—Armi Beatriz E. Bayot, University of Oxford Faculty of Law
[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]
In negotiating intrastate peace agreements, an important threshold that needs to be crossed by the conflict parties is addressing the meta-conflict, i.e., the conflict about what the conflict is about. Bell argues that disagreements about the nature of the conflict lead to disagreements about how the conflict should be addressed. Arguing that the conflict is about the lack of democracy, for instance, leads to one set of solutions, while the position that the conflict is spurred by “inter-group ethnic hatred” leads to another set of solutions. It is unlikely that a conflict could be easily classified as being rooted in only one of several possible causes. A single conflict often has multiple facets, and conflict parties will need to agree on what they deem to be major conflict facets that need to be addressed.
The initial agreement of conflict parties on the contours of the conflict, however, cannot take the place of a methodical analysis of its structural causes. Peace negotiations are exclusionary by design, and formal processes of agreement-drafting often leave out important voices – leading to a limited framing of the conflict. Moreover, determining the root causes of conflict cannot be subject to negotiation, which by nature involves compromise. And in contexts where potential catalysts for internal conflict such as rampant poverty, landlessness, and racial discrimination can be traced to colonial-era rights violations, determining the nature and root causes of conflict requires an examination of how colonial era harms may have contributed to present-day violence, and this would require more than just negotiation.
In his report dated 19 July 2021, the United Nations Special Rapporteur (UNSR) on the promotion of truth, justice, reparation and guarantees of non-repetition Fabian Salvioli argues that the mechanisms developed in the field of transitional justice can be valuable tools in responding to the legacy of rights violations in colonial contexts. While transitional justice projects have traditionally been limited to dealing with the consequences of conflict rather than root causes such as structural violence and economic, political, and social marginalisation, transitional justice mechanisms, such as truth commissions, reparations programmes, memorialisation, and guarantees of non-recurrence, can be designed specifically to investigate, address, and remedy colonial legacies.
Applying the lessons from the UNSR’s report specifically to the context of internal conflicts could radically transform contemporary peace processes. Employing transitional justice mechanisms in peace processes to inquire into the colonial roots of internal conflict will change the conversation around responsibility for harms in internal conflicts in at least two ways.
First, conflict-affected communities themselves, particularly those who have suffered colonial era harms, will have a central role in examining the nature and root causes of conflict vis-à-vis colonial legacies. Among the core legal foundations of transitional justice is international human rights law, which recognises the right of persons directly affected by decision-making to participate in such processes. Considering that peace negotiations often involve major changes on governmental form, territorial boundaries, and resource sharing, among others, conflict-affected communities cannot be kept away from the peace table, particularly in resolving the meta-conflict and in designing methods of addressing the conflict. This will be a challenge to the secrecy and exclusivity that has traditionally attended peace negotiations between conflict parties. The UNSR, however, argues that it is not possible to meaningfully remedy a violent past if affected communities are not part of the negotiation process, saying that “Rendering them invisible is tantamount to a new round of victimization.”
Second, when transitional justice mechanisms are employed to inquire into the colonial roots of internal conflict, a necessary consequence is seeking responsibility from former colonisers, as well as from the conflict actors themselves. The right to remedy and reparation also finds its basis in international human rights law. Where transitional justice mechanisms show that former colonisers laid the ground for the injustices that impelled conflict, such as land dispossession, exploitation, and marginalisation on racial or ethnic grounds, these injustices must be addressed by both the state party to the peace negotiations and the former colonisers. The state party must address these harms as a matter of obligation to its constituents, while former colonisers must be held responsible for past violations through truth-telling, justice measures, memorialisation, guarantees of non-recurrence, and, reparations for harms done.
Bringing the idea of reparations into peace negotiations shifts the framing of international intervention in internal conflicts. The UNSR asserts that, “Reparations should not and cannot be dressed up as humanitarian aid, assistance, or development cooperation, evading the assumption of due responsibilities.” To count as reparations, any measure must seek to benefit victims directly, with the aim of remedying the harms suffered, and must be accompanied by recognition of responsibility. This will be a challenge to international actors, specifically former colonisers, who provide technical and financial assistance to peace processes, as well as development aid. They may be willing to admit moral, historical, or political responsibility, but former colonising Powers balk at assuming legal responsibility for fear that one admission could set a precedence, hence the preference for aid through development cooperation. The UNSR argues, however, that development aid is not genuine reparation because “it perpetuates and reinforces an economic and political system that is based on colonial hierarchies of submission. Reparations, by contrast, imply that the former colonizing Power has a debt to the former colony.” Framed in this way, the involvement of former colonisers in the resolution of internal conflict cannot be characterised in purely cosmopolitan or humanitarian terms but must rather be viewed through the lens of justice for colonial harms.
