Human rights organizations and transitional justice agenda-setting: Evidence from peace agreement provisions

Abstract

How do human rights organizations (HROs) shape transitional justice policy in countries emerging from conflict? We investigate this question in the context of peace processes, a vital stage when many key post-conflict policies are determined. Using granular data on the content of peace agreements, we show that the robust presence of HROs significantly increases the likelihood of provisions promising criminal accountability for wartime abuses. Yet this association is conditional on prior ratification of international human rights instruments and the existence of impartial third parties in the peace process—background factors that lower barriers to effective HRO advocacy. These findings reveal a novel pathway through which HROs secure transitional justice on the national agenda after conflict.

Keywords

Civil society human rights non-governmental organizations (NGOs)peace agreements transitional justice

How do human rights organizations influence transitional justice policies in countries emerging from civil war? Human rights organizations feature prominently in many success stories of transitional justice. Their tireless lobbying helped to realize the trial of the Chadian dictator Hissène Habré, who orchestrated mass atrocities during the civil war in the 1980s (Brody, 2015). In Colombia, they played a key role in relaying public preferences about transitional justice (Colombia Reports, 2014). However, in other post-conflict settings, such as El Salvador (Nilsson, 2018) and Macedonia (Anderson, 2016), human rights organizations have struggled to make accountability a reality. Why?

Existing research emphasizes the powerful mobilizing functions of human rights organizations (hereafter HROs) and civil society.¹ They help domestic groups to mobilize (Chenoweth and Stephan, 2011; Murdie and Bhasin, 2010), seek access to justice (Dancy and Michel, 2016; Simmons, 2008) and train public attention on governments’ abusive practices (Ausderan, 2014; Keck and Sikkink, 1998; Murdie and Peksen, 2014; Murdie and Davis, 2012). However, these accounts offer an incomplete picture of how HROs influence transitional justice policies in states emerging from armed conflict. Because conflict significantly reconfigures social networks and curtails the capacity of civil society (Bell and Keenan, 2004; Wood, 2008), transitional justice in these settings typically begins as a top-down, rather than bottom-up, project, with elites imposing their preferred justice policy (Kim and Hong, 2019; Kitagawa and Bell, 2022). Whether and how HROs exercise any agency over this policymaking process remain unclear, despite the proliferation of transitional justice policies in contemporary post-conflict settings.

We investigate this question in the context of peace processes, a vital but underexplored stage between open conflict and the post-conflict period when elites negotiate and formalize key transitional justice policies in a peace agreement. Peace agreements are significant: they publicly commit leaders to new policies and generate wide-ranging institutional reforms (Fortna, 2003; Joshi and Quinn, 2017). Yet the trajectory of such reforms in the post-conflict period ultimately depends on the specific content of these texts (Reid, 2021). We examine the conditions under which HROs can translate their demands for criminal accountability into formal government commitments during this agenda-setting stage, a rare opportunity for these actors to sway elites.

We argue that a robust HRO presence brings negotiating parties under greater pressure to include formal provisions on criminal accountability for acts committed during conflict. Negotiating parties prefer to avoid judicial policies that could implicate themselves or jeopardize the peace process. Yet a large HRO presence signals broader public support for criminal accountability, thereby raising the political costs of a provision that reflects elites’ immediate interests.

However, HRO presence alone is not always enough. Civil society actors face distinct barriers to participation in peace negotiations (Bell and Keenan, 2004). We consider two conditions that potentially lower these barriers. First, pre-existing state commitments to international human rights instruments provide legal and social resources for HROs to press the negotiating parties on criminal accountability. Second, external third parties in the peace process can enhance HROs’ influence by granting them direct access to the negotiating parties and increasing the political weight of their demands. We illustrate these mechanisms in the peace processes of Burundi and Colombia—two states with distinct conflict and demographic profiles, but which share similar patterns of HRO activity that resulted in substantive commitments to criminal accountability for wartime acts.

We next test the argument using global data on HROs and specific provisions contained in peace agreements, adopted between 1991 and 2012 in states that experienced intrastate conflict. HRO member presence is associated with a significantly higher likelihood that a peace agreement contains a substantive provision on criminal accountability for conflict-era abuses. This association diminishes with the increasing independence of the domestic judicial system, suggesting a scope condition for the result. Further, the ability of HROs to secure criminal accountability provisions is amplified by the state’s ratification of international human rights instruments and by third party engagement in the peace process, particularly the United Nations (UN). These conditional relationships are strongest for provisions on international, rather than domestic, criminal accountability, and prior to the creation of the International Criminal Court (ICC). The results are robust to controlling for various agreement- and state-level factors.

Our findings contribute to a growing scholarship on transitional justice following conflict (e.g. Bakiner, 2019; Dancy and Wiebelhaus-Brahm, 2018; Kim and Hong, 2019; Kitagawa and Bell, 2022; Loyle and Appel, 2017; Loyle and Binningsbø, 2018). Past research highlights the direct and indirect roles of international non-governmental organizations (INGOs) in setting off a “cascade” of norms about transitional justice (Lutz and Sikkink, 2001). We provide the first systematic examination of how HROs, a crucial subset of INGOs, help to formalize such shifts in peace agreements. With a stronger presence, HROs are more likely to achieve substantive commitments to accountability for wartime acts—an otherwise difficult policy to achieve, given political incentives that favor a norm of impunity least likely to jeopardize the peace process.

This article also yields insights on justice advocacy during peace negotiations, an agenda-setting stage that has been overlooked by transitional justice scholarship. We demonstrate that HROs’ agenda-setting success depends on broader conditions of the peace process. This helps to explain why some public demands for post-conflict justice efforts make the national agenda, while others are sidelined despite active HRO campaigning.

