SADC's peacemaking mandate is implied in its founding treaty and more so in its 1996 protocol that established its security structure, the Organ on Politics, Defence and Security Cooperation (OPDSC).7 The text of the protocol outlines a range of objectives in relation to peacemaking. This includes reference to the Organ's responsibilities to "manage and seek to resolve inter and intra state conflict by peaceful means" and that the methods employed "to prevent, manage and resolve conflict by peaceful means shall include preventive diplomacy, negotiations, conciliation, mediation, good offices, arbitration and adjudication by an international tribunal."8 Specifically, the protocol states that all mediation efforts be authorized by the SADC Summit—SADC's supreme policy-making institution, made up of the sitting presidents of its member states9 and lists the following aims: the defense and maintenance of democracy, peace, security, and stability; and that SADC exists to promote common political values and systems in its member states that are transmitted through democratic, legitimate, and effective institutions.10

SADC's mandate to mediate conflicts in its member countries, therefore, means that it can involve itself in the internal affairs of sovereign states, and hold them accountable to implementing decisions flowing from the peace agreements it facilitated. While this is a vital and even foundational matter, the SADC Treaty determines the degree of its involvement. Moreover, the compliance of member states to its agreements is treated with ambiguity and contradiction in the Treaty. To illustrate, in formal terms, members cede important decision-making powers to SADC by virtue of the fact that the Treaty gives SADC jurisdiction over the affairs of its members.11 But this jurisdiction is both limited and, more importantly, contested by the member states themselves. The implementation of all SADC decisions by member states, including peace agreements, is also affected by its principles guiding the implementation of its policies outlined in the Treaty. In particular, the concept of variable geometry. Variable geometry basically acknowledges that member states have varying levels of development and on that logic, they should be given flexibility and leeway in the implementation of SADC policies. For instance, a member state can claim that it lacks institutional capacity to implement a regional political program and effectively evade its obligations. This is a claw-back clause so countries can evoke the argument that their institutions are yet to mature to the level required to implement regional agreements. The SADC Treaty also prescribes (in Article 33) when and what kinds of sanctions the organization can impose on a member state. In practice, it has only ever sanctioned countries for being in arrears financially, but never for violating the terms of peace agreements that SADC has facilitated.

SADC's mediation structure, formally called the "Mediation, Conflict Prevention and Preventative Diplomacy Structure," only started to take shape in 2010.12 It comprises a mediation support unit (MSU) located in the OPDSC Directorate, a Panel of Elders (PoE), and a mediation reference group (MRG). The MRG is meant to increase the use of mediation by SADC member states as a tool for the prevention, containment, and resolution of conflict by peaceful means; and strengthen their understanding of the root causes and potential causes of conflict in SADC countries. This explains the decision to staff it with officials from member states. However, the PoE is not yet operational. Diplomatic engagements by member states fill its gap. Once operational, it will be comprised of five members who are highly regarded political, civic, or religious leaders. Fifty percent of these are supposed to come from the governmental sector and the rest from the non-governmental sector. This structure is semifunctional, and SADC has maintained its reluctance to formally include non-state actors in its mediation processes.

## Trends in SADC Mediation in Zimbabwe, Lesotho, and Madagascar

#### *Zimbabwe*

In its early mediation efforts, SADC took a case-by-case approach, relying on political leaders and individual countries appointed as its mediators to make decisions instead of SADC as a collective entity. Generally, SADC mediation interventions can be grouped into three fluid categories: (i) those concerning election-related disputes, as were the case in Zimbabwe and Lesotho in 2007; (ii) those assisting a country or conflicting parties to overcome a political impasse; and (iii) those where a military has sought to usurp power, as was the case with Madagascar's 2009 coup and Lesotho's coup attempt in 2014. In all three categories, the legitimacy and legality of political power was an important conflict-causing factor. SADC applied relatively different approaches and resources to those conflicts, depending on the mediation actors, the country's geostrategic features, and its own capacities.

The SADC mediation in Zimbabwe took place in two stages. The first was in March 2007 when the SADC Summit mandated President Mbeki of South Africa to "facilitate dialogue between the opposition and government" following an international outcry over a police crackdown on opposition activists in Zimbabwe. SADC was reluctant to intervene, having agreed publicly that the election crisis was essentially a result of the need for land redistribution, and therefore caused by Western sanctions.13 There was no mention of the political, governance, and security issues that were apparent in the overt violence that characterized Mugabe's rule. The initial Mbeki involvement was thus narrowly focused on institutional conditions for the next round of elections in 2008. As such, issues like the brutal violence orchestrated by Zimbabwe African National Union-Patriotic Forces (ZANU-PF) forces nationwide to tip the election in its favor, and the evolving humanitarian crisis impacting on the electorate, were neglected.14

A first outcome of the Mbeki talks was registered five months into the negotiations. The talks agreed to a constitutional amendment— Constitutional Amendment No. 18, which was subsequently adopted by the Zimbabwean Parliament. But Michael Aeby argues that ZANU-PF drafted the amendment unilaterally. The amendment altered the presidential term from six to five years, and reduced the parliamentary term by two years. The Amendment also empowered the Zimbabwe Electoral Commission (ZEC) to redefine constituency boundaries, but subject to parliamentary approval before elections could take place.15 Mugabe also deliberately set an early date for the election in 2008, and Mbeki downplayed the concerns of the opposition Movement for Democratic Change (MDC) about both the unilateral constitutional amendment and the early election date. Mbeki also downplayed these concerns in his reports to the SADC Organ, which consequently emphasized procedural and not substantive issues. Aeby concludes that this was a major reason why SADC accepted that early elections could be held with only minimal reforms in place.16

The March 2008 elections took place in an environment of limited external scrutiny. Eldred Masunungure explains that the government had refused to accredit "unfriendly" foreign observers. The military had overtly taken over and had become the arbiter of Zimbabwe's fate during this period.17 The first election results that began to trickle in showed that ZANU-PF had lost to the MDC in its main constituencies. The electoral commission then stopped announcing results and froze them for five weeks. SADC remained non-intrusive, adopting a "wait-andsee" approach on how the impasse would be resolved. The results were reported to be inconclusive and a runoff presidential election was to be convened within 21 days in terms of the country's electoral laws.

The ZANU-PF government extended the period to 90 days. The period (prior to the runoff election) was characterized by violence unleashed mainly by ZANU-PF youth militia and the state security forces against opposition members and supporters. This was captured in the preliminary statement of SADC's observer mission.18 Opposition leader and Mugabe's main contender, Morgan Tsvangirai, withdrew from the race after then-SADC Chair, President Levy Mwanawasa of Zambia, had reportedly urged him to pull out. Mugabe won the elections with 85.5 percent of the vote, which SADC and African Union (AU) observers declared illegitimate. He was then sworn in again as the country's president. This pushed the AU's involvement in Zimbabwe as it effectively refused to recognize the June election results.19 The AU Summit met in Egypt from June 30 to July 2, 2008, and directed SADC to intervene to resolve the impasse, ostensibly over the illegitimacy of Mugabe's presidency. It motivated for "a negotiated solution," and expressed its support for a government of national unity.20 SADC called on Mbeki to lead negotiations over a government of national unity in Zimbabwe. The negotiations started on July 21, 2008, with the signing of a Memorandum of Understanding (MOU) by the MDC and ZANU-PF in which they committed themselves to dialogue and to concluding a Global Political Agreement (GPA). The GPA was produced in September 2008, and provided for a Transitional Government, mandated, among others, with preparing the country for free and fair elections by drafting a constitution; holding a referendum; promoting equality, national healing, cohesion, and unity; undertaking security sector reform; and reconstituting the Zimbabwe Electoral Commission, the Anti-Corruption Commission, Media Commission, and the Human Rights Commission.21

Mbeki stepped down as SADC mediator in late 2008 and was replaced by Jacob Zuma, who assumed the South African presidency in 2009. The thrust of SADC's mediation mission under Zuma from 2009 to 2013 was to push for full implementation of the GPA. But, in Zimbabwe, implementation of the GPA had run into serious difficulties, with the inclusive government seemingly backing away from meeting some of its provisions. Eventually, the Joint Monitoring and Implementation Committee (JOMIC) was set up to monitor the GPA but its structure was deeply flawed: it only comprised representatives of signatories to the GPA and ZANU-PF officials rejected moves by SADC to second its own officials to JOMIC. They believed such a mechanism would constitute interference in Zimbabwe's internal affairs. Mugabe then proceeded to call for elections in April 2013, despite widely held views that the country was not ready for elections, and that he and his party had failed to comply with the GPA.22 Nonetheless, elections took place. The election results, which the MDC deemed flawed, showed Mugabe winning 61 percent of the vote, thus securing his continued tenure as president. SADC terminated its mission in Zimbabwe as soon as it had endorsed the 2013 elections. Meanwhile, JOMIC died a natural death.

#### *Madagascar*

Madagascar was plunged into a different crisis two years into Mbeki's mediation in Zimbabwe when Andry Rajoelina toppled sitting president, Marc Ravalomanana, in a decisive coup d'état. Ravalomanana fled the country and was mostly exiled in South Africa. SADC reacted by convening an Extraordinary Summit on Madagascar led by Swaziland's King Mswati,23 who was the OPDSC Chair at the time. It eventually deployed a mission to the capital, Antananarivo. The SADC mission arrived only to find AU and United Nations (UN) missions on the ground, and tensions and confusion brewed over which organization had a genuine mandate to lead the mediation process.24 Meanwhile, SADC resolved at its summit that Ravalomanana be reinstated and threatened to use force if this was not done.25 Three months later, having made no headway, SADC shifted from a militarist posture to a mediatory one.26 It decided to establish a mediation team led by former Mozambican President Joaquim Chissano, while the AU and UN appointed its own mediators. The leadership incoherence between the three organizations was later resolved: the AU and the UN dissolved their mediation team and SADC became the sole mediator to the crisis. The backlash was soon felt by the SADC mediation team on many fronts. Foremost was that the team was relatively small and the new regime had exploited the leadership coordination quarrel by using the time to entrench itself into government.

The SADC mediator's approach was to reach a compromise between the political elites and it facilitated negotiations that resulted in a powersharing accord.27 Under the accord, Ravalomanana would not be reinstated as outlined in SADC's initial communiqué. Instead, an interim, inclusive government, led by Rajoelina, would be set up to oversee a 15-month transitional period and elections. Laurie Nathan argues that at this stage, Chissano's deviation from the principled position of the Summit derived from an assumption that he was providing for inclusivity, consensus, and compromise.28 But, the accord failed to resolve the crisis and Chissano persevered with the mediation. In January 2011, Chissano produced a roadmap that entailed another major compromise of democracy.29 The roadmap allowed the coup perpetrators to contest elections and denied this opportunity to Ravalomanana, who was barred from returning to Madagascar until the new government decided that a favorable political and security climate existed. Local diplomats concluded that Chissano had capitulated to the junta.30

SADC removed Chissano as the mediator and insisted that Ravalomanana be free to contest the poll. Over the next 18 months, SADC mediators were unable to secure the compliance of the regime. In 2012, the SADC Summit backed down and adopted the "ni-ni" solution, under which neither Ravalomanana nor Rajoelina would run for president.31 The two politicians eventually agreed to this. SADC then set up a liaison office in Madagascar in April 2012 to support mediation activities in the country. But it was too little, too late. The country held elections in late 2013, but has since struggled to stabilize its government and implement economic reforms owing to a lack of institutionalized democracy and governance mechanisms.32 Some of the most pressing challenges that remain include a lack of civilian authority and control over the security forces; human rights abuses, including arbitrary or unlawful killing; a lack of judicial independence; and restrictions on freedom of speech and press.33 In September 2015, SADC sent a "Special Envoy's advance team" to Madagascar for five days with staff from its MSU. The Mission submitted its report with findings and recommendations to SADC, some of which were that Madagascar's former heads of state were a divisive group, and indicated unconditional willingness to work with the SADC Special Envoy to address existing differences among themselves; and to provide the necessary guidance and support to the national reconciliation process. This conclusion proved that the initial mediation process had gone awry along the way and that there was a need to focus more on the substantive aspects of the mediation, as opposed to concentrating exclusively on the procedural ones.

