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News Roundup 11 January – 17 January

January 20, 2021
  1. Want global stability? Modify the U.S. approach to dealing with nonstate armed actors
  2. Ethiopia: A partial view of the humanitarian fallout emerges in Tigray
  3. Insecurity and bureaucracy hampering aid to Ethiopia’s Tigray region
  4. Serious repercussions likely to follow US plan to designate Yemen combatants terrorists, UN warns
  5. US ‘terror’ label on Yemen’s Houthis could hit peace talks, aid
  6. Colombia says ex-FARC reintegration must continue, despite setbacks
  7. The key trends to watch this year on nonstate armed actors
  8. US Consulate a turning point for disputed Western Sahara
  9. UN counter-terrorism chief urges continued vigilance against ‘real’ ongoing threat
  10. Rebels launch attacks on Central African Republic’s capital

News Roundup 4 January – 10 January

January 13, 2021
  1. Central African Republic: A disputed election and a strange rebel alliance
  2. Ethiopia Accuses Sudan of Killing Civilians in Border Row
  3. Responding to neglected crises in the Sahel
  4. Afghan rivals to resume talks as civilian killings sow suspicion
  5. France opens investigations into former DR Congo rebel leader after Paris arrest
  6. On the march for peace in Myanmar
  7. Callamard calls for ‘clear, explicit and unambiguous standards’ to protect civilian planes during conflicts
  8. Colombia’s illegal armed groups lost more than 5,000 members in 2020 -military commander
  9. Guterres ‘shocked’ at massacre of civilians in eastern DR Congo
  10. Security Council has critical role in addressing fragility and conflict: UN chief

Most Read Posts in 2020

January 11, 2021

Happy new year to our readers! We want to take this opportunity to wish you all a wonderful 2021 and thank you for reading the blog in 2020. Below is a list of the 5 posts that received the most views last year. We hope to have relevant discussions about armed groups and international law this year:

  1. Katharine Fortin, Podcasts recommendations – legal, non-legal and pure escape (April 2020)
  2. Tadesse Kebebew & Joshua Niyo, Instant Non-international Armed Conflict? Classifying the situation in Northern Ethiopia under IHL (December 2020)
  3. ICRC, The legal regime protecting persons living in territory under the control of non-State armed groups (May 2020)
  4. Elvina Pothelet, Life in rebel territory: is everything war? (May 2020)
  5. Annyssa Bellal, From cockroaches to rosebuds: changing the international community’s perception of non-State armed groups (May 2020)

News Roundup 28 December – 3 January

January 6, 2021
  1. Yemen: Fatal airport attack ‘potentially amounts to a war crime’ – UN envoy
  2. Viewpoint: Why Ethiopia and Sudan have fallen out over al-Fashaga
  3. Colombia’s FARC delivers a fraction of pledged peace deal assets by deadline
  4. UN confirms closure of Darfur peacekeeping mission
  5. UN-AU mission in Sudan’s Darfur ends mandate after 13 years
  6. United Nations, African Union reiterate commitment to Sudan, as joint mission ends operations
  7. Guinea-Bissau: UN chief commits to continued support as peacebuilding office closes
  8. Myanmar military extends non-operation period against armed groups for one more month

News Roundup 21 December – 27 December

December 29, 2020
  1. UN probe accuses Mali army of war crimes, armed groups of crimes against humanity
  2. CAR rebel groups announce ceasefire ahead of Sunday vote
  3. Russia, Rwanda send military support to Central Africa Republic to quell election violence
  4. Malian refugees return to Burkina Faso camp nine months after violent attacks
  5. Iraq: Trump pardons for Baghdad Blackwater guards ‘contributes to impunity’ says UN rights office
  6. Illegal Gold Mining Funding Armed Groups in Sahel: Interpol
  7. Mozambique’s Cabo Delgado: Militants advance as aid access shrinks
  8. Return to ‘path of meaningful negotiations’, UN envoy urges Israelis, Palestinians
  9. Libya’s warring sides begin prisoner exchange

