Tag Archives: human rights

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

UNHCR – A Humanitarian Organization with a Mandate to Protect Civilians in Refugee Camps

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It is difficult to imagine a more humanitarian space than that of the refugee camp, whose foremost purpose is to provide refugees with temporary shelter, assistance, and protection until they are voluntarily repatriated to their country of origin, locally integrated in the host state, or resettled to third countries. The categorization of refugee camps as civilian and humanitarian is not, however, unproblematic. Refugee protection has always been deeply affected by greater security issues; rather than serving as civilian and humanitarian safe havens, camps for refugees (and internally displaced persons) have on a number of occasions become notorious for serious problems of insecurity, including armed attacks, arbitrary killings, torture, exploitation and military recruitment. But who can, and should, be held responsible under international law for these human rights violations?

This is the initial question discussed in my book Protecting Civilians in Refugee Camps: Unable and Unwilling States, UNHCR and International Responsibility. Here, I examine the United Nations High Commissioner for Refugees’ (UNHCR) international responsibility for human rights violations taking place in refugee camps. The book argues that UNHCR under certain circumstances can, and should, be held responsible under the International Law Commission’s nascent framework of the Articles on the Responsibility of International Organizations. Specifically, UNHCR’s international responsibility will depend upon an evaluation of the host State’s ability and willingness to provide effective protection.

UNHCR and the Protection of Civilians in Refugee Camps

The book essentially finds that UNHCR’s mandate to provide refugees with ‘international protection’ includes the provision of physical safety and basic rights, and that UNHCR furthermore holds an affirmative duty to act and intervene to secure the basic human rights of refugees. That said, it is clear that UNHCR occupies a challenging place in the international arena when it is both entrusted with an ambitious mandate and also frequently caught in a vice between the preferences of actors such as donor governments and host states. It is to be a norm entrepreneur, supervisor and enforcement agency of refugee rights at the same time as it is expected to be a cooperative partner to states and NGOs, and the ultimate provider of material assistance. As Protecting Civilians in Refugee Camps highlights, UNHCR’s protection role has become increasingly pragmatic, focusing more on the provision of food and shelter, and refugee security has as such had to give way for other competing priorities.

Considering the clear link between UNHCR’s international protection mandate and physical security, why, then, does the physical security and basic human rights of refugees and others of concern to UNHCR appear to be only a peripheral issue within the organization? The book presents several explanations. Firstly, UNCHR appears to believe that if it ‘flaunts’ its own responsibility, this risks detracting attention from the responsibilities of host states, who, after all, have the primary responsibility to protect refugees on their territory.  Secondly, however, because it surfaces at the crossroads between state sovereignty, national security and international human rights, refugee security is generally considered to be ‘high politics’ and exposes a tension between human rights norms and realpolitik. Organizations such as UNHCR tend to view attention to physical protection issues as a threat to their neutrality, impartiality and independence. Thus, for fear of jeopardizing relationships with governments, UNHCR appears to emphasize ‘soft diplomacy’ and prioritize less controversial tasks, such as the provision of material assistance, in the face of ‘hard’ human rights concerns. But, as even UNHCR itself has noted, it has a duty to fulfill its mandate regardless of ‘political circumstances and imperatives’. UNHCR’s challenge thus lies in staying true to its main principles, and not throwing them overboard as soon as it meets resistance. This logically means that UNHCR also cannot expect to please all sides.

Without downplaying the fact that UNHCR often has to make choices between bad and less bad options on the ground, it is arguable that without an increased focus on basic human rights and physical protection, UNHCR runs a real risk of ‘simply administering human misery’. More importantly, ignoring refugee security arguably affects the situation as much as confronting it. While UNHCR’s international protection mandate may be ready to be fully implemented in theory, because it appears not to be a current priority within the organization, it is far from certain that the mandate is fully understood, and applied thereafter, among the main actors concerned with protection and security within UNHCR.

