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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.

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