By Devaditya Chakravarti*
Read Part I here.
V. Why we need to control the NSAGs (Non-State Armed Groups) ?
The world is as of yet a nascent system grappling with war & violence, proliferating terrorism & traumatic inflictions on innocent civilians. International humanitarian law, traceable to the dawn of humanity’s cultural consciousness, has gradually taken shape & gained strength. So, in fact to some extent, with the intervention of various charters of United Nations, there has been an apparent control over the raging war between NSAGs & the State.
The controversial question arises who would be the actual body to control or measure the NSAGs. In this question, there has been only avoidance of responsibility among various states. The lethargic & callous attitude towards the role of NSAGs has been proved to be matter of great import.
As we can longer be dependent on state’s role to control the NSAGs, it is about time that the Non-Governmental Organizations should come forward & take this opportunity to prove their social responsibility is much greater than that of “state”.
V.I. What is the current situation?
NSAGs generally act outside the purview of national legal framework, thus confronting national as well as international security provisions with new challenges. NSAGs could be treated as a cause and a warning sign of fragile or failed states, where they have often acquired control over large parts and populations of a country or are even considered to be the de facto government. In these cases NSAGs react as important actors not only while severe fighting is going on but also during peace processes, disarmament and demobilization programmes, weapon collection initiatives and all such important peacemaking programmes. However, NSAGs are not acknowledged as legitimate actors before international law but rather are considered subject to state sovereignty.
Within this theoretical framework, the international community has often courted debatable controversies with regard to NSAGs, particularly where acute conflict environments are sustaining. State actors often find themselves in a dichotomy – between the need to engage NSAGs and the political repercussion of engagement, as strategies such as ‘sticks and carrots’ prove to be inadequate. For the government side, formal conversation might give legitimacy, recognition and belligerent status to rebel groups. State engagement with NSAGs could also be used as a forum for rebel propaganda. In alternatively, from an NSAG perspective, formal interview with states might make them susceptible to intelligence gathering and supervision. In this context, NGOs have more freedom to engage NSAGs than states, which may possess diplomatic and trade relations with governments who are in conflict with an NSAG. Concurrently, it has been suggested that there is more room for creative work between NSAGs and NGOs with regard to education and monitoring processes.
V.II. State’s Disposition to engage NSAGs
Many states have been reluctant to support initiatives that directly engage NSAGs, fearing the disruption of customary political and diplomatic conventions due to the lack of formal status held by NSAGs. By engaging with an NSAG a state actor, through its own standing, can enhance an NSAG’s status in inapt ways or even find itself taking the side of the NSAG as a result of its weaker capacity and/or sympathy with its cause. The degree of respectability which a state actor possesses as well as action taken with regard to the NSAG can to some degree be conferred on an NSAG and give it a modicum of legitimacy with regard to a particular cause or a particular community. Such a move would signal the inability to exercise effective control over state territory and the admission of a credible challenge to government authority. Moreover, interaction between a state actor and an NSAG operative on its territory could imply that there is a basis for the NSAG’s grievance. A direct consequence of such a ‘legitimization’ could, from an external outside perspective, even amount to rewarding ‘terrorist’ activities. Concurrently, it has also been feared by state actors that such interaction can be used by NSAGs to further their political objectives. Despite common and potential spill-over effects of NSAG activities, issues of illegality are seen as a domestic challenge. Accordingly, international humanitarian law is aimed mostly at state actors. It offers only limited mechanisms to push NSAGs to comply, whereas a collection of legal mechanisms has been developed to supply state actors with a comprehensive framework guiding their adherence. The dichotomy can be seen prominently in the cases of anti-personnel landmines and child soldiers, where in almost all cases NSAGs are subject, yet are not contributors, to international conventions. The mechanism for states to implement provisions against legal violations by entities or individuals on their territory is restricted to a criminalization of respective violations. This, however, has been demonstrated to be ineffective because NSAGs favour clandestine or guerrilla tactics so as to counter state authority. Nevertheless, in case the state concerned is not able to prevent or punish violations it is necessary to be able to hold NSAGs liable for such violations. Common Art. 3 of the Geneva Conventions, the second Additional Protocol relating to the Protection of Victims