conor_foley

There are lots of good arguments against the current military intervention in Libya and Michael Walzer sets some of them out in Dissent.

Arguments against ‘humanitarian intervention’ can usually be grouped under three headings: the pragmatic – what is our endgame; the pacific – people will be killed; and the ideological objections – which come from the right and left. Both of the latter have merits, although they self-evidently cannot both be true. They can be roughly summarized as ‘Why should western troops be asked to die for a cause that does not affect our ‘national interests’ and can we believe western governments when they say that they are in fact acting for altruistic motives?’

I find the latter of the three arguments the least interesting because they inevitably descend into a search for the hidden ‘real reasons’ for military interventions. While there is a place for such discussion, I think that the first two are more immediately compelling and would suggest that the case for or against a ‘humanitarian intervention’ rests on answering two broad questions: has the level of violence reached such a threshold that the use of counter-force is morally justifiable and is it a practical, strategic option that will actually make things better for the people concerned?

In the early 1990s I visited the Kurdish ‘safe haven’ in northern Iraq, shortly after it had been established at the end of the first Gulf War. This was the prototype for the subsequent ‘humanitarian interventions’ that have taken place over the last few decades and there is no doubt in my mind that it saved tens of thousands of lives. The arguments against its establishment were every bit as compelling as those that I have heard against the current actions in Libya, but the alternative was a probable genocide. A journalist that I was travelling with at the time said that he had seen bodies swinging from the lampposts of every town that the Republican Guard recaptured from the Kurds.

During the Kosovo conflict of 1999 I was asked to run some training sessions on international human rights and humanitarian law, first in refugee camps in Albania and Macedonia, and then in Kosovo itself as the war came to an end. The stories that I heard were harrowing, but, perhaps because I spent longer working there (I was subsequently seconded to UNHCR for a year), I came away with a more nuanced view of the conflict and think that, on balance, NATO’s bombing campaign did more harm than good. This may also turn out to be the case in Libya.

Two years ago I was working in Sri Lanka when the army finally stormed the last stronghold of the LTTE. Hundreds of thousands of civilians were blockaded into an area the size of New York Central Park, where at least 20,000 were killed over a three month period. The area was shelled incessantly and hospitals and food-distribution points appear to have been deliberately targeted. Many more died from starvation and disease because the government blocked humanitarian access. Others were summarily executed during the final assault. When a staff member for the agency that I was working for was killed, the Ministry of Defence released a false statement saying that he was a terrorist.

There was never even the remotest prospect of a ‘humanitarian intervention’ in Sri Lanka and I only include it in the discussion to show that the option of doing nothing also has moral consequences. On balance I am in favour of the current intervention in Libya. As I said in my previous post, I think that the UN resolution authorizing it puts the protection of civilians at the centre of its mandate and sends a clear signal to governments of the world that they cannot massacre their own people with impunity.

I do not know what the end game is. I accept that the campaign will result in people being killed by allied airstrikes and I presume that the intervening governments have selfish as well as altruistic motives for their actions. However, I think that the situation in Libya immediately prior to the intervention passed the threshold test that I set out above. I think that the UN is fulfilling its responsibility to protect the lives of civilians in this case.

Like Chris, I don’t have a vote at the United Nations and I have also found the bloodthirsty enthusiasm with which certain sections of the blogosphere have turned the conflict in Libya into a spectator sport rather nauseating. However, I do have a couple of thoughts about the resolution authorizing intervention.

Paragraph 4 of resolution 1973 is headed protection of Civilians and states that

bq. ‘Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General‘ are authorized ‘to take all necessary measures , . . . . . to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory.‘

This is the legal basis of the military action that allied forces are taking. The wording is significantly different to the standard clause that has been appearing in UN Resolutions since the 1999 mission to Sierra Leone, which, under the heading of Protection of United Nations’ Staff, Facilities and Civilians, tends to read along the following lines.

bq. ‘to protect United Nations personnel, facilities, installations and equipment, ensure the security and freedom of movement of its personnel and, without prejudice to the efforts of the government, to protect civilians under imminent threat of physical violence, within their capabilities.‘

The ‘protection of civilians’ has become an increasingly central concern of UN peace-keeping missions over the last decade and this has resulted in the above wording appearing in most Security Council Resolutions authorizing peacekeeping or stabilization mandates. The caution of the language is obvious – UN personnel are mentioned first and civilians second, and the protection is to be achieved ‘within the capabilities of the UN military contingent and ‘without prejudice’ to the host government. However, the resolutions are adopted under Chapter VII of the UN Charter, which authorizes the use of force.

