Statssekretær Helgesen

Human Rights and Peace Negotiations from a Norwegian Perspective

Seminar i regi av Oslo krets av Advokatforeningen, Juristenes utdanningssenter, Adovkatforeningens MR-utvalg og International Institute of Humanitarian Law Sanremo, i anledning utedelingen av Nobels fredspris 9. desember 2004

• Human rights issues have a central place in most peace and reconciliation processes. Violations of human rights are normally part of armed conflict, both as a cause and a consequence. There is thus often a significant relationship between human rights abuses and armed conflicts. Although it is never easy to determine the actual causes of violent conflicts, one will often find human rights abuses, and particularly alleged discrimination against certain population groups, listed as important “root causes”. Naturally, the very same human rights issues often transpire in the context of ending armed conflicts through peace settlements. Agreements on peaceful solutions to armed conflicts are thus by necessity often built on compromises based on assessments of what was politically possible to achieve under the probably very difficult circumstances.

• The choice in many situations of armed conflict is not between a peace agreement that secures all human rights fully and a peace agreement which does not secure human rights. The choice is normally between a flawed peace agreement and continued war.

• If a peace agreement is to be sustainable over time, however, it has to provide for specific and concrete plans for securing individual human rights, and thus also for the rule of law. It is therefore important that the parties agree to include concrete references to human rights within any new legislative frameworks, as well as setting up national human rights mechanisms, including monitoring mechanisms and legal remedies.

• The role as peace mediator or facilitator provides a good opportunity to work closely with the parties in a conflict to prevent violations of human rights and international humanitarian law. For example, the facilitator may be well placed to give concrete advice regarding access to relevant know-how in these areas.

• Raising questions related to human rights can have a positive effect because it is a way of focusing on fundamental, overriding international ethical and legal norms that the parties must take into account in their efforts to find durable solutions.

• When acting as an impartial third party facilitator, it is, however, often not possible to simultaneously play the traditional role of outspoken human rights advocate. It is important to recognise and to respect the fact that different actors must play different roles in a conflict or post conflict situation. The NGO community, academics and others must make sure there is a constant pressure on the parties to adhere to human rights and humanitarian law standards. It is, however, practically impossible to ensure respect for human rights in situations of armed conflict. Peace facilitators and negotiators must therefore first and foremost assist the parties towards political solutions which will end and prevent violence.

• Rather than being a problem human rights may afford parties an opportunity to improve confidence and to put in place building blocks for a peaceful solution. Ending war and building peace will inevitably be the most efficient way of improving human rights situations. To Norway it will always be important to have a holistic policy in the fields of peace, reconciliation, democracy and human rights.

Sri Lanka:

• Many aspects of the human rights situation in Sri Lanka have greatly improved since the parties entered into a mutual cease-fire agreement in Sri Lanka in February 2002, with Norwegian assistance:
• • Compared with the situation during the fighting, thousands of lives - including of civilians - have been saved during 32 months of cease-fire. The forced displacement of millions of IDPs and refugees from the north and east has been halted, and voluntary returns of IDPs are underway. Killings, disappearances, and arbitrary arrests of civilians by the government and the LTTE have to a large degree ceased. The lifting of an economic embargo on the north and east has dramatically increased access to basic necessities, such as medicines and building materials.
  • The parties continue to cooperate with the Norwegian-led Nordic mission monitoring the Cease-fire Agreement, whose mandate includes reporting on and helping resolve a number of human rights violations in the north and east.
  • At the same time, some serious cease-fire and human rights violations continue, such as political killings by the LTTE, attacks on LTTE cadres and sympathizers by auxiliary military forces, and recruitment of underage combatants by the LTTE.

• Again in Sri Lanka, the discussion of human rights has been central to the peace process throughout. In the six sessions of direct peace negotiations in 2002 and 2003, the parties agreed that human rights would be an important element of a final peace agreement and a new political system in Sri Lanka. The parties also agreed to discuss ways to improve the human rights situation while the negotiations were ongoing. The parties invited former Secretary General of Amnesty International, Ian Martin, to act as their joint advisor on human rights. The parties asked him to draft a plan to improve human rights protection and a proposal for strengthened human rights monitoring.

