Stopping Wars and Making Peace : Studies in International Intervention [1 ed.] 9789047440901, 9789004178557

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Stopping Wars and Making Peace

International Humanitarian Law Series VOLUME 27 Editors-in-Chief H.E. Judge Sir Christopher Greenwood Professor Timothy L.H. McCormack Editorial Advisory Board Professor Georges Abi-Saab H.E. Judge George H. Aldrich Madame Justice Louise Arbour Professor Ove Bring Professor Antonio Cassese Professor John Dugard Professor Dr. Horst Fischer Dr. Hans-Peter Gasser Professor Leslie C. Green H.E. Judge Geza Herczegh Professor Frits Kalshoven Professor Ruth Lapidoth Professor Gabrielle Kirk McDonald H.E. Judge Theodor Meron Captain J. Ashley Roach Professor Michael Schmitt Professor Jiri Toman The International Humanitarian Law Series is a series of monographs and edited volumes which aims to promote scholarly analysis and discussion of both the theory and practice of the international legal regulation of armed conflict. The series explores substantive issues of International Humanitarian Law including, – protection for victims of armed conflict and regulation of the means and methods of warfare –

questions of application of the various legal regimes for the conduct of armed conflict

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issues relating to the implementation of International Humanitarian Law obligations

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national and international approaches to the enforcement of the law and

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the interactions between International Humanitarian Law and other related areas of international law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and International Criminal Law.

The titles in this series are listed at the end of this volume.

Stopping Wars and Making Peace: Studies in International Intervention Edited by

Kristen Eichensehr and W. Michael Reisman

LEIDEN • BOSTON 2009

Printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Stopping wars and making peace : studies in international intervention / edited by Kristen Eichensehr and W. Michael Reisman. p. cm. -- (International humanitarian law series ; v. 27) Includes bibliographical references and index. ISBN 978-90-04-17855-7 1. Intervention (International law) 2. War (International law) 3. Peace. I. Eichensehr, Kristen. II. Reisman, W. Michael (William Michael), 1939

KZ6374.S77 2009 341.5’84--dc22

2009023434

isbn: 978 90 04 17855 7 Copyright 2009 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Hotei Publishing, idc Publishers, Martinus Nijhoff Publishers and vsp. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa. Fees are subject to change. Cover photo © United Nations printed and bound in the netherlands.

Table of Contents

Acknowledgments Notes on Contributors Introduction Chapter 1 War-Stopping Techniques in the Falklands Christina Parajon I. II. III. IV.

Introduction History of the Conflict The War War-Stopping Techniques A. U.S. Shuttle Diplomacy 1. London Round One 2. Buenos Aires Round One 3. London Round Two 4. Buenos Aires Round Two B. The Peruvian Mediation C. The Secretary-General’s Good Offices V. Appraisal of War-Stopping Measures A. Disputants’ Domestic Constraints B. The Haig Mediation: Problems of Timing, Credibility, Process, and Mixed Messages 1. Timing: Overcoming Optimism Bias 2. Credibility and Authority 3. Process: The Shuttling War-Stopper 4. Mixing Messages C. Belaunde’s Mediation: Problems of Interest and Process 1. Interests of the Mediator 2. Process: Detachment D. UN Involvement 1. Timing: The Inflection Point 2. Credibility: The Taint of Past Failures 3. Credibility: The Secretary-General with Only His Good Offices 4. Process: Mixing Enforcement and Mediation VI. Conclusion and Lessons Learned

xi xiii xv 1 1 2 7 9 9 10 11 13 13 16 18 20 20 24 24 27 28 29 31 31 33 34 34 35 36 36 38

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Table of  Contents

Chapter 2 Nagorno Karabakh: A War without Peace Nicholas W. Miller I. Introduction II. Background III. The History of Nagorno Karabakh A. The Russian Empire B. World War I and Caucasian Independence IV. A Century of Conflict A. The Soviet Period B. The Road to War C. Collapse of Soviet Power and the Period of Open Warfare V. Failed War-Stopping (1991-1994) A. Yeltsin-Nazarbayev Mediation (1991) B. Turkish and Iranian Mediation Efforts (1992) C. CSCE/OSCE Mediation Efforts Begin (1992) D. Competition between Russia and the CSCE (19921994) E. 1993 CSCE/OSCE Peace Plan F. Renewed Russian Mediation (Summer 1993) VI. War-Stopping without Peace (1994-2008) A. Competitive Russian and CSCE Mediation Efforts (1994) B. Cooperation between CSCE/OSCE and Russia (1994-1996) C. France, Russia, and the United States Take Over Mediation (1997-Present) D. A Decade without Progress (1998-2008) VII. Analysis and Conclusions Chapter 3 War and Peace in Rwanda Tom Dannenbaum I. Introduction II. A Brief History of Rwanda Prior to the Conflict A. Rwanda under Colonial Rule B. Tutsi Exodus and the Rise of a New Leadership in Exile C. Postcolonial Rwanda III. The War between the RPF and the Government of Rwanda, 1990-1993 A. Early Skirmishes B. Early Efforts to Stop the War C. The Inefficacy of the Regional Efforts at WarStopping

43 43 43 44 45 46 47 47 48 50 54 54 56 58 60 62 63 64 65 67 68 69 70 77 77 78 79 81 83 86 86 87 87

Table of  Contents D. Explaining the Failure of the Regional WarStopping Efforts in 1991 E. Democratization, Political Fragmentation, and Radicalization in Kigali F. The Internationally Mediated Arusha Peace Process IV. Stalling, Nonimplementation, and Genocide A. Stalling and Nonimplementation B. The Assassination of Habyarimana, Genocide, and the Withdrawal of Peacekeepers C. RPF Victory and the Displacement of the War V. Why Did Arusha Fail and What Could Have Been Done Differently? VI. Conclusion—Lessons for Peacemakers and WarStoppers Chapter 4 War-Stopping and Peacemaking during the Malayan Emergency (1948-1960) Colby E. Barrett I. Introduction II. Early History and Geography of the Malayan Peninsula (30,000 B.C.-1924) A. Geography and Settlement B. European Occupation III. The Foundations of Communism and World War II (1925-1947) A. The Rise of the MCP B. British Defeat C. Japanese Occupation D. Malayan Resistance and Lai Tek E. The Postwar Era IV. Early British Failures and Innovations (1948-1951) A. The World Setting B. MCP Strategy and Tactics C. British Strategy and Operations D. British Tactics E. The Briggs Plan V. Tactical, Operational, and Strategic Victory (1952-1957) A. The Arrival of General Sir Gerald Templer B. Politics C. Military Doctrine and Operations D. Police, Intelligence, and Information Services E. Negotiations and Independence VI. Aftermath and Evaluation (1958-1963) VII. Conclusion

vii 89 91 93 101 101 104 106 108 117 121 121 123 123 124 125 126 126 127 128 129 130 130 131 132 134 135 137 137 138 139 140 142 142 146

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Table of  Contents

Chapter 5 Separatist Insurgency in Southern Thailand: An Approach to Peacemaking Jonathan Ross-Harrington I. Introduction II. Conflict History A. From Annexation to Organized Insurgency (19061959) B. The Height of Organized Resistance (1959-1981) C. A New Approach: Government Intervention, Simmering Tensions, and Insurgent Fragmentation (1981-2001) D. Enter Thaksin: A Breakdown of Relative Stability (2001-2004) III. Current Phase: 2004-Present A. Critical Events B. Key Trends C. Insurgent Groups and Violent Actors 1. Barisan Revolusi Nasional-Coordinate (BRNC) 2. Gerakan Mujahideen Islam Pattani (GMIP) 3. Pattani United Liberation Organization (PULO) and New-PULO 4. Paramilitaries and Militias 5. Foreign Elements D. Ideology, Objectives, and Strategy of the Insurgents IV. A Framework for Understanding Violence and Promoting Peace in Southern Thailand A. Conflict Drivers: Identity, Behavior, and Structure 1. Identity 2. Behavior 3. Structure B. The Evolving Role of Religion as an Independent Conflict Driver C. The Dynamic Interaction of Conflict Drivers V. Past Approaches to War-Stopping and Peacemaking in Southern Thailand A. The General Phibun Model B. The General Prem Model C. The Thaksin Model VI. Peacemaking Strategies in Southern Thailand A. Challenges to a Lasting Peace B. Elements of a Comprehensive Peacemaking Strategy in Southern Thailand 1. Draining the Bathwater: Addressing LongStanding Grievances of the General Population

147 147 148 149 151 153 154 156 156 159 162 162 163 163 163 164 164 166 166 166 168 169 169 172 172 173 174 175 176 177 178 178

Table of  Contents 2.

A New Approach to Counterinsurgency (COIN) Operations 3. Relieving Intercommunal Tensions: Locating Middle-Range and Grassroots Agents of Peace 4. Malaysian Cooperation VII. Conclusion Chapter 6 War-Stopping and Peacemaking in Mozambique Caroline A. Gross I. Introduction II. Colonial History and Independence, 1498-1975 A. Portuguese Presence B. The Struggle for Independence III. Mozambican Civil War, 1976-1992 A. Causes and Parties 1. Frelimo 2. Renamo B. Cold War Effects C. War Operations 1. Renamo Tactics and Goals 2. Frelimo’s Response: Too Little, Too Late IV. Negotiating an End to War, 1988-1992 A. Failed Negotiations 1. Nkomati Accord 2. Pretoria Declaration B. The Road to Rome C. Rome V. From War-Stopping to Peacemaking, 1992 Onward A. ONUMOZ B. Postelection Period C. Factors that Helped Maintain the Peace 1. Lack of Precious Resources 2. Demobilization First, Elections Second 3. Incentives for Renamo to Stay Out of the Bush 4. Remarkable Economic Development and Optimism 5. Lack of an Ethnic Element to the Conflict 6. Support—and Exhaustion—of the Population VI. Conclusion Index

ix 180 181 182 183 185 185 185 185 186 187 187 187 189 190 191 191 192 194 194 194 195 196 200 205 205 206 206 207 207 208 208 208 209 209 213

Acknowledgments

The Editors wish to thank Dean Harold Koh, Acting Dean Kate Stith, and the Yale Law School for their generous assistance. They acknowledge the assistance of Mahnoush Arsanjani, Richard Ré, Lindy Melman, Maria Angelini, and the staff at Brill. In particular, the Editors thank Cina Teixeira Santos for administering the production of the book with her customary skill, patience and good humor. K.E. and W.M.R.

Notes on Contributors Colby E. Barrett, Yale Law School ’08, is a former Ground Intelligence Officer in the United States Marine Corps, where he led infantry and scout/sniper platoons throughout the Pacific Rim and Middle East. He holds a B.S. in Chemistry from the University of California at Berkeley and spent a semester at Oxford University studying the law of war. Tom Dannenbaum is a member of the Yale Law School class of 2010 and a Ph.D. candidate in political philosophy and international relations at Princeton University. He holds a B.A. in philosophy and public policy from Stanford University. In addition to his academic research on peacemaking and postconflict reconciliation, Tom has worked for the Appeals Chamber of the International Criminal Tribunals for Rwanda and the former Yugoslavia. Kristen Eichensehr, Yale Law School ’08, holds an M. Phil. in International Relations from the University of Cambridge and a B.A. in Government from Harvard University. She has worked in academic and nongovernmental organization settings on a variety of use of force and post-conflict reconstruction issues. Caroline A. Gross is a member of the Yale Law School class of 2010. She holds a B.A. in History and Science from Harvard University. She spent a year working on the rehabilitation of Mozambique’s Gorongosa National Park, a strategic site during the war in Mozambique that suffered major wartime devastation. Nicholas W. Miller, Yale Law School ’08, is an associate at Debevoise & Plimpton LLP in New York City. He is a graduate of the University of South Carolina Honors College and holds an M. Phil. in International Relations from Oxford University. Christina Parajon is a member of the Yale Law School class of 2010. She graduated from Princeton University, where she majored in the Woodrow Wilson School of Public and International Affairs, and spent a year working in the Center for PostConflict Peace and Stability Operations at the U.S. Institute of Peace. W. Michael Reisman is the Myres S. McDougal Professor of International Law at the Yale Law School. Jonathan Ross-Harrington is a member of the Yale Law School class of 2010. He holds a B.A. in International Relations from the University of St. Andrews and a M.A. in International Security Studies from Georgetown University’s School of Foreign Service. Prior to law school, his professional career focused on counterterrorism policy and Asian security. He was formerly affiliated with the Centre for the Study of Terrorism and Political Violence in the United Kingdom, and has traveled extensively throughout southeast Asia.

Introduction

During most of our history, war—the purposive application of violence through the military instrument for specific political ends—was a basic instrument of statecraft. For the most part, war was considered a lawful, honorable, ennobling, and even romantic pursuit. By contrast, peacemaking may have been extolled by some prophets (not all of them), but it remained a marginal and indeed incongruous interstate activity. Ending wars was essentially the belligerents’ concern; a war would end when the belligerents ended it. Unsolicited peacemaking was suspicious meddling that was never assumed to be altruistic and, probably, rarely was, for the political changes to be wrought by a war could prove beneficial to states that were not involved. For the most part, wars ended when one side was defeated or anticipated defeat and sued for peace, when both sides were exhausted, when, in seasonal and serial warfare, it was time to suspend the battles and harvest the crops, or when the war simply burned itself out. The experience of the twentieth century’s two world wars has changed, at least, the official view. The UN Charter’s Preamble opens with the words: “We the Peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our life-time has brought untold sorrow to mankind [. . .] do hereby establish an international organization to be known as the United Nations.” The introduction of ever more destructive weapons, the drastic escalation of civilian deaths, and the economic and environmental devastation that modern war brought combined to forge an international legal impulse to stop, if not prevent, wars, resolve ongoing conflicts, and build peace. Within the United Nations, the practice of “peacekeeping” and various reports, papers, and “agendas for peace” produced by innumerable UN bodies have made stopping wars and making peace a major objective and responsibility of international and regional organizations. Termination of conflict involves two distinct, though interstimulating, operations. The first operation is stopping a war. Belligerents put down their weapons. There is a “cease-fire,” a “cesser le feu,” a “waffenstillstand.” They stop hacking and firing at each other. They stand down. They may separate physically. There is, however, an expectation, of varying probability, that the war may or will resume. This expectation is the distinguishing characteristic of a war that has only been stopped. The second distinct operation, making peace, involves permanently stopping the war by changing that critical expectation. Once that expectation has changed, perceptions of insiders and outsiders change as well. Hence, the breakdown of a cease-fire and the resumption of a stopped war seem to excite considerably less legal dissonance than the breakdown of a real peace treaty.

xvi

Kristen Eichensehr and W. Michael Reisman

Stopping a war is a useful, if not indispensable, step toward making peace, but it does not lead ineluctably to peace, nor does the international community’s interposition of “peacekeepers”; their title notwithstanding, peacekeepers only try to keep a stopped war stopped. Making peace is a separate operation, often applying some parts of the same armamentarium but in very different ways. A major goal of this book is to take a step toward reclaiming the terminology used to describe international interventions into war scenarios. Too often the term “peace” is used to describe situations that are merely stopped wars. Peacekeepers are sent to a country, the shooting stops, and peace is declared. But there is no peace to keep; the peacekeepers are merely keeping a stopped war stopped. Pulling out the peacekeepers is a much easier and less morally laden decision if one engages in the helpful delusion that the peacekeepers are leaving peace rather than pulling out of a war. It is our hope that one of the effects of disaggregating the two enterprises will be to guide decision makers to evaluate more realistically the likely effects of their decisions to intervene or cease an intervention. Specifically, understanding that a stopped war is not peace is the first step to understanding what is necessary to achieve real peace. In practice, the analytical distinction between war-stopping and peacemaking often breaks down. As cruel as it sounds, one of the most effective ways of making peace is to win a war, and peacemaking, itself, may sometimes require the exercise of high levels of coercion. There are “irrational,” even tragic wars. Some conflicts are driven by deeply held cultural imperatives and, rather than the expectation of gain, promise only net losses to belligerents. But there are also rational wars in which the decision to resort to violence has been carefully calculated by one of the sides. The nostrum that in war everyone loses is not always correct. The fact is that in some wars one side (and some outsiders) may do quite well indeed. In most modern armed conflict, whether international or internal, and whether conventional or terroristic, at least one of the belligerents commences the conflict with the not necessarily irrational (and not necessarily enthusiastic) expectation that the application of violence, its projected costs notwithstanding, will still leave it, on net, better off than would the use of some other available nonviolent mode. Inis Claude observed that “[p]eace has universal appeal only as an abstraction; in the concrete case, commitment to peace is rarely unqualified.” Thus, the prospect of stopping a war, whether on an interim or permanent basis, before the initial or now-evolved objectives have been achieved, may look quite different to each of the protagonists as well as to different third parties. Moreover, at any moment in armed conflict, one of the belligerents (and not necessarily the initiator) is likely to believe that this military method of resolving disputes now favors it more than its adversary. There is a tendency to assume that the party accommodating the external actor that is trying to arrange a stop to the fighting demonstrates, by this alone, that it is the virtuous and peace-loving side, while the party that wants 

Inis L. Claude, Jr., UN Efforts at Settlement of the Falkland Islands Crisis, in The Falklands War: Lessons for Strategy, Diplomacy, and International Law 118, 121 (Alberto R. Coll & Anthony C. Arend eds., 1985).

Introduction xvii to press the battle to a clear conclusion is the perfidious warmonger. A moment’s reflection should make clear that this cannot be true. In serial wars, different parties will alternately press for stopping or continuing, depending on how each projects the fortunes of battle for itself at that moment. Stopping a war, then, is a major challenge to anyone, individual, state, or inter-governmental organization. In fact, international efforts at stopping wars and making peace, in the era in which such initiatives have become lawful and virtuous, have proved remarkably unsuccessful. Nor are there many examples to serve as models from the past. The great peace conferences of the twentieth century, perhaps the most celebrated examples of international peacemaking, essentially divided the spoils among the victors and imposed conditions on the vanquished. The inaptly named Versailles Peace Conference ending the First World War ratified the victory in the war but failed to make peace; in part, it laid the basis for the Second World War. The aftermath of the Second World War, though complicated by the genesis of the Cold War, proved more successful. The Marshall Plan ensured that defeated Germany and the countries that it had devastated could move forward with recovery and reconstruction, paving the way for reconciliation and peace. The Schuman Plan and the European Coal and Steel Community it birthed laid the foundation for deepening ties; eventually peace took root between France and Germany, and, finally, all of Western Europe, making war between such countries unthinkable today. As discouraging as the record of stopping wars and making peace is, at the outset of the twenty-first century, it seems more urgent than ever. Factors such as the proliferation of ever more destructive weapons, the growing sense of insecurity and expectation of violence, the increasing difficulty of containing wars within a single arena, and the threat of breakdown of order, with the prospect of epidemics and mass migration, all work to intensify the demand to stop wars and to make peace. To explore these issues, we designed a seminar at the Yale Law School for law and graduate students in which we examined, more generally, the theoretical literature on stopping wars and making peace and then tried to apply it to a number of concrete cases. Each student in the seminar undertook to study, in depth, one conflict and the efforts that had been undertaken to stop it and transform it into a peace system. In each case, the student tried to extract any general lessons that might be learned from the incident that he or she studied. Theory is valuable but we were not trying to elaborate a theory; rather we sought to extract guidelines and principles that might serve those called upon to undertake to stop wars and make peace. The papers collected here are, we believe, of use both to scholars and diplomats trying to stop wars and make peace. That said, the lessons are not encouraging. There are relatively few examples among the papers of successful efforts to stop wars and make peace. But four instructive points do emerge. First, the identity of the war-stopper or peacemaker is crucial. The intervener must have credibility with both parties or be working in conjunction with another intervener such that each of the warring parties is willing to engage with the warstopping or peacemaking efforts. As mentioned above, either operation may require the threat or application of some amount of coercion against the warring parties; thus an intervener must have leverage over the parties, whether by threats of deprivation or promises of indulgence, and must be attentive and credibly willing to devote

xviii Kristen Eichensehr and W. Michael Reisman resources and effort to the war-stopping or peacemaking efforts. Christina Parajon’s chapter on the Falklands War illustrates the problem of mediators who lack credibility and/or leverage. The chapters on Nagorno-Karabakh and Rwanda by Nicholas Miller and Tom Dannenbaum, respectively, demonstrate the terrible results and utter inefficacy of inattentive mediators. Second, war-stopping or peacemaking initiatives must be carefully timed. Would-be war-stoppers or peacemakers must be alert for l’instant propice—the propitious moment—when the conflict is ripe for intervention. For instance, there may be a moment at which troops are deployed or resources otherwise committed. Until that time, the parties may be receptive to intervention, but, afterwards, their domestic constituencies will expect victory, not negotiation, virtually foreclosing the opportunity for effective war-stopping short of victory. Once a propitious moment has passed, the next opportunity for interveners may not come until the conflict has run its course. Parajon’s chapter on the Falklands War shows how a propitious moment can pass, not to be regained, while Caroline Gross’s chapter on Mozambique tells a happier tale of a moment recognized and successfully seized. Third, war-stopping usually must precede peacemaking: it is nearly impossible to decrease the parties’ expectation of war when violence continues to rage. In the context of an insurgency, however, the operations may need to occur simultaneously. Current parlance terms this idea “draining the swamp”—that is, removing the discontents that inspire and fuel the insurgency. When dealing with an insurgent group, concessions, such as increased access to political processes and bodies, that would not be afforded to a state belligerent until after a stop in a war may be effective in turning the tide of opinion among those politically relevant civilians who support the insurgency. Peacemaking efforts can do double duty by serving not just their usual peacemaking functions but also contributing to war-stopping by weakening the insurgent party. The two chapters on insurgencies in Southeast Asia by Colby Barrett and Jonathan Ross-Harrington show that the dilemma regarding the sequence or simultaneity of war-stopping and peacemaking techniques has remained constant across the decades separating insurgencies in Malaya and Thailand. Finally, despite the laudable efforts of international parties to stop a war as soon as possible, some wars can only be stopped permanently when one party wins or when both parties have reached such a state of exhaustion as to burn out the conflict. In such a conflict, a cease-fire would serve only to allow the parties to regroup and rearm, and thus could have the counterproductive effect of prolonging a conflict and increasing the suffering it causes. The challenge for the international community is to recognize when this is the case, yet not to allow this potential situation to become an excuse for remaining inactive in wars that could have been stopped. The chapters on Rwanda and the Malayan Emergency provide examples of conflicts that ended with the victory of one party. Dannenbaum’s chapter on Rwanda is particularly useful, but also challenging to the dominant international human rights paradigm, in its identification of early internationally mediated negotiations as a factor that actually contributed to the Rwandan genocide. Several of the following case studies suggest indicia for determining whether a war is stoppable by means short of victory or exhaustion, but we have not attempted to develop a comprehensive methodology for making this assessment. Although the

Introduction

xix

possibility of an unstoppable war may seem pessimistic, the international community still has an important role to play in the peacemaking phase, even for a conflict that it could not stop. To engage effectively in peacemaking will require the international community’s sustained attention; peacemaking is not a quick process. As has been demonstrated all too often, the international community’s attention often flags even in its attempts at war-stopping. A stopped war without peace will not remain stopped for long, and so the international community must adjust its expectations to appreciate that stopping a war for an instant is neither peace, nor even a self-sustaining halt. When it comes to stopping wars, the entities most likely to have the credibility and the leverage to force the parties to cease their violent actions are states or international institutions, such as the North Atlantic Treaty Organization (NATO) and the United Nations. But the international community is not just states and supranational organizations, and substate and nonstate international actors, both groups and individuals, may play helpful or even essential roles in peacemaking. Gross’s chapter on Mozambique highlights the crucial role played by the Catholic Community of Sant’Egidio in mediating between the warring groups and the helpful assistance rendered by an individual entrepreneur in providing transportation for the parties. In an era when “nonstate actors” are often associated with the threats they pose, it is important to bear in mind that other nonstate actors, like nongovernmental organizations (NGOs) and religious groups, can play a constructive role in facilitating negotiations and supporting the reconciliation necessary for the shift in expectations about the recurrence of violence. While the seminar was proceeding, one of the editors of this book was in an elevator in the United Nations where he could not help but overhear two women from West Africa chatting about a war then under way in one of the countries in the continent. Commenting on the Secretary-General’s efforts to stop the war, one said, “He doesn’t seem to understand that wars end when the men get tired of fighting each other.” We hope that the studies and conclusions in this book can, at least sometimes, prove her wrong. K.E. W.M.R.

Chapter 1 War-Stopping Techniques in the Falklands Christina Parajon

I. Introduction After simmering for over two centuries, a territorial dispute between Great Britain and Argentina degenerated into open hostilities. The 1982 war over the Falkland Islands is often cited as one of the great modern instances of failed mediation. Many studies treat the case as one of failed conflict prevention. A slightly different lens, however, focuses more critically on the mediation attempts in order to scrutinize their value as tools for compelling disputants to abandon their war aims. As a lesson to the war-stopping student, the Falklands conflict underscores one scholar’s observation that “[p]eace has universal appeal only as an abstraction; in the concrete case, commitment to peace is rarely unqualified.” Indeed, the Falklands case provides much fodder for war-stopping analysis. The mediation techniques employed to stop the Falklands War ran the gamut: first, mediation by a major superpower, the United States; second, mediation proffered by a Latin American nation, Peru; and third, intervention by an international organization, the United Nations. An appraisal of each of the three war-stopping measures suggests several things. First, war-stopping turns upon the credibility and interests of the war-stopper. Ancillary to this are considerations of the war-stopper’s timing and process. Second, the interests of the war-stopper and the disputants themselves may cause the parties’ bargaining positions to be or appear immovable. Third, conflicts have an inflection point after which the momentum of force overtakes the appeal of peace. Ultimately, British military victory stopped the Falklands War. The territorial dispute, however, remains unresolved. As a result, tension over the islands continues to this day, exacerbated by the rich natural resources and hydrocarbon potential in the region. The conflict thus remains in a protracted stopped-war phase. The goal of this case study is to consider the particular war-stopping methods taken in the Falklands War, to assess their relative efficacy, and to determine if they are exportable to other conflicts. To this end, the chapter first presents an overview of the war, unraveling the trajectory and background of the dispute since its inception. Building 

Inis L. Claude, Jr., UN Efforts at Settlement of the Falkland Islands Crisis, in The Falklands War: Lessons for Strategy, Diplomacy, and International Law 118, 121 (Alberto R. Coll & Anthony C. Arend eds., 1985).

K. Eichensehr and W.M. Reisman (eds.) Stopping Wars and Making Peace: Studies in International Intervention ©  2009 Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17855 7. pp. 1-41.



Christina Parajon

upon this contextual base, the following section recounts the major events of the war, showing how closely the military and diplomatic initiatives were interwoven, the former greatly shaping the latter. The third section details each war-stopping technique, with an emphasis on the parties’ negotiating positions and war aims. Finally, the case study concludes with an appraisal of these techniques and an assessment of whether the outcome of this war was inevitable, and it suggests an alternative warstopping strategy that might have succeeded. And so, while other scholars have suggested various aspects of the analysis and theories presented here, the adaptation of those contributions to the war-stopping project provides an interesting, and hopefully useful, angle from which to consider their utility in stopping other conflicts. II. History of the Conflict The Falkland Islands territory includes two large islands, East and West Falkland, as well as two hundred smaller islands about five hundred miles northeast of Cape Horn and three hundred miles east of the Argentine coast. There is some dispute over who first truly “discovered” the islands; an amalgam of British, Spanish, Portuguese, Dutch, and French explorers all claim to have been the first. Since 1690, Britain, France, and Spain have all exerted their claims to ownership, each establishing settlements with the hopes of holding fast to the territory. In the beginning of the nineteenth century, Argentina based its claim to the islands on two grounds: (1) inheritance from Spanish rule and (2) a 1771 Anglo-Spanish agreement that implied that the British did not seek sovereignty. Based on these asserted rights, Argentina settled the islands. In 1831, the Argentine-appointed governor of the islands, Louis Vernet, seized three American ships that had strayed into a protected fishing zone surrounding the islands. The incident provoked the United States to contest Vernet’s authority to declare any such maritime protection zone and, by proxy, challenged Argentina’s claim to the islands. Consequently, the United States sent the USS Lexington into Buenos Aires harbor to arrest Vernet. On the islands, the American response created considerable confusion, which Britain leveraged to its advantage to retake and restock with British settlers. This chain of events allowed Britain to reassert its claim to sovereignty, this time based upon adverse possession and effective occupation. Whether or not Britain unlawfully retook the islands, in contravention of legitimate Spanish and Argentine rights, the subsequent years of occupation effectively consolidated its title. And so “[s]tolen or not, the islands became British   



Jorge O. Laucirica, Lessons from Failure: The Falklands/Malvinas Conflict, 1 Seton Hall J. Dipl. & Int’l Rel. 79, 79 (2000). Don Lippincot & Gregory F. Treverton, Negotiations Concerning the Falklands/Malvinas Dispute 1 (Institute for the Study of Diplomacy, School of Foreign Service, Georgetown University 1988), http://www.guisd.org/. W. Michael Reisman, The Struggle for the Falklands, 93 Yale L.J. 287, 303 (1983). For a thorough analysis of the Falkland Islands question from discovery through the nineteenth century, see Julius Goebel, Jr., The Struggle for the Falkland Islands (1927). The foregoing brief historical synopsis draws upon Goebel’s work as well as that set forth in Reisman, supra. Reisman, supra note 4, at 303.

1  War-Stopping Techniques in the Falklands



according to the prevailing international law.” For the next 130 years, British settlers occupied the islands. Argentina broached the sovereignty issue again in the 1960s, taking advantage of the newly created United Nations to appeal its case to the international community. In response, the General Assembly entered UN Resolution 2065 in 1965, which instructed Argentina and the United Kingdom to “proceed without delay with negotiations [. . .] with a view to finding a peaceful solution to the problem.” This international entreaty “lent legitimacy to the Argentine claim,” as it implied that there was a legally cognizable dispute that demanded resolution. By this time, however, Britain had occupied the islands continuously for 130 years. Approximately 1,800 kelpers,10 all of British decent, inhabited the islands. Moreover, the kelpers wanted, in fact insisted, on remaining British.11 Although the United Nations may have acknowledged a plausible Argentine claim to the islands, Article 2(3) of its charter forbade the use of force to realize this claim.12 Thus, negotiations seemed to be Argentina’s only internationally endorsed recourse—for the time being, at least. The negotiations from 1966 to 1982 that preceded the war contextualize the subsequent war-stopping measures in several ways. First, they account for the Argentine perception that Britain ultimately would not use force, that is, the deployment of the British task force was a “bluff ” only to be “called” by adherence to a firm, unyielding position. This perception, as the forthcoming analysis reveals, shaped Argentina’s expectations in a way that made compromise appear unnecessary, as well as overly pusillanimous. Second, for the Argentines, the years of protracted but unproductive negotiations gave war a comparative advantage in the choice of dispute resolution mechanisms. Finally, Britain’s actions (and inaction) during these years signaled to the Argentines, or so they thought, that Britain would not militarily challenge the use of force to retake the islands. Two significant periods of negotiations preceded the 1982 conflict. The first round of negotiations, from 1966 to 1968, ended in an impasse due to British refusal to broach the sovereignty issue; and the second, from 1977 to 1980, deteriorated due to growing Argentine frustration with British procrastination. Economic and commercial issues drove the first round of negotiations. The Falklands problem was couched as one of trade relations rather than a sovereignty dispute. The British saw the dispute with Argentina as an obstacle on the path to Latin America’s markets.13 Reaching a solution with Buenos Aires was a means to an end of increased trade with the region.14 Accordingly, when negotiations opened in 1966, the British were pragmatic about the fate of the islands; they assumed that     10 11 12 13 14

Id. at 304. Max Hastings & Simon Jenkins, The Battle for the Falklands 15 (1983). Id. at 16. Lippincot & Treverton, supra note 3, at 2. “Kelpers” is the colloquial name for the Falkland Islanders. Lippincot & Treverton, supra note 3, at 2. Id. (citing UN Charter art. 2, para. 3). Hastings & Jenkins, supra note 7, at 16. Id.



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transfer of sovereignty was a natural development. Moreover, such an eventuality fit neatly with Britain’s policy of colonial divestiture. The expense and disutility of maintaining a colony 8,000 miles away further supported the rationale for looking to a long-term sovereignty transfer.15 By that time, Britain had grown weary of supporting the thin red line “and the last thing it wanted was a costly defence commitment to some remote imperial outpost.”16 In sum, during this initial phase of negotiations the British Foreign Office pursued its national interests over the islanders’ interests.17 With this outlook, early talks between Foreign Ministers Nicanor Costa Mendez and George Brown appeared promising. Unfortunately, however, Brown discounted the extent of islander opposition to transfer.18 When word reached the British government that “George Brown wants to sell the Falklands to Argentina,”19 a Falklands lobby, dubbed the Falkland Islands Emergency Committee, quickly coalesced in response.20 The lobby was comprised of members of Parliament, islanders, and officials of the Falkland Islands Company.21 Their efforts paid off, and in 1968, new British Foreign Secretary Michael Stewart categorically announced that the government would only concede sovereignty if the islanders desired such an outcome.22 Thus arose the “islanders’ wishes” policy that would become a major thorn in the side of future war-stopping efforts. This switch in policy position confused the Argentines. With whom precisely were they now expected to negotiate—the British or the islanders?23 When the Conservative government returned in 1970, the British adopted a new de facto methodology: avoidance and procrastination. The new man responsible for the Falklands, David Scott, later confessed that their “aim [. . .] was to get the Argentinians to set aside the issue of sovereignty while we discussed other, more practical matters.”24 Scott framed the British position with innuendo: he told the Argentines that “while Britain would not countenance the rape of the Falklands, it would actively encourage their seduction,” suggesting to the Argentines that if sovereignty were set aside for the time being, and matters allowed to take their course along a commercial route, eventually the transfer of sovereignty would be the natural consequence.25 15 16 17 18 19 20 21 22

Lippincot & Treverton, supra note 3, at 3. Paul Eddy & Magnus Linklater, The Falklands War 45 (1982). Lippincot & Treverton, supra note 3, at 2. Id. at 2-3. Eddy & Linklater, supra note 16, at 45. Id. at 46. Id. The Rt. Hon. The Lord Franks et al., Falkland Islands Review: Report of a Committee of Privy Counsellors 6 (1983) [hereinafter Franks]; Hastings & Jenkins, supra note 7, at 20. 23 Eddy & Linklater, supra note 16, at 47. 24 Id. at 48. 25 Scott commented to the Argentines about “his personal view that the islanders would be under an Argentine flag within twenty-five years.” Hastings & Jenkins, supra note 7, at 23.

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Accordingly, sovereignty was temporarily shelved, and the parties focused on points of mutual commercial interest. The result was a Communications Agreement, a deal sketched between the Foreign Office undersecretary for the Falklands, David Scott, and an official from the Argentine embassy, Juan Carlos Beltramino.26 At the time, the “hearts and minds policy” was skillful diplomacy on Scott’s part, and allowed him to gracefully deflect the issue of a timetable for discussing the real grist of the dilemma—sovereignty.27 The plan was largely aimed to increase islanders’ benefits, such as improved air services and regular mail delivery. Such a “hearts and minds” approach furthered policy goals for both sides. Britain, at this point, needed the Argentine courtship to succeed as much as Argentina did. Britain, as of yet, had not advanced dogmatic, principled reasons for opposing a sovereignty transfer, and smooth acceptance of the new course was a key step toward removing the pesky Falklands issue from the laundry list of foreign policy pains. The goal, Scott explained, was to prove to the islanders that Argentina was not the “bogeyman” they feared and that closer ties would be in their favor.28 When official talks resumed in 1977 with the second round of negotiations, sovereignty was clearly on the table, and Argentina had high expectations.29 The proper level of islander participation remained a hotly contested issue. The Argentines refused to allow the islanders as a third party in negotiations, while the British remained equally firm that they would not conclude a settlement that failed to respect the wishes of the islanders.30 In 1979, the Thatcher government, and the new minister of state, Nicholas Ridley, inherited the Falklands problem. After a “familiarization” tour of Latin America, Ridley realized the gravity of the situation. He reported that the tenor in the Falklands was almost unreal—“like an English village in war-time.”31 When he returned to London he successfully impressed upon the Defense Committee that an Argentine invasion was becoming a realistic possibility if real progress was not made. And fast.32 Argentina was exasperated. Yet the Conservative opposition restricted the British Foreign Office’s ability to offer Argentina new solutions that might have ameliorated the growing vexation.33 In July 1981, after fifteen years of stalemate, the Argentine foreign minister cautioned the British ambassador in Buenos Aires, “A 26 27 28 29

Id. at 17, 22-23. Id. at 23. Eddy & Linklater, supra note 16, at 48. In July 1976, the British Joint Intelligence Council concluded, “Argentina might have unduly high expectations of the current negotiations. If these were dashed, it could be expected to return to a more aggressive approach.” Franks, supra note 22, at 13. 30 Id. at 20. 31 Eddy & Linklater, supra note 16, at 52. 32 Franks, supra note 22, at 21. The annex of an October 12, 1979, memo from Carrington concluded that if there was no progress in sovereignty talks “there would be a high risk of [Argentina] resorting to more forceful measures including direct military action.” Id. 33 Lippincot & Treverton, supra note 3, at 7. Ridley proposed the idea of leaseback to the Commons, a plan that might have been acceptable to the islanders at the time. The proposal, however, caused an uproar in Commons. The Times reported, “Seldom can a



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resolute impetus must therefore be given to the negotiations. The next round of negotiations cannot be another mere exploratory exercise, but must mark the beginning of a decisive stage towards the definitive termination of the dispute.”34 However, the final prewar round of talks in February exposed the futility of talking. By this point, Argentina’s position had hardened to its final resting place: a guaranteed schedule for transfer of sovereignty.35 Considering that the British foreign policy strategy “amounted to little more than spinning things out, this demand was a blow.”36 Consequently, progress eluded the negotiators once again. Taking a turn for the worse, the February talks ended with the implication that negotiations would not resume and that Argentina would “no longer feel bound to pursue its national interests by peaceful means.”37 Britain then sent two perplexing signals in 1981.38 First, Britain withdrew the naval vessel HMS Endurance from the South Atlantic at the end of its 1981-1982 tour. Second, Britain’s Parliament passed a nationality bill that deprived third- and fourth-generation Falklands settlers of commonwealth citizenship. No analogous action was taken against Gibraltarians.39 In addition to the British come hither signals, the Americans seemed to be winking and nodding as well. The Reagan administration had been flirting with the Argentine government, soliciting allegiance in its “anti-Communist crusade” in Latin and Central America.40 At this point, both parties entertained distorted outlooks. British intelligence informed the Foreign Office that Argentina was unlikely to bite the bullet and use force before a formal breakdown of negotiations.41 More importantly perhaps, the Argentines believed it highly improbable that the British would respond militarily to an invasion. As one U.S. State Department expert commented, “The Argentines

34 35 36 37

38

39 40 41

minister have had such a drubbing from all sides of the house.” Eddy & Linklater, supra note 16, at 53. Franks, supra note 22, at 28. Eddy & Linklater, supra note 16, at 74. Id. Douglas Kinney, Anglo-Argentine Diplomacy and the Falklands Crisis, in The Falklands War, supra note 1, at 81, 87. Several days after the New York talks, on March 2, the Argentine Ministry of Foreign Affairs issued a unilateral communiqué stating, Argentina has negotiated with Great Britain over the solution of the sovereignty dispute over the Islands with patience, loyalty and good faith over 15 years, within the framework indicated by the relevant United Nations Resolutions. The new system constitutes an effective step for the early solution of the dispute. However, should this not occur, Argentina reserves to terminate the working of this mechanism and to choose freely the procedure which best accords with her interests. Franks, supra note 22, at 41. See generally Michael P. Socarras, The Argentine Invasion of the Falklands: International Norms of Signaling, in International Incidents: The Law that Counts in World Politics (W. Michael Reisman & Andrew R. Willard eds., 1988) (discussing signaling and the degree to which these signals informed Argentina’s decision to invade). Franks, supra note 22, at 33-35. Lippincot & Treverton, supra note 3, at 8. Franks, supra note 22, at 43-44.

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just could not believe that the British were going to send their fleet 16,000 miles [round trip] to recover land that was obviously more important to Argentina than it was to Britain, at least in the view of the Argentines.”42 These opinions foreshadowed one of the principal challenges to the future war-stopping enterprise: disbelief compounded by misperception. III. The War On March 19, 1982, an Argentine scrap metal merchant, Constantino Davidoff along with forty of his workers, landed on the British island of South Georgia. Their stated intention was to extract scrap metal from an old whaling station. Britain conditioned this endeavor on their seeking authorization upon arrival from the British survey base there. Instead of seeking permission, Davidoff and his crew hoisted the Argentine flag. The record conflicts as to whether this was an act of jest or pugnacity; regardless, it was the proverbial spark that ignited the war. Britain responded to the scrap metal incident by demanding removal of the Argentine crew, and it dispatched the HMS Endurance to sail from Port Stanley to South Georgia to enforce this demand. The Argentine junta later claimed that the British decision to forcibly remove the scrap metal workers prompted its decision to invade.43 Accordingly, on April 2, the junta invaded the islands with the expectation that minimal protest—let alone condemnation—would issue in response.44 Contrary to Argentine expectations, the international response to the invasion was unequivocal. The day after the invasion, the UN Security Council issued Resolution 502 calling for immediate withdrawal of Argentine troops from the islands. Specifically, “Determining that there exists a breach of the peace in the region of the Falkland Islands (Islas Malvinas),” the resolution demanded “an immediate cessation of hostilities” and “an immediate withdrawal of all Argentine forces from the Falkland Islands (Islas Malvinas).” 45 In similar contravention of Argentine expectations, the British responded decisively: under no circumstances would any British dependency be taken by an aggressive regime. Three days later, after an emergency Saturday session of Parliament, the Thatcher government deployed a naval task force “that was to number some hundred vessels.”46 Shortly thereafter, Britain declared a two-hundred mile total exclusion zone (TEZ) around the islands. Britain would fire on any ship that entered the TEZ. Relatively low levels of military conflict occurred during April, as the British task force made its way across the Atlantic. The lull between invasion and fullfledged military engagement created an interesting—arguably fortuitous—environ42 Lippincot & Treverton, supra note 3, at 10. 43 Eddy & Linklater, supra note 16, at 77. 44 See Claude, supra note 1, at 122-23 (explaining why Argentina might have justifiably—or at least reasonably—believed the United Nations would support its decision to take the islands). 45 S.C. Res. 502, UN Doc. S/RES/502 (Apr. 3, 1982). 46 Eddy & Linklater, supra note 16, at 102.



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ment in which the first two attempted war-stoppers could maneuver. The potential of this “twilight zone” was not lost on the United States. As the British task force steamed along, Secretary of State Alexander Haig shuttled between Buenos Aires and London trying to negotiate a solution. The military situation continued in this manageable hiatus-like phase through the end of April and into early May, save the British recapture of the South Georgia Islands on April 25. The U.S. official neutrality lasted only as long as the Haig mediation. The breakdown of Haig’s effort on April 30, brought with it full U.S. support for the United Kingdom. The next two significant military events were intermeshed and arguably dispositive of the second war-stopping effort. Argentina suffered a major naval loss on May 2 when the HMS Conqueror hit and destroyed the General Belgrano. The cruiser was sunk outside the war zone, while sailing away from the islands. The loss of the Belgrano devastated the Argentine navy. Ironically, the vessel sank on the same day that Peruvian President Fernando Belaunde Terry, the second attempted war-stopper, presented his first peace proposal. Two days later, Argentina delivered a quid pro quo and sunk the British destroyer HMS Sheffield. Mrs. Thatcher and the British war cabinet were shaken by the loss.47 But the fighting continued. Despite these violent engagements another hopeful warstopper still believed peace possible. That, at least, was UN Secretary-General Perez de Cuellar’s sanguine opinion as he began discussing “his set of ideas” for peace with the disputants around May 2.48 Both sides accepted his mediation effort in earnest on May 6.49 The optimism was tempered in the latter half of May as both sides ramped up their military sorties, and the conflict neared its most violent stage. On May 8, Thatcher dispatched the British fleet from Ascension Island, a British-owned island in the South Atlantic. Geographically, Ascension marked the halfway point between Britain and the Falklands. Politically, Ascension was the point of no return. Mrs. Thatcher knew that after the fleet left Ascension, it was full sails to the Falklands: it would have been “politically intolerable to call it back.”50 On May 14, in the midst of the Secretary-General’s efforts, Mrs. Thatcher publicly announced that peace might not be possible.51 Once the British fleet arrived in the Falklands, third-party war-stopping efforts fell upon deaf ears. The disputants’ attention focused exclusively on force. On May 21, the British successfully mounted an amphibious attack near Port San Carlos, allowing them to establish a “firm bridgehead” from which to conduct offensive operations.52 From this point on, the British victory was within reach; the war cabinet, not the Foreign Office, would finish the job. 47 According to one account, Thatcher told her staff “the one thing she dreaded was to hear of the loss of a ship.” Hastings & Jenkins, supra note 7, at 167. 48 Douglas Kinney, National Interest/National Honor: The Diplomacy of the Falklands Crisis 198 (1989). 49 Id. at 199. 50 Hastings & Jenkins, supra note 7, at 169. 51 BBC News, The Battle over the Falklands, Oct. 25, 1998, http://news.bbc.co.uk/2/hi/uk_ news/199850.stm. 52 Kinney, supra note 48, at 329.

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The last major offensive of the war occurred at Port Stanley on June 12. Argentina surrendered to the British at Port Stanley on June 14, effectively ending the conflict. Finally, on June 20, the British retook the South Sandwich Islands, requiring Argentina to surrender Southern Thule, which was the last island still occupied by Argentina.53 Altogether the war lasted seventy-four days, with approximately 256 British and 750 Argentine casualties.54 IV. War-Stopping Techniques Before examining the three discrete mediations that took place over the course of hostilities, it is useful to understand, in broad strokes, the elements that all three war-stoppers understood as necessary to stop the conflict. In the first instance, literally stopping the war—that is, freezing hostilities—required either a reversal of the British task force, a withdrawal of the Argentine forces, or preferably both. Yet neither party would blindly agree to drawdown barring preliminary answers regarding the interim administration as well as the forthcoming discussions over a longterm settlement. As such, with varying degrees of detail and complexity, all three mediation attempts dealt with three sticking points: (1) the provisions for mutual withdrawal, (2) the shape and structure of an interim administration, and (3) the controlling terms for talks over the long-term sovereignty solution.55 A. U.S. Shuttle Diplomacy After the invasion, it was relatively undisputed in U.S. national security circles that something had to be done. The United States had key strategic interests in a peaceful resolution of the conflict. According to Jim Rentschler, then the National Security Council’s (NSC) director of European Affairs, The idea that the Brits would seriously launch an invasion from eight thousand miles away seemed rather ludicrous and the stakes seemed so piddling, way down there in the windswept South Atlantic. But nevertheless, we were concerned: we had great hemispheric hopes resting on the Galtieri government. And we were loath to see that apple cart upset through a squabble with our closet ally. This argued for a—we weren’t even calling it a peace mission, I don’t think—sort of a mediatory effort, something along those lines.56

The comment reveals the way in which the U.S. team perceived its job, which in turn shaped its dealings with its Argentine interlocutors. For one, the United States was palpably interested in the outcome of the conflict. Secondly, the focus was on war53 See generally id. at 298-338; Janis A. Kreslins, Chronology 1982, 61 Foreign Aff. 714, 741 (1982); BBC News, supra note 51 (chronology of events). 54 BBC News, supra note 51; Encyclopedia Britannica, Falkland Islands War, http:// www.britannica.com/EBchecked/topic/200775/Falkland-Islands-War. 55 Kinney, supra note 48, at xvi. 56 Lippincot & Treverton, supra note 3, at 17.

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stopping, not necessarily a quest for lasting peace in the region, but merely doing enough to stymie violence and perpetuate some sort of nonviolent modus vivendi. Thus, even though the mediation was advertised officially as “even-handed,” this rather self-interested conceptualization of the Haig team’s mission colored its ability to negotiate from a genuinely neutral position. The team’s awareness of the fine line between the U.S. special relationship with Britain, on the one hand, and the fear that Argentina would gravitate toward the Soviet Union’s open arms, on the other, further complicated the team’s role of neutral mediator.57 As such, a disjuncture arose between the official characterization of the mediator and the practical prerogatives of his mission. Officially, Haig was a neutral intermediary. In practice, he had U.S. interests to attend to; those of Britain and Argentina were ancillary to these interests, with preferred status issuing to the former. Haig’s decision to actively manage, contribute to, and shape the proposals reflected this hierarchy of interests. He was no passive messenger. Accordingly, en route to London for the first round of the shuttle, Haig and the mediating team designed the contours of a solution. Three basic points would set the baseline of his forthcoming negotiations: mutual force withdrawal, an interim administration, and a target date for reaching a long-term settlement agreement.58 1. London Round One Haig arrived in London on April 8 to meet with Mrs. Thatcher and Foreign Secretary Francis Pym. The initial British position staked out three prerequisites for negotiations: (1) withdrawal of Argentine forces, (2) respect for the “wishes” of the islanders,59 and (3) a fully British interim administration.60 Thatcher’s message was clear: aggression will not pay. Not only did Haig face a negotiating posture of the most difficult breed—one premised on principled positions rather than malleable interests— but he also confronted a skeptical customer. Not surprisingly, the British found the U.S. decision to remain neutral unconscionable: “‘American treachery’ was already being whispered in Whitehall, and ‘even-handed’ negotiators on a matter of clear principle were viewed with suspicion.”61 In sum, Mrs. Thatcher’s initial position was quite firm: Britain would not negotiate with Argentina until Argentina withdrew its troops. Sovereignty was not off limits per se, but islander self-determination would 57 Id. at 12. 58 Eddy & Linklater, supra note 16, at 131. 59 “Wishes” of the islanders connotes a demand for self-determination, insofar as recognizing the “wishes” of islanders implies they have a deciding voice in the final solution. “Wishes” is later contrasted with the islanders’ “interests,” which was substituted in some subsequent proposals to imply that islanders would not have a per se veto in the long-term sovereignty decision. Rather, Britain would have discretion in determining whether or not the islanders’ best interests were accounted for in the settlement. Hence “interests” phraseology was generally considered a flexible British position and a concession to the Argentines, whereas “wishes” was precisely the opposite. 60 Roberto C. Laver, The Falklands/Malvinas Case: Breaking the Deadlock in the Anglo-Argentine Sovereignty Dispute 145 (2001). 61 Hastings & Jenkins, supra note 7, at 105.

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be paramount, if and when the topic arose. Finally, Britain would retain control over an interim administration.62 As one report points out, “With most of the press, many right-wing conservatives, and the Labor Party leadership initially clamoring for a forceful response to the ‘Argies,’ she was not politically well positioned—even if she had wanted—to dole out concessions at this emotional juncture.”63 With the British position clearly delineated, Haig wondered “could [he] bring enough back from Buenos Aires to satisfy Mrs. Thatcher?”64 2. Buenos Aires Round One Haig was keenly aware that the firmness of the British negotiating position was tied both to principle and to Mrs. Thatcher’s political constraints. Thus, Haig went to Buenos Aires more to persuade than to mediate. To his dismay, in his initial meeting with President Galtieri and Foreign Minister Costa Mendez, Haig found the Argentines equally resolute. Their stubbornness largely stemmed from misperception. In the first instance, they were convinced that Britain would never follow through with military force to retake the islands. The deployment of the task force, in their view, was all bluff and bluster. The intense mood of the citizenry compounded the junta’s desire to maintain bravado. Buenos Aires was alive with national fervor: “Vast demonstrations packed the Plaza de Mayo. [. . .] Headlines, placards and graffiti cried: ‘Death to Margaret’s Swine’ and ‘Goodbye Queen, Long Live Argentina.’”65 As one professor related, “We are drunken with patriotic feelings, we are standing proud, because we are witnesses and participants of a rescue promised to the blood of our forbearers. National joy is as wide as understandable.”66 The popular support for war thus made it easy for the junta to both buy (within its own insular circles) and sell (to more moderate factions of the leadership) the claim that the British task force was a farce. The junta, much like Mrs. Thatcher, was constrained not only by its own desires, but also by those of the public—each especially accountable for the most visible aspect of an agreement. For Thatcher, this aspect was self-determination, but for the junta, sovereignty was at the cynosure. Galtieri conveyed as much to Haig in Argentina’s initial position: “Argentina was prepared to negotiate about every issue but one: Argentine sovereignty over the islands.”67 The junta would entertain variations on the process of delivery, but the end result must equal sovereignty: “[It] might be negotiated, reasoned over, and even surrendered ceremonially and militarily if guaranteed politically following a decent interval; but regardless, Argentina 62 Lippincot & Treverton, supra note 3, at 19-20. 63 Id. at 19. 64 Alexander M. Haig, Jr., Caveat: Realism, Reagan, and Foreign Policy 274 (1984). 65 Hastings & Jenkins, supra note 7, at 108. 66 Jason McClure, The Falklands War: Causes and Lessons, 3 Strategic Insights (2004), http://www.ccc.nps.navy.mil/si/2004/nov/mcclureNOV04.asp#references. 67 Lippincot & Treverton, supra note 3, at 20.

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must have it.”68 Publicly, the junta declared that things would not return to the “status quo ante.”69 Even so, after several back and forth exchanges, Haig picked up on a possible opening. At this stage, the junta’s position was staked to a large degree on appearances. If Haig could cultivate the junta at the nexus of national honor and vanity, then a little creativity might give rise to a face-saving solution. Such a solution could be substantively superficial but enough to satisfy Argentina’s need for some symbolic alteration of its status vis-à-vis the islands. Galtieri’s conversations with Haig corroborated the latter’s conclusion that satisfaction of the junta’s aim turned upon saving face before the porteños: “The Argentinian government is willing to find an honorable solution that will save Mrs. Thatcher’s government. But we cannot sacrifice our honor. [. . .] You will understand that the Argentinian government has to look good, too.”70 From these impressions, Haig concluded that the best platform upon which to advance a proposal might be the interim administration issue.71 Argentine flexibility ebbed and flowed considerably during the first round of Buenos Aires talks. This vacillation and inconsistency gradually became a source of frustration to the Americans. By one o’clock in the morning on Easter Sunday “the two teams had decided that Argentina’s presence could be honorably preserved by the liberal use of flags by the Argentine representatives on the island.”72 As such, Haig left for the airport with the sense that the Argentines would consider ideas for a multilateral or international administration. Entertaining the assumption that he had procured something to take back to the British, he enjoyed a moment of respite, pleased that he had been moderately successful “in his efforts to dislodge Galtieri from his posturing and his apparently rigid positions.”73 This relief was short lived. Before boarding his plane, Costa Mendez surprised Haig with a last-minute reversal. In an infamous note, the foreign minister explained that Argentina had returned to its original demand for either full Argentine control in the interim or a British promise that sovereignty would be transferred by December 31.74 From Haig’s perspective, it was “a formula for war.”75 Overall, after the first round of the shuttle, both sides appeared to prefer diplomacy only marginally to force. As one of Haig’s aides commented, “like two schoolboys itching for a fight [. . .] they’ll not be satisfied until there’s some blood on the floor.”76 Even so, Haig was determined to push on with the talks with another round of shuttling.

68 69 70 71 72 73 74 75 76

Kinney, supra note 48, at 114. Id. at 115. Haig, supra note 64, at 277. Hastings & Jenkins, supra note 7, at 108. Kinney, supra note 48, at 116. Lippincot & Treverton, supra note 3, at 22. Haig, supra note 64, at 283. Id. at 283. Hastings & Jenkins, supra note 7, at 108.

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3. London Round Two On April 12, Haig returned to London to begin the second round of his shuttle. For the most part, the British negotiating position remained largely unchanged: “implementation of Resolution 502; self-determination; and no Argentine access or pressure (i.e., no fixed deadline) during negotiations.”77 Haig, however, was still focused on the interim administration dimension; along which, it seemed, Thatcher was willing to offer some concessions. She no longer demanded strict British control in the interim, but rather only that the administration be “recognizably British.”78 In addition, in an effort to maintain the image that Britain was “negotiating in good faith,” Thatcher seemed willing to consider the islanders’ “interests” along with their “wishes.”79 With Thatcher’s budge, combined with what he had understood from his last visit to Buenos Aires, it seemed to Haig that he could continue building on the interim administration issue. However, his impression that he had found a point of mutual flexibility proved illusory on both ends. He had left Buenos Aires with an understanding, reached between himself and Costa Mendez, that in his absence the Argentines would focus on their final terms for the interim administration.80 Haig also believed that Galtieri was amenable to symbolic solutions and that his primary focus attached to the “importance of flying the [Argentine] flag.”81 Contrary to Haig’s understanding, while in London he learned from Costa Mendez that his government had returned to its initial demand of guaranteed sovereignty.82 This was not the first or the last instance of “Costa Mendes’s inability to deliver his government” or the Argentines’ tendency to backpedal on previous offers.83 4. Buenos Aires Round Two When Haig arrived back in Buenos Aires on April 16, he was prepared to take a tougher stance. As the Americans became more assertive, their growing frustration indicated the speciousness of their purported neutral position. Notably, “[t]he second week of the shuttle thus found Haig back in Argentina and ready to wave the big stick.”84 Haig was no longer coy about the gravity of the situation, and he impressed upon the junta the consequences of continued aggression against the British. In line with the quasi-ultimatum, and the increasingly agent-like behavior, Haig opened the discussion by presenting the Argentines with a preapproved British text. 77 Kinney, supra note 48, at 119. 78 Hastings & Jenkins, supra note 7, at 109. 79 Lippincot & Treverton, supra note 3, at 24 (“[W]hat was in their best interests could be determined by the British government, instead of solely by the islanders themselves.”). 80 Hastings & Jenkins, supra note 7, at 109. 81 Haig, supra note 64, at 283. 82 Hastings & Jenkins, supra note 7, at 109. 83 Id. 84 Id. at 110.

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Its essential elements included Argentine withdrawal, a halt by the British fleet, a UK-U.S.-Argentine interim administration, an end to sanctions, and guaranteed completion of negotiations by the year’s end.85 Yet, the target in Buenos Aires had shifted. Long gone was any apparent flexibility over an interim administration that Haig had detected during round one. The junta’s new position shifted to substantial control of the interim administration.86 Yet, qualitatively, this position was no different than an explicit demand for guaranteed sovereignty. Control in the interim, coupled with an aggressive immigration allowance, was a slightly more circumspect way to procure guaranteed sovereignty. The immigration aspects were integral to the Argentine design; in Haig’s estimation, they amounted to “provisions for saturating the Falklands with Argentinians and for pushing out the existing population.”87 Haig was visibly furious at this reversal and told Costa Mendez that he was sure the “British will shoot” when they hear of such a plan.88 Clearly, this was not the response the Argentines were expecting. The Argentine foreign minister was taken aback by the severity of Haig’s reaction, stating that “[he was] truly surprised [. . .] that the British [would] go to war for such a problem as these few rocky islands.”89 More than two weeks into the war, the Argentine government still refused to believe that the British task force was anything more than a scare tactic. Throughout the shuttle, and especially during round two, Haig did his utmost to inculcate the potential costs of continued war. In addition to the British task force, Haig began to leverage the threat of an adversarial United States. Perhaps, Haig reasoned, if they saw the British military as a fantasy, the specter of American force might prove more persuasive. To this end, Haig flatly told Anaya, the head of the navy, “Washington would not tolerate the fall of Thatcher’s government.”90 Still incredulous, Anaya physically leaned across the table and called Haig a liar.91 All of this suggested to Galtieri that the Haig team had clearly “ranged itself with [their] opponents.”92 Also, the junta may have still overestimated its own military capacity at this point; after all, they reasoned, “Did they not possess air superiority, submarines, Exocet, 8,000 men dug in round Port Stanley? Why on earth negotiate sovereignty?”93 Hence, low projections for the actual cost of war, in tandem with the growing antipathy toward Haig’s mediation, rendered war a more lucrative course of action than a U.S.-led mediation. Indefatigable, Haig battled on with the Argentines over the course of the next several days. Finally, on April 19, Haig conveyed to London what he understood from Costa Mendez to be the modified Argentine “‘bottom line’: a shared Anglo85 86 87 88 89 90 91 92 93

Haig, supra note 64, at 286. Kinney, supra note 48, at 124. Haig, supra note 64, at 286. Id. Id. at 287. Hastings & Jenkins, supra note 7, at 111. Id. Eddy & Linklater, supra note 16, at 135. Hastings & Jenkins, supra note 7, at 112.

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Argentine administration under US supervision; a shared islands council; sovereignty to be resolved at the U.N. by the end of the year.” 94 The last point was again a variant on the sovereignty guarantee, given that Argentina believed the United Nations would voice its support for the Argentine position on sovereignty. This new position, designated the “Costa Mendes Plan,” was unacceptable to the British.95 As Thatcher explained, “among the many problems the Argentine proposals present is that they fail to provide that the Falkland Islanders should be able to determine their own destiny.”96 The Argentine outline did not clear the British bar for self-determination. In sum, by the end of the second round of the Haig shuttle, the parties’ negotiating positions and war aims were qualitatively unchanged. Argentina was unlikely to accept an agreement that did not expressly or impliedly provide for guaranteed Argentine sovereignty. This, however, was the one thing the British would never relinquish, barring an explicit desire of the islanders to live under Argentine rule. Problematically, the islanders most emphatically did not want to be Argentine. The British had ended the business of subjugation decades before and would surely not contravene democratic principles and force the islanders to trade in their relationship with Britain for life under a military dictatorship. And so, Haig rounded out his shuttle with nothing to show for it but two diametrically opposed positions. The British task force continued steaming toward the islands to stage its military eviction. The Argentines, equally determined, remained dug in on the islands, prepared to use force to hold their ground. Arriving back in Washington after the transatlantic shuttling, Haig attempted one last time to harmonize Britain’s principles with the terms of Argentina’s proposals. The new plan, called Haig II, or the American proposal,97 contained a mixed bag of the various points that had been acceptable to one or the other side at various points during the shuttle.98 Although the final Washington-based attempt ultimately failed to stop the war, it did fare well strategically for the British because Argentina was put in the position of rejecting it first. Throughout the Haig shuttle, Thatcher played a fine diplomatic game, adroitly maneuvering. As one member of the Conservative Party put it, the concern was that “they, not we, are generally seen as the obdurate lot, the bunch that finally made war inevitable.”99 On April 30, Haig’s mission officially closed, and the United States declared its full support for Britain.

94 Id. 95 Id. 96 Kim Hunter Tunnicliff, The United Nations and the Mediation of International Conflict 184 (Aug. 1984) (unpublished Ph.D. dissertation, University of Iowa) (on file with the University of Iowa) (quoting William Borders, Mrs. Thatcher Faults Peace Plan; Pym To Come to U.S., N.Y Times, Apr. 21, 1982, at A14). 97 Laver, supra note 60, at 150. 98 Kinney, supra note 37, at 97. 99 Tunnicliff, supra note 96, at 185 (quoting R.W. Apple Jr., Britain Draws Up 3-Step Peace Plan on the Falklands, N.Y. Times, Apr. 22, 1982, at A1).

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Christina Parajon B. The Peruvian Mediation

The second war-stopping technique was categorically quite similar to the first: thirdparty mediation. Qualitatively, however, the second variant of mediation differed from that of Haig’s in two respects: (1) it conscripted the president of a Latin American country, Fernando Belaunde Terry of Peru; and (2) the mediator worked from home, rather than out of a suitcase. In early May, military losses on both sides had been limited, and the British task force had yet to arrive. A political solution, therefore, was still acceptable for both parties. Admittedly, the Americans had failed to stop the war in its earliest stage; but perhaps the problem was not the proposals, but rather the mediator. Some (including Haig) felt that a similar proposal might seem more acceptable to the Argentines if put forward by a Latin American country.100 The concept of a Latin mediator, especially one to whose “attitudes and opinions” Argentina “attached great importance,”101 held appeal. However, the opportunity to stop war was yet again lost. Haig’s none-too-discreet involvement, combined with substantial military devastation, ensured that the Belaunde mediation would be short lived. Although Haig had officially resigned his war-stopping post, his fingerprints were all over the Peruvian plan. Behind the scenes, Haig collaborated with Belaunde to devise a seven-point plan. The hope was that Haig would offer the Anglo perspective and Belaunde the Latin American one, putting forward “points from the perspective of the country with which each shared a common language and culture.”102 Unsurprisingly, the provisions of the first Belaunde plan were remarkably similar to the ideas recently set forth in Haig II. The highlights included a third-party interim administration, the recognition of the “viewpoints and interests” of the islanders, a supervisory contact group consisting of the United States, Brazil, Peru, and West Germany, and finally a deadline of April 30, 1983, for reaching a long-term solution.103 As hoped, the plan gained traction with the junta when initially proposed on May 2. A senior British foreign officer who happened to be in the room at the time reported Costa Mendez’s reaction: “We have an agreement. We can accept this.”104 However, the major military humiliation occasioned by the sinking of the Belgrano just two hours later derailed the effort.105 Although the loss of the Belgrano probably broke the junta’s rigid belief that the task force was a hoax, the loss did not prompt an accompanying realization that war might be more costly than originally anticipated. Notwithstanding the loss of the Belgrano, and the revised expectation that the task force would eventually wield its full power, compromise after military humiliation was an anathema. Argentina would, as Galtieri informed Belaunde, “rather die on our feet than live on 100 Kinney, supra note 37, at 102. 101 Lawrence Freedman & Virginia Gamba-Stonehouse, Signals of War: The Falklands Conflict of 1982, at 273 (1991). 102 Kinney, supra note 48, at 152. 103 Id. at 152-53. 104 Eddy & Linklater, supra note 16, at 170 (emphasis omitted). 105 Id.

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our knees.”106 Arguably, the junta was not calculating the potential costs of war in terms of lives, ships, aircraft, and supplies, but rather in terms of national honor.107 As a result, the loss of Argentina’s primary naval cruiser did not make peace relatively more attractive, as one might expect. Instead, it was withdrawal—the pacific option—that became the more costly of the two, as it would have foreclosed the opportunity to vindicate Argentine honor. Such a quid pro quo mentality created a situation where after military loss the only way forward, to even the score, was through exertion of reciprocal force—a restoration of power parity through an equal if not greater military demonstration. In contrast, the British calculation of war costs was more pragmatic and was shaped to a greater extent by loss of life and material aims. The Belgrano incident reinforced the British expectation that its interests might advance more quickly through force than through mediation. Accordingly, the British cursorily dismissed Haig’s plea for a temporary cease-fire immediately after the Belgrano. Sir Nicolas Henderson, the British ambassador in Washington, informed him that “London would not agree to an armistice just because Argentina was now doing badly.”108 Yet when an Argentine Exocet destroyed the HMS Sheffield two days later,109 the British calculation of war costs increased, and peace momentarily seemed more desirable. Unlike the junta, the devastating loss positively altered Britain’s attitude toward the Peruvian mediation. In marked contrast to its April stance toward mediation, now Britain’s “politicians were looking for a way out.”110 The British cabinet felt that “Pym’s arguments, which before had been tedious obstacles on the path to glory, now seemed to many a ray of hope. All talk was now of Peru.”111 Unfortunately the newfound British penchant to talk was wasted on the junta. Although Belaunde attempted a second bout of mediation on May 5, the junta had lost interest in the Peruvian’s peace proposals,112 which from Argentina’s perspective were commensurate with another Haig machination. In the end, what differentiated the disputants’ reactions to the Haig and the Belaunde mediations was not just the mediators’ varying degrees of impartiality, as implicitly derived from their nationality. Equal, and perhaps more important, were the military events that transpired in the midst of the mediation and shifted the balance of power. As a result, these events—more so than the concurrent peace proposals—altered the leaders’ preferences and expectations toward violence.

106 Freedman & Gamba-Stonehouse, supra note 101, at 286. 107 See generally Kinney, supra note 48 (framing his analysis of the mediation attempts in the Falklands in terms of national interest and national honor, principles summoned throughout much of the present study). 108 Id. at 287. 109 Eddy & Linklater, supra note 16, at 164. 110 Hastings & Jenkins, supra note 7, at 167. 111 Id. 112 “The diplomatic forum had now switched. At lunchtime on 5 May, Argentina had formally accepted UN mediation.” Freedman & Gamba-Stonehouse, supra note 101, at 291.

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Christina Parajon C. The Secretary-General’s Good Offices

The United Nations pursued two war-stopping courses: (1) collective security and (2) mediation.113 With respect to the former, Security Council Resolution 502, issued immediately after the Argentine invasion, signaled what could have been a collective enforcement of Argentine withdrawal.114 Yet despite Argentina’s disregard for UN chastisement, the resolution was never enforced; the Perez de Cuellar mediation factored more prominently. Throughout the Haig and Belaunde mediations, SecretaryGeneral Perez de Cuellar was preparing for his potential war-stopping role and had “kept in touch informally.”115 True to his prediction, as the Argentines grew exasperated with the Belaunde effort, they successfully procured the UN replacement; and on May 6, both parties agreed to Perez de Cuellar’s mediation attempt.116 At this point, a large-scale military confrontation—that is, the arrival and engagement with the British task force—was a not so distant reality. Also, early May saw an increase in air and sea operations. As one UN official couched the matter, “The question at the moment [was]: Have both sides seen enough blood drawn to make them have second thoughts?”117 Perez de Cuellar’s methodology and style differed from those of his predecessors. Most notably, the ethos of the mediation was much more professional, and direct contact with each side reduced the potential for misunderstanding.118 In New York, the Secretary-General met with British Ambassador Sir Anthony Parsons and Argentine Deputy Foreign Minister Enrique Ros once or twice a day.119 The aim of these individual meetings was for the Secretary-General to assess the positions of both sides. Also, in contrast to previous mediators, Perez de Cuellar did not present papers or positions that he himself had prepared; rather, he summarized the key points of both sides and made suggestions he thought might be mutually acceptable.120 Indeed, the Secretary-General’s process was quite polite. Problematically however, the increasing heat of the violence required a war-stopping initiative with more teeth and greater urgency. The conflict was on the verge of its most violent phase: “Mrs. Thatcher was adamant that she could not have a leisurely UN peace initiative meandering back and forth across the Atlantic just when the task force was going in guns blazing.”121

113 See Claude, supra note 1, at 118-21 (discussing this dual role and critiquing the efficacy of its application in the Falklands conflict context). 114 Id. at 119-20; see also text accompanying notes 212-214 (drawing on Claude’s scholarly criticism of the way in which the United Nations conflated its collective security and mediatory roles). 115 Freedman & Gamba-Stonehouse, supra note 101, at 293. 116 Kinney, supra note 48, at 199. 117 Eddy & Linklater, supra note 16, at 168. 118 Freedman & Gamba-Stonehouse, supra note 101, at 295. 119 Kinney, supra note 48, at 200. 120 Tunnicliff, supra note 96, at 210. 121 Hastings & Jenkins, supra note 7, at 172.

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As the mediation progressed, Thatcher grew anxious that Perez de Cuellar would devise some truly “intermediate point,” that the British would be hard-pressed to reject without appearing the villain who stood in the path of peace.122 To preempt this possibility, the British presented the Secretary-General with their bottom line— a “final peace offer”—below which there would be no discussion.123 On paper, their position was reasonable. In fact, it outlined a proposal that would have satisfied many of the previous Argentine demands, namely, participation in the interim administration and what amounted to the “inevitability of full Argentine sovereignty.”124 That is, the plan would have effectively resulted in “a creeping loss of sovereignty.”125 Such an offer in April might have satisfied the junta. The junta, however, was no longer negotiating its April positions—those that appeared malleable within the parameters of a face-saving solution. The junta in April might have been satisfied with a “creeping” transfer of sovereignty and an interim administration that was not exclusively British. The May junta, however, had become “trapped by its own propaganda and decided to retreat to a hard line.”126 Accordingly, the junta rejected the British proposal, finding unacceptable, inter alia, the lack of Argentine control in the interim administration and the allusion to islander self-determination.127 In a last ditch effort, on May 26 the Security Council issued Resolution 505, which retroactively acknowledged Perez de Cuellar’s initiative and requested that the Secretary-General try once more to broker a solution. Perez de Cuellar was less than thrilled, noting, “It seems that they are giving me a very difficult mission. [. . .] What can I do in seven days?”128 Perez de Cuellar had not been unduly pessimistic. After a week of further exchanges, the parties’ positions remained “[incompatible] with a cease-fire.”129 And so, Argentina chose to roll the dice and take its chances with the British task force. Perez de Cuellar was forced to admit defeat. Lamenting the failure of all three war-stopping attempts, he grimly commented, “It was the sort of problem which would take ten minutes to solve if both sides were willing.”130 A major superpower, a Latin American nation, and an international organization all failed to stop the war via mediation. British military victory was the only successful technique for stopping the war. In Argentina, the junta had inextricably linked national honor with guaranteed sovereignty over the islands. For Britain, great principles of democracy—self-determination and resistance to aggression—hinged 122 123 124 125 126 127

Freedman & Gamba-Stonehouse, supra note 101, at 302. Id. Kinney, supra note 48, at 210. Hastings & Jenkins, supra note 7, at 173. Id. Laver, supra note 60, at 158-59. The allusion refers to the inclusion of Article 73 of the UN Charter in long-term negotiations, “which contains the general principle that the political aspirations of the local population should be taken into account for the development of political institutions.” Id. at 157. 128 Kinney, supra note 48, at 214. 129 Id. 130 Hastings & Jenkins, supra note 7, at 325.

