There must be something I can ‘help with’

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This text first appeared on CMI and is re-posted here. Salla Turunen is a PhD fellow at CMI with a research focus on humanitarian diplomacy and the United Nations.

Illustration by Pernille Jørgensen/CMI.

What is usually white, offers short-term solutions and is often misplaced? An international volunteer.

At the age of 20, I spent two months as a volunteer English teacher in a Buddhist monastery in Nepal. Like many white, Western, and particularly young women, I too wanted to participate in ‘doing global good’. I too saw images of ‘less privileged’, non-white women, children and men in the ‘Global South’, which in contrast to my home surroundings had an effect. I too felt that there must be something I can ‘help with’.

Recently, I read a blog post of We Aren’t Just Vehicles for your Guilt and Privilege: A View from Nepal by Rishi Bhandari, a Nepali who grew up surrounded by international volunteers. Bhandari’s key criticism surrounds volunteer travel in a post-colonial manner: White savior comes to the short-term ‘rescue’ by pursuing to save the illusion that the white savior has created in their mind of the ‘beneficiaries’ and their surroundings. For Bhandari, and for many post-colonial scholars, the perceived privilege comes along with imagined capability to ‘teach’, ‘help’ and ‘empower’. This is problematic, among others, due to lack of local contextual knowledge, Global North epistemologies and mere naivete.

Having done my graduate degree in gender studies and currently doing a PhD in the field of humanitarianism, I identified intellectually several of Bhandari’s arguments. Mary Mostafanezhad (2014) discusses how volunteer tourism commodifies empathy and stretches our imagination on how neoliberal capitalism articulates in global social relations. Michael Mascarenhas (2017) flags that colonial countries have a long-standing tradition to send, particularly young, people overseas in the guise of goodwill, democracy and charity, which translates into the spread of the Western cultural, political and economic hegemony. As for global politics, Johannes Paulmann (2013) argues that the overall humanitarian commitment from the Global North has safeguarded the moral positioning and superiority of the West and the commitment itself is a kind of postcolonial remedy. Yet, despite such intellectual approaches, the blog post was speaking to me on another level – as addressing the thoughts of the 20-year-old me.

Illustration by Pernille Jørgensen/CMI.

There are several different kinds of volunteering opportunities for those who are interested. Importantly, volunteering doesn’t equal to international volunteering. An example of this are national Greek volunteers in crisis-ridden Greece of the 21st century’s second decade, during which volunteering became a governmental, institutional and social reconfiguration of the new Greek and European Union citizen (Rozakou 2016). Despite having had volunteering opportunities inter alia among the elderly, youth and homeless in my home country, such considerations were swept away by the temptation to combine volunteering with travel.

Back in the beginning of this decade, I remember having had a discussion with another Finnish volunteer on her experiences which eventually created a yearning for myself to do something similar. Many volunteer experiences begin this way – from an intersectional perspective, you hear the side of the story from a person who bears resemblance to yourself and you are attracted to their insight. Alternatively, if the mountain will not come to Muhammad, then Muhammad must go to the mountain: After my volunteering, I received numerous inquiries particularly via Facebook from other interested people from the Global North asking about the NGO I ended up working with and my insight and experiences as a volunteer in Nepal.

After a quick Google search for key words “volunteer Nepal” today, I was given 26,700,000 results in 0.83 seconds.

When I began my search for my volunteer travel in 2010, the volunteering opportunities through online searches seemed endless, and they still appear to be so. After a quick Google search for key words “volunteer Nepal” today, I was given 26,700,000 results in 0.83 seconds. At the beginning of my twenties, when scrolling through the World Wide Web for these opportunities, I saw a program for an English teacher, which I felt back then to be an area in which I could ‘contribute’ – interestingly enough as a non-native English speaker.

As far as I would like to remember, my intentions for deciding to become a volunteer were ‘good’ from the position and perspective I then had. As many other young Global North volunteers, I was curious about the world and motivated by the opportunity to see another part of it while simultaneously interacting with people from different cultural, ethnic and religious backgrounds. Having recently finished my high school studies, I was in the search of directions and interests for my life and somehow the idea of travelling far in order to see near seemed appealing. And as far as I recall, also my social circles in Finland found my thoughts and determination for international volunteering a fascinating discussion topic, inevitably accumulating my social capital.

The program costs (including residence and food in the monastery) and the flights from Helsinki to Kathmandu and back were around 3000 euros altogether. A hefty investment for a high school graduate in a gap year as I was working in the restaurant field at the time, earning approximately 1300 euros per month. But this was a target I felt withdrawn to direct my savings to. Soon enough I was on the airplane heading to Kathmandu, then completing my volunteering and personal soul-searching after which heading home with an experience of a memorable summer. In Finland, I was interviewed by the local newspaper and radio on my experiences of volunteering and living in a Buddhist monastery, broadening my personal spectacular into a public one.

The consideration that I have made professional gains through such volunteering, is a painful one.

Without going into the details of my volunteer experience itself or the possible usefulness of my work (as these reflections would be only one-sided), I have been reflecting my decision to go in retro-perspective. Particularly, by employing critical thinking tools I have acquired during my years in academia. There I was, a young, well-meaning Western adventurer finding courses for my life at the expense and in the everyday of other people. Simultaneously, I had a sincere feeling of contributing to an enterprise more novel and greater than my individual self. With time and education in social sciences, I become more aware of the history and reproduction of global inequalities which had been embodied in my volunteer experience. My economic situation and overall global positioning as white, Western and travelled individual with English language capabilities (to name a few) enabled me to volunteer in a manner that the majority of the world’s population cannot. With that being said, I am also considering has my new privilege – academic education – somehow overridden my previous privileges in giving me new tools to criticize volunteer travel[1] today in a way which was out of my reach when I made the decision to become a volunteer.

Illustration by Pernille Jørgensen/CMI.

Overall, reflecting volunteer travel from the positionality I have today feels problematic as for me such experience is not an intangible intellectual discussion or societal phenomenon, but a part of my personal and professional past. Later in life, and particularly as a young professional otherwise lacking years of applicable work experiences, I have also stated my international volunteering in my curriculum vitaes, which, undoubtedly, have aided my professional opportunities in my international career. The consideration that I have made professional gains through such volunteering —which grounds and continues to exists on the basis of global inequalities— is a painful one. Expanding from personal agony into systematic structures, both Mary Mostafanezhad and Michael Mascarenhas (2014 & 2017) underline that young volunteers today are also increasingly cognizant of the pressure to gain international experiences to open doors for educational and professional opportunities in which volunteer travel plays a role. Also, prestigious universities and trainee programs have taken such an ‘exposure’ as a part of their programming in ‘qualifying’ young professionals to face the global challenges of today.

This phenomenon feeds also into the professionalization of the humanitarian field, of which Thomas G. Weiss and Michael Barnett (2011) write:

In other words, [humanitarian] volunteers began as amateurs. But increasingly the humanitarian enterprise frowned upon such naïfs and began demanding that staff have real expertise and rewarded them accordingly. A CEO or CFO of a major not-for-profit aid agency should not require less training or fewer skills or relevant work experience than a CEO or CFO of a for-profit Fortune 500 company. And if they are experts, they expect to be paid accordingly. (p. 116, emphasis added.)

Volunteer travel does not seem to have an end in sight, rather, it seems to accelerate in an increasing pace, and it has firm structures in its support and maintenance. Seemingly ever-increasing number of NGOs, INGOs and private sector social corporate responsibility programs provide opportunities in which volunteer travel can be deployed. As discussed, it is also now being more and more integrated and formalized in the spheres of education and professional careers. As scholars, activists and journalists argue, volunteer travel remains deeply problematic as individual, small-scale intervention (whether based on morality, empathy, guilt, curiosity, educational and professional development or something else) lack the means and muscles to redress macro level challenges such as poverty and weak governance. Silver bullet solutions, such as volunteer travel, and the framing of global inequalities in their format are perplexing and contested to begin with, posing the question whose interests these bullets actually serve.

Volunteers are motivated by various shades and impressions of other people’s imagined existence which are given illustrations inter alia in media and aid campaigns’ propaganda and images. Regrettably, volunteer travel continues to reinforce global inequalities by offering patch solutions at its best and without adequate means to address the underlying root causes of suffering. What at first glance seems to be a hearty interaction between a volunteer and a host-community member, can actually contribute to bolstering of inequalities. In addition to lacking the desired macro level impact, the micro, individual level effects take place.

For example, for Rishi Bhandari growing up in Nepal surrounded by international volunteers, it meant the following:

– I first encountered international volunteers when I was five, and I loved them! As a five-year-old kid, who doesn’t enjoy being tossed up into the air and given candies? But the irony was that they always only stayed for a short period of time, so the fun interactions were tainted by the knowledge that it was all going to be over soon. And when they would leave I would feel a keen sense of loss.

– When I reflect on it, I feel like the volunteers were treating us like we were from another planet. We were commodities to be used for a short period of time, not children with feelings and aspirations, or who are prone to attachment issues. There is a certain sense of exoticism associated with volunteering with kids overseas, that you can see on the posters that advertise these experiences.

The images seem to say: “Look at these smiling brown children! They are poor but happy!”

– Volunteers internalise these messages and treat children like toys, who are there to be touched and be tossed around. They didn’t treat us as complex, rounded human beings.

Nepalese culture is a valuable and living entity in its own right.

Rishi Bhandari

Volunteer travel will continue to exist. Volunteers may be young people in their gap year like I was, or they might be retired couples seeking to ‘give back’. International volunteering like other cross-cultural interactions, can break down artificial barriers between people and plant seeds to a deeper understanding of our shared humanity. The problem with volunteer travel is, however, that the movement in its current format is mostly a one-way street. It is the Finnish girl fresh-out of high school student who uses her gap year savings to go teach English to Buddhist monks in Nepal. It is not the young person from Bangladesh who comes to the United States to educate American children without any  professional quaifications equipped only with her or his high school diploma, young enthusiasm and life-experience.  

[1] The term volunteer travel is used in parallel with terms volunteer tourism and voluntourism, commonly referring to international volunteering for short periods of time, usually weeks or some months. Particularly volunteer tourism is often compared to mass tourism in the so-called developing countries, in which the former is seen pursuing to bring positive impacts to the host-communities and destinations whereas the latter has been criticized for the lack of such positive impacts (see for example Harng Luh Sin 2009).

References

Mascarenhas, M. (2017). New Humanitarianism and the Crisis of Charity: Good Intentions on the Road to Help. Indiana University Press.

Mostafanezhad, M. (2014). Volunteer Tourism. Routledge.

Paulmann, J. (2013). Conjunctures in the history of international humanitarian aid during the twentieth century. Humanity: An International Journal of Human Rights, Humanitarianism, and Development4(2), 215-238.

