This post first appeared on “ALNAP” and is re-posted here.

In the wake of the scandal in Haiti revolving around sexual misconduct by Oxfam staff in the aftermath of the 2010 Earthquake, the aid sector is now engaging in ‘safeguarding’ exercises. While initially based on a UK legal definition that applied to vulnerable adults and children, safeguarding has acquired a broader meaning, which includes all actions by aid actors to protect staff from harm (abuse, sexual harassment and violence) and to ensure staff do not harm beneficiaries. However, despite good intentions, I suggest that the safeguarding response has some problematic qualities which need to be discussed. Here I will focus on two:

Formulating inclusive and informed safeguarding

First, as we move from arguments for the legitimacy of safeguarding initiatives, to a discussion of the legitimacy of how they are implemented, there has been vocal concern about the lack of inclusivity to this extent. Critics have noted that a “safeguarding industry was hatched, and experts magically appeared and promises of change were made’ with little attention to local and national contexts or participation.

These types of objections speak to the sector’s long-standing struggle with bottom-up accountability. The view that safeguarding is yet another Western-centric practice, and frustrated complaints about the absence of meaningful field participation and local consultations when formulating safeguarding approaches, need to be taken seriously and addressed carefully – with the cognisance that the underlying issues of discontent go much beyond safeguarding.

However, I think we need to be clear that technical and ‘programming’ conversations around safeguarding also expose difficult and normally ‘hidden’ contestations over privilege, power and race. Where long-standing struggles of women of colour in aid crash head-on into the whiteness of the Me Too movement, the whiteness of ‘humanitarian feminism’ and the whiteness of the sector more generally. Here I think the sector – including reform minded individuals – could be more honest about who is around the table and why, and display a greater willingness to engage: this type of conversation is and will be uncomfortable – but if we want to go anywhere with safeguarding, so be it.

Establishing clarity not de facto criminalisation

The second issue pertains to the inherent vagueness and malleability of the concept. While problems in the sector are frequently attributed to a ‘lack of clear definition’ of an emerging challenge, something else seems to be at play here.  At its core, the idea of safeguarding is to reinforce the humanitarian imperative to Do No Harm, by preventing ‘sexual abuse and exploitation’. Humanitarians have long been concerned about this and tried to do something about it. For decades, sexual exploitation has been considered the worst possible behaviour humanitarian workers can be guilty of, but it has perhaps not been quite so clear what constitutes exploitation and which relationships exploitation takes place in.

Previously too many behaviours and relationships were left out of the equation for behavioural mores in the sector – but are we on the road to leaving too many in today? Is safeguarding at risk of becoming some sort of moral trojan horse that implants new social and political struggles into the humanitarian space?

I am here particularly thinking about transactional sex. The interpretation of what safeguarding means is also shaped by changing cultural perceptions of transactional sex and prostitution, primarily in the Global North. While the Me Too campaign is of very recent date, it links up with a more longstanding trend in big donor countries, namely the de facto criminalisation of prostitution by criminalising the buyer. Whereas Codes of Conduct have been promoted as a key mechanism for governing the sexual behaviour of humanitarian workers, the act of buying sex is increasingly construed legally and ideologically as a criminal practice.

In my view, this is possibly the most difficult field of social practice covered by safeguarding, and where it is vital to think carefully so that one can navigate the fine line between justifiable moral censure and moralistic outrage. Is moralistic outrage necessarily a bad thing? The view appears to be emerging that paying for sex, anywhere and at any time, is incompatible with being a ‘good’ humanitarian worker and dependable employee; the distinction between paying for sex and exploiting someone for sex is being erased.

While buying sex in the 1980s, for example, appears to have been a fairly common practice in the aid world (broadly defined), much of the moral indignation previously linked to prostitution and aid was linked to the HIV/AIDS epidemic and the fact that buying sex helped spread the epidemic at home and abroad. Today, in such donor countries as Canada, France, Iceland, Ireland, Norway and Sweden, buying sex is illegal and is punished with fines or prison sentences. At the same time, criminalisation remains extremely controversial, and the extent of this controversy is perhaps getting lost as the abolitionist approach travels to the humanitarian space.

Global prostitution activism has long been an ideological battlefield, with a seemingly unbridgeable abyss between those who see prostitution as violence against women and those who want it regulated as work, regardless of gender.  What are the costs and trade-offs of transporting this battlefield into humanitarian practice? While I am not aware of any comprehensive effort to track the consequences of criminalisation for sex workers, new research indicates that vulnerable women in prostitution become more vulnerable through criminalisation in the Global North.

Thus, when trying to gauge an appropriate scope for the idea of safeguarding, I think it is necessary to reflect on the usefulness (and normative appropriateness) of maintaining a strong conceptual distinction between procuring sexual services from individuals receiving aid or falling under protection mandates, from sex workers who are not recipients of aid nor in a position of vulnerability in a specific humanitarian field setting.

It is now widely recognised that buying sex in emergencies rests on deep power differences, is fundamentally unacceptable and as such threatens the legitimacy of the sector. While this recognition is long overdue, its emergence should be seen as progress. However, this does not imply that safeguarding practices should be used as a vehicle for criminalising buyers and abolishing prostitution going forward.

This is the sixth and final post in a series on ‘Penal Humanitarianism’, edited by Kjersti Lohne. The posts center around Mary Bosworth’s concept and Kjersti Lohne’s development of penal humanitarianism, and how penal power is justified and extended through the invocation of humanitarian reason. The blog posts were first posted on the “Border Criminologies” blog, and are re-posted here. This post argues that the 2011 Nato intervention in Libya mimics a reaction similar to that of the state, suggesting that the ‘right to punish’ is re-articulated outside the state and within the international.

Jus Puniendi in the International?

Penal humanitarianism – the combination of punitive sentiments and humanitarian ideals – is increasingly moving the ‘power to punish’ beyond the state – not only in relation to migration and international criminal justice; but also in relation to the use of military force to protect vulnerable populations facing systematic violence. Since the 1990s, the use of military interventions has been increasingly launched following humanitarian sentiments towards far away populations subjected to mass violence and in conjunction with human rights imperatives, conveying the idea of ‘doing justice’ through war. This inscription of war among the tools to sanction wrong-doing is linked to the increased status of human rights as global norms for the protection of individuals from violence.

In this post, I argue that the 2011 Nato intervention in Libya shows how human rights are treated with a mix of political condemnation, judicial proceedings, and military might, to indicate wrong-doing within the international- and thus mimic  a criminal justice reaction similar to that of the state. This suggests that the ‘right to punish’ of the state – its ‘jus puniendi’- is now re-articulated outside the state and within the international.  