News Roundup 14 December – 20 December

December 23, 2020
  1. Afghan government, Taliban to resume peace talks in January
  2. Armenia and Azerbaijan exchange first prisoners after Karabakh war
  3. Standing up to the bandits: A Nigerian community looks to forge its own peace
  4. What next for conflict-hit Burkina Faso after Kabore re-election?
  5. Nigeria: Stop Jailing Children for Alleged Boko Haram Ties
  6. India, Pakistan repeat war of words over ‘cross-border terrorism’
  7. Ukraine: ICC investigation a crucial element for comprehensive international justice
  8. UN documents 375 killings in Colombia in 2020, urges Government action
  9. Ethnic profiling of Tigrayans heightens tensions in Ethiopia
  10. ICC prosecutor sees ‘crimes against humanity’ in Philippines

Geneva Call Report: Conduct of Hostilities by Armed Non-State Actors

December 17, 2020

This week, Geneva Call published a new report on the Conduct of Hostilities by Armed Non-State Actors (ANSAs). The report emerges out of the third edition of the Garance Talks, which took place on February 2020, and focuses on the application of the rules of IHL governing this topic: distinction, proportionality and precaution.

The 2020 Garance Talks brought together four ANSAs from various regions of the world and experts from academia and international humanitarian organizations to discuss current challenges faced by ANSAs when attempting to comply with humanitarian norms. The Garance Talks aim at identifying ways forward in order to enhance their compliance with their obligations under international law. An important added value that this activity generates is an understanding of these actors’ perspectives on the legal and policy discussions that concern them.

The report includes a legal analysis on the topic and some selected examples of ANSAs’ practice and views on the rules applicable to the conduct of hostilities in armed conflict. Two main challenges were identified from the discussions. Firstly, from a “capacity” perspective, it remains unclear whether ANSAs have the capacity to implement rules that were primarily designed for the armed forces of States, which usually – although not always – have a more sophisticated level of organization than ANSAs. There is an assumption, however, that parties to the conflict: (i) will be able to use a certain type of uniform to differentiate their fighters from those not participating in the hostilities; (ii) will have the knowledge on how to undertake a proportionality assessment; and (iii) will be able to apply precautionary measures, both in the planning and execution of an attack and those against the effects of attacks, as envisaged in IHL. Second, despite the existence of these practical difficulties, the discussions demonstrated a general agreement among ANSAs on the importance of these rules. Yet certain definitions, such as those of “civilian” and “direct participation in hostilities”, varied according to each context, showing the existence of interpretative differences between the ANSAs themselves.

The 2020 edition of the Talks was organized in the context of a research project undertaken by the Geneva Academy of IHL and Human Rights and Geneva Call, which aims at understanding ANSAs’ practice and interpretation of humanitarian norms.

News Roundup 7 December – 13 December

December 16, 2020
  1. Lebanon: UN-backed tribunal sentences Hezbollah militant in Hariri assassination
  2. Ethiopia: UN refugee agency calls for ‘unfettered access’ to Tigray
  3. ‘Quickly restore the rule of law’ in Ethiopia’s Tigray, urges Guterres
  4. COVID-19 fuels growing conflict and displacement in Colombia
  5. India Accuses China of Helping Rebel Groups on Myanmar Border
  6. China Aiding Rebel Groups in India’s Northeast: Report
  7. Yemen: Houthi Terrorism Designation Threatens Aid
  8. Nigeria-Boko Haram: Prosecutor urges ICC inquiry into war crimes
  9. Sudan at critical juncture in path towards democratic transition, Security Council hears
  10. Libyan Women Seek Greater Participation in Peace Talks

Negotiating Peace with (Proscribed) Non-State Armed Groups

December 16, 2020

Dr Asli Ozcelik Olcay (@AsliOzcelik_) is a Postdoctoral Researcher in International Law at the University of Glasgow, where she is also the Academic Coordinator of the Glasgow Centre for International Law and Security. Her research explores the role of international law in peace-making.

