Mediator’s chamber at Ryswick (1697). Jan Van Vianen – Public Domain.
Mediation is an art, not a science, a pragmatic exercise in persuasion using the simple tools of common sense and logic, focussing on commonalities rather than rivalries, looking toward the future, turning the page on irreparable errors and trying to build a sustainable modus vivendi. Indeed, we humans have more commonalities than incompatibilities. We share a lot – beginning with our innate human dignity, the love of family and children, the hope for their future, the capacity for empathy, universal humanitarian values, a commitment to the rule of law, the UN Charter and its mechanisms.
As former US President Jimmy Carter said at the conferral of the Nobel Peace Prize in Oslo on Human Rights Day 10 December 2002: “War may sometimes be a necessary evil. But no matter how necessary, it is always an evil, never a good. We will not learn how to live together in peace by killing each other’s children. »[1]
While we agree on abstract values, we do not always have the same moral compass, the same priorities or the same understanding of the facts. For mediation to bear fruit, there must be — at a minimum — an incipient desire on the part of the hostile parties to break the stalemate, to remove obstacles to a compromise. As the saying goes, it takes two to tango[2], and if one party refuses to dance, there is no sense in attempting mediation.
War fatigue is a frequent pre-condition to peace negotiations, but an animus to listen and to consider options to end the slaughter is required. The major obstacle to negotiation is frequently the intransigence embedded in the military-industrial complex. As long as people are making money on the war, it will be difficult to stop it. Since time immemorial there have been war profiteers, and this plague will not end anytime soon, notwithstanding the noble principles enunciated in the UN Charter, the Universal Declaration of Human Rights and the nine core human rights treaties.
Authority and Credibility
Since war destroys the trust among the belligerent parties, they must rely on third-parties to help along. Despite doubts and hesitation, the belligerents must at least have a modicum of confidence in the mediator. In a two-party conflict, it is easier to find a mediator with sufficient moral authority to be accepted by the conflicting parties. That was the case in the successful mediation conducted by Nikolaus de Flue in Switzerland in the 15th century, thus avoiding a war between Swiss Cantons by virtue of a common-sense compromise reached at the Diet of Stans in 1481.[3] Bruder Klaus’ mediation was well received by the quarrelling canton leaders, who were genuinely looking for a peaceful, face-saving compromise.
One of the functions of the mediator is to facilitate the beginnings of an atmosphere of trust. This requires strict impartiality and objectivity on the part of the mediator, as well as a good measure of patience and perseverance. If the parties perceive the mediator as having his/her own preferences and prejudices, the mediation will fail. That is why, for instance, the Palestinians have never accepted the United States as a mediator in the Israel/Palestine crisis, because the US is unabashedly on Israel’s side[4]. The same can be said for the consummate hypocrite Tony Blair, who for a while was the Quartet’s envoy for negotiations between Israel and the Palestine authority[5], or for the EU Special Representative to the Palestinian/Israeli Peace Process[6].
Mediation must be carried out by persons who have no stake in the outcome of the deal. This holds true for the Russia/Ukraine conflict, which is essentially a US/EU/NATO/Ukraine vs. Russia conflict. It should be obvious that a believable mediator cannot not come from the US, UK, France, Germany. There are, however, numerous blueprints for peace and numerous qualified mediators who have offered their good offices, including Pope Francis[7], Latin American[8], African[9], and Asian[10] leaders.
In order to have authority and credibility, the mediator must not stand to gain from the outcome of the mediation. Not only factual impartiality but also emotional independence is required. The mediator must not only be a good listener, he/she must be capable of understanding the emotions of each party and must be skilful in using logic to marshal the facts and the competing narratives, so that a rational compromise may emerge. It is not the function of the mediator to challenge or dismantle political myths, which, although objectively false, are subjectively believed in and adamantly defended. The mediator must accept the myths as a “factum” to be reckoned with, but the myths must not be allowed to dictate the outcome of the mediation.
