According to the War Report 2018, out of the 69 reported armed conflicts, 51 involved non-state armed groups (NSAGs). Against this background, the international community has long acknowledged the importance of engaging NSAGs for humanitarian purposes, despite the fact that it is, in some contexts, actively discouraged or even prohibited by certain states’ domestic legislations. While conducting dialogue with NSAGs comes with a specific set of challenges, especially for states, it can also provide an essential opportunity to protect civilians in armed conflicts and post-conflict situations. It is thus essential that states and intergovernmental organizations active in peace mediation and conflict resolution like Germany or the EU increase their engagement with NSAGs.

Engaging Non-State Armed Groups Does Not Give Them Legal Recognition

Many NSAGs seek to be recognized by the international community, as well as by their own internal audience, as credible and legitimate actors. In addition, they often need the human, material and financial support of the ‘constituency’, on behalf of whom they claim to be fighting. States may thus fear that engaging NSAGs will inevitably increase these groups’ visibility and support, thereby creating tensions with other states or worse, prolonging the conflict. 

[C]onsidering all NSAGs as being terrorists may result in critical groups or individuals being excluded from peace negotiations.

While NSAGs’ quest for legitimacy and the political consequences it might induce are real challenges for states and intergovernmental organizations, international law makes clear that engaging NSAGs does not provide them with any legal recognition. In particular, Article 3 common to the four Geneva Conventions of 1949 specifies that, when an impartial humanitarian organization offers its services to NSAGs or when they enter special agreements to bring into force all of the treaty provisions, this ‘shall not affect the legal status of the Parties to the conflict’. In the same vein, the UN Secretary-General, in his latest report on the protection of civilians in armed conflicts, highlighted that engagement with such groups conferred ‘no legitimacy on the groups concerned, but reflects the reality that engagement with non-state armed groups is a sine qua non for achieving compliance with the law, negotiating humanitarian access and carrying out humanitarian activities.’ 

Labeling All Non-State Armed Groups as ‘Terrorists’ Is Counterproductive

Mostly for military or political reasons, many NSAGs will be labelled as ‘terrorists’, usually by the states against which they are fighting, whether or not they are listed as terrorist organizations at the international level. The problem is that this categorization tends to blur the distinction between acts that comply with international humanitarian law (IHL) and acts of terrorism. Under IHL, only ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’ can be considered as ‘act of terrorism’. In this counter-terrorism rhetoric, any act, such as the targeting of military objectives committed by the NSAG will be denounced as a ‘terrorist act’, even if it is legal under IHL. Putting all NSAGs ‘in the same basket’, even when they respect the rules is counterproductive, as it will lower the incentive for NSAGs to comply with IHL and ultimately impede the protection of civilians. Furthermore, considering all NSAGs as being terrorists may result in critical groups or individuals being excluded from peace negotiations. For instance, it has been emphasized that the association of NSAGs with terrorists has had ‘a direct impact on the EU and the international community’s capacity for mediation and dialogue in transition processes’. 

Non-State Armed Groups May Play Positive Roles in the Protection of Civilians 

There are obviously NSAGs that adopt calculated policies and military strategies which deliberately aim at terrorizing civilians as well as the enemy. In this case, it is important to set clear legal responsibilities for all actors that disrespect international law. That being said, even for extremely violent NSAGs, it has been shown that some form of humanitarian discussion was possible, for example through indirect means such as using the positive influence of the NSAGs’ close constituencies or religious leaders. 

[T]here are also certain NSAGs which genuinely desire to behave ‘in a humanitarian way.’

But there are also certain NSAGs which genuinely desire to behave ‘in a humanitarian way’ and view themselves as being responsible for the fate of the civilian population under their control. It is thus important to consider NSAGs not only as perpetrators of violations of international law, but also as actors who can play positive roles in the implementation of international law. This is particularly true for NSAGs that control territory and administer a population for a long period of time. Of course, NSAGs differ in types, structure and ideology. This, however, should not prevent states from recognizing that these actors might also be driven by consideration of humanity, which permeates many areas of IHL and can be a powerful incentive to respect the norms. 

[E]ngaging NSAGs for a better protection of civilians is essential at all times, during, but also after an armed conflict, notably in transitional justice processes.

In conclusion, engaging NSAGs for a better protection of civilians is essential at all times, during, but also after an armed conflict, notably in transitional justice processes. Humanitarian organizations, such as the ICRC have a rich practice in this regard. From a state perspective though, such an engagement, especially if it takes place during an armed conflict, can be politically sensitive. It might indeed be perceived as partial and supportive of the group against the state it is fighting. It might thus be easier for states and international governmental organizations to engage NSAGs in a peace mediation context. 

With this in mind, a few recommendations can be outlined.

International Actors Should Explore Ways to Include Armed Groups’ Perspectives in International Humanitarian Law

Understandably, during an armed conflict, states might be reluctant to directly train or engage NSAGs on certain IHL rules, as capacity-building could be perceived as military advice or political support. But other less risky means can be explored, such as encouraging the inclusion of NSAGs’ perspective on key IHL norms. An example of such inclusion is the ‘Safe Schools Declaration’ which also addresses NSAGs’ practices. As a way of engaging armed groups on IHL, states such as Germany, could adopt a similar approach in the current negotiations of the ‘Draft Political Declaration’ on the use of explosive weapons in highly populated area.

States and Intergovernmental Organizations Should Avoid Labelling Armed Groups as ‘Terrorists’ Without Considering Their Actual Behavior  

Since 9/11 2001, some states have become more reluctant to engage NSAGs and counter-terrorism measures gave an important blow to efforts of humanitarian engagement and peace mediation with these actors. But, in a context where the majority of armed conflicts oppose states and NSAGs, it is counterproductive to stigmatize only one side of the conflict. Germany and international organizations such as the EU aiming to mediate and resolve conflicts should thus be more nuanced in their approach to NSAGs. 

Germany Can Use Peace Negotiations as a Window of Opportunity to Engage Armed Groups

The situation in any given conflict should be monitored for particular ‘windows of opportunity’ for engagement with NSAGs. For instance, dialogue may more easily occur during a lull in fighting or a ceasefire, than when conflict is intense. During peace negotiations and transitional justice processes, the goal is not so much granting legitimacy to an armed group, but rather putting an end to the violence and ensuring respect for IHL and human rights in what are usually long-lasting armed conflicts. Furthermore, practice shows that whether or not NSAGs are or have been categorized as terrorist organizations does not prevent engaging them in peace meditation and post-conflicts negotiations, as demonstrated by the peace processes in Colombia or Afghanistan where both the FARC-EP and Taliban were listed as terrorist groups by the US. States, such as Germany, or intergovernmental organizations should thus increase their use of these windows of opportunity to engage with NSAGs. In this regard, a key contribution of states could be to ensure that humanitarian and human rights norms are included in any peace agreement so as to achieve a just and sustainable peace.