Accountability and humanitarianism...

From the Global Governance Watch website, we learn of an interesting development in terms of the rising demand for global administrative law within the fields of humanitarian aid and intervention. The Humanitarian Accountability Partnership (HAP) has released its 2008 Humanitarian Accountability Report. It assesses a wide range of different organisations, from IGOs (the World Bank, the UNHCR, IOM, NATO, IAEA, amongst others), NGOs (Transparency International, ICRC, IOC, again amongst many others), and transnational corporations (amongst which are Haliburton, Goldman Sachs, Royal Dutch Shell and Carrefour); and it contains the following five chapters:

Chapter 1: An Overview of Humanitarian Accountability in 2008. The opening chapter provides an overview of materials relevant to humanitarian accountability published in 2008. The purpose of the annual humanitarian accountability essay is to offer an informed and independent view of progress made by the humanitarian system towards meeting HAP’s strategic vision of “a humanitarian sector with a trusted and widely accepted accountability framework, which is transparent and accessible to all relevant parties”.

Chapter 2: Survey of Perceptions of humanitarian accountability. This chapter reports on the fourth annual survey of perceptions of humanitarian accountability.

Chapter 3: Voices of disaster survivors. During 2008, HAP staff held extensive discussions with communities affected by disasters. Some of the direct quotes recorded at various locations are presented here.

Chapter 4: Members’ Accountability Workplan Implementation Reports. In preparing for the 2009 General Assembly, most of HAP’s members prepared summary accountability workplan implementation reports. These are presented in tabulated form in this chapter.

Chapter 5: The HAP Secretariat Annual Report. This chapter was prepared by HAP staff and provides a self-assessment of progress achieved against the objectives set out in the 2008 workplan and the headline targets described in the 2007-2009 medium term strategic plan.

According to GGW, the general conclusion is that the major players in the field could do better:

The organization’s 2008 report reveals that there is room for improvement across the humanitarian sector. The report cites a study completed by One World Trust, which annually compares a select grouping of NGOs, IGO, and corporations, underscoring the need for UN accountability reform. In particular, UNICEF and UNHCR scored less than 30 points out of a possible 100 on organizational transparency.

Actually, digging a little deeper, the HAP is itself an extremely interesting body from a global administrative law perspective. It styles itself "the humanitarian sector's first international self-regulatory body", and, amongst other things, develops standards for measuring accountability and quality of service within humanitarian aid institutions, and "certifies those members that comply with the HAP Standard in Humanitarian Accountability and Quality Management". Its 2007 Standard in Humanitarian Accountability and Quality Management, "a quality assurance tool for humanitarian organizations", sets out the following six "benchmarks":

1. The agency shall establish a humanitarian quality management system.
2. The agency shall make the following information publicly available to intended beneficiaries, disaster-affected communities, agency staff and other specified stakeholders: (a) organisational background; (b) humanitarian accountability framework; (c) humanitarian plan; (d) progress reports; and (e) complaints handling procedures.
3. The agency shall enable beneficiaries and their representatives to participate in programme decisions and seek their informed consent.
4. The agency shall determine the competencies, attitudes and development needs of staff required to implement its humanitarian quality management system.
5. The agency shall establish and implement complaints-handling procedures that are effective, accessible and safe for intended beneficiaries, disaster-affected communities, agency staff, humanitarian partners and other specified bodies.
6. The agency shall establish a process of continual improvement for its humanitarian accountability framework and humanitarian quality management system.

Haven't had time to look into this in much detail, but it is certainly a striking example of the kind of dual-natured global administrative body that are becoming more and more common - that is, an entity that is at once an oversight body and an administrative body in its own right (i.e. insofar as it develops standards, grants certifications, etc.). The other immediately striking feature of the report and the Standard is the apparent focus on the managerial side of accountability (as opposed to a more robustly legal side). I have blogged on this focus within the field of humanitarianism before, on the issue of the Save the Children report on sexual abuse of children by aid workers; this HAP Report seems to take a very similar approach (indeed, the Save the Children report is itself reffered to with approval). A quick search of the 204-page report, for example, reveals that the term "criminal" does not appear, and there do not seem to be many - if any - real references to legal accountability mechanisms at all (for example, at p. 17 we learn that the "an organisation’s accountability capabilities [one of the categories in the table provided at the outset to this post, which can be found at p. 17] are measured by assessing the integration of key good practice principles in policies and procedures and the existence of management systems to support their implementation"). The key issue remains: managerial forms of accountability are certainly necessary; but are they - in this of all fields - even remotely sufficient?

