Engaging with non-state armed groups in the context of the 'Global War on Terror': observations from Lebanon and Gaza

The conflicts in Gaza and Lebanon in 2006 led to heated debates within and outside the humanitarian community. The major cause of debate was the grave abuse of civilians committed by all parties to the conflict. But an additional question was the fact that Hamas and Hizbollah were labelled terrorist organisations, and hence illegitimate and illegal in the terms of the ‘Global War on Terror’ (GWOT). At the same time, however, both groups represented the legal authority. Engagement with non-state armed groups by non-governmental humanitarian agencies (NGHAs) is always problematic. Under the GWOT, however, it has become even more complex.

By virtue of its mandate, the humanitarian mission is not contingent on whether certain (non-state) groups are deemed legitimate or not, or whether they are considered legal or illegal. At the same time, however, simply dismissing the GWOT and its concomitant policies as irrelevant is not enough. NGHAs willbe confronted with GWOT policies in the context of their operations. Governments, the public and beneficiaries themselves may all question agencies’ interactions with certain armed groups, in particular if the latter are considered illegitimate or illegal. Hence, a review of engagement with armed groups that are declared terrorist seems to be useful in terms of the potential impact and consequences for humanitarian action as such, and for NGHAs.

The GWOT: policy and instruments

US President George W. Bush proclaimed the start of the Global War on Terror with his often-cited statement ‘you’re either with us or against us’ in November 2001. The so-called Patriot Act, approved by the US Congress in October 2001, gave the president vast powers to act against terrorism at home and abroad, through a wide array of measures, including asset confiscation, wire-tapping and surveillance, as well as physical arrest. The Patriot Act was renewed for another term in March 2006. The National Security Act (known as the Homeland Security Act) followed in 2002. The US also kept a roster of terrorist organisations, to which was added a list of countries that it believed were sponsoring international terrorism, including the so-called ‘Axis of Evil’ of Iran, Iraq, Libya, North Korea and Syria.

Other states and groups of states followed the US lead. In 2001, the British government passed the Anti-Terrorism, Crime and Security Act, and extended the Terrorism Act, passed in 2000, in 2006. The UK also has a list of designated terrorist groups, which includes al-Qaeda, Hamas and Hizbollah. Australia, Belgium, Canada, the Netherlands and the European Union (EU) have all implemented similar measures to strengthen their legal responses to terrorism, and provide the executive with instruments to act against perceived terrorist threats.

What are the implications of these policies and legal instruments in terms of the implied duties and obligations of humanitarian organisations? The welter of legislation generated under the GWOT rubric does not necessarily affect NGHAs, nor does it necessarily constrict humanitarian access. According to the UN World Conference on Anti-Terrorism, held in 2005: ‘States must ensure that any measures taken to combat terrorism comply with their obligations under international law, in particular human rights law, refugee law and international humanitarian law’. Nonetheless, the legislation is clear in that any entity or individual suspected of aiding declared terrorist entities canbe considered a terrorist. GWOT policies thus leave many questions unanswered. What do they imply for humanitarian access in areas where declared terrorist groups operate? Can engagement with such groups have (legal) implications for NGHAs or, worse, for their staff? The pertinence of these questions has been demonstrated by the legal action that has been taken against individuals suspected of supporting organisations listed as terrorist groups in the US and the UK. Legal action has also been taken against foundations believed to be transferring funds to terrorist-listed entities. We are therefore right to be concerned about the potential risks NGOs and humanitarian staff face in engaging with declared terrorist organisations for the sake of humanitarian access.

The crises in Lebanon, Gaza and beyond

The abduction of an Israeli soldier in Gaza in June 2006 by Hamas, and Hizbollah’s kidnapping of another two Israeli troops in Lebanon in July, prompted Israel to launch massive attacks in Lebanon and Gaza. The ensuing conflict was complicated by the fact that Hamas and other Palestinian armed groups, such as Islamic Jihad, as well as Hizbollah, deliberately targeted civilians in rocket attacks and artillery shelling. Their tactics also included using civilians as human shields for military action. Israel responded with ruthless attacks on civilian areas through aerial bombardment and the shelling of Palestinian and Lebanese towns and villages. The actions of all sides constitute grave breaches of the Geneva Conventions.

