The Right to Seek and Enjoy Asylum During COVID-19

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A Syrian boy poses for a picture during an awareness workshop on Coronavirus (COVID-19) held by Doctor Ali Ghazal at a camp for displaced people in Atme town in Syria’s northwestern Idlib province, near the border with Turkey, on March 14, 2020. (Photo by AAREF WATAD / AFP)

In the words of the UN High Commissioner for Refugees, Filippo Grandi, “[i]f ever we needed reminding that we live in an interconnected world, the novel coronavirus has brought that home.” Though it is a problem common to all of us, the suffering is disproportionately more for the world’s most vulnerable groups, including refugees and asylum-seekers. These vulnerabilities are exacerbated by State practices limiting asylum as a response to the pandemic. Though public health emergencies allow States to impose certain limitations, this must be done in compliance with States’ relevant obligations under international law. This post provides a short overview of the most basic but key protections afforded to asylum-seekers and refugees under international law.

Though there is no internationally agreed upon legal definition of asylum, the UNHCR defines it as a process starting with safe admission into a territory and concluding with durable solutions, i.e., voluntary return in safety and dignity, local integration, or resettlement to another location or country. “Asylum-seeker” refers to individuals who are seeking international protection and have not yet been granted asylum by the receiving State. “Refugee” refers to someone who has left their country of origin and is unable or unwilling to return because of a serious threat to their life or freedom on the grounds listed under Article 1A(2) of the 1951 Refugee Convention, i.e., race, religion, nationality, membership of a particular social group, or political opinion. Other regional instruments may provide different definitions to include other grounds for refugee status, such as a “massive violation of human rights” (e.g., the Cartagena Declaration on Refugees). Not every asylum-seeker will ultimately be recognized as a refugee, but every refugee is initially an asylum-seeker. In that regard, at the international level, refugee status entitles those who satisfy that criteria to a specific set of protective regimes laid out in the 1951 Convention and its 1967 Protocol. However, asylum-seekers are still entitled to certain protections in compliance with the receiving State’s obligations under international law, regardless of being recognized as a refugee.

The right to seek and enjoy asylum is enshrined in various international and regional instruments including the Universal Declaration of Human Rights, African Charter on Human and Peoples’ Rights, and Charter of Fundamental Rights of the European Union. The UNHCR interprets the right to asylum to include respect for the principle of non-refoulement, admission to the territories of States, and being treated in compliance with the respective human rights and refugee law standards. Individuals seeking international protection would benefit from the human rights obligations that a State owes to its citizens without any discrimination.

But what are the main parameters of such protection during a pandemic?

The recently issued Human Mobility and Human Rights in the COVID-19 Pandemic: Principles of Protection for Migrants, Refugees, and Other Displaced Persons developed by a committee of established experts and practitioners, and endorsed by a 1,000 international experts, lays out 14 key principles applicable to all persons, irrespective of their immigration status. These principles are developed to elucidate the scope of relevant human rights obligations during emergencies as States and other relevant stakeholders navigate the pandemic response.

In the same vein, the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR (adopted by the UN Economic and Social Council and UN Human Rights Committee general comments on states of emergency and freedom of movement), provide complimentary guidance as they are critical in implementing the scope of limitations to human rights in public health and national emergency situations. The Siracusa Principles highlight that such limitation must be based on one of the grounds recognized by the relevant article; respond to a pressing public or social need; pursue a legitimate aim; and be proportionate to that aim (Principle 10). Any derogation measure must be “strictly necessary to deal with the threat and proportionate to its nature and extent” (Principle 39). Additionally, certain rights are non-derogable even in the events of public emergency, including the right to life and freedom from torture, cruel, inhuman, or degrading treatment, or punishment among others.

In light of the above, key principles pertaining to States’ treatment of asylum-seekers and refugees in a pandemic can be listed as follows:

Non-refoulement

The prohibition of return (to a real risk of persecution, arbitrary deprivation of life, torture, or other cruel, inhuman, or degrading treatment) cannot be derogated from, even during a public health emergency. The cornerstone principle guaranteeing the right to seek and enjoy asylum is the principle of non-refoulement set forth under Article 33 of the 1951 Convention, which prohibits States from expelling or returning refugees “in any manner . . . where his life or freedom would be threatened.” The principle applies not only to removal, but also to refusal of entry. It applies to all refugees – even if their status has not been officially determined. The prohibition has attained the status of customary international law and is considered a jus cogens norm.

As the UNHCR clarified in its recent guidance on COVID-19 responses, imposing blanket measures to prevent refugees or asylum-seekers from admission or discriminating against certain nationals without demonstrating relevant evidence of a health risk or putting in place measures to protect against refoulement would violate the prohibition. However, in the US, the Department of Health and Human Services has implemented an order to suspend the introduction of persons into the US from certain countries and requiring their immediate repatriation. Belgium and the Netherlands have also suspended the right to asylum for newly arriving asylum-seekers due to COVID-19 despite the guidance from the European Commission stating that even though national authorities may take necessary measures to contain further spread of the pandemic, such measures should be implemented in a non-discriminatory way taking into account the principle of non-refoulement and obligations under international law. Closing borders altogether in these manners violates the principle of non-refoulement affecting the right to seek and enjoy asylum.

Measures on asylum-seekers upon entry

In all cases, non-discrimination, human rights, and dignity of all travelers must be respected. Relevant WHO regulations are given particular weight in the context of a limitation imposed on the ground of public health (Siracusa Principles, Principle 26). As defined by the WHO’s International Health Regulations, countries may impose relevant measures during pandemics as long as they are non-arbitrary, non-discriminatory, and proportionate. Similarly, medical examinations and other measures may be implemented for “travelers” (“a natural person undertaking an international voyage”) at ports of entry, but these measures cannot be “invasive.” Similarly, Article 13 of the EU Reception Conditions Directive lays out that EU Member States may proceed to a medical screening of applicants for international protection on public health grounds while such medical screening must comply with fundamental rights and the principle of proportionality, necessity, and non-discrimination. Furthermore, Article 19 of the Directive requires that applicants receive “the necessary health care, which shall include, at least, emergency care and essential treatment of illnesses and of serious mental disorders.” The European Commission specified that such health care would also include relevant treatment for COVID-19.

Non-discrimination

Lack of effective realization of non-discrimination undermines the right to asylum. Core international human rights treaties prohibit “discrimination of any kind” viz. refugees and asylum-seekers. In practice, however, migrants are less likely to benefit from relevant health and financial services due to lack of legal status and access to services. Moreover, migrants are often stigmatized and blamed for spreading viruses. In other cases, COVID-19 measures are applied in discriminatory manners as seen in Lebanon, where curfews have been applied more stringently towards Syrian refugees.

