Home > A Westphalian Peace for the Middle East
Monday, October 10, 2016
A Westphalian Peace for the Middle East
Why an Old Framework Could Work
Michael Axworthy and Patrick Milton
MICHAEL AXWORTHY is Senior Lecturer and Director of the Centre for Persian and Iranian Studies at the University of Exeter, United Kingdom.
PATRICK MILTON is a Postdoctoral Research Fellow at Free University of Berlin.
The ideas in this article are drawn from a project to explore ways in which the Peace of Westphalia can inform peacemaking in the contemporary Middle East. This project was launched by Brendan Simms and ourselves at the beginning of 2016 under the aegis of the Cambridge Forum for Geopolitics, and will be taken forward from this autumn in association with the Koerber Stiftung in Berlin.
Between 1618 and 1648, central Europe, and the Holy Roman Empire in particular, was devastated by a series of conflicts that were caused by competing visions of political order, great power, and dynastic rivalries, and that were exacerbated by religious differences. This soon came to be called the Thirty Years’ War. But the Peace of Westphalia, which successfully ended the German phase of the conflict, has been much misunderstood.
The 1648 settlement is widely thought to have inaugurated a modern system of sovereign independent nation-states in Europe (often referred to as the Westphalian system). And, as the argument goes, when that concept was later applied to the Middle East after the fall of the Ottoman Empire, it actually contributed to much of the region’s current dysfunction. But in reality, the Westphalia settlement did something quite different from what has been commonly thought. It set up a system of limited sovereignty for the numerous states of the Holy Roman Empire (formally known as imperial estates, which were the component territories of the empire, ruled by princes or city councils). It also created legal mechanisms for settling disputes and offered mutual guarantees for upholding the treaty’s terms, which taken altogether, formed a system of collective security.
Correcting this mischaracterization is not only important for our understanding of modern conflicts in the Middle East, but also for finding ways to end them. Westphalia can be used, not as a blueprint for a new treaty for the region, but rather as a guide and a toolbox of ideas and techniques for negotiating a future peace.
THE REAL WESTPHALIA
The Thirty Years’ War began with a rebellion by Protestant nobles in Habsburg Bohemia (the present-day Czech Republic) against the centralizing policies of the Habsburg Emperor Ferdinand II (who reigned from 1619-37), which were disadvantageous for non-Catholics. The war spread from the Habsburg lands and engulfed large parts of Germany after the elector-Palatine (the ruler of a substantial Protestant territorial state and also a feudal subject of the emperor) decided to accept the Bohemian crown, which the rebels had wrested from Ferdinand. Faced with this more serious, larger-scale revolt, which threatened the stability of the empire as a whole, Ferdinand received aid from both Catholic and Protestant German powers like Bavaria and Saxony, as well as from his Spanish Habsburg cousins. His Protestant opponents in the empire, meanwhile, drew support from foreign powers of both confessions: Denmark, Sweden, and Catholic France. These successive foreign interventions prolonged the war and made it much more destructive.
The fundamental problem behind the war was competing visions of constitutional balance, which occurred on two levels: between the prerogatives of the emperor and those of the princes, as well as between the princes (including the Habsburg emperor as an imperial estate) and their respective subject populations within their territories. The question of confessional balance, and of how the divisions caused by the Reformation should be managed and accommodated by the imperial constitution, was intertwined with both of these issues.
The final settlement of Westphalia consisted of three main elements: a reformed imperial constitutional–political system; related to this, a revamped religious settlement for the empire; and an international peace treaty between the Holy Roman Empire and the principal European belligerents, France and Sweden. Although it took five years, the eventual success of the peace negotiations at the Westphalian congress towns of Münster and Osnabrück was due in no small measure to the participation of most imperial estates. An all-inclusive summit of this scale was unprecedented at the time and it was the willingness of the participants to explore unknown diplomatic terrain that helped it succeed. This made it a “universal” congress, and allowed for a settlement that was satisfactory to all members of the empire. The role of informal discussion among the envoys and dignitaries in developing more formal structures, and eventually, treaty provisions, was important to the success of Westphalia. Also vital was the late arrival on the scene of a core grouping of princes from both religions who were prepared to compromise and who acted as informal mediators between the emperor and foreign crowns. Such a cross-confessional party was unprecedented and greatly propelled the peace process forward in its final phase. The participation of the imperial princes to the peace process in 1647–48 resulted in an ultimatum to the emperor Ferdinand III, who reigned from 1637–57, forcing him to reach a settlement or risk losing their support entirely. This intervention occurred at a crucial moment when the congress risked complete collapse as it had become clear that the Spanish–French peace accord, which was also being negotiated, would not be achievable at Münster. (It was only concluded much later, in 1659.) The intervention of this “third party” thus ensured that, although a universal peace accord would be unattainable, peace would be secured in the crucial central European theater of the empire.
