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UN Mediation Guidance is a web-application, which contains a library of key UN guidance products for mediators and mediation support actors. This app is part of the United Nations’ efforts to build mediation capacity and to support all mediators in the peaceful resolution of conflicts and disputes. Currently, the app includes the United Nations Guidance for Effective Mediation. It will be updated to offer new guidance documents as they become available.
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UNITED NATIONS
Effective Mediation
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Effective Mediation
Introduction
1. The Charter of the United Nations identifies mediation as an important means for the peaceful settlement of disputes and conflicts, and it has proven to be an effective instrument to address both inter-State and intra-State conflicts. The United Nations Handbook on the Peaceful Settlement of Disputes between States (1992) further developed understanding of mediation of disputes between States and remains a useful resource.

2. The report of the Secretary-General on Enhancing mediation and its support activities (S/2009/189) examined the mediation challenges faced by the United Nations and its partners and outlined some considerations for strengthening mediation processes. Mediation actors have continued to adapt their approaches and capacities to meet the changing nature of conflict, particularly in recognition of intra-State conflicts as a threat to international and regional peace and security. General Assembly resolution 65/283, entitled “Strengthening the role of mediation in the peaceful settlement of disputes, conflict prevention and resolution”, which was adopted by consensus, recognized the increased use of mediation, reflected on current challenges facing the international community in such mediation efforts, and called on key actors to develop their mediation capacities. The General Assembly also requested the Secretary-General, in consultation with Member States and other relevant actors, to develop guidance for more effective mediation, taking into account, inter alia, lessons learned from past and ongoing mediation processes.

3. Prepared in response to the request of the General Assembly and in conformity with the Charter of the United Nations, the Guidance aims to inform the design and management of mediation processes. It is intended as a resource for mediators, States and other actors supporting mediation efforts but is also relevant for conflict parties, civil society and other stakeholders. It emphasizes the need for a good understanding of mediation and an appreciation of both its potential and limits as a means for conflict prevention, management and resolution.
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About
4. The Guidance draws on the experience of the international community. Inputs from Member States, the United Nations system, regional, subregional and other international organizations, non-governmental organizations (NGOs), women’s groups, religious leaders, the academic community, as well as mediators and mediation specialists, informed its development.

5. The Guidance is not an exhaustive reflection on mediation, nor does it seek to address each of the specific needs or approaches of different mediators, be they States, multilateral, regional or subregional organizations, NGOs or national mediators. Rather, the Guidance aims to address several major issues, in particular the need for a more professional approach to mediation; the requirement for coordination, coherence and complementarity in a field that is becoming increasingly crowded; and the need for mediation efforts to be more inclusive.

6. To address these issues, the Guidance identifies a number of key fundamentals that should be considered in a mediation effort: preparedness; consent; impartiality; inclusivity; national ownership; international law and normative frameworks; coherence, coordination and complementarity of the mediation effort; and quality peace agreements. The Guidance explains each fundamental, outlines some potential challenges and dilemmas facing mediators and offers some guidance. Throughout, the Guidance recognizes the complexity of the environment within which mediators work and that in many instances mediators confront problems and difficulties they may not be able to resolve. Each situation must be approached differently, and ultimately the political will of the conflict parties is the determining factor for success. Nevertheless, careful attention to these fundamentals can increase the prospects for a successful process, minimize the potential for mediator error and help generate an environment more conducive to mediation.
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Mediation Logic
7. Mediation often exists alongside facilitation, good offices and dialogue efforts. Mediation, however, has its own logic and approach, aspects of which may be relevant to other approaches to the peaceful settlement of disputes.

8. Mediation is a process whereby a third party assists two or more parties, with their consent, to prevent, manage or resolve a conflict by helping them to develop mutually acceptable agreements. The premise of mediation is that in the right environment, conflict parties can improve their relationships and move towards cooperation. Mediation outcomes can be limited in scope, dealing with a specific issue in order to contain or manage a conflict, or can tackle a broad range of issues in a comprehensive peace agreement.

9. Mediation is a voluntary endeavour in which the consent of the parties is critical for a viable process and a durable outcome. The role of the mediator is influenced by the nature of the relationship with the parties: mediators usually have significant room to make procedural proposals and to manage the process, whereas the scope for substantive proposals varies and can change over time.

10. Rather than being a series of ad hoc diplomatic engagements, mediation is a flexible but structured undertaking. It starts from the moment the mediator engages with the conflict parties and other stakeholders to prepare for a process — and can include informal “talks-about-talks” — and may extend beyond the signing of agreements, even though the function of facilitating the implementation of an agreement may best be performed by others.

11. An effective mediation process responds to the specificity of the conflict. It takes into account the causes and dynamics of the conflict, the positions, interests and coherence of the parties, the needs of the broader society, as well as the regional and international environments.

12. Mediation is a specialized activity. Through a professional approach, mediators and their teams provide a buffer for conflict parties and instil confidence in the process and a belief that a peaceful resolution is achievable. A good mediator promotes exchange through listening and dialogue, engenders a spirit of collaboration through problem solving, ensures that negotiating parties have sufficient knowledge, information and skills to negotiate with confidence and broadens the process to include relevant stakeholders from different segments of a society. Mediators are most successful in assisting negotiating parties to forge agreements when they are well informed, patient, balanced in their approach and discreet.

13. Effective mediation requires a supportive external environment; most conflicts have a strong regional and international dimension. The actions of other States can help to reinforce a mediated solution or detract from it. A mediator needs to withstand external pressures and avoid unrealistic deadlines while also developing the support of partners for the mediation effort. In some circumstances the mediator’s ability to harness incentives or disincentives offered by other actors can be helpful to encourage the parties’ commitment to a peace process.

14. By its very existence, a mediation process has an impact on the balance of power and political calculations within and between different groups. Mediators and the international community, as support actors, need to be sensitive to both the positive and the potentially negative impacts of a mediation process. Mediators need to retain the option either to put their involvement on hold or to withdraw. This may be appropriate if they consider that the parties are pursuing talks in bad faith, if the evolving solution is at odds with international legal obligations, or if other actors are manipulating the process and limiting the mediator’s room for manoeuvre. However, this is a sensitive political decision, which needs to weigh the risks of withdrawing against the value of keeping the parties at the table in a faltering process while exploring alternative means for the peaceful settlement of disputes.

15. Not all conflicts are amenable to mediation. There are some indicators that suggest the potential for effective mediation. First and most importantly, the main conflict parties must be open to trying to negotiate a settlement; second, a mediator must be accepted, credible and well supported; and third, there must be general consensus at the regional and international levels to support the process. When an effective mediation process is hampered, other efforts may be required to contain the conflict or to mitigate the human suffering, but there should be constant efforts to remain engaged so as to identify and seize possible windows of opportunity for mediation in the future.

16. The section below outlines key mediation fundamentals that require consideration for an effective process.
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Preparedness
17. Responsible and credible mediation efforts require good preparation. Preparedness combines the individual knowledge and skills of a mediator with a cohesive team of specialists as well as the necessary political, financial and administrative support from the mediating entity.

18. While not predetermining the outcome, preparedness entails the development of strategies for different phases (such as pre-negotiations, negotiations and implementation), based on comprehensive conflict analysis and stakeholder mapping, including examination of previous mediation initiatives. Since a mediation process is never linear and not all elements can be fully controlled, strategies need to be flexible to respond to the changing context.

19. Preparedness allows the mediator to guide and monitor the mediation process, help strengthen (where necessary) the negotiating capacity of the conflict parties and other stakeholders, assist them in reaching agreements, and galvanize support (including among international actors) for implementation. A well-prepared and supported mediator is able to manage expectations, maintain a sense of urgency while avoiding quick-fix solutions, and effectively respond to opportunities and challenges in the overall process.

Guidance

20. Preparedness is first and foremost the responsibility of States or organizations seeking to play a mediating role. These entities should be ready to:

• Commit resources to respond rapidly and to sustain support for the mediation process, including deployment of personnel on a continuous basis for medium- and long-term engagements.

