Engagement with non-state armed groups is necessary for humanitarian work. It is not prohibited, even when the groups are designated, but misunderstandings have led to unwarranted self-restriction by humanitarian organizations.
Engagement with non-state armed groups for humanitarian purposes is necessary for all aspects of the work of humanitarian actors: negotiating access, conducting relief operations, re-establishing family links, promoting compliance with IHL, and developing action plans for the release of children recruited or used by such groups.
Where such groups or their members have been designated as terrorist or are under other sanctions, the question arises whether contact with them is permissible.
This chapter discusses relevant legal and policy restrictions. It seeks to clarify misunderstandings that have arisen across contexts and are leading to unwarranted self-restriction by humanitarian actors, and reticence by governments and other entities that provide funding. Is there any reason based in law why there should be no engagement between humanitarian actors and designated organizations, or has a ‘no contact’ practice arisen from a misunderstanding of the legal position?
5.1 Legal restrictions
5.1.1 International measures
It can be said quite categorically that there is no prohibition on contact as a matter of law. Such a prohibition would be inconsistent with IHL. Common Article 3 of the Geneva Conventions expressly foresees the possibility for humanitarian actors to offer their services to both sides in non-international armed conflicts – states and organized armed groups. This implicitly recognizes the possibility of liaising with such groups, as do other rules regulating humanitarian operations in non-international armed conflicts.
It can be said quite categorically that there is no prohibition on contact as a matter of law. Such a prohibition would be inconsistent with IHL.
None of the CT conventions or Security Council resolutions address contact – let alone restrict it. Nor do sanctions prohibit contact with designated groups or persons. Financial sanctions prohibit making funds or other assets available directly or indirectly to designated persons and groups, but do not preclude contact.
The absence of a ‘no contact’ rule was expressly noted in relation to EU sanctions in the 2020 European Commission Guidance clarifying the application of sanctions to various aspects of COVID-19 response, in the following terms.
5.1.2 Domestic measures
It has not been possible to find any domestic CT legislation that prohibits contact with terrorist groups, whether in purported implementation of international obligations or as a state’s own policy.
The legislation of two states – Australia and Nigeria – includes crimes that relate to meeting with terrorist groups, but neither prohibits such meetings when they are for the purpose of discussing humanitarian action. Australia’s Criminal Code includes an offence of ‘associating with terrorist organizations’. This includes an exception if such association is only for the purpose of providing aid of a humanitarian nature.
Nigeria’s Terrorism (Prevention) (Amendment) Act 2013 includes the offence of ‘terrorist meetings’. The language of the offence is broad: it covers meetings connected with a terrorist ‘act’ and also those connected with a ‘terrorist group’ more generally. As there are no express exceptions, this provision has given rise to concern that it might include engagement for purely humanitarian purposes. In interviews conducted for the purpose of the present paper, prosecutors from the unit responsible for enforcing the Act explained that, despite its broad wording, the offence related to meetings to plan or facilitate the commission of terrorist acts. Meetings to discuss humanitarian operations were not what was contemplated, nor are they the focus of investigations.
That said, the Act also authorizes the army to gather intelligence and investigate offences under the Act, and grants it the power to arrest people for these purposes. Staff of some humanitarian organizations, operating in the areas most affected by the conflict with Boko Haram, note that the army has frequently threatened them with prosecutions or the closure of their offices if they tried to engage with the group. Staff have been detained by the army and, although this has not led to any prosecutions to date, it nonetheless has a significant intimidatory and constraining effect.
The UK’s Terrorism Act 2000 includes the offence of ‘arrang[ing], manag[ing] or assist[ing] in arranging or managing a meeting’ which a person knows is to support a proscribed organization; to further the activities of a proscribed organization; or to be addressed by a person who belongs or professes to belong to a proscribed organization. In 2015 a note was issued by the relevant government department explaining that this provision ‘permit[s] the arranging of genuinely benign meetings’.
At present, the only legal prohibition on contact with a designated group appears in the funding agreements of one donor – USAID – in relation to operations in one context: Gaza. Unlike other restrictions in USAID funding agreements, this restriction does not serve CT objectives: it only applies to Hamas and not to other groups designated by the US operative in Gaza. Its objective is political in nature: avoiding giving any legitimacy or visibility to Hamas as an authority in Gaza that could undermine or be to the detriment of the Palestinian Authority.
