessions

Typically, regional integration is a standard policy or project aimed at increasing links and economic, political, and social transactions, strengthening integration processes, intensifying intergovernmental cooperation, and creating regional identity among the community. For example, free trade has not happened as stipulated in the protocols because there have been conflicting situations between member states leading to the closure of the borders[21]. In other words, free trade only happens when it is convenient for one member state. In that regard, accession to the EAC by South Sudan should have given it an opportunity for economic stabilization, while the rest of the member states should increase their profits related to the oil industry in South Sudan and Uganda.

I agree with Gibb that there has been no significant change since its accession by DRC, apart from becoming another complex security and political baggage. South Sudan, which became a full member of the EAC in September 2016, is yet to add value[22]. I understand that when joining the community, DRC committed itself to be part of the community and entering the various areas of cooperation in all the sectors, programs, and activities that promote the four pillars of regional integration, namely, the Customs Union, Common Market Protocol, Monetary Union, and the Political Federation.

The lesson from the Democratic Republic of the Congo’s accession

When joining the EAC, the DRC expected to benefit from customs taxes exemption at any of the region’s border points. The main reason is that most of the DRC’s key markets, such as Bukavu and Goma, are geographically closer to the Kenyan port of Mombasa than the Atlantic Ocean. Therefore, open borders via the EAC could reduce shipping and receiving commerce time. Undoubtedly, this is a massive benefit to a country that needs assistance with infrastructure projects[23].

On another side, the DRC’s membership provides the EAC states access to the Atlantic coast. I understand that this access is an important development since EAC countries needed to utilize Indian Ocean-based ports in Kenya and Tanzania, and an obvious problem with these options is piracy off the Somalia coast.

However, the DRC’s membership in the EAC brings another set of challenges, including insecurity and acts of violence in the Eastern region of DRC by M23[24]. Therefore, the EAC must double its efforts to integrate DRC and promote peace between its member states to maintain bloc unity. Though member states of the bloc agreed to deploy a regional security force led by Kenya to the Eastern DRC, their productivity is still questionable.

Above all, I realize that after two years of DRC’s accession to the EAC, there has not been any significant change in cooperation between DRC and other EAC member states; the tension between DRC and Rwanda increased from allegations of Rwandan support to M23. Therefore, I am convinced that welcoming new members would be an opportunity for the EAC to focus on the full implementation of the EAC treaty, especially the monetary union, ensure the performance of the EAC Common Market Protocol, attain an EAC Single Currency, and strengthen regional peace, security, and governance.

Failed attempts to address insecurity and terrorism in Somalia

Beforehand, I must recall that East Africa Community lacks an integrated conflict prevention, management, and mitigation framework. It is a security weakness for the East African region and a significant threat to the dream of effective regional integration. For the issues of insecurity in Somalia there have been initiatives and efforts by the African Union to address insecurity issues in East African countries, particularly in Somalia. These include the African Union (AU) itself, African Standby Force (ASF), Intergovernmental Authority on Development (IGAD), and the Eastern African Standby Force Secretariat (EASFSEC)[25].

In restoring peace in Somalia, Sudan and Uganda were identified as the countries that would deploy troops under the IGAD Peace Mission in Somalia (IGASOM). The other IGAD countries were to assist in providing logistics, equipment, emergency assistance, and training for the Somalia Army and Police[26]. The failure of IGAD resulted from its organizational structure, logistical and financial issues, and an arms embargo imposed on Somalia on January 23, 1992, following the rapid deterioration of the situation and heavy loss of human life after the overthrow of Siad Barre[27]. I understand that without a trained national army and police force, it will be difficult for the Somali government to be able to address the insurgents in the country while at the same time protecting the local population.

Somalia’s accession as an amplification of existing security problems

No single country within the EAC makes a significant difference because almost every member state faces some of the following insecurity problems. These include increasing levels of terrorism and piracy off the Somali coast, cross-border smuggling between Kenya and Sudan, and between Kenya and Somalia[28]. There is a general increase in violent crimes in the cities of some EAC member states, such as burglary, hijacking, poaching in the game parks, banditry and robbery, and cattle rustling in the rural areas[29].

I must signal the decades-long ethnic violence in Burundi that inevitably deterred the achievement of political and social harmony and rendered peace deals unworkable. Worse than that, the state’s weakness allowed perpetrators to go unpunished. In other EAC member states, these social and political conflicts have created many refugees and Internally Displaced Persons (IDP)[30]. Without any doubt, the influx of refugees from conflicts in neighboring countries retards development for both hosts and the refugees, and most often, they can become another cause of insecurity when they try to fight for their rights.

From this discussion above, I can infer that conflict and conflicting situations (intrastate and interstate) have become the common denominator among the EAC member states. Somalia has been struggling with insecurity resulting from terrorism, while Burundi has continued ethnic and political problems. However, Rwanda has managed to recover from the consequences caused by the Genocide committed against the Tutsi in 1994; DRC is still struggling with the Rwandan ex-FAR that is a threat to Rwanda, the newly formed M23 rebel insurgency in the Eastern DRC. Somali’s social, economic, political, and security problems are added to other member states’ issues, including Burundi, South Sudan, and insecurity in the Eastern area of the Democratic Republic of Congo (DRC)[31].

To address this insecurity in the Eastern region of DRC, the EAC has been calling for armed groups in eastern DRC to lay down their arms while reiterating respect for the territorial integrity of the DRC. However, all these endeavors have sounded to a deaf ear because insecurity escalated in that region. I realize that the only way to address these conflicting situations, whether in Somalia, Burundi, or DRC, is to focus on the political realities of the country more than on abstract ideas. Finally, if EAC opts to welcome new members, it should commit to addressing the insecurity fully and effectively, ensure the protection of human rights, and put an end to internal and interstate conflicts.

An opportunity to end terrorism in the Horn of Africa, or another security burden?

As I insisted earlier, Al-Shabab has been deteriorating security in Somalia, infiltrating Uganda and Kenya, and ravaging many people’s lives. It signals that the EAC does not have adequate security organs and mechanisms. Worse than that, there has been an international reluctance to intervene in Somalia after the United Nations Mission in Somalia (UNOSOM) left the country to rely on informal groups for the provision of basic social amenities that turned out to harbour terror groups[32]. Consequently, I believe Somalia’s accession to the EAC will be another security burden for the EAC.

Somalia has been for so long a lawless country with a disorganized government, providing an environment for fugitives and terrorists to hide and plan attacks not only in the region but worldwide. Some of the causes include, among others, access to Somalia is unrestricted mainly due to the absence of customs or immigration officials to patrol the long Indian Ocean Coastline that, consequently, attracted militants fleeing from the hotspots of Afghanistan, Iraq, Yemen, and Egypt[33]. It indicates that Somalia has been a regional hub for terrorists due to patrimonialism, the militarization of the state, and being the victim of the Cold War. Since 1991, after the withdrawal of American backing at the end of the Cold War, Somalia has had to contend with a civil war that has led to governmental failure to provide services and guarantee state territorial sovereignty, massive displacement of people, and social and economic decline[34].

Inevitably, the decline of the Somali state has coincided with the global preoccupation with combatting terrorism, with Western coalitions going to war against the Taliban in Afghanistan and Iraq and drone attacks in Yemen and Pakistan. Therefore, Somalia has become a haven for fleeing Islamic militants who regroup and seek retaliatory attacks on western interests. Additionally, the free flow of contraband weapons and arms, and organized terror groups, will put the EAC region in severe security challenges that require a timely response and particular resources. Unless the EAC adopts adequate preventive measures, Somalia’s accession is another security threat to the region.

A wake-up call for security measures in the EAC

Since its inception in 1999, the EAC has made tremendous steps to create a framework and structures to address peace and security issues. However, the systems have not been effective due to a lack of clear strategic direction in the critical areas of cooperation. Against this background, upon the Sectoral Committee on Interstate Security recommendation, the EAC Council of Ministers established an expert group to develop a Regional Strategy supported by a practical implementation plan[35].

The strategy was developed through a highly consultative and inclusive process. It was expected to boost peace and security sector activities and be the foundation for cooperation in addressing regional peace and security threats. In that sense, I agree with Ball that technological advancement, knowledge dispersal, and globalization can influence crime types and trends, especially in cyber crimes, money laundering, and terrorism financing[36].

Article 124 of The Treaty for the Establishment of the East African Community recognizes the region’s need for peace and security. The same article describes wide-ranging approaches for implementing a stable and secure regional environment[37]. This kind of environment can only be possible by promoting the development and harmonious living of the people of East Africa.

This strategy covers collaboration on cross-border crimes, theft of automobiles, drug trafficking, terrorism, money laundering, and other crimes. Considering the severe security concern in Somalia as a new joiner to the EAC, I see that this is an opportunistic time for the EAC as a bloc to adopt appropriate security measures, including reviewing and implementing the existing security plans for its sustainable integration.

SUMMARY *

The article weighs two propositions that are both plausible and mutually opposed. Somalia’s accession offers the Community a coastline of exceptional strategic value, access to the Arabian Peninsula and beyond, a fishing economy largely unexploited, and business networks already operating in East African cities. It also imports into the bloc an insurgency that has attacked two existing members, a state whose capacity to police its own territory is limited, and a humanitarian emergency of the first order. The author’s resolution is sequential rather than substantive: the question is not whether Somalia should eventually join but whether a Community that has not completed its own integration, cannot enforce its Common Market Protocol against members who close borders, and possesses no functioning conflict prevention framework, is presently in a condition to absorb it.

CONCLUSION

Regional integration is a way to encourage trade flow between member states and facilitate more efficient allocation of resources by stimulating competition and increasing the capacity of the internal market. That is expected to result in faster economic growth and increased per capita income. EAC is among regional organizations that have often been inadequately operating, and whenever they run, they end up with negative consequences. The community was established to make East Africa prosperous, competitive, secure, stable, and politically unified. Its orientation was to form a political federation that would strengthen and expand economic, political, social, and cultural integration.

However, EAC has proved unable to solve the main regional problems. Somalia is joining the EAC with various economic, political, and security issues to prevent them from becoming another burden to the community. To benefit from the integration, Somalia should improve its institutions by harmonizing the Federal and Regional governments, and reforming its internal policies, laws, and security, especially addressing the issues of terrorism by Al-Shabab. Apart from increasing the number of military and police forces, it should develop army and police control measures and ensure their personal and professional development. Furthermore, strengthening its political and military cooperation with Eritrea and Ethiopia as its neighboring countries in the Horn of Africa, reinforcing the border control measures, and working with IGAD is a strategic way to improve its internal political and security stability.

Additionally, it should adopt strategic plans with a progressive implementation plan to boost its economy and improve its infrastructure which is still poor. In this context, it should reinforce its work and cooperation with Non-Governmental Organizations operating in the region to make their economic functions more beneficial to the country and address their dark side that may flourish if they are not well utilized.

On another side, EAC should support Somalia by adopting the mechanisms and setting agenda for its progressive integration so that it can overcome the struggles of state-building. Finally, the EAC members must first work on their unity and cooperation, resolve any conflict between them fully and effectively, and enhance regional security as a group. Instead of focusing on membership expansion, EAC should review its regional realities and set achievable goals. In this sense, it should fully and effectively focus on security and economic integration as the major problems facing it, the success of which can enable it to undertake other integration phases. Moreover, it should be imperative for each EAC member state to have an internal organ or institution in charge of the implementation of the EAC treaty.

POTENTIAL SOLUTION *

The article’s argument for consolidation before enlargement is well made, and it invites a comparison the author does not draw. The European experience of eastward enlargement addressed exactly this problem through accession conditionality: candidates were assessed against defined criteria, progress was monitored and published, and membership followed the meeting of benchmarks rather than a political date. The Community’s Treaty already contains admission criteria, as the article notes, and what it lacks is any mechanism for verifying that they have been met or for sequencing accession accordingly. Adopting one would allow expansion and consolidation to proceed together rather than as alternatives, and it would give a candidate state something valuable in itself, namely a published standard against which its own reforms can be measured.

That points to a further consideration the article touches only in passing. Accession is generally more useful to a fragile state as a process than as an outcome, because the requirements of membership supply external anchoring for domestic reforms that are otherwise politically difficult. Phased accession with defined stages, in which market access expands as institutional benchmarks are met, offers the Community a means of managing risk and offers a candidate a reason to persist with reform. It also converts the question the article poses, opportunity or burden, into something a process can answer over time rather than a judgment that must be made in advance.

On security, the framing deserves one qualification that strengthens rather than weakens the case. Al Shabaab already operates across the borders in question, and it has struck in Nairobi and Kampala without Somalia being a member of anything. Membership does not create that exposure; what it changes is whether cooperation against it is conducted through a common framework or bilaterally and ad hoc. Formal accession brings joint border management, intelligence sharing, coordinated financial measures and mutual legal assistance within a single structure, and there is a reasonable argument that this improves rather than worsens the regional position. The genuine risk lies elsewhere, in free movement provisions introduced before border and identification systems can support them, and the remedy is transitional arrangements of the kind used in every comparable enlargement.

Two elements would complete the picture. The article records at length what the region gains from Somalia’s coastline and what it fears from Somalia’s insurgency, and says less about what Somalia itself requires, which is investment in ports, fisheries and livestock export, resolution of the maritime boundary questions in the region, and support for federal state relations that remain the central unresolved question of Somali governance. And the humanitarian dimension the article opens with deserves to be carried through: a bloc admitting a member in the midst of a food security emergency has an obligation that precedes any question of trade or security, and regional grain reserves, coordinated response mechanisms and reduced dependence on distant suppliers are matters on which the Community could act now, whatever it decides about membership.

Finally, the article’s underlying counsel, that an organisation should complete what it has begun before undertaking more, is sound and applies beyond this case. It carries a corollary worth stating. Enlargement is frequently pursued because it is visible and consolidation is not, and a Community whose members close borders against one another while admitting new ones has chosen the appearance of progress over its substance. The remedy is not to stop enlarging but to make the internal obligations enforceable, which returns to the point that runs through this author’s work: institutions that cannot bind their own members cannot integrate anyone.

* Added by the WMO Editorial Team

REFERENCES

[Bibliography and footnotes 1 to 37 as in the original manuscript]

Supplementary references added by the WMO Editorial Team

Treaty for the Establishment of the East African Community, 1999, Articles 3 and 124.

Protocol on the Establishment of the East African Community Common Market, 2009.

Decision of the 23rd Ordinary Summit of the EAC Heads of State admitting the Federal Republic of Somalia, Arusha, 24 November 2023.

United Nations Security Council Resolutions 733 (1992) on the arms embargo, 2093 (2013) on its partial lifting, and resolutions establishing AMISOM and its successor ATMIS.

Integrated Food Security Phase Classification and FEWS NET, Somalia food security analyses.

Menkhaus, K. (2018). Elite Bargains and Political Deals Project: Somalia Case Study. Stabilisation Unit, London.

Copenhagen criteria for accession to the European Union, European Council, 1993, and the accession negotiation framework.

International Crisis Group, Africa reports on Somalia and the Horn of Africa, Brussels and Nairobi.

A critical need for sustainable peace and security for an effective East African Community integration

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

EDITORIAL NOTE *

The author of this article works at the United Nations High Commissioner for Refugees; the views expressed here are his own and do not reflect the official position, past, present or future, of the United Nations or of UNHCR. The assessment of the parties to the tensions described, and the attribution of responsibility for them, likewise reflect the author’s own perspective; this journal’s editorial position is neutral as between the states concerned.