• Select a competent mediator with the experience, skills, knowledge and cultural sensitivity for the specific conflict situation. The mediator should be considered objective, impartial and authoritative and be a person of integrity. The mediator needs a level of seniority and gravitas commensurate to the conflict context and must be acceptable to the parties. Some disputes require discreet engagement, whereas others need more high-profile initiatives.

• Reinforce the mediator with a team of specialists, particularly experts in the design of mediation processes, country/regional specialists and legal advisers, as well as with logistics, administrative and security support. Thematic experts should be deployed as required.

• Undertake conflict analysis and regular internal assessments of the process in order to make adjustments to the mediation strategies as needed.

• Provide proper preparation, induction and training for mediators and their teams. All team members should understand the gender dimension in their respective areas of expertise.

• Include a balance of men and women on mediation teams. This also sends a positive signal to the parties with regard to the composition of their delegations.
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Impartiality
26. Impartiality is a cornerstone of mediation — if a mediation process is perceived to be biased, this can undermine meaningful progress to resolve the conflict. A mediator should be able to run a balanced process that treats all actors fairly and should not have a material interest in the outcome. This also requires that the mediator is able to talk with all actors relevant to resolving the conflict.

27. Impartiality is not synonymous with neutrality, as a mediator, especially a United Nations mediator, is typically mandated to uphold certain universal principles and values and may need to make them explicitly known to the parties.

Guidance

28. To address the issue of impartiality, mediators should:

• Ensure and seek to demonstrate that the process and the treatment of the parties is fair and balanced, including through an effective communications strategy.

• Be transparent with the conflict parties regarding the laws and norms that guide their involvement.

• Not accept conditions for support from external actors that would affect the impartiality of the process.

• Avoid association with punitive measures against conflict parties by other actors and minimize public criticism of the parties as much as possible, while maintaining frank exchanges in private.

• Handover to another mediator, or mediating entity, if they feel unable to maintain a balanced and impartial approach.
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Inclusivity
29. Inclusivity refers to the extent and manner in which the views and needs of conflict parties and other stakeholders are represented and integrated into the process and outcome of a mediation effort. An inclusive process is more likely to identify and address the root causes of conflict and ensure that the needs of the affected sectors of the population are addressed. Inclusivity also increases the legitimacy and national ownership of the peace agreement and its implementation. In addition, it reduces the likelihood of excluded actors undermining the process. An inclusive process does not imply that all stakeholders participate directly in the formal negotiations, but facilitates interaction between the conflict parties and other stakeholders and creates mechanisms to include all perspectives in the process.

30. It cannot be assumed that conflict parties have legitimacy with, or represent, the wider public. Mediation efforts that involve only armed groups may send the signal that violence is rewarded. In addition to generating resentment within other sectors of society, this could encourage others to take up arms in order to get a place at the negotiating table. Civil society actors can play a critical role in increasing the legitimacy of a peace process and are potentially important allies. Women leaders and women’s groups are often effective in peacemaking at community levels and should therefore be more strongly linked to the high-level mediation process. However, support from civil society and other stakeholders cannot be taken for granted, as some of these actors may have hard-line positions and oppose the mediation.

31. In designing an inclusive process, mediators face a number of challenges. There may be instances in which not all conflict parties want to engage in mediation or have sufficient levels of coherence to negotiate, making only a partial process possible. Arrest warrants issued by the International Criminal Court, sanctions regimes, and national and international counter-terrorism policies also affect the manner in which some conflict parties may be engaged in a mediation process. Mediators need to protect the space for mediation and their ability to engage with all actors while making sure that the process respects the relevant legal limitations.

32. In seeking to broaden the process to other stakeholders, mediators may also face constraints from conflict parties who generally seek to determine who, how and when different actors are brought into the process. In some instances, more exclusive dialogue with conflict parties may be required to move the process forward expeditiously, for example in negotiating ceasefires, especially where parties feel too exposed politically or if their security may be compromised. Mediators need to gauge the comfort levels of conflict parties and convince them of the value of broadening participation. They also have to balance having a transparent process with protecting the confidentiality of the talks.

33. Mediators have to grapple with the potential tension between inclusivity and efficiency. Mediation processes become more complex (and may be overloaded) when the consultation base expands and/or multiple forums are used to engage actors at different levels. In addition, it may be difficult to engage interest groups that are not easily defined or lack clear leadership, for example social movements and youth groups. These kinds of issues put a premium on stakeholder mapping, planning and management of the process.

Guidance

34. Building on a comprehensive mapping of all conflict parties and stakeholders, mediators should:

• Identify the level of inclusivity needed for the mediation to start and required for a durable peace that addresses the needs of all affected by the conflict.

• Communicate with any party or actor necessary to address the conflict, with the knowledge of the other negotiating parties.

• Limit contacts with actors that have been indicted by the International Criminal Court to what is necessary for the mediation process.

•Promote understanding among conflict parties of the value of broader participation and minimize preconditions for participation in the process.

• Ensure systematic and structured consultation with women’s groups early in the process to allow for meaningful participation, with specific efforts to include them in the mediation process.

• Encourage conflict parties to include women in their delegations.

• Identify partners to help build the capacity of civil society and other relevant stakeholders to engage effectively.

• Develop mechanisms to broaden participation in the process, and to engage and include the different perspectives within civil society and other stakeholders, throughout the various phases of the peace process.

• Use different forms of media, including social media and opinion polls, to expand participation, inform and engage the public and identify potential points of contention.
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National Ownership
35. National ownership implies that conflict parties and the broader society commit to the mediation process, agreements and their implementation. This is of critical importance because it is the communities who have suffered the major impact of the conflict, the conflict parties, who have to make the decision to stop the fighting, and society as a whole that must work towards a peaceful future. While solutions cannot be imposed, mediators can be helpful in generating ideas to resolve conflict issues.

36. It is challenging, however, for an external mediator to identify whose ownership is necessary and to facilitate ownership of the process beyond people in positions of power. Cultivating and exercising ownership may require strengthening the negotiating capabilities of one or more of the conflict parties, as well as civil society and other stakeholders, to enable their effective participation in the process and ability to engage on often complex issues. The extent to which the process is inclusive has a direct impact on the depth of ownership.

37. National ownership requires adapting mediation processes to local cultures and norms while also taking into account international law and normative frameworks.

Guidance

38. In promoting national ownership, mediators should:

• Consult closely with the conflict parties on the design of the mediation process.

• Inform civil society and other stakeholders about developments in the peace process (respecting confidentiality, where required) and create opportunities and support for them to engage on procedure and substance.

• Guide conflict parties and help them generate ideas for discussion, ensuring they can claim credit for agreements reached.

•Identify which conflict parties may need support to strengthen their negotiation capacity and facilitate access to capacity-building support.

• Encourage and enable conflict parties to inform and consult with their constituencies, including the rank and file, during the mediation process.

• Be aware of the specific cultural approaches to negotiation and communication and leverage those approaches to the greatest advantage of the process; liaise with and ensure support for local peacemakers and, wherever appropriate, draw on indigenous forms of conflict management and dispute resolution.

• Protect the mediation process from the undue influence of other external actors, especially with regard to unrealistic external deadlines or incompatible agendas.

• Sensitize conflict parties to the need to balance national ownership with the importance of marshalling international support for the implementation of an agreement.

• Design a communications strategy to manage expectations, in terms of both what, and the speed at which, the process can deliver.
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International law and normative frameworks
39. Mediation takes place within normative and legal frameworks, which may have different implications for different mediators. Mediators conduct their work on the basis of the mandates they receive from their appointing entity and within the parameters set by the entity’s rules and regulations. Thus, United Nations mediators work within the framework of the Charter of the United Nations, relevant Security Council and General Assembly resolutions and the Organization’s rules and regulations.