Under international law, sovereign states are autonomous and in control of their territory and their population. In this line of thought, the international community has no power to interfere with what happens within the borders of a state. However, against the context described above, in the last 30 years the individual, not the state, has moved to the centre of the protection afforded by international law. Therefore, the international society has the duty to protect individuals when states fail; thus, legitimising military operations. These military practices operate outside state power and often feature multiple states and actors, in ways that change our understanding of what counts as punishment, intersecting with humanitarian sentiments, foreign policy, and postcolonial practices.

The 2011 military intervention in Libya was launched with the approval of the UN Security Council under the Responsibility to Protect (R2P), a rule that sanctions the international community’s ‘collective responsibility to assist populations’ under threat of, or actually experiencing, mass violence in situations where the host state fails to protect them (art 138-139). The UN Resolution authorising military intervention under R2P came as a response to accusations by various power figures, including UK Prime Minister Cameron and French President Sarkozy, of gross human rights violations by the Gaddafi regime against civilians protesting his regime. In this way, powerful actors in the Global North passed a judgment on Libyan elites and their criminality. NATO, swiftly took the lead and intervened militarily, claiming its role as protector of the Libyan people, and framing itself as the authority in charge of enforcing human rights in the region. In other words, it established its jurisdiction over local events. The Libyan leaders – i.e. Gaddafi, his son, acting Prime Minister Salif Al Islam, and former intelligence chief Al Senussi – were indicted by the International Criminal Court’s prosecutor Moreno Ocampo, evidencing that military operations now function within a criminal justice framework.

Linking military might with legal prosecution (or at least court activation) shapes our understanding of war as an ethical mechanism that censures human rights violations perpetrated by individual criminals. As argued by Lohne, these manifestations of penal humanitarianism require more consideration on the effects that these practices have on our understanding of punishment and sovereignty and on the sort of tension these may engender.  

These punitive military operations launched to sanction and end mass violence are often followed by practices of peacekeeping aimed at getting local populations to accept specific rules of coexistence, establishing the local sovereign state and its criminal justice systems through human rights and international standards. After the NATO victory and the death of Gaddafi in controversial circumstances, the UN sent a small contingent to the country to assist with the establishment of peace. These representatives of international society operated on the ground as experts on democratic institutions, training the locals in human rights norms, encouraging them to adopt specific institutional structures, laws and international standards. The UN Secretary General Reports show how these international experts watched and judged local authorities on their institutional practices. UN officials not only urged new authorities to adopt human rights standards as norms, but also constantly monitored their exercise of power making sure it is informed by international best practices. These international experts effectively attempt to operate some sort of pedagogy of liberal institutions, to shape the local sovereign state, at the same time as they tie its power to the Global North; thus, incorporating the new sovereign and its population in its remit. In doing so, the Global North expands its reach; it shapes governance through sovereign structures at the local level while re-articulating sovereign power at the global level. These two sovereign powers should not be seen as hierarchically constituted but as uncomfortably intersecting. The new norm of responsibility to protect re-articulates the principle of protection within the international society, in turn relocating the state’s power and right to punish, as envisioned within the well-known Hobbesian Leviathan idea. This is symptomatic of an international society increasingly thought of as united through reference to humanity, in which the individual is at the centre of protection. However, this framework problematically renders war and in general military force the best instrument to protect life and create order, at the same time as it legitimates neo-colonial enterprises. While not unprecedented, this way of conceptualising war is odd, given that war used to be thought of as the epitome of disorder (anomie), with military strategists confirming that ‘you know how a war may start but never how it ends’.

This is the fifth post in a six-part series on ‘Penal Humanitarianism’, edited by Kjersti Lohne. The posts center around Mary Bosworth’s concept and Kjersti Lohne’s development of penal humanitarianism, and how penal power is justified and extended through the invocation of humanitarian reason. The blog posts were first posted on the “Border Criminologies” blog, and are re-posted here. The research for this post was conducted while Anette Bringedal Houge was a doctoral research fellow at the University of Oslo, and does not reflect the views of the NRC. The post challenges the recent paradigm in which global grievances are interpreted through a legal lens and criminal justice has become the primary means through which conflict-related sexual violence is to be prevented.

The fight Against Impunity for Sexual Violence in Conflict: Penal Humanitarianism Par Excellence?

Whilst sexual violence has been an offence associated both with war and peacetime throughout history, its rise to the tables where international peace and security are negotiated, represents a significant shift. For this reason, last year’s Nobel Peace Prize was an important, hard-fought recognition of rampant sexual violence on a global scale. Indeed, the apex of the fight against impunity for sexual violence thus far was the media coverage of Nobel laureates Dennis Mukwege and Nadia Murad, and their relentless fight against sexual violence. By showing how imageries of humanitarian suffering have shaped the fight against conflict-related sexual violence as the fight against impunity, this blogpost develops work from Lohne’s 2018 Theoretical Criminology article on penal humanitarianism beyond the state.

Until fairly recently, criminal prosecution of conflict-related sexual violence was practically unheard of. Today, criminal prosecution has become key in dealing with conflict-related sexual violence. As an example of how penal power spreads in the name of ‘doing good’, we nonetheless challenge this rapid and exhaustive naturalization of criminal prosecution not only as a means by which conflict-related sexual violence can be addressed, but as the primary means through which such violence is to be prevented. As Karen Engle observed some time ago, while ‘criminalization of wartime rape marches forward … there has been little reflection … on whether more criminalization is necessarily better than less.’

Mindful of the way the associations between punishment and humanitarianism seem particularly strong when disembedded from the nation state framework, the combination of a victim-oriented justification for international justice and graphic reproductions of the violence victims suffer, are central in the international advocacy and policy field that responds to conflict-related sexual violence. In our analysis of human rights reporting on conflict-related sexual violence, we find reports to follow a script, including an abundance of testimonies that detail the violence and the victims’ suffering during and after the offences. The reports as such draw their titles from victims’ testimonies – as illustrated by ‘My heart is cut’ and ‘I just sit and wait to die.’ Maria E. Baaz and Maria Stern have characterized survivor testimonies for this use as constituting a pornography of violence. In order to produce outrage, a discourse on ‘war/rape/porn’ has emerged, where activists try ‘to outdo each other with the most barbaric gang-rape scenario’. Yet while ‘victims’ justice’ is often evoked as the raison d’être of international criminal justice, the fight against impunity also produces particular imageries of perpetrators and criminality. Perpetrators are re-presented as barbarian, bizarre, and inexplicable. We suggest that this particular combination of victim and perpetrator subjectivities, and the reduction of causalities that it implies, serve to legitimize calls to ‘end impunity!’ through the projected, all-encompassing catharsis brought by the criminal justice system.

