31 January 2024

The Ambivalent Juridification of Humanitarian Space

While humanitarians remain sceptical of legal regulation, litigation, and lawyers, the sector is going through a process of juridification. This blog post takes stock of the ambivalence to law and emergent shifts in the sector and calls for international law scholars to pay more attention.

‘We have a toxic relationship with the law’ the aid worker at the end of the table exclaimed. It was mid-January 2024, and we were seated in a meeting room at the European Convention Center in Luxembourg. A large group of humanitarians from the Red Cross family, INGOs like MSF and World Vision, and UN organizations such as UNHCR, WFP, UNRWA, and IOM had gathered for the second instalment of the Symposium on Cybersecurity and Data Protection in Humanitarian Action. Hosted by the International Committee of the Red Cross DigitHarium, this symposium is shaping up to be an important event for the sector. In the roundtable I was attending, the focus inevitably turned to how the sector could give accountability more teeth in the context of digital risks and harms. From the participants’ statements, it was clear that legal regulations, lawyers, and litigation were not considered crucial for or even conducive to improving aid delivery.

Paradoxically, these are the actors that try to bring relief to Gaza. The corridors were buzzing about what the International Court of Justice – whose provisional measures were expected the day after – could deliver to potentially improve the situation and allow them to do their job. Yet, during the same roundtable, when an aid worker-turned-digital-rights-practitioner sang the praise of strategic impact litigation to provide redress for digital harm, the reception was cool.

This ambivalence to legal regulation can be found across humanitarian space. While the sector is grounded in international humanitarian law and has for decades struggled to improve accountability, legal procedures play limited roles in humanitarian governance. Towards the mid-2020s, the humanitarian sector grapples with new challenges as humanitarian aid has become contested globally, with unprecedented efforts to control humanitarian work. Yet, even where the organizations are specifically dedicated to legal protection, such as with UNHCR’s work on refugee status determination or the legal aid projects of the Norwegian Refugee Council, the organizations do not see law as intrinsic to their accountability objectives, or lawyers as necessary to run their multi-billion enterprises. As recently noted by aid worker Meg Sattler, given the precarious nature of humanitarian work,

it is no surprise that humanitarians have shied away from regulatory processes… But the absence of regulation sees us perpetuate the myth of humanitarianism as altruism when it is actually self-monitored against non-enforceable standards for which nobody is held accountable…a functioning healthcare system cannot exist without regulation and regulatory bodies. When there is negligence, people in high places lose their jobs. The humanitarian sector, whose self-described purpose is to save lives, has no such thing.

Part of this resistance is puzzling because it seems so self-defeating: last June, I listened to someone working with humanitarian innovation for a Nordic government complain about the lack of streamlined contracting practice in the humanitarian UN. As the ICRC event was ending, during a plenary, one of the rapporteurs reflected on how bad the sector was at procurement and the operational and financial costs this lack of capacity engendered. In an industry that perceives itself to be in crisis due to funding gaps, the failure to systematically address or even discuss this issue publicly is remarkable.

Nevertheless, despite the uneven and ambivalent approach to legal accountability, I argue that the sector is going through juridification. I suggest that we are seeing the emergence of the unwieldy body of the ‘law of humanitarian action’, an amalgam of international human rights law, international humanitarian law, refugee law, soft law on internal displacement, international disaster response law, and other soft law and technical legal frameworks. Together, these instruments increasingly regulate humanitarian access and service delivery, demarcate the rights and duties of aid providers and recipients, and sanction misconduct and failure at individual and systemic levels. As legal scholars (broadly defined), we need to think and talk about this a lot more.

Let me provide three examples:

The first example concerns the futureproofing of the sector through tech regulation. GDPR has fundamentally transformed the role and import of data protection and privacy in humanitarian programming. While UN organizations may leverage privileges and immunities to avoid reporting on cybersecurity incidents, the sector has generally embraced legislation on artificial intelligence. Despite – or perhaps because – the humanitarians have just spent a decade elaborating on humanitarian technology ethics, it is today broadly acknowledged that regulation of digital transformation is necessary in a sector where ethics frameworks do not go hand in hand with robust accountability mechanisms.

The second example is one where litigation is dragging the sector – kicking and screaming – into the present. In 2015, the Norwegian Refugee Council met Steve Dennis, a Canadian aid worker, in Oslo District Court to litigate the extent of their humanitarian duty of care. I have elsewhere told the story of how a 2012 kidnapping in the Dadaab refugee camp in Northern Kenya ended up in a Norwegian courtroom, how the NRC leadership publicly insisted that ‘refugees would suffer’ – globally! – if the organization was found responsible for labour law violations – and how the NRC was eventually found grossly negligent. While a Norwegian District Court verdict is of limited jurisprudential value, the impact has been significant, changing standards, expectations, and practice across the sector.

I will call the third example ‘miscellaneous’ to illustrate that there is a plethora of sprawling ‘law talk’ and legal innovation going on. At the ICRC symposium, a participant reflected on the potential of humanitarian arbitration (as different from emergency arbitration, which connotes urgency in regular settings) as a means of moving forward with certain intractable issues. ‘Yet,’ he mused, ‘arbitration is expensive.’ This points to an important explanatory factor: the optics of aid actors spending scarce funding on highly renumerated lawyers –in house or externally –is perceived as highly problematic. Yet, just as with the growing financial cost of cybersecurity, this might be an expense humanitarians will increasingly have to accept. A different issue concerns disputes around trademarking violations. These disputes have been around for a while, as illustrated by the case involving the pharmaceutical company Johnson & Johnson and the American Red Cross, or the regular complaints about misuses of the Red Cross emblem in the video game industry. As the sector continues to expand outside the Global North, and visibility becomes ever more crucial to survival and impact, we can expect organizations outside the Red Cross system to protect their brands more vigilantly. A further interesting topical issue pertains to humanitarian innovation and intellectual property: in a little-known case (I first found the information in a YouTube video), the ICRC decided to ensure impact and financial viability by patenting a prosthetic foot, a first for the organization. My argument here is that there is a lot going on but that a good systemic understanding is lacking.

In sum, while humanitarian actors remain hesitant and somewhat suspicious to legal regulation, the sector is going through a process of juridification: the law regulates more activities, is more often used to solve conflicts, and the legal profession is getting more involved in the nuts and bolts of humanitarian lawyering, beyond IHL work. Most importantly, individuals in crisis and aid workers increasingly see themselves as legal subjects – whether as workers, rights-holders, or customers. My objective in this blog is to encourage the humanitarians to deal with these developments more comprehensively. Moreover, among legal and socio-legal scholars, there is an almost complete lack of academic interest in this hybrid area of law. This also needs to change.

SUGGESTED CITATION  Sandvik, Kristin Bergtora: The Ambivalent Juridification of Humanitarian Space, VerfBlog, 2024/1/31, https://verfassungsblog.de/the-ambivalent-juridification-of-humanitarian-space/, DOI: 10.59704/386c282c5c6279bf.

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