Humanitarian Negotiations with Armed Groups

5 Negotiating on Specific Issues

5.5 Protection of Civilians in Accordance with International Law

The protection of civilians is enshrined in international humanitarian law (for international and non-international armed conflicts), customary international humanitarian law (international and non-international armed conflicts), international human rights law (applicable in times of peace and conflict); and humanitarian principles and policies. The relevant elements of international law and humanitarian principles, polices are presented in Section 3.3.

In the context of humanitarian negotiations with armed groups, negotiations on the protection of civilians focus on three inter-connected areas: (1) protection for those civilians under the influence or control of the armed group; (2) the armed group's obligations to protect those civilians; and (3) the role of humanitarian organizations in ensuring protection of those civilians. In addition to the armed group, other actors, including the State in which the civilians are located, have obligations to protect the civilians.

It should be clear to the humanitarian negotiators that the protections afforded to civilians cannot be negotiated; what can be negotiated are the approaches and strategies by which the armed group and the humanitarian organization can work to ensure the protections afforded to civilians are operationalized.

When negotiating with armed groups to ensure protection of civilians, humanitarian negotiations should consider the following points:

Members of the armed group may not be aware of their obligations to protect civilians, nor of the legal mechanisms that can hold them accountable for failure to protect civilians or for causing harm to civilians. Part of the process of negotiation, therefore, should focus on raising awareness among members of the armed group regarding the need for civilians to be protected in armed conflicts and the armed groups obligations in this regard;
Since the actual protections themselves (legal provisions, etc.) cannot be negotiated, humanitarian negotiators should attempt to demonstrate to the armed group, using a persuasive approach to negotiation that it is also in their interest to ensure the protection of civilians;
Humanitarian negotiators should generate options (e.g. by brainstorming within their own organizations, and with the armed group negotiators) for consideration that can lead to enhanced protection of civilians. The options will depend on the particular context, but could include, for example, agreement on procedures to register and arrange for appropriate care of orphaned children in areas controlled by the armed group; agreement by the armed group not to engage in abduction and sexual exploitation of girls;
Even though the armed group is not a party to the international human rights treaties, the human rights themselves can provide a basis for discussion with armed groups on the type and scope of protections that need to be afforded to civilians.

Points to Remember—Negotiating on Specific Issues

NEGOTIATION AND THE TWO DIMENSIONS OF HUMANITARIAN ACTION

Negotiations on issues of protection will revolve around securing agreement with the armed group to ensure its behaviour is consistent with the group's obligations under international law. In preparation for negotiations, humanitarian negotiators should identify the elements of international law that relate most directly to the particular context.
In negotiations focusing on issues of provision of humanitarian assistance, operational issues feature more prominently in the negotiations.
Depending on the primary focus of the negotiations (protection or assistance), the roles of the parties in implementing any agreed outcome will change.

NEGOTIATING GROUND RULES FOR HUMANITARIAN ACTION

Humanitarian negotiators should be clear about the purpose and scope of any ground rules to be agreed with an armed group.
Any common ground rules should be based on principles agreed in advance by the participating humanitarian organizations.
Agreement on ground rules does not infer or accord legitimacy to the armed group.
Based on existing guidance, humanitarian negotiators can draft an outline of the ground rules prior to negotiations (See Table 4).

NEGOTIATING HUMANITARIAN ACCESS

Humanitarian negotiators should present the issue of access as one of access to meet the humanitarian needs of a population, rather than access to a particular territory.
Humanitarian organizations should approach the negotiations with a set of working principles of humanitarian access to guide the dialogue on the mechanics of access.
Humanitarian negotiators should make it clear to the armed group, and to parties external to the negotiations, that the access negotiations do not confer recognition by the humanitarian organization of the armed group or its control over a population or territory.
In situations where the humanitarian needs of the population to be accessed are not precisely known, the early stages of the negotiations could usefully focus on an assessment mission to determine more precisely humanitarian needs.
Access negotiations should include consideration of: (i) logistics; (ii) liaison arrangements; (iii) need to communicate agreed access procedures within organizations.

PROTECTION OF CIVILIANS IN ACCORDANCE WITH INTERNATIONAL LAW

Humanitarian negotiators should raise awareness among members of the armed group on the need of civilians to be protected in armed conflicts.
Since the actual protections themselves cannot be negotiated, humanitarian negotiators should attempt to demonstrate (using a persuasive approach to negotiation) to the armed group that it is also in their interest to ensure the protection of civilians.
Humanitarian negotiators should generate options for consideration that can lead to enhanced protection of civilians.
Even though the armed group is not a party to the international human rights treaties, the human rights themselves can provide a basis for discussion with armed groups on the type and scope of protections that need to be afforded to civilians.