Rozakou, K. (2016). Crafting the volunteer: Voluntary associations and the reformation of sociality. Journal of Modern Greek Studies34(1), 79-102.

Sin, H. L. (2009). Volunteer tourism—“involve me and I will learn”?. Annals of Tourism Research36(3), 480-501.

Weiss, T. G., & Barnett, M. (2013). Humanitarianism Contested: Where Angels Fear to Tread. Routledge.

Governing global health emergencies: the role of criminalization

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This text first appeared on the International Health Policies blog and is re-posted here. Kristin Bergtora Sandvik (S.J.D Harvard Law School 2008) is a professor of legal sociology at the Faculty of Law, University of Oslo, Research Professor in Humanitarian Studies at PRIO, and former Director of NCHS. Her work focuses on refugee governance, technology, innovation and criminalization in emergencies. Her most recent publications deal with humanitarian wearables and digital dead body management in aid. The research undertaken for this blog post was supported by the project Humanitarianism, Borders and the Governance of Mobility.

This illustration, created at the Centers for Disease Control and Prevention (CDC), reveals ultrastructural morphology exhibited by coronaviruses. Note the spikes that adorn the outer surface of the virus, which impart the look of a corona surrounding the virion, when viewed electron microscopically. A novel coronavirus, named Severe Acute Respiratory Syndrome coronavirus 2 (SARS-CoV-2), was identified as the cause of an outbreak of respiratory illness first detected in Wuhan, China in 2019. The illness caused by this virus has been named coronavirus disease 2019 (COVID-19). Photo: CDC/ Alissa Eckert, MS

The point of departure for this blog is the apparent frequency of criminalization strategies in early government responses to the Corona virus. While much attention has been given to the securitization of global health responses – also in the case of Corona – less systematic focus has been given to the partial criminalization of infectious diseases as a strategy of global health governance.

As the scope of the Corona outbreak is broadening, the number of countries deploying criminalization measures is also rapidly increasing. China has introduced harsh regulations to deal with the Corona virus, including ‘medical-related crimes’ involving harassment and violence against medical personnel, refusal to submit to quarantine and obstructing dead body management. Singapore and Hong Kong have criminalized the breach of travel restrictions and misleading authorities or spreading false rumours.   Taiwan plans sentencing the violation of quarantines. Iran will flog or jail people who spread false rumours. A Russian prankster is facing jail-time for Corona ‘hooliganism’. In the US, prospective quarantine violators from the infamous cruise ship Diamond Princess were facing fines or jail time. Beyond governments’ need to be seen doing something in the face of public panic across the Global East and the Global North, how should we think about this propensity to reach for penal measures?

How we explain disease and whom we blame are highly symptomatic of who we are and how we organize our relations with others, in particular the practices and life forms of marginalized elements of society. This will also likely be the legacy of Corona. Moreover, current global health responses to infectious diseases remain bound up with both colonial-era and historical command-and control trajectories of response and needs to be understood in context.

In this blog, I map out three categories of criminalization.  My assumption is that the Corona response will likely involve all three in some form or other. I take the broad conceptualizations of criminalization in circulation in legal, policy and media discourse as the starting point: this includes criminal law sanctions  and administrative and disciplinary sanctions as well as popular perceptions of the uses of penal power and social ‘criminalization-talk’.  The idea is that criminalization can be understood as a strategic tool with multiple constitutive uses in the global health field.  

In the following, I outline three different things that criminalization ‘does’ in the global health field, which may serve as a resource for thinking about how criminalization will shape approaches to the Corona virus.

First, I am interested in the direct and indirect criminalization of health care delivery through the criminalization of individuals infected with or suspected of being infected with specific infectious diseases. The problem with this approach is that it risks aggravating humanitarian suffering because it is either premised on criminalizing the practices and attributes of groups that are already in a marginal position, or that with infection, patients immediately become  socially or economically ‘marginalized’ which allows for criminal interventions. This category of criminalization covers transmission, exposure, interaction with ‘vulnerable groups’ (such as children), failure to disclose or simply physical movement. It relies significantly on the mobilization of othering and of metaphors of fear.  The global health response may also be undermined through the de facto criminalization of individuals by way of the use of compulsory health powers such as surveillance, contact tracing, compulsory examination and treatment, regulation of public meeting places, quarantines and forced isolation of individuals.

These regimes might be so repressive as to have severe humanitarian impact on the populations concerned. Human suffering here does not emanate from the inability to offer health care but from the human rights violations arising from how fear and stigma fuel criminalization of ‘vulnerable/deviant/threat groups (such as drug users, those with precarious migration status, sex workers and the LGBTI population) and how criminalization in turn produces further deviance and marginalization.  A characteristic of early phases of epidemics is that certain groups are singled out as risky and characterized as dangerous, allowing for repressive public health interventions.

At the same time, fear of harassment, arrest and detention may deter people from using health services.  A ‘deviant’ social status combined with health status may lead to discrimination and ill-treatment by health care providers. Criminalization is linked to high levels of harassment and violence, reported by lesbian, gay, transgender people and sex workers around the world (see here and here). Notably, in the context of HIV/AIDS, criminalization, and quarantine and individual responsibility for disclosure have been considered as key tools to halt or limit transmission, despite innovations in treatment that radically transform the nature and lethality of HIV/AIDS. Globally, prosecutions for non‐disclosure, exposure or transmission of HIV frequently relate to sexual activity, biting, or spitting. At least 68 countries have laws that specifically criminalize HIV non‐disclosure, exposure, or transmission. Thirty‐three countries are known to have applied other criminal law provisions in similar cases.

For the fast-moving but relatively low-mortality Corona-virus, these lessons indicate that a marginalized social status can contribute to exacerbating transmission and constitute a barrier to adequate health care, potentially increasing mortality.

Secondly, criminalization and repressive public health measures and discriminatory barriers are also a complicating factor during emergencies caused by other factors. As seen in the context of Ebola, general violence as well as violence against health care workers undermines efforts to end outbreaks. Humanitarian emergencies confront public health systems with often overwhelming challenges. In the midst of this, criminalization of individuals who are infected or perceived as risky or dangerous further compromises the ability to address preexisting epidemics and hamper transmission, thus exacerbating the impact of the overall impact of the crisis. 

Third, in situations when the disease itself is the emergency, criminalization and the attendant practice of quarantines directly hampers efforts. Historically, quarantines have been used for a wide range of diseases including venereal disease, tuberculosis, scarlet fever, leprosy and cholera. Quarantines are co-constructed through the longstanding tradition of framing infectious disease through criminalization, whereby stigma, medicalization and incarceration have worked together to produce colonial bodies construed as racial and sexual threats to national security (see here and here). Quarantine was a widely employed tool against Ebola in Sierra Leone and Liberia.  As noted  by commentators, according to the logic underlying quarantines ‘subjects marked as abnormal, diseased, criminal, or illicit should be isolated for their own betterment and for the collective good’. While resistance becomes a proof of deviance and of the necessity of segregation, in the case of Ebola, quarantines may compel fearful communities to hide  suspected cases. In the contemporary context, with an international human rights framework on health suggesting that rights-based approaches to disease prevention and mitigation should be foregrounded,  problematic tradeoffs between criminalization-oriented public health measures and fundamental rights and liberties are likely to proliferate, as illustrated by the US government’s budding ‘war on Corona’.

This blog has provided an initial map of how criminalization may shape the Corona response. In sum, when criminalization is pegged directly onto suffering human bodies, criminalization hinders global health interventions in three ways. Criminalization might be so repressive that it has severe health-related impacts on the populations concerned. Criminalization also undermines and exacerbates challenges already faced by the public health infrastructure during an emergency. Finally, the repercussions of criminalization are most impactful in situations when the disease itself is the humanitarian crisis and where criminalization directly hampers efforts to contain and mitigate epidemics.

The end of protection? Cessation and the ‘return turn’ in refugee law

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This text first appeared on the blog of the Odysseus Academic Network and is re-posted here. Jessica Schultz is a Post-Doctoral researcher at the University of Bergen Faculty of Law, and a Researcher and Senior Adviser at the Chr. Michelsen Institute.

Photo: Marienna Pope-Weidemann via Flickr

With increasing enthusiasm, European states are reviving the Refugee Convention’s cessation provisions in service of their return-oriented refugee policies. This practice threatens the careful balance established by refugee law between the security of refugee status, on the one hand, and its impermanence on the other.

This post reviews the legal requirements for cessation of refugee status as well as how the focus on return distorts their application. Through the lens of Norwegian practice, it is possible to see how reliance on an internal protection alternative (IPA) and non-state actors of protection dilute the requirement of durable protection, especially for women and children.

As cessation practice becomes a more normalized part of refuge administration in Europe and elsewhere, it is essential that decision-makers uphold the distinction between protection from return or non-refoulement, and cessation of refugee status. As described below, cessation application requires authorities to consider factors beyond the risk of persecution or serious harm.

The context: the ‘return turn’ in refugee law

Containment measures like pushbacks, extraterritorial processing and safe third country regimes dominate public debates concerning refugees. In contrast, control efforts that reduce the length of stay in host countries have not received the same scrutiny. In recent years, states have decreased the durability of residence permits, enhanced scrutiny of refugees’ continued need for protection, and introduced new requirements for gaining permanent residence. While traditional temporary protection policies have operated in parallel to Refugee Convention protection, these newer measures affect those with Convention status as well.

Application of the cessation clauses contained in Articles 1C(5) and (6) of the Convention is an important example of how the Refugee Convention is being leveraged to advance states’ restrictive agendas.  These provisions permit termination of refugee status when the refugee …’ can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality’ or, in the case of a stateless person, the country of previous residence.

While cessation has always been a possibility, the high legal threshold and administrative costs are among the reasons why most states (Germany and Australia are exceptions), have refrained from an active cessation practice when it comes to individual cases. Instead, Convention refugees have typically received a permanent residence permit either immediately or at least predictably within a relatively brief period.

This commitment to provide a stable refugee status is clearly eroding. CanadaDenmark, and Sweden have all adopted policies involving the proactive review of a refugee’s continued need for protection. In Denmark, the threat of cessation even applies to resettled refugees, who already, in theory, have a durable solution. The draft EU Qualification Regulation would introduce mandatory reviews of refugee status to be conducted in connection with the renewal of residence permits for the first time for Convention refugees (after 3 years) and for the first two times for beneficiaries of subsidiary protection (i.e. after one year and again after 3 years).

As UNHCR rightly points out, there is a danger that such reviews could slide into a ‘cessation light analysis’ where the only issue assessed is whether the risk of persecution or serious harm still exists. This ‘mirror approach’ premises cessation on the absence of conditions giving rise to refugee status, and nothing more.

Cessation in refugee law: balancing two kinds of ‘refugee time’

So what exactly is the problem? Besides the fact that refugees face a risk of premature (unsafe) return and renewed displacement, the ‘mirror approach’ reflects a distorted reading of the Refugee Convention.

