Ethical Dilemmas in International Mediation

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  • Ethical Dilemmas in International Mediation

    Saadia Touval

    M e d i a t o r s in international con- flicts often encounter ethical dilem- mas. Should their first priority in a war-torn state be the restoration of order or the elimination of some of the injustices that ignite conflicts? Should they promote a ceasefire that may save lives, but at the cost of accept ing "ethnic cleansing," thus he lp ing to e rode basic norms of international conduct?

    Such d i l emmas w e r e b r u s h e d aside during the Cold War, w h e n international mediation by govern- ments was guided mainly by national security interests. It is more difficult to ignore them at present , w h e n peacemaking is motivated mainly by humanitarian concerns.

    While states usually have strategic concepts to guide their foreign pol- icy, and whi le they have bureau- cratic machineries to evaluate the poli t ical , military, and e c o n o m i c

    d imens ions of media t ion efforts , they lack agreed-upon cri ter ia to weigh the ethical implications of peacemaking. One might say that in pursuing ethically driven policies, such as humanitarian interventions or peacemaking, foreign pol icy is like a ship at sea without a compass.

    In the absence of pr inciples to guide an ethically driven foreign pol- icy, the policy is actually determined by random stimuli. An example is the so-called "CNN effect" - - the shaping of a foreign policy agenda and priorities by the media and its widely popular cable news network.

    Yet, the media's selection of top- ics for coverage is in f luenced by budge t a ry and o the r factors that have only a chance relationship with the nature or gravity of the ethical issues involved. Peace-making inter- ventions are launched without poli- cymakers having ethical criteria to

    Saadia Touval, who has written extensively on School of Advanced International Studies of the N.W., Washington, D.C. 20036.

    international mediation, teaches at the Paul H. Nitze Johns Hopkins University, 1740 Massachusetts Ave.

    0748-4526/95110000333507.50/0 1995 Plenum Publishing Corporation Negotiation Journal October 1995 333

  • help define operational goals or pri- orities. In facing internat ional con- f l ic t s , g o v e r n m e n t s m u s t d e c i d e w h e t h e r to intervene, and if so, for what purpose and in what way. Even w h e n t hey c h o o s e to med ia te , an a c t i v i t y w i d e l y and j u s t i f i a b l y r ega rded as moral ly p ra i sewor thy , they still face ethical dilemmas.

    What fol lows are re f l ec t ions on some of these dilemmas and on h o w they might be addressed.

    Prior i t ies

    Third part ies mediat ing an interna- tional conflict often pursue the dou- b le goa l o f s t o p p i n g a w a r a n d settling the issues in dispute. They will pursue both, trying to end the bloodshed, as well as devise a settle- ment that is perceived to be fair by the pa r t i e s involved, and thus be acceptable to them and durable.

    H o w e v e r , in t r y i n g to a c h i e v e these goals, mediators are often con- fronted with the realization that set- tling the conflict in a manner that is cons idered fair by the disputants is likely to take a long time. If a war is c a u s i n g ca sua l t i e s and su f f e r ing , m e d i a t o r s m a y t h e r e f o r e f a c e a dilemma wh e the r to divide their task into two, giving priori ty to a cease- fire, and pos tponing the set t lement of the conflict for later.

    The choice can be phrased as one be tween achieving a mere ceasefire or real peace. Viewed somewhat dif- ferently, the choice may be seen as b e t w e e n o r d e r and just ice . To be sure the two object ives are closely inter-related. A durable cessation o f host i l i t ies r equ i r e s a p e a c e sett le- m e n t . J u s t i c e r e q u i r e s o r d e r and order, to endure , must be just. But

    these are long- term his tor ical per- spectives. For mediators, the choice is i m m e d i a t e . W h a t to d o n e x t ? Should they pursue both objectives simultaneously, or should they give priority to a ceasefire?

    T h e e t h i c a l d i l e m m a a r i s e s because the issue is not merely one of sequencing. The sequencing has c o n s e q u e n c e s . As has o f t e n b e e n p o i n t e d out , w a r r i n g p a r t i e s are more likely to settle w h e n the con- t inu ing c o n f r o n t a t i o n hur t s badly and p roduces grave risks. A cease- fire, ending the bloodshed, is likely to e a s e t h e p a i n a n d r e d u c e t h e risks. It will create a tolerable stale- mate, a situation that the disputants might find preferable to the alterna- tive of granting the concessions nec- essary for a compromise settlement.

