Mediating conflicts involving non-state armed groups proscribed by the United Nations Security Council presents difficult and distinct challenges. These groups are overwhelmingly listed for their association with Al-Qaeda or the Islamic State (ISIS). And while various other proscription regimes exist, such as the ‘terrorist’ lists of the European Union, the United States and others, the sanctions regime established by Security Council resolution 1267 (1999) against Al-Qaeda (originally the Taliban too, later put on a different list) and in 2015 expanded by resolution 2253 to include individuals and entities supporting ISIL, imposes binding international legal obligations on all states.

As recent research by Lundgren and colleagues on the impact of terrorist designations on mediation occurrence in civil wars has found, ‘proscription by international organisations such as the UN translates into systematically lower mediation probabilities’. While sanction regimes may not explicitly prohibit engagement, in practice they exert a chilling effect that deters mediation.

Yet engaging with designated groups is an absolute necessity in today’s armed conflicts. Armed groups designated by the United Nations exercise authority over many millions of people, with many of those in the Sahel, Somalia and Syria. (As of July 2023, the International Committee of the Red Cross (ICRC) estimated that some 64 million persons across the world lived in areas fully controlled by armed groups, and a further 131 million in areas fluidly controlled or contested by them.) Dialogue is needed to pursue achievable goals, such as securing humanitarian access to affected populations, and occasionally negotiating local ceasefires with other local or national actors to alleviate suffering, even if only temporarily. Such forms of engagement hold the potential to contain conflicts and eventually perhaps also open the door to more substantive discussions to address their resolution.

Mediators have found ways to work around obstacles presented by proscription – from local dialogue to humanitarian mediation and engagement by private mediation organisations. Looking ahead, further potential innovations include introducing the flexibility to allow for the lifting or suspension of sanctions on proscribed groups that no longer pose an international threat or show willingness to join and commit to political processes.

Factors affecting mediation with proscribed armed groups

Internal and international factors affect possibilities for mediation with armed groups proscribed under the 1267 sanctions regime.

Internal factors

Proscribed armed groups’ strategies, organisational structures, and resistance to the international order can constitute significant obstacles to successful mediation. Groups listed for their association with Al-Qaeda or ISIS generally oppose international law, which they see as a Western system that targets them, and take issue with the international state system underpinning it. They are also suspicious of external actors, including humanitarian organisations and foreign states. Moreover, groups function within interconnected networks of militants, making it challenging to discern their level of autonomy – from highly localised groups with minimal interaction with Al-Qaeda or ISIS core leaders, to groups that are deeply intertwined with them. Some groups govern large populations, like Al-Shabaab in Somalia or Islamic State West Africa Province (ISWAP) in north-east Nigeria, differing significantly from smaller, more clandestine insurgents like Al-Qaeda in the Indian Subcontinent (AQIS) or ISIS-M in the north of Mozambique, which have more opaque structures and leaderships.

However, as many listed groups have grown into larger organisations, some have also evolved politically. Some groups have, on occasion, exhibited a degree of accommodation toward the local population. For instance, Jama’at Nasr al-Islam wal Muslimin (JNIM) has in the past hinted at the possibility of negotiation with the Malian government, even though the feasibility of a political compromise remains uncertain. Additionally, there have been sporadic attempts at negotiations with Al-Shabaab and, in a more promising scenario, the former Al-Qaeda affiliate in Syria Hayat Tahrir al-Sham (HTS) has openly engaged in humanitarian negotiations and sought to gain international legitimacy.

International factors

Sanction regimes such as the 1267 Security Council regime create significant obstacles to conflict resolution, impeding mediation efforts by third parties and presenting numerous obstacles to negotiations. The legal requirements are typically narrow in scope, primarily emphasising travel bans, funding restrictions, and financial sanctions. But their practical consequences are much broader, especially the political stigma and the ‘chilling effect’ of proscription that makes mediators reluctant to engage with listed groups for fear of breaching sanctions or sustaining reputational damage. Even UN officials, who enjoy official immunity, feel their interaction with listed groups may come under scrutiny, for example being perceived as legitimising non-state armed groups, potentially undermining anti-terrorism efforts or denting international unity.

In the international community, there is also a prevailing assumption that engaging these groups is simply not feasible owing to the distinctive nature of their ideological commitments and transnational interconnections, setting them apart from insurgents fighting for social redistribution or forms of self-determination.

