Naming Terror: Impact of Proscription on Negotiations with Non-State Armed Groups (By- Dr.S.Krishnan & Ms. Bhavna Jain)
Naming
Terror: Impact of Proscription on Negotiations with Non-State Armed Groups
Authored
By- Dr.S.Krishnan
Associate Professor
Seedling School of Law and Governance
Jaipur National
University, Jaipur
Ms. Bhavna Jain
2nd year Student of LLB (3)
Seedling School of Law and Governance
Jaipur National University, Jaipur
Abstract
This
article explores what impact terrorist blacklists have on negotiated solutions
to armed conflicts involving listed non-state armed groups. Even though
conflicts that involve non-state armed groups do not usually end through these
groups’ military defeat, governments around the globe tend to adopt
hard-security approaches with regard to inner-state conflicts. Especially when
groups resort to terrorist tactics, governments tend to be reluctant to engage
peacefully with these actors and instead commonly rely on terrorist blacklists
in order to delegitimize and restrict groups’ activities. While these
blacklists are effective in criminalizing the operations of these groups, they
can also severely impede peaceful dialogue and thus negatively impact the
resolution of conflicts. Especially the work of NGOs and third-party peace
practitioners is greatly constrained by criminalizing any form of interaction
with listed groups. Additionally, in the absence of a universal definition of
what constitutes a terrorist group, lists vary from country to country and the
criteria for groups and individuals to get listed are often extremely vague.
Furthermore, most lists fail to re-evaluate the proscribed groups on a regular
basis and delisting procedures lack transparency. This article finds that
blacklists severely disincentivize peaceful engagement with non-state armed
groups and thus calls for a revision of contemporary proscription regimes in
order to shift the focus of counterterrorism approaches towards viewing
peaceful dialogue as a first option and not a last resort.
1. Introduction
Most contemporary conflicts are
characterized by their asymmetrical nature, where governments are challenged by
the presence of one or more non-state armed groups1 contesting
the legitimacy of the state. Due to unequal relationships of power, these
non-state armed groups often rely on terrorist tactics, commonly understood as
a particular type of violence characterized by methods such as hijacking,
bombing, assassination, kidnapping, hostage-taking, and suicide attacks.
Government responses to terrorist violence usually consist of hard-security
approaches that intend to eliminate the responsible groups altogether (Boon-Kuo
et al. 2015, 24; Gross 2011). Although scholars and practitioners alike have
repeatedly demonstrated the comparative effectiveness of peaceful engagement
over hard-security approaches in conflicts between states and non-state armed
actors, these strategies still represent the dominant response by most
governments when it comes to conflicts involving groups that are classified as
terrorists (Haspeslagh and Dudouet 2015, 106).
As several studies have shown, military
force is not very effective when it comes to the resolution of conflicts that
involve groups that rely on terrorist tactics (Sriram 2008; Jones and Libicki
2008; Tellidis and Toros 2015). Forty-three percent of conflicts involving
listed groups since 1968 ended in political solutions, meaning the inclusion of
these groups in the state’s political process (Jones and Libicki 2008, 35).
One way to reach a political solution
is through negotiated peace settlements, understood as an agreement between the
government and the non-state armed group that can lead to the members of the
group engaging in a transition towards becoming a political party (Jones and
Libicki 2008, 21). Although many governments have repeatedly stated that
they would never talk to terrorists, peace-practitioners and scholars have
increasingly emphasized that engagement with these groups is oftentimes crucial
in order to resolve the conflict and to be able to find inclusive, sustainable,
and peaceful solutions that prevent the conflict from being protracted any
further (Dudouet, Planta, and Giessmann 2016, 4).
In the aftermath
of 9/11 and the linked process of securitization in relation to the fight
against terrorism, it has become increasingly difficult for governments, NGOs,
and third-party mediators to engage with non-state armed groups, as the
inclusion of groups on terrorism blacklists has become more widespread. The
proscription of groups is thereby primarily a political decision and groups do
not necessarily have to present a direct security threat to the state in which
they get banned. The main aim of blacklists is to delegitimize the groups and
cut off external support by criminalizing interactions with these actors. As a
whole, these blacklists often “provide the government with a multifaceted
arsenal of administrative, legal, and political means of combating terrorism”
(Gross 2011, 46).
