Armed non‐State actors and displacement in armed conflict Table of contents

Executive summary ...... 4 2] Challenges and opportunities to strengthen Background and methodology ...... 5 ANSAs’ compliance ...... 30 Armed non‐State actors Introduction ...... 6 a) Legal and normative challenges ...... 30 i) Gaps in coverage ...... 30 and displacement PART I: ANSAs and the dynamics of displacement ii) Lack of clarity and consistency ...... 31 iii) Lack of efficacy ...... 31 in armed conflict 1] Triggers of displacement and the roles of ANSAs 8 b) Opportunities ...... 32 a) Displacement as an intentional outcome by ANSAs 8 i) Increased attention of norms to ANSAs ...... 32 i) To uproot and punish ...... 8 ii) Greater accountability through monitoring ii) To control populations and maintain of ANSAs’ commitments ...... 32 a support base ...... 9 iii) To control territory ...... 10 PART III: Engagement with ANSAs in displacement iv) To protect populations ...... 12 contexts: operational and policy implications b) Displacement as by-product of conflict and other drivers, such as natural disasters ...... 12 1] The interface with ANSAs in displacement environments ...... 34 2] The diversity of relationships between a) Concerned and host States ...... 34 ANSAs and displaced people ...... 13 b) Host communities ...... 35 a) The role and behaviour of ANSAs ...... 13 c) Local civil society ...... 36 i) Abusive and exploitative behaviour ...... 13 d) Diasporas ...... 37 Author: Héloïse Ruaudel ii) Governance role ...... 14 e) The international community ...... 38 Consultant for Geneva Call and Visiting Fellow b) Other dimensions of the relations between ANSAs i) Third-party States ...... 38 at the Oxford Institute for Ethics, Law in Armed Conflict (ELAC) and displaced people ...... 16 ii) The United Nations ...... 39 i) A reciprocal more than a unilateral relationship 16 iii) International organizations ...... 40 ii) The gender and kinship dimensions ...... 17 iii) Displaced people’s self-protection strategies ..... 18 2] Challenges, limitations, and opportunities to iv) An evolving or dynamic relationship ...... 19 engage ANSAs on the protection of displaced people 41 a) The impact of restrictive State policies PART II: Legal and normative framework and counter-terrorism measures ...... 42 b) Restricted engagement or avoidance 1] Legal and normative framework of engagement ...... 42 for ANSAs’ compliance: scope and limitations ...... 20 c) Militarization of displacement sites ...... 44 Produced by Geneva Call with the generous support of the Swiss Federal Department of Foreign Affairs a) International humanitarian law ...... 20 d) Tools for engaging ANSAs on protection i) Explicit protection from displacement ...... 20 of displaced people ...... 44 ii) Protection and treatment of displaced persons 21 e) Opportunities to assert ANSAs’ responsibilities ...... 45 Editor: Maurice Herson iii) The return of displaced persons ...... 21 Graphic Designer: Kathleen Morf, www.kathleenmorf.ch b) Human rights framework ...... 21 PART IV: Conclusions and recommendations Printer: Imprimerie Villière, www.imprimerie-villiere.com c) International criminal law ...... 22 Cover Photo: Afghan refugees leave Khonabad, Kunduz province, the only province in the Northern Afghanistan d) Displacement law and norms (refugees and IDPs) 22 1] Key findings ...... 46 still under the Taliban control. © REUTERS/Gleb Garanich (2001) i) Explicit protection from displacement ...... 23 2] Recommendations and suggestions ii) Protection and treatment of displaced persons ..... 23 on ways forward ...... 48 © Geneva Call, October 2013 iii) The right to return ...... 24 e) Protection of civilians ...... 24 Endnotes ...... 50 f) ANSAs’ humanitarian commitments ...... 24 Selected bibliography ...... 55 The statements, findings, conclusions and recommendations expressed in this study are those of the author Box 1: Legal and normative provisions Acronyms ...... 58 and do not necessarily reflect the views of Geneva Call. addressing ANSAs ...... 26 Acknowledgements ...... 60 Box 2: Scenarios of displacement and legal pathways 28

2 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 3 Executive summary Background and methodology

This report was stimulated by a conference on armed ANSAs operate within a broader environment, locally This study on armed non-State actors (ANSAs) and ways forward to further improve the protection of non-State actors (ANSAs) and the protection of inter- and internationally, of those who would protect or displacement in armed conflict was commissioned by displaced people. nally displaced people organized in 2011 jointly by assist displaced people and who would have oppor- Geneva Call with funding from the Human Security Geneva Call and the Internal Displacement Monitoring tunities to engage with ANSAs. Again, there are both Division of the Swiss Federal Department of Foreign Some 70 key informants (mainly researchers, policy- Centre. The conference itself followed on from a limitations to the engagement with ANSAs by human- Affairs (FDFA). makers, United Nations (UN) staff and representatives special edition of Forced Migration Review magazine itarian organizations and opportunities in the various of non-governmental organizations (NGOs) with on ‘Armed non-state actors and displacement’. approaches taken on displacement-related issues both The research builds on a two-day conference on ANSAs diverse geographical and thematic expertise) were by these other stakeholders and by ANSAs. and the protection of internally displaced people (IDPs) interviewed during the research and six experts ANSAs have many different modes of interaction with organized in 2011 jointly by Geneva Call and the Internal reviewed the final draft, in addition to Geneva Call displaced people, ranging from being the causes ― A set of summarized key findings emerge from the Displacement Monitoring Centre (IDMC).1 The confer- staff. A ten-day field trip to the - Thai Burma border deliberately or otherwise ― of the displacement examples offered in the analysis. These address how ence provided an opportunity for academics and prac- offered an opportunity to test some of the hypotheses through to actively taking protective action towards ANSAs operate in relation to displaced people and titioners to present their work, including articles written developed through the research. Interviews were displaced people. People may choose to displace how the institutional, social, and political contexts for a special edition of Forced Migration Review conducted with senior members of four ANSAs, the themselves or not partly dependent on the link they must be understood in order to make engagement (FMR) on ‘Armed non-state actors and displacement’.2 Karenni National Progressive Party (KNPP), the Karen have with ANSAs. That relationship is not fixed but will with ANSAs both feasible and positive for the sake of Selected members (active and former) of ANSAs as National Union (KNU), the Chin National Front (CNF) change over time and as a result of factors internal or displaced people. well as representatives of donor governments were and the Pa-Oh National Liberation Organization external to that relationship. invited to share their perspectives and experiences (PNLO), displaced people living in Mae La refugee From these findings a set of recommendations is with other participants. The event recognized the camp,5 analysts, donors, as well as staff of United There exists a well-established legal and normative offered for States, the diaspora, the United Nations, important role, both positive and negative, thatANSAs Nations High Commissioner for Refugees (UNHCR), framework applicable to displacement contexts a range of international and local civil society organi- play in relation to displacement, and highlighted the international NGOs and civil society organizations. (international humanitarian law, human rights law, zations and humanitarian and human rights actors, need for further research on the dynamics at play in international criminal law, refugee law, and internal and research institutions. order to develop or refine strategies for engagement displacement norms), which however leaves gaps and with ANSAs, with the ultimate goal of ensuring better What is an armed unclear areas in relation to ANSAs. There are both protection and assistance to affected populations. challenges and opportunities for strengthening ANSAs’ non-State actor (ANSA)? compliance with those laws and norms. Despite the significance of the subject matter, there is There is no universally agreed definition of an limited existing research within the field of forced ANSA. For the purposes of this study, the term migration that specifically addresses the role of ANSAs. ANSA is used to indicate organized armed enti- Research on ANSAs equally fails to engage in any ties that are primarily motivated by political depth with displacement. Besides the above mentioned goals, operate outside effective State control, conference and the special issue of FMR, exceptions and lack legal capacity to become party to rele- include a 2005 article on ‘Engaging ANSAs on IDPs vant international treaties. This includes non- protection’, which gave an analysis of the character, State armed groups, national liberation move- motivations and actions of ANSAs and provided some ments, de facto governing authorities, and policy suggestions to engage ANSAs on IDP rights.3 A States that are not or are only partially interna- 2012 book on ‘Armed Conflict and Displacement’ tionally recognized. ANSAs are usually engaged offers a review of the existing legal framework for the in armed struggle against State forces or other protection of refugees and displaced persons under ANSAs in the context of non-international International Humanitarian Law (IHL) and covers the armed conflict or other situations of violence.* legal and normative framework applicable to ANSAs.4

This study builds on the above endeavours; it seeks * This definition was developed by Geneva Call for oper- to deepen our understanding of the interplay between ational purposes. There may be other armed entities ANSAs and displacement, both internal and cross- involved in armed conflict or other situations of violence border, through an analysis of secondary inter- which do not meet this operational definition: for disciplinary literature. The research also draws upon instance, paramilitary groups and private military and geographically diverse case studies based on past and security companies (PMSC) are not considered to fall current armed conflicts, and makes suggestions on within this definition.

4 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 5 Introduction

According to the 2012 World Disasters Report, out War context.12 There are in addition multiple factors Part 2 provides an overview of the legal and normative and local organizations ― are likely to have an of 73 million people who are forcibly displaced, that influence the composition and behaviour of framework applicable to ANSAs in displacement influence on the dynamics between ANSAs and 43 million are fleeing armed conflict and persecution, ANSAs. Some are intrinsic to the very ideology contexts, also looking at the interplay that exists displacement. It provides a mapping of current a category of displacement which has increased over of the group which often includes military, political, between the different bodies of international law engagement efforts with ANSAs on displacement the last decade.6 Of this number the majority, about economic, ethnic, religious, and socio-cultural com- (international humanitarian law, human rights law, issues, reviewing some of the limitations as well as 28 million are IDPs, many of them as a result of non- ponents, while others relate to peripheral factors that international criminal law and refugee law). It then opportunities and comparative advantages of these international armed conflicts. In 2010, ANSAs were are concerned with the broader evolution of the points to the gaps, challenges and opportunities for different approaches. reportedly the agents of displacement in a quarter of particular conflict and the influence of other- stake strengthening ANSAs’ compliance with those laws these conflict situations that generate displacement.7 holders. and norms. Part 4 presents a set of conclusions on key findings A 2009 International Committee of the Red Cross that have emerged from the research. It uses these to (ICRC) survey over eight conflict-affected countries Civilians continue to be involved and affected: they Part 3 reviews the broader environment that ANSAs then make concrete recommendations to various revealed that more than half of all people affected by can be the target of violence as well as sometimes its operate within. It describes how other stakeholders stakeholders for engaging ANSAs on displacement armed hostilities had been displaced.8 source, with phenomena such as popular uprisings ― especially the diaspora, States, and international issues. leading to the formation of ANSAs. Both the urbani- In his book Killing Civilians Hugo Slim explains how zation of conflicts and their increasingly protracted in conflict situations people experience “dramatic nature have permeated displacement patterns. change in their normal patterns of space and move- Combined, these trends contribute to blurring the ment. Spatial suffering takes many forms and results distinction between civilians and combatants and are either from people’s efforts to avoid the war or from the cause of on-going challenges to laws and policies a warring party’s determination to disperse civilians that have been developed based on those categories. to break their link with a contested area of land or restrict their movement. In all these different This research takes as its point of departure the close experiences of relocation and spatial suffering, civilian correlation between conflict and displacement and populations have moved with varying degrees of force the well-established fact that the law prohibits unlawful or voluntarism. Loss of control of one’s traditional displacement by all belligerents. Yet much less is space and one’s normal pattern of movement is known about what bearing the motivations and central to most civilian experience in war and a major behaviours of ANSAs have on triggering displacement, form of suffering.”9 Displacement should be concep- about the diversity and complexity of the relations tualized both as a response to a threat and/or as a between ANSAs and displaced people, and about the protection strategy and so while displacement is role played by factors such as the course of conflict in commonly described as a negative outcome, moving triggering or sustaining displacement. away from a real or perceived threat is first and foremost a self-protective measure and may be the Part 1 outlines some of the dynamics at play between only way to avoid death and serious harm.10 ANSAs and the phenomenon of displacement. It looks at the different phases of displacement, starting with Furthermore, the perception of displacement as a scenarios where ANSAs are agents of displacement. single, linear, short term event is also increasingly It also looks at the role they play when displacement inaccurate. Instead, displacement often takes place is induced by the other party or when conflict is not in sequential waves and the reality of protracted (or not the only) trigger of displacement, putting displacement reflects a landscape of long-lasting the emphasis on the displaced people’s own role conflicts and recurring crises. In short, people tend to in these processes. It then addresses the array of be displaced more often, repeatedly, and over longer possible relations between ANSAs and displaced periods than previously.11 people during displacement and how these can fluctuate according to a range of factors pertaining to A Free Syrian Army soldier at Atme camp for internally displaced people on the Syrian side just over the border with Turkey. Many analysts agree that contemporary conflicts have the ANSAs, the displaced people, or the evolution of © Jodi Hilton/IRIN (2012) been characterized by the proliferation as well as the the conflict. diversification of ANSAs, which some have attributed to generally weaker state institutions in the post-Cold

6 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 7 Part I ANSAs and the dynamics of displacement

The interactions that ANSAs have with displaced the grievances ANSAs or their constituencies may in camps, whether in the form of large scale massa- Towards the end of the conflict in Libya, during the populations are complex. At times ANSAs are moti- have against civilians often have historical roots and cres, repeated attacks, or symbolic acts of cruelty summer of 2011, ANSAs from Misrata have been vated to trigger displacement while in other situations may be linked to a range of ethnic, religious or socio- such as mutilations.15 For Joseph Kony, the leader of involved in the systematic destruction of the city of displacement is not directly intended by ANSAs. During economic dynamics. ‘Ethnic cleansing’ can manifest the LRA, the reasons behind the attacks on displaced Tawargha forcing its inhabitants to flee because they the displacement phase itself, with the evolution of itself not only through deliberate violence towards a camps were both linked to a sense of betrayal by the had allegedly supported the Qaddafi forces during a conflict and when solutions to displacement are specific ethnic group but can seek its total disposses- Acholi community who left their villages to move to the Misrata siege. Tawargha’s IDPs attributed their being considered, there is a diversity of relationships sion through forced removal as took place in Bosnia camps on the orders of the Government of Uganda, displacement to the desire of revenge for the crimes between the ANSAs and the displaced. The first section following the dissolution of Yugoslavia in 1991. From and were a means to prove to them their mistake and human rights abuses that Tawargha’s fighters of this part outlines some of the dynamics at play. The 1992, Bosnian Serb paramilitary forces expelled Muslim by showing them the inability of the government to committed. Two years after the conflict, Tawargha is second section addresses the variety of relationships populations from Eastern Bosnia and destroyed their protect the camps from attack.16 a ghost town and the inhabitants of Misrata remain between ANSAs and the displaced. homes or gave them to Serbs displaced from elsewhere, bitterly opposed to the return of Tawarghans and at least partly to ensure t hat the people expelled In the Democratic Republic of Congo (DRC) as control continue to be the target of revenge crimes.19 1] Triggers of displacement would not return in the future. While ethnic cleansing of territory and populations fluctuates between and the roles of ANSAs was overwhelmingly committed by Bosnian Serbs, it armed groups, some ANSAs displace people or conduct ii) To control populations and maintain was adopted by Bosnian Croats and Muslims too.13 reprisal attacks motivated by revenge. A group may, a support base There are various ― often overlapping ― factors that for instance, displace people because they have In some situations the intention of controlling the move- can lead an individual or a group of persons to become allowed another group to occupy a village, or in the ment of the population may not necessarily have the displaced, but displacement is essentially the result case of the Democratic Forces for the Liberation of objective of harming civilians (although that can be an of a coercive removal from a habitual residence, Rwanda (Forces Démocratiques pour la Libération du unintended outcome.) The aim of ANSAs in this scenario the outcome of other factors which prompt the Rwanda, FDLR) some episodes of displacement have can be to keep the civilian support base with them, departure, or a combination of the two. The coercive been in retaliation for military attacks against them. through displacement or by preventing or restricting factors may be direct or more often result from other Testimonies of IDPs and of former combatants all their movements, or to strengthen the support base by violations, either temporary or longer term. The agree that the FDLR attacked civilians whom it accused displacing those considered undesirable. This support displacement (or the containment) may not be entirely of collaborating with the Rwandan army. Military base provides political support, material support, a source coerced depending on whether the civilians have interventions against ANSAs in the DRC systematically of recruitment, and intelligence, among other things. strong incentives to move with the group. These can and recurrently lead in this way to increases in the range from a genuine allegiance to the fear of retaliation number of displaced people.17 The most significant episode of forceful displacement by the ANSA or punishment from state authorities or by the Liberation Tigers of Tamil Eelam (LTTE) ― that other ANSAs. The next sub-section explores situations In Colombia, the Revolutionary Armed Forces of of the Muslim community from the Jaffna Peninsula in where displacement coincides with deliberate intent Colombia (Fuerzas Armadas Revolucionarias de Northern Sri Lanka in October 1990 ― illustrates what on the part of the ANSAs. Colombia, FARC) have used violent acts and threats, has been described as the LTTE’s strategy to maintain including forced displacement, as a means to punish and strengthen the Tamil stronghold.20 While of different a) Displacement as an intentional outcome by ANSAs Albanian Kosovars returning home after months of hiding from individuals considered to be informers or collaborators faiths, historically Muslims and Tamils living in the There is a plethora of motives behind deliberate, the Serb military who looted and burnt their homes. In retaliation with government forces.18 North and East of Sri Lanka were integrated into local either direct or indirect removal of a population the former refugees loot and burn the homes of ethnic Serbs life as inter-dependent communities speaking the who have fled with the military. © Anthony Suau (1999) from a territory. Although one set of actions may be same language. However, the relationship became predominant, there can be several motives which may more difficult and segregated during the 1980s especially overlap with one another. While displacement may Revenge has been identified as one of the factors in the East and violence developed between Tamils be pursued by authorities or agents of the State ― explaining ANSAs’ violations of IHL. Referring to the and Muslims.21 While the LTTE did not officially release such as paramilitaries or militias ― this study is only concept of ‘negative reciprocity’, recourse to dis- any clear reasons for the expulsion of the Muslims, it concerned with the behaviour of ANSAs. placement can be used to reciprocate displacement appears to have been a response by the LTTE leader- (or other violations) caused by the adversary.14 It can ship to the threat posed by an increasingly strong i) To uproot and punish be intended also to punish civilians suspected of national Muslim political party and the formation of Beyond to the objective of territorial conquest and collaboration. Mistreatment and human rights abuses Muslim home guards which would undermine the control, some ANSAs use the forced removal of civil- committed by the Lord’s Resistance Army (LRA) have LTTE’s goal of a mono-ethnic Tamil state. ians to dispossess and punish them. The intention been described as ‘revenge attacks’ or ‘punitive actions’. Children at the site for people displaced from the town of may be to destroy or break the societal or cultural Acts of extreme violence and terror have been perpe- Tawargha during the 2011 Libyan civil war. "Airport Road/ Turkish While the bulk of the attention to the phenomenon of structure. The harmful acts are rarely fortuitous and trated deliberately by the LRA against displaced people compound" site in Tripoli. © Heba Aly/IRIN (2011) displacement is on the actual transfer or movement