5.2 Humanitarian organizations’ policies
This is the position under the law or under bilateral agreements that humanitarian actors may have concluded. But the law is not the sole consideration. It sets minimum standards. Humanitarian organizations may wish to restrict their operations more than required as a matter of law for other reasons, including, as far as contact with designated groups is concerned, for reputational reasons.
Humanitarian actors operating in contexts where designated groups are active frequently have internal guidelines addressing different aspects of their contact with members of the groups, including visibility at public events, use of their logos, media use of images and a requirement that engagement be at technical level.
While this is understandable and important in the often extremely politicized contexts where such groups operate, it is fundamental that there be clarity as to the reasons for these measures. The right balance must be struck between reducing potentially problematic ‘optics’ and the adverse impact of limited contact on humanitarian operations.
5.3 The position of state representatives
It is not only the staff of humanitarian organizations who are confused. State representatives frequently conflate legal and policy restrictions that they may be subject to with legal restrictions that the humanitarian organizations they fund must comply with. While donor staff negotiating funding agreements in capitals are usually well aware that that contact is not restricted, staff at field level overseeing the implementation of the funding agreements are often less clear on point and more likely to hold humanitarian organizations to restrictions that are not included in the funding agreements.
As far as restrictions on state representatives are concerned, it is contacts with Hamas in Gaza that are most regulated. The only legally binding prohibition is the US’s Palestinian Anti-Terrorism Act. This prohibits US Government officers and employees from negotiating or having substantive contacts with members or official representatives of Hamas and other designated Palestinian organizations. This is a notable exception where a legal prohibition exists: however, it is addressed to US government staff, and not the staff of humanitarian organizations that the US may fund.
Policy restrictions, rather than legal restrictions, are more common, and cause the greatest confusion – possibly precisely because they are not based on a clear and easily accessible legal instrument. This is the case, for example, for the UN’s guidelines on contact: it is very difficult even for senior UN staff to obtain copies. Despite this, there seems to be a degree of clarity among staff that technical-level contact with Hamas, in particular in the areas of humanitarian action, early recovery and human rights, is permitted.
Policy restrictions, rather than legal restrictions, are more common, and cause the greatest confusion – possibly precisely because they are not based on a clear and easily accessible legal instrument.
Far greater confusion and a greater lack of transparency surround the position of the EU and its member states, not least because the 2006 policy on ‘Contacts with the New Palestinian Government’ is set out, not in a formal and binding EU Council Conclusion, but in a political agreement by EU ministers, containing guidelines based on a non-paper proposed by the Benelux countries. The ‘informality’ of this document means that it is not easily accessible, and this contributes to the confusion as to the nature of the restrictions: who must comply with the policy, and what is prohibited.
The policy is addressed to representatives of EU institutions and EU member states, not to humanitarian organizations whose operations the EU and its member states may fund. Even for EU and member states’ staff, it does not prohibit outright all contacts with Hamas. Contacts may take place at the ‘technical or administrative civil servants level’, including when these are ‘necessary to implement an EU mission or an agreed EU objective, an aid program’. Contact in relation to humanitarian programmes is thus expressly excluded from the restrictions. The permissibility of other kinds of contacts is less clear. What, beyond this, can be considered an EU ‘mission’ or ‘objective’ is open to interpretation. The current EU Representative for the Palestinian Territories considers that there are three key areas where the EU must implement policy objectives in Gaza: humanitarian action, development and peacebuilding.
The ‘informality’ of the EU position means that there is no evident process for reviewing and amending the policy, even though it expressly notes that the guidelines are temporary and ‘will be subjected to permanent re-evaluation’. This apparent problem may also be an opportunity. The policy has a political objective – not giving Hamas any visibility or legitimacy – and is not linked to binding CT measures. There are no legal constraints on revising the position. Member states can call for its re-evaluation – as indeed the document itself expressly foresees.
5.4 Recommendations
- The mistaken belief that CT measures or country-specific sanctions restrict contact with designated persons or groups is the greatest source of unwarranted self-restraint by humanitarian actors. These organizations must be more scrupulous in analysing the relevant measures.
- Prohibitions on contact with parties to armed conflict for humanitarian purposes would be incompatible with IHL. States must continue not to criminalize or otherwise prohibit such engagement, including in funding agreements.
- Humanitarian actors should adopt common positions opposing any emerging legal or practical measures that restrict contact.
- In view of the confusion, states and other relevant actors should consider issuing clarification that contact is not precluded. This should be addressed to recipients of funding but also to donors’ own staff responsible for overseeing the implementation of funding agreements.