As Durieux has eloquently observed, the Convention carefully balances two dimensions of ‘refugee time’. The first relates to the basket of rights and benefits that accrue as the refugee’s attachment to the host state increases. (Articles 3-34). While the Convention stops short of requiring states to naturalize refugees, this outcome is explicitly encouraged in Article 34. The second relates to the end of refugee status. While the logical consequence of long-term stay is naturalization, Article 1(C) of the Convention clearly permits the termination of status before this takes place. The two dimensions of refugee time create an internal tension between opportunities to settle in a new community and the possibility of being forced to return to one’s country of origin.

In light of the Convention’s object and purpose to provide stable, if not permanent, status, cessation must be carefully and narrowly applied in situations where durable protection is clearly in place. From a policy perspective, the requirement of durability also ensures the alignment of cessation practice with the broader solution-oriented aims of refugee protection, and commitments under the Global Compact on Refugees.

That the cessation analysis grounded in Articles 1C (5) and (6) requires more than simply the absence of persecution is also clear from the text, which refers to ‘circumstances in connection with the grant of refugee status.’ This suggests that decision-makers must determine whether, in light of changes in the country of origin, the refugee’s continued refusal to accept protection from the country of origin is still justified. As the UK House of Lords explained, ‘double guarantee’ (no risk of persecution plus adequate protection) is necessary to displace the refugee’s ‘assurance of a secure future in the host country’.

To guard against premature application, UNHCR and many jurisdictions agree that changes must be ‘fundamental, stable and durable’ – or a variation on these criteria. While dramatic events like a democratic transition can occur quickly, many of today’s refugee-producing countries are beset by complex conflicts where the consolidation of peace is a halting, difficult process.

Importantly, changes that only affect part of a country may not be ‘fundamental’ enough to warrant cessation of status. Partial cessation is particularly problematic when it involves the internal relocation of returning refugees (because the country is generally unsafe). In these cases, not only is the change not fundamental, but it is unlikely to be ‘stable and durable’ for those who are internally displaced upon their ‘return’.

The ‘return turn’ in Norwegian refugee law post-2015

Like other countries in Europe, Norwegian authorities responded to the influx of refugee claims in 2015 with policies seeking to reinforce the temporary nature of refugee protection. These included amendments to the Immigration Act increasing the time period for applying for permanent residence, and the introduction of non-protection related requirements for permanent residence including proof of economic self-sufficiency, local knowledge and language skills. In addition, changes to Internal Protection Alternative (IPA) criteria led to an increased scope for granting a time-limited, non-renewable residence permit for unaccompanied minors.

In March 2016, the Ministry of Justice and Security issued an Instruction to the Immigration Directorate (Utlendingsdirektoratet, UDI) on cessation of refugee status and revocation of residence permits. The Instruction requires that immigration authorities apply the cessation provisions in domestic law when 1) the protection needs for larger groups of refugees have fallen away or 2) there are indications in an individual case that cessation might apply. In addition, UDI must consider cessation and eventual revocation when processing an application for permanent residence.

So far in Norway, Somali nationals have been most affected by cessation practice as well as revocation for other reasons, including fraud or administrative error. In 2017, the Grand Board of Immigration Appeals held that the cessation analysis required a ‘margin of security’, meaning that the grounds for refugee status disappeared and that changes appeared to be durable. When applying this standard to the facts in Mogadishu, a majority found that despite the state’s inability to enforce the rule of law, adequate protection could be secured from the strong clan system. Therefore, refugees from Mogadishu could be safely returned.  Somali refugees continue to be the group most affected by cessation practice and the revocation of residence permits more broadly.

The Norwegian Supreme Court: precarious protection by private actors in unstable places

In 2018, the Norwegian Supreme Court decided two cases involving the cessation of refugee status and subsequent revocation of a residence permit. Both plaintiffs were Afghans granted refugee status at least in part as single women without male protection. These judgments provide more insight into interpretive dilemmas attached to cessation criteria, and their consequences for women and children especially. Here I will only discuss the first judgment, from March 2018, which clarified – in part – the legal criteria for applying the cessation provisions in Norway’s Immigration Act.

In this case, the applicant (called “A” in the judgment) and her daughter Farida had come to Norway in 2011, after being separated from their husband and father in Greece. They received refugee status because their home area in Jaghuri district was insecure and, as a single woman without male protection, A lacked an ‘internal protection alternative’ (IPA) in a safer part of the country. When A’s husband arrived in Norway, his asylum application was denied and A received notice of cessation and revocation of her right to residence.

The question before the Supreme Court was: does cessation simply require that the family no longer fulfilled the criteria for refugee status, as the Norwegian state argued? Or, consistent with the ‘double guarantee’ advocated by UNHCR and others, did it also require a showing of adequate protection on the part of the Afghan government?

Since the Immigration Appeals Board (Utlendingsnemnda, UNE) decision was based on the fact that Jaghuri was no longer unsafe, the Court found it in error for not considering whether the change in security had stabilized to a certain degree. Importantly, the Court confirmed that the criteria for cessation are not a direct mirror of the criteria for refugee status. The imperative to assess the durability of change arises from a refugee’s legal position, which confers a certain degree of security. The Court also obliquely referred to policy concerns by noting that foreigners who have adjusted themselves to residence in Norway should not be exposed to a return that can easily lead to further displacement and a new claim to refugee status.

A victory for refugee law, then, right? Not necessarily, because the decision left too many questions unanswered. What does durable protection really require? Does it depend on a functioning state apparatus? If Jaghuri was found to be an oasis of safety surrounded by insecure areas would cessation criteria be met? Does it matter that the plaintiffs are originally from there? Does the fact that A and her husband are together constitute ‘protection’ for the purpose of cessation?

This was indeed the conclusion of the Norwegian Supreme Court in another revocation case from November 2018. Although the main question here was whether, post-cessation, revocation of a residence permit would violate the applicants’ right to private life under Article 8 ECHR, the Court endorsed the decision to cease refugee status. No gender or indeed displacement-sensitive assessment of whether protection by a male relative is adequate or durable for the long term was made.

And last but not least: what does a child-sensitive cessation practice look like? Children’s best interests must be a fundamental consideration in all decisions affecting them under the Convention on the Rights of the Child. But in the Farida case, the Supreme Court failed to address this fact in its assessment of cessation criteria.

The fates of Farida and her mother A are still unresolved. After being remanded to the Immigration Appeals Board, which based its new decision on the possibility of an internal protection alternative (IPA) in Kabul, the case was appealed to Oslo District Court. The District Court held, in a mystifying judgment, that while the requirement of a ‘fundamental and stable’ change applies to the claimants’ home area, it does not apply to other areas where they could be returned. In those places, the test is simply whether a well-founded fear of persecution or real risk of ill-treatment contrary to Article 3 ECHR is currently present. In other words, the Court identified a broader scope for cessation of refugee status if ‘return’ is not to the place of previous residence.

Applying this test to the facts, the District Court found that conditions in Kabul, while certainly unstable, did not meet the threshold of persecution or serious harm under Article 3 ECHR.  If the case reaches the Supreme Court again, the Court must clarify whether the IPA and cessation concepts can be reconciled at all, and if so under what conditions. Evidence of a male protector in an IPA is not sufficient to displace the stability Farida and her mother had received through refugee status.

Three concerns: actors of protection, spaces of protection, and the passage of time

There are three interrelated issues that threaten principled application of the cessation provisions.  The first is the willingness of decision-makers to endorse non-state actors of protection for the purpose of ceasing refugee status. Clans or the institution of marriage cannot replace the durable protection provided by state or state-like authorities. The second is the seeming acceptance of the IPA as part of the cessation analysis. It is especially worrying that as the lack of an IPA is increasingly perceived as a condition of refugee status then the existence of an IPA may justify its cessation, despite lip-service to the need for fundamental and durable change. ‘Return’ to internal displacement is profoundly at odds with the imperative to promote solutions and is especially problematic for female refugees made dependent on male relatives for mobility as well as protection.

And finally, the drawn-out nature of individual cessation practice, including the appeals process, increases tension between opportunities to settle in the country of refuge and the possibility of eventual return. This has serious consequences for the well-being of individual refugees and particularly children, who may have spent their formative years in a country before cessation kicks in. Even when the ‘best interests of the child’ are assessed, they may not succeed in outweighing the state’s immigration control interests.

The protection gaps that arise from the failure to correctly implement cessation criteria create a risk of unsafe and unsustainable refugee returns. The possibility of protection somewhere else does not, on its own, justify ending it in the country of refuge.

SuperCamp: Genealogies of Humanitarian Containment in the Middle East

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This blog post is based on a panel presentation at the seminar: “Assisting and protecting refugees in Europe and the Middle East – politics, law, and humanitarian practices” 19 September 2019 at PRIO in Oslo, Norway.

In 2015, more than one million migrants reached Europe in the largest movement of people since WWII. In order to seize control of “irregular migration,” the EU and Schengen countries instituted a new policy of regional containment from late March 2016 that targeted migrants arriving via major land and sea routes. Moreover, European transit countries, with Hungary in the lead, strengthened border control and built new fences to deter migrants. In the Mediterranean, humanitarian search and rescue missions intensified, as did EU border patrols and surveillance. The efforts to constrain, deflect and deter migrants are likely to continue and even intensify. Effectively, a policy of humanitarian containment by the EU and Schengen member states establishes the Middle East as a “catch basin” for refugees and migrants alike. To study the origins of this dynamic, the SuperCamp project combines refugee-, border- and archival studies for an inter-regional analysis of immobility and containment.

The Middle East as a zone of containment

The Middle East region is not only a spatial container and “catch basin” but also takes on features of what can be termed a SuperCamp,where refugees and migrants are not so much hosted as held hostage. The Middle East region now forms a regional zone of containment, a SuperCamp under humanitarian government. As pointed out by Are John Knudsen (Chr. Michelsen Institute) in his introduction to the panel, the refugees’ and migrants’ mobility are circumscribed locally (host states) and regionally through bilateral- (EU-Turkey deal) and multilateral treaties (Schengen). Refugees and migrants typically lack the rights that accrue to ordinary citizens, hence depend on host states and the UN-system (UNHCR, UNRWA) for their upkeep. There are now more than 500 camps in operation, they range from traditional refugee camps in the Middle East, to various types of internment camps and “hot spots” in Europe – examples include the large refugee camps Zaatari and Azraq in Jordan, transit camps in France like the Calais “jungle” (now closed), the infamous Moria internment camp in Lesvos, Greece’s largest camp, and Cara de Mineo in Sicily, until recently Italy’s major migrant “hot spot” center. Together, the treaties and camps underpin a regime of forced immobility designed to keep refugees and migrants inside the Middle East region and outside of continental Europe.

