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Regulating ceasefires in the grey zone between war and peace

June 25, 2020
Hosam Edeen, Daraya Local Council, Syria

Dr Marika Sosnowski is an Australian qualified lawyer and a research associate with the German Institute for Global and Area Studies. Her primary research interests are in the fields of critical security studies, complex political order, local/rebel governance and legal systems. Marika’s research takes a more critical and empirical approach to security questions by examining how international and local arenas interface and influence relationships and power dynamics. Her primary geographical area of specialisation has been the Middle East, particularly Syria

Recent scholarship in the social sciences – primarily in the fields of anthropology, political economy, security and development – has found that ceasefires have effects on the ground beyond only halting violence. These include for other more political areas such as governance institutions, economic resources and citizenship and property rights. While parties to an armed conflict already exist in a legal relationship via international humanitarian law (IHL), this legal framework is mostly concerned with regulating the use of violence and the protection of civilians. It therefore does not provide adequate regulation for these more political consequences of ceasefires.

This post compliments a recent scholarly article I wrote on this topic for the Leiden Journal of International Law. It outlines the traditional understanding of ceasefires and canvasses three legal frameworks that could potentially help enhance the compliance of signatories through additional regulation – as contractual documents; as special agreements under Common Article 3; or under an expanded version of lex pacificatoria. While the former two have merits, I argue that ultimately lex pacificatoria provides a legal regime that takes into account that the written text of ceasefire agreements and the construction of the law are mutually shaping. Because of this, it is able to offer more flexible “programmatic standards”, rather than hard, codified law, that are well suited to dealing with the grey zone between war and peace that ceasefires occupy.

The traditional view of ceasefires

Most definitions of ceasefires conceptualise them as agreements designed to stop or reduce the violence of armed conflict. Definitions of ‘ceasefires’ include those by the Uppsala Conflict Data Program which defines a “ceasefire agreement” as one of six possible ways that a conflict can be terminated; “agreements, facilitated by a third party, that define the rules and modalities for conflict parties to stop fighting” (at 1); or, as “an end to or break in the fighting, whether or not it represents the final end of the war” (Page Fortna, at 45). The founding father of the laws of armed conflict Hugo Grotius assumed a ceasefire to be a temporary state of affairs that did not alter the legal state of war. He wrote that if hostilities resumed after a ceasefire is declared there is no need for a new declaration of war to be made since the legal state of war is “not dead but sleeping”.  The continuing authority of this definition is echoed by IHL which stipulates that a “truce” does not entail the suspension of the application of this framework or put an end to the legal state of war and its associated legal consequences. IHL contains relatively few provisions relating specifically to when ceasefire agreements should be negotiated, what they need to contain or how their terms need to be applied. Beyond this, IHL gives no more specific guidance on what acts are permitted or forbidden during a ceasefire.

What all these definitions have in common is their overwhelming focus on ceasefires as a way to stop or reduce the violence of armed conflict. However, rather than a ceasefire being seen as something that stops “whatever is done by force against the enemy” (Grotius, at 451), new scholarship on the effects ceasefires can have on areas beyond violence, such as governance institutions, economic resources and networks and citizenship and property rights suggests that a legal framework beyond IHL may be needed to generate certain standards and operational guidelines that provide flexible but enforceable expectations around what ceasefire agreements contain (i.e. their text) as well as their diverse ramifications on the ground. To understand the added value of this framework, it is first useful to set out the various ways in which ceasefires are traditionally understood from a legal perspective.

As contractual documents

While ceasefire agreements are not a contract in the business sense, ceasefire agreements certainly have most if not all of the elements of a common-sense way of understanding contractual documents. Ceasefire agreements are increasingly becoming a quid pro quo bargaining arrangement whereby parties are expected to give something in exchange for their supposedly humanitarian gesture of ceasing fire. These include the fact that ceasefires are generally in writing, include a number of carefully worded terms and clauses, are frequently negotiated with the help of an international third-party and are signed by the parties to the agreement. When viewed objectively, a reasonable assumption from a lay observer is therefore that ceasefires constitute a type of contract (or potentially even a treaty in inter-state conflicts).

This business-style dynamic of reciprocity, which implies that the humanitarian gesture of ceasing fire will only be granted in return for something else, such as troop withdrawal or humanitarian access, is reinforced by ceasefire negotiations in contemporary civil wars such as Syria, Yemen and Iraq. For example, in Yemen, Saudi Arabia agreed to a ceasefire in Hodeidah in exchange for Houthi forces redeploying from the city as well as from the ports of Salif and Ras Isa and in Homs in Syria, the UN mediated a ceasefire between the Syrian regime and local leaders in the Old City where the regime agreed to a ceasefire so that women, children and the elderly could be evacuated for medical reasons and rebel fighters would have the ability to “resolve their situation” with the government.