Hizbollah is a registered political movement in Lebanon, and thus has a legitimate status. It was formed in the course of Lebanon’s civil war, and rose to prominence with its violent actions during the resistance to Israel’s occupation of Southern Lebanon. At the same time, its social and medical community services give Hizbollah – Arabic for Party of Allah – a sound civilian basis. Hizbollah’s resistance against Israel and its social and medical work won it massive popular (Shia) support. Its military attacks on Israel as well as its rise in power in Lebanon fed regional and Lebanese observers’ concerns about its impact on the country’s delicate balance of power, distributed between Christians, Druse and Shia in a complicated political formula. Hizbollah’s relations with Syria and Iran are also a cause of contention, and have been inflamed with the killing of former Prime Minister Rafiq Hariri, allegedly by pro-Syrian forces, in February 2005. Despite this, during the elections of 2005 Hizbollah won seats in parliament, and claimed three portfolios in the Lebanese government.

Hamas’ rise to power is just as controversial. Created in 1987 by Sheikh Yassin, Hamas was virulently anti-Israel, both in its political and military actions. Its principled rejection of the state of Israel and its open support for suicide bombing make Hamas a difficult player in the Palestinian–Israeli conflict. At the same time, its wide network of social and medical services is highly appreciated by the Palestinian population, especially in Gaza. In January 2006, Hamas won the parliamentary elections, prompting Israel to launch an international campaign to isolate it by refusing access to international aid funds. As aid dried up, living conditions in Gaza deteriorated drastically.

The international campaign against Hamas also made it difficult for NGHAs – using institutional funds – to finance their activities. Although the EU installed an alternative mechanism by which aid to Gaza bypassed the Hamas government, and the US stated that the aid ban did not apply to UN-led programmes, this raised serious questions about the neutrality and impartiality of aid. Some agencies, such as Médecins Sans Frontières (MSF), objected to the stipulations on the grounds that they introduce an unacceptable principle of conditionality into humanitarian assistance, and thus politicise humanitarian aid. According to MSF, NGOs ‘do not have the competence, the means or the responsibility to act as a substitute for the Palestinian Authority’. This objection is understandable, but misses the wider point, namely that humanitarian aid often, if not by definition, compensates for the negligence or neglect of governments. If this applies in general, then under the GWOT the dilemma is even more complex.

Israeli military action effectively sealed off the Gaza Strip, halting humanitarian access. Likewise, in Lebanon, the Israelis called on all civilians in the south to evacuate or be regarded as enemy combatants and fired upon. This implied that anyone else in the area – including aid workers moving in convoys – would be regarded in the same way. It was claimed that Hizbollah abused humanitarian convoys to move vehicle-mounted rocket launchers around. Consequently, the Israeli army stated that it could not guarantee safe passage for humanitarian aid. Southern Lebanon was virtually cut off from assistance, albeit access, though difficult, was never totally impossible. The military tactics Hamas and Hizbollah used had the effect of embedding civilians in the conflict, thereby provoking attacks on them by the Israeli army. There was little NGHAs or the wider humanitarian community could do other than remind the warring parties to respect the protected status of civilians, refrain from using civilians as human shields and stop targeting civilians.

The experiences in Gaza and Lebanon were not the first time NGHAs encountered problems operating on the frontline of the GWOT. Then US Secretary of State Colin Powell’s reference in October 2001 to international aid organisations as ‘force multipliers’ made clear how the US regarded their role and function in the GWOT. In Afghanistan, Provincial Reconstruction Teams (PRTs) were perceived as blurring the lines between humanitarian and military action. As Operation Enduring Freedom unfolded, numerous aid workers and hundreds of civilian sub-contractors were targeted by militants. In Iraq, there were numerous abductions and assassinations of aid workers, culminating in the bomb attacks on the ICRC and UN missions in Baghdad in 2003. There are, however, important differences between the Iraq/Afghanistan context and Gaza/Lebanon.

The first difference is the manner in which these groups interact with official governments. In Lebanon and Gaza, Hizbollah and Hamas were de facto and de jurein power. Whether considered terrorist or not, both represented a legitimate government, however disliked by Israel and the West. In contrast, in Afghanistan post-Taliban, groups operate clandestinely, and neither represent nor participate in the official government. In Iraq, likewise, with some exceptions, the various armed groups are not included or represented in the government. If anything, in the latter cases the armed groups oppose the official administration. Hamas and Hizbollah can therefore be deemed essential and necessary counterparts for humanitarian assistance agencies because they represent the local authority, irrespective of their declared terrorist status.

