Humanitarian Negotiations with Non State Armed Groups.

This is an extract of my original paper published by Chatham House here. For citation, check and cite the published version.

Introduction

The office of the UN High Commissioner for Refugees (UNHCR) estimated that in mid-2015 there were 58 million refugees and internally displaced persons (IDPs) worldwide who had been uprooted by persecution and conflict.[1] The vast majority of IDPs are in the five main conflict zones of Iraq, Syria, South Sudan, the Democratic Republic of the Congo (DRC) and Nigeria.[2] Although these people remain within their own country, they are nevertheless fleeing or seeking protection from either non-state armed groups (NSAGs), their own government, or the military forces of other governments. It is hard to determine precise numbers of those who are either fleeing NSAGs or seeking the protection of such groups. The Internal Displacement Monitoring Centre estimates that some 38 million people worldwide remain internally displaced having fled violence and NSAGs.[3]

The total number of those who have fled across borders from the various factions of the Syrian crisis alone now exceeds 4 million.[4] More than one-half of all Syrians have been forced to flee their homes, often multiple times, making Syria the largest displacement crisis globally. According to the UN Office for the Coordination of Humanitarian Affairs (UN OCHA), at 31 July 2015 some 12.2 million people remained in need of humanitarian assistance in Syria, ‘a 12-fold increase since 2011 – including more than 5.6 million children’, and 7.6 million people had been displaced by the conflict..[5] Furthermore, an estimated 4.8 million people were reported to be in need of humanitarian assistance in hard-to-reach and besieged locations.[6] Also according to UN OCHA, of these 4.8 million in hard-to-reach areas, an estimated 2.7 million in need were living in areas under the control of Islamic State of Iraq and Syria (ISIS), where humanitarian access continued to decline.[7]

In far too many situations today, people are living among – and either in fear of or protected by – NSAGs. Examples include: Boko Haram capturing villages in Nigeria; drugs-related gangs controlling territory in various South American states; ISIS taking whole swathes of Syria and Iraq; the Taliban or Al-Qaeda living within communities from Pakistan to Afghanistan; and warlords seeking power in eastern areas of the DRC.

The International Institute for Strategic Studies (IISS) Armed Conflict Database[8] estimates that worldwide there are currently 87 conflicts involving NSAGs that pose an actual or potential threat to the stability of the state or region in which they operate.[9] By the end of 2014 some 38 million IDPs globally had been forcibly displaced by violence (compared with 33.3 million in 2013).[10] Increases in the numbers of refugees and IDPs during 2014—early 2016 are primarily the result of the protracted crises in Iraq, South Sudan, Syria, the DRC and Nigeria. These five countries accounted for 60 per cent of new displacement worldwide in 2014, and, in all except Nigeria, more than 1 million people fled their homes during that year.[11] These are all states with regions that are under the effective control of NSAGs, and which rank very high on the Fund for Peace’s 2015 Fragile States Index.[12]

There is no clear definition of an NSAG. Claudia Hofmann and Ulrich Schneckener[13] have offered the following characterization:

distinctive organizations that are (i) willing and capable to use violence for pursuing their objectives and (ii) not integrated into formalized state institutions such as regular armies, presidential guards, police, or special forces. They, therefore, (iii) possess a certain degree of autonomy with regard to politics, military operations, resources, and infrastructure.

Some NSAGs control territory; others rely on protection from the local community. Many are engaged in hostilities that amount to an armed conflict. Some see themselves as governments-in-waiting; others are mere criminal organizations. Some populations manage to maintain a degree of normal life within the constraints imposed by NSAGs or a conflict situation; others are subject to brutal physical repression and economic hardship, and try to flee if they can.

Regardless of how NSAGs are defined, the conditions in which hundreds of millions of people live in complex situations across the globe differ so greatly that simple one-size-fits-all models for response, negotiation and assistance are not applicable. Each population impacted by NSAGs has to be dealt with and assisted within the constraints of specific economic realities, geopolitics, available funding, and the prevailing security situation.

Where there are urgent humanitarian needs in territories controlled or otherwise impacted by NSAGs, then the groups must be engaged in negotiations for humanitarian purposes. If the NSAG is not engaged in discussion, and acceptance of humanitarian aid or humanitarian protection is not agreed, then either the delivery of essential help will be extremely hazardous – likely to expose humanitarian workers to unacceptable risks – or humanitarian assistance will not be delivered at all.

When looked at from the perspective of those in urgent need of humanitarian assistance, the character of the conflict – whether civil war or crossing international boundaries, or whether between NSAGs or between NSAGs and governments – may be immaterial. Perspectives of those in need vary according to specific situations and cultures, and are likely to include such provisions as security, sanitation, shelter, healthcare, food, water, protection of cultural heritage and sacred places, and emotional/spiritual support, as well as provisions for the longer term, such as education and employment.

The International Committee of the Red Cross (ICRC) has long claimed that humanitarian assistance to civilians and those hors de combat must be delivered in a ‘neutral’ and ‘impartial’ way, this view being enshrined within the seven fundamental principles of the Red Cross Movement and in its Statutes.[14] ‘Neutrality’, to the Red Cross, is constructed as not taking sides in hostilities or engaging at any time in controversies of a political, racial, religious or ideological nature. The essential ‘neutrality of the objective’ of humanitarian assistance and non-interference in the surrounding armed conflict then became the hypothetical ‘humanitarian space’ in which humanitarian action took place. Neutrality is fundamental to the Red Cross and the humanitarian principles, and is embedded in voluntary codes in the humanitarian sector, but not all humanitarian organizations would claim to be neutral or even aspire to neutrality, in that they may espouse clear political aims. Whereas impartiality – action that makes no discrimination as to nationality, race, religious beliefs, class or political opinions to relieve suffering, giving priority to the most urgent cases of distress[15] – is a stated aim of almost all humanitarian actors.