The inclusion of the imperial estates in the peace process also shifted the constitutional balance of power between the emperor and the princes in the treaty text. One of the compromises in the treaty involved confirming the princes’ “territorial superiority,” or political autonomy, as well as their rights to participate in decisions on major imperial policy areas, conclude alliances with other imperial estates and foreign powers, maintain armies, wage war, and make peace. But a crucial caveat was that the princes could not forge alliances (as they had done during the Thirty Years’ War) that would be directed against the emperor, the empire, or the peace settlement. The princes remained subjects of the emperor, who retained his power as their feudal and judicial overlord. Similarly, the empire and its supreme courts retained judicial oversight and jurisdiction over the princely territories. The common view that Westphalia created a system of equal, sovereign states that were immune from intervention in their domestic affairs is thus fallacious—all the more so given the treaties’ hollowing out of the princes’ previously extensive prerogatives in religious affairs, and the right established at Westphalia for external guarantors to intervene in the empire.
The true diplomatic masterstroke of the peace settlement was its adjusted religious constitution, which improved the “juridification” of sectarian conflict—in other words, providing legal rather than military means for resolving disputes. The religious clauses developed a basic framework that had existed in the empire since 1555, which tried to manage religious coexistence legally and politically, while bracketing out contentious and intractable questions of theological truth. The Westphalia treaties did this by extending legal protection to Calvinists as a third recognized confession, and by reducing the authority of the princes over their subjects in religious matters, thereby addressing the concerns of subject populations. After long negotiations and numerical haggling, the parties selected the year 1624 as the “normative year,” at which date religious property (churches and endowed monastic land, for example), rights of public worship, and the confessional status of each territory were locked. This meant that the princes could no longer impose their faith on their subjects, and the princes that converted to a different confession could no longer alter the confessional status of their territory. It was an innovative vehicle for the reestablishment of trust between Protestants and Catholics. As Catholic imperial estates outnumbered Protestant ones, it was decided that majority voting would no longer be decisive in representative bodies such as the Reichstag (Imperial Diet) in confessional matters. Instead, the princes’ representatives were to separate into religious parties and reach a settlement through direct negotiations. This principle of confessional parity was also applied to the imperial judiciary, with the Protestant members of the two supreme courts being granted a de facto right of veto.
ACHIEVING PEACE
Naturally, the analogy between seventeenth-century Europe and today’s Middle East demands an imaginative leap, given the intervening four centuries and the contrasting political, socio–cultural, and economic contexts. Nevertheless, there are remarkable similarities on many basic levels. For a start, there is the length and intensity of conflict, the bewildering complexity of the points of dispute, the role of internal rebellions escalating into wider conflicts, and the involvement of foreign powers. There is also the intensity of religious animosity among the militants, the multipolarity of the international scene, the rivalry of numerous monarchical princely dynasties, and the fusion (and confusion) of religious and political–constitutional matters. Both conflicts have seen the use of smaller proxies by larger powers to fight out their grievances; the exacerbation of more or less paranoid security fears through religious prejudice; and the drawing-in of new powers to the conflict, for fear that their security interests would be damaged if they remained inactive. Both have seen the exploitation of new forms of information technology to exacerbate sectarianism (printing in the seventeenth century and the Internet today) and both have led to a terrible intensity of human suffering. (It is believed that Germany lost up to one-third of its population between 1618 and 1648, and large numbers were displaced as refugees). Although sectarianism was exploited for power–political ends in both contexts, it was also a destabilizing factor in its own right. Before the Thirty Years’ War there had been a working compromise between the Catholic and Lutheran princes, but imperial politics became more confrontational and confessional again in the late-sixteenth century. Similarly, sectarian relations in the Middle East between Sunnis and Shiites have deteriorated in the last 30-or-so years, and previous secular-minded forces in regional politics have been pushed out and marginalized.