    Th i s is w h a t h a p p e n e d in t h e Arab-Israeli conf l ic t in 1949, w h e n R a l p h B u n c h e m e d i a t e d t h e armistice agreements be tween Israel and its neighbors. It took until 1979 fo r t h e f i r s t p e a c e t r e a t y to b e signed, the one be tween Egypt and Israel. During the intervening thirty years, Egypt and Israel fought four major wars , no t to speak o f lesser sk i rmishes , in w h i c h m a n y thou- sands of people were killed. Another e x a m p l e o f a t o l e r a b l e s t a l e m a t e p u n c t u a t e d by wars is t he Indian- Pakistani conflict over Kashmir.

    These , and pe rhaps o t h e r exam- p les , s u g g e s t t h a t m e d i a t o r s a re wrong w h e n they assign priority to a ceasefire instead of working for a set- t lement. Nevertheless, I believe that giving pr ior i ty to attaining a cease- fire can be justified because the con- tinuation of a war while a set t lement is be ing nego t i a t ed might entail a

    334 Saadta Touval Ethical Dilemmas

  • greater loss of life than achieving a ceasefire, even if a tenuous one.

    It is granted that it is impossible to arrive at a reliable predict ion which course of action will ultimately cost m o r e - - an ear ly cea se f i r e w h i c h m a y c o l l a p s e and b e f o l l o w e d b y m o r e f ight ing bec aus e the conf l ic t r emains unresolved , or a cont inua- tion of a war whi le the search goes on for a definitive se t t lement of the confl ict . Still, I be l ieve that media- tors ought to give greater weight to the likely near- term consequences of their choices.

    This is so because predic t ions of the near-term are generally more reli- able than those of the more distant future. The media tor can be certain tha t an o n g o i n g w a r will p r o d u c e c a s u a l t i e s . T h e p r o p o s i t i o n t h a t cease f i r e s b r e a k d o w n , l ead ing to the r enewal of war, and p roduc ing higher casualties over the long-term, is far less certain. Many events can intervene b e t w e e n here and the long run , n o t all o f t h e m n e g a t i v e . A cho ice based on predic t ions of the s h o r t - t e r m c o n s e q u e n c e s o f o n e ' s actions seems therefore justifiable in such situations.

    Assigning the h ighes t pr ior i ty to an early cessation of hostilities is jus- t if iable for addi t ional reasons . It is m u c h more difficult to reach agree- men t on te rms that are perce ived by the adversaries as fair and just while t he w a r c o n t i n u e s . T h e e m o t i o n s genera ted by an ongoing war make it difficult for the parties to accept that the e n e m y has valid concerns , and to e n g a g e in a j o in t s e a r c h fo r a mutually beneficial ou t com e wi thout wh ich no set t lement will endure.

    M o r e o v e r , t h e c o n t i n u a t i o n o f killings that a c c o m p a n y wars tends to pe rpe tua te hatreds and stimulate vengefulness, thus fueUing the con- t inuation of the conflict. Such emo- tions not only h inder efforts to settle the conflict, bu t p roduce conditions that make the renewal of war more possible.

    A cease f i r e l eav ing the con f l i c t unresolved may p roduce a situation that is regarded by one or bo th sides as unjust. It may leave p e o p l e sub- j ec t to a l ien ru le , d i s p l a c e d f r o m their homes, and suffering f rom vio- lations of their rights. But injustice is r eve r s ib le ; d e a t h n e v e r is. P e o p l e will surv ive to see a n o t h e r day, to c o n t i n u e t h e i r q u e s t fo r j u s t i c e , t h o u g h h o p e f u l l y b y pol i t i ca l and not military means.

    L i v e s o r P r i n c i p l e s ?

    Mediators can usually accept a m u c h wider range of ou tcomes to a negoti- ation than the disputants. One might say that they care more about reach- ing a se t t lement than about its terms. But should mediators facilitate a set- t l e m e n t t ha t is i n c o n s i s t e n t w i t h international norms, or wi th princi- ples of justice adop ted by the inter- national communi ty?

    One might argue that they should. Mediators of internat ional confl icts should pursue te rms that are attain- ab le , e v e n if t h e y a re a t t a i n a b l e mainly because they reflect the bal- ance of p o w e r b e t w e e n the adver- s a r i e s , r a t h e r t h a n j o i n t l y - h e l d notions of justice.

    T h e r e a re t w o i m p o r t a n t a rgu- m e n t s a g a i n s t s u c h a c o u r s e o f action. One is that such a set t lement

    Negotiation Journal October 1995 335

  • is unlikely to endure. One of the par- t ies ( s o m e t i m e s b o t h ) wil l r e s e n t t e r m s tha t are c o n s i d e r e d un jus t , and will seek to over turn t hem at the earliest opportunity.