Tracing the historical roots of encampment

In order to trace international humanitarian responses to the refugees in the Middle East, we need to go back to the mid-19th century Middle East. The history of refugee resettlement in the late Ottoman and mandate-period Middle East, shows the longer lines of this development, as discussed by Benjamin Thomas White (University of Glasgow). He traced the shift towards practices of containment that occurred as a dynastic empire gave way to nation-states, with a particular focus on the Baquba refugee camp in post-Ottoman Iraq. One core research focus is how regional displacement in the late Ottoman and early-Mandate period lay the foundations of state policies and early “encampment”.

The policy of encampment gained pace during the period 1950-2000, following the camp policy that was instituted to respond to the Palestinian refugee crisis, but later extended to other crises and regions as well. For 70 years, in a highly politicized context, the United Nations Relief and Works Agency (UNRWA) has delivered temporary humanitarian assistance to Palestinian refugees, Kjersti Berg (Chr. Michelsen Institute) highlighted some dilemmas arising from UNRWAs long-term tenure. Established in 1949, UNRWAs mandate has been limited to the “humanitarian realms” and the agency is not empowered to provide any “durable solutions” to the refugees’ plight. In sheer numbers, the Palestinian refugee population is one of the largest, and their displacement one of the most protracted and characterized by a lack of access to rights. The refugees’ “Right of Return” to Palestine is enshrined in international law, but Israel rejects their return, as well as the quest for statehood. Due to political impasse, UNRWA therefore continues to provide quasi-state services and assistance to the refugees.

Governing migration today

The years from 2000 onwards have seen the policies of containment, which are so central to refugee camps, taken even further. The containment of migrants not only involves protracted “strandedness” and immobility, but is also about governing migration through disruption and keeping migrants constantly on the move, as Synnøve Bendixsen (University of Bergen) argued in her presentation. Based on ethnographic fieldwork along the so-called Balkan route, she explored the effects of containment by the EU and Schengen member states. The Balkan region has been reconfigured as a transit and waiting zone by the ongoing bio-political policies of forced immobility. In this process, the migrant journeys, their speed, strategies and imaginaries are constituted through a humanitarian architecture that keep refugees stranded both inside and outside the EU.

In a time where migration and refugee policies are entering both public and political forums of debate in full force, an analytical project that combines specialized research fields that seldom communicate – refugee, migration and humanitarian border studies and history – provides important insight for enhanced understanding of both regional and global forces of humanitarian containment.

This project is funded by the FRIPRO-programme of the Research Council of Norway, and it runs from 2019-2022.


The Cartagena Declaration at 35 and Refugee Protection in Latin America

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This text first appeared on E-International Relations and is re-posted here. More E-IR articles can be accessed by clicking this link. Prof Liliana Lyra Jubilut is a Professor of the Post-graduate Program in Law at Universidade Católica de Santos, Dr Marcia Vera Espinoza is a Lecturer i Human Geography at Queen Mary University of London, and Dr Gabriela Mezzanotti is an Associate Professor in International Human Rights Law at the University of South-Eastern Norway. The authors are currently working on the edited book ‘Latin America and Refugee Protection: regimes, logics, and challenge’.

Photo: Peg Hunter via Flickr

On November 22nd 2019 the Cartagena Declaration on Refugees (Cartagena Declaration) turns 35. It is a paramount document on refugees’ protection in Latin America, setting both normative standards and the regional tone for policies and actions in this area, thus, being a cornerstone of Refugee Law in the region. This is especially relevant as the Latin America is facing contrasting scenarios in terms of migration governance: an increasing politicization of migration and refugees’ management and anti-immigrant sentiments, as well as disrespect for human rights and refugee law, coexisting with a regional tradition of granting asylum and the ascertaining of a human-rights based (Grandi, 2017) and avant-gard protection for refugees (Freier and Acosta 2015; Jubilut and Lopes 2018).

Assessing the role of the Cartagena Declaration and its relevance on its 35th anniversary is also important in light of current regional forced displacements, as Latin America is witnessing massive flows of refugees and other migrants, as (i) in the case of Venezuela with 4,5 million displaced persons (mainly since 2016) and a prediction of reaching 6,5 million next year, also (ii) soaring numbers of refugees and asylum-seekers from the North of Central America (estimated at over 350,000 in the end of 2018), (iii) new displacements from Nicaragua due to a crisis that began in April 2018, (iv) the endurance of Haitian migration, and (v) the continued displacement of Colombians even after the peace agreements, to add to an estimated of 7 million displaced persons during the conflict. This increasing mobility in the region might be joined by new displacements resulting from the social and political strives in Chile and Bolivia.

In this context, it is relevant to present the Cartagena Declaration to a larger audience, celebrate its 35th anniversary, and assess whether the framework of protection created by it since 1984 can be a relevant tool in dealing with these competing scenarios in refugee protection in Latin America, as a way to appraise its lasting and current impacts.

The Cartagena Declaration and Its Regime

Panorama

The Cartagena Declaration was created in an academic colloquium (Colloquium on the International Protection of Refugees in Central America, Mexico, and Panama) held in Colombia in 1984, in light of the refugee situation in Central America[1], and adopted a regional approach to refugee protection.

The Cartagena Declaration set the basis for the evolution of a specific Latin-American framework of refugees’ protection, developing from the region’s long-established tradition of asylum (Fischel De Andrade, 2014, Acnur n/d). It dialogues, however, with larger frameworks (Jubilut and Lopes, 2018), such as the international refugee regime (a relation expressed both in the Document’s explicit mentions to the 1951 Refugee Convention and its 1967 Protocol[2] and in its support by the United Nations High Commissioner from the beginning[3], Human Rights and other regional schemes such as the Organization of American States (OAS) – which embraced the Declaration[4] and encompasses the United States, Mexico, and the Caribbean States alongside Latin America countries. Due to its normative developments, has been listed together with the 1969 OUA Convention Governing the Specific Aspects of Refugee Problems in Africa as examples of successful developments in regional refugee protection.

The Cartagena Declaration, initially adopted by 10 States as a soft law instrument, is divided into 3 content parts: the first one with a preamble aspect contextualizing the document and expressing its fundaments and principles; the second one linking the document to the Contadora Process for Peace and reproducing its normative result[5], and the third part with the substantive contributions of the Document, presented as conclusions.

There are 17 conclusions in the Cartagena Declaration encompassing suggestions specifically tailored to the Central America refugee situation, provisions on the betterment of refugee protection in the States of the region, and contributions to refugee protection at large in Latin America. In the latter, two aspects should be highlighted.

The first is the already mentioned dialogue between refugee protection and human rights. This is a prevalent topic in the Cartagena Declaration, and should be praised both as a pioneering effort in States’ practice in this area (in the early 1980s) and as a guideline aiming at guaranteeing integral protection for refugees, i.e. not only the rights they are entitled to due to their migratory status but also all their human rights (Jubilut, Apolinário, 2008). Furthermore, this connection opens up the possibility of refugee protection also benefiting from other institutional arrangements linked to human rights (such as the InterAmerican System of Human Rights from the OAS), and, therefore, being enlarged.

The second aspect regarding refugee protection at large in Latin America is the creation of a regional definition of refugees that goes beyond the international criteria set up by the 1951 Refugee Convention and its 1967 Protocol. This stems from the 3rd Conclusion of the Cartagena Declaration, that reads:

the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order. (highlights added)

These criteria look into the objective situation of the country of origin of the refugee as the main cause for refugee status, not requiring the existence of individual persecution (Jubilut and Carneiro, 2011; 67, Reed-Hurtado, 2013) and closely links refugee status to International Human Rights and International Humanitarian Law (Ibid; Burson and Cantor 2016).

Among the several criteria spelled out in the 3rd Conclusion, the one mentioning massive violation of human rights (or gross and generalized violation of human rights as more commonly used in the region[6]) is not only the more encompassing one[7], but also is perceived as the main conceptual contribution of the Cartagena Declaration. This is so due to the fact that albeit not applied in its entire possible width  it allows for recognizing refugee status “when internationally recognized rights are subject to widespread or large scale violations—situations of ‘gross and systematic denial of civil, political, economic and social, and cultural rights” (Reed-Hurtado, 2013: 14), encompassing, for instance, situations such as dictatorships, internal strives, humanitarian crisis, and war. In this sense, and from a normative standpoint, it is a relevant increase in protection in the region.

Legacy and Impacts

The creation of a regional concept of refugee, and the inclusion of  the possibility of refugee status due to gross and generalized violation of human rights in it, are the first two impacts of the Cartagena Declaration that need to be emphasized. They not only amplify protection in the region but also establish a Latin-American grammar in refugee protection, combining the international criteria for refugee status determination with a tailored regional definition. The latter also reinforces the dialogue between Refugee Law and Human Rights, present from the start in the regional regime as it is incorporated in the region’s refugee definition from 1984. The Cartagena Declaration concept of refugee and its peculiarities can be said to be a first pillar in the creation of a regional refugee regime in Latin America.

If one accepts regimes as the existence of rules, principles, and decision-making procedures (Krasner,1982) this perception is corroborated by the fact that the Cartagena Declaration set up a revision process, with meetings every 10 years to evaluate the region’s needs and developments in refugee protection and to adopt follow-up documents and plans of actions.

The first of these meetings was held in 1994, and resulted in the San Jose Declaration, which has as its main specific contribution the fact that, regionalizing the international momentum of the topic[8] and perceiving the region’s needs in the issue, strongly dealt with the protection of Internally Displaced Persons as a relevant Latin-America theme in refugee protection[9]. The second follow-up meeting took place in 2004 and resulted in the adoption of the Mexico Declaration and Plan of Action,[10] which embraced a responsibility-sharing optic instead of the more traditional burden-sharing approach to refugee protection, and was divided in two main components: one focusing on protection and the other on durable solutions (Jubilut and Carneiro 2011). In the latter, three regional initiatives were adopted within the solidarity[11] logic that guides all the document: 1) borders of solidarity, focusing on protection at frontiers as well as on actions for local host populations on border towns; 2) cities of solidarities, with a focus on integration in urban settings, the main scenario in Latin America; and 3) resettlement in solidarity, creating new resettlement schemes in the region, for both intra and extra regional refugees and having as its main selection criterion the need for protection (Vera Espinoza 2018a, 2018b; Jubilut and Zamur 2018).  The most recent of the meetings happened in 2014 and led to the adoption of the Brazil Declaration and Plan of Action, which reinforces the initiatives previously adopted and the existence of a regional regime of refugee protection in Latin America (Jubilut and Madureira 2014), and continues the Cartagena Declaration legacy.

