2011 - Talking to Armed Groups (FMR)

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URBAN DISPLACEMENT 1Issue 37March 2011

FOR FREE DISTRIBUTION ONLY

Feature: Armed non-state actorsand displacement

plus a selection of articles on other

aspects of forced migration



M

ilitia, freedom ghters, rebels, terrorists,paramilitaries, revolutionaries, guerrillas, gangs,

quasi-state bodies... and many other labels. In thisissue of FMR we look at all of these, at actors denedas being armed and being ‘non-state’ – that is to say,without the full responsibilities and obligations of thestate. Some of these actors have ideological or politicalaims; some aspire to hold territory and overthrow agovernment; some could be called organised groups,and for others that would stretch the reality. Theirobjectives vary but all are in armed conict with thestate and/or with each other. Such actors, deliberately orotherwise, regularly cause the displacement of people.

By the rules of the modern world, states bear theresponsibility to treat all in their territory, including

displaced people, according to established rights.Even though states oen ignore these rights andtheir own responsibilities under international humanrights law, these rights and responsibilities still exist.It is not so clear, however, whether human rightsobligations are binding on non-state actors such asarmed groups even in cases where these actors exercisesignicant control over territory and population. Itis clear, however, that Additional Protocol II to theFourth Geneva Convention forbids the displacementof the civilian population for reasons related to theconict unless the security of the civilians involvedor imperative military reasons demand it.

Some of these armed non-state actors behaveresponsibly and humanely, at least some of the time.Others seem to have no regard for the damage,distress or deaths that they cause – and may actuallyuse displacement as a deliberate tactic – in pursuitof their goals of power, resources or justice. Thisissue of FMR looks at a variety of such actors, attheir behaviours and at eorts to bring them intoframeworks of responsibility and accountability.

Although their voices are heard through a number of thearticles, it was not possible to provide a more direct voicefor the actors in question. They are by denition outsidethe law and not easily accessible. This issue of FMR

focuses more on the consequences of their violence and

its eects on people, and suggests ways in which thesemight be mitigated. The articles included here reect theviews of civil society groups and individuals in regularcontact with non-state armed groups, of academics andgovernments, and of organisations that have years ofexperience in engaging – creatively and productively –with non-state armed groups. We have allowed theauthors of the art icles in this issue to use the terminologythat they feel is most appropriate; some authors refer tonon-state armed groups, some to armed non-state actors.

This issue also includes a range of articles discussingsubjects as varied as the labelling of migrants, solarenergy in camps, gang persecution, and scoring states’performance in respect of the rights of refugees.

This issue is online at hp:// www.fmreview.org/non-state/ and will be available in English, French,Spanish and Arabic.

All issues of FMR are freely available, and searchable,online at hp://www.fmreview.org.mags1.htm Weencourage you to post online or reproduce FMRarticles but please acknowledge the source (with a linkto our website) – and, preferably, let us know. And ifyour organisation has an online library of resourcesor listings of thematic links, we would be gratefulif you would add links to back issues of FMR.

Forthcoming issues of FMR

■■ FMR 38 will include a feature theme on technology

and communications. See the call for articlesat hp://www.fmreview.org/technology/

■■ FMR 39 will include a feature theme on being youngand forcibly displaced. See the call for articles athp://www.fmreview.org/young-and-out-of-place

Details of forthcoming issues can always be foundat hp://www.fmreview.org/forthcoming.htm

With our best wishes

Marion Couldrey & Maurice HersonEditors, Forced Migration Review

From the editors

We are very grateful to Greta Zeender of the Norwegian Refugee

Council’s Internal Displacement Monitoring Centre for her help,

advice and support on the feature theme of this issue.

We would like to thank those agencies that have generously provided

funding for this particular issue: the Inter-Agency Network for Education

in Emergencies (INEE), the Internal Displacement Monitoring Centre

(IDMC/NRC) and the Swiss Federal Department of Foreign Affairs.

Front cover image

We gave a lot of thought to the image for the front cover of this issue of FMR.

We did not want to have guns, nor did we want to either glorify or condemn

those who carry them through the image we carried. What we wanted to

focus on was the damage caused in people’s lives by armed confrontation.

Apollo Images/IRIN



2 From the editors

Armed non-state actors

4 Towards engagement, compliance and

accountability

Annyssa Bellal, Gilles Giacca andStuart Casey-Maslen

7 Talking to armed groups

Olivier Bangerter

10 Engaging armed non-state actors in mechanisms

for protection

Pauline Lacroix, Pascal Bongard and Chris Rush

13 ‘Catch me if you can!’ The Lord’s Resistance Army

Héloïse Ruaudel

15 Dilemmas of Burma in transition

Kim Jolliffe

17 The economic relationship of armed groups with

displaced populations

Josep Maria Royo Aspa

18 Privatising security and war

José L Gómez del Prado

20 The Colombian guerrilla, forced displacement

and return

David James Cantor

23 How to behave: advice from IDPs

Stine Finne Jakobsen

25 Community-led stabilisation in Somalia

Siris Hartkorn

27 Al-Shabaab’s responsibility to protect

civilians in Somalia

Allehone Mulugeta Abebe

29 Support for al-Shabaab through the diaspora

Mitchell Sipus

30 Militia in DRC speak about sexual violence

Jocelyn Kelly and Michael Vanrooyen

31 Drug cartels in Mexico

Jessica Keralis

32 Resisting displacement by the Taliban in Pakistan

Farhat Taj and Jacob Rothing

34 Sahwa’s role in protecting IDPs and returnees

in Iraq

Cherie Taraghi

36 The Kampala Convention and obligations

of armed groups

Katinka Ridderbos

37 Keeping schools open: education in conict

Alice Farmer

39 Darfur and the aws of Holder v HLP

Christopher Thornton

41 Dealing with non-state armed groups and

displacement: a state perspective

Espen Barth Eide

General articles

43 Walter Kälin on the outlook for IDPs

45 Global migration: in need of a

global response

Sergio Marchi

46 What’s in a label?

Jackie Pollock

48 Renewable energy in the camps of Tamil Nadu

Florina Benoit-Xavier

50 Gang persecution as grounds for asylum in the US

Gracye Cheng

52 Unaccompanied asylum-seeker children: awed

processes and protection gaps in the UK

Katia Bianchini

54 The road to recovery:

education in IDP communities

Amy S Rhoades

55 African refugees in Israel

Rebecca Furst-Nichols and Karen Jacobsen

57 Report cards on refugees’ rights

Bruce Forster

59 Refugee Studies Centre news and announcements

60 Facing facts

Forced Migration Review

(FMR) provides a forum for the

regular exchange of practical

experience, information and

ideas between researchers,

refugees and internallydisplaced people, and those who

work with them. It is published

in English, Arabic, Spanish and

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Centre of the Oxford Department

of International Development,

University of Oxford.

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experienced writer to write for FMR.

Email us with your suggestions,

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– and we will work with you to

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4 ARMED NON-STATE ACTORS

F M R 3 7

Some of the worst abuses againstindividuals occur in non-international armed conicts,in situations where one or morearmed non-state actors (ANSAs)ght against the state and/oragainst each other.1 How, and to

what extent, international law isformally binding on these actorsis still debated. While it is largelyuncontested that internationalhumanitarian law imposescertain obligations on ANSAs,the application of other bodies ofinternational law – particularlyhuman rights law – is controversial.

Either voluntary or forceddisplacement is frequently caused by violations of internationalhumanitarian law and of basic humanrights. Actions by ANSAs displacecivilians directly or indirectlythrough gender-based violence,enforced disappearances, summaryexecutions, torture, death threats,indiscriminate aacks on civiliansand civilian objects (i.e. all areas, buildings and infrastructure that arenot military objectives as dened by international humanitarian law),forced recruitment (particularlyof children) and forced labour. Inaddition, blocking relief supplies

and assistance and other suchacts (including deliberate aackson humanitarian personnel)impede access to food, healthservices and education.

Legal frameworkOrganised ANSAs – i.e. those thatmeet the criteria set by internationalhumanitarian law to be considereda party to an armed conict – are bound by international humanitarianlaw, including Common Article3 of the Geneva Conventions and1977 Additional Protocol II, bothof which apply specically to non-international armed conict. Forceddisplacement is generally prohibited by international humanitarian law.

More specically, the 1998 GuidingPrinciples on Internal Displacementinclude many references tointernational humanitarian lawnorms that are legally binding on both states and ANSAs. In addition,the recently-adopted African Union

Convention for the Protection andAssistance of Internally DisplacedPersons in Africa directly addressesthe behaviour of ANSAs.2

Despite these existing obligations,many diculties remain in seekingto ensure ANSA compliance withinternational norms. The reasonsfor lack of compliance are diverse:strategic arguments (the nature ofwarfare in internal armed conictsthat may lead to the use of tacticsthat violate international law, suchas launching aacks from withinthe civilian population); lack ofknowledge of applicable norms;and lack of ‘ownership’ over thesenorms. ‘Ownership’ here means thecapacity and willingness of actorsengaged in armed conict to set and/or take responsibility for the respectof norms intended to protect civiliansas well as other humanitariannorms applicable in armed conict.Indeed, since ANSAs are not entitledto ratify international treaties (as,

by denition, they are not a stateor other entity with the necessaryinternational legal personality),and are generally precluded fromparticipating as full members of atreaty draing body, they could –and sometimes do – argue that theyshould not be bound to respect rulesthat they have neither put forwardnor formally commied to. This beingsaid, there are reasons to believethat many ANSAs can be inuencedto beer respect internationallaw and humanitarian norms.

Incentives for complianceFirst, one should note that ANSAswhich pursue certain military andpolitical objectives are not wholly

indierent to respecting certaininternational norms. Positiveincentives for compliance oenquoted by members of ANSAsare the need for popular support(‘winning hearts and minds’), theself-image of the group, the group’sown norms, reciprocity, the needor desire to project a good nationalor international image, and familyties with the concerned population.

There are thus military, political,legal and humanitarian reasonswhy armed groups would wantto respect international norms.

The military argument forcompliance comprises elements of both reciprocity and strategic choices.Respect for norms by one party to theconict typically encourages respectfor norms by the other; conversely,abuses and violations commied by one party are normally met by asimilar response from the other party.Restraint will also ultimately helpto retain the support of the civilianpopulation. In terms of strategicchoices, focusing on aackinglegitimate military targets insteadof targeting the civilian populationmeans that an ANSA is more likelyto further its military objectives.ANSAs may thus come to understandthat certain means and methods ofwarfare are counterproductive orhave excessive humanitarian costs,which lead to a loss in support.

Political arguments for compliancecentre on the desire of manyANSAs, and/or the causes theymay espouse, to be recognised aslegitimate. Members of severalANSAs interviewed during ourresearch project said that, while theyunderstand political recognitionmay not be possible, the recognitionof an organised armed groupas a ‘party to the conict’ underinternational humanitarian law may be an important step in encouragingcompliance with internationalnorms. In addition, many ANSAsneed the support (human, material,nancial) of the ‘constituency’ on behalf of whom they claim to be

The UN and other international and regional organisations are increasinglytrying to hold armed non-state actors accountable at the internationallevel for violations of international norms.

Towards engagement,compliance and accountabilityAnnyssa Bellal, Gilles Giacca and Stuart Casey-Maslen



ARMED NON-STATE ACTORS 5

F M R 3 7

ghting. Some seek to overthrow theexisting government or at least toform part of a future administration.And, in certain cases, ANSAs maywish to be seen as more respectfulof international norms thanthe state that they are ghting.3 Finally, some armed groups aresensitive to the argument that

beer respect for norms applicablein armed conicts facilitatespeace eorts and strengthensthe chance of a lasting peace.

The legal arguments for complianceare primarily the avoidance ofinternational criminal sanctionand other coercive measures,such as arms embargoes, travel bans and freezing of assets. Fearof prosecution for internationalcrimes is a factor that inuencesthe behaviour of certain ANSAs orof senior individuals within them,4 including as a result of the principleof command responsibility.5 For instance, the use of forceddisplacement as a tactic and method

of warfare could qualify as a warcrime or a crime against humanity,thereby making its authors asindividuals criminally responsible.6 Eective command and control by an ANSA over its own ghtersis thus in the self-interest of thegroup’s senior ocials. In one case,a local commander of an ANSA

described to the authors how hekept records of the imposition ofinternal discipline in accordancewith the norms the group hadaccepted. He later used these recordsas evidence to defend himselfagainst allegations of war crimes.

Finally, the humanitarianarguments for compliance relateto the fundamental desire ofcertain ANSAs to respect humandignity. Such a desire should not beunderestimated and may allow foropportunities to go beyond actualinternational obligations and engageANSAs on respect for norms whichoer greater protection for civiliansthan that strictly demanded by

international law. Humanitarianagencies may in turn supportnding solutions to help the relevantactors to full the commitment tothe norm in question – for example, by providing reintegration andeducation programmes for childrenformerly associated with armedforces to facilitate their safe release.

Good practice in engagement

There has been considerableexperience gathered over the years by members of the internationalcommunity through engagingwith ANSAs on the protection ofcivilians in armed conict. Beloware some of the key lessons thatcan be drawn from this experienceand which may oer otheropportunities to enhance compliancewith international norms.

As a general remark, the rst stepto be taken by the internationalcommunity at large is to encouragedirect engagement with ANSAsto promote compliance with

In Muzbat, northern Darfur, ICRC provides rst-aid training sessions for ghters from the Sudanese Liberation Army and civilians from the village

area. It is also an opportunity to talk about the law of armed conicts and explain the basic principles of International Humanitarian Law.

I C

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F M R 3 7

international norms. Furthermore,organised ANSAs should berecognised as a party to conictunder international humanitarianlaw and indiscriminate labellingof groups as ‘terrorist’ should be avoided, as it runs counter toeorts to promote compliancewith humanitarian norms. Asformer ghters have stated to theresearchers, once listed “you arerejected” and “you have nothingto lose”. It should be stressed thatengagement with an ANSA doesnot constitute political recognitionor recognition of belligerencynor does it aect the status ofANSAs under international law(although some, especially states,

fear that engagement can conferon a ‘terrorist’ or ‘criminal’ groupa semblance of legitimacy). Indialogue with ANSAs, eortsshould be made to demonstrate the benet to the groups themselvesin complying with internationalnorms. Culturally appropriatelanguage and methods should beused to promote such compliance.7

Second, an important step inenhancing compliance withinternational norms is to ensure thatthe relevant ANSAs are aware oftheir obligations under internationallaw. In some cases, for example, suchgroups have not been aware of theprohibition on child recruitmentand the potential individualliability that can result fromviolation of applicable norms. Thoseengaged in promoting compliancecan do this by disseminatinginternational legal norms toANSA members; and ANSAs candisseminate them internally.

Indeed, once an ANSA is clear aboutits obligations and undertakings,it will need to ensure that this isreected in its practice – for example by ‘translating’ internationalnorms into codes of conduct togovern actions by the group. Allarmed groups should therefore beencouraged to adopt and respectsuch internal codes of conductin accordance with applicablenorms. There may be a need foroutside technical assistance inachieving this but it is importantto ensure that the relevant ANSAassumes the responsibility foradoption, dissemination andimplementation of applicable norms.

Engagement with an ANSA shouldtypically occur at the highestlevel within the group but mayalso demand engagement withinuential individuals outside thegroup. Engaging an ANSA at thehighest level may help to ensurethat a commitment is more likely to be honoured in practice. However,enhancing compliance is madesignicantly more challenging ifthe ANSA fragments into dierentfactions which might controldierent areas. In that regard,former members of other ANSAsmay be able to play a helpful rolein engagement. For example, aformer paramilitary involved inthe troubles in Northern Ireland

has become a credible interlocutorwith ANSAs around the world ashe understands the challenges andconsequences of involvement inarmed violence.8 It is also importantto consider whether ‘constituencies’and foreign patrons can help tosecure beer compliance with norms.

Finally, the experience ofinternational organisations andNGOs shows that monitoring isa critical element in promotingcompliance with norms. Thisinvolves identifying norms whoserespect needs to be specicallyenhanced and promoting successfulimplementation with relevantagreements or declarations.

In conclusion, there is a need to moveaway from traditional state-centredapproaches to international law toone that envisages direct applicationof international law to ANSAs.Direct engagement with ANSAsto encourage beer respect for

international norms can be a criticalcontribution to the mitigation of thesuering of civilian populationsin contemporary armed conict.

Annyssa Bellal (Annyssa.Bellal@

graduateinstitute.ch), Stuart

Casey-Maslen (Stuart.Maslen@

graduateinstitute.ch) and Gilles Giacca

(Gilles.Giacca@graduateinstitute.

ch) are researchers at the

Geneva Academy of International

Humanitarian Law and Human Rights

(http://www.adh-geneva.ch).

This article draws on research

conducted in collaboration with the

Swiss Department of Foreign Affairs

since 2009, as well as on the results

of workshops held in Geneva in 2010.

See: http://www.adh-geneva.ch/

policy-studies/ongoing/armed-non-

state-actors-and-protection-of-civilians

1. This paper denes ANSA as any armed group, distinctfrom and not operating under the control of the state

or states in which it carries out military operations, andwhich has political, religious or military objectives. Thusit does not usually cover private military companies orcriminal gangs.

2. See in particular Article 7 of the Conventionhp://tinyurl.com/AU-KampalaConvention

3. For example, many of the ANSAs that have signedGeneva Call’s Deed of Commitment whereby theyrenounce the use of anti-personnel mines have done so instates that are not party to the 1997 Anti-Personnel MineBan Convention.

4. Compliance with international norms will not, though,prevent their risk of prosecution under domestic criminallaw for taking up arms against the state.

5. “Command responsibility extends as high as anyocer in the chain of command who knows or hasreason to know that his subordinates are commiingwar crimes and failed to act to stop them.” hp: //www.crimesofwar.org/thebook/command-respon.html.

6. For example, many of the ANSAs that have signedGeneva Call’s Deed of Commitment whereby theyrenounce the use of anti-personnel mines have done so instates that are not party to the 1997 Anti-Personnel MineBan Convention.

7. Nonetheless, organisations that do engage withANSAs may fall foul of national legislation thatcriminalises material support to any entity designatedas terrorist. A recent US Supreme Court decision on thescope of activities with ANSAs listed as terrorist groupsthat could trigger criminal responsibility is one exampleof a worrying trend. Supreme Court of the United States,Holder, Aorney General, et al. v. Humanitarian LawProject et al., Decision of 21 June 2010. See also, ‘theSupreme Court Goes too far in the Name of FightingTerrorism’, Washington Post Editorial, 22 June 2010; and‘What Counts as Abeing Terrorists’, Editorial, New YorkTimes , 21 June 2010. See also article p39.

8. See presentation by Martin Snodden to the Swisspeace

Annual Conference 2009, Bern, 3 November 2009: ‘Rebelswith a Cause? Understanding and dealing with non-statearmed groups during and aer violent conicts’, author’snotes. See forthcoming report to be available athp://www.swisspeace.ch.

Global database of states,territories and non-state actors

The Rule of Law in Armed Conicts

(RULAC) Project is an initiative of the

Geneva Academy of International

Humanitarian Law and Human

Rights to support the application

and implementation of internationallaw in armed conict. Through its

global database, the Project reports

on states and disputed territories

around the world, addressing both

the legal norms that apply as well

as the extent to which they are

respected by the relevant actors.

To search the database, go to

http://www.adh-geneva.ch/RULAC/

and enter state/territory name in

‘Access to global territory by state

or territory’ box. Use the left-hand

column to search for informationon, for example, non-state actors

operating there, current conicts, and

international legislation compliance.




F M R 3 7

Forced displacement can be lawfulunder international humanitarianlaw (IHL) if it makes a communitysafer or if imperative militaryreasons require it. However, inmost cases people leave theirhomes because one or both sides toa conict has been violating IHL.When a community experiences

or fears murder, rape, kidnapping,destruction of their homes orlooting, ight is a natural reaction.

All parties to an armed conict –including armed groups – can eitherprevent or facilitate the perpetrationof IHL violations that aectcivilians in general and displacedcommunities in particular. It is byno means the case that the highestlevels of violations are alwaysperpetrated by armed groups butwhen armed groups’ actions dofacilitate violations, they usuallystem from group decisions ratherthan personal initiatives. Beyondtheir potential for violations, armedgroups also have the potential toprotect residents and displaced alike.

Helping the victims of IHLviolations is essential but it isequally important to act ahead of

time to try to prevent violations thatwill trigger displacement or causefurther suering to people who arealready vulnerable. A number ofhumanitarian organisations seek toprevent such violations when theytalk to members of armed groupsabout the need to protect displacedpersons and civilians in general. But

how can we ensure that this kind ofdialogue achieves the desired result?

The dynamics of violationsIf one is to inuence paerns ofviolations that aect displacedpeople, rather than simply preventindividual incidents, one mustunderstand how and why suchpaerns arise. Violations of IHLinvolve social and individualprocesses and require a degreeof moral disengagement. Thesephenomena become possiblewhen groups and individualsnd ways of justifying behaviourthat they would previously haveconsidered unacceptable and when,at the same time, their leadersabdicate their responsibilities.More specically, the leadershipof an armed group may condoneor order violations of the rules ofwarfare, or allow them to occur.

A group generally allows violationsto occur when its command andcontrol system is weak. Reasons whythis can occur include small unitsoperating in isolation, ghters underthe inuence of drugs, and unclearorders. Alternatively – or in addition– the perpetrators of violations mayquite simply not know the law. Whileignorance of the law is no defence inlegal terms, we must recognise thatit is sometimes a genuine reason.

A group condones violations when

its leadership knows that its ghtersare violating the rules of war butdoes nothing to prevent such actsor punish the perpetrators. Thismay happen because the leadershipis afraid that ghters will defectto another, less scrupulous factionif it acts to prevent or punishviolations. Leaders may also condoneviolations as an explicit means ofrewarding or paying ghters, orwhen such actions are deemedacceptable in a given culture, asmay be the case with looting.

A group may commit violations as amethod of warfare. This can happenwhen ghters believe their survival to be at stake, when their actual aim isin itself a war crime such as genocide,when they make the strategic choiceto protect their own ghters at allcosts or when they use violenceor terror to control populations orterritory. A group may also commitviolations as a show of force or inretaliation, and as a means of passing

a powerful message to the enemy.

Armed groups cover a widespectrum. While some may be lilemore than mobs brought together by circumstances, others controltens of thousands of ghters.Many armed groups administersubstantial nancial resources –they can oen outspend NGOs– and their leaders may be highlyeducated. Because armed groupsare structured organisations, theyare capable of taking decisionswhich aect the behaviour of theirmembers, who are under pressureto conform and to follow orders.However imperfect or weak theseorganisations may be, they have

To persuade ghters to respect the rules of warfare, one must understandwhy violations occur, how armed groups operate, what can be done toprevent violations and how to engage in dialogue with these groups. Thisarticle reects the ICRC’s many years of experience in this area.

Talking to armed groupsOlivier Bangerter

A Geneva Call fact-nding team investigating allegations of mine use in the Philippines

in a meeting with representatives of the Moro Islamic Liberation Front.

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more power over their ghters thanany humanitarian worker has.

Limiting violationsArmed groups adopt political andpolicy measures. Some of thesedecisions can help to preventdisplacement, reduce the durationof displacement if it occurs, orreduce the incidence of otherviolations against communities.

Political measures at the group’shighest level, together with policydecisions on doctrine, education,training and sanctions, are likely tohave a signicant impact, as they canmake violations more or less likely.But even if the senior leadershiptakes the ‘right’ decisions, this willnot necessarily bring violations to a

complete halt, as individual ghtersand commanders retain a measureof independence. No decision willmagically prevent people joiningan armed group in order to ll theirpockets, nor will it prevent thosewith psychological problems fromcommiing violations. However,decisions and orders from thehighest levels of an armed group willinuence the behaviour of the vastmajority of commanders and ghters.

The most common approach topreventing violations is to demandthat all ghters respect a code ofconduct seing out the rules thatthe leaders consider essential. Themost famous example is the Chinese

Maoist Three Rules and EightRemarks, oen used by other like-minded movements. This documentexpressly forbids looting and thefrom the population, extortion,ill-treatment of the population,sexual violence against womenand ill-treatment of captives.

Another example is that of theMouvement des Nigériens pourla Justice (MNJ). During the2007-09 Niger conict, all MNJrecruits were required to swearan oath on the Qur’an that includednot harming civilians or damagingtheir possessions.

There are real opportunities forhumanitarians to have a positiveimpact on such measures by

persuading armed groups to adoptpolicies that are compatible withinternationally recognised standards.

How to persuadeSome years ago, in the Republic ofthe Congo, an ICRC delegate gave anIHL lecture to a group of militiamen.One of the points he made wasabout the importance of not looting.The group responded positivelyto the presentation – but the nextweek, these same people looted theaid that ICRC had distributed.

What went wrong? Manyhumanitarians have discovered totheir dismay that merely explainingIHL or taking the moral high ground

does not necessarily make partiesto a conict ‘see the light’ andchange their ways. Telling decision-makers and commanders aboutlegal standards is essential but onemust back this up with persuasivearguments that show such standardsto be relevant to the persons able totake decisions and give orders. This isespecially true given the perceptionamong many commanders thatIHL is “law dened by states andviolated by the same” (comment bya commander to the author in 2009).

As in most organisations, the armedgroup does limit the individual’sindependence. However, individualsnever lose their independence

entirely, and most will ndthemselves in situations where theycan take decisions on their own. Thisis true for individual ghters whooen have the choice of allowingsafe passage to displaced people at acheckpoint or robbing them of theirfew belongings. It is even truer at thelevel of commanders and the politicalleadership, where individuals giveorders that aect the behaviour oftheir subordinates. Recognising aparticular individual’s margin forindependent action is important,as is understanding how to adaptarguments to persuade the person infront of us that what we are sayingis specically relevant to them.

Persuasion can be greatly improvedif humanitarians follow threeprinciples:

■■ Take time to discuss.

■■ First sow doubt rather than tryto convince.

■■ Appeal to the other person’sself-image.

Taking time to discuss is a pre-condition for successful persuasion.This means both parties exchangingideas and asking questions, andinvolves the humanitarian workerlistening. Persuasion is not a quickand easy process; it works by building a case over time, sometimesover months. It is folly to think thata commander who has been ghtinga certain way for months or yearswill change his or her ways aer asingle meeting. It is also unrealisticto expect that a seasoned commanderwill have no opinion and will accept

ICRC dissemination session for Sudanese Liberation Army combatants in Durum, Darfur.

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our position without debate. Askingquestions is oen more eectivethan stating a position.

Rather than aempt to convincethe other person outright, thehumanitarian’s rst goal should be to sow doubt. Once our contactstarts to doubt the rightness oftheir current practices, it may become possible to nd pragmaticsolutions. Such solutions mayinitially fall short of completecompliance with the law, yet stillconstitute an improvement in thesituation. For instance, if we canremind a commander that childsoldiers represent a commandand control problem in military

terms (which they do), he or shemay be more open to discussingthe demobilisation of some childsoldiers or an end to the recruitmentof children in IDP camps.

Flexibility is essential. An all-or-nothing approach usually ends upwith nothing. Clearly, humanitarianworkers should not compromiseon international standards butagreement on less contentiousissues may open the door todiscussion on more dicult topics.

Appealing to the group’s self-image is a powerful lever whenaempting to bring about a changein behaviour. Few members ofarmed groups see themselves aswar criminals serving an unworthyend; most consider themselves to be part of a decent group, ghtingfor a noble cause. Emphasisingthis aspect and using argumentsthat appeal to their convictionsmay go a long way. Even if a group

intends to commit atrocities, anappeal to their honour as warriorsmay help ensure safe passage forthe wounded, for the elderly or forwomen. However, humanitariansmust be aware of the dilemmasinherent in discussing such a choice.

Some useful arguments

Arguments are contextual toeach situation and must be usedcreatively; no one argument will be eective in all cases. Using arange of arguments is usually moreeective, if only because it helpsestablish the credibility of theperson who is defending certainhumanitarian standards. The mostcommon arguments that the ICRC

has found useful in discussionswith armed groups relate to:

Beliefs: Members of armed groupshave moral, religious and/or political beliefs, and these oen constitutean incentive to respect at least someaspects of IHL. For instance, theSPLM in southern Sudan decidedto clamp down on violations whenthey realised that their ghters wereharming the very population forwhich the movement claimed to beghting. One can appeal to these beliefs by showing genuine interestand a willingness to understand,and by asking the other person toexplain apparent contradictions.

The group’s own policy: Appealingto a unilateral declaration made by the group, a code of conductor any other policy document canprovide powerful arguments.

Military necessity: Militaryprinciples such as economy ofeort, preservation of the economic basis and maintenance of popularsupport (‘hearts and minds’)can also provide convincingarguments in favour of compliancewith the principles of IHL.

Humanity: Victims of IHL violationsare human beings. Anyone can be reminded of their family andfriends, and of how they wouldfeel if they were harmed in theway they are harming others.Such an appeal to a shared humanidentity can be very powerful.

Respectability in the eyes of theoutside world: Many groups wantto project a positive image abroad

and are sensitive to argumentsrelated to the harm they will dotheir cause if they commit violations.For instance, a number of Burmesegroups issued directives prohibitingthe recruitment of children aer theyrealised that they were on – or wereabout to be put on – the list annexedto the UN Secretary General’s reporton children and armed conict.1

Legal: Pointing out that an actionis illegal may get the aention ofgroups who position themselvesas law-abiding, or who want totake the legal high ground.

International prosecution: Where international prosecution

is looming, compliance with IHLcan be presented as a way forindividuals to protect themselves; aninternational inquiry usually triggersmuch interest in these standards.However, this argument may backre badly if the humanitarianis suspected of collecting evidencefor a future prosecution.

