Human Rights in Peace Negotiations

I. Introduction

A major development in the international human rights community in the last decade has been the push to make human rights an integral part of conflict prevention, peacemaking, and peacekeeping. Nongovernmental organizations such as Amnesty International, the Lawyers Committee for Human Rights, and the Jacob Blaustein Institute for Human Rights deserve credit for this. They flagged the issue and kept on advocating the centrality of human rights. The moment might come when the human rights community will have to decide whether pursuing human rights issues in conflict situations has become a soft option for leading human rights instrumentalities—a means to escape addressing the conduct of governments that flout human rights in peacetime. There is certainly a balance to be struck here—but that is another issue, for another time.

In peace negotiations concerning Afghanistan, Cambodia, Central America, southern Africa, and the former Yugoslavia it has been refreshing to see the extent to which there has been explicit affirmation of the central place of human rights in shaping the content of those agreements. The peace agreements drafted under the auspices of the International Conference on the Former Yugoslavia have included some of the most extensive and far-reaching provisions on human rights to be found in any peace agreement ever. These have included the direct application of over twenty international human rights instruments in the domestic legal order, the establishment of ombudspersons, constitutional courts, human rights courts, and international human rights monitoring missions. In the cases of Cambodia, Central America, and the former Yugoslavia the strategic thrust of the peace agreements was to bring about situations in which respect for human rights and fundamental freedoms could prevail. From this perspective, it can be said that the role of human rights was pivotal in these peacemaking blueprints.

Beyond shaping the design of a future-oriented peacemaking blueprint, however, controversial issues have arisen which still need to be thought through about the role of human rights considerations in peacemaking. What should one do if the quest for justice and retribution hampers the search for peace, thereby prolonging a war and increasing the number of deaths, the amount of destruction, and the extent of human suffering? The quest for retribution or for a perfect peace can result in a long war. Is this defensible? In the case of the former Yugoslavia, as the peace negotiators went about their tasks, two fact-finding entities were at work: the Special Rapporteur of the Commission on Human Rights and the Commission of Experts looking into allegations of war crimes and crimes against humanity. Should such fact-finders expect to play a direct part in peace negotiations and to what extent should their work feature directly in the peace negotiations? What if their involvement would complicate the tasks of peace negotiators to the extent that it makes peace negotiations protracted or an agreement impossible? Is it proper for the President or members of the International Tribunal on the Former Yugoslavia to put public pressure on peace negotiators, or should the Tribunal more properly demonstrate its impartiality and independence by sticking to the cases that it is called to decide? Should judges on the international tribunal become advocates giving public lectures to peace negotiators? We shall address each of these three sets of issues in turn.

II. An Achievable Peace or a Long War?

Conflicts such as those in the former Yugoslavia have outraged the international community because of the shocking violations of human rights that have taken place. The international human rights community is indignant—and rightly so—about abominable practices such as ethnic cleansing. In 1978 a United Nations special rapporteur reported to the Commission on Human Rights that genocide had taken place in Cambodia—auto genocide he termed it—in which more than a million people had been killed. The perpetrators of that genocide were never brought to justice and the issue was not addressed in the Cambodian peace accords signed in Paris in 1991—which was replete with other references to human rights for the future. The Yugoslav conflict, in comparison, was a post cold war conflict and the world thought that practices...