This explicit authorization to use force to protect the lives of civilians arose directly out of the experiences of the humanitarian interventions of the 1990s. The establishment of the Kurdish safe haven at the end of the first Gulf War in April 1991 is widely considered as the first of these interventions, but the resolution supporting it (688) was not adopted under Chapter VII of the UN Charter. Subsequent missions, such as those in Somalia, Rwanda and Bosnia-Herzegovina, were defined as ‘threats to peace and security,’ rather than threats to civilian lives, a quite different conceptual concept when it comes to mission planning.

NATO’s actions over Kosovo in 1999 also lacked UN approval and was defended legally under the controversial doctrine of ‘humanitarian exception’ to the international prohibition on the use of force.

The aftermath of the Kosovo conflict saw a flurry of reports and commissions on the question of the legality of humanitarian interventions and the drawing up of a set of principles on the Responsibility to Protect (R2P) which received semi-endorsement at the UN millennium summit. The invasion of Iraq effectively killed off R2P, but work around the protection of civilians has continued under UN auspices and protection strategies are being increasingly integrated into the planning of most UN missions. This debate has probably had far more influence on the Security Council’s recent decision than any ‘western plot to invade another country in the Middle East.

The intervention over Libya undoubtedly opens a new chapter on this debate and, at the time of writing, none of us have any idea what its eventual outcome will be. However, Resolution 1973 is in its own terms a significant milestone in the evolution of the UN and the debate about the legality of the use of force for humanitarian ends.

We had a new addition to the family at the weekend, which is going to make it quite difficult for me to post anything more in the near future.

Daniel Foley arrived at 5.15 am on Saturday 29 August. He weighs just over 3 kg and is about 51 cm. Despite his size, the birth was quick and completely natural. Daniel slept through the first night from 9.30 pm – 5 am and then gurgled a bit to tell us he wanted to be fed. He is huge, healthy, has blue eyes and seems very peaceful. He is already breaking many Brazilian and Irish hearts.

Thanks for having me here. Crooked Timber encapsulates the best traditions of blogging and debate. I have discovered to my cost that there are some truly dire political websites out there and there is something profoundly depressing about watching those who want to cram all of the world’s complexities into a single, simplistic ideological viewpoint. I hope my son will grow up to understand the values of liberal diversity, listening to other viewpoints, critical inquiry, human compassion and honesty. I hope that his world will also be more peaceful than the one that we have lived through in recent years.

A Daniel come to judgment! yea, a Daniel!
O wise young judge, how I do honour thee!

I spoke at a seminar on UN peace-keeping a couple of weeks ago. Here is the text of my paper:

I lived in Afghanistan for a year and a half in 2003/2004 and returned there twice in 2008: the first time to do some research for the Overseas Development Institute on how humanitarian agencies were dealing with the deteriorating security situation and the second time for an evaluation of the Italian government’s justice sector reforms. I have written a Guide to Afghan Property Law and a chapter on Afghanistan in a book on UN peace-keeping missions, with particular reference to the restoration of housing, land and property rights. My own book on humanitarian interventions also has a chapter on Afghanistan.

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I am reading two great books about Brazil at the moment. Teresa Caldeira’s City of walls: crime segregation and citizenship and Sarah Hautzinger’s Violence in the city of women: police and batterers in Bahia, Brazil.

