Tag Archives: International humanitarian law

Suhrke on Human Security

In the article “Human Security 15 Years after Lysøen: The Case against Drone Killings”, Astri Suhrke (CMI) discusses two approaches to the concept of human security. The author examines the comprehensive vision of security and development and the concretization of the human security concept tied to protection of civilians in armed conflict.

Starting with the Lysøen Declaration of 1998 and Canada’s subsequent introduction of the concept of human security in the Security Council, the article argues that a concretization is necessary today. One way to do this is to link human security to campaigns for protection of civilians against the U.S. use of drones in targeted killings outside recognized war zones. This strategy would revitalize human security as a relevant policy concept, and also create greater security for people living in exposed communities.”

The entire special issue article, published in the Asian Journal of Peacebuilding, is available here.

The humanitarian triad

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Three (at least) humanitarian imperatives should inform the taking moral and/or material action across borders in the name of humanity, not only the one – to act – that we all know: a just cause, addressed by just means, so as to achieve a just outcome. The trick if one may so put it of achieving a justifiable humanitarian morality-in-practice, and studies thereof, is to keep all three imperatives in play, under care and control, in the air, and of course on the ground, all at once. Shall we speak then of an imperative humanitarian triad to maximize humanitarian gain, and minimize humanitarian loss.

It behoves anyway always to think plural about noble keywords, that work also as lockwords, of which humanitarian is one, about their passive as well as active performative verbal dances. Ever mindful we should be too of what appears to have been the first use of ‘humanity’ as in the ‘crimes against’ phrase: as code for not ‘all of’, but specifically only ‘one section of’, humankind. In the nineteenth century a Russian foreign minister sought and found a euphemism – ‘humanity – for the persecuted Christian Armenians in a mostly non-Christian area in the Middle East whom the West wanted to aid. Only the other day much the same wording, for a similar situation, was on the waves again. What may appear purely universalist on first sight is revealed on analysis to be not that, but impurely particularist.

If, as I believe, it would be correct to say that precisely why some – not other – just causes are internationally taken up, say by an INGO, has not been much researched, then that surely is one obvious candidate for our urgent attention. Another is precisely how civil humanitarian intervention (as I wish to name it) being unlike armed operations being scarcely ever conceptualised as intervention, but as aid only, and as if somehow method-less: just ‘helping as one can’. CHI normally seems to get left out of intervention research completely (a recent edited collection of essays is exceptional as well as of itself a brilliant new contribution to humanitarian studies at large) . Further, while ex post humanitarian evaluation concepts and approaches continue to be developed, by comparison ex ante evaluation does not. Indeed it makes scarcely any appearance whatsoever in any of the standard manuals on gathering outcomes-oriented intelligence, evidence. If, again as I believe that is because quite how to do that is publicly anyway pretty much unknown, we have already a third area for urgent research by a humanitarian studies programme – including research to determine whether, if so how, when, and by which humanitarian agencies or divisions, ex ante modelling of likely outcomes are taken into account or not when deciding where to intervene.

What, on the other hand, has become lately only the more and more widely well known, frequently commented on in the media and elsewhere (for example after Iraq, Afghanistan, Libya), is humanitarian’s dark side: its errance-in-practice. Compassion across borders (or for that matter domestically), carried out whether smartly or otherwise, can kill as well as cure; be directed with care and responsibility or without; be wrongly assumed to work best either in a vacuum or through ‘mechanisms’ only. Moreover, it comes often with nothing but angry disconnects between two of its main sub-cultures (as an anthropologist would call them) of engagement, practice, and alterity: international humanitarian succour through for example emergency relief assistance, and international human solidarity through human rights protection. While even severely critical evaluation studies may not fail to recognise that, while either assistance or protection ‘saves lives’, in other regards or cases there may be little positive effect, or even some matters made worse. Civil, and military, humanitarian intervention, are alike in this regard, anyway as in civil-police-military (CIMPIT) operations often they find themselves combined somehow.

As for assistance people and protection people and their mores and ways, who qualify or do not qualify as ‘humanitarian’, ‘life saving’, can at time be constantly at issue each each denying the other set that encomium.

