Published by The Lawfare Institute
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A review of Paul Williams, “Lawyering Peace” (Cambridge University Press, 2021)
There are three ways that third-party nations can approach a war: stay neutral and see who wins, help one side win, or support the parties in reaching a negotiated settlement. The third option involves a range of compromises that the parties and the international community often find unpalatable from the middle of war. Yet, more often than not, the human, political, moral, and financial costs of negotiated settlement are vastly less than those of the first two options for ending wars.
These issues are currently playing out in Ukraine. Should international actors intervene to help Ukraine win and, if so, how? Are some forms of negotiated compromise off-limits because they fail to comply with international norms on prohibition of acquisition of territory by force, or international criminal responsibility? When, if ever, does placing solutions off limits become morally indefensible given the costs of war? Who should decide when a negotiated settlement should be pressed and what the red lines for agreement should be?
Peace Processes at the Crossroads
More widely, we are in a moment when many are questioning whether peace processes are working. It has become popular to state, as if it were truth, that peace processes are “fundamentally flawed” and a new approach is needed. This assertion brings together curious bedfellows: those fighting conflicts who have little interest in peace in any case, peacebuilding organizations that feel armed actors should not run the show, and scholars who criticize peace processes from contradictory angles. Critiques are often mounted with one or two examples in mind.
Yet statistics show that from the peace agreement era beginning in 1990 through 2012, there was a strong trend of reduction of conflict, until deaths in the Syria conflict started to reverse the trend, which continues upward. While debate over how to measure success continues, more than 70 percent of comprehensive peace agreements stopped violent conflict for at least five years, even though a more positive peace often remained elusive. Our own (PeaceRep) data on peace agreements and processes shows that over 2,000 different types of peace agreements have been signed in around 150 peace processes. Generalizing from one or two, often atypical, examples is therefore a misleading way to evaluate the practice as a whole.
It is therefore timely that Paul Williams, who has been involved for over 30 years as a legal adviser and mediator in peace processes and a researcher and teacher in the field, has written a book detailing how settlements are reached in almost impossible circumstances. “Lawyering Peace” draws on his experience and on significant comparative research to deliver both a masterful international legal text on the rules that constrain peace negotiations and a rich comparative resource of the past 30 years of peace processes. He sets out in stark clarity what it costs parties to reach peace in terms of compromise.
What emerges is a user manual—or “recipe book”—of options for resolving the trickiest issues in peace negotiations. Williams’s prescriptions offer a nuanced and informed account of the interplay between legal, moral, and political imperatives. The book is a wonderful example of clear writing. Williams sets out complex issues in plain and accessible language, explaining clearly, even to the nonspecialist, the conundrums of peace negotiations. He carefully and systematically considers the possible options for overcoming them. The book deserves to be devoured quickly by mediators, students, scholars, and indeed the ordinary person with an interest in conflict, peace, and global affairs.
In parsing options for conflict resolution, Williams draws on an impressively diverse set of case studies, from Burundi to Northern Ireland to Papua New Guinea, including many contexts in which he or the organization he founded, Public International Law and Policy Group, has played a key role at some stage of the negotiations. Usefully, he often also outlines how the settlement terms played out over time: when compromises sustained, when they unwound, and when they had to be revisited. Williams keeps the thread of the how-to approach easy to follow, giving the reader just enough context to make sense of the examples in the text and including a fuller resource and background on each case study in an appendix to the book.
Five Critical Stumbling Blocks
Williams suggests that five issues are the most difficult to reach agreement on in peace negotiations: security, power-sharing, control over natural resources, self-determination, and governance. He provides a chapter on each issue that sets out an introduction that explains, often with the help of statistical data, why the issue is critical to conflict resolution; an unpacking of the puzzle the issue presents for conflict resolution; a conceptual and legal primer on what the issue involves and the relevant legal standards; key state practice from past peace processes; and a concise and clear explanation of conundrums that draws on the case examples to set out the options for their resolution.