of Non- International Armed Conflicts, and more recently Art. 8(2) of the Statute of the International Criminal Court (ICC) explicitly apply to NSAGs in the context of non-international armed conflicts. At the same time, even the Statute offers very few provisions for engaging NSAGs, imposing obligations only on states. Moreover, it is often political interest that directly influences attempts at engaging NSAGs. In October 1998, the Canadian government initiated a discussion paper calling for a global Convention against the International Transfer of Military Small Arms and Light Weapons to Non-State Actors. Various state actors as well as NGOs rejected the proposal because it was seen as contravening the inherent right of self-defence for people fighting repressive regimes. One of the strongest objections came from the United States, which argued that it required the possibility of transferring arms to non-state actors as an instrument of foreign policy. Indeed, the US Iraq Liberation Act of 1998 provided for the transfer of weapons to opposition groups fighting the regime of Saddam Hussein. Further examples include alleged Guinean, Ivorian and Liberian support for NSAGs. Even after the end of the cold war it remains foreign policy practice to covertly or openly supply specific non-state actors with arms in order to advance political or economic ambitions, a clandestine strategy that is specifically denied to NSAGs and feared by state actors. In addition, many have argued that the major difficulty for state actors in engaging with NSAGs is that they sometimes had a ‘state address’ through external sponsoring. It has become difficult to track down reliable contacts for dealings with NSAGs that do not have an open state sponsor. As NSAGs often do not possess formal organization, or control over the individual cadres, NSAG leaderships are unlikely to be well informed about the activities of their agents, which adversely affects the number of reliable contacts. Equally, the international community cannot expect the cadres of an NSAG to invariably follow a leadership’s commands. However, once a contact has been identified through intelligence resources, access has been facilitated through modern communications technology. NSAGs often use websites and email as well as cell or sat phones for their own purposes.
VI. Effectiveness of NGOs in this regard
Contrary to state approaches, less important initiatives like those of NGOs bear the ability to engage NSAGs without being attributed international diplomatic or political status. In this way NGOs also bear the capacity to be more problem solving and policy oriented, using a ‘soft approach’ that appeals to a humanitarian perspective on issues like child soldiers or anti-personnel landmines. The methods of informal and unofficial diplomacy (or track two diplomacy) are often adopted by NGOs engaging with NSAGs.
This eases the pressure on the groups involved by addressing humanitarian concerns with NSAGs, while being independent from the state-centred international political sphere. Benefiting from this independence, many NGOs committed themselves to engaging NSAGs to respect and to adhere to humanitarian norms, utilizing an innovative mechanism for NSAGs to express adherence to international norms. By accepting the impossibility of NSAGs assenting to international treaties, an NGO, Geneva Call, has provided a legal document (the ‘Deed of Commitment for Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action’) that allows NSAGs to express adherence to international norms through their signature, in this case the 1997 Ottawa Convention. In the scope of this deed, signatories declare that they will not purchase, stockpile or use anti-personnel landmines. Geneva Call, in turn, pledges to provide support for the implementation of NSAG’s commitments and to monitor progress, while the Government of the Republic and Canton of Geneva serves as the guardian of the deeds. Geneva Call has, thus, not only made progress with regard to the banning of anti-personnel landmines but also provided a forum for communication between NSAGs and humanitarian initiatives. It fills a gap in the international legal regime by answering the question of what type of coordinating mechanism might work and where it should be located. Similarly, addressing the limited range of pressure points available to the international community with regard to child soldiers, the Coalition to Stop the Use of Child Soldiers calls for the establishment of a process that would enable non-state actors to commit to the Optional Protocol and open up to ongoing, independent monitoring and accountability.
In recent years there has been a significant development in the peace keeping process initiated by United Nations with respect to Non-state Armed Groups. UN has prescribed certain guidelines to provide concise advice and guidance to humanitarian practitioners on how to prepare for and conduct humanitarian negotiations with NSAGs.
The principal objectives behind such humanitarian negotiations are to: (i) make sure the provision of humanitarian assistance and protection to vulnerable populations; (ii) preservation of humanitarian space; and (iii) promoting better respect for international law.
Because of their exclusively humanitarian character, humanitarian negotiations do not in any way confer legitimacy or recognition upon armed groups.