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on the outcome of the dispute. None of the war-stoppers could reconcile these positions or convince the parties that the cost of defending the positions was simply too great. Thus, the conflict proceeded to its military conclusion. V. Appraisal of War-Stopping Measures Given the adamancy of the disputants’ positions and war aims, it is not clear that any potential war-stopper could have accomplished what Haig, Belaunde, or Perez de Cuellar failed to do. Some disputants are obdurate, and their wars are only stopped by a decisive military victory. Even so, analyzing the outcome of this conflict provides insight into when mediation techniques are viable war-stopping measures and how they might best be employed. One hindrance to war-stopping stemmed not from the mediators, but from the parties: the disputants’ domestic interests and constraints stood as a structural impediment to the war-stoppers’ techniques. The war-stoppers introduced other impediments, including ones related to their identity (their interests, credibility, and power). They also hindered their own efforts by poorly timing their mediations, employing ineffective procedural techniques, and sending mixed messages. A. Disputants’ Domestic Constraints To the extent that war is advantageous for a leader’s domestic standing, the internal situation in a disputant’s country may heighten the war-stopping challenge because the disputant might use war as tool for political self-preservation. During the Falklands crisis, both regimes expected that war would have some diversionary value, and both deployed ideological arguments to maximize this effect—to mobilize popular support and generate a “rally-round-the-flag” effect.131 To act effectively, a war-stopper must be sufficiently sensitive to the disputants’ interests and account for situations in which a disputant, acting in pursuit of these interests, has backed itself into a war corner, thereby constraining the latitude for compromise. Diversionary war theory has been deployed as an explanation for war and a regime’s propensity to engage in “foreign policy adventurism.”132 If, for example, “a regime’s legitimacy and popularity are low [. . .] diversionary wars can be an effective means to attain popular support.”133 Although the theory developed mainly around 131 See, e.g., John E. Mueller, War, Presidents, and Public Opinion 53 (1973) (discussing, generally throughout the book, the effect as it relates to American popular support for the presidency during times of war). 132 See T. Clifton Morgan & Kenneth N. Bickers, Domestic Discontent and the External Use of Force, 36 J. Conflict Resol. 25, 25-27 (1992) (summarizing the basic diversionary war hypothesis, its proponents, and relevant scholarly literature and studies devoted to the topic); see also Jack S. Levy & Lily I. Vakili, Diversionary Action by Authoritarian Regimes: Argentina in the Falklands/Malvinas Case, in The Internationalization of Communal Strife 118 (Manus I. Midlarsky ed., 1993) (analyzing the Falklands crisis through a diversionary war hypothesis lens). 133 T.V. Paul, Asymmetric Conflicts: War Initiation by Weaker Powers 33 (1994).

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factors that prompt leaders to opt for war in the first instance, it also extends to the war-stopping analysis: the same factors that push a government to start a diversionary war create incentives to resist a compromise that might end the diversion. As Jean Bodin sagely remarked, wars “keep the subjects in amity one with another” as they allow citizens to unite behind “a common cause,” and “[t]hese considerations serve to show how wrong are those who say that the sole end of war is peace.”134 Given the degree to which both the junta and Mrs. Thatcher had diversionary interests in the war, peace may not have been their primary goal, thereby creating a structural impediment to the war-stopping effort. At the time of the invasion, the junta’s political standing was becoming increasingly precarious.135 By 1982, five years of human rights abuses, inflicted by the junta’s “dirty war” against alleged leftist subversion, had damaged the regime’s legitimacy and popularity. Members of the junta were anxious about the reckoning to come for the desaparecidos, an eventuality that seemed increasingly likely given the growing popular discontent.136 The junta reasoned that a successful recuperation of the Falklands could soften the civic anger: “From being the Army of the ‘dirty war,’ they would turn into patriots bent on recovering for the nation a portion of territory under imperial occupation.”137 Deepening economic crisis also increased domestic agitation. In addition to the massive capital outflows, declining domestic investment, and uncontrollable inflation,138 Galtieri’s recently implemented austerity measures inflicted “further economic misery for the Argentine people.”139 Overall, the domestic situation was so bleak that the Argentine daily La Prensa said in February 1982, “The only thing that can save this government is war.”140 Superimposed on this dire state of affairs were the Falklands: “the one issue that united all shades of opinion in Argentina.”141 Considered against the domestic backdrop, the junta’s need to “look good” was perhaps the most critical element to stopping the war. This was especially true in April, prior to the loss of the Belgrano, when the potential for devising a facesaving solution was at its peak. In early 1982, Mrs. Thatcher also needed an outward distraction. It was unclear how much longer the populace could countenance the strong doses of the Thatcherite economic program. When Conservatives took over Whitehall in 1979, 134 Jean Bodin, Six Books of the Commonwealth 168-69 (M.J. Tooley trans., 1955). 135 The theory that the junta instigated the war in order to divert attention and find a “scapegoat” is a commonly advanced theory. See John Arquilla & María Moyano Rasmussen, The Origins of the South Atlantic War, 33 J. Latin Am. Stud. 739, 740, 746 (2001). 136 See generally Alejandro Dabat & Luis Lorenzano, Argentina: The Malvinas and the End of Military Rule 73-77 (Ralph Johnstone trans., 1983) (describing the social crisis and internal political significance of the Falklands conflict in Argentina). 137 Id. at 76. 138 Paul, supra note 133, at 160. 139 Id. 140 John Simpson & Jana Bennett, The Disappeared: Voices from a Secret War 305 (1985). 141 Iain Guest, Behind the Disappearances: Argentina’s Dirty War Against Human Rights and the United Nations 338 (1990).

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Thatcher ushered in sweeping economic reforms that eschewed socialism and the welfare state in favor of capitalism and monetarism.142 This economic program, which hinged on “gripping inflation,” was strong medicine indeed, especially in the midst of high unemployment and deepening recession.143 In the months preceding the invasion, the popularity of the Conservatives hit the lowest level ever recorded by the British government, and Thatcher became “briefly the most unpopular prime minister since the war.”144 In line with the notion that wars can provide a popularity boost, Argentina’s invasion of the Falklands began “to look less a problem for the Conservative Government than a golden opportunity to repackage its ideological project into a more acceptable form.”145 Again, this point comports with Bodin’s assertion: for the British government, peace was not the only end of war. One possible symptom of conflicts that serve diversionary purposes is the tendency for the leadership to publicly package the war in ideological wrappings rather than those grounded in realpolitik. This becomes more necessary for the leader who uses force to distract domestically, “since the political purpose of war has to stimulate the masses to effort and sacrifice, this purpose must be so defined as to inspire a positive popular response.”146 Both the junta and the Thatcher government fell prey to this tendency and employed principled rhetoric in order to rally popular support. This strategy presented additional obstacles for the war-stopping effort. By appealing to the public’s notions of national dignity, honor, and justice, the disputants ratcheted up the value of total victory, thereby diminishing their ability to compromise in a way that would be acceptable at home. For Galtieri and the junta, public discourse was a rhetorical apparatus employed to sustain public effervescence in furtherance of their own political self-interest. On the day of the invasion, Galtieri addressed the throngs of supporters cheering the junta outside the Casa Rosada: “I believe in you all. We all need to believe in ourselves and we will rise, together united, very high, our flag as an emblem of liberty, so that it may float sovereign and definitively in our Grand Patria.”147 His public address the day after the invasion presaged the junta’s behavior toward the future war-stoppers: “We will accept a dialogue after this action of force, but only with the conviction that our dignity or national pride will be maintained at all costs and at whatever price.”148 142 Andrew Gamble, The Free Economy and the Strong State: The Politics of Thatcherism 107-20 (2d ed. 1994). For an accounting of British politics and economy in 1980-1981, see Margaret Thatcher, The Downing Street Years 122-55 (1993). 143 Andrew Marr, A History of Modern Britain 386, 387-88 (2007). 144 Gamble, supra note 142, at 118. 145 David Monaghan, The Falklands War: Myth and Countermyth 7 (1998). 146 Arno J. Mayer, Internal Causes and Purposes of War in Europe, 1870-1956: A Research Assignment, 41 J. Mod. Hist. 291, 292 (1969) (citing Carl von Clausewitz). 147 Expuso Galtieri los fundamentos de la determinación asumido: El gobeirno no pudo tener otra respuesta que la que dio en el terreno de los hechos [Galtieri Exposed the Foundations of the Assumed Determination: The Government Could Not Have Another Response, Given the Facts], La Prensa (Arg.), Apr. 3, 1982, at 1, 8 (author’s translation). 148 “Aceptaremos el diálogo después de esta acción de fuerza, pero con el convencimiento que la dignidad o el orgullo nacional han de ser mantenidos a toda costa y a cualquier

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Juxtaposed with his public addresses, one can better understand why during the Haig mediation “Galtieri would agree [to] some detail, go out onto the Casa Rosada balcony, breathe in the plaudits of the crowd and find himself promptly repudiating it.”149 Insufficiently attuned to Galtieri’s domestic constraints, the Haig team inaptly overattributed the junta’s backpedaling to indecision and bad faith.150 Instead, the view from the Plaza de Mayo suggests that the junta’s inability to commit to compromise stemmed from the tension between Galtieri’s efforts to rally public opinion on the one hand, and any desire to avert war on the other. Mrs. Thatcher and the Conservative Party public dialogue were similarly principled.151 In various public addresses and press statements during the war, Thatcher contrasted “a military junta and a democratic government of free people”152 and “‘the rule of law’ against ‘the rule of force’; ‘peace—with freedom, with justice, with democracy’ against ‘armed aggression’ and illegal seizure.”153 Similarly, Winston Churchill framed the matter as one between “Argentinian ‘crooks’” and “honest, decent English gentlemen.”154 Thatcher and her supporters within the government and media thus linked defending the Falklands to principles at the core of British sensibilities.155 Also, like the junta, her attitude during the mediations reflected her need to remain consistent with the principled rhetoric she presented to the public. As she told Haig in the third week of his mediation, she was weary of the back and forth. After all, “it was essentially an issue of dictatorship versus democracy,” and these principles could not be dickered over.156 Notwithstanding the differing degrees to which the two regimes’ discourse was rhetorical versus sincerely ideological, its effect on the war-stopping initiatives was similar. By focusing on what they perceived as the primary conflict driver—the disputed territory itself—the war-stoppers discounted the degree to which secondary conflict drivers—internal politics, economics, and abstract principles—might inhibit compromise. A war-stopper must recognize a situation in which the disputants stand to

149 150 151 152 153 154 155 156

precio.” Galtieri habló desde un balcón de la Casa Rosada [Galtieri Spoke from the Casa Rosada Balcony], La Prensa (Arg.), Apr. 3, 1982, at 8 (author’s translation). Hastings & Jenkins, supra note 7, at 112. After the Argentine switchback of Buenos Aires Round Two, Haig surmised, “It was clear that I was not dealing with people who were in a position to bargain in good faith.” Haig, supra note 64, at 286. For a discussion on principles and their ability to “rally” the public during the Falklands War, see Thomas M. Franck, Dulce et Decorum Est: The Strategic Role of Legal Principles in the Falklands War, 77 Am. J. Int’l L. 109 (1983). Monaghan, supra note 145, at 9 (quoting The Falklands Campaign: A Digest of Debates in the House of Commons, 2 April to 15 June 1982, at 74 (K.S. Morgan ed., 1982)). Id. at 10 (quoting Margaret Thatcher, To the 52nd Annual Conservative Women’s Conference, London, 26 May 1982, in In Defense of Freedom: Speeches on Britain’s Relations with the World 1976-1986, at, 72, 73-76 (1986)). Id. (quoting The Falklands Campaign: A Digest of Debates in the House of Commons, 2 April to 15 June 1982, at 56-57 (K.S. Morgan ed., 1982)). See generally id. at 1-38 (providing other examples of principled polarities deployed by Thatcher and the Conservatives during the Falklands conflict). Thatcher, supra note 142, at 198.

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gain from war, or similarly, when they have sold the war domestically in such a way that any modicum of concession is tantamount to an abandonment of broader principles. Here, had the mediators more adequately accounted for such a scenario, they might have focused their efforts on solutions that catered to the disputants’ need to satisfy the public and adhere to certain principles. B. The Haig Mediation: Problems of Timing, Credibility, Process, and Mixed Messages 1. Timing: Overcoming Optimism Bias157 The most interesting—and perhaps depressing—aspect of the Haig mission was that unlike most war-stopping mediations, “shortage of time was clearly not one of their handicaps.”158 His was not a mediation operating under duress; violence had yet to escalate much beyond the initial Argentine invasion. The delay of nearly a month and a half between the Argentine invasion and the arrival of the British task force presented the Haig team with an environment in which the diplomats had time to massage the disputants’ positions before, not during, military encounters. This lull between invasion and mutual confrontation is unique to the Falklands War; it suggested that the potential war-stopper’s job would be easier, avoiding the need to shout over flying bullets. Given such an ideal war-stopping environment, what accounts for the American failure to contain the war and stop its progression? Although it seems counterintuitive, the early intervention was more of a drawback to, than an enabler of, a successful mediation. Haig intervened early, prior to the majority of military operations, at a time when the parties’ perspectives and attitudes were colored by an optimism bias. As a result of this bias, each party underestimated the projected costs of war as well as the benefits of a peaceful resolution.159 Although early intervention sounds like a good idea, there is much to be said for conflict “ripeness.”160 At the outset of the conflict, both parties harbored opti157 There is a broad literature on the effects of optimism bias, a well-known cognitive bias. As Jolls points out, “the empirical evidence makes clear that optimism bias reflects not only underestimation of the probability of a negative event [. . .] but also underestimation of the probability of a negative event relative to the actual probability of that event.” Christine Jolls, On Law Enforcement with Boundedly Rational Actors, in The Law and Economics of Irrational Behavior 268, 271 (Francesco Parisi & Vernon L. Smith eds., 2005). 158 Claude, supra note 1, at 119. 159 Hugh Wyndham, The Falklands: Failure of a Mission, in Building International Community: Cooperating for Peace Case Studies 229, 24-41 (Kevin Clements & Robin Ward eds., 1994). One popular theory links Argentina’s domestic constraints with its optimism bias to advance the claim that “mutual misperceptions led to the onset of a conflict that neither side wanted. [. . .] [T]he political need for rousing a fait accompli could have fostered biases or wishful thinking within the junta with regard to the chances of success.” Arquilla & Moyano Rasmussen, supra note 135, at 740. Yet, as the authors recognize, these theories only go so far as to explain the “initial grab.” Id. 160 See generally J. Michael Greig, Moments of Opportunity: Recognizing Conditions of Ripeness for International Mediation Between Enduring Rivals, 45 J. Conflict Resol.

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mistic outlooks about their chances of military success. Given the early stages of the conflict, with little loss yet incurred, both sides calculated the future costs of war as minimal, a calculation that implicitly discounted the value of a peaceful resolution. As Michael Reisman points out, “In most modern armed conflict [. . .] at least one of the belligerents commences the conflict with the [. . .] expectation that the application of violence, its projected costs notwithstanding, will still leave it net better off than would the use of some other available nonviolent mode.”161 As a result, a warstopper who intervenes near the beginning of a conflict may find his or her ideas muffled by the disputants’ overly optimistic expectation that force is a more effective, efficient, and honorable vehicle to advance their interests. Accordingly, the earliest stage of the conflict may be the most difficult one in which to persuade disputants to abandon pursuit of force. As the conflict continues, “[r]ivals may be motivated to adopt more cooperative strategies toward one another not only as a result of what has happened in the past but also out of fear of what may happen in the rivalry relationship in the future.”162 Drawing upon this analysis, it seems that when Haig intervened, the conflict was not developed enough to have created the perception of “a precipice,” or any “impending or recently avoided catastrophe,” which might have prompted cooperation and facilitated the mediator’s task.163 Both sides probably suffered optimism biases when presenting their negotiating positions to Haig and responding to the proposals of their adversary. Britain’s optimism, as a major military and political superpower of the time, is easily understandable. A closer look from the Argentine perspective, however, reveals that their optimism was also reasonably well founded in the early days of the conflict. In the first instance, as many accounts suggest, Argentina clearly never believed that Britain would follow through with what it perceived as a military bluff. This is apparent in the decision-making process employed after the South Georgia incident. After the South Georgia incident, the junta was faced with several options: it could have backed down; it could have pursued some other more coercive diplomatic policy; or it could have mounted a full-scale invasion. When Argentina opted for the last and most extreme option, it never thought the decision would provoke massive retaliation.164 A senior Argentine official said, “We simply never dreamed for one minute [Britain] would send a task force. Had we known then what we know now,

161 162 163 164

691 (2001) (evaluating ripeness for mediation between rivals by examining mediation success); Marieke Kleiboer, Understanding Success and Failure of International Mediation, 40 J. Conflict Resol. 360, 362-63 (1996) (discussing contending views on conflict ripeness). W. Michael Reisman, Stopping Wars and Making Peace: Reflections on the Ideology and Practice of Conflict Termination in Contemporary World Politics, 6 Tul. J. Int’l & Comp. L. 5, 16 (1998). Greig, supra note 160, at 696. Id. (citing William Zartman, Ripeness: The Hurting Stalemate and Beyond, in International Conflict Resolution After the Cold War (Paul Stern & Daniel Druckman eds., 2000)). See, e.g., Arquilla & Moyano Rasmussen, supra note 135, at 751 (“[T]he junta fully expected the Thatcher government to confine its struggle to the United Nations and other international fora.”).

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the sceptics [sic] would have had powerful evidence to counter Anaya’s proposals for invasion.”165 The Argentine leadership saw the task force as a coercive tactic but, nonetheless, one that was diplomatic in nature—a move designed to pressure the Argentines into making concessions at the negotiating table. The second factor contributing to the Argentine optimism bias stemmed from its internal assessments of its own military capability. Objectively speaking, Argentina might just have had the “structural conditions for victory.”166 For one, funds to the British Admiralty over the preceding several years had been declining, while Argentine military spending had been on the rise since 1972.167 Preparations for potential confrontations with Brazil and Chile rendered the Argentine Navy far better equipped for long-range operations in the South Atlantic.168 Moreover, Argentina had a substantial advantage in aircraft.169 Finally, Haig also contributed to the Argentine optimism by portending American neutrality and thus reinforcing expectations of an impartial and possibly supportive United States.170 Although this expectation diminished as the weeks wore on, at the outset Argentina clearly thought the United States would remain neutral, a notion buttressed by “its beliefs about the American distaste for colonialism.”171 So long as the United States remained officially neutral, Argentina had less to fear and thus less reason to compromise. Several weeks after the Haig mission, Galtieri said, “to be frank, when I decided to recuperate (sic) the Malvinas I did not expect to provoke an incident of international importance, now I see that it did have that importance and I am worried.”172 This admission from the leading member of the junta suggests that had the United States dispelled the notion of its neutrality earlier, Argentina may have proven more flexible during the first several weeks of negotiations. Regardless of the nuances in negotiating positions, it was difficult for Haig to overcome the strength of these biases and to convince Argentina that withdrawal was in its best interest. In April, the British task force seemed a distant possibility, and Argentine military prowess seemed infallible. In sum, the apothegm “the sooner the better” is not a necessary predicate to successful war-stopping techniques. Given the parties’ mutually optimistic expectations for war, it is less clear that the early weeks of the conflict presented an optimal environment for stopping the war. As such, the Haig intervention, in these early days, found the conflict “unripe” for his effort. His mediation coincided with the 165 166 167 168 169

Hastings & Jenkins, supra note 7, at 337. Arquilla & Moyano Rasmussen, supra note 135, at 754-59; McClure, supra note 66. Arquilla & Moyano Rasmussen, supra note 135, at 755. McClure, supra note 66. Arquilla & Moyano Rasmussen, supra note 135, at 756 tbl.1; see also Paul, supra note 133, at 155-57 (describing how weapons factored into Argentina’s assessment of its capability vis-à-vis Britain). 170 Arguilla and Moyano Rasmussen point to others who “argue[] that it was Argentina’s participation in the United States’ covert operations in Central America, particularly the training of the contras, that fuelled misperceptions about American neutrality.” Arquilla & Moyano Rasmussen, supra note 135, at 751. 171 Id. 172 Id.

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apex of the parties’ optimism biases, and so the early timing of his intervention did not increase its chances of success. The type of war-stopping role the United States adopted in its early April intervention also hampered Haig’s success. A large part of the Argentine strategy was based upon the United States “put[ting] pressure on Britain to reach a settlement.”173 Therefore, an earlier abandonment of the “even-handed” policy could have gone farther to disabuse Argentina of its optimistic expectations. That is, with respect to timing, one might conclude that the United States would have been a more effective war-stopping agent if it had immediately declared its support for Britain and brought overt pressure to bear on the Argentines early on. 2. Credibility and Authority The inconsistency between the promise of even-handedness and the increasingly pro-British U.S. behavior was also inimical to Haig’s technique. The Argentines saw this as duplicitous, which diminished his credibility before them. That lack of credibility in turn, eventually robbed him of his authority, as the Argentines likely doubted his ability to protect their interests in the negotiating process. The Haig team, unlike other contingents of the U.S. government, felt strongly that regardless of the official policy, neutrality was not a sensible tactic. One member, David Gompert, explained that the team felt the United States really had to take a position: “I mean we weren’t neutral and evenhanded, even though a couple of people made some remarks to that effect early on. We weren’t. You just don’t invade disputed territory. You settle the dispute by peaceful means or not at all.”174 The team’s British leanings became increasingly apparent to the Argentines and overshadowed the actual goal of the mediation—to find some mutual ground upon which to frame a solution. By the second round in Buenos Aires, the junta was so preoccupied with what they saw as Haig’s deception that they failed to evaluate the substance of the proposals as distinct from the personality of the mediator. Although Haig had credibility with the British, his initial pretext of impartiality also adversely affected Britain’s early proclivity toward compromise.175 His “emphasis on something to give the Argentines” gave the British leadership the impression that he did not understand their position.176 Consequently, the prime minister and her cabinet seemed more “stern and purposeful” in their responses than their actual positions might have otherwise dictated.177 The British may have overcompensated for the lack of strong U.S. support with extreme rigidity, fearful that giving up too much too early would leave the Americans unconvinced as to why they should ever abandon their so-called evenhanded position. The Argentine leadership saw the Haig 173 Freedman & Gamba-Stonehouse, supra note 106, at 272. 174 Lippincot & Treverton, supra note 3, at 16. 175 See Kleiboer, supra note 160, at 369-72 (discussing the interplay of the mediator’s impartiality and leverage on mediation success). 176 Kinney, supra note 48, at 112. 177 Id. at 112-13.

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mediation as thoroughly disingenuous, a perception that created bitterness that poisoned subsequent mediation attempts. Assuming arguendo that Haig had maintained credibility with the junta, his authority in Buenos Aires would still have been questionable for reasons relating to the relative power disparity between Argentina and the United States. As Thomas Princen points out, “To accede to a dominant power’s suggestions, no matter how reasonable [. . .] would have challenged Argentina’s very reason for launching an invasion—to demonstrate the leaders’ strength and resolve and their ability to manage Argentina’s own affairs.”178 In the end, however, a counterfactual analysis does not lead to the ineluctable conclusion that a powerless and impartial war-stopper would have had any more success; such an anemic individual would have held little authority or leverage with the British. This suggests that when there is a significant power imbalance between the disputants themselves, it is difficult to strike the appropriate balance between the war-stopper’s power and his partiality. 3. Process: The Shuttling War-Stopper On a procedural level, Haig’s decision to shuttle was an inappropriate choice given the erratic nature of the junta’s decision making and the intensity with which the public in Buenos Aires was clamoring for war.179 Haig’s decision to shuttle back and forth across the Atlantic was clearly modeled after Henry Kissinger’s similar strategy in the Middle East. The mediation technique, however, was erroneously applied to the Falklands conflict. For Kissinger, the ability to shuttle between relatively close Middle Eastern capitals made the technique practicable. However, the distance between London and Buenos Aires was substantially greater. The time and energy involved in traveling between these capitals made it more difficult to maintain the momentum of the mediation. The junta reneged on several of its concessions or hardened its position noticeably during Haig’s absence. This suggests that the junta was the type of disputant that needed consistent engagement and massaging; leaving Argentina “alone with its thoughts” was a drawback of the shuttle technique. The sporadic pace of the mediations, caused by Haig’s absence between rounds, allowed a war-thirsty public and the hard-line views held by certain members of the junta time to foment. Arguably, the shuttle technique should be reserved for two types of conflicts: (1) those that are geographically proximate or (2) those in which the disputants have already decided on a peaceful solution and are only deadlocked over details. In the former conflict type, the shuttle is a viable option because it can sustain, and even increase, energy on two levels: (1) that of the war-stopper (or war-stopping team) and (2) that of the disputants (and their domestic constituencies). The importance of an energetic war-stopper is key—a jetlagged and sleep-deprived war-stopper will 178 Thomas Princen, Intermediaries in International Conflicts 172 (1992) (discussing the Beagle Channel dispute). 179 See Kleiboer, supra note 160, at 374-65 (explaining that the mediator’s process affects mediation success and distinguishing between passive and active mediating processes).

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transmute lethargy and disengagement on the ground. With respect to the disputant, a short-distance shuttle may actually heighten excitement within its internal constituencies. A fast pace back-and-forth shuttle piques the disputant’s war-stopping adrenaline by putting pressure on it to be sharp, alert, and prepared for the quickly evolving proposals and each subsequent round. This anticipation for progress could be beneficial to the war-stopper’s work. Conversely, any effervescence, or sense of urgency to push forward, fizzles if the war-stopper is absent for several days. In the latter conflict type, if the parties have already decided on a peaceful resolution, there is low risk that the initiative will disintegrate when the war-stopper departs to visit the other side. Thus, the difference between a day and a week between rounds is less salient. If the big-picture goal of a peaceful solution is already generally accepted, then the war-stopper’s role is focused primarily on ironing out the details of the agreement. If that is the case, the likelihood that periods of low energy or activity will prompt a drastic decision to abandon peace for force is minimal. This was not the case in the Falklands, where the approaching task force underscored that the decision between peace and force was still very much up in the air. 4. Mixing Messages Finally on a global level, the United States sent a very mixed message to the junta in April. When a war-stopping attempt is composite, the war-stoppers must be conscious of the coherence of the overall message and take care not to send a mixed message. Haig was not the only source of this mixed message; he was, after all, just one actor in the mix. It was the totality of the U.S. message—in both words and behavior—that led Argentina to form two parallel assumptions: (1) Britain’s task force was not credible; and (2) even if it was, the United States would ultimately use its influence to restrain Britain in the final hour. Haig and his team were not the direct source of Argentina’s incredulity. To the contrary, Haig approached Argentina early and took pains to establish that the British task force was credible.180 During the first trip to Buenos Aires, he sensed that his spoken message, confirming the reality of British force, was falling on deaf ears.181 To clarify and amplify, he sent the special envoy, General Vernon Walters, to speak to Galtieri directly in Spanish. Walters minced no words, telling the president, “General, they will fight, and they will win.”182 Despite the perspicuity with which the Haig team spoke, other U.S. actors simultaneously diluted the message. The White House was vague from the start in its public insinuations of who would and would not be using force. On April 5, President Reagan commented that 180 Haig focused first on disabusing the junta of their first assumption, which he pointedly addressed in Buenos Aires Round One: that is, the misplaced assumption that the British task force was not credible. More pointedly, during Buenos Aires Round Two, he began to combat assumption two: that the United States would dare not support Britain. 181 Freedman & Gamba-Stonehouse, supra note 101, at 176. 182 Id.

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Christina Parajon It’s a very difficult situation for the United States because we’re friends with both of the countries engaged in this dispute and we stand ready to do anything we can to help them, and what we hope for and would like to help in doing so is [to] have a peaceful resolution of this with no forceful action or bloodshed.183

Such a statement cut against Haig’s attempts to persuade the junta that “forceful action or bloodshed” was indeed on the menu.184 Policy makers within the U.S. State Department were divided on the issue from the beginning. Some members of President Reagan’s inner circles, especially Jeane Kirkpatrick, the U.S. ambassador to the United Nations, felt strongly that neutrality was imperative. On Latin American issues, Kirkpatrick was the most knowledgeable and was considered the administration’s expert on the region.185 Throughout the conflict, she remained the most vocal member of the “pro-Argentine”186 contingent—those who argued that the United States should remain neutral as to whether Argentina had been wrong to use force.187 This contingent advanced geopolitical arguments “based on hard but controversial strategic calculations,”188 and in general she embraced the notion that supporting right-wing authoritarian regimes advanced U.S. interests.189 Kirkpatrick’s overtures toward Argentina throughout the conflict were wholly inconsistent with Haig’s message. Her actions and public statements from invasion through late May suggested that some factions of the U.S. government supported Argentina, in direct contradiction to Haig’s averments in Buenos Aires. For instance, on the night of the invasion she attended a dinner in her honor hosted by the Argentine ambassador.190 The next day she was conspicuously absent from the UN vote on Resolution 502,191 which was well known to be a product of British engineering and an open castigation of the Argentine incursion. Additionally, it was rumored that by the end of the first week of Haig’s shuttle, she had assured Argentina that in exchange for its continued backing on Nicaragua, “there would be no American criticism in the U.N. on the landing in the Falklands.”192 Publicly, Ambassador Kirkpatrick opined, “The Argentinians have been claiming for 200 years

183 184 185 186 187 188 189

Id. at 168. Id. Id. at 155. Lippincot & Treverton, supra note 3, at 13. Freedman & Gamba-Stonehouse, supra note 101, at 157. Id. at 156. See Jeane J. Kirkpatrick, Dictatorships and Double Standards, Commentary, Nov. 1979, at 34 (setting out Kirkpatrick’s geopolitical views on U.S. foreign policy toward authoritarian regimes). 190 Freedman & Gamba-Stonehouse, supra note 101, at 159-60. 191 She requested a delay on the vote as well. Id. at 157. 192 Haig, supra note 64, at 269.

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[. . .] that they own those islands. If they own those islands, then moving troops into them is not armed aggression.”193 The media added to the mix by dramatizing the degree to which Kirkpatrick and Haig “feuded” over the proper U.S. role vis-à-vis Argentina.194 Such known disagreement within the uppermost policy circles would have surely caused Argentina to doubt the firmness of the administration’s resolve. On the whole, the discordant message undercut Haig’s ability to persuade the junta to fully appreciate the risks of a failed mediation. Cognitive dissonance, born of a mixed message, influenced Argentina’s decision to persevere through April in spite of the approaching task force. Overall, the Haig shuttle did nothing to prevent the war from advancing to the next stage of violent conflict. It was, more than anything, beneficial to the British war aims. As Sir Nicolas Henderson put it, “There were positive advantages in Haig’s toings and fro-ings and frequent proposals. Without them, Argentine intransigence would not have been exposed, and without this exposure the American decision to give Britain support would probably not have come when it did or been so categorical.”195 Moreover, the Haig shuttle was not the only war-stopping technique invoked by the United States. The subsequent British “tilt” was a war-stopping tactic in and of itself because “the would-be international peacemaker may contribute to [the conflict’s] outcome by throwing its weight on the side of one of the belligerents.”196 Considering the foregoing analysis, this technique, rather than Haig’s shuttle, would have been better placed immediately after the Argentine invasion. Early U.S. vituperation, coupled with the outstanding UN Security Council Resolution 502, would have sent a mutually reinforcing message. With earlier and more overt pressure, the Argentines might have found the cost-benefit equation less favorable toward war. C. Belaunde’s Mediation: Problems of Interest and Process The British task force was still en route when the Peruvian mediation began, so the military situation, while more tenuous than before, was still relatively stable: the war was still in a stoppable phase. Ultimately, however, the confluence of the mediator’s interests and the military losses and gains on both sides drastically reduced the disputants’ willingness to accept his effort. 1. Interests of the Mediator Although impartiality is not a necessary condition of an effective mediation, it does affect the disputants’ estimation of whether third-party intervention will provide a 193 Id. 194 Bernard D. Nossiter, Kirkpatrick Feud with Haig Is Noted, N.Y. Times, May 31, 1982, at A5. 195 Sir Nicolas Henderson, Case Study in the Behaviour of an Ally, Economist, Nov. 12, 1983, at 49, 60. 196 Reisman, supra note 161, at 36.

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better outcome than other available alternatives—in this instance, deadlock or war.197 Disputants generally prefer mediators who are allies, agents, impartial, or biased—in that order.198 While some disputants will accept a biased mediation, the scenarios are limited: the disputant will only accept a clearly biased mediator if it perceives that the outcome of such a biased effort is still preferable to war.199 Here, ironically, Belaunde’s two-fold interests (whether real or as conceived of by the disputants) made him appear biased from the perspectives of both sides. Accordingly, competing interests were perhaps the most debilitating factor in the Belaunde meditation and the factor that ultimately rendered him unable to attract the disputants back to the metaphoric table in the wake of the Belgrano and Sheffield losses. Again, two sets of interests detracted from the efficacy of the Peruvian mediation. The first stemmed from the U.S. involvement and decreased Belaunde’s credibility with the Argentines. The second derived from Belaunde’s own political and geostrategic interests, which in turn gave the British pause regarding his ability to remain unbiased. With regard to the first set of interests, it quickly became obvious that the United States sought to use Belaunde as a shell for continued involvement in the mediation process: “Haig had far from given up the ghost. Aware that any overt American role would now be counterproductive, he decided on a covert one. He donated his latest plan to Belaunde lock, stock and barrel.”200 And so the Peruvian plan amounted to little more than “an ill-disguised version of Haig Two—‘Haig in a poncho’—with no extra ingredient beyond the offer of Latin American participation in the interim administration.”201 This point was most disadvantageous on the Argentine side, given its lingering distaste for Belaunde’s forerunner. Turning to the second set of interests, one can make the case, from a British perspective, that Belaunde was biased in favor of Argentina. Although not directly reflected in the text of his proposal, geopolitical concerns bore upon Belaunde and likely affected his dealings with the parties in a less transparent way. For Belaunde, using the mediation as a way to gain Argentina’s good graces would have been advantageous given the regional dynamics in the early 1980s. For one, Argentina and Peru shared a common rival and neighbor in Chile,202 and Peru was uncomfortably 197 Princen, supra note 178, at 62. 198 Id. 199 Id. 200 Hastings & Jenkins, supra note 7, at 165. 201 Id. 202 Argentina was embroiled in a simultaneous territory dispute with Chile over the Beagle Channel Islands. Peru had a historic rivalry with Chile, stemming from the late 1800s War of the Pacific. In this conflict, Bolivia lost its territory on the Pacific Coast to Peru and Chile. Bolivia’s insistence on procuring for itself a direct access route to the sea was the present source of tension between Peru and Chile, neither wanting to relinquish any of its share of territory. Jennie K. Lincoln, Peruvian Foreign Policy Since the Return to Democratic Rule, in The Dynamics of Latin American Foreign Policies: Challenges for the 1980s, at 137, 144 (Jennie K. Lincoln & Elizabeth G. Ferris eds., 1984).

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proximate to the region’s two “threshold nuclear powers,” Argentina and Brazil.203 The possibility of a stronger Peru-Argentina friendship, which might buttress the former vis-à-vis Chile and Brazil, would appear a significant perquisite, securing an outcome that pleased Argentina. Given the interstate rivalries of the day, no doubt Belaunde was aware of how his war-stopping role might be leveraged to the benefit of Peru and his presidency. Indeed, the military gestures, proffered concurrently and soon after the mediation, underpin the contention that Belaunde was mediating with the premise that Peru should support Argentina. Although diplomats did not admit to rendering material aid to the Argentines while the Belaunde mediation was ongoing, the suggestion that Peru would do so was none too subtle in the immediate aftermath of the mediation’s failure. Two days after the end of the mediation, on May 7, War Minister General Luis Cisneros Vizquerra reported that the “Peruvian army [was] ready to intervene in support of Argentina if required.”204 With hindsight, it seems possible that Peru had materially supported Argentina during the Belaunde mediation. In fact, several weeks after the conclusion of his mediation, Belaunde told the New York Times that “Peruvian armed forces have always been in close contact with Argentina” and that “[t]hese relations continue, more so since we know Argentina is in very serious circumstances.”205 Considering these points, one understands why Britain criticized the Belaunde mediation as biased in favor of Argentina.206 Thus, although “impartiality per se is not a necessary condition” of an effective mediation in all cases,207 here, the operative interests of the mediator were detrimental to his effort. On the one side, Argentina’s perception of bias stemmed from the Haig contagion and made it all the easier to reject Belaunde’s continued efforts after the Belgrano. On the other, British perception of a preference for a pro-Argentine resolution may have inhibited his ability to attract more than perfunctory attention from the British. 2. Process: Detachment Separate from his interests, Belaunde’s emphasis on simplicity resulted in a mediation that seemed ad hoc and not serious.208 In an effort to distinguish his effort from the Haig process, Belaunde’s goal was to distill the debate down to the key sticking points and concentrate the parties’ attention on the ingredients necessary to stop the war. From a methodological perspective, this was an improvement on the Haig 203 Jack Child, Inter-State Conflict in Latin America in the 1980s, in The Dynamics of Latin American Foreign Policies: Challenges for the 1980s, supra note 202, at 21, 23. 204 Latinnews.com, International: Opinion Swings Against Britain, Latin American Newsletters (May 7, 1982), http://www.latinnews.com/arcarticle.asp?articleid=79471& search=cisneros. 205 Douglas Martin, Peru Warns U.S. on Latin Relations, N.Y. Times, May 31, 1982, at A5 (emphasis added). 206 Kinney, supra note 37, at 103. 207 Princen, supra note 178, at 62. 208 Kinney, supra note 37, at 103.

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approach. The drawback was in its execution. Belaunde’s negotiations took place over the phone, and the process never required convening the parties.209 As a result, when the military aspect began to heat up with the sinkings of the Belgrano and Sheffield, Belaunde could do little from afar to manage the parties’ rapidly changing expectations. Hence Belaunde’s detached and distant style allowed for military events to eclipse his peace efforts. On-site mediation, and a more active relationship with the parties, was a necessary counterweight to his relative lack of hard power over either of the parties. Unlike the United States, Belaunde had little power with which to back his proposals. A distant, powerless war-stopper can do little to reassure a party that peace is preferable to retaliation in the face of escalating violence.210 Therefore, his initiative quickly lost traction when the parties sustained significant military losses. In sum, Belaunde’s detached mediation, combined with the interests that colored him biased, caused him to miss a key window during which he might have leveraged military devastation to alter the parties’ attitudes and expectations for peace. D. UN Involvement The third mediation fell prey to something fundamental to the evolving nature of a conflict. That is, after a conflict advances to a certain stage, an inflection point is reached. Beyond this inflection point, mediation becomes rather useless as a warstopping technique, unless coupled with other coercive-based measures. On a macro level, the United Nations’ inability to stop the war—either through Resolution 502 or the subsequent Perez de Cuellar mediation—speaks to the deleterious effect of an incoherent approach. To the detriment of its war-stopping potential, the United Nations straddled an enforcement role and a mediatory role.211 This undermined its ability to focus the disputants’ attention on the elements necessary to halt the violent portion of the conflict. Consequently, the disputants came to view the Perez de Cuellar mediation as not necessarily aimed at war-stopping. Instead, the parties conceived of the Secretary-General as something more akin to an arbiter, whose blessing was yet another prize to be won.212 This co-opted the mediation attempt into an extension of the conflict itself. 1. Timing: The Inflection Point The failure of the UN mediation brings to light the inadequacy of mediation as a war-stopping technique after a certain critical inflection point in the conflict. The 209 Kinney, supra note 48, at 152. 210 Cf. Kleiboer, supra note 160, at 372 (pointing to the evidence that suggests “that a neutral mediator’s lack of leverage is important, whereas partial mediators need possession of leverage to create successful results”). 211 See generally Claude, supra note 1, at 121 (discussing the tension between combining collective security and pacific mediation arising in the Falklands conflict). 212 Problematically, each side came to view the United Nations as “a dispenser of collective legitimacy” first, and as a mediator second. Claude, supra note 1, at 122.

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timing problem with this mediation is the converse of that suffered by Haig: Haig was too early, Perez de Cuellar was too late. By the time Perez de Cuellar began his mediation in earnest, the British were interested in little more than a way out of peace negotiations; they believed (rightly) that they were about to win the war militarily. In evaluating the potential value-added of yet another mediation, Thatcher explained, “The vital consideration was that we bring the negotiating process to an end—ideally, before the landings—but in such a way as to avoid appearing intransigent.”213 It appears Britain’s decision to accept the UN initiative was rooted in a strategic need to consolidate international support, insofar as continued negotiations could perpetuate the British image of reasonableness rather than any particular desire, belief, or expectation of reaching an agreement. Before the last hoorah, the prime minister wanted a final testament that Britain had naturally always preferred peace, but Argentina—stubborn till the end—had left her no other option. Perez de Cuellar began with a decided disadvantage; at least one of the parties was no longer interested in a peaceful resolution. In the midst of the UN mediation, Britain determined that military force was inevitable. Thatcher’s mid-May announcement, that “a negotiated settlement may prove to be unobtainable,”214 supports the argument that the British leadership had by that point decided that full-fledged force was inescapable. Such a decision, by one or both of the parties, marks the inflection point of a conflict after which time mediation alone is impotent. That is, although a disputant may continue with, or agree to, subsequent war-stopping attempts, after a decision that force is a more efficient solution, any future participation in mediation is hollow. The war mentality is difficult to break. After a disputant has begun to prepare—mentally, economically, or militarily—to encounter its opponent with violence, a thirdparty mediator’s challenge to dissuade the disputant from its chosen forceful path becomes substantially more difficult. Therefore, it is key for the potential war-stopper—especially one who uses the mediation technique—to recognize if and when a disputant has reached an inflection point. If that is the case, the mediator must then discount the likelihood of success by the (estimated) degree of the disputant’s resolve to pursue the forceful option. 2. Credibility: The Taint of Past Failures In addition to the limitations attendant to any intervention attempted in an advanced stage of a violent conflict, previous failures also handicapped the Perez de Cuellar mediation. Perez de Cuellar paid the price for the mistakes of his predecessors. Tunnicliff posits that failures of previous third-party interveners adversely affect the chance of successful UN mediations that are successively attempted.215 This souring effect was most pronounced in the British attitude toward the UN mediation. 213 Thatcher, supra note 142, at 222. 214 Hastings & Jenkins, supra note 7, at 172. 215 Tunnicliff, supra note 96, at 35-36 (hypothesizing that “the United Nations must intervene prior to efforts by any other third parties”; this being a facilitative condition for a successful UN mediation).

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Thatcher accepted the UN mediation reluctantly, at Pym’s urging, but only as a pretext for maintaining reasonableness. The letdown after the Haig and Peruvian attempts had moved Thatcher beyond any idealism she may have at any time entertained; she held minimal expectation that the UN route would deliver a workable solution. The expectations that any mediation could avert the impending clash were now nil: “Mrs. Thatcher was prepared to acknowledge that Britain should never be seen to be refusing peace [. . .] [but] [n]ot for one minute did she believe [Britain] would succeed with [it]’s demands intact.”216 Perez de Cuellar, as the third in a line of successive failures, set off to work with a disputant who was already resigned to disappointing results. 3. Credibility: The Secretary-General with Only His Good Offices The ability to bring real pressure to bear on the feuding parties is crucial for a latecoming mediator. As per the foregoing analysis, in a postinflection point initiative, only a coercive variant of war-stopping can hope to compete with military force for the parties’ attention. This factor, combined with the protracted deadlock, rendered it highly unlikely that a powerless war-stopper could finesse intraparty concessions. In this regard, Perez de Cuellar’s preemptory decision to intervene in early May, prior to a Security Council endorsement (in the shape of an explicit resolution), was disadvantageous to his peace initiative.217 Although a Secretary-General does not formally require Security Council authorization in order to mediate, the lack thereof in this situation was a limiting factor.218 Without the Security Council’s blessing, the Secretary-General was more or less a free agent, lacking the ability to offer security guarantees, carrots, sticks, and the like—the standard repository of mediating levers that might accompany a socalled coercive variant of war-stopping. Admittedly, a powerless war-stopper might be effective in certain situations (for instance, between two parties exhausted from fighting or fearful of the future). However, Perez de Cuellar confronted two parties with plenty of fight left in them. It was clear that he would not be calling in “back up.” The lack of such a prospect made the parties less concerned that their failure to play nice with Perez de Cuellar and Resolution 502 would carry consequences. 4. Process: Mixing Enforcement and Mediation Setting aside the Perez de Cuellar mediation itself, a more general critique stems from the way in which the United Nations shifted war-stopping gears.219 Mediation was not the only war-stopping technique in the UN arsenal during the Falklands War. Arguably, the April 3 resolution did not envisage a mediation role for the 216 217 218 219

Hastings & Jenkins, supra note 7, at 164. Laucirica, supra note 2, at 90. Id. Claude stresses the need to consider carefully if and when “mediatory and enforcement roles can be combined without difficulty in an international organization.” Claude, supra note 1, at 120-21.

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United Nations.220 Rather, as Claude argues, it sketched the outline of what looked more akin to a collective security function, providing a “fitting introduction to the operation” of such a role.221 Collective security, a somewhat amorphous construct, in this instance would have presumably meant some affirmative steps beyond a resolution: action taken to make Argentina back off. Ostensibly, the Argentine invasion was a paradigmatic instance of precisely when the machinery of collective security, be that what it may, would be set in motion to stop aggression by one member against another. Thus inaction in the face of Argentina’s blatant disregard of Resolution 502 was particularly conspicuous, putting the Security Council in a very awkward position indeed. And so, from the disputants’ perspective, Resolution 502 was as far as the Security Council would extend itself in exercising its “primary responsibility for the maintenance of international peace and security.”222 This made Perez de Cuellar’s late intervention confusing. Had the United Nations backed off Resolution 502, or was the Secretary-General sent in as an enforcement marshal? Perez de Cuellar’s mediation was not necessarily inconsistent with the collective security principles alluded to in Resolution 502. In fact, he made clear his belief that implementation of Resolution 502 was essential to a peaceful resolution and would undergird his initiative.223 Yet, rather than openly endorse a mediation approach early on—explicitly stating that this was the method by which it would advance its resolution—the Security Council sat on its hands for two months. It was not until May 26 that Resolution 505 called upon the Secretary-General to work with the parties toward a mutually acceptable implementation of Resolution 502.224 Meanwhile, the Secretary-General had taken it upon himself to mediate; and so Resolution 505 seemed like an afterthought giving the green light to something that had not really asked for permission in the first place. Whatever the reasons for this disjointed approach, the UN position came off as inconsistent. Even more damaging to the war-stopper’s image, is the appearance of uncertainty. The decision to endorse mediation in the endgame of the conflict looked like backpedaling. Nearly two months earlier, Resolution 502 had deemed the Argentine aggression to be wrongful. But the need to mediate the issue instead implied that “rightness” was an issue still to be determined.225 Effectively, the Security Council appeared to have recanted its initial position: “if Argentina had been the villain in Resolution 502, Britain was at least equally culpable in Resolution 505.”226

220 Laucirica, supra note 2, at 90. 221 Claude, supra note 1, at 121. 222 (Ismat Kittani, Preventative Diplomacy and Peacemaking: The UN Experience, in Peacemaking and Peacekeeping for the New Century 89, 90-91 (Olara A. Otunnu & Michael W. Doyle eds., 1998). 223 Kinney, supra note 48, at 222. 224 Resolution 505 “[e]xpresses appreciation to the Secretary-General for the efforts he has already made to bring about an agreement” and “[r]equests” that he “undertake a renewed mission of good offices.” S.C. Res. 505, UN Doc. S/RES 505 (May 26, 1982). 225 Claude, supra note 1, at 129. 226 Id.

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Aside from Resolution 505, the Secretary-General’s mediation gave the disputants reason to believe that Perez de Cuellar’s involvement might present the opportune moment to validate their war aims, that is, to reargue their case before the United Nations.227 In Claude’s view, the parties thus perceived Perez de Cuellar’s mediation “for purposes less related to settling than to winning the dispute” as “each undertook to secure the blessing of the UN for its own cause and to call down a UN curse upon that of the opponent.”228 To the extent that the Secretary-General might place his imprimatur on one side or the other, each party latched onto the mediation as the last chance to validate its cause and, in turn, legitimate the use of force.229 The UN mediation, by fault of its own discordant policy, became co-opted into the military strategies of both sides. In conclusion, a collective security-mediation hybrid is a plausible war-stopping technique but only if applied in a mutually reinforcing fashion. A mediation initiative taken up before Security Council support can become problematic if the conflict has advanced beyond a certain stage. Also, the greater the time lag between when the Security Council adopts a position on the conflict and the start of any subsequent mediations, the greater the propensity for disputants to perceive this as a shift in policy. Accordingly, greater time lags create a potential source of agitation. This case thus underscores the need to identify when the United Nations can play both a mediation and an enforcement role, and, more to the point, when a conflation of the two can be deleterious to a war-stopping effort. The United Nations’ approach in the Falklands unsuccessfully, and rather ungracefully, commingled a collective security function with a mediation function. Notwithstanding the problematic mixing of the enforcement and mediation roles, the Perez de Cuellar mediation suffered from a more fatalistic problem. Realistically speaking, it was ultimately an inexorable advance of force that overtook his efforts. By late May, the parties were so close to full-scale war that mediation was no longer the most realistic option. Only a coercive technique, such as some reiteration and intensification of Resolution 502 principles, could have stopped the war using the threat of collective force or condemnation to force Argentina to withdraw. VI. Conclusion and Lessons Learned The Falklands War presents several lessons for the would-be war-stopper. First, recognizing the full panoply of interests at play is critical. This applies to the warstoppers as well as the disputants. Interests—national, personal, and political—will invariably affect the potential war-stopper’s ability to leverage his or her credibility and authority with both disputants. Similarly, interests affect a disputant’s propensity for reaching a peaceful solution, as measured against a preference for ongoing deadlock or war. 227 Id. at 122. 228 Id. 229 Id.

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Second, a mixed message significantly detracts from the war-stopper’s efficacy. This relates to the previous point. Notably, a mixed message can (but need not always) be derivative of conflicting sets of interests within a war-stopping constituency. For example, the U.S. war-stopping constituency harbored competing desires to maintain friendly relations with Western Europe (perhaps affected by Cold War considerations in finding a home for U.S. short-range missiles) and the equally strong desire for amicable relations in the Southern Hemisphere (again, to ward off Soviet influence). This clash represents a paradigmatic conflict of interests that maps onto the war-stopping message and renders it dissonant. The UN vacillation was similarly deleterious. A mixed message incentivizes the continued use of force. It suggests to one or both of the disputants that there may be reason to “hold out,” because some still believe in its cause and, by implication, support its use of force. This perception, in turn, shapes the disputants’ calculations for war versus peace and affects the warstopper’s ability to move the war-stopping initiative forward. Stemming from the need to understand the full range of interests at play and the dangers inherent in mixed messages is a global lesson regarding the definition of “war-stopper.” The definition of “war-stopper” must be supple and provide space for secondary actors whose voices or actions shape the ways in which the disputant perceives the initiative, writ large. This was especially pertinent in the Falklands. Evaluating the mediating efforts of Haig, Belaunde, and Perez de Cuellar provides limited grist for the war-stopping mill. A more complete and expanded definition of “war-stopper” includes other factions, such as President Reagan and Jeane Kirkpatrick, the Peruvian military, and the Security Council, respectively, for the three mediations. In fact, only with this expanded definition can we begin to conjecture about the sources of the junta’s incredulity in April and its underlying motivation to continue fighting through May. Finally, third-party mediation may be a standard tool in the war-stopping kit, but it is not a technique appropriate for all stages of a conflict. In the Falklands case, mediation was a tenable technique in April, but it was quite inadequate to the challenges in May. By May, the British had become only nominal participants in the mediation. Once Britain decided that force could yield a more productive outcome than the ongoing mediations, Mrs. Thatcher became largely ambivalent toward the mediation’s success. For her, after mid-May—the inflection point—mediation was simply a venue for image upkeep, in which she could maintain the appearance of reasonableness. The barriers to a May settlement were also high on the Argentine side. Even if one might argue that Argentina would have accepted a mediated solution in May, it would have done so only on terms most favorable to itself; by this point the junta’s options were limited to full sovereignty or a full fight. Despite the parade of war-stoppers who attempted and failed in their mission, the outcome in the Falklands may not have been inevitable. The junta’s war aims were containable and satiable: political self-preservation and the need to appear strong and authoritative. These goals could have been satisfied without the full use of force in the first several weeks of the war. Quite possibly, therefore, the United States could have stopped the war in April but only if it had adopted a war-stopping role significantly different from the mediation role it actually adopted. Rather than mediation, the United States should have applied direct pressure on the junta

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to withdraw. A U.S. demand to withdraw, however, would have been of limited value without some other compelling, tangible reason for doing so. This raises the question of what the United States might have offered, in addition to words, that would have persuaded the junta to withdraw without first securing the elusive guarantee of sovereignty. An offer for an ad hoc and binding arbitration on the matter is one plausible answer. This suggestion draws on existing precedent from the Rainbow Warrior affair, in which arbitration allowed France and New Zealand to diffuse a situation that otherwise could have led to forceful confrontation. On July 10, 1985, the Greenpeace vessel Rainbow Warrior was sunk by explosives in Auckland Harbor, New Zealand.230 Two days later, two French intelligence officers, Major Alain Mafart and Captain Dominique Prieur, were arrested for the explosion and the destruction of the vessel; they later pled guilty, were convicted, and sentenced.231 France, by way of its agents, had violated New Zealand’s territorial integrity.232 After the incident, tension arose between the two countries, principally over the repatriation of the two officers and France’s decision to block imports from New Zealand. Unable to resolve these issues through diplomatic negotiations, France and New Zealand agreed to refer the matter to arbitration by UN Secretary-General Perez de Cuellar.233 His July 6, 1986, ruling was straightforward: France must apologize to New Zealand, pay reparations, and refrain from impeding New Zealand exports.234 In all likelihood, this relatively innocuous punishment made any abatement of the Franco-New Zealand friction politically possible, and palatable, for both disputants. The value in a binding arbitration stems from its currency as a politically viable alternative to war that is both face saving as well as adequately deferential to the fact that certain norms were breached. Moreover, it is a close cousin of mediation, in that it leverages the neutrality and impartiality of a third party. Though said in reference to the Rainbow Warrior ruling, the following comment could equally have described an arbitrated solution in the Falklands: “This solution is not without critics in both countries. [. . .] However, [. . .] the settlement proved much more acceptable—precisely because of its unimpeachable source—than would have been the same, or any other, solution arrived at solely by the parties themselves.”235 This observation squares with the notion that in the Falklands, a similar arbitration, in which the outcome was truly uncertain, might have been an acceptable alternative to continued violence. 230 J. Scott Davidson, The Rainbow Warrior Arbitration Concerning the Treatment of the French Agents Mafart and Prieur, 40 Int’l & Comp. L.Q. 446, 446 (1991). 231 Id. 232 Id. 233 Michael Pugh, Legal Aspects of the Rainbow Warrior Affair, 36 Int’l & Comp. L.Q. 655, 657 (1987). 234 Id. 235 Kenneth W. Abbott & Duncan Snidal, Why States Act Through Formal International Organizations, 42 J. Conflict Resol. 3, 22-23 (1998) (quoting Thomas M. Franck & Georg Nolte, The Good Offices Function of the UN Secretary-General, in United Nations, Divided World: The UN’s Role in International Relations 143, 166 (Adam Roberts & Benedict Kingsbury eds., 2d ed. 1993)).

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Arbitration of this variety would have provided a nonforceful alternative for satisfying Argentina’s need to save face and Britain’s need to hold firmly to its mores. At the same time, an arbitration would have left open the possibility that either side could ultimately be validated, creating a “yes-able” solution for both sides. With Perez de Cuellar as the designated arbiter, for instance, both Britain and Argentina could have envisioned themselves, from their April perspectives, as the party most likely to prevail on the merits. In sum, while the United States ought to have decisively pressured Argentina to withdraw, rather than attempt mediation, this approach could only have been successful in tandem with an offer of some other nonforceful alternative. The United States could have effectively deployed its war-stopping skills in April by convincing the junta that by accepting the arbitration alternative, it could more productively achieve its aims. Such a combination technique would have given the junta incentive to withdraw and an honorable justification for doing so.

Chapter 2 Nagorno Karabakh: A War without Peace Nicholas W. Miller

I. Introduction Between 1991 and 1994, Nagorno Karabakh, a small enclave within the Republic of Azerbaijan, was the scene of one of the bloodiest of the conflicts to erupt following the dissolution of the Soviet Union. Since 1994, Armenians and Azerbaijanis have remained in a constant state of armed hostility. Soldiers now face each other across a no-man’s land watched over by snipers, heavy artillery, and tanks. In the seventeen years since hostilities began, the international community and some of the world’s most powerful states have tried and failed to find a resolution for a conflict that has displaced over a million people, has created economic hardship for millions more, and continues to cause instability in the strategically important Caucasus region. This chapter examines how the international community failed first to stop the fighting between Armenians and Azerbaijanis and has since failed to make peace between them. II. Background The Caucasus is a region between the Black and Caspian Seas that forms a land bridge between the steppes to the north and Anatolia, Persia, and Mesopotamia to the south. Geography gives the Caucasus an importance out of keeping with its small size, transforming it into a gateway through which peoples, traders, and armies without number have passed. The Armenians trace their arrival in the Caucasus and eastern Anatolia to the sixth century B.C. The ancestors of the Azerbaijanis arrived 

 

Estimates of the number of refugees vary. The International Crisis Group puts the number of displaced Armenians at over 400,000 and the number of displaced Azerbaijanis above 700,000. International Crisis Group, Europe Report No. 187, Nagorno Karabakh: Risking War 1 n.2 (2007). The geopolitical label “Caucasus” is used in this chapter to refer to the region encompassing Armenia, Azerbaijan, and Georgia, an area that is sometimes known as the South Caucasus, Transcaucasus, or Trancaucasia. Michael Croissant, The Armenia-Azerbaijan Conflict: Causes and Implications 4 (1998). For a more detailed account of the debates surrounding the origin of the Armenian people and their arrival in the region, see Stephan H. Astourian, In Search of Their Forefathers: National Identity and the Historiography and

K. Eichensehr and W.M. Reisman (eds.) Stopping Wars and Making Peace: Studies in International Intervention ©  2009 Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17855 7. pp. 43-75.

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in the Caucasus in the great Turkic migrations from Central Asia sometime before the eleventh century. Today, the Armenians and Azerbaijanis are the titular majorities in two of the three internationally recognized states in the Caucasus. Nagorno Karabakh is a territory of 4,800 square kilometers within the borders of Azerbaijan. It lies on the eastern edge of the Armenian Plateau and is well watered, forested, and mountainous. The land falls off from the west to east and overlooks the hotter and dryer plains of Azerbaijan to the east, stretching away to the Caspian Sea. To the west, high mountains separate Nagorno Karabakh from the Republic of Armenia. Nagorno Karabakh is also divided from Armenia by political geography, lying entirely within the borders of the Republic of Azerbaijan and separated from Armenia by the Azerbaijani districts of Kelbajar and Lachin. III. The History of Nagorno Karabakh The first conclusive evidence of Armenian presence in mountainous Karabakh dates to the first century B.C. Armenian control over the area persisted until the late fourth or early fifth century. Relative Armenian autonomy remained intact in mountainous Karabakh even under successive rule by Mongols, Arabs, and Persians. By the fourteenth century, mountainous Karabakh lay on the frontier between the Persian Safavid Empire and Turkic kingdoms of Anatolia. During this period, a small number of princely Armenian families began to consolidate power in Karabakh. For centuries, these princes, known as meliks, exercised significant autonomy. Armenians credit the meliks with keeping alive their national traditions. By the middle of the eighteenth century, however, the princely families had entered a period of decline.10 In 1747, following the assassination of the shah, Persian rule collapsed in the Caucasus. Small khanates, ruled by Muslim Azeri-speaking families, established themselves in the power vacuum.11 Panakh Khan, leader of the Javanshir dynasty, set Politics of Armenian and Azerbaijani Ethnogenesis, in, Nationalism and History: The Politics of Nation Building in Post-Soviet Armenia, Azerbaijan and Georgia (David Schwartz & Razmik Panossian eds., 1996).  Christopher Walker, Armenia and Karabagh: The Struggle for Unity 74 (1991).  Croissant, supra note 3, at 10.  I will refer to mountainous Karabakh to distinguish the historic region from the larger and variable Karabakh and from the modern Nagorno Karabakh, the borders of which were defined by the Soviets.  Svante Cornell, Small Nations and Great Powers: A Study of Ethnopolitical Conflict in the Caucasus 62 (2001).  Walker, supra note 4.  Thomas de Waal, Black Garden: Armenia and Azerbaijan Through Peace and War 146 (2003). For a more extensive discussion of the meliks, their autonomy, and their territories, see Christopher J. Walker, The Armenian Presence in Nagorno Karabagh, in Transcaucasian Boundaries 89, 92-96 (John F.R. Wright, Suzanne Goldenberg & Richard Schofield eds., 1996). 10 Walker, supra note 9, at 96. 11 Cornell, supra note 7, at 67.

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out to gain permanent control over mountainous Karabakh. He allied himself with one of the remaining melik families and built his fortress capital at Shusha in the heart of present-day Nagorno Karabakh.12 By 1760, a truce between the remaining Armenian nobility and Panakh recognized Panakh’s dominion over the Karabakh Khanate, encompassing the entire region of mountainous Karabakh.13 A. The Russian Empire Russia established a foothold in the Caucasus in 1783 when the Christian king of Georgia voluntarily placed his kingdom under Russian protection in order to prevent Ottoman conquest.14 In 1801, Russia formally annexed Georgia. Shortly thereafter, Russia extended its control into the area controlled by the Turkic khanates, and, by 1805, Russia had conquered the khanates of Karabakh.15 Much of Russia’s success resulted from her policy of co-opting local elites.16 The Armenians played “a crucial role throughout the entire period of Russian rule in the Caucasus, being loyal allies and occupying important positions in the administration.”17 Because Armenians were seen as more reliable allies than their Muslim neighbors, Russia encouraged Armenian immigration and Muslim emigration. Over time, Russian rule strengthened administrative and economic ties between mountainous Karabakh and the plains to the east.18 A transportation network developed to supply Baku, the largest city in the region, with food and raw materials. By the late nineteenth century, the area around Baku produced half of the world’s oil. The wealth and influx of people from Europe and Asia made Baku a cosmopolitan city.19 Large numbers of Armenians migrated to the city where many of them, aided by Russian favoritism, secured managerial, entrepreneurial, and industrial jobs. The success of Armenians in Baku and other cities contrasted sharply with the poverty of most Azeris20 and fomented hostility between the two communities.21 Ethnic and class distinctions became conflated as Armenian wealth grew22 and Ottoman persecution of their ethnic kin increased anti-Turkish feelings among 12 De Waal, supra note 9, at 188. 13 Walker, supra note 9, at 96. 14 Margot Light, Russia and Transcaucasia, in Transcaucasian Boundaries, supra note 9, 34, 35-36. 15 Cornell, supra note 7, at 35. 16 Id. at 34-35. 17 Id. at 35. 18 Walker, supra note 9, at 97; see Croissant, supra note 3, at 12. 19 De Waal, supra note 9, at 98-99. 20 Croissant, supra note 3, at 8. 21 Terry Adams, South Caspian Oil and Gas; A Problem or a Solution? in Promoting Institutional Responses to the Challenges in the Caucasus: The OSCE, UN, EU and the CIS: Analyses—Case Studies—Outlooks 47, 47 (International Peace Academy, July 2001). 22 It is worth noting, however, that a large segment of the Armenian population remained rural and that economic modernization benefited primarily those who had migrated to large cities such as Baku, Ganja, and Tbilisi.

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Armenians, who began to equate the Turkic Azeris with the Turks. Pan-Turkism, which emphasized the historic, ethnic, and linguistic links among Turkic peoples, began to spread among Azeris. Pan-Turkism encouraged and fed upon Azeri enmity for the Armenians.23 In January 1905, the first Russian Revolution triggered unrest in the Caucasus. In early February, fighting between Armenians and Azeris broke out in Baku, and hundreds died.24 In August, an Armenian nationalist manifesto calling for the expulsion of Turkic and Persian people from “the holy place of Armenia” contributed to an outbreak of violence that left hundreds of Azeris dead in Shusha.25 Neighboring villages battled one another, and sources suggest that several hundred Armenian and Azeri villages were destroyed.26 Word of this violence sparked renewed fighting in Baku, where approximately 1,500 people died and Armenian-owned industries and oil wells were attacked.27 In a single week, 1,026 of the 1,609 oil wells in the Baku region were destroyed. Bloodshed continued until order was restored in late 1906 and 1907. The communal violence between 1905 and 1907 has been called the TatarArmenian War,28 but a more appropriate name would be the Azeri-Armenian war because of the important role the fighting played in the formation of Azeri national identity. Organized violence accelerated the formation of a sense of common interest among Azeris, helping to replace a tradition of localism with national selfawareness. The Armenians too were affected by the violence of the period. Hostility toward the Turks and Azeris and a sense of collective vulnerability bolstered the Dashnaktsuntiun (Armenian Revolutionary Federation), which sought Armenian autonomy in areas perceived as historically Armenian.29 Mountainous Karabakh was one such area. B. World War I and Caucasian Independence Following the October Revolution, Russian forces withdrew from the Caucasus.30 A Federation of the Caucasus was formed in April 1918 but dissolved in the face of an Ottoman invasion less than two months later.31 In its place, the independent states of Armenia, Georgia, and Azerbaijan emerged. Azerbaijan allied itself with the Ottomans. Ottoman military superiority forced Georgia and Armenia to accept Ottoman terms, although Armenian guerrillas continued to resist. Both sides com23 Croissant, supra note 3, at 8. 24 The number of dead is, like so much else, disputed. Croissant puts the number in this initial outbreak of violence at six hundred Azerbaijanis and nine hundred Armenians. Croissant, supra note 3, at 9. 25 Cornell, supra note 7, at 69. 26 Id. 27 Croissant, supra note 3, at 9. 28 De Waal, supra note 9, at 99. 29 Croissant, supra note 3, at 9-10. 30 Id. at 13-14. 31 Cornell, supra note 7, at 70-71.

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mitted atrocities reminiscent of the violence of the first Russian Revolution. In March 1918, the Baku Armenians and Bolsheviks brutally crushed an Azeri uprising and massacred thousands.32 In the fall of the same year, Azeris captured the city and took their revenge. All told, twenty thousand people may have died in Baku, and many more perished elsewhere.33 Defeat by the Allies forced the Ottomans to withdraw from the Caucasus and left Georgia, Azerbaijan, and Armenia fighting for territory in anticipation of the Paris Peace Conference.34 Karabakh Armenians, unable to secure much help from hard-pressed Armenia, accepted what they hoped would be temporary Azerbaijani sovereignty.35 In late 1919, however, they launched a major revolt against Azerbaijani control.36 In April 1920, with the Azerbaijani army deployed in Karabakh to combat the uprising, the Red Army marched into Baku.37 Azerbaijan became the first Caucasian state to succumb to Soviet power. Georgia and Armenia followed within a year. IV. A Century of Conflict Any number of starting dates could be given for the modern conflict over Nagorno Karabakh, but, in retrospect, the intercommunal violence of 1905-1906 seems an obvious candidate. The violence of World War I and the brief period of independence for the Caucasian republics is another. The conflict would not have taken its modern form, however, were it not for the events of the Soviet period and, in particular, the fateful decision of the Soviet Caucasus Bureau and Josef Stalin to give control over mountainous Karabakh to the Soviet Socialist Republic of Azerbaijan. While Soviet power continued to hold sway in the region, the conflict over Karabakh lay dormant but did not die. The decline of Soviet power brought with it a reemergence of violence reminiscent of the warfare between the Caucasian republics almost a century before. A. The Soviet Period In 1921, the Soviet Caucasian Bureau voted to transfer Karabakh to Armenia. By 1930, Nagorno Karabakh’s modern boundaries had been established.38 During Stalin’s life, protests over Nagorno Karabakh were suppressed.39 The issue resurfaced under the more tolerant leadership of Khrushchev. In 1964, 2,500 Karabakh Armenians submitted a petition to Moscow that complained of the “chauvinistic, pan-Turkic” 32 33 34 35 36 37 38 39

De Waal, supra note 9, at 100. Id. Cornell, supra note 7, at 72. Croissant, supra note 3, at 16-17. Id. at 17. Cornell, supra note 7, at 73. Id. In the 1930s, the leader of Soviet Armenia raised the question of Nagorno Karabakh and was shortly thereafter assassinated. It remains unclear whether he was killed because of the Karabakh issue or for unrelated reasons. Id. at 77.

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policies of the Azerbaijani government and requested incorporation into Armenia.40 After the 1979 census revealed that the Armenian portion of the population in the Nagorno Karabakh Autonomous Oblast (NKAO) had declined from 91 percent in 1939 to 79 percent, Armenians accused Azerbaijan of deliberate attempts to alter the region’s demography.41 The leadership of the Armenian Soviet Socialist Republic began regularly to raise the Nagorno Karabakh issue with the Soviet leadership. In the wake of Glasnost, prounification demonstrations became frequent in Yerevan and the NKAO.42 The end of 1987 marked a turning point. When Armenians living in the village of Chardakli in Azerbaijan opposed the nomination of an Azerbaijani for a local Communist Party position, the party sent thugs to cow them into submission, and numerous people were injured. News of this reached Yerevan while demonstrators were gathered to protest environmental degradation.43 The event quickly turned into a large-scale nationalist demonstration. Local police broke up the gathering, but in its aftermath Azeris living in Armenia began to face harassment. By January 1988, Azeri refugees began to arrive in Baku. On February 20, the Soviet of People’s Deputies of Nagorno Karabakh took an unprecedented step by voting 110 to seventeen to formally request transfer to Armenia.44 The Soviet Central Committee denied the request three days later.45 B. The Road to War Nagorno Karabakh’s request and its denial sparked demonstrations in Armenia and Azerbaijan. On February 26, 1988, a crowd of Azerbaijanis gathered in Sumgait, an industrial suburb of Baku, to demand revenge for the deaths of two Azerbaijanis in clashes in Nagorno Karabakh.46 Accounts of what happened over the next week vary, but by February 27 Azerbaijani refugees had joined the crowd, and violence broke out. Crowds searched the city for Armenians, at times attacking with axes and setting people on fire.47 On February 28, Soviet officials ordered troops to the city, but violence continued for another day.48 The official death toll from the three days of violence was thirty-two, but Armenian estimates put the number at ten times that.49 The Sumgait Pogrom, as it came to be called by Armenians, triggered a sharp escalation in the conflict.

40 41 42 43 44 45 46 47 48 49

Croissant, supra note 3, at 20; see also Cornell, supra note 7, at 77. Id. at 78. Croissant, supra note 3, at 26. Cornell, supra note 7, at 78-79. Id. at 80. Croissant, supra note 3, at 27. Cornell, supra note 7, at 82. De Waal, supra note 9, at 34-36. Id. at 39. Cornell, supra note 7, at 82; see also De Waal, supra note 9, at 40-41.

