Sie sind auf Seite 1von 10

Diplomatic Conflict Resolution

Didier PFirter 1

Indeed I feel most honoured to have been invited to give the keynote address to this illustrious gathering. As a lawyer by training and a diplomat by vocation, the subject of this conference is of great interest to me. In search of ways to resolve conflicts I studied law and specialised in International and Comparative Constitutional Law. And aiming to convince rather than fight or impose, I then became a diplomat. I would however hold that the boundary between the different forms of conflict resolution is much more fluid than one might at first sight think. Diplomatic conflict resolution can hardly be successful without a good dose of pressure and thus imposition. While arbitration and adjudication can hardly be imposed if they are not based on convincing arguments at least in the international sphere. Diplomatic conflict resolution can include arbitration. In the 19th Century the Swiss Federal Council was for instance asked to fix the border between Brazil and British Guiana and between Colombia and Venezuela. Courts can find themselves to some extent in a mediating role, so the International Court of Justice in the North Sea Continental Shelf Case of the Federal Republic of Germany against the kingdoms of Denmark and the Netherlands in 1969. And diplomatically mandated adjudicating commissions, like the UN Boundary Commission for Ethiopia and Eritrea, established by the Algiers cease-fire agreement in 2000, can find themselves in the uncomfortable position of being bound by their mandate, like a court by the law, to take a decision in this case over the little town of Badme which they themselves do not find necessarily the most appropriate and wise under the circumstances and which may well fuel the conflict rather than resolve it. While courts and arbiters tend to apportion right and wrong, diplomatic mediators must seek to convince both parties to obtain their agreement. In doing so they must be guided by the law, they must also often deviate from a strict implementation of legal principles if one of the parties is strong enough or circumstances otherwise make it seem appropriate. This can give diplomatic mediators clear advantages over judges and arbiters in the real world, but it also exposes them to sometimes aggressive criticism and painful agonising over the right thing to do. How many lives should be put at risk to uphold legal principles? And how far can one go in giving in to might for the sake of saving lives?
1 Ambassador at Large for Special Assignments (including Middle East and Columbia), former Special Envoy of Federal Council for the issue of the Emblems of the Geneva Conventions, former Legal Advisor of the UN Secretary Generals Good Offices on Cyprus (Annan Plan).

22

Diplomatic ConFlict Resolution

The archetype of diplomatic conflict resolution is, of course, the pure facilitation or mediation. Its success naturally depends on numerous circumstances extraneous to the facilitation or mediation, but also on the mediators skills. She or he must firstly gain the trust of the parties. Only then can she or he tackle the substance of the conflict. Profound knowledge of the facts and their history is a prerequisite in this endeavour, but equally if not more important are psychological skills and namely a great capacity for empathy. The reality of conflicts consists of shades of grey. The more one dives into it, the more one realises that there is little black and white. The press and the political discourse tend to obfuscate this. Conflicts are usually complex situations, where much more wrong has been done by and to both sides than can possibly be redressed through any solution. Solutions therefore tend to be bitter pills, unsatisfactory to both parties if they are to be somewhat balanced. A mediator or even a mere facilitator can therefore, in my opinion, only succeed if she or he is capable of putting her or himself in the shoes of the people on both sides of the divide, of feeling their pain, their anguish and most treasured aspirations; all of which are usually nurtured by a complex and often bitter history perceived through glasses much tainted by legend, glorification, vilification and manipulation. It is of little avail to stick to the dry historic facts as they are not what shape the thinking of the parties. One must therefore be able to see the conflict with the eyes of the parties, as they have come to see it, based on their actual or imagined collective experience. The comparison that comes to mind when I try to assess the required empathic capacity is that of an actor, who can only do a convincing job if she or he can truly identify with the role she or he has to impersonate. This must however, in my opinion, not go as far as to adopt the position of the parties in ones discourse with them. Though many mediators do precisely this, and are often temporarily successful with this tactic. The mediator should instead strive to reconcile the positions also on the emotional level, and ideally succeed in presenting a consolidated view of all aspects of the conflict which both sides can identify with. This is, especially in the beginning, certainly the harder way as parties tend to hear much more loudly the aspects of this consolidated vision that represent the view of the other side. In the long run, I consider it to be a more successful approach, however, than that of double-talk, which is bound to eventually blow up in ones face. The second quality that I consider crucial for a diplomatic mediator or facilitator is creativity. If conflicts were easy to resolve, one would not need mediators. When one tries to tackle old and entrenched conflicts, one is walking a mine field. It starts with terminology. Innocent words become red rags capable of causing mortal offence and the inadvertent use of the wrong term can prematurely end a mediators tenure. Many things have already been tried and rejected by either side, if not by both. The German language with its ease for creating new terminology is thus a useful mother tongue for a would-be mediator, even if mediations nowadays are mostly conducted in the language of Shakespeare.