Acknowledging that
the majority of past conflicts involving listed groups have not been solved by
purely military responses, but relied on some form of non-violent engagement,
this paper presents an overview of the challenges and opportunities of
engagement with non-state armed groups and their inclusion in peace negotiations,
with a specific focus on how the international fight against terrorism has
impacted these efforts.
It is not the aim
to present a general comparison regarding the effectiveness of negotiated
settlements versus armed confrontation in conflict resolution. Rather, the aim
is to analyze what impact the listing of non-state armed groups as terrorist
organizations has on the prospects of engagement with, and the inclusion of
these groups in peace negotiations.
The next section
focuses on some of the key challenges and opportunities regarding peace
negotiations between conflict parties. Section three presents an overview of
the emergence of terrorist sanction lists as a widespread counterterrorism tool
and assesses the implications of these lists on the possibilities of negotiated
peace settlements between governments and proscribed non-state armed groups.
Section four highlights the main findings and puts forward policy
recommendations to address the shortcomings of current terrorist blacklist
regimes.
2. Peace Negotiations: Challenges And Opportunities
Peace negotiations
are only one aspect of broader, often lengthy, peace processes. They are
understood as the procedure in which two or more opposing parties enter
dialogue and discuss their differences with the aim of finding peaceful
solutions. Often, negotiation processes are facilitated by third-party actors,
as direct engagement between state governments and non-state armed groups
entails several risks and difficulties (Fisas 2015, 39–40; Zartman and Faure 2011,
12).
One of the biggest
challenges that governments face regarding engagement with non-state armed
groups relates to issues of legitimacy. Negotiation with these groups entails
their recognition, which is often perceived as conferring a certain degree of
legitimacy. Especially with regard to armed groups that rely on terrorist
tactics and perpetrate violence against civilians, recognition of these actors
as partners at the negotiating table is perceived as unethical both by the
affected population and the international community (Gross 2010).
In addition,
governments also face the risk of encouraging other groups to take up arms in
order to “shoot their way through civilian casualties into policy decisions”
(Zartman and Faure 2011, 9). Governments that engage with groups that use
terrorism as a means to achieve their goals might therefore unintentionally
encourage other groups to participate in similar illegal, violent activities,
as the state’s recognition of non-state armed groups as negotiating partners
can be interpreted as legitimizing their violent means as a strategy to make
themselves heard (Carl 2011, 170–71; Toros 2008, 411; Zartman and Faure
2011, 5–9).
Although
engagement with terrorist groups presents many challenges for governments, some
form of contact is often maintained, even if these contacts are usually denied
by most governments (Duyvesteyn and Schuurman 2011, 678; Cronin 2009, 35).
Despite the risks related to issues of legitimacy, engagement with terrorists
also presents an opportunity for governments to credibly prove their commitment
to stop the violence and demonstrate responsibility toward their citizens
(Duhart 2018, 4; Duyvesteyn and Schuurman 2011, 678).
Even though the
outcome of negotiations with terrorists is highly unpredictable and most
negotiations do not result in an immediate resolution of the conflict, they
also rarely end in outright failure. A study by Cronin (2009) suggests that
less than ten percent of negotiations aimed at ending terrorist campaigns have
failed completely. About a third of all negotiations end in the actual
resolution of the conflict. The most common result, however, is an ambiguous
middle-ground where violence continues at a lower level of intensity and
frequency (Cronin 2009, 41). The literature on the engagement with non-state
armed groups mostly explores the challenges that states face when they engage
with groups that are featured on a terrorist list, thereby assuming that
non-state actors are always willing to take part in peace-talks, as long as the
state government agrees (Zartman and Faure 2011, 5–6).