Regarding the first topic, security, Williams points to two key difficulties: first, how the state negotiates to share security functions with international actors during the end of the conflict and the negotiations process; and, second, how the state’s monopoly on the use of force can be rebuilt as paramilitary groups are either decommissioned or brought into state security structures. The issue of shared security between international and national actors has received remarkably little attention in the literature, and is seldom linked to the second—which has more often received treatment as a technical question of “disarmament, demilitarization and reintegration” or “security sector reform,” rather than a mediation issue. By placing both questions in a wider political framing over how to bring together state capacity and legitimacy to command a monopoly over the use of force, Williams shows an unfolding set of compromises that provide a complex navigation of the simple binary at the heart of the parties’ opposing positions.
As regards power-sharing, Williams focuses on how state and non-state groups divide power to provide for political accommodation of different groups at the heart of the conflict, for example through autonomy, federalism, and fiscal, administrative, and legal devolution of power. Williams points to the importance of power-sharing with excluded and oppressed groups in a context of majority domination by an autocratic central government, explaining why it is so often central to resolving conflict. He focuses mainly on “vertical power-sharing”—that is, devolving power to substate units of different sorts—and points to the many different varieties of devolution of power that can be used, often in combination.
The third issue Williams addresses is negotiation over natural resources—another neglected area in the mediation and peacebuilding literature. There are three types of natural resources that link to conflict: extractive resources (oil, gas, timber), land, and water. Williams addresses the critical issues to be negotiated: ownership, management, and how revenue is governed and distributed. The chapter is particularly critical to mediation practice, given “the complex technical nature of regimes for the management of questions relating to natural resources.” Williams notes that while “mediators are often skilled at political negotiations and frequently have experience with governance and security in a prior professional capacity,” international mediators “seldom have an expertise in natural resource management.”
For his fourth issue, Williams turns to self-determination, particularly in secessionist disputes, and how parties seek to find a compromise. He addresses the following conundrums: how best to share sovereignty, build institutions, determine final status, phase in the assumption of sovereignty, condition the assumption of sovereignty, and constrain the exercise of sovereignty.
The fifth and final issue Williams addresses is governance: how parties provide a comprehensive legal framework for the postconflict period. As he points out, often all the parties in negotiations can do is establish general principles, which must be given their constitutional detail afterward using processes such as “national dialogues” that include wider civic input. He addresses conundrums such as whether to address the constitutional framework in peace negotiations or after; the best timing of the period of constitutional reform; whether to establish a permanent or interim constitution; whether to reform through amendment or replacement; whether, when, and how to hold a referendum; and whether it is better to rely on international standards for human rights or instead to draft them more contextually, especially when it comes to religious and cultural rights.
Williams’s book is excellent, and I would highly recommend it: In addition to being informative and erudite, it also manages to be interesting and entertaining—an enviable achievement. Although called “Lawyering Peace,” the book articulates how law and politics work together—something that is often missing from both legal and more political mediation accounts that touch on similar terrain.
The Challenge of the “Elite Deal”: Required but Not Sufficient
“Lawyering Peace” provides in its subtext a compelling antidote to some of the recent tendencies in work more critical of peace processes. The first tendency is to criticize the substance of the compromise without taking responsibility for the lack of alternatives available in a project that has to persuade the parties responsible for conflict to end it, often from a position of battlefield power. Sometimes those pushing wider agendas for change from outside the country express the idea that the fragility of the process is exaggerated, and that a range of matters extraneous to the concerns of the parties can be inserted by international actors. By methodically setting out five central issues, and explaining why they are central, Williams tells a story of the constraints on peace negotiations. After all, if the armed actors were likely to end the conflict without having their demands met, there likely would have not been a conflict in the first place. The second recent tendency of those critical of peace process design is to push for “greater inclusion” and to argue that peace processes only involve “elite deals” between illegitimate armed actors. Williams reveals the way that peace process solutions in practice must bring together state and non-state armed actors, technicians, bureaucrats, and those affected by conflict. He shows where mediation has had strengths and where it has had weaknesses. He understands that none of the options is perfect, but that they nonetheless can play a critical role in persuading armed actors to move from violence. In place of a false binary between “elite deal” and “inclusive peace,” Williams points to the challenges of moving from armed conflict to “good government,” noting that some issues—for example, constitutional redesign—are best left to more inclusive processes after the main negotiations.
