Mediation has been instrumental in resolving diverse disputes ranging from commercial to extremely violent conflicts like wars. Several factors contribute to successful war mediation. The mediator’s neutrality, the promised confidentiality, and the voluntariness that characterizes mediation lubricate war relations locked by fears and distrust. This article examines the legislative framework of mediation and armed conflict, the attributes of a war mediator, and possible concessions that can arise from war mediation.
Introduction:
War has been defined as armed fighting between two or more countries or groups. Declaration of War heralds millions of deaths, suffering, and destruction in many nations. In addition to the deployment of military personnel and guns, modern warfare is attended by the use of long-range weapons like missiles. Mediators have diverse roles to play in these chaotic territories. War mediation does not ideally take place on the raging battlefields. Rather, war mediation can occur digitally and where safety and necessity dictate, physical meetings may be conducted with states’ decision-makers. Heads of state have played the role of mediators because these persons would have established trust and ongoing relations with the leaders and decision-makers in warring states. Professional and experienced mediators can be engaged as neutrals to mediate wars. Despite the brutality, devastation, and death that is associated with wars, there are internationally agreed humanitarian guidelines regulating tumultuous war scenes. These guidelines offer insights into possibilities mediators can look out for while mediating wars. Given the obligatory requirement of self-determination and the delicacy of war mediation, mediators should be skilled and disciplined to obtain the desired resolution.
Case Study: The Mutual Agreement to Destroy:
Warnings turned to threats of war and intimidating displays of military prowess across media outlets. From the confines of heavily protected and stocked hideouts, the leaders of Andril and Sobril had taken to the media to announce their decision to engage in a military contest. Justifications for the war include the protection of the right to life, territorial integrity, and security. Ironically, these rights have been progressively eroded with the intensity of the war. In Andril and Sobril, massive and deadly explosions swept across densely populated cities while weary human figures stealthily crept and crawled in bushes and battered buildings like rodents. Friends quickly turned to enemies as the warring nations exchanged deadly weapons. The dead, the wounded, and the destroyed infrastructure rapidly mount on both sides. No territory can rationally be declared a winner. Foreign allies hurriedly inspire the warring territories with a fresh supply of military personnel and sophisticated armament. Would warring nations have arrived at the mediation table sooner without their allies’ encouragement?
The unending shriek of missiles, mortars, and explosives replace the hopeful noise of construction, the banter of artisans and traders, and the joyful celebrations, enterprise, and cultures that characterize the Andrils and Sobrils. A few days of intense battle has erased the sense of security and civilization created by centuries of consistent hard work. In less than one week, the inhabitants of the warring nations have painfully admitted the limited supply of basic needs like food and water. The tension and fears are not imaginary. The cold stare of death from their enemies’ military artillery, falling trees and infrastructure, hunger, thirst, or unrefined terror haunted them in their unsanitary hideouts. The solidarity and patriotism that inspired their territorial leaders to war quickly lost priority as civilians moaned and cursed in the face of widespread deaths, human suffering, and hopelessness. Infants, youths, and the elderly are not spared. Who will survive when the territories are ‘secured’? The ripple effects of war, destruction, and pain continue their unending rounds in Andril and Sobril. No one knows how long the war will last. What can mediators do?
Legislative Framework:
The mediator and warring parties should consider local and international laws if they opt for mediation. Article 3 of the 1948 Declaration of Human Rights advocates for the right to life, liberty, and the security of persons, which is often severely threatened during wars. Recital 1 of the Preamble of the 1945 United Nations Charter decries the scourge of war, which has brought untold sorrow to mankind, and Article 33 of the UN Charter requires that all Members resolve their international disputes peacefully, in the interest of global peace, security, and justice6
and highlights mediation as a dispute resolution medium. Notable regulations warring parties and mediators should be concerned about include the Additional Protocol II to the Geneva Conventions (1977) on the protection of victims of armed conflicts,8 the 2010 International Convention for the Protection of All Persons from Enforced Disappearance and the 2002 Rome Statute which defines war crimes and criminal jurisdiction.11 Applicable mediation guidelines and regulations like the European Mediation Directive and the Singapore Convention on Mediation13 should also be complied with to avert contests over the settlement agreements. Case law precedents on the use of nuclear weapons, military and paramilitary activities, and access to ports are noteworthy.