The latter book tells the story of Brazil’s all-women police stations. Hautzinger spent some time living in a favela to research it and she remembers in her encounters with foreign journalists:

It became clear that they had hoped I would regale them with bloodcurdling brutalizing horrors, confirming their expectations of the exotic barbarity of Latin American men and the overall gravity of gender-based violence in Brazil that could necessitate all-female police stations. . . . This work approaches violence’s significance for gendered power relations as being far more complex than has been commonly recognized and advocates distinguishing between contrasting dynamics of violence as well as how they fit into global, national and regional historical processes. . . . Preventing violence requires more than punishment. . . . . Moreover criminalization-centered responses are inadvertently elitist, benefiting white and middle class women at the expense of poor and working class women and women of color who are more reluctant to involve police because of perceived bias.

Caldeira’s book is more difficult to summarize, but is basically about the impact that the rise in violent crime has had on Brazilian society as a whole. The following quote gives some idea of her approach:

The talk of crime promotes a symbolic reorganization of a world disrupted both by the increase in crime and by a series of processes that have profoundly affected Brazilian society in the last few decades. These processes include political democratization and persistent high inflation, economic recession, and the exhaustion of a model of development based on nationalism, import substitution, protectionism and state-sponsored economic development. Crime offers the imagery with which to express feelings of loss and social decay generated by these other processes and to legitimate the reaction adopted by many residents: private security to ensure isolation, enclosure and distancing from those considered dangerous
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John Holmes the UN Coordinator for Humanitarian Affairs has a nice tribute to the UN workers who died in the Baghdad Bombing of 19 August 2003, six years ago today. he notes that ‘On this day in 2003, the UN offices in Baghdad were blown up by a truck bomb, killing 22 humanitarian workers and dedicated professionals, among them Sergio Vieira de Mello, a lifelong humanitarian who had saved lives and reduced suffering in some of this planet’s toughest places.

In remembrance of this tragedy, today is the first World Humanitarian Day, an opportunity to reflect on the remarkable achievement that when crisis strikes today, it is taken for granted that aid workers will be on the scene within hours.‘

I had turned down a job with the UN mission in Iraq to go to Afghanistan a few months beforehand, and several of my former colleagues from Kosovo were among the dead and injured that day. Since then I have lost count of the number of friends and colleagues who have been killed, maimed, kidnapped or emotionally traumatised in the course of their work.

Holmes notes that: ‘The number of conflicts around the world has shrunk over the past 20 years but the humanitarian fallout of conflict remains appallingly high. The kind of internal conflict we see so often is particularly ruinous for civilian lives and livelihoods.

Long-running conflicts in Darfur, the Democratic Republic of Congo, the occupied Palestinian territory and Somalia continue to affect millions. The humanitarian operation in Darfur – the largest in the world and now in its fifth year – struggles to provide assistance to 4.75 million civilians.‘

Given the news of another massive attack in Baghdad today and the continuing rising death toll in Afghanistan, it might seem wrong to single out aid workers for special mention, since we do after all volunteer to go to such places. However, I think that there is a debate to be had about the changing nature of aid work, how it is become politicised and what could be done to make it more effective according to our core humanitarian principles of independence, impartiality and neutrality.

Amnesty has just published a good report and action. It calls ‘for the immediate release of 285,000 innocent civilians – including an estimated 50,000 children – being held in cramped and squalid camps in the north of Sri Lanka.’ 

Here are a couple of photos taken from about six months ago of the camps as they were being built:

 

And here are two from about the same day of the ‘no-fire zone’ a few miles away:

And here is a picture which I think shows the refugees leaving the war zone and being escorted to the camps.

You can see in the first photo the emblems of a humanitarian agency.  The second photo shows the barbed wire surrounding each camp.  These were, and are, effectively concentration camps (in the original meaning of the word), and so the dilemma was whether humanitarian agencies should have helped to build and administer them? 

The next two photos show the conditions that the people who are now in the camps were previously suffering.  Thousands died either from direct shelling, or starvation and disease, in the space of a few months.  Should the aid agencies have done more to publicise what was happening or spoken out louder for a ceasefire – even if it meant getting thrown out of the country or arrested? 

Finally, should the agencies have allowed themselves to be used in part of a counter-insurgency campaign by the Government of Sri Lanka in which over a quarter of a million people have been forcibly displaced from their homes – which is a prime facie violation of the laws of armed conflict?

