By Jonas Ecke

August 15, 2019 "Information Clearing House" -   The last century has seen the emergence of several humanitarian norms and laws that were arduous, even frustrating, to implement and often ignored by governments, but which were the result of important lessons learned from the destruction that the world wars brought to civilian populations.

Historical attempts to limit organized brutality had existed before the world wars, as the Peace of Westphalia of 1648 – which brought the system of modern states into existence – epitomizes. Though these efforts should not be trivialized, the world wars catalyzed efforts to devise legal mechanisms to protect civilians and combatants on a global scale. For example, the “Geneva Convention relative to the Treatment of Prisoners of War” were signed in Geneva in 1929, a bit more than a decade after World War I. The term Geneva Conventions usually refers to an agreement four years after the conclusion of World War II, which not only updated the terms in regards to prisoners of war of the previous Geneva conventions, but also stipulates the humane treatment of the wounded and sick, as well as civilians in and around warzones. As brutal as the wars since the Second World War continued to be – humanitarians were now handed some legal mechanism that obligated states to prevent combatants from indiscriminately attacking civilians or abusing prisoners of war.

International treaties also sought to protect those displaced by war: The 1951 Convention Relating to the Status of Refugees put into existence a previously-lacking legal framework and even a whole agency, the UNHCR (United Nations High Commissioner for Refugees), with the sole aim of serving displaced people. Before the United Nation member states could all formulate a “duty to rescue at sea” – which is binding in peace and wartime – in the second half of the 20th century, no legal obligation to rescue drowning people on the high sea existed.

Unfortunately, we have entered a time in which all these fragile accomplishments have become imperiled: As Alexander de Waal of the Fletcher School of Government – one of the most renowned scholars on the topic of humanitarian emergencies – argues, we are living in times that are shaped by “counter-humanitarianism ideologies”. These are not principled criticisms of humanitarian overreach, informed by a fear that overambitious humanitarian actions may undermine the very principles it tries to protect. Rather these emerging “counter-humanitarianism ideologies” constitute an outright rejection of humanitarian values and the institutions enabled by these values.

There are several reasons behind why we have entered this brave new world: One is that retrograde xenophobic political movements have swept the polls in western countries, which have grown more economically unequal and polarized on issues such as race and migration. For whatever precise reasons, the supporters of LePen of France, Orbán of Hungary, and Donald Trump in the US sneer at humanitarian norms. Even centrist governments may clamp down on humanitarian norms in an attempt to take away voters from rightwing parties.

Our era of unending wars – which are, in the words of De Waal, fought “with diminishing respect for humanitarian norms by militant insurgents, regional powers and western counter-terrorists” – are also inimical to upholding humanitarian norms. As the militarization of much of US foreign aid exemplifies, the US-led War on Terror was often a direct assault on the principles of humanitarian neutrality.

Another global trend – which is often cited as contributing to human rights playing a lesser role in global politics – is what analysts call the “decline of the liberal order”, which is a system of agreed-upon international rules embodied by the United Nations. It is a system that was upheld by US power and finds itself eroded as non-western countries such as China and Russia emerge as powerful global players. The argument goes that now a transactional foreign policy that is less based on humanitarian norms but self-interested costs-and-benefits calculations inform policies This line of reasoning is problematic if one seriously takes into account that in many cases western countries lived up to humanitarian norms in principle, but not in practice; as their unending wars, support for autocrats and weapon exports epitomize.

Whatever the precise reasons, “counter-humanitarianism ideologies” have already deeply affected the way western countries deal with migrants, wage war and deliver humanitarian assistance. Perhaps counter-humanitarianism emerges as the new overarching organizing policy-principles, at least in these fields. However hypocritical governments used to be when they claimed compliance with humanitarian norms, they used to honor a few rules in regards to migration, war and development.

The counter-humanitarian assault on migrants

One only needs to observe the heart-wrenching images of migrants drowning on the high sea in the Mediterranean and the family separations at the US border to understand the extent of today’s “counter-humanitarianism.” Migrants have died while they were trying to reach Europe for more than twenty years. In 2018 on World Refugee Day, the Guardian published a list of all migrant deaths since 1993, compiled by the NGO United for Intercultural Action (UNITED): the number stood at 34,361. The deaths occurred not only through drowning at sea, but also, for example, through suicide in detention centers and shootings by border-guards and police officers.