VI.I. Need of Motivation to engage negotiation
To improve and enhance humanitarian action, the main purpose behind humanitarian negotiations is to ensure the cooperation of armed group in order to achieve an agreed outcome or a better understanding which would facilitate or enhance humanitarian action.
If we consider the negotiation in view of process-related motivations for such negotiations with armed groups then it may include: (i) to establish trust and confidence between the parties, and (ii) the process of negotiation can bring multiplier effect in respect of involving armed groups in a wider dialogue that may bring extra benefits.
Important areas for successful negotiation
The most important thing is to ensure that there is a fruitful and steady negotiation process. To ensure this there are certain areas which have been specially emphasized by UN guidelines.
- The very first important area to be emphasized with is to ensure and secure humanitarian access to reach population in need.
- For ground rules negotiation committee is to seek agreement with an armed group on a basic and fundamental framework-consisting of humanitarian principles, operating guidelines and commitments of both parties–to ensure the safe and efficient provision of humanitarian assistance and protection (often referred to as “Ground Rules” agreements).
- For protecting civilians one need to seek agreement on behavioural approach of belligerents which would improve the protection criteria in areas under the control or in direct influence of NSAGs.
- Emphasize should be laid on safeguard of humanitarian security as well.
- Agreements should be sought for special protection areas or periods
- To secure the release of persons being held by armed groups against their will.
Criteria to adopt a more cautious approach to negotiation
- In such situations where the humanitarian conditions themselves could be severely affected by the negotiations and where the security of the beneficiaries is prone to be affected.
- Where the humanitarian negotiations are made use of by the armed groups covertly to suit their political agendas and showcase their perceived legitimacy.
- When armed groups are believed to be playing several humanitarian actors off against each other for their own gain.
- When the negotiations put the lives of the armed group interlocutors at risk.
- When the armed group attaches conditions for the implementation of an agreement that could adversely affect the civilian population.
Who are the humanitarian partners in the negotiation?
- The humanitarian actors in a specific context/region should identify one or more lead negotiators, who should act as the primary representatives of humanitarian agencies (country team, humanitarian community in a specific context/region)
- The humanitarian negotiations and their underlying humanitarian objectives should remain strictly distinct from political and/or other negotiations.
- Humanitarian agencies should agree on the process and intended outcomes of the negotiation.
VII. Framing of the negotiation process
Humanitarian principles, policies and international law provide a framework and source of guidance for humanitarian negotiations with armed groups.
VII.I. Humanitarian principles for negotiation process
Three core humanitarian principles of Humanity, Neutrality and Impartiality; Additional principles: Dignity; Respect for Culture and Custom; Do No/Less Harm; Independence; Sustainability; Participation; Accountability; Transparency; and Prevention. These principles guide humanitarian negotiations by: (1) providing a source of direction for humanitarian negotiators on how negotiations should be undertaken; (2) defining boundaries within which to seek agreement; and (3) providing a set of criteria for developing options for consideration by the negotiating parties.
VII.II. Relevancy of internationals law for humanitarian negotiations
There are principally three bodies of international law i.e, International Humanitarian Law, International Human Rights Law and International Criminal Law (especially The Rome Statute of the International Criminal Court)—provide important framing elements for undertaking humanitarian negotiations.
International law guides humanitarian negotiations by: .1) defining boundaries within which to seek agreement; 2) framing the legal obligations of armed groups; (3) identifying the substantive issues for negotiation; providing an entry point for discussion on these issues; (4) providing reference benchmarks for evaluation of options and monitoring implementation; and (5) providing incentives to armed groups to negotiate.
VII.III. Relevant humanitarian policies
Humanitarian policies assist in translating and implementing humanitarian principles and legal provisions into an operational setting, generally focusing on a particular aspect of humanitarian action.
Humanitarian policies can guide humanitarian negotiations by broadening the range of options that parties to the negotiations can consider as a basis for agreement.
VII.IV. Negotiation on certain controversial issues
Negotiating ground-rules for negotiation
Humanitarian negotiators should be clear about the purpose and scope of any Ground Rules agreements to be agreed with an armed group.
Any Ground Rules framework agreement should be based on principles of humanitarian action recognized by the participating humanitarian organizations.
