Building a Sociology of Law for the Humanitarian Field

Kristin Bergtora Sandvik and Kjersti Lohne

Legal sociology has paid significant attention to human rights, but in contrast to legal anthropology, little focus has been given to humanitarianism. In this contribution, we ask, what does a legal sociological research agenda for the humanitarian field look like?

Humanitarianism is many things to many people. As described by Miriam Ticktin, humanitarianism is ‘an ethos, a cluster of sentiments, a set of laws, a moral imperative to intervene, and a form of government’; it is ‘one way to do good or to improve aspects of the human condition by focusing on suffering and saving lives in times of crisis or emergency; for instance, humanitarians provide temporary shelter, food, and medical care during wartime or immediately after disasters’. The actors involved include affected populations, civil society, host governments, the private sector, international organizations, humanitarian practitioners, the international humanitarian sector and donors.

As academics, it is our task to re-conceptualize this humanitarianism in terms of power, legitimacy and regimes of control and surveillance – both from an internal perspective concerned with humanitarian accountability in the global emergency zone, and from an external perspective that conceptualizes humanitarianism as a form of governance and social fact in global society.

An important aspect here is that as the humanitarian sector continues to expand, the field is legalizing. Beyond international humanitarian law, humanitarian action is increasingly compelled and constrained by a plethora of soft law and legal discourses, and what was once a largely unregulated field of practice is now emerging as a transnational humanitarian space where authority, governance, legitimacy and power is progressively invoked through law.

Historically, humanitarian action has been linked to the normative framework of international humanitarian law (IHL), while emerging as a largely unregulated field of practice. The study of IHL has overwhelmingly been the terrain of doctrinal legal scholars, while the apparent lack of other law has meant that, until recently, legal sociologists have paid little attention to the humanitarian sector. There has also been little sociological concern regarding the consequences of not asking questions about the role of law in the humanitarian project.

As scholars specifically focused on the legal aspects of humanitarian space and the evolving law of humanitarian action, we are interested in normative constructions and contestations regarding conceptualizations of aid, agency, crisis, responsibility and rights within and across different social fields of regulation and governance.  We argue that legal sociology is of central analytical value to this prism, as it focuses on the study of rules, standards, norms; the evolving role of the legal profession and the legalization of conflict resolution in humanitarian governance. Legal sociology can also offer important perspectives on the relative lack of regulation of the humanitarian space, and on the normative orderings that occupy this space in competition with, as a substitution for, or in parallel to legal norms.

In the following, we explore a set of key questions concerning the relationship between humanitarian governance and law:

  • What is the relationship between humanitarian norms and law, and the normative and legal hierarchy of competing humanitarian values?
  • What are the implications of enfranchising non-state actors to partially ‘see like a state’ in humanitarian contexts?
  • What type of authority – and legal authority – do humanitarians have, and how is this authority produced and constrained through rules, norms and standards; including soft regulation, contractual practices and financial policies?
  • What does this authority allow humanitarians to do, and to the extent that humanitarian actors are held accountable, how does this happen?

The relationship between norms and rules

We are interested in the frictions and blind spots that arise in the relationships between humanitarian imperatives (‘do no harm’, ‘aid according to need’), principles (neutrality, impartiality, universality, humanity), and legal frameworks aimed at regulating specific aspects of humanitarian logistics and protection activities. Examples of relationships that need critical unpacking include the relationship between needs-based and rights-based humanitarianism; and the relationship between humanitarian norms, soft law, and due process considerations in refugee resettlement.

There is a similar need for critical inquiry with respect to the relationship and legal hierarchy between humanitarian norms and rules, and neighboring human insecurity fields such as development, human rights, mass atrocity response and international criminal justice.  Specifically, more attention should be given to the substantive aspects of these relationships, and to the implications of mission creeps. For example, ICTs and data are useful prisms for exploring emergent splits between human rights and humanitarians as crisis responding communities. This includes how this split shapes and is shaped by each group’s use of data and the impact the use has on crisis affected individuals and communities. It also includes increasingly divergent perceptions of what responsible approaches to data collection, maintenance, storage and sharing of data look like.

