Peace Mediation and Law

This closed meeting in the CILRAP Bottega in Florence discussed law and legal constraints in peace mediation, drawing on the unique, accumulated experience of the meeting participants. Chaired by CILRAP Director Morten Bergsmo (with experience from Colombia and Myanmar peace and reconciliation processes), the participants included H.E. Miroslav Lajčak (EU Special Representative for the Belgrade-Pristina Dialogue and other Western Balkan regional issues, formerly Foreign Minister of Slovakia and High Representative in Bosnia and Herzegovina), H.E. Ambassador Johan Vibe (Norwegian Ambassador to Italy, formerly head of the Peace and Reconciliation Section of the Norwegian foreign ministry and involved in several peace or reconciliation processes such as Afghanistan and Colombia), Dr. Bertrand Ramcharan (formerly, inter alia, acting UN High Commissioner for Human Rights and Director of the International Conference on the Former Yugoslavia), Professor Sarah Nouwen (European University Institute and Cambridge University), Mr. Peter McCloskey (formerly US prosecutor and lead prosecutor in the Srebrenica cases before the International Criminal Tribunal for the former Yugoslavia), and Dr. Song Tianying (CILRAP Research Fellow).

Public denial of genocide and other serious violations of international criminal law not only hurts victim families, but can undermine reconciliation efforts and even contribute to reopening of hostilities. In light of persistent denial of violations in Bosnia and Herzegovina, High Representative Valentin Inzko, drawing also on the German experience post-World War II, adopted the 2021 Decision on Enacting the Law on Amendment to the Criminal Code of Bosnia and Herzegovina which in Article 145a criminalises public denial of “a crime of genocide […] established by a final adjudication pursuant to the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945 or by the International Criminal Tribunal for the former Yugoslavia or the International Criminal Court or a court in Bosnia and Herzegovina”. The expert meeting discussed the reasons behind, merits of, and challenges associated with such criminalisation in post-conflict situations where there is not yet a stable peace.

Other topics raised for discussion at the expert meeting included the impact of the Kosovo Specialist Chambers on reconciliation efforts in Kosovo and the region; the role of lawyers and legal questions in the work of the International Conference on the Former Yugoslavia; the legal status of peace agreements between a State and an organised armed group; the Dayton process and the violations that occurred in Srebrenica during the months immediately prior to the Dayton peace conference; and the relevancy of the principle of ex injuria jus non oritur (‘no benefit can be received from an illegal act’, referred to by Hersch Lauterpacht as “a well-established principle of law”) to peace mediation and how the principle may serve as a guide in peace and reconciliation processes.

Drawing on Professor Nouwen’s writings on peace-making (‘Peacemaking’, in Eyal Benvenisti and Dino Kritsiotis (eds.), ‘Cambridge History of International Law, Vol. XII’, focusing on the period 1989-2021), CILRAP’s Director recalls the work undertaken by Professor Torkel Opsahl in the Northern Ireland conflict (Andy Pollak et al. (eds.), A Citizens’ Inquiry: The Opsahl Report on Northern Ireland, 1993); how his insights influenced the approach adopted by his long-standing friend, UN Special Representative Thorvald Stoltenberg, when he took on the mandate of Co-Chairman of the International Conference on the Former Yugoslavia (Opsahl: “A pragmatic approach to conflict is called for. The distinction between conflict and violence is crucial.”; “the protagonists must be persuaded that a gain for one side does not necessarily mean a loss for the other”; “Sectarianism is a huge obstacle […], which will have to be overcome”); how their combined experiences led to a strengthening of the peace and reconciliation capacity in the Norwegian foreign ministry; and how its Peace and Reconciliation Section supported research projects of CILRAP and PRIO (2006-10) related to the armed conflicts in Colombia, producing the anthologies Law in Peace Negotiations and Distributive Justice in Transitions, both of which played a role when the Section facilitated the Colombia-FARC process. The expert meeting in Florence was held as part of CILRAP’s preparation of a third, expanded edition of Law in Peace Negotiations.

CILRAP Conversations with Amb. Johan Vibe and Dr. Bertrand Ramcharan were recorded on the margins of the expert meeting, both with a focus on peace mediation and some of the questions discussed at the meeting. They supplement an earlier CILRAP Conversation made with former Ambassador Dag H. Nylander (Director, NOREF) on the Colombia-FARC peace process and general mediation questions from his time in the Peace and Reconciliation Section of the Norwegian foreign ministry.