Conflicts involving NSAGs that cross borders, and NSAGs operating in multiple jurisdictions, represent a fundamental change in the nature of armed conflicts today. In stark contrast to the last century, which was shaped by large-scale inter-state wars that resulted in millions of direct and indirect deaths[16] and anti-colonial conflicts,[17] several 21st-century conflicts can be characterized by entrenched operations across national borders in which NSAGs are fighting governments within and across several nations.[18]

The traditional distinction between combatant and civilian is becoming increasingly blurred –people cross from one category to the other as battle zones and residential zones mix. In addition, lines are being blurred in the delivery of – or prevention of – humanitarian assistance. Indeed, humanitarian assistance can be, and in some cases has been, part of the military strategy.

During the occupation of both Afghanistan and Iraq in the early 2000s, US and other coalition forces tried many counter-insurgency strategies, all of which had, in part, an objective to ‘win over’ the civilian population. As Hugo Slim wrote in 2004:

… much enlightened counter-insurgency strategy focuses on improving people’s lives through relief and development work.’[19]

In such a case, the impartial delivery of humanitarian supplies by humanitarian actors can form part of the military strategy, impacting negatively on neutrality and on the perception of neutrality.

This is a serious question today and one which has been forced upon humanitarians by each of the warring parties (in Afghanistan and Iraq) who both describe UN agencies and NGOs as ‘collaborators’ – albeit with rather different meanings. Coalition authorities have welcomed humanitarians positively as partners while resistance groups have killed humanitarians as treacherous agents of the enemy.[20]

The notion of ‘neutral and impartial humanitarian actors’ has two components. First, the actors and the action must in fact be neutral and impartial. Second, and perhaps more important, such action must be perceived to be neutral and impartial by all participants to a conflict. If the delivery of humanitarian aid is part of a military strategy, then the perception – and perhaps the reality – of neutrality is compromised. The neutrality and perception of neutrality is critical for many humanitarian players as it will impact on their ability to deliver humanitarian assistance impartially and effectively.

Changing approaches, and good intentions

In August 2003 a bomb exploded outside the UN compound in the Iraqi capital, killing 24 humanitarian workers and injuring another 150; and in October the same year at least 12 were killed at the ICRC office in Baghdad. In the following month 29-year-old Bettina Goislard was murdered while on duty with UNHCR in Afghanistan. In December 2007 two car bombs exploded in Algiers within minutes of each other, killing nearly 70 people and destroying the UNHCR and other UN offices and the city’s Constitutional Council building. More recently there have been targeted attacks on aid workers in, for example, Syria,[21] Afghanistan,[22] Pakistan[23] and southern Sudan.[24]

Each of these attacks was targeted and intentional. None was a case of ‘wrong place and wrong time’, ‘caught in the crossfire’, or just unlucky. The UN and its agencies, the ICRC and many other humanization organizations are being targeted by NSAGs precisely because they are providing humanitarian aid or protection.[25]

The ICRC has had a long history of relations with armed forces, principally around its mandate to disseminate knowledge about the provisions of international humanitarian law. In Bosnia in 1995 UN agencies and organizations such as the ICRC and Médecins Sans Frontières (MSF) employed several thousand expatriate staff. However, cooperation between occupying forces, peacekeeping forces and the NGO actors was low. Following the conflict in Bosnia and the massive expansion of national forces participating in the peace operations, the ICRC and leading military forces increased focus on the development of ‘civil-military’ cooperation representations, both within ICRC delegations and within military Civil-Military Cooperation (CiMiC) units. There was growing recognition that, particularly in peacekeeping operations such as in Bosnia, the peacekeepers’ military objectives and the humanitarian actors’ objectives, at least in part, crossed over. Peacekeeping forces and NGOs realized that cooperating in the same theatre of operations with similar objectives would increase efficiencies and effectiveness.

CiMiC structures in Bosnia helped fulfil the peacekeeping obligations by assisting in coordinating the delivery of vital supplies and protection efforts, and by aiding the return of national stability and ‘normality’. Certainly, in the case of peacekeeping operations in Bosnia, the perception of neutrality of humanitarian actors, and the need for peacekeeping military units to be perceived as neutral, was in alignment.

The conflicts in Afghanistan and Iraq were different, however. Many humanitarian actors then, as now, relied on funding from traditional sources, i.e. Western governments. In the case of Afghanistan and Iraq, the military forces of these governments were not neutral peacekeepers, but parties to the conflict. If humanitarian actors accept funds from one or more of the parties to the conflict, there is a possibility of a real or perceived conflict of interest, especially if humanitarian assistance or protection efforts form part of the counter-insurgency strategy.

In Iraq and Afghanistan during the occupation of the early 2000s the objective of the United States, and its coalition of occupying powers, was to restore stability in those countries. Humanitarian actions that promoted that goal were seen as not only supporting the population, but also as assisting US and allied forces. Humanitarian workers – although carrying out their primary duties of delivering humanitarian assistance to all – were not always perceived as neutral or impartial by those who opposed the military action and subsequent ‘nation-building’ processes.

When the delivery of humanitarian supplies and protection of civilian efforts becomes part of a military or political strategy, or is perceived as such, then those who deliver humanitarian supplies risk becoming more vulnerable to being caught up in conflict, including being deliberately targeted by opposing sides.