#### *Lesotho*

Similar to SADC's past interventions in Lesotho, its intervention in the country's political crisis from 2014 was precipitated by a coup attempt. However, the veracity of the coup attempt was contested in Lesotho and SADC evaded the matter altogether, fanning the flames of the crisis during that time. Despite varied accounts, what later emerged through careful documentation and investigation is that in August 2014, Lesotho's Prime Minister, Thomas Thabane, asked for a military intervention from SADC, having reported an attempted military coup in his country that forced him to flee to South Africa. What transpired was that the country's army general at the time, Tlali Kamoli, had defied orders to leave office, and was later believed to have orchestrated plots to assassinate the Prime Minister, some high-ranking military officials, and politicians not aligned with him. This compelled Thabane's exile to South Africa, along with other opposition and security officials. The Prime Minister's request to SADC for a military intervention was not granted. SADC eventually downplayed the coup allegation despite the apparent tensions surrounding a politicized and partisan security apparatus the issue had brought.34 These issues were well known to South Africa and SADC. The 2014 intervention would be the organization's fifth in the country's history. As such, South Africa has both witnessed and been involved in mediating Lesotho's cyclical conflicts since its independence in 1966. All share a common heritage of faltering democratic rule, coups, and coup attempts that have all undermined state capacity and legitimacy for generations. It goes without saying that Lesotho's conflict equation exhibits some common and consistent features: it follows or is precipitated by power struggles in the military, power struggles within governing parties, or a change in government.35

Following SADC's rebuff of the coup allegation, it appointed then-South African Deputy President, Cyril Ramaphosa, to act as a SADC facilitator in Lesotho. His specific mandate was to "facilitate the restoration of political and security stability in the short and long terms."36 SADC deployed an observer team to Maseru, known as the SADC Observer Mission in Lesotho (SOMILES), made up of police officers and military personnel from various member states. The peace process facilitated by Ramaphosa resulted in an agreement in October to schedule snap elections in 2015. Six months after the reported attempted coup, Lesotho held its snap elections, which the SADC facilitator promoted as a solution to the political crisis triggered in 2014.

The preference for this solution may have been the political backdrop to the coup attempt. The country's first coalition government elected in 2012 had collapsed, with parliament being suspended for several months. One of the major parties in the collapsed government signed a new alliance with the opposition and within the same month the coup attempt was reported. While there were legitimacy issues to do with the collapse of the governing coalition, there was nothing that suggested that Ramaphosa treated the attempted coup as an unconstitutional change of government. The elections in February 2015 produced a hung parliament and, just as in 2012, the various parties negotiated coalition alliances. The result was a new government headed by Pakalitha Mosisili, the country's long-serving prime minister until 2012 and leader of the opposition in the 2014 parliament. SADC officially closed the SOMILES mission in Lesotho in April 2015 after what it referred to as "successful elections."37 Ramaphosa submitted a report to the new government, outlining a number of observations and recommendations for the way forward.

The recommendations were contained in the "Proposal on Constitutional and Institutional Review for the Kingdom of Lesotho" prepared by the SADC facilitating team. But in the months to come, the new government backtracked on all of the SADC decisions agreed prior to the elections, including electoral reforms. As soon as it assumed power, the Mosisili government reinstated Kamoli, and staged a witch-hunt of opponents and dissidents. This included arresting some military officials for an alleged mutiny whose timing coincided with Thabane's prior allegation of a coup attempt in 2014. As part of these arrests, the country's former military chief appointed by Thabane in 2014, Lieutenant-General Maaparankoe Mahao, was killed by his peers in an alleged attempt to arrest him for mutiny. Fifty other soldiers were incarcerated while awaiting trial. Mosisili asked SADC to help establish the circumstances surrounding Mahao's death.38 SADC appointed a ten-member commission, led by the Botswana High Court Judge Mpaphi Phumaphi, to investigate the full scope of Lesotho's instability. The Mosisili government vehemently rejected the commission's report, and it became a source of diplomatic tension between the government and SADC. It was even challenged in Lesotho's High Court by one of the military top brass allegedly involved in Mahao's killing. In addition, senior government officials bluntly stated that the commission's findings would not be binding, and that the whole endeavor was an exercise in futility.39

Led by Botswana as chair, SADC later threatened Lesotho with suspension if it were to refuse to abide by the Commission's recommendations. The recommendations under security reforms were controversial, as they challenged the narrative of both the 2014 coup and the 2015 charges of mutiny under Mosisili, and his reinstatement of Kamoli. The SADC Commission of Inquiry particularly described the latter as a "polarizing character within the Lesotho Defence Force," and recommended his removal as army chief. The Commission also found no basis for the alleged mutiny, and recommended the immediate release of the incarcerated soldiers.40 Following months of impasse and standoff between the Lesotho government and SADC, the Lesotho government accepted the Phumaphi recommendations on condition that it would develop its own reforms that would be compatible with Lesotho's laws. Part of the recommendations accepted included reforms to its electoral system, the constitution, security structures, and public service aimed at depoliticizing government administration. On the security front, the government announced Kamoli's retirement and his deputy as the new head of the Lesotho Defence Force.

In March 2017, Mosisili lost a no-confidence vote in parliament. Instead of handing over power to the opposition, he responded by dissolving parliament and calling fresh elections. So, essentially, between receiving the SADC Phumaphi report in 2015 until March 2017, no real reforms had taken place. SADC had papered over Lesotho's security crisis, treating it like a political matter to be handled by the incumbent administration. Thabane won the 2017 elections and for more than two years presided over a fragile coalition government. Somewhat predictably, the government collapsed in 2020, after Thabane became embroiled in a scandal involving the murder of his second wife in 2017 allegedly by his current wife. He was replaced as prime minister by the former finance minister, Moeketsi Majoro.

Ramaphosa's mediation in Lesotho erred in many respects, including on its impartiality, inclusivity, and its ability to address a host of proximate and underlying causes of Lesotho's recurrent conflict. These include deep polarization between the country's political actors, politicized state institutions, and the militarization of politics more broadly. This made the implementation of SADC resolutions both contentious and discretionary. By its own admission, SADC has limited capacity to monitor, evaluate, and ensure implementation of agreements that it helps to broker through mediation. According to the Organ Directorate's 2015 progress report, the implementation of mediation agreements and roadmaps by member states stood at 50 percent. Even more challenging is developing the baseline for these evaluations. The process is also inherently political as it concerns an organizational image, and the need to project publicly some modicum of consensus and progress in fulfilling its peacemaking mandate. This partly explains its claims that it has been successful in mediating conflicts in Zimbabwe, Madagascar, and Lesotho in the last decade contrary to existing research pointing to their relapse into violence and conflicts.41 Arguably, the success it refers to relates exclusively to its facilitation of peace agreements.

## The Potential Contribution of the Systemic Conflict Transformation Framework to SADC Mediation

Mediation certainly takes place in extremely complex environments, and its contributions are often multifaceted and difficult to grasp. Plus, the necessary conditions for an SCT framework to be applied to a mediation process by a regional organization may discourage its use. These refer to:

Yet the application of SCT would not be "re-inventing the wheel." SADC mediation is essentially geared to building peace, despite the specific mandates given in the different countries. Building peace requires that mediation not become the monopoly of governments, but incorporate the participation of institutions outside of it.

While SADC has a formal mandate to engage in mediation as a form of peacemaking, the experiences of Zimbabwe, Lesotho, and Madagascar illustrate the pushback from elite parties in these countries on the exact mandate and responsibilities of the SADC mediator. In both Zimbabwe and Madagascar, the use of "track one" negotiations meant that there was little room for a systemic intervention using other, unofficial tracks of diplomacy. This exacerbated existing divisions within groups on the ground. In Zimbabwe, the relationship between the government and civil society organizations was deeply fragmented. ZANU-PF strongly guarded and monopolized the mediation process, in order to protect and maintain its own version of the conflict. This reflected ZANU-PF's failure to transform itself from a liberation movement into a political party, including a refusal to acknowledge the roles played by others, such as civil society organizations (CSOs), students, churches, and other non-state actors in the liberation struggle.42 As such, the mediation itself became a weak tool of conflict management from the onset, and even less of a tool to transform the relationships and structures that govern those relationships in the longer term. Ultimately, the country experienced a partial, if not pseudo-democratic, transition in 2008 and 2013, and the period thereafter conformed to Galtung's concept of negative peace.

SADC's preference for "track one" diplomacy does not deter it from using other non-official tracks in its mediation processes. While its mediation reflected a more traditional and state-centric approach in Zimbabwe and Madagascar, it later gravitated toward a more hybrid type in Lesotho. This has been described as "track one and a half" diplomacy.43 It comprises interaction between official representatives of conflicting actors mediated by a third party not representing a political institution. Jeffrey Mapendere finds that it helps address some deficiencies of "track one" diplomacy, and directly influences power structures without being driven by governmental political agendas.44 In all three cases, agreements were facilitated without a fundamental transformation of relationships for purely pragmatic reasons. There was no stated transition from mediation to post-conflict processes, and the agreements were left to self-implementation. This changed somewhat for Lesotho when SADC set up a commission of inquiry to help facilitate long-term transformation as understood by many. The snag, however, was that the viability of the process was subject to the executive control of that country.

## Key Recommendations

of diplomacy. Countries have numerously invoked domestic jurisdiction over SADC processes, or lament SADC's involvement in their affairs as intrusions on sovereignty. Over-investment in a single SADC mediator can amplify pushback from elite parties in these countries on the exact mandate and responsibilities.

3. *Develop a framework for engaging non-state actors*. SADC needs an explicit, consolidated policy framework for engaging non-state actors in its peace and security affairs. What currently exists is a relatively defunct memorandum of understanding between SADC and the regional umbrella body for NGOs—the SADC Council of NGOs—signed in 2008. Modalities for involving NGOs in SADC mediation are not yet clear, but these could take the form of ad hoc arrangements, loosely defined collaborations or even superficial consultations. Ultimately, the future relevance of SADC's mediation structure lies in its capacity as a strategic policy advisory and technical tool for supporting SADC to detect conflicts, prevent and manage them, and help countries implement agreements to consolidate peace.

### Notes

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/ by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

## The International Criminal Court's Impact on Peacebuilding in Africa

## *Phil Clark*

## Introduction

The International Criminal Court (ICC), the first permanent, global institution mandated to investigate and prosecute cases of genocide, war crimes, and crimes against humanity, has transformed the African peacebuilding terrain since it came into force in 2002. Over the last 17 years, the ICC has generated considerable controversy, including criticism of its impact on peace processes in Africa, the continent that—except for the 2016 opening of ICC investigations into the Russia/Georgia conflict has provided all of the Court's situations to date. Concerns over the effect of international criminal justice on African peace and reconciliation initiatives are not new, having arisen with two previous institutions, the UN International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL).1 This issue is more acute with the ICC, however, because its temporal mandate, which limits the Court to investigating and prosecuting cases after July 1, 2002, increases the likelihood

T. McNamee and M. Muyangwa (eds.),

*The State of Peacebuilding in Africa*,

https://doi.org/10.1007/978-3-030-46636-7\_14

235

P. Clark (B)

SOAS University of London, London, UK e-mail<EMAIL_ADDRESS>
© The Author(s) 2021

of the Court intervening in situations of ongoing conflict and intersecting with a wide range of conflict mitigation processes.