Seeing like a state

Humanitarian organizations are not states. Yet, they are transnational, have thousands of staff, operate and litigate in multiple jurisdictions and are actively involved in sponsoring and pushing for soft law developments. How do we analyze the tensions between the construction of an emergency zone which enfranchises non-state actors to govern; and the structure of human rights law, which requires that individuals have access to accountability mechanisms, including the means for obtaining binding legal redress through state institutions?

For example, legalistic versions of rights-based approaches (RBA) to humanitarian action are premised on the notion that rights holders are entitled to hold the duty bearer accountable. Yet, according to international law and the view of international humanitarian organizations, this right is directed principally at the state and its agents. Humanitarian organizations suggest that they must consider ‘rights-holders with legal entitlements’ but do not see themselves as accountable for the fulfillment of those rights. Organizations sometimes operate with competing definitions of RBA, where humanitarian organizations seek to strengthen the capacities of the rights holders to make claims and of duty bearers to satisfy those claims, but are not themselves directly accountable to persons of concern. What are the implications of enfranchising non-state actors to partially behave and ‘see like a state’?

Questions of authority

Next, we are interested in what type of authority – and legal authority – humanitarians have, and how this authority is produced and constrained through rules, norms and standards; including soft regulation, contractual practices and financial policies.

The broader context for the regularization of humanitarian governance is the accelerating reach of international law into the realm of international administrative governance. In the late 1980s and early 1990s, the lack of accountability and transparency raised serious questions about the procedural legitimacy of international organizations. Serious concerns were raised about the emergence of undemocratic liberalism as a consequence of global bureaucratization. The answer to this anxiety about bureaucracy was to bring in more of it: It was thought that rationalization and the emphasis of proper and correct procedures would ensure procedural legitimacy. Hence, the bureaucratization and regularization of humanitarian action takes place mostly through the proliferation of soft norms resulting from multilateral legal agreements, international adjudication, and the increased law-making capacity of international organizations. Legal sociology may here contribute to develop a critical perspective on this aspect of humanitarian governance, for instance by mapping out the role of legal actors and legal authority in humanitarian organizations and transnational coalition networks in humanitarian governance.

To exemplify, socio-legal and anthropological interest in soft law have mostly focused on international instruments for human rights protection, which has resulted in an unfortunate scholarly tendency to reify soft law as inherently progressive. Yet the power operating in the crafting of soft law and the logic of softness may create inequality between groups or result in oppression. Constituted on ideas of emergency and urgency, humanitarian space is a site with extreme power differences between actors, to the extent that aid affected communities are rarely represented around the table when new soft law instruments are drafted.

We should bear this in mind as we engage critically with the emergent law of humanitarian action. The informality of soft law may jeopardize formalized accountability mechanisms, or weaken the obligations of organizations, humanitarians, private sector actors or states in the humanitarian field. Even when crisis-affected communities participate, the notion of pluralistic participation may conceal that soft law production is actually limited to powerful actors; and contribute to misrepresent how the humanitarian sector is structured both on and according to principles of systemic inequality. Legal sociology could here provide a close study on how best practices and community norms are articulated and codified as soft law.


Finally, we ask what this authority allows humanitarians to do, and to the extent that humanitarian actors are held accountable, how this happens. Here we want to briefly outline two emergent developments.

While scholars have often approached this topic by examining the role and responsibilities of international organizations, the 2015 Steve Dennis versus the Norwegian Refugee Council case from the Oslo District court, and its aftermath provides an interesting case study for gauging the evolving juridification of humanitarian organizations’ duty of care for their staff, and the broader implications of a shift towards court-ordered humanitarian practice. Activities and processes that were before considered ‘good practice’ within a human resources frame are increasingly juridified. This shift also reshapes modes of organizing work and workers. In the aftermath of the Steve Dennis case, organizations have struggled to define what constitutes acceptable levels of insurance for a multinational staff. The distributive effects on peoples everyday professional lives, including how such effects may vary according to nationality, race or religion, merit specific attention.