A negative consequence of the “commercialisation” of ceasefire negotiations is that the bargaining process primarily aims to halt violence or address dynamics directly relevant to the military arena, rather than a range of other salient political dynamics that conflict parties may be fighting over or interested in securing. Also, even if ceasefire agreements in intra-state conflicts are considered a type of contractual document that in theory would fall under domestic law, it remains unrealistic to expect enforceability to come from the state itself or through the physical intervention of a third-party. Practically speaking, this makes the benefits of using this as an additional legal lens to augment the efficacy of IHL relatively limited. While signing a ceasefire agreement that is also considered to be a legal contract may help in legitimising certain conflict actors, it arguably does little to assist with compliance or enforceability, particularly regarding contested areas beyond violence.

Special agreements under Common article 3

Sometimes ceasefires are understood as special agreements under IHL. Special agreements are a tool used to enhance compliance by state and non-state actors with particular elements of international humanitarian law or to reinforce pledges to abide by additional legal paradigms, such as human rights law. For example, to guarantee the protection of persons and their property and not to conduct forced movements of the civilian population, commit acts of violence against the civilian population or destroy property; or to abstain from torture and intimidation. In theory, the inclusion of these terms in a special agreement can be a reminder to parties of their pre-existing commitments under IHL and therefore helps in encouraging compliance.  

While minimum standards of IHL will continue to apply regardless, special agreements also enable parties to a conflict to bring into force additional legal obligations. In practice, however, there are no legal incentives for a party to include a special agreement in a ceasefire that covers more than the requisite IHL obligations. While it would be possible to consider all ceasefire agreements as incorporating the special agreement tool from the outset, states have been hesitant to do this out of fear a special agreement may grant a non-state group additional legitimacy (pages 572-573). Another obstacle is the unwillingness of parties to commit themselves to a broader range of legal obligations than required. This is understandable but means that using special agreements as a way of expanding or enhancing the regulation of ceasefire agreements is limited.

Under an expanded version of lex pacificatoria

Over the past two decades, Christine Bell has pioneered research into a new legal field she calls lex pacificatoria primarily in relation to better regulating the messy politico-legal space peace agreements occupy. The logic of lex pacificatoria is that the purpose of international law as it relates to peace settlements is not to regulate negotiation outcomes, but rather to set out broad normative parameters or “programmatic standards” that support the idea that negotiated outcomes should be both capable of implementation and accord with some sense of justice. These flexible guidelines are based on the assumption that the text of peace agreements and the practice of international law are mutually shaping and constitutive. Further, Bell argues that peace agreements need to be understood in light of a combination of domestic and international components, and in recognition of the fact that the enforcement of a peace agreement depends on political processes (at 305). Therefore lex pacificatoria is never a wholly formed set of rules of laws. Rather, it attempts to achieve a level of regulation and compliance while simultaneously leaving room for the contestation and negotiation over what concepts such as “accountability”, “justice”, and even “peace” mean and may require in different contexts. This stands in contrast to jus post bellum which is more firmly based on codified laws (i.e. IHL, criminal law and international human rights law) and uses them as a way to regulate the post-conflict domain.

I argue that expanding lex pacificatoria to cover partial ceasefires (i.e. agreements signed before a definitive peace agreement) is appealing because instead of offering strict binary divisions between war and peace or legal and illegal, the more amorphous environment created by what are commonly referred to as partial, lite or preliminary ceasefires is potentially better “governed” by a lex that is flexible and lends itself to negotiation and compromise rather than the application of fully formed legal norms. By considering both the terms ceasefire agreements contain and their diverse political and military ramifications on the ground, lex pacificatoria enables us to construct some guidelines that can be used to quasi-regulate the grey zone between war and peace. Instead of doing this through a categorisation of ceasefire terms as being either legally binding or non-binding, Cindy Wittke has noted that a better approach is to locate ceasefires on a legal continuum from low to high legalisation. Likewise, as the growing body of work on ceasefires being undertaken in the social sciences shows, ceasefire agreements have a range of consequences on the ground regardless of their enforceability, supposed success or legality.

For example, a series of ceasefires signed between Russia, Ukraine and separatist groups operating in the eastern region of Ukraine known as the Minsk Agreements have not brought peace but continue to shape political processes (at 285). These include in relation to governance, rights and security. In 2017, Ukraine submitted a suit against Russia to the International Court of Justice in a (creative) attempt to hold Russia accountable for breaching terms of the Minsk Agreements. In their arguments, both parties addressed debates over the legal status of ceasefire agreements (Verbatim Record, CR 2017/3, pages 17–18 para. 15-16). Their concern about the legal nature of ceasefires underscores the reality that ceasefires sit at a juncture in armed conflict where the division between the fields of politics and law is increasingly blurred. The submissions also point to the fact that the conflict parties were cautious about how ceasefire agreements can be used to contest legitimacy and authority and can potentially create forms of responsibility for signatories in both military and political domains.

Regulating ceasefires

In suggesting that additional legal tools are needed to manage and regulate ceasefire agreements – such as contractual documents, as special agreements or ideally as part of an emerging lex pacificatoria – my hope is to add to the social construction of the legality of ceasefire agreements in order to make them better able to form part of the already common set of rules, principles and practices that govern the international legal system. This is increasingly important in contemporary civil war environments because compliance depends more and more on legal status and (real or perceived) censure than physical enforcement mechanisms.

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