How Does International Law Condition Responses to Conflict and Negotiation?
| Date | 01 May 2016 |
| DOI | http://doi.org/10.1111/1758-5899.12335 |
| Author | Aoife O'Donoghue |
| Published date | 01 May 2016 |
How Does International Law Condition
Responses to Conflict and Negotiation?
Aoife O’Donoghue
Durham Law School
Abstract
This article explores the role law plays in defining conflict and its consequences. Two elements of law’s categorisations are
critical; first law’s cataloguing of activities fixing actions into particular classifications and second law’s choosing of temporal
points from which to analyse conflict, looking both forward and backward at events. The article uses two case studies to
demonstrate these two features; Rwanda and Ukraine. Both examples, one historical the other contemporary, are replete with
examples of law’s categorisations of events and temporal points while demonstrating the tremendous impact that these
choices have upon our understanding of how negotiations ought to proceed. This article does not call for a withdrawal of law
from these situations but rather cognisance that heavy reliance on law can serve to mask both events and actors critical to
successful negotiation and parties must bare this in mind when dealing with conflict.
Policy Implications
•The consequences of law’s expansion into all areas of conflict and negotiation ought to be reconsidered.
•Reliance on law’s account of events may not necessarily serve the end of achieving a negotiated end to conflict.
•Decision-makers should seek to question what law’s narrative omits through its classifications.
Introduction
The enterprise of producing ‘good’lawyers and indeed good
international lawyers revolves around investing students with
the ability to evaluate events according to a pre-ordained set
of tools. Almost by instinct lawyers, no matter what their legal
tradition, understand events through a consistent frame. Law-
yers, both academic and practitioner, categorise, define and
set forth advice based on concepts of reasonableness, propor-
tionality, necessity and most critically, a law-based categorisa-
tion of events even in the most political of contexts. Of
course, legal and political theory from positivist, critical or cos-
mopolitanism perspectives have explored the many inherent
contradictions involved in this form of reasoning (Kennedy,
1987; Marks, 2006; Posner, 2009). Nonetheless this is the frame
students are taught to engage with, no matter what the legal
genre. Arguably this is never more apparent than when law-
yers set about considering violence and conflict as law seeks
to look both backward to understand causes and identify cul-
prits and forward to offer resolution and pathways to peace.
This article considers how individual states and international
organisations respond to on-going violence or conflict when
viewed through the prism of law. In particular, this article
questions the decision points at which law looks back and for-
ward as well as the impact this has on our understanding of
conflict and negotiation. Picking the starting point matters as
it is from here we adjudge claims, both legal and political, and
thus make a variety of demands upon negotiation.
The article explores the extent to which categorisations
and temporal points are used to depict events leading to
negotiation and asks whether strict legal approaches result
in an entrenchment of oppositional narratives. In examining
two conflicts, Rwanda and Uganda, the article seeks to
demonstrate the variety of categorisations used by law to
differentiate between events including what is and what is
not a conflict, which actors are involved and how and why
conflicts begin and end. These two examples demonstrate
that current international legal practice in choosing
temporal moments and categorisations of events can be
detrimental to uncovering hidden narratives and lead to the
hampering of processes of political negotiation. The illogical-
ity of some international legal rules is obvious, though their
underlying rationales are also important to law’s operative
foundation. Certainty in law, and particularly international
law, empowers some to predict what law entitles and
enables actors to do. Yet, Ukraine and Rwanda epitomise
how such claims can be entirely predicated upon choosing
one moment as of critical import to law.
Law’s categorisation
An initial legal ordering between the initial use of force and
international humanitarian law leads to a particular under-
standing of why and how conflict occurs but other categori-
sations are equally relevant including; how violence is
defined, determining when violence becomes conflict and
©2016 University of Durham and John Wiley & Sons, Ltd. Global Policy (2016) 7:2 doi: 10.1111/1758-5899.12335
Global Policy Volume 7 . Issue 2 . May 2016
272
Special Section Article
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