As exemplified in the case above, the legal restrictions to a negotiation process may be quite stringent. Many of these laws may also be used to draw undue advantages for the parties involved. It is therefore important for negotiators to:
- Know about the legal restrictions in force in the context. See which of these legal restrictions the government is actually enforcing (i.e., which ones are active red lines and which ones are more rhetorical);
- Identify which legal norms are potentially used to extract undue advantages (e.g., fees for a permit) and seek a clearance of these restrictions at a higher level;
- Avoid making legal arguments in a negotiation unless i) the laws are in force in the country; ii) these laws are recognized by the counterpart; and iii) these laws provide an incontestable advantage to the humanitarian organization; and
- Get the necessary legal advice to support such argument as the point of the negotiation is to seek the consent of the counterpart to operate and not force its compliance to given rules that favor the humanitarian operators.
As compared to other red lines, organizations have little control over the legal framework regulating their operations in the country. A number of these rules may impose restrictions that are in conflict with some of their values and policies and would prevent the negotiators from reaching an agreement that is both acceptable for the organization and legal in the jurisdiction. The organization should refrain from operating in this environment unless it is ready to change its red line or if the government agrees to exempt the organization from the rule. The fact that another organization is ready to comply with the demands at the cost of the legitimacy and legality of the arrangement is not a motive to violate one’s own rules.
Institutional Red Lines
Institutional norms constitute a significant pool of red lines of a humanitarian negotiation. The purpose of institutional norms is to maintain a coherent approach to the humanitarian mission of the organization and preserve the reputation of the organization within professional and donor circles. There are two categories of institutional red lines: a) Humanitarian principles, and b) Other institutional red lines.
Each of these institutional principles and norms entails specific red lines as part of the mandate of the negotiator or as elaborated in the course of dialogue with the mandator. It should be noted that, while legal red lines cannot be altered, institutional norms are under the control of the organization. There may be situations where the mandator may opt for or delegate the flexibility to the negotiation team to adapt the policies to the situation depending on the cost/benefit of the policy.
Humanitarian principles as institutional red lines
Humanitarian principles constitute an important source of institutional red lines, although their interpretations vary from one organization to the next. These principles involve the following:
Humanity
The object of the negotiation pertains to the provision of essential goods and services to preserve the life and dignity of affected individuals or populations. All objects of the negotiation falling within this definition are therefore allowed. Other objects (e.g., planting trees or paving a road) may fall outside the scope of humanitarian negotiation, depending on the context. The farther away the object of the negotiation from the principle of humanity, the more likely it will be affected by the institutional red line, depending on the organization’s interpretation of the principle of humanity. Some organizations may have a narrow vision of their humanitarian mission, limiting the objects of the negotiation to lifesaving assistance; others may include a larger series of life-enhancing and rights-promoting objectives (e.g., education programs, income generation, preservation of the environment, etc.) as an intrinsic part of their humanitarian vision. The varying nature of the vision implies that negotiators from different organizations may have distinct red lines pertaining to the purview of the negotiation—some are happy to entertain a large scope of options, others are reluctant to engage beyond lifesaving activities.
Neutrality
Humanitarian organizations generally agree that their programs in conflict zones should maintain a neutral stand in the eyes of the parties to the conflict, implying that they should not be perceived as taking sides regarding the matters at the core of the conflict. This institutional requirement does not imply that the negotiators should never take sides on any issue prevailing in the conflict. The negotiator should indeed take the side of vulnerable groups targeted by a party to the conflict, such as victims of forced displacement or children recruited by an armed group, as the mission of the humanitarian organization is to take on the interests of the civilians affected by armed conflict. This neutral perception is difficult to maintain in situations where one of the main goals of a party to the conflict is to take aim at challenges to the life and dignity of a segment of the population (e.g., discriminatory policies against the occupied population, ethnic cleansing, acts of genocide, etc.). In such case, the humanitarian negotiator striving to negotiate in favor of the victims of these policies may consequently appear as having lost his/her neutrality in the specific circumstances.
Impartiality
The principle of impartiality is one of the most valued aspects of humanitarian programming. It implies that essential assistance should be given to those most in need without any form of discrimination. It is also one of the most widely interpreted principles, considering the implications it may have on the frontlines, where access is often restricted by the parties to prevent the distribution of assistance to a specific group (e.g., to certain persons in besieged areas). Humanitarian organizations struggle to maintain an impartial approach as logistical, operational, and political considerations may affect the distribution of assistance to the population in need. Tactical considerations may also interfere in the setting up of priorities for distribution. Recurring questions include:
- Should the humanitarian organization deliver assistance only to those it is granted access to, at the expense of others most in need to whom access is prohibited?
- Should the organization refrain from assisting the former until it can secure access to the latter (e.g., those in a nearby besieged area)?
- Are there forms of discrimination (age, gender, ethnicity, religion, security status (e.g., for families of foreign fighters)) in the delivery of assistance that are more acceptable or objectionable than others in times of emergency or in intense political environments, or is the only discrimination allowed based on lesser needs? Where should the red line be?
The role of the mandator is to set the terms of impartiality in the eyes of the hierarchy of the organization, understanding that significant pressure will be imposed on the frontline negotiators. The mandator should remain engaged in reviewing and discussing the terms of agreements that impose restrictions on the access and delivery to the most vulnerable groups as humanitarian organizations may easily be instrumentalized by the counterparts and fall prey to the discriminatory policies they have been charged to balance off.
Independence
The principle of independence is among the most debated features of humanitarian programming. It entails the ability of organizations to draw policies and make decisions based on their own assessments, values, and norms, free from undue external influences, particularly external political actors. While policies of organizations are developed in an organic manner within the social environment of each entity, the principle of independence implies that internal policy and managerial decisions are made within transparent processes and primarily serve the mission of the organization.
Humanitarian negotiators should, however, remain skeptical about their own claim of independence, especially in the eyes of their counterparts. Humanitarian organizations exist and are allowed to operate thanks to a myriad of multifaceted dependencies within their respective social, professional, and political environments. Negotiators can always argue that their organization is trying its best to maintain the integrity of its activities and limit the influence of external actors. They should not appear oblivious to the actual dependencies of their organization. Even the core principles of humanitarian action should be understood as the product of the social and political culture of mid-1960s Cold War Europe, which carries over a number of political assumptions regarding, in part:
- The prominence of international norms over local rules and customs;
- The role of foreign humanitarian actors as carriers of these norms and edicts;
- The recognition of the central role of governments in addressing humanitarian needs;
- A reverence toward national sovereignty enshrined in positive international law;
- A suspicion about the role of communities and individuals in designing the humanitarian response;
- A narrow perspective on the geopolitics of international relations, including an aversion to the contribution of so-called for-profit corporate actors.
These assumptions are not innate to the mission of aid organizations but are integrated into the culture of many traditional humanitarian actors without much critical sense of the interests served by these assumptions. Rather than entering into this contentious debate, many professionals equate the independence of organizations with a narrow interpretation focusing on the financial dependency of their organization instead of on the origins of their policy culture over a number of assumed values, norms, and political visions. Other superficial notions of independence include the composition of the governance or the cultural, religious, and ethnic makeup of the staff, all potentially seen as evidence of undue influence.