The categorical representations of good and evil, civilization and barbarity, humanity and inhumanity disguise the expansion of penal power through the fight against conflict-related sexual violence. Yet punishment should always raise awkward questions about violence, power, and its legitimacy, even though, and perhaps especially so, when calls for punishment have become naturalized in response to humanitarian suffering.  

While human suffering is what drives the moral imperative to intervene in the first place, the fight against impunity movement reflects a strong faith in the ability of law in general – and criminal justice in particular – to transform people and societies. In our study, we show how this faith has materialized in a prognostic social movement to end impunity, exemplified by UN Security Council resolutions and reports from Human Rights Watch. However, in spite of the emergence of what Kathryn Sikkink has called the ‘justice cascade’, that is, an increase of criminal prosecutions of human rights violations, there has been far less attention to whether this has led to a corresponding increase in justice. Thus, instead of addressing root causes of war/violence/rape, criminal justice is offered as a solution that will ensure that victims’ ‘plight will be heard and their attackers punished [and that] future rapes can be heeded’. The strong footing of deterrence as justification and rationale for criminal prosecutions of conflict-related sexual violence can partly be explained by the more general embrace of liberal legalism as ideology and practice in international policy. It is a world view that substantially privileges individual autonomy – and responsibility. This means that the individual has increasingly become a subject of international law, with corresponding individual rights and responsibilities. Moreover, it has also substantially juridified our understanding of social phenomena: law (particularly rights-claiming) has become the preferred interpretative tool through which to frame global grievances. It is in this paradigm, the fight against conflict-related sexual violence has become the fight against impunity, to the extent that it is only through ending impunity we can address sexual violence. Prevention has become prosecution as humanitarian calls to end suffering has turned to criminal justice.

However, the construction of criminal justice as a panacea for conflict-related sexual violence zealously overestimates its ability to civilize and transform, and distracts attention away from broader social and structural conditions that foster and allow for sexual violence to take place. Paralleling criticism of domestic carceral feminism, we see a need for greater attention to the political, economic and gendered inequalities and structures within which sexual violence take place. Conflict-related sexual violence is indeed part of a repertoire of illegitimate warfare, and a reaction to the chaotic, desperate and demoralizing experiences that war brings with it, but it is also the result of gendered hierarchies, subordination, and poverty, and a continuum of violence that transgresses war and peace. While our article unpacks how conflict-related sexual violence is reduced to a problem of criminal justice, we also recognize its instrumental capacities as a tool for criminal justice. Epitomizing how humanitarianism can facilitate the expansion of penal power, the fight against impunity for conflict-related sexual violence has produced particularly apt imageries of victims and perpetrators that serve the international criminal justice project, contributing to legitimate its current institutions and practices. If ending impunity prevails and perseveres as the ultimately meaningful response to conflict-related sexual violence despite criminal justice’s limited merits as a preventive tool, it is pertinent to ask if the primary aim of this fight is to prevent conflict-related sexual violence, or rather, to strengthen the penal power of international criminal justice as such.

This is the fourth post in a six-part series on ‘Penal Humanitarianism’, edited by Kjersti Lohne. The posts center around Mary Bosworth’s concept and Kjersti Lohne’s development of penal humanitarianism, and how penal power is justified and extended through the invocation of humanitarian reason. The blog posts were first posted on the “Border Criminologies” blog, and are re-posted here. Drawing on the case of Niger, this post explores some of the processes through which the EU projects penal power beyond Europe and its allegedly humanitarian rationale.

Projecting European Penal Power Beyond Europe: Humanitarian War on Migrant Smuggling in West Africa

The European Union (EU) and its member states are increasingly pushing countries in the southern (extended) neighbourhood to criminalise unwanted mobility, and bolstering their internal security apparatuses and borders. The objective of this ‘internal security assistance’ is to combat transnational security threats and illicit flows of goods and people allegedly en route to Europe. Based on my doctoral research, which has included fieldwork in Niger, Mali, Senegal and Brussels, this post reflects on the EU’s increasing tendency of crime control ‘at a distance’ in West Africa.

Penal power is the power to render an activity criminal and to enforce criminal law, which is neatly entwined with a state’s sovereignty. For instance, Vanessa Barker writes how the reinforcement of national borders within Europe can be seen as a recent expression of state-craft where penal power is particularly salient. Yet Mary Bosworth argues that humanitarianism allows penal power to travel beyond the nation state, as can be observed in cases such as England’s aid to the building of prisons in its former colonies to which it can transfer and expel prisoners from these countries. Developing Bosworth’s concept of ‘penal humanitarianism’ further, Kjersti Lohne shows, through the supranational case of the International Criminal Court (ICC), how the power to punish is particularly driven by humanitarian reason when punishment is disembedded from the nation state altogether.

This blogpost examines some of the processes through which the EU projects penal power beyond Europe and its allegedly humanitarian rationale. I draw on the country case of Niger, which is also an example often used by the EU to showcase a well-functioning partnership in stopping migration to Europe through criminalisation and ‘breaking the business model of human smugglers.’ In this case, penal power is not actually detached from the state. While the EU is both a supranational and inter-governmental entity, I argue it could also be seen as something like ‘pooled European penal power’. This European penal power works through a third state by bolstering this state’s own penal power, without being entirely able to control how this power is in turn utilised in practice. So what is the relation between sovereignty and penal power when the EU border is externalised to West Africa?

European penal power in West Africa

West Africa, and the Sahel region that cuts across the Sahara Desert, have become a priority to the EU and its member states in terms of controlling unwanted mobility. Conceptualising security threats as flows of illicit or dangerous commodities and people crossing borders and spilling into Europe, the EU is now seeking ‘partnerships’ with African regimes to build barriers further south. Substantial efforts are being put into shaping West African penal codes and reinforcing criminal justice and security apparatuses to deal with illicit flows. In order to incentivise an actual change, EU aid and budget support, on which many West African countries depend, is increasingly made conditional upon the adoption of security strategies, the reform of internal security forces and the securing of borders.

