Remembering Peace in a Time of War: Why International Law Matters More Than Ever | Brokering Peace
Regional Human Rights Courts as Peacebuilders
In its Judgment Sargsyan v. Azerbaijan (2017) dealing with the Nagorno-Karabakh conflict between Azerbaijan and Armenia, the European Court of Human Rights affirmed that:
It is the responsibility of the two States involved to find a solution on a political level […]. The Court cannot emphasise enough that it is not a court of first instance. It does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of specific facts or the calculation of monetary compensation […] (para. 30, 32, emphasis added).
In Georgia v. Russia (II), the European Court equally stressed the challenges it faced with when dealing with complex situations in terms of establishment of facts and applicable law (para. 142).
These two examples are illustrative not only of the European Court’s reluctance to address difficult matters but also its conception of the separation of functions between international adjudication bodies, States involved in a conflict and other actors such as political bodies of international organisations. However, this position of self-restraint—for pragmatic and realistic reasons—does not mean that the regional human rights courts do not play an important role in framing an equitable, sustainable and human rights-based peaceful society, including by imposing to transitional justice models requirements that meet the highest human rights standards.
This post focuses on the practice of the European and Inter-American courts. It leaves aside the pending inter-State case before the African Court of Human and Peoples’ rights, Democratic Republic of Congo v. Rwanda, since there is not admissibility or merits determination so far. The post explains how these regional courts contribute to building a value-based state of peace, especially regarding the conditions for peace (1), the articulation between peace agreements and human rights obligations (2), the transition to peace (3) and the requirements for a sustainable peaceful society (4).
Conditions for Peace: Preserving Pluralism and Rule of Law during Emergency Times
Two of the three regional human rights treaties—with the notable exception of the African Charter on Human and Peoples’ Rights—contain a provision dealing with derogations to allow the States to address emergency situations such as a war or other ‘public emergency threatening the life of the national’ (Article 15 of the ECHR; see also Article 27 of the ACHR). Some rights are derogable while others as considered as non-derogable. However, in practice—even in war, military occupation or post-war situations—the regional courts stress the need to preserve the core-value of democracy, pluralism, and civic space. In Bedoya v. Colombia (2021) dealing with sexual violence against a female journalist working on the internal armed conflict in Colombia, the Inter-American Court highlighted the danger of self-censorship the use of sexual violence trigger for women journalists but also for the public in terms of plurality of ideas and views on critical issues that must be preserved during an armed conflict. Along the same lines, in the pending Ukraine and The Netherlands v. Russia admissibility decision, the harassment, arbitrary detention, ill-treatment committed by Russia against Ukrainian and foreign journalists in the context of the Crimea annexation were considered by the European Court as a prima facie ‘administrative practice’ of violation of freedom of expression. In another Judgement opposing Ukraine to Russia, the European Court also insisted on the need to preserve the rule of law and the legality principle for any restriction of rights in context of emergency such as a situation of occupation (paras. 931-946; 1089-1104).
The protection of a pluralist, holistic and inclusive civic space during a conflict is therefore pivotal since they are a powerful tools to prevent conflicts and to restore a peaceful, tolerant and open society (for the role of freedom of religion as a vector of peace: see 2024 report of the UN Special Rapporteur on freedom of religion).
Peace Agreements and Human Rights Obligations
When an internal or international armed conflict ends, the parties might conclude a peace agreement, which could potentially be in contradiction with human rights obligations, especially when there is no or only partial reparation scheme accessible for victims affected by the conflict, or when immunity is granted to the perpetrators of human rights violations. In this case, the regional courts must combine both instruments driven by two potentially conflicting goals: the need to halt armed hostilities on the one side and the achievement of a sustainable level of human rights framework on the other hand. This dilemma was addressed by the European Court in the context of the Dayton Agreements (1995) following the armed conflict in former-Yugoslavia. In Sejdic and Finci v. Bosnia-and-Herzegovina, the Court admitted a temporary restriction of electoral rights of groups ethnically defined (para. 45). It however considered that the passage of time rendered the exclusion of Roma and Jewish peoples from the list of candidates to elections ungrounded and amounted to racial discrimination.
Therefore, when reaching, negotiating and implementing a peaceful agreement, States must take into account their human rights obligations. Peace cannot be reached at any cost and obviously not by suspending the enjoyment and exercise of human rights.
Transition to Peace and Human Rights
The same philosophy applies to post-conflict situations, when States design transitional justice models. In this regard, they often oppose the reconciliation process that could justify the adoption of amnesty laws, statutes of limitation and pardon for the perpetrators, to the access to justice for victims.
However, the longstanding jurisprudence of the Inter-American Court on the right to truth for victims of grave violations of human rights, and against amnesty laws, immunity and any other forms of impunity has shaped the States’ obligations to investigate and prosecute but also the transitional justice models applied in many Latin American countries (Chile, Argentina, Colombia, Guatemala and Peru). For the Inter-American Court—followed by the European Court with slightly different views on amnesty (here and here)—peace is part of a triad, alongside with freedom and justice echoing the preamble of the Universal Declaration of Human Rights. The former cannot prevail over the two other values but must be combined in a holistic, inclusive and victim-centric perspective.
Consolidating Sustainable Peaceful Societies
The role of regional human rights courts is mainly a posteriori, i.e. once the conflict has broken out. Therefore, their intervention is first and foremost defensive and protective once the harm is done. However, as mentioned above, there is also a potential preventive dimension that emerges from their jurisprudence focused on prohibition of hate speech, preservation of a pluralist and inclusive society free from negative stereotypes and structural and intersected discrimination. Conflicts are deeply rooted in these economic, legal, social—including in terms of gender imbalance—environmental, political, racial, ethnic and religious inequalities between individuals and among people. Fighting against exclusion and hate of the “Other” is one of the pillars for a sustainable peaceful society achieved by regional courts when they interpret the States’ obligations. It is also aimed to a certain extent when they grant remedies (Article 41 of the ECHR; Article 63-1 of the ACHR; Article 27 of the 1998 Protocol to the African Charter). The Inter-American practice is the best illustration of an extensive use of guarantees of non-recurrence as a tool for transforming societies, aiming at breaking the vicious and intergenerational circle of violence. For the Inter-American Court, the right to truth is both an individual right and a collective right of the society to know about its past, to learn not to repeat the same pattern of harmful and discriminatory conducts. Therefore, remedies have both reparatory and transformative purposes of the victims and society’s lives (for more, read here) and their implementation is a key-condition for ensuring a fair, equitable, and justice-based peacetime.