Former UK Foreign Secretary Douglas - now Lord - Hurd develops Karl Mackie's comments on the rise of mediation in settling commercial and civil law disputes.  Can the same process be applied to political and diplomatic conflicts?

 

You've just listened to Karl. It's a remarkable story, which he's told very modestly. I think without breaking the rules I could say that more than one of the actual cases he cited were actually mediated by himself. 

It's a remarkable story crammed, as he said, into a short period of time. It's a quiet revolution, perhaps a little too quiet. It has to be quiet while it's going on, in each particular case, but I think it would be a good thing if all of us actually hauled it on board and talked a bit more about it, because as he rightly said, the principles involved can spread into areas where they're still not applied.

And I'm going to try and do that in the field where I've spent most of my life, as a diplomat, as a Minister, and later as the chairman of CEDR (the Centre for Effective Dispute Resolution), which is the whole field of war and peace.

Assumptions
I'm going to say some things that people here will disagree with but then that's perhaps a help to discussion later. I'm going to make some assumptions which some of you may question. I'm going to assume that everyone in this room, even the youngest, will live in a world of nearly 200 nation states, and that you will not therefore see a sort of world authority which will sort these matters out [simply] because it has that authority.

I'm going on to assume that because there are these nation states, there will be continued potential for conflict, conflict of two kinds: between the states and within the states, of a kind that creates the call for intervention from outside. Therefore, the search for settlements is not something academic, it is something real. And there will not be a time - there certainly isn't a time at the moment - when the world is without potentially disastrous disputes, between or within states. These are my assumptions. 

Now we've just lived through a century, the twentieth century, where one way of settling these disputes became dominant. They can either be settled by the use of power - and I'm thinking, when I say power, overwhelmingly of military power- or they can be settled by discussion in accordance with certain rules.

Military solutions 
In the twentieth century, the power-based, the military power-based solution wasn't exactly in fashion, but it's what happened. The two World Wars, Korea, on a lesser scale the Falklands, the Gulf War (when I was Foreign Secretary) - these were all wars between states which were settled by force, with the death of professional servicemen and, in every case and inevitably, of wholly innocent civilians. We will never devise, contrary to what commentators and politicians sometimes imply, we will never devise a form of warfare which does not involve the death of considerable numbers of completely innocent people, people not professionally involved in warfare.

And we have also had, towards the end of the twentieth century, wars within states - Bosnia, Kosovo, Sierra Leone - which brought about, which resulted in intervention, including armed intervention, from outside. The second type of conflict.

Now all of those twentieth century wars were settled by force. And towards the end (this didn't apply in the two smaller ones where Britain was a prime mover, the Falklands and Sierra Leone), but in all the others, the overwhelming force was exercised by a superpower, the United States of America, which got into the position as it is in today where it has a capacity to deploy a military power for the settlement of disputes by force, which is unmatched by anybody else.

There was one exception, Vietnam, where the superpower lost the war, but that became, although it was completely traumatic at the time, it has become rather lost in the process of learning from experience.

A different kind of war 
Now we have, in the Iraq war, something which is different in our new century, in the twenty-first century. The Iraq war is different in as much as it partook of both kinds of resistance. One of the main arguments for it depended on it being a war between states. It was argued that this one state, this brutal dictatorship, constituted a menace to everybody else, and that was a reason why we were entitled to attack it, in self-defence, pre-emptive self-defence.

But a second limb of the argument for war was that it was our duty to rescue the people of Iraq from this brutal dictator. So it had the characteristics in the argument of both kinds of war: the war between states and the war justified by what was happening within a state. And there again, the superpower exercised, with those who joined it, this amazing preponderance of military power.

But it hasn't worked. We're now in 2007 and what is crucial I think to all of us who are interested in the handling and settlement of conflict is just to analyse a little bit what the consequences of that military failure to win implies for the future.

Reasons for failure 
You can argue that this is because the United States, the superpower, has reached a sort of peak, as say Britain did in 1900 when we went to war with the Boers, and there are certain parallels there in world reactions and so on. We won that war but, looking back, it is regarded as one of the turning points where our position as the pre-eminent power, primarily a naval power, but the pre-eminent power, began to decline. The Kaiser built the dreadnoughts etc, and in terms of military superiority it was all downhill from that time forward.