One such example is the EU’s much celebrated ‘partnership’ with President Issoufou of Niger. In 2015, conspicuously coinciding with the European ‘migration crisis’, Niger adopted a law criminalising ‘migrant smuggling’. The EU assisted Niger in drafting the law and provided advice, training and capacity-building for its enforcement. This was done, among other, through the Common Security and Defence Policy (CSDP) mission EUCAP Sahel Niger, and through projects financed by the EU Emergency Trust Fund for Africa. EU aid to Niger continued to grow, and in December 2017 the European Commission announced 1 billion euro in support by 2020, as Niger had demonstrated ‘strong political willingness and leadership’ to confront challenges. Indeed, in 2016 Nigerien authorities started rigorously enforcing the law, selectively in the northern town of Agadez which had figured in the international press as the hub for migrants travelling to Libya and Algeria. Since then more than 130 ‘migrant smugglers’ have been arrested and their vehicles seized, and the number of migrants crossing into Libya registered by the International Organisation for Migration (IOM) is reported to have dropped. The Niger migrant smuggling law and its enforcement is seen as so successful that the EU wants to replicate it in other Sahel countries as well.

Penal humanitarianism at Europe’s extraterritorial border

The rationale behind the EU’s fight against ‘migrant smugglers’ in Niger is framed as a humanitarian obligation: stopping migrants from travelling through Niger equals saving them from dying in the hands of evil people smugglers or in Libyan detention camps. This is not very different from Libya further north, where the EU’s training of the ‘coast guard’ is justified by saving people from drowning in the Mediterranean. Nor is it very different from the EU’s external borders where, according to Katja Franko and Helene Gundhus, the discourse of protecting the human rights of migrants permeate the borderwork of Frontex officers.

Civil society organisations (CSOs) in Niger and the local population in Agadez are strongly opposed to the criminal category of ‘migrant smuggling’ as it relates to Nigerien reality. Guiding people through the desert has been a noble, traditional role for centuries, and now-called migrant smugglers are not ‘organised crime syndicates’ as the European Commission assumes (also see Sanchez, 2015). Moreover, CSOs claim the new law is de facto suspending the Economic Community of West African States (ECOWAS) Protocol on free movement for ECOWAS citizens, which most of the migrants are. Intra-African migration is a crucial livelihood strategy in a region fraught with periodical extreme drought and climate change. Research also documented severe de-stabilising effects of the law enforcement as the economy of the region of Agadez collapsed, leading the local population to lose their livelihoods, fuelling economic frustrations and anger, and increasing armed banditry and general insecurity.

Conclusions

The case of EU policies in Niger corroborates the argument that penal power can take on a humanitarian rationale when it travels. This seems to be particularly the case when criminal justice, migration control, international development and foreign policy intersect. Complicating the relationship between sovereignty and penal power, Niger’s sovereignty is both hollowed out by mediating European ‘pooled’ penal power and at the same time boosted by the co-option of aid into President Issoufou’s personal goals. What is certain is that the security of Europe does not equal the human security of migrants or local Nigerien communities, nor does the latter equal the security of the Nigerien regime.

This is the third post in a six-part series on ‘Penal Humanitarianism’, edited by Kjersti Lohne. The posts center around Mary Bosworth’s concept and Kjersti Lohne’s development of penal humanitarianism, and how penal power is justified and extended through the invocation of humanitarian reason. The blog posts were first posted on the “Border Criminologies” blog, and are re-posted here. This post delves into how individuals tasked with carrying out state policies on border control react to direct encounters with human suffering, and the implications such interpersonal encounters may have on border studies as a whole.

Moral Discomfort at the Border: Understanding Penal Humanitarianism in Practice

A growing body of recent scholarship has pointed out the intricate connections between the exercise of penal power and humanitarianism in general, as well humanitarianism at the border (see e.g. Fassin; Bosworth; Lohne). This research has shown the centrality of humanitarian ideals and language within different penal sites and programs such as prison building programs abroad, the International Criminal Court and various border control practices. Humanitarian ideals are exposed as central to governmental discourses, disembedding penal power from the nation state, and often used to legitimize highly controversial border practices as matters of saving and protecting lives or promoting human rights.

Mary Bosworth, for example, observes that ‘human rights rhetoric and practices can justify the exercise of coercive state powers, even if their supporters wish it were otherwise’. In these contexts, humanitarianism is understood to function as a smokescreen and a technique for glossing over the ethically problematic and messy realities of border control. As Didier Fassin suggests: ‘Humanitarianism has this remarkable capacity: it fugaciously and illusorily bridges the contradictions of our world, and makes the intolerableness of its injustices somewhat bearable. Hence, its consensual force.’ In this post, we wish to contribute to the debate by drawing attention to the somewhat neglected aspects of humanitarianism in practice.

In our own work, we have analysed the deployment of humanitarian language and the discourse of human rights in Frontex operations. The precarious situation at Europe’s external borders is creating an irresolvable tension between the interests of European states to seal off their borders and the respect for fundamental human rights. The paradox of the centrality of ‘saving lives at sea’ in EU policy documents illuminates the disconnection between the performative aspects of humanitarianism and its operational use. The study revealed obvious contradictions and disjunctions between the objectives of state security and a lack of concern for migrants’ vulnerability, transferred into member states’ national risk assessments indicators.

However, we also uncovered the centrality of humanitarian sentiments in the narratives of police officers tasked with performing everyday border control. Indeed, the interviews with Frontex officers revealed a rather complex picture. While the humanitarian discourse clearly does a certain kind of performative ‘work’, it also seems to be to some extent internalized and appropriated by actors on the ground. Many officers talked with deeply felt seriousness and compassion about providing clothing and medicine for cold, wet and sick migrants. Some experienced the situation to be so serious that they drew analogies to the WW2. As one experienced officer described the situation in Greek detention centres: ‘It was like watching, it is terrible to say that, but it was like watching a war movie from 1943. Simply like that. Coming close to concentration camps.’ The controversial concentration camp analogy is, therefore, not only used by impassioned outside critics, but also by people within the system.

Although these stories of compassion and concern can be understood as a form of narrative self-legitimation work in a system which suffers from acute deficits in legitimacy (Bosworth; Ugelvik ), we would like to suggest that they also do a more complex work which may merit further analytical attention. In our study, compassion was often expressed as a result of having a more direct and closer contact with human suffering, which led the officers not only to sympathize with migrants, but also to see them in a more positive way and as more trustworthy. One officer described:

You get a slightly different understanding, because you get so much closer to the person, the credibility of the person standing before you is much stronger. I have registered asylum seekers [in Norway] until I’m exhausted (…) All of them are saying the same. (…) While here, you do have real people standing in front of you, telling a trustworthy story (Police Officer, de-briefer, PU6).

Here, compassion may still have performative and self-legitimating aspects (not least in relation to the interviewers), yet it is also an emotion which arises due to the physical closeness to suffering, resembling ‘the living presence’ of the Other described by Emmanuel Levinas. This presence is experienced and is different from, and not reducible to, words and ideas. As one officer said: ‘you see the hopelessness in it. I have in a sense understood it for several years, but now I can see the reality of what they are talking about’ (PU4).