The main lesson from the European experience is that to achieve peace, an effective settlement must begin with a multilateral conference or congress in which all the primary regional actors come together to negotiate. Participation should be as inclusive as is possible; however, certain disruptive or otherwise unpalatable actors may have to be excluded. Exiles that had rebelled against the Habsburgs were barred from participation at Westphalia, just as the Islamic State (or ISIS) would be today. Participants must be willing to work flexibly and break new diplomatic ground. With the encouragement of the congress, and as part of the process, participants must be prepared, as German Foreign Minister Frank-Walter Steinmeier said in a recent speech in Hamburg, to open up their security interests transparently, and to make some sacrifices and compromises to achieve peace. If the Middle East is not yet ready for this, the experience of the Thirty Years’ War suggests that the region will have to endure more bloodshed before it is eventually compelled to adopt the positive and cooperative attitudes needed for forging peace. Herr Steinmeier also suggested that at crucial junctures, the role of a “third party” of smaller powers could be decisive in giving the peace process a crucial push toward completion, as occurred in 1647–48. He noted that the European states might play such a role in the Middle East today. It is worth adding here that the negotiators at Westphalia did not insist on a durable ceasefire before initiating peace talks. The negotiations began and continued as the fighting stilled raged, and were affected by the swinging fortunes of war. Within the Westphalia negotiations it was necessary for the participants to develop a degree of mutual trust, to facilitate greater transparency between them about their security concerns, and foster a sense of shared purpose toward lasting peace. This was not easy then, and would not be easy now—but it is possible. It takes time.
A central issue today is the Saudi–Iranian rivalry. If the Middle East is to achieve its own Westphalia, representatives from the region’s two main adversaries, Saudi Arabia and Iran, must participate actively and constructively in the negotiations. In this vein, it is helpful to study the parallels between the government of Saudi Arabia, given its centrality to Sunnism in the contemporary Middle East, and the Habsburg emperor, who was similarly central to the Holy Roman Empire and the Westphalia settlement. There are a number of points of similarity between the al Saud family and the seventeenth century Habsburgs. The Saudis have struggled with the gap between their position of authority as protectors of the holy places of Mecca and Medina and the fact that they are not caliphs; the Austrian Habsburgs struggled with the gap between their theoretical preeminence as Holy Roman emperors and geopolitical reality. The Habsburgs feared and resented the erosion of the regional supremacy that they had previously enjoyed, as do the Saudis now. For Saudi oil, there was the gold and silver of the Americas, which paid for the military support forwarded to the emperor by his Spanish Habsburg cousins. For Saudi-sponsored Wahhabism and its hatred of Shiism, there was the Catholic Counter-Reformation, that sought to roll back Protestant gains through a narrow Catholic interpretation of imperial law, exemplified by the 1629 Edict of Restitution. The containment (at least) of Saudi Wahhabism will have to be a major part of any future Middle East settlement. But Saudi Arabia will have to be nursed through any such negotiation process, just as the other parties at Westphalia had to cater to the emperor’s interests.
SECURING PEACE
Any new settlement in the Middle East must build on traditional religious, legal, and other structures native to the region, just as Westphalia was squarely based on a preexisting but renegotiated imperial system. Imposing a European template is out of the question; the idea is rather to apply the underlying principles and the experience of Westphalia to the Middle East.
The first principle involves limiting the sovereignty of most states or rulers in the region by giving a degree of protection to citizens against their own rulers, and giving subjects or citizens the right to appeal to a higher legal authority. This could be some form of a court, as was the case in the Holy Roman Empire, where litigation became crucial in defusing tensions and preventing conflict.
The Holy Roman Empire’s two supreme judicial tribunals were crucial in the defense of Westphalian terms and rights. The courts more often mediated between conflicting princes than doled out verdicts after a trial, but this was a good example where informal conflict resolution mechanisms worked better than formal ones. By including both Catholics and Protestants among its judges, the courts regained a degree of confidence among the various confessions, and many cases were resolved without ever coming to a formal judgement.
By accepting appeals from subjects who could sue their rulers at the courts, the imperial judicial system served as a safety valve against pent-up popular discontent. The courts helped to maintain the status quo, and in particular, the conditional sovereignty that limited imperial princes’ power by overseeing and policing their conduct, including their treatment of their subjects. The Middle East has no preexisting supra-statal judicial structure as such, but the United Nations as an institution does have an international courts system and conflict-resolution mechanisms that could be adapted to this purpose. Some states may be reluctant to accept limitations on their sovereignty, but if such limitations were to come with a UN label they may be more palatable, especially as it becomes clear that the only alternative is unending violence.
A second principle is recognizing that peace will only last if external guarantors collectively enforce respect among states for their people’s basic rights of religion, property, and due process. One of the key legacies of the Westphalian system was its innovative guarantor system, which enabled the signatories to enforce the terms of the settlement and set up a collective security system that encompassed both the internal guarantors (emperor and princes) and the external guarantors (France and Sweden). The latter integrated this system into the broader international order of early modern Europe.
The guarantee was most salient when the integrity and the constitutional balance of the empire was under threat, which in some cases emanated from one or more of the guarantors themselves—notably from the French monarch, Louis XIV, in the latter part of the seventeenth century. The guarantors that were not party to the dispute would then usually step in and defend the Westphalian order—either out of principled conviction or geopolitical self-interest, or a combination of the two.
