Understanding the internal protection alternative (Part I)

This is the first post in a two-part series on the internal protection alternative (IPA) based on Jessica Schultz ’s new book on the topic. The two blog posts were first posted on “The EU Immigration and Asylum Law and Policy” blog, and are re-posted here. It starts with a case study on Norway and follows up with a post reflecting on refugee law’s ‘surrogate’ role which states use to justify IPA practice.

By: Jessica Schultz, Researcher and Senior Adviser, CMI

A post mortem on the demise of the reasonableness requirement: The IPA in Norway

It might surprise some readers that Norway, normally viewed as a human rights stalwart, is at the forefront of efforts to push the boundaries of refugee law in a restrictive direction. Like other European States, Norway responded to the influx of refugee claims in 2015 with a barrage of policies intended to deter and divert refugee flows. Border controls, safe third country transfers, time limits on residence, and restricted family reunification were among the measures adopted to ensure that Norway’s policies at a minimum were not more generous than those of its neighbors.  

In one area, however, Norway’s restrictions surpassed those of other states: it lowered the threshold for applying the ‘internal protection alternative’ (IPA) as a basis for denying refugee claims. IPA practice is premised on the view that refugee law comes into play when the claimant’s country of origin cannot or will not provide protection itself. If a domestic alternative to asylum abroad is accessible, safe, and reasonable, UNHCR and many states accept that a refugee claim may be refused.

Following amendments to the Immigration Act passed in 2016, this last condition, that relocation is ‘reasonable’, no longer applies. In the government’s view, the principle of non-refoulement only requires that protection against persecution is available in a return area. If it is, refugee status need not be recognized – no matter how harsh the consequences may be. Only one other jurisdiction – Australia – excludes reasonableness from the IPA assessment.

For reasons described here, ‘reasonableness’ (or proportionality) is widely-recognized as a legal requirement for application of the IPA limit. So what explains Norway’s outlier position? This post reviews the historical and political roots of Norway’s current IPA practice, including the claim that the right to refugee status is subject to a degree of state discretion. I will also discuss, as an example, the consequence of Norway’s position for unaccompanied Afghan minors and implications for other areas of refugee law.

Roots of the reasonableness test in Norway

As with other states in Northern Europe, IPA practice in Norway gained momentum in the 1990s, and evolved largely in response to claims of persecution by non-state actors. Consideration of the IPA in these early years was exceptional and informal in nature, and justified with reference to paragraph 91 of UNHCR’s 1979 Handbook. Although the 1988 Immigration Act made no mention of an IPA limit, the Ministry of Justice’s Asylum Guidelines in 1998 formally addressed, for the first time, the concept’s relation to refugee status:

In cases where the applicant will be threatened by non-state groups or individuals in certain areas of the home country, protection in Norway (either in the form of asylum or a residence permit) is normally refused if he or she will be secured protection in other (for example government-controlled) areas of the home country.

The Guidelines offered an exception when, ‘after a holistic assessment of all aspects (health issues, impact on children, links to Norway), there may be cases in which the claimant should not be compelled to relocate elsewhere in the home country despite the possibility of securing protection there.’ Notably, the ‘aspects’ mentioned depart from the ‘reasonableness’ criteria set out by UNHCR. Instead, they refer back to a separate provision of the Immigration Act concerning residence on humanitarian grounds.

From the beginning, then, the reasonableness test was deemed a matter of state discretion, to be linked to whatever criteria domestic authorities deemed to be most compelling.  The consequence was an overly narrow reasonableness assessment (excluding issues like the right to education, freedom of religion and past persecution) and a lower standard of judicial review.

Drafters of the 2008 Immigration Act aimed to realign the reasonableness test with UNHCR’s Guidelines. The Immigration Regulations that followed, however, reasserted the link between the reasonableness assessment and criteria for residence on strong humanitarian grounds. Jurisprudence remained split on the proper reference point until the issue was finally brought to the Norwegian Supreme Court in 2015.

The Supreme Court’s Internal Flight judgment

The Internal Flight case involved an Afghan family refused asylum on the basis of an IPA in Kabul. The parents were originally from Ghazni province, but had spent many years in Iran where their two daughters were born. The Board of Immigration Appeals (UNE) had concluded that their claim for asylum under the Refugee Convention was not credible, but that the family was nonetheless protected on grounds of the security situation from return to their area of origin.  

The question was then: could the family safely and reasonably relocate to another part of Afghanistan? The claimants argued that the IPA test should be interpreted in line with UNCHR´s guidance, in accordance with the intention of lawmakers. By linking the reasonableness criteria with discretionary factors instead, the Immigration Regulations overstepped their statutory basis. The Court, however, declined to rule directly on this issue. Instead, it simply confirmed that the Immigration Regulations, and the specific interpretation they codify, have a legal basis in the Immigration Act.

The Court’s refusal to address the actual criteria reflects a belief that reasonableness is not integral to the IPA concept. Why? One clue is found in Judge Utgård’s opinion, where he harkened back to the Supreme Court’s Abdi judgment from 1991. In that case, involving a sur place claim arising from the person’s voluntary activities in Norway, the Court distinguished between core areas covered by the Convention and periphery issues belonging to a state’s discretion. The subjective sur place problem occupied this peripheral zone: although Abdi was protected from refoulement, he could still be refused refugee status.

Referring to the Abdi judgment, Utgård wrote that the state has ‘broad liberty’ to regulate who has the right to refugee status in Norway. In Utgård’s view, the parameters of non-refoulement regulated by Article 33 (1) of the Geneva Convention only require that the ‘return area is accessible and safe.’ Considerations of reasonableness, on the other hand, occupy a peripheral space that can be regulated as the State sees fit. Even though Utgård’s position was obiter dictum, it was picked up by the Ministry of Justice and Security in its proposal not long afterwards to remove the reasonable conditions from the IPA test: ‘(t)he assessment here is linked to a core area for the Convention, which is protection against return to an area where the foreigner has a well-founded fear of persecution’ (emphasis added).

The ‘refugee crisis’ and removal of the reasonableness requirement in IPA practice

This proposal came as part of a package of measures announced in December 2015. According to the Ministry, the reasonableness test was essentially problematic: it had unclear scope and content; it opened for discretionary assessments that were difficult to structure; and it lead to unequal treatment of similar cases. Furthermore, the Ministry curiously claimed, ‘it is undisputed that international law does not require states to operate with the reasonableness criteria.’ In support of this statement it referred to Utgård’s minority opinion and incorrectly cited Professor Zimmermann´s well-known Commentary on the Refugee Convention. The Ministry also wrote that the ‘reasonableness’ requirement in the IPA provision of the EU Qualification Directive (Article 8) referred only to the extreme humanitarian conditions which have anyway been read into Article 3 ECHR by the ECtHR. In reality, Article 3 jurisprudence doesn’t even capture the requirements of ‘effective protection’ much less reasonableness for IPA purposes.  

