Dialogue with an opposition group and community in Darfur, 2007 Dialogue with an opposition group and community in Darfur, 2007 Photo credit: Conflict Dynamics International
Preserving the integrity of humanitarian negotiations
by Gerard Mc Hugh and Simar Singh August 2013

Humanitarian negotiation is a special form of engagement, for exclusively humanitarian purposes, with communities, parties to armed conflict, governments and other actors. In armed conflicts and other situations of crisis, humanitarian negotiations can often be a necessity. These negotiations are carried out according to humanitarian principles and have a unique and strong foundation in international law and policy that many other forms of engagement do not enjoy. For these and other reasons humanitarian negotiations occupy a distinctive ‘space’ among other forms of engagement.

However, in the face of numerous pressures the unique space for humanitarian negotiations is being eroded. This not only undermines the sustainability of existing humanitarian efforts, but also leads to missed opportunities for securing better humanitarian outcomes. There is a need to preserve the integrity of humanitarian negotiations if they are to remain an effective and powerful tool. At a minimum, this means that the objectives, arrangements, processes and outcomes of humanitarian negotiations should not be compromised in a way that diminishes their exclusively humanitarian nature.

This article highlights the importance of preserving the integrity of humanitarian negotiations as a means of achieving better humanitarian outcomes. It suggests some initial steps that can be taken to achieve this objective.

What makes humanitarian negotiations unique?

The effective and timely provision of humanitarian assistance and protection is contingent on the ability of humanitarian personnel to be able to engage freely with all relevant actors in the areas in which they operate. This includes affected communities, government authorities, civil society, donor organisations, UN bodies, state forces, non-state armed groups and development and humanitarian actors. Such humanitarian engagement can take several forms, including liaison, advocacy, negotiation and mediation.

Humanitarian negotiations have been defined as negotiations undertaken by civilians engaged in managing, coordinating and providing humanitarian assistance and protection for the purposes of ensuring the provision of humanitarian assistance and protection to vulnerable populations; preserving humanitarian space; and promoting respect for international law.+Gerard Mc Hugh and Manuel Bessler, Humanitarian Negotiations with Armed Groups: A Manual for Practitioners (New York: United Nations, January 2006), p. 5. Humanitarian negotiations are thus a distinct type of humanitarian engagement, one that involves seeking a mutually acceptable way forward when humanitarians and other parties are not initially in agreement on a particular issue or set of issues. Humanitarian negotiations represent a discrete part of the broader body of practice undertaken by a range of actors on engagement for the purposes of the protection of civilians.

Humanitarian negotiations are unique because of how they are undertaken – in an impartial, neutral and independent manner – and also because of what they are intended to achieve: better humanitarian outcomes. Therefore, in practice as well as in terminology, humanitarian negotiations differ from negotiations relating to peacebuilding, human rights and other issues.

Further reinforcing this unique character are provisions of international law and policy that provide a mandate for the conduct of humanitarian negotiations. The normative framework pertaining to this type of engagement includes provisions from multiple sources of international law, in particular general international law and International Humanitarian Law.+See for example Geneva Convention III, Art. 9; Geneva Convention IV, Arts. 10, 17, 23, 59; Additional Protocol I, Art. 70; Additional Protocol II, Art. 18; UN Convention on the Rights of the Child, Art. 22; and ICRC, Customary International Humanitarian Law, Rules 55 and 56.

In the body of general international law, the provisions of numerous resolutions and decisions of the UN Security Council, the UN General Assembly and the UN Economic and Social Council, as well as various international principles and frameworks, provide a basis for undertaking humanitarian negotiations with both state and non-state actors.+See for example UN Security Council resolutions 1612 (2005), 1882 (2008), 1894 (2009); UN General Assembly Resolution 62/95 (2007); UN Economic and Social Council Decision 2003/5 (2003); African Union, African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (‘Kampala Convention’) (2009) Art. 5(7); UN Economic and Social Council, Guiding Principles on Internal Displacement (1998) Principle 25 (3). Of particular relevance is UN General Assembly Resolution A/46/182 of 1991, which explicitly affirms the need for UN humanitarian actors to enter into negotiations, when necessary, with all parties to a conflict in order to facilitate humanitarian action.+UN General Assembly Resolution A/46/182 (1991), Paragraph 35(d).

The need to negotiate with all parties to a conflict for the purposes of ensuring access to and the protection of vulnerable groups has been reaffirmed in reports of the UN Secretary-General on the protection of civilians in armed conflict, children in armed conflict and women, peace and security. For example, in his 2010 report on the protection of civilians in armed conflict, the UN Secretary-General stated that ‘engagement with armed groups for humanitarian ends is clearly possible and, indeed, necessary in order to negotiate safe humanitarian access to those in need’.+UN Security Council, Report of the Secretary-General on the Protection of Civilians in Armed Conflict, S/2010/579 (2010), Paragraph 55.