• After the suspension of the negotiations in 2003, both parties have continued to discuss human rights with Ian Martin and others experts, as well as with Norway and many donor governments. The LTTE has also included the promise of extensive human rights guarantees in their proposal for an interim administration intended to manage the rebuilding of the north and east while negotiations on a lasting solution continue. Currently, the LTTE is developing their own human rights secretariat and welcomes advise from experts including Martin, UNICEF and UNHCRC.

• Burden sharing among international supporters of peace is essential for any peace process. In Sri Lanka, the engagement of human rights actors with the efforts of the parties to address human rights has been key to making progress in this area. Continued human rights advocacy by countries and organizations also helps make clear to the parties the expectations of the international community for a peace process and peace agreement that meets international standards on human rights.

International Criminal Justice- risks and opportunities

• In my view, the establishment of international criminal justice in the form of the two ad-hoc tribunals for the Former Yugoslavia and Rwanda as well as the permanent International Criminal Court, has been one of the most significant developments in international law since the end of World War Two.

There is a need for creative thinking in the sense that we need to see how the international criminal tribunals can contribute to achieving peace. At the same time it is crucial to maintain the independence and autonomy of international tribunals.

• Most peace mediators have some experience with both the positive aspects of, and also some of the practical difficulties which come with international criminal jurisdiction, when it comes to dealing with potential war criminals, testifying in their court cases, or perhaps even having been accused of being guilty of international crimes themselves.

• There are discussion over issues like immunity or amnesty for perpetrators of genocide. This can be helpful in terms of sidelining some of the more extreme elements among a party, and get the number of people one has to deal with down. (Ex. Karadic and Mladic could not participate in Dayton because of the ICTY indictments.)

• On the other hand, there is a danger of not getting a sustainable agreement or even a cease-fire if specific persons or groups which have taken part in the conflict are not involved in the solution. It is important to remember that it is normally the people who are responsible for the war that eventually can deliver peace.

• We must therefore distinguish between, on the one hand, being able to deal with people, and, on the other hand, what we can promise them in terms of avoidance of prosecution. It should be noted that mediators hardly have had the power to grant immunity or amnesty for international crimes before the establishment of the international criminal tribunals. We must nevertheless acknowledge that international criminal jurisdiction seems to have limited the scope for potential solutions somewhat, but also that it has narrowed down the scope of moral and political dilemmas for mediators. International criminal jurisdiction is now a part of the general “tool kit” that mediators have at disposal in their work.

• Sometimes we will be faced with extreme situations, in which it is clear that a violent conflict or a violent and oppressive regime will go on, to the detriment of thousands of innocent civilians, unless certain political leaders are given some sort of way out. What then?

• Provided that this was a situation or case which fell within the jurisdiction of the ICC, there are several possibilities within the ICC Statute itself. The point of departure is of course that the Prosecutor has autonomous powers, and that the integrity of the Statute must be fully respected. The Prosecutor can, within this framework, refrain from taking action vis-à-vis certain persons. And even if action has been taken, the Security Council can decide to defer investigations or prosecution if this is considered to be necessary to maintain or restore international peace and security. It is of course not within any mediator’s power to determine what the Security Council decide, but most mediators can report to the Security Council or in other ways make their views known on such issues.

• One other central issue that has been raised is the question of confidentiality between the mediator and the parties to a conflict, and the risks of being called to testify in cases against some of these persons at a later stage. It is therefore essential that the mediator knows as much as possible about the various options for keeping the confidentiality, and that he or she can convey this to the parties. As far as I understand, it is not entirely clear whether for example the privilege-rules the ICC statute (rule 73) would cover the confidential relationship between a mediator and a political or military leader who might be a potential war criminal.

• The last issue that I want to raise is that of possible criminal responsibility for mediators. Are there situations in which mediators can, in their normal line of work, become an accomplice to war crimes, genocide or crimes against humanity? We know that there have been demands from certain NGOs that persons like Kofi Annan and other UN officials should have been charged with criminal responsibility for genocide, following the Srebrenica massacres. So far, no such claims have been taken up by any of the international tribunals.

• It is clear that anyone who participates in peace negotiations or facilitation of peace processes has a great responsibility. Difficult choices must be made, choices that might have serious consequences, both for the possibility of achieving peace in the short term and for implementing human rights and rule of law in the longer term.