Proscribed
non-state armed groups, however, face a similar legitimacy issue when engaging
in peace negotiations with the government, the main actor whose legitimacy
these actors commonly challenge. Through the asymmetrical nature of most
intra-state conflicts, non-state armed groups are often tempted to compensate
for their relatively weaker position by increasing their commitment to fight
(Wennmann 2009, 1125). In order to understand the willingness of armed groups
to engage in negotiations, their economic agendas cannot be neglected. These
groups often finance their existence through illegal activities such as
smuggling, drug trafficking, or extortion. The prolongation of the conflict can
therefore sometimes be more profitable for these actors than its settlement.
Especially when peace negotiations require a prior cease-fire, non-state armed
groups are faced with the problem of having to interrupt the hostilities and
risk losing their financial revenues, without any prospect of compensation
(Wennmann 2009, 1128).
The willingness to
engage in peace talks with the government or other third-party actors thus
depends on the nature of the group, its goals, and the extent to which violence
is part of the identity of the group (Cronin 2009, 40–42). As they are
presented as illegitimate actors, some groups have a strong interest in
engaging with the government as it presents an opportunity to show their
willingness to transform into a non-violent organization and gain popular
legitimacy. Engaging in negotiations with the government can therefore be a
tactical strategy to improve their legitimacy as a political actor that needs
to be taken seriously by the state and demonstrate to society that they are
willing to achieve their goals through non-violent means (Duhart 2018, 4–6;
Duyvesteyn and Schuurman 2011, 678–79).
From the
perspective of armed groups, the willingness to abandon terrorist violence as a
strategy generally has more to do with their political will than their
capacity. Due to the limited amount of resources that are needed to conduct a
terrorist attack, they are always able to resort to these tactics. Instead of
addressing the capacity of groups to perpetrate violence through counterterrorist
strategies, governments and third-party mediators might therefore be more
successful in changing the behavior of designated groups and incentivizing
deradicalization through a negotiated approach (Haspeslagh and Dudouet 2015,
105-106).
Although engagement
does not necessarily lead to the resolution of the conflict, dialogue can lead
to agreements that address human rights concerns and improve the humanitarian
crisis that often results from the violence (Whitfield 2013, 16). Furthermore,
the conflict parties have still gained information about each other’s
objectives and grievances, which generates a better understanding of the
capacities and motives of the other party. By engaging in dialogue, all parties
have the opportunity to influence the perceptions and decisions of their
opponents and build trust, arguably one of, if not the, most crucial aspects of
negotiations (Whitfield 2013, 16–17).
3. The Fight Against Terrorism And Its Impacts On
Engagement
3.1 The Rise Of Terrorist
Blacklists In Response To 9/11
Although not a new
phenomenon, the labeling of non-state armed groups as terrorist organizations
has become a widespread policy tool after September 11, 2001 and the related
“War on Terror.” This has made inclusive approaches to deal with these groups
increasingly difficult (Haspeslagh 2013, 3). Whereas academia generally employs
a more broad conceptualization of non-state armed groups and defines them as
“challengers to the state’s monopoly of legitimate coercive force” (Florquin
and Decrey Warner 2008, 17) or “distinctive organizations that are (i) willing
and capable to use violence for pursuing their objectives and (ii) not
integrated into formalized state institutions such as regular armies,
presidential guards, police, or special forces” (Hofmann and Schneckener 2011,
604), the states that are challenged by these non-state armed groups, as well
as other governments and intergovernmental organizations, often refer to them
using the “terrorist” label.
According to the
Global Terrorism Index (GTI), terrorism is defined as “the threatened or actual
use of illegal force and violence by a non?state actor to attain a political, economic,
religious, or social goal through fear, coercion, or intimidation” (Institute
for Economics and Peace 2017, 6). In order for an incident to be listed as an
act of terrorism in the related Global Terrorism Database (GTD), the act has to
be intentional, must entail some level of violence or threat of violence, and
has to be perpetrated by a subnational actor (Institute for Economics and Peace
2017, 6). However, terrorism remains a very ambiguous and contested concept,
and an internationally accepted definition of what constitutes terrorism
remains absent; the U.S. Government alone employs more than 22 different legal
definitions of terrorism (Institute for Economics and Peace 2017, 6; Beck and
Miner 2013, 837).