We would like to suggest that such sentiments of understanding, compassion and a wish to help, which arise from direct, on the ground human encounters (although related) should be distinguished from the performative aspects of humanitarianism visible particularly in political discourse and policy documents. They demand a more nuanced understanding of the meaning of humanitarianism within border studies and an acknowledgement of the ambivalent feelings and moral discomfort inherent in  doing border work. This discomfort is dealt quite differently by individuals performing border control and is felt more acutely by some than others. Nevertheless, amplified by intense public critique, moral discomfort seems to be an inherent part of doing border control and can in some cases lead to outright resistance.

For example, our interviews with police officers performing border control in Norway demonstrated clear disagreement in how the police should use their newly acquired right to conduct border checks. Random territorial control of foreign citizens in the city center and targeted controls of families in detention centers were criticised for being immoral and inhumane. There was also a resentment of using deportation numbers as official performance targets for police work. The ‘us’ and ‘them’ divisions, which are frequently talked about in relation to migrants, were thus also created within the police force. As one officer from Oslo Police District described:

Well, it can be said that internally, within the police, there are different understandings of how to apply immigration law. It is just as well if this came out. Some look at this from an ethical perspective – that is us – while others are more concerned with performance targets and such. And the ethical side thinks that performance targets are a wrong way of doing the work, and admits that this is a sensitive field to work in, while it seems to me that the others, the other side, have not reflected on this well enough. I know that within the Police Immigration Unit there are disagreements as well.

Border studies have, so far, paid relatively scarce attention to such internal resistance and the moral and ethical discomfort of performing border control (see Bosworth for valuable exception). By seeing humanitarian rationalities primarily as a way of cementing and legitimizing the status quo, we may be operating with a rather one-dimensional understanding of humanitarianism and failing to differentiate between different aspects and actors. While one of the main strengths of studies of humanitarianism has been to connect broad policy issues to questions of morality and emotion, this slippage may be also one of its main drawbacks due to the obscuring of on the ground inter-personal dynamics. Moreover, the field may be slow in recognizing resistance, and potential for it, coming from within the system. Consequently, a question can be asked whether border studies may be poorly equipped to fully understand the dialectics of change arising from the moral discomfort of doing border work, as well as liable to reproduce its own ‘us’ and ‘them’ divisions.

This is the second post in a six-part series on ‘Penal Humanitarianism’, edited by Kjersti Lohne. The posts center around Mary Bosworth’s concept and Kjersti Lohne’s development of penal humanitarianism, and how penal power is justified and extended through the invocation of humanitarian reason. The blog posts were first posted on the “Border Criminologies” blog, and are re-posted here. This post is based on an article examining UK ‘managing migration’ initiatives, illustrating a securitization of humanitarian aid.

Penal Humanitarianism and Sovereign Power

In 2017, I published an article in the New Criminal Law Review on a series of UK programmes delivered overseas that were funded by the Returns and Reintegration Fund (RRF), under the rubric of ‘managing migration.’ These initiatives, which included prison building programs, mandatory prisoner transfer agreements, prison training programs, and resettlement assistance for deportees, I wrote, ‘demonstrate in quite concrete ways a series of interconnections between criminal justice and migration control that are both novel and, in their postcolonial location, familiar. In their ties to international development and foreign policy, they also illuminate how humanitarianism allows penal power to move beyond the nation state, raising important questions about our understanding of punishment and its application.’ In 2016 these programs were absorbed into the Conflict, Security and Stability Fund (CSSF), which, seeks ‘to deliver and support security, defence, peacekeeping, peace-building and stability activity.’

Whereas the RRF was made up of (and paid into by) the Home Office, the Department of International Development, the Ministry of Justice, and the Foreign & Commonwealth Office, the composition of the CSSF suggests a more muscular form of sovereign power. In additional to the four original departments, it includes Border Force, the Crown Prosecution Service, the Ministry of Defence, the National Crime Agency, and the Stabilisation Unit. Likewise, whereas the RRF was chaired by the Foreign Office, signaling a diplomatic approach, the CSSF’s strategic direction is set by the National Security Council (NSC) which includes secretaries of state and is chaired by the Prime Minister. It is further guided by the priorities set out in the 2015 Strategic Defence and Security Review and the UK aid Strategy. The CSSF is active in over 70 countries, which include Afghanistan, Algeria, Armenia, Azerbaijan, Bosnia-Herzegovina, Burma, Burundi, Colombia, Democratic Republic of the Congo, Egypt, Eritrea, Ethiopia, Georgia, Iraq, Jordan, Kenya, Kosovo, Kyrgyzstan, Lebanon, Libya, Macedonia, Mali, Morocco, Moldova, Nepal, Nigeria, Occupied Palestinian Territories, Pakistan , Peru, Serbia, Somalia, South Sudan, Sri Lanka, Sudan, Syria, Tunisia, Uzbekistan, Ukraine, Yemen and the UK Overseas Territories.  

As its composition and geographical reach suggests, the CSSF is clearly a far bigger endeavour than the RRF ever was. Such matters are also evident in its budget, which in 2018-19 is £1.28 billion, of which £300 million is used towards mandatory contributions to peacekeeping operations. The budget is split between Official Development Assistance (ODA) that counts towards the UK aid target of 0.7% of GNI, and funding that is not ODA eligible.

In my 2017 article, I examined some RRF investments in Jamaica and Nigeria in criminal justice institutions and training as well as in resettlement programs for deportees. The programs ranged from very modest programs such as a  course in cake baking for female young offenders in Jamaica, to a new prison wing in Kirikiri prison in Lagos both of which were funded in 2012. Three years later, in 2015, then prime minister David Cameron offered to fund a new prison in Kingston.

For the UK, these programs were part of an attempt to bring about new mandatory prisoner transfer agreements in Nigeria and Jamaica, through which the British government could rid themselves more speedily of serving foreign national offenders. In tying such matters together, and in delivering them often via organisations from the nongovernmental sector, these programs, I argued, acted as a form of ‘penal humanitarianism.’ This form of aid, moreover, I suggested, allowed the British government to reinstate sovereignty over its former colonial subjects, often within the very institutions that it had originally constructed. As such, penal humanitarianism illuminated the colonial roots of much migration and migration policy in the UK, and indeed in the global North more generally.