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After Sumgait, many of the 350,000 Armenians living in Azerbaijan left for Armenia or Russia.50 By the end of 1988, nearly 200,000 Azerbaijanis had fled Armenia.51 Ethnic cleansing, usually accomplished through threat rather than force, took place with the occasional assistance and organization of officials. At times, population exchange went to such extremes that home swaps were set up and patients in psychological wards were shipped from one republic to the other.52 By the end of 1989, Azerbaijanis and Armenians had been almost completely separated along ethnic lines. Although in 1989 the Soviet government was able to bring four months of relative calm to Nagorno Karabakh by suspending Azerbaijani administration and imposing central control over the region, armed skirmishes between Armenians and Azerbaijanis and attacks on Soviet troops became common by the summer.53 At the same time, nationalist parties formed in both Armenia and Azerbaijan. In June, the Armenian National Movement (ANM) was founded under the leadership of the Karabakh Committee, a group of eleven Armenian intellectuals.54 The ANM encouraged the Armenians of Karabakh to reject central administration and organized the election of a seventy-eight-member National Council for the region. At the same time in Azerbaijan, the Azerbaijan Popular Front (APF) took form. Just as with the ANM, the APF and its leader, Abulfaz Elchibey, gained in popularity by striking a nationalist line on Karabakh. In November 1989, Moscow returned Nagorno Karabakh to Azerbaijani control. In response, the ANM organized a joint session of the Armenian Supreme Soviet and the National Council of Nagorno Karabakh. Together, the two bodies voted to form a “United Armenian Republic” and announced plans for a unified budget.55 Condemnation from Soviet authorities and Azerbaijan came quickly, but Moscow took no action. Azerbaijan responded by organizing a crackdown on Armenian villages in the districts immediately to the north of the NKAO. For the first time in the conflict, Azerbaijani forces used heavy weaponry, including helicopters and armored personnel carriers. Unsatisfied, the APF called for a protest on January 11 in Baku against Moscow, the Azerbaijan Communist Party, and the actions of Nagorno Karabakh and Armenia. On January 13, rallies turned into yet another round of violent pogroms against the remaining Armenians of Baku. Moscow did little to stop the violence but used it as a pretext to send the military into Baku, arrest many of the leaders of the APF, and dispatch troops to Nagorno Karabakh.56 Gorbachev installed Ayaz Mutalibov as the 50 51 52 53 54 55 56

Id. at 84-85. De Waal, supra note 9, at 62. Id.; see also Cornell, supra note 7, at 85. Id. at 86, 89. Croissant, supra note 3, at 29, 33. Id. at 35. Cornell, supra note 7, at 85. For a detailed account of these events, which came to be known as “Black January,” see De Waal, supra note 9, at 89-95. For more on the crackdown on the APF, see Audrey L. Altstadt, Decolonization in Azerbaijan and the Struggle to Democratize, in Nationalism and History: The Politics of Nation Building

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first secretary of the Azerbaijan Communist Party. The Soviet crackdown prompted the first meeting between ANM and APF representatives, but the meeting produced no agreement.57 In August 1990, the ANM defeated the Armenian Communist Party in elections. Levon Ter-Petrosian, leader of the ANM and a prominent member of the Karabakh Committee, became chairman of the Armenian Supreme Soviet. On August 23, the Armenian Supreme Soviet announced its intention to make Armenia an independent state,58 nullified all non-Armenian laws within the territory of Armenia, and renamed the Armenian Soviet Socialist Republic the Armenian Republic. In the spring of 1991, Moscow and Azerbaijan began a joint operation known as Operation Ring in the Khanlar and Shaumian districts of Azerbaijan. Armored vehicles encircled Armenian villages, and troops from the Azerbaijani militia entered purportedly to search for Armenian paramilitary fighters and weaponry.59 In fact, the operation resulted in the clearing of twenty-four Armenian villages. Villagers and paramilitaries resisted, and by June the number killed approached eight hundred.60 Operation Ring convinced many Armenians that only military force could protect the Armenians of Nagorno Karabakh, and the Armenian government threatened to use whatever means necessary to stop the deportations. The stage was set for a major escalation. C. Collapse of Soviet Power and the Period of Open Warfare The August 1991 coup attempt against Soviet President Gorbachev transformed the conflict into a full-scale war between two internationally recognized states. Immediately after the coup, Ayaz Mutalibov, chairman of the Communist Party of Azerbaijan, expressed support for Gorbachev’s opponents.61 The coup collapsed on August 21, but on August 23 Mutalibov used demonstrations celebrating the coup’s failure as an excuse to crack down on the opposition APF. Azerbaijan declared its independence on August 30, before either Armenia or Nagorno Karabakh. On September 8, Mutalibov was elected president of the newly independent Republic of Azerbaijan. On September 2, 1991, the Karabakh National Council proclaimed an independent Republic of Nagorno Karabakh. This broke with past declarations of unification with Armenia, but the move appears not to have been indicative of disagreement

57 58

59 60 61

in Post-Soviet Armenia, Azerbaijan and Georgia 103 (David Schwartz & Razmik Panossian eds., 1996). Cornell, supra note 7, at 89-90; see also Michael Dobbs, Warring Soviet Groups Set Agenda for Talks: Armenians, Azerbaijanis to Meet in Latvia, Wash. Post, Jan. 30, 1990, at A15. This move followed the procedures established by Soviet law for the secession of a Soviet Republic, which required six months’ notification. See Fred Hiatt, Armenia, Azerbaijan Agree to Cease-Fire; Yeltsin, Kazakhstan President Broker Initial Accord over Disputed Nagorno-Karabakh, Wash. Post, Sept. 25, 1991, at A20. De Waal, supra note 9, at 113-24. Cornell, supra note 7, at 90-91. De Waal, supra note 9, at 160.

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with Yerevan, but rather a calculated attempt to lessen the diplomatic fallout for the Republic of Armenia,62 which itself declared independence three weeks later following a referendum in which 99.3 percent of voters supported secession.63 Throughout the fall, heavy fighting, previously concentrated in the districts to the north of the NKAO, began to shift to Nagorno Karabakh itself. On December 23, 1991, Soviet forces began withdrawing from Nagorno Karabakh. Their withdrawal removed one of the last restraints on Armenian and Azerbaijani forces in the region. Immediately, both sides launched attacks on key positions. On January 31, Azerbaijani forces based in Agdam, an Azerbaijani city of fifty thousand to the east of Nagorno Karabakh, pushed toward Stepanakert, the Armenian-populated capital of Nagorno Karabakh, and attacked with artillery and missiles. Armenian forces halted the assault and launched a counteroffensive that culminated in the capture of the strategic town of Khojaly.64 The capture of Khojaly was notable for the violence perpetrated against the Azerbaijani civilian population. Official Azerbaijani estimates put the death toll at over six hundred, and the estimates of human rights groups ranged from two hundred to one thousand.65 After this well-documented massacre, Azerbaijani civilian populations routinely fled before advancing Armenian forces, a pattern that contributed to the ethnic cleansing of Nagorno Karabakh and surrounding areas.66 Khojaly destabilized the political situation in Azerbaijan. On May 6, President Mutalibov handed power to a caretaker president, Yaqub Mamedov. Armenian forces capitalized on Azerbaijani political instability. On May 8, they attacked Shusha, the largest and most symbolically important Azerbaijani city in Nagorno Karabakh and the last major area in the region under Azerbaijani control. After less than a day of fighting, Azerbaijani forces and civilians evacuated the city.67 Within two weeks, the Armenians also captured Lachin. The Armenian occupation of Lachin was significant for two reasons: (1) Armenian control of the narrow Lachin Corridor opened a critical transportation link between the Republic of Armenia and Nagorno Karabakh, allowing resupply and reinforcement; and (2) in order to secure this road link, Armenian forces had occupied territory outside of Nagorno Karabakh for the first time. On June 7, Abulfaz Elchibey of the APF was elected president of Azerbaijan. An ardent nationalist, Elchibey ordered a large-scale offensive against the northern and central Nagorno Karabakh districts of Martakert and Askeran. The size and determination of the offensive, which began on June 12, took Armenian defenders by sur62 Cornell, supra note 7, at 92. 63 Croissant, supra note 3, at 43. Armenia and Nagorno Karabakh now maintain that the region is an independent party to the conflict, although subsequent events and the current relationship between the two belie this claim. See Helsinki Watch, Bloodshed in the Caucasus: Escalation of the Armed Conflict in Nagorno Karabakh 1 (Sept. 1992), available at http://www.hrw.org/reports/pdfs/g/georgia/georgia.923/georgia923full.pdf. 64 Croissant, supra note 3, at 78. 65 Cornell, supra note 7, at 96. 66 Id. 67 De Waal, supra note 9, at 176-81.

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prise. Rapid advances left most of northern Nagorno Karabakh in Azerbaijani hands for the first time since the militarization of the conflict. The reversal of Azerbaijan’s military fortunes probably resulted from the transfer to Azerbaijan of large numbers of Russian weapons, including around a hundred tanks and several dozen warplanes, in the days leading up to the offensive.68 The transfer gave Azerbaijan a temporary military superiority that made an offensive possible. By September, however, the frontlines had stabilized. The situation changed in the winter of 1993, when political instability once again hampered Azerbaijani military efforts. Colonel Surat Husseinov, an industrialist who had helped to equip Azerbaijani forces with his own fortune, commanded in northern Nagorno Karabakh.69 By 1993, however, the Elchibey government had come to suspect Husseinov of disloyalty. In February, the Armenians launched a counteroffensive in Nagorno Karabakh and neighboring Kelbajar Province. The Azerbaijani army stopped the Armenian advance in Nagorno Karabakh itself, but Husseinov made little effort to defend neighboring Kelbajar.70 Elchibey dismissed Husseinov. Rather than step down, Husseinov ordered his troops to withdraw from Nagorno Karabakh to his political power base in Ganja, setting the stage for more political instability in Azerbaijan.71 In March and April, Armenian forces completed their conquest of Kelbajar and went on the offensive in the Fizuli district to the southeast of Karabakh. The move toward Fizuli brought Armenian forces within twenty miles of the Iranian frontier and created concern in Tehran that refugees would begin crossing its borders.72 At the same time, Turkey tightened its economic blockade on Armenia and threatened military action if the advance continued. In response, Russia deployed units to the Turkish-Armenian border.73 The tensions and growing numbers of refugees prompted the UN Security Council to pass Resolution 822 in April 1993. The resolution called for a withdrawal of “occupying forces” from Kelbajar and other “recently occupied areas of Azerbaijan.”74 In May 1993, Russian forces began withdrawing from Soviet bases in Azerbaijan. On June 4, Azerbaijani government forces and units under the command of Husseinov clashed when the latter tried to seize equipment left behind by the Russians.75 Husseinov and his supporters then seized Ganja and marched on Baku. 68 69 70 71 72 73 74 75

Croissant, supra note 3, at 84. Id. at 89. Cornell, supra note 7, at 98. For an account of the events immediately prior to Husseinov’s withdrawal from the front, see De Waal, supra note 9, at 211. Croissant, supra note 3, at 88. Id. at 87-88. S.C. Res. 822, UN Doc. S/RES/822 (Apr. 30, 1993), available at http://www.state.gov/ p/eur/rls/or/13508.htm#822. One view of these events posits that Husseinov was supported by the Russians and that the weapons were left to strengthen him. See Altstadt, supra note 56, at 114-15. This view appears more likely given the fact that as part of his anti-Russian orientation, Elchibey was preparing to sign a major oil deal with Western companies. Croissant, supra note 3, at 89-90.

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President Elchibey summoned Heidar Aliev, former chairman of the Azerbaijani Communist Party, former member of the Politburo, and one of Azerbaijan’s most popular politicians. Aliev and Elchibey entered a power-sharing agreement, and Aliev was elected chairman of the Azerbaijani Supreme Soviet. When this failed to stop Husseinov’s advance on Baku, Elchibey fled Baku, leaving Aliev as acting president on June 19. Aliev and Husseinov then negotiated a power-sharing agreement, with Husseinov becoming prime minister and head of military and internal security and Aliev retaining the presidency.76 A month after Aliev took power the Armenians again went on the offensive in northern Nagorno Karabakh and recaptured key cities. Azerbaijani weakness encouraged the Armenians to attack a new target: Agdam, the largest city in the vicinity of Nagorno Karabakh. After a siege, the city fell on the July 21. Armenians soldiers looted and burned the city and expelled the civilian population. At the same time, Armenian forces began a blitz through southwest Azerbaijan. The disorder among Azerbaijani defenders was so great that one Western diplomat in Baku said, “I wouldn’t describe the Armenian operations as an invasion. It’s more like armed tourism. The Azeri government is a shambles and can offer virtually no resistance.”77 By late October, Armenian forces had reached the Iranian frontier and cut the southwest corner of Azerbaijan off from the rest of the country. Azerbaijani soldiers and civilians fled across the border. By the end of the offensive, 500,000 Azerbaijanis had fled their homes.78 In December 1993, Azerbaijan launched its last major counteroffensive of the war. Much to the surprise of military observers, Azerbaijan made important advances, perhaps due to the significant efforts by President Aliev to reorganize the military command structure and to renewed support by Turkish and Russian military advisors, both of which returned to the country in the fall of 1993.79 Despite its early victories, by February Aliev’s offensive had bogged down. The military had suffered heavy losses due in part to the use of human wave assaults against fortified Armenian positions.80 By late February, the tide had turned, and Armenian forces were once again advancing. On February 26, a cease-fire brokered by the Russians temporarily halted violence, but heavy fighting resumed in April. An Armenian offensive to the northeast of Nagorno Karabakh created an additional 50,000 refugees. By May 16, however, the Armenian offensive had stalled, and on that day, Russian Defense Minister Pavel Grachev announced a new cease-fire.81 The May 16 cease-fire has held ever since.

76 Id. For a discussion of the roles of Turkey and Russia in backing the coup in Azerbaijan, see Cornell, supra note 7, at 100-02. 77 Quoted in Cornell, supra note 7, at 104. 78 Id. at 106. 79 Croissant, supra note 3, at 96-97. 80 Id. at 96. 81 Cornell, supra note 7, at 106.

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Armenian forces had achieved remarkable successes. At the time of the ceasefire, Armenians controlled approximately 14 percent of Azerbaijan.82 This included all but a small sliver of Nagorno Karabakh itself and swaths of Azerbaijani territory to the west, south, and east of the region. Importantly, the cease-fire left the Armenians with a defensible, well-fortified, and relatively short frontline.83 Resupply and reinforcement from Armenia was available through the occupied districts of Lachin and Kelbajar. All of the occupied territory had been cleansed of its Azerbaijani population, freeing the Armenians from the need to police and provide for a hostile population. V. Failed War-Stopping (1991-1994) Prior to 1991, the Nagorno Karabakh conflict was a Soviet domestic matter. After Armenia and Azerbaijan declared independence, the conflict assumed an international character. Unsurprisingly, however, actors from within the former USSR made the first effort at mediation, reflecting their greater knowledge and involvement in the area. Russia, as the primary heir to Soviet interests in the Caucasus, had retained a key role in efforts to resolve the conflict. Before long, however, the conflict drew the attention of Turkey and Iran, both countries with strong historical connections to the Caucasus. In 1992, the greater international community, represented by the Conference on Security and Cooperation in Europe (CSCE), launched its own mediation efforts. To this day, the CSCE, renamed the Organization for Security and Cooperation in Europe (OSCE) in 1995, and Russia remain central to efforts to resolve the Nagorno Karabakh conflict. Unfortunately, all resolution efforts have failed. This section will examine in turn each of the major war-stopping and peacemaking efforts. A. Yeltsin-Nazarbayev Mediation (1991) The first major mediation effort following the internationalization of the Nagorno Karabakh conflict occurred under the aegis of Russian President Boris Yeltsin and Kazakh President Nursultan Nazarbayev. From September 20, 1991, they conducted shuttle diplomacy between Armenia, Azerbaijan, and Nagorno Karabakh. Taking Azerbaijan’s territorial integrity as their starting point, they achieved a breakthrough on September 22 when Armenia, a day before formally declaring independence from the Soviet Union, renounced any claim to Azerbaijani territory.84 The breakthrough permitted the parties to agree the next day to a joint communiqué committing the two republics and Nagorno Karabakh to disarm and withdraw militias from the conflict zone, permit refugees to return, restore the Soviet-era administrative structure of the Nagorno Karabakh region, and appoint delegations to discuss a permanent 82 De Waal, supra note 9, at 285-86. 83 David Simonyan, Surrender of Territories to Azerbaijan: Strategic Consequences for Armenia and Nagorno-Karabakh, Regnum, July 27, 2006, available at http://www. regnum.ru/english/679147.html. 84 Bill Keller, Armenia Yielding Claim on Enclave, N.Y. Times, Sept. 23, 1991, at A12.

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solution for the dispute. Soviet army and interior ministry troops would remain in the area, and Russian and Kazakhstani officials would supervise the process. On September 25, the parties signed a cease-fire amid reports of ongoing battles on the front.85 When Azerbaijani and Armenian leaders met for follow-up talks on October 25, fighting had intensified. The talks produced little more than an agreement to continue talking. The final blow to the Yeltsin-Nazarbayev peace effort came on November 20 when an Azerbaijani helicopter on the way to the peace talks was shot down while carrying Russian and Kazakhstani observers and the Azerbaijani interior minister and the deputy prime minister.86 Popular demands that the Azerbaijani government respond led to a blockade of Armenia and Nagorno Karabakh. On November 27, the Azerbaijani Supreme Soviet, in a symbolically important move, nullified the autonomy of Nagorno Karabakh. By December, Azerbaijan had begun mobilizing for war by nationalizing military hardware and recalling Azerbaijani conscripts from the Soviet army.87 The failure of the Yeltsin-Nazarbayev mediation effort, in retrospect, appears unavoidable and overdetermined. Two factors in particular contributed to the failure: (1) all sides lacked centralized control over the military units on the frontlines; and (2) even had they held command authority, it is questionable whether Armenian and Azerbaijani leaders were committed to ending the conflict at this early stage. In the early days of the war, while Soviet forces and Azerbaijani militia carried out some operations, like Operation Ring, much of the fighting was local. Often neighboring Azerbaijani and Armenian villages attacked one another with hunting rifles. Even more organized fighting units were largely composed of volunteers only loosely subordinated to centralized military command.88 As a result, it is unlikely that the authorities on either side could have instituted the cease-fire communiqué even had it been their wish to do so. Whether or not the authorities on either side of the conflict truly wished to achieve a cease-fire at this time is also open to question. Armenia and Nagorno Karabakh had long since declared their intention to unite as a single state, and Armenia’s renunciation of this goal in September 1991 was surprising. The best explanation lies not in a change of heart, but in a pragmatic, strategic choice made by the Armenian leadership.89 At the time, Armenia needed international recognition and support, particularly from Russia. Publicly renouncing claims to Karabakh and participating in the Russian-led peacekeeping efforts allowed Armenia to curry 85 86 87 88 89

Hiatt, supra note 58. Croissant, supra note 3, at 45. Cornell, supra note 7, at 91. Id.; see also De Waal, supra note 9, at 206-10. It is also worth noting that the Armenian leadership was not always united on the desirability of peace. Yerevan and Stepanakert, while closely allied, were still capable of independent decision making. Likewise, at various times in the war, Armenian leaders demonstrated a willingness and capacity to act outside of formal command structures. Vazgen Manukian, appointed Armenian defense minister in 1992, has acknowledged deliberately ordering Armenian military units into action without informing President Ter-Petrosian. De Waal, supra note 9, at 210.

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favor with Russia and take advantage of the international goodwill felt for the newly independent post-Soviet republics. The change also allowed the Armenians to deny responsibility for the actions of Armenians in Karabakh without actually cutting off support for their cause. On the Azerbaijani side, President Mutalibov’s domestic political concerns made compromise with the Armenians difficult. Mutalibov owed his position to appointment by Gorbachev and, at a time of intense anti-Russian feeling as a result of the events of Black January,90 he needed to publically distance himself from the Russians and provide bona fides of his Azerbaijani nationalism. This was especially true given the growing popularity of the nationalist and prowar APF. Mutalibov could accomplish both goals by pursuing a military solution to the Nagorno Karabakh conflict. The interests of key parties do not appear to have favored peace, and the actors with the ability to stop the fighting—the commanders in the field—do not appear to have been involved in the war-stopping process. Both of these conditions remained an impediment to peace throughout much of the conflict. B. Turkish and Iranian Mediation Efforts (1992) After the failure of the Yeltsin-Nazarbayev peace mission, two countries with old ties to the Caucasus tried their hands at mediation. The first was Turkey. Turkey’s history with Armenia and instinctive closeness to Azerbaijan were bound to hinder Turkey’s efforts.91 Nevertheless, at the outset of the conflict, Turkey maintained formal neutrality under the cautious leadership of veteran politician Suleyman Demirel, who became prime minister on October 21, 1991. Turkish diplomats conducted several rounds of shuttle diplomacy between Armenia and Azerbaijan in late 1991 and early 1992. They also encouraged Western states and the CSCE to take an interest in the conflict.92 Turkey’s neutrality was not popular at home, and after the Khojaly massacres, large street demonstrations against Armenia occurred in major Turkish cities. Hundreds of thousands of demonstrators called for military intervention on the side of Azerbaijan. The press and political parties across the ideological spectrum called for unambiguous support of Azerbaijan, including deployment of the Turkish military to the Armenian border. The president of Turkey, Turgut Ozal, publicly warned the Armenians that they should fear the consequence of their actions in Azerbaijan. By March, Demirel’s government began to abandon neutrality, and its mediation efforts were effectively over.93 Turkey’s failure opened an opportunity for Iran to gain influence in the Caucasus. That opportunity came when Armenia and Azerbaijan requested Iranian 90 See supra note 56. 91 Turkey’s shares ethnic and linguistic roots with Azerbaijan and views Azerbaijan as a key ally in its effort to extend its influence in the Turkic-language-speaking Central Asian republics. 92 Svante Cornell, Turkey and the Conflict in Nagorno-Karabakh: A Delicate Balance, 34 Middle East Stud. 51, 61 (1998). 93 Croissant, supra note 3, at 81.

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mediation in February 1992. Iran sent its foreign minister to Baku, Yerevan, and Stepanakert,94 and Iranian persistence yielded meetings between representatives of Armenia and Azerbaijan from March 14 to 16. The parties agreed to a cease-fire and a draft peace plan. Unlike two previous Iranian-arranged cease-fires, this one held for a week but broke down when Azerbaijani forces based in Shusha began artillery attacks on Stepanakert. Iran tried again. Armenian President Ter-Petrosian and acting Azerbaijani President Mamedov95 met in Tehran for talks. On May 9, the two men signed a communiqué containing, once again, general principles for a cease-fire and political settlement. Before Mamedov returned to Baku, however, news arrived of the fall of Shusha. This proved a mortal blow to Iranian-led peace efforts and an embarrassment to Iran and Ter-Petrosian.96 The Azerbaijani election of radically pro-Turkish and anti-Iranian President Elchibey in June made Iran unacceptable to Azerbaijan as a mediator.97 Iran has since supported Armenia, most notably by helping Armenia circumvent the Turkish-Azerbaijani economic embargo.98 Turkey and Iran failed to resolve the conflict because both states became unacceptable as mediators to one of the conflict parties and for reasons similar to those that doomed the Yeltsin-Nazarbayev mediation effort. In the case of Turkey, a long history of ethnic identification with Azerbaijan and conflict with Armenia made Turkey an unlikely mediator from the start. Only Prime Minister Demirel’s caution forestalled a predictable Turkish alignment with Azerbaijani interests. For Iran, a neutral stance came more naturally than for Turkey. Iran’s initial failure to resolve the conflict stems from the fact that neither side was uniformly convinced that it was in their interests to stop fighting in the spring of 1992. At that time, key leaders on both sides seem to have thought military victory possible and to have believed that war was in their political interests. Evidence for this can be found in occurrences on the ground: the March cease-fire broke down when Azerbaijan recommenced missile and artillery attacks on Stepanakert, and the agreement signed by Ter-Petrosian and Mamedov was stillborn as a result of the Armenian assault and conquest of Shusha. In neither case is it clear at what level the decision to attack was made, but, in the latter, the awkwardness of the timing makes it appar94 Wendy Betts, Third Party Mediation: An Obstacle to Peace in Nagorno Karabakh, SAIS Rev., Summer-Fall 1991, at 168. 95 Mutalibov was forced to resign following the Khojaly massacre, and the parliamentary speaker, Yaqub Mamedov, had taken interim control until elections could be held on June 7. 96 De Waal, supra note 9, at 180. De Waal notes that in an interview, Ter-Petrosian’s security advisor of the time, Ashot Manucharian, expressed the view that the timing of the attack was deliberately planned by Karabakhi leaders to foil the talks and embarrass Ter-Petrosian. See id. at 180 and n.46. 97 Cornell, supra note 7, at 324. Elchibey particularly damaged relations by suggesting that Azerbaijan had revanchist aims for the territories inhabited by Iran’s fifteen million-strong Azeri population. Relations remained tense with the Aliev administration. In 1995, Azerbaijan excluded Iran from development of oil in the Baku region in response to U.S. pressure to do so. Shortly thereafter, Iran agreed to a twentyyear deal to supply Armenia with electricity and natural gas and cut off natural gas to Nakhichevan. 98 Id. at 327-30.

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ent that Ter-Petrosian was not in complete control of Armenian forces in Nagorno Karabakh.99 As was the case with the failed Yeltsin-Nazarbayev mediation, the parties had not come to the negotiating table with either a consensus that peace was in their interests or a government strong enough to prevent independent actors from sabotaging negotiations. A second possible explanation, however, is that both the Armenians and the Azerbaijanis were using the cease-fires to resupply and regroup. By the spring of 1992, Armenian and Azerbaijani forces had become more organized, making it possible for military commanders (if not the governments) to observe a cease-fire. This explanation does not conflict with the first, but it may explain why the Iranian-initiated March cease-fire held for over a week, a feat that the YeltsinNazarbayev mediations were unable to achieve. C. CSCE/OSCE Mediation Efforts Begin (1992) In a January 1992 meeting in Prague, the CSCE admitted Armenia and Azerbaijan as members. After the British delegate to the meeting suggested that something be done about the war between two of the CSCE’s new members, the CSCE dispatched a fact-finding mission to the region and scheduled a peace conference in Minsk for later that year. A committee of eleven member states, including a number of large states like Russia, Turkey, and the United States, was formed to oversee the conference and manage the CSCE’s efforts to resolve the conflict. The committee, which became known as the Minsk Group,100 held preliminary talks in Rome. The talks broke down over two sticking points: (1) a timetable for discussion of the final status of Nagorno Karabakh and (2) whether to recognize Karabakh Armenians as a separate party to the talks.101 Armenia wanted to discuss status only after deployment of peacekeepers; Azerbaijan thought that the presence of peacekeepers would weaken its sovereignty and so demanded a definition of status before formal talks. This impasse continued throughout the rest of the year as members of the Minsk Group tried repeatedly to organize a peace conference. The parties and participants themselves have criticized the initial CSCE efforts. Some of the criticism stems from the lack of importance put on the negotiating process by the states involved.102 At the December meeting, the Italian chairman of the Minsk Group, Mario Raffaelli, failed to attend, pleading family obligations.103 Azerbaijani presidential foreign policy aid Vafa Guluzade described the ambassador from France as “completely incompetent,” noting that he and others were “taking part there without any knowledge of the region, the core of the conflict, without any 99 100 101 102

Supra note 96. Cornell, supra note 7, at 110-11. Croissant, supra note 3, at 85. John Maresca, Agony of Indifference in Nagorno-Karabakh, Christian Sci. Monitor, June 27, 1994, at 19 (“During my two years as the special United States negotiator seeking a conclusion to the war between Armenians and Azeris over Nagorno-Karabakh, I was struck more than anything else by the West’s resounding indifference to this bloody conflict.”). 103 De Waal, supra note 9, at 229.

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tools of pressure on the parties.”104 In the view of Armenian President Ter-Petrosian, “[t]he OSCE began to take the question seriously only in 1996. Before that, it was simply a bluff, there was absolutely no peace process. The opposite was true. They competed among themselves more than they thought about the Karabakh issue.”105 The size of the Minsk Group also created problems. John Maresca, the U.S. ambassador to the Minsk process, criticized the size of the group: In addition the fact that the Italian Chairman had to have translation into Italian meant that the French and German representatives also insisted on the equal use of their own languages. This made the Minsk Group into an unwieldy and absurdly heavy piece of negotiating machinery, including eleven countries, two non-countries, a Chairmanship plus a secretariat, and five interpreting booths. Concessions involving war and peace, life and death, are not made in such a setting.106

When Sweden took over the chairmanship from Italy in late 1993, Jan Eliasson, the Swedish diplomat who replaced the Italian chairman, made an effort to change the process by emphasizing shuttle diplomacy.107 This had the negative effect of sidelining the larger states such as the United States108 and undercutting the Minsk Group’s collective leverage over the parties.109 Perhaps the most insuperable problem facing the Minsk Group, however, was the unwillingness of both parties to compromise at any one time: We also encountered very serious difficulties. First, the situation on the ground, the military situation, changed rapidly all the time and, as it changed, it would have an effect on the negotiation. Either one side or the other, depending on whether they were up or down militarily, would be in favor of the negotiations or would be more reluctant about the negotiations.110

This dynamic has also been recognized by the participants in the conflict. Arkady Gurkasian, a Karabakh Armenian leader and elected president of the self-declared Nagorno Karabakh Republic from 1997, recalls that in the summer of 1992, “[w]e [the Armenians] were interested in a cease-fire at that point and negotiations were going on at that time. But they behaved provocatively, they basically laid down terms

104 Id. at 230. 105 Id. at 229-30. 106 De Waal, supra note 9, at 229 (quoting John Maresca, Lost Opportunities in Negotiating the Conflict over Nagorno-Karabakh, Int’l Negotiation, Dec. 1996, at 482). 107 De Waal, supra note 9, at 235. 108 Briefing on Nagorno-Karabakh Before the Commission on Security and Cooperation in Europe, July 29, 1994, at 4 (statement of Ambassador John Maresca, former U.S. negotiator in the CSCE for Nagorno-Karabakh). 109 Cornell, supra note 7, at 111. 110 Maresca, supra note 108; see also Maresca, supra note 102.

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for our capitulation. [. . .] They did everything to prevent a cease-fire. And then, when the situation changed, they began to ask for peace.”111 D. Competition between Russia and the CSCE (1992-1994) CSCE mediation efforts faced a new difficulty beginning in September 1992. Russia, which had been fairly disengaged from the conflict resolution efforts since 1991, began to conduct its own unilateral mediation efforts. However, unlike the CSCE, which aimed at a comprehensive resolution to the conflict, Russia limited its efforts to achieving a cease-fire. On September 19, 1992, a cease-fire was signed after Russian Defense Minister Pavel Grachev held intense and secret negotiations between the Armenian and Azerbaijani defense ministers in Moscow.112 The agreement provided for a five-month cease-fire and the phased withdrawal of soldiers from Nagorno Karabakh. As with previous cease-fire agreements, however, the fighting continued and, at the end of 1992, entered one of its most intense periods.113 Despite its initial failure, Russia continued its unilateral mediation efforts, which in 1993 became increasingly competitive with the efforts of the Minsk Group (of which Russia remained a member). Russia’s reason for restarting its unilateral mediation efforts is not a mystery. By late 1992, Russia had begun to recover from the instability that followed the dissolution of the USSR and to focus some of its attention abroad. On February 23, 1993, Russian President Boris Yeltsin stated that the time had come “when responsible international organizations, including the United Nations, should grant Russia special powers as guarantor of peace and stability in the region of the former union.”114 Ambassador Maresca has described Russia’s motivations: At first, Russia fully supported the Minsk Group. But in 1993 Russia reactivated its earlier independent mediation effort, competing with and undercutting the work of the international community. The reason was clear: Russia wished to reestablish its dominance in the region and to exclude outsiders, particularly the US and Turkey. Russia wants to dominate Armenia and Azerbaijan for a number of reasons. Most obviously, Moscow would like to reestablish control of the former Soviet frontier with Turkey and Iran, and to share in Azerbaijan’s oil riches.115

Russian leaders realized that if they could control a peacekeeping force in the Nagorno Karabakh region, they could exert leverage over the parties to the conflict.116 111 Quoted in De Waal, supra note 9, at 228. 112 Human Rights Watch / Helsinki, Azerbaijan: Seven Years of Conflict in Nagorno-Karabakh 82-83 (1994); see also Croissant, supra note 3, at 86. 113 Id. at 86-87. 114 Quoted in De Waal, supra note 9, at 232. 115 Maresca, supra note 102. 116 De Waal, supra note 9, at 232. Russia has used the same strategy in the Abkhazia and South Ossetia.

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Russia preferred an entirely Russian force, but members of the CSCE (which makes its decisions on the basis of consensus) refused to give the organization’s imprimatur to an all-Russian force.117 Turkey and the United States were particularly opposed, unwilling to allow Russia to use the CSCE as a vehicle for its own interests. Russia had offered to provide half the troops for a peacekeeping force, but this option too was rejected by Western countries, which proposed that one-third of the force should be Russian, 17 percent from other Commonwealth of Independent States (CIS) states, and the rest from other members of CSCE. Likewise, Russia and other members of the Minsk Group disagreed over command of the force. Russia claimed priority based on its close connections with the countries of the former Soviet Union, while other members of the CSCE appealed to the UN practice of selecting a commander from a nation other than the one providing the largest troop contingent. Predictably, the conflict over a peacekeeping force encouraged Russia to pursue its aims outside of the CSCE process. In its unilateral mediation efforts, Russia found Armenia to be amenable to a Russian peacekeeping force.118 Russian troops were already stationed on Armenian territory, and Russia and Armenia had developed close ties since 1991.119 Azerbaijan took a different view. Azerbaijani administrations, perhaps remembering the events of Black January, had consistently made the withdrawal of Russian troops a priority.120 Nevertheless, President Elchibey’s ambassador to Moscow, Hikmet Hajizade, was continually pressured to accept the introduction of Russian forces into the conflict zone. In a November 2000 interview, Hajizade stated that, During my term as ambassador, I received three [draft] agreements like this. It began at the end of 1992. So, for example, they said, “Here is an agreement, sign it. The Russians will stand here. The war will stop for a while, negotiations will begin.” And we said, “This could turn into Cyprus.” They said, “Fine, and then Armenian forces will take Kelbajar.”121

In late 1993 and early 1994, Russia again took advantage of Azerbaijan’s military weakness to pressure President Aliev to accept what President Elchibey had refused: Russian peacekeepers, Russian border guards along the Azerbaijani-Iranian frontier, and the basing of a Russian paratroop division on Azerbaijani territory. Eldar Namazov, an advisor to President Aliev, was present when, in early 1994, Russian envoy Vladimir Kazimirov came “to Baku and threatened that if you [President Aliev] don’t allow Russian peacekeeping battalions between the Armenian and 117 Cornell, supra note 7, at 112. 118 See Human Rights Watch / Helsinki, supra note 112, at 84-85. 119 See Cornell, supra note 92, at 58. Russian troops in Armenia were deployed to the Armenian-Turkish border when Turkey moved its troops to the area in order to put pressure on Armenia in the wake of the Armenian conquest of Kelbajar. Croissant, supra note 3, at 87-88. 120 President Aliev, however, used the prospect of Russian military bases in Azerbaijan to win support for the winter offensive of 1993-94. Cornell, supra note 7, at 106. 121 Quoted in De Waal, supra note 9, at 202-03.

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Azerbaijani forces, in a month’s time the Armenians will take Ganje [sic], Terter, Barda, and the railway leading to Georgia.”122 Speaking of Russian efforts to persuade the Azerbaijanis, former U.S. Ambassador Maresca accused the Russians of using “an implicit but dramatic threat: if Azerbaijan does not comply, Russia will step up its backing for Armenia [. . .] with disastrous military results for the Azerbaijanis.”123 E. 1993 CSCE/OSCE Peace Plan On April 30, 1993, the UN Security Council passed Resolution 822, which called for an immediate cease-fire, expressed support for CSCE mediation, and requested the Secretary-General, in consultation with the chairman of the Minsk Group, to submit a report on the conflict.124 Resolution 822 reaffirmed the inviolability of Azerbaijan’s borders but refrained from identifying an aggressor or condemning either side. This allowed all parties to find something to their liking in the resolution.125 Subsequent Security Council resolutions followed the same pattern, effectively delegating conflict resolution to the CSCE. The resolutions were not, however, without effect: following Resolution 822, key members of the Minsk Group renewed their mediation efforts. In April 1993, Russia, Turkey, and the United States put forward a peace plan.126 The plan called for a cease-fire, withdrawal of Armenian troops from Kelbajar and other territories outside Nagorno Karabakh, and negotiation of a comprehensive settlement. In June, Yerevan and Baku accepted the proposal. Stepanakert, under pressure from Armenia and Russia, also agreed despite strong misgivings.127 However, events doomed this agreement as they had previous efforts. The fall of Azerbaijani President Elchibey and the turmoil that followed presented Karabakhi forces with an irresistible military opportunity. In addition to the obvious strategic reasons to abandon the peace talks, Svante Cornell points out that, After having violated a number of the laws of war, carried out ethnic cleansing and massacres on the civilian population, they received no clear-cut condemnation from any significant state or international organization. Quite the opposite, the CSCE was making considerable efforts to bring [the Armenians] to the negotiating table. Thus from their point of view, it must have seemed absolutely safe to start a new 122 Id. at 238. 123 Maresca, supra note 102 at 83. Russia’s chief diplomat in the region, Vladimir Kazimirov, defended Russia’s position and responded directly to Ambassador Maresca: “The publications of the American envoy show that—to all appearances—in Washington’s view the cease-fire did not have value in and of itself but was only one element in a large geostrategic game, aimed at reducing the role of Russia in the Transcaucasus.” De Waal, supra note 9, at 235 (quoting Vladimir Kazimirov, “Karabakh. Kak eto Bylo,” Mezhdurnarodnya Zhizn’ (1999)). 124 S.C. Res. 822, supra note 74. 125 Croissant, supra note 3, at 89. 126 Id. 127 Id.; see also Cornell, supra note 7, at 111.

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offensive, achieve their war aims, and only then agree to sit down at a negotiation table.128

Thus within a month, the CSCE’s peace plan had been eclipsed by fighting. F. Renewed Russian Mediation (Summer 1993) President Aliev took office in June 1993 and immediately faced a critical military situation. Frustrated by the failure of the CSCE and the organization’s apparent inability to put pressure on the Armenians, Aliev turned to Russia. In one of his first acts as president, he offered a significant olive branch to Russia by postponing signature of a major deal with Western oil companies.129 In July 1993, Aliev agreed to negotiate directly with the Karabakh Armenian leadership, with Russia as the sole mediator. Azerbaijan recognized the Karabakh Armenians as an armed party but insisted that it did not extend any political recognition to them or to the Nagorno Karabakh Republic.130 A series of short cease-fires resulted, beginning on July 24 and lasting for much of the following four months. However, the cease-fires applied only within Nagorno Karabakh, and by this point the main fighting had moved to areas outside the region. This Russian success, limited though it was, undermined the parallel efforts of the Minsk Group. Although Aliev sought to improve relations with Russia in order to stem the tide of Armenian victories, he did not accede to all of Russia’s desires. Russia’s primary goals in the region remained the exclusion of other powers and the return of Russian troops to Azerbaijani territory. At a summit in Moscow in October 1993, Russia proposed a communiqué to be signed by all three of the Caucasus republics— Azerbaijan, Georgia, and Armenia. The communiqué would have meant the return of significant Russian forces to Azerbaijan, and Aliev rejected the deal. He feared that deployment of peacekeepers before an Armenian withdrawal would amount to a de facto separation of occupied territories from Azerbaijan. He was also concerned about the leverage that Moscow could exercise over Azerbaijan with Russian troops stationed in the Republic.131 In January, Russian Defense Minister Pavel Grachev tried again to secure basing rights in Azerbaijan. He traveled to the Caucasus with a specific proposal to station 23,000 Russian troops in five bases in the three Caucasus states. Rather than agree, Aliev moved to repair Azerbaijan’s relationship with Turkey. The ouster of President Elchibey eight months earlier had created tensions in Turkey, but the Turks remained open to a rapprochement. On February 8, Aliev traveled to Ankara for a four-day state visit. He left Ankara with a ten-year Friendship and Cooperation Treaty that provided for mutual assistance in the event of third-party aggression.132 128 Cornell, supra note 7, at 111-12. The Karabakh Armenians were particular unhappy about returning Kelbajar to the Azerbaijanis. 129 Croissant, supra note 3, at 91. 130 Id. at 108. 131 Id. at 108-09. 132 Id. at 109.

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The Azerbaijani-Turkish rapprochement prompted the Russians to change tacks. On May 4, negotiations in Bishkek, Kyrgyzstan, between Armenia, Azerbaijan, and representatives of the Karabakh Armenians began with Russian and Kyrgyzstani mediators representing the CIS Interparliamentary Assembly. The agreement that emerged from these talks, known as the Bishkek Protocol, called for a cease-fire to begin on May 8 and supplementary talks on the withdrawal of armed forces, the return of refugees, lifting of economic blockades, the exchange of prisoners of war, and resolution of the final legal status of Nagorno Karabakh. Critically, the Bishkek Protocol also suggested the dispatch of a CIS peacekeeping force to the region, but it did not commit Azerbaijan on this point.133 A cease-fire went into effect four days later, on May 12, 1994. Perhaps surprisingly, the cease-fire has held ever since. The success of the May cease-fire requires explanation. Why should Russian efforts to stop the fighting succeed in May 1994 when so many previous efforts had failed? The first thing to note is that the cease-fire agreement committed the parties to nothing more than a cessation of hostilities and continued negotiations. It was an exercise in war-stopping, not peacemaking. The Bishkek Protocol, despite its laundry list of issues for later resolution, addressed neither the underlying causes of the conflict nor the consequences of the fighting. What it did offer was a respite for two warring parties that had each come to see further fighting as contrary to their interests. The parties had entered a “mutually hurting stalemate,” a situation in which both sides viewed victory through escalation as impossible and found the status quo undesirable.134 When the May cease-fire began, the Armenians had established a defensible frontline to the east of Nagorno Karabakh.135 Robert Kocharian, chairman of the State Defense Committee of the Nagorno Karabakh Republic at the signing of the cease-fire and later president of the Republic of Armenia, said that the Armenian leadership “seriously began to think about [a cease-fire], when we came to borders, where we could seriously organize the defense of Karabakh.”136 Even had Armenia’s latest offensive not stalled, further conquests would have taken Armenian forces into the less defensible lowlands and created even larger numbers of refugees. Occupation of more territory also looked likely to carry a high diplomatic cost, and the Armenian leadership had begun to understand that international support would be necessary for any long-term legitimation of Armenia’s military gains. So, in May 1994, the Armenian leadership decided that a cease-fire was preferable to continuation or further escalation of the war. For Azerbaijan, a cease-fire offered a chance to avoid further military losses. Azerbaijan’s 1993-94 winter offensive had been costly in manpower and equipment.137 133 Id. at 110. 134 Moorad Mooradian & Daniel Druckman, Hurting Stalemate or Mediation? The Conflict over Nagorno Karabakh, 1990-95, 36 J. Peace Stud. 709, 712-13 (1999). 135 Simonyan, supra note 83. 136 Quoted in De Waal, supra note 9, at 240. 137 Cornell, supra note 7, at 106, 113.

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Another push to regain territory seemed beyond Azerbaijan’s abilities.138 Perhaps more importantly, Armenian forces were within thirty kilometers of Yevlah. The fall of Yevlah would have cut Azerbaijan in two, and military collapse seemed possible.139 For President Aliev, the political risks of a cease-fire were high. The domestic opposition was committed to military victory, and Aliev must have realized that military defeat would turn popular opinion against him. At the same time, refusal to sign the Russian-backed Bishkek Protocol risked angering Russia, and Aliev, as the chief beneficiary, was well aware of Russia’s role in overthrowing Elchibey.140 A ceasefire offered Aliev the chance to play for time while his rapprochement with Turkey began to bear fruit, a revived CSCE mediation process picked up pace,141 and international investment in Azerbaijan’s reviving oil industry increased his resources and leverage with the West. A. Competitive Russian and CSCE Mediation Efforts (1994) With the war stopped by the May 16 cease-fire, the business of securing a negotiated peace began in earnest. Russia continued to push for a peace settlement that would ensure its primacy in the region. At the same time, the CSCE became more active and began to make peace proposals of its own. Over the course of the year, the contentious issues that would have to be resolved before peace could be achieved became obvious to all sides: whether and what type of international peacekeeping force to deploy; a timetable for withdrawal of Armenian troops; which side would control the Lachin Corridor both in the short term and the long term; when to allow the return of displaced civilian populations; and, most fundamentally, NagornoKarabakh’s final status and how to determine it. The presence of competing mediators, however, made the already difficult negotiations even more so by permitting forum shopping by the parties. Four days after the cease-fire, Russia again attempted to win Azerbaijani acceptance of Russian peacekeepers. Russian Defense Minister Grachev pressed the conflict parties to accept a 1,800-man Russian force.142 Grachev’s efforts were undermined by Minsk Group chairman and Swedish diplomat Jan Eliasson, who 138 In order to make its 1993-94 winter offensive possible, the Azerbaijani army had ordered “human wave” assaults, issued orders that deserters were to be shot on sight, hired 1,000 to 1,500 mujaheddin from Afghanistan, and recruited veterans from other CIS states. While these acts improved Azerbaijan’s military performance, they also demonstrated the erosion of the Azerbaijani military’s ability to launch an offensive without outside support or the rapid depletion of its own resources. See Croissant, supra note 3, at 96. 139 Cornell, supra note 7, at 106. Rasul Guliev, speaker of the Azerbaijani Parliament, visited the front lines and concluded that Azerbaijani forces were at the breaking point. De Waal, supra note 9, at 239. 140 Croissant, supra note 3, at 110-11. 141 Jan Eliasson, the chairman of the Minsk Group, had in fact been in the Caucasus to promote the CSCE peace plan at the time the cease-fire was signed. Azerbaijan had requested that he be invited to attend the cease-fire talks, but Russia and the CIS had not done so. Cornell, supra note 7, at 113. 142 De Waal, supra note 9, at 239.

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in mid-May began to shuttle between Yerevan and Baku.143 In a one-on-one meeting with Russian envoy Kazimirov, Aliev told the Russian diplomat that “Russia cannot deploy its troops in Azerbaijan by itself. They will have to tread over my dead body first. Russia’s troops can be deployed within the framework of an international force, which the CSCE will establish.”144 The CSCE gave Aliev an alternative to a Russian-brokered peace. This appears to have been Eliasson’s purpose and that of some Western states in the Minsk Group.145 Eliasson cautioned the conflicting parties to take their time to carefully consider Russia’s peace plan. At one point, he even offered to dispatch a small contingent of CSCE cease-fire observers to the conflict zone without first consulting Russia.146 Russia reacted by accusing members of the Minsk Group of trying to sabotage the peace process. For the rest of 1994, Russia and the CSCE Minsk Group, represented mainly by Jan Eliasson, operated in parallel (and in competition). The outline of Russia’s proposed peace plan began to emerge in the summer of 1994. In August, Russia invited the Armenians and Azerbaijanis to Moscow for tripartite negotiations. Eliasson was not invited.147 The Russian plan included the creation of a buffer zone between the opposing forces, the insertion of a primarily Russian peacekeeping force, and a stageby-stage withdrawal of Armenian forces from all occupied areas except Nagorno Karabakh and the Lachin corridor.148 In talks lasting from August 5 to August 13, the parties failed to reach agreement on the plan. Composition of the peacekeeping forces was a major source of disagreement. Azerbaijan rejected a Russian-dominated peacekeeping force and insisted that Armenian forces withdraw from Lachin and Shusha, demands that the Karabakh Armenians refused. The most fundamental conflict, the eventual status of Nagorno Karabakh, also confounded the mediators.149 All sides did manage to agree in theory to the deployment of an “international” peacekeeping force to the region.150 A second round of negotiations in Moscow in September included representatives of the Minsk Group, but active participation by the CSCE prompted Russian Special Envoy Kazimirov to protest: [T]here are constant attempts to formalize the [Minsk] Group’s primacy, to emphasize the CSCE’s leading role […] Some countries are trying to use the CSCE as a cover for their geopolitical interests, rather than as a conflict resolution mechanism. Some people would like to minimize Russia’s role and exclude the CIS from the process.151 143 144 145 146 147 148 149 150 151

Croissant, supra note 3, at 111. Id. (citing Hurriyet, June 5, 1994, in FBIS-WEU, No. 94-064, at 54 (Apr. 4, 1994)). De Waal, supra note 9, at 254. Croissant, supra note 3, at 111. Id. at 112. Id. De Waal, supra note 9, at 255. Croissant, supra note 3, at 113. Id. at 14 (citing Vladimir Socor, Russia Challenges CSCE over Karabakh, RFE/RL Daily Report (Oct. 6, 1994).

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Hypocritically, Russia organized a two-day presidential summit while the September talks were taking place and excluded CSCE representatives.152 The September talks ended without resolution of any of the major issues, and Russia and the CSCE remained at odds and frustrated with one another. By the end of 1994, it had become clear to the mediators that their competition was harming the peace process. The CSCE scheduled a summit for early December, and, in anticipation, Russia and the CSCE began to work on a compromise that would restore some measure of cooperation between the primary mediators to the conflict. B. Cooperation between CSCE/OSCE and Russia (1994-1996) In December 1994, the CSCE met in Budapest and voted to rename itself the Organization for Security and Cooperation in Europe (OSCE) effective January 1, 1995. The upgrade from conference to organization occurred in a time of generally good relations between the West and Russia. In this context, Russia agreed to drop its insistence on a dominant role in the policing of a peace agreement. In exchange, it was made a permanent cochair of the Minsk Group alongside Sweden, which continued to hold the rotating cochairmanship until it passed to Finland in 1995. Details of a peacekeeping force were not formally worked out, but there was a tacit understanding among the members of the OSCE that no single country would provide more than 30 percent of the force.153 The document produced at the end of the 1994 CSCE summit “strongly endorsed the mediation efforts of the CSCE Minsk Group and expressed appreciation for the crucial contribution of the Russian Federation.” It also expressed the organization’s agreement to “harmonize these efforts into a single coordinated effort within the framework of the CSCE.”154 The agreement between the CSCE and Russia can be seen in two very different ways. First, one could see the Budapest summit as a “clear setback in terms of the [CSCE’s] authority,” an acknowledgment that its mediation efforts could not succeed without the assistance of Russia.155 Alternatively, one could see the agreement as proof that “Western and Azerbaijani intransigence in the face of Russia’s demands had finally paid off ” in the form of an agreement by Russia to drop its insistence on preeminence in the mediation process.156 Whichever way one chooses to see renewed cooperation between Russia and the CSCE, at the time the deal was widely hailed as progress. Expectations that rapprochement between the mediators would lead to progress soon proved to be misplaced. Talks held in Moscow in May 1995 failed to produce any results. Baku refused to recognize the Karabakh Armenians as an equal party to the talks, preferring that both the Armenian and Azeri communities of the region attend talks as “armed parties.” An explosion at a pipeline supplying gas to Armenia 152 Croissant, supra note 3, at 114. 153 Id. at 119. 154 Conference on Security and Cooperation in Europe, Budapest Document 1994, Doc. RC/1/95 (Dec. 21, 1994). 155 Cornell, supra note 7, at 113. 156 Croissant, supra note 3, at 119.

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through Georgia caused a temporary halt in talks and renewed recriminations. Talks resumed several months later, but, by the end of 1995, negotiations “had become a propaganda forum for both sides and were therefore stalled.”157 Talks remained stalled throughout 1996 despite the shuttle diplomacy of Russian Foreign Minister Yevgeni Primakov. C. France, Russia, and the United States Take Over Mediation (1997-Present) In December 1996, the OSCE held a conference in Lisbon. Delegates produced a draft statement acceptable to all conflict parties that called for a peace resolution. At the last minute, President Aliev introduced an annex calling for a solution respecting Azerbaijan’s territorial integrity. Armenian President Ter-Petrosian protested that the annex would prejudice the outcome of negotiations on the final status of Nagorno Karabakh. Despite his protest, every state present signed the declaration and annex, leaving Armenia diplomatically isolated. This increased tensions between Armenia and Azerbaijan; no additional talks were held for four months.158 In January 1997, Finland’s term as cochair of the Minsk Group ended. A disagreement between Armenia and Azerbaijan over who would succeed Finland led to both France and the United States joining Russia as permanent cochairs.159 Negotiations recommenced in May. In June, the new leaders of the Minsk Group presented a comprehensive peace proposal similar to past plans.160 Ter-Petrosian responded favorably, but the Karabakh Armenians hardened their position, insisting that there could be no peace so long as Nagorno Karabakh remained a part of Azerbaijan.161 In September 1997, the OSCE negotiators decided to approach the problem from another direction. Rather than propose a comprehensive settlement plan, they would split the peace negotiations into two stages. The first stage would involve military withdrawal; the second would involve the remaining political questions, such as final status. President Ter-Petrosian, breaking with Armenia’s past opposition to a 157 Gerard Libardian, “Time is on Neither Side,” in Gerard Libaridian & Arif Yunusov, New Approaches to Nagorno-Karabakh: A Window of Opportunity? East-West Institute Policy Brief No. 3, 1998. 158 Cornell, supra note 7, at 114. 159 France was selected, but Azerbaijan believed France to be in favor of Armenia and requested that the United States, which had expressed interest in serving as cochair, be allowed to take the position. As a compromise, both countries were made cochairs. Azerbaijan’s preference for the United States marked a shift. Previously, Azerbaijan had seen the United States as biased in favor of Armenia. The shift likely resulted from increasing U.S. involvement in the Azerbaijani oil industry. See id. at 1145. 160 Under the proposal, Armenian forces would have withdrawn from all occupied territory outside of Nagorno Karabakh and the city of Shusha. An OSCE peacekeeping force would have deployed in the formerly occupied territory, and refugees would have been permitted to return to their homes. Lachin would have then been leased to an autonomous Nagorno Karabakh, which would have been permitted its own constitution and military police force. See Croissant, supra note 3, at 121. 161 Cornell, supra note 7, at 116.

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step-by-step solution, expressed support. The Armenian president had become concerned that the economic blockade of Armenia was threatening the long-term economic viability of the country.162 The president’s support for a phased peace plan set off a series of events that culminated in a political crisis. Opposition to the Minsk Group’s proposals was widespread, even within Ter-Petrosian’s government. By February, key allies of the president had resigned, and forty of the ruling party’s ninety-six parliamentary deputies had defected to the opposition. On February 3, President Ter-Petrosian resigned. Prime Minister Kocharian, an opponent of the step-by-step peace proposal and the former president of the Nagorno Karabakh Republic, became president of the Republic of Armenia.163 D. A Decade without Progress (1998-2008) In November 1998, the Minsk Group cochairs presented a new proposal that returned to the comprehensive settlement model. They introduced the concept of a “common state,” an idea applied by Russian Foreign Minister Primakov in Transdniestria and Abkhazia.164 The idea would have united Azerbaijan and Nagorno Karabakh in one entity, a common state, but the plan did not specify the hierarchical relationship, whether vertical or horizontal, between the two parts of the entity in order to leave room for negotiations between the parties. The Armenians endorsed the new plan, which diluted the Lisbon commitment to Azerbaijan’s territorial integrity, but Azerbaijan strongly rejected the common state idea. Azerbaijan accused the Minsk Group of adopting a Russian idea designed to favor the Armenians, rewarding Armenian hardliners for the ouster of Ter-Petrosian, and undermining the authority and credibility of the OSCE. Between 1999 and 2001, Presidents Aliev and Kocharian held a series of personal meetings, many of them one-on-one. For a while in 1999, it looked like a deal might be possible on the basis of the “Goble Plan,” an idea proposed by a State Department specialist in 1992. The Goble Plan contemplated a territorial exchange: Lachin for Meghri, a swap that would link Armenia to Nagorno Karabakh and Azerbaijan to Nakhichevan. The idea was unpopular in both Armenia and Azerbaijan. Three of Aliev’s most senior advisors, including his foreign minister, resigned in protest. The idea failed in the wake of the assassination of eight members of the Armenian parliament, including the speaker and the prime minister. The chaos that followed suspended negotiations for almost a year. By then the Goble Plan was dead, Kocharian having apparently decided he could not sell it to the Armenian public.165 In January 2001, talks resumed between the two presidents with the active encouragement of the Minsk cochairs. A series of successful meetings resulted in a high profile five-day negotiation in Key West. These talks came close to achieving agreement, but domestic opposition in Azerbaijan caused Aliev to renege on some of his concessions. By October, President Aliev warned the Minsk Group negotia162 163 164 165

De Waal, supra note 9, at 259. Croissant, supra note 3, at 122-23; see also De Waal, supra note 9, at 258-61. Cornell, supra note 7, at 119. De Waal, supra note 9, at 263-66.

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tors that “Either the OSCE Minsk Group takes a principled position […] or we will have to liberate our land by military means.”166 Whether this represented an actual change in Aliev’s thinking or an attempt to play to public opinion, the Key West talks had failed. In 2002 and 2003, no progress was made toward peace, in part because of elections in both Armenia and Azerbaijan. Robert Kocharian won reelection in Armenia amid allegations of election fraud. In October 2003, President Aliev, who had suffered from ill health for a number of years, abruptly resigned and was replaced on the ballot by his son, Ilham Aliev. Two months later, Ilham Aliev was elected president of Azerbaijan. He lacked the authority of his father, and prospects for peace dimmed as a result.167 From 2004 to 2006, the Minsk Group conducted a series of secret meetings between the Armenian and Azerbaijani foreign ministers. These meetings, known as the Prague Process, were designed to facilitate later meetings between the presidents. In 2005 and 2006, the cochairs proposed a series of principles on which to base peace negotiations. These included renunciation of the use of force, Armenian withdrawal from parts of Azerbaijan surrounding Nagorno Karabakh, an interim status for Nagorno Karabakh, substantial international aid, the deployment of an international peacekeeping force, and mutual commitment to a vote on Nagorno-Karabakh’s final status after the return of displaced Azeris.168 The Prague Process returned to the idea of phased peace, with status determination taking place after implementation of other elements. Both parties have maintained objections to the proposed principles, although they have shown some willingness to discuss the idea of a resolution to the status question through a plebiscite.169 The Prague Process resulted in four meetings between Presidents Kocharian and Aliev in 2006 and 2007. None produced a breakthrough. Elections in February 2008 in Armenia and October 2008 in Azerbaijan put a halt to talks. VII. Analysis and Conclusions Fourteen years have passed since the Armenians and Azerbaijanis signed a ceasefire. The 1994 cease-fire line is now a heavily fortified frontier between Azerbaijan, on one side, and Nagorno Karabakh and the Republic of Armenia, on the other. The absence of active warfare has not given rise to peace; instead, a state of armed hostility has become entrenched: The settlement achieved in 1994 has not led to a resolution of the issues that divide the parties. The battlefield calm following the ceasefire has not provided an opportunity to address those issues in negotiating fora. Rather than bringing the parties together, the agreement has served to separate them. The hurting stalemate cre166 Id. at 270 (citing Turkish Daily News, Oct. 21, 2001). 167 Ilham Aliev’s victory triggered mass protests over the conduct of the elections and a refusal of the opposition to accept the results. 168 International Crisis Group, supra note 1, at i. 169 Id.

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ated a sense of urgency to settle. No comparable event has created a desire to seek a resolution. 170

This section suggests reasons why resolution of the conflict in Nagorno Karabakh remains elusive. In order to do so, it first posits that certain circumstances are more amenable to peace negotiations than others and suggests that an opportunity for peace, the hurting stalemate that offered the best chance of peace to date, occurred in 1994 and was wasted. Second, it offers several reasons why the parties and outside mediators failed to achieve peace in 1994 and have failed since. Finally, this section concludes with the grim prediction that renewed violence may precede lasting peace if outside powers are unable or unwilling to change their policies toward the conflict in Nagorno Karabakh. First, the situation in Nagorno Karabakh in 1994 was a mutually hurting stalemate, a situation in which both sides in a conflict view victory as unattainable and the status quo as unacceptable. In a hurting stalemate, parties will look for ways short of victory to escape the pain of the status quo, making peace talks more likely to occur and more likely to succeed. Because a hurting stalemate arises only under certain conditions, some periods in a conflict will be more amenable to peacemaking than others. In the case of the Nagorno Karabakh conflict, the most acute hurting stalemate occurred in 1994. The Armenians and Azerbaijanis had exhausted their war-making abilities through heavy winter fighting. At the same time, both conflict parties were maximally aware of their vulnerabilities. Azerbaijan feared military collapse. The economic blockade on Armenia had begun to bite, causing the Armenian leadership to reassess the costs of the war. At the same time, external pressures made peace talks more appealing. For Armenia, each success on the battlefield created thousands of new Azerbaijani refugees, drawing international criticism and making winning international support for Nagorno Karabakh independence more difficult. For Azerbaijan, continued fighting risked the alienation of Russia and exposed President Aliev to outside efforts to topple his government, as had happened to his predecessor, President Elchibey. The combination of these factors convinced the Armenians and Azerbaijanis that a cease-fire was preferable to further fighting. If one accepts that hurting stalemates promote peace, however, one must also consider the proposition that less painful periods or periods that offer victory to one side can make peace more difficult to achieve. In the Nagorno Karabakh conflict, a cease-fire ended the immediate pain of ongoing armed hostilities and may thereby have made real peace more difficult to achieve. By the end of 1994, the sense of vulnerability felt by both parties had lessened to the extent that Vartan Oskanian, Armenian deputy foreign minister in 1994 and foreign minister from 1998, believed that the parties and mediators had missed an opportunity: That momentum was not utilized. So once that was not utilized, with the passing of time, some of the realities on the ground suddenly began to be liabilities. It was much easier to return the occupied territories two months after the cease-fire than it 170 Mooradian & Druckman, supra note 134, at 724-25.

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Nicholas W. Miller is today. It was much easier to lift the blockade for Azerbaijan right after the ceasefire than certainly it is today. And the same applies for all the other elements.171

Since then, the mediators have been unable to overcome the unwillingness of either side to compromise on fundamental disputes. In both Azerbaijan and Armenia, Relatively stable political situations […] combined with improving economies, especially in Azerbaijan due to its oil reserves, [have] reduced the attractiveness of various proposed alternatives to the status quo […] Thus, parties who, because of the costs of combat, are motivated to settle may, because of a lack of comparable incentives, not be motivated to resolve their differences. A challenge for third parties, then, is to create the sense of urgency needed to move beyond the terms of disengagement to a lasting peace. How to create that “sense” continues to elude the mediators involved in the Nagorno-Karabakh conflict.172

As the situation currently stands, Armenians enjoy a growing economy and a sense of security despite the lack of international recognition of the status quo in Nagorno Karabakh. At the same time, oil-rich Azerbaijan continues to invest heavily in its military and nurtures the hope of one day recapturing Nagorno Karabakh by force. Among international observers, concern has grown that as Azerbaijan’s oil revenue peaks sometime around 2012, Baku will feel pressure to use military force at the point of its greatest material advantage over Armenia. At the same time, its growing military advantage, while perhaps insufficient to deliver certain military victory to Azerbaijan, gives the Azerbaijani government less incentive to negotiate in earnest. Thus, at present, both sides in the conflict prefer the status quo to the compromises that would be necessary to secure a lasting peace. If entrenchment added to the intractability of the conflict, how did the mediators and the parties fail to take advantage of the critical moment following the signing of the cease-fire? And more generally, what factors explain the underlying intractability of the Nagorno Karabakh conflict? There is no simple answer to this question, but there are answers. Some of the answers have to do with the nature of the conflict itself, and some have to do with the mediators and the way mediation efforts were conducted. First, in the period following the cease-fire the most proximate cause of failure may well have been the emergence of a competitive mediation process, with both Russia and the CSCE vying for preeminence. Ambassador Maresca described the period from the May cease-fire to the end of 1994: So you had this peculiar situation where the Russians were both participating in the international community negotiations, signing onto the proposals that were made, and then the very next day going out and making proposals of their own, which in many cases were quite different. So that the parties for the conflict were faced with this kind of competition. 171 Quoted in De Waal, supra note 9, at 253-54. 172 Mooradian & Druckman, supra note 134, at 725.

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This, I think, inevitably leads to what I call forum shopping where one party or another can look for a better deal here or there and essentially work the negotiations against each other. That was, and continues to be, a very serious problem.173

Competition undermined the ability of either side to impose costs on or offer incentives to the conflicting parties. The CSCE did not have the resources or political will to force a peace agreement on the parties in 1994, but it was able to frustrate Russia’s peace efforts. Competition between Russia and the CSCE lasted long enough for the critical momentum of the cease-fire to dissipate and to permit the status quo of May 1994 to solidify. The role of outside powers in the Nagorno Karabakh conflict was shaped by the nature of their interests in the region. The interests of outside parties dictated how much attention, money, and manpower outside parties were willing to commit to their peacemaking efforts. Russia, the nearest and most interested power, inherited the Soviet Union’s connections and interests in the Caucasus but also suffered from excessive demands on its limited resources. This was especially true in the period immediately following Russian independence and remained true through 1994 and beyond. For Western powers, the problem was less a shortage of resources than a lack of concrete interests. Soviet rule prevented the West from developing ties to the Caucasus prior to the collapse of the USSR, and interests in the region were slow to develop after 1991. Large Armenian Diaspora communities in some cases led to international aid and a token interest in the conflict, but more substantial interests only developed as Western investment in the Azerbaijani oil industry grew. Oil interests, however, gave the West a reason to seek stability; oil interests did not automatically make the West interested in promoting peace. Both Russia and the West do seem to have shared one interest: minimizing the influence of other outside parties. In deciding what resources to invest in the Caucasus, both Russia and the West appear to have engaged in classic zero-sum reasoning: my competitor’s gain is my loss. Throughout the period in question, they each took steps to prevent the other from extending its influence in Armenia and Azerbaijan by dominating the peace process. The shuttle diplomacy of Jan Eliasson in 1994 is perhaps the most notable example of this phenomenon. Eliasson promised little and delivered less, but merely by offering himself as an alternative mediator, he gave Armenia and Azerbaijan a way to resist the Russian peace plan. Frustrating a Russian-imposed peace plan kept Russian peacekeepers out of Azerbaijan, which in turn prevented Russia from dominating the emerging Azerbaijani oil industry. The zero-sum mindset exhibited by the major outside powers led them to invest only the resources needed to undermine the efforts of other powers, not the greater resources necessary to secure peace. But the failures of outside mediators alone do not explain the longevity and intractability of the conflict. Outside pressure on the conflict parties was made much less effective by several characteristics of the conflict itself, including its authentic and indigenous nature. The animosity between Armenians and Azerbaijanis is rooted in a long history, as discussed above, and, in its modern form, does not result 173 Maresca, supra note 108.

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from either elite or outside instigation. Indeed, opposition to one another appears to have played a key role in the formation of modern Armenian and Azerbaijani national identities. “[T]he Armenian and Azerbaijani nationalisms send back each other’s images like a deforming mirror, as if they can exist only by opposition to one another.”174 This has shaped the two countries’ political systems: in each, independence was hastened and facilitated by popular animosity toward the other; in each, governing parties emerged from nationalist movements built upon the fervor evoked by the Nagorno Karabakh conflict. Likewise, patriotism and war fervor have made the political space for compromise-minded leaders uncomfortably small. History, hardship, and alienation have all done their part to demonize the enemy for both Azerbaijanis and Armenians. Each side nurtures a deep-seated belief in the righteousness of its cause and in the centrality of Nagorno Karabakh in its national identity. These widely held and deeply felt feelings have given the conflict elements of a mass-led rather than elite-led conflict. The distinction is not meant to be a black and white one: in all political systems elites and nonelites influence and respond to one another. In this conflict, however, nationalism in both states has made willingness to compromise politically dangerous, limiting the ability of elites to make concessions or give up ground. President Ter-Petrosian learned this to his detriment. Victories on the battlefield helped keep him in power from 1991 to 1998, but his openness to a negotiated solution in 1998 swiftly undermined his political support and forced him from office. Throughout the conflict, popular demands for military victory have limited the scope for compromise and peaceful settlement. The authentic indigenous nature of this conflict has also made it harder for outside powers to promote peace in two ways. First, because the conflict is indigenous, pressure had to be applied directly on the warring parties rather than on an outside, instigating power. Second, the mass-led nature of the conflict meant that Armenian and Azerbaijani leaders were less susceptible to outside suggestion because of countervailing pressures from within their own communities. President Kocharian’s apparent openness to and subsequent rejection of the Goble Plan in 1999-2000 appears to have been an example of domestic opinion outweighing international pressure. Likewise, Aliev’s retreat from his concessions at Key West in 2001 was apparently the result of domestic opposition. Finally, another factor complicating solution of the Nagorno Karabakh conflict is the region’s geographic location, which has affected conflict resolution in two ways. First, the conflict’s isolation has made it easier for outside powers to ignore. Generally, outside interest in stopping a conflict increases as its effects spread beyond the geographic location of the conflict itself. The wars in the former Yugoslavia, for example, caused thousands to flee to the European Union. This created an EU interest in stopping these conflicts. The Nagorno Karabakh conflict has generated no equivalent negative externalities for major international powers, further lessening their willingness to invest resources in conflict resolution. 174 Cornell, supra note 7, at 93 (quoting Stéphane Yérasimos, Caucase: Le Retour de la Russie, Politique Étrangère, no. 1, 1994).

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Secondly, the geographic isolation of the conflict would make what pressure the international community might consider applying on the conflict parties less effective. Economic sanctions, a common tool of international pressure, are not practical. Armenia is already economically isolated by its geography and by the economic blockade imposed on it by Turkey and Azerbaijan. Azerbaijan’s international trade is largely oil-based, and Western powers are extremely unlikely to damage their own interests by placing sanctions on oil pumped by Western companies. An arms embargo might have some effect, perhaps by preventing a reescalation of the conflict, but it would be unlikely to force the parties to the negotiating table. This is partly because both sides are already heavily armed and, although apparently incapable of achieving victory on the battlefield, capable of preventing defeat. Armenia’s strategic frontline and the region’s mountainous terrain make its forces difficult to dislodge. Azerbaijan’s larger population, larger economy, and greater strategic depth make outright victory for Armenia extremely unlikely. Geography has helped to make the stalemate stable; neither side can achieve victory, but neither side feels immediately threatened with defeat. Active intervention is needed to change the strategic calculations of the parties, to make peace more attractive than the status quo. Outside powers have been unwilling to commit the resources necessary to do this because their own interests are not sufficiently implicated and because other outside powers can and have made doing so more costly in order to protect their own interests in the region. As a result, Nagorno Karabakh seems no closer to peace today than it was fourteen years ago. “The overwhelming majority of observers believe that a negotiated solution will not and cannot be reached in Nagorno-Karabakh as the situation is today.”175 Indeed, the apparently endless negotiations have led even the Minsk Group negotiators to express their frustration: We have reached the limits of our creativity in the identification, formulation, and finalisation of these principles. We do not believe additional alternatives advanced by the mediators through additional meetings with the sides will produce a different result. If the two sides are unable to agree on those principles we have put forward, we believe it is now contingent upon them to work together to reach an alternative agreement that both find acceptable.176

So long as outside powers remain unable or unwilling to apply sufficient pressure on Armenia and Azerbaijan to make peace more attractive than the current stalemate, both parties are likely to continue to perceive the status quo as more attractive than compromise. Only a change in circumstances that makes the status quo undesirable will inject new life into peace talks. Unfortunately, in the absence of significant international intervention, only renewed fighting seems likely to bring about a hurting stalemate. In this context, it is fair to ask whether peace in Nagorno Karabakh can occur without the return of war. 175 Cornell, supra note 7, at 329. 176 Statement by the Minsk Group Co-Chairs to the OSCE, Permanent Council, June 22, 2006, available at http://www.regnum.ru/english/665413.html.

Chapter 3 War and Peace in Rwanda Tom Dannenbaum

I. Introduction In 1994, the people of Rwanda experienced the most devastating genocide since the Holocaust. The massive crimes against humanity perpetrated in the short period from the assassination of President Juvénal Habyarimana on April 6 to the fall of Kigali on July 4 are the tragic legacy of extensive regional and international attempts to mediate a sustainable peace between the parties to what had been a relatively lowprofile conflict. This chapter examines the Rwandan war with a view to understanding how these peacemaking efforts failed in such emphatic fashion. In particular, it evaluates, first, the unsuccessful attempts by local regional actors to design enduring cease-fires with a view to peace in 1991 and, second, the internationally sponsored Arusha negotiations of 1992-1993, which, despite concluding with a signed comprehensive peace agreement, ultimately failed to prevent both the genocide and the reengagement of the warring factions. With respect to the regional attempts at peacemaking in 1991, the chapter argues that though there were important flaws in the process, the real reason for failure was that the conflict had yet to reach a stage at which either party was ready to compromise on core aims in order to end the fighting. The moment, in other words, was not yet propitious for peacemaking—there existed no mutually acceptable agreement that could have brought the war to an end. With respect to Arusha, the failings are more complex. In what follows, this chapter contends that there were at least three core factors behind the demise of the final agreement. First, the Arusha Accords failed to deal adequately with the needs and requirements of the old ruling oligarchy, particularly with respect to the protocols on the transitional government and the integration of the military. The insurgency’s military superiority on the ground garnered it a victor’s agreement. However, it had not yet won the war, and the old regime’s control of the military gave government forces the capacity to spoil the process of implementation. Second, democratization pressures from the international community (particularly donors and international financial institutions) caused the governing party to legalize opposition parties, and ultimately introduce coalition partners, at the same time as it was trying to wage war, manage a collapsing economy, and negotiate with the hostile insurgents. Although these democratization pressures certainly accelerated the peace process, they did so K. Eichensehr and W.M. Reisman (eds.) Stopping Wars and Making Peace: Studies in International Intervention ©  2009 Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17855 7. pp. 77-119.