Lastly, our findings complement a rich scholarship on how civil society actors influence the longer-term trajectory of peace processes. Although peace agreements are primarily negotiated by powerful elites, civil society participation can confer legitimacy on this process (Bell and O’Rourke, 2007; Paffenholz, 2014) and strengthen the implementation of the resulting agreements (Krause et al., 2018; Reid, 2021). We advance this literature by showing concrete evidence that HROs are also associated with a difference in the initial content of peace agreements, revealing an important pathway for these actors to shape longer-term outcomes after conflict.

Civil society and transitional justice

Civil society is a recurring theme in transitional justice success stories. The detailed reports by non-governmental organizations (NGOs) of human rights abuses, committed during conflict or dictatorships, often justify and inform the design of subsequent justice efforts (e.g. Anderlini, 2007; Howland, 2008; Zvobgo, 2020). Under the Pinochet regime in Chile, for example, activists’ concerted efforts to document human rights abuses generated rich evidence that provided a basis for the country’s National Commission on Truth and Reconciliation (Sutil, 1997: 123–125). In their analysis of the “justice cascade”, Lutz and Sikkink (2001: 31) argue that the “intensity of the determination of domestic human rights advocates and victims” to pressure their governments paved the way for the criminal prosecutions of autocrats across Latin America.

This scholarship provides rich insights on how human rights actors adopt and spread justice norms (Finnemore and Sikkink, 1998; Keck and Sikkink, 1998), particularly following democratization (Dancy and Michel, 2016; Kim, 2012). However, it offers an incomplete picture of how these actors influence transitional justice policymaking in conflict settings. Although scholars often portray civil society as a check on the politically powerful (Braithwaite and Licht, 2019), conflict weakens the rule of law, curtails civil society’s abilities to pressure governments, and leaves rights advocates more open to attack (Maney et al., 2006; Orjuela, 2003; Rutzen, 2015). Accordingly, HROs’ record of securing human rights protections has faltered in settings as diverse as Liberia, Nicaragua and Macedonia (Anderson, 2016; Nilsson, 2018; Zanker, 2014).

HROs must also navigate competing transitional justice preferences among more powerful actors in states emerging from internal armed conflict. Transitional justice in these settings often begins as a top-down project, with political and military elites adopting their preferred policy (Kim and Hong, 2019). Notably, these policy decisions are frequently made before the conflict has formally ended (Loyle and Binningsbø, 2018). Peace negotiations are thus a critical intermediary stage between open violence and the post-conflict period when many key transitional justice policies are debated and formalized by elites. Yet few studies offer an account of whether and how HROs exercise any influence over transitional justice policymaking during this stage.

A rich literature, but one that remains disconnected from the transitional justice scholarship, demonstrates the unique importance of the negotiations stage. The end of civil war brings a dramatic structural change: it creates new opportunities for previously disenfranchised civil society actors to mobilize and advocate for social change (Hughes and Tripp, 2015; Wood, 2008), at least in the short to medium term (Webster et al., 2019). Research also links civil society participation in peace processes to longer peace duration (Krause et al., 2018; Nilsson, 2012; Paffenholz, 2014; Shair-Rosenfield and Wood, 2017; Wanis-St John and Kew, 2008) and better political representation and rights protections following conflict (Anderson, 2016; Reid, 2021).

One way that civil society actors affect such longer-term institutional outcomes is by securing formal commitments in a peace agreement. Reid (2021), for example, finds that when peace agreements include gender-inclusive provisions in their texts, they increase the likelihood of improvements in women’s political rights following conflict. Studies also find a robust relationship between the substantive content of provisions and post-conflict stability (Druckman and Wagner, 2019; Fortna, 2003; Joshi et al., 2015). In short, the content of peace agreements matters. Far from being cheap talk, it can set the longer-term trajectory for national policies and institutions after conflict.

Building upon this work, we theorize the conditions under which HROs can secure substantive provisions about transitional justice in a peace agreement. That is, we focus on the content of a peace agreement as an indication of HROs’ agenda-setting success. This approach departs from previous studies of peace agreements that focus on either their implementation as the dependent variable or their effects on peace durability. Bell and Keenan (2004: 332) observe that HROs “often [play] a part in ensuring that human rights provisions were inserted into a peace agreement’s text”, but the extent to which they do so, and what kinds of provisions they affect, remain unclear. What has been missing is an account of HRO dynamics during peace talks when elites are negotiating the transitional justice agenda.

Peace processes as a critical juncture for influencing the agenda

Peace negotiations present a unique “window of opportunity” for HROs to enter policy debates (Anderson, 2016). State authorities are under pressure to deliver an agreement that is perceived as legitimate, where legitimacy is in part based on the extent to which the agreement has been (or is perceived to have been) informed by voices from diverse actors, beyond government officials and insurgents (Jarstad and Sisk, 2008). Inviting input from civil society representatives can enhance the credibility of the government (Shair-Rosenfield and Wood, 2017) and signal to warring parties that there is limited public support for more violence (Nilsson, 2012: 250). This stage of conflict termination therefore gives HROs rare access to elites that set the terms of the deal.

A growing body of single-country case studies documents how HROs leverage peace talks to lobby for formal commitments specific to transitional justice. In Liberia, the Catholic Justice and Peace Commission was a prominent advocate for the establishment of a commission of inquiry into abuses committed during the 1990–1997 civil war (Backer and Carroll, 2000). In Sierra Leone, HROs actively weighed in during the Lomé Peace Agreement negotiations on the proposed Special Court in Sierra Leone to address wartime crimes (Smith, 2013). HROs similarly pressed their governments to include language on criminal accountability in peace agreements in Nepal (Robins, 2011) and Afghanistan (Sajjad, 2013).

