Global Facilitation Network for Security Sector Reform (GFN-SSR)

Negotiating Justice: Guidance for Mediators

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What are the options for securing justice in peace negotiations? What role can mediators play in ensuring that peace agreements effectively address issues of justice? This report from the International Center for Transitional Justice and the Centre for Humanitarian Dialogue provides guidance on the parameters and policy options for justice in peace negotiations. It argues that recent practice shows that there are ways to secure both justice and peace. While much depends on negotiating parties, mediators can better equip themselves to offer advice to ensure stronger attention to justice issues in peace agreements.

Recent practice has clarified legal boundaries, minimum standards and basic guidelines on justice issues in peace negotiations. Limitations to amnesties in international law reflect current state practice in peace agreements and guide the actions of the UN and other organisations. The majority of peace agreements address issues of justice and accountability in some manner and few peace accords now include general amnesties. Successful implementation of justice provisions in an agreement depends on clarity of language, fundamental agreement on policy, a proper plan and international buy-in. Options for justice in peace agreements include criminal accountability, truth commissions, reparations, security and justice sector reform, demobilisation and integration of ex-combatants and community justice.

Further issues for mediators to consider include:

• Engaging the public in peace talks. Involving civil society and seeking broader perspectives on policy options for justice can help to strengthen an agreement and give it greater legitimacy.
• International involvement in accountability. International participants may be well placed to set out key parameters, while the international community can provide support for implementation of provisions on justice.
• Amnesties. Amnesty for serious international crimes is prohibited by international law and is likely to be widely criticised. Mediators can push for clarity on crimes covered and make clear the potential ramifications of a general amnesty.
• The International Criminal Court (ICC). The ICC may be seen as a complication in peace negotiations. Experience so far suggests that international prosecution is less problematic than feared, although it is too early for firm conclusions.

To approach controversial issues in negotiations and promote justice in peace agreements, mediators should:

• understand justice as more than amnesty or criminal prosecutions. If amnesty is raised, acceptable models should be considered, as well as non-judicial means of accountability. Mediators should aim to keep options for justice open in agreements;
• focus on institutional or legal reforms that will help to prevent future human rights abuses. Signalling intentions on security and justice reforms in an accord may lead governments to address these issues earlier and with more rigour;
• provide clear guidance on critical issues. Mediators should be clear in advising on the demands and limits of international law. They should also be clear in pointing to established best practice;
• consider when to approach the justice question. Addressing the issue before parties gain sufficient trust can lead to only limited agreement on accountability. Momentum later on in talks may help in reaching agreement on justice issues; and
• consider how detailed justice components of an agreement should be. Clauses that lack specificity risk being ignored, while detailed plans are often not possible during talks. Agreements should outline clearly main principles and policy commitments.

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