Despite this long history of migrants dying as they attempt to enter Europe, the treatment of migrants has deteriorated in the last years. For one, there is the criminalization of attempts to rescue migrants on the high sea. For example, Italy is charging two German humanitarians and boat captains, Carola Rackete and Pia Klemp, who has personally assisted in saving 1,000 lives, with aiding illegal migration because of their rescue missions in the Mediterranean.

These latest proceedings follow the trend of recent years: Italy has banned aid organizations from operating recue vessels within its territorial waters, while Malta denies vessels with refugees on board entry into its harbors. By design, such moves have made the rescue of distressed migrants very difficult, if not impossible.

As the NGO Human Rights Watch quite succinctly put it, “Europe is losing its moral compass in the Mediterranean.” But these failures of Italy and Malta, in which all of Europe is complicit, are not only moral, but also legal violations. As Irini Papanicolopulu, associate professor of international law at the University of Milano, affirms in the International Review of the Red Cross, “There is no doubt that the duty to rescue is one of the best-established principles of the international law of the sea, maritime law and international humanitarian law.” The “duty to rescue” at sea became part of international treaty law after World War II, but belong to the oldest customary laws, internalized by sailors throughout the world’s waterways.

Italy also collaborates with Libya to “pull back” migrants. The country works with Libya’s coastguard – which, in a country torn apart by a complicated proxy war, which is fought by regional powers and enabled by French and Italian geostrategies – includes militia members. Migrants are routinely brought back to Libya, where they endure violations such as beatings, rape and starvation. On July 3rd an air strike reportedly killed 53 migrants, including six children, in a migrant detention center in Libya.

Meanwhile in the US thousands of migrant children and adolescents have been separated from their parents and held in detention centers. In a detention center in Clint, Texas children were described as being cold and hungry as they were detained in cages, lacking access to showers, clean clothes and places to sleep. There are similarities between US and EU policies: The US is following the European lead to criminalize those who aid migrants and both are working towards preventing migrants from seeking asylum, which is a right that is defined in the 1951 UN Refugee Convention.

The situation in the US even led to a discussion on whether comparisons with “concentration camps” – which is a terminology that describes a specific kind of institution that has been used at multiple times in history – are legitimate. Wherever one stands on the legitimacy of this comparison, the debate it provoked is necessary, though many would have surely hoped that the term “concentration camp“ would be an anachronism in the 21st century.

Dismantling the Rules of Engagement

Though “humane wars” do not exist, some rules for how wars are fought emerged from the blood-soaked 20th century. Many of them have since been dismantled. The 2017 battle for Raqqa – a city in the North of Syria – in which the US and Syrian Democratic Forces dispelled fighters of the self-proclaimed Islamic State, is a case-in-point for this trend.

One obvious crisis of humanitarian norms is the rise of ISIS, a parastate group that established a “quasi-state” that has taken vast swaths of territory in the northwest of Iraq and eastern part of Syria. International humanitarian norms are mostly irrelevant in the governance and military operations of parastate groups, and ISIS is one of the most brutal of such groups: its rule included public executions by beheading and crucifixions, lashings and the abuse of women as a form of terror. The United Nations Commission on Human Rights has documented that ISIS “seeks to subjugate civilians under its control and dominate every aspect of their lives through terror, indoctrination, and the provision of services to those who obey”.

Not only parastate groups, but also states violate humanitarian norms. After all, we live in in times in which Assad drops barrel bombs on his own population, the Saudi-led coalition (equipped with US intelligence and German munition) relentlessly bombs Yemen – the poorest country in the Middle East – and South Sudan cannot overcome its ethnically-motivated violence.

Against the backdrop of such global developments, an erosion of “rules of engagement” seemed to have been detected in immediate US combat operations: The bombardment of Raqqa, carried out by the US along with France and the UK, directly killed more than 1,600 civilians, according to Amnesty International and the monitoring-group Airwars. Their investigation reveals how residents were caught between inaccurate bombardments and tens of thousands indiscriminate artillery-strikes on the one hand, and ISIS snipers and mines on the other hand.