Wide Scope for Improvements

Protecting Civilians in Refugee Camps suggests that there is wide scope for improvements within UNHCR aimed at strengthening refugee protection. First, in order to ensure full and proper implementation, it is important to clarify UNHCR’s mandate vis-à-vis physical security both internally within the organization, and externally among its operative and implementing partners. In 2009, the UN Office of Internal Oversight (UN OIOS) undertook an extensive study of UNHCR’s approach to the safety and security of staff, operations and persons of concern. This study suggested that UNHCR’s mandate was often misunderstood among the main actors dealing with security issues.

A clarification of this mandate will hopefully also lead to a security focus that is more proportional between staff security and refugee security, and, on an international level, this may alleviate the current eclipse of UNHCR’s mandated responsibilities vis-à-vis physical protection of refugees and others of concern in refugee camps by the more pragmatic and operational activities of actors such as UN OCHA. In fact, recent years’ activities within the Security Council concerning the ‘protection of civilians’-framework have contributed to UN OCHA, whose mandate is essentially that of coordinating humanitarian response (and thus not protection), becoming the primary actor involved in refugee camp security. In a 2005 report by the UN Secretary-General, no mention of UNHCR’s role in protection monitoring is made – rather it is suggested that UN OCHA shall collect data on attacks against refugee camps and collate baseline information on issues such as security related to internally displaced persons.

A clarification of UNHCR’s mandate may also lead to improvements with regard to training and administering UNHCR staff: a shortage of protection staff seems to be an endemic problem within the organization, and is something which clearly has serious consequences in some operations where UNHCR has not even been aware of persistent rights violations. UNHCR must also reward staff who voice protection concerns – currently there appear to be no institutional incentives to do so.

It is also arguable that the current system of periodic rotation of staff between departments, headquarters and the field deprives UNHCR from any true expertise or staff specialization in the field of refugee physical security. Roughly speaking, there seems to be a general sentiment that each individual UNHCR staffer shall be able to tackle most of UNHCR’s various tasks, whether these tasks concern refugee camp security or material assistance. This system arguably impedes upon UNHCR’s possibility to use the skills acquired over the years to best effect. As one UNHCR staff argued in a 2005 study of UNHCR organizational culture: ‘Rotation is a serious problem … If a finance specialist has to move and become a programme person, it lowers things down to the lowest common denominator.’

Monitoring the human rights situation is an integral part of UNHCR’s exercise of its international protection mandate, and international protection cannot be advanced without full knowledge and understanding of the human rights situation. It appears as if UNHCR needs to reconsider the manner in which it collects, analyzes and, perhaps most importantly, uses the information on protection concerns in refugee camps. UNHCR’s experiences with security concerns in refugee camps are currently neglected or disguised through generalizations and shortcuts in the monitoring process. As such, new incidents can flourish. UNHCR’s internal evaluations have also shown that many field staff are not sufficiently aware of the relevant policies and guidelines, or about their monitoring roles and responsibilities. This was also emphasized in the 2009 UN OIOS Report, which inter alia found that UNHCR lacked adequate guidelines for security and protection officers in the field to enable joint assessment and physical protection of refugees and other persons of concern, and that the accountability framework, reporting mechanism, definition of security responsibilities and arrangements for monitoring the implementation of security measures were not adequately defined. It is clear that the protective effect of UNHCR’s protection monitoring depends upon how the gathered information is used.

More Protection, Less Material Assistance

A renewed focus on UNHCR’s international protection mandate might entail that UNHCR focuses less on providing material assistance. However, experience suggests that in cases where UNHCR has been unable or otherwise unwilling to provide material assistance, other organizations have stepped into the void. Such was the case in Thailand, when UNHCR sought to minimalize its involvement in the camps that were controlled by Cambodian military factions. This clearly suggests that there is an abundance of international and non-governmental organizations that can provide material assistance. Only UNHCR, however, has the mandate to provide international protection.