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at the cost of generating a significant fissure between the coalition partner-led negotiating team and the president and his military. The result was that the delegation at Arusha represented neither those in charge of the government nor the Rwandan military. These first two factors helped to create a constituency of leaders that was motivated to sabotage the implementation of the Arusha Accords. The third factor was the failure of the United Nations, and the international community in general, to provide a robust and powerful peacekeeping force to contain these spoilers and prevent them from destabilizing the nation and ultimately the region. Together, these weaknesses in the Arusha process contributed to the breakdown of Rwandan society in mid-1994 as the country deteriorated into genocide and further war. However, although ameliorating these factors would certainly have improved the chances of a successful peace agreement between the government and insurgent forces, the conflict was such that an enduring peace agreement would have been very difficult to achieve under even a perfectly designed and managed process. To understand why this is so requires an understanding of the Rwandan civil war, which in turn requires an appreciation for the history from which it arose. II. A Brief History of Rwanda Prior to the Conflict Rwanda’s first inhabitants were the forest-dwelling Twa (by far the smallest of the three ethnic groups that comprise modern Rwanda, at around 1 percent of the total population). Having lived in relative isolation for up to 3,000 years, the Twa were largely displaced by an influx of agrarian Hutu in around 1,000 A.D. as part of the Bantu expansion. Starting shortly after this, but accelerating significantly in the fifteenth century, a third group began to migrate into the region: the predominantly pastoralist Tutsi. Neither the Hutu nor the Tutsi honored a central locus of power or authority at this early stage. Consequently, interactions between them took place at the local level, where the groups tended to trade and integrate relatively peacefully. The Tutsi assimilated to Hutu culture, traditions, and language, and the two groups intermarried with regularity. However, in most of the small political groupings that developed across Rwanda during this time, Tutsi leaders tended to take control. Indeed, along with their professional distinctions, this distinction in political status better captures what “Hutu” and “Tutsi” meant at this stage than do ethnic or cultural ascriptions. This early political differentiation would ultimately prove critical to the longterm development of Tutsi and Hutu identities. The first major step in this development was the reign of Tutsi King Rwabugiri (or Kigeri IV) in the latter half of the nineteenth century. Rwabugiri was the first ruler to centralize political control over Rwanda; he consolidated the various political entities that had been under the    

J. Tebbs, Rwanda, War and Peace 25 (1999). Id. at 26. Id. at 26-30. Alex de Waal, Genocide in Rwanda, 10 Anthropology Today 1, 1 (1994) (explaining that during this era Hutu, Tutsi, and Twa “were three different strata of the same group, differentiated [only] by occupational and political status”).

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benign rule of pastoralist leaders and extended the reach of his kingdom to peripheral agrarian Hutu “statelets.” Through the organization and bureaucratization of the state, Rwabugiri’s regime created an aristocratic Tutsi political class in Rwanda. Hutu were largely relegated to middle- and lower-level positions in administration of the state. Thus, although it is important to recognize the “complexity of pre-colonial ethnic ascriptions and relations” at the level of the peasantry and the middle class, it is also crucial to acknowledge that, even before the colonization of Rwanda, “the centralisation of the state [had] led to a harsh [. . .] regime in which access to the highest courts of power was based on Tutsi aristocratic clan membership.” A. Rwanda under Colonial Rule  It was against this background, and under the influence of the “Hamitic Thesis,” that German colonialists elected to govern Rwanda (and Burundi) indirectly through the Tutsi monarchy when they took control of “German East Africa” in 1897. Preferring to reinforce and operate through the existing political structure rather than become involved in governing the region, the Germans took little interest in their newly acquired colonies. Toward the end of the German period of rule, there were a mere five German civil servants in Rwanda (and six in Burundi).10 In 1921, under a League of Nations mandate, Rwanda and Burundi were subsumed under the rule of Belgium, whose troops had taken the region in World War I. While Belgium followed Germany’s policy of indirect rule through the Tutsi monarchy, the Belgian authorities took a much closer interest in governing Rwanda, and it was during this period that the ethnicization of Tutsi and Hutu was truly deepened and solidified.11 While the Germans were under the influence of the   

Tebbs, supra note 1, at 28. Id. at 30. Villia Jefremovas, Review: Treacherous Waters: The Politics of History and the Politics of Genocide in Rwanda and Burundi, 70 Africa: J. Int’l Afr. Inst. 298, 302 (2000).  For useful accounts of the colonial history as it relates to the 1994 genocide, see Gérard Prunier, The Rwanda Crisis: History of a Genocide 23-40 (1995); Mahmood Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda 76-102 (2001).  The influential “Hamitic Thesis,” developed by German explorers and applied broadly throughout colonial Africa, “argued that the Hamites, a race of people that included the Egyptians, had spread through parts of Africa, carrying with them their greater sophistication than the Negroid races of equatorial Africa.” Bruce D. Jones, Peacemaking in Rwanda: The Dynamics of Failure 17 (2001). Bill Berkeley calls this the theory of “white Africans,” under which “the Tutsis of Rwanda were held up as [. . .] a superior race: intellectually gifted, morally uplifted, born to rule. The Hutus, by contrast, were dumb beasts of burden, ill-suited to be anything more than soil-tilling subjects.” Bill Berkeley, Road to a Genocide, in The New Killing Fields: Massacre and the Politics of Intervention 103, 104 (Nicolaus Mills & Kira Brunner eds., 2002). “[I]n short, Tutsi were considered to be related to Europeans and, therefore, the Europeans could easily work with them.” Tebbs, supra note 1, at 32. 10 Id. at 31. 11 Mamdani, supra note 8, at 15-16.

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Hamitic Thesis, and had used the existing Tutsi monarchy to rule over the Tutsi and Hutu peasantry, it was the Belgians who “imposed on the country an intellectual and administrative simplification that equated ‘Tutsi’ with ‘ruling class.’”12 To this end the Belgians introduced identity cards specifying the ethnic group of the bearer in 1933, a policy that would ultimately provide sinister utility to the génocidaires of sixty years later. Because of the “enormous overlap in physical characteristics between the groups, and [the] enormous differences of characteristics within each group,” the implementation of the identity card system was transparently artificial.13 As Anne Mackintosh explains, all Rwandans were classified according to how many cattle they had: if you owned more than ten cows, you were counted as Tutsi; with fewer than ten cows, you must be Hutu; and if you were a mere potter, you were Twa. Thereafter, it was the father’s ethnic group that determined his children’s group identity: the stratification was complete and irreversible.14

Through imposing this simplistic ethnic identity system on a society that had previously been divided along class lines, the Belgians for the first time granted Tutsi qua Tutsi “privileged access to the state, to jobs, and to the church [. . .] [thus creating] a [truly] ethnic hierarchy.”15 Belgian support for this system did not enjoy great longevity, thanks in large part to the growing emphasis on the values of democracy and egalitarianism in Western European political discourse after World War II. The impact on Rwandan society has been far more enduring. Throughout the late 1940s and early 1950s, the global democratization and decolonization movement grew stronger, and Hutu activists began to see the ethnicization that had facilitated their subjugation as a newly discovered strength when allied to their massive demographic dominance over the Tutsi. Thus, nine Hutu intellectuals, among them the future president, Grégoire Kayibanda, drafted the “Bahutu Manifesto” in 1957, endorsing and emphasizing the elements of the Hamitic Thesis that posited the Tutsi as foreigners and the Hutu as indigenous, and demanding democratization and Hutu emancipation in a classic attempt to mobilize ethnic identification to generate a dominant democratic coalition.16 This manifesto sparked the 1959 revolution and the transition from colonialism. In 1959, the last long-standing Tutsi ruler, King Mutara Rudahigwa was assassinated, precipitating a violent revolt or “jacquérie”17 among the long-subjugated Hutu peasantry. Sporadic bouts of ethnic violence continued to erupt over the next two to three years. During this period, the Belgian authorities, moved by the wave of democratization that was sweeping across Africa, abruptly ceased their support 12 Jones, supra note 9, at 19. 13 Villia Jefremovas, Acts of Human Kindness: Tutsi, Hutu and the Genocide, 23 Issue 28, 28 (1995). 14 Anne Mackintosh, Rwanda: Beyond ‘Ethnic Conflict,’ 7 Dev. in Prac. 464, 471 (1997). 15 Jones, supra note 9, at 19 (emphasis added). 16 See Tebbs, supra note 1, at 34; Jones, supra note 9, at 19. 17 Tebbs, supra note 1, at 35.

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for the Tutsi aristocracy and began to back the majority Hutu.18 In May 1960, the Belgians established the first indigenous national guard, ensuring that its composition matched the ethnic proportions present in the national population: 85 percent Hutu and 15 percent Tutsi.19 The revolutionaries of Parmehutu (Kayibanda’s fledgling political party) won Rwanda’s first legislative elections in 1961 on the back of a campaign that blamed the Tutsi as a group for the suffering of the Hutu under colonial rule, thus deepening the ethnicization of Rwandan politics. In 1962, Rwanda declared independence with these leaders at the helm. B. Tutsi Exodus and the Rise of a New Leadership in Exile The ethnic violence that accompanied the 1959-1961 period and the clearly divisive agenda of the new leadership precipitated the first major wave of Tutsi refugees to the countries surrounding Rwanda. Most importantly, tens of thousands (many of whom were part of the former aristocratic elite) fled to Uganda. Two years later, brutal reprisals wrought on Tutsi civilians throughout the country following an attack by old regime elements in Bugesera prompted a second wave of Tutsi refugees. Both civilians and politicians were targeted as thousands were killed.20 A third and final major wave of refugees flowed out of Rwanda in 1973 after another round of old-regime attacks led to violent reprisals against the Tutsi across the country.21 These three waves of refugees created an exiled Tutsi diaspora that, by 1990, had reached a population of approximately 500,000.22 The fate of the Tutsi refugees in Uganda was to play a critical role in the trajectory toward war in Rwanda.23 From the very beginning, they sought the right to return to their homeland. Though Kayibanda was officially open to refugee return, his extremist ideology meant that Tutsi exiles did not take his stance seriously and 18 Id. 19 Tor Sellström & Lennart Wohlgemuth, The International Response to Conflict and Genocide: Lessons from the Rwanda Experience (1996), available at http://www.reliefweb.int/library/nordic/book1/pb020.html. 20 Tebbs, supra note 1, at 39 (“In the préfecture of Gikongoro alone, it was estimated that between 5,000 to 8,000 Tutsi were killed; that is about 10-20% of the total Tutsi population of the préfecture. The majority of the Tutsi leadership that remained in the country was eliminated: 15 of its most important leaders were immediately executed without any kind of trial. This was the end of the two Tutsi parties, UNAR and RADER, and at the same time it brought an end to any Tutsi participation in public life.”). 21 Christian P. Scherrer, Genocide and Crisis in Central Africa: Conflict Roots, Mass Violence, and Regional War 38 (2002). 22 As Mamdani notes, estimates “vary radically” from between 400,000 and 1.5 million. However, most reckon the number to be between 400,000 and 600,000, and Mamdani suggests an approximation of 500,000 to 600,000 as a useful working assumption. Mamdani, supra note 8, at 161. 23 The leading role played by the Tutsi refugees in Uganda is no doubt in part a function of the harsher conditions they faced. As Mamdani observes, “[t]he lot of the Rwandese refugees in Uganda was arguably the worst in the region.” Id. at 164

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instead engaged in small-scale insurgencies, considering regime change a prerequisite to secure return.24 For the first decade of their exile, these Tutsi “59ers” (named after the date of the first wave) enjoyed relatively calm relations with both the Ugandan Banyarwanda population (some of which was indigenous to Uganda, and some of which emigrated from Rwanda in the 1920s) and the other ethnic groups in the country. This started to change during the late 1960s, when a political crisis led Ugandan leader Milton Obote to target the Banyarwanda as “trespassers” that needed to be evicted from the Ugandan homeland.25 The notorious reign of Idi Amin brought some respite to the Banyarwanda, who were among the few spared the atrocity of his rule.26 Indeed, it was the fall of Amin and the reinstallation of Obote following the 1981 Tanzanian intervention that led to what was ultimately the critical downturn in treatment of the 59ers. Obote quickly returned to his erstwhile strategy of isolating the Banyarwanda, and particularly the Tutsi, with violence and hate rhetoric in order to strengthen his support among the other ethnic groups and exact revenge against those who had joined Idi Amin in interim years.27 The immediate result was that many of the 59ers (first and second generation) joined Yoweri Museveni’s National Revolutionary Army (NRA) in a guerilla struggle against the Obote regime. Obote, in turn, “baptized the ‘Museveni soldiers’ as ‘Banyarwanda’” and ordered greater discrimination and brutality against the refugee population, thus perpetuating what was to become a self-fulfilling prophecy.28 In the bush, a number of 59ers rose quickly to Museveni’s inner circle and played crucial military and strategic roles in an ultimately successful insurgency.29 Once Museveni assumed leadership of Uganda in January of 1986, these Tutsi loyalists were rewarded with influential roles in the fledgling government. Most notably, future Rwandese Patriotic Front (RPF) leaders Fred Rwigyema and Paul Kagame were appointed deputy minister of defense and deputy minister of intelligence, respectively.30 Despite the rise of this 59er elite to prominent positions in the Ugandan government, its members continued to harbor a strong desire to return to the Rwandan homeland, as did their counterparts in Zaïre, Burundi, and Tanzania. Moreover, 24 For more detailed accounts of the progression from flight from Rwanda to insurgency see, for example, Cyrus Reed, Exile Reform, and the Rise of the Rwandan Patriotic Front, 34 J. Mod. Afr. Stud. 479 (1996); Catherine Watson, Exile From Rwanda: Background to an Invasion (1991). 25 Mamdani, supra note 8, at 167. 26 Jones observes that “[t]he ascension to power by Idi Amin, so traumatic for many Ugandans, actually saw a return for the Banyarwanda to the relative calm of the preObote era.” Jones, supra note 9, at 22. Reed argues that the chaos of Amin’s regime “diverted attention from the refugees.” Reed, supra note 24, at 483. Some Banyarwanda even believed that Amin might reinstall the monarchy in Rwanda and, envisioning a return to their homeland, rushed to join his army and secret service. Mamdani, supra note 8, at 167. 27 Jones, supra note 9, at 22; Mamdani, supra note 8, at 168. 28 Mamdani, supra note 8, at 168. 29 Id. at 172. 30 Id. at 173.

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because of the rise of the 59ers to prominence in the Ugandan government, by the late 1980s, Museveni came under increasing domestic pressure from non-Rwandan ethnic groups for his ties to “foreign” influences in the Banyarwanda population.31 This jeopardized the sustainability of the 59ers’ position of privilege in Uganda, and accelerated the need to consider seriously the prospects for return to Rwanda. Battle hardened from their guerilla insurgency alongside Museveni and cognizant of the latent supply of a strong core of highly trained Banyarwanda soldiers in the NRA,32 in 1987, a group of like-minded second-generation 59ers came together to form the RPF. “From the outset the RPF was a movement conceived at least in part to organize for a military return of the Rwandan refugee population.”33 Convinced, as were their immediate ancestors, of the need for regime change, the RPF also composed an eight-point political program designed to modify the structure of Rwandese political culture. The core demand was for a shift to democracy and multiethnic politics.34 In August 1990, Uganda’s senior legislative body, which was not fully controlled by Museveni, voted to expel Rwandan nationals from the NRA and forbid Rwandans from owning land in Uganda.35 This further prioritized the urgency of refugee return for the RPF. Militarized, organized, and unwanted in Uganda, they were ready to force their way back to the Rwandan homeland. Moreover, they seemed to have the blessing of Museveni, who saw this as a serendipitous opportunity to both “repay the support of the RPF leadership” and, at the same time, assuage the domestic constituencies that had become angry at the influence of this “foreign” element in Ugandan politics.36 Circumstances in Uganda, then, were pushing the RPF out. Across the border, the weakening status of the regime in Kigali was an attractive pull—this was a war the RPF leaders believed they could win. C. Postcolonial Rwanda After his victory in the 1961 elections, President Kayibanda consolidated his control over the Rwandan state and began to impose his Hutu-supremacist ideology on the population. As Mahmood Mamdani describes, “The underside of the Rwandan revolution, its political tragedy, was that [the] relentless pursuit of justice [for the colonial subjugation of Hutu] turned into a quest for revenge [against the Tutsi]. That quest was the hallmark of the First Republic.”37 Thus, “the populist Hutu administration depicted all Tutsis as scheming, treacherous speculators and parasites in an

31 Jones, supra note 9, at 22-24; Mamdani, supra note 8, at 174-84. 32 Rwandan refugees made up the third largest “ethnic group” in the NRA. Tebbs, supra note 1, at 63. 33 Jones, supra note 9, at 23. 34 Tebbs, supra note 1, at 64. 35 Jones, supra note 9, at 24. 36 Id. 37 Mamdani, supra note 8, at 16.

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overpopulated country.”38 This, of course, served to deepen and further embitter the ethnic division within the Rwandan population. However, just as not all Tutsi benefitted from the aristocratic rule of  Tutsi elites, the First Republic did not benefit all Hutu equally. Northern Hutu clans were marginalized as Kayibanda sought to benefit the southern Hutu that comprised his political base.39 Against this backdrop, in 1973, Major General Juvénal Habyarimana led a movement of northern Hutu in a bloodless military coup d’état. Most commentators agree that the Habyarimana regime was initially a great deal more tolerant to domestic Tutsi than was its predecessor.40 Indeed, René Lemarchand wrote at the time that “the prospects of a Hutu-Tutsi rapprochement [. . .] have never been brighter since independence.”41 However, it is important to take this optimism in context. Habyarimana retained most of the prohibitions on Tutsi involvement in political and military life and continued the system of official ethnic ascription via the identity card system.42 Mamdani explains this policy as follows: “As a statutorily defined minority, the Tutsi could have rights, but must give up all thought of any meaningful participation in power. For power must remain Hutu, since Hutu was the identity of the statutorily defined majority.”43 The Second Republic, despite its more tolerant veneer, remained autocratic and ethnicist at its core. Indeed, under the cover of the economic prosperity and improvement in private rights that characterized Habyarimana’s first decade, the regime methodically tightened its grip on the positions of authority within the state. Habyarimana’s “clan family” ultimately gained control of “the inner circles of power, state enterprise, army command, regional prefectures, and church leadership.”44 Rwanda was soon being run by an oligarchy “so closely knit that it earned the nickname ‘little house’ (i.e., the little house around Habyarimana), or akazu.”45 Moreover, Habyarimana’s relative tolerance for domestic Tutsi did not extend to a tolerance for Tutsi refugees seeking return. Indeed, he hardened Rwanda’s stance from Kayibanda’s formal acceptance of the principle of return to a formal rejection of that principle, basing his position on the impossibility of incorporating such a large body of returnees under the growing population pressures facing the state.46 Mamdani contends that this was a critical problem: “While the reconcilia38 Jean Hatzfeld, Machete Season: The Killers in Rwanda Speak 54 (2003). 39 Jones, supra note 9, at 25. 40 See, e.g., Jones, supra note 9, at 25; Mamdani, supra note 8, at 132-57; Prunier, supra note 8, at 74-75. 41 René Lemarchand, Recent History, in Africa South of the Sahara 1974, 660 (1975). 42 The numbers of Tutsi in public life were extraordinarily low, and army members were even prohibited from marrying Tutsi women. Prunier, supra note 8, at 75. As Clapham writes, “Tutsi were systematically discriminated against in public life, but were otherwise for the most part left undisturbed.” Christopher Clapham, Rwanda: The Perils of Peacemaking, 35 J. Peace Res. 193, 198 (1998). 43 Mamdani, supra note 8, at 140. 44 Jones, supra note 9, at 26. 45 Id. 46 Tebbs, supra note 1, at 38.

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tion pursued by the Second Republic softened the critique from the ‘internal’  Tutsi, it tended, if anything, to exacerbate the critique from the ‘external’  Tutsi.”47 What would ultimately invite the RPF to attack, however, was the weakening of the akazu’s stranglehold on the Rwandan state. This began in the late 1980s as the economy collapsed on the back of the multiple exogenous shocks of consecutive drought-induced famines (leaving over half a million people suffering from malnutrition), a dramatic fall in world coffee prices (debilitating Rwanda’s largest export sector), and a collapse in world tin prices (precipitating the closure of the last Rwandan tin mine and the elimination of an important export industry). Rwanda’s export earnings fell by 50 percent between 1987 and 1990, and its debts doubled between 1985 and 1989.48 This economic disaster combined with spiraling government corruption to generate widespread popular discontent. High unemployment rates (particularly among youths) led to angry street protests. Matching this domestic pressure, the regime came under increasing external scrutiny. In April and again in September 1990, the Catholic Church tempered significantly its previously unstinting support for the single-party rule of Habyarimana’s Mouvement Révolutionnaire National pour le Développement (MRND).49 Meanwhile, as Rwanda’s debt skyrocketed, international donors began to pressure Habyarimana for political and economic reform.50 In July 1990, Habyarimana—in a notable departure from his earlier stubbornness—finally appeared to succumb to this growing pressure. He declared the separation of party and state and began to form what turned out to be a token “coalition government” including newly legalized, but essentially impotent, opposition parties.51 Two months later, international financiers negotiated an aggressive Structural Adjustment Program (SAP), requiring a 40 percent cut in budgetary spending by a Rwandan government that was heavily subsidizing its agricultural constituency (and particularly coffee growers) in order to avoid further political crisis.52 With the Rwandan economy in freefall and Kigali facing sustained pressure from below and above, the RPF leadership, itself under duress from an increasingly hostile Ugandan population, determined that the time was right to implement a military solution to its twin aims of refugee return and regime change. On October 1, 1,500 RPF forces crossed the southern Ugandan border at Kagitumba to spark the conflict that ultimately catalyzed the mass murder of one million innocents.

47 Mamdani, supra note 8, at 16-17. 48 Regine Andersen, How Multilateral Development Assistance Triggered the Conflict in Rwanda, 21 Third World Q. 441, 444 (2000). 49 As the political situation deteriorated, Rwandan Catholic archbishop Vincent Nsengiyumva followed a directive from the Vatican to resign from the Central Committee of MRND. Tebbs, supra note 1, at 70. 50 Andersen, supra note 48, at 444 (“Donors who had supported Rwanda began to set conditions for further support, and democratisation was one of them.”). 51 Tebbs, supra note 1, at 71. 52 Jones, supra note 9, at 27.

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The RPF incursion caught Habyarimana’s Forces Armées Rwandaises (FAR) off guard. Within a few days of crossing the border, the insurgents had achieved a quick succession of military victories, culminating in the capture of the northeastern town of Gabiro on the edge of Kagera National Park. Despite the significant loss of leader Fred Rwigyema on the first day of battle, the RPF forces were in a strong position, led by experienced insurgency strategists and helped by the covert assistance of Museveni in Kampala.53 Habyarimana, who was in New York addressing the United Nations at the time of the invasion, flew immediately to France and Belgium to lobby for military support. France responded, and was joined by Zaïre. Within days, both had sent troop deployments to bolster the faltering FAR.54 Zaïre soon recalled its troops due to persistent looting, rape, and other abuse against Rwandan civilians, but first the Zaïrian forces helped Habyarimana’s forces push the RPF back into Uganda by November.55 Despite Radio Rwanda’s declaration of victory in the “October War,” this was only the beginning.56 After the deaths of Rwigyema and two other RPF leaders, Paul Kagame, who had been in the United States during the initial invasion, took full control of the operation.57 Under Kagame’s instruction, the insurgents split into two groups.58 The smaller group returned across the border via the same route as before, this time hiding in the dense forests and marshes of Akagera National Park, from which they could launch attacks that would destabilize eastern Rwanda. The larger group traveled to the western end of the Ugandan border with Rwanda before crossing over to hide in the mountainous Virunga National Park, from which they launched attacks on Ruhengeri and other parts of the Rwandan northwest.59 One such attack in January 1991 freed over 1,000 political prisoners, many of them 53 Despite Museveni’s denials of involvement, U.S. intelligence shows that he was tolerant of the action and facilitated the flow of weapons and supplies to the insurgents. Jones, supra note 9, at 28; see also Prunier, supra note 8, at 97-98. 54 While the French deny direct involvement in combat, this claim is disputed. Moreover, it is, at a minimum, clear that Paris poured an impressive amount of military aid and equipment into Rwanda and that French troops played key roles in manning checkpoints and securing the FAR’s position. See, e.g., Jones, supra note 9, at 30; Prunier, supra note 8, at 94, 96, 100-14; Tebbs, supra note 1, at 57-58, 72, 86-89. Additionally, as Clapham notes, “Connections between the two regimes were strengthened by the personal relationship between Mitterrand’s son Jean-Christophe, who was in charge of the unit for Franco-African relations in the Elysée, and Habyarimana’s son JeanPierre.” Clapham, supra note 42, at 199. 55 Jones, supra note 9, at 30. 56 Id. 57 Colin M. Waugh, Paul Kagame and Rwanda: Power, Genocide, and the Rwandan Patriotic Front (2004). 58 Jones, supra note 9, at 31. 59 Id.

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RPF sympathetizers, and garnered a useful capture of supplies and munitions.60 Importantly, it also served as a signal of intent to the Habyarimana regime and the country at large.61 B. Early Efforts to Stop the War War-stopping efforts began at some level from the moment of the RPF’s initial invasion in October 1990. Indeed, just seventeen days after the RPF had first crossed the border, Belgian, Tanzanian, Ugandan, and Government of Rwanda (GoR) officials met in Mwanza, Tanzania, where they charted a regional war-stopping and peacemaking agenda. The parties agreed to continue the regional discussions on the refugee problem that had begun in 1988 but to place the Organization of African Unity (OAU) in charge of supervising and mediating the talks. This would involve particularly prominent roles for Rwanda’s neighbors, Uganda and Tanzania, and the Economic Community of the Great Lakes Countries (CEPGL), which was composed of Burundi, Zaïre, and Rwanda. More importantly, Museveni and Habyarimana agreed to include the RPF in direct negotiations, recognizing the group’s status as an interested party and the need to address the brewing conflict.62 Despite the somewhat dubious appointment of President Mobutu Sese Seko of Zaïre as OAU mediator a matter of days after his troops had bolstered the FAR counteroffensive against the RPF in October 1990, the regional war-stopping initiative was able to facilitate several meetings in the first two months of 1991. In advance of the refugee conference in Dar-es-Salaam on February 19, Museveni, Habyarimana, and Tanzanian President Ali Hassan Mwinyi met privately to discuss the conflict. Mwinyi and Museveni convinced Habyarimana, who already faced increasing democratization pressure from international lenders and donors, to sign the Zanzibar Communiqué, which included, alongside a restatement of his intention to resolve the refugee issue peacefully, “a commitment [. . .] to conduct a dialogue with the internal opposition.”63 This contributed to the growing pressure on Habyarimana to make real the cosmetic changes he had made to the political power structure in mid-1990 by granting substantive freedoms to opposition parties within Rwanda and initiating the transition to democratic rule. C. The Inefficacy of the Regional Efforts at War-Stopping The slew of summits and communiqués in the first three months of 1991 did little to stop the fighting. However, on the back of the ostensible progress toward real governmental reforms announced in the Zanzibar Communiqué, the parties eventually agreed on a cease-fire in N’Sele, Zaïre on March 29, 1991. The agreement included 60 Waugh, supra note 57, at 55. 61 Id. (noting the power of the Ruhengeri attack’s “message to the country’s political leaders”); Jones, supra note 9, at 31 (reporting that the attack made “a strong psychological imprint on the country”). 62 Tebbs, supra note 1, at 74. 63 Jones, supra note 9, at 55.

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the implementation of a regional force to police the cease-fire, which would be managed by five officers from each of the CEPGL member states, and five each from Uganda and the RPF. The idea was that the Zaïrians and GoR forces would balance the Ugandan and RPF forces, with the Burundian forces maintaining a neutral median point.64 However, debates over how the regional force could actually be implemented severely hampered the prospects for its realization. This perhaps should have been predictable for a force so heavily composed of interested parties and relatively devoid of neutral participation. In any event, Habyarimana did not wait for a conclusion; before the peacekeepers could be deployed, the FAR shelled RPF positions in the northeast, shattering the cease-fire and instigating further months of fighting between the two sides.65 During that time, the RPF was able to consolidate its positions in the north, as the FAR’s slew of offensives proved distinctly ineffective. Though not yet ready to launch a broader counteroffensive, the RPF had secured its base in the Virunga Mountains and endured little damage from the FAR campaign. Moreover, RPF forces continued to drain northern Rwanda of resources and productivity, thus further damaging an economy that was already on its knees and, in so doing, ratcheting up the political pressure on Kigali.66 With the parties locked in their respective military positions by mid-1991, Clapham observes, “[N]either side [. . .] had any interest in reaching a settlement: the government, secure in its military backing from France, was confident of victory, while the RPF had no interest in admitting defeat. As the conflict ground on, despite various disregarded cease-fires, the RPF became increasingly confident of its ability to maintain the insurgency.”67 As the stalemate solidified, the GoR’s primary imperative was to continue the rapid expansion of the FAR that it had begun as soon as the RPF forces first crossed the border.68 Indeed, despite the SAP agreed upon with the World Bank and the International Monetary Fund (IMF), the GoR was funneling the vast majority of its resources into the military budget in order to fight the war, placing increasing strain on its fragile economy, and blatantly violating the requirements of international donors upon whom it was dependent.69 The GoR and RPF were eventually drawn back to the regional negotiating table in September in Gbadolite, Zaïre. Though the process remained regional, this return to talks was achieved, in part, on the back of diplomatic involvement from the U.S. Deputy Assistant Secretary of State for Africa Irvin Hicks.70 The Gbadolite talks 64 65 66 67 68

Id. Id. Id. at 31. Clapham, supra note 42, at 201. Between 1990 and mid-1992, the FAR had grown from 5,000 to 50,000. See Prunier, supra note 8, at 113. 69 The Rwandan national military budget rose by 181 percent between 1990 and 1992. Prunier, supra note 8, at 159. 70 Hicks arranged a meeting between GoR and RPF representatives in Harare in mid1991. Though little progress was made in the meeting itself, it appears to have been an

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achieved two things. First, the N’Sele cease-fire agreement was reaffirmed, though with a more neutral peacekeeping team, operated under the OAU rather than the CEGL and led by Nigeria. Second, Mobutu’s leadership of the negotiation process was brought to an end as the parties came to recognize the need for neutral mediation. This cease-fire, however, proved as fragile as the last. Almost immediately, the FAR launched another major slew of attacks on the RPF strongholds in the Virunga Mountains. This series of assaults was, in the words of one commentator, “a total failure.”71 Moreover, galvanized by the FAR’s clear deficiency, the RPF launched its first major counteroffensive. No longer content with damaging the FAR and the local economy, the RPF took and held territory outside of the national park for the first time since crossing the border in January. By early 1992, the RPF had taken control of the préfecture of Byumba, known for its economic importance as the “breadbasket of Rwanda.”72 This severely exacerbated the economic pressures on Habyarimana’s MRND regime, weakening its capacity to fund the war, undermining its domestic stability as a sustainable government, and, consequently, leading to the amplification of both internal and external calls for democratization.73 Conversely, it strengthened the position of the RPF, which now controlled populated and politically important territory, and was no longer a mere insurgency confined to hiding in marshes, forests, and mountains, but a genuine party to the Rwandan civil war.74 D. Explaining the Failure of the Regional War-Stopping Efforts in 1991 Why did regional efforts at mediation in 1991 fail to make any real progress toward stopping or even slowing the war between the RPF and the GoR? There were certainly some clear mistakes on the part of mediating parties. However, it seems likely that no agreement—however “perfect”—could have stopped the war at this stage. Even if the war could have been briefly paused, achieving peace was surely beyond the mediators. The key problem was that the fighting had not yet exhausted either faction, and each believed it had a real chance of winning. Thus neither was ready to consider compromising its core aims, which, in each case, were fundamentally at odds with those of the other side. The most obvious mistake regional mediators made was to put a clearly nonneutral party (Zaïre) in charge of the negotiations. Although the negotiations were

71 72 73 74

important step in perpetuating negotiations and laying the groundwork for another round of cease-fire talks. See Jones, supra note 9, at 56. Id. at 31. Id. at 32. Id. International humanitarian law places great emphasis on whether a rebel organization controls “a part of [the State’s] territory” sufficient to facilitate “sustained and concerted military operations” in determining whether the conflict is grave enough for the laws of war apply. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), art. 1(1), June 8, 1977.

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ostensibly about the issue of refugee return in the Great Lakes region, the key issue was the resolution of the conflict between the RPF and the GoR. Given its participation in the conflict on behalf of the GoR, Zaïre was an implausible mediator. Nonetheless, it is unlikely that this biased intermediary made the difference between war and peace. After all, Zaïre’s position of authority should have made the RPF, not the GoR, cynical about the fairness of proceedings; yet, after each of the major cease-fire agreements, it was the GoR that first violated the terms. Moreover, the Gbadolite agreement in September removed Zaïre from its leadership role, and yet the ensuing cease-fire showed no more durability than its N’Sele predecessor. For similar reasons, it is equally unlikely that the poorly conceived composition of the initial peacekeeping force was dispositive. It is certainly difficult to imagine how a peacekeeping force run almost entirely by interested parties could work unless those parties have already built up a working relationship in the negotiations, such that they can coordinate patrols of each other’s military positions without igniting further conflict. However, the cease-fire was broken before the force was ever deployed, and, indeed, was broken so soon after the cease-fire was agreed that it is unlikely even a perfectly conceived peacekeeping force would have deployed in time to have made a difference. Moreover, a more neutral force was agreed upon at Gbadolite, yet the cease-fire was again broken quickly. A more likely explanation for the stumbling of these efforts to stop the war is that the parties were simply not ready to negotiate a peaceful compromise. At both the leadership and foot soldier levels, the RPF had experience in waging protracted guerrilla warfare against an embedded autocratic government. The insurgents had clandestine support from Uganda and had secured well-defended and strategically useful positions in Rwanda’s national parks. The RPF was, therefore, under little threat from the FAR. The leadership understood that the war was young and that patience was critical to success. They were more than happy to sit it out and engage in “hide-and-harass”75 tactics while the GoR slowly collapsed under the weight of its own economic and political problems. However, despite its troubles both at home and abroad, the GoR was significantly bolstered in its war efforts by the immediate and powerful support of France,76 which strongly favored the existing regime over the Anglophone invaders backed by Kampala.77 Moreover, the RPF’s demands simply went far beyond what was acceptable to Habyarimana and his governing akazu. Even as their grip on domestic power began to loosen as the country lurched from one crisis to the next, there was no willingness to undergo fundamental regime change. Indeed, the cosmetic changes Habyarimana had implemented in 1990 and 1991 were efforts to avoid precisely that. 75 Jones, supra note 9, at 31. 76 The French sent 150 troops into Rwanda within four days of the RPF invasion, and at least doubled that quota shortly thereafter. Id. at 30. Prunier counts up to six hundred French troops in Rwanda at this stage. Prunier, supra note 8, at 102. 77 See Mackintosh, supra note 14, at 465 (“The French government played a baffling role in relation to the former Rwandan regime, attributable in part to its preoccupation with retaining its influence on the world stage by fostering the community of French-speaking nations known as la francophonie.”); Prunier, supra note 8, at 102-07.

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With the prospects of a French-assisted victory still a real possibility, Kigali was not willing to give away the “little house.” Under these circumstances, even a flawlessly designed mediation process in 1991 was unlikely to succeed. The key problem was that both sides believed they had a good chance at victory, and as neither was yet exhausted, neither was willing to compromise on what were fundamentally divergent goals. E. Democratization, Political Fragmentation, and Radicalization in Kigali With Byumba under RPF control, and Rwanda’s economic fate still deteriorating, the MRND government grew increasingly unpopular at home.78 Moreover, now entirely dependent on international financing, which key sovereign donors, the World Bank, and the IMF had each made explicitly contingent on democratization, Habyarimana could no longer afford to make superficial concessions.79 In April 1992, he announced the formation of a second coalition government. This time the opposition parties were placed in ministerial decision-making positions and given real power; competitive elections were envisioned as the next step. This change would alter the dynamic of the conflict and of the efforts at peacemaking in critical ways, setting Rwanda on two fundamentally divergent paths. On the one hand, the domestic political shift opened the government to competition and debate and set the country on a path toward democracy and real negotiations with the RPF. On the other, however, it inspired a vicious backlash within the existing power elite, setting the country on a path to fanaticism that would ultimately lead to the 1994 genocide. First, consider the path to fanaticism. It is important not to overlook the rise in anti-Tutsi hate rhetoric that began as soon as the RPF crossed the border at Kagitumba in October 1990 and the acceleration of the ethnicization of the domestic political discourse as the RPF made territorial gains in 1991.80 However, the nature of the radicalization of Rwanda changed in April 1992. Profoundly threatened by the opening of political competition in Kigali, members of Habyarimana’s akazu, which had enjoyed an iron, authoritarian grip on Rwanda since 1973, formed a splinter party called the Coalition pour la Défense de la République (CDR). The new splinter party “brought together [. . .] MRND ministers, army chiefs, religious leaders, and enterprise leaders (among them those who would later establish an

78 Jones, supra note 9, at 32. 79 Andersen, supra note 48, at 448; Clapham, supra note 42, at 201; Jones, supra note 9, at 59, 62-64; Tebbs, supra note 1, at 105. 80 See, e.g., Hatzfeld, supra note 38, at 55 (highlighting the Tutsi-obsessed nature of speeches given by Habyarimana and his ministers in 1991); Jones, supra note 9, at 61 (noting that as soon as the war broke out, the GoR engaged in “such grave human rights abuses as mass arrests and large-scale killings of the Tutsi”); Prunier, supra note 8, at 109-10 (detailing the massacre of 348 Tutsi innocents just days after the RPF invasion in 1990); see also Jefremovas, supra note 13, at 29 (lamenting the 1990 GoR policy of detaining and persecuting Tutsi as implicit supporters of the RPF).

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important hate-radio station.) The CDR’s purpose was to stem the flow of power away from the ruling oligarchy.”81 The CDR revived the murderous language of the 1959 jacquérie, which had identified all Tutsi with the aristocratic elite that, first in its own right and later as the arm of the European colonialists, had subjugated the Rwandan people for decades. In an effort to halt the loosening of the akazu’s grip on power, the CDR waged a nationwide propaganda campaign to instill fear of the implicit motives and desires of the invading RPF (who, as the descendants of the aristocratic Tutsi elite that had fled in 1959, were clearly bent on returning the Hutu to subjugation) and hatred for the domestic Tutsi population and opposition parties (who would surely ally with the RPF forces upon their victory).82 These characterizations bore little resemblance to the political platforms advanced by either the RPF or the internal opposition, but that did little to stem the tide of hate rhetoric. When convenient, the CDR was even openly critical of the MRND for taking an insufficiently hard line against the purported Tutsi threat.83 This did little to obfuscate the true relationship between the parties; CDR members, driven by their fundamental goal of protecting the ruling class, “collaborated frequently” with their former party. 84 In addition to the propaganda campaign, the CDR, together with some akazu members who remained primarily affiliated with the MRND, created the impuzamugambi youth group and radicalized and expanded the existing MRND equivalent, the interahamwe.85 This took angry, young, unemployed men off of the streets, where they were protesting the government’s inability to remedy the economic depression, and instead channeled their rage directly toward the Tutsi—their presumed subjugators-in-waiting. Later these groups would be armed and trained to massacre civilians. They were ultimately the foot soldiers of the Rwandan genocide. As Rwanda placed one foot on the path to fanaticism, it placed another on the path to democracy and peace negotiations. Opposition parties had developed under the relatively superficial reforms of 1990 and 1991, among them the Mouvement Démocratique Républicain (MDR) (the descendant of President Kayibanda’s Parmehutu party), the Parti Libéral (PL), the Parti Chrétien Démocratique (PCD), and the Parti Socialiste Démocratique (PSD). However, for the first two years, they had had no access to political power. That changed virtually overnight in April 1992, as opposition politicians were given approximately one-third of the seats in the new coalition government.86 Most notably the new foreign minister was the MDR’s Boniface Ngulinzira. In stark contrast to the akazu, Ngulinzira was motivated by the need to consolidate the recent steps toward democracy that had reopened the door to power for his party. Though not a natural ally of the Tutsi-dominated RPF, he seemingly recognized that an international peace agreement with the insurgents 81 Jones, supra note 9, at 32. 82 Andersen, supra note 48, at 449. 83 Alison Des Forges, Leave None To Tell the Story: Genocide in Rwanda 53 (1999). 84 Id. 85 Id. at 56. 86 Tebbs, supra note 1, at 37.

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(who espoused democratic regime change in Kigali) had the potential to further the interests of his own party. Almost immediately, Ngulinzira moved for comprehensive internationally mediated peace negotiations with the RPF.87 F. The Internationally Mediated Arusha Peace Process It was no accident that the April 1992 transition breathed new life into the peace process. After the September 1991 Gbadolite cease-fire agreement had proven so profoundly inadequate, international actors began to consider taking over from what was clearly a failed attempt at the regional level. Of course, as noted above, the failures may have had nothing to do with the regional character of the 1991 peace efforts, but the assessment at the turn of the year was that it was time for international action. Operating separately, though in communication with each other, in late 1991 and early 1992 France and the United States began to hold a series of unofficial meetings with parties to the war or their backers.88 In January, U.S. Assistant Secretary of State for Africa Herman Cohen generated the support of the appropriate agencies to deepen U.S. involvement.89 It soon became clear to the Americans that the primary obstacle to negotiations on the GoR side was the akazu, which, after all, had the most to lose from any compromise with the RPF. They therefore reasoned that if the already existing international pressure on Rwanda to democratize could be heightened, and actors who had less to lose from compromise with the RPF brought into positions of influence in Kigali, the door to peace negotiations could be pushed ajar.90 As noted above, in early 1992 it would not take much additional duress to force Habyarimana to loosen his grip on power. After securing Ugandan cooperation in supporting international moves toward peace, Cohen joined the French foreign ministry’s Director of Africa and the Maghreb Paul Dijoud in June for a session with representatives of the RPF and new GoR Foreign Minister Ngulinzira. All parties agreed to comprehensive peace negotiations to be mediated by Tanzania.91 Thus, negotiations opened in Arusha, Tanzania, on July 12, 1992. What followed was a “marathon”92 of intensive and seemingly productive discussions. Just over a year later, on August 4, 1993, the GoR and the RPF would sign the final agreement, supposedly bringing an end to the civil war that had begun in October 1990. The Arusha process involved key actors at both the regional and international levels. President Mwinyi was formally the chief mediator, though he delegated much of the work to Ami Mpungwe, the Tanzanian Foreign Ministry’s director for foreign relations in Africa and the Middle East. Tanzania was the only neighbor of

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Jones, supra note 9, at 60-61. Id. at 57. Id. Id. at 63. Id. at 58. Prunier, supra note 8, at 159.

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Rwanda that was viewed as neutral between the parties.93 Yet, unlike an actor from outside the region, it had a strong vested interest in securing a sustainable solution. Tanzania would benefit from regional stability and stood to suffer a large influx of refugees if the war were to devolve into chaos. It was, in other words, a good choice for the role of mediator. Kagame stayed in the field controlling the military situation but sent a high-level multiethnic delegation including RPF General Secretary Théogène Rudasingwa, future Rwandan President Pasteur Bizimungu (one of the RPF’s leading Hutu), and RPF Vice Chairman Patrick Mazimpaka.94 The team was united and clear in its positions. The GoR delegation, by contrast, was an amalgam reflective of the new political landscape in Kigali. Representing the government were new coalition partners from the PL and the MRD (including Foreign Minister Ngulinzira), an old Habyarimana loyalist (Pierre-Claver Kanyarushoki), and CDR strongman Colonel Théoneste Bagosora, who would later play what many consider to be the leading role in orchestrating the genocide.95 The observer delegations to the Arusha talks had a distinctly more international flavor than their 1991 predecessors. In addition to key regional players, Uganda, Burundi, and Zaïre, the United States, France, Germany, and Belgium also sent teams, as did Senegal, Nigeria, and Zimbabwe. Additionally, the United Nations joined the OAU as a supranational observer. The United States worked particularly closely with Tanzania in facilitating dialogue and assisted both the GoR and the RPF with negotiating strategy as it sought to move the process forward.96 Although the French were clearly in favor of the GoR, they also recognized that the RPF now had the military advantage and that without French support Habyarimana’s government would almost certainly fall. They saw a compromise at Arusha as the best chance for retaining some elements of the regime and thus maintaining French influence in the country. Therefore, they encouraged responsible negotiation by the GoR.97 Uganda, having been convinced by Cohen of its own interest in successful negotiations, played a similar role on the other side, encouraging the RPF to persevere with the talks and accept reasonable compromise.98 Of the other delegations, neutral Senegal, which worked closely with Tanzania as a mediating party, and the United Nations, which provided specialist help on the refugee issue through the UN High Commissioner for Refugees (UNHCR), made important contributions.99

93 Uganda was seen as firmly on the side of the RPF and Zaïre firmly on the side of the GoR. As a Tutsi-dominated state, Burundi was considered partial to the RPF, and Kenya’s leadership was considered so hostile to Museveni’s regime in Uganda that Uganda’s support for the RPF almost automatically placed Kenya in the GoR camp. 94 Jones, supra note 9, at 72; Prunier, supra note 8, at 163. 95 See, e.g., Des Forges, supra note 83, at 5-7, 199; Prunier, supra note 8, at 240. 96 Jones, supra note 9, at 75. 97 Id. at 76-77. 98 Id. at 74. 99 Id. at 74-75.

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Peacekeeping and monitoring forces were at different times run by the OAU and the United Nations. The first point of order was to establish a new cease-fire.The N’Sele and Gbadolite attempts of 1991 served as the basis for a new agreement but were amended to reflect the RPF’s shift from a mountain-dwelling insurgency to a force that controlled economically significant, populated territory. Within two days of talks, the parties agreed to a cease-fire under which each side would retain control over the territory it currently held. The cease-fire was to be patrolled by an African nonregional peacekeeping force, the Neutral Military Observer Group (NMOG). NMOG was to be composed exclusively of neutral parties: Senegal, Nigeria, Zimbabwe, and Mali. Although the cease-fire was not observed meticulously, it did represent a fairly stable status quo over the following months, and from July 1992 to February 1993, the fighting between the RPF and the FAR was sporadic and of relatively low intensity.100 This facilitated real negotiations over the political issues at stake.101 Interestingly, this initial round of discussions also led to the creation of the Joint Political-Military Commission ( JPMC) in OAU headquarters in Addis Ababa, Ethiopia. Tebbs describes this as an “escape valve that allowed all parties [including NMOG] to discuss violations of the ceasefire without derailing the broader negotiations.”102 The result was that negotiations in Arusha stuck firmly to the agenda outlined by the Tanzanian mediators in July, while all manner of complaints and grievances could be diverted to the JPMC in Ethiopia. The Tanzanian agenda was ambitious. The goal was not simply to stop the war, but to build a sustainable peace. Thus, the parties were to come to agreement on the rule of law, power-sharing, the integration of the warring armies into a Rwandan military, and the repatriation of refugees.103 The first, and easiest, agreement was reached on the Protocol on the Rule of Law, which was signed a month into negotiations, on August 18, 1992. The parties quickly agreed on the protocol in large part because it was phrased in the abstract, affirming commitment to democracy, a multiparty system, pluralism, and human rights, while deferring the question of what that would mean concretely for Rwanda.104 In September, the first signs of clear division and miscommunication (or possibly manipulation) appeared within the GoR delegation. Ngulinzira put forth a series of proposals on power-sharing and political integration and cooperation. The RPF delegation indicated its provisional assent, though no agreement was signed. This was fortunate because it soon transpired that Ngulinzira had acted without Habyarimana’s consent.105 Whether Ngulinzira was trying to strong arm his own MRD agenda into the talks or whether there was a miscommunication, the episode exposed the divergent goals within the GoR. 100 101 102 103 104 105

Id. at 32. Tebbs, supra note 1, at 92. Id. Clapham, supra note 42, at 202; Jones, supra note 9, at 79. See Jones, supra note 9, at 80; Tebbs, supra note 1, at 75. Tebbs, supra note 1, at 101.

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Having pushed these differences to one side, the GoR returned to the issue of power-sharing in early October. In negotiations that lasted from October 6 to 30, the GoR and RPF delegations ultimately agreed upon and signed a protocol creating a transitional government.106 A key change from the existing system was that political power was to be shifted away from the president to the prime minister and a council of ministers akin to a cabinet. The president would essentially be relegated to a ceremonial head of state. The protocol called for consensus decision making.107 This October 30 protocol also contained an agreement to create a transitional parliament. Powers were to be divided between the government and the parliament, with each serving as a check on the other. The parties agreed that both the government and the parliament would be institutions of national unity that would last for a transitional period (ultimately set at twenty-two months)108 before democratic elections would mark the beginning of a new era.109 However, the allocation of power during the transitional phase was not finalized in the October 30 protocol. Instead, it was deferred to the next round of negotiations, which lasted from November 25, 1992, to January 9, 1993. In this round of talks, the parties created a classic government of national unity.110 Of the twenty-one ministerial positions in the council of ministers, five were to remain in MRND hands (including the minister of defense); five would go to the RPF (including the vice prime minister and the minister of interior); four would go to the MDR (including the prime minister and the minister of finance); and three would go to each of the PSD and the PL, with one assigned to the PDC.111 Habyarimana would remain in the now largely ceremonial position of president. A two-thirds majority of the council of ministers was to be required for governmental action, meaning at least four parties would have to agree if the government were to move on any given issue.112 106 Jones, supra note 9, at 80. 107 Protocol of Agreement on Power-Sharing within the Framework of a Broad-Based Transitional Government between the Government of the Republic of Rwanda and the Rwandese Patriotic Front, Oct. 30, 1992, available at http://www.incore.ulst.ac.uk/ services/cds/agreements/pdf/rwan1.pdf. 108 Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on Miscellaneous Issues and Final Provisions, art. 22 (Aug. 3, 1993), available at http://www.incore.ulst.ac.uk/services/cds/agreements/pdf/rwan1. pdf. 109 Protocol of Agreement on Power-Sharing within the Framework of a Broad-Based Transitional Government between the Government of the Republic of Rwanda and the Rwandese Patriotic Front, art. 23(A)(2) (Oct. 30, 1992), available at http://www. incore.ulst.ac.uk/services/cds/agreements/pdf/rwan1.pdf. 110 Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on Power-Sharing within the Framework of a BroadBased Transitional Government (Continuation of the Protocol of Agreement Signed on Oct. 30, 1992) (Jan. 9, 1993), available at http://www.incore.ulst.ac.uk/services/cds/ agreements/pdf/rwan1.pdf. 111 Id., arts. 55-56. 112 Protocol of Agreement on Power-Sharing within the Framework of a Broad-Based Transitional Government Between the Government of the Republic of Rwanda and

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Notably, no power was allocated to the CDR. The GoR delegation had pushed for the CDR’s inclusion in the transitional government, as had the French and Americans, both of whom seemed cognizant of the dangers of excluding powerful players from the process, no matter how unsavory their politics.113 However, the RPF argued that the CDR was simply the extremist wing of the MRND rather than a party in its own right and that its politics were anyway incompatible with the agreed standards of the rule of law.114 With the GoR divided and weak, and the RPF aggressive and savvy at the negotiating table, the RPF ultimately got its way, and the CDR was excluded. A similar pattern emerged in negotiations over the composition of the parliament. Ultimately, the parties agreed to allocate eleven members to each of the MRND, MDR, PSD, PL and RPF, four to the PDC, and one each to an assortment of twelve minor parties, including the CDR. A majority vote would thus require the agreement of members from at least four parties, just as was true for the council of ministers.115 The composition of the two institutions, therefore, represented a major victory for the domestic opposition parties, and particularly the MDR, and a catastrophe for the akazu. The CDR responded with disgust, claiming it had no intention of taking the one seat it had been given in the transitional parliament.116 One might ask why the GoR signed on to the protocol when Habyarimana’s power clique stood to lose so much. First, it is important to remember that the negotiating delegation was dominated by the MDR. Though Habyarimana had the power to “veto” any agreement made by the delegation by not signing the protocol, the delegation had a great deal of influence in framing the options available to him. Moreover, the president’s earlier refusal to endorse an MDR-designed power-sharing protocol had met with protests at home, and with his plummeting popularity Habyarimana could little afford to continue to obstruct progress toward peace. Second, it seems that Habyarimana might have been drifting away from the hardline stance of his erstwhile akazu, and it is possible that he no longer held out hope for a solution that would keep this oligarchy in power.117 Third, to the extent he remained aligned with the akazu, it seems unlikely that Habyarimina ever intended to abide by the peace accords. In November, he had disavowed the agreements as a

113 114 115

116 117

the Rwandese Patriotic Front, art. 21 (Oct. 30, 1992), available at http://www.incore. ulst.ac.uk/services/cds/agreements/pdf/rwan1.pdf; see also Jones, supra note 9, at 82. See Jones, supra note 9, at 81. Id. Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on Power-Sharing within the Framework of a Broad-Based Transitional Government (Continuation of the Protocol of Agreement Signed on Oct. 30, 1992), art. 62 (Jan. 9, 1993), available at http://www.incore.ulst.ac.uk/services/cds/ agreements/pdf/rwan1.pdf; Jones, supra note 9, at 82. Jones, supra note 9, at 82. During a period in mid- to late-1992, Habyarimana “was apparently conducting private negotiations with the RPF through a Jesuit priest, seeking to obtain assurance of amnesty for himself in return for his resignation.” Des Forges, supra note 83, at 96.

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“scrap of paper,”118 a month later his MRND joined the CDR and some other parties in denouncing the Arusha process as a “plan for treason,”119 and shortly after signing the protocol, the MRND and CDR led demonstrations against the Arusha agreements, and Habyarimana dismissed their force, claiming that they needed to be “re-negotiated.”120 These demonstrations were soon supplemented by a wave of violence, emphasizing the path of radicalization that Rwanda traveled simultaneous to its apparent progress to a peace settlement in Tanzania. In ten days in late January, over three hundred Tutsi civilians were slaughtered in northern Rwanda.121 This marked the first major breakdown in the Arusha process. Several days after the end of that particular spate of killings, the RPF launched a massive and extraordinarily effective offensive. Within a fortnight, it had doubled the territory under its control and had advanced to within twenty-three kilometers of Kigali. Were it not for the immediate response of French reinforcements (six hundred new troops in two waves),122 independent French and Tanzanian intelligence reports suggested the RPF would have taken the capital.123 The RPF claimed the offensive was a response to the unprovoked massacres on Tutsi innocents. Some analysts have suggested that it was instead a direct attempt to seize power.124 Whatever the RPF’s true motivation, however, the clear consequence of the attack was a fundamental shift in the power dynamic at Arusha. Due to their unified and aggressive negotiating team, the RPF had already held the upper hand in the peace talks before the February offensive. However, this comprehensive display of military superiority exposed for the first time the true fragility of the GoR’s hold on the country and made a mockery of the dramatic expansion in FAR recruiting over the last three years. Having been so publicly disparaging of the negotiations just weeks earlier, Habyarimana was personally calling for a return to the Arusha process by February 23.125 Perhaps unsurprisingly, the insurgents were not quite so keen, and it took a delegation sent to Rwanda from the UN Departments of Political Affairs and Peacekeeping Operations in March to convince the RPF to return to Tanzania to finish the negotiations.126 This had the effect of deepening UN involvement in the process—it had previously taken something of a back seat to the OAU. As Jones notes, the first consequence of this was Museveni’s suggestion in March to create and deploy the UN Observer Mission to Uganda-Rwanda (UNOMUR), which was established by the Security Council in June as a means to ensure that the RPF was 118 119 120 121 122 123 124 125 126

Id. Id. Id. at 97. Jones, supra note 9, at 82. Id. at 33. Id. at 83. Prunier, supra note 8, at 180. Jones, supra note 9, at 83. Id. at 34.

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not using Ugandan territory for military purposes.127 This later helped to pave the way for the eventual creation of the UN Assistance Mission for Rwanda (UNAMIR) to monitor and secure the transitional arrangements agreed at Arusha. Indeed, the parties agreed in April on the need for such a neutral international force once the transition got under way, though the details would not be finalized until closer to the time.128 While the parties returned to the negotiating table in Tanzania, Rwanda’s internal fissure intensified in the aftermath of the RPF offensive. The comprehensive manner of the insurgents’ dominance exacerbated the paranoia felt within the akazu. CDR leaders ratcheted up the hate rhetoric; on July 8, the infamous hate radio station Radio-Télévision Libre des Mille Collines (RTLMC) went on the air.129 Playing on the domestic population’s fears about Tutsi governance, the akazu sought to convert members of various opposition parties to their Hutu-power agenda. This may not seem an immediately plausible strategy. However, it should be remembered that these parties were not necessarily averse to fanaticism simply because they opposed an authoritarian government and saw democracy as their quickest route to a share of political power. Quite the contrary, the largest opposition party (the MDR) was the descendant of President Kayibanda’s radically anti-Tutsi Parmehutu.130 Whether as a consequence of the CDR’s continuing amplification of antiTutsi hate speech and propaganda, or as a natural result of purely internal politics, the MDR split into two factions: the “PowerGroup,” led by Froduald Karamira, espoused the former Parmehutu ideology of Hutu Power, and the more moderate faction supported the platform of MDR chairman Faustin Twagiramungu.131 Things came to a head in July, when the PowerGroup rejected Twagiramungu as the presumptive choice for prime minister of the transitional government (a post granted the MDR under the power-sharing protocol). In a power play for control of the MDR, no sooner was Twagiramungu designated prime minister-elect than he was excommunicated from his party.132 Karamira labeled him and other MDR moderates “puppets of the Tutsi.”133 MDR hardliners argued that as a nonparty-member he did not meet the key Arusha criterion for prime minister.134 The formation of fanatical splinter groups within each party widened the sphere of potential allies for the akazu. Moreover, it also allowed Habyarimana to argue that the agreed-upon transitional government was unworkable until the parties were able to sort out their internal differences.135 He could hardly appoint an MDR prime minister when the MDR did not have a prime ministerial candidate. This later allowed him to delay implementation of the accords once they were finalized. 127 128 129 130 131 132 133 134 135

S.C Res. 846, UN Doc. S/RES/846 (June 22, 1993). Jones, supra note 9, 83. Tebbs, supra note 1, at 83. Id. at 71. Des Forges, supra note 83, at 138-39, 202. Tebbs, supra note 1, at 77. Des Forges, supra note 83, at 138. Tebbs, supra note 1, at 78. Jones, supra note 9, 112; Tebbs, supra note 1, at 77-80.

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The MDR split was another example of a worrying pattern. A step toward peace with the return of the parties to the negotiating table after the RPF offensive was matched, once again, by a step toward the anti-Tutsi radicalization of Rwanda. As the delegations returned to the negotiating table in April 1993, the remaining items on the agenda were refugee return and the integration of the armed forces. Taking advantage of its newly exhibited military superiority on the ground, the “extremely able” negotiating team representing the RPF took a firm line on both issues.136 By June 9, the parties had agreed on a right to refugee return. Under the agreement, six months after the inauguration of the transitional government, a number of repatriation areas were to be identified and prepared for the arrival of returning refugees.137 Three months after that, the first wave of refugees would be allowed to return to Rwanda. If they had land that they had claimed within the previous ten years, they could reclaim that as property, but anything that had not been claimed within the previous ten years would no longer attach to the returning persons.138 The final topic for discussion was the military. This was perhaps the most difficult negotiation, in part because of the RPF’s aggressive bargaining posture. The GoR suggested a split of 15 percent RPF forces and 85 percent FAR to reflect the proportion of Tutsi and Hutu in Rwanda. The RPF scoffed at this figure, arguing that it was incompatible with its philosophy of unity and the rejection of ethnicity-based politics and governance. They proposed a fifty-fifty split.139 The GoR was equally dismissive of this counterproposal. However, the Tanzanian mediators sided with the RPF, agreeing that the facts on the ground made fifty-fifty seem a more reasonable starting point.140 Arguing from a position of weakness, the GoR was forced closer and closer to the RPF position until eventually they accepted a fiftyfifty split at the command level and a sixty-forty split among the forces in favor of the FAR.141 Full accordance was further delayed as the parties debated how far down the chain of command a position would be defined as a “command position.” After further deliberation on this issue, a deal was eventually announced on June 24 and sent to Habyarimana to sign.142 Habyarimana did not sign it. Indeed he rejected the proposals out of hand. Without the president’s approval, the agreement was null, so the two delegations returned to the negotiation table. Stunned and irritated by Habyarimana’s hubris, the RPF delegation disregarded his demands and instead increased their own, arguing that the sixty-forty split should be in favor of the RPF.143 The Tanzanians, Americans, and French intervened at this point, lobbying both sides to accede to the original agreement. Eventually they succeeded, but only by adding the stipula136 137 138 139 140 141 142 143

Clapham, supra note 42, at 203. Tebbs, supra note 1, at 76. Id. Jones, supra note 9, 84. Id. Id. Id. Id.

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tion that “command level” was to extend all the way down to field command—a significant boon for the RPF.144 Additionally, the agreement stipulated that the military would be divided between an army of 13,000 troops headed by an FAR commander, and a gendarmerie of 6,000 headed by an RPF commander.145 This entailed a massive reduction from the 28,000 FAR and 20,000 RPF forces currently in action.146 Habyarimana, his tail between his legs, accepted the proposal. This victory for the RPF was yet another devastating blow for the akazu, which now stood to lose control of the one institution of power on which its grip had not loosened throughout the years of political decline. Moreover, many of its members were soon to be rendered unemployed in the downsizing of the military, particularly the officer corps. With military integration now resolved, the Tanzanian mediation team had succeeded in generating a document that dealt with each of its original agenda items. This was an agreement intended to create the conditions for a sustainable peace in Rwanda. The final version of the Arusha Accords was signed by President Juvénal Habyarimana and RPF Chairman Alexis Kanyarengwe on August 4, 1993.147 IV. Stalling, Nonimplementation, and Genocide A. Stalling and Nonimplementation The final agreement has been called “‘a veritable coup d’etat’ for the RPF and the internal opposition.”148 Similarly, Jones contends, “[I]mportant elements of Arusha represented victories for the RPF rather than mutually acceptable settlements.”149 It is not difficult to see how this came about. Habyarimana’s regime was weakening under increasing political and economic pressure, often from both internal and external sources; the GoR delegation to Arusha was deeply divided, composed as it was of parties with very different, and indeed often contradictory, fundamental goals; the RPF was unified, forceful, and savvy at the negotiation table; and, most importantly, the FAR was heavily outclassed on the field of battle. However, there is a difference between being outclassed and being defeated. As Tebbs comments, The Accords were a victor’s agreement. The RPF had extracted major concessions at the negotiation table by means of military strength. However, the Front had demonstrated its potential military superiority rather than inflicting an actual defeat 144 Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on the Integration of Armed Forces of Both Parties, art. 144(2) (Aug. 3, 1993), available at http://www.incore.ulst.ac.uk/services/cds/agreements/pdf/rwan1.pdf. 145 Id. arts. 2, 85. 146 Tebbs, supra note 1, at 77. 147 Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front (Aug. 4, 1993), available at http://www.incore.ulst.ac.uk/ services/cds/agreements/pdf/rwan1.pdf. 148 Clapham, supra note 42, at 203. 149 Jones, supra note 9, at 74.

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Tom Dannenbaum on the government forces. The latter fell back but were not beaten. The coercive apparatus of the regime not only remained intact, but—in the logic of an armed peace—was strengthened. [. . .] The Arusha process did not deal with the losers to the agreement. The extremists were not co-opted into the political process, nor neutralized by other means. They remained in a position to wreck the entire edifice.150

Throughout the Arusha process, a step toward peace was matched by the CDR and its allies with a step toward the greater radicalization of the Rwandan population. Now that a comprehensive peace agreement had been signed, their fanatical agenda for retaining power became increasingly urgent. Under the stipulations of the Arusha Accords, the GoR was required to shift power to the transitional Twagiramungu government by September 10, 1993 (thirty-seven days after the final signing). The imperative for the akazu was to delay this deadline and use its remaining weeks and months of control over the Rwandan state to destroy the prospects for Arusha’s implementation. The radical forces in Kigali were helped in this regard by slow movement in the deployment of the UNAMIR peacekeeping force that was to secure the transition. By September 10, the Security Council had yet to approve UNAMIR. As a result, Habyarimana’s coalition government claimed it was unable to transfer power—there could be no transition before the forces were in place to secure that transition. After a protracted debate over the size and mandate of the proposed force,151 the Security Council eventually agreed to deploy 2,500 UN peacekeepers by March 1994. Troops started arriving by the end of October. Importantly, UNAMIR had no intelligence unit and no real capacity to investigate acts of violence.152 Two other factors played a key role in facilitating the akazu’s agenda. First, as noted above, the internal divisions that the anti-Tutsi hate campaign had caused in the opposition parties made it easy for Habyarimana to find reasons to continue to delay the transfer of power. Each of the MDR, the PL, and the PSD was riven by the rise of fanaticism. Radical and moderate wings of each party competed for the political posts they had been allocated at Arusha. The inauguration of the new government was planned for January 5, then for February 23, and finally for March 24.153 As each deadline approached, Habyarimana cited internal divisions within the opposition parties as a reason to delay the inauguration, claiming the provisions of Arusha could not be met until the parties each unified around their representatives in the council of ministers and the transitional parliament. The second factor working in favor of the akazu was the turn of events in neighboring Burundi. Until October 1993, the akazu had been forced to rely on memories of the relatively distant past in order to drum up anti-Tutsi sentiment. This involved reviving and exaggerating events from colonial and precolonial Rwanda, as well 150 Tebbs, supra note 1, at 95. 151 The United States in particular was keen to keep the force down to a minimum size after American financing of peacekeeping operations had skyrocketed in the first two years of the Clinton administration. See id. at 111. 152 Id. at 114. 153 Id. at 80.

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as recounting a series of massacres of the Hutu by a minority Tutsi government in Burundi over the past fifty years.154 Most powerful among the chronicles from across the border was the 1972 genocide, in which between 100,000 and 200,000 Burundian Hutu were slaughtered by the army.155 Many refugees from the carnage of 1972, as well as other periods of violence, such as 1988, were now living in Rwanda, and needed little convincing of the dangers of a Tutsi government. While many would return to Burundi after the political situation defused, “[e]ach time a minority would remain, holding on to bitter memories of home while nurturing sharp night-and-day type of distinctions between good and evil.”156 However, the references to the horrors of Tutsi rule in Burundi were undermined by Burundian Tutsi President Pierre Buyoya’s decision to open the government to free multiparty elections in 1993 and by his readiness to step down when his opponent, Melchior Ndadaye, a Hutu, defeated him at the polls. Ndadaye’s government took power in June 1993, marking a watershed moment in Burundian politics.157 Soon, however, the hate-propagandists in Rwanda received a political windfall: [O]n 21 October 1993 the promise of the Burundi reform turned into a nightmare when elements from the all-Tutsi army murdered the Hutu president. Political violence swept the country and some 200,000 panic-struck Hutu crossed the border into Rwanda. The core message of Hutu Power began to sound credible to ordinary Hutu ears in Rwanda: power sharing was just another name for political suicide. History had ruled out political coexistence between Hutu and Tutsi.158

Tens of thousands of Burundians were killed in the massacres precipitated by Ndadaye’s assassination. While there were fatalities among Hutu and Tutsi alike,159 the violence was ethnic, so the almost exclusively Hutu wave of refugees into Rwanda brought with them terrified accounts of Tutsi killers. The stories broadcast over RTLM were similarly one-sided. The assassination itself needed little embellishment. The tragic events in Burundi mobilized many Rwandans who had not been fully won over by the hate rhetoric of the past months and years. Moreover, it gave the akazu a huge population of new unemployed (and largely Tutsi-fearing) men to incorporate into the interahamwe and impuzamugambi,160 which were by now well into their transformation from political youth groups to death squads. 154 Id. at 49; Berkeley, supra note 9, at 113. 155 See, e.g., Berkeley, supra note 9, at 110; René Lemarchand, Genocide in the Great Lakes: Which Genocide? Whose Genocide, 41 Afr. Stud. Rev. 3 (1998); Mamdani, supra note 8, at 215. 156 Id. at 205. 157 As Des Forges reports, Ndadaye’s election—making him the first Hutu to hold the office—was “hailed as a great victory by Hutu in Rwanda as well as Burundi.” Des Forges, supra note 83, at 138. 158 Mamdani, supra note 8, at 215-16. 159 Des Forges, supra note 83, at 4-5. 160 Mamdani, supra note 8, at 205.

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The planning for genocide began in earnest. RTLM started to broadcast messages about ridding the country of Tutsi, government orchestrators started to purchase machetes in large numbers, and lists were compiled with the names of political opponents and Tutsi civilians. On January 11, 1994, UNAMIR sent a now infamous cable to the UN Secretariat in New York. In the cable, UNAMIR commander Roméo Dallaire reported that a Rwandan government informant had come forward with information about a plot to assassinate politicians at the inauguration of the transitional government.161 In the ensuing chaos, the extremists planned to provoke an encounter with Belgian UNAMIR soldiers, hoping that a few Belgian deaths would precipitate the evacuation of the entire force. From that point, over forty interahamwe teams each comprised of forty men would sweep through Kigali killing all Tutsi on the recently compiled death lists. The informant estimated that these death squads could kill around 3,000 persons per hour.162 Dallaire repeatedly requested equipment and reinforcements over the following months. However, New York largely ignored his warnings. The January 11 informant was dismissed as unreliable and moved by ulterior considerations.163 Moreover, having so recently suffered significant political fallout from the botched mission in Mogadishu, neither the United Nations nor the United States was keen to get involved in Rwanda beyond the existing commitment. B. The Assassination of Habyarimana, Genocide, and the Withdrawal of Peacekeepers At eight o’clock in the evening on April 6, 1994, Juvénal Habyarimana was assassinated. Along with his new Burundian counterpart, Cyprien Ntayamira, Habyarimana was returning from a summit in Tanzania when his plane was shot down as it prepared to land in Kigali. All passengers were killed. Mamdani compares the event to the assassination of Ndadaye less than a year earlier: If Ndadaye’s death was taken as a prophetic lesson that the only alternative for the Hutu was between power and servitude, that there could be no power sharing between Hutu and Tutsi, Habyarimana’s death was a signal that the hour to choose between power and servitude had indeed struck.164

Within hours of Habyarimana’s death, military officers, administrators, and interahamwe leaders across the country dispatched death squads with instructions to kill political opponents and all Tutsi, from the newborn to the elderly. Where necessary 161 Memorandum from Major-General Roméo Dallaire, Commander, UN Assistance Mission for Rwanda to Major-General Maurice Baril, Head of the Military Division, Department of Peacekeeping Operations of the United Nations (Jan. 11, 1994), available at http://www.enotes.com/genocide-encyclopedia/january-11-cable-generaldallaire-un-headquarters. 162 Tebbs, supra note 1, at 115. 163 Jones, supra note 9, at 114. 164 Mamdani, supra note 8, at 215.

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(as in the case of certain political opponents) the génocidaires had reference to the lists that had been compiled over the preceding months.165 In other cases, the killers were informed either by personal acquaintance with the victim or by the enduring legacy of Belgian colonialism—the ethnic designation on each individual’s mandatory national identity cards.166 The most efficient genocide in history was under way. The killing started immediately in Kigali, spreading to almost all of the préfectures within a day.167 Death squads, many of which were armed only with machetes, worked their way through the lists of victims with ruthless efficiency. Prime Minister Agathe Uwilingiyimana (MDR) was among the first of the political targets. Ten Belgian UNAMIR privates stood guard outside her home when the elite Garde Présidentielle (GP) arrived to kill her. The GP demanded that the Belgian soldiers put down their weapons. The soldiers, none of whom had any command authority within UNAMIR, considered the limitations of their mandate168 and did as they were told. For their troubles they were unceremoniously murdered shortly thereafter. The political or “priority” targets in Kigali were disposed of within thirty-six hours.169 The events promised by the January 11 informant had already been realized with grim accuracy. Sadly, the informant’s prediction as to the UN reaction would also prove prophetic. On April 12, less than a week into the genocide, Belgium informed the Secretary-General that it would withdraw its UNAMIR troops from Rwanda. The decision was announced to the Security Council the following day. Belgium immediately lobbied the Security Council to withdraw the entire UNAMIR force. As Tebbs reports, “The stance was widely seen as an attempt to legitimize its own withdrawal, but the Belgians were pushing on an open door. They were strongly backed by the Americans; the UK and France, though less vocal, also favored withdrawal.”170 Dallaire took the opposite perspective. He was convinced that he could stop the massacres and stabilize the situation if only given 5,000 troops.171 Exposed first-hand to the horrific events on the ground, Dallaire was unmoved by concerns that the UN force might take some casualties in the process. He explained, “My decision to remain was a matter of moral concern.”172 His perspective, however, was drowned out in New York, where, as Samantha Power argues, “the United States did much more than fail to send troops. It led a successful effort to remove most of the UN peacekeepers who were already in 165 166 167 168 169 170 171

Prunier, supra note 8, at 223; Tebbs, supra note 1, at 99. Prunier, supra note 8, at 249. Id. at 261. UNAMIR was not explicitly authorized to defend civilians. Prunier, supra note 8, at 243. Tebbs, supra note 1, at 127. Interview by Ted Koppel with Roméo Dallaire, Lieutenant-General (Ret.), Canadian Armed Forces, in Washington, DC (June 12, 2002), available at http://www.ushmm. org/conscience/analysis/details.php?content=2002-06-12. 172 Id.