    The o ther a rgument concerns the w i d e r ramif ica t ions of such sett le- m e n t s for wor ld order. Te rms of a set t lement that are inconsistent wi th international principles may tend to u n d e r m i n e the i r validity, c r ea t i ng uncer ta int ies as to wha t the n o r m s are, and thus weakening constraints upon international conduct . In o ther w o r d s , s u c h s e t t l e m e n t s , w h i l e appear ing to settle a part icular con- flict may cause wider long-term dam- age by undermining the foundations of international peace and securit3:

    An example of such a d i lemma is the Vance-Owen plan for resolving the conf l ic ts in Bosnia. D e v e l o p e d over several months during 1992-93 t h r o u g h c o n t i n u o u s c o n s u l t a t i o n w i th the Moslem, Serb, and Croa t parties, it a t t e m p t e d to resolve the e t h n i c c o n f l i c t s b y d i v i d i n g t h e coun t ry into ten cantons, in a way tha t enab le s each e thn ic g r o u p to ho ld a d o m i n a n t pos i t i on in s o m e cantons, while safeguarding its rights as a minori ty group elsewhere.

    The main obstacle to such a settle- ment , as well as to the subsequen t Owen-S to l t enbe rg plan for a three- w a y pa r t i t i on o f Bosnia, w e r e the o b j e c t i o n s o f t h e S e r b i a n a n d Moslem parties.

    But the Uni ted States h e l p e d to u n d e r m i n e these med ia t i on effor ts by criticizing the p ropos ed te rms as unjust, as legitimizing territorial con- quests and the consequences of eth- nic c leans ing, and thus r e w a r d i n g

    aggression. It is impossible to k n o w w h e t h e r it would have been possible to end the w a r had the United States s u p p o r t e d these endeavors , instead of proclaiming its opposi t ion.

    Conceivably, insistence on respect for in te rna t iona l no rms , ins i s tence that m e m b e r s of different nationali- ties must live together side-by-side in peace, and that ethnic part i t ion will violate this principle, may have con- t r ibuted to ex tend ing the war wi th its terrible cost of human suffering.

    The di lemma is stark. What comes first - - striving to p ro tec t norms, try- ing to teach Serbs, Croats and Bosn- ian Moslems to coexist in peace, or saving lives by separa t ing b e t w e e n them, and pos tpon ing the search for justice for later?

    To repeat : a good answer wou ld require prescience. It is possible that the expedient course of promot ing a se t t l ement that is inconsis tent wi th i n t e r n a t i o n a l n o r m s , bu t p e r h a p s attainable, would have caused serious l ong t e r m in ju ry to i n t e r n a t i o n a l p e a c e and s e c u r i t y . But in t h e absence of foreknowledge, the ethi- cally more prudent course appears to be to work for terms that seem to be attainable, provided they promise to stabilize a ceasefire, despite their cor- rosive long-term effects. This position is consistent with the previous argu- ment that mediators ought to prefer ou tcomes that save lives in the near- term, because of the greater uncer- tainty about long-term developments .

    This p re fe rence will receive addi- t ional s u p p o r t o n c e w e r e m e m b e r that international norms u p o n which w e s e e k to es tab l i sh i n t e rna t i ona l peace and securi ty are nei ther divine

    336 Saadia Touval Ethical D i l e m m a s

  • edicts, nor the products of millennia of social learning. They are instead r e c e n t rules es tab l i shed t h r o u g h a p r o c e s s o f t r ia l and e r ro r , as t h e i n t e rna t i ona l c o m m u n i t y s ea r ches for responses to n e w challenges. It is a process of mutual adjustments, as norms are modified to fit n e w reali- ties, and in t e rna t iona l b e h a v i o r is adjusted to conform to n e w norms.

    For example , in the early part of this cen tury , the n o r m of na t ional self-determination was procla imed as p r o m i s i n g g r e a t e r j u s t i c e a n d as m o r e likely to ensure in ternat ional peace , than the mingl ing of e thnic groups in multinational states. When e x p e r i e n c e d e m o n s t r a t e d t h a t national self-determination instead of p r o d u c i n g p e a c e o f t e n p r o v o k e s war, the i n t e r n a t i o n a l c o m m u n i t y i n v e n t e d a n e w n o r m . T h e n e w no rm prescr ibes that self-determina- tion is a right accorded to territorial jurisdictions, and not to nat ions or ethnic communit ies .

    This principle has served well the cause of peace in Africa, as it he lped

    the newly i ndependen t states there to accept (with very few except ions) the borders established by their for- m e r c...