UNHCR’s accountability is the topic of an upcoming panel – organized by members of and affiliates to the Norwegian Centre for Humanitarian Studies – at the Humanitarian Studies Conference in Istanbul October 24-27, 2013. More information about the conference and the panel ‘UNHCR and the Struggle for Accountability: an examination of parallel regimes’ is found on http://www.humanitarianstudiesconference.org/. The book Protecting Civilians in Refugee Camps: Unable and Unwilling States, UNHCR and International Responsibility can also be pre-ordered through Brill’s webpage: http://www.brill.com/products/book/protecting-civilians-refugee-camps.

Protection: From deeds to words?

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I have just finished reading a book on protection that tells a rather different story than the one we typically hear. The conventional narrative on protection (of civilians) goes more or less like this: it is a central legal concept in International Humanitarian Law, it has over the last ten years been made an operational concept in UN peacekeeping operations (then under the heading “protection of civilians). Since the UN World Summit in 2005, moreover, it has been incorporated – many say distorted – in the concept of a “responsibility to protect” (R2P). Those who follow policy debate will no doubt recall that UN Security Council resolution 1973 on Libya in 2011 authorized “all necessary measures” under chapter VII of the UN Charter precisely to ”protect civilians.” Not long after, a strongly worded resolution on Cote D’Ivoire – resolution 1975 – similarly authorized the use of force to protect civilians in the context of the post-election violence attributed to Laurent Gbagbo. The story can be more specific and detail the many gross violations of international humanitarian and human rights law and the deliberate targeting of civilians in many of today’s conflicts, as is on display now in Syria. And so the end-point of the standard story is that there is a set of principles that the international community should aim to implement in practice – that one needs to move from words to deeds.

In International Authority and the Responsibility to Protect (Cambridge University Press, 2011), legal theorist Ann Orford argues – as the title of this blog indicates – that the concept of protection could, and at some level also should, be understood as moving from deeds to words. The book provides what I consider a must-read for scholars and others interested in contemporary debates about protection. The analysis starts with an important analysis of Hobbes’ Leviathan and the stakes involved in the development of a novel concept of sovereignty. The analysis weaves together early legal and political debates about sovereignty on the jurisdiction of the Roman Emperor and the Pope relative to European kings. Orford argues that the core of Hobbes’ formulation of sovereignty in terms of a social contract is that people submit to it because the sovereign can offer protection. Thus, the de facto capacity to offer protection is that which secures sovereignty. Written, of course, in the context of religious warfare in Europe, Hobbes’ treatise was important because it gave European Kings a stronger rationale in their efforts to challenge the claimed jurisdiction of the Pope: the fact of being able to offer protection within their realm became more important than the (claimed) right of being universally sovereign with reference to the Pope’s religious authority.

To cut a long (and very interesting) story short, then: the privileging of fact over right, of making capacity to protect a crucially important ingredient in the constitution of sovereign authority has significant implications for how we think of protection today. For Orford, whose focus is on the UN’s role in peacekeeping and peacebuilding since the Congo operations in the early 1960s, the capacity to protect is the driver of the story, with different justifications given ex- post, as it were. Her main empirical focus is on the concept of “Responsibility to Protect” (R2P) that was officially sanctioned by UN member states at the 2005 UN World Summit. It was formulated, she says, in an effort to secure the renewed legitimacy of what she calls the UN’s long-standing tradition of “executive action” inaugurated by Dag Hammarskiold during the UN’s Congo operation.

I’m not entirely convinced about the story Orford tells about R2P as simply a justification for existing practice. Certainly R2P was formulated in the context of an effort to render possible and legitimize interventions to stop genocide and mass atrocities. But to say that it was formulated quite specifically to fill a “justificatory void” of what the UN had been doing for quite some time is insufficiently nuanced. But there is truly a wealth of important insights here. Let me briefly identify three that I think have bearing on research on humanitarian actors and their work on protection.