New periodical: Journal of International Peacekeeping

The first issue of the Journal of International Peacekeeping has just been published, and the full text of all the articles are available online.

The Journal of International Peacekeeping is devoted to reporting upon and analyzing international peacekeeping with an emphasis upon legal and policy issues, but is not limited to these issues. Topics include inter alia peacekeeping, peace, war, conflict resolution, diplomacy, international law, international security, humanitarian relief, humanitarian law, and terrorism. The journal is of scholarly quality but is not narrowly theoretical. It provides the interested public - diplomats, civil servants, politicians, the military, academics, journalists, and NGO employees - with an up-to-date source of information on peacekeeping, enabling them to keep abreast of the most important developments in the field. Peacekeeping is treated in a pragmatic light, seen as a form of international military cooperation for the preservation or restoration of international peace and security. Attention is focused not only on UN peacekeeping operations, but other missions as well.

The Journal of International Peacekeeping is the continuation of the journal and yearbook International Peacekeeping, founded in 1994.

Of course, from our perspective, the most interesting issues relate to the accountability of international organizations (and perhaps of private military companies) for the actions of their peacekeepers, whether taken out in furtherence of their mandate, or in blatant abuse of their position. This is a range of topics on which I have blogged a couple of times before. I've only had time for a quick look, but there are a range of articles in the first volume of the Journal of International Peacekeeping that are of interest (and will have to be added to the GAL Bbiliography): One on the role of the UN in promoting the rule of law in post-conflict societies; on the ECtHR's Behrami decision; another on the House of Lords' Al Jedda judgment; and another on the immunity of the UN over Srebrenica before a Dutch court. There are also some relevant reviews of books on UN peacekeeping in Lebanon, Somalia and Kosovo, legal implications of peacekeeping, on international territorial administration, and on the "unintended consequences" of peacekeeping missions.

That's a lot of GAL for the first issue of a journal. Definitely one worth keeping an eye on...

UNHCR overstepping its mandate at the World Economic Forum?

... Unless, of course, it has a mandate for sponsoring crass, if well intentioned, activities.

Which it probably does. We can only assume that last year's promotion - "Experience Darfur!" - in Trafalgar Square, London, was a roaring success. That, at least, was not billed as a VIP-only event...

GAL and the Betancourt rescue: misuse of the ICRC emblem

No one can have missed the story of the dramatic rescue of the French-Columbian politician Ingrid Betancourt after six years of being held in captivity by the FARC in Columbia a few weeks back. In the last day or so, however, a new element of the "audacious" rescue has emerged, which perhaps raises some issues of GAL significance. I am speaking, of course, of the revelation of - and apology for- the fact that one of the rescuers wore the emblem of the International Committee of the Red Cross (ICRC) on his uniform as part - officially condoned or otherwise - of the efforts to deceive the rebel group into freeing the hostages, before themselves being captured.

It has been clear since news of the rescue broke that members of the Columbian military forces posed as humanitarian NGOs as part of the deception:

Plans for the mission stretch back to May 2007 when police officer John Pinchao emerged from the jungle, weak and disorientated, 17 days after escaping his Farc captors. He brought with him crucial details of a hostage camp, giving Colombia's military intelligence enough to plant a mole in Farc's top ranks. The plans were further shaped when Farc released six hostages in January, handing them over to the Venezuelan President Hugo Chavez.

The aim was to persuade the Farc leader holding Betancourt - Gerardo Aguilar Ramirez, known as César - that the hostages he held were to be moved to another hostage camp by helicopter, with the help of an international humanitarian NGO, so that negotiations could begin for their release.

The Colombians decided to pose as an NGO similar to the one used in the Chavez handovers.