This chapter examines the ICC's intersections with two widespread domestic conflict resolution processes in Africa, national amnesties and peace negotiations. In doing so, it connects to two overarching scholarly and policy debates, namely the appropriateness and legality of amnesties as opposed to prosecutions for suspected perpetrators of international crimes,2 and the "peace versus justice" debate over whether the threat of prosecution imperils peace negotiations that involve high-level atrocity suspects.3 These issues coincided during the Juba peace talks between the Ugandan government and the Lord's Resistance Army (LRA) rebels, starting in 2006, one year after the ICC issued arrest warrants for the top five LRA commanders while a national amnesty for all rebel combatants was still in place. The tensions around Juba ignited the entire fields of transitional justice and peacebuilding, as witnessed in the landmark "Building a Future on Peace and Justice" conference in Nuremberg in June 2007.4 The event was held at the height of the Juba talks amid calls for the deferral or withdrawal of the ICC charges against the LRA leadership for the sake of peace. The conference was attended by the ICC Prosecutor, Registrar, and other senior Court officials, who used it as a platform to pronounce on developments in Juba.5 This included the lament by the ICC's inaugural chief prosecutor Luis Moreno-Ocampo that "we…hear officials of States Parties calling for amnesties, the granting of immunities and other ways to avoid prosecutions, supposedly in the name of peace."6

This chapter argues that the ICC has generally ridden roughshod over national choices to employ amnesties to facilitate peace negotiations and other responses to violence across Africa, including security sector reform (SSR), disarmament, demobilization, and reintegration (DDR) and truth commissions. The ICC's and its supporters' vehement insistence on a narrow brand of international criminal justice has undermined these important attempts to resolve conflict and often made peace less, rather than more, likely. This chapter focuses on the ICC's first two and therefore most developed—situations in northern Uganda and the Democratic Republic of the Congo (DRC), with secondary reference to Rwanda, South Sudan, and other conflict-affected states in Africa. The Uganda and DRC situations, analyzed sequentially below in sections dedicated to domestic amnesties and peace negotiations, highlight a range of ICC-induced problems for peacebuilding in African states. The chapter concludes with some lessons from the ICC's interventions for recrafting international criminal justice in support of the wider pursuit of peace.

### Domestic Amnesties

International criminal law is now a central feature of most peace negotiations around the world, especially those involving United Nations (UN) mediation. The UN increasingly holds that international law prohibits the use of amnesties for suspects of genocide, war crimes, and crimes against humanity and therefore insists on prosecutions within the framework of peace negotiations.7 Meanwhile, the ICC has regularly briefed international mediators about the illegality of using amnesties for this category of suspects during peace talks.8 This signifies a substantial shift since the 1998 conference in Rome that led to the signing of the ICC Statute, where many delegates expressed sympathy for the model of amnesty central to the South African Truth and Reconciliation Commission (TRC), which was underway at the time.9 Philippe Kirsch, the chair of the Preparatory Commission in Rome and later the first President of the ICC, stated that the Rome Statute purposely contains a "creative ambiguity"10 that gives substantial discretion when considering amnesties.11

As various commentators have pointed out, international criminal law does not clearly prohibit the use of amnesties for serious crimes.12 The Rome Statute does not mention amnesties, although the ICC's definition of the "genuine proceedings" by domestic institutions that would prevent ICC intervention encompasses only national prosecutions. Other international criminal law statutes and conventions meanwhile are less prescriptive or say very little about this issue. This suggests that the international legal basis for the trend against amnesties is significantly weaker than many advocates have proposed, necessitating a different set of justifications by the UN and other international practitioners for their anti-amnesty stance. Various scholars also challenge the widespread assumption that international trials inherently deter crimes and produce long-term stability and that amnesties foster impunity and ultimately undermine peace and social order.13

#### *Domestic Amnesties in Uganda*

The Uganda and DRC situations highlight various ways in which the ICC has undermined national amnesties and, by extension, a range of DDR and SSR programs that depend on incentivizing combatants' cooperation through the offer of amnesties. From the beginning of its operations in Uganda, the ICC opposed the use of the country's Amnesty Act for high-level suspects of international crimes on the grounds that it violated the Rome Statute and entrenched impunity. This opposition reached a crescendo during the 2006–2008 Juba peace talks, where the ICC Office of the Prosecutor (OTP) issued regular dismissals of the LRA's attempts to secure an amnesty for its leaders, amplified by a constant stream of press releases and communiqués by international human rights organizations.14 This section argues that the pronouncements by the ICC and its supporters belied the long-term use of amnesties in Uganda even before the emergence of the LRA; the widespread support for the Amnesty Act among everyday Ugandans, including its use for senior LRA commanders; and the tangible, positive effects of the amnesty policy.

The Amnesty Act stemmed from lobbying by the Acholi Religious Leaders Peace Initiative (ARLPI) during the 1999 peace talks between the Ugandan government, the LRA and the LRA's principal backer, the Sudanese government. The ARLPI conducted widespread consultations with northern victims' groups and concluded there was a strong desire among the population for personal and collective healing and reconciliation with the rebels.15

The impact of the Ugandan amnesty process has been substantial. To date, approximately 30,000 rebels have come in from the bush under the DDR process facilitated by the amnesty, including senior LRA commanders such as Brigadier Kenneth Banya and Brigadier Sam Kolo.16 Because of the quantifiable impact of the amnesty process, various empirical studies highlight widespread popular support for the policy.17 In 2012, the Ugandan government let the Amnesty Act lapse for the first time since its promulgation but sustained pressure from northern Ugandan civil society forced the government to reinstate the Act in 2013.18

The ICC's and its supporters' opposition to the Amnesty Act is highly problematic for two main reasons. First, these actors ignore the substantial support for the Act among everyday Ugandans. In the late 1980s and 1990s, there was considerable support for amnesty processes because of their success in disarming and reintegrating the Uganda People's Democratic Army (UPDA) and the Uganda People's Army (UPA) in 1987,19 and the West Nile Bank Front (WNBF) in 1998.20 Furthermore, as highlighted in a 2007 study by the UN Office of the High Commissioner for Human Rights (OHCHR), widespread approval for processes of amnesty, forgiveness, and reconciliation (which most respondents define discretely) emerges because many northern Ugandans view the perpetrators of violence as their own children who must be treated leniently and eventually reintegrated into the community.21 This often extends to LRA leaders such as Kony, whom many northern Ugandans consider a "child of the community" who should be encouraged through the amnesty process to halt the rebellion and return "home."22 The Uganda case thus directly challenges the oft-stated view that the use of amnesty hampers a long-term transition toward democracy. Uganda represents an example of a democratic amnesty, which resulted from civil society lobbying and widespread popular consultations, rather than government diktat. International opposition to such a democratic amnesty may therefore undermine democracy in the long run.

Second, the confusion over the applicability of the Amnesty Act whether the amnesty is still in place and to whom it applies—generated both by the ICC and the Ugandan government (which has responded to donor pressure to shift toward a more legalistic, punitive framework for transitional justice)23 has greatly undermined the Act's effectiveness in catalyzing the DDR of LRA and other rebel combatants. The Ugandan Amnesty Commission and various civil society groups have reported over the last decade the substantial reduction in combatants returning from the bush under the Amnesty Act, which they attribute directly to the perceived threat of prosecution.24 This highlights the ICC's and Ugandan government's tangible undermining of DDR as a peacebuilding process, through their continued opposition to the use of amnesties for rebel combatants.

#### *Domestic Amnesties in the Democratic Republic of the Congo*

The DRC has instituted a much wider range of amnesty processes than Uganda for a broader set of purposes. Whereas Uganda has used a single Amnesty Act, connected to an overarching DDR process for returning rebels, the DRC has passed four amnesty laws since 2002, linked explicitly to a truth and reconciliation commission (TRC) and an SSR program involving the *brassage* or "mixing" of former rebels into the national Congolese army. Concurrent to these DRC amnesty laws, an implicit amnesty policy has supported an extensive DDR program for Congo-based Rwandan rebels. Three phases of DDR since 1998 have demobilized around 35,000 mainly Hutu former combatants from eastern DRC. The majority of these fighters are members of the Democratic Forces for the Liberation of Rwanda (FDLR) and the former Rwandan army which fled across the border after the 1994 genocide against the Tutsi.25

Two important problems regarding the ICC and amnesties have emerged in the DRC. First, echoing the Ugandan situation, the Congolese government's variability on the use of amnesties—under pressure from the ICC and international human rights organizations—has weakened their effectiveness as a peacebuilding tool. Generally, the Congolese government has displayed a much greater readiness to give amnesties to senior military and rebel leaders as part of the country's SSR program than implied by its self-portrayal as an unyielding friend of international justice.26 Acting outside of the 2005 amnesty law, in 2006 the then-President Joseph Kabila pardoned Mathieu Ngudjolo and all 10,000 members of his Ituri rebel coalition, the *Mouvement Révolutionnaire Congolais* (MRC), as well as the rebel groups led by Peter Karim and Cobra Matata, in exchange for their surrender, the decommissioning of their weapons, and their integration into the Congolese army.27 As a result, all three leaders were promoted to the rank of colonel.

Such a practice was common in the lead-up to the 2006 national elections, as the government sought to minimize the impact of militia groups capable of intimidating voters and disrupting preparations for the poll. The UN Organization Mission in the Democratic Republic of the Congo (MONUC)28 supported the scheme as part of the UN's broader disarmament program in eastern DRC. Kemal Saiki, a MONUC spokesperson, defended the amnesty-for-peace deals with Ngudjolo, Karim, and Matata: "The most important thing is to bring an end to the bloodshed. Since these deals have been signed, there has not been any large-scale fighting in Ituri."29

The Congolese government's ambiguity on questions of amnesty continued when in February 2008 it arrested Ngudjolo at a military training camp in Kinshasa following an ICC warrant issued in July 2007. This amounted to a "bait and switch," with Ngudjolo lured into surrender from his rebel ranks and integrated into the Congolese army, only to be arrested and transferred to The Hague for prosecution 18 months later. While the Congolese government was widely hailed for its cooperation in arresting and transferring Ngudjolo to the ICC, its duplicity toward an amnesty recipient undermined the broader use of amnesty as an incentive for members of rebel groups to disarm.30 Interviews with former rebels from Ngudjolo's FNI and FRPI in Bunia who had been integrated into the Congolese army underscored this point. "This is the big problem with *brassage*," said one former FNI combatant: "The government gives us an amnesty, so we join the army and get a new uniform. But look what happened to Ngudjolo. He also got an amnesty but now he's in The Hague. We all wonder whether this will happen to us next."31

Second, the ICC's interventions in the DRC potentially weaken the unofficial amnesty that underpins the extensive DDR program, which has demobilized and returned tens of thousands of rebels to Rwanda. This could have jeopardized the ICC's case against Bosco Ntaganda, a Rwandan-born former Rwandan Patriotic Army (RPA) officer who in July 2019 was convicted by the ICC on 18 charges of war crimes and crimes against humanity.32 As a Rwandan national, Ntaganda—who in 2013 surrendered to the ICC via the US embassy in Kigali—could have been eligible to participate in the DDR process and thus avoid prosecution by the Rwandan authorities.

The complications inherent in the Ntaganda case again highlight the potential for fraught relations between the ICC and, in this case, a UN-supported DDR process. A key challenge for the UN and other international bodies across Africa is that many support amnesty-based SSR and DDR as well as the ICC, highlighting a problem for peace mediators and related actors in navigating the new peacebuilding terrain since the advent of the Court. Similar sentiments to those of the former Nationalist and Integrationist Front (FNI) and Front for Patriotic Resistance in Ituri (FRPI) rebels above were expressed by former Congo-based rebels in the Mutobo demobilization center in Rwanda. As one young FDLR combatant said, "We heard what happened to Bosco. He was bigger than us and did the same as we did, coming across the border. Now he's at the ICC. Is that going to happen to us too?"33

The Uganda and DRC situations highlight the ICC's outright dismissal of national decisions to employ amnesties as a central means of conflict resolution. While the two governments in question have adopted deliberately ambiguous policies on amnesties—at times persisting with them even while cooperating with ICC investigations—amnesties have continued to be highly effective in encouraging combatants to lay down their arms and to reintegrate into their home communities. The ICC has insisted on international prosecutions while viewing amnesties as a means to entrench impunity, despite their long track record as effective tools of conflict mitigation, especially in terms of DDR in Uganda and the DRC. The Ugandan and Congolese experiences also highlight that the ICC's decision to overrule domestic amnesties in the cases of high-ranking suspects has dampened the effectiveness of amnesties for lower-ranking combatants, who often believe they too will be subject to criminal prosecution.