Attacking aid workers is not just a matter of perception of neutrality or impartiality. The objective is often to disrupt the supply of assistance to the civilian population and maintain disorder in the country. More disorder and disruption of resources and supplies can serve to increase disquiet within the civilian population. Disquiet hinders economic growth, decreases the effectiveness of the government, increases the dissatisfaction of the population, and can thus increase the susceptibility of some of the population to NSAG recruitment.

In addition, if the attacks by NSAGs cause aid agencies to scale back or to pull out, then pressure reverts to military forces to deliver the aid needed by the population. This risks drawing the military out into open territory, and would require them to move bulky cargo in strategically vulnerable convoys that are open to easy attack and, in addition, would stretch scarce military resources and reduce military effectiveness.

In Afghanistan, for example, NSAGs disrupt aid supply by attacking the UN, the Red Cross and other humanitarian agencies. They also increase disquiet in the community, enhance the opportunity for recruitment to their cause, and increase the number of vulnerable, ‘soft’ military targets on the road. At the same time, NSAGs, including the Taliban, at times put effort into developing positive relations with humanitarian organizations, particularly the ICRC, as they can see the benefit in humanitarian deliveries to territory under their control. Throughout the whole period, the security of humanitarian agencies has been directly impacted by the strategy of insurgents either to encourage or to discourage the delivery of humanitarian assistance.

If aid organizations were to withdraw from humanitarian operations, either through fear of their neutrality being compromised or when international staff are killed, this would likely encourage the ongoing targeting of the undefended humanitarian workers. But if staff are not pulled out in such situations, the nature of their work will make them the target of attacks and undermine or even destroy the delivery of humanitarian aid. Indeed, over the last decade, the numbers and severity of attacks against aid workers have increased, and the number of aid workers subject to violent attacks has risen steadily.[26]

For combatants, more confusion is created by the considerable expansion in recent years in NGOs that are labelled humanitarian. Conflict environments now involve large organizations such as the ICRC, UN agencies and programmes, sizeable international NGOs such as MSF, World Vision, Save the Children, Goal, Oxfam, etc., and very many small international and local organizations. Further confusion may be created by the presence of government actors that claim a humanitarian purpose but may be perceived as having a mixed agenda, e.g. the US government agency USAID, which delivers humanitarian aid in supporting US foreign policy.

Religion muddies the water still further. In religious or ideologically-based conflicts, Western-based organizations and Christian faith-based charities may encounter significant challenges in engaging with Islamic NSAGs. Western military actors and non-Islamic NSAGs are forced to ask similar questions about engagement with humanitarian organizations from Islamic backgrounds. Likewise, Islamic NSAGs may not readily accept the neutrality or impartiality of Western-based or Christian faith-based NGOs. Mercy Malaysia, Islamic Relief (United Kingdom), al-Haramain (Saudi Arabia), Deniz Feneri (Turkey) and MDI (Sudan) are examples of new and growing aid agencies that are blurring the characterization of humanitarian action still further in a world dominated by discourse around the ‘war on terror’.

Humanitarian action and genocide

The 20th century was pockmarked with wars and atrocities widely recognized as genocide. [27]

Humanitarian action in the case of the genocide in Rwanda was severely compromised. The delivery of humanitarian assistance and the protection of civilians required humanitarian organizations to work against Hutu perpetrators aiming to ‘cause the complete disappearance of the Tutsi’.[28]

Whatever the effort an aid agency exerts to be seen as neutral and impartial in a situation such as Rwanda, a Hutu perpetrator trying to kill Tutsi civilians may not accept the assistance to Tutsis as an example of impartiality, even though such assistance is being provided on the basis of needs. The prevention of killing, as in the case of the ICRC giving safe refuge to Tutsis within its compound, would likewise not be perceived by Hutus as a neutral act. By preventing a genocidal murder of a Tutsi, the ICRC could be perceived as taking sides against the Hutu objective. Such essential life-saving action may not therefore be wholly perceived on the ground as either neutral or impartial, even though such actions were in line with these humanitarian principles.

Given the extreme nature of the crime of genocide, assisting a target of genocide can lead to false accusations of taking sides against the perpetrator. Or indeed the converse: in not taking the side of the oppressed, the humanitarian actor can be wrongly accused of colluding with genocide. Likewise, standing by when crimes against humanity are committed and in other similar situations can be characterized by biased actors as equivalent to taking the side of the oppressor, and thus as a form of collusion.

The example of Rwanda relates to perception of both impartiality and neutrality, as the Tutsi civilian population was most in need because of oppression.[29] (See notably the paper by Ben Saul in this series, Improving Respect for International Humanitarian Law by Non-state Armed Groups.[30])

BBC journalist Nik Gowing has made the case that failure by both the international aid world and the international media to understand ground realities, such as the use by Hutu attackers of refugee camps, contributed to poor international responses that ultimately led to a decade-long war in Central-West Africa, especially in eastern DRC:

No longer are the agencies in the Humanitarian Community seen as impartial and in the zone of conflict solely for humanitarian purposes. Increasingly in recent years, warring factions and other interested parties have assumed that HOs and HAs [humanitarian organizations and humanitarian agencies) are partial adversaries and intelligence gatherers. The traditional sprinkling of former military officers and government officials inside HOs and HAs heightens that suspicion, despite the obvious value of their organisational and logistics skills to humanitarian operations.

. . .