First, this analysis links protection to broader questions of sovereignty and the authority to rule also outside the realm of humanitarian law and humanitarianism. If the authority to govern in far-away places can be, and is, claimed by reference to de facto capacity to protect, we need to consider how protection is used to justify a range of practices that may move well beyond protection of civilians as stipulated in IHL, including development and peacebuilding efforts. Indeed, R2P – mostly described in terms of its legitimation of humanitarian intervention and conditioning of sovereignty – emerges in this light also as a principle that is markedly different from the more ambitious efforts aimed at so-called liberal peacebuilding: R2P is about avoiding genocide and mass atrocities. It is not about the advancement of liberal principles. R2P says little about the contents of domestic governance arrangements and as such bears a close affinity to rather than only condition sovereignty:  as long as the state protects its population against atrocities, it can pretty much do as it pleases, and need not be democratic. The UN’s work under the R2P agenda has also been very much on advising governments on how to organize itself to be able to offer protection more effectively.

Second, protection can be used as a justificatory register for humanitarian actors to branch out, as they are currently doing to address urban violence. Shifting between the generic reference to protection and references to IHL offers a bridge between traditional humanitarian work and other areas traditionally not under the humanitarian umbrella. But this also means having to work with other actors, some of which humanitarian organizations often have necessary yet difficult relations, such as police forces and the military. If the ability to offer protection is indeed a powerful argument for jurisdictional control, we should expect considerable battles between humanitarians and other actors over jurisdictional control over specific tasks.

Third, if authority and ultimately sovereignty is premised on claims to de facto protection capacity, then the obverse is also true, that lack of protection may entitle others to step in to do the job. And then we face the question of who are in a position to authoritatively interpret what constitutes “protection” and whether lack thereof should open up for other actors – such as international or non-governmental organizations – to step in. Here, Orford offers much food for thought in her analyses of the many layers of sovereignty. In short, who interprets and who decides becomes important. From this follows another set of questions about accountability and representation. Who are authorized to speak on behalf of whom? Are not some humanitarian and human rights groups claiming to represent victims and indeed “humanity” without being accountable to those on whose behalf they claim to speak (and act)? As Alex de Waal has pointed out several times, there is a tendency of advocates of protection (broadly defined) to describe and define the problem in question in terms geared solely towards the mobilization of western, and particularly US political actors. This move incurs considerable political costs, for the political solutions that are thereby legitimized are often not at all attuned to and based on solid factual knowledge of the problem in question.

In conclusion, protection is about more than the no doubt politically laden processes of operationalizing and implementing it in practice. This process of moving from words to deeds raises a range of questions about the voice of beneficiaries, the categories (of gender, for example) used to assess what, and who, needs protection. But there is also another story that has to do with the move from deeds to words: de facto capacity to offer protection has historically been a central ingredient in the formation of authority. Thinking through what it means to invoke protection as a justification for some activity, or to be able to assert that there is lack of protection, seems important as humanitarian action confront new challenges in defining the proper relationship with its environment.

The Multiple Tracks of Human Rights and Humanitarianism

By Kristin Sandvik (PRIO) 

Abstract

This book engages with contemporary African human rights struggles including land, property, gender equality and legal identity. Through ethnographic field studies it situates claims-making by groups and individuals that have been subject to injustices and abuses, often due to different forms of displacement, in specific geographical, historical and political contexts. Exploring local communities’ complexities and divided interests it addresses the ambiguities and tensions surrounding the processes whereby human rights have been incorporated into legislation, social and economic programs, legal advocacy, land reform, and humanitarian assistance. It shows how existing relations of inequality, domination and control are affected by the opportunities offered by emerging law and governance structures as a plurality of non-state actors enter what previously was considered the sole regulatory domain of the nation state.

Book available at: Sandvik, Kristin (2013) Part III of Derman, Hellum & Sandvik (ed.) Worlds of Human Rights: The Ambiguities of Rights Claiming in Africa. Leiden: Brill.

PoC: The Politics of Counting Rape in Darfur

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During my fieldwork in Khartoum in February/March this year a paradoxical development was brought to my attention. The records of UNAMID, The African Union/UN Hybrid operation in Darfur, indicate that sexual violence is on a decrease in Darfur. These records are, because of their sensitive nature, not open to the general public. Several interviews with both diplomats and humanitarian actors supported this assertion.

If sexual violence in Darfur is in fact on the decrease, that is good news indeed. But the validity of the assertion invites critical scrutiny.