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Rwanda. [. . .] [S]taying out of Rwanda was an explicit U.S. policy objective.”173 In a classic case of fighting the last war, memories of Mogadishu loomed large in the minds of American policy makers.174 When Secretary-General Boutros-Ghali presented the options with regard to UNAMIR on April 20, he suggested the force could be expanded by several thousand troops and granted Chapter VII powers, could be withdrawn altogether, or could be reduced significantly.175 Given the objections of several African nations to a full withdrawal, as well as Ambassador Madeleine Albright’s personal opposition to such a move, the United States lobbied for the third option. On April 21, the Security Council voted to reduce UNAMIR by almost 90 percent to 270 troops.176 It also decided that UNAMIR should focus primarily on the pursuit of a ceasefire between the GoR and the RPF, which had relaunched its offensive on April 8 as the massacres and the unwillingness of outsiders to step in became increasingly apparent.177 Dallaire managed to hold on to around five hundred despite the Security Council decision, but the damage to the United Nations’ deterrent capacity was significant. In three short months, the Hutu-power militants who temporarily controlled Rwanda, orchestrated a popularly executed genocide of startling devastation. Estimates of the death toll from the genocide range from 500,000 to more than one million.178 During the first six of the total thirteen weeks of the genocide, the Rwandan génocidaires were five times more efficient in their destruction of life than were the Nazi death camps.179 More Tutsi lives were taken in a day than American lives were lost in the entire Vietnam War.180 By the time international actors recognized the error they had made in downsizing UNAMIR and began to examine a reexpansion (in the form of UNAMIR II) and a unilateral intervention (in the form of Opération Turquoise), it was too late. C. RPF Victory and the Displacement of the War The genocide marked the ultimate failure of the Arusha peace process. The lives that peace was supposed to protect were being disposed of in ruthless fashion. A negotiated settlement was now quite clearly off the table; the killing would ultimately be stopped only by victory on the ground. 173 Samantha Power, Bystanders to Genocide: Why the United States Let the Rwandan Tragedy Happen, Atlantic Monthly, Sept. 2001, at 84, 86. 174 See id. at 90. 175 Special Report of the Secretary-General on the United Nations Assistance Mission for Rwanda, UN Doc. S/1994/470 (Apr. 20, 1994). 176 S.C. Res. 912, UN Doc. S/RES/912 (Apr. 21, 1994). 177 Prunier, supra note 8, at 268. 178 Des Forges, supra note 83, at 16 (estimating at least 500,000); Mamdani, supra note 8, at 5 (estimating 500,000-1,000,000); Prunier, supra note 8, at 265 (estimating 800,000850,000). 179 Prunier, supra note 8, at 261. 180 Jones, supra note 9, at 2.

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Two days after the assassination of President Habyarimana and the onset of widespread massacre, the RPF reengaged in hostilities with the FAR. The war was clearly distinct from the genocide, which occurred behind FAR lines and was perpetrated against defenseless civilians, not enemy soldiers. Though it took almost three months of fighting, the RPF again proved itself the superior force and ensured victory with its capture of the capital city on July 4, 1994.181 The fall of Kigali did not, however, mark the end of the war—it simply marked the displacement of the conflict. The RPF took control of Rwanda, but the FAR (and its interahamwe supporting cast) was neither fully defeated nor disarmed. A large proportion of troops and militia members managed to flee across Rwanda’s borders with swathes of civilians to refugee camps in Tanzania, Burundi, and, most consequentially, Zaïre.182 In Tanzania and Burundi, police and security forces were eventually able to take control of the camps and disarm those who needed to be disarmed.183 In Zaïre, however, the situation was very different—the Mobutu government appeared to retain 181 Robert M. Press, Rwandan Rebels Take Capital; France Establishes “Safe Area,” Christian Sci. Monitor, July 5, 1994, at 1. 182 Robert E. Gribbin, In the Aftermath of Genocide: The U.S. Role in Rwanda, 126-27 (2005) (“In July 1994, virtually the entire human population (almost entirely Hutu) of the northern prefectures of Ruhengeri and Gisenyi marched across the border to Zaire.”); Human Rights Watch, World Report 1995, available at http://www. hrw.org/reports/1995/WR95/AFRICA-08.htm#P397_139563 (“On July 4 the RPF took control of Kigali, prompting a mass exodus of Hutu soldiers and civilians to Zaire, Burundi, and Tanzania. In late October there were an estimated 1.2 million Rwandan refugees in Zaire, 270,000 in Burundi, and over 500,000 in Tanzania.”). The success of the FAR and militia in escaping across the border in such large numbers without having to shed arms or supplies can, in no small measure, be attributed to the strategy of the French intervention force, Opération Turquoise, which entered Rwanda in the last week of June on the back of UN Security Council support after the failure of the international community to speedily upgrade the capacities of UNAMIR. Executing their purported humanitarian intervention to stem the genocidal killing in Southern Rwanda, the French secured the South-West of the country, where they were able to protect those civilians that remained from any final killing sprees as the FAR rapidly retreated into and through the region. However, in order to maintain the humanitarian safe-area status of the newly dubbed “Zone Turquoise,” the French demanded that the RPF not enter the region. With the Turquoise forces holding the line against RPF troops that were pursuing the fleeing FAR, and Kagame’s men unwilling to engage the French militarily, the Hutu ex-government forces were given a buffer zone that protected them as they retreated. While the French and RPF troops stared each other down, “[w]ithin the zone [. . .] the embrace of local Hutu leaders proved something of an embarrassment [for the Turquoise forces].” Tebbs, supra note 1, at 143. As Jones notes, “By declaring a safe zone and threatening to respond to any incursion into it, Turquoise effectively created a sanctuary for retreating leaders of the genocide, as well as some retreating FAR units. This allowed a portion of the genocide movement to leave Rwanda intact, allowing them to establish a presence inside Zaire (near Bukavu) under less military pressure than they would otherwise have been.” Jones, supra note 9, at 125. 183 Gribbin, supra note 182, 136 (“In Tanzania and Burundi, local police or military took control of camp security and disarmed the refugees. Camp management, both from the UNHCR and Rwandan sides, reported to regional authorities.”).

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old loyalties to its erstwhile ally. Indeed, even though there were Zaïrian camps that were entirely military in composition, Mobutu did little to pressure the ex-GoR forces to give up their arms.184 Quite the contrary, these strongholds were supplied afresh by the Zaïrian government.185 With the international community unable or unwilling to do anything about this situation, the new Rwandan government ultimately took military action, with the RPA joining Laurent Kabila in the first Congo War against Mobutu’s Forces Armées Zaïroises (FAZ) and the ex-GoR’s FAR and interahmwe.186 It is beyond the scope of this chapter to begin an analysis of the wars in Zaïre/Democratic Republic of Congo (DRC). However, it is important to note that those wars are in many ways a direct outcome of the way the war in Rwanda ended. V. Why Did Arusha Fail and What Could Have Been Done Differently? The Arusha Accords were designed not merely to stop the war between the RPF and the GoR, but to create the conditions for a sustainable peace by resolving the fundamental disagreements that seemed to be at the root of the conflict. In the thirteen weeks following Habyarimana’s assassination, that hope for peace was obliterated in a most catastrophic fashion, and since then the knock-on effects in the DRC have produced one of the bloodiest wars in modern history. Why did Arusha go so badly wrong? 184 Id. (“In Zaire [. . .] police, gendarmes, and military all proved incapable of taking control of security. They were incompetent in the first instance, but had also been bought off, and were further cowed by Hutu military prowess.”); Human Rights Watch, supra note 182 (“By the end of 1994, soldiers of the former Rwandan army and members of the militia were terrorizing the refugee camps, particularly in Zaire. Unrestrained either by authorities of the former Rwandan government or by authorities of the local government, they were murdering, raping, and stealing at will.”). 185 Tebbs, supra note 1, at 172 (“The refugees established themselves in a corner of Zaire remote from central authority and possibly any system of accountable governance. Soldiers and militia carried their weapons with them; those who were disarmed by Zairian troops at the border were usually able to recover or replace them with the assistance of other Zairian forces.”). 186 See, e.g., Gribbin, supra note 182, at 142-221 (describing Kagame’s management of the war in the Congo during Gribbin’s time as U.S. Ambassador in Kigali); Jones, supra note 9, at 125 (“The presence in eastern Zaire of the remnants of the deposed Rwandan regime hugely destabilized that specific region and, later, the wider subregion: remnants of this force continue to bedevil peace efforts in central Africa to this day.”); Guy Martin, Readings of the Rwandan Genocide, 45 Afr. Stud. Rev. 17, 18 (2002) (“Eight years on, with the Great Lakes region still in turmoil and the Democratic Republic of Congo (RDC) torn asunder by a war involving six other African countries (including Rwanda and Burundi), experts are still grappling with the aftershocks of this seismic event.”); Filip Reyntjens, The New Geostrategic Situation in Central Africa, 26 Issue 10, 10 (1998) (“Since 1995, Rwanda has confronted a problem of deteriorating security, especially in the three prefectures of the west, targets of commando operations that— at least in part—emanated from Zairian territory. Faced with the international community’s inability to control the armed elements among Rwandan refugees in Kivu, Kigali began running out of patience in early 1996.”).

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Three core factors are responsible for the demise of the Arusha Accords. First, the failure to deal with the akazu through incorporation into the Arusha solution, particularly with respect to the protocols on the transitional government and the integration of the military, spurred the still-powerful group to sabotage the accords. The RPF’s military superiority on the ground garnered it a victor’s agreement, but it had not yet won the war. Second, the problematic relationship between the democratization pressures and the peacemaking pressures from the international community generated a significant fissure between the GoR negotiating team and the Rwandan president and his military. Finally, an insufficient UNAMIR force, even prior to the Belgian withdrawal, meant that the alternative to incorporating the akazu into the transitional arrangement, namely, containing it with military force, was ultimately impossible given the conditions on the ground. The obvious but central thread that links these three factors together is the fact that the Arusha Accords would not implement themselves. Peace required that the warring parties execute the promises they had made at the negotiating table. To the extent they were unwilling to do so, a third party was required to do it for them, and UNAMIR was not equipped to perform that function. The underlying problem, then, was that the Arusha Accords did not represent a mutually acceptable agreement—one “which enjoyed the active support of the key parties which were needed to implement it.”187 The primary reason for this was the failure to incorporate the akazu into the solution. Deplorable though their rhetoric and behavior undoubtedly was, the fact of the matter is that throughout the Arusha process they retained control over the military, the civilian bureaucracy, and much of the political arena in Rwanda. Unless those circumstances were to change dramatically, Habyarimana’s cooperation and that of his inner circle would be essential to the successful implementation of the accords. Of course, it would be wrong to say that the akazu was excluded from the process at Arusha. Habyarimana had to sign off on all protocols, and it was his name that represented Rwanda in affirmation of the final accords. Moreover, Colonel Bagosora attended the Arusha meetings as the CDR representative on the GoR delegation. However, despite these procedural safeguards, the final agreements—particularly with respect to the transitional government and the military—were entirely incompatible with the akazu’s priorities. In the proposed transitional government, a coalition of the 1993 domestic opposition and the RPF would be sufficient to override the MRND in both the council of ministers and the transitional parliament. Habyarimana would be reduced to a ceremonial head of state, with the MDR prime minister taking over the running of the government. And the CDR was essentially excluded from the transitional institutions altogether. In the proposed integrated military, the RPF would be the FAR’s coequal in terms of command positions, and large numbers of both troops and officers would have to be discarded. Ultimately, Arusha “constituted a fundamental redistribution of political cards.”188 This agreement was unthinkable to members of the akazu, many of whom still had a lot to lose 187 Clapham, supra note 42, at 196. 188 Filip Reyntjens, Constitution-Making in Situations of Extreme Crisis: The Case of Rwanda and Burundi, 40 J. Afr. L. 234, 235 (1996).

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from such a transition, even after years of economic and political decline had weakened their previously unchallenged hold on power. The most important reason for the disjuncture between the apparent safeguard of having akazu elements involved in the negotiation process and reaching agreements acceptable to the akazu was the dominance of the RPF on the battlefield. When Habyarimana and his oligarchs went about undermining the agreement on the transitional government immediately after having signed it, the RPF launched the February offensive, forcing the GoR back to the table with an impressive show of military might. This power dynamic then carried through to the discussion over military integration. As a result of the RPF’s military superiority on the battlefield, Habyarimana was forced to sign agreements that were unacceptable to his inner circle. He had no choice because his troops were simply incapable of fending off the insurgency. The French were all that kept the RPF from taking Kigali. Since the French were committed to the Arusha process, Habyarimana could not afford to block progress at the negotiating table. This meant promising to carry out distasteful future reforms in exchange for preventing immediate total military defeat and the subsequent imposition of potentially even more severe reforms. Habyarimana clearly understood that there is a fundamental difference between promising future concessions and participating in the realization of those concessions. Recognizing that acceding to the RPF’s demands would buy time and that ultimately the agreements would not enforce themselves, the president decided to sign the Arusha Accords and work to create a scenario in which they would not be implemented. As Clapham notes with respect to peace negotiations in general, “the relative bargaining strength of the parties at the negotiation stage might well bear little relationship to their capacity to implement or obstruct the settlement once it had been reached.”189 This was certainly the case in Rwanda. In mid- to late-1993, the akazu was a spoiler playing for time. The members of Habyarimana’s inner circle knew that they could not win the war on the battlefield, so they had no choice but to agree to the RPF’s terms at Arusha. Their capacity to spoil the process, however, was considerable. They retained control of the military and the bureaucracy. Moreover, they were operating in an ethno-political context that was fertile for radicalization and in which the demographics were strongly in their favor. Lemarchand observes, “genocide came to be seen increasingly [. . .] as the only rational option, and [. . .] [implementing] Arusha, as synonymous with political suicide.”190 Crucially, however, although implementation of Arusha may have appeared suicidal, it was only through signing those very Accords that the akazu secured time and space to avoid the kind of political outcome that Arusha specified. For the limited cost of providing the RPF empty promises (albeit on the international stage), the akazu made critical gains: The [RPF’s] loss of control over territory [. . .] encompassing not only the areas seized in February 1993 but all of the territory which the RPF could have occupied 189 Clapham, supra note 42, at 197. 190 René Lemarchand, Rwanda: The Rationality of Genocide, 23 Issue 8, 10 (1995).

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in consequence of its military superiority—enabled extremist factions [. . .] first to organize themselves for the genocide during the long [negotiation and transition] period [. . .] and subsequently to implement it in the aftermath of the April 1994 killing of Habyarimana. Had the RPF advanced, the territory under the control of the central government, and hence the scale of the killings, would have been greatly reduced.191

Could the akazu have been incorporated into the solution in a way that would have deterred them from playing the spoiler role? The Americans, the French, and even longtime RPF ally Ugandan President Museveni, supported the GoR in its demand that the CDR receive real representation in the institutions of the transitional government.192 This suggests that they believed the akazu could and should have been incorporated better than it was. However, the RPF stood firm on the issue. Even before the February offensive enhanced its negotiating power, it was unwilling to accept the political participation of anti-Tutsi extremists in a transitional government. Given this intransigence, one has to consider whether there was a feasible agreement that would have incorporated the akazu sufficiently to deter spoiling, and yet remained acceptable to the RPF. Radical members of the akazu founded the CDR with the purpose of ethnicizing the political discourse and radicalizing the population in a way that would undermine both the RPF and the internal opposition. Given the RPF’s core objectives, it seems quite plausible that the RPF would have preferred to continue the war than endorse an agreement that would incorporate the CDR into the transitional solution. In that sense, if the failure to incorporate the CDR made the peace unworkable, this may simply reflect the unworkability of a peace settlement in this situation rather than the faulty design of the peace settlement that was “agreed upon.” This leads to the second problem with the Arusha process. Although the CDR may have been fundamentally incompatible with the RPF, it is important to remember that prior to the conflict, Habyarimana and the akazu had not always taken a fanatical anti-Tutsi stance. That feature of their politics was instigated by the RPF invasion and was accelerated markedly by the steps toward democratization in Kigali. As argued above, the RPF and GoR were both insufficiently exhausted and overly optimistic about victory to allow any of the 1991 peace negotiations to work. However, it is not clear that such an impasse would have lasted indefinitely, particularly as the RPF grew in relative military strength. As long as the GoR had not defined its central purpose in starkly ethnic terms, there may have been room for negotiation, at least with some of the less radical members of the akazu (Habyarimana himself may have been an example of such an individual). The CDR, however, defined itself fundamentally as the “anti-Tutsi” party, and thus annulled any chance of a mutually acceptable agreement. As Jones argues, this demonstrates the danger in “bringing new actors into the process whose presence undercut the position of key moderates within the Rwandan 191 Clapham, supra note 42, at 205. 192 See Jones, supra note 9, at 81 (discussing French and American support); Tebbs, supra note 1, at 96 (discussing Ugandan support).

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regime.”193 The CDR was created as a reaction to the domestic opposition that had suddenly gained significant power in the coalition government. Facing threats from two directions (the RPF and the domestic opposition), an increasing number of akazu members felt a radical strategy was necessary for survival. In pursuing such a strategy, they may well have made a mutually acceptable agreement with the RPF impossible. Aside from spawning the CDR, the impact of the move toward a coalition government meant that the delegation technically representing the GoR at Arusha did not represent the president or the military and political oligarchy upon which his rule had long rested. In other words, the GoR delegation did not represent the actors who would be most essential to the implementation of any agreement. There were akazu representatives at the talks, but the opposition parties (and the MDR in particular) drove the process. Indeed it is possible that the CDR encouraged this situation as it only served to further the appeal of radicalization back in Kigali. The consequence was a “mediation process [that] gave a status to its participants that only very inadequately reflected their popular support or military strength.”194 At the time, it seemed that granting power to minority parties was a boon for the peace process because the new foreign minister, Boniface Ngulinzira, was immediately more receptive to negotiations than his predecessor had been. However, this was because Ngulinzira had no interest in the existing power structure and had nothing to lose and everything to gain from agreeing to severe reductions in akazu control. With the MDR at the helm in Arusha, the solutions being sent to Kigali for the GoR’s assent required compromises that were extremely painful to the akazu. This contributed to the growing influence of the CDR in Habyarimana’s circle, as full repudiation of the Arusha process began to seem the only hope for a beleaguered ruling class. Jones contends, the reaction of the CDR and other anti-Arusha forces was deliberate, its purpose was to capture the political support of MRND members not already part of the extremist core, politicians from within the regime who had kept their options open through the Arusha process. These moderate forces now found themselves saddled with a deal that looked like a sellout, their regime reduced to minority-party status.195

Ultimately, the 1992 shift toward a coalition government in Kigali made peace seem easier and yet become harder, “lend[ing] credence to those who have challenged one of the orthodoxies of the 1990s: that democratization is necessarily a positive tool for the peaceful resolution of conflict.”196 The final failing of Arusha was UNAMIR. Partly as a result of democratization, a powerful extremist countermovement grew within Rwanda’s ruling class. Due to RPF battlefield dominance and opposition party control over negotiations, 193 194 195 196

Jones, supra note 9, at 4. Clapham, supra note 42, at 205. Jones, supra note 9, at 159. Id. at 165.

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this ruling class was forced to accept provisions that it found fundamentally unacceptable. The result was a paper agreement that one party sought immediately to spoil. Given the unwillingness of international actors, and France in particular, to let the RPF win the war on the ground, this meant that a neutral peacekeeping force was required to monitor and enforce the implementation of the provisions agreed in Arusha. Without one, the spoilers would be free to destroy the process. UNAMIR was inadequate for such a role. Shortly after the signing of the Arusha Accords, Roméo Dallaire led a reconnaissance mission to Rwanda to determine the requirements for a successful peacekeeping operation. The accords had specified that the neutral force should deploy within thirty-seven days of the document’s signing. It was clear from the start that that was an impossible schedule.197 Nonetheless, on Dallaire’s visit to Rwanda, officials stressed the importance of getting the force on the ground as soon as possible. Indeed, the UN Secretary-General recognized that a failure to heed that advice would “seriously jeopardize” the agreement.198 The considerable delay in deploying UNAMIR troops would ultimately give the spoilers more time to prepare for the genocide. Officials also emphasized the core importance of the neutral monitoring force to the success of the process.199 It was already quite clearly understood that there were elements willing to plunge Rwanda into chaos to undermine the agreement. On his return, Dallaire reported that an optimal mission would need 8,000 troops and that 4,500-5,000 was the “responsible minimum.”200 However, there was no appetite for that kind of force in New York. The United States, smarting from the failed peacekeeping effort in Somalia, suggested a total force of five hundred.201 The Security Council ultimately authorized the deployment of half of Dallaire’s “responsible minimum”—2,548 military personnel (2,217 troops and 331 military observers) and sixty civilian police. Moreover, even this reduced force was to be deployed in stages, starting with 1,428 on the ground. UNAMIR was not given the authority to “provid[e] security for civilians, track[] arms flows, [or] neutraliz[e] armed gangs.”202 And, despite its mandate to investigate noncompliance and investigate and report on the role of the Rwandan police and gendarmerie,203 the peacekeeping force was not provided with a strong intelligence capacity.204 When Dallaire was able to obtain useful intelligence, as in the case of the January 11 informant, the United Nations ignored it. Under such circumstances, it is difficult to see how UNAMIR could have had the capacity to deter or contain a spoiler as powerful as the akazu in Rwanda. Any such capacity it may have had imploded with the withdrawal of the Belgian contingent at the start of the genocide and the immediate push by the United States to 197 Des Forges, supra note 83, at 131. 198 Id. 199 Jones, supra note 9, at 105. 200 Id. 201 Des Forges, supra note 83, at 131. 202 Jones, supra note 9, at 107. 203 S.C. Res. 872, paras. 3(e), 3(h), UN Doc. S/RES/872 (Oct. 5, 1993). 204 Jones, supra note 9, at 108.

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remove or dramatically downsize the entire operation. There is now a broad consensus among the major international policy makers and diplomats of the time that the international community forsook the people of Rwanda in failing to intervene and stop the genocide.205 Given these explanations for Arusha’s failure, what could have been done differently to avoid the disastrous outcome, the ramifications of which continue to ravage communities in the Great Lakes region to this day? This is a difficult question, even with the benefit of hindsight. In the assessment presented in this chapter, stopping the war and making peace may have been beyond the capacity of peacemakers in 1992-1993 no matter what strategies they would have implemented. However, that is not to say things should not have been done differently. Steps could have been taken that would have made an end to the war more likely (if still a low probability), and, to the extent the conflict continued, would have at least limited the amount of death, and particularly innocent civilian death, that followed the breakdown of Arusha. First, and most important, the international community should not have placed such great importance on the “democratization” and reform of Habyarimana’s government in the middle of such a precarious security situation and with peace negotiations the leading priority. Of course, on the one hand, it is true that the coalition government accelerated the peace process. Arusha happened sooner, engaged each of the primary issues of dispute at a deeper level, and was completed faster than would have been the case had international negotiations proceeded with the parties composed and represented as they were during the regional negotiations of 1991. However, on the other hand, Arusha’s progress and success along these dimensions was false; the agreements were a mirage. The result of the democratization pressures was that the peace process was managed by actors (on the GoR side) who had no power to actually implement the agreement. They had little sway over the domestic bureaucracy and none over the military or the growing interahamwe and impuzamugambi youth militia. Without the opening of Habyarimana’s government to opposition parties in early 1992, the parties to the agreement would have been further apart in their aspirations, progress in negotiations would likely have been slower, and a peace agreement would certainly have been harder to finalize. However, any agreement reached would at least have been an agreement negotiated, framed, and confirmed by the parties who would have had to implement it. Of course, successful implementation would still not have been guaranteed. However, in clear contrast to the agreement hammered out at Arusha, it would not have been destined for failure by the very process that created it. The Arusha Accords were negotiated and framed on the GoR side by parties with divergent and even contradictory interests to those who had to implement them. When combined with Habyarimana’s inability to continue vetoing agreements put before him due 205 Des Forges, supra note 83, at 768 (“In May 1994, UN Secretary-General BoutrosGhali admitted that the international community had failed the people of Rwanda in not halting the genocide. From that time through 1998, when U.S. President Bill Clinton apologized for not having responded to Rwandan cries for help and Secretary General Kofi Annan expressed regret in vaguer terms, various world leaders have acknowledged responsibility for their failure to intervene in the slaughter.”).

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to the combination of military and economic pressures facing his government, this process virtually guaranteed an unworkable final agreement. Many of the radical elements of Habyarimana’s regime would likely have balked at the prospect of a government-sharing agreement with the RPF. However, it is important to recognize that the akazu itself was hardly monolithic. A cabinet that split power between the two parties to the conflict would have surely gained more support from akazu moderates than did a proposed cabinet in which the old regime retained less than one-quarter of the seats. Those moderates may then have been less likely to side with the CDR and other akazu radicals, and the influence held by the extremist wing of Habyarimana’s inner circle over the military and the domestic political discourse may have been somewhat tempered. This in turn would have reduced the capacity of those extremists to play the role of spoilers when the time came to implement whatever agreement the parties might have reached. Of course, it is quite possible that such an agreement would never have been reached, or that it would have taken a longer and more exhausting war to bring the parties to the table. After all, the RPF and Habyarimana’s oligarchy had very different, and possibly even irreconcilable, aims. The former wanted fundamental regime change, a role in the government and military, and the return of refugees; the latter sought to protect its grip on power, rejected democratization, and was deeply opposed to refugee return. Moreover, the RPF, having participated in a successful guerilla insurgency in Uganda, felt little need to compromise too early against a weakening foe. However, while an agreement may have been difficult and even unlikely between the akazu and the RPF, granting negotiating authority to a party that had no power to implement the agreement doomed the process from the start. Democratization in a country suffering under a corrupt and autocratic government is a laudable goal. However in the middle of a civil war, during efforts to bring the parties to the conflict to negotiate a peaceful settlement, moves toward democratization can disrupt the ability of the two militaries to communicate directly to each other at the negotiating table and may broaden and diversify the range of threats to the old regime. This has the twin consequences of making effective agreement between those who control the instruments of war impossible and pushing those old regime elements that might have been amenable to agreement under other circumstances to increasingly radical strategies for defending their diminishing hold on political power. The second change that should have been made to the Arusha process is that the RPF’s victor’s agreement without military victory should never have been allowed to stand. Either the RPF should have been allowed to win the war on the ground (which it almost certainly would have done in early 1993 without the deterrent of French intervention), or mediators should have more firmly insisted that the final agreement do more to assuage fears and concerns within the akazu. France played an unhelpful role in this respect. It stopped the RPF victory by placing troops in Kigali as the insurgents advanced on the capital in February 1993, but it encouraged the GoR to agree to an impossible peace. Once the RPF had demonstrated such clear military superiority, its willingness to compromise on its core demands lessened even further. However, as it had not won the war, those demands could only be met through mutual implementation. A victor’s agreement that requires mutual

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implementation inevitably creates a motive and an opportunity for spoilers—in this case, the radical akazu members who continued to control the FAR, the GP, and the Hutu power militia. The problem of the victor’s agreement may have been somewhat ameliorated if the parties at the negotiating table had been the parties that controlled the respective militaries and other instruments of coercion. In that sense, resolving the previously discussed democratization problem might have helped to mitigate this second problem as well. It is also possible that international actors could have put greater pressure on the RPF to accept slightly less aggressive terms. However, this point should not be overstated. From the RPF perspective, the terms of the Arusha Accords were not unreasonable when juxtaposed with the facts on the ground. Moreover, as noted above, the key mediators did try (unsuccessfully) to talk the RPF down from some of its more aggressive demands. The problem was that the RPF had shown its dominance and had no urgent need to reach an agreement to end the war. If anything, it was gaining strength as the war went on, in stark contrast to the FAR. From that perspective, there was simply no reason for it to accept anything less than a victor’s agreement. In hindsight, then, one might think that the optimal solution would have been to allow the RPF to win the war on the ground. In support of this argument, one might note that it is almost certain that an RPF victory in early 1993 would have preempted the genocide. There may have been massacres, but the nationwide genocide of 1994 took planning, organization, and tens (maybe hundreds) of thousands of willing foot soldiers. In early 1993 the plans had not been made, the weapons had not been distributed, and the people may not yet have been willing.206 For those reasons alone, it is quite clear that the genocide would not have occurred on anything close to the scale of 1994. However, had the RPF continued its February 1993 offensive to completion, the FAR may well have fled to Zaïre, just as it did in 1994, and this might well have ignited the First Congo War in much the same way as the 1994 flight of the GoR ultimately did in 1996. Moreover, while in hindsight it is easy to judge that the architects of the 1994 genocide composed a less desirable government than did the RPF, it would have been difficult to make such an assessment in late 1992 or early 1993. Absolute victory for either side at that point may have seemed quite dangerous to interethic relations. Therefore, while we can probably assume today that a 1993 RPF victory would have been desirable when compared to what ultimately transpired, it would have been difficult to make such a prediction with any certainty in late 1992 or early 1993. In that sense it is problematic to argue that a 1993 RPF victory is something peacemakers at the time should have facilitated. A fairer criticism would be that the mediators should not have been so quick to endorse an agreement that was so clearly destructive to all of the core goals held by a necessary partner in implementation. This leads to the third way in which the Arusha process might have been executed differently. Once a victor’s agreement was signed and it was clear that 206 Recall that the Burundian conflagration around Ndadaye’s assassination had yet to ignite.

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there was a strong incentive for the GoR to undermine and ultimately sabotage its implementation, the only way of containing attempts at sabotage (short of an RPF military victory) would have been through the quick deployment of a robust and appropriately endowed neutral peacekeeping force. As noted above, UNAMIR was deployed slowly, with too few troops, limited capacities, and an insufficient mandate. Had these problems been remedied, there would have been a greater chance that the force might have at least limited the impact of those who sought to undermine the agreement. It is important to keep in mind, however, that the reasons behind UNAMIR’s inefficacy were largely political and may not have been much influenced by the requirements on the ground. Indeed, once it became clear that the needs on the ground exceeded the capacities of the deployed force, the UN Security Council decided to withdraw the force rather than bolster it. As such, it is somewhat naïve to argue that this was a mistake in the peacemaking effort rather than a weakness that was knowingly accepted and even designed by the powerful members of the Security Council. Moreover, even a strong UNAMIR may not have been able to implement the Arusha Accords successfully. As Clapham argues, “The precipitate withdrawal of UN forces, under orders from New York, unquestionably condemned to death many Rwandans who otherwise could have been saved. But this is a very different matter from the claim that a stronger UNAMIR could have overseen the implementation of the Arusha settlement.”207 Saving lives is no small matter, and the success that the limited UNAMIR force did have in saving a number of Rwandans from slaughter should not be downplayed. A stronger force could undoubtedly have saved many more. Moreover, had UNAMIR been able to act on the intelligence it received in advance of the genocide, it may have been able to prevent the distribution of weapons and otherwise disrupt preparations for the massacres. These alone are more than reasons enough to have justified the deployment of a significantly expanded force. In terms of the implementation of Arusha and the achievement of peace, however, Clapham is likely correct in arguing that even a robust UNAMIR would have been unable to force such a comprehensive agreement on a government and military leadership that was so deeply opposed to it. The genocide was an all-or-nothing throw of the dice from an increasingly desperate regime. It exposed quite how willing members of the akazu were to risk everything in the hope of avoiding submission to the Arusha Accords. With a governing oligarchy characterized by that kind of intransigence, it is unlikely that even a robust peacekeeping force would have convinced the key players in the military and in the government to surrender docilely to the terms of Arusha. VI. Conclusion—Lessons for Peacemakers and War-Stoppers When the Rwandan genocide ended, there were the now-standard hopeful cries of “never again.” One way to aspire to that lofty goal is to learn from the failings of Arusha and apply those lessons to peace processes in the future. For while the war 207 Clapham, supra note 42, at 206.

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was clearly distinct from the genocide, a better-designed process of peacemaking and war-stopping would have averted the genocide or at least significantly curtailed its scope. The Rwandan tragedy provides two primary lessons for peacemakers and war-stoppers. The first and most important lesson from the failed Arusha process is that negotiations must occur between the parties to the conflict. It is those parties that ultimately must implement the agreement, and, therefore, it is those parties that must accept and even endorse the provisions. When one of the warring parties is represented by actors that do not share its goals and fears, the agreement reached will be a mirage—a false peace with little hope of realization or endurance. Although negotiations between the warring parties may often be harder than negotiations between one party and another’s loosely affiliated representatives, that merely reflects the real difficulties in making peace between groups with fundamentally divergent goals. To ignore these difficulties in order to reach more quickly what, on paper, appears to be a comprehensive end to the conflict, is to ignore the underlying dialectic that perpetuates the conflict in favor of a superficial achievement with no substantive weight. In this respect, external pressure to democratize or otherwise shift the internal balance of political power on one side of the conflict without shifting the control over the military and other instruments of coercion can be counterproductive in its impact on progress toward peace. Second, the difference between the balance of power on the battlefield and the balance of capacities to sabotage an agreement is an important one, and it is overlooked at the peril of the peace process. An agreement is not an outcome, but rather a plan for an outcome. Between the plan and the implementation, there is an opportunity for action to shift the dynamic in a number of directions. The parties to an agreement know this and may choose to exploit it. A party that is losing on the battlefield may agree to significant concessions at the negotiation table in order to stop the enemy’s advance but with no real intention of implementation. With the advance halted, it may then take action to undermine the agreement and change the dynamic of the conflict. Rwanda is one example of the way in which agreements that reflect the balance of power on the battlefield but ignore the balance of capacities to sabotage may create incentives that run counter to implementation of the settlement. Through paying close attention to each side’s capacity to sabotage, peacemakers and war-stoppers will be better able to distinguish agreements that are smoke-screens designed to buy time from agreements that have some hope of implementation. If no agreement is possible that does not create some incentive to sabotage— perhaps because the ascendant party is unwilling to compromise on anything less than a victor’s agreement, or because either party has a radical faction that it cannot control—it is possible that that incentive may be overcome by the deterrent capacity of a robust peacekeeping force. However, if such a force is unavailable, peacemakers must recognize that a victor’s agreement requires a victor. They should therefore choose either to allow such a victory to occur or to reject the agreement as untenable and continue negotiations in the hope that the balance of power shifts. There is no guarantee that incorporating these lessons into peacemaking and war-stopping strategies in the future will always bring peace to war-torn societies.

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However, had they been better understood and applied at Arusha, the probability of degeneration into mass atrocity would have been lowered considerably. Indeed, perhaps the final lesson of Arusha is that aiming for the perfect peace can blind one to the importance of avoiding catastrophe.

Chapter 4 War-Stopping and Peacemaking during the Malayan Emergency (1948-1960) Colby E. Barrett*

I. Introduction In 1948, ethnic Chinese Maoist insurgents began a campaign of violence and terrorism in the Malayan Peninsula before suffering defeat at the hands of British and Malay security forces twelve years later. Dozens of books and articles recount the events of the Malayan Emergency (the “Emergency”)—how it was shaped by waves of immigration, geography, colonialism, and world events like WWII and the Korean War—and many authors juxtapose the Emergency’s successes against later failures in Vietnam. More recently, U.S. policy makers and leaders in the armed forces have come to understand the strategies used during the Emergency as “[t]he purest example of the clear, hold, build model” against a determined counterinsurgency. This model is championed both in the recently published U.S. Army/Marine Corps Counterinsurgency Field Manual as well as the November 2005 National Strategy for Victory in Iraq. The reliance on strategies used during the Emergency in presentday operations in Iraq and Afghanistan is no coincidence; influential military leaders such as General David Petraeus and Colonels H.R. McMaster and John Nagl have studied the Emergency at length. Colonel Nagl even published a book on the subject. But is the victory in Malaya repeatable in other settings? With the United States currently fighting two wars against insurgents in Iraq and Afghanistan, a candid discussion of the Emergency, with an emphasis on the strategy and tactics employed, is particularly pertinent. After twelve years, 300,000 mostly British troops were able to rout a determined insurgency and create an independent Malayan state, *  



The author would like to thank Professor Reisman for his assistance and encouragement and Leslie Barrett for her editorial assistance. Colin H. Kahl, COIN of the Realm: Is There a Future for Counterinsurgency?, Foreign Aff., Nov./Dec. 2007, available at http://www.foreignaffairs.org/ 20071101fareviewessay86612a/colin-h-kahl/coin-of-the-realm.html. U.S. Department of the Army, U.S. Army/Marine Corps Counterinsurgency Field Manual, U.S. Army Field Manual No. 3-24, Marine Corps Warfighting Publication No. 3-33 (2007); National Security Council, National Strategy for Victory in Iraq, at 8 (Nov. 2005), available at http://www.whitehouse.gov/infocus/iraq/iraq_ national_strategy_20051130.pdf. John A. Nagl, Learning To Eat Soup with a Knife: Counterinsurgency Lessons from Malaya and Vietnam (2002).

K. Eichensehr and W.M. Reisman (eds.) Stopping Wars and Making Peace: Studies in International Intervention ©  2009 Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17855 7. pp. 121-146.

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one that has been described as “one of the least worst Islamic states in the world.” How this was accomplished is enormously relevant today. War-stopping and peacemaking are not synonymous, but efforts on both fronts were successful during the Emergency years and complemented each other. Unlike in many struggles against insurgencies, the first real war stoppage in Malaya coincided with a peace system vis-à-vis the Communist insurgents. War-stopping efforts in the conflict included the strategic, operational, and tactical victories that deprived the Communists, led by Chin Peng, of medicine, equipment, and recruits; resulted in killed or captured Communist troops; and eventually convinced the Communists that the struggle was unwinnable and that their only option was surrender. In short, total military victory. Peacemaking efforts contributed to military victory but centered on addressing the historic grievances of the Chinese residents of Malaya, improving their lot economically, and empowering them politically. Perhaps the most important realization during the Emergency was that the efforts directed at the economic and political welfare of those who would support the insurgents were at least as important—and perhaps more so—than efforts directed at killing, capturing, or starving the insurgents themselves. Less apparent in 1960, but very important today, is the lesson that sometimes negotiations, international intervention, and other war-stopping efforts are not the best means to end an insurgency and create a stable, independent state. In struggles where a mostly “legitimate” government can be identified and the other party lacks significant external support, allowing violent struggle to run its course may precipitate the best long-term conditions for a peace system. This is especially true when the violence employed by the legitimate side is “constructive” and unlikely to foster lingering grievances. For example, direct military action against armed insurgents would be an example of “constructive” violence, unlike, for example, indiscriminate reprisal killings of civilians. The latter form of violence would likely foment long-term grievances while the former may contribute to a peace system in the long term. The Emergency may be the clearest example of a struggle of a mostly legitimate government against an internal foe without significant external support—a struggle that employed “constructive” violence, avoided negotiations, and produced a long-term peace system. British efforts were mostly conducted without international scrutiny—the few media sources not controlled by the British were unlikely to find much audience outside the region and were certainly unlikely to garner much sympathy from Western viewers at the height of the Cold War. An important disclosure is warranted before proceeding. Like most sources on the subject, this chapter is unavoidably pro-British in perspective. The reason for this viewpoint is more than simple victor or pro-Western bias and stems from the fact that the British perspective is virtually inseparable from that of the international  

Mark Steyn, All the Good Things They Never Tell You about Today’s Iraq, available at http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2004/09/19/do1902. xml. War-stopping is any cessation of active violence, whereas peacemaking is “a qualitative change in the objectives and expectations of the belligerents.” W. Michael Reisman, Stopping Wars and Making Peace: Reflections on the Ideology and Practice of Conflict Termination in Contemporary World Politics, 6 Tul. J. Int’l & Comp. L. 5, 16, 24 (1998).

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community at the time. Unlike today, the international community in 1948 had few nongovernmental organizations (NGOs) that could mediate between the parties or speak out against British operations. The fledgling United Nations was active in the region as early as 1947 when its representatives brokered a cease-fire between Dutch forces intent on retaining their colonies and proindependence forces in Indonesia, but the United Nations had no reason to become involved in Malaya. Unlike the Dutch in Indonesia, the British in Malaya were committed to a stable, independent Malayan state. This mission meshed with the anticolonialist mission of the United Nations. If the United Nations had intervened in the struggle, it would likely have supported the British. .

II. Early History and Geography of the Malayan Peninsula (30,000 B.C.-1924) Multiple waves of immigration have left present-day Malaysia with a very diverse population. Ethnic Malays make up a slight majority of the population (50.4 percent) followed by ethnic Chinese (23.7 percent), indigenous peoples (11 percent), Indians (7.1 percent), and others including those of European descent (7.8 percent). An awareness of the populations in Malaya, as well as the peninsula’s geography, is critical to understanding the roots of the Emergency. A. Geography and Settlement South of Thailand on the Malayan Peninsula, Malaya consists of approximately 52,000 square miles of land area. At the beginning of the Emergency, approximately 80 percent of this land was uncultivated jungle. Year-round temperatures over seventy-five degrees Fahrenheit combined with heavy annual monsoon rains have removed soil nutrients over the eons, leaving the peninsula with very poor soil.10 The poor soil and has been blamed for the failure of Malaya’s first great empire (the Melaka), but it also played a role in the Emergency. Food production is mostly confined to the lowlands and is dependent on modern fertilizers. The lush but agriculturally inhospitable jungle forces its residents to practice an inefficient form of slash and burn agriculture, moving on to new fields after two years or less.11 The diverse ethnic makeup of the Malayan peninsula resulted from four distinct waves of immigration. Aboriginal Proto-Malays (genetically related to the Papuans 

Present-day Malaysia consists of the Malayan Peninsula south of Thailand (excluding Singapore) and the states of Sabah and Sarawak on the island of Indonesia.  Central Intelligence Agency, World Factbook, available at https://www.cia.gov/library/ publications/the-world-factbook/geos/my.html.  John A. Fairlie, British Malaya, 27 Am. Pol. Sci. Rev. 811-15 (1933), available at http://links.jstor.org/sici?sici=0003-0554%28193310%2927%3A5%3C811%3ABM%3E2.0. CO%3B2-X.  Nagl, supra note 3, at 60. 10 Jim Baker, Crossroads: A Popular History of Malaysia and Singapore 15 (1999). 11 Id. at 19.

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of New Guinea and the aborigines of Australia) arrived on the peninsula approximately 30,000 years ago. As early as 500 B.C., the first wave of Ethnic Malays came from Melanesia and rapidly pushed the indigenous peoples out of the coastal areas and into the dense inland jungles.12 The first Indian traders and missionaries arrived around 300 B.C., followed in approximately 1400 A.D. by the small groups of Muslim Arabs and Persians who introduced Islam to the peninsula. The first Chinese traders visited Malaya as early as 500 A.D., but these traders came in small numbers and adapted quickly to Malay society, taking Malay wives and adopting local ways of life. In the nineteenth century, the largest influx of Chinese came after the British gained permanent control of the peninsula, as discussed in the following section. B. European Occupation In the sixteenth century, Portuguese traders established an outpost at Malacca only to be ousted by the Dutch one hundred years later.13 The first permanent British colony on the peninsula was established in 1786 at Penang. During the Napoleonic wars, the British captured the ports controlled by the Dutch East India Company,14 and, in 1866, Britain united Singapore, Malacca, and Penang as a distinct colony known as the “Straits Settlements.”15 As one of “five keys” said to lock up the world’s sea lanes, the Straits Settlements were indispensable to the British Empire.16 After the sea lanes were firmly in British control, British colonists began focusing on inland resources such as tin, rubber, and coffee. They negotiated treaties with the Sultan of Jahore and other smaller Malay sultanates to receive British “advisors” and join a newly founded federation under British protection. A 1919 treaty with Siam transferred four more states to British control, cementing British authority over most of the Malayan Peninsula. Although the British ruled the peninsula, they mostly left the Malay ruling class—which openly excluded “immigrant” populations such as the Indians and Chinese—in charge of civil administration and police forces. A variety of factors drove the massive waves of Chinese immigrants into Malaya in the nineteenth and twentieth centuries. Internal forces in China, such as population increases, famine, and rising civil strife (combined with newly opened Chinese ports), pushed the Chinese to Malaya. Stories of wealth from previous immigrants and British demand for miners in the tin industry pulled young Chinese men to the peninsula, often as indentured servants. The British viewed the Chinese laborers with great admiration and were all too happy to receive them. The Chinese were described as “not only the largest, but the most industrious and useful portion of the Asiatic part of the population.”17 Conversely, the British had little respect for the 12 13 14 15 16 17

Id. at 22 See Fairlie, supra note 8, at 811. Id. Id. at 812. The other “keys” included Dover, the Cape of Good Hope, Gibraltar, and Alexandria after the construction of the Suez Canal. Fareed Zakaria, The Future of American Power: How America Can Survive the Rise of the Rest, Foreign Aff., 18, 24 (May/June 2008). L.A. Mills, British Malaya: 1824-67, at 235 (C.M. Turnbull ed., 2003 [1960]).

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work ethic of the ethnic Malays. As one commentator put it, in the British view, “the Malays could not be induced to undertake hard and continuous work. [. . .] [f ]or all [the] requirements of a great commercial colony, they were useless. As in all tropical countries, it [was] impossible to use Europeans as manual laborers, and the recourse was therefore to the Indians and the Chinese.”18 For their part, the Chinese saw the ethnic Malays much as the British did and viewed any form of Malay rule with contempt. The population of British Malaya doubled between 1900 and 1930, mostly due to Chinese immigration. By 1925, more than one-third of the tin miners in the colony were ethnic Chinese, and others had formed a prosperous merchant class in the cities. They made up 38 percent of the total population and constituted the majority population in some states.19 The Chinese were not only miners and workers in the rubber plantations, they were merchants and investors. At the turn of the century, the Chinese controlled virtually all the tin mines in the peninsula,20 and, by 1938, they had over 300,000 acres of rubber trees under cultivation.21 Although statistically and economically a significant sector of the settlement’s population, most Chinese had little interest in Malay politics and accepted British rule as legitimate. Malaya was simply a place to make money; China was still their nation. Despite the British admiration for the work ethic and economic mobility of the Chinese immigrants, the immigrants were not without their flaws in the eyes of the British. Some British saw the Chinese as “on the whole law abiding [but possessing] two characteristics—a passion for gambling and for forming secret societies—which frequently [brought] them into collision with the straits government.”22 The latter trait, combined with the practice of forming tightly knit communities apart from general Malayan society, would eventually set a fertile stage for insurgency. III. The Foundations of Communism and World War II (1925-1947) The rise of communism in China and Southeast Asia prior to WWII had little effect on stability in Malaya, but the events of WWII emboldened, empowered, and organized those who would make up the nucleus of the insurgent forces. Postwar economic troubles increased the appeal of communism to the Chinese community. Most importantly, Britain’s defeat in Malaya at the hands of the Japanese destroyed any notion of British invincibility. The new British commitment to an independent Malaya presented what the Chinese feared most: subjugation by a Malay-dominated government.

18 Id. at 236. 19 See Fairlie, supra note 8, at 811-12; Nagl, supra note 3, at 60. 20 By 1930, the British controlled two-thirds of the tin industry. Baker, supra note 10, at 176. 21 Id. at 178. 22 Mills, supra note 17, at 239.

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Most of the ethnic Chinese living in Malaya identified nationally with mainland China. They left families there and planned to return after making their fortunes. After the 1911 revolution in China, Dr. Sun Yat Sen’s Koumintang (KMT) party sought funding from these overseas Chinese, setting up local groups in Singapore and elsewhere in Malaya by 1925. Communists infiltrated these groups both covertly and openly, and they separately founded the Communist South Seas Center in Singapore in the early 1920s. When Chiang Kai Shek expelled the Communists from the KMT in 1927 in China, a Malayan KMT purge and police raids in Singapore left the Communists in disarray. They regrouped in 1930 to form the Malayan Communist Party (MCP) under the Comintern’s Far East Bureau and were able to organize some small-scale strikes before police crackdowns again decimated their numbers. Energized by the worldwide great depression and anti-Japanese zeal, the MCP regrouped in 1936 and 1937 to organize a 6,000-worker strike at the Batu Arang Coal mines.23 The organizers were promptly deported to KMT-controlled areas in China, where they undoubtedly received a warm reception.24 By the end of 1939, The MCP claimed a membership of 37,000, half of whom were in Singapore.25 Further strikes and labor disruptions took place until July 1940. But when Mao’s Chinese Communist Party joined forces with the KMT on the mainland, the MCP and Malayan KMT followed suit, which formally stopped all opposition to British authority in Malaya.26 Despite these activities, commentators have remarked that Malaya in the 1930s was “a country without politics.”27 Rural Malays had little interest in state affairs, while the Malay aristocrats were secure as the symbolic rulers of the peninsula. The Chinese (wealthy and destitute alike) were intensely concerned with Chinese politics, but few intended to stay in Malaya or saw Malaya as their national home. They respected the benevolent rule of the British, whom they saw as the true (and invincible) rulers of the peninsula. B. British Defeat Japanese forces landed in Singora (Northwest Malaya) on December 8, 1941. Ten weeks later, the last British forces were driven from Singapore and Borneo.28 Japan defeated the “impregnable fortress” at Singapore and over 130,000 British troops with a speed that shocked the Allies and the inhabitants of Malaya alike. Regardless of the eventual outcome of the war, the British reputation in Asia and Malaya would 23 J.J. Raj Jr., The Struggle for Malaysian Independence 238 (2007). 24 Nagl, supra note 3, at 61. 25 Harry Miller, Jungle War in Malaya: The Campaign against Communism 1948-60, at 28 (1972). 26 Raj, supra note 23, at 240. 27 Baker, supra note 10, at 235. 28 Id. at 221.

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never recover. Soon after the fall of Fort Canning in Singapore, a member of the British parliament presciently stated, Our contact with Asia has been a long and on the whole honorable one, and during all those years the Union jack has never once been lowered. The story of that scene at Fort Canning will reverberate in the bazaars of India, on the plains of China and in the Islands of the South Seas when everyone of us has long since been dead and gone.29

Although defeat was swift, the British were able to make some preparations for the impending Japanese occupation before their ouster from the peninsula. On December 18, 1941, the secretary-general of the MCP (Lai Tek) met with British Officers in Singapore to coordinate the training of some two hundred Communists in jungle warfare and guerrilla tactics.30 These troops formed the core of the Malayan People’s Anti-Japanese Army (MPAJA), a force that grew to over 7,000 troops by the end of the war.31 C. Japanese Occupation Japanese occupation was difficult for every resident of Malaya. Before the occupation, the country imported 50 percent of its food and was heavily dependent on income from trade and exports such as tin and rubber. As Japanese shipping dried up, rampant inflation and starvation became common. In December 1941, a dozen eggs cost about thirty-six cents; by the middle of 1945 the same number cost about $450.32 People were forced to grow food wherever they could, and approximately 400,000 low-income Chinese fled the cities for squatters’ camps on the jungle fringes. During the occupation, some groups—most notably the Chinese, historic enemies of the Japanese—suffered more than others. The Japanese executed between 20,000 and 120,000 Chinese for “political” reasons.33 Wealthy Chinese mostly refused to cooperate with the Japanese, and large groups of poor Chinese laborers starved when the tin and rubber industries shut down. The Japanese offered the Malays, however, a more privileged position in the new Japanese order. The Malays kept their government positions and were given increased responsibility in the police and security apparatus, where many helped fight the almost exclusively Chinese resistance. Malay rulers justified their abandonment of the British for the Japanese by citing the original treaty obligations forming the federation. The Malays ceded their power in return for British protection from invasion and subjugation by foreign powers, and the British had defaulted. The only logical course of action was to replace the British with Japanese overlords who publicly endorsed the supremacy of the Malays, fos29 Donald Mackay, The Malayan Emergency: The Domino That Stood 11 (1997). 30 Nagl, supra note 3, at 61. 31 Id. 32 Baker, supra note 10, at 227. 33 Id. at 228.

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tered their distrust and dislike for the Chinese, and welcomed their cooperation. As the occupation wore on, however, Japanese oppression took on more equality, and even the Malays began to chafe under Japanese domination and forced labor.34 D. Malayan Resistance and Lai Tek Coordinated resistance to the occupation was an almost exclusively Chinese affair. The MPAJA, organized and led by the MCP, saw resistance to the Japanese occupation as a prelude to later operations against the British. They arranged food supply lines in the jungle, inserted operatives in villages, and organized the disenfranchised squatters into the Malayan People’s Anti-Japanese Union (MPAJU), a source of soldiers, intelligence, and supplies. Less than half of the MPAJA were Communists in 1941, but the MCP leaders made sure that political indoctrination was the first order of business, and harassing the Japanese was a distant second. The vast majority of a typical MPAJA guerilla’s time was spent in jungle camps absorbing Marxist-Leninist indoctrination, singing rousing revolutionary songs, and simply keeping house.35 Minor offensive operations aimed primarily at soft targets, including Chinese collaborators. According to casualty figures, the MPAJA killed around 2,800 Chinese “traitors,” while Japanese forces lost only 2,300 troops during the entire occupation.36 Since 1939, the leader of the MCP had been an interesting character named Lai Tek, who was both intent on solidifying his control over the party and adept at using the ruling powers to gain command. A British operative as early as 1934, Lai Tek quickly gained control of the MCP as police purges in the 1930s left the MCP in disarray—and him unmolested. Lai Tek learned the lesson of collaboration well: in 1942, the Japanese launched a raid on the entire MCP Central Committee, except Lai Tek, who escaped after he was “delayed” in getting to the meeting.37 Lai Tek’s tardiness worked in his favor one month later when the Japanese again raided the MPAJA leaders’ meeting in the Batu caves. Ninety of the most prominent MPAJA leaders were killed leaving Lai Tek the uncontested leader of the MCP and the MPAJA.38 Moreover, Lai Tek did not enter the jungle in 1941 with the rest of the MPAJA; instead he commanded operations from Singapore, unmolested by the Japanese. Perhaps Chinese cultural respect for those considered “lucky” prevented suspicions about these coincidences. In any event, by the end of the war his control over the MCP, its new military arm (the MPAJA), and its logistical support base (the MPAJU) was unchallenged.

34 35 36 37 38

Id. at 230. Mackay, supra note 29, at 47. That is, the Chinese who failed to support the MPAJA. Id. at 47. Id. at 24. Id.

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E. The Postwar Era By the end of the war, conditions in Malaya were ripe for Communist insurrection and a speedy victory, but several accidents of history delayed the onset of violence and likely sealed the fate of the insurgency before it even began. The Japanese were never defeated in Malaya, but Lai Tek’s MPAJA emerged from the jungle as heroes to the population, deftly accepting British accolades while preparing for the next armed struggle. The MPAJA publicly turned in only the weapons the British had air-dropped to them in 1945, while carefully preserving their jungle camps and caches of unaccounted-for weapons, and happily accepting a campaign medal and a payment of $350 per man from the grateful British.39 The country was still in economic disarray from the occupation and was led mostly by Malays who had collaborated with the Japanese, backed by the British who returned to the peninsula without their prewar “invincible” reputation. “Malay only” policies for admission to government services remained. All was not to return to status quo ante bellum, however. The British returned touting a new policy of eventual Malayan independence. In its initial form, the plan was to form a Malayan Union. Citizenship would be bestowed on all those born in Malaya or those who had lived there for ten years. Prospectively, the requirement was only five years.40 New citizens, including the Chinese, would have equal rights and opportunity for government service. Although the Malay rulers opposed this plan, the British were set to force it on them with threats of removal for collaboration during the occupation. After much protest from the ethnic Malays, however, the British scrapped the plan in 1948 in favor of a federation that mirrored the prewar conditions: politically powerful Malays, disenfranchised Chinese and Indians, and overall rule by the British.41 Economic and political conditions could not have been more favorable for revolution. Two important situations combined to delay the onset of violence until 1948. First, the Chinese were still subject to deportation to Chiang Kai Shek’s China for even minor infractions, something the Communists greatly feared.42 Second, Lai Tek, who was probably still working for the British, kept the party focused on labor union infiltration and legal political action and did not advocate violence to advance MCP causes.43 When Lai Tek absconded with much of the MCP’s funds in March 194744 (and Chiang Kai Shek became the apparent loser in the struggle for mainland China), obstacles to a change in MCP policy disappeared.

39 Chin Peng, soon to be the MCP secretary-general during the insurgency, was given the Order of the British Empire and a victory parade in London. Nagl, supra note 3, at 62. 40 Baker, supra note 10, at 237. 41 Barbara Watson Andaya, A History of Malaysia 268-69 (2001). 42 Mackay, supra note 29, at 51. 43 Keat Jin Ooi, Southeast Asia: A Historical Encyclopedia, from Ankor Wat to East Timor 828 (2004). 44 Id.

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On June 16, 1948, a fifty-year-old rubber planter named Arthur Walker was murdered by three Chinese militants in Sungei Siput.45 A few miles away, two other Europeans were bound to chairs and shot.46 The actions were carried out by the newly formed Malayan People’s Anti-British Army (MPABA) led by the MCP’s new secretarygeneral, Chin Peng. Thus began the twelve-year long “Emergency”47 that claimed 10,710 lives and ravaged many parts of the country. Today, the Emergency stands as a rare example of a successful counterinsurgency operation and the only Communist revolution in Southeast Asia that was contained.48 A. The World Setting Three extra-Malayan events shaped the setting for the Emergency. First, U.S. policy in the postwar period was to stockpile reserves of, among other things, tin and rubber.49 When the Korean War began in 1950, demand pushed prices to new highs (rubber shot from seventy-five cents per pound to $2.50 almost overnight), securing new tax revenues with which to fight the insurgents and improving the lot of the very Chinese squatters who were central to the success of the MCP.50 Second, the British refused to accept anything other than a total defeat of the Communists, and British support for the campaign never faltered. In Malaya, the British planters and mine owners armed themselves, and the civil service refused to flee. At home in Britain, resolve to fight the insurgents never wavered. Possibly due to the renowned patience of the populace or the absence of real-time media, the government did not face public outcry or calls to “bring the troops home.” The insurgency was all but defeated when Britain finally conceded that Malaya could achieve independence without a formal end to the Emergency.51 World events were not uniformly in favor of the British. When Mao Tse Tung’s campaign in China had achieved victory, the British government not only recognized Beijing but reinstated the Chinese Consulates in Malaya. To the average Chinese fence-sitter waiting to see who would eventually prevail in the Emergency, it seemed only a matter of time before the British would be defeated just as Chiang Kai Shek had been. To the average Communist soldier, it seemed probable that he would soon be fighting alongside regulars from the Chinese Red Army.52 45 1 E.D. Smith, Counter-Insurgency Operations: Malaya and Borneo 5 (1985). 46 Id. 47 Although unclear, the term “emergency” seems to have been chosen both to justify increased police power and may have justified recovery from insurance companies, who would not reimburse for acts of war. Baker, supra note 10, at 245. 48 Miller, supra note 25, at 17. 49 Mackay, supra note 29, at 27. 50 Id. at 96. 51 Timothy Norman Harper, The End of Empire and the Making of Malaya 347 (1999). 52 Mackay, supra note 29, at 84.

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B. MCP Strategy and Tactics The MCP strategy was crafted after Mao’s writings and envisioned three phases to the insurgency. First, labor intimidation through strikes against rubber estates and tin mines would be combined with terror strikes at isolated police stations and villages in order to cripple the economy.53 Second, the government would be forced from the rural areas; these “liberated” areas would then serve as bases of operations.54 Finally, operations would force the British to abdicate the country, and a MarxistLeninist (Chinese-dominated) state would be set up.55 Only the first phase saw any success, and the only “liberated area” established, the small town of Gua Musang, lasted only five days (still long enough for the MCP to collect taxes).56 In WWII, the MPAJA hid in the jungle and was supplied by the MPAJU, made up mostly of Chinese squatters in rural areas. This model was repeated during the Emergency, albeit under different nomenclature. The Min Yuen or “masses organization” replaced the MPAJU and was responsible for collecting funds, supplies, intelligence, and recruits as well as disseminating propaganda for the party. It levied taxes on the locals and collected supplies, which its members would hand over at preset collection points on the jungle fringes.57 The MCP strategy did evolve over the course of the campaign. In 1949, Chin Peng started to realize that the MPABA name served only to remind people of the MPAJA (an exclusively Chinese affair) and that the group had made no inroads into the Malay or Indian populations. He renamed the MPABA the Malayan Races’ Liberation Army (MRLA) in order to promote greater diversity in recruitment.58 In this regard, the new moniker was a failure, and the MRLA remained a minority faction of the Chinese minority population without widespread support. At around the same time, the British propagandists renamed the MCP/MPABA/MRLA simply as Communist Terrorists (CTs), a name that was certainly more effective than the MRLA at characterizing the struggle in the minds of the population. Communications were a nearly impossible task for Chin Peng. Without equipment and reliable courier routes, his only option was to decentralize command and give each unit commander a quota of trains derailed, ambushes conducted, rubber trees slashed, murders of soldiers/planters/police/traitors carried out, etc.59 Local commanders were free to substitute items for one another, which meant that there was essentially no coordination at all, simply many groups of CTs randomly attacking soft targets throughout the country.60 CT tactics were notoriously brutal and became more effective as the individual soldiers became more adept at jungle craft and handling weapons. A favorite ambush 53 54 55 56 57 58 59 60

Miller, supra note 25, at 18. Id. at 19. Id. Mackay, supra note 29, at 39. Id. Id. at 48. Id. at 49. Id.

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technique was to extend a position along the length of a roadway, ambushing an entire convoy at once. In the confusion, the ambushed troops would run across the road, only to find themselves impaled on sharpened bamboo stakes.61 The insurgents preferred soft targets like planters and trains, although direct offensives against the military and police were common (over 2,000 “contacts” took place in 1951 alone).62 Exemplary murders against those who refused to cooperate with the CTs were particularly brutal. Rubber tappers were abducted and cut into strips before being left on the roadside, overseers were nailed to trees before their throats were cut, and women and children were dismembered in front of their families.63 C. British Strategy and Operations There are three levels of war: strategic, operational, and tactical.64 By 1952, the British had devised clever and effective plans at each level, and the stage was already set to defeat the insurgency over the next eight years. Legislative measures were passed to control the press, increase the police powers of search and detention, allow for collective punishment, permit the deportation of non–native-born individuals, and institute a mandatory death penalty for illegal carrying of firearms.65 Over 10,000 known MCP members were deported in 1948 alone.66 British forces also endeavored to control the food and medicine supply in the entire peninsula; all meals were to be cooked and eaten centrally, and even shops were limited on the amount of uncooked food they could possess.67 Rationing of many items was mandatory, cans of food were opened upon sale, and everything down to the handlebars on bicycles was searched at thousands of checkpoints across the country.68 Rationing required registration, and the British issued every person over the age of twelve an identity card. That extremely effective measure allowed the government to control the movement of

61 62 63 64

65 66 67 68

Id. at 67. Id. at 101. Id. at 104. At the strategic level, the highest-level decision makers act to attain national strategic or military objectives. At the operational level, high-level military commanders conduct major campaigns or operations. Within these operations, tactical commanders fight individual battles. For example, during WWII President Roosevelt made the strategic decision to defeat the Japanese Empire. As part of this strategy, top military commanders including Admiral Nimitz and General MacArthur began an islandhopping operation toward Japan. This operation included individual battles, such as the battle for Iwo Jima, where individual commanders made tactical-level decisions on how to best clear the island of its defenders. Bruce Pirnie, An Objectives-based Approach to Military Campaign Analysis 3 (1996). Id. at 51. Milton Osbourne, Getting the Job Done: Iraq and the Malayan Emergency 8 (2005). Mackay, supra note 29, at 64. Id.

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people and goods; the CTs predictably reacted by killing those found with ID cards until this became a futile effort.69 The British also realized that they had to address the squatter camps if they were going to stop the CTs. Initially, low-level commanders carried out an informal policy of reprisal razing. Towns like Jalong, Lintang, Tronoh, Hailam Kang, and Kachau (with fifty homes and a population of over six hundred) all ceased to exist overnight in reprisal for nearby CT attacks.70 The British soon realized that these torchings were counterproductive. Early in the Emergency, they devised a new strategy that shaped the entire campaign. British troops would round up the squatters and give them a choice: deportation or resettlement in a “new village.”71 These villages would have everything the illegal squatter settlements lacked: secure title to land, police stations, schools, clinics, utilities, and security (including barbed wire fences and security lights).72 Home guards were to be raised and armed, Chinese liaison officers appointed, and the villagers given protection and the ability to earn a living free of intimidation. In the short term, these resettlements had a significant negative effect on the national economy.73 Food, rubber, and tin production fell dramatically. If the prices for rubber and tin had not increased at the same time, the effects could have been disastrous for the economy. In the long term, better infrastructure increased access to markets and credit facilities, and concentration of people increased political and social sophistication.74 Dispersed squatters living outside the law were transformed within a few years into citizens of the Federation, and for the first time they started to see themselves as part of the Malaya envisioned by the British rather than the one envisioned by the MCP.75 The British also saw a void in Chinese community leadership. The Chinese chambers of commerce, friendly societies, and associations were fragmented, so in 1949 the British formed the Malayan Chinese Association (MCA) in order to serve as a sort of Trojan horse to deliver British propaganda to the suspicious Chinese masses. Ironically, from the outset, the MCA served only to chide the British for scrapping the Malayan Union efforts and giving in to the Malay leaders. From its inception, the MCA was always seen as legitimate and independent by the Chinese, but not until later in the Emergency did the MCA play any real role in stopping the insurgency.76 Operationally, the British had some significant initial problems. In July 1948, British operations were based around large sweeps through the jungle, sometimes in brigade strength.77 As anyone who has been involved with even a company-size 69 70 71 72 73 74 75 76 77

Id. at 65. Id. at 52-53. Id. at 61. Id. John Coates, Suppressing Insurgency: An Analysis of the Malayan Emergency 1948-1954, at 93 (1992). Id. Id. Mackay, supra note 29, at 105. Id. at 55.

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jungle operation can attest, relative speed on large jungle operations against small units is nearly impossible. Although some CTs were killed, these large operations were almost uniform failures.78 The CTs operated in small groups and followed Mao’s command of “if you are attacked, withdraw.”79 The noise of a battalion coming through the jungle was enough to scare them off; only a platoon or squad could make contact with the CTs. The push (particularly by recently arrived senior officers nostalgic for WWII campaigns) to use large-scale operations was systemic throughout the British army in the early years of the insurgency.80 D. British Tactics As the Emergency went on, the highly adaptable British army began to conduct smaller and more decentralized operations. An early development was the Ferret Force unit, which consisted of small teams led by a British Officer, twelve volunteers (Gurka, British, or Malay), a communicator from the Royal Signals, an indigenous Dyak tracker, and a Chinese liaison officer.81 The teams would travel extremely lightly, coordinate closely with the local police, and wherever possible subsist off of the land.82 Although highly successful, these teams placed a strain on British logistics and were disbanded early in the Emergency. The legacy of small unit independence, however, helped shape eventual victory in the peninsula.83 British forces established a jungle warfare school to teach jungle craft, began aggressive patrolling with small units that included Dyak trackers, interpreters, and local natives, and stayed in areas long enough to gain local ascendancy.84 The British forces also began employing ambushes. Unlike the large-scale police-military sweeps, which the CTs did not fear because they would “come and go,” the Ferret Force-type groups would, according to the CTs, “go too far and stay too long.”85 British forces were extremely successful in using CTs who were captured or who had surrendered.86 It was not uncommon for these CTs to lead patrols to ambush sites and even give the order to fire.87 The CT knew that if anything went wrong, he would be executed, but if the ambush was successful, he would claim a reward for those CTs killed or captured, though the monetary reward was small.88 Some commentators have noted that the defectors were likely motivated by some perceived slight from the party leaders or simply by low morale rather than by the opportunity for monetary gain. The Communist Party leaders enjoyed better food, toiletries, 78 79 80 81 82 83 84 85 86 87 88

Id. Id. at 73. Nagl, supra note 3, at 67. Id. at 69. Id. Coates, supra note 73, at 148. Nagl, supra note 3, at 69. Coates, supra note 73, at 147. Miller, supra note 25, at 21. Id. Id.

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and luxuries than the average soldier, and were permitted to bring their wives and mistresses with them into the jungle.89 To make matters worse, female fighters, who constituted approximately 10 percent of the total force, were strictly off limits except to the party elite, who often took mistresses from their platoons.90 Psychological studies of surrendering CTs at the time concluded that most of those entering the jungle went for a mixture of factors: status, ambition, education, and comradeship, but rarely for ideological reasons.91 When the MCP failed to deliver, they saw themselves as naïve, and only drastic measures would cause them to regain face.92 E. The Briggs Plan In April 1950, Lieutenant General Sir Harold Briggs, a WWII veteran of the Burma campaign, was appointed director of operations for the overall Emergency effort.93 Ironically, the famous Briggs Plan that most historians recognize as the keystone of British success in Malaya94 was mostly nothing more than actually implementing the ideas and policies described above. What Briggs did bring to Malaya was a concept of unity of command (with him in charge of the overall effort) and the idea that coordination between the military, the police, the civil services, and other logistical agencies must occur on every level, from platoon commanders coordinating with local police stations (and sharing intelligence) to his own Federal War Council consisting of leaders from the aforementioned groups.95 For the first time, the counterinsurgency effort in Malaya had an effective command structure that would carry on through the rest of the Emergency.96 Perhaps Briggs is best known for his insistence on thoroughly controlling the Chinese squatters, both to deny the CTs access to food, medicine, and information, but also to turn the tide of public sentiment, pushing British propaganda and gathering information from the squatters.97 The Briggs Plan stated that the peninsula should be cleared of CTs, methodically from South to North by: (a) Dominating the populated areas and building up a feeling of complete security in them, with the object of obtaining a steady and increasing flow of information from all sources; (b) Breaking up the Min Yuen [Communist supporters] within the populated areas; (c) Thereby isolating the bandits from their food and information supply organization in the populated areas; 89 90 91 92 93 94 95 96 97

Mackay, supra note 29, at 107. Id. Id. at 130. Id. Nagl, supra note 3, at 71. Ooi, supra note 43, at 250. Mackay, supra note 29, at 89. Id. at 90. Id. at 89.

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Predictably, the methodical clearing operation turned into another large, ineffective “sweep and clear” operation (carried out in June 1950), but it seems that Briggs quickly learned that the “big battalion” mentality had no applicability in Malaya99 and that “Malaya is like a sponge” that could “engulf any number of [. . .] battalions.”100 In his discussion of Briggs, Lieutenant Colonel John Nagl presents a number of quotes that show Briggs’s transformation and eventual rejection of the sweep and clear mentality: [S]ome brigadiers and battalion commanders aren’t going to like what I’m going to tell them—that they won’t be able to use battalions or companies in sweeping movements anymore. They’ll have to reconcile themselves to war being fought by junior commanders down to lance-corporals who will have the responsibility to make decisions on the spot if necessary. We’ve got to look for the communists now, send small patrols after them, harass them.101

Briggs further recognized that, [t]he problem of clearing Communist banditry from Malaya was similar to that of eradicating malaria from a country. Flit guns and mosquito nets, in the form of military and police, though giving some very local security if continuously maintained, effected no permanent cure [unlike] closing of all breeding areas. In this case the breeding areas of the Communists were the isolated squatter areas.102

Despite moving in the right direction, 1950 and 1951 were the most violent years of the Emergency.103 The new villages were not fully populated until the end of 1951, and the camps looked more like concentration camps, surrounded with barbed wire and “guarded” by often disloyal Chinese Home Guards carrying shotguns given to them by the British.104 They were not economically or socially viable, and the increase in violence seemed to stem directly from concentrating the support base of the CTs in government-funded villages.105 In retrospect, the increase in violence was a symptom of the Communists’ impending demise—their increasing desperation for food and supply forced them into confrontation with police and security forces. Although the situation looked bleak at the end of 1951, in reality the Communists headed toward defeat. Indeed, Chin Peng spent the last part of 1951 disseminating the October 98 99 100 101 102 103 104 105

Nagl, supra note 3, at 72. Mackay, supra note 29, at 90. Nagl, supra note 3, at 74. Id. Id. at 74-75. There were 4,379 “incidents” in 1950 and 6,082 in 1951. Mackay, supra note 29, at 101. Id. at 97. Id.

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Manifesto, which called for a change in tactics in order to win the support of the population. Political activity, strikes, and infiltration of New Village committees would replace ID card destruction and random executions.106 By this time, however, the leaders in the jungle had no way to effectively infiltrate trade unions and had become quite adept at and dependent on random brutality. The British were also intent on a new direction in Malaya. They faced a circular dilemma: they could not win militarily without convincing the Chinese population that they would eventually prevail, which would not happen without military victory. After a meeting with Oliver Lyttleton (head of the British Colonial Office) and Winston Churchill, Field Marshall Montgomery penned the following: Dear Lyttleton, MALAYA We must have a plan. Secondly, we must have a man. When we have a plan and a man, we shall succeed: not otherwise. Yours sincerely, (Signed) Montgomery, FM.107

V. Tactical, Operational, and Strategic Victory (1952-1957) A. The Arrival of General Sir Gerald Templer The “man” was General Sir Gerald Templer, an aggressive and inventive tactician who had fought insurgents in Palestine before WWII and helped rebuild the German economy in the British Zone after the war.108 Shortly after taking command, Templer uttered the oft-quoted phrase, “The answer [to the uprising] lies not in pouring more troops into the jungle, but in the hearts and minds of the people.”109 Templer also viewed the effort against the CTs holistically, stating that “[a]ny idea that the business of normal civil Government and the business of the Emergency are two separate entities must be killed for good and all. The two activities are completely and utterly related.”110 To effectuate this, he had unprecedented authority over the civil services, security forces, army, police, RAF, Royal Navy (in coastal waters), and a mandate to bring the country to independence, as well as a reputation for energy and intolerance of sloth or incompetence.111 Templer quickly showed his character after a CT water pipeline attack and subsequent ambush of repair personnel near the town of Tanjong Malim. The general rounded up 350 community leaders from the town and surrounding countryside into 106 107 108 109

Id. at 116. Id. at 120. Id. at 122. Fifteen years after the Emergency ended, Templer referred to the quote as “that nauseating phrase I think I invented.” Richard Stubbs, Hearts and Minds in Guerrilla Warfare: The Malayan Emergency 1948-1960, at 1 (1989). 110 Coates, supra note 73, at 114. 111 Mackay, supra note 29, at 124.