ABSTRACT *

This article examines why the East African Community has not progressed beyond the first two of its four stages of integration, and locates the answer in the persistence of intrastate and interstate conflict among its members. After tracing the Community’s establishment, its achievements in the customs union and common market, and the limitations of the East African Court of Justice, the author documents a series of bilateral ruptures, including border closures between Rwanda and Uganda and between Rwanda and Burundi, trade restrictions among Tanzania, Kenya and Uganda, and the expulsion of migrants from Tanzania in 2013 that gave rise to litigation before the Court. Internal conflicts in the Great Lakes region, Somalia, South Sudan and eastern Congo are then assessed for their regional effects, together with the accession of the Democratic Republic of the Congo. The article closes with proposals: addressing root causes rather than symptoms, sustained diplomatic contact, the use of traditional conflict resolution mechanisms, an empowered regional standby force, and selective adaptation of the European experience of common security policy.

KEYWORDS

Regional integration, conflict resolution, economic development, sustainable development, common market, customs union, common currency, sustainable peace and security, terrorism, genocide, collective defense.

INTRODUCTION

The East African Community (EAC) started the regional integration process with the customs union and common market, which are temporary phases of the course of regional development to a political federation as its ultimate goal, which makes it the only regional economic bloc whose Treaty provides for the establishment of a political federation. However, the basis of stages of integration has experienced enormous challenges, including intrastate and interstate conflicts, that have reduced the course of the realization of this last goal. Consequently, within the EAC, progress has been slower than initially planned. Concerning peace and security, the EAC was expected to have an extensive and positive impact on peace and security among the member states. This impact of regional integration on security includes encouraging conflict resolution and working together towards a peaceful regional block, despite the challenges of limited resources and lack of motivation[1]. On the contrary, EAC has recorded dramatic conflict crises for so long while poverty in its member states continues to deepen. In that regard, I argue that there is a critical need for sustainable peace and security to make the EAC’s period-long dream of regional integration a reality.

Typically, when joining regional groupings, member states hope to address common challenges related to the improvement of economic policy, poverty reduction, and managing the process of liberalization in a collective and coordinated manner. The critical concern I will address in this study is the persisting intrastate and inter-state conflicts in the East African Community member states, their impact on effective regional integration, and a proposal of collective mechanisms for redress. In this critical analysis, I will briefly overview the EAC integration process, highlighting its significant achievements and roadblocks in the first section. In this trend of roadblocks, I will critically analyze peace and security issues and their impact on EAC integration in the second section. More importantly, I will picture intra-state and inter-state conflicts and their effects on the concerned state and region.

In the last section, I will propose sustainable peace and security mechanisms for effective EAC integration. No tool can better address security, political crisis, violence, human rights abuse, and political tensions within the EAC than understanding and addressing the root causes of conflicts. Other mechanisms consist of promoting consistent diplomatic talks between member states, empowering traditional conflict resolution mechanisms, strengthening the security standby force in the region, and promoting unity and trust between the EAC member states.

MAIN CORPUS

Panorama of the establishment of the East African Community

Typically, states establish regional and international organizations to protect and promote their interests. Most such interests are shared; hence, interest convergence is central to founding and maintaining regional organizations as avenues for interstate cooperation. For EAC, the main goal was to create a common market, customs union, Monetary Union, and political federation. It is deplorable that member states have not agreed on Monetary Union and political federation while the assigned timeline passed; these two aspects remain the EAC’s ultimate vision. In peace and security matters, under chapter 23, partner states agreed to cooperate in various political and security affairs by establishing common foreign and security policies. They also committed to identifying and addressing common-interest issues, coordinated responses to regional security issues, peaceful resolution of intra-state conflicts, coordinating defense policies, consultations on peace and security of partner states, and undertaking defense cooperation practices, such as joint exercises[2].

The East African Community (EAC) was established in 1967 as a Customs Union between Kenya and Uganda but collapsed in 1977 due to political disparities. Tanganyika (Tanzania) joined in 1927, Rwanda and Burundi in 2009, South Sudan in 2016, and the Democratic Republic of the Congo joined in April 2022. Approval for Somalia’s membership has been pending since its application in 2012. This bloc is founded on four main pillars: a Customs Union, Common Market, Monetary Union, and a Political Federation. The EAC’s main aim in this integration process is to make the East African economic and political bloc robust and sustainable[3].

This panorama of establishment recorded other vital events, such as the Customs Union between Kenya, Uganda, and Tanganyika established in 1917. Other subsequent protocols include the East African Currency Board, the Postal Union, and the Court of Appeal for Eastern Africa. In that channel of events, the East African Governors’ Conference, the East African Income Tax Board, and the Joint Economic Council were established between 1905 and 1940. The East African Airways Corporation was incorporated in 1946, and the East African Common Services Organization (EACSO) was developed in 1961, which replaced the East African High Commission[4].

Stages of integration versus failed pillars of integration

Customs Unions, Common Markets, and political federations have been the ideal of the EAC. Currently, the EAC is already a customs union and a common market. Supposedly, it is forming a Monetary Union and, optimistically, a future political federation[5]. As I will explore in the sections below, it is regrettable that trade conflicts, insecurity, and political tensions in the region have caused border closures, blocking movements of people, goods, services, and use of national airspace to commercial flights from partner states. As a result, the EAC is undermining the integration process to the extent that its entire project risks collapsing[6].

The customs union, which implies a free trade area by eliminating duty on goods and services, was the first integration step achieved by the EAC in January 2010, which became fully functioning in January 2010. In the second phase, a common market came into force in 2010. The expected market implies the free movement of goods and services, persons, labor, and capital in the Community. The two and third ideal goals are a Monetary Union and a confederation whose protocol was adopted in November 2013 with an expectation to be fully operational in 2023[7]. By the time of writing this paper, these two last stages were still distant dreams.

This failure is due to repetitive border closures between EAC member states. For example, the Gatuna and Kagitumba borders between Rwanda and Uganda and Akanyaru border between Rwanda and Burundi have been closed since February 28, 2019, due to political hostilities between the two countries[8]. Conversely, Tanzania has blocked products manufactured in Uganda, such as timber, milk, sugar, and maize. At the same time, Tanzania banned Kenya Airways from flying to Tanzania in retaliation to Kenya’s blockage of Tanzanian trucks moving to Kenya. The main reason was the COVID-19 pandemic[9]. I observe that these practices by EAC member states are enough to prove the EAC’s failure or unwillingness to implement its Treaty. Therefore, I can conclude that the EAC’s defeat in handling the COVID-19 crisis as a global problem is the most indicative of the dysfunction in the region’s integration process.

The particular role of the East African Court of Justice

In regional integrations’ courts of justice like the Court of Justice of the European Union, community law is an autonomous legal order in which partner states have accepted to cede part of their sovereignty to the Community. In other words, unlike international law, community law has precedence over the municipal law of the partner states, notwithstanding their constitutional philosophies[10]. This principle is different in EAC member states because Article 95 of the Constitution of the Republic of Rwanda of 2003, revised in 2015, places treaties and international agreements that Rwanda ratified in the third place of the hierarchy of legal order. That is after the constitution and the organic laws[11].

The case of the East African Court of Justice (EACJ) is different because it lacks execution machinery of its own and relies on the procedure obtained in the country where the Court decree or order is to be executed. In other words, the execution of the Court’s decision will be governed by the rules of civil procedure in the partner state in which the execution is to take place[12].

Undoubtedly, the more East Africa gets integrated, the more disputes of a transboundary nature are likely to happen. In that regard, the EACJ was expected to constitute a unique opportunity for the EAC integration by being the principal judicial organ of the Community, accessible, independent, and rendering expeditious justice[13]. Furthermore, the EACJ rules of procedures require the partner states to work together to address the region’s root causes of conflict and deprivation.

Areas of success in the common market and customs union

The EAC has made some achievements, including interstate road transport through reduced documentation for crews and vehicles at border crossings. This transport facilitation has made transportation more accessible and encouraged traders from member states, contributing to economic ties and strengthening the region’s financial position. Additionally, it had harmonized immigration regulations, such as introducing an EAC passport, free visas for immigrants within the Community, and Customs Union through one border-posts system[14].

Tourism is one sector where the EAC has been strategic in its harmonization endeavors. The EAC partner states signed necessary protocols to help promote East Africa as a single tourist destination, attract more tourists and increase the tourism industry’s contribution to the East African economy. A single East African Tourist Visa for Kenya, Rwanda, and Uganda EAC countries has been available since 2014[15].

Areas of failure in the implementation of the Treaty

Only the Customs Union and common market succeeded among the four pillars constituting the EAC treaty, though they still need improvement. Peace and security are essential pillars of the EAC treaty, and political integration is still a distant dream. In this present paper, I emphasize the aspect of peace and security. Additionally, I can observe that the principle of full and effective regional integration exists only on paper and is not in the organization’s actual practices. This failure of full and effective integration has been the cause of many other failed projects, including rerouting major regional infrastructure, railways, and oil exploitation in South Sudan. It pushes me to conclude that these failures reveal serious difficulties in cooperation among the member states and their commitment to previous integration initiatives[16].

Pending monetary union and political integration

The Customs Union was established in 2005, and the Common Market in 2010[17], while Monetary Union, expected to be done in ten years, and Political Federation are still unfinished, despite long talks and negotiations. The Protocol on Monetary Union was adopted under the EAC Treaty and signed in 2013. The period of ten years was a progressive opportunity for the EAC partners to converge their currencies into a single regional currency[18]. From this plan, I see that the Political Federation is the final goal of the integration process in this region. Regrettably, these two pillars constituting the final integration phases are still a distant dream.

The political federation would allow them to conduct a standard foreign and security policy and contribute to more effective implementation of the previous stages of cooperation. In that sense, political collaboration would improve the region’s stability and strengthen its position, especially in negotiations with other countries outside the bloc[19].

In addition to the failure of the Monetary Union and political federation, I lament the lack of specific institutions in member states whose primary responsibilities would be implementing the protocols in collaboration with all stakeholders, governmental institutions, the private sector, and civil society. Furthermore, difficulties related to the lack of capacity and resources to implement the protocols need particular attention[20]. From this discussion above, I can infer that EAC failed to implement its primary goals, revealing significant delays in solving major regional problems. The delays in implementing the protocols that failed some EAC goals show the organization’s weakness, especially the concerned member states’ lack of engagement and commitment[21].

Failure to safeguard peace and security in the region

Typically, regional integration is a standard policy or project aimed at increasing links and economic, political, and social transactions, strengthening integration processes, intensifying intergovernmental cooperation, and creating regional identity among the Community. On the contrary, as the EAC’s size expanded, the conflicts and insecurity areas also grew. Shockingly, EAC member states have been escalating political tensions that existed between themselves into bitter disputes. For example, free trade has not happened as stipulated in the protocols because there have been conflicting situations between member states leading to the closure of the borders[22].

I can optimistically envision that accession to the EAC by South Sudan and DRC should have given them an opportunity for economic and security stabilization. Simultaneously, the rest of the member states should increase their profits related to the oil industry in South Sudan and Uganda, natural resources, and the significant population in DRC. I agree with Gibb that there has been no substantial change since its accession by DRC, apart from becoming another complex security and political baggage. South Sudan, which became a full member of the EAC in September 2016, is yet to add value[23]. I understand that when joining the Community, DRC committed itself theoretically to be part of the Community and entering the various areas of cooperation in all the sectors, programs, and activities that promote the four pillars of regional integration, namely, the Customs Union, Common Market Protocol, Monetary Union, and the Political Federation.

Regrettably, there are various peace and security opportunities that EAC did not maximize adequately, thus causing persisting security issues in the region. Besides exploiting local security and defense opportunities, EAC relied much on overdependence on foreign security support. For example, The Africa Peace Facility (APF), which works as a conflict management tool instead of a preventive tool, overemphasizes conflict management and relies too much on Africa’s major donors, especially the EU, to fund the African Standby Force[24]. APF was established in April 2004 to strengthen peace and security through support for African peacekeeping operations. Its leading principles of partnership are African ownership, solidarity between AU member states to enable cooperation with regional sub-organizations in Africa, and creating conditions for development[25]. Regrettably, it has not contributed to promoting peace and security in the EAC because of many decades of struggles within this region.

Major causes of conflicts in the EAC region

Beforehand, I must recall that East Africa Community lacks an integrated conflict prevention, management, and mitigation framework[26], which I see as a security weakness for the East African region and a significant threat to the dream of effective regional integration. Peace, security, stability, and good governance are prerequisites to achieving sustainable economic development in any regional integration. Nevertheless, low-income states, with weak control combined with ethnic disputes, have been significant characteristics of the EAC member states. In that same trend, a practical peace and security safeguard process must consider the conflicts’ root causes.

Conflicts in the EAC region, particularly in the Great Lakes, have story-long causes and consequences. They result from identity division, structural violence, exploitation, the inability of the governments to manage multi-ethnic societies by guaranteeing equitable access to natural resources, lack of the rule of law, and political exclusion. Worse than that, conflicts in this region have always been complex because, though they seem intrastate initially, they have often extended to threaten the entire region[27].

Additionally, the partner states’ sovereignty has been another cause of political tension between member states. When establishing the EAC, member states reserved some sovereignty to member states until they became a federation. Unquestionably, reserved sovereignty is a crucial hindrance to the progress of the EAC because partner states have more sovereignty than the Community. Worse than that, the Community does not govern many vital matters; the member states govern them. This confusion causes breaches of the EAC Treaty and tensions between the partner states.

For example, in the case East African Law Society versus Secretary General of the EAC, the Court held that the EAC breached its duties to effectively investigate and redress possible violations of the principles in the EAC Treaty that arose from the allegedly illegal expulsion of Rwandan and Burundian immigrants from Tanzania in 2013[28]. In other words, the EAC failed to take remedial actions to ensure that expulsions conformed to regional legal standards and principles. This situation caused political tension between Tanzania, Rwanda, and Burundi.

In that case, the EAC argued that it had fulfilled its duties and that the states involved were responsible for remedying the situation, which they failed to do. Under articles 29, 71(1)(d), and 71(1)(l) of the EAC Treaty, it is the EAC Secretary General’s duty to both investigate possible violations of the EAC Treaty and to subsequently submit the findings of that investigation to the EAC Council of Ministers, the governing organ of the EAC[29]. Therefore, it was the responsibility of the Secretary-General to investigate the situation vigilantly, notify the Member State involved of its breach of the EAC Treaty, and take subsequent action following the investigation.

The status of inter-state and intra-state security issues

For decades, the Great Lakes Region states have been among the most affected by vicious and armed conflicts. Violent conflicts in the Great Lakes Region, Rwanda, Burundi and the DRC have caused massive damage to property and loss of lives. Under the memorandum of understanding, the EAC partner states committed to take measures to address the issues of defense, peace, and security. These measures include ensuring the maintenance of peace and stability in the region, avoiding and preventing conflict within the region, observance of good neighborliness, and peaceful resolution of disputes. In doing so, they made it a community vision to address the root causes of conflicts through observance of good governance, respect for human rights, and cooperation in defense matters, including preparedness for common defense and peacekeeping, conflict resolution, and disaster management[30].