As civilian casualty numbers climbed, the Trump administration relaxed several “rules of engagement”. For example, more junior officers were allowed to call in airstrikes without having their requests reviewed by senior officers during the battle for Raqqa. U.S. forces are no longer bound by the “proximity rule”, a requirement that US forces needed to be in contact, or in proximity, with opposing combatants in Afghanistan before opening fire from the air.

It is important to note that not all humanitarian norms are part of international law. Rules of engagement should integrate, or at least not violate, the legal principles of the Geneva conventions, which can be interpreted in different ways. The “proximity rule” is not stipulated in the Geneva Conventions, but relates to the principle of “constant care,” according to which “feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.”

The International Committee of the Red Cross recognizes this “constant care” principle as part of customary international law. As such, the Red Cross would expect states to adhere to these principles as a matter of custom, though they are even harder to enforce than provisions spelled out in international law. As Cornell University political scientist Matthew Evangelista put it, if the “US ‘proximity rule’ were actually part of international law or even taken seriously by the Pentagon, its strict application would seem to restrict use of long-range bombing altogether, whereas we have seen its vast increase during the Obama years and again in the early Trump administration.”

Civilian deaths by US military action in Syria and Iraq rose by more than 200 percent in 2017, which was the year the fighting moved to Raqqa and Mosul, another urban area. It must be noted that it is generally difficult to assess the precise impact that changing the rules of engagement has on civilians, especially when fighting takes place in densely-populated urban centers.

Still, there is other circumstantial evidence of the Trump administration having dismantled precautions aimed at protecting civilians – for example by no longer counting civilian deaths from its expanding drone war. Achieving some kind of accountability for civilian casualties will be very difficult to realize with Donald Trump, a politician known for his dehumanizing language towards Muslims, as the US’s commander-in-chief. Trump has shown a special kind of contempt for humanitarian norms and laws. As he infamously remarked during his 2016 campaign, “The problem is we have the Geneva Conventions, all sorts of rules and regulations, so the soldiers are afraid to fight.” While this contempt, articulated by the most powerful man in the world, represents a danger to humanitarian norms everywhere, we should not lose sight of the continuities in military policies between different US administrations.

Withholding aid

One of the biggest scandals of foreign aid is the lack thereof. Even though massive forced displacement is rearranging the demographic makeup of the Middle East, the funding of UNHCR – the agency tasked with assisting the forcefully displaced – pales in comparison with the immense challenges it faces. Based on its calculations for 2018, only 55 per cent of the $8.2 billion that would be needed was forthcoming. $8.2 billion might sound like a sizable sum, but consider that the world spent $1.8 trillion to maintain or expand its militaries in 2018.

The implications of these funding shortfalls are most tangible in the settlements of the forcefully displaced around the world: UNHCR reports that health facilities become overcrowded and housing decrepit, malnutrition soars, children attend overcrowded classrooms or just drop out of school and vulnerable refugees are at greater risk because expertise to address sexual violence and assist unaccompanied minors cannot be afforded.

Whether directly or by proxy, western countries participate in many of the conflicts that cause displacement and avoid hosting refugees in numbers that would be comparable to the neighboring countries of conflict. This reality makes it all the more deplorable that they do not foot the bill for the aid necessary to provide the bare minimum for displaced people, or rebuild war-torn communities. In this regard Raqqa is, again, emblematic: US-funding for rebuilding is not forthcoming, reportedly because of the absence of a UN peace process and because of fears that the Syrian government might return.

Despite William Easterly’s “The White Man’s Burden” or Dambisa Moyo’s “Dead Aid” – which are both books that are drawing on free market axioms to deliver searing criticisms of foreign aid –, having hit the bestseller lists, aid has proven to be an effective tool in addressing humanitarian concerns: in large parts because of a comparably ambitious international response, the grimmest prognostications on the outcomes of the HIV/Aids crisis – for example that HIV/Aids would kill half of all young adults in South Africa, Botswana and Zimbabwe – could be averted. Dramatic successes were also recorded in turning the tide on malaria, polio and Onchozerkose (river blindness).