“We don’t negotiate with criminals… We bring them to justice, not to the negotiating table”, responded an aide to the Prime Minister Abiy Ahmed of Ethiopia to calls by the African Union on the Ethiopian government to enter into talks with the Tigray People’s Liberation Front (TPLF) to end the conflict that erupted in the country last month (see also the “Argument” by the former Prime Minister of Ethiopia against talks with the TPLF here). The longstanding “we don’t negotiate with criminals/terrorists” mantra has once again emerged as an argument against peace negotiations with non-state armed groups (NSAGs), particularly those designated as terrorist organisations, also in other ongoing conflicts. In Mali, the French Foreign Minister opposed the attempt of Mali’s Interim Prime Minister to enter into dialogue with the NSAGs fighting in the north of the country, including Al-Qaida-affiliated, proscribed (see, e.g., here, here and here) Jama’at Nusrat al-Islam wal-Muslimin, on account of the terrorist designation of such groups. Proscribed groups, or groups associated to proscribed groups, are also excluded from both the Geneva and Astana tracks in the Syrian peace process.

Beyond episodic strategies, whether certain (members of) NSAGs are “beyond the pale” has become a general consideration in peace-making and peace mediation. For instance, the UN Guidance for Effective Mediation states (2012, p. 11):

“Arrest warrants issued by the International Criminal Court, sanctions regimes, and national and international counter-terrorism policies … affect the manner in which some conflict parties may be engaged in a mediation process. Mediators need to protect the space for mediation and their ability to engage with all actors while making sure that the process respects the relevant legal limitations.”

The aim of this blog post is to explore the extent to which peace negotiations with NSAGs are proscribed by (international) law, as well as the policy considerations at play in such engagement. The blanket exclusion approach, adopted in the context of the current conflicts mentioned above, does not seem to be warranted on either ground.

Legal limitations to negotiations with non-state armed groups

From a legal perspective, negotiating with members of NSAGs may face limitations mainly where: (i) a group is designated as a terrorist organisation, or (ii) an engaged member of the group is the subject of an arrest warrant or summons issued by the International Criminal Court (ICC). As to the former, although there is no such explicit prohibition in international law, some domestic laws criminalise certain forms of engagement with NSAGs. As to the latter, essential contacts with persons subject of an arrest warrant are allowed, however talks with an indicted person are likely to take place outside the territory of any State Party to the Rome Statute to avoid non-compliance with a potential request by the Court for the arrest and surrender of the person.

Negotiating with proscribed non-state armed groups

The listing system of the United Nations and the associated targeted sanctions against the designated individuals and entities, such as asset freeze, arms embargo, and travel and visa bans, do not foreclose negotiations with the targeted individuals and entities. Yet sanctions regimes can “complicate negotiations by creating (or not removing) obstacles to participation in negotiations” (Biersteker, p.3), for instance, by stigmatising engagement with targeted individuals or NSAGs due to travel bans, or by discouraging targeted individuals or NSAGs from negotiations. In practice, there has been a distinction between NSAGs designated as terrorist groups and NSAGs that have been target of sanctions without such designation. Biersteker finds that between 1991-2014 “targeted sanctions [were] imposed in conjunction with formal negotiations 97% of the time”, except for sanctions against Al-Qaida and associated groups (p. 6). As such, negotiations have been largely absent from the UN’s “toolbox” when dealing with designated terrorist groups. Similar to the UN, the listing regime and sanctions imposed by the European Union (EU) do not outrightly prohibit negotiations or contact with such groups, but group-specific measures may include a “no-contact” policy. For example, the Middle East Quartet (comprising the United Nations, the United States, the European Union and Russia) has ruled out negotiations with Hamas (Haspeslagh and Dumasy, p. 7).

Legal obstacles to engaging members of proscribed terrorist groups rather emanate from domestic laws, which criminalise certain forms of engagement with such groups, for instance, by supplying information (such as providing expertise during peace negotiations), providing material support (such as training in conflict resolution and peacebuilding), or arranging meetings (see below for more details). In this respect, Boon-Kuo et al. distinguish between intention-based and list-based liability regimes. The former requires some form of knowledge or intention that the provided information or support will contribute to the criminal activities of the group. For instance, Directive (EU) 2017/541 of The European Parliament and of the Council of 15 March 2017 on combating terrorism requires the offence of “participating in the activities of a terrorist group, including by supplying information or material resources … with knowledge of the fact that such participation will contribute to the criminal activities of the terrorist group” to be punishable in Member States (Art 4(b)).