KeYnote: Didier PFirter

23

As indispensable as these requirements may be, they will not be enough to convince a horse to drink if it is not thirsty. And combat horses have an amazing faculty for not being thirsty. And they are most rarely thirsty at the same time as their adversary. In Cyprus the conventional mediators wisdom was that there had never been two leaders at the negotiating table who actually wanted to solve the conflict. There were occasionally such leaders on both sides, but they were never lucky to face an equally willing counterpart. Often enough the mediator seems to be the only thirsty person at the table. Now Mr. No will talk to Mr. Never, a Turkish Cypriot opposition leader once commented a change in leadership on the Greek Cypriot side. Though he failed to say who was who in his eyes. Chances look good that for the first time in almost 50 years there are now two thirsty leaders on the island. If a diplomatic mediator has no means to increase the thirst of the parties to the conflict resolution, her or his chances of ultimate success are minimal. Such is the situation of small state mediators like Switzerland. Having no means of pressure certainly increases the credibility of the mediator and makes her or him an ideal choice if both parties are truly longing for a solution. Even where this is not the case, an uninterested mediator can make an important contribution to building some trust between the parties and to narrowing the gap. If ultimate success will more often than not elude them, they nonetheless play a crucial role in defusing explosive situations and preparing the ground for solutions. Some diplomatic mediators are however in a position of turning up the heat under the parties to increase their thirst for solving the conflict. This is obviously the case of regional or global powers. It is also, depending on the circumstances, the case of regional or global multilateral actors such as OSCE , AU or the United Nations. Under specific circumstances it can even be the case of small states. As depository of the Geneva Conventions, Switzerland plays a special role in the development of international humanitarian law and this position can considerably enhance its capacity to resolve conflicts in that field if it acts in close cooperation with other interested nations. In the course of my career, I have been in almost all possible positions in which a diplomatic mediator or facilitator can be; a fly on the wall as legal advisor and number two of the United Nations Secretary Generals Good Offices for Cyprus and later a virtual arbiter in the same capacity when the United Nations had been requested by the parties, under some pressure from the United States and the EU , to complete a plan that would be submitted to referendum if the parties could not agree by a certain date. Working for the Swiss government, I had an inverted experience and keenly felt the difference between first acting on behalf of the depository of the Geneva Conventions in solving the issue of the emblems recognised by those conventions and later as the special envoy of Switzerland for the different conflicts in the Middle East. It is not obvious to me which position is preferable, from a personal point of view. Less clout may bring frustration, but also more freedom and room for creativity. More clout comes

24

Diplomatic ConFlict Resolution

with obvious importance which may soothe the ego, but also with the burden of a huge responsibility which is not easy to bear. It is in these latter positions that one can imagine how judges and arbiters must feel.

Discussion

Carl Baudenbacher

Thank you very much, Ambassador Pfirter, for this wonderful first speech. I might add that there is a community now building up, particularly in the United States but also in Europe, dealing with what is usually referred to as judicialisation of international law. This community consists of more or less the same faces and whenever they talk about the topic, they always start with diplomacy and then they go on and say, but you know the key development is something else. The key development is judicialisation. More and more international courts, more and more judges become active and the diplomats are successively moving to the background. That is why we felt that it would make sense to have as a first keynote speaker a diplomat and we are particularly grateful that someone of your standing and with your experience has agreed to speak at our conference. I am convinced that your relatively short remarks have made it clear that the picture is much broader than just international courts. So I would like to open up for discussion.
Bernhard EhrenZeller