Parliament approved the proposed amendment, which came into effect on October 1, 2016. The current IPA provision states that:

“[t]he right to be recognized as a refugee according to paragraph 1 does not pertain if the foreigner can receive effective protection in other parts of the country of origin than that area from which the claimant has fled”.

Consequences for refugee claimants: the case of Afghan minors

It is hard to measure the impact of the change in IPA practice on rates of recognition in Norway. One reason is that the IPA is often used as a subsidiary reason for refusing refugee status, when other aspects of the claim are unclear. Decisions typically reason that ‘even if’ the claimant is telling the truth, or the risk of persecution indeed exists, he or she could still safely relocate to a city or region within their country of origin. Therefore, statistics on the formal grounds for rejection do not capture the influence of IPA reasoning.

We do know, however, that changes to IPA practice has affected the rates of refugee status for some vulnerable groups. Families with children, single women, persons with serious illnesses and others are no longer recognised as refugees  because return to internal displacement would be unreasonable. Instead, if they are lucky, they receive a more contingent leave to remain for humanitarian reasons. The IPA rules have also affected recognition rates for unaccompanied minors (UAMs), most of whom come from Afghanistan.  Before 2016, UAMs were exempt from IPA practice since the absence of a caregiver would automatically render return ‘unreasonable’. This is no longer the case. Removal of the reasonableness requirement has resulted in the expanded use of temporary residence visas that expire at the age of 18. At that point these youths may be returned to a city (Kabul) increasingly recognized as profoundly unsafe and to a country those born in Iran or Pakistan have never even lived in.

Following a regulation change earlier in 2018 aimed at softening these harsh effects, decision-makers were instructed to review these cases to consider, among other things, whether the minor would have a network and/or resources to get along in Kabul.  These vulnerability criteria covered only a fraction of the factors relevant to a reasonableness analysis. Even so, the Immigration Directorate determined that less than half of the youths who applied met them. Many others, living precariously in Paris and elsewhere, did not meet the deadline for having their claim reconsidered.

Consequences for other dimensions of refugee law: cessation of refugee status

The concept of a refugee set out in the 1951 Refugee Convention is being squeezed not only in terms of its spatial dimension, but also its temporal one. As the Ministry of Justice reminds us, ‘international protection is subsidiary to protection in one’s own country’. In the next post, I will unpack this claim. For the time being, however, it begs the question: if refugee status can be refused on the basis of an IPA, can it also be revoked when an IPA becomes available?  In Norwegian practice, the answer appears to be positive.

In the view of the Ministry of Justice, the need for protection no longer exists when some area of the home country is safe. It has argued that implementing the IPA in these cessation cases ensures ‘equal treatment’ for all refugees from the same country, no matter what part they come from. This position not only conflates return to one’s previous residence with prolonged (domestic) displacement, but it diverges from requirements under the Refugee Convention. Article 1C (5) permits states to withdraw refugee status if, among other things, circumstances that gave rise to that status no longer exist. As the  UNHCR explains, “the changed situation must address the causes of displacement. Further, changes must be fundamental in nature, so that the refugee ‘can no longer…continue to refuse’ home state protection”. Referral to an IPA undermines both these guarantees.

Conclusion

In Norwegian practice, the focus of asylum authorities is not on the risk of persecution but on the possibility of protection somewhere, no matter how unreasonable the consequences are for the claimant. Even the threshold of  ‘effective protection’ is undermined by narrow interpretations of who can provide it, how long it may last and how big the area in which it exists needs to  be. The dynamics set in motion in 2015 create a dangerous precedent in a region where national authorities are anxious to exploit all possible arguments for refusing claims to refugee status.

Do you speak humanitarian?

By Simon Reid-Henry, Associate Professor in the School of Geography at Queen Mary, University of London & PRIO affiliate

I’m delighted to be invited to the launch of round two of the Norwegian Centre for Humanitarian Studies today in Oslo, with the establishment of a new network on humanitarian efforts.

There are now over half a million humanitarian professionals and between 2,500 and 4,500 organisations. This according to the event plenary – “Unravelling Humanitarian Concepts” –  delivered by Doris Schopper, the director of CERAH in Geneva. Over the past few years, Schopper has been leading an initiative to develop an online “humanitarian encyclopaedia” to try and bring some coherence to this congeries of actors (you can read more about their work here). But does the humanitarian sector actually need more ‘coordinating’ and more uniformity, as we are often told? Well, yes and no. As Schopper points out, there is today more than ever before an almost unmanageable diversity of cultural, disciplinary and organisational backgrounds within the humanitarian sector (just compare the leviathan like ICRC with the niche ‘pop up’ outfits that have arisen in response to the refugee crisis). Her point is that humanitarianism lacks a common “language” by which means these actors might more usefully “communicate”. 

But diversity is key too. In a way that is what the humanitarian sector best does: it fills in the cracks. And to ensure that this effort to find a common humanitarian language doesn’t ultimately descend into the usual tropes of global ‘governance’ I think also this felt need for unification and professionalisation needs resisting to some degree. For example, Schopper points out that there are 63 different definitions of resilience. This is a problem, she suggests. Arguably the greater problem here, however, is that resilience, as a meta concept, is so broad and influential that it can sustain 63 overlapping definitions (John Rawls and Martha Nussbaum be warned). 

For my money, one of the more interesting things to come from Schopper’s talk was the way to which (a) disciplinary and institutional backgrounds shape the extent to which people agree on basic concepts (anyone who has done interdisciplinary research will confirm that!); and (b) that the sources of people’s conceptual knowledge are worryingly – and conversely – very similar. Over 35 per cent of respondents in the surveys that Schopper and her colleagues undertook in the process of building their encyclopedia, for example, took their understanding of the word “humanity” from Wikipedia (Humanity Journal’s editorial collective also be warned). That’s another away goal for Wikipedia contra the academy. 

Surely the more salient point here is that this conceptual confusion – a “lack of coherence” and “blurred messages” as Schopper puts it, or “boundary work” as those schooled in Science Studies would more likely say – is precisely what the humanitarian sector does want. It allows them to get on with their own work as they see fit, not as others see fit: least of all those they seek to assist. Interestingly, in a section on ‘salient concepts’ used by humanitarian actors there was no mention at all of concepts like ‘care’ or ‘assistance’ in the category of most frequently used concepts. Rather, everything was about organisational good practice and ‘accountability’. No surprises there, perhaps – but this is revealing all the same.

