Making rights real? Minority and gender provisions and power-sharing arrangements

Abstract

Power-sharing arrangements have lasting effects on societies where they are put in place, as they can not only allocate access to power to particular groups in the short to medium term but also shape the legal and institutional landscape of the post-conflict country. There are potential risks thus to the protection of human rights inherent in power-sharing arrangements. First, those given the most significant benefits in power-sharing arrangements are usually the protagonists to the conflict, who may have committed serious human rights abuses and will resist accountability for past abuses as well as the legislation of human rights protections. However, it is also possible that power-sharing arrangements will include provisions which may help to promote human rights, such as those setting aside seats in executive cabinets or legislatures, or posts in security forces, or autonomous regions, for minority groups or indigenous people, or all but the final type of provision for women. In principle, such provisions can help to secure greater representation of traditionally underrepresented groups, who in turn might be in a position to promote greater protection of the rights of those groups. This article considers the possible effects, positive and negative, of power-sharing arrangements on rights of women, minorities and indigenous people.

Keywords:

• power-sharing
• human rights
• minority rights
• women's rights
• indigenous people's rights

Acknowledgements

I am grateful to Stef Vandeginste and Sahla Aroussi and numerous participants at an expert seminar in Antwerp on human rights and power-sharing in May 2012, as well as to extremely helpful comments and suggestions from two anonymous reviewers. Any errors are mine alone.

Notes

Available at http://www.usip.org; www.c-r.org and http://www.peaceagreements.ulster.ac.uk. I rely on these three collections despite omissions and temporal limitations because each includes limited coding for provisions regarding women, ethnic minorities and/or indigenous persons, or both. This means this study involves a temporally constrained set of peace agreements, but absent more comprehensive coding in larger data sets, this is unavoidable. I also used the Uppsala Conflict Data Program peace agreements database to cross-check coding of power-sharing agreements only as the database does not code for provisions dealing with women, minorities or indigenous persons: at http://www.pcr.uu.se/research/ucdp/datasets/ucdp_peace_agreement_dataset/. The countries for which peace agreements were examined which contained elements of power-sharing as well as provisions for gender, minority or indigenous rights (structured in a variety of ways, as noted in the typology in this article, include UK/Northern Ireland, Sudan, South Africa (interim constitution, not formal peace agreement), Somalia, Sierra Leone, Rwanda, Burundi, Philippines (Mindanao), Papua New Guinea/Bougainville, Nepal, Mexico/Chiapas, Liberia, Israel/Palestine (1995, depending on characterisation of limited territorial autonomy), Iraq (constitution, not a formal peace agreement), India (Bodoland), Guatemala, Fiji (constitution, not a formal peace agreement), Eritrea (draft constitution, not a formal peace agreement), Democratic Republic of the Congo, Côte d'Ivoire, Colombia, Bosnia-Herzegovina and Bangladesh(Chittagong Hill Tracts). I have included constitutional arrangements which involve power-sharing which arise out of transition from violent conflict in the absence of a formal peace agreement here, but arguably these might be excluded.

Caroline A. Hartzell and Matthew Hoddie, Crafting Peace: Power-Sharing Institutions and the Negotiated Settlement of Civil Wars (Philadelphia: Pennsylvania State University Press, 2007).

Arend Lijphart, Democracy in Plural Societies: A Comparative Explanation (New Haven, CT: Yale University Press, 1977).

Chandra Lekha Sriram and Marie-Joelle Zahar, ‘The Perils of Power-Sharing: Africa and Beyond’, Africa Spectrum 44, no. 3 (2009): 11–39; Barbara F. Walter, ‘Designing Transitions from Civil War: Demobilization, Democratization, and Commitments to Peace’, International Security 24, no. 1 (Summer 1999): 127–55; Barbara F. Walter, ‘The Critical Barrier to Civil War Settlement’, International Organization 51, no. 3 (Summer 1997): 335–64.

