Negotiating Peace: Legal Mechanisms for Conflict Resolution in a Fragmented World

During​‍​‌‍​‍‌​‍​‌‍​‍‌ times that are most often related to the popular phrase “modern problems require modern solutions”, the mechanisms that are most frequently used to deal with global conflicts have not changed in the way that the problems have, over time. Currently, global conflicts involve a complicated mixture of non-state actors, cyber technologies, asymmetric operations, and hybrid warfare.

There used to be a time when “international conflict” could simply mean a dispute between sovereign states; now, it has become a combination of civil wars or intra-state conflicts in which groups demand separation, or more social, political, or economic power. Such complex disputes require proper, lawful, and binding modes of resolutions, and that is precisely the point at which the legal mechanisms embedded in international law become of vital importance.

This article deals with the difficulties that international institutions face in negotiating peace and dealing with modern conflicts, as well as managing the power dynamics of the current world order.

Historically, conflicts were wars between two or more nations with a clear separation between the military and civilians. The nature of these conflicts changed dramatically in the post-Cold War period. Nowadays, these conflicts are portrayed as local disturbances or revolts in the countries of the involved parties rather than disputes between states. What essentially makes these conflicts so dangerous for the human race is the fact that they involve complicated dynamics of residents, insurgent factions, state armed forces, and government officials that are violence networks intertwined closely.

Various countries in Africa, Asia, and the Middle East such as Rwanda, Sri Lanka, and Syria have confronted long-lasting internal conflicts that have been escalated by ethnic, religious, and ideological divisions.

Such conflicts that target the basic belief system of a community or a country, tend to be very personal and extremely difficult to solve through mediation. Contrary to traditional wars which were fueled by territorial and political ambitions, civil wars mainly come from struggles for identity, dignity, and survival.

Mary Kaldor, who is famous for her studies on global governance and human security, considers these current conflicts as “New Wars“¹ basically describing them as worldwide wars with characteristics of fragmentation and decentralization of state power.

In these conflicts, the number of participants is limited, the legitimacy of warring parties is weak, traditional fights are infrequent, and most of the violence is directed at the civilians. Local predations, external funding, and diaspora support, heavily determine the possibility of a war, at the same time there may be strategic compliance between opposing ideological groups.

One of the best examples of such a case could be seen in the establishment of NATO (North Atlantic Treaty Organization) and the Warsaw Pact–the two political bodies which were the representatives of the opposing sides of capitalism and communism, and their allied countries.

Today’s technological developments have led to “Hybrid Warfare“–a form of war that functions within a strategic “grey zone” between war and peace. This allows the state to follow its geopolitical goals without entering the next level of an open conventional war.

It includes the use of regular military forces with irregular tactics, public deception, cyber operations, and proxy actors who can be employed by both state and non-state institutions. A deeper insight into the evolution of war is the increasing dominance of missiles, drones, precision-guided weapons, and cyber capabilities. These developments have changed the traditional method of warfare and, at the same time, allowed low-cost, long-range, highly targeted attacks.

In addition, developments in cyber warfare have changed modern warfare significantly by the formation of an “invisible battlefield” that allows for attacks on critical infrastructure and the disruption of military capabilities without the use of conventional forces.

The shift towards autonomous systems, cyber operations, and hybrid warfare poses a challenge to the core legal principles of “Distinction, Proportionality, and Accountability“ that are part of international humanitarian law.² The issues that are raised by today’s conflicts have been spoken about by the International Court of Justice in the Legality of Threat or Use of Nuclear Weapons (1996)³ Advisory Opinion, where the court acknowledged that the principles of humanitarian law are applicable in every case, even up to the extent of technologically advanced warfare, and that countries need to agree on common ground in the areas of arms control and disarmament.

These changes from conventional wars to an era of “new wars” along with rapid technological change and globalization have put pressure on the current legal mechanisms that were designed to regulate conflicts and maintain international peace.

International courts and tribunals remain the most reliable and established means of settling international disputes as they offer a formal, rule-based system for dealing with breaches of international law. The two most important institutions that serve this purpose are the International Court of Justice (ICJ) and the International Criminal Court (ICC).

The International Court of Justice (ICJ) was established in 1945 and is headquartered at the Peace Palace in The Hague. It serves as the main court of the United Nations (UN), resolving disputes between states and providing advisory opinions to UN bodies and specialized agencies. As a result, it is the only court in the world with jurisdiction over all 193 UN member states. By offering a forum for the settlement of disagreements regarding territorial sovereignty, treaty interpretations, and state obligations, the ICJ plays a crucial role in the de-escalation process between participating states.

The involvement of the ICJ in settling conflicts and arranging peaceful dispute resolutions through the medium of law can be observed in instances such as Nicaragua v. United States (1986)⁴, where the court deemed that the use of force and facilitation of armed groups within another sovereign state are acts of violation of international law, i.e., the U.S. was guilty of breaking international law by aiding the Contras in their revolt against the Sandinistas and, at the same time, by mining Nicaragua’s harbours.

This milestone court decision confirmed the prohibition of the use of force against the territorial integrity or political independence of any state under Article 2(4) of the UN charter and demonstrated the way that legal adjudication can act as a substitute for the use of force. In the same way in Bosnia and Herzegovina v. Serbia and Montenegro (2007)⁵, the Court clarified state responsibility in cases of genocide, asserting that Serbia didn’t commit genocide, nor did it conspire to its commission.This finding enhanced international accountability through the responsibility of a state to prevent genocide under the Genocide Convention of 1948.

