The role of human rights in peace and mediation processes

I am delighted to be part of this important discussion on human rights and mediation processes. In this world of multifaceted conflicts and increasing polarization, it is a particularly welcome initiative. I wish to thank the Berghof Foundation and its Executive Director, Andrew Gilmour, for the invitation – and especially for bringing together two communities who seldom have an opportunity to exchange on this topic in the same room: conflict resolution and mediation experts and human rights experts.  

The United Nations has a wealth of experience in engineering and facilitating peace agreements with mixed results. Some agreements have undisputedly laid the foundation for long-term peace while others had more disputed outcomes. The question, that forms the focus of today’s discussion, is whether and how human rights can help to make our peacemaking efforts more effective.

This is important because, despite the intrinsic link between human rights and conflict, human rights are still often seen as a hindrance to mediation and peace negotiation efforts, perhaps because they are perceived to constrain the political pragmatism that is often required to bring – and keep – the parties to conflict around the table.

I hope we can shed new light on the role that human rights play in formal and non-formal peace processes and show that human rights can not only form the basis for agreement to end conflict, but also help to shape and inform better mediation and negotiation processes themselves to make them more likely to achieve sustainable peace.

Human rights as the subject matter of peace agreements

It is often acknowledged that human rights violations are both a cause and consequent of conflicts. In a peace-making context, it is worth reflecting that many of the key documents in the development of the modern human rights system were either documents aimed at ending and preventing conflict or blueprints for a post-conflict settlement:

Most notably, the United Nations Charter combined and prioritized these two objectives in article 1 (1) which outlines the first purpose of the Organization, including “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which may lead to a breach of the peace.”

Therefore, it is not surprising that human rights should be part of the process to find a solution. The Charter gives us a clear mandate, and responsibility, to do so. Peace agreements serve the fundamental purpose of ending human rights violations, by ending the violence.

But ending violence is not an end in itself: peace is not the absence of violence and the UN vision in rooted in positive peace. Our prevention agenda suggests that we create foundations for durable peace to avoid the recurrence of violence and build positive peace, anchored on sustainable investments in economic and social development, rule of law based institutions as well as societal attitudes that foster peace. Human rights – meaning the full spectrum of civil, cultural, economic, political and social rights – lead us to this positive vision of peace.

That is why in efforts to advance a positive perception of human rights in mediation, facilitating a holistic understanding of human rights is critical. A holistic understanding can help mediators in their task of identifying political solutions to parties to conflict. It also goes beyond issues of legal accountability – which may often dominate mediators’ understanding of and hence hesitancy to embrace human rights – to include social, economic and cultural rights. This is an aspect that deserves greater emphasis and space in mediation processes.   

Indeed, Pathways for Peace, a study published by the United Nations and the World Bank in 2018, identified four factors that drive violent conflicts: unaddressed grievances, inequalities, exclusion as well as lack of participation in decision-making. All of these are linked to the basic human rights principles of accountability (not just in the judicial sense but also responsive and accountable governance), equality and non-discrimination, and inclusion and participation.

Despite the tension between human rights and the process of peace-making, human rights are thus central to and indispensable for peace. While mediators and conflict resolution actors may prioritize processes that give priority to solving immediate security concerns, human rights analysis and information can help them promote more comprehensive processes aimed at addressing structural violence by including a focus on social justice, political equality, and accountability for past wrongdoings.  These two approaches are intrinsically linked and can be mutually reinforcing to unveil the full potential of human rights in peace processes.

Colombia is an example of how the full spectrum of human rights permeated a peace negotiation, especially regarding economic, social and cultural rights, helping to ensure that the final agreement addressed the grievances of the whole population, not just the political actors in the conflict. The agreement was inextricably linked to the theme of human rights and justice, recognizing “respect for human rights… as a goal that must be promoted by the State.”; establishing that “economic development with social justice in harmony with the environment will guarantee peace and progress” and that “social development with equity and well-being for all will allow the country to grow.” 