The impact of inter-state political tensions on EAC operations

Beforehand, I must stress that the EAC cannot claim to achieve its mission of having a prosperous, competitive, secure, and politically united East Africa. Its member states do not adopt a structured security arrangement that can create the right environment for integration initiatives and protect the gains the Community has already attained. Unquestionably, political, ethnic, and other sources of civil conflicts, intra-state and inter-state conflicts are significant challenges to regional integration and economic development[31]. Below, I have demonstrated how at least each EAC member state entered into political tension with another member state.

Political tensions between Rwanda and Uganda

The Rwandan-Ugandan political tension broke a period-long friendship for countries with the same colonial history (both were colonized by Germany before Rwanda was transferred under the Belgian trusteeship after the German defeat). Their recent political tensions are based on accusations and counter-accusations between both countries to support enemies of either country, specifically Uganda and other countries providing training and army support to the Rwandan opposition groups[32]. On another side, Uganda charged Rwanda for making the Rwandan elements enter the territory and killing civilians. Consequently, these accusations and counter-accusations escalated into conflicts that caused border closure. This action breached the EAC Treaty, especially on the security aspect and the free movement of goods and persons.

On the good side, these two countries made tremendous efforts to settle the matter through mediation facilitated by their friend presidents, namely Joao Lourenco of Angola, Denis Sassou Nguesso of Congo-Brazza, and Felix Tshisekedi of DRC[33]. After these failed mediative efforts, direct, amicable, and friendly talks between officials of these two countries successfully resumed diplomatic and business relations. Unquestionably, the economic activities of these two countries rely on cross-border commerce as an essential aspect of the EAC common market was negatively affected.

Tanzania versus Rwanda and Burundi

Tanzanian President’s decisions to expulse what Tanzania considered “illegal immigrants” and “criminals” caused diplomatic tension with the Rwandan government over the conflict in the Democratic Republic of Congo. It was by the Tanzanian presidential order issued on July 25, 2013, to expulse some 35,000 irregular migrants from Rwanda, Burundi, and Uganda to leave Tanzania by August 11, 2013. The main reasons that Tanzania advanced to justify expulsion include the complaints from villagers over acts of armed robbery, bus attacks, and kidnaps attributed to illegal immigrants in the area. The basis of the political tension was that Tanzania expulsed immigrants, fearing that Rwanda might try to destabilize it in retaliation for its decision to send troops to DRC as part of a new UN force seeking to disarm and neutralize the M23 rebel group[34].

Political tension between Rwanda and Burundi

Burundi has its particular period-long political and civil crises and extreme poverty. Since its accession to the EAC, Burundi continues to struggle with poverty, insecurity, and poor governance, unresolved tensions that characterize the pre and post-elections period, and issues of refugees who work to come back to Burundi, to name a few. On another side, political tensions with Rwanda intensified in 2019, causing much worry about the stability of the already fragile Great Lakes Region. However, the attempts to restore relations by the presidents of both countries in 2020 have been fruitful since they agreed to cooperate on border security issues[35].

From these points above, I realize that the Burundian political crisis and tension with Rwanda are sensitive to intra-regional trade within the EAC, especially with repetitive border closures between Rwanda and Burundi and killings of civilians who cross the borders[36]. All EAC member states should pay particular attention to the dynamics of conflict in the Great Lakes Region to help new joiners fully integrate into the EAC, especially as the region has already shown its vulnerability to climate change.

The status of intra-state conflicts and their impact on the region

These conflicts in the EAC region caused loss of human lives, increased numbers of displaced persons, and psycho-social and economic negative impacts on surviving civilians, including increased hatred. The adverse effects of peace and security threats on EAC integration are enormous. It includes extreme human rights abuses, loss of trust among the member states, total failure of regional integration, negative public visibility, and an impediment to the implementation of the EAC treaty. The repetitive border closures have hampered inter-state trade and tourist activities and blocked the free movement of goods and people[37].

Additionally, they destroyed public and private properties leading to an enormous burden on the national economy. The intrastate conflicts had a negative regional impact, affecting the EAC region. While I cannot make a detailed description of each country’s conflict history, I will briefly present the status of the conflicts in these countries and their negative impact on socio-economic development and regional integration in general.

The decades-long conflicts in the Great Lakes region

The Burundian security crises of 2013 and 2015 emanated from a disagreement on election results and respect for the Arusha Agreement. These revolts and conflicts caused the loss of many people’s lives, and others have been displaced. The same happened with the Genocide committed against the Tutsi in Rwanda in 1994. During this Genocide, more than 800,000 people were killed in less than 100 days, causing many others to be displaced. The eastern part of the DRC did not escape this history of conflict and insecurity because, beginning in 1996, violent conflicts involving internal and external armed groups led to the death of more than 6,000,000 persons and forced many more to be displaced[38]. Unsurprisingly, these conflicts result from social identities, such as ethnic polarisation, the politicization of ethnicity, inappropriate representation, too long leadership and domination, insufficient political systems, democratic trends against political systems, inadequate handling of risky changes, and proliferation of conflict into other countries[39].

The Democratic Republic of the Congo’s accession: an economic opportunity or an insecurity extension?

The answer to this question is twofold because DRC’s accession to the EAC benefits the DRC itself and expands the market EAC size. Secondly, it extended the security burden to the region because these conflicts have existed for so long in this country. When joining the EAC, the DRC expected to benefit from customs taxes exemption at any of the region’s border points. The main reason is that most of the DRC’s key markets, such as Bukavu and Goma, are geographically closer to the Kenyan port of Mombasa than the Atlantic Ocean. Therefore, open borders via the EAC could reduce shipping and receiving commerce time. Undoubtedly, this is a massive benefit to a country that needs assistance with infrastructure projects[40].

On the dark side, the DRC’s membership in the EAC brings another set of challenges, including insecurity and acts of violence in the Eastern region of DRC by M23[41]. Therefore, the EAC must double its efforts to integrate DRC and promote peace between its member states to maintain bloc unity. Though member states of the bloc agreed to deploy a regional security force led by Kenya to the Eastern DRC, their productivity is still questionable. Above all, I realize that after two years of DRC’s accession to the EAC, there has not been any significant change in cooperation between DRC and other EAC member states; the tension between DRC and Rwanda increased from allegations of Rwandan support to M23[42]. Therefore, I see new accessions have worsened the security issues instead of being an opportunity for the EAC to focus on the full implementation of the EAC treaty, especially the monetary Union, ensure the performance of the EAC Common Market Protocol, attain an EAC Single Currency, and strengthen regional peace, security, and governance.

The problem of decades-long insecurity and terrorism in Somalia

Somalia presents a particular characteristic; this country has been a victim of social, economic, political, and security problems for so long. Insecurity and terrorism are significant problems that Somalia adds to the EAC’s list of issues[43]. Somalia has been facing and is still facing various social, economic, and political issues. Somalia has been a victim of a drought threatening to cause famine in different areas for so long. Many Somali people have been victims of acute food insecurity and need humanitarian assistance. Additionally, the lack of funds to address the problems of drought, climate change, malnutrition, and famine, is a critical concern[44].

Worse, insecurity resulting from Al-Shabab terrorism cannot allow the government to focus on other socio-economic aspects. Al-Shabab has remained a severe threat to the government and its institutions. Without being cynical, I can realize that the delayed admission of Somalia into the EAC might have resulted from these decades-long problems, but most importantly, its insecurity issue, while the regional standby security forces failed to help the country restore its security[45].

Pre and post-election insecurity in Kenya and Uganda and genocide in South Sudan

Chaotic reactions by citizens in opposition parties characterized the eve of the elections in Kenya. The political crisis led to chaotic economic situations, including the closure of factories, accumulation of delays in supplies, cancellation after cancellation of the tourists’ travel, and even the collapse of the stock market. Unquestionably, these crises caused the country’s impoverishment and the entire region because Kenya is the gateway for supplies to many landlocked countries in East and Central Africa[46]. In other words, this Kenyan political crisis tarnished the country’s image and potentially had short-term and long-term economic consequences for the country and its neighbors.

The conflicting situation in South Sudan has a different story of being repetitive and implying civil war and Genocide. Typically, the first conflict peaked in the 1960s and ended in 1972, but the second one, which began in 1983, lasted for twenty-two years[47]. The AU and the UN have documented part of the violence in South Sudan, labeled it as ethnic cleansing, and have been reluctant to declare it a Genocide. In other words, the international community did not escalate its rhetoric to describe the violence in South Sudan as Genocide[48].

South Sudan, Africa’s youngest country, is still struggling to cope with an economic crisis caused in part by a recent civil war that has affected oil production, a significant income stream for the government of South Sudan, which seceded from Sudan on July 9, 2011. Regrettably, the country has been at risk of expulsion from the EAC because it has been defaulting over membership dues of ten million US dollars after its accession[49].

Addressing the root causes of conflict

The security issues and conflicts in the EAC region have particular features linked with the countries’ pre-colonial racial and social class divisions and the colonial divisionism legacy that prolonged in post-colonial periods. Briefly, these conflicts are mainly connected to the nature and history of the concerned country, and thus, there is a need for purely local mechanisms to deal with them and guarantee peace and security in the region. Undoubtedly, any successful resolution of these conflicts must address their root causes, involve collective efforts and collaboration between the member states, and focus on their vision in the Dar-es-Salaam Declaration on Peace, Security, Democracy, and Development in the Great Lakes Region[50].

One among many possibilities to address the issues of conflicts and profound insecurity that continues to ravage the region is to deal with their root causes because they escalate into complex forms. In other words, there is no single formula to deal with a particular conflict because an apparent conflict has many other connected ones and is story-long for each case. Though it is not easy to dress an exhaustive list of causes of these conflicts, the main reasons for recurring conflicts in EAC member states include economic stagnation and poverty aggravation, mistrust, and suspicion between governments, massive violations of human rights, and other policies of exclusion and marginalization, and gender inequality. Additionally, the list of possible causes includes the use of violence for conquering and conserving power, impunity of crimes of Genocide, crimes against humanity, war crimes, illicit trafficking of small arms and light weapons, a proliferation of armed groups, organized crime, and illegal exploitation of natural resources[51].

Focusing on unity and a democratic approach

More specifically, they should strengthen democratic institutions to emphasize development and sustainable democracy, establish an effective early warning security mechanism, and support domestic programs and activities to promote peace, security, and respect for human rights[52]. These include academic programs, community services, training, and seminars. They should also strengthen inclusive and constructive internal dialogue because an internal exchange facilitates the development of an exit strategy. Finally, they should build greater uniformity of peace and security policy.

Considering the complexity of these conflicts, diplomatic efforts and other conflict resolution attempts failed. These include negotiation, mediation, or coercive diplomacy. As a solution, involving local people and using traditional African experiences can be resourceful for conflict resolutions to achieve the best solutions[53].

For example, the Rwandan traditional Gacaca Courts played an unprecedented role in trying the suspects of Genocide committed against Tutsi in 1994, eradicating the culture of impunity and contributing to unity and reconciliation[54]. Furthermore, all EAC member states should effectively combat this problem of insecurity by cooperation and putting their resources together rather than individual state actions.

Strengthening the diplomatic approach within the region

When political violence in Burundi steadily escalated during 2015 in response to the President’s third term, the African Union mandated the EAC to address that conflict. The Burundian political crisis was the first test of the organization’s ability to ensure its peace and security mandate. I was surprised that internal divisions between EAC member states prevented the organization from mediation in a concerted and determined way, contributing to the mandate’s failure[55].

Member states appear to want to use the EAC framework to keep control of any action to be taken in the region and prevent countries outside the region from interfering, but peace and security evolvement have not been the EAC’s mandate[56].

Maximizing security and collective defense opportunities

As I introduced earlier, peace and security are critical pillars of the EAC Treaty. Even with new accessions, maintaining peace and security is a theoretical commitment among the EAC member states. In the EAC region, there are three most important regional security organizations to note, namely, the East African Community (EAC), the East African Standby Forces (EASF) and the Intergovernmental Authority on Development (IGAD)[57]. Unsurprisingly, even these security organizations are subject to many critiques due to the different challenges they encounter.

First, in the Somali case, many security standby forces failed to restore security in Somalia. These include the African Union (AU) itself, African Standby Force (ASF), Intergovernmental Authority on Development (IGAD) and the Eastern African Standby Force Secretariat (EASFSEC)[58]. In restoring peace in Somalia, Sudan and Uganda were identified as the countries that would deploy troops under the IGAD Peace Mission in Somalia (IGASOM). The other IGAD countries were to assist in providing logistics, equipment, emergency assistance, and training for the Somalia Army and Police[59].

Beforehand, I must signal that EASF relies on funds from member and non-member states. Member states fund the headquarters. Exercises, educational programs, and real-life deployments are funded through friends of EASF; several states are willing to fund and support EASF. It is a severe impediment to the functioning of a standby security force. For the EAC, the main challenge is that it might prove difficult for EAC to act on military security matters within member states[60].

On another side, IGAD missions depend on military capacities from AU nations that are not members of IGAD. According to UN norms, states that border a country in conflict are ineligible to deploy troops into that country[61]. Considering these discussions and challenges above, I will not be cynical to conclude that peace and security have deteriorated since the establishment of the EAC. More specifically, this region does not have a collective defense system to help reinforce security measures.

Empowering the security standby forces

As I emphasized above, the existing security organizations have proven ineffective in ensuring peace and security due to numerous organizational, financial, and technical challenges. For example, the first deployment of the standby force declared full operational capability was a deployment of the East African Standby Forces (EASF) in Burundi in response to the political crisis caused by the President’s third term in 2015. However, it was eventually rejected at the AU level. Even EASF is subject to many critiques. The organization lacks strategic airlift capability and capacity to provision troops, funding issues, and adequate communications equipment that could enable command and control[62].

In that regard, I understand that this organization should have the decision-making power, financial capacity, and autonomous structure to be effective. Nevertheless, contributing countries where these forces are drawn decide whether troops can be deployed[63].

Additionally, several factors contribute to the spread of conflicts within the region. These include weak state institutional capacity in some states that constrain frontier security cooperation, the presence of armed and region-destabilizing hostile forces, mutual suspicions and low levels of trust among states, the multiplicity of structures, and externally driven initiatives[64]. These factors require strengthening the standby force to ensure regional peace and security. In the discussions above, I highlighted the challenges facing the EAC member states in ensuring peace and security. From these descriptions above, I can infer that creating collective defense forces would be a starting point, but having a trained national army and police force and ensuring financial capabilities is a requirement.

Improving the role of the East African Court of Justice in inter-state disputes

The East African Court of Justice (EACJ) plays the crucial role of interpreting the Treaty and other Community laws and ensuring respect for the founding principles of the Community. In that process, the Court tries to improve working relations with Partner States. In its judicial works, the Court hears cases on the rule of law violations. It is one of the fundamental and operational principles of the East African Community Treaty[65]. However, EACJ does not deal with substantive matters of the case but with rules of law. It means that it oversees whether the action followed the rules and procedures provided by the Treaty and domestic laws, while the substantive matters remain under the jurisdiction of domestic courts. Additionally, the EACJ does not have human rights violations jurisdiction. It pushes me to question the real work of this Court in guaranteeing justice to people in the absence of human rights jurisdiction.