In the body of International Humanitarian Law, Article 3 common to the four Geneva Conventions of 1949 (Common Article 3) states that ‘[a]n impartial body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict’. This is often referred to as the ‘humanitarian initiative’. This offer by itself is likely to necessitate engagement with the parties to a conflict; if the offer is accepted the ensuing modalities may further require humanitarian negotiations.

Current challenges to humanitarian negotiations

It is clear then that the need and normative basis for negotiation with all relevant parties for humanitarian purposes are well established, and could even be considered a matter of customary practice. However, several factors present serious challenges to the effective conduct of humanitarian negotiations, and consequently impinge on humanitarian assistance and protection. These include increasingly insecure operating environments for humanitarian actors; the criminalisation by certain states of engagement with various proscribed groups; and the continuing trend towards the integration of UN political, development and humanitarian functions. Some of these factors have eroded the space for humanitarian negotiations by compromising their integrity.

In addition to these external factors, a number of internal factors, within or between humanitarian organisations, can lead to humanitarian negotiations being undertaken in a manner that is not consistent with the core humanitarian principles of humanity, neutrality, impartiality and independence. These include inadequate or inappropriate internal policies and strategies on negotiations and the lack of adequate organisational capacity to conduct effective humanitarian negotiations.

A number of these factors were at play in Afghanistan in 2008, when the government banned all contact by international organisations with ‘Anti-Government elements’, even for humanitarian purposes. With this limitation on their independence and a lack of willingness to challenge the government, several humanitarian organisations were unable to work directly in certain areas (as this necessitated negotiation with non-state armed groups), reducing humanitarian assistance to civilian populations living in those areas. A handful of organisations undertook negotiations with non-state armed groups through intermediaries as a means of (indirectly) reaching agreement on the implementation of critical humanitarian programmes. However, this practice raised additional risks, not least the prospect of exposing intermediaries to security threats (especially in cases where the intermediaries were community leaders or tribal elders). In addition, there was a risk that intermediaries would not communicate the objectives and intended outcomes of the negotiations as humanitarian organisations intended them.

Similarly, in the occupied Palestinian territories (oPt) in 2010 some donor governments adopted a policy of ‘no contact’ between humanitarian organisations and Hamas, the de facto authority in the Gaza Strip. In reality a ‘don’t ask, don’t tell’ policy was tolerated. However, many humanitarian organisations, apprehensive of the uncertain consequences of going against some donors’ demands, intentionally held back on their negotiations and engagement with the authorities in the Gaza Strip. This directly resulted in missed opportunities for improving humanitarian outcomes and had wider ramifications for future progress on a range of humanitarian issues.

Linking humanitarian negotiations with political or other negotiations also compromises their integrity and can prove detrimental to humanitarian efforts. This was the case during 2012 and early 2013, when regional and international efforts to facilitate dialogue on humanitarian access between the government of Sudan and the Sudan People’s Liberation Movement-North (SPLM-N), as the parties to the conflict in the border states of Southern Kordofan and Blue Nile, at times tied humanitarian objectives to political and security objectives in the dialogue process and proposed agreements. Indeed, the presentation of a joint proposal by the UN, the African Union and the League of Arab States (the ‘Tripartite Proposal for Access to Provide and Deliver Humanitarian Assistance to War-Affected Civilians in Blue Nile and Southern Kordofan States’) in February 2012 set a political tone for the negotiations that followed, around the operational modalities for humanitarian access. One important consequence of conflating political and humanitarian objectives in the proposed agreement was that, if either party was not ready to proceed on political and security issues at a particular time, progress on humanitarian access was also hampered.

An additional challenge is that political actors may attempt to use humanitarian negotiations as a ‘soft’ starting point for political negotiations. Some governments and non-state armed groups may be willing to enter into humanitarian negotiations that are designed to lead into political negotiations, in the hope that they will gain legitimacy in the eyes of international organisations and actors by taking this first step.+David Petrasek, ‘Vive la Différence? Humanitarian and Political Approaches to Engaging Armed Groups’, Accord, no. 16, 2005. When humanitarian negotiations are presented as a stepping stone to political negotiations this can however diminish incentives for full implementation of any agreed outcomes concerning humanitarian issues. This was the case in Côte d’Ivoire in 2005, when the Forces armées des Forces nouvelles (FAFN) entered into negotiations to sign an Action Plan to end the recruitment and use of children in their ranks. In doing so, the FAFN’s main intent was to ensure that it was ‘de-listed’ (a political action undertaken by the UN) from the annex of the annual report of the UN Secretary- General on Children and Armed Conflict, a step the group hoped would assist in enhancing its political legitimacy. Ultimately the group stopped short of delivering fully on its commitments to end all grave violations against children, once its political objective of being de-listed had been achieved.