This approach contrasts with many of the efforts to ensure the influence of groups that are underrepresented in peace negotiations, such as women. Indeed, “Lawyering Peace” is likely to garner criticism precisely because it bucks a trend to see compromise between state and non-state armed actors as an “illegitimate elite deal,” which is focused on the wrong players and issues. The mismatch between “Lawyering Peace” and peacebuilding criticisms of peace processes is itself illustrative of a fundamental gap in what different communities of practice understand to be the primary function of peace settlement efforts. This is a gap that has been much discussed but remains to be resolved.
Peacebuilding focused on inclusion often starts from a criticism of the elite deal and understands the difficulty with inclusion as being one of representation at the talks. Many efforts, for example, have focused on the role of women. Here inclusion efforts focus on whether women are present, whether they have an opportunity to widen and deepen the deal being discussed, and whether there is any capacity to infuse the deal with the question of how it will affect women and the types of conflict they face.
Williams’s book indirectly points to the challenges of connecting wider agendas for change to negotiation of these conundrums on whose resolution any agreement depends. In a sense, the book provides a challenge to current strategies of inclusion, which often involve reciting mantras of inclusion (“adding women will lead to a more sustainable peace”) and citing legal standards in support. To affect mediation outcomes, agendas for change that come from beyond the parties to the conflict, including from women, have to somehow be connected to the conversations the parties—and often mediators—understand themselves to be having in ways that do not disrupt it completely, if the goal of the mediation is to reach an agreement that will stop fighting. It is this conversation between the main conflict protagonists that Williams’s book contributes to, but in its detail it provides a focus for understanding what the focus and options of the elite deal are, that provides an important starting point for understanding what other forms of change might also be leveraged—and require to be leveraged—through the opportunity that the peace process provides. To be successful, the peace agreement will need to provide mechanisms to integrate progress of both agendas for change.
In its choice of “five key issues,” “Lawyering Peace” could be criticized for issues not dealt with that are often very important to the wider population who will be asked to sustain the peace. These are perhaps issues for a second volume: The book’s focus on deal-making is justified by what Williams brings to the table and the detail it requires. However, the wider issues of how a central negotiation requires underpinning by a range of social processes—most of which need international support over longer time frames—is an important part of the picture. Peace agreements often need to provide sufficient hooks for these processes to be dealt with down the road. Civic reframing of what fuels everyday conflict often proves crucial to helping peace processes over the inevitable bumps in the road once the mediators have gone home. In Northern Ireland, for example, the story of the peace process is the story not just of the 1998 agreement but of the hundreds of civic initiatives that preceded and succeeded it. These initiatives provided the political imagination for how compromise could be reached and sustained when the parties finally moved from the delusion that any of them could “win” or that winning would not also require compromise and mediation.
It would also be interesting to learn not just about the substance of agreement that enabled the parties to “get to yes” but also about the processes that were a critical part of the iterative approach to reaching “maybe.” In South Africa, for example, in addition to vertical power-sharing in the form of “regional” devolution of power dealt with by Williams, there was a temporary horizontal power-sharing arrangement with a sunset clause that sought to give the then-white South African political elite a phased transfer out of power. In addition, a set of “constitutional principles” bound the soon-to-be post-apartheid African National Congress (ANC) government to what it had agreed with the white minority South African government destined to leave power postelections so that the deal could not be entirely rewritten. Together these process mechanisms worked to overcome a logjam whereby the old government wanted to write the constitution before elections and the ANC saw this as unacceptably undemocratic. The innovation of a sunset clause that would see power-sharing as a transitional device has been borrowed and reconfigured in many peace and transition processes and deserves more attention. In fact, I would have liked to see Williams deal more with horizontal power-sharing more generally—that is, power-sharing in the executive branch of the central government—that for reasons of space is touched on only lightly. As he notes, vertical and horizontal power-sharing are often combined in a range of ways to meet competing demands of the parties. It is often the horizontal power-sharing that unravels in implementation.