As one of the audience members observed at this point, this is also a powerful reminder of the power of institutions to shape the way that knowledge is used – a point my earlier work on institutions and innovation has emphasised. And it raises, in turn, the problem of intellectual language. An example of this, and it also cropped up in the discussion, is the following: is what we are after in humanitarianism more “convergence” or more “understanding”? The former is corporate prattle mostly; the latter is more socially-enframed – and stronger for it. In other words, the question is less ‘who speaks humanitarian?’ but ‘what they are speaking when they do so?’: what is the humanitarian agenda in other words? This was apparent from another question, which raised the point that the emergence and contestation of concepts is not always an intellectual but frequently an ideological process. Both practical issues (one’s institutional standing, the political associations of certain terms) and political matters (e.g. neoliberal demands for ‘efficiency’ or even geo-strategy) play a role. As the audience member added, you can define “civil society” however you want, but a Russian state interlocutor will still likely frown on the term from the get-go. 

Nonetheless these are some important findings here and I think this work is going to be a touchstone reference for debates over humanitarianism going forward (it certainly adds to recent scholarly discussions like those in Past & Present on the matter of humanitarian historiography). If you want to find out more you can do so here. The work is based on content analysis of an impressive 478 Strategy and general document publications between 2005 and 2017. One of the things they hope to come out of it is a Humanitarian Encyclopaedia. I can see how that sort of intellectual “field guide” could be extremely useful. Then again, the politics of conceptual knowledge goes somewhat beyond this. The fuller work is available here: at HumanitarianEncyclopedia.org and you can follow updates at @HumanEncyclo.

This blogpost was first posted on the authors’ own blog:
https://www.simonreidhenry.com/blog/

What Shapes Which Migration Flows We Study?

Written by Marta Bivand Erdal, Research Professor, PRIO & Board Member, NCHS

How might declonising the academy intersect with academic everyday practice, for instance in the context of migration studies? As efforts to decolonise the academy are gaining force, not least in universities in the United Kingdom, such as at the School of Oriental and African Studies, questions about how this timely intellectual scrutiny can or ought to affect academic everyday practice should be pondered. Especially in relation to how the ‘decolonise academia’ initiatives help foster greater knowledge and understanding, thus stimulating and furthering academic inquiry.’

Map of the British Empire from the India & Colonial Exhibition in London, 1886. PHOTO: The British Library

When we discuss decolonising the academy, we are talking about power, and more specifically power hierarchies. So, we are discussing unevenly distributed power when it comes to defining knowledge, which inevitably leads to skewed knowledge, to incomplete knowledge.

Empires in the plural

We know of the British empire, and the colonial enterprises of the French, Spanish or Portuguese, and later on the Americans. In the context of Norway, we also recognise the more complex imperial histories involving both the Norwegian state’s approach to the indigenous Sami populations, and Norway’s union first with Denmark, then Sweden, leaving Norway an independent state only from 1905. Yet, there is still reason to expand on this plurality of empires – historically and geographically.

References to Joseph Conrad’s ‘The Heart of Darkness are frequent, especially in the literary quarters of ‘post-colonial’ theory, including Edward Said. Conrad’s novel was published in 1899, and was at the time a quite radical critique of imperial practice, drawing on Conrad’s own experience as a sailor in the British empire. The book later received criticism for dehumanizing descriptions of Africans in what was then the Belgian colonised Congo, by Nigerian author Chinua Achebe, and not without reason.

However, my point with drawing attention to Conrad’s ‘Heart of Darkness’ is to underscore the need for scrutiny of the roles of empires in the plural – where Conrad serves as a useful example. He was born in Poland, at a time when the country did not exist on the European map, but rather had been divided into three and absorbed among other by Russia. He was born into a family where both his mother and father were active in the Polish underground as anti-tsarists activists. His parents died early and he left Poland at 16.

How is this relevant for a discussion on decolonising the academy taking place in Norway? First, in recognizing the many different empires and colonisations which exist historically and geographically. Notably in relation to Norway’s neighbour, Russia and its region. Second, to critically assess the role of language in knowledge production and communication, also in relation to colonisation. For, how much do we know, today in Norway, of knowledge production and academic exchange, in Russia, or in the larger region which was under heavy influence of the Soviet Union until less than 30 years ago? And if we are not well-versed here – why not? And by extension; which imperialisms come to matter in efforts to decolonise the academy, and which perhaps do not?

Which international migration flows are studied, and why these?

Whilst the interest in the academic study of international migration is growing, the interest in international migration in Russia and its neigbouring countries is disproportionately small, that is, in the English-language migration studies literature. This is despite the fact that international and regional migration in Russia and its neighbouring countries, by any measure, is a huge contemporary phenomenon. Why? And does this not intersect with issues of defining which knowledge is of interest and relevance?

In migration studies more broadly, questions of power of definition and of colonial legacies, frequently come to the fore. Not least in relation to race. But also in the ways in which colonial legacies matter for migration management policies around the world. Despite the fact that global interconnections and interdependencies are obvious in migration studies, there are unresolved issues and dilemmas insufficiently reflected upon. For instance, in relation to who is an ‘insider’ or an ‘outsider’ and how researcher positionality impacts findings. It continues to be a challenge that rigid boundaries between “the majority” and “minorities” are taken at face value, obscuring the multiple ways in which power-hierarchies matter in processes of knowledge production and knowledge communication. These are fundamental questions, where matters of power are at the core.

For justice, for knowledge

Finally, from the perspective of research being conducted at an institute such as the Peace Research Institute Oslo (PRIO), what might the practical implications of reflecting on decolonising the academy be? As a start, recognising that there can be no peace without justice, and that this, arguably, ought to also involve equitable processes of knowledge production. Here, the obvious backdrop is the extreme imbalance in wealth, whereby academics based in Norway, for all the challenges which exist here, with temporary contracts, among other, are super-privileged in the global context. How then to adopt academic everyday practices which can in anyway contribute to processes of knowledge production that are more equal?

One place to look, is to the ways in which we engage in research collaboration with international partners. Who do we work with and how? Whatever the structural constraints which are there – in the short term – are there things which can be done in order to make such research collaboration practices more equal? And within this – how do we productively engage with conceptions of the world which are – or appear to be – fundamentally different to our own? A first basic step is to recognise that we need to ask ourselves these questions, and to invest time and energy in doing so.

By engaging actively in academic everyday practices that are built on principles of co-production of knowledge – however that translates in different fields – we not only do our small bit to contribute to more equal knowledge production, hence to justice. We also contribute to knowledge production, which through being more equal, can contribute to a global body of knowledge that is more complete.