40. Mediators also conduct their work within the framework constituted by the rules of international law that govern the given situation, most prominently global and regional conventions, international humanitarian, human rights and refugee laws and international criminal law, including, where applicable, the Rome Statute of the International Criminal Court. In addition to binding legal obligations, normative expectations impact on the mediation process, for example regarding justice, truth and reconciliation; the inclusion of civil society; and the empowerment and participation of women in the process.

41. Consistency with international law and norms contributes to reinforcing the legitimacy of a process and the durability of a peace agreement. It also helps to marshal international support for implementation. However, balancing the demands of conflict parties with the normative and legal frameworks can be a complex process. Mediators frequently have to grapple with the urgency of ending violence in contexts where there is also a clear need to address human rights violations and other international crimes. The applicable law may not be the same for all conflict parties, or their understanding of that law may vary. In addition, while there is a growing international consensus on some norms, not all norms are equally applied in different national contexts and there can be different interpretations within a given society.

Guidance

42. Mediators must be briefed and familiar with the applicable international law and normative frameworks and should:

• Be clear and convey their mandates and the legal parameters applicable to their work.

• Ensure that the parties understand the demands and limits of applicable conventions and international laws.

• Ensure that communications with the conflict parties and other stakeholders on legal matters and normative expectations are consistent; this is particularly important in instances of co-led or joint mediations.

• Be clear that they cannot endorse peace agreements that provide for amnesties for genocide, crimes against humanity, war crimes or gross violations of human rights, including sexual and gender-based violence; amnesties for other crimes and for political offences, such as treason or rebellion, may be considered — and are often encouraged — in situations of non-international armed conflict.

• Explore with the conflict parties and other stakeholders the timing and sequencing of judicial and non-judicial approaches to address crimes committed during the conflict.

• Balance the need to adhere to international norms without overtly taking on an advocacy role; facilitate access for partners and civil society actors to engage directly with conflict parties and other stakeholders regarding applicable norms.
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Coherence, coordination and complementarity of the mediation effort
43. The increasing number and range of actors involved in mediation makes coherence, coordination and complementarity of mediation efforts both essential and challenging. Coherence encompasses agreed and/or coordinated approaches, while complementarity refers to the need for a clear division of labour based on comparative advantage among mediation actors operating at the different levels.

44. The actions of the international community, including the United Nations, regional, subregional and other organizations, States, NGOs, national and local actors, all have an impact on mediation, even if their engagement in a given mediation process may vary. This diversity can be an asset, as each actor can make unique contributions at different stages of a mediation process. But multiplicity also risks actors working at cross-purposes and competing with each other. Different decision-making bodies, political cultures, legal and normative frameworks, levels of resources and financial and administrative rules and procedures will make coherence, coordination and complementarity difficult.

45. Joint or co-led mediation initiatives have been used as one way to promote coordination among regional and international organizations. While they have served important political purposes, the results have been mixed. It is generally preferable to have a lead mediator from a single entity based on a strategic partnership and coordination with other mediating entities. The lead has to be established on a case-by-case basis.

46. Coherent support for the mediation effort from international actors and consistent messaging to the conflict parties are other critical aspects in creating an environment conducive for mediation. Interested States and others may not be directly involved in the mediation but still have an impact on the process. Groups of friends and international contact groups, when aligned with the goals of the mediation effort, will often be helpful.

Guidance

47. Mediating organizations, States and others should consider the following guidance to promote greater coherence, coordination and complementarity in their support and engagement in mediation efforts:

• Mediation processes should have a lead mediator, preferably from a single entity. Mediation initiatives with two or more entities should be based on a coherent mandate from the relevant entities with a single lead mediator. This provides clarity, minimizes forum shopping by the conflict parties and facilitates coordination and the development of a coherent mediation process.

• The decision regarding leadership should be reached through consultations between the relevant entities, taking into account the conflict context and based on comparative advantage. Proximity to the parties should be neither dismissed nor taken for granted as an automatic advantage. Acceptability of the mediating body and their mediator by the conflict parties and the potential effectiveness of the mediation should be key considerations.

• Organizational capacity, capability and available resources should be considered in deciding on the division of labour within the mediation environment.

• Mediation actors should work together to agree on the degree of transparency and coordination mechanisms for information sharing. They should cooperate based on a common mediation strategy, ensure consistent messaging to the parties and avoid duplication or overloading the parties with multiple competing processes.

• International actors should consider establishing coordination mechanisms, such as groups of friends or international contact groups, to provide con sistent political and resource support for the mediation effort. They should also recognize that there may be circumstances in which such groups risk replicating the conflict dynamics, which would be unhelpful to the process.
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Quality peace agreements
48. Different kinds of agreements are reached over the course of a mediation process, ranging from those more limited in scope, such as ceasefires or procedural agreements on the nature of talks, to more comprehensive peace agreements. Furthermore, mediation may be required in the implementation stage, although usually by another set of actors so as to avoid reopening the agreement to negotiations.

49. Peace agreements should end violence and provide a platform to achieve sustainable peace, justice, security and reconciliation. To the extent possible in each situation, they should both address past wrongs and create a common vision for the future of the country, taking into account the differing implications for all segments of society. They should also respect international humanitarian, human rights and refugee laws.

50. Both the characteristics of the process and the contents of the accord determine the viability of a peace agreement. Its durability is generally based on the degree of political commitment of the conflict parties, buy-in from the population, the extent to which it addresses the root causes of the conflict, and whether it can withstand the stresses of implementation — in particular whether there are adequate processes to deal with possible disagreements that arise during implementation.

51. The implementation of peace agreements is often highly dependent on external support. The early involvement in the process of implementation support actors as well as donors can help encourage compliance with sometimes difficult concessions made during the negotiations. Although external support is critical to ensure that conflict parties have the capacity to implement the agreement, too much dependency on external assistance can undermine national ownership.

Guidance

52. To achieve a quality peace agreement, attention must be paid during negotiations and implementation to the process, substance and institutionalization of mechanisms that provide for the non-violent resolution of the conflict and prevent re-emergence of violent conflict. Mediators, conflict parties, other stakeholders and support actors should consider the following criteria:

• The agreement should aim to resolve the major issues and grievances that led to the conflict, either by addressing the root causes directly in the agreement or by establishing new mechanisms and/or institutions to address them over time through democratic processes.

• Where a comprehensive settlement appears unattainable, the mediator should establish with the conflict parties, and through broader consultations, what is the minimum that needs to be achieved in order to commence a peaceful approach to dealing with the remaining aspects of the conflict.

• When agreement cannot be reached on other sensitive issues, the mediator should also help the conflict parties and other stakeholders build into the agreement options or mechanisms for these issues to be addressed at a later time.

• Agreements should be as precise as possible in order to limit the points of contention that would have to be negotiated during the implementation stage.

• The gender dimension of all issues should be clearly articulated, as agreements that are gender neutral have often proven detrimental to the well-being, security and needs of women.

•Agreements should incorporate clear modalities for implementation, monitoring and dispute resolution to address disagreements that may arise during implementation. They should also include guidelines on priorities, the obligations of the respective parties and realistic timetables.

• Local capacity and existing national infrastructures to undertake conflict resolution should be evaluated and strengthened. Agreements should provide for strong dispute resolution mechanisms at different levels, including local and international actors as appropriate, so that problems can be addressed as they arise and not escalate.
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Effective Mediation
Conclusions
53. The Guidance identifies some key fundamentals for effective mediation and provides some suggestions as to how they may be applied in practice. It makes the case for mediators to have expertise and professional support and recognizes the need for careful assessment, proper planning and regular monitoring and evaluation in order to enhance the chances for success and minimize mediator error. The importance of a supportive external environment for the mediation process is underscored, with emphasis placed on the need for cooperation among entities involved in mediation. While all these factors are important, the success or failure of a mediation process ultimately depends on whether the conflict parties accept mediation and are committed to reaching an agreement. If the parties are genuinely willing to explore a negotiated solution, mediators can play an invaluable role.
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Part I - Global Overview

In attempting to broker durable and comprehensive agreements, the mediator and his/her team face significant demands to include a number of elements. This guidance offers advice to aid the mediator and his/her team in addressing a frequently used method and tactic of warfare: conflict-related sexual violence. It provides strategies for including this security and peacebuilding concern within ceasefire and security arrangements and in framing provisions for post-conflict justice and reparations. This guidance emerged from a United Nations1 High-Level Colloquium on Conflict-Related Sexual Violence2 and close consultation with eminent mediators, mediation support staff and subject experts.