Under the CSSF, the connections between criminal justice and migration control have become more explicit, amplified by a greater emphasis on security.  Thus, for example, under the terms of the Conflict, Stability and Security Fund, the CSSF supports the ‘Organised immigration crime taskforce (Project INVIGOR)’ ‘to improve the capability of source and transit countries to tackle organised immigration crime (OIC); develop and enrich the intelligence picture of the threat of OIC; identify and investigate those involved; disrupt the use of enablers by organised criminals in facilitating OIC; and identify and recover illicit finances.’  Aimed at tackling groups who smuggling people across borders they cannot otherwise legally traverse, this programme seeks to:

• Reduce the profitability of organised immigration crime.
• Improve transit and source country’s ability to stop organised immigration crime.
• [obtain] More prosecutions and convictions of criminals involved in organised immigration crime in the UK and overseas.

So, too, the CSSF ‘Reintegration and Support for Returnees Programme’, ‘delivers against the objectives in the UK Government’s Illegal Migration Strategy.’ Specifically, it ‘aims to increase the capacity of countries to manage the return of migrants through provision of post-arrival and reintegration support and by prison institution building.’  

No serious attempt is made to explain why people use smugglers to cross borders, e.g. in response to the lack of legal routes. Instead, the CSSF summary states obliquely ‘Among the migrants’ reasons for attempting to reach the EU illegally is a belief that they can eventually find a better life there.’ Preventing this mobility, is for their own good, the policy document notes, because ‘organised crime groups… expose migrants to great risks due to the often-dangerous routes and methods that they use, and there are great personal costs to the individual migrants who can end up in modern slavery.’

So, too, the CSSF doesn’t explain why prison building is necessary to manage returning migrants. Instead it notes that its ‘overarching outputs’, namely the:

• Provision of post-arrival and longer-term reintegration support to returning migrants, [and]
• Prison reform, capacity building and training… should contribute to the following outcomes:
• A supportive return for migrants from the UK to their country of origin
• Improved capacity and facilities for countries of origin to manage returns

‘As a secondary benefit’ the document observes, ‘the programme meets UK Government objectives of returning a greater number of migrants with no legal basis to remain in the UK, to their country of origin.’

In these examples, as migration and crime have been elided, criminal justice investment appears to have become a humanitarian goal in its own right. The implications of these developments for our understanding of sovereignty and punishment requires careful empirical analysis; a difficult task given the inaccessibility of many of these programmes and the lack of transparency about them. As we have seen on this blog, humanitarianism is in flux. One aspect of this concerns how civil society organisations face an increasingly harsh political and legal landscape. While considerable attention has rightly been given to the treatment of these organisations, and their forms of resistance to the growing restrictions (and indeed criminalisation) they face, another aspect concerns the role of humanitarianism in a more muscular form of governance abroad. As programmes like those funded by CSSF, which seek to build capacity under the aegis of aid, increasingly are designed to confine and compel, urgent questions arise about the kind of state and sovereignty that is under construction.

As humanitarian aid becomes increasingly penal, justified by and focused on security, a number of things happen.  First, and most obviously, states like Britain obscure their own role in creating insecurity – by preventing legal and safe modes of entry, for example. Similarly, presenting their actions as a response to contemporary crises, the government also effectively disavows Britain’s longstanding, historical ties to those very parts of the world where it runs these programmes. Finally, in basing aid on criminal justice and migration control, penal humanitarianism ties sovereignty to exclusion. In so doing, it upholds a racialised view of British national identity.

This is the first post in a six-part series on ‘Penal Humanitarianism’, edited by Kjersti Lohne. The posts center around Mary Bosworth’s concept and Kjersti Lohne’s development of penal humanitarianism, and how penal power is justified and extended through the invocation of humanitarian reason. The blog posts were first posted on the “Border Criminologies” blog, and are re-posted here. The series start with an introduction to the concept ‘penal humanitarianism’, and an outline of the blog posts to follow.

Introducing the New Themed Series on Penal Humanitarianism

Humanitarianism is many things to many people. It is an ethos, an array of sentiments and moral principles, an imperative to intervene, and a way of ‘doing good’ by bettering the human condition through targeting suffering. It is also a form of governance. In Border Criminologies’ new themed series, we look closer at the intersections of humanitarian reason with penal governance, and particularly the transfer of penal power beyond the nation state.

The study of humanitarian sentiments in criminology has mainly focused on how these sensibilities have ‘humanized’ or ‘civilized’ punishment. As such, the notion of humanism in the study of crime, punishment, and justice is associated with human rights implementation in penal practices and with normative bulwark against penal populism; indeed, with a ‘softening’ of penal power.

This themed series takes a slightly different approach. While non-punitive forces have a major place in the humanitarian sensibility, we explore how humanitarianism is put to work on and for penal power. In doing so, we look at how muscular forms of power – expulsion, punishment, war – are justified and extended through the invocation of humanitarian reason.

In the following post, Mary Bosworth revisits themes from her 2017 article and addresses current developments on UK programmes delivered overseas to ‘manage migration’. She shows that through an expansion of these programmes, migration management and crime governance has not only elided, but ‘criminal justice investment appears to have become a humanitarian goal in its own right’. Similarly concerned with what happens at the border, Katja Franko and Helene O.I. Gundhus observed the paradox and contradictions between humanitarian ideals in the performative work of governmental discourses, and the lack of concern for migrants’ vulnerability in their article on Frontex operations.

However, in their blog post they caution against a one-dimensional understanding of humanitarianism as legitimizing policy and the status quo. It may cloud from view agency and resistance in practice, and, they argue, ‘the dialectics of change arising from the moral discomfort of doing border work’. The critical, difficult question lurking beneath their post asks what language is left if not that of the sanctity of the human, and of humanity.

Moving outside the European territorial border, Eva Magdalena Stambøl however corroborates the observation that penal power takes on a humanitarian rationale when it travels. Sharing with us some fascinating findings from her current PhD work on EU’s crime control in West Africa, and, more specifically, observations from her fieldwork in Niger, she addresses how the rationale behind the EU’s fight against ‘migrant smugglers’ in Niger is framed as a humanitarian obligation. In the process, however, the EU projects penal power beyond Europe and consolidates power in the ‘host’ state, in this case, Niger.

Moving beyond nation-state borders and into the ‘international’, ‘global’, and ‘cosmopolitan’, my own research demonstrates how the power to punish is particularly driven by humanitarian reason when punishment is delinked from its association with the national altogether. I delve into the field of international criminal justice and show how it is animated by a humanitarian impetus to ‘do something’ about the suffering of distant others, and how, in particular, the human rights movement have been central to the fight against impunity for international crimes. Through the articulation of moral outrage, humanitarian sensibilities have found their expression in a call for criminal punishment to end impunity for violence against distant others. However, building on an ethnographic study of international criminal justice, which is forthcoming in the Clarendon Studies in Criminology published by Oxford University Press, I demonstrate how penal power remains deeply embedded in structural relations of (global) power, and that it functions to expand and consolidate these global inequalities further. Removed from the checks and balances of democratic institutions, I suggest that penal policies may be more reliant on categorical representations of good and evil, civilization and barbarity, humanity and inhumanity, as such representational dichotomies seem particularly apt to delineate the boundaries of cosmopolitan society.