None of these arguments is ananswer to all objections; using theright combination of arguments atthe right time may help the otherperson to re-think their position,and may prompt them to doubttheir initial stance. But this requiresthat the humanitarian reallymasters the arguments and does not

repeat them mechanically; beingon the receiving end of simplistic‘truths’ is amusing at best.

ConclusionWhile communication skills,knowledge of the dynamics ofarmed groups and an open mindare important, the crucial element iscredibility.

Credibility comes both fromthe individual’s knowledgeand experience and from theirorganisation’s performance in thecontext. One can discredit oneselfvery quickly by using arguments based on a wrong understanding ofthe armed group and its functioning,of the cultural and conictualcontext, of the humanitarian issuesor of the implications of the law formilitary reality. Humanitarians canalso be discredited by a discrepancy(even a perceived discrepancy) between what their organisation saysand what it actually does. Armed

groups oen watch the provision ofassistance to displaced communitiesvery closely; in some cases thesecommunities will include their ownfamilies. Ultimately, much dependson whether an armed group is opento persuasion. But when this is thecase, without credibility even thehumanitarian’s best arguments willfall on deaf ears.

Olivier Bangerter (obangerter@

icrc.org) is Advisor for Dialogue

with Armed Groups in the Unit for

Relations with Arms Carriers at the

International Committee of the Red

Cross (ICRC http://www.icrc.org/).

1. Online at:hp://tinyurl.com/SecurityCouncil13April2010




F M R 3 7

In many instances, armed non-state actors (ANSAs) play asignicant role generating forceddisplacement around the world;they are also responsible for manyabuses of human rights. On thewhole, however, ANSAs have not

been considered as being central tonding solutions for these problems.As non-state entities, they cannotparticipate in the creation of theinternational legal norms regulatingthese issues, nor can they becomeparties to international treaties – yeteorts to improve the protectionof civilians during armed conictcannot aord to ignore ANSAs.

Since 2000, the Swiss NGO GenevaCall has been engaging ANSAs1 to seek their compliance withinternational humanitarian norms,initially focusing on the anti-personnel (AP) mine ban and, morerecently, on the protection of childrenand women and the prevention ofsexual and gender-based violencein armed conict. Geneva Call’sexperience could inform eortsto engage ANSAs on the issue ofconict-induced displacement.

Geneva Call’s experience ofthe anti-personnel mine ban

Geneva Call’s work with ANSAson the issue of landmines has twosignicant characteristics. Firstly,the organisation has adopted an‘inclusive approach’, refrainingfrom employing coercive means(such as ‘naming and shaming’) butseeking rather to achieve changethrough dialogue, persuasion andcooperation.2 Secondly, in its eortsto address the lack of ownershipof humanitarian norms by ANSAs,Geneva Call has developed aninnovative mechanism, the ‘Deedof Commitment for Adherenceto a Total Ban on Anti-PersonnelMines and for Cooperation in MineAction’ (hereaer ‘the Deed ofCommitment’). This mechanism

enables ANSAs to declare theiradherence to standards similar tothose contained in the Conventionon the Prohibition of the Use,Stockpiling, Production and Transferof Anti-Personnel Mines and ontheir Destruction (AP Mine Ban

Convention) which, being non-stateentities, they are not eligible to sign.In signing the Deed of Commitment,ANSAs formally commit to a total ban on anti-personnel (AP) mines,to cooperate in and, where feasible,undertake mine action activities,3 and to allow for monitoring andverication of their compliance.

Geneva Call has so far engagedwith approximately 70 ANSAsworldwide. As of January 2011, 41of these, operating in 10 dierentcountries and territories (Burma/Myanmar, Burundi, India, Iran,Iraq, the Philippines, Somalia,Sudan, Turkey and WesternSahara), have signed the Deed ofCommitment banning AP mines.4

These commitments have improvedcivilian protection in the areas wherethe signatory groups operate. Overall,signatory ANSAs have abided by their obligations, refrainingfrom using AP mines, destroying

stockpiles and cooperating in mine

action in areas under their controlor where they operate.5 Moreover,the engagement of ANSAs in theAP mine ban has served as an entrypoint to highlighting the need toprotect civilians from other abuses.Article 5 of the Deed of Commitmentrequires signatories to consider theAP mine ban as one step toward broader adherence to humanitariannorms and many ANSAs have

expressed their support for GenevaCall to expand its operationalfocus to also encompass otherhumanitarian issues. The protectionof children and women in armedconicts was identied as a priority;as a result, Geneva Call recentlylaunched the ‘Deed of Commitmentfor the Protection of Children fromthe Eects of Armed Conict’and is exploring the possibility ofdeveloping an instrument on theprohibition of sexual and gender- based violence in armed conict.

Process of engagementIn order to consider the possibility ofusing a standard wrien instrumentas a tool for the engagement ofANSAs on displacement, it isimportant to consider the process bywhich Geneva Call secures adherenceto, and compliance with, the Deedof Commitment banning AP mines.

Every new signature to the Deedof Commitment is preceded

by a period of dialogue with

Experience of engagement with armed non-state actors on the landmineban may point the way to innovative approaches to preventing forceddisplacement and other abuses of human rights.

Engaging armed non-state actorsin mechanisms for protectionPauline Lacroix, Pascal Bongard and Chris Rush

One of the working groups at the 2nd meeting of signatories to Geneva

Call’s Deed of Commitment on AP mines, June 2009.

G e n e v

a C a l l




F M R 3 7

representatives of the leadership ofthe ANSA in question. In order toengage an ANSA, it is important tounderstand the factors that mightinuence it and that ANSAs donot operate in a political and socialvacuum. Most, if not all, havesome sort of constituency or derivesupport from the communitieswhere they originate. In manyinstances, sensitisation of suchconstituencies or communitieshas proven instrumental in bringing pressure on ANSAs,and consequently bringing aboutpositive change in their behaviour.

Not all ANSAs approached byGeneva Call have immediately

renounced the use of AP mines;rather than opting for an ‘all-or-nothing’ approach, Geneva Callmaintains dialogue with such groups.Alternative means to progressivelyreduce the impact of AP mines oncivilians have been promoted, suchas ensuring the demining of certainareas or encouraging the introductionof limitations to the circumstanceswhen mines may be used.

Given that ANSAs oen lack thenecessary resources, capacity andequipment to implement theirobligations under the agreement,particularly mine action activities,it is crucial to provide assistancein this respect – whether viatraining or technical assistance.

To ensure that signatories abide bytheir obligations, Geneva Call hasdeveloped a three-tier compliancemonitoring mechanism. Firstly,ANSAs are asked to report on theirimplementation and compliance.

This self-monitoring encouragessignatories to take responsibilityfor their commitments. Secondly,Geneva Call liaises with otheractors – such as governments,independent international andlocal organisations, and the media– to follow developments on theground. And thirdly, Geneva Callmay send eld missions, either on aroutine ‘follow-up’ basis or to verifyallegations of non-compliance.6

Applying Geneva Call’sapproach to displacement?Global estimates as to the numbersof people displaced by ANSAs’activities are not readily available but it is clear that in many instances

ANSAs have been either directly orindirectly responsible for the forcedmovement, deportation or non-movement of people; they have also been responsible for various formsof material and sexual exploitationof refugees and internally displacedpersons (IDPs), for denying people in both categories access to safety, andfor forcing return to unsafe locations.

Some humanitarian organisations,such as UN agencies, ICRC andNGOs, are already engagingANSAs on this issue. These eortstake various forms, for examplenegotiating access to displacedpopulations or, more rarely, trainingANSAs on IDP protection.7 Most

of these initiatives seem to beundertaken on an ad hoc basis,and, as far as the authors areaware, no organisation has yetdeveloped a formal engagementtool. The following discussionaempts to highlight how GenevaCall’s approach could informthe engagement of ANSAs ondisplacement-related norms.

The legal frameworkThe clarity of the rules containedin the AP Mine Ban Conventiongreatly facilitated the developmentof the Deed of Commitment banningAP mines. The legal frameworkregulating displacement, however,is more complex. Depending ontheir situation, displaced personsare entitled to protection aorded by one or more bodies of law –international refugee law (IRL),international humanitarian law(IHL) and/or international humanrights law (IHRL) – contained in avariety of treaties and conventions.

Various regional treaties, nationallaws and the Guiding Principles seekto complement these internationalnorms and facilitate theirincorporation into domestic law.

Taken together, these variousinstruments impose duties to bothprevent displacement and protectdisplaced persons at every stageof their ight and return. As wellas negative obligations (abstainingfrom forcing population to move,from commiing abuses againstdisplaced people, etc), they alsoimpose positive ones (ensuringaccess to food, shelter, education,etc). A humanitarian instrument ondisplacement would have to balance

the need to be as comprehensive aspossible in respect of the variouscircumstances where displacementis a risk or a reality with the needto ensure that its standards couldactually be applied in practice.

Incentives and deterrentsMany factors inuence the decisionof ANSAs to commit to humanitariannorms – for example, concern for thewell-being of the aected population,the desire to aract assistance toterritories under their control andthe wish to be considered worthyof governance. Similar motivationsmay be relevant in respect ofdisplacement. However, additionalfactors also have to be taken into

account. Given the culpabilityof states in forced displacement(for example, as part of counter-insurgency campaigns), ANSAsmight be more likely to requirereciprocity from the respective stateto abide by international normsrelating to displacement. Thatsaid, even though caution should be exercised when comparing thelandmine and displacement issues,Geneva Call’s experience showsthat there are indeed cases whereANSAs commit to humanitariannorms without reciprocity bystates. 36 out of 41 signatories ofthe Deed of Commitment banningAP mines were operating in statesnot party to the AP Mine BanConvention at the time of signature.

It is also important to consider that,unlike AP mine use per se, violationsof norms in respect of forcedpopulation displacement can, undercertain circumstances, constitutewar crimes or even crimes against

humanity. It is dicult to predictwhat impact this may have on theprocess of engagement. On the onehand, some commentators point tothe deterrent eect of international justice. The fear of prosecution couldconstitute an incentive for ANSAleaders and commanders to ensurethat their practices are in conformitywith international norms, thereforeeasing the work of an organisationwilling to engage them. On the otherhand, it may be that ANSAs would be less likely to accept dialogue, orto negotiate in good faith with suchan organisation, fearing that theymight share the information obtained(either voluntarily or following asummons by the court or tribunal),




F M R 3 7

which could then be used to takeaction against members of theANSA or the ANSA itself. GenevaCall expects to gain insight intothis aspect through its work withANSAs in respect of the new Deedof Commitment for the Protection ofChildren from the Eects of ArmedConict, as recruitment of childrenunder 15 constitutes a war crime.

Supporting implementationand monitoring complianceAt the same time as draing ahumanitarian instrument ondisplacement, it would be importantto plan implementation supportand compliance monitoringmechanisms. External support for

the implementation of commitmentson displacement by ANSAs is likelyto be even more crucial than in thecase of landmines. Indeed, we touchhere a key dierence between thetwo questions. Landmines haveto be taken out of the ground anddestroyed, which of course requiresa considerable amount of expertiseand resources but is a nite processaddressing inanimate objects. In thecase of displaced populations, whohave both agency and rights, andexperience various vulnerabilitiesat every stage of displacement,the picture is far more complex. Inorder to improve the protection ofaected populations and achievelasting change, the provision ofongoing assistance would be crucial.

Monitoring compliance with ahumanitarian instrument ondisplacement would also be very

challenging. In some instances,it is very dicult to dierentiatevoluntary from involuntarypopulation movements and to assessthe exact cause of displacement.Conict might be only one of thereasons why people ee their homesand thus it may oen be dicultto aribute responsibility fordisplacement to one particular actor.

Another challenge is that someobligations regarding displacementare not absolute. For instance, IHLprohibits compelling civilians toleave their place of residence unlessthe security of the civilians involvedor imperative military reasonsso demand. Yet assessing such

situations would be a very delicateexercise, and likely to be contested.

ConclusionGiven the nature of today’s armedconicts, eorts to improve civilianprotection must address not onlythe conduct of states but also thatof ANSAs. Mechanisms intendedto enforce rules have proven to be insucient but Geneva Call’sexperience has demonstrated that, by taking an inclusive approach,ANSAs can be engaged in changingtheir behaviour without the threat oruse of coercive means against them.

There would be many challengesin seeking to engage ANSAs ondisplacement-related norms throughthe development and use of aformal mechanism. However, giventhe scale of global displacementand the suering endured by

those displaced, the humanitariancommunity does need to beprepared to explore innovative waysto seek to address this issue.

Pauline Lacroix (pauline.lacroix@

graduateinstitute.ch), a recent

graduate from the Graduate Institute of

International and Development Studies

of Geneva, was an intern in Geneva

Call’s Asia Department in 2010. She

wrote this article with the assistance of

Pascal Bongard (pbongard@genevacall.

org), Geneva Call’s Programme Director

for Africa and Policy Advisor, and Chris

Rush ([email protected]), Geneva

Call’s Senior Programme Ofcer for

Asia. http://www.genevacall.org/

1. For operational purposes, Geneva Call uses the term

‘armed non-state actors’ to refer to organised armedentities which are primarily motivated by politicalgoals, operate outside eective state control, and lacklegal capacity to become party to relevant internationaltreaties. This includes armed groups, de facto governingauthorities and non- or partially internationallyrecognised states.

2. See Armed Non-State Actors and Landmines - Vol III:Towards a Holistic Approach To Armed Non-State Actors? 2007 hp://tinyurl.com/GCall-2007

3. hp://www.mineaction.org/section.asp?s=what_is_mine_action

4. The list of signatories can be found at hp://tinyurl.com/GenevaCallSignatories It is important to note that anumber of signatories have changed their status since thetime of signing and are currently no longer considerednon-state actors. Some of them have become part of theirstate’s authorities while others have either dissolved orabandoned armed struggle.

5. For more information, see Non-State Actor Mine Actionand Compliance to the Deed of Commitment Banning Anti-Personnel Landmines: January 2008 – June 2010. GenevaCall. 2010 hp://tinyurl.com/GCall-compliance2010

6. For example, see Fact-Finding during Armed Conict:Report of the 2009 Verication Mission to the Philippines toinvestigate Allegations of Anti-Personnel Landmine use by the Moro Islamic Front. Geneva.hp://tinyurl.com/2010-GC-Report-Philippines

7. See Norwegian Refugee Counci l’s activities: Zeender,Greta. 2005. ‘Engaging armed non-state actors oninternally displaced persons protection’, Refugee SurveyQuarterly Vol. 24, no. 3, pp. 96-111.

In Their Words

Although almost all current armed conicts involve one ormore armed non-state actors, the international community

knows little about their willingness to comply with international

standards or the challenges they face in doing so. And yet

their compliance is crucial if civilians are to be protected.

As a rst step towards overcoming this knowledge gap,

Geneva Call has collected the perspectives of a number of

different NSAs on the issue of protection of children in armed

conict. This report, published in December 2010, is called In

Their Words: Perspectives of Armed non-State Actors on the

Protection of Children from the Effects of Armed Conict.

How do armed non-state actors see their role in protecting

children from the effects of armed conict? What challenges

do they face? How do they perceive and react to international

mechanisms? This publication not only takes an initial step

towards answering these questions but also provides examples

of good practice. It is clear that NSAs are part of the problem.

The focus here is on how they may be part of the

solution. The publication includes contributionsfrom NSAs operating in Africa, Asia and the

Middle East. It also includes contributions

from the unrecognised State of Somaliland,

the partially recognised State of Abkhazia

and the independence movement

Polisario Front of Western Sahara; the

rationale for their inclusion is that these

entities too are without an international

forum to make their perspectives known.

In Their Words aims to promote a more constructive basis for

discussion between the international community and NSAs

with the hope that children will be the ultimate beneciaries.

Online at http://tinyurl.com/GCall-InTheirWords

For more information, please contact Jonathan Somer,

Geneva Call +41 22 879 1050 or [email protected]




F M R 3 7

The Lord’s Resistance Army’sincreasingly violent aacks againstcivilians in Uganda from the1990s and well into the 2000s –through large-scale and systematicabductions, massacres, maiming

and military use of children – ledto an unprecedented humanitariancrisis characterised by massivepopulation displacement.

Six years aer arrest warrantswere issued by the InternationalCriminal Court against the LRA’sleader, Joseph Kony, and four of itstop military commanders, civilianpopulations across several countriesof East Africa remain greatly aected by LRA violence. Regular armiesand peacekeeping forces have sofar failed to eradicate the group byforce. Peaceful eorts to end theviolence have also fallen short.

Unprecedented forceddisplacementWhile there is generally a correlation between the presence of armedgroups and the forced movementof populations, the level and scaleof displacement in areas wherethe LRA has been operatingare relatively high, especially

considering the limited size andmilitary capacity of the group.

Displacing populations by forcehas been a deliberate objective ofthe LRA. Acts of extreme violenceand terror perpetuated by thegroup, whether in the form of large-scale massacres, repeated aacksor symbolic cruel acts such asmutilations, have spread fear in localpopulations and have resulted in thedisplacement of civilians and eventhe depopulation of entire areas.

The LRA has also displaced civiliansduring violent aacks by forcingthem to move with the group, both asa military strategy and as a survival

strategy. Those captured or abductedare uprooted from their communitiesand – unless they are only forced tocarry looted goods for a few days before being released or killed – theywill have no other choice but to join

the LRA for months or years to come.In addition to killing those tryingto escape as a deterrent to others,the LRA purposely disorients itscaptives by forcing them to walkacross vast areas and to cross borders.Testimonies of formerly abductedpersons conrm that they had beenkept constantly on the move, rarelysleeping twice in the same place.Many escapees recall the days orweeks they spent trying to get back towhere they had been abducted from.

Government-led policies to resistor prevent LRA violence againstcivilians have failed and have oenyielded results opposite to what wasintended. Most signicantly, in 1996,the Government of Uganda forciblymoved hundreds of thousands ofAcholi into ‘protection camps’. Thepeople displaced by this hasty andill-conceived counter-insurgencystrategy did not nd the protectionthey needed at all, as theseselements became an easy target

for the LRA to abduct civilians from,especially young adolescents. Thehigh risk of abduction persuadedparents that it was safer for theirchildren to leave the camps atnightfall for the main towns. Thisunique phenomenon known as ‘nightcommuting’, which led to the dailymigration of thousands of children,lasted several years and eventuallytriggered an international outcry.

In 2002, the government orderedthose remaining in villages to moveinto camps. By mid-2005, the levelof displacement reached a peakwith some 1.8 million IDPs, andapproximately 90% of the populationin Acholiland. For those forced

into these congested camps thishas also meant forced dependency,vulnerability, humiliation andcollective fear and disempowerment.

Running and hidingOver the years, many people haveprematurely announced the ‘end ofthe LRA’ and claimed military victoryover the group; these predictionsand statements have always

proved wrong. The military optionpersistently pursued – althoughpartially suspended by severalpeace initiatives – has not been tiedinto serious analysis of the LRA’smilitary strategy and their unusualresilience and adaptability. Yearsof successive military operations by the Ugandan People’s DefenceForces have had a limited eect indamaging the LRA’s top militarycommand but have had disastroushumanitarian consequences.

The group has also been consistentin operating in remote areas wherestate presence and infrastructuresare minimal or absent, where thereare no communication networks butenough people, mineral resourcesand food to prey on. The LRAhas therefore remained relativelyundisturbed in border areaswhere state presence is weaker.

Once the Government of Sudanstopped backing the group in 2005,

the deliberate military strategy of theLRA to be constantly on the moveand in hiding gradually becametheir best option for survival. Whilefor some the LRA appears to beunder pressure and running forits life, for a number of analyststhey are not just surviving but areskilfully using terror and runningrings around several armies.1 Whileover the past few years the groupappears weakened and depleted by continuous military operations,deaths and defections, the scaleof its violence has comparativelyincreased. It has been said aboutthe situation: “This is a conictthat everyone says they want toend, but nobody seems able to.”2

Despite being a relatively marginal armed group, the Lord’s ResistanceArmy (LRA) has triggered forced displacement on a massive scale. Butwhy have national, regional and international responses so far failed todismantle the group and to protect civilians effectively?

‘Catch me if you can!’The Lord’s Resistance ArmyHéloïse Ruaudel




F M R 3 7

Protecting civiliansThe spread of the LRA over severalnational territories in the last veyears has not coincided with thedevelopment of a coherent regionalresponse to dismantle the groupand protect local populations. Thetraditional state-centric securityapproach has been adopted bystates who have mainly consideredthat the LRA does not have themilitary capacity to threaten theirrespective regimes. While they haveoccasionally deplored the humancosts, the thousands of deaths andthe displacement of about 400,000people, this has so far failed totrigger a comprehensive interventionto halt the violence and protect

civilians, which a human security‘people-centred’ approach mighthave done. This can be observed at anational level, through the regionalapproach and internationally.

The fact that the LRA is no longeroperating on Ugandan soil has liedthe pressure o the governmentthere to protect its own civilians, andUganda sees no obligation to protectforeign civilians against the exactionsof this ‘Ugandan-led’ armed group.

For the governments of theCentral African Republic and theDemocratic Republic of Congo, theLRA is but one among many armedgroups operating on its territory– but one with very lile politicalweight compared to others, notdeserving an enhanced action fromtheir already weak and stretchedarmies. For the Government ofSouth Sudan, the implications ofthe self-determination referendum

have supplanted preoccupationsabout the LRA despite reportsof LRA aempts to re-establishcontact with the Sudanese Army.

Furthermore, the LRA hasindirectly beneted from theshiing relationships betweenthe states in the region and thecontinuous mistrust and lack ofcoordination that have characterisedmore recent joint operations.

What is neededLike the states involved, the UNpeacekeeping missions in the regionare all well aware that the LRAalmost systematically retaliatesagainst civilians in response to

military aacks. The regional armiesand the peacekeeping missionsalike have disclaimed responsibilityfor failing to protect civilians.

The LRA is considerably weakenednow in comparison to the early2000s but it is operating over amuch larger territory and the eectsof its actions remain disastrousfor civilians and continue tocause large-scale displacements.The continuing lack of a strong,coherent and consistent regionalresponse will play out in favour ofthe LRA which has proved to bevery opportunistic and adaptable.

A new human security approachto conict resolution is needed toavoid a prolonged low-level militarycampaign that causes extremeinsecurity for civilians and yet failsto halt the LRA’s activities.3 Whilethe resumption of peace negotiationsremains improbable in the short

term, there is scope to engage ina political process designed toestablish regional peace and securitythrough coordinated military eortsto apprehend the LRA’s leadershiptogether with the involvement ofcivil society and communityleaders. It needs to be designed insuch a way as to mitigate the riskof civilian causalities including byprotecting civilians from potentialretaliatory aacks by the LRA,improving information gatheringabout the group, combinedwith preventive deployment ofpeacekeeping and armed forcesin areas at risk and, nally,encouragement for LRA defections.

While aected populations needincreased emergency humanitarianaid, in order to progressively deprivethe LRA of their operational spacein border areas, governments anddonors should also mark theirpresence by prioritising socio-economic development to reducethe vulnerability of isolated localcommunities.

Héloïse Ruaudel (heloise.ruaudel@

qeh.ox.ac.uk) is the Policy Programme

Manager at the Refugee Studies

Centre. She was the Special Assistant

to the UN Humanitarian Coordinator

in Uganda between 2003 and 2005.

1. Tim Allen and Koen Vlassenroot, The Lord’s Resistance Army – Myth and Reality, Zed Books (London), 2010

2. Chris Dolan, Director of the Refugee Law Projecthp://www.refugeelawproject.org

3. Mareike Schomerus and Kennedy Tumutegyereize, Aer Operation Lightning Thunder, Protecting Communitiesand Building Peace, Conciliation Resources, 2009,hp://tinyurl.com/Schomerus-Tumutegyereize and LRA: A Regional Strategy beyond Killing Kony, Crisis GroupAfrica Report, No. 157, 2010hp://tinyurl.com/ICG-regional-strategy-on-LRA

Engaging with armed groups: dilemmas and options for

mediators by Teresa Whiteld draws on experience and case

studies to provide mediation practitioners with an overview of

the challenges associated with engaging with armed groups.

The publication’s focus is on the dilemmas, challenges

and risks involved in a mediator’s early contacts with an

armed group and subsequent engagement as interlocutor,

message-carrier, adviser and/or facilitator – all roles that

may precede and accompany formal negotiation between

parties to a conict. The author also suggests options formediators from early contacts to formal negotiation.

This is the second in the HD Centre’s Mediation Practice

Series. The rst in the series, External actors in mediation,

looked at how mediators can work effectively with actors

such as regional powers, neighbouring states, regional

organisations and donor countries. Forthcoming publications

will address issues such as the negotiation of ceaseres,

managing spoilers in peace processes, and whether

or not to involve civil society in peace processes.

The HD Centre is an independent global mediation

organisation. For more information, seehttp://www.hdcentre.org or email [email protected]

Engaging with armed groups: dilemmas and options for mediators

Published in October 2010 by the Centre for Humanitarian Dialogue (HD Centre) and online at:

http://www.hdcentre.org/les/HDC_MPS2_EN.pdf




F M R 3 7

Throughout decades of brutalconict, which have seen thousandsof villages destroyed and millionsof people displaced, Burma’s rulingregime has made no eort to providesupport for aected civilians. Asa result, Burma’s ethnic non-statearmed groups (NSAGs) – thoughtto hold territory covering a quarter

of the country’s landmass – playa crucial role as protectors andproviders of humanitarian aid.

The approach to governance taken by dierent NSAGs varies greatly,as does the level of willing supportgiven to them by their respectivepopulations. In these traditionalcultures, hierarchical leadershipstructures have evolved over time,oen based largely on loyalty tothose who provide support andprotection. Leaders linked to orpart of NSAGs are now rmlyestablished as being responsible forthe governance of millions of peoplein Burma. This situation poses athreat to the state which, in turn,has responded with brute force,perpetuating the cycle of conictand protracted displacement.

Areas under the governance ofNSAGs in Burma can be dividedinto what are known as the ‘blackareas’ of active armed groups and

the ‘ceasere territories’ of thosewho made agreements with thenational government over 15 yearsago. These areas are collectivelyhome to millions of civilians, manyof whom ed areas of conict ormartial law to nd refuge andhumanitarian support. In many ofthese areas, education, healthcare,specialist support for youth andwomen as well as emergency reliefare provided by the NSAGs’ civilsectors, in most cases to a muchhigher standard than that provided by the state in nearby regions.Community workers supportingthese projects, however, are heavilyrestricted and regularly aacked andarrested by Burma Army soldiers.

IDPs who have ed to the ‘blackareas’ are typically considered bythe state to be supporters of therebels and are under continuousthreat of violence. Those in theceasere zones receive no supportfrom the government and,increasingly since 2009, experiencesporadic incidents of abuse by the

Burma Army. To many of thesepeople, who are almost all ethnicminority citizens, all forms of stateadministration are seen as a threatrather than anything resemblinga government; such tensions

exacerbate xenophobia betweenethnic groups, and heighten people’sdependence on NSAG support.

Post-election challengesMeanwhile, non-conict regionsin Burma are in a state of politicaltransition which has allowed anew set of development actors tocome in and new rationales amonginternational donors. The elections

held in November 2010 were ascorrupt as most people expectedand set continued military rule instone. However, parallel to this, manyforeign donors and governmentshave noted the military looseningits grip on civil society, openingup an unprecedented amount ofspace for humanitarian supportand development. In parallel withthis, however, all NSAGs have beenordered to incorporate their membersinto the Burma Army as ‘border-guard forces’, triggering a new series

of threats to civilian communities andlile hope for reconciliation betweenthe military and NSAGs or their civilsectors. The majority of NSAGs haverefused to be incorporated into theBurma Army and now anticipate

mass oensives by the Burma Armywhich could potentially lead to thefurther displacement of hundreds ofthousands of civilians. In November2010, a breakaway faction from theDemocratic Karen Buddhist Armythat had refused the government’sdemands launched aacks on theBurma Army which then retaliatedwith mass use of artillery, displacingat least 20,000 civilians. This has

Until a government of Burma is able to accept the role of NSAGs asproviders for civilian populations and affords them legitimacy withina legal framework, sustained conict and mass displacementremain inevitable.

Dilemmas of Burma in transitionKim Jolliffe

IDPs in

Burma

F r e e B u

r m a R a n g e r s




F M R 3 7

continued into early 2011, withrefugees moving across the border aswell as being sent back almost everyday since the skirmishes began.

Essentially, while other parts ofBurma may see improvements indevelopment and access to services asthe economic and political frameworkof the country is reordered, it is likelythat marginalised communitiesin the east of the country will bele with very lile, and will in factsuer further conict as a resultof the nation’s overall transition. Ifthe military’s plans are successful,and NSAGs are incorporated intothe army, years of experienceand training of employees of the

NSAG civil sectors – teachers,medics, administrators, and soon – will have been wasted.

This presents a dilemma for thoseinternational actors who, alongsideNSAGs in Burma, provide supportto these populations: how muchdoes support to NSAGs entrenchexisting divides and perpetuateconict? Development agencieswould normally be advised to avoidlegitimising any armed group byallowing them involvement inthe distribution of internationallyfunded supplies. However, when thenational government is essentiallyan armed group itself (perhapseven more so than a number of thepolitical organisations linked toNSAGs in Burma), dicult choicesneed to be made. These involve farmore than moral considerations;they also involve looking at theimpracticality of supporting groupswhich are, alas, no longer potentialagents of change. This is especially

relevant as, in recent years, moreand more development actorsand researchers argue that thedevelopment of civil society underthe military government could notonly bring unprecedented successesin development but also help bringabout political change over time.

