Throughout history, the end of wars has required negotiations between the warring parties. The most prominent negotiation being the Westphalian Peace Settlement that ended the Thirty Years War [1618-1648] that had desolated Europe. The settlement comprised three treaties which are considered by many jurists to have birthed the international legal system. Confronting a state of perpetual war, the parties to Westphalia negotiated the conditions in which they could agree to cease their hostilities and enter peaceful relations.
The contemporary importance of Westphalia is that it established two fundamental principles that are now codified in the Charter of the United Nations: sovereign equality and territorial integrity. As most can probably surmise, these principles were intended to have anti-hegemonic effect. However, in reality they enabled superpowers to emerge as a result of ‘radical inequalities among states in size, wealth, and power in international role’. This is evidenced in the composition of the UN Security Council, exemplified by the five permanent States that hold veto power that they can and do use for their own political ends.
Admittedly, although negotiations have ended past wars, the Iraq (and similarly Syria) war is more complex. Firstly, IS is not a State in any formal sense despite their assertion to the contrary. Secondly, it is a civil war not a war where one sovereign State agresses against another equally sovereign State threatening their territorial integrity. It is in this context, that the do not negotiate with terrorists (DNNWT) rule arises.
Whether the DNNWT rule has acquired customary status, I am unsure, but a good case could probably be made given it’s widespread acceptance among States and the clear evidence of State practice. Additionally, it would be consistent with the Vienna Convention on the Law of Treaties principle that a treaty must be concluded between States in order to achieve international legal standing. As terrorist designated organisations are not States, then no internationally binding treaty with IS could ever be legitimately concluded, unless they were to be recognised as a State (which would bring with it a very complex and contentious set of considerations). However, there is always the possibility of a domestic treaty negotiation situation.
However, the DNNWT rule serves both the anti-hegemonic and hegemonic agendas. For the reason that, it protects the sovereign equality of States, but it also allows superpowers to heavily influence the direction of international security policy and to dictate who are legitimate resistance groups according to their own political and economic interests. This might seem reasonable when limiting the scope of discussion to IS given the heinous atrocities that form the basis of their resistance strategy. But the implications extend further than those groups. It is not difficult to conceive of a circumstance when internal resistance might be necessary, such as, when a society is ruled under a violent dictatorship. For instance, many (contentiously) see the resistance of the Free Syrian Army as a justifiable belligerent act against their autocratic government and some States were prepared to support the FSA despite their lack of legal standing at international law.
The logic of the DNNWT rule seems perfectly reasonable. In order to protect the political sovereignty of a nation, the obvious strategy is to refuse to allow a belligerent militia to influence the decision making of that State. Of course, there are times where that logic is stretched beyond what is reasonable. Recalling Prime Minister John Key’s assertion that not going to war with IS was essentially allowing them to interfere with New Zealand’s political sovereignty. Absurdity abounding on the very fact that his decision to deploy troops to Iraq comes off the back of pressure from other nations that New Zealand cannot simply be a passive ally. Moreover, that doing nothing or doing what the government have decided to do are both decisions based on the influence of IS.
On the other hand, ruling out negotiations, as mentioned above, removes the very process by which conflict could ever hope to be resolved with enduring peace. I’m not so naive as to think that negotiating with IS would immediately resolve the long history of religious tension within Iraq and its surrounding regions. Nor am I suggesting that IS would even be willing participants to negotiate a resolution. However, eliminating the option arguably casts us back almost 400 years to once again face the reality of a perpetual war. Sheldon Richman also alludes to the perpetuity of war arguing that when governments invade and occupy other countries, or ‘underwrite other governments invasions or oppression, the people in the victimised societies become angry enough to want and even to exact revenge’. I’m certainly not convinced that raining hell fire over Iraq and areas controlled by IS will bring about any solution at all.
Similarly, Dr Jeremy Moses (Senior Lecturer, UCNZ) tweeted:
“…there are no good outcomes from [the] Iraq situation. [The] [r]ole of NZ can be nothing more than a favour to the US…NZ will have no material impact on what will be a long, brutal battle for Mosul. And even if IS falls, what then? No-one knows”
And before someone calls me an IS apologist, this is not about defending IS at all. To make that claim is both lazy and unintelligent. As humans in common, we all have an interest in avoiding the spread of hate and unnecessary death. We all have an interest in avoiding a world in which fear is normalised and the quality of our lives debilitated. We cannot pontificate under the pretence of ‘the others’ intolerance when our governments commit or support other governments that commit equally heinous crimes.
Richard Jackson makes the point much better:
…what counts as cruelty and barbarism in war is shaped by our cultural values and historical context. Objectively, it is perverse to insist that burning a man to death with petrol is a greater moral evil than using munitions like phosphorous bombs in military operations which we know will burn a great many innocent people to death, including children. It is the nature of every society however, to point out the cruelty of the enemy while obscuring the cruelty of one’s own actions.
John Key has insisted that the New Zealand must join the club and choose the ‘right side’.He has made the executive decision that New Zealand will deploy troops to Iraq. That does not mean Aotearoa supports him in his crusade. Contrary to the PM’s suggestion that New Zealand’s contributions must exist on some kind of binary – sending troops versus doing nothin, we can meaningfully contribute to improve the lives and outcomes of Iraqi’s through genuine humanitarian aid while finding a way to open dialogue between IS and the Iraqi government. For instance, New Zealand could consider relaxing our refugee quota, sending food and water, medical supplies and unarmed medical personnel rather than exporting guns, bombs, drones and people armed with what is ultimately a violent mission.
Expanding the war in Iraq will surely aggravate the incapacitating conditions that Iraqi peoples already endure. That is not help, that is hindrance. It is insane that our governments (NZ and abroad) support the export of violence to an area already riddled with instability and fear under the illusion that foreign arms will introduce peace amid the chaos. It’d be good if foreign policy wonks realised that peace is not something you can just bomb into existence.
 The Peace of Westphalia comprises three treaties, namely, the Peace of Münster, the Treaty of Münster and the Treaty of Osnabrück see Anuschka Tischer “Peace of Westphalia (1648)” in Oxford Bibliographies online < http://www.oxfordbibliographies.com/view/document/obo-9780199743292/obo-9780199743292-0073.xml>.
 Charter of the United Nations, arts 2(1) and 2(4).
 Richard Falk “Revisiting Westphalia, Discovering Post-Westphalia” (2002) 6(4) The Journal of Ethics 311 at 314-317
 Vienna Convention on the Law of Treaties, art 2(1).
 Sheldon Richman “Domestic Fear Is the Price of Empire” Free Association: Proudly Delegitimizing the State since 2005 (25 February 2015) < http://sheldonfreeassociation.blogspot.co.nz/2015/02/domestic-fear-is-price-of-empire.html>.
 @jeremy_moses <https://twitter.com/jeremy_moses/status/570669388245962752>.
 Richard Jackson “IS and the Barbarism of War” RICHARDJACKSONTERRORISMBLOG (12 February 2015). < https://richardjacksonterrorismblog.wordpress.com/2015/02/12/is-and-the-barbarism-of-war/>.