## Peace Negotiations

This section analyzes the ICC's intersections with peace negotiations in Uganda and the DRC, which have invariably involved the fraught issue of whether to offer amnesties to high-ranking atrocity suspects. Three brief conceptual remarks are necessary to progress the "peace versus justice" debate that has dominated recent scholarly and policy discussions and to inform the empirical analysis below. First, a more helpful framing of the intersections of international justice and peace talks comes from Nick Grono and Adam O'Brien, who argue that the objectives of justice and peace, while not necessarily incompatible, are inevitably in tension.34 This counters the claim by numerous ICC officials and observers that peace and justice are always mutually reinforcing.35 Grono and O'Brien acknowledge the possibility of pursuing peace and justice sequentially but stress that some trade-off will probably be required, depending on the circumstances of particular conflict-affected societies and the nature of the proposed justice and peace interventions.

Second, it is important to recognize that what is being debated in situations such as Uganda and the DRC is rarely whether peace or justice are the desired outcomes—few actors would contest the necessity of both—but rather whether negotiations or prosecutions are the preferred processes by which to achieve these ends. A "negotiations versus prosecutions" formulation has the advantage of not preempting the result of particular mechanisms, while remaining open to the likelihood that such processes may have multiple (and even unexpected) outcomes. The "peace versus justice" debate assumes that peace negotiations produce peace and prosecutions produce justice, neither of which inherently holds. Peace talks can fail to achieve peace, just as trials can fail to achieve justice. Peace negotiations can also, if tailored in particular ways, pursue certain conceptions of justice that preclude prosecutions (including through conditional amnesties), while prosecutions can, if approached in contextually sensitive ways, contribute to peace.

Third, when analyzing the nature and impact of negotiations and prosecutions as processes, it is necessary to move beyond a fixation on the set-pieces of formal peace talks and criminal trials. A range of processes preceding, during, and following formal negotiations, as well as the prevailing environment in which they take place, are vital for understanding the impact that prosecutions have on negotiations and vice versa. Similarly, understanding the nature and effects of prosecutions involves more than an analysis of core legal practices such as investigations, courtroom arguments, and judgments. This also requires a close examination of the political, social, cultural, and economic context in which these legal processes unfold and their intersections with a wide range of other actors and mechanisms, including the national amnesty policies discussed above.

#### *Peace Negotiations in Uganda*

A central theme in the contestation over the Juba peace talks between the Ugandan government and the LRA is the role of the ICC in pushing the LRA to negotiate for peace. Various senior ICC officials and academic commentators have argued that without the threat of ICC prosecution, the LRA would never have considered negotiating with the Ugandan government.36 This argument is unconvincing in two key respects. The 2005 signing of the Comprehensive Peace Agreement (CPA) between the Sudanese government and the Sudan People's Liberation Movement (SPLM), which greatly weakened the LRA by threatening its bases in southern Sudan, occurred nine months before the ICC issued arrest warrants for the LRA leadership. While some LRA attacks continued in late 2005, the group's scope for violence was clearly curtailed by the CPA and the subsequent joint counterinsurgency against the rebels. As Ron Atkinson argues, the signing of the CPA pushed the LRA toward peace talks by forcing the Sudanese government to halt its support for the LRA, dispersing the LRA from its bases, and compelling the newly autonomous Government of South Sudan to deal with "foreign forces" including the LRA. This provided the grounds for the clandestine talks between the SPLM and the LRA that led to the Juba negotiations in 2006.37

Concerning the Juba talks themselves, debates center on whether blame for the collapse of the negotiations in 2008 should ultimately rest with the ICC. Such a perspective is widespread among many northern Ugandan civil society and community-level actors as well as in the commentary on the Juba talks.38 From the start of the talks in July 2006, foremost among the LRA's demands was the withdrawal of the ICC arrest warrants against its commanders, allowing them to take up the government's amnesty, participate in cleansing and reintegration rituals in northern Uganda and, according to some observers, secure exile in southern Sudan or elsewhere.39 The LRA's demand proved highly controversial, and the ICC stated shortly after that it would not withdraw the arrest warrants.40 Meanwhile, the government—that had initially backed the LRA's request—then claimed to support the ICC's refusal to grant it.41

Blaming the ICC solely for the breakdown in the Juba talks ignores the fact that the negotiations lasted two full years and led to the agreements on a range of highly contentious issues, all while the ICC warrants hung over the LRA leadership. This included the signing of the comprehensive political solutions agreement on May 2, 2007, providing a roadmap for addressing the root causes of the LRA rebellion; the accountability and reconciliation agreement signed on June 29, 2007, with an implementation protocol signed on February 19, 2008; the agreement on a permanent ceasefire signed on February 23, 2008; and the agreement on DDR signed on February 29, 2008. The final peace agreement which brought together all of the aforementioned agreements, however, was never signed, meaning these protocols could never be fully implemented.42 These important agreements counter the claim by Mark Kersten and others that the Government and the LRA never took the talks seriously.43

The ICC's intervention nevertheless weakened the Juba process from the outset. A structural effect of the ICC warrants was the fact that none of the five LRA commanders charged by the Court—including Vincent Otti, who had displayed an openness to negotiation during a previous process with former Ugandan government minister Betty Bigombe44 could lead the rebel delegation in Juba. Of the fifteen LRA delegates sent to Juba, only two, Colonel Lubwe Bwone and Lieutenant Colonel Santo Alit, were active commanders and had been present at failed LRA-Government peace talks in 2004, thus bringing critical experience to the Juba process. A source of constant frustration for the mediation and advisory team to the talks was uncertainty over whether the LRA delegation spoke legitimately on behalf of the leadership in the bush and had the authority to enact the agreements signed in Juba, including the cessation to hostilities.45

The ICC warrants also fundamentally shaped the tenor and substance of the Juba negotiations. During and after the two-year process, the LRA said repeatedly that it would neither sign the remaining sections of the final agreement nor countenance laying down its arms and demobilizing its forces until the ICC warrants were withdrawn.46 Especially in the early stages of the talks, the issue of the arrest warrants was a major distraction to the five-point agenda. The first 18 months of the talks, particularly on the third agenda item of accountability and reconciliation, were dominated by discussions over modalities for removing the warrants or at least pausing the ICC investigations for one year, renewable under Article 16 of the Rome Statute. The UN and other international actors with access to the Juba negotiators stressed consistently that the Amnesty Act could not legally apply to the LRA commanders. This view caused anger among the LRA delegation and the Acholi civil society leadership that traveled to Juba. It also curtailed the mediators' flexibility in seeking common ground between the parties.47

Throughout the Juba process, the ICC intervened acerbically with a series of public statements, supported by various UN agencies and international human rights organizations, stating that the ICC arrest warrants must be enacted.48 These international interventions raised the temperature of the negotiations, framing various LRA proposals solely as attempts to extricate its leadership from the ICC warrants, and pressured all of the parties to narrow the parameters of substantive discussion. This amounted to significant over-reach by the ICC and its supporters and tainted the atmosphere and content of the Juba talks.49 The barbed statements by the ICC Prosecutor and other senior Court officials—particularly as the third agenda item on accountability and reconciliation was being discussed in 2007—complicated the mediators' task.50 Similar issues have arisen in other African peace negotiations conducted during ICC investigations and prosecutions, including the 2011 Doha talks between the Sudanese government and seven Darfuri rebel groups, in which amnesties were a central issue.51 While the Court was never the principal actor in catalyzing or undermining peace negotiations, it greatly stymied attempts to peacefully resolve the conflict between the LRA and the government.

#### *Peace Negotiations in the Democratic Republic of the Congo*

Since the ICC launched investigations in the DRC in June 2004, the Court has overlapped with three major peace processes in which amnesty issues featured prominently: a series of informal peace negotiations with rebel groups mediated by the president of the Congolese TRC, Rev. Jean-Luc Kuye, in 2005 and 2006; the 2008 Goma talks which concerned primarily the CNDP rebel group; and the 2013 Kampala talks, focused on the M23 rebellion. The ICC affected each of these processes differently, echoing some features of the Uganda case while diverging in several important ways.

First, the Congolese TRC incorporated an important element of peace mediation and negotiation. Article 5 of the TRC Statute broadened the commission's mandate to include active conflict resolution, described as "the prevention or management of conflicts as they occur through mediation between divided communities."52 Kuye and several TRC commissioners attempted to resolve conflict by traveling to Kisangani, Bukavu, Goma, Rutshuru, and elsewhere to talk to protagonists.53

Kuye argued that the ICC hampered the TRC's efforts because belligerents refused to confess to crimes or to cooperate with mediators for fear of evidence being used against them in criminal trials, either through the ICC or the domestic courts. "The ICC came up forcefully in our discussions with several rebel leaders, including [CNDP leader Laurent] Nkunda," Kuye said. "We would start talking to them, make good progress, then the conversation would stop. They didn't want to incriminate themselves, even when we stressed that the amnesty was in place."54 This situation echoes challenges in other countries such as Sierra Leone and Timor-Leste that have simultaneously deployed trials and truth commissions. As various commentators have argued, the threat of prosecutions in such cases often deters even lower-ranking actors from appearing before truth commissions.55

In January 2008, the Goma peace talks between the Congolese government and 22 rebel groups—but centering on the CNDP—began to show the more direct influence of the ICC, including flow-on effects from the concurrent Ugandan peace talks. The ICC had little impact on the government or rebel parties in Goma but influenced substantially the work of the international mediators. The CNDP pressed hard for a blanket amnesty that would include charges of genocide, war crimes, and crimes against humanity, arguing that the 2005 amnesty law was too restrictive in this regard.56 Several observers who interviewed the European Union (EU) and other international mediators in Goma, however, underline the "invisible presence"57 of the ICC over the negotiations, principally on the legality of amnesties for international crimes. In particular, the mediators wanted to avoid the heated contestation over amnesties and international prosecutions that dominated the Ugandan peace talks.58

The UN, however, found itself in a more complicated position, having supported through MONUC the use of blanket amnesties for the Ituri rebel leaders in 2006, discussed in the previous section, while supporting the EU opposition to amnesties for international crimes during the Goma process. Tatiana Carayannis observes that the UN found it an "embarrassment" that the final Goma agreement involved a peace deal with CNDP deputy leader, Bosco Ntaganda.59 At the time of the Goma talks, a sealed ICC arrest warrant for Ntaganda was in place (issued on August 22, 2006, it was unsealed soon after the Goma talks on April 28, 2008).60 Laura Davis argues that rumors of the ICC warrant against Ntaganda abounded in Goma and reinforced the EU's and UN's stringent opposition to amnesties for international crimes. They did not want to jeopardize possible ICC moves against Ntaganda in the way that they perceived the Ugandan Amnesty Act to have done in the ICC cases against the LRA leaders.61

Throughout 2013, the Kampala peace talks between the Congolese government and the M23 rebels—precipitated by the M23 capture of Goma in November 2012—again showed the important influence of the ICC. Echoing the 2008 Goma talks between the Congolese government and the M23's predecessor organization, the CNDP, the rebel leaders pressed hard for a blanket amnesty that would cover international crimes as well as a favorable reintegration into the Congolese army. The parties refused to sign a joint agreement and instead issued two separate declarations in Nairobi in December 2013. As a result of the talks, an amnesty law was passed in January 2014 that covered "insurrectional acts" but not genocide, war crimes, or crimes against humanity. Only 29 M23 fighters were granted amnesty under the law, while the Congolese government deemed 78 M23 members ineligible for reintegration into the Armed Forces of the Democratic Republic of the Congo (FARDC) and issued arrest warrants for 19 M23 officials at large in Rwanda and Uganda.62

Taken together, these three peace processes—the TRC dialogues in 2005–2006, the Goma talks in 2008 and the Kampala talks in 2013 highlight the various ways in which the ICC has often discouraged conflict actors to see dialogue as a means for peace and pushed mediators to eschew amnesties, even if these represent important incentives to bring belligerents to the negotiating table. These peace negotiations also underscore the variability of the UN, the Congolese government, and other important actors on whether prosecutions, as opposed to dialogue or the offer of amnesties, represent the most effective responses to mass crimes.