If peace processes are to provide meaningful responses to protracted conflict, they must address both the consequences and the root causes of conflict– up to and including the colonial roots of the political, economic, and social exclusion that so often fuel internal conflict. Using transitional justice mechanisms in addressing colonial harms is one important way to provide such meaningful responses. The framework of transitional justice may upend the current design of peace talks, changing the dynamics from exclusion to inclusion and moving the conversation from aid to reparation. Some would argue that such an upheaval might make conflict parties and international actors hesitant to approach to peace table. On the other hand, failing to consider the transitional justice framework in peace processes may prolong and exacerbate colonial harms that persist to this day, making conflicts even more intractable. In any event, the UNSR’s words are worth considering, “Leaving (the) historical debt unpaid has generated more pain and challenges the conscience of an international system that should be based on respect for and the guarantee of human rights. Transgenerational damage can no longer be ignored.”
Suggested citation: Armi Beatriz E. Bayot, Truth-seeking in Peace Processes: Addressing Colonial Roots of Internal Conflict, Int’l J. Const. L. Blog, Oct. 13, 2021, at: http://www.iconnectblog.com/2021/10/truth-seeking-in-peace-processes-addressing-colonial-roots-of-internal-conflict/
 Defined here as documents produced by some or all of the protagonists of internal armed conflicts (usually the state and one or more non-state actors), after a period of discussion, that address violent conflicts with a view to ending them. See Christine Bell and Sanja Badanjak, ‘Introducing PA-X: A new peace agreement database and dataset’ (2019) 56(3) Journal of Peace Research 452, 456; Bell and Badanjak, in their guide to the PA-X Peace Agreement Database, classify peace agreements according to three categories that correspond to levels of conflicts, namely: interstate agreements relating to interstate conflict, intrastate agreements relating to intrastate conflict, and interstate agreements relating to intrastate conflict. According to the database definition, a peace agreement qualifies as an intrastate peace agreement where there is at least one internal party, even if there is more than one state party
 Christine Bell, Peace Agreements and Human Rights (OUP 2000) 15
 See for instance Mari Fitzduff ‘Meta-Conflict Resolution’ (Knowledge Base, Beyond Intractability September 2004) available at <https://www.beyondintractability.org/essay/meta-conflict-resolution> accessed on 11 October 2021, on meta-conflict analysis in conflict resolution, which looks at multiple potential causes and consequences of conflict and seeks ways to assist conflict parties to come to agreement on which to prioritise
 UNGA ‘Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Fabian Salvioli, Transitional justice measures and addressing the legacy of gross violations of human rights and international humanitarian law committed in colonial contexts (19 July 2021) 76th Session (2021) UN Doc A/76/180
 Ibid, 20
 See for instance Christine Bell ‘The “New Law” of Transitional Justice’ in Kai Ambos, Judith Large, and Marieke Wierda (eds), Building a Future on Peace and Justice (Springer 2009) 105
 UNGA ‘Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence’ (n 5). The UNSR notes that the right to take part in the conduct of public affairs, the right to equal participation in cultural life, and the right to an education that enables effective participation in society are recognised in various international instruments: Universal Declaration of Human Rights (art. 21); International Covenant on Civil and Political Rights (art. 25); International Convention on the Rights of All Migrant Workers and Members of Their Families (arts. 41 and 4 (2)); African Charter on Human and Peoples’ Rights (art.13 (1)); American Convention on Human Rights (art. 23 (1) (a)); Inter-American Democratic Charter (art. 2); Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (art. 3). Universal Declaration of Human Rights (art. 27); International Convention on the Elimination of All Forms of Racial Discrimination (art. 5 (e) (vi)). International Covenant on Economic, Social and Cultural Rights (arts. 13 (1) and 15 (1)). Moreover, the right of indigenous peoples to adequate participation as found in the collective human rights to free, prior, and informed consent and to freely elect representatives of a group as found in the United Nations Declaration on the Rights of Indigenous Peoples.
 UNGA ‘Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence’ (n 5)
 See for instance The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by consensus by the General Assembly in 2005, which codify the rights found in various international ; ibid, 13
 ibid, 7
 See Guidance Note of the Secretary General, United Nations Approach to Transitional Justice, March 2010.
 UNGA ‘Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence’ (n 5) 21