8 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 9 Part I ANSAs and the dynamics of displacement

of populations (as it is the most visible effect and return. In Colombia, the FARC have prevented or tural livelihood to move closer to mineral extraction the prerogative of the State to justify the forced generally has significant humanitarian impact) it is controlled the return of the displaced where suspicion sites. In areas under the control of the FDLR, popula- removal of populations in the name of ‘development’). also worth considering that the motives behind forced of collaboration with the State or associated para- tions may either be coerced to leave their land or These types of displacement tend to be motivated by immobility ― when movement and mobility are military groups existed. Returnees had to seek compelled to work in the mines controlled by the economic interests and are often to the detriment restricted ― may be similar. As summed-up by permission to return and, if allowed, they were able group. A member of a local Congolese NGO is quoted: of rural and ethnic minorities who get little benefit Olivier Bangerter, “forced displacement can be used to do so under specific conditions resulting in further “if a mine is discovered by the population, the FDLR or inadequate compensation as a result of their either to force the ‘undesirables’ to flee to the enemy restrictions on their movements.26 In Burma/Myanmar, come and take it over [...] No one can stop them. displacement. These practices are often connected to or the ‘desirables’ to remain in or move to the areas ANSAs’ cautious positions towards return appear to People just observe.” For another one: “people simply or may be the very cause of a conflict situation, hence controlled by the ANSA, especially if the ANSA relies be at least in part based on humanitarian grounds. can’t refuse to work for them”.29 blurring the lines over what the primary motivations on their support”.22 Burmese ANSAs believe that the security conditions in for displacement were. areas of return inside the country ― including In Mindanao in the Philippines, the control of strategic Understanding the reasons ANSAs may have for precarious ceasefires, the failure of the national army territory (land and natural resources) constitutes one IDMC has reported that Burma/Myanmar remains impeding populations from fleeing may be as important to withdraw, and the presence of landmines ― are of the underlying structural causes of forced displace- the country most affected by conflict-related forced as understanding their motives for causing displace- not yet conducive to the return of refugees, a view ment as the means of asserting territorial control and evictions and confiscation of property, displacing ment. These might range from a desire to convey a which is mostly shared by the refugees themselves.27 political influence. “The confluence of armed conflict, millions of people inside the country and across its semblance of normalcy to mask a humanitarian crisis The position of some of these groups towards return corrupt politics, and the destruction [or] confiscation borders. While the government caused the majority to keeping a population under their control. For may also be based on more strategic and political of rural IDP productive assets, especially fertile agri- of these displacements, some ANSAs, such as the example, during the famine crisis of 2011 in Somalia, considerations. It has recently been suggested that cultural land … is … at the heart of the political economy Democratic Karen Buddhist Army (DKBA), havereport - Al-Shabaab reportedly “stopped the displaced from the KNU has a preference for the return of the dis- of conflict-affected Mindanao”.30 edly done so too. The pace of forcible acquisition of moving to Mogadishu to reach humanitarian assistance, placed before the 2015 elections in order to enhance land intensified after the ceasefire agreements in moving them instead to ‘K50’, a makeshift camp located their electoral prospects. Such land grabbing and confiscation can be compared 2012; various civil and military State authorities, south of the capital, because they didn’t want people to development-induced displacement, a displacement Artisanal mines in Wasta, Northeastern Congo. Most of these miners to abandon their area of control and also because iii) To control territory process occurring mainly outside the context of are ANSA combatants who have control over mineral rich areas and they didn’t want to be seen as unable to help the Some ANSAs may clear the land of its inhabitants conflict and led by State authorities (as it is within are profiting from their exploitation. © Marcus Bleasdale/VII (2003) needy and their leaving [to be seen] as a vote of in order to access and exploit a specific territory for no-confidence in the group”.23 military or economic purposes (e.g. land rich in minerals, grazing or logging opportunities, access to the sea Another argument often advanced as to why ANSAs and fishing opportunities). These types of intentional would prevent people from leaving is to deter their displacements may or may not be combined with adversary from targeting them, as it would also some degree of harmful intention towards civilians. increase the risk of causing ‘collateral damage’ in For example, through looting and burning villages, heavily populated areas. This may have been a factor attacking IDP camps, amputating, raping, and killing explaining why in Mali in 2013 there have been civilians living in government-held zones, the apparent reports that armed groups have prevented people dis- aim of the Revolutionary United Front’s (RUF) practices placed in the North from seeking refuge in the South.24 in Sierra Leone was to drive away rural populations Another clear illustration of this was the strategy of living on the fringes of rebel strongholds in order to the LTTE towards the end of the conflict in Sri Lanka create a protective no-man’s land for themselves.28 in 2009; as military attacks from the government increased, the LTTE kept civilians closely around them in In Eastern DRC where power dynamics between State the hope that this would deter the army from attacking and ANSAs have shifted several times and are linked them. In this case the strategy failed as it did not stop to one or more of them forming temporary military the army from attacking despite the civilian costs.25 and trading alliances to curtail the dominance of the other(s), the ethnic motivation for the displacement While States, often with the support of international or containment of populations has at times been organizations and the involvement of civil society, superseded by territorial considerations. Theexploita - play a more central role when return is taking place, tion of mineral mines by various - power holders and less attention has been paid to the role of ANSAs and arms-bearers has caused both displacement and their motives for either deterring or encouraging migration; thousands of people have left their agricul-

10 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 11 Part I ANSAs and the dynamics of displacement

foreign and domestic companies and armed ethnic tional displacement is lawful according to IHL, justi- left the city in the context of violence between the 2] The diversity of relationships between groups are involved in ‘profiteering’ from land grabbing fied by an imperative military reason as well as the Transitional Federal Government (TFG) and Islamic ANSAs and displaced people and have undertaken or facilitated displacement. As intention to protect civilians. militant groups. Loss of physical and financial assets long as the current dislocation of IDPs and refugees and the collapse of socio-political protection were Most narratives tend to emphasize the dissociation allows these practices to take place, the risk of future In the Burmese context, ANSAs had ethnic and religious among the key factors that explain their decision to between ANSAs and displaced people. This is in line with land-related conflicts only increases. ties with civilians and these communities faced move. Moving was also gradual, with testimonies the IHL principle of distinction between combatants and violence or persecution committed by the army of people first relocating within Mogadishu before non-combatants and might more simply be linked to the iv) To protect populations especially in the areas close to the border which deciding to leave the city.31 tendency to fit people into the categories of perpetrator While human rights abuses and displacement episodes remained under the ANSAs’ control. As the Burmese or victim. The risk with these over-simplified narratives is triggered by ANSAs are recorded ever more system- army’s campaigns intensified and entire villages were Natural disasters can also trigger large-scale displace- that they present a partial and often inaccurate account atically, there is still a gap over the reporting and destroyed, some people benefited from the support ment and may be combined with pre-existing conflict- of the range of interactions that may exist between monitoring of initiatives taken by ANSAs to evacuate of ANSAs which provided safe passage through the induced displacement. In such instances the belligerents ANSAs and civilian populations and the specific interplay and assist civilians with the explicit intention of jungle and secured their safe crossing into Thailand. find themselves with the responsibility to address that exists between ANSAs and displaced people. protecting them. Several factors may explain this new or increased episodes of displacement, as in information gap; these include the absence of the After the invasion of Western Sahara by Morocco Mindanao where the 2011 floods affected the return a) Role and behaviour of ANSAs actors who would typically monitor and report on the in 1975, thousands of Sahrawis fled to Algeria. They areas of those displaced by the conflict between the Below are some scenarios and examples which high- actions of ANSAs and the fact that such monitoring were reportedly provided safe passage by the Polisario government and the MILF in 2008, or in Sri Lanka light the diversity and sometimes ambiguity of these typically focuses on violations rather than positive Front, which helped set up the camps. when both the LTTE and the government responded relationships, ranging from being mainly exploitative actions. Furthermore, the international State-centric to the effects of the 2004 Indian Ocean tsunami. and predatory through more nuanced ones of toler- framework lets States respond to accusations of b) Displacement as a by-product of conflict ance and acceptance to ones of mutual support, human rights abuses, including displacement, through and of other drivers, such as natural disasters There are also situations where ANSAs play a role in solidarity, and protection. Specific examples may help mechanisms such as the Human Rights Council, There are instances when ANSAs have no direct or preventing or addressing displacement induced by to identify the factors in whether the relationship whereas such forums do not exist for ANSAs. It could deliberate intention to cause displacement. In many their enemy. In 2010 IDMC reported that about half is primarily driven by coercion or by choice and also be that ANSAs may opt for these actions toremain situations the trigger for displacement is not the the situations of displacement took place in contexts reciprocity. Although there are no traceable consistent discreet for the very same purpose of preventing follow- forced physical removal of civilians but the civilians where the agents of displacement were either or systematic behavioural patterns given the multiple up targeted attacks on civilians in the new locations or themselves making the decision to flee (or to stay); government forces or armed groups associated with factors and actors that can affect these dynamics, it reprisals against the ANSA itself. Because of the above it is important to note the diversity and variability the government.32 The assimilation of minorities, is possible to highlight some trends and show how and the diversity of behaviour, it is not easy to deter- in people’s responses as conflict impinges on their especially of Kurds, has been a recurring pattern of relations may vary from being abusive to protective or mine what the factors or circumstances are that everyday lives. Indeed the reasons that would prompt Turkish nationalism. Over several decades the Turkish neutral, keeping in mind that while one set of behaviours would lead an ANSA to protect populations from the decision to flee are diverse ― with economic, authorities forcibly removed thousands of Kurds may be predominant it can overlap with others. displacement or protect them by facilitating their social and psychological dimensions ― and often by demolishing Kurdish dwellings and deporting the flight and relocation. In general, however, the closer cumulative, notwithstanding the fact that one specific population.33 The Kurdistan Workers’ Party (Partia i) Abusive and exploitative behaviour the group is to its constituency, the more inclined it event may be the proximate triggering factor. Karkaren Kurdistan, PKK) emerged in Ankara in the The poor human rights record of some ANSAs, combined will be to improve rather than impair civilians’ lives. early 1970s in reaction to Turkey’s move-and- with the fact that ANSAs often depend on civilian Organic links may exist such as a common ethnicity, In contexts where civilians are suffering from general- assimilation strategy. Between 1993 and 1995 the populations for essential resources such as fighters but also the members of the ANSAs may be from the ized violence triggered by conflict, rather than dis- Turkish military reportedly expelled Kurdish villagers and revenue, has led to a characterization of ANSA’s community and share political objectives. placement being a planned strategy by the belligerents, in the country’s South-East as a punishment for refusal behaviour as predominantly exploitative and preda- populations may spontaneously flee into the hands of to join the village guards (state-sponsored para- tory. In a 2012 policy briefing about the DRC, Oxfam In the Philippines, displacement has been cyclical and ANSAs in search of protection; or, having weighed up military civil-defense forces made up of local Kurds, describes how “communities have increasingly become chronic (taking place over short time periods and all the evils, conclude that protection by an ANSA armed and paid to fight the PKK on their own turf), or commodities of war, fought over by armed groups and distances), with people generally going back to their is preferable to either chaos or ‘protection’ by the on suspicion of supporting the PKK. While most by authorities seeking to control lucrative opportunities villages after a month or two in displacement. While government side. displacement has been caused by the Turkish army to extort their money and possessions”.34 While some civilians may have moved by themselves, the Moro and its security forces, including the village guards, Congolese or foreign ANSAs may refer to improving Islamic Liberation Front (MILF) have in some instances While ANSAs operating in Somalia have reportedly the PKK has also been directly responsible for significant civilian lives in their political speeches, the translation facilitated their movements. The MILF women’s wing deliberately caused displacement, the large-scale dis- internal displacement of Kurds by targeting village of these policies into action tends inexorably to result in particular has reportedly played a role in providing placement that took place in the country over 2007 guards and their families and local political figures.33 in a spiral of suffering and protracted and multiple warning to the population in advance of government and 2008 was not entirely the result of ANSAs’ actions. displacements that have eroded resilience and attacks and facilitating evacuations. This type of inten- Some two-thirds of the population of Mogadishu heightened vulnerabilities.

12 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 13 Part I ANSAs and the dynamics of displacement

Notwithstanding the range of factors that may weapons in camps, the risk of military recruitment, provide variable access to services including health emerged whereby the FARC and the National Liberation account for ANSAs’ behaviour ― notably the agenda the risk of diversion of aid, and the risk of sexual abuses. and education systems, police forces, and courts. It is Army (Ejército de Liberación Nacional, ELN) provide of the group, its internal structure, resources, and For example, the largest camp of Palestine refugees in quite rare for the ANSA to hold a monopoly of power. public goods such as roads and health centres. By relationships with the international system ― instances Lebanon, Ein el-Hilwe, is especially dangerous for filling the void left by the government and providing of particularly brutal abuses, such as ‘ethnic cleansing’ refugees because of the large number of weapons in In the case of the CAR, the presence of indigenous social services, the groups are often able to win the or reprisal attacks, are more commonly found when circulation in the camp and the presence of various ANSAs in the country is a result of decades of weak communities’ respect. If the ANSA benefits from displaced people (and local communities) are dealing Islamist militant groups engaging in internecine governance, impunity for human rights violations popular support, there is in turn little need for it to with a foreign ANSA or a group which is heavily reliant fighting. The greatest danger, however, is placing what committed by government forces, and a failed Disar- coerce the population. However if its authority is on foreign elements or on those of a differentethnicity. is intended to be a humanitarian and civilian space mament, Demobilization, and Reintegration (DDR) contested that authority tends to be maintained by This was the case during the series of conflicts in West into the heart of the conflict and the battlefield, process plagued by failings and corruption. These groups, coercion. Thus while at times citizens approve of the Africa, for instance with Charles Taylor’s National including by using camps as bases for armed attacks mainly composed of frustrated youth, operate in large ANSAs’ substitution of State functions, at others they Patriotic Forces of Liberia (NPFL) which brought and therefore at risk of being attacked in return. parts of the country where State authorities have no simply do not have any choice but to accept it.41 together individuals from different nationalities and Another camp of Palestine refugees in Lebanon, Nahr presence or only marginal visibility. Most ANSAs ethnicities, or more recently in Mali with the Movement el-Bared, was the scene of fighting between the are said to generally control people’s movements. Many insurgencies have taken over large territories for Unity and Jihad in West Africa (MUJAO), and Lebanese army and the Fatah al-Islam group in According to a UN official, “the State is not present for extended periods of time, set up elaborate Al-Qaeda in the Islamic Maghreb (AQIM). The lack of May 2007, causing its almost complete demolition because of rebel groups… rebel groups are present governance structures, and established extensive a ethnic bonds and cultural connections can be a barrier and the displacement of its 30,000 residents.36 because of the absence of the State. Some seek to quasi-governmental structures mirroring the apparatus for the displaced to negotiate with the group and seek profit, but many are there to protect the population”.39 of State institutions through which they rule the civilian improvement of their situation. In Darfur, displacement sites ― whether government- Similarly, foreign ANSAs such as the LRA have benefited population, derive support for their political authority, controlled urban centres, areas controlled by armed from the power-vacuum to establish a base in CAR. and achieve some form of legitimacy. Sri Lanka is Although the LRA committed countless abuses against factions, or camps on the Chad-Sudan border ― all an interesting case as the government continued to displaced Ugandan nationals (of the same Acholi showed signs of militarization. However the areas Filling a power gap is not in itself an indicator that provide certain public services such as education and tribe), some subtle but potentially relevant distinctions under Sudan Liberation Movement/Army-Minni ANSAs would adopt a protective role towards civilians health in LTTE-controlled territory; the LTTE moni- of behaviour can be observed from the moment the Minnawi (SLM/A-MM) control showed a lack of but equally it should not be assumed that groups tored these services while retaining exclusive control LRA moved out of Uganda and spread its presence distinction between civilian and military space, would be abusive towards them. In Somalia, both of other sectors such as the judiciary and defence. between Sudan, Central African Republic (CAR) and between policing and military functions, and a lack of the Islamic Courts Union (ICU) and even Al-Shabaab This strange scenario of complementarity enabled the DRC. While sexual violence is a constant feature of civilian infrastructure which indicated that the camps have to some extent filled a security vacuum and the Government of Sri Lanka to maintain some the LRA’s behaviour, when the bulk of the troops were were not so much militarized as under the military performed a governance role. The ICU provided edu- connection with the areas outside its control and still operating in Uganda it was framed as ‘forced control of an ANSA.37 cation and health care and their popular support relieved the Tigers of providing all public goods to the marriage’ (and called ‘sexual slavery’ by some UN extended beyond the borders among refugees who civilians. This shared control was maintained in the organizations and NGOs), a non-consensual act While the militarization of camps is problematic in itself, desired to return to a stable Somalia. After Ethiopia handling of the 2004 Indian Ocean tsunami crisis whereby a female abductee would become the wife the responses to address the militarization have also invaded Somalia and toppled the ICU, Al-Shabaab, when the LTTE’s Planning and Development Secretariat of an LRA soldier or commander. Aside from this, often been harmful to the displaced. For example, the although less popular than their predecessors, built worked with its government counterpart. there were very few accounts of ‘extra-marital’ rapes, alleged infiltration of the refugee camps in Kenya by on the legacy of the ICU by providing law and order and especially the gang rapes which are common in Al-Shabaab led to the withdrawal of many humanitarians with mobile shari’a courts to settle local disputes. Contrary to a commonly held view ANSAs may play other conflict contexts. Patterns of LRA sexual violence workers, who feared attacks on their staff in the camps, They also did infrastructure work that included the a protective role. Certain factors including shared shifted, however, once the war was exported from the imposition of a curfew by the Kenyan authorities, clearing of roadblocks, repairing roads, and organizing ethnicity, the shared experience of suffering, and a Uganda, with reports of systematic rape by LRA episodes of mass arrests and beatings of refugees by the markets. This, together with the nationalistic support common ideology may forge long-lasting and strong members.35 The pre-existing links with displaced police (in an attempt to catch Al-Shabaab fighters), and Al-Shabaab was able to count on while Ethiopian bonds between an ANSA and its (displaced) constitu- indigenous communities are, however, only one threats of deportation back to Somalia.38 forces remained inside Somalia, gave it some popular ency. Furthermore, the members of the ANSA may element of a more complex network of factors which support among the Somali population despite the come from the very communities and their family may explain shifts in the behaviour of the LRA. ii) Governance role abuses it perpetrated.40 members may still be there. Where there is no State presence in a territory or if The presence of ANSAs amongst the displaced or in State institutions are weak and no or few humanitarian The phenomenon of filling a power-vacuum is common In the context of the displacement of Burmese to their vicinity, whether in camps or other settings, organizations are involved, ANSAs are likely to fill the in border zones where State presence is often weaker, Thailand, in the absence of international organiza- (often referred to as ‘militarization’) can compromise power-vacuum. They may de facto be the alternative or, allowing ANSAs to assume governance functions in tions from the mid-1970s throughout the 1980s, their personal safety. This can be due to cumulative if some level of State presence remains, the additional the territories they control. In some of the rural areas ANSAs played a leading role in setting up informal factors including the circulation and potential use of providers of some form of safety and security and of Colombia a form of ‘shadow citizen security’ has settlements and in negotiating with the Thai authorities