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a hall at the local training college and proceeded to berate them with accusations of cowardice and connivance.112 Because they were not willing to accept their responsibility as leaders, the whole area would be punished collectively. For the next two weeks, house curfew lasted twenty-two hours per day, rice rations were cut in half, schools were shut, and all travel was forbidden.113 On the suggestion of a junior Irish police officer, anonymous ballots were handed out to each household to list known Communists.114 New security measures followed, including a well-armed and supervised home guard, barbed wire fences, and floodlights, and Tanjong Malim was a model community for the rest of the Emergency.115 To the Chinese fence-sitters, it seemed like an apparent victor might be emerging in the form of a spry and aggressive General. B. Politics Templer’s mandate when sent to Malaya was to prepare the Federation to become a fully self-governing nation. Much like his position in postwar Germany, he was again charged with bringing stable political structure to a bitter and violent society that had no experience with democratic institutions.116 Three unacceptable options had been put forth: (1) hand power over to the Malay rulers, who would likely oppress the Chinese, burn the New Villages and deport their residents; (2) form a new Malayan Union, in which the powerful Chinese would simply subjugate the Malays; or (3) partition the country based on the majority population in each state.117 None were acceptable to Britain, which insisted on a national unity government representing all parties. To this end, the legislature passed the Federation of Malaya (Amendment) Ordinance of 1952, granting citizenship based on birth to 1.2 million Chinese (60 percent of the population) and 180,000 Indians overnight and abolishing the previous definition of a “Malay” as one who (1) habitually spoke the Malay language, (2) professed the Islamic religion, and (3) conformed to Malay customs.118 In order to further a unity government, Britain also looked to the two fledgling political parties in the peninsula: (1) the United Malay Nationalist Organization (UMNO), a Malay organization led by Tunku Abdul Rahman; and (2) the MCA, led by Tan Cheng Lok. Probably the only commonality between the two parties was a perception that the British favored the other. The UMNO was upset about the resources going to the Chinese New Villages, and the MCA was upset that the brunt of the Emergency regulations fell on the Chinese community.119 In February 1952, unbeknownst to Templer, the two parties formed a temporary alliance to sweep the first municipal elections in Kuala Lumpur, which led to the 1953 formation of the 112 113 114 115 116 117 118 119

Id. at 126. Id. Nagl, supra note 3, at 89. Mackay, supra note 29, at 127. Id. at 141. Id. James P. Ongkili, Nation-Building in Malaysia: 1946-1974, at 89 (1985). Id.

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Alliance Party that then welcomed the Malayan Indian Congress (MIC) to form a true national unity party. The new party was led by Tunku Abdul Rahman, the former head of the UMNO and a newcomer to politics who quickly emerged as one of the best statesmen of his day.120 At the same time the political parties were coming together, elections were instituted at the lowest levels of government and rapidly progressed to the highest levels. With the help of adult civics courses and a push to teach democracy in the local schools, the population began to see the workings of government and distrust Communist propaganda.121 Direct involvement followed in May 1952, when legislation authorized the New Villages to elect local councils that could collect taxes for road building and other local projects (matched two for one with federal funds).122 Although the councils were often fronts for the Min Yuen, by 1955 most were on sound footing, further demonstrating to the Chinese that the government, not the MCP, could give them self-governance. Elections for city state and federal councils followed in 1953 and 1955, with the Alliance Party winning fifty-one of fifty-two contested seats in the July 1955 election and appointing Tunku Abdul Rahman chief minister.123 C. Military Doctrine and Operations The British established the Far East Land Forces Training Center in 1949 at Kota Tinggi (in Jahore), but no standardized doctrine or course of instruction in jungle warfare had yet been established.124 Templer set out to remedy the lack of commonality between units in doctrine and performance. He set up the Jungle Warfare School, which trained the advance parties of arriving units and tasked one of his staff officers with compiling the experiences of all the successful units into a comprehensive instruction manual in just two weeks.125 Anti-Terrorism Operations in Malaya, also known as “the book” or “the soldiers’ bible,” was sized to fit in a soldier’s pocket and contained information on the MCP order of battle, a history of Malaya, a copy of the emergency regulations, and most importantly, small unit tactics, such as searching, patrolling, ambushing, and intelligence gathering.126 Templer also reinvented the Home Guard. Until his arrival, they were trusted with batons and blue armbands and served only as wardens.127 Templer saw them fully armed and split into two groups: (1) Static Home Guards replaced local police as protectors for the New Villages; and (2) Operational Home Guards were divided into groups of twelve and routinely attached to army units in combat patrols.128 By 120 121 122 123 124 125 126 127 128

Mackay, supra note 29, at 145 Miller, supra note 25, at 105. Mackay, supra note 29, at 144. Id. at 146. Coates, supra note 73, at 32. Mackay, supra note 29, at 128. Nagl, supra note 3, at 97. Coates, supra note 73, at 121. Id.

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the end of 1954, 150 New Villages had full responsibility for their own security, and special units were even created out of surrendered or captured CTs who volunteered to fight against their former comrades. Templer also opened the civil service to all citizens, increased the size of the Malay regiment, and created a new Federation Regiment, which was open to all Federation citizens, including Chinese.129 The 1950s also saw the rise of the helicopter in warfare, though it was not decisive during the Emergency. Due to heat and humidity, the first Dragonfly helicopters could only carry one passenger but were useful in evacuating wounded or small loads. (On one occasion, a pilot refused to carry a consignment of eight severed heads to police headquarters because the weight was too great.130) Later on in the war, Sikorsky S-55s were used to carry up to four troops at a time with full kit, which greatly expanded the range of special operations forces into the deep jungle, where they could raid MCP agricultural plots and conduct patrols.131 D. Police, Intelligence, and Information Services Upon his arrival, Templer decided that three matters were of “absolute priority”: the organization and training of the police force, the improvement of intelligence, and the expansion and improvement of the information services.132 The police had expanded rapidly at the outset of the emergency and were increasingly relegated to a paramilitary role. Templer reorganized the command structure of the force and pushed for a more traditional role as a servant of the community rather than an enemy of the villagers.133 Also, at the outset of the Emergency, the Special Constabulary was tasked with protecting mines and plantations and serving as bodyguards for planters and managers.134 The approximately 39,000 isolated static constables were expensive and tactically unsound; the insurgents either avoided or killed them. Facing a budget crisis as rubber and tin prices fell from Korean War highs, Templer fired 10,000 constables and used the rest to form the Area Security Unit, which carried out aggressive patrolling in groups of twenty and proved highly effective as the Emergency continued.135 When Templer arrived, the intelligence services were fully staffed, but disorganized. The Special Branch of the Criminal Investigation Department was in charge of all human intelligence operations and shared its information with other police forces.136 The army produced intelligence on its own, including visual reconnaissance from light aircraft and patrols. Army human intelligence was limited to zealous platoon commanders asking locals for information in conjunction with the preparation 129 130 131 132 133 134 135 136

Id. at 122. Mackay, supra note 29, at 138. Id. Coates, supra note 73, at 123. Id. Id. at 124. Id. Id.

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of patrol plans.137 In 1952, Templer divided the insurgent operations into two “rings.”138 The inner ring was deep in the jungle and consisted of MCP leaders and CT soldiers. The outer ring was on estate fringes and populated areas that harbored Min Yuen and could be infiltrated immediately with Chinese secret agents, followed later by penetration into the inner ring.139 Military intelligence officers would be attached to the Special Branch in order to disseminate the information to army units and to push army information to the police. By 1954, nearly all “eliminations” were based on information coordinated through a revamped Special Branch.140 Much of the valuable intelligence came from CTs who had surrendered to government forces, which became more prevalent after Templer restructured the information services. Templer consolidated disjointed media sources under the authority of one psychological warfare specialist who was given a twofold mission:(1) convince non-Communist (but anticolonialist) citizens that the Federation of Malaya was worth fighting for and (2) lower the morale and increase the defection rate among CTs.141 To accomplish the latter goal, the British fitted aircraft with speakers to broadcast surrender terms to CTs in the jungle. Surrendered CTs acted as consultants in the production of pamphlets that the British airdropped over the jungle. Often these pamphlets included a picture of the former CT looking well fed and his story of how he saw through the fraud of communism and received good treatment from the government forces.142 The pamphlets were officially important to both factions: each pamphlet’s reverse side offered government immunity to its bearer,143 and MCP rules stated that possession of one was punishable by death.144 In order to win over non-Communist anticolonials to support the Federation, Templer was intent on establishing a reputation for truth and on “selling” the importance of recent events and advancements. In addition to controlling the Department of Information, the Emergency Information Services, the Malayan Broadcasting Service, and the Malayan Film Unit, the British fed stories to other media outlets highlighting several achievements, including the economic successes and protection available in the New Villages; improvements in Malayan education (from 1941 to 1953, numbers enrolled increased from 263,400 to 759,831); and, most importantly, the political advances and steps to an independent Malaya.145

137 138 139 140 141 142 143 144 145

Id. Id. at 125. Id. Id. Id. Mackay, supra note 29, at 130. Id. Coates, supra note 73, at 127. Id. at 126.

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Soon after his election as chief minister in 1955, Tunku Abdul Rahman offered amnesty to all CTs, even those who had committed murder under MCP direction.146 Chin Peng knew that the MCP was all but defeated militarily but sought a last-ditch effort to return from the jungle, lay down his arms, and bring the MCP into the political process as a recognized legal party.147 Most observers expected Chin Peng, a “devious and hard-bitten negotiator,” to overwhelm the inexperienced Tunku, but quite the opposite occurred: Tunku stated that if there was to be peace, then one side must give in, and he did not intend that that side be the government forces.148 Chin Peng went back into the jungle and subsequently fled to Thailand and later Beijing. In 2005, Chin Peng formally petitioned to return to Malaysia, which denied his petition.149 Tunku, however, left the negotiations and headed to London to negotiate the new constitution. Malaya entered the Commonwealth as an independent nation on August 31, 1957, and in 1963, the provinces of Sarawak, British North Borneo (Sabah), and Singapore joined to form the Republic of Malaysia, with Singapore later withdrawing. VI. Aftermath and Evaluation (1958-1963) By 1958, the MLRA in the jungle had completely disintegrated. By 1959, only seven hundred CTs remained active, and, of those, four hundred were in Thailand. The starving remainder continued to hide from the security forces until the end of the year. On July 31, 1960, the Emergency was formally ended. Soon after, British troops had an opportunity to exercise the lessons learned from Malaya, when on December 8, 1962, insurgents loyal to the president of Indonesia started a rebellion in Brunei. By December 16, British Far Eastern Command claimed that all major rebel centers had been occupied, and on April 17, 1963, the rebel commander was captured and the rebellion formally ended. Two questions arise when attempting to evaluate the Emergency. First, what efforts made the counterinsurgency in Malaya successful, and is the success repeatable? Second, in what situations is it best to avoid negotiations and cease-fires and let the violence run its course in order to facilitate a stable peace system? As to the first question, the U.S. Army and Marine Corps Counterinsurgency Field Manual attributes success in Malaya to sound strategy and tactics, adequate training, recruitment of police from both Malay and Chinese populations, and political efforts aimed at convincing both groups that an independent Malaya would repre-

146 147 148 149

Mackay, supra note 29, at 146. Id. at 147. Id. Andrew Symon, Malaysia’s Homesick Revolutionary, Asia Times, June 22, 2007.

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sent each group.150 Leonard Rayner puts forth a more cynical view about the efficacy of the British efforts: [T]he communists failed because their uprising was premature. They had no material backing from outside, and the Malayan Communist Party never devised a platform that appealed to a significant portion of the population. Above all, the rapid economic growth of Malaya due to the heavy demands for its produce in the intermediate postwar period, especially at the time of the Korean War, meant that ordinary workers were not prepared to forsake a growing prosperity for the nebulous blandishments of communism. [. . .] As so often in war, it was not so much that the victors won as the vanquished lost.151

The reality is likely somewhere in between: success in Malaya is attributable to both situational and strategic factors. The true lesson of Malaya may be that an overall strategy must be specific to the region and the battle at hand. Nowhere is that lesson more evident than in Chin Peng’s own failed Maoist strategy. According to Donald Mackay, Chin Peng relied on a pedantic application of Mao Tse Tung’s precepts and tactics in circumstances that were totally different from the conditions in which Mao had formulated them. [. . .] [By] going into the jungle Chin Peng voluntarily stranded his supporters and gave the Security forces the opportunity to sever his links with his base. There was, perhaps, no model at that time for urban guerrilla war to which he might have turned, but a greater leader would have devised his own theory.152

The inapplicability of strategy in dissimilar environments is not unique to Maoist revolutions. In his analysis of the American Army applying Malayan lessons to Vietnam, Mackay wrote, [M]uch of that Malayan experience made little sense when transplanted to a different battlefield where soldiers with different attitudes and different expectations were too often to mistake the form for the substance and be disappointed by the results—the attempt to replicate the resettlement program in the development of Strategic Hamlets is probably the most notorious example of an inappropriate and misunderstood concept being applied inadequately and doing more harm than good.153

Despite these cautions, Malaya does show that decisive victory against an insurgency is possible with the right approach and sufficient resources and resolve, provided that 150 U.S. Department of the Army, U.S. Army/Marine Corps Counterinsurgency Field Manual, U.S. Army Field Manual No. 3-24, Marine Corps Warfighting Publication No. 3-33.5 234-35 (2007). 151 Leonard Rayner, Emergency Years: Malaya 1951-1954, at 2 (1991). 152 Mackay, supra note 29, at 152. 153 Id. at 149.

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the greater population believes that (1) they would be better off politically, economically, and socially under those opposed to the insurgency; and (2) the defeat of the insurgents is very likely. Current British counterinsurgency doctrine, distilled from experiences in Malaya, sets out the following tenets to achieving these aims: 1. 2. 3. 4. 5. 6.

political primacy and political aim, coordinated government machinery, intelligence and information, separating the insurgent from his support, neutralizing the insurgent, and longer-term postinsurgency planning.154

Malaya shows that even if each of these precepts is followed with the same innovative spirit of the British army in the postwar era, during an economic boom, with only a minority of the population serving as an insurgent support base, counterinsurgency operations can succeed after many years and at great expense. The variable, then, is whether the resolve to fight can be maintained for such a protracted battle. For the United States in Iraq, this seems unlikely.155 The advent of real-time media makes any operation open to immediate international scrutiny, which also limits the tactics available and further reduces the chance of success. In Malaya, images of entire squatter villages being depopulated and razed may have sparked a minor outcry at the time; such tactics today would be unthinkable (regardless of their ultimate effectiveness). The Emergency also stands as an example of a conflict in which international involvement, negotiations, or externally brokered cease-fires would have actually precipitated many more years of instability. The British and Malay forces realized that the Communists could not integrate into a stable Malaya—they had to be destroyed or forced to surrender their ideology. For that reason, the British and Malays never saw negotiations as a part of their strategy, and the international community at the time never demanded talks between the belligerents. In retrospect, the noninvolvement of the international community actually fostered a lasting peace system. This situation stands in stark contrast to the myriad current conflicts in which the international community forces the parties to the negotiating table, often at the expense of a lasting peace. Three factors emerge as guideposts to when the international community should refrain from war-stopping efforts and either actively support one side or at least allow the violence to run its course. First, there must be a legitimate government to support. In Malaya, the British and Malay forces were intent on decolonization and an independent, unified, and stable Malayan state, which meshed with 154 Warren Chin, Examining the Application of British Counter Insurgency Doctrine by the American Army in Iraq, 18 Small Wars & Insurgency 1, 9 (2007). 155 In a CBS poll conducted on March 18, 2008, U.S. citizens were asked, “From what you know about the U.S. involvement in Iraq, how much longer would you be willing to have large numbers of U.S. troops remain in Iraq: less than a year, one to two years, two to five years or longer than five years?” Forty-six percent responded with less than a year, and only 6 percent responded with longer than five years. Polling Report.com, Iraq, http://www.pollingreport.com/iraq.htm.

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the goals of the West as well as the United Nations. Second, the “illegitimate” party should not have significant external support. Chin Peng was virtually isolated on the Malayan peninsula, which is a geographic anomaly, but most conflicts involve support from neighboring states and parties. In those cases, negotiations aimed at stopping or slowing external support may be preferable to allowing violence to continue. Third, the violence employed by the “legitimate” force must be constructive. The British forces focused their violence on military defeat of armed insurgents, a constructive use of force. If they had instead engaged in mass reprisal killings of Chinese civilians or other “nonconstructive” violence, long-term grievances might have resulted and hindered an eventual peace system. These three guideposts may not present themselves very often. More often than not, no “legitimate” party will be apparent, especially at the outset of the conflict. Multiple state and nonstate external actors will often support the factions, and the violence employed will often be wanton and random rather than “constructive” military action. If we accept that the default position of the international community is to intervene and to do so as soon as possible to stop any and all hostilities, and that this default position may be counter to a lasting peace system in instances like Malaya when all three guideposts are present, what is the international community to do when only one or two factors are present? Consider the case of Iraq, where the mostly legitimate Iraqi government is fighting a mostly illegitimate group of insurgents using constructive military force. External involvement is limited to U.S. coalition forces and seemingly minor Iranian assistance to some insurgent groups. Based on the Malayan example, the war-stopping efforts of the international community should be tailored not to fostering dialogue and truce but to setting up a more “Malayan” scenario. This could take the form of pressuring the Iraqi regime to maintain its legitimacy (by championing democratic rule and protecting minority rights) and to eschew nonconstructive tactics that would alienate its people (such as attacks on civilians, torture of prisoners, etc.). Although unlikely to succeed, international pressure on Iran to stop any assistance to insurgent groups would also help make Iraq look more like Malaya. Counterinsurgency operations in Iraq and Afghanistan may never fully resemble the Malayan success. Aside from cultural differences between the regions, the fact that the insurgents in Iraq and Afghanistan share the same ethnic and racial background as the rest of the population makes the task of isolation more difficult than in the Emergency. “New Village” type resettlements would never pass international scrutiny today. Although few conflicts will exhibit the exact same characteristics as Malaya, the Emergency provides guideposts the international community may use to determine whether it should allow a conflict to run its course rather than prematurely stop the hostilities in order to facilitate the highest goal of international law: the lasting peace system. The guideposts may also serve as attainable goals in conflicts like Iraq where international intervention to stop hostilities is improbable. Rather than expending blood and treasure in direct war-stopping efforts, perhaps indirect pressure would be more effective. Pressuring Iraq to maintain legitimacy and employ only constructive violence, coupled with pressure on Iran to avoid involvement may shape the conflict—and outcome—to something that resembles Malaya.

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Multiple waves of immigration, colonialism, WWII, and the rise of international communism fomented a powerful insurgency in Malaya in 1945. When the Communist insurgents began armed operations in 1948, however, multiple extra-Malayan events hindered their struggle from the start. First, Chin Peng never adapted Mao’s strategy to Malaya. Second, demand for Malayan products in the lead-up to the Korean War, coupled with the increased economic activity due to the efficiencies of the New Villages, presented the minority Chinese with economic and social improvements that the Communists could not offer. Malayan geography and an effective British coastal fleet precluded resupply via Thailand or from the sea, which made the Communists dependent on locals for support. Chin Peng abandoned the urban areas before the conflict began and retreated farther into the jungle as the MCP weakened, thereby hastening the MCP’s demise. The Communists won few recruits outside the Chinese population and remained a minority within an ethnic minority throughout the struggle. Politically, efforts to enfranchise the Chinese and Indian “immigrant” populations yielded a national unity government with the ethnic Malays, who voluntarily chose to share power. Strategically, the British made few mistakes. They encouraged small unit leaders to improvise and develop new tactics, they set up an effective police force, and they infiltrated the Chinese organizations to gather intelligence. Despite the continued lure of large-unit sweep and clear operations, they were generally quite effective at deploying the combined security forces (numbering upwards of 300,000) against the CTs (who never totaled more than 9,000, only half of which were usually actively engaged in guerrilla operations).156 War-stopping efforts had a singular focus: total defeat of the insurgents. War-stopping efforts in the form of negotiations would have been counterproductive in Malaya. Had an agreement been reached between Chin Peng and Tunku Abdul Rahman, for example, it is highly likely that Malaya would at least have been destabilized and at worst would have been a setting for future battles. Peacemaking efforts that improved the social and economic condition of the insurgents’ support base among the Chinese squatters hastened the end of hostilities and ensured a lasting peace system that endures today. The lessons of the Emergency may guide strategy and tactics against insurgent forces but also serve as a lesson for the international community. There are exceptions to the default rule that all conflicts must be stopped as early as possible. Sometimes allowing constructive violence to proceed to a decisive outcome may prevent an unending cycle of bloodshed and strife.

156 Osbourne, supra note 66, at 9.

Chapter 5 Separatist Insurgency in Southern Thailand: An Approach to Peacemaking Jonathan Ross-Harrington

I. Introduction On January 4, 2004, Malay-Muslim insurgents in southern Thailand raided a military camp, killing four guards and stealing a cache of weapons. Simultaneously, eighteen public schools were set ablaze in coordinated arson attacks. The day’s violence marked a qualitative shift in a decades-old conflict between the Malay-Muslims concentrated in the country’s southernmost provinces and the government of Thailand. Since January 2004, roughly 3,000 deaths have occurred in connection with separatist violence in the region. The latest iteration of the conflict is both the continued manifestation of long-standing grievances between a majority government and a minority population, and, simultaneously, the signaling of new conceptualizations of, and justifications for, violence. Historically, the minority Malay-Muslim population has viewed the Buddhist government of Thailand with suspicion, fear, and contempt. Since the region’s annexation, portions of the population have conceived of the government as an internal colonial power. Organized insurgency has existed since the late-1940s, and though violence has waned during certain periods, Thailand has yet to achieve a lasting peace. As Reisman notes, stopping kinetic violence (war) and making peace are distinct: “Stopping war is a short-term and provisional action [. . .] unless stopping is followed by a qualitative change in the objectives and expectations of the belligerents [. . .] the war will resume whenever one of the parties wishes.” Despite periods   

 

Rohan Gunaratna et al., Conflict and Terrorism in Southern Thailand 22 (2005). Id. See The Thai Police: A Law unto Themselves, The Economist, Apr. 17, 2008, available at http://www.economist.com/displaystory.cfm?story_id=11058580; Zachary Abuza, Car Bomb Rocks Southern Thai Hotel, The Counterterrorism Blog, Mar. 16, 2008, http://counterterrorismblog.org/2008/03/car_bomb_rocks_southern_thai_h.php. See Aurel Croissant, Unrest in Southern Thailand: Contours, Causes, and Consequences Since 2001, Strategic Insights, Feb. 2005. W. Michael Reisman, Stopping Wars and Making Peace: Reflections on the Ideology and Practice of Conflict in Contemporary World Politics, 6 Tul. J. Int’l & Comp. L. 5, 21 (1998).

K. Eichensehr and W.M. Reisman (eds.) Stopping Wars and Making Peace: Studies in International Intervention ©  2009 Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17855 7. pp. 147–183.

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of limited war-stopping, it is peacemaking that has eluded decades of military and civilian administrations in Thailand. Determining viable options for the endeavor of peacemaking in southern Thailand, if not the beginnings of a strategy, is the focus of this chapter. The southernmost provinces of Thailand are not in a state of open, conventional war, but rather a constant, low-level separatist insurgency fueled by a variety of groups engaging in intercommunal and terrorist violence coupled with more traditional insurgent attacks. Thailand’s southern provinces are a demographic anomaly compared to the rest of the country. Muslims represent Thailand’s largest religious minority at roughly 5 percent of the total population. However, Muslims in Thailand are highly concentrated with over 80 percent residing in the three southernmost provinces of Yala, Pattani, and Narathiwat, creating a nearly homogeneous Muslim region. This conflict is exceptionally complex, rooted in a deep and troubled history, framed by concepts of ethnic and religious identity, and fueled by cyclical patterns of separatist violence and government reaction that has led the local population to doubt the legitimacy and viability of government control over the region. In order to develop a set of policies and principles to help guide the transformation of the Pattani region into a peace system, this chapter will evaluate conflict in the region to develop an adequate lens through which to understand the forces driving tension and violence. In Section II, this chapter will begin by cataloging the history of conflict between the Malay-Muslims and the Thai government. Section III will then explain the current phase of the conflict, which for the purposes of this chapter is defined as January 2004 to the present day. Section IV will establish a framework through which one can better understand the underlying drivers of the conflict with an eye toward relying on that framework to identify peacemaking initiatives. Section V will examine three different (past) approaches to war-stopping and peacemaking on the part of the Thai government. Finally, Section VI will consider what can be done to transform the latest iteration of the conflict from a system characterized by daily violence to one of sustainable peace. II. Conflict History The current phase of the Malay-Muslim insurgency is the latest in a century of tension between the minority population and the Thai-Buddhist authority. This sec

 

The conflict zone is limited primarily to Thailand’s three southernmost provinces of Yala, Narathiwat, and Pattani. Together these provinces are referred to as the “Deep South.” Insurgent activity has also occurred in the provinces of Satun and Songkhla, which are located directly north of the three southernmost provinces, and are often considered part of the historical zone of separatist conflict. The provinces of Yala, Narathiwat, and Pattani are often referred to collectively as the “Pattani region” denoting their historical location within the Malay-Muslim Kingdom of Pattani. Zachary Abuza, Militant Islam in Southeast Asia: Crucible of Terror 76 (2003).

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tion provides a brief history of politically and religiously motivated violence in the Pattani region and is designed to provide sufficient context in order to evaluate the forces driving conflict and discuss avenues for peacemaking. Admittedly, much of the conflict’s rich history has been omitted. The subsections represent significant phases of the conflict, which, in reality, cannot be delineated as cleanly as they have been below. A. From Annexation to Organized Insurgency (1906-1959) In 1906, sovereign control over the northernmost states in the Malay-Muslim world was divided in a deal between the Kingdom of Siam and the British colonial authority in modern-day Malaysia. The treaty solidified the annexation of the semiautonomous Kingdom of Pattani10 by Siam and brought the Pattani Kingdom’s nearly homogeneous Malay-Muslim population under direct Siamese-Buddhist rule. Resentment immediately existed among the Pattani elites who felt that their subjugation to the Buddhist authority was “tantamount to flying in the face of religious commandments.”11 Initial resistance was led by the former religious elites of the Sultan of Pattani’s court. Although organized by individuals with political and economic interests in the restored status of the Pattani Kingdom, cultural, religious, and linguistic factors played a significant role in mobilizing initial support. In 1923, Malay-Muslims began protesting the Buddhist administration by withholding tax revenues and demanding a return to independence.12 This small yet vocal movement was quickly suppressed— its leaders were arrested and charged with treason following violent clashes with Siamese authorities. In 1932, the Kingdom of Siam adopted its first constitution as the result of a revolt led by both military officers and civilians in an effort to place the kingdom on the path toward democracy. The resulting administrative changes had little immediate effect upon the day-to-day lives of Malay-Muslims in the south. Nevertheless, economic underdevelopment, poor infrastructure and educational opportunities, and the lack of any cultural and religious affinity with the ruling authority kept the people of the south feeling neglected, restless, and dissatisfied.13 Critically, Siam’s transition toward democracy gave rise to fervent Thai ethno-nationalism that would exacerbate the tension in the southern provinces by grafting the goal of national 

Imtiyaz Yusuf, The Ethno-Religious Dimension of the Conflict in Southern Thailand, in Understanding Conflict and Approaching Peace in Southern Thailand 170 (Imtiyaz Yusuf & Lars Peter Schmidt eds., 2006). 10 The Kingdom of Pattani was primarily comprised of the current Thai states of Yala, Narathiwat, Pattani, Satun, and Songkhla. 11 Moshe Yegar, Between Integration and Secession: The Muslim Communities of the Southern Philippines, Southern Thailand, and Western Burma/ Myanmar 87 (2002). 12 Ibrahim Syukri, The Malay Kingdom of Patani 84 (Connor Bailey & John N. Miksic trans., 2002). 13 Id. at 86.

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unity onto Thai-Buddhist culture and history with which the southern population had no connection. In 1939, Thailand (renamed from Siam in 1938) witnessed the beginning of “Thaization”—a policy designed to homogenize the newly democratic country in an effort to ensure its continued territorial integrity.14 In that year, “General Phibun’s government introduced the Thai Ratthaniyom (Thai Customs Decree), which forced all Thai citizens including the minority groups to conform to a set of common cultural norms.”15 The government issued a series of directives that were aimed at creating a sense of “Thainess” throughout the country. Thailand’s Malays “felt this directive was aimed directly at them because they were forbidden to wear Malay clothing, use Malay names, speak the Malay language, and embrace the Islamic religion.”16 In fact, there were reported instances in which Malay-Muslims were forced to pray to an idol of the Buddha.17 During this period (as in subsequent decades) the Thai authority linked cultural homogeneity directly to concepts of national sovereignty and security. Thailand, as the only regional nation never to be colonized, placed primacy on sovereignty and territorial integrity. As Wattanayagorn observes, the promotion of Thai culture, language, and religion (Buddhism) has been a central strategy in achieving those objectives—“the introduction of the concept of “Thainess” under the institution of the monarchy was a rational strategy for organizing the people.”18 World War II catalyzed the expansion of conflict over the future of the Pattani region. Malay-Muslims in southern Thailand fought alongside the British Army against the Thai government, which was allied with Japan. Malay leaders believed that following a victory over the Japanese, the British would aid in the establishment of Pattani’s independence.19 As Gunaratna observes, “Pattani Malays demanded integration with the Malay-dominated Malaysia, which was however not accepted by Britain and the United States, due to their concerns about the territorial integrity of Thailand.”20 In 1948, Malay nationalism surged with the establishment of the Federation of Malaya, the precursor of modern-day Malaysia. Resentment over continued cultural assimilation and perceived repression in the wake of Malay independence led to the first truly organized instances of separatist violence. Coalescing around a Malay-Muslim leader named Haji Sulong Abdulkader, Malay-Muslims presented both grievances and aspirations in the form of a sevenpoint plan to the Thai government21—Sulong was promptly arrested. Tensions reached their peak when Sulong’s followers clashed with Thai police in April 1948, 14 See generally Panitan Wattanayagorn, Thailand: The Elite’s Shifting Conceptions of Security, in Asian Security Practice (Muthiah Alagappa ed., 1998). 15 Gunaratna, supra note 1, at 4. 16 Syukri, supra note 12, at 87. 17 Id. 18 Wattanayagorn, supra note 14, at 418. 19 Gunaratna, supra note 1, at 5. 20 Id. 21 Gothom Arya, Local Patriotism and the Need for Sound Language and Education Policies in the Southern Border Provinces, in Understanding Conflict and Approaching

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resulting in an estimated 1,100 Muslim and thirty police fatalities.22 The “Dusun Nyiur incident,” as the clashes came to be known, were a harbinger of greater levels of organized resistance to follow and the first indication to the Thai government that the “southern problem” was a serious one.23 B. The Height of Organized Resistance (1959-1981) Until 2004, the 1960s and 1970s were the high water mark of the region’s separatist activity. During that period, upwards of sixty armed organizations existed, including Malay-Muslim separatists, Communists, and those whose motives were primarily criminal.24 Despite the numerosity of similarly situated Malay-Muslim separatists, there is little evidence of systemic cooperation as no single leader with the relative appeal of Haji Sulong emerged.25 The dramatic rise in insurgent mobilization during this period can be viewed, in part, as a response to a new wave of Thaization policies. Notably, between 1961 and 1969, 100,000 Thai-Buddhists migrated to Pattani as a result of financial incentives provided by the government.26 Though the policy was retracted, it is estimated that the goal was to relocate at least 650,000 Thai-Buddhists into the Muslim area. Yegar notes that, “[t]he Malay-Muslim population objected to the encroachment of Thai-Buddhists into its areas, regarding it as a territorial invasion aimed at changing the ethnic balance in the region.”27 The establishment of the National Patani Liberation Front (BNPP) marked a new phase in the conflict. It was the first of three organizations to advocate the full independence of Pattani. 28 Rooted in a sense of Malay-Muslim identity, the BNPP was the first to structure itself as a coherent and disciplined insurgent organization. Though it only reached two hundred to three hundred armed members at its height,29 the BNPP was effective at establishing international contacts both in Malaysia and throughout the wider Middle East for the purposes of fundraising and training.30 It recruited through religious schools and pursued a classic insurgent strategy aimed at destabilizing order in the region in the hopes of widening local support and membership.

22 23 24 25 26

Peace in Southern Thailand 25-26 (Imtiyaz Yusuf & Lars Peter Schmidt eds., 2006). Gunaratna, supra note 1, at 5. Chaiwat Satha-Anand, The Silence of the Bullet Monument, in Rethinking Thailand’s Southern Violence 17 (Duncan McCargo ed., 2007). International Crisis Group, Asia Report No. 98, Southern Thailand: Insurgency not Jihad 6 (2005) [hereinafter Asia Report No. 98]. Id. W.K. Che Man, Muslim Separatism: The Moros of Southern Philippines and the Malays of Southern Thailand 38 (1990). Yegar, supra note 11, at 125.

27 28 Asia Report No. 98, supra note 24, at 6. 29 Id. at 7. 30 Id.

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The Barisan Revolusi Nasional (BRN, National Revolutionary Front) emerged shortly thereafter, largely in response to the government’s plans to force religious schools to adopt secular curricula. Initially, the BRN focused relatively greater attention on social and political organization than armed insurgency, developing a concept of “Islamic socialism.”31 Its armed wing contained roughly 150 to 300 men, and its attempt to combine nationalism, socialism, and Islamism “made it particularly vulnerable to factional splits.”32 A break-away faction of the BRN, BRN-Coordinate, is thought to be responsible for a large percentage of current insurgent activity.33 The third insurgent organization to emerge in this period was the Pattani United Liberation Organization (PULO), which was formed in 1968. During this period, the PULO was the most effective Malay-Muslim separatist group. The PULO sought the establishment of an independent state or sultanate comprised of the five southernmost provinces. It was founded on the “principles of ‘UBANGTAPEKEMA,’ an acronym for religion, race, national identity, homeland, and humanitarianism.”34 The organization argued that Thailand had unlawfully incorporated the region in the early twentieth century and has now established colonial rule while “committing crimes against humanity in the area.”35 Over time the PULO began to emphasize Islam as a fundamental conception of Malay identity, leading some analysts to conclude that this period saw the emergence of a religious motivation for conflict, Islam versus Buddhism, alongside the preexisting ethno-nationalist motivation, Malay versus Thai.36 Unsurprisingly, the proliferation of armed groups in the late 1960s and 1970s accompanied a dramatic surge in violence. Among the primary targets were police posts and government buildings. Military and police activity intensified against the insurgent organizations throughout the 1970s; however, the effects were minimal and often led to increased resentment of Thai authorities among the local population.37 Some of the most intense fighting occurred in the mid-1970s following the alleged murder of five Muslim youths by Thai military forces. In response, the PULO organized protests that drew an estimated crowd of 70,000.38 Throughout the early 1980s, attacks increased in both number and audacity. It is suspected that the PULO, working in conjunction with a smaller organization, was responsible for four separate bombings in Bangkok in a single day in July 1980. The

31 Id. at 8. 32 Id. 33 See National Reconciliation Commission (Thailand), Report: Overcoming Violence Through the Power of Reconciliation 14 (2006) [hereinafter NRC Report]; Zachary Abuza, A Break-down of Southern Thailand’s Insurgent Groups, Jamestown Terrorism Monitor, Sept. 8, 2006, at 3, 4. 34 Gunaratna, supra note 1, at 37. 35 Id. 36 See generally S.P. Harish, Ethnic or Religious Cleavage?: Investigating the Nature of the Conflict in Southern Thailand, 28 Contemp. Southeast Asia 56 (2006). 37 See Asia Report No. 98, supra note 24, at 9. 38 Harish, supra note 36, at 57.

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July bombings are one of the only attacks to ever occur outside the Pattani region.39 The number of “rank-and-file” armed members of the primary separatist groups likely never surpassed 2,000, and estimates place the total number of armed insurgents at slightly under 1,000 in 1980.40 However, by 1980, Pattani had experienced over three decades of steadily increasing violence, as insurgents routinely destabilized peace and security in the region. Up to this point, the strategy of combining intense, and often brutal, counterinsurgency techniques with policies aimed at diluting Malay-Muslim cultural and religious identity had proven ineffective. A Pattani police captain offered a telling admission in 1977: If we look at the statistics, we like to believe that our operations were successful and that the terrorists should have been entirely wiped out. On the contrary, several terrorists remain active; new leaders who are unfamiliar to us have appeared. In fact, we have conducted campaigns against them since 1905. Yet still they exist.41

C. A New Approach: Government Intervention, Simmering Tensions, and Insurgent Fragmentation (1981-2001) The conflict in southern Thailand took a dramatic turn in 1980 following the election of General Prem Tinasulanond as prime minister. General Prem was himself a southerner and had served as an officer in the southern Thai command. As such, he was acutely aware of the complexity of Malay-Muslim grievances and the role of identity and culture in the conflict.42 General Prem, seeking to rein in both Communist and Malay-Muslim separatist activity, advocated a new strategy that sought to alleviate underlying grievances of the local population in an effort to depress support for insurgent groups.43 General Prem created bureaucratic and administrative structures designed to increase accountability and provide Malay-Muslims with institutions through which they could raise grievances. Furthermore, he rigorously reformed the activities and operating culture of the security forces in an attempt to counter corruption and human rights abuses (both perceived and real) among Thai-Buddhist members of the police and military. General Prem’s “new approach seemed to work. Over the 1980s and early 1990s, violence dropped off significantly, and membership in armed organizations shrunk as fighters took up amnesty offers, abandoning their fight to participate in development programs or join the army.”44 A shift in approach did not transform the Pattani region into a peace system, nor did it completely eliminate the presence of separatist organizations. Many active insurgents accepted the amnesty offered under General Prem’s tenure; however, the 1980s and 1990s witnessed the fracturing of groups and the emergence of ultimately 39 40 41 42 43 44

Asia Report No. 98, supra note 24, at 10. Id. at 11. Id. at 9. See generally infra Section IV. See infra Section V.B. Asia Report No. 98, supra note 24, at 11.

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more violent strands. The BRN began to split in the early 1980s. By 1984, there were three discernible BRN factions, including the BRN-Coordinate, which is thought to be a leading organization in the current phase of the conflict.45 In 1995, Gerakan Mujahideen Islam Pattani (GMIP) emerged, representing a growing trend toward the inclusion of radical Islamist ideologies. The GMIP is committed to the establishment of an independent Islamic state; however, it adheres to a more conservative brand of Wahhabist Islam.46 A faction of the PULO split away in 1995 forming the New-PULO. The NewPULO engaged in a strategy of constant, low-level violence in an effort to destabilize the area while building capacity. Like the GMIP, the New-PULO engaged in a number of criminal activities, such as extortion and kidnapping, to finance its operations. Finally, in the late 1990s, many of the region’s remaining separatist organizations formed a brief tactical alliance known as Bersatu (Unity). Bersatu successfully carried out a dramatic, coordinated series of thirty-three terrorist attacks known as the “Falling Leaves” campaign, which resulted in the death of nine state officials over a six-month period in late 1997. The Falling Leaves attacks were “arguably the most serious escalation of violence since the 1980s.”47 The two decades following the commencement of General Prem’s strategy were marked by a significant drop in insurgent-related deaths and violence; however, they were also a period of dynamism as the ideologies supporting the organizations, and the organizations themselves, began to diversify. Factionalism, fewer attacks, the removal of notable insurgent leaders, and the use of criminal activity to finance remaining separatist activity led many to believe, incorrectly, that the campaign for Malay-Muslim independence had largely subsided and was replaced by criminality masquerading as political and religious grievance.48 It was against this backdrop that Thaksin Shinawatra would rise to power and preside over a period of dramatic reescalation of separatist activity in Pattani, Yala, and Narathiwat. D. Enter Thaksin: A Breakdown of Relative Stability (2001-2004) Since the late 1950s, separatist violence in southern Thailand has never completely subsided. However, the election of former Prime Minister Thaksin Shinawatra represented the beginning of the latest phase of the conflict, a phase that was, at the very least, catalyzed by Thaksin’s approach to the southern provinces.49 Initially, the neophyte prime minister viewed the southern provinces as a political problem, as opposed to a security issue. The region’s powerful institutions were dominated by his political opponents, administered by military and palace network structures that had been instituted during the reforms of General Prem, and were 45 46 47 48 49

Supra note 33. See generally Gunaratna, supra note 1, at 40-41. Asia Report No. 98, supra note 24, at 14. Id. at 15. See generally Ukrist Pathmanand, Thaksin’s Achilles’ Heel: The Failure of Hawkish Approaches in the Thai South, in Rethinking Thailand’s Southern Violence (Duncan McCargo ed., 2007).

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largely outside of Thaksin’s control. After taking office, Thaksin began to dismantle the administrative and security architectures that had proven effective since the early 1980s and replaced them with political loyalists, principally from the Thai police service. The relative historic decline in separatist violence convinced Thaksin that these structures were no longer relevant and thus could be disbanded in furtherance of his own political ends. Simultaneously, Thaksin announced that his first, nationwide security priority would be to crack down on the rampant proliferation of drug trafficking and addiction in Thailand. In February 2003, the administration initiated a “War on Drugs” marked by numerous human rights abuses, extrajudicial killings, and a strict limitation of due process rights.50 The police force, which was already a largely discredited institution in southern Thailand, was given extraordinary powers and was quickly accused of widespread abuses across the country. The Thaksin government instructed police and local officials that persons charged with drug offenses should be considered “security threats” and dealt with in a “ruthless” and “severe” manner. The result [. . .] was some 2,275 extrajudicial killings, which the government blamed largely on gangs involved in the drug trade [. . .] intimidation of human rights defenders; violence, arbitrary arrest, and other breaches of due process by Thai police.51 Thaksin’s War on Drugs was not directed at the southern provinces per se; however, to the Malay-Muslim population, it was a clear indication of the new administration’s approach to security and a stark reminder of past corruption and abuse. The government crackdown on drug-related crime provided the police cover to target those suspected of separatist ties or sympathies. Reports of extrajudicial killings and disappearances of Malay-Muslims occurred during the War on Drugs, and even those who were known to have accepted the amnesty offers of past administrations were targeted.52 Coupled with heavy-handed tactics in the War on Drugs and the dismantling of preexisting political and security institutions, the first three years of Thaksin’s administration coincided with the initiation of the U.S.-led War on Terrorism. Thaksin was a public supporter of President Bush and provided a small, but highly publicized contingent of Thai troops to the multinational force in Iraq.53 Set against the backdrop of a rising Islamic consciousness in Southeast Asia and an influx of more conservative strands of Islam,54 Thaksin’s public support of the Bush administration was perceived negatively within the Malay-Muslim community, which interpreted American policies as anti-Muslim.

50 See generally Human Rights Watch, Report: Not Enough Graves: The War on Drugs, HIV/AIDS, and Violations of Human Rights (2004). 51 Id. at 1. 52 Asia Report No. 98, supra note 24, at 35. 53 No Thai Troop Pullout from Iraq, CNN, Dec. 28, 2003, http://edition.cnn.com/2003/ WORLD/meast/12/28/sprj.irq.thailand.ap/index.html. 54 See infra Section IV.B.

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Since January 2004, southern Thailand has witnessed a dramatic intensification of violence in terms of frequency, coordination, and lethality. Attacks are a daily occurrence in the provinces of Pattani, Yala, and Narathiwat, and although not all incidents result in fatalities, the region has grown more and more destabilized as a cycle of violence has emerged between insurgent attacks and counterinsurgency operations. Attacks have yet to spread outside of the region; however, with the growing levels of radical Islamist and jihadist activity in Southeast Asia, the intensification of violence has drawn the attention of scholars and policy makers who are concerned about the evolution of the Pattani separatist insurgency from one of historically localized goals into a new front in the battle against globalized Islamist extremism. The violence over the past three and a half years should be seen as the latest iteration of a long-standing separatist insurgency, as opposed to a new and distinct conflict. Nevertheless, despite aspects of continuity, new trends do exist. This section will first present the critical events of this latest period of the conflict. It will continue by outlining key trends since January 2004, followed by a brief examination of the separatist groups involved and an analysis of their goals, ideology, and strategy. A. Critical Events On January 4, 2004, in coordinated attacks against targets across nine districts in Yala and Narathiwat, thirty insurgents raided a military camp and armory, killing four soldiers and stealing over three hundred M-16 assault rifles, two grenade launchers, and seven rocket-propelled grenades.55 Simultaneously, eighteen public schools were set ablaze and spikes were laid in the road to prevent fire trucks from rendering aid.56 The next day Thaksin declared martial law in the provinces and dispatched over 3,000 soldiers to the region.57 Thaksin’s public position, that any violence in the region was attributable purely to criminality, was dispelled with the coordination and audacity of the attacks. While the administration continued to downplay the possibility of a resurgent separatist campaign, it issued thirty-three arrest warrants ten days after the attack, including five for known separatist leaders. Three days later, the stolen weapons were suspected of being used against a police station near the Malaysian border.58 Later in January, in separate attacks, Buddhist monks were hacked to death while seeking alms. Though comparably less sophisticated, the attacks marked a targeting innovation and may have been an attempt to stir intercommunal violence between Buddhists and Muslims. Coordinated arsons against public schools and other symbols of Thai cultural assimilation continued, and bombings against security and symbolic targets increased in size. 55 56 57 58

Gunaratna, supra note 1, at 22. Id. at 23. Asia Report No. 98, supra note 24, at 17. Gunaratna, supra note 1, at 23.

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A significant event occurred on April 28, 2004. In a series of coordinated predawn raids, poorly armed and poorly trained youth assailants attacked police stations, army outposts, and checkpoints.59 Though 105 insurgents were killed by security personnel across the region,60 the most important battle took place when thirty assailants retreated inside the Krue Se mosque and were surrounded by Thai security personnel. The perpetrators of the April 28 attacks were unique. They were relatively young and had been recruited and indoctrinated by a network of local religious teachers at mosques across the South. They espoused a religious virulence unfamiliar to the history of the separatist campaign. The insurgents appeared willing, if not eager, to die as martyrs, which would account for their tactic of head-on raids against security forces using little more than machetes. Reports indicate that the assailants had been “brainwashed,”61 but it is thought that these insurgents justified their actions squarely in religious terms. According to a local Islamic scholar “the attack bore the trademark of jihad.”62 The significance of the Krue Se mosque incident is not only the stark appearance of religious overtones and the discovery that one of the assailants carried the Berjihad di Pattani,63 a document outlining the insurgency in the rhetoric of Islamist militancy. The public standoff between Thai security forces and the insurgents inside the ancient and historically significant mosque became a key symbol of government heavy handedness in the Thaksin era. Without attempting to negotiate with the insurgents, the military raided the mosque with shoot-to-kill orders, leading with hand grenades and tear gas.64 Regardless of whether or not the government was justified in its tactics, the public nature of the occurrence provoked a strong backlash in the region. Community leaders and international human rights groups, including the UN High Commissioner for Human Rights, called for an inquiry.65 Thaksin initially, and farcically, dispelled the attacks as the work of drug addicts and claimed a swift victory; however, weeks later, he appointed an independent commission to investigate the incident.66 The report concluded that the force used by security personnel was disproportionate and that the military officers should be held accountable.67 Attacks increased in lethality and frequency following the Krue Se mosque incident. Insurgents increasingly sought out “soft targets” including numerous bombing attacks against Buddhist temples and the occasional decapitation of Buddhist civilians. The second significant event of this period occurred on October 25, 2004, when a group of roughly 2,000 protestors rallied outside a police station in Tak Bai 59 60 61 62 63 64 65 66 67

Asia Report No. 98, supra note 24, at 24. Id. Gunaratna, supra note 1, at 26. Id. at 25. See infra Section IV.B. Asia Report No. 98, supra note 24, at 23. Id. at 27. Id. at 26-27. Id. at 27.

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demanding the release of six Malay-Muslim defense volunteers taken into custody. Reports indicate that some of the protestors were in fact armed; however, as the protest grew in strength, the police fired warning shots into the air and subsequently arrested over 1,300 people. Those arrested were placed into trucks for transport to a variety of military bases for questioning. Unfortunately, seventy-eight of the protestors died en route from suffocation, having been crammed into the vehicles for over five hours in exceptionally hot weather.68 The incident, which occurred during the month of Ramadan, sparked a violent reaction, including public commitments for retaliatory suicide attacks.69 Separatist activity continued to grow following the Tak Bai protests. The government increased its security presence and allegations of extrajudicial killings, illegitimate arrests, and suspicious disappearances of local Malay-Muslim leaders continued. Following Thaksin’s reelection in February 2005, his government began to change its tack.70 An “Emergency Decree” replaced martial law for certain insurgent strongholds, which “was an attempt to strike a balance between tough security measures and enhanced legal protections.”71 Despite Thaksin’s emphasis on a more humanitarian approach to security operations, and his conciliatory overture in establishing the National Reconciliation Commission (NRC),72 progress was not forthcoming. Attacks continued against security forces, teachers, monks, civilians, and, increasingly, Muslims suspected of supporting or assisting Thai authorities. As intercommunal violence increased, Thaksin’s inability to control the situation became a political liability. The general population feared security force discretion. One incident that had a particularly troubling effect upon the Muslim civilian population was the brutal killing of Imam Satopa, a local religious figure who was gunned down in front of his home in August 2005. Official government explanations state that Satopa’s death occurred at the hands of separatists; however, locals believed the attack was an extrajudicial killing by security forces.73 What was significant about Satopa’s murder was the community reaction that reflected high levels of distrust between locals and the Thai authorities. Local authorities were unable to investigate the killing, as “villagers would not cooperate. Refusing to allow police access to a crime scene is a brazen challenge to state authority.”74 During this period, long-standing tensions between Thaksin and the military leadership became evident. On September 19, 2006, the military deposed Thaksin 68 See Farish A. Noor, Thailand’s Smile Fades, BBC News, Nov. 18, 2004, available at http://news.bbc.co.uk/2/hi/asia-pacific/4017551.stm. 69 Id. 70 Thaksin’s inability to stem the rapid rise in violence in the Pattani region was a politically sensitive issue during Thaksin’s reelection campaign. The king placed public pressure on his government by making public statements calling for more reconciliatory approaches to the violence. 71 International Crisis Group, Asia Report No. 105, Thailand’s Emergency Decree: No Solution 3 (2005) [hereinafter Asia Report No. 105]. 72 See infra Section V. 73 Asia Report No. 105, supra note 71, at 9. 74 Id. at 10.

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in a peaceful coup. The coup was not the direct result of Thaksin’s inability to rein in the violence in the south, although tensions between Thaksin, a former police officer, and the military were a key impediment to progress in the region. General Sonthi Boonyaratglin, the leader of the armed forces at the time of the coup, had become increasingly outspoken against Thaksin’s approach to the conflict, particularly his harsh tactics and the way he largely ignored the recommendations of the NRC.75 Analysts considered the coup an opportunity for progress in the southern provinces.76 General Sonthi advocated negotiations with insurgents, and analysts thought that a return to military control would signal a return to General Prem’s strategy of the 1980s. Prior to the coup, Sonthi commented that “the improvement of local security hinge[s] on the ability of the authorities to forge community relations and win over the hearts and minds of residents.”77 Interim Prime Minister Surayud, appointed by the military leadership, reestablished some of the bureaucratic and security architectures instituted by General Prem and began to bring control of civilian and security affairs back under the purview of the military, headed by General Sonthi. However, initial optimism began to wane as the interim military government extended its control for longer than expected and was unable to control insurgent activities or protect civilians. Surayad’s issuance of an official apology for the security actions during the Tak Bai protests resulted in the most violent reaction since the protests in October 2004. The day following his November 2, 2006, apology witnessed forty-six separate attacks, compared with a daily average of nine the previous month.78 The postcoup interim government reengaged the conflict with the correct mindset but found it difficult to sustain reform momentum in the face of political and security challenges inherited from the previous five years of the Thaksin administration. Recently, postinterim government elections have brought a pro-Thaksin administration back into power; however, no dramatic shift in strategy has occurred and violence continues unabated. B. Key Trends The current phase of the insurgency has a number of characteristics that distinguish it from the separatist campaign in the 1960s, 1970s, and early 1980s. First, the frequency and sophistication of attacks have increased steadily since January 2004. Violence in Pattani is a daily occurrence with the Interior Ministry reporting over 1,000 incidents of insurgent-related violence in 2004 alone (up from 119 in 2003).79 The 3,000 insurgency-related fatalities since 2004 constitute a dramatic increase from the previous two decades. For instance, in the years 1993 to 2004, there 75 International Crisis Group, Asia Report No. 129, Southern Thailand: The Impact of the Coup 2 (2007) [hereinafter Asia Report No. 129]. 76 See id. at 29. 77 Id. at 2. 78 Id. at 8. 79 Thailand Violence, Reuters AlertNet, July 1, 2008, http://www.alertnet.org/db/ crisisprofiles/TH_INS.htm?v=in_detail.

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were 2,593 incidents of political violence, of which “only 750, or 29 percent, occurred between 1993 and 2003, while a remarkable 71 percent or 1,843, took place in 2004 (including January 2005).” 80 Trends in the sophistication of insurgent and terrorist attacks are more difficult to assess. Improvised explosive devices (IEDs) have come to play a larger role in insurgent tactics. The size of explosives as a function of kilograms has grown steadily since 200481 but has yet to approach the level of bomb-making sophistication of some of the regional jihadist and radical Islamist groups, such as Jemaah Islamiyah. Some look to the lack of large-scale bombings as evidence that the separatist groups may not be as much of a threat as assumed; however, tactical “simplicity could well belie the insurgents’ capabilities, as they appear to have learnt to plan attacks simultaneously across a large area—a feat which takes substantial organization.”82 The increased levels of coordination indicate an expanded tactical capability as compared to previous decades. Though not always extremely lethal, an unclaimed, yet well-coordinated, bombing attack resulted in forty detonations across the region in a single day in June 2006.83 Second, the target spectrum has expanded, which may indicate a shifting strategy on the part of the insurgent groups. For instance, “in the 1970s and 1980s, most separatist violence took the form of orthodox guerrilla warfare, typified by hitand-run attacks directed against members of the military.”84 Since 2004, the south has witnessed a dramatic rise in the targeting of civilians, with both Muslims and Buddhists suffering casualties.85 An August 2007 report noted that of the roughly 2,400 insurgency-related deaths since January 2004, 89 percent have been civilians.86 Indiscriminate bombings, in places such as outdoor markets87 and cafes, were effectively nonexistent during the earlier iterations of the insurgency. Many of the targets remain historic symbols of government authority and the institutions through which the policies of “Thaization” were implemented. For 80 Srisompob Jitpiromsri, Unpacking Thailand’s Southern Conflict: The Poverty of Structural Explanations, in Rethinking Thailand’s Southern Violence 90 (Duncan McCargo ed., 2007). 81 The size of bombs used by separatists has grown steadily since 2004. In the month of January 2007, eight separate IEDs in the 15-kilogram range were detonated along roadsides targeting security vehicles. This was in stark contrast to bombs in the 2-5 kilogram range that were primarily employed in 2004 and the 3-10 kilogram range in 2006. Asia Report No. 129, supra note 75, at 7. 82 Kate McGeowan, Lifting the Lid on Insurgents, BBC News, Aug. 7, 2008, available at http://news.bbc.co.uk/2/hi/asia-pacific/5252528.stm. 83 Id. 84 Wattana Sugunnasil, Islam, Radicalism, and Violence in Southern Thailand: Berjihad di Patani and the 28 April 2004 Attacks, in Rethinking Thailand’s Southern Violence 113 (Duncan McCargo ed., 2007). 85 See Human Rights Watch, Report: No One Is Safe: Insurgent Attacks on Civilians in Thailand’s Southern Border Provinces (2007) [hereinafter No One Is Safe]. 86 Id. at 5. 87 See, e.g., Blast in Thai South Hurts Dozens, BBC News, Jan. 15, 2008, available at http:// news.bbc.co.uk/2/hi/asia-pacific/7188654.stm.

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instance, state schools with Thai-Buddhist teachers have been targeted at an alarming rate. Reports from 2007 indicate that of the civilian fatalities since the surge in violence, seventy-one have been teachers from public schools.88 The violence against teachers grew so acute that for a time the government provided teachers with handguns and bullet-proof vests upon request.89 Furthermore, Pattani witnessed a dramatic increase in the targeting of Buddhist monks,90 perhaps the most visible civilian symbol of Thai rule in the region. Perhaps most notable in the context of targeting shifts is the increase in attacks against Malay-Muslims, both directly and as collateral damage in the use of less discriminate tactics, such as bombings. Reports indicate that separatists are attacking Malay-Muslims that are suspected of assisting Thai security forces (i.e., informants), which is a relatively common insurgent strategy. However, intracommunal attacks might be a worrying signal that insurgents are not simply trying to control the local Malay-Muslim population, but rather that they are invoking the Islamic concept of takfir 91 as a justification for violent action against fellow Muslims they consider to be apostates. Third, the role of Islam as a catalyzing and organizing force in the insurgency has grown. Much debate centers on the degree to which this conflict has become a localized jihad, whereby insurgents frame the conflict in religious terms, or a continuation of the insurgency with merely a more prominent emphasis on Islam as a unifying force for Malay-Muslim identity. In either case, evidence suggests that religion has become more relevant since 2004.92 Fourth, intercommunal violence has escalated, with militia organizations and paramilitary armies taking a more active role. The Thai government has relied on paramilitaries and local militias to assist with security functions in the past, particularly against Communist forces.93 With the end of the Communist insurgency and the decrease in Malay-Muslim separatist activities, the paramilitary units established by the Thai security forces became inactive; however, since around 2000, Thai forces have begun to reconstitute these forces to fill gaps in the regional security architecture. Unfortunately, paramilitaries and militias “tend to have worse records than professional troops on human rights abuses and extrajudicial killings, and they often stoke communal tensions at the village level.”94 Fifth, and perhaps most puzzling, attacks, while increasing in frequency and sophistication, have largely gone unclaimed by insurgent organizations.95 This may be indicative of a more decentralized and fractured separatist enemy as compared 88 No One Is Safe, supra note 85, at 72. 89 Simon Montlake, Learning to Live with Violence, BBC News, July 12, 2005, available at http://news.bbc.co.uk/2/hi/asia-pacific/4675415.stm. 90 See No One Is Safe, supra note 85, at 65-69. 91 See infra Section IV.B. 92 Id. 93 International Crisis Group, Asia Report No. 140, Southern Thailand: The Problem with Paramilitaries 2-3 (2007) [hereinafter Asia Report No. 140]. 94 Id. at 3. 95 See McGeowan, supra note 82.

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to the 1970s. However, analysts are concerned that the lack of attribution is a calculated strategy that has resulted in the mystification of Thai security forces. Unlike past decades when two or three organizations, with clear organizational charts and leadership hierarchies, were responsible, current violence is orchestrated by shadowy organizations without clearly articulated goals, strategies, or ideologies. C. Insurgent Groups and Violent Actors As noted above, the fact that the majority of attacks have gone largely unclaimed since January 2004 means that security services (and outside analysts) have had a very difficult time understanding who exactly the “enemy” is in the Pattani region. Nevertheless, there are a certain minimum number of organized insurgent groups believed to be operating in southern Thailand. 1. Barisan Revolusi Nasional-Coordinate (BRN-C) The Barisan Revolusi National (BRN) was among the first organized separatist groups in southern Thailand following World War II. The organization fractured in the early 1980s, and the BRN-C faction is now considered one of the organizations largely responsible for violence in the south.96 Historically, the BRN has been less accepting of the nationalist agenda espoused by the PULO in earlier decades of the insurgency. Today, it is thought that BRN-C draws its strength from networks of religious schools (pondoks) and is led, in large part, by religious teachers known as ustadz. “Thai intelligence now speaks of the insurgency as being a ‘pondok-based’ movement.” General Pisarn Wattanawongkeeree, the former commander of Thai armed forces in the south, said, “[t]here is no doubt that the basis for this new insurgency are the ustadz.”97 The BRN-C is committed to becoming a broad-based entity, and it is thought to engage in grassroots recruitment as well as extensive political and ideological discourse.98 However, the BRN-C has released no discernable political platform or statement of goals and objectives in recent years. The organization has a separate military wing known as the Runda Kumpulan Kecil (RKK) comprised of BRN-C members who have received training in Indonesia while pursuing religious studies. However, there are no accurate organizational charts available in open-source materials. Many of the low-level, unsophisticated, and uncoordinated attacks are the work of young militants, many of whom would fall under the broad banner of the BRN-C, but who are not true operatives taking direction from BRN-C leadership.

96 See Ian Storey, Thailand Cracks Down on Southern Militants, Jamestown Terrorism Monitor, Sept. 13, 2007, at 10. 97 Abuza, supra note 33, at 4. 98 Id.

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2. Gerakan Mujahideen Islam Pattani (GMIP) GMIP is another organization thought to be responsible for the surge in violence since 2004. Its origins are more closely tied to the Salafi Jihadi movement because it was founded by former Afghan mujahideen. Since the mid-1990s, the organization has called for the establishment of an independent Muslim sultanate to be governed by sharia law, and it is thought to have had ties with regional Salafi Jihadi groups, such as Jemaah Islamiyah, although the extent and continuity of those ties is questionable. 3. Pattani United Liberation Organization (PULO) and New-PULO The influence of the PULO has diminished relative to the BRN-C; however, it is still thought to be active. The degree to which the PULO has joined forces with the GMIP and BRN-C is difficult to gauge. Unlike the GMIP, the “PULO has always been a very secular organization, emphasizing Pattani secessionism, not religion.”99 It began to splinter in the 1980s and the New-PULO emerged in 1995 under the leadership of foreign-trained PULO commanders. Recent arrests of New-PULO members suggest that the group remains active, and two of its highly competent explosives experts are on Thai most-wanted lists.100 4. Paramilitaries and Militias Not all the violence in southern Thailand is attributable to established separatist organizations or Thai security forces. The Volunteer Defense Corps (Or Sor) was formed in 1954 with the support and financing of the U.S. government in an effort to provide regional security and deter the communist threat.101 Another paramilitary force, the Rangers, was established by the Thai Army in 1978 and quickly took over a large percentage of the counterinsurgency portfolio against the Communists.102 The historic utility of such forces has been questionable. Difficult to control and a source of intravillage tension, paramilitaries were often viewed with suspicion by the general population. Since the surge in violence, security forces have increasingly relied on Or Sor, the Rangers, and other militia organizations in counterinsurgency operations and local intelligence gathering. Paramilitaries are often preferred due to their low-cost operation, knowledge of the terrain, and willingness to operate in exceptionally hostile areas. However, they continue to prove difficult to control. The Rangers were responsible for the transportation of the Tak Bai protestors that resulted in the death of dozens,103 and they have been implicated in numerous extrajudicial killings, rapes, and abuses of authority. Though drawn from the local population, paramilitaries do 99 100 101 102 103

Id. Id. at 6. Asia Report No. 140, supra note 93, at 2. Id. at 4. See supra Section III.A.

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not include many Malay-Muslims. Locals consider them to be part of the problem, not part of the solution. Another category of organization that is responsible for violence in the region is informal militias, particularly Buddhist militias. Representing only 20 percent of the population, but more than half of the fatalities since 2004, Thai-Buddhists have developed a siege mentality. Groups of citizens are banding together, procuring weapons, and operating at the village and subdistrict level. These militias maintain no official ties to the security forces, but little attempt is made to regulate their activities, which they define as wholly defensive. Nevertheless, reports of vigilante-style attacks on Malay-Muslim populations have been reported as the level of intercommunal violence has spiked in the past two years. For instance, “video CDs showing gruesome attacks on Buddhist civilians and monks circulate widely among these groups, often overlaid with fiery rhetoric about the need to protect Buddhist communities.”104 5. Foreign Elements One of the critical questions regarding the Malay-Muslim insurgency is the extent to which its objectives, actors, or ideology have been co-opted by transnational jihadists operating in the region. It has been argued that the spike in tactical sophistication and the increased targeting of soft, civilian targets is an indication that foreign elements are operating in southern Thailand, or, at the very least, are offering material and ideational support. However, evidence of a significant foreign presence is minimal. Certainly, connections between Malay-Muslim separatists in Pattani and their co–ethno-religionists in neighboring Malaysia exist. Separatists have always benefited from ideational and material support of radical organizations and hardline political parties based in northern Malaysia. Jemaah Islamiyah operatives have been present in Thailand. Hambali, Jemaah Islamiyah’s former operations chief was arrested north of Bangkok in 2003.105 Furthermore, it is thought that the GMIP was one of a handful of organizations that Jemaah Islamiyah leaders approached to form a regional coordinating body of jihadists under the banner of the Rabitatul Mujahideen (RM),106 but the evidence of systemic cooperation between Malay-Muslim separatists in Thailand and regional organizations, other than those in northern Malaysia, is speculative. D. Ideology, Objectives, and Strategy of the Insurgents As noted above, the recent wave of violence has been characterized by a lack of attribution. Similarly, the organizations that are suspected of orchestrating the lion’s share of the violence (at least the more coordinated and lethal varieties) provide little public insight regarding their ideology, goals, and strategy. As a result, the specific 104 Asia Report No. 140, supra note 93, at 19. 105 Terror Suspect Hambali Quizzed, BBC News, Aug. 15, 2003, available at http://news. bbc.co.uk/2/hi/asia-pacific/3152755.stm. 106 See Abuza, supra note 33, at 4.

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ideology of insurgent groups is difficult gauge. Organizations in the earlier phases of the conflict were clearly ethno-nationalist separatists. Their ideology was rooted in an understanding of the historic illegitimacy of Thai rule, and Islam was but one of many characteristics that separatist groups relied upon to define themselves. This may be changing. Increased religious rhetoric, the targeting of Buddhist monks and civilians, and the impact of exigent circumstances, such as the U.S.-led War on Terror, may indicate that the conflict’s ideological center of gravity is shifting away from the ethno-nationalist separatism of the 1970s. The objectives of the various groups all revolve around the establishment of an independent, Islamic state or incorporation into Malaysia. In one of the few public statements by a separatist group representative since the upsurge in violence, a member of the PULO articulated the group’s objectives: We want to take our own land back. I won’t say we want to separate from Thailand as that would imply we were part of Thailand in the first place. People who live in Pattani have to take their land back—it’s their duty. The government should accept the history of Pattani—that it was independent before and that local people are still fighting for their land. This is not about religion, it’s about land. But obviously the new state would be Islamic.107

This statement casts doubt on the view that the insurgency has wholly taken on the characteristics of a radical Islamist or jihadist conflict. Nevertheless, organizations like the GMIP and BRN-C, along with the religious fervor displayed by the assailants at the Kru Se mosque, are compelling. What is certain is that the most active and committed separatists seek nothing short of an independent and Islamic Pattani state. The organizations have continued to rely on traditional insurgent strategies since 2004—Thai police, military, and government “hard targets” remain priorities. However, by increasing attacks on soft targets and civilian populations, insurgents are clearly seeking to demonstrate that the government cannot effectively maintain peace and security. Intracommunal violence among Malay-Muslims is an effort to weaken levels of cooperation between Malay-Muslims and government authorities through retributive violence and the branding of those Muslims who assist security forces as apostates. The shadowy nature of the organizations operating in Pattani makes it difficult to assess whether any of them would be willing to engage in negotiations. This “conspiracy of silence”108 may be indicative of an eagerness to pursue violence, for the short-term, as an end in itself in order to bide time and continue to build its capacity while destabilizing the region.

107 Interview: S Thailand Insurgent, BBC News, Aug. 7, 2007, available at http://news.bbc. co.uk/2/hi/asia-pacific/5251896.stm. 108 See Zachary Abuza, Conspiracy of Silence: Who Is Behind the Escalating Insurgency in Southern Thailand? Jamestown Terrorism Monitor, May 6, 2005, at 4.

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Transforming the Pattani region into a sustainable peace system requires a close examination of what forces sustain and shape the conflict. The separatist conflict in southern Thailand is fundamentally a tension between a minority population with a cohesive identity and a perception of illegitimacy toward the political authority. This identity-legitimacy dynamic has remained constant throughout the history of the Pattani insurgency; however, the relative importance of forces feeding into that dynamic has evolved over time. This section offers a framework for understanding the underlying societal tensions and grievances that give rise to and provide a base of support for insurgent activity. For the purposes of this chapter, these “conflict drivers” are broken down into three, dynamically reinforcing categories: identity, behavior, and structure. The three categories conceptually overlap but nevertheless help to simplify the various historical motivations for conflict. The section will then turn to the issue of Islam and, in particular, militant Islamism as a defining motivation for conflict. The chapter argues that Islam, a historic component of identity in the region, has been increasing as an independent justification for violence, but that it is short-sighted to dismiss or disaggregate the historic, primary factors. A. Conflict Drivers: Identity, Behavior, and Structure109 The conflict in Pattani is driven, at its most fundamental level, by three dynamically reinforcing sentiments: (1) a perception that Malay-Muslim identity, as expressed through religion, language, culture, etc., is under attack by the Thai-Buddhist government and that a lack of identity affinity makes the government’s rule illegitimate; (2) resentment of and reaction to the behavior of the Thai government, particularly with respect to the actions of the security forces; and (3) structural asymmetries between the Pattani region and the rest of Thailand with regard to economic development, opportunity, and infrastructure. 1. Identity Understanding identity drivers is a critical element in any peacemaking strategy. Pattani Muslims “give primacy to their ethnic identity [. . .] ethnicity and religion are intermixed with each other, with religion being perceived in ethnic perspective [. . .] it serves as the foundation for the interpretation of nationalist and religious aspirations of the group.”110 The region is bound to the rest of the Malay-Muslim world by a common history, culture, religion, and language; yet, that commonality is divided by a physical and political border that has, unnaturally (from the perspective 109 For a similar categorization of conflict drivers see generally, NRC Report, supra note 33, at 5-7. 110 Yusuf, supra note 9, at 175.

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of many Malay-Muslims), incorporated the region into a nation-state with which it does not share a common identity. The importance of group identity in Pattani cannot be seen in a vacuum, but rather it must be viewed in the context of decades of perceived encroachment upon it. Admittedly, there are those within the insurgency who perceive Thai-Buddhist authority as facially illegitimate by virtue of the fact that the nation is not a MalayMuslim state. Nevertheless, the majority of locals have reacted to policies and institutions that they view, correctly or incorrectly, as purposefully attempting to erode their identity. When asked to categorize themselves, local villagers do not perceive themselves as Thai citizens. Instead, “some reply that they are ‘aukhae nayu’ (a Malay), not [. . .] ‘aukhae siyam’ (a Siamese). It is possible that they are afraid of saying ‘a Thai’ because in the understanding of some people, ‘Thais or Siamese are Buddhists.’”111 Some of the most blatant infringements on Malay-Muslim identity occurred in the four decades following Thailand’s transition away from its former monarchical system of government. A series of autocratic leaders, beginning with General Phibun in 1938, suppressed traditional concepts of identity in order to promote a single concept of Thainess, which was thought to be the basis for a stable and secure nation. The primacy of identity is evident in the first platform presented to the government by Haji Sulong. Among his seven points, including increased political autonomy and economic reconstruction, Sulong demanded that the government use both Melayu and Thai in local government offices, provide for the teaching of Melayu in staterun schools, and allow the Office of the Provincial Islamic Committee (as opposed to the central government) to issue regulations on Islam.112 In fact, the creation of the BRN separatist group was primarily a response to the 1961 language policies,113 which the leadership saw “as another effort to assimilate Muslims and weaken Malay culture.”114 Historically, the education system is an institution through which the government has sought to dampen traditional sources of Malay-Muslim identity in favor of a more homogenized concept of Thainess. Resentment of government education policies existed as early as 1921 with the Compulsory Primary Education Act requiring all children to attend state primary schools to learn the Thai language. The enforcement of this statute “was a huge affront to Malay Muslims, who perceived it as a direct attack on their culture, religion and language. The state schools not only taught a secular curriculum in Thai, but included instruction in Buddhist ethics, with monks often serving as teachers.”115 The 1961 Educational Improvement Program mandated that all religious schools be registered with the state and administered through a central authority. Schools were forced to adopt a secular curriculum, significantly reducing religious teaching. Many unregistered pondoks continued, and it is these schools that are thought to be a central network for insurgent recruitment today. Recognizing both the adverse cul111 112 113 114 115

NRC Report, supra note 33, at 30. Arya, supra note 21, at 25-26. Asia Report No. 98, supra note 24, at 7. Id. Id. at 3.