This blog post was orginally posted on the PRIO blog

Aid Agencies Can’t Police Themselves. It’s Time for a Change

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The spreading “Oxfam scandal” will affect the entire humanitarian sector painfully. It brings into plain sight what observers of the internal workings of NGOs have known for a long time: NGOs have an organisational reflex of banning outsiders from their kitchen, and keeping their potentially dangerous secrets hidden.

Abuses of power are common in any situation where vulnerable people depend on powerful service providers. But the key question that still haunts this sector is how organisations should deal with the rotten apples – the abusers of power. Even though Oxfam has taken earlier abuses and misconduct seriously, the organisation has acted alone and resorted to internal measures in dealing with the problem.

The case of the Oxfam country director hosting sex parties in the staff house in Haiti after the 2010 earthquake – perhaps it is only the tip of a rapidly expanding iceberg.

What matters is how organisations respond to such incidents. Have trespassers been sanctioned, and was the harm done redressed? Were the disciplinary procedures transparent, and have efforts been made to avoid the repetition of these events?

New Mapping of Children Affected by Armed Conflict

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On February 16 to 18, decision-makers from all over the world came together to discuss current and future security challenges at the Munich Security Conference (MSC), which has become the major global forum for discussion of security policy. At the conference, Save the Children will launch its new report The War on Children: Time to End Grave Violations against Children in Conflict. The report is based on a new mapping of children in armed conflict conducted at the Peace Research Institute Oslo (PRIO).

Our findings are quite alarming: we find that more than half the world’s children are living in conflict-ridden countries, and furthermore, one in six children live in close proximity to where the actual violence occurs.

Children are Hard Hit by Conflict

Children are often and severely affected by armed conflicts. We are constantly reminded of this through pictures and news reports from the ongoing conflicts in Syria, Nigeria, Yemen, and Somalia. The UN has defined six ‘grave violations’ of children in armed conflict. These include killing and maiming, recruitment of child soldiers, sexual violence, abduction, attacks on schools and hospitals, and denial of humanitarian access. In addition to being directly exposed to killing, physical harm, and illegal recruitment, children also suffer more indirectly from the consequences of war. Children living in conflict-affected areas often miss out on education, lack access to clean water, and suffer from mortality risks due to illnesses and malnutrition, or lack of vaccines and medical care such as basic maternity services.

The Knowledge Gap

Since the mid-1990s, the issue of war’s impact on children has been high on the international agenda. Despite this, we do not have systematic and detailed information on the numbers of children that are killed in armed conflict worldwide. However, we do have quite detailed information about where, within countries, that conflicts take place. Hence, we can say something more certain about the number of children that live in conflict-affected areas, or ‘conflict zones’.

Combining detailed information on the location of violent conflict events from the Uppsala Conflict Data Program (UCDP) and population data from CIESIN (2005) and the UN (2017), we have been able to estimate the number of children that live in close proximity (defined as 50 km or less) to where conflict events are taking place.

Key Findings

The main findings from our mapping exercise include the following:

  • In 2016, approximately 1.35 billion children under the age of 18 (59% of all children) were living in a conflict-affected country.
  • In 2016, approximately 357 million children (that is, one in six) were living in a conflict zone.
  • In 2016, approximately 165 million children were living in high intensity conflict zones, i.e. conflicts with more than 1,000 battle-related deaths.
  • The number of children living in conflict zones has been steadily increasing since the year 2000, although the number of countries with armed conflicts has remained quite stable during the same period.
  • Asia is the world region with the highest total number of children living in conflict zones.
  • The Middle East is the world region in which a child has the highest probability of living in a conflict zone.

Policy Recommendations

Our initial mapping of children in conflict-affected areas has several implications for policy and further research.

First, the actors who are actively working to address and reduce the impact of war on children need to support the generation of more systematic knowledge on the various ways in which children are affected by armed conflict, both directly – through killing and maiming, child soldier recruitment, and sexual exploitation, and indirectly – through adverse health effects. In short, more resources should be invested in generating and managing data related to children and armed conflict across time and space.

Second, there is of course an urgent need to protect the more than 350 million children that live in conflict zones today. Concrete recommendations in this regard include the following:

  • Supporting peacekeeping operations in conflict-affected areas.
  • Designing and upholding credible sanctions against armed groups in conflicts to prevent child soldiering and the use of sexual violence against children.
  • Increasing aid to conflict-ridden countries in order to rebuild infrastructure and health systems.

This blog post was orginally posted on the PRIO blog. You can read the full PRIO background report here. For a shorter overview, read our PRIO Policy Brief.

For more information, read Save the Children’s full report on The War on Children.

From Principle to Practice: Humanitarian Innovation and Experimentation

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Humanitarian organizations have an almost impossible task: They must balance the imperative to save lives with the commitment to do no harm. They perform this balancing act amidst chaos, with incredibly high stakes and far fewer resources than they need. It’s no wonder that new technologies that promise to do more with less are so appealing.

By now, we know that technology can introduce bias, insecurity, and failure into systems. We know it is not an unalloyed good. What we often don’t know is how to measure the potential for those harms in the especially fragile contexts where humanitarians work. Without the tools or frameworks to evaluate the credibility of new technologies, it’s hard for humanitarians to know whether they’re having the intended impact and to assess the potential for harm. Introducing untested technologies into unstable environments raises an essential question: When is humanitarian innovation actually human subjects experimentation?

Humanitarians’ use of new technologies (including biometric identification to register refugees for relief, commercial drones to deliver cargo in difficult areas, and big data-fueled algorithms to predict the spread of disease) increasingly looks like the type of experimentation that drove the creation of human subjects research rules in the mid-20th century. In both examples, Western interests used untested approaches on African and Asian populations with limited consent and even less recourse. Today’s digital humanitarians may be innovators, but each new technology raises the specter of new harms, including biasing public resources with predictions over needs assessment, introducing coordination and practical failures through unique indicators and incompatible databases, and significant legal risks to both humanitarians and their growing list of partners.

For example, one popular humanitarian innovation uses big data and algorithms to build predictive epidemiological models. In the immediate aftermath of the late 2014 Ebola outbreak in West Africa, a range of humanitarian, academic, and technology organizations called for access to mobile network operators’ databases to track and model the disease. Several organizations got access to those databases—which, it turns out, was both illegal and ineffective. It violated the privacy of millions of people in contravention of domestic regulation, regional conventions, and international law. Ebola was a hemorrhagic fever, which requires the exchange of fluids to transmit—a behavior that isn’t represented in call detail records. More importantly, the resources that should have gone into saving lives and building the facilities necessary to treat the disease instead went to technology.