Second, tactics and strategy are different. While obviously deploying violent methods, some of which indeed can be said to be aimed at spreading terror, neither Hamas nor Hizbollah has a clear-cut strategy of disruption per se. In fact, both organisations have vast social and medical support branches, to which they owe much of their popularity among civilians. By contrast, al-Qaeda in Iraq and other Sunni- and Shia-based armed groups have as their primary aim denying the enemy effective control over territory and people; they are, in other words, what is commonly called ‘spoiler forces’.

Third, the way in which civilians are associated with the armed groups is different. Hamas and Hizbollah enjoy massive popular support. In Afghanistan and Iraq, civilian backing for armed groups may perhaps be claimed, but it is most likely artificial, and primarily utilised as a survival strategy by civilians caught up in violence. Hamas and Hizbollah, on the other hand, are seen as protectors of their respective constituencies. This immediately affects the neutrality of humanitarian entities in these contexts, since aid to civilians can be interpreted as support for the organisations that these civilians associate with. This is largely the view of the Israeli government, but other governments also appear to share it, given the international efforts to isolate Hamas.

Legal, political and operational implications

The debate on the GWOT is dominated by the meaning and applicability of the terms ‘terror’ and ‘terrorism’. In a descriptive sense, terror or terrorism must be understood as a tactic of warfare, designed to lower morale among civilians or soldiers. It can be used both by irregular armed groups and by regular armies. In this sense, in the context of Lebanon and Gaza, Israel could arguably be accused of applying terror tactics just as much as Hamas and Hizbollah. In the political sense – and this is how the term is used in the GWOT – ‘terrorism’ is a label enabling action to be taken against ‘terrorist’ groups. For the humanitarian mission, this has significant implications in a practical operational sense, and in terms of legal consequences.

The legal risks flowing from GWOT policies are certainly present even though, to date, there have been only a handful of cases against NGHAs or humanitarian staff. This may, however, change, and NGHAs must therefore take into account that there is a potential legal risk involved in engaging with groups labelled as terrorist. This is important in terms of an NGHA’s credibility – there have been cases where relations with institutional and private donors have been severed – and in terms of its duty of care to its staff. Legal action against an individual may in turn lead to claims against the agency. On the practical operational level, suffice it to say that non-state armed groups, be they terrorist or not, willbe encountered: they are there, and one has to deal with them. Interactions with such groups may damage an organisation’s credibility as (good) relations with one side – for instance an armed group that qualifies as terrorist – will have a direct negative impact on the other side, and will lead to an effective loss of perceived neutrality. How these relations are managed requires an understanding of the political context, and appropriate instructions to staff as to how to conduct those relations.

Conclusions

The decision to operate in places like Gaza and Lebanon depends first and foremost on an assessment of humanitarian need. If the need is there, then engaging with groups like Hamas and Hizbollah is necessary, inevitable and essential to humanitarian access, whether or not they are considered terrorist in the context of the GWOT. This leaves unresolved the question of whether governments deem certain interactions as providing material assistance to a terrorist organisation. Judgments as to whether humanitarian engagement with ‘terrorist’ groups is acceptable may also have a moral dimension. Some will disqualify agencies from engagement with certain groups due to the particularly gruesome methods they use or the degree of suffering they cause. Others see reaching populations in danger as the higher, overriding goal. The heated debate around collaboration with the Revolutionary United Front (RUF) in Sierra Leone is one example of the latter.

The fundamentals of humanitarian action as laid down in the Geneva Conventions are guided by generally accepted principles of humanity, impartiality and neutrality. Humanitarian aid must stay clear of conflict itself, and NGHAs have an obligation to ensure that aid is distributed to civilians and does not assist the parties to a conflict. Applying these principles in the real world is, however, much harder. Aid is not supposed to take sides in conflict, but in the context of the GWOT it may have to cross sometimes invisible front lines and engage with entities considered to be terrorist. This new reality under which humanitarians operate merits an open and frank discussion, to protect against the politicisation of aid. This can be achieved by individual and collective action, and by discussing the problematic aspects of the GWOT with governments and donor agencies. To date, in my opinion, if such a discussion has taken place, it has been conducted far too quietly.

Max Glaser is an independent consultant based in Amsterdam. He specialises in conflict sensitivity and negotiated access. See http://www.pax-consultancy.com.