These accounts suggest the importance of a robust HRO presence during the peace process to create greater pressure on the negotiating parties. Specifically, we expect HROs to press for formal language on criminal accountability for conflict-era abuses. Leaders routinely avoid adopting judicial responses to human rights abuse that leave themselves vulnerable to punishment (Grodsky, 2010; Nalepa, 2009). HROs thus have the most to gain from securing an explicit commitment to criminal accountability, relative to general commitments to “justice” or non-judicial and symbolic efforts (such as truth commissions or guarantees of non-repetition) which are less threatening to elites.

In turn, as the presence of HROs demanding criminal accountability grows, the government faces a larger constituency to satisfy. Negotiating parties—on both government and insurgent sides—prefer to avoid harsh judicial strategies that could implicate themselves. When demands from a significant portion of civil society are absent, these elites face few costs to fixing a peace agreement position that reflects their immediate interests in favor of immunity. In contrast, when public support for a set of norms is present, official pivots based on political expediency are significantly more difficult (Simmons and Creamer, 2019). A sufficiently strong HRO presence signals that criminal accountability is broadly viewed as legitimate and required, raising the likelihood that negotiating parties will commit to criminal accountability provisions.

H1 (Accountability Hypothesis): Stronger HRO presence is associated with a higher probability of criminal accountability provisions in a peace agreement.

Although we expect a general relationship between HRO presence and criminal accountability, we further theorize about the conditions that yield specific types of criminal accountability provisions. This allows additional empirical tests to help identify where HROs have the greatest chances of influencing the peace process. Indeed, even where well-intentioned HROs are present, they could nonetheless refrain from advocating for aggressive criminal accountability. Human rights organizations that call out human rights violations assume a risk of backlash from political elites, military leaders, and other domestic groups that wish to conceal their misdeeds. Such backlash can be lethal. For example, the activities of the HRO Project to Recover the Historical Memory in Guatemala, which sought to collect 6500 citizen testimonies on wartime human rights abuses, led state-linked armed groups to target and kill human rights activists (Chicago Tribune, 1998).

HRO lobbying is therefore significantly constrained in transitions out of conflict. We consider two conditions that could mitigate these constraints—the ratification of international human rights instruments and the presence of third parties in the peace process—and their implications for specific types of criminal accountability provisions.

Conditions that facilitate HRO advocacy

International law

A state’s ratification of key international human rights instruments could lower the barriers to HRO advocacy during the peace process for at least two reasons. First, although ratification on its own does not guarantee state compliance (Hafner-Burton and Tsutsui, 2005; Hill, 2010), international legal obligations can trigger an indirect enforcement mechanism based on leaders’ fear of damage to reputation or political survival (Conrad and Ritter, 2013; Simmons, 2000). Once a government has made a formal, public commitment to respect human rights, a violation can erode a government’s credibility enough to deter its retaliation against HROs. As prior research shows, even rebel groups are willing to be bound by international human rights law in some cases (Jo, 2015). The pre-existing ratification of a high-profile human rights instrument can indirectly create a safer environment for HROs to operate.

Second, treaty ratification lowers barriers to HRO lobbying by supplying rights advocates with more information and a clear legal rationale for pressuring leaders to fulfill their international legal obligations (Hathaway, 2002; Powell and Staton, 2009; Simmons and Creamer, 2019). International human rights instruments have been particularly effective at catalyzing transnational prosecutions. For example, in the high-profile case against Chile’s Augusto Pinochet, the prior ratification of the Convention Against Torture (CAT) galvanized domestic human rights groups. As monitors and information-providers, these advocates invoked concrete language from the CAT to draw attention to and critique inadequate enforcement (Simmons, 2008). This strategy had important downstream effects. It rallied rights advocates abroad and within Chile, which provided the public momentum for a foreign court to prosecute Pinochet-era abuses and the creation of what would later become the ICC (Sikkink, 2010: 100–106).

Taken together, this literature suggests that treaty ratification could enhance HROs’ advocacy in the peace process through multiple and complementary means. Ratification indirectly reduces the likelihood of retaliation by tying leaders’ hands against abuses and thus providing a safer environment for HROs to press the negotiating parties. At the same time, these instruments offer the social and legal resources for HROs to advocate more effectively, particularly regarding international criminal accountability. We expect an interactive relationship:

H2 (International Law Hypothesis): The association between HRO presence and international criminal accountability provisions is stronger in states that have ratified a key international human rights instrument, compared with states that have not.

Third party mediation

Third parties—external actors that are not direct parties to the conflict—at the negotiation table could also lower barriers to effective HRO advocacy. Third parties help to mitigate commitment problems between warring parties and manage potential spoilers through accommodation or coercion (Beardsley et al., 2019; Matanock, 2020; Walter, 1997). With this power to accommodate, coopt and enforce, third parties potentially create favorable conditions for HROs. International organizations have become more accessible to NGOs and increasingly work side by side to pursue their political goals (Sommerer and Tallberg, 2017; Tallberg et al., 2018). In peace processes, UN mediators and high-profile politicians from guarantor states routinely assist domestic HROs by arranging direct consultations with the negotiating parties where advocates communicate their preferences (Anderson, 2016).

In doing so, these third parties tacitly insulate HROs from retaliation and amplify the political weight of their demands. For example, in a case study of postwar Sri Lanka, Cronin-Furman (2020) demonstrates that the government risked angering domestic political loyalists and paid significant resource costs to respond to pressure from INGOs backed by the UN and Western governments. Research on NGOs’ “naming and shaming” activities also recognizes that the effect of calling out abusive governments is strongest when backed by the UN and prominent leaders (Ausderan, 2014; Murdie and Peksen, 2014; Murdie and Davis, 2012).