Interviews conducted with humanitarian and political actors suggest that only the reporting of rape cases to UNAMID has gone down. Sudanese informants referred mockingly to UNAMID as “the African mistake in Darfur”, implying that the largest peacekeeping operation to date is not up to the task. They explain that the reporting to UNAMID has gone down because in 2009, the Sudanese government has expelled the humanitarian actors that were most active in referring cases to UNAMID and in speaking out publicly and bringing attention to the systematic and widespread rape in Darfur.

It is close to impossible to get research permits to Darfur for a Western researcher. But my interviews in Khartoum with International and Sudanese nationals active in Darfur before and after the expulsions suggest that the violence, including sexual violence, may actually be on the increase. In the words of a former minister from Darfur “the violence is escalating (…) It is out of control and it has become an everyday event by the police, the security, the Janjaweed and the rebels. The international community is deserting them. UNAMID is doing nothing. They are not protecting civilians. They cannot even protect themselves. (…)”.

The lack of reporting and the implicit conclusion that sexual violence might be on the decrease, potentially has significant political implications; it backs President Bashir’s claim that the evidence for the systematic and widespread sexual violence in Darfur was fabricated by the international community in an effort to undermine the Sudanese government.

Systematic and widespread sexual violence in Darfur: Government denial

In 2005, the UN published a report on sexual violence in Darfur concluding that the Government of the Sudan and the Janjaweed were responsible for widespread and systematic violations of international human rights law and international humanitarian law.

An arrest warrant for Bashir was issued on 4 March 2009 indicting him on five counts of crimes against humanity (murder, extermination, forcible transfer, torture and rape) and two counts of war crimes (pillaging and intentionally directing attacks against civilians). The indictment speaks to 1325 (2000), 1820 (2008), 1888 (2009) 1889 (2009) and 1960 (2010) on women, peace and security and acknowledges the sexualization of violence in Darfur. The President insists that the allegations of widespread and systematic rape were being fabricated for political purposes. In an interview with Lindsey Hilsum from Channel 4 Bashir argued that

“When it comes to mass rape, there is no document or evidence, just accusations (…). We are fully convinced that no rape took place. It might have happened at an individual level, but this is a normal crime that can happen in any country in the world. Mass rape does not exist.

Expulsion of humanitarian actors from Darfur

The Sudanese government’s reactions to this indictment have had dramatic repercussions for the humanitarian presence in Darfur, including within the area of gender based violence (GBV) programming.

Immediately following the ICC indictment, the Sudanese government expelled 13 international NGOs operating in Darfur and de-registered prominent national NGOs that between them employed nearly 40% of Darfur’s aid workers. The Vice-President stated that

“Whenever an organization takes humanitarian aid as a cover to achieve a political agenda that affects the security of the county and its stability, measures are to be taken by law to protect the country and its interests.”

Government officials made it clear that they would fill the void left by the International NGOs with “national and friendly foreign NGOs”.  In addition to the international NGOs that were expelled, the Sudanese Humanitarian Aid Commission (HAC) de-registered three Sudanese NGOS; the Amal Centre for Rehabilitation of Victims of Violence, the Khartoum Centre for Human Rights Development and Environment and the Sudan Social Development Organization (SUDO).

The Sudanese government harbours a particular antipathy towards those humanitarian actors that address gender-based violence, and/or speak out publicly about rape cases. As a consequence, a humanitarian worker explains “The meetings in the GBV cluster used to be packed. Now they are empty (…)”.

Médecins Sans Frontières (MSF) was accused of spying for the ICC. In 2005, MSF published The Crushing Burden of Rape,  a report  on the widespread sexual violence in Darfur. MSF reported treating nearly 500 rape survivors from October 2004 to early February 2005. Two senior members of MSF Holland were arrested charged with espionage and publishing false information. In 2006, the Norwegian Refugee Council was expelled from Darfur after publishing a report on 80 cases of rape around Kalma Camp in southern Darfur. Khartoum claimed the findings were false.

