In the previous chapter I presented a wide range of data pertaining to the nature of the provisions dealing with gender issues in 112 peace agreements signed between 2000 and 2008. The analysis established that women's political participation and gender-based violence are the highest coded categories in this database (21 and 20 peace agreements respectively). The data also showed that these peace agreements do not reflect the broader agenda for participation espoused by resolution 1325 since women's appointments to the judiciary, and recruitment to re-structured police forces, the army and security forces remain hardly addressed at all. Agreements also continue to marginalise women's participation in DDR and in transitional justice and reconciliation processes. Most importantly the findings reveal that the issue of women's economic and social rights remain largely absent from most peace agreements. However, quantitative data, if not combined with other methods, only provide a limited understanding of the reality of implementation that may lead to hasty or misguided conclusions. Therefore, for a fuller picture it is important to move beyond figures to critically evaluate how these issues are being addressed in peace agreements. This chapter will focus on women's political participation not least because it is one of the most common issues in peace agreements but also because it is one of the three main focuses of resolution 1325 and is an area that many women's groups have actively and repeatedly drawn attention to.

The first part of this chapter critically engages with how the agenda on women, peace and security has treated the matter of women's political participation. This section will also map out how the peace agreements in the database have addressed the issue of women's political participation. The second part of this chapter attempts to answer the question of why peace agreements often address women's political participation but fail to tackle issues of women's economic and social inequalities that would, crucially, empower women and enable them to move towards gender equality as well as increased participation. The overall aim of the chapter is to reflect on the current impact of the UN agenda for women, peace and security on peace agreements. In pursuing this goal, I employ quantitative and qualitative data and include references to feminist literature, UN official documentation, peace agreements, and interviews conducted with elites within the field of peacemaking.

In Chapter 3 I established that out of the 112 agreements in the database 49 included references to women and gender issues and 63 agreements did not. The analysis in Chapters 4 and 5 demonstrated that the provisions addressing gender concerns in peace agreements also remain largely inadequate. This chapter, relying on expert opinions, aims to uncover some of the reasons behind the limited implementation of the UN resolutions on WPS in peace agreements and to draw key recommendations for maximising the impact of the resolutions on the ground. The chapter is based on 12 interviews conducted with key elite experts involved in the field of peacemaking. The views of the experts are particularly useful to understand the dynamics of peace negotiations and the challenges for the implementation of the UN agenda on WPS on the ground. As I explained in Chapter 2, the environment of formal peace negotiations is generally elitist and exclusionary consisting mainly of military leaders and government representatives engaged in direct or indirect talks with the help of third parties. Outside the parties to the conflict, those involved in the negotiation, mediation and facilitation of peace agreements generally carry prestige, influence and political weight. Consequently, some of the participants in this research would form part of what Zuckerman has termed the ‘ultra-elite’. Because of their insider experience, talking to the elites is a very efficient and concentrated method of gathering good quality data. In this research I define ‘experts’ as those professional elites who are or have been closely involved in the formal negotiations of one or more peace agreements and who are working or have worked in the planning and supporting of mediation of formal peace processes and peacemaking activities. As I have previously mentioned, in order to satisfy the ethical requirement of this research, all the participants in this research have been anonymised. The interviews were conducted in 2009 and hence the analysis in this chapter is generally focused on resolutions 1325 and 1820 rather than on the more recent resolutions on women, peace and security.

THE DEFINITION OF PEACE AGREEMENT

The term ‘peace agreement’ is often used to refer to a variety of documents signed at different stages of a peace process. These include: ceasefire agreements; truce or cessation of hostilities agreements; preliminary agreements; pre-negotiation agreements; framework or substantive agreements; interim agreements; sub-agreements; comprehensive agreements, and implementation agreements. Of course not every peace process includes all of these elements. While some peace processes follow a step-by-step strategy for negotiating and adopting peace accords, others seek to negotiate one main comprehensive agreement. Peace agreements are also signed in very different circumstances. While in some conflicts the parties agree on a ceasefire before entering into substantial peace negotiations, in other cases the cessation of hostilities is left to the final agreement. The negotiation of a peace settlement is usually removed from the conflict zone. For instance, looking at the dataset of peace agreements compiled by this study we see that the Afghanistan (2001) agreement was negotiated in Bonn, Germany; the Uganda (2008) agreements were negotiated in Juba in Southern Sudan; and the Liberia Comprehensive Peace Agreement (2003) was signed in Accra in Ghana.