The classification of non-state armed
groups as terrorists was therefore not a new phenomenon, however, the
proscription became more systematic and pervasive after 2001.
Before the events
of 9/11, governments also labeled rebel or opposition movements as terrorist
groups and introduced national counterterrorism policies. The classification of
non-state armed groups as terrorists was therefore not a new phenomenon,
however, the proscription became more systematic and pervasive after 2001
(Helgesen 2007, 11). After the attacks of 9/11 and in relation to the broader
“Global War on Terrorism,” various anti-terrorist legislations were passed by
the United Nations and its member states, including the U.S. Patriot Act, the
UK Anti- Terrorism, Crime and Security Bill and the EU Council Common Position
931 on Combating Terrorism. National counterterrorist legislations were
incorporated in the discourse of the global anti-terrorism campaign and states
that were facing insurgencies relied more and more on the international
community for support. Groups that were previously only listed in the country
that they operated in all of a sudden became a threat to foreign countries and
international security more generally (Helgesen 2007, 11–14). By declaring an
internal conflict as an incident of terrorism, governments easily gained
approval for harsh responses by the international community.
A state that defends itself against
terrorist attacks rarely ever faces any pressure to legitimize its choice of
policies in response to the declared terrorism threat.
The dominant
paradigm of the “War on Terror” placed terrorism on top of the security agenda
all around the world, such that, a state that defends itself against terrorist
attacks rarely ever faces any pressure to legitimize its choice of policies in
response to the declared terrorism threat (Helgesen 2007, 11). The politics of
securitization resulted in very simplistic, one-sided views of inner-state
conflicts and legitimized the states’ use of force “against any forms of
political (especially violent) unrest and resistance” (Dudouet, Giessmann, and
Planta 2012, 9). Counterterrorist strategies led to intra-state conflicts being
primarily framed as conflicts where illegitimate non-state actors challenge the
legitimate use of force by the state. Through this state-centered perspective,
state authorities always seem to be protected and legitimized, even in cases
where regimes are corrupt and oppressive (Dudouet et al. 2012, 9–10).
3.2 Characteristics And
Objectives Of Terrorist Blacklists
The intention of
terrorist lists is to “disrupt the activities of terrorist groups by
criminalizing their members, cutting off their access to funds and undermining
their support” (Hayes and Sullivan, 2011, p. 6). The aim is to delegitimize the
group and to create the legal framework on how to respond. They provide the
respective government or organization with the relevant administrative, legal,
and political means to combat terrorism and bring legal clarity to how
terrorist groups are identified and prosecuted and also provide reference for
those who wish to engage with the listed groups about the legality of an
interaction (Gross, 2011, p. 46). By blocking financial and material support
and raising the costs of using terrorist methods by defining the consequences
for specific actions, governments anticipate that these lists will incentivize
individuals to abstain from using terrorist tactics. Further, the goal is to
target not only the group itself but also its support base by sanctioning
financial and material support (Boon-Kuo et al. 2015, 32; Haspeslagh 2013, 4).
In the United
States, the Foreign Terrorist Organization (FTO) list evolved from the annual
report “Patterns of Global Terrorism” from 1985. In 1989, the list of terrorist
organizations was formalized, and respective sanctions were introduced. The FTO
list defines terrorism as politically motivated violence that is perpetrated
against civilians by non-state actors. The FTO list gets updated every two
years; groups are added or removed if they no longer meet the criteria (Beck
and Miner 2013, 840).
The U.S.
legislation is very restrictive and criminalizes interactions with non-state armed
groups in most forms. In a Supreme Court ruling in 2010, it was established
that the provision of any expert advice, service, or training in peaceful
conflict resolution is illegal for U.S. nationals, also if they operate abroad
(Haspeslagh 2016, 4).
In the
European Union, counterterrorist sanctions are based on the EU’s Common
Position (CP) 2001/930/ CFSP, CP 2001/931/CFSP (CP 931), and Council Regulation
2580/2001 (Eriksson 2009, 18). A terrorist act according to the EU definition
is an offense under national law that either seriously intimidates a population
or seriously destabilizes or destroys the fundamental political,
constitutional, economic, or social structures of a country or an international
organization (Council of the European Union 2001).
