ABSTRACT
The assumption that peace mediation is gender-neutral reproduces and reinforces the already gendered aftermath(s) of war. Peace mediation is a multilayered conflict resolution mechanism that ranges from grassroots peacebuilding to high-level diplomacy. As a ‘language of peace’, international law has become foundational in high-level peace mediation processes and institutions. International legal feminist and queer theory are critical of international law for its gendered and heteronormative frameworks that reinforce the binaries of war/peace, masculine/feminine or heterosexual/homosexual. Global governance gender law reforms, such as the Women, Peace and Security agenda, are part of the institutional frameworks that guide peace mediation processes. High-level peace mediators are also members of an ‘epistemic community’ regulated by international and regional organisations. The article analyses how masculine and heteronormative international legal institutions and experts shape peace mediation’s already gendered processes and outcomes. The article concludes that contemporary peace mediation approaches must be rethought and that alternatives to the traditional peace table must be imagined.
Acknowledgments
This article has been informed by and is part of a larger Australian Research Council Discovery Project (DP210103549). I want to thank Jacqui True, Toerien van Wyk, Marnie Lloydd, and especially Gabrielle Simm for their comments on previous drafts of this article. I would also like to thank the anonymous reviewers for their thoughtful and helpful comments.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Sharief (Citation2020). Hajer Sharief is a peace activist and the co-founder of ‘Together We Build It’, a Libyan peace and women’s human rights organisation.
5 See Kane (Citation2020) for a discussion on mediation in internationalised civil wars.
7 See the discussion on international law and peace agreements below. See also Ozcelik (Citation2020) for an up to date analysis on legal status of peace agreements.
9 Gender is here understood as a ‘structural power relation’ based on socially constructed notions of masculinity and femininity, giving preference and dominance to the former over the latter, see Cohn (Citation2013).
12 For a ‘state of the art’ overview on the concept of tracks, see Palmiano Federer et al. (Citation2019). On the role of NGOs, see Palmiano Federer (Citation2021).
15 Masculinities theory is a broad and diverse approach. See Kastner and Roy-Trudel (Citation2019) for a more complete discussion on masculinities theory and peace mediation. For a more comprehensive discussion of masculinities theory, see list of references cited in the same article.
17 See Kastner and Roy-Trudel (Citation2020) who creatively adopt a queer methodology in presenting a dialogue between two fictionalised characters of ‘Peace(S)’ and ‘q*’ to communicate the inherent complexity and unknown that exists in peace mediation.
19 Security Council Resolution 1325, UN Doc S/RES/1325 (Citation2000), preamble.
20 See Paige (Citation2019) for an analysis on international law as a language of power and diplomacy. See also the work of David Kennedy, Ian Johnstone and Martti Koskenemmi on the concept of law as a form of language cited in Paige (Citation2019).
21 Weller et al. (Citation2017). See the Language of Peace database (https://www.languageofpeace.org/#/) – created by the Lauterpacht Centre for International Law at the University of Cambridge and UN Peacemaker, which catalogues over 1,000 peace agreements that can be searched and compiled based on key issues for use by mediators, conflict parties, other stakeholders and researchers.
23 Christine Bell (Citation2008) developed the concept of lex pacificatoria to describe a framework of emerging international legal practice on the drafting and mediation of peace agreements. The concept is addressed in more detail below. See also Weller et al. (Citation2021), Koopmans (Citation2018) and Kastner (Citation2021) which address the relationship between international law and peace settlements.
25 The exception applies, for example, to indigenous peoples, who can ‘claim to be subjects of international law’ Anaya (Citation2004), 189 cited in Bell (Citation2008), 132. This interpretation is supported by the expanding use of self-determination as a principle of law applied to peace settlements. See Bell (Citation2008), Sheeran (Citation2011) and Weller (Citation2021).
27 Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front (RUF) (Lomé Peace Agreement), 7 July Citation1999.
28 Special Court for Sierra Leone, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, SCSL-2004-15-AR72(E), 13 March 2004 at para 48.
29 Special Court for Sierra Leone, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, SCSL-2004-15-AR72(E), 13 March 2004 at para 48.
30 Special Court for Sierra Leone, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, SCSL-2004-15-AR72(E), 13 March 2004, para 42. Similarly, in 2009 a Permanent Court of Arbitration panel held that the Comprehensive Peace Agreement between the Government of the Sudan and the Sudan People’s Liberation Army/Movement (SPLA/M) was not a treaty under the Vienna Convention on the Law of Treaties. The status of the agreement, however, was not material to the case, therefore, the Court addressed it tangentially. See Sheeran (Citation2011).
32 E.g. Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August Citation1949, 75 UNTS 287, 21 October Citation1950, art. 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts), 8 June 1977, 1125 UNTS 3, 7 December Citation1978 (‘Additional Protocol I’); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609, 7 December Citation1978 (‘Additional Protocol II’).
36 In an attempt to conceive of peace agreements beyond the strict constructs of enforcement in positive international law, or as being classified as either soft law or hard law, Bell adapts the concept of legalisation Abbott et al. (Citation2000), cited in Bell (Citation2008), 138 to better understand the legal status of peace agreements. Legalisation is determined on the basis of the nature of the obligation, the precision of the text, and the delegation to a third party to interpret and enforce the agreement.