## Conclusion

Viewed side by side, the Ugandan and DRC cases highlight the crucial but diverse ways in which the ICC impinges on national amnesties and peace processes. Throughout peace negotiations in the two countries, the ICC was one—but never the decisive—barrier to peace, often exacerbating more fundamental challenges. That the Ugandan and Congolese governments, the UN and other international bodies that ostensibly support the ICC so regularly advocate the use of amnesties—when confronted with the need to facilitate peace talks, DDR, SSR, and truth commissions—shows the continued utility of amnesty as a means to resolve mass conflict. While the ICC has rendered the Rome Statute an unavoidable touchstone in debates over amnesty and the conduct of peace talks today, these actors are reluctant to jettison amnesty entirely and to fully embrace international prosecutions. Meanwhile, the Court's attempts to influence peace negotiations and strident opposition to amnesties—seen most vividly during the Juba talks—risk alienating actors who are directly embroiled in attempts to mitigate conflict and do not have the luxury of ignoring context and consequences.

## Key Recommendations

International policymakers and practitioners should respond in several ways to these problems produced by the ICC.

1. *Reassess and reorient prohibitions against amnesties*. The routinely stated prohibition against amnesties for high-level atrocity perpetrators—and the prosecutions-at-all-costs approach this entails reflects neither international law, as it currently holds, nor the practice of the UN and many domestic governments in Africa. There should be more explicit recognition that many of the processes favored by the UN and other international actors to resolve mass conflict, including DDR and SSR, depend on offering amnesties to combatants in exchange for their cooperation. As highlighted above, the stance by the ICC and many of its supporters that amnesties are permissible for low-level perpetrators but must be prohibited for high-ranking perpetrators belies the empirical reality that the latter also disincentivizes many low-level actors from accepting amnesties and participating in processes such as DDR and SSR. International actors must therefore refrain from anti-amnesty rhetoric and advocate instead flexibility and context-specific responses to mass crimes. This may, under certain circumstances, include prosecutions but should equally allow principled discussion over the use of conditional amnesties and other lenient forms of accountability that promote peacebuilding. One key effect of the ICC's intervention in African conflict zones over the last 15 years has been the narrowing of potential remedies available to African actors in seeking the sustainable resolution of mass conflicts. This has denied peace negotiators and other conflict mitigators the flexibility necessary to incentivize belligerents to lay down their arms and to formulate responses that address the complex causes of violence in the long term.

2. *Reinforce the role of local actors.* As part of this reorientation, international actors must also reinforce the role of local actors domestic policymakers, civil society, and affected communities—in determining the most context-appropriate and effective means to accountability and peace. Many domestic mediators during peace talks in Uganda and the DRC expressed a sense of powerlessness in the face of external insistence on ICC prosecutions. The experiences of Uganda, the DRC, and other African states highlight the overly controlling nature of international intervention—including the over-reach of the ICC into delicate domestic peace processes and the need for much greater dedication to domestic ownership. The precise contribution of the ICC to peacebuilding efforts across Africa has been often stated but rarely proven. What is much clearer is the ICC's track record of interfering directly in key processes of conflict mitigation—namely amnesties, peace talks, DDR, SSR, and truth commissions—with the net result that, over the last 17 years, the Court has made peace across Africa much tougher to achieve. The task for the ICC and international actors now is to tailor the Court's work more directly to the pursuit of peace, while minimizing its capacity to undermine other vital peacebuilding efforts.

## Notes

represents an important evolution, grounded in long experience" ("Ruleof-Law Tools for Post-Conflict States: Amnesties," *United Nations Office of the High Commissioner for Human Rights*, 2009).

Effectiveness of Civil Society Initiatives in Controlling Violent Conflicts and Building Peace: A Study of Three Approaches in the Greater Horn of Africa," *USAID/Management Systems International*, March 2001, 4–6.

26 January 2015; For further views of various civil society actors on this issue, see "War Crimes Trial May Affect LRA Defections—Analysts," *ReliefWeb*, July 29, 2011, http://reliefweb.int/report/uganda/war-cri mes-trial-may-affect-lra-defections-analysts.

403–421, 404; C. Chung, "The Punishment and Prevention of Genocide: The International Criminal Court as a Benchmark of Progress and Need," *Case Western Reserve Journal of International Law* 40, no. 1 (2007–2008): 233–240.

Musaka, "ICC Insists Kony Must Face Prosecution," op. cit.; Human Rights Watch, "Benchmarks for Assessing Possible National Alternatives," op. cit.; Amnesty International, "Amnesty International Letter to Security Council," op. cit.

62. Social Science Research Council, "Consolidating the Peace: Closing the M23 Chapter," Paper prepared on behalf of the DRC Affinity Group, December 2014, 8.

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/ by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

## Humanitarian Action and Peacebuilding: Incompatible or Complementary?

*Jens Pedersen*

## Introduction

#### *Origins of Humanitarian Action*

Humanitarian action and humanitarianism, in general, are typically considered to be part of the evolution of Western thought and have their historical foundation in 19th century European and subsequently North American conflicts. In response to the horrors of these wars, the International Committee of the Red Cross (ICRC) and the Geneva Conventions were established (1863 and 1864). Vital features of humanitarianism are not, however, exclusive to, nor advanced only in Western conflicts. For example, the duty of assisting others is prevalent in the Sakhat tradition of Islam, as it is in the laws set down in fifth-century Chinese literature.1

That said, humanitarianism within an international context has, broadly speaking, gone through several phases:

This chapter represents the personal views of the author.

J. Pedersen (B)

© The Author(s) 2021

T. McNamee and M. Muyangwa (eds.),

*The State of Peacebuilding in Africa*,

Médecins Sans Frontières (MSF), Johannesburg, South Africa

https://doi.org/10.1007/978-3-030-46636-7\_15

Humanitarian aid is founded on four key principles: humanity, independence, neutrality, and impartiality. Organizations that generally fall under the "humanitarian" category give different weight to each principle depending on their history, character, and mandate.3 The ICRC and *Médecins Sans Frontières* (MSF), for instance, focus primarily on medical care.4 Other humanitarian organizations operate across a range of activities such as education, water, sanitation, nutrition, and food security, often at the same time. The primary objective that they all have in common as humanitarian organizations is to save lives and alleviate suffering.5

Nearly all humanitarian organizations are "self-mandated;" that is, in law and practice, they are non-governmental, private organizations. The major exception is the ICRC, which is the only humanitarian organization with a clear international legal foundation and status enshrined in the Geneva Conventions.6

In recent decades, international institutions and donor countries have responded to changing international and geopolitical dynamics by seeking to merge humanitarian aid with development aid. The latter is usually aimed at reducing poverty and supporting "development"—in many guises—in accordance with liberal ideas about how poor and/or conflict-ridden countries can become prosperous and stable.7 A host of different issues—from state-building and forced migration to counterterrorism and reconciliation—have now fallen into what might be called the "humanitarian-development nexus."8 As a consequence, there has been a proliferation of so-called "multi-mandated organizations," undertaking a variety of different tasks funded by donors. These organizations tend to be less focused on populations—*saving lives and alleviating suffering*—than institutions. Increasingly, they operate in collaboration with governments—donors and donor recipients—as well as other actors, including militaries, broadly seeking the same goals.9

That the founding principles and objectives of humanitarian aid are under strain in today's conflict/post-conflict zones is beyond doubt. Nowhere is this more evident than in Africa, where peacebuilding efforts occur on an increasingly complex and contested terrain.

## Mandate Shift in Africa

Peacebuilding is often defined as one phase or sequence in a long-term process for states affected by conflict, which also comprises stability, peace support, or peacekeeping operations and, latterly, state-building.10 More loosely applied, "peacebuilding" is also used to describe the process as a whole, which in the African context has proved especially problematic in recent decades, as it often melds into the concepts of counterinsurgency and counterterrorism. The funders of peacekeeping missions generally hold that a strong state with strong institutions is desirable, since a strong state is seen to be more resilient against threats of insurgency and terror.11 For humanitarian organizations, the changing nature of peacekeeping missions has often put them in an invidious position, challenging their founding principles.

The United Nations' (UN) failure to protect civilians caught up in intra-state conflict in Rwanda and the former Yugoslavia, as well as a stronger push from UN member states for missions to contribute more to improving state institutions, spurred major doctrinal changes in peacekeeping worldwide.12 The Brahimi Report reflected this shift, with a call for stronger peacekeeping missions with expanded mandates, going beyond the hitherto "self-defense" threshold of the use of force, to allow forces to "use all means necessary to protect civilians under imminent threat of physical violence."13 The concept of "protection of civilians" was thus born and doctrinally further developed to become an integral part of multilateral peacekeeping missions in Africa.

Two additional characteristics of the shift in Africa are noteworthy: the increasingly integrated role of UN missions to blend political, human rights, humanitarian, and ultimately, statebuilding components into their function; and, more recently, multilateral peacekeeping missions that take on offensive roles that include counterinsurgency operations, and, in some contexts, counterterrorism activities.14

## The Humanitarian Bind

Historically, and principally, humanitarian action is underpinned by the legal principles of International Humanitarian Law (IHL). IHL as a part of the Geneva Conventions has for decades sought to regulate the conduct of armed conflict including but not limited to, combatants right to health care when wounded or sick, the right of humanitarian actors to access populations in conflict-affected areas, and the rights of the very same populations to receive assistance.15

Perhaps the most significant shift in humanitarian action, effected by the above changes in peacebuilding, is the emergence of what is often referred to as "humanitarian intervention."16 The blending of humanitarian and military-political interventions was spurred by doctrines such as Responsibility to Protect (R2P)17 as well as a practice of the UN approving several military interventions defined as "humanitarian" with or without UN Security Council approval. The legal foundation on which these decisions are made has been questioned, with critics variously arguing that the interventions are mere "window dressing" for imperial interests or essentially flawed, due to their selective application.18

The terrorist attacks against the United States on September 11, 2001, proved a turning point for humanitarian action, as with so much else. In the subsequent US-driven paradigm of the "war on terror," the principles underpinning humanitarian action were usurped and utilized for military and political gains, as new conflict dynamics took hold.19 No longer simply a pretext for interventions, humanitarian action and aid frequently became a tool to garner popular support in counterinsurgency and counterterrorism contexts. The new era, exemplified by then-U.S. President George W. Bush's warning to other states and actors that "either you are with us or against us," would see NGOs described as "force multipliers" by no less than his Secretary of State, Colin Powell. This recasting severely undermined the principles and morality of IHL, and saw humanitarian aid incorporated into the "politico-military toolbox."20

With the fight against "terrorist" states or non-state actors pitched in stark, Manichean terms, and all forms of aid viewed as tools to win hearts and minds,21 traditional humanitarian actors were either sidelined or coopted. Their scope to provide assistance was also curtailed. Humanitarians found it difficult to engage and provide humanitarian aid to populations in areas which required guarantees and consent from non-state actors or areas in which foreign forces were conducting counterinsurgency operations.22 Such conflict areas include Somalia, Mali, Nigeria, Burkina Faso, the Democratic Republic of the Congo (DRC), and Mozambique, to name a few.

The various actors involved in both peacekeeping and peacebuilding in Africa today have all, in different ways—unwittingly or not—contributed to the undermining of the principled provision of humanitarian aid. Humanitarian actors have always had to contend with competing interests in the spaces in which they operate. What is new, besides altered conflict dynamics and changes to peacekeeping practice, is the introduction of new legislative frameworks that seek to strengthen the hand of states in counterterrorism contexts.23 The advent and development of increasingly restrictive counterterrorism legislation, both internationally and domestically in many countries, adds a further layer of complexity to the potential of safeguarding IHL in conflict areas.24 This sort of legislation often seeks to outlaw armed combatants and alienate potential areas they may control, which often results in entire communities being placed in legal limbo. Frequently, as in other areas of conflict, these communities may require humanitarian assistance, even more so when located in areas outside of state control. Importantly, who controls the particular area is often not decided by the resident population. Humanitarian agencies seeking to assist these communities face a legal risk due to legislation that effectively prevents any potential support reaching outlawed armed groups or communities.25 So, humanitarians are denied access to needy areas outside of state control and denied the opportunity to engage populations and armed groups.26 And when funding for humanitarian aid is contingent upon winning hearts and minds, they are compromised. This is all a far cry from humanitarians being able to assist all populations in need, irrespective of whether they might find themselves on the wrong side of an ideological or political fault line that invokes the language of insurgency or terrorism.27

It is against this historical and political backdrop that contemporary humanitarian aid's role in a number of peacebuilding case studies in Africa is analyzed below. Modern peacekeeping in Africa has morphed into a function of political objectives,28 yet increasingly these aims are at odds with the legal and foundational principles of humanitarian aid. Through the following examples, the case for separation between the different efforts and mandates of peacekeeping and peacebuilding on the one hand, and humanitarian action on the other hand, shall be made explicit.