In the next post I co-wrote with Anette Bringedal Houge, we address the fight against sexual violence in conflict as penal humanitarianism par excellence, building on our study published in Law & Society Review. While attention towards conflict-related sexual violence is critically important, we take issue with the overwhelming dominance of criminal law solutions on academic, policy, and activist agendas, as the fight against conflict-related sexual violence has become the fight against impunity. We observe that the combination of a victim-oriented justification for international justice and graphic reproductions of the violence victims suffer, are central in the advocacy and policy fields responding to this particular type of violence. Indeed, we hold that it epitomizes how humanitarianism facilitates the expansion of penal power but take issue with what it means for how we address this type of violence.

In the final post of this series, Teresa Degenhardt offers a discomforting view on the dark side of virtue as she reflects on how penal power is reassembled outside the state and within the international, under the aegis of human rights, humanitarianism, and the Responsibility to Protect-doctrine. Through the case of Libya, she claims that the global north, through various international interventions, ‘established its jurisdiction over local events’. Through what she calls a ‘pedagogy of liberal institutions’, Degenhardt argues that ‘the global north shaped governance through sovereign structures at the local level while re-articulating sovereign power at the global level’, in an argument that, albeit on a different scale, parallels that of Stambøl.  

The posts in this themed series raise difficult questions about the nature of penal power, humanitarianism, and the state. Through these diverse examples, each post demonstrates that while the nation state continues to operate as an essential territorial site of punishment, the power to punish has become increasingly complex. This challenges the epistemological privilege of the nation state framework in the study of punishment.

However, while this thematic series focuses on how penal power travels through humanitarianism, we should, as Franko and Gundhus indicate, be careful of dismissing humanitarian sensibilities and logics as fraudulent rhetoric for a will to power. Indeed, we might – or perhaps should – proceed differently, given that in these times of pushback against international liberalism and human rights, and resurgent religion and nationalism, humanitarian reason is losing traction. Following an unmasking of humanitarianism as a logic of governance by both critical (leftist) scholars and rightwing populism alike, perhaps there is a need to revisit the potency of humanitarianism as normative bulwark against muscular power, and to carve out the boundaries of a humanitarian space of resistance, solidarity and dignity within a criminology of humanitarianism. Such a task can only be done through empirical and meticulous analysis of the uses and abuses of humanitarianism as an ethics of care.

by Jessica Schultz, Researcher, Chr. Michelsen Institute.

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

The surrogate role of refugee law: a principle or preoccupation?

As described in the previous post, the ‘internal protection alternative’ (IPA) is a limit on refugee status used to exclude claimants with access to adequate protection somewhere within their countries of origin. For example, an Afghan who fled Taliban recruitment in Helmand province may be returned to Kabul if conditions are sufficiently safe there. In most jurisdictions, return must also be reasonable for the person concerned. 

Although there is no mention of the IPA in the 1951 Refugee Convention or its 1967 Protocol, this implied limit spread in state practice during the mid-1980s as a response to several factors, including the prominence of non-state persecution as a basis for refugee claims. Today, the concept has firmly taken root in many jurisdictions despite continued debate about the exact criteria for IPA application. 

The IPA is also sometimes applied to justify decisions relating to the cessation of refugee status when some area of the country of origin is deemed secure enough to accommodate returning refugees. The migration of the IPA concept from the inclusion to the cessation analysis is not broadly endorsed (see UNHCR’s position and UK jurisprudence), but there is little doubt that states are increasingly interested in identifying some safe space – anywhere – to which refugees or refugee claimants may return within their countries of origin. 

My book analyzes various ways that states and scholars have framed the IPA limit in refugee law. This post examines a common element of these efforts, the observation that international protection is ‘surrogate’, or subsidiary, to national protection provided by countries to their own citizens. As Zimmermann and Mahler explain, ‘the evolution of the [IPA] concept draws heavily on the notion of surrogacy as a basic principle of refugee law, according to which international protection only comes into play when national protection within the country of origin is not available.’ If national protection exists somewhere, the back-up remedy of protection abroad is not (or no longer) needed. 

The surrogate role of refugee law: ‘thin’ versus ‘thick’ perspectives

As Goodwin-Gill and McAdam have written, the notion of ‘surrogacy’ usefully describes the overall role of refugee law. The 1951 Convention obliges state parties to provide replacement protection, when a person can demonstrate a well-founded fear of persecution within their country of ‘origin’ (citizenship or previous residence in the case of stateless persons) (Article 1A(2)). Beyond the inclusion provision, Article 1 also contains criteria for exclusion and cessation of refugee status. These too confirm the subsidiary, or surrogate, character of Convention protection. For example, Articles 1A(2) para 2, 1C(5), 1C(6), and 1E all indicate that when there is no well-founded fear of persecution within the country of origin or another country where the claimant has a national connection, refugee status need not be recognized. However, neither the text nor other sources (including the extensive drafting history, as discussed in the book) suggest a similar limit for persons for whom protection is available in only part of a country. 

It may be helpful, then, to distinguish between a ‘thin’ surrogacy perspective and the ‘thick’ one that is sometimes referred to as a ‘principle’ of refugee law.  According to a ‘thin’ surrogacy perspective, the lack of protection by the state of origin is relevant insofar as it negates the well-founded nature of a claimant’s fear. This absence of protection is a characteristic of a person who meets the Convention criteria; it is not a condition of refugee status. A fear of persecution is well-founded because the state has failed to ensure a minimum level of security to suppress a risk of serious harm. The IPA is not compelled by this interpretation of refugee law, although there may be cases in which the claimant’s unwillingness to avail him or herself of home state protection, despitea well-founded fear, cannot be reasonably justified. 

According to a ‘thick’ surrogacy perspective, meanwhile, state protection comes into play at two separate stages in the assessment of refugee status. First, serious harms committed by non-state actors qualify as persecution for a Convention reason when the state is unable or unwilling to protect the claimant. Second, the possibility of protection elsewhere in the country of origin must be considered to establish the necessity of protection abroad. In other words, protection has a systemic aspect (related to the state’s ability and willingness to protect from the original harm) as well as a territorial one (related to the possibility of protection elsewhere). 

