WHY CONFLICT RESOLUTION PRACTITIONERS RESIST HUMAN RIGHTS

These various differences between the conflict resolution and human rights perspectives lead each side to reject the other's agenda fairly strongly. These dynamics deserve consideration, from both directions.

Another concern from the conflict res­olution perspective comes from depending exclusively on legal rules as a guiding principle for political and social order. The advantage of such legal rules is that they make standards more clear and visible and strengthen enforcement potential. The downside is that laws can become rigid and bureaucratic, losing both resilience and effectiveness. In addition, the institutions that administer the law can become overloaded, or can be perceived as biased against some identity groups. For example, the Alternative Dispute Resolution (ADR) movement in the United States was a means for increasing the “ownership” of agreements and parties' commitment to implementation as a balance to the slow, overburdened and impersonal court system.

However, in the USA, it also became very clear that some cases were better served by using the legal process: cases with important legal precedent, or with such great power asymmetry between the parties that the weaker party could be significantly harmed by engaging in negotiation without the “protection” of the law (e.g. cases of family mediation in which physical abuse was discovered and the case was referred on to legal experts). The challenge has been to establish guidance to negotiators and mediators that helps identify such cases. From the conflict resolution perspective, finding an effective balance between the protection and the rigidity of using legal rules is a key concern.

One final reason why the conflict resolution movement has been inconsistent about, and sometimes adamantly opposed to, embracing human rights as part of their theory and practice is their belief in the imperative of voluntary participation. That is, they strongly believe that parties will be more likely to act in good faith during negotiation and carry out the implementation of an agreement if these are accomplished without coercion from a third party. Data show that mediated agreements are more likely to “stick” than agreements that are adjudicated, because the parties themselves design the terms by which they are willing to settle.

One way to create an incentive for vol­untary participation is through the perceived “impartiality” of any facilitator or mediator. Impartiality assures all of the parties to the conflict that their interests will be taken seriously in the negotiation process, and that the facilitator or mediator will not be unduly biased in communicating or attending to these interests. Without such perceived impartiality, parties in conflict are likely to opt out of a mediation or facilitation process - unless they are coerced into participation by a “mediator with muscle.” A mediator with muscle can force parties to the table and even impose an agreement (as in the Dayton process for Bosnia), but then must maintain a continuing presence to be sure the parties implement the imposed settlement.

Conflict resolution practitioners are con­cerned that parties will never voluntarily submit to a process that calls their human rights record into question. The viability of negotiation is then threatened if one or more of the primary parties to the conflict refuse to participate. For example, when Lakhdar Brahimi, as the UN Special Representative to Afghanistan, negotiated with the Afghan “warlords” to conclude the 2002 Bonn Agreement, he was criticized by international human rights NGOs for not insisting upon accountability for their past abuses as part of the negotiations. His response to this criticism was to say that his job was to stop the violence first, and that accountability would follow later in the process (Sebenius, 2003). One can infer from this that Brahimi felt he could not get the warlords to participate or to come to agreement if each knew he would be judged for his past acts.

NGOs that conduct neutral third-party processes are even more concerned about this dilemma than their Track 1 counterparts. In their view, one of the most important credentials they bring to the conflict resolution process is impartiality; they provide a “safe” venue for conflicting parties to explore options and build better understanding precisely by not pressing the parties on specific issues. If an NGO does not offer that, it is worried that its presence would not be welcome or even tolerated by the conflicting parties.

Thus, although conflict resolution scholars and practitioners profess to be no less personally committed to human rights than the human rights activists themselves, they are also mindful of the ways in which it might limit their effectiveness as peacemakers.