Notably, third parties seek to sustain perceptions of their impartiality by supporting agreements that both sides of the conflict will find acceptable (Favretto, 2009). Third parties’ interests in maintaining legitimacy imply that they are likely to support HROs advocating for international criminal accountability provisions, but not necessarily those demanding the domestic prosecutions of specific parties to the conflict. For example, the UN—a common mediator in contemporary intrastate armed conflicts (Greig and Diehl, 2012)—seldom explicitly endorses domestic judicial mechanisms for wartime human rights abuses during peace negotiations. The more common practice is to express tacit approval of international or “hybrid” accountability mechanisms (United Nations, 2008).

To be clear, third parties do not necessarily prefer international criminal accountability to home-grown judicial efforts.² Our claim, instead, is that international efforts are a “second-best” option with a smaller risk of delegitimizing the mediator’s involvement as favoring a particular negotiating party. International criminal accountability implies relatively independent and impartial institutions—those that guarantee broad-based, comprehensive trials, in Loyle and Appel’s (2017) language—compared with a domestic accountability provision. The latter could be costly for external third parties to back if they expect domestic rule of law institutions to be vulnerable to political manipulation, a common feature of the post-conflict environment (Hartzell and Hoddie, 2019). In the presence of third parties, negotiating parties are themselves more likely to yield, ex ante, to HRO advocacy on international accountability for the same reasons. International justice institutions are often perceived as lacking teeth (Ritter and Wolford, 2012), posing less threat to the negotiating parties. In contrast, domestic courts in the post-conflict period can result in “opposition trials” (Loyle and Appel, 2017) that target former or current political adversaries (Kitagawa and Bell, 2022). Third parties can thus assist HRO advocacy at a lower cost when these HROs are pressing for international judicial responses, rather than domestic trials. We therefore expect the following conditional relationship:

H3 (Third Party Hypothesis): The association between HRO presence and international criminal accountability provisions is stronger in peace processes where (impartial) third parties exist, compared with those that lack third parties.

We expect Hypotheses 2 and 3 to hold prior to the ICC beginning its operations. The creation of the ICC fundamentally changes the instructive structure for HROs: it reduces HRO incentives to expend costly resources to advocate for a separate international court provision in a peace agreement. It follows that the moderating roles of international law and third parties regarding international criminal accountability should also diminish. We therefore test the international law and third party hypotheses on a sample of peace agreements between 1991 and 2003.

Case illustrations: Burundi and Colombia

Before turning to a large-N analysis, we illustrate the theory through two concrete cases: the peace processes in Burundi (1998–2000) and Colombia (2012–2016). The internal armed conflicts in these countries were distinct from one another in their duration, intensity of violence, and salience of ethnic cleavages; these states are also dissimilar in regional, economic, and political profiles. Yet their peace processes share similar patterns of HRO activity and outcomes that are central to our theory.

Human rights organizations in Burundi enjoyed strong numbers during the peace process, allowing a coalition of prominent international and domestic HROs³ to catch the ear of negotiating parties and influential stakeholders. The HROs applied pressure on the Burundian government by signaling that they could bring thousands of rights advocates onto the streets if their demands were not heard (Linekar, 2018: 11). As a result, although Burundi strongly preferred to avoid transitional justice, it granted a formal role for HROs in the July 2000 negotiations. The final Arusha Accord included more than half of the HROs’ recommendations from the conference (Ndikumana and Sebudandi, 2012). Chief among them were provisions committing to the establishment of an international commission of judicial inquiry and an international criminal tribunal.⁴

Prior government commitments to high-profile human rights instruments were vital. Women’s rights organizations invoked specific language from the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of Discrimination against Women to rally against impunity, particularly for sexual violence.⁵ These instruments legitimized their place in the peace process and trained the focus of diverse HROs’ campaigns on a common set of principles (Anderson, 2016: 71).

The HROs also benefited from third party support in gaining access to the negotiating parties. Although civil society actors were active from the beginning of the war, they struggled to organize and wield any genuine pressure (Daley, 2007). Things changed as the UN stepped in. It arranged for the HRO coalition CAFOB (Collectif des Associations et ONGs Féminines du Burundi) and its domestic member groups to directly brief the negotiators and other powerful stakeholders, including the African Union (Burke et al., 2001). Third parties also tacitly provided protection from backlash by elites that did not look favorably on rights advocates using backroom diplomacy. Politicians from Uganda, Rwanda, and Tanzania publicly pressed negotiating parties on why more civil society members were not represented in the peace talks (Daley, 2007: 342–343). Such third-party facilitation allowed HROs to reach and exert greater pressure on the negotiating parties to enshrine criminal accountability in the agreement.

The Colombian peace process featured similar patterns of HRO activity. Although the negotiating parties had initially not given much weight to public demand for justice, civil society’s rallying cry of nunca más (“never again”) increasingly influenced the course of the negotiations (Laplante and Theidon, 2006). Faced with growing public pressure, the negotiating parties opened participation to the public. Sixty victims represented different regions and organizations at the peace talks in Havana; some 3000 people weighed in on the peace agreement terms through UN-led forums around the country, and the government received an additional 17,000 proposals.⁶ The sheer volume of public demands for justice, driven by HROs, significantly raised the political costs of sidestepping the issue of criminal accountability.

HROs engaged in “popular jurisprudence”, using international legal standards to shape negotiations of accountability provisions. When draft provisions were viewed as inadequate in early rounds of negotiations, local rights groups and INGOs like Human Rights Watch and Amnesty International pointed out inconsistencies (Laplante and Theidon, 2006). Importantly, they directly invoked the ICCPR and related human rights law, making the legal nature of the agreement central to the negotiations (Rojas-Orozco, 2021). The resulting 2016 agreement contained many provisions rooted in international legal standards on human rights.