Equal treatment and non-discrimination with regards to the right to health are especially crucial in the context of COVID-19. As part of the right to health, States must provide access to food, water, sanitation, and shelter to all persons (UDHR Art. 25 and ICESCR Art. 12 in particular). States must refrain from practices reinforcing stigma and xenophobia and implement public health responses inclusive of all marginalized groups (see, in particular, the International Convention on the Elimination of All Forms of Racial Discrimination Arts. 1.1, 2, 4; CERD Committee General Recommendation No. 30; and 1951 Refugee Convention, Art. 3).

Detention

Detention is a practical impediment to the implementation of the right to asylum. The UNHCR guidelines on the issue establish that a period of confinement may be imposed legitimately as a preventive measure in the event of a pandemic but that such confinement should be limited to its purpose and cease as soon as the necessary testing or treatment is complete. Detention must always be an exceptional measure of last resort and conducted in accordance with the principles of legality, necessity, and proportionality. Alternatives to detention should be considered, including regular reporting requirements, particularly when vulnerable groups are concerned. Human Rights Watch recently reported the arbitrary detention of nearly 2,000 migrants and asylum-seekers in Greece – including vulnerable groups like children, persons with disabilities, and pregnant women.

Detention constitutes a significant risk factor for contagious spread during a pandemic. Such detained people are highly vulnerable to the spread of COVID-19 mostly due to the inadequacy of detention conditions, overcrowding, limited supplies for personal cleaning, limited personal protective equipment such as masks and gloves, and poor access to health care. Detention of displaced persons is not permissible when such detentions pose serious threats to their health and life due to COVID-19. In addition to the adverse risks and impacts to the right to life and health, COVID-19 causes risk of indefinite detention as these people are neither admitted nor provided the option to return due to border closures.

Conclusion

Amidst a global pandemic, adhering to basic principles of international law vis-à-vis asylum seekers and refugees is vital. States cannot impose blanket measures banning asylum seekers and refugees from seeking and enjoying international protection and relevant considerations pertaining to immigration detention that are altogether key to the reinforcement of the right to seek and enjoy asylum. These principles impose clear obligations on States that they cannot simply choose to ignore during health emergencies – even global pandemics.

*This article reflects the personal views of the author and should not be attributed to the World Bank.

Tanzania Withdraws Jurisdiction from the African Court. What recourse remains for Tanzanians?

(photo credit)

On November 21, 2019, Tanzania withdrew from Article 34(6) of the African Charter’s Protocol: the provision by which States accept the competence of the African Court on Human and Peoples’ Rights to receive cases from individuals and NGOs. Tanzania is only the second State—after Rwanda—to withdraw from Article 34(6). When Rwanda made its Article 34(6) withdrawal in 2016, the African Court mandated a notice period of one year for withdrawals and declared that the withdrawal would have no legal effect on cases pending before the Court.

Applying the Rwandan precedent to Tanzania’s withdrawal suggests that Tanzanians can only continue to file before the Court until the one-year notice period expires, on November 20, 2020. This change is significant, as individuals comprise the overwhelming majority of applications to the African Court.

Despite the closure of this important avenue for Tanzanians seeking remedies for human rights violations, there are other avenues through which Tanzanians can bring their claims. The African Commission on Human and Peoples’ Rights and the UN Treaty Bodies provide two such avenues.

A. The African Commission on Human and Peoples’ Rights

The African Commission is a quasi-judicial body tasked with the interpretation of the African Charter. Distinct from the African Court, the Commission can hear complaints against States Parties to the African Charter, including Tanzania.

The Commission presents a viable alternative to filing with the Court in several ways. By turning to the Commission, Tanzanian applicants can continue to build jurisprudence in the African continent and pursue Tanzania’s compliance with its human rights obligations under the African Charter. Successful petitions enshrine human rights norms in Tanzania, as well as in all States Parties to the African Charter, and applicants can secure reparations for the harms they have suffered.

Additionally, the Commission has shown interest in ruling on human rights claims in Tanzania, despite Tanzania’s withdrawal. On November 22, 2019, just a day after Tanzania’s withdrawal, the Commission published a statement to Tanzania strongly urging its government to guarantee a range of public freedoms and to protect human rights activists. Tanzania’s withdrawal may only serve to heighten the Commission’s interest in the State’s human rights compliance.

Although the Commission can begin to fill the gap left by Tanzania’s withdrawal for individuals who have suffered human rights abuses, it is not a replacement for the Court. First, the Commission faces a severe backlog in cases: in June 2019, the Commission had 240 cases pending. If Tanzanians seek redress before the Commission in the same numbers as they did before the Court, they can expect to see prolonged delays in having their petitions heard.

Second, Tanzanian applicants may not always see favourable decisions from the Commission enforced at state level. Tanzania is required to submit biannual reports to the African Commission on its human rights compliance, but Tanzania has only submitted two such reports: one in 1992 and another in 2008. Because of this lack of data, as well as the minimal formal policy guiding these state-reporting measures, it is difficult for the Commission to monitor whether Tanzania is implementing its decisions and recommendations. Moreover, Tanzania does not appear to have enforced the one decision on the merits that the Commission decided against Tanzania.

Despite these complications, the African Commission can fill some of the gap that Tanzania’s withdrawal from the African Court will leave post-November.

B. UN Human Rights Bodies

The UN Treaty Bodies can also hear human rights claims against Tanzania.

Two of the UN Treaty Bodies have jurisdiction over Individual Complaints filed against Tanzania: the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) and the Committee on the Rights of Persons with Disabilities (CRPD Committee). Tanzania ratified the Optional Protocol to the CEDAW in 2006 and the Optional Protocol to the CRPD in 2009, thus recognising the competence of both bodies to consider communications against Tanzania.  

Where claims allege a violation of either the CEDAW or the CRPD, Tanzanians may consider bringing an Individual Complaint to CEDAW or CRPD Committees, respectively. Though the Treaty Bodies present a wholly different forum for complaints than the regional human rights tribunals of the African Court and Commission, they go a long way to filling the gap left by Tanzania’s withdrawal.

The longevity and strength of the UN Treaty Bodies lends their judgments gravity and impact. Jurisprudence from both the CEDAW and CRPD Committees shines a light on, and seeks to remedy, human rights violations the world over. Tanzanian lawyers and activists bringing complaints before these Committees can use the international respect and clout of these bodies to their advantage, to build awareness of human rights issues in Tanzania and to support their in-country efforts.