Obstacles to success
Intransigence constitutes a major obstacle to any kind of sensible dialogue. It is not only hatred for the “enemy”, but the necessity to reaffirm one’s own propaganda, the fear of losing face nationally and internationally. I do not suggest that politicians on both sides are necessarily in bad faith – although many are – I observe that many politicians actually believe their own propaganda and are incapable of envisaging that they could be wrong in their assessment of facts and the pre-history of any given conflict. What becomes very evident is that many politicians, particularly in NATO countries, have an under-developed sense of self-criticism and a strong sense of self-righteousness. Indeed, the binary mindset prevalent in the collective West and in the mainstream media, divides the world into good countries and bad countries, into democracies and autocracies, although these labels objectively do not apply.
I am reminded of three thinkers who have come to grips with the psychological dimension of power politics. As St. Augustine of Hippo wrote in Civitas Dei 4,4, “remota iustitia quid sunt regna nisi magna latrocinia?” Far away from justice, what are great kingdoms but grand larceny?” And as to the subjective/objective evaluation of reality, William Butler Yeats wrote in The Second Coming, “The best lack all conviction, while the worst are full of passionate intensity”[11]. Simpler said, Bertrand Russell “Fools and fanatics are always so certain of themselves, and wiser people so full of doubts”[12]
What no mediator should suggest
Penal sanctions for war crimes and crimes against humanity should not be part of the mediation and certainly not part of the peace deal, because such demands would invariably generate outrage and resentment on both sides and even in the eyes of third parties.
International criminal law has proven to be retrogression in human rights terms, because all-too-easily it has degenerated into lawfare against ousted government officials and military. Experience shows that the experiment with international criminal court has been plagued by selectivity and double-standards. It is not difficult to understand that the prosecution of only some criminals and the impunity of others is not justice, but an outrage of justice. It corrupts the ontology of the “rule of law” and the impartial administration of justice. The added value of an international criminal court could have existed if its objectivity and professionalism could be reliably ensured. The ICTY and ICTR have a very mixed record. The International Criminal Court has proven an aberration.
The much-praised Nuremberg and Tokyo trials were possible only because there was unconditional surrender by Germany and Japan, a scenario not likely to repeat itself, because any nuclear power would have recourse to nuclear weapons if its existence were in danger. It is inconceivable that Russia, China, France, United Kingdom, United States – or for that matter Israel, Pakistan or India – would ever surrender unconditionally. In the alternative, the world as we know it would disappear. Therefore, let us not even consider the fantasy of ending the Ukraine war through unconditional surrender and ensuing war crimes trials.
The Nuremberg and Tokyo trials are significant not because of their precedential value – since no country has observed its principles since their respective judgments of 1946 and 1947. There is no evidence that any politician has ever been deterred to engage in aggression or to perpetrate war crimes by the judgments, which many international lawyers consider fundamentally flawed, because in both cases we witnessed “victors tribunals”, and their rulings constituted vae victis, woe to the defeated. In order to have credibility, the tribunals would have had to prosecute just as firmly the war crimes committed by the Allies, many of them amounting to crimes against humanity, including the nuclear annihilation of population centres in Hiroshima and Nagasaki, the deliberate targeting of hundreds of cities and villages in Germany, causing the deaths of 600,000 civilians, the racist expulsion of some 15 million Germans from their homes in East Prussia, Pomerania, East Brandenburg, Upper- and Lower Silesia, Bohemia, Moravia, Hungary and Yugoslavia, occasioning the deaths of two million of them, by far and away the worst example of “ethnic cleansing” in the twentieth century.[13] The murder of at least 15,000 Polish prisoners of war at Katyn and elsewhere by direct order of Josef Stalin. Such mega-crimes perpetrated by Allied politicians and military remain unpunished to this day.
The Nuremberg and Tokyo trials are important primarily for historians of human behaviour, because they collected and catalogued evidence of war crimes and crimes against humanity. They have also been very useful in the propaganda of many countries, applied selectively and opportunistically as the politics of countries require.
Rather than referring the criminals on all sides of the Ukraine conflict to any ad hoc international criminal tribunal or to the discredited International Criminal Court[14], it would suffice to remind the parties to implement in good faith their existing obligations under Articles 49 to 52 of the First Geneva Convention of 1949, Articles 50-52 of the Second Geneva Convention, articles 129-131 of the Third Geneva Convention, and articles 146-148 of the Fourth Convention, which obliges all States parties to investigate and prosecute their own criminals.
