Part II - IOM in Action

7 Crisis and Change at IOM Critical Juncture, Precedents, and Task Expansion

Christian Kreuder-Sonnen and Philip M. Tantow

7.1 Introduction¹

The Constitution of the International Organization for Migration (IOM) lists the purposes and functions of the Organization in Article 1. In particular, they encompass the organized transfer of migrants, refugees, and displaced persons in agreement with the states concerned as well as the provision of broader ‘migration services’ ranging from language training to advisory functions. IOM and its predecessor organizations have often deployed these functions in the context of a humanitarian crisis, particularly in post-conflict settings – starting with refugees in post-War Europe. For a long period, however, the organization’s activities were restricted to migration management, that is, the logistical support for migration at the request of member states,² leading to its depiction as nothing but a better travel agency.³ By contrast, IOM’s functions today comprise frontline emergency relief and a staggering variety of humanitarian activities that often only remotely link to migration issues.⁴ In fact, its institutional development in the post-Cold War era seems to be one of the most intriguing features in the history of IOM. It is characterized by rapid organizational growth and task expansion, a shift in the allocation of resources from migration facilitation to the provision of humanitarian aid in emergencies, and an engagement with an ever-wider range of policy fields, now encompassing issues as diverse as climate change and border control.⁵ How can these dramatic developments be explained?

Literature on IOM has identified important facilitating conditions for its task expansion: First, its ‘non-normative mandate’⁶ and functional organization type certainly represent a driver. Unlike many other international organizations (IOs) (incl. esp. UNHCR), IOM is not tasked to oversee and help with the implementation of international legal rules in its field. This makes it more flexible to go for new and rather unrelated tasks.⁷ Second, its projectized funding structure plays a role. Since IOM only has a very small core budget and receives funding almost exclusively for concrete projects, it has a financial incentive to broaden the scope of its activities – and convince member states and other donors of the necessity to operate in new fields.⁸ These important insights notwithstanding, we are still lacking a clear understanding of how IOM took hold in a growing number of areas and what institutional mechanisms underpinned this development.

In this contribution, we develop a historical institutionalist argument that combines the concepts of critical juncture and path dependency with agency-driven accounts of institutional change in IOs.⁹ Historical institutionalism assumes that institutional trajectories are path-dependent, that is, their development is conditioned by original decisions that introduce either self-reinforcing or self-undermining reactive sequences.¹⁰ While a strong focus thus lies on the relative stability of institutions and their gradual change, historical institutionalism also theorizes the original moments that create path dependencies in the first place. These critical junctures are conceived as situations in which the structural constraints on political action are significantly reduced and ‘the range of plausible choices open to powerful political actors expands substantially’.¹¹ Which political actors at the IO level can be expected to benefit from such conditions is subject to theoretical controversy in international relations. On the one hand, as expected by much rationalist theorizing on IOs, the most powerful member states might seize the opportunity to shift the institution in their desired direction.¹² On the other hand, as anticipated particularly by constructivists, it might also be the bureaucratic IO organs that attain institutional change through organizational entrepreneurship.¹³ Drawing on recent accounts of crisis-induced authority expansions by IOs, we assume that both may be possible, but hold that the strongest institutional ruptures can be expected where organizational entrepreneurship is met with tacit or explicit support by the most powerful member state(s).¹⁴

We submit that the metamorphosis of IOM in the past 30 years can be understood as a path-dependent development rooted in a critical juncture at the beginning of the 1990s. At the level of the international system, this period was marked by the end of the Cold War that infused international politics with a large degree of fluidity in general. At a situational level, the 1991 Gulf War represented a contingent window of opportunity for IOM to change its role from post-conflict migration manager to active humanitarian emergency responder. The shift was premised on the coincidence of the organization’s willingness to assume responsibility in this area and the United States’ active enlistment of IOM to fulfil crisis management tasks on the ground. This decision proved momentous as it set the organization on a path that has shaped its development to the present day. Not only did the Gulf intervention leave a lasting imprint on IOM’s institutional structure, but it also provided a blueprint for institutional expansion that would be reactivated time and again over the next decades: Humanitarian crises expose governance gaps that IOM is ready to fill on an ad hoc basis which member states accept ex-post or even invite ex-ante. This repeated match of demand and supply creates social precedents for IOM that widen its practical and operational experience and hence increase the range of tasks that ‘naturally’ fall within its remit over time.

The analytical narrative we provide in this chapter on IOM’s institutional evolution since the entry into force of its Constitution contributes to a better understanding of the organization’s changing character, transitioning from a foremost migration manager to a provider of humanitarian assistance in active crises. By focusing on the institutional mechanisms underlying this process, we shed light on IOM’s internal dynamics that so far have remained ‘almost completely unexamined’.¹⁵ The remainder of this chapter is structured as follows: First, we provide the theoretical background to our argument by providing theoretical building blocks from historical institutionalism and developing expectations about IOM’s institutional development in times of crisis. In the main part of the chapter, we first analyse the critical juncture at which IOM’s institutional path initially deviated (the 1990–1991 Gulf War) and show how it set in motion mechanisms of reproduction which reinforced the expansionary logic of IOM’s crisis interventions. Second, we illustrate how this logic of mandate extension through precedent setting has taken hold in the organization in two important crisis interventions by IOM in the more recent past: the Libyan civil war (2011), and the 2014–2016 Ebola crisis. In the concluding section, we discuss our findings with a view to their implications for the organization’s ethos, obligation and accountability.

7.2 Historical Institutionalism and International Organizations

In this section, we first introduce concepts from historical institutionalism, especially critical junctures and path-dependent processes of self-reinforcement, that provide analytical tools to understand long-term institutional developments. Second, we build on theories of international organizations to derive concrete expectations about the actors and conditions driving change at IOM.

7.2.1 Critical Junctures and Path Dependence

Historical institutionalism is rooted in comparative politics. More recently, its use has been extended to international institutions and IR more generally.¹⁶ The core insight of historical institutionalist thought is that institutional outcomes at a given point in time are regularly not the product of exogenous factors and independent actor choices at that moment, but follow from path-dependent processes of reproduction and change endogenous to the institution itself. While not oblivious to mechanisms of gradual transformation,¹⁷ historical institutionalists usually take a ‘punctuated equilibrium’ view on institutional change. That is, long periods of relative stability are only interrupted by rare moments of contingency in which new institutional paths are chosen. These moments are called critical junctures. Here, actor decisions evoke reactive sequences which set in motion self-reinforcing (or self-undermining) mechanisms of path-dependent institutional development.¹⁸

Historical institutionalist explanations thus gravitate towards the concepts of critical junctures and path dependence. Generically, critical junctures can be defined as ‘relatively short periods of time during which there is a substantially heightened probability that agents’ choices will affect the outcome of interest’.¹⁹ The distinctive feature of such historical junctures in which actor choices matter more than usual ‘is the loosening of the constraints of structure to allow for agency or contingency to shape divergence from the past’.²⁰ Often, critical junctures are equated with crises or turning points. They are not necessarily instantaneous events, but can represent ‘short phases that may actually last for a number of years’.²¹ The main challenge in the analysis of critical junctures is to identify cases in history and to explain why these moments in time are characterized by weaker constraints on agency than others.

According to Soifer (2012), critical juncture accounts need to identify and distinguish permissive and productive conditions. ‘Permissive conditions can be defined as those factors or conditions that change the underlying context to increase the causal power of agency or contingency and thus the prospects for divergence’.²² The focus thus lies on structural shifts, unintended consequences, exogenous shocks, etc., that interrupt the previously established processes of institutional reproduction. Productive conditions, on the other hand, are those factors that – in the possibility space created by the permissive conditions – cause divergent institutional outcomes that then represent the starting point for new institutional equilibria.²³ Often, productive conditions will combine with so-called ‘critical antecedents’, that is, factors preceding the historical juncture that unfold different causal effects under the changed conditions.²⁴ For instance, if an institutional equilibrium is unsettled by permissive conditions, agents that are at the right place at the right time (the productive condition) may effectuate change by redeploying long-established institutional capacities (the critical antecedent) for new purposes.

Once a critical juncture ends, historical institutionalists expect the deviant outcome to trigger mechanisms of reproduction that create new path dependencies. Most often, these are mechanism of institutional self-reinforcement. Here, positive feedback effects change actors’ attitudes in favour of an existing institutional practice. As Rixen and Viola explain:

The process is reinforcing because it is subject to increasing returns, that is, a situation in which the returns to engaging in a certain behavior or from adopting a certain rule increase over time and make the adoption of alternatives less attractive. The process is self-reinforcing, because it is reinforced through variables endogenous to the institution.²⁵

From a utilitarian perspective, institutional reproduction is the result of a cost-benefit imbalance of transformation. Given the investments sunk into setting up the institution as well as the learning and coordination effects produced by the institution once in place, opportunity costs for drastically altering the existing or creating an alternative institution are high and increasing over time.²⁶ Moreover, as highlighted by Zürn with a specific view to IOs, there are also increasing returns through cognitive effects. Both institutional actors and IO members engage in increasingly close interaction, producing convergent understandings (learning) and adaptive expectations, that is their belief in the success of the institution leads to adaptive behaviour which reinforces the institution’s ability to develop in the desired direction.²⁷

7.2.2 Assumptions about International Organizations and IOM

From the perspective of historical institutionalism, then, a long-term institutional development such as IOM’s rapid expansion in the area of humanitarian emergencies is likely to be rooted in a contingent starting point, a critical juncture, that sets in motion a process of institutional reproduction. As a general model of institutional change, however, it naturally lacks action and actor-theoretic specifications that would allow deducing concrete expectations for either the outcome of critical junctures or the drive behind its reproduction.²⁸ In the specific context of IOs, the question is who are the ‘powerful political actors’ for whom the range of available options increases during a critical juncture, who benefits and consequently whose repeated interactions increase the returns of institutional practice over time.

Most theories about IOs differentiate between IOs’ member states on the one hand and IOs’ supranational bodies such as secretariats and judicial entities on the other, and hold specific views on their respective role and influence on the design and direction of IOs. At one end of the spectrum are rational institutionalists who contend that all power lies with member states: IO bureaucracies are conceived as agents fulfilling tasks on behalf of their principals without much independent power of their own.²⁹ While often understood as one collective principal, a distributive variant of the theory highlights that member states differ in their capacity to wield control over policy which is why institutional choices will typically reflect the interests of the most powerful among them.³⁰ Moments of crisis and contingency, then, should represent opportunities for powerful states to steer IOs in their preferred direction.³¹ At the other end of the spectrum are sociological institutionalists who emphasize the ability of IOs to wield independent power: IOs are conceived as partially autonomous bureaucracies influencing member state behaviour through their delegated, moral, and epistemic authority.³² Importantly, this literature argues that ‘IOs tend to define both problems and solutions in ways that favour or even require expanded action for IOs’.³³ Mission creep is a distinct possibility. Seen from this perspective, crises could represent an opportunity for entrepreneurial IO staff to push their organization in an expansionary direction.³⁴

We adopt a middle-ground position between these two poles.³⁵ There is no compelling theoretical reason to treat the influence of powerful states and that of entrepreneurial IO staff as mutually exclusive or either as individually exhaustive in accounting for all patterns of institutional choice and change at IOs. It is much more plausible to entertain the possibility that both play a role to varying degrees depending on empirical conditions. At IOM, these conditions generally seem to favour a strong role for powerful states.³⁶ Compared to the specialized agencies of the UN, for instance, IOM has very small headquarters (both in terms of staff and funding), it lacks an appreciable amount of delegated authority, and its formal role in policy coordination among member states is minuscule. Moreover, states’ power to choose the projects they want to fund puts them in a prime position to control the organization. On the other hand, the general shortage of funds also fosters organizational entrepreneurialism,³⁷ and the lack of clearly mandated tasks opens the way for IOM to venture into various areas.³⁸ Additionally, IOM has a high number of relatively autonomous country offices with skilled and experienced staff whose expertise can be decisive for the decision to launch a new project.³⁹ Hence, even though it ultimately always depends on member state approval, the organization has both motive and opportunity to push its institutional path towards expansion.

In sum, our theoretical conjecture thus holds that IOM’s task expansion will be marked by both push factors on the part of the organization and pull factors on the part of powerful member states. We suppose that a critical juncture proves especially momentous if it creates conditions under which these factors align and show the actors that they may both profit from the expansionary path taken. For the case at hand, we refer in particular to IOM’s ability and eagerness to provide operative crisis management capacities in new areas that are largely ungoverned by any other actor, and powerful member states’ desire to leverage this capacity in situations that they care about. Any such situation, we argue, creates a social precedent through which IOM gains experience, knowledge and reputation as a flexible crisis manager. After the fact, we expect the organization to entrepreneurially foster an institutionalization of the precedent by creating corresponding programs, divisions, or operational frameworks which normalize the new-found tasks. Such formal and informal institutional devices can be used to signal to member states that IOM is ready to take on similar jobs in the future and that a wider than previously considered range of situations falls within its remit. The process is thus foremost a cognitive one by which mutual expectations among state and organizational actors converge and create increasing returns from expansion.

7.3 The Critical Juncture: IOM in the Gulf War

Operations in the context of crises have always been part of IOM’s activities, especially when large numbers of refugees were involved. In fact, the organization portrays its own history as one tracking man-made and natural disasters in which it provided help to migrants.⁴⁰ However, until ‘the late 1980s, IOM’s emergency responses were traditionally focused on movements and medical checks related to the resettlement of refugees and displaced persons. In the 1990s that situation changed’.⁴¹ It expanded the array of its crisis-related activities to encompass an ever-wider range of services such as humanitarian evacuation, camp management, and border control. During the 1990–1991 Gulf War, IOM for the first time adopted the role of first emergency responder evacuating displaced persons in an active crisis context. In this section, building on the concept of critical juncture, we analyse how this decisive precedent came about and what short and long-term institutional effects it produced.

7.3.1 Permissive and Productive Conditions: Understanding IOM’s Gulf War Operations

Arguably, a number of exogenous factors eased the constraints on political agency at IOM in the early 1990s, creating the possibility space for its expansion in the realm of humanitarian emergency assistance. One such permissive condition certainly was the end of the Cold War which created a moment of malleability in international politics more generally. Most importantly for our purposes, the fall of the Soviet Union and the temporary cessation of great power rivalry allowed for a surge in Western-led, liberal forms of institutionalized cooperation around the globe.⁴² New and more capable organizations were created (e.g. WTO, OPCW, etc.), existing ones started tapping the potential of their original mandates (e.g. UN Security Council), or received additional authority.⁴³ Similarly, for IOM the end of the Cold War created a window of opportunity to transition from a Western or US-led service organization to an IO with global ambition. It soon expanded its membership base to the East and it suddenly seemed possible to more fully live up to the global aspiration included in the 1989 Constitution.⁴⁴

The IOM Constitution itself represents an additional factor that opened the range of available options and increased the possibility for agency. It is an important historical coincidence that the amendment to the 1953 ICEM Constitution, debated since 1975 and adopted in 1987, entered into force on 14 November 1989, five days after the fall of the Berlin Wall.⁴⁵ The new Constitution was supposed to reflect a broadened field of activities that the organization had come to occupy and the changed geographical focus since its creation as an ad hoc Committee to deal with post-war refugees in Europe in the 1950s. In combination with the (in-)famous lack of a formal protection mandate given to IOM by its member states, that is, the fact that there is no set of norms and rules that the organization is supposed to observe and help implement,⁴⁶ the result was a constitutional text that merely states very broad objectives for the organization without clearly defining either the scope of these goals or the way that they should be realized. Article 1 says that IOM shall ‘make arrangements’ and ‘concern itself’ with the ‘organized transfer’ of migrants in need of assistance as well as refugees and displaced persons. This can mean virtually anything. While there is no indication that the Constitution drafters intended to carve out space for the organization to expand into new areas, this imprecision and rule ambiguity factually provided IOM with the legal flexibility to engender policy innovations.⁴⁷

Finally, the turn of the decade also saw a steep rise in regional inter- and intra-state armed conflicts that strongly influenced population movements by generating huge numbers of refugees and displaced people. The 1990–1991 Gulf War was the first such conflict. After the Iraqi invasion of Kuwait, the United States launched the first UN-sanctioned military campaign to liberate Kuwait and protect Saudi Arabia. Moreover, amidst the hostilities, Iraqi Kurds attempted a secession from Iraq that was quashed by air and ground attacks of the Iraqi military. At both fronts, thousands of refugees and displaced people were left in dire conditions. Kuwait, in particular, had hosted a large number of migrant workers from South-East Asia that were displaced within Kuwait or fled to neighbouring Saudi Arabia. In a strict legal sense, these were not refugees according to the Geneva Convention that pertains to individuals being forced out of their country of citizenship (Art. 1). The movements of people during and after the Gulf War thus did not fall squarely and exclusively within the mandate of UNHCR⁴⁸ – a condition that opened the door to IOM.

There was nothing necessary about IOM’s subsequent involvement in the humanitarian emergency response, however. For one, UNHCR actually offered its services to the UN Secretary General and thus signalled its readiness to take the lead in the humanitarian emergency response.⁴⁹ That the offer was refused and IOM given the lead⁵⁰ instead is a puzzle to be explored. Moreover, nothing in IOM’s mandate and previous practice would have made it seem necessary or logical for the organization to stage a big emergency relief effort. Similar crises in the previous decades had not triggered that kind of response and the new Constitution did not specifically ask for it either. The question is thus what productive conditions caused IOM’s surprisingly intensive engagement in the context of the Gulf War. After all, IOM became active in the region at an extremely fast pace and immediately started to evacuate displaced persons and stranded migrant workers by air, land, and sea routes. IOM set up offices in Kuwait and Southern Iraq and moved as close to areas where hostilities were ongoing to identify and assist people willing but so far unable to leave the countries. As early as 3 September 1990, a month after hostilities had started, IOM had organized the first ‘humanitarian repatriation flight’⁵¹ and evacuated about 155,000 people by the end of the year. Later, it also cooperated with UN Blue Helmets to facilitate the safe repatriation of more than 600,000 displaced Kurds that were transported in a fleet of locally rented trucks and buses.⁵²

What drove IOM to take on this new role? The official account tells a rather formalistic story of streams of forced migrants causing the affected governments to call on the UN for help which then asked IOM to take the lead in providing transportation and return-related services.⁵³ However, the account given to us in an interview by Bill Hyde,⁵⁴ the head of IOM’s emergency response team in the Gulf War, has a strikingly different tone to it. In his recollection, it was especially the coincidence of IOM’s willingness and ability to act and the double leadership role of the US in the coalition forces as well as in IOM that facilitated its entry to the scene. The US happened to have the authority both within IOM to sanction a certain course of action and on the ground in the conflict region to allow actors of their choice to become active. The particularly dominant position of the US in IOM, which the US valued for its managerial and outcome-oriented style of operation, contrasted with its rather complicated relationship with UNHCR which it deemed too liberal and politically entangled at the time, may explain how IOM got into the central position.⁵⁵ Hence, before any other agency apart from the Red Cross had reached the region, the first IOM team was already on its way. On board the US ambassador’s aeroplane it landed in Kuwait City⁵⁶ and was introduced to the Kuwaiti government to whom the IOM officials explained what they had to offer and were authorized to carry it out.⁵⁷

What made IOM an attractive cooperation partner for all concerned governments and gave it a competitive advantage over other IOs was basically two critical antecedents. On the one hand, IOM was not constrained by a mandate bound to legal definitions of who could be assisted under what conditions. According to Hyde,⁵⁸ ‘IOM has always been doing things on a timely basis for the greater good’ – a notion that was ‘a bit nebulous without being illegal’. In this sense, IOM showed an amount of flexibility much required in the complex Gulf War crisis that was ‘not very much in the DNA of established UN organizations’. On the other hand, IOM possessed the technical expertise needed for the task at hand. While it had never operated under these precise circumstances and had never used its tools for the exact same purposes, it was still very used to organizing the logistics of people's movement. Accordingly, the main operative task in Kuwait and Iraq ‘fit right into our ballpark’.⁵⁹ In the end, IOM was already operating an ad hoc but functional system of emergency evacuations when other actors entered the scene and inter-agency coordination started. Due to the organization’s first-mover advantage, its leadership position in the area of emergency evacuations and the provision of shelter was never questioned. ‘Needs were so immediate that there was never the question if we should have the lead … it was ‘you have a plan, you have the resources, it’s within your broad mandate, you can do this, you can do it now, so please do it’.⁶⁰

7.3.2 The Short- and Long-Term Institutional Consequences of IOM’s Gulf War Operations

Many things had to come together for IOM to adopt this outstanding role on the humanitarian assistance front in the Gulf War. Important permissive conditions such as the end of the Cold War and the outbreak of the Gulf War created a possibility space in which productive conditions such as the US’s dissatisfaction with UNHCR and IOM’s flexible problem-solving approach allowed for an unprecedented institutional outcome. But how did the Gulf War episode affect the organization’s institutional development on the long run? According to Georgi, ‘the First Gulf War in 1990/1991 was the single most important event at that time for IOM’s subsequent expansion’.⁶¹ As we argue, it set in motion a path-dependent process of institutional growth in the area of humanitarian assistance by ex-post formalizing competence in the area and creating organizational capacity which would be redeployed to different contexts, thus facilitating a cognitive normalization over time.

While IOM’s Gulf operations were initially conceived as a unique and one-off engagement, Director-General Purcell recognized the potential for a recurrence of comparable scenarios and tasked the head of IOM’s Gulf operations with the establishment of the Emergency Response Unit (ERU) which became operative in 1992.⁶² This was a completely independent process without member state interference as the ERU at first did not require any new resources. Its working method was to connect, train, and equip standing staff for future emergency interventions by IOM.⁶³ Over the next few years, the Unit developed IOM’s emergency preparedness and put it to tests in a number of refugee- and displacement-generating conflicts such as in Yugoslavia (1992), Rwanda/Zaire (1994), and Chechnya (1994). Building on this increasingly frequent involvement in humanitarian assistance, the IOM Secretariat in 1995 proposed a ‘strategic plan’ supposed to formally include for the first time a task to provide migration assistance to persons affected by emergencies. Reportedly, this step was not unequivocally supported by member states who feared overlaps and duplications with other IOs in this area.⁶⁴ However, while IOM needed to officially recall that it did not view itself primarily as an emergency response organization, none of the member states were seriously opposed to its substantive work in the realm of humanitarian assistance.⁶⁵ Accordingly, IOM continued to step up its crisis response activities. The increasingly extensive involvement of IOM in conflict regions such as East Timor and Kosovo towards the end of the 1990s, for instance, led to an institutional solidification of these efforts in the larger Emergency and Post-Conflict Division in 2000, a precursor of today’s Department of Operations and Emergencies (DOE) that firmly enshrined humanitarian assistance in emergencies in IOM’s institutional structure.⁶⁶

Beyond the immediate impact that the Gulf War intervention had on IOM’s organizational structure, it also influenced the organizational culture and its perception by its environment. As an exemplary precedent, IOM’s Gulf operations changed how IOM’s role was perceived internally and externally. The precedent suggested a pattern that was transferrable: A crisis exposes governance gaps in terms of timing and functions; IOM has some capacity in its portfolio that can be used to fill such gaps; IOM immediately and actively offers and advertises its services to member states who value the organization’s flexibility and low expected normative costs; IOM moves in before anyone else and sets another precedent for a new kind of activity; if carried out effectively, there is recognition at both IOM and its member states that this type of activity may be useful in other contexts, too, which leads to its ex-post institutionalization. At the level of organizational culture, this produced and over time reinforced an ‘esprit de corps’ among IOM’s civil servants that help would be provided wherever help was needed, irrespective of formal responsibilities and conventional views of the boundaries of migration management.⁶⁷ At the level of organizational environment, member states and relevant non-state actors grew increasingly accustomed to IOM’s flexibility and started to use its fungible capacities for crisis-related activities that were ever more remote from the organization’s previous focus on migration management and, sometimes, even from the issue of migration altogether. For instance, the Organization for Security and Cooperation in Europe (OSCE) enlisted IOM to facilitate out-of-country-voting for citizens of Bosnia and Herzegovina in 1996–1999,⁶⁸ and, starting with Mozambique in 1992, several member states made use of IOM’s field presence to assist post-conflict disarmament, demobilization, and reintegration (DDR) campaigns in by now over 120 projects.⁶⁹

With both sides learning how to profit from each other in a growing array of activities and building on a consolidating base of experiences, we may conclude that a mutually reinforcing cognitive process of convergence underlies a mechanism of increasing returns that reproduces the institution’s path towards horizontal task expansion. In the following, we use two important cases in the more recent history of IOM to underscore the claim that this logic of institutional expansion through precedents has taken hold in the organization’s development: the 2011 civil war in Libya and the 2014–2016 Ebola crisis.

7.3.3 Path-Dependent Reproduction of IOM’s Expansionary Logic in Libya and West Africa

Both the civil war and foreign intervention in Libya and the Ebola crisis in West Africa gave rise to further emergency operations by IOM that covered partly new terrain and led to ex post institutional accommodations of its practice. While the Libyan case was marked by the creation of new best practices by IOM as a now focal manager of migration crises, the case of Ebola saw IOM redeploy its emergency toolkit to a new type of crisis context, namely one caused by the spread of a contagious disease.

7.3.3.1 Setting New Best Practices in Libya

In February 2011, civil unrest erupted in Libya in the context of the so-called Arab Spring. The situation quickly escalated into a civil war between the Libyan army of the Gaddafi government and rebels supported by NATO air forces. In terms of the number of people displaced, the civil war caused one of the worst migration crises in the region since the first Gulf War. Before the war, the Libyan economy had heavily relied on migrant workers with foreigners making up about 21–35% of the Libyan population.⁷⁰ When the war broke out, both Libyan citizens and migrant workers tried to escape the violence and flee the country. Many of the foreigners who wanted to leave Libya were (mostly undocumented) manual labourers from sub-Saharan Africa.⁷¹ Soon, a severe governance gap was exposed: While the migrant workers’ countries of origin lacked the capacity to bring home their citizens, UN agencies were, at first, prevented from providing assistance due to the strict security protocols and the escalating violence on the ground.⁷² Moreover, the UN was in a weak position to negotiate access to the country as the Security Council had authorized military action against the Gaddafi regime. The situation called for an actor to coordinate with both, the Libyan government and NATO, which was trusted by the migrant workers’ countries of origin,⁷³ and able to enter the dynamic and dangerous environment in Libya. IOM fulfilled these criteria.

IOM was the first responder on site.⁷⁴ Its field office in Tunisia, which conducted most of the emergency response, consisted of two to three employees on the day the war broke out. Within a week, IOM had deployed about 1000 staff to the Tunisian country mission who were working on the ground at the Libyan border.⁷⁵ Soon after the onset of the crisis, IOM coordinated with UNHCR to set up the ‘Humanitarian Evacuation Cell’ (HEC), a liaison body of the two organizations at headquarters’ level.⁷⁶ It coordinated with the Libyan government to obtain the needed clearances and access to regions affected by ongoing fighting and with NATO to fly out migrants through the no-fly zone.⁷⁷ Moreover, IOM coordinated with humanitarian organizations, set up temporary camps, performed necessary health checks, and transported large numbers of migrants out of Libya.⁷⁸

Most of IOM’s operational activities in the early phase of the 2011 Libyan migration crisis can be considered part of what had become the organization’s core crisis portfolio. At that point, IOM was used to negotiate with warring parties to gain access to conflict zones and its abilities as a facilitator of mass transport were well known. Two aspects of IOM’s crisis response in Libya were unprecedented, however. One was that beyond evacuation, IOM also started building capacities to support migrants once they disembarked their means of transportation outside the conflict zone.⁷⁹ By creating transition camps, integration programs, and community projects, IOM assumed tasks typical for a development agency. The second was IOM’s focal position as a coordination hub between all parties involved. In the past, IOM had operationally assisted UN-coordinated efforts on the ground, especially in tandem with UNCHR.⁸⁰ Over the course of the Libyan crisis, however, it became a key coordinator, eventually co-leading the Refugee and Migrant Platform and preparing a Joint Operational Framework for Humanitarian Response in Libya.⁸¹

IOM’s initial response to the Libyan migration crisis ‘was unanimously welcomed abroad’,⁸² as the migrant workers’ countries of origin praised the organization’s swift action on the ground. Additionally, and in contrast to what had previously been understood as a rather tense relationship,⁸³ UNHCR acknowledged the improved partnership between the two organizations that proceeded to co-publish joint statements at a distinctly accelerated rate.⁸⁴ This positive feedback notwithstanding, a few months after the start of its operations IOM actually encountered an unprecedented funding lag.⁸⁵ At the peak of the crisis, the organization ran out of funds to charter all the planes necessary to transport migrants to diverse locations on different continents.⁸⁶ Even though most of IOM’s typical donor states were willing to finance the efforts, the US preferred to fund efforts in Iraq rather than in Libya,⁸⁷ causing a crunch in the operations. IOM and its member states thus had to learn the hard way that the organization’s short-term project-based budget proved insufficient to fund emergency evacuations of such a scale.⁸⁸

After the acute phase of the 2011 Libyan migration crisis had subsided, IOM translated such lessons into prescriptions for the handling of future crises. First, it used the Libyan example to sell the idea of a new funding mechanism to its member states.⁸⁹ With success: The IOM Council created the ‘Migration Emergency Funding Mechanism’ in December 2011, a permanent fund to finance IOM’s widened set of humanitarian evacuation efforts in future similar situations.⁹⁰ Second, the complex and multi-layered crisis in Libya arguably served as an eye-opener demonstrating the need for a structured and concerted approach to the governance of migration crises.⁹¹ The Libyan experience thus provided the spark for the development of the ‘Migration Crisis Operational Framework’ (MCOF), which was approved by the IOM Council in 2012.⁹² MCOF has since become a centrepiece of IOM’s emergency responses. The document describes a variety of activities to be undertaken in crisis situations by IOM staff on the ground. While the document rationalizes a task expansion beyond mere migration matters, it was justified as enabling the organization to even better respond to such situations in the future.⁹³ Third, IOM’s improved relationship with UNHCR and generally the functioning inter-agency coordination during the Libya crisis also spurred lasting institutional change. In particular, the HEC, which was originally ‘thought to be time-limited’ became a permanent mechanism ensuring sustained cooperation with UNHCR.⁹⁴ Moreover, in 2016, IOM became a related organization to the UN, formalizing the ever-closer embeddedness of IOM within the UN framework⁹⁵ and thus allowing IOM to assume the role of the central coordinator in future crises.

7.3.3.2 IOM’s Venture into Global Health Crisis Management: The 2014–2016 Ebola Outbreak

Another illustrative example of IOM’s expansion into a new area that few would have associated with the portfolio of the organization is its involvement in the 2014–2016 Ebola epidemic in West Africa. In March 2014, an outbreak of the Ebola Virus Disease (EVD) was detected in Guinea. At that time, the virus had already spread to neighbouring Liberia, Sierra Leone, and Mali.⁹⁶ While certainly propelled by the fact that various cultural communities in the region span borders, the resulting health crisis had little to do with migration.

Similar to the Gulf War and the civil war in Libya, the situation in West Africa was perceived as very dangerous and unclear. Given the magnitude of the problem and the limited governance capacities of the states involved, some of IOM’s most influential donor states, the United Kingdom, France, and especially the United States, asked the organization for assistance.⁹⁷ At first, IOM hesitated to get involved due to safety concerns for its staff⁹⁸ in light of what was perceived as a ‘completely new threat’.⁹⁹ However, the US government under the Obama administration insisted,¹⁰⁰ referring to IOM’s proven ability to move into extremely difficult situations with speed and quick adaptability.¹⁰¹ Since the organization lacked a health-related framework for operation at the time, IOM started projects under its recently established ‘Humanitarian Border Management’ (HBM) framework, which intends to prepare governments and border authorities for crisis-induced mass movements and displacement.¹⁰² IOM joined a cluster of IOs responding to the EVD crisis, which included the World Health Organization (WHO) and was coordinated at headquarters’ level by the UN Mission for Ebola Emergency Response (UNMEER).¹⁰³

Contrary to IOM’s previous crisis responses, it is worth noting that the organization did not jump on the opportunity to enter uncharted territory in the case of the Ebola epidemic. Of course, the organization’s hesitation was not based on concerns about potential mandate violations or organizational over-stretch, but about its staff security. The fact that IOM’s most influential donor states still enlisted the organization for sake of its flexible crisis management capabilities illustrates the advancement of the cognitive mechanism of self-reinforcement. After repeated demonstrations of its usefulness for varied crisis governance tasks, IOM’s member states seem to have internalized an impression of the organization as a quasi-universal tool deployable in any kind of crisis context. IOM does not necessarily have to push for its involvement anymore – it is being pulled in.

Once the decision was taken, the organization repeated the same pattern in had established in previous crises. It quickly deployed its staff and started out with its core activities – the documentation and transportation of people – in order to ensure that virus testing results got to the correct individuals and that patients could reach health facilities.¹⁰⁴ Soon, IOM identified governance gaps on the ground which were not filled comprehensively by any other responder and could be addressed by IOM. Thus, IOM started to conduct health screenings,¹⁰⁵ sanitized migrants,¹⁰⁶ and provided psychosocial counselling sessions at schools in areas affected by EVD.¹⁰⁷ It set up clinics and emergency treatment centres based on a US model¹⁰⁸ and managed its own Ebola treatment units (ETU).¹⁰⁹ IOM was the first to conduct trainings of border officials¹¹⁰ on health screening¹¹¹ and later formally took over the full management of the Ebola training academies from the United Kingdom’s Ministry of Defense in Liberia¹¹² and Sierra Leone.¹¹³ Moreover, IOM built structural improvements to border checkpoints, creating so-called flow monitoring points (FMPs)¹¹⁴ to collect data on people’s movements based on the HBM framework.¹¹⁵ These border surveillance measures led to the creation of an unprecedented collection of data mapping population flows in the region.¹¹⁶ Finally, IOM carried out a comprehensive public health information campaign, including radio spots,¹¹⁷ town hall meetings, billboards, posters, and comics,¹¹⁸ to inform the public on matters like EVD prevention measures, immunization campaigns, the ETUs, and the fight against the stigmatization of EVD survivors.¹¹⁹ The information campaign also involved consultations with local authorities and community leaders¹²⁰ who were trained on community preparedness for EVD.¹²¹

While the documentation, logistics, and transportation parts of the operation were IOM’s core business, many of IOM activities during the Ebola crisis appear to be new endeavours for the organization, at least at such a scale and with such intent.¹²² It was the first time that IOM engaged in border surveillance with FMPs according to the HBM framework and it had neither conducted a major public health campaign nor taken over the management of entire emergency treatment centres before.¹²³ To be sure, IOM was also used to health-related activities inasmuch as ground staff often performed routine health checks for migrants before boarding transportation and the organization had been involved in the cholera outbreak in Haiti a few years prior. In the Ebola crisis context, however, IOM conducted health checks and treatments at a new scale.¹²⁴

While the World Health Organization (WHO) was criticized for its (mis)management of the Ebola epidemic,¹²⁵ IOM received mainly positive reactions for its involvement in West Africa, even though it was not expressly mandated to respond to health emergencies. For example, UNMEER repeatedly expressed its appreciation of IOM’s activities¹²⁶ and the WHO Director-General praised the Ebola-related cooperation with IOM in a speech at the IOM Council.¹²⁷ Moreover, at the IOM Council, an African Union spokesperson thanked IOM for the swift response to the crisis.¹²⁸ However, some member states, especially the Netherlands, also voiced concerns about the apparent mandate violations in the Ebola crisis.¹²⁹ IOM’s leadership retorted that ‘migration is a cross-cutting issue’ and that it was able to ‘tie all its activities to migration’.¹³⁰ In the debates, it received backing by the US as one of IOM’s most influential member states and major donors. That the Americans praised the organization’s operation in the context of the Ebola crisis successfully muted concerns regarding legal issues and mission.¹³¹

Again, IOM followed the pattern it had established with its involvement in the Gulf War and used the positive feedback from its major donor state to create a new framework called ‘Health, Border and Mobility Management’ (HBMM)¹³² in order to formalize its expanded portfolio.¹³³ Based on the understanding that diseases do not stop at borders,¹³⁴ HBMM was considered a reiteration of the HBM framework.¹³⁵ It includes a diverse set of tasks ranging from ‘operational research, evidence, data gathering and sharing’, which normalizes the surveillance aspects of the Ebola response and underlines IOM’s continued effort to expose governance gaps during crisis, to ‘enhanced capacity of health systems and border management services’.¹³⁶ Sources inside IOM maintain that the main lesson learned from the Ebola response was the realization of a ‘continued need for capacities’ to respond to health crises¹³⁷ and that the HBMM framework was a direct result of IOM’s Ebola crisis response.¹³⁸ Since then, IOM has continued to perform health-related activities in crisis response operations around the world based on the HBMM framework.¹³⁹ In the context of the contemporary COVID-19 pandemic, IOM is promoting its ‘Global Strategic Preparedness and Response Plan’, which is anchored in the HBMM framework.¹⁴⁰ Starting with the Ebola crisis response, IOM has thus successfully established itself as a player in yet another policy field not originally covered by its mandate.

7.4 Conclusion

Today’s institutional design and policy of IOM is heavily influenced by the historical legacies of its earlier crisis interventions. As we argued in this chapter, IOM’s contingent emergency response in the Gulf War marked a critical turning point in the organization’s evolution. Ever since, it has embarked on an institutional trajectory branching out further and further into the realm of humanitarian assistance in an ever-wider range of crisis contexts and in an ever more central role. The case study attests to the power of precedents in IOM’s development. As predicted by historical institutionalism, once institutional choices provide increasing returns over time, they are not easily undone. In the remainder of this conclusion, we shall reflect on the implications of our findings for IOM’s ethos, obligations, and accountability.

It seems most relevant for IOM’s task expansion in the field of humanitarian emergency assistance that the organization is underpinned by an ‘esprit de corps’ in its staff that seems to prioritize hands-on assistance to people in need over broader normative or legal concerns. While arguably part of the organization’s DNA from the beginning,¹⁴¹ this practical helper ethos not only facilitates flexible crisis interventions in uncertain circumstances, but it is itself also reinforced in tune with the number of social precedents set by IOM in this area of activity. As suggested by the accounts of our interview partners, every new crisis intervention following the pattern provides arguments to rationalize (any other case of) humanitarian emergency assistance in terms of the organizational ethos: ‘because this is what we do’.

The small regard for mandate violations or legal ramifications at IOM hints at a conflict that its ethos may create with obligations and accountability. What our account of IOM’s near-exponential growth in the area of humanitarian emergency assistance has revealed in this regard, is that its expansions generally predate the adoption of any clear policies to reflect the pertinent normative principles. The Gulf intervention predated the adoption of any humanitarian policy principles, the Libya intervention predated the formalization of MCOF and MICIC¹⁴² policies, and the Ebola response predated the adoption of the HBMM framework. Indeed, on the long run, these steps lead to a normative regulation of IOM activities. In the moment of expansion, however, IOM acts in a normative void ruled by facticity only. In this void, it is hard to discern forms of accountability that go beyond answering to donor states. In fact, as our model suggested, IOM often works at the behest of particularly powerful donor states on the territory of weaker states, without any clear foundation in a multilaterally endorsed set of principles. While the organization is thus strongly accountable to a few states, the countries and societies most affected by IOM’s interventions lack the means to hold the organization to account. From a constitutionalist perspective, this is hard to reconcile with normative legitimacy requirements. However, legitimacy assessments need to consider both the input and output dimensions. To what extent IOM’s achievements in living up to its ethos balances these normative problems, is a question we can only allude to here.

8 How IOM Reshaped Its Obligations on Climate-Related Migration

Nina Hall

In 1990 the first Intergovernmental Panel on Climate Change (IPCC) report predicted that climate change could lead to ‘millions of people displaced by shoreline erosion, coastal flooding, and severe drought’.¹ Since then, non-governmental organizations, scientists, international organizations, and some states have echoed these concerns that climate change may drive millions from their homes. Since 2007 the International Organization for Migration (IOM) has played an important role in international policy discussions on the relationship between climate change and migration. They have pointed out that the links between climate change and migration are complex and not directly causal (i.e. not everyone affected by climate change will be forced to move). IOM has also noted that natural disasters will lead most people to be displaced internally, rather than across international borders.² IOM has emphasized that climate-related migration should not be seen as a ‘threat’ to states. Rather migration can be a positive adaptation strategy to climate change, and hence states should provide more pathways for international migration. IOM has also developed operational projects to assist people affected by climate change and outlined their positions through research, policy reports, and conferences.

Interestingly, IOM took on the issue of climate change and migration with no formal mandate for these activities. Initially there was a lack of support from member states at the Council. Here I examine how IOM expanded its obligations to include a broad category of climate and environmental migrants (both displaced and voluntary; internal and international movement). I ask: what drove IOM’s expansion, if not states? And what does this case tell us about who generates IOM’s obligations and how?

The chapter argues that IOM staff, especially the climate change focal point, lobbied member-states to make climate-related migration a policy priority.³ Most member states were initially reluctant, yet IOM found ways to work on climate - related migration, by seeking financing from the private sector, other international organizations, and a few supportive states. In other words, IOM staff ‘colluded’ with supportive stakeholders to expand its obligations to include environmental and climate change-related migration. IOM was able to do this as many member states do not closely monitor its operations at the Executive Council, but rather influence it through their bilateral funding. In addition, states accept, and even take advantage of the fact, that IOM is ‘projectized’ and hence has multiple obligations to its funders, that may not parallel the obligations set by the Executive Council. In short, this chapter outlines how IOM’s financing structure coupled with weak patrolling of IOM’s mandate by the Executive Council enabled it to expand into a new area.

The first section examines international relations theories of obligation in international organizations, focusing on how states control institutions through the executive body and funding decisions. It also notes that individual states and the secretariat of an international organization can work together to ‘collude’ and advance common interests. The second section examines IOM’s mandate and funding patterns. The third section traces how IOM worked on climate change and migration and convinced member states of its role in this area.⁴ The chapter draws on primary interviews conducted between 2009 and 2013 with IOM staff, donors, and other international organizations in Geneva, New York, and Kenya. I also examined speeches, reports, policy papers, and executive committee proceedings relating to the issue of climate change in IOM.

8.1 Obligation in International Organizations

Most International Relations (IR) scholars perceive international organizations as primarily holding political obligations to the member states that create, finance, and govern.⁵ Under this account of the ‘ideal type’ IO, states control international organizations by establishing a clear mandate, delegating specific tasks to the IO, and by controlling its funding.⁶ Scholars have typically focused on deliberations at an international institution’s executive board or council to identify the tasks and obligations states delegate to an international organization. An IO’s mandate tends to evolve over time as the executive body identifies and delegates new tasks or issues, and older ones may be deprioritized or subtracted. Most IR scholars conceive of a mandate as the tasks and obligations which are formally delegated to an IOs: not those which are informally decided or which are unilaterally decided upon by an individual state. Multilateralism is based on state parties collectively agreeing to common principles and priorities.

In addition, IR scholars examine how states control IOs through their funding.⁷ States choose how much funding to give an institution to fulfil its tasks, and if they do not give it enough the institution cannot deliver on its mandate. States, and other funders, can also choose whether to give states earmarked or non-earmarked funding.⁸ Earmarked funding is often a contractual agreement between one state and the IO to deliver a particular activity or focus on a particular region or topic. When international organizations have a high proportion of earmarked funding, their autonomy is often circumscribed. They are contracted to deliver certain tasks, which may or may not align with their mandate delegated by their executive body.⁹ Hence, scholars have pointed out that earmarked funding may be undermining multilateralism and strengthening individual donor interests.¹⁰ Earmarked funding weakens the position of developing country states where IOs operate as donor states have a greater ability to shape IO tasks, than most developing states, given they fund IOs.¹¹

Scholars have also noted that international organizations have autonomy and can influence states’ decisions on what issues they should tackle (i.e. their mandate), and how to fund them.¹² Moreover, individual member states may share preferences with IO staff and ‘collude’ to advance their goals, at the expense of other member states.¹³ Collusion can work both ways: IO Secretariats can search for, and work with, member states who share their interests.