Finally, questions must be asked about the role of global and national publics in holding states and humanitarian actors accountable for how they contribute to end/engender human suffering. In the human rights field, social movements and legal mobilization are central for holding states accountable. However, while contemporary humanitarianism began as a series of social movements – including the anti-slavery movements, missionary engagements and the internationalization of Red Cross societies – present-day humanitarians appear to have a deeply ambivalent attitude to enlist bystanders, i.e the general public, beyond fundraising and social media support. On the other hand, with the present difficulties facing humanitarians with respect to access to humanitarian space and the declining respect for international humanitarian law, ideas about public engagement may be shifting.


While humanitarianism has global and avowedly benevolent ambitions for ordering and eradicating crisis, manifested through a global system of organizations operating within, in parallel with, above and across the domestic state system, and legitimated by moral universals (neutrality, humanity etc.), it is also a field epitomizing global divisions and inequalities. At the same time, humanitarianism – as a transnational practice field and a cluster of cosmopolitan sentiments – is expanding. As part of this, the field is legalizing. Having outlined a few established practices and emergent developments of the mutually constitutive relationship between law and humanitarianism, we argue that legal sociology is well situated to track this development.

This post originally appeared at  the Sociological Review August 18th 2017. The post builds on research output from the PRIO-project ‘Aid in Crisis? Rights-Based Approaches and Humanitarian Outcomes’, funded by the Research Council of Norway under the AIDEFFECT programme.

Kristin Bergtora Sandvik is Research Professor in Humanitarian Studies, PRIO & Professor of Sociology of Law in the Department of Criminology and Sociology of Law at the University of Oslo.

Kjersti Lohne is Postdoctoral Fellow in the Department of Criminology and Sociology of Law at the University of Oslo. 

Never again, again: The Yazidi Genocide

On 15 August 2014, ISIS fighters ordered the Yazidis of Kocho to assemble in the village school. The women and younger children were forced upstairs while, on the ground floor, ISIS fighters divided the men and older boys in groups before leading them away. This moment, three years ago today, marked the first step in the destruction of the last intact Yazidi community in Sinjar, northern Iraq.

Other villages had been emptied days earlier following the 3 August 2014 ISIS attack on the Sinjar region. Many Yazidis fled into the Kurdish region of Iraq. Those closest to Mount Sinjar fled to its arid upper slopes, where they were besieged by ISIS. Without access to water and under a pounding sun, hundreds, mainly young children, died of dehydration. By 14 August, the YPG – the Syrian-Kurdish forces, operating under the cover of American and Iraqi airstrikes – opened a humanitarian corridor to rescue the survivors.

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Thousands of Yazidis, including those from Kocho, were captured on the ground. In the days that followed, reports emerged of ISIS fighters killing Yazidi men, adolescent boys, and older women en masse; and of their forcing younger Yazidi women and girls into holding sites to be registered and sold. Later, news would circulate of young Yazidi boys being taken to ISIS “cub camps”, where they were indoctrinated and trained. It was quickly apparent that the Yazidi community was the target of the attack. ISIS publicly declared its intention to eradicate the Yazidis – a millienia-old religious group which ISIS reviles as pagans – from its “caliphate”.

The US Holocaust Memorial Museum, and then the Commission of Inquiry on Syria released reports determining that ISIS was committing genocide, as well as crimes against humanity and war crimes, in its multi-pronged attack on Yazidi women, children, and men. Both reports emphasised that ISIS’ genocide of the Yazidis relied on all five prohibited acts detailed in the 1948 Genocide Convention.