That this might cause problems for future, genuine aid workers in carrying out their duties seems to have been largely overlooked until the emergence today of the fact that one rescuer displayed the emblem of the ICRC, a body with a special status in terms of international humanitarian law through the key role afforded to it in the Geneva Conventions. In order, inter alia, to protect the Organization and its neutrality (key to its ability to carry out its humanitarian functions in conflict situations), the use of the emblem for anything other than medical purposes is generally prohibited. In general terms, Article 37 of the 1st Additional Protocol to the Geneva Conventions prohibits "perfidy" in the following manner:

1. It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.

The following acts are examples of perfidy:

(a) the feigning of an intent to negotiate under a flag of truce or of a surrender;
(b) the feigning of an incapacitation by wounds or sickness;
(c) the feigning of civilian, non-combatant status; and
(d) the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict. (Emphasis added).

It remains, of course, an open question as to whether Additional Protocol 1 applies to the conflict between the Columbian Government and the FARC, although the ICRC has suggested that its provisions now form part of customary international humanitarian law. For much more detail on the international legal ins and outs of this issue, see this excellent post by Duncan Hollis over at Opinio Juris.

According to the ICRC website (see here), the Geneva Conventions contain a number of other rules on the use of the red cross emblem in particular, to the extent that they can only be used by the following actors:

• armed forces medical services (and only when carrying out medical duties);
• National Red Cross and Red Crescent Societies duly recognized and authorized by their governments to lend assistance to the medical services of armed forces;
• civilian hospitals and other medical facilities recognized as such by the government and authorized to display the emblem for protective purposes;
• other voluntary relief agencies subject to the same conditions as National Societies: they must have government recognition and authorization, and may use the emblem only for personnel and equipment allocated exclusively to medical services.

The Conventions also contain obligations on states to prevent and to punish misuse of the emblem. The admission and apology by the Columbian Government of the use of the emblem by one of its actors seems to imply recognition of wrongdoing on its part; whether or not its subsequent action can be viewed as discharging all of its international obligations remains, for the moment at least, very much an open question.

There can be little doubt that - despite its odd formal status - the ICRC is performing a public governance function in carrying out its humanitarian tasks. It is, indeed, one of the most interesting of global administrative bodies, both in terms of its legal structure and status, and through its extensive and important field operations. The sanctity of its symbols is also an unusual - if entirely understandable - feature. Whether or not we think that the official explanation from the Columbian Government - that "one member of the team had worn the emblem 'contradicting official orders' because he was nervous about the operation", but whose name would not be disclosed "because we do not want to affect his career" - rings entirely true, there can be no doubt that this incident raises interesting issues at the GAL/intellectual property/international humanitarian law nexus.

Save the Children report on aid worker/peacekeeper abuses

A topic that I have been meaning to blog on for a while now, the UK-based NGO Save the Children recently produced a report on a topic of huge importance, and with major areas of overlap with the GAL project: the abuse of power by the officials of international organizations engaged in humanitarian or peacekeeping functions. The report, entitled "No One to Turn To: The under-reporting of child sexual exploitation and abuse by aid workers and peacekeepers", is, as the subtitle suggests, confined to cases of the sexual abuse of children; however, many of the issues that arise in that context are of broader relevance for the question of the accountability of international organizations and their staff to third parties for rights violations.

The report makes three sets of general recommendations, two of which are of interest from a GAL perspective. Firstly, it proposes that wherever aid workers or peacekeepers are deployed, an "effective local complaints mechanism" should be established by the UN, with the participation of the national government in question and leading NGOs. This would ensure that those wishing to make a complaint could do so; that any such complaints were being investigated; and that all possible action was taken against the alleged perpetrator.

The second set of recommendations - and those that caught the imagination of the media - relate to the establishment of a new "global watchdog", located within the existing international structures (the Executive Committee on Humanitarian Affairs, the Executive Committee on Peace and Security, and the UN and NGO Task Force on Sexual Exploitation and Abuse). The proposed watchdog would have two main functions: firstly, to "monitor and evaluate the quality" of efforts by Task Force members to address the problem of child sexual abuse committed by members of their own organizations; and secondly to report back to the task force "on progress made and the challenges faced" in combatting such abuse.