If the regional refuge definition is the first pillar of the Cartagena Declaration regime of refugee protection, the revisional process and its products are the second. They are also good thermometers of regional adherence to the regime, pointing out a continuous increase in commitments, as one can see that while the Cartagena Declaration was initially adopted by 10 countries and is currently incorporated nationally by 16, the San Jose Declaration was signed by 17 States, the Mexico Declaration and Plan of Action by 20, and the Brazil Declaration and Plan of Action by 31 countries. Furthermore, they showcase an evolution from only declarations to declarations and plans of actions which represents concerns about both normative propositions and actual implementation and policies.

The third pillar of the regional refugee regime can be said to be the aforementioned connection with human rights, which has led the region to be praised internationally (Grandi, 2017). This is relevant as it also sheds light into a fourth pillar and key aspect of refugee protection in Latin America, as it is the coexistence of different systems and regimes (Jubilut and Lopes, 2018: 132). In relation to the former, one can point out (i) the dual nature of asylum in the region, implemented by political asylum and refugee status, (ii) the dialogues among Refugee Law and International Human Rights and International Humanitarian Law, and (iii) the coexistence of the regional definition with the international refugee definition (Ibid).

Regarding the coexistence of regimes of refugee protection in Latin America[12], it is relevant to first recall the previously mentioned relationship between the regime created by the Cartagena Declaration with the InterAmerican Human Rights System, which, through the InterAmerican Court of Human Rights and the InterAmerican Commission on Human Rights, can be said to also have created a regional protection regime for refugees and other migrants within its human rights framework.

A second regime coexistence would take place in relation to the Cartagena Declaration regime and national regimes of refugee protection. Given that, as mentioned, 16 countries have already incorporated the Cartagena Declaration into their national laws, it could be argued that this regime co-existence has not only expanded protection but also transformed, at least in the national level, a commitment transforming a soft law instrument into hard law at least nationally.

If, on the one hand, one can thus see the Cartagena Declaration Regime as having four main pillars – regional definition, revision processes, connection to human rights and the dialogue with other regimes and systems -, on the other, it is also possible to identify three elements that complement this regime, in what is called the “spirit of Cartagena”, understood in relation to: 1) a human rights approach to refugee protection, which is simultaneously a pillar of the Cartagena Declaration regime and a characteristic of the “spirit of Cartagena”, 2) an expanded humanitarian space and 3) a constant effort to assess the region’s needs and challenges in refugee protection.

The “spirit of Cartagena” can be said to be in place in the debates and adoption of the Cartagena Declaration but also in the development of the regime derived from it, and even influencing other actions regarding the protection of refugees and other migrants (such as humanitarian visas and other alternative pathways for legal stays for instance (Jubilut 2017)) in Latin America. That is to say, the ‘spirit of Cartagena’ and the Cartagena Declaration regime’s pillars can be considered to be lasting impacts and legacies of the Cartagena Declaration in the protection of refugees in Latin America.

Current Challenges in Refugee Protection in Latin America

However, and even though the regional setting showcases the existence of comprehensive regimes of refugee protection, and a regional optic of ascertaining human rights and the implementation of asylum; recent events have – as noted above – created a scenario of contrasting and competing logics, i.e. one the one hand, the Cartagena Declaration and its regime, alongside other structures of protection in the region, and, on the other, the adoption of policies, rhetorics and actions against refugees and other migrants’ protection.

This can start to be explained by the fact that Latin America remains a region that, at the same time, produces and receives refugees (UNHCR, 2019: 68 and 74), and recently has been experiencing a combination of these realities: with a record number of intra-regional refuges, originating mainly from Venezuela and the North of Central America, but also encompassing forced migration from other places (Jubilut and Jarochinski 2018; Jubilut 2016).

The increase in numbers has occurred alongside the rise of populist governments, as well as right-wing local and/or national governments, which either did not impress great significance on refugee protection or adopted a “hard line” in migration governance. The combination of these factors has led to human rights violations, restrictive migratory laws, and violations of Refugee Law (both in its international and regional standards).

Examples of that have been the preferred avenue by States to not apply the regional definition to intra-regional refugees but rather create complementary protection pathways (Jubilut and Fernandes 2018), which could be seen as an implementation of the “spirit of Cartagena” if they were being applied only to migrants other than refugees, and not as a way to diminish protection. Moreover, and in a opposite policy, some countries have not created any strategy to deal with the increased flows, leaving all migrants to apply for refugee status, thus overburdening existing systems and regimes. Furthermore, specific situations have amplified the vulnerability of some migrants, such as in the cases of statelessness persons’ protection (from Haiti in the Dominican Republic), undocumented children migration (from the North of Central America and Venezuela) and migration of indigenous persons (from Venezuela).

One can see then that competing and contrasting logics are in play in Latin America, at the time of the 35th anniversary of the Cartagena Declaration. It is relevant to point out this scenario so that setbacks are not allowed, and the regime created by the document is not jeopardized. Moreover, recalling the Cartagena Declaration and the regime it has created, as well as how it is a framework of protection that dialogues with others in the region, helps to highlight that there is a grammar of protection in Latin America, with strong normative structures, and if refugees and other migrants are not being adequately protected it is more a result of lack of political will and of political choices than a lack of regimes and traditions of humanitarian action, granting of asylum and refugee protection.

Conclusion

As argued here, the 1984 Cartagena Declaration and its legacy for the protection of refugees in Latin America, which spams from the document itself to the creation of a regional regime as well as impregnates the region with the “spirit of Cartagena”, is more relevant than ever. The lasting impacts of the Document as well as the longevity of a regional commitment to refugee protection should be celebrated, especially in the occasion of its 35th anniversary. However, practical challenges remain, particularly in light of new forced displacement flows in the region that bring to light contrasting scenarios for refugee protection in Latin America.

On the one hand, the most positive characteristics of the region that create Latin America’s grammar of refugee protection, are: the long-lasting tradition of asylum; a human rights approach (that can lead to integral protection); the spirit of Cartagena; and the coexistence of the Cartagena Declaration Regime, the InterAmerican Human Rights system for the protection of refugees and other (forced) migrants, and national regimes that have adopted expanded refugee status definition as well as humanitarian policies and complementary protection alternatives. On the other, however, anti-migrants rhetorics from around the world also reverberate in Latin America, alongside discriminatory and xenophobic behavior, as well as, the adoption of practices and rules that go against international commitments, so as to escape the reach of International Refugee Law (as with non-refoulement and adequate Refugee Status Determination procedures) or International Human Rights standards (in the protection of children and against torture and detention, for instance).

It seems, thus, that even though the instruments (normative and otherwise) are in place, the main challenges arise from the lack of political will to implement them. That is why highlighting the relevance of the Cartagena Declaration by celebrating its 35th anniversary, can be an important reminder to the region of its commitments to refugee protection, asylum and human rights.

Notes

[1] See Cartagena Declaration 2ndh preambular paragraph.

[2] See, for instance, Cartagena Declaration 4th and 8th preambular paragraphs, as well as its second, third and eighth conclusions.

[3] UNHCR was represented in the Colloquium that adopted the Declaration and is mentioned throughout the document.

[4] By Resolution AG/RES. 774 (XV-O/8S) of 1985, which highlights the importance of the Declaration and recommends that all Member States apply it to refugees in their territory (paragraph 3) . Available at: <http://scm.oas.org/pdfs/agres/ag03799S01.PDF>.

[5] See Cartagena Declaration 8th preambular paragraph.

[6] For the different wordings adopted by States in incorporating this aspect of the Cartagena Declaration, see: Piovesan and Jubilut (2011)

[7] For even broader possibilities of application of this criterion see Weerasinghe (2018).

[8] For instance, with the 1998 Guiding Principles on Internal Displacement.

[9] The topic was also present in the Cartagena Declaration (conclusion 9).

[10] All of the documents from the Cartagena Declaration regime, as well as the practices of the InterAmerican Human Rights system, national practices in the region, regional schemes for the protection of migrants that can also benefit refugees, as well as the main current displacement flows from the region, are the objects of study of upcoming volume edited by Jubilut, Vera Espinoza and Mezzanotti (forthcoming).

[11] For more on solidarity as a guiding principle of the Cartagena Declaration regime and a legacy from it (as well as the flexibility of sovereignty impose by the Document) see: Jubilut, Apolinário and Jarochinski (2014).

[12] For more on this see the upcoming volume edited by Jubilut, Vera Espinoza and Mezzanotti (forthcoming).

References

Alto Comissariado das Nações Unidas para Refugiados (ACNUR). Protección de Refugiados en América Latina: Buenas Prácticas Legislativas, n/d.

Burson, Bruce; Cantor, David J. (Eds.). Human Rights and the Refugee Definition – Comparative Legal Practice and Theory, 2016.

Cantor, David. J.; Barichello, Stefania E. The inter-American human rights system: A new model for integrating refugee and complementary protection. The International Journal of Human Rights, n. 17, 2013: 689 – 706.

Freier, Luisa Feline; Acosta, Diego. South America’s moves to liberalize irregular migration are in stark contrast to the punitive and fatal policies of the U.S. and EuropeThe LSE US Centre´s daily blog on America Politics and Policies, 2015. https://blogs.lse.ac.uk/usappblog/2015/06/17/south-americas-moves-to-liberalize-irregular-migration-are-in-stark-contrast-to-the-punitive-and-fatal-policies-of-the-u-s-and-europe/

Fischel de Andrade, José Henrique. Forced Migration in South America. In: Fiddian-Qasmiyeh, E. et al. (Eds.). The Oxford Handbook of Refugee and Forced Migration Studies, 2014: 651-663.

Grandi, Filippo. Foreword: Regional solidarity and commitment to protection in Latin America and the Caribbean. Forced Migration Review, 56, 2017: 4-5.

Jarochinski Silva, João Carlos; Jubilut, Liliana L. Venezuelans in Brazil: Challenges of Protection. E-International Relations, 2018. e-ir.info/2018/07/12/venezuelans-in-brazil-challenges-of-protection/

Jubilut, Liliana L. Humanitarian Alternative Pathways for Protection for Forced Migrants in Latin America, In: McAuliffe, M. and M. Klein Solomon (Conveners). Migration Research Leaders’ Syndicate: Ideas to Inform International Cooperation on Safe, Orderly and Regular Migration, 2017: 117-122. https://publications.iom.int/books/humanitarian-alternative-pathways-protection-forced-migrants-latin-america.

Jubilut, Liliana L. Latin America and Refugees: a panoramic view. Völkerrechtsblog, 2016. https://voelkerrechtsblog.org/latin-america-and-refugees-a-panoramic-view/

Jubilut, Liliana L.; Apolinário, Silvia M. O. S.  A população refugiada no Brasil: em busca da proteção integral. Universitas- Relações Internacionais, 6 (2), 2008: 9-38.

Jubilut, Liliana L; Apolinário, Silvia M. O. S; Jarochinski Silva, João Carlos. In: The transformative potential of refuge: the deepening of solidarity and of limits to sovereignty as a legacy of the Cartagena Declaration and its review process In: Jubilut, Liliana Lyra. Refugee Protection in Brazil and Latin America – Selected Essays, 2018: 159-178).