It suffices to quote article 49 of the First Convention:
The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article .
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a ‘ prima facie ‘ caswhe.
Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article .
In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949.”
What mediators should propose
First and foremost, a mediator should argue that in order to achieve a sustainable peace, mutual respect must be reestablished, which requires inter alia a security architecture that ensures State sovereignty and the self-determination of peoples. Only by devising ways of living together in peace and establishing a just dispute-settlement mechanism will future conflict be prevented.
The mediator should persuade the belligerents that too much blood has been shed and that to promote reconciliation the belligerents must not perpetuate hate by instrumentalizing justice for purposes of revenge. International “lawfare” has proven counter-productive in the past and cannot advance reconciliation.
A mediator could also advance the idea of Truth and Reconciliation Commissions, as have been tried successfully in a number of Latin American and African countries and have brought a measure of redress to the victims and survivors.
A commitment to the UN Charter and to the principles of sovereignty and the right of self-determination of peoples must be part of every peace proposal. The territorial integrity of Ukraine in its borders of 2014 will not be possible to reestablish, because this would inevitably violate the right of self-determination of the peoples of Donbass and Crimea. If there is any doubt as to the will of the majority of the populations residing in these areas, the United Nations should conduct properly organized and monitored referenda.
Indeed, the tension between territorial integrity and self-determination can only be solved peacefully and must respect the human rights of all persons concerned. A sustainable peace is only possible if the people agree to live under a certain government. As the International Court of Justice established in its 2010 Advisory Opinion on Kosovo, the principle of territorial integrity only applies externally and cannot be used internally to cancel the right of self-determination of women and men living in the territories in question[15]. The same as the majority Albanian population of Kosovo cannot be forced back into the territorial integrity of Serbia, the majority Russian populations of Donbass and Crimea will never go back to Ukraine, unless they so decide by themselves without coercion. Fighting a war against the jus cogens right of self-determination of peoples is contrary to the letter and spirit of the UN Charter and all UN human rights treaties.
Conclusion
There are numerous viable blueprints for peace and valuable proposals from Latin American, African, Asian and European leaders and thinkers. What is missing is the readiness on the part of the politicians in NATO countries to envisage anything other than “Putin must lose”[16] or “Ukraine must win”[17]. It is evident that this is a proxy war and that it is not only the fate of Ukraine that is at issue, but the viability of a post-NATO world, i.e. a multipolar world under the United Nations and not under the United States and the once “almighty dollar.”
A simple conflict Ukraine-Russia could have been prevented, and even after the Russian invasion, it could have been solved within weeks by honest bilateral mediation. But the Ukraine war is a classical proxy war with the geopolitical interests of many countries, notably NATO and EU countries, playing a decisive role. These interests militate against a negotiated peace and bring the world into acute danger of nuclear confrontation. Already during the 1962 Cuban missile crisis, it was evident that in the post-nuclear world, every conflict between nuclear powers should be avoided, every tension de-escalated. Unfortunately, our leaders have forgotten President John F. Kennedy’s warning of 10 June 1963[18]:
“While defending our own vital interests, nuclear powers must avert those confrontations which bring an adversary to a choice of either a humiliating retreat or a nuclear war. To adopt that kind of course in the nuclear age would be evidence only of the bankruptcy of our policy–or of a collective death-wish for the world.”
Accordingly, the world needs mediators who will propose a viable quid pro quo as between the US and the Soviet Union in October 1962.
Proxy wars are difficult to end. The United States fought proxy wars in South East Asia (Vietnam, Laos, Cambodia), Afghanistan and Syria, resulting in millions of deaths, without, however, accomplishing the mission (other than generating profits for the military-industrial complex). When the US becomes weary of a particular war, it simply pulls out and turns the page. Let us hope that the US becomes weary of the Ukrainian adventure and decides to end it unilaterally, or by allowing a face-saving mediation.
Although the 12-point Chinese proposal for peace[19] is balanced and comprehensive, the collective West is so caught in its own web of political Sinophobia, that the US and the EU will surely oppose any and all initiatives from China, because they are unwilling to grant China a surge in international prestige that would ensue from a successful mediation.