Jack Snyder and Robert Jervis, ‘Civil War and the Security Dilemma’, in Civil Wars, Insecurity, and Intervention, ed. Barbara F. Walter and Jack Snyder (New York: Columbia University Press, 1999): 15–37; Barry R. Posen, ‘The Security Dilemma and Ethnic Conflict’, Survival 35, no. 1 (Spring 1993): 27–47. See also Caroline Hartzell, Matthew Hoddie and Donald Rothchild, ‘Stabilizing the Peace After Civil War: An Investigation of Some Key Variables’, International Organization 55, no. 1 (Winter 2001): 183–208; compare Alan Collins, ‘The Ethnic Security Dilemma: Evidence from Malaysia’, Contemporary Southeast Asia 20, no. 3 (December 1998): 261–79.

Matthew Hoddie and Caroline Hartzell, ‘Civil War Settlements and the Implementation of Military Power-Sharing Arrangements’, Journal of Peace Research 40, no. 3 (May 2003): 315; Barbara Walter, ‘Designing Transitions from Civil War’, in Civil Wars, Insecurity, and Intervention, ed. Barbara F. Walter and Jack Snyder (New York: Columbia University Press, 1999): 38–69.

Hartzell, Hoddie and Rothchild, ‘Stabilizing the Peace After Civil War’, 185–6.

Barbara F. Walter, Committing to Peace: The Successful Settlement of Civil Wars (Princeton, NJ: Princeton University Press, 2002); Timothy D. Sisk, Power Sharing and International Mediation in Ethnic Conflicts (Washington, DC: US Institute of Peace, 1996).

Walter, ‘Designing Transitions from Civil War’, 129; Walter, ‘The Critical Barrier to Civil War Settlement’, 340.

Caroline Hartzell, ‘Explaining the Stability of Negotiated Settlements to Intrastate Wars’, Journal of Conflict Resolution 43, no. 1 (February 1999): 5; for a wider discussion of these critical elements of a state, see Max Weber, ‘Politics as a Vocation’, in From Max Weber: Essays in Sociology, ed. H.H. Gerth and C. Wright Mills (London: Oxford University Press, 1946), 78.

Sriram and Zahar, ‘The Perils of Power-Sharing’ and Chandra Lekha Sriram, Peace as Governance: Power-Sharing, Armed Groups and Contemporary Peace Negotiations (London: Palgrave, 2008) discuss the impact of including in governance structures groups which may not have a genuine interest in governing for the populace.

Nadine Puechguirbal, ‘Gender and Peace Building in Africa: An Analysis of Some Structural Obstacles’, in Gender and Peace Building in Africa, ed. Dina Rodriguez and Edith Natakunda-Togboa (San José, Costa Rica: University for Peace, 2005), 2. Christine Chinkin, ‘Gender, Human Rights, and Peace Agreements’, Ohio State Journal on Dispute Resolution 18, no. 3 (2003), 871, points out in particular that fewer women have been in fighting forces, but also that where they were, they were largely sidelined at the negotiation phase; see also Tristan Anne Borer, ‘Gendered War and Gendered Peace: Truth Commissions and Postconflict Gender Violence: Lessons from South Africa’, Violence against Women 15, no. 10 (2009): 1169–93, at 1171; and Christine Bell and Catherine O'Rourke, ‘Does Feminism Need a Theory of Transitional Justice? An Introductory Essay’, International Journal of Transitional Justice 1 (2007): 23–44, at 23.

Anne Itto, ‘Guests at the Table? The Role of Women in Peace Processes’, Accord (2006), http://www.c-r.org/our-work/accord/sudan/women.php. As Stef Vandeginste has pointed out, the mere registration of rebel groups does not result in an immediate transformation of their approach to governance issues, and the result may be a ‘legitimacy gap’. Email communication, 1 March 2012.

Stef Vandeginste and Chandra Lekha Sriram, ‘Power Sharing and Transitional Justice: A Clash of Paradigms?’ Global Governance 17 (2011): 489–505.