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so that people would not be forced back into Burma/ run by Sahrawi doctors and nurses who trained in civilian demands frequently involve a variety of different the military role women may come to play contrary to Myanmar. They also actively supported the develop- Cuba or, more recently, in Spain. One of the character- and often competing perspectives”. As we have seen, the traditional culture. Another major factor is the ment of Refugee Committees and the creation of local istics of the Polisario Front has been to put forward in many contexts “groups do seek the support of the scale of sexual violence either committed by the group community-based organizations (CBOs), and were Sahrawi refugees as representatives and camp-managers civilian population in the territories they come to and/or by other military or civilian actors, itself the instrumental in liaising with missionaries and faith- thus feeding into the generally positive perception of control, establishing governance systems that provide result of factors such as the breakdown of social, based organizations to obtain additional assistance as the Sahrawi camps as model camps. At the same time collective goods in exchange for civilian consent to family and cultural safeguards, the loss of intimate the refugee population increased. While various factors the maintenance of its refugee constituency is essential rebel rule”.44 space especially in camp settings, as well as the more and influences ― especially of the Thai government for the Polisario Front to be able to continue to justify deliberate military intention to harm through sexual and the international community ― have contributed one of the world’s longest protracted conflict and It is clear that ANSAs may have a multi-layered and violence. While the hardship faced by displaced women to loosening the ties between the ANSAs and the displacement situations. at times protective and constructive role towards is recognized, in many contexts women have chosen to refugees, their shared ethnicity and the experience of displaced people. Different types of behaviour can be improve their social position during displacement by persecution in Burma/Myanmar has enabled the b) Other dimensions of the relations at play simultaneously; relations are complex and joining ANSAs. Their apparent motivations include to connection to persist. Talking about the displaced between ANSAs and displaced people nuanced and will be driven by important variables avoid poverty and the difficulty of living conditions in people, a leader of the KNPP stressed how they are such as the nature of the group itself and the influ- camps, in the hope of moving away from constraining “interrelated with the people and feel obligations and i) A reciprocal more than a unilateral relationship ence of other stakeholders. It may therefore be more traditional gender roles, to escape domestic violence responsibilities towards them”.42 The relationship between ANSAs and displaced useful to think of the relationships in broader terms of (expecting that the ANSA will provide protection), or communities is often portrayed as one-sided, with power dynamics which can take the form of mutual to learn how to use weapons to protect themselves. those bearing arms holding ultimate power over non- dependence and reciprocity having social, security, For others, there is no choice as they are forced into combatants. It is true that ANSAs may have much to and economic dimensions that often require continual association with ANSAs. gain from proximity to or control over a displaced adjustment and negotiation. population, for example by keeping some link with In Sri Lanka, the effect of displacement reportedly their support base or having the possibility of accessing ii) Gender and kinship dimensions created instability in young women’s lives and played human or material resources through the displaced While humanitarian situation reports tend to explain a significant role in encouraging them to regain control communities. Nevertheless the presence of the the infiltration of ANSAs in refugee or IDP camps as and a sense of empowerment by joining the LTTE, displaced can also be a burden or a disturbance for a military strategy to hide amongst civilians, ANSA with the group representing a form of alternative ANSAs. The movement of people or their presence members often use camps as a kind of ‘family strategy’ family unit. The LTTE succeeded in constructing a in a given place, as well as the intervention of other for collective survival. The fact that combatants and sustainable fictive kinship and fostered friendship stakeholders, is able to disrupt or pre-empt the non-combatants are related by kinship is a reality among women combatants who came from various military strategy of ANSAs but may not prevent the in many displacement contexts. For instance, in the socio-economic, religious, and caste backgrounds.46 School run by the Polisario Front in Smara refugee camp, Algeria. fighting. The impact on civilians is likely to be especially Philippines military operations frequently result in © Sahrawi Campaign to Ban Landmines (2013) severe in urban conflicts where the demarcation internal displacements, especially of families of MILF While the ability for women to move up the military or between civilians and combatants is voluntarily or members who constitute the majority of IDPs. Some political ladder can vary according to the group in ques- A mostly protective behaviour is also found in ‘States de facto blurred, on all sides. ANSAs can find them- ANSA members have deliberately taken their families tion, and some women do hold positions of command in exile’ situations. A long-standing example is that selves in a situation of de facto responsibility towards to displaced camps before joining the fight, with and authority, they would commonly find themselves of the Polisario Front or 'Sahrawi Arab Democratic the displaced while having limited means to provide the intention of protecting them. Once they are in dis- tied to combat or support roles. The gender equality Republic' (SADR) that has since the mid-1970s “asserted actual protection. In some parts of Syria in 2012-13 placement, however, the family links can be broken that is often an ideological precept put forward by some control over some 155,000 ‘refugee-citizens’ living the insurgents have had to handle the arrival of leaving family members vulnerable to abuses within groups has little resonance with what takes place in across four major camps through the development of displaced civilians in their area of control at the same camp settings. According to the Norwegian Refugee reality; possible exceptions include leftist ANSAs. its own constitution, camp-based police force (and time as they are pursuing combat and sustaining Council (NRC), in the DRC the FDLR’s dependents ― prisons), army, and parallel State and religious legal attacks by the army. families that travel with them, sometimes against Women also tend to be given no role or only a system”.43 The Polisario Front has found a balance their will ― are considered by all to be extremely marginal role during peace negotiations, and once the between promoting self-sufficiency and strategically In the words of Zachariah Mampilly, “an assumption vulnerable, challenging how the FDLR is perceived by disarmament of combatants is implemented they relying on external aid. It showed its commitment to of unconstrained agency of the rebel leadership does the general populace and the other armed groups.45 often find themselves excluded or sidelined from social welfare by creating a Ministry of Education, not hold in the face of actual evidence on the ground these processes, although this trend may be slowly Health and Social Affairs at the time the camps were that demonstrates that insurgent leaders are far The combination of a conflict situation and the experi- changing. This exclusion and marginalization has been established in 1976 and by establishing schools, more restricted in their actions”. He points out that ence of displacement shifts gender relations for reasons acknowledged by women members of ANSAs coming including a university in Tifariti. It also set up camp- “like governments, rebel leaders must negotiate with including the separation of family members, the deaths from a range of different conflict situations.47 The DDR based medical institutions that have primarily been civilians in exchange for their loyalty ― no easy task as of potentially large numbers of male combatants, and framework remains a gendered process where the

16 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 17 Part I ANSAs and the dynamics of displacement

focus is on disarming men.48 Many female ex-members iii) Displaced people’s self-protection strategies protection have also gradually been developing their a gradual or temporary process of distancing, as of ANSAs do not participate in or benefit from these Even if the population feels resentment towards an own systems of individual or collective self-protection, observed in the case of some Sahrawi refugees for programmes because they do not fit the classic ANSA which in their view bears some responsibility such as ‘home guards’, independently of the ANSAs. whom a durable solution to their displacement is ‘man with a gun’ profile and so are not identified as for their displacement or other abuses, or if they Their degree of autonomy from ANSAs may however improbable as long as the political impasse remains. combatants. Paradoxically, one of the reasons female more generally do not adhere to the group’s motiva- vary as home guards would often cooperate with One manner for the Sahrawi refugees to seek some fighters choose not to disarm is precisely because tions, in practice communities are likely to choose to the groups and call on their support, making local independence from the camp structure and the they would be identified as former fighters. They are avoid or engage with the group for pragmatic reasons protection efforts not unproblematic solutions to the Polisario Front ― as well as being a means to diversify thus left with the alternatives either of remaining in of self-preservation and survival. They may attempt to protection concerns of displaced civilian communities. livelihoods ― has been the departure of refugee the armed group or of self-demobilizing in the hope remain neutral to the extent possible in their acts and For instance, while displaced villagers emphasized the children to Spain for a few months and the longer- that, by quietly drifting back to their families or com- use of language to avoid harm. A second option utility of using landmines, they recognized the risk term migration of educated youth there, through the munities as other displaced people return to their involves being ready to flee at short notice, and a they create of people being killed or injured in planting, Spanish solidarity groups. In pursuit of some autonomy communities, they will alleviate the risk of social stigma third some form of accommodation with the group. stepping on or removing the mines.50 from the Polisario Front, some families have relocated and community exclusion or retaliation. Unlike male These patterns of behaviour can be found in Uganda to the fringes of the camps in Algeria or to the open combatants, they are often excluded from the new and in Colombia, for example.49 iv) An evolving or dynamic relationship desert of the eastern region of Western Sahara. The army and from new political structures and in many Factors intrinsic to the ANSAs and the displaced Polisario Front has, however, continuously asserted contexts are likely to be deprived of their land rights. In Burma/Myanmar, some people chose to accept communities with whom they interact play a key role its ‘authority’ over this region and intends to establish relocation to government-controlled areas or opted in shaping the relationship between these two a permanent settlement for the displaced in Tifariti So despite potentially having gained some valuable to move to areas under the control of ethnic armed constituencies. Yet these local relationships between identifying it as ‘SADR’s new capital’, thus reaffirming skills during their time with the group through the groups. This provided them with some protection ANSAs and the displaced are not static and will also be its intention to retain the displaced within their close variety of roles they may have performed, upon return from either the army or the armed groups, and in affected by macro-level dynamics, especially the larger control.51 they are likely to face economic hardship like other some cases enabled them to stay in or close to their evolution of the conflict and the related role and displaced civilian women. villages. As the military presence or the capacity of degree of involvement of other stakeholders (as will The other factors that would prompt changes in the

Funeral of a Karen General at a KNLA camp just across the Moie the ANSAs became depleted, displaced villagers who be seen in greater detail in Part III). relations between ASNAs and displaced civilians River, Burma/Myanmar. © John Hulme (2001) might have been expecting the groups to ensure their relate more directly to the evolution of the conflict Some ANSAs formed and disappeared over short time itself. Signs of approaching military defeat or on the periods (due to the rapid resolution of the conflict, or contrary the likelihood of the conflict moving towards the death of their leader(s), for example) but many a political or military victory for the group, or some insurgencies have been in existence for decades. The form of settlement with the other belligerent are reasons for this might be linked to the absence of especially likely to trigger changes in behaviour from a determining political or military outcome and the the ANSA or the displaced population. In Sri Lanka spread of ‘no peace no war’ situations where the ANSA through the 1980s-90s, the LTTE became a strong is likely to go through phases of intense fighting, popular movement with high levels of voluntary recuperation, and recruitment. Then variations in patterns recruitment recorded. As the resumption of the of displacement and shaping or shifting of the relations conflict became imminent in 2006-2007, after several between ANSAs and displaced communities also occur. relatively stable years of peace negotiations, violent As the conflict is prolonged increasing demands from scenes of forcible recruitment which flouted cultural and reliance on communities, combined with the practices engendered civilian mistrust and resent- heavy hardship faced by civilians in displacement con- ment towards the LTTE. A former humanitarian worker texts, can push the displaced to dissociate themselves reported that “the increased presence of aid organiza- from ANSAs. This is, however, not inevitable and some tions gradually discharged both the State and the ANSAs have identified sources of income in addition to ANSA from social and humanitarian responsibilities or as an alternative to the taxation of populations; this that they would have had towards civilians”. The LTTE has for instance been the case for the FARC through ultimately prevented civilians who were still with drug-trafficking. them at the stage of the final battle with the army from leaving, using them ― unsuccessfully ― as ‘human When links between displaced communities and shields’. This former humanitarian worker described ANSAs have been close and a complete or definitive the final bloody battle as at best a “collective suicide” separation is not sought, the displaced may opt for by the LTTE, and at worst a “mass sacrifice”.52

18 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 19 Part II Legal and normative framework

International law imposes obligations primarily on by several States which are parties to non-international civilians may not be forcibly displaced for political iii) Return of displaced persons States. However, since the adoption of the Geneva armed conflicts. reasons. One example put forward as a legitimate The ICRC Customary Study finds that displaced persons Conventions of 1949 more and more legal obligations exception is clearing a combat zone for essential mili- have a right to voluntarily return in safety as soon as have been extended to ANSAs, and further normative Prior to 1977, there was no specific reference to dis- tary operations. Other examples and conditions may the reason for displacement ceases to exist. While improvements in the protection of civilians have placement in the law of NIAC. Common Article 3 to be derived by analogy to rules governing displacement APII is silent on the issue, an implied right to return also addressed their conduct, including in relation to the Geneva Conventions of 1949, however, contains under the law of international armed conflict as well under conventional law has been suggested.60 This displacement. prohibitions providing fundamental protections to as other areas of IHL where imperative military neces- right implies the obligation for ANSAs to at the least all persons not participating in conflict ― including sity exceptions are expressly permitted. An example is not obstruct, and possibly to actively facilitate, The first section of this part gives an overview of the displaced persons who fit such criteria ― from acts to prevent the presence of civilians from blocking lines the return process. Suggested facilitation measures international legal and normative framework related such as violence to life and person, torture and other of communication and disorganizing transport, while include mine clearance, provision of basic needs, agri- to displacement in situations where ANSAs operate, ill treatment, hostage-taking, and summary punish- conditions put forward include: where no feasible cultural equipment, rehabilitation of schools, skills i.e. during armed conflict and otherwise. It looks at ment. It has also been noted that forced displacement alternative exists to gain the same military advantage; training, etc. Facilitation, as with treatment above, the extent to which each legal and normative regime could in fact amount to a violation of one of the harm must not be excessive to the military advantage; would also depend on the means and capacity of the imposes obligations on ANSAs and, where relevant, expressed prohibitions of Common Article 3.55 displacement must be temporary; the decision must ANSA, particularly where facilitation is interpreted as gives some insight into how the regimes provide for be taken by a commander of a certain rank; and advance provision of services normally provided by State protection from displacement, the rights of the i) Explicit protection from displacement warning should be given where circumstances permit. authorities.61 In the event of unlawful displacement, displaced, and their rights to or upon return. The second IHL prohibits the parties to a NIAC from ordering the ensuring return would be part of the remedial process section assesses some of the gaps and challenges displacement of civilian populations unless the security The protection of civilian populations from being necessary to bring an end to the violation. of the existing framework. It also identifies the emer- of civilians is involved or imperative military reasons compelled by ANSAs to leave their own country gence of new opportunities to strengthen ANSAs’ so demand (see Box 1). Interpretations of this prohibition for reasons related to the conflict is not clearly b) Human rights framework compliance with their obligations. have downplayed the significance of the requirement established under customary international law. In Human rights law (HRL) covers a comprehensive set that displacement be ordered, suggesting that the term conflicts governed by APII, civilians are protected of rights of persons irrespective of whether they are 1] Legal and normative framework for ANSAs’ should be interpreted to include any deliberate action from forced deportation without exception. However, displaced or not.62 Further substantive elements of compliance: scope and limitations which results in forced displacement.56 Voluntary Rule 129 in the ICRC study on Customary IHL (the ICRC human rights relevant to displacement are addressed movement of civilian populations, on the other hand, Customary Study) does not differentiate between in the displacement law and norms sub-section below a) International humanitarian law is not prohibited by IHL, although voluntariness in forced displacement and deportation.58 Therefore, it too. HRL has been built on the general premise that International humanitarian law (IHL) creates obligations circumstances of armed conflict is often difficult to seems that, at least in the ICRC interpretation, the two States are the custodians of individual human rights. for both State and non-State parties to armed conflict. determine. exceptions discussed above remain as legitimate Human rights bodies have at times highlighted that While the law of international armed conflict governs grounds for deportation in NIACs not governed by APII. only States have human rights obligations; non- conflicts between States, the law of non-international The exception for the security of civilian populations compliance by ANSAs is often referred to as “abuses” armed conflicts (NIAC) governs situations in which is self-evident in that it would be inconsistent with the ii) Protection and treatment of displaced persons while similar actions by States would be qualified as ANSAs are in conflict with governments and/or other purpose of IHL if its rules resulted in greater suffering IHL mandates that all feasible measures must be taken “violations”. This interpretation has been increasingly ANSAs.53 A NIAC may take place exclusively on the for civilians. It goes without saying that this exception, to ensure that displaced populations are treated challenged by legal commentators who argue that it is territory of one state, or as many commentators now like all of IHL, must be implemented in good faith.57 under satisfactory conditions of shelter, hygiene, ineffective simply to rely on a State’s duty to protect agree, may be transnational.54 The main sources of health, safety, and nutrition. The ICRC Customary human rights from the actions of non-State actors, the law of NIACs relevant to displacement and ANSAs The exception for imperative military reasons is Study adds the obligation that members of the same and that ASNAs also have human rights obligations, are Common Article 3 to the Geneva Conventions, potentially more problematic. Generally, a balance family not be separated, and indicates that the needs particularly when they control territory. its Additional Protocol II (APII), and customary between IHL and military necessity is already built of particularly vulnerable persons must be taken into IHL. into IHL, leaving no room to justify contrary conduct. account.59 The reference to feasible measures may This approach has at times been followed by the UN This difficult balancing act recognizes that if the rules indicate that de facto ANSAs are likely to be held to a Security Council (UNSC) and other UN bodies and In all cases the existence of an armed conflict is an of IHL put too many limitations on the ability of lower standard than States as they are likely to have Special Rapporteurs who have been explicitly calling objective determination which has generally been warring parties to conduct warfare they will not be less means and capacity. In addition, IDPs who do not upon ANSAs to respect human rights. For instance, interpreted to require: i) a certain degree of organization respected. In a few specific instances ― such as forced take part in hostilities are granted the same protec- the combined report of nine Special Rapporteurs and of the ANSA and ii) protracted hostilities, “protracted” displacement ― IHL allows for additional considera- tion as all civilians under IHL. For example, they are Representatives on the situation in Gaza concluded having been interpreted to also mean of a certain tions of imperative military necessity. The parameters afforded fundamental guarantees and are protected with respect to Hamas that: “non-State actors that intensity. While the Geneva Conventions are universally of imperative military necessity are somewhat elusive: from attack. The law of NIAC does not extend protec- exercise government-like functions and control over a ratified and customary IHL applies to all State and the exception should only occur in minimal circum- tion to persons who are displaced across borders territory are obliged to respect human rights norms non-State parties to conflict, APII has not been ratified stances, the determination should be “meticulous” and unless the conflict is also taking place in such areas. when their conduct affects the human rights of the

20 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 21 Part II Legal and normative framework

individuals under their control”.63 However others d) Displacement law and norms (refugees and IDPs) situations where a non-State entity takes on the displacement are enumerated and go beyond the express concern that imposing international HRL obli- The refugee regime is inherently based on a state- responsibilities of the State in all or in part ofthe exceptions of forced displacement under IHL, including gations on ANSAs will detract from States’ obligations centric model wherein international conventional State’s territory. In such situations, UNHCR has been by covering situations of displacement caused to respect, protect, and provide for human rights. mechanisms create no obligations on ANSAs. There reluctant to accept non-State entities as protectors by violence which may not amount to an armed Human Rights Watch (HRW) offered a compromise is no clear consensus whether the principle of but has not categorically ruled out that possibility, conflict.75 The enumerated categories have common between these two opposing views in the context of non-refoulement ― which precludes the transfer of calling for the careful examination of the durability of provisions but each also contains distinct prohibi- Western Sahara by arguing that while “Algeria remains persons by one State to another if they face a risk of the situation and the ability of the controlling entity to tions. The Kampala Convention explicitly prohibits ultimately responsible…the Polisario [Front] needs to violations of certain fundamental rights there ― is provide protection and stability.72 displacement caused by generalized violence and be accountable for how it treats the people under its also applicable to ANSAs. Some lawyers take the view violations of human rights, while the GPID prohibit administration”.64 that non-refoulement is limited to States as made For the internal displacement regime, there are no displacement caused by large scale development explicit in Article 33 (1) of the 1951 Refugee Conven- international conventions on IDPs. The African Union projects. The GPID also require that authorities c) International criminal law tion.66 Others extend the protection of refugees from Convention for the Protection and Assistance of explore all feasible alternatives to displacement. The International criminal law (ICL) ― unlike most of the forced repatriation to their country of origin to ANSAs Internally Displaced Persons in Africa (the Kampala IHL exceptions for displacement for the security other legal regimes discussed ― addresses the and call for the principle to be binding upon all parties Convention) is a unique treaty in the way it addresses of civilians and imperative military reasons are men- responsibility of the individual rather than that of to the conflict.67 No such provision seems to apply ANSAs. Armed groups are defined distinctly as “dissident tioned in both documents but are only listed under the entity (i.e. State or ANSAs). That said, individual internally where an ANSA controls territory, in terms armed forces or other organized armed groups that are the ‘Obligations of States Parties relating to Protection members of ANSAs are subject to criminal liability for of an obligation not to send back a person to territory distinct from the armed forces of the state”, while non- from Internal Displacement’ in the Kampala Conven- war crimes, crimes against humanity, and genocide. controlled by another ANSA or the State; thus inter- State actors are defined as “other private actors whose tion.76 In the GPID, only the State has a particular Crimes are established through conventional and nally displaced people are not protected from forced acts cannot be attributed to the State”.73 However its obligation to protect against displacement of persons customary law, but a court must have jurisdiction over return.68 wording seems ambivalent in terms of whether it with special dependency on or attachment to their both the crimes and the individual in order to carry creates direct obligations on ANSAs, although the land’.77 out proceedings. International crimes (arguably of Under the 1951 Convention, grounds for refugee primary responsibility for providing protection and both State and ANSAs in situations of armed conflict) status are limited to a person who “owing to a well- humanitarian assistance rests with States Parties. ii) Protection and treatment of displaced persons can be tried in domestic courts, through ad hoc inter- founded fear of being persecuted for reasons of race, The Kampala Convention does not explicitly create national or quasi-international tribunals, or through religion, nationality, membership of a particular social The 1998 UN Guiding Principles on Internal Displacement positive obligations applicable to ANSAs. It only lists the International Criminal Court (ICC). group or political opinion, is outside the country of his (GPID) are not legally binding but rather both purport actions that ANSAs are prohibited from doing. The nationality and is unable or, owing to such fear, is to restate existing norms and seek to clarify grey areas GPID take a different approach, in some circumstanc- Under the Rome Statue of the ICC, forced displacement unwilling to avail himself of the protection of that and fill in the gaps. Authority of the GPID is further es at least. For example, “the authorities concerned may amount to a crime against humanity or a war country”.69 The flight from conflict per se is therefore enhanced through recognition in the World Summit, shall ensure that such persons, in particular displaced crime (see Box 1). Crimes against humanity may take not a recognized ground. In Africa and in Central the UN General Assembly and the Inter-Agency Standing children, receive education which shall be free and place in the context of armed conflict or outside America there is an enlarged refugee definition which Committee (IASC). The GPID constitute a milestone in compulsory at the primary level.”78 In both instruments, it, but in all cases must be part of a widespread would encompass flight caused by conflict or general- normative development as they “identify the rights displaced children must not be recruited, required, or systematic attack on a civilian population.65 Perpe- ized violence.70 In 1995, “acknowledging the fact that and guarantees relevant to the protection of IDPs in or permitted to take part in hostilities under any trators throughout the chain of command may be serious violations of human rights and threats to all phases of displacement to be observed by all circumstances.79 Sexual violence perpetrated by criminally liable. While there is no specific interna- life, liberty and security of person that constitute authorities, groups, and persons irrespective of their ANSAs or their members is addressed more compre- tional criminal provision addressing the treatment persecution are not perpetrated solely by agents of legal status.”74 As with the Kampala Convention, the hensively in the GPID, as the Kampala Convention of forcibly displaced persons, general provisions the State or with the State’s complicity”, UNHCR primary responsibility to provide protection and only prohibits sexual slavery and trafficking but not regarding treatment of civilians or persons no longer adopted a position paper on the ‘agent of persecution’ humanitarian assistance to IDPs rests with national sexual violence in general.80 On the other hand, the participating in hostilities do apply. Preventing return which includes ANSAs.71 In refugee law, the essential authorities and IDPs have the right to request and Kampala Convention does prohibit members of armed is not a crime per se. element is the absence of national protection rather receive protection and humanitarian assistance only groups from infiltrating places where IDPs are shel- than the source of persecution or the type of persecutor. from national authorities, i.e. that right does not tered. The GPID state that IDPs shall particularly be The war crime of forced displacement differs from extend to protection and assistance from ANSAs. protected from the use of anti-personnel landmines. the IHL provision in that the security and necessity The issue of who may provide protection, and in This standard goes beyond the IHL obligations of exceptions apply both to internal displacement and particular whether refugees can be expected to avail i) Explicit protection from displacement ANSAs. While the GPID mention the prevention of deportations. It is unclear as to what extent the crime themselves of the protection of a non-State entity, Both the Kampala Convention (in its reference to arbitrary arrest or detention, the Kampala Convention against humanity maintains the distinction. raises controversy. Under refugee law, there is a clear members of armed groups) and the GPID prohibit only has a reference to arbitrary detention which expectation that protection must be primarily provided arbitrary displacement. The notion of arbitrariness is is limited to States. Furthermore the Kampala by the State and its organs. There are however not defined as such, but prohibited categories of Convention, unlike the GPID, makes no reference to