As de Waal remarks on the occasion of the UN’s designation that parts of South Sudan have become famine-free, “(h)umanitarians are better at appealing for as-yet-unmet needs than at providing a robust empirical defence of their record.” It is noteworthy that this statement comes from an author who is known to be critical of the tendency of aid-organizations to depoliticize conflict. However, his most recent, meticulously researched opus “Mass Starvation: The History and Future of Famine” documents that aid-organizations have learned from their past mistakes, for example in regards to prioritizing certain groups in relief-operations and appealing to western nations so they launch counterproductive, “humanitarian” interventions. Because of the unexpected professionalism of aid-organizations, they could achieve a lot more than providing the bare necessities (which is not even possible at current funding-levels) for displaced people.

Unfortunately, such opportunities are further diminished because donor governments allocate more and more aid to address security concerns rather than addressing the root causes of forced displacement. For example, significant amounts of German government aid to Sub-Saharan Africa has been repurposed to stem migration towards Europe, providing countries of origin with funds to improve border security technology, training of border guards, as well as joint border patrols so local forces can seal off the borders and prevent further migration to Europe. One of the recent recipients was the government of the now-deposed dictator Omar Al Bashir. Similarly to the Libyan case, the EU in effect outsourced its dirty work to militias in the Sudan context: backed by EU funding, the Sudanese government also used a proxy, the Rapid Support Forces, to seal off the border to Libya. The Rapid Support Forces is the paramilitary force that has been accused of atrocities in Darfur, for which Al Bashir was indicted for war crimes by the International Criminal Court. By spending the funds in the context of an EU-project, the German government manages to circumvent its own legal restriction on cooperating with Sudan.

The Relative Effectiveness of Humanitarian Norms

We should, of course, not exaggerate the effectiveness of international norms. It is hard to argue that humanitarian norms constrained militaries (such as the Soviet Union in Afghanistan, the US in Vietnam and France in Algeria) or the paramilitary proxy fighters in the wars that were fought during the Cold War.

The 15 years after the cessation of the Cold War, however, saw a 40 percent reduction of armed conflict, according to the Global Security Report 2005, one of the most ambitious research-projects to track the changing patterns of global violence. A reason for the reduction of conflict were, in the words of the report’s authors, the proliferation of (and funding for) institutions that “play an important direct role in building global norms that encourage the peaceful settlement of disputes”, for example on the United Nations level. The 15 years following the Cold War was a time in which, at least comparatively speaking, power-politics took a backseat to efforts to expand activism for multilateral norms and peacekeeping, as well as build a global jurisprudence. The post-9/11 phase, however, has seen a rollback of such efforts and a growth in “internationalized” conflicts within states, though the overall number of conflicts has reduced since the year 2016, the year in which researchers at Uppsala University identified an all-time peak in the number of conflicts.

Though humanitarian norms proved effective in reducing violence in the aftermath of the Cold War, it is also important to be aware of more structural criticisms of humanitarian norms as a whole. As the critical legal scholar Ian Hurd argues in “The Empire of International Legalism”, international law – which includes the Geneva Conventions – is not a “neutral framework that sustains all viewpoints” but rather “a political system of governance that advances some interests at the expense of others.” As such, it is more likely to favor “more powerful governments with the greatest capacity to write, interpret, apply, and evade the rules.”

This caveat notwithstanding, international norms may constrain more powerful actors, for example when the public becomes concerned about abuses. As a way of illustrating how norms may prevent military abuses, Evangelista points towards the introduction of Article 5 Tribunals in the US military. Named after the relevant article in the third Geneva Conventions, the tribunals were instituted so that US military members would determine if a captive has a military or civilian background, and afford the captive the basic protection that a prisoner of war is entitled to while the determination is made. Evangelista attributes public acknowledgements of the crimes committed during the Vietnam War to the creation of the courts, and cites their existence as an example for the internalization of the stipulations of the Geneva Conventions by military members at the middle operational level.