37 See Ozcelik (Citation2020), 6–13 for a summary of these arguments.
38 Vienna Convention on the Law of Treaties, 23 May Citation1969, 1155 UNTS 331, 27 January 1980, art 2.1(a): ‘treaty’ means an international agreement concluded between states … ’
39 There is no definition of peace in international law, see Bailliet (Citation2020), 1.
44 Subsidiary sources include decision of courts and tribunals and the writings of publicists. Article 38(1), Statute of the International Court of Justice Citation1945.
45 See Sapiano (Citation2021), especially section on human rights in peace agreements.
46 For example, Article XXIV(1) of the Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front (RUF) (Lomé Peace Agreement), 7 July 1999 states: ‘[t]he basic civil and political liberties recognized by the Sierra Leone legal system and contained in the declarations and principles of Human Rights adopted by the UN and OAU, especially the Universal Declaration of Human Rights and the African Charter on Human and Peoples Rights, shall be fully protected and promoted within Sierra Leonean society’.
47 For example, Article 15 of the Protocol of Agreement between the Government of the Republic of Rwanda and Rwandese Patriotic Front on Miscellaneous Issues and Final Provisions, 3 March Citation1993 states: ‘The Broad-Based Transitional Government shall ratify all International Conventions, Agreements and Treaties on Human Rights, which Rwanda has not yet ratified’. See, Molloy (Citation2020), 9 who also points out that provisions of this type, that commit parties to ratifying international human rights treaties, are relatively rare.
48 See Holper and Kirchhoff (Citation2021), 356–358 who outline these arguments, citing several other chapters in the same edited book Rethinking Peace Mediation (Turner and Wählisch, Citation2021).
62 For an overview of the legal status of the WPS Resolutions, see Chinkin and Rees (Citation2019).
63 Bell (Citation2015), 3. This finding is based on an analysis of peace agreements signed between 1990 and 2015.
65 On the heteronormativity of the WPS agenda and the maintenance of international peace and security, see respectively Hagen (Citation2016) and Paige (Citation2017).
67 The 2016 Colombian Peace Accord, between the Government of Colombia and the Revolutionary Armed Forces of Colombia, People’s Army (Fuerzas Armadas Revolucionarias de Colombia, Ejército del Pueblo [FARC-EP]), was unprecedented for its inclusion of women’s and LGBTIQ rights. The process was also momentous for the number of women that participated in the negotiations in Havana – which happened after women activists and civil society organisations demanded a seat at the table. Despite this, and for reasons explored by Kate Paarlberg-Kvam (Citation2016, Citation2019), the peace agreement has not yet delivered structural changes or addressed the masculine foundations of the conflict. The success of the ‘no’ campaign in the plebiscite on the agreement is telling of the ways in which gendered social constructs are entrenched and difficult to disrupt, see Paalberg-Kvam (Citation2016).
74 Martin Griffiths, the UN Special Envoy of the Secretary-General for Yemen, holds that while ‘mediation has become a much more considered activity … it's become not professionalized’ which he believes is to ‘rather to diminish it’. Nonetheless, Griffiths believes that mediation is now ‘understood better, more recognized as an important craft with certain principles and certain values’ that has made it ‘more equitable … [and] more likely to have an impact’, Fleming (Citation2020).
77 Philipp Kastner adopts the term ‘epistemic community’ as part of his argument on the normative role of international mediators. The concept, borrowed from international relations theory, ‘refers to knowledge-based transnational networks, often in relation to technical or scientific matters, through which shared interpretations, understandings and normative beliefs and commitments are constructed and transmitted … ’ (Kastner [Citation2017, 71] referencing Haas [Citation1992]). I would also suggest that the term ‘invisible college of international lawyers’ adequately expresses the type of professional community of mediators that Kastner refers to as an ‘epistemic community’. Christine Chinkin and Hilary Charlesworth (Citation2000), 98 borrow the term ‘invisible college’ from Oscar Schachter (Citation1977) to describe how the dominance of men in international legal treaty-making creates structural barriers to women’s exclusion.
78 Issued as an annex to the Report of the Secretary-General on Strengthening the Role of Mediation in the Peaceful Settlement of Disputes, Conflict Prevention and Resolution (A/66/811, 25 June Citation2012).
84 Security Council Resolution 1889, UN Doc S/RES/1889, 5 October 2009, preambular para 7.
91 Otto (Citation2017), 2. At a panel discussion for the International Peace Institute, Robert Dann, Political Advisor and former Chief of the Mediation Support Unit, in response to a question from the audience, unequivocally stated that ‘the best thing you can do to get involved in international mediation is to be curious’, International Peace Institute (Citation2018).
Additional information
Funding
This work was supported by the Australian Research Council [grant number DP210103549].
Notes on contributors
Jenna Sapiano
Jenna Sapiano is a Lecturer at Monash Gender, Peace and Security Centre. Her research focuses on gender and the negotiation and implementation of peace agreements. She completed her PhD in International Relations at the University of St Andrews on the drafting and implementation of constitutions as part of peace settlements. Dr. Sapiano was a postdoctoral fellow at Queen's University (Canada) Faculty of Law, a Research Associate on the Legal Tools for Peace-Making project at the University of Cambridge and a Kathleen Fitzpatrick Research Fellow at Melbourne Law School.
https://orcid.org/0000-0002-0556-1400
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