Qualities of a War Mediator:
The mediator’s role is multi-faceted. The mediator is a problem-solver, advocate, communicator, educator, expert, coordinator, and representative. Mediators often lean on established norms, institutions, governmental and non-governmental structures, and varied actors during conflict resolution. Thus, credit for a successful war mediation does not belong to the mediator alone. A good mediator embodies positive attributes like empathy, neutrality, emotional sensitivity, trustworthiness, friendliness, and a non-judgemental disposition. The section below focuses on three essentials of a war mediator. An effective war mediator should be very discreet, tactful, and knowledgeable.
4.1 Confidentiality: Every mediation Code of Conduct and regulatory instrument horns the quality of confidentiality as an obligatory tenet for mediators and the mediation process. The primary exceptions are permitted disclosure by parties and disclosures mandated by law or court. In a war context, mediators may need to consider international laws for exceptions to confidentiality. This requires tact and sensitivity to prevent further misunderstandings and conflict escalation. Confidentiality is important for the safety of the mediator and parties involved. The war mediator often operates as a go-between physically or virtually while the violent conflict persists. Given this, the mediator is trusted to represent each party’s interests and positions without bias. The mediator should strive to eliminate actions or inaction that may be misconstrued as spying on foreign intelligence or treachery. The consequences of such misunderstanding can be grave and unpleasant. Mediation should not facilitate betrayal – mediators should obtain permission before disclosing confidential information, particularly about a warring party’s weaknesses. Mediators should also commit to transparency in information gathering and the presentation of settlement proposals, as well as respecting parties’ deadlines and the need for breaks to improve the chances of a peaceful resolution. Caucuses, rather than face-to-face or joint sessions, are encouraged to prevent violent exchanges and de-escalate the conflict.
4.2 Neutrality: Neutrality combines an unbiased and a fair-minded approach to dispute resolution. How do war mediators maintain neutrality? States in conflict may not come to a formal agreement on who should be appointed as a mediator. Mediators may be self-appointed heads of state, professionals from neutral organizations like the Red Cross, or diplomats from allied states. Mediators working towards resolving conflict should be transparent about affiliations with warring parties, or benefits from warring states that could suggest a conflict of interest. An indigenous mediator from a warring nation who agrees to mediate risks being regarded as a spy in a foreign country and a traitor in the home country if they do not act discreetly. This is a delicate position. It is a common occurrence that a mediator may be closely aligned with one party or too involved in the conflict to be neutral. In these instances, it seems that credibility is exalted above neutrality. Such actors may be relevant mediators because their past or established relationships and shared interests with the warring nation form the bridge of trust, openness, and flexibility that can lead to a peaceful resolution.
4.3 Professional and Knowledgeable: War mediators should be well-versed with historical facts that resulted in the war. Many wars are rooted in generational histories. A peripheral comprehension of current events may not be sufficient knowledge for mediation. The knowledge of parties’ cultures and practices is also beneficial to keep parties engaged. War mediators should be conversant with applicable international laws which may be triggered by the conflict. This will enable the mediator to facilitate within international legal boundaries. This would also ensure mediators are not embroiled in international war crimes and prosecution for confidential information conveyed or concealed. The resolution of violent conflicts should be holistic, considering diverse religions, ethnicities, and political and socio-economic perspectives. It should also be fair and transparent, involving relevant stakeholders and avoiding the natural inclination to exclude the troublesome ones. Knowledge of relevant stakeholders is important. Mediation involves a host of governmental and non-governmental, as well as national and international supporting actors. Their roles, motivations, strengths, and weaknesses should be carefully mapped for coordinated mediation sessions. Additionally, mediation should be prudently conducted to enhance parties’ self-determination and the success of the mediation. The success or failure of war mediation may depend on the mediators’ skill and professionalism. Unsuccessful war mediation may arise from vague mandates, uncoordinated mediation, presenting insensitive proposals, wrong timing, partiality, inconsistency, and excluding important stakeholders. Consequently, compromise achieved during mediation may be rejected by the parties; a failed mediation may result in lost trust and a lower likelihood for a peaceful resolution of the violent conflict in the future.
