Book Review – The PEACEMAKER’S PARADOX: Pursuing Justice in the Shadows of Conflict

There is no peace without justice; there is no justice without truth.

Professor Mahmoud Cherif Bassiouni

Recently, I participated in a Flash-Colloquium titled: Justice, Truth and Peace. The topic was inspired by the sage Professor Bassiouni – a giant in the field of international humanitarian and human rights law. Sadly, he left us on 25 September 2017.

The presenters were given a maximum of three minutes to speak on one of the six permutations of these three words: Truth, Justice, Peace, Peace-Justice, Justice-Truth, and Truth-Justice-Peace.

About three minutes before the start of the colloquium, I was asked to make a presentation on peace within the context of Professor Bassiouni’s refrain. I agreed, though I knew I would have to speak off-the-cuff. I began feeling uneasy when I started hearing the presentations, which ranged from the philosophical to the theoretical to the sublime (poetry). What did I really know about peace?

As I tried to think of what to say while listening to the other presenters (it is amazing what can be packed into three minutes), I recalled Voltaire’s “We owe respect to the living, but to the dead we owe only truth.” How expansive was Voltaire’s thinking when he said the living are owed respect?

Curiously, this got me thinking of Socrates, surrounded by a bunch of Athenians in togas walking in the Agora, being pressed to define peace. I began asking myself how the wise Socrates would respond. A bit silly, since Socrates, infuriatingly to his listeners, posed questions as answers, leaving it to his inquisitors to figure out the answers to their own questions. It then struck me that one potential opening salvo from this wily ancient philosopher might be: it all depends on who is being asked and under what circumstances?

This got me thinking. What if this question (what is peace within the context of Professor Bassiouni’s refrain) was posed to the innocent civilians caught in the middle of hostilities? How would they respond? And this got me reflecting on the ongoing conflicts upon which I occasionally blog. Sometimes I am critical of the actions taken by States and International Organizations (especially when they act outside the parameters of the UN Charter), while at other times I am critical of the lack of action taken (especially by the UN Security Council). I place a premium on legality – but not in the abstract. There is a need for pragmatism, for contextualization, for setting priorities, and for seeing the forest for the trees.

I then thought of my reaction to the press around 2011 as the Syrian civil war was picking-up steam – news of ruthless atrocities against innocent civilians was being reported and that amnesty for President Bashar Hafez Al-Assad would not be an option. I remember thinking: This is not good. Assad will dig in and fight to the end – not good for the innocent civilians caught in the middle.

What good is truth or justice for the innocent civilians if they are dead? If the process of working out a peace agreement is, at the outset, inflexibly predicated on there being no incentivized space-facilitating tools such as amnesties, can you realistically expect the peace process to be relatively swift and constructive? Calling for regime-change and for the prosecution and long-term imprisonment of political elites, military leaders, and their respective associates and underlings, while also expecting (demanding) cooperation and good-faith efforts from them (out of principle, or because of the need to strictly adhere to international norms, and/or to ensure justice to the victims), misjudgingly places idealism above realism.

Thus, with these thoughts floating in my head, I began my three-minute flash presentation, which in summary, went something like this:

The concept or notion of peace – even when considered within the context of truth and justice depends on the vantage point of the person grappling with it. For those caught in the middle – the innocent and helpless men, women, children, and elderly, who are trying to stay alive, to avoid becoming a statistic – peace takes on a meaning of immediacy. They are not interested in long-term solutions – the perfect peace with all the bells and whistles of accountability. They want immediate relief. The last thing they are thinking about – as bullets whisk over their heads, while they hide during sustained and indiscriminate bombings, while on the verge of being maimed, raped, gassed, or killed – is about what sort of impunity measures a peace agreement should have: whether the senior leaders and most responsible will end up at some international(ized) criminal tribunal or court, and so on. Whatever it takes to immediately stop the hostilities should be made available – even if it includes granting amnesties. The ancient Greeks were big proponent of amnesties. It was not about forgetting or forgiving, it was about being pragmatic, forward-thinking. One need only read Thucydides’ The History of the Peloponnesian War – a must for any serious student of international affairs – to see why granting amnesties was so essential. The vulnerable living neither have the luxury to quibble over legal niceties, over the finer points of what constitutes post-conflict justice, or esoteric definitions of truth. Nor are they necessarily opposed to granting amnesties to those responsible for committing the past and ongoing atrocities if it means an end to the daily hell they must endure. They care about returning to a sense of normalcy, to security, to a peaceful existence – however imperfect. So, when I think of peace, I think of these innocent, helpless, vulnerable civilians. And I say that if giving them immediate relief – peace of existence and freedom from being killed or maimed – then amnesties must be made available. Truth and justice should not enter into the equation of achieving immediate peace. First peace, then we can worry about truth and justice.