Undoubtedly, however, in thecurrent climate withdrawing supportprovided through NSAGs would begravely injurious to people undertheir governance in the short termand would in no way guaranteeeven long-term benets. Until agovernment of Burma nds a genuinepolitical solution which incorporatesNSAG leaders, the environment for

international aid agencies is likelyto remain contentious – but muststill involve the provision of supportthough these groups. There shouldnow be a pragmatic focus on whatcan be done to encourage greatercooperation between legitimate (i.e.government-allowed) and NSAGcivil society groups to ensure that,where possible, groups operatingin NSAG territory can provideservices legitimately in the future.

There is a glimmer of hope in thatthere are some NSAG civil societygroups that have been able tooperate in government territoryin recent years. The education branch of at least one of the more

responsible ceasere groups nowprovides support for primaryschools in government-controlledareas through the monasteries.However, the question of continuedviability of such programmes islargely dependent on the outcomeof the expected are-ups in conictand the aitude local authoritieswould take towards the group nowthat – having refused incorporationinto the army – they have beendeclared illegal. Ominously,oces of the Kachin IndependenceOrganisation and the New MonState Party have already been shutdown in government territoryand in early 2010 numerous youthworkers of the former organisationwere arrested, supposedly as partof a search for terrorist bombers.

The decades-long trend of thegovernment taking a unilateraland belligerent approach toconict resolution looks certain tocontinue, as will its policy of non-

discrimination between soldiersand civil workers linked to politicalopposition groups. Without theseconcessions being made, NSAGswill inevitably retain arms and, inareas of active conict, continueto target government troops withambushes, landmines and otherguerrilla tactics, even if theirpower bases are successfullyeliminated. These activitiesprotect vulnerable populations butalso provoke retribution againstcivilians, creating a vicious cycleof conict and displacement.

ConclusionSome commentators are optimisticthat space for ocially permied

relief and development aid will beginto open up, rst in non-conict areasand then spreading to other regions.However, unless some event causesa dramatic shi within or removalof the ruling commiee of militarygenerals that continues to dominatepolitics in Burma, this is likely totake decades, making continuedsupport through NSAGs essential.

In the meantime, those workinglegitimately in Burma will need topush the boundaries to gain accessto vulnerable populations, no maerwho controls their territories. Butthis is dicult. According to anethnic local NGO leader based inYangon, “We would like to work

more with the community groups inthe border areas but if we are seen to be making contact, the governmentwill think we are supportingrebels.” Furthermore, commenteda foreign consultant to numerousinternational NGOs in Yangon: “Itis already hard enough to get MoUs[Memoranda of Understanding] fordevelopment in the most peacefulparts of the country. Weighing uppoor peaceful areas or poor conictareas, organisations will picktheir bales…. [and] INGOs willprobably be unwilling to send theirsta to dangerous areas anyway.”

NSAGs will remain critical to theprovision of support to considerablenumbers of IDPs in Burma, unlessthe government changes its approachto governance in these regions.Most IDPs and other civilians willcontinue to choose to live underthe governance of NSAGs; and willremain dependent on internationalsupport. Steps to encourage a

convergence of ideas and resourcesamong legitimate civil society andgroups linked to NSAGs should be, and could become, critical tothe future peace and developmentof these regions, yet oer fewsolutions to the current displacementcrisis. International donors shouldconsider increasing support –administered from Thailand – forthe most vulnerable populations,while working towards the long-term objective of convergence.

Kim Jolliffe ([email protected])

has been researching conict and

training community groups in

Burma for the past two years.




F M R 3 7

Practically all armed groups areheavily dependent on externalsupport. Armed groups primarilyseek support from both other statesand from the diasporas, displacedpopulations and other armed groups,in order to prevent the burden of thewar eort from falling entirely on the

civil population they claim to protect,a situation that has its own politicalcosts. States too need external supportto deal with outbreaks of instabilityand violence; during the Cold Warthis was normal and it still continuestoday in most current armed conicts.

The violence, discrimination andpoverty that follow armed conictslead to forced displacements ofpopulation that oen help to maintainthe original conict. Armed groupsfrequently use IDP and refugee campsas a source of supply and recruitment,as well as for refuge for themselves.Although the armed groups have nolegitimate power, they can dependon the refugee population on twoessential fronts: ghters and income.

Armed groups have been formed orhave recruited members (voluntarilyor forcibly) and resources from theIDP and refugee camps in regionsand states neighbouring conictzones. In some cases these camps

have become important refuges andlogistical bases for the armed conict.

Most of the Afghan armed groupsoriginated in refugee camps inneighbouring countries. TheTaliban, for example, emerged fromthe madrassas (Koranic schools) ofthe Afghan refugee populationin Pakistan. The Karen refugeepopulation – mainly on the Thai-Burma border – supports the KarenNational Union armed groupagainst the Burmese government.The Hutu and Tutsi communitiesthat le Rwanda and Burundiduring the successive waves ofviolence following independencein the 1960s seled in large refugee

camps in Uganda, Rwanda,Burundi, the Democratic Republicof Congo and Tanzania whichlater spawned the insurgencythat destabilised both countries.Other cases of similar eects can

be seen in Ethiopia, Iraq, TurkishKurdistan, Chechnya, Sri Lanka,

Sudan, Tajikistan and elsewhere.

The refugee populations providesupport for insurgent groups asa way of establishing protectionmechanisms in host countries.Without any such protection,refugee populations are frequentlyextremely vulnerable given thepotentially hostile local populationand/or state authorities, and arethus at the mercy of other armedgroups and criminal gangs.

Coercion is another important factorin eliciting contributions from therefugee population, particularlywhen armed groups are in controlof refugee camps. The groups areeasily able to take over as they are

both armed and organised, whereasthe displaced populations tend to bedisorganised, weak and unarmed. Inthese circumstances it is easy for thegroups to demand money, provisionsand recruits from these populations,even where they are unpopular

and are not supported by thepopulations they claim to represent.

The most extreme example of thissituation occurred following thegenocide in Rwanda in 1994, whenthe remnants of the former RwandanArmed Forces, ocials from theprevious Rwandan government andthe Interahamwe militias organisedresistance in the refugee camps inthe former Zaire. They created ade facto government within thesecamps, exploiting international aid tocontinue their armed struggle againstthe new government in Rwanda,forcibly abducting and training newrecruits, controlling and distributinghumanitarian aid, and appointing

themselves as camp managers,giving the refugee population noalternative but to let them do so.

A similar situation is happeningwith the displaced populations inthe Sudan region of Darfur. Thesepeople have suered repeatedaacks and abductions in recentyears, becoming immersed in aspiral of militarisation by insurgent

groups, pro-government militiasand the Sudanese Armed Forces.

The economy of armed groupsThere can be varying forms ofeconomic relationship between armedgroups and displaced populations.Some armed groups persuade thepopulations under their control toprovide resources, while others forcethem to. The relationship betweenthe parties may be symbiotic,parasitic or predatory, and maymove from one type to anotherdepending on how the war develops.

In a symbiotic economic relationshipthe armed group promotes certaintypes of activity in exchange for ashare in the derived benets. In suchcases the economic developmentof the area and the economic well-

being of the population may becomedependent on the armed groupfor security and infrastructure;the group establishes a degree ofsocial and economic order in the

areas it controls in exchange forsupport and income, emulating agovernment and providing security,infrastructure and a rule of lawthat allow economic activities tocontinue in exchange for some formof taxation on the civilian population.

In a parasitic arrangement the armedgroups provide protection andguarantees of security in exchangefor collaboration and economicretribution through extortion or theestablishment of taxes and charges,charges for permission to accessresources, looting of internationalaid, or payments known as‘revolutionary taxes’. The degree ofextortion may be more controlled

One of the ways that non-state armed groups get their funding is byexploiting displaced populations.

The economic relationship of armedgroups with displaced populations Josep Maria Royo Aspa




F M R 3 7

The development of private militaryand security companies (PMSC) hasproduced a new breed of securityguards and private soldiers engagedin war zones and highly insecureareas under murky legal restraints.Their activities blur the borderlines between the public services of thestate and the private commercialsector, creating a dangerous ‘greyzone’ with no transparency, noaccountability and no regulation.Their activities, together with thoseof paramilitaries and mercenaries,are having an increasingly negativeimpact by causing forceddisplacements and human

rights violations in general.

The PMSC industry fulllsa number of tasks whichwere traditionally carriedout by national armed forcesand the police. Governments,inter-governmental and non-governmental organisations,transnational corporations,humanitarian organisations,the media and internationalorganisations are increasingly usingtheir services. This army of privatesecurity guards constitutes thesecond largest force in Iraq aer thatof the US Army. In Afghanistan,the gures released in April 2010 by the US Department of Defense

indicate that there are 107,292 hiredcivilians and 78,000 soldiers.

The use of private military andsecurity companies in humanitarianoperations has blurred the distinction between humanitarian non-protorganisations and private prot-making corporations. In conictor post-conict areas, such asAfghanistan and Iraq, where PMSCsincreasingly provide security tohumanitarian NGOs, ithas become

dicult for the local populationas well as government ocialsto distinguish humanitarianassistance from intervening force.

Capitalising on this, one securitycompany regularly put anadvertisement in the Journal of International Peace Operations1 in relation to its activities inAfghanistan, Somalia, Congo,Bosnia and Herzegovina, Sudanand Iraq displaying a picture of anindividual feeding a malnourished baby with the following message:

AfghanistanThe population of Afghanistanis concerned by the lack ofregulation and accountabilityof the private securitycompanies in an environmentof a failed state and post-conict situation. In armedconicts and post-conictsituations PMSC employees,contracted as civilians but armed as militarypersonnel, operate withan ambiguous statuswhich can transform

State security functions normally carried out by national armies or policeforces are being outsourced to private military and security companies incountries where conict is displacing many people.

Privatising security and warJosé L Gómez del Prado

and regulated if it stems from theleadership of the armed group, orit may be totally arbitrary whereindividual combatants establishthe level of abuse and extortion.

In a predatory economic relationshipthe armed groups are unconcerned

by relationships with the civilianpopulation, intimidating andterrorising them through the useof force in order to increase theirpower or to gain access to resources.

ConclusionsIt is important to be aware thatthe relationships that emerge

between armed groups and civilianpopulations in the economy of wardo not always correspond to thestandard victim-victimiser model.These relationships may be far morecomplex and may generate new formsof protection, authority and rightsover the distribution of resourcesthat may then play a decisive role inthe outcome of the armed conict.Understanding the economy andfunding mechanisms of non-statearmed groups is essential if we areto fully understand their nature.Greater understanding is neededof how these groups operate andwhere their funding comes from if

we are to be in a position to facilitatehumanitarian action in contexts ofviolence and to promote the respectfor and fullment of human rights.

Josep Maria Royo Aspa (josepmaria.

[email protected]) is a political scientist

and since 2000 has been a

researcher on the Programa de

Conictos y Construcción de la Paz

(Programme on Conict and Peace-

building, http://escolapau.uab.

cat/) at the Escola de Cultura de

Pau (Faculty of Peace Culture) in the

Autonomous University of Barcelona.

“Through seless commitmentand compassion for all people,

Blackwater works to make adierence in the world and

provides hope to those whostill live in desperate times.”




F M R 3 7

them from a ‘civilian’ into a‘combatant’ at any moment.2

In many instances the localpopulation in Afghanistanperceives employees of PMSCsas contributing to insecurity byperpetuating a ‘culture of war’,and is concerned about the lack oftransparency and accountabilityof PMSCs and their employees.Private security guards who are incivilian clothes, do not wear anyidentication and travel in unmarkedvehicles are dangerously blurringthe lines between humanitarianactors working in the country andsecurity forces. Afghans also appearto think that funds needed for

reconstruction are being divertedto pay private security companies,which may paradoxically prevent thestabilisation of peace in the country.The belief that private securityguards are making the country moreunstable in order to keep their jobsis also widespread among Afghans.

Private security companies are alsosending the message to the localpopulation that security is not apublic commodity and that it isonly available to rich expatriates orwealthy Afghans. Many Afghans alsolook on private security companiesas private militias and associate themwith warlords and criminal gangs.

IraqIn Iraq, by Order 17 issued by theAdministrator of the CoalitionProvisional Authority (CPA) in June2004, contractors were immunefrom prosecution during thethree years of the CPA. Similarlyin Colombia, any abuses which

may be commied by US militarypersonnel and private contractorsworking under Plan Colombia can beneither investigated nor prosecuted.Furthermore, following a 2003agreement between Colombia andthe US, the government of Colombiawould not be able to submit to the jurisdiction of the InternationalCriminal Court any US armed forcespersonnel or US private contractorsworking for transnational privatesecurity companies who havecommied crimes against humanity.

In Iraq as in Afghanistan manysecurity functions have beenprivatised using contractors whichhave been able to operate with

impunity. However, the extentof human rights violations bythese contractors has obliged theauthorities to react. In Afghanistanthere have been some eorts toestablish legislation to regulate andmonitor the transnational securitycompanies operating in the country.Early versions of the dra lawon private military and securitycompanies were rejected by theMinistry of Justice and the SupremeCourt because they were in conictwith the Afghan Constitution (2004),which grants the monopoly of theuse of force to the state, as well asin conict with the Police Law ofSeptember 2005, which lists theduties and obligations of the police as

including public order and security.

In Iraq, aer the indiscriminateshooting of 16 September 2007 inthe populated neighbourhood ofMansour in Baghdad, in whichBlackwater3 security contractorsprotecting a US State Departmentconvoy opened re on civilianskilling 17 persons (including somechildren), Blackwater was expelledand all its activities suspendedin the country – and all privatemilitary and security companiesoperating in Iraq were reassessed.The privatisation of securityhas challenging implications foraccountability in the current contextof Iraq and Afghanistan and it islikely to have a longer-term impacton the populations’ perceptionof justice and the rule of law.

End notesThe PMSC industry is transnationalin nature and is growing veryrapidly, particularly since the

beginning of the recent conictsituations in Afghanistan andIraq, with an aggregate estimate ofcontracts between US$20 billion and$100 billion annually. Since 2001the use of these private contractorsto support operations in Iraq,Afghanistan, Somalia and otherfailed states, and the human rightsviolations in which they have beeninvolved, have become the focusof international aention. It hasgenerated debate about the type offunctions PMSCs should fulll, thenorms under which they shouldoperate and how to monitor theiractivities. To respond partly to theseconcerns the two governmentswhere most of the security industry

(70%) is located, UK and USA, withthe government of Switzerlandand the security industry itself,launched the Swiss Initiative4 basedon the idea of self-regulation.

Because of PMSCs’ impact in theenjoyment of human rights, theUN Working Group on the Use ofMercenaries (WGUM) is convincedthat a legally binding instrumentregulating and monitoring theiractivities at the national andinternational level is necessary.

A resolution dissociating theactivities of PMSC from thetraditional resolution on mercenaries

was tabled in 2010 at the UNHuman Rights Council in Geneva.Although adopted by a largemajority, the delegations of theWestern Group generally votedagainst the resolution, a clearindication of the interests of theexpanding security industry.

Having been adopted by the HumanRights Council the resolution opensup a process for all stakeholders toelaborate an international frameworkto regulate and monitor the activitiesof private military and securitycompanies. The elements and thedra text of a possible Conventionpresented by the WGUM will beone among many other initiatives

Over 5.5 million hectares have been

appropriated by paramilitaries,

government ofcials and agro-

industrial corporations from Colombian

peasants, thousands of whom

were internally displaced or killed

throughout the 1980s. A former senior

ofcer in the Israeli Defense Forces,

Yair Klein, established a private

military and security company named

Spearhead Ltd through which he

participated in the training of right-

wing paramilitary groups in Colombia.

Members of these were responsible

for grave human rights violations, the

assassination of peasants, widespread

land theft and displacement of

populations in Colombia.

In 2001, Klein was tried in absentia

by the Criminal court of the Manizales

District in Colombia, found guilty of

providing training to paramilitary

groups and drug trafckers, and

sentenced to 14 years’ imprisonment.

Klein is currently in Israel.




F M R 3 7

for the elaboration of such aninternational regulatory framework.For this process to succeed, it will be necessary for public opinion andcivil society of Western countriesto bring enough pressure to bearon their respective governments.

In addition, national governments,as shown above, can be and should be encouraged to take on thistask in their own countries wherePMSCs are operating, although theexamples show that they tend to

take action only aer abuse becomesunacceptably great or visible.

It would certainly help also ifmultinational, humanitarianand media organisations, forexample, took a more thoughtfuland responsible aitude towardsemploying or cooperating with theseorganisations.

José L Gómez del Prado (jose.del-

[email protected]) is the Chairperson-

Rapporteur of the UN Working Group

on the Use of Mercenaries (http://

www2.ohchr.org/english/issues/

mercenaries/).

1. Publication of the International Peace OperationsAssociation and the Peace Operations Institute, vol. 2,No. 4, January/February 2007, Washington hp://issuu.

com/ipoa/docs/ In November 2010, the InternationalPeace Operations Association changed its name toInternational Stability Operations Association.

2. UN Report of the Working Group on the Use ofMercenaries to the Human Rights Council hp://www.unwg.rapn.ru/ru/4/Annual%20Reports/2__G0811295.pdf ; UN Report of the Working Group on the Use ofMercenaries to the General Assembly hp://www.unwg.rapn.ru/en/4/Annual%20Reports/2__N0652080.pdf

3. Now called Xe Services.

4. hp://www.eda.admin.ch/psc

Recent estimates suggest that up to4.9 million Colombians have beeninternally displaced as a result ofthe protracted armed conict andassociated political violence thatinvolves the state and armed le-wing guerrilla groups, as well as arange of highly regionalised right-wing ‘paramilitary’ groups andarmed drug-tracking networks.1 Much of the forced displacement inrecent years has resulted directly orindirectly from mil itary oensives by the state and by paramilitarygroups disputing control of ruralzones that were historically guerrillastrongholds. Not only have internallydisplaced persons (IDPs) ed the

eects of the war but, in acutedisputes for control over territoryand population, all parties to theconict have forcibly displacedlocal inhabitants suspected of‘collaborating’ with the enemy.

The large number of non-state armedgroups (NSAGs) and the complexnature of their shiing disputesand alliances belie any easy aemptto characterise their role in thephenomenon of forced displacementin Colombia. Nonetheless, whileother NSAGs have appeared anddisappeared, the Communist-oriented Revolutionary Armed Forcesof Colombia-Army of the People(FARC-EP) and the smaller Cuban-

inspired Camilist Union-NationalLiberation Army (UC-ELN) haveendured as the principal insurgentparties to the conict. The fact thatmuch of the displacement in thepast 15 years has been triggered intheir rural zones of inuence raisescertain important questions: Howdo they understand and apply theIHL provisions prohibiting forceddisplacement? How do they reactto returns by IDPs to those ruralzones where they operate? Whatpossibilities exist for IDPs to return insafety to such zones? What role canlocal or international humanitarianagencies play in such processes?

This article draws upon my eldresearch in six regions of Colombiaduring 2007 and 2008, documentingprocesses of returns by IDPs in thoseand preceding years.2 At that time,guerrilla groups were militarilyactive in almost all of these regions,a situation that has now changedowing to military gains by the state’sarmed forces in some regions.

IHL and internal regulationsThe two main insurgent NSAGsconceive their relationship tointernational humanitarian law (IHL)in fundamentally dierent ways.The FARC-EP does not accept thatit is formally bound by IHL, which,in any event, it considers “open to

interpretation”.3 The UC-ELN, bycontrast, arms that it is covered by the 1977 Additional Protocol IIto the Geneva Conventions (AP2)and has incorporated many ofthese rules into its Code of War.Yet it also criticises AP2 as beingincomplete and imprecise, and hassupplemented it with regulationsthat appear to go beyond theformal requirements of IHL.4

Regardless of these legalconsiderations, each guerrillagroup formally regulates its ghtersthrough a diuse body of internalrules, which sometimes coincidewith basic principles of IHL. Forinstance, both guerrilla organisationsrequire their members to treat withrespect persons whom they consideras non-combatants. Thus FARC-EP

disciplinary rules expressly outlaw“…disrespect towards the masses,the killing of men or women ofthe civilian population, sexualviolation, robbing from the civilianpopulation… [and] any activitythat may go against… the soundcustoms of the population.”5

However, this principle ofdistinction is much narrower thanthat conventionally conceived inIHL and tends to label any formof collaboration with ‘the enemy’as removing the person’s rightto protection as a ‘civilian’.

The extent to which IDP returnsare addressed by the insurgents’

Colombia provides an instructive case-study of the relationship betweennon-state armed groups and the forced displacement – and return – ofcivilian populations.

The Colombian guerrilla, forced

displacement and returnDavid James Cantor




F M R 3 7

internal regulations correspondsdirectly to the manner in whicheach perceives its relationship toIHL. Thus, arguably extendingArticle 17 of AP2, the UC-ELN’sCode of War places no qualicationson its blanket prohibition offorced displacement: “The civilianpopulation will not be forciblydisplaced from combat zones.”

Similarly, in its Heaven’s GatewayAccord signed with prominent civicsociety representatives in 1998,the UC-ELN made far-reachingpledges regarding IDPs: “[We]will promote and support [IDPs’]organisation and interlocution indefence of their legitimate interests

and needs, especially in safereturn…” [emphasis added]

By contrast, the FARC-EP internalregulations appear to omit anydirect reference to the issue of forceddisplacement, and neither guerrillaorganisation has incorporatedthe UN Guiding Principles onInternal Displacement into theirinternal regulations. In any event,such internal regulations presentonly an incomplete picture ofthe Colombian guerrilla groups’relationship to the IDP phenomenon.

Guerrilla practice and returnsIn general, the guerrilla groupsappear highly receptive to the returnof IDPs. This is clearly implied bythe UC-ELN regulations. Moreover,the FARC-EP has even sought outrural populations displaced inurban centres and either encouragedthem or, in some instances, orderedthem to return. This approach isconsistent with its political rationale

as a protector of peasant interestsas well as humanitarian concerns but is also supported by militaryconsiderations. For example, evenin zones under dispute, the strategic benets of having a known civilianpresence in a rural area wouldoen appear to outweigh theaendant risks for the guerrilla.

Both guerrilla groups imposerestrictions upon the movement ofpersons in rural zones as a maerof practice. Yet returns representa particular risk for the guerrilla because of the possibility that theIDPs have become informantsduring their exile in the urbancentres controlled by the state’s

armed forces and/or paramilitaries.To manage these risks, the guerrillagroups tend to impose one or moreof the following conditions:

■■ Prior permission from theguerrilla must be given forthe return to take place.

■■ Returns accompanied by thestate’s armed forces or byparamilitaries are prohibited,although the presence of certaincivilian state institutions issometimes permied.

■■ Strict timelines are establishedwithin which IDPs must return.

■■ Returning IDPs must agreeto further restrictions on theirmovements, either to remainin the zone or to reduce thefrequency of visits to urban areas.

■■ Where necessary, the guerrillaorganisations enforce returningIDPs’ compliance with theseconditions through coercivemeans, including the strategicuse of anti-personnel mines.These same coercive meansunderpin the ‘law’ and ‘justice’systems that the guerrillagroups oer to these remote andoen isolated communities.

Safety in return: IDP strategiesIDPs seeking to return to theirhomes in the rural zones of Colombiaoen face the reality of continuingtensions between the guerrillaorganisations and the armed forcesof the state or other NSAGs. Eachof these seeks to place a competingrange of demands on those former

inhabitants who wish to return.Yet returning IDPs do not respondpassively; rather they are actors intheir own right who oen aempt tomanage, through particular practicalstrategies, the risks posed to theirsafety by the imposition of thesecompeting frameworks of control.

Some IDPs return to their homes asa result of a failure to integrate inthe cities and lack condence in theability or willingness of the stateto protect them. Seeking out theguerrilla group and requesting itspermission to return home may bethe only plausible strategy for manypoor peasants, particularly wherethe guerrilla presence in the rural

zone is strong. Nonetheless, thisimplies the necessity of acquiescingto conditions that the guerrillagroup may impose and may exposethem to the risk of retaliation byother parties to the conict.

There are also IDP communities thattry to ensure their safe return byseeking the protection of the state’sarmed forces. Where the armed forceshave a strong presence in the region,permanent accompaniment of thesecommunities is sometimes provided.This deters direct and sustainedguerrilla aacks against villagecentres where the armed forces are based. However, the eect ivenessof this deterrent diminishes outside

the village limits (e.g. in elds andon access roads) and aacks arenot uncommon. Moreover, theperception of ‘collaboration’ by thecommunity makes it a military targetfor the guerrillas. Thus proposalsfor temporary accompaniment ofreturns by the armed forces are notmerely ineective but can be highlydangerous for returning IDPs.

Other IDPs seek to guarantee theirsafety by avoiding the possibility ofperceived ‘collaboration’ with anyparty to the conict. Some simplytry to avoid contact with them, as forexample in ‘labour returns’ wherethe IDPs go to work their rural landsduring the day but return to theurban centres by nightfall. However,others take a more sustainableapproach, and make separate butdirect approaches to all of the partiesto the conict in order to requestthat they respect the decision of thecommunity not to collaborate withany of them. I encountered examples

of this strategy in ve of the sixregions where I worked. Althoughthe strategy is not new or exclusiveto returning IDPs, the context ofreturn appears to give IDPs greaterleverage in securing the respect ofrelevant parties to the conict. Insome instances, this was because both the guerrilla groups and otherparties to the conict desired thatthe return should take place.

Role of humanitarian agenciesCertain agencies – such as theInternational Commiee of the RedCross and the Catholic Church –have fullled an important functionthrough their interlocution, on purelyhumanitarian grounds, with the




F M R 3 7

guerrilla groups and other partiesto the conict in order to preventthreatened forcible displacementsand to secure guarantees for the safereturn of a person or a community.The international communitycould further facilitate such work by requesting the Colombiangovernment to formally armthat such contacts do not usurpthe presidential prerogative tonegotiate peace with NSAGs.

In zones where control is hotlycontested, such agencies can alsoplay a key role in supporting thosecommunities of returning IDPswhich seek to ensure their safety byrequesting all parties to the conict

to respect their civilian character.To be successful, this strategyusually requires the active supportof respected external agencies tohelp the community maintaina) the high degree of internalorganisation necessary to present aunited front to the armed actors, b)

separate and direct communicationchannels with all local parties to theconict, and c) plausible economicalternatives to involvement inthe coca-economy or other illegalactivities which may compromisethe ‘neutrality’ of the community.Although this strategy may oer the best hope of sustainable protectionfor returns to highly disputedterritories, the protection it oersis fragile and requires constantwork if it is to be maintained.

Conclusion

It is important that NSAGs involvedin internal conicts are not viewed asmerely an impediment to the returnof IDPs. Rather, pragmatic ways of

engaging the particular interestsof such NSAGs, and supportingthe practical protection strategiesof local communities, must also be pursued in order to ensure thehighest levels of respect possiblefor vulnerable civilians caught upin complex and protracted wars.

David James Cantor (david.cantor@

sas.ac.uk) is a Lecturer in International

Human Rights Law at the Institute of

Commonwealth Studies, University

of London (http://commonwealth.

sas.ac.uk). His forthcoming book

The Return of Internally Displaced

Persons: International Law and its

Application in Colombia is to be

published by Martinus Nijhoff in 2011.

1. Consultoría para los Derechos Humanos y elDesplazamiento (CODHES), ‘Salto Estratégico o Saltoal Vacio’ (27 January 2010) hp://www.cohes.org. Thiswould appear to be in addition to the nearly half amillion Colombian persons of concern to UNHCR inneighbouring countries.hp://www.acnur.org/crisis/colombia/paisesvecinos.htm

2. This doctoral research was generously supported byThe Leverhulme Trust, the Arts and Humanities ResearchCouncil, and the University of Essex.

3. Human Rights Watch, War Without Quarter: Colombiaand International Humanitarian Law (1 October 1998).hp://www.hrw.org/legacy/reports/reports98/colombia/

4. Comandante Manuel Pérez, ‘Declaración Pública’ 15 July 1995, reproduced in Agenda Ciudadana para la Paz,Conversaciones de paz frente al horror: acuerdos humanitarios (Mandato Ciudadano por la Paz, la Vida y la Libertad,Bogotá 1998), 57-64.

5. Corporación Observatorio para la Paz, Las verdaderasintenciones de las FARC (Intermedio, Bogotá 1999) 168-169.

Yenis and Grimaldo still miss the home they were forced to ee in El Salado, northern

Colombia, in 2000. “Now there is nothing in that place, only vegetation,” Grimaldo says.

Argemiro walks the streets of Cartagena for hours every

day, selling his hand-made brooms and mops.

A l l p h o t

o s U N H C R / Z a l m a ï

This displaced father and child had never been out of their region and now

have to adapt to a big city. Henry, 44, earns money recycling garbage.

Displaced twice by Colombia’s violence, Eliécer is now the leader of 118 displaced

families in Cartagena, helping them assert their rights. He would never go back to his

home area. “One of my friends returned two years ago. He was killed soon after that.”




F M R 3 7

This article presents advice given by internally displaced persons(IDPs) on how they themselvesneed to behave in order to surviveunder non-state armed groups’(NSAGs’) control – which in turnhas implications for how externalactors should behave. The advice isdrawn from more than 100 interviewsconducted in 2007 and 2008 withIDPs seled in a shanty town on

the outskirts of the Colombian cityof Cartagena. Contradictions in the‘rules’ below show that there is nouniform or right way to survive; anapproach that works in one situationmight be unwise in another. Theten rules are listed here under fourmodes of behaviour: passivity,invisibility, obedience and mobility.

PassivityIn a situation where an illegalarmed actor is controlling the localpopulation and imposing orderthrough terror, not to talk, not toknow and not to see may be essentialcoping strategies.