Importantly, Tanzania generally complies with its administrative obligations under both the CEDAW and CRPD by submitting its periodic reports. Neither Committee has heard many Individual Complaints against Tanzania, though, which makes analysing the likelihood of their enforcement difficult. The CEDAW Committee has heard one Individual Complaint against Tanzania, following which Tanzania implemented some—but not all—of the Committee’s recommendations. The CRPD Committee has heard two complaints against Tanzania, with similarly mixed results. Though Tanzania’s limited track record on enforcement may raise questions about the utility of bringing claims to the Treaty Bodies after November 2020, it does not diminish the utility of the UN as way forward for Tanzanians who have suffered human rights abuses.

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From November 20, 2020, Tanzanian individuals and NGOs will be deprived of an important avenue through which to bring human rights claims. It is clear, though, that Tanzania’s withdrawal does not doom all human rights claims against the state. Individuals and NGOs must turn to alternative forums to fill the gap left by Tanzania’s withdrawal.

Meanwhile, international groups should recognise the critical work being done by domestic advocates to raise awareness of these changes within Tanzania.

How the 2020 Guinean Elections Might Impact Justice for the 28 September 2009 Massacre. (Part 2)

This blogpost is the continuation of “How the 2020 Guinean Elections Might Impact Justice for the 28 September 2009 Massacre. (Part 1)“, posted yesterday morning.

3. Civil society member Asmaou Diallo expressed skepticism about the eventuality of a trial in June 2020

Asmaou Diallo, a Guinean civil society member who lost her son in the 28 September 2009 Massacre, has been working tirelessly since 5 October 2009 with her local association “Association des Victimes, Parents et Amis du 28 Septembre” to achieve justice. She explained that victims need medical and psychological treatment: many raped women at the stadium have contracted HIV and other life-threatening diseases, and a lot of victims also cruelly lack the necessary support to heal from this traumatic experience. 

Considering the current national political agenda, Ms. Diallo expressed doubts that a trial in 2020 would effectively deliver justice to victims. In the past, Guinea has consistently been falling into cycles of violence and impunity, and since October 2019, violence in the streets has increased. Further, as President Alpha Condé wants to amend the Constitution to stay in power, Ms. Diallo fears that another 28 September massacre might occur.

In Ms. Diallo’s view, the trial will not take place in 2020. Since accused officials continue to hold positions of power and victims remain unprotected, she argued that the government most likely will hinder any possibility for justice to be delivered. 

4. Franco Matillana, from the ICC OTP, expressed trust towards the Guinean justice system

Last but not least, Franco Matillana outlined the ongoing ICC proceedings with respect to the situation in Guinea. As mentioned above, the OTP opened a preliminary examination more than 10 years ago, in October 2009. In its 2019 Report on Preliminary Examination Activities, the OTP concluded that there was a reasonable basis to believe that crimes against humanity pursuant to article 7 of the Rome Statute had been committed in the national stadium on 28 September 2009 and in the immediate aftermath. More precisely, it mentioned murder under article 7(1)(a), imprisonment or other severe deprivation of liberty under article 7(1)(e), torture under article 7(1)(f), rape and other forms of sexual violence under article 7(1)(g), persecution under article 7(1)(h), and enforced disappearance of persons under article 7(1)(i).

Currently, the preliminary examination is at phase 3, which means that the OTP is assessing the admissibility of this situation, notably in the light of the complementarity principle. This principle entails that national authorities are primarily responsible of delivering justice at the national level (article 1 of the Rome Statute). That said, even though the perspective of a trial in June 2020 means that many steps have yet to be completed within a short period of time, including the construction of the new courtroom in Conakry and the training of the magistrates, Franco Matillana expressed trust towards the Guinean authorities. According to him, a real and genuine cooperation exists between the ICC and Guinean national authorities. Mr. Matillana reminded that setting and announcing publicly a precise date for the trial is a good sign, as it showcases the commitment of the Guinean government to deliver justice. 

5. Concluding remarks 

            Justice and accountability for the 28 September Massacre are far from certain. The perspectives shared by all panelists at the side event suggest that the decisions and actions taken by Guinean authorities are likely to have a decisive impact on the foreseeable future. It must be emphasized that the Guinean presidential elections’ agenda is concerning: Guineans do not want the current President Alpha Condé to amend the Constitution to allow him to run for a 3rd term, and civil society groups are regularly demonstrating in the streets. In this context, Ms. Diallo’s fear of another 28 September Massacre seem well-founded. In any case, the fight for justice for the 28 September Massacre should not be side-tracked by the upcoming elections. It is a high time for the international community to wake up and take concrete action to pressure the Guinean government to ensure justice and accountability for victims of international crimes in Guinea.

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This blogpost and the author’s attendance to the 18th Assembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

How the 2020 Guinean Elections Might Impact Justice for the 28 September 2009 Massacre. (Part 1)

On the third day of the 18th Assembly of States Parties (ASP) to the International Criminal Court (ICC), held in The Hague from 2 to 7 December 2019, a side event named “Guinea: A decade after, victims of the 2019 massacre are still waiting for justice” took place. It was co-organized by the International Federation for Human Rights (FIDH) and the Guinean civil society organizations Organisation guinéenne de défense des droits de l’homme et du citoyenMêmes droits pour tous and the Association des victimes, parents et amis du 11 septembre 2009. Moderated by Delphine Carlens, Head of the International Justice section at FIDH, the event featured panelists Drissa Traoré, FIDH Under-Secretary; Asmaou Diallo, President of the Association of Victims, Parents and Friends of the September 28 Massacre; and Franco Matillana, from the ICC’s Office of the Prosecutor (OTP). As panelists shared their views on the prospects for justice for the September 2009 Massacre in Guinea, this blog post will elaborate on the key aspects of this enriching discussion. Specifically, it will summarize the context of the September 2009 Massacre, before turning to explore the ongoing judicial proceedings within the Guinean domestic legal system, victims’ perceptions of these proceedings, and the ongoing ICC preliminary examination.

Flyer of the event co-organized by the FIDH and Guinean civil society organizations, held in The Hague on 4 December 2019. 

