Tag Archives: law

Impunity and the conflation of rape and adultery in Sudan’s Criminal Act

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Under Sudan’s Criminal Act (1991), rape is defined as zina (adultery and fornication) without consent. This constitutes a serious legal obstacle for rape victims in the country.

Hudud (singular, hadd, meaning limit, restriction, or prohibition) are regarded as the ordinances of Allah, and they have fixed punishments derived from Islam. Among the offenses for which hudud penalties are prescribed is zina which is defined as sexual intercourse between a man and woman outside a valid marriage contract and must be proved by confession before the court, the testimony of four adult men, and pregnancy if the woman is unmarried. The punishment is stoning to death for married offenders and 100 lashes for unmarried offenders.

The evidentiary rules applying to zina are historically based on the rationale in classical Islamic law that there should be indisputable evidence for the severe punishment. When applied to rape, however, it contributes to impunity for rape as a conviction can realistically only be secured where the perpetrator confesses to the crime. As the evidence is virtually impossible to obtain, a rapist can only be incriminated if he voluntarily decides to confess. Even in situations where the rape is not reported to the police and no court case is initiated, an unmarried woman who becomes pregnant because of rape is at risk for charges of zina. The consequence, in the words of an activist, is that if you cannot prove rape, you become the perpetrator.” According to the Sudanese scholar Abdel Salam Sidahmed in an article from 2001

“The categorization of rape as a form of zina […]does not just result in a rapist walking free from the court room or receiving a very light sentence, but may even lead to incrimination of the victim of rape”.

In Sudan, the introduction of hudud was embedded in a larger call for Islamization: first under President Nimeiri, who enacted the so-called September Laws in 1983, and later under the Islamists, who came to power in a military coup in 1989. President Omar al-Bashir and his circle of supporters introduced what they called the “civilization project” (al-Mashru al-Hadari). An intrinsic part of this project was the Islamization of Sudanese law, with the hudud penalties incorporated in the Criminal Act. Greater control of women’s bodies and movements and the protection of their morality and honor were central to the Islamization project.

Over the last several years, the reform of criminal law on rape/zina has become a priority for Sudanese women activists, despite government repression of those advocating extensive reforms. The Interim National Constitution of 2005 following the peace agreement sparked a review of Sudan’s laws codified by the current Islamist regime during their 23 years in power, including the Criminal Act.

Meanwhile, the outbreak of armed conflict in the western province of Darfur, with rampant sexual violence, put rape on the agenda of women activists. They highlighted the conflation of rape and zina in the current Criminal Act and the impact of this on rape victims in the Darfur conflict. In the words of a Sudanese activist, “We never thought of sexual violence as an issue. Darfur changed that”. The recent attention by Sudanese activists to sexual violence and the advocacy for reform of Sudan’s laws on rape has coincided with growing international awareness of rape in armed conflict over the last 15 years. Sexual violence has been recognized as a “weapon in war” and as a threat to international peace and security in numerous UN Security Council resolutions.

The ICC’s indictment of Sudan’s president in connection with the systematic practice of rape in Darfur further politicized the debate and the work on criminal law reform. The indictment has proved to be a double-edged sword. It made it possible to put sexual violence, beyond the Darfur conflict, on the political agenda and stirred public debate on the issue for the first time in Sudanese history. At the same time it made activism within this area more difficult because calls for reform are framed as a direct threat to the current government. The room for maneuver is small, and activists operate under severe constraints.

This blog is based on Liv Tønnessen’s  article in Women’s Studies International Forum.

Access the full article here.

Sexual Violence: Monopoly of victimhood?

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In Uganda, data suggests that not only women and girls are sexually assaulted in times of conflict and war, but also men and boys. Yet, male rape victims are almost invisible in interventions and even debates on conflict related sexual violence. Attention is overwhelmingly focused on girls and women. -There is a monopoly of victimhood, says Chris Dolan, Director at the Refugee Law Project at the School of Law, Makerere University.