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tural impact of past education policies, and the fact that test scores among MalayMuslims are significantly lower than those in the rest of the country, in 2006 the Minister of Education announced reforms designed to increase Muslim religious education and create a more localized curriculum.116 Language, related to both ethnicity and religion, is an additional determinate of Malay-Muslim identity. As part of the nationalist policy campaigns of the midtwentieth century, the government held that “[t]he progress of Thailand depends on the usage of the national language and alphabet.”117 These policies failed to eliminate linguistic diversity, as children would choose education in the pondok system of religious school that instructed students in Melayu and used the localized Arabic script of Jawi. Language policies impacted economic opportunities for Malays throughout the region. Thai, taught in state-administered public schools, was the official language of the local bureaucracy, and thus Malay-Muslims were prevented from seeking government jobs due to language deficiency. 2. Behavior From the perspective of the Muslim minority population, and the separatist organizations in particular, behavioral drivers of tension include chronic mismanagement and corruption, disproportional and extrajudicial responses to violence, and perceived institutionalized discrimination on the part of government authorities. Locals have viewed the Thai military response to past acts of violence as disproportional throughout the conflict. Although claims of military and police brutality had eased in the 1990s, the recent surge in violence on January 4, 2004, resulted in the declaration of martial law by the Thai government on January 5. The Thai government reacted with a swift brutality reminiscent of the 1970s during the anti-Communist military campaigns. The draconian measures used by Thai forces resulted in widespread protests throughout the following weeks and months, with the Thai prime minister admitting to the use of excessive force during the Kru Se mosque raid.118 The local Muslim population believes that security forces are responsible for extrajudicial killings, the use of indiscriminate and unfounded “blacklists,” and the suspicious disappearances of leading Muslim figures.119 In March 2008, a U.S. government report “criticized the widespread torture of suspects. Last year 751 people died in prison or police custody. Abuses by police (and soldiers) have worsened. [. . .] Predictably, opinion polls show the police are widely mistrusted.”120 Endemic corruption and high-levels of bureaucratic incompetence are another source of hostility, particularly vis-à-vis the police.121 For decades, the southern region has served as the deposit location for the most inept and corrupt of Thai military 116 Arya, supra note 21, at 47-48. 117 Id. at 35. 118 Thai PM Admits “Excessive Force,” BBC News, July 31, 2004, available at http://news. bbc.co.uk/1/hi/world/asia-pacific/3942153.stm. 119 See, e.g., Asia Report No. 105, supra note 71, at 9. 120 The Thai Police, supra note 3. 121 See id.

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and civilian officials.122 Even during periods of peak accountability, the civil-military institutions responsible for holding corrupt or abusive officials accountable would remove officials only to have the positions back-filled by persons of equally poor quality. Of course, it would be myopic to view the behavioral drivers of the conflict as originating solely with the security forces, as an extension of Thai policy toward the region. Insurgent attacks, particularly against civilians, are an obvious “behavioral driver” of the conflict. In keeping with traditional insurgent strategy, separatist attacks fuel cycles of violence by seeking to stimulate excessive reactions by Thai security forces in an effort to prove that the government is ineffective in protecting its citizens. 3. Structure Structural drivers, which include issues of economic development and infrastructure, have been arguably less important as compared to identity and behavioral determinants of violence. Nevertheless, structural grievances fuel perceptions of government illegitimacy among the population, and they must be addressed in any comprehensive peacemaking strategy. From the 1980s until the Asian financial crisis of 1997, Thailand was one of the world’s fastest growing economies. Many Malay-Muslims believe that they have received a disproportionately small share of those benefits. The government’s own National Economic and Social Development Board has indicated that the Pattani region is home to two of the four poorest provinces in the country (Narathiwat has a poverty rate of 45.6 percent, while Yala has a poverty rate of 37.9 percent).123 The government has instituted economic growth and development programs in the southern region; however, the programs have not led to sufficient job growth or significantly improved living standards for the Muslim minority.124 Within the employment context, higher-paid, higher-valued jobs are held disproportionately by Thai-Buddhists. Other structural factors, such as high levels of illiteracy among the local Muslim population (30.4 percent),125 also contribute to a perception of relative deprivation. B. The Evolving Role of Religion as an Independent Conflict Driver A general trend, though one that may be overemphasized, is that the conflict in southern Thailand has become imbued by militant Islamism, namely an ideology that holds that Islam is not only a religion but also a political system that must be achieved by force. From this perspective, the conflict in Pattani is no longer a separatist struggle defined by the forces above, but rather the struggle to achieve an Islamic 122 See Thailand Islamic Insurgency, GlobalSecurity.org, http://www.globalsecurity.org/ military/world/war/thailand2.htm. 123 Abuza, supra note 8 at 73. 124 See Jitpiromsri, supra note 80, at 99. 125 Id.

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government as an end in itself. The competing views over the relative importance of Islamism as a new ideological center of gravity for the separatists do not necessarily affect the goals of the organization. Both justifications might lead organizations to advocate the establishment of an independent, Islamic state (or sultanate); however, the reasoning would be starkly different. Though it is impossible to calculate the relative importance of issues such as religion, economics, or the impact of Thai policies, it is clear that “[s]ince the 4th January 2004 event there has been an increase in the religious dimension of the conflict.”126 Scholars cite an “Islamic awakening” in southern Thailand, and Southeast Asia more generally, that began roughly in 1979 at the dawn of the Iranian Revolution. Though not a Shi’a region, the politicization of Islam is said to have spread and reignited a sense of a global ulema. Increased participation in the Hajj by MalayMuslims and opportunities for religious study in the Middle East are thought to have been the seeds for more conservative Islamic thought in the region. Analysts cite the September 11 attacks and Thaksin’s very public support of the U.S.-led War on Terror as an additional catalyst of Islamic consciousness in southern Thailand. However, it is important to understand that such forces did not transform the Pattani insurgency into an outpost of the Global Salafi Jihad. Local grievances remain of paramount importance. Certainly, government policies have served to galvanize and discredit the political authority in the eyes of the locals. However, “[s]ympathy for Muslims in Iraq [. . .] and beyond is [. . .] widespread in southern Thailand [. . .] in some cases it produces a sense of victimhood or even a siege mentality, but this translates only in a tiny fraction of instances into support for the use of violence locally.”127 The organizations thought to be responsible for a majority of the violence since 2004 have relied more heavily on radical Islamist ideology than had the primarily ethno-nationalist separatists operating in the 1960s and 1970s. For example, the emergence of the GMIP in 1995 signaled one such shift, as the organization consistently invokes the primacy of Islam in their struggle. In many respects, Wattana Sugunnasil is correct in stating that, [T]he separatist struggle [. . .] which was initially based on a Malay national liberation struggle [. . .] had [. . .] in the early 2000s taken on undertones of a radical Islamist ideology. For the first time the discourse [. . .] shifted to a radical Islamist call for a jihad against the Thai state, its local agents, and their Muslim allies.128

However, it is important to distinguish between the role of Islam as an increasingly important justification for armed struggle against the Thai state from analysis holding that insurgents have become enmeshed in a struggle with “the West” à la al Qaeda. There is little, if any, concrete evidence that significant connections exist between Malay-Muslim separatist and transnational jihadist entities, such as Jemaah 126 Yusuf, supra note 9, at 180. 127 Asia Report No. 98, supra note 24, at 32. 128 Sugunnasil, supra note 84, at 113-14.

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Islamiyah.129 Critically, there have been no attacks against Western targets and very limited use of suicide tactics. Despite the dearth of data points, analysts view the April 28, 2004, attacks as evidence that the insurgency has taken on a qualitatively different character. The attacks were orchestrated by an Islamic teacher named Ustadz Soh, and the perpetrators were markedly different: “young, deeply pious, poorly armed, and willing to die for their cause.”130 A document entitled Berjihad di Pattani was found on the body of one of the young insurgents. The document, written in the localized Arabic script of Jawi, espoused a worldview more aligned with transnational jihadists. It relied on the discourse of jihad, using terms such as shahid (martyr), kafir (infidel or nonbeliever), and takfir (accusing other Muslims as hypocrites as a justification for intracommunal violence) to frame the struggle against the Thai state. The authors of Berjihad di Pattani explain the illegitimacy of the Thai government in terms of an invasion of the Dar al-Islam (the land of Islam) by a kafir invader. The authors pay close attention to the notion of martyrdom and the personal benefits one can expect through the cathartic act of jihad. In essence, Berjihad di Pattani “seeks to cast the separatist struggle in explicitly religious terms. Attacking the Thai government as the oppressor of Islam and some local Muslims as betrayers of Islam, the authors have injected their polemics against the government [. . .] with traditional Islamist concepts.”131 Despite the virulent message espoused in the document, the appearance of Berjihad di Pattani is an isolated incident in southern Thailand. Since its discovery, there has been no other justification for violence analogous to that of the Global Salafi Jihad. Furthermore, separatists have not attempted publicly to align themselves with regional or international jihadist movements, transcending their struggle to part of a wider movement. Since 2004, the increase in civilian targeting, the stoking of intercommunal tensions, the increased reliance on IEDs, and the beheading of Buddhists has led many to question whether a seismic shift has occurred, a shift that would fundamentally alter peacemaking options. Changes in targeting and tactics and the increased use of religious rhetoric are significant but not dispositive. In a conflict in which one of the principle drivers is identity,132 Islam may be viewed simply as an increasingly important component of Malay-Muslim identity in comparison to past decades. Bernard Adeney-Risakotta is correct in saying that “Muslims in Southern Thailand [. . .] still put their hope in nationalism, in the form of a struggle for their own state against the dominant majority. However [. . .] the struggle for independence is often linked to pan-Islamic rhetoric that elevates religious ties.”133 129 See Michael Vatikiotis, Resolving International Conflicts in Southeast Asia: Domestic Challenges and Regional Perspectives, 28 Contemp. Southeast Asia 27, 33-34 (2006). 130 Sugunnasil, supra note 84, at 118. 131 Id. at 122. 132 See supra Subsection IV.A.1. 133 Bernard Adeney-Risakotta, Impact of September 11 on Islam in Southeast Asia, in Islam in Southeast Asia: Political, Social and Strategic Challenges for the 21st Century 328 (K.S. Nathan & Mohammad Hashim Kamali eds., 2005).

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Perceived ethnic discrimination, a widening conception of Islamic identity, structural poverty, and a historically autonomous identity are all examples of drivers for conflict in southern Thailand. However, the nexuses of interaction between these drivers are where observers can fully appreciate the true nature of the conflict. This interaction is critical insofar as it demonstrates that peacemaking policies cannot exist independent from one another. The actions of Thai police within the civilian population (behavioral inputs) are dynamically linked to identity cohesion among Malay-Muslims because locals view security practices as reinforcing a historical view of Malay-Muslims as a disenfranchised minority. Pattani has many elements that are common to the postcolonial experience of many modern nation-states: a border that divides an ethno-religiously linked people, a program of assimilation of the minority into the cultural form of the majority, disproportional economic benefits between the minority and the majority, etc. The key to the Pattani insurgency is the ways in which the motivations have become increasingly dynamic and interconnected over time. It is not useful to oversimplify the conflict by separating the religion, culture, tradition, history, economics, and language of the Malay-Muslim people of the Pattani region into separate categories of discontent. Violence begets more violence in Pattani, and actions by either insurgents or security forces fuel reactions that continue to reinforce the identity—legitimacy dynamic. A coordinated and lethal attack by insurgents may result in the institution of martial law and repressive (perceived or real) police tactics. This in turn feeds into historic grievances rooted in identity, culture, and religion that view government authority in the region as illegitimate and the source of all manner of perceived structural inequalities. V. Past Approaches to War-Stopping and Peacemaking in Southern Thailand This section briefly examines three different approaches to the “southern problem” since the annexation of Pattani. The first approach, as exemplified by General Phibun Songkhram, emphasized harsh military tactics to quell discontent coupled with policies aimed at eroding, as opposed to utilizing, the identity of the region’s population. General Prem’s strategy was much more conciliatory and ultimately more successful. It focused on political, economic, social, and security reform combined with opportunities for amnesty and limited, targeted counterinsurgency operations. The third, and most recent, is the approach taken by Thaksin from the time of his election to his removal in a military coup in 2006. His approach was reactionary, primarily hawkish, overtly politicized, and scattered with half-hearted attempts at reform. None of the three models was ultimately successful at completely eliminating political violence and transforming the region into a peace system. Nevertheless, General Prem’s model, with modifications, should serve as the starting-point for thinking about peacemaking strategies moving forward.

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A. The General Phibun Model At the time of General Phibun’s rise to power in 1932 the southern provinces were not yet in a state of insurgency, and, therefore, it is not entirely fair to qualify his approach as either one of “war-stopping” or “peacemaking.” However, tensions between the central authority and Malay-Muslims in the region were obvious, and sporadic violence had occurred. General Phibun, an admirer of the fascist states of Italy and Germany, was responsible for changing the name of the country from Siam to Thailand in 1939. In both policies and approach, General Phibun was an ardent nationalist who viewed national unity as the only means to territorial integrity and security. However, General Phibun’s conception of unity left no room for cultural, linguistic, or even religious diversity, let alone the ability to accommodate a competing conception of ethnic-Malay nationalism. The policies of Thaization that General Phibun championed sought to repress any other form of religion in the territory because, according to Phibun, religion and the stability of the nation could not be disaggregated. During this period, Buddhism was “the most important symbol of, and primary base for [. . .] national and cultural identification.”134 Thus, in an effort to maintain security and stability in the southern provinces, the strategy became to suppress traditional concepts of Malay-Muslim identity and attempt to inject what were thought to be the “proper” elements of Thai citizenship, namely Buddhism, the Thai language, etc. In this context, the government instituted policies banning traditional Malay-Muslim clothing and the use of the Malay dialect, constructing Buddhist temples in historically Muslim regions, and instituting the Thai Customs Decree.135 These policies, which were directed against minority populations throughout the country, were mostly pointed at the Malay-Muslims given the demographic composition of the Pattani region. The policies led to significant discontent and the rise of the April 1948 rebellion referenced above.136 Both generally, and in response to any form of organized political or separatist resistance, General Phibun looked only to swift and repressive military force for a solution. Under his rule “repression was the most common and effective means of removing political opponents, maintaining comprehensive control [. . .] and thus perpetuating military rule.”137 In fact, in a manner duplicated by the Thaksin administration decades later, General Phibun enacted decrees providing the security forces complete powers to arrest and detain suspects without trial.138 General Phibun’s autocratic successors continued this general strategy until the democratic revolution in 1973. The approach, which was successful neither in warstopping nor peacemaking, placed military repression and identity assimilation in 134 Saitip Sukatipan, Thailand: The Evolution of Legitimacy, in Political Legitimacy in Southeast Asia: The Quest for Moral Authority 198 (Muthiah Alagappa ed., 1995). 135 See supra Section II.A. 136 See supra text accompanying notes 22-23. 137 Sukatipan, supra note 134, at 199. 138 See id. at 198.

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the foreground. Interestingly, if one closely examines the specific demands of the leaders of the Haji Sulong rebellion of 1948, the goal of complete sovereignty never appears. Instead, among Haji Sulong’s “seven-points” was that the Thai government should give “full authority to one person to administer the four provinces [. . .] He or she should be elected by and from the people in the region.”139 In response, General Phibun’s administration arrested any proponents of Sulong’s demands.140 General Phibun’s approach transformed demands for regional autonomy under the Thai nation-state into advocacy for outright sovereignty. B. The General Prem Model Until 1980, “peacemaking,” from Bangkok’s perspective, consisted primarily of a military-led strategy aimed at destroying insurgent organization through force coupled with cultural assimilation. However, the new General Prem administration “launched a new strategy emphasizing enhanced public participation, economic development and a broad amnesty, which hundreds of communist and separatist fighters took up.”141 General Prem, a southerner, understood the identity politics of the region; furthermore, he was sensitive to demands for increased political participation, economic development, and an accountable and just security presence in the region. General Prem did not accede to insurgent demands for political autonomy or independence, but rather he addressed what he perceived to be the most pressing grievances in the eyes of the general population, while simultaneously offering insurgents amnesty. Among the significant elements of his strategy was the establishment of the Southern Border Provinces Administration Center (SBPAC). The SBPAC sought to integrate administrative and bureaucratic functions across the south in order to provide greater efficiency and accountability of government. Importantly, the SBPAC served as the structure through which the local population could lobby for reform. The committee was an “interface between Bangkok and local provincial administrations while acting as a watchdog on errant officialdom and liaising with local communities.”142 Originally administered by the Thai Army, SBPAC eventually came directly under the authority of the prime minister and included numerous local Malay-Muslim leaders. General Prem began to reverse the legacy of Thaization by providing local administrators significantly higher levels of cultural and religious autonomy while injecting needed infrastructure and economic development. Though unwilling to negotiate on the issue of sovereignty, General Prem understood the importance of decentralizing the generation of policies affecting local people. General Prem established village-level committees tasked with the promotion of economic development and security in order to imbue an increased sense of autonomy on local matters.143 139 140 141 142

Arya, supra note 21, at 25. Id. at 26. Asia Report No. 98, supra note 24, at 11. Anthony Davis, Thailand Confronts Separatist Violence in Its Muslim South, Jane’s Intelligence Rev., Mar. 1, 2004, at 20. 143 Asia Report No. 98, supra note 24, at 11.

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Directly addressing the local population’s concerns regarding Thai security force brutality, Prem established a Civil-Military Police joint headquarters (CPM 43) to coordinate all security operations in the region. CMP 43 was “under strict orders to ensure that extra-judicial killings and disappearances ceased.”144 The SBPAC was the institution through which military and police personnel were held accountable, investigated for crimes or corruption, and removed from the region if found guilty. By the most important measurable standard, levels of violence and insurgent attacks, General Prem’s strategy succeeded. Following the introduction of this strategy, violence dropped off dramatically, hundreds of insurgents accepted amnesty offers, and new mechanisms had been established to address locals’ grievances without resorting to political violence. Unfortunately, the strategy did not produce the long-term solution envisioned. Often, the removal of ineffective and corrupt security personal simply resulted in the introduction of similarly behaved officers from other regional commands. Furthermore, key social policies designed to promote and secure Malay-Muslim identity were often half-hearted. Religious schools were still perceived as being under the bureaucratic control of non-Muslim authorities, and language policies were still seen as disenfranchising Malays and suppressing their identity. Despite implementation flaws and lingering Thai-centric policies, the key to General Prem’s model was its emphasis on drawing away popular support for insurgent goals by addressing the underlying grievances of the population. Central to the strategy was a “[p]olicy of attraction, aimed at drawing off sympathy from separatist groups by increasing political participation and lavishing economic development projects on the region.”145 Prem approached the south in a multifaceted way and possessed an ability to speak candidly about the shortcomings of government policy and action. In many ways, the goodwill and progress that was generated during his tenure as prime minister, and the follow-on success of the programs and institutions he created, would evaporate during the prime ministry of Thaksin Shinawatra. C. The Thaksin Model Upon taking office, Thaksin viewed political violence in the southern provinces as a form of criminality, closely associated with the drug trade, and ultimately not threatening to national security. Furthermore, seeking complete control and political dominance over rural Thailand, he viewed the south as the support base of his political rivals and a region that was influenced by networks outside of his direct control, particularly the monarchy and the military. Thaksin sought to reverse the policies of decentralized, local authority spearheaded by General Prem and to increase central control. In May 2002, Thaksin abolished the SBPAC.146 Shortly thereafter, Thaksin dissolved the joint civilian-military police body (which was largely spearheaded by the military) and handed primary 144 Id. 145 Id. 146 Duncan McCargo, Thaksin and the Resurgence of Violence in the Thai South, in Rethinking Thailand’s Southern Violence 50 (Duncan McCargo ed., 2007).

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control of security operations and policy to the police.147 As a former police officer, this move was an attempt to assert personal control through cronyism and the politicization of regional administration. Thaksin relied on extrajudicial tactics and swift, often repressive, measures to handle security issues. With the dissolution of the traditional military structure, and the constant, politically motivated reshuffling of key security and political posts, local intelligence-gathering capabilities, as well as legitimacy among the local population, were swiftly eroded. Following the January 4, 2004, attacks, Thaksin immediately enacted martial law across Yala, Narathiwat, and Pattani provinces.148 Thaksin chastised the dead military officers and set unrealistic and arbitrary deadlines for the capture of those responsible for the attack, while dispatching an addition 3,000 troops to the region. As violence in the region increased in 2005, Thaksin introduced “draconian legislative measures by emergency cabinet decree. These included the [. . .] the detention of suspects without charge and the banning of newspapers [. . .] deemed a threat to national security.”149 Despite half-hearted attempts to refashion some of General Prem’s more effective strategies, such as increased political accountability and cultural autonomy in the south, Thaksin generally rejected such options in favor of military solutions. Thaksin’s “handling of the South reveals [. . .] his preference for the use of violence to tackle problems, and his disdain for “softer” methods such as discussion and negotiations.”150 Following his stark electoral defeat in the region during the 2005 election, Thaksin responded by dividing the region into “loyal” and “disloyal” zones and cutting government funds to the latter.151 Thaksin pursued the modern-day version of General Phibun’s military-centric model while simultaneously politicizing the bureaucratic and security operations in the south. One analyst, while understanding that numerous underlying tensions brought about violence, sees one reason why the insurgency has intensified in recent years: “[t]he common denominator underlying the renewed levels of violence is Thaksin [. . .] his thinking, his approach, and his strategies.”152 VI. Peacemaking Strategies in Southern Thailand Organized insurgency in the Pattani region has existed since the late-1940s. Certain periods have been marked by heightened conflict or simmering tensions; yet for sixty years the Thai government has been incapable of, or perhaps uninterested in, stopping war and making peace in southern Thailand. History has demonstrated that military-centric approaches to insurgency in Thailand that do not also address underlying societal grievances ultimately fail. To date, the most comprehensive attempt at formulating a peacemaking strategy was commissioned, surprisingly, during the Thaksin administration. The NRC 147 148 149 150 151 152

Id. Asia Report No. 98, supra note 24, at 17. Ukrist, supra note 49, at 70. Id. at 71. Id. at 83. Id. at 87.

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was tasked with “recommending policies, measures, mechanisms and ways conducive to reconciliation and peace in Thai society, particularly in the three southern border provinces.”153 Its final report was published in May 2006 and was received with mixed results. The Thaksin administration, which rejected the report’s conciliatory posture, ignored it. The NRC Report focused on addressing what it understands to be the longstanding grievances of the region’s Malay-Muslim population and hews closer to the approach taken by General Prem than that of Thaksin. The report does not emphasize the necessity for improved counterinsurgency (COIN) operations, which is one of its drawbacks; however, it does draw the correct conclusion that addressing cultural, political, structural, and behavioral grievances among the general population is an important component of weakening local support for insurgent activities and deescalating intercommunal tensions that exacerbate violence. The NRC Report is a highly politicized document, but it provides a strong foundation for thinking about peacemaking in the region. In recommending strategies and specific policies for the current conflict, the report provides a useful focus but not an exclusive one. There are those in the region who will not be deterred or accommodated and, as such, need to be captured and killed. Peacemaking cannot be a binary choice between security operations or political and cultural concessions; it must be a dynamic interaction of the two. Duncan McCargo has accurately captured the current state of affairs: By 2006, there was a clear divide between two broad-brush approaches to the southern conflict. For most government officials [. . .] the conflict remained essentially a security problem [. . .] addressed by refusing to concede ground, employing tough legal measures [. . .] and emphasizing a policy of apprehending ringleaders [. . .] [f ]or academics, journalists, activists [. . .] conflict was essentially a political problem requiring political solutions [. . .] In fact, security approaches to the conflict had conspicuously failed to address the problem.154

A. Challenges to a Lasting Peace Certain realities must be confronted when considering approaches to peacemaking in southern Thailand. First, the paramount importance of territorial integrity to the Thai state rules out any negotiations or concessions that would result in territorial sovereignty for the Malay-Muslims in southern Thailand or incorporation of the region into Malaysia. This principle of absolute territorial integrity is codified in the Thai Constitution, “Thailand is one and indivisible kingdom.”155 Furthermore, the principle is rooted in history and paramount to the state’s conception of security and identity throughout the colonial period when it was the only nation in the region to avoid colonial domination. 153 NRC Report, supra note 33, at cover letter. 154 Duncan McCargo, Postscript: No End in Sight? in Rethinking Thailand’s Southern Violence 169-72 (Duncan McCargo ed., 2007). 155 Thai Const. ch. 1, § 1.

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Second, the effective lack of a leading insurgent organization(s) and command makes the prospects for track-one peace negotiations highly unlikely in the near future. Put simply, even if the government was willing to make significant political concessions to the separatists, it is unclear who would be empowered to negotiate on their behalf. Therefore, at this stage, it is irrelevant to discuss what steps insurgents could or should make in order to facilitate a transition toward a peace system. Third, reliance upon an outside peace-keeping force or negotiator is out of the question. The regional multilateral body, the Association of Southeast Asian Nations (ASEAN), operates on a strict theory of sovereignty whereby the member states will not interfere in the internal security problems of other members. “Strongly nationalist politics [have] tended to resist the involvement of third parties and international organizations.”156 The only international actor with a role to play in the peacemaking process is Malaysia due to the shared border and the ethno-religious affinity of the southern Thais with the northern Malays. B. Elements of a Comprehensive Peacemaking Strategy in Southern Thailand 1. Draining the Bathwater: Addressing Long-Standing Grievances of the General Population General Prem understood that the key to calming the violence in the Pattani region was not a central focus on COIN operations, but rather policies and structures aimed at addressing the most pervasive local grievances. As with any insurgency, insurgents draw strength from the passive support of the local population. Furthermore, COIN operations work best when counterinsurgents are aided by local populations, among which the insurgents exist, hide, and operate. Increasing the legitimacy of the Thai government while taking significant strides toward resolving underlying tensions between Thai-Buddhists (both civilians and officials) and Malay-Muslims will help increase local cooperation and reduce the separatists’ support base. Increasingly, commentators and scholars have realized that a major obstacle to peace is the government’s “unwillingness to recognize the nature of the conflict as one involving deep-rooted social and cultural issues, preferring [. . .] tough security measures to extinguish the violence.”157 First, the government needs to reverse its perceived and real legacy of ethnic, cultural, and religious homogenization. This should be pursued through linguistic, educational, and religious reforms in the region. Among the proposals the government should consider is creating a local bureaucracy that can operate effectively in both Melayu and Thai.158 This would dramatically increase government job opportunities for Malay-Muslims, provide greater access to government services, and signal the population that the government does not seek to dampen the linguistic identity of the region. 156 Vatikiotis, supra note 129, at 29. 157 Id. at 37. 158 See NRC Report, supra note 33, at 100; Arya, supra note 21, at 38-40.

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Furthermore, the government must live up to the goals of its 2006 education reform proposals. Currently, state-administered schools provide only two hours per week of religious education. The local population views this as wholly unacceptable, and parents often remove their children, placing them in unregistered pondoks that teach little if any secular curricula or Thai language. Government education policy must promote education in local history, traditions, and religion, as well as significantly increased instruction in Melayu. Melayu is actually considered a foreign language in the curricula of state schools despite being the primary language of the region. With respect to religious reform, the government must reorganize the bureaucratic oversight of religious institutions in the region. Currently, Islamic affairs and institutions are directly managed by four government agencies headquartered in Bangkok (the Ministries of Education, Culture, Interior, and Justice). Religious administration is perceived as overly invasive and fundamentally unjust. The NRC Report calls for the collapsing of bureaucratic functions under fewer agencies and the establishment of local councils of Islamic leaders (shura councils) to drive “the work of the Islamic community in general.”159 However, the responsibility for choosing those leaders should not necessarily rest with the central government, so as not to confer illegitimacy on such institutions in the eyes of the locals. The government must resist the temptation to automatically associate religious institutions with the insurgency, cracking down too heavily on the activities of local mosques. The government needs to promote better understanding of the Islamic faith and culture internally, and, where possible, seek to maximize religious independence in the provinces. Second, the government should seek to decentralize political authority while maintaining territorial integrity. Again, Pattani sovereignty is nonnegotiable; however, the Thai government need not be handcuffed by its traditional policies of complete, central control that were aimed at securing its borders in the face of colonialism and then communism. The government should explore localizing certain, nonsecurity, government functions. This need not go so far as to institutionalize regional autonomy by creating a regional parliament or excessive bureaucracy, but in state functions that heavily impact identity, such as the administration of religious organizations, accountability should be promoted at the grassroots level. Third, the government should continue to push ahead with economic reforms and infrastructure development to alleviate the sense of relative deprivation that sows intercommunal tensions and undermines the legitimacy of Thai rule. This sentiment existed under the leadership of Haji Sulong who in 1947 included tax policy among his seven points: “[t]ax and income from the four provinces must be spent in the four provinces only.”160 Among the NRC Report’s seven “structural-level measures to solve violence,” the first two address local rights to natural resources and the creation of jobs in the Pattani region.161 This is very important. Historically, scarce natural resources have been extracted for use in northern provinces and administered 159 NRC Report, supra note 33, at 90. 160 Arya, supra note 21, at 25. 161 See NRC Report, supra note 33, at 74-78.

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entirely by the state. Providing local councils with the ability to influence natural resource policy consistent with local cultural norms and interests will help alleviate tensions. Fourth, the government needs to create unified and accountable institutions. The government was most responsive to the underlying grievances of the Pattani region after General Prem had unified civil, police, and military functions under the SBPAC. Government institutions have suffered under Thaksin due to the frequent rotation of officials for political purposes, the placement of corrupt and incompetent officials in the southern administration, and a lack of local knowledge or understanding of Malay-Muslim culture within government leadership. One entity should have oversight of those government functions that cannot be localized and provide a mechanism through which locals may lobby for reform or lodge complaints against certain officials. Officials found to be corrupt or unfit for duty in the region must be transferred out and replaced by those competent to serve. 2. A New Approach to Counterinsurgency (COIN) Operations Peacemaking, in this case, best achieved through nonmilitary means, cannot take place without simultaneously removing security threats to the population, particularly organized separatist groups. Conversely, COIN operations will never be effective if the civilian population is distrustful of and confrontational with the counterinsurgent forces. It is important that COIN operations recognize this dynamism and understand that the approach that COIN operations take will directly impact attempts to relieve underlying grievances. This concept is captured by the U.S. Army and Marine Corps Counterinsurgency Field Manual under the heading of “Unity of Effort.” The idea recognizes that all levers of government power and policy, economic, social, cultural, and military, should be integrated toward a common goal.162 Beyond better integrating civilian and military missions, the government must reform security force policies and personnel to better conduct COIN operations within the rule of law. The standard insurgent strategy is designed to provoke harsh, often inhumane reactions on the part of counterinsurgents in an effort to further disenchant the local population with the government. It is not always possible to exercise restraint; however, the Thai security forces have not approached the COIN mission with a reasonable degree of discipline. Commanders must better instill the values of proportionality and discrimination in their soldiers and corporal-level commanders.163 To be successful, COIN in southern Thailand cannot continue to be hamstrung by past mistakes and mired in claims of brutality, excessive force, torture, and extrajudicial killing. Structural reform of security services in southern Thailand will not only greatly increase the effectiveness of COIN operations, but it will also serve to increase the legitimacy of the governing authority. In the Malayan Emergency, the concept of unity of effort was met with the structure of “unity of command,” whereby Sir 162 See U.S. Army and Marine Corps Counterinsurgency Field Manual No. 3-24, at para. 2-1 (Dec. 15, 2006). 163 See id. at paras. 7-30 to 7-37.

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Harold Briggs oversaw all facets of the counterinsurgent effort.164 The Thai military must rein in control over all elements of the security forces engaged in the COIN effort, as well as integrate its unitary structure with the various civilian authorities seeking to address underlying societal grievances. A further priority must be to disband and disarm those paramilitary forces that operate under the official sanction of the Thai military, particularly the Rangers and Or Sor. Paramilitaries possess significantly less discipline than regular Thai military forces and are likely to provoke more violence than they help to alleviate. It is always dangerous to disarm paramilitary forces due to the probability that they will engage in other forms of violence, potentially on the side of the insurgents. Although there is potential for the paramilitaries to join the militias, cutting off government funding and material support should dampen their capabilities as well as send a signal to the population that the military is committed to professionalism and discipline when operating among the population. Finally, the government must severely curtail the activities of the police force in the region in order to preserve their law enforcement, as opposed to COIN, function. The Malayan Emergency, under the leadership of Sir Gerald Templer, benefited by drawing a clear distinction between police and COIN functions.165 Unfortunately, the recent legacy of corruption and brutality, in addition to tension between the military and police commands in southern Thailand, will likely mean that the police will not even be able to serve in a traditional, community justice capacity until wholesale reform of that institution takes place. 3. Relieving Intercommunal Tensions: Locating Middle-Range and Grassroots Agents of Peace Sustainable peace is often not addressed at the level of senior leaders within contending organizations, but rather at regional and local levels. As noted earlier, firsttrack negotiations are hampered by, among other things, a lack of known leadership within the insurgency. However, peacemaking does not occur only at the level of political and insurgent leadership. Lederach distinguishes between three levels of leadership in a divided society and provides options for peacemaking at all levels: top, middle-range, and grassroots leadership.166 As intercommunal violence increases, identifying agents within Thai-Buddhist and Malay-Muslim communities who can facilitate reconciliation and community negotiation becomes a critical element of peacemaking in Pattani. In Lederach’s model, “middle-range” or “second-level” leaders may include ethnic or religious leaders, respected academics, or humanitarian leaders (nongovernmental organizations (NGOs)). These individuals have legitimacy due to their 164 John A. Nagl, Learning To Eat Soup with a Knife: Counterinsurgency Lessons from Malaya and Vietnam 71 (2002). 165 See John Coates, Suppressing Insurgency: An Analysis of the Malaysian Emergency, 1948-1954, at 123 (1992). 166 See generally John Paul Lederach, Building Peace: Sustainable Reconciliation in Divided Societies 39-55 (2004).

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lack of connection to either the government or the insurgents.167 “Grassroots leadership” or “third-level” leaders includes individuals with an even greater connection to local populations and may include community developers, health officials, etc.168 These individuals can be identified in order to lead intercommunal peace negotiations, mediations, problem-solving workshops, etc. Of course, much of this depends upon the ability of the security forces to create the space necessary for such activities to occur. However, the Thai government and military do not have the local legitimacy to engage in such activities. Among second- and third-level leaders, incorporating local imams and Islamic scholars is critically important to the process of peacemaking. As the separatist conflict takes on an increasingly religious character, particularly in light of the existence of documents such as Berjihad di Pattani, moderate religious leaders must provide a counternarrative to delegitimize such virulent messages. 4. Malaysian Cooperation Critical to the war-stopping and peacemaking process is a more cooperative relationship between Thailand and Malaysia. Relations between Malaysia and Thailand soured during the Thaksin administration. The Malaysian prime minister personally condemned Thaksin’s hawkish policies toward Malay-Muslims in the south in addition to Thaksin’s support of the U.S.-led War on Terror.169 Furthermore, in August 2005, a standoff over the return of 131 Malay-Muslims claiming refugee status in Malaysia sparked serious and lasting tensions between the two governments.170 Cooperation is essential for a number of reasons. First, COIN operations against insurgents will never be successful if the border between Malaysia and Thailand remains porous, and insurgents can systematically seek refuge in northern Malaysia. The governments must agree to increased security and intelligence cooperation and, perhaps, structure limited terms under which Thai security forces may pursue insurgents who flee across the border. Second, the Malaysian government must be convinced to take action against those who provide material and ideological support to insurgent organizations operating in southern Thailand. This is particularly difficult due to the domestic politics of Malaysia. The stronghold of the conservative, Islamic opposition party (PAS) is in the northern state of Kelantan, which borders Thailand. Any increase in security operations, or a crackdown on those who support separatist activity, will have severe political repercussions. Third, a positive and cooperative relationship between the Thai and Malaysian governments is a clear signal that the Malay-Muslim–controlled Malaysian government supports the territorial integrity of Thailand and would not support either the 167 See id. at 41-42. 168 See id. at 42-43. 169 Nick Cumming-Bruce, Some Neighbors Fault Hard-Line Approach in Thailand’s South, Int’l Herald Trib., Nov. 18, 2004, available at http://www.iht.com/articles/2004/11/ 18/1firstR_37.php. 170 Asia Report No. 105, supra note 71, at 9.

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region’s incorporation into Malaysia or its independence. This development could further dampen the ideological message of the separatist groups if the Malaysian government is publicly vocal against the goals of the insurgents. There are reasons to be optimistic on this front. The removal of Thaksin in the 2006 coup led to a cooling of tensions between the two countries. In a meeting with the Malaysian prime minister and General Surayud, the two countries agreed to extend the security barrier an additional six miles, in addition to including the Pattani region in an economic development zone to alleviate poverty in the region. The Malaysian government went so far as to indicate that, if the Thai government could “figure out the right group [to talk to],” the Malaysians would consider serving as mediators.171 VII. Conclusion No single strategy or approach will transform a system of conflict and violence into a system of peace. History, identity, geography, personality, and the interests of outside actors are but a few conflict-specific determinants of whether a peacemaking strategy will succeed or fail in a given instance. As such, peacemaking must begin with an honest assessment of why conflict is occurring and what is motivating those causing, or permitting, the occurrence of political violence, as opposed to merely applying peacemaking tools from other conflicts. The separatist insurgency in southern Thailand is one where prospects for sustainable peace are ultimately tied to the underlying grievances of the minority MalayMuslim population. The rhetoric and tactics of today’s separatist groups may indicate a growing association with the ideology of militant Islamism or Salafi Jihadism, but lessening the societal tension between Malay-Muslim citizens of Thailand and their government is the key to lasting peace. The lessons learned from generations of ultimately unsuccessful attempts at war-stopping and peacemaking make clear that COIN operations by the security forces are one small component of a much larger process—one that must use all of the government’s levers of power, not just its military capability. A lasting peace must balance the territorial integrity and security of the Thai state with the human rights of the Malay-Muslims throughout the Pattani region. Strategies that wholly forsake one goal in the pursuit of the other will ultimately fail. The challenge is to locate leaders—at both the elite and grassroots levels of government and society—who are willing to accommodate and consider the positions of their “adversaries.” Such leaders must recognize that, despite decades of local evidence to the contrary, multiethnic and multireligious peace systems are sustainable.

171 Ian Storey, Malaysia’s Role in Thailand’s Southern Insurgency, Jamestown Terrorism Monitor, Mar. 15, 2007, at 7, 9.

Chapter 6 War-Stopping and Peacemaking in Mozambique Caroline A. Gross

I. Introduction On October 4, 1992, the government of Mozambique and the opposition force Renamo signed a General Peace Agreement (GPA) in Rome, ending a sixteen-year conflict that tore the country apart and followed on the heels of a brutal elevenyear independence struggle. Though Mozambique is still a poor country with a host of social and political problems, it has not returned to war and has recovered at a remarkable pace. With only a few small flare-ups of violence and a government that has seen three free and fair elections at regular five-year intervals, refugees and internally displaced persons have long since returned home. Donor agencies, investors, and, increasingly, tourists have flocked to what many call “Africa’s Success Story.” Many of the factors that enabled Mozambicans to make peace were the result of external actors and fortune; nevertheless, an analysis of the war and the ensuing peace yields lessons for would-be peacemakers in other parts of the world. The analysis develops in four parts. Section II provides a background history of the conflict, from the Portuguese arrival in Mozambique to independence. Section III discusses the factors, both internal and external, that fueled the war. Section IV discusses the changes that enabled the parties to consider negotiations and the peace process. Section V analyzes the factors that allowed the peace to last and explains the lessons that this case study provides. II. Colonial History and Independence, 1498-1975 A. Portuguese Presence The Portuguese, who first arrived in Mozambique in 1498, barely established a colonial presence for the majority of their first four centuries in East Africa. They kept to a few settlements along the coast of the Indian Ocean, involving themselves in the slave trade, and they avoided the kind of systematic colonial penetration practiced 

See, e.g., Mary H. Moran & M. Anne Pitcher, The “Basket Case” and the “Poster Child”: Explaining the End of Civil Conflicts in Liberia and Mozambique, 25 Third World Q. 501 (2004); Jeremy M. Weinstein, Mozambique: A Fading U.N. Success Story, 13 J. Democracy 141 (2002).

K. Eichensehr and W.M. Reisman (eds.) Stopping Wars and Making Peace: Studies in International Intervention ©  2009 Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17855 7. pp. 185-211.

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by their British and French counterparts in other parts of Africa. After the Berlin Conference of 1884, Portugal feared that its minimal presence in Mozambique and Angola would invite the stronger European powers to take away the land allotted to Portugal, so it attempted to strengthen its hold on Mozambique with agricultural development. However, Portuguese cotton and sugar plantations established in the early twentieth century were largely unsuccessful. The Portuguese immigrants who came to run the plantations lacked agricultural know-how, and they created largescale resentment by forcing native Mozambicans to labor on the farms. The economy developed as a result of the mining boom in South Africa and southern Rhodesia, which created a demand for Mozambican ports and migrant laborers. Historian James Ciment writes that Mozambicans’ shared experience laboring in the South African mines and being distrusted by the black South African laborers helped develop a Mozambican nationalism, which would manifest in a unified liberation movement that cut across ethnic and regional boundaries. When the dictator António Salazar took control of Portugal in 1932, he sharply increased Portuguese emigration to Mozambique, mainly among unemployed peasants, and worked to resuscitate the Mozambican cotton and sugar plantations. Because Mozambicans were forced to labor on plantations and were barred from even low-wage positions in the Portuguese system, new Portuguese arrivals were able to find jobs in the growing textile industry, ports, and administration. In the 1950s and 1960s, when France and England yielded to demands for independence in Africa, Salazar and his successor Marcelo Caetano refused and redoubled efforts to settle more colonists. To combat the incipient independence movement, Portugal’s secret police force, the PIDE (International and State Defense Police), harassed, tortured, and exiled nationalist leaders. B. The Struggle for Independence In 1962, three nationalist movements came together in Dar-es-Salaam to form Frelimo (the Mozambique Liberation Front), which launched its armed struggle in northern Mozambique on September 25, 1964. Most of the early battles took place in the north of the country, and while Frelimo succeeded in establishing a few “liberated” areas, the Portuguese ruthlessly retaliated against the local Makua people, making Frelimo and its mainly southern leaders somewhat unpopular there. Frelimo’s first president, Eduardo Mondlane, who had studied in the United States, was killed by a mail bomb in 1969. The charismatic and more radical Samora Machel succeeded him. Though Frelimo achieved some military gains in the north, the Portuguese maintained a military advantage throughout.   

A small group of Portuguese, known as prazeiros, lived among Mozambicans for generations. Frelimo was a racially inclusive independence movement, and some prazeiros later played a prominent role in the independence struggle. James Ciment, Angola and Mozambique: Postcolonial Wars in Southern Africa 33 (1997). William Finnegan, A Complicated War: The Harrowing of Mozambique 29 (1992).

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The war remained at a stalemate until April 1974, when a group of military officers overthrew Caetano in a near-bloodless coup that brought democracy to Portugal. The new government in Lisbon began negotiations with Frelimo in June. In September, Lisbon agreed to hand over all power to Frelimo in July 1975 but without accounting for any sort of transition: the negotiations covered neither elections, nor the status of Portuguese skilled workers and their property in Mozambique, nor any plan for future economic relations between the countries. Although whites were welcomed into the fold if they supported Frelimo, most fled, fearful and bitter at the prospect of African rule. By independence, 180,000 of the 200,000 Portuguese in Mozambique had left for Portugal and South Africa. In the exodus, Mozambique lost nearly all of its administrators and skilled technicians, including 7,000 skilled workers from the port and railway sector. On the eve of independence, after a violent ten-year struggle, the odds were against Mozambique. The country was close to bankrupt, and illiteracy rates were over 90 percent. According to William Finnegan, there were only six economists and two agronomists in the entire country—hardly enough to oversee a successful economic and agricultural transition. Yet, within a year, new developments inside and outside Mozambique made the odds far worse. III. Mozambican Civil War, 1976-1992 A. Causes and Parties 1. Frelimo Samora Machel took office as president of Mozambique on June 25, 1975. At the time, Machel and Frelimo enjoyed great popularity among millions of Mozambicans, who were glad to see the end of a brutal colonial administration and of forced labor, physical punishment, and the PIDE. Machel, a former nurse from a poor family, led a very idealistic form of revolutionary government, urging ministers to live modestly and adopt the attitude of shared sacrifice and living modestly himself, which helped to minimize bad feelings among rural peasants. In addition to Frelimo’s commitment to shared sacrifice, the party achieved major successes in the fields of education and health. Even before independence, Mondlane led efforts to curb illiteracy in liberated areas of the north. Machel continued the push and appointed a literacy directorate that worked tirelessly, lowering the illiteracy rate from 93 percent at independence to 72 percent in 1980. The nationalization of Mozambican health care also allowed the Frelimo government to recruit foreign health workers and expand preventive medicine, and a 1976 vaccina  

Ciment, supra note 3, at 55. William Minter, Apartheid’s Contras: An Inquiry into the Roots of War in Angola and Mozambique 21 (1994). Nazneen Kanji, War and Children in Mozambique: Is International Aid Strengthening or Eroding Community-Based Policies? 25 Community Dev. J. 102, 105 (1990).

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tion drive reached 95 percent of Mozambican children, garnering praise from the World Health Organization. However, most of Frelimo’s nationalization campaigns were less successful, and Machel’s sincere commitment to Marxist ideology led to some disastrous decision making that would sow dissatisfaction among rural Mozambicans. First among Frelimo’s disastrous policies was the agricultural plan to create state farms and “communal villages,” which at times involved the forced villagization of peasant farmers. Frelimo spent 90 percent of the agricultural budget on state farms, but they produced only about a fifth of the country’s output and often ran at large losses. Peasants brought in to work on the state farms were unenthusiastic about working far from home on group projects that did not directly reward their labor and used unfamiliar and inappropriate mechanical techniques. Farmers who continued to cultivate land outside of the communal villages faced low prices and difficulty selling their crops. The communal villages resulted in a severe decline in productivity in the first five years after independence, which hurt the industries that relied on agricultural products and caused a severe food shortage. The villagization efforts also caused resentment among rural peasants, many of whom had not felt particularly “Mozambican” upon independence and saw little difference between Frelimo and colonial heavyhanded policies.10 Another unpopular Frelimo policy was its ruthless opposition to traditional and religious leaders. The Portuguese colonial administrators had appointed traditional chiefs, known as régulos, to rule in rural areas, and although these leaders were often guilty of enforcing exploitative Portuguese land policies, many retained legitimacy in the eyes of their people. At independence, most Mozambicans held traditional religious beliefs about marriage, medicine, and death, and they followed traditional inheritance and kinship structures.11 Yet Frelimo called traditional authority backwards and “feudal,” believing that the traditional leaders impeded social and economic progress.12 Frelimo also sidelined the Catholic Church, and even renamed December 25 “Family Day.” In addition to alienating the régulos, curandeiros (traditional healers whom Frelimo authorities dismissed as “witch doctors”), and Catholic leaders, this antitraditional policy required the deployment of ineffective, centrally appointed administrators to rural areas. A third program that invoked ire against Frelimo was Interior Minister Armando Guebuza’s social engineering scheme known as “Operation Production.” Its purpose was to round up “undesirables and parasites”—people who appeared to be unemployed or lazy—and resettle them to parts of the country more in need of labor. Though the program was meant to be voluntary, there were reports of unlucky residents of Maputo who were sent against their will without a chance even to bid  

Ciment, supra note 3, at 91 n.13. Glenda Morgan, Violence in Mozambique: Towards an Understanding of Renamo, 28 J. Mod. Afr. Stud. 603, 611 (1990). 10 See, e.g., Christian Geffray, A Causa das Armas (1991). 11 Finnegan, supra note 4, at 116. 12 Ciment, supra note 3, at 66.

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farewell to family.13 In addition, suspected dissidents and opposition leaders were sent away to “reeducation camps” in the north, where there were reports of torture and ill treatment.14 Frelimo made an effort to turn around some of these more destructive programs—following its Fourth Party Congress in 1983, Frelimo decentralized many state farms and offered incentives to small- and medium-scale farmers to produce.15 In addition, Frelimo lessened its hostility toward Catholics after a 1983 visit from the Pope.16 But Frelimo mistakes had already irked a large segment of the population in the north and central regions of the country, creating internal fuel for the externally created destabilization movement that came to be known as Renamo (Mozambique National Resistance).17 2. Renamo None of Frelimo’s mistakes would have led to the massively destructive sixteenyear civil war without a sustained outside intervention, which began in 1976 with Rhodesia’s creation of Renamo. The Mozambican government angered Rhodesia by enforcing UN sanctions, a decision that deprived Mozambique of the lucrative port and railway proceeds it had previously earned as Rhodesia’s connection to the outside world. More importantly, Machel allowed Robert Mugabe’s exiled Zimbabwe African National Union (ZANU) to operate, train, and conduct attacks against Rhodesia from within Mozambique. The Rhodesian Central Intelligence Organization recruited Mozambicans who had collaborated with the Portuguese to form Renamo, with the goal of spying on the ZANU forces within Mozambique and punishing Mozambique for aiding the Zimbabwe rebels.18 Other early Renamo recruits were former Frelimo members who were unhappy with the government or dissidents who escaped reeducation camps. André Matsangaíssa, a former Frelimo soldier who had been sent to a reeducation camp for stealing a Mercedes Benz, led Renamo inside Mozambique until 1979, when he was killed in Renamo’s first major raid on the town of Gorongosa in the central province of Sofala. His deputy, Afonso Dhlakama, replaced him and has served as Renamo’s leader ever since. By late 1979, Renamo’s attacks on Mozambique were still limited to the central provinces near the Rhodesian border, and South Africa was only involved indirectly, providing Rhodesia with military hardware and training and putting economic pres13

M. Anne Pitcher, Transforming Mozambique: The Politics of Privatization, 1975-2000, at 121 (2002). 14 Martin Rupiya, Historical Context: War and Peace in Mozambique (1998), http://www. c-r.org/our-work/accord/mozambique/historical-context.php. 15 Pitcher, supra note 13, at 109. 16 Ciment, supra note 3, at 187. 17 Renamo was originally known by its English acronym MNR but switched in the early 1980s to the Portuguese acronym Renamo to emphasize its Mozambican identity. Minter, supra note 6, at 41-42. 18 Morgan, supra note 9, at 605.

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sure on Mozambique.19 When the war in Zimbabwe ended, many in Mozambique hoped that Renamo would not be able to continue without its Rhodesian sponsors. But the remnants of Renamo relocated to Pretoria as new South African Prime Minister P.W. Botha formulated his “total strategy.” To justify apartheid rule in South Africa, Botha attempted to show the world (and in particular, Western investors) that black Africans could not be trusted to govern. To achieve this, he strengthened and expanded South Africa’s special forces, covert operations, and support for proxy armies like Renamo in Mozambique, as well as in Angola, Zimbabwe, and Lesotho.20 Indeed, South African mentorship was crucial for Renamo, providing sophisticated training and weapons, economic support, and fronts for attacking Mozambique from the south. Throughout the early years, Renamo had no official policy beyond a vague opposition to communism. In 1981, Renamo published a “Manifesto and Program” demanding free-market policies and social services, but this did not change its overall strategy, which had always been to terrify and destabilize but never to govern or engage in Mozambican politics. The group’s negative and oppositional focus would prove a constant source of difficulty at the Rome Negotiations.21 Renamo also claimed to support religious freedom, destroying entire villages but leaving churches and mosques untouched. However, most scholars conclude that throughout the war, Renamo had no real ideology.22 In addition, Renamo claimed not to have any ethnic affiliation, but most of its leaders came from the Ndau, a subgroup of the Shona tribe who were largely spared from Renamo terror.23 B. Cold War Effects Mozambique was not a Cold War battleground like Angola. Though, ideologically, Mozambique’s Marxist-Leninist policies naturally aligned the country with the Soviet Union, neither the Soviets nor the West considered Mozambique to be strategically important. Still, Mozambique’s patrons throughout the 1970s were China and the Soviet Union, and early relations with the United States were far from warm. The Carter administration recognized the Frelimo government only after a six-month delay. Soon after Mozambique signed a Friendship Treaty with the Soviet Union, Carter ended direct economic assistance to Mozambique, citing human rights abuses by the government.24 The relations reached a low point after a 1981 South African military raid into Mozambique killed fourteen people. Mozambique 19 20 21 22

Minter, supra note 6, at 33. Finnegan, supra note 4, at 32-33; Minter, supra note 6, at 34-35. Morgan, supra note 9, at 606-07. See Ciment, supra note 3, at 184; Finnegan, supra note 4, at 78; Malyn Newitt, A History of Mozambique 565 (1995); Minter, supra note 6, at 134. Morgan is slightly more generous, suggesting that the absence of any Renamo policy statements after the 1981 manifesto only served to make the organization “an even greater mystery to all concerned.” Morgan, supra note 9, at 607. 23 Minter, supra note 6, at 188. 24 Finnegan, supra note 4, at 180.

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accused the CIA of providing intelligence related to the attack and expelled six American diplomats. The Reagan administration in turn refused to send a new American ambassador to Mozambique.25 Even during this tense period, the United States never directly supported Renamo, as it did insurgent movements in Nicaragua, Cambodia, and Angola, making Mozambique a Cold War exception. Beginning in 1982, relations warmed, and, in 1984, Mozambique voiced its support for Reagan’s reelection. Throughout the 1980s, conservatives in the U.S. government attempted to convince President Reagan to support Renamo,26 but State Department opposition kept Reagan on the side of mild support for Frelimo. The Cold War played a role in Mozambique’s war in the sense that it deprived the fledgling government of Western support during the crucial years when poor economic choices and alienating policies allowed support for Renamo to take root. C. War Operations 1. Renamo Tactics and Goals Throughout the war, Renamo operated as an insurgency, almost never engaging in major land battles.27 Renamo tactics were the most cruel and inhumane imaginable. Its goal was to kill and destroy at random in order to instill a maximum amount of fear and “make life unbearable for the living.”28 To achieve this aim, Renamo used murder, rape, mutilation, child soldiers, looting, arson, and sabotage. Though Renamo leaders joined voluntarily, the vast majority of the 15,000 to 20,000 soldiers that filled Renamo’s ranks by the mid-1980s were kidnapped and forcibly conscripted.29 Some of Renamo’s most atrocious tactics involved their recruitment and treatment of child soldiers, whom they generally kidnapped after pillaging a village (in addition to causing terror, looting allowed Renamo to supplement food supplies and resources). In the attacks, they made boys kill their parents, watch rapes, and even hold down mothers and sisters while soldiers raped them. They saw other children killed for faltering, and they were beaten and starved as initiation.30 Renamo also kidnapped girls, giving them to boy soldiers as a reward for atrocities. In total, available data suggest that 45 percent of the approximately one million war casualties 25 Id. 26 Americans conservatives who actively supported Renamo included Senator Malcolm Wallop of Wyoming and Representative Dan Burton of Indiana, who introduced a bill to give $5 million in military aid to Renamo; CIA director William Casey; White House Communications Director Patrick Buchanan; and Senator Jesse Helms, who held up the confirmation of Melissa Wells as ambassador to Mozambique in an attempt to force the Reagan administration to develop contacts with Renamo. Id. at 181-82. 27 Ciment, supra note 3, at 192. 28 Id. at 193. 29 Newitt, supra note 22, at 564. 30 Carol B. Thompson, Beyond Civil Society: Child Soldiers as Citizens in Mozambique, 26 Rev. Afr. Pol. Econ. 191, 193 (1999).

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were children under the age of fifteen. Hundreds of thousands more were separated from their families or orphaned.31 Along with terror, Renamo’s central tactic was to destroy anything it associated with the government: roads, bridges, railroads, schools, health clinics, and machinery. As discussed above, education and health were two areas in which the new Frelimo government had achieved significant success and popularity, so Renamo attacked schools and clinics to undermine Frelimo support. By 1988, Renamo had destroyed 45 percent of Mozambique’s primary schools and 46 percent of Mozambique’s health posts.32 Renamo was also massively successful in its attacks on the Mozambican transport network. Mozambique’s railroads, giving landlocked Malawi, Zambia, and Zimbabwe access to the sea, were a very important source of foreign exchange for the government, particularly after the end of UN trade sanctions against Rhodesia with Zimbabwean independence in 1980. Railroad losses from Renamo attacks from 1982 to 1988 cost an estimated $898 million—roughly six times Mozambique’s annual export earnings in the late 1980s.33 Renamo also interfered with road traffic by bombing bridges, making north-south travel difficult, and attacking vehicles. Ambush targets included relief supplies and trade goods, as well as passenger buses and cars, making most Mozambicans fearful to travel by road.34 The goal was to prove to the Mozambican people that their government could not protect them. Dhlakama often claimed that he intended to win the war militarily, but Renamo was never close to doing so and lacked any air defense capability that would have been necessary to take and hold major cities. Paulo Oliveira, a Renamo defector, acknowledged that Renamo’s South African backers had no intention of giving Renamo a military victory; a South African colonel told him in 1983 that the goal was merely to “put Machel on his knees.”35 2. Frelimo’s Response: Too Little, Too Late As discussed above, by the mid-1980s, Renamo had taken a huge toll on the Mozambican economy and the way of life of Mozambicans. However, the government refused to acknowledge the severity of the threat. At independence, the government handicapped its own ability to confront Renamo by demobilizing sectors of the Mozambican Armed Forces (FAM), and downsizing its capacity to battle non31 32 33 34 35

Miguel A. Máusse, The Social Reintegration of the Child Involved in Armed Conflict in Mozambique, in Child Soldiers in Southern Africa 1, 10-11 (Elizabeth Bennett ed., 1999). Minter, supra note 6, at 193. Id. at 192. Id. Finnegan, supra note 4, at 79. It is important to note that Renamo was not the sole perpetrator of human rights abuses. A 1992 Human Rights Watch (HRW) report described how government troops both forcibly moved hundreds of thousands of civilians into their areas of control and used these civilians, including children, as recruits and shields. Nevertheless, HRW noted that Renamo perpetrated the vast majority of the atrocities. Ciment, supra note 3, at 192-93.

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conventional forces. Frelimo leaders believed that the only military threat the government would face would come from the South African Defense Forces (SADF), and they refused to believe that they could lose the support of Mozambican peasants.36 As the depth of the Renamo threat increased in the early 1980s, the government failed to acknowledge that it was losing popular support to Renamo because of its alienating policies like Operation Production and, at the same time, failed to address the concern that it could not protect Mozambicans from Renamo terror.37 By the time the FAM adjusted to the Renamo threat, it lacked resources to recruit and retrain soldiers in sufficient numbers. In 1983-84, the government recalled former guerilla commanders who had led the insurgency against the Portuguese during the independence struggle, but they were not effective in repelling Renamo and were retired in 1988.38 International Monetary Fund (IMF)-sponsored economic restructuring forced the government to cut military spending, reducing government troops from 40,000 to fewer than 30,000.39 In addition, the destruction of the Mozambican transport network disrupted military logistics,40 and the sagging economy, aggravated by devastating drought, made it difficult for the government to provide rations, pay, and uniforms.41 The FAM received some assistance from Tanzanian and Zimbabwean troops but not enough for the government to achieve any long-term military advantage over Renamo. As many as 20,000 Zimbabwean troops were deployed in Mozambique to protect trade corridors and support a friendly government. The Zimbabwean military was more impressive than the FAM and helped Mozambique achieve certain military victories. Nevertheless, the Zimbabwe-assisted victories were often shortlived, such as the joint Zimbabwean-Mozambican victory at Renamo’s Gorongosa headquarters in August 1985. After securing the base, the Zimbabweans withdrew, and Renamo retook the area only months later. The Zimbabweans returned to retake the base, and this second time they remained, not trusting the FAM to defend Gorongosa.42 Throughout most of the conflict, Frelimo leaders refused to describe Renamo as an opposition force, using only the term “armed bandits,”43 attempting to minimize the importance of the threat Renamo posed. By its Fourth Party Congress in 1983, when it belatedly attempted to quell Renamo influence by dropping unpopular government policies, Frelimo acknowledged that Renamo’s destabilization was the

36 37 38 39 40 41 42 43

Id. at 147. Id. at 80. Finnegan, supra note 4, at 56. Id. at 269 n.1. Id. at 57. Ciment, supra note 3, at 147. Finnegan, supra note 4, at 57-58. Andrea Bartoli, Learning from the Mozambican Peace Process, in Paving the Way: Contributions of Interactive Conflict Resolution to Peacemaking 79, 91 (Ronald J. Fisher ed., 2005).

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main problem facing the country.44 Historian Joseph Hanlon argues that if the government had reached this realization in 1981 instead of 1983, it might have been able to slow or even stop Renamo’s spread; in any case, by 1983, political change was difficult to implement, and the government forces were in no position to stop Renamo.45 Even as Frelimo leaders recognized the challenge Renamo posed, they continued to dismiss Dhlakama as a South African puppet with no power of his own.46 When Machel first considered negotiations to end the war at the 1984 Nkomati Accord, he turned to Pretoria only, excluding Renamo.47 Joaquim Chissano, who took over as president after Machel died in a 1986 plane crash, continued the public dismissal of Renamo; however, privately, he was more realistic in assessing Renamo. As discussed below, this slight change in Frelimo’s attitude toward Renamo would play a role in allowing negotiations to go forward. IV. Negotiating an End to War, 1988-1992 A. Failed Negotiations Prior to the 1990-92 negotiations in Rome that yielded the successful GPA, several negotiation attempts failed to bring an end to the war in Mozambique. A brief discussion of these failed attempts will allow for comparisons with the Rome Accords to help illuminate what was different about Rome. 1. Nkomati Accord U.S.-Mozambican relations improved significantly after a 1982 meeting between then Mozambican Foreign Minister Joaquim Chissano and U.S. Secretary of State George Shultz. Washington openly criticized South Africa for supporting Renamo, and Frelimo began to see the Reagan administration’s doctrine of “constructive engagement” with apartheid South Africa as an opportunity for the Americans to convince Pretoria to leave Mozambique alone. With U.S. support, Mozambican and South African negotiators met in December 1982 and May 1983. In 1984, the two nations signed the Nkomati Accord, which established a Joint Security Commission and provided that each would end support within its territory for armed action against the other.48 By all accounts, Mozambique stuck to the agreement, ending its support of the African National Congress (ANC) and removing all ANC operations from the country except a small diplomatic office in Maputo.49 At the time, the fact that South Africa had agreed to end its support for Renamo was seen as a vic44 Ibrahim Msabaha, Negotiating an End to Mozambique’s Murderous Rebellion, in Elusive Peace: Negotiating an End to Civil Wars 204, 210 (I. William Zartman ed., 1995). 45 Joseph Hanlon, Mozambique: Who Calls the Shots? 26 (1991). 46 Finnegan, supra note 4, at 79. 47 Ciment, supra note 3, at 82. 48 Msabaha, supra note 44, at 211. 49 Minter, supra note 6, at 45.

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tory of U.S. pressure and moderate forces within the Botha government. However, South Africa’s covert support for Renamo continued as strongly as ever. Just before the implementation of the Nkomati Accord in March 1984, South Africa provided Renamo with supplies to last for six months.50 Following the Nkomati Accord, South Africa also transferred Renamo’s largest external bases to Malawi, a country that had absorbed many of the Portuguese secret police after Mozambican independence and had already served as a staging ground for Renamo attacks against northern Mozambique.51 2. Pretoria Declaration Renamo protested its exclusion from the Nkomati talks, and intensification of the fighting throughout the year led to a second round of talks in October 1984 in Pretoria, this time including Renamo. After three days of the first set of serious talks with the two sides, Botha announced the Pretoria Declaration (sometimes called Nkomati II) setting out four principles: (1) Renamo recognition of the legitimacy of the Frelimo government, (2) an eventual cease-fire, (3) South African involvement in reaching a settlement, and (4) the creation of a joint commission to implement the settlement.52 During an additional four days of negotiations, it seemed that the two sides might reach agreement, but Renamo abruptly broke off talks, reportedly due to pressure from Portuguese businessmen and elements of the South African military.53 The following year, clear evidence of the uninterrupted relationship between the SADF and Renamo emerged in the 1985 raid of Renamo’s Gorongosa headquarters.54 Frustrated with South African deceit, Machel withdrew from the Joint Security Commission established in the Nkomati Accord and strengthened his efforts to induce Western powers to stop South Africa from continuing to violate the terms of the Nkomati Accord, culminating in a 1985 visit to Washington. In addition, in one of his last moves before his untimely death in October 1986, Machel forced Malawi into an agreement to expel Renamo fighters from Malawi.55 This expulsion backfired militarily, fueling Renamo’s most successful offensive drive to date, which wrought havoc on central Mozambique and sent hundreds of thousands of refugees into Malawi.56 The main reason that the Nkomati Accord and Pretoria Declaration failed to stop the war in Mozambique was that South Africa had no intention of ending its 50 51 52 53

Ciment, supra note 3, at 82. Finnegan, supra note 4, at 141-42. Msabaha, supra note 44, at 211. See Cameron Hume, Ending Mozambique’s War: The Role of Mediation and Good Offices 14 (1994); Msabaha, supra note 44, at 212. 54 In the raid, Frelimo forces discovered the diaries of Renamo National Council member Francisco Vaz. The diaries included several entries documenting meetings between Dhlakama and SADF officials, where the SADF representative offered military advice and promised continued support for Renamo’s military efforts against Frelimo. Ciment, supra note 3, at 82-83. 55 Finnegan, supra note 4, at 142. 56 Id. at 142-43.

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military support for Renamo. Botha achieved a political victory by securing an end to Mozambique’s support of the ANC, and Frelimo hoped that by accommodating Pretoria’s demands, it could prompt Pretoria to use its influence to end Renamo’s destabilization efforts. However, Renamo was not ready to reach a cease-fire, and Pretoria was not willing to put any pressure on Renamo. In addition, the Pretoria talks of 1984 foreshadowed the difficulties that the Rome negotiators would face six years later with Renamo’s lack of a clear set of goals. Disagreement and confusion in the Renamo ranks allowed pressure from Portuguese and South African elements to cut off talks before they reached a critical depth. B. The Road to Rome By 1989, many factors made the situation more desperate for both Frelimo and Renamo. The government, after joining the World Bank and IMF in 1984, adopted the reforms required to receive loans in 1987. The government devalued the Mozambican currency, reduced spending on health and education, and cut its agricultural subsidy programs, which had provided rural Mozambicans increased access to consumer goods and actually succeeded in increasing agricultural production.57 These programs, in combination with a renewed drought in the late 1980s, devastated the rural poor and left the government with its hands tied by its obligations to the IMF and other international donors.58 In 1990, Mozambique became the poorest country in the world, with a per capita income half that of Somalia at the time; it was also the country most reliant on foreign aid in the world.59 In addition, the changes taking place in Eastern Europe and the Soviet Union had an impact on Mozambique. Mozambique lost aid from the Warsaw Pact countries, and it lost advisors and cheap oil from the Soviet Union. The 16,000 Mozambicans who had been working in factories and mines in East Germany faced pressure to return home, even as unified Germany continued East Germany’s aid programs to Mozambique.60 In May 1989, a student strike at Eduardo Mondlane University shocked the government, as it was the first major strike in independent Mozambique. The strike set off a wave of strikes in 1990 among journalists, steel workers, rail workers, hospital employees, bus drivers, mineworkers, and others.61 For Renamo, the 1988 publication of a report by Robert Gersony of the U.S. State Department undercut Renamo’s lingering support from conservatives in the West. The report detailed Renamo’s grotesque strategy, particularly in the areas he described as “control areas” and “destruction areas,” where Renamo soldiers engaged in “axing, knifing, bayoneting, burning to death, forced drowning and asphyxiation,

57 Ciment, supra note 3, at 83; Hume, supra note 53, at 20. 58 For a scathing critique of the effect of aid programs on the Mozambican economy, see Hanlon, supra note 45. 59 Ciment, supra note 3, at 83. 60 Finnegan, supra note 4, at 130. 61 Id.

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and other forms of murder where no meaningful resistance or defense is present.”62 In addition to losing the support of American conservatives, who could no longer publicly advocate for Renamo after the Gersony report was made public, Renamo saw more and more Western governments siding with Frelimo: Great Britain was now providing radios and training, the United States was Mozambique’s largest donor of emergency aid, and Mozambique was the number one recipient of Italian foreign aid.63 Even South African support for Renamo was showing signs of weakening. Frelimo, Portugal, and South Africa concluded successful negotiations in April 1988 on the repair of electrical lines to bring electricity from Mozambique’s Cahora Bassa Dam to South Africa. Botha and Chissano engaged in several more talks on technical issues and Mozambican migrant workers in South Africa between 1988 and 1989. Momentously, F.W. de Klerk took over as president of South Africa in September 1989, releasing Nelson Mandela from prison and ending the era of apartheid. De Klerk was serious about supporting peace for neighboring African states, and even Botha offered to host talks before he stepped down (Renamo rejected the offer).64 In addition to both sides’ increasing desperation, there were some encouraging signs that Frelimo was ready to negotiate. Former Foreign Minister Joaquim Chissano, who took over as president after Machel’s death, was seen as less of a hard-liner than his predecessor, and he took the opportunity to lift restrictions on religious freedom and improve relations with the Mozambican Catholic Church.65 A September 1988 visit from the Pope showed Mozambican Catholics that Chissano was serious about reconciling with them.66 President Chissano traveled to the United States to meet with President Reagan less than a year after taking office, and two months after his visit he announced an amnesty program for Renamo militants who turned themselves in beginning on January 1, 1988. Three thousand people took advantage of the program in 1988.67 Finally, the Frelimo Fifth Party Congress dropped all mention of Marxism-Leninism and class struggle,68 and Chissano offered topparty representation to members of the Ndau group, who had historically been well represented in Renamo.69 Renamo also showed new signs of openness; at its First Party Congress in June 1989, Renamo dropped most of its preconditions. Its previous preconditions, which 62 Carolyn Nordstrom, A Different Kind of War Story 98 (1997) (quoting Robert Gersony, Summary of Mozambican Refugee Accounts of Principally Conflict-Related Experience in Mozambique 32 (1988)). 63 Finnegan, supra note 4, at 35. 64 Msabaha, supra note 44, at 217. Even though official South African support of Renamo ended under de Klerk’s presidency, Africa Report argued that elements with the South African military, as well as nonmilitary right-wing groups in the West, continued supporting Renamo until as late as early 1992, enabling continued military efforts by Renamo throughout the peace negotiations. Ciment, supra note 3, at 89. 65 Hume, supra note 53, at 21; Msabaha, supra note 44, at 215. 66 Hume, supra note 53, at 21-22. 67 Id. at 21. 68 Finnegan, supra note 4, at 130. 69 Msabaha, supra note 44, at 216.

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included elections, a coalition government, and respect for the Church, became mere opening demands that would no longer keep talks from beginning.70 In addition to favorable circumstances, religious groups within Mozambique played a catalytic role in starting a peace process. Both the Mozambican Catholic Church and the Protestant church leaders represented on the Mozambican Christian Council (CCM) had agitated for peace from an early point in the war. The church leaders began making more public calls for peace negotiations with a 1987 pastoral letter entitled “The Peace that the People Want.” Although President Chissano publicly denounced these church leaders as “apostles of treason,” in 1988 he quietly authorized those same leaders to broach contacts with Renamo.71 Jaime Gonçalves, the first Mozambican to be named Archbishop of Beira, was a particularly good choice as an initial go-between. While studying in Rome in the 1970s, Gonçalves had befriended several members of the Community of Sant’Egidio, a lay association affiliated with the Catholic Church whose mission is to serve the poor, spread the Gospel, and establish ecumenical dialogue. Gonçalves’s stories of religious persecution in newly independent Mozambique made the community interested in working in Mozambique. In 1981, the community’s leader sought the help of a member of the Italian Communist Party, a Frelimo ally, to open a dialogue between Sant’Egidio and the Frelimo government to discuss lifting certain restrictions on religion.72 After establishing those initial contacts, Sant’Egidio met with Frelimo ministers to discuss raising support in Italy for humanitarian assistance for war-torn Mozambique and sent more than 10,000 tons of aid in two “ships of solidarity” that arrived in 1985 and 1988.73 Yet for all the ties Gonçalves and Sant’Egidio had established with the government, they both retained credibility in the eyes of the insurgents. Gonçalves had been arrested by the government multiple times and had spent six months in Frelimo prisons. He and Dhlakama came from the same area of Mozambique, and Renamo had often professed its respect for the Catholic faith. In 1982, Sant’Egidio representatives successfully negotiated with Renamo to secure the release of priests and nuns taken captive, establishing the community’s trustworthiness from the perspective of Renamo. With Chissano’s 1988 implicit approval of Church contacts with Renamo secured, a group of Mozambican church leaders traveled to Kenya, where President Daniel arap Moi and Permanent Secretary for Foreign Affairs Bethuel Kiplagat had demonstrated an interest in facilitating talks with Renamo. Moi invited Presidents Chissano and Mugabe to Nairobi in October, and in December he sent an envoy to meet Dhlakama in Gorongosa. Kiplagat busied himself securing passports and travel arrangements for Renamo representatives. After a series of separate visits to Nairobi by Mozambican church leaders and Renamo representatives, the church70 Id. at 217. 71 Finnegan, supra note 4, at 245. 72 Andrea Bartoli, Forgiveness and Reconciliation in the Mozambique Peace Process, in Forgiveness and Reconciliation: Religion, Public Policy, and Conflict Transformation 361, 369 (Raymond G. Helmick & Rodney L. Petersen eds., 2002). 73 Hume, supra note 53, at 18.