Jubilut, Liliana L; Carneiro, Wellington P. Resettlement in Solidarity: a regional new approach towards a more humane durable solution. Refugee Survey Quarterly, 3, 2011: 63-86.

Jubilut, Liliana L.; Fernandes, Ananda P. A atual proteção aos deslocados forçados da Venezuela pelos países da América Latina. In: Baeninger, Rosana; Jarochinski Silva, João Carlos (Ed.). Migrações Venezuelanas, 2018: 164-177. https://www.nepo.unicamp.br/publicacoes/livros/mig_venezuelanas/migracoes_venezuelanas.pdf.

Jubilut, Liliana L.; Lopes, Rachel de O. Forced Migration and Latin America: peculiarities of a peculiar region in refugee protection. Archiv des Völkerrechts, v. 56 (2), 2018: 131 – 154. https://doi.org/10.1628/avr-2018-0008

Jubilut, Liliana L.; Vera Espinoza, Marcia; Mezzanotti, Gabriela (Eds). Latin America and Refugee Protection: regimes, logics and challenge, forthcoming.

Jubilut, Liliana L.; Zamur, Andrea C. G. Brazil’s Refugee Resettlement: Power, Humanitarianism and Regional Leadership. In: Garnier, Adèle; Jubilut, Liliana L.; Sandvik, Kristin B. (Eds.). Refugee Resettlement: Power, Politics and Humanitarian Governance, 2018: 70-91.

Piovesan, Flávia; Jubilut, Liliana L.  The 1951 Convention and the Americas: Regional Developments. In: Zimmermann, Andreas (Org.). Commentary on the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, 2011: 205-224.

Reed- Hurtado, M. The Cartagena Declaration on Refugees and the Protection of People Fleeing Armed Conflict and Other Situations of Violence in Latin America. UNHCR Legal and Protection Policy Research Series, 2013. https://www.unhcr.org/protection/globalconsult/51c800fe9/32-cartagena-declaration-refugees-protection-people-fleeing-armed-conflict.html

UNHCR. Global Trends – Forced Displacement in 2018.  Geneva: UNHCR, 2019. https://www.unhcr.org/statistics/unhcrstats/5d08d7ee7/unhcr-global-trends-2018.html

Vera Espinoza, M. The Limits and Opportunities of Regional Solidarity: Exploring Refugee Resettlement in Brazil and Chile. Global Policy, 9 (1), 2018a: 85-94. DOI:10.1111/1758-5899.12534

Vera Espinoza, M. The Politics of Resettlement: Expectations and Unfulfilled Promises in Brazil and Chile. In: Garnier, Adèle; Jubilut, Liliana L.; Sandvik, Kristin B. (Eds.). Refugee Resettlement: Power, Politics and Humanitarian Governance, 2018b: 223-243.

Weerasinghe, Sanjula. In Harm’s Way International protection in the context of nexus dynamics between conflict or violence and disaster or climate change, UNHCR Legal and Protection Policy Research Series, 2018. https://www.unhcr.org/5c1ba88d4.pdf

Who are the Civilians in South Sudan?

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This text first appeared on Security Dialogue and is re-posted here. Read the full article this blog post is based on here. The article is an outcome of a larger project supported by the Research Council of Norway: “Protection of Civilians: From Principle to Practice“. Nicki Kindersley and Øystein Rolandsen are featured in the Security Dialogue Podcast Series where they speak about their article, and the podcast can be accessed here.

Displaced children residing at a United Nations transit site take time to play. South Sudan’s conflict has affected the lives of many of these children, who are the future of the country. Photo: United Nations/Isaac Billy

Why are local communities so often targeted in South Sudan’s civil wars? How do their attackers justify violence against people defined as civilians in international law? In our article in the current issue of Security Dialogue, we answer these questions by placing recent brutalities within a longer history of conflict logics and practices in South Sudan’s modern history of violent governance. These evolving local norms inform how armed actors engage with residents in today’s conflicts.

State governance has always been violent towards South Sudan’s populations. Since slave raiders and traders shaped the first colonial incursions in the mid-1800s, ordinary people have been strategic assets to be managed and exploited. As such populations are not just legitimate targets in conflicts, but key resources to capture and control. State power was extended over Sudan’s peripheries in the 1900-1920s through mass forced displacement and depopulation of strategic areas (such as Kafia Kingi); through collective ‘punishment’ of defensive populations (for example, the aerial bombardment of Nuer communities); and violent raiding by proxy fighters from other communities, turning residents against each other. Sudan’s civil wars in the South from the 1960s continued these practices. Communities were targeted collectively based on ethnicity and imputed loyalty, displaced, and forced into camps for ‘protection’ and control, by both government and rebel forces.

Today’s UN Protection of Civilians camps, the first UN bases in the world to be turned into protection camps for local populations, are a part of this long history of violent governance. These armed groups continue to see the population in contested areas as part of the war, where everyone is (potentially) part of the collective enemy, and where controlling desperate poor populations is also a convenient way of gaining access to external aid and cheap labour. It thus makes more sense that, since 2013, armed groups have targeted populations in forced displacements, collective ‘punishments’, violent raids and armed control of refugee camps.

The article also shows how this distinction between armed combatants and those defined as civilians in international law is further blurred by violent governance tactics since the colonial period. Successive governments have actively sought to incorporate the population into their militarised security apparatus. During colonial rule, men and women were pressed into service as enslaved or otherwise dependent servants, soldiers, and workers in fortified and militarised garrison towns. After Sudan’s independence in 1956, the government encouraged or coerced residents into acting as spies, ‘national guards’, informers and ‘local protection’ forces. This militarised security state continues, and continues to blur the South Sudanese definition of civilian.

This analysis does not excuse the massive and systematic violence against the general population of South Sudan. But without due consideration of these deeply engraved historical systems and logics of violent governance, today’s brutal conflicts become incomprehensible. Any attempt to implement protection measures for populations affected by war needs to be informed by a proper understanding of these local logics of conflict. In this logic, the UN in South Sudan is already another military-political authority managing local populations and controlling their movements. With the NGOs servicing them and the UN peacekeepers guarding them, these PoC camps are a strategic political asset to be managed and exploited.  

Humanitarian governance and localization: What kind of world is being imagined and produced?

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This text first appeared on the TheGlobal and is re-posted here. The blog post draws on the introduction to a 2019 special issue on humanitarian governance by Dennis Dijkzeul and Kristin Bergtora Sandvik, ‘A world in turmoil: governing risk, establishing order in humanitarian crises’ published by Disasters.

Photo: TheGlobal

Synopsis:
While localization is high on the agenda for humanitarian actors, at present, humanitarian governance does not support the localization agenda. To understand better why, we explore three issues underpinning humanitarian governance: the problem construction, consolidation and growth of the sector, and the sorting of civilians. We conclude that the localization agenda is important, but for it to succeed a fundamental change of the humanitarian system is needed.

Introduction

Humanitarian crises conjure up a specific world of urgency and emergency populated by a set of ‘doers’: international organisations and Non-Governmental Organisations (NGOs), heroic humanitarian workers, the military and the private sector, as well as donors. At the same time, it is well known that affected populations primarily rescue themselves, with the assistance of local civil society and host governments. Reflecting that reality, since the World Humanitarian Summit in 2016, ‘localization’ of aid has become a mantra of the sector. Yet, things appear not to be going so well. In this blog we try to provide conceptual pointers for explaining why. In line with Michael Barnett’s insight that humanitarian governance voluntarily or involuntarily produces or contributes to some kind of societal order, we ask in this blog what kind of order is being imagined and produced through humanitarian governance in relation to the localization agenda.

In general, there are two versions of humanitarian governance in circulation: the narrow version is concerned with the provision of immediate relief to human suffering. This traditional humanitarianism does not attempt to politically change the world or take a position on conflicts, but instead uses the humanitarian principles of humanity, impartiality, neutrality and independence to gain access to people in need and alleviate their suffering. In this sense, it operates as a stopgap measure: it only addresses needs and does not judge openly the conflict that causes the suffering. The second and more extensive interpretation signifies a broader concern for human welfare and incorporates political change to address the root causes of suffering through human rights, conflict resolution, emancipatory movements, and development cooperation.

In everyday practice and discourse, both interpretations of humanitarian governance are used in parallel, which leads to confusion or disagreement about the goals and roles of humanitarian action. This also means that what we mean by localization is essentially unclear. To illuminate the implications of this discrepancy, we consider three critical issues for the localization agenda, namely: humanitarian problem construction, the consolidation and growth of the sector, and the sorting of civilians.

The paradoxes of top-down humanitarian problem constructions

Once a humanitarian emergency is declared, it then shapes not only who is supposed to act but what is supposed to be done. Humanitarian problem construction involves the conceptualization of social and political needs, crises, and risks as ‘humanitarian problems’; it also entails new and/or expanded conceptualizations of humanitarian suffering that call on humanitarians to be present on the ground with their staff, values, and toolkits; carrying with it the assumption that humanitarians and their toolkits are relevant, useful, and welcome. Underpinning and reinforcing this emphasis on emergency is the invention and promulgation of a technical vocabulary. For example, while we have now become accustomed to the use of ‘L3’ as a way of describing the worst emergencies, it is only from the introduction of ‘L’ levels in the UN humanitarian reform of 2011 that L3 has worked as a global symbol to designate the most serious level of crisis and help humanitarians create a globally stratified map of emergencies.

So far, the localization agenda has not substantially altered the conceptualization of social and political needs, nor of crises and risk. To push the localization agenda forward, humanitarian governance should pay more attention to local definitions of crises, risks and ‘appropriate’ aid, so that humanitarian problems are no longer just defined by professionals, who then control the planning and distribution of resources.

In a similar vein, we are witnessing the persistence of a classic problem of humanitarian action, namely that the humanitarian sector legitimizes its interventions by producing higher numbers of both individuals in need and concomitant funding needs to legitimate humanitarian requests and interventions. This includes, for example, the mortality surveys in the Democratic Republic of the Congo (DRC) and Iraq; contestations over maternal deaths; the 2005 non-famine in Niger; exaggerated population counts in refugee camps and more recently talk about ‘unprecedented numbers of refugees. This has a paradoxical effect on the humanitarian sector.

On the one hand, the very limited funding for local NGOs is also increasingly recognized as a structural impediment to localization. Data released in the 2017 Global Humanitarian Assistance report showed that funding for local NGOs stayed very low, at 0.3 per cent of tracked funding. Even when all local stakeholders are added together, including governments, they still only accounted for two per cent of funding. On the other hand, the identification of unmet needs led to continuous expansion among international NGOs, a kind of ongoing mission creep, which is an inadvertent consequence in line with the expansive nature of risk. These categories and numbers leave the humanitarian sector in the double bind that it is not doing enough while simultaneously being too expansive. In both cases, it is falling short of its own and external normative expectations. The mortality surveys in the DRC, for instance, showed a degree of suffering that was unprecedented, but also led to debates about their validity and impact as a justification for the expansion of humanitarian aid.

