BREAKING NEW GROUND

In spite of these very real concerns and challenges, several Track 1 and Track 2 actors have begun to break new ground in combining human rights with conflict resolution work. What follows are examples of intergovernmental and non-governmental efforts to do just that.

Current approaches of the UN secretary general

At the UN in the early 1990s, the then Secretary General and his special represen­tatives (SRSGs) found themselves confronted with situations in which parties to a conflict were willing to sign peace agreements that provided leaders with amnesty for crimes committed during the war. Alvaro de Soto, a former under-secretary general of the UN and an experienced mediator, reports the following:

At the Secretariat, we began to wonder about the responsibility of a UN mediator or represen­tative of the Secretary General in such situations. We gathered a group composed largely of expe­rienced negotiators - hard-nosed, reality based peacemakers - on the one hand, and represen­tatives of human rights organizations and legal experts on the other. We discussed the issue for two and a half days for the purpose of seeing whether it was possible to reach an understanding between the two sides. Although we agreed it wasn't possible to legislate for all situations, we also agreed that it was important for any mediator acting on behalf of the Secretary General to make clear that the UN operated within a certain framework of law, and that the parties were expected to work within that framework as well. In other words, we need to draw bright lines and notify the parties that the UN could not be associated with a peace agreement that fell outside those lines - for example, by exonerating perpetrators of war crimes or crimes against humanity. If the parties decided to go ahead with such an agreement, the UN would take whatever action was appropriate to disassociate itself.

The UN Secretary General and his rep­resentatives found that their credibility was at risk when they became involved with agreements that did not explicitly deal with the accountability of individuals for the most heinous past crimes. They have therefore begun, even though not “on the record,” to operate “in the shadow of the law,” by refusing to be associated with agreements that fail to address the accountability question. In Sierra Leone, for example, this has resulted in the SRSG endorsing an agreement that provides national-level amnesty for criminal acts during the war, but that explicitly reserves the right of the international community to pursue international adjudication if the national mechanisms fail to act (O’Flaherty, forthcoming).

It is interesting to note, however, that the UN is still hedging its bets by not making these guidelines public, for fear of scaring parties away from mediation. This shows how powerful the countervailing norms are in international mediation and the limits on the leverage that third parties believe they can exercise.