In order to be
listed, an EU member state needs to nominate the person or group which is then
reviewed by the EU Council. The decision needs to be unanimous for a group to
get designated as terrorists. The list gets reviewed every six months and
groups can submit a request to the Council at all times to appeal for their
removal from the list; however, this process too requires unanimity of the
Council (Conciliation Resources and Berghof Peace Support, 4).
The United
Kingdom’s Terrorism Act of 2000 lists any actor that “commits or participates
in acts of terrorism, prepares for terrorism or encourages terrorism or is
otherwise concerned in terrorism” (Home Office 2013). Although all three
terrorist blacklists follow a similar logic and entail similar sanctions, they
differ quite considerably. In 2013 there was only a 24 percent overlap out of
126 proscribed groups for the three terrorist lists (Beck and Miner 2013, 840).
Furthermore,
certain groups are significantly more likely to be listed than others: Islamist
groups are 2.5 times more likely to be included than other groups and
constitute more than 41 percent of the listed organizations, although they
account for only 11 percent of attacks. Especially in the United States, the
designation of Islamic organizations as terrorist groups has become
increasingly widespread. Whereas before 2001 only about 30 percent of the
listed groups were Islamic, after 2001 over 70 percent of the groups that were
added are Islamic (Beck and Miner 2013, 850–54). This misrepresentation not
only risks marginalizing Muslim communities through an increasing “othering” in
public discourse and the creation of a narrative that links Muslims to
terrorist violence, but also risks missing other types of groups that are
likely to perpetrate violent attacks using terrorist methods (Beck and Miner
2013, 850).
The different
national terrorist lists show some similarities in terms of definitions and
policy responses, however, there is quite a lot of divergence with regard to
which groups are actually listed as terrorist organizations. Whereas Hezbollah
is listed as a terrorist group in the United States, the United Kingdom only
lists its military wing on their “List of Proscribed Terrorist Organisations.”
The European Union instead has even stated in 2012 that it does not intend to
list the group altogether (Dudouet 2011, 4; Haspeslagh 2013, 6). A lack of
differentiation and the absence of an international definition of what
constitutes a terrorist group leads to the same armed group sometimes being
called rebels, militant group, separatists, or terrorists. Simplified rhetoric
and a lack of nuance leads to many armed groups being put in the terrorist box
and ignores the “degree of social legitimacy, political aspirations, provision
of services, and reliability in honouring commitments” (Podder 2013, 32) that
characterize some of these groups.
Whereas it makes
sense to describe a distinct type of actions as terrorist violence, and the
proscription of non-state armed groups often brings legal clarity to
governments regarding how to deal with these groups, the description of armed
actors as terrorists also entails many flaws. It becomes effectively impossible
for individuals that get listed to lead a regular life, as they can no longer
work due to the fact that they will not be able to access their bank accounts,
they cannot receive support from friends or family due to the illegality of any
form of support, and they are unable to buy any insurance. Their participation
in society is thus severely restricted as a result of blacklisting, even though
these individuals do not usually get formally accused of any criminal charges.
The UK Supreme Court has in this regard stated that designated persons are in
effect living a life as prisoners of the state, as they often do not have the
possibility to get delisted unless the state revokes their status (de Goede
2011, 502; Sullivan and Hayes 2010, 92). Whereas this might be viewed as a
desirable effect regarding organizations that pose a high-security risk to the
state, it also brings the danger of violating human rights of individuals that
have been blacklisted without actually belonging to any terrorist group and
without having any violent intentions.