In today’s violent conflicts, civilians are increasingly caught on the front line. One of the most devastating forms of extreme hostility waged against civilians is conflict-related sexual violence.3 While women and girls are often primary targets, conflict-related sexual violence is also strategically perpetrated against men and boys.

Arguably more powerful and less expensive than a gun, it is used to provoke displacement of populations in order to increase territorial control or access to resources (as in the Democratic Republic of Congo, Myanmar, Bougainville, Colombia and Darfur); affect reproduction and ethnicity (as in the former Yugoslavia and Rwanda); promote troop cohesion (as among forcibly recruited Revolutionary United Front fighters in Sierra Leone) and undermine social and community cohesion.

Highly effective, its use humiliates, dominates, instills fear, breaks identity and creates enduring ethnic, family and community divides. Yet, to date, few ceasefire or peace agreements have made provisions for addressing conflict-related sexual violence. Only three ceasefire agreements (Nuba Mountains, Burundi and Lusaka) specifically include sexual violence, for instance, as part of the definition of ceasefire.

Addressing conflict-related sexual violence at the outset of the mediation strategy can increase the durability of peace by mitigating security fears and improving transparency, accountability and confidence among parties.

If left unaddressed, it can be used as a means to continue acts of war outside the purview of agreements and monitoring teams, which can trigger cycles of vengeance and vigilantism, and risk undermining confidence in agreements and possibly the mediation process itself.

1Organized by DPA, DPKO, UNDP, UNIFEM and OCHA on behalf of UN Action Against Sexual Violence in Conflict and in partnership with the Centre for Humanitarian Dialogue (HDC).
2Five guidance notes were drafted by working groups consisting of international subject experts and gender advocates. Development of the drafts into guidance occurred in consultation with eminent mediators, mediation support staff and subject experts. DPA is grateful to Mr. Ahmedou Ould Abdallah for his vital contribution to the framing and development of this guidance, and to UN Action Against Sexual Violence in Conflict for their support for the organization of the Colloquium and finalization of this guidance.
3Conflict-related sexual violence is not specific to any era, culture or continent. Between 20,000 and 50,000 women were raped during the war in Bosnia in the early 1990s; in Sierra Leone, between 50,000 and 64,000 internally displaced women suffered sexual assault at the hands of combatants; the Rwandan genocide memorial notes that 500,000 women were raped during 100 days of conflict. In 2008 and 2009, the reported cases of sexual violence in the Democratic Republic of the Congo totaled 15,314 and 15,297, respectively. In 2010, the volume of cases reported monthly remained constant. See “Report of the Secretary-General on the implemen- tation of Security Council resolutions 820 (2008) and 1889 (2009)” (S/2010/604).
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Legal Norms

When is Sexual Violence an International Crime?

Depending on the circumstances of the offense, sexual violence can constitute a war crime, crime against humanity, act of torture or constituent act of genocide. The definition of sexual violence under international law encompasses rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, trafficking and any other form of sexual violence of comparable gravity, which may, depending on the circumstances, include situations of indecent assault, trafficking, inappropriate medical examinations and strip searches.7

7See, for example, statutes and the case law of the International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone and the Elements of Crimes of the International Criminal Court.
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Key Principles

The United Nations recognizes the complex and difficult task mediators face in reaching agreements that are not only comprehensive, but can also be effectively and realistically implemented.

In situations where conflict-related sexual violence has been used, or may have been used, UN mediators are obligated to introduce the subject in discussions with parties. At a minimum, sexual violence should be included within the definition of the ceasefire, and detailed or annexed in provisions for ceasefire monitoring. It is important that agreements, where necessary and appropriate, recognize conflict-related sexual violence as a method or tactic of warfare and include it in the framing of security and justice-related provisions. To this end, addressing conflict-related sexual violence can be seen as part of a continuum: from facilitating security, to dealing with the past, to breaking the cycle of impunity and ensuring reconciliation and rehabilitation.

In order to fulfill specific Security Council mandates8 on the issue, the mediator and his/her team can draw on the following checklist (and the more detailed guidance that accompanies it) for addressing conflict-related sexual violence as part of the overall mediation strategy.

8See Security Council resolution 1888 (2009).
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During Ongoing Hostilities and Mediation

During Ongoing Hostilities and at the Beginning of a Mediation Process:

• Assess whether there are credible reports of conflict-related sexual violence that may be occurring, or may have occurred.

• Actively seek to engage parties to discuss the immediate termination of conflict-related sexual violence, in discussion of other violations of human rights and international humanitarian law.

• Ensure consultation with and inclusion of women and gender experts in the process and as part of the mediation team.

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Essential Agreement Provisions

Essential Agreement Provisions should ensure:

• Sexual violence is included as a prohibited act, especially in the definition or principles of ceasefire.

• Monitoring for sexual violence is included in ceasefire agreements, including in relevant annexes.

• Recognition of sexual violence used in conflict as a method and tactic of warfare, as applicable.

• Amnesties for crimes under international law are prohibited, and arrangements for transitional justice are included, particularly prosecution, reparations and truth-seeking bodies.

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Provisions for Security Arrangements

Provisions for Security Arrangements should ensure:

• Command and control structures and codes of conduct for security actors prohibit conflict-related sexual violence and punish misconduct.

• Individuals credibly suspected of committing or being responsible for conflict-related sexual violence are excluded from participation or integration into government and the national security system, including armed forces, police, intelligence services and national guard, as well as civilian oversight and control mechanisms and other similar entities.

• Early, voluntary release and/or registration of those abducted, coerced or forcibly recruited9 from within the ranks of armed forces or groups.

• Security sector institutions are mandated to combat conflict-related sexual violence and training is provided to develop military and law enforcement capabilities to respond to it, including for military police.

9Forced recruits include forcibly recruited female and male combatants, forcibly recruited women and children associated with armed forces and groups, including forced wives and dependants, and domestic support.
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Provisions for Justice and Reparations

Provisions for Justice and Reparations should ensure:

• Amnesties for crimes under international law are prohibited.

• Provisions for transitional justice processes address issues of conflict-related sexual violence with equal priority to other international crimes.

• Provisions for transitional justice mechanisms incorporate specific reference to conflict-related sexual violence; include measures to protect the security and dignity of victims and witnesses; and include women and gender experts in its design and oversight.

• Provisions for reparations and relief, including for victims of conflict-related sexual violence.

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PART II - Addressing Conflict-Related Sexual Violence During Ongoing Hostilities and Ceasefire Agreements

This guidance note provides principles and strategies for mediators and their teams for addressing conflict-related sexual violence during ongoing hostilities and in the immediate, early framing of ceasefire.

At the earliest point of the mediation process, particularly during ongoing hostilities10 and in ceasefire agreements, the mediator and his/her team are advised to consider three key areas when addressing conflict-related sexual violence: (1) preparing the ground and confidence-building measures; (2) prohibiting sexual violence and promoting command responsibility; and (3) ensuring robust monitoring arrangements.11

Timing and staging are key to carefully creating a receptive environment and avoiding unnecessary delays or additional problems. A mediator may face challenges in approaching parties with the issue of conflict-related sexual violence in a way that is not perceived as an affront. Groundwork in advance of the discussion, including initiatives by civil society, including women’s groups, can help the mediator to advance discussions on the issue positively.

10During ongoing hostilities, precursors to a ceasefire agreement can include temporary pauses in fighting, cessation of hostilities and letters of commitment, which can act as confidence-building measures.
11See “United Nations guidance notes for mediators on addressing conflict-related sexual violence”: security arrangements; and justice and reparations.
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Principles

Principle 1: Assess whether conflict-related sexual violence may be occurring, or may have occurred.