In doing so, the reports illuminated the continuum of genocidal violence, and underlined the central role that gender plays. As has historically been the case, the killings were disproportionately (but not solely) of men and older boys – the holders of perceived and actual power in public and private life. Many Yazidi women who were past childbearing age were also killed. Younger women and girls were forced into sexual slavery, and were often also beaten, starved, and forced to labour in fighters’ houses. This span of violence – often (and sometimes luridly) reduced in reports to sexual enslavement alone – was an assault on the victims themselves, as well as on the men (as the would-be protectors of the women). It was also intended to rend social fabric of the Yazidi community, through the perceived “dishonouring” of the women and girls, and as a consequence of pregnancies resulting from rape by ISIS fighters. Crimes committed against Yazidi children cleaved to gendered roles as conceived by ISIS fighters. Girls, at the age of nine, were enslaved, while boys were trained to fight.

Three years on, more than 2800 Yazidi women and children are still held captive by ISIS, suffering daily almost-unthinkable brutalities. Outside of the efforts of Yazidi community itself, there has been no strategy or attempt to rescue those still held. Families, most living in displaced peoples’ camps, are selling all they have (and borrowing all they can) to buy their relatives back from the very fighters who are abusing them, or to pay smugglers to retrieve them.

As territory in Sinjar has been reclaimed from ISIS, over 35 mass graves have been found, including five in Kocho. Political wrangling between the Kurdish regional government and Iraqi central government, and rising tensions among various armed groups in Sinjar, have prevented the preservation and collection of forensic evidence, the identification of remains, and the passage of Yazidi families who wish to return.

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Introducing Sareta Ashraph


It is our great pleasure to introduce our new IntLawGrrls contributor Sareta Ashraph. From May 2012 to November 2016, Sareta served as the Chief Analyst on the Commission of Inquiry on the Syrian Arab Republic, documenting violations of international law in the context of the ongoing conflict. She was the primary author of the Commission’s June 2016 report “They Came to Destroy: ISIS’s Crimes Against the Yazidis”, which found that ISIS was committing the crime of genocide. From January to March 2017, Sareta served as the Practitioner-in-Residence in Stanford Law School, researching the role gender plays in the commission of the crime of genocide.

Immediately prior to working joining the Syria Commission, she served as the Analyst on the Commission of Inquiry on Libya. In 2010 and 2011, Sareta was the Legal Adviser to the Office of the Public Counsel for the Defence in the International Criminal Court. In 2009, Sareta worked as a Legal Consultant to the United Nations Fact-Finding Mission on the Gaza Conflict. From 2004 to 2009, Sareta was based in Freetown, Sierra Leone where she was Co-Counsel representing Issa Sesay (the former interim Leader of the Revolutionary United Front) before the Special Court for Sierra Leone. Sareta is a member of Garden Court Chambers in London.

Heartfelt welcome!

Georgia’s very own Öcalan? Mukhtarli’s Cross border-abduction in light of Georgia’s obligations under IHRL

This post concerns the case of Afgan Mukhtarli, an Azerbaijani investigative journalist (reporting on the possible corruption of Azerbaijani Authorities) who was allegedly abducted from Tbilisi, Georgia. He is now facing trial in Azerbaijan. Notably, Georgia’s International Human Rights Law (IHRL) obligations vis-à-vis Mr. Mukhtarli are brought to the forefront.

The Facts

On 29 May 2017, Afgan Mukhtarli, who had been in exile in Georgia with his wife since 2015, supposedly vanished near his home in Tbilisi. As stated by Mukhtarli’s lawyer, Mr. Sadigov, Mukhtarli was snatched by men who are believed to be agents of the Georgian Security Forces. They were dressed in plain clothing. According to Mukhtarli, his captors changed vehicles at least twice (see here and here). In the second vehicle, the kidnappers spoke Azeri and eventually brought Mukhtarli to an Azerbaijani border checkpoint in the Balaken district (border shared by Georgia and Azerbaijan), at about 11 p.m. on 29 May . He is now in detention in Baku and, according to the HRW, faces bogus, politically motivated charges of illegal border crossing and smuggling. On 31 May, additional charges against Mukhtarli were pressed by the Azerbaijani authorities, blaming him of violent resistance against law enforcement officials. Baku’s Sabail district court sent him into pre-trial detention for three months. According to Amnesty International, Mr. Mukhtarli is at risk of torture.