Rule 1: Keep your mouth shut – yourneighbour might be an informer.“Back in the village you should onlymind your own stu and nothingmore”, explains one woman. Invillages under NSAG control, peopleneed to be careful not to shareinformation or express criticism– even to neighbours – because it

could reach the ears of the armedgroups and have repercussions.1 Not knowing whom to trust hasa detrimental eect on socialrelations. When it is no longerpossible to know who has madealliances with the militias, or whois an informer, mistrust creeps in,ending all social life. One localleader recalls how social relationsdeteriorated when the paramilitariestook control of his home region:“Then you no longer talked to theother person, to the friend….” “Itwas turned into a village of fear”,another interviewee recalls.

Rule 2: Close your door, stayinside and watch television.

Follow the soap operas, watch thenews and keep the door closed inan aempt to block out the atrocitiesunfolding outside. Particularly foryoung women, another reason toremain inside is to avoid rape. Sexualviolence has been a systematic andgeneralised practice by NSAGs inColombia in order to instil terrorin the population. The house wasconsidered by many the only safe

place; venturing outside involvedthe risk of running into the armedgroups, being caught in cross-re oraccidentally witnessing something.To remain inside and close your dooris thus also a way to avoid witnessinga violation or an atrocity. As longas you have not seen anything youdo not know what happened.

InvisibilityInvisibility implies to duck andhide, to melt into the rest of thepopulation and avoid actionsthat can draw aention to you.Certain daily activities should be restricted or abandoned buttotal invisibility is never possiblesince everyday life has to go on.

Rule 3: Stay out of trouble.“In my community the guerrilla[le-wing militias] kept order”,one local leader explains; theypunished troublemakers andacted as the rural police – alwaysready to intervene as the de facto

armed authority. “When the localcommiee held meetings, they [theguerrilla] would always stand atthe back of the room, and whenwe had nished they would givetheir own speech”, he recalls. Thepopulation has to adjust to the rulesand norms put in place by the armedactors, and face any punishmentsmeted out for transgressing them.

Rule 4: Avoid social and politicalinvolvement.Among the local communities,people engaged in social and politicalactivities and with key communityfunctions – such as school teacher orpriest – are at particular risk of beingtargeted by NSAGs. When an area

falls under control of a new NSAG allexisting political power-holders areregarded as loyal to the enemy, andthe NSAG seeks to exterminate them.In order to get rid of all oppositionthe armed groups also targetpeople whom they believe play anyorganising role. One older man whohad held an administrative post in hisvillage le almost immediately whenthe paramilitaries moved in becausehe knew that they “didn’t want toknow anything about politics”. Thusfear undermines social activism in

aected communities.

Rule 5: Don’t go out aer dark.In Colombia night falls around6pm and the sun rises around 6am.Sometimes a night-time curfew isimposed by NSAGs but at timesavoiding going outside in the darkis a self-protective measure adopted by people. This is motivated bythe perception that most ‘badthings’ (robberies, assassinations,assaults) take place in the dark; youcould be caught in cross-re or beapprehended. Moreover, remainingindoors is also a strategy for notaccidentally witnessing an atrocity.A night curfew deeply aects both social life and the unfoldingof everyday livelihood activitiessuch as shing or hunting at dusk,walking to and from the elds orthe village at dawn, or meeting upwith neighbours socially aer work.

ObedienceObedience implies following the

rules and orders of the NSAGs – arst step towards securing survival.However, obeying the orders ofone group is inevitably perceived by their adversaries as supportingthat group. And in obeying, theprinciple of passivity is violated.

Rule 6: Go to the meetings butdon’t look as if you are scared.The NSAGs oblige the localpopulation to aend meetings.One from each household has to be there and the task oen falls onthe women. At the meeting peoplereceive warnings and are informedabout policy, rules and regulations.An o-repeated phrase is “el quenada debe, nada teme” – if your

Humanitarian actors would do well to listen to IDPs’ advice when planningassistance for those affected by the presence of NSAGs.

How to behave: advice from IDPsStine Finne Jakobsen




F M R 3 7

conscience is clean you have nothingto fear, hence the injunction tonever look scared at meetings.

Rule 7: Always do or give them whatthey ask.When NSAGs control a village theyrequire the population to complywith certain injunctions – such askeeping roadsides clear, keepingfarm animals locked up, and servingcoee, water or meat to combatants.The groups may also conscate assetssuch as livestock, boats and vehicles,or demand that people pay protectionmoney. Inability or unwillingnessto comply could lead to violentretaliation, and the only option forsurvival may be to leave: “We le

due to fear and a lot of pressure fromthe paramilitaries, because we didn’thave the money to pay the protectionmoney they asked of us”, one mansays. Civilians living in areas underdispute are in a particular vulnerablesituation. If, for example, a familycomplies with one NSAG’s demandfor food, they risk being accused at alater date by another group of beinga collaborator. This puts considerablepressure on families. There is noway to escape a demand for foodor shelter, one woman recalls: “Youhave to do it – you don’t want themto kill your children.” There may be situations where people decideto disobey orders but as that ispractically signing one’s own deathwarrant, the only option le forsurvival is immediate escape.

Rule 8: If the armed actors accuseyou of something, don’t think youcan argue or prove your innocence.If an individual is accused – whetherrightly or not – by the NSAG of

having done something, rapidescape may be the only option.At times people receive a directpersonal warning, either through atext message or by word of mouth,and thus have some time to leave.Collective warnings of a coming‘social cleansing’ may lead to theexodus of an entire community. Attimes lists are hung up in publicplaces with names, nicknamesand professions of targets.

MobilityIn wartime, mobility is restrictedand regarded as suspicious by armedactors and groups. Unnecessarymovement should be avoided – butmoving away can be the ultimate

solution to secure survival throughanonymity in an urban seing.

Rule 9: Avoid all unnecessarymovement.Many interviewees talk about howmobility was severely restrictedin the communities. Roadblockswere common; local transportwas oen stopped and – to send astrong signal of power – passengerswere routinely dragged out ofvehicles and arbitrarily killed. Fornational government forces andNSAGs, dominating an area impliescontrolling and registering allmovements of people and supplieson the road system or river basins.People with livelihoods requiring

mobility are natural targets,suspected of bringing informationor supplies through to the enemy.Thus a driver or a travelling salesmanmay be considered ‘involved’ andtherefore targeted. For peopleliving in remote hamlets, regularactivities such as going to thevillage for supplies meant riskingone’s life. Some communities haveexperienced total connement,resulting in scarcity of food andmedicine, or have experienced rigidrestrictions on all movements andon the amount of food they couldpurchase and bring into the area.2

Rule 10: If you leave, nevercome back.Most IDPs say they will never return,recognising that, for the armedactors, leaving equals running awayand is interpreted as motivated by‘involvement’ and guilt. Moreover,when people leave an area they mustmove to another place where the localNSAG is not able to nd them. Most

oen they head for urban areas wherethey can melt into the anonymity ofthe city. And here they stay. Returnis not considered viable as long asthe NSAGs are still present; even ifan area has been freed from NSAGsmany people still avoid returning –fearing that the NSAGs might alsoreturn one day or that they maymaintain surveillance of the areaor that they may have demobilisedand are now living as civilians.

Advice for external agenciesHumanitarian actors most oen comeinto contact with the aected civilianpopulation aer they have le theirarea of origin. However, if theyseek to support people living under

NSAG control such agencies woulddo well to listen to the IDPs’ adviceand bear in mind the following– again, in places inherentlycontradictory – recommendations:

■■ Expect to meet silence: due tofear of retaliation from NSAGs,people cannot voice complaintsand express their distress.

■■ Expect to meet social isolationand fragmentation.

■■ Meetings may have acquireda particular – negative –connotation for people.

■■ People live under constant threatof coercion by NSAGs and aiddistributed to civilians may well

be commandeered by them.

■■ Contact between the populationand external actors may beconsidered threatening byNSAGs and may thereforeplace civilians at great risk.

■■ Local people recruited as sta by external agencies acquireenhanced visibility and mayrun particular security risks.

■■ Aempts to organise thepopulation are very risky, and

local leaders are oen the rstones targeted by NSAGs.

■■ It may be impossible to predictwhich actions or interventions areconsidered problematic by NSAGs.

■■ Curfews and generalised feardisrupt regular livelihoodactivities and food aid may be greatly needed.

■■ Severe restrictions on mobilitymay impede bringing suppliesinto NSAG-controlled areas.

■■ Once people leave an area asinternally displaced it is veryrisky for them to return.

Stine Finne Jakobsen ([email protected]) is

a researcher at the Rehabilitation

and Research Center for Torture

Victims (RCT), Copenhagen, Denmark

(http://www.rct.dk). She is currently

nalising her PhD research project

on social processes of survival

among IDPs in Colombia.

1. Many of these ‘rules’ apply to state armed groups,as well as to non-state armed groups, in particular indisputed areas.

2. See 2004 publication on conned communities fromthe Project Counselling Service in Bogotá: hp://www.pcslatin.org/public/connamiento_esp.pdf (Spanish only)




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Somalia has for many years beenknown as the classic example of afailed state and illustrates clearlyhow dicult it can be to restore stateinstitutions aer their total collapse.Prolonged civil war, famine andpoverty have caused a humanitarian

crisis with large ows of IDPs and anestimated 3.2 million people in needof humanitarian assistance.1 Yet whileincreasing numbers of the populationare in urgent needof assistance, access by internationalagencies to providerelief has becomemore dicultas a result ofpressure fromnon-state armedgroups (NSAGs).

Since the fall ofSiad Barre’s regimein 1991 variousself-appointedadministrationshave aempted toseize power – anddeclare autonomy– in dierent partsof the country. Mostwell known, thoughnot internationally

recognised, is Somaliland to thenorthwest. As humanitarian spacehas been shrinking in south-centralSomalia, agencies have reorganisedtheir operations to run from therelatively stable areas of Somalilandand, to some extent, Puntland inthe north. Yet south-central Somaliaremains the region where most ofthe IDPs and population in acuteneed are situated and, while thediculties for humanitarian agenciesin negotiating access with NSAGsin the capital city Mogadishu arewell known, it is not representativefor all of south-central Somalia.

Where NSAGs form localadministrations, they become one

of the duty bearers towards thepopulation, including IDPs. Andwhen these administrations areviewed as legitimate among thepopulation, they become importantpotential partners. In the townof South Galkayo, some 450 km

north of Mogadishu, an NSAGcalled Ahlu-Sunna Wal-Jamaa isin control. Here, in contrast to itsexperience of trying to facilitate

safe return for IDPs to Mogadishu,the Danish Demining Group (DDG)has had a positive experience notonly of obtaining access but alsoof engaging in partnership with both the communities and theself-appointed administration.

A pragmatic approachEngaging with NSAGs in buildinginstitutions to ensure civiliansecurity can be controversial butcan also be necessary in cases likeSomalia where no central state powerexists or is likely to do so in the nearfuture. The prolonged civil war andhigh levels of insecurity in Somaliahave created an urgent need forinitiatives to reduce armed violence

in order to create an environmentwhere development can take place.Experience from working in SouthGalkayo supports the argumentthat the approach to stabilisation inSomalia needs to explore community-driven processes rather thanlarge-scale and highly politicisedstabilisation eorts that have so farproven counter-productive. Buildingsafety at the community level needs

to follow humanitarian principles:placing the need of the populationat the centre, while not promotinga political agenda. This may even

mean engagingwith NSAGsin cases wherethey have somelegitimacy withinthe populationand prove willingto adhere tointernationalstandards ofhumanitarian law.

South Galkayo is thecapital of GalmudugState, a self-declaredadministrationfounded by clanelders and theNSAG Ahlu-Sunna Wal-Jamaafollowing the defeatof the Mogadishuwarlords in 2006.

The town of Galkayo is situated onthe border of Puntland and south-central Somalia and is split northand south under the Puntland andGalmudug State administrationsrespectively. Ahlu-Sunna Wal-Jamaais the overall security provider inSouth Galkayo and has managedto improve security in the areaadministrated by Galmudug State.Compared to other regions insouth-central Somalia, the areaunder the control of GalmudugState has enjoyed relative stabilitysince 2006 and has aracted peopledisplaced by conict from otherregions. While the relationship between the host communities inSouth Galkayo and the IDPs has

Non-state armed groups are often considered to lack legitimacy aspotential counterparts in building security institutions but when they are infact in control, this point of view has to be reviewed.

Community-led stabilisationin SomaliaSiris Hartkorn

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previously been good (mainly dueto clan loyalties), the risk of tensionis now increasing as the growingnumber of IDPs puts pressure on thecommunities’ limited resources.

Galkayo is of great strategicimportance as it represents one ofthe few pockets of relative stabilityin Somalia, from and in whichinternational organisations canoperate. Yet most organisations selein North Galkayo under the Puntlandadministration, a move that hasfuelled a feeling of marginalisation inSouth Galkayo. DDG is one of the feworganisations that have explored thepossibility of access in South Galkayo by starting up community safetyprogrammes in two communitiesthere, Dalsan and Alanley, in 2010.

Community safety is a boom-upapproach to stabilisation where

the communities themselves havestrong ownership of the process.External as well as internaldynamics of crime, armed violenceand clan conict combined withthe very limited resources withinthe communities make stability inSouth Galkayo very fragile and thereis an urgent need for sustainablesecurity solutions. GalmudugState is pursuing statebuildinggoals in their region but lacks thecapacity and resources to createsecurity and development withoutexternal assistance – and is thereforeactively seeking partnershipswith international organisations.In contrast to al-Shabaab, Ahlu-Sunna Wal-Jamaa does not oppose

international agencies which receivefunding from Western governments.This is partly due to the make-upof the NSAG, which is funded onclan structures rather than religiousdiscourse, and partly becauseAhlu-Sunna Wal-Jamaa works inalliance with the Transitional FederalGovernment. DDG is workingwith Galmudug State to addressall aspects of armed violence and bring together members of dierentcommunities to identify and developsolutions to their safety and securityneeds, through development andimplementation of a communitysafety plan. Such communitysafety projects aim not only toimprove the immediate securitysituation but also to strengthenthe target communities’ capacityto resist being drawn into conictand to improve any individualor group behaviour which might

contribute to triggering conict.

Community safetyMore than 50% of the householdsin DDG’s two target communitiesreport owning at least one rearm,and accidents related to small armsand light weapons (SALW) remainamong the highest security concernsin the two communities. DDG’sprogramme involves installingsafe storage devices2 for small armsand light weapons and clearingunexploded ordnance, and byproviding education on the risks ofmines and training in rearm safety behaviour. Another big securityconcern in Dalsan and Alanleyis communal and clan conict.

Here DDG seeks to strengthen thecommunities’ capacity to manageconict and nd peaceful selementsto disputes, e.g. through conictmanagement education. As IDPs arenew-comers to the communities,they oen become vulnerable whenthere is conict; strengthening therelationship between IDPs and thehost communities by involving both groups in the communitysafety process, and therebycreating common ownership, istherefore of high importance.

Crimes of rape, the, assault androbbery are also of great concernwithin the two communities.Such crime can not only aect the

safety of the population but canalso be potentially destabilising –for example, by sparking revengekillings and conict between clans,families or north/south population.3 Traditional leaders lack the tools toaddress these new criminal trends;what is needed is an eective policeforce that the communities trustto solve crime and sele disputes.Galmudug State has recently trained325 police ocers to be employedin South Galkayo but with 38% ofhouseholds reporting that theywould still go to clan leadersconcerning a crime, rather than tothe police, the relationship betweenpolice and the communities clearlyneeds to be strengthened. DDG hashelped establish community-basedpolicing commiees, which functionas a link between the two. DDG isalso engaged in discussions withGalmudug State to identify otherways of supporting the buildingof formal security institutions,such as training the police force

in human rights principles.

There are many challenges associatedwith providing capacity buildingand assistance for a police force thatis institutionally anchored withinan NSAG rather than a recognisedgovernment and this has to be donewith certain considerations in mind.In the context of Galmudug State,the main challenges are the lack ofcapacity within the administrationand the diculty of steppingoutside clan structures in order to build independent, accountablestate institutions. DDG’s decisionto engage in partnership withGalmudug State was possible becauseof the high level of legitimacy

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The role of these armed groupsand the consequences of theiractions on the welfare of civilianshave all been extraordinarilynegative. Unfortunately, theaccountability of these groups forcivilian protection has been largelyignored while their notoriety has

more to do with Western concernsover terrorism, piracy and securitythan the protection of civilians.

The occasionally contradictorystrategies employed by regionalactors and the internationalcommunity have so far concentratedon boosting the legitimacy andcapacity of the Transitional FederalGovernment (TFG); designatingand isolating the militants as‘terrorist’ groups; expandingprovision of humanitarian assistanceeven if that means working withnetworks and groups which violatecivilians’ human rights; andseeking to re-establish peace andstability including by supporting

the edging African Union’speacekeeping mission in Somalia(AMISOM). Recently, however,some of these actors have takensome steps – albeit fragmented andlimited in scope – to focus on theprotection of civilians includingthose uprooted from their homes.

The ongoing conict between groupssuch as al-Shabaab and Hizbul Islamon the one hand and the weak TFGand its military allies on the othercontinues to cause the death ofnumerous civilians and to displacehundreds of thousands of civiliansfrom their homes and livelihoods.For example, in January 2010 over25,000 civilians were displaced byghting over the control of the townof Beledweyne in central Somalia.

While they are not the onlyguilty party, al-Shabaab has beenparticularly brazen in its use ofcivilians as human shields; recruitingchildren and young persons;

suicide missions; aacking andshelling civilian areas; exactingextreme forms of shari’a penaltieseven for minor oences; aackingand intimidating journalists,humanitarian workers andpeacekeepers; and imposing unduerestrictions on humanitarian access.

The UN and other humanitarianorganisations run their operationsfrom outside Somalia, mainlyfrom Kenya, relying heavily on

nationals for the actual delivery ofaid within Somalia. According tothe former Special Representativeof the Secretary General (SRSG)on the human rights of IDPs,this approach has resulted in adisproportionate exposure oflocal sta to danger and remainsunsustainable in the long run.

Though the autonomous regionsof Somaliland and Puntland had been spared from some of the worstviolations by armed groups, they arenow increasingly being inltrated bymembers of armed groups, triggeringa phenomenon of forced return ofIDPs by authorities who fear thatal-Shabaab forces are hiding among

For 20 years armed groups have been permanent xtures of the conictsin Somalia and have been direct participants in human rights andhumanitarian law violations. Now there are some international moves tohold them to account.

Al-Shabaab’s responsibility toprotect civilians in SomaliaAllehone Mulugeta Abebe

that Galmudug State and Ahlu-Sunna Wal-Jamaa hold within thepopulation, and their willingness todiscuss human rights standards andinternational humanitarian law, apotential that can only be exploredthrough partnership and dialogue.

Integrating armed violencereduction and developmentArmed violence is one of the majorobstacles to development andtherefore development initiativesneed to be linked to reducing armedviolence. In an aempt to link thetwo processes, DDG and the DanishRefugee Council (DRC) havedeveloped an integrated approach toCommunity Safety and Community

Driven Recovery and Development.In South Galkayo as well as otherplaces across Somalia, both DDG andDRC are present and, when possible,

work alongside each other to engagecommunities to take ownership of theprocess of both improving safety andpursuing development goals.

In the Somali context this integratedapproach has been successful,fostering sustainable change in thetarget communities. With UNDPand JPLG (UN Joint Programme onLocal Governance and DecentralisedService Delivery)4 exploring a similarintegrated approach at the districtlevel in Puntland and Somaliland,there seems to be an increasinginternational recognition that armedviolence reduction and developmentneed to go hand in hand.

Siris Hartkorn ([email protected])is Advisor to the Danish Demining

Group, DDG, Horn of Africa (http://

www.danishdemininggroup.dk).

DDG is part of the Danish Refugee

Council. For more information about

this programme, please contact

Klaus Ljoerring Pedersen (klpc@

drc.dk), DDG Regional Director,

Horn of Africa and Representative

for Armed Violence Reduction.

1. Bradbury, Mark State-building, Counterterrorism, andLicensing Humanitarianism in Somalia, September 2010,Feinstein International Centerhp://tinyurl.com/TusBradburySept2010Somalia

2. Device for keeping the weapon locked and storedsafely to avoid the and accidents (see picture opposite).

3. ‘Community Safety & Security Analysis andRecommended Actions for Galkayo District, SomaliCommunity Safety Framework, forthcoming 2011at hp://www.somalipeacebuilding.org The SomaliCommunity Safety Framework is a partnership of localand international NGOs, UN agencies and academicinstitutions seeking to advance community security inthe Somali regions.

4. UN JPLG for Somalia is a ve-year joint programmeof ILO, UNCDF, UNDP, UN-HABITAT and UNICEF.The partners in the Joint Programme are the Somalia

government institutions, Regional Councils, DistrictCouncils, Legislatures, Municipal Associations,international and local NGOs/CSOs, and the privatesector. hp://jplg.org




F M R 3 7

displaced persons. These groups arealso seeking to expand their horizonsoutside Somalia, increasinglyrecruiting the Somali diaspora.

Sanctions and accountabilityIn April 2010, the UN SecurityCouncil designated al-Shabaabfor targeted sanctions for itsobstruction of humanitarian aid.UN Security Council Resolution1844, adopted in November2008, had expanded the armsembargo with targeted sanctionsagainst those who impede andobstruct delivery of humanitarianassistance. The Somalia SanctionsMonitoring Group has presented alist of individuals and entities to be

considered for targeted sanctions.

Designation of such groups asterrorist organisations and theimposition of sanctions includingfreezing of their assets have specicoperational consequences foraempts to extend ‘humanitarianspace’ through engagement withthese groups. There are numerousinstances where al-Shabaab hasasked humanitarian organisationsto sign agreements which wouldallow the laer to distribute aid;such a relationship, however, mayrisk the use of aid for politicalpurposes and undermines eortsat accountability for abuses. On 19March 2010, the UN Security Counciladopted Resolution 1916 liingrestriction on funds “necessaryto ensure the timely delivery ofurgently needed humanitarianassistance in Somalia”. This wasdone to ensure that humanitarianoperations in areas under thecontrol of al-Shabaab and Hizbul

Islam are not construed as violatingUN sanctions if humanitarianorganisations are forced to makepayment to the insurgents.

There are a number of developmentstaking place to impose some sort ofaccountability and responsibility onarmed groups in Somalia, includingal-Shabaab. Among these are therevival of discussions on Somaliaat the Human Rights Council; thestrengthening of the role of theIndependent Expert1; the Oce ofthe High Commissioner for HumanRights (OHCHR)’s plan to documenthuman rights violations; thedecision of the African Commissionon Human and Peoples’ Rights

to conduct a fact-nding missionto Somalia; increasing aentionto civilian protection by the UNSecurity Council and the Peace andSecurity Council of the AfricanUnion; the possibility of transnational justice and accountabilitymechanisms through an internationalinquiry or a possible role by theInternational Criminal Court; andthe inclusion of accountability andimpunity in current discussionson constitutional arrangementsfor Somalia aer the TFG.

Recently, the Security Council has been further rening and buildingon these measures. In 2010, forinstance, it held a “stand-alone

interactive dialogue” on humanrights situations in Somalia which brought together the SRSG onSomalia, the Independent Expert,representatives of UN agencies, ofgovernments, and of the TFG andAMISOM.2 The outcome of thedialogue included the adoption of aresolution condemning the aackson civilians, humanitarian workersand peacekeepers by al-Shabaab andHizbul Islam; expressing concernover the plight of displaced personsuprooted by the conict; calling for a beer accountability mechanism; andurging closer cooperation betweenthe SRSG and the IndependentExpert.3 OHCHR recently announcedthat it will work on documentinghuman rights violations including by these militant groups.

All regional and internationaleorts in Somalia have sought toaddress the issue ofimpunity but with verylimited success. It is

included as an issueto address within theinternationally fundedconstitution-formingprocess but so fardomestic accountabilitymechanisms havenot produced anyconcrete outcomes –and there is lile hopeof solutions from theinternational criminal justice establishmentin a context where thenational frameworkis extremely weak.The need to addressimpunity should remainan important component

of the new constitutional debate asa reection of political commitmenton the part of the stakeholders.

ConclusionsThough all parties to the protractedconict in Somalia have beenimplicated in violations of humanrights and humanitarian law, thearmed groups continue to engagein egregious abuses that haveclaimed numerous innocent livesand led to the displacement ofhundreds of thousands of civilians.These groups threaten and directlyaack humanitarian organisationsand peacekeepers. They have alsorestricted humanitarian assistance by limiting the operation of

humanitarian organisations andeven expelling them from Somalia.Holding al-Shabaab and its alliesaccountable for these violations has been extremely challenging butrecent developments appear to oerconcrete opportunities to highlightal-Shabaab’s failure to ensureprotection of civilians and to furtherrene the tools for accountability.

Allehone Mulugeta Abebe (allehone@

gmail.com) is a doctoral researcher

at the University of Bern, Switzerland.

Opinions expressed here are those

of the author and do not necessarily

reect the views of organisations

with which he is afliated.

1. Appointed by the UN Secretary-General on thesituation of human rights in Somaliahp://ap.ohchr.org/documents/dpage_e.aspx?m=48

2. Stand-alone interactive dialogue on Somalia, 29September 2010. See h p://www.ohchr.org/en/countries/africaregion/pages/soindex.aspx.

3. Human Rights Council, Resolution 15/28, Assistance toSomalia in the eld of human rights, 7 October 10.

Sheikh Omar IDP camp in Jowhar, Somalia.




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Aer 20 years of war, Harakat al-Shabaab1 is the dominant militaryforce in opposition to the UN-backedgovernment in Mogadishu and theAfrican Union military forces thatsupport it. Promoting the vision of

the ummah , a unied Islamic stateunder shari’a law, al-Shabaab aracts both popular support and scathingcriticism among Somali peoplewithin and outside the country.Al-Shabaab is considered boththe instigator of ongoing conictand also the most viable means topeace. And al-Shabaab’s vision ofIslam over tribalism unies thosewhose displacement may have beencaused by this organisation itself.Yet while the military presence ofal-Shabaab is concentrated withinSomalia, its capacity is directly linkedto the global ow of remiancesand particularly the Kenyanneighbourhood of East Leigh.

Located just outside Nairobi’s central business district, East Leigh is a well-known economic and communitycentre for displaced Somalis. Over thelast twenty years, this neighbourhood

has moved from being a lowermiddle-class

Nairobi suburbinto a bustlinghub for commerceand an importantconduit for theow of remiancemonies. Theremiance owthrough East Leighis primarily fordisplaced Somalisliving in Nairobi,the Dadaabcamps in Kenya’sNorth EasternProvince, andfamily memberswho remainwithin Somalia.2

It is well known throughout EastLeigh that al-Shabaab utilisesincoming remiance ows to fundits operations in Somalia and hasdirect nancial involvement withmany of the businesses in East Leigh;

indeed, the majority of shops and businesses are thought to be owned by or aliated to al-Shabaab. Manyof the shops also sell al-Shabaabpropaganda videos produced bylocal East Leigh studios. In thisway al-Shabaab can advertise theirmessage, provide revenue to local businesses, and reinforce theirposition within the community.

Al-Shabaab provides opportunitiesand support to the residents of EastLeigh while indoctrinating members by more than the mere ownershipof shops and tea stalls; they alsoinvest large sums of money inthe construction and operation ofmosques within East Leigh to aractthe support of religious clerics. Byinuencing the preaching withinlocal mosques, al-Shabaab promotesthe idea of a Somalia founded onIslamic principles rather than onpolitical or tribal aliation.

School programmes that promote

al-Shabaab within their teachingmay also receive monetary ormaterial support. Some of theschools supported by al-Shabaabeven provide children with schooluniforms modelled on al-Shabaabuniforms.

Although, surprisingly, the benetsoered to newly recruited youthare minimal, young men in EastLeigh continue to join al-Shabaabin response to, among other things,indoctrination, poverty and lackof opportunity. Unfortunately,al-Shabaab rarely provides thenecessary or desired support to theseoen vulnerable young men, as theorganisation considers membership

a nationalistic duty in order to saveand unify the nation of Somalia.

The most obvious negative eectof the al-Shabaab presence withinEast Leigh is the level of censorshipfelt by the displaced community.Within some areas young womenmust fully cover themselves. Thepresence of censorship is feltamong men as well; as it is oen

dicult to determine who inthe community is an al-Shabaabmember, individuals are carefulnot to say or do anything to drawunwanted aention to themselves.

ConclusionNot all Somalis share the visionof an aggressive Islamic state butthe possible end of violence, thereunication of the state under aSomali government and the vaguepossibility of return all maintain broad appeal. Al-Shabaab isconsidered a beer option for long-term peace than the UN-backedgovernment in Mogadishu whichis seen as nancially wasteful andsome fear that the current foreignsupport for the government maymean strong foreign inuence onSomalia in the long term. Mostimportantly, the success of al-Shabaab has become understoodas the opportunity for any man torise above the traditional restraintsof tribalism and a means to take up

new opportunities for a populationtired of the violence of war andthe frustrations of displacement.

Mitchell Sipus (mitchell.sipus@gmail.

com) is an independent researcher and

consultant (http://www.mitchellsipus.

com). He is a graduate from the

American University’s Center of Forced

Migration and Refugee Studies and

from the University of Cincinnati. Field

research was conducted in East Leigh,

Nairobi, Kenya, in October 2010.

1. Arabic for ‘young men’2. Lindley, Anna, 2007 ‘Protracted displacement andremiances: the view from Eastleigh, Nairobi’, NewIssues In Refugee Research. UNHCR hp://www.unhcr.org/46ea519d2.html

While the presence of non-state armed group al-Shabaab is primarilyconcentrated in Mogadishu and central Somalia, their inuence hasextended beyond the borders out into the lives of Somali refugees whosought to escape the violence.