On the other hand, list-based liability regimes criminalise any support provided to designated groups even in the absence of such knowledge or intention (p. 15). For instance, the so-called “material support” statute in the US establishes as a federal crime certain forms of material support to designated terrorist organisations (18 U.S.C. § 2339B), for the commission of which it suffices that the perpetrator knows of the designation of the group as a foreign terrorist organisation regardless of his/her knowledge of contributing to the group’s criminal activities. In a landmark case brought against the statute, Holder v Humanitarian Law Project, the US Supreme Court opined that “trainings in humanitarian and international law to peacefully resolve disputes” or teaching how to present claims to mediators and international bodies come within the scope of the offence reasoning that “providing material support to a designated foreign terrorist organization—even seemingly benign support—bolsters the terrorist activities of that organization” (pp. 31-32). As the statute provides for extraterritorial jurisdiction over the designated offence, inter alia, on the basis of nationality, permanent residence or habitual resistance of the offender and where “an offender is brought into or found in the United States, even if the conduct required for the offense occurs outside the United States”, it has been considered a significant obstacle to peacebuilding efforts by US nationals and non-nationals alike, and in and beyond the US (see here and A/HRC/23/39, para 23).

In the UK, “a person commits an offence if he arranges, manages or assists in arranging or managing a meeting which he knows is (a) to support a proscribed organisation, (b) to further the activities of a proscribed organisation, or (c) to be addressed by a person who belongs or professes to belong to a proscribed organisation” (Terrorism Act 2000, Section 12(2)). However, the explanatory notes clarify that the Act does not criminalise “genuinely benign meetings … at which the terrorist activities of the group are not promoted or encouraged, for example, a meeting designed to encourage a designated group to engage in a peace process” (p. 7). Such legal clarification in domestic legal systems is significant: although prosecution on these grounds has been rare, as Boon-Kuo et al. point out, “[c]ounterterrorism lists realise their coercive potential through disrupting otherwise lawful associations and forcing actors to change their behaviour to avoid liabilities, rather than simply through initiating criminal proceedings” (p. 8) (see also here).

Negotiating with those subject to an arrest warrant or summons issued by the International Criminal Court

Negotiations with alleged or indicted perpetrators of international crimes have become a sticking point in many peace processes such as in Bosnia, Uganda and Sudan. The Office of the Prosecutor (OTP) of the ICC has issued guidelines asking States Parties to “eliminate non‐essential contacts with individuals subject to an arrest warrant issued by the Court” and if the contact with the group is essential, “to interact with individuals not subject to an arrest warrant” where possible, in order to marginalise the suspects and achieve their arrest/surrender (Prosecutorial Strategy 2009-2012, para 48). The UN Guidance on Contacts with Persons Subject of Arrest Warrants or Summonses Issued by the ICC also states that UN officials, “as a general rule”, should not have meetings with such persons (p. 2), while they can engage with persons subject of summonses to appear insofar as they continue to cooperate with the Court (p. 4). However, if contact is essential and the alternative of engaging with other individuals from the same group or party is not possible, officials may exceptionally interact with a person subject of an arrest warrant “where this is an imperative for the performance of essential United Nations mandated activities” (p. 3).

As such, both the OTP’s and UN’s guidelines leave room for essential contacts with persons subject of arrest warrant, and contact for the purpose of peace negotiations may be justified as essential. In fact, in the context of the negotiations concerning the North-South conflict and the Darfur conflict in Sudan, UN officials met with Sudanese government officials and, when considered essential, with the then President Bashir (Rodman, p. 458). However, any engagement with a person subject to an arrest warrant is likely to take place outside the territory of any State Party to the Rome Statute as, while the person is on the territory of a State Party, the Court “may transmit a request for the arrest and surrender of a person” (Art 89).