You gave a very interesting explanation of the possibilities of mediation in the diplomatic world and especially of the role of Switzerland in that kind of dispute settlement. But in these months, in the last few years perhaps, there were some problems regarding the notoriety of Switzerland as a mediator. The public seemed to have some doubts about whether Switzerland as a mediator has really been neutral. Could you perhaps comment on that? A judge is independent, however, a mediator after months and months of mediation possibly gets closer to one party than to the other. Considering the means of mediationofficial, unofficial and informal ,the question comes up, if mediation is really the right way to resolve some conflicts.
Didier PFirter

Are you referring to any specific conflict, are you referring to Columbia? It is what I said at some point in my address that if you try to have a balanced view and to see both sides pain and legitimate aspirations and to express them in a consolidated discourse, the parties inevitably will tend to hear what they do not like much more loudly than what they like. This is precisely the drawback of being in a neutral position. As a matter of fact, Columbia has never accused Switzerland of not being neutral; it has accused us of being too neutral. These were the words of the Columbian High Commissioner for Peace. In the view of the Columbian government, there is a conflict between a

26

Discussion

democratically elected legitimate government and a criminal gang of drug dealers and hijackers and it is not appropriate for a self-respecting state with a long democratic tradition like Switzerland to be neutral between two such parties. What they failed to understand, I think, is that it is one thing where Switzerland stands as a state in the international community, where our place clearly has to be with the democratically elected government of Columbia and there can be no doubt that the current Columbian government and the current Columbian President enjoy overwhelming support of the Columbian population. It is something else if you are officially mandated by the government of Columbia to play a role in resolving aspects of the conflict, that there in this particular specific role you must be neutral. You cannot say we are on the side of the government but now we are going to try and solve the conflict between the government and the guerrillas. And this is a situation in which one finds oneself often. We also found ourselves in the same dilemma with the UN in Cyprus. I would contest, however, what you said, that the more you are involved the more sympathetic you tend to become towards one side. My experience has rather been the opposite. It has been that when you start working with a conflict and you have necessarily partial knowledge, you are much influenced by the press and political discourse; you tend to have more sympathies towards one side. And the more you get to hear details and hear people out and see how they view things, what they went through, the more you can see that the truth is not black and white, but very complex and that from the subjective point of view of the parties they are both right.
NiKolaos LaVranos

My name is Nikos Lavranos. The name sounds Greek but I am not asking the question as a Greek with regard to Cyprus, let me state that clearly. I liked what you said, and I truly hope that there will be a quick solution to this problem, since, as an EC law expert, I find it very strange that one part of Cyprus is a member of the UN and the other part is somehow in a black hole. But to come back to the question, in regard to the proliferation of courts and tribunals and so forth especially in the context of the Cyprus dispute it appears to me, that there is also a proliferation of diplomats, of missions, of mediators and of all sorts of different parties. Can that be a problem in terms of overlap? And if so, can that kind of proliferation be an obstacle to a solution? In other words, would it not be better if only one mediator would try to get the job done?
Didier PFirter

I fully agree with you. It can be a problem. Parties tend to forum shop, of course, if they have a choice. And they tend to blackmail the would-be mediator by saying, well, if you are not doing it the way I like, there are others who are waiting. I do not think it was a problem in Cyprus, certainly not during the time I was involved. Many countries have special envoys for Cyprus. I did not have the impression that, save for probably two, they played much of a role. The UN was very much in the driving seat, I must say that Alvaro De Soto played his hand very well in this regard. Of course, in order to be in the driving seat when you do not really hold the cards, or certainly not all of

KeYnote: Didier PFirter

27

them, you have to closely work with those who do hold the cards in order to earn not only the trust of the parties, but also of those interested powers so that they let you be in the driving seat; which does not mean that we got instructions from those powers as has often been said and written by people who were not involved and who have not spoken to those who were involved. I can firmly assess here that all the decisions that were ever taken, regarding how things evolved and what was to be proposed in Cyprus were taken by the UN . Not one decision, in the positive sense, was imposed on the UN by any power which said you have to do this. There were a couple of situations where we did not do things that we might have otherwise done because we were advised not to do these things. So there was sort of a veto power if you want, of course never formalised, but there was never any manipulation or imposition of actions by outside powers on the UN . And in my opinion, this model which Alvaro Del Soto has developed in his successful mediation in El Salvador, where he closely worked with the interested states, is a very promising one. One has to maintain a single shop, or one stop line if a mediation is to be successful and at the same time one cannot ignore the others if one wants them to grant you this status.
Carl Baudenbacher