Many in the humanitarian community find offensive the accusation that they are effectively “humanitarian spies”. However they must live with this reality of how the warring factions now view them.[31]

 

The delivery of neutral and impartial humanitarian aid to civilians is challenging when it is difficult to determine who is and who is not a fighter. It is more difficult to be neutral and impartial in the most extreme examples of human brutality, like genocide, but these remain key principles that humanitarian organizations strive for. Indeed, in the cases where the principle of neutrality and impartiality may be challenged, the need for humanitarian action is likely to be even greater.

Delivering assistance in territory controlled by NSAGs labelled as ‘terrorist’

Even more difficult for aid agencies are the ambiguous positions they confront in counter-insurgency situations, in particular engagement or negotiation with terrorists.

There is no internationally recognized definition of ‘terrorism’. Definitions in national legislation vary. For example, the United Kingdom Terrorism Act (2000, as amended), includes in its characterization: actions or threats of action designed to influence the government or an international governmental organization, or to intimidate the public or a section of the public, for the purpose of advancing a political, religious, racial or ideological cause.

As a consequence of there being no internationally agreed definition of terrorism, the label can be applied in public discourse, accurately or otherwise, to a wide range of NSAGs, leading to erroneous public perceptions of ideological fanatics with whom negotiations are impossible. Such public perceptions may be useful politically for a government to gain popular support to fight NSAGs, but such labelling rarely helps humanitarian agencies seeking to deliver assistance to those in need.

There are many examples – among them Northern Ireland and South Africa – where peace has only been achieved by negotiating with actors that had at one stage been labelled terrorists. For example, US policy softened in Iraq when General David Petraeus recognized that winning over the Iraqi population was the only long-term strategically viable way to win the war in that country, and that simply targeting insurgents with weapons and military action would not work. Petraeus summed up his view that in Iraq:

… we would not be able to kill or capture our way out of the industrial-strength insurgency that was tearing apart the very fabric of Iraqi society.[32]

For Petraeus, to win over elements of the Iraqi population, it was necessary to talk to them.

Jonathan Powell points out that terrorist groups are defeated in negotiation rather than in conflict.[33] Following conflict, rebel, terrorist or NSAGs often end up in government and leadership roles. For example, former paramilitary leaders now sit in parliament in the Northern Ireland Assembly. The Rwandan Patriotic Front won the civil war and became the government of Rwanda. includes leaders formerly labelled as ‘criminals’, as does South Africa’s. While the above examples focus more on political negotiation for peacebuilding, the peacebuilding aspects cannot be cleanly separated from humanitarian aid delivery or from programmes providing for the protection of civilians if those humanitarian activities form part of either counter-insurgency or peacebuilding strategies. For example, in the case of the Sri Lankan conflict (see below), proscribing the militant Liberation Tigers of Tamil Eelam (LTTE, or Tamil Tigers) accelerated the movement’s downfall, but the resulting humanitarian consequences were dire. In addition, the drivers of the conflict remained unaddressed and unresolved.

Having a blanket rule to ‘never negotiate with terrorists’ is often a fallacy in political settings. To expect humanitarian organizations to follow the ‘no negotiations’ approach, when political leaders often do not, is unrealistic and unworkable when humanitarian agencies need to negotiate access to territory controlled by NSAGs – even those labelled ‘terrorists’ – in order to respond to humanitarian needs.

The case of natural disasters

For many countries, one of the military’s roles is to assist civilian powers in the event of overwhelming natural disaster. The US military was relied on heavily in 2005 in the response to Hurricane Katrina, as was the UK military when severe flooding affected particularly southern England in late 2013 and early 2014. Irish troops assisted local civil defence authorities during the floods caused by Storm Desmond at the end of 2015, and Australian forces are deployed when wild forest fires occur. In response to the massive earthquake in southwest China in 2014, the People’s Liberation Army was deployed to assist in rescue and humanitarian assistance operations. In the second half of 2015 Indonesian army personnel and troops were dispatched to South Sumatra in an effort to bring the severe forest fires there under control, and the Indonesian authorities requested and received assistance from Singapore in the form of military equipment and personnel, as well as useful satellite imagery.

When massive natural disasters hit fragile states with territories in which NSAGs – some of which are labelled as terrorists – operate, the delivery of emergency humanitarian aid is complicated.

In October 2005 a massive, 7.6-magnitude earthquake hit Pakistan impacting large parts of Kashmir and North-West Frontier Province, across many areas with heavy Taliban and Lashkar-e-tiba influence. Half-a-million homes, 500 medical facilities, most government buildings, many roads, bridges, electricity supplies, water services and sanitation facilities were all destroyed in less than two minutes. Some 3.5 million people were made homeless; and more than 75,000 – mainly children – were killed.

In terms of scale, a greater territory was affected than that affected by the Asian tsunami. There were more injuries, although less deaths. The terrain, rather than flat and coastal, was mountainous and rugged. The weather, rather than temperate and tropical, was Himalayan, threatening and lethal. The freezing temperature of the mountainous winter was less than two months away. Predictions of massive second waves of death caused by infection, starvation and cold were realistic and frightening. Disease could be expected, calamity was thought certain.

The situation for Pakistan was overwhelming, and there were huge constraints for disaster-relief planners. While billions of dollars were donated to support the victims of the 2004 tsunami in southern and southeast Asia, funds for the Pakistan earthquake relief were both slow and scarce; so, therefore, was the international response. As funds were so tight, one of the key strategies initially was to ‘humanitarianize’ the Pakistan military planning process.[34]

The internal response to the earthquake was immediate, and was characterized by a close collaboration between military and non-military actors – but this closeness had to be forged, based on negotiation and engagement.