The impact of some of these challenges can be countered by the approach that humanitarian agencies take, underscoring the critical importance of adhering to humanitarian principles. In the Democratic Republic of Congo (DRC) in early 2010, two international humanitarian organisations enjoyed access to locations in North and South Kivu provinces when many UN and other humanitarian organisations could not enter these same areas. One of the reasons why these organisations were able to sustain access was that they had made determined efforts to negotiate with all parties active in these areas in an impartial manner, and had worked with a clear separation from the UN peacekeeping mission, which was considered by some to be a party to the conflict.

Similarly, during different stages of the conflict in Sri Lanka between 2003 and 2009, some humanitarian organisations managed to successfully negotiate with both the government and the Liberation Tigers of Tamil Eelam (LTTE) on a range of humanitarian issues, including access to areas affected by conflict and the release of children in the ranks of armed forces and groups. While they alone were not sufficient, conducting negotiations for exclusively humanitarian reasons and maintaining a neutral approach were among the reasons cited by these organisations for the successful outcome of their negotiations.

Preserving the integrity of humanitarian negotiations

For humanitarian personnel to use humanitarian negotiations as an effective tool to facilitate humanitarian action, there is an urgent need to actively preserve the integrity of these negotiations in the face of the pressures described above. As a first step, this means ensuring that humanitarian negotiations are, like any other humanitarian activity, undertaken in accordance with core humanitarian principles. This includes, for example, humanitarian organisations refusing to accept externally imposed conditions on whom they can negotiate with, including conditions imposed by donors and by the governments of the countries in which they operate. In Afghanistan, for example, some humanitarian organisations have opted not to accept funding from donors that are parties to the conflict.

It is also critical that the objectives, processes and outcomes of humanitarian negotiations are not tied to political or other objectives.+OCHA Policy Development and Studies Branch, Peacebuilding and Linkages with Humanitarian Action: Key Emerging Trends and Challenges, Brief No. 7, 2011. Humanitarian organisations should thus not participate in mixed-objective or purposely conflated (political and humanitarian) negotiations. So-called ‘multimandate’ organisations or human rights advocacy organisations, as two examples, may not adhere to a strictly neutral, impartial and independent approach. These organisations therefore cannot expect effective humanitarian outcomes from negotiations. In many cases, communities themselves evaluate how neutral and impartial relief organisations are, based on their actions (not their words). This is why it is important that humanitarian negotiations are only undertaken by neutral, impartial organisations.

There is also a need for a clear, visible and communicated separation between the activities of humanitarian organisations and those of other actors when operating in close proximity to political missions, peacekeeping forces or parties to armed conflict. In Somalia, with the establishment of a new UN mission in June 2013, it will be critical to ensure a clear separation between humanitarian and political or other roles, given that all functions of the UN will be integrated under a single mission that is specifically tasked with providing support to the Federal Government of Somalia.

Finally, humanitarian actors can take proactive steps within their own organisations and agencies by establishing clear policies that state how and under what conditions humanitarian negotiations can be undertaken, communicating these policies effectively within the organisation and building the capacity of humanitarian practitioners to engage effectively in negotiations. Where possible and beneficial, it is also important to coordinate approaches to humanitarian negotiations, at different levels of operation (local, national, international), with other humanitarian actors working in the same context.

Conclusion

Humanitarian negotiations are distinct from other types of negotiation and from other types of engagement more broadly. As some of the examples presented above and other experiences from recent practice show, stretching the practice of humanitarian negotiation beyond its specific objectives and intended outcomes can dilute its unique character and erode the normative basis of such engagement. If they are to remain a useful instrument in the toolbox of humanitarian practitioners, it is essential that the objectives, processes, arrangements and outcomes of humanitarian negotiations are not compromised. While many factors present challenges to the effective conduct of humanitarian negotiations, the extent to which the integrity of these negotiations can be preserved will be influenced to a significant degree by the determined and principled actions of humanitarian organisations and practitioners themselves.

Gerard Mc Hugh is President of Conflict Dynamics International. He is co-author of the United Nations publication Humanitarian Negotiations with Armed Groups: A Manual for Practitioners (2006). Simar Singh is the Coordinator of the Humanitarian Negotiation Initiative.

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