The International Politics of Human Rights

Rallying to the R2P Cause?

Monica Serrano,Thomas G. Weiss

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317915645
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

The responsibility to protect (R2P) is at a crossroads, the latest in a journey that is only ten years old. This book present debates on the prevention of mass atrocities to R2P's normative prospects.

The book addresses key questions as a way to inform and drive on-going conversations about R2P. Moving beyond well-rehearsed debates about the tensions and meanings around sovereignty in R2P practice, the book focuses on advancing the credibility of the preventive dimensions of R2P, whilst simultaneously examining the extent of R2P's current value-added in state decision making—especially for the 2011 actions in Libya and Côte d'Ivoire.

Questions addressed include:

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• Did the R2P framework of the 2005 World Summit Declaration intend to mould sovereignty, and if so how?

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• Can R2P break or revert cycles of violence?

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• How can one determine the appropriate duration and timing of the preventive and protective phases of R2P?

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• Who/what should be the targets of preventive action, and how does this have an impact on R2P diplomacy?

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• Under which conditions are particular policy tools likely to be effective?

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• Which state and regional actors are best suited to using these tools?

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• What are the barriers to successful preventive action—how can they be overcome?

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• What capacities need to be built (at the national, regional, and international levels) in order to operationalize R2P's preventive agenda?

Examining a wide range of countries, this work will be essential reading for students and scholars of international human rights, international organizations, peacekeeping and conflict resolution.

Part I
The responsibility to prevent
Applying diverse tools

1Mediation and the prevention of mass atrocities

Eileen F. Babbitt

•Mediation as conflict settlement or prevention

•Mediation in Kenya, 2007–08

•Mediation in Côte d’Ivoire, 2010

•Mediation as operational prevention

•Conclusion

Mediation as a strategy to prevent mass atrocities faces a host of daunting challenges, as the experiences by two world-class mediators, Kofi Annan and Lakhdar Brahimi, over Syria have amply shown. Is it worth pursuing mediation under such difficult circumstances, or is the use of military force the only way to prevent mass atrocities or to protect civilians from genocide, war crimes, crimes against humanity, and ethnic cleansing?

This chapter analyzes when and how mediation may be effective in the prevention of mass atrocities. It demonstrates how both the human rights agenda of the responsibility to protect (R2P) and the conflict management agenda of mediation can work in an integrated way, but it also shows the obstacles to such integration.

The responsibility to protect agenda, both the original three-part conception by the International Commission on Intervention and State Sovereignty (ICISS) and the even more visible version in the 2005 World Summit decision, is an ambitious and significant one. Its purpose is to protect civilians from grievous harm, driven largely by its grounding in the international conventions on human rights and the prevention and punishment of genocide, as well as international criminal law. Notably, three of the four crimes explicitly identified in the 2005 decision include those prosecuted by the International Criminal Court (ICC): genocide, war crimes, and crimes against humanity. The R2P agenda also adds ethnic cleansing.

To date, much of the analytical and political attention on R2P has been focused on protection rather than prevention, and on using coercive measures such as sanctions and military force to stop governments from committing mass atrocities that are already in progress. In 2010 United Nations secretary-general Ban Ki-moon highlighted the need not only for protection from but also for prevention of these crimes: “We … need to understand the different kinds of measures that can be taken to prevent tensions between groups from escalating into genocidal conflicts.”¹

Mediation lends itself to this prevention imperative, as it can be effective on its own or in combination with other approaches to enable contending political actors to back away from violence and find a political solution that addresses grievances and settles differences. It can be employed in circumstances where the use of compelling military force by the international community of states is contested or otherwise not a viable option. The global South’s concern that R2P is a guise for neo-colonial takeover of other countries makes mediation a particularly crucial strategy to understand and use as a first resort for prevention.

However, mediation operates from a different set of assumptions than other R2P strategies that are based on a human rights approach. The distinctions are depicted in Table 1.1.

How might these differing sets of assumptions help or hinder the atrocity prevention agenda? To examine this question, this chapter begins by looking at the use of mediation as it might be employed, generically, in the settlement of violent conflict, as well as its strengths and weaknesses as a preventive strategy. It then examines two recent cases in which mediation was used specifically for R2P purposes: in Kenya in 2007–08 where it was considered a success; and in Côte d’Ivoire in 2010–11 where it failed to stop the violence. Based on this comparison, it analyzes the conditions under which mediation could be effective in preventing mass atrocities and also identifies the challenges in doing so.

Table 1. Comparing human rights and mediation

Issues	Human rights	Mediation
Treatment of norm violators	Name and shame; set no precedent for tolerating bad behavior; use “sticks” to effect change	Include violators in the discussion to appeal to their interests; use “carrots” and “sticks” to change attitudes if possible
Conception of justice	Individual accountability; punishment/retributive	Fairness in the eyes of the parties; maintain relationships if possible
Theory of social change	Define the ends; design means to reach them; impose if necessary	Means matter; outcomes are more sustainable if reached in collaboration with parties

Source: Adapted from Eileen F. Babbitt, “Conflict Resolution and Human Rights: Pushing the Boundaries,” in The Handbook of Conflict Resolution, ed. I. William Zartman (San Francisco, Calif.: Sage Publications, 2008), 617.