Bell observes that ‘the act of comparing agreements is immediately open to the challenge that the term peace agreement in fact has no core meaning’. This is why it is imperative at the commencement of this section to clearly articulate the working definition of peace agreements used here. There is no consensus within the scholarly literature on what constitutes a peace agreement. The Uppsala Conflict Data Program (UCDP) states that ‘a peace agreement should address the problem of incompatibility, either by settling all or part of it, or by clearly outlining a process for how the warring parties plan to regulate the incompatibility’. The UCDP divides the incompatibility into government and territory and stipulates that the agreement has to be signed by some of the warring parties and not merely imposed by third parties as is the case with Security Council resolutions. The UCDP also distinguishes between ceasefire agreements and peace agreements, and excludes ceasefire agreements that do not address government and territorial incompatibilities from its definition of peace agreements.

During conflicts women, like men, are murdered, tortured, displaced, imprisoned, dispossessed, starved and forced into slave labour. Yet, in addition to these crimes, women and girls are particularly targeted for sexual violence. Sexual violence, though often associated with rape encompasses a wide array of other forms of attack including but not limited to: sexual assault; sexual slavery; sexual torture; forced nudity; forced prostitution; forced impregnation; forced sterilisation; forced marriages; and sexual mutilation. While there is growing evidence that men and boys are sometimes also victims of sexual abuse during conflicts, systemic and organised abuse of women remains much more common. Sexual crimes are not particular to certain types of conflicts or culture but are exceedingly commonplace during internal and international armed conflicts around the world and at all times.

Sexual violence has detrimental and overreaching consequences for women, their families, communities and the ethnic group to which they belong. This is especially true given that the concept of shame associated with the rape of women in peacetime continues for the sexual violence committed in conflicts. Rape and sexual crimes have destructive socio-economic and health effects on women's lives.

Introduction

If civil procedure lies at the heart of every legal system, the taking of evidence lies at the heart of every civil procedure. Yet, there are very few comparative works that attempt to present the topical issues of evidentiary proceedings in civil litigation. The harmonization of procedural law in the European Union has not changed this situation, irrespective of the fact that mutual cooperation of European judicial systems as regards the taking of evidence in civil and commercial matters forms part of the European acquis. Nevertheless, comparative research of the trends and developments in the national practices of evidence-taking in civil litigation has a lot to offer. Since the start of the new millennium, many contemporary jurisdictions are revisiting the fundamental principles of their civil procedures. The core areas of the civil process are not left untouched, including the way in which evidence is being introduced, collected and presented in court. One generator of the reforms in the field of evidence-taking in the past decades has been the challenge of slow and inefficient litigation. While the taking of evidence is not the only reason for the endemic deficiencies that have put into jeopardy the human right to a trial within reasonable time, in many national justice systems it has been contributing a fair share to it. Difficult access to information, inaccessibility of witnesses, and time consuming processes of producing expert testimony have been the cause of frustration for many court-goers across the European continent and elsewhere. Both in Europe and globally, reaching a balance between the demands of factual accuracy and the need to adjudicate disputes in a swift, cost-effective and efficient way is still one of the key challenges. The rise in court backlogs, the difficulties of many national civil justice systems in securing a reasonable length of the central stages of their civil proceedings as well as an increased influx of new cases and reduced budgets of national judiciaries contribute to the reform trends aimed to streamline, simplify and accelerate fact-finding procedures.

The second reason why many countries are reforming their law of evidence is related to cultural and technological changes in modern societies.

Introduction

For decades now, it has been claimed that as regards civil procedural law the Republic of Macedonia belongs to the Continental tradition and more precisely to the so-called ‘Germanic legal circle’. Just as in the other ex-Yugoslav republics, the fundamentals of Macedonian civil procedure are deeply rooted in the Roman law tradition within the Germanic circle. It was the Austrian Code of Civil Procedure of 1895 that traditionally provided the inspiration and model solutions for civil procedural issues. However, this practice was discontinued beginning about ten years ago. A striking trend of convergence between the common law and Continental legal systems spread to Macedonia, resulting in a completely different approach to the concept of civil proceedings in general, and particularly with regard to the rules of evidence. The changed position of expert evidence as a particular means of evidence in Macedonian civil procedure seems to be one of the best examples of shifting from the typically Continental approach to the more adversarial approach.

