Legalism and creativity in peacemaking

The European Union has long emphasized international law when engaging
in peace processes. Without a doubt, international law is a critical means in shaping international
relations and global community. But is it the most suitable one to settle conflict?

But is it the most suitable one to settle conflict? Conflict resolution is a process of mutual adjustment,
more complex than following a legal script and more dynamic than concepts thought out beforehand.
If there are to be non-zero-sum outcomes, relationship building and creative solutions must be more paramount
concerns on the political agenda.

A legalist approach to peacemaking

When drafting the Treaty on European Union, twenty-seven European states reaffirmed the values
underlying their union, namely respect for human dignity and human rights, freedom, democracy,
equality, and the rule of law. Their union, they agreed, should promote these values and peace, within
and beyond their borders. It is, thus, no wonder that the European Union (EU) has acted not only as an
economic arrangement but become involved in conflict regions. Its institutions have voiced concerns
politically, condemned actions counter to their values, and also invested in peace-keeping and conflict
prevention.

EU guidelines for external action and other pertinent documents make numerous references to
international law. In their current Global Strategy, for example, the EU reaffirms their commitment to a
‘global order based on international law’ and with the United Nations (UN) at its core, which they frame
as the only guarantee for peace and security. International law, however, is no consistent and coherent
framework but rather a compilation of treaties, resolutions, international customs, generally recognized
principles, judicial decisions, and academic opinions.

While international law is often universal in content—though not in application—, international
organizations have also used the instrument to render country-specific recommendations in conflict
situations in the Middle East and elsewhere. The most prominent example of this practice may be the
countless resolutions of the UN General Assembly, the UN Security Council, and the UN Human Rights
Council on Israel and Palestine. Often, peace processes are assumed to must occur in the narrow space
left. That is, however, where the commitment to international law turns into blind legalism.

Those resolutions merely reflect the majority opinion of the respective body at a given time. So was UN
General Assembly Resolution 181 that, in 1947, called for the partition of Palestine. And so were many
others that followed. Nevertheless, a two-state solution continues to be presented as “the only way” or
the only realistic and sustainable way” to end the protracted conflict in the region. A two-state
solution might be the most promising option within the current context, many argue. Nevertheless, the
indistinction between sources of international law—meaning the full inclusion of dispensable
commitments—merely narrows the array of negotiation opportunities for the sake of legalism.

The nature of conflict resolution

As was mentioned initially, conflict resolution is a complex and dynamic process of mutual adjustment.
For conflicts to be resolved sustainably, parties must believe that their joint gains could exceed
individual ones; thinking in potential non-zero-sum outcomes. Only then will they come together to
actively pursue approaches that maximize their collective outcome from the conflict. For that kind of
integrative conflict resolution, relationship building, trust, and integrity are essential.

Despite that high note, actors or heirs of violent conflict may have to go such a long way from mutual
distrust or hatred, conflicting narratives, a history of separation, and expectations of retributive justice
to arrive at the portrayed place of mutual gains and restoration, that many would deem even the
attempt illusionary. I do not. Especially in situations where matters in dispute are indivisible, a
distributive approach will always leave one side deprived of what they had sought most. The problem
of indivisibility is endemic to many conflicts in the Middle East and elsewhere, particularly when sacred
spaces become matters of dispute.

This post already stated that peace talks only take place if the involved parties anticipate a potential
joined gain, even if that gain is merely to avert developments detrimental to both parties’ interests.
However, peace talks, if taken up, are at constant threat of discontinuation. Negotiation theory provides
useful insights into how to keep the dialogue going even if interests appear to be clashing. One wellsupported
advice is to keep interference of third parties as small as possible and focus on relationship
building, trust, and free flow of information instead. Another is that the more numerous the negotiation
items and the alternative solutions, the more likely is an integrative approach to succeed.

That is both where the narrowing of legalism is most harmful, and creativity is most needed. Instead of
accepting pre-defined solutions from third parties, conflict parties are challenged to break down
matters of conflict into more manageable items, surface their needs behind stated positions, generate
innovative ideas and alternative solutions, and facilitate open communication. Legalism insists on
decisions of the past and is, thus, backwards-looking. Creativity, on the other hand, thrives on the very
freedom of mind that legalism undermines. When closed categories such as ‘yes’ or ‘no’ and ‘yours’ or
‘mine’ hit their limits in peacemaking, and integrative approach might yet rebuild burnt bridges.

Conclusions

Legalism and creativity often obstruct one another in negotiating joint outcomes. Creativity and
innovative ideas are, however, critical to achieving non-zero-sum outcomes in conflict resolution. It
might be time for third parties such as the EU to rethink their involvement in conflict regions and
reformulate their recommendations. They should move away from pre-defined solutions derived from
international law and facilitate conflict parties to create something new together; something fit for the
present and the future.

Recommendations

• Distinguish between different sources of international law rather than using an all-inclusive
umbrella term when demanding that peace processes comply with the same. What provisions
do you want conflict parties to be mindful of?
• Encourage creative thinking and innovative ideas in peace processes. The achievement of nonzero-
sum outcomes for populations in conflict regions is more important than your historical
consistency.
• Be mindful of your language and the way you present recommendations. Are you narrowing
down to ‘yes’, ‘no’, and ‘only options’ or are you opening space for multiple solutions?
• Facilitate relationship building between conflict parties. What can you do to promote people of
integrity on both sides who may learn to trust each other?

About the author

Maria Christina Erhard is a graphic design freelancer and graduate student of global studies in Graz. She
studied management in Lund and Malibu, and social work in Graz and Newcastle Upon Tyne. She has
gained work experience in a community-based project of a Philippine NGO, and the marketing
department of a global technology Group. For her master’s thesis on the branding of social work in
employee assistance, she immersed herself in employee welfare and the challenges of her colleagues
in the field.

Share on facebook
Share on twitter
Share on pinterest
Share on telegram
Share on whatsapp
Share on pocket

More from Shabka Journal