In sum, to understand the political obligations of IOs most IR scholars would look to (1) the formal mandate, as set out in its constitution and other foundational documents whereby states collectively delegate certain tasks to the IO; (2) the various tasks it is financed to do (through earmarked and non-earmarked funding); and (3) whether IO staff shape member states’ preferences and/or ‘colludes’ with stakeholders supportive of its agenda.

Notably, the formally delegated mandate and funding are only two types of obligations an IO may have. Others include obligations to beneficiaries, particularly those in their care (e.g. migrants in IOM’s case); obligations to private funders (e.g. foundations or private companies); obligations to staff; obligations to other IOs (e.g. through the humanitarian cluster system); and obligations to the general public. In the next section, I examine IOM’s formal mandate and funding.

8.2 Obligations in IOM

8.2.1 Mandate

IOM’s mandate has evolved considerably over the past seventy years, as others in this edited volume describe. It was originally established in 1951 as an operational travel agency and was tasked with relocating displaced persons and migrants from post-War Europe to the Americas, Australia, and New Zealand.¹⁴ Its most significant mandate change occurred in 1989 when it took on a new Constitution, and a new name, to reflect its global ambit and broader scope. The new Constitution changes included a deletion of its focus on European migration; a new emphasis on a broader range of people requiring assistance; and the addition of new functions to its purpose. These functions included the provision of ‘migration services’ such as recruitment, language training, medical examination and reception, integration activities, and research on international migration.¹⁵

In fact, the 1989 Constitution mandated IOM to work with an exceptionally broad category of people, including refugees, displaced persons, and ‘other individuals in need of international migration services’.¹⁶ The ambiguity of the term ‘individuals in need of international migration services’ meant IOM had significant leeway to perform a wide range of tasks with different groups of people. Moreover, IOM was given no constitutionally articulated obligations for any specific people of concern, unlike UNHCR which has an obligation to protect refugees.¹⁷ One member state representative explained that IOM is ‘much more like a service provider. It has a Constitution but not a convention [such as the Refugee Convention] but the Constitution is just a founding document’.¹⁸ The agency requires a request from a member state or from the UN to carry out its activities in a particular country.¹⁹

8.2.2 Financing

Although IOM has a broad and ambiguous mandate, it is circumscribed by its funding model. IOM receives the majority of its funding (over ninety percent) through earmarked projects. In 2019 only one per cent of IOM’s revenue was unearmarked voluntary contributions beyond member states’ regular dues.²⁰ In addition, in 2019 only eleven donors made unearmarked contributions, and 68 per cent of all unearmarked funding came from just three donors (Sweden, the UK, and Denmark). IOM is concerned by this trend and has encouraged states to sign multi-year agreements and commit to voluntary unearmarked funding.²¹ In 2019 they released a report on unearmarked funding trends, for transparency and to encourage other donors to shift away from earmarking.²²

IOM is highly ‘projectized’ as many scholars have noted.²³ Funders contract IOM for specific tasks, and one scholar has even compared it to a company that produces only those goods that have been ordered in advance.²⁴ Ninety-seven per cent of IOM’s staff are in the field implementing projects which leaves a small staff of three per cent at headquarters working in strategic, administrative, and oversight roles.²⁵ This makes IOM distinct from many other UN agencies which have a larger proportion of non-earmarked funds, and more staff dedicated to policy-making at headquarters.

IOM is constrained by its projectized nature and earmarked funds. Donor interests play a ‘greater role’ in determining how funds are spent in IOM than in UNHCR.²⁶ The United Kingdom’s Department for International Development (DFID) noted that: ‘IOM has a market-oriented approach as a reactive project-based organization offering migration services in 12 broad areas of activities but is limited in its ability to direct resources strategically’.²⁷ IOM has a stronger tendency towards ‘bilateralization’ than UNHCR and many other UN-related organizations.²⁸

Many states influence IOM’s policies through bilateral financing, rather than decisions taken by the Executive Board or Council. Some IOM donors are more likely to target their influence through their funding decisions at the project level rather than by lobbying for changes at headquarters in policy.²⁹ Most states spend less time monitoring IOM at headquarters than they do for UNHCR, and some states manage their relationship with IOM from their capital, rather than from Geneva.³⁰ Furthermore, some states still perceive IOM as predominantly a ‘travel agency’ responsible for migration services and thus the lead Ministry working with IOM is the Ministry of Interior, Immigration or Justice, rather than Foreign Affairs.³¹ States are also less concerned with policy or mandate expansion at IOM council meetings than they are with UNHCR’s mandate.³² In fact, several states claimed that ‘member states don’t talk about mandate’ and that IOM is ‘more interested in filling a gap if they can find funding for it’.³³ Thus IOM has a high degree of operational autonomy: states may choose not to fund IOM’s expansion into a new area, but they are also unlikely to strongly oppose expansion if IOM finds funding elsewhere.

In sum, IOM’s 1989 Constitution gave it an exceptionally broad and ambiguous mandate for international migration services, which gives it significant autonomy. However, it is also circumscribed by its highly projectized funding model and reliance specifically on earmarked funds. The next sections explore how IOM has navigated these opportunities and constraints.

8.3 IOM and Climate Change (2000–2014)

By the late 1990s, IOM had expanded its activities to encompass a wide range of migrants, IDPs, refugees, and other displaced peoples. IOM had also framed a new policy problem of ‘ecological migration’, which they defined as ‘migration caused by processes of environmental degradation including worsening quality and accessibility of natural resources’.³⁴ In the 2000s IOM then engaged with climate change–related migration in three areas: (1) humanitarian response to natural disasters; (2) operational activities; and (3) policy and research expertise. IOM’s work on climate-related migration collectively covered the full range of people on the move: internally or internationally; voluntary or forced.

8.3.1 Natural Disasters and Humanitarian Operations

In the early 2000s, IOM became more engaged in natural disasters and humanitarian operations.³⁵ This work was not explicitly conceived as responding to climate-related displacement or migration, but rather assisting people affected by extreme weather, floods, droughts, and other natural disasters. There was an increasing need for humanitarian assistance following natural disasters. IOM for example sent teams to Gujarat post-earthquake (2001); Sri Lanka post-tsunami (2004); Haiti post-earthquake (2010); and Pakistan after the devastating floods of 2010 (IOM 2011: 101). In all of these cases, IOM was providing humanitarian assistance to IDPs.

IOM’s role in natural disasters was strengthened in the humanitarian reform process. The Inter-Agency Standing Committee (IASC), the main coordinating mechanism for humanitarian agencies, appointed IOM as cluster lead for camp coordination and camp management in natural disasters under the new coordination system. Dealing with natural disasters was a significant share of these humanitarian activities.

Importantly, it was other UN humanitarian agencies that gave IOM this new role, not member states. In 2006, the director general Brunson McKinlay explained IOM’s new cluster lead role to states at Council, as they had not given it a mandate to take on this work. He stated that:

IOM was now a major disaster relief agency, and the Inter-Agency Standing Committee (IASC) had recognized its role in the new cluster process and given it special standing with regard to natural disasters, i.e. emergencies that were not caused by war, oppression or human rights violations. Such disasters seemed to be increasing in number and duration, prompting IOM to focus more attention on them.³⁶

The official record of this Council meeting does not mention any reaction from member states to the DG’s claim. This is an interesting example of how international organizations can generate new obligations for other IOs.

States likely supported this work tacitly, even if they did not financially. One member state representative, for instance, explained that ‘IOM does a lot of important work that you don’t find in their mandate’.³⁷ Another member state explained that ‘in Geneva we see them as a migration agency’ but argued that IOM ‘don’t have to prove it [humanitarian operations] is part of their formal mandate’ as long as ‘they prove operationally sound’.³⁸ IOM sought to be active players in the humanitarian field, given the funding opportunities and need.

8.3.2 Attempted Mandate Change

In 2006 the organization appealed to states to fund a small meeting of academics, policy-makers, and experts on environmental migration. However, states did not fund the conference. One IOM official explained that developed countries claimed climate migration was, ‘not part of the mandate’. Member state representatives also confirmed that ‘there is a view amongst member states that climate change is not an issue that … IOM should be working on’.³⁹ Some states may have been reluctant for the organization to expand significantly into new areas. Although some member state representatives were unaware that IOM even worked in this area.⁴⁰

Instead, IOM turned to the United Nations Population Fund (UNFPA) for funding and co-organized a seminar in February 2007 in Bangkok on environment and migration.⁴¹ The meeting was held in the same month as the release of the fourth IPCC report which explicitly mentioned that climate change was likely to cause migration, making the issue ‘very hard to deny’ in the words of one IOM staffer.⁴² This staff member maintained that the IPCC report gave IOM the legitimacy and inspired its ‘willingness’ to work on the issue.⁴³

At the 2007 conference, IOM outlined a working definition of environmental migrants as: ‘persons or groups of persons who, for compelling reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their country or abroad’.⁴⁴ This intentionally broad definition, which covered some refugees, IDPs, and international migrants, became IOM’s official definition and gave the organization much room to maneuver.⁴⁵

Subsequently, IOM brought the issue of environmental migration to the attention of its governing Council. Yet again, states were reluctant to support this, and when given the choice they did not prioritize it as a topic for discussion.⁴⁶ The main reason, according to one IOM staff member, was that states had neither awareness nor interest in the issue.⁴⁷ Another IOM staff member explained that states asked ‘what does IOM have to do with it? Is this [environmental migration] a real issue?’⁴⁸ IOM needed to do more research and awareness-raising to make it a priority for states.⁴⁹ IOM staff were aware of these constraints, as an IOM staff member working on the issue explained: states would be ‘ready when they’re ready’.⁵⁰

In 2007 IOM convinced states to hold a three-hour discussion on migration, the environment and climate change at Council. Secretariat staff prepared a discussion note for this meeting, where they explained that environmental migration was a problem for those who moved, and the recipient country. IOM also maintained that: ‘Increased migration can contribute to further environmental degradation, but it can also be a coping mechanism and survival strategy for those who move’.⁵¹ In the paper, IOM recommended that countries of origin encourage ‘host states to admit environmental migrants, whether as part of labour migration schemes, resettlement programmes, or humanitarian assistance initiatives’.⁵² This paper set out IOM’s position: cross-border environmental migration should be facilitated within the available legal migration channels. It also outlined a role for IOM in enabling ‘more informed action and multi-stakeholder cooperation’.⁵³

The subsequent discussion during the 2007 Council meeting focused predominantly on the issue of environmental migration, rather than IOM’s role in addressing it. A panel of speakers, including representatives from China, Bangladesh, Greece, Cameroon, and Colombia, spoke about if and how environmental migration was a problem in their countries. Greece pledged it would create ‘special funds in cooperation with regional organizations to finance adaptation projects in Africa and small island developing states and cooperate with IOM on various projects’.⁵⁴ Greece was then also chairing the international Human Security Network and the Organization for the Security and Co-operation in Europe (OSCE), and prioritized the human security impacts of climate change.⁵⁵ No other member state pledged funding for IOM on climate and migration.⁵⁶

At this Council meeting, IOM did not outline a new role for itself in environmental migration but outlined principles for states to follow to address environment and migration. These included: effective environmental migration management; proactive policy and early action; and bilateral, regional, and multi-stakeholder cooperation.⁵⁷ There is no official record of states disagreeing or agreeing with these principles and IOM did not explicitly establish its role in these principles.⁵⁸ This suggests there was an acknowledgement of the issue but not explicit support for IOM’s engagement with environmental migration.⁵⁹

Subsequently, in 2008 IOM received the first explicit financial support to work on climate change and migration from a member state. Greece financed and co-hosted a half-day long conference on Climate Change, Environmental Degradation, and Migration: Addressing Vulnerabilities and Harnessing Opportunities. However Greek support was limited to 2008 and was largely due to the leadership of its representative Theodor Skylakakis.⁶⁰ The conference’s primary objective was to raise awareness of the human security challenge of climate change for the most vulnerable people.⁶¹ The Director General of IOM, Brunson McKinley, spoke at the conference and emphasized IOM’s expertise on climate and migration. IOM focused the conference on the human security dimensions of climate change mobility to counter the growing perception of migration as a threat.⁶² By bringing together over 180 people from 67 countries and 33 inter-governmental organizations, IOM became a known expert and broker in debates on climate change and migration. IOM ‘colluded’ with Greece to advance their climate agenda.

In sum, IOM lobbied member states to recognize the organization had a role in responding to environment and climate migration. They did this by initiating conferences, setting the agenda of council meetings, and working with sympathetic states. However, they did not initially gain a formalized mandate change as states did not agree that it was a priority. IOM understands its Constitution to be very permissive, as many activities can be classified as a ‘migration service’. This gives the organization a significant degree of autonomy to define its tasks and add new ones. However, IOM due to its heavy reliance on earmarked funding and projectized nature is also constrained by what member states will fund and is thus more responsive than most IOs to states’ preferences. What’s interesting in this case is IOM still sought collective agreement from its Executive Council on its priorities.

8.3.3 Secretariat Staff Led Expansion

In 2007–2008 IOM continued to work on climate-related migration, despite member states’ reluctance to fund or support it. IOM established a focal point for environmental migration within the Migration Policy, Research, and Communications Division to be assisted by two Migration Policy Officers. There were ten other staff across IOM working on climate change, environment, and natural disasters. The focal point, Philippe Boncour, ‘pushed’ the issue internally, highlighting to others that ‘this [issue] matters’.⁶³ The climate focal point remained, even during a period of major organizational reform in 2009.

Staff sought to establish the organization as an expert on climate change–induced migration, even without members’ explicit support. IOM’s DG Brunson McKinley stated for instance that ‘The International Organization for Migration has an obvious role in addressing the linkages between environmental degradation, climate change, and migration’.⁶⁴ They frequently published research reports and participated in events with governments and universities on the topic.⁶⁵

In 2008 IOM instigated a working group on climate change, displacement, and migration in the IASC.⁶⁶ The IASC was an important catalyst for new policy responses to climate-related migration, as states were not party to IASC discussions (nor did they actively monitor them). In October 2008 the working group submitted its first working paper which outlined IASC’s commitment to: ‘Take account of, and manage, the humanitarian consequences of climate change, including protecting those who may move as a result’ and to ‘launch a dialogue among Member States on how to fill existing and foreseeable legal, operational and capacity gaps associated with climate change and human mobility’.⁶⁷ This work subsequently became the basis for the Nansen Initiative, led by UNHCR and the Norwegian government.⁶⁸ Through the IASC IOM also pushed for migration to be accepted as an adaptation strategy under the UNFCCC text.⁶⁹ IOM did not want migration to be seen simply as a ‘failure of adaptation’.⁷⁰

IOM also established a new Climate Change, Environment and Migration Alliance (CCEMA) with UNEP, the United Nations University, Munich Re Foundation, and civil society partners. This alliance’s primary purpose was to develop policy approaches and research to investigate the links between climate change, environmental degradation, and migration. They wanted to support the most vulnerable countries with capacity-building and work with national governments on the degradation of natural resources. It was a broad and ambitious agenda ambit for a small alliance.⁷¹ It illustrates how IOs can also ‘collude’ with the private sector, academia, and civil society to advance their agenda.

In May 2009, IOM published its first policy paper explicitly on climate change and migration. The nine-page brief ‘Migration, Climate Change and the Environment’ outlined the ‘complex’ relationship between climate change and migration.⁷² It stated the ‘irrefutable evidence regarding climate change’ and expectation that global migration flows would ‘rise significantly over the next decades as a result of climate change’.⁷³ The paper emphasized that the agency had a ‘long established’ interest and expertise in the area through its publications and research and operational responses to natural disasters.⁷⁴ It outlined ambitious future goals to mainstream climate change and environment into migration policies; and to minimize forced displacement by ‘developing temporary and circular labour migration schemes with ‘environmentally-vulnerable countries’.⁷⁵ IOM positioned itself as the organization with the necessary expertise, and experience to address climate-related migration. IOM’s investment in developing climate and migration policy was significant given it has a small headquarters with little policy-making capacity.

8.3.4 Operational Expansion

Alongside this policy development, IOM sought to publicize its operational expertise on climate change and environmental migration. The Geneva headquarters invited 40 missions to send in descriptions of projects which related in some way to climate change and environment.⁷⁶ The resulting Compendium of IOM’s activities in Migration, Climate Change, and the Environment covered a broad range of activities in thirty countries.⁷⁷ The Compendium was a major enterprise due to the decentralized nature of the organization.⁷⁸ In the process of compiling the report, IOM staff in headquarters and the field became aware that a lot of work ‘has already been done on climate change and environment’.⁷⁹ The 300-page compendium illustrated IOM’s existing expertise on environment, climate change, and migration. In fact, it was so popular with participants at the Copenhagen summit that IOM ran out of copies to distribute.⁸⁰

However, the Compendium raised important questions on IOM’s role in environmental or climate change projects. It included activities where IOM had no core competency and only a very tenuous link to its migration services mandate, such as soil conservation and reforestation in Haiti or promoting youth employment in the environmental sector in Senegal.⁸¹ Moreover, the Compendium inadvertently highlighted the disconnect between the global policy debate and operations on the ground. IOM’s activities dealt with a range of migrants and non-migrants who did not always fit within the clear typologies of environmental migrants that IOM had developed. The Compendium highlighted a conceptual ambiguity and tension between IOM’s climate and migration operations and their policy statements.

Importantly, the existence of each project depended on what donors were prepared to fund. One member state for example visited IOM’s Haiti operations and visited IOM’s reforestation activities. They claimed these activities were not in IOM’s ‘core mandate’ and not a ‘core capacity of IOM’.⁸² They acknowledged that ‘mission creep’ was occurring but did not see this as a ‘dangerous development’ as they argued ‘someone needs to do it [reforestation]’.⁸³ Nevertheless, this state would not fund IOM’s reforestation or other natural disaster activities as they only financed ‘core’ mandated operations, in particular IOM’s assisted voluntary returns programme.⁸⁴ States often tolerate IOM’s ‘gap-filler’ or ‘catch-all’ interpretation of its mandate and role, hence it can take on any task that they can find funding for.

In addition to the Compendium, the Director General, William Lacy Swing, also frequently highlighted IOM’s operational and research expertise on climate change and migration. He highlighted IOM’s contribution in carrying out ‘relevant operations’ in over 40 countries, developing a research base, setting out the policy issues, and working in partnership with other agencies. In December Swing published an Op-Ed in the French newspaper, Le Monde, where he called on the international community to accept the ‘principle of mobility of people who must migrate, temporarily or permanently, in order to adapt or to survive climate change’.⁸⁵ The core message was that climate change–induced migration was a problem that the international community, needed to address.

In December 2009 Swing spoke at the UNFCCC alongside the UN High Commissioner for Refugees and other humanitarian leaders. He again emphasized IOM’s expertise in working with environmentally displaced persons:

Certainly since Hurricane Mitch in Central America in 1998, IOM, together with its humanitarian partners, has been there every time a major disaster struck and forced populations to flee for sheer survival. We know how to put up the tents in displacement camps, we know of the protection and assistance needs of displaced persons, we know how important it is to build back better.⁸⁶

He argued that migration should not be a strategy of ‘last resort’ but that the international community needed to respond sooner and see migration as an adaption strategy. Swing’s speeches sought to establish IOM as a legitimate actor in what they saw as a new field of climate change–related migration (both internal and external; voluntary and forced).

Throughout 2010 IOM continued to showcase its expertise on climate change and migration at a range of international events and through reports. For instance, two climate and migration experts recognized IOM as ‘Perhaps the most important international organization in this area [of environmental and climate migration]’ in a background paper written for the Global Forum on Migration and Development in Mexico.⁸⁷ Swing attended the 2010 UNFCCC summit and emphasized that: ‘Today’s reality is that climate change and environmental degradation are already triggering migration and displacement. In the past decade alone, for example, IOM undertook some 500 projects for a total of $280 million to assist victims of environmental degradation’.⁸⁸ He reiterated that migration was not a ‘worst case scenario’ but that it ‘should be part of our response to climate change’.⁸⁹ IOM continued to walk a fine line between advocating for migration as a useful adaptation to climate change; and providing operational solutions to what most states saw as the core problem: mass displacement caused by climate change.

8.3.5 Mandate Change

Alongside IOM’s expanded policy, research, and operational activities on climate and migration, they returned to Council for support. In November 2008, McKinley announced to states at the annual IOM Council meeting that climate change was an area of strategic priority. There is no officially recorded response from states on this. However, member states at this meeting expressed a general concern about mandate creep:

[Y]ears of expansion in terms of both membership and scope of programming may have resulted in a form of ‘mandate creep’ and the Organization was urged to consolidate its work in line with the 12 strategic activities….Particular disquiet was expressed about the possibility that IOM would stray from helping member states formulate migration policy and take on a normative role.⁹⁰

The Director General’s responded that there ‘should be no mandate creep’ and pledged that IOM would always provide compelling evidence of linkages between its work and the 12 strategic activities established in 2007.⁹¹ In addition, he stated that one of IOM’s five ‘broad strategic directions’ was to ‘engage cooperatively and thoughtfully in emerging fields such as…climate change’.⁹² IOM could claim it had tacit consent, given there was no vocal disagreement, for continuing research, conferences, and submissions on climate migration.⁹³ However, it is highly likely that the agency would have faced strong opposition from states if it had sought a protection role for climate-related displacement as UNHCR did.⁹⁴

Then at the next Council meeting in 2009, some states agreed that an area of ‘special importance’ to IOM was ‘climate change and the consequent displacement of migrants’.⁹⁵ At the 2010 Council states again discussed IOM’s work on climate change and migration. IOM noted in its 2010 strategic review that ‘emerging issues with implications for migration, such as climate change, continue to rise on the global agenda, it may also be in Member States’ strategic interest to ensure that IOM is tasked to specifically address such new challenges in the future’.⁹⁶ States then agreed that the International Dialogue on Migration (IDM) in 2011 should focus on climate change and migration. This was significant as the IDM is IOM’s top-level policy forum and engagement with states and is a sign of state support for IOM’s work on climate and migration.⁹⁷

In March 2011 IOM convened the IDM on Climate Change, Environmental Degradation and Migration and 221 people attended, including 151 member states representatives. The deputy director of IOM, Laura Thompson highlighted that in the past 10 years, IOM had received funding for more than 500 projects to respond to environmental migration. IOM’s aim was to bring the ‘topic to the table’ and then let states decide if and how they would pursue it according to one IOM representative.⁹⁸ In the official record of the meeting, IOM did not advocate for a particular outcome from the conference and did not stipulate what its role was in implementing the conference recommendations.⁹⁹ IOM sought to carve out a new role by directing states to this new issue.

In addition, IOM sought out financing for its climate-related migration work from sources other than member states. IOM had successfully lobbied for the inclusion of migration as an adaptation strategy in the final UNFCCC Agreement at Cancun.¹⁰⁰ This was applauded as a significant victory on the basis that IOM would have access to the adaptation fund. Subsequently, IOM did a ‘mapping’ of potential ‘use of the adaptation fund, the Least Developed Countries Fund, EU funds as well other bilateral, multilateral and private sources’.¹⁰¹ IOM could not directly access the adaptation fund and so established a partnership with the Asian Development Bank (ADB) to access the fund.¹⁰² The Director General held bilateral meetings with the ADB to develop this partnership and also explored funding for adaptation projects with the Swedish International Development Agency. IOM was proactive in sourcing financing. IOM worked around member-states to develop support and funding for its climate-related migration work.

By 2013 IOM’s policy agenda relating to natural disasters, climate change, and environmental migration was spread in several key policy debates.¹⁰³ Firstly, they sought to ensure that migration was recognized as a driver of risk in the Hyogo Framework for Action discussions on disaster risk reduction (DRR) and resilience and contribute to the UN system-wide action plan on DRR. Secondly, in the UNFCCC IOM lobbied for states to deliver on their promise to consider rehabilitation and compensation for migration under the ‘loss and damage’ domain. They also advocated for states to integrate migration as a positive adaptation strategy in National Adaptation Programmes of Action. Thirdly, in the humanitarian sphere, IOM collaborated with other agencies and pushed its ‘Migration Crisis Operational Framework’ to look at vulnerable mobile groups and participated in the Nansen Initiative’s steering committee (which focused on those displaced across international borders by natural disasters).

IOM developed research and policy expertise on climate-related migration, despite the small size and capacity of its headquarters, and projectized funding structure. They did this by looking for supportive partners and funders, such as humanitarian organizations, the UN University, Munich Re, and supportive states. Over time IOM staff convinced the Executive Council that climate-related migration issues fitted within their competencies, and states ultimately did not block this shift as they did in UNHCR’s case.

8.4 Conclusion

IOM staff developed a role for IOM on climate and migration and sought states’ collective support for this. They organized conferences, wrote policy papers, conducted research, and spoke at important international summits, including the UNFCCC. IOM lobbied for migration to be considered a form of adaptation, worked with other IASC members to develop a humanitarian response, and completed hundreds of projects related to the environment, climate, and migration worldwide. Over time, by showcasing their work and the importance of the issue, IOM convinced states at Council to tacitly support this work and hence acquired a formal mandate for climate-related migration (as opposed to ad-hoc projects for work on this issue).

IOM was able to pursue its climate change and migration work without explicit endorsement from Council in the 2000–2008 period because states’ generally accepted that IOM could be contracted for specific projects and purposes which did not neatly fit in the organization’s core delegated competencies. This gave IOM a degree of flexibility to find and work with sympathetic member states, and forge alliances with other international organizations, the private sector, and civil society. States were largely not concerned that IOM ‘colluded’ with others to pursue a new issue, even if the IOM Council did not actively delegate or prioritize climate-related migration.

More research is needed on the relationship between IOM’s obligations to its Council (i.e. its formalized mandate) and to its funders (who may not be IOM member states). In particular, scholars could look at how IOM acts when there is a direct conflict between private funders and IOM member states. In turn, member states could also clarify their expectations of IOM: should it be a ‘gap filler’, or stick to a set of core activities where it has expertise? If they see utility in IOM’s role as an organization with a ‘catch-all’ mandate that provides services wherever and whenever states want, then earmarking is not a major issue. If states want a more focused UN migration agency then they should reduce earmarked funding, or at least ensure that earmarked funding relates directly to the organization’s core competencies, and does not undermine the mandate set multilaterally by the Council.

What does this mean for people affected by climate change? IOM will continue to offer humanitarian assistance to IDPs affected by natural disasters and develop policies and research on the relationship between climate change and migration. IOM is not the appropriate place to elaborate new protection frameworks for those displaced across international borders by natural disasters, an issue that the new Biden administration explored.¹⁰⁴ However, IOM could play a stronger role in advocating for more legal pathways for migration, and emphasizing the positive role that safe and legal migration can play in adapting to climate change.

9 The International Organization for Migration as a Data Entrepreneur The Displacement Tracking Matrix and Data Responsibility Deficits

Anne Koch

9.1 Introduction

Migration and displacement data are a growth sector. Apart from governments hoping to better understand, forecast and control human mobility, a number of global processes, including the Global Compact on Migration and the UN High Level Panel on Internal Displacement, have called for more and better data on human mobility. Throughout its history, the work of the International Organization for Migration (IOM) has entailed collecting and processing large volumes of both personal and non-personal data on migrants and displaced populations. In line with growing demand by donors, this engagement in data collection and analysis has over the course of the past two decades shifted from a by-product of the organization’s operational work to a key service offered to governments and humanitarian actors, and has been complemented by an increasingly active role in data dissemination, communication and visualization. While this at times includes the collection and processing of biometric data – alongside the stated objective to strengthen its use in programming¹ – the vast majority of data currently collected by IOM is statistical information about the number and key characteristics of people moving, and the routes used.

The processing of data on migrants and displaced persons is often presented as a purely technical exercise aimed at improving the evidence base for subsequent projects and policy decisions. This chapter questions this largely apolitical view of (migration and displacement) data and instead considers the collection, analysis, application and communication of data an inherently normative process with far-reaching political implications. Through an in-depth analysis of the Displacement Tracking Matrix (DTM), IOM’s primary data collection mechanism, it recounts how the organization came to be the most widely used and authoritative source of data on internal displacement. Drawing on the concept of data responsibility, defined by OCHA as ‘the safe, ethical and effective management of personal and non-personal data for operational response’,² the chapter sets out the obligations arising from this role, and questions whether in its current set-up, the organization is fit to meet them.³

Data responsibility subsumes, but goes beyond the protection of, personal data. For example, data responsibility in humanitarian contexts may be understood to require (1) data protection, (2) legality and legitimacy (data processing in accordance with applicable laws, as well as with core values of the respective organization), (3) doing no harm, (4) respect for the rights of data subjects (including access to, rectification and erasure of data), (5) purpose specification, (6) data minimization (collection on the basis of necessity and proportionality) and (7) data quality (accuracy, validity, reliability and being up to date).⁴ The adequate protection of personal data constitutes a continuous challenge for any organization engaged in humanitarian work. IOM acknowledges the existing international obligations in this field and is engaged in ongoing efforts to meet them.⁵ Arguably more pressing, therefore, are the not fully acknowledged ethical obligations arising from the potentially sensitive nature of the vast amounts of non-personal but demographically identifiable data collected through the DTM, that is, data on issues such as displacement rates, returns and the number of people resident in particular camps that cannot be traced back to any individuals but are characterized by group-specific markers, for example, ethnic identity.⁶ Beyond this, there are concerns about the quality of DTM data, about potential negative implications of the DTM’s expansion beyond the field of humanitarian needs assessments and about its responsiveness to donor demands for data that serve as a post hoc legitimization of policy interventions.

Adopting a political economy lens that foregrounds IOM’s role as a participant in a dynamic and highly competitive market of data providers – that can be described as the humanitarian data economy – helps to make sense of these developments. While the DTM serves an important function in humanitarian needs assessments, it has also been shaped by the entrepreneurial spirit of IOM as a whole.⁷ That is, IOM ‘sells’ the DTM to its donors, adapting it where necessary, and uses the data generated through the DTM to justify other projects that IOM then pitches to donors for funding. The demand-driven and service-oriented nature of the DTM may create tensions with data responsibility principles, including purpose specification, data minimization and ‘do no harm’. Any benefits offered by the DTM in terms of providing rapid overviews of IDP situations and providing the basis for advocacy therefore need to be viewed in conjunction with the tool’s limitations.

Based on these observations, the chapter argues that in order to ensure that IOM’s data activities are in line with the notion of data responsibility and produce the kind of data required for both evidence-based and rights-oriented decision making, a clarification and strengthening of related standards does not suffice. What is needed instead is a fundamental change in institutional set-up and funding structure that allows IOM to only engage in responsible data collection, free from a profit-driven market logic.

The chapter is structured as follows: It starts out with a brief review of the literature that speaks to IOM’s engagement in migration and displacement data, and the obligations arising from it. Next, it sets out the idea of a market for migration and displacement data within which IOM competes with other data providers for financial resources and reputational gains. It then offers a thick description of the DTM’s history, institutional set-up and output, including a discussion of the quality of data produced, before zooming in on two DTM country operations (Haiti and Niger) in order to illustrate the value of certain types of mobility data have for political actors. In conclusion, it juxtaposes the risks associated with IOM’s near-monopolization of internal displacement data, as well as with the expansion of DTM operations into the field of cross-border mobility with IOM’s data protection standards, to highlight the organization’s shortcomings with regard to the responsible conduct of its data work. The focus on the DTM and the data produced through it means that the chapter’s analysis is necessarily selective, and does not cover all of IOM’s data-related activities. This focus is justified by the fact that questions of political and ethical accountability that the contributions to this edited volume speak to are particularly pertinent in situations of forced displacement that the DTM focuses on.

The argument developed in this chapter draws on publicly available information on IOM’s data-related activities, as well as on a series of interviews conducted between September 2020 and March 2021 with 20 current and former IOM officials, representatives of other international organizations and non-governmental organizations and investigative journalists who regularly engage with DTM data in their work. These interviews were structured around three core themes: The history, structure and working mechanisms of the DTM, the function and value of the DTM within IOM overall and the relationships and interactions of different actors engaged in the collection and analysis of data on internal displacement and irregular cross-border movements. In order to allow for a frank discussion of sensitive institutional concerns, all interviews were conducted anonymously.

9.2 From the ‘Datafication of Migration’ to the Need for Data Responsibility in Migration and Displacement

The increased importance of quantitative data and related evaluation systems like benchmarks and indicators has given rise to much debate across all sectors.⁸ Migration and displacement are no exceptions. In the context of this chapter, three different (albeit interlinked) strands of literature are of particular relevance. The first discusses the ‘marketization of migration statistics’⁹ and its consequences; the second delves into the risks associated with the increasingly data-driven nature of humanitarian work; and the third concerns developments regarding data protection by international organizations broadly, and humanitarian actors more narrowly. This scholarship does not engage with IOM in any detail, yet the concerns raised are relevant to the organization’s work, in particular in light of the expanding nature of DTM data collection.

First, a growing literature starts from the assumption that ‘the accumulation of data is a core component of political economy in the twenty-first century’, and that this frequently takes the form of data extraction, ‘with little regard for consent and compensation’.¹⁰ This speaks directly to the notion of a ‘migration knowledge hype’,¹¹ and to Taylor and Meissner’s observation of an increasing marketization of migration statistics. One of their central insights is the co-constitutive relationship between the perception of migration as a threat, and the demand for more data on human mobility: ‘an existing policy vision creates a market for technologies which then shape the world to fit that policy vision and make its enforcement possible. This dynamic is particular to the involvement of commercial actors: where policy interacts with the data analytics market, a field is created for firms to compete for contracts based on how closely they can adapt and develop analytical techniques to policy objectives.’¹² The market dynamics described here arguably do not only apply to corporations, but also to international organizations like IOM that due to its projectized structure is constantly competing for funding. While the specific incentives to engage in this competition differ between IOs and commercial enterprises (e.g. IO staff are not paid bonuses based on performance), professional advancement is typically linked to being able to ‘sell’ projects to donors, which is facilitated through readily available data.

Second, the increasing pervasiveness of quantitative data in humanitarian work has given rise to a body of literature that – in response to an ‘avalanche of ‘tech-optimistic’ scholarly work, premised on the belief that adding technology will change things [in the humanitarian sector] for the better’¹³ – focuses on the limitations and the risks associated with this development.¹⁴ More specifically, contributors call into question the hoped-for benefits of the ‘data revolution’ for the humanitarian field, given the mismatch between the vast amount of data collected and the limited capacities for analysing it;¹⁵ point out the risk of big data and artificial intelligence (AI)-driven humanitarian work reproducing existing power asymmetries and relationships of dependency;¹⁶ and highlight privacy and data protection concerns related to the collection of sensitive data.¹⁷ Again, IOM – not neatly fitting into the humanitarian category – is not specifically discussed, yet due to the primary humanitarian purpose of much of the data produced by the DTM, these insights are of direct relevance to the organization’s work.

Third, and most directly linked to the themes of this volume, there is a nascent literature on the legal and ethical obligations linked to the data-related activities of international organizations. Kuner discusses to what extent the EU’s 2018 General Data Protection Regulation (GDPR), which sets new standards of data privacy and security, applies to international organizations engaged in the processing of personal data.¹⁸ While Kuner comes to the conclusion that the legal situation is ‘murky’, and that ‘there is considerable uncertainty about the extent to which IOs should implement the GDPR’, he argues that European donors could prod IOs into compliance by making it a funding prerequisite. Against this background, he recommends that IOs use the GDPR as a ‘source of inspiration’ to put into place adequate internal data protection principles.¹⁹ It is worth noting, however, that the GDPR only covers personal data. Over the past five years, there has been an important conceptual shift in discussions about humanitarian actors’ data protection responsibilities, broadening it beyond the ‘personally identifiable information’ that has traditionally been of central concern to include ‘demographically identifiable information’.²⁰ The notion that data protection obligations are not limited to individuals but also refer to vulnerable groups leads to the conclusion that humanitarian data collection and utilization ‘needs to follow the principle of proportionality and consider benefits and harms beyond individual interests’.²¹ These developments are of direct relevance to IOM – indeed, some of the related warnings regarding the risks entailed by ‘organizations tracking time and place-specific movement/status data of large demographically delineated groups’²² sound as though they were formulated with the DTM in mind.

These concerns have prompted some limited reforms in the humanitarian sector, with the development of various guidance on data responsibility. One key document that has become a common point of reference is the 510 Data Responsibility Policy initiated by the Netherlands Red Cross Society. It sets out the key argument that data responsibility encompasses ethical principles that go beyond compliance with GDPR data protection requirements, especially in terms of ‘doing no harm and respecting each individual’s fundamental right to privacy and to control the use and processing of his or her own personal data, bearing in mind the consequences that the use of data could have on vulnerable people around the world and taking measures to avoid putting individuals or communities at risk’.²³ The debate about data responsibility in humanitarian settings is ongoing in various fora, some of which IOM is actively involved in. However, these conversations do not generally cover data-related work carried out outside the context of humanitarian emergencies.

9.3 IOM and the Market for Migration and Displacement Data

As noted above, there is immense international demand for data on migration and displacement that is linked to broader developments in the development and humanitarian sectors. The call in the 2013 UN High Level Panel on the Post-2015 Development Agenda for a ‘data revolution’, and a subsequent report dedicated to mobilizing this data revolution for sustainable development are indicative of the increasing prioritization of data in development programming.²⁴ The equivalent for the humanitarian sector came with the international community’s commitment to improve the evidence base of humanitarian response operations under the 2016 Grand Bargain.²⁵

These developments, and the hopes for greater efficiency and cost effectiveness motivating them, are reflected in a number of recent global processes that have increased the demand for data on human mobility more specifically. The global indicator framework developed to measure progress towards the Sustainable Development Goals (SDGs) is preceded by a passage calling for the disaggregation of SDG indicators, where relevant, by migratory status.²⁶ Remarkably, the first of the 23 core objectives of the Global Compact for Safe, Orderly and Regular Migration (GCM) contains the commitment to ‘strengthen the global evidence base on international migration by improving and investing in the collection, analysis and dissemination of accurate, reliable, comparable data’.²⁷ In the Global Compact for Refugees (GCR), data and evidence feature as one of three ‘key tools for effecting burden- and responsibility-sharing’.²⁸ Most recently, the UN High Level Panel on Internal Displacement highlighted the relevance of more and better data on internal displacement, recommending inter alia that international donors should increase their funding efforts in this field.²⁹

Given that the majority of large donor countries have supported the development of these frameworks and are committed to implementing them, the last few years have seen a significant increase in the volume of funds available for the collection and analysis of migration and displacement-related data. This has had significant effects on the institutional landscape, visible both in the expansion of existing data initiatives by international actors and in the emergence of new ones.

IOM is a case in point. In line with the breadth of its overall portfolio, the organization collects various types of migration-related data, for example, related to pre-departure health assessments, interlinkages between environmental change and human mobility, and migrant deaths and disappearances. The organization aims to be ‘a primary reference point for migration information, research, best practices, data collection, compatibility and sharing’.³⁰ Its Global Migration Data Analysis Centre (GMDAC) in Berlin was founded in 2015, replacing the organization’s former Geneva-based Migration Research Division.³¹ It has the threefold aim to ‘(1) Strengthen the role of data in global migration governance […], (2) Support IOM Member States’ capacities to collect, analyse and use migration data, [and] (3) Promote evidence-based policies by compiling, sharing and analysing IOM and other sources of data’.³² The centre’s ongoing expansion – from a modest start with less than four staff members in 2015 to 45 in May 2022 – is evidence of its success. While GMDAC – with its ambition to serve as a one-stop-shop for all available migration data through its Migration Data Portal – serves as an institutional focal point for IOM’s engagement in data analysis and communication, IOM’s primary dedicated data-collection mechanism, the Displacement Tracking Matrix (DTM), has so far been institutionally separate. While both GMDAC and the DTM are crucial to IOM’s efforts to secure a leadership role in the field of migration data,³³ it is arguably the DTM that creates considerable revenue, both in and of itself, and in terms of providing the evidence base for further interventions that IOM may propose to donors.³⁴

The overall increase of interest in migration and displacement data, however, goes hand in hand with increased competition, especially in the humanitarian field, and where the humanitarian and development sectors meet. Dedicated data collection initiatives whose work overlaps with that of the DTM include REACH, the Mixed Migration Centre (MMC) and the Joint IDP Profiling Service (JIPS). REACH, a humanitarian data collection initiative, collects data on crisis-affected populations (many of whom are internally displaced persons (IDPs), creating a significant overlap with the DTM) and plays a crucial role in informing UNHCR’s crisis response. Established in 2010, it has seen a massive expansion over the course of the last five to seven years. The Mixed Migration Centre (MMC), established by the Danish Refugee Council in 2018, is a data collection initiative aimed at improving the evidence base on cross-border movements by a diverse set of people including refugees, victims of trafficking and individuals primarily searching for opportunities not available to them in their places of origin. The MMC conducts thousands of in-depth interviews with people on the move along key migration routes in seven distinct regions, responding to increased donor interest in understanding migrants’ routes and aspirations, especially on their way towards Europe. The MMC has grown considerably over the course of the last three years, its data feeding into the work of various UN agencies like UNHCR, UNODC and UNFPA. Another relevant actor engaged in data collection on internal displacement, JIPS, is an inter-agency body founded in 2009 that is administered jointly by UNHCR and the Danish Refugee Council. It conducts targeted profiling exercises with IDPs and host communities in individual localities to inform the development of durable solutions. While the data collection activities undertaken by these three actors do not compare to the DTM in size and coverage, all three offer valued and distinct services to actors engaged in displacement scenarios.

Beyond these individual organizations, new collaborative initiatives have sprung up in response to donor demand for improved data interoperability and joint assessments. The World Bank-UNHCR Joint Data Center on Forced Displacement (JDC) and OCHA’s Centre for Humanitarian Data are the most prominent examples. The work of all of these actors overlaps, intersects and feeds into each other. The fierce sense of competition that runs through these interactions is conveyed by remarks by IOM staff members that some of their smaller NGO competitors are ‘claiming more and more space’, and that management at JDC ‘are loading their guns, hiring all the right people’.³⁵ In 2020, IOM published a migration data strategy and in 2021 an internal displacement data strategy. Both of these documents acknowledge the broad array of actors involved, while at the same time claiming a leadership role for IOM.³⁶

9.4 The Displacement Tracking Matrix

The DTM – variously described by IOM itself as a data-collection mechanism,³⁷ a monitoring tool,³⁸ an information management tool³⁹ and a system enabling the development and maintenance of baseline information on displaced populations⁴⁰ – is a highly decentralized system for tracking and monitoring internal displacement and (frequently irregular) cross-border mobility. The DTM toolbox consists of four key components – mobility tracking, flow monitoring, surveys and registration – that can be flexibly combined to fit a given country context. The respective role of these four components can be broadly characterized as follows: Mobility tracking operations follow a distinct group of persons, capturing basic demographic characteristics as well as vulnerabilities and priority needs, tracking their movements. Flow monitoring, in contrast, focuses on fixed geographical locations and aims to capture data on the various mobile populations crossing that point. Using direct observation by DTM staff and key informant interviews, both initially only collect non-personal data, but can be further substantiated through surveys that may contain personal data. Registration – which entails the collection of personal data – is a service largely distinct from the other three components and is only undertaken at the explicit request of governments.