Engaging “Negotiable” Non-State Armed Groups

Traditionally, states have been reluctant to engage NSAGs due to the fear of legitimisation of (terrorist) violence and the possibility of the exploitation of negotiations, or any accompanying ceasefire, by NSAGs to gain military leverage on the ground. Following 9/11 and the War on Terror, the “we do not negotiate with terrorists” approach has become entrenched also in the international policy and practice of peace-making (see here, here, here). The fragmentation of NSAGs in today’s protracted armed conflicts and the surge in “violent extremism” and “jihadi violence” cast further doubt over the possibility and pointof engaging such groups. Complex, diffused, transnational, and deterritorialised nature of extremist groups complicates the identification of entry points for engagement and blur their connections to a local population and their grievances. Although there is evidence of tactical negotiations with such groups towards ceasefires and exchange of prisoners, negotiations concerning a peace settlement and the post-settlement political order may seem futile, or unacceptable, to both extremist groups and their possible interlocutors as their ideological demands would not be accommodated (Fazal, p. 32-33). As such, military defeat rather than negotiated settlement appears as a more likely outcome against extremist NSAGs (Kalyvas, p. 44).

That said, whether to cast a NSAG as “beyond the pale” requires context-specific analysis and conceptual caution. As the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism has recently highlighted, armed conflict and terrorism are increasingly conflated, leading to the characterisation of any NSAG engaged in an armed conflict as a terrorist group (A/75/337 (2020), para. 13), which results in a shrinking humanitarian and peacemaking space. Furthermore, even among terrorist groups, scholars and practitioners distinguish between “absolutist” or “nihilist” and negotiable terrorist groups (Zartman 2003; de Soto quoted in Haspeslagh, p. 1). Among negotiable groups may be, for instance, local extremist groups which are associated with transnational networks and at the same time have strong links to a pre-existing insurgency and local grievances, such as the Al-Qaida-linked extremist groups in northern Mali that have emerged in the context of the Tuareg insurgency  (UN/World Bank, p. 23). The Moro Islamic Liberation Front in the Philippines has also proven negotiable despite links to Al-Qaida (Toros, p. 420) and in fact concluded a comprehensive peace agreement with the Philippine government in 2014 (in 2009, the group also signed an action plan on child soldiers which was welcomed by the UN). Eric Rosand and Marc Sommers have recently suggested that the US government “explore negotiated settlements with groups that support violent extremists in whole or in part”, as well as investing in local counterterrorism and conflict resolution efforts, as “[t]he security-heavy approach is falling short because it exacerbates factors that militant groups exploit to provoke violence”.

Conclusion

Research suggests that inclusive negotiations, where all armed groups that can disrupt a peace process if excluded are engaged, are less likely to encourage violence than exclusion (see here, here). Yet, negotiations with some NSAGs in certain circumstances appear to be “beyond the pale” where engagement with a NSAG comes within the scope of a relevant legal limitation and/or negotiations appear futile or counterproductive from a policy perspective. However, where feasible, legal limitations leave considerable scope for diplomatic discretion to focus on underlying grievances and the relationships that need to be transformed. The “diplomatic space” in each peace process needs to be delineated in light of the applicable legal limitations and their addressees rather than simply focusing on the designations of proscription or criminality.

Israel Law Review – Call for Papers

December 15, 2020

The Israel Law Review invites submissions on areas of interest in human rights, international and public law.

The Israel Law Review is a double-blind peer reviewed journal established in 1966, published by Cambridge University Press under the auspices and management of the Minerva Center for Human Rights at the Law Faculty of the Hebrew University of Jerusalem. Under this stewardship, it focuses on scholarship in the fields of human rights, public law, and international law.The Chief editors of the journal are Prof. Malcolm Shaw, QC, University of Leicester, UK, and Prof.
Yuval Shany, Hebrew University of Jerusalem, Israel. Issues of recent years have featured contributions by prominent scholars such asMartti Koskenniemi, Lech Garlicki, David Kretzmer, Yuval Shany and Emanuela-Chiara Gillard.

The journal publishes full-length articles, shorter pieces addressing topical issues under the rubric of ‘opposing views’, as well as book reviews and review essays. We aim to present scholarship that is representative in terms of gender, geographical distribution, and viewpoint. We accept submissions on a rolling basis. 

Consideration will normally be given only to original material that has not previously been published and is not being under consideration elsewhere. All submissionsare subjected to a double-blind review process. For further details on our publication policy and process see here.

For queries and additional information, please contact the academic editor, Prof. Yaël Ronen, at yael.ronen@mail.huji.ac.il.