As in Burundi, third parties served critical functions for HROs. The UN Monitoring and Verifying Observer Mission, an official mediator, coordinated with HROs to organize visits of victims’ delegations to participate in peace talks, with a specific focus on justice and reconciliation (Nylander et al., 2018: 7–8). Similarly, Norway, a long-standing guarantor, helped to establish the so-called “New York Group”. This informal coalition of international and domestic NGOs strategized on the design of accountability provisions that negotiating parties would potentially agree to (Nylander et al., 2018: 6). The final accord ultimately committed to a novel transitional justice architecture with a strong criminal accountability component, the Tribunal para la Paz.

The peace processes in Burundi and Colombia reflect the crucial role of large coalitions of HROs that tapped into a wide-reaching INGO network to pressure negotiating parties. Moreover, HROs across both cases actively invoked international human rights law to press for concrete language on criminal accountability. They also relied on assistance from influential third parties to access key consultations and legitimize their presence in the peace process. Although we do not assess whether certain types of resources provided by third parties are more important than others, the cases illustrate concrete ways in which they enhance HROs’ chances of swaying the negotiating parties.

Research design and data

We test our hypotheses using cross-national datasets on the content of peace agreements, HRO member presence, international human rights treaty ratification, and third parties.

For the peace agreements, we use the PA-X Peace Agreements Database and Dataset (Bell and Badanjak, 2019; Bell et al., 2021). The dataset provides comprehensive information on the specific provisions contained in all peace agreements that were signed since 1990, regardless of the phase of the conflict.⁷ The granularity of data on the content of peace agreements—including whether the agreement contains a formal provision on criminal accountability—makes this dataset best suited to testing our hypotheses.

Our unit of analysis is the intrastate conflict peace agreement. We restrict our sample to peace agreements for intrastate conflicts in which the government is one of the parties of the conflict.⁸ Further, we assigned each agreement to a specific state. Although most cases involve a single state, 4.7% of our sample addresses internationalized intrastate conflicts with more than one state party to the agreement; in these cases, we code the state as the country in which the conflict occurred.⁹ We test the accountability hypothesis using a sample of peace agreements between the years 1991 and 2012, the full range of available data (after lagging relevant independent variables). We test the international law and third party hypotheses using a sample restricted to the pre-2003 period, prior to the ICC seating judges and beginning its operations.

Dependent variables

Our main outcome of interest is the inclusion of a substantive provision regarding prosecutions of perpetrators of crimes committed during the conflict. We construct three indicators for this outcome from the PA-X data.

Our main court provision variable is binary, indicating whether a peace agreement includes a provision that contains a “substantive” or “strong” commitment to judicial accountability for acts committed during the conflict, either through a domestic or an international court. The original PA-X data has a categorical indicator of references to a court within a peace agreement: no reference, a “rhetorical reference”, a “substantive reference” or a “strong reference” (Bell et al., 2021: 65–66). A weak rhetorical reference consists of “a call of action … without indication on how to address this issue” or a commitment to address the issue in future negotiations (Bell et al., 2021: 65). Substantive references “provide for a specific set of actions, measures, or institutions” and strong references further describe “the adoption of mechanisms with detailed modalities, or strong unusual provisions that are tailored to the specific context” (Bell et al., 2021: 65). We code 1 for cases that contain a “substantive” or “strong” reference, and 0 otherwise. Online Appendix II contains example excerpts of these court provisions.

Tests of the international law and third party hypotheses use two binary indicators from the PA-X data, international court and national court. Each measure takes a value of 1 if the peace agreement contains a court provision that includes “a clear mention of a national (or international) court having jurisdiction” over the criminal accountability process (Bell et al., 2021: 67).

Independent variables

Recall that our main explanatory factor is the strength of the HRO presence. Although HROs are sometimes granted a formal mediator or observer status in the peace process, this is rare. In the more typical scenario, HROs engage in informal consultations on particular aspects of the peace agreement without a formal role (Bell and O’Rourke, 2007; Dayal and Christien, 2020).

Our main independent variable, HRO members, captures this broader presence of HROs during peace negotiations. Using the Transnational Social Movement Organizations Dataset, we identify the number of distinct international HROs that have members operating on the ground in a given country-year (Smith and Wiest, 2005; Smith and Wiest, 2012; Smith et al., 2020). Specifically, we generate a count of INGOs that focus on human rights goals (“hrights” in their coding) and have a domestic membership base within each state. Values range from 4 to 461 in our sample, with a mean of 115 HROs. To address the skewness of the variable, we use the natural log of the count measure, following common practice (e.g. Murdie and Davis, 2012).¹⁰ HRO members is lagged by one year.

For the international law hypothesis, we use data from von Stein (2017) on whether a given state has previously ratified the CAT and the ICCPR. These major international human rights instruments speak to rights abuses that transitional justice prosecutions commonly target. Both CAT and ICCPR variables are binary, taking a value of 1 if the state has ratified the instrument, and 0 otherwise.

For the third party hypothesis, we generate additional variables from PA-X. UN signatory is a dichotomous measure of whether the UN was a signatory to the agreement. Other signatory is a dichotomous measure indicating whether any other international third party actor is a signatory. This includes any international actor (such as representatives of a foreign government or international and regional organizations like the African Union) that helps the parties to address the dispute or manage the level of violence.¹¹

Modeling strategy and control variables

We estimate a series of probit models that regress each of our three provision variables on the relevant independent variables and with robust standard errors clustered on the country. Each model includes a set of peace agreement-level and state-level covariates.¹²

At the peace agreement level, we control for the length of agreement in pages, since longer documents are more likely to contain content on criminal accountability. Ceasefire is a binary measure, coded 1 for ceasefire agreements, and 0 otherwise.¹³ Both measures are from PA-X.