Both humanitarian organisations and mediators remain fearful of being accused of providing material support to ‘terrorists’. US legislation, for instance, criminalises the provision of ‘material support’ to those identified as foreign terrorist groups. The 2001 Patriot Act expanded the legal definition of ‘material support’ to include ‘expert advice or assistance’, ‘training’ and ‘services’, even when offered for wholly peaceable ends, an approach upheld by the Supreme Court in 2010.

More recently, however, the UN has introduced some reforms. UN Security Council resolution 2664 (2022) reinforced humanitarian exemptions to UN sanctions regimes, deciding that humanitarian activities in areas controlled by listed groups would not violate asset freezes. The resolution noted that this would also apply to the 1267 Al-Qaeda-ISIS sanctions regime for an initial period of two years.

In 2017, the UN prepared an internal aide mémoire on ‘Engaging with non-state armed groups for political purposes’ highlighting the benefits and drawbacks of such engagement, noting that it can improve understanding of armed groups, facilitate humanitarian coordination, and potentially help political processes. At the same time, the document also recognised that political engagement may not always be advisable or feasible and must be carefully evaluated on a case-by-case basis.

Adapting mediation approaches for proscribed groups

Mediators have developed a range of strategies for engagement with proscribed armed groups, usually operating beneath the threshold of formal political negotiations. Mediators’ objectives range from humanitarian access to regions controlled by proscribed groups, to facilitating negotiations for local and national ceasefires, or prisoner exchanges. Few engagements have resulted in formal peace processes. The peace deal signed between the US and the Taliban in early 2020 stands out as a ‘problematic exception’, followed as it was by the withdrawal of the US, the military takeover of Afghanistan by the Taliban, and collapse of political negotiations among Afghans.

Local negotiations

As discussed elsewhere in this volume, one of the most significant shifts in mediation has been recognition of the importance of local dialogue and mediation processes. Local communities engage in direct negotiations with armed groups, including proscribed groups, who control their area. Negotiations may be led by local figures of authority such as religious leaders, scholars, and businesspeople, and allow the community to resist some of the groups’ demands. In Northern Mali, for example, communities have, through religious dialogue, countered the content of some of the edicts imposed by JNIM; in parts of Somalia, they have used local Islamic jurisprudence to oppose Al-Shabaab’s insistence that women wear the facial veil. Talking with armed groups is risky. Communities have faced particular challenges with armed groups that have large numbers of foreign fighters, for example in parts of Afghanistan and Syria, as they tend to be more ideologically motivated and less responsive to local priorities.

Humanitarian mediation

Humanitarian organisations have had to adapt their approach to gain a better understanding of non-state armed groups and avoid being targeted by them. Large humanitarian organisations have created specialised offices to gather knowledge, build networks with actors close to armed groups, and negotiate security guarantees and conditions for their work directly or indirectly. In early 2022 the UN Office for the Coordination of Humanitarian Affairs established a dedicated Humanitarian Negotiations Unit for this purpose. Mediation to achieve political change can occur within humanitarian networks, relying on trust established in humanitarian interactions. But some humanitarian organisations express concern about the negative repercussions for their work and credibility if political engagement were to go awry.

The ICRC interacts with armed groups, including listed groups, to gain humanitarian access, but also to try to promote international humanitarian law (IHL). One ICRC strategy is to work with credible religious interlocutors to promote rules common to both Islamic law and IHL. The ICRC, for example, encouraged the establishment of a madrasa – an independent entity comprising religious scholars respected by the militants – in the Sahel to promote the protection of humanitarian workers by presenting fatwa on specific issues.

Private mediation

As noted elsewhere in this publication (see article by Teresa Whitfield), the emergence of private mediation organisations in contexts where proscription limits official engagement has been a significant innovation in the mediation field. These organisations use their expertise to engage in dialogue with proscribed groups by establishing trust, addressing local issues, and in some instances gradually scaling up their efforts towards more substantive negotiations. Private mediators also assist states and UN offices by conveying messages and exploring options for engagement that minimise negative political repercussions.

