Legal Normativity in the Resolution of Internal Armed Conflict

By Ozcelik, Asli | Melbourne Journal of International Law, June 2017 | Go to article overview

Legal Normativity in the Resolution of Internal Armed Conflict


Ozcelik, Asli, Melbourne Journal of International Law


LEGAL NORMATIVITY IN THE RESOLUTION OF INTERNAL ARMED CONFLICT BY PHILIPP KASTNER (CAMBRIDGE UNIVERSITY PRESS, 2015) 230 PAGES. PRICE GBP 72.00 (HARDCOVER) ISBN 9781107107564.

Negotiated transitions from armed conflict to peace ever increasingly attract the attention of international actors, including international law scholars. With the ongoing peace processes in Colombia, the Middle East (Israel-Palestine), Myanmar, the Philippines, South Sudan, Syria, Ukraine, Yemen and others, the topic is never absent from the news agenda and references to international law, values of the international community and requirements of international justice abound. Such references are made in relation to various issues, ranging from the setting of the peace table to the substantive components of peace agreements. In Syria, for instance, certain armed groups have been disqualified from a new round of peace talks initiated by Russia, Iran and Turkey, as they have been classified as terrorist groups. In Colombia, in addition to the unsurprisingly heated discussion about the compliance of the peace agreement between the government and the Revolutionary Armed Forces of Colombia--People's Army ('FARC') with the requirements of transitional justice, even the rather formalistic question of the legal status of the peace agreement led to intense debates among the public, as well as in legal circles. The United Nations and several other international actors have called for local ownership, inclusivity and participation of women, all of which are deemed to reflect international standards or values, in at least some of these peace processes.

As part of its attempts to facilitate the practice of internationalised peacemaking, a new and comprehensive peace agreement database, Language of Peace, has been recently launched at the UN. (1) The main aim is to enable the negotiating parties and mediators involved in peace processes around the world to draw lessons from previous peace agreements. Yet, there is also a theoretical aspect to the project, exploring and potentially developing the congruence between the practice of peacemaking and international law. (2)

This legal-normative approach to peacemaking now has a decade-long history in international law, which was developed in a comprehensive manner for the first time in Christine Bell's seminal study on peace agreements, On the Law of Peace: Peace Agreements and the Lex Pacificatoria. (3) The past decade saw, in surprisingly few numbers though, legal studies which have dealt with the issues of the legal status of peace agreements, the theory of the relationship between peacemaking and international law and the legality of certain substantive components of peace agreements. Except for the studies on the inclusion of women in peace negotiations, the emphasis has predominantly been on the external features of peacemaking and the contents of the resultant peace agreements.

Philipp Kastner's Legal Normativity in the Resolution of Internal Armed Conflict takes a different approach and opens the door into a substantive study of the process-related norms of peacemaking. (4) Instead of an outcome-based focus in practice and scholarship, which is often accompanied by a perception of law as a prescriptive and monolithic body of rules, Kastner advocates an emancipatory potential of law in peacemaking through processual norms that would facilitate the conclusion of an agreement and contribute to 'procedural justice'.

The notion of 'procedural justice' gains special significance in the resolution of internal armed conflict. In the introductory chapter 1, Kastner explores the distinctive features of the latter as they have evolved in the post-Cold War era. As opposed to interstate peacemaking, peace processes following internal armed conflicts present challenges to traditional understandings of the role of law in conflict resolution due to the mixture of state and non-state parties involved, the transitional yet constitutional character of the peace settlements and the internationalisation of peacemaking through the involvement of external actors. …

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