Women’s protection needs have forcefully been put on the international protection agenda in recent years. The United Nations Security Council Resolution (UNSCR) 1325 states that all parties involved in a conflict must take measures to protect women and girls. The message that women and girls are particularly targeted by the use of sexual violence is also at the forefront in resolutions from 2008 and 2009. What are the consequences of this need to specify protection on the basis of gender?

There has been no corresponding explicit recognition of how sexual violence is used against and affects boys and men in conflict situations. The use of language in resolutions from the Security Council is characteristic of how male victimhood has been treated in the discourse of sexual violence, more broadly says Chris Dolan, Director of the Refugee Law Project at Makerere University.

Invisible victims of sexual violence
Chris Dolan recently participated in the seminar “Gender and the Paradox of War Norms”, organized by the Norwegian Centre for Humanitarian Studies, where researchers working on protection practices in different parts of the world addressed civilians’ needs in conflict and war zones.

The regression to gender essentialism in the interest of a particular pro-women agenda has not only killed the essential emancipatory political potential of a holistic gender analysis. It is also undermining the capacity to provide protection in a meaningful sense, as it has pulled a veil over the protection needs of the other half of the population, says Dolan.

‘Men are strong, women are weak’
In the conflicts and civil wars in Uganda and Congo, rape and sexual assaults have been frequently used as weapons of war. Survivors do not only suffer from severe physical injuries, they are also stigmatized and shunned.

Dolan and his colleagues at the Refugee Law Project have interviewed many male rape victims from Congo and Uganda. According to Dolan, their experiences destabilize one of the most central pillars of patriarchy; that ‘Men are strong, and women are weak’.

The rape victims’ stories strongly suggest that women and men share certain forms of vulnerability in conflicts, he says.

According to Dolan, refugee camps should be key sites for investigations and interventions, and a systematic screening for sexual violence should be done in every conflict. The Refugee Law Project is currently involved in developing a screening method for refugees together with Johns Hopkins School of Public Health, based on their experiences with and interviews of refugees in Uganda and Congo.

Turning the tide
By asking men and women the same questions, the Refugee Law Project has uncovered that many victims of rape are men and boys. Some male rape victims have recently chosen to share their stories in international media and in their local communities. And for the first time, support groups are being made.

In 2013, the UNSCR 2106 for the first time attracted attention to sexual assaults against men and boys. Is this a sign that the tide is about to turn?

What comes out of committees’ talk is always the lowest common denominator. Fortunately, the lowest common denominator is now shifting. The shift in UNSCR 2106 is a sign of progress, but we still have a long way to go. Sexual violence should not be treated as a binary female-male opposition. We need to rethink the way in which language is used, in documents on sexual violence in general, and in resolutions from the Security Council in particular. Even as we work on the language, we need to be developing best practice on working with men and boy survivors, recognizing that even as sexual violence often erases the gender binary, prevention of and responses to such violence need to be gender sensitive if they are to be effective, says Dolan.

The promise and perils of ‘disaster drones’

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The dire humanitarian consequences of the use of unmanned aerial vehicles (UAVs, or drones) in conflict have become all too familiar. In contrast, there has been much less public discussion about the potential humanitarian uses of drones. So-called ‘disaster drones’ offer humanitarian agencies a range of possibilities in relation to crisis mapping, search and rescue and (some way off in the future) cargo transport and relief drops.

How can the humanitarian community benefit from the technological advances that UAVs and other unmanned or automated platforms offer without giving further legitimacy to a UAV industry looking for civilian applications for drones developed for military purposes? Are there particular ethical, legal and financial implications with respect to procuring disaster drones? This article gives an overview of current and foreseeable uses of disaster drones and ‘(ro)bots without borders’, highlighting the need for a more thorough understanding of the commercial logic underpinning the transfer of technology from the military to the civilian and humanitarian fields, and the systematic attempts being made by the UAV industry to rebrand itself as a humanitarian actor. It also shares insights from a recent workshop on the potential role of drones in Red Cross search and rescue operations, and concludes by linking the issue of the disaster drone to broader questions regarding humanitarian technology.