On​‍​‌‍​‍‌​‍​‌‍​‍‌ the other hand, the ICC focuses on putting individuals on trial for their actions. The ICC, formed under the 1988 Rome Statute, aims at the investigation and prosecution of persons responsible for genocide, crimes against humanity, war crimes, and the crime of aggression.

Whereas the ICJ decides the civil responsibility of states, the ICC is the one to make sure that those political leaders, military commanders, and other perpetrators of mass atrocities are the ones who get criminally punished. This can be seen in instances such as Prosecutor v. Thomas Lubanga Dyilo (2012)⁶–the first decision made by the Court concerning the war crime of conscripting, enlisting or using children under the age of 15 to actively participate in hostilities. Likewise, the trial of Jean-Pierre Bemba (at Trial Stage)⁷ was the first instance where the ICC found an accused guilty under Article 28 of the Rome Statute and also issued a conviction for sexual and gender-based crimes that strengthened the command responsibility principle in contemporary warfare.

Individually, the ICJ and the ICC are like the double foundations of international justice. They have, on the one hand, the ICJ which deals with state responsibility and, on the other hand, the ICC which deals with individual criminal liability, both of which are necessary for lasting peace.

Nevertheless, both courts are structurally and politically limited in their capability to handle today’s conflicts despite their significance and the very first ideals of their establishment. The ICJ jurisdiction is solely reliant on the consent of the states, thus it often incapacitates the Court to adjudicate disputes of parties that are unwilling to engage. As the Courts do not have an independent mechanism to enforce their decisions, i.e. they rely on the United Nations Security Council (UNSC) for the implementation of their judgments, the power balance in the UNSC is such that political interests and the veto powers of the permanent members (P-5) more often than not hinder the enforcement’s effectiveness.

The ICC is confronted with even more severe restraints. Large world powers like the USA, Russia, and China are not among the Rome Statute signatories, which lessens the Court’s worldwide outreach and acceptance. The ICC is short of an internal enforcement agency and is reliant on local authorities for the arrest and handing over of the accused people.

The continuous failure in apprehending people like Omar al-Bashir⁸, in spite of the ICC arrest warrants for genocide and crimes against humanity in Sudan, is an example of the enforcement side’s institutional weakness when they are dependent on state cooperation. The modern power dynamics have nearly been against the goal of the establishments almost since the time when the institutions were formed, and the unequal state participation is still there as well which continues to affect the actual cause of their establishment.

Being the primary body responsible for maintaining international peace and security, the UNSC, along with peacekeeping operations of the United Nations, acts as one of its most visible conflict-management instruments.

The UNSC handles conflicts by sending out its own investigators to examine issues and then suggesting peaceful solutions such as negotiation, mediation through the VI Chapter of the UN Charter, applying sanctions like embargoes on arms, travel bans under Article 41,⁹ and authorizing peacekeeping missions with a mandate and troops under Article 42¹⁰ of the VII Chapter of the UN Charter.

The aim of peacekeeping missions of the UN which consist of military, police, and civilian personnel  which are sent to the areas of conflict is to ensure the protection of the civilian population, observe ceasefire agreements, provide assistance to the political processes, and allow the delivery of humanitarian aid through the implementation of various mandates targeted at achieving lasting peace.

The efficiency of UN peacekeeping can be judged from successful operations like UNTAC (United Nations Transitional Authority in Cambodia)¹¹ and UNAMSIL (United Nations Mission in Sierra Leone)¹², that have made significant contributions to post-conflict stabilization and democratic transition. 

However, there are some limitations of the Security Council that have been revealed in the latest conflicts of Ukraine and Gaza. Due to the veto power of the permanent members, the institution has not been able to make the right decisions. The structural imbalance within the Security Council that exists thus far continues to be the reason for the collective security system envisaged by the UN Charter to be less effective than expected.

The world is largely determined by factors such as internal conflicts, non-state actors, hybrid warfare, and rapid technological advancement; hence, the traditional understanding of warfare and peace have changed significantly. As a result of conflicts becoming more fragmented, legal mechanisms’ role in negotiating and sustaining peace has become even more necessary.

The existence of these institutions such as the ICJ and ICC mandated on concurrently handling international disputes and UN peacekeeping operations, mediation efforts, and evolving norms of international law, help to alleviate the impact of these challenges and are therefore still viable pillars of the global peace architecture. However, their effectiveness is often compromised by factors such as political interests, jurisdictional limitations, uneven state cooperation, and the changes in modern warfare.

Notwithstanding these difficulties, law still remains one of the very few universally accepted instruments by which violent confrontation can be transformed into structured dialogue and accountability. As quoted by Hans Kelsen, “Peace is not simply the absence of war, but the presence of justice”.¹³

The establishment of sustainable peace goes beyond the application of military force; it calls for legitimacy, fairness, and institutional trust which are at the core of legal processes. For international law to still have its place in a changing battlefield, we ought to be working on strengthening international cooperation and modernizing legal frameworks that would be capable of effectively dealing with hybrid as well as cyber conflicts. The age of fragmented conflicts and shifting power structures calls for negotiating peace through law not just as a strategic choice but also as the moral and legal obligation of the international ‍​‌‍​‍‌​‍​‌‍​‍‌community.

By Varsha Nair, 2nd Year B. A. LL. B. (Hons.), Faculty of Law, The Maharaja Sayajirao University of Baroda, Vadodara.