This contribution aims to analyse the altered rules of expert evidence in Macedonian civil procedure and also to reflect on the extent to which the changed position of expert evidence has not lived up to the expected improvement in efficiency and cost cutting, which were the prime reasons for the change.

A Summary of the Regime of Expert Evidence in Macedonian Civil Procedure before 2010

Following the independence of Macedonia in 1991, the Yugoslav Civil Procedure Act of 1976 continued to apply until 1998, when the first Macedonian Civil Procedure Act came into force. Although at that time the country went through a period of fundamental changes in its political and economic order, this did not imply a re-evaluation of its system of civil justice. Therefore, the first Macedonian Civil Procedure Act did not depart from the former Yugoslav Act. In the field of fact-finding and evidence-taking, Macedonian civil procedure was a mixture of adversarial and inquisitorial elements, with emphasis on the latter.

The discussions concerning the possible reforms of civil procedure started several years later, when the Macedonian Judiciary was hampered by extensive backlogs of civil cases.

Introduction

Until recently, new means of information and communication technology (ICT) had a limited effect on traditional civil procedure. Currently, new methods for storing, gathering and disseminating data are being considered by the courts, and using digital technology in courtrooms has become a reality. However, the incorporation and use of new technologies does not merely signify a technical challenge; it has an impact on traditional procedural values and, moreover, procedural and especially evidentiary rules. While the use of electronic technology in civil proceedings may promote efficiency and raise the quality of civil proceedings, the focus on efficiency should not overshadow the perceived legitimacy of the proceedings.

Civil procedure is selective as regards the information that can be considered in court actions. It provides for rules, which the court has to follow when reaching its decision. Civil proceedings consist of a series of acts by the parties and the court. These acts are performed simultaneously or consecutively, and the civil procedural rules determine the ensuing procedural consequences. The principle of legality is the basic criterion for the admissibility or inadmissibility of procedural acts.

The use of modern technology may improve the functioning of some traditional procedural principles if appropriate legal guarantees are provided. One of the main concerns is whether ICT, as a generator of swift proceedings and simplified solutions, will influence the right of access to justice and comprehensively contribute to the judicial protection of rights and the efficiency of litigation.

Due to recent developments in the use of ICT in different fields of everyday life as well as in the field of justice, the concept of e-justice used in the frameworks of both European procedures and national justice systems should be further defined. E-justice could be broadly defined as covering the use of ICT in all fields of justice. In the European context, an e-justice system should provide the following functions: 1. Access to information in the field of justice; 2. ‘Dematerialization’ of cross-border judicial and extrajudicial proceedings; and 3.

The subject of evidence is in fashion in France and probably elsewhere. I counted two important and international colloquia in France on the topic of evidence in 2013. It is a new topic in France. Traditionally, there were no textbooks, no papers and obviously no lectures on the topic. Evidence is basically taught during the first year of law school in a broad, introductory course on law. Depending on the course professor, the topic of evidence may or may not be covered; if it is, there are only three to nine hours dedicated to the topic.

Since the end of the nineteenth century there has been only one casebook written on evidence. Obviously, evidence is studied in the context of procedural law – whether criminal, administrative or civil – but again this is in a wider context only, and covers the procedural aspects of evidence.

The renewal of evidence as a topic of interest may be explained by several factors: the ‘proceduralization’ of law, the influence of the common law and the difficulty of proving discrimination and harassment claims. This trend is accompanied by the development of the loyalty principle and its counterpart, the right to proof. This contribution will first present the general picture of evidence law in France, then the emergence of the loyalty principle and lastly the limitations of this principle imposed by the right to proof.

General Picture of Evidence Law in France

The rules of evidence in French law are very different from the rules in common law countries even though some parallels can be drawn. In English, the two words ‘evidence’ and ‘proof’ are equivalent to the French term ‘preuve’, which comes from ‘épreuve’, or ordeal. Thus, in French law proof is not what we can see and hear (through testimony, for example) as the etymology of evidence would imply; rather, it is what the plaintiff and the defendant experience. This explains why proof by confession is still the basis – often repressed – of French criminal law.

Expertise (by this I mean the use of specialized knowledge provided by experts in particular fields) is now the most important means of proof in civil law, as it is in criminal law.