Without functioning infrastructure, institutions, or systems to coordinate communication, technology fails just like anything else. And yet these are exactly the contexts in which humanitarian innovation organizations introduce technology, often without the tools to measure, monitor, or correct the failures that result. In many cases, these failures are endured by populations already under tremendous hardship, with few ways to hold humanitarians accountable.

Humanitarians need both an ethical and evidence-driven human experimentation framework for new technologies. They need a structure parallel to the guidelines created in medicine, which put in place a number of practical, ethical, and legal requirements for developing and applying new scientific advancements to human populations.

The Medical Model

“Human subjects research,” the term of art for human experimentation, comes from medicine, though it is increasingly applied across disciplines. Medicine created some of the first ethical codes in the late 18th and early 19th centuries, but the modern era of human subject research protections started in the aftermath of World War II, evolving with the Helsinki Declaration (1975), the Belmont Report (1978), and the Common Rule (1981). These rules established proportionality, informed consent, and ongoing due process as conditions of legal human subjects research. Proportionality refers to the idea that an experiment should balance the potential harms with the potential benefit to participants. Informed consent in human subjects research requires that subjects understand the context and the process of the experiment prior to agreeing to participate. And due process, here, refers to a bundle of principles, including assessing subjects’ need “equally,” subjects’ ability to quit a study, and the continuous assessment of whether an experiment balances methods with the potential outcomes.

These standards defined the practice of human subjects research for the much of the rest of the world and are essential for protecting populations from mistreatment by experimenters who undervalue their well-being. But they come from the medical industry, which relies on a lot of established infrastructure that less-defined industries, such as technology and humanitarianism, lack, which limits their applicability.

The medical community’s human subjects research rules clearly differentiate between research and practice based on the intention of the researcher or practitioner. If the goal is to learn, an intervention is research. If the goal is to help the subject, it’s practice. Because it comes from science, human subjects research law doesn’t contemplate that an activity would use a method without researching it first. The distinction between research and practice has always been controversial, but it gets especially blurry when applied to humanitarian innovation, where the intention is both to learn and to help affected populations.

The Belmont Report, a summary of ethical principles and guidelines for human subject research, defines practice as “designed solely to enhance the well-being of a client or patient and that have a reasonable expectation of success,” (emphasis added). This differs from humanitarian practice in two major ways: First, there is no direct fiduciary relationship between humanitarians and those they serve, and so humanitarians may prioritize groups or collective well-being over the interests of individuals. Second, humanitarians have no way to evaluate the reasonableness of their expectation of success. In other words, the assumptions embedded in human subjects research protections don’t clearly map to the relationships or activities involved in humanitarian response. As a result, these conventions offer humanitarian organizations neither clear guidance nor the types of protections that exist for well-regulated industrial experimentation.

In addition, human subjects research rules are set up so that interventions are judged on their potential for impact. Essentially, the higher the potential for impact on human lives, the more important it is to get informed consent, have ethical review, and for subjects to extricate themselves from the experiment. Unfortunately, in humanitarian response, the impacts are always high, and it’s almost impossible to isolate the effects generated by a single technology or intervention. Even where establishing consent is possible, disasters don’t lend themselves to consent frameworks, because refusing to participate can mean refusing life-saving assistance. In law, consent agreements made under life-threatening circumstances are called contracts of adhesion and aren’t valid. The result is that humanitarian innovation faces fundamental challenges in knowing how to deploy ethical experimentation frameworks and in implementing the protections they require.

First Steps

The good news is that existing legal and ethical frameworks lay a strong foundation. As Jacob Metcalf and Kate Crawford lay out in a 2016 paper, there are significant enough similarities between biomedical and big data research to develop new human subjects research rules. This January, the United States expanded the purview of the Common Rule to govern human subjects research funded by 16 federal departments and agencies. Despite their gaps, human subjects research laws go a long way toward establishing legally significant requirements for consent, proportionality, and due process—even if they don’t yet directly address humanitarian organizations.

Human rights-based approaches such as the Harvard Humanitarian Initiative’s Signal Code go further, adapting human rights to digital humanitarian practice. But, like most rights frameworks, it relies on public infrastructure to ratify, harmonize, and operationalize. There are proactive efforts to set industry-focused standards and guidelines, such as the World Humanitarian Summit’s Principles for Ethical Humanitarian Innovation and the Digital Impact Alliance’s Principles for Digital Development. And, of course, there are technology-centric efforts beginning to establish ethical use standards for specific technologies—like biometric identification, drone, and big data—that offer specific guidance but include incentives that may not be relevant in the humanitarian context.

That said, principles aren’t enough—we’re now getting to the hard part: building systems that actualize and operationalize our values. We don’t need to decide the boundaries of innovation or humanitarianism as industries to begin developing standards of practice. We don’t need to ratify an international convention on technology use to begin improving procurement requirements, developing common indicators of success for technology use, or establishing research centers capable of testing for applicability of new approaches to difficult and unstable environments. A wide range of industries are beginning to invest in legal, organizational, and technological approaches to building trust—all of which offer additional, practical steps forward.

For humanitarians, as always, the stakes are high. The mandate to intervene comes with the responsibility to know how to do better. Humanitarians hold themselves and their work to a higher standard than almost any other field in the world. They must now apply the same rigor to the technologies and tools they use.


This post originally appeared on the blog of Stanford Social Innovation Review.

End impunity! Reducing conflict-related sexual violence to a problem of law

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In our recent article, End impunity! Reducing conflict-related sexual violence to a problem of law, we question the taken-for-granted center-stage position of international criminal justice in international policy responses to conflict-related sexual violence. We address how central policy and advocacy actors explain such violence and its consequences for targeted individuals in order to promote and strengthen the fight against impunity. With the help of apt analytical tools provided by framing theory, we show how the UN Security Council and Human Rights Watch construct a simplistic understanding of conflict-related sexual violence in order to get their message and call for action across to wider audiences and constituencies – including a clear and short causal chain, and checkbox-solutions. The narrowing down of complexity serves important purposes, in that it brings with it opportunities for action in a field within which ‘the urge to do something’ has gained a particular stronghold.

However, by framing conflict-related sexual violence as first and foremost a criminal – and individualized – act, the multilayered, complex, social, and collective phenomenon of harm that it also is, is increasingly peeled away from understandings of the problem. This narrative about conflict-related sexual violence and its solution resonates and gains support because of its simplicity. It reduces sexual violence into clear-cut categories of rational, individual and evil perpetrators and powerless, broken victims – ideal causality on the one hand, massive suffering in need of legal catharsis on the other; in short, to a problem against which something can be done. Individualization of guilt corresponds poorly, however, to the collective crime and structural explanations that academic theories about conflict-related sexual violence underscore. Thus, the cost of the simplistic narrative is that the phenomenological understanding gets separated from its enabling social structures, including the collective out of which the phenomenon arises. Moreover, the deterrence rationale upon which the call for criminal prosecutions is based carries limited empirical weight.