In its public presentation of the DTM, IOM emphasizes the tool’s modular set-up, and the fact that it can be adapted to widely varying circumstances, including ‘conflict, natural disaster, and complex emergency settings, from small to large cases of displacement’.⁴¹ Its target population is broad, encompassing conflict- and disaster-induced IDPs, returnees and migrants. The DTM expansion over the past decade has been rapid: While in 2010 it was deployed in ten countries, this had grown to over 40 in 2016⁴² and to 88 in 2020.⁴³ By 2020, these operations enlisted the help of approximately 6,600 staff around the globe, most of these local data collectors.⁴⁴ The DTM written output increased at pace, with a steady year-by-year increase – from one report in 2010 to 2209 in 2020. The DTM website today is a vast repository of data from past operations, currently storing more than 9100 individual documents in various formats – among these, dashboards, situation reports and maps.⁴⁵

9.4.1 Origins and Evolution

How did this vast data collection exercise come about? Despite IOM’s long-standing interest in IDP profiling, its Iraq operation in the early 2000s is widely considered the starting point of a methodology for rapid assessments of the movements and needs of IDPs carried out by field-monitoring teams – the initial core business of the DTM that now features under the label ‘mobility tracking’.⁴⁶ With the establishment of the humanitarian cluster approach in 2005 that accorded IOM the co-lead of the Global Camp Coordination and Camp Management (CCCM) cluster, IOM became increasingly engaged in IDP registrations in camp settings – a second core module of the contemporary DTM.⁴⁷ Data collection on IDPs in camp settings constituted a key element of IOM’s activities in Haiti following the 2010 earthquake, and it was in this context that the umbrella term ‘Displacement Tracking Matrix’ for displacement-related data collection exercises in various country contexts was coined.⁴⁸

‘Flow monitoring’ was initially developed to capture distinct displacement situations, such as the movements triggered by the military coup d’état in Mali in 2012,⁴⁹ the 2014–2016 Ebola epidemic in West Africa,⁵⁰ and those from the Dominican Republic into Haiti following legislative changes that threatened Haitian immigrants and Dominicans of Haitian descent with deportation.⁵¹ However, its usage significantly changed in the context of the so-called European refugee crisis, which led to a sudden and urgent demand for data on population movements towards the European Union (EU): The number of DTM reports featuring a flow monitoring component jumped from 25 in 2015 (19 of which were dedicated to the situation in Haiti) to 182 in 2016, the vast majority of which reported on movements towards EU territory.⁵² In this sense, flow monitoring has over time become almost synonymous with the expansion of DTM operations from internal to cross-border movements, and from displacement scenarios to broader migratory dynamics – reflecting, in the words of an IOM staff member, an ‘immense thirst for flow data on the part of donors’.⁵³ Surveys were added as a fourth component in 2013, initially to gain a better understanding of return intentions among displaced communities in Mali and the Central African Republic.

Over time, various sub-categories were added to the four key components, with more recent additions including biometric registration, community perception surveys and village assessments as a type of mobility tracking. In general, surveys are aimed at complementing baseline assessments through data on the socio-economic profiles of migrants, their means of travel and their intentions and expectations. Despite its displacement-focused name, the DTM is now deployed in a vast variety of mobility settings, and in individual countries records all types of movements, including in the context of tourism, family visits and seasonal nomadic mobility.⁵⁴ The operation launched in The Gambia in 2021 is an example of the DTM being deployed with the broadly stated aim to improve migration governance.⁵⁵

This brief reconstruction of the DTM’s evolution over time indicates piecemeal and demand-driven growth. Current and former IOM staff members complain about constant ad hoc expansions (‘running after money and fashions’) at the expense of a consolidation and standardization of data collection methods, and about sudden shifts in priorities. A recent example of this is the mapping of Covid-19-related travel restrictions around the world that the DTM management initiated in March 2020.⁵⁶ The resource-intensive daily updates this required reportedly led to a postponement of a planned revision of the flow monitoring methodology.⁵⁷ Meanwhile, the steady stream of funding from donors attests to the business-savvy character of the DTM management.

9.4.2 Institutional Set-Up and Funding

Despite its primary identity as a ‘tool’, the DTM can also be considered an institutional entity in its own right. Its organizational home is IOM’s Department of Operations and Emergencies, where a core ‘global DTM support team’ comprised of – at the time of writing – 45 technical experts across eight locations (Geneva, London, Bangkok, Nairobi, Dakar, Cairo, Vienna and The Hague) is engaged in data management and operations support.⁵⁸ Its overall staff structure in 2019 included 438 technical staff and 6,170 data collectors.⁵⁹ However, much of the DTM’s institutional set-up remains opaque: There is no publicly available organizational chart, despite the fact that DTM vacancy notices regularly refer to up to twelve organizational subunits.⁶⁰ The large share of internships among the DTM positions advertised online support the account that the DTM core team is thinly staffed and relies heavily on support from interns for substantive input.⁶¹ Against this background – and in line with the overall decentralized structure of IOM – DTM country coordinators enjoy a large degree of autonomy. At the same time, DTM field positions are hard to fill with qualified statisticians and data experts. As a result, the quality of data differs vastly between DTM country operations.⁶² Emphasizing this point, former IOM staff noted that ‘DTM is unrecognizable from one country context to the next’ and can be considered ‘more of a brand than a cohesive methodology’.⁶³

While the DTM is considered a ‘money-making machine’⁶⁴ within IOM, it is difficult to gain an understanding of the volume of funding the DTM attracts. IOM’s annual financial reports typically contain a number of DTM-specific entries, yet due to variations in the terminology used to report on these activities, no clear picture emerges of the amounts and sources of money involved.⁶⁵ The vast majority of DTM country operations seem to be subsumed under more overarching categories like ‘strengthening service coordination’ or ‘supporting a coordinated response’. Looking into individual country appeals affords slightly more insights: The 2018 and 2019 IOM’s crisis funding appeals for Iraq, for instance, calculated a need of three million USD per year for the implementation of the DTM across the entire country. This amounted to a share of 11.2% of the entire appeal for the year 2018, and 7.2% for the year 2019.⁶⁶ The IOM flash appeal following the August 2021 earthquake in Haiti calculated that one million USD was required for the DTM operation, amounting to 6.7% of the entire funding needed. Even though these appeals are not always fully met, it is clear that the DTM is a major source of revenue for IOM, particularly as DTM data are used to propose and justify further IOM projects.

DTM funding sources differ depending on the type of operation. DTM operations that are part of larger humanitarian interventions like those in Sudan, South Sudan and Libya, tend to be financed through a broad range of mechanisms, including UN funding mechanisms like Central Emergency Response Fund (CERF) or the UN Peacebuildig Fund, as well as by large bilateral and multilateral donors, for example, through USAID, German Humanitarian Assistance or the EU’s humanitarian office ECHO.⁶⁷ DTM operations that are primarily aimed at collecting data on migratory movements, often towards the European Union, tend to attract funds from actors fearing the arrival of migrants on their own territory: DTM Libya is financed through the EU Trust Fund for Africa (EUTF),⁶⁸ DTM Niger has since its inception in early 2016 been funded by the foreign ministries of the UK, Germany and Denmark as well as through the EUTF,⁶⁹ and the donors of the DTM operation launched in March 2021 aimed at collecting data on ‘migrant presence outside temporary reception centres in Bosnia and Herzegovina’ are the EU, Italy and the Czech Republic.⁷⁰

9.4.3 Data Collection and Data Quality

The on-the-ground data collection undertaken in the context of mobility tracking and flow monitoring – which together make up the vast majority of DTM operations and produce large amounts of non-personal yet demographically identifiable data – has at its core one key method: key informant interviews.⁷¹ While IOM is increasingly making forays into the use of advanced data collection technologies like high-resolution satellite imagery,⁷² the ‘coca cola recipe’ of DTM operations is the rapid roll-out of a large network of key informants even in remote locations in the DRC and Northern Nigeria, and in acute crisis settings like Libya and Syria.⁷³ Key informants – 166,379 of whom were involved in DTM operations in 2019 alone⁷⁴ – are typically community leaders, religious leaders, local government officials, humanitarian aid workers or others who have a good insight into mobility patterns or displacement situations in a particular local setting. Local data collectors, so-called ‘enumerators’, are recruited and trained in data collection methodologies relevant to the specific context. Enumerators then conduct regular rounds of structured interviews – on location or via telephone – with key informants, electronically recording information, for example on the number, location, demographic make-up, humanitarian situation and needs of displaced persons in humanitarian settings.⁷⁵ The DTM methodology then foresees a stage of validation, for example through assessing the consistency between the information provided by different key informants.⁷⁶

While the use of local enumerators conducting interviews with key informants is popular among many international aid organizations,⁷⁷ IOM has a competitive advantage in terms of rolling out large data collection exercises within a short period of time due to its continuous field presence, existing networks and physical equipment (e.g. adequate vehicles necessary to reach remote locations) in most regions of the world. However, the key informant methodology comes with clear limitations: data collected in this manner is by definition proximate, and there are many concerns about data accuracy. Typical problems include ill-defined units of observation that may lead to double-counting, such as when key informants are assigned to adjacent neighbourhoods and may record several times the people moving between them.⁷⁸ In addition, interview respondents reported a lack of verification mechanisms, especially in settings where information is gathered remotely and cannot be validated through direct observation by trained enumerators (e.g. during times when the security situation in Libya prohibited access),⁷⁹ and instances of long-standing migrant communities being counted as recent displacements due to a lack of historical awareness within data teams working in certain country contexts (e.g. Palestinians and Syrians in Lebanon and Rohingyas in Bangladesh).⁸⁰

Once the data is collected, it can be compromised by political imperatives – in many countries, DTM data has to be cleared at various levels of the respective host government’s hierarchy before it is publicly released, increasing the risk for distortion.⁸¹ Such an incident allegedly occurred in Nigeria, where the DTM team allegedly bowed to pressure from the Nigerian government that wanted to show progress in returns, and changed its methodology so as to record temporary returns between multiple displacements as returns ‘proper’.⁸² In other country contexts, DTM data largely amounts to a compilation of government figures with little or no verification.⁸³

Over and above any shortcomings in individual DTM country operations, there is widespread concern – both within and outside IOM – over a lack of technical expertise within the DTM management, and the persistent prioritization of quick results over investments in standardization that would be necessary for improved data quality.⁸⁴ This manifests in inconsistent methodologies for data collection, analysis and validation between countries.⁸⁵

Regardless of these various limitations, the data presented in DTM reports has a level of specificity that belies the fact that it is based on estimates: a figure like the 662,248 migrants recorded by a flow monitoring exercise in Libya in March 2018 gives the impression of being based on an exact head-count of individuals in particular contexts, despite the fact that the underlying data collection relies on key informant interviews.⁸⁶ This speaks to insights from the literature on the politics of expertise that organizations like IOM are first and foremost concerned with increasing their legitimacy through a performance of epistemic authority,⁸⁷ in order to increase their ‘claim to resources or jurisdiction over particular policy areas’.⁸⁸

9.4.4 The DTM’s Core Humanitarian Function

The various shortcomings of data produced through the DTM (some of which are acknowledged in the DTM methodological framework)⁸⁹ do not render the instrument useless or irrelevant. All migration and displacement data collection efforts face limitations, and the majority of interview respondents acknowledged the DTM’s value in terms of producing baseline data on displacements for humanitarian planning and programming.⁹⁰ By making visible the existence and needs of IDPs and other populations, the DTM fulfills crucial fundraising and advocacy functions, serving both IOM specifically and a broader range of actors involved in responding to human mobility. This plays out on two different levels.

On the one hand, when it is used in humanitarian settings, the DTM typically plays a crucial role during the early stages of a humanitarian response by providing a rapid operational overview as well as a displacement ‘planning figure’ that serves as the basis for subsequent funding appeals by other members of the humanitarian system.⁹¹ In 2020, DTM data on internal displacement was used in 80% of all humanitarian needs overviews and humanitarian response plans.⁹² However, despite its widespread use, the DTM’s relation to the wider humanitarian sector remains ill-defined. DTM operations in humanitarian settings are typically carried out under the umbrella of the IASC cluster system, yet there is no formal basis for this, especially in conflict settings. And while IOM has developed protection risk indicators (e.g. related to gender-based risks and unaccompanied minors) that can be integrated into DTM assessments,⁹³ other humanitarian actors remain concerned about IOM’s lack of a protection mandate. More specifically, interview respondents acknowledged attempts to improve DTM integration into wider coordination structures, but noted that this has so far been limited to ‘gentlemen’s agreements’, with insufficient impact on the protection response.⁹⁴ A related concern is that project-based DTM operations may create parallel structures on the ground that come to an end when the respective projectized funding ends rather than when the humanitarian community deems appropriate.

On the other hand, the DTM is one of the main sources of the global IDP statistics compiled by the Internal Displacement Monitoring Centre (IDMC)⁹⁵ that in turn feed into the UNHCR’s annual Global Trends Report. Both can be considered cornerstones for advocacy efforts on behalf of IDPs. Beyond these institutionalized distribution channels (that entail external checks on the quality of DTM data, e.g., in the form of triangulation with other sources used by IDMC),⁹⁶ both individual DTM country data sets and aggregate figures are widely used and reproduced by governments, human rights NGOs, think tanks and academics alike, and are in these contexts typically presented as authoritative, without further data quality checks. In sum, the DTM creates visibility for IDPs both in distinct humanitarian crises and international discourse on displacement.

Part of the DTM branding is the claim that by making IDPs visible and highlighting gaps in assistance, it contributes to accountability in humanitarian response.⁹⁷ The extent to which this accountability function is actively pursued in DTM field operations is difficult to assess. Either way, the significance of the DTM for IOM’s standing is immense: By positioning itself as the go-to authority for data on internal displacement, IOM has secured a place in the humanitarian system that is largely uncontested.

9.5 Showing Success through Numbers: The Political Functions of DTM Data

Beyond the core functions of humanitarian needs assessments and advocacy noted above, there are a number of additional functions that make DTM data politically valuable to donors. First, due to the prominent place that the recent global processes outlined above have accorded to data on migration and displacement, funding DTM operations can at times have a performative dimension: Through this, donors can showcase their efforts to meet the commitments agreed upon at the 2016 WHS, and to work towards more evidence-based policy-making – at a far lower political cost than, for example, increasing the number of resettlement places or opening up pathways for legal migration. Beyond this overall incentive to provide funding for data-related activities, a closer look at individual DTM operations reveals another purpose – a post hoc legitimization of policy interventions that, in the words of a former IOM staff member, can be characterized as ‘showing success through numbers’.⁹⁸

9.5.1 DTM ‘Mobility Tracking’ in Haiti, 2010–2014

The Haiti earthquake of January 2010 forced around 1.5 million individuals to leave their homes, leading to a massive internal displacement crisis in the country.⁹⁹ In the wake of this disaster, thousands of official and informal IDP camps sprung up around the country’s capital Port-au-Prince. The roll-out of the DTM across these various settlements followed swiftly, the operation being largely limited to the collection of data on the number and the location of the displaced, as well as a basic assessment of the availability of water, toilets and waste management.¹⁰⁰ At the same time, the overall humanitarian response to the Haiti earthquake was widely criticized for its inefficiency. Two years on, less than half of the funds pledged for reconstruction had been disbursed.¹⁰¹

In light of this apparent dysfunctionality, both the Haitian government and key donors like the US were eager to showcase positive developments. Bradley and Sherwood discuss how in this context, ‘the concept of internal displacement became synonymous with residency in camps, and the resolution of the displacement crisis with camp closures, rather than with the more complex challenge of supporting durable solutions.’¹⁰² Against this backdrop, the purportedly apolitical data collection efforts of the DTM soon became hugely politicized. DTM Haiti reports, setting out the results of different rounds of mobility tracking from 2010–2014 – that ultimately amounted to monitoring changes in IDP camp populations – share one common feature: they feature graphs visualizing the decreasing number of camp residents on the front page.¹⁰³ Former IOM staff involved in the Haiti response recount a fixation on numbers, on the part of both the Haitian and the US government, with IOM’s country office receiving daily visits from the US embassy to have the latest numbers of returns and camp closures reported.¹⁰⁴ Irrespective of the subsequent contextualization of DTM data (in these same reports, but also by external actors)¹⁰⁵ pointing to the reasons people chose to leave the camps (among these the fear of contracting cholera in crowded camp settings, forced evictions and other safety concerns), and to the lack of safe housing in the areas people returned to, the primary message conveyed visually was one of progress towards ending displacement.

In one instance, three large settlements – Canaan, Jerusalem and Onaville – were taken off the list of IDP sites at the request of the Haitian government, leading to a sudden drop in IDP numbers from 279,000 in June 2013 to 172,000 in September 2013. This decision was justified with the assessment that these settlements showed key characteristics of permanent settlements.¹⁰⁶ Amnesty International noted that ‘While this was true, the exclusion of these areas from the DTM had the consequence of leaving thousands of IDPs outside the scope of intervention by humanitarian organizations.’¹⁰⁷ In addition, there was evidence of forced evictions being carried out by state authorities in December 2013, indicating that contrary to the recommendations of the Special Rapporteur on the Human Rights of IDPs, conflicts over land tenure had not been resolved before the recategorization of these camps as regular neighbourhoods.¹⁰⁸ The Haitian example illustrates the DTM’s central role in constructing a narrative of progress that is disconnected from a meaningful understanding of durable solutions to internal displacement,¹⁰⁹ yet has real consequences for those affected in terms of access to support.

9.5.2 DTM ‘Flow Monitoring’ in West and Central Africa Since 2016

The so-called European refugee crisis of 2015 and 2016 not only led to the introduction of DTM flow monitoring along the so-called ‘Balkan route’ and at the EU’s external borders,¹¹⁰ but also to a significant expansion of DTM operations in West and Central Africa. In 2016, flow monitoring points were set up in Mali and Niger ‘to better understand migration movements to Algeria and Libya on the Central Mediterranean Route’, and by 2018 these data collection exercises had expanded to Burkina Faso, Chad, Guinea, Nigeria and Senegal.¹¹¹ This example shows how IOM has succeeded in transforming a tool developed largely for use in IDP situations to make it applicable to a wider range of contexts. While at the outset, DTM data collection exercises in West and Central Africa were limited to recording the mere number of border crossings (the main source of information often being local officials), this was later complemented by surveys aimed at gaining additional information about the routes and means of transportation used. Interview respondents noted that the explicit focus on movements towards Europe (‘the system was pretty much designed to show that people move North’),¹¹² and the ‘gold rush’ mentality that came with the readily available funding from the EU Emergency Trust Fund for Africa (EUTF), at times led to an indiscriminate counting of movements as crisis-driven, irrespective of centuries-old mobility patterns in the region.¹¹³

Similar to the Haitian example, DTM data in this context was highly politicized. IOM staff recount a ‘massive thirst for flow data’ that was not subsequently used in any meaningful way¹¹⁴ – echoing Read et al.’s observation that ‘the enthusiasm for […] data is vastly outstripped by the capacity to meaningfully analyse it’.¹¹⁵ In addition, IOM publications suggest that one of the primary purposes of these data collection exercises was to better target IOM information campaigns about the risks of migration, with the aim of informing protection and assistance interventions taking second place.¹¹⁶ At the same time, European governments regarded DTM data as a possible source of evidence of the effectiveness of EU deterrence strategies.¹¹⁷

The latter aspect was thrown into sharp relief during a minor data-related scandal in late 2016, when the non-profit news organization IRIN (renamed The New Humanitarian in 2019) uncovered how faulty DTM data on drastically reduced numbers of migrants transiting through Northern Niger was touted by the European Commission and various EU governments as evidence that their efforts to curb irregular movements on African territory were producing results.¹¹⁸ Apart from being a poignant reminder of the fact that data produced by international organizations is rarely questioned and generally accepted as authoritative, the fact that the faulty number was included in various EU documents even after the mistake had been pointed out illustrates the EU’s eagerness to showcase success through numbers.¹¹⁹ An EU spokesperson highlighted the fact that regardless of the one-off miscalculation that was quickly acknowledged and remedied by IOM, the overall trend of decreasing numbers through DTM flow monitoring points in Niger remained the same.¹²⁰ While this was true, it disregarded the fact that both external observers and DTM reports pointed to evidence of a divergence of travel routes rather than an actual decrease in transit mobility through Niger.¹²¹ This disregard of the DTM’s own caveats echoes dynamics from the Haiti operation, in that the visual elements of DTM reports – curves pointing downwards – are selectively picked up to legitimize certain policy choices, despite the fact that the written analysis accompanying them is more nuanced.

These examples illustrate the political value that DTM data can have for donors, as well as for the governments of states experiencing a displacement crisis. They also show that this is largely independent from the quality of the data: In line with the notion of the ‘value of good enough numbers’,¹²² the performative function of DTM data may be more important than its accuracy. However, this may have negative repercussions for those from whom the information was extracted, as well as broader problematic political implications. The following sections attempt to systemize the potential negative side of the DTM for its ‘data subjects’, which go hand in hand with the epistemic power the organization holds with regard to both internal displacement and irregular cross-border migratory movements.

9.6 Risks and Pathologies: Mapping Out Key Concerns

The DTM is premised on the idea that data on displaced populations is essential for protection and effective interventions. This focus on the positive potential of data, and on the advocacy and fundraising roles of the DTM, tends to obscure the risks associated with data collection concerning often highly vulnerable populations. Four areas of concern stand out.

9.6.1 Insufficient Protection of Data in Field Settings

The DTM methodology entails a number of risks with regard to the protection of personal data collected in the context of registration exercises or through individual or household surveys. These are mainly related to its reliance on vast networks of local enumerators. Their rapid mobilization in humanitarian crises suggests that there is limited little time for adequate training on data protection procedures. This certainly is not specific to the DTM (interview respondents from other organizations readily conceded the challenges of collecting data in crisis settings),¹²³ yet potentially exacerbated by the sheer size of the operation and its overall lack of standardization. Beyond this, IDPs, especially in conflict settings, are often at risk of continued persecution by state or non-state actors. Contrary to the wide-spread assumption in humanitarian work that being counted is automatically beneficial since it affords access to support, this risk may be heightened through the visibility that comes with data collection.¹²⁴ Risks emerge not only as regards personal data, but also non-personal yet demographically identifiable data. Notably, much DTM data falls into this category, such as when the ethnic or religious characteristics of a group are recorded alongside their movements.

9.6.2 ‘Erasure’ of Populations with Enduring Needs

The advocacy and fundraising function that the DTM fulfills with regard to IDP populations in particular comes with immense responsibilities: It often means that once a data collection operation is discontinued, humanitarian support also comes to an end, plunging the respective groups back into a state of invisibility as far as global humanitarian efforts are concerned. The problem here is not so much the fact that support structures are eventually dismantled, but that this is not done on the basis of a comprehensive needs assessment. While it is generally difficult to ensure sustained funding for data collection, this challenge is exacerbated by IOM’s projectized funding model: once individual funding streams have dried up, enduring needs are no longer captured in data. In addition, some of the examples set out above show pressure exerted by governments can lead to changes in DTM categorization (from temporary to permanent returns in the case of Nigeria, or from camps to permanent settlements in the case of Haiti) that may erase populations with enduring needs from the view of the international community. This raises the question of whether or to what extent DTM staff is trained to do advocacy in the sense of actively bringing forward needs and concerns emerging from the data collected.

9.6.3 Crowding Out Development-Oriented Data Collectors

As a first and foremost field-based operational agency, IOM has a competitive advantage over other data collectors to quickly ‘put boots on the ground’¹²⁵ and respond to new developments. Beyond this, part of the DTM’s appeal to donors lies in the fact that it is presented as a comprehensive package or one-stop-shop that can in theory cover all data needs, particularly in the context of internal displacement.¹²⁶ The 2017 IOM Framework on Addressing Internal Displacement, for instance, notes that the DTM increasingly provides the international community with information on IDP’s access to durable solutions.¹²⁷ In line with this, the DTM is moving beyond its traditional remit of baseline assessments of the needs and characteristics of internally displaced persons in crisis settings, and into the field of collecting data on the socio-economic profiles and aspirations of displaced populations through survey methods. However, just as interview respondents shared an appreciation of the contribution the DTM makes during the early stages of humanitarian crises, there are widespread concerns as to whether the DTM – whose management has a humanitarian background, and whose ‘quick and dirty’ mindset persists in non-crisis field settings even when prodded by other actors to strive for improvements in data quality¹²⁸ – is capable of producing the high quality disaggregated data on displaced populations that are essential for moving towards durable solutions.¹²⁹ One interview respondent described DTM data as a helpful ‘conversation starter’ on the needs of displaced persons, yet highlighted the fact that at a certain stage of a displacement situation when the need for more fine-grained data arises, the balance tips and the disadvantages of DTM data start to outweigh its benefits.¹³⁰ Yet a further monopolization of internal displacement data by DTM is likely: While donors are reportedly aware both of the limitations of DTM data, and are open to funding alternative data collectors, the bulk of the resources available tend to go towards the DTM.¹³¹ The further expansion of the DTM therefore comes with a real risk of crowding out actors and initiatives specializing in the collection of data required for development programming.

9.6.4 Feeding into Perceptions of Migration as a Threat

Fourth, the DTM’s continuous quest for growth has led to an expansion of its data collection activities far beyond its initial field of internal displacement. Instead, especially since the so-called ‘European refugee crisis’ and the related rise in demand for ‘flow data’, various DTM operations now cover irregular migration movements across borders. The funding sources of these operations indicate that they are primarily motivated by individual donors’ interest in containing migratory movements towards Europe on the African continent, rather than by overarching humanitarian or development rationales. As the account of ‘flow monitoring’ in West and Central Africa since 2016 demonstrates, IOM has responded to this demand by a sometimes indiscriminate collection of data on human mobility in the region. While subsequent DTM publications differentiate between different types of movements, clarifying that much migration on the African continent is intraregional,¹³² the aggregate numbers and corresponding visualizations may feed into a European discourse focusing on the threat of an impending African exodus towards Europe.¹³³

These different areas of concerns indicate that an understanding of data protection that focuses on individually identifiable data is too narrow a lens for grasping the responsibilities that arise in the context of DTM operations. The risks and pathologies outlined above are exacerbated by the fact that due to IOM’s decentralized and projectized structure, the DTM’s rapid growth continuously outstrips the organization’s capacity for oversight and control. The concluding section of this chapter provides an overview of IOM’s data protection standards, and asks whether these live up to the organization’s broader ethical obligations in terms of adequately addressing the risks and pathologies outlined above.

9.6.5 IOM’s Data Protection Standards: Fit for Purpose?

IOM prides itself in having been among the first international organization to develop its own internal guidance concerning data protection. The IOM Data Protection Principles were developed in 2009, and set standards concerning inter alia the specified and legitimate purpose of data collection, data quality, consent and data security as well as oversight, compliance and internal remedies. A corresponding Data Protection Manual was published in 2010.¹³⁴ Both documents focus on the protection of personal data, and are aimed at preventing ‘unnecessary and disproportionate interference into privacy’.¹³⁵ The introduction to the Data Protection Manual acknowledges the particular sensitivity of data related to vulnerable groups, and notes the increased challenges linked to data protection and human rights related to the use of ‘advanced technology in migration management’.¹³⁶ In terms of oversight, IOM’s Institutional Law and Programme Support Division of the Office of Legal Affairs serves as the organization’s ‘focal point […] for data protection issues and provides advice to ensure that personal data are processed in accordance with the IOM Data Protection Principles and Manual.’¹³⁷

Since this initial standard-setting exercise, IOM has been engaged in relevant inter-agency efforts to strengthen the protection of personal data at the international level, including through its membership in the UN Privacy Group that in 2018 issued the UN Principles on Personal Data Protection and Privacy with the threefold aim to ‘(i) harmonize standards for the protection of personal data across the United Nations System Organizations; (ii) facilitate the accountable processing of personal data for the purposes of implementing the mandates of the United Nations System Organizations; and (iii) ensure respect for the human rights and fundamental freedoms of individuals, in particular the right to privacy.’¹³⁸ Further related efforts include IOM co-hosting the 6th Workshop on Data Protection within International Organizations with the European Data Protection Supervisor (EDPS) in 2017, and participating in the advisory board of the 2020 ICRC Handbook on Data Protection in Humanitarian Action that contains an extensive section on standards for processing and sharing personal data in the context of new technologies.¹³⁹

Beyond these activities focused on the protection of personal data, IOM has recently started to engage in a number of processes concerned with the more encompassing notion of ethical and responsible data management. Most notably, these include its co-lead of the IASC’s Data Responsibility Working Group that developed ‘Operational Guidance on Data Responsibility in Humanitarian Action,¹⁴⁰ and its coordination role of the Humanitarian Data Science and Ethics Group (DSEG) that recently published its ‘Framework for the Ethical Use of Advanced Data Science Methods in the Humanitarian Sector’.¹⁴¹ Both documents highlight the need for standard-setting in the field of non-personal data, reflect the state of the art with regard to ethical and responsible data collection and processing (e.g. featuring significant overlaps with the 510 Data Responsibility Policy)¹⁴² and are in that sense of direct relevance to the bulk of DTM data collection in the form of non-personal data. In addition, IOM’s 2020 Migration Data Strategy and its 2021 Internal Displacement Data Strategy both contain explicit commitments to adhere to principles of data responsibility.¹⁴³ While this indicates a significant positive development, a number of question marks remain with regard to the practical applicability of these stated commitments to the current modus operandi of the DTM.

First, unlike general data protection obligations (which are comprehensive in scope), the relevant UN standards and guidelines on data responsibility only apply to humanitarian contexts. Considering that the increasingly prominent DTM ‘flow monitoring’ component is typically used outside acute humanitarian emergencies and instead covers instances of cross-border migration (however mixed the motives may be), there remains an apparent regulatory gap in IOM’s data standards. Second, any mention of ethical obligations or responsibilities in the realm of non-personal data is conspicuously absent from IOM’s website on data protection that instead puts front and centre the idea that ‘Data protection is about the protection of personal data of individuals’, and features links to IOM’s 2010 data protection manual as well as to the 2020 ICRC Handbook (both of which focus on the protection of personal data), but none to the IASC data responsibility guidance or the DSEG framework.¹⁴⁴ Further, the DSEG framework itself contains an ‘Action Point’ on data responsibility that encourages organizations to comply with one of three ‘sector-leading’ documents on humanitarian data responsibility, these three being the 2020 ICRC Handbook, the 2010 IOM Data protection manual and the OCHA Data Responsibility Guidelines.¹⁴⁵ The fact that compliance with any one of these documents (two of which only refer to the protection of personal data) is deemed sufficient is likely to fall short of inducing real progress on the ethical and responsible processing of non-personal data.

Taken together, this indicates a piecemeal and inconsistent engagement in data-related standards beyond established principles on the protection of personal data. The rationale for this may be twofold. On the one hand, given the increase in so-called ‘data incidents’ that amount to instances of data theft or unauthorized use and disclosure of personal data in humanitarian settings,¹⁴⁶ putting in place technical safeguards to avoid such instances in the future could be considered a reasonable priority for an organization like IOM. At the same time, the curious absence of references to more encompassing data responsibility standards despite IOM being actively engaged in all the relevant fora and processes indicates a desire to showcase commitment to progress on ethics and accountability for reputational gains, while at the same time sidestepping the actual consequences of related frameworks. More specifically, taking seriously the principle of data minimization that requires the limitation of data collection to what is directly necessary for a clearly specified purpose would be in tension with the current modus operandi of the DTM, a modus characterized by expansionism. An explicit commitment to apply the principles of data minimization and defined purpose in the collection of non-personal data would call into question the apparently indiscriminate collection of data on population movements currently carried out under the DTM.

The empirical analysis presented in the previous sections indicates that so far, IOM does not appear to live up to data responsibility principles. While both IOM’s 2020 Migration Data Strategy and the 2021 Internal Displacement Data Strategy show a willingness to improve upon current shortcomings, the institutional set-up to date has not been conducive to any meaningful progress: The expansion of DTM activities, both in terms of the number of operations and in terms of the types of movements covered, epitomizes IOM’s longstanding history of entrepreneurial behaviour.¹⁴⁷ In this sense, the problems and pathologies outlined above should not be viewed as surprising, but as a consequence of IOM’s projectized and highly decentralized structure.¹⁴⁸ What makes the DTM so appealing to donors – its flexibility, quick deployment and adaptability – has a number of negative side-effects as regards data responsibility. Without changes to the incentive structure, it seems unlikely the organization will make real investments in data quality and accountability. However, shortly before this chapter went to press, relevant institutional reforms seemed to take shape: In early 2022, IOM established its new Global Data Institute as an institutional umbrella bringing together all of IOM’s data collection and analysis activities under one common roof.¹⁴⁹ At the same time, negotiations about a reform of IOM’s budget that would entail permanent funding for IOM’s ‘core structure’ have moved forward, and the new Global Data Institute is considered part of this core structure.¹⁵⁰ Against this background, the concluding section sets out a number of proposals for reform.

9.7 Recommendations for Reform

In order to live up to the core tenets of data responsibility – especially data protection provisions that take into account the potentially sensitive nature of non-personal yet demographically identifiable data and adherence to high standards of data quality – and to ensure that IOM headquarters-level efforts to improve data quality and strengthen accountability – with regard to the DTM in particular – filter through to and are respected in field-level data collection, the following aspects are key.

First, as a matter of principle, an organization’s data collection efforts should not exceed its related expertise. A realistic assessment of the limits of an organization’s expertise requires independent external evaluation. Rather than seeking continuous growth and expansion, IOM’s management should identify the added value the DTM brings to the international community’s humanitarian and development-oriented endeavours, and limit its engagement to these areas. With regard to data on internal displacement, this could mean focusing on the provision of rapid overviews and humanitarian needs assessments, while leaving space for other data actors better equipped to produce data for development programming.

Second, in order to improve the quality of data produced through the DTM, a greater degree of standardization with regard to both the collection and the validation of data is necessary – despite the fact that this entails trade-offs with the tool’s cherished flexibility and its adaptability to diverse contexts. This standard-setting should go hand in hand with obligatory trainings for DTM staff with regard to data protection, data responsibility and the systematic integration of protection concerns into data collection.

Third, awareness of the normative dimensions and the potential political instrumentalization of migration data should be strengthened among technical DTM staff at all levels of the hierarchy, but especially in field settings. This awareness-raising should go hand in hand with guidance on how to collect data in a way that makes an active contribution to the protection of IDPs and vulnerable migrants.¹⁵¹

IOM’s new Global Data Institute opens up new opportunities to achieve these changes and to strengthen IOM’s accountability with regard to its data work, for example, by enhancing control and oversight of the DTM in particular. However, at the time of writing, the post of director of this new institutional entity was not yet filled, and there was no publicly available information as to its future structure and mandate. In further specifying this, one key objective ought to be insulating the collection of data on displacement from both the market-based pressure of competition and political imperatives. The planned provision of permanent funding for IOM’s core data activities would be a prerequisite for this. If data really is ‘the lifeblood of decision-making’,¹⁵² the international community should consider high-quality data from politically independent sources to inform humanitarian and development interventions a common good, and establish the conditions for obtaining it.

10 IOM and Ethical Labour Recruitment

Janie Chuang

In recent years, the International Organization for Migration (IOM) has quietly moved from the periphery of the international system into a central role in global migration governance. IOM’s elevation reflects a major shift in the international migration field towards a reluctant recognition by States that international cooperation is needed to address some aspects of cross-border labour migration flows. Citing sovereignty concerns, States had long jealously guarded control over their borders – hence the scarcity of treaties concerning labour migration and the historic lack of an international institution recognized as the lead global migration agency. But growing faith in the potential for labour migration to foster development, combined with the challenges faced in responding to the 2015 mass migrations, prompted States to address labour migration as an issue of international concern. In a bid to assume the institutional lead on these issues, IOM joined the UN system as a ‘related organization’ in 2016, and rebranded itself as ‘UN Migration’. Soon thereafter, IOM assumed a prominent role during the negotiations over the 2018 UN Global Compact on Safe, Orderly, and Regular Migration (‘GCM’).¹ That instrument ultimately designated IOM to lead UN system-wide efforts to facilitate States’ implementation of its provisions – thus reaffirming IOM’s role as global lead agency on migration.²

From this elevated perch, IOM now enjoys a more powerful platform to promote its approach to global migration, which includes the idea that proper management can make cross-border labour migration ‘work for all’: for countries of origin and destination, and for migrants themselves. This approach coincides with a growing faith in the ‘migration-development nexus’, or the idea that remittance-producing migration can be a solution to poorer countries’ development problems. For adherents of this view (i.e. ‘migration optimists’), migration offers a ‘triple win’: countries of origin benefit from remittance revenues generated in foreign labour markets; countries of destination gain access to flexible and cheap labour; and migrants enjoy the opportunity to earn more money abroad than they would back home. Critics (i.e. ‘migration pessimists’) caution, on the other hand, that migrants do not necessarily emerge as winners from efforts to increase cross-border labour mobility. Not only do they carry the burden of economic development for their home communities, but migrant workers often face substantial risks of abusive recruitment and employment practices, even trafficking and forced labour.

As the lead global migration agency, IOM could help address these concerns by utilizing its extensive networks and soft governance techniques to encourage migrant worker-protective norms and practices be adopted and implemented. IOM’s track record provides ample reason to be sceptical that IOM would do so, however. The few studies of IOM’s past work on cross-border labour migration reveal that IOM involvement did little to prevent or address rights violations experienced by migrant workers.³ This is unsurprising, given that, unlike UN agencies (e.g. UNHCR vis-à-vis refugees), IOM does not have a formal protection mandate that would require it to prioritize migrants’ rights and well-being in its work, although the 2016 Agreement affirms that it will afford ‘due regard’ to human rights.⁴ IOM’s member states insisted that the organization remain ‘non-normative’ as a condition of it joining the UN system; this has only amplified critics’ concerns over IOM’s checkered human rights record and the potential ‘blue-washing’ of IOM’s more problematic activities if undertaken as ‘UN Migration’.⁵

Whether the mantle of ‘UN Migration’ will incentivize IOM to pursue a more rights-protective trajectory remains to be seen. But, as explored in this Chapter, one aspect of IOM’s activities – its work on ethical labour recruitment through its International Recruitment Integrity System (IRIS) – offers some initial insights into the nature and extent of IOM’s commitment, as ‘UN Migration’, to protecting migrant workers’ rights. IOM established IRIS to help ‘combat modern slavery’ by preventing the exploitation of migrant workers at the recruitment stage – hence, this is an area where IOM has articulated a clear goal of protecting migrant workers. Once mediated by governments operating through bilateral labour migration agreements, cross-border labour recruitment is now largely controlled by a highly profitable – and unregulated – private recruitment industry. The lack of regulation enables unscrupulous recruiters to impose exorbitant recruitment fees and exploitative working conditions with impunity, notwithstanding international norms that prohibit such practices.

How IOM approaches the problem of recruitment abuse is thus instructive regarding IOM’s level of commitment to (and understanding of) migrant workers’ rights protection – especially in the face of States’ strong competing interests in border control and labour market access. As the lead global migration agency, IOM is well-situated to work with States to ratify and implement ILO treaties and standards relating to ethical recruitment (e.g. the prohibition on recruitment fees), particularly as these norms are reaffirmed and reiterated in the GCM. This chapter explores IRIS’s approach to ethical recruitment. It begins by exploring IOM’s past work on cross-border labour migration, and the potential for IOM’s future role, as ‘UN Migration’, given recent developments in norm-setting in the labour migration field. It then turns to a close examination of IRIS’s signature initiative – a voluntary programme through which recruiters can be certified as compliant with a set of IRIS ethical recruitment standards. These standards are derived from ILO treaties and guidance and reproduced in the GCM, and for which meaningful compliance requires State regulation, labour inspection, and transnational cooperation. Instead, IRIS dilutes these obligations and enables further privatization of this area of governance to a set of unaccountable actors. In so doing, IRIS furthers a trend in transnational labour governance away from binding labour regulations and towards incrementalist, soft law governance,⁶ enabling States to abdicate their responsibility to create the necessary structures to prevent and address abuse and exploitation of migrant workers.

10.1 IOM and Labour Migration Governance

With 500 offices and duty stations in over 100 countries, IOM has established a substantial presence in the world, particularly given its tendency to embed itself in local communities. As Geiger and Koch have noted, IOM has successfully cultivated a vast network of partners (NGOs, local governments, businesses, and international institutions), and developed and deployed its expert authority in ways that have shaped States’ and non-State actors’ approach to migration issues.⁷ IOM operates with a decentralized structure, with its many field offices responsible for funding their own operations by undertaking projects for the IOM Member States. This has resulted in IOM operating like a private company, or a ‘jack of all trades’ ‘bureaucratic entrepreneur’ whose portfolio of projects has prompted criticism that IOM functions as an ‘instrument of Northern foreign policy’.⁸ Whether due to projectization or the lack of a protection mandate, IOM projects have drawn a fair amount of criticism for prioritizing States’ border control or market goals at the expense of migrants’ and refugees’ rights.

As discussed below, IOM’s past work on labour migration reflects a deep faith in migration as an underutilized solution to the problem of development – but for which rights restrictions unfortunately were treated as an inevitable tradeoff for greater access to foreign labour markets. Growing efforts to establish rights-protective norms for migrant workers – including most notably in the GCM, for which IOM is designated lead global migration agency – make it all the more critical that IOM prioritize rights protection in the face of competing interests in border control and labour market access.

10.1.1 IOM’s Approach to Labour Migration

As Pécoud explains, IOM understands labour migration in a supply–demand framework, in which properly managed labour mobility connects labour surpluses in poorer countries with demand for migrant workers in the Global North.⁹ Facilitating labour mobility requires, however, IOM to ‘overcome the contradiction between the nationalist/protectionist agenda over border control and the need for a flexible foreign workforce in a globalizing economy’.¹⁰ IOM would need to modify its border control- or market-oriented priorities in order to incorporate policy approaches that benefit migrants themselves. IOM’s activities and discourse typically assume, however, that the core features of the world’s political and economic organization are unchangeable, and that individuals must adapt to this global macroeconomic context.¹¹ IOM’s interventions thus target individual choices – for example, recruiters (and workers) to participate in voluntary ethical frameworks – rather than pressing for broader structural reforms that would provide more robust labour protections for workers.