1. What happened in Guinea on 28 September 2009?

On 14 October 2009, the ICC OTP announced the opening of a preliminary examination with respect to the situation in Guinea. It stated that this “preliminary examination focusses on alleged Rome Statute crimes committed in the context of the 28 September 2009 events at the Conakry stadium.” As Guinea is a State Party to the Rome Statute, having deposited its instrument of ratification on 14 July 2003, the OTP announced that it would investigate international crimes committed on the territory of Guinea or by Guinean nationals from 1 October 2003 onwards (Rome Statute, article 11). 

 The contextual background of the September 2009 Massacre is described in the subsequent OTP Reports on Preliminary Examination Activities (see e.g the 2019 report here). In December 2008, after the death of President Lansana Conté, who had ruled Guinea since 1984, Captain Moussa Dadis Camara seized power in a military coup. As the new head of State, he established a military junta, the Conseil national pour la démocratie et le développement (CNDD, orNational Council for Democracy and Development), and promised that this body would ensure that power is handed to a civilian president following presidential and parliamentary elections. However, as time went by, Captain Camara’s attitude and statements seemed to suggest that he might actually run for president, which led to protests by its political opponents and civil society groups. 

On 28 September 2009, the Independence Day of Guinea, an opposition group gathering at the national stadium in Conakry was violently repressed by national security forces. According to Human Rights Watch, they opened fire on civilians that were peacefully calling for transparent elections. Some civilians were shot, beaten, and even raped in daylight. According to the OTP’s 2019 Report on Preliminary Examination Activities, more than 150 people died or disappeared, at least 109 women were victims of rape and other forms of sexual violence, including sexual mutilations and sexual slavery, and more than 1000 persons were injured. Cases of torture and cruel, inhuman or degrading treatment during arrests, arbitrary detentions, and attacks against civilians based on their perceived ethnic or political affiliation are also mentioned in the 2019 OTP Report.

Ten years after the massacre, are Guinean victims any closer to see their tormentors be held accountable? One after the other, panelists at the ASP side event shared their points of view. 

2. Drissa Traoré, FIDH Under-Secretary, depicted the judicial landscape and pointed key issues

At the ASP side event, FIDH Under-Secretary Drissa Traoré critically depicted the ongoing judicial proceedings taking place within the Guinean domestic legal system with respect to the 28 September massacre. In February 2010, the case was referred by Guinean Prosecutors to a group of magistrates, before whom it progressed slowly amid political, financial, and logistical obstacles. Despite being charged, many senior officials remained in office. During the investigation, judges have heard the testimony of 450 victims and their their family members. The judicial process was still ongoing when, in 2018, the Minister of Justice Cheick Sako set up a steering committee tasked with the practical organization of the trial. Conakry’s Court of Appeal was identified as the final location for the trial. However, Minister Sako resigned from his position as Minister of Justice in May 2019, causing further delays in the organization of the trial.

In 2019, the newly appointed Minister of Justice, Mohamed Lamine Fofana, decided to reform the steering committee: even though this committee was supposed to meet once a week, in practice, it had met only intermittently. Mr. Fofana also announced that the trial would take place in June 2020, and the government decided to build a new courtroom for this trial to be held. Drissa Traoré stressed that the construction of this courtroom could be a pretext to delay the trial once again. At the time of the ASP, in December 2019, the construction had not begun, and the judges presiding over the trial had yet to be appointed and trained for a such a trial. 

To Drissa Traoré, it is imperative that the charged civil servants who remain in office be dismissed from their positions before the beginning of the trial. He also emphasized the necessity for victims and witnesses to be protected from and any undue pressure that could be exerted against them. 

Mr. Traoré also highlighted that the sociopolitical context in Guinea is currently strained. Guinean presidential elections will take place in 2020, and demonstrations are regularly taking place, accompanied by daily arrests and deaths. To Mr. Traoré, it is crucial that this trial takes place, as it would send a message that impunity for grave crimes is not tolerated in Guinea. 

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You can read the second part of the blogpost here:  How the 2020 Guinean Elections Might Impact Justice for the 28 September 2009 Massacre. (Part 2)

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This blogpost and the author’s attendance to the 18th Assembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

Why COVID-19 is a Crisis for Digital Rights

Adam Nieścioruk on Unsplash: Street art — graffiti with facial mask on the wall during the current Coronavirus (COVID-19) pandemic in Warsaw, Poland

The COVID-19 pandemic has triggered an equally urgent digital rights crisis.

New measures being hurried in to curb the spread of the virus, from “biosurveillance” and online tracking to censorship, are potentially as world-changing as the disease itself. These changes aren’t necessarily temporary, either: once in place, many of them can’t be undone.

That’s why activists, civil society and the courts must carefully scrutinise questionable new measures, and make sure that – even amid a global panic – states are complying with international human rights law.

Human rights watchdog Amnesty International recently commented that human rights restrictions are spreading almost as quickly as coronavirus itself. Indeed, the fast-paced nature of the pandemic response has empowered governments to rush through new policies with little to no legal  oversight.

There has already been a widespread absence of transparency and regulation when it comes to the rollout of these emergency measures, with many falling far short of international human rights standards.

Tensions between protecting public health and upholding people’s basic rights and liberties are rising. While it is of course necessary to put in place safeguards to slow the spread of the virus, it’s absolutely vital that these measures are balanced and proportionate.

Unfortunately, this isn’t always proving to be the case.

The Rise of Biosurveillance

A panopticon world on a scale never seen before is quickly materialising.

“Biosurveillance” which involves the tracking of people’s movements, communications and health data has already become a buzzword, used to describe certain worrying measures being deployed to contain the virus.

A panopticon world on a scale never seen before is quickly materialising

The means by which states, often aided by private companies, are monitoring their citizens are increasingly extensive: phone data, CCTV footage, temperature checkpoints, airline and railway bookings, credit card information, online shopping records, social media data, facial recognition, and sometimes even drones.

Private companies are exploiting the situation and offering rights-abusing products to states, purportedly to help them manage the impact of the pandemic. One Israeli spyware firm has developed a product it claims can track the spread of coronavirus by analysing two weeks’ worth of data from people’s personal phones, and subsequently matching it up with data about citizens’ movements obtained from national phone companies.

In some instances, citizens can also track each other’s movements leading to not only vertical, but also horizontal sharing of sensitive medical data.

Not only are many of these measures unnecessary and disproportionately intrusive, they also give rise to secondary questions, such as: how secure is our data? How long will it be kept for? Is there transparency around how it is obtained and processed? Is it being shared or repurposed, and if so, with who?

Censorship and Misinformation

Censorship is becoming rife, with many arguing that a “censorship pandemic” is surging in step with COVID-19.