3.3 The Implications Of
Terrorist Blacklists On Engagement With Designated Groups
The implications
of naming and listing groups as terrorists are tremendous. Once the terrorist
label is assigned, it is no longer relevant whether or not the nature of the
group actually corresponds to the label, but rather, “a series of normative
associations, motives and characteristics are attached to the named subject”
(Bhatia 2005, 9). The authority to name and identify an object is tightly
linked to power relations. The intention of labeling is to shape the discourse
and establish a dominant narrative that ensures that a certain interpretation
of the object prevails. “By naming, this subject becomes known in a manner
which may permit certain forms of inquiry and engagement, while forbidding or
excluding others. No doubt such simplifications allow people to both engage
with and understand a complex world. However, the need for simplicity can be
rapidly appropriated and taken advantage of by those with their own political
agenda” (Bhatia 2005, 9).
Once the terrorist label is assigned,
it is no longer relevant whether or not the nature of the group actually
corresponds to the label.
The effect of
blacklisting groups has a direct impact on how states and other parties engage
with non-state armed groups. Terrorist blacklists encourage zero-tolerance
counterterrorism approaches by setting disincentives to negotiated solutions
and non-violent engagement. Instead, these lists justify responses that are
based on countering violence with more violence, rather than peaceful
engagement through dialogue (Dudouet 2011, 6; Florquin and Decrey Warner 2008,
18; Toros 2008, 411; Zartman and Faure 2011, 114). By determining the narrative
and perception of a specific non-state armed group, terrorist lists can
severely impact the ways in which the respective groups operate. Mediators have
repeatedly stated that the listing of groups has a counterproductive impact on
the designated groups, as well as their constituencies. Many armed groups seem
to be unaware of the possibility to appeal for delisting or find it too
complicated. Therefore, there is little incentive for these groups to adapt
their behavior and can instead lead to further isolation and increased
radicalization, consequently reducing the chances for a negotiated settlement.
Some groups, such as Al Shabaab or Hamas, have even used the terrorist
proscription as a propaganda tool; either to increase their status or to
illustrate their victimhood. The option of delisting can also be used as a
prerequisite for peace talks by groups. This works, however, only if the
delisting process is a feasible option (Haspeslagh and Dudouet 2011, 5).
In Sri Lanka, the
increasing debate around securitization and the war on terror that arose
post-9/11 affected the Liberation Tigers of Tamil Eelam (LTTE) in terms of raising
funds, legitimacy, and access to weapons, as many countries had listed the
group as a terrorist organization, therefore cutting off funds from the
diaspora and different organizations in Western countries. In response to the
EU listing of the group, the LTTE rejected a mission that was supposed to
monitor the ceasefire in 2002 and was supported by the EU (Dudouet 2010, 10;
Zartman and Faure 2011, 114–15). The Sri Lankan government’s refusal to engage
with the LTTE, which the international community equally adapted, led to the
listing of the group in various countries which furthered the group’s isolation
and is by many scholars and peace practitioners seen as a major cause for the
further protraction of the conflict (Helgesen 2007, 12–13). Although the
listing showed its desired effect for the Sri Lankan government in terms of
delegitimizing the group, one should not disregard that for the overall peace
process, this approach was rather harmful.
For third-party
mediators, engaging with non-state armed groups that are listed as terrorist
groups by a local or foreign government also presents them with a variety of
challenges. They need to strike a balance between considering the rule of law
and respecting the affected countries’ sovereignty while at the same time
enabling an inclusive peace process characterized by impartiality towards all
conflict parties (Toros 2008, 411; Wils and Dudouet 2010). The trend towards
hard counterterrorism approaches in the wake of 2001 has left many
international mediators restricted in their engagement with proscribed groups.
The European
Union, which sees itself as a main actor in international peace negotiations,
stated in its factsheet on mediation and dialogue in 2012 that peace
negotiations need to be open for all relevant actors concerned, but that they,
at the same time, risk interfering with domestic affairs or legitimizing human
rights violations when they engage with non-state armed groups. The EU
acknowledges that engaging with the armed group could contribute to the
termination of the hostilities, protect civilians, and make them “aware of
their negotiation potential and capacity to influence the peace settlement,
which could positively impact the peace talks” (European Union External Action
2012). However, the increasing categorization of armed groups as terrorist
organizations has impacted the EU’s capacity for mediation drastically, as
engaging with groups that are listed as terrorists is a crime under many
national laws (Toros 2008, 411).
