Negotiating humanitarian access with Hamas in Gaza

Humanitarian access negotiations with Hamas in the Gaza Strip highlight the many challenges humanitarians encounter when engaging with non-state actors. After winning the Palestinian Authority (PA) parliamentary elections in 2006, Hamas began transitioning from an Islamic charitable/militant organisation to a party responsible for state institutions and the provision of public services. Yet Hamas remains in many ways a nonstate actor; those running its ministries are guided by its senior leadership in Qatar and Egypt, have little control over its paramilitary branch, the Izz ad-Din al-Qassam Brigades, and are suspicious of Western aid organisations’ potential ‘collaboration’ with Israeli and other intelligence agencies. Hamas now has the institutional means to exert greater control over humanitarian agencies; however, the realities of its new state-like position have tempered its approach.

Hamas relies on popular support and is seeking international legitimacy. However, as a registered terrorist organisation in the United States, the European Union (EU), Canada and Japan, many countries have a ‘no-contact’ policy with the organisation. Since June 2007, Hamas’ rule over Gaza has also been subject to a blockade by Israel and Egypt, exacerbating an already fragile humanitarian situation. Under such conditions, and despite its concerns about aid agencies, Hamas’ interests have created a willingness to cooperate with aid organisations. UN bodies such as the UN Relief and Works Agency (UNRWA) and NGOs provide a range of assistance to the 1.6 million residents of Gaza, 80% of whom are aid recipients, greatly easing the burden on governing institutions. The United Nations Office for the Coordination of Humanitarian Affairs (OCHA), Five Years of Blockade: The Humanitarian Situation in the Gaza Strip, June 2012.  The treatment of aid organisations is also seen as a measure of Hamas’ moderation, and therefore credibility, with the international community.

Negotiating access for day-to-day operations

This tension in Hamas’ motivations has had a significant impact on the humanitarian community’s ability to effectively negotiate access. In August 2011, the de facto Ministry of Interior announced that international NGO staff entering Gaza would need to apply for residency cards or short-term travel permits. The following December, the authorities stated that UN and INGO personnel must coordinate their entry and exit, while national staff would need to obtain permits to exit through the Hamas checkpoint, Arba-Arba, leading to the Erez crossing with Israel. While officially these procedures were intended to manage movement to and from its territory, Hamas informally stated that they were also meant to prevent agencies from facilitating the exit of individuals suspected of collaborating with Israel. It was also clear that Hamas expected that further coordination would help confer international legitimacy on its rule.

While these requests did not necessarily violate international humanitarian law (IHL), they did present several operational challenges. Agencies had previously accepted applying for permits and/or coordination with Israel, and these new procedures would only add a further layer to an already complex bureaucratic process, increasing delays and making it more likely that entry would be denied. The move also raised concerns that this would set a precedent for further access constraints, and that the process would be used to interrogate staff. The UN Department for Safety and Security (UNDSS) also opposed having UN personnel leave their armoured vehicles at Arba-Arba since they could be targeted by Israeli fire. For some INGOs, anti-terror legislation and the no-contact policy imposed by several donors prohibited them from complying.

While anti-terror legislation and donors’ no-contact policies made it difficult for some INGOs to engage with Hamas, UN General Assembly Resolution 46/182 gave UN actors operating under the Emergency Relief Coordinator (ERC), such as the Access Coordination Unit (ACU) within the UN Office for the Coordination of Humanitarian Affairs (OCHA), the mandate to negotiate with all relevant parties. Resolution 46/182 states that the ERC is responsible for ‘Actively facilitating, including through negotiations if needed, the access by the operational organizations to emergency areas … by obtaining the consent of all parties concerned’.  Since 2008, the ACU had built technical-level relationships with Hamas officials, providing an opportunity to discuss the humanitarian principles guiding aid operations, as well as to better understand Hamas’ interests, structure and perspectives. This engagement played an important role in creating acceptance and trust, while allowing the ACU to expand contacts beyond officials in the Ministry of Foreign Affairs to include key actors within the Ministry of Interior, the Protection Unit and the Border Crossing Authority. When Hamas began imposing access constraints, this channel was important in helping to clarify the concerns of the local authorities.

Before the negotiations took place, the ACU attempted to coordinate with affected organisations within the Humanitarian Country Team (HCT) in order to assess the impact these measures would have on agencies’ movement and programmes. Consultations were also held with key donors and diplomatic missions to share information on policies and approaches, and ensure acceptance of the UN’s engagement. Attempts were also made to reach a common HCT policy that could be presented to Hamas, preventing it from playing organisations off against each other. However, efforts at arriving at a common policy were not entirely successful given the varying positions of different organisations.

Following preparations, several rounds of negotiations took place between officials in the ministries of foreign affairs and interior and the ACU/OCHA, with the Humanitarian Coordinator leading key discussions. The process began by outlining the concerns of both parties, allowing for a dialogue on solutions that would address their respective needs and strike a balance between Hamas’ desire for a level of control over agencies’ movements and agencies’ desire for unimpeded access. The ACU/OCHA highlighted the obligations under IHL and the HCT ‘Minimal Framework for the Provision of Humanitarian Assistance in Gaza’ endorsed by the de facto authorities in 2009, which provided for ‘free and unimpeded access’. However, the provisions of IHL do not necessarily prohibit such permit and coordination requests, and Hamas simply ignored its commitments in the HCT framework.