IOM’s neoliberal approach to migration embraces the growing faith among governments and some civil society actors in the ‘migration-development nexus’ (MDN), or the idea that cross-border labour migration offers a solution to development problems. Leveraging the MDN has become an established mantra of development institutions and thinktanks.¹² Support for the MDN paradigm –known as ‘migration optimism’ – has arisen in response to increased recognition within the international community of the failures of past development policy – specifically, the tendency towards top-down, state-centred macroeconomic solutions, mediated by (sometimes corrupt) government bureaucracies, that are unmindful of the specificity of local contexts.¹³ Remittance-generating migration is thus pitched as a cost-effective, bottom-up alternative that gives individuals and their communities direct access to funds and a greater role in promoting development in their country.¹⁴ Migration optimists argue that, in addition to generating increased foreign currency reserves and improved credit ratings for origin countries,¹⁵ migration yields ‘social remittances’ in the form of new ideas, values, and skills that migrants gain while working abroad and share with their communities.¹⁶ Moreover, increased emigration eventually creates enough economic growth to push the community over the development curve to the point where migration pressures decrease, giving rise, eventually, to a period of stay-at-home development.¹⁷

IOM shares this development vision, having increasingly allocated resources towards ‘migration and development’ for projects to encourage and facilitate remittances from diasporas and migrants to contribute to the development process in the country of origin.¹⁸ IOM publications also emphasize the need to create a favourable investment environment and facilitate remittance flows. As critics – ‘migration pessimists’ – note, however, while migration may offer anti-poverty effects for individual families, there is little evidence that migration generates local investment and employment.¹⁹ If anything, available studies indicate that migration has tended to spur more migration; and that even after decades of remittance-producing migration, the promised period of stay-at-home development has yet to occur.²⁰ Critics argue that relying on migration as solution to the need for development fuels States’ tendency to overlook features of the political economy that continue to drive people to migrate in the first place – for example, growing inequality between countries and communities, development failures, and poor governance.²¹ Moreover, critics caution, migration can produce increased inequality between migrant and non-migrant populations within origin countries, as well as ‘brain drain’ and ‘brawn drain’ that reduce the talent available to pursue the reforms necessary to achieve sustainable development.²² Migration optimism ultimately absolves States of the responsibility to undertake the necessary reforms (e.g. addressing government corruption) to achieve sustainable development, and instead shifts the burden to migrants to engage in ‘self-help’ development.²³

That migration optimism continues to dominate development policy despite the lack of evidence of its effectiveness, critics note, suggests other agendas at play, for example, immigration control and neoliberal reliance on migrants and markets as principal drivers of change.²⁴ In placing the burdens of development on the backs of migrants, however, the model does not sufficiently attend to the negative effects of destination countries’ restrictive migration policies on migrant welfare. Guestworker programmes typically impose rights restrictions on participating migrants – the lower the worker’s skill level, the greater the rights restrictions as a condition of entry.²⁵ For migration optimists, rights tradeoffs are an inevitable – and acceptable – cost of increased access to remittance-generating jobs in foreign labour markets. Indeed, some have even cautioned that adherence to international rights standards creates problematic barriers to labour mobility²⁶ – for example, they argue that prohibiting recruitment fees ignores migrants’ willingness to pay and that governments cannot regulate in an area where they can ‘exert little control’.²⁷

IOM’s past work on labour migration evinces its embrace of migration optimism – not only in its aspirations for developmental economic gains but also in its acceptance of rights tradeoffs in exchange for access to foreign labour markets. Operating labour migration programmes in seventy countries,²⁸ IOM has actively created labour migration corridors, facilitated governments’ efforts to create temporary labour programmes, and even taken on the role of recruiter itself. Its choice of projects has been characterized as a ‘deliberate neoliberal calculation as to which areas and which populations are advantageous or not advantageous in appealing to global markets’.²⁹ IOM-Manila, for example, capitalized on the idea of the Philippines as a ‘model’ labour export regime, crafting pre-departure training sessions to create ‘ideal’ migrant workers, who would be ‘pro-active and self-responsible’ for their own successful integration into Canadian markets.³⁰ In addition to ensuring the ongoing viability of the Philippines government’s objectives for economic development, IOM-Manila’s success in promoting this labour stream positioned it to assist other countries (e.g. Indonesia) to develop labour markets for their nationals.³¹

Whereas IOM Philippines’ activities built on the country’s longstanding practice of sending its nationals to Canada, IOM’s work in Guatemala proactively introduced a market logic to Guatemala’s migration industry.³² In response to Canadian interest in finding a new labour source, in 2003, the Guatemalan embassy proposed creating a temporary worker programme that would bring Guatemalan workers to Quebec for agricultural work – tasking IOM-Guatemala with creating and implementing the programme.³³ IOM was to serve as labour recruiter in order to avoid reliance on private labour recruiters³⁴ and also to help build the Guatemalan government’s capacity to independently manage the programme in the future.³⁵ Although the programme was ultimately a quantitative success – growing from 215 to 5400 Guatemalan workers between 2003 and 2013 – it drew a great deal of criticism for its mistreatment of the workers.³⁶ The workers’ contracts, which were drafted by IOM-Guatemala, were heavily weighted in favour of the employer, with scant language concerning worker’s rights and entitlements under the contract. The contracts placed responsibility for all worker protection on the Guatemalan Consulate in Canada, despite the protection of labour rights being within the purview of Canadian federal and local government agencies and trade unions.³⁷ The workers ended up experiencing verbal abuse and humiliation, ethnic and class discrimination, harassment for bribes, and a ‘naming system’ that enabled the blacklisting of workers by growers and thus chilled workers’ complaints regarding abusive working conditions.³⁸ Rather than exercise its authority to oversee worker protections, however, the Guatemalan Consulate focused on disciplining workers – for example, returning workers who complained about abuse back to Guatemala, warning workers that unions were deceptive and best avoided, and instructing workers to permit their employers to hold their passports and identification documents.³⁹ The Guatemala-Quebec programme ended in 2013, in the wake of a scandal involving the IOM-Guatemala Chief of Mission, who went on to establish his own private recruitment business (staffed by former IOM-Guatemala employees) that later absorbed IOM’s prior market share of the recruitment business.⁴⁰ Hence, the end result of the programme was to enable origin and destination countries to maximize the economic benefits of the new labour stream, while minimizing their responsibility for the migrant workers’ well-being and rights and strengthening, instead of lessening, the privatization of migration governance.⁴¹

10.1.2 IOM as ‘UN Migration’

Given the checkered history of IOM’s labour migration projects, the decision to bring IOM into the UN fold as a ‘related organization’ in 2016 was thus troubling to those concerned with migrant workers’ rights protection.⁴² The IOM-UN Agreement enables IOM to remain independent and ‘non-normative’ in its operations.⁴³ The Agreement reiterates IOM’s independent status – rather than clarifying its inclusion, it frees IOM from UN oversight mechanisms and reporting obligations typically required of actual UN agencies.⁴⁴ At the same time, IOM rebranding itself ‘UN Migration’ enables it to stress to the public IOM’s parity with UNHCR, a ‘real UN agency’.⁴⁵ Despite the UN Secretary General’s expressed hope during the GCM negotiations that IOM might one day come further into the UN fold as a UN-specialized agency,⁴⁶ IOM has remained independent of the United Nations. Traditionally, IOM has also resisted committing to a rights-based approach to its work, with IOM Director General Antonio Vitorino explaining that in the migration policy field, unlike regarding refugees, ‘there is no equivalent normative [base], so everything will depend much more on international cooperation’ with IOM member states and international organizations.⁴⁷ The Terms of Reference that are to guide IOM’s designated role under the GCM as the lead agency for the UN Network on Migration (UNNM) require, however, that the UNNM ‘prioritize the rights and wellbeing of migrants and their communities of destination, origin, and transit’.⁴⁸ This creates the expectation that IOM – now responsible for coordinating UN system-wide efforts to assist States in implementing the GCM – will adopt a rights-based approach to its work.

The notion that there is no normative base from which IOM could pursue a rights-based agenda with respect to migrant work is at odds with international treaty law and the GCM. While the International Convention on the Protection of the Rights of Migrant Workers and Members of their Families (‘UN Migrant Workers Convention’) and the ILO Conventions pertaining to migrant workers are poorly ratified, many of the treaties’ provisions are already contained in international human rights and labour treaties that are widely ratified.⁴⁹ Indeed, all States have human rights obligations towards those within their borders, including migrants, and norms derived from other areas of law (e.g. refugee and labour) apply to migrant workers to varying degrees.⁵⁰ Moreover, as a practical matter, fulfilling States’ positive obligations to prohibit and prevent trafficking and forced labour entails compliance with a wide range of protections against abusive labour recruitment practices and working conditions.⁵¹

Indeed, the past fifteen years have brought significant advances in norm development pertaining to migrant workers, as labour migration has increasingly claimed a place on the international agenda. The establishment of the UN High-Level Dialogues on Migration and Development in 2006 – which framed migration as a potential solution to development – enabled labour migration to be accepted as an issue of international concern as opposed to exclusively a matter of domestic law or bilateral agreement. These dialogues, held every few years, helped provide the necessary groundwork for mainstreaming migration into development policy. The dialogues coincided with a ‘pendulum swing’ towards migration optimism and growing faith that migration could be leveraged to reduce poverty and prompt economic development.⁵² Globalization, in enabling increased mobility across borders, has yielded a rapid growth in remittances, which now account for as much as 43% of a country’s gross domestic product (GDP).⁵³ Out-migration for labour has thus become a de facto development policy for some countries. The idea of migration as a solution to development has thus become a ‘mantra’ of development institutions and thinktanks⁵⁴ – with the 2030 Agenda for Sustainable Development (SDGs) positing a clear relationship between well-governed migration and sustainable development.⁵⁵

Further incentivizing acceptance of labour migration as an international issue were the large-scale movements of migrants (and refugees) in 2015, which severely tested the government’s capacity to control their borders and to ignore any longer the rights abuses suffered by migrants. The mass migrations prompted the international community to adopt the GCM, which signified the first attempt by the international community to develop a shared vision of safe and orderly global migration and a framework to facilitate international cooperation to that end. Building on the linkage between migration and development,⁵⁶ the GCM attempts to balance three competing interests: (1) border security; (2) access to flexible labour markets; and (3) migrant welfare. While the GCM focuses more on preventing irregular and precarious migration than on creating additional legal migration pathways, it includes a number of provisions that, if implemented, would significantly advance migrant workers’ rights.

Among these is GCM Objective 6, which seeks to ‘[f]acilitate fair and ethical recruitment and safeguard conditions that ensure decent work’⁵⁷ – issues for which IOM has staked a claim to expertise and a leadership role. Objective 6 reflects growing awareness and attention to the endemic problem of abusive cross-border labour recruitment, which has become a preoccupation of governments, advocates, and scholars in recent years. The ILO’s Fair Recruitment Initiative, launched in 2014, brought greater understanding and visibility to the problem and lay the groundwork for norm development.⁵⁸ It helped elevate the 1997 ILO Private Employment Agencies Convention, which prohibits recruitment fees from being charged to workers and reaffirms crucial workplace rights, including the freedom of association and collective bargaining, and the right to non-discrimination.⁵⁹ Building on those norms, in 2016, the ILO developed a set of ‘General principles and operational guidelines for fair recruitment’ (‘ILO Principles and Guidelines’) and two years later developed a comprehensive definition of ‘recruitment fees and related costs’, recognizing that workers ought not to be charged directly or indirectly, in whole or in part, any fees or costs for their recruitment.⁶⁰ Offering a wide-ranging set of guidance – for governments, recruiters/employers, and workers – derived from international labour standards, the ILO Principles and Guidelines have become a touchstone for efforts to promote and ensure fair recruitment.

Building on the ILO Principles and Guidelines, through its International Recruitment Integrity System (IRIS), IOM has sought to develop its own set of ethical recruitment norms (known as the ‘IRIS Standard’), and a plan for their dissemination and uptake by various actors. The ILO Principles and Guidelines articulate a broad set of ethical recruitment norms, articulated in terms of States’ and recruiters’ respective responsibilities based on international labour standards and related ILO instruments (and cited throughout). Framed as the product of a multistakeholder initiative, the IRIS Standard, in comparison, focuses on a subset of those norms (sans references to relevant international instruments), for which recruiters are to develop management systems to facilitate compliance. Through IRIS, IOM has sought to develop and claim expertise on ethical recruitment issues, operating parallel to, but distinct from, the ILO’s Fair Recruitment Initiative. Indeed, while GCM Objective 6 explicitly calls upon States to consider the ILO Principles and Guidelines in developing national policies relating to international labour mobility,⁶¹ it references IRIS (rather than the ILO) as a source of institutional expertise.

IOM/IRIS thus has a crucial role to play in helping States to achieve Objective 6, which sets forth a number of suggested measures States should adopt to address abusive recruitment and employment practices. These include, for example, prohibiting recruiters and employers from charging or shifting recruitment fees or related costs to migrant workers – a measure that recognizes how high recruitment fees can prevent migrant workers from leaving even extreme situations or exploitation. Objective 6 also calls upon States to ensure migrants have access to safe and effective complaint and redress mechanisms for workplace violations ‘in a manner that does not exacerbate vulnerabilities of migrants who denounce such incidents’.⁶² This measure recognizes and addresses the risk migrant workers face of being subjected to retaliatory termination or deportation, or potential blacklisting from future jobs, should they complain about abuse or mistreatment. Progress on any one of these proposed measures would significantly advance the rights of migrant workers. IRIS’s work on ethical recruitment thus offers crucial insights into IOM’s commitment and capacity to pursue a rights-based approach, as explored below.

10.2 Case Study: IOM/IRIS and Ethical Labour Recruitment

Through IRIS, IOM ‘seeks to ensure that ethical recruitment, protection of migrant workers, transparency, due diligence and provision of remedy are prioritized throughout the recruitment and deployment process’.⁶³ Whereas foreign labour recruitment used to be mediated through bilateral agreements and State administration of migrant worker programmes, cross-border labour recruitment now rests largely in the hands of a powerful and unregulated private recruitment industry.⁶⁴ Recruiters are omnipresent in all migrant work sectors, providing crucial services to employers and migrants including, for example, identifying and interviewing candidates, processing visa documentation, matching candidates with employers, and assisting with travel and accommodations arrangements.⁶⁵ While most recruiters operate in ways that are beneficial for workers, governance gaps in this industry have enabled, if not encouraged, abusive practices by some, fueling the human rights violation that is forced labour in our global economy. Through IRIS, IOM seeks to transform the recruitment industry by promoting ‘ethical recruitment’, which it defines as ‘hiring workers lawfully and in a fair and transparent manner that respects and protects their dignity and human rights’.⁶⁶ IOM offers IRIS as a necessary corrective to the exploitation and abuse migrant workers too frequently endure at the hands of their recruiters.

Migrant worker exploitation often begins at the recruitment stage, when workers are misled about the job on offer, and/or charged exorbitant recruitment fees and costs (which can amount to nine months or more of average monthly earnings in some corridors, often taken on as debt to be paid off with their labour),⁶⁷ or are misled about the job on offer. Unethical recruiters can remain profitable despite their exploitative practices due to their perpetually large client base – the supply of workers seemingly limitless (especially for low-skilled jobs) compared to the finite demand for their labour.⁶⁸ A lax or non-existent regulatory environment enables recruiters to prioritize placing workers rather than ensuring that their jobs are decent. This encourages worker turnover rather than worker retention. Indeed, recruiters may offer financial incentives to employers to entice them to replace existing workers with new workers. Recruiters can then earn fees from both the new worker and the terminated worker, the latter having to pay another recruitment fee for a new placement.⁶⁹ Such practices can plunge workers into perpetual debt bondage, unable to pay off the debts accumulated as a result of the (often exorbitant) recruitment fees, such that the work devolves into a form of trafficking and forced labour. Meanwhile, market dynamics make it all the more difficult for ethical recruiters – who would shift the costs of recruitment from workers to employers – to compete for space in a market with well-established unethical recruiters who can offer their services to employers at a lower cost.⁷⁰ Corruption and kickbacks further skew the market, as recruiters in origin countries are pressured to pay recruiters in the destination countries in order to win bids to supply workers.

Regulating international labour recruiters poses its own set of challenges. Where foreign labour recruitment is regulated, recruitment practices have typically come under the purview of domestic labour laws, which may require licensing, prohibit certain activities and assign (mainly civil) penalties for non-compliance.⁷¹ The fact that foreign labour recruitment practices span multiple jurisdictions enables easy deflection of legal responsibility, however, with blame redirected at the parties operating outside the jurisdiction. Meanwhile, most efforts to prevent and discipline recruiter abuse through registration and licensing requirements appear to have had little impact, with fines for violations typically too low to deter future violations.⁷² Moreover, the political influence wielded by the highly profitable recruitment industry in the countries of origin and of destination may exacerbate the weak or deficient enforcement of recruitment regulations. Indeed, where there is a persistent lack of decent work opportunities at home, unethical recruitment practices may become the accepted norm rather than the exception.⁷³ In such contexts, aspiring migrant workers may view protections against recruitment abuse as impediments to securing a livelihood, and workers may even collude with recruiters to circumvent them to secure jobs abroad.⁷⁴

Of the complex dynamics and array of actors enabling, even fueling, recruitment abuse, IOM’s IRIS initiative has focused on transforming the private recruitment industry. IRIS has developed – and through a voluntary certification programme, encouraged recruiters to adopt – a set of ethical recruitment standards, known as the ‘IRIS Standard’. The IRIS Standard calls upon recruiters to respect all applicable laws related to labour recruitment, the ILO ‘core labour standards’ (prohibiting trafficking, forced labour, and child labour, discrimination, and upholding freedom of association and collective bargaining rights),⁷⁵ and relevant norms of professional and ethical conduct.⁷⁶ The IRIS Standard also enumerates specific principles: prohibiting recruitment fees and related costs to migrant workers; and ensuring respect for freedom of movement, transparency of terms and conditions of employment, confidentiality and data protection, and access to remedy.⁷⁷ Developed through multistakeholder consultations, the IRIS Standard draws from a number of sources, including international human rights instruments, UN Guiding Principles on Business and Human Rights, international labour standards and related ILO instruments, the ILO’s General Principles and Operational Guidelines for Fair Recruitment, as well as ‘best practice from government regulators and the recruitment industry’.⁷⁸

In hopes of inspiring industry-wide adoption of the IRIS Standard, IRIS collaborates with industry associations (e.g. the Consumer Goods Forum and the Leadership Group for Responsible Recruitment) and other IOM programmes such as IOM’s Corporate Responsibility in Eliminating Slavery and Trafficking (CREST) Initiative to encourage recruiters to embrace the IRIS Standard by making the ‘business case’ for ethical recruitment.⁷⁹ IRIS has also developed ‘capacity building’ programmes for recruitment agencies, employers, suppliers, brands, governments, and civil society organizations, to introduce them to the IRIS Standard.⁸⁰ The capacity-building programming aims to enhance recruiters’ capacity to meet the IRIS Standard, in hopes of encouraging and readying private recruitment agencies to participate in the IRIS Certification programme. Labour recruiters that send or receive workers from overseas can apply for IRIS certification, which if granted, offers inclusion in a public list of ‘IRIS certified labour recruiters’ and the right to use the IRIS-certified trademark on their websites and promotional materials. IRIS pitches this as an opportunity for recruiters to ‘increase their market visibility and attract new clients and workers’.⁸¹

IRIS describes its certification model as taking a ‘management system approach’, requiring applicants to demonstrate that ‘the way [the recruiter] manages the different, interrelated parts of it[s] business, in order to meet its objectives’ meets the requirements of the IRIS Standard.⁸² The audit has two phases: the first involves a desk review of the recruiter’s business practices based on documentation of the company’s policies, operating procedures, contracts, job advertisements, etc.; the second phase occurs on-site and involves interviews with recruiters, workers, and business partners, to verify that a management system is being followed. The auditor is ultimately the one to decide about IRIS Certification, for which there are five possible outcomes – from best to worst level of compliance with IRIS principles: leading, performing, developing, no rating, or alert. After undergoing the certification process, IRIS-certified recruiters will be subject to compliance monitoring, which involves ‘lighter’ ‘surveillance audits’ every six months for two years, after which the recruiter will undergo IRIS recertification.⁸³

Rather than conducting the certification itself, IRIS outsources the certification process to a third-party ‘Scheme Manager’. IOM/IRIS serves as ‘Scheme Owner’, responsible for developing the IRIS Standard, advocating for ethical recruitment, capacity building, and stakeholder engagement. IRIS appoints a separate ‘Scheme Manager’ to manage the IRIS certification process, including training and certifying the third-party auditors who conduct the actual audits of the labour recruiters. IOM has appointed as Scheme Manager the Social Accountability Accreditation Services (SAAS), ‘an independently managed division’ of Social Accountability International (SAI), a US-based charitable, nongovernmental organization that seeks to advance human rights at work.⁸⁴ SAI is a prominent multi-stakeholder initiative (MSI) – a collaboration among businesses, civil society organizations, and other stakeholders to advance fair and decent workplace practices through social auditing. Social auditing establishes a set of standards and an audit process by which businesses can be assessed for compliance with the relevant standards. SAI’s SAAS division evaluates and accredits auditors to assure they are qualified to hold their clients accountable to social standards.⁸⁵ The actual IRIS Certification audits are thus conducted by third-party, SAAS-certified private audit companies, a key shortcoming of its institutional design as discussed further below.

10.3 IRIS: Challenges and Opportunities for a Rights-Based Approach

In undertaking to establish labour recruitment norms and a process for certifying compliance with ethical recruitment, IRIS is not charting new territory. But what is noteworthy – and concerning – is that these efforts carry the imprimatur of ‘UN Migration’, and the presumed legitimacy that comes with the affiliation with an international institution.

In appointing SAAS as ‘Scheme Manager’, IRIS is essentially outsourcing the running of the IRIS Certification process to the private enforcement industry. This is in some ways not surprising, as it is consistent with what critics have identified as a tendency by IOM to rely on market-based approaches to migration governance. In its past forays into labour migration management, IOM prioritized creating new migration corridors in order to reap the benefits of increased labour market access, but with insufficient attention to migrant workers’ rights protections. The structure of the IRIS certification scheme maintains this prioritization, despite its stated goal of promoting ethical recruitment practices and advancing migrant workers’ rights protections. Not only does the IRIS certification process leave migrant workers vulnerable to rights violations by labour recruiters and employers, but it enables States to abdicate their responsibility to protect migrant workers’ rights, as discussed below.

10.3.1 The Perils of Governance by Audit

In outsourcing to SAAS, IOM in effect places recruiter certification in the hands of a private enforcement industry that has been criticized by scholars and labour advocates for being ill-equipped to identify, much less address, workers’ rights violations.⁸⁶ The private enforcement industry has grown rapidly since its emergence in the 1990s when cuts to labour inspection budgets and the rise of ‘corporate social responsibility’ (CSR) norms led to increased reliance on social auditing of firm practices for compliance with labour (and environmental) standards. Social auditing has since become a multibillion-dollar business, dominated by large multinational companies – with publicly traded stocks, thousands of employees, and highly paid CEOs – that fiercely compete for market share in the CSR and social auditing industry.⁸⁷

Social auditing has drawn criticism, however, as a poor substitute for labour inspection and enforcement by government entities.⁸⁸ Accusing the private enforcement industry of ‘brokering in deception’, critics argue that these auditors profit off of the impression that they can rid supply chains of labour abuse despite ‘mounting evidence of their ineffectiveness’ at doing so.⁸⁹ Audit firms increasingly resemble the global companies they monitor and assess, with their own long supply chains and incentives to keep costs low and executive salaries and stock values high. Downward pressure can cause audit firms to reduce the amount of time spent on worksites and on auditor trainings, or to outsource the audits to subcontractors who may be inadequately trained to conduct thorough assessments of firm practices.⁹⁰ Moreover, because the audit industry is not subject to a set of professional standards, auditors who overlook or conceal problems can do so with impunity as they are rarely held accountable for the content of their reports. The fierce competition among audit firms can even incentivize pandering to the audit targets, in hopes of retaining the targets as clients for future audits.⁹¹

Given industry dynamics, it comes as little surprise that workers at workplaces deemed compliant with labour standards by private auditors have experienced devasting rights violations. For example, the 2012 Ali Enterprises fire, which claimed the lives of nearly 300 workers in a single garment factory fire in Pakistan, took place at a factory that had passed muster in an audit conducted by an audit firm accredited by Social Accountability International, SAAS’s parent entity. As it turned out, the auditors had never set foot in the factory, having instead subcontracted the audit to a local firm that had certified the factory despite its lack of fire safety measures, its failure to register with the Pakistani government, and its failure to provide the majority of the workers with formal employment contracts.⁹²

Even apart from the problematic dynamics of the audit industry, many aspects of the audit design can undermine the identification of problematic recruiter practices. When auditing a company with a long supply chain, for example, auditors typically assess the Tier 1 companies at the top of the chain, leaving the bottom tiers of the supply chain – where the abusive practices are most prevalent – entirely unexamined. Even when audit scrutiny extends to the bottom of the chain, companies can readily circumvent the discovery of problematic practices. On-site audits are typically announced in advance, enabling audit targets to make disgruntled workers unavailable for interviews, to engage in fraudulent bookkeeping, and to make superficial adjustments to pass inspection.⁹³ Uncovering problematic practices is further hampered by the fact that audit reports are typically held strictly confidential, thus shielding the audit findings from government or public scrutiny that might otherwise enable the findings to be contested or corrected. Indeed, confidentiality requirements may even prohibit auditors from reporting worker abuses to those positioned (e.g. government agencies and NGOs) to provide assistance or to advocate on the workers’ behalf.⁹⁴

While, in theory, the IRIS certification process could involve an audit design that addresses at least some of these deficiencies, it does not appear to do so. IRIS audits are announced in advance,⁹⁵ and the audit reports are the property of the labour recruiter and may only be shared with other parties with the express written permission of the labour recruiter.⁹⁶ The process does not appear to adequately safeguard against SAAS-certified auditors subcontracting the audits to other firms. While the IRIS Certification procedures include a mechanism for workers (and recruiters) to lodge complaints about labour recruiter performance, or the integrity of the audit, complainants must first pursue their complaints with the auditor; only after exhausting the auditor’s complaint mechanism can the complaint be brought before the SAAS.⁹⁷ Without meaningful anti-retaliation measures in place, however, workers may reasonably fear being blackballed for future jobs or subjected to retaliatory termination and/or deportation if they complain – thus rendering it unlikely that workers would avail themselves of the grievance mechanism. Moreover, the IRIS certification scheme does not include any vehicle or metric for assessing SAAS’s own performance as Scheme Manager. Meanwhile, IOM explains its own recusal from the IRIS Certification process as designed ‘to deliver capacity building programmes without conflicts of interest’ and also, out of recognition that ‘certification is beyond IOM’s mandate and expertise’.⁹⁸

10.3.2 Abdicating State Responsibility to Protect Migrant Workers’ Rights

The problems of the audit industry and audit design aside, IOM’s approach to fostering ethical recruitment raises a host of broader concerns regarding IOM’s commitment and ability to protect and enhance migrant welfare. In response to the seemingly intractable problem of recruitment abuse, IOM has adopted a neoliberal, market-based approach that focuses on reforming a highly profitable, unregulated industry through CSR measures that have proven inadequate to meaningfully protect migrant workers.⁹⁹ Not only does this approach fundamentally fail to understand the dynamics of the recruitment market, but it enables the continued abdication by States to fulfil their responsibilities to ensure decent work and protect the rights of migrant workers.

IOM’s attempt to incite industry-wide change through a voluntary certification system – one IRIS-certified recruiter at a time – seems quixotic when one considers the highly competitive nature of the recruitment market. For example, so long as market norms continue to place the burden of recruitment fees on the workers instead of the employers, IRIS-certified recruiters will be hard-pressed to compete with non-certified recruiters. Cost-conscious employers are far more likely to hire recruiters who charge recruitment fees to workers than recruiters who would shift the costs to the employers. Meanwhile, recognizing that uncertified recruiters likely have greater access to placement opportunities, workers may actually prefer the services of uncertified recruiters over ‘ethical’ recruiters, notwithstanding the risk of potential recruitment abuses. Ethnographic studies of migrant worker streams reveal the lengths to which migrant workers will go to secure job opportunities abroad, knowingly engaging in debt-financed migration – even at exorbitant rates and with the expectation of poor working conditions (at least temporarily).¹⁰⁰ Absent a regulatory environment that prevents unethical recruiters from maintaining their market advantage, the benefits of IRIS Certification – for either recruiter or worker – remain unclear.

Even the World Employment Confederation (WEC) – which represents the private employment services industry at the global level – recognizes that ‘the best way to promote ethical recruitment is by creating an appropriate regulatory framework for private employment services in countries of origin and of destination’.¹⁰¹ Only decent recruitment regulation and enforcement – including a prohibition on recruitment fees – can drive rogue recruiters out of the market and enable professional cross-border recruiters to develop ‘a decent free-of-charge service to jobseekers’.¹⁰² WEC thus advocates for States to adopt the ILO Convention on Private Employment Agencies (No. 181),¹⁰³ which bans the charging of recruitment fees to workers. Curiously, IOM does not cite this treaty in support of IRIS Standard, Principle 1 (prohibition of recruitment fees and related costs to migrant workers), referencing instead (non-binding) ILO instruments.¹⁰⁴ IRIS’s focus on transforming the cross-border recruitment industry through voluntary certification without also pressing for government regulation and enforcement of ethical recruitment standards is thus a half-measure at best, doomed to failure. It enables States’ abdication of the responsibility under the GCM to ‘enhance[e] the abilities of labour inspectors and other authorities to better monitor recruiters’.¹⁰⁵ Moreover, should a State choose to adopt recruitment regulations, it remains unclear what role IRIS Certification ought to play – for example, with recruiters potentially using their IRIS Certification as grounds for avoiding State labour scrutiny.

10.3.3 A Better Direction

Despite the apparent launch of IRIS Certification in late 2018, as of this writing, the IRIS website has yet to list any recruiters as having achieved IRIS Certification. Moreover, for a website that is otherwise frequently revised, there have been few updates on the status of the programme over the past year. This suggests the possibility that the certification programme may be stalled – perhaps due to a lack of financial or political support, or perhaps recognition that ‘transformative change’ via voluntary certification may be difficult to achieve. There are, however, two relatively new IRIS initiatives that could hold nascent potential – if reoriented – for advancing ethical recruitment norms: (1) IRIS’s ‘Global Policy Network on Recruitment’ (GPN), launched in December 2020; and (2) an effort to focus on ‘Migrant Worker Voice and Engagement’. As discussed above, a greater focus on States’ role (and responsibilities) to ensure migrant worker protection, and on incorporating migrant workers’ perspectives into IRIS programming are necessary for IRIS to meaningfully advance ethical recruitment norms and implementation.

The GPN perhaps signifies IRIS’s belated recognition of the need to target States as key actors in enabling and promoting ethical recruitment practices, rather than relying primarily on voluntary certification to transform recruiter behaviour. The GPN is ‘a Member State-led collaboration to bring together senior policymakers, regulators, and practitioners to address challenges, identify solutions, and highlight promising practices to strengthen recruitment regulation and migrant worker protection’.¹⁰⁶ The GPN emerged from a conference IRIS held in 2019, in Montreal, Canada, that brought together 100 State policymakers from over 30 countries, and produced IRIS’s ‘flagship resource’: the Montreal Recommendations on Recruitment: A Road Map towards Better Regulation’¹⁰⁷ (Montreal Recommendations), which IRIS recommends States now adopt.¹⁰⁸ The Montreal Recommendations are intended to provide practical guidance to governments ‘to enable more effective regulation of international recruitment and protection of migrant workers’.¹⁰⁹

The Montreal Recommendations reflect, however, IOM’s ‘soft touch’ when it comes to States’ obligations to uphold the human rights and labour rights of migrant workers. The Montreal Recommendations are largely derivative of the ILO General Principles, but unlike the ILO General Principles¹¹⁰ – which frames its guidance in the language of States’ ‘responsibilities’ and cites extensive treaty law in support¹¹¹ – the Montreal Recommendations omit such references. This gives the overall impression that the contents of the Montreal Recommendations are simply the negotiated outcome of a conference, rather than rooted in international legal obligations. IOM would do better to reorient its engagement with States to emphasize States’ obligations under international law. Particularly given IOM’s role as lead agency under the GCM, IRIS should utilize the GPN to encourage States to implement GCM Objective 6(a): ‘[p]romote signature and ratification of, accession to and implementation of relevant international instruments related to international labour migration, labour rights, decent work and forced labour’.¹¹²

The second aspect of IRIS’s work that could be redirected to advance a rights-based approach lies in its recent efforts to enhance ‘migrant worker voice and engagement’. As this initiative is pitched on its website, IRIS seeks ‘to empower migrant workers and the organizations that advocate on their behalf’.¹¹³ IRIS defines ‘migrant voice’ broadly to include ‘migrant-centred activities’. But it lists as examples only training programmes for migrants and support for civil society organizations (CSOs), suggesting a top-down approach to migrant engagement that does not offer migrants a meaningful opportunity to voice their concerns or offer policy input. Moreover, IRIS envisions CSOs being involved in ‘overseeing compliance of international recruitment practices and grievance mechanisms that link CSOs in countries of origin and destination’.¹¹⁴ While, as discussed above, a far more robust grievance mechanism than that currently included in the IRIS Certification process is sorely needed,¹¹⁵ the apparent outsourcing of both design and implementation of such a crucial mechanism to CSOs suggests IRIS’s anaemic commitment (or perhaps lack of expertise) to migrant worker protection. A more concerted effort to centre migrant voices in IRIS programming would better enable IRIS to achieve its stated goal of developing ‘an ethical recruitment ‘safety net’, promoting remedy (when needed), and enhancing holistic safe migration experience for migrants’.¹¹⁶

10.4 Conclusion

With IRIS, IOM has sought to address a complex and vexing problem that requires substantive State engagement and commitment to migrant workers’ rights protections. Overall, however, IRIS’s approach reflects a lacklustre commitment to migrant welfare that is consistent with the market-friendly, neoliberal underpinnings of IOM’s approach to migration governance. In outsourcing crucial elements of its programming to unaccountable non-state actors, IOM falls short of its potential – and, indeed, its responsibility under the UNNM Terms of Reference and arguably under its ‘due regard’ human rights obligation under the 2016 Agreement – as lead global migration agency under the GCM to prioritize migrant workers’ rights protections. Notwithstanding its espoused commitment to ethical recruitment, the IRIS certification process lacks a mechanism for ensuring that rights protections are meaningfully implemented. Its approach foregoes the opportunity to press governments to adopt binding treaties and pass regulations – hewing instead to IOM’s tendency towards fostering dialogue and inter-state cooperation, and acceptance of non-binding standards. It also fails to appreciate the importance of creating meaningful and safe opportunities for migrant workers to engage in the certification process and to provide input into IRIS programming. Without a baseline normative commitment to migrant workers’ rights protection – and labour expertise to guide States towards realizing such a commitment – IRIS offers, at best, the rhetoric, but not the reality, of ethical recruitment practices. Only by redirecting its efforts can IOM/IRIS transform cross-border labour recruitment such that it operates to ‘the benefit of all’ – that is, not simply States and employers, but also migrant workers.

11 The International Organization for Migration in Humanitarian Scenarios

Geoff Gilbert

11.1 Introduction

The International Organization for Migration (IOM) is not explicitly identified in its Constitution as a humanitarian organization,¹ yet a lot of its work now takes place in situations of acute crisis alongside UNHCR, the ICRC and other traditional humanitarian actors.² A series of questions arise as to the framework for those activities, IOM’s accountability to those with whom it works, its engagement with other actors, and the relationship it has with its member states.³

This chapter deals with those, so far, unanswered questions by looking at the nature of IOM and its related organization status with the United Nations. It then moves on to its major focus, the first-ever detailed analysis of the impact of IOM’s 2015 Humanitarian Policy – Principles for Humanitarian Action,⁴ and related internal policy documents, including the 2012 Migration Crisis Operational Framework, which provides a reference frame for IOM’s response to the mobility dimensions of crisis situations.⁵ Consideration is also given to humanitarian actions in the context of mixed populations, especially given cross-border movements consequent upon natural disasters.⁶ As its work in these scenarios increased, it became evident to IOM and its members that these policies and frameworks needed further development.

The chapter then looks more generally at IOM’s engagement with IDPs, referring to the remit of the Guiding Principles on Internal Displacement with respect to all actors,⁷ and IOM’s involvement with refugees. The chapter addresses IOM’s engagement with these populations in light of UNHCR’s unique mandate for refugees, including returning refugees, and in the light of the Global Compact on Refugees. While not designed for responding to humanitarian scenarios, the Global Compact for Safe, Orderly and Regular Migration (GCM) also provides a framework that can be applied thereto.⁸ Within the GCM, there is a reference to refugees not being a mere subset of migrants, but recognition nevertheless that they might make independent use of migratory pathways to seek their own durable solutions. The final discussion sheds light on the fact that while IOM is an actor in humanitarian scenarios, it is not a humanitarian agency per se: under its Constitution and in its relationship with its member states it has specific functions that often place it in humanitarian situations, but its mandate has not yet developed to turn it into a humanitarian agency like the ICRC or UNHCR,⁹ one that acts independently of states and gives primacy to the principle of humanity. Bringing together for the first time its 2016 related organization status with the UN with its own 2015 Humanitarian Policy, and providing a framework in international law to understand IOM’s obligations and, to an extent, its accountability, this chapter proposes that, even if they are not explicitly in its Constitution, human rights and protection must be accorded priority with respect to all its work in humanitarian scenarios – given its related organization status with the UN and the fact that some of the people with whom it interacts may be refugees, the Constitution needs a further amendment to specifically include references to international human rights law and protection.

11.2 The Nature of IOM

Vis-à-vis the responsibility of the different organizations in international law, there is little or no distinction.¹⁰ However, UN agencies with humanitarian mandates generally strive to act independently of member states of the United Nations, while IOM openly claims to be closely engaged with its member states:

IOM’s structure is highly decentralized and this has enabled the Organization to acquire the capacity to deliver an ever-increasing number and diversity of projects at the request of its Member States.¹¹

On its face, IOM’s mandate is about facilitating state objectives while UNHCR’s is to protect individuals, but that is too simplistic an approach – it is not enough to look at mandates, but one needs to set them in their practical context. The fact that the source of funding for both IOM and UNHCR states is the unavoidable consequence of the nature of international society: UNHCR is funded by states but it aims to act independently¹² and even earmarked funding is for the protection of individuals, not to promote programmes that states want in order to facilitate migration as those states desire it. Equally, UNHCR has to preserve the ‘protection space’, which requires cooperating with states where there are persons of concern to ensure access and better protection of assistance to persons of concern. The lack of a Constitutional mandate for IOM to uphold the rights of migrants is pertinent, though, here: whereas the UN Charter promotes and encourages respect for human rights and UNHCR’s Statute sets out its mandate as providing international protection to refugees,¹³ Article 1 of IOM’s Constitution is focused in part on inter-state co-operation to facilitate migration; the lack of a reference to the protection of the human rights of migrants in the Constitution means that there could appear to be a lack of a counterbalance.¹⁴

As regards operations in humanitarian scenarios, though, there could be a significant difference in approach by IOM and humanitarian actors because of the humanitarian principles of humanity, impartiality, neutrality and independence:¹⁵ the humanitarian principles apply to states and international organizations operating in the humanitarian sphere and reflect human rights standards such as non-discrimination, respect for the dignity of everyone, and norms of international humanitarian law, such as neutrality. Their legal status in international law is complex and whether they are binding on international organizations, and, if so, how there could be accountability for breach, are issues touched on below, but some discussion of the basic concepts here will set the context.

By way of corollary, Riedel has argued that there is wide acceptance that Article 55(c) of the UN Charter is binding on the United Nations as an organization and that the UDHR represents the first step by UN organs to realize ‘the programme enshrined in Article 55(c)’.¹⁶

Thus, with respect to the ICRC, the humanitarian principles are binding given that the Movement adopted them at its 20th International Conference in Vienna (1986).¹⁷ A similar argument can be made in relation to the humanitarian agencies of the United Nations following the adoption of UNGA Resolution 46/182 (1991). The Office for the Co-ordination of Humanitarian Affairs (OCHA) stated in 2011 at the time of the twentieth anniversary of Resolution 46/182 that, through long use, it:¹⁸

remains the common basis for the provision of humanitarian assistance. In the resolution, Member States set out the principles that guide humanitarian work, whether it is undertaken by States, the United Nations, or other humanitarian agencies such as the International Red Cross and Red Crescent Movement and non-governmental organizations.

However, does that have any bearing on their applicability to IOM? The 2016 General Assembly resolution to establish IOM as a related organization,¹⁹ provides as follows:

Article 2: Principles

5. The International Organization for Migration undertakes to conduct its activities in accordance with the Purposes and Principles of the Charter of the United Nations and with due regard to the policies of the United Nations furthering those Purposes and Principles and to other relevant instruments in the international migration, refugee and human rights fields.

6. The United Nations and the International Organization for Migration will cooperate and conduct their activities without prejudice to the rights and responsibilities of one another under their respective constituent instruments.

IOM only agrees to pay ‘due regard’ to UN policies that further the Purposes and Principles of the Charter, such as the humanitarian principles. Given that the text of the Resolution will have been agreed between the United Nations Office for Legal Affairs and IOM’s Legal Department, it can only be assumed that IOM insisted on ‘due regard’ being the level of obligation, rather than a commitment to ‘uphold’ which would have equated IOM with UN agencies.²⁰ IOM and the UN co-operate without prejudice to the rights and responsibilities of each other. Thus, even after 2016 there is no straightforward applicability of the humanitarian principles for IOM. On the other hand, when read with Paragraph III.1 of the 2015 Humanitarian Policy,²¹ which endorses the four humanitarian principles, then no-one can say IOM should not pay them due regard in its humanitarian operations, although the glosses IOM adds in the 2015 document may mean that it has not unequivocally internalised them.²² Given IOM’s close relationship with states in its operational activities under its Constitution, closer than that of other humanitarian actors whose mandates focus on individuals, there needs to be a delicate balancing exercise to ensure independence is maintained whilst at the same time acknowledging that states need to co-operate to provide access if protection of the displaced populations is to be effected and effective. What is even more difficult, but here IOM is no different from every other international organization, is to determine how it might be held to account if it were to fail to uphold the humanitarian principles. This aspect is discussed more fully below.

The text of the 2015 Humanitarian Policy is a dry international document without any context or history, so before analysing it, it is useful to look at IOM’s fieldwork that led to its adoption.

11.2.1 IOM Field Operations

IOM has a large institutional footprint, with over 590 offices and sub-offices in over 100 countries around the world.²³ In many places, it facilitates the return of migrants or carries out the resettlement of refugees to third countries.²⁴ In other operations, its work in-country has much to do with the protection of persons on the move, some of whom may be international migrants, but many of whom are refugees or IDPs. For example, a recent IOM report details its involvement in assistance and repatriation from Libya, especially for vulnerable persons, but it does not mention once that some of them might be refugees; that said, it does refer to upholding human rights.²⁵ In contrast to its earlier practice of sometimes referring to the Rohingya in Bangladesh as ‘undocumented Myanmar nationals’, recent reports on IOM’s work in Bangladesh are much more oriented towards recognizing the need for humanitarian protection and that the Rohingya in Cox’s Bazar are refugees.²⁶ As stated, IOM is very decentralized,²⁷ which can mean that protection and human rights are more to the fore in some operations than in others.