Critically, the Government of Colombia and Fuerzas Armadas Revolucionarias de Colombia-Ejército Popular (FARC-EP) agreed at the very outset of the negotiations (2012) to place victims and their human rights at the heart of the peace process.  The victims’ direct participation in the Havana peace talks – something that had never occurred before in other peace processes – is said to have had a direct impact on the peace agreement’s comprehensive transitional justice system, which recognizes the importance of addressing the grievances of victims as a building block for sustaining peace.
Accountability and transitional justice are perhaps the area where peace-making most traditionally and readily embraces human rights as the subject matter of an agreement. Transitional justice is a human rights-based policy instrument that seeks to build peace by examining and addressing legacies of past human rights violations, their causes and consequences, with a view of preventing them in the future.

These are difficult but necessary processes, as my recent visit to South Sudan last month underscored. More than three years after the signing of the Revitalized Peace Agreement, full implementation of its transitional justice mechanisms – composed of a Hybrid Court for South Sudan, the Commission for Truth, Reconciliation and Healing, and the Compensation and Reparation Authority – remains to be achieved. I emphasized the importance of inclusive popular consultations on the establishment of  the Commission for Truth, Reconciliation and Healing, but also that both reconciliation and accountability are needed to help the country move forward.  

The role of human rights in shaping effective peace processes

Still, oftentimes, human rights are seen as an obstacle to peace processes, reflecting more general perceptions of human rights as confrontational, moralistic, norm-based, overly technical, or legalistic and insufficiently related to the realpolitik concerns. These perceptions should not derail our prevention ambition or downplay the essential role that human rights can play or have played in some peacemaking contexts.

In this regard, I wish to acknowledge that we in the human rights community may not always do ourselves a favour. We can sometimes be perceived as absolutists. Advancing this important agenda therefore requires efforts and adjustments on both sides, based on mutual respect, learning and understanding. We need to jointly identify how and where human rights can contribute to a society’s own roadmap towards stability and peace. The nexus we discuss today is indeed an opportunity in this regard, but will only come to fruition if we draw on our various comparative advantages and expertise, both within and outside the UN. In this regard, we at the UN has a lot to learn from organizations such as the Berghof Foundation.

In this regard, we would suggest that human rights approaches and outputs can be useful to mediators in the following ways:

First, human rights provide an alternative and more neutral language and framework that can move narratives away from denunciatory or accusatory language towards universally accepted norms whilst promoting common understandings of relevant issues and grievances associated with the conflict. A rights-based framework can also provide detailed guidance, including discretions, on how the State might best protect or fulfil certain rights, which allows economic or social issues to be framed as aspirational goals, to be progressively attained. In this context, the human rights framework could serve, at the initial point of contact, as a starting point that is agreeable to both sides.

For instance, under Martti Ahtisaari’s mediation of the Aceh peace process, the 2005 Memorandum of Understanding concluded between the Government of Indonesia and the Free Aceh Movement (GAM) included the provision that the former “will adhere to the UN International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights”. It also provided for the establishment of a Human Rights Court for Aceh as well as a Commission for Truth and Reconciliation. One could thus say that Mr. Ahtisaari combined a forward-looking approach to human rights with proposed mechanisms that aimed at ensuring a reckoning with past violations and abuses in the Aceh province. During the negotiations, Mr. Ahtisaari understood that ongoing violations in the province could make or break the peace process: He travelled to Jakarta in May 2005 to engage directly with the political and military leadership of the country and made clear that if violations continued unaddressed, “peace would come to nothing”.

Second, human rights monitoring can build confidence and bring people around the table by providing an unbiased representation of events, independent of the polarised narratives of the parties involved. Equipped with objective facts about the situation on the ground, mediators can more effectively and credibly navigate competing narratives. Allow me to again refer to the example of Colombia and specifically to the role that our country office there throughout the peace talks: This included briefing the parties during negotiations in Havana, facilitating participation of victims therein as part of a broader Colombian-UN initiative as well as contributing to the contents of the final peace agreement. The Office, with its long-standing and extensive country presence, was a trusted, impartial and well-respected partner not only to the two parties, but to the Colombian people.