We therefore ask for a more precise recognition of what criminal law can and cannot do with conflict-related sexual violence, and hold that the problem with the focus on ending impunity is not that it is an irrelevant task, but that it is not the solution its proponents claim it to be. Paralleling criticism of carceral feminism domestically, we see a need for greater attention to the political, economic and gendered inequalities and structures within which sexual violence take place. Conflict-related sexual violence is indeed part of a repertoire of illegitimate warfare, and a reaction to the chaotic, desperate and demoralizing experiences that war brings with it, but it is also the result of gendered hierarchies, subordination, and poverty, and a continuum of violence that transgresses war and peace.

It is important to recognize the narrative processes at work that keep favoring criminal law – and to question whose voices and what stories matter, what reality “fits,” and what complexities are lost. This is important not because criminal law is inherently bad – but because conflict-related sexual violence is not a problem that can be exclusively solved in the court room.

This post first appeared on the blog of Law & Society Review

Humanitarian experimentation

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Humanitarian actors, faced with ongoing conflict, epidemics, famine and a range of natural disasters, are increasingly being asked to do more with less. The international community’s commitment of resources has not kept pace with their expectations or the growing crises around the world. Some humanitarian organizations are trying to bridge this disparity by adopting new technologies—a practice often referred to as humanitarian innovation. This blog post, building on a recent article in the ICRC Review, asserts that humanitarian innovation is often human experimentation without accountability, which may both cause harm and violate some of humanitarians’ most basic principles.

While many elements of humanitarian action are uncertain, there is a clear difference between using proven approaches to respond in new contexts and using wholly experimental approaches on populations at the height of their vulnerability. This is also not the first generation of humanitarian organizations to test new technologies or approaches in the midst of disaster. Our article draws upon three timely examples of humanitarian innovations, which are expanding into the mainstream of humanitarian practice without clear assessments of potential benefits or harms.

Cargo drones, for one, have been presented as a means to help deliver assistance to places that aid agencies otherwise find difficult, and sometimes impossible, to reach. Biometrics is another example. It is said to speed up cumbersome registration processes, thereby allowing faster access to aid for people in need (who can only receive assistance upon registration). And, in the case of responding to the 2014 outbreak of Ebola in West Africa, data modelling was seen as a way to help in this response. In each of these cases, technologies with great promise were deployed in ways that risked, distorted and/or damaged the relationships between survivors and responders.

These examples illustrate the need for investment in ethics and evidence on the impact of development and application of new technologies in humanitarian response. It is incumbent on humanitarian actors to understand both the opportunities posed by new technologies, as well as the potential harms they may present—not only during the response, but long after the emergency ends. This balance is between, on the one hand, working to identify new and ‘innovative’ ways of addressing some of the challenges that humanitarian actors confront and, on the other hand, the risk of introducing new technological ‘solutions’ in ways that resemble ‘humanitarian experimentation’ (as explained in the article). The latter carries with it the potential for various forms of harm. This risk of harm is not only to those that humanitarian actors are tasked to protect, but also to humanitarian actors themselves, in the form of legal liability, loss of credibility and operational inefficiency. Without open and transparent validation, it is impossible to know whether humanitarian innovations are solutions, or threats themselves. Aid agencies must not only to be extremely attentive to this balance, but also should do their utmost to avoid a harmful outcome.

Framing aid projects as ‘innovative’, rather than ‘experimental’, avoids the explicit acknowledgment that these tools are untested, understating both the risks these approaches may pose, as well as sidestepping the extensive body of laws that regulate human trials. Facing enormous pressure to act and ‘do something’ in view of contemporary humanitarian crisis, a specific logic seems to have gained prominence in the humanitarian community, a logic that conflicts with the risk-taking standards that prevail under normal circumstances. The use of untested approaches in uncertain and challenging humanitarian contexts provokes risks that do not necessarily bolster humanitarian principles. In fact, they may even conflict with the otherwise widely adhered to Do No Harm principle. Failing to test these technologies, or even explicitly acknowledge that they are untested, prior to deployment raises significant questions about both the ethics and evidence requirements implicit in the unique license afforded to humanitarian responders.

In Do No Harm: A Taxonomy of the Challenges of Humanitarian Experimentation, we contextualize humanitarian experimentation—providing a history, examples of current practice, a taxonomy of potential harms and an analysis against the core principles of the humanitarian enterprise.

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Kristin Bergtora Sandvik, SJD Harvard Law School, is a Research Professor at the Peace Research Institute Oslo and a Professor of Sociology of Law at the University of Oslo. Her widely published socio-legal research focuses on technology and innovation, forced displacement and the struggle for accountability in humanitarian action. Most recently, Sandvik co-edited UNHCR and the Struggle for Accountability (Routledge, 2016), with Katja Lindskov Jacobsen, and The Good Drone (Routledge, 2017).

Katja Lindskov Jacobsen, PhD International Relations Lancaster University, is a Senior Researcher at Copenhagen University, Department of Political Science, Centre for Military Studies. She is an international authority on the issue of humanitarian biometrics and security dimensions and is the author of The Politics of Humanitarian Technology (Routledge, 2015). Her research has also appeared in Citizenship Studies, Security Dialogue, Journal of Intervention & Statebuilding, and African Security Review, among others.

Sean Martin McDonald, JD/MA American University, is the CEO of FrontlineSMS and a Fellow at Stanford’s Digital Civil Society Lab. He is the author of Ebola: A Big Data Disaster, a legal analysis of the way that humanitarian responders use data during crises. His work focuses on building agency at the intersection of digital spaces, using technology, law and civic trusts.

Unpacking the Myth of ICT’s Protective Effect in Mass Atrocity Response

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Information Communication Technologies (ICTs) are now a standard part of the mass atrocity responder’s toolkit, being employed for evidence collection and research by NGOs, governments, and the private sector. One of the more notable justifications for their use has been to supplement or improve the protection of vulnerable populations. In a new article published in the Genocide Studies and Prevention Journal, we argue that there is little evidence for the assertion of this protective effect by ICTs in mass atrocity producing environments, which we have labeled the Protective or Preventative Effect (PPE). This blog post argues that the mass atrocity community needs to engage more critically with a widespread perception that ICTs have innate protective effects in mass atrocity response. More testing and validation of potential harms is necessary to ensure that civilians on the ground are not negatively affected by ICTs. Risks to individuals and communities include for example the theft,  appropriation and distortion of personal data, geotracking of ground movements and surveillance of speech, communication, movements and transactions through hand-held devices

Technologies performing remote sensing, crowd mapping, individual identification through facial recognition and big data analytics have significantly impacted mass atrocity response over the past 15 years. These include smartphone apps, remote sensing platforms such as satellite imagery analysis and surveillance drones, social media and data aggregation platforms.