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internment or confinement of IDPs in camps.81 Both approach towards improving compliance by all these forcible displacement itself and there are only a few ever, abide by this commitment in the final stages of the GPID and the Kampala Convention address the groups with the law, encompassing actions that range references to the need to respect and protect the the conflict. In a 2010 standing order, the MILF stated question of documentation and identity documents, from engagement to enforcement”.89 All three subse- rights of the displaced, their freedom of movement that“[i]nternally displaced persons shall be protected something which is absent from IHL treaty law and quent reports (2010, 2011 and 2012) have included and the provision of humanitarian assistance. For against discriminatory practices of recruitment into only marginally explicitly addressed in human rights provisions applicable to “enhancing compliance by instance, as part of the 2004 N’Djamena Humanitarian the [Bangsomoro Islamic Armed Forces] BIAF or other instruments.82 While the GPID mention that the non-State armed groups” as one of five core challenges, Ceasefire Agreement between the Government of the groups as a result of their displacement”.98 The pre- “authorities concerned” shall issue such documents, citing the need for consistent engagement with ANSAs Republic of Sudan, the Justice and Equality Movement vention of military recruitment of IDPs in such an thus not excluding that these may be provided by to seek improved compliance with international (JEM) and the Sudan Liberation Movement/Army internal regulation goes beyond legal or normative ANSAs, the Kampala Convention clearly identifies this humanitarian and human rights law. The reports high- (SLM/SLA), “[t]he parties undertake to facilitate the standards. as an obligation for States Parties.83 light the impact the lack of compliance by ANSAs has delivery of humanitarian assistance and the creation in terms of causing displacement, increasing its scale, of conditions favourable to supplying emergency relief iii) Right to return and preventing assistance from reaching IDPs. In the to the displaced persons and other civilian victims”.93 The Kampala Convention creates obligations relating 2012 report the UNSG emphasized that displacement to sustainable return, local integration, relocation, and should not be “accepted too readily as an inevitable The bulk of the commitments are concerned with the provision of effective remedies only for States.84 It consequence of conflict”, that “short of preventing issues of return and reintegration. These are often does however prohibit members of armed groups conflict, more must be done to prevent the circum- focused on the need to restore the socio-political and from restricting the movement of IDPs, which could stances that lead to displacement”, and that “parties economic links between the displaced and their area be construed as a prohibition on impeding return.85 to conflict must refrain from the use of forced of origin, including through the provision of identity Under the GPID, displacement shall last no longer displacement as a deliberate tactic”.90 There is not, cards, the restitution and rehabilitation of land and than the circumstances require. IDPs are also protected however, a widespread emphasis on displacement. property rights, and other compensation mechanisms from being forcibly returned if their life, safety, liberty, for the losses suffered. For example, in the 2006 or health would be at risk. Positive obligations relating f) ANSAs’ humanitarian commitments agreement between the Communist Party of Nepal to return are restricted to “competent” authorities While greater attention (and recognition) is now given (Maoist) (CPN (M)) and the Nepalese government, while access for humanitarian actors vis-à-vis return to the commitments made by the ANSAs themselves, “both sides express commitment to allow without any General Order 1 of the MILF, Philippines. shall be granted by “all authorities concerned”.86 no consensus has yet been reached over whether political prejudice the people displaced during the @ Geneva Call Neither the GPID nor its commentary provide any this creates legally binding obligations for them. armed conflict to return voluntarily to their respective clarity on the distinction between these terms. The Commitments can be unilateral; they can be part of places of ancestral or former residence, to reconstruct existing framework does not address whether ANSAs peace agreements between one or more ANSAs and the infrastructure destroyed as a result of the conflict who control territory have an obligation to refrain the government, or be part of agreements with States and to honourably rehabilitate and reintegrate the from sending back a person to territory controlled by or with humanitarian organizations. Common Article displaced people into the society … and express their another ANSA or the State.87 3(4) provides that “[t]he Parties to the conflict should commitments to respect the right of individuals and further endeavour to bring into force, by means of families displaced during the conflict to return to their The 2005 UN Principles on Housing and Property special agreements, all or part of the other provisions original places of residence or to settle in any other Restitution for Refugees and Displaced Persons of the present Convention”. places of their choice”.94 (known as the Pinheiro Principles), which articulate the right of refugees and displaced persons to repossess A review of 44 commitments made by ANSAs related A smaller number of unilateral declarations by ANSAs property lost as the result of armed conflict, adopt to displacement conducted as part of this study shows as well as their internal rules and regulations express a more state-centric approach and make no direct that the bulk of these commitments are included in their intention to comply with the existing legal and reference to the role and obligations of ANSAs.88 agreements concluded between ANSAs and States.91 normative framework related to displacement. An A second common feature is that reference is made example is the statement of the JEM and Sudan e) Protection of civilians to both IDPs and refugees, at times referring to the Liberation Movement-Unity (SLM-Unity)95 which reaf- Since 1999 the UN Secretary-General (UNSG) has precise definitions of each term, at other times with- firmed in 2008 their commitment to “refrain from … prepared regular reports with recommendations for out an explicit distinction between the two categories forcibly displacing civilian populations. …and to curtail how the UNSC could improve the physical and legal and using the more generic term “displaced people”, or the militarization of IDP/ refugee camps”.96 In 1998 protection of civilians in situations of armed conflict. terms specific to the context like “uprooted populations” the LTTE made a commitment in relation to return, The UNSG’s 2009 report highlighted the direct corre- (Guatemala) and “dispersed persons” (Burundi).92 While that “the movement of displaced populations who lation between ANSAs and the protection of civilians, the different phases of displacement tend to be men- wanted to return to areas now under government “urging for the development of a comprehensive tioned, there is limited reference to the prohibition of control would not be impeded”.97 They did not, how-

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Box 1: Legal and normative provisions addressing ANSAs

1] INTERNATIONAL HUMANITARIAN LAW 3] INTERNAL DISPLACEMENT LAWS AND NORMS

• Additional Protocol II to the Geneva Conventions (1977)1 • The Kampala Convention (2009)4

Article 17 ― Prohibition of forced movement of civilians Article 7 ― Protection and Assistance to Internally Displaced Persons in Situations of Armed Conflict

1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the 1. The provisions of this Article shall not, in any way whatsoever, be construed as affording legal status or security of the civilians involved or imperative military reasons so demand. Should such displacements have to be legitimizing or recognizing armed groups and are without prejudice to the individual criminal responsibility carried out, all possible measures shall be taken in order that the civilian population may be received under of the members of such groups under domestic or international criminal law. satisfactory conditions of shelter, hygiene, health, safety and nutrition. 2. Nothing in this Convention shall be invoked for the purpose of affecting the sovereignty of a State 2. Civilians shall not be compelled to leave their own territory for reasons connected with the conflict. or the responsibility of the Government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.

• Customary international humanitarian law2 3. The protection and assistance to internally displaced persons under this Article shall be governed by international law and in particular international humanitarian law. rule 129 Parties to a non-international armed conflict may not order the displacement of the civilian population, in whole 4. Members of Armed groups shall be held criminally responsible for their acts which violate the rights or in part, for reasons related to the conflict, unless the security of the civilians or imperative military reasons so of internally displaced persons under international law and national law. demand. 5. Members of armed groups shall be prohibited from: rule 131 a. Carrying out arbitrary displacement; In case of displacement, all possible measures must be taken in order that the civilians concerned are received b. Hampering the provision of protection and assistance to internally displaced persons under any under satisfactory conditions of shelter, hygiene, health, safety and nutrition and that members of the same family circumstances; are not separated. c. Denying internally displaced persons the right to live in satisfactory conditions of dignity, security, sanitation, food, water, health and shelter; and separating members of the same family; rule 132 d. Restricting the freedom of movement of internally displaced persons within and outside their areas Displaced persons have a right to voluntary return in safety to their homes or places of habitual residence as soon of residence; as the reasons for their displacement cease to exist. e. Recruiting children or requiring or permitting them to take part in hostilities under any circumstances; f. Forcibly recruiting persons, kidnapping, abduction or hostage taking, engaging in sexual slavery rule 133 and trafficking in persons especially women and children; The property rights of displaced persons must be respected. g. Impeding humanitarian assistance and passage of all relief consignments, equipment and personnel to internally displaced persons 2] INTERNATIONAL CRIMINAL LAW h. Attacking or otherwise harming humanitarian personnel and resources or other materials deployed for the assistance or benefit of internally displaced persons and shall not destroy, confiscate or divert such materials; and • 3 International Criminal Court Rome Statute i. Violating the civilian and humanitarian character of the places where internally displaced persons are sheltered and shall not infiltrate such violations. War Crime: Article 8(2) (e)(viii) Ordering the displacement of the civilian population for reasons related to the armed conflict, unless the security of the civilians involved or imperative military reasons so demand’ constitutes a war crime in non-international • The Guiding Principles on Internal Displacement (1998)5 armed conflicts. The entire GPID is to be observed by “all authorities, groups and persons irrespective of their legal status and applied Crime Against Humanity: Article 7(1)(d)&(2)(d) without any adverse distinction”(Principle 2.1). The principles of the GPID generally refer to the 'authorities con- The following constitutes a crime against humanity when committed as part of a widespread or systematic attack cerned', the 'competent' or the 'responsible authorities' except for the following, which qualify specific authorities directed against any civilian population, with knowledge of the attack: addressed: 'National authorities' (Principles 3 and 25.1); States' (Principle 9); 'State authority empowered by law' Deportation or forcible transfer of population ― meaning forced displacement of the persons concerned by (Principle 7.3 (a)); 'Legal authorities' (Principle 7.3 (e); 'Appropriate judicial authorities' (Principle 7.3 (f); 'Competent expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted authorities' (Principles 18.2, 28 and 29.2). under international law.

1 . . law-i-icrc-eng.pdf>. of the Convention can be downloaded at . ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf>.

26 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 27 Part II Legal and normative framework

Box 2: Scenarios of displacement and legal pathways Scenario 2: Intended lawful displacement

These scenarios are based on several legal and These scenarios do not necessarily solve inherent TRAJECTORY normative frameworks: IHL, ICL, HRL, and internal dis- dilemmas: placement laws and norms. They provide a visual The population displaced is likely to remain in areas under the general control of the ANSA (especially if the State’s violence is the cause of violations and displacement). Some people • summary of the legal pathway and displacement The difficulty of interpreting the prohibition to may spontaneously move to State-controlled areas (if fighting is less intense and assuming trajectory: displace ‘for reasons related to the conflict’ with its they won’t be persecuted by the State) or to another State. two exceptions whereby displacement is lawful 1. Displacement; and justified by reasons “related to the security of displacement 2. Treatment; civilians or because the imperative military reasons 3. Return. so demand”. The displacement would be considered lawful as the displacement is • In some instances the difficulty of ascertaining who demanded by the security of the civilians involved or by imperative or what triggers displacement and of determining military reasons. when the agency of the displaced comes into play. RETURN treatment

Neither the ANSA nor the State may During the displacement phase, the obstruct the safe return of the displaced ANSA would have some responsibility Scenario 1: Intended unlawful displacement once the hostilities have ceased. The for the treatment of civilians and their ANSA would have some responsibility protection from violence and violations in facilitating the safe return of the of IHL or human rights in the territory TRAJECTORY displaced. under its control.

Scenario of mass displacement with the bulk of the population moving away from the area where the ANSA operates.

Scenario 3 (a & b): Unintended lawful displacement displacement TRAJECTORY The displacement can take the form of direct physical displacement (expul- sion of civilians from their habitual place of residence) and/or other human The trajectory of displacement will depend on the circumstances and on the capacity of civilians to move. rights/IHL violations which will lead to their displacement. For State-triggered displacement, people might be pushed to areas under the control of the ANSA unless The displacement is unlawful as people are intentionally displaced by the the State’s policy is to move people to areas under their control. Other people may flee to another State. ANSA for reasons related to the conflict and not justified by reasons related to the security of civilians nor by imperative military reasons. displacement

RETURN treatment People are not deliberately displaced by the ANSA and the ANSA is not interfering with the displacement (e.g. by obstructing it or pushing people towards the combat zones). In this scenario, displacement is either: a) caused by the State (lawful or unlawful action); The ANSA has no clear and explicit responsi- The ANSA would be responsible for the or b) occurs spontaneously as a by-product of the conflict (such as natural disasters). In bility towards facilitating the safe return of treatment of civilians and their protection both cases, the ANSA will not be responsible for the displacement. If the State caused the displaced. However responsibility is from violence and violations of IHL or human the displacement, it would be responsible for violations unless displacement is lawful (for implied as part of the responsibility to rights in the territory under its control. As the security of the civilians involved or for imperative military reasons). ensure displacement does not last longer the perpetrator of displacement and if they than required. continue to cause harm, members of the Under the internal displacement frame- ANSA could also be held criminally liable. The RETURN treatment work, their obligations are limited to not State (with the assistance of the international community if needed) would be responsible restricting the movement of IDPs and ensur- As in scenario 2, the ANSA would have some for the protection and treatment of the ing that displacement shall last no longer The ANSA would be expected to facilitate responsibility during the displacement displaced. than the circumstances require. safe return once possible. phase for the treatment and protection of civilians in the territory under its control.

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Scenario 4: Unintended unlawful displacement could include mine-clearance, restoration of essential remit of States usually do so on the following grounds: services, aid to meet urgent needs (shelter, food, i) it ignores the reality of failing or failed states which TRAJECTORY water, medical care), the provision of construction effectively do not control portions of their territory, tools, household items, farm implements and seeds, and States that are unable and/or unwilling to protect The trajectory of the population may initially be similar to scenario 3 as the possibility the repair of schools, health care facilities and their citizens and refugees; ii) it leaves abuses by of greater cross-border displacement as displacement becomes protracted. markets, occupational training programmes and ANSAs largely unaddressed because of the limited allowing visits prior to return.” Although some of capacity of national jurisdictions, the risk of bias in displacement these gaps have been filled by the GPID, the ICRC them, and the limited scope of IHL and ICL; and iii) it notes their ‘non-binding’ nature.99 does not take into account that some armed groups The ANSA bears responsibility ― at least under the arbitrariness standard used in displace- have the capacity to provide some protection to ment law and normative instruments (GPID, Kampala Convention) ― as even though people Refugee law does not impose direct obligations on civilians and ensure that their human rights are are not deliberately displaced, the ANSA’s actions (e.g. threat of food deprivation, violations 101 of human rights) may not be justified by the security of the civilians involved or imperative ANSAs. Furthermore, on the territory of a (supposedly respected. military reasons. non-belligerent) country of asylum, ANSAs are assumed not to control any part of the population iii) Lack of efficacy and, if they act in contravention of refugee or human The militarization of sites of displacement and the RETURN treatment rights law standards, it is the host State that is account- targeting of these sites through military means able. This assumption does not reflect situations that present ongoing acute challenges. The civilian and The ANSA would be expected to facilitate As in scenarios 2 and 3, the ANSA would can be found on the ground; there is therefore a gap humanitarian character of displacement sites may be safe return once possible. Preventing the have some responsibility during the dis- timely return in conditions of safety of the placement phase for the treatment and pro- in refugee law not addressing this. Another gap which blurred by the presence of persons who periodically displaced once the circumstances permit tection of civilians violations in the territory remains unaddressed relates to the lack of consensus participate in hostilities. Under IHL, IDP camps are would render the displacement unlawful. under its control. on whether the principle of non-refoulement also protected as civilian objects so long as they are not applies to ANSAs. used for military purposes, and persons are protected during times in which they do not participate in ii) Lack of clarity and consistency hostilities ― such as when present in a displacement It is difficult for lawyers ― let alone ANSAs ―to camp. However there is a growing consensus that 2] Challenges and opportunities in IHL, the positive obligations of ANSAs in particular navigate their way through the international legal and those who fight regularly will be deemed to have a to strengthen ANSAs’ compliance are less robust than those of States. normative framework. The GPID have been a signifi- continuous combat function, lose their right tobe cant improvement in terms of providing a consolidated treated as non-combatants, and may be targeted at The legal and normative framework on displacement is ICRC has identified specific gaps in IHL that should set of guidance based on existing standards, but any time.102 The infiltration of displacement camps or both complex and still evolving. The development of be addressed through the development of law if ambiguity remains in terms of the qualification of their use as temporary sanctuaries may in fact bring new laws and norms provides greater clarity in relation adequate protection for IDPs is to be achieved. ICRC “authorities” for certain obligations. Normative IHR the fighting to displacement camps, despite the to ANSAs. However some gaps and inconsistencies highlights that “[i]nternational humanitarian law does bodies especially have been inconsistent in their obligations on parties to the conflict to take feasible persist. And the potential to enhance the protection of not contain a general right to “freedom of movement” characterization of the realm of actions by ANSAs, measures to avoid locating military objectives the displaced in practice will only materialize by grasp- as the prohibition on forced displacement set down in creating a grey area in the definition of the nature of (i.e. fighters) in densely populated areas such as ing the impact these laws and norms have on ANSAs’ Article 17 of Protocol II additional to the Geneva the violations and the level of obligations of ANSAs. displacement camps.103 Under refugee law, civilians in own understanding of their obligations. Conventions concentrates on the right not to be Analysis of UNSC Resolutions also highlights discrep- a host country who have been displaced from a locality compelled without justification to leave one�s place of ancies in their coverage of displacement and protection controlled by ANSAs should never take a direct part in a) Legal and normative challenges residence or one's country. It does not contain a right of civilians. There is, for example, little reference to hostilities; if they do, they lose their civilian status and to leave one's place of residence or to move to another these issues in UNSC Resolutions on Somalia despite are to be considered as combatants.104 This strict i) Gaps in coverage part of the country, and yet that right is essential to large scale displacement both inside and outside the interpretation contrasts with the lack of normative There are some gaps in each of the legal regimes allow people to flee combat zones. Furthermore, country, while Colombia and Turkey that both have clarity over the civilian character of camps in internal above in respect of their applicability to ANSAs in there are no provisions guaranteeing the right to freely massive conflict displacement have not even been conflicts. ICRC has highlighted the need to “set out displacement contexts. First and foremost, the enter and leave camps or other restricted areas.” ICRC on the UNSC’s agenda.100 Furthermore, its resolutions more specific rules or standards to safeguard the civilian obligations of ANSAs are only partially addressed. also points out that “there is no mention of a positive have made hardly any reference to the GPID or to the character of IDP camps”.105 Second, IHL does not cover all circumstances of duty on the part of the parties to conflict to take all Kampala Convention. displacement even though displacement is likely to be feasible measures to facilitate voluntary, dignified and As far as the criminalization of displacement is significant, recurrent, and persistent in situations of safe return. Depending on the circumstances and the Those who challenge the dominant conceptualization concerned, while in principle the ICL framework has internal disturbance or post-conflict. Third, apart from capacities of the parties to the conflict, such measures of human rights as still falling exclusively under the the potential to address impunity for the crime of

