Engaging with armed groups - Centre for Humanitarian Dialogue

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Mediation Practice Seriesof the UN Secretary-General or Special Envoy of the UnitedStates has different connotations than a diplomat from a smallstate, more junior UN official or a representative of an NGO).More regular engagement with a wide variety of armed groupswould help shift the argument away from the question of “talkingto terrorists” to the more substantive issue of what it willbe possible to talk to them about.• Unforeseen impacts : Mediators embark on engagementwith armed groups with large gaps in their knowledge ofthem and no control over a wide range of variables that mayimpact upon their behaviour. It is therefore not surprising that,on occasion, their engagement has unforeseen and undesirableimpacts (of course, in other instances unforeseen impacts– including encouraging greater flexibility on the part of thearmed group than was expected – may also be desirable).These may involve contribution to a spike in violence as rebelgroups seek to increase military leverage over the politicalprocess. They also could include provocation of internal debatesthat reinforce hardliners, contributing to the splintering ofgroups, and/or facilitating a process that advances little inpolitical terms but provides “cover” for the group to re-arm andre-position itself for a new military offensive.• Security : Mediators interested in engaging with armed groupsinvolved in “hot” phases of armed conflict, or living clandestinely,are initiating an activity with obvious security risks – both forthemselves and their interlocutors. Different organisations willhave different security protocols and conditions, but will needto calculate what constitutes an “acceptable” level of risk fortheir staff, as well as the responsibility they may be assumingfor the travel and security of their interlocutors. Crossing internationalborders presents obvious challenges with regard tovisas and border security, and will generally require assistancefrom the states concerned. Threats to non-state groups includesecurity forces which may not be aware that a confidentialpolitical process is underway or of the movements requiredto facilitate it.26
Engaging with armed groups• Legal issues : Mediators face legal risks in two broad areas.The first relates to the post 9/11 counter-terrorist legislationupheld by the US Supreme Court in June 2010. A broad definitionof “material support” (to include expert advice, assistance,services and personnel) opens up the possibility of prosecutionfor a wide range of activities consistent with engagement withan organisation designated as terrorist by the US Government,or with one that the individual concerned knows has engaged,or still engages, in terrorist activity. The material support statuteis broad in its jurisdiction, applying to US citizens and residents,but also to non-US individuals “brought into or found in theUnited States” after an offense occurs. 15 A related issue is that,through engaging with armed groups, mediators are oftendealing with actors who have beeninvolved in major crimes. It is logicalthat prosecutors (including the ICC)may one day try to subpœnamediators. Mediators may be askedto testify, or to provide various kindsof information in relation to thearmed group (such as cell phonenumbers, structure and hierarchy).Alternatively, defense counsel mightask for information if a member ofthe armed group is charged andthe mediator is deemed likely tohave information relevant to thecase. In neither circumstance havemediators so far faced legal consequences, but with nothing inthe law to provide protection, the vulnerability is real. 16 Lookingahead, there may be grounds for arguing that mediators, likelawyers, might rely on the privileged nature of their conversationswith armed groups as a bar to a subpoena or demandfor disclosure.Mediators interested inengaging with armedgroups involved in “hot”phases of armed conflict,or living clandestinely, areinitiating an activity withobvious security risks,both for themselves andtheir interlocutors.• Partiality : Mediators who work to develop the trust of armedgroups risk being perceived as, or actually becoming, partial totheir cause. This is in part a structural issue, in that mediators27
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