United Nations Security Council Resolution 1325, UN Doc. S/RES/1325 (31 October 2000); UN Security Council Resolution 1820, UN Doc. S/RES/1820 (19 June 2008); Christine Bell and Catherine O'Rourke, ‘Peace Agreements or Pieces of Paper: The Impact of UNSC Resolution 1325 on Peace Processes and their Agreements’, International and Comparative Law Quarterly 59 (October 2010): 941–80; Christine Bell and Catherine O'Rourke, ‘The People's Peace: Peace Agreements, Civil Society, and Participatory Democracy’, International Political Science Review 28, no. 3 (2007): 293–324; Christine Chinkin, ‘Peace Agreements as a Means for Promoting Gender Equality and Ensuring Participation of Women’, United Nations Division for the Advancement for Women, UN Doc. EGM/PEACE/2003/BP.1 (31 October 2003); Isha Dyfan, ‘Peace Agreements as a Means for Promoting Gender Equality and Ensuring Participation of Women’, United Nations Division for the Advancement for Women, UN Doc. EGM/PEACE/2003/EP.5 (7 November 2003); Antonia Potter, ‘Gender Sensitivity: Nicety or Necessity in Peace-Process Management?’ Oslo Forum 2008; Elizabeth Porter, ‘Women, Political Decision-Making, and Peace-Building’, Global Change 15, no. 3 (October 2003): 245– 62; Christine Bell, Colm Campbell and Fionnaula Ní Aoláin, ‘Justice Discourses in Transition’, Social and Legal Studies 13, no. 3 (2004): 305–28; Sumie Nakaya, ‘Women and Gender Equality in Peace Processes: From Women at the Negotiating Table to Postwar Structural Reforms in Guatemala and Somalia’, Global Governance 9 (2003): 459–76; Puechguirbal, ‘Gender and Peace Building in Africa’, 1–12; Chinkin, ‘Gender, Human Rights, and Peace Agreements’.

Jérémie Gilbert, ‘Indigenous Peoples and Peace Agreements: Transforming Relationships or Empty Rhetoric?’, in Rethinking Transitions: Equality and Social Justice in Societies Emerging from Conflict, ed. Gaby Ore Aguilar and Felipe Gomez (Cambridge: Intersentia, 2011) at http://eprints.mdx.ac.uk/8352/.

UN Security Council Resolutions 1325 and 1820; Bell and O'Rourke, ‘Peace Agreements or Pieces of Paper?’

Christine Bell, ‘Peace Agreements: Their Nature and Legal Status’, American Journal of International Law 100 (2006): 373–412, at 391–4; Bell and O'Rourke, ‘Peace Agreements or Pieces of Paper?’, 948.

Chinkin, ‘Peace Agreements as a Means for Promoting Gender Equality’, 15.

Puechguirbal, ‘Women and Peace Building in Africa’, 2, 9, makes this point about women in particular.

Bell and O'Rourke, ‘Peace Agreements or Pieces of Paper?’ 948, 954, observe that 16% of peace agreements in their data set contain references to women.

Ibid., 959.

Or, as in the case of the Linas-Marcoussis Agreement for Côte d'Ivoire (24 January 2003), the only gender provision may have little to do with rights or participation of women; Annex I to that agreement entitled foreign men marrying Ivoirian women to obtain Ivoirian citizenship but had no similar clause for foreign women. See http://www.peaceagreements.ulster.ac.uk.

Gilbert, ‘Indigenous Peoples and Peace Agreements’, 217–22.

Darfur Peace Agreement (5 May 2006), Machakos Protocol (20 July 2002), refer generally to the principle of gender equality, the Agreement on Permanent Ceasefire and Security Arrangements Implementation Modalities between the Government of Sudan and the SPLM/SPLA during the Pre-interim and Interim Periods (31 December 2004) refers to the need for the DDR process to be gender-sensitive, and Eastern Sudan Peace Agreement (14 October 2006), provides generally for fair and equitable participation of citizens, all at http://www.peaceagreements.ulster.ac.uk.