Learning from the European Community model on peace and security

The EU emphasized the development of competence in justice, home affairs, the rule of law, and security by establishing and strengthening cooperation of police forces, cooperation between prosecutors, and border control[66]. Since the creation of the European Community until its enlargement to the European Union (EU), security and defense concerns have been of primary importance. In that respect, the Common Foreign and Security Policy (CFSP) became the second pillar of the EU in the Maastricht Treaty to coordinate EU member states’ foreign policies and the European Security and Defense Policy (ESDP) was developed as part of the CFSP[67].

Therefore, the common security and defense policies constitute one of the EU’s intergovernmental pillars, implying that member states are responsible for decision-making and policy output. However, the dark side is that while committed to the purposes of the Union, they follow their national agenda[68]. I understand that the role and influence of the EU in peace and security aimed to strengthen the security and defense capacity (institutional, material, human and operational, and financial), devote resources to security and defense purposes, mainly driven by member states’ priorities, and accept to play an internal and external role as a leading actor in peace and security.

SUMMARY *

The article’s central proposition inverts the assumption on which regional integration projects are ordinarily built. Economic interdependence is expected to generate the political trust from which deeper union follows; the East African record examined here suggests the sequence runs the other way, since a customs union and a common market have not prevented members from closing borders against one another, and the two remaining pillars have stalled not for technical reasons but because monetary and political union require a degree of mutual confidence that repeated bilateral ruptures have consumed. The author’s supporting observation concerns capacity: the Community possesses no integrated framework for conflict prevention, its Court cannot enforce its own judgments, and its standby force has never deployed on its own authority, which means that when disputes arise between members the organisation has nothing to apply to them.

CONCLUSION

The East African Community started with good intentions of forming a customs union, a common market, and a political confederation. However, the reality of the situation is far from the imagined utopia. In this paper, I have demonstrated how effective regional integration in the East African Community is still a distant dream. In this paper, I discussed the negative impact of conflicts within the East African Community (EAC) member states, which undoubtedly affected the ordinary course of economic interdependence, expansion of the free market, and overall development of regional integration as well as its external relations with non-member bordering states. The spread of conflicts in the EAC region from one country to another makes the conflicts complex. Equally, I have proposed a few solutions that can guide the EAC to return to the regular track of regional integration.

Unquestionably, the EU has been a regional integration model for many regional integrations across the globe. Therefore, the EAC should learn policies and strategies for peace and security from the EU but implement them according to the context and realities of the EAC region. In the recent political tensions and conflicts discussed earlier, the EAC member states have been trying to make efforts to create sustainable peace and stability in the region, though their legal tools and competence to deal with existing and possible problems do not lead to the expected results. Efforts were vainly made to resolve these conflicts. The EAC member states should address the root causes of the disputes to reach a sustainable solution instead of the consequences of the conflicts.

Given the EAC’s people-centredness, it is helpful to promote public awareness of emerging issues and galvanize public support instead of relying on the eccentric judgment of a few officials that have proven to be defeating. They must involve and empower local citizens and strengthen amicable and traditional conflict resolution approaches to do so. Furthermore, the regional integration process cannot be separated from internal and external security situations. Therefore, regional integration and development cannot be fully implemented without eradicating all sources of intrastate and interstate conflicts. In that regard, Rwanda has been resourceful in the United Nations and African Union peacekeeping missions in Haiti and South Sudan and currently doing a great job in combatting terrorism in Mozambique. Thus, a sustainable peace and security solution in the EAC region should involve Rwanda, which was excluded from the EAC regional force.

Moreover, the EAC integration should be a reconciliation opportunity between partner states. EAC partner state leaders should grab the chance of summits and other official and unofficial gatherings to resolve any matter that might hamper the EAC integration process, especially the peaceful neighborhood. However, this cannot happen unless all EAC member states join efforts to fight the Genocide and Genocide ideology, neutralize, disarm, arrest, and transfer to relevant local and international tribunals the perpetrators of Genocide, including the forces that committed Genocide against Tutsi in Rwanda in 1994.

Finally, the EAC member states should work excessively towards peace and security in the region by preventing conflicts. They should also adopt common strategies for combating criminal activities, drug trafficking limitation, information exchange facilitation between member states for criminal intelligence, joint operations and patrols, and border and interstate security communication facilities.

POTENTIAL SOLUTION *

The article identifies the right problem and its remedy lies closer to hand than the proposals suggest. What the Community lacks is not additional instruments but the willingness to use those it has, and the difference matters because building new machinery is slow while activating existing machinery is not.

The Court is the clearest instance. The article notes correctly that its judgments depend on national execution and that it has no human rights jurisdiction, yet it also has something unusual: a member state may bring another before it without that state’s consent, and there is no requirement to exhaust domestic remedies. Every border closure described here was a prima facie breach of the Common Market Protocol, and none was litigated. The reason is political rather than legal, since states are reluctant to sue neighbours, but the consequence is that a Treaty obligation with a functioning forum operates as if it had neither. Reforms worth pursuing are correspondingly modest: extending jurisdiction to human rights matters, which the Treaty already envisages, and establishing an enforcement mechanism so that non compliance carries a defined consequence.

The deeper structural point concerns what the Community is asked to do when its own members quarrel. A body composed of the parties cannot mediate between them, which is why the Burundi mandate failed and why the Rwanda and Uganda tensions were addressed by presidents from outside the bloc. Rather than treating this as a deficiency to be corrected, the Community could institutionalise it: a standing panel of eminent persons from outside the region, or a permanent conciliation mechanism activated automatically when a member closes a border or restricts trade against another, would supply the neutrality the Secretariat structurally cannot. What defeats such disputes is not the absence of goodwill but the absence of any procedure that operates without both parties agreeing to it.

The comparison with the European experience is apt and its lesson is often misread. The European Coal and Steel Community was not built on trust between France and Germany; it was designed to make a particular kind of conflict materially impossible by placing the means of waging it under joint authority. The transferable principle is functional interdependence in specific sectors rather than declarations of common purpose, and its East African equivalents are identifiable: joint management of shared water resources, integrated power pools, cooperative border administration and joint customs revenue. Each creates a cost to rupture that a communiqué does not.

Two elements of the article’s own proposals deserve development. Traditional mechanisms are rightly commended, and their transposition requires care: Gacaca operated within a single society under state authority, and adapting community based approaches to disputes between states means asking what functional equivalent exists at that level, which is likely to be elders, religious authorities and cross border communities rather than a tribunal. And the article’s closing recommendations touch matters on which the parties themselves disagree, including the composition of the regional force and the characterisation of armed groups. Those are precisely the questions a neutral mechanism exists to determine, which is an argument for building one rather than for settling them in advance.

Finally, the article’s people centred observation deserves more weight than it receives. Cross border traders, transporters and communities bear the cost of every closure and have no voice in any of the decisions described here. Their inclusion is not merely equitable; it creates a domestic constituency for integration that presently exists only among officials, and it is the element most conspicuously missing from a project that has now been managed from the top for more than two decades.

* Added by the WMO Editorial Team

REFERENCES

[Bibliography and footnotes 1 to 68 as in the original manuscript]

Supplementary references added by the WMO Editorial Team

Treaty for the Establishment of the East African Community, 1999, Articles 5, 6, 7, 23 to 47, 71 and 123 to 125.

Protocol on the Establishment of the East African Community Common Market, 2009, and the Protocol on the Establishment of the East African Monetary Union, 2013.

East African Court of Justice, Attorney General of Rwanda v Plaxeda Rugumba, Appeal No. 1 of 2012, and East African Law Society v Secretary General of the EAC, 2016.

Protocol on Peace and Security, East African Community, 2013.

Treaty on European Union (Maastricht), 1992, and the Treaty of Lisbon, 2007, provisions on the Common Foreign and Security Policy.

Haas, E. B. (1958). The Uniting of Europe: Political, Social and Economic Forces 1950 to 1957. Stanford University Press, Stanford.

Söderbaum, F. (2016). Rethinking Regionalism. Palgrave Macmillan, London.

International Crisis Group, Africa reports on the Great Lakes region and on the East African Community, Brussels and Nairobi.

The perceptions and challenges of a holistic aspect of mediation for effective conflict resolution

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

EDITORIAL NOTE *

The author of this article works at the United Nations High Commissioner for Refugees and states that the views expressed here are not a reflection of the official position, past, present or future, of the United Nations or of UNHCR.

ABSTRACT

Conflict is a social phenomenon that lives in and around people in a given society. Since conflict is an inevitable social component, it is necessary to adopt a practical mediation approach to manage it. In that sense, effective mechanisms address the conflicting situation holistically and provide sustainable solutions.

A mediator can serve as a communication liaison between the disputants throughout the mediation process, thereby facilitating a settlement. Undoubtedly, the flexible process in mediation allows the generation of innovative settlements that are not possible in other disputes resolutions mechanisms that can only provide solutions to the issues without considering the root causes or the long-term effects of such solutions.

However, considering the dynamics of conflicts and factors that manipulate the mediation process, I argue that mediation loses its nature, leading to unsuccessful and ineffective results. Therefore, it should go beyond that work and emphasize the holistic aspect of conflict resolution and reaching peace agreements. Against this background, this paper will discuss how the misperceptions of the conflict are a missed opportunity in the mediation process and outcome. It refers to how disputants and other actors miss opportunities to learn, grow, and improve the relationships by only considering the conflict a threat. Furthermore, this paper discusses the challenges related to the conflicting parties in the conduct and success of a mediation process. Their lack of sufficient consent, total commitment, identification issues, and misperceptions about diversity jeopardize the mediation process and the outcome. The mediation actors should be the catalysts of a successful mediation process by adequately undertaking the mediation initiatives at a suitable time. When the mediation actors fail effectively and inclusively to prepare the process, it will likely fail in the negotiations phase. Finally, it discusses the right path to making an implementable peace agreement and preventing conflict reoccurrence.

KEYWORDS *

Holistic mediation, conflict transformation, ripeness, mutually hurting stalemate, diversity, structural violence, consent, spoilers, women in peacebuilding, peace agreement implementation, social healing, impunity

INTRODUCTION

Mediation is a various attempt as conflict is by itself. When applying a mediation process in conflict resolution, some people can be creative in resolving the conflict beyond the sets of rules and structures, while others need rules and structures to guide them through dealing with the conflict. However, to achieve that goal, people should consider the conflict part of the life cycle and commit to addressing it positively. Otherwise, the misperception of a conflict as necessarily an adverse event and lack of clear goals to resolve it will jeopardize the process and the conflict resolution outcome.

MAIN CORPUS

Misperception of conflict

Conflicts are a fact of life; they reveal issues by helping attitudes, behavior, and relationships change[1]. People have different desires, perceptions, backgrounds, ambitions, likes, and dislikes in any given society. These are sources of misunderstanding and conflicts, whether intrapersonal or interpersonal. Therefore, conflict results from social change and interaction between groups.

When analyzing the nature of conflict in a society, it is crucial to consider seven competing conflict approaches. According to these seven competing approaches, conflict is innate in social animals; the nature of societies generates it and how they are structured, functional in social systems, and necessary for social development. Moreover, conflict is an inevitable feature of competing state interests in conditions of international anarchy, resulting from misperception, miscalculation, poor communication, and a natural process common to all societies[2].

These seven descriptions above explain the nature of conflict in society; what turns it into a violent phenomenon is the inadequacy of the actors’ methods in regulating human relationships in the family, community, and the state. I echo the view of Freud that every man must find out for himself in what particular fashion he can be saved, and in trying to be saved, some have become rebels, criminals, and pirates, while others have become peace activists or refugees[3].

A conflict is naturally societal, but some factors can contribute to its occurrence or escalation. In this context, a conflict will mainly ensue in response to incompatibility between actors and their basic human needs, and violence is seen as more natural than peace due to scarcity[4].

Another side of the conflict: changing the conflict view

Though conflict is understood and perceived as a negative phenomenon and sometimes even synonymous with violence, one cannot ignore its psychological and material benefits. The optimistic view of the conflict is that it is the engine behind historical change and development. Thus, conflict is a creative and necessary means of social change[5]. However, many actors tend to divert the benefits of conflicts to more destructive and abusive advantages. These include several possibilities for the greedy to enrich themselves from chaotic situations.

The list may include arms dealers, smugglers, illegal miners, poachers, pirates, some businesses, and military leaders who do well out of war[6]. With this tendency, conflict is undoubtedly a harmful and destructive phenomenon to fight. On the contrary, the optimistic view of conflict considers it a regular and continuous dynamic within human relationships[7].

This positive aspect of the conflict guides us to take the conflict as an opportunity for personal development and social evolution, generating opportunities to learn from past mistakes, adapt to diversities and differences, and use these differences for mutual growth and benefits. It requires an optimistic approach to understanding conflict’s positive potential in all situations of discord[8].

In doing so, one must understand the three aspects of conflict mapping: people, problem, and process. Finally, though violence is likely to follow many conflict scenarios and may seem necessary to respond to social frustrations, it is not considered inevitable nor a positive dimension of human interaction. With this in mind, community members should improve their knowledge of the conflict, conflict transformation, and conflict resolution to effectively address the sources of conflict.

Conflict transformation requires the willingness of interveners

For effective and sustainable conflict resolution, it is essential to make the peacebuilding initiatives most fruitful to lower the possibility of conflict reoccurrence. In order to do so, it is vital to incorporate a transformational approach when considering possible options for a conflict at any stage[9].

The envision and respond approach by John Paul Lederach makes the head the conceptual view of the conflict, or the way we think and prepare to approach conflict. This transformational approach is built upon the understanding that conflict can be envisioned positively in such a way that it may create space for constructive growth but needs the willingness to act and the capacity to maximize this opportunity to create constructive change effectively[10]. In this view, for conflict to have the most potential to create positive growth, it needs to address even the slightest visible incompatible dimensions of relationships instead of just the most immediately recognizable aspects[11].

In that trend, positive conflict transformation requires us to remember that various dimensions are interrelated when striving to address conflict in a way that directly reduces the present violence while simultaneously ensuring an increase in justice, equality, and mutual respect in human relationships.

Conflict transformation requires addressing root causes

An understanding of conflict transformational approach requires developing a well-rounded understanding of the sources of conflict that may lead to the emergence of violence to create a strategy to address these grievances adequately. Individual personalities, social processes, systems and institutions, historical coincidences, and local and global forces all shape the conflicts’ goals, dynamics, and consequences. In addition, the increase in international competition creates tensions between different groups in one society[12].

Usually, conflict resolution and peacebuilding should be long-term endeavors structured to promote sustainable peace by the state by identifying and addressing root causes or sources of conflict. It is critical to remember that the root causes will not always be one or another. In most cases, there is a higher likelihood of concurring elements present when violence breaks out. Therefore, it is crucial to adopt a strategic plan of action that addresses the unique causes of conflict to avoid using a redundant and potentially harmful set of development efforts. These may be external or international, characteristics of the state, characteristics of society, or individual orientations[13].

Diversity as a fundamental component of the conflict

As I introduced earlier, conflict is an outgrowth of the diversity that characterizes people’s thoughts, attitudes, beliefs, perceptions, social systems, and structures. Further, it is part of people’s existence as evolution is[14].

No society can claim to be homogenous; that is, diversity is inevitable. It can be cultural, ethnic, religious, political, family background, or economic class, to name a few. Diversity itself is not an issue; what makes it a cause of conflict is when one aspect of diversity becomes more substantial and more enduring than other collective identities, and therefore, it is most likely to provide the basis for political mobilization and conflict when it provides the basis for invidious distinctions among peoples. These distinctions are deliberately maintained through public policy and social practice with political mobilization[15]. It becomes worse when economic inequalities are politicized, and certain groups are marginalized or denied access to resources.