Support for al-Shabaab throughthe diasporaMitchell Sipus

I R I N / M a n o o c h e r D e g h a t i




F M R 3 7

Non-state armed groups (NSAGs)in DRC have been implicated inperpetrating egregious humanrights abuses, particularly acts ofsexual violence, against civiliansfor more than two decades. Thesegroups range from organised

Congolese military units to smallgroups of armed militias fromRwanda and Burundi, to locallyorganised Mai Mai militias.Information emerging from theregion underscores the pivotal rolethese groups play in perpetratingviolence against civilians andprecipitating mass displacement.

Recent research conrms the highnumber of rapes conducted by armedgroups, citing between 54% and88% of all such aacks reported bywomen being perpetrated by NSAGcombatants.1 The number of armedgroups and the shocking levelsof violence beg the question as towhether we can beer understandhow NSAGs view violence,their motivations for ghting,and possible points of leveragefor improving their treatmentof civilians. Work by ElisabethWood reveals that NSAGs can behighly organised and governed by a wide range of principles and

motivations, suggesting that boththe perpetration of violence, as wellas restraint from using it, variesacross groups and conicts.2

Attitudes towards womenand sexual violenceMai Mai militia are a powerfulforce in eastern DRC and have beenimplicated in the looting, raping,abduction and mass displacementof civilians. Our study focused ontwo dierent sub-groups of the MaiMai – the Shikito and the Kifuafua.3

Interviews with Mai Mai combatantsrevealed that soldiers hold generallyhighly stereotypical and dismissiveviews of women. Soldiers interviewed

for the project describe women’sroles as cooking, cleaning, raisingchildren and undertaking smallcommercial activities or farming tohelp support the family. In contrast,men are seen as the protectors ofthe family and the decision makers.

Despite similarly rigid views aboutgender and the role of women,however, these two Mai Mai sub-groups seemed to dier in theiraitudes towards sexual violence.

Interviewees from the Shikitoconsistently denied that theyraped women. Soldiers cited bothideology – describing themselvesas the protectors of the populations– and pragmatic reasons for thisrestraint. One Shikito soldier said,“Rape is forbidden since we knowthat we are here to protect thepopulation.” Another intervieweesaid, “… [I]f one person from thegroup decides to rape, or a fellowsoldier rapes a woman, peoplewill say that the group of Mai Maiis raping women. It becomes aproblem for the whole group.”

On a more practical side, a numberof soldiers noted that rape couldundermine their grass-roots supportfrom host communities. Soldiers

described how vital communitysupport was for the Shikito. “Thereare women there who grow foodin their elds in the surroundingvillages; they assist us with food.”

In contrast, interviewees from theKifuafua were much more likely todescribe raping women, kidnappingthem for themselves or theircommanders, or undertaking rapefor individual reasons. Respondentsdescribed abducting women to be“given” to commanders as a spoilof war, noting how women weredistributed according to rank.“[The commander] will have his[girl] brought rst before he can ask

me to bring mine. …if you refuse,it becomes an open conict.”

Kifuafua interviewees did notdescribe relying on the goodwillof civilians for support. While both groups tended to portraythemselves as the “protectors” ofthe population, it was only theShikito who talked about this inpractical terms, citing the goodwill

of civilians as a condition for geingvital resources like food and shelter.

Soldiers within both groups saidthey had heard information aboutsexual violence from the radio,suggesting that soldiers may haveaccess to certain forms of popularmedia. Some soldiers also saidthey were aware of risks associatedwith sexual violence, both frompotential infection and potentialpunishment from commanders.While soldiers may have oered biased or amended versions ofwhat they actually believe, theconsistency of information acrossinterviews suggests a certain level ofreliability and provides insight intopossible points for intervention.

Leverage for changeThese results speak to the importanceof realising that NSAGs may diergreatly in their philosophies,practices, uses of violence, andaitudes towards the treatment

of civilians. Recognising thesediering aitudes and motivationsmay lead to more eectiveapproaches to protecting civilians.It is also important to recognisethat behaviours can change overtime and space, just as they canvary from unit to unit within thesame larger structure. For example,the aitudes of commanders andinculcation of soldiers about whatis and is not acceptable behaviourall play a role in creating a sub-culture within units of command.

Questions remain about how best toengage groups that, by denition,lie outside traditional structures oflaw and political inuence in order

A recent study sought to explore the internal dynamics of the Mai Maimilitia in eastern Democratic Republic of the Congo, and to consider whatfactors might be most inuential in restraining violence.

Militia in DRC speak aboutsexual violenceJocelyn Kelly and Michael Vanrooyen




F M R 3 7

When President Felipe Calderónlaunched his oensive against thedrug cartels in 2006, the cartels struck back viciously, murdering politicians, journalists and civilians andterrorising the Mexican people. Over28,000 people have been killed in thepast four years. While the situationhas captured aention in the USand internationally as a border-control and immigration issue, fewhave commented on the internaldisplacement crisis that the conicthas created in the border region.

More Mexicans are applyingfor political asylum in the USand Canada, and business visaapplications from Monterrey,Mexico’s industrial centre and

wealthiest city, rose 63% between2006 and 2010 compared to theprevious ve years. A much larger,and mostly uncounted, numberare being displaced internally.

Those eeing the violence areprimarily middle-class professionals(police ocers, business owners, journalists, etc.) from large or mid-sized cities who are either directlythreatened by the cartels or whosimply leave when the situation becomes unstable. Ciudad Juárezhas seen 10% (200,000) of itspopulation ee the city because ofghting between Mexican policeand military and the drug gangs.Unfortunately, while the Mexican

government accepts refugees andasylum seekers from South Americaand other nations, it has historicallypaid very lile aention to displacedindividuals within its own borders.For example, indigenous populationsdriven from their homes due todiscrimination and targeted violencehave received lile aention from theMexican government, and it currentlydoes not recognise the drug war as acause of displacement. The situationalso receives very lile aention fromthe media. As a result, there are noreliable gures for the number ofIDPs in Mexico and no incentive toassess the extent of the problem.

A number of experts contend thatcriminal organisations such as the

drug cartels in Mexico should bedened as non-state armed groupsas they are challenging the authorityof the Mexican government. Theyhave many of the same goals anduse many of the same tactics astraditional ‘political’ non-stategroups. Just as, for example, there aregroups in Africa’s Great Lakes regionwho ght for control of diamondsand precious metals, the cartels inMexico ght to control the drug-running corridors. However, they aredierent from politically motivatedarmed groups in that they are purelyprot-driven, and their strategy is todisable the state’s law-enforcementcapacity so as to make it easier tocarry out their il legal activities. This

makes it dicult, if not impossible,to approach them as one would otherNSAGs. They do not seek any formalrecognition or legitimacy, so they willnot respond to pressure to complywith international humanitarianlaw, nor can they be engaged indrawing up treaties. Their end goal(transporting and selling drugs) isillegal and inherently harmful, soocials cannot oer any concessionsregarding their activities.

The drug war in Mexico has therefore been approached primarily as anissue of legality and of nationalsecurity by both the Mexican andUS governments. Yet it has, inaddition, been the cause of notonly many deaths and much socialdisruption but also a great deal ofpopulation displacement. The drugwar has already begun to spread

into the interior of Mexico andthreatens to aect other populationsin Central America as the cartelsexpand their operations south. Thismakes it even more necessary andsensible to pay more aention to theinternal displacement crisis alreadyexisting in the border region.

Jessica Keralis (jmkeralis@gmail.

com) is a Public Health Surveillance

Specialist with McKing Consulting,

working with the Texas Department of

State Health Services in Austin, Texas.

This article is written in a personal

capacity and does not reect the

views of McKing or Texas DSHS.

Drug-related violence in Mexico has escalated to catastrophic levels and isdriving Mexican people from their homes and cities in droves.

Drug cartels in MexicoJessica Keralis

to beer promote the protection ofcivilians. In cases where NSAGs relyon civilian populations for access toresources, this dependence may actas an incentive to restrain the useof violence against civilians. Theresults of our research suggest thatsexual violence and other forms ofviolence against civilians perpetrated by the Mai Mai occur for a varietyof reasons, and that violence may be opportunistic or strategic.

Communicating the risks ofperpetrating sexual violencethrough media like radio can get

to groups that seem dicult toreach. Reinforcing messages aboutthe risks of violence – to boththe perpetrators and the aectedcommunities – may be a point ofleverage to decrease sexual violence.

Groups may want to view themselvesas the ‘defenders’ of a population, but this may not translate intoprotective behaviour without otherconcrete changes in aitude and behaviour. More research is neededto understand what factors are mostinuential in restraining violence.

Jocelyn Kelly ([email protected]) is

Research Coordinator and Michael

Vanrooyen (MVANROOYEN@partners.

org) is Director, Harvard Humanitarian

Initiative (http://www.hhi.harvard.edu).

1. Harvard Humanitarian Initiative, 2009. CharacterizingSexual Violence in the Democratic Republic of the Congo:Proles of Violence, Community Responses, and Implications for the Protection of Women. Boston:hp://tinyurl.com/HHI2009DRC and HarvardHumanitarian Initiative and Oxfam International, 2010.‘Now, the world is without me’: An investigation of sexualviolence in eastern Democratic Republic of Congo. hp://tinyurl.com/HHIandOxfam2010DRC

2. Wood, E J, ‘Armed Groups and Sexual Violence: WhenIs Wartime Rape Rare?’ Politics & Society, vol. 37, no. 131(2009).

3. Interviews conducted in three eld sites in 2008 and2009 by Congolese social workers trained in qualitativeresearch techniques.




F M R 3 7

The maintenance of local peace andorder in the Federally AdministeredTribal Areas of Pakistan (FATA) bordering Afghanistan is theresponsibility of traditional tribalcouncils (jirgas). A jirga commonlyresolves disputes peacefully but

it also has the authority to forman ad hoc armed militia (knownas a lashkar) in order to enforce itsselement of local disputes. The jirga obliges every family or clan toprovide a number of men to ght. Assuch, a lashkar is made up of a broadcross-section of the male community.

Orakzai Agency (Tribal Area) hasa population of some 225,000 andsuers from economic depression,corruption and bad governance.Violence is sometimes aributedto these factors, as well as to otherless visible causes such as family,land and water disputes andstruggles for control over marketsand trade. However, human rightsabuses by the Taliban and aerial bombing during Pakistani militaryoperations are the main drivers oflarge-scale forced displacement.

The Taliban chose the Ali Khel tribeas its conduit for entering Orakzai.Ali Khel is the biggest tribe in the

Agency, numbering 40,000 peopleof whom 5% are Shi’a. Militantsentered the Ali Khel area in 2008,supported by two local Ali Kheltribal leaders. Local supporters ofthe two leaders joined them, as didother members of the tribe linkedto madrassas (religious schools) andstill others who took part in thewar in Afghanistan, including localthugs. They organised intimidatingpublic gatherings where youngmilitants with covered faces stoodalongside spirited jihadist speakers.

The Taliban appointed local judgesto resolve disputes according toshari’a law, recruited local men and boys and set up jihadist madrassas.

The militants threatened and killedthe area’s tribal leaders and thosewho opposed their authority. Theystripped the jirgas of their authorityto sele disputes and banned allpublic meetings. Local peoplewere also banned from carrying

weapons. Punishment for opposition– particularly public beheadings –terrorised people into submission.

Taliban-endorsed kidnappings forransom became common, and theShi’a community was particularlytargeted. Militants kidnappedand sometimes killed those whofailed to pay a special tax that wasimposed on Shi’a families, and/or ransacked their homes. Underthese circumstances, Shi’a womenand children ed the area, leavingthe men behind. Aer the Talibanimposed a complete economic boyco on the Shi’a community and beheaded several Sunni tribesmenfor failing to comply with it, the Shi’aelders decided to leave the area aswell. Taliban followers looted theproperty they le behind, sold theircrops and butchered their livestock.

Sunni and Shi’a people had by andlarge lived peacefully together inthe same area for a long time, and

so both Sunni and Shi’a tribesmendecided to act together in an eortto protect their communities fromfurther abuse.

Attempts to prevent displacementA grand jirga of 5,000 Ali Khelsdecided to form a lashkar to destroyall Taliban centres around the mainAli Khel towns of Daboori andKhadayzai. Its ranks comprised 2,000farmers, labourers, local tradersand other tribesmen. Followingthe formation of the lashkar , the jirga leaders sent a message to thedisplaced Shi’a that they could returnto their homes. Within a few days,the Ali Khel lashkar had destroyedall Taliban centres in and around

Daboori and Khadayzai. Most of themilitants ed; others were killed.

A jirga was then convened to decidehow to treat, ne or punish the AliKhel tribesmen who had supportedthe Taliban. A decision was reachedto impose a ne of 200,000 Pakistanirupees ($2,300) on each supporter.They were also given the choiceof handing over a Kalashnikov or

vacating their houses before theywere burned down by lashkar men.As the jirga’s deliberations came toan end, a Taliban vehicle loaded withexplosives rammed into the jirga ,killing some 200 people, includingthe Sunni-Shi’a Ali Khel leadership.

In spite of insistent requests, thesecurity forces did not provideprotection to the Ali Khels, andmost families made a collective, jirga-backed decision to leave andwere displaced, mainly to the homesof relatives in nearby towns. Thetribal leadership would normally beexpected to play a role in providingdisplaced families with basic needs but insecurity caused by targetedkillings in the areas where the IDPssought refuge meant that the AliKhel jirga had lile capacity to do so.

The IDPs also became a securityliability in their areas of refuge,aracting unwelcome aentionfrom both the Taliban and the

Pakistani security forces. Membersof the Taliban travel as civilians,some of them posing as IDPs,which means that the laer becometargets of the security forces. Andthe Taliban also sometimes aackIDP targets, such as the suicideaack in April 2010 on an IDP aiddistribution point. Aer this, Shi’aAli Khel IDPs organised themselvesin order to ensure security inplaces where they congregated.

The Story Khel is a small tribe of both Sunni and Shi’a from LowerOrakzai with 5,000 members. TheTaliban established control in theStory Khel’s Sunni-majority areaaer the assassination of the Ali

Resisting displacement by theTaliban in PakistanFarhat Taj and Jacob Rothing

Local tribal councils have organised traditional forms of militia to resistdisplacement caused by the Taliban in Pakistan’s borderlands withAfghanistan.




F M R 3 7

The factors leading to theimprovement of the security situationin Iraq in recent years have beenthe subject of considerable politicalcontroversy; it is universallyacknowledged, however, that theestablishment of the Sahwa Council

and Sahwa forces1 was a crucialfactor in the reduction of violence.Sahwa represents the remarkablechange in the position of Sunnitribal elements from supporting the jihadi insurgents to cooperating withthe US troops in ghting againstal-Qa’eda and Shi’a militias. Thedecision was aided by enhancedmilitary pressure on the jihadimovement and by the US military’sdecision to arm and pay members ofthe unocially armed Sahwa forces– which eventually came to numberover 100,000 militiamen. Sahwaremained overwhelmingly, thoughnot entirely, Sunni Arab, tribaland local neighbourhood-based.

Iraqi IDPs are displaced for variedreasons. Most claim to have le theirhomes because of direct threats totheir lives, although lack of security,fear and generalised violence arealso oen given as reasons. Giventhat lack of security is one of theprimary push factors resulting in

displacement, improved securityin the place of origin is the reasonmost oen oered by individualsand families who return. Otherreasons are the availability of shelteror ability to return to abandonedproperty and access to services likefood, healthcare and potable water.

The role of SahwaThe role of the Sahwa forces wasto cooperate with US forces inreducing violence in the areaswhere they were located. Theyhelped take over neighbourhoodsunder the control of al-Qa’eda orthe Mahdi Army2 in order to ensurethe safety and security of the localcitizens. They set up road-blocks to

control passing cars and trac, andpatrolled the streets together withthe US troops, arresting ‘criminals’,kidnappers and identied membersof al-Qa’eda. They also guided UStroops to road-side bombs and IEDs(improvised explosive devices).

Within months aer theestablishment of Sahwa forcesthere started to be a return of asense of normality, particularlyin the Baghdad neighbourhoodswhere Sahwa forces were based.Explosions and violence wereconsiderably reduced, markets andshops re-opened, children could beseen playing on the streets, roadsand street lamps were repaired.

The Sahwa forces were made upof local men who agreed to bandtogether and ght against elementswhich threatened the security of theirlocal neighbourhood, their familiesand friends. The same is true formembers of the Mahdi Army andother local armed groups whichsprang up in Iraq aer the fall ofSaddam Hussein’s regime. Membersof each of the militias felt loyal totheir local neighbourhood, as wellas sharing sectarian, tribal and otherforms of loyalty. The local population

in the same manner felt close totheir local ‘brothers’ and ‘sons’, andcared for and supported them.

Much like the extremist militias,Sahwa’s goals were to consolidatetheir territory and impose theirauthority on particular areas. Inmany ways they usurped and evenreplaced the government. Localgovernment and the Iraqi army orpolice were either not present inthese Baghdad neighbourhoods, orwere not able to control (or in somecases supported or turned a blindeye to) extremist Shi’a militias whocommied crimes against Sunnis.As a result the local people came todepend and rely on the Sahwa forces

for protection. At the same time thetribal leaders heading the SahwaCouncil and forces furthered theirown sectarian political interests byforming political parties and tried tomaximise Sunni power and position.

Sahwa and IDPs/returneesSahwa forces were not as a ruledirectly involved in oering aidor social welfare to Iraqi citizens

or IDPs. Their role was in the eldof security. This is an importantdistinction between Sahwa forces andother armed militias, which lled,not always for altruistic reasons,the lacuna le by the inability ofthe Iraqi government, the UN andother humanitarian organisationsto meet the humanitarian needsof Iraqi citizens, let alone of IDPs.At the height of the crisis in Iraqin 2006-07, only the ICRC andthe Iraqi Red Crescent were ableto eectively continue oeringhumanitarian assistance.3

The presence of the Sahwa forceshelped restore relative calmand security to neighbourhoodswhere they were stationed, a pre-condition for the re-establishmentof a normal life. They were hired bythe US forces to ght and removeal-Qa’eda, the Mahdi Army andother militant armed groups. Sahwaforces were able to extract variousneighborhoods from the stranglehold

of militant armed groups, thusremoving the source of threat andfear for sectarian, ethnic or religiousminorities in those neighborhoods.

The process of sectarian segregationwhich was already underway wasclearly encouraged and aided bySahwa forces, together with theUS forces. Sahwa forces, beingmostly Sunni, oered passage andsafety to fellow Sunnis eeingharassment, threats and persecution.

In Baghdad, the security and calmcreated by the presence, road blocks,control and patrolling of Sahwaforces provided opportunities forhumanitarian agencies to physically

Sahwa’s role in protecting IDPsand returnees in IraqCherie Taraghi

The creation of the Sahwa forces, an unofcial armed group outside thecontrol of the Iraqi government and state, was a convenient product of USmilitary policy.




F M R 3 7

enter and help some of the mostdangerous neighbourhoods theywere previously denied access to.Some Sahwa groups are known tohave shared their local knowledgeand information with the Iraqi RedCrescent, for example identifyingIDPs or returnee householdswho needed assistance.

Membership in the Sahwa forcesalso provided a chance for IDPs togain meaningful employment. Whatmaered for the US forces during‘the surge’4 was that locals, militantor otherwise, should stop insurgentacts against the US and instead jointhe US and Multi-National Forcein ghting against al-Qa’eda and

other armed militias. By 2006 UScommanders acknowledged thata lack of jobs was a key factor indriving the insurgency – the biggestsingle cause of that being the early

US decision to disband the oldIraqi army, providing thousandsof potential recruits overnight.

Sahwa also provided the impetusfor many to return home. ManySunni returnees mention Sahwa’scontribution to the neighbourhoodas one of the reasons why theydecided to return. Local citizensin neighbourhoods patrolled andcontrolled by Sahwa forces praisedSahwa forces for bringing the area back to life and for doing their utmostto ensure their safety and protection.

Potential returnees say that theygot word from family members ortribal aliates in the Sahwa forcesabout the status of the homes theyle behind. Sahwa forces have beendirectly engaged in identication

and protection of IDPs’ property andhave been also been involved both inextracting or removing individualsor militants who have occupiedhouses abandoned by IDPs, andin ensuring that these propertiesare not rented or sold without theprior knowledge and consent of theoriginal owners; they have evenrequired proof of identity from theoriginal owners prior to permiingthem to resele in their property.

Interestingly, surveys conductedwith local people about the roleand eectiveness of Sahwa forcesrepeatedly mention protectionoered to women and children,particularly widows, households led

by women and households of female-led returnee families. Sahwa forcesare known to specically patrol,control and protect households andareas with female-led households.

The future of SahwaResponsibility for Sahwa forceswas gradually handed over by the

US forces to the Iraqi governmentand the transfer of responsibilitywas completed in 2009. As suchthe Sahwa forces can no longer be considered a ‘non-state’ armedgroup. The government of Iraqwas sceptical about them from theoutset, fearing they would serve asa refuge for unreformed insurgentsor that they might challenge thedominant parties’ hold on power.Although the government hasacknowledged the importance andvalue of the role played by Sahwa,the sense of mistrust and concernremains. Consequently, althoughthe Iraqi government has promisedto incorporate 20% of the Sahwaforces in the national security forces

and nd civil employment for theremainder of its members, actionhas been slow and the governmentdoes not hide its reluctance. Thegovernment nds it very dicultto disregard the fact that many ofthe members of Sahwa were activeinsurgents, engaged in ghtingagainst the current Iraqi regime.

Both Shi’a and extremist Sunniinsurgent groups have been equallyvocal in their denunciations of Sahwaforces, depicting them as US stooges.These pressures and problems faced by the Sahwa forces, particularlythe impression that they themselveshave become the targeted victims ofthe sectarian conict in the country,

open the possibility that some mayin fact rejoin the insurgency or turnagainst the current Iraqi regime.These defenders of security andcivilian interests may become a threatto security once more, resulting ina reversal of the positive conditionsestablished by Sahwa’s presence forSunni civilians, IDPs or returnees.

Sahwa tapped into dierent aspectsof Iraqi society: continued respectfor tribal leaders (especially in ruralareas), exhaustion with the brutalviolence and disturbance to daily life,and the community’s acceptance oftheir local sons’ aempts to protectthem. Regardless of their formeridentity as thugs, insurgents ormembers of Iraqi al-Qa’eda, between2006 and 2009 members of the Sahwaforces played an important role inthe re-establishment of relative calmand security in Anbar province, inDiyala and in the neighbourhoods ofBaghdad where they were stationed.They also played an especially

important role in providing bothphysical and material protectionto Sunni IDPs and returnees inthe areas where they operated.

Cherie Taraghi (shirin.jahangir@

ka.com.tr) was a Cultural Orientation

Trainer and Caseworker at ICMC Turkey

from 2003-08 and is currently Senior

Research Executive at KA Research

Limited (http://www.ka.com.tr).

1. Sahwa is the Arabic word for ‘awakening’.

2. Iraqi paramilitary force created by the Shi’a clericMuqtada al-Sadr in June 2003.

3. A number of other organisations were also present andactive in dierent capacities. See FMR Iraq Special Issuehp://www.fmreview.org/iraq.htm

4. 2007 increase in the number of American troops inorder to provide security to Baghdad and Al AnbarProvince.

Displaced in Iraq, this woman ed her home town after a mortar attack that killed several children.

U N H C R / K B r o o k s




F M R 3 7

The African Union Convention forthe Protection and Assistance toInternally Displaced Persons, adoptedin October 2009 – known as theKampala Convention – reects and builds on the existing frameworksof international humanitarian law

(IHL) and international humanrights law (IHRL), as well as on suchso law as the Guiding Principleson Internal Displacement. Thusthe Kampala Convention imposesobligations on States Parties “torespect and ensure respect” for bothIHL and IHRL. “Ensuring respect”means that States Parties must alsoensure that non-state armed groups1 (NSAGs) do not interfere with theenjoyment of IDPs’ human rights,and do not impede the protectionof civilians, including IDPs.

In situations of non-internationalconicts, the conduct of statesand NSAGs alike is regulated byCommon Article 3 of the four 1949Geneva Conventions, the 1977Additional Protocol II, and thekey provisions of IHL which areconsidered to have become partof international customary law.2

Obligations of non-state armedgroups

The Kampala Convention doesnot go so far as to impose positiveobligations on armed groups toprotect human rights. However inArticle 7, entitled “protection andassistance to internally displacedpersons in situations of armedconict”, the Convention armsthe applicability of the pre-existingframework of international law,including IHL, stating that “Theprotection and assistance tointernally displaced persons underthis Article shall be governed byinternational law and in particularinternational humanitarian law”.

It recognises that in situations ofnon-international conict armed

groups oen exercise signicantcontrol over civilian populations,including IDPs. Article 7(5) imposesa number of negative obligationson armed groups, prohibiting themfrom engaging in a range of actions:

■■ carrying out arbitrarydisplacement3

■■ hampering the provision ofprotection and assistance toIDPs under any circumstances

■■ denying IDPs the right to live insatisfactory conditions of dignity,including the right to security,sanitation, food, water, healthand shelter; and separatingmembers of the same family

■■ restricting the freedom ofmovement of IDPs within andoutside their areas of residence

■■ recruiting children orrequiring or permiing themto take part in hostilitiesunder any circumstances

■■ forcibly recruiting persons,kidnapping, abduction or hostagetaking, engaging in sexualslavery and tracking in persons

especially women and children

■■ impeding humanitarianassistance and passage of allrelief consignments, equipmentand personnel to IDPs

■■ aacking or otherwise harminghumanitarian personneland resources or othermaterials deployed for theassistance or benet of IDPsor destroying, conscating ordiverting such materials

■■ violating the civilian andhumanitarian character of theplaces where IDPs are sheltered,or inltrating such places.

Article 5(11) imposes on States Partiesthe obligation to “… take measuresaimed at ensuring that armedgroups act in conformity with theirobligations under Article 7”, which inturn stipulates that “The protectionand assistance to internally displacedpersons under this Article shall be governed by international lawand in particular internationalhumanitarian law” (Article 7(3)). The

Convention also provides that StatesParties must hold members of armedgroups “criminally responsible fortheir acts which violate the rightsof IDPs under international lawand national law” (Article 7(4)).

Enhanced protection of IDPs

The Kampala Convention enhancesthe protection of IDPs in threeimportant ways. First, the KampalaConvention does not provide for thepossibility of derogation4 in times ofnational emergency, as the whole ofthe Kampala Convention remainsapplicable at all times. NeitherStates Parties nor armed groupscan invoke the existence of armedconict to avoid their human rightsobligations under the Convention.

In addition, the Kampala Conventiondoes not specify a threshold forthe application of Article 7. Thuseven in situations where armedviolence does not reach the levelof armed conict leading to the

application of Common Article3, or the higher threshold for theapplication of Additional ProtocolII, NSAGs are bound by theirobligations under Article 7 of theKampala Convention not to interferewith IDPs’ fundamental rights.

Finally, where displacement is caused by conict between a state and oneor more armed groups, these armedgroups have a dened role to playin bringing displacement to an end.The Convention stipulates thatStates Parties shall “[e]ndeavour toincorporate the relevant principlescontained in this Convention intopeace negotiations and agreementsfor the purpose of nding sustainable

The Kampala Convention andobligations of armed groupsKatinka Ridderbos

The Kampala Convention imposes a number of obligations on armedgroups in order to better protect IDPs; the challenge now is to encouragesuch groups to recognise these obligations.




F M R 3 7

prevalent in the years leadingup to the recent displacementcrisis, with more than 200 schools

destroyed in that district alone bythe end of 2008, of which 95% weregirls’ schools. An estimated 50,000students were deprived of educationas a consequence. And a Save theChildren UK survey of a schoolin Kandahar, Afghanistan, foundthat “only about half of the girlsaend school daily due to on-goingthreats on their lives.”3 Aacks onschools or other facilities ordinarilyused by children are prohibited byinternational law – yet they continue.

Fighting between NSAGs andothers to control territory canhave a drastic impact on access toeducation for displaced personsand others. For example, Save the

Children UK estimates that themajority of displaced childrenin eastern DRC have had no

access to formal or informaleducation since 1998.4 NSAGs inDRC have further exacerbatedaccess to education by impedinghumanitarian access and destroyingeducational infrastructure. Theyoen burn school furniture forrewood, and occupy schools.

NSAGs with some territorial controlWhere NSAGs have some territorialcontrol, they may be able to providesome kinds of social and economicservices to the local population.For instance, Hezbollah is bothan NSAG and a political player inLebanon with control over a largenumber of municipalities in southernLebanon. Hezbollah maintains

an Education Unit as part of theirorganised system of health andsocial services; according to a June2009 report, the Education Unit“provides [an] indispensible serviceto the Shi’ite poor” by operating anumber of primary and secondaryschools serving approximately 14,000principally Shi’ite students at lowfees in areas where Lebanon’s publicschool system is considered to be ofpoor quality. 5 Here, the presence ofan NSAG providing some degree ofterritorial control and social serviceshas a positive impact on accessto education, both for displacedand non-displaced children.

However, such a paern is not always

true when a NSAG controls territory;NSAGs can erode security to thepoint where education is impossibleand/or completely neglected. InAfghanistan’s Jawzjan Province, forexample, the central governmenthas largely neglected state services,and much of the area is aected by NSAG violence. Children faceserious obstacles in aending thefew schools that do exist – obstaclesthat include Taliban-laid landmines,and kidnappings en route to andfrom school. Here, the NSAGs areneither providing sucient securityto permit education to continue norpolitical support for education itself.