30 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 31 Part II Legal and normative framework

displacement perpetrated by ANSAs, “many interna- b) Opportunities into peace negotiations and agreements for the In conclusion, the reference to such commitments in tional courts and domestic legal systems have purpose of finding sustainable solutions to the the 2009 UNSG’s report on the protection of civilians concentrated only on the violations … that prompt i) Increased attention of norms to ANSAs problem of internal displacement”. By extension, this and their recent documentation by UN bodies seem displacement, instead of also addressing the abuse of The development of norms which also address ANSAs provision would also be relevant to ANSAs who are to move in the direction of giving some formal if not forced migration itself”, even when it is clear that and the simultaneous reference to the different bodies parties to these agreements and would not preclude legal recognition to ANSAs’ commitments. Further- “displacement is integral to the conduct of a conflict”.106 of law applicable to all parties to conflict is a positive them taking the initiative for including such provisions more, while it does not change the legal status of Indeed, while a number of individuals ― leaders or development which confirms the objective of putting in agreements. ANSAs, it does allow them to be potential protectors members of ANSAs ― have been charged for crimes the protection of civilians at the forefront of the inter- and increases their accountability towards civilians, Training organized by Geneva Call with the MILF on the Deed against displaced civilians, to date no-one has yet national agenda. In UNSC Resolution 1894, marking of Commitment banning anti-personnel mines. including displaced people. been convicted for the crime of displacement per se the tenth anniversary of the consideration by the © Geneva Call (2012) by the ICC or by a Special Court or by national UNSC of the protection of civilians as a thematic issue, jurisdictions. The ICC has, however, confirmed charges the Council proposed a distinction between “respect against two prominent Kenyan politicians and one for human rights” for which “States bear the primary journalist for the crime of deportation or forcible responsibility” and the “protection of civilians” for transfer of population under the Rome Statute.107 which “parties to armed conflict bear the primary Colombia, which incorporated the crime of forced responsibility”.110 This language ― which has been displacement into domestic legislation in 2000, has a repeated in other UNSC thematic resolutions such poor record of convictions overall and those convicted as Resolution 2106 on sexual violence in armed have to date only been members of paramilitary conflict ― is significant in that the UNSC recognizes groups. With thousands of investigations for the crime ANSAs as having obligations to protect, although the of collective forced displacement of communities in extent to which this may extend beyond IHL is unclear. progress, however, members of ANSAs are likely to be It is worth recalling that notwithstanding “the extension prosecuted there in the future.108 of human rights obligations to actors other than the territorial State does not necessarily displace or dilute Although the agenda for criminal accountability is the State’s responsibility under human rights law. The now stronger and international judicial institutions responsibility of different actors for violations of are beginning to hold some of the perpetrators of human rights law is not mutually exclusive but can be crimes ― including ANSAs ― to account, there is as complementary”.111 yet no clear evidence that they have so far prevented the commission of crimes. Human rights and humani- ii) Greater accountability through monitoring tarian actors have mixed views when it comes to of ANSAs’ commitments assessing whether the threat of prosecution has the Irrespective of the legal worth attributed to commit- potential to deter displacement and other abuses ments made by ANSAs, their systematic compilation from occurring. For instance in the case of Uganda (when these exist in a written form) and their subse- some have argued that the ICC warrants against LRA quent analysis can provide a basis for monitoring commanders in 2005 contributed to bringing the LRA compliance and holding ANSAs accountable. Especially to the negotiating table and helped push along the relevant is to assess whether ANSAs’ policies fall short peace negotiations. Others hold the opposite opinion, of or exceed IHL or other normative standards on dis- that the LRA retaliated against civilians following the placement. The adoption of policies going beyond IHL indictment, and claim that the threat of prosecution and other normative standards could represent an was an obstacle to the eventual signing of a peace opportunity to encourage ANSAs to adopt progressive agreement. This punitive approach only concerns very protection policies that could in turn contribute to few countries and individuals and does not provide improving the normative framework. civilians with guarantees of protection from retaliatory actions. While research on the deterrent effect of In that regard the Kampala Convention may offer an the ICC is emerging,109 the global deterrence effect opportunity: Article 3(2) (e) requests States (although remains to be seen; it is unlikely to have much impact not explicitly ANSAs) to “endeavour to incorporate in the short- to medium-term. the relevant principles contained in this Convention

32 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 33 Part III Engagement with ANSAs in displacement contexts: operational and policy implications

The relations between ANSAs and displaced populations the government had, however, drastically changed by economic policies towards Palestinians; these policies cially in contexts such as the DRC where the vast are influenced by the dynamics of the political and 2006 when the conflict flared up again: international aimed to control the refugee camps and the activities majority of IDPs are living in host communities and humanitarian context that ANSAs operate within. organizations lost the liberty to engage with the LTTE of the ANSAs. However the army’s attempts to control where repeated displacement means that those who Mainstream analysis focuses on the impact of the on the protection of the displaced and the government the Palestinian movement in the country met internal have been hosted may well themselves become hosts presence and actions of ANSAs on civilians and exerted control over access to the displaced population and external pressures, leading the Lebanese authorities to new IDPs.117 Tensions with local communities are humanitarian actors and there are fewer insights and over the type of activities humanitarians were to in effect accept the Palestine Liberation Organiza- more frequent in refugee contexts. For instance, if on the actual or potential influence other key stake- allowed to undertake. Towards the end of the conflict, tion (PLO) establishing autonomous or self-governing social services such as health and education are holders have over ANSAs and on their actions. the government treated most civilians who had been institutions in the camps and urban areas populated provided to refugees but not available for surrounding living in the LTTE-controlled areas as LTTE members in by the Palestinians.113 With the departure of the PLO villagers or as donor support for refugee populations The first section describes the main actors that can disguise or collaborators. from Lebanon after the Israeli invasion in 1982, many decreases over time, competition with host population interact with both ANSAs and displaced people and of the Palestinians trapped in camps became vulnerable over scarce resources can become a source of hostility the level and nature of these interactions. The second In refugee contexts, the relationship between host to the violence of militiamen and the so-called ‘war of and insecurity.118 section then assesses and discusses the challenges States and ANSAs can be more ambivalent and closely the camps’ led to the destruction of several Palestinian and opportunities for engagement with ANSAs. linked to the bilateral relations between the country camps.114 The relations between ANSAs and host communities of origin of the refugees and the country of refuge. In remain relatively unexplored. The attitude of local 1] The interface with ANSAs many conflicts, ANSAs move to another country, thus Other States have more explicitly adopted partisan communities towards the displaced and vis-à-vis in displacement environments finding a form of sanctuary (like civilians) from state views towards ANSAs. The Algerian government has ANSAs may be aligned with the national policy or violence against them. Such a safe haven becomes gone beyond what is expected of host States by diverge from it. In the Middle East, host communities Both ANSAs and displaced people have interactions politically sensitive for the host States if attacks are letting the Polisario Front ‘govern’ its refugee popula- have often exhibited a welcoming attitude towards with a wide variety of local and international actors. launched from their territory on the State of origin. A tions on its soil and by recognizing the protective refugees, especially at the inception of a crisis, and number of host States have allowed ANSAs to be on responsibility of the ANSA towards the displaced.115 this has been repeated again in the context of the a) Concerned and host States their territory and may have sympathized (even if not Syrian refugee crisis. However, the prolongation of Of all the stakeholders, concerned and host States publicly) with the political cause of the ANSAs. Some Even greater challenges arise when ANSAs are allowed the conflict combined with rising numbers of people are likely to be the ones with the greatest potential States have been adroit in allowing in the displaced to conduct military operations from the host State seeking refuge, in places outnumbering local residents influence over the relationships between ANSAs and and representatives of the ANSAs while preserving and/or when the State provides military support to as in Lebanon, has led analysts to refer to an ‘uneasy’ displaced communities. However, scope for positive the relationship with the State of origin. An illustra- ANSAs and the presence of large displaced popula- or ‘uncertain’ welcome in view of ambivalent community influence is limited or non-existent if state policies are tion is the attitude of the Thai government which let tions in border areas can contribute to a regionalization responses.119 characterized by hostility towards the ANSAs and the both Burmese civilians displaced and ANSAs’ repre- of the conflict. In the late 1990s the then president of displaced, especially if the latter are perceived as sup- sentatives into Thailand. Thailand, however, has not Liberia, Charles Taylor, demonstrated his strong ties Refugees, especially in the context of mass displace- porting the insurgency. This is particularly true for ratified the 1951 Refugee Convention and is therefore with the RUF by sending troops into Sierra Leone to ment, are often described as a security threat as they internal displacement as, if States themselves are not granting refugee status to the displaced, thus not reinforce the RUF while allowing refugee camps in may bring the conflict with them across the border. By violating civilians’ rights, they are most unlikely to explicitly recognizing the persecution of civilians by Liberia to potentially be used as bases for military the same token, if an ANSA operates near to or within have the will (or the credibility) to ensure that ANSAs the Burmese State and military. Furthermore, the operations and recruitments. an area hosting displaced people, this often negatively respect their obligations under international law. policy of tolerance applied by the Thai government affects relations between the displaced and the hosts towards both the displaced and the ANSAs in the b) Host communities because of the real or assumed links the displaced But States can also be seen to protect displaced civilians early days has been gradually eroded in order to Relations between displaced people and host com- have with the armed group. In May 2013, Syrian by designing strategies that address the causes of preserve the relationship with Burma/Myanmar and munities can range from situations where host commu- refugees became the target of local angry crowds displacement or remedy its impact in line with their allow for the development of bilateral economic ties. nities provide sanctuary and support to the displaced following a double car blast at the Turkish border human rights and IHL obligations. The process of to host communities rejecting their presence and town of Reyhanli, an area through which arms and men peace negotiation is often conducive for parties to The relations between the Palestine refugees and showing hostility towards them.116 Diverse and cumula- were reportedly flowing to bolster Syrian insurgents.120 address displacement issues, although whether this Lebanon have to a large extent been framed by the tive factors of a political, ethnic, cultural or economic materializes in practice is dependent on the trajectory role of ANSAs in the context of regional political nature and pre-existing affinities which are likely to In some contexts foreign ANSAs overtly violate or of the negotiations and whether peace accords dynamics with the Palestine-Israel conflict at its core. trigger acceptance or at least tolerance can also result ignore social and cultural community norms and seek are implemented. For instance, the term ‘internal From 1948 to 1958 State authorities and Lebanese pop- in fluctuating inter-relationships. This scenario is more to forcefully impose theirs; in others they have chosen displacement’ was used in Sri Lanka in 1990, before ulation welcomed Palestinians with whom ‘pre-exile’ common around borders where transnational links to integrate in local tribal structures, especially if they it became internationally recognized, when the gov- economic and social ties existed. The next decade, already exist. Displaced people and host communities have expansionist ambitions. For example, rather ernment formally asked UNHCR to provide assistance 1958-1969, was marked by the establishment of official are often exposed to similar immediate threats to than supplanting Yemeni tribal structures, Al-Qaeda to IDPs on both sides of the conflict.112 The attitude of camps and exclusionary official social, political and their physical security by the State and ANSAs, espe- in the Arabian Peninsula (AQAP) has managed to

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collaborate with and integrate itself into them, strate- actors are immobilized, and can improve communica- the establishment of ‘zones of peace’ is discussed course of a conflict, including by controlling and gically capitalizing on the tribes’ distrust of and hostility tion and relationships by fostering interaction across with the belligerents, religious leaders, community ordering displacement ‘at a distance’ or more com- towards the State.121 conflict divides”.126 Among CSOs, religious structures organizations, farmers, and children and youth. With monly through their financial and political roles. can play a significant role in influencing ANSAs. In the a few minor exceptions, these zones of peace ― c) Local civil society DRC, for instance, a delegation of the ‘Justice and where armed personnel can enter the zones but are There are a number of examples spread across time Civil society organizations (CSOs) engage with ANSAs Peace’ network of the Catholic Church approached required to respect communities and are not permitted and geographical locations where ANSAs have been in a multiplicity of ways.122 They may have been instru- the M-23 in Rutshuru to confront them about human to conduct military operations or to use their weapons formed by individuals in exile; an archetypal case mental in the creation of the ANSAs in situations rights issues and concerns of the populations.127 ― have been respected by all parties to the conflict. might be the foundation of the Fatah movement where armed struggles were initiated following civil- Because men in these communities are often viewed by members of the Palestinian diaspora. In some ian contestation movements. In Libya, the so-called with suspicion by the belligerents, women have report- instances individuals may hold the dual identity of ‘February 17 Youth Movement’ (LYM) claimed to have edly played a critical role in ensuring the success of member of the diaspora and leader of an ANSA and about one hundred CSOs under its umbrella, in addition these initiatives by leading negotiations and maintaining are said to have been coordinating military opera- to having considerable student backing. Registered as the relations with all parties.129 Similar models exist in tions, including population displacement, remotely. an NGO on Facebook and highlighting that they “do eastern DRC with initiatives such as community-based This has reportedly been the case for the FDLR, whose not belong to a political party, nor to any factions”, the ‘protection committees’, ‘women’s forums’ and outreach top leadership used computers and mobile phones in LYM has been an active player in the insurgency.123 workers (agents du changement) that guide State and Germany and France to control operations in the DRC ANSAs to fulfil their protection obligations towards through an organized hierarchy of military officers CSOs are also increasingly acknowledged as key communities through training sessions and informa- and men on the ground.132 actors in humanitarian or development work and for tion exchange. The protection committees have, for promoting peace-building efforts due to their more instance, successfully negotiated that some armed Analysis of the Tamil diaspora illustrates the multiple intimate understanding of the conflict dynamics and groups stop collecting taxes from the communities.130 roles its widespread members have played especially their often closer proximity to the belligerents and APRAN-SDP and Geneva Call facilitating negotiations between in terms of speaking for the LTTE cause, financing the affected populations. In some contexts this may MFDC and Senegalese government on humanitarian demining. While CSOs may be praised for their role in promoting conflict, and supporting displaced communities. During confer on them potential leverage. If they have © Geneva Call (2013) the rights of displaced people and fostering dialogue the many years of conflict and protracted displace- pre-existing links with the ANSA, local organizations with belligerents, their links or affiliation with ANSAs ment in Sri Lanka, the diaspora played a critical role in may more easily play a bridging or intermediary Many Burmese CSOs, based along the Thai-Burma can be potentially problematic and dangerous, and providing IDPs with remittances, but as the conflict role between ANSAs and civilians, including displaced border were actually created by ANSAs and kept close many CSOs have concerns about the risk they face of evolved the LTTE exercised increasing control both people, as well as other stakeholders such as interna- ties with them. Over time these links have, however, being closed down or criminalized for that affiliation. over the IDPs in Sri Lanka and over the diaspora. From tional organizations. For instance, in areas of the DRC loosened and most organizations that were reportedly Local organizations in many geographical contexts the 1980s LTTE loyalists were sent abroad or identified where displaced people and villagers are still at affiliated with the ANSAs now claim to have full opera- appear to have been significantly affected by the locally and, through the setting up of LTTE offices risk of attacks by the LRA, the Centre Résolution tional freedom. Yet not all ties have vanished either spread of the label of ‘terrorist’ in recent years. which initially had a cultural and educational focus, Conflits (CRC) has set-up ‘Task Forces’, comprising and the loyalty of these organizations towards the Margaret Sekaggya, the UN Special Rapporteur for they infiltrated the diaspora which gradually increased former fighters, community leaders, army officers groups persists as many of their representatives and human rights defenders, has said she was “concerned its funding and political support. The LTTE also con- and business people through which to reach LRA members remain political activists. On the other hand by the branding and stigmatization of human rights trolled linkages between the diaspora and the civilian members.124 Another example is that of the Association these CSOs reveal that through them ANSAs have defenders [in India], who are labelled as ‘naxalites population.133 It set up an elaborate international pour la promotion rurale de l’arrondissement de retained a link with the displaced civilians and are (Maoists)’, ‘terrorists’, ‘militants’, ‘insurgents’ or ‘anti- fundraising system collecting large amounts of funds Nyassia, Solidarité ― Développement ― Paix (APRAN- able to monitor their attitudes and behaviours. nationalists’”.131 used for the procurement and shipment of arms and SDP), a Senegalese NGO originally created by IDPs to finance their ‘state-like’ administration, but also which has been supporting the return of IDPs and In Mindanao, in areas of fighting between the Govern- d) Diasporas goods for communities. Until it was banned in Sri Lanka refugees. It has long served as an intermediary with ment of the Philippines and the MILF, local organiza- In recent years, both scholars and humanitarian actors in 2007 and its branches in the US, Australia and the the Movement of Democratic Forces of Casamance tions have engaged in protecting IDPs through a range have considered the significant transnational role of UK closed down, the LTTE-affiliated Tamil Rehabilitation (Mouvement des Forces Démocratiques de Casamance, of activities including early warning mechanisms, diasporas in conflict situations. Diasporas have dual Organization (TRO) received a lot of support from MFDC) and helped international NGOs like Geneva facilitating IDPs’ safe and organized return, and and often ambivalent roles; they are depicted as ordinary Tamils across the world. The Sri Lankan Call engage with the MFDC in the process of banning advocating with parties to the conflict to restore playing both a significant role in sustaining a rebellion Sinhala diaspora also played a significant role during the use of anti-personnel mines.125 peace and investigate security incidents involving (thus potentially contributing to displacement) yet the conflict, especially in attempting to counteract the displaced people.128 Some of the most successful ini- also contributing to providing vital support to dis- propaganda of the Tamil diaspora by putting the For the West Africa Network for Peacebuilding (WANEP) tiatives are community-based. One example of such placed communities, especially in the form of remit- emphasis on the “terrorist” nature of the LTTE. Later, “CSOs can act when, for a variety of reasons, official an endeavour is in Pikit in Central Mindanao, where tances. Diasporas may have an influence over the while remittances still reached the communities,

36 | Geneva Call | Annual Report 2012 Geneva Call | Research on armed non‐State actors and displacement in armed conflict | 37 Part III Engagement with ANSAs in displacement contexts: operational and policy implications

increasingly larger proportions were taken as tax by and urban settings. It has also been documented, with or support to the designated group (Hamas), and official interlocutor for State and non-State actors; the LTTE as the need to fund the military efforts however, that Al-Shabaab has access to remittance only secondly to respond to humanitarian needs”.138 one such example was the creation by UNHCR, during increased after 2005. flows generated from the trading centres led by the ceasefire period around 2004- 2005, of a Liaison Somalis, such as Eastleigh in Kenya, to fund its opera- At the other extreme, States have on occasion adopted Officer in Sri Lanka which enabled more systematic tions in Somalia and enlist new members through lenient policies towards ANSAs by offering them engagement with the LTTE, including regular field indoctrination in Islamic schools.135 blanket amnesties during peace processes or in post- monitoring and specific interventions, advocacy, and conflict settings. While this may have in some instances promotion around the protection of IDPs and the pro- The positive contribution of diaspora involvement in had a positive effect towards reconciliation and motion of safe return using the GPID as a- frame humanitarian response, especially through remittances, encouraging the return of the displaced, it can ignore work.140 The UNHCR review states that while as “a has led to donor support for diasporic organizations the need to address impunity. matter of principle UNHCR should engage all ANSAs involved in humanitarian initiatives addressing the where necessary and if possible … as this is consistent needs of displaced populations.136 ii) The United Nations with humanitarian doctrine, but also reflective of the It is difficult to state clearly what the UN does in prac- realities associated with providing assistance and pro- e) The international community tice in relation to engagement with ANSAs, beyond tection in complex environments where populations efforts towards developing an approach to engage- of concern are often located in areas outside state i) Third-party States ment, as it is either not well documented or informa- control”, in practice “there is no universal UNHCR policy Third-party States have the monopoly of deciding tion is not openly shared beyond each agency. There on how to engage ANSAs”.141 In Thailand for instance, which ANSAs they want to engage with, when is no institutional approach on whether the Emergency UNHCR’s practice of establishing (or not) relations and how. State practices and policies on so-called Relief Coordinator (ERC) should engage with ANSAs, with the political wings of Burmese ANSAs has been ‘diplomatic engagement’ with ANSAs are therefore although the UNSG's reports on the protection of contingent on the Country Representatives and their extremely variable. Some States have put themselves civilians state that ANSAs should be engaged, and UN perception of the tolerance (or the lack of it) of the forward to engage ANSAs on displacement-related General Assembly Resolution 46/182 gave the ERC Thai authorities for engagement. This has led to some issues. Within a context of broader peace negotiations the responsibility to “actively facilitate, including confusion for the ANSAs, displaced people and NGOs, Norway has, for instance, discussed issues pertaining through negotiations if needed, the access by opera- especially local organizations who are commonly to the rights of displaced people, including their tional organizations to emergency areas…by obtaining manoeuvring between ANSAs and the displaced. return, with the LTTE, the FARC and Burmese ANSAs.137 consent of all parties concerned”. While the Cluster approach has attempted to provide a more structured Among other UN humanitarian agencies, UNICEF has While some States may see their involvement as driven multi-agency response to humanitarian and displace- had some engagement with ANSAs to demobilize by humanitarian needs and by respect of the principles ment crises, there is no UN-specific framework for children and to prevent their recruitment. OCHA has of humanitarian action in IHL, third-party State engage- engagement with ANSAs on displacement issues. At a played a proactive role in highlighting, in the UNSG’s ments with ANSAs are often driven by States’ own inter- global level the role of the UN Special Rapporteur on reports on the protection of civilians, the need to ests and are therefore often inconstant. the Human Rights of IDPs is generally political in engage with ANSAs and to translate these policies to nature and focused on dialogue with governments; the operational level. States’ increasing labelling of ANSAs as “terrorists” the role was not given explicit authority to establish and counter-terrorism policies introduced in the wake direct contacts with ANSAs, leaving limited space for The UN Office of the High Commissioner for Human of the 9/11 attacks on the USA in 2001 has added engagement. That said, right from the start Francis Deng, Rights (OHCHR) is gradually starting to refer to ANSAs Tamil demonstration at Trafalgar Square in London. complexity to the relations States and regional organ- the first incumbent, madeefforts to sensitize ANSAs to in its publications and analysis and is acknowledging © Nicholas Van Hear (2009) izations can have with ANSAs. It also had related the need to assure greater protection for IDPs, a prac- the evolving policies of the UN. For instance in its consequences on humanitarian organizations and aid tice that has been pursued by his successors.139 2011 report ‘International Legal Protection of Human The role of diasporas goes beyond the caricatured beneficiaries, especially displaced civilians living in Rights in Armed Conflict’ OHCHR noted the “evolving perceptions of agents ‘funding terrorism or building areas controlled by ANSAs designated as terrorists. Each UN agency is able in principle to decide the practice in the Security Council and the reports peace’ and the tendency to frame the discussion in A ‘study of the impact of donor counter-terrorism modalities of engagement (or non-engagement) with of some special rapporteurs that … under certain a dichotomous way ― asking whether diasporas are measures on principled humanitarian action’ commis- ANSAs based on its own agenda. Some UN agencies circumstances non-State actors can also be bound by good or bad for conflict ― is problematic.134 In the sioned by the UN Office for the Coordination of have at times played an intermediary role between international human rights law and can assume, Somali displacement context, the assistance provided Humanitarian Affairs (OCHA) and NRC makes the point belligerents, often including as objectives ensuring voluntarily or not, obligations to respect, protect and by Somalis abroad ― through emergency aid, care that for instance “in Gaza, the parameters of humani- safe humanitarian access and protection concerns. A fulfil human rights”.142 In practical terms, however, and maintenance and sustainable development aid ― tarian action have for the most part been shifted so 2012 UNHCR review of its engagement with ANSAs OHCHR remains structured around State practice with represents crucial support for the displaced in camps that programmes are designated firstly to avoid contact highlighted how the organization has served as an the exception of the designation of a focal point on