Another important aspect is the case of structural violence which consists of social injustice representing the systematic ways in which inequality or injustice is tied into the structure of a society. It includes instances where some portion of the public is denied equal access to opportunities, goods, or services that may make it difficult to fulfill basic human needs. This situation becomes worse with cultural violence that extends from generation to generation. Cultural violence becomes a foundational principle for extended conflict because of its ability to be reproduced across generations, further creating the argument that these beliefs are rational and absolute[16].

Diversity should be an asset for conflict resolution

In a holistic mediation process, diversity becomes a precious asset that helps to open up possibilities and challenge actors and interveners to consider alternatives. Optimistic mediation actors and interveners celebrate diversity instead of fearing it or perceiving it as a threat[17]. More importantly, the conflict originates from diverse perceptions, needs, values, power, desires, goals, opinions, and many other components of human interactions. Therefore, these differences should serve in conflict resolution by clarifying the understanding of relationships, considering ideas and possibilities, and finding commonalities between relationships[18].

More importantly, cultural diversity is a vital aspect of conflict existence. Culture and conflict are indissociable; the way conflict is perceived and influenced, culture identifies itself inevitably[19]. An effective conflict resolution process should consider diversity as an asset instead of a threat. For example, a workplace rich in diversity has the potential for exceptional creativity and productivity in an organization, success, and competitive advantage. It is almost impossible for people with diverse backgrounds, skills, and norms to work together, make decisions, and meet the project goals and objectives without conflict.

However, in order to make diversity an asset and fruitful in a holistic mediation, it is vital to acknowledge, understand, accept, value, and celebrate differences among people concerning age, class, ethnicity, gender, physical and mental ability, race, sexual orientation, spiritual practice, and public assistance status. The mediator should learn and familiarize herself with all these to ensure effective communication and avoid unintentional damage[20]. Despite this consideration, I cannot ignore that managing diversity is a challenge because it requires recognizing the value of differences, combating discrimination, and promoting inclusiveness. However, once the conflict resolution actors reach this goal, they can fruitfully use the aspects of diversity mentioned above to creatively address the issue, generate innovative options, and reach a sustainable solution.

Potential approaches to mediation and their impact on real-life conflicts

There is no single formula by which people can manage their behaviors regarding conflicts. Often, people do not know how they react to conflict and communicate with others, yet these are essential building stones to address the underlying conflict issues and respond appropriately in a specific situation and cultural context[21]. As I discussed earlier, one of the unique traits of a mediation process is its principles of negotiation that consists of separating the people over the problem (relationship problem versus substantive problem), focusing on interests, not positions, generating a variety of possibilities before making a decision, and basing the results on some objective standard.

The requirement of the parties’ sufficient consent and willingness to cooperate

The conflict parties are the central actors of the conflict and conflict resolution process; they own the case and should be the source of conflict resolution. However, they are not free of critique regarding the conduct and success of a mediation process. This critique is based on the challenges related to the parties’ consent to accept the mediation attempts, external influence, identification of the parties for negotiation and their constituencies, questionable involvement of the negotiators, and the parties’ internal organization.

The parties’ consent and willingness to address the conflict are the foundational elements to addressing the conflict and accepting the assistance of a mediator. That is to say; parties believe that a dispute resolution process that a third party facilitates may help them produce a more favorable settlement to the conflict than would otherwise be possible[22].

However, many factors may affect the parties’ free consent and willingness to cooperate. These include the parties’ strategic and tactical considerations, leverage, and level of intensity. When making significant concessions, the parties may strategically accept a third-party intervention as a face-saving device to protect their domestic and international reputation. They may also consider mediation an occasion for improving relations between the mediator and the adversary[23].

Firstly, leverage consists of the mediator’s ability to pressure one or both conflicting parties to accept a proposed settlement. Regarding the parties’ sufficient consent and willingness to cooperate, this leverage implies that the mediator has power and influence resources that can attract the parties and increase their confidence in negotiations. These resources include adverse versus positive sanctions and material versus immaterial aspects[24]. Accordingly, I understand that the parties’ consent and willingness to cooperate must be free; leverage is a form of pressure on the parties and is indispensable for persuading conflicting parties to make concessions or ensuring disputants adhere to agreements[25]. I echo the view of Kleiboer that the long-run implications of high compensations may make the parties entirely dependent upon the mediator for further compensation in later negotiations[26].

Additionally, the level of intensity is another factor impacting the sufficiency of parties’ consent and willingness to mediate. Unavoidably, the degree of threat intensity, the magnitude of violence, and the number of fatalities affect the mediation process and the outcome. It means that the extraordinary intensity increases the parties’ polarized positions, which results in a greater inclination to reject any mediation effort and try to win the conflict at all costs[27].

Given the conflict dynamics and external players’ possible actions, it is difficult to determine the parties’ free and sufficient consent exhaustively. In other cases, parties may agree to the mediation by limiting their consent to discussions of some specific issues before accepting a more comprehensive process[28].

The challenge of identification of the negotiators

The effectiveness and success of any mediation efforts must also stick to the actual negotiating parties; that is, mediation can only be possible if the parties in conflict are identifiable regarding group characteristics and boundaries[29]. The parties’ identification is a fundamental problem to address because, in some cases of unscheduled political violence like riots or civil, it is sometimes difficult to identify the party to participate in the negotiations. Other cases may happen when the parties are unwilling to identify and grant recognition to the other group as a legitimate participant whose needs, interests, and values they have to take seriously, though it might be straightforward for an outsider to know who the disputants are[30].

Additionally, a clear identity of a party as a requirement for the success of a mediation outcome implies the stability of the parties’ internal power structure. There is a need to have clear leaders or representatives who can authoritatively negotiate and secure the implementation of an agreement[31]. Addressing the issue of parties’ identity evokes an emphasis on cohesiveness that consists of constituencies and representation. I have stressed earlier that a successful mediation process must go beyond the traditional target of conflict resolution that limits itself to settling but should holistically address all other aspects connected to the issue.

Regarding the role of negotiators in the success of mediation, a holistic approach requires the negotiation and mediation to occur not only among the adversary parties but also among factions within the parties themselves[32]. Barbara F. Walter observes that sometimes when no legitimate government and no legal institutions exist to enforce a contract, they are asked to demobilize, disarm, and disengage their military forces and prepare for peace. Nevertheless, once they lay down their weapons and integrate their separate assets into a new state (united), it becomes almost impossible to enforce future cooperation or survive an attack[33].

Ultimately, negotiations fail because civil war adversaries cannot credibly promise to abide by such dangerous terms. Only when an outside enforcer guarantees the terms do commitments to disarm and share political power become believable. Only then does cooperation become possible[34].

The negotiation challenges and external influence

In addition to the parties’ sufficient consent, the mediator must foster the sincere commitment of the conflict parties and other concerned stakeholders in the mediation process. The mediator must remember that various circumstances can affect every case and thus prepare accordingly.

Parties may feel it is in their best interest to do so, but many reasons make them reluctant to negotiate, though they are generally willing to find a joint solution. These include great fears, significant difficulties in communication, tension, emotions, frustrations, and fixed perceptions about opposing parties. The mediation process cannot succeed if it does not address the issues of power imbalance and manipulation by externals and significantly improve the parties’ negotiation capacities[35]. In that regard, a mediator must know that pursuing negotiations does not necessarily imply that a party sincerely wants to reach negotiated solutions but has the capacity and skills to do so.

The power imbalance and disparity between the parties significantly threaten the mediation process. When there is an extreme disparity, the stronger party feels the level of victory, while the weaker party feels humiliated (example of Iraq v Iran); negotiations cannot happen in such a situation[36]. It is sometimes helpful to train subgroups and movements to improve the negotiation capacity and skills, especially in power sharing and negotiations.

Equally, the mediator must remember that the participants in negotiations are usually not the only ones involved in making the final decision; the value of the constituencies that the participants represent in negotiations should not be ignored. These constituencies must be able to contribute to negotiations and be informed about the changes or options developed during negotiations. In addition, they must be informed about the possible solutions or agreements in the negotiation process. In that trend, the final proposed agreement that reaches them should not surprise them. In order to achieve this goal, they must understand the negotiation process, the issues at hand, interests, and expectations[37].

Finally, I must emphasize that promoting the parties’ negotiation capacity and skills includes assisting them in constructively expressing their emotions and legitimizing them. In doing so, parties can improve the quality and quantity of their communication and build trust and a positive perception of one another. The mediator should equip the primary parties and constituencies with these capacities and skills.

The mediation actors as the catalysts of a successful mediation process

Conflict is a situation in which there is an incompatibility between actors and their basic human needs. Violence, in this regard, is not seen as desirable, with repercussions that will outweigh its benefits and leave long-term consequences for the parties directly and indirectly involved. Through conflict transformation as an essential part of the mediation process, by addressing the grievances within a society, the mediation actors can directly address scarcity frustrations and reduce the potential of violence[38].

So far, conflict transformation, holistic conflict approaches, mediation, and peacebuilding efforts can be utilized to address the root causes of incompatibility, allowing for conflict to serve as a mechanism to enable positive change. In this sense, peacebuilding can promote ongoing constructive dialogue that emphasizes the inclusion of actors at all levels.

When (not) to mediate?

Timing is a crucial but complex element in mediation and conflict resolution. It is worth noting that not all ripe moments are so seized and turned into negotiations. Hence, it is primordial to emphasize the aspect of ripeness to determine when conflicting or third parties can fruitfully initiate negotiations.

In order to determine the ripe moments for negotiations, it is necessary to consider its objective and subjective elements. Subjective elements include expressions of pain, impasse, and inability to bear the cost of further escalation. Objective elements may include the numbers and nature of casualties, material costs, or expressions of a sense of a Way Out[39].

However, I still argue that these factors and elements are not automatic in determining the exact ripe moment for negotiations. For example, one cannot base on a certain number of casualties nor exhaustively determine the nature of pain suffered to determine the ripeness of negotiations. Another situation happens for the party’s resistance to mediation and reliance on military solutions. If this is the case, the conflict party reinforces the conclusion that mediation is bound to fail because one or both parties rely on achieving a decisive military victory[40].

Conflict ripeness and parties’ resistance to negotiate

The hurting stalemate becomes complex when extreme pain increases resistance rather than reducing it. As discussed earlier, it is worth recalling that while ripeness is a necessary precondition for negotiation, not all ripeness leads to negotiation. However, failing to negotiate as early as possible imposes more pain[41].

Other times, pressure on a party in conflict often leads to the psychological reaction of worsening the opponent’s image, a natural tendency that is often decried as lessening chances of reconciliation but has the functional advantage of justifying resistance. I can infer that the more pain increase, the fewer negotiations are likely to happen because pain is likely to justify renewed struggle. It means that justified struggles call for more incredible sacrifices, which absorb increased pain and strengthen determination.

I echo Zartman’s views that conflicts not treated early require many negotiation efforts to succeed. Therefore, it is critical to raise the level of conflict until reaching a stalemate to ripen for resolution at least those conflicts that have not been managed early, which in return start to hurt, ensure the perception of pain, and finally, create the perception of an impending catastrophe as well[42].

Lack of precise determination of the mediation process ripeness

Though a conflict may be ripe for negotiations and the negotiations opened, I still raise concerns about how long the negotiations should take (ripeness of the process). It means that opening the negotiations is one step in a long journey because reaching successful negotiations once they are opened is another critical phase. In this regard, there is an interrogation as to whether ripeness can be extended to cover the entire process or if the successful conclusion of negotiations requires a different explanatory logic[43].

Nevertheless, unripeness should not constitute an excuse for either party’s inaction, even if one or both conflicting parties are not hopeful of escalation and victory. In other words, the absence of ripeness does not mean walking away and doing nothing. Instead, it should be an occasion to identify obstacles and suggests ways of handling them and managing the problem until resolution becomes possible.

The manipulative approach of a mediator as a persuasive option in the absence of conflict ripeness

If there is no objective indicator that can serve as a reference when determining ripeness, it may involve an active engagement of the mediator. This involvement may include moving her role from communication and formulation to manipulation. When a mediator becomes a manipulator, she attracts the parties to share or limits the parties’ actions in the conflict, providing objective elements for the stalemate[44].

How can a mediator resist political influence and keep the process in control?

Typically, mediators create an environment to facilitate exchange between the parties and develop a solution to a problem. While a mediator must understand how to navigate interpersonal situations frequently involving personal emotions, she must remain ethical in addressing potential inequalities and discrimination issues between parties. Now the concern and one of the roadblocks to effective mediation is how the mediator can resist any political influence and keep the cadence of the process.

Mainly, this concern relates to how this external influence may jeopardize her capacity to remain impartial toward all disputing parties by not allowing their personal views and biases to intervene in the mediation process. When a mediator cannot remain neutral, she must reveal any direct or indirect connections with the disputing parties[45]. Again, this requirement of revealing any connection with the parties complicates the concern; can a mediator simultaneously reveal any political influence?

An improved role of women in the mediation process and conflict resolution

Women are the first victims of conflict and post-conflict situations; they know the reality of the conflict and the exact need to address these effects and prevent subsequent reoccurrence. Additionally and worse, there is still critique against the lack of protective international legal frameworks for women in armed conflicts[46]. More importantly, due to some cultures, the victims of sexual abuse and rape do not witness easily; thus, the authors of rape crimes are not adequately tried. In that sense, the core of the critique against international legal frameworks is that even the existing rules are not adequately implemented. According to these issues facing women in armed conflicts, there is a solid need to actively and effectively involve them in any conflict prevention and resolution efforts.

A holistic and inclusive mediation and conflict resolution process must applaud the role of women. There is a need to change the misperception about women in negotiation and conflict resolution because they cannot simply follow the traditional approaches to mediation. Women possess unique strategies related to coaching, framing communication positively, and self-reflection[47]. In that sense, mediation actors must modify their conflict resolution techniques to overcome various barriers arising from culture and gender stereotypes[48].

Though there may be views that a person’s gender has a differential impact on her negotiation style, insofar as gender norms in society may inform or be informed by specific bargaining behaviors, the role of women in negotiations should not go unnoticed. Mediation values emotions; women usually demonstrate more empathy than men while negotiating by showing how they understand someone’s feelings and backgrounds, even when they disagree with their point of view[49].

The women’s natural inclination to spend more time thinking about the impact on relationships and connections is another opportunity to grab in the negotiation and mediation process. It means that women spend more time thinking about problems and processes before arriving at a solution; this is a cornerstone in mediation[50]. These discussions reveal the necessity of active inclusion of women in negotiation, mediation, and peacebuilding, not only because of their negotiation nature but also because of their particular suffering during periods of conflict. In order to achieve a holistically improved mediation process, there is a need to increase women’s participation in conflict resolution at decision-making levels and promote women as actors and protagonists rather than a vulnerable group[51]. Finally, these efforts must focus on strengthening the women’s capacity to participate in peacebuilding initiatives in a meaningful fashion by involving initiatives or components that directly target women.