Such technologies are primarily adopted due to their low-cost relative to analogue intervention, and their ability to be remotely deployed in otherwise inaccessible or insecure environments. The specific applications of these technologies and platforms are diverse and constantly evolving, but can generally be divided into two broad categories:

  • Prevention/Response applications seek to create novel situational awareness capacity to protect populations and inform response activities.
  • Justice/accountability use-cases aim to detect and/or document evidence of alleged crimes for judicial and/or advocacy purposes.

These ICTs are now effectively treated as indispensable force multipliers that supplement or supplant traditional mass atrocity response activities. However, in the absence of validation of these claims, adoption of these technologies can be said to be largely supply-driven.

As ICT use in mass atrocity and human security crisis response has been mainstreamed over the last two decades, so has a set of generalized and hitherto largely invalidated claims about their effects on the nature and effectiveness of response. These claims constitute technological utopianism—the notion that technological change is inevitable, problem-free, and progressive. Moreover, the adoption of this technology-reliant and remote posture encodes within it the idea that the direct result of deploying these technologies and platforms is the prediction, prevention, and deterring of mass atrocity related crimes—a form of technological utopianism known as solutionism, which holds that the right technology can solve all of mankind’s problems.

Within atrocity response, this approach is exemplified by the much-publicized Eyes on Darfur campaign, where the public viewing of satellite images from Darfur was framed as action in and of itself—the assumption being that simply “knowing about atrocities” is enough to mobilize mass empathy and as a result engender political action. Implicit in this is the idea that technology itself can fundamentally alter the calculus of whether and how mass atrocities occur.  The adoption of this view by civil society, we argue, means that responders are not simply adopting a set of tools and techniques, but a theory of change, built upon a technologically utopian worldview.

Underlying this theory of change is the imbuing of these platforms and technologies with an inherent “ambient protective effect”—e.g. transforming the threat matrix of a particular atrocity producing environment in a way that improves the human security status of the targeted population. The underlying assumption of this protective effect is that increased volumes of novel and otherwise unobtainable data over a large-scale geographic area or environment may cause one, some, or all of several potential ambient protective effects which will prevent or mitigate the effects of mass atrocities.

Our article argues that the human security community—particularly mass atrocity responders—must come to terms with the fact that there is a difference between knowing about atrocities and doing something about them. Monitoring is a precondition for protection, but it is does not have a protective effect in and by itself.

More research is needed to determine the validity of the assumptions encoded into ICT use, and to address their relationship to a growing body of scholarship indicating possible direct and indirect pernicious effects of attempting to project a PPE through technology. In some cases, these may be exposing civilians to new, rapidly evolving risks to their human security and mutating the behavior of mass atrocity perpetrators in ways which harm target populations (for example by providing perpetrators with sitting duck targets through real-time information about population movements;  or about settlements and survivors not harmed in a bombing campaign, for example) . To do no harm to civilians, we must start by recognizing that the unpredictable knock-on effects of ICT use can cause real harm to civilians—for example, crowd-sourced data can be used to foment violence as well as preventing it—and  that the prevailing technological utopianism may prevent responders from noticing.

This post comes from Kristin Bergtora Sandvik and Nathaniel A. Raymond. Kristin is a Research Professor in Humanitarian Studies at the Peace Research Institute Oslo (PRIO) and a professor of  Sociology of Law  at the University of Oslo. Nathaniel is the Director of the Signal Program on Human Security and Technology at the Harvard Humanitarian Initiative. This post was also published on the ATHA blog of the Harvard Humanitarian Initiative.

Building a Sociology of Law for the Humanitarian Field

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Legal sociology has paid significant attention to human rights, but in contrast to legal anthropology, little focus has been given to humanitarianism. In this contribution, we ask, what does a legal sociological research agenda for the humanitarian field look like?

Humanitarianism is many things to many people. As described by Miriam Ticktin, humanitarianism is ‘an ethos, a cluster of sentiments, a set of laws, a moral imperative to intervene, and a form of government’; it is ‘one way to do good or to improve aspects of the human condition by focusing on suffering and saving lives in times of crisis or emergency; for instance, humanitarians provide temporary shelter, food, and medical care during wartime or immediately after disasters’. The actors involved include affected populations, civil society, host governments, the private sector, international organizations, humanitarian practitioners, the international humanitarian sector and donors.

As academics, it is our task to re-conceptualize this humanitarianism in terms of power, legitimacy and regimes of control and surveillance – both from an internal perspective concerned with humanitarian accountability in the global emergency zone, and from an external perspective that conceptualizes humanitarianism as a form of governance and social fact in global society.

An important aspect here is that as the humanitarian sector continues to expand, the field is legalizing. Beyond international humanitarian law, humanitarian action is increasingly compelled and constrained by a plethora of soft law and legal discourses, and what was once a largely unregulated field of practice is now emerging as a transnational humanitarian space where authority, governance, legitimacy and power is progressively invoked through law.

Historically, humanitarian action has been linked to the normative framework of international humanitarian law (IHL), while emerging as a largely unregulated field of practice. The study of IHL has overwhelmingly been the terrain of doctrinal legal scholars, while the apparent lack of other law has meant that, until recently, legal sociologists have paid little attention to the humanitarian sector. There has also been little sociological concern regarding the consequences of not asking questions about the role of law in the humanitarian project.

As scholars specifically focused on the legal aspects of humanitarian space and the evolving law of humanitarian action, we are interested in normative constructions and contestations regarding conceptualizations of aid, agency, crisis, responsibility and rights within and across different social fields of regulation and governance.  We argue that legal sociology is of central analytical value to this prism, as it focuses on the study of rules, standards, norms; the evolving role of the legal profession and the legalization of conflict resolution in humanitarian governance. Legal sociology can also offer important perspectives on the relative lack of regulation of the humanitarian space, and on the normative orderings that occupy this space in competition with, as a substitution for, or in parallel to legal norms.

In the following, we explore a set of key questions concerning the relationship between humanitarian governance and law:

  • What is the relationship between humanitarian norms and law, and the normative and legal hierarchy of competing humanitarian values?
  • What are the implications of enfranchising non-state actors to partially ‘see like a state’ in humanitarian contexts?
  • What type of authority – and legal authority – do humanitarians have, and how is this authority produced and constrained through rules, norms and standards; including soft regulation, contractual practices and financial policies?
  • What does this authority allow humanitarians to do, and to the extent that humanitarian actors are held accountable, how does this happen?