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ANSAs whose role is to advise field offices in contexts While issues related to displacement are arguably ANSAs on broader humanitarian norms, including on the Government of Sri Lanka and the LTTE, the Danish where ANSAs operate. The organization is also devel- central to peace processes, these have often only mar- norms relating to displacement. In 2011 Geneva Call Refugee Council (DRC) conducted sensitization sessions oping an internal position on ANSAs.143 ginally been included in the substance of the engage- co-organized with IDMC a two-day conference on focused on displacement with the members of the ment of peace-mediation and negotiation organizations ANSAs and the protection of IDPs and wrote an article political wing of the LTTE as well as its police force.149 At country level, the choices and approaches of the with ANSAs, although this is slowly changing.144 An on the potential for engagement with ANSAs that was NRC-IDMC has also conducted a number of workshops Humanitarian Coordinator as well as the nature of the organization like the Centre forHumanitarian Dialogue published in a special edition of FMR on ‘Armed non- on IDP protection using the GPID as a framework. The humanitarian crisis will affect some of these institu- (HDC), through its ‘mediation’ work, attempts to State actors and displacement’.147 workshops run by NRC-IDMC involved members of the tional choices and frame the extent and nature of the address key humanitarian issues, including displace- Rassemblement Congolais pour la Démocratie (RCD- engagement with ANSAs. If it is a context where there ment, with the parties to conflict.145 For instance Organizations working specifically on protecting and Goma) in the DRC, the Forces Nouvelles in Côte d’Ivoire, is an integrated mission, some of these decisions between 2008 and 2009 the organization brought assisting displaced people are rarely explicit about and the Somaliland authorities. While members of these about engagement will be taken in part or in full by together representatives of the main Darfur opposition how and to what extent they engage with ANSAs, and ANSAs showed an interest in abiding by international the representative of the peacekeeping mission. movements and representatives of the humanitarian remain elusive about the outcomes of these interac- norms, reportedly no ANSA was willing to make firm community for discussions focused on key humanitarian tions. A positive exception is UNHCR’s 2012 review of commitments on IDP protection.150 In conclusion, while the absence of a UN doctrine for issues including the protection of refugees and IDPs. the organization’s history of engagement with ANSAs engagement may have enabled flexibility and comple- over the previous three decades and across a wide Notwithstanding such attempts, there is no systematic mentarity, it is also worth noting that the UN is made ICRC’s mandate entails a proactive interaction with range of contexts.148 Some organizations worry that outreach to ANSAs on the rights of displaced people up of Member States and derives its mandate from the belligerents, both State and non-State, to ensure engaging on protection activities may bring them in and engagement is irregular, unsustained, inconsistent, those Member States, some of whom may not wish and monitor their respect of IHL. conflict with governments or ANSAs, place staff at and at times incoherent, often based on a combina- for the UN to en gage with ANSAs. risk, and reduce their access to displaced people and tion of factors which may range from organizational few invest in the capacities required for effective policy choices, country or conflict contexts, the type iii) International organizations engagement, like training and guidance for field staff. of ANSA but also programmatic choices or even the There is a wide range of international organizations personal approaches of heads of offices. and institutions that are engaging (directly or indirectly) Among the factors deterring humanitarian organizations with ANSAs in displacement contexts, in very different from engaging with ANSAs is the fact that they do not 2] Challenges, limitations, and opportunities albeit potentially complementary ways. consider that engagement is core to their mission, or to engage ANSAs on the protection that they are afraid of jeopardizing their assistance of displaced people The monitoring of ANSAs by leading human rights work by being perceived by concerned governments organizations such as HRW and Amnesty International of conferring legitimacy to ANSAs. In some contexts There are political, practical, and ethical motives to was limited until the 1990s, when they extended their Guaviare state, San José del Guaviare. An ICRC delegate speaks they would seek to respect the principle of State explain the lack of engagement of humanitarian definition of human rights abuses to include acts with members of the FARC-EP during a dissemination session on responsibility and would not see ANSAs as the repre- actors with ANSAs. While aggressive or threatening committed by ANSAs. This approach has led to the IHL. © ICRC/B. Mosquera (2010) sentatives of the people. Yet, interaction is still likely behaviour by ANSAs can act as deterrents, other sig- global practice of ‘naming and shaming’ whereby to take place for pragmatic reasons as the militarized nificant impediments to engagement in conflict and these organizations issue public statements and reports The engagement can take different forms and includes contexts in which humanitarian actors operate almost large scale displacement contexts relate to the prevail- about human rights abuses and make recommenda- dissemination of IHL and confidential dialogue on pro- inevitably imply close proximity to ANSAs or the ing influence of States that prevent humanitarian tions to all parties, including increasingly to ANSAs. tection issues. Despite having a strategy on internal mingling of ANSAs with displaced populations. actors from engaging with ANSAs or deter their access Both organizations produce regular reports which displacement,146 ICRC’s focus is on the protection of to displaced populations in areas controlled by ANSAs. emphasize the violations of the rights of the dis- civilians more broadly and the organization does not When it comes to the substance of engagement, for a However, there are also opportunities for inclusive placed. While HRW’s mandate is to protect the human appear to engage ANSAs specifically on displacement large majority of humanitarian organizations, if engage- approaches towards ANSAs. rights of people around the world by investigating and in a systematic manner. ment with ANSAs does take place it generally focuses exposing human rights violations, and holding (State on ensuring humanitarian access and on preserving the a) Impact of restrictive State policies or non-State) abusers accountable, the interaction it The Swiss-based organization Geneva Call was set up humanitarian and civilian character of camps. Humani- and counter-terrorism measures has with ANSAs has included advocacy for the respect expressly to entice ANSAs to comply with various tarian access constitutes the most logical entry point of Engagement with ANSAs is often perceived by States for human rights. HRW has sought to obtain commit- humanitarian norms through an innovative accounta- engagement for humanitarian actors, and once access as politically sensitive, in particular triggering concerns ments from ANSAs on IHL issues, for example in Yemen bility mechanism called Deed of Commitment. is secured further opportunities to engage ANSAs of legitimizing ANSAs ― despite clear legal basis, in (on the Geneva Conventions) and in Libya (on land- Geneva Call engages ANSAs principally on the total on civilian protection and human rights may arise. A particular Common Article 3 to the Geneva Conventions, mines). However this still appears like anad hoc prac- ban of anti‐personnel mines, the protection of children number of international NGOs have on occasion con- and policies that humanitarian engagement is neutral tice with no systematic follow-up and the engagement from the effects of armed conflict, and the prohibition ducted sensitization and training sessions with ANSAs. and impartial in character and does not affect the has not been focused on displacement issues. of sexual violence in armed conflict. It also trains In 2004 and 2005, during the ceasefire period between legal status of armed groups.

40 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 41 Part III Engagement with ANSAs in displacement contexts: operational and policy implications

In reaction, some host governments have compelled interactions built around ANSAs’ responsibilities Recently Islamist ANSAs such as Al-Shabaab have even let an ANSA manage camps, the Polisario Front humanitarian organizations to operate only in govern- towards civilians. This hinders more nuanced and been framing most humanitarian intervention as a in Algeria being one example. ment-controlled or designated areas or have banned even positive behaviours that ANSAs may exhibit. manifestation of foreign policy. The HPG research access altogether. A UNHCR review of key challenges to shows that in the Afghan context especially ANSAs’ Humanitarian organizations continue to be challenged the safeguarding of humanitarian space reports that Despite policy recommendations that “lives can be hostility towards the UN is linked to the perceived by the risk of amalgamation between the military governments in Colombia and Afghanistan viewed saved by engaging armed groups in order to seek com- partiality of the UN. There is more diversity in positions space where they would locate ANSAs and the humanitarian engagement with ANSAs as the equivalent pliance with IHL in their combat operations and general toward other aid actors there, although often hostility humanitarian character of spaces of refuge whose of endowing 'terrorists' with legitimacy and were there- conduct”,154 in practice the effect of working in environ- and suspicion predominate. Aid agencies with the civilian nature needs to be preserved. While displace- fore extremely unwilling to allow such engagement.151 ments where ANSAs are perceived as hostile and greatest access had consistently demonstrated their ment sites are intended to provide refuge from dangerous is that some organizations opt for a strategy neutrality and impartiality over a period of time, conflict, they are however not apolitical and displaced The development of counter-terrorism measures by of avoidance rather than engagement. For NRC, the while positive perceptions of agencies often reflected people have the right to freedom of opinion and host governments or donor States, has compromised complexity of some of these dynamics as experienced personal experiences and engagement. association and should be allowed to establish- self further the space for engagement, by criminalizing in Afghanistan and Somalia, as well as what they governance systems. Instead of systematically denying dialogue with ANSAs designated as 'terrorist'. UN perceive as a misinterpretation of the humanitarian c) Militarization of displacement sites ANSAs a presence in displacement sites, “active agencies have had to follow these prescriptions, as principle of neutrality, has gradually led some actors to Conflicts are by their nature politicized and militarized military groups are often not separate from the has been the case with Hamas in Gaza since 2006. avoid contact with any type of military (including and in such environments displacement sites, which community but an integral part of it and as such can Such policies have had similar consequences for inter- ANSAs) even in contexts where it would be feasible. Yet aspire to offer sanctuary, are both a civilian space be key agents of protection and transformation”.161 national NGOs. as pointed out by Liam Mahony, “a commitment to where daily life unfolds for families and also a space the ‘humanity’ principle demands a commitment to which is penetrated by the political and military It is also almost always assumed that the displaced There are other circumstances where host govern- preventive protection, not just services after abuse … dimension of the conflict, from within and through themselves or ANSAs are responsible for the militari- ments do not necessarily oppose engagement but it and taking on the challenges of reducing conflict and external interventions. zation of displaced sites, while governments rarely is the organizations themselves that opt for non- changing the behaviour of abusers”.155 Recent research acknowledge their own involvement in the militari- engagement with ANSAs to avoid aggravating or jeop- by the Humanitarian Policy Group (HPG) on ‘Humani- This de facto interplay between the civilian and the zation. Yet violence and persecution by government ardizing difficult relationships with the State. Some tarian Dialogue with Armed Non-State Actors’ found military jeopardizes the civilian character of camps agents, or perpetrated by ANSAs but tolerated by a donors in their funding agreements have also imposed that “many agencies avoided direct structured engage- and other displacement sites. Episodes of heavy mili- government, can lead refugees and IDPs to arm them- no-contact conditions with ANSAs listed as 'terrorist', ment ... for fear of political, security consequences of tarization of camps, especially in West and East Africa selves, not for offensive purposes but for self-defence. limiting who NGOs and UN agencies can interact with engagement”.156 So while many humanitarian actors in the 1990s, have led humanitarian organizations, if they accept funding. would define attempts to engage as essential, especially with UNHCR at the forefront, to develop operational Finally, although an increasing number of conflicts in contexts where there are strong communal connec- policies that define what constitutes ‘militarization’ take place in urban environments and although over Such restrictive policies and the increased use of tions between ANSAs and the displaced, it appears that and ensure the applicability of the civilian and human- half of the world’s displaced people are thought counter-terrorism measures have proved detrimental on the ground there is still a lack of engagement. itarian character of asylum.158 These policies, intended to live in urban areas, existing policies around militari- to the protection of displaced populations. For to prevent the emergence or proliferation of ‘refugee zation are all related to camp-based displacement. instance, according to WANEP “humanitarian access It is equally important to understand what ANSAs warriors’, emphasize that refugees need to “abstain This is a significant gap. in the rebel-controlled north of Mali was curtailed make of the behaviour of the international community from any activity likely to detract from the exclusively by counter-terrorism policies, despite a growing as this will have an impact on the possibilities for civilian and humanitarian character of the camps and d) Tools for engaging ANSAs on protection number of internally displaced persons and growing engagement and most likely also have repercussions settlements”.159 Successful operationalization of this of displaced people humanitarian need”.152 And after 2008, when the on the protection of civilians. In fact the reluctance to principle as it was conceived has, however, been the There are some tools that have been developed United States listed Al-Shabaab as a “terrorist” group, engage also comes from ANSAs, a number of which exception rather than the rule.160 to engage various stakeholders on the protection of an 88% decrease in aid to Somalia was recorded have responded negatively to attempts at engage- displaced people, and similarly tools have been between 2008 and 2010.153 ment by humanitarian organizations, especially when Although UNHCR can find itself ‘running’ camps in developed to engage with ANSAs on humanitarian they see a strong bias or politicization of these actors. many instances (most often through implementing issues more broadly. However, there is no tool or b) Restricted engagement or avoidance This is particularly the case for ‘integrated missions’, partners), it is the host State that has primary respon- framework specifically aimed at ANSAs’ engagement of engagement which contribute to blurring humanitarian objectives sibility. UNHCR can assist the State in the task of on displacement. In conflict and displacement contexts, interactions with political and military agendas, thereby compro- preserving the humanitarian character of camps but with ANSAs are almost by default conceived as prob- mizing the perception of aid agencies as neutral in the the State may restrict its ability to intervene in the One of the most significant efforts to provide a much lematic. ANSAs are systematically blamed for their eyes of armed opposition groups. Ultimately this can location of camps for instance, or may have a relaxed needed structured approach to humanitarian negoti- interference with displaced communities, leaving little be detrimental to the protective environment the policy about ensuring the separation of combatants ation with ANSAs was the production by OCHA of space to conceive the possibility of more constructive missions are trying to build.157 and non-combatants. On rare occasions the State has the Humanitarian Negotiations with Armed Groups:

42 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 43 Part III Engagement with ANSAs in displacement contexts: operational and policy implications

A Manual and Guidelines for Practitioners in 2006. e) Opportunities to assert ANSAs’ responsibilities responsibilities and obligations with a view to- pre rightful needs in a mixed disaster then we should Yet, this document focuses on negotiations and does In contexts where the State is unable or unwilling to venting future violations. "If everyone is eligible to be expect them to do so.”166 not cover the wider range of possible interactions assist displaced populations ― including because that a humanitarian actor, we should not exclude armed (advocacy, dissemination, training, and capacity build- State itself is responsible for people’s displacement groups from the opportunity and responsibility of Al-Shabaab fighters distribute relief to internally displaced people at ing) that humanitarian organizations may have with and is violating the rights of the displaced ― its policies humanitarian action,” argues Hugo Slim. “If an insur- K50 camp, which is outside Mogadishu and has limited access to aid. ANSAs. It makes no direct or specific reference to tend towards letting humanitarian actors provide gent group is best placed to help meet people’s © Feisal Omar/REUTERS (2011) engagement on displacement.162 assistance and protection. There are however some major pitfalls in this approach which tends to put the Following the repeated reference to the importance international organizations, which are by their nature of humanitarian engagement with ANSAS in the the most ‘external’ actors, at centre-stage of a given UNSG’s reports on the protection of civilians, a humanitarian context. First, there is the risk of ignoring number of initiatives were undertaken in subsequent or sidelining the self-protection strategies of civilians years aimed at identifying means to enhance the and local initiatives for protection. Second, the protection of civilians through constructive engage- emphasis on the State as the primary protection duty- ment with ANSAs. In 2011 the Geneva Academy of bearer in bodies of law other than IHL appears to lead International Humanitarian Law and Human Rights to framing ANSA as (only) responsible for causing or carried out a study on how to enhance ANSAs’ compli- prolonging violations. Third, this may be counter- ance with international norms. The study calledRules of productive as there are more deterrents to ANSAs Engagement has been followed up by further research protecting civilians than incentives for ANSAs to on the reactions of selected ANSAs to certain humani- protect them. tarian norms, especially those protecting civilians, and including norms related to displacement. The final Consequently, there is an assumption that ANSAs aim of the project is to provide a field manual for cannot fulfil humanitarian functions and their role ‘humanitarian engagers’.163 tends to be defined only in in military terms, ignoring the social and political dimension that many insurgen- The GPID have proved to be a useful framework cies have. This approach in turn risks minimizing or to enable a number of organizations to engage with removing their responsibility towards civilians, ANSAs on displacement-related issues. Another stripping them of potentially being a ‘protection potentially useful tool for engagement with ANSAs is actor’, a role that some ANSAs willingly aspire to the manual called The Guiding Principles on Internal or see as an important component of their holistic Displacement, A Toolkit for Dissemination, Advocacy functions. Even an ANSA with a poor human rights and Analysis developed in Sri Lanka in 2001, which is record like Al-Shabaab still sees the protection of a compilation of useful information, including the civilians as falling within their remit. modules on internal displacement put together by the NRC and OHCHR.164 The Handbook for the Protection While laws emphasize the prohibition on ANSA activity of Internally Displaced Persons published in 2010 by in displacement contexts, certain instruments like the the IASC gives useful advice to organizations working GPID and ANSAs’ own commitments offer avenues for with displaced populations in conflict settings about improved protection of displaced populations. For a engaging with ANSAs. It covers gaining a clear under- great majority of organizations getting access to dis- standing of the command structure of the groups; placed populations is almost the sole objective. While monitoring and reporting their behaviour towards the achieving this objective involves engaging directly or displaced; advocating with ANSAs to protect IDPs; indirectly with ANSAs if they have control of an area, putting a stop to violations; and ensuring respect for the engagement is often limited, and because of international human rights and humanitarian law. The the operational pressures that are characteristic of tools it contains include public exposure of violations, displacement contexts, organizations discount the direct dialogue, and passing information to other potential protective role of ANSAs there. More could bodies with influence.165 therefore be done to go beyond responding to the effects of displacement by engaging ANSAs on their

44 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 45 Part IV Conclusions and recommendations