Similarly, human rights can serve as a basis for starting to build consensus and trust by establishing initial agreement on specific issues of mutual concern such as detainee treatment.

Third, human rights can also be a framework for dialogue, providing a safe space for discussing prevention issues by using a set of universally-agreed legal standards of what a State can and cannot do vis-à-vis individuals under its jurisdiction. Human rights instruments and mechanisms offer the opportunity of direct engagement with State authorities and other parties with the object of ending conflict and building a new society based upon respect for human rights.

El Salvador is a case in point, and we are privileged to have Álvaro de Soto with us to elaborate on his experience. Under his able mediation to end the civil war in El Salvador, the first of several substantive agreements that the parties were able to reach agreement on, the 1990 San José agreement, was on human rights. This was de Soto’s own initiative and served to break an impasse in negotiations on the difficult topic of the status of the armed forces. The commitments in the agreement were deliberately based on the international human rights treaties to which El Salvador was a party and their respective provisions of basic human rights protection of most relevance to the conflict.

Fourth, human rights actors obtain granular information and establish valuable networks, which are often already on the ground when the peace process and mediation begin. In addition to OHCHR’s more than 100 presences across the world,¹ we also work alongside National Human Rights Institutions that themselves maintain links with numerous civil society  and community representatives.

Human rights are about engaging with people and building relationships with different counterparts. This puts human rights actors on the front line and often the ‘first on the scene’ to interact with parties well before mediators are involved. Even after mediators become involved, human rights experts will continue to exercise their mandates which require active engagement with various actors, including parties to the conflict, civil society organizations etc. In many conflict settings, mediators can thus benefit from the extensive and diverse local and national networks of human rights actors.
That is why it will be important for mediators to cultivate a deep understanding of the issues and dynamics of the conflict and human rights actors engaging in conflict contexts to adjust to the logic, structure, and dynamics of peace processes as a space for political negotiations where third parties engage the negotiators through persuasion. For example, the practice of casualty tracking in UNAMA allowed the United Nations to have an informed dialogue with the warring parties on all sides drawing on human rights information with the objective of positively influencing their behaviour.
With this potential in mind, better synergies between human rights and peacemakers could have additional value in shaping the processes that lead to sustainable peace agreements.

Human rights increased engagement with DPPA’s Mediation Support Unit

In this regard, the growing cooperation between OHCHR and DPPA’s Mediation Support Unit (MSU) is a welcome development, and I wish to thank to Asif Khan, head of MSU, for being part of this discussion today. A collaborative study is currently underway aiming to develop a better understanding of the potential role of human rights in supporting mediation efforts and peace negotiations by examining different conceptions and understandings of human rights between mediation practitioners, human rights experts, parties to the conflict and other actors involved in such processes; identifying entry points in mediation processes for human rights issues and vice versa; and finding concrete and pragmatic ways in which mediators have used human rights as a way to strengthen a mediation process. 

We hope that the project’s outcome will serve as a practical tool to support mediation strategies and assist mediators and conflict parties to advance political negotiations towards inclusive and sustainable outcomes which have at their centre the dignity and wellbeing of all human beings. And we have already seen that there are important examples where mediators themselves have already assumed this role and responsibility. Our Office is also working with MSU in the context of its project with the Executive Office of the Secretary-General on “renewing the UN approach to transitional justice”, specifically examining challenges and opportunities regarding the negotiation of transitional justice in the context of peace talks.

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While conducting this reflection today, let’s keep in mind that brokering a peace agreement does not automatically translate into greater respect for human rights; it could even be the opposite. Peace processes are important and fragile moments in the country’s life, which require a willingness to listen to the grievances of all sides. Those grievances, often rooted in human rights, and their corresponding aspirations, must be central to our efforts of finding solutions. 

Thank you.