At the outset of a mediation process, a mediator and his/her team are advised to obtain information on conflict-related sexual violence that may be occurring or may have occurred. In some cases, conflict-related sexual violence may be widespread, but not widely known, discussed or documented. In others, incidences may be reported by the media that have yet to be verified.

Principle 2: Actively seek to engage parties to discuss the immediate termination of conflict-related sexual violence in discussion of other violations of human rights and international humanitarian law.

United Nations envoys are required to raise conflict-related sexual violence issues in dialogue with parties to armed conflict. Mediators may convene parties to ensure a common level of understanding regarding the mediation and peace process. Early discussions on command responsibility can help to ensure that parties understand the risks and legal, political, economic and personal consequences for the use of conflict-related sexual violence. Parties may, thereby, want to avoid being perceived as perpetrating it. Such leverage can be used to achieve pre-ceasefire commitments to cease acts of conflict-related sexual violence, such as “letters of commitments” and other confidence-building measures.

Principle 3: Include sexual violence as a prohibited act.

In situations where conflict-related sexual violence may have occurred, sexual violence should be included as a prohibited act (as part of the definition or principles of ceasefire) which would breach the agreement. Its inclusion signals the seriousness of the issue to parties, victims and the public at large. It also serves as a reminder that such acts are also prohibited under international law, including the Law of Armed Conflict/International Humanitarian Law.

Principle 4: Ensure monitoring for sexual violence is included in ceasefire agreements, including in relevant annexes.

Provisions for monitoring should also include monitoring for conflict-related sexual violence. Such provisions help ensure that monitors (including the Department of Peacekeeping Operations) have an explicit mandate to monitor for conflict-related sexual violence.

Principle 5: Ensure inclusion of and consultation with women and gender experts.

Women with knowledge of the conflict, influential national and local female leaders, female monitors and gender experts can help mediators and their teams in gaining information and knowledge on conflict-related sexual violence. Such women and experts, particularly those that speak the local language, should be included in planning processes, negotiations, monitoring and investigations/ inquiries to ensure that conflict-related sexual violence is effectively addressed throughout.

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Knowledge Gathering, Knowledge Sharing and Strategic Communication

• In order to assess whether conflict-related sexual violence may be occurring, or may have occurred, particularly during ongoing hostilities, proactive outreach and coordination efforts by the mediation team is advised with the Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict, humanitarian actors or a humanitarian liaison,12 protection clusters,13 other UN actors, women’s groups and networks,14 victims of conflict-related sexual violence and their communities, police, former soldiers, and religious and political leaders, as appropriate. Such actors can also encourage and empower local communities to monitor, document and report on conflict-related sexual violence early on.

• Due to the highly sensitive nature of conflict-related sexual violence, a range of ethical and safety issues must be considered before commencing any inquiry, in order to protect individuals participating as well as their families and communities. Researchers/interviewers must make every effort to avoid re-victimization, while fulfilling their objective to collect reliable data. Any data collected on sexual violence must respect established ethical and safety principles, such as security, confidentiality, anonymity, informed consent, safety and protection from retribution, and protection of the data itself.15

• Mediators and their teams may consider encouraging civil society, including women’s groups, to convene a public forum(s) to discuss security and peacebuilding issues, including conflict-related sexual violence. Outcomes of such discussions can be fed back to the mediation team and used in discussion with the parties.

• Mediators may invite leaders and members of their negotiation teams, with the support of key actors and supportive governments or embassies, for information sessions on security concerns and important aspects of peace processes, and as an entry point for raising conflict-related sexual violence. Information on conflict-related sexual violence obtained from consultations, including outcomes of civil society forums, can be used to raise the issue in discussion with parties.

• Mediators should seek to make parties aware that sexual violence used as a tactic of conflict against civilians is a violation of international law and potential war crime or crime against humanity. Mediators may also point out that the perpetration of sexual violence in conflict elicits command responsibility on the part of leaders who fail to prevent and to punish viola- tions by their subordinates, regardless of whether or not they were directly involved.16 Dialogue on the consequences of conflict-related sexual violence may persuade parties to curtail acts that invite the scrutiny of the international community, the United Nations Security Council, international justice mechanisms and domestic constituencies.

• Mediators may remind parties to conflict that it is in their interest to prohibit, prevent and halt sexual violence for many reasons:

» Sexual violence during, and in the wake of, conflict weakens the legitimacy of actors (including non-state actors) who are seeking political recognition from the international community and local constituencies.

» Sexual violence undermines a state’s authority and can expose leaders to criticism for their failure to protect civilians, and can erode public trust and popular support.

» Under Security Council resolution 1960, such actions may lead to targeted sanctions against armed groups credibly suspected of committing patterns of conflict-related sexual violence and possible International Criminal Court referrals.

• Enlisting the support of gender expertise can help ensure a coordinated, systematic approach to addressing conflict-related sexual violence (and other gender issues) in planning and analysis.

12The mediation team could enlist the support of a humanitarian liaison in order to gather knowledge needed from the local level.
13Protection clusters in mission settings bring together different UN entities and expertise with the goal of promoting protection and human rights.
14As mandated by Security Council resolutions on women, peace and security.
15See “Summary of ethical and safety recommendations for researching, documenting and monitoring sexual violence in emergencies”, UN Action Against Sexual Violence in Conflict. See also “Reporting and interpreting data on sexual violence from conflict-affected countries: dos and don’ts”, UN Action Against Sexual Violence in Conflict.
16The International Criminal Court, as well as the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone, have indicted military and political leaders for conflict-related sexual violence.
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Information and Outreach

• The mediation team can convene and communicate with radio professionals to support radio programming for peace, including on conflict-related sexual violence.

• Mediators can share relevant information, as appropriate, on conflict-related sexual violence with the media as well as information on legal norms prohibiting and criminalizing it and international indictments for such crimes.

• Mediators can encourage the organization of social gatherings (such as joint prayers or sports events, as appropriate) which can present an opportunity to discuss key issues (such as conflict-related sexual violence) and bring together diverse groups including women, youth, elders, soldiers, etc.

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Pre-ceasefire Commitments

Importantly, pre-ceasefire commitments can act as confidence-building measures which can be built upon in subsequent cease- fire and peace agreements. Such measures can include temporary cessation of hostilities, letters of commitment by armed groups and human rights agreements,17 which should contain commitments to cease and prohibit sexual violence. In addition, humanitarian access agreements,18 while necessarily separate from political processes, can help build complementary commitments to halt and prevent conflict-related sexual violence.

17Human rights agreements, which have been signed in relatively few instances (such as the 1994 Guatemala Global Human Rights Agreement), have been incorporated into facilitated negotiations between parties to an ongoing conflict. Some agreements include protection of civilian commitments, in which the parties affirm their respect for international humanitarian law (IHL).
18Humanitarian access agreements are most commonly negotiated between humanitarian actors and parties to a conflict and have sometimes been signed concurrently with two or more parties to a conflict. This type of agreement tends to focus on facilitating access by humanitarian actors to the civilian population for the monitoring and delivery of assistance, as well as facilitating the civilian population’s access to that assistance.
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Inclusion of Language on Conflict-Related Sexual Violence in Ceasefire Agreements

Language prohibiting conflict-related sexual violence in ceasefire agreements can be included in the following sections:

• The preamble;

Definitions or principles of ceasefire;

• Provisions regarding the occupation of new ground positions or the movement of armed forces and resources from one area to another;

• Sections regarding freedom of movement;

• Provisions for monitoring; and

• Annexes which establish and define monitoring.

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Examples of Language Prohibiting Sexual Violence in the Definition of Ceasefire

Nuba Mountains Ceasefire Agreement (2000): Article II, Principles of Ceasefire: “(d.) All acts of violence against or other abuse of the civilian population, e.g., summary executions, torture, harassment, arbitrary detention and persecution of civilians on the basis of ethnic origin, religion, or political affiliations, incitement of ethnic hatred, aiming civilians, use of child soldiers, sexual violence, training of terrorists, genocide and bombing of the civilian population.”