On 30 May 2017, a statement by the Public Defender of Georgia called on Georgia’s Law Enforcement agencies to urgently and effectively respond to Mukhtarli’s case. On 31 May 2017, the Ministry of Internal Affairs of Georgia stated an investigation of illegal restriction of freedom had been launched.

Unwilling or unable to protect human rights?

The way this case comes across, is that the Georgian Government failed either willingly or unwillingly to protect Mr. Mukhtarli on its soil under IHRL. If Georgia failed unwillingly to protect Mr. Mukhtarli, then this conveys Georgia’s border forces are not fully able to discharge their duties, and anyone can either freely enter Georgian territory or leave unchecked. This would also suggest, the Georgian government and its organs are not in full control of Georgian territory’s ins and outs. On 1 June 2017, Georgia denied to be the part of the kidnapping. A follow-up question, however, to such a denial is whose state agents were then involved in the kidnapping and transport of the journalist to the Georgian-Azeri border? On the other hand, if Georgia failed willingly, this would signify, Georgia’s security forces were all along aware of the operation taking place and were in fact even part of what seems a carefully orchestrated move. Georgia would subsequently be in breach of the ECHR, CAT and the ICCPR to name just a few instruments.

What does IHRL have to say?

To begin with, the main aim of IHRL is to protect individuals from their rights being violated. It was “devised to protect the individual against the arbitrary exercise of power by the authorities of the territorial state.” (F. Coomans and M. T. Kaminga, ‘Comparative Introductory Comments on the Extraterritorial Application of Human Rights Treaties’, in F. Coomans and M. T. Kamminga (eds), Extraterritorial Application of Human Rights Treatise (Antwerp- Oxford: Intersentia, 2004), 1-7, at 1). When states ratify IHRL instruments, they pledge upholding the rights enshrined by the latter. IHRL is applicable to “everyone everywhere” (M. Sassòli et al, How Does Law Protect in War? Vol. I (ICRC, 2006) at 341), including situations of state extraterritorial activities (see K. Da Costa, The Extraterritorial Application of Selected Human Rights Treaties (Martinus Nijhoff Publishers 2013)). In other words, a state is under the obligation to respect and protect human rights as guaranteed by applicable treaties wherever it exercises jurisdiction, i.e. control.

Consequently, IHRL binds states with both negative and positive obligations, the former obliging a state to respect human rights, that is not to commit human rights violations; the latter requiring a state to ensure or secure the human rights of persons within its jurisdiction and prevent human rights violations by foreign states or private individuals (M. Milanovic, ‘From Compromise to Principle: Clarifying the concept of State Jurisdiction in Human Rights Treatise’, 8 Human Rights Law Review (2008), 411-448, at 441-442).

To be even more precise, the negative and positive obligations can be then divided into three levels of obligations (W. Kälin and J. Kunzli, The Law of International Human Rights Protection (Oxford University Press, 2010) at 96-97):

  1. Obligation to respect: states do not interfere in the enjoyment of persons’ rights, i.e. negative obligations; (ibid., 96)
  2. Obligation to protect: states have positive human rights law obligations to protect the interests of those concerned and protect their human rights against threats emanating from breaches by third parties, natural or human made risks. In practice, this involves ensuring the concerned human rights guarantees, not only between private actors, but also “vis-à-vis state agents acting ultra vires or agents of third states.” (ibid.)
  3. Obligations to fulfil, a third level, show that states are required to fulfil human rights, i.e. to ensure that they are realised in practice as comprehensively as possible, in the form of the adoption of legislative or administrative measures to establish the legal, institutional and procedural basis for the full realisation of the concerned right (ibid., 97).