Not exactly nuanced, and no doubt myopic or simple for some – or “harsh” as one participant, an esteemed legal scholar, told me, citing Colombia as an example where victims pressed the Colombian government to incorporate robust accountability modalities, including prosecutions and incarcerations, in any peace agreement reached with the Revolutionary Armed Forces of Colombia or “FARC.”

A few days after the Flash-Colloquium, waiting for me in my email inbox was an invitation to a 9 May 2018 Book Launch and Panel Discussion in Amsterdam on Priscilla Hayner’s recently published The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict1 The Peachmaker’s Paradox: Pursuing Justice in the Shadows of Conflict, by Priscilla Hayner, Routledge, 2018, $29.95, 220 pages. – part of the Amsterdam Institute for Social Science Research (AISSR) Conflict, Security & Peacebuilding Speaker Series and co-organized by the Dialogue Advisory Group. According to the invitation, in The Peacemaker’s Paradox Hayner focuses on “the age-old problem of negotiating peace after a war of atrocities.… Those with the most power to stop a war are the least likely to submit to justice for their crimes, but the demand for justice only grows louder.” How serendipitous, and promising.

In this post I review The Peacemaker’s Paradox, setting the backdrop for the post to follow, which will focus on the panel discussion during the book launch.

Cutting to the chase, The Peacemaker’s Paradox is beyond excellent – rich with insight and solid advice for anyone involved in peace negotiations. Hayner’s formidable experience – combined with her clinical approach in dissecting past peace agreements and her thorough attention to the arguments posed by the stakeholders involved in peace negotiations – explains how (and why) she has succeeded in writing what is effectively a peacemaker’s guidebook. A guidebook not in the sense of providing a template or a paint-by-the-numbers approach to negotiating peace agreements, but a sourcebook on past peace negotiations and agreements from which lessons can be drawn upon to assist in present or future peace negotiations.

Priscilla Hayner

Hayner is no dabbler. She has been involved in several peace negotiations and is a member of the UN Standby Team of Senior Mediation Advisors. She is also the author of the highly acclaimed Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions (Routledge), published in 2001 and updated 2011.

Hayner sets out to dispel the often-heard refrains that, in peacemaking, not enough is known or that there are but a few examples from which lessons can be drawn to resolve the friction between the rigid demands for justice for crimes committed during war and the legitimate constraints and pressures faced when trying to broker a peace agreement between the warring parties. According to Hayner, these refrains are unfounded. It is not a matter of not knowing enough about peacemaking or not having enough examples from which to draw lessons. Rather, it is that peace negotiators and mediators are not drawing upon the right lessons for the existing examples, which, admittedly, may not provide an actual template, but have much to offer – provided one critically observes and refrains from adopting or adhering to inflexible positions, especially at the outset of peace negotiations. In Hayner’s words:

The sometimes overly simplified “peace vs. justice” debate, which has played out among policymakers, rights advocates, and scholars, has relied on selective accounts rather than a comparative or detailed case analysis. This narrow lens of a very few individual countries’ experiences has led to overreaching claims and presumptions that do not always hold up against the broader record to date. Some of these claims have led to quite unhelpful policy prescriptions.

Eschewing fixed views and rigid thinking on whether peace agreements should (or not) provide amnesties for the sake of consummating a peace agreement or placing a premium on accountability (prosecutions and the imposition of severe sentences of incarceration for those responsible for human rights violations and war crimes), Hayner shows us through examples that there is no one-size-fits-all approach. Nuance matters, as does timing, strategy, and context.

The recurring refrain in The Peacemaker’s Paradox reminded me of lyrics from the Rolling Stones classic: You Can’t Always Get What You Want:

No, you can’t always get what you want. But if you try sometimes you find, you get what you need

Of course, getting what is needed in peace negotiations is no easy task. Wisely resisting the siren calls to dispense prescriptions, Hayner extrapolates from case studies valuable insight on what should be considered, what may or may not work (circumstances considering), and how it may be possible (no guarantees) to achieve what is needed short-term and what is wanted / warranted long-term to achieve sustainable peace that does not sacrifice measures of accountability and punishment for the (most) guilty at the altar of peace.