Global and Inclusive Agreement on Transition in the Democratic Republic of Congo (16 December 2002), http://www.peaceagreements.ulster.ac.uk.

The Agreement Reached in Multi-Party Negotiations (10 April 1998) and Joint Declaration by the British and Irish Governments (1 May 2003), http://www.peaceagreements.ulster.ac.uk.

Bell and O'Rourke, ‘Peace Agreements or Pieces of Paper?’, 966–7.

Gilbert, ‘Indigenous Peoples and Peace Agreements’, 227.

Guatemala, Agreement on Identity and Rights of Indigenous Peoples, part II.B.1, http://www.incore.ulst.ac.uk/services/cds/agreement/pdf/guat12.pdf. The Guatemalan peace agreements are often included in analyses of power-sharing agreements, but it is worth noting that they lack any of the standard elements of power-sharing, although they do pave the way for the Unidad Revolucionaria Nacional Guatemalteca (URNG) rebel group to become a legal actor and political party. Similarly, the 2005 Iraqi Constitution, not a power-sharing agreement, offered a preambular promise to pay attention to women and their rights, a substantive clause promising equal rights to participate in public and political matters, and states that violence and abuse in the family is prohibited (15 October 2005), http://www.peaceagreements.ulster.ac.uk.

Agreement on the Monitoring of Arms and Armies (8 November 2006) and Comprehensive Agreement concluded between the Government of Nepal and the Communist Party of Nepal (Maoist) (21 November 1996), http://www.peaceagreements.ulster.ac.uk.

Luc Chounet-Cambas, ‘Negotiating Ceasefires: Dilemmas & Options for Mediators’, Mediation Practice Series (Geneva: Centre for Humanitarian Dialogue, 2011).

Chandra Lekha Sriram, Confronting Past Human Rights Violations: Justice Versus Peace in Times of Transition (London: Frank Cass, 2004), 78–106; Chinkin, ‘Peace Agreements as a Means for Promoting Gender Equality’, 22.

Comprehensive Peace Agreement between the Government of Liberia and the Liberians United for Reconciliation and Democracy (LURD) and the Movement for Democracy in Liberia (MODEL) and Political Parties (18 August 2003), http://www.peaceagreements.ulster.ac.uk; Chinkin, ‘Peace Agreements as a Means for Promoting Gender Equality’, 23, 26.

Peace Agreement between the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone (7 July 1999) Article XXXVIII, http://www.peaceagreements.ulster.ac.uk; Dyfan, ‘Peace Agreements as a Means of Promoting Gender Equality’, 6.

Constitutional Commission of Eritrea Draft Constitution (July 1996) and Constitution (Amendment) Act of the Republic of the Fiji Islands (25 July 1997), http://www.peaceagreements.ulster.ac.uk.

Bell and O'Rourke, ‘The People's Peace?’, 298.

Comprehensive Agreement on respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines (16 March 1998), http://www.peaceagreements.ulster.ac.uk.

Guatemala, Agreement on Identity and Rights of Indigenous Peoples, parts III and IV, http://www.incore.ulst.ac.uk/services/cds/agreement/pdf/guat12.pdf; Agreement on Resettlement of the Population Groups uprooted by the Armed Conflict (17 June 1994), Agreement on the Basis for the Legal Integration of the Unidad Revolucionaria Nacional Guatemalteca (12 December 1996), Agreement on the Strengthening of the Civilian Power and on the Role of the Armed Forces in a Democratic Society (19 September 1996), Agreement on the Social and Economic Aspects and Agrarian Situation (6 May 1996), http://www.peaceagreements.ulster.ac.uk.

Nakaya, ‘Women and Gender Equality in Peace Processes’, 465.

Mexico/Chiapas Agreements (16 February 1996), http://www.peaceagreements.ulster.ac.uk.

Gilbert, ‘Indigenous Peoples and Peace Agreements’, 220–28.

Sriram, Peace as Governance; Vandeginste and Sriram, ‘A Clash of Paradigms?’; and Bell and O'Rourke, ‘The People's Peace?’, 304–5.