By the way, when the history of humanitarian assistance comes to be written, there will, I am sure be something to distil and learn from perhaps the first (fragmentarily) recorded instance international humanitarian assistance (ex post) evaluation that – somewhat serendipitly – my own reading has come up with as to outcomes: what has survived of the Roman evaluations of the outcomes (and surrounding issues) of their susciperetur humanitate to the goths as their empire was failing. It is extraordinary how absolutely contemporary what was perceived then, and as perceived then, remain today, two millennia later.

Being still largely institutionalised in part in patterns which are more supply-, than demand-, conditioned, humanitarian assistance and/or protection by itself guarantees nothing other than for some self-righteousness, personal redemption, and the like, not an effective service and its delivery and disribution; is not necessarily a self-evident good to those in whose image, and for whose needs, its funders and providers validate, brand and perhaps deliver it even when in accordance with ICRC protocol . It may even escape serious ex post outcomes-oriented evaluation and accountability altogether, let alone the ex ante kind of anticipatory evaluation the normal absence of which in public has been already noticed. The extent to which big aid charities in the UK know and say – if mainly only in closed meetings? – that they can now raise resources relatively ‘easily’ and ‘regardless’ of any pressures to guarantee proportionate results , is currently another part of the broader picture of the current international humanitarian aid scene. When, belatedly three months or so ago in London, I came to realize that hard fact of the matter, when attending one such closed meeting as kindly invited, I confess I was greatly surprised, and disconcerted. Moreover it followed another – to me – revelation only a week earlier, a finding from some new historical research: some of the presently major UK charities at their very beginnings, while open to charges of being amateur and unprofessional in some regards, were never that in their fund raising.

To research the humanitarian morality of various kinds of material and immaterial action taken – or threatened or withheld or denied – across borders in the name of humanity, continues therefore to have a number of difficult challenges to contend with, starting with the concept ‘morality’ itself, and ‘humanity’ [followed then by that of ‘intervention’ – whether military or civil – as to be worked through in my last seminar in this series of four, to be given as was the first at Bjorknes: the second, tomorrow, is what a couple of months of ‘small print’ qualitative anthropological interviews and observations (by Luigi Achilli and myself assisted greatly by Alice Massari) earlier this year among the UNHCR-defined Syrian refugees in Jordan, while specifically as commissioned on nutrition, threw up that if followed up by further, quantitative research this time, might potentially feed a different wider picture than appears to be generally accepted at present].

Among much else, what for the research proposed is required for present purposes is recourse to not an abstract, academic, moral philosophy, and merely a dictionary, etymological, type of definition of what morally (and otherwise) it means to be humanitarian, so much as an ethnographically- grounded approach to humanitarian morality-in-practice. Humanitarian justice as for example actually delivered by the Hague court is as much – or more – an output of its (divided) operational culture, as of any single best theory of international law. Humanitarian reason, far from being a matter of cognition and the intellect alone, goes beyond ordinary logic. Humanitarian praxis is much more than just effective practice, and project operations, only.

Present purposes then will be best served then by relationally dimensionalizing, rather than to seeking to come up with any single, trumping, best defining of, what humanitarian ought to be, or is, or does. Hence ‘the humanitarian triad’ of the present remarks. Humanitarian praxis, whether under fire or not, is normally as highly emotionally charged and fraught as at the same time from case to case, and context to context, is logically and practically demanding, necessarily as pragmatic as again at the same time principled. Aswellas-ism reigns.

 ……

Note by Professor Apthorpe:

An anthropologist of sorts, I have the honour currently of being currently a Vice President of Council at the Royal Anthropological Institute, London, and likely from next month also awarded a visiting, teaching, professorship in humanitarian studies at the LSE in that city. I confess to not yet having given up on wanting to bring between covers something based on my 2005-2009 classes on international humanitarian assistance that were devised for an optional (but hugely subscribed) course in an ANU graduate programme in international affairs (that originally was co-sponsored by PRIO and boasted a number of Norwegian civil, and sometimes also military, participants each year, indeed my present kind host at Bjorknes was one – of the former). Given in an international relations department, those classes reflected that setting, and critical theory. Much else remains to be added to the mix. Whether they were the first such university graduate level classes or not, last year under the title now of ‘Post-pieties?’ a souvenir I wrote of them made it to raymondapthorpe.com at least.

Killer Robots: the Future of War?