What Really Can Mediators Do? Violent conflicts like wars spring from inequalities in access to land and resources, discrimination against minorities, and aggression between states. Mediation is an effective tool for the prevention, de-escalation, and resolution of wars. Why mediation? Mediation is futuristic and focuses on mending relationships. Mediation is an enlightening, cost-effective, and flexible form of conflict resolution. It enables a face-saving expression of the parties’ commitment to genuine conflict resolution. What can mediators do?
5.1 Open Humanitarian Corridors: Warring states often target infrastructure that enables mobility and comfort. Destruction of infrastructure affects production and access to basic needs like food, shelter, and transportation. Humanitarian corridors are ceasefire arrangements to facilitate the delivery of humanitarian assistance, and the movement of civilians, wounded, and other protected persons where active hostilities and movements are particularly dangerous.34 In this regard, Article 18, paragraph 2, of the First Geneva Convention of 1949, states that “The military authorities shall permit the inhabitants and relief societies, even in invaded or occupied areas, spontaneously to collect and care for wounded or sick of whatever nationality.”35 Mediators can facilitate meeting these needs, intermittently, throughout the war. Conversely, humanitarian breaks may be employed to buy time to regain military strength.36 The efficiency of mediation may depend on the mediator’s character, expertise, and sometimes their institutional affiliations, such as being a staff member of the Red Cross.
5.2 Release of War Prisoners: Kidnapping hostages and imprisoning military personnel from opposing states is a common war strategy to outsmart the other party. There are several opportunities for the mediator where hostages and military personnel are held captive by an opposing state. Mediators can facilitate the custody of war prisoners in humanitarian conditions. Mediators can also aid the release or exchange of war prisoners held by opposing states while deliberations are made on primary issues that triggered their capture and imprisonment. Article 1(2) of the 2010 International Convention for the Protection of All Persons from Enforced Disappearance provides that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification for enforced disappearance. It is an instructive guide for warring nations.
5.3 Restoring Communication Lines: The outbreak of war is usually evidence that the relationship between antagonized states has broken down. It is noteworthy that the intervention of foreign allies tends to increase resistance to peaceful communication and mediation because these allies escalate conflict via the supply of weapons and resources to their warring ally; this also engenders disregard for the interests of indigenous people and businesses. Mediators should gradually work towards re-opening communication lines between the parties. War mediation may not be attended by the formalities of a standard mediation. Nonetheless, the mediator should employ the essentials that designate mediation like confidentiality, voluntariness, and self-determination to breach the hostilities associated with war, re-establish communication between warring nations, and rebuild a working relationship.
5.4 Facilitate Ceasefire: In addition to the destruction, death, and chaos associated with the violent exchange of explosives and gunfire by warring states, intensive war deters everyday activities, delivery of humanitarian aid, and medical relief to the sick and wounded. The temporary or ultimate ceasefire is required to deliver essential supplies to war-torn territories, release or exchange war prisoners, and assist the sick and wounded. Mediators may facilitate monitoring and control mechanisms for ceasefire agreements to prevent sabotage. This can be achieved by engaging peacekeepers, establishing a monitoring committee in the territory, and maintaining good relationships with social and political actors.
5.5 Dissuade Provocative Acts that Can Escalate the War: Mediation can be engaged towards dissuading extensive use of destructive weapons, infuriating media communications, unfavorable conditions of prisoners of war, disrespect of another country’s territorial integrity, commission of mass atrocities, and facilitating better terms for civilians in the war zones. Article 8 of the 2002 Rome Statute defines war crimes that mediators can dissuade parties from perpetuating. War mediators aim to resolve the conflict that initiated the war. The mediator’s duty should be subject to the parties’ self-determination in conflict resolution. Often, the resolution of such conflict does not occur overnight. In the interim, the mediator should engage parties towards de-escalation of the conflict, and the preservation of lives and properties threatened by violent military intervention. Mediators can leverage moral persuasion, trading concessions, threat of withdrawal, and loss of compromises already made by parties in mediation towards achieving a settlement. Other forms of leverage include the mediator’s personal prestige and informational power.