The particularity of the obligation to protect is that it arises if the state is aware, or could have been aware; if sufficient caution had been exercised of the violation or threat thereof; and if it has practical and legal means to prevent it. The obligation to protect may either be immediate and operational, encompassing police intervention; amount to precautionary measures, e.g. by a court; or take the form of legislative enactments, such as statutory prohibitions and penalties (ibid., 96). 


In this case, Georgia appears to have failed to protect Mr. Mukhtarli, in the segments of prevention and protection. It is improbable the border guards did not notice the situation Mr. Mukhtarli could have been in. The checkpoint guards – as agents of the state of Georgia – were under the obligation to impede the crossing of Mr. Mukhtarli and those accompanying him, to say the very least. This would have averted his forceful return to Baku.

Introducing Natia Kalandarishvili-Mueller


It is our great pleasure to introduce our new IntLawGrrls contributor Natia Kalandarishvili-Mueller! Natia is a Lecturer in International Humanitarian Law (IHL) at Tbilisi State University, Institute of International Law, Faculty of Law. Natia’s professional activities include working as a Chief Legal Specialist in the Division of International Law and International Organizations at the Office of the State Minister of Georgia for Reintegration, a key ministry that dealt with the conflicts in Georgia (January 2008 – August 2009); giving legal advice in International Law to the same ministry (January–March 2013) as well as being an Invited Lecturer for selected classes in the field of IHL at the Geneva University (April 2013), the ETH Zurich (April 2015), and the University of Basel (March 2016). Natia’s professional affiliations include the International Law Association – Swiss Branch. She has recently submitted her PhD thesis in IHL (on military occupation) at the University of Essex, School of Law, and is currently under examination.

Heartfelt welcome!

Write On! Laureate Program in International Law

UoM-logo-thumbThis installment of Write On!, our periodic compilation of calls for papers, includes calls to present at Melbourne Law School, as follows:

The Laureate Program in International Law at Melbourne Law School will be holding a Conference on Humanitarianism and the Remaking of International Law: History, Ideology, Practice, Technology on May 31st, 2018 in Melbourne, Australia.

Those proposing papers for presentation at the conference should submit a one page abstract and brief bio by email to Professor Anne Orford at by September 1st, 2017.

The language and logic of humanitarianism occupy an increasingly central place in international law. Humanitarian reason has shaped the ideology, practice, and technologies of international law over the past century. For some, this trend is clearly positive — international law is reimagined as humanity’s law. Yet critics have pointed to the dark side of these developments and of the humanitarian logic operating within international law.

This conference will bring together scholars to think critically about the ideology, institutions, practices, and technologies that condition modern humanitarianism and its relation to international law. For more information and a list of confirmed speakers, please visit


Write On! Irish Yearbook of International Law

backlit_keyboardThis installment of Write On!, our periodic compilation of calls for papers, includes calls to submit papers to the Irish Yearbook of International Law, as follows:

► The Irish Yearbook of International Law is now accepting submissions for the next Volume (Volume XIII (2018)). Edited by Professor Siobhán Mullaly (incoming at NUI Galway) and Professor Fiona de Londras (University of Birmingham) — members of IntLawGrrls — and published by Hart Publishing, the Yearbook is internationally peer reviewed and publishes longer and shorter articles on all areas of international law.

The Irish Yearbook of International Law is committed to the publication of articles of general interest in international law as well as articles that have a particular connection to, or relevance for, Ireland. Articles are usually 10,000 to 12,000 words in length, although longer pieces will be considered. The Yearbook also publishes a small number of shorter articles and notes, which should not exceed 6,000 words.

Authors are asked to conform to the Hart Publishing house style. Submissions, comprising a brief 100-word abstract, article and confirmation of exclusive submission, should be sent to both Siobhán Mullally ( and Fiona de Londras( by October 31 2017. Initial inquiries can be directed to either or both Editors.

If you wish to review a title in the Yearbook’s book review section, please contact the book reviews editor Dr. Dug Cubie, (University College Cork.)