Aid workers, for their part, often have deep institutional mistrust of the military. In many countries ‘army’ does not mean ‘professional organized force’; rather it might describe a 12-year-old boy, drugged and carrying a Kalashnikov. Although this is clearly not the case in Pakistan, institutionally many organizations find it impossible to work closer than ‘at arms length’ with the military. Added to this the requirements of earmarked funding, mandates, and principles of neutrality and independence, mean that many institutions, and many individual aid workers, have never worked, nor ever wanted to work, with the military.[35]

One of the ways through which the level of trust was increased was to reinforce the perception of a humanitarian space. In Pakistan the argument was put:

One of the key principles is that of independence of the humanitarian objectives. Some aid workers can interpret this principle as one requiring independence of institutions – military from humanitarian. In fact there is no limitation on coordination and cooperation between military and humanitarian institutions, so long as the objective of actions is humanitarian, not military.[36]

In the Pakistan earthquake response, the concept of humanitarian space quickly became complicated by the fact that NSAGs were also delivering aid, not just NGOs. Hence the Pakistan military had to find ways to handle the various NSAGs linked with fundamentalist ideology, and to determine NSAG access to deliver aid.

Several groups that had been designated by the UN 1267 sanctions regime – concerned with Al-Qaeda and affiliated groups (such as Lashkar-e-tiba) – operated in, and partially controlled, territory in the areas affected by the earthquake. Questions quickly arose as to whether such organizations should be allowed to deliver humanitarian aid despite the fact that they were listed terrorist organizations. The Pakistan military authorities thus found themselves in a dilemma that often faces governments in a humanitarian crisis, vis-à-vis the interaction with NSAGs and the delivery of essential aid.

Allowing NSAGs to deliver humanitarian assistance to victims of the earthquake would deliver a propaganda ‘win’ to such groups. There was considerable risk that NSAGs would seek legitimacy through cooperation with humanitarian agencies. However, blocking the NSAGs presented the risk of a ‘lose-lose’ situation. Furthermore, blocking NSAGs would also likely make foreign humanitarian workers more of a target, and the delivery of aid even more difficult. If a nation’s military force can deliver humanitarian aid as part of its function, claiming ‘impartiality of the humanitarian objective’, then it is arguable that an NSAG could deliver aid using the same basis of claim.

After rapid consideration, the Pakistan authorities allowed the delivery of humanitarian goods by NSAGs, but kept a close watch on their activities. At the same time, UN OCHA officials had to ensure that Western humanitarian actors delivered their supplies in ways that were sensitive to government and NSAG concerns.

The ‘war on terror’ created additional severe risks for humanitarian organizations in the Pakistan earthquake relief effort:

The US, in particular, made a very conscious effort to use the earthquake response to ‘win hearts and minds’ and reward an important ally. While in this case Pakistani earthquake survivors (and many aid agencies) were beneficiaries of the instrumentalization of aid, it could well prove fatal for victims of humanitarian crises in countries that are not perceived to be of similar strategic importance.[37]

US forces had clear, non-neutral – indeed highly partial – objectives in assisting the humanitarian relief effort. But, if only for the enormous logistical capacity and the amount of material aid that the United States can bring to bear, US assistance cannot be easily refused.

The humanitarian space thus became increasingly complicated, with international aid agencies, a host of government actors, homegrown NSAGs and foreign military forces all undertaking ‘humanitarian action’ in a post-natural disaster setting, and this complexity further compounded by the geo-politics of the ‘war on terror’.

As a consequence of the severity of the Pakistan earthquake, multiple actors, some of whom in another setting might very well have been be fighting each other, were instead undertaking the same strategic objective: keeping people alive. The scale of the challenge that the earthquake created provided the impetus for what was later termed ‘non-interfering coordination’.[38]

However, many humanitarian actors do not always fully understand the nuances of the political territory that they must navigate:

… humanitarians are not always adept at navigating political shoals, despite political and strategic interests – whether international, national or local – never being far below the surface.[39]

In an environment so politically charged, where national armies, foreign military forces and NSAGs are all operating, huge security challenges are manifest, and humanitarian actors – however politically astute – will from time to time get it wrong:

While many agencies have invested considerable resources to enhance the security of their staff and assets, there is still a need for more and better analysis of local contexts and of the place that humanitarians, wittingly or not, occupy in the political landscape.[40]

In Pakistan, through a growing understanding of the political context, Western-based aid workers found themselves changing their behaviour. Christmas celebrations at the end of 2005 and subsequent (Western) new year functions were held in Islamabad only, and not in conservative areas. Cuban doctors, numbering more than 2,000 (mainly housed in tents provided by USAID), were instructed to separate their accommodation for men and women. Rare cases of proselytizing by Christian NGOs were immediately stopped.

This was a complex engagement that saw sometimes unorthodox partners working together to address a mutual problem. More than 100 aircraft from the US, UK, Pakistan and Australian militaries, plus UN air support, were tasked from a common ‘Air Operations Cell’, under a Strategic Oversight Group made up of military and humanitarian actors together.

It is important to note, however, that the Strategic Oversight Group did not include NSAGs.[41] The humanitarian response might have been even more effective if humanitarian actors had been able to negotiate and work with NSAGs to the same degree as they did with the state actors. However, the increased perception of credibility that would have arisen from formal participation might have changed the nature of the post-disaster environment.