NSAGs have, as a minimum, anobligation not to aack education,and oen, where they have somelevel of territorial control, have apositive obligation to provide accessto education. It is clearly necessary,therefore, to engage NSAGs in issuesof education, and to recognise therole they can play in damaging

or promoting children’s rights.

Alice Farmer ([email protected]) is

Child Rights Advisor with the Internal

Displacement Monitoring Centre/

Norwegian Refugee Council (http://

www.internal-displacement.org).

1. Articles 50(1) and 24(1)

2. Graca Machel, The Impact of War on Children, 2001.hp://www.unicef.org/publications/index_4401.html

3. Save the Children UK, Barriers to Accessing Educationin Conict-Aected Fragile States, Case study: Afghanistan, p 27 hp: //www.savethechildren.org.uk/en/docs/Afghanistan_Case_study_Final.pdf

4. Save the Children UK, Barriers to Accessing

Education in Conict-Aected Fragile States, Case study:Democratic Republic of Congo (DRC), p18 hp://www.savethechildren.org.uk/en/docs/DRC_Case_Study_Final.pdf

5. Middle East Policy Center, Hezbollah’s Social Jihad:Nonprots as Resistance Organizations, June 2009.hp://tinyurl.com/MEPC-Hezbollah-June09

IDP camp established in a school, District of Dir, North West Frontier Province, Pakistan.

I C R C / P h i l i p p e F i c h a r d




F M R 3 7

In Holder v HLP the SupremeCourt was asked to respond tocomplaints led in 1998 and 2003 byseveral humanitarian organisationswho felt that the US legal code’sprohibitions under the MaterialSupport statute (18 U.S.C § 2339B)were overly vague and violatedthe right to freedom of speech and

association, protected under the FirstAmendment to the US Constitution:

“Whoever knowingly providesmaterial support or resources toa foreign terrorist organization,or aempts or conspires to do so,shall be ned under this title orimprisoned not more than 15 years,or both, and, if the death of anyperson results, shall be imprisonedfor any term of years or for life.”

Rejecting the humanitarianorganisations’ claims, theSupreme Court found that theprohibition of engagement with“terrorist” organisations, evenfor humanitarian purposes, wasentirely constitutional. In doing so itdenied the possibility of assistanceto millions of victims of humanrights abuses. This assistance maycome in many forms, for example,in advice provided to the leaders ofnon-state armed groups (NSAGs)regarding the peaceful resolution

of disputes, or the negotiationof humanitarian agreementswith NSAGs, such as that agreed between the Justice and EqualityMovement (JEM), a DarfurianNSAG, and UNICEF in July 2010.

In most cases, under internationallaw NSAGs cannot become parties totreaties which codify humanitarianand human rights norms. Althoughtechnically states are required toenforce their treaty obligationsthroughout their territory, in realityNSAGs oen exert de facto controlover swathes of territory, removingmillions of people from the protectionoered by these legal instruments.Humanitarian agreements are a

means to bypass this legal obstacle by allowing NSAGs to voluntarilysubscribe to these norms.

For example, under the termsof the JEM-UNICEF agreement,the JEM agreed to abide by therequirements of a number of nationaland international human rights

instruments prohibiting the useof child soldiers and protectingchildren generally. In anotherprominent example, many NSAGshave signed a Deed of Commitmentwhich contains provisions akin tothose found in the Oawa LandmineTreaty, prohibiting the use of anti-personnel mines and agreeing toconduct and facilitate de-miningactivities.1 Although the statuteis unlikely to be strictly enforced,Holder v HLP implies that thehumanitarian workers and humanrights advocates who negotiatethese agreements may be subjectto prosecution in the US under the‘material support’ statute. Why?

FungibilityThe Supreme Court’s rst argumentfocuses on the supposed fungibility(i.e. ability to be traded or converted)of all forms of ‘assistance’ providedto “terrorist” organisations,including advice and training. Theargument goes that any assistance

frees up resources which canthen be used for violent ends.

This argument does not withstandcloser scrutiny. Humanitarianagreements oen involve a signicantcommitment of personnel andresources. For example, underthe terms of the JEM-UNICEFagreement, JEM agreed to designatea senior ocial to be responsiblefor oversight of its implementation,another ocial to liaise with theUN, and a number of ocials toserve as emergency contacts for theUN and other external actors. Italso agreed to facilitate monitoringof the agreement and to reportperiodically on its implementation.

As JEM is estimated to have fewerthan 5,000 ghters, these ocialsconstitute a signicant proportion ofits high-level personnel. Additionally, JEM guaranteed full security andaccess for UNICEF sta: anotherdrain on resources and personnel.

Similarly, Geneva Call reportedin 2007 that, out of 35 signatoriesto its Deed of Commitment, 29fullled reporting requirements.Additionally, 20 groups facilitatedmonitoring missions, and most

undertook and/or cooperated withmine action.2 In return, the onlyassistance provided to these groupswas related to mine action. None ofthese measures can be identied asdirectly freeing up resources thatcould then be put to violent ends.

Chief Justice Roberts worried that“terrorist” organisations would ndit easier to recruit members andraise funds, if they were publicallyengaged with reputable humanitarianorganisations. In fact, the reverseis oen the case. These agreementsexpose NSAGs to external scrutinyand may thus prevent groups whodo not honour their commitmentsfrom presenting themselves asmoral humanitarian organisations.Violations under the watchfuleye of humanitarian workers willnot go unreported and thereforetransgressors risk jeopardisingtheir reputation and support.The monitoring conducted by theorganisations who work with NSAGs

can also strengthen the case forinternational criminal liability, if thegroup clearly violates the agreement.

Legitimacy and misuseIf we are concerned that negotiationconfers some legal legitimacy orstatus on NSAGs, we should not be. The instruments which NSAGsconclude with NGOs or internationalorganisations do not ociallytransform their legal status andmost, if not all, agreements containa clause to this eect. For example,the JEM-UNICEF agreementstates in Article 4.5 that “ThisMemorandum of Understandingshall not aect the legal status ofany party to the armed conict.”

Darfur and the aws of Holder v HLPChristopher Thornton

When US Chief Justice Roberts handed down the judgment in Holder vHumanitarian Law Project (HLP), he revealed the Supreme Court’stragic under-estimation of the potential of engagement with non-statearmed groups.




F M R 3 7

If instead we are concerned thatthese negotiations confer politicallegitimacy on the group, I wouldsuggest that, to the contrary,these negotiations send a clearmessage to NSAGs that if theywant to be treated as legitimateactors, they must agree to abide byhumanitarian and human rightsnorms. Is conveying the messagethat political legitimacy is contingenton respect for human rights a badthing? I think not. Providing adviceand guidance to this eect is aclear contribution to convincingNSAGs to renounce ‘terror tactics’.

Another of Justice Robert’s argumentsies in the face of the prevailingtrend in international relationssince the end of the Second WorldWar. He worries that, by informingthese groups about mechanisms forthe peaceful resolution of disputes,we will provide them with anotheravenue of aack or a stalling tacticto allow them to re-arm. Of course,these mechanisms may be abused butdoes this justify criminalising eortsto inform NSAGs of the existenceof such mechanisms? It is ourresponsibility to make it clear that theworld has human rights standardsto which all actors, both state andnon-state, are equally accountable.

The value of engagementOne might argue that my examplesare rather conveniently selected. JEMdo not appear on the list of “terrorist”organisations and have demonstrateda willingness to improve their

human rights record,5 and indeedit is more dicult to nd a basisfor engagement with some NSAGs,for example the Lord’s ResistanceArmy. However, this list does containorganisations which have conductedpolitical and humanitarian activities:the FARC in Colombia, the LTTE inSri Lanka, Hezbollah in Lebanonand the PKK in Turkey. Furthermore,the seeming irrationality of aparticular NSAG should not be heldnecessarily to preclude engagement.

The ICRC has repeatedlydemonstrated that improving respectfor human rights and IHL is aprocess of persuasion and arition.In dealing with the LRA, the ICRCrecognised that beginning withthe issue of child soldiers would becounter-productive, as abductionswere integral to the LRA’s methods offunctioning. Instead, respect for theemblem of the Red Cross providedan entry-point into negotiationsand allowed for the dramatic

improvement of assistance to victimsof the conict.6 An NSAG’s refusalto accept all humanitarian andhuman rights norms immediatelydoes not justify the disqualicationof this group as irredeemable;small steps can be made towardsgreater compliance over time.

Prohibiting any engagement withNSAGs that are considered terroristorganisations precludes the greatestgains which can be made fromhumanitarian negotiation. Howcan we get the worst organisationsto improve their compliance withhuman rights and humanitariannorms if we do not talk to them?Successes like the JEM-UNICEF

agreement and the many Deeds ofCommitment negotiated by GenevaCall demonstrate that this is possiblewithout encountering the dangers offungibility, legitimacy and misusewhich Chief Justice Roberts fears.I hope that, despite the risk ofprosecution, people will continueto dare to engage with proscribedgroups, encouraging them torenounce brutal methods and strivetowards the peaceful resolution ofdisputes. And, moreover, I hopethat the US Supreme Court andGovernment will reconsider theirdenition of ‘material support’.

Christopher Thornton (christopher.

[email protected]) is a

student at the Graduate Institute of

International and Development Studies,

Geneva (http://graduateinstitute.

ch) and has worked for various

international NGOs including the Centre

for Humanitarian Dialogue (http://

www.hdcentre.org.) This article is based

on a longer piece entitled ‘A Dangerous

Precedent: The Consequences ofProhibiting Engagement with Non-

State Armed Groups’, published in

Conict Trends 2010/3. Available

at http://www.accord.org.za.

1. This initiative is conducted by Geneva Call; see articleon pp10-12.

2. Bongard, Pascal, ‘Engaging Armed Non-State Actorson Humanitarian Norms: The Experience of GenevaCall and the Landmine Ban’ in Exploring Criteria andConditions for Engaging Armed Non-State Actors to RespectHumanitarian Law and Human Rights Law. p114,hp://tinyurl.com/GenevaCallConf2007

3. Personal interview with Dennis McNamara, January2010, Geneva.

4. hp://www.coricle.com/clapham/publications.html

5. See JEM-UNICEF memorandum of understandinghp://tinyurl.com/JEM-UNICEFmou

6. Bangerter, Olivier, ‘The ICRC and Non-State ArmedGroups’ in Exploring Criteria and Conditions for Engaging Armed Non-State Actors to Respect Humanitarian Law &Human Rights Law. p81.

“The hang-up with legitimacy is a

major stumbling block in peacemaking today.”

Dennis McNamara, Senior

Humanitarian Adviser at the Centre

for Humanitarian Dialogue (involved in

brokering the JEM-UNICEF agreement)3

“States may fear the legitimacy that

such commitments seem to imply –

but from a victim’s perspective

such commitments may indeed be

worth more than the paper they are

written on.”

Andrew Clapham, Professor,

International Law, Graduate Institute4

U N H C R / H C a u x




F M R 3 7

The overwhelming majority oftoday’s armed conicts are not fought between the armies of opposingstates but between the governmentforces of a state and one or severalnon-state armed groups (NSAGs).

While civilians have always hadto suer from the consequencesof warfare, this trend implies anumber of additional challenges.

Forcible and prolonged displacementis far too oen a result of armedconicts and violence today. Behindthe stark numbers of millions whond themselves on the road or inprecarious living conditions, faraway from home and oen in aforeign country, there are storiesof tremendous loss, suering andperseverance. Civilians are aectedin a myriad of ways, whether as thevictims of direct aacks – including by the use of sexual violence asa method of warfare, or forcibledisplacement – or as indirectvictims through conict-inducedincreases in disease, hunger andmalnutrition. Landmines, clustermunitions and other explosiveremnants of war all too commonlyplay a vicious role in thesestories, forcing people to ee and

standing in the way of return, thuscreating protracted displacementsituations. These are some ofthe unacceptable humanitarianconsequences for which NSAGs,as well as states, are responsible.

International law and accountabilityWe see too many examples today ofparties to conict conducting theirmilitary operations in disregard offundamental rules of internationalhumanitarian law. Lack of respectfor the rules may be the result ofconscious policy decisions, or due toa lack of knowledge or understandingof the rules, or even lack of capacityto enforce them. This may manifest

itself both in the conduct of NSAGsand in the conduct of states.

Another challenge we face is thata number of these conicts donot t neatly into the traditional

categories of international ornon-international armed conict.Further complicating maers, thereis oen a blurred line betweensituations of non-internationalarmed conict and situations with acombination of political and criminalviolence, where armed actorswith mostly criminal motivationsare contributing to insecurityand aacks on the population.

How are we to address thesechallenges? First of all, there is a needto increase the parties’ knowledge ofand respect for the international rulesthat apply. Although conventionsare mainly negotiated by states,a principle of individual criminalresponsibility applies in the case ofthose fundamental norms enshrinedin international humanitarian law,which are also binding on NSAGs.Non-state armed groups can also be bound by, and be held accountable by states to, the fundamental normsenshrined in human rights law

and refugee law. The respectivemandates of the ICRC, UNHCR andother UN bodies as custodians ofthis order are crucial to uphold.

Governments are under clear treatyobligations to take appropriate stepsto ensure the protection of civiliansunder international humanitarian lawor, when they have failed to preventviolations, to investigate, punishand redress human rights abuse.

There is a need to reinforce theprinciple that those responsiblefor violations of internationalnorms are held accountable,through the active strengtheningand rebuilding of national legal

systems; through the resolutionsof the UN Security Council andother international institutions; andthrough the International CriminalCourt and special tribunals.

We have seen that NSAGs may be convinced, through dialogueand outreach, to act in conformitywith international norms. Oneexample is the 1997 Convention

on the Prohibition of the Use,Stockpiling, Production andTransfer of Anti-Personnel Mines.Through extensive use of dialogue by the organisation Geneva Call,a number of NSAGs have signeddeeds of commitment explicitly binding them to the provisions ofthis convention. Norway has alsosupported Geneva Call’s pilot projectaimed at NSAGs and the protectionof women and girls in armed conict.At a meeting in December 2010,members of eight Asian NSAGs cametogether to discuss conict-relatedsexual violence and commiedto work towards complying withinternational standards on the issue

The case for dialogueNorway has for the last two decadespursued a policy of engagement.The overriding objective is to helpthe parties to armed conicts ndpeaceful solutions, or at least helpto reduce the level of violence andmove towards political solutions.

In all cases where Norway has beeninvited to play a role, the partieshave comprised at least one armedgroup and a state. Engaging NSAGsthrough dialogue on compliancewith international norms has to bedone step by step depending on thedynamics and stage of the conict.Where the parties are in dialoguewith each other (oen facilitated bya third party), partial agreements –sometimes linked to permanent ortemporary cease-res – can serveas important condence-buildingmeasures in addition to easing thesuering of the civilian population.

Dealing with non-state armed groupsand displacement: a state perspective Espen Barth Eide

Norway’s experience with its integrated foreign policy of engagementmakes the case that better prevention, protection and assistance shouldbe sought by states through international law and dialogue with non-statearmed groups.




F M R 3 7

Norway has since 2001 assisted asa facilitator in the peace process between the Government of thePhilippines and the NationalDemocratic Front of the Philippines.An agreement between the partieson respect for Human Rights andInternational Humanitarian Law(CARHRIL) has been reached,including on forming a mechanismfor monitoring its implementation.The parties are now, alongside theresumption of formal negotiationstaking place in February 2011,endeavouring to accept complaintsthrough the established mechanism,and to investigate and report onviolations of human rights andinternational humanitarian law

allegedly commied by either party.

The visible results of our policy havevaried – but measuring Norway’sindividual role in a given conictmay not be very meaningful.Our contribution tends to be partof a larger eort together withothers, and the ingredients forsuccess or failure are mainly foundamong the parties themselves.

Our main tool is contact – dialogue – based on condence. This approachnecessarily raises importantquestions. Will allowing an armedgroup the opportunity to engagein talks legitimise that group’suse of violence to push for itsdemands? Will the parties simplytake advantage of the dialogue to buy time for their armed struggles?While these are valid questions,Norway has chosen to help facilitatedialogue because it has seemedthe best way to make clear to theparties what would be required

to achieve a political solution.

With whom are you going to discussa conict and the possible end toit if not with the parties involved,including non-state armed groups?Norway’s position is to talk toeveryone, including organisationssuch as Hamas in the PalestinianTerritory and Hezbollah in Lebanon.

In such dialogues, the parties’ self-interest in abiding by the law ofarmed conict and other legal normsmay be detected and encouraged.The parties’ quest for legitimacymay be a potent driver behind this.When political legitimacy is thearmed group’s goal, it enhances, in

relative terms, the opportunitiesfor constructive engagement forthe reduction of violence and thepromotion of peace. Of course, a balance must be struck betweenthe NSAG’s interest in politicallegitimacy and the concernedstate’s reluctance to convey suchimplicit legitimacy throughdialogue. Ideally one should workto depoliticise issues concerningfundamental international normsand to avoid states preventingdialogue on human rights issueson the grounds of wishing tolimit dialogue with NSAGs.

Indeed, understanding what drivesthe parties, and in particular a

non-state armed group, is a crucialargument in favour of dialogue. It is,alas, also an increasingly convolutedaair. Non-state actors tend not to be monolithic organisations. Indeed,fragmentation, links between groupsand criminal networks, links withelements of state structures, andthird-state sponsorships – theseare all facets of the complex realityof today’s NSAGs. Sometimes,this fragmentation is even due toa state’s military success againstan armed group, paradoxicallycreating a situation less conduciveto eective dialogue. Thesecomplexities make it dicult togauge the parties’ interests andidentify their main drivers.

Humanitarian disarmament

By ‘policy of engagement’, we meanmaking full use of our foreign policyapparatus, aid funding, networksand willingness to take politicalrisk in order to bring about changeat the international level – change

that is in line with universal valuessuch as protection of humanitarianprinciples, promoting human rights,disarmament and conict resolution.Norway’s development cooperationand humanitarian eorts are partof such a policy of engagement.

Let me illustrate this by an examplethat is of relevance to the topic ofNSAGs and forced displacement:the 1997 Anti-Personnel MineBan Convention. While originallydeveloped for warfare betweenstates, landmines – whetherindustrially produced or improvised– have become a common featureof ‘asymmetric’ armed conict between one or more NSAGs and

a state. Regardless of who is usingsuch weapons, the humanitarianconsequences are unacceptable,which is why Norway was amongthe most active proponents ofthe total ban embodied in the1997 Convention. For the samereason, under the umbrella termof ‘humanitarian disarmament’,Norway is deeply engaged in a broad range of eorts (directly and by providing political and nancialsupport to others) to ensure that theconvention is being implementedso that mine-elds are cleared, thevictims assisted, and the weaponsdestroyed and no longer produced.

The Mine Ban Convention would

not have been possible without theintrepid eorts of humanitarianorganisations such as the ICRCand a number of NGOs, and thevery signicant involvement oflandmine survivors. Norway andother concerned states cooperatedvery closely with these actors whichproved crucial to the process as itkept the negotiations grounded inthe stark reality of the true impact oflandmines. Norway later used thismodel of cooperation between statesand civil society in the successfulprocess leading to the 2008Convention on Cluster Munitions.

The Mine Ban Convention, andlater the Convention on ClusterMunitions, established a forcefulprecedent in international lawand policymaking for addressingdisarmament issues based onhumanitarian criteria. This hashad, and will continue to have,wider ramications for the securitypolicies of states. At the same time,

the harnessing of the humanitarianargument through these conventionshas also contributed to a globaldialogue on the protection ofcivilians in which non-state actors,including armed groups, are takingpart. Even in a globalised worldwhere there are many governancegaps – particularly resulting from theactions of non-state armed groupsand the inability of states to fullyassert themselves – progress is stillpossible through a combination ofinternational law and dialogue.

Espen Barth Eide is State Secretary,

Norwegian Ministry of Foreign

Affairs. For more information

please email [email protected]



GENERAL ARTICLES 43

F M R 3 7

There are – on a regular basis – newinstances of displacement. Thissuggests that it is in preventinginternal displacement thatgovernments and the internationalcommunity are failing.

When I was appointed by UNSecretary-General Ko Annan as hisRepresentative on the Human Rightsof Internally Displaced Personsin 2004, the number of persons

displaced within their countriesstood at an estimated 25 million.1 Inlate 2010, when I handed over mymandate to Chaloka Beyani, the newSpecial Rapporteur on the HumanRights of Internally DisplacedPersons, the number had grown tomore than 27 million. During thesesix years, it had also become clearthat the number of those displacedin the context of natural disasterswas even greater, reaching anestimated 36 million in 2008 alone.2

Many of the internally displacedpersons I met on my missionsearly in my mandate still remainin protracted displacement; otherswere able to return but continue tostruggle to rebuild their lives; andstill others have become victimsof arbitrary displacement since Icame into oce. I know of hardlyany case where those responsiblefor arbitrary displacement wereprosecuted and punished. Too manyinternally displaced women and

girls remain exposed to sexual andgender-based violence or other formsof abject exploitation, too manydisplaced children have no chanceto access even basic education orare recruited into armed forces andarmed groups, and too many menhave lost any hope of regaining theirability to care for their loved ones.

On rst sight this looks as if therehad not been any progress duringthese years and the internationalcommunity, despite its manyeorts, had failed. A closer look,however, reveals that not onlyhave countless lives been savedthanks to humanitarian assistanceand protection activities but also

that between 2004 and 2009 anestimated 24.4 million IDPs have been able to return to their areasof origin. Among the countries Ivisited, improvements in the securitysituation or peace agreements haveallowed large numbers of people toreturn to their homes in southernSudan, Nepal, Timor-Leste, Ugandaand Sri Lanka, and to a lesser extentin Ivory Coast, Central AfricanRepublic and Kenya. Although

return does not automatically meanthat people nd a durable solution,this is an impressive gure.

At the same time, many peopleremain in displacement over manyyears or even decades, pointing toan inability or unwillingness toaddress the underlying causes behindso many internal displacementsituations around the world. Whatwe need in this regard is morecommitment of the internationalcommunity and political willon the part of aected states,something that is oen lacking.

Progress and achievementsClear progress can be seenregarding the normative frameworkguaranteeing the rights of IDPs.When I came into oce, a group ofstates still contested the validity ofthe Guiding Principles on InternalDisplacement because they hadnot been negotiated by states. The breakthrough came with the 2005

World Summit in New York, whenHeads of State and Governmentsunanimously recognised theGuiding Principles as an importantinternational framework for theprotection of internally displacedpersons, language which has sincethen been repeated in several UNGeneral Assembly and HumanRights Council resolutions.

The Great Lakes Protocol onProtection and Assistance toInternally Displaced Persons, adoptedin 2006, obliges its ten memberstates to incorporate the GuidingPrinciples into their domestic law.2009 saw the adoption of the AUConvention on the Protection and

Assistance of Internally DisplacedPersons in Africa, the rst legally binding regional instrument ofits kind.3 Several countries haveeither adopted or are in the processof developing national legislativeframeworks, programmes andpolicies which incorporate or referto the Guiding Principles, andthese are increasingly becomingmore detailed and operational.

There have also been normative andconceptual advances with regard tospecic aspects and types of internaldisplacement – for example, ondisplacement due to natural disastersand climate change, on the processfor achieving durable solutions,

and on how to include the rightsof internally displaced persons inpeace processes and agreements.

These are achievements that cannot be underestimated. They have helpedto improve our understanding ofinternal displacement, and to groundpolicies and programmes in a setof common standards which are based on a human rights framework.I know of many instances wheresuch improvements have meanta beer life for real people.

One eect of these developments is agreater readiness of states to discusstheir displacement situations. Thereare still countries like Myanmar or

Walter Kälin on theoutlook for IDPs

Walter Kälin served for six

years as the UN Secretary-

General’s Representative on

the Human Rights of InternallyDisplaced Persons. On the

occasion of his retirement

from this post, we publish his

reections on those six years

and the future for IDPs.



44 GENERAL ARTICLES

F M R 3 7

Pakistan which deny that peopledisplaced by military operationsare IDPs but overall I felt a growing

willingness of governments notonly to discuss IDP issues but alsoto take at least some steps to beerassist and protect them. Somecountries, in particular Georgia andAzerbaan and to some extent alsoBosnia, Serbia and Colombia, havestarted to address their protracteddisplacement situations withmeasures to improve the livingconditions of their IDPs whileawaiting return or other durablesolutions; however, problems remain,particularly in the area of livelihoodsand for IDPs with special needs.

For the futureDespite the progress made, muchwork remains to be done in anincreasingly dicult environment.I believe we must face up toeight major challenges:4

Moving beyond ‘camps andconicts’ – internal displacementin all its forms: An IDP is typicallyperceived as somebody living in

destitution in a camp aer eeingviolence and armed conict. Thereality, however, is far more complex.The majority of IDPs live outsidecamps with host families or aredispersed in urban areas. We needto be more creative in our eorts toassist and protect them. Such eortsshould reach all displacement-aected communities, i.e. not onlythe IDPs but also host communities orcommunities that have to re-integratereturnees. As regards the causes,every year more people are displaced by natural disasters than by conicts.Climate change is contributing tothis phenomenon as well. In addition,displacement resulting from forcedevictions linked to development

projects is also on the rise. I feelstrongly that responses to such typesof displacement remain inadequate.

Addressing multiple layers ofvulnerability and discrimination: All IDPs are vulnerable in waysthat non-displaced persons arenot. However, certain groups ofIDPs require particular aention.These include women (especiallywomen heading households),children, the elderly, persons withdisabilities or chronic illnesses,and those belonging to ethnic andreligious minorities and indigenouspeoples. While this is accepted intheory, the specic concerns andneeds of these groups are still

oen overlooked in practice.

Supporting states with limitedcapacity: Sovereignty entailsresponsibility. Addressing internaldisplacement is therefore rstand foremost a responsibility ofgovernments. However, muchinternal displacement today occursin states with limited capacity toprevent or respond to displacement.The challenge lies in supportingthese states’ eorts to adopt andimplement comprehensive policiesand laws on internal displacement,while ensuring that donors andhumanitarian and developmentagencies assist them with thenecessary expertise and resources.

Strengthening the internationalresponse: The introduction of thecluster system has led to progressin the coordination of humanitarianaction. Yet, humanitarian agenciescan still do more to assume their joint responsibilities in respect to

the protection of IDPs, especiallyin the area of disaster-relateddisplacement. Humanitarianagencies can also improve theircapacity to make the concept ofprotection more operational.

Bridging the gap betweenemergency assistance and long-termreconstruction and development: It is unacceptable and shameful thatIDPs are oen in a worse situationmany years aer a crisis thanthey were during the emergencyphase. More exible fundingmechanisms as well as a readiness by humanitarian and developmentactors to work hand in hand earlyon in crises are a necessity.

Defending humanitarian space: IDPs and other crisis-aectedpopulations will continue to suerthe consequences of diminishedor compromised humanitarianaccess unless we develop new,innovative approaches such asassistance by ‘remote control’ ordevelopment interventions in themidst of a crisis that strengthen theresilience of communities at riskof displacement or the absorptivecapacities of host communities.

Ensuring accountability forarbitrary displacement: Arbitrarydisplacement is a violation of theGuiding Principles and the bindinginternational norms they reect. In

its most egregious forms, arbitrarydisplacement may amount to crimesagainst humanity or war crimes.If we are serious about preventingarbitrary displacement, we haveto end the impunity prevailing inmany displacement situations and bring perpetrators of such crimesto justice and ensure that victimsreceive appropriate reparations,including compensation.

Ending the politics of protracteddisplacement: In many countries,people languish in situationsof protracted displacement dueto a lack of political will to nddurable solutions for them. Durablesolutions, based on voluntaryand informed decisions of thoseconcerned, are the best wayto protect the human rights ofinternally displaced persons andto provide a measure of reparationfor the violation of these rights.

Walter Kälin (walter.kaelin@oefre.

unibe.ch) was the UN Secretary-General’s Representative on the

Human Rights of Internally Displaced

Persons from 2004 to 2010. He

continues to teach international

and constitutional law at the

University of Bern, Switzerland.

1. For this and other gures, see IDMC’s annualpublication Internal Displacement, Global Overview of Trends and Developmentshp://www.internal-displacement.org/global-overview.

2. Oce for the Coordination of Humanitarian Aairs,Internal Displacement Monitoring Centre and theNorwegian Refugee Council, Monitoring DisasterDisplacement in the Context of Climate Change: Findings of a Study by the United Nations Oce for the Coordination

of Humanitarian Aairs and the Internal Displacement Monitoring Centre (Geneva, September 2009).

3. See also article by Katinka Ridderbos, pp36-7.

4. For more details see my 2010 report to the HumanRights Council, UN Doc A/HRC/13/21, paras. 39 .

IDP camp being dismantled, Gulu, Uganda, July 2009.



46 GENERAL ARTICLES

F M R 3 7

Demarcations between a trackedperson, a smuggled person, arefugee, a documented migrantand an undocumented migrantare spelled out ever morepainstakingly in internationalconventions and in domestic lawsand policies but the reality ofpeople’s lives is far more complexthan one label can encompass.

A migrant worker from Burmain Thailand will nearly alwaysexplain the cause of their migrationas economic but probe a liledeeper and the repressive natureof the military dictatorship quicklyemerges as the root cause ofpoverty and migration. They couldreturn home but they would ndit dicult to survive if they did.

These economic migrants use brokersto reach the Thai-Burma borderin order to avoid the landmines

and the check-points, and thenthey use brokers in Thailand tond employment, because withoutdocuments they cannot travelwithin the country. They are found jobs working for 10 hours a dayin garment factories, as domesticworkers, and in other manual jobs, paid US$2-4 a day (the legalminimum wage is $5-7 a day), andthreatened with deportation if theymake any demands for their rights.Have these migrants commied thecrime of being smuggled and arethus deserving of punishment anddeportation or are they victims oftracking and therefore deservingof protection and compensation?Or should they be respected as

people taking responsibility fortheir own survival and for thesurvival of their communities?