11.2.2 IOM and Its ‘Related Organization’ Status with the United Nations

IOM’s entry into related organization status with the United Nations in 2016 has consequences for understanding its role in humanitarian scenarios.²⁸ Related organization status does not mean IOM is legally part of the United Nations itself,²⁹ and, furthermore, IOM had already worked with the UN for decades before the 2016 Agreement.³⁰ The related organization status, though, does affect how one must assess IOM’s activities in humanitarian scenarios. According to Article 2.5 of the 2016 Agreement, set out above, IOM ‘undertakes to conduct its activities in accordance with the Purposes and Principles of the Charter of the United Nations’ (emphasis added).³¹ As such, Articles 1 and 2 of the UN Charter are now expressly endorsed as part of IOM’s operational practice.³² Human rights should now be an explicit part of all the agency’s operations in order that it acts in accordance with Article 1.3 of the Charter, which also reflects customary international law binding on international organizations that provide services to and interact with individuals.³³ However, there is no reference to human rights or even ‘protection’ in the IOM Constitution.³⁴ The 1991 UNGA resolution on the Humanitarian Principles, which expressly mentions IOM as a standing invitee to the United Nations Inter-Agency Standing Committee,³⁵ should also be seen as integral to all IOM humanitarian operations as a relevant UN instrument in ‘the international migration, refugee and human rights fields’.³⁶

IOM’s project-based financing model can implicitly privilege state interests over those of individual migrants.³⁷ The explicit ‘protection’ lacuna in IOM’s constituting document vis-à-vis its expanding role in humanitarian situations is even more problematic given that it has the lead for the IASC’s Cluster on Camp Co-ordination and Camp Management (CCCM) in relation to ‘assistance, protection, and services’ in natural disaster internal displacement situations.³⁸ By comparison, UNHCR’s 1950 Statute establishes that its mandate is to provide international protection to refugees.³⁹ In parallel with its protection mandate, it assists governments to create durable and sustainable solutions through voluntary repatriation, local integration or resettlement; UNHCR’s protection is no longer required when a state provides a solution, dismissing thereby any notion of a protection-solutions dichotomy.⁴⁰ IOM has no such protection mandate for migrants, whom the organization defines very broadly,⁴¹ and that is potentially problematic if it is working in humanitarian scenarios. While assistance to displaced populations is central to their survival, all humanitarian actors must first and foremost ‘protect’ those displaced populations, that is, they must, at minimum, act independently of political, military or economic objectives, uphold their own neutrality and carry out their work impartially and with humanity, not facilitate states’ political objectives.⁴² The commitment to promote and encourage respect for human rights, in line with the customary character of the purposes and principles of the UN Charter, also infuses a protection mandate.

On the other hand, since the conclusion of the GCM in 2018, IOM’s mandate needs also to be considered in the light of the Compact’s implications with respect to both human rights and protection.⁴³ As stated, the GCM is not designed to respond to persons caught up in humanitarian crises. That said, there are frequent references in the GCM to human rights and to protection. As regards protection, the GCM sets out in Paragraph 4 of its Preamble that while refugees and migrants benefit from international human rights law and that those rights must be respected, protected and fulfilled, only refugees ‘are entitled to the specific international protection defined by international refugee law’.⁴⁴ In several places, the GCM refers to respecting, protecting and fulfilling human rights,⁴⁵ but there are also occasions where protection takes on a broader understanding relevant to humanitarian scenarios and which helps to shape the application of the 2015 Humanitarian Policy. For example, GCM Objective 7(j), dealing with vulnerabilities in migration, provides that member states of the United Nations shall:

(j) Apply specific support measures to ensure that migrants caught up in situations of crisis in countries of transit and destination have access to consular protection and humanitarian assistance, including by facilitating cross-border and broader international cooperation, as well as by taking migrant populations into account in crisis preparedness, emergency response and post-crisis action;

Unlike refugees, however, there is no international organization with a formal mandate to provide international protection where that consular protection is unavailable to non-refugee migrants.⁴⁶ The GCM also discusses the protection of trafficked persons, something that increasingly pertains in humanitarian crises.⁴⁷ In interpreting the 2015 Humanitarian Policy, though, it is Objective 2 on minimizing the ‘the adverse drivers and structural factors that compel people to leave their country of origin’ that is the most pertinent.⁴⁸

Taken together, the 2016 Agreement and the 2018 GCM should have the effect of expanding IOM’s mandate beyond its very limited Constitution, and the 2015 Principles for Humanitarian Action should be read in the light of these dynamic developments. The member states of IOM sit in the United Nations General Assembly and endorsed the 2016 Agreement, the New York Declaration and, subsequently, the GCM.⁴⁹ Nevertheless, that does not necessarily mean that when sitting in the IOM Council,⁵⁰ its member states prioritize those United Nations documents over ‘opportunities for orderly migration’ set out in its own Constitution.⁵¹ Furthermore, the decentralized character of IOM also means that headquarters agreements are not unswervingly implemented at national level. The consequence is that since 2016 and even 2018, there have been situations where the human rights of migrants, some of whom at least were also refugees, were not upheld by IOM.⁵² IOM, like any other international organization that deals directly with individuals, has always been bound under customary international law by international human rights norms.⁵³ The 2016 Agreement and the GCM re-enforce such obligations and its Constitution should be imbued with them shaping all Council decisions.

11.2.3 National Prioritization and the Development Actors

A criticism levelled at IOM in this field of operations is that it often works more openly and more closely with states than traditional humanitarian actors, such as the ICRC, calling into question its independence and impartiality in relation to both the humanitarian principles and the international law of armed conflict, where pertinent.⁵⁴ However, the development actors within the United Nations also operate on the basis of national ownership and leadership. UNDP works with states to develop National Development Plans over which states have ownership. The World Bank’s work with states, even the poorest that host so many displaced persons, is based on loans and grants to support the state’s development under national leadership.⁵⁵ Furthermore, partly in recognition that most situations of forced displacement are protracted and that to deem them ‘humanitarian crises’ throughout their duration was hardly commensurate with reality, the Global Compact on Refugees calls on the international community as a whole, including development actors, to work together to resolve situations of displacement; this is also a major theme in the 2021 report of the UN High-Level Panel on Internal Displacement.⁵⁶

Thus, while humanitarian agencies traditionally acted independently of the states where they operated, the humanitarian-development dichotomy was always false,⁵⁷ so IOM’s perceived greater deference to its member states and its closer engagement with states is not necessarily as distinctive as might have first been thought. That said, while all international organizations need the state’s permission to operate within its borders,⁵⁸ IOM’s Constitution defers more to its member states and the states in which IOM operates than the 1950 UNHCR Statute, for example.⁵⁹

With this general context set out, it is possible to review IOM’s 2015 Humanitarian Policy, the associated organizational documents, and other international instruments that are pertinent to IOM’s role in humanitarian operations.

11.3 IOM’s 2015 Humanitarian Policy on Principles for Humanitarian Action and Related Documents⁶⁰

IOM’s 2015 Humanitarian Policy does not stand on its own but has to be read along with its Migration Crisis Operational Framework and its 1953 Constitution, as amended 2020.⁶¹ In addition, there are several general UN documents that apply to all humanitarian actors and which, especially after the adoption of the UN-related organization agreement of 2016, should apply to IOM, too, although it has added its own glosses.⁶² In addition, customary international law can apply to international organizations in certain circumstances.⁶³ Given that IOM’s own instruments were promulgated over a period of time as humanitarian action was developing in the field,⁶⁴ it is inevitable that there will be no simple and perfect confluence of policy and operational approach. Therefore, while this section is focused on the 2015 Humanitarian Policy document, if one is to assess it against IOM’s long history of practice in humanitarian situations, one must have regard to all these additional and related documents.

The 2015 Humanitarian Policy references international humanitarian, human rights and refugee law, the 2012 Migration Crisis Operational Framework (MCOF),⁶⁵ the IASC’s Civil-Military Guidelines & Reference for Complex Emergencies, 2008,⁶⁶ and the OCHA Guidelines on the Use of Foreign Military and Civil Defence Assets in Disaster Relief, the ‘Oslo Guidelines’.⁶⁷ These provide a firm basis in which to locate the 2015 Principles for Humanitarian Action. As will be seen, much of the 2015 document does reflect the approach of other humanitarian actors, particularly supporting states as the primary duty bearers (Principle IV.2). What needs to be addressed in particular are those occasions where IOM is dealing with more than one scenario within a single document and the different policies it might be applying in parallel for the benefit of migrants (Principle III.7).

According to Principle I.4 of the 2015 Humanitarian Policy, IOM’s role as a humanitarian institution with respect to movement by people during a crisis is ‘ultimately to save lives, alleviate human suffering and protect the human dignity of the persons affected’.⁶⁸ While this is commendable, the lack of any direct reference in this Principle to international human rights law, rule of law and the humanitarian principles as underpinning this role as a humanitarian institution is indicative of an international organization that has no legal protection mandate. Principle II highlights this even more. There is a clear overlap in part with the work of UNHCR,⁶⁹ but the 2015 Humanitarian Policy focuses first and foremost on movement, not protection, indicating:

II.1 IOM, as the leading intergovernmental organization dedicated to migration, is guided by the migration mandate conferred on it by the IOM Constitution, the Migration Governance Framework and other formal IOM documents.

On the other hand, the rest of Principle II, as will be discussed, is protection focused,⁷⁰ drawing on the MCOF,⁷¹ despite protection not being part of the Constitution. Principle II of the 2015 Humanitarian Policy, taken as a whole, therefore, needs to be understood as the foundation for IOM’s humanitarian activities, and through which other protection frameworks, whether internal to IOM or courtesy of external commitments and obligations, can be incorporated.⁷² This is particularly the case with the humanitarian principles of humanity, impartiality, neutrality, and independence,⁷³ which are replicated in Principle III, but with a gloss that undercuts them; the gloss IOM puts on the terms in Principle III is generally helpful, but some points do require further analysis, especially in relation to impartiality and independence – Principle III.1(b) and (d). As regards impartiality, IOM explains that ‘[while] it recognises the importance of balancing the needs and interests of different stakeholders, it strives to be strictly non-partisan in its humanitarian action’, prioritizing the most vulnerable (emphasis added). The term ‘stakeholders’ is only used twice in the entire document, the other reference being with respect to humanitarian partnerships (Principle V.2). In that context, other stakeholders are described in Principle V.4:

IOM works to strengthen and build on existing and new partnerships at local, national, regional and global level with States, international and non-governmental organizations, civil society, the persons affected and other relevant actors in all fields relevant to migration crisis response, including humanitarian action, migration, recovery, peace and security, and development.

That states are included as partners and, hence, stakeholders, raises unanswered questions about ‘impartiality’ in Principle III.1(b). For certain, all humanitarian actors must cooperate with the state where the displaced population now finds itself. However, the language of this sub-paragraph suggests that IOM only strives to be ‘strictly impartial in its humanitarian action’.⁷⁴ For humanitarian action to be effective, it must be available to all those affected by humanitarian crises, an approach that also facilitates continued access without hindrance by any actors, particularly in the context of armed conflict. Many humanitarian actors also have a presence in states outside of crises, where they work more closely with national authorities in order to build capacity and reduce the likelihood of future emergencies, but their crisis mode is independent, as discussed below, and it is in this context that impartiality is particularly important. It is a fact that in its Principles of Humanitarian Action, IOM explicitly refers to working with states that questions its impartiality and, as will be seen, independence.

In relation to independence, Principle III.1.d itself is completely aligned with what is expected of humanitarian actors, in that it ‘must remain independent of the political, financial or other objectives that any others may have in areas where humanitarian action is being implemented’. On the other hand, most of IOM’s funding is project-based.⁷⁵ As such, the influence of donors and remaining ‘independent of the political, financial or other objectives that any others may have’ could prove difficult in practice.⁷⁶ This is not to question IOM’s objectives or intentions, but to recognize that implementation in the field is always more complex and complicated. Since a lot of funding for humanitarian actors by donor governments is earmarked, IOM is not that different, but that is why, in part, humanitarian agencies call for increased unearmarked funding. This issue is a challenge for all humanitarian actors.

According to sub-paragraph 7 of Principle II, IOM endorses states’ ‘primary responsibility to protect and assist crisis-affected persons residing on their territory, and where appropriate their nationals abroad, in accordance with international and national law, including international humanitarian, refugee and human rights law’.⁷⁷ Therefore, by definition, IOM’s role arises where there is displacement in a humanitarian crisis or where persons are caught up in a humanitarian crisis during their migration and where the transit state or state of destination is unable or unwilling, either wholly or in part, to provide that protection, unless a different international actor has that mandate, such as UNHCR vis-à-vis refugees, conflict-driven IDPs and stateless persons.⁷⁸ Likewise, if there is an armed conflict, the ICRC has a protection mandate in relation to all civilians, non-combatants or non-fighters caught up therein as it upholds the international law of armed conflict.⁷⁹ While the combination of the 2015 Humanitarian Policy and the MCOF lay down for IOM a framework for engagement in humanitarian crises, it should be noted that the MCOF is not limited to humanitarian activities and the 2015 document occasionally seeks to differentiate the nature of its work, even when dealing with people whose migration might have started during a humanitarian context. For example, Principle II.6 indicates:

These Principles guide IOM’s overall response to migration crises when the Organization is also engaged in non-humanitarian activities under the Migration Crisis Operational Framework (Principle II.3). This is particularly relevant when IOM is involved in the progressive resolution of displacement situations […]

Unlike UNHCR’s ongoing protection mandate, Principle II.6 indicates that IOM’s Humanitarian Policy is only a guide to activities outside humanitarian crises, although the policy applies to all activities in countries facing a humanitarian crisis, even if it is not directly related thereto.⁸⁰ It would be better if the 2015 Humanitarian Policy were explicitly referenced as a foundational institutional commitment within a revised version of IOM’s constitutional framework and applicable in all humanitarian crisis settings for the benefit of all migrants.

Humanitarian Protection and Partnerships, Principles IV and V, need to be read in conjunction. As regards humanitarian protection, IOM adheres to the IASC definition,⁸¹ and as such IOM supports states, as the primary duty-bearers under international law, in meeting their commitments to ‘migrants, displaced persons and affected communities’ (Principle IV.3). What is really helpful about IOM’s approach to humanitarian protection is its focus on the drivers of vulnerability set out in Principle IV.4.

These vulnerabilities and protection risks are the result of the interplay of four principal factors:

IV.4.a individual characteristics (such as age, sex, gender identity, physical condition, ethnic or religious affiliation);

IV.4.b pre-crisis social, economic, environmental and political features of the local context (e.g. patterns of marginalization and exploitation, of access to power and resources);

IV.4.c external disruptive factors induced by, or resulting from, forced migration (such as lack of access to resources and services, family separation, disruption of traditional livelihoods, etc.); and

IV.4.d the specific environments in which the persons concerned are located as a result of migration and displacement (camp, transitional shelters, detention centres, borders, etc.).

By spelling out all these interlinked factors, it provides the humanitarian actors with guidance and direction as to the gaps and failings in the protection regime and the focus for advocacy so as to address and remedy them. Ensuring states and other duty-bearers, including where appropriate IOM and other humanitarian agencies, respect, protect and fulfil the rights of displaced persons and ensure non-discrimination is an aspect of humanitarian protection.⁸²

No humanitarian operation ever involves just one actor, so partnerships are fundamental to protection. Of course, the moment that two organizations are working in tandem, there are greater difficulties in guaranteeing all obligations will be fulfilled because there may be differences in mandates and policies. Accordingly, the policy provides:

V.2 IOM engages in partnerships and cooperates with the stakeholders involved in humanitarian action on the basis of shared principles to promote mutual respect, complementarity, predictability and reliability for a more effective humanitarian response.

Detailed working arrangements need to be agreed, for example, where information and data sharing will take place.⁸³ According to Principle V.8, IOM will seek to engage more with the private sector in humanitarian scenarios. This is a trend throughout the humanitarian sector.⁸⁴ Ensuring that they abide by humanitarian principles, therefore, should be a sector-wide endeavour to guarantee interoperability between different organizations.

Potentially more significant as a threat to protection is the reference in Principle V.9, referring to links with diaspora populations.⁸⁵ For certain, diasporas can provide support to people on the move who are outside their country of nationality. On the other hand, many states that have witnessed population outflows are fragmented and stratified in ways that mean that not all elements of the diaspora will be supportive to those presently migrating and within IOM’s mandate. Mixed population flows from different ethnic groups from the state in crisis mean that some of the tensions internal to that state may be continued in the context of displacement. Therefore, sharing information about a displaced population with a diaspora community requires even greater care to ensure that humanitarian actors ‘do no harm’. The fact that Principle V.9 refers only to ‘ethical verification’ as the check measure seems weak in this context, especially when there are international human rights law standards, rule of law, and the humanitarian principles which also need to be respected in this context.

Principle V.13 is a useful link between Humanitarian Partnerships and Humanitarian Practice under Principle VI:

V.13 When required to coordinate with military actors for the delivery of relief assistance forming part of a humanitarian response, including the use of military assets, IOM subscribes to the relevant [Inter-Agency Standing Committee guidelines and policy.⁸⁶

Engagement with peacekeeping forces or with parties to a conflict is largely unavoidable in some humanitarian crises. The IASC CivMil Guidelines 2008⁸⁷ and the 2007 Oslo Guidelines⁸⁸ provide IOM with the standard rules for all humanitarian agencies and, as such, promote interoperability. A careful line needs to be drawn, though, so as to avoid being seen as working with one or more parties to a conflict in order to preserve neutrality and independence, while, at the same time, humanitarian actors need to ensure the safety of staff working in and moving around conflict zones.⁸⁹ In sum, IOM’s policy in this particular context complies and is fully in line with other humanitarian actors.

With respect to humanitarian practice, the 2015 Humanitarian Policy needs careful analysis. It has to be read alongside the MCOF,⁹⁰ the 2007 Oslo Guidelines⁹¹ and the 2007 IASC CivMil Guidelines.⁹² The latter two documents have been dealt with in part already, but the MCOF needs a fuller discussion. Principle VI.1 provides that ‘IOM applies a principled approach to humanitarian action in different operating contexts, integrating humanitarian principles into the Migration Crisis Operational Framework’. The 2012 MCOF is designed to allow IOM to better support its member states, who bear the primary ‘responsibility to protect and assist crisis-affected persons’.⁹³ The MCOF ‘[supplements] the humanitarian response for migrants caught in a crisis situation’ (paragraph 8). The MCOF has two pillars, ‘Phases of a Crisis’ and ‘Sectors of Assistance’, and identifies 15 sectors of assistance that apply to the three phases of a crisis, ‘before, during and after’. Before looking at the sectors, the approach to the phases does not bear close scrutiny given that humanitarian crises may be at different phases in different parts of the same operation, and distinguishing between the pre-crisis phase and when the crisis is occurring, let alone divining clear dividing lines from the post-crisis phase, suggests a level of naivety that is worrying for an agency operating in conflict zones or disaster operations. It has always been difficult to differentiate phases of a crisis, so to establish that as an integral part of an operational framework may well create false distinctions. For certain, the sectors of assistance that IOM lists all occur where there is displacement at whatever stage of a crisis and their operationalization is central to protecting persons who have been affected, whether that be the people on the move themselves or the communities where they find themselves at any particular time.⁹⁴ To take but one example, the IASC has given IOM leadership for camp co-ordination and camp management with respect to persons displaced by disasters. The assistance in relation to camp management during the immediate aftermath of a natural disaster will develop and change if it takes a long time to rebuild homes or relocate affected populations, but the phases tend to be more fluid in practice. For example, after an earthquake, there will be a need for emergency shelter and other support, but annual storms or other natural events in the region may cause temporary setbacks in progress. This calls into question why IOM felt the need to refer to the phases of a crisis: what is essential is that IOM should provide the most appropriate protection and assistance to those affected by a humanitarian crisis throughout and until a durable and sustainable solution is attained.⁹⁵ The phases create a false, unwieldy and ultimately unworkable trichotomy.⁹⁶ They also reflect the fact that IOM’s Constitution relates to the movement of persons, not their protection or human rights. To that end, it is good that Principle VI.3 refers to embedding the humanitarian principles in its response.⁹⁷

Sub-paragraphs 6–9 of Principle VI raise a question about mandates. IOM operates a very broad definition of migrants that includes notably IDPs⁹⁸ and the 2015 Humanitarian Policy sets out how it will work in the context of a crisis scenario. UNHCR, on the other hand, has a unique mandate for refugees and the lead for conflict-driven IDPs and all stateless persons. ICRC’s mandate is to uphold the laws of armed conflict.⁹⁹ These sub-paragraphs focus on armed conflicts, but also on scenarios where there is no armed conflict but a human-made disaster such as ‘internal violence, disorder or conflict’.¹⁰⁰ If this is a case of internal displacement, then UNHCR would have the mandate lead. Equally, since UNHCR issued Guideline No.12 (2016) on claims for refugee status related to armed conflict and violence,¹⁰¹ based on its Statutory Mandate and Article 35 of the 1951 Convention relating to the Status of Refugees,¹⁰² UNHCR has clearly set out that those who have crossed a border due to armed conflict or violence are generally to be considered refugees under the 1951 Convention because they meet the criteria set out in Article 1A.2.¹⁰³ Where sub-paragraphs 8 and 9 of Principle 6 come into play is in the context of some of the people who have crossed the border are not nationals of the state where the conflict is occurring, but are migrants caught up in its effects. They would not be unwilling to avail themselves of its protection, although it is possible that they would be unable to do so. Given that they were able to safely return to their country of nationality, they would not be refugees, but if that were not the case, they could be réfugiés sur place. If it is a case of internal displacement, though, then the non-nationals fall under the Global Protection Cluster where UNHCR has the lead for conflict-driven IDPs.

UNHCR is formally mandated to apply the humanitarian principles, and it is important that in those cases where IOM is dealing with migrants displaced across a border, it too will apply those principles in humanitarian crises. For certain, UNHCR fails on occasions, but that is because there has been a failure to carry out its mandate;¹⁰⁴ IOM can fail to protect individuals to whom it is providing migration services and not ‘respect, protect and fulfil’ their human rights, even when it is fulfilling its constitutional mandate to:

transfer … refugees, displaced persons and other individuals in need of international migration services for whom arrangements may be made between the Organization and the States concerned, including those States undertaking to receive them.¹⁰⁵

The Constitution explicitly prioritizes the interests of the member states and, until that is amended, the danger is that human rights will not be to the fore. For example, in August 2021, after President Ashraf Ghani had fled Kabul and the Taliban took control of the country,¹⁰⁶ IOM was still seeking additional funding to help return undocumented Afghans to Afghanistan.¹⁰⁷ UNHCR issued a non-return advisory on 17 August 2021,¹⁰⁸ but IOM did not immediately withdraw its request for funding for returns from donor governments. Up to August, IOM’s return policy may have upheld the rights of returning Afghan nationals and met the needs of refugee hosting states in the region, but that programme should have been suspended pending a new evaluation in the light of the Taliban assumption of control.¹⁰⁹

Sub-paragraphs 10–14 of Principle VI highlight even more the inappropriateness of IOM’s three-phase analysis, ‘before, during, after’, and the false humanitarian-development dichotomy prevalent in some organizations dealing with crises, not least the United Nations.¹¹⁰ These sub-paragraphs, taken together with sub-paragraph 4, bring to the fore the evolution of displacement situations over time and the need to bring development actors in from the earliest stage possible:

If economic, social, and cultural rights are fully implemented within a rule of law approach, then the rights to work and shelter must be given prominence alongside freedom from arbitrary detention. Given that the modal average length of a protracted situation [of displacement] is around 20 years, priorities will inevitably change and the humanitarian crisis that prompted flight will become a situation of protracted displacement. The displaced will then need to be seen as part of the development plans for the [hosting state] …. Failure to address the practical reality of situations of protracted displacement has led to the creation of a parallel ‘State’ on the territory of the [hosting state] that traps the [displaced person] and has no benefit for the hosting government of the local population. … Rule of law approaches that are underpinned by all human rights and whole society participation facilitate this understanding and promote stability and development in the [hosting state] and the State of return. Equally, they promote interoperability between [humanitarian and development actors].¹¹¹

Ultimately, protracted displacement itself is a failure, particularly if the affected group are migrants who fear no persecution in their country of nationality but have been driven out of a state where they were living and working or a transit state by armed conflict or violence; moreover, IOM’s work can include IDPs moving because of human-made or natural disasters and refugees may equally have been caught up in that more general population flow.

IOM’s work with persons displaced by natural disasters applies whether it is internal or cross-border according to sub-paragraphs 15–17 of Principle VI.¹¹² The Guiding Principles on Internal Displacement include people who have to move because of natural or human-made disasters and do not cross an international border.¹¹³ Moreover, the Guiding Principles reflect, at least in part, customary international law,¹¹⁴ and provide guidance to all actors working with IDPs.

3. These Principles reflect and are consistent with international human rights law and international humanitarian law. They provide guidance to:

[…]

(d) Intergovernmental and non-governmental organizations when addressing internal displacement.

In 1998, the status in international law of the Guiding Principles was unclear. However, it is now generally accepted that through long use and domestic implementation, they reflect customary international law.¹¹⁵ As such, IOM must have regard to them and is bound to the extent that Paragraph 3(d) of the Introduction and Scope can be read to now attribute them to international organizations as customary international law. Thus, its 2015 Humanitarian Policy should be read in that light.¹¹⁶ In particular, sub-paragraphs 4 and 5 of Principle III on humanitarian access should be read with Guiding Principles 25.3 and 30.¹¹⁷

25.3. All authorities concerned shall grant and facilitate the free passage of humanitarian assistance and grant persons engaged in the provision of such assistance rapid and unimpeded access to the internally displaced.

30. All authorities concerned shall grant and facilitate for international humanitarian organizations and other appropriate actors, in the exercise of their respective mandates, rapid and unimpeded access to internally displaced persons to assist in their return or resettlement and reintegration.

IOM can assert this in the context of internal displacement, but it also claims this role with respect to cross-border natural disaster displacement.¹¹⁸ In this context, there is less applicable international law to guide agencies’ engagements. UNHCR’s mandate vis-à-vis refugees do not apply to those moving because of natural disaster or climate change.¹¹⁹ Other relevant documents, such as the Sendai Framework¹²⁰ and the Nansen Initiative’s Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change,¹²¹ are not legally binding in and of themselves.¹²² Therefore, IOM’s 2015 Humanitarian Policy provides it with guidance that helps to fill a protection gap when taken with other international frameworks and the work of other international organizations, intergovernmental organizations and NGOs.

Finally with respect to the 2015 Humanitarian Policy, sub-paragraphs 12–17 of Principle II on Humanitarian Accountability deal with the accountability of IOM. IOM has no equivalent of the 1946 Convention on the Privileges and Immunities of the United Nations on which to rely.¹²³ Nevertheless, it will usually have a memorandum of understanding with all the states where it operates ensuring immunity from the jurisdiction of local courts for all its international staff unless that is waived. Moreover, the International Law Commission’s ‘Draft Articles on the Responsibility of International Organizations’ will, to the extent that they reflect customary international law, be binding on IOM, although that does not guarantee there is any remedy for a breach by IOM before domestic courts.¹²⁴ As regards the 2015 document, Principle II.12 provides:

II.12 In its humanitarian response, IOM is accountable to the persons and States concerned, its Member States, donors, and its partners within the humanitarian response system. IOM is committed to strengthening its accountability mechanisms and to keeping them under continuous review.

While all of that is commendable, it does call into question how IOM balances accountability to donors, states where it is operating, and the persons who should be the focus of its 2015 Humanitarian Policy.

Overall, the 2015 Humanitarian Policy does not stand alone. It has to be read with other IOM documents and with a range of instruments developed beyond the organization. It also has implications for IOM’s entire range of activities, not just its humanitarian crisis activities. The obligations fit with those of other humanitarian actors, although there are occasions where more direct reference to the humanitarian principles promulgated by the United Nations and ICRC would be helpful. More often the question is not whether IOM claims to uphold those principles, more whether they have priority over its constitutional focus on assisting states and its project-based financing model.¹²⁵

11.4 Conclusion

IOM is a major actor in humanitarian crises. Given that its Constitution does not set out any protection mandate or embed international human rights law or international humanitarian law standards into its operating policy, there are gaps in protection for persons who do not fall within the mandates of any of the other humanitarian actors. Thus, the 2015 Humanitarian Policy is a positive addition to the frameworks of protection, even if it could never fill the gap left by the lack of an explicit protection mandate set out in a revision to the Constitution that prioritized humanity, neutrality, impartiality and independence over the organized transfer of migrants agreed between IOM and the states concerned. That said, the loose language on occasions and the regular reference to supporting member states and donors in the 2015 document calls into question IOM’s commitment to the humanitarian principles, particularly independence and impartiality. As IOM’s relationship with the United Nations develops over time, particularly now that it is a related organization, it may be that IOM’s operating procedures will reflect more and more fully the humanitarian principles. At the minute, rather than thinking of IOM as a humanitarian agency per se, it may be better to consider it an intergovernmental organization that works in humanitarian scenarios.¹²⁶

The principal issues arising from the 2015 Humanitarian Policy concern not so much what is set out there, but the gaps and its centrality to the organization. IOM still has no protection in its mandate or reference to human rights.¹²⁷ The humanitarian actors with whom it will engage in crises have that focus. IOM’s Constitution has evolved over the course of the organization’s history and the member states may still revise it. The explicit inclusion of a humanitarian mandate in the Constitution, and recognition of the obligations that come along with this identity, would confirm the agency’s status and more squarely place it alongside the ICRC and UN humanitarian actors, prioritizing human rights, the humanitarian principles and rule of law. As it stands, the Constitution¹²⁸ still reflects its 1953 focus on facilitating migration for the good of its member states and there are several instances where the rights of migrants have not been prioritized.¹²⁹ As this chapter has made clear, despite the positive developments seen in the 2015 Humanitarian Policy, its related organization status with the UN and the fact that some of the people with whom it interacts may be refugees, require that the Constitution be further amended to explicitly include references to international human rights law and protection.

12 IOM’s Engagement with the UN Guiding Principles on Internal Displacement

Bríd ní Ghráinne and Ben Hudson

12.1 Introduction

The vast majority of migrants with whom IOM works directly are Internally Displaced Persons (IDPs) in conflict and disaster situations. For example, in 2019 IOM provided protection and assistance to more than 21 million IDPs.¹ This makes IOM one of the largest global actors in responding to IDPs and their protection needs. It is one of the few agencies whose operations on internal displacement span the crisis continuum – from preparedness and risk reduction, to humanitarian protection and assistance, through the transition to longer-term solutions and recovery.² Responses to internal displacement constitute most of IOM’s crisis-related programming, whether implemented at the individual or community levels.³ Put simply, all these factors mean IOM is a major player – if not the major player – in the international community’s response to internal displacement.

Yet, IOM has been remarkably under-studied – especially compared to other agencies such as the UN High Commissioner for Refugees (UNHCR).⁴ IOM’s operations with IDPs have received even less attention.⁵ Thus, although IOM has made an explicit commitment to human rights and humanitarian principles,⁶ scholars are not holding IOM accountable to these norms.

As such, this chapter is the first to take the important initial step in holding IOM to account from the perspective of the key international instrument for the protection of IDPs – the UN Guiding Principles on Internal Displacement (GPs). Specifically, it assesses to what extent IOM has integrated the GPs into its policies and frameworks and, through two case studies of IOM’s work with IDPs in Haiti and Iraq, examines the extent to which IOM has implemented the GPs in its practice and approach in these country-specific contexts. At present, these aspects of IOM’s work are very unclear for three reasons. First, as aforementioned, there is little scholarly analysis on this topic. Second, IOM contended, as recently as 2004, that it was not bound by international human rights law.⁷ This contention is of particular concern as many of the GPs are in substance grounded in international human rights law and hence form part of IOM’s obligations.⁸ Third, although several of IOM’s more recent core institutional policies and frameworks have explicitly recognized an obligation to protect and promote human rights,⁹ these frameworks and policies are not yet well known outside the agency, and they rarely mention the GPs.¹⁰ This omission is striking because IOM’s operations are overwhelmingly focused on the ‘global south’, particularly with IDPs in conflict and disaster situations.¹¹ Moreover, IDPs are amongst the most vulnerable groups in the world,¹² and naturally, it is highly desirable that one of the largest actors responding to their needs pays close heed to their key rights as encapsulated by the GPs.

The chapter proceeds as follows. Part 2 sets out what an IDP is and introduces the GPs, the obligations reflected in the GPs, and the centrality of the GPs in the overall international framework of IDP protection. Part 3 then explains the basis for IOM’s operations with IDPs. In particular, we explain that although IOM does not have a clear formal mandate for assisting and protecting IDPs, it has justified its IDP activities in various ways, including through its Constitution, its role in the Inter-Agency Standing Committee (IASC), and the cluster system. Part 4 holds IOM to account by critically examining the extent to which it has delivered on its explicit undertaking ‘to promote and respect the Guiding Principles in its work, and to disseminate them as widely as possible’.¹³ We do this by mapping explicit references to the GPs in pertinent IOM policy instruments and by interrogating IOM’s adherence to the durable solutions approach that is espoused by the GPs. Part 5 then critically examines how the GPs have been implemented by IOM in practice in the context of disaster (Haiti) and conflict-induced displacement (Iraq).

While it is important to recognize the positive impacts of IOM’s work with IDPs,¹⁴ this chapter identifies and interrogates, with some concern, substantial inconsistencies that exist between IOM’s activities and both the letter and ethos of the GPs. Concerns arise from a seeming decline in explicit IOM references to the GPs as the leading international standards for IDP protection, evidenced in part by their absence in key IOM documents such as the 2015 Humanitarian Policy and its 2012 Migration Crisis Operational Framework. In addition, some of IOM’s policies and frameworks not only neglect to refer to the GPs but also suffer inconsistencies with the GPs in terms of content. Inconsistencies also exist between IOM’s operations and the ethos of the GPs. For example, this chapter is critical of IOM’s almost exclusive camp-based focus in Haiti and its predominant preference for return as a durable solution to internal displacement, which is evident in IOM’s operations in Iraq. Adherence to the GPs cannot thus be taken as a given and should be more concertedly systematized in IOM’s ongoing work with IDPs.

12.2 The International Protection of Internally Displaced Persons

IDPs are persons who have been forced or obliged to leave their places of habitual residence as a result of factors such as armed conflict, violence, human rights violations or natural or human-made disasters, but who have not crossed an international border.¹⁵ IDPs often have similar wants, fears, and needs as refugees such as access to shelter, medicines, food, water, and safety from harm.¹⁶ However, unlike refugees, IDPs do not have a specific legal status under international law and there is no dedicated global (as opposed to regional) treaty that grants them protection.¹⁷ In addition, while the UNHCR has a specific mandate for the protection of refugees,¹⁸ there is no international organization that has a dedicated mandate for protecting IDPs. IDPs are therefore amongst the most vulnerable groups in the world in terms of the harm to which they are exposed, the relative lack of binding international legal frameworks dedicated to their protection, and the absence of institutions with a specific responsibility for their protection.

In 1998, Francis Deng, the then Representative of the UN Secretary General on Internal Displacement, concluded the drafting of a protection framework for IDPs. The form of the framework was unspecified in the UN resolutions asking him to draft the framework. Consequently, the Representative decided to elaborate a set of non-binding principles based on existing provisions of human rights and humanitarian law and drawing from refugee law by analogy. The 30 principles were divided into five parts – (i) General Principles; (ii) Principles Relating to Protection from Displacement; (iii) Principles Relating to Protection during Displacement; (iv) Principles Relating to Humanitarian Assistance; and (v) Principles Relating to Return, Resettlement and Reintegration. Under the GPs, states have primary responsibility for protecting IDPs within their borders. Yet, the GPs also address the roles and responsibilities of international actors. For example, Principle 27 indicates that international humanitarian organizations and other appropriate actors should ‘give due regard to the protection needs and human rights’ of IDPs, and that they should ‘respect relevant international standards and codes of conduct’.

The publication of the GPs has been described as a ‘benchmark’¹⁹ and a ‘watershed event’²⁰ in IDP protection. Although technically a soft law instrument and not in themselves legally binding, most of the principles are based on existing international law. Moreover, the GPs have received widespread endorsement, with IOM itself noting that the GPs ‘reflect and are consistent with international human rights and humanitarian law’.²¹ At least 78 displacement affected states from all over the world have adopted national laws or policies on IDPs,²² many of which explicitly recognize or are based on the GPs. The GPs have also inspired the development of two regional treaties on internal displacement in Africa,²³ and they have been heralded as ‘the key international framework’ for the protection of the internally displaced by the UN General Assembly.²⁴ That is not to say the GPs are without limitations. For example, parts of the GPs, such as the prohibition on internal refoulement in Principle 15, appear to go further than existing hard law provisions.²⁵ This confuses and conflicts with the common assertion that the GPs simply reflect and reassert existing international law provisions.²⁶ The GPs are also limited in respect to durable solutions, most notably in their lack of an explicit IDP right to return.²⁷ Nevertheless, the GPs are the globally acknowledged blueprint for all actors addressing internal displacement, which thus justifies their use in this chapter as an analytical lens through which to critique IOM’s work on internal displacement.

Despite the introduction of the GPs in 1998, internal displacement remains a major global challenge. We are indeed now witnessing the highest number of IDPs on record. Numbering 55 million by the end of 2020,²⁸ IDPs can be found on almost every continent. Moreover, internal displacement is expected to rise even further in the future, particularly because of new and ongoing protracted conflicts that will likely displace millions of people, and the increased displacement anticipated as a result of disasters associated with the effects of climate change.²⁹ Internal displacement is therefore a multi-causal issue that is set to become even more significant in the coming years. It is precisely for this reason that it is important to appraise to what extent IOM’s policies and frameworks integrate the GPs, and to what extent IOM abides by the GPs in practice.

12.3 IOM’s Justification for Its Activities with Internally Displaced Persons

Even though IOM is one of the largest global actors on IDP issues, it does not actually have an explicit legal mandate to protect the rights of migrants, let alone the rights of IDPs. Rather, IOM’s Constitution tasks it with facilitating orderly migration flows generally. The IOM Constitution has been described as ‘permissive’ because it allows IOM to provide assistance without limiting the categories of persons with whom it engages, or the forms of assistance it provides.³⁰

IOM has defined the term ‘migrant’ broadly, encompassing ‘any person who is moving or has moved across an international border or within a State away from his/her habitual place of residence, regardless of (1) the person’s legal status; (2) whether the movement is voluntary or involuntary; (3) what the causes for the movement are; or (4) what the length of stay is’.³¹ As such, this definition includes IDPs as persons of concern to IOM. Specifically, it is broad enough to include all IDPs described as such by the GPs, that is

persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border.³²

IOM’s permissive Constitution has allowed the organization to strategically position itself as a ‘jack of all trades’,³³ filling key gaps in the international humanitarian system. IOM is involved in a wide variety of activities with IDPs ranging from providing shelter and aid packages in crisis situations, to facilitating IDP evacuations and return processes, transport and logistics, and addressing displaced persons’ housing and property concerns. More recently, it jointly designed and prepared the UN High-Level Panel on Internal Displacement (with UNHCR and the UN Office for the Coordination of Humanitarian Affairs (OCHA)).

While IOM’s activities span a very broad range, it has also carved out distinctive niches in particular areas. For example, IOM has played a significant role in responding to disaster-induced displacement. As Hall’s chapter in this volume indicates, IOM has conducted extensive research and facilitated discussions on displacement associated with the effects of climate change,³⁴ and has taken on major operational roles in post-disaster displacement crises.³⁵ IOM has also developed disaster risk reduction and management initiatives intended to prevent large-scale and protracted displacement linked to natural hazards,³⁶ convened policy discussions on displacement linked to the effects of climate change,³⁷ and also provides training on how to use the GPs.³⁸ It was involved in many high-profile disaster situations including the 2003 earthquake in Bam, Iraq; and the 2004 Indian Ocean tsunami.³⁹

IOM’s role as a global leader in disaster situations is solidified by its participation in the ‘cluster approach’ to international coordination in humanitarian crises, including in relation to internal displacement. The cluster approach focuses on nine different areas of humanitarian response, with each assigned a ‘cluster lead’. The cluster lead sets out the needs for the relevant situation as well as organizes planning, coordination and reporting. It is the first port of call and the provider of last resort in respect of each individual operation in which the system is applied. Within the cluster approach, UNHCR and IOM are co-leads of the Camp Coordination and Camp Management cluster (CCCM), with UNHCR leading in conflicts and IOM leading in disasters. In taking on this role, IOM saw itself as a ‘key and consistent actor within this collective [i.e. cluster] response’.⁴⁰ It crystallized IOM’s influential position in the humanitarian system, which it has leveraged to facilitate further growth and influence, making IOM among the largest humanitarian agencies in disaster settings. Within the cluster approach, IOM has responded to many high-profile disaster situations including the 2013 Typhoon Haiyan in the Philippines, the 2017 Iraqi earthquake,⁴¹ and the 2019 Cyclone Idai in Mozambique.⁴² IOM’s role within the cluster approach will be further analysed in the case studies explored in Section 12.5.

IOM has also carved out a niche for itself as a major player in data collection in IDP situations, as set out in Koch’s chapter in this volume.⁴³ Specifically, it has developed the Displacement Tracking Matrix (DTM).⁴⁴ The DTM is:

[A] system to track and monitor displacement and population mobility. It is designed to regularly and systematically capture, process, and disseminate information to provide a better understanding of the movements and evolving needs of displaced populations whether on site or en route.⁴⁵

The DTM was initially developed in Iraq in 2004 where it was used to inform needs assessment and monitoring activities pertaining to the enormous IDP population created by the US invasion of Iraq and the subsequent widespread conflict.⁴⁶ Through the DTM, IOM identifies and counts people as IDPs. IOM also determines, in cooperation with states, when individuals are no longer counted in the DTM, consequently implying that they are no longer IDPs, at least in the eyes of IOM.

Although IOM’s ‘permissive’ Constitution has some strengths, allowing it to engage in the wide varieties of activities as outlined above, it has drawbacks. Taken in the context of its historical status outside the UN, its tendency to engage in a diverse range of activities and its project-based funding model, IOM’s permissive Constitution has led to considerable confusion about the organization’s mandate and, by extension, its obligations, accountability, and ethos. The following sections will provide some clarity on these matters in respect to IOM’s work on internal displacement, through the analytical lens of the GPs.

12.4 IOM Policies and the GPs

This section identifies the manner and extent to which IOM engages with the GPs in its policies and frameworks. It does so, first, by mapping explicit references to the GPs in pertinent IOM documents. Five IOM policies and frameworks form the basis of this analysis, spanning the early 2000s to the present day. We examine the: (i) 2002 document, ‘Internally Displaced Persons: IOM Policy and Activities’; (ii) 2012 Migration Crisis Operational Framework; (iii) 2015 IOM Humanitarian Policy – Principles for Humanitarian Action; (iv) 2016 Framework on the Progressive Resolution of Displacement Situations; and (v) 2017 Framework for Addressing Internal Displacement. These have been chosen because they are the principal documents guiding IOM’s global approach to mobility and humanitarian action as applies to internal displacement. Second, it presents a critique of the extent to which these IOM policies and frameworks promote, in letter and ethos, the durable solutions approach that is central to the GPs.⁴⁷ A focus on durable solutions is apt given the centrality of this issue in the GPs’ approach to resolving internal displacement and, as will be shown, ‘resolving’ internal displacement is core to much of IOM’s work in respect to internal displacement.