In 2013, one of the major concerns on the ground is the diminished capacity on reporting on GBV violations. In the words of an activist from Darfur:

“The arrest warrant of Bashir has affected our work in Darfur. The word ‘protection of civilians‘ became very sensitive. If we use that term then the government thinks that we are collecting rape cases and reporting them to the ICC.  With the ICC, reporting of rape has become more difficult. (…)”.

Similarly, according to an international organization working within the area of GBV violence in Darfur; The gaps left by the expulsion of 13 NGOs following the announcement of the arrest warrant for President al-Bashir in March 2009, remain. (…) The expulsion of the International NGOs has significantly reduced the capacity for monitoring and referrals, as well as diminished the reporting capacity on GBV issues”.

International NGOs as political tools?

The International NGOs most forceful in the work and advocacy on GBV has been expelled. Remaining humanitarian agencies openly admit their reluctance to speak out about sexual violence. Because of government restrictions and intimidation, it is increasingly difficult for the remaining actors to work within the field of GBV without the risk of expulsion. As a consequence the reporting of rape to UNAMID has gone down. This poses an ethical dilemma to the remaining International NGOs:  On the one hand, if the government restricts or even blocks work on GBV, the humanitarian NGOs can still provide vital services in water, sanitation, and food security. On the other hand, by keeping silent on GBV, do the remaining humanitarian actors, described by the government as ‘friendly foreign NGOs’,  simply serve as political tools for Bashir in his claim that ‘Mass rape does not exist’ in Darfur?

PoC: Where the Price for Mobilizing Protection Laws is Your Life – the Plight of Colombia’s Women IDP Leaders

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In November 2012, Human Rights Watch published the report  “Rights Out of Reach: Obstacles to Health, Justice, and Protection for Displaced Victims of Gender-Based Violence in Colombia” documenting the failure of recent improvements in Colombia’s laws, policies and programs on gender based violence to translate into effective protection for internally displaced women, so-called IDPs.  The long-term activist Angélica Bello was interviewed in the report, decrying the lack of protection against rape, the lack of health care and the lack of compensation for displaced women.

At the age of 45, Bello, the director of the National Foundation in Defense of Women’s Rights (FUNDHEFEM) had been displaced four times due to her crusade on behalf of Colombia’s  3,5-5,4 million displaced, of whom a majority are women. Coming out of a meeting at the Ministry of Justice in Bogotá in 2009, she was abducted and sexually assaulted – and told by her assailants that she was being punished for her activist work.

February 16 2013, Bello’s struggle for social justice and better protection for displaced women ended with a bullet to the head. Her death was initially ruled suicide- the authorities stated that she had killed herself with a gun left behind by one of her bodyguards in the government-provided security detail. The Colombian human rights community is deeply suspicious and the National Ombudsman has requested an autopsy. Regardless of Bello’s almost extreme personal courage and whatever the truth about Bello’s death, the kind of insecurity she faced as a consequence of her activism, is an all too familiar story of suffering, violence, suspicion- and of laws not implemented. In recent years, many female IDP leaders have been assassinated. Almost everyone get threats.

CIJUS in Colombia and PRIO have collaborated on a three-year multi-methods study on a particular aspect of the PoC issue, namely the role of legal protection frameworks. We have examined the relationship between legal mobilization, political organizing and access to resources for IDP grassroots organizations in Colombia.  Often overlooked in scholarship on legal mobilization, the acute insecurity of those advocating for implementation of existing law and local administrative regulations have emerged as a key finding in our research.

Recognized as a severe humanitarian crisis, Colombia’s massive internal displacement is a consequence of a prolonged internal conflict between guerrilla groups, government forces and illegal armed groups, compounded by an extended war on drugs. Displacement results in dramatically increased rates of impoverishment. In the city, IDPs experience discrimination in the labor and housing market, and in accessing government services such as education and primary health care. For women IDPs, these crosscutting forms of marginalization are compounded by gender-specific types of vulnerability, such as sexual violence and poor maternal health.