The agreed acceptance of humanitarian assistance for earthquake victims did not result in lasting changes in relationships between NSAGs and the Pakistan authorities. Indeed, following the earthquake, the Pakistan Taliban took control of some affected areas, including the Swat Valley. Therefore, while an agreement could be reached for engagement for humanitarian purposes in response to the earthquake, the new goodwill was temporary and did not extend beyond the emergency.

None the less, the case of Pakistan demonstrates that humanitarian negotiations with both the national authorities and NSAGs in earthquake-affected territory resulted in clear humanitarian benefits to the civilian victims of the natural disaster.

A different dynamic played out in Sri Lanka following the 2004 tsunami. There, the LTTE had deeper and more effective control over territory they controlled, and delivered visible humanitarian assistance to considerable effect.[42]

The informal arrangements in Pakistan meant that visible displays of authority on behalf of the NSAGs were less marked than was the case in Sri Lanka, which may then have impacted the ability of the NSAGs to use the natural disaster as a springboard in the armed conflict. In Sri Lanka the LTTE’s increased confidence post-tsunami led it to become ‘more intransigent’ at the negotiating table, which contributed to the breakdown of the ceasefire and the resumption of conflict – and the ultimate defeat of the Tigers.[43]

Creating a humanitarian space for the delivery of humanitarian aid at a time of natural disaster cannot be disconnected from the post-disaster political opportunities. Concerns over post-disaster scenarios may well impact on both the broader conflict situation and security concerns for aid workers.

Far from being static, the security environment for humanitarian workers changes over time. Just as Western humanitarian agencies collaborate with NSAGs to deliver humanitarian assistance, likewise NSAGs may also collaborate for a short-term and specific purpose.

The political consequences of a slow withdrawal of aid following the emergency period are rarely well thought out and planned for:

As the less contentious life-saving humanitarian phase transitions into a more politicized reconstruction and recovery phase, the role of military forces is likely to become more politicized and disputed. It is therefore important for military actors to not only develop their capacity to respond to disasters, but also to develop their capacity to exit from disaster responses and hand over responsibility to civilian authorities – a notable weakness of the Pakistan Army.[44]

At some point in a post-disaster operation in a conflict region – just as in complex military environments – humanitarian organizations can overstay their welcome; and there is a discernable shift from being regarded as vital humanitarian actors to being perceived as participants in the conflict and thus legitimate military targets. Political awareness and good communication remains of critical importance through the entire operation. Understanding when to stay, when to go and when to negotiate are an ongoing set of security considerations for humanitarian organizations.

Two competing trends are emerging. There is a greater need for professional humanitarian players with deeper political training to allow them to understand the nuance of the changing humanitarian space. Such professionalism is needed in order for humanitarian negotiations to steer through complex situations.

Undermining this need is the growing number of aid agencies with short histories, little training, and well-meaning but amateur staff. Such organizations cannot possibly hope to engage NSAGs in complex negotiations. Perhaps it is time to draft a set of internationally agreed regulations for humanitarian actors that would build on the sets of standards and guidelines already in existence.[45]

The rise of non-traditional donors, aid from the Middle East, and current conflict

Aid is no longer the preserve of Western agencies. New organizations are springing up to deliver humanitarian assistance from other donor bases, notably among them, in the case of the Middle East, Saudi Arabia, Turkey and the United Arab Emirates.

It may be possible that such agencies can negotiate with NSAGs to deliver humanitarian assistance where Western agencies cannot. None the less, it may be difficult for governments – particularly Western governments – to perceive these actors as ‘neutral’. Western military forces may agree to respect the neutrality of an Islamic faith-based humanitarian organization that is working to deliver aid in territory controlled, for example, by ISIS, but Western media outlets and governments may not share the same view.

Today, even if a Western humanitarian agency were able to negotiate the delivery of humanitarian assistance in all areas of Syria, recent security legislation in certain Western states is problematic, potentially placing both the organization and its employees at risk of criminal penalty for operating in certain countries and dealing with particular actors. Humanitarian actors operating within a claimed ‘humanitarian space’ run the risk that governments perceive the assistance as providing support to terrorists. Donors may be concerned about the implications of counterterrorism legislation and therefore withhold funding.

An aid worker may well join a credible organization, go to a conflict zone to do humanitarian work, and survive the war, hardship and conflict, only to come home and be liable to arrest. The case of Adam Brookman, an Australian nurse, is illustrative. He is subject to criminal charges in Australia for allegedly assisting ISIS. Brookman asserts that he was forced into performing humanitarian nursing work after being kidnapped.[46] The Australian authorities are also investigating whether his work as a nurse overlapped with more traditional military roles such as reconnaissance and guard duty.

In 2010 the US Supreme Court ruled on Holder v. Humanitarian Law Project.[47] The Humanitarian Law Project was held to have fallen foul of the 2001 USA PATRIOT Act, in that the provision of training and support for peacebuilding activities met the definition of providing ‘material support’ to ‘terrorism’. The impact on more traditional humanitarian aid or protection activity of the ‘material support’ provision in this legislation has not yet been fully tested in the courts.

Humanitarian negotiations are perceived as being largely driven by long-standing neutral actors that derive largely from accepted organizations such as the UN, the Red Cross and large multinational NGOs. As new humanitarian organizations develop in different cultural settings, such as faith-based Islamic charities, how they are perceived in such negotiations in terms of neutrality, impartiality and effectiveness remains to be explored. If Western policy-makers insist on respect for Western humanitarian workers by NSAGs, then it is important that Western governments must also continue to respect humanitarian actors that do not come from Western political or ethnic traditions, but that do abide by the principles of neutrality and impartiality, even if they may be perceived as giving support indirectly to opposing causes.