Almost despite the subject matter, then, it seems plausible to suggest that the report and its recommendations fall largely within the realm of global administrative law; indeed, aside from the proposed creation of two administrative accountability mechanisms at different levels, the report does call for, for example, increased transparency from UN agencies and NGOs in sharing their internal statistics on reported abuse, and the responses taken (even if this information, in the first instance at least, is to remain confidential within the Task Force - p. 24). The elephant in the report, as it were, is, however, the vexed but important question of criminal liability, which is addressed only in passing, if at all. Instead, the issue of abuse is by and large treated as an administrative - indeed managerial - problem for the organizations involved; and it is in this that the report is ultimately a little disappointing.

Thus, the complaints mechanism remain a tool of essentially administrative oversight because it "would not in itself respond to allegations, but rather monitor and pursue the actions of others to ensure that the response was timely and effective" (p. 23) - including the local judicial system, but "only where it has jurisdiction". The issue of immunity is left entirely unaddressed; instead, where the local judiciary is unavailable or ineffective (as will often be the case in post-conflict or crisis settings), the international organizations present are encouraged simply "to take whatever steps are necessary to either create or strengthen a minimum protection response". This strikes me as neither a particularly robust nor far reaching "solution" to what is clearly an important and widespread problem.

Likewise, the global watchdog would not have any powers to actually investigate claims of abuse, but rather is simply there to monitor and evaluate the efforts of organizations in responding to the problem of child sexual abuse. In this, then, it remains an administrative oversight mechanism (if itself an administrative body); indeed, it's proposed role seems structurally identical to that of the individual complaints mechanism, simply extended from the micro- to the macro-level. There is, of course, the now ubiquitous "reporting requirement", along with the somewhat curious admonition that the watchdog should not simply point to deficiencies, but also "commend progress" - with perhaps even an annual award to the agency that has achieved most in this regard. Again, we might question here whether the proposals are robust and far-reaching enough to confront the gravity and urgency of the issue at hand.

This general feeling - that robust legal mechanisms and criminal liability - plays second fiddle throughout the report to a more managerial approach is confirmed by the tone and content of many of the justificatory passages. For example, in introducing the proposal for the new global watchdog, the report states that

[a] watchdog is a proven method of quality control in other sectors. It could help motivate international organisations to prioritise this issue by acknowledging progress and exposing inadequacies. It would trigger the leadership and managerial courage needed to put policies and guidance into practice.

And on the reporting mechanism:

Publishing data on allegations of abuse, and how they are responded to, international organisations would be open to evaluation by the general public, who they depend on for political and financial support. The conduct of staff would become a measure of organisational performance, much in the way that good financial management is within current reporting procedures in many international agencies.

No-one, of course, could deny that good managerial practice is important in all organisations, and that administrative agencies are not - or, at least, should not be - any exception in this regard; yet we are entitled to inquire as to whether framing a response to the issue of child sexual abuse by aid workers and peacekeepers entirely in these terms is appropriate. This holds even if we are concerned merely with the under-reporting of instances of abuse; however, as the third set of recommendations ("Tackling the root causes or drivers of abuse)" makes clear, the focus of the report is in fact much broader than its subtitle would suggest. They begin "To address the overall prevalence of child sexual exploitation and abuse in fragile states and emergencies...", and are perhaps the most disappointing element of the report, containing the vaguest formulations of such international organisation "staple recommendations" as "legal reform and policy development"; "capacity-building"; "awareness-raising"; "government-civil society partnership"; and so forth (pp. 25-26).

It is already becoming clear that the blanket immunity of international organisations is already being eroded by national courts where effective alternative means of redress are not provided (see, for more detail, this IILJ Working Paper by August Reinisch). While this is, at present, limited to internal employment disputes, the explicit human rights rationale animating these judgments will make it difficult, if not impossible, to refuse to set immunities aside in cases involving abuses of the rights of third parties, and a fortiori violations of the human rights of children. The Save the Children report has been useful in drawing attention to the issue it addresses as a whole; and it contains some interesting, if limited, GAL-related proposals for combatting it. Managerial improvements clearly have a part to play; however, it seems clear that far more robust administrative law mechanisms - not to mention effective provision made for individual criminal liability of those involved - have a much more important role to play in developing an overall strategy to confront the problem in question.