Failing to lay the stonewall for fruitful negotiations

Firstly, it is essential to acknowledge that there is no one formula to apply to all conflict scenarios because each conflict has its particularities, but there are ethical and strategic standards to follow. Effective mediation requires the mediators should spend their precious time preparing before the mediation as they spend within mediation. In that sense, a pre-mediation process’s design and preparation should include substantive, emotional, attitudinal, and cooperative steps to help shift the parties’ attitudes from being ready to fight to being prepared to cooperate[52].

A holistic mediation process should strategically address emotional challenges

Emotions have a non-negligible value in conflict situations and resolution; they translate the wound/shock of the victims. Additionally, emotions reveal who we are and what the conflict made us. In other words, substantive and emotional components of a conflict are indissociable. Emotions are a non-negligible factor in conflict existence and conflict resolution. One aspect that makes the mediation process unique in conflict resolution is the moving part of the parties. A successful mediation endeavor must transform the intense feelings that keep both parties locked in antagonistic interdependence. Emotions such as fear, anger, and grief are the powerful forces driving most conflicts[53].

However, the main challenge leading to the failure of mediation efforts is the inability to transition from negative emotional moments into positive and constructive communications, especially in ongoing insecurity. In light of this, a holistic mediation process should make these emotional components a foundation for success. One of the strategies for a mediator to address this challenge is to learn each party’s communication style, identify specific strengths that may directly assist in the mediation-dialogue process, and encourage the expression of those strengths in mediation.

Expressing the feelings related to the conflict is vital to a humanistic mediation approach. With the extreme intensity of those feelings, the mediator coaches the disputant on helpful ways of communicating those feelings so that the other party can hear them; it is helpful to do it in separate premeditation sessions. Coaching one or both parties on communicating intense and potentially hurtful feelings may be required. This coaching focuses on how to own one’s feelings rather than projecting them upon the other party. Projecting intense feelings through aggressive communication often will trigger defensiveness in one or both parties and shut down honest dialogue[54].

The issue of time reasonableness for case negotiation

Timing is essential when discussing a holistic aspect and the success of a mediation process. However, a reasonable time for negotiations can be a topic of debate. Considering the conflict dynamics and chaotic results that the conflicts generate, I cannot hesitate to note that negotiations are difficult, if not impossible, if the mediation attempts are undertaken too late. Therefore, time reasonableness is relative since every conflict is unique.

However, considering that disputes resolution is a mutual attempt, the conflicting parties may resolve their conflict only when they feel ready to do so; that is to say, when they do not consider the cost of war as beneficial or, in other words, when they reach a mutually hurting stalemate (MHS)[55]. In this sense, ripeness refers to elements necessary to indicate that the negotiations can be initiated productively[56].

Emergency cases require emergency actions

As I emphasized above, time for mediation intervention is essential for the success or failure of mediation and peace agreements. Therefore, I argue that when the actors undertake the mediation initiatives when the conflict has become intense, they create other complications to the process and the outcome.

In many instances, facts signal that the situation is becoming chaotic, but the concerned actors do not react as early as needed. In that sphere, I argue that a mutually hurting stalemate should not be the basis for deciding on necessary mediation intervention. Though parties have the capacity and mandate to accept a mediation process, considering the situation’s urgency, it is beneficial to have outside solid actors who can influence the process and save the situation because their passive role worsens the conflict[57].

Worse, the mediator reacts too late without considering that the timing of proposals is critical. In that sense, proposals should be prepared in consultation with the parties before the situation becomes intense. When it is done too late and sometimes rejected by the negotiators, the situation worsens. Additionally, it is crucial to strategically involve key influencers because no actor can do it alone; the power of different actors is helpful. However, the mediator must be cautious about other actors’ involvement because if multilateral actors’ mediation efforts are not well coordinated, their intervention work becomes a competition. Therefore, in some instances, the resolutions are weighty and challenging to implement because they lack well-defined peacebuilding strategies and development plans[58].

Addressing the issues of time limits versus societal needs

Ending the conflict is a dynamic procedure that includes more than just the signing of a peace agreement, mainly if the root causes of the initial conflict are not addressed promptly[59]. The immediate time following the end of violent conflict is essential in establishing priority actions. These include basic security, confidence-building measures, strengthening national capacity, refugee repatriation, establishing the foundations of a functioning state, initiating reconciliation and societal integration, and commencing economic recovery[60]. In this context, timing is critical because the population will likely have high emotions and low trust right after the conflict. In these cases, they can expect change, which, if not met, creates a possibility for relapse[61].

A practical and sustainable mediation process prevents conflict escalation

Typically, conflict parties and other interveners in a peace process should not consider the mediation process as the last option after all else fails. Therefore, conflict ripeness and the parties’ consent to mediate are necessary but insufficient to initiate negotiations. Considering the conflict intensity and emergency, a mediator should even persuade parties to do so to avoid conflict escalation.

Additionally, when unilateral means of achieving a satisfactory result are blocked, and they feel they are in an uncomfortable and costly predicament, parties may need to resolve the conflict. When they fail to do so, while the situation becomes intense, mediation becomes a form of domination or a tool used by some powerful states to prevent changes in the structure of an international system that some forms of conflict might enable[62].

Considering the effects of violent conflicts and in a bid to protect the lives of the population, I contend with practitioners who consider that specific mediation initiatives are not advisable because the conflict is not yet ripe[63]. The catastrophe calls for emergency intervention and provides a deadline or a lesson indicating that pain can increase if something is not done as soon as possible[64].

Is every peace agreement implementable and an effective solution to the issue?

I cannot claim to answer whether every peace agreement is implementable and an effective solution to the issue. A peace agreement may have been effectively and objectively reached, but it is possible to realize the gaps between the peace agreement and realities on the ground. Therefore, reaching a peace agreement is a critical milestone in the long significant journey; that is to say, a peace agreement is not the end of the process nor the final solution to the issue.

The reason is that there are numerous challenges related to the implementation of a peace process, and sometimes, other conflicts arise from the agreement or in connection with the implementation of the agreement. In that context, a holistic mediation approach does not seek to reach an agreement only; it goes the extra mile and anticipates these roadblocks that will hinder its implementation. The question of how to sustain the agreement and implement it, the implementors’ capacity, financial implications, external factors, and the timing for implementation become paramount to a holistic and effective mediation.

Strategic and objective involvement of external actors in a peace agreement implementation

External support is essential during the negotiation and implementation of a peace agreement. Sometimes, it can be a condition for participation because negotiators get assurance that they have enough support to implement the concessions they make during the negotiations[65]. Therefore, they will not be reluctant to make some highly demanding concessions. This support includes technical, financial, expertise, and security, to name a few.

However, one must balance the expected support and its effects, including the dependence on external support and external actors that can affect the impartiality of the process or hinder the mediation outcome. In other words, the role of outsiders should be to enhance the effectiveness of insiders and ensure that the insiders are the primary vehicles for change[66]. Spoilers are problematic in any mediation process because they try to derail a peace process or peace agreement. It can be through violent means, by attempting to discredit the peace process, or by putting obstacles in its implementation[67].

In order to make external support fruitful in the implementation stage of a peace agreement, it is vital to reach a practical, implementable, sustainable peace agreement and one that deals with the root causes of the conflict. Though negotiators can reach a peace agreement effectively, if there is no considerable degree of the political commitment of conflict parties and ownership of the population, it may not fully and effectively produce the desired results. In that sense, ownership of a peace agreement by different concerned levels, the inclusion of different levels of the stakeholders, and its effectiveness in addressing the root causes of the conflict are primordial[68].

Reoccurrence of conflict after signing a peace agreement

Though one of the main goals when implementing peacebuilding initiatives is to avoid the reoccurrence of violent conflict, it is unfortunate that relapse increases in some circumstances. In order to prevent this relapse, it is essential to approach peacebuilding holistically as a method to utilize conflict as an opportunity for positive change. There is a need to see how a past conflict relates to the present grievances and expand on how peacebuilding can stimulate positive growth by identifying potential relapse triggers.

Undoubtedly, the reoccurrence of violent conflict can be triggered by past conflicts only if met with political or economic incentives to take arms. Through this perspective, there are several factors to consider when evaluating the reoccurrence of violence, some of which are. These factors include the demands of the rebel groups, remaining combat weariness, length of the conflict, cost of conflict, the reconciliation of main grievances, the geographic distribution of the combatants, and the mechanisms that influence the end of the original conflict.

The negotiating parties’ failure to clarify their expectations and outcomes

A practical and sustainable peace agreement should objectively and strategically address the root causes of the current issue(s) and adopt preventive measures for the future. In that sense, the negotiating parties must be astray from the principle of competition and adopt principled negotiations, which set the standards to achieve that goal[72]. This approach requires the mediation actors to separate the people over the problem, focus on interests, not positions, generate various possibilities before deciding what to do, and insist that the result originates from some objective standards. If the mediation actors fail to follow this approach, the negotiation outcome will cause subsequent issues.

In that sense, an effective and sustainable peace process should prevent conflict resurgence and create the conditions for a stable peace. Moreover, there is a need to repair the damage, including security, political, economic, social, and psychological spheres, and contain essential elements ensuring that violent conflict does not recur[73].

From these considerations, it follows that the approach to resolving the disputes arising from the implementation of a peace agreement is vital because if the agreement itself turns into disputes that are not immediately resolved, these disputes can worsen the conflicting situation. If an agreement cannot be reached on other sensitive issues, the mediator must help the conflict parties and other stakeholders build into the agreement options or mechanisms for these issues to be addressed later[74].

Striving to achieve the goal of conflict healing

Typically, the conflict actions carry out the processes in the psychological and emotional spheres of the parties in the conflict. When resolving conflicts, actors need to go the extra mile by moving beyond conflict healing to the goal of conflict healing. The path of conflict healing consists of applying the rules and structures to deal with the conflict. Social healing is needed; that is, accountability, repair, healing, and reconciliation.

When addressing the social and psychological conflict effects, mediation differs significantly from other methods of conflict resolution. Therefore, mediation in social healing involves creating socio-psychological conditions that reduce emotional tension, adopt constructive decisions, and generally resolve conflicts[75]. In the social healing process, mediation can play a vital role in promoting a culture of constructive behavior in a conflict based on the recognition of the value of human life, the uniqueness of each individual, the acceptance and respect for the right of each person to satisfy their own needs and to defend their interests without harming others[76].

From conflict resolution to humanistic endeavors

Although some conflicts require a primary focus on reaching an acceptable settlement when emotional feelings about the past are not allowed to be expressed and heard healthily, actors may reach an agreement, but the underlying emotional conflict remains[77]. Little healing of the emotional wound is necessary through genuine dialogue, empowerment, and recognizing each other’s humanity despite the conflict.

The potential effective conflict resolution should promote the healing of community relationships rather than resolving individual problems[78]. The process must emphasize the importance of genuine empowerment and mutual recognition of each party’s humanity and the value of compassionate strength among parties in conflict. This humanity and healing enable the parties to regain strength, act and handle life’s problems[79]. Therefore, the mediator must facilitate a dialogue that allows the parties to discuss the full impact of the conflict, assist each other in determining the most suitable resolution, and recognize each other’s common humanity, despite the conflict.

More work must be done in line with a holistic and effective mediation process. The significant concerns consist of assessing whether things can regain their status quo while implementing a peace agreement. The major challenge concerns the process of apology and forgiveness, eradicating the culture of impunity, and reconciliation.

Application of international law and normative frameworks

Though international, regional, and organizational rules and regulations and other normative obligations became binding upon the parties that serve as an international legal framework basis, there are still challenges related to applying these legal and normative frameworks to some specific cases.

These challenges may include situations of the urgency of ending the violence in a context where there is a need to address human rights violations and other crimes against humanity, different applications, understanding, and interpretation of these international laws and normative frameworks by the conflict parties[80]. This dilemma makes the process more complex. However, the main gain from international laws and norms is that they set standards and uniformity to avoid equivocal application of laws and therefore contribute to reinforcing the legitimacy of a process and the durability of a peace agreement.

Moreover, an effective peace negotiation process must include an aspect of accountability and eradicate the culture of impunity; that is, the authors of war crimes and crimes against humanity must be tried. It is part of the responsibility to protect human rights. Sometimes, the ICC can become a hindrance to peace negotiations, such as in the cases of arrest warrants[81]. Therefore, it becomes a dilemma: ensuring justice by eradicating the culture of impunity (tension increases) or staying arrest warrants and increasing the chance for negotiation and reaching a peace agreement.

SUMMARY *

The article’s argument is cumulative rather than linear. Each stage of a mediation process, on the author’s account, contains a point at which the effort can be quietly emptied of substance while continuing to look like mediation: a conflict understood only as threat forecloses what could be learned from it; consent obtained under leverage is not consent; parties identified for convenience rather than authority cannot deliver what they sign; intervention timed by the doctrine of ripeness may arrive after the deaths it was meant to prevent; and an agreement reached without provision for its own implementation postpones the conflict rather than resolving it. From this the author derives what he calls a holistic approach, meaning not a technique but an insistence that the work does not end where most processes end, namely at signature.

CONCLUSION

Conflict is inherent in how humans interact and should be understood as inevitable rather than perceived as a negative occurrence. According to its dynamics, the mediation and conflict resolution processes cannot claim to be effective and successful if they limit their efforts in reaching an agreement. Instead, the holistic aspect requires them to go the extra mile and deal with the issues’ root causes, including diversity, the party’s capacity to implement the peace agreement, and time constraints.

In addition, they must tackle the issue of inclusion in the peace process, the parties’ status, consent, willingness to negotiate, and the role of external players in the good conduct and success of the mediation process and mediation outcome. Though there is no single formula for effective and successful mediation, the mediator’s strategic planning that emphasizes social healing and the parties’ commitment to repair or improve the relationships can help to achieve that goal.

In that process, instead of actively and efficiently guiding the parties toward a settlement, the mediator should assist them in entering a dialogue with each other, experience each other as fellow human beings, despite their conflict, and seek ways to help them come to understand and respect their differences and arrive at a mutually acceptable way to deal with those differences.

POTENTIAL SOLUTION *

The most substantial contribution here is the challenge to ripeness, and it deserves to be stated more forcefully than the article states it, because it is a live argument in the field rather than a marginal reservation.

Zartman’s formulation describes when parties become willing to negotiate; it was offered as an explanation rather than as a prescription. The difficulty arises when it is used prescriptively, as the counsel to wait for a mutually hurting stalemate, since what produces such a stalemate is casualties. A doctrine that identifies the right moment for intervention as the point at which both sides have suffered enough is, applied literally, a doctrine that prices its own precondition in lives. The author is right to resist this, and the resistance has support: ripeness can be cultivated rather than awaited, through the manipulation he describes, through external pressure that alters what the parties expect from continued fighting, and through preparatory work that ensures a process exists when the moment arrives. The practical formulation is that unripeness is a description of present conditions, not a reason for absence, and the mediator’s task in such periods is to build the relationships, gather the analysis and establish the channels that make later engagement possible.

The treatment of consent similarly identifies a genuine tension and could resolve it. Mediation rests on party self determination, and mediators with leverage routinely apply pressure; both propositions are true, and the field manages the contradiction rather than dissolving it. The workable distinction is between pressure applied to the choice of whether to negotiate, which is commonplace and generally acceptable, and pressure applied to the content of what is agreed, which converts mediation into imposition and produces the agreements that collapse on implementation. Transparency about what the mediator can offer and withhold is what keeps the first from becoming the second.