5.6 Restoration of Peace: The ultimate goal of war mediation is the cessation of violence, resolution of conflict, and the restoration of peace to war-torn territories. The mediator can only achieve those goals with the parties’ mutual self-determination to embrace a peaceful resolution. Mediation supports the monitoring and verification of settlement agreements. The mediator facilitates a mutual solution to disputes, outlines the costs and benefits of resolution, and encourages the parties to reasonably commit to peace. Genuine reconciliation requires mutual recognition of wrongs, investment in peaceful and trustworthy relations, sensitivity, and collective self-healing.
Conclusion
The war rages on. Nestled in safe havens, leaders toss the options that determine their citizens’ lives or death like a coin. The sad reality for many in war-torn nations like Andril and Sobril is that “There is no safe place for civilians in conflict.” The inhabitants of Andril and Sobril cringe with fright as fresh rolls of thunderous sounds fill the atmosphere. The fearful expectations are – more deaths, more hardship, and more destruction. Their fate hangs uneasily on their leader’s decisions. What will that be? “Peace, life and restoration” or “War, death and destruction?” Mediation still offers a suitable conflict resolution mechanism for warring nations, as it promotes confidentiality and self-determination in the embattled nations’ quest for peace. The war mediator plays a crucial but delicate role in the de-escalation and ultimate resolution of such violent conflicts. The cardinal principles of mediation double as the mediator’s working tools, promising healing and restoration to embittered relations and a guard shielding the mediator from virulent suspicions of betrayal and treachery.
References:
1. Cambridge Dictionary, War, Cambridge Dictionary, (July 13, 2024, 2:08 AM)
https://dictionary.cambridge.org/dictionary/english/war.
2. Fictitious country.
3. Fictitious country.
4. Universal Declaration of Human Rights (1948)
5. Charter of the United Nations and Statute of the International Court of Justice, San Francisco, (1945)
6. See Mădălina Cocoşatu1, Mediation – Political-Diplomatic Means for Solving International Conflicts, SSRN, 344-345 (July 10, 2024, 10:30 AM), https://ssrn.com/abstract=2156876.
7. See Articles 33, 36, 37, and 38 of the 1945 Charter of the United Nations and Hussain Mohammed, The Security Council Role in Keeping Peace in Africa Libya as a Case Study 2011 – 2017, SSRN, 6 (July 9, 2024, 14:05 PM), https://ssrn.com/abstract=3347947. On the Security Council and mediation.
8. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977
9. International Convention for the Protection of All Persons from Enforced Disappearance, General Assembly of the United Nations in its Resolution 47/133 (2010)
10. Rome Statute of the International Criminal Court (2002)
11. See Louise Mallinder & Ronald Slye, Rethinking Peace and Justice, Institute for Integrated Transitions (IFIT), 4 (July 12, 2024, 10:09 PM), https://ifit-transitions.org/wp-content/uploads/2021/03/Rethinking-Peace-and-Justice.pdf.
12. Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008, on certain aspects of mediation in civil and commercial matters (the Mediation Directive)
13. United Nations Commission on International Trade Law (UNCITRAL), Model Law on International Commercial Mediation, and International Settlement Agreements Resulting from Mediation (2018)
14. Legality of the Threat or Use of Nuclear Weapons, International Court of Justice (ICJ), 1996 on potential harmful health effects; Nicaragua v. United States of America Case Concerning Military and Paramilitary Activities in and Against Nicaragua, International Court of Justice (ICJ), 1986 on access to ports and mines; See also Peter Opatola, Unravelling the Russia-Ukraine Conflict: Legal Perspectives, Global Stakes and Pathways To Resolution, SSRN, 15 (July 11, 2024, 14:07 PM), https://ssrn.com/abstract=4572406.
15. Juan Diaz, Integrative Mediation: a “Bottom-up Approach” to Peacebuilding, SSRN, 11 (July 9, 2024, 14:17 PM), https://ssrn.com/abstract=1298574.
16. Id. at 4
17. Id. at 7
18. Johannes Hörner et al, Mediation and Peace, SSRN, 1 (July 10, 2024, 6:31 AM), http://ssrn.com/abstract=1657951.
19. Id.
20. Id. at 3
21. Id. at 4
22. Ariel Penetrante, Dealing with Biased Meditation: Lessons from the Malaysian and Libyan Mediation in the Philippines, SSRN, 1 (July 9, 2024, 21:43 PM),
https://ssrn.com/abstract=2030251.