12.4.1 Explicit Engagement

The IOM Executive Committee first considered IOM policy and practice in respect to IDPs in May 1997.⁴⁸ At this time, the GPs were in a developmental phase. Nonetheless, IOM used themes drawn from the then draft GPs to shape its ‘general principles and operational guidelines’ on internal displacement.⁴⁹ In its 2002 document, ‘Internally Displaced Persons: IOM Policy and Activities’ (‘the 2002 IOM Policy and Activities’), IOM made a series of affirmatory statements and commitments in respect to the GPs. IOM here recognised that the GPs ‘consolidate into one document the relevant rights and norms and state them in a way as to be specifically relevant to the situation in internal displacement’,⁵⁰ and that the GPs ‘thus provide a practical tool for implementation and should be closely followed in all programmes benefiting IDPs, and in all attempts to address the issue of displacement’.⁵¹ Crucially, it then states that ‘IOM has undertaken to promote and respect the GPs in its work, and to disseminate them as widely as possible’,⁵² with the then IOM Emergency and Post-Conflict Unit⁵³ tasked with ‘ensuring that IOM project proposals are consistent with the Guiding Principles’.⁵⁴

Since 2002, and especially in the past decade, IOM has published a plethora of policies and frameworks, many of general application and one in particular that is specific to internal displacement. Much of this policy development came in part as a consequence of a far-reaching review by the Swedish International Development Agency (SIDA) of IOM’s work in the field of humanitarian assistance.⁵⁵ In 2012, the IOM Council published its Member State-approved Migration Crisis Operational Framework (MCOF).⁵⁶ The MCOF ‘provides a reference frame for IOM’s response to the mobility dimensions of crisis situations’.⁵⁷ It was ‘developed at the request of IOM Member States, pursuant to their growing interest in the migration consequences of crisis situations’.⁵⁸ The overarching intention of the MCOF is to ‘allow IOM to improve and systematize the way in which the Organization supports its Member States and partners to better respond to the assistance and protection needs of crisis-affected populations’.⁵⁹

The MCOF is underpinned by ‘the migration crisis approach’.⁶⁰ IOM explains this approach as being more holistic than that offered by existing migration frameworks, which, in its view, do not comprehensively cover ‘all patterns of mobility during crises’ or ‘all those on the move during crises’.⁶¹ IOM thus seeks through the MCOF ‘to complement systems that privilege certain categories of affected populations through a focus on the vulnerability of a variety of people on the move and the affected communities’.⁶² Within the MCOF, IOM identifies what it calls the ‘[m]ost relevant frameworks and modalities for cooperation’.⁶³ The list is extensive, with reference made to, inter alia, the IASC cluster approach and the UNHCR,⁶⁴ the 1951 Refugee Convention and its associated 1967 Protocol,⁶⁵ and the Hyogo Framework for Action 2005–2015 on disaster risk reduction.⁶⁶ Yet, there is one glaring omission when the MCOF is viewed through the lens of internal displacement – there is no reference whatsoever to the GPs. This is despite, as discussed in Section 12.2, the GPs having been widely cited in international fora as the leading normative statement on minimum IDP protection and assistance standards.⁶⁷ Moreover, it is indeed highly curious to see the GPs neglected in the MCOF when the concept of a ‘migration crisis’ is intended to apply not only in cross-border contexts but also in relation to internal displacement⁶⁸ and, as discussed, IOM has advocated for the GPs to be ‘closely followed in all programmes benefiting IDPs, and in all attempts to address the issue of displacement’,⁶⁹ and has committed itself ‘to promote and respect the Guiding Principles in its work’.⁷⁰

This situation is then repeated in the 2015 IOM Humanitarian Policy – Principles for Humanitarian Action (‘the Principles for Humanitarian Action’).⁷¹ These Principles constitute ‘a key element of IOM’s efforts to prioritize policy development as part of its engagement to strengthen its humanitarian role’.⁷² They aim to ‘define IOM’s responsibilities vis-à-vis internationally agreed core humanitarian principles and to clarify its role at all levels’.⁷³ While the Principles for Humanitarian Action recognise IDPs (alongside refugees, asylum seekers and stateless persons) as being ‘covered by dedicated international protection frameworks and norms’,⁷⁴ and while ‘internal movements’ explicitly feature in the series of ‘operating contexts’ presented,⁷⁵ at no point are the GPs mentioned. This is in contrast to international humanitarian law and refugee law, which feature throughout.

Although neither the MCOF nor the Principles for Humanitarian Action contain any explicit reference to the GPs, the 2016 Framework on the Progressive Resolution of Displacement Situations (‘the PRDS Framework’)⁷⁶ does, albeit only in endnotes. It ‘aims to guide IOM and inform its partners to frame and navigate the complexity of forced migration dynamics and support efforts to progressively resolve displacement situations’.⁷⁷ The PRDS Framework explicitly cites the GPs on two occasions. It does so first by simply identifying them as an existing IDP durable solutions framework.⁷⁸ Second, and more importantly, it states that IOM’s ‘key programmatic principles’ are inspired by, inter alia, the GPs, in recognition of these as a ‘key international framework’.⁷⁹

Lastly, in 2017, IOM published its Framework for Addressing Internal Displacement (‘the 2017 Framework’).⁸⁰ This goes one step further than the PRDS Framework by recognising the GPs as ‘the most important international framework for the protection of IDPs’.⁸¹ The 2017 Framework lays out three key ‘Principles of Engagement’ – (1) primary responsibility of States; (2) grounded in prevailing principles, policies, and practices; and (3) people-centred.⁸² In respect to the second principle, IOM commits to its programmes and activities on internal displacement being ‘in line with prevailing normative and legal frameworks, including international human rights law, international humanitarian law, the Guiding Principles on Internal Displacement and relevant IASC-endorsed standards and practices’.⁸³ Additionally, the 2017 Framework asserts that it ‘consolidates its comprehensive and diverse programming on internal displacement’ under a series of operational objectives⁸⁴ that are ‘[i]n line with’ what it accurately identifies as the GPs’ goals. These are namely ‘to prevent conditions that might lead to internal displacement and to minimize its adverse effects when it does occur; to provide protection and assistance to IDPs during displacement; and to promote durable solutions’.⁸⁵ The 2017 Framework therefore not only contains several substantive and explicit references to the GPs but gives the GPs their due weight alongside other applicable frameworks. The 2017 Framework is indeed highly complimentary of the GPs, and respects that while the document itself is not legally binding, it nonetheless ‘consolidate[s] international legal norms found in existing treaties and conventions’.⁸⁶

Overall, despite the welcome publication of the 2017 Framework, it remains apparent that explicit reference and endorsement of the GPs is, despite promises made elsewhere, notably absent in key general (i.e. not IDP-exclusive) IOM policies and frameworks. Indeed, on the basis of this analysis alone, there is little evidence that IOM has, in the context of its internal policy-making processes, met its own commitment ‘to promote and respect the Guiding Principles in its work, and to disseminate them as widely as possible’.⁸⁷ However, this evidenced lack of explicit mention of the GPs does not necessarily mean that inconsistencies exist between IOM policies and frameworks and the content of the GPs. Equally, simply because there are references in support of the GPs in, for example, the 2017 Framework, does not guarantee that the content of such policies and frameworks is in accordance with the ethos and spirit of the GPs. Assessing whether IOM respects and ensures consistency with the GPs in its work requires a more substantive examination of the content of these documents, which is the focus of Section 12.4.2, and its field-based operations and approach, which is examined in Section 12.5.

12.4.2 Advancing the Pursuit of Durable Solutions?

This section will analyse the extent to which IOM’s policies and frameworks reveal an approach to resolving displacement that is compatible with the durable solutions approach laid out in the GPs, which has become the dominant approach internationally.

As outlined in Section 12.2 of this chapter, the GPs cover all phases of displacement. In respect to the post-displacement phase, Principle 28 is most relevant. Principle 28(1) states that ‘the primary duty and responsibility to establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily … or to resettle voluntarily’ lies with the competent authorities, with such authorities also expected to ‘endeavour to facilitate the reintegration of returned or resettled internally displaced persons’. Principle 28(2) then goes on to promote IDPs’ ‘full participation … in the planning and management of their return or resettlement and reintegration’.⁸⁸

Although the term ‘durable solutions’ does not feature in the GPs, the three durable solutions of ‘return, local integration in the locations where persons have been displaced, and resettlement in another part of the country’⁸⁹ are evident in Principle 28. In respect to return and resettlement, both of course explicitly feature. In respect to local integration, although there is no explicit mention of this in Principle 28, that return or resettlement be chosen voluntarily means IDPs cannot be forced, or in any way coerced, into further movement, whether onward or return, for the purpose of seeking a durable solution to their displacement. This therefore implicity includes local integration within the scope of Principle 28. Kälin confirms in the Annotations to the GPs that all three types of durable solution, including local integration, are indeed envisioned by the GPs.⁹⁰ It is also widely acknowledged, including by IOM,⁹¹ that the GPs endorse the three types of durable solutions, even if not explicitly or by that precise name.

The language of ‘durable solutions’ does feature in IOM policies and frameworks. For instance, in the MCOF and the Principles for Humanitarian Action, there is explicit mention of ‘advocating for’,⁹² ‘laying the foundations for’,⁹³ ‘allowing’⁹⁴ and ‘promoting’⁹⁵ durable solutions. While IOM itself does not unequivocally define ‘durable solutions’, it does refer, namely in the PRDS Framework⁹⁶ and the 2017 Framework,⁹⁷ to the three solutions of return, resettlement and local integration as featured in the GPs and elsewhere. Yet, despite this, it is nonetheless apparent that IOM policies tend towards supporting the mobility-related solutions of return and resettlement. For example, in the MCOF, although there are several references to ‘(re)integration support’,⁹⁸ these typically appear in the context of securing sustainable return.⁹⁹ ‘Local integration’ is in fact explicitly mentioned only once, and this is in respect to refugees.¹⁰⁰ This focus on return and resettlement is also implicit at other points throughout the MCOF, for example, in respect to health, when it is stated that IOM ‘provide[s] comprehensive migrant health-care and prevention services … at the pre-departure stage, during travel and transit and upon return’.¹⁰¹ It is additionally revealed by IOM’s promise to ‘improve living conditions of displaced persons and migrants in transit, by … advocating for durable solutions and ensuring organized closure and phase-out of camps’.¹⁰² This thus seemingly closes off any possibility of a ‘local integration’ durable solution to displacement in a camp-based setting, for instance, through the transformation of camps into permanent residential districts.

This mobility-centred approach is even more explicit in the 2016 PRDS Framework, which provides an intriguing insight into IOM’s approach and underlying ethos in respect to resolving displacement. The PRDS Framework expresses concern that ‘the growing complexity and unpredictability’ of migration crises ‘challenge[s] the versatility of the three traditional durable solutions – voluntary return and sustainable reintegration, sustainable settlement elsewhere and sustainable local integration’.¹⁰³ Indeed, the very existence of the PRDS Framework reveals unease on the part of IOM with the definition of a durable solution as presented by the IASC and/or the idea that the achievement of a durable solution is determinative of when displacement ends. The 2010 IASC Framework on Durable Solutions for Internally Displaced Persons (‘IASC Framework’)¹⁰⁴ defines a durable solution, and thus the end of displacement, as ‘when IDPs no longer have any specific assistance and protection needs that are linked to their displacement and such persons can enjoy their human rights without discrimination resulting from their displacement’.¹⁰⁵ The PRDS Framework instead proposes a ‘resilience-based approach’ aimed towards progressively resolving displacement situations.¹⁰⁶ As explained by IOM, ‘[m]obility can be a crucial component of resilience’,¹⁰⁷ thus, mobility lies at the core of the PRDS’ mission statement to ‘maximize opportunities that employ mobility strategies to foster the resilience of displaced populations’.¹⁰⁸ It is argued that the PRDS Framework therefore ‘embraces broader, more inclusive approaches which integrate mobility dimensions’,¹⁰⁹ and that as a framework it complements the three durable solutions of local integration, return and resettlement.¹¹⁰ Although a detailed critique of the PRDS Framework lies beyond the scope of this chapter, when viewed through the lens of the GPs, it is telling to see the weight given to mobility. Even though IOM asserts its approach as being complementary to the three durable solutions approach, the PRDS Framework says nothing that encourages or respects local integration as a possible solution to internal displacement. Moreover, it is concerning that, aside from IOM stating that it ‘recognizes those affected by crisis and displacement as central actors and agents in finding their own solutions’,¹¹¹ and calling in its PRDS key programmatic principles to ‘[s]upport the freedom of choice of affected persons to identify appropriate solutions…’,¹¹² the language of ‘voluntariness’ is noticeably sparse throughout.¹¹³

In sum, while the GPs and other associated frameworks embrace a durable solutions approach that views such solutions as not being exclusively mobility-related, IOM’s approach appears to favour mobility-related solutions to internal displacement. The PRDS Framework in particular articulates a view that is clearly critical of the durable solutions framework espoused by the GPs. This focus on mobility is perhaps understandable in the light of IOM’s own expertise.¹¹⁴ Indeed, the MCOF proclaims IOM’s ‘unique expertise in the transportation of beneficiaries in emergency (evacuation) and post-crisis (resettlement or return) situations’,¹¹⁵ and it is mentioned in the Principles for Humanitarian Action that ‘IOM Member States recognize IOM’s comparative advantage in addressing the mobility dimensions of crises’.¹¹⁶ It nonetheless calls into question the adherence of IOM policies and frameworks with the GPs, as well as IOM’s stated commitment to respect and ensure consistency with the GPs in its work.¹¹⁷

Even more importantly, however, it raises concerns in respect to voluntariness. Any imbalance in the emphasis placed on mobile and non-mobile means by which to resolve displacement risks undermining ‘free choice’ on the part of IDPs.¹¹⁸ A ‘free choice’ in this context draws legally binding force from the right to liberty of movement and freedom to choose one’s residence, as articulated throughout international human rights law.¹¹⁹ To realise a ‘free choice’ requires the availability of feasible options¹²⁰ – a choice to return or resettle cannot be deemed freely-made when decided in the context of unbearable local conditions or when IDPs perceive local integration to not be an option. Moreover, the IASC Framework tells us that further movement, whether onward or return, by an already displaced individual is not required to resolve displacement.¹²¹ Indeed, to in any way coerce onward movement would be to subject IDPs to secondary displacement. It is therefore to some extent reassuring to see IOM caveat its embrace of mobility strategies to those that ‘suppose progression towards resolving displacement, while ensuring safety nets are in place to avoid potentially harmful mobility strategies’,¹²² which could for instance include coercion into smuggling. Extreme caution must nevertheless be taken to ensure that any institutional preference for mobility, even if based on a well-founded belief in the beneficial role that further movement can play in ultimately resolving displacement, does not undermine the paramount principle of voluntariness that lies at the heart of the durable solutions model.¹²³

Having established the extent to which IOM policies and frameworks explicitly refer to the GPs and reflect their durable solutions approach, this chapter now shifts the focus to IOM’s field-based practice. Specifically, Section 12.5 examines IOM’s in-country operations and approach to internal displacement in Haiti and Iraq, doing so once again through the analytical lens of the GPs.

12.5 Putting the GPs into Practice?

12.5.1 Experiences in Haiti

IOM has a long history of activities in Haiti. From 1994 onwards it was involved in a wide variety of activities including community stabilization, border management, responding to disasters such as Tropical Storm Jeanne and the massive flooding in Fonds-Verettes, and facilitating returns.¹²⁴ The focus of this section is on IOM’s 2010 response to the 7.0 magnitude earthquake that hit Haiti on 12 January 2010. This focus is justified for four main reasons. First, the disaster was enormous in scope – it killed more than 100,000 people, destroyed some 300,000 homes, and displaced over 1.5 million people into 1,555 camps at the peak of the crisis.¹²⁵ In fact, it was the worst disaster to hit the Western hemisphere in recorded history.¹²⁶ As such it has been widely studied and there are ample reports of IOM’s operations at that time.¹²⁷ Second, it represented one of IOM’s biggest ever missions – not only in Haiti but globally. At its peak, IOM had almost 100 international staff in Haiti and more than 600 Haitian employees, making it one of the largest teams in the earthquake zone.¹²⁸ Third, the Haitian operation was in response to a disaster, which, as set out in Section 12.3 is one of the major niches that has been carved out by IOM. Fourth, as aforementioned, many from the displaced population crowded into camps. Camp coordination and camp management in disaster contexts is IOM’s responsibility under the cluster system; hence IOM was the major player in Haiti at that time.

After the earthquake hit Haiti, IOM mobilised and began deploying resources within 24 hours.¹²⁹ IOM engaged in a wide variety of crisis response efforts including distributing shelters and ‘non-food items’, constructing emergency water and sanitation facilities, and responding to the autumn 2010 cholera outbreak.¹³⁰ Moreover, IOM was one of the largest recipients of funding in the entire international community’s response to the earthquake.¹³¹ However, its main activities focused on camp coordination/camp management and facilitating camp closures, activities in which its data collection and management work, thought the DTM, figured centrally. These two facets of IOM’s work in Haiti will be analysed in turn, with a view to determining to what extent IOM’s work abided by the GPs.

12.5.1.1 Camp Coordination and Camp Management

As cluster lead, IOM coordinated the actors working in the camps and attempted to manage the provision of basic services in the camps. The scale of IOM’s tasks in Haiti was colossal. As aforementioned, there were over 1.5 million IDPs living in 1,555 camps at the peak of the crisis. These camps varied enormously in size and logistics – ranging from massive sites at the airport to smaller clusters of tents on hillsides and crammed alongside flattened buildings. Conditions were dire, with residents struggling to find access to adequate water, food, sanitation, shelter, and security. In addition, IOM was responsible for coordinating the hundreds of NGOs and UN agencies working in the camps. However, the camp population did not represent Haiti’s total IDP population. Many displaced Haitians did not shelter in camps but pursued other options such as moving in with friends or family, and many of these people also needed assistance.¹³² Yet international actors and the Haitian government focused almost exclusively on camps, and this is where the most data collection happened.

IOM’s work in the camps was commendable in many respects. IOM teams carried out daily camp management operations making sure that basic services were provided, including distribution of non-food items; camp infrastructure improvement; referral of vulnerable cases to health and protection partners; support to statistical data collection; support to cholera response operations in camps; and emergency response (e.g. during Hurricane Tomas and several other storms).¹³³ In addition, IOM identified the protection of women, children, elderly people with special needs, and people with disabilities and health conditions as a priority within its relief strategy.¹³⁴ This approach aligns with Principle 4 of the GPs, which identifies such categories of individuals as meriting protection and assistance that takes account of their special needs.

Yet IOM’s focus on camp-based IDPs was problematic in three main respects. First, the camp-based focus gave the impression that to be an IDP, one must live in a camp.¹³⁵ Viewed from the perspective of the GPs, this is simply not true. The GPs’ description of IDPs sets out just one geographic limitation on who can be an IDP – they must not have crossed an international border. Hence an individual can, in principle, be an IDP regardless of where they find themselves in their state, be it within an IDP camp or elsewhere. In fact, not only did IOM focus on camps, but it also seemed to exclude smaller camps from its remit. As aforementioned, IOM’s DTM is its main tool for assessing IDP figures, which in turn plays a huge role in designing its IDP-related programmes. During IOM’s Haiti operations, very small or far-flung camps could slip under the DTM radar, leaving their residents with little aid (and those living outside the camps often with even less). Thus, IOM’s camp focus was criticised by the then UN Special Rapporteur on IDPs, Chaloka Beyani:

The Special Rapporteur makes the case for the need for a comprehensive profiling exercise for the overall displaced population, the location of those IDPs, both in and outside camps, and their specific needs. He considers the absence of such profiling and needs assessment (with disaggregated data) to be a handicap to formulating evidence-based, durable solutions, having regard to the causes and magnitude of internal displacement (i.e. the earthquake and other causes of displacement) and, most importantly, their consequences on the human rights of IDPs.¹³⁶

Second, although IOM’s lead role in the CCCM cluster might explain its focus on IDPs in camps, the cluster mandate does not limit the organization from assisting IDPs who live outside the camp environment. In addition, as set out in Sections 12.3 and 12.4, there is nothing in IOM’s mandate or in its policy documents that limits its role to camp-based IDPs. IOM could have assisted those in camps while at the same time offering assistance to the many IDPs who lived outside camps. Moreover, IOM’s focus on camp-based IDPs may have violated Principle 4 of the GPs, which states that the GPs shall be applied ‘without discrimination of any kind’, providing a non-exhaustive list of grounds for discrimination. Thus, IOM’s policy of conditioning much of its assistance based on residency in a camp not only misrepresented who is an IDP in Haiti but was also potentially discriminatory vis-à-vis non-camp-based IDPs.

12.5.1.2 Camp Closures

As outlined in Section 12.4, IDPs have achieved a durable solution when they ‘no longer have specific assistance and protection needs that are linked to their displacement and such persons can enjoy their human rights without discrimination on account of their displacement’.¹³⁷ The GPs foresee three means by which a durable solution can be achieved: (1) return voluntarily, in safety and dignity, to their homes or places of habitual residence; (2) local integration; or (3) voluntary resettlement in another part of the country. Special efforts should be made to ensure the full participation of IDPs in the planning and management of their return or resettlement.¹³⁸

It is important to acknowledge here that the concept of ‘durable solutions’ was particularly difficult to deploy in the context of the Haitian earthquake. This was because of the conditions in Haiti, and Port-au-Prince in particular, that preceded the earthquake. Many Haitians were extremely poor, and they often changed their places of residence because of massive tenure insecurity, high rents, and lack of accessible shelter. Against this background, understanding the meaning and application of the IDP concept and the idea of ‘durable solutions’ was a challenge for all humanitarian actors, including but not limited to IOM.¹³⁹

IOM’s approach to durable solutions focused predominantly on camp closures. As the emergency response wound down, IOM’s work shifted to shutting camps and supporting the progressive resolution of the IDP situation. Camp closures were pursued because of the dire conditions and/or lack of services in many camps and the fact that they were often erected on important public spaces, flood-prone areas and/or on private property.¹⁴⁰ In addition, the Haitian government was determined to see the camps closed and thus painted the camp-based IDPs as opportunists who wanted to take advantage of the aid system.¹⁴¹

IOM employed various approaches to facilitate camp closures, some of which arguably assisted former camp residents to find a durable solution. It helped displaced landowners who lost their homes by building temporary shelters on their properties.¹⁴² It also provided more modest support for the reconstruction of permanent homes, and its legal team attempted to mediate land disputes and support the negotiation of land tenure agreements.¹⁴³ Yet these initiatives left out the majority of IDPs without property on which to rebuild. The main mechanism by which IOM facilitated camp closures was the provision of a cash grant to former camp residents to support the cost of one year’s rental accommodation.¹⁴⁴ In many cases, the grant was supplemented by training and skills development programmes and other forms of (admittedly modest) reintegration assistance.¹⁴⁵

However, these approaches did not always assist IDPs to achieve durable solutions in practice. They helped some IDPs but for many these approaches did not enable durable solutions or even sustainable progress towards them. Given the high costs of rent in Haiti some did not want to leave the camp environment at all but were forced to do so.¹⁴⁶ Many of these IDPs could not secure rental accommodation and had to relocate to temporary settlements and/or buildings that were not structurally safe, with many living in worse conditions than they were in before the earthquake struck.¹⁴⁷

IOM’s approach towards durable solutions thus suffered from major shortfalls. By heralding camp closures as the yardstick by which to measure progress,¹⁴⁸ IOM seemed to lose focus on the actual outcomes for the IDPs themselves. In the words of Chaloka Beyani:

Durable solutions are reached only when the needs related to displacement no longer exist, which is a medium-to-long-term complex development-led process for all IDPs and not just those living in camps or sites. Therefore, the closure of camps by itself does not mean that durable solutions for IDPs have been found.¹⁴⁹

A more accurate indicator of progress would have been based on the durable solutions evident in the GPs: the numbers of individuals who had returned voluntarily to their homes, resettled voluntarily in another part of the country and/or integrated locally. In addition, the focus on the closure of camps as an indicator of whether displacement had ended entirely neglected the experiences of those who did not live in camps. Finally, the forced closure of the camps seems to have violated Principle 28 of the GPs, which emphasises that IDP return or resettlement must be voluntary. It might also have violated Principle 6 of the GPs which states that ‘every human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence’. Rather than contribute to a durable solution, camp closures in many cases fuelled continued displacement.¹⁵⁰

To conclude, IOM should be credited for its swift response to the Haitian earthquake and its focus on particularly vulnerable IDPs. However, its focus on IDPs in camps was ‘practically and morally unsustainable’¹⁵¹ and its adherence to the GPs – particularly regarding who it considered to be an IDP and its approach to durable solutions – is unsatisfactory. As neatly summed up by Bradley:

[A]lthough IOM supports the Guiding Principles on Internal Displacement, in its data collection work in post-earthquake Haiti, IOM’s implementation of the Displacement Tracking Matrix focused predominantly on IDPs resident in camps. This perpetuated the perception that, despite the broader conceptualization of internal displacement in the Guiding Principles, IDPs in Haiti were simply those resident in camps, and that closing camps was tantamount to resolving the IDPs’ predicament.¹⁵²

Having examined IOM’s in-country operations and approach in the Haitian disaster setting, the next section will focus on internal displacement in conflict contexts by way of a case study of Iraq.

12.5.2 Experiences in Iraq

Forced displacement has been an enduring feature of Iraqi life for many decades.¹⁵³ Iraq has experienced several significant waves of displacement, both internal and cross-border.¹⁵⁴ These waves can perhaps be best categorised into three ‘epochs’.¹⁵⁵ Throughout the second half of the twentieth century and up to 2003, displacement was ‘an instrument of rule in the hands of Iraq’s Ba’athist regime’,¹⁵⁶ utilised to effect ethnic cleansing and ultimately strengthen State control over a disempowered population.¹⁵⁷ Post-2003 and the fall of Saddam Hussein, displacements not only continued but expanded to cover the entire Iraqi State,¹⁵⁸ driven by intense sectarian fighting and generalised violence.¹⁵⁹ Most recently, unprecedented mass displacement was triggered by the advance of the self-proclaimed Islamic State in Iraq and the Levant (ISIL) and the ensuing conflict against ISIL.¹⁶⁰ Internal displacement in Iraq thus contrasts with that in Haiti in several ways. Most important of these differences is that displacement in Iraq is predominantly a consequence of armed conflict, generalised violence, and political and religious persecution,¹⁶¹ rather than disaster induced. It is also important to note that the majority of IDPs in Iraq reside in non-camp, urban and peri-urban settings,¹⁶² within or alongside host communities.¹⁶³

The search for durable solutions in Iraq is complicated by several factors. First, Iraq faces ongoing insecurity and political instability. History shows that any cessation of hostilities and consequent reductions in internal displacement rates are often short-lived.¹⁶⁴ No sooner does one wave of displacement slow and people begin to rebuild their lives, then further waves commence, with individuals often displaced multiple times.¹⁶⁵ Second, displacement is not a single issue event in Iraq – its multiple displacement epochs are in many ways distinct in respect to their causes, yet they overlap temporally as displacement becomes protracted.¹⁶⁶ Third, displacement in Iraq is underpinned and exacerbated by ethnic and sectarian tensions, with the State having become increasingly fragmented along such lines.¹⁶⁷ Fourth, internal displacement is interwoven with the wider regional context. Displacement in Iraq cannot be viewed as distinct from, for example, the situation in Syria.¹⁶⁸ This is especially so given that many previous Iraqi refugees in Syria have been forced to return, yet, being unable to return to their former places of residence, are now internally displaced within Iraq.¹⁶⁹ Fifth, and finally, the Iraqi authorities have demonstrated an ambivalent attitude towards durable solutions other than return, particularly in respect to local integration. Despite an apparent shift in 2011 towards accepting settlement options other than return,¹⁷⁰ in 2016, the UN Special Rapporteur on IDPs reported ‘a lack of dialogue with or willingness on the part of the Government to pursue local integration, which it currently does not consider as a viable alternative to returns’.¹⁷¹ In 2020, IOM itself asserted that ‘the national [government] priority for durable solutions remains the return of IDPs’, and that coerced returns have occurred against this backdrop.¹⁷² Khedir has similarly argued that the ‘social integration of IDPs is by no means a government policy/priority’,¹⁷³ citing the absence of social integration from the mandates of relevant government institutions.¹⁷⁴ Khedir identifies this as being in part a consequence of an ‘ominously pervasive’ preference for return among authorities and host communities,¹⁷⁵ but also ‘an obvious lack of a policy concept and tradition of social integration in Iraq’.¹⁷⁶ Khedir notes fear of demographic change (and the associated impact this might have on election constituencies), security concerns, and the perceived economic burden of displacement on host locations all as reasons for such a strong focus on return.¹⁷⁷

IDPs’ durable solutions intentions have shifted markedly over time. According to IOM data, the number of IOM-assessed IDPs expressing a desire to integrate locally increased from 25% in 2006, to 37% in 2010, and then 44% in 2011.¹⁷⁸ In 2016, a survey of IDPs living with host families revealed that the vast majority of those surveyed, 97.6%, indicated that they intended to return.¹⁷⁹ The trend has seemingly since again reversed as, in 2019, the percentage of IDPs not intending to return in the short- and long-term was 90% and 70%, respectively.¹⁸⁰ IOM has found that intentions often depend upon, and shift with, the prevailing security situation, the availability of basic services, and the degree to which IDPs feel settled in their place of displacement.¹⁸¹

It is within this complex context that international organizations in Iraq operate. Alongside UNHCR, IOM performs a leading role in addressing internal displacement.¹⁸² Since commencing operations in 2003, IOM Iraq has established a presence in all 18 Iraqi governorates.¹⁸³ Its work extends across multiple diverse areas, broadly categorised under the headings of humanitarian emergencies and operations, recovery and community stabilisation, migration management, and migration and displacement data.¹⁸⁴ In respect to the latter, IOM’s DTM is recognised as the primary means by which to track displacement movements in Iraq.¹⁸⁵ Aside from the DTM, IOM Iraq has invested substantial energy into internal displacement research. This includes empirical work to measure IDP needs and intentions in respect to durable solutions,¹⁸⁶ and to ‘better understand the progress IDPs are making toward durable solutions and the end of displacement among IDPs’.¹⁸⁷

Viewing this activity through the lens of the GPs and the framing of durable solutions, it is evident that operationally – as in Haiti – IOM is predominantly concerned with returns. This manifests itself in two main ways. First, assisted voluntary return and reintegration activities are at the core of IOM’s migration management work stream.¹⁸⁸ Since 2016, IOM has chaired the Returns Working Group (RWG), which has ‘invested considerably’ in sustaining IDP return levels in Iraq.¹⁸⁹ The RWG develops guidance, policies and operational recommendations for governorates affected by returns; provides technical advice to support the implementation of IDP returns; and determines to what extent returnees have, in its view, achieved durable solutions. Second, since 2007, the DTM has recorded not only instances of displacement as they occur, but also IDP and refugee returns.¹⁹⁰ The DTM includes a sophisticated returns dashboard that records numbers of returnees, disaggregated and ranked by, inter alia, location, time period and shelter category.¹⁹¹ In contrast to this dedicated work on returns, local integration is not core to IOM Iraq’s functions or expertise. Moreover, while the DTM tracks return, the same cannot be said for other means by which to achieve a durable solution, including local integration.

This is not, however, to say that IOM Iraq is exclusively concerned with returns. In 2013, for example, IOM Iraq partnered with the Internal Displacement Monitoring Centre (IDMC) and the Brookings-LSE Project on Internal Displacement to conduct research into the experience of IDP integration.¹⁹² This research sought to provide ‘a fresh look into the issues pertinent to the integration of IDPs in Iraq’, by ‘explor[ing] the causes and effects of displacement and integration, so that the perceived benefits can be exploited and the barriers to integration identified and mitigated’.¹⁹³ The research drew upon pertinent international standards on durable solutions, including the IASC Framework, in its analysis. This is important because conceptualising local integration through the lens of the IASC Framework demonstrates support for local integration as a valid means by which to achieve a durable solution.¹⁹⁴ The research concluded with a clear statement in support of local integration, that it is ‘of critical importance that the Government of Iraq and the international community redouble their efforts to help facilitate local integration’.¹⁹⁵ More recently, IOM Iraq has conducted further research into local integration as a durable solution in Iraq. This includes a 2019 study in the Sulaymaniyah and Baghdad Governorates, titled ‘Reasons to Remain’;¹⁹⁶ and the 2020 study, ‘Cities as Home’, which examined conditions and prospects for local integration across several localities in Iraq.¹⁹⁷ In 2021, IOM Iraq unequivocally recognised that a durable solution can be achieved through ‘integration in locations of displacement’.¹⁹⁸

This embrace of the IASC Framework and local integration as a means by which to achieve a durable solution is also evident in ongoing IOM Iraq research. Since 2016, IOM Iraq has partnered with Georgetown University to conduct a longitudinal mixed-method study, titled ‘Access to Durable Solutions among IDPs in Iraq’ (‘the IOM-GU study’).¹⁹⁹ This research involves tracking 4,000 Iraqi IDP households, all of whom were displaced by ISIL to non-camp settings between January 2014 and December 2015, over several years.²⁰⁰ The purpose of the research is to understand how these households progress towards achieving a durable solution to their displacement.²⁰¹ It does this by ‘examining the ways in which Iraqis themselves seek durable solutions’,²⁰² using data collected through quantitative surveys and interviews with IDPs, host communities, relevant authorities, and others.²⁰³ The IOM-GU study ‘relies on [the IASC Framework] as an analytical frame for assessing IDPs’ access to durable solutions in Iraq’.²⁰⁴ This is an explicit recognition of the IASC Framework as ‘the principal point of reference for understanding the process of achieving durable solutions’,²⁰⁵ and ‘the primary international standard for supporting and assessing durable solutions’.²⁰⁶ The study’s findings are presented against each of the eight durable solutions assessment criteria outlined in the IASC Framework.²⁰⁷

Yet, it would be erroneous to conclude that IOM Iraq’s approach towards durable solutions fully aligns with that found in the IASC Framework. Even in respect to IOM Iraq’s research into local integration, a preference for return still filters through. For instance, within the 2013 research on barriers to integration, a tendency remains towards conceptualising and thus implicity promoting return as the primary means by which to achieve a durable solution in Iraq. The report does this through its framing of local integration as an option that is secondary to return. This is especially evident when it states:

IDPs are not able to consider return as a safe option and a means of achieving a durable solution to their displacement because the security conditions do not allow this. Those that remain displaced are left with two remaining options. The intentions of the displaced are now, predominantly, to integrate.²⁰⁸

This perspective on local integration contrasts with the IASC Framework approach, which unequivocally espouses the equality of all three means by which to achieve a durable solution. It also fails to recognise that any decision to pursue a durable solution by a particular means can only be considered voluntary if IDPs have a real choice between all three options. It is nonetheless positive to see the views of those affected by displacement at the core of IOM Iraq’s research, particularly the ongoing IOM-GU study. This reveals respect within IOM Iraq’s research activities for the principle of voluntary choice and for the active participation of IDPs themselves in the pursuit of durable solutions to their displacement, as well as learning being guided by IDPs as experts in their own experience. It remains to be seen whether this approach as manifest in IOM Iraq’s recent research outputs will feed into practice on the ground.

In sum, IOM Iraq evidently embraces durable solutions, including local integration, in its research activities, yet its operations remain predominantly concerned with return. This reflects IOM’s traditional expertise in managed mobility. When viewed through the lens of the durable solutions approach, the conceptual shift initiated by the GPs and made explicit in the IASC Framework has thus far not been fully realised in IOM’s in-country operations on internal displacement, in either Iraq or Haiti. In other words, its actual implementation of durable solutions in practice is limited. It is of course true and right to acknowledge that IOM, as an international organization, cannot alone achieve durable solutions for IDPs – indeed, the primary responsibility for doing so remains with States. IOM nonetheless has the ability and the means by which to influence States. Yet, IOM has to date often been highly deferential and reluctant to actively push States on human rights principles. It is time for IOM to use its, perhaps uniquely close, working relationship with States to positively pursue durable solutions in the States in which it operates. This is especially important given that IOM is no longer, if ever it was, a small, niche operator – as argued at the beginning of this chapter, IOM might very well be the major player in the international community’s response to internal displacement. Relatedly, IOM’s responsibility extends to all IDPs regardless of their relative mobility.

12.6 Conclusion

IOM has obligations under international human rights law and international humanitarian law, many of which are reflected in the GPs. There are limited channels available to ensure that IOM is compliant with these obligations, including in relation to its responses to IDPs and particularly vis-à-vis the struggle to achieve durable solutions to internal displacement. It is therefore particularly important that the academic community scrutinises the extent to which IOM engages with the GPs both in principle and in practice.

This chapter has taken the first important steps in addressing this gap in the research. Its central argument is that IOM’s activities are inconsistent in many ways with both the letter and ethos of the GPs. For example, some of IOM’s policies and frameworks not only neglect to refer to the GPs but are also inconsistent with the GPs in terms of content. Inconsistencies also exist between the GPs and IOM’s operations in practice, as evidenced by IOM’s almost exclusive camp-based focus in Haiti and its predominant preference for return as a durable solution to internal displacement in both Haiti and Iraq. IOM’s future policies and frameworks need to make explicit reference to the GPs, which should in turn feed into how these policies and frameworks are implemented on the ground.

It is difficult to understand why IOM pays such little attention to the GPs. This may stem from a lack of external pressure on IOM; IOM’s lack of a formal protection mandate for IDPs; the fact that the GPs are technically a non-binding, soft law document; and/or practical difficulties faced by IOM, for example in contexts where the State vocally prefers returns. The reasons behind why IOM has not substantially engaged with the GPs are outside the scope of this chapter and remain important questions for further research. It is indeed hoped that this chapter is just the beginning of a new conversation of IOM’s engagement with the GPs and of its substantial role in internal displacement contexts worldwide.

13 IOM’s Immigration Detention Practices and Policies Human Rights, Positive Obligations and Humanitarian Duties

Angela Sherwood , Isabelle Lemay , and Cathryn Costello ^*

13.1 Introduction

IOM’s activities around immigration detention raise serious questions about its role in enabling, obscuring and even actively perpetrating serious human rights violations, in particular given its foundational role in Australian offshore detention in Nauru and Manus Island (Papua New Guinea) from 2001 to 2007. This chapter attempts to trace IOM’s practices and policies on immigration detention from the 1990s to date, identifying significant shifts, both normative and operational. Normatively, as other chapters in this volume also explore, IOM now generally speaks the language of human rights to states, and acknowledges that it itself has human rights obligations as an international organization (IO). As regards detention in particular, we trace the shift from a tendency to evade legal constraints by falsely claiming its detention practices were not detention at all, to a position today where IOM not only purports to respect international law on detention, but also to minimise detention, encouraging states to adopt ‘alternatives to detention’ (ATDs).¹ Focusing on ATDs emerged via global advocacy,² which has been adopted by both UNHCR³ and IOM.⁴

We also trace significant shifts in operational practice: from a role where it actively engages in detention practices and diffuses them, to its contemporary statement that its activities ‘strictly exclude any participation in the running or managing of detention facilities’.⁵ IOM currently frames its role in and around immigration detention as ‘humanitarian’, claiming to simultaneously improve conditions in detention and minimise detention. A large part of IOM’s activities around detention relate to its central global role in offering assisted voluntary return (AVR)⁶ services to those in detention,⁷ a linkage we problematise.

Part I (Section 13.2) begins by briefly recapitulating the pertinent international human rights law (IHRL) on migration-related detention, noting both regional variations and imbrication with questions of migration status. Part II (Section 13.3) then briefly examines IOM’s normative statements on immigration detention,⁸ arguing that it typically emphasises states’ ‘prerogative’ to detain, and often frames alternatives as an option rather than a legal obligation. It also tends to weave in its distinctive role in AVR into its policy documents. Part III (Section 13.4) then turns to IOM’s past and current roles in relation to immigration detention by means of four critical case studies: IOM’s involvement in US interdiction and detention of protection seekers on its military base in Guantanamo Bay, Cuba (1990s–early 2000s); in Australian-sponsored offshore detention in Nauru and Manus Island (Papua New Guinea) (2001–2007); in Indonesia (2000–present); and in Libya (2007–present). These cases reveal its changing role not only as regards detention, but its part in the global system whereby powerful states and regions (US, Australia, EU in particular) deflect and deter protection seekers by seeking to contain them ‘elsewhere’.⁹

Drawing on Parts II and III, in Part IV (Section 13.5) we suggest that while the transformations in both policy and practice might seem to be coherent, the emergent picture is more complex and concerning. Living up to both IHRL and humanitarian obligations when working with arbitrarily detained populations is challenging. The lack of accountability mechanisms to deal with IOM’s human rights violations overshadows any positive assessment of its current approaches. There are still many individuals who live with the enduring consequences of the inhuman and degrading conditions and treatment in Nauru and Manus Island in particular. Moreover, its current practices, although not actually establishing detention facilities and detaining people, also raise serious questions about complicity in serious violations, a legally complex matter. Concerning humanitarian obligations, we contrast IOM’s opacity around detention with that of other humanitarian organizations, arguing that, without deeper critical reflection, its contemporary practice risks expanding and legitimating detention. In particular, we identify tensions around IOM’s espousal of ATDs and its own AVR and other operational programming, which risk lending both practical support and legitimacy to arbitrary detention and other human rights violations.

In the Conclusion, we suggest that attention to detention practices and policies reveals the need for IOM constitutional and institutional reforms. Constitutional reforms are required to enable IOM to properly advocate for and ‘protect’ those subject to the human rights violation of arbitrary detention, and to offer effective remedies against its own violations. Furthermore, IOM’s constitutional deference to states’ immigration laws needs reconsideration.

13.2 Immigration Detention and International Human Rights Law

This chapter proceeds from the premise that IOM has human rights obligations in virtue of its legal nature as an IO, deriving from general international law, its own internal policies and the international agreement it entered into with the UN in 2016 (‘the 2016 Agreement’).¹⁰ The 2016 Agreement obliges IOM to have ‘due regard’ to human rights in its activities.¹¹ While a ‘due regard’ obligation may have its limitations, when read contextually, this is a sound endorsement of IOM’s existing human rights obligations.¹² IOs’ human rights obligations include various positive obligations,¹³ including to provide effective remedies.¹⁴ Although IOs do not routinely acknowledge or institutionalise this obligation, the argument to do so is legally compelling.¹⁵ Humanitarian obligations often overlap with human rights, although both systems have different genealogies and logics.¹⁶ When IOs style their activities as humanitarian, they may bind themselves legally as well as ethically to prioritise the alleviation of human suffering and respect other humanitarian principles in their activities.¹⁷

Immigration detention is not in itself a human rights violation. International human rights law (IHRL) permits immigration detention, albeit subject to strict conditions set out in international human rights treaties of global scope, notably the International Covenant on Civil and Political Rights (ICCPR) and regional human rights treaties. There are significant variations across regional human rights systems on how immigration detention is treated.¹⁸ Notably, while the European Court of Human Rights (ECtHR) has treated immigration detention as a ‘necessary adjunct’ of the power to control admission, the Inter-American Court has taken a different approach, giving greater effect to the presumption of liberty of the individual irrespective of migration status.¹⁹ Of great import is the impact of the Convention on the Rights of the Child (CRC), which greatly limits detaining children on immigration grounds.²⁰ International refugee law protects asylum seekers and refugees from penalisation for irregular entry and stay,²¹ and the principle of non-penalisation also protects other categories of vulnerable migrants, including those who have been smuggled and victims of trafficking.²² It is also important to note that IHRL not only prohibits arbitrary detention, but also unjustified restrictions on internal mobility, and indeed on the right to leave any country (including one’s own).²³

IHRL only permits detention in defined circumstances. There are only limited acceptable grounds for detention relating to states’ migration control prerogatives, both to control entry and deport unwanted foreigners. IHRL demands that state actions be ‘in accordance with law’. This is a quality-of-law standard, requiring a particular standard of predictability and clarity in the legal standards and judicial supervision. In order to ensure that the detention in question is linked to an acceptable ground, IHRL generally requires that states demonstrate that the detention is necessary in the particular case, or at least that it is reasonable or non-arbitrary in light of the aim pursued.²⁴ Crucially, detention must be open to challenge before domestic courts. To demonstrate the necessity of detention, authorities must show that there are no alternative means suitable to achieve the same aim, which entails a positive duty to make this assessment, and even establish such policies and practices. This assessment of ATDs requires states to create alternative means of ‘managing migration’. While ATDs may be seen as part of a strategy to minimise detention – as many commentators have identified – in practice, some ATDs themselves are highly coercive and restrictive, and may entail other human rights violations, including of the rights to liberty and free movement.²⁵

There are also important IHRL standards that relate to detention conditions. IHRL requires detention conditions that are appropriate for immigration detention. Evidently, conditions must not entail torture, inhuman or degrading treatment. Furthermore, IHRL prescribes more demanding standards, above this threshold of bare humanity. For example in Saadi v United Kingdom,²⁶ the ECtHR stipulated that ‘the place and conditions of detention should be appropriate’, bearing in mind that ‘the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country’; and the ‘length of the detention should not exceed that reasonably required for the purpose pursued’.²⁷ This final stipulation means that detention should never be indefinite, and that whether detention should continue depends on an assessment of its necessity for the official purpose in question.