You can argue, and it may be true, that this is what has actually happened again. It's not necessarily a good thing to go back to having several powers all equipped to do battle with each other with some hope of success, which is of course what we got into before World War One. It's not necessarily a good thing but it may be what's happening.

Or it may be that the ability of military power, in whoever's hands, to settle disputes, is itself on the way out, regardless of whose power it is. Military power, hard power may no longer be effective for the settlement of disputes.

And it's because I think there is quite a feeling around that the second explanation is right, that we see a different way of handling, even by the superpower, even by the United States, than we would have say seven or eight years ago.

We see it in the settlement with North Korea. We see it, I believe, though I may be wrong about this, in the way the Iran nuclear question is being handled. We see it, and again people here may think this is a bad thing, we see it in the very tentative handling of the atrocities and disaster in Darfur. We see a reluctance to believe that the use of force is actually going to be an effective settler of these disputes.

Now if that second explanation is true - that regardless of who has the power, military power is not going to be regarded as particularly effective in our century for the settlement of disputes - then Karl Mackie's questions become relevant. How do we transfer into this sphere the kind of techniques, skills and attitudes which he's been describing?

Building institutions
Well, there are two ways. One is to try and build up international institutions. Just as in the commercial field, you can go for arbitration. Arbitration, as everybody here knows, is different from mediation. In arbitration, you agree to be ruled, you agree to abide by what the arbitrator decides. With mediation, on the other hand, you don't; you're not bound in advance. You agree to seek a solution, you ask a mediator to help you achieve a solution, but at the end of the day you can turn it down. And that of course is a crucial distinction, and it applies in international affairs.

On the question of international institutions, you may feel that what I'm going to say is too pessimistic but it's born of experience working at the UN as a young man, and more recently as Foreign Secretary.

We have had several efforts in the last two hundred years. We had the efforts after the Napoleonic Wars (and I'm about to start a book about this so I'm particularly researching it), the efforts of Castlereagh, the concept of Europe etc, brushed aside by Bismarck, who destroyed any of that.  We went right back to the balance of power which collapsed in slaughter in 1914.

After 1919, you had the most idealistic attempt ever at international institutions - Woodrow Wilson, the League of Nations, rules without power. He thought power was no longer needed; if you had the right institutions, the right democratic institutions, rules were sufficient. This attempt collapsed, destroyed by fascism. 

And then you had a brilliant period between 1944 and 1956. I would say this was a brilliant twelve years of institution-building, led by the United States - Bretton Woods on the financial side, right through all the UN creations, NATO and Europe's Treaty of Rome. I would say the great period in the history of the world of actual institution-building, led by the superpower.

But that process and those institutions founded in those twelve years are rusty. They creak, they don't any longer reflect the actual power structures in the world. They don't answer all the questions - for example the questions about humanitarian intervention. There are not answers there. And efforts, even by a very good, hard-working, dedicated man like Kofi Annan, the last Secretary General of the UN, efforts to repair the institutions, to get the rust off them, to shine them up, to make them effective again, are very hard work and have been pretty fruitless.

Reforming the UN Security Council, for example; the structure is such that it is almost impossible to do. Behind every candidate for permanent membership of the Security Council is somebody semaphoring 'Anyone but him!' That's the fact of the matter and why it hasn't happened.

Therefore, this process of building the international institutions so that they become dominant, effective arbiters, is actually better advanced in trade than in other matters, and is still not adequate for solving the problems of the world.

Alternatives 
So you come back therefore to dealings, mediations, diplomacy between states, and some of that would be within international institutions, the UN, the EU and so on. But it is actually these kind of processes which CEDR (the Centre for Effective Dispute Resolution) has helped to pioneer in the spheres that Karl was talking about.

And I believe, as he was indicating, there is a great deal of scope for practitioners in the field of diplomacy (of whom I was once one) and the practitioners in the field of commercial and civil mediation, to learn and get together and become acquainted with each other's techniques and practices.

Karl mentioned one of the things that is crucial, which is the mindset.

Clausewitz wrote that war was a continuation of diplomacy by other means. A lot of people practise diplomacy as if diplomacy was a continuation of war by other means. They're concerned simply to go bang-bang-bang to establish their case; and one symptom of that is the belief that if you actually talk to someone, you're doing them a favour, that it's actually a concession to sit down with somebody and listen to them.