Although the EU
proscription procedure does not legally prohibit contact with groups that are
designated as terrorists, it nevertheless severely impedes the EU’s credibility
as a neutral mediator. In several instances, the EU has listed organizations as
terrorists while at the same time trying to engage with them. In May 2002 for
example, the EU listed the Kurdistan Workers’ Party (PKK) as a terrorist group
in response to Turkish demands, although the group had not been overtly active
for the previous three years. The timing was especially striking as the group
had announced only a few days earlier that it plans to dissolve itself and
reorganize peacefully and democratically. Thus, the decision by the EU
drastically disrupted efforts to find a peaceful, political solution at the
time (Dudouet 2011, 7).
Most blacklists
usually entail a ban on funding the respective groups, whether it is directly
or indirectly. Under these legal restrictions fall also all expenditures
related to negotiating trainings, exploratory dialogue, or invitations to peace
talks that include paid flights, food, or accommodation for members of the
banned group (Dudouet 2011, 9–12). For example, the FTO list states that it is
illegal for any resident of the United States or party under U.S. jurisdiction
to offer any support “that can be construed as having tangible or intangible
monetary value” (Dudouet 2011, 10) to a group that is listed. This especially
affects NGOs that operate internationally and receive funding from countries
that adopt these terrorist blacklists and cannot just withdraw from a treaty.
The German-based
NGO Berghof Foundation had to stop one of their projects that promoted the
collaboration between members of armed resistance movements and mediators that
were involved in successful conflict resolution due to the introduction of new
funding legislation in two of its donor countries, the United States and
Canada, as some of the participants belonged to a group that was banned in
these two countries (Dudouet 2011, 11). NGOs that are involved in peacemaking
activities and humanitarian or development projects are thus often restricted
by the arbitrary listing of groups by national governments. Especially for
small, local, grassroots organizations, this can have very damaging
consequences, as they cannot rely on international support as some bigger
organizations do and are particularly vulnerable to the government's
interpretation of what constitutes a national threat (Dudouet 2010, 11).
NGOs that are involved in peacemaking
activities and humanitarian or development projects are thus often restricted
by the arbitrary listing of groups by national governments.
Besides the
criminalization of engagement, conflict mediators also face increasing
stigmatization, as the public discourse is strongly polarized. Parties that are
engaging with proscribed actors as a way to explore non-violent solutions are
often faced with criticism as they are perceived as sympathizing with the enemy
and legitimizing the violent tactics of the respective groups. Even though the
engagement itself might be approved by the government, the national and
international discourse surrounding conflicts that involve terrorist groups is
often characterized by “either us or them” narratives, which make it difficult
for the public to accept an engagement with the declared enemy of the state
(Haspeslagh and Dudouet 2015, 120).
4. The Need For A More
Nuanced Approach
As the above
discussion has shown, the events of 9/11 and the related increase in the
indiscriminate listing of non-state armed groups as terrorist organizations
have had significant and wide-ranging impacts on engagement with these groups
and their inclusion in peace negotiations. The proscription of armed groups by
local and foreign governments has considerably limited the scope of
possibilities for engagement and consequently made understanding and
influencing their tactics more difficult.
The fight against
terrorism has in many contexts become more important than the resolution of the
conflict, often at a cost to civil society that is suffering from the violence
the most. Not only has the dominance of counterterrorism as a paradigm become
an obstacle to many peace processes, but it has also actively contributed to
the protraction of violent conflict (Haspeslagh 2013, 17; Santos 2010,
145–150). Many peacebuilders had to withdraw from their engagement with
specific armed groups as a consequence of blacklisting and related sanctions
(Boon-Kuo et al. 2015, 35).
The labeling of groups as terrorists is
primarily a political choice.
The labeling of
groups as terrorists is primarily a political choice and terrorist blacklists
are often characterized by vague definitions that lack differentiation between
the different types of groups. Non-state armed groups are inherently violent,
but not all groups are equally violent and not all groups apply the same
tactics and intend to reach the same objectives. All non-state armed groups can
be considered a threat to a certain extent, at least to the government whose
authority they are contesting, but not all groups are equally threatening to
international security or the national security of foreign states. (Gross 2011,
44–47).