Oppressive regimes are rapidly adopting “fake news” laws. This is ostensibly to curb the spread of misinformation about the virus, but in practice, this legislation is often used to crack down on dissenting voices or otherwise suppress free speech. In Cambodia, for example, there have already been at least 17 arrests of people for sharing information about coronavirus.

Oppressive regimes are rapidly adopting “fake news” laws

At the same time, many states have themselves been accused of fuelling disinformation to their citizens to create confusion, or are arresting those who express criticism of the government’s response.

As well as this, some states have restricted free access to information on the virus, either by blocking access to health apps, or cutting off access to the internet altogether.

An all-seeing, prisonlike panopticon
I, Friman, Wikipedia: Inside one of the prison buildings at Presidio Modelo, Isla de la Juventud, Cuba

AI, Inequality and Control

The deployment of AI can have consequences for human rights at the best of times, but now, it’s regularly being adopted with minimal oversight and regulation.

AI and other automated learning technology are the foundation for many surveillance and social control tools. Because of the pandemic, it is being increasingly relied upon to fight misinformation online and process the huge increase in applications for emergency social protection which are, naturally, more urgent than ever.

Prior to the COVID-19 outbreak, the digital rights field had consistently warned about the human rights implications of these inscrutable “black boxes”, including their biased and discriminatory effects. The adoption of such technologies without proper oversight or consultation should be resisted and challenged through the courts, not least because of their potential to exacerbate the inequalities already experienced by those hardest hit by the pandemic.

Eroding Human Rights

Many of the human rights-violating measures that have been adopted to date are taken outside the framework of proper derogations from applicable human rights instruments, which would ensure that emergency measures are temporary, limited and supervised.

Legislation is being adopted by decree, without clear time limitations

Legislation is being adopted by decree, without clear time limitations, and technology is being deployed in a context where clear rules and regulations are absent.

This is of great concern for two main reasons.

First, this type of “legislating through the back door” of measures that are not necessarily temporary avoids going through a proper democratic process of oversight and checks and balances, resulting in de facto authoritarian rule.

Second, if left unchecked and unchallenged, this could set a highly dangerous precedent for the future. This is the first pandemic we are experiencing at this scale – we are currently writing the playbook for global crises to come.

If it becomes clear that governments can use a global health emergency to instate human rights infringing measures without being challenged or without having to reverse these measures, making them permanent instead of temporary, we will essentially be handing over a blank cheque to authoritarian regimes to wait until the next pandemic to impose whatever measures they want.

We are currently writing the playbook for global crises to come

Therefore, any and all measures that are not strictly necessary, sufficiently narrow in scope, and of a clearly defined temporary nature, need to be challenged as a matter of urgency. If they are not, we will not be able to push back on a certain path towards a dystopian surveillance state.

Litigation: New Ways to Engage

In tandem with advocacy and policy efforts, we will need strategic litigation to challenge the most egregious measures through the court system. Going through the legislature alone will be too slow and, with public gatherings banned, public demonstrations will not be possible at scale.

The courts will need to adapt to the current situation – and are in the process of doing so – by offering new ways for litigants to engage. Courts are still hearing urgent matters and questions concerning fundamental rights and our democratic system will fall within that remit. This has already been demonstrated by the first cases requesting oversight to government surveillance in response to the pandemic.

These issues have never been more pressing, and it’s abundantly clear that action must be taken. The courts can be an important ally in safeguarding our digital rights, also in the current crisis, but we must give them the opportunity to play that role.

This blog has been cross-posted from the Digital Freedom Fund blog.

Webinar on Wed. 25 March: Human Rights and Public Policy Implications of the COVID-19 Pandemic

The Roosevelt House Public Policy Institute of Hunter College in New York City is holding a panel discussion via Zoom on Wednesday 25 March.  RSVP here so you can join the session when it starts.

 Responding to COVID-19: The Human Rights and Public Policy Implications of the Pandemic

Wednesday 25 March, 1:00-2:30 pm EDT (17:00 GMT – 18:30 GMT)

 With the increasing numbers of confirmed new cases of COVID-19, countries face tremendous challenges and very difficult decisions. Restrictions on freedom of movement and association in the interest of health security have been addressed differently in different countries, with differing results. Join us online for a timely virtual discussion addressing the urgent human rights and public policy implications of the global public health crisis.

Panelists:
Jamil Dakwar, Director of the Human Rights Program at the ACLU
Phelim Kine, Director of Research and Investigations at Physicians for Human Rights
Ram Raju, MD, Senior Vice President and Community Health Investment Officer, Northwell Health
Moderators:
Jessica Neuwirth, Rita E. Hauser Director of the Human Rights Program, Roosevelt House
Shyama Venkateswar, Director of the Public Policy Program, Roosevelt House

Click here to RSVP to this Zoom panel discussion.

ICC Assembly of States Parties Symposium: A Recap of Two Excellent Side Events

As a delegate of the Public International Law and Policy Group, I recently attended the 18th Assembly of States Parties (ASP) to the International Criminal Court (ICC).  In addition to general debates among states parties regarding issues such as funding, election of new judges, and the general well-being of the court, various interesting side events took place, sponsored by states and NGOs.  This post will briefly highlight two such side events – the first on The Hague Principles on Sexual Violence, and the second on Timing and Duration of Decision-Making at the ICC.

The first side event, “The Hague Principles on Sexual Violence – Translating the lived experience of sexual violence survivors into law and policy,” was sponsored by Women’s Initiative for Gender Justice (WIGJ) and by Argentina, Australia, Austria, Belgium, Canada, Chile, Costa Rica, Finland, France, Ireland, Luxembourg, New Zealand, Norway, the Republic of Korea, Romania, Senegal, Slovenia, South Africa, Sweden, Switzerland, the United Kingdom, and Uruguay.