Ultimately, the most effective arguments were those that appealed to Hamas’ interests. The UN focused on the practical implications for the HCT’s ability to provide effective and timely assistance to the civilian population in Gaza due to additional access constraints on humanitarian staff. The population’s aid dependence, and Hamas’ dependence on popular support, meant that the de facto authorities were reluctant to take steps that might compromise their public standing. Although the negotiators made it clear that the scope of negotiations was limited to humanitarian and not political issues, and did not confer political legitimacy on the organisation, Hamas’ desire to be seen as a legitimate state-like actor created a willingness to adopt a position in line with the best practices of states in respecting humanitarian principles.

By using a structured dialogue and appealing to the authorities’ interests (without compromising IHL and while maintaining neutrality and independence), the UN was able to resist a number of Hamas’ demands. The de facto authorities eventually agreed that UN personnel would not need to pre-coordinate their movements or exit vehicles for ID inspection. Hamas also rescinded its request that UN and INGO national staff obtain permits for exiting through Arba-Arba. Unfortunately, a number of INGOs had already begun applying for residency cards and entry permits, leaving Hamas unwilling to reverse its position. By accommodating the requests of UN agencies, Hamas was also able to diminish the level of engagement on this issue by the humanitarian community as a whole. Despite this, the new arrangements helped ensure humanitarian access during periods of relative calm.

Humanitarian access during Operation Pillar of Defence

The reliability of access negotiations with Hamas was tested during Operation Pillar of Defence. In November 2012, the Israeli Defence Force (IDF) launched an eightday aerial operation against Palestinian armed groups in Gaza targeting roughly 1,500 sites – including populated areas – while armed groups launched a similar number of rockets and mortars at Israeli population centres. In the course of the hostilities, 167 Palestinians and six Israelis were killed and some 17,000 civilians were temporarily displaced. B’Tselem, Human Rights Violations During Operation Pillar of Defence, May 2013.  From the outset, the ACU deployed personnel to coordination centres in Gaza, Jerusalem and the IDF Coordination and Liaison Authority at the Erez crossing (Erez CLA) in order to facilitate civil–military coordination efforts with both Israeli and Hamas authorities. UNDSS staff were also deployed to Erez CLA, where the ACU and UNDSS worked in cooperation.

During the operation, the ACU made several attempts to relocate non-essential UN and INGO staff from Gaza to Israel. In each case, their movement was cleared with Erez CLA, which kept the crossing open despite it being targeted by mortar fire. Coordination through the Hamas checkpoint proved more difficult. Hamas officials abandoned their offices for underground locations once hostilities started and were reluctant to use cellular communications for fear of targeted assassinations by Israeli forces. This led to a weakening of Hamas’ chain of command and to conflicting responses in the field. It would often take several hours to establish contact with the Ministry of Foreign Affairs, and several more before it approved access.

Official approval did not prevent obstacles on the ground. The initial convoy was stopped at Arba-Arba by a gunman claiming to work for the Ministry of Interior, forcing it to return 12km to Gaza City through airstrikes and rocket fire until further discussions eventually allowed it to pass. When a second convoy attempted to exit the checkpoint was closed, forcing the UN to seek clear conditions for access with Hamas. Hamas authorities claimed that the checkpoint had been closed for the safety of its staff (who had come under Israeli tank fire), who would not be able to register the movement of humanitarian staff (although ambulances were being allowed through). The authorities later explained that their procedures were also intended to prevent the departure of collaborators, whom they suspected humanitarian actors might be assisting.

Despite difficult communications, the UN explained that the security of staff was of paramount concern to both Hamas and the humanitarian community, which for the latter required consistent access to and from Gaza. The UN highlighted that a lack of access would hamper agencies’ ability to provide adequate assistance and protection to civilians during the hostilities. Media reports at the time about Hamas denying access to humanitarian personnel added to the pressure to find a solution. Hamas eventually agreed to create a temporary registration point several hundred meters from the checkpoint, and to open the checkpoint daily between 12:00 and 14:00, which allowed regular access to and from Gaza.

Following a ceasefire on 22 November, UN actors worked to establish more consistent and clearer channels of communication and coordination during emergency situations. These discussions led to the establishment of a round-the-clock hotline manned by staff from the de facto Ministry of Interior to address operational and security issues, though it remains to be seen how this mechanism will function in the event of another emergency.

Lessons

The experience of negotiating access with Hamas provides several lessons that should be taken into account when revising the Inter-Agency Standing Committee (IASC) guidance on engagement with non-state actors. First, engagement should begin at an early stage. Developing trusted channels of communication early on allows access constraints to be addressed rapidly, which is critical to effectively maintaining and improving access. While it is important during negotiations to emphasise each party’s obligations under IHL, and to ensure that humanitarian policies and positions are informed by IHL, displaying an understanding of the non-state actor’s concerns and appealing to their interests are often more effective tools.

While existing IASC guidance and the ERC have stated that humanitarian negotiations do not confer legitimacy on armed non-state actors, it is hard to avoid this impression by armed groups and members of the international community, particularly in contexts with an integrated UN mission where those leading humanitarian negotiations might be linked to peacekeeping forces that might be seen by some as a party to the conflict. Such assumptions need to be taken into account when deciding on the structure and composition of negotiations with non-state actors. Finally, effective negotiations require a high level of cohesion within the humanitarian community, which is often difficult to achieve in practice. Operational requirements and differing positions amongst a diverse range of humanitarian actors often lead to independent approaches to access constraints, which might result in the expansion of agency space for some, but could have an adverse impact on humanitarian space as a whole.

Antonio Galli was the Access Analyst at the UN Access Coordination Unit in Jerusalem between 2012 and 2013.