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men succeeded in meeting Renamo Foreign Relations Secretary Raul Domingos in February 1989.74 On July 21, 1989, Chissano formally requested that Presidents Mugabe and Moi become official mediators, and preparations for Nairobi talks began. Preempting an agenda, Chissano prepared a twelve-point document with steps for ending the war, circulated it to foreign embassies in Maputo,75 and asked the church leaders to present it to Renamo in their Nairobi meeting.76 The document expressed the government’s hard-line positions, suggesting that talks could not take place until Renamo stopped all acts of terrorism and refusing to recognize the conflict as a war between parties, calling it instead a destabilization operation.77 Yet, the document also expressed Frelimo’s openness to reintegrating former insurgents not only into Mozambican society, but into the political system once peace was achieved.78 Dhlakama responded with a sixteen-point paper calling for the withdrawal of foreign forces and the creation of a multiparty government and expressing Renamo’s commitment to a negotiated settlement.79 A second round of talks organized by President Moi two weeks later failed to make any progress,80 and the Frelimo government expressed its displeasure with the choice of venue, claiming that Kenya was training Renamo guerillas.81 Nevertheless, the papers that arose out of the indirect Nairobi talks contained commitments from both sides that could serve as the basis for future dialogue. As Cameron Hume, deputy chief of mission at the U.S. embassy to the Holy See, explained in his booklength account of the Rome Accords, Both wanted a peaceful solution, a democracy based on freedom of expression and association, the right of all citizens to full participation in society, recognition that the people are sovereign and have the right to choose their government, and a peace process based on a desire for national reconciliation and unity. Both accepted the possibility of change through the democratic process, and Renamo did not rule out accepting the legitimacy of the government, the constitution, and the laws in force.82

Though the Nairobi talks stalled, they succeeded in proving that the Mozambican clergymen, and particularly Gonçalves, had legitimacy in the eyes of both parties, and they convinced the Community of Sant’Egidio that its nongovernmental space 74 Id. at 26-27; Dínis S. Sengulane & Jaime Pedro Gonçalves, A Calling for Peace: Christian Leaders and the Quest for Reconciliation in Mozambique (1998), http://www.c-r.org/ our-work/accord/mozambique/calling-for-peace.php. 75 Msabaha, supra note 44, at 218. 76 Sengulane &Gonçalves, supra note 74. 77 Msabaha, supra note 44, at 218. 78 Hume, supra note 53, at 28. 79 Msabaha, supra note 44, at 218. 80 Sengulane & Gonçalves, supra note 74. 81 Ciment, supra note 3, at 89. 82 Hume, supra note 53, at 29.

200 Caroline A. Gross in Rome could serve as an acceptable location for talks. Even before an abortive round of talks in Blantyre, Malawi, in June 1990, which Renamo opposed on security grounds, both sides began making visits to Rome to lay the groundwork for the twenty-four-month peace process that would result in the GPA. C. Rome It is not within the scope of this chapter to provide a detailed discussion of each of the ten rounds of talks that took place between July 1990 and October 1992 in Rome.83 Instead, this chapter will summarize the ten rounds, analyzing the biggest challenges and reasons for the ultimate success of the talks, in order to enable a discussion of lessons learned that might be applicable to future war-stopping efforts. The first challenge the mediators faced was getting past procedural hurdles. Throughout the process—and particularly at the beginning, when trust between the parties was at its lowest ebb—the mediators had difficulty getting the parties to discuss substance rather than procedure. The two sides invoked procedural issues that would have no bearing on the ultimate settlement in order to improve their positions vis-à-vis one another. One example of this was the parties’ difficulties in selecting mediators. Four individuals were responsible for starting the talks in Rome at the Sant’Egidio headquarters: Andrea Riccardi and Don Matteo Zuppi of the Community of Sant’Egidio; Mario Raffaelli, an Italian member of parliament appointed by Italian Prime Minister Giulio Andreotti to assist with the talks; and Archbishop Gonçalves, who had used his Italian contacts to promote peace negotiations for many years. At the start of the meetings, these four individuals were termed “observers.” Immediately after the two sides delivered opening remarks, the question of the role of third parties to the talks led to an impasse. The government delegation, led by Secretary of the Interior Armando Guebuza and including Minister of Information Teodato Hunguana, Minister of Labor Aguiar Mazula, and Presidential Diplomatic Advisor Francisco Madeira, wanted bilateral talks with a small and decreasing role for third parties. The Renamo delegation, led by Renamo’s External Affairs Secretary Raul Domingos and joined by Vicente Ululu of the Department of Information, Agostinho Murrial of the Department of Political Affairs, and João Almirante of Dhlakama’s cabinet, wanted a strong mediator who would hold the two sides to their commitments. In Renamo’s eyes, the presence of a strong third-party mediator would raise the status of the talks and thus raise Renamo’s status to that of an equal negotiating partner with the government. Observers proposed that the governments of Kenya and Zimbabwe, which had both played roles in bringing the parties together, could serve as joint mediators. Renamo refused to accept any role for Zimbabwe, as Zimbabwean troops were fighting Renamo on the battlefield, but the government refused to accept Kenya without Zimbabwe having an equal role. The two sides could not agree on the subject throughout the first two rounds of talks, and while observers tried to sidestep the 83 For such detail, see Hume, supra note 53, and Tomás Vieira Mário, Negociações de Paz de Moçambique: Crónica dos Dias de Roma (Instituto Superior de Relações Internationais—Centro de Estudos Estratégicos Internacionais, 2004).

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issue, Domingos insisted that the subject be resolved before moving on. Finally, in a small informal meeting that took place after the second round ended in deadlock, the mediators convinced both sides to accept a compromise on the question of mediators: the four observers would become mediators, Sant’Egidio and the government of Italy would provide hospitality and logistics, Kenya could serve as an advisor to Renamo delegations, and the United Nations would guarantee implementation of the agreement once reached.84 Even after the question of mediators was resolved, the parties continued to focus on procedural issues. Only after five rounds of negotiations, spanning from July 1990 to June 1991, did the parties finally agree on an agenda for the negotiations. Once the parties agreed on the agenda, they were able to make progress on the items of the agenda one by one. But in the eleven months and five rounds that led to the adoption of the agenda, the parties made progress on only one substantive point: an agreement to limit Zimbabwean troops in Mozambique to a six-kilometer zone surrounding the Beira and Limpopo strategic corridors and the appointment of an eight-government Joint Verification Commission.85 The conflict holding up the creation of an agenda was that Renamo wanted a detailed agenda including a number of subitems that were the thorniest issues for the government, including the status of the national security services and an insistence that laws adopted by the national assembly were null and void. In repeating this position, Renamo was denying the legitimacy of the Frelimo government. Eventually, the mediators concluded that the issue of the legitimacy of Frelimo laws should be postponed, and the thorny subitems could be included but in more neutral language (“military issues”) and would be addressed after the subitems on which the two parties agreed. The order of the agenda was (1) law on political parties, (2) electoral system, (3) military issues, (4) cease-fire, (5) guarantees, and (6) establishment of a donors’ conference.86 The parties adopted the agenda on May 28, 1991, but they did not make any progress on the agenda items until they adopted a separate document, which the mediators initially titled “On Fundamental Principles” but which later became Protocol I, committing the government not to act contrary to the protocols, committing Renamo to respects the laws and institutions of the government upon the date of the cease-fire, and committing both sides to negotiate on the terms of the agenda. This document, adopted on October 18, 1991, more than one year after the start of the Rome talks and in the seventh round of talks, finally enabled the parties to recognize the legitimacy of one another and move on to the concrete items of the agenda. Within a month of signing Protocol I, the parties signed Protocol II on the Political Party Law on November 13, 1991. Protocol III on the Election Law followed on March 12, 1992. The second challenge the mediators faced involved the rapid unilateral reforms that Frelimo implemented. Though the steps toward openness that Frelimo under84 Hume, supra note 53, at 39. 85 Renamo nominated Kenya, Portugal, the United States, and Zambia, and the government nominated the Congo, France, the Soviet Union, and the United Kingdom. 86 Hume, supra note 53, at 63.

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took at its 1989 Fifth Party Congress were seen as signs that the government was ready to negotiate and cede to some of Renamo’s political demands, the extensive reforms that continued into 1990 caused major problems at the bargaining table. As discussed above, it took Renamo more than ten years to achieve a party congress that declared a coherent set of political demands. Yet while Renamo struggled to formulate political justification for its armed opposition, Frelimo preempted many of Renamo’s legitimate demands. On November 30, 1990, the Frelimo government adopted a new constitution with many democratic reforms, including multiparty democracy, freedoms of speech and assembly, procedures for carrying out elections, and due process of law.87 It was particularly frustrating for Renamo to see Frelimo preempt its long-sought legitimate political demands because the moves reinforced the bargaining asymmetry that had made Renamo self-conscious from the beginning of the negotiations. In response to Frelimo’s unilateral moves, Renamo raised objections with the constitution throughout the process. Though Renamo had objections to certain provisions of the constitution, Renamo’s real opposition was not to the content of the document, but rather to the fact that it played no role in drafting the constitution. Renamo’s insecurity over its lack of contribution to the constitution led Renamo to call off talks at several points during the later, more substantial stages of the talks. During the negotiations over the Political Party Law and the Election Law, the mediators were able to deal with the touchy question of the Mozambican constitution by proposing to delay the issue (U.S. observer Hume at one point convinced Domingos that delaying the constitutional question until after agreement on substantive issues would give Renamo more leverage over the government).88 When the issue again appeared to block the discussion of military matters, the mediators proposed addressing the constitutional question together with discussions of military matters and the cease-fire, buying themselves more time. Finally, at a summit involving Frelimo and Renamo leaders Chissano and Dhlakama (rather than their chief negotiators) and Zimbabwean President Mugabe, Chissano convinced Dhlakama that once a peace agreement was reached, he would submit the agreement for approval by two-thirds of the legislative assembly, making the agreement a constitutional amendment that would take precedence over all previous legislation.89 Finally satisfied that the Mozambican constitution would reflect Renamo’s input during the negotiations, Dhlakama dropped his opposition to the constitution. With that issue out of the way, the two parties signed the GPA two months later on October 4, 1992. The third challenge for the mediators was Renamo’s “schizophrenic bargaining behavior.”90 Throughout the negotiations process, the mediators were constantly reminded of the sophistication gap between the government representatives, skilled in the art of diplomacy through their fifteen years of experience conducting international relations, and the Renamo representatives, who were often less educated 87 88 89 90

Ciment, supra note 3, at 88. Hume, supra note 53, at 90. Id. at 113. Ciment, supra note 3, at 89.

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and less skilled at presenting their position diplomatically. Dhlakama himself was poorly educated and unworldly,91 and he was not able to keep in as close contact with his negotiating team in Rome as Chissano was. One reason for this was that the mediators and observers were never able to establish a secure communication line to Renamo headquarters at Casa Banana, Gorongosa. Another was that Dhlakama, especially in the early phases of the negotiations, was hesitant to leave Gorongosa, often trying to lure the mediators and U.S. officials to Gorongosa in order to raise his profile. Throughout the negotiations, a British entrepreneur named Tiny Rowland helped mitigate this problem by encouraging Renamo officials to use his jets, and the government of Kenya played a role in issuing passports to Renamo officials. The U.S. government observers and the mediators encouraged Dhlakama to meet them in other African capitals, and the United States, in particular, offered the carrot of face time with important U.S. officials (and even a visit to Washington) as a reward when Renamo took a positive step at the negotiating table. More fundamentally, Renamo was a party in flux throughout the stages of the negotiations, attempting to mold itself into a legitimate civilian political party after spending a decade and a half running a violent insurgency from the bush. As political scientist Carrie Manning explains, “Renamo’s defining feature during the war was that it was whatever Frelimo was not.”92 At its First Party Congress, and throughout the negotiations, Renamo needed to define itself more specifically and in a way that would be legitimate in the eyes of the international mediators and observers. When this process stalled, Renamo would lash out, denying a position it had already agreed to, and adding new and outlandish demands, such as UN control of major government ministries.93 Though this erratic behavior certainly caused delays and halted progress at the negotiations, it also provided external actors with the rare opportunity to bring an opposition party’s demands in line with acceptable international norms simply by offering to help the party articulate its demands. Renamo, aware that it lacked legal and diplomatic expertise, sought help from U.S. constitutional lawyer Bruce Fein and Professor Andre Thomashausen of the University of Witwatersrand, South Africa. The two experts helped Renamo prepare three political documents in the spring and summer of 1991: a draft constitution, a line-by-line critique of the new Mozambican constitution entitled “The Dhlakama Papers,” and a plan for the country’s transition period between the cease-fire and the elections.94 Though these papers represented positions that were not close to the positions expressed by the government negotiators or even the mediators, they articulated Renamo’s demands and crystallized in

91 Finnegan, supra note 4, at 79. For example, he was surprised to learn in meetings with U.S. officials that without a foreign investment code to regulate profit flows out of the Mozambique, the country would be at risk of becoming a virtual labor colony for South Africa. Id. at 248. 92 Carrie Manning, Constructing Opposition in Mozambique: Renamo as Political Party, 24 J. S. Afr. Stud. 161, 178 (1998). 93 Ciment, supra note 3, at 89. 94 Hume, supra note 53, at 59.

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the minds of the mediators the major remaining points of contention, which had been difficult to determine before Renamo had these documents. In addition, Renamo’s lack of sophistication created a larger space within which the mediators could work; at crucial moments in the negotiations, both Renamo and Frelimo were amenable to persuasion by mediators and observers. For example, during the discussions leading up to the adoption of the Political Party Law (Protocol II), Renamo presented a three-part draft that represented a major step backward. Guebuza recognized the draft as a delay tactic and decided there was no point in staying. It seemed that the talks were breaking down, and the parties could not be reconciled. But Hume stepped in, first convincing Domingos that it would be more productive to propose amendments to the mediators’ draft than to present a brand new text, and, second, convincing Guebuza that if he left Rome he would appear to be uncommitted to reaching an agreement. The result was that Guebuza stayed in Rome, and the mediators shuttled between Guebuza’s team and Dhlakama, who was visiting Rome at the time, and were able to put together a compromise text that the parties soon adopted in full.95 This example is representative of a large part of the mediators’ experience: for many of the sections of the GPA, the mediators were free to draft compromise texts as they thought best, with the two parties chipping in to amend the sections that they found unsuitable. In this sense, the mediators had significantly more freedom in drafting texts than is common when mediators represent formal governments.96 The fourth challenge for the mediators was both parties’ lack of a sense of urgency throughout the negotiations. Though the mediators benefited throughout the negotiations from the added flexibility they gained from their low profile and nondiplomatic status, they were also frustrated at several points by their lack of leverage over the parties. With the discussion of military matters next on the agenda, the mediators felt that a larger role for interested governments would help put pressure on the parties. The parties also recognized that outside technical advice would be useful, so at the start of the tenth round of negotiations, the parties agreed to invite France, Portugal, the United Kingdom, the United States, and the United Nations to become official observers. Military experts from the observer states and Italy quickly busied themselves drafting the protocol on military issues. The famine, affecting most of southern Africa in 1991, gave the international community another reason to worry about excessive delays. U.S. Assistant Secretary of State Herman Cohen, flying to Maputo and Lilongwe, Malawi, met with Chissano and Dhlakama, respectively, and urged them to agree to expedite delivery of humanitarian relief to all areas of Mozambique to avoid mass starvation. One month after Cohen’s visits, Italian Ambassador to Mozambique Manfredo Incisa di Camerana traveled to Gorongosa to meet with Dhlakama and attempt to convince him to speed up the negotiations. These efforts helped accelerate an agreement on humanitarian assistance, but they could not speed up plans for the summit between Chissano and Dhlakama or agreement on military matters. The parties’  lack of urgency remained a 95 Id. at 78-79. 96 Id. at 95.

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problem the mediators were never quite able to resolve.97 Still, last-minute aid from Mugabe, President Ketumile Masire of Botswana, Rowland, U.S. Deputy Assistant Secretary of State Jeffrey Davidow, Cohen, and the indefatigable mediators allowed the parties to reach agreement on all outstanding issues just hours before the signing ceremony set for October 4, 1992. V. From War-Stopping to Peacemaking, 1992 Onward A. ONUMOZ The GPA called for an immediate cease-fire, UN-led demilitarization of combat zones, liberation of prisoners, creation of a 30,000-member army with equal representation by Renamo and government soldiers, demobilization of the other 70,000-odd soldiers, parliamentary and presidential elections within a year, and the convening of a donors’ conference. The demobilization involved not only the collection of weapons and payment of back pay, but also included a special assistance program that provided for eighteen months of financial assistance, employment opportunities, kits including agricultural tools and seeds, and food rations at assembly areas.98 On October 13, 1992, the Security Council welcomed the agreement and approved the dispatch of military observers and the Italian diplomat Aldo Ajello as the special representative of the Secretary-General. Three months later, Security Council Resolution 797 established the UN Operation in Mozambique (ONUMOZ). The operation would remain in Mozambique for two years, committing 6,200 peacekeeping troops and several hundreds of millions of dollars. ONUMOZ faced a daunting challenge: some three million internally displaced persons, 1.5 million refugees in neighboring countries, and a severe lack of information regarding the location of minefields laid by both sides.99 One of the factors leading to the success of ONUMOZ was the failure of the UN’s mission in Angola. Angolan elections had taken place just one week before the signing of Mozambique’s GPA, but the losing party refused to accept the results, and the country slipped into a brutal second round of war during the exact time frame that ONUMOZ operated. The limited mandate and commitment of funds and personnel in Angola led to increased UN generosity with the Mozambican mission and a more robust mandate. Unlike the mission in Angola, which could only monitor and verify, ONUMOZ had four functions: (1) political—to facilitate the implementation of the GPA; (2) military—to monitor the cease-fire, forces, and demobilization and to provide security for infrastructure and all UN activities in Mozambique; (3) electoral—to assist in and monitor the election and electoral process; and (4) humanitarian—to coordinate all humanitarian missions in the country.100 The mis97 Id. at 128. 98 James Dobbins et al., The UN’s Role in Nation-building: From the Congo to Iraq 102 (Rand Corporation 2005). 99 Hume, supra note 53, at 131. 100 Richard Synge, Mozambique: UN Peacekeeping in Action, 1992-1994, at 35 (1997).

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sion had a difficult time starting its operations until March 1993, when the UN General Assembly approved an initial ONUMOZ budget of $140 million. The five UN battalions arrived between April and July, allowing the Zimbabwean troops to depart April 15 and the Malawian troops to depart June 9. During the first year after the cease-fire, ONUMOZ made progress in resettling refugees and internally displaced people, but due to UN delays in funding and sending troops, the demobilization process had barely begun. Renamo slowed the work of the peace commissions by engaging in delay tactics and demanding time and help to train its members. The mission and the parties, showing a surprising amount of flexibility, agreed to delay the elections by a year, and the donor governments wisely did not object. Finally, in the spring of 1994, the pace of demobilization picked up, and direct talks between Chissano and Dhlakama helped break the political logjam. The elections were held October 28-29, 1994, and voter turnout was near 90 percent. In the parliamentary election, Frelimo received 44 percent and a slight majority of seats in the new 250-seat parliament. In the presidential election, Chissano won with 53 percent of the vote. Dhlakama received 34 percent. Both parties filed claims of fraud against one another, but ultimately both parties respected the results. The high voter turnout and relative calm after the elections suggested that the Mozambican people, weary after thirty years of conflict, were adamantly committed to keeping the peace that had been so strenuously established. B. Postelection Period The period following the first multiparty elections remained tense. During the first meeting of the national assembly in Maputo, Renamo delegates walked out over losing a vote on the choice of speaker of the house, hoping to get the Frelimo majority to grant them a power-sharing agreement. However, the Frelimo assembly members refused, and the Renamo members returned in January.101 There were occasional flashes of violence, particularly in the central provinces, the situs of Renamo’s greatest support. Yet, these occasional outbursts never caught hold, and the country has remained at peace. In accord with its constitution, Mozambique held elections in 1999, and Chissano was reelected. Though he was constitutionally permitted to run one more time, he set an important precedent by choosing not to run for a third term in 2004. Instead, Guebuza became the Frelimo candidate. C. Factors that Helped Maintain the Peace The end of apartheid and consequent loss of external support for the war, the inability of either side to win the war militarily, and the skillful and patient mediation process detailed above all helped Mozambique end a war that killed one million Mozambicans and created 200,000 orphans and more than 10,000 amputees. But Mozambique’s success went beyond ending the war—Mozambique is a country at peace. There is only one Mozambican Army, and it is made up of soldiers from both 101 Ciment, supra note 3, at 224.

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sides. Vast numbers of former soldiers long ago returned home to their communities, which accepted and reconciled with them surprisingly quickly. Frelimo and Renamo continue to exchange sharply different perspectives on the needs of the people and the insufficiencies of government policies, but their confrontations occur within parliament, not on the battlefield. No longer fearful, former refugees and internally displaced persons have returned to their homes and now concentrate on feeding their families. Tourists are flocking to the beaches and game parks in record numbers, and foreign and local investment have been on a near continuous rise since the first democratic elections came and went without violence. Outsiders wonder how a country that suffered from a long war so recently could quickly transform and appear so far removed from its years of war. Below are some of the most important factors that helped Mozambique create and maintain the peace. 1. Lack of Precious Resources Mozambique was the poorest country in the world in 1990, and as of now it possesses no known precious resources—no diamonds, no oil, no gold, no coltan. Without any such resources, the parties to the conflict had less to lose by accepting a democratic system than do conflict parties in more resource-rich countries. 2. Demobilization First, Elections Second The two-year transition period was lengthy, but delaying the country’s first multiparty elections until after the demobilization process turned out to be an excellent decision. By August 1994, 64,130 government and 22,637 Renamo troops had been demobilized.102 At the time of the election, there were no longer recognizable, distinct Frelimo and Renamo armies, so it would have been difficult for Renamo to return to war after the elections. This contrasts starkly with the 1992 elections in Angola, which proceeded before any demobilization attempts, allowing the losing Unita faction to resume the war without difficulty. However, disarmament did not proceed nearly as smoothly as demobilization. Although some arms were buried, very few were destroyed, and most were stored in poorly secured depots. Some of these arms have, inevitably, made their way onto the black market, and the lack of appropriate storage security has led to tragic explosions of arms depots, including a particularly tragic mishap outside Maputo that killed 103 people and injured more than five hundred in March 2007.103 The United Nations should have put greater effort into destroying these weapons while it had the chance, as there are far more weapons in storage than would ever be necessary to arm the Mozambique Defense Forces.104

102 Dobbins, supra note 98, at 104. 103 Sharon LaFraniere, Fears Linger in Mozambique over Unexploded Weapons, N.Y.Times, May 29, 2007, at A4. 104 Dobbins, supra note 98, at 104.

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In March 1992, in the midst of the Rome negotiations, Dhlakama told Rafaelli, the Italian government member who was one of the four mediators, that he and his party would need money to make the transition to a civilian party. And indeed, a large part of the success in bringing Renamo leaders out of the bush and into civilian life was the multimillion-dollar trust fund that international donors established essentially to bribe Renamo leaders into keeping quiet and participating in the national elections. In addition to generous payouts (including a stipend of $300,000 per month for Dhlakama) and accommodations for Renamo leaders in Maputo, the trust fund covered the cost of office space, furniture, equipment, and other material goods that Renamo saw as necessary to become an official political party.105 Although strict anticorruption advocates may consider this official UN- and donor-sponsored bribery to be unacceptable, it was actually a rather cheap way to ensure the peace, compared with the costs of a return to war before or immediately following the 1994 elections. As an Economist reporter noted, relaxing in his seaside villa, Dhlakama “did not look like a man eager to go back to the bush.”106 4. Remarkable Economic Development and Optimism Since the implementation of the cease-fire, Mozambique has been an economic success story. According to U.S. State Department figures, between 1994 and 2006, Mozambique’s average annual gross domestic product growth was 8 percent, which is particularly remarkable given that devastating floods in 2000 slowed growth for that year to 2.1 percent.107 A recent World Bank study praised Mozambique for its “pro-poor” growth: “Growth was pro-poor because of the changes in the structure of production. Agriculture became more productive (reducing rural poverty) and this increase in domestic demand allowed labor to move from low productivity agriculture to higher productivity sectors, including the urban informal sector.”108 This growth has helped to create a sense of optimism and hope among Mozambicans. 5. Lack of an Ethnic Element to the Conflict Though certain ethnic groups, such as the Ndau, were better represented among Renamo circles and less represented in the Frelimo elite, the Mozambican conflict never had a primary ethnic element to it. In addition to an overall lack of underlying interethnic conflict, early Frelimo programs successfully brought groups together 105 Pamela L. Reed, The Politics of Reconciliation: The United Nations Operation in Mozambique, in UN Peacekeeping, American Politics, and the Uncivil Wars of the 1990s 275, 301 (William J. Durch ed., 1996). 106 Quoted in Ciment, supra note 3, at 221. 107 U.S. Department of State, Background Note: Mozambique, http://www.state.gov/r/pa/ ei/bgn/7035.htm. 108 World Bank, Beating the Odds: Sustaining Inclusion in a Growing Economy—A Mozambique Poverty, Gender and Social Assessment, available at http://go.worldbank. org/8CYUX8FT00.

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and forged a unified Mozambican identity. Machel’s insistence at independence that all Mozambicans speak a single national language helped to bridge ethnic divides. Guebuza’s ill-conceived Operation Production, for all the ire it invoked, also exposed Mozambicans of different ethnic groups to one another, increasing understanding. Conflicts, in Africa and around the world, with ethnic components are often more intractable than conflicts with mainly external and political causes, as in the case of Mozambique. 6. Support—and Exhaustion—of the Population Finally, the Mozambican population was exhausted after thirty years of war and was firmly committed to maintaining the peace. Ten days after the signing of the GPA, the national assembly adopted a general amnesty for “crimes against the state.” Reconciliation became a primary focus of communities, and there were few if any calls for a truth commission. The religious participants in the negotiations, including Archbishop Gonçalves and the Community of Sant’Egidio, supported the amnesty as a means of Christian forgiveness. At the same time, the traditional animist approach of many Mozambicans viewed war as a force that overtook individuals, and this approach made it easier to see the war itself, rather than individuals, as deserving blame for massacres.109 Andrea Bartoli of the Community of Sant’Egidio writes that traditional leaders played a key role in encouraging their communities to support the peace.110 VI. Conclusion Several necessary, but alone insufficient, factors enabled a country entrenched in war to reach a point where a negotiated peace agreement seemed possible. The first and most vital factor was the termination of malicious outside intervention, mainly in the form of South African military support to Renamo. Renamo had Mozambican leaders and fed off real discontent that Mozambicans felt for their government, but it was not a Mozambican creation, and its muscle and resilience had always come from the outside.111 As the apartheid regime’s support rapidly waned, Renamo leaders suddenly had more to gain from negotiating concessions from the government than from continuing to fight without their primary patrons. This realistic assessment that accompanied Renamo’s growing political sophistication allowed the party to envision a future accommodation with the government and a postwar role for Renamo. Similarly, Frelimo’s situation became more urgent as Zimbabwe made clear that its troops could not indefinitely protect crucial transport routes. 109 Bartoli, supra note 72, at 379. 110 Id. at 368. 111 Hanlon and others argue that the heavily interventionist policies of some of Mozambique’s top sources of foreign aid have merely replaced the old outside actors. While it is true that Mozambique is heavily dependent on foreign aid, and this dependence has harmed Mozambique’s fiscal security and accountability, the influence of outsiders today is not unambiguously harmful and has improved the quality of life for many Mozambican beneficiaries.

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Second, as the Cold War drew to a close and Communist regimes worldwide opened to the outside world, Mozambique’s pragmatic leader Joaquim Chissano accelerated the country’s move toward the West and its economic structures. Mozambique’s acceptance of IMF and World Bank loans forced Frelimo to rethink some of its undemocratic policies and reshape itself from a vanguard movement led by a corps of energized ideologues to a government more responsible to the needs of its people. As discussed above, Frelimo’s flurry of reforms were a mixed blessing, depriving the already self-conscious Renamo negotiators of some of their best arguments. But the transformation of Frelimo also made it more difficult for Western governments and investors to ignore the sheer magnitude of the human and economic costs of the violence in Mozambique. The Community of Sant’Egidio and the British investor Tiny Rowland, as well as the governments of Italy, Zimbabwe, the United States, and Kenya all increased their attention to the crisis in Mozambique and the emerging indigenous moves toward peace negotiations. The drawn-out negotiations and demobilization process suggest that although Mozambique was fortunate to have a variety of factors align to make peace possible, peace was by no means guaranteed. The negotiations in Rome seemed to be close to failure over a number of issues: disagreements over which countries would be mediators, refusal of the two sides to recognize one another, backtracking by Renamo, and preemption of Renamo demands by Frelimo. Without the mediators’ flexibility, nonpolitical status, and skill at shaping the parties’ demands to be reconcilable, the talks might have fallen apart before reaching a cease-fire. The mediators’ success in Mozambique suggests that this high level of mediator involvement might be a model worth adapting for other peace negotiations around the world. At several instances, the mediators were able to maneuver around impasses and to convince the parties to agree to compromises they initially rejected, in part because of the large amount of flexibility the parties allowed them. They retained the ability to prepare all the texts, which allowed the parties to concede to the mediators without feeling like they were capitulating to the enemy. And although lack of trust was a problem that dogged the negotiations from the beginning, the diverse and apolitical group of mediators was able to take risks and maintain communications with all parties in a manner that would have been impossible for representatives of governments and international organizations with domestic and foreign policy considerations. In addition, a cease-fire might have been reached before the contentious issues— the status of the constitution, the political parties law, the future of the Mozambican military—were discussed, and the cease-fire might not have held. Likewise, if ONUMOZ insisted on carrying out elections on schedule, even though the demobilization of soldiers had barely begun, or if the donors refused to bribe Renamo officials into staying quiet, they might have dismissed the elections and returned to the bush. The subject of bribing former warlords is an uncomfortable one, but in the case of Mozambique, it was one of the wisest and most cost effective moves the international community made. If outside actors are to engage in such bribery again, they should be careful not to make the payments create incentives for new players to take up arms. Payments worked in the case of Mozambique largely because Renamo leaders retained control over their troops, who were not broken into messy, ideologically

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driven factions, and because Dhlakama and his henchmen made modest demands and were sincere in their commitment to ending their resistance for a price. The lessons of Rome, ONUMOZ, and beyond will clearly not be enough to transform every war-torn society—the most skillful mediators cannot make peace when the parties are not truly committed or when external or internal chaos takes the violence out of the leaders’ hands. Yet, the case of Mozambique also serves as a reminder to activists in situations ripe for negotiations that careful mediation, vigilance, donor support, and goodwill truly can make a difference.

Index

Introductory Note References such as “138–9” indicate (not necessarily continuous) discussion of a topic across a range of pages. Wherever possible in the case of topics with many references, these have either been divided into sub-topics or only the most significant discussions of the topic are listed. Because the entire volume is about “war-stopping” and “peacemaking”, the use of these terms (and certain others occurring throughout the work) as an entry point has been minimized. Information will be found under the corresponding detailed topics. A

Abuza, Z, 147–8, 152, 162, 164–5, 169 accords, 99, 101, 109–10, 113, 206 accountability, 153, 174, 179, 209 actors, 29, 54, 56, 93–4, 111–12, 114, 209–10 Afghanistan, 65, 121, 145 akazu, 84, 92–3, 97, 99, 101–3, 109–13, 115 Aliev, Heidar, 53, 57, 61, 63, 65–6, 68–71, 74 Aliev, Ilham, 70 Almirante Belgrano, 8, 16–17, 21, 33–4 Amin, Idi, 82 amnesties, 97, 142, 153, 155, 172, 174–5, 209 ANC (African National Congress), 194, 196 Andersen, R, 85, 91–2 Angola, 186–7, 190–1, 205, 207 ANM (Armenian National Movement), 49–50 APF (Azerbaijan Popular Front), 49, 51 arbitration, 40–1 Argentina, 2–13, 15–21, 25–6, 28–33, 35, 37–9, 41 see also Falklands forces, 7, 9–10 invasion of Falklands, 5, 18, 24, 31, 37 leadership, 26–7

sovereignty, 11, 19 Armenia, 43–4, 46–50, 52, 54–8, 61–4, 67–72, 75 and Azerbaijan, 44, 48–9, 54, 56–7, 60, 68–70, 73 and Nagorno Karabakh, 51, 55 Armenian forces, 51–4, 58, 61, 64–6, 68 Armenian leadership, 55, 64, 71 Armenian National Movement see ANM Armenians, 44–6, 48–54, 56, 58–9, 61–4, 69–70, 72 and Azerbaijanis, 43–4, 49, 70–1, 73 Karabakh, 47, 49, 58–9, 63–4, 66–8 Arquilla, J, 21, 24–6 Arusha Peace Process, 77–8, 93–102, 106, 117 reasons for failure, 108–17 Arya, G, 150, 167–8, 174, 178–9 assassinations, 44, 69, 77, 103–4, 107 authority, 27–8, 38, 55, 67, 69–70, 108, 173–4 autonomy, 44, 55, 174 regional, 174, 179 Azerbaijan, 43–4, 46–58, 60–6, 68–73, 75 Azerbaijan Communist Party, 49–50 Azerbaijan Popular Front see APF Azerbaijani forces, 47, 49, 51–2, 57, 62, 65 Azerbaijani refugees, 48, 71

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Azerbaijanis, 43, 48–53, 55–6, 58, 62–3, 70, 74 Armenians and, 43–4, 49, 70–1, 73 Azeris, 45–8, 58

B

Baker, J, 123, 125–7, 129–30 Baku, 45–9, 52–3, 57, 61–2, 66–7, 72 Banyarwanda, 82 Barisan Revolusi Nasional see BRN Barisan Revolusi Nasional-Coordinate see BRN-C behavior: as conflict driver, 168–9 Belaunde Terry, Fernando, 8, 16–18, 20, 31–4, 39 see also Falklands, Peruvian mediation Belgians, 80–1, 87, 105, 113 Belgium, 79, 86, 94, 105 Belgrano, 8, 16–17, 21, 33–4 Berjihad di Pattani, 157, 160, 171, 182 Berkeley, W, 79, 103 Bersatu, 154 borders, 44, 52–3, 64, 86–9, 103, 107–8, 182 Botha, PW, 190, 195–7 Brazil, 16, 26, 33 Briggs, Lieutenant General Sir Harold, 135–7, 181 Britain, 1–8, 10–11, 15, 25–7, 33, 35–7, 41 see also Falklands; Malaya BRN (Barisan Revolusi Nasional), 152, 154, 162 BRN-C (Barisan Revolusi Nasional-Coordinate), 162 brutality, 82, 131–2, 153, 175, 180–1, 205 Buddhism, 150, 152, 173 Buddhists, 156, 160, 167, 171 Buenos Aires, 2–3, 5, 8, 11–14, 23, 27–30 Burundi, 79, 82, 87, 94, 103, 107–9

C

Caucasus, 43–7, 51, 54, 56, 63, 65, 73 CDR (Coalition pour la Défense de la République), 91–2, 97–9, 102, 109, 111–12, 115 cease-fires, 53–5, 57–60, 62–5, 70–3, 87–90, 95, 201–3 children, 132, 167–8, 179, 187, 191–2 Chile, 26, 32–3 Chin Peng, 122, 129–31, 136, 142–3, 145–6 China, 124–7, 130, 190 Chinese, 123–9, 133, 138–40, 146

Chinese squatters, 130–1, 135, 146 Chissano, Joaquim, 194, 197–9, 202–4, 206, 210 church leaders, 198–9 Ciment, J, 186–97, 199, 202–3, 206, 208 CIS (Commonwealth of Independent States), 45, 61, 65–6 cities, 45, 47–8, 51, 53, 68, 125, 127 civilian populations/civilians, xviii, 11, 51, 62, 107, 158–60, 165, 172, 192 Clapham, C, 84, 86, 88, 91, 100–1, 109–12, 117 Claude, IL, xvi, 1, 7, 18, 24, 34, 36–8 coalition governments, 85, 91–2, 112, 114, 198 Coalition pour la Défense de la République see CDR Coates, J, 133–4, 137, 139–41, 181 Cohen, Herman, 93–4, 204–5 COIN (counterinsurgency operations), 121, 130, 144, 156, 163, 177, 180–1 Cold War effects: Mozambique, 190–1 collective security, 18, 34, 37 colonialism, 26, 79–80, 121, 146, 179 Commonwealth of Independent States see CIS Communism, 125–6, 141, 143, 179, 190 Communist Terrorists see CTs Communists, 122, 126, 128–30, 136, 138, 144, 146 compromise, 20–3, 26–7, 67–8, 72, 74–5, 93–4, 115 concessions, xviii, 10–11, 13, 24, 26, 74, 110 Conference on Security and Cooperation in Europe see CSCE conflict drivers, 23 behavior, 168–9 dynamic interaction, 172 dynamic interaction of, 172 identity, 166–8 religion, 169–71 southern Thailand, 166–72 structure, 169 constitutions, 68, 142, 149, 199, 202–3, 206, 210 constructive violence, 122, 145–6 control, 14, 78–9, 83–4, 107–8, 128, 132, 158–9 Cornell, S, 44–53, 55–9, 61–5, 67–9, 74–5 corruption, 85, 115, 168–9, 175, 180–1 Costa Mendez, Nicanor, 4, 11–14, 16

Index counterinsurgency operations see COIN (counterinsurgency operations) counteroffensives, 51–3, 88–9 credibility, xvii, xix, 1, 20, 24, 27–8, 35–6 Croissant, M, 43–9, 51–3, 55–6, 58, 60–3, 65–9, 147 CSCE (Conference on Security and Cooperation in Europe), 54, 56, 58–63, 65–8, 73 CTs (Communist Terrorists), 131–7, 141–2, 146 Cuellar mediation see Perez de Cuellar, Secretary-General

D

Dallaire, Roméo, 104–6, 113 de Waal, T, 44–52, 54–5, 57–62, 64–6, 69, 72, 78 deadlines, 13, 16, 102, 176 deadlock, 10, 32, 38, 201 death squads, 103–5 defeat, 19, 47, 75, 88, 101, 121, 132 demobilization: Mozambique, 205–7 democracy, 19, 23, 80, 83, 91–2, 95, 149 democratization, 80, 89, 111–12, 114–15 pressures, 77, 109, 114 Rwanda, 91–3 deportation, 50, 129, 132–3 Des Forges, A, 92, 94, 97, 99, 103, 106, 113–14 Dhlakama, Afonso, 189, 192, 194–5, 198–200, 202–4, 206, 208 dialogue, 22, 87, 94, 145, 198–9 diplomacy, xvi, 1–2, 8, 12, 202 shuttle, 9–15, 24–31, 56, 59, 68, 73 dirty war, 21 domestic opposition, 65, 69, 74, 97, 109, 112 donors, 77, 85, 87, 201, 205, 210 dynamic interaction of conflict drivers, 172

E

Eddy, P, 4–7, 10, 14, 16–18 education, 135, 168, 179, 187, 192, 196 Elchibey, Abulfaz, 49, 51–3, 57, 61–3, 65, 71 elections, 49–50, 70, 139, 153–4, 202–3, 205–8, 210 Eliasson, Jan, 59, 65–6, 73 elites, 74, 82, 84, 183 enforcement and mediation: problem of mixing, 36–8 escalation, xv, 50–1, 64, 154

215

ethnic Chinese, 123, 125–6 ethnic elements, absence of, 208–9 ethnic groups, 78, 80, 82–3, 208–9 ethnic Malays, 123–5, 127–9, 131, 134, 138, 144, 167–8 ethnic violence, 80–1 ethnicization, 79–81, 91 external support, 122, 145, 206 extrajudicial killings, 155, 158, 161, 163, 168, 180

F

Falklands, xvi, xviii, 1–1, 11, 13–25, 27–31, 33–41 appraisal of war-stopping measures, 20–38 Belaunde’s mediation see Falklands, Peruvian mediation disputants’ domestic constraints, 20–4 Haig mediation see Falklands, US shuttle diplomacy history, 2–7 islanders, 4–5, 10, 13, 15–16 lessons learned, 38–41 optimism bias, 24–7 Peruvian mediation, 16–18 detachment, 33–4 interests of mediator, 31–3 problems, 31–4 process, 33–4 UN Secretary-General’s efforts, 18–20 see also Perez de Cuellar, SecretaryGeneral credibility, 35–6 inflection point, 34–5 mixing enforcement and mediation, 36–8 problems, 34–8 process, 36–8 timing, 34–5 US shuttle diplomacy, 9–15 see also Haig, Alexander authority, 27–8 Buenos Aires Round One, 11–12 Buenos Aires Round Two, 13–15 credibility, 27–8 London Round One, 10–11 London Round Two, 13 mixed messages, 29–31 problems, 24–31 process, 28–9 timing, 24–7

216

Index

war, 7–9 war-stopping techniques, 9–20 FAM (Mozambican Armed Forces), 192–3 fanaticism, 91–2, 99, 102 Finnegan, W, 186–8, 190, 192–8, 203 flexibility, 14, 204, 206, 210 food, 45, 127, 132–6 France, xvii, 2, 40, 58, 68, 86, 93–4 and Nagorno Karabakh, 68–9 Franks, Lord, 4–6 Freedman, L, 16–19, 27, 29–30 freedom, 23, 199, 202, 204 Frelimo, 186–9, 191, 193–7, 201–4, 206–7, 210 government, 187, 190, 192, 195, 198–9, 201–2 leaders, 193–4 response to Renamo, 192–4

G

Galtieri, President Leopoldo, 9, 11–14, 16, 21–3, 26, 29 Gamba-Stonehouse, V, 16–19, 27, 29–30 Garde Présidentielle see GP Gbadolite, 88, 90, 95 General Peace Agreement see GPA genocide, xviii, 77–81, 86, 91–2, 103–8, 110–18 geography, 43, 75, 121, 123, 183 Georgia, 43–7, 50, 62–3, 68 Gerakan Mujahideen Islam Pattani see GMIP GMIP (Gerakan Mujahideen Islam Pattani), 154, 163–5, 170 Goble Plan, 69, 74 GoR (government of Rwanda), 86–91, 93–8, 100, 102, 106, 108–12, 114–17 Gorongosa, 189, 193, 195, 198, 203–4 government of Rwanda see GoR GP (Garde Présidentielle), 105, 116 GPA (General Peace Agreement), 185, 194, 200, 202, 204–5, 209 Great Britain see Britain; Falklands; Malaya Gribbin, RE, 107–8 grievances, 95, 122, 150, 153, 166, 174–5, 180 Guebuza, Armando, 188, 200, 204, 206, 209 Gunaratna, R, 147, 150–2, 154, 156–7

H

Habyarimana, Juvénal, 77, 84–91, 93–102, 104, 107–12, 114–15

Haig, Alexander, 8, 10–18, 20, 23–33, 35–6, 39 Haig team, 14, 23–4, 27, 29 Haji Sulong see Sulong Abdulkader, Haji Hamitic Thesis, 79–80 Hastings, M, 3–4, 8, 10–14, 17–19, 23, 26, 35–6 human rights, 95, 157, 183 abuses, 21, 91, 153, 155, 161, 190, 192 Hume, C, 195–205 Husseinov, Colonel Surat, 52–3 Hutu, 78–81, 83–4, 92, 94, 100, 103–4, 107

I

identity, xvii, 20, 84, 153, 169, 171–2 as conflict driver, 166–8 Malay-Muslim, 151, 161, 166–8, 171, 173, 175 national, 43, 46, 74, 152 ideology, 25, 144, 147, 154, 156, 164–5, 169–70 Idi Amin, 82 IEDs (improvised explosive devices), 160, 171 IMF (International Monetary Fund), 88, 91, 193, 196 immigration, 14, 121, 123–5, 146 impartiality, 17, 27–8, 31, 33, 40 implementation, 37, 70, 77–8, 80, 88, 112–14, 116–18 improvised explosive devices see IEDs independence, 47, 50–1, 54, 74, 81, 84, 185–8 Indians, 123–5, 129, 146 Indonesia, 123, 142, 162 inflection points, 1, 34–5, 39 information, 104, 135, 139–41, 144, 200, 205 services, 140–1 infrastructure, 133, 149, 166, 169, 174, 205 insurgencies, xviii, 82, 88–9, 122, 129–34, 143–4, 159–62 insurgent groups/organizations, xviii, 145, 152–3, 160–1, 165, 174, 178 integration, 77, 95, 100, 109, 149 integrity, territorial, 40, 54, 68–9, 150, 173, 177, 183 intelligence, 82, 86, 113, 117, 128, 131, 140–1 intercommunal violence, 47, 158, 161, 164, 181 interim administrations, 9–14, 19, 32

Index international community, xvi, xviii–xix, 43, 77–8, 107–9, 114, 144–6 international intervention, xvi, 1, 43, 75, 77, 121–2, 145 International Monetary Fund see IMF international peacekeeping, 65–6, 70 international pressure, 74–5, 93, 145 intervention, xvi, xviii, 1, 27, 35, 79, 189 international, xvi, 1, 43, 75, 77, 121–2, 145 invasions, 6–7, 9, 21–2, 24, 26, 30, 86–7 Iran, 54, 56–7, 60, 145 Iranian mediation efforts: Nagorno Karabakh, 56–8 Iraq, 121–2, 132, 144–5, 155, 170, 205 Islam, 124, 152, 155, 160–1, 165–7, 169–71 islanders, Falklands, 4–5, 10, 13, 15–16

J

Japanese, 126–9, 150 Jemaah Islamiyah, 160, 163–4 Jenkins, S, 3–4, 8, 10–14, 17–19, 23, 26, 35–6 jihad, 151, 157, 165, 170–1 Jones, BD, 80, 82–7, 89–101, 104, 106–8, 111–13 jungles, 128–9, 131, 133–5, 137, 140–2, 146 junta, 7, 11–14, 16–17, 19, 21–31, 39–41

K

Kagame, Paul, 82, 86, 94, 107–8 Karabakh, 44–5, 47, 49, 52, 55–6, 62, 64 see also Nagorno Karabakh Karabakh Armenians, 47, 49, 58–9, 63–4, 66–8 Karabakh Committee, 49–50 Kayibanda, Grégoire, 80–1, 83–4, 92, 99 Kelbajar, 52, 54, 61–2 Kenya, 198–201, 203, 210 Key West, 69–70, 74 Kigali, 77, 83, 91, 93–4, 104–5, 107–8, 110–12 killings, 98, 105–6, 111, 122, 133, 147, 156 extrajudicial, 155, 158, 161, 163, 168, 180 Kinney, D, 6, 8–9, 12–19, 27, 33–4, 37 Kirkpatrick, Jeane, 30–1, 39 Kleiboer, M, 25, 27–8, 34 Korean War, 121, 130, 140, 143, 146 Krue Se, 157

217

L

Lachin, 54, 66, 68–9 Lai Tek, 127–9 language, 59, 78, 150, 166–8, 172, 175 lasting peace, 10, 71–2, 147, 177, 183 system, 144–6 Laucirica, JO, 2, 36–7 leaders, 17, 20, 49–50, 81, 137–8, 183, 198–9 religious, 91, 181–2, 188 leadership, 22, 48–9, 90, 162–3, 181 Argentina, 26–7 Armenian, 55, 64, 71 Rwanda, 81–3 legitimacy, 20–1, 145, 148, 172–3, 178–81, 199, 201 Lemarchand, R, 84, 103, 110 lessons learned, xvi–xvii, 1–2 Falklands, 38–41 Malaya, 142–7 Mozambique, 185, 209–11 Rwanda, 117–19, 121–2 leverage, xvii–xix, 14, 27–8, 34, 38, 40, 60 liberated areas, 131, 186–7 Linklater, M, 4–7, 10, 14, 16–18 Lippincot, D, 2–7, 9, 11–13, 27, 30 local populations, 19, 152–3, 158, 163–4, 167–8, 174–6, 178–80

M

McCargo, D, 151, 154, 160, 175, 177 Machel, Samora, 186–9, 192, 194–5, 197, 209 Mackay, D, 127–33, 135–43 Malawi, 195, 200, 204 Malay-Muslim identity, 151, 161, 166–8, 171, 173, 175 Malay-Muslim insurgency, 148, 164 Malay-Muslims, 147–50, 153, 164–5, 167–70, 172–3, 177–8, 182–3 Malay rulers, 127, 129, 138 Malaya, xviii, 121–1, 129–30, 133, 135–9, 142–6, 181 British defeat by Japanese, 126–7 early history, 123–5 Emergency, xviii aftermath, 142–5 arrival of Templer, 137–8 Briggs Plan, 135–7 British strategy and operations, 132–4 British tactics, 134–5

218

Index

early British failures and innovations, 130–7 evaluation, 142–5 information services, 140–1 intelligence, 140–1 lessons learned, 142–7 MCP strategy and tactics, 131–2 military doctrine and operations, 139–40 police, 140–1 politics, 138–9 tactical, operational, and strategic victory, 137–42 World setting, 130 European occupation, 124–5 foundations of Communism, 125–9 geography, 123–4 independent, 125, 141–2 Japanese occupation, 127–8 Lai Tek, 128 Malayan resistance, 128 Postwar era, 129 rise of MCP, 126 settlement, 123–4 Malayan Chinese Association see MCA Malayan Communist Party see MCP Malayan Emergency see Malaya, Emergency Malayan Indian Congress see MIC Malayan People’s Anti-British Army see MPABA Malayan People’s Anti-Japanese Army see MPAJA Malayan People’s Anti-Japanese Union see MPAJU Malayan Races’ Liberation Army see MRLA Malays see ethnic Malays Malaysia, 129, 138, 142, 151, 165, 177–8, 181–3 see also Malaya Malvinas see Falklands Mamdani, M, 79, 81–5, 103–4, 106 Mamedov, Yaqub, 51, 57 Maputo, 188, 194, 199, 204, 206–7 Maresca, J, 58–60, 62, 72–3 massacres, 62, 79, 91, 103, 105–7, 116–17, 209 see also genocide MCA (Malayan Chinese Association), 133, 138

MCP (Malayan Communist Party), 126–31, 133, 135, 139, 142–3, 146 rise, 126 strategy and tactics, 131–2 MDR (Mouvement Démocratique Républicain), 92, 96–7, 99–100, 102, 105, 109, 112 mediation, 1, 8–10 Cuellar’s see Perez de Cuellar, SecretaryGeneral Falklands, 16–20, 23–8, 32–41 Haig’s see Haig, Alexander Nagorno Karabakh, 54–63, 65–9 Peruvian, 16–18, 31–4 problems credibility, 27–8, 35–6 detachment, 33–4 Falklands, 24–38 interests of mediator, 31–3 mixed messages, 29–31 mixing enforcement and mediation, 36–8 optimism bias, 24–7 process, 28–9, 33–4, 36–8 timing, 24–7, 34–5 role, 36, 38–9, 195 UN, 17, 34–8 unilateral, 60–1 mediators, 16–18, 31–5, 57, 66–7, 71–3, 200–5, 210 Melayu, 167–8, 178–9 messages, mixed, 24, 29–31, 39 MIC (Malayan Indian Congress), 139 military victory, 65, 72, 74, 86, 115, 122, 192–3 militias, 54, 107–8, 161, 163–4, 181 Min Yuen, 131, 135, 139, 141 minority populations, 147–8, 166, 173 Minsk Group, 58–63, 65–70, 75 Minter, W, 187, 189–90, 192, 194 mixed messages, 24, 29–31, 39 Moscow, 47, 49–50, 60–1, 63, 66–7 Mouvement Démocratique Républicain see MDR Mouvement Révolutionnaire National pour le Développement see MRND Mozambican Armed Forces see FAM Mozambicans, 186–8, 192–3, 196, 198, 208–9 Mozambique, xviii, 185–5, 201, 203–11 Civil War, 187–94 causes, 187–90

Index negotiations to end war, 194–205 operations, 191–4 parties, 187–90 war-stopping to peacemaking, 205–9 Cold War effects, 190–1 constitution, 202–3 demobilization first, elections second, 207 economic development, 208 ethnic elements absent, 208–9 exhaustion, 209 failed negotiations, 194–6 Frelimo see Frelimo history, 185–7 independence struggle, 186–7 lessons learned, 209–11 negotiations to end war, 194–205 Nkomati Accord, 194–5 ONUMOZ, 205–6 optimism, 208 peace factors helping to maintain, 206–9 Portuguese presence, 185–6 postelection period, 206 Pretoria Declaration, 195–6 Renamo see Renamo resources, lack of, 207 Rome, 200–5 road to, 196–200 support of population, 209 MPABA (Malayan People’s Anti-British Army), 130–1 MPAJA (Malayan People’s Anti-Japanese Army), 127–9, 131 MPAJU (Malayan People’s Anti-Japanese Union), 128, 131 MRLA (Malayan Races’ Liberation Army), 131 MRND (Mouvement Révolutionnaire National pour le Développement), 85, 91–2, 96–8, 109 Msabaha, I, 194–5, 197, 199 Museveni, Yoweri, 82–3, 86–7, 94, 98, 111 Muslims, 148, 151, 156, 158, 160, 165, 170–1 see also Islam Mutalibov, Ayaz, 49–51, 56–7

N

Nagl, Colonel John, 121, 123, 125–7, 129, 134–6, 138–9, 181 Nagorno Karabakh, xviii, 43–75 see also Karabakh

219

analysis, 70–5 background, 43–4 Caucasian independence, 46–7 conclusions, 70–5 CSCE mediation efforts, 58–63, 65–8 decade without progress, 69–70 failed war-stopping, 54–63 French efforts, 68–9 history, 44–54 Iranian mediation efforts, 56–8 open warfare, 50–4 OSCE mediation efforts, 58–60, 62–3 road to war, 48–50 Russian Empire, 45–6 Russian mediation efforts, 60–3, 65–9 Soviet period, 47–8 collapse of Soviet power, 50–4 Turkish mediation efforts, 56–8 United States efforts, 68–9 war-stopping without peace, 64–70 World War I, 46–7 Yeltsin-Nazarbayev mediation, 54–6 Nagorno Karabakh Autonomous Oblast see NKAO Narathiwat, 148–9, 154, 156, 169, 176 national identity, 43, 46, 74, 152 National Reconciliation Commission see NRC National Revolutionary Army see NRA national security, 175–6 national unity government, 138, 146 nationalism, 44, 49, 74, 152, 171 natural resources, 1, 179 negotiations, 3–6, 59, 64–6, 93–8, 194–5, 201–4, 209–11 Neutral Military Observer Group see NMOG neutrality, 26–7, 30, 40, 56 New-PULO, 154, 163 new villages, 133, 136, 138–41, 146 NGOs, xix, 123, 181 Ngulinzira, Boniface, 92–5, 112 Nigeria, 89, 94–5 NKAO (Nagorno Karabakh Autonomous Oblast), 48–9, 51 Nkomati Accord, 194–5 NMOG (Neutral Military Observer Group), 95 nongovernmental organizations, xix, 123, 181 NRA (National Revolutionary Army), 82–3

220

Index

NRC (National Reconciliation Commission), 152, 158–9, 166–7, 176–9

O

OAU (Organization of African Unity), 87, 89, 94–5, 98 Obote, Milton, 82 offensives, 9, 51–3, 63–5, 88, 98, 106, 116 ONUMOZ (Operation in Mozambique), 205–6, 210–11 Operation in Mozambique see ONUMOZ opposition, 69–70, 74, 126, 185, 190, 193, 202 domestic, 65, 69, 74, 109, 112 opposition parties, 77, 85, 87, 91–2, 97, 99, 102 optimism, 8, 84, 208 bias, Falklands, 24–7 Or Sor, 163, 181 Organization for Security and Cooperation in Europe see OSCE Organization of African Unity see OAU OSCE (Organization for Security and Cooperation in Europe), 45, 54, 58–60, 62–3, 67–9, 75

P

Pan-Turkism, 46 paramilitaries, 50, 161, 163, 181 Parti Libéral see PL Parti Socialiste Démocratique see PSD Pattani, 148–51, 153–4, 156–9, 161–2, 165–7, 171–3, 178–83 see also southern Thailand Pattani, Berjihad di, 157, 160, 171, 182 Pattani United Liberation Organization see PULO Pattani United Liberation Organization (PULO) and New-PULO see NewPULO; PULO Paul, TV, 20–1, 26 peace: see also Introductory Note lasting, 10, 71–2, 144, 147, 177, 183 sustainable, 77, 95, 101, 108, 148, 181, 183 systems, xvii, 122, 145, 148, 153, 172, 178 peace agreements, 67, 73, 77–8, 97, 101–2, 114, 185 peace negotiations, 35, 68, 71, 92–3, 110–11, 197–8, 210

peace processes, 59, 66–7, 73, 93, 114, 117–18, 198–200 peacekeepers, xvi, 58, 63, 88, 104 peacekeeping, 37, 60–1, 66–7, 78, 90, 95, 113 international, 65–6, 70 OSCE, 68 robust, 117–18 peacemakers, xvii–xviii, 114, 116–18 would-be, 31, 185 peacemaking see Introductory Note Perez de Cuellar, Secretary-General, 8, 18–20, 34–41 see also Falklands, UN Secretary-General’s efforts Peruvian mediation, 16–18, 31–4 Phibun Songkhram, General, 150, 167, 172–4, 176 PL (Parti Libéral), 92, 94, 96–7, 102 plantations, 140, 186 police: Malayan Emergency, 135–7, 140–2 Nagorno Karabakh, 54 Rwanda, 107–8 Thai, 147, 155, 165, 168, 172, 180–1 police stations, 133, 156–7 political fragmentation: Rwanda, 91–3 political participation, 111, 174–5 political power, 92, 96, 99, 115, 118 political violence, 160, 172, 175, 183 popular support, 11, 20, 22, 112, 175 popularity, 20–2, 49, 187, 192 Port Stanley, 7, 9, 14 Portugal, 186–7, 197, 201, 204 Portuguese, 2, 185–7, 189, 193 power, 73–5, 78–9, 84, 92–3, 96–9, 101–4, 114–15 power-sharing, 53, 95–7, 206 Prague Process, 70 Prem Tinasulanond, General, 153–4, 159, 172, 174–8, 180 pressure, international, 74–5, 93, 145 Pretoria Declaration, 195–6 protests, 47–9, 66, 68–9, 97, 129, 157–9, 168 Prunier, G, 79, 84, 86, 88, 90–1, 93–4, 105–6 PSD (Parti Socialiste Démocratique), 92, 96–7, 102 PULO (Pattani United Liberation Organization), 152, 162–3, 165 New see New-PULO

Index R

radical Islamist ideologies, 154, 170 radicalization, 91–3, 98, 100, 102, 110–12 Rainbow Warrior affair, 40 Rangers, 163, 181 Rasmussen, MM, 21, 24–6 RDC see Republic of Congo Reagan, Ronald, 6, 29–30, 39, 191, 194, 197 reconciliation, xvii, xix, 152, 177, 181, 198–9, 208–9 reforms, 87, 92, 110, 114, 154, 168, 180–1 religious, 178–9 refugees, 43, 52–3, 64, 94–5, 103, 107–8 Azerbaijani, 48, 71 Tutsi, 81–2, 84 regime change, 82–3, 85 regional autonomy, 174, 179 religion, 150, 152, 161, 163, 165–73, 198 as conflict driver, 169–71 religious leaders, 91, 181–2, 188 religious reforms, 178–9 religious schools, 151–2, 162, 167–8, 175 Renamo, 185, 188–9 delegations, 200–1 incentives to stay out of bush, 208 leaders, 191, 208–10 tactics and goals, 191–2 Republic of Congo (RDC), 108 Republic of Rwanda see Rwanda resentment, 149–50, 166–7, 188 resources, xviii, 65, 73–5, 88, 138, 143, 191 natural, 1, 179 revenge, 47–8, 83 Rhodesia, 189, 192 Ridley, Nicholas, 5 Rome, 58, 185, 194, 200–5, 210–11 road to, 196–200 RPF (Rwandese Patriotic Front), 82–3, 85–101, 106–13, 115–17 forces, 85–6, 88, 92, 100–1 invasion, 90–1, 111 military superiority, 109–10 victory, 106–8, 115–16 rubber, 124, 127, 130, 133, 140 Russia, 45–6, 49, 52–6, 58, 60–3, 65–9, 71–3 see also Soviet Union peacekeeping, 61, 66, 73 Revolution, 46–7 Rwanda, 77–119 Arusha Peace Process, 93–101 reasons for failure, 108–17 assassination of Habyarimana, 104

221

colonial rule, 79–81 democratization, 91–3 displacement of war, 106–8 genocide, xviii, 77–81, 86, 92, 104–6, 108, 110–18 history, 78–85 Hutu, 78–81, 83–4, 92, 94, 100, 103–4, 107 international mediation, 93–101 lessons learned, 117–19 nonimplementation, 101–4 political fragmentation, 91–3 postcolonial, 83–5 radicalization, 91–3 rise of new leadership in exile, 81–3 RPF victory, 106–8 stalling, 101–4 Tutsi, 78–84, 91–2, 100, 103–4, 106 exodus, 81–3 war between RPF and government, 86–101 Arusha Peace Process, 93–101 democratization, 91–3 early efforts to stop war, 87 early skirmishes, 86–7 inefficacy of regional war-stopping efforts, 87–91 political fragmentation, 91–3 radicalization, 91–3 Rwandese Patriotic Front see RPF

S

sabotage, 66, 78, 109, 117–18, 191 SADF (South African Defense Forces), 193, 195 Sant’Egidio, xix, 198–201, 209–10 SAP (Structural Adjustment Program), 85, 88 SBPAC (Southern Border Provinces Administration Center), 174–5, 180 schools, 133, 138, 167, 192 religious, 151–2, 162, 167–8, 175 Secretary-General (UN), 18–20, 34, 36–8, 40, 62, 105–6, 205 see also Perez de Cuellar, Secretary-General security, 36–7, 54, 59, 108, 150, 155–6, 173–4 collective, 18, 34, 37 national, 175–6 Security Council (UN), 18–19, 36–9, 62, 102, 105–7, 117, 205

222

Index

security forces, 107, 136–7, 142–3, 157–8, 161–6, 168–9, 180–3 separatist groups, 156, 160, 165, 175, 183 separatist violence, 147–8, 150, 154–5, 160 separatists, 158, 160–1, 164, 170–1, 178 Shinawatra, Thaksin see Thaksin Shinawatra Shusha, 45–6, 57, 66, 68 shuttle diplomacy, 56, 59, 68, 73 Falklands, 9–15, 24–31 Siam, 124, 149–50, 173 see also Thailand Singapore, 123, 126, 128, 142 South Africa, 186, 189–90, 192, 194–5, 197, 203, 209 South African Defense Forces see SADF Southern Border Provinces Administration Center see SBPAC southern Thailand, 147–7, 159–64, 166, 169–72, 176–8, 180–3 addressing long-standing grievances, 178–80 Barisan Revolusi Nasional-Coordinate (BRN-C), 162 challenges to lasting peace, 177–8 conflict drivers, 166–9 behavior, 168–9 dynamic interaction, 172 identity, 166–8 religion, 169–71 structure, 169 current phase, 156–65 critical events, 156–9 insurgent groups and violent actors, 162–4 insurgent ideology, objectives, and strategy, 164–5 key trends, 159–62 foreign elements, 164 framework for understanding violence and promoting peace, 166–72 General Phibun Model, 173–4 General Prem Model, 174–5 Gerakan Mujahideen Islam Pattani (GMIP), 163 history, 148–55 annexation to organized insurgency, 149–51 height of organized resistance, 151–3 new approach, 153–4 Thaksin Shinawatra, 154–5 insurgent ideology, objectives, and strategy, 164–5

Malaysian cooperation, 182–3 middle-range and grassroots agents of peace, 181–2 militias, 163–4 new approach to counterinsurgency (coin) operations, 180–1 paramilitaries, 163–4 Pattani United Liberation Organization (PULO) and New-PULO, 163 relieving intercommunal tensions, 181–2 Thaksin Model, 175–6 war-stopping approaches (past), 172–6 sovereignty, 2, 4–5, 10–12, 14–15, 39–40, 58, 174 guaranteed, 13–14, 19 transfer of, 4–6, 19 Soviet Union, 10, 43, 54, 61, 190, 196, 201 status quo, 64, 71–3, 75 Stepanakert, 51, 55, 57, 62 Structural Adjustment Program see SAP structure: as conflict driver, 169 success, 24, 27–8, 35, 45, 113–14, 130–1, 142–4 Sulong Abdulkader, Haji, 150–1, 167, 174, 179 sustainable peace, 77, 95, 101, 108, 148, 181, 183

T

Tak Bai, 157–9, 163 Tanzania, 82, 87, 93–4, 98–9, 104, 107 Tebbs, J., 78–81, 83–7, 91–2, 95, 99–102, 104–5, 107–8 Templer, General Sir Gerald, 137–41 arrival, 137–8 Ter-Petrosian, Levon, 50, 55, 57–9, 68–9, 74 territorial integrity, 40, 54, 68–9, 150, 173, 177, 183 TEZ (total exclusion zone), 7 Thai-Buddhists, 151, 164, 169, 178 Thai government, 148, 150–1, 161, 168, 171, 178–9, 182–3 Thailand see southern Thailand Thainess, 150, 167 Thaization, 150, 160, 173–4 Thaksin administration, 155, 159, 176–7, 182 Thaksin Shinawatra, 154–9, 170, 172, 175–7, 180, 183 and breakdown of stability in southern Thailand, 154–5

Index southern Thailand strategy, 175–6 Thatcher, Margaret, 5, 7–8, 10–15, 18–19, 21–3, 25, 35–6 timing, 20, 24, 27, 34, 57 Tinasulanond, General Prem see Prem Tinasulanond, General total exclusion zone see TEZ trains, 131–2, 189, 206 transfer of sovereignty, 4–6, 19 transitional governments, 77, 96–7, 99–100, 102, 104, 109–11 transitions, 80, 87, 93, 99, 102, 110–11, 178 Treverton, GF, 2–7, 9, 11–13, 27, 30 Tunku Abdul Rahman, 138–9, 142, 146 Tunnicliff, KH, 15, 18, 35 Turkey, 52–4, 56–8, 60–3, 65, 75 Tutsi, 78–84, 91–2, 100, 103–4, 106 exodus, 81–3 monarchy, 79–80 refugees, 81, 84

U

Uganda, 81–3, 86–8, 90, 94, 115 UMNO (United Malay Nationalist Organization), 138–9 UN see United Nations UN Assistance Mission for Rwanda see UNAMIR UN High Commissioner for Refugees see UNHCR UNAMIR (UN Assistance Mission for Rwanda), 99, 102, 104–7, 109, 112–13, 117 UNHCR (UN High Commissioner for Refugees), 94, 107 unilateral mediation, 60–1 United Kingdom see Britain; Falklands; Malaya United Malay Nationalist Organization see UMNO United Nations, xv, xix, 3, 15, 18–20, 34–8, 94–5, 123 Assistance Mission for Rwanda see UNAMIR

223

High Commissioner for Refugees see UNHCR Operation in Mozambique see ONUMOZ peacekeepers, 102, 105 Secretary-General see Secretary-General Security Council see Security Council United States, 1–2, 8–9, 39–41, 93–4, 104–6 and Falklands, 9–15, 24–31 see also Haig, Alexander and Nagorno Karabakh, 68–9

V

victor’s agreements, 77, 101, 109, 115–16, 118 victory, xvii–xviii, 26, 71, 74–5, 83, 91–2, 121 military, 65, 72, 74, 86, 115, 122, 192–3 Vietnam, 121, 143, 181 violence, xv–xix, 46–9, 144–5, 152–6, 161–6, 168–72, 175–9 constructive, 122, 145–6 ethnic, 80–1 political, 160, 172, 175, 183

W

Walker, C, 44–5 war-stoppers, 1, 8–9, 20, 22–3, 28–9, 38–9, 118 war-stopping see Introductory Note withdrawals, 7, 9–10, 17, 26, 51–2, 61, 105–6 World Bank, 88, 91, 208 World War I, 46–7, 79–80, 125, 150, 162 World War II, 80, 121, 125, 131, 137, 146, 150

Y

Yala, 148–9, 154, 156, 169, 176 Yeltsin-Nazarbayev mediation, 54–6 Yerevan, 48, 51, 55, 57, 62, 66

Z

Zaïre, 82, 86–90, 94, 107–8, 116 Zimbabwe, 94–5, 190, 192–3, 200, 209–10

International Humanitarian Law Series 1

Michael J. Kelly, Restoring and Maintaining Order in Complex Peace Operations: The Search for a Legal Framework, 1999 isbn  90 411 1179 4 2 Helen Durham and Timothy L.H. McCormack (eds.), The Changing Face of Conflict and the Efficacy of International Humanitarian Law, 1999 isbn  90 411 1180 8 3 Richard May, David Tolbert, John Hocking, Ken Roberts, Bing Bing Jia, Daryl Mundis and Gabriël Oosthuizen (eds.), Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald, 2001 isbn  90 411 1482 3 4 Elizabeth Chadwick, Traditional Neutrality Revisited: Law, Theory and Case Studies, 2002 isbn  90 411 1787 3 5 Lal Chand Vohrah, Fausto Pocar, Yvonne Featherstone, Olivier Fourmy, Christine Graham, John Hocking and Nicholas Robson (eds.), Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese, 2003 isbn  90 411 1986 8 6 Gideon Boas and William A. Schabas (eds.), International Criminal Law Developments in the Case Law of the ICTY, 2003 isbn  90 411 1987 6 7* Karen Hulme, War Torn Environment: Interpreting the Legal Threshold, 2004 isbn  90 04 13848 x 8 Helen Durham and Tracey Gurd (eds.), Listening to the Silences: Women and War, 2005 isbn  90 04 14365 3 9* ** Marten Zwanenburg, Accountability of Peace Support Operations, 2005 isbn  90 04 14350 5 10 Hirad Abtahi and Gideon Boas (eds.), The Dynamics of International Criminal Law, 2006 isbn  90 04 14587 7 11 Frits Kalshoven, Belligerent Reprisals, 2005 isbn  90 04 14386 6 12 Pablo Antonio Fernández-Sánchez (ed.), The New Challenges of Humanitarian Law in Armed Conflicts: In Honour of Professor Juan Antonio Carrillo-Salcedo, 2005 isbn  90 04 14830 2 13 Ustinia Dolgopol and Judith Gardam (eds.), The Challenge of Conflict: International Law Responds, 2006 ISBN  90 04 14599 0 14* Laura Perna, The Formation of the Treaty Law of Non-International Armed Conflicts, 2006 ISBN  90 04 14924 4 15 Michael Schmitt and Jelena Pejic (eds.), International Law and Armed Conflict: Exploring the Faultlines, Essays in Honour of Yoram Dinstein, 2007 ISBN  978 9004154 28 5 16 Ola Engdahl, Protection of Personnel in Peace Operations: The Role of the ‘Safety Convention’ against the Background of General International Law, 2007 ISBN  978 9004154 66 7 17 Frits Kalshoven, Reflections on the Law of War: Collected Essays, 2007 isbn  978 90 04 15825 2 18 Héctor Olásolo, Unlawful Attacks in Combat Situations: From the ICTY’s Case Law to the Rome Statute, 2007 isbn  978 90 04 15466 7 19 José Doria, Hans-Peter Gasser and M. Cherif Bassiouni (eds.), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko, 2008 isbn  978 90 04 16308 9 20 David A. Blumenthal and Timothy L.H. McCormack (eds.), The Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance?, 2008 isbn  978 90 04 15691 3 21 Omar Abdulle Alasow, Violations of the Rules Applicable in Non-International Armed Conflicts and Their Possible Causes: The Case of Somalia, 2008 isbn  978 90 04 16475 8 22 Ola Engdahl and Pål Wrange (eds.), Law at War: The Law as it Was and the Law as it Should Be – Liber Amicorum Ove Bring, 2008 isbn  978 90 04 17016 2 23 Pablo Antonio Fernández-Sánchez (ed.), International Legal Dimension of  Terrorism, 2009 isbn  978 90 04 17053 7 24 Rob McLaughlin, United Nations Naval Peace Operations in the Territorial Sea, 2009 isbn  978 90 04 17479 5 25 Ian Henderson, The Contemporary Law of Targeting, 2009 isbn  978 90 04 17480 1 26 Cecilia M. Bailliet (ed.), Security: A Multidisciplinary Normative Approach, 2009 isbn  978 90 04 17296 8 27 Kristen Eichensehr and W. Michael Reisman (eds.), Stopping Wars and Making Peace: Studies in International Intervention, 2009 isbn  978 90 04 17855 7 28 Noelle Higgins, Regulating the Use of Force in Wars of National Liberation – The Need for a New Regime: A Study of the South Moluccas and Aceh, 2009 isbn  978 90 04 17287 6 * **

Winner of the ASIL Francis Lieber Prize. Winner of the 2006 Paul Reuter Prize.