The panel was moderated by Melinda Reed from WIGJ, and panelists included Fatou Bensouda, Prosecutor of the ICC, Patricia Sellers, Special Advisor on Gender to the Office of the Prosecutor, Toufah Jallow, Toufah Foundation, Wayne Jordash, Global Rights Compliance, and Howard Morrison, ICC Judge.  Opening remarks were delivered by the Swedish Director-General for Legal Affairs, H.E., Mr. Carl Magnus Nesser, and closing remarks were delivered by the Ambassador of Australia to the Netherlands, H.E. Mr. Matthew Neuhaus.  Prosecutor Bensouda briefly spoke about her office’s efforts in prosecuting sexual violence offenders, and she emphasized the importance of the Ntaganda case, and this defendant’s conviction for crimes of sexual violence.  Judge Morrison spoke about the difficulty of prosecuting and judging cases involving survivors of sexual violence, who may be unwilling to come forward and testify because of their culture and/or because of the inherent necessity of reliving the trauma which court testimony would entail.  Special Advisor Seller highlighted the importance of case law in understanding how to prosecute future crimes of sexual violence, and Wayne Jordash described some of the difficulties associated with the international prosecution of crimes of sexual violence, as well as the failure to prosecute sexual crimes in the Lubanga cases.  The most poignant moments of this panel, however, included remarks by Toufah Jallow, a young Gambian woman who recently came forward and accused the former Gambian president of rape and sexual violence.  Ms. Jallow, who presently lives in Canada, spoke candidly about the assault, violence, and rape which she suffered at the hands of the then-Gambian president, who, according to Ms. Jallow, used sexual violence against her in order to punish her because she had rejected his offer of employment.  Ms. Jallow emphasized the necessity to use concrete language when describing circumstances of sexual assault, as well as the need to overcome cultural barriers and speak out against rape and sexual assault.  Ms. Jallow described how her own mother, who still lives in the Gambia, presently needed security, and how her mother may still believe that “a good African woman is supposed to remain silent” – event if subjected to rape and sexual violence.  Ms. Jallow confirmed that she has already testified before the Gambian national truth commission, where she has repeated the same accusation against the former president.  Finally, Ms. Jallow urged everyone to consider survivors of sexual violence as activists, and not simply as victims.

Finally, several panelists spoke about The Hague Principles on Sexual Violence, which can be found here: https://4genderjustice.org/wp-content/uploads/2019/11/The-Hague-Principles-on-Sexual-Violence.pdf 

According to some of the panelists, these Principles will hopefully become an important tool in prosecuting crimes of sexual violence.

The second side event, “It’s about time – revising the timing and duration of decision-making at the ICC,” was sponsored by the Wayamo Foundation and Austria, Finland, Germany, the Netherlands, Norway, and the United Kingdom.  Speakers included Christian Wenaweser, Permanent Representative of Lichtenstein to the United Nations, Elizabeth Evenson, Associate Director, Human Rights Watch, Lorraine Smith Van Lin, Post-conflict justice advisor, REDRESS, Shehzad Charania, Director of the UK Attorney General’s Office and International Law Advisor to the Prime Minister’s Office, and Mark Kersten, Senior Consultant, Wayamo Foundation, as moderator.  Panelists addressed the ICC’s perceived inefficiency – the court’s seemingly long disposition of various investigations and cases.  The panelists acknowledged that the ICC has handled a relatively small number of cases since its inception, and that some investigations and cases have taken a long time.  At the same time, the panelists nuanced these remarks by noting that the court was an international adjudicative body with a wide mandate and complex cases, and that because of these unique characteristics, the ICC could not be easily compared to a domestic jurisdiction which may handle cases much more speedily.  The panelists also warned that efficiency should not trump due process rights and that cutting corners within investigations, for the sake of speeding up proceedings, would not be a desirable result.

In addition to the above-described events, this year’s ASP will feature dozens of equally fascinating side events and more general debate among states parties.  Stay tuned.

 

 

 

 

 

 

Rebuilding the master’s house instead of repairing the cracks: why “diversity and inclusion” in the digital rights field is not enough

Paul Sableman, CC BY 2.0

Silicon Valley is not the only sector with a “white guy” problem: civil society struggles with this as well. Oddly, it wasn’t until I looked at the group photo taken at the Digital Freedom Fund’s first strategy meeting that I noticed it: everyone in the photo except for me was white. I had just founded a new organisation supporting strategic litigation on digital rights in Europe and this had been our first field-wide strategic meeting, bringing together 32 key organisations working on this issue in the region. This was in 2018. In 2019, the number of participants had increased to 48, but the picture in the group photo still was pretty pale, with the team of my organisation accounting for 50% of the 4 exceptions to that colour palet. And while gender representation overall seemed fairly balanced, and there was a diverse range of nationalities present, some voices were noticeably absent from the room. For example, the overall impression of participants was that there was no one with a physical disability attending.* It was clear: something needed to change.

In all fairness, the participants themselves had clocked this as well –– the issue of decolonising the digital rights field had significant traction in the conversations taking place in the course of those two days in February. I have been trying to find good statistics on what is popularly referred to as “diversity and inclusion” (and sometimes as “diversity, equity and inclusion”; I have fallen into that trap myself in the past when speaking about technology’s ability to amplify society’s power structures), both in the human rights field more widely and the digital rights field specifically, but failed. Perhaps I was not looking in the right places; if so, please point me in the right direction. The situation is such, however, that one hardly needs statistics to conclude that something is seriously amiss in digital rights land. A look around just about any digital rights meeting in Europe will clearly demonstrate the dominance of white privilege, as does a scroll through the staff sections of digital rights organisations’ webpages. Admittedly, this is hardly a scientific method, but sometimes we need to call it as we see it. 

This is an image many of us are used to, and have internalised to such an extent that I, too, as a person who does not fit that picture, took some time to wake up to it. But it clearly does not reflect the composition of our societies. What this leaves us with, is a watchdog that inevitably will have too many blind spots to properly serve its function for all the communities it is supposed to look out for. To change that, focusing on “diversity and inclusion” is not enough. Rather than working on (token) representation, we need an intersectional approach that is ready to meet the challenges and threats to human rights in an increasingly digitising society. Challenges and threats that often disproportionately affect groups that are marginalised. Marginalisation is not a state of being, it is something that is done to others by those in power. Therefore, we need to change the field, its systems and its power structures. In other words: we need a decolonising process for the field and its power structures rather than a solution focused on “including” those with disabilities, from minority or indigenous groups, and the LGBTQI+ community in the existing ecosystem.

How do we do this? I don’t know. And I probably will never have a definitive answer to that question. What I do know, is that the solution will not likely come from the digital rights field alone. It is perhaps trite to refer to Audre Lorde’s statement on how “the master’s tools will never dismantle the master’s house” in this context, but if the current field had the answers and the willingness to deploy them, the field would look very different. Lorde’s words also have a lot to offer as a perspective on what we might gain from a decolonising process as opposed to “diversity and inclusion”. While the following quote focuses on the shortcomings of white feminism, it is a useful aide in helping us imagine what strengths a decolonised digital rights field might represent:    

“Advocating the mere tolerance of difference between women is the grossest reformism. It is a total denial of the creative function of difference in our lives. Difference must be not merely tolerated, but seen as a fund of necessary polarities between which our creativity can spark like a dialectic. … Only within that interdependency of different strengths, acknowledged and equal, can the power to seek new ways of being in the world generate, as well as the courage and sustenance to act where there are no charters.”