The Peacemaker’s Paradox is divided in two parts with a total of 15 chapters. Part I, Peace and Justice in Perspective, is the core of the book. Here, Hayner reveals the peace v. justice paradox faced by peace negotiators and mediators, how justice features in the negotiating process through the lens of the various actors involved in or impacted by the negotiated terms of a peace agreement, and how international courts and prosecutors have played a role in the peacemaking process and to what extent their contributions have been useful or detrimental. Her treatment of the international(ized) criminal tribunals and courts, which she rightly notes “work in intensely political contexts,” is superb – devoting four chapters (primarily though not exclusively) to the International Criminal Court (ICC) on issues of impact, deterrence, prosecutorial discretion, and acting in the interests of justice. To say anything more would be a spoiler, but here is a quote which should get you thinking:

The goal of the ICC cannot be simply to target perpetrators for arrest, at any cost, ignoring other factors and setting aside local wisdom on the matter, including the views of victims. When local advocates for justice and those pushing for peace are both strongly critical of the ICC Prosecutor’s manner of engagement, then the Prosecutor should perhaps take a second look at his or her procedures, presumptions, and strategic priorities.

Throughout the 15 chapters, Hayner weaves in examples from various peace negotiations and agreements, and other relevant events in grounding her observations. This is complemented by her copious use of relevant observations by some of the leading experts that have participated in peace negotiations, justice advocates, prosecutors, and legal scholars.

Hayner brings it home in the final chapter of Part I, appropriately titled: Unraveling the Paradox – the impossibility of achieving peace and justice at the maximum level, simultaneously. Here she identifies four lessons worth pondering:

  1. Singularly and narrowly focusing on prosecuting wrongdoers and punishing them with severe prison sentences is shortsighted and inefficient if the objective is obtaining accountability and attending to the needs of victims and of society as a whole.
  2. Negotiated justice policies or arrangements evolve over time well after the agreements are signed.
  3. Justice agreements must be clearly grounded in local realities if they are to withstand legal and political pressures.
  4. Negotiations are coming to accept the reality of international justice, including the role of the ICC, leading to efforts to understand what is required and in building systems that accommodate the constraints of this reality.

With these lessons in mind and having shown how some peace negotiations and interventions by various actors have netted both positive and negative results, Hayner cautions against taking a dogmatic approach – where justice issues are inflexibly pursued without consideration of existing realities, and at the expense of achieving a peace agreement. Sagaciously she warns:

If international law made strict and universal requirements of aspirations that are neither politically feasible nor operationally realistic, it could have the effect of making negotiated peace incredibly difficult and theoretically even impossible.

Overall, Hayner’s approach to unraveling the paradox works well. It is not until she lays out the arguments expressed by others – and after examining those views in the context of what occurred before, during, and after peace agreements have been reached (or not) – that she deftly teases out any lessons learned and any gold nuggets that can be garnered for future peace negotiations. If you are looking for a cookie-cutter manual, you will be sorely disappointed. What emerges from her analysis of the examples and case studies is that there is no one approach, and that even under the best intentions – depending on how various actors act at given circumstances – peace negotiations can stall or break down (the law of unintended circumstances is ever looming). But even when agreements on justice modalities are incorporated in peace agreements, there are no guarantees that they will be meaningfully adhered or that the desired results will be achieved at the implementation stage.

In Part II, Hayner presents five case studies: Sierra Leone, Liberia, Uganda, Libya, and Colombia. All these cases are refenced in Part I, though only to the extent necessary in grounding her particular observations. Here, Hayner serves a cogent overview with sufficient detail and without getting into the weeds. Though unavoidably this results in some repletion of what we learn in Part I, it does not detract. Rather, it enhances and reinforces the points made in Part I. Presenting a holistic, albeit truncated, view of what happened in the negotiations in these case studies, Hayner adds to our understanding and appreciation of her reference to and reliance on these case studies in drawing her observations, conclusions, and in no small measure, some very useful recommendations.

Parting thoughts

Hayner’s The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict is both a tour d’horizon and a tour de force. A must-read for those interested in or working in the field of peacemaking and transitional justice.

While circumstances vary – and analogies rarely serve as iron-clad guides to action in negotiating peace agreements, post-conflict nation building, or transitional justice reforms – architects crafting the framework for peace are well served by being aware of models that have worked reasonably well in some places or have resulted in mixed outcomes or disappointingly failed elsewhere. Process matters, and as Hayner drives home, so does timing, strategy, and context.  With her astute analysis of peace agreements, the road that led to them, how well they fared at the implementation stage, Hayner enriches us in what lessons can be drawn from past peace agreements in understanding and confronting the peacemaker’s paradox with greater clarity.

Reflecting on my flash presentation on peace, I surely wish I had read The Peacemaker’s Paradox beforehand. I certainly would have been more equipped to nuance my thoughts, which, in hindsight, most likely came across as “harsh” and unaccommodating.

Read Part II – Panel Discussion on The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict


Footnotes   [ + ]

Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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