## South Sudan

South Sudan is an example of a large peacekeeping mission whose mandate has evolved in a significantly changing context. The United Nations Mission in Sudan (UNMIS) was established following the signing of the Comprehensive Peace Agreement in Sudan, between the government of Sudan and the Sudanese People's Liberation Movement/Army (SPLM-A). It was established as a traditional peacekeeping mission, tasked with overseeing a peace agreement, monitoring and verifying security arrangements, support for humanitarian assistance and protection of human rights, as well as providing political support to the parties. This classic peacekeeping mission ended with the independence of South Sudan in 2011 and UNMIS changed to UNMISS, the United Nations Mission in South Sudan.29 The change in mission, mandate, and role of peacekeeping was significant, not only due to the independence of South Sudan, but also because UNMISS's mandate was extended from the consolidation of peace and security to state-building—helping to establish conditions for development and the capacity of the newly independent government to govern effectively and democratically.

This shift rendered the peacekeeping mission both an implementer and supporter of the newly-created independent government. This in itself, was not an undesirable function and role, but one that subsequently and ideally necessitated the need for a separation between humanitarian action and peacebuilding. Prior to a severe breakdown in security in 2013, when South Sudan descended into large-scale civil conflict,30 the country had been affected by several outbreaks of armed conflict between government forces and non-state actors. Within its mandate of consolidating peace and security, yet at the same time functioning as a de facto adviser and supporter to the government, UNMISS found itself unable to play an impartial role in certain cases and, in others, unable to fulfill its mandate of supporting delivery of humanitarian aid.31 Both of these were essentially in conflict with the interests of the then-government, of carrying out a counterinsurgency campaign against armed groups opposed to the government, and would subsequently impact the ability of UNMISS to fulfill various parts of its mandate.32 UNMISS was forced to weigh its priorities on the basis of its proximity to the government and its need to facilitate the delivery of aid and consolidate security.

In such a scenario, for humanitarian aid to maintain a principled and impartial posture, a certain degree of distance from a peacekeeping mission is required. But in South Sudan, the peacekeeping mission positioned itself on one side of a civil conflict, which became increasingly evident after hostilities exploded in December 2013. As the country and its armed forces fractured along various loyalties, several of its key interlocutors were now fighting each other on opposing sides of the conflict.33 As the conflict expanded and the component of state-building slid into the background, UNMISS was tested on its ability and willingness to protect civilians in harm's way during the conflict. On several occasions, UNMISS failed to do so, resulting in loss of civilian lives and, in certain areas, a collapse in civilians' faith in the neutrality of the peacekeeping mission.

Both developments had a negative impact on humanitarian organizations' ability to reach and assist affected populations. When a peacekeeping mission is no longer neutral due to association and proximity to the government, humanitarian actors, who are de facto associated with it, get tainted as well. This occurred in South Sudan, where trust between these organizations and the population—essential to delivering principled humanitarian aid—has been compromised due to the relationship with UNMISS. In South Sudan, independence and separation from actors in the conflict *and* from the peacekeeping mission, becomes imperative. As the conflict evolved, UNMISS opened its bases for civilians seeking protection, thus providing passive protection for large numbers of displaced civilians and allowing for UNMISS bases to become de facto displacement camps.34 UNMISS was widely hailed for this, and rightly so, yet it was also continuously unable to provide more proactive protection of civilians outside the camps and was still viewed as inactive. By opening the UN sites to displaced civilians in numerous local settings, in combination with the lack of proactive protection, UNMISS opened itself to local partisan communal and ethnic dynamics, often from groups opposed to the government. On a very practical level, the need for separation is required on two distinct levels.

Firstly, when the peacekeeping mission is viewed as proximate to the government which is a party to the conflict, and secondly, when the mission is, on one hand, failing to provide protection and, on the other, when doing so, seemingly favoring certain groups. The complexity is further compounded when humanitarian organizations are required to work inside the same UNMISS compounds and bases that are host to hundreds of thousands of displaced civilians. In the former case, in the past, when UNMISS was viewed as proximate to the government, there were several instances of the mission being targeted, including the shooting down of a UN helicopter, humanitarian organizations were required to distance themselves as much as possible from the mission in order to avoid becoming a target themselves. The fear was that humanitarian organizations could be targeted either by association or by mistake, as both humanitarian agencies and the UN mission were using similar white vehicles and the large integrated UN mission also has a humanitarian component. In the latter case, of a protection of civilians that, by default, favors one particular group, humanitarian organizations working in the UN bases to provide aid to the civilians seeking protection there are often required to establish projects and provide services outside of the UN bases in order to ensure a minimum perception of neutrality and independence. This raises a real and practical dilemma of proximity for humanitarians—damned if you do, damned if you don't—when trying to navigate the complexities of impartial aid delivery in South Sudan.

### The Central African Republic

The United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA), the current peacekeeping mission in the Central African Republic (CAR), was established in 2014, to replace a regional peacekeeping mission and later an African-led mission.35 The mission has been beset by changes and uncertainty over who would fund and, thus, lead the mission, as well as concerns over the reliance on peacekeepers from neighboring countries,36 which have not been viewed as impartial by several local communities. Concurrently, and until 2016, France deployed military forces to support the African-led peacekeeping force.37

The mandate of MINUSCA focused specifically on the protection of civilians though at its core also comprised support for the facilitation of humanitarian assistance and human rights, support for security sector reform, including disarmament and demobilization of armed groups, and support for justice and the rule of law.38 As its name indicates, MINUSCA is an example of a multi-dimensional peacekeeping mission, or a multimandated mission. In addition to the challenges evident in South Sudan, the mission in the CAR is more directly involved in active military operations. In fact, most of the actual military operations are carried out by MINUSCA, as the CAR military has very limited capacity.39 With the peacekeeping mission being an active party to the conflict, humanitarian organizations struggle to maintain the principle of neutrality.

Due to the limited capacity of government, the peacekeeping mission has taken on several state functions, including a central role in supporting justice and the rule of law. It is in the process of seeking justice—investigating potential crimes and interrogating or arresting suspects/perpetrators—that a potential confrontation with humanitarian organizations, operating across the fault lines of the conflict in the CAR, lies. The mission has found itself engaged in violent conflict with armed groups,40 and at the same time "dispensing" justice. In cases where peacekeepers themselves have been killed, the mission has sought forceful access to patients in humanitarian facilities, in order to interrogate suspects in the killings. Such practice may not only violate the sanctity and safe space of hospitals and clinics, upon which humanitarian organizations rely in order to impartially treat all victims of conflict; it could also result in situations where patients are not offered the protection to which they are entitled under the law.

The question must be asked: when does the pursuit of justice infringe upon the equal protections afforded to victims and potential perpetrators under IHL? Recent experience in the CAR bears out evidence from other, similar peacekeeping missions: when the mission takes on multiple roles usually reserved for the sovereign power, like seeking justice for crimes against their own staff, IHL and, by extension, the protection of patients, receives less priority. Once again, the danger of losing neutrality—and being perceived by local populations as partial—becomes very real for humanitarians and the consequences can be very grave. In the CAR, humanitarian organizations have become a target for armed groups,41 who no longer regard them as impartial and independent. This was most pronounced when MINUSCA was tasked with supporting the elections in 2015.42 An inherently political task, in which parties are often perceived either tacitly or explicitly favoring the incumbent, the role played by MINUSCA further entrenched the perception that all organizations associated with the mission—including humanitarian—were politicized. In practice, the pursuit of justice in the killing of peacekeepers forced humanitarians to prevent peacekeepers from accessing a hospital, as investigators sought to interrogate suspects for possible involvement in the killings. In such cases, the humanitarian organization made it clear that were the UN mission to violate the sanctity of the hospital and compromise the protection of the patient, this could potentially result in the closure of the hospital. Not only would it violate the above-mentioned principles, it would likely damage the organization's independence and neutrality if armed actors were to perceive the hospital as handing over patients to an opposing group, be that the UN or someone else.

## The Democratic Republic of the Congo

The DRC offers an additional and very practical dilemma between an integrated or multi-mandated UN mission and humanitarian organizations. The United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), the current mission in the DRC, was established in 2010, replacing the previous mission, the United Nations Mission in the Democratic Republic of Congo (MONUC). The latter was established in 1999 as a peacekeeping force overseeing the Lusaka Agreement, which officially brought an end to the regional conflict that had plagued the DRC in the 1990s (its primarily domestic war lasted until 2003). Because of the changing political and security dynamics, MONUSCO was instituted with a change of focus from overseeing a peace agreement to providing support for humanitarian and human rights efforts, and to support the DRC government in its stabilization and peace consolidations efforts.43

Due to increased insecurity in the eastern parts of DRC and poor governmental military capacity, the DRC government, UN, African Union (AU), and regional countries agreed to add an "intervention brigade" to MONUSCO. The intervention brigade was established in 2013 for a one-year period, but the mandate has since been renewed on an annual basis. The brigade consists of regional troops from the Southern African Development Community (SADC), and includes infantry, special forces, and artillery battalions. The brigade is tasked with neutralizing armed groups and reducing risks to state authority and civilian security.44 The latter, in itself, represents a unique change in the role of peacekeeping and peacebuilding missions, though the UN goes to great lengths to emphasize that the expanded and offensive mandate of the intervention brigade is not a precedent for peacekeeping operations elsewhere.45

As much as there is a need for providing security in the eastern DRC, the fact that forward military operations are carried out by a multi-mandated and integrated peacekeeping force represents yet another challenge to humanitarian organizations. When the same force is tasked with simultaneously securing humanitarian assistance and fighting armed groups, the element of neutrality is long gone. In practice, the same peacekeeping force that one day supports the delivery of humanitarian aid to a specific area may well return the next day, in the same white vehicles or helicopters, only this time for a military operation targeting armed elements. This inherent contradiction between the more peaceful part of the mandate and the actual military part results in communities and armed groups being unable to tell "which UN" has shown up on a given day. For humanitarian organizations it thus becomes difficult, if not impossible, to uphold a constructive, trust-based dialogue with armed groups and communities.

Trust is the essential currency that humanitarians need to engage constructively with armed groups so humanitarian aid can be delivered on impartial, needs-based grounds. Proximity to the multi-mandated UN peacekeeping force in the DRC has been fraught with blurred lines and conflicts of interest. Unsurprisingly, in the eyes of armed groups, the peacekeeping mission has become a legitimate target, as it appears to have become in South Sudan.