Agreement on the humanitarian principles, operating guidelines and commitments of both parties (humanitarian agencies and the armed groups) that collectively constitute a Ground Rules agreement does not infer or accord legitimacy to the armed group.
Based on existing guidance, humanitarian negotiators can draft an outline of the Ground Rules agreement (i.e. a template of the ground rules document for discussion with the armed group) prior to negotiations.
Negotiation of humanitarian access
Humanitarian negotiators should present the issue of access as a precondition for any humanitarian action in order to meet the humanitarian needs of a population, rather than access to a particular territory.
Humanitarian organizations should approach the negotiations with a set of working principles of humanitarian access agreed upon among the humanitarians—for example, sustainability of humanitarian access—to guide the dialogue on the details of the access arrangements (i.e. how access will function in practice).
As for counterparties to the negotiation process and the armed groups themselves, the negotiators should make it amply and evidently clear that such consultations do not confer by any means any semblance of a recognition on the armed group or seek to acknowledge or advertise its political or economic agenda, or the legitimization of its control over a population or territory. The early stages of the negotiations could usefully focus on securing access for the purposes of conducting a humanitarian needs assessment mission, as an initial step towards negotiations on humanitarian access more broadly.
Access negotiations should include consideration of: (i) logistics (how will access actually work: frequency of convoys, etc.); ii) liaison arrangements (… between humanitarian organizations and the armed group(s)); (iii) the need to communicate agreed access procedures within organizations.
Protection of civilians in the guidelines of international law
Humanitarian negotiators should raise awareness among members of the armed group on the need of civilians to be protected in armed conflicts.
Protection of civilians in armed conflict per se is not negotiable. Humanitarian negotiators should attempt to demonstrate (using a persuasive approach to negotiation) to the armed group that it is also in their interest to ensure the protection of civilians.
Humanitarian negotiators should generate options for consideration that can lead to enhanced protection of civilians. In the case of recruitment of child soldiers, options could include registration/demobilization of child soldiers, education and training schemes for demobilized child soldiers, and/or agreement, arrangements for care of orphaned children in areas controlled by the armed group; even though the armed group is not a party to the international human rights treaties, human rights themselves can provide a basis for discussion with armed groups on the type and scope of protections that need to be afforded to civilians.
VIII. Steps That Are to Follow Negotiation
The step of getting the armed group across the table to negotiate is a crucial step in itself, however it needs to be emphasized here that the foremost objective is to ensure that the parties in question arrive at an agreed outcome that protects and provides assistance to those in need and vindicate the commitment to international law. Now there can arise some unanticipated consequences for both the NGOs and third-party stakeholders. The first and foremost is a lurking threat of a change in the neutrality and impartiality of humanitarian actors as they continue with their negotiations. So as to mitigate this possibility the scope and objectives of the negotiations must be communicated conspicuously in so much as that they are focussed entirely on humanitarian issues, are not a replacement to political negotiations and by any means do not ascribe legitimacy or recognition on the armed group.
It is humbly stressed here that the security risks associated with the negotiations should be assessed prior to setting out on the path of negotiations and for that the experiences of qualified field security officers can come in handy with their first hand knowledge of the tactics and counter-terrorist strategies. Physical risks can be foreclosed by having the meeting conducted in a neutral venue and by informing all the necessary parties of the negotiations.
Now there may be situations host country governments, third parties in the form of external states and regional entities seek to put pressure on the NGOs to cease correspondence with the armed groups. Where a host country government in an effort to widen its pressure tactic places restrictions to funds or employs legal sanctions through judicial courts, it is important that the NGOs involve themselves in entering into parallel advocacy efforts and bilateral humanitarian diplomacy by a political delegate representing the United Nations in the country, such as the Special Representative of the Secretary General. Secondly it is paramount that the objectives and mandate of negotiations are effectively communicated to the concerned pressure-applying actors.
The UN General Assembly presently recognizes any humanitarian negotiations with armed groups as a legitimate and much approved approach to viable interaction. The concerned NGO may for this draw upon the support and consensus of the humanitarian organization active in the region.