We have looked specifically at the efforts of, Liga de la Mujeres Desplazadas, the League of Displaced Women, to use the Colombian Constitutional Court and the Inter-American Commission on Human Rights to achieve physical and material security for its members.

In a relatively sophisticated state bureaucracy such as Colombia’s, humanitarian policies will not be based on the traditional humanitarian tool kit, but on administrative structures, social programs, and regulations that are justiciable.

Since the 2011 Victims Act, there has been a shifting in how the displacement problem is being framed:  In the process of mapping and interviewing all of Colombia’s 66 women IDP organizations from 2010 and onwards, we observed that many began to talk about themselves as “Victims organizations”. However, despite this reframing, the situation on the ground remains unchanged:  implementation is inadequate and poverty and insecurity shape the rhythm of everyday life.

Like Bello, the leaders of Liga de Mujeres have received multiple death threats. Located in and around the Caribbean city Cartagena, the Liga’s highly successful efforts at consciousness raising, income generating activities, and participation in local politics, has also meant that its members and their relatives have been harassed, raped, disappeared and killed by neo-paramilitary groups, also called Bacrims (Bandas Criminales). The Bacrims are organized criminal outfits emerging on the tails of the Paramilitary demobilization process, initiated under the 2005 Justice and Peace law. Bacrims such as the Black Eagles and ERPAC rapidly became the main threat to IDP/Victims leaders, as well as community leaders, human rights defenders, trade unionists.

As a consequence, the Liga has been included in government protection schemes for a number of years. However, seen from the perspective of the Ligas grassroots members, inclusion in these schemes did not result in any form of meaningful protection.  In response, the Liga’s turned to strategic litigation.

The Colombian Constitutional Court has been vocal in its defense of Colombia’s IDPS, and several important decisions have specifically considered the precarious security situation of women community leaders, and ordered the government to provide effective protection.  In 2008, with Award 092, the Court ordered the government to adopt thirteen specific, tailored-made programs on issues such as housing, child care, mental health and security. Auto 092 gave orders for the protection of 600 individualized IDP women considered to be at risk, of whom 150 belonged to the Liga.

To oversee implementation of 092, women’s organizations, including the Liga, formed a national monitoring committee. In April 2011 the monitoring committee received a written threat from ERPAC- specifically mentioning the Liga- in which the women “advocating for the implementation of Auto 092” were declared military targets and threatened with anal rape.

By 2011, parallel to the process with the constitutional court, the Liga had obtained precautionary measures from the Inter American Commission for all its members. The content of such protection measures is the subject of negotiation between those obtaining the measures and the government.  When discussions over what effective protection would look like broke down in July 2011, the Colombian state subsequently redefined the Ligas security risk from “high” to “medium”, and scaled back the government protection scheme.  Meanwhile, the Liga has continued to receive threats from Aguilas Negras and ERPAC.

Angélica Bello’s plight is unusually tragic. Yet, she is not the first and will unfortunately not be the last woman to die in the struggle for implementing laws protecting women from displacement, threats, disappearances and sexual violence.

A shorter version of this blog was posted on the intlawgrrls blog earlier in March 2013.

The politics and Possibilities of Victim Making in International Law

Sandvik, Kristin Bergtora (2012) Revista Da Faculdade De Direito Do Sul De Minas 27(2),

The need to deal with the human consequences of conflict and violence remains a key challenge in global governance. As a result human experiences of suffering have become core concerns for international law in the aftermath of the Second World War.

Imageries of human suffering have also become central to the idea of universalized justice which finds its particular expression in the areas of human rights, humanitarianism and international criminal law. Since the early 1990s, a proliferating number of international and national tribunals, commissions and administrative entities have been created to deal with the need for legal protection for displaced individuals, transitional justice, and restoration and allocation of criminal responsibility in the aftermath of internal and international conflict.

Through a conceptual inquiry of how victim statuses are produced and allocated in international law, this paper aims to contribute to a richer socio‑legal understanding of the role of law in victim‑making in global governance.

Keywords: Global legal liberalism; Victims; Transitional justice; Human rights; International humanitarian law; International criminal law; Narratives of suffering; Testimony.

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