Consolidation and growth: where is the local?

In general, multi-mandate organizations follow the broader interpretation of humanitarian governance and thus address a broader array of problems, including the prevention of crises and linking relief and development. The presence of different interpretations of governance has not stopped and has probably facilitated the humanitarian sector’s growth and rapid consolidation over the last three decades. Overall, the humanitarian ‘industry’ handled $27.3 billion in 2016, a six per cent increase on 2015. The largest humanitarian NGOs now have thousands of employees and annual turnover of many millions of dollars. While the consolidation and growth of the humanitarian enterprise can be seen as a success story for the humanitarian industry as such, the gap between available resources and perceived humanitarian needs is portrayed as growing continually wider. Several scholars have pointed out that this endemic and multi-faceted response ‘gap’—with respect to funding, technical capacity, material goods, humanitarian access, or political will—is the product of efforts to construct (and not discover) meaning. For example, it takes analytical labor to define and construct humanitarians as ‘becoming unprepared or ‘unfit for purpose.” Humanitarian actors are apt at describing and presenting ‘gaps’ as fundamental threats to addressing needs and/or constructing a more humane world order. Once again, local perspectives on this issue require more attention.

The sorting of civilians

A final issue which affects the meaning of localization concerns the sorting of civilians, which is currently in large part shaped by considerations of risk and security as emanating from the global war on terror and extremism. In qualitative terms, not only the language used to describe the intended recipients of aid (victims, beneficiaries, communities in crisis, clients, target groups, people in need, survivors, or customers) but also the categories of protected civilians and the calculus of suffering deployed to sort and select protectable civilians are in continuous flux. Generally, the 1990s and 2000s saw a continuous expansion of legal and political victim categories, such as internally displaced person (IDPs), and this expansion continues with a discursive broadening of sexual violence as a key mode of categorizing ‘humanitarian victims’, as it happened in Bosnia and the DRC, for example.

Importantly, a countertrend that is enabled both by the risk politics of humanitarianism and the turn to technology is the parallel turn to resilience thinking and the sorting of ‘protectable’ civilians, which increasingly represents a shrinking of the categories of civilians that receive protection. In particular, resilience thinking puts the onus of responsibility for being prepared for, or able to cope with, crises more on local actors than on international ones, which can lead to a shrinking of the categories of people that receive protection or other forms of aid. Yet, when the capacities of these local actors need to be strengthened, this nevertheless leads to an expansion of capacity-building activities by international organizations involved in humanitarian work.

Conclusion

In sum, the way that humanitarian governance orders the humanitarian field in terms of problem construction, consolidation and expansion, as well as with sorting of civilians, does not yet support the localization agenda. The localization agenda is important but if it is to be taken seriously, it needs to go hand in hand with a far more fundamental change of the humanitarian system than has happened so far.

The Weaponization of Killer Trucks: Vehicular Terror and Vehicular Crypts

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This text first appeared on the Border Criminologies blog and is re-posted here.

Kristin Bergtora Sandvik (S.J.D Harvard Law School 2008) is a professor of legal sociology at the Faculty of Law, University of Oslo and a Research Professor in Humanitarian Studies at PRIO. Her work focuses on refugee resettlement, legal mobilization, humanitarian technology, innovation and accountability. She currently writes on the 22 July Norwegian terror attacks, humanitarianism and lawfare, and digital bodies in aid.

Photo: Kai Gradert/Unsplash

On October 23, 2019, 39 bodies were found inside a refrigerator lorry on an industrial estate in Essex. The vehicle was registered in Varna, Bulgaria, had entered the UK four days before and was driven by a man from Northern-Ireland. The victims – 38 adults and a teenager – were identified as Vietnamese. This incident is just the latest example of vehicle-induced migrant mass fatalities.

Are these deaths accidental, or a result of lethal intentionality and if so, who is to blame? To reflect on the violence and structured immobility practices that lead to these deaths, I take the colloquial term ‘killer trucks’ as my point of departure. I juxtapose the concept’s ordinary use –the deployment of trucks for vehicular ramming attacks – with the regular occurrence of large numbers of individuals being found dead inside trailers, trucks, lorries and vans. I contrast the concept of ‘vehicular terror’ with ‘vehicular crypts’, whereby the cargo areas of lorries and trucks become vaults facilitating stacked burials. I link the notion of a widespread weaponization– the process through which an object that wasn’t a weapon becomes one – of trucks to questions of how we estimate and explain harm and danger. In this post I argue that we must link weaponization, and the type of lethal intentionality embedded in the weaponization process, to broader legal and political structures.

In recent years, commercial transport vehicles have become securitized and reconceived as existential threats through their use in urban terror attacks. Their presence is perceived with suspicion and fear, as urban landscapes are remodeled through bollards and security fencing. In accounts of vehicle ramming attacks in Berlin, London, Nice, Stockholm and New York, the exterior of vehicles—cars, vans, trucks, motorbikes—are construed as having innate qualities of mass and speed that make them inherently dangerous and their presence potentially dangerous. While the use of trucks as conduits for explosives and driving into crowds with lethal intent are not new tactics, the lethality of recent attacks has engendered a narrative focused on the ‘the terrifying simplicity’ of these attacks: we ‘now live in an era of the weaponized truck’ whereby ‘Western audiences are witnessing a transformation of the objects of everyday life into tools of unpredictable violence’. 

I suggest that this narrative of unpredictable danger is ‘good to think with’ when it comes to critically reflecting on vehicle-induced deaths and the ethics of the classification of the dead. When looking at how trucks—by design intended to serve logistical purposes—become lethal objects, or ‘killer trucks’—attention to context is crucial. When accounting for the rise of the ‘killer truck’ as a weapon of terror and destruction, we must do so with a careful view to positionality, materiality and political context. We must ask: what is a weapon? What is weaponization of everyday objects such as trucks; and who is harmed through this weaponization?

My proposition is that these questions enable the deaths of a different set of victims to come into view: During terror attacks, it is the exterior capabilities of trucks and lorries that produce deadly impact. The weaponization of trucks can also be considered through the lens of interior materiality. Here it’s not a presence of lethal factors such as mass and speed but a lack –of human consideration and air but also of legality and mobility rights – that produce lethality. It also makes visible how it is not only instances of individual criminality but also legal regimes governing mobility which produce harm and danger.

The Essex case is not exceptional, but part of a global pattern whereby trucks have become deadly crypts for migrants’ bodies. Examples abound: In 2003, 17 ‘illegal migrants’ from Mexico, Central America and the Dominican Republic died through dehydration, hyperthermia and suffocation inside an airtight container of an eighteen wheeler. In 2008, 54 Burmese migrants suffocated inside a truck in Thailand. The surviving migrants were charged with illegal entry. In 2015, in an event known as ‘the Parndorf tragedy’, 71 people were found suffocated at the back of a Slovenian meat lorry outside the village of Parndorf in Austria. The lorry was used by a  Budapest-based trafficking ring which smuggled thousands of people from Hungary into Austria and Germany in 2015.

We must pay attention to how the ‘killer’ capabilities of material objects are configured through the regulatory sorting regimes aimed at people and mobilities. Crypts are ‘an extreme class of the artifacts that form the material culture of clandestine migration’, they are containers forming units with migrant bodies, representing ‘frequently nothing more than a transitional space within a load of cargo.’  Structural factors such as ever stricter and more punitive migration regimes and aggressive counter-terrorism measures force people into cattle trucks, meat trucks, refrigerator trucks, moving vans – and produce the dangers these individuals face inside these crypts.

An important source of danger is time: speed and risk are inherently interlinked and there are different levels of risk involved in distinct modes of transport. The fastest modes of transport – airplanes – tend to be the safest, while the slowest are generally the most dangerous. Trucks and lorries – relatively slow modes of transport –are part of what Ruben Andersson (2014) calls the ‘illegality industry’. The slowness entails migrants being helplessly stuck inside trucks following unpredictable itineraries and being parked or abandoned at remote locations along the routes.

In the Parndorf case, the driver had by accident sealed the doors, so no air could come in. Police telephone intercepts –recorded but not analyzed in time – showed that the Afghan ringleader had later ordered the driver not to open the doors while the migrants could be heard screaming in the back.  The charges in the Parndorf case included charges of human trafficking, torture and ‘homicide with particular cruelty’. According to prosecutors, refugees were ‘often carried in closed, dark and airless van unsuitable for passenger transport, in crowded, inhuman, excruciating conditions’. In June 2018, four human smugglers from Afghanistan and Bulgaria were jailed for 25 years in the Kescemet city court in Hungary.   

While Parndorf, and other smuggling cases resulting in mass deaths, relate to intentional killings carried out by organized crime, the lethal intentionality in these cases is not only that of not opening doors, checking that there is enough ventilation and maintaining a temperature adequate for human survival. When we think about killer trucks, the processes through which they are weaponized and notions of unprecedented danger, we must also consider that lethal intentionality is also what creates migrant crypts in the first place, and that it emerges at the interface of legal regimes governing offenses related to smuggling, trafficking, crime, terror – and mobility.

New Directions in Humanitarian Governance: Technology, Juridification and Criminalization

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This text first appeared on Global Policy and is re-posted here. Kristin Bergtora Sandvik and Dennis Dijkzeul reflect on some of the new directions in humanitarian governance and the ambiguity of some of the principal techniques.

A member of the European Union assessment team disembarks a UN peacekeeping helicopter in Petit-Goâve, Haiti. 20/Jan/2010. UN Photo/Logan Abassi. www.un.org/av/photo/

According to an influential conception, humanitarian governance entails ‘the increasingly organized and internationalized attempt to save the lives, enhance the welfare, and reduce the suffering of the world’s most vulnerable populations.’ The actors involved in humanitarian governance include affected populations, civil society, host governments, the military, the private sector, international organisations and NGOs, and donors. Much of this governance is associated with the intended as well as the unintended consequences of humanitarian action.

In particular, these unintended consequences have brought about a quest for institutional or moral improvement of humanitarian action. Presented as progress narratives, these initiatives – or techniques – range from efforts to enhance accountability, for example through legalization, to offering better technological solutions. However, in recent years, the techniques of humanitarian governance are increasingly also incorporated into narratives of decline, where attempts to govern humanitarianism is also seen to hinder humanitarian access, hamper aid delivery and undermine the humanitarian principles of humanity, impartiality, neutrality, and independence. This blog post reflects on some of the new directions in humanitarian governance and the ambiguity of some of the principal techniques of such governance.