The assessment of any detention practice under IHRL depends on questions of migration status and nationality, in particular with respect to who is regarded as irregular in their entry and residence. In practice, people may be wrongly deemed ‘irregular’ who ought to be recognised as having a right to stay, whether deriving from international or domestic law. The overarching concept of ‘international protection’ cuts across the refugee/migrant binary. As UNHCR puts it:

The need for international protection arises when a person is outside their own country and unable to return home because they would be at risk there, and their country is unable or unwilling to protect them.²⁸

The determination of who is irregular and whether they should be detained to ‘prevent irregular entry’ (to borrow the ECHR formulation) or with a view to deportation demands careful assessment of a range of sources of law. However, IOM’s Constitution means that it is remarkably deferential to domestic law, recognising admission decisions as falling ‘within the domestic jurisdiction of States’, and pledging that ‘in carrying out its functions, [IOM] shall conform to the laws, regulations and policies of the States concerned’.²⁹ Against this backdrop, and also in light of IOM’s extensive experience of offering ‘return’ as a service to states, its practice of tending to accept and even amplify states’ treatment of individuals as ‘irregular’ risks lending support to the illegalisation of refugees and migrants and the attendant detention practices.

13.3 IOM’s Normative Role on Immigration Detention

IOM undertakes several diverse normative activities. For decades, it has engaged in synthesising standards for the disparate body of international law it styles as ‘international migration law’.³⁰ It has also taken on an active role in convening consultative processes on migration, both regional³¹ and sectoral.³² Most recently, it facilitated the process leading to the Global Compact on Migration.³³ In order to trace the evolution of IOM’s policy positions on detention, we screened IOM documents including its annual reports (1999–2019), financial reports (1999–2019), programmes and budgets (2001–2021) and other publications (appearing on its website or the online publication platform as of May 2021) for any mentions of the keyword ‘detention’.

In light of this review of IOM policy documents, this section briefly identifies three of the distinguishing features of IOM’s normative approach to immigration detention: First, it generally does not overtly question states’ right to detain, and in some instances, seems to overstate it. Secondly, it has embraced the rhetoric of ATDs, but does not always frame the pursuit of alternatives as legally obligatory but rather as part of a menu of options for states. Thirdly, even in its normative work, it weaves an operational role for itself, notably highlighting AVR programmes as an ATD in and of itself. IOM’s contribution to the development of the Global Compact of Migration (GCM) reflects those policy positions, although the final text of the Compact is a progressive distillation of IHRL.³⁴

13.3.1 IOM and States’ Detention ‘Prerogative’

IOM policy documents tend to flatten out regional disparities across IHRL, often taking a generic statist view on immigration detention. The organization generally recognises the right of states to detain, often framing it as the ‘State’s prerogative’.³⁵ IOM usually goes on to insist on the exceptional nature of detention, and as such reflects IHRL to the extent that it frames detention as a measure of ‘last resort’.³⁶ However, the organization often does not state clearly that in many instances, detention itself constitutes a human rights violation. It rather positions its interventions in this ‘exceptional’ context of detention as ‘ensur[ing] migrants’ human rights are fully upheld’, often focusing on improving conditions in detention.³⁷

A relative exception is found in its 2014 Submission to the Working Group on Arbitrary Detention.³⁸ In this submission, IOM characterises detention as ‘an overarching problem severely impacting migrants’ wellbeing and enjoyment of a number of rights’. While encouraging states to ‘put an end to migration detention’, the organization also notes its own activities’ focus on improving detention conditions.³⁹

More recently, in response to the COVID-19 pandemic, IOM has issued a call with OHCHR, UNHCR and WHO arguing that ‘the situation of refugees and migrants held in formal and informal places of detention, in cramped and unsanitary conditions, is particularly worrying. Considering the lethal consequences a COVID-19 outbreak would have, they should be released without delay’.⁴⁰

In a similar vein, IOM issued a joint statement with UNHCR and UNICEF on Safety and Dignity for Refugee and Migrant Children: Recommendations for Alternatives to Detention and Appropriate Care Arrangements in Europe in July 2022.⁴¹ It takes an appropriately strong line against detention of children, stating that ‘in light of its documented devastating impact on children, detention is never in a child’s best interests and should not be presented as a measure of protection’.

Overall, while such statements demonstrate an awareness of the likely harmful consequences of detention, in particular in poor conditions, they do not always convey the human rights violation that is arbitrary detention itself. Moreover, these calls have not percolated into all of IOM’s policy documents on immigration detention, which still give a strong endorsement of states’ right to detain and generally refer to alternatives to detention as a desirable option rather than a state obligation – as the next section discusses.

13.3.2 ATDs as an Obligation or a Desirable Option?

While IOM tends to state that it has ‘always’ supported ATDs,⁴² this is rather misleading. Our review identified the first references to ATDs around 2010.⁴³ As is explored further below, IOM practices enabled rather than limited recourse to detention throughout the 1990s and early 2000s. In 2011, IOM published an information note by the International Migration Law Unit, International Standards on Immigration Detention and Non-custodial Measures.⁴⁴ This document’s stated purpose was to offer a ‘tool for those who are dealing with the issue of detention of migrants and non-custodial measures to acquaint them with international instruments that set the standards to be respected by States in this field’.⁴⁵ In 2016, IOM updated this information note, adopting an understanding of ATDs as any ‘measures […] applied by States to migrants and asylum seekers on their territories where some form of control is deemed necessary […]’.⁴⁶

Over the years, promoting ATDs has come to the fore of IOM’s detention discourse.⁴⁷ Yet IOM does not always frame the pursuit of alternatives as legally obligatory. The language of ‘obligation’ indeed remains limited to a few documents, and tends to state that if detention is not justified, ATDs are required, while the legal position is that all detention is prohibited unless alternatives have been assessed and ruled out.⁴⁸ ATDs are otherwise discussed as an avenue that states ‘should consider’⁴⁹ and which IOM seeks to ‘promote’.⁵⁰ IOM notably presents its road map on ATDs as a ‘non-prescriptive process to progressively develop migration governance systems that prevent the unnecessary detention of migrants through the use of alternative options in the community’.⁵¹

13.3.3 Acronymic Ambiguities: ‘AVR’ as an ‘ATD’

In addition to advocating for ATDs, IOM promotes the idea that its AVR programmes are, in and of themselves, ATDs. In its 2011 and 2016 information notes, IOM introduces AVR as ‘a humane alternative to detention and deportation’.⁵² IOM’s AVRR Framework (2018) further develops this linkage. While the Framework highlights that ‘strict safeguards’ are required ‘to ensure that migrants have access to all relevant information and are counselled on all options available to them to enable an informed decision’,⁵³ it also acknowledges that AVR can be the only way to end ‘unnecessary and sometimes prolonged’ detention.⁵⁴ To the legally complex issue of how to assess whether those in detention ought to have a right to stay, the Framework merely refers to other agencies (including UNHCR) who may be ‘well placed to provide targeted assistance over the longer term and can ensure migrants’ access to legal assistance and the right to seek asylum’.⁵⁵ This seems to suggest that IOM does not see its role as verifying whether detainees do have a right to stay, or as advocating for such a right.

It is apparent here that IOM’s normative and operational roles are closely imbricated, and that its normative syntheses seek to ensure space for its key operational role in AVR. Perhaps this is unsurprising given its projectised structure and dependency on earmarked funds. However, weaving in this role in normative documents – and thereby failing to distinguish matters of international law and operational practice – is at best self-serving. It may also lend legitimacy to detention practices that ought to be condemned outright as violations of human rights, by wrongly conveying the impression that by offering AVR as a route out of detention, the detention itself is no longer a human rights violation.

13.3.4 IOM and the Global Compact on Migration

The Global Compact on Migration is a complex, non-binding document, reflecting and indeed transforming international standards.⁵⁶ While various interlocutors pushed for progressive readings of international norms, IOM’s Global Compact Thematic Paper on Detention and Alternatives to Detention, which aimed to ‘inform actors involved in the […] consultation process’,⁵⁷ gave a strong endorsement of states’ rights to control their own borders, stating:

Many States consider immigration detention as an unavoidable and necessary migration management tool. States have the right to control their borders and determine their migration policies. However, in doing so they must ensure respect for international law and standards. Detention of migrants is usually for the purpose of identifying persons and determining nationalities, preventing persons from gaining unauthorized entry, and expelling or ensuring the enforcement of a deportation order. Some transit countries also detain migrants to prevent them from leaving the country irregularly. In some instances, asylum seekers are detained pending a decision on their asylum application.⁵⁸

This paragraph contains a remarkable mix of descriptive statements describing what states do in practice, alongside a general acknowledgement that states have the ‘right to control their borders’.⁵⁹ What remains unstated is that many of the practices described violate international law – detention of asylum seekers pending decisions on their claim, for instance, or preventing migrants from leaving, which often violates the human right to leave any country. This Thematic Paper further addresses the organization’s commitment to ‘humane conditions of detention’ through two policy suggestions, namely:

‘7. Improve detention infrastructure and services as required for ensuring a humane living environment, according to international standards and best practices and accounting for gender and age-specific requirements’.

‘8. Ensure that existing detention facilities meet international standards, if necessary through immediate infrastructural and other upgrades’.⁶⁰

Again, here we see the weaving of the normative and operational in a manner that may be self-serving. Detention, even in pleasant surroundings, may be a human rights violation, and the line between improving detention conditions and expanding detention capacity is blurry at best. As is discussed further below, whether to engage or disengage in such activities needs careful calibration not only in light of IHRL, but more generally in light of any given organization’s humanitarian commitments and self-understanding.

In the final text of the Compact, Objective 13 calls to ‘Use migration detention only as a measure of last resort and work towards alternatives’. As mentioned above, the detention principles in the Compact are generally taken as a fairly progressive distillation of IHRL. Since the adoption of the Compact in 2018, IOM policy documents on detention usually frame their work as advancing these key aims.⁶¹ IOM notably refers to GCM Objective 13 as providing ‘an opportunity to continue working towards the expansion and systematization of alternatives to detention as the customary means of addressing irregular migration’.⁶² However, the three key features of IOM’s approach to detention remain unchanged: a generally strong sovereigntist approach; ATDs more often cast as a desirable option than an obligation; and AVR and other IOM operational practices such as the refurbishment of detention centres included in its normative discussion.

13.4 IOM’s Operational Practices in Immigration Detention

IOM’s operational practices are decentralised, diverse and projectised. Accordingly, generalising about what it does is difficult. The scholarship on IOM’s role in relation to detention is limited and tends to focus on single sites. For instance, Miramond’s important assessment of IOM’s anti-trafficking activities in Laos and Thailand identifies its deferential stance to the ‘existing repressive apparatus’ for the ‘treatment’ of those identified as victims of trafficking, including detention.⁶³

In this part, we examine four critical cases of IOM’s detention-related practices, drawing from three decades of involvement in detention regimes. These cases offer insight into how IOM practices have shifted alongside its gradual moves towards publicly acknowledging its own human rights obligations. The first two cases predate IOM’s gradual human rights rebranding, so they allow for an assessment of the impact of this shift in rhetoric. The first case concerns IOM’s role in relation to US practices of interdiction and detention in the Caribbean (in the 1990s and 2000s), when the US first employed its military base in Guatanamo Bay as a detention site. This set of practices provided a model for the second case, its lynchpin role in establishing Australian offshore detention in the first iteration of its ‘Pacific Solution’ (2001–2007).⁶⁴ The two later cases illustrate IOM’s practices after the intensification of its human rights rebranding, in relation to its role in Indonesia (from 2000 to present) and Libya (2007–present). Its practices in Indonesia, funded again largely by Australia, follow on from its previous role in the Pacific Solution,⁶⁵ while in Libya, its activities are mainly funded by the EU and its Member States, but with the Australian ‘model’ frequently invoked.⁶⁶

13.4.1 IOM’s Role in US Interdiction and Detention in the Caribbean (1990s–2000s)

In the 1980s, the US began experimenting with new methods of extraterritorial border control, with a particular focus on preventing the arrival of people travelling irregularly on boats, in particular from Haiti. IOM’s role developed in the 1990s, after a military coup ousted Haiti’s democratically elected president, prompting a larger exodus of Haitians fleeing by boat. The US responded by scaling up its interdiction programme, although abandoning its previous practice of summary returns given the political situation.⁶⁷ Yet, rather than transfer interdicted Haitians to the United States (for a proper asylum procedure), the US decided to adjudicate claims for asylum onboard the USNS Comfort, a navy hospital ship docked in Jamaica.⁶⁸ IOM was involved in this highly contentious practice of ‘shipboard’ detention and processing. Working with US authorities onboard the Comfort, IOM was charged with ‘undertaking initial interviews and data collection for the asylum claims of Haitian boat people’.⁶⁹ It was also involved in ‘transporting asylum seekers to countries offering temporary shelter [of which few obliged] and moving the small minority who were recognised as refugees on to the United States and other host states’.⁷⁰

As the shipboard asylum processing became unsustainable, the US turned to its military base on Guantanamo Bay as a detention and processing site.⁷¹ IOM continued to assist US authorities with asylum interviews and data collection at Guantanamo.⁷² Incidentally, IOM was also engaged in running the US’s ‘in-country processing programme’ for Haitians, which forced asylum seekers to make their applications and await decisions in Haiti despite serious risks there.⁷³ Serious concerns were expressed that those detained at Guantanamo Bay faced pressure to accept US offers for immediate repatriation.⁷⁴ Of the 20,000 Haitians interdicted and transferred to Guantanamo Bay (including hundreds of children), most were eventually repatriated back to Haiti.⁷⁵

While UNHCR spoke out against the detention and processing of interdicted Haitians at Guantanamo, IOM remained publicly silent.⁷⁶ The exact date of IOM’s withdrawal from Guantanamo Bay is unknown given the organization’s limited reporting on its activities on the military base, and lack of public access to IOM archival documentation.⁷⁷ Far beyond the Haitian boat movements of the 1990s, the US continued to use Guantanamo Bay for the offshore detention and processing of asylum seekers, apparently overlapping with its more notorious afterlife as a detention and torture site for alleged terrorist suspects brought there by US military forces as part of the ‘War on Terror’. It appears IOM also maintained a presence at the site for at least another decade. In 2008, for example, IOM confirmed (responding to an academic inquiry) that it was still working with US authorities to provide services at Guantanamo Bay immigration detention camps, including ‘community liaison assistance, translation and interpreting, education and recreation programmes, employment facilitation, and coordinating medical services’.⁷⁸

Establishing accountability for these ‘offshore’ practices has been notoriously difficult, with the US Supreme Court upholding the legality of interdiction at sea,⁷⁹ in sharp contrast to the Inter-American human rights system and the dominant interpretation of international human rights and refugee law.⁸⁰

13.4.2 IOM’s Role in Australia’s ‘Pacific Solution’ (2001–2007)

After Guantanamo Bay, IOM played a more visible role in immigration detention by aiding Australia to implement its so-called ‘Pacific Solution’, a set of laws and practices designed to intercept and transfer asylum seekers arriving by boat to detention facilities on the territory of other states, in this instance Nauru and Papua New Guinea (Manus Island). Australian naval vessels intercepted protection seekers at sea and brought them forcibly to both countries, where they were subject to automatic indefinite detention in Australian-constructed facilities.⁸¹ In both countries, detained protection seekers had no means to challenge their detention legally.

On both Nauru and Manus Island, IOM directly managed and administered detention sites under the direction of the Australian government.⁸² As a contractor of the Australian government, IOM’s performance of its services were monitored ‘weekly’ by DIAC officials, through ‘direct personal contact with its [IOM’s] officers in Nauru and Canberra ….’.⁸³ At the time, neither Nauru nor Papua New Guinea were member states of IOM.⁸⁴ Over the course of IOM’s involvement, 1,637 persons were interdicted by Australia, transferred and detained at these sites where their claims were assessed by Australian immigration officials.⁸⁵ Of these, 1,153 persons were eventually found to be refugees or in need of protection for other compelling humanitarian reasons, while 483 detainees were returned to their countries of origin or residence following negative refugee determination decisions.⁸⁶ Although Nauru and Papua New Guinea both requested UNHCR to assist with the processing of asylum seekers’ claims, UNHCR argued publicly that detention practices violated human rights and refugee laws.⁸⁷

Within detention facilities, IOM’s managerial responsibilities included providing ‘security, water, sanitation, power generation, health, and medical services’.⁸⁸ Its Memorandum of Understanding with the Nauruan Government elaborates on the scope of IOM’s functions, listing the organization’s responsibilities as providing ‘good order and discipline’ at detention sites; regulating entry; and overseeing the ‘movement of asylum seekers’.⁸⁹ To fulfil its function of overseeing detention, the organization frequently subcontracted to companies, including private security firms.⁹⁰ Another role undertaken by IOM on behalf of the Australian government was to assist in the ‘voluntary’ return of asylum seekers to their home countries.⁹¹ Besides movement operations, this assistance entailed helping the Australian government to socialise cash incentive schemes for ‘voluntary’ return amongst the detainee population, while they were being deprived of their liberty and facing poor living conditions.⁹²

The detention conditions were generally poor, and it is well established that they amounted to inhuman and degrading treatment, of which IOM was well aware.⁹³ For example, in mid-2002, IOM’s medical staff in Nauru reported that thirty unaccompanied children were showing signs of trauma.⁹⁴ IOM employed an independent medical doctor to investigate health conditions and write a report for IOM managers. The doctor’s opinion was that no amount of mental health training or support would be able to mitigate the desperate situation and suffering of detainees.⁹⁵ He later resigned his post in protest over detention conditions and IOM’s disregard for his clinical professional opinion.⁹⁶ On Manus Island, detainees protested IOM’s management of the site by ‘[tying] placards to the fence of the camp pleading to be dealt with by UNHCR instead of IOM’.⁹⁷

IOM actively sought to avoid public scrutiny about the detention practices. Detainees’ communications with the outside world were also tightly controlled, including email and telephone calls with family members and legal representatives.⁹⁸ Working together with Australian Federal Police and hired private security, IOM limited the access of lawyers, journalists and human rights activists, for which it drew criticism from international human rights organizations for being ‘fundamentally resistant to independent scrutiny’.⁹⁹ However, IOM has not formally acknowledged its role in managing these detention facilities. Initially, both IOM and the Australian government maintained that Nauru and Manus Island were ‘migrant processing centres’, likening their operation to refugee camps.¹⁰⁰ Their denials included attempting to claim that the practices did not entail detention, a clear distortion of the legal concept.¹⁰¹ The Australian government argued that since ‘it would be against IOM’s constitution … to manage a detention centre’, the containment practices should not be viewed as detention.¹⁰²

Yet, there was no doubt that a regime of interdiction and automatic indefinite detention violated human rights. The evidently arbitrary nature of detention fuelled international criticism of both Australia and IOM. For example, the UN Human Rights Committee repeatedly condemned Australia’s practices of mandatory detention.¹⁰³ Amnesty International, after a monitoring visit to Nauru’s detention camps, concluded that IOM ‘as administrator of the Nauru and Manus Island facilities … has effectively become the detaining agent on behalf of the governments involved’ (emphasis added).¹⁰⁴ Addressing the IOM Council, Human Rights Watch called upon IOM to ‘cease managing detention centres … on Nauru and Manus Island … where detention is arbitrary and contrary to international standards for the treatment of asylum seekers’.¹⁰⁵ Several academics have also written about IOM’s integral role in the operation and legitimation of these sites.¹⁰⁶

On 31 March 2008, IOM officially closed both detention sites, and in Nauru, assisted with the decommissioning of the site for future government use.¹⁰⁷ However, the detention sites were reopened later in 2008 in a new phase of the ‘Pacific Solution’ when a new government came to power in Australia. Its externalisation practices have continued, re-emerging under new names and arrangements with the shifts in Australian electoral politics.¹⁰⁸ IOM’s activities changed significantly, however, apparently in light of the international criticism of IOM’s role. In the second iteration of the Pacific Solution, its AVR programmes dominate, still funded by the Australian government.¹⁰⁹ Although IOM has distanced itself from the management of detention facilities per se, it is still imbricated in the containment system.

Establishing legal accountability in this context has been challenging. Although the system was clearly designed and run by Australia, Australian courts, which lack strong powers of judicial review, generally gave effect to the relevant Australian legislation, viewing themselves as constitutionally unable to give effect to international law as regards Australia’s detention practices (both onshore and offshore). Australia routinely ignores the UNTB’s views finding legal violations.¹¹⁰ In contrast, in April 2016, the highest court in Papua New Guinea found (in a unanimous decision) that detention of refugees and asylum seekers in its Australian-funded ‘processing’ centres is unconstitutional.¹¹¹ Notably, in 2014, the government of Papua New Guinea attempted to amend its Constitution to insulate from constitutional review the detention of foreign nationals ‘under arrangements made by Papua New Guinea with another country or with an international organisation that the Minister responsible for immigration matters, in his absolute discretion, approves’ (emphasis added).¹¹² The Court also found this constitutional amendment unconstitutional.

13.4.3 IOM’s Role in Australian-Funded Immigration Detention and ATDs in Indonesia (2000–2020)

Since the mid-1990s, Australia has elicited Indonesia’s cooperation to implement its regional deterrence policy to asylum-seeking, leading to an increase of containment practices, including detention.¹¹³ Prior to Australian involvement, Indonesia employed immigration detention in a limited manner. Centres were few and designed to hold only convicted foreign nationals awaiting deportation.¹¹⁴ Between 2000 and 2018, however, Australia provided significant financial support to Indonesia to bolster its capacity to detain large numbers of people who were assumed to be otherwise likely to move on to Australia to claim asylum.¹¹⁵ As a result, tens of thousands of protection seekers ended up in indefinite detention while awaiting asylum decisions and resettlement options.¹¹⁶ Over the years, Indonesia shifted its approach towards ATDs.¹¹⁷ Following the withdrawal of Australian funding in 2018, the Indonesian government issued a circular ending the indefinite detention of intercepted refugees and asylum seekers.¹¹⁸ While Indonesia’s change led to the use of more community shelters styled as an ATD, these residences are still characterised by serious restrictions on mobility, and work within a broader framework of containment.¹¹⁹

IOM’s role is evident in the Regional Cooperation Agreement (RCA), a tripartite agreement signed between Australia, Indonesia and IOM in 2000, which sets out the operational arrangements for intercepting asylum seekers, framed as en route to Australia, and detaining them.¹²⁰ Under the RCA, Australia was to provide material support to Indonesia to arrest and detain transiting asylum seekers, while IOM was contracted by Australia to provide ‘care and maintenance’ to those in detention (entailing the provision of food, nutrition, medical aid and psycho-social support). Indonesia’s legal framework placed few limits on detention and allowed detention for up to ten years without judicial review, enabling these practices.¹²¹

IOM’s activities under the RCA have varied. In its earliest phases (2000–2001), those intercepted by Australia were accommodated in hotels and shelters run by IOM, as their first point of reception in Indonesia, before being transferred onwards to Indonesian-run shelters.¹²² Within IOM and government-run facilities, asylum seekers were encouraged to take up IOM’s AVR.¹²³ Until 2006, IOM’s annual financial reports show that it received regular funding from Australia for a project entitled ‘Care and Voluntary Return of Irregular Migrants in Indonesia’, presumably to provide the abovementioned services.¹²⁴ Some 23,000 asylum seekers and refugees were placed under IOM’s ‘care and maintenance’ within Indonesian detention facilities between 2000 and 2018, with many documenting shortcomings in both the food and the conditions in detention.¹²⁵

Between 2007 and 2013, IOM significantly expanded its detention-related activities, as part of its Australian-funded ‘Management and Care of Irregular Immigrants Project’ (MCIIP). This project had three main elements. The first aimed to ‘enhance the Indonesian Directorate General of Immigration’s capacity to care and manage irregular migrants in Indonesia … with a standard of care that meets international standards’¹²⁶ and involved major works to refurbish and renovate several Indonesian detention centres.¹²⁷ IOM’s work supported significant expansion of detention capacity.¹²⁸ The second element was to improve detention conditions by developing standard operating procedures and training Indonesian officials.¹²⁹ According to IOM, these activities ‘brought to life the concept of human rights in Indonesian immigration detention’ by ‘highlighting the human rights needs of people in Indonesian detention and providing officers of the Director General the tools to ensure human rights are protected’.¹³⁰ The third component was AVR work from detention sites. Overall, reliable reports demonstrated that human rights violations in detention continued.¹³¹ Moreover, while IOM has generally framed the MCIPP project as human rights-protective, its underlying aims were more explicitly stated by Australia’s Department of Immigration and Citizenship as: ‘provid[ing] funding to the IOM to enhance Indonesian immigration detention and transit facilities’ (emphasis added).¹³²

As the MCIPP project evolved, IOM also started to work on supporting asylum seekers outside detention, framed as an ATD. Indonesia became one of a handful of countries to adopt UNHCR’s Beyond Detention agenda.¹³³ In 2010, with funding from the Australian government, IOM began working on the release of some detainees, in collaboration with UNHCR and the International Detention Coalition (IDC). It also started refurbishing and administering a network of non-custodial accommodation, covering all financial costs for these sites.¹³⁴ Initially, only those who had been granted refugee status could be released from detention.¹³⁵ By 2016, it was reported that one-third of the protection seekers’ population remained in detention facilities, with their basic needs being covered by IOM, while another third lived in IOM-administered ‘community shelters’.¹³⁶ The remaining population lived independently in Indonesian communities.¹³⁷

Despite better conditions in non-custodial accommodation, refugees and asylum seekers have still been subject to restrictions on their mobility within these arrangements, giving the impression that they still form part of a broader strategy of containment.¹³⁸ Within IOM-run centres, refugees and asylum seekers can move freely during the day, but are required to remain in them at night, with different centres placing different restrictions on movement.¹³⁹ Asylum seekers and refugees who violate immigration regulations (e.g. ‘violating curfew’) lose access to community shelters and their services.¹⁴⁰ Many asylum seekers and refugees have described their experience as effectively living in ‘an open prison’.¹⁴¹ In March 2018, new asylum seekers were barred from admission into IOM’s ‘care’ programme due to a lack of resources.¹⁴²

In 2018, IOM ended its ‘care’ programme within Indonesia’s detention facilities on account of significant cuts to its Australian funding for such activities. Coinciding with these changes to IOM’s funding, the Indonesian government issued a circular ending the indefinite detention of intercepted refugees and asylum seekers.¹⁴³ Although international advocacy played some role in this shift away from detention,¹⁴⁴ it appears Australia’s withdrawal of funding to IOM’s ‘care and maintenance’ programmes was a game changer for Indonesia and its willingness to use detention to accommodate asylum seekers.¹⁴⁵ Nevertheless, IOM still takes credit for enhancing the protection of ‘stranded migrants and refugees’ in Indonesia, and frequently refers to Indonesia as a shining example of its ATD work.¹⁴⁶ In 2002, the organization briefly admitted to Human Rights Watch that Australia was inevitably a beneficiary of its ‘care’ to migrants, while also affirming that it was ‘not, strictly speaking, a humanitarian organization’.¹⁴⁷ Yet, today IOM does not acknowledge that it has been involved in expanding Indonesia’s detention regime, or tensions in the different roles it has undertaken. Instead, the organization tells a simplified story about its detention work, claiming that it has ‘always advocated for alternatives to detention, resulting in the successful establishment of open migrant housing facilities across the country’.¹⁴⁸

13.4.4 Detention in Libya: IOM, the EU’s Containment Practices and Mass Human Rights Violations (2007–Present)

Alongside the US and Australia, the EU’s migration policies and practices generally seek to contain protection seekers elsewhere, by externalising migration controls and preventing people leaving third countries.¹⁴⁹ These practices include bilateral and multilateral cooperation with states with poor human rights records, notably Libya. The range of practices in bilateral (in particular Italy-Libya) and multilateral (mainly EU-Libya) cooperation have shifted from Italy’s interception of irregular boats at sea and direct return of protection seekers to Libya, to engaging with the Libyan authorities (in particular the Libyan Coast Guard, LCG) to have them intercept and prevent those seeking to leave irregularly, as well as funding the refurbishment of immigration detention facilities.¹⁵⁰

The shift in approach, alongside the deep instability and fractured authority in Libya since the 2011 revolution and military intervention, has led to the emergence of a system of detention – both formal and informal – characterised by well-documented massive human rights violations, including torture, inhuman and degrading conditions, forced labour and slavery. A 2016 report by the Office of the UN High Commissioner for Human Rights (OHCHR) and the UN Support Mission in Libya (UNSMIL) defined the situation of refugees, asylum-seekers and migrants in Libya as a ‘human rights crisis’.¹⁵¹ On 1 October 2021, the United Nations High Commissioner for Human Rights published a report on Libya qualifying the violence against migrants in the country since 2016, including systematic torture in and outside official detention centres, as ‘amount[ing] to crimes against humanity’.¹⁵²

Amnesty International’s 2021 report on Libya noted that the LCG ‘intercepted and forcibly returned 32,425 refugees and migrants to Libya, where thousands were detained indefinitely in harsh conditions in facilities overseen by the Libyan Directorate for Combating Illegal Migration (DCIM)’.¹⁵³ It concludes that ‘[r]efugees and migrants were subjected to widespread and systematic human rights violations and abuses at the hands of state officials, militias and armed groups with impunity’.¹⁵⁴ Detention standards and conditions fall below IHRL standards due to lack of regulation and judicial oversight. Moreover, the situation is such that the entire containment system creates multiple, persistent and severe human rights violations. The containment practices of the LCG and official detention sites of DCIM are closely imbricated with a wider extractive system including various private sites of detention and abuse, with the line between public detention and private kidnapping, torture, forced labour, extortion and other human rights abuses blurred.

Inevitably, IOM’s detention work in Libya is ‘riddled with tensions’.¹⁵⁵ IOM has been involved in Libya for some time, for example overseeing a large evacuation programme for migrant workers at the time of the 2011 revolution.¹⁵⁶ IOM plays some operational roles in the containment system: For instance, when the LCG intercepts and pulls back boats, IOM provides those disembarked with ‘life-saving equipment, medical first aid, psycho-social support, and protection referrals’.¹⁵⁷ It has also set up some of the infrastructure necessary for ‘safe reception’, such as medical, water and sanitation facilities,¹⁵⁸ and provides some training to the LCG.¹⁵⁹ Its detention-related roles include refurbishing detention centres and running a large AVR programme, as discussed further.

While IOM offers AVR to home states, UNHCR also has a presence, and seeks to offer evacuation/resettlement opportunities to vulnerable asylum seekers and refugees. The Libyan authorities only permit UNHCR to engage with nine nationalities: those from Ethiopia, Eritrea, Sudan, Syria, Palestine, Somalia, Iraq, South Sudan and Yemen.¹⁶⁰ Libya is not a party to either the 1951 or the 1969 OAU Refugee Conventions, and UNHCR’s ability to access and assist refugees (in particular those of other nationalities) is limited. Moreover, as states accept to resettle few to resettle few refugees from Libya, UNHCR is limited in being able to offer transfers to Rwanda and Niger, in addition to evacuating very small numbers directly to Italy under a ‘humanitarian corridor’ programme.¹⁶¹ Between 2017 and 2020, UNHCR in Libya evacuated around 4,500 refugees.¹⁶² Notably, UNHCR shifted its practices when it realised that focusing on detained populations has the perverse effect that ‘persons bribed the guards of detention centres to be detained and then be able to access the UNHCR programme of evacuation and resettlement’.¹⁶³ The crude division of population between UNHCR and IOM belies the otherwise close cooperation between the two IOs. For instance, they routinely issue joint statements on the situation in Libya in relation to its treatment and approaches to refugees and migrants.¹⁶⁴

Within detention, IOM provides a range of services, including responding to critical food shortages in specific facilities and improving the physical conditions in places where deteriorated living conditions have led to high numbers of migrant deaths.¹⁶⁵ IOM implemented 307 interventions to upgrade Libya’s detention infrastructure between 2017 and 2020 – including refurbishments to toilets, showering facilities, sewage systems, ventilation and heating systems.¹⁶⁶ Its psycho-social programmes purportedly help migrants to ‘cope’ with the mental and emotional trauma of confinement.¹⁶⁷ These activities, including human rights training for Libyan detention staff, are justified as ‘promoting and protecting migrants’ human rights’.¹⁶⁸ IOM also conducts ‘detention centre mapping’, an activity it suggests will produce routine and reliable data on Libya’s detention centres for ‘evidence-based humanitarian and policy interventions’.¹⁶⁹ These activities are framed as ‘enhancing conditions’ to protect human beings.¹⁷⁰ IOM on occasion gives the impression that it is making headway on limiting detention through support to ATDs.¹⁷¹ However, it is unclear if there is any evidence to support this claim. Its Libya Crisis Response Plan (2022), for example, makes some mention of ATDs, but its other activities around search and rescue, refurbishment and material support programmes for intercepted and detained migrants are given prominence.¹⁷²

IOM’s ‘assisted voluntary return and reintegration’ (AVRR) has greatest prominence in its own self-presentation of its detention-related work in Libya. In 2015, IOM launched a new return programme targeting migrants in detention, called ‘Voluntary Humanitarian Return’ (VHR).¹⁷³ This programme, with funding from the UK¹⁷⁴ and EU, has led to the release and ‘return’ of approximately 53,000 so-called ‘stranded migrants’ since 2015.¹⁷⁵ IOM distinguishes VHR from its usual AVRR programming, claiming it is tailored to the Libyan context (and now rolled out in Yemen) to integrate components of ‘humanitarian protection’.¹⁷⁶ As reflects its general practice, IOM states that VHR is ‘voluntary’, because ‘returns are arranged at the express request of the individual returning, and humanitarian, as this assistance represents a lifesaving option for many migrants who live in particularly deplorable conditions’.¹⁷⁷ Published evaluations of IOM’s VHR programmes (undertaken for IOM by private consultancy firms) suggest that migrants neither have the ability to contest their detention nor understand how long their detention will last. This means they are making decisions about return while being subjected to different forms of abuse, harassment and precarious living conditions within detention sites.¹⁷⁸

This matter will shortly be the subject of international adjudication. The Italian NGO ASGI has brought a complaint to the CEDAW Committee, the Committee charged to assess potential violations of this Convention on the Elimination of Discrimination Against Women.¹⁷⁹ The particular facts concern two Nigerian women who were offered AVR by IOM. The complaint alleges the ‘return’ was not voluntary, and emphasises the positive obligations of both Libya and the funding state, Italy, to ensure proper protection of victims of trafficking. Notably, the NGO cites the ECtHR case of N.A. v Finland, in which the court accepted that an individual who had returned to his home state under such a programme could have been subject to a human rights violation.¹⁸⁰ The complaint to CEDAW also indirectly highlights the problematic nature of the operational division between refugees and migrants in Libya, which leads to a situation where ‘return’ from detention is normalised, rather than a wider concept of human rights protection that would fully protect against refoulement and avoid disguised deportations.

13.5 IOM, Human Rights and Humanitarianism in Detention Contexts

IOM’s role in relation to detention has transformed, both normatively and practically. However, much of the change has been unacknowledged. IOM tends to claim, in particular in its press releases, that it has ‘always’ encouraged the use of ATDs and treated detention as a ‘last resort’. However, given its clear and active role in perpetrating human rights violations in immigration detention, questions of accountability for past wrongs arise. The case studies reveal acts clearly attributable to IOM itself, and also breaches of other obligations. Many of the scenarios discussed in Part III entail multiple and systematic breaches of many human rights – not only arbitrary detention, but also torture and violations of other norms of jus cogens, such as race discrimination and slavery.¹⁸¹ International law has clarified the regime of responsibility for IOs for general breaches of international law, and for ‘serious breaches of peremptory norms’. When the latter are at issue, international law sets out additional consequences in terms of both state and IO responsibility.¹⁸² Such serious breaches are characterised by ‘gross or systematic failure … to fulfil the obligation’ and may emerge through the accumulation of various acts or omissions. The additional consequences include an obligation to cooperate to bring such violations to an end; not to recognise situations brought about by such serious breaches as lawful; nor to render aid or assistance in their maintenance.¹⁸³ The duty not to render aid or assistance forms part of general international law on complicity, reflected in other key articles of the ASR and ARIO.¹⁸⁴ Where a state or IO hands individuals over to other authorities knowing that they will suffer serious human rights violations, it is now well-established that they incur legal responsibility.¹⁸⁵ Developments in international law on shared responsibility are particularly pertinent in contexts such as those discussed above, where IOs, host and funding states work together closely.¹⁸⁶ While each of the scenarios warrant careful examination, it is clear that they reveal multiple instances of breaches of these obligations to cooperate to bring violations to an end, and not to render aid or assistance in their maintenance.

The detention and containment complexes considered in this chapter have also been framed as potential international crimes, with attendant individual criminal responsibility. Under this frame, attention has also focused on the criminal responsibility of the private contractors. For instance, one well-argued Communication to the ICC attempted to frame the Australian offshore detention system as a crime against humanity perpetrated by Australian officials and private sector contractors.¹⁸⁷ IOM officials were not considered. As the co-author of one of the ICC communications explained, ‘I don’t think we were sophisticated enough back then to proactively seek the IOM angle. The angle that did present itself from the material, powerfully, was that of private contractor liability. Many of our discussions back then revolved around that’.¹⁸⁸ Remarkably, overall, there has been more legal scholarship on the role of private corporations in the offshore detention system¹⁸⁹ than examination of IOM’s key role, as architect and enforcer of the first iteration of the offshore detention system on Manus Island and Nauru.

The case studies also reveal significant shifts in UNHCR-IOM relations. In the first two cases, IOM clearly took on a role where UNHCR was unwilling. Nowadays, when containment practices have become so embedded and widespread, both organizations work together, often dividing populations in crude and somewhat arbitrary ways. The crude division of populations in Libya is a case in point, but there are others.¹⁹⁰ IOM’s focus on offering ‘return’ services, rather than advocating for a right to stay or further migration opportunities, means that its ability and willingness to ‘protect’ those in detention or otherwise at the sharp end of migration control, is limited.

As well as having human rights obligations as an IO, IOM also routinely styles it activities around detention and AVR as ‘humanitarian’. Humanitarian organizations often face various ethical challenges working with detained populations, in securing access (while maintaining neutrality and independence) and in ensuring efficacy and humanity. Many reflect openly on these ethical tensions. For example, in 2016, Kotsioni reflected on the ethical dilemmas and decision-making surrounding MSF’s role in Greek detention sites,¹⁹¹ which led MSF to refuse to repair infrastructure in detention facilities, for fear that would lend tangible support for detention.¹⁹² However, MSF staff saw this as a difficult choice, in particular when health difficulties were clearly attributable to poor detention conditions. When it determined that its actions were futile in light of the systematic nature of the harms of detention, it discontinued some action, reflective of its ‘ethic of refusal’.¹⁹³ In 2020, MSF published a reflection on its role in Libya, concluding that there were ‘no safe options inside Libya’ so that the only way for refugees and migrants to achieve ‘safety and security [was] by leaving’.¹⁹⁴ In 2019, International Rescue Committee (IRC) commissioned a report on its detention work in Greece and Libya, and invited its staff to contribute frankly to the researchers on their ethical concerns.¹⁹⁵ The report identified various ethical tensions in their work, including in particular that it would be seen to support detention. Again, this concern manifested itself in ensuring that IRC’s work did not support the ‘infrastructure’ of detention.¹⁹⁶ In the case of both humanitarian organizations, the duty to advocate (both through quiet diplomacy and public condemnation) was vital to their mission.

IOM frames its operational work in immigration detention as humanitarian. In contrast to IRC and MSF, it continues to work heavily on detention infrastructure, in spite of these activities risking an expansion of detention capacity. Moreover, its AVR work is entirely in lockstep with the containment system of which detention is part. On advocacy, while it regularly speaks out against migrant deaths and abuses in detention centres, in particular in Libya,¹⁹⁷ it also stands accused of lack of ethical reflection in terms of how the organization may be ‘blue-washing’ EU policies and ‘sanitiz(ing) a brutal system of abuse’.¹⁹⁸ Such concerns also extend to UNHCR, which is similarly entangled in the implementation of EU containment practices.¹⁹⁹ While both agencies have heightened international attention to some of the worst human rights violations in Libyan detention centres, they have also remained relatively silent on many questions of EU responsibility.²⁰⁰ In IOM’s case, the fact that its programmes are so heavily funded by the actors (in particular the EU and its Member States) that have created the containment system in the first place should be part of the ethical reflection. Importantly, for IOs with international legal obligations, the duties to cooperate to bring serious jus cogens violations to an end are binding in international law.

13.6 Conclusions on Constitutional and Institutional Reform

This chapter reveals the urgent need for three interrelated constitutional and institutional reforms. The first set of reforms relates to IOM’s human rights obligations. Taking these obligations seriously calls into question the suitability of IOM’s overreliance on AVR and its constitutional deference to national immigration systems. Secondly, the question of legal accountability and redress, for its past and current violations require institutional reform. Thirdly, the chapter points to the need for institutional reform to ensure reflection on how to fulfil human rights and humanitarianism duties in practice, a process that warrants candour, openness and scrutiny that has not historically been an IOM’s strong point.

IOM’s Constitution is unusual when compared to other IOs in deferring to national migration prerogatives. Against this backdrop, and also in light of IOM’s extensive experience of offering ‘return’ as a service to states, its practice of tending to accept and even amplify states’ treatment of individuals as ‘irregular’ risks lending support to the illegalisation of refugees and migrants, and attendant detention practices. To protect migrants, it needs to be able to defend their right to stay, where applicable, and/or enable their onward migration, not only their ‘return home’. Institutional reforms are needed to ensure that its practices do not contribute to human rights violations.

IOM’s role in relation to detention illustrates the classic legal accountability gap that persists for many IOs. When IOM violates human rights, victims have no obvious place to seek redress directly against the IO. IO’s immunities generally render national courts inaccessible, a legal position that many rightly deplore.²⁰¹ Some regional human rights courts indirectly scrutinise IO acts, in particular if the IO lacks internal legal accountability mechanisms. This offers an indirect and limited way to call IOs to account. Some complaints to UNTBs concerning state action also indirectly call into question IO practices. To that end, the recent CEDAW communication is noteworthy and attempts to engage states’ positive human rights duties as regards how they engage with IOM.²⁰² As noted at the outset, human rights legal obligations include a positive obligation to create effective remedies, which is also incumbent on IOs.²⁰³ More broadly, the right to truth itself, in particular concerning mass human rights violations, is itself a matter of human rights obligation.²⁰⁴ The need for institutional reform to include internal legal accountability and redress mechanisms is urgent.²⁰⁵ Meanwhile, at a minimum, it would serve victims and the IO itself well to open up its historical records and engage in more frank analysis of its own recent and current practices.

IOM is the bearer of important, but underspecified, positive human rights obligations, and general international law duties to cooperate with other actors to bring serious human rights violations to an end. How it ought to do this should be a matter of frank internal and public discussion. As its current detention policies and practices stand, they tend to maintain strategic silences on its relatively recent role in establishing and expanding detention across the globe, meaning its bona fides and efficacy as an actor working to reduce or limit immigration detention remain in doubt. Even if it does not breach human rights itself, its policies and practice set a benchmark for which practices are acceptable under the guise of ‘migration management’ and ‘humanitarianism’. Its AVR practices are tightly imbricated with immigration detention. In so doing, with its blue logos and international staff, it may be seen to confer legitimacy on practices of contestable legality, or indeed practices that conform to international law but nonetheless are manifestly harmful and unjust. Moreover, with funding from the advocates of containment (the US, Australia and the EU in particular), its key operational role in the system that deflects protection seekers elsewhere is manifest.

