Introduction

The normativization of peace mediation, particularly by reference to international law, has shaped the field significantly in the 21st century. The United Nations (UN), regional organizations, international financial institutions, states active in the field of mediation, and non-governmental organizations have all adopted codes of conduct, guidelines and policies to provide their mediators with normative and operational guidance (see, for example, UN, 2012; ACCORD and AU, 2014; OSCE, 2014). In addition to articulating new norms of peacemaking, these documents increasingly urge compliance with international law in peace mediation. For example, the UN Guidance for Effective Mediation (UN, 2012: 16) states that peace agreements should ‘respect international humanitarian, human rights and refugee laws’ and that mediation takes place ‘within the framework constituted by … global and regional conventions, international humanitarian law, human rights and refugee laws and international criminal law, including, where applicable, the Rome Statute of the International Criminal Court’. Consequently, as noted by the European External Action Service (2016: 2), ‘those mediating in conflicts today are faced with clearer, more comprehensive, but also more complex, international legal and normative frameworks that attempt to define what is (and what is not) acceptable in negotiations to end armed violence’.

The increasing role attached to international law in peace mediation is driven by the assumption in international policy that conformity with international law and norms contributes to the ‘legitimacy’ of the negotiation process and ‘durability’ of the resultant peace agreements (UN, 2012; ACCORD and AU, 2014). The existence of a normative framework, the assumption goes, provides negotiating parties with a common, objective language to frame their demands and stipulates outer limits that render certain issues non-negotiable. Although they bind and guide the mediators affiliated to the respective organization, the guidelines and policy documents laying out normative parameters for peace mediation indirectly create a normative framework for peace negotiations as the ultimate aim is compliance by the negotiating parties. The availability of normative parameters thus facilitates negotiations that take place in the shadow of violence and in an atmosphere of mutual distrust between states and armed opposition groups.

This chapter challenges these assumptions circulated in international policy and scholarship by probing into the contingency and complexity of the roles international law plays in peace negotiations.