6 So You're Negotiating... Now What?

6.4 Enforcement and Dealing with Non-Compliance

Any agreed outcome reached during humanitarian negotiations should include methods of enforcement of the agreement and dispute resolution mechanisms. Moreover, humanitarian negotiations should consider the options available to their organizations in the event of noncompliance with the agreement on the part of the armed group.

6.4.1 Enforcement

Enforcing the provisions of an agreement reached between humanitarian actors and an armed group can generally be undertaken by coercing or providing incentives to the armed group. Humanitarian organizations are not well placed to apply coercive pressure to armed groups to enforce the provisions of an agreement. However, other third party States, regional organizations or UN peacekeeping/peace-enforcement troops can assist in applying graduated diplomatic or other pressure to ensure that the agreement is enforced.

Through persuasion and persistence, humanitarian organizations can continue negotiating with the armed group on issues related to enforcement of the agreement, highlighting the legal obligations of the armed group, and the accountability mechanisms under international law (See Section 3.3).

6.4.2 Dispute Resolution Mechanisms

Mechanisms to resolve disputes associated with implementation of an agreement should be identified by the humanitarian organization and the armed group during the negotiations, and Mechanisms to resolve disputes associated with implementation of an agreement should be identified by the humanitarian organization and the armed group during the negotiations, and should be incorporated into the provisions of any oral or written agreement. As a starting point for resolving disputes, the humanitarian organization(s) and armed group(s) should undertake to document any disputed issues as a starting point for seeking resolution of the issue concerned.
Possible dispute resolution mechanisms could include, for example:

• Establishment of an implementation monitoring commission to include representatives from the armed group and humanitarian organizations which would consider, and attempt to resolve by consensus, any disputed issues associated with implementation of an agreement.
  
• Appointment of a neutral mediator to assist the parties in resolving disputes.
  
• Referral of disputed provisions to an independent, non-binding arbitration mechanism ; a neutral organization not participating in the negotiations could arbitrate on disputed aspects of an agreement. For humanitarian organizations, it should be made clear that any solution arising from arbitration would have to be in coherence with the intent of the original agreement, and would further need to satisfy the humanitarian principles, humanitarian policies and the relevant provisions of international law (See Chapter 3).

6.4.3 Dealing with Non-Compliance

When an armed group fails to comply with the provisions they agreed to implement, and when enforcement actions fail, the humanitarian organization may need to consider one or more courses of action:

• Enter into a further series of negotiations with the armed group to arrive at an agreed outcome which may resolve the issues of non-compliance arising from the original agreement;
  
• [As in the case of enforcement (see above)] Identify and engage (directly or indirectly) third party States, regional organizations or UN/donor State political representatives, in advocacy and humanitarian diplomacy to get these actors to apply pressure (diplomatic, other) to the armed group to comply with the agreement.
  
• If non-compliance with the agreement results in an operating environment which compromises humanitarian security; consider, as a last resort, suspension of humanitarian activities until such time as a conducive humanitarian operating environment is re-established.