1] Key findings

• Some ANSAs choose to displace populations, • In many conflict and displacement contexts, framing whether this displacement is deemed lawful or the relations between ANSAs and displaced com- Both the refugee and human rights legal frame- • While an array of research and operational policies unlawful. Reasons why ANSAs would forcibly munities as that of ‘violators and victims’ does not works are built around a clearly state-centric and measures have attempted to fill the gap displace people include taking possession of a terri- always accurately reflect the reality on the ground. approach and therefore focus on States’ obliga- between the protection of civilians as a concept and tory and its resources. While displacement can be An over-simplified analysis may lead to policies tions. ANSAs are identified as agents of persecution the lived experiences of civilians, a top-down triggered by an objective to dispossess, punish or towards both displaced civilians and ANSAs that are and human rights violations and abuses, with only approach whereby protection is solely the remit of control civilians, populations may also, however, be inadequate or inappropriate. While it may suit the marginal and sporadic reference made to their States and humanitarian organizations continues to moved or facilitated to move by ANSAs in order to political agenda of some States to maintain ANSAs responsibility to prevent or redress these mistreat- prevail. Despite popular narratives of community protect them from greater harm. in the role of violators or potential violators of rights ments. involvement and community resilience within such ― thus reinforcing their criminal status under a model, displaced civilians themselves and ANSAs • Displacement is not solely a situation forcibly domestic law ― this view risks overshadowing both • The development over the last 15-20 years of a continue to broadly fit the pre-conceived categories imposed on civilians but is often the outcome of a the potential protective role played by ANSAs in normative framework on internal displacement has of victims and perpetrators. By refusing to see more complex set of factors, including the evolution some instances and the human rights violations broadened and to a certain degree clarified ANSAs’ ANSAs as potential protection actors, protection or prolongation of the conflict, which in combination committed by some States. obligations for preventing displacement and pro- gaps are likely to persist. Furthermore, the focus by trigger movement. In many cases displacement is tecting the displaced, and the provisions related to humanitarian organizations on access has led not a deliberate strategy but a by-product either of • Legitimizing coercive and repressive responses return and other durable solutions. Recently trans- to situations where humanitarians opt for non- generalized violence and violations by one or both towards ANSAs leaves limited space for constructive formed into hard law in the African context, the engagement if access is denied. In this case the parties to the conflict, at times combined with the engagement. Yet, more systematic and principled new Kampala Convention fails, however, to directly civilians living in territory controlled by ANSAs, effect of natural disasters or climate change, or ade engagement with ANSAs over the responsibilities address ANSAs as such but only their members and including displaced people, risk being deprived facto situation where civilians spontaneously move they have towards civilians, in particular displaced focuses only on prohibited actions, leaving a vacuum of protection and assistance when the very conduct into the hands of ANSAs in search of protection and people, may yield some positive results in decreasing on the potential positive role of ANSAs in the of these groups might call for more robust and livelihoods. the probabilities of IHL and human rights violations protection of displaced people. innovative engagement. from occurring in the first place. • The inter-relationship between ANSAs and displaced • The relationship between ANSAs and displaced • There is currently very limited sustained and princi- populations is complex and not static. There are no • The legal and normative framework applicable to people is not sufficiently analyzed in its broader pled engagement by humanitarian actors with discernible consistent behavioural patterns given ANSAs relating to displacement and displaced people context. Other stakeholders ― especially diasporas, ANSAs on displacement-related issues. It is espe- the multiple factors and actors that can affect these is manifold: in contexts where IHL applies, the States, and international and local organizations ― cially relevant that UNHCR has no universal policy dynamics. However, certain factors including joint prohibition of displacement is the rule unless are all likely to have an impact in influencing these on engagement with ANSAs and that specialized ethnicity, the shared experience of suffering, a displacement is deemed lawful because of a pre- dynamics. Analyzing these layers of complex and international NGOs ― with the exception of some common ideology, the fact that members of ANSAs vailing military imperative and/or if it intends to fluctuating relations is key to gaining a comprehen- training on the rights of displaced people ― have pre-existing ties with displaced communities, protect civilians. IHL however does not apply in sive understanding of a given conflict and displace- generally focus on access. may forge strong bonds between ANSAs and civilians. all circumstances and has gaps in respect of the ment context; it should be the premise to define Under these conditions ANSAs are more prone to conditions of displacement and the rights of the the most suitable strategy for an engagement that exhibiting more protective behaviour towards the displaced; most notably, it does not comprehen- is aimed at improving ANSAs’ compliance with displaced, who are in turn likely to show greater sively address the civilian character of camps, the humanitarian and human rights norms, including the allegiance to and support for them. If, by contrast, return of displaced nor individual remedy mecha- rights of displaced people. these elements are absent and if it is a context in nisms, including compensation for lost property. In which the ANSAs and the displaced civilians are of the same vein, unlawful displacement is proscribed different nationality and ethnicity or have divergent by ICL, but notwithstanding the relative novelty of interests, there is a higher probability that the rela- this legal framework, neither the ICC nor any of the tionship will be characterized by abusive behaviour regional international courts have yet condemned by the ANSA, resentment, hostility and coerced individuals, from State or non-State entities, for the obedience. crime of forcible displacement.

46 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 47 Part IV Conclusions and recommendations

2] Recommendations and suggestions on ways forward

• The study of ANSAs should more systematically • Building on recommendations from the UNSG’s • Humanitarian organizations that have the protection should establish a more systematic process for assess their role in relation to displacement, espe- reports on the protection of civilians, policymakers, of displaced civilians at the core of their mandate ANSAs to report on progress made towards the cially their protective behaviour, which to date humanitarian organizations, and other influential need to institutionalize their policies over the issue respect of norms relevant to displacement. remains largely undocumented. Such research actors ― especially local and diaspora organizations of engagement with ANSAs.168 Internal discussions should aim at sharpening understanding of the ― need to develop strategies for enhancing ANSAs’ should take place within and across organizations • Human rights and humanitarian organizations and underlying structural motives for displacement, compliance with international law and norms (at field as well as at headquarters level) in forums the media should broaden their coverage of ANSAs’ considering the role played by both ANSAs and civilians pertaining to displacement. Forthcoming UNSG's such as the Global Protection Cluster, the International actions in displacement contexts beyond negative in displacement. Further research should be reports should more clearly frame ANSAs as poten- Council of Voluntary Agencies (ICVA), and the Inter- acts. They should also document ANSAs’ behaviour conducted at field level to explore in greater detail tial protection actors, especially in displacement Agency Standing Committee (IASC) to identify some or initiatives aimed at preventing or mitigating the specific interactions between ANSAs and displaced contexts, beyond the preponderant role of States of the main challenges and good practices as well as causes of displacement and protective actions populations in diverse geographical contexts. It and the complementary one of humanitarian engagement strategies. Organizations could also towards displaced populations. When protection should also reflect the variety of places of refuge actors. Such an approach, while not affecting the learn from those such as ICRC and Geneva Call shortfalls exist because of a lack of capacity or a lack (e.g. in camps, with host communities, or in urban legal status of ANSAs, could in practice create a which are already systematically engaging with of knowledge by those with the potential to contexts), as well as some of the gendered and positive incentive for them to take greater responsi- ANSAs on humanitarian norms. It is essential to protect, such reports, which have often in the past generational dimensions of these relations. This bility for their actions and adopt more protective ensure participation of local staff and address specific recommended support to (government) structures, work ought to be combined with inputs from and behaviours. These reports should be used by actors challenges that they may face as well as the leverage should similarly address capacity issues for ANSAs. consultations with practitioners, displaced commu- engaging with ANSAs as policy guidance. they may have when engaging with ANSAs. As a nities and members of ANSAs and should ultimately follow-up to internal and external discussions, the • Host States and donor States should halt policies serve to guide the development of more appropriate • Humanitarian organizations should further develop leadership of these organizations should develop that obstruct efforts to engage with ANSAs and policies and programmes. engagement strategies with ANSAs on displace- their own internal guidelines (where these are miss- support initiatives aimed at reducing episodes of ment, such as the Deed of Commitment. The dis- ing) based on existing experiences of engagement displacement triggered by ANSAs and at enabling • To refine our comprehension as to why ANSAs may semination of relevant norms and provisions, and negotiations with ANSAs. them to prevent and address displacement. be unable or unwilling to adhere to certain norms, through training sessions and discussions with humanitarian organizations and research institutions ANSAs, should be used as a means to strengthen • Existing human rights monitoring and reporting • Policymakers should consider supporting projects with expertise on displacement should consult with ANSAs’ awareness of their obligations towards the mechanisms should document more systematically by local organizations and diaspora groups aimed at ANSAs to better understand their positions on existing rights of displaced people and as a means to prevent and in an equal and impartial manner on unlawful engaging ANSAs ― directly as well as through wider norms pertaining to displacement. Geneva Call or facilitate displacement in accordance with IHL, displacement and violations towards displaced people community mechanisms and networks ― towards may, for instance, use its forthcoming meeting of the Guiding Principles on Internal Displacement committed by both State and ANSAs. When reporting building a more protective environment for dis- ANSA signatories to the Deeds of Commitment to and the Kampala Convention. The involvement of on violations against displaced people committed placed people. Such projects can have a positive introduce the issue of displacement and assess its civil society organizations in such activities is essential by ANSAs, human rights organizations or humanitarian and complementary role to the protection work of importance in the eyes of ANSAs. Some of these to ensure the pertinence, appropriateness and actors should not restrict recommendations to international humanitarian organizations, including initial discussions could be pursued and deepened sustainability of these actions and ensure greater State authorities and the international community. in contexts where ANSAs’ hostility towards the with selected ANSAs during follow-up field missions ownership by the communities concerned. They should furthermore resist from downplaying international community is limiting ‘protection by in contexts where displacement-related issues cases of abuses and displacement caused by gov- presence’ types of activities. These initiatives constitute a paramount component of the conflict. ernments against those triggered by ANSAs. They should have solid monitoring and evaluation mech- ANSAs’ views collected as part of these consulta- should make recommendations to ANSAs to stop anisms built in, both to enhance transparency over tions could complement existing data on ANSAs’ and where possible redress violations they are the role of such actors and to ensure impact. perspectives, including Geneva Call’s Their Words, accused of committing. Directory of ANSA Humanitarian Commitments.167 • As an adjunct to engagement and monitoring, in • External monitoring of ANSAs’ behaviour related to order to address impunity, persistent and grave civilian displacement should be strengthened, violations amounting to the war crime of displace- including by using as a baseline ANSAs’ own ment by State and non-State actors alike should be commitments when these already exist. The UN prosecuted as such by international jurisdictions. Special Rapporteur on the Human Rights of IDPs

48 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 49 Endnotes

1 The conference was supported by the Swiss FDFA and the Norwegian in Colombia's Internal Armed Conflict’ . RSCworkingpaper64.pdf>. 53 Additional Protocol I (API) Article 1 (4) creates an exception wherein the GC_2011_ANSAs_Report_EN.pdf>. law of international armed conflict may be applicable to ANSAs involved in 19 Peaceful Change initiative and AFAQ Libya.2012.‘Understanding the 37 Kahn, Clea. 2008. ‘Conflict, Arms, and militarization: The Dynamics of “armed conflicts in which peoples are fighting against colonial domination 2 Forced Migration Review 37. 2011. . relationships between communities and armed groups, as a contribution Darfur’s IDP Camps’, Small Arms Survey, Graduate Institute of International and alien occupation and against racist regimes in the exercise of their to peaceful change in Libya . Nations and the Declaration on Principles of International Law concerning Displaced Persons’ Protection’, Refugee Survey Quarterly, vol. 24 issue 3. armed_groups_in_libya_web.pdf>. Friendly Relations and Co-operation among States in accordance with the A shorter version, ‘Getting non-state actors to protect IDPs’ is in the 38 McSweeney, Damien. 2012. ‘Conflict and deteriorating security in Charter of the United Nations”. supplement to FMR 24, ‘Protecting the internally displaced: the way 20 It is estimated that close to 75,000 Muslims were forced from their Dadaab’, Humanitarian Exchange Magazine 53 . homes during the late 1980s and early 1990s. The few Sinhalese who used humanitarian-exchange-magazine/issue-53/conflict-and-deteriorating- 54 Sivakumaran, Sandesh. 2012. The Law of Non-International Armed to live in Jaffna city were forced out years before the Muslims; refer IRIN security-in-dadaab>. Conflict, Oxford University Press. 4 Jacques, Mélanie. 2012. ‘Armed Conflict and Displacement, The Protection Briefing. 2013. ‘Sri Lanka’s Muslim IDPs 25 years on’ . 39 Field notes from a research project on protection and livelihood 55 Dawson, Grant and Farber Sonia. 2012. ‘Forcible Displacement Law’, Cambridge Studies in International and Comparative Law. conducted for the Danish Refugee Council in CAR. Paddon, Emily. 2011. Throughout the Ages, Towards an International Convention for the 21 Brun, Cathrine. 2008. Finding a place, Local integration and protracted ‘Protection and Livelihood Recovery Support to IDPs, Returnees and Prevention and Punishment of the Crime of Forcible Displacement’, 5 Mae La was set-up in 1984 and remains the biggest camp in Thailand displacement in Sri Lanka, Social Scientists’ Association. others Affected by Conflict in the Central African Republic’, commissioned International Humanitarian Law Series vol. 56, Martinus Nijhoff with 150,000 people. by the Swedish Development International Coordination Agency (SIDA). Publishers. 22 Bangerter, Olivier. 2011. The author of this report was co-investigator of the overall project. 6 World Disasters Report 2012, ‘Focus on forced migration and 56 Willms, Jan. 2009. ‘Without order, anything goes? The prohibition of displacement’, International Federation of Red Cross/Red Crescent 23 Guardian Development Network. 2011. ‘Insurgents prevent Somalis 40 Ansel, Douglas. 2011. ‘Civilian support and the foundations of al-Shabaab forced displacement in non-international armed conflict’, International Societies . global-development/2011/sep/07/somalia-famine-insurgents-prevent-aid>. Life & Peace Institute . book.pdf>. 7 IDMC. 2011. 'Internal Displacement: Global Overview of Trends and 24 IDMC. 2013. ‘Mali: Nowhere to run: Fleeing Malians struggle to find 57 In practice abuses are common and “time and again, governments Developments in 2010' . B1/28httpInfoFile29/210ECB2CC77BD949C1257AFA004A6DCB/$file/ Borderlands: An Invisible Threat to Citizen Security?’ St Anthony’s argument to justify their unlawful practices or forced displacement”, mali-brief-jan2013.pdf>. International Review, vol. 7 no. 2. Jacques, Mélanie. 2012. 8 IPSOS /ICRC. 2009. Our world. Views from the field, Opinion Survey and in-depth research- summary report . documentary, ‘Sri Lanka’s Killing Fields’ . International Humanitarian Law’, ICRC and Cambridge University Press 43 Fiddian-Qasmiyeh, Elena. 2011. ‘Protracted Sahrawi displacement, . Hurst. return’, in Forced Migration Review 37 . policy-briefings/ProtractedSahrawiDisplacement.pdf>. 59 Specifically mentioned are unaccompanied children, expectant 10 Bradley, Miriam. 2012. Protecting civilians in internal armed conflict: and nursing mothers, persons with disabilities, and the elderly. the International Committee of the Red Cross and the Office of the United 27 Interviews with ANSAs’ leaders and refugee representatives in the Thai/ 44 Mampilly, Zachariah Cherian. 2011. Rebel Rulers: Insurgent Governance Nations High Commissioner for Refugees, Thesis, Department of Politics Burma border, January 2013. and Civilian Life During War, Ithaca: Cornell University Press. 60 Guillard, Emanuela-Chiara. 2005. ‘The Role of International and International Relations, University of Oxford. Humanitarian Law in the Protection of Internally Displaced Persons’, 28 Weissman, Fabrice. 2003. ‘Sierra Leone: Peace at any price’ in 45 Interview with key informant, January 2013. Refugee Survey Quarterly, vol. 24 issue 3. 11 Long, Katy. 2011. ‘Permanent Crises? Unlocking the protracted In the Shadow of ‘Just War’ Violence, Politics and Humanitarian Action, displacement of refugees and internally displaced persons’, Médecins Sans Frontières. 46 Herath, Tamara. 2012. ‘Women in terrorism: case of the LTTE’, SAGE; 61 It could be inferred that those ANSAs who control territory and Policy Overview, Refugee Studies Centre, University of Oxford International Crisis Group. 2011. ‘Sri Lanka: women’s insecurity in the act as de facto authorities would be more able to provide such services . War and the militarization of mining in eastern Congo’, asia/south-asia/sri-lanka/217-sri-lanka-womens-insecurity-in-the-north- . and-east.aspx>. 62 Fitzpatrick, Joan. 2000. ‘Human Rights and Forced Displacement: 12 Ambroso, Guido. 2011. ‘The end of history? Conflict, displacement Converging Standards in Human Rights and Forced Displacement’, and durable solutions in the post-cold war era’, New Issues in Refugee 30 Coletta, Nat. J. 2011. ‘The Search for Durable Solutions, Armed Conflict 47 Geneva Call. 2004. Women in Armed Opposition Groups Speak on War; eds. Bayefsky, Anne Fand Fitzpatrick Joan, Refugees and Human Rights, Research, paper no. 207 . and Forced Displacement in Mindanao, Philippines’, Conflict, Crime & see also Women in Armed Opposition Groups in Africa, Report of a vol. 4, Matinus Nijhoff Publisher. Violence Issue Note, Social Development Department, The World Bank workshop organized by Geneva Call and the Program for the Study of 13 Phuong, Catherine. 2004. ‘The International Protection of Internally Group . gc-2005-23nov-women.pdf>. 64 Human Rights Watch. 2008. ‘Human Rights in Western Sahara and 14 Bangerter, Olivier. 2011. ‘Reasons why armed groups choose to respect 31 Lindley, Anna. 2010. ‘Leaving Mogadishu: Towards a Sociology of 48 Despite policy efforts to broaden the definition of combatant, thus in in the Tindouf Refugee Camps’ Cape Town wsahara1208web.pdf>. Red Cross, vol. 93 no. 882 . 32 IDMC. 2011. to be excluded. 65 In respect of ANSAs, this means that criminal liability for members may exist in situations where the ANSA itself does not qualify as an armed 15 Ruaudel, Héloïse. 2011. ‘Catch me if you can! The Lord’s Resistance Army’, 33 Frelick, Bill. 1999. ‘The Wall of Denial: internal displacement in Turkey’, 49 Baines, Erin and Paddon Emily. 2012.‘‘This is how we survived’: Civilian group under IHL. Forced Migration Review 37 . US Committee for Refugees. agency and humanitarian protection’ Security Dialogue, vol. 43 no. 3. 66 Opinion of Dr Sandesh Sivakumaran regarding the non-extension of 16 Explanation reportedly given by Joseph Kony when asked why he 34 Oxfam. 2012. ‘Commodities of War, Communities speak out on the true 50 Karen Human Rights Group. 2010. Self-protection under strain: the principle of non-refoulement to ANSAs (e-mail exchange, May 2013). targeted displaced camps; this information was provided in May 2013 cost of conflict in eastern DRC’ Oxfam Briefing Paper 164 Juba peace talks. 201112-en.pdf>. burmalink.org/wp-content/uploads/2012/12/KHRG-2010.-Self-Protection- under-Strain_targeting-of-civilians-and-local-responses-in-northern-Karen- 68 Phuong, Catherine. 2004. 17 HRW. 2010. ‘Always on the Run, The Vicious Cycle of Displacement 35 Kramer, Sophie. 2012. ‘Forced marriage and the absence of gang rape: State.pdf>. in Eastern Congo’ . Uganda’, Journal of Politics & Society, Colombia University 51 Fiddian-Qasmiyeh, Elena. 2011. . 70 See Article 1.2 of the 1969 Convention Governing the Specific Aspects 18 Amnesty International. 2008. ‘‘Leave Us in Peace!’ Targeting Civilians 36 Jaber, Suleiman, Mansour Nisrine, and Yassin Nasser. ‘No refuge: of Refugee Problems in Africa and Article III.3 of the 1984 Cartagena Declaration on Refugees.