International law will never beable to respond eectively to theinnite combinations of experiencesof migrants when the root causesare not addressed and when someof the responses themselves createnew categories of people. Those whoarrive on rickety boats in unsafewaters do so because they have been excluded from the normalroutes and legal means to travel.

Resisting categorisationBecause of the dierent legalprotection regimes for refugees andtracked persons and the generallack of one for migrants, the threegroups are also treated as if theykeep themselves apart. There areindeed situations and policies whichdo separate them. In Thailand, the

140,000 recognised refugees fromBurma housed in camps along theThai-Burma border are not allowedto leave the camps and so have nointeraction with either migrantworkers from Burma or the localThai population. The estimatedtwo million migrant workers fromBurma currently living and workingin Thailand are encouraged to liveon their work sites. Factory workerslive in dormitories where hundredsof workers claim a space the size of amat, and where the gates are rmlyshut with a security guard keepinga watchful check that no outsidersenter the compound. Constructionworkers live in shacks in the shadowof the mansions they are building.

Tracked persons are conned inisolated private houses cleaning,

cooking and on call 24 hours a dayfor abusive employers, or in atrociousconditions on shing boats. Thedierent categories of migrants are both isolated from each other andsegregated from the local population.

However, despite these segregations,migrant workers, refugees, trackedand smuggled persons do sometimesmove together and they dosometimes work together. A raid byanti-tracking ocials of a seafoodprocessing factory in Thailandexposed sleeping quarters in the roofraers for tracked persons whileother workers in the factory livedin another area. Brothels may havesex workers who come to work andleave to go home and a group whoare kept there permanently even ifthey want to leave. Migrant workersknow if there are tracked victimsamong them; if migrants were givenprotection and assurances that theythemselves will not lose their ownlegal status or be deported, migrant

workers could be the key playersin addressing tracking.1 To cite arecent example, on 24 January 2011,the Bangkok Post carried a story ofhow Burmese migrant workers hadreported the fate of a Ukrainian manwho, it appears, had been detainedin a state of servitude in a factory inBangkok for 14 years. The migrantworkers who were also working inthe factory looked aer him; whenthey le the factory they wrote tohis family and later led embassyocials to the factory to free the man.

Eliminating the culture of toleranceof exploitation of all migrant workerswould help ensure that workingconditions for all workers were

What’s in a label?Jackie Pollock

The proling of people who move is being increasingly institutionalised.They may be labelled the ‘migrant worker’, the ‘refugee’ or the ‘trafcked

person’ but people’s life experiences resist being so neatly categorised.

accompany it, political leadersmust guide our governmentsand institutions by providing theinternational vision and leadershipthat global migration demands.

Sergio Marchi ([email protected])

is Special Advisor to the Secretary

General of the International Catholic

Migration Commission. He is also a

Senior Fellow with the International

Centre for Trade and Sustainable

Development, and teaches in the

International Relations Department

at Webster University. He was

Canadian Minister of Citizenship and

Immigration, Canadian Ambassador

to the UN and WTO in Geneva, and

Commissioner on the UN Global

Commission on International Migration.

1. Connecting the Dots available at hp://www.icmc.net/pubs/connecting-dots More roundtables and governmentmeetings have since been held in Brussels, New York andWashington, including a session with UN Ambassadorsin New York.

2. Willy Brandt Commission in 1980; Commission onGlobal Governance in 1993; New International Regimefor Orderly Movement of People in 1997; Berne Initiative

in 2001; Commission on Human Security in 2001; SocialDimension of Globalization in 2004; Global Commissionon International Migration in 2005.

3. hp://www.globalmigrationgroup.org

4. hp://www.gfmd-fmmd.org



GENERAL ARTICLES 47

F M R 3 7

decent and dignied – and wouldalso free tracked persons fromexploitation. If a migrant workercould report any instances ofexploitation or abuse without fearof repercussions, employers wouldnd it much harder to trac or abusemigrants, and working conditionswould be improved. Migrant workerswould have more bargaining powerto improve their conditions knowingthat employers could not replacethem with forced labour. If migrantworkers are to be recognised asimportant agentsin the ght againsttracking, theymust be recognisedand supported by

anti-trackinggroups as wellas by migrantrights groups.

Migrant rightsgroupsIn Thailand,a network ofwomen calledWomen Exchange2 brings togetherwomen migrantsfrom diverse backgrounds,ethnicities andoccupations – including manualworkers, labour activists, politicalexiles, sex workers, refugees andhuman rights activists. They meetmonthly, in various locations alongthe border, in order to break downthe barriers created between thedierent categorisations, to developunity and to strategise collectivelyfor ways to promote their rights.

Today there is pressure on rightsgroups to dene and demarcatetheir territory. Anti-trackinggroups, refugee groups and migrantsgroups each dene their ownmessages, services and advocacy.Governments and local populationsreact dierently to each of thesegroups. Migrant groups are at besttolerated and at worst are banned by countries of origin. Failed statesdo not want their failures broadcast;migration is a direct response tosocial and economic failures andthey prefer to keep it hidden.

Migrants rights groups basedin Thailand cannot set up sisterorganisations in the country of

origin to inform migrants of theirrights prior to departure because themigration of millions of Burmesecitizens over the last 20 years has been ignored by the regime, andall migrants have had to migratewithout any documents. Only sinceearly 2009 has the regime agreedto issue documents (in the form ofa temporary passport valid onlyfor crossing into Thailand) to somemigrants but this has been a purelyadministrative procedure andthere have been no corresponding

measures to educate and empowerthe migrants. Refugees also exposepolitical and civil failures and thussuer a similar response from thegovernments of the countries oforigin. Anti-tracking groups,on the other hand, receive publicacknowledgement and recognition oftheir work although on the groundthey oen face a complete lack ofcooperation by local authorities who

may be involved in tracking.

One anomaly, however, is that theBurmese military regime seems towelcome discussions and diversionsabout a handful of unscrupuloustrackers or about the exploitationof their citizens in another country.The regime which has long usedforced porters, child soldiers andother forms of forced labour enteredenthusiastically into the CoordinatedMekong Ministerial Initiative AgainstTracking (COMMIT), hostingmany of the meetings and pledgingto combat tracking throughprevention measures, prosecutionand protection. The anti-trackingframework, unlike forced labour,

allows them to lay the blame onsomeone else. It also rewards whatauthoritarian governments do best: enforcing the law, arresting,detaining. In addition, suchregimes can earn some praise in theinternational arena by addressing agross human rights violation such astracking, where generally the rightsagenda is far from their priority.

Anti-tracking, refugee andmigrant rights groups need to facethis hypocrisy head on. They need

to join forcesto expose theconditions whichresult in peoplehaving to leave

their countries oforigin, whetherfor violations ofeconomic, politicalor civil rights.They have to unitein challengingthe restrictivemigration regimeswhich increasemigrants’ andrefugees’ risksof death, abuseand tracking.They need tocome together

to confront the policies which usecategorisation to segregate peopleand which make insecurity andimpermanence a part of so manypeople’s lives. They must join withunions and local workers to protestagainst the exploitation of manualand service workers. Migrantworkers, refugees and trackedpersons and their support groupsmust start to question the labels

that are assigned to people butwhich reect only a small portionand time of a person’s life.

Jackie Pollock (jackiezaw@gmail.

com) is Director of MAP Foundation,

a Thai NGO working to promote the

rights of Burmese migrant workers

(http://www.mapfoundationcm.org).

This article has been adapted from

a longer article published in GAATW

Alliance News http://tinyurl.com/

GAATW-Alliance-News-July2010

1. See ‘Beyond Tracking Jams: Creating a Spacefor Tracked Women’, Jackie Pollock, The Irrawaddy Magazine, Feb 2001, Vol 9, No 2hp://www.irrawaddy.org/article.php?art_id=2140.

2. Supported by MAP Foundation.

J o

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48 GENERAL ARTICLES

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This is an important moment inthe history of Sri Lanka. Withmost of the Sri Lankan refugeesin the camps in Tamil Nadu inIndia wanting to return to theirhomeland, the Organisation for

Eelam Refugees Rehabilitation(OfERR1) is working to preparethem for the return in ways that will benet the community at large.

The state of Tamil Nadu used to beknown as a power surplus state.However, over the last few years,increased industrial growth has ledto an increased demand for power. Asa result, the rural areas where mostcamps are located have regular powercuts. Refugees are mostly dependenton the free electricity provided inthe camps and are not able to investin expensive alternatives such asgenerators. Community life andeducational activities are forever being interrupted – especially

in the evenings – by the powercuts and low voltage periods.

Solar energy is one of the mainenergy sources available inabundance in both Tamil Nadu

and Sri Lanka. OfERR’s solarenergy project aims to enableand encourage the refugees tocultivate a habit of renewableenergy, which will be useful tothem on their return to Sri Lankaas well. The project is working to:

■■ install solar lights incommunal places

■■ provide hand-held lanternsfor women and children

■■ build awareness ofenvironmental issues andsolar energy in particular

■■ create awareness amongthe refugees of eco-friendly

agricultural techniques andincome-generation opportunities, both for the present and fortheir future in Sri Lanka

The project targeted all 20,358households, comprisingapproximately 72,789 Sri LankanTamil refugees housed in 112 refugeecamps spread over 25 administrativedistricts in the southern Indian state

of Tamil Nadu.2 The populationis almost entirely ethnic Tamils,with just a small group of some400 Muslims. 79.75% are Hindus,while 19.5% are Christians. Therefugees come from several areasin the North and East of Sri Lanka.This is a community of people whoremain dependent on the Indiangovernment’s support for care,shelter, food and nancial supportin order to survive. Generally, thoserefugees who were able to supportthemselves le the camps aera short stay and continue to liveindependently outside the camps.

Some 75% of the refugee populationare already beneciaries of OfERR’son-going work. 95% of OfERR’s

Renewable energy in the campsof Tamil NaduFlorina Benoit-Xavier

The Organisation for Eelam Refugees Rehabilitation is promotingsolar energy in all the refugee camps in Tamil Nadu with the aim ofencouraging those returning to Sri Lanka to take the commitment andtechnology with them.



GENERAL ARTICLES 49

F M R 3 7

workers are themselves refugees fromcamps while the remaining 5% arerefugees who live outside the camps.

Solar lightingFollowing a needs assessment ofthe camps, solar lighting systemshave been installed in 80 communaltutorial centres in order to providea secure and suitable environmentfor students to continue theireducation. Solar lighting was alsoinstalled in the communal areasof some camps where there waseither no electricity or a permanentproblem of low voltage.

OfERR also provided about 100solar lanterns for the women and

children in the camps. Oen womenand girls are afraid to venture out inthe dark to go to a dark toilet. Thiscan result in a variety of illnessesincluding urinary tract infections.These lanterns can be carried byhand or hung from a hook, and socan also be used at home duringthe night and during power cuts.

OfERR bought an additional 40 solarlanterns, giving ten to each of fourwomen’s groups. These lanternswill then be sold by the women’sgroups to the people in the campson an instalment basis. They willthen purchase more lanterns withthe income generated and continuethe process. In this way the women’sgroups will become agents of

promoting solar appliances in thecamps and it will also be a means ofincome generation. Camp residentscurrently use kerosene lanterns butthese emit unhealthy fumes andalso present a heightened risk of reas camp huts – made of thatch andtar sheets – are highly ammable.

OfERR conducts camp-level anddistrict-level training for bothstudents and youth3 on environ-mental protection and alternativesources of energy. These programmeswill be undertaken through thecamp-level student forums and youthgroups which are already active inthe camps.

Training for the futureOfERR has a proven track record inestablishing processes and practiceswhich are cost-eective having been developed over a long periodof working with limited nancialresources. OfERR also makes best useof the most available resource – therefugees themselves. It takes intoconsideration the sensitivity of boththe refugee population and the hostlocal communities while maintaininggood interaction with the governmentand its workers. Refugee workersand communities have worked withOfERR for several years to set uprepresentative commiees at camplevel. These commiees coordinaterehabilitation activities in the camp,and they include students’ forums,

advocacy groups, self-help groups ofwomen, sports groups, health teamsand a body with representatives fromeach of these groups called the campcoordination commiee. Through thecommiee, refugees are able to takepart in deciding what activities areimplemented in their camps as wellas how they should be implemented.

For those wishing to return toSri Lanka, OfERR taps into therefugees’ culture of self-suciency,helping them to learn sustainable,low-energy technologies. Cleaner,renewable technologies are the onlyway forward in both developedand developing countries. Indeveloping this renewable energy

programme, OfERR is able toprovide eco-friendly suggestions tothe refugees who will use it in thecamps and then take these conceptsand know-how with them to theisland to which most of them wantto return. Not only is there light atthe end of the tunnel for them butalso light for the tunnel itself.

Florina Benoit-Xavier (orinabenoit@

gmail.com) is the Operations Manager

with OfERR. This project was made

possible by the generous support of

the Chelvanayagam Foundation.

1. hp://www.oferr.org

2. Number of refugees and the camps is uid, dependingon the number of returns. This was the status as ofDecember 2010.

3. School and college students plus those who havecompleted their education and are under 35.

All photos: OfERR



50 GENERAL ARTICLES

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Reecting US preoccupations overthe past decade, the debate overimmigration there has generally been framed in terms of economicsand security. The history andpolitical climate surrounding USimmigration policy make asylumcases based on fears of gang-based

persecution notoriously dicultto win but recent changes mightsignal the beginnings of a moreexpansive humanitarian policy.

The US remains without ananimating vision on immigration but President Obama’s campaignplatform – the last time the currentadministration set out a coherentview on immigration – mainlyconceptualised immigrants as“undocumented workers” or aspart of a “ow of illegal trac” thatmust be regulated and stopped.

Daniel Sharp, legal director of theCentral American Resource Center,1 says that the US government operateson the assumption that anyonecoming from south of the border isseeking a beer life economically.But, he estimates, half or more of theasylum cases being led by CentralAmerican immigrants are relatedto street gangs, an observation thatis unsurprising given the actual

situation in many of these countries.

In 2007, a UN report presentedthe drastic problem of growinggang membership and inuence.According to this report, Guatemalahad 434 gangs with a totalmembership of 14,000, while inHonduras there were 112 gangs with36,000 members. Gang membershipper 100,000 people was calculatedas: Belize 36, Panama 43, CostaRica 62, Nicaragua 81, Guatemala111, El Salvador 152 and Honduras500. For Honduras this means that5% of the entire male populationaged 15-24 is a gang member.

In 2009 a US State Departmentreport on Guatemala estimated that3,000 children nationwide wereinvolved in street gangs: “criminalsoen recruited street children forpurposes of stealing, transportingcontraband, prostitution, and illegaldrug activities.”2 The International

Crisis Group released a report in2010 noting that “Guatemala has become a paradise for criminals” andpointing out the eect of gangs onentire segments of the population:“Criminal organisations trac ineverything from illegal drugs toadopted babies, and street gangsextort [from] and terrorise entireneigh bourhoods, oen with thecomplicity of [the] authorities.”3

Applicants for asylum includemen and women who fear, andhave been victims of, gang-basedviolence, young men targeted forrecruitment, and former gangmembers. Taken together, theirclaims form a litany of miseries andfears that tend to follow a paern— repeated threats and instancesof brutality, family membersdisappeared or killed — that depictstheir lives in these countries asimbued with terror and violence.

Some asylum cases that came to court

in the US in 2010 include: a youngMayan who had protested aboutlow wages in the sugarcane eldsand had been threatened and beatenthree separate times, during whichone of his assailants said “the nexttime, we will kill you if you [have]not gone back to work”; a womanwhose uncle’s military connectionsled to her receiving threats; youngmen who had resisted gangrecruitment and been threatened;and former gang members whohad le and were afraid to return.All of these cases were denied.

One problem is the diculty inestablishing persecution. Accordingto previous case law, fear of “general

strife” is not by itself enough to makea case for asylum. One establishedprecedent denes persecution as an“extreme concept … mere harassmentdoes not amount to persecution.”

Furthermore, even if persecution isshown to have occurred, applicantsmust show that it is based on oneof ve grounds: race, nationality,religion, political opinion and/or

social group. Gang-based asylumcases are usually argued on thegrounds of the last two, either whereopposition to or refusal to join a gangis depicted as a political opinion orwhere young women and men areconstrued as a social group targetedfor violence or recruitment by gangs.

According to a lawyer who hasworked with such asylum cases,“Political opinion that has qualiedin the past for asylum… such ascases where people resisted theShining Path [in Peru]… theseorganisations had a more explicitpolitical agenda but the amountof power that they wielded …is comparable to that of gangs.”

Secondly, government complicity inthe reinforcement of, or their inabilityto protect against, persecution must be established. While nationwideeorts to combat violence and crimein Central American countries arenot certain to succeed, and collusion

on the part of local authorities has been noted, such bare facts are oennot sucient in court. Immigrantsmust show how repeated eortsto elicit help from the local policeresulted in a refusal or clear-cutfailure to help; being too afraid tocontact police in the rst place orexternal diculties that render aninvestigation futile have not countedas substantial evidence in pastcases. Additionally, asylum seekersmust show why they cannot justmove to another part of the countryin order to escape persecution.

It is no surprise then that it isextremely dicult for applicantsto obtain asylum if their claims

Gang persecution as grounds forasylum in the USGracye Cheng

A substantial group of Central American immigrants have been lingasylum cases in the USA based on fears of gang-based persecution.



GENERAL ARTICLES 51

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are based on gang- or drugcartel-related violence.

Humanitarian asylum reformsThe near impossibility of securingasylum based on fears of gang-basedpersecution calls into question theseemingly humanitarian aspirationsof the law. The practice of anexpansively humanitarian asylumpolicy in the US has a long historyof being mixed up in politics. Evenduring the height of their civil warsand the aermath, Guatemalansand Salvadorans were characterisedas economic migrants as a resultof a political stance by the Reaganadministration, which denied thatcivil rights violations were being

perpetrated by governments thatwere allies of the US. In 1984, only3% of asylum cases for Guatemalansand Salvadorans were granted.

“When I read articles and I hearhow people in general in the [US]talk about south of the border, Ihear that most people come here foreconomic reasons,” an immigrationlawyer says. “In the eld I workin that’s not really the case; it’san issue of the breakdown of thecountry or widespread violence.”

This generalisation feeds into theoodgates argument, the fear ofleing in more immigrants when the

general perception is that there arealready too many. If fear of gangs isgrounds for being granted asylum,a huge number of people wouldsuddenly qualify, it is argued.

In terms of reform, legal theoristand lawyer Mahew Price believesin conning asylum, in practice,to a more restrictive denitionwhen government involvement inpersecution can be proved. For casessuch as gang-based persecution,which reects a breakdown of thestate rather than persecution by thestate, he recommends expandingthe denition of TemporaryProtected Status (TPS) which iscurrently used primarily in the

case of environmental disasterssuch as Hurricane Mitch.

This would allow immigrants facingthreats and violence to enter on thegrounds that they can then returnif the situation in their countriesimproves. If there is no improvementwithin a specied amount of time,such as ve years, immigrants canthen apply for permanent status. Thecurrent TPS model does not have apathway to permanent residency,meaning that immigrants can bestuck in limbo for years. Such achange, however, is unlikely tohappen without a shi in publicsentiment. Anti-immigrant groups

already criticise TPS because theyfeel that it allows immigrants withthis status to remain indenitely.

Price acknowledges this majorobstacle: “The issue is that to changeTPS in a way that is more generousis not something that’s going to bepolitically palatable when there’s alot of anti-immigrant sentiment.”The only thing to do is to continueaempting to le asylum cases in thehope that change comes through thecourts. There have been, for example,two recent cases in the US courtswhere ex-gang members have beenrecognised as a particular socialgroup, which seem to be seing legalprecedents and oering the potential

for a change to a more sympatheticand exible approach by the courts.4

Gracye Cheng ([email protected].

harvard.edu) is a student at Harvard

Law School. She was a reporter at

Central American Report, a political

weekly magazine based in Guatemala

City.

1. CARECAN was founded in 1983 in the midst of theCentral American wars to help refugees from El Salvadorhp://www.carecen-la.org

2. US Bureau of D emocracy, Human Rights, and Labor,2009 Country Reports on Human Rights Practices, hp://www.state.gov/g/drl/rls/hrrpt/2009/wha/136114.htm

3. Guatemala: Squeezed between Crime and Impunity, hp://tinyurl.com/ICG-Guatemala

4. Benitez Ramos v Holder ( 2009, 589 F.3d 426) hp://caselaw.ndlaw.com/us-7th-circuit/1499189.html andUrbina-Mejia v Holder (2010, 597 F.3d 360) hp://caselaw.ndlaw.com/summary/opinion/us-6th-circuit/2010/03/05/168573.html

In response to a growing number of asylum claims

connected with the activities of criminal gangs, in March

2010 UNHCR issued a Guidance Note on Refugee Claims

relating to Victims of Organized Gangs. The phenomenon

of gangs and gang violence is increasing in various

countries of the world, including in El Salvador, Guatemala,

Honduras, Jamaica, Brazil and the Russian Federation,

and has proved difcult for many states to address. The

result has been a steady outow of people from these

countries seeking asylum in countries including the US,

Canada, Mexico, Australia and the European Union.

The Guidance Note provides legal interpretative guidance

for governments, decision-makers, practitioners and UNHCR

staff carrying out refugee status determination. Its scope

is not limited to a particular type of gang or region but it is

intended to be relevant for a wider range of claims relating

to organised criminal groups, including street gangs, youth

gangs and other types of criminal organisations such as

drug cartels. The Guidance Note provides an overview of

gangs and their practices, describes how different groups

and individuals in society may be affected and targeted

by gangs, and sets out guidance on how the elements of

the refugee denition contained in Article 1A of the 1951

Refugee Convention apply to gang-related asylum claims.

One of the central legal questions addressed in the Guidance

Note is the establishment of a link between the persecution

feared and one or more of the Convention grounds i.e. race,nationality, religion, membership of a particular social group

and political opinion. It has been argued by some jurisdictions

that victims of common crime are not protected by the

1951 Refugee Convention and that such individuals are

simply targeted for their money or for reasons of retribution.

However, as UNHCR explains, while gang violence may

affect large segments of society, certain individuals such as

marginalised young people from poor backgrounds and those

who refuse to comply with gangs are at particular risk and

can constitute a ‘particular social group’. Victims of gangs

can also be persecuted because of their political opinion,

especially where criminal and political activities overlap,

thus qualifying as refugees under the 1951 Convention.

UNHCR’s Guidance Note on Refugee Claims Relating to

Victims of Organized Gangs is available at:

http://www.unhcr.org/refworld/docid/4bb21fa02.html.

Organised gangs: UNHCR Guidance Note



52 GENERAL ARTICLES

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Every year an unknown number ofunaccompanied migrant childrenenter the United Kingdom.1 Insome cases, these children have

been tracked for labour or sexualexploitation. In other cases, theyhave le their countries at their owninstigation or at the wishes of theirparents or guardians for safety frompersecution or for economic reasons.Some are victims of domestic violenceor even accusations of witchcra.

The UK, like other Europeancountries, treats ‘unaccompaniedasylum seeker children’ (UASC) 2 more favourably than other asylumseekers, both in terms of receptionservices and asylum procedures.

Reception services: UASC are theresponsibility of the social servicesdepartment of the local authorityin whose area they are for the time

being. Social services carry out anassessment and immediately provideassistance. UASC under the ageof 16 are normally placed with afoster parent or in residential care.Those of the older age group might

be placed in more independent

living arrangements, for examplein shared ats or supervisedaccommodation. Once a child isaccommodated, the local authorityhas further ongoing duties tosafeguard and promote the child’swelfare, provide an appropriatepackage of support and conductreviews on a regular basis to ensurethat the child’s needs are being met.Overall, UASC should not be treateddierently from British childrenwho have been taken into care.

Asylum procedures: UASC aresubject to an asylum determinationprocedure which is designed to bemore appropriate for a child than thenormal procedure. They also have the

right to receive legal aid to preparetheir cases, to be accompanied tointerviews and to be represented atasylum appeals, and to have their

claims assessed by a specialistchildren’s unit. Furthermore, theyshould not be subject to immigrationdetention. The consequences of anadverse decision (refusal of theirclaim for asylum) are also lessextreme in the short term for a childthan for an adult because childrenare normally granted discretionaryleave to stay until they are aged 17and a half if there are no adequatereception arrangements in theircountry.3 This means that theywill be entitled to live, study andwork in the UK until that age.

Problems with current practiceOne of the issues oen arising withrespect to UASC is whether they areindeed children. Where the age isdisputed, UASC may be treated asadults. Many of these disputes remainunresolved. The Home Oce suggeststhat the main problem is that of adultspretending to be children in order toaccess services and support to whichthey are not entitled. However, it is

oen in the economic and practicalinterests of the local authorities not toaccept young asylum seekers for long-term care. It is the local authoritiesthat carry out age assessments, whichare then forwarded to and reliedupon by the Home Oce in thecontext of asylum determinations.

The local authorities’ competenceto carry out age assessmentsraises serious conicts of interests.The procedure is notoriouslysubjective, and is known to befallible for a number of reasons: agedocumentation is oen regardedwith suspicion; it is dicult toobtain consistent testimonies fromchildren who have to speak through

interpreters, have a dierent calendarsystem from ours, and have lile orno education; some social workers donot have sucient skills and expertiseto make reliable assessments,relying too heavily on physicalappearance or socially constructedideas of appropriate behaviour to

determine age; sometimes childrenare scared, do not trust adults andonly repeat what smugglers or familymembers have told them to say.

There are also aws in an asylumdecision-making process that doesnot take into sucient account thatchild asylum seekers are children,particularly when it comes to

believing a child’s story. In its sixthQuality Initiative report, UNHCRUK reports that: “Some Case Ownersare particularly adept at creating anoptimal interviewing environmentfor a child and questioning a child inan appropriately sensitive way so asto facilitate expression and disclosureof evidence. However, UNHCR’sassessment of 21 interviews foundsome erroneous practices that goagainst the child’s best interests, denythe child the opportunity to freelyexpress their reasons for claimingasylum, or fail to ensure that anyvulnerabilities or special needs of thechild are taken into consideration.”4

Until recent litigation, it was commonpractice for immigration lawyersto obtain paediatric (i.e. medical)reports on age. However, it is nowaccepted that as medical reportshave a margin of error of two yearseither way, they cannot be conclusiveevidence of age, and should only

be taken into consideration withall the evidence presented.

Age assessment results may haveserious consequences for a largenumber of UASC as it can determinehow long they are entitled tosupport and remain in the UK. In2008, 8% of UASC were grantedasylum and 53% were granted

Unaccompanied asylum-seekerchildren: awed processes andprotection gaps in the UKKatia Bianchini

My experience of working as an immigration lawyer on unaccompaniedasylum-seeker children’s cases has highlighted a number of serious awsin the processes which determine their futures.



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discretionary leave to remain ininitial decisions.5 Furthermore, ifasylum is refused and discretionaryleave granted for less than oneyear, such a child has no right ofappeal. If children are determinedto be adults and treated as such,they can be detained, more easilytransferred to another EU countryunder the Dublin II Regulation6 or,if their asylum is refused, returnedto their country of origin or ledestitute and vulnerable in the UK.

The diculties that many UASC facein relation to being aware of theirrights and accessing appropriatecare and support are exacerbated

by the fact that these children,

including those who have beengranted discretionary leave, arenot provided with a legal guardian(i.e. a court-appointed individual torepresent the child’s best interests),unlike in other European countries.7

Upon reaching the age of seventeenand a half, UASC can apply forfurther leave to remain. Thisapplication is usually refused by theHome Oce unless it can be shownthat removal from the UK would bein breach of the European Conventionon Human Rights, typically theirright to private and family life underArticle 8. The common reasons forrefusal are that the applicant is nowan adult and no longer needs care, hasnot established private or family life(because only a short period of theirlife has been spent in this country),and has no family members livinghere. At this point, the Home Oceorders their removal, and warns thatoverstaying is an oence. The HomeOce also provides information on

voluntary returns, arranged withthe International Organizationfor Migration. Many, if not most,

former UASC whose applicationsfor further leave to remain arerefused remain unlawfully inthe UK with no support, unableto continue their education, andusually out of contact with thelocal authority or their lawyers.

RecommendationsChildren and young people subjectto immigration control are especiallyvulnerable as their welfare anddevelopment are strictly linkedto obtaining and maintaininglawful status. However, despitethe special provisions applicableto UASC, the approach is still totreat them as migrants rst andchildren second. In order to establish

an eective protection regimefor UASC and young adults, thefollowing steps should be taken:

■■ Review age assessment procedures.For instance, the assessment could

be conducted over a period ofseveral days to allow observationof the child’s/young person’s

behaviour and relationships.Social workers involved inage assessment should receiveappropriate guidance, trainingand support. The process of age

assessment should allow for inputfrom all who play a role in thechild’s life – health professionals,psychologists, teachers, youthworkers, etc – and should includeall the information that might berelevant to the decision, includingpaediatric and medical evidencewhere this is available. Anindependent age assessment panelcould help the regional assessmentcentres to deliver a consistentand credible service which is lesslikely to be challenged by others.

■■ Provide local authorities withsucient funds to deliver an

appropriate package of supportand care.

■■ Foster cooperation betweenimmigration ocers andsolicitors representing UASC.

■■ Address the legislative gap onhow best to protect young peoplewhen they have exhausted alltheir rights to appeal and nolonger have any legal status.

■■ Grant permanent protectionto UASC who are victimsof tracking.