The trust deficit which also affects humanitarian groups is painfully illustrated by the relative weakness of the response to the outbreak of Ebola in 2018 in the eastern part of DRC where, historically, government the UN, and humanitarians have had only a nominal presence. The response struggled with serious security incidents and attacks against the newly-arrived government actors seeking to isolate potential Ebola patients. This extended to MONUSCO, which provided military protection and security for responders to the Ebola outbreak.46 The combination of lack of trust, an approach to the outbreak that was overly focused on militarized response, and the proximity of both the government and the UN mission—who were both leading the response—put humanitarian organizations in an impossible position. Unsurprisingly, they ended up in the crosshairs. Some medical practitioners and patients were killed.47

## Mali

Many of the problems identified above are amplified in the case of Mali by the severe levels of violence against the peacekeeping mission and the counterterrorism context in which the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) operates. MINUSMA was established as a multi-mandated mission, tasked with providing the same aspects of protection of civilians, human rights, and humanitarian operations as other missions. More significant for this analysis, MINUSMA is effectively tasked with supporting state authority through various security and defense measures across the country, especially in central Mali, home to numerous extremist groups.48 Given the existence of multiple international intervention forces along with myriad armed groups, some of whom are not signatories to a 2015 peace agreement, it is not surprising that MINUSMA has experienced the highest number of casualties of UN missions worldwide.49

The complexity of the context and high number of armed groups in Mali is mirrored in MINUSMA, which is largely comprised of regional countries' contributing troops. But, almost uniquely for a peacekeeping mission in Africa, MINUSMA also boasts small contingents of troops from European countries, such as Denmark, Holland, Germany, and Sweden, while Canada and the UK have also committed forces and resources. Mali represents an important confluence of interests for these countries, ranging from counterterrorism to energy security and migration.50 Mali is of keen interest to European countries from the perspective of curbing migration to Europe.51 Alongside MINUSMA is the French military Opération Barkhane, and the European Union's training mission with the Malian military. Both are predominantly focused on counterterrorism operations in the region. MINUSMA on the other hand, is not specifically focusing on counterterrorism, though it is engaged in battles against the same groups as Opération Barkhane. While MINUSMA does not have counterterrorism as an explicit part of its mandate, in practice there is little to distinguish the mission from the forces present in Mali that are undertaking counterterrorism operations. Several contingents, hosted within MINUSMA, are in certain cases "detached" to support either the Malian or French militaries in their counterterrorism operations. Assets and personnel from the European contributors to MINUSMA are at times preoccupied with intelligence gathering, though in that process focusing more—for national security reasons—on intelligence gathering related to international counterterrorism, than that related to armed groups fighting the Malian government.52

In many respects, Mali is where the broader global discourse of counterterrorism intersects and negatively impacts the provision of principled humanitarian aid. The legal marginalization of armed groups (and by extension communities) and the associated "dehumanizing rhetoric" which characterizes the global fight against terrorism, often trumps IHL. The term "terrorist" is inherently political and sometimes subjective, and thus very open to opportunistic application. By extension, the discourse and actual conduct of the fight against terrorism, by its restrictive approach, ends up alienating entire communities in a conflict zone and cutting them off from humanitarian aid.53

The usual attendant risks for humanitarian organizations, especially related to perceived proximity to the peacekeeping mission, are complicated by the fact that some of the military contingents themselves provide "humanitarian" assistance and rely on humanitarian aid as a way of winning hearts and minds. Humanitarian assistance has been a crucial component of military operations in counterterrorism and counterinsurgency operations across the world, often in the guise of Quick Impact Projects or QIPs.54 These are intended to entice communities by providing basic services and infrastructure, in order for them either to abandon armed opposition groups, including some termed as terrorists, or to ensure preference among communities for the state or the intervening military forces.

The real consequence of providing humanitarian aid as part of a military strategy defies the principle of impartiality, as it is no longer needs, but political and military preferences that determine where the humanitarian aid is provided, to say nothing of the inherent contradiction in providing humanitarian aid at the barrel of a gun. This makes the distinction between "principled" and "military" humanitarian aid impossible, and thus indirectly cuts humanitarian organizations off from reaching communities in need, as armed groups question the motives of the entire humanitarian endeavor. This de-legitimizing of humanitarian aid consequently, and directly, prevents humanitarian organizations from providing services where most needed, and may very well make humanitarian organizations a target by armed groups. The UN's own humanitarian body the Office for the Coordination of Humanitarian Affairs (OCHA), raised this concern, acknowledging that affiliation with a party to the conflict (including the UN itself) compromises security and humanitarian access.55 Thus the complexity of the interaction between humanitarian organizations and peacekeepers is well established to the point of acknowledging it, yet its consequences remain unaddressed.

### Key Recommendations

identity. The overlapping of different roles is understandable in certain contexts, yet it remains an uncomfortable compromise. The current trend—dogmatically promoted by donors and the UN of blending peacebuilding, development, and humanitarian aid into one holistic response should be resisted. The idea of linking the various components typically arises from a noble intent, but, as acknowledged by UN OCHA in Mali and demonstrated elsewhere, principled humanitarian aid is often sacrificed where it is needed most. In the absence of a return to clearly delineated roles in conflict and post-conflict settings, the humanitarian actions will become less and less effective over time.

## Notes

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/ by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

## Peace Management and Conflict Resolution: A Practitioner's Perspective

*Ibrahim A. Gambari*

## Introduction

In order to address violent conflicts across the world, international collaboration and astute coordination are required. This is not possible without an urgent, overall enhancement of global and regional mechanisms for peace management and conflict resolution. Currently, 65 million of the approximately 7.6 billion people on earth are forcibly displaced persons (FDPs). This situation is but a symptom of protracted conflicts mainly in ten countries/areas– Afghanistan, Iraq, Syria, Burundi, Democratic Republic of the Congo (DRC), Somalia, Sudan, Colombia, the Caucasus, and the former Yugoslavia. In addition, 32 other countries have been the source of a large number of refugees and 53 countries are involved in managing internally displaced persons (IDPs).1

This chapter will discuss the broad issues of prevention, as well as mediation of conflicts, followed by a brief synopsis of three

T. McNamee and M. Muyangwa (eds.), *The State of Peacebuilding in Africa*, https://doi.org/10.1007/978-3-030-46636-7\_16

I. A. Gambari (B)

Former Head of the United Nations/African Union Mission in Darfur, and founder and former Chairman of Savannah Centre for Diplomacy, Democracy and Development, Abuja, Nigeria

© The Author(s) 2021

case studies in violent conflict—Cyprus, Myanmar, and Darfur. The subsequent outlining of key peacebuilding challenges and conclusions are drawn in part from my personal experience in the management and attempted resolution of these conflicts, principally in my former role as the Joint Special Representative of the UN Secretary-General, Chief Mediator and Chairperson of the African Union/Head of the UN-African Union Mission in Darfur (UNAMID). Other relevant experiences drawn on below are my role as UN Secretary General's Special Representative and Head of the UN Mission in Angola, and the UN Under Secretary-General/Special Adviser on Africa heading the Office, which was the focal point for promoting and coordinating international support for the New Partnership for African Development (NEPAD).

The United Nations (UN) is premised on the concept of collective security: the idea that a threat to peace anywhere should be considered a threat to peace everywhere and should be met with a collective response based on global solidarity. In reality, however, the record of the international community in conflict management and conflict resolution is mixed. On the positive side, the Human Security Report of 2005 found a 40 percent decline in violent conflicts between 1992 and 2004.2 The report attributed this, in part, to the efforts made by UN peacemaking. Nonetheless, we are all living witnesses to the mass suffering caused by prolonged ongoing conflicts in many parts of the world. Examples of failures of collective security are not hard to find.

We need to better understand the reasons for relative successes in global peacemaking, as well as conspicuous failures, and adapt our strategies and capacities in order to produce more durable, negotiated solutions. In this regard, we need to recognize that the nature of conflict—its root causes, the type of protagonists—has changed.

Three evolving conflict dynamics stand out:

Both in academia and among diplomats, there are choices and preferred approaches to conflict resolution. Opinions differ on why mediation efforts, especially for intractable conflicts, fail. My own experience suggests that the prescription of "one-size-fits-all" solutions is often to blame. Most conflicts feature complex interactions of different forces, with each requiring well-designed structures and responses that are oriented to the needs of the specific situation.

What have come to be known as "spoilers" in a peace process are an endemic problem.3 Whether real or potential, leaders of parties or movements, either within or outside a peace process, spoilers are typically thought to constitute themselves as deliberate obstacles to the peaceful settlement of conflicts and employ violence to achieve their objectives. At the same time, it is not clear whether the term "spoiler" is ascriptive or earned, whether they are homegrown or externally generated. My own experience suggests that the spoilers of today can become the partners of peace tomorrow.

Africa has the most developed regional organization in the developing world for conflict resolution and peace management. The African Union (AU) was founded in May 2001 in Addis Ababa (and launched in Durban, South Africa in 2002), as a successor to the Organization of African Unity (OAU), which came into being in 1963.4 The first OAU peacekeeping operation was in Chad in December 1981. Beset by myriad problems, and without assistance from the UN, it lasted only until June 1982. On the whole, the OAU's efforts to maintain peace and security in Africa were mostly weak and ineffectual.5 Thus, the transformation of the OAU to AU can be understood as a reinvigoration of the organization in tackling Africa's security challenges.

The AU has a Peace and Security Council, and a Department of Peace and Security, headed by a Commissioner working with (not under) the Chairperson of the African Union Commission. One of the more significant developments in the history of the AU is the formation of the African Standby Force (ASF). My experience in leading the assessment of military and civilian experts on making the ASF fully operational reaffirmed my belief in its necessity for Africa, though the challenge of creating a deployable force still remains at the time of writing.

By 2019, AU peacekeeping/peace-enforcement missions were deployed in Somalia and there was also a Joint AU/UN Peacekeeping Mission in Darfur. The latter was, until recently, the largest international peacekeeping force. At its peak and under my leadership as Joint Special Representative, the AU had about 30,000 military, police, and civilian personnel. It was also the most expensive mission, with an annual budget of between US \$1.5 billion and US \$1.7 billion.6

Finally, there is the Panel of the Wise, comprising select former statesmen and stateswomen. The Panel was created in late 2002 and became operational in 2008. It boasts several subregional counterparts. Collectively, these organs and structures are known as the AU Peace and Security Architecture (APSA).7

The AU's APSA is underpinned by the now commonly held view that there is a strong nexus between peace, security, development, human rights, and democratization. Two seminal reports bear out this key relationship, the first in 1992 by the then-UN Secretary-General Boutros Boutros-Ghali, *An Agenda for Peace*8 and the second, by his successor, Kofi Annan, *In Larger Freedom*. 9

## Cyprus and Myanmar---Lessons for Africa?

**Cyprus** is one of the longest running conflicts in the dossier of the UN. There has been both a UN peacekeeping operation deployed there since 1964, the year after hostilities broke out, as well as the Secretary-General's Good Offices Mission Role after 1974. The latter was encouraged by the Security Council following the division of the country into two hostile camps of Greek Cypriots and Turkish Cypriots—as well as the presence of Turkish troops in Cyprus.

The admission of a divided country, Cyprus, as a full member of the European Union has been a complicating factor in seeking a resolution of the conflict. The UN has remained a key third party continuously seeking a formula that would lead to a bizonal, bicommunal federal state.10 Unfortunately, each community in Cyprus has regarded the other as the "spoiler" in the peace process. That much was clear to me during my short time as UN Secretary-General's Special Envoy on Cyprus in the mid-2000s. This situation is common in Africa, where the idea of "spoilers" is bandied about, without consideration for what their objectives might actually entail. In the case of Cyprus, it is fair to say some have broader national and international objectives, while others are more limited. But, as in parts of Africa, it is an open question whether some are bent on prolonging the stalemate forever.

Nearly fifty years on, there is no tangible sense of urgency in resolving the conflict in Cyprus. It has been compared to "a padlock requiring four keys, held respectively by the Greek Cypriots, the Turkish Cypriots, Greece and Turkey." In the words of another former Special Envoy, Alvaro de Soto, who handled the dossier on behalf of UN Secretary-General Kofi Annan, the history of attempts to overcome the division of Cyprus can be measured in false dawns. One or another leader could always be relied upon to thwart the effort and yell "no!", and support from either Ankara or Athens would be withdrawn.11 The most comprehensive plan to resolve the conflict, which was presented by the UN to the parties and also had the blessing of the European Union, was put to referenda in 2004. It was approved by the Turkish Cypriots but turned down by the Greek Cypriots. More than fifteen years on, it is unclear if Cyprus is any closer to a durable solution or on the cusp of another false dawn.

**Myanmar** was once thought to be one of the world's most intractable internal conflicts, as stubborn as any long-running conflict in Africa, pitching the military versus the people. It is a country that was once beset by grave human rights abuses, and its democratic prospects in the 1990s seemed dim. The UN attempted to mobilize the support of neighboring countries and other key states through the Secretary-General's special envoys and advisors. Their role would be to assist the Government of Myanmar in implementing its Seven Steps Road Map toward democracy, announced by General Khin Nyunt in 2003, which would mean addressing the country's multi-dimensional problems (human rights, forced labor, child soldiers, humanitarian access and delay in achieving Millennium Development Goals, etc.).