Peacebuilding practitioners are also likely to wonder as to whether the “five key issues” are indeed the key issues. Most peacebuilders, for example, might not think of natural resource competition as critical but wonder about the omission of the more well-trodden ground of transitional justice: the conundrum of “how to deal with the past.” But here I think Williams usefully presses his own frame of analysis in ways that do not focus on the normal “toolkit” but on the biggest power plays at stake. Transitional justice is seldom the driving issue within negotiations that it is in academics or civil society, although it is an issue that haunts the political future if not given some political space in how governance is planned for.
Williams is also much stronger in some case studies than others—while the examples are all apposite, there is a little unevenness in how case studies are dealt with. Being from Northern Ireland, I noticed this issue particularly in that case. However, I recognize that having lived and breathed that conflict for most of my life, I am a picky reader here. The broad analysis and use of examples was right, and the range is an important strength of the book. The need to summarize inevitably means that the results will always be open to criticism by those who have spent their lives understanding and analyzing a conflict from the inside.
Lawyering Peace in the Future: Tool Kit or Requiem?
A more profound question, however, haunts the book. Is the practice of resolving intrastate conflict becoming redundant, in a new resurgence of geopolitical conflict? Is it a practice that—much like the League of Nations experiment with resolving nationalities conflicts in the interwar years—that is currently being swept away by an emerging new set of conflict dynamics?
The peace process has been a model designed for conflicts between an oppressive state “owned” by one side in the conflict and a big armed state opponent with some satellites. The peace process involved negotiations over how to reconfigure the state’s political settlement to reach political accommodation between the state and its armed opponents and the groups they represented. This characterizes many of the successful mediations Williams draws on. However, many conflicts now involve not one dominant conflict, but a complex “conflict system” in which local, national, and geopolitical conflicts are deeply intertwined. In place of “the state/non-state conflict” are myriad conflicts involving small armed groups that form alliances and rapidly switch sides, often drawing on transnational support, in contexts where the state as such has had little real existence and its institutions have never been the only game in town for how the country is governed.
At the global level also, in place of the international rules that Williams maps out, is an increasingly fractured geopolitical landscape in which norms and forms of international cooperation that are necessary to this sort of process are becoming undone (see PeaceRep work in this area). In place of coherent international support authorized by the United Nations, we have a world of geopolitical fragmentation and mediation competition, where even western rhetorical commitment to norms and international rule of law seems incredibly shaky. A range of new entrants see intervention in the name of peace as a way to reshape, and even disrupt and displace, the norms-based international order. They often work from motives that seem opaque and ambiguous. Fully blown international or interstate conflict seems set to emerge as the new normal, and while some of the mediation techniques and solutions will still be relevant, many are not.
Sometimes as I read articles and books, or sit in U.N. meetings, or conferences, or even in peace process meetings, I find myself thinking about “Gangs of New York.” Just as its central story of violent conflict between Irish immigrant Protestant and Catholic gangs in New York reaches its climax, a totally new bigger war—the Civil War—starts over the top of it. In place of the Catholic-Protestant showdown, the ships of the Civil War arrive and kill most of the gangs on both sides, depriving us of a satisfying denouement to what has seemed (for hours!) the main story. The new politics literally sweeps all the gangs and their wars off the streets like a giant flood, rendering their political squabbles, power plays, mediations, alliances, and betrayals irrelevant. A new age and a new type of conflict washes them into the past, because it signifies a new, completely different era that sweeps away the old one. The battles are now replaced by something more profound and subsuming—the battle for the very state of the nation.
Sometimes I feel I hear the sounds of that type of sudden epoch change all around, this time at a global level. I wonder why we are still talking to each other as if the old practices, and our debates over how to improve them, mattered. I hope against hope that Williams’s practice and scholarship, which has many overlaps with my own, still matters, and that the peace processes we both seek to improve still have a chance. If not, we will live in an increasingly dangerous and brutal world. Many days, however, I fear that this world is already with us and we do not know what to do to create peace in it.