Lusaka Agreement (1999): Article 1 (3) “The Ceasefire shall entail the cessation of: all acts of violence against the civilian population by respecting and protecting human rights. The acts of violence include summary executions, torture, harassment, detention and execution of civilians based on their ethnic origin; propaganda inciting ethnic and tribal hatred; arming civilians; recruitment and use of child soldiers; sexual violence; training and use of terrorists; massacres; downing of civilian aircraft; and bombing the civilian population.”

Ceasefire Agreement between the Government of the Republic of Burundi and the Palipehutu — FNL (2006): Article II “(1.) Ceasefire Agreement shall imply: ... (1.1.5) Cessation of all acts of violence against the civilian population: acts of vengeance; summary executions; torture; harassment; detention and persecution of civilians on the basis of ethnic origin; religious beliefs; and or political affiliation; arming of civilians; use of child soldiers; sexual violence; sponsoring or promotion of terrorist or genocide ideologies.”

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Monitoring Sexual Violence

Ceasefire agreements should contain language that provides for the monitoring of sexual violence, taking into account:

Establishing commissions to verify and monitor the ceasefire agreement: Where there has been significant violence against the civilian population, a ceasefire commission may include a distinct human rights monitoring unit, tasked with the ability to receive complaints, track incidents, including incidents of conflict-related sexual violence, and ensure follow-up.

Establishing a ceasefire observer modality, comprised of a civil society or NGO non-violent “peace force”19 with expertise in conflict-related sexual violence: Where belligerents are dispersed in many areas, among the population and without clearly defined zones, the mix of United Nations peacekeepers and a civilian force could monitor the positioning, movements and actions of belligerents, including incidents of conflict-related sexual violence.

Identification and reporting of sexual violence used as a method or tactic of war: Conflict-related sexual violence can take many forms. Monitoring teams should be aware of the context of the sexual violence (is it part of a series of sexual attacks, or a broader attack against the civilian population?), the identity of the attackers (are they current or former soldiers, militia or armed volunteers?) and the patterns (was the attack similar to other types of attacks in timing or nature?). Monitoring teams may establish regular information-sharing meetings with civil society groups who may be aware of conflict-related sexual violence that may be occurring or may have occurred.

Team composition for sexual violence monitoring: While the responsibility to monitor conflict-related sexual violence should be shared by the entire monitoring structure, the team should include female members, particularly those that speak the local language, and be tasked to document, investigate and report on conflict-related sexual violence incidents. The presence of female monitors can help to ensure access to and interaction with female victims. It can also help in speaking with male victims, who may be less reluctant to speak about incidences with female monitors.

19Such as in Sri Lanka and Mindanao where third country civilian observers were “inter- positioned” between belligerents, or the establishment of a coalition of NGO and civil society actors serving as a neutral civilian monitoring mechanism as in the 1996 ceasefire agreement in Mindanao.
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Education and Information Campaigns

Ceasefire agreements should contain language that provides for the monitoring of sexual violence, taking into account:

• Agreements can call for education and information campaigns which can increase government transparency and public confidence20 and can educate and inform combatants (rank and file), those associated with armed groups and the wider public of the contents, implications and expectations of the agreement, including those relating to conflict-related sexual violence.

Bougainville Peace Agreement (Bougainville, 2001) called for “an active joint programme to promote public awareness, understanding and support of weapons disposal”. As a result, Bougainville DDR monitors held public meetings in villages where they read the peace agreement and DDR provisions, and distributed material on the DDR process. They also organized sports and cultural activities to create forums where general communication could take place between the monitoring forces and communities.

20See “Security and Demilitarization: Peace Agreement Drafter’s Handbook”, Public International Law and Policy Group.
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Mediator's Checklist

❑ Have there been credible reports of conflict-related sexual violence? If so, which parties to the conflict may be suspected or accused of using the tactic?

❑ Which actors at the local level have knowledge and informa- tion on conflict-related sexual violence (e.g., UNHRC, OHCHR, OCHA, local women’s groups, etc.)? Is this knowledge being gathered, documented and saved (and by whom)? Are various knowledge gathering efforts being coordinated (and by whom)?

❑ Do the mediator and his/her team have the information they need to determine whether conflict-related sexual violence may be occurring or may have occurred? Has the mediation team ensured that information is being channeled to them regarding the number and types of victims, chain of command, and patterns of rape and other forms of conflict-related sexual violence occurring?

❑ Have gender experts been consulted for technical advice to the agreement and included in monitoring?

❑ Have gender experts, women with knowledge of the conflict, including influential national and local female leaders (including from women’s organizations and networks), been identified and engaged in the process?

❑ Is outreach being conducted with all parties to conflict to bring them together to enhance their knowledge and to ensure a common level of understanding of aspects of a peace process and international law, including in regard to sexual violence? For instance, are parties aware that military/political leaders have been indicted for conflict-related sexual violence?

❑ Have parties to conflict been brought together to make specific and time-bound commitments to ceasing all acts of sexual violence, such as “the issuance of clear orders through chains of command prohibiting sexual violence” as called for by the UN Secretary-General?21

❑ In drafting an agreement, has sexual violence been included in the definition or principles of ceasefire? Has language been included on monitoring conflict-related sexual violence, including within annexes defining ceasefire monitoring?

❑ In situations with a current or possible UN peacekeeping presence, does the language provide the Department of Peacekeeping Operations with a mandate to monitor conflict-related sexual violence as part of its activities?

21“Report of the Secretary-General on the implementation of Security Council resolutions 1820 (2008) and 1888 (2009)” (S/2010/604).
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Part III - Addressing Conflict-Related Sexual Violence in Security Arrangements

This guidance note provides principles and strategies for mediators and their teams for addressing conflict-related sexual violence in security-related provisions of ceasefire and peace agreements.

Addressing conflict-related sexual violence in security arrangements can help to protect against and prevent future occurrences and build effective, responsive security institutions. The mediator and his/her team are advised to consider three key areas in addressing sexual violence in security arrangements: (1) command responsibility and accountability of armed forces and groups; (2) community security; and (3) military and law-enforcement capability.

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Principles

Principle 1: Recognize sexual violence used in conflict as a method and tactic of warfare.

Sexual violence, when used as a method or tactic of warfare, should be treated as such in relevant provisions of ceasefire and peace agreements, including those which define disengagement and set the rules and responsibilities for demilitarized zones, buffer zones and DDR-related assembly areas/points.

Principle 2: Ensure provisions for the early, voluntary release and/or registration of those abducted, coerced or forcibly recruited22 from within the ranks of armed forces or groups.

Those who have been abducted, coerced or forcibly recruited from within the ranks of an armed force or group are often subject to high levels of sexual violence. It is important for agreements to contain provisions that specifically call for their early and voluntary release. Such provisions can also act as a confidence-building measure.

Principle 3: Exclude individuals credibly suspected of committing or being responsible for conflict-related sexual violence from participation in or integration into government and the national security system, including armed forces, police, intelligence services and national guard, as well as civilian oversight and control mechanisms, etc.

In efforts to prevent continued perpetration of conflict-related sexual violence in post-conflict environments, it is important to include provisions that call for the exclusion of individuals credibly suspected of committing or being responsible for conflict-related sexual violence from integration into armed forces, police and national guard, as well as civilian oversight and control mechanisms, etc. Provisions should also recommend the referral of such individuals to appropriate investigatory and prosecutory bodies, as well as placement in rehabilitation programmes.

Principle 4: Ensure that command and control structures and codes of conduct for security actors prohibit sexual violence and punish misconduct.

It is imperative that sexual violence is addressed in the discipline, mandates and roles of armed groups and transitional security forces. This can have a critical impact on the sustainability of security and peace.

Principle 5: Mandate security sector institutions to combat conflict-related sexual violence and include provisions for training aimed at developing military and law enforcement capabilities to respond to sexual violence, including for military police.