The task of re-imagining and then rebuilding a new house for the digital rights field is clearly enormous. As digital rights are human rights and permeate all aspects of society, the field does not exist in isolation. Therefore, its issues cannot be solved in isolation either –– there are many moving parts, many of which will be beyond our reach as an organisation to tackle alone (and not just because DFF’s current geographical remit is Europe). But we need to start somewhere, and we need to get the process started with urgency. If we begin working within our sphere of influence and encourage others to do the same in other spaces, to join or to complement efforts, together we might just get very far.

My hope is that, in this process, we can learn from and build on the knowledge of others who have gone before us. Calls to decolonise the academic curriculum in the United Kingdom are becoming increasingly louder, but are being met with resistance. Are there examples of settings in which a decolonising process has been successfully completed? In South Africa, the need to move away from the “able-bodied, hetero-normative, white” standard in the public interest legal services sector is referred to as “transformation“. And efforts to “radically re-imagine and re-design the internet” from Whose Knowledge center the knowledge of marginalised communities on the internet, looking at not only online resources such as Wikipedia, but also digital infrastructure, privacy, surveillance and security. What are the lessons we can learn from those efforts and processes?

This is an open invitation to join us on this journey. Be our critical friend: share your views, critiques and ideas with us. What are successful examples of decolonising processes in other fields that the digital rights field could draw on? What does a decolonised digital rights field look like and what can it achieve? Who will be crucial allies in having this succeed? How can we ensure that those currently being marginalised lead in this effort? Share your views, help us think about this better, so we might start working on a solution that can catalyse structural change.

This post was cross-posted from the Digital Freedom Fund blog

* As observation was the method used for this determination, it is difficult to comment on representation that is less visible than other categories such as religion, socioeconomic background, sexual orientation, etc.

The Failure to Protect International Law & Human Rights in the U.S.-China Trade Talks

Recent weeks have featured developments in yet another high-profile international crisis in the White House.  The Trump Administration has continued its negotiations with China in an effort to reach a long-awaited trade deal.  Yet, during round table discussions in May, White House officials willfully ignored the elephant in the room: China’s ongoing mass human rights violations and persecution of minorities.  Despite growing media coverage depicting China’s inhumane treatment of its minority Uighur Muslim population, the U.S. has steadfastly refused to take effective action to leverage its trade position to combat China’s violations of international law.  This simply marks the latest in the U.S.’s retreat from international law, closely following its bullying of the ICC into closing its investigation into Afghanistan.

Recent years have sparked increased persecution of the Uighurs, a largely Turkic-speaking Muslim minority based in Xinjiang, an autonomous region within China. China has targeted the Uighurs through its “Strike Hard Campaign against Violent Terrorism.”  Under the auspices of national security and counter-terrorism, the Chinese government has arbitrarily arrested large numbers of Uighur Muslims throughout Xinjiang, placing many in detention centers and prisons, and forcing others into hundreds of political “re-education” camps.  Many of the detainees are not charged with crimes and have been deprived of due process rights to challenge their detentions.  Pursuant to research by the Council on Foreign Relations, Uighurs detained in the re-education camps are forced to renounce Islam, learn Mandarin, and praise communism. Reports of forced self-criticism, psychological and physical beatings, and torture have also emerged from the camps.

To easily identify and monitor Uighurs, the Chinese government has implemented a mass surveillance system throughout Xinjiang and other Chinese provinces. China’s use of facial recognition software, police checkpoints, and cell phone monitoring has effectively turned Xinjiang into a surveillance state. China uses this surveillance to identify those in violation of restrictive laws against Uighur Muslims, including the banning of long beards and the use of Muslim names for newborn children.

While the exact number of Uighurs detained is unknown, officials within the Trump Administration have estimated that the figure falls between one and three million.  These conditions, disturbingly reminiscent of the concentration camps employed by Nazi Germany, have prompted widespread charges that China is actively engaging in ethnic cleansing.  In fact, China’s targeted attack on the Uighurs encompasses violations of various international human rights treaties to which China is a party, including the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Economic, Social and Cultural Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Moreover, China’s mass detention, torture, and enforced disappearances of Uighurs could constitute crimes against humanity or even genocide under international criminal law.

International human rights organizations, legal scholars, and state governments have vocally condemned China’s international crimes and human rights violations, yet minimal practical action has been taken against the Chinese government.  While calls have been made for the U.N. to commence an investigation into China’s treatment of the Uighurs, at this point, none has been ordered.  In fact, the practical impact of any potential investigation is uncertain.  In its role as a permanent member of the U.N. Security Council and a non-party to the Rome Statute, China enjoys a substantial level of protection against sanctions and ICC prosecution.  

The U.S. has been aware of China’s ongoing human rights violations for years.  Members of Congress have repeatedly requested that the Trump administration impose sanctions on high-ranking Chinese officials in response to growing evidence of Uighur mistreatment.  In a July 2018 op-ed, Secretary of State Mike Pompeo recognized China’s mass detention of Uighurs, while applauding the “Trump administration’s [passion for] promoting and defending international religious freedom.” Yet, while the U.S. government apparently considered issuing sanctions, it has failed to effectively act to halt China’s persecution of the Uighurs.

In early April, a group of 43 bipartisan member of Congress wrote to Secretary of State Mike Pompeo, Secretary of the Treasury Steven Mnuchin, and Secretary of Commerce Wilbur Ross, again formally requesting economic sanctions be imposed against China for its gross human rights violations against the Uighurs. Yet, despite growing publicized condemnation and concern, the current administration’s conduct indicates it will do little to bring China into compliance with international law.  The ongoing trade talks with China present the perfect opportunity for the current administration to call for China to end its persecution of the Uighurs under threat of sanctions.  Yet, as the New York Times reports, the U.S. has not raised the issue of China’s international crimes at any time during the trade talks, viewing it as a potential impediment to negotiations.  Instead, in mid-May, following failed U.S.-China round table trade talks, President Trump issued an executive order declaring a national economic emergency and empowering the U.S. government to ban the use of technology of “foreign adversaries” deemed to pose a risk to national security. Nearly immediately thereafter, the U.S. Department of Commerce placed Huawei Technologies, the company responsible for creating many of the surveillance tools used to monitor the Uighurs, on a “trade blacklist,” thereby greatly obstructing its ability to conduct business with U.S. companies.  Yet, in failing to publicly address China’s mistreatment of the Uighurs and Huawei’s complicity in the Uighur surveillance while taking such action, the Trump administration fell significantly short in defending international law and human rights.