Conclusion: preserving humanitarian impartiality

The world has evolved since Henri Dunant conceived of humanitarian action in A Memory of Solferino.[48] The principal recipients of humanitarian assistance are now civilian populations, not soldiers on the battlefield. Equally, civilian populations are often the targets of military operations aimed either at killing, or at winning hearts and minds.

There is no ‘one-size fits all’ approach to humanitarian aid delivery. Natural disaster operations in areas free from conflict are perhaps a less highly charged context in which to see humanitarian actors and the military forces of a state cooperating. In cases of disasters in conflict regions, such as in Pakistan in 2005, agreements can and must be negotiated, including with NSAGs, to ensure the ongoing delivery of impartial humanitarian assistance. Sri Lanka in 2004 also shows that ceasefires negotiated in concurrent armed conflicts for the purpose of delivering humanitarian relief can be effective. Peacekeeping environments can provide a space for humanitarian work, and humanitarian organizations can work closely with the military as well as NSAGs in a peacekeeping context, as exemplified in Bosnia.

Peace enforcement, however, or counter-insurgency operations – when ‘winning hearts and minds’ becomes a military objective – changes the military and humanitarian context. As do situations of genocide. In these circumstances, the delivery of humanitarian assistance can become perceived and portrayed as ‘taking sides’, by helping one or achieve their goal, thus compromising the perception of impartiality.

Even more stark choices have to be made when the delivery of humanitarian aid itself becomes a military strategy. Should a party to a conflict – whether a state or an NSAG – decide that delivery of humanitarian assistance is part of a military strategy, then maintaining the perceived neutrality and impartiality of humanitarian assistance may be impossible, no matter how much an aid agency might proclaim these.

In these circumstances, both state and NSAGs on the one hand, and humanitarian organizations on the other, need to ask at what point is humanitarian space impossible to maintain, and how the delivery of humanitarian assistance continues if that delivery is not characterized as impartial by all sides.

Humanitarian actors themselves are mixed in terms of capacity and professionalism: some agencies have sufficient capacity and a long-standing reputation, with highly competent staff; some agencies do not. It is perhaps time for an international system to regulate humanitarian agencies that would include international protection and new codes of conduct from both governments and NSAGs.

Governments, parliamentarians, UN agencies and humanitarian NGOs are struggling with the complexities of dealing with NSAGs in complex conflicts. Decision-makers, residing in countries far from the mayhem of war, may not always fully understand the impact that their laws and policies may have on people affected by conflict who are in need of assistance, and on the agencies and individuals who are delivering aid.

When a humanitarian organization has to negotiate with, for example, ISIS to deliver humanitarian aid to territory under its control – normal practice for a humanitarian agency – it may be that some Western governments will criticize that engagement. The latter may interpret the negotiation as providing material support to terrorism, either by assisting ISIS’s strategy of winning the propaganda war, or by freeing up scarce resources for military activities.

Aid delivery in conflict and in non-conflict situations are not equivalent. In conflicts there are multiple authorities and additional severe dangers for humanitarian workers: there are, therefore, shifting boundaries and complexities that can be hard to fathom.

When natural disasters strike countries that are embroiled in conflict, such as Pakistan in 2005 or Sri Lanka in 2004, the disaster response is almost impossible to separate from the extant conflict. The response will have an impact on the conflict dynamics, and vice versa, and will thus present additional challenges to the delivery of aid.

The humanitarian space is increasingly complex and at the same time it is shrinking; by contrast, humanitarian need is increasing. In extreme examples, in circumstances where neutrality or perceived neutrality cannot exist, the humanitarian space may not function. Policy-makers and humanitarian actors are recognizing the more complex environment, and they are adjusting training and operational protocols to suit this.

Alongside the increasing complexity, the fundamental reason why NSAGs need to be engaged for humanitarian purposes is simply that they control, or impact on access to, territory in which there are people in need of assistance or protection. NSAGs also have obligations under IHL in respect of the way they conduct hostilities, and also regarding the treatment of civilians who live in the areas they control.[49] Even if they gain some political legitimacy as a result of taking their obligations seriously, NSAGs need to be engaged for effective and impartial provision of assistance, and need to adhere to the rule of law in armed conflict, for the sake of the human beings who live in the territories they control.

[1] UNHCR, ‘Mid-year trends 2015’, http://www.unhcr.org/56701b969.html#_ga=1.266796622.1372022211.1453742742, Global Trends Report: World at War, http://www.unhcr.org/558193896.html.

[2] http://www.internal-displacement.org/assets/library/Media/201505-Global-Overview-2015/201505-Global-Overview-Highlights-document-en.pdf.

[3] Ibid.

[4] http://www.abc.net.au/news/2015-07-09/number-of-syrian-refugees-tops-four-million-un-reports/6608860.

[5] http://www.unocha.org/syrian-arab-republic/syria-country-profile/about-crisis.

[6] Ibid.

[7] http://www.humanitarianresponse.info/en/system/files/documents/files/wos_bulletin_issue_2_ocha_final_150623.pdf.

[8] https://acd.iiss.org/en/nonstatearmedgroups?tags=5DD93BC29727494A8A233747F6B97624.

[9] http://www.internal-displacement.org/global-figures#conflict.

[10] http://www.unhcr.org/pages/49c3646c23.html.

[11] http://www.internal-displacement.org/assets/library/Media/201505-Global-Overview-2015/20150506-global-overview-2015-en.pdf.

[12] http://fsi.fundforpeace.org/rankings-2015.