Post-conflict security arrangements and security sector institutions should be mandated and resourced to provide protection against conflict-related sexual violence. Security actors (such as military and police) need specific mandates to address conflict-related sexual violence, particularly targeting vulnerable communities (internally displaced persons (IDPs), refugees). Security forces engaged in transitional security arrangements must also possess the resources, partnerships and integrated structures to combat conflict-related sexual violence effectively.

22Forced recruits include forcibly recruited female and male combatants, forcibly recruited women and children associated with armed forces and groups, including forced wives and dependants, and domestic support.
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Conflict Analysis

In the earliest stages of conflict analysis and assessment, sexual violence used as a method or tactic of conflict should be considered as a relevant conflict factor that may contribute to the resurgence of violent conflict over the short and longer term. Such analysis can help to build comprehensive security plans and threat assessments that include measures to prevent and respond to conflict-related sexual violence.

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Inclusion of Language on Sexual Violence in Provisions for Security Arrangements in Ceasefire and Peace Agreements

Where possible, provisions for security arrangements in ceasefire and peace agreements should include sexual violence. Importantly, annexes often elaborate on security arrangements, and can offer practical entry points for specifically addressing it.

• Language can be integrated into agreements and their annexes which provide for, inter alia:

   » Dismantling: In provisions requiring command responsibility in the dismantling of troops and armed groups operating alongside parties’ troops, or on territory under parties’ control,23 parties can be called upon to take all necessary measures to prevent, respond to and punish sexual violence by those under their command.

   » Disengagement:24 Provisions for disengagement, particularly definitional clauses,25 should prohibit the use of sexual violence as a method or tactic of warfare.

   » Withdrawal of Foreign Forces: In inter-state conflicts, where provisions are made for the withdrawal of foreign forces, force commanders should be called upon to prevent, respond to and punish acts of sexual violence by those under their command.

   » Release of Hostages and Exchange of Prisoners: Such sections should include and specify the early, voluntary release of those abducted, coerced or forcibly recruited from within the ranks of an armed force or group.

   » Rules of and Responsibilities in Relation to Demilitarized and Buffer Zones: Provisions for the separation of forces should ensure monitoring of buffer zones by military observers and deployment of special police forces around vulnerable communities, cantonments and IDP and refugee camps. Rules for demilitarized and buffer zones should include provisions for prohibiting sexual violence and for ensuring special protection against it.

   » Integration of Former Combatants into Security and Other State Institutions: Such sections should specifically require vetting of those with a history or association with conflict-related sexual violence.

   » Plans for Security and Policing: Such provisions should address the consequences of conflict-related sexual violence in a post-conflict environment and require training to develop military and law-enforcement capabilities to prevent and respond to conflict-related sexual violence.

23See Nuba Mountains Ceasefire Agreement (2002), Article 3.3. While this example does not contain language on sexual violence, it is referenced here as an example of where such language could be included.
24In situations where disengagement does not apply, definitions of the cessation of hostilities should specifically prohibit the use of sexual violence. See “United Nations Guidance Note for Mediators: Addressing Conflict-Related Sexual Violence during Ongoing Hostilities and Ceasefire Agreements”.
25See Nuba Mountains Ceasefire Agreement (2002), Article 3.1; Lusaka Ceasefire Agreement (1999), Annex A, 2.1; Article 5, Peace Agreement between the Government of Liberia, the Liberians United for Reconciliation and Democracy, the Movement for Democracy in Liberia and the political parties (2003). While these examples do not contain language on sexual violence, they are referenced here as examples of where such language could be included.
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Monitoring

• Provisions for monitoring and monitoring mechanisms, including joint military commissions (JMCs) and international stabilization forces, established to assist in and monitor the disengagement and redeployment of combatants should include, inter alia:

» Verification of disengagement of sexual violence used as a method and tactic of conflict.

» Monitoring and reporting on incidences of conflict-related sexual violence, including identification of parties credibly suspected of the tactical use of sexual violence.

» Representation of women and gender experts in monitoring structures to help ensure access to and interaction with female victims, as well as monitor for conflict-related sexual violence.

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Control of Weapons

Discussions on collection, documentation, control and disposal of small arms and light and heavy weapons of combatants and of the civilian population can contribute to preventing conflict-related sexual violence. For instance, it is estimated that 90 per cent of the cases of conflict-related sexual violence in Eastern Democratic Republic of Congo have been perpetrated by men with guns, outside the purview of existing ceasefire and peace agreements. The engagement of women’s groups and networks can help with eventual disarmament processes.

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Demobilization and Reintegration

Provisions that list categories of people to be demobilized should specifically include those abducted, coerced or forcibly recruited, particularly women and girls, from within the ranks of armed forces or groups. Consideration should be made for delays in the identification and listing of such groups. Provisions should also take into consideration the need to extend time frames and set aside necessary services and financial resources in DDR programmes.

It is also important to consider and include provisions for assistance, health care and counseling services for victims of conflict-related sexual violence who are eligible for the DDR programme. Those who have experienced rape (especially repeated rapes) and sexual abuse sustain damage to internal and reproductive organs and other physical health problems, which often results in physical and psychological disability.

DDR-related provisions in agreements should also recognize the need for gender-responsive reconciliation and public safety programmes for communities receiving large numbers of ex-combatants.

For those with a history of or an association with conflict-related sexual violence, provisions should ensure that such individuals are vetted from entry into security institutions and are brought to justice. Considerations should also be made for counseling and rehabilitation services.

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Examples of Existing Language

• The Agreement on Disarmament, Demobilization and Reintegration between the Government of Uganda and the Lord’s Resistance Army/Movement (2008) addresses sexual violence in provisions for Demobilization by requiring, in Article 5.4 (c), “Protection from sexual violence or abuse, appropriate services for pregnant women and lactating mothers, and adequate presence of female staff.”

• Darfur Peace Agreement (2006), Article 26, para. 278: “AMIS Civilian Police together with GoS Police, and Movements’ Police Liaison Officers in their respective areas of control, shall establish separate police counters for the reporting of crimes committed against women, and women police personnel should staff these counters.”

• Darfur Peace Agreement (2006), Article 26, para. 279: “A significant number of GoS Police, Movements’ Police Liaison Officers and AMIS Civilian Police officers shall be women; they shall have specialist gender units to work with women and children; and all their investigations and monitoring shall include at least one woman.”

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Mediator's Checklist

❑ Do security-related provisions in the agreement include, inter alia:

• Command responsibility to condone, prevent, respond to and punish acts of conflict-related sexual violence, for instance, in dismantling, disengagement and the withdrawal of forces?

• Early, voluntary release of those abducted, coerced or forcibly recruited from within the ranks of armed forces or groups?

• Prohibition of the use of sexual violence as a method or tactic of conflict?

• Monitoring of the use of sexual violence as a method or tactic of conflict?

❑ Are transitional security arrangements mandated to combat conflict-related sexual violence through police and military responses?

❑ Have provisions been included to vet former combatants with a history or association with conflict-related sexual violence from entry into security institutions?

❑ Have plans been included for the development and funding of training for military and law enforcement capabilities to prevent and respond to conflict-related sexual violence?

❑ Are there plans for information and education campaigns on the content, implications and expectations of the agreement, including those relating to conflict-related sexual violence?

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Part IV - Addressing Conflict-Related Sexual Violence in Framing Provisions for Post-Conflict Justice and Reparations

This guidance note provides principles and strategies for mediators and their teams for ensuring that provisions for justice and reparations address conflict-related sexual violence.26

While an increasing number of peace agreements provide for a range of justice mechanisms to ensure accountability for war-time violations, most peace agreements have been silent on questions of accountability for conflict-related sexual violence, and redress for its victims.27 Effective transitional justice and reconciliation mechanisms28 and domestic courts are vital to the prosecution of conflict-related sexual violence and ensuring reparations.

Mediators can help to lay the groundwork for transitional justice mechanisms that strengthen national legal and institutional environments in which agreements are implemented.