Mediation as conflict settlement or prevention

Mediation is a process referred to in the research and policy literature as “assisted negotiation,” in which a “third party”—often an outsider in relation to the conflict—is engaged in helping the primary parties in conflict to reassess their alternatives to negotiation, generate more constructive options, and find a formulation for an agreement that meets the disputing parties’ interests.²

The strength of such a process is that the parties actively participate in the analysis of the problem and work with the mediator to construct a solution, by talking to each other directly or indirectly through the mediator to design a deal that they can accept. A successful deal is one that gives the disputing parties more than they would get without it and creates favorable conditions for the deal to be implemented.

The challenge in using mediation is the flip side of its strength— because parties must agree to a deal rather than having one imposed on them, they must be convinced that the deal is a better option than other alternatives, including the use of violence. The theory of “ripeness” argues that parties are more likely to seek a settlement when their alternatives are not good and when the armed conflict that they are waging incurs costs (political, economic, military) that they can no longer absorb.³ I. William Zartman has referred to this situation as a “hurting stalemate,” and his research showed that settlements are more likely when all sides have reached this point. His concept of ripeness includes not only the “mutually hurting stalemate,” but also the formulation of a viable agreement and the participation of leaders who can deliver the compliance of their constituents.⁴

If these conditions are not present, rewards and penalties (“carrots and sticks”) can often change the cost-benefit calculus of parties such that a negotiated agreement is more enticing than the status quo. For example, sanctions or other coercive measures can be used to increase the costs of non-agreement, or economic assistance can be offered to sweeten a potential deal. Mediators who themselves are able to offer such incentives are called “mediators with muscle,”⁵ and the use of such leverage can “ripen” the conflict for settlement. Mediators without such resources, such as the United Nations, are sometimes able to “borrow” them from other more powerful actors, such as the United States or the European Union. Mediation, therefore, is sometimes combined with other measures in tandem or in a sequence with more coercive measures. Mediation can fail when “ripening” is needed but there is no will or ability by third parties to accomplish it.

An oft-cited example of muscular mediation is that of Bosnia in 1995, when bombing by the North Atlantic Treaty Organization (NATO) and wide-ranging international arms embargoes and sanctions against Serbia were used to change the costs of continued war to the Bosnian Serbs and more especially to its president, Slobodan Milosevic. While US assistant secretary of state Richard Holbrooke’s mediation efforts brought Milosevic to the negotiating table, the NATO bombing led to Milosevic being willing to make concessions that ultimately led to the 1995 Dayton Accords.⁶

Even pressure, both positive and negative, is not a guarantee of success. One or more of the parties may still prefer the no-deal option if they believe (even if incorrectly) in their strength and ability ultimately to prevail, or if negotiation is perceived to require impossible ideological or reputational compromises. Mediators hope that they can convince the parties otherwise, but it does not always work—as evident from the lack of progress after over two years of violence and more than 90,000 deaths, in convincing President Bashar al-Assad of Syria that he must step down.

International mediation efforts geared to prevent violence are most often conducted when such violence is thought to be imminent—referred to as “operational” or “proximate” prevention. According to the oftcited report by the Carnegie Commission on Preventing Deadly Conflict:

When violence appears imminent, the responsibility for operational prevention falls mainly on those closest to an unfolding crisis. But since the parties in a crisis often cannot find nonviolent solutions on their own, the help of outsiders is necessary in many instances.⁷

The dilemma of using mediation at a crisis moment is that ripeness theory predicts that parties are more likely to seek settlement after they have had the opportunity to test their strength against each other and determine whether they can unilaterally prevail. If they learn that they cannot, they are more open to negotiation. How, then, can mediation work before that test of strength has taken place and therefore save many lives?

The two cases in this chapter are both examples of mediation used for the purpose of operational prevention with mass atrocities underway or at least looming, and thus they help explore that question. The framework for analysis, based on the preceding discussion, involves the following three steps:

•First, was there a hurting stalemate at the start of mediation? If not, did the mediator attempt to create one? This step will indicate whether the mediator tried to include all major parties in the negotiation, and whether such parties were motivated to strike a deal.

•Second, what kind of leverage was available to the mediator? How effective was the mediator in using this leverage? If motivation to negotiate and strike a deal was absent, sources of leverage could be employed to create motivation or to weaken the opposition to a deal. It will be important to determine whether carrots and/or sticks were used as leverage.

•Third, was the mediation successful at preventing mass atrocities? Success in operational prevention of mass atrocities could be determined by looking at whether levels of violence have decreased, and also at the extent to which perpetrators were held accountable and/ or otherwise deterred from committing future atrocities.

Mediation in Kenya, 2007–08

The violence following the 27 December 2007 Kenyan national elections lasted two months and resulted in over 1,000 deaths and the displacement of more than 500,000 people.⁸ Although election violence is not new in Kenya, this far exceeded predictions. As Thomas Weiss reports, “Kenya in 2007–8 illustrates the logic of R2P ‘proximate prevention.’ It was less compelling in terms of death levels and forced displacement but compelling enough by conjuring up the fear of another Rwanda while early international action still appeared feasible.”⁹

On 29 December the Election Commission of Kenya announced that the ruling Party of National Unity (PNU) had suffered major losses in the parliament while the opposition party, the Orange Democratic Movement (ODM) had received a plurality. However, on 30 December the commission announced that the presidential election had been won by the incum...