The relationship between norms and rules

We are interested in the frictions and blind spots that arise in the relationships between humanitarian imperatives (‘do no harm’, ‘aid according to need’), principles (neutrality, impartiality, universality, humanity), and legal frameworks aimed at regulating specific aspects of humanitarian logistics and protection activities. Examples of relationships that need critical unpacking include the relationship between needs-based and rights-based humanitarianism; and the relationship between humanitarian norms, soft law, and due process considerations in refugee resettlement.

There is a similar need for critical inquiry with respect to the relationship and legal hierarchy between humanitarian norms and rules, and neighboring human insecurity fields such as development, human rights, mass atrocity response and international criminal justice.  Specifically, more attention should be given to the substantive aspects of these relationships, and to the implications of mission creeps. For example, ICTs and data are useful prisms for exploring emergent splits between human rights and humanitarians as crisis responding communities. This includes how this split shapes and is shaped by each group’s use of data and the impact the use has on crisis affected individuals and communities. It also includes increasingly divergent perceptions of what responsible approaches to data collection, maintenance, storage and sharing of data look like.

Seeing like a state

Humanitarian organizations are not states. Yet, they are transnational, have thousands of staff, operate and litigate in multiple jurisdictions and are actively involved in sponsoring and pushing for soft law developments. How do we analyze the tensions between the construction of an emergency zone which enfranchises non-state actors to govern; and the structure of human rights law, which requires that individuals have access to accountability mechanisms, including the means for obtaining binding legal redress through state institutions?

For example, legalistic versions of rights-based approaches (RBA) to humanitarian action are premised on the notion that rights holders are entitled to hold the duty bearer accountable. Yet, according to international law and the view of international humanitarian organizations, this right is directed principally at the state and its agents. Humanitarian organizations suggest that they must consider ‘rights-holders with legal entitlements’ but do not see themselves as accountable for the fulfillment of those rights. Organizations sometimes operate with competing definitions of RBA, where humanitarian organizations seek to strengthen the capacities of the rights holders to make claims and of duty bearers to satisfy those claims, but are not themselves directly accountable to persons of concern. What are the implications of enfranchising non-state actors to partially behave and ‘see like a state’?

Questions of authority

Next, we are interested in what type of authority – and legal authority – humanitarians have, and how this authority is produced and constrained through rules, norms and standards; including soft regulation, contractual practices and financial policies.

The broader context for the regularization of humanitarian governance is the accelerating reach of international law into the realm of international administrative governance. In the late 1980s and early 1990s, the lack of accountability and transparency raised serious questions about the procedural legitimacy of international organizations. Serious concerns were raised about the emergence of undemocratic liberalism as a consequence of global bureaucratization. The answer to this anxiety about bureaucracy was to bring in more of it: It was thought that rationalization and the emphasis of proper and correct procedures would ensure procedural legitimacy. Hence, the bureaucratization and regularization of humanitarian action takes place mostly through the proliferation of soft norms resulting from multilateral legal agreements, international adjudication, and the increased law-making capacity of international organizations. Legal sociology may here contribute to develop a critical perspective on this aspect of humanitarian governance, for instance by mapping out the role of legal actors and legal authority in humanitarian organizations and transnational coalition networks in humanitarian governance.

To exemplify, socio-legal and anthropological interest in soft law have mostly focused on international instruments for human rights protection, which has resulted in an unfortunate scholarly tendency to reify soft law as inherently progressive. Yet the power operating in the crafting of soft law and the logic of softness may create inequality between groups or result in oppression. Constituted on ideas of emergency and urgency, humanitarian space is a site with extreme power differences between actors, to the extent that aid affected communities are rarely represented around the table when new soft law instruments are drafted.

We should bear this in mind as we engage critically with the emergent law of humanitarian action. The informality of soft law may jeopardize formalized accountability mechanisms, or weaken the obligations of organizations, humanitarians, private sector actors or states in the humanitarian field. Even when crisis-affected communities participate, the notion of pluralistic participation may conceal that soft law production is actually limited to powerful actors; and contribute to misrepresent how the humanitarian sector is structured both on and according to principles of systemic inequality. Legal sociology could here provide a close study on how best practices and community norms are articulated and codified as soft law.

Accountability 

Finally, we ask what this authority allows humanitarians to do, and to the extent that humanitarian actors are held accountable, how this happens. Here we want to briefly outline two emergent developments.

While scholars have often approached this topic by examining the role and responsibilities of international organizations, the 2015 Steve Dennis versus the Norwegian Refugee Council case from the Oslo District court, and its aftermath provides an interesting case study for gauging the evolving juridification of humanitarian organizations’ duty of care for their staff, and the broader implications of a shift towards court-ordered humanitarian practice. Activities and processes that were before considered ‘good practice’ within a human resources frame are increasingly juridified. This shift also reshapes modes of organizing work and workers. In the aftermath of the Steve Dennis case, organizations have struggled to define what constitutes acceptable levels of insurance for a multinational staff. The distributive effects on peoples everyday professional lives, including how such effects may vary according to nationality, race or religion, merit specific attention.

Finally, questions must be asked about the role of global and national publics in holding states and humanitarian actors accountable for how they contribute to end/engender human suffering. In the human rights field, social movements and legal mobilization are central for holding states accountable. However, while contemporary humanitarianism began as a series of social movements – including the anti-slavery movements, missionary engagements and the internationalization of Red Cross societies – present-day humanitarians appear to have a deeply ambivalent attitude to enlist bystanders, i.e the general public, beyond fundraising and social media support. On the other hand, with the present difficulties facing humanitarians with respect to access to humanitarian space and the declining respect for international humanitarian law, ideas about public engagement may be shifting.

Conclusion

While humanitarianism has global and avowedly benevolent ambitions for ordering and eradicating crisis, manifested through a global system of organizations operating within, in parallel with, above and across the domestic state system, and legitimated by moral universals (neutrality, humanity etc.), it is also a field epitomizing global divisions and inequalities. At the same time, humanitarianism – as a transnational practice field and a cluster of cosmopolitan sentiments – is expanding. As part of this, the field is legalizing. Having outlined a few established practices and emergent developments of the mutually constitutive relationship between law and humanitarianism, we argue that legal sociology is well situated to track this development.

This blogpost builds on research output from the PRIO-project ‘Aid in Crisis? Rights-Based Approaches and Humanitarian Outcomes’, funded by the Research Council of Norway under the AIDEFFECT program. It also appears on the blog of The Sociological Review.

Norwegian Centre for Humanitarian Studies
Contact: Centre Director Maria Gabrielsen Jumbert margab@prio.org, PRIO, PO Box 9229 Grønland, NO-0134 Oslo, Norway