At the state level, we control for factors that likely affect demand for a criminal accountability provision. The latent judicial independence measure is from Linzer and Staton (2015); states with relatively strong, independent judiciaries at the time of a peace agreement suggest lower HRO demand for an explicit provision on courts. (We later substantiate this claim by analyzing the marginal effects of HRO presence at different levels of judicial independence.) Physical integrity rights is the latent variable of human rights protections from Fariss (2014), where higher values indicate greater levels of respect for physical integrity rights. Polity2 is the imputed score from Polity IV (Marshall et al., 2018).

We also control for the potential diffusion of human rights norms across states. As norms diffuse across states (Finnemore and Sikkink, 1998), the acceptance of criminal accountability elsewhere could increase confidence that global norms about transitional justice are locally relevant.¹⁴ This could induce states to model their own peace agreements on those adopted in the same region. Each model thus includes a spatial variable, neighboring courts provision, a binary indicator of whether any neighboring state, or state within 400 miles by water, adopted a peace agreement with a court provision in the prior year.¹⁵ Neighboring is specific to the international or national court provision in models that test the conditional hypotheses.

All state-level variables are lagged one year. We also conduct a series of robustness checks with additional control variables, discussed in Online Appendix IV, Table A4. ¹⁶

Results

Accountability hypothesis

Table 1 Model 1 reports the results for a probit model regressing court provision on HRO members and covariates. In line with the theory, HRO member presence has a positive and statistically significant association with the likelihood of a criminal accountability provision. A one standard deviation increase (2.26) in the number of HRO members increases the predicted probability of a criminal accountability provision from 1.8% to 4.7%. This first difference of 2.8% is statistically significant at the 0.05 level.¹⁷

Table 1.

Human rights organization (HRO) members and court provisions.

	Model 1	Model 2
HRO Members _t ₋₁	0.358**	0.961***
	(0.163)	(0.339)
Judicial Independence _t ₋₁	−0.714	8.329**
	(0.803)	(3.836)
HRO × Judicial Independence		−1.829**
		(0.813)
Polity2 _t ₋₁	0.008	0.007
	(0.032)	(0.030)
Physical Integrity Rights _t ₋₁	0.067	0.042
	(0.134)	(0.132)
Neighboring Courts Provision _t ₋₁	0.410**	0.433**
	(0.210)	(0.211)
Ceasefire	0.226	0.249
	(0.266)	(0.274)
Length	0.011***	0.011***
	(0.003)	(0.003)
Constant	−3.660***	−6.580***
	(0.730)	(1.552)
Log pseudolikelihood	−71.21	−69.86
Observations	931	931

Robust standard errors clustered on country in parentheses.

* p < 0.1; ** p < 0.05; *** p < 0.01.

The coefficient on neighboring court provision is also positive, and significant at the 0.05 level. This suggests that the adoption of a criminal accountability provision is partly driven by regional learning, but HRO presence remains a strong predictor.

We further probe this finding with a second test. The theory underlying the accountability hypothesis implies that HRO incentives to push for criminal accountability provisions will weaken with growing judicial independence, regardless of regional diffusion of accountability norms. In contrast, where existing domestic judicial institutions are prone to political influence, HROs have a stronger interest in lobbying for a criminal accountability commitment. This could involve international criminal accountability (seeking independent accountability from the outside in) or the creation of a specialized domestic court that bypasses flaws in the national justice system (e.g. the Court for Peace in Colombia and the Specialized Criminal Chambers in Tunisia were created as dedicated domestic courts of transitional justice to adjudicate cases of gross human rights violations).

As an extension of Hypothesis 1, we evaluate whether a criminal accountability provision in a peace agreement is more likely where the existing domestic judicial system is beholden to political interests. Table 1 Model 2 reports this additional model interacting HRO presence with latent judicial independence. Figure 1 plots the marginal effects across varying levels of judicial independence.¹⁸ Consistent with our logic, HRO presence produces a higher probability of a criminal accountability provision at low levels of judicial independence, whereas this association diminishes as independence increases. These patterns are consistent with and lend additional support to the accountability hypothesis.

Figure 1.

The marginal effects of a two standard deviation increase in HRO presence on inclusion of a court provision at different levels of latent judicial independence; 95% confidence intervals shown. Marginal effects are estimated from Table I (Model 2).

As further robustness checks, we estimate two separate models using the inclusion of an amnesty provision and a provision committing to truth and reconciliation efforts as dependent variables. Both models produce null results (Online Appendix IV, Table A5). This tentatively suggests that the connection between HRO presence and justice provisions is specific to criminal accountability, and not transitional justice policies in general.

International law and third party hypotheses

We next test the conditional hypotheses. The analyses below use a subset of the sample covering the pre-ICC operational period. Turning to the international law hypothesis, Table 2 reports the results of probit models that interact HRO members with prior ratification of the ICCPR and CAT. Recall that the conditional hypotheses are specific to international criminal accountability provisions in a peace agreement. We disaggregate the dependent variable into international (Models 3 and 4) and national court provisions (Models 5 and 6). All models include the full set of covariates: judicial independence, physical integrity rights, polity2, length of agreement, ceasefire, and neighborhood court provision (full results of coefficients are reported in Online Appendix III).

Table 2.

Treaty interaction terms—pre-ICC. Models include all covariates (full results are provided in the Online Appendix).