Two areas would benefit from further development. The observation that mediation must occur within parties as well as between them is among the most important in the article and is treated briefly. Negotiators are constrained by constituencies more than by counterparts, and the work of preparing one’s own side to accept an agreement is often harder than reaching it; mediators who ignore this discover it at ratification. And the discussion of women in peace processes rests its case largely on attributes said to characterise women as negotiators. That argument is widely made and it carries a risk, since a claim to inclusion grounded in particular qualities can be defeated by showing that a particular woman lacks them. The stronger ground, and the one the author also invokes, is that half the population affected by a conflict has a claim to shape the settlement governing their lives, and that the evidence on agreement durability supports their participation regardless of how anyone negotiates.

Finally, the article closes on the tension between accountability and settlement without resolving it, which is honest. It is worth adding that the dilemma is less absolute than it appears. Sequencing, conditional and individualised amnesty of the kind used in South Africa, hybrid mechanisms, and the deliberate preservation of evidence for later proceedings are all ways of holding both objectives without sacrificing either outright. What experience does establish is that blanket amnesty granted to secure a signature reliably produces the grievance from which the next conflict grows, which means the question is not whether to pursue accountability but when and through what mechanism.

* Added by the WMO Editorial Team

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[Footnotes 1 to 81 as in the original manuscript]

Supplementary references added by the WMO Editorial Team

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United Nations Security Council Resolution 1325 (2000) and the United Nations Guidance on Gender and Inclusive Mediation Strategies (2017).

The role of unofficial diplomatic actors in the effectiveness of international diplomatic functions

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

EDITORIAL NOTE *

The author of this article works at the United Nations High Commissioner for Refugees and states that the views expressed here are not a reflection of the official position, past, present or future, of the United Nations or of UNHCR.

ABSTRACT

Modern diplomacy is experiencing fundamental changes at an unprecedented rate, thus affecting diplomacy’s very character. In that sense, technical developments, technological advancements, the complexity of conflicts, and the proliferation of foreign business relations affect how diplomats perform or should perform their functions. In that same diplomatic trend, the number of domestic and international actors influences diplomatic functions differently. Against that backdrop, the role of unofficial diplomatic actors is paramount for peaceful relations and conflict resolution.

However, these unofficial initiatives do not intend to achieve the goals of traditional diplomacy, nor do they intend to produce agreements nor to affect significant shifts in policy in the short term. Instead, they aim to affect more intangible but significant factors of intractability, such as changing the attitudes and relationships of the conflicting parties. This paper explores the particular contribution of unofficial diplomatic actors to the success of international diplomacy and the various challenges encountered in that process. A few cases were worth including to demonstrate the success of informal diplomatic efforts. These cases have proved how unofficial diplomatic actors are instrumental in providing a non-judgmental, non-coercive, and safe environment for open dialogues that enables the parties to freely share perceptions and needs while striving to explore ideas for resolution.

KEYWORDS *

Track two diplomacy, unofficial diplomacy, problem solving workshops, non governmental organisations, special envoys, Mozambique peace process, Iran, North Korea, Kashmir, spoilers, small states, mediation

INTRODUCTION

In modern society, foreign policy and international diplomacy require global efforts to address global warming problems. Diplomatic functions have become more demanding and burdensome for official diplomats with limited time. However, the proliferation and complexity of global warming issues require dealing with them from their root causes, with the need for informal and friendly approaches and being flexible throughout the process. To that end, only unofficial diplomats can serve that purpose without becoming substitutes for official diplomats; but complement and perform the seemingly impossible work for official diplomats.

MAIN CORPUS

The particular character of track two diplomacy compared to track one official diplomatic functions

The complexity of intrastate and interstate conflicts has become a critical challenge in conflict resolution. The best methods of resolving these conflicts require various types of diplomacy. Therefore, track-II diplomacy is the leading method that marked the successful work of agents who do not appear in an official status. One weapon that constitutes its success baseline is that officials do not fear losing constituencies, which is a significant burden for track-I diplomacy. Furthermore, it involves grassroots and middle leaders directly contacting the conflict[1].

Another particularity of track-II diplomacy compared to track-I is the lack of official status of the parties involved in the conflict resolution process, who are influential people. Furthermore, an essential gain of unofficial diplomacy is its consideration of the social aspect of the conflict and implementation of the conflict resolution agreement. Typically, peace agreements that do not consider inter-societal relations are unlikely to endure since they lack public support and cooperation.

Track-II talks set the groundwork for formal negotiations; they are the baseline for formal talks. However, track-II diplomacy is not an official negotiation and does not intend to substitute for official negotiations. Insofar problem-solving workshops used in track-II diplomacy are closely linked to formal negotiations and play a significant complementary role at all stages of the negotiation process. For example, in the pre-negotiation stage, such workshops may help create a political climate conducive to movement to the table. In the actual negotiation phase, they may help overcome obstacles to productive negotiations and to frame issues not yet on the table, while in the post-negotiation phase, they may contribute to the implementation of the negotiated agreement[2].

The place of unofficial interveners in the diplomatic process

As mentioned earlier, track-II diplomacy is a critical component of unofficial diplomacy that finds its strengths in unofficial dialogue and problem-solving activities. Unofficial diplomatic works encompass track-II diplomacy, citizen diplomacy, multitrack diplomacy, or supplementary diplomacy. It may also occur during the pre-negotiation or consultation phases, with interactive conflict resolution or back-channel strategies. In other aspects, it can consist of facilitated joint brainstorming.

Typically, unofficial dialogue and problem-solving activities aim to build relationships and encourage new thinking that can lay the foundation for official talks. Since it is unofficial, various unofficial interveners contribute to its success. These include academic, religious, NGOs, private individuals, and other actors who can interact more freely and informally than official diplomats or high-level political leaders.

The role of non-governmental organizations in international diplomacy

Non-governmental organizations (NGOs) can act in ways that states and intermediaries are not. Because of their transnational identities, they can hold the world’s public interests above national interests in ways neither the states nor the U.N. itself can. They operate with longer-term time horizons than states, have a better historical memory for issues, provide education opportunities for conflict resolution, and serve as information channels. Interestingly, many peacemaking activities that require time, effort, and patience, such as track-two diplomacy, can be best dealt with by NGOs. Besides, whereas the states and even most international organizations, as third parties, are usually motivated by the desire to extend Influence, NGOs operate independently of power politics; therefore, they are likely to be trusted by the parties in conflict. In short, it is essential to recognize and encourage the participation of NGOs as intermediaries and mediators in international conflict situations[3].

Mediative efforts of unofficial diplomatic facilitators

As emphasized above, track-II mediative diplomacy involves interactions between individuals or groups outside an official and formal negotiation process, while track-I refers to all official, governmental diplomacy. It typically refers to unofficial meetings between non-governmental representatives of opposing sides who convene to discuss options to resolve conflicts. In that process, many informal diplomatic exchanges play a non-negligible role.

However, as Smith and David insisted, these informal meetings do not replace official dialogue or negotiations. Instead, they can complement official dialogue by broaching subjects too sensitive to discuss in formal negotiations. In doing so, they provide a forum for governments to indirectly exchange, use back-channel messages, or socialize participants with one another. In that work, they create working relationships and a more robust understanding of the institutional dynamics at play on the other side. Ultimately, there is a need for complementarity between both tracks and information sharing to inform officials’ decision-making, develop cohorts of people who later participate in official negotiations, or contribute to a domestic political environment in which official negotiations become an acceptable policy.

In these mediative efforts, track-II dialogues can contribute to an understanding and expertise in arms control, expertise that might be lacking prior to such informal talks. To do so, track-II mediators often focus on what they do best; establishing and sustaining relationships between hostile groups and keeping communication channels open.

The strategic mediative approach

Track-II diplomacy is an unofficial and informal interaction between members of adversary groups or nations aiming to develop strategies, stimulate public opinion and coordinate the required resources in ways that might help resolve their conflict. Problem-solving workshops represent the paradigmatic application of track-two diplomacy. In order to happen, problem-solving workshops are intensive, private, and non-binding meetings between politically influential representatives of conflicting parties. These politically influential representatives are unofficial[7].

Herbert Kelman’s role in resolving the Israeli-Palestinian crisis by arranging several workshops between the Israelis and Palestinians was resourceful. Participants included parliamentarians, leading figures in political parties or movements, former military officers or government officials, journalists or editors specializing in the Middle East, and academic scholars who are significant analysts of the conflict for their societies and some of whom have served in advisory, official, or diplomatic position[8].

The lesson to learn from the success stories of unofficial diplomacy

There is a remarkable difference in approach and success between Track-I and Track-II because the former tends to be more short-term focused, while the latter has a broader remit to address longer-term futures. Concerning the success, a few cases discussed in the sections below represent numerous cases that prove the success of non-state and informal diplomatic actors in their mediative efforts. These include the Mozambican peace process, Israel versus the Palestinian Liberation Organization, India versus Pakistan, Iran and North Korea, the U.S.A., and Ossetia versus the Republic of Georgia. In all these cases, track II mediation allowed deeper digging by bringing representatives of hostile groups to dialogue in informal settings to address the root causes of long-standing differences and contentions[9].

The role of multiple informal mediation actors: the Mozambican peace process

The Mozambican case is one of the leading examples of long-history violent conflict that marked the successful mediative work of informal actors, and N.G.O.s in particular about meditating. This case consisted of a multitrack process, with the need for multiple resources; thus, official personnel and states continued to play a crucial role because they had resources unavailable to informal players[10]. The mediation attempts involved the Government of Vatican, the governments of Italy, Kenya, the Sant’Egidio Community, the Mozambican churches, France, Malawi, Portugal, Zimbabwe, the United Nations, the United Kingdom, and a non-negligible role of the U.S.A. One particular aspect is that each party was represented in the group, with observer status, and later became the mediation group, the collective mediation action. This approach proved successful after disagreeing about the African state to invite as mediator[11].

This collective mediation action met the wishes of both conflicting parties because the government wanted a mediator with a minor role and no manipulative ability. These were the mediation requirements of RENAMO; that is, a mediator rather than bilateral negotiations[12]. Moreover, this case marks the role of religious elites (Roman and Anglican) and Non-Governmental Organizations. In that sense, the Christian Council of Mozambique (C.C.M.) established the Commission for Peace and Reconciliation (C.P.R.) to explore possible options for dialogue and facilitate communication between the litigants, acting behind the scene throughout the mediation process and involved in negotiating the conditions of an amnesty with RENAMO leaders[13].

The strategic use of informal settings in the Mozambican case

In this case, the mediation group used the communicative strategy to maintain the dialogue between the parties and transformed the relations of hostility into cooperation, helping reconciliation through a dialogue between the parties. The shuttle diplomacy played a role in dialogue with delegations of the factions in Rome and other top leaders of the parties. They attempted to agree on meeting agendas and clarified the issues to focus on or mitigate the situations beyond the authority of the heads of Rome delegations. By formulating mediation, mediators could control the agenda and, accordingly, change it and set deadlines and meeting settings. However, the low profile of the mediation group had little influence; that is, the group could not grant legitimacy to any diplomatic agreement[14].

The mediation group had to recourse for diplomatic assistance from influential states, whose resources could help them address an impasse whose resolution became complex. In other words, they had to resort to the assistance of track-I diplomacy, especially from the Zimbabwean, the U.S., and Italian governments. The same assistance process was required when it concerned technical matters, namely of a military nature, of which members of the mediation group did not know[15].

Inevitable role of states in the success of the Mozambican mediation process

The diplomacy of various African and Western states played a significant role in monitoring and supplementing the mediation group’s action. It happened significantly to resolve complex issues or when the parties were reluctant to reach an agreement. Their role helped overcome the impasse between the negotiating heads of the delegations, talk to the top leaders, set deadlines, and stimulate possibilities for resolving issues that could not be resolved[16].

Unofficial talks with nuclear outliers: the North Korea and Iran case

The Iran and Korean case marked the role that track-II talks and other engagement initiatives played in addressing the issues caused by Iran and North Korea.

Governmental representatives in informal talks

The North Korea and Iran case involved a mixture of private individuals and government representatives participating unofficially; that is, track-one and half diplomacy. In this case, North Korean and Iranian interlocutors in unofficial meetings with Americans were almost government representatives, typically from the countries’ Foreign Ministries.

After a long history of impossible talks between the two states, track-II talks helped create an environment for the resumption of official talks between the U.S.A and Iran. These talks led to a joint and comprehensive plan, with action implementation (JCPOA) on Iran’s nuclear program[17]. These informal exchanges from people-to-people initiatives helped pave the way for U.S. and Iran track-II talks on political and security issues. On another side, the U.S. and European think tanks and universities began regular track-II initiatives with Iran on political issues[18].

There is no doubt that the meetings in the phase of track-II dialogue were productive. Track-II talks, in this case, helped inform U.S. experts’ analysis in outlining ways to achieve progress in formal negotiations over Iran’s nuclear program. In some cases, the involvement of technicians and experts who joined the dialogues engaged in technical discussions with Iranian counterparts. Their focus was to assess the proliferation risks of a limited and contained Iranian uranium enrichment program[19].

The role of track-II dialogues and people-to-people talks in the conflict between North Korea and the United States of America is an emblematic note in history. The North Korean and the U.S. nuclear crisis was prolonged over crisis with difficult formal talks. The leading role that track-II dialogues and people-to-people exchanges played had been significant in getting official negotiations on track and ensuring effective communication and information sharing between U.S. specialists and North Korean officials. These consisted of unofficial talks and back-channeled messages since the rise of the crisis in the 1990s[20].

Individual facilitators and non-governmental organizations in the facilitation of official talks

The expansion of foreign relations, global conferences, and increase in trade has opened forums for non-governmental organizations (NGOs) to participate with no decision-making power. Their diplomatic role has been remarkable in campaigning to ban landmines and end poverty and other socio-economic aspects.

In the conflicting cases above, various non-governmental organizations (NGOs) supported complementing a complementarity between official negotiations and unofficial discussions, making them less rigid. These NGOs played a considerable role in coordinating discussions between the North Koreans and American foreign policy experts. To do that, they occasionally included U.S. officials participating unofficially. Inevitably, continued track-II dialogue allowed the U.S. and North Korean participants to build strong working relationships and provide experience and knowledge that could prove helpful to both Washington and Pyongyang should government-to-government talks resume[21].

Simplification of official diplomatic talks by individual facilitators

The private individuals’ track-II diplomacy is most suited to conflict resolution, especially in polarized cases. Its particular application resides in its flexibility in shuttle diplomacy, consisting of back-and-forth talks with disputants. In conflict management, the conflicting parties receive private individuals rather than officials; the trust, openness, and confidence to talk increases with private individuals. Private individuals are flexible in reaching each side and inducing them into formal negotiations. Though private individuals are involved in the diplomatic process, they do not change international affairs; they contribute at their level. Throughout the process, the shuttle diplomatic helped them find commonalities or shared interests than focusing on differences[22].

These works may start with individual self-promotion and personal public visibility and end in formal diplomacy. In inter-state relations, a private individual may be an intermediary who interests parties to initiate contacts[23].

Former U.S. President Jimmy Carter played a significant role in the North Korean nuclear case when he traveled to Pyongyang as an unofficial in June 1994. His visit aimed to negotiate a potential framework for North Korea’s nuclear program[24].