The other relevant bits of law here are the provisions in the Geneva Conventions which permit humanitarian agencies to ‘offer their services’ to state parties but also require them to remain strictly neutral during conflicts (Despite what is sometimes asserted there is no legal ‘right to humanitarian assistance’ and nor are governments ‘obliged to allow’ access to civilians by humanitarian agencies during non-international conflicts) and the humanitarian imperative, which says that the alleviation of human suffering comes before other considerations.

Governments may suspend certain rights during public emergencies – such as liberty and freedom of movement – but are constrained both in what they can do to captured combatants, and other prisoners, and how they treat civilians under their control.  Governments may on no account torture people or carry out summary executions, starvation is prohibited as a weapon of war and military forces must attempt to distinguish between military and civilian targets, are prohibited from attacking purely civilian targets and must subject all attacks on military targets which may result in civilian casualties to a principle of proportionality.  People charged with criminal offenses have a right to a fair trial.  The International Committee of the Red Cross has a recognized role in ensuring that these provisions are upheld in practice and so the denial of access to screening facilities or detention centres are issues of legitimate concern from a humanitarian or human rights perspective.

So what would you have done if you had been working for an aid agency in northern Sri Lanka over the past six months?

Oxfam has managed to get a law on domestic violence enacted in Malawi, according to Duncan Green, its Head of Research.

I like Duncan. He has written some excellent stuff on Latin America and his wife is a former colleague of mine. I agree with him that violence against women is a bad thing and I will take his word for it that it is a serious problem in Malawi. However, I cannot help wondering about his statement that this type of ‘advocacy at national level . . is becoming an increasingly important part of Oxfam’s work.’ What exactly gives Oxfam a mandate to campaign to change the laws of the countries that it is working in and what expertise does it have in the area of criminal justice reform?

Oxfam’s focus in Malawi is on sustainable livelihoods, HIV and AIDS, health, and humanitarian aid and there is no mention of the law on the country page of its website. I did find a report entitled Popularising the Africa Women’s Protocol which details some awareness-raising activities and briefly mentions the new law, but there is no analysis of what its impact has been. Has it led to more prosecutions and, if so, what has happened at the trials? Have more people been imprisoned for committing these crimes and what impact has this had in discouraging further offences? What have been the financial costs of implementing the new law and how effective has it been in tackling the problems that it is supposed to address? Malawi is a poor country and aid organisations need to think through the costs of foisting potentially expensive new legislation on it.

I have also just read an Amnesty International report about violence against women in Brazil. I used to work for Amnesty and I hold the organization in great respect. I live in Brazil and am currently working on an Access to Justice project here. My wife is a Brazilian judge and hears dozens of cases related to domestic violence every week. I am a Brazilian tax payer and we are expecting a new baby shortly, who will be born a Brazilian citizen. In other words, I feel that I have a stake in my adopted country’s future.

We have recently enacted a new law on violence against women, which the Amnesty report praises. Amongst other things, this imposes tougher prison sentences on offenders, provides for preventative pre-trial detention and enables prosecutions, without the consent of the victim, even where the violence has been of a very minor nature.

While there is broad support for the new law, these provisions have caused controversy. Conditions in Brazil’s notoriously overcrowded prisons are appalling and most of them are effectively run by crime gangs. The majority of defendants that come before my wife are poor and unemployed; many are alcoholics or drug addicts, or have mental health problems. Lack of appropriate social services means she can rarely refer them anywhere and the new law is likely to lead to a dramatic increase in the number sent to prison. There is at least a debate to be had about whether this is the best way of tackling the problem.

Yet the Amnesty report does not mention any of these issues – which seems strange for a body set up to help get people out of prison rather than put them in. Instead it talks a lot about the social context of the violence, which affects black and poor Brazilians disproportionately. It also has a chapter about the poor quality of Brazil’s public health care and education systems.