23. Id. at 10
24. Agreement Jotia, Searching for New Solutions in International Peace and Conflict Resolution in Africa: The Inclusion of Non-Governmental Organizations (NGOs), SSRN, 7
(July 9, 2024, 2:45 AM), https://ssrn.com/abstract=1448512.
25. Id. at 8,13
26. Marie-Joëlle Zahar & Delphine Mechoulan, Peace by Pieces? Local Mediation and Sustainable Peace in the Central African Republic, International Peace Institute, 21 (July 11, 2024, 13:59 PM), https://www.ipinst.org/2017/11/local-mediation-and-sustainable-peace-in-the-central-african-republic.
27. Id.
28. International Peace Institute, Mediation and Peace Processes Task Forces on Strengthening Multilateral Security Capacity, International Peace Institute,
10,13,21 (July 9, 2024, 19:36 PM), https://peacemaker.un.org/sites/peacemaker.un.org/files/MediationandPeaceProcesses_IPI2008.pdf.
29. Sandra Destradi & Johannes Vüllers, The Consequences of Failed Mediation in Civil Wars: Assessing the Sri Lankan Case, German Institute for Global
and Area Studies (July 12, 2024, 10:09 AM), https://www.giga-hamburg.de/en/publications/giga-working-papers/consequences-failed-mediation-civil-
wars-assessing-sri-lankan.
30. International Peace Institute, Supra, note 28, 7
31. Id. at 6
32. Mike Madden, Making Use of Neutral Forces: Mediation of Performance Appraisal Disputes Within the Canadian Forces, Canadian Military J. Vol. 11, No. 4,
8, 12 (2011).
33. Penetrante, Supra, note 22, 12
34. Emanuela-Chiara Gillard, Enhancing the Security of Civilians in Conflict, Chatham House, (July 13, 2024, 13:50 PM)
https://www.chathamhouse.org/2024/04/enhancing-security-civilians-conflict/04-humanitarian-corridors.
35. Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, (Commentary 4875 of 1987).
36. Penetrante, Supra, note 22, 13
37. Priscilla Musikali & Lois Musikali, The Role of Mediation in the Resolution of the South Sudan Crisis, SSRN, 35 (July 13, 2024, 15:59 PM),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2622115.
38. Magnus Lundgren, Mediation in Syria, 2016-19: A Tale of Two Processes, SSRN, 12
(July 11, 2024, 14:03 PM), https://ssrn.com/abstract=3507785.
39. I. Priyantha, Norwegian Mediation in Conflict Transformation for a Sustainable Peace in Sri Lanka; Challenges Ahead, SSRN, 6 (July 9, 2024, 13:03 PM),
https://ssrn.com/abstract=1094339.
40. Id. at 6, 19
41. See International Peace Institute, Supra, note 28
42. Amanda Sanford & James Todhunter, Mediation and Conflict Diffusion: Is Diplomatic Intervention a Step Toward Military Intervention? SSRN, 8 (July 11,
2024, 13:58 PM), https://ssrn.com/abstract=2300230.
43. Priyantha, Supra, note 39, 5
44. Francesco Mancini & José Vericat, Lost in Transition: UN Mediation in Libya, Syria, and Yemen, International Peace Institute (July 12, 2024, 10:09 AM),
45. Penetrante, Supra, note 22, 12
46. Karl DeRouen & Ishita Chowdhury, Mediation and Civil War Peace Agreement Implementation, SSRN, 2-3 (July 11, 2024, 13:56 PM),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2300136.
47. Hassan Elkatawneh, The Israeli-Palestinian Conflict / Strategies for Conflict Resolution and Mediation, SSRN 7,11 (July 10, 2024, 14:02 PM), https://ssrn.com/abstract=2138715.
48. Global Observatory, “There is No Safe Place for Civilians in Conflict.” Q&A With Hichem Khadhraoui, IPI Global Observatory, (July 13, 2024, 12:35 PM), https://theglobalobservatory.org/2024/07/there-is-no-safe-place-for-civilians-in-conflict-qa-with-hichem-khadhraoui/