	International Court Model 3	International Court Model 4	National Court Model 5	National Court Model 6
HRO Members _t ₋₁	−0.992***	−1.177***	0.199	0.105
	(0.298)	(0.368)	(0.248)	(0.390)
ICCPR	−4.234***		−0.537
	(1.265)		(0.812)
HRO × ICCPR	1.344***		−0.044
	(0.338)		(0.218)
CAT		−4.668***		−0.340
		(1.286)		(1.358)
HRO × CAT		1.513***		0.055
		(0.397)		(0.371)
Constant	0.095	0.748	−2.285**	−2.292
	(1.186)	(1.147)	(1.101)	(1.566)
Log pseudolikelihood	−32.05	−31.33	−75.60	−79.76
Control variables	Yes	Yes	Yes	Yes
Observations	658	658	658	658

Robust standard errors clustered on country in parentheses. CAT, Convention Against Torture; ICC, International Criminal Court; ICCPR, International Covenant on Civil and Political Rights.

* p < 0.1; ** p < 0.05; *** p < 0.01.

The interactions with the ICCPR and CAT, respectively, have a significant and positive association with the inclusion of an international court provision (Models 3 and 4). Neither ratification conditions HROs’ abilities to secure a national court provision (Models 5 and 6). For a substantive interpretation of the interaction terms, Figure 2 plots the marginal effects of a two standard deviation increase in HRO presence on international court provisions by ratification status.¹⁹ These results lend strong support to the international law hypothesis.²⁰

Figure 2.

Marginal effects of a two standard deviation increase in HRO presence on inclusion of an international court provision, by state ratification status of major human rights instruments; 95% confidence intervals shown. Marginal effects are estimated from Table 2 (Models 3 and 4).

We repeat the procedure to test the third party hypothesis. Table 3 reports the results of probit models that include interactions between HRO presence and each type of third-party signatory. The results suggest that the conditional effects of third parties are specific to international, and not national, court provisions. UN participation significantly increases the positive association between HRO presence and international court provisions (Model 7). The coefficient for the interaction term between HRO presence and “other” third parties is also positive, although not statistically significant (Model 8). In contrast, we find no evidence of a conditional effect of UN presence on HROs’ abilities to secure a national court provision (Model 9). In fact, it is in the absence of non-UN third parties that HRO presence predicts a higher likelihood of this provision type (Model 10), a result we return to discuss.

Table 3.

Third party interaction terms—pre-ICC. Models include all covariates (full results are provided in the Online Appendix).

	International Court Model 7	International Court Model 8	National Court Model 9	National Court Model 10
HRO Members _t ₋₁	−0.020	−0.011	0.151	0.304**
	(0.164)	(0.184)	(0.150)	(0.150)
UN Signatory	−7.885***		−0.074
	(2.069)		(0.640)
HRO × UN	1.766***		0.051
	(0.474)		(0.167)
Other Signatory		−1.276		2.039**
		(1.623)		(0.929)
HRO × Other		0.369		−0.488**
		(0.382)		(0.196)
Constant	−2.440***	−2.696***	−2.618***	−3.186***
	(0.509)	(0.569)	(0.683)	(0.732)
Log pseudolikelihood	−34.14	−34.88	−79.73	−77.45
Control variables	Yes	Yes	Yes	Yes
Observations	658	658	658	658

Robust standard errors clustered on country in parentheses.

* p < 0.1; ** p < 0.05; *** p < 0.01.

Figure 3 plots the marginal effects of HRO members on international court at different levels of third party involvement. A UN signatory significantly increases the positive association between HRO presence and international criminal accountability provisions, whereas the marginal effect is virtually zero without the UN. ²¹

Figure 3.

Marginal effects of a two standard deviation increase in HRO presence on inclusion of an international court provision, by third party signatory status; 95% confidence intervals shown. Marginal effects are estimated from Table 3 (Models 7 and 8).

The results together lend moderate support for the third party hypothesis. Human rights organizations achieve greater agenda-setting success when the UN, an impartial third party, is a formal participant, but not when the peace process is exclusive to the warring parties. This result aligns with previous findings that international organizations provide favorable venues for INGOs to enter policymaking processes (Sommerer and Tallberg, 2017). The null result for non-UN third parties may be because the “other” third party category in the PA-X data captures a diverse set of actors, with potentially heterogeneous preferences about HRO participation or transitional justice.

Discussion

The analysis provides two key patterns consistent with our theory. First, we find robust support for the accountability hypothesis: a stronger HRO member presence during the peace process predicts a significantly higher likelihood of a substantive criminal accountability provision in a peace agreement. This association is greatest when domestic judicial institutions are relatively weak, suggesting a scope condition for the results.

Prior research notes the importance of regional responses to global norms (Acharya, 2004; Finnemore and Sikkink, 1998). On this view, the diffusion of norms against impunity induces states emerging from conflict to model their own peace agreements on those already implemented by regional states. Our claim is distinct from this story, but not mutually exclusive. Although the diffusion of criminal accountability norms matters, the local interests of the negotiating parties are also important. Given a large HRO presence demanding criminal accountability, a provision (or lack of one) motivated by pure political expediency is harder to defend, making it more likely that the parties will commit to a court provision at a lower cost. Empirically, as shown in Table 1, the HRO presence result is robust to accounting for spatial diffusion. In a supplementary analysis in Online Appendix IV (Table A4) we also consider the possibility that accountability norms are taking root subnationally, by controlling for earlier state experiences with trials for rights abuses. The results remain unchanged.

Second, the evidence highlights the crucial moderating roles of international law and third parties. The CAT and ICCPR results echo previous findings about the highly conditional effects of human rights treaties. Although treaty ratification is rarely sufficient to induce changes in government behavior, it provides a resource for rights advocates to generate pressure on more powerful actors (Hafner-Burton and Tsutsui, 2007; Jo, 2015; Simmons and Creamer, 2019). Complementing the literature on third party mediation, our results also suggest that impartial third parties, namely the UN, supply a background condition that helps HROs to place criminal accountability on the agenda. The marginal effects of HRO members are specific to international, rather than national, court provisions, speaking to a nuanced relationship between HROs and the content of peace agreements.

