Remembering Peace in a Time of War: Why International Law Matters More Than Ever | Building Peace
The Architects of Peace:
Studying the Involvement of Non-State Actors in Peace Processes
The traditional conception of international law as norms concerned only with the conduct of States is slowly eroding. There is growing recognition that its fundamental objectives, such as maintaining international peace and security and protecting human rights, are increasingly affected by non-State actors (NSAs). This is reflected in the increasing involvement of NSAs, directly or indirectly, in international legal processes.
This article studies the involvement of NSAs in international legal processes relating to peace and security, exploring how non-State armed groups (NSAGs) negotiate peace agreements. It argues that, to achieve sustainable peace, a broader range of NSAs, beyond those directly involved in hostilities, must participate in the peace processes.
International Legal Personality of NSAGs
In the field of peace and security, efforts to broaden participation in international law-making are evidenced by the growing recognition of NSAGs as international legal persons (ILP). This acknowledges their capacity to conclude binding peace agreements under international law.
International legal personality was previously understood as being limited to States. Particularly in armed conflicts, there was a concern that concluding binding peace agreements with NSAGs would undermine State sovereignty and entail an admission that the State ‘does not have sole authority over the use of force or the determination of political realities within its territory.’
However, an arbitral tribunal operating under the Permanent Court of Arbitration and the Inter-American Court on Human Rights have recognised NSAGs as ILPs, affirming their peace accords as binding. Similarly, the Security Council frequently urges parties to non-international armed conflicts to conclude such agreements and fulfil their obligations, deploying investigative mechanisms and arms embargoes to promote compliance (see here, here and here). Commentators argue that this practice by the Council generates customary international law. The ICJ was given the opportunity to comment on the status of NSAGs in Armed Activities on the Territory of the Congo but avoided the issue—a decision that was criticised for diluting the status of the peace agreement in question.
As such, fostering compliance with the terms of the negotiated peace is often raised as an argument for recognising the subjecthood of NSAGs and the bindingness of the agreement. The law’s normative power, reputational costs of violations, and the institutions and secondary rules that strengthen international obligations arguably create this ‘compliance-pull’.
However, more than the formally binding nature of the agreement, wider participation in peace processes enhances the legitimacy of the negotiations, thereby increasing the likelihood of lasting peace.
Broadening participation beyond NSAGs
There is, admittedly, no guarantee that a binding peace agreement involving NSAGs will ensure compliance with its terms. While some such accords were largely successful in generating durable peace, others were less so. Most fell along a spectrum between enduring peace and open hostilities, while imposing a significant human cost. Conflicts are complex and, while binding agreements are perhaps more likely to be complied with, the exact reasons for their failures are rarely discernable.
I contend that peace processes must broaden to include NSAs, beyond those directly involved in hostilities, to ensure lasting peace. Despite macro-level accords between major armed groups and political elites, post-conflict violence is all too common. These may be large-scale, politically-motivated attacks or isolated criminal acts. This was seen after the Belfast Agreement in Northern Ireland, where communal violence and rioting surged despite the main militant organisations largely respecting the accords. Such violence erodes trust in society and undermines an already fragile order. Perpetrators are often characterised as ‘spoilers’ that are entirely focused on impeding the peace process and might ‘suffer from pathalogical tendencies that prevent the pragmatism necessary for compromise settlement of conflict.’ Such portrayals come from influential groups negotiating the agreements who have resources, media access, international support, and the incredible moral support that peace processes appear to garner. ‘Spoiler’ resistance, however, often reflects deeper discontent with the accords’ terms.
Beyond the hostile parties, peace processes must engage with a wide range of NSAs including, inter alia, regional political parties, faith-based groups, non-governmental organisations, minority and women’s networks, and indigenous communities. They represent diverse views of the conflict and may be particularly vulnerable to its consequences.
The Bangsamoro Peace Process in the Philippines attests to the benefits of meaningful NSA participation in these processes. Its ‘insider mediation’ approach recognised that the accord’s terms had to be accepted by various groups within the Moro society who were not represented at the negotiating table. It engaged mediators from local communities, including religious leaders, public figures, journalists and academics. They were trained by the European Union and the UN Development Programme to facilitate inter-faith dialogue and conciliatory efforts for the fragmented leadership of the NSAGs. By 2020 there were over 100 mediators from diverse backgrounds, supporting the work of the transitional authority created by the peace accord.
Similarly, non-governmental organisations and women’s networks were active in Nepal’s peace processes. Recognising the particularly harmful impact of the decade-long armed conflict on women, the State’s transitional justice model sought to cement their active participation in the post-conflict architecture. It mandated 33% female representation in all State organs, including municipal peace committees. Moreover, it adopted National Action Plans to implement the Security Council’s Women, Peace and Security resolutions. Numerous women’s networks and NGOs worked with the Ministry of Peace and Reconstruction to strengthen the National Action Plan’s implementation.
Therefore, broadening participation need not necessarily entail a seat at the negotiating table. It may include conferring observer status for negotiations, public participation and referendums, and inclusive implementation mechanisms.
Conclusion
Broadening the participation of NSAs in peace processes admittedly does not guarantee a positive outcome. However, it is misguided to assume that the mere involvement of NSAGs in the formal negotiations fully accounts for the range of actors within society—or even within the armed group—to ensure adequate public support. The effectiveness of a peace agreement is not purely determined by the extent to which the conflicting parties refrain from resuming hostilities. To foster lasting peace, the agreement requires sufficient public buy-in and social groups should not have to resort to violence or criminality to express their rejection of its terms.
Trisha Unnikrishnan is a Research Associate (Public International Law) at the National University of Singapore Centre for International Law.