In another case, Jim Carter’s reconciliation among the Nicaraguan people and between Nicaraguans and Americans signals the results of personal efforts in resolving complex conflicts[25]. In the same trend of the positive impact of persons without any official ties, the role of Tarje Rod Larsen in track II, back-channel conversations, and Norwegian facilitation is virtual memory in the Oslo Accords between Israel and Palestine Liberation Organization[26]. Other well-known private individuals with substantial diplomatic influence include Armand Hammer and Tiny Rowland, the former managing Director of Lonrho. Hammer’s influence to promote East-West détente on behalf of the Soviet Jews at the instigation of Israel made a critical remark. His tremendous experience with the Soviet Union and vast wealth had been instrumental in opening the doors in Moscow that others found closed[27].

The role of independent diplomats in the small states’ diplomacy

International diplomacy, especially the United Nations, is characterized by an imbalance of powers, discrimination, and alienation of small states. In other words, the debates in the U.N. do not consider serious matters that are enormous burdens to the small states. The more the U.N. conferences fail to address critical issues and promote inequality and discrimination instead, the more global warming problems and isolated countries increase. As Ross criticized, essential ideas of small states are safely ignored in the U.N. debates, while crazy ideas of major powers become imperative to all members[28].

As a solution, there is a need to reinforce the role of small states in multilateral diplomacy; the role of experts and other technicians in critical diplomatic matters is essential. Equally, independent diplomats can play a vital role in supporting the small states to overcome the abuse of some states’ power in manipulating foreign affairs and the international community’s failure to address global warming issues[29].

Training and capacity building as another strategic way in conflict resolution: the Kashmir case

In the case of India and Pakistan, several ideas developed under track-II initiatives have been implemented. These include the establishment of a hotline connecting the leadership of the land forces of Pakistan and India. It resulted from the tremendous work of the Stimson Centre, the Cooperative Monitoring Centre at Sandia National Laboratories in Mexico, and the Centre for Strategic and International Studies (CSIS)[30]. These centers played a considerable role in providing ideas and training to officials from the three neighboring states: Pakistan, India, and China.

Their principal objective was to reduce the danger of nuclear conflict, promote nuclear non-proliferation, create an understanding of the Kashmir issue, normalize the relations between India and Pakistan and mainly stabilize the politics in the South Asian sub-continent[31]. The center started a dialogue process between India and Pakistan, but their main contribution has been training Pakistani, Chinese, Indian officials, journalists, and academics in arms control and confidence building. The result of these centers’ work is that they ensure a friendly atmosphere, and even while divisive issues were discussed, members of the two groups maintained cordiality[32].

The same strategy of capacity building and problem-solving workshops was used by the Conflict Management Group team (C.M.G.) in the conflict between South Ossetia and the Republic of Georgia in 1995. The strategy consisted of facilitated joint brainstorming, an informal and unofficial discussion in which a few knowledgeable and influential people from each side were coordinated in generating options that might later be recommended to the leaders. Through this strategy, the participants were to consider how they might deal with them instead of focusing on the issues separating them. Finally, this informal and unofficial interaction helped to establish an official bilateral process where it did not exist[33].

The role of special missions

Special mission diplomacy evolves into ad hoc diplomacy, or diplomacy by itinerant agents, extraordinary diplomats, special envoys, or temporary delegations[34]. The involvement of special envoys is one type of unofficial emissaries that is relevant primarily for contemporary diplomacy because of the growing relevance of non-state entities in foreign policy and the need to utilize informal channels of communication in politically sensitive contexts[35].

Special missions help facilitate mediation, especially in polarized situations where parties are overtaken by ideology, cultural considerations, and other extremities blocking them from meeting and resolving the matters. In the same reasoning as the above, special missions are helpful in proximity talks by being the messenger between the conflicting parties, especially when participants are not continuously present at the exact location but periodically take turns meeting individually with the mediator[36]. In this aspect, the work of ambassador Bunker in Egypt and the Middle East signals an inevitable need for special missions in high-tension conflicts. He played an unprecedented role in fact-finding and persuasion of the parties on interest to mediate[37].

Other influential non-state diplomatic actors

Other various non-state actors include Political Groups that Advocate Violence (Terrorists), Non-governmental Organizations (NGOs), Transnational Corporations (T.N.C.s), Multinational Corporations (M.N.C.s), Transnational Actors, Intergovernmental Organizations (IGOs), the terrorist groups that hold some power and can influence the international relations between states. To these non-state influential actors, it is worth adding sub-state actors; these are groups of people with similar interests that are not beyond the states that can affect the state’s foreign policy. They are also known as domestic actors[38].

Furthermore, M.N.C.s with greater earning capacity and financial resources than states tend to impose some policy orientation on states. In most states where the legal and regulatory frameworks are not standing enough, they become the actors of coercive diplomacy; that is, they manipulate the negotiation and legislation processes and exploit local labor, including child labor and cheaper payments. Many of their activities in the host states cause environmental degradation, and some support opposition and rebellions, threatening the state’s sovereignty. International representation competes with diplomatic missions of foreign states on different commercial and business matters; worst, they use their diplomatic resources to fight international projects that hurt their interests[39].

The factors hindering the functions of unofficial diplomatic actors

Based on the example of Korea and Iran, the new Obama administration hindered the standard progress of the talks; they had been changes in the positions of the former participants in the negotiations. The impact of track-II talks with Iran was not immediately apparent during the first term of Obama’s administration. Instead, talks on Iran’s nuclear program faltered, while Washington’s policy focused on sanctions to build a stronger negotiating position.

The U.S.A. coordinated a global economic pressure campaign against Iran and a handful of U.S. officials with previous experience in track-II meetings. These meetings played a role in establishing a secret U.S. and Iran bilateral channel in Oman to address these challenges[41]. The situation worsened with the new Trump administration’s approach to impose a travel ban to the U.S.A for Iranians, which posed significant challenges to future Track-II or people-to-people exchange efforts[42].

The issue of limited mandate and participants with unequal status

It is with no doubt that informal meetings can only change negative attitudes if certain conditions are met, and in the absence of them, interactions between conflicting party members may even exacerbate the existing tension. For example, Daniel Serwer served in Bosnia-Herzegovina under Assistant Secretary Richard Holbrooke as the special envoy for the Muslim-Croat Federation. Serwer felt he was successful partly because his Mandate was narrow, consisting of working with Bosnia’s Muslims (Bosniaks) and Croats to create a viable political entity. He was not caught up in broader aspects of the U.S. policy in resolving the Balkan conflict. Under Holbrooke’s protection, he had the latitude to act quite freely within his Mandate[43].

The discussions above emphasized the usefulness of unofficial diplomats, especially their role in track-II diplomacy. The developments below emphasize the various factors that can hinder its regular progress. Principally, track-II discussions can mislead the group members who lack the political realities of their governments and societies. Inevitably, ongoing regional conflicts and instability often make such discussions challenging to progress.

On the contrary, a more comprehensive mandate helped the special envoys or special representatives deal with the Sudanese crisis at the regional level. In less than a year after signing the peace agreement, South Sudan’s fragile political system collapsed, and the country fell into civil war, while the peace with Sudan and the entire region’s stability was threatened. South Sudan’s internal weaknesses were a continuing threat to peace and needed much greater focus. The special envoys’ role has been revitalized as part of a complex regional mediation effort. Without any doubt, empowerment is an essential tool for the success of this function. Typically, failure to empower undercuts an envoy and works against the interests of the policy[44].

Problems may especially be experienced regarding the issue of finding participants of equal status. In most conflict situations, the power disparity between the parties itself would be a source of inequality as members of the more powerful side tend to view their counterparts as lower-status people, even if there is no excellent dissimilarity among them in terms of class[45].

External influence on the parties and time constraints

The parties’ consent and commitment to mediation are essential for the excellent conduct of the process and the outcome. However, due to external influences, one can still question the success of unofficial diplomats’ efforts in the effectiveness of informal talks[46]. These may pressure the parties, manipulate the process, and exercise pressure on the facilitator by advancing some deadlines, and these influences can undermine all the efforts produced by the facilitators.

External influence on the parties may include political or military influence or economic leverage[47]. In the Iraq case, the influence of superpowers, namely France and Russia, blocked all the attempts to propose collective actions against smuggling. The basis of these superpowers’ opposition to that proposal was that there was insufficient proof of the smuggling or that such action might further harm the Iraqi people[48]. Furthermore, time constraints can create pressure and thus impact the process and the outcome.

The impact of media

The impact of media in diplomatic functions may be public diplomacy, where state and non-state actors use the media to influence public opinion abroad, or where officials use the media to communicate with actors and promote conflict resolution. It can also be media-broker diplomacy, where journalists serve as temporary mediators in international negotiations[49]. In all these aspects, negotiators may commit to discussion elements of the issue because “nothing is agreed until everything is agreed” because they bear in mind the pressure of media and press upon the negotiators[50]. Therefore, they commit to refrain from making the negotiation progress known publicly to the press and media until the final agreement is reached. In this context, Leguey insists that media can negatively affect informal negotiation efforts when speculations and inaccurate information are taken as factual reporting, mainly when highly controversial or emotional issues are at stake[51].

On a mission to Beijing, Dag Hammarskjöld had done tremendous negotiation work to release eleven U.S. detained soldiers imprisoned in China. His efforts moved from informal conversations to official talks with Chou, in which they jointly delivered an official communiqué on their successful negotiations, the good health of the prisoners, and their commitment to keeping the talks in the future, an action that the media turned into a failure. On his return to New York on January 13, 1955, emotions and tensions were high in the families of the prisoners and the public due to inflammatory media accounts that had frozen positions in a way that had rendered the situation much more difficult[52].

The negative impact of spoilers and political dependence

Spoilers are another factor that can deter the regular progress of informal talks, especially when there has been information leakage because spoilers inevitably undermine and marginalize efforts that intend to build bridges across conflict lines. Furthermore, unofficial processes cannot completely protect themselves from the political environment in which they operate because participants in these efforts are always responsive to their communities’ political developments.

In some instances, this context is invariably hostile because participants are victims of direct harassment, intimidation, and sometimes violence from rejectionists and even their governments[53]. In other situations, hostile bureaucratic actions by political authorities include failure to grant visas to these unofficial or enforcement of laws forbidding contact with local people or some categories of officials while making participation difficult. Moreover, unofficial intermediation processes are vulnerable to harmful media exposure, especially in case of leaks or media commentary[54].

Needs for governmental support to private diplomatic initiatives

In many situations, political leaders are reluctant to appear in formal contacts because of the message they can deliver to the public. That way, individual private initiatives can bridge that gap. To do that, governments should be (unofficially) supportive of the effective conduct of their initiatives that may finally lead to formal talks. The core reason for this governmental support is that though the person may be acting in her name, there might have been an invitation from the government, and she can open communication channels. Furthermore, opening channels for communication by a private individual help avoid embarrassment or opposition[55]. While unofficial intermediaries try to overcome the imbalance between the participants’ contributions, they often do not have the resources to equalize the relationship. Consequently, weaker parties sometimes view these processes as not addressing the core problems in the conflict[56].

One of the leading examples of the success of this political, governmental, and financial support is the Oslo Accords signed by Israel. These Accords resulted from the joint efforts between track-II institutions that facilitated and enhanced track-I initiatives. I agree with the author that track-two efforts are a solid foundation for track-I by enabling ideas to be tested before official negotiations[57]. In this regard, the states’ actions should be supportive rather than deterring the private initiatives’ efforts.

SUMMARY *

The article’s organising claim is that unofficial diplomacy succeeds precisely because of what it lacks. Having no authority to bind anyone, its participants can explore positions their governments could not be seen to consider; having no constituency to answer to, they can be wrong without cost; and having no timetable imposed by political cycles, they can work at the pace that relationships require. The cases assembled here trace that logic through very different settings, from a religious community convening a civil war settlement in Rome, to technical specialists establishing what a contained enrichment programme would mean, to training programmes that produced a military hotline between two nuclear armed neighbours. The second half then catalogues what defeats such work: changes of government, mandates too narrow or too vague, participants of unequal standing, external pressure, media exposure, and those with an interest in preventing agreement.

CONCLUSION

The diplomatic landscape consists of numerous diverse actors and widening issue areas encompassing different public policy sectors beyond the traditional focus on foreign affairs. Against this background, diplomatic engagement is observed in multiple settings across various levels, from domestic to global. The growing complexity of interactions prompted the diplomatic machinery to develop new modalities and techniques, such as broadening stakeholder involvement and using additional channels and instruments.

As the conflicts increase and will keep increasing, unofficial diplomats have a significant role in ending the conflict. They are a valuable means of signaling that the community is paying high-level attention to a particular conflict because of some work on individual initiatives. Apart from the conflicting situation, the appointment of an unofficial diplomat, such as a special envoy or a special representative, can also strengthen the control over a particular policy or situation important to the sending state. However, they can be fully effective only if sufficiently empowered and supported in their work.

In conflict resolution, though the work of unofficial diplomats may be less direct and dramatic, they are an essential tool in conflict transformation. All forms of unofficial intermediation, from track-I consultation to formal negotiations, have shown considerable success in changing the parties’ attitudes and relationships and empowering them to work together cooperatively to develop peaceful means for resolution.

POTENTIAL SOLUTION *

The material assembled here supports a more specific conclusion than the article draws, and stating it precisely would be useful to practitioners considering such work.

What the cases have in common is not that unofficial actors resolved conflicts but that they produced something official processes could not produce for themselves, and in each instance that something was different. Sant’Egidio supplied a venue and a relationship where no state was acceptable as convener. The technical dialogues on Iran supplied knowledge that neither government could have acquired from the other directly. The South Asian centres supplied a hotline, an artefact that outlived every political rupture since. The Oslo channel supplied deniability. Naming the contribution matters, because the recurring failure of track two work is that it convenes without knowing what it is for, and a dialogue that produces only understanding between the participants has produced nothing transferable.

That points to the transfer problem, which the article touches on and which deserves to be central. Insight generated in a private room changes nothing unless it reaches those who decide, and the mechanisms by which it travels are the least developed part of this practice. Participants with existing access, written products that circulate without attribution, officials attending in a private capacity, and the deliberate cultivation of people likely to hold office later are the routes that have worked. The last is the most striking finding in the literature: the durable effect of the Israeli Palestinian workshops was less any particular idea than the fact that participants later occupied positions in which they knew their counterparts personally.

Three cautions belong alongside the case for this work. Unofficial processes can substitute for official ones rather than prepare them, allowing governments to appear engaged while conceding nothing, and a dialogue that has continued for years without effect should be examined for that. Participants can be harmed, as the article notes, and any convener has an obligation to consider what exposure will cost the people in the room, which is why confidentiality here is a protective measure rather than a procedural preference. And the composition question the article raises about equal status has a further dimension: participants are chosen for influence, which tends to reproduce whoever already holds it, and the absence of women and of those outside political and academic elites has been a documented weakness of this practice.

Finally, the article’s treatment of the Oslo channel invites a qualification that strengthens its own argument. That channel is the most cited success of unofficial diplomacy and also the clearest demonstration of its limits: a secret process among few people produced an agreement that neither society had been prepared for, and it was subsequently destroyed by those excluded from it. The lesson is not that back channels are wrong but that what they achieve must at some point be brought into the open and built upon, and that the transition from the private room to the public settlement is where such processes most often fail.

* Added by the WMO Editorial Team

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[Footnotes 1 to 57 as in the original manuscript]

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