May I just, before giving the floor to other people, add something, Ambassador? Even while you spoke previously, I was amazed by how many panels there seem to be between adjudication and diplomacy and now it turns out that there is more. Now, regarding the proliferation of courts and proliferation of diplomats, you said that there is also the parallel of a potential forum shopping, that the parties pick the forum which they think is most favourable to them. But on the other side, is there not also a development in progress in that mediators are offering themselves in order to attract parties? If I am not mistaken, the Swiss Foreign Minister has been accused by conservative politicians in this country of being too pro-active in offering Switzerlands services. That is something an international court can hardly do. But still, in the area of international courts, there are mechanisms by which you try to attract cases. Would you like to comment on this?
Didier PFirter

In the field in which I have worked we have never approached unwilling parties. For instance one new track that we started in the last two years was Lebanon. It was at the request of all the Lebanese parties. Unfortunately, to some extent, there are fewer would-be mediating states nowadays than before, during the Cold War. You have Sweden, you have Austria and Finland, who have become EU Member States and therefore members of a powerful group of nations which is rarely neutralnot even if it wanted to be; once you are too powerful you cannot really be neutral because your opinion carries so much weight. And at the same time, some of the divisions are growing deeper and it is for a country like Switzerland not only an opportunity to place itself in the international arena and make the best of its situation of not being a member of

28

Discussion

the EU or NATO or other powerful groups, I would argue it is actually a responsibility. Other countries who are members of the EU carry their responsibilities in other ways. And being in the situation in which we are, we have to play a complimentary role and we have to try and build bridges. This is not as some people tend to think, also in Switzerland contrary to what others may do through the projection of power, through sanctions etc., it is complementary because sanctions are imposed and power is used or menaced in order to get people to change their positions and eventually acquiesce to a mediators solution. But for this to happen you also need someone to build the bridges that these people eventually will have to cross, when sanctions or the use of power will have done their work.
Diana PanKe

I have a rather personal question for Ambassador Pfirter. I would be interested in how you personally evaluate the effectiveness of diplomatic mediation vis--vis judicialised, legalised dispute settlement when it comes to the implementation phase. I myself, as political scientist, when thinking about parties, I think about unitary actors. Very often you have a government facing domestic veto players, in particular in conflicts where the governments abilities to act and implement things might be limited. And while diplomatic mediation might be extremely creative in finding a particular solution to a conflict, judicialised dispute settlement, legalised dispute settlement might have a big advantage in the implementation phase, because an authoritative judgement differentially empowers a government vis--vis domestic veto players. I was just interested in whether you see that the same way.
Didier PFirter

The main thing I would see in this context is that implementation is a phase in conflict resolution which is traditionally not given enough attention. Many good solutions have not been implemented because people concentrated so much on the substance of the solution and so little on how it will be implemented. So it is certainly a very important, crucial aspect. There may be an advantage for judicial solutions in this field, because they tend to be clearer and more rigid, so that there can be less discussion. There is a vice among some mediators in that they think there is virtue in being ambiguous. I think it is the mother of all sins for a mediator. I am glad to have learned from Alvaro Del Soto that it is better to have painful truth and clarity before a solution is adopted, than start a new conflict the day after in haggling over what this ambiguity actually means. There may be an advantage in judicial solutions in that they can afford more easily to be absolutely clear.
Erich SchanZe

In your rich presentation you referred to creativity. And I just wonder whether you could possibly return to that notion. Is creativity more important than professional ideology? And what exactly do you mean by creativity? What is the relation between

KeYnote: Didier PFirter

29

creativity and normativity in terms of the regularities you referred to in your speech? I got the impression, that the disputes that were effectively settled, mostly contained re ferences to known cases and events. For instance, I worked with a person in the context of the Law of the Sea Conference who simply knew hundreds of stories and he used to settle conflicts in this very aggressive battlefield, simply by alluding to his extremely rich knowledge about past normativity. I wonder how you draw the line between normativity and creativity?
Didier PFirter