Private mediation organisations may work with trusted individuals who are close to or have links with militants, such as religious scholars and local communities, particularly during the initial phase of contact and exchange of messages. They can provide expertise to help proscribed armed groups navigate the complexities of conflict resolution processes – for example, in Syria, working with the former Al-Qaeda franchise previously called the Nusra Front (now HTS), which has expressed a desire to engage with the international community.

Flexibility in sanctions regimes as a pathway into mediation

While the primary leverage of terrorist listing is as a ‘stick’, to deter armed groups from certain actions, the ‘carrot’ of delisting groups from sanctions regimes is more controversial. No group associated with the 1267 sanctions regime has ever been delisted. However, there are viable paths toward potentially delisting certain groups, especially those that have distanced themselves from Al-Qaeda and ISIS. If engagement advances, shifting the narrative surrounding these groups could also be productive.

The first possible innovation would be to remove armed groups from the list if they no longer pose an international threat. One significant reform was the 2009 establishment of the Office of the Ombudsperson to the ISIL (Da’esh) & Al-Qaida Sanctions Committee, responsible for reviewing cases of listed individuals or entities that are no longer affiliated with these groups and delisting them. Although no armed groups have been delisted, it offers opportunities for listed groups to have their cases considered. Delisted groups would most likely remain on other state proscription lists, but delisting by the UN would send a signal that change is possible.

States could directly negotiate criteria for the conditional suspension of anti-terrorism regimes or some of their components with specific groups.

This and other changes could be taken forward in accordance with the UN Secretary-General’s recommendation, in his policy paper on ‘A New Agenda for Peace’ (July 2023), that sanctions ‘be regularly adjusted to ongoing political dynamics’. States could directly negotiate criteria for the conditional suspension of anti-terrorism regimes or some of their components with specific groups. This would strengthen their political leverage by offering conditional reciprocity for the groups’ adherence to specific demands – and could always be reversed if necessary. It should also be possible to extend ‘carve-outs’ similar to those introduced through UNSC resolution 2664 for providers of humanitarian assistance to organisations involved in mediation. This would reduce risks, operational costs and the chilling effects currently in place when mediators consider engagement with listed groups.

Beyond the legal issues associated with proscription, obstacles to mediation are often entwined with political stigma. Parts of this stems from the ‘terrorist’ label (used not by the UN but by many states including the US and UK) which contributes to the vilification of the group concerned and any engagement with it. Altering the language within specific contexts involving governments and armed groups could help reduce tensions and facilitate a path to dialogue. While many other factors were of course involved, experience in the peace process between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) between 2012 and 2016 illustrates the benefit of what Sophie Haspeslagh terms a ‘linguistic ceasefire’ as a means of de-vilification of the enemy and initiating negotiations. Here, the Colombian government acknowledged the existence of an armed conflict and moved away from the labelling of the insurgent movement as just ‘terrorists’.

A number of groups proscribed by the UN find themselves today in radically changed situations. The focus of larger groups overseeing civilians has shifted away from transnational attacks and towards the establishment of local authority. Conditional changes in anti-terrorism regimes to facilitate engagement and encourage behavioural change could improve the well-being of civilians living in the areas these groups control. Testimonies from third parties who have interacted with groups such as HTS in Syria and JNIM in the Sahel suggest that they can act with pragmatism and adhere to short-term agreements, although it is open to question to what extent this represents genuine change or tactical concession. Meanwhile, the weakening of the core leadership of both Al-Qaeda and ISIS might present an opportunity to try to engage some of their affiliates.

Persistence through adversity

It is a difficult period to make progress in mediating with proscribed armed groups. Military responses to militant armed groups are gaining a new momentum, with the effective replacement of French forces by the Russian private military company the Wagner group in the Sahel, a renewed offensive against Al-Shabaab in Somalia, and the war between Israel and Hamas in Gaza. Whatever short-term victories are achieved, sustainable solutions ultimately require political processes, and windows for negotiation may re-open in the future.

Given the obstacles to conventional political negotiations, it is necessary to think creatively and explore areas of potential compromise. Listed groups are not solely security threats to be neutralised; some are political actors with distinct projects and a degree of popular support. Sanctions can do more than punish and deter; if used flexibly they can also encourage the transformation of some of these groups.

Currently, this flexibility is not in evidence, and concrete measures to support delisting are blocked. But, given the number of civilians living under the jurisdiction of proscribed armed groups, this is an avenue that needs serious exploration.