Available at: Sandvik, Kristin Bergtora & Lohne, Kjersti (2013). The promise and perils of ‘disaster drones’. Humanitarian Exchange Magazine.  ISSN 1472-4847.  (58).

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.

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.

Land of Confusion – Protection of Women and Children in Liberia

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In spite of the efforts made by international actors to have the Liberian National Police’s (LNP) Women and Children Protection Section (WACPS) working to provide women and children with a special recourse to justice institutions, a number of challenges remain unaddressed. Many of these challenges are also a product of how these sections were established and funded, the lack of a coherent and comprehensive understanding of the functioning of justice institutions in Liberia, the challenges reforming or building these institutions represent, and how these new institutions are to interact with traditional institutions and practices. In 2008 there was a WACPS of the LNP in every county capital in Liberia (fifteen in total). In spite of these efforts, however, UNMIL has been forced to recognize the fact that “sexual violence against women and children remains a central reality of life in Liberia” (UNMIL 2008b).

The WACPS were established with the intention of addressing the pressing concerns the international community had with GBV in Liberia. That women and children now had a dedicated section within the LNP which dealt with GBV no doubt would ensure that these issues were addressed by the police. The question which nevertheless remained was: what happened with a case after it was reported to WACPS. For instance, one of the issues the establishment of WACPS was meant to address is the relatively high degree of impunity for GBV crimes. But as a legal specialist interviewed in Monrovia exclaimed to us, “The problem in Liberia is not that victims of rape don’t get justice, but that no one gets justice!” In a country where judges in many cases do not have knowledge of the penal code, and where the police only rarely possess investigative tools and skills, it is doubtful whether the establishment of the WACPS alone will lead to a higher rate of conviction. Furthermore, the problems may be exacerbated by the fact that victims who do report crimes lose faith in the institutions of justice, as reported criminals seldom face convictions. Furthermore, while the institutions of rule of law are to some degree present in Monrovia, they often lack outside of the capital. As one NGO worker involved in GBV work explained, “No place outside of Monrovia has all the pieces of rule of law”. The major international presence in Liberia is in Monrovia, and as such inferences about the spread of rule of law institutions in general, and the WACPS in particular to the whole country must be done carefully – if at all. As one NGO worker said to us in Monrovia, “What’s in it for the victims? Why should they report a rape when they know the perpetrator and nothing ever really happens?”

 “Modern” and Traditional Justice Institutions

The efforts to address GBV and the impunity of perpetrators as well as the general (re)building of the institutions of the rule of law must be seen in the context of which functions the new institutions are to fulfill, and which ones are already fulfilled by the traditional “justice” system. Rather than seeking to supplant the traditional system, one needs to understand how these systems can supplement each other. In this respect it is important to understand how they interact in practice today. As became clear to us, victims of GBV do not always get their cases investigated. As one police officer told us, once a victim has reported a crime the police “investigate, but sometimes compromise.” Recourse to the WACPS in other words is no guarantee that the case will be investigated or passed through the court system. And while it is beyond the scope of this brief to address the desirability of this, one thing is nevertheless clear: As long as the international community has absolutely no understanding of how the traditional system works, there is little chance that effective measures to counter GBV in rural areas will succeed. The view advanced by most representatives of the international community we met during three fieldworks in Liberia simply goes to show the extent to which the UN system lacks the knowledge to address GBV in a comprehensive manner.

 Conclusion

The point of this blog post has not been to denigrate the efforts made by international donors and the UN. Addressing the problem of GBV in Liberia cannot be done without their support. However, these efforts so far have tended to fit the donors’ own agenda rather than the needs on the ground. One consequence of this is that efforts to reform and (re)build rule of law institutions by the international community are done without the most basic knowledge of how the administration of justice functions in Liberia. Furthermore, it is often done without thinking about the consequences of these efforts with respect to other rule of law institutions. As a result, efforts such as the WACPS do not function as well as they were intended. Budgets for logistical follow up are not provided for, the equipment provided does not fit the working routines of the LNP, and while the WACPS might function to some extent when looked upon separately, when seen in relation to other rule of law institutions, the efforts seem quite often misplaced as no efforts are made at addressing the system comprehensively.