I do not think there is any antagony between the two concepts. In my opinion, a solution must be absolutely clear and unambiguous. The creativity comes in formulating things in such a way that they can be accepted by the parties, because they build up very antagonistic, very absolute positions and they build them up publicly so that they can tell you, well, I cannot possibly accept that, you know I have publicly told my people that never ever, only over my dead body. And then somehow you have to overcome this in order to come to what, as you say, may seem to be the obvious solution. I would describe this in a way as squaring the circle; I think, in Switzerland we have developed a skill at this. We had a brief civil war between federalists and confederalists in the middle of the 19th Century. And the federalists who won were wise enough to build a clearly, purely federalist state, but to give as much trimmings and decorations to the confederalists so that they could eventually live with it. So they called the federation a confederation. They said that the Cantons were sovereign within the limits of the Constitution which precisely said that they were not sovereign. And many things like this. We tried to do some of these things in Cyprus. A federation was out by the Turkish Cypriots. On the other hand, sovereignty for the constituent states was in and it was out for the Greek Cypriots. Eventually, we invented the word sovereingly. Now the constituent states would sovereignly exercise their powers within the federal Constitution. Some people then argued that this was a word that did not exist and did not mean anything. We were lucky enough to find that Shakespeare had already used it and therefore it did very well exist and must mean something. These are the sort of things to which I allude. I think it is more in the way you present things but not only. For instance, there are clear dilemmas. You have a situation like in Cyprus where you have less than 20% Turkish Cypriots, you have more than 80% Greek Cypriots, where you have a history that the Turkish Cypriots had veto power on certain issues and none on others. On those latter issues the Greek Cypriots used to completely ignore the Turkish, going as far as adopting the Greek national anthem as the Cypriot national anthem. And then you try to find a way which on the one hand makes it necessary for the Greek Cypriots to take into account the view of the Turkish Cypriots and on the other hand also takes into account that there are four times more Greek than Turkish Cypriots and does avoid deadlocks. And there you do need a certain amount of creativity to come up with solutions that try to bridge this obvious dilemma.

30

Discussion

Anne Van AaKen

I have a question concerning the training in mediation. You talked about personal skills, which in my opinion are very important. I guess there is a lot of training on the job. But you also talked about the requirement of psychological skills. Now we know that for example national judges are getting more and more trained in mediation. Germany, for instance, has a whole mediation programme, which might lead to more legitimacy for this dispute settlement method. However, I am not sure about that. Could you comment on that? Now mediation, as far as I know, is rather under-theorised. We do not really know how those things work. There is, however, quite a useful theory that very much comes back to what Ernst Mohr said, namely behavioural economics, which is a joint undertaking of psychologists and economists. And they are very much focused on looking for what kind of biases individuals have. As a reference point they take the rational individual. They demonstrate how many biases people at the mediation table have. Now we know that people decide differently depending on how you frame the situation to them, how you frame losses they might incur or gains they might have. We do know people are overly optimistic. We do know that they have plenty of cognitive biases. And mediators would have the function of debiasing the errors people make in order to come to a solution. To put it more bluntly, they are able to show participants that there could be a positive sum game, they are not playing a zero sum game but there are possibilities of having a positive sum game. I guess this is also part of what you meant by creativity. If there is this kind of theory and if there is mediation, let me come to my question, is there any training in the diplomatic service on mediation? Or is this just training on the job? And if there is training, what exactly would be the theory you would refer to in the training?
Didier PFirter

I am afraid you are asking the wrong person. I am not much of a believer in theoretical training and I have quite a bit of difficulty with the theories of mediation and the way they approach things. I believe more in talent and in learning by doing. I have been through a, fortunately, quite successful process between Israelis and Palestinians representing the whole political spectrum. It went from a founder of the settlement movement in the West Bank all the way to Islamists and they met and they engaged in a very, I would say, prosperous or promising process. We had professional mediators with us to help us in doing this but my impression was that they tend to treat the parties to the conflict like patients in a hospital. And these people of course are as intelligent, as wise, as learned as we are and they resent being treated like that and will not go along with it. So, I think you have to approach it differently. I would use the term emotional intelligence which has become sort of a fashionable term. People who are parties to a conflict feel so wronged and so misunderstood. If you can show them that

Das könnte Ihnen auch gefallen