Well, I'm sure that in the trade union field and certainly in the diplomatic field, that's a pretty lethal assumption. It knocks most hopes of mediation on the head, and yet we see it, for example in the attitude, not of the whole American administration but partly, in the idea that they should sit down with Iran. Sitting down with somebody is not meaning that you agree with them or even that you're going to compromise with them, but it does mean a willingness to start the process. That's one example of a mindset. 

Points of tension
I would like to just raise two points of tension. And I'm not trying to persuade you, I just want to throw them to you.

One is the question of transparency. Transparency is a buzzword in this Palace of Westminster. Ministers use it all the time, and we're all in favour of transparency. But actually, just as in the kind of mediation that Karl is conducting, you need an agreement of secrecy if you're to get anywhere; so I'm quite sure that in matters of war and peace you do need a degree of secrecy. Open covenants, openly arrived at, was what Woodrow Wilson argued for in 1919 in that idealistic moment. I'm all in favour of open covenants, I think secret treaties did a lot more harm than good, but openly arrived at I think is not possible.

I believe the nearest approach to settling the Palestine question came in the secret discussions in Oslo. I believe that if the Sri Lanka civil war is settled, it may well be again because of what the Norwegians have done in the way of secret diplomacy. And I think we have to accept that transparency is fine to insist on for the results but for the process a degree of secrecy is needed.

My last tension is actually more controversial than that.

I was in Westminster Abbey yesterday for the Commonwealth celebration and the Dean of Westminster read out a series of affirmations to which we all affirmed. One of them was 'We affirm our belief in justice for everyone and peace between peoples and nations.'

Peace and justice 
Now the words of the Dean are the words which the Prime Minister and people use all the time, as if peace and justice, justice and peace, were brothers, absolutely together.

I worry about that, out of my experience, Ladies and Gentlemen, and I just want to throw that difficulty at you.

Take Darfur. No one, for the reasons I've given, is actually proposing to lead an expeditionary force to throw the government of Sudan's forces out of Sudan. No one is. Therefore, progress depends upon persuading, pressing, inducing, putting pressure on that government to reach a new peace agreement, which this time everyone will sign, and letting humanitarian work go ahead, and to provide eventually for a democratic Sudan. But they have to be persuaded.

If at the same time as you're trying to persuade them, the court issues a warrant for the prosecution of two of the people you're trying to persuade, what is the consequence of that?  Is it, as the court hopes, and as the idealists of international justice believe, that it will deter those people and others like them from doing horrible things? Or will it, as in my experience it will, actually make it much less likely that there will be an agreement, and that many more people will die? The same is true of the civil war in Uganda. 

What would have happened if Mandela had said I can't really do business with the white South Africans unless it is made absolutely clear that everyone who ever did anything wrong under the apartheid regime is going to be prosecuted for what they did wrong? But of course he didn't. Instead, he set up the Truth and Reconciliation Commission.

What would have happened if Mo Mowlam, when Secretary of State for Northern Ireland, had said we can't have any more peace process unless and until the people who have been guilty, or are alleged to have been guilty of horrible atrocities, are brought to justice? There would have been no peace process. People would still be killing each other in Northern Ireland.

This is a hard saying for those who believe that justice and peace are simply two sides of the same coin. Actually, quite often I believe there is a tension. And I don't think there is an automatic example, an automatic result, or automatic preference of one to the other. I think you just have to judge, and people concerned have to judge on each occasion. But don't let's gallop away with thinking that this is not an issue, because it is.

An expanding agenda
Of course, the whole scope for discussion and mediation is increasing the whole time. There are still things which in the nineteenth century were discussed all the time, like questions of peace and war. But now diplomats are expected to discuss energy matters, climate change, trade, world poverty and so on, and quite rightly. So the whole of the theatre and the stage is so much bigger, and the number of people involved, the capacity for disaster and the capacity for good, have both greatly increased.

And therefore this whole issue, how you bring people together, how you reach settlements in this world of 200 nation-states with faulty and weak international institutions, comes back to the main issue of how human beings actually sit in a room together and, in a day or a week or a couple of months, actually reach agreement.

The study of how you do that is a very practical, definite, professional matter, and it's one I think to which we all need to pay a lot more attention.

This is a slightly edited version of a talk given on 13 March 2007 at Westminster to the All-Party Parliamentary Group on Conflict Issues and transcribed by Wendy Conway Lamb.