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In September 2013, PRIO and the Norwegian Centre for Humanitarian Studies hosted the breakfast seminar “Killer Robots: the Future of War?”. The goal of the seminar was to contribute to the public debate on autonomous weapons, and identify key ethical and legal concerns relating to robotic weapon platforms. The event was chaired by Kristin B. Sandvik (PRIO), and the panellists were Alexander Harang (Director, Fredslaget), Kjetil Mujezinovic Larsen (Professor of Law, Norwegian Centre for Human Rights, UiO) and Tobias Mahler (Postdoctoral Fellow, Norwegian Research Center for Computers and Law, UiO). Based on the panel discussion, the following highlights the prospects of banning autonomous weapons and legal and ethical challenges in light of current technological development.

 Killer robots and the case against them

As a result of technological advancement autonomous weapon platforms, or so-called lethal autonomous weapons (LAR), may well be on the horizon of future wars. Such development, however, raises legal and ethical concerns that need discussion and assessment. Chairing the seminar, Kristin Bergtora Sandvik, highlights that such perspectives are absent in current political debates in Norway, and points out that “autonomous weapons might not be at your doorstep tomorrow or next week, but they might be around next month, and we think that it is important that we begin thinking about this, begin understanding what this is actually about, and what the complications are for the future of war.”

Killer robots are defined as weapon systems that identify and attack without any direct human control. As outlined in the Human Rights Watch Losing Humanity Report, unmanned robotic weapons can be divided into three categories. First, human controlled systems, or human in the loop systems, are weapon systems that can perform tasks delegated to them independently, but where humans are in the loop. This category constitutes the currently available LAR technology. Second, human supervised systems, or human on the loop systems, are weapon systems that can conduct targeting processes independently, but theoretically remain on the real-time supervision of a human operator who can override these automatic decisions. Third, fully autonomous systems, or the human out of the loop systems, are weapon systems that can search, identify, select and attack targets without any human control.

Alexander Harang highlights four particular issues when using such weapon systems. Firstly, killer robots may potentially lower the threshold of armed conflict. As Harang emphasizes, “it is easier to kill with a joystick than a knife”. Secondly, the development, deployment and use of armed autonomous unmanned systems should be prohibited, as machines should not be allowed to make the decision to kill people. Thirdly, the range and deployment of weapons carried out by unmanned systems is threatening to other states and should therefore be limited. Fourthly, that the arming of unmanned weapon platforms with nuclear weapons should be a banned.

As a response to these challenges, the Campaign to Stop Killer Robots urgently calls upon the international community to establish an arms control regime to reduce the threat posed by robotic systems. More specifically, the Campaign calls for an international agreement to prohibit fully autonomous weapon platforms. The Campaign is an international coalition of 43 NGOs based in twenty countries, supported by eight international organisations, a range of scientists, Nobel laureates and regional and national NGOs. The Campaign has already served as a forum for high-level discussion. So far, 24 states at the UN Human Rights Council have participated in talks. The Campaign has also brought these demands further at the 2013 meeting on the Convention on Certain Conventional Weapons (CCW), where more than 20 state representatives participated. Harang emphasizes that “the window of opportunity is open now, and [the issue] should be addressed before the military industrial complex proceeds with further development of these weapon systems.”

Finally, Harang notes the difficulties in establishing clear patterns of accountability in war. Who is responsible when a robot kills in the battlefield? Who is accountable in the event of malfunction where an innocent civilian is killed? In legal terms, it is unclear where the responsibility and accountability lies, and whether this is somewhere in the military chain of command or with the software developer. One thing is certain: the robot cannot be held accountable or be persecuted if IHL is violated.

 

The legal conundrum

Although unmanned robotic technology is developing rapidly, there is a slow evolution on the laws which governs these matters. In the legal context it is important to assess how autonomous weapon systems exist and conform to existing legislation; may it be international humanitarian law, human rights law or general international law. Harang emphasizes that this technology also challenges arms control regimes and the existing disarmament machinery. In particular, this issue raises concerns with regards to humanitarian law, in which distinction between civilian and combatants in war is a requirement. Addressing such legal concerns, Kjetil Mujezinovic Larsen reflects on how fully autonomous weapons can be discussed in light of existing international humanitarian law. Larsen sets out some legal premises for discussion on whether such weapons are already illegal and whether they should be banned or not.

Under IHL, autonomous weapon platforms can either be inherently unlawful or potentially unlawful. Such weapons can then be evaluated with considerations to two particular principles of IHL, namely that of proportionality and distinction. Inherently unlawful weapons are always prohibited. Some weapons are lawful, but might be used in an unlawful manner. Where do autonomous weapons fit?