As a world power and a permanent member of the U.N. Security Council, the U.S. bears responsibility to bring an end to China’s ongoing international crimes.  The Trump administration’s failure to effectively leverage its trade position to bring China into line with international law not only undermines the U.S. policy of promoting global freedom of race and religion, but also prioritizes its commitment to capitalism and financial profit at the expense of human rights. 

Safeguarding women after disasters: some progress, but not enough

Hundreds of Mozambicans were killed and thousands made homelessrecently by Cyclones Idai and Kenneth. Almost immediately, there were reports of a sadly familiar story: women being forced to trade sex for food by local community leaders distributing aid.

Globally, international organisations appear to be grappling with the issue more seriously than before. Yet reports about sexual exploitation keep coming. How does the aid community strategise to protect women’s safety in disaster situations?

Over the past 15 years, I have done research on sexual exploitation of displaced women in Uganda and Colombia. I have also worked with a variety of humanitarian organisations on accountability and legalisation. Through this, I have identified the factors necessary to bring justice to the victims of predatory aid workers.

Sexual exploitation must be recognised as a real and widespread problem. There must be staff and management accountability. Transgressions must be sanctioned through disciplinary or penal measures. But there are also major dilemmas that need to be understood and tackled by governments, agencies and, most importantly, local communities.

Sexual exploitation in aid

The sexual exploitation of disaster and conflict victims is a global – and longstanding – phenomenon. Over the last 25 years, there have been radical changes in the standards of global public morality around the conduct of personnel working for international organisations and NGOs when vulnerable adults and children are involved.

Nevertheless, the willingness to see sexual exploitation as an inherent feature of the international community’s intervention to bring development, humanitarian aid or peace has been much slower to evolve.

It was only 24 years ago that UNHCR issued guidelines on sexual violence and refugees that expressly mentioned international refugee workers as being implicated in sexual violence against refugees.

The sexual abuse of vulnerable women and girls in several African countries by international aid workers was recently described as “endemic”. It was also noted that perpetrators easily moved around the sector undetected.

Several recent cases have been reported from Cote d’ivore, to the Democratic Republic of the Congo, Namibia, Liberia, Sierra Leone, South Sudan and the Central African Republic.

These have involved aid workers and peacekeepers, as well as local aid workers and government employees.

In my research on refugees, accusations concerning “sex for resettlement” registration surface regularly. I found these to be frequent while working on refugee resettlement in Kampala 15 years ago. Despite the UNHCR’s promise to reform, similar accusations keep resurfacing, most recently in Kenya. The time has come for the international community to seriously debate the power mechanisms embedded in the resettlement process that enable sexual exploitation to fester.

What will fix the problem?

The first step is to organise accountability.

Humanitarian accountability first emerged as a concern in the 1980s. It was institutionalised in the 1994 Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief . The 1996 Joint Evaluation of Emergency Assistance to Rwanda was a defining moment.

That report resulted in several sector-wide initiatives. Five years ago efforts were made to streamline these in the revised Core Humanitarian Standards.

Throughout this period, sexual exploitation has been considered the worst possible behaviour humanitarian workers can be guilty of. But it has not been clear what constitutes exploitation and in which relationships it takes place. The lack of a definition, the unwillingness to articulate and enforce robust norms for professional behaviour and the absence of effective complaint mechanisms and protections for whistle-blowers have contributed to a culture of impunity for predatory behaviour against aid recipients.

Early policy responses to sexual exploitation were concerned with reputational issues. But over the past 15 years the humanitarian sector has seen a flurry of institutional initiatives to grapple with this specific issue. The effort to prevent sexual exploitation and abuse is led by the Inter-Agency Standing Committee.

The aid sector is now engaging in “safeguarding exercises”. These emerged after the Oxfam scandal in Haiti. The organisation was seen as failing to act on sexual misconduct by staff in the aftermath of the 2010 earthquake, and then to have attempted a cover-up.

Safeguarding includes all actions by aid actors to protect staff from harm (abuse, sexual harassment and violence) and to ensure staff do not harm beneficiaries.

This broad definition represents both a welcome recognition of the scope of the problem and an opportunity for a comprehensive approach. But it also creates some new challenges. Three are particularly worth noting.

The challenges

Who gets a voice: There has been vocal concern about the lack of inclusiveness in how safeguarding is practised. Critics have noted that a safeguarding industry was hatched with little attention to local and national context or participation. There is a view that safeguarding is yet another Western-centric practice. I think this critique is true. But it also creates a dilemma: should global norms about sexual exploitation in international aid be up for local negotiation?

Regulation and criminalisation. In recent years, there have been calls to regulate foreign aid actors more robustly. This is understandable. Aid actors have operated with a great deal of license and even impunity under the humanitarian banner. But drawing up new laws also creates problems. This is particularly true in a context where African civil society generally is under pressure from new restrictive laws that curtail their activities.

Responding to the call to “do something”, the international community has embraced criminalisation and criminal prosecutions to promote and strengthen the fight against impunity. But opting for criminal law and the courtroom rests on a deeply simplistic framing of structural power imbalances in aid. Legal strategies are costly and slow. The focus on sexual violence in disasters and conflicts also risks crowding out concern for other aspects of women’s lives.

Localisation: Since 2016 there has been a significant focus on the localisation of aid. The Charter for Change focuses on contracting, resource allocation, transparency and communication. It highlights the importance of not undermining local capacity. The process is generally painfully slow and a shockingly small percentage of international aid funding is actually allocated to local actors.

At the same time, there is a persistent call for international actors to do, control and know more about what goes on locally to limit corruption, incompetence and abuse. This call comes partly from media in donor states addressing taxpayers, but also from watchdogs within the sector.

This is also the case for sexual exploitation. In its report, Human Rights Watch demands that “international partners, particularly the UN, should ensure greater oversight of the conduct of local officials during the distribution of humanitarian aid”. This will not come for free.

The question is how a balance can be found between control and localisation – and who gets to determine what this balance should be.

This post was originally published at https://theconversation.com/safeguarding-women-after-disasters-some-progress-but-not-enough-116619. For an extended critical commentary on the rapid rise of the Safeguarding concept in the aid sector, see https://jhumanitarianaction.springeropen.com/articles/10.1186/s41018-019-0051-1