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).

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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.

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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

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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.

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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

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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

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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

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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

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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
references 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.

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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

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