However, as Evangelista also points out, such protections can be dismantled: military members were fully prepared to give captive Afghanis and Pakistanis hearings at the Article 5 Tribunals when the civilian leaders in the Bush administration decided that they would dissolve the Article 5 Tribunals following the attacks of 9/11. Dismantling the Geneva Convention protections – for example by arguing that captured Afghanis and Pakistanis are not prisoners of war, but “enemy combatants” – inevitably paved the way for the widespread torture committed during the Bush administration. Humanitarian norms have the potential to offer protection. But if this counter-humanitarian age teaches us anything, it is this: if there is political will, laws conceived for humanitarian purposes do not have to be a roadblock to inhumane policies.

The Way Forward: Addressing the Blind-spots of the Liberal World Order to Save Humanitarianism

Flawed as they might have been, humanitarian norms still made the world slightly more civilized. Such norms contributed to protecting victims of war, aiding the displaced and ensuring humanitarian neutrality for aid-workers. For these reasons, the intentional turning away from such norms should compel a new sense of moral urgency for people of conscious. But how should they counter counter-humanitarianism?

The most immediate and urgent task lies, of course, in wholeheartedly throwing political support towards activists and organizations who provide basic services such as shelter, food or a lifeline rescue where states are intentionally absent, for example the Mediterranean and US-Mexico borderlands. The recent protests in Germany that drew thousands in support for

Rackete – i.e. the captain who was indicted for saving migrants in Italy – and the public support for Scott Waren – who was indicted for providing food, water, clean clothes and beds to two undocumented migrants at the US-Mexico border – are encouraging.

As the dismantling of the Geneva Conventions by the US show, policy formation in times of conflict – and the extent to which it includes humanitarian norms – is a constant venue of political power dynamics. However, they are not exempt from public pressure. It was in large parts because of the public outcry in the US and abroad that the US recommitted itself to the Geneva Conventions in its treatment of prisoners of war. Can public pressure reinsert humanitarian norms into other domains of policy?

As de Waal argues,

“(h)umanitarians tend to be advocates of change. Some of them are redirected revolutionaries (…). Today, humanitarians should seek first to consolidate the edifice that they have built over the last two generations, when – it seemed – history was on their side. (…) The tide is turning. Is it time for humanitarians to turn conservative, in the sense that they should recognize and applaud the huge benefits by the liberal-humanitarian world order.”

There is some truth in this statement. However necessary, there is arguably something conservative about arguing for the protection of norms in the midst of war rather than protesting war itself (though the two do not necessarily exclude each other). It could also be considered conservative to insist on urgently-needed funding for institutions that only prevent the most atrocious outcomes of, rather than make moves to reform or abolish, our current global order – which induces, or at the very least is unable to stop violent conflicts and inequities in many parts of the world. Advocating for humanitarian norms is an ambiguous undertaking since these norms have also been cited by powerful governments to obscure policies that are informed by geopolitical and economic considerations.

We are faced with a contradiction: the liberal world order’s blind spots are, at least to some extent, at the root of the conflicts that make compliance with the norms that this order also produced all the more necessary. For example, the liberal order was advanced through the brutal proxy wars of the Cold War-era (which compelled dynamics that are still fueling today’s conflicts). Even in its current, beleaguered form, it privileges western power.

Contrary to de Waal’s argument for more conservatism among humanitarians, there is a need for progressive solutions to political dynamics that are deeply intertwined with the liberal order: Could we counter rightwing politicians – who might dismantle even more humanitarian norms in the future – without boldly addressing the domestic racial, economic and gender inequities that gave rise to them in the first place? And what about race: Don’t we have to campaign against the racism that leads to public complicity with abuses? Can we halt the erosion of civil rights brought upon by the “War on Terror” without challenging its logics, which prioritize the hegemony of western powers that are privileged by the liberal world order? Do we have to fix the inadequacies of the liberal world order to make sure one of its most beneficial outcomes – humanitarian norms – are maintained?

If we seriously consider the challenges ahead, it appears that humanitarians the world over have to become less, not more conservative to ensure that we can pull the whole project of humanitarianism back from the brink.

Dr. Jonas Ecke has conducted research for aid organizations in Ghana, Liberia and South Sudan. He also conducted brief project-travels to Turkey and Iraq. He was the recipient of the 2012 Human Rights Defender Award given by the Society for Applied Anthropology