50 | Armed non‐State actors and displacement in armed conflict Geneva Call | Research on armed non‐State actors and displacement in armed conflict | 51 endnotes

71 By ‘agents of persecution’, paragraph 65 of the UNHCR Handbook on 93 Article 8 of the Humanitarian Cease Fire Agreement on the Conflict the Brookings-LSE Project on Internal Displacement . default/files/ICTJ-Brookings-Displacement-Criminal-Justice-Colombia- Movement’s Identity through Facebook’ Conflict and Communication Convention and the 1967 Protocol relating to the Status of Refugees CaseStudy-2012-English.pdf>. Online, vol. 12 no. 1 ; and interview of a UK-based member of the LYM authorities of a country” but that it can be perpetrated by “the local between the Government of Nepal and the Communist Party of Nepal 109 Grono, Nick. 2012. The deterrent effect of the ICC on the commission . populace” or “sizeable fractions of the population”. “’Sizeable fractions (Maoist) of 21 November 2006 (unofficial translation available on of international crimes by government leaders, International Crisis Group of the population’ embraces any non-governmental group such as a ). . peacebuilders/drcongo/news/>. paramilitary groups, etc... It also includes, a fortiori, non-recognized 95 he SLM-Unity splits from the larger SLM in 2006. entities exercising de facto authority over a part of the national territory.” 110 S/RES/1894 (2009) Preamble. 125 ‘Interview with Geneva Call’s partner in Senegal, APRAN’, Geneva Call HCR/IP/4/Eng/REV.1 Reedited (1992) . 96 Geneva Call and IDMC. 2011. Newsletter Vol. 8 no.2 ― 2010 . 72 Wouters, Cornelis Wolfram. 2009. International Legal Standards for the 97 Sivakumaran, Sandesh. 2012. obligations of non-State armed groups: A possible contribution from Protection from Refoulement, Intersentia . 98 ‘Standing order by the Moro Islamic Liberation Front (MILF), Philippines, Humanitarian Law, eds. Kolb, Robert and Gaggioli Gloria, Edward Elgar . 73 Respectively Article 1(e) and Article 1(n) of the Kampala Convention. General Order for General Order Nos. 1 & 2; and in support of the Action Plan between the Moro Islamic Liberation Front (MILF) and the United 112 Brun Cathrine. 2009. ‘IDPs and Hosts as Constitutive Categories in 127 Mahony, Liam. 2013. ‘Non-military strategies for civilian protection in the 74 Introductory Note by the Representative of the Secretary-General on Nations in the Philippines Regarding the Issue of Recruitment and Protracted Displacement: Experiences from Puttalam’, Forced to Move, DRC’, Fieldview Solutions . IDPs, UN GPID. Use of Child Soldiers in the Armed Conflict in Mindanao’, quoted in Involuntary displacement and resettlement policy and practice, Centre for . ‘People internally displaced by violence and conflict’. 2011. 113 This arrangement was formalized in the 1969 Cairo Accord between . 76 See Kampala Convention Article 4.4(b). 99 The other three gaps identified by ICRC are i) family unity; ii) the civilian the PLO and the Lebanese government. It also sanctioned the Palestinian character of IDP camps; iii) documentation; and vi) individual remedy armed struggle against Israel being carried out from Lebanon. 129 ‘The strength of local capacities in Mindanao’, in UNHCR. 2012. 77 Principle 9 of the GPID. mechanisms, including compensation for lost property. Refer ICRC. 2011. The State of the World’s Refugees . Strengthening legal protection for victims of armed conflicts, Report of the 114 Roberts, Rebecca. 2010. Palestinians in Lebanon, Refugees Living with 78 Principle 23 of the GPID. 31st International Conference of the Red Cross and Red Crescent Long-term Displacement, I.B. Tauris; Suleiman, Jaber. 2008. ‘Refugees or 130 These initiatives have been supported by Oxfam GB; information . Macmillan. empowering women and men . Internal Displacement and Protection: Recommendations for Strengthening 81 Principle 12 of the GPID and Article 9.1(c) of the Kampala Convention. Action through Resolutions, The Brookings Institution-LSE Project on 116 For Beth Ferris the term ‘host community’ seems to imply a positive 131 . Annotations’, Studies in Transnational Legal Policy, no. 38, 2nd edition, council_id_protection.pdf>. ‘affected community’ is perhaps less tendentious in this respect; refer The American Society of International Law and The Brookings Institution Ferris, Elizabeth. 2013. ‘The Syrian Humanitarian Crisis: Five Uncomfortable 132 Der Spiegel online International. 2011. ‘A Test for Universal Jurisdiction: . Accountability of Armed Groups’, Program on Humanitarian Policy and up-front/posts/2013/07/08-syria-humanitarian-crisis>. germany/a-test-for-universal-jurisdiction-war-crimes-in-africa-on-trial-in- Conflict Research, Harvard University blog. . 83 Principle 20(2) of the GPID and Article 13 of the Kampala Convention. hpcr/2012-04-02/human-rights-obligations-and-accountability-armed- 117 Beytrison, Fran and Kalis Olivia. 2013. ‘Repeated displacement in Refer Ojeda, Stéphane. 2010. ‘The Kampala Convention on Internally groups>; and Constantinides, Aristoteles. 2010. ‘Human Rights Obligations eastern DRC’, Forced Migration Review 43, . and the diasporic: the shifting centre of gravity in war-torn Sri Lanka’s Refugee Survey Quarterly, vol. 29 issue 3. Security Council’ Human Rights and International Legal Discourse , vol. 4 transnational politics’, Contemporary South Asia, vol. 20 no.1, Routledge. no. 1, Intersentia. 118 See www.prsproject.org/ and Loescher, Gil, Milner James, Newman 84 Article 11 and Article 12(1), 12(2) of the Kampala Convention. Edward and Troeller Gary. 2008. Protracted Refugee Situations, Political, 134 Lindley, Anna. 2010. ‘The Early Morning Phone Call, Somali Refugees’ 102 ICRC. 2008. ‘Interpretive Guidance on the Notion of Direct Participation Human Rights and Security Implications, United Nations University Press. Remittances’, Forced Migration, vol. 28, Berghahn Books; Refugee Studies 85 Article 7.5 (d) of the Kampala Convention. in Hostilities under International Humanitarian Law’, adopted by the Centre, ‘Humanitarian Action in Somalia: Expanding Humanitarian Space’, Assembly of the International Committee of the Red Cross on 26 February 119 Christophersen, Mona and Thorleifsson Cathrine. 2013. ‘Contradictory Report of workshop June 2009 . pdf)and ICRC Study Rules 1-10>. FAFO and American University of Beirut . Forced Migration Review 37 . 88 UN Principles on Housing and Property Restitution for Refugees extent feasible, avoid locating military objectives within or near densely and Displaced Persons . refugees after devastating car bomb’, The Telegraph . mobs-search-out-civil-war-refugees-after-devastating-car-bomb.html>. diaspora-programme/>. conflict, S/2009/277, paragraph 38. 105 ICRC. 2011. 121 Phillips, Sarah. 2010. ‘What Comes Next in Yemen? Al-Qaeda, the 137 Espen, Barth Eide. 2010. ‘Dealing with non-state armed groups and 90 Report of the Secretary-General on the protection of civilians in armed Tribes, and State-Building’, Yemen: On the Brink, A Carnegie Paper Series, displacement: a state perspective’Forced Migration Review 37 conflict, S/2012/376, paragraphs 38 and 39. 106 Bradley, Megan. 2012. ‘The Crime of Displacement: Holding Leaders Carnegie Endowment for International Peace, Middle East Program no. 107 . Accountable’ . 91 These commitments are available on the Geneva Call database charles-taylor-bradley>. 138 Machintosh, Kate and Duplat Patrick. 2013. ‘Study of the Impact of ‘Their Words: the Directory of Armed Non-State Actor Humanitarian 122 Civil Society Organizations comprise a wide of array of organizations: Donor Counter-Terrorism Measures on Principled Humanitarian Action’ Commitments’ . 107 Under Articles 7(1) (d) and 7(2) (d). community groups, non-governmental organizations, labour unions, < www.nrc.no/arch/_img/9680219.pdf>. indigenous groups, charitable organizations, faith-based organizations, 92 In Burundi this term had the meaning of people displaced outside 108 Andreu-Guzmán, Federico. 2012. ‘Criminal Justice and Forced professional associations, and foundations. (Definition from the World 139 Chatham House. 2012. ‘The Mandate of the Special Rapporteur on the camps, as opposed to ‘displaced persons’ (personnes déplacées) Displacement in Colombia, Case Studies on Transitional Justice and Bank ). International%20Law/220212summary.pdf>.

52 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 53 endnotes Selected bibliography

140 Interview with key informant, November 2012, London; see also 155 Mahony, Liam. 2013. Acquaviva, Guido. 2011. ‘Forced Displacement and Farrell, Theo and Schmitt Olivier. 2012. Benson , Edward. 2010. ‘Civilian protection in Sri Lanka under Threat, Refugee Studies Centre’, Working Paper Series no. 58 . refer Jackson, Ashley. 2012. ‘Talking to the other side: Humanitarian Research Series, UNHCR Division of International Conflict, and the Effects on Civilian Populations engagement with armed non-State actors’, HPG Policy Brief 47 141 Keogh, Sean and Ruijters Yvonne. 2012. ‘Dangerous liaison? A historical 1990-2010’ Legal and Protection Policy Research review of UNHCR’s engagement with non-State armed actors’, UNHCR files/7711.pdf>; see also Jackson, Ashley and Giustozzi Antonio. 2013. Series, UNHCR Division of International Protection Policy Development and Evaluation Service . Afghanistan’, HPG Working Paper odi-assets/publications-opinion-files/7968.pdf>. displacement and durable solutions in the post-cold 142 OHCHR. 2011. ‘International Legal Protection of Human Rights in Armed Conflict’ . 157 Global Public Policy Institute and ECHO. 2012. ‘Evaluation and review war era’, New Issues in Refugee Research, Fiddian-Qasmiyeh, Elena. 2011. ‘Protracted Sahrawi of humanitarian access strategies in DG ECHO-funded interventions’ paper no. 207 displacement, Challenges and opportunities 143 Information provided by key informant, November 2012, Geneva. . beyond encampment’, Refugee Studies Centre 144 Milner, James. 2011. ‘Refugees and the peacebuilding process’, 158 This concept is in the preamble to the 1951 Refugee Convention and Amnesty International. 2008. ‘‘Leave Us in Peace!’ Forced Migration Policy Briefing 7 Research Paper no. 224, New Issues in Refugee Research, UNHCR the principle is intended to be operationalized through the 2006 ; United States Institute of Peace and ‘Operational Guidelines on Maintaining the Civilian and Humanitarian Targeting Civilians in Colombia's Internal Armed Processes and Peace Agreements’, The Peacemaker’s Toolkit Series Fitzpatrick, Joan. 2000. ‘Human Rights and Forced mchugh.pdf>; Koser, Khalid. 2009. ‘Integrating Displacement in Peace 160 Muggah, Robert. 2010. ‘Once we were warriors: critical reflections Processes’, Refugee Survey Quarterly, vol. 28 issue 1. on refugee and IDP militarisation and human security’,Human Security & Displacement: Converging Standards in Human non-Citizens, Law, Policy and International Affairs, eds. Edwards, 145 . Alice and Fertsman Carla, Cambridge University Press. Baines, Erin and Paddon Emily. 2012.‘‘This is how Rights and Forced Displacement’, Refugees we survived’: Civilian agency and humanitarian and Human Rights vol. 4, eds. Bayefsky, Anne F. 146 ICRC. 2009. ‘Internal Displacement in Armed Conflict, Facing up to the 161 McConnachie, Kirsten. 2012.’Rethinking the 'refugee warrior': the Challenges’ . Karen National Union and Refugee Protection on the Thai-Burma border’, protection’ Security Dialogue, vol. 43 no. 3 and Fitzpatrick Joan, Matinus Nijhoff Publisher Journal of Human Rights Practice, vol. 4 issue 1 . non-state/Lacroix-et-al.html>. Bangerter, Olivier. 2011. ‘Reasons why armed groups Forced Migration Review 37. 2011. 162 McHugh, Gerard and Bessler Manuel. 2006. Humanitarian Negotiations choose to respect international humanitarian law 148 Keogh, Sean and Ruijters Yvonne. 2012. with Armed Groups, A Manual for Practitioners, OCHA, United Nations . vol. 93 no. 882 Law and Human Rights. 2011. Rules of Engagement: This information was provided by current and former DRC staff involved in 2011. Rules of Engagement: Protecting Civilians through Dialogue Protecting Civilians through Dialogue with Armed conducting these trainings in Sri Lanka. with Armed Non-State Actors . Barrs, Casey. 2010. Preparedness Support: Non-State Actors 151 Tennant, Vicky, Doyle Bernie and Mazou Raouf. 2010. ‘Safeguarding What You Can Do. humanitarian space: a review of key challenges for UNHCR’, UNHCR Policy Development and Evaluation Service . 165 . Bradley, Megan. 2012. ‘The Crime of Displacement: Geneva Call database ‘Their Words: the Directory of Holding Leaders Accountable’ Global Society Conference.2012. . media/BritishRedCross/Documents/What%20we%20do/Protecting%20 Coletta, Nat. J. 2011. ‘The Search for Durable Geneva Call and IDMC. 2011. ‘Armed non-State people%20in%20conflict/NGOMilitary20Keynote.pdf>. 153 Machintosh, Kate and Duplat Patrick. 2013. Solutions, Armed Conflict and Forced Displacement actors and the protection of internally displaced 167 . in Mindanao, Philippines’, Conflict, Crime & Violence people’, conference report 23-24 March 2011, 154 United Nations Security Council. 2012. ‘Report of the UN Secretary- Issue Note, Social Development Department, Geneva es/244362-1164107274725/3182370- 1164110717447/Durable-Solutions-Conflict-Displace- ment-Mindanao.pdf>

54 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 55 selected bibLiography

Guillard, Emanuela-Chiara. 2005. ‘The Role of Kälin, Walter. 2008. ‘Guiding Principles on Internal Mawson Andrew, Dodd Rebecca and Hilary John. UNHCR. 2006. Guidelines on Maintaining the Civilian International Humanitarian Law in the Protection Displacement Annotations’, Studies in Transnational 2000. War brought us here: Protecting Children and Humanitarian Character of Asylum of Internally Displaced Persons’, Refugee Survey Legal Policy, no. 38, 2nd edition, The American Society Displaced within their Own Countries by Conflict, Quarterly, vol. 24 issue 3 of International Law and The Brookings Institution Save the Children warrior': the Karen National Union and Refugee Protection: Recommendations for Strengthening Conference of the Red Cross and Red Crescent Protection on the Thai-Burma border’, Journal of Action through Resolutions, The Brookings Development Studies org/fileadmin/docs/working-papers/HSBA-WP- ‘Rebels and Refugees, Syrians in Southern Turkey’ IDMC/NRC and UNHCR.2013. A Life of Fear and 15-Conflict-Arms-Militarization.pdf> PRIO Policy Brief 10, Peace Research Institute Oslo Willms, Jan. 2009. ‘Without order anything goes? Flight, The Legacy of LRA Brutality in North-East Republic of the Congo ‘Dangerous liaison? A historical review of UNHCR’s Brief-10-2012.pdf> Review of the Red Cross, vol. 91 no. 875 Idler, Anette. 2012. ‘Arrangement of Convenience in UNHCR Policy Development and Evaluation Service Nyers Peter. 2006. Rethinking Refugees: Beyond Colombia’s Borderlands: An Invisible Threat to Citizen States of Emergency, Routledge New York Zahar, Marie-Joelle. 2001. ‘Protégés, Clients, Cannon Security?’ St Anthony’s International Review, Fodder: Civil-Militia Relations in Internal Conflicts’ vol. 7 no. 2 Lindley, Anna. 2013. Displacement in contested Ojeda, Stéphane. 2010. ‘The Kampala Convention Civilians in War, ed. Chesterman, Simon, A project places: governance, movement and settlement on Internally Displaced Persons: Some International of the International Peace Academy, Lynne Rienner IFRC. 2012. World Disaster Report 2012, in the Somali territories, Journal of Eastern African Humanitarian Law Aspects’, Refugee Survey Quarterly, Publishers Focus on forced migration and displacement Studies, vol.7 issue 2 vol. 29 issue 3 Lindley, Anna. 2010. ‘Leaving Mogadishu: Phuong, Catherine. 2004. ‘The International Actors on Internally Displaced Persons’ Protection’, Towards a Sociology of Conflict-Related Mobility’, Protection of Internally Displaced Persons’, Refugee Survey Quarterly, vol. 24 issue 3 International Review of the Red Cross. 2009. Journal of Refugee Studies, vol. 23 issue 1 Cambridge Studies in International and Comparative Displacement, vol. 91 no. 875 displaced persons’, Policy Overview, Refugee Studies International Armed Conflict’, Oxford University Press Centre, University of Oxford and morality in war, Hurst Displaced Persons under International Humanitarian Law, Cambridge University Press Mampilly, Zachariah Cherian. 2011. Rebel Rulers: The Lawyers Committee for Human Rights. Insurgent Governance and Civilian Life During War, 2002. Refugees, Rebels and the Quest for Justice Ithaca: Cornell University Press

56 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 57 Acronyms

ANSA Armed non-State actor IASC United Nations Inter-Agency NPFL National Patriotic Forces of Liberia Standing Committee APII Additional Protocol II to the NRC Norwegian Refugee Council Geneva Conventions ICC International Criminal Court OCHA United Nations Office for the APRAN-SDP Association pour la promotion ICL International Criminal Law Coordination of Humanitarian Affairs rurale de l’arrondissement de Nyassia, ICRC International Committee Solidarité ― Développement ― Paix OHCHR United Nations Office of the of the Red Cross High Commissioner for Human Rights AQAP Al-Qaeda in the Arabian Peninsula ICU Islamic Courts Union PKK Kurdistan Workers Party AQIM Al-Qaeda in the Islamic Maghreb ICVA International Council (Partia Karkaren Kurdistan) BIAF Bangsamoro Islamic Armed Forces of Voluntary Agencies PLO Palestine Liberation Organization CAR Central African Republic IDMC Internal Displacement PNLO Pa-Oh National Liberation Organization Monitoring Centre CBO Community-based organization RUF Revolutionary United Front IDPs Internally displaced persons CNF Chin National Front SADR Saharawi Arab Democratic Republic IHL International Humanitarian Law CPN (M) Communist Party of Nepal (Maoist) SLM/A-MM Sudan Liberation Movement/Army - IRC International Rescue Committee CRC Centre Résolution Conflits Minni Minnawi JEM Justice and Equality Movement CSO Civil society organization SLM/SLA Sudan Liberation Movement/Sudan KHRG Karen Human Rights Group Liberation Army DDR Disarmament, Demobilization, and Reintegration KNU Karen National Union TFG Transitional Federal Government of Somalia DKBA Democratic Karen Buddhist Army KNPP Karenni National Progressive Party TRO Tamil Rehabilitation Organization DRC Danish Refugee Council LRA Lord’s Resistance Army UN United Nations DRC The Democratic Republic of Congo LTTE Liberation Tigers of Tamil Eelam UNHCR Office of the United Nations ELN National Liberation Army LYM Libya ‘February 17’ Youth Movement High Commissioner for Refugees (Ejército de Liberación Nacional) MFDC Movement of Democratic Forces UNICEF United Nations Children’s Fund ERC United Nations Emergency Relief of Casamance (Mouvement des Forces Coordinator Démocratiques de Casamance) UNSC United Nations Security Council FARC The Revolutionary Armed Forces MILF Moro Islamic Liberation Front UNSG United Nations Secretary-General of Colombia (Fuerzas Armadas Revolucionarias de Colombia) MUJAO Movement for Unity and Jihad WANEP West Africa Network for Peacebuilding in West Africa FDFA Swiss Federal Department of Foreign Affairs NGO Non-governmental organization FDLR Democratic Forces for the Liberation NIAC Non-international armed conflict of Rwanda (Forces Démocratiques pour la Libération du Rwanda) FMR Forced Migration Review magazine GPID UN Guiding Principles on Internal Displacement HDC Centre for Humanitarian Dialogue HPG Humanitarian Policy Group HRL Human rights law HRW Human Rights Watch

58 | Armed non‐State actors and displacement in armed conflict Armed non‐State actors and displacement in armed conflict | 59 Geneva Call is a neutral and impartial humanitarian violence in armed conflict and working towards non-governmental organization that engages in the elimination of gender discrimination. Geneva Call dialogue with armed non-State actors (ANSAs) to also responds to ANSA requests to help build their promote their adherence to, and respect for, interna- knowledge of, and capacities, to implement inter- tional humanitarian norms in armed conflict and national humanitarian norms. other situations of violence, in particular regarding the protection of civilians. The key tool of engagement that Geneva Call uses is an innovative instrument known as the Deed Geneva Call is currently focusing its efforts on banning of Commitment, which allows ANSAs to undertake the use of anti-personnel mines, protecting children to respect international standards and be held from the effects of armed conflict, prohibiting sexual accountable.

Acknowledgements

The research received support from Geneva Call staff, and Management, Office of the United Nations High in particular Pascal Bongard who coordinated the project, Commissioner for Refugees (UNHCR), Marit Glad, Chris Rush and Reno Meyer who facilitated the field Global Access Adviser, Norwegian Refugee Council mission to the Thai-Burma border and Jonathan (NRC), Kathrine Starup, Policy Advisor, Danish Refugee Somer who gave substantive inputs on the legal and Council (DRC), Greta Zeender, Adviser to the Special normative part of the report. In addition to Geneva Rapporteur on the Human Rights of Internally Call’s inputs, the research was reviewed in full or Displaced Persons, United Nations Office for the in part by Olivier Bangerter, Deputy Head of section, Coordination of Humanitarian Affairs (UNOCHA) and Section Humanitarian Policy and Migration, Swiss Federal Roger Zetter, Professor Emeritus, Refugee Studies Department of Foreign Affairs, Jean-François Durieux, Centre. former Director of the Division of Programme Support

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