[13] Hofmann, Claudia and Schneckener, Ulrich, ‘Engaging non-state armed actors in state- and peacebuilding: options and strategies’, International Review of the Red Cross, V93, No. 883, September 2011.

[14] The Seven Fundamental Principles of the Red Cross Movement were proclaimed in 1965, and are: Humanity, Impartiality, Neutrality, Independence, Voluntary Service, Unity and Universality. See https://www.icrc.org/eng/resources/documents/misc/fundamental-principles-commentary-010179.htm.

[15] https://www.icrc.org/eng/resources/documents/misc/fundamental-principles-commentary-010179.htm.

[16] The First World War is a good example.

[17] Many African conflicts, for example the Rhodesian wars.

[18] ISIS and Al-Qaeda are examples.

[19] Hugo Slim ‘With or Against? Humanitarian Agencies and Coalition Counter-Insurgency’ in Opinion, Centre For Humanitarian Dialogue, Geneva July 2004.

[20] Ibid.

[21] http://www.telegraph.co.uk/news/obituaries/11095290/David-Haines-obituary.html.

[22] http://www.afghanistansun.com/index.php/sid/224095835.

[23] https://www.wfp.org/content/fear-attacks-persist-united-nations-workers.

[24] https://www.wfp.org/content/un-humanitarian-chief-condemns-attacks-aid-workers-southern-sudan.

[25] Andrew MacLeod, ‘Why Aid Workers are Now in the Cross-Hairs’, The Melbourne Age, 26 November 2003, http://www.theage.com.au/articles/2003/11/25/1069522602801.html?from=storyrhs.

[26] For recent data, see Aid Worker Security Report 2015, https://aidworkersecurity.org/sites/default/files/HO_AidWorkerSectyPreview_V1.pdf.

[27] Decision, The Prosecutor v Jean Paul Akayesu Case No. ICTR-96-4-T, 2 September 1998.

[28] Ibid.

[29] Gerard Prunier raises the difficulty of Hutu genocide perpetrators fleeing across the border into what was then Zaire, only to continue to launch genocidal attacks into Rwanda from firm bases inside refugee camps. When returning from operations they would line up, looking and acting like every other refugee, to be fed by the international community. Feeding Hutu attackers was characterized by Tutsi survivors of the genocide and by the post-conflict Tutsi-led Rwandan government as collusion. It is not the role of humanitarian organizations to remove and/or investigate suspected war criminals, and governments and humanitarian organizations need to be clear on this issue. Humanitarian action is not equivalent to, nor is it a substitute for, political and judicial action. Gerard Prunier, The Rwanda Crisis: History of a Genocide, Colombia University Press, New York, 1995.

[30]Ben Saul, Improving Respect for International Humanitarian Law by Non-state Armed Groups, Chatham House Research Paper, the Royal Institute of International Affairs, 2016.

[31] Both extracts from Nik Gowing, ‘Dispatches from Disaster Zones’, paper delivered to ‘New Challenges and Problems for Information Management in Complex Emergencies’, London, 27 May 1998.

[32] Quoted in Jonathan Powell, Talking to Terrorists: How to end armed conflicts. Bodley Head, London, 2015 BODLEY HEAD EDN WAS 2014?.

[33] Powell, Talking to Terrorists.

[34] See Nadeem and MacLeod ‘Non-Interfering Coordination: The Key to Pakistan’s Successful Relief Effort’ in The Liaison, V40, No.1.

[35] The Pulse of Humanitarian Assistance, Cahill, K. (ed.).

[36] Ibid.

[37] Andrew Wilder, Humanitarian Agenda 2015: Perceptions of the Pakistan Earthquake Response, Pakistan Country Study, Feinstein International Center, 2008.

[38] See Nadeem and MacLeod ‘Non-Interfering Coordination: The Key to Pakistan’s Successful Relief Effort’ in The Liaison, V40, No.1, Centre of Excellence in Disaster Management and Humanitarian Assistance, Hawaii 2008.

[39] Andrew Wilder, Humanitarian Agenda 2015: Perceptions of the Pakistan Earthquake Response.

[40] Ibid.

[41] The Pulse of Humanitarian Assistance, Cahill, K. (ed.).

[42] http://www.princeton.edu/jpia/past-issues-1/2008/1.pdf.

[43] ‘[I]n the case of Sri Lanka, where the Tamil Tigers were able to perform relief and recovery functions relatively successfully and the Sri Lankan government was not able to thwart such efforts, the separatists’ success served as a signal that their claim to legitimate governmental authority had some merit. As a result, they were able to approach the bargaining table from a stronger relative position, resulting in more separatist intransigence, and in the end, renewed civil conflict’, Jason Eniahttp: http://www.princeton.edu/jpia/past-issues-1/2008/1.pdf.

[44] Andrew Wilder, Humanitarian Agenda 2015: Perceptions of the Pakistan Earthquake Response.

[45] See, for example, the Joint Standards Initiative by the Humanitarian Accountability Partnership, People In Aid, and the Sphere Project, http://www.jointstandards.org.

[46] See http://www.dailymail.co.uk/news/article-3174001/Australian-nurse-claims-forced-work-ISIS-arrested-Sydney-Airport-flying-Syria.html.

[47] 561 U.S. 1 (2010), 130 S.Ct. 2705.

[48] An account of Dunant’s contribution to the establishment of the Red Cross in 1863 is available at https://www.icrc.org/eng/who-we-are/history/founding/overview-section-founding.htm.

[49] See Ben Saul, Improving Respect for International Humanitarian Law by Non-state Armed Groups.

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