The failure of past engagements with Myanmar was due to issues around its international isolation, economic sanctions, and Security Council Resolutions against the regime.

In pursuing the Secretary-General's Good Offices Role in Myanmar as the third Special Envoy, I was given a formidable set of tasks. Four main principles guided my efforts:

In line with these principles, and with support from the Association of Southeast Asia Nations (ASEAN), China, India, Japan, and others, my role was to bring the government and the opposition leaders together to commence a political process. In doing so, it was not uncommon to feel the wrath of exiled groups in Thailand, London, and the United States and some key members of the Security Council, who did not want the country's National League for Democracy and its leadership to participate in the elections, which they saw as illegitimate. I was convinced then, and proved right subsequently, that without the elections, there was not a viable path to the release of Aung San Suu Kyi and the resolution of the political deadlock in Myanmar. As it happened, the newly elected president undertook dramatic and significant reform measures aimed at promoting democracy and transforming the largely centralized economy into an increasingly market-oriented one. Myanmar subsequently moved from one positive milestone to another, including chairmanship of ASEAN and, via elections, the elevation of San Suu Kyi to a position equivalent to prime minister. However, the massacre of Rohingyas beginning in early 2018 and the consequent collapse of San Suu Kyi's global reputation illustrates how much more needs to be done to cement the democratic gains of the past decade and to reaffirm peaceful coexistence and respect for human rights in Myanmar.

## Darfur/Sudan

In 2009, the AU High-Level Panel on Darfur, led by former President Thabo Mbeki of South Africa, defined the Darfur conflict as "Sudan's crisis in Darfur." In doing so, the Panel stated that "the root of the Darfur crisis lies in the history of neglect of the Sudanese peripheries, dating from colonial times and continuing during the years of Sudan's independence."12 In other words, the conflict should not be seen in terms of identity: Arabs versus Africans, Christian versus Muslims, or North versus the South.13 Rather, and especially following the separation of South Sudan from the rest of the country in July 2011, it's a conflict over access to resources (especially water), power (largely concentrated in Khartoum) and economic opportunities. The reason so many past agreements were "dishonored" is partly down to a misdiagnosis of the problem.14 The centrality of access to water, in particular, was my main motivation as Head of the African Union–UN Hybrid Operation in Darfur (UNAMID), to organize a large international forum on Water for Peace.

Following an escalation of violence in the region and subsequent humanitarian crisis in 2003–2004, ceasefire agreements were brokered and the first contingent of military observers and protection forces were deployed. This marked the beginning of the AU Mission in Sudan (AMIS).15 Its initial success in stabilizing the situation on the ground was not followed by a Comprehensive Peace Agreement, which could have paved the way for peace and development in Darfur. The challenges on the ground were formidable: protection of a dispersed civilian population and the delivery of humanitarian assistance to over 2 million internally displaced persons and 300,000 refugees. AMIS, despite some support from international partners, could not cope. After initial resistance from the Government of Sudan, they eventually agreed to allow in UNAMID. This AU–UN hybrid mission was arguably, at the time, the most extensive collaboration ever mounted between a global and regional organization in the area of peace and security. UNAMID took over from AMIS on January 1, 2008. If anything, AMIS showed that Africa is willing to put its boots where its politics lay. And when the history of Darfur is written, the work of AMIS should be viewed as essential to averting what could have been another Rwanda.16

Stark challenges remain in Darfur today. There are still significant parties to the conflict which are not signatories to the peace process. But the current situation is vastly better than what obtained in Darfur in the 2000s. The signing of the Doha Document for Peace in Darfur (DDPD) on July 14, 2011 between the Government of Sudan and one of the armed movements, Liberation and Justice Movement, was a significant early milestone. Thereafter followed a number of positive developments, including the establishment of a Darfur Regional Authority and an international Donor Conference on Reconstruction and Development in Darfur in 2013, where over US \$3 billion was pledged. The periodic outbreaks of violence since then illustrate that more work needs to be done, especially in improving local capacities for addressing the root causes of protracted violent conflict.

In his Report on Enhancing Mediation and Its Support Activities (S/2009/189 of 8 April 2009), then-UN Secretary-General, Ban Ki Moon, made urgent recommendations on the management of conflict and achieving peace. These include:

## Key Challenges

#### *Striking a Balance Between Peace and Justice, Including Strengthening Relations Between the United Nations and the International Criminal Court*

The first challenge lies in the increased demands on the UN to both facilitate the negotiation of peace agreements and to establish accountability mechanisms. This has led us to examine the relationship between the UN and the International Criminal Court (ICC), and the interaction between UN representatives and persons indicted by the ICC. While in the long run, peace and justice are mutually reinforcing, in the short run there are often tensions between these two essential goals. As then-UN Secretary-General Kofi Annan stated before the Security Council in 2003,

We should know that there cannot be real peace without justice, yet the relentless pursuit of justice may sometimes be an obstacle to peace. If we insist, at all times and in all places, on punishing those who are guilty of extreme violations of human rights, it may be difficult or even impossible to stop the bloodshed and save innocent civilians. If we always and everywhere insist on uncompromising standards of justice, a delicate peace may not survive. But equally, if we ignore the demands of justice simply to secure agreements, the foundations of that agreement will be fragile and will set bad precedents.17

To help manage these tensions, the UN Secretariat came to the following conclusions:

i. On the relationship between peace and justice: there is no sustainable peace without justice—although they can be sequenced in time;

The preamble to the 1998 Rome Statute, which created and governs the ICC,18 highlighted that the states parties express their determination "to put an end to impunity for the perpetrators of crimes and thus to contribute to the 'prevention' of such crimes."19 The "prevention" role given to the ICC stems from the view that courts can prevent crimes through punishments that have a deterrent effect, though, to date, arguably no such punishments have been severe enough to achieve that.

My own experience leads me to believe that you do not have to choose between peace and justice; you can phase them in according to the circumstances—i.e., what the demands of peace suggest. The removal of Charles Taylor from Liberia in 2003 is a case in point. If he had not been taken out of Liberia by prior arrangement involving the African Union, the Economic Community for West African States (ECOWAS) and Nigeria, it is hard to imagine what fate may have befallen the country he led for 6 years. The peace process would probably never have gotten off the ground. And although justice may have been delayed in Taylor's case because of the imperative of peace, eventually it too would be achieved.

#### *Factoring Implementation Agreements into Mediation Efforts*

A second challenge is the need to factor implementation arrangements into the mediation process. The UN is often asked to help the parties implement agreements that were reached without its involvement, that sometimes go against fundamental UN principles, and, moreover, that offer no practical possibilities for implementation. For example, an agreement may hold unrealistic expectations of international support, or a timetable which neither party can manage. As a general rule, those institutions which are expected to support implementation should also be present, at least as an observer, during the negotiations.

### *Ensuring Strong Women's Participation in Conflict Resolution*

A third challenge is women's inclusion in the negotiation and mediation process, rather than just "civil society participation." The UN, like other governmental and inter-governmental bodies, has too few women engaged in these tasks. Although the AU and all the regional economic communities (RECs) in Africa have made laudable strides, boasting gender units and improved means of gender mainstreaming,20 to the extent that the AU declared the 2010s to be the African Women's Decade (AWD),21 the vision is yet to be realized. Studies have shown that women tend to be better at conflict management, have better listening skills, more tolerance, and empathy.22 Africa is losing out for not doing more to rectify gender imbalances in conflict resolution and mediation.

#### *Managing Spoilers Through Innovative Approaches: Inducements, Socializations, Coercion, and Leverage*

The UN does not have the luxury of not engaging spoilers—the fourth challenge—in peace processes in which the organization is involved. (How can one change their behavior without engagement?) The issue for the UN is what kind of engagement is most appropriate or capable of providing deliverables. In this regard, and with the caveat below, I endorse Stephen Steadman's broad categories of engaging spoilers.23

#### *The Inducement or Carrots Strategy*

This strategy consists of accepting all the demands of a spoiler in exchange for concessions in the peace process. These demands can include recognition or legitimacy, physical protection by UN troops, economic or political benefits. The inducement approach is the easiest strategy to implement. Unfortunately, when used improperly it can exacerbate the situation, as occured in Angola in 1992 when custodians permitted the National Union for the Total Independence of Angola (UNITA) to play a continued role in the negotiations despite resuming war. On the other hand, in Cyprus, the UN Peace Plan 2004 and the 8th of July Agreement were designed to keep the two opposing communities strictly engaged in the peace process.

#### *The Socialization Strategy*

This strategy demands that spoilers conform to a set of norms and standards to be allowed into the peace process. For socialization to be effective, norms must be fair and realistic, they must be clearly established, communicated to all stakeholders and remain consistent over time.

#### *Coercion or Stick Strategy*

This strategy relies on the threat or reality of punishment. This approach includes coercive diplomacy, the use of force, the muted withdrawal of peacekeepers or other international forces, the imposition of "no-fly" zones, and the "departing train" strategy, which is meant to convey to spoilers that the peace process will proceed with or without them. The coercion strategy requires active measures to protect the parties engaged in the peace process and to deter spoilers. The "withdrawal" strategy is not to be considered lightly, given the disastrous experience of Rwanda, where the UN mission was hastily scaled back at the outbreak of the genocide, leading to even greater loss of life.24 Needless to say, there should be no exit of UN peacekeeping operations without a clear strategy.

#### *Exercising Leverage*

A fifth challenge is the appropriate exercise of leverage in support of peacebuilding and conflict prevention. A lot has been written about sticks and carrots. I would draw attention to three types of leverage that are sometimes undervalued and therefore underutilized:

iii. Leverage in the form of "enabling resources," which can help a party to carry out its side of the bargain, e.g., assistance given to a guerrilla army to transform itself into an effective political party.

#### *Promoting Cohesion among Mediators and Good Offices through Support for a Unified Mediator*

A sixth challenge is the proliferation of actors involved in mediation. Overall this is a positive development. While the UN is the best placed to succeed in some cases, in other situations one of its partners, such as the AU, European Union, or ASEAN may have a comparative advantage. Under Chapter VIII of its Charter, the UN encourages regional organizations to assist in areas of peace and security. This can be seen in the support the UN gives to the AU and their ongoing cooperation in peace operations, which has so far proved more effective than unilateral undertakings. Ultimately, success often rests on the ability of all actors involved to unify behind a chief mediator. The proclivity of actors to "shop around" for the forum that best suits their interests is an ever-present danger in any peacebuilding environment.

Besides stature and expertise, the qualities that make up an effective chief mediator include but are not limited to: impartiality, patience, humility, and respectfulness. The chief mediator must know when to walk away if a peace process comes to a dead-end, the trust and confidence of the parties involved have dissolved, or the mediator has become the "issue" rather than the substance of the conflict.

#### *Relations with NGOs and Civil Society Groups*

At the height of the conflict in Darfur, over 300,000 people were dead and 2 million were internally displaced and living in camps, out of a total population of 7 million. Peacekeepers were tasked with facilitating the delivery of humanitarian assistance to those in need, but it was the NGOs and the wider humanitarian community who were responsible for providing for the basic needs of Darfurians in the camps. Their essential role in delivering food, clothing, education, and health assistance cannot be understated.

Insofar as the peace process, however, the place of NGOs—the seventh and last challenge—became much more complicated and contested. By design or default, they became advocates for one or other armed movements. In effect, they took sides in Darfur, as they have done elsewhere. Whenever this occurs, the UN or chief mediator is placed in an invidious position, as their role is to reconcile not take sides. Consequently, it is not uncommon for relationships with NGOs to sour or even break down. This must be avoided at all costs, however. Regular engagement with NGOs is essential; it is not optional. Without NGOs, victims of war would have no one to turn to, and their voices would go largely unheard.

## Conclusion

The Preamble of the Charter of the United Nations starts with the words: "We the People." It is a recognition that the *raison d'etre* of the world body, *i.e.*, the prevention and resolution of wars and conflict, is far too important to be left to countries and their governments alone.