Larsen explains that unlawful weapons are weapons that, by construct, cause superfluous injury or unnecessary suffering, such as chemical and biological weapons. As codified under IHL, such weapons are unlawful with regards to the principle of proportionality, for the protection of combatants. This prohibition does not immediately apply to autonomous weapons, because it is concerned with the effect of the weapons on the targeted individual, not with the manner of engagement. The concern with autonomous weapons lies precisely in the way they are deployed. So, if autonomous weapons are used to deploy chemical, biological or nuclear weapons, then they would clearly be unlawful.

Furthermore, as outlined in IHL, any armed attack must be targeted at a military target. This is to ensure that the attack distinguishes between civilians and combatants. If a weapon is incapable of making that discrimination, it is inherently unlawful. Due to the inability of robots to discriminate between civilians and combatants, using them would imply uncontrollable effects. Thus, such weapons are incapable of complying with the principles of distinction, which is fundamental in international humanitarian law.

The Human Rights Watch’s Losing Humanity Report states that “An initial evaluation of fully autonomous weapons shows that even with the proposed compliance mechanisms, such robots would appear to be incapable of abiding by the key principles of international humanitarian law. They would be unable to follow the rules of distinction, proportionality, and military necessity”. However, as Christof Heyns states in his report to the Human Rights Council “it is not clear at present how LARs could be capable of satisfying IHL and IHRL requirements [.]”

As Larsen highlights, the question of compliance is a big controversy in the legal sphere. From one legal viewpoint, the threshold for prohibiting weapons is rather high. Hard-core IHL lawyers will say that prohibition will only apply if there are no circumstances whatsoever where an autonomous weapon can be used lawfully. For example, there are defensive autonomous weapons that are programmed to destroy incoming missiles. Autonomous weapons are also used to target military objectives in remote areas where there is no civilian involvement. Under these circumstances, autonomous weapons do not face the problem of distinction and discrimination. However, the presumption of civilian status in IHL states that in case of doubt as to whether a civilian or an individual is a combatant or a civilian, he or she should be treated as a civilian. Will technology be able to make such assessments and take precautions to avoid civilian casualty?  How can an autonomous weapon be capable of doubt, and act on doubt?

In addition to such legal concerns, Larsen also discusses a range of ethical and societal concerns. Some argue that autonomous weapons will make it easier to wage war, because there is less risk of death and injury to own soldiers. Such technology can also make it easier for authoritarian leaders to suppress their own people, because the risk of a military coup is reduced. Furthermore, using autonomous weapons increase the distance between the soldier and the battlefield, and make human emotions and ethical considerations irrelevant. The nature of warring would change, as robots cannot show compassion or mercy.

On the other hand, some scholars argue that such weapons may be advantageous in terms of IHL. Soldiers, under psychological pressure and steered by emotions, can choose to disobey IHL. An autonomous weapon would not have the reason or capacity to snap, and robots may achieve military goals with less violence. This is based on the argument that soldiers can kill in order to avoid being killed. As robots would not be subject to such a dilemma, it could be easier for them to capture and not kill the enemy.

Potentially, autonomous weapons can make the use of violence more precise, leading to less damage and risk for civilians. This, however, requires a substantial development of software. Throughout history, weapons have always been a passive tool that humans have actively manipulated to achieve a certain purpose. Larsen suggests that if active manipulation is taken out of the equation, perhaps autonomous weapons cannot be considered as weapons in the IHL sense. Perhaps the IHL is as such insufficient to resolve the legal disputes about LAR. This would call for the establishment of new laws and regulations to outline the issue of accountability. Alternatively, a ban could resolve the dispute of the level of unlawfulness, by constituting them as inherently unlawful. Regardless, Larsen emphasizes the urgent need of a comprehensive and clear legal framework, particularly due to the rapid technological development in this field. Larsen also notes that lawyers have to defer to technology experts to define whether such technology can comply with current legal frameworks.

 

Technological determinism?

Due to technological advancement, Tobias Mahler argues that it is realistic to expect automated and autonomous technology to be implemented in all spheres of society in the near future. In this context, how realistic is a ban of killer robots? Mahler views the chances to be slim, and foresees a technological domino effect, implying that once some states acquire autonomous robots other states are expected to follow. From a technological and military perspective, the incentives for doing so are fairly strong.