Literature

UNICEF (2005) “New women and children protection section for Liberia’s police”. Available at http://www.unicef.org/media/media_28159.html

UNMIL (2008a) “New Confidence in Liberian Police Has More Women and Children Reporting Crime” 15 June. Available at http://unmil.org/article.asp?id=2788

UNMIL (2008b) “Liberia: UNMIL Humanitarian Situation” Report No. 156, 24 November. Available at http://www.reliefweb.int/rw/rwb.nsf/db900SID/EGUA7LPQBP?OpenDocument

UNMIL (2008c) “UNPOL Commissioner urges for the protection of women and children against sexual violence and abuse” 01 December. Available at http://unmil.org/article.asp?id=3036

UNMIL (2008d) “Continued human and financial support needed to bolster Liberia’s Police Force” 15 December. Available at http://unmil.org/1article.asp?id=3057&zdoc=1

Norwegian Embassy in Côte d’Ivoire (2008) “Norway commended for supporting Liberia’s recovery” available at http://www.norvege.ci/info/Coop%C3%A9ration/MedaljeseremoniPoliti.Liberia.htm

Jus Post Bellum

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There is, as we know, a huge literature on what is commonly called the international peacebuilding regime. Most of this work is produced by political scientists, and much of it is in the criticism-of- the- liberal-peace genre. But now legal scholars have entered this field in a serious way to examine and develop the concept of jus post bellum. To what extent is the international peacebuilding regime resting on a coherent body of norms or law, the post-war equivalent to jus ad bellum and jus in bello? What is the nature and function of law in the transition from war to peace? What should be the role of law in the war-to-peace transitions – ‘black letter’ law, a set of moral norms that provide standards for policy or, more modestly, a ‘site of discourse’ that could increase coherence in peacebuilding initiatives?

These are the initial questions discussed in a new (and huge – 600 pages) volume. Entitled simply Jus Post Bellum, the book is the result of an ongoing project at Leiden University led by Carsten Stahn, who heads the University’s Grotius Center.

As a hard-core political scientist who was invited to participate in a conference organized by the jus post bellum project and contribute to the book of same name, and I need a little time to refocus. Once refocused, I found the project an exciting endeavour to systematically explore an aspect of peacebuilding that until now has been little studied.

The point of departure is the recent work by Larry May, whose After War Ends (2012), examines the principles for a just post-conflict peace in the tradition of just war theory. May proposes six moral norms as the basis for a body law to frame the transition from war to peace: rebuilding, retribution, reconciliation, restitution, reparation and proportionality.

The book Jus Post Bellum critically investigates to what extent these and related principles could give rise to a body of law for post-conflict situations, and whether such efforts are indeed justified. Could efforts to develop law in this field be counter-productive, given the variety of post-war situations, the political hegemony of Western powers in the bodies that  define law, the difficulties of defining both the beginning and the end of  the ‘post-conflict’ period, and the uncertain boundaries between ‘war’ and ‘peace’? As political anthropologist David Keen entitled an article he wrote for International Peacekeeping several years ago (vol.7, no.4), ‘War and Peace, What is the Difference?’

As an edited volume with contributions from political scientists as well as legal scholars, Jus Post Bellum speaks with many voices. It provides no equivocal answers to the questions above. The diversity of approaches and conclusions is indeed a major strength of the book. Legal scholars have the last word as they  seek in the concluding section of the volume to ‘distil a set of principles that inform the creation and sustainability of resilient and peaceful post-conflict societies,’ as Jennifer Easterday, Jens Iverson and Carsten Stahn write. To the (legal) untrained eye, these principles seem not so different from the norms identified by Larry May, and which appear to have framed the historical development of the international peacebuilding regime during the past almost two decades.

The book Jus Post Bellum, edited by Carsten Stahn, Jennifer Easterday and Jens Iverson will be published by Oxford University Press in February 2014 in hardback and as an e-book.

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.