While these points are undoubtedly true, I found myself wondering what Amnesty intended to do about them. Oxfam has obvious expertise here, since it implements education and health projects in the poorest countries of the world. Amnesty has traditionally been strong on criminal justice reform. Yet, rather than stick to what they are good at, both seem to want to converge on one another’s territory – the fuzzily-defined concept of a ‘rights-based approach to development.’

I don’t have a problem with the theoretical underpinnings of this, but what does it actually means in practice? We can all agree that people living in poverty have their human rights violated on a daily basis. The difficulty is not so much identifying the violator, but coming up with an effective remedy.

Some suggest new international treaties, others that putting social and economic rights into constitutions means that they can be tested in law. But there is virtually no empirical evidence that either approach has helped to reduce poverty in developing countries. In fact it is more likely to skew a country’s social spending because it is only the rich who are able to afford to pursue cases through rights-based litigation.

To take just one example, Brazil spends 12 per cent of its Gross Domestic Product on pensions compared to about 3 per cent on health and less than 5 per cent on education. Around 40 per cent of this sum is spent on people aged 40 – 60 and roughly 40 per cent goes to only three million former public employees. The richest fifth of Brazil’s population receive 61 per cent of pension spending; a Scandinavian level of welfare for the already extremely wealthy. Meanwhile people working in the informal economy – roughly 40 per cent of the workforce – get no benefits whatsoever.

On current deomgraphic and economic trends pension spending could bankrupt Brazil in a few decades. President Lula’s attempt to reform the system in his first term of office was met with a vigorous campaign of resistance from the Brazilian judiciary – who are amongst its chief beneficiaries. Brazil entrenched a plethora of rights and privileges in its 1988 constitution, which led to a big jump in state spending on social programmes, but had virtually no impact on reducing poverty. It is no coincidence that it is both one of the most unequal and most litigious countries in the world. These constitutional provisions also overburdened the Brazilian judiciary, which has led to lengthy delays in the conduct of trials. Amnesty reports have often rightly slammed the length of time that people spend in pre-trial detention, prison conditions and fair trial concerns, yet it seems oblivious to the link between the two issues.

Governments throughout the world have to make choices between taxation and public spending, which will always involve prioritisation and trade-offs. Enacting new legislation costs money and money spent on a prison can obviously not be spent on a school or hospital. The danger of the rights-based discourse is that removes subjects of legitimate debate from the political institutions and entrusts them to the judiciary. When applied to the international development industry it dis-empowers national parliaments and weakens democratic accountability. I would be interested in hearing other people’s views on this topic.

a) 16: b) 35,000: c) 400,000: d) 7.5 million: e) 0

The first figure is the number of fatalities in Darfur for the month of June of this year – the most recent date for which they are available – and is taken from Alex de Waal’s widely-respected Making Sense of Darfur blog.   This notes that 12 of the deaths were ‘probably criminal in nature’ while the remaining four were related to the ongoing political crisis.  This is the lowest monthly total since the start of the crisis and brings the total number of violent deaths in the Darfur region to perhaps 600 so far this year.  For the first nine months of last year, it is estimated that there were around 1,211 deaths of whom around 496 were civilians.

This is way down on the death toll at the height of the conflict in 2003/2004 when the International Criminal Court estimates that around 35,000 people were killed during the government’s counter-insurgency campaign, which is where the second figure comes from.

The third figure is the number of ‘innocent men, women and children [who] have been killed’ in Darfur according to a series of high-profile advertisements and press statements run by the Save Darfur Coalition in 2005 and 2006. This exaggerates the number of violent deaths in Darfur by more than ten-fold.  The adverts were criticised by the Advertising Standards Association and the coalition now use the figure 300,000 instead.  This is a UN guesstimate at the total number of people who have died both from the direct and indirect effects of the conflict.  It is based on the figure used by the main aid agencies during fund-raising appeals in 2005 – when they said that 200,000 lives had been lost – and a comment by a UN official that this figure could now be half as high again.  From my extremely limited experience of counting displaced people and/or dead bodies during refugee crises, I would say that the 200,000 figure was about right when the agencies were using it.  This was half the number claimed by the coalition at the time and the wording of their adverts – which implied the deaths were a result of physical acts of violence was clearly misleading.
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