Washington Agreement (1 March 1994), http://www.peaceagreements.ulster.ac.uk.

Framework Agreement on Police Restructuring, Reform and Democratization in Republika Srpska (9 December 1998), http://www.peaceagreements.ulster.ac.uk.

United Nations High Commissioner for Refugees, State of the World's Minorities 2008 (UNHCR, 2008), http://www.unhcr.org/refworld/country,,MRGI,,BDI,,48a7ead0a,0.html.

Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on the Integration of the Armed Forces of the Two Parties (3 August 1993), http://www.peaceagreements.ulster.ac.uk.

Political Constitution of Colombia (1991), articles 171 and 246–8, http://www.peaceagreements.ulster.ac.uk; on power-sharing in Colombia generally see Sriram, Peace as Governance, 143–80.

Agreement between the National Committee on Chittagong Hill tracts Constituted by the Government and the Parbattya Chattagram Janasanghati Samity (2 December 1997), http://www.peaceagreements.ulster.ac.uk; Bell and O'Rourke, ‘Peace Agreements or Pieces of Paper?’, 961.

Peace Agreement with the Moro National Liberation Front (2 September 1996), part III, http://www.peaceagreements.ulster.ac.uk.

Bell and O'Rourke, ‘The People's Peace?’, 303.

I am grateful to Stef Vandeginste for this point.

Bell and O'Rourke, ‘Peace Agreements or Pieces of Paper?’, 977.

Addis Ababa Agreement, Concluded at the First Session of the Conference on National Reconciliation in Somalia (27 March 1993), part IV; and The Transitional Federal Charter of the Somali Republic (29 January 2004), http://www.peaceagreements.ulster.ac.uk; Nakaya, ‘Women and Gender Equality in Peace Processes’, 467.

Memorandum of Settlement on Bodoland Territorial Council (10 February 2003), http://www.peaceagreements.ulster.ac.uk.

Constitution of Burundi 2005, article 164. I am grateful to Stef Vandeginste for this point.

Chinkin, ‘Peace Agreements as a Means for Promoting Gender Equality’, 27.

Nakaya, ‘Women and Gender Equality in Peace Processes’, 469–70; Bell and O'Rourke, ‘Peace Agreements or Pieces of Paper?’, 959.

Draft Basic Agreement Concerning the Bougainville Reconciliation Government (24 December 1998), part II, http://www.peaceagreements.ulster.ac.uk.

Sriram, Peace as Governance, 135–9.

Chinkin, ‘Peace Agreements as a Means for Promoting Gender Equality’, 27.

Richard E. Matland and Kathleen A. Montgomery, eds, Women's Access to Political Power in Post-Communist Europe (Oxford: Oxford University Press, 2003); Drude Dahlerup, ‘Electoral Gender Quotas: Between Equality of Opportunity and Equality of Result’, Representation 43, no. 2, (July 2007): 73–92.

I am grateful to Laura Davis and several other participants in the International Expert Seminar on Law, Power-Sharing and Human Rights convened at the University of Antwerp 10–11 May 2012 for some of these insights.

Potter, ‘Gender Sensitivity’, 59–60; Porter, ‘Women, Political Decision-Making, and Peace-Building’, 248; To be clear: many conflicts do have ethnic dimensions and some do result in power-sharing arrangements, which do in some cases set aside seats for ethnic groups or minorities, as discussed above. It is far less common that they include specific quotas for indigenous people.

Bell, Campbell and Ní Aoláin, ‘Justice Discourses in Transition’, 318.

Gilbert, ‘Indigenous Peoples and Peace Agreements’, 220. On the challenges of assessing implementation, see George Downs and Stephen John Stedman, ‘Evaluation Issues in Peace Implementation’, in Ending Civil Wars: The Implementation of Peace Agreements, ed. Stephen John Stedman, Donald Rothchild and Elizabeth M. Cousens (Boulder, CO: Lynne Rienner, 2002), 43–70.