There is nothing in the structure of the Convention to suggest that the presence of protection somewhere in a state’s territory can defeat a claim to refugee status. Article 1A(2) of the Refugee Convention defines a refugee as someone who ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country….’

The criteria for refugee status are satisfied, in other words, when the claimant 1) is outside his or her country of origin; 2) has a legitimate fear of persecution for a Convention ground; and 3) is unable or unwilling, owing to the well-founded fear, to avail him or herself of that country’s protection. The ‘thick surrogacy’ perspective shifts focus from the claimant’s ability or willingness to avail herself of home state protection to the ability or willingness of the state to provide it (within the country of origin).  

Despite the fact that a ‘thin’ surrogacy perspective aligns better with the text of the treaty, a ‘thick’ surrogacy perspective has gained traction in the scholarly discourse as well as in national jurisprudence. Below are some of the factors – by no means exhaustive – that help explain this development.

Factor 1: The influence of human rights law and principles on interpretation of the refugee concept

One explanation for the persistent power of ‘surrogacy’ as a justification for limiting the scope of refugee status relates to the misuse—in my view—of human rights law and principles for the purpose of interpreting the Refugee Convention. In terms of protection criteria, non-refoulement cases decided by human rights courts have influenced states’ interpretation of the 1951 Convention’s refugee concept. These do not frame the IPA as a limit on the scope of refugee status but rather as an extension of the basic risk analysis covering conditions on return. 

Procedural concepts from the human rights field have also infiltrated substantive interpretations of refugee law. Some sources refer to the duty to ‘exhaust domestic remedies’ in support of IPA practice. The ‘exhaustion of local remedies’ rule applies in human rights law to preserve the subsidiary nature of supranational decision-making bodies vis-à-vis a more democratic local organ. Despite its authoritative ring, it makes no sense in the context of refugee claims. First, the rule is usually concerned with systemic procedures (has the case been heard by the state’s highest court?) and not with the absence of protection by local state agents in certain areas. It also involves a backward-looking analysis (what has been done?) in contrast to the prospective inquiry required to assess the need for protection.  

Factor 2: The influence of other disciplines in the interpretation of the refugee concept

A second explanation for the prominence of the surrogacy discourse relates to broader developments in the field of refugee studies. In recent decades, important contributions to the refugee concept from social scientists and philosophers have filtered into legal debates. With some exceptions, these scholars (see here and here) argue that international protection should extend beyond the confines of the Geneva Convention to include persons forced to flee their countries of origin for reasons that may or may not have a Convention nexus.  

For example, in his influential article ‘Who is a Refugee?’ (1985), Shacknove posits the following definition: 

[R]efugees are, in essence, persons whose basic needs are unprotected by their country of origin, who have no remaining recourse other than to seek international restitution of their needs, and who are so situated that international assistance is possible. 

Despite the fact that Shacknove’s contribution to the field of forced migration was never meant as a restatement of refugee law, legal scholars like Hathawayand Storey have cited him in support of their view that the possibility of protection somewhere in the country of origin may, under certain conditions, defeat a claim for refugee status. Scholarly contributions, even those motivated by the desire to expand the refugee concept,  have reinforced the view that a deserving claimant is one whose compelling needs arise from the absence of adomestic alternative. 

Factor 3: The self-referential nature of norm development in refugee law

Without a treaty monitoring body to oversee the Convention, the situation arises in which certain ideas take on a life of their own through the interplay of jurisprudence, scholarship and policy. The concept of surrogacy has undoubtedly gained momentum through the inter-jurisdictional ‘dialogue’ in the field of refugee law and the influence of leading scholars. Its expression, however, has also been marred by circular reasoning. For example, the Canadian Supreme Court in Ward refers to the first edition (1991) of The Law of Refugee Status of Hathaway to explain the surrogate role of refugee law. Although the legal question was about whether non-state persecution was covered by the Convention’s refugee concept (and not about a potential IPA), this case appears regularly in IPA literature. Indeed, authors of the second edition of The Law of Refugee Status cite Ward as evidence of positions proposed in the previous book. 

Factor 4: Harmonization impulses versus the Refugee Convention as ‘lex specialis’

As most states operate with multiple regimes of international protection, the ‘surrogacy principle’ can be leveraged to justify the IPA as an unwritten exception to refugee status no matter what its treaty basis may be. For example, Article 8 of the EU Qualification Directive (2011) provides in general terms that internal protection may be considered ‘(a)s part of the assessment of the application for international protection’. By framing the IPA in this way, it is easier for states to justify a common IPA test in claims to Convention refugee status as well as those that relate to complementary forms of protection. As discussed elsewhere, the consequence has been that human rights courts like the ECHR are increasingly setting the standards for interpretation of the Refugee Convention – also for IPA practice – rather than the other way around.

Implications of a ‘thin’ surrogacy perspective for IPA practice

While the Refugee Convention’s purpose is to provide substitute protection, recognition as a refugee does not depend on the absence of a domestic alternative.  Nonetheless, an IPA limit may apply under certain conditions: when a claimant can relocate within the country of origin with minimal negative impact (from either an objective human rights perspective or a more subjective, humanitarian one). In these cases, extending international protection would erode the treaty’s effectiveness. In addition to individual factors, sending states must consider structural ones: whether return would reinforce policies or practices of ethnic cleansing, or stress already fragile areas. Both dimensions require a displacement-sensitive analysis. 

The scope for IPA practice when revoking refugee status is even narrower. As UNHCR has rightly maintained, where a risk of persecution persists in one region of a country, it is unlikely that the changed circumstances are ‘profound’ and ‘enduring’ as required under the cessation analysis. There are also situations in which circumstances have objectively changed but return is still unreasonable due to past experience of persecution.  

The IPA question goes to the heart of what it means to be a refugee. Is a well-founded fear of persecution within the country of origin enough to establish a refugee claim? While persecution – especially by non-state actors – may not always justify the claimant’s recourse to refuge abroad, the presumption that it could should not be diluted. The surrogacy concept in many jurisdictions has done just that, by shifting the focus of refugee status determination from the risk of persecution to the possibility of return in line with minimal human rights standards. This not only downplays the relevance of refugee experience, but it also renders the unique protection issues attached to internal displacement – a consequence of IPA practice –  largely invisible.

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

By: Jessica Schultz, Researcher and Senior Adviser, CMI

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

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

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

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

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

Roots of the reasonableness test in Norway

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

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

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

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

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

The Supreme Court’s Internal Flight judgment

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

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

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

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

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

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

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

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

Consequences for refugee claimants: the case of Afghan minors

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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