The Governance Techniques

Accountability to improve behavior. Starting from the mid-1990s, a number of sector-wide transparency and accountability initiatives (e.g., SPHERE, the Humanitarian Accountability Partnership (HAP) International, People in Aid, Groupe URD’s Compass, and more recently the Core Humanitarian Standard) have influenced humanitarian organisations. Criticism has been directed at ‘the accountability industry’ for emphasizing standardization and technocratization, which hide the actual politics, and for prioritizing upwards accountability to donors at the expense of true, participatory accountability processes with communities in crisis. Still, the quest for accountability remains a core normative ambition and shapes attempts to govern in the humanitarian arena.

As part of this, humanitarians are increasingly ‘code of conducted up’, in particular with respect to intimate personal relationships and financial transparency. What would previously be deemed either private behavior – such as substance abuse – or individual moral and personal failure – such as buying sex – is increasingly construed as a risk-generating activity threatening specific operations, organisational reputations, and the legitimacy of the sector itself. Despite the Oxfam sex scandal, there is not sufficient evidence – or a concerted push to establish such evidence – on whether the humanitarian sector is currently doing better in terms of its accountability.

The technological turn. Moreover, the ongoing digitization and datafication of humanitarian action have become central techniques of humanitarian governance, and increasingly shape our understanding of and response to emergencies. Digitization is dramatically changing the way aid agencies provide assistance, from blockchain technology to provide cash transfers to the use of biometrics with iris scans and fingerprinting to register and track beneficiary assistance. This has led to faster information exchanges and greater transparency about what is happening on the ground. At the same time, the integration of information technology has enabled an increasing degree of remote management, which has changed the dynamic between communities in crisis, responders, regional offices, and headquarters.

The technologization of humanitarian space have also brought on a much closer relationship with the private sector: big tech outfits as well as small startups. These actors also have limited experience with and knowledge of the ends and objectives of the humanitarian sector, while pursuing their own financial objectives with respect to commodification and use of data. In addition, the attendant security challenges are slowly receiving more attention. Spyware is being deployed by governments and warlords to provide surveillance of humanitarian officials and civilians. Data collected by humanitarian organizations may be stolen and misused by the same actors. Indifference, incompetence and bad planning might result in data breaches.

Juridification. Humanitarian governance is increasingly undertaken through law and law-like language as actors are held accountable through legal or quasi-legal mechanisms. One important trend is the  evolving body of international disaster response law (IDRL) aiming to eliminate bureaucratic barriers to the entry of relief personnel, goods and equipment, and the operation of relief programmes, as well as addressing regulatory failures to monitor and correct problems of quality and coordination in disasters.

A different kind of legalisation is taking place through the evolution and institutionalization of a legal standard for a ‘duty of care’ for humanitarian staff. The 2015 Steve Dennis versus the Norwegian Refugee Council case from the Oslo District court, have shifted the conceptualisation of the duty of care standard for humanitarian staff from being a good practice standard in human resource management to becoming a standard considered from and articulated through the language of law and liability. Although it is positive the humanitarian organizations need to work out the operational details of their duty of care, it can also lead to risk-avoidance or an increase in bureaucracy.

There is also an increasingly frequent assertion that ‘humanitarianism is being criminalized’ (here, here, here or here). According to the humanitarian narrative of ‘the criminalization of humanitarian space’, such criminalization can hamper access to affected communities and compromises the ability of humanitarian actors to deliver principled aid to fulfill the humanitarian imperative of assisting according to need. This includes the prohibition of material support for terrorism, that was extended to include humanitarian advocacy in the 2010 US Supreme Court decision Holder v. the Humanitarian Law Project and the use of the US False Claims Act to go after humanitarian NGOs operating in the occupied Palestinian territories. Based on complaints from a private individual In 2017 and 2018, the American University in Beirut (AUB) and the Norwegian People’s Aid (NPA) have reached costly settlements with the US government. Oxfam is currently facing a $ 160 million legal threat under the False Claims Act. Several more cases are under seal.

In parallel, there has been a broad trend towards to criminal prosecution of volunteer workers who have offered material support or protection – such as housing, transportation, food, education or rescue – to asylum seekers and refugees (here, here or here). Humanitarian work is here being construed as human smuggling or trafficking. At the same time, some types of criminalization are viewed as beneficial to ensure that humanitarians do no harm to beneficiaries or each other, for example with respect to sexual harassment and sexual violence. 

Conclusion

This blog post draws on our introduction to a 2019 special issue on humanitarian governance “A world in turmoil: governing risk, establishing order in humanitarian crises” published by Disasters. As discussed in the introduction and further analyzed in this blog post, it is ironic that the quest to deal with the unintended consequences of humanitarian action, has unintended effects as well. First, the initiatives listed above are often difficult to implement. Second, they also bear the risk of technocratization: these techniques are not neutral; they may hamper participation and obscure power politics. As illustrated by criminalization, some governance attempts can even contribute to a shrinking of humanitarian space. Third, they can lead to a lack of respect for the humanitarian principles, so that the protection of people in need is not well ensured.

Protecting children’s digital bodies through rights

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This text first appeared on Open Global Rights and is re-posted here.

Kristin Bergtora Sandvik is a socio-legal scholar with a particular interest in the politics of innovation and technology in the humanitarian space. She is a research professor in humanitarian studies at PRIO, and a professor in the Department of Criminology and Sociology of Law at the University of Oslo.

Children are becoming the objects of a multitude of monitoring devices—what are the possible negative ramifications in low resource contexts and fragile settings?

The recent incident of a UNHCR official tweeting a photo of an Iraqi refugee girl holding a piece of paper with all her personal data, including family composition and location, is remarkable for two reasons. First, because of the stunning indifference and perhaps also ignorance displayed by a high-ranking UN communications official with respect to a child’s personal data. However, the more notable aspect of this incident has been the widespread condemnation of the tweet (since deleted) and its sender, and her explanation that it was “six years old”. While public criticism has focused on the power gap between humanitarians and refugees and the precarious situation of Iraqi refugees, this incident is noteworthy because it marks the descent of a new figure in international aid and global governance: that of children’s digital bodies.

Because children are dependent, what technology promises most of all is almost unlimited care and control: directly by parents but indirectly by marketing agencies and tech companies building consumer profiles. As explained by the Deborah Lupton, in the political economy of the global North (and, I would add, the global East), children are becoming the objects of a multitude of monitoring devices that generate detailed data about them. What are the possible negative ramifications in low resources contexts and fragile settings characterized by deep-seated oversight and accountability deficits?

The rise of experimental practices: Ed. Tech, babies and biometrics

There is a long history of problematic educational transplants in aid context, from dumping used text books to culturally or linguistically inappropriate material. The history of tech-dumping in disasters is much more recent, but also problematically involves large-scale testing of educational technology platforms. While practitioners complain about relevance, lack of participatory engagement and questionable operability in the emergency context, ethical aspects of educational technology (Ed. Tech), data extraction—and how the collection of data from children and youth constitute part of the merging of aid and surveillance capitalism—are little discussed.

Another recent trend concerns infant biometric identification to help boost vaccination rates. Hundreds of thousands of children die annually due to preventable diseases, many because of inconsistencies in the provision of vaccine programs. Biometric identification is thus intended to link children with their medical records and overcome the logistical challenges of paper-based systems. Trials are now ongoing or planned for India, Bangladesh and Tanzania. While there are still technical challenges in accurately capturing the biometric data of infants, new biometric techniques capture fingers, eyes, faces, ears and feet. In addition to vaccines, uses for child biometrics include combatting aid fraud, identifying missing children and combatting identity theft.

In aid, data is increasingly extracted from children through the miniaturization and personalization of ICT technology. Infant and child biometrics are often coupled with tracking devices in the form of wristbands, necklaces, earpieces, and other devices which the users carry for extended periods of time.

Across the board, technology initiatives directed at children are usually presented as progress narratives, with little concern for unintended consequences. In the economy of suffering, children and infants are always the most deserving individuals, and life-saving interventions are hard to argue against. Similarly, the urgency of saving children functions as a call to action that affords aid and private sector actors room to maneuver with respect to testing and experimentation. At the same time, the mix of gadget distribution and data harvesting inevitably become part of a global data economy, where patterns of structural inequality are reproduced and exacerbated.

Children’s digital bodies

Despite the massive technologization of aid targeting children, so far, no critical thinking has gone into considering the production of children’s digital bodies in aid. The use of digital technologies creates corresponding “digital bodies”—images, information, biometrics, and other data stored in digital space—that represent the physical bodies of populations affected by conflict and natural hazards, but over which these populations have little say or control. These “digital bodies” co-constitute our personalities, relationships, legal and social personas—and today they have immense bearing on our rights and privileges as individuals and citizens. What is really different about children’s digital bodies? What is the specific nature of risk and harm these bodies might incur?

In a non-aid context, critical data researchers and privacy advocates are only just beginning to direct attention to these practices, in particular to the array of specific harms they may encounter, including but not limited to the erosion of privacy.

The question of testing unfinished products on children is deeply contentious: the possibility that unsafe products may be trialed in fragile and low resource settings under different requirements than those posed by rich countries is highly problematic.  On the other hand, parachuting and transplanting digital devices from the global North and East to the global South without any understanding of local needs, context and adaption practices is—based on the history of technological imperialism—ineffective, disempowering, a misuse of resources and, at worst, could further destabilize fragile school systems.

Very often, in aid tech targeting children, the potential for digital risk and harm for children is ignored or made invisible. Risk is phrased as an issue of data security and malfunction and human manipulation of data. Children—especially in low-resource settings—have few opportunities to challenge the knowledge generated through algorithms. They also have scant techno-legal consciousness with respect to how their personal data is being exploited, commodified and used for decisions about their future access to resources, such as healthcare, education, insurance, welfare, employment, and so on. There is the obvious risk of armed actors and other malicious actors accessing and exploiting data; but there are also issues connected to wearables, tablets and phones being used as listening devices useful for surveilling the child’s relatives and careers. It is incumbent on aid actors to understand both the opportunities posed by new technologies, as well as the potential harms they may present—not only during the response, but long after the emergency ends.

Conclusion: time to turn to the CRC!

The mainstreaming of a combination of surveillance and data extraction from children now taking place in aid, ranging from education technology to infant biometrics means that critical discussions of the ethical and legal implications for children’s digital bodies are becoming a burning issue.

The do no harm principle is a key ethical guidance post across fields of development, humanitarianism and global health. The examples above illustrate the need for investment in ethics and evidence on the impact of development and application of new technologies in low resource and fragile settings.  Practitioners and academics need to be alert to how the framing of structural problems shifts to problematizations being amenable to technological innovation and intervention and the interests of technology stakeholders.  But is that enough?

The Children’s Rights Convention of 1989 represented a watershed moment in thinking children’s right to integrity, to be heard and to protection of their physical bodies. Article 3.1 demands that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Time has now come to articulate and integrate an understanding of children’s digital bodies in international aid within this normative framework.