The 10-point African proposal[20] has better chances, as it comes from a continent that is not perceived by the US and EU as a “competitor” or rival. Every mediator would do well to study it. This are key points:
+ The African delegation listens to and understands both the Russian and Ukrainian perspectives on the war;
+ The war must be settled and ended with negotiations;
+ A de-escalation of conflict on both sides;
+ That Africa recognises the countries’ sovereignty and believes all parties should work in terms of internationally recognised principles;
+ There need to be security guarantees;
+ Call for opening up of movement of grain shipments through the Black Sea and into Africa;
+ Grant humanitarian aid to all those suffering because of the conflict;
+ Free all prisoners of war on both sides;
+ Repatriate all children displaced by the war;
+ There should be post-war reconstruction, and
+ Further negotiations to end the war, with Africa contributing.
The Africans have reminded the belligerents that their war constitutes a grave danger for the entire planet, and that non-involved third parties in Latin America, Africa and Asia are suffering the consequences of the US/NATO/Ukraine vs. Russia war. Recent African initiatives at mediation in Kiev and Moscow constitute innovative steps toward rationality in international relations. But the Africans should also turn to the United States and NATO countries and persuade them that peace in Ukraine would be a win-win scenario not only for the people of Ukraine – but for the rest of the world as well.
Let common-sense mediation begin.
Notes.
[1] https://www.nobelprize.org/prizes/peace/2002/carter/lecture/
[2] This idiomatic expression originated in the song Takes Two to Tango, written and composed in 1952 by Al Hoffman and popularized by singer Pearl Bailey.
[3] Thomas Boos, Nicholas of Flue, 1417-1487, Swiss Hermit and Peacemaker, The Pentland Press, Edinburgh, 1999.
[4] https://www.nationalwarcouncil.org/2020/01/25/u-s-brokered-peace-attempts-between-israel-and-the-palestinians/
[5] https://www.palestine-studies.org/en/node/162560
[6] https://www.un.org/unispal/document/new-eu-special-representative-for-the-middle-east-peace-process-appointed-press-release/
[7] https://www.ukrinform.net/rubric-society/3729837-pope-war-in-ukraine-requires-creative-efforts-on-way-to-just-peace.html
https://edition.cnn.com/2023/04/30/europe/ukraine-pope-peace-mission-intl/index.html
[8] https://foreignpolicy.com/2023/05/02/brazil-russia-ukraine-war-lula-diplomacy-active-nonalignment/
[9]https://www.nytimes.com/2023/06/16/world/europe/ukraine-russia-african-peace-mission.html
[10] https://www.mfa.gov.cn/eng/zxxx_662805/202302/t20230224_11030713.html
[11] W.B.Yeats, “The Second Coming” httts://poets-org/poem/second-coming.
[12] Bertrand Russell, “The Triumph of Stupidity” May 10, 1933, in Mortals and Others, Routledge, 2009, p. 204
[13] Alfred de Zayas, Nemesis at Potsdam, Routledge 1977. De Zayas, A Terrible Revenge, Palgrave/Macmillan 1994.
[14] See chapter 4 of my book The Human Rights Industry, Clarity Press, Atlanta, 2023.
[15] https://www.icj-cij.org/case/141. See in particular para. 80.
[16] https://www.msn.com/en-gb/news/world/von-der-leyen-says-putin-must-lose-the-war-and-calls-for-more-democracy-in-response-to-russia-and-china/ar-AA11ehzj
https://www.ndtv.com/world-news/russia-president-vladimir-putin-must-face-world-criminal-court-over-war-crimes-in-ukraine-eu-chief-3348751
[17] https://www.theatlantic.com/ideas/archive/2022/09/ukraine-victory-russia-putin/671405/
https://time.com/6257285/ukraine-war-victory/
[18] https://time.com/6257285/ukraine-war-victory/
[19] https://www.mfa.gov.cn/eng/zxxx_662805/202302/t20230224_11030713.html
[20] https://www.globalresearch.ca/african-peace-mission-live-stream-broadcasting-russia-talks-cut-as-putin-interrupted-presentations/5822731
Alfred de Zayas is a law professor at the Geneva School of Diplomacy and served as a UN Independent Expert on International Order 2012-18. He is the author of ten books including “Building a Just World Order” Clarity Press, 2021.
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