In order to
overcome these challenges that emerge from strict counterterrorism approaches
and hinder the peaceful transformation of conflicts, a more nuanced
understanding of non-state armed groups is necessary. Instead of reducing these
groups solely to the tactics they apply, the specific setting and objectives of
these actors need to be taken into account in order to find context-specific
solutions.
The academic
discourse has stressed for years that engagement with non-state armed groups is
crucial for inclusive, sustainable peace agreements. What is needed now is that
policymakers grasp the complexities of contemporary conflicts and truly try to
understand the “enemy” they are confronted with and refrain from using
simplified narratives in order to justify the use of force to address these
conflicts (Helgesen 2007, 19). In order to improve the possibilities of
peaceful
engagement with
listed groups, the following suggestions could be explored as potential
alternatives and amendments to current counterterrorism approaches.
·
Listing and delisting procedures need
to be more transparent. If terrorist blacklists are used as a counterterrorism
tool, governments should ensure greater transparency in terms of the criteria
that lead to the listing and delisting of armed groups and refrain from an
inconsistent application of the terrorist label out of political
considerations. Lists should only include groups and individuals that “present
a real, substantial and established danger to the national security of the
state or the international or regional collectivity creating the list”
(University of Ottawa Faculty of Law 2007).
·
Governments should de-securitize their
engagement with non-state armed groups. With regard to the lack of a universal
“terrorism” definition, governments should avoid using the term
indiscriminately, as it blurs the line between legitimate political movements
and unlawful political activities. Terrorist lists should not be used as a tool
to silence non-violent dissidents (Dudouet 2011, 13).
·
Delisting procedures should be used
more actively as an incentive for groups to reduce or give up violence and
engage in a peaceful resolution of the conflict.
·
Frequent review processes should be
introduced. Instead of having to appeal for delisting, governments should also
review their lists on a regular basis to ensure that positive behavioral
changes of non-state armed groups are rewarded.
·
Negotiation efforts should be
decriminalized. Especially in countries where the FTO list leads to
far-reaching legal restrictions, it would be crucial to ensure that efforts by
peace mediators and humanitarian organizations to engage with proscribed armed
groups are legalized at some level.
·
Research on the effectiveness of
hard-security approaches with regard to conflict resolution should be
increased. Existing research suggests that military responses are not very
effective in ending terrorist violence. Current terrorist lists are, however,
used as a tool to legitimize violent counterterrorism approaches. Further
research on the effectiveness of current terrorist sanction lists could help
improve understanding about what aspects of sanctions regimes are effective in
incentivizing groups to abandon terrorist violence and which ones might be
counterproductive (Haspeslagh 2016, 9).
5. Concluding Remarks
This article has
addressed the dilemmas related to engagement with non-state armed groups in
peace negotiations and specifically looked at the impact of terrorist
blacklists on these interactions. Engagement with non-state armed groups has
become increasingly more challenging in the context of the global fight against
terrorism. The increasing characterization and listing of non-state armed
groups as terrorist organizations has tremendously shaped the possibilities of
engagement for governments and third-party actors. While blacklists fulfill
their purpose in delegitimizing and restricting armed groups and provide a
blueprint for a government response, they can also severely impede peaceful
dialogue with listed groups and thus negatively impact the resolution of a
conflict. In particular, the work of NGOs and third-party peace practitioners
is severely restricted by criminalizing any form of interaction with listed
groups. In order to reach an inclusive, stable, and peaceful resolution of
conflict, governments and international organizations should refrain from using
undifferentiated and vague definitions of terrorist groups that are harming
peaceful engagement. Instead, counterterrorism approaches should increasingly
shift their focus towards peaceful dialogue as a first option and not a last
resort.
Notes
1 The
armed groups considered in this paper concern those whose rebellion or
resistance challenges the authority of the state as a whole and does not
include criminal networks and gangs or paramilitary groups or private security
providers.