All parties to a conflict are obliged by international law to meet the needs of civilians under their control. Equally, humanitarian actors are entitled to offer to carry out relief actions that are humanitarian and impartial in character. The increased presence and activity of non-state armed groups (NSAGs) in conflicts worldwide is, however, complicating and hindering the effective implementation of this basic aspect of international humanitarian law (IHL) and humanitarian action.
In January 2016 Chatham House published a briefing in which the authors, Michael Keating and Patricia Lewis, called for all states, whether caught in conflict or funding humanitarian aid, to work towards developing a principled approach to engagement by humanitarian actors with NSAGs so as not to impede the delivery of humanitarian aid. That briefing drew on the work of the papers now brought together in this collection, which frames four aspects of why such an approach is both necessary and exigent.
In his paper, Andrew MacLeod sets out how obstacles to engagement by humanitarian actors with NSAGs will result in significant numbers of civilians being effectively discriminated against because of where they live. This threatens to undermine the humanitarian principle of impartiality, which requires that humanitarian action is carried out solely on the basis of need, with priority given to the most urgent cases of distress and no distinction made on the basis of nationality, race, gender, religious belief, class or political opinions. The issue is often complicated by the political dimensions of a conflict, which may result in the principle of impartiality challenging that of neutrality, and vice versa.
The landscape is increasingly complicated both by those perpetrating conflict and by those responding to conflict. The nature of conflicts has evolved to include ever more and diverse actors with an interest in carrying out humanitarian activities, among them militaries, politicians and, in some cases, NSAGs themselves. All such actors to a conflict, be they categorized as NSAG, humanitarian, military or (occasionally) a combination of these, vary extensively in terms of their mandate, mission and modus operandi; and, as such, finding a single approach or solution to engaging with NSAGs for humanitarian purposes is all the more challenging. The reality is that any effective humanitarian response will require a collaboration and coordination of a variety of approaches made by states, international organizations and non-governmental organizations (NGOs).
There are already a variety of models and means of engagement that facilitate the delivery of humanitarian aid in areas controlled by NSAGs. In her paper, Claudia Hofmann considers approaches taken by NGOs and private actors in the context of conflict mediation to reduce the humanitarian consequences of armed conflict: engagement with NSAGs to facilitate the immediate delivery of humanitarian aid; promotion of international norms related to protection of civilians aimed at influencing NSAG behaviour; and longer-term engagement that focuses on conflict resolution through dialogue, mediation and negotiation. There is no single solution or dominant model, but rather a recognition that usually a multifaceted approach to conflict resolution, leveraging the different strengths and advantages of each method, is most likely to be successful.
This is also true when considering how to encourage improved compliance and respect for IHL by NSAGs. Although such groups are bound to respect IHL norms, actual compliance is problematic and difficult to enforce. A variety of tools and frameworks do however exist that can be adapted to promote compliance with IHL, encouraging and reinforcing basic norms and behaviours. One such example is the adoption by, to date, 49 NSAGs of the Deed of Commitment under Geneva Call for adherence to a total ban on anti-personnel (AP) mines and for cooperation in mine action. This Deed of Commitment was launched in 2000, following the adoption in 1997 of the Mine Ban Treaty. It has resulted in pledges to moderate behaviour in order to reduce the impact of AP mines on civilians, and, inter alia, in the destruction of stockpiled AP mines and improvised explosive devices. In some cases, furthermore, adherence by NSAGs to the Deed of Commitment has acted as a catalyst for concerned states to accede to the Mine Ban Treaty.
The challenges that face humanitarian actors when engaging with NSAGs include impediments in national laws, such as counterterrorism legislation. In his paper, Ben Saul observes that the designation of certain NSAGs as terrorists, and the subsequent restrictions on engagement required by counterterrorism legislation in certain countries, threatens to undermine the humanitarian principles of neutrality and impartiality. There is often a lack of clarity as to what would constitute an infringement of counterterrorism legislation, and this legal ambiguity may be enough to deter many humanitarian organizations – which bear the brunt of the risk – from engagement with NSAGs.
While it is clear that disengaging with NSAGs is not guaranteed to cause them to improve their behaviour, a lack of engagement will almost certainly further the exclusion and isolation of civilians living in NSAG-controlled territories. It is the voices of these disenfranchised populations that are often not heard in the dialogue around humanitarian needs and responses. Yet it should surely be the actual needs and priorities of conflict-affected civilians that drive the humanitarian agenda and define the criteria of successful humanitarian assistance. In their paper, Joshua Webb and Charu Lata Hogg argue that technology – particularly mobile technology – presents opportunities for improved engagement and a deepened understanding of the expressed needs of affected communities, and that the international humanitarian community must improve its efforts to systematize and learn through their listening processes.
The current state of affairs as it affects civilians in conflict is unnecessarily unjust, prejudicing an already vulnerable group based on factors largely beyond their control. However, unless there is an improved effort on the part of states, international organizations, NGOs and NSAGs to find effective means of engagement to facilitate the delivery of humanitarian aid to all areas in need, then access to basic humanitarian assistance may be determined by where people live and who controls that territory, rather than by the level of need. The failure by states and international organizations to address this anomaly could now result in unintended changes to the fundamental principles that underpin humanitarianism.