The mediator and his/her team are advised to consider three key areas in addressing conflict-related sexual violence in framing provisions for post-conflict justice and reparations in peace agreements: (1) accountability for those with a history or association with conflict-related sexual violence; (2) protection and participation of victims and witnesses engaged in pursuit of justice and reparations; and (3) reparations for victims of conflict-related sexual violence.

26Security Council resolution 1820 (2008) calls for justice for victims of conflict-related sexual violence, and places the onus on those seeking to resolve conflict to ensure that this is addressed during mediation and in peace agreements.
27According to research conducted by UN Women, since the end of the cold war, only the Sun City Agreement for Democratic Republic of Congo in 2003 and the Agreement on Accountability and Reconciliation (and its annex) between the Government of Uganda and the Lord’s Resistance Army in 2008 include language mentioning sexual violence in relation with questions of accountability. See UN Women (2010), “Women’s participation in peace negotiations: connections between presence and influence”.
28Transitional justice mechanisms can include truth and reconciliation commissions, hybrid tribunals, local customs and rituals.
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Principles

Principle 1: Justice processes should address issues of conflict-related sexual violence with equal priority to other international crimes.

Conflict-related sexual violence is a constitutive element of several international crimes, and can amount to a war crime, crime against humanity, constituent act of genocide or gross violation of human rights.

Principle 2: Amnesties for crimes under international law are prohibited.

It is the position of the United Nations that the peace agreements it endorses can never promise amnesties for genocide, war crimes and crimes against humanity or gross violations of human rights (which sexual violence, under international law, can amount to).29 Security Council resolution 1820 (2008) reinforces this position by calling for the exclusion of sexual violence crimes from amnesty provisions.30

Principle 3: Ensure provisions for transitional justice mechanisms incorporate specific reference to conflict-related sexual violence; include measures to protect the security and dignity of victims and witnesses; and include women and gender experts in its design and oversight.

Transitional justice mechanisms should include a mix of approaches, from criminal accountability, to truth seeking, and reparations and redress. The mix of mechanisms should be carefully tailored to meet the demands of the specific context, ensuring that cultural issues, resource constraints and statutes of limitations do not bar justice, truth and comprehensive reparations for sexual violence.

It is important to keep in mind that victims seeking accountability and redress for conflict-related sexual violence often face multiple challenges including social ostracism, physical threats and institutional barriers. It is important for transitional justice mechanisms to provide for strategies to protect victims and witnesses, including victim/witness protection programmes, provisions for in camera hearings, support counselors, etc.

Principle 4: Ensure there are provisions which call for reparations, including for victims of conflict-related sexual violence.

Reparations can assist in mitigating the impacts of harm suffered. Reparations have particular importance for victims of conflict-related sexual violence who suffer not just the physical and mental injuries resulting from the crime, but frequently also the added harm of ostracization and related risks of vulnerability and destitution. Reparations programmes hold the potential to deliver targeted resources to an otherwise marginalized population, providing a vehicle for recovery and contributing to sustainable livelihoods.31

29S/2004/616, para. 10.
30Under Security Council resolution 1820 (2008), Member States are also under obligation to prosecute persons responsible for conflict-related sexual violence, and to ensure that victims, particularly women and girls, have equal protection under the law and equal access to justice.
31Rashida Manjoo (2010), “Thematic report on reparations for women” (Special rapporteur on violence against women).
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Considerations and Challenges

While international humanitarian and criminal law codifies sexual violence in conflict as a war crime, crime against humanity or constituent act of genocide, negotiating justice and accountability for sexual violence crimes requires taking a number of elements into consideration, including:

Truth-Seeking Mechanisms: Many peace agreements provide for a truth-seeking mechanism as a first step to uncovering war-time violations or as a parallel mechanism to criminal prosecutions. Yet, victims seeking accountability for sexual violence crimes face multiple challenges including social ostracism, physical threats (backlash attacks by perpetrators) and institutional barriers when seeking to address transitional justice mechanisms. Unless special measures are provided for in the agreement to protect the dignity and safety of victims, they are at risk of exclusion or re-traumatization.

Criminal Justice: While some peace agreements provide for the establishment of war crime tribunals or chambers, the majority of war-time abuses tend to be referred to the domestic justice system with a strong emphasis on traditional/informal justice processes. Most agreements do not address how these processes can effectively prosecute conflict-related or protect the dignity and safety of survivors of sexual violence. Prosecutions through these mechanisms often focus on the senior-most perpetrators, while “de facto” amnesty continues to exist for the “rank and file”. This has an impact on perceived impunity and redress for victims.

Reparations and Relief: The multidimensional impact of violations on victims’ physical and psychological health, as well as wider socio-political and economic consequences, resulting from social ostracism once crimes are reported, requires multiple forms of redress and rehabilitation — which need to be taken into account in reparation, relief and compensation programmes.

29S/2004/616, para. 10.
30Under Security Council resolution 1820 (2008), Member States are also under obligation to prosecute persons responsible for conflict-related sexual violence, and to ensure that victims, particularly women and girls, have equal protection under the law and equal access to justice.
31Rashida Manjoo (2010), “Thematic report on reparations for women” (Special rapporteur on violence against women).
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Amnesty Provisions

Conflict-related sexual violence is a constitutive element of several international crimes, and can amount to a war crime, crime against humanity, constituent act of genocide or gross violation of human rights. The Roadmap for ending the Crisis in Madagascar (2011): article 3.18 ensures the exclusion of such international crimes from amnesty:

Article 3.18: “The granting of a blanket amnesty for all political events which happened between 2002 and 2009, except for crimes against humanity, war crimes, crimes of genocide and other serious violations of human rights and fundamental freedoms. The amnesty law shall be ratified by the Transitional Parliament, and no election shall take place to the ratification.”

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Transitional Justice

Provisions that address transitional justice mechanisms should incorporate specific reference to conflict-related sexual violence and include measures to protect the security and dignity of victims and witnesses, taking into consideration, inter alia:

• Mechanisms for judicial treatment of conflict-related sexual violence should include criminal accountability, truth seeking and reparations, among others. One mechanism on its own may not be sufficient to address sexual violence after the conflict.

• A transitional justice plan should include an oversight mechanism to ensure that conflict-related sexual violence is effectively addressed. This could take the shape of a national human rights body, established by a peace agreement, and given a mandate over the monitoring and reporting of human rights violations, as well as the establishment of transitional justice processes. Establishment of such a body within the framework of a peace agreement could lead to a harmonized approach to conflict-related sexual violence cases through transitional justice measures.

• The need to strengthen domestic law, institutions and enforcement capacity in order to ensure the proper implementation of a transitional justice strategy, and to guard against future abuses and impunity. Given common gender biases in national law and institutions, legal reforms are of particular importance in addressing conflict-related sexual violence.

• Mediators should be aware of the limitations of informal justice mechanisms, and agreements should help to ensure that criminal accountability and other formal justice processes are not circumvented.

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Comprehensive Reparations

Agreements that contain provisions for reparations, and adequate funding for them, is vital. In Sierra Leone, for instance, the Truth and Reconciliation Commission recommended that the Government establish pensions for certain categories of beneficiaries, including women affected by the conflict, and that the size of these pensions be determined in relation to ex-combatant pensions and demobilization packages.

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Conflict-Related Sexual Violence
Mediator's Checklist

❑ Is outreach being conducted with all parties to conflict to bring them together to enhance their knowledge and to ensure a common level of understanding of aspects of peace processes and international law, including in regard to sexual violence? For instance, are parties aware that sexual violence used as a tac- tic of war is a violation of international law which may reduce legitimacy before the international community? Are parties aware that military/political leaders have been indicted for conflict-related sexual violence, and that amnesties for crimes under international law are prohibited?

❑ Have gender experts and legal experts been consulted for additional technical advice?

❑ Do provisions for transitional justice mechanisms address conflict-related sexual violence and call for the inclusion of women and gender experts in their design?

❑ Are measures in place to ensure that justice mechanisms facilitate the protection and participation of witnesses and victims of conflict-related sexual violence?

❑ Does the agreement contain provisions for reparations?