■■ Establish a formal system ofguardianship for UASC. Theguardian would have a statutoryrole and should be appointed by

a statutory body to safeguardthe best interests of the childand provide a link between allthose providing services andsupport. The guardian should beexpected to intervene if public

bodies act in contravention oftheir legal duties towards a child.

Katia Bianchini ([email protected])

is an immigration lawyer at Turpin

& Miller Solicitors, Oxford, UK, and

a post-graduate researcher at the

Law School of York University, UK.

1. Statistics are only available for those who make anasylum application (5,685 in 2008). Of these, 1,400 (24.6%)had their age disputed and were treated as adults.

2. Children under the age of 18 who arrive in the UK,claim asylum, and are without close adult familymembers either accompanying them or already present inthe UK whom they can join.

3. Heaven Crawley, When is a child not a child? Asylum, agedisputes and the process of age assessment, Immigration LawPractitioners’ Association 2007, p152.hp://tinyurl.com/ILPA-Crawley2007

4. UNHCR Quality Initiative project. Key observations andrecommendations April 2008 – March 2009hp://tinyurl.com/UNHCRQI6

5. The Children Legal Centre, Fact Sheet,hp://tinyurl.com/CLCFactSheet

6. Dublin II Regulation determines which EU MemberState is responsible to examine an asylum application.hp://tinyurl.com/DublinIIRegulation

7. European Migration Network Synthesis Report: Policies onthe Reception, Return, and Integration Arrangements for, andNumbers of, Unaccompanied Minors: An EU ComparativeStudy. May 2010. p53hp://tinyurl.com/EMNMay2010

Young and out of place: FMR 39 call for articles

Being displaced involves not just a change of physical location

but a dislocation of many aspects of normal life. Families are

divided, social relations are broken, education is disrupted, and

access to familiar meeting places is no longer possible. But life

goes on and someone who is forcibly displaced has to try to

nd ways to re-create what is lost or to nd substitutes for it.

Young people can be susceptible in particular ways to the

stresses of being physically and socially dislocated at a time when

they face important changes, rites of passage and formation

of adult relationships. The society from which these young

people come and on which they depend may no longer exist

for them in a meaningful way. Local, or ‘host’, communities are

often ill-equipped to support them. Camps or collective centres

create opportunities for damaging or exploitative behaviours

and are poor substitutes for a normal social environment. And

outsiders’ responses to the needs, and rights, of displaced

people rarely cater for the social needs of young people.

The FMR editors are looking for practice-oriented articles

(focusing on situations of forced displacement) addressing

this theme.

See http://www.fmreview.org/young-and-out-of-place/

for full details. Deadline for submissions: 17 October 2011.

Due out February 2012.



54 GENERAL ARTICLES

F M R 3 7

Currently, the bulk of educationalhumanitarian assistance is directedtowards primary education,relegating youth and adult educationto a marginal status. This is reectedin both political priorities andresource allocation.

A survey conducted by theWomen’s Refugee Commissionfound that education programmes beyond primary level are few andfar between in states aected byconict.1 Additionally, at presentno international agencies dealingwith displaced people have aspecic policy or strategy directedat literacy or adult and youth basiceducation.2 Considering that theperiod of displacement for mostIDPs now lasts over a decade, theneed for comprehensive educationalprogramming during this timeis critical.

Three main areas within youthand adult education merit furtherdevelopment: basic literacy,secondary education, and technicaland vocational training.

Basic literacy education for youthand adults is a critical area of needamong displaced communities.In December 2009, the Belem

Framework for Action was adoptedat the Sixth International Conferenceon Adult Education in Belem, Brazil.3 It called for “redoubling of eorts toreduce illiteracy by 50 percent from2000 levels by 2015.” Additionally, itemphasised the need for increasedmobilisation of resources andexpertise, provision of relevantcurricula and quality assurancemechanisms, and a reduction in theliteracy gender gap. Currently, thereis a shortage of eective literacyprogramming, particularly inconict-aected areas where it is sowidely needed. Basic literacy is animportant tool for people to be ableto comprehend the world aroundthem and make informed decisions.

Furthermore, literacy is not only ahuman right but also an ‘enabling’right – the key that unlocks thedoor to the enjoyment of manyother human rights, including theright to freedom of expression,the right to participate in publicaairs, the right to work, and the

right to participate in cultural life.

Access to secondary educationis another area that needs to beimproved in conict-aected areasacross the globe. According to theWomen’s Refugee Commission,fewer than 6% of displaced youthare enrolled in secondary educationworldwide. Secondary schoolprovides a seing in which youngpeople learn valuable cognitiveand social skills to becomeproductive members of society.It can also decrease vulnerabilityto recruitment into paramilitarygroups or human tracking whichoen target marginalised youth.Youth are the future leaders of theircommunities and their countries.They require adequate skills toassume this responsibility and become economically competitive.

Technical and vocational trainingalso has a vital role to play in IDPcommunities. Many displaced

persons have lost their primarysource of livelihood and mustdevelop new skills in order to become economically sucient. Forothers, they may nd themselvesfor the rst time needing to earnan income following displacement.Non-formal and exible approachesare an important considerationwithin this sector so as to providegreater options to youth andadults juggling dierent roles andresponsibilities. Although technicaland vocational training programmeshave not been widely implementedin displaced communities, thosewhich have been carried out reportlargely positive results. Inclusionof women needs to be consciously

integrated into programmes sincethey are frequently at a disadvantagein receiving information aboutsuch programmes, particularly intraditionally patriarchal cultures.

Today the right to education remainsan unfullled promise for IDPsacross the globe. In January 2010,UNESCO published its Education for All Global Monitoring Report 2010:

Reaching the Marginalized.4 This reportassessed the global progress madeover the past 10 years towards the sixgoals set by the World Conferenceon Education for All (hosted inDakar in 2000). One of the majorchallenges highlighted in the reportwas achieving progress towards Goal3: ‘Promote learning and life skillsfor young people and adults’. TheUNESCO report notes that, “Unlikeother parts of the Dakar Framework,Goal 3 has been the subject of quietneglect. It has been conspicuous byits absence not just from the agendasof high-level development summits, but also from the campaigns ofnon-governmental organizations.”

According to the UNESCO report,there has also been minimalprogress made towards the goalof halving adult illiteracy – acondition that aects an estimated759 million people over theage of 15, approximately one inevery ve adults. Two-thirds of

the world’s ill iterate adults arewomen. Additionally, as literacyis very language-centric, illiteracydisproportionately aects thosespeaking minority and indigenouslanguages worldwide as they havefewer opportunities to acquireand use literacy skills.5

IntersectionsTo understand the underlyingeducational challenges, it is vital torecognise the intersection betweenpoverty, illiteracy, and vulnerabilityto emergencies. Oen it is thosewith the least resources who arethe most adversely aected. Adisproportionate number of thoseaected by armed conict are

The road to recovery:education in IDP communitiesAmy S Rhoades

There has been a marked failure to incorporate youth and adult educationas a standard component during displacement.



GENERAL ARTICLES 55

F M R 3 7

functionally illiterate. Presently,over half of the 25 countries with thelowest adult literacy rates worldwideare either facing conict or recentlyemerging from conict. Additionally,10 of the 25 countries with thelowest rates of female adult literacyare conict-aected countries.

The intersections amongdisadvantaged groups extend evenfurther. Though global demographicstatistics for IDPs are challengingto ascertain, national surveysconducted in states with high IDPpopulations demonstrate that thoseliving in poverty, ethnic minoritiesand women are disproportionatelyaected by displacement.6 According

to the UNESCO EFA report, theseare precisely the same sectors ofthe population among which lowlevels of educational aainmentprevail. This intersectionalityfurther illustrates the widespread

need for youth and adult educationin IDP communities. Primaryeducation oers great value but by itself is not sucient to providedisplaced persons with the skillsneeded to navigate this transitionaltime and prepare to rebuildtheir lives aer reselement.

Youth and adult education andvocational training need to beintegrated into the humanitarianassistance framework as vitalcomponents of the recovery process.Not only does education deliverlife-sustaining support and stabilityto those displaced by conict but it also provides crucial skillsto prepare IDPs for sustainably

rebuilding their lives, theircommunities and their countries.

Amy S. Rhoades (ed4idps@gmail.

com) works in the Job Creation and

Enterprise Development Department of

the International Labour Organization

(http://www.ilo.org).The views

expressed here are those of the author

and not necessarily those of the ILO.

This article is extracted from the

author’s longer paper Displaced

Futures: Internally Displaced Persons

and the Right to Education http://

www.right-to-education.org/sites/r2e.

gn.apc.org/les/displaced_futures.pdf

1. WRC, Untapped Potential: Displaced Youth (2007)hp://womensrefugeecommission.org/programs/youth/79-untapped-potential-displaced-youth

2. Ulrike Hanemann, Literacy in conict situations (2005)hp://unesdoc.unesco.org/images/0014/001460/146003e.pdf

3. UNESCO, Belem Framework for Action (2010)hp://tinyurl.com/Belem2010

4. UNESCO, Education for All Global Monitoring Report2010: Reaching the Marginalized (2010) hp://unesdoc.unesco.org/images/0018/001866/186606e.pdf

5. UNESCO, The Global Literacy Challenge (2008) hp://unesdoc.unesco.org/images/0016/001631/163170e.pdf

6. IDMC, Internal Displacement: Global Overview of Trendsand Developments in 2008 (2009)hp://tinyurl.com/IDMCGlobalOverview2009

African refugees began migratingacross the Sinai Peninsula to Israelin search of asylum and work fromabout 2006, with numbers increasingin 2007.2 By the end of 2010, therewere 33,273 African migrants inIsrael, up from 17,000 in 2008, andNovember 2010 saw the highestever number of arrivals.3 Most

new arrivals are eeing desperatecircumstances at home, and areseeking protection – not just jobs – inIsrael. Eritreans and Sudanese makeup the two largest African groupsin Israel. Most have temporaryprotection in the form of ‘2A5conditional release visas’ which arerenewable every three months butthey live under the constant threatthat protection will be revoked.Ocially, holders of the visa arenot allowed to work although someemployers overlook this provision.

Asylum seekers nance their journeys in a range of ways. Most borrow money from friends andfamily to pay smugglers to get to

Israel, and repaying this debt is apriority once their basic needs aremet. Any money le over is sent totheir families in the home country – but most do not have money le overto send.

Many migrants began their journeywith an agreed-upon amount and

then were passed to other groupswho demanded additional payment.We heard of cases where groupsof Sudanese or Eritreans in Israelpooled money to secure the releaseof a friend or relative who was being held for ransom in the Sinai.

Most migrants borrow money priorto their departure but we heard ofpeople seing o for Israel knowingthey did not have enough for the fullpayment. One woman said that ifshe had asked her family in advancethey would have refused to giveher the money for the journey butshe knew they would send it if shecalled in distress along the way. Shefelt the risk of running out of money

was worthwhile because geing toIsrael was her best hope for safety.

Geing to Israel is becomingincreasingly dangerous andexpensive. Cases of serious abuseand torture by Bedouin smugglersin the Sinai have been reported,including rape, kidnapping andkilling of those who are unable tocome up with additional payments.Our respondents reported beingtaken by smugglers to within 50metres of the border fence, and told

to run and climb the fence. In thenal stage of the journey severalhundred migrants have been shotand killed by Egyptian police.

Economic migrants orasylum seekers?The Israeli government claimsthat the majority of those whoenter are economic migrants ratherthan asylum seekers, and indeedmany respondents said they came because they were unable to supportthemselves and their families inEritrea and Sudan. However, thereis a close relationship betweenpersecution and lack of livelihoodsin Sudan and Eritrea, and migrationdecisions are inuenced by a

African refugees in IsraelRebecca Furst-Nichols and Karen Jacobsen

A scoping study conducted by the Feinstein International Center (TuftsUniversity) in November 2010 explored the interaction between migration,debt repayments, remittances and livelihoods among Sudanese andEritrean asylum seekers in Israel.1



56 GENERAL ARTICLES

F M R 3 7

combination of factors.4 All ourrespondents mentioned their desireto earn money and send it back home but none cited this as the main reasonfor leaving; rather they ed the “veryserious” situation in their homelands.

New arrivals to Israel try to ndtemporary or day labour jobs through

employment agencies or by standingat the corner of Levinsky Park insouth Tel Aviv. Many do not nd jobs, and many more are underpaidor not paid at all for work done,with lile recourse. Since the end of2008 when the government begangranting temporary protectionto Eritreans and Sudanese, someasylum seekers have opened small businesses including restaurants,internet shops and clothing storescatering to an African clientele.

New or recent arrivals expressedrelief at being in Israel where they arephysically secure, and many of ourrespondents said that they appreciatethe lack of police harassment and

generally safe environment. However,they also expressed frustration at being unable to support themselves.

ImplicationsIsrael is seen as a destination of lastresort; refugees coming there do nothave the money or social networksto get to Europe or America, and it

is likely that the number of asylumseekers in Israel will grow. TheIsraeli government should clarify itsasylum policy by dening temporaryprotection and the conditions underwhich protection would be revoked.

We believe it would be in Israel’sinterests to include social andeconomic rights for those who holdtemporary protection visas. Grantingasylum seekers the right to workwould be in line with internationalrefugee standards and would reducethe state resources needed to supportthem in detention centres. If they hadthe right to work, asylum seekerswould be able to contribute to theircommunities both in Israel and in

their homelands. The government iscurrently planning measures to blockarrivals – including constructinga fence along Israel’s border withEgypt, building a 10,000-persondetention centre in the Negev, andimposing nes on employers – butthese measures are unlikely to stemthe migration ow. Instead, asylumseekers will turn to increasinglydangerous routes. Well-establishedsocial networks and smugglingroutes will facilitate continuingarrivals, even if the risks increase.

At the time of writing (February2011) two unfolding political eventswill have important ramications forAfrican migration to Israel. The vote

in the January 2011 referendum onSouth Sudan has been for secession,and the new state of South Sudanwill come into existence in July 2011.Reportedly, small groups of southernSudanese have already voluntarilyreturned to South Sudan from Israel,and this return movement is likely tocontinue. The creation of a southernSudanese state might reduce futuremigration from the south but it isunlikely to inuence those eeingfrom Darfur. Secondly, the politicalchanges of February 2011 in Egyptcreate a space for its new governmentto address serious human rightsviolations being commied in theSinai and on its border with Israel.It remains to be seen how suchsweeping changes will inuencethe Egyptian smuggling routes.

Rebecca Furst-Nichols (rfurst.nichols@

gmail.com) is Assistant Researcher and

Karen Jacobsen ([email protected])

is a Research Director at the Feinstein

International Center, Tufts University

(http://c.tufts.edu)

This article is based on a longer report

that can be found at: http://tinyurl.com/

FIC-African-migration-Israel

1. The research was based on 24 interviews withSudanese and Eritrean asylum seekers, ve focus groupdiscussions and ten key informant interviews with staof refugee-serving organi sations, all in Tel Aviv.

2. Human Rights Watch, Sinai Perils: Risks to Migrants,Refugees, and Asylum Seekers in Egypt and Israel. New York,November 2008hp://www.hrw.org/en/reports/2008/11/12/sinai-perils-0;Karin Fathimath Afeef, A promised land for refugees? Asylumand migration in Israel. UNHCR Policy Development andEvaluation Service, December 2009hp://www.unhcr.org/4b2213a59.html.

3. Hotline for Migrant Workers, November 14, 2010.See also ‘Inltration record: 1,940 illegal aliens enteredIsrael in Nov’, Ynetnews, 1 December 2010 hp://www.ynetnews.com/articles/0,7340,L-3992729,00.html

4. H Young, K Jacobsen and A Osman, Livelihoods, Migration and Conict. Feinstein International Center,April 2009. hp://tinyurl.com/Tus-April09

Asylum seekers calling home from Tel Aviv.

R e b e c c a F u

r s t - N i c h o l s



GENERAL ARTICLES 57

F M R 3 7

Refugees have rights, as stipulated inthe 1951 Convention Relating to theStatus of Refugees. Unfortunately,these rights are frequently breached.In order to measure the degree ofcompliance with the Convention byhost countries, the US Commiee forRefugees and Immigrants (USCRI)evaluated 52 host countries onfour components of refugee rights.The result is a set of four Refugee

Rights Report Cards, one for eachRights component, and with eachcontaining 52 countries with theirrespective score.1 The USCRIReport Card for the Refoulement/Physical Protection category is given below for illustrative purposes.

This data is interesting but using somesystem of analysis – as discussedoverleaf – would facilitate the assess-ment of refugee rights compliance forindividual countries and for the entireset of countries surveyed.

The four components of the ReportCards, and their respective gradingschemes, are as shown opposite:

Report cards on refugees’ rightsBruce Forster

The US Committee for Refugees and Immigrants has provided valuable data in its Refugee Rights Report Cardsbut further analysis produces even more useful information.

Grades A B C D F

Countriesby grade

Botswana Burundi Algeria Chad China

Brazil Canada Bangladesh Europe DR Congo

Costa Rica Rep. of Congo Cameroon Iraq Egypt

Malawi Ivory Coast Ghana IsraelIsraeli-occupied

territories3

Niger Ecuador India Pakistan Iran

Ethiopia Jordan Panama Kenya

Guinea Mauritania Russia Lebanon

Kuwait Nepal Saudi Arabia Libya

Senegal Rwanda Sudan Malaysia

Serbia Venezuela Syria South Africa

Tanzania Zambia Thailand

Uganda TurkeyUS

Yemen

Refoulement 2 /Physical protection

A: No refoulement; fair asylum system

B: No refoulement but faulty asylum systems

C: Some refoulement but not systematic; governmental harassment andserious physical risk

D: Systematic refoulement; governmental violence against refugees

F: 100+ refoulements; severe governmental violence

Detention/Access to courts

A: No arbitrary detention; access to courts and documentation

B: Lile detention

C: Signicant detention; faulty access to courts and documentation

D: More than 100 arbitrarily detained

F: More than 200 arbitrarily detained; no access to courts

Freedom of movement and residence

A: No restrictions in policy or practice

B: Almost no restrictions in policy or practice

C: Restrictions in policy but wide tolerance

D: Restrictions in policy and practice; harassment

F: Severe restrictions in policy and practice

Right to earn a livelihood

A: No restrictions in policy or practice

B: Almost no restrictions in policy or practiceC: Restrictions in policy but wide tolerance in practice

D: Restrictions in policy and practice; harassment

F: Severe restrictions in policy and practice

Source: USCRI, World Refugee Survey 2009

Table 1: Refoulement /Physical protection



58 GENERAL ARTICLES

F M R 3 7

While the four tables containvaluable information for assessingthe accountability of host countries,the data, as presented, is not veryconvenient for further analysis.Analysts or other interested readersneed to go through each of the fourtables picking out the set of scoresof their country or countries ofinterest. In order to make this moreconvenient, a single Report Cardfor the set of host countries alongwith their respective scores can begenerated using the data containedin the four tables. A stylised versionwith selected countries (for reasons ofspace) is given in Table 2 below.4 Thistable makes it very easy to examineindividual countries since all scores

appear with the respective country.

Notice that Brazil is the only countryto score A for every component.As most countries have scores thatvary across the four components,how does one assess the overallperformance of a particular country?One method could be to use theGrade Point Average (GPA) systemcommonly used to measure students’academic performance. Each leerscore is associated with a numericalone: A=4; B=3; C=2; D=1; and F=0.The average score across the set ofscores is calculated for each country,which gives a measure of the averageperformance of the country. Country-specic GPAs are given in the farright-hand column of Table 2.

If the information in Table 2 isrearranged not alphabetically butrather in descending order byGPAs, the analyst can then selectan appropriate cut-o GPA and seehow many countries score above thatpoint. This number, or the proportionof countries scoring above the cut-o point, can serve as indicatorsof the overall performance of thegroup. An alternative approach isto compute the average GPA forthe group and this becomes theindicator of the overall performance.

There is another factor that could betaken into consideration, however,in grading countries’ performance.In a 2007 Introductory Note to the

1951 Convention, UNHCR statesthat the principle of non-refoulement is considered to be sucientlyfundamental that no deviationis acceptable. If this condition isinvoked in the grade assessmentprocess then any country thatscores a C, D or F on the questionof refoulement receives a failinggrade overall. This means that wecan start with the non-refoulement component, and consider only thosecountries scoring an A or a B. As can be seen from Table 1, only 17 of the52 countries survive this rst test.For these 17 countries, GPAs can becomputed using all four components,and these GPAs are their grades.(The average grade for the 17acceptable countries is 2.77.) The rest

of the countries– approximatelytwo thirds –receive failinggrades, havingdeviatedfrom the non-refoulement requirement.

The resultspresented herecould not begleaned bymerely looking at the four tablesin USCRI’s report. Those tablesprovide the raw data. The GPA isa vehicle for extracting additionalpenetrating information and analysis

of the refugee rights complianceof individual countries and of theset of host countries together.

Bruce A Forster ([email protected])

was Professor of Economics and

Dean of Business at the University of

Wyoming, Arizona State University’s

West campus, and the University

of Nebraska at Kearney from 1991

to 2009, and is now Professor

emeritus at UNK and ASU.

1. 2009 World Refugee Survey hp://tinyurl.com/2009-WorldRefugeeSurvey

2. The protection of refugees from being returned toplaces where their lives or freedoms may be threatened

3. Consisting of the West Bank, the Gaza Strip and muchof the Golan Heights.

4. The full set of data, arranged alphabetically by countryand ranked by performance, is available on the FMRwebsite athp://www.fmreview.org/non-state/forster.htm

Country(in alphabeticalorder)

Refoulement /Physicalprotection

Detention/Access tocourts

Freedom ofmovement andresidence

Right to earna livelihood

Grade PointAverage

1. Algeria C D F F 0.75

2. Bangladesh C D D C 1.5

3. Botswana A B C B 3.0

4. Brazil A A A A 4.0

..........

25. Jordan C D A D 2.0

26. Kenya F D F D 0.5

27. Kuwait B A B D 2.75

..........

50. Venezuela C C C B 2.25

51. Yemen F D C C 1.25

52. Zambia C B D D 1.75

Source: Author’s creation based on USCRI, World Refugee Survey 2009

Table 2: Measures of host country compliance with refugee rights

T . . C i I i i i .

i i i i

i

L

E F U G E E

U

V E Y 2

U . . C

I T T E E F

E F U G E E

I

I G

T

i i i li l i

i ll i li i

l i

li l i

i l i li l i

i i l i i

i i ii l

i i i

i i i i i i

i i

li i i

l il

l li

l i i il

i

l i i l

l i

i ii i i

i li

i l i

i l il

i l i i l li

i li

lll

ii

li i

l ii i



59

F M R 3 7

Diana AvilaDiálogo Sudamericano

Paula BanerjeeMahanirban Calcutta

Research GroupNina M BirkelandNRC/IDMC

Mark CuttsOCHA

Eva EspinarUniversity of Alicante

Rachel HastieOxfam GB

Lucy KiamaRefugee Consortium of Kenya

Khalid KoserGeneva Centre for

Security Policy

Amelia Kyazze

Save the Children UKErin MooneyIndependent consultant

Dan SeymourUNICEF

Vicky TennantUNHCR

Richard WilliamsIndependent consultant

Roger ZetterRefugee Studies Centre

FMR International Advisory BoardBoard members serve in an individual capacity and do not necessarily represent their institutions.

Australian Government Department

of Immigration and Citizenship

• Brookings-Bern Project on

Internal Displacement • Catholic

Relief Services • CBM • CIDA• Commonwealth Foundation

• Concern Worldwide • Danish

Refugee Council • DFAIT Canada •

DHL • European Union • Feinstein

International Centre, Tufts University •

Generalitat Valenciana/Consellería de

Educación • Handicap International

• INEE • International Alert •

International Rescue Committee •

Norwegian Ministry of Foreign Affairs• Norwegian Refugee Council/

Internal Displacement Monitoring

Centre • Open Society Initiative

for Southern Africa • Open Society

Justice Initiative • Oxfam GB • RAISE

Initiative • Refugees International

• Sightsavers • Spanish Ministry

for Science and Innovation • Swiss

Federal Department of Foreign Affairs

• UK Department for InternationalDevelopment (DFID) • UNAIDS • UNDP

• UNFPA • UN-HABITAT • UNHCR •

US Department of State, Bureau of

Population, Refugees, and Migration

• Women’s Refugee Commission

New research project: Stateless diasporas in the EUPart of the Oxford Diasporas Programme funded by the Leverhulme

Trust, this two-year project – starting in May 2011 – will explore

the extent to which members of three ‘stateless diasporas’

(Kurds, Palestinians and Roma) construct, negotiate and mobilise

notions of shared belonging in the EU. The research team, led

by Nando Sigona and Elena Fiddian-Qasmiyeh at the Refugee

Studies Centre, will conduct a comparative investigation of the

ways in which specic migration and citizenship regimes have

an impact on stateless migrant communities resident in the

EU. Recognising the variety of legal statuses held by individuals

of these backgrounds, the research will explore the intersection

of policy regimes and migrants’ settlement experiences and

strategies, transnational engagement and diverse modes of

mobilisation. More broadly, the research project will discuss how

‘land’ and ‘state’ (and their absence) are currently conceptualised,

and why this may lead to a problematisation of the categories of,

and policy responses to, de facto and de jure statelessness.

For more information, please visit the RSC website at http://www.rsc.

ox.ac.uk The Diasporas Programme will also shortly have a dedicated

webpage at http://www.migration.ox.ac.uk/research.shtml Or email

[email protected] or [email protected]

New Policy Briengs now onlineNo 6: Responding to protracted refugee situations –

lessons from a decade of discussion

Dr James Milner, Assistant Professor at Carleton University in Canada,

and Prof Gil Loescher, Visiting Professor at the RSC, analyse the

impact of protracted displacement on the human rights and access

to livelihoods of millions of people and examine how protracted

displacement situations accentuate the risk of chronic regional

insecurity, fragility and conict spillover. Through tracing the history of

international responses to protracted refugee situations (PRS), they

examine the complexity of the negotiations process that led to the

adoption of the 2009 UNHCR Executive Committee Conclusion on

PRS while suggesting steps that will be required from a broad range

of actors if there is to be an adequate response to PRS in the future.

Thank you to all our donors in 2010-2011FMR is wholly dependent on external funding to cover all of the project’s costs, including stafng. We are deeply

appreciative to all of the following donors both for their nancial support and their enthusiastic collaboration.

No 7: Sahrawi refugees’ protracted displacement –

challenges and opportunities beyond encampment?

Dr Elena Fiddian-Qasmiyeh, Departmental Lecturer in

Forced Migration at the RSC, analyses the challenges and

opportunities – after 35 years of protracted displacement

and encampment – for the Sahrawi refugees, their

political representatives and international actors (including

humanitarian agencies, state actors and non-state

actors). She challenges assumptions and representations

of conditions and dynamics in the camps. Dr Fiddian-

Qasmiyeh also calls for a careful analysis of the diverse

alternative solutions to encampment in Algeria which

have been adopted or proposed by Sahrawi refugee

families and their political representatives and for the

development of accountability mechanisms to monitor the

implementation of relevant programmes and projects.

Both Policy Brieng papers are online at http://www.rsc.ox.ac.

uk/pub_policy.html. Series editor Héloïse Ruaudel (rscpolicy@

qeh.ox.ac.uk) would welcome your feedback on the series.

Re-launch of the RSC websiteThe RSC is launching an updated version of its website on

16 March. The site offers clearer access to the RSC’s latest

news, publications, events and activities. The research

section is organised around a collection of newly developed

themes with improved links to related conferences, workshops

and staff presentations and publications. The site also

includes a sign-up sheet for those interested in receiving

email updates and event invitations. Please take a few

minutes to explore the site at http://www.rsc.ox.ac.uk

2011 International Summer School in Forced Migration11-29 July 2011

The Refugee Studies Centre’s acclaimed International Summer

School fosters dialogue between academics, practitioners and

policymakers working to improve the situation of refugees and

other forced migrants. Deadline for applications: 1 May 2011.

Full details at http://www.rsc.ox.ac.uk/teaching_summer.html



Facing facts

We know that real people’s faces are important to bring to life the words – facts, thoughts,ideas and feelings – that are in Forced Migration Review (FMR). We have always sought

out images that show the personal reality of forced migration, tracking and statelessness.

You will notice, however, that in this issue we have taken steps so that the people shown inthe photos generally cannot be recognised, and we want to explain our reasoning.

We know that many, if not all, of the photographers and agencies who generously providephotos for FMR’s use seek permission from those being photographed. However, we have

begun to question our assumption that it is therefore always appropriate for us to use thesephotos in FMR.

FMR is distributed around the world in print and is freely accessible online on our website;however, it is also made available on other websites and in public libraries and on CD-ROMs.In reality, we ourselves have no way to be sure that the people in the photographs could have

given truly informed consent for their image to be used by us. Would they have understoodthat their image might be seen by people all around the world, and that it would live on inthe virtual world for potentially many, many years?

We think that there are cases where individuals would not wish their image to be used insuch a way that they might be identiable for ever in a situation that is, in all likelihood, atemporary one that catches them at a low point in their lives. We cannot be sure either thatshowing their image will not – at some time and in some way that could not be foreseen –damage them or undermine their dignity. We therefore need to act with caution.

We have decided that weshould whenever possibleprotect the identity ofpeople shown in FMR– unless it is obviousthat this precaution isunnecessary – by avoidingclose-up images of facesand/or, where necessary,pixellating faces.

We realise that there isno perfect, correct way

to do this. The people inthe photos may feel thatthis robs them of their fullidentity; they may feelthat we are playing intothe hands of those whowould typecast refugeesas second-class citizens or as ‘undesirables’ It may also lessen the impact of the words

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2011 - Talking to Armed Groups (FMR)

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Transcript of 2011 - Talking to Armed Groups (FMR)