In addition to the conventional features of LARs, such as surveillance equipment, robustness and versatility, robots can also be programmed to communicate with each other. This would imply programming different vehicles to share and exploit the information they collect, advancing the strategic approach to finding and attacking targets. Such communication between machines is already used in civilian technology such as autonomous vehicles, and is also assumed to be in use in the military complex. Such development and advanced of military technology is not presented to the public, due to strategic and security considerations. Thus, the technological opportunities of LARs are immense for the military sector.

Mahler emphasizes that although the military hardware may look frightening, the real threat lies in the algorithms of the software determining the decisions that are made. It is the software that controls the hardware and makes decisions concerning human lives. Robots rely on human specifications on what to do through software. Due to limitations of what programmers can specify, software development is prone to shortcomings and challenges. How do we deal with the artificial intelligence of autonomous robots?

Software malfunctions as well as hacking are problems in all spheres where technology is used. In a future comprised by technology any device could cause potential harm for civilians. In this context, Mahler suggests that there is still not full clarity to what a killer robot is. Questioning the relative lethality of autonomous weapons, he suggests that “in 20 year, when everything will be autonomous, you might be killed by a door.” However, he points out that the concerns related to autonomous weapon systems should be ignored or avoided. This argument simply points to that such challenges are present in both the civilian context and the military context.” Nevertheless, it is unclear who the responsible party would be when using killer robots.

Other concerns raised by Mahler regard whether LAR technology differs from other types of weapon technology, and may change the nature of war. In a war situation, would soldiers prefer to be attacked by another soldier, or a killer robot? How will the dehumanization of war impact soldiers and the public? It is correct to assume that soldiers would prefer to fight with other soldiers? A soldier in a combat situation could make an ethical consideration and show mercy, contrary to robots. However, there is not much evidence which suggests that mercy is commonly used among soldiers. On the other hand, governments could gain great public support by promoting LARs as a means to limiting loss of soldiers. As Mahler states, “people are really concerned about loss of lives of their soldiers, and if there is any way to protect them, then one might go that way.”

One of the questions that remain unanswered is whether software-developers are able to program software sufficiently advanced for autonomous war machines. One way of dealing with such concerns would be to develop robots that comply with IHL. Mahler ponders whether a pre-emptive ban may be too late in light of the current technological development. Perhaps the aim should be to regulate the robots and artificial intelligence in a way so they comply with the current legislation.

In this regard, Mahler points out the need for further development of the current conceptual framework of war and the law of armed conflict. Perhaps the current concepts used in IHL may be insufficient for the future of war. For instance, in a situation where robots are fighting robots, who are considered to be combatants under IHL? Is it the software programmer or the president who decided to send out the killer robot? Future technology could perhaps be able to distinguish between civilians and combatants using face recognition or iris scans. For now, however, this issue remains unresolved.

Regardless of technological inevitability, further discussion on this issue is necessary. Legal, ethical and societal challenges must be identified, and the means to solve these challenges must be specified. Addressing these issues is important in order to curb unintended humanitarian consequences and implications in the future. Perhaps these consequences may be avoided through a ban on LAR system or that current concepts of IHL need to be broadened in order to tackle legal shortcomings. Maybe software developers will one day be able to write programs that comply with IHL. Nevertheless, it is important to discuss and address these issues based on present knowledge and tools we have in place. The future of war is still not determined.

Literature:

United Nations General Assembly – Human Rights Council (2013) “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns”. Available at http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A-HRC-23-47_en.pdf

Human Rights Watch (2012) “Losing Humanity Report”. Available at http://www.hrw.org/node/111291/section/1

Campain to Stop Killer Robots (2013) “Who we are”. Available at http://www.stopkillerrobots.org/coalition

The complete video of the “Killer Robots: the future of War?” seminar is available here.

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.

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?

Humanitarianism and Weapons: Should a ban on nuclear weapons rely on humanitarian principles?

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4-5 March 2013, The Norwegian Ministry of Foreign Affairs hosts an international conference on the humanitarian impact of nuclear weapons. In conjunction with this event, the international campaign to abolish nuclear weapons (ICAN) organised a two day ‘civil society forum’ in Oslo this weekend, with more than 500 participants. This blog post is based on my brief introduction to a panel there on ‘ethics in international politics’ that centered on the following questions: ‘What does it take for ethical arguments to trump the vested interests of powerful actors? How can we elevate ethical concerns to the center-stage of international decision-making processes?’

