Pax et calculis

or a little essay about the historical role of biased mediators and its consequences.

-Have I told you about when I almost went to war?…..

After a long afternoon of small talk (accompanied by the rituals that that entails, here I refer not only to food and beverages being shared but also to the harsh, but truthful comments about the daily and predictable decline of the country’s condition), that silly but significant question from my Grandfather awoke me. The answer was, no. I had no idea at that time what I know now, my Grandfather was one of the many Argentineans who had been through mandatory military training and was notified at the end of 1978, that if the conflict with Chile broke out he was gonna be mobilized down south, to war. The Beagle conflict which had been brewing since 1881, threatened to mobilize two de facto governments into a bloody war almost a century later.

Diplomacy had failed, and war and its horrors seemed inevitable. It was as if Cain was gonna kill Abel again, and my grandfather was screwed, to say the least. However, God works in mysterious ways, and the same can be said about his main institution on earth – the Papacy. Since peace is viewed as both a spiritual and a political matter, the Church believed it had the right, as well as the obligation, to intervene in this dispute between Catholic countries. Thus a mediator had entered the scene. The Pope sent Cardinal Samoré – a diplomat of the church – who proved as wise as a serpent and as harmless as a dove. He built the trust needed between parties and was able to lessen the emotional intensity of the negotiations. This was proper shuttle diplomacy done in a Christian fashion. The success of the negotiations and the subsequent peace agreement of 1984 can be explained by the demonstrable impartiality of the mediator. 

The Papacy proved to be a judge without a direct interest in the outcome of the negotiations. Neutrality appealed to both parties (and to my grandfather, Deo Gratias!). But what happens when the mediator in an international conflict is biased? What happens when there’s no God to negotiate with? We end up with something that scholars define as a biased mediator. For my legal-minded brain, it is a fascinating paradox – a peacemaker whose scales are not quite balanced, much like a judge who secretly places wagers on his verdicts. 

The traditional ideal of mediation presents the mediator as a neutral Solomon, dispensing wisdom with an even hand (let’s skip the fact about splitting babies in half here). Nevertheless, history is far less accommodating to such noble illusions. In reality, mediators often arrive at the table with quiet allegiances, hidden stakes, and unspoken objectives. Some favour a side out of ideological kinship, others because their fortunes are entangled in the outcome (and they want your rare earth minerals as payback). But let’s not get overly political, let’s stay unbiased. 

Before going forward, I would like to point out a crucial distinction often neglected by non-legal scholars, the difference between arbitration and mediation. Arbitration can be defined as the submission of a dispute to a neutral person or body, whose verdict the disputants engaged themselves in advance to accept (for example, if two kids arguing about the ownership of a candy bar, they ask their mother to decide the fate of the candy. This example applies universally, from children to state generals). In international conflicts, states that agree to such arbitration cede the final decision-making power to a third party. This neutral arbiter acts in a quasi-judicial manner, determining who is right and who is wrong, and/or assessing damages and concessions. In the ancient world, no dispute between kings was ever successfully taken to arbitration. It is said that King Ptolemy II Philadelphus of Egypt offered his capabilities to arbitrate the First Punic War, but the Romans refused his offer. Hélas! how different our world would be now if those negotiations had succeeded, we could never know. Or perhaps we could have moved from Carthago delenda est to Carthago toleranda est. However, toleration and mediation were not a common currency between powers of the past (or present). 

In contrast, mediation involves encouraging and facilitating the reconciliation of opposing parties through various means short of quasi-judicial, binding verdicts. 

This might involve offering one’s good offices as an intermediary to initiate negotiations, providing one’ a neutral venue for discussions, or suggesting compromise solutions to the specific issues at hand (going back to the kid’s example, the mother as a mediator might suggest holding a summit in the kitchen with both parties and splitting the bar, but ultimately, the final decision rests with the children). States that permit such mediation efforts do not preemptively relinquish the final say on outstanding issues. They maintain the right to reject any compromises and continue the conflict if they feel so.

But let’s get back on track.

It is fair to say that bias, though often seen as a sin, is not without its advantages – a mixed blessing to say the least. A mediator with a favorite party may have the power to gently, but effectively, nudge that party toward compromise, like a seasoned diplomat whispering in the ear of a reluctant sovereign. Even unevenly distributed influence can smooth the path to agreement, persuading the disputants that peace, however imperfect, is preferable to endless war. As we all know, es mejor un mal arreglo que un buen juicio (“a bad deal is better than a good trial”, a common phrase often reiterated to the unconscious minds of sleepy law students).  A mediator with a stake in the game may also be more invested in securing a lasting resolution, not out of selfless devotion, but because his interests demand stability- In this way, power ultimately acts as a great peace-maker. Some of history’s most effective peace settlements have been brokered by figures whose hands were anything but clean. Let’s not forget that before slaughtering each other, the Soviet Union and Nazi Germany plotted together. After long years of negotiations carried out both in secret and public, they signed what is now known as the Molotov–Ribbentrop Pact – a peace treaty that only led to more devastation, who would have thought so.

Notwithstanding this, the dangers of partiality loom large. If one of the sides senses, or knows that the mediator is little more than an advocate in disguise, the entire process risks collapse. This is understandable. Perceived unfairness breeds resentment. A mediator who is too openly aligned with one faction may find himself powerless to sway the other (except when this mediator has a lot of nuclear heads or controls the gas supply of your country, or worse, is in charge of international financial institutions…. I think I make my point clear – leverage is the base of power in negotiations). Once broken, trust is difficult to restore, and negotiations conducted under the shadow of suspicion often amount to little more than political theatre. A peace broker who is trusted by no one is no peace broker at all. 

In the post-war mediation of Trieste, Anglo-American efforts tilted ever so slightly toward the Italians, arousing Yugoslav suspicion and deepening tensions. The United States, despite its grand proclamations of neutrality, has often found its peacemaking coloured by its strategic interests (unsurprisingly for the “realist” interpreter of politics, or anyone who has read a history book). Its settlements have often served as much to reinforce its global influence as to end conflicts. Even regional organizations – such as IGAD, that small trading block of African states that played the role of mediator in the Sudanese civil war – saw their mediation efforts falter when their partiality became too pronounced. These cases reveal the fine line between influence and interference, between a guiding hand and a manipulative one.In conclusion, the path to peace is rarely paved with perfect impartiality. This acceptance stems from a pragmatic calculation, a flawed peace is better than a devastating war. Ultimately, even with a biased mediator, the priority must be to create conditions that foster lasting peace, opting for an imperfect path over the disastrous consequences of inaction. It is the collective effort of states to grant the god Mars another day of rest. In such cases, the acceptance of bias becomes a pragmatic concession on the altar of stability. It is a testament to humanity’s enduring, if often compromised, pursuit of Pax et calculis.

In conclusion, the path to peace is rarely paved with perfect impartiality. This acceptance stems from a pragmatic calculation, a flawed peace is better than a devastating war. Ultimately, even with a biased mediator, the priority must be to create conditions that foster lasting peace, opting for an imperfect path over the disastrous consequences of inaction. It is the collective effort of states to grant the god Mars another day of rest. In such cases, the acceptance of bias becomes a pragmatic concession on the altar of stability. It is a testament to humanity’s enduring, if often compromised, pursuit of Pax et calculis.