Securing commitment of the Armed Group
It is imperative to ensure the commitment of the armed group to implement the agreement and for this it is to be ensured that all parties feel a sense of ownership of the final agreement by capitalizing on the potential agreed outcomes of the negotiators and the armed groups. The roles and responsibilities of every negotiating party is to be outlined clearly and conspicuously as this will only increase the chances for an armed group to commit itself to the letter and spirit of the agreement. The negotiators are not to shirk away from intimating to the armed groups the sanctions that they may have to face in the event of their non-compliance. An instance would be the Ground Rules Agreement reached between Operation Lifeline Sudan and SPLM/A in 1995 that inferred explicit support for the UN Convention on the Rights of the Child and the Geneva Conventions of 1949.
It is additionally suggested here that the armed groups are also to be made involved in the implementation of an agreed outcome by their participation in a joint monitoring mechanism.
Issue of Enforcement
Methods of enforcement and dispute resolution mechanisms are to be clearly delineated in the agreement reached between the negotiating parties and such enforcement can be brought about by coercing or providing incentives to the armed group and for this the involvement of third party states, regional organizations and UN peacekeeping forces is crucial in applying diplomatic or other pressure to see to the enforcement of the agreement. As for dispute resolution mechanisms, the negotiating parties must draw out the disputed issues as a starting point for seeking any resolution of the issue concerned. For this, it is suggested that a monitoring commission ought to be established which would include representatives from the armed group and humanitarian organization which would consider and resolve any issues associated with the implementation of an agreement. A neutral mediator could also play a sufficient role as would a mechanism involving referral of contentious provisions to an independent, non-binding arbitration mechanism where the award would have to be in line with the intent of the original agreement and a satisfaction of the humanitarian policies and the relevant provisions of international law.
In an event where such negotiations fail to produce fruitful results or the armed groups refrain from complying with the provisions they earlier agreed to implement, the NGOs may busy themselves with yet another series of negotiations or engage third parties such as regional organizations or UN representatives in advocacy and humanitarian diplomacy, or lastly, where non-compliance results in an adequate compromise with humanitarian security, any further humanitarian activities are to suspended for such time as a conducive operating environment is re-established.
It cannot be emphasised considerably here that the world is at a crucial juncture. Given the fact that the ISIS-led violence has been recognized as an armed conflict by the UN, substantial efforts need to be undertaken to ensure that the latter comes to respect human rights and international humanitarian law. The governments of the day should stop terming the ISIS as pariahs or political outcasts and start treating them as legitimate political actors as only then would one be able to involve them towards respecting international humanitarian law. Having significant populations under their control at risk, a legitimate question can be raised as to why the ISIS should come to abide by the norms that they themselves had no role in developing. The answer lies in that it is equally important for them to protect the victims of violence, though as of now in all the government brokered negotiations carried out, they have visibly rejected this notion, on the plea that these are state-based modalities that do not apply to them. In such situations the recognized, sovereign states ought to be prepared to give the armed groups a substantial consideration in exchange for engagement, such as relief supplies and works in areas where there legal authority and sovereignty appear fragmented.
It is no dispute that we have no choice but to engage in the process of addressing the fundamental analytical and political challenges that negotiations with armed groups pose.
UN has seemed to have experienced greater difficulties compared to NGOs in engaging the non-state armed groups directly as any attempt by it is pulled down by the armed group as a manifestation of the nemesis state’s complicity. While the effectiveness of Chapter VII resolutions by the UN to impose restrictions on states as to its exercise of legitimate monopoly of power, and so has the European Union. However both the UN and the EU have seemed to favour a more informal track provided by non-governmental organizations as they are able to engage with the armed groups with untrammelled legal freedom and without fears of hostility towards its personnel and material in the group controlled territories. The Geneva Call has provided mechanisms for the non state actors to enter the international legal domain by signing an international agreement, known as the Deed of Commitment, thus creating a possibility for them to adhere to the 1997 Ottawa Convention. The risks associated with legitimizing the armed groups are outweighed by the benefits of engagement and as it has been that the attempts by the state criminalize such armed groups works only to their detriment and thus NGOs here play an active and important role in negotiations and access to distressed populations and in bringing warring parties to the negotiation table.
(*Devaditya is a qualified lawyer and an author, having authored three books on international relations, sports law and maritime law. He is presently plying his trade with of one of India’s most reputed niche firms, where the work involves General Corporate Advisory with specialization in Corporate Finance and Mergers and Acquisitions. He can be reached at email@example.com)