Often, a distinction is drawn between instrumental self-serving reasoning and ethical reasoning concerned with the interests of others. A similar distinction is commonly drawn in international politics between realpolitik, based on the self-serving reasoning of states, and ethics, involving an altruistic commitment to issues like humanitarianism, human rights and peace. Framing nuclear weapons as a humanitarian concern situates it in the latter category.

If ethical arguments in favour of banning nuclear arms are limited to this notion of ethics as altruism, it will fail in trumping the vested interests of powerful states. Crudely speaking, international politics are driven by the self-preservation of states and corporations, and a campaign against nuclear weapons has to engage with these premises in order to be ‘speaking truth to power’. This is not to say that any commitment by states to universal human rights and humanitarianism would be a fraud. However, as soon as these norms start conflicting with self-interest, they stand to lose. The strength and condition for international humanitarian law, like the laws of war, is that they actually are useful for the do not

The campaign to abolish nuclear weapons is inspired by successful campaigns for the abolishment of anti-personnel landmines and cluster munitions. As these were rooted in a humanitarian agenda, one might claim that they prove me wrong. Yet, when it comes to the self-preservation of major powers there are fundamental differences between landmines and cluster munitions on the one hand and nuclear weapons on the other. Rather than being an essential source of self-preservation, landmines have been a nuisance to major Western powers when intervening in war-torn states around the world over the past decades. Substantive resources have been devoted to de-mining, and a ban on landmines was a useful alternative in this regard. Concerning cluster munitions, the military use of these for major powers was also limited. This recognition was partly obtained by virtue of the campaign against cluster munitions, and this exemplifies how ethical arguments should address the premises of instrumental self-serving reasoning in addition to appealing to humanitarian ideals.

In stark contrast to landmines and cluster munitions, nuclear weapons are commonly conceived as a cornerstone of the power of the permanent five (P5) in the UN Security Council, as well as an existential prerequisite for countries like India, Pakistan and Israel. In a situation where the monopoly of the P5 on nuclear weapons is waning, their skepticism to nuclear disarmament will only be growing. Only if a legal ban were to be combined with credible security guarantees and enforcement mechanisms beyond economic or political sanctions, could their concern for national security be met. To governments with a primary mandate of promoting state security, humanitarian principles appear as irrelevant in this connection.

The good news in this story stem from the extremely bad news of nuclear weapons: that they are inherently contradictory to self-preservation and national security. Combined with a reliable sanctioning regime, a ban would be far more conducive to the security of the citizens of nuclear powers than the reliance on ‘mutual assured destruction’. That the security risk of a conventional military attack is reduced by possessing the weapon is outweighed by far by the security risk of getting caught up in nuclear war. The only way for another nuclear power to win militarily is to launch an attack so devastating that it makes retaliation unlikely. And for non-state actors, launching a nuclear attack may seem more justifiable against countries whose military predominance relies on nuclear arms. In a long term perspective, the likelihood of such scenarios is far from zero if the Non-Proliferation Treaty is not reinforced by a stronger and more consistent regime of nuclear disarmament.

Hence, in addition to appealing to humanitarian norms, the campaign to ban nuclear arms should primarily rely on realist arguments against nuclear weapons as a source of national security. It should seek the support of the citizens of nuclear powers in particular, appealing to their concern for their own security. This, however, would require coupling a ban with enforcement mechanisms of a sort that would require a revolution in multilateralism. Arguably, this would nonetheless be fully in line with the self-interest of major powers.

Given the magnitude of that task, one might rather opt for a humanitarian ban to be adopted by countries that are currently not possessing nuclear weapons. Both in order to prevent them from acquiring such in the future, and as a way of adding moral pressure against the outsiders of the treaty. Yet, in the absence of support by the P5, it would be unlikely that the ban would be coupled by sufficient oversight mechanisms beyond the current UN regime for preventing state and non-state actors from secretly acquiring nuclear weapons. Then, states committed to the ban for humanitarian reasons would suffer militarily, and the division would increase between ‘nuclear rogue states’ on the one hand and ‘good states’ backed by Western nuclear powers on the other. If humanitarian principles were to be blamed for this mistake, it would be a radical blow to the political foundations of the international humanitarian regime as well.

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.