Although our third party hypothesis is specific to international criminal accountability provisions, one notable result (which our theory does not predict) is that the absence, rather than presence, of a non-UN third party strengthens the association between HRO presence and a national court provision (Table 3, Model 10). A possible interpretation is that certain third parties, such as foreign governments, bring their own preferences against domestic prosecutions to the negotiations. Neighboring countries are often drawn in as mediators when the conflict threatens broader regional security (Beardsley and Lo, 2013). Yet such mediation attempts could also be driven by national interests (Corbetta, 2014), which might include preventing conflict spillover into the mediator’s own state, or hindering a precedent of foreign meddling with domestic judicial processes. Such interests would favor the exclusion of a national court provision. As previous research demonstrates, biased mediators decrease their likelihood of pursuing aggressive negotiation strategies (Gent and Shannon, 2011). Because non-UN third parties are not homogeneous, whether they facilitate or hinder HRO advocacy on transitional justice may depend on the specific identity of the third party.

Our findings have several implications for future research. First, disaggregating the nature of HRO participation could yield additional insights. Case studies illustrate the diversity of HRO lobbying methods around peace agreements, ranging from informal to formal methods (Brannon and Best, 2022; Dayal and Christien, 2020). Important advocacy efforts often occur on the sidelines, through what Anderlini (2007) calls “corridor lobbying”—a term taken from Liberian women’s groups that would catch negotiators in the corridors during the Accra peace talks—or public appeals in the media (Meyer et al., 2018). In other instances, HROs obtain a formal seat “at the table”, as in Colombia (Laplante and Theidon, 2006) or Northern Ireland on the eve of the Good Friday Accords (Anderlini, 2007). The specific forms of advocacy (and the conditions that make it possible) potentially moderate HROs’ agenda-setting abilities. For example, formal participation might confer more public visibility upon HRO demands and thereby increase the pressure on negotiating parties to accommodate them.

Second, our evidence suggests that the strategic preferences of certain third parties, particularly non-UN signatories, may set critical bounds on HRO advocacy during the peace process. Mediators have heterogeneous preferences about civil society participation and transitional justice, which arguably threaten these actors’ own interests. Future work could investigate the likelihood of HRO success in the presence of different types of third parties. The conditional relationship between HROs and third parties is also specific to the period before the creation of the ICC, which we argued changes the incentive structure of HROs’ lobbying around international criminal accountability. (Our results on the main accountability hypothesis cover the full range of years through 2012.) Other changes in global institutional factors—such as the creation of new human rights instruments, like the International Convention for the Protection of All Persons from Enforced Disappearances, which entered into force in 2010—might fundamentally alter the nature and influence of HRO advocacy during peace talks.

Lastly, our evidence reveals that HRO presence does not affect all criminal accountability provisions in a uniform way. This speaks to a broader challenge faced by HROs in conflict settings. Certain kinds of provisions, such as international justice efforts that lack direct enforcement mechanisms, may win favor among elites more easily. In contrast, provisions that envision a dramatic shift in domestic judicial institutions pose significant risks to warring parties. Because domestic courts can serve political trials that target former rivals (Kitagawa and Bell, 2022; Loyle and Appel, 2017), negotiating parties may be less likely to officially commit to national criminal accountability during the peace process when there is significant uncertainty about who will wield influence over the courts in the post-conflict period. HROs might therefore have to make strategic tradeoffs between lobbying for accountability provisions with high impact vs. those that face fewer barriers to placing on the agenda. The determinants of HRO advocacy strategies are a crucial area for future inquiry.

We focused on criminal accountability, a central pillar of post-conflict transitional justice with high returns for HROs. A critical question for future research, which we do not fully address here, regards the conditions under which HRO advocacy leads to provisions on other justice efforts. Although we do not find a significant association between HRO presence and provisions on either amnesty or truth and reconciliation efforts (Online Appendix IV), this study lays the groundwork for further theorizing on commitments to truth commissions, investigations into the disappeared, official apologies, and reparations. Overall, our findings demonstrate the value of disaggregating the contents of a peace agreement, helping to explain why some policies make the agenda, while others are sidelined. These formal provisions are important: they set the stage for wide-reaching institutional and policy reforms in the post-conflict period.²²

Conclusion

This article investigated the conditions under which HROs can secure provisions on transitional justice in a peace agreement—a milestone that sets the national agenda after conflict. Using global data on peace agreement provisions, we demonstrated that the presence of HROs significantly increases the likelihood of an explicit commitment to criminal accountability for acts committed during conflict. Yet this association hinges on broader factors that we argued lower the barriers to HROs’ effective advocacy: the state’s ratification of international human rights instruments and (impartial) third parties in the peace process.

These findings contribute to the study of civil society in human rights advocacy and the growing quantitative scholarship on transitional justice addressing widespread violence. To date, this literature has focused on how civil society actors mobilize the broader public around human rights norms (e.g. Keck and Sikkink, 1998; Murdie and Bhasin, 2010) and create momentum for trials in democratizing states (e.g. Dancy and Michel, 2016; Kim, 2012). Yet few theories exist on these actors’ functions during a peace process. Peace processes are significant. They open unique “windows of opportunity” (Anderson, 2016) for non-state actors to sway political elites and serve as a critical juncture for the long-term trajectory of key institutions after conflict. By focusing on the relationship between HROs and the substantive content of peace agreements, this article reveals a novel pathway through which rights advocates exercise influence over the national agenda on post-conflict justice.

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Footnotes

Acknowledgements

We are very grateful to two anonymous reviewers and the editor for their insightful feedback. We also thank Karina Mross, Charlotte Fiedler, and Bård Drange for helpful exchanges in early stages of this project.

Declaration of conflicting interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The authors received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Risa Kitagawa

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Notes

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