Since none of the internal judicial mechanisms could compel the emperor to adhere to imperial law, the external guarantee was a necessary complement; it encouraged restraint on the part of both the emperor and the princes, deterred obvious breaches of the peace agreement and the law, and incentivized respect for the confessional rights and princely prerogatives that were confirmed at Westphalia. The guarantor system also proved able to evolve and grow in response to shifting international currents: Sweden’s geopolitical decline over the course of the eighteenth century made it less capable of exercising the guarantee effectively (although in formal terms, it retained its full status until the demise of the empire in 1806), whereas Russia’s growing power vaulted it into guarantor status in 1779. A guarantor system for the Middle East would need to be similarly flexible.
Although Louis XIV and other monarchs tried to take advantage of their guarantor status to advance their power or political self-interest, the norms established by Westphalia served as a restraint even when breached. For instance, the question of breach was discussed, including by the king himself, in terms of the Westphalia norms, with an inherent prejudice toward peace. Eventually, Louis XIV’s geopolitical adventures ended in failure and the norms of behavior established by Westphalia played an important part in obstructing his ambitions and bringing together other European states in an alliance against him. The success of the guarantor system was due, in part, to a widespread normative acceptance of outside intervention for the protection of rights and liberties. There was also a corresponding, entrenched tradition within the empire of seeking foreign assistance. This, along with the decentralized nature of the empire, helped make the external guarantor system effective.
In order to find appropriate external guarantors for a future Middle Eastern settlement, one would need to establish mechanisms that reflect prevailing power distributions, but that also have regional legitimacy. Some have suggested that the European system in the early modern period had a greater degree of cultural homogeneity than the Middle East has now. In that sense, having Sweden and France serve as guarantors did not seem as “external” as the United States and the European Union, for example, would be to the Middle East today. The United Nations may be the only potential external guarantor with real legitimacy since it includes Middle Eastern representation, but its legitimacy comes at the cost of effectiveness, to some extent.
For an external guarantee system to be effective it needs to be backed up by military force, even if that force is never used. Although the United States and the EU would be reluctant to commit to such an arrangement, regional powers like Saudi Arabia and Iran might be more willing. Turkey might also be willing to take on a greater role. In this context, one must face the risk of guarantor interventions exacerbating existing tensions on the ground, not least for being perceived as guided by self-interest, as was the case of France under Louis XIV. Therefore, it would be desirable when establishing the guarantor system to match the interests of the guarantors with what is needed to maintain the system. For Saudi Arabia, it is important to maintain the regime’s position as the preeminent state of Sunni Islam, boosted by its role as the guardian of the holy places of Mecca and Medina. Iran’s leaders feel a certain duty to speak for the more or less oppressed Shiite minorities in the region.
A third principle or element derived from Westphalia could be for the Middle East to determine its own “normative year”—to reset the rights of public worship and the intercommunal balance of local states and actors at an equitable, agreed upon date in the past. No subject or citizen could be legally excluded from civic office on the basis of religion. Within each state, there would be a guarantee of at least a minimum level of rights and protections for minority groups. This provision also implies that the established borders between states in the region would be preserved and upheld as part of the settlement, as was the case at Westphalia. Selecting a date for the normative year would be contentious, and it might be more useful to do so in some contexts than others. But applied judiciously and flexibly (in the Westphalia treaties there was some variable geometry on this point, with 1624 being the general normative date, but 1618 used in some special cases) it could be a useful tool in peacemaking. Instead of confessional conflict being eradicated by Westphalia, it was transformed into legal processes—another example of the “juridification” of conflict characteristic of the Holy Roman Empire. Litigation, negotiation, and diplomacy became crucial in defusing tensions and turning hot conflict into diplomatic tension, notably during the German confessional crisis of 1719. This was triggered by the attempts of several Catholic princes in the Rhineland to undermine their Protestant subjects’ religious rights. In response, north German Protestant powers threatened armed intervention. Armed conflict was avoided because the involved parties complied with politico–judicial mandates from Vienna to restore the states to their pre-crisis conditions.
It is almost conventional wisdom that the heterogeneity of actors in the Middle East undermines the chances of reaching a general settlement like that of Westphalia. But the Holy Roman Empire also contained a diverse set of actors and interests, traumatically divided by war and atrocity. Even if it is impossible (and perhaps undesirable) to try to transport solutions wholesale as blueprints or templates from region to region, the experience of Westphalia is valuable. It shows, importantly, that peace can always be brokered—regardless of the complexity, duration, and intensity of the conflict—with some help, as the German Foreign Minister Steinmeier has said, from discreet, experienced, and authoritative diplomatic negotiators. And, centuries later, Westphalia shows us how such peace can be found.
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