Detention practices often demand institutional reflection on the tensions between human rights and humanitarianism. If an IO (or NGO) takes on a humanitarian role in order to improve detention conditions, it may indirectly support or legitimate that detention. Such role conflicts sometimes lead humanitarian organizations to withdraw from detention contexts, for fear of supporting the human rights violation. It also often prompts reflection on the need to avoid moral taint, and ensure their activities are not seen to benefit from the association with the perpetrators of human rights violations. Such choices are not easy, but unless there is a frank and frequent assessment of the impact of assistance, humanitarian organizations risk undermining both missions – human rights and humanitarianism.

On this basis, we urge IOM to abandon the figleaf of non-normativity: as an IO, it not only bears negative human rights obligations, but also positive duties to respect, protect and promote human rights. To this end, a constitutional moment for IOM is long overdue. Having set the legal framework to cooperate with the UN, and cloak itself in UN legitimacy, it should take a clearer position on immigration detention in general, and in particular revisit its constitutional stance of deference to national migration control prerogatives, which are often overbroad and misused. Human rights standards and humanitarian duties require institutionalisation, including internal and external accountability mechanisms. IOM has historically enabled and legitimated the containment practices that have led to the expansion and normalisation of the human rights violation that is arbitrary immigration detention. If its new human rights-friendly form is to deliver, institutional change is required.

14 IOM and ‘Assisted Voluntary Return’ Responsibility for Disguised Deportations?

Jean-Pierre Gauci

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14.1 Introduction

Recent years have seen the proliferation and implementation of assisted voluntary return (AVR) schemes across Europe and around the world.¹ These programmes, many of which are administered by the International Organization for Migration (IOM) in cooperation with the governments of host States, aim to facilitate the return and reintegration of migrants who are unwilling or unable to stay in host or transit countries to their countries of origin. Typically offering financial assistance, transportation, logistical support or reintegration and development assistance (or some combination thereof) to returning migrants, AVR schemes are often presented as providing a more humane alternative to ‘forced deportations’.² In practice, however, the voluntary nature of such return is questionable, and these programmes can easily morph into so-called ‘soft’ or ‘disguised’ deportations.³

Given the legal implications of the ‘dichotomy’ between voluntary and other forms of return (as highlighted by the European Court of Human Rights in Khan v UK), the critical role that IOM plays in the field of AVR, and IOM’s stated limitations on what forms of returns it will engage with, the question of whether a return situation is indeed voluntary or otherwise becomes critically important.⁴ This chapter seeks to unpack the conditions under which returns can be considered voluntary from a legal perspective. In doing so, it contributes to the debate on the voluntariness of AVR emerging from ethics, political science and other social sciences, especially migration studies.⁵ It adds a legal dimension to the debate, by providing a close look at the legal issues related to IOM’s role in AVR.

The chapter is organized as follows. Section 14.2 provides an overview of the work IOM does in the field of AVR and how its internal policy documents articulate IOM’s role in this field. Section 14.3 analyses the evolution of IOM’s definition of AVR across the three editions of the IOM Glossary on Migration (from 2004, 2011 and 2019), comparing these to the definitions used by other organizations, in particular the Office of the United Nations High Commissioner for Refugees (UNHCR). Sections 14.4 and 14.5 focus on the requirement of ‘free’ consent (Section 14.4) and informed consent (Section 14.5). Section 14.6 reconceptualises consent and voluntariness as a process, arguing for consent to be present throughout the process, and the implications on the enforceability of ‘voluntary’ return. Section 14.7 touches upon a number of related issues including financial incentives, the need for staff training and the requirement to respect the genuine demands of migrants seeking to return. Section 14.8 considers the implications of these principles for IOM and makes a number of recommendations for reform.

As a matter of its own policies, IOM states that ‘As an intergovernmental organization, IOM cannot carry out forced returns of migrants for, or on behalf of, governments’.⁶ International law does not clearly prohibit international organizations such as IOM from being involved in deportations, as long as these are consistent with, for example, international human rights law. This chapter does not engage in debates on whether IOM should be involved in non-voluntary returns – although IOM’s own policies would need to be revised if this were to be the case. Rather, it argues that some situations IOM describes as ‘voluntary’ are not actually voluntary and given the legal implications should be more accurately defined as forms of soft deportations. Particularly when human rights violations ensue, this would have implications for the accountability of IOM in relation to its own policy frameworks, as well as under international human rights law and the International Law Commission Draft Articles on the Responsibility of International Organizations; and for the States involved.⁷

14.2 IOM and AVR

IOM has been involved in the promotion and implementation of AVR programmes since 1979 and positions itself as the leading organization for voluntary return globally. Indeed, AVR programmes are one of IOM’s core areas of business and a ‘means by which it has grown in funding and authority’.⁸ According to its website, during the past four decades, IOM has assisted more than 1.7 million migrants to return voluntarily to their countries of origin.⁹ In 2020, despite limitations on AVR programmes as a result of COVID-19, IOM facilitated the return of 37,043 migrants to their countries of origin through AVR channels.¹⁰ Pre-pandemic, this figure was 64,958 in 2019.¹¹ AVR programmes implemented in cooperation with IOM play an increasingly important role in the migration policies of many countries, particularly European nations,¹² and such schemes have steadily grown in number, size, and scale over recent years.¹³

IOM’s commitment to assisting with voluntary returns can be traced back to its Constitution which, in Article 1, lists the provision of voluntary return migration services to States, including in cooperation with other international organizations, as a key purpose and function of IOM.¹⁴ By ‘offering migrants the possibility to return in a safe and dignified manner’,¹⁵ IOM considers AVR programmes to be ‘essential to the Organization’s mission’.¹⁶ Such schemes are a key component of IOM’s broader engagement with returns. In addition to its AVR activities, IOM is also engaged in promoting and facilitating the return of internally displaced persons (IDPs) in post-conflict and post-disaster settings,¹⁷ as well as supporting some aspects of repatriation processes for refugees, sometimes in cooperation with UNHCR.¹⁸ IOM’s work on return migration is guided by its 2021 Policy on the Full Spectrum of Return, Readmission and Reintegration, which promotes a ‘holistic, rights-based and sustainable development-oriented approach that facilitates safe and dignified return, readmission and sustainable reintegration’.¹⁹

Indeed, in contrast to forced deportation, AVR programmes are typically conceived of and presented as offering migrants a more humane and dignified form of return. IOM states that it does not carry out forced returns for governments, as this is a sovereign power and ‘enforcement measure exercised solely by governments’.²⁰ Accordingly, its role is self-limited to assist only with returns that are voluntary – although, strikingly, IOM contends that this does not prohibit it from ‘providing non-movement services prior to or after a forced return movement, such as pre-departure counselling or post-arrival assistance, as long as they are provided with the informed consent of the migrant and contribute to protecting their rights and well-being, nor from providing policy and technical support to governments to enhance their capacities in this space, in compliance with applicable international law’.²¹ This focus on voluntariness, at least when it comes to physically moving individuals, is confirmed by IOM’s ‘Framework for Assisted Voluntary Return and Reintegration’ policy document, which lists voluntariness as the first guiding principle for the implementation of effective AVR programmes.²² The Framework further lists as a key objective for AVR processes that migrants be capable of making ‘an informed decision and tak[ing] ownership of the voluntary return process’.²³

However, scholars and commentators have often queried the true voluntariness of AVR schemes. Indeed, in situations where the main other legal option available to rejected asylum seekers or irregular migrants is deportation, it is difficult to conceive of AVR as offering such migrants a genuine, informed choice in the matter of return.²⁴ In this way, the tactics of persuasion often involved in such schemes have led some to describe AVR as a form of ‘soft deportation’, or a ‘transformation within the regime of deportation itself’,²⁵ or to conceptualise forced and voluntary returns not as dichotomous but rather as falling somewhere along a continuum with forced deportation on one extreme and spontaneous voluntary return on the other.²⁶

14.3 The (D)evolving Definition of Assisted Voluntary Return

This section explores the way in which the definition of AVR has changed across subsequent editions of the IOM Glossary on Migration. Like other IOM publications, the glossary includes a standard disclaimer that ‘the opinions expressed in this Glossary do not necessarily reflect the views of the International Organization for Migration’.²⁷ However, the definition of AVR in the third edition is replicated in IOM’s policy documents about return, suggesting that it does in fact represent IOM’s conceptualisation of the term and thereby ‘the views of the organisation.’²⁸

The first edition (2004) of the IOM Glossary defines AVR as:

Logistical and financial support to rejected asylum seekers, trafficked migrants, stranded students, qualified nationals and other migrants unable or unwilling to remain in the host country who volunteer to return to their countries of origin.²⁹

The second edition (2011) makes a number of changes, and defines it as:

Administrative, logistical, financial and reintegration support to rejected asylum-seekers, victims of trafficking in human beings, stranded migrants, qualified nationals and other migrants unable or unwilling to remain in the host country who volunteer to return to their countries of origin.³⁰

The third and most recent edition (2019) further changes the definition and AVR is now defined as:

Administrative, logistical or financial support, including reintegration assistance, to migrants unable or unwilling to remain in the host country or country of transit and who decide to return to their country of origin.³¹

There are two notable differences between the original definition and the definition in the latest edition. First, the wording changes from ‘volunteers’ to return to ‘decides’ to return. This may seem like semantic parsing of words. However, the use of the verb ‘volunteers’ denotes a more active willingness to return. Indeed, an ordinary definition of ‘volunteer’ is ‘one who of his own free will takes part in any enterprise’.³² The Merriam-Webster legal definition of ‘voluntary’ is that it is ‘proceeding from one’s own free choice or consent rather than as the result of duress, coercion or deception’, ‘not compelled by law: done as a matter of choice or agreement’ and that it is ‘made freely and with an understanding of the consequences’.³³ An ordinary meaning of the term defines volunteering as ‘to offer to do something that you do not have to do, often without having been asked to do it and/or without expecting payment’.³⁴

Decide, on the other hand, is a more intransitive term defined as ‘to make a choice or judgment’.³⁵ This subtle but significant difference dilutes the requirement of voluntariness. A decision may be the only option available, but to be voluntary, there must be a selection between different options. This reading of the change (which, I argue, would not have been made had it not been meaningful) is less protective and dilutes the concept of voluntariness.

The second change concerns the categories of persons for whom AVR programmes are offered. The evolution moves from an inclusive list (rejected asylum seekers, victims of human trafficking, stranded students, qualified nationals, and other migrants) to a broad reference to ‘migrants’.³⁶ The focus on migrants generally appears to detract attention from the notion that AVR is targeted towards rejected asylum seekers, as shown in the definition in the first two editions. The 2019 glossary does not provide a definition of the term ‘migrant’ but rather explains it as a non-legal term reflecting a ‘common lay understanding’.³⁷ The examples provided are migrant workers, smuggled migrants, and international students. That said, the various categories of migrants listed in previous editions (of the AVR definition) would still be captured by the new definition of ‘migrant’.

The definition of AVR in the third edition of the glossary is accompanied by a note which reads:

[v]oluntariness is assumed to exist if two conditions apply: (a) freedom of choice, which is defined by the absence of physical or psychological pressure to enrol in an assisted voluntary return and reintegration program; and (b) an informed decision which requires the availability of timely, unbiased and reliable information upon which to base the decision.³⁸

It is notable that the key requirements of ‘voluntariness’ are set out in an accompanying note rather than within the AVR definition itself. The two key requirements set out are ‘freedom of choice’ and an ‘informed decision’. These generate an ‘assumption’ that voluntariness is present. Freedom of choice is defined by an absence of pressure rather than a presence of a will. Moreover, only certain forms of pressure are acknowledged as undermining voluntariness, namely ‘physical or psychological’ pressure, thus apparently excluding other forms of pressure such as abuse of a vulnerable position, economic and legal pressure. Furthermore, voluntariness is tested with regard to the decision ‘to enrol in the program’ rather than the return decision itself, further undermining the voluntariness standard. We return to this issue in discussing abuse of a position of vulnerability later in this article.

Beyond the dilution of the articulation of voluntariness by IOM over time, it is also revealing to compare IOM’s AVR definition with those of other international organizations. For example, UNHCR’s Master Glossary defines voluntary repatriation as:

The free and informed return of refugees to their country of origin in safety and dignity. Voluntary repatriation may be organized (i.e. when it takes place under the auspices of the concerned States and/or UNHCR) or spontaneous (i.e. when refugees repatriate by their own means with little or no direct involvement from government authorities or UNHCR).³⁹

Critically, the reference to ‘refugees’ in the definition speaks to the ability of that person to remain in the State in question, thereby making the repatriation ‘voluntary’. However, the UNHCR Master Glossary further defines AVR as:

Administrative, logistical, financial and reintegration support to non-nationals unable or unwilling to remain in the host country and who make a free and informed decision to return to their country of origin or habitual residence.⁴⁰

A few critical similarities are worth highlighting. Both definitions refer to a decision to return rather than volunteering to return, raising the questions discussed above. More importantly, the reference in both definitions (including different editions of the IOM definition) to ‘unable or unwilling’ to remain in the host country raises the question as to whether the reference to inability to remain includes, for instance, decisions by the host State rendering stay ‘unauthorised’ and therefore requiring the person to leave the host State.

14.4 Freedom of Choice

The definition discussed above refers to voluntariness as being the result of a combination of freedom of choice and informedness. This section explores the notion of freedom of choice further, in particular in light of the fact that AVR programmes are often designed for those who would otherwise face deportation. How does the existence of such a legal obligation to leave the country impact on freedom of choice? This issue has been considered by the European Court of Human Rights (ECtHR) in its 2019 ruling in NA v Finland.⁴¹ Although the decision has since been annulled for factual reasons, the reasoning is nonetheless still persuasive and may inform debates on IOM’s activities, in light of its stated commitment not to engage in forced returns.

14.4.1 NA v Finland before the European Court of Human Rights

Judicial determination of the question of whether a return is voluntary or otherwise is rare. In NA v Finland, the ECtHR examined this issue for the first time. The case was brought by Ms NA, arguing that Finland had violated her father’s rights under the ECHR. Having been denied asylum, he had returned to Iraq from Finland through an AVR programme. Upon return to Iraq, he had allegedly been murdered. The applicant alleged that ‘her late father’s expulsion to Iraq violated Articles 2⁴² and 3 of the Convention,⁴³ and that her father’s expulsion and his violent death caused her considerable suffering under Article 3 of the Convention’. The applicant’s father had unsuccessfully applied for asylum in Finland. He applied for an AVR programme coordinated by the Finnish Government and IOM after the decision by the Administrative Court (rejecting his appeal) but before his application to the Supreme Administrative Court (which was eventually also rejected). A voluntary return was granted on 13 October 2017. He left Finland on 29 November 2017.

The judgment of the ECtHR was annulled on 13 July 2021 under Rule 80 of the Rules of Court, on the basis of abuse of the right of application based on the subsequent discovery that documents and information central to the Court finding a rights violation had been forged by the applicant, warranting annulment of the judgment. In brief, evidence emerged (and was confirmed by the Finnish Courts) that the applicant’s father was in fact alive and that the documents presented to the Court (including his death certificate) had been forged. The Court noted that:

It has thus been established that the applicant has relied on false information and forged documents to support the key allegations on which her complaint before the Court was based. The Court notes in this respect that the alleged death of the applicant’s father was decisive for the applicant’s victim status.⁴⁴

Despite the annulment of the judgment, the deliberation of the Court in the admissibility stage provides relevant considerations as to the argument on the voluntariness of return and on the spectrum of deportation. Those arguments are not based on the facts of the case, but on the legal scope of the concept of ‘voluntariness’. At that stage of the proceedings, the Finnish government argued that the application for AVR meant that it could not be held liable for what happened to the applicant’s father upon his return to Iraq. Indeed, the agent for Finland argued that:

[F]ollowing the applicant’s father’s voluntary departure to Iraq, it could be considered that his voluntary departure put an end to his victim status and that after his departure he could no longer be regarded as a potential victim of any violation of the Convention.⁴⁵

The crux of the submission of the Finnish government was that the applicant’s father had decided to return home and that therefore the applicant’s claim was inadmissible. The applicant in turn argued that participation in the AVR programme was simply a means to avoid detention, attract less attention from the Iraqi authorities and to avoid a two year entry ban to the Schengen area, all of which would flow from a forced return. The arguments were summarised by the Court as follows:

The Court notes that according to the Government’s argument, the circumstances of the case did not engage the jurisdiction of Finland, because the applicant’s father had left Finland voluntarily for Iraq, where he had subsequently been killed. The applicant in turn argues that her father’s return had not been genuinely voluntary but based on the decisions already taken by the Finnish authorities with a view to his expulsion, and that her father’s death had thus been a consequence of the risk to which he had been exposed by the actions of the Finnish authorities.⁴⁶

The Court decided in favour of the applicant on this matter:

For the Court the fact that the applicant’s father had first lodged an application under the voluntary returns programme before submitting his application for leave to appeal before the Supreme Administrative Court cannot be regarded as decisive, either. In the light of the circumstances of the case, in particular the factual background of the applicant’s father’s flight from Iraq as acknowledged by the domestic authorities, the Court sees no reason to doubt that he would not have returned there under the scheme of ‘assisted voluntary return’ had it not been for the enforceable removal order issued against him. Consequently, his departure was not ‘voluntary’ in terms of his free choice.⁴⁷

The argument of the Court on this point of admissibility reinforces the argument that provided that there is a removal requirement from the host State, then the return cannot be considered to be voluntary. This shifts the return away from being a ‘voluntary return’ to some other form of deportation (soft deportation/disguised deportation) – that is, a form of return that IOM insists it does not undertake. This, in turn, is a relevant consideration, especially when seen in the broader jurisprudence of the Court including when in Abdul Wahab Khan v The UK the Court determined that:

There is no principled reason to distinguish between, on the one hand, someone who was in the jurisdiction of a Contracting State but voluntarily left that jurisdiction and, on the other, someone who was never in the jurisdiction of that State.⁴⁸

In that decision, the Court determined that the voluntary departure meant that the UK’s jurisdiction was not engaged. This in turn highlights the relevance of accurately differentiating between ‘genuinely voluntary return’ and forms of deportation that fall into categories other than ‘voluntary’.

The Finnish Government’s argument was complemented by a statement that before his departure, the applicant’s father had signed a declaration in which he had agreed that, in return for receiving financial aid, any agency or government participating in the voluntary return could not in any way be held liable or responsible. The signature of such declarations appears to be part of IOM practice.⁴⁹ For example, the IOM-facilitated 2011 UK Voluntary Assisted Return and Reintegration programme – Declaration of Voluntary Return includes a provision stating that

I agree for myself as well as for my dependants, heirs and estate that, in the event of personal injury or death during and/or after my participation in the IOM programme, neither IOM nor any other participating agency or government can in any way be held liable or responsible.⁵⁰

Similarly, the sample forms available in the Standard Operating Procedures for Reintegration of Returnees in Ghana produced by IOM provide the following wording:

I acknowledge, for (name of migrant) and for any person for whom I have the right to do so as well as for his/her relevant heirs and estate, that IOM will not be held liable for any damage caused, directly or indirectly, to me or any such person in connection with IOM assistance that derives from circumstances outside the control of IOM.⁵¹

On this point, in NA v Finland the Court found that:

In the present case, the applicant’s father had to face the choice between either staying in Finland without any hope of obtaining a legal residence permit, being detained to facilitate his return by force, and handed a two year– entry ban to the Schengen area, as well as attracting the attention of the Iraqi authorities upon return; or agreeing to leave Finland voluntarily and take the risk of continued ill-treatment upon return. In these circumstances the Court considers that the applicant’s father did not have a genuinely free choice between these options, which renders his supposed waiver invalid. Since no waiver took place, his removal to Iraq must be considered as a forced return engaging the responsibility of the Finnish State.⁵²

The Court was therefore clear that given the options available to him, the agreement to participate in a programme of AVR, and indeed to sign a waiver of responsibility, does not render the return, in fact, voluntary. This, in turn, has implications for the responsibility of the States involved (as parties to the relevant Convention) but also for the organizations involved in such returns, including IOM. If the Court’s analysis also holds for international organizations, IOM can no longer claim to be involved only in voluntary returns.

14.4.2 Lessons from Other Areas of Law

It is also instructive to consider other areas of law where the concept of voluntariness plays a role. Two areas are considered particularly interesting. One is the international law relating to human trafficking and in particular the inclusion of ‘abuse of a position of vulnerability’ as one of the means listed in the definition of trafficking. The other is the ordinary law of contract, and in particular the issues around vitiated consent, a basic legal acknowledgement that coercion undermines consent. The reasons for this selection include that the legal space in which these debates occur is often similar. For example, the discussion of voluntariness in movement is often a key point in the case of trafficking, as is the question of abuse of one’s migration status as a ‘means’ through which trafficking occurs (and thereby rendering consent irrelevant). Moreover, one can identify parallels between situations of duress as a vitiating factor in the context of contract law (for example related to threats of detention) having a clear parallel in the return space.

This section aims to offer two different examples of how voluntariness is understood in law, in order to clarify whether situations that have been described as being of ‘voluntary return’ are indeed so.

Article 3 of the Trafficking Protocol⁵³ considers abuse of a position of vulnerability to be a means of trafficking alongside coercion, fraud, deception and abuse of a position of power. The same provision is included in the definition of trafficking under the Council of Europe Trafficking Convention,⁵⁴ the EU Directive,⁵⁵ and the Association of Southeast Asian Nations (ASEAN) Trafficking Convention.⁵⁶ If any of the means are present, any consent given by the victim to the intended exploitation is rendered irrelevant from a legal perspective.

Despite the apparent consensus on the trafficking definition, elements thereof remain unclear and continue to be interpreted and applied differently in different jurisdictions. This includes the idea of abuse of a position of vulnerability. It should be clarified that the focus here is not on the idea of vulnerability as susceptibility to trafficking but rather on the abuse of vulnerability as a means of trafficking.⁵⁷ The notion of abuse of a position of vulnerability requires two elements – the existence of a ‘vulnerability’ and the ‘abuse’ of that vulnerability for the purpose of exploitation. According to the travaux preparatoires of the Trafficking Protocol, the reference to the abuse of a position of vulnerability is understood as referring ‘to any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved’.⁵⁸ This same interpretation of vulnerability is carried through the EU Directive, which uses the same definition in Article 2.2.

No further explanation is given of what a ‘real and acceptable alternative’ is. The inclusion of the term seems to have been an attempt to cover the myriad of more subtle means of coercion by which people are exploited.⁵⁹ The commentary to the Council of Europe Convention notes that abuse of a position of vulnerability means:

[A]buse of any situation in which the person involved has no real and acceptable alternative to submitting to the abuse. The vulnerability may be of any kind, whether physical, psychological, emotional, family-related, social or economic. The situation might, for example, involve insecurity or illegality of the victim’s administrative status, economic dependence or fragile health. In short, the situation can be any state of hardship in which a human being is impelled to accept being exploited.⁶⁰

When examining abuse of position of vulnerability, one must consider both the objective situation to assess whether there is a position of vulnerability which is being abused as well as understanding the situation as experienced and perceived by the victim.⁶¹ If the victim perceives themselves as being in a vulnerable situation where they have no real or acceptable alternative, then irrespective of whether this is the objective reality or not, the situation can still be one of abuse of a position of vulnerability sufficient to vitiate consent.

Beyond the idea of abuse of a position of vulnerability there is also the idea of abuse of a position of power within the context of the trafficking definition that might have some resonance in the current context.⁶² For instance, one can think of the situation of a migrant who is undocumented or who is held within a detention centre where the people/organizations who are running the centre (or who are otherwise involved in the management) propose return as the most viable solution. In that context, it could be that there is a situation of a position of power, perceived or actual, that can hinder effective consent.

The other issue to keep in mind is the question of vulnerability and how the concept is framed from a legal perspective.⁶³ Whilst a detailed discussion of the definition of vulnerability is beyond the scope of this chapter, vulnerability is a contextualised notion and therefore an individual migrant who might not otherwise be considered to be vulnerable can be rendered vulnerable partly because of the context in which they find themselves. This includes situational vulnerability, such as being a detained or undocumented migrant.⁶⁴ Therefore, if abuse of a position of vulnerability is sufficient to render any consent in the context of trafficking irrelevant (including to the extent of it being a criminal offence), then where a migrant is in a vulnerable position, which is used for the purposes of recruiting that person into an AVR programme, then that sitation cannot be considered to be one where the individual is genuinely exercising free choice, meaning that the return is not genuinely voluntary.

Contract law also turns on individual agency and consent to enter into contractual relations. Without consent, contracts are not freely entered into and so are not contracts. A contract is ‘an agreement giving rise to obligations which are enforced or recognised by law’.⁶⁵ Contract law is different from other areas of law in the sense that it is ‘based on an agreement of the contracting parties’.⁶⁶ Under contract law, there are various factors that vitiate the requisite consent. When these factors are present, consent is deemed to not be freely given or to be invalid. These include misrepresentation, mistake, duress and undue influence. Whilst most of these will be relevant to the discussion of consent in the context of AVR, the issues of duress and undue influence are the most obviously relevant. The idea of duress is broadly understood as any threat which has the effect of bringing about coercion of the will which vitiates consent.⁶⁷ Canonical cases in contract law demonstrate that duress may include threats of detention. Of particular interest for the purposes of this chapter is the 1847 case of Cummings v Ince⁶⁸ where an elderly woman was told to sign over all her property or face not ever having a committal order to a ‘mental asylum’ lifted. That contract was found to be void.

Parallels can be drawn here to situations where recruitment for IOM’s AVR programmes is done within the context of detention centres, and where continued detention is a looming threat, whether explicit or implicit. Also relevant is the issue of undue influence. This refers to a situation where an individual is able to influence the consent of another due to the relationship between the two parties. This could be the case, for instance, for an officer working in a detention centre who is able to ‘convince’ a detained migrant to sign up to an AVR programme. The multiple services offered by IOM, which is involved in both service provision in detention centres and promoting voluntary return, can therefore raise significant concerns.⁶⁹

On a related note, it is worth recalling that contract law is based on questions of legality. One may not contract into something that is otherwise illegal. For instance, an employer who is failing to pay minimum wage is not exempted from his obligations merely because the employee has signed a contract of employment where the agreed salary is below that statutorily established for the country. In the same way, if the return in question would violate law (e.g. the principle of non-refoulment), one cannot use the agreement to return voluntarily as an excuse for the violation of the international legal principle.

14.5 Information

Beyond the question of whether consent was freely given, the other key requirement for ‘real’ consent is that it is an ‘informed decision’. Information must be available; it must be accessible and there must be some form of comprehension by the person receiving the information. There are two thresholds of requirements regarding information. The first is of conduct: the organization must show that it has informed the individual of what AVR is, what the implications are, and what the potential risks and benefits are. The second is one of result, where the organization must show that the individual concerned has understood the various repercussions of their decision.

Given the implications of the decision to return, one must surely lean towards the second ‘level’ of requirement (obligation of result) even if the reality would seem to fall somewhere in between these two standards. Special attention must be given to particularly vulnerable individuals. What works for an educated adult might not work for a less educated young or older person, for instance. Beyond issues of return, the applicants should also receive information on the meaning and implications of the waiver of liability forms that they are expected to sign (see above).

This is further complicated by the question of uncertainty of information provided. With situations constantly evolving, some of the information provided may soon become out of date as the realities change, whilst information about specific risk or protection factors may be difficult to access. Organizations involved have a duty to diligently ensure that information is constantly updated and that they provide the best information they can, but equally to clarify uncertainties about the information as part of the information delivery process. Lessons from the medical space, on the way uncertainty should be shared with the recipient of information, could be relevant here.

Parallels in terms of information provision can also be drawn from other areas of European asylum law, especially Article 29 of the Eurodac Regulation,⁷⁰ Article 5 of the Reception Directive,⁷¹ Article 22 of the Qualification Directive,⁷² Article 8 of the Procedures Directive⁷³ and Article 12 of the Returns Directive.⁷⁴ Requirements include ensuring that the information is provided in writing, and where required orally, in an age-sensitive way and in a language that the individual understands or is reasonably supposed to understand.⁷⁵

Beyond freedom of choice, access to adequate information is critical to ensure that the return is indeed voluntary, keeping in line with IOM’s own limitation of only engaging with voluntary returns. Arguably, the obligation of information also comes with an obligation to inform about alternative options.

14.6 Consent and Voluntariness as Process

Given the above consideration, this chapter posits that voluntariness, expressed as consent to return, in the context of AVR must be seen as a process and not as an isolated decision. It must be present throughout the process of return and not simply a one-off element. It is not something that should be assumed. Given the sensitive nature of decision-making around the return, the vulnerable situations in which most people will find themselves and the potential risks upon return, additional safeguards must be put into place.

Such safeguards include training for IOM staff involved in AVR programmes, time for the migrant to think over the information provided (the idea of a reflection period can also be gleaned from the context of human trafficking), a requirement that the information given is comprehensive, clear, up to date and understood, and that the individual in question is given every opportunity to seek advice and assistance. An understanding of the risks of return, including the implications for future migration opportunities, should not be assumed.

Neither is voluntariness something that can be enforced. If a person changes her mind, then she must be allowed to revoke her consent if the return is really to be voluntary. Indeed, a reversal of consent to participate in an AVR programme should be assumed where the person involved takes measures as to indicate that she no longer wishes to return – such as for instance seeking an additional level of appeal through judicial means in the country of current residence. A parallel can be drawn here to the idea of implied withdrawal of asylum applications. In asylum procedures, there are any number of situations where an asylum application is considered to have been withdrawn when an applicant does something that indicates that he or she is no longer interested in the protection of the State. In the context of AVR, IOM, States and other actors involved in the process ought to use the same approach. This means that even if an individual has applied to be returned, if they then undertake measures such as applying for a further level of appeal or a similar measure then it should be assumed that they are no longer voluntarily returning. If implied withdrawal in the context of asylum applications is an accepted approach, there is no reason why it should not also be allowed in the context of voluntary return.

This, however, comes with many practical challenges to the implementation of AVR programmes, raising the question as to whether there is a reasonable cut-off point that can be legitimately imposed by organizations such as IOM that are spending money to assist returns. These issues can be mitigated if issues of informed consent and free choice are maintained throughout the process. Whilst frustrating, and potentially costly, theoretically, if AVR is to be truly voluntary, the possibility of retracting one’s decision must be a possibility until the last possible opportunity.

14.7 Further Considerations

Before concluding, there are a number of issues that are worth highlighting when discussing the question of AVR, and IOM’s role in it. The first is that some people will genuinely wish to return despite the possibility of remaining in the current host country or indeed despite the difficult or dangerous circumstances in the country of origin. The reasons for this are varied and beyond the scope of analysis in this chapter. They may include attempts to retry their migration project or simply to return home due to family or other obligations. Those reasons may be related to improvements in the home countries or deterioration of conditions in the host country. It is therefore imperative that the right balance is struck between ensuring that the willingness to return is ‘real’ and valuing the expressed wishes of the migrants involved. Put differently, one must avoid paternalistic or discriminatory attitudes (or infantilizing the decisions of migrants) whereby assumptions on the desirability of return replace the informed wishes of the migrant themselves.

This then links to the question of whether an international organization like IOM should be involved in returns, which are genuinely voluntary, but to places where the safety and security of the returnee cannot be guaranteed. The balance to be struck in such situations is an incredibly difficult one. If truly and genuinely voluntary, meaning there is no pressure to return and there is a genuine understanding of the risks, then one could argue that IOM should at the very least facilitate the return in such scenarios.

Second, there is a significant impact of financial incentives on consent and this is something that merits further analysis. Many people may decide that certain risks are worthwhile for a particular price, and this is not irrelevant in determining the reality of consent to return through an AVR programme. Related to this is the question of how the financial incentive is determined and whether there are concerns raised by the idea of financial incentives being increased to secure further buy in into the relevant schemes.⁷⁶

Third, training and support are needed for those involved in promoting and securing AVR participation. This includes training and information but also psychological support for people implementing a role which is psychologically and otherwise taxing. Those working for organizations like IOM must have access to the country of origin information in the same way that those supporting asylum applicants must. They must also be provided with ongoing on-the-job support.

Fourth, in order to ensure that return is really voluntary, the manner in which the success of AVR programmes is assessed requires an overhaul. If AVR programmes are to be more respectful of individuals’ actual voluntariness, one must ensure that organizations working in these programmes (such as IOM) are funded to provide services such as support information and counselling over and above the individual successful case of an individual being returned. For so long as the measure of success for AVR programmes remains the number of people returned then the incentive for organizations to hasten the process and push people into AVR schemes remains problematic. The addition of ‘reintegration’ services as part of AVR programmes is a welcome development, not least because it purports to provide support to individuals upon return. Its monitoring, however, must not override the need to also monitor the voluntariness of return itself.

Finally, whilst there is indeed important scope for looking at the organizations that are implementing problematic AVR programmes, we must also look to the entities that fund and promote AVR. Responsibility and accountability for problematic programmes must be sought both from the direct implementors of such programmes (including IOM) and also from the States and other international organizations (such as the EU) that are funding and otherwise requiring and supporting these programmes.

14.8 Conclusions and Proposals for Reform

This chapter has argued that in various circumstances, AVR may not be ‘voluntary’ and may cross the line into a form of disguised deportation. It has highlighted the role that IOM plays in AVR programmes and the implications that the actual voluntariness of that return might have on the suitability of its engagement and accountability under human rights law. As an international organization, IOM is bound by its own constitutive documents, its internal policies, as well as other sources of international law, including human rights law.⁷⁷ Its engagement must therefore be reformed so as to ensure that it continues to provide AVR programmes that are genuinely voluntary and that engagement in soft deportations is not wrongly disguised as ‘voluntary return’.

IOM should resist pressures from governments and others, often channelled through funding schemes, to offer AVR programmes to individuals who may not genuinely be signing up to return out of their own free choice. It might consider developing alternative channels to provide assistance and support, including re-integration support to those being deported by States, outside the realm of the AVR programmes subject to relevant assessments on whether it is appropriate for IOM to engage in such processes, most notably based on whether appropriate safeguards (including under the principle of non-refoulement) have been considered. IOM must exercise due diligence to avoid tacitly endorsing policies and practices that violate international standards. It should seek to break the link between migrant detention and AVR and ensure that counselling about AVR includes, where relevant and appropriate, information and support in exploring other viable options in the country.

IOM should also ensure that all information given is indeed accurate and up to date. In order to ensure that the information provided meets the criteria discussed above, IOM should continue to critically and regularly evaluate the information that it provides to migrants seeking information and advice about returning home, ensuring that the information provided is comprehensive, clear and up to date. Such evaluations should be publicly available (open to scrutiny by civil society for example); incorporate the views of a broad range of governmental and non-governmental stakeholders (including NGOs); and consider relevant credible assessments of the country’s situations (including but not limited to UNHCR).

IOM and its donors should revise and replace the indicators of success for AVR programmes so as to ensure that a holistic approach to return counselling is provided and that the successful application of that approach is monitored and considered for IOM’s monitoring and evaluation of programmes. The number of persons returned should not be the measure of success of AVR programmes. This should be coupled with strengthened internal processes to monitor the implementation of AVR programmes, including a constant evaluation of AVR programmes against IOM’s relevant policies and standards, and against international law more broadly. Such processes should incorporate the views of and proactively (genuinely) engage NGOs and other bodies,⁷⁸ and the results of the same should be publicly available for scrutiny by researchers, civil society, migrant groups and others.

15 Holding IOM to Account The Role of International Human Rights Advocacy NGOs

Angela Sherwood and Megan Bradley

15.1 Introduction

Non-governmental organizations (NGOs), particularly human rights advocacy groups, have played influential roles in recent years in holding international organizations (IOs) to account for their involvement in human rights violations and other harms. NGOs have, for example, brought IO abuses to light and pushed for the creation of stronger policies and mechanisms to ensure that IOs adhere to their commitments and obligations under international law. NGOs have helped catalyse accountability and institutional change at the World Bank and International Monetary Fund in relation to the negative human rights and environmental implications of lending practices and economic reforms, and in UN peace operations involved in trafficking, detainee abuse, and sexual exploitation.¹ While a growing body of research explores the ways in which NGOs affect IO accountability, relatively little high-level, sustained international advocacy has focused on the International Organization for Migration (IOM), and IOM has been under-examined in the literature on NGOs and IO accountability.² This is surprising as IOM is now among the largest IOs worldwide, and has a history of involvement in activities such as migrant returns and detention that may threaten or actively violate migrants’ rights – activities that call out for careful external scrutiny from NGOs.³ Much of the academic literature on IOM is highly critical of the organization and tacitly assumes that IOM is the target of concerted NGO advocacy.⁴ To be sure, some local NGOs and activist groups have attempted to take on this task. However, closer examination demonstrates that more well-resourced and influential international human rights NGOs that are concerned with migration and displacement have generally eschewed this role vis-à-vis IOM, although they serve as important watchdogs in relation to other IOs, particularly the Office of the UN High Commissioner for Refugees (UNHCR), the largest and most prominent IO focused on human mobility.

This chapter explores the drivers and implications of this puzzling disconnect, and opportunities to overcome it. We map out the limited ways in which international human rights advocacy organizations have engaged with IOM and identify key reasons why advocacy NGOs have not more actively pushed for increased accountability from IOM. International advocacy NGOs have important but under-examined and still under-developed roles to play in advancing accountability for the human rights implications of IOM’s work. We suggest that enhancing accountability is a two-way street: there is a need for advocates to devote more attention to IOM, and develop more concerted advocacy strategies vis-à-vis IOM, leveraging commitments made in the extensive set of frameworks, policies and guidelines it has released in recent years. At the same time, IOM should clearly recognize the importance of external advocacy, and engage more openly and systematically with human rights advocates, moving beyond traditional postures of defensiveness, dismissal and secrecy. We begin by discussing IOM’s accountability deficit and situating this study in relation to the growing body of literature on NGOs and IO accountability. This literature has not yet considered the case of IOM; rather it has focused significantly on ‘positive’ cases in which NGOs have successfully pushed for greater accountability from IOs. This chapter adds to understandings of IO-NGO relations by shedding light on the curious case of IOM, and the question of why in some instances advocacy NGOs do not emerge as key protagonists in efforts to advance IO accountability, even when they may be expected to play significant roles. Second, we analyse past patterns of (limited) engagement between major human rights NGOs and IOM. Building on this discussion, we identify and explain some of the primary reasons why IOM has not been the target of more concerted and sustained international advocacy efforts. We close with brief reflections on how advocacy NGOs’ contributions to IOM accountability efforts may be strengthened.

A word on terminology and the focus of this chapter: This discussion looks beyond legal accountability, which focuses on ‘accountability through jurisprudence and legal sanctioning that is limited to rights that can be subjected to judicial review’.⁵ Instead, it is informed by a broader, sociopolitical conception of accountability as a relationship in which the accountability holder helps set and uphold the standards for the accountor’s actions, including through monitoring and sanctioning deviations from these standards.⁶ On this view, international human rights NGOs, such as those examined in this chapter, may serve as accountability holders in relation to IOs by, for instance, investigating, monitoring, and publicly shaming IOs that transgress human rights principles; providing evidence to support formal accountability mechanisms; supporting victims of IO abuses; recommending policy changes; and lobbying member states to rein in IOs that fail to adhere to appropriate standards. International human rights NGOs (which we also refer to, in shorthand, as ‘advocacy NGOs’ or ‘human rights NGOs’) are certainly not the only actors involved in efforts to advance the accountability of IOs including IOM. Member states, grassroots NGOs, affected communities, and IO staff also play pivotal parts. However, the roles of large, international human rights NGOs vis-à-vis IOM have not been systematically analysed and merit more concerted analysis, with a view to better understanding how these actors may engage and influence IOM. We concentrate on large and medium-sized, internationally active, ‘professionalized’ and comparatively well-resourced human rights organizations such as Amnesty International and Human Rights Watch (HRW) (arguably the two most prominent and influential transnational NGOs in this field), as well as NGOs that focus specifically on forced migration.⁷ These actors deserve greater attention as they have the potential to orchestrate international advocacy campaigns and influence member states’ policies towards IOs working on migration and displacement issues; indeed, as we will demonstrate, these organizations have a long history of critiquing and influencing IOs such as UNHCR but have been much less vocal regarding IOM. This focus on major advocacy groups is not to discount the significance of smaller NGOs and activist networks that have been outspoken about IOM’s complicity in human rights violations and may help promote accountability in relation to particular issues such as detention.⁸ Rather, this chapter is an initial if limited contribution to discussions of how NGOs may influence accountability on the part of IOM.

Our analysis draws on 70 in-depth interviews conducted from 2015 to 2021 with human rights advocates, IOM officials, government and UN agency representatives, staff of major humanitarian agencies, and independent experts. Interview data were analysed through a grounded coding process, distilling key themes, insights and arguments.⁹ We additionally incorporate findings from our analysis of a set of more than 850 reports on migration, refugees and other displaced populations published by Amnesty International and HRW from 1998 to 2020.¹⁰ It is also broadly informed by the first author’s experience working on humanitarian affairs at IOM, and as a senior researcher on migrants’ rights at Amnesty International.

15.2 Context: IOM’s Accountability Deficit and the Potential Roles of Human Rights NGOs in Holding IOs Accountable

In terms of budget and staff, IOM is now among the largest IOs worldwide and is involved in a huge range of activities loosely organized under the banner of ‘migration management’, from providing humanitarian aid to displaced persons, gathering and disseminating migration data, and facilitating international talks on human mobility, to advising states on migration policies, training border officials, and delivering services to detained migrants. While IOM was created outside the UN, it became a related organization in the UN system in 2016, further increasing its international profile. Its facilitation of the Global Compact for Migration process and its position as the coordinator of the UN Network on Migration reflect the public authority IOM now exercises in the field of migration, alongside the prominent roles it now occupies in the humanitarian regime. As IOM has gained power and prestige, its actions and decisions have increasingly important consequences for vulnerable populations, including precarious migrants, IDPs and refugees.¹¹

Yet IOM suffers from an accountability deficit, fuelled in part by its imprecise mandate, organizational structure and culture, and has lagged behind other IOs in terms of establishing accountability mechanisms sensitive to human rights concerns and accessible to individuals affected by its interventions.¹² IOM’s formal mandate, laid out in its Constitution, is imprecise and includes no explicitly articulated obligation to protect or promote migrants’ rights.¹³ The agency receives almost no core funding from its member states, and is instead reliant on a project-based funding model that can foster competitiveness, undermine transparency, and incentivize IOM to stifle criticism of governments and undertake activities that bring in money needed for the organization to survive, but arguably serve states’ interests in controlling mobility over advancing the rights and wellbeing of migrants themselves.¹⁴ IOM has a reputation for operational efficiency, delivering services quickly and cost-effectively even in very challenging environments, sometimes at the expense of careful deliberation about protection and human rights concerns, which are seen by some IOM staffers as overly abstract or academic issues for a definitively action-oriented organization. It is also known for being highly deferential to states, many of whom have looked to IOM as an IO they can turn to in order to have migration ‘dirty work’ done with little push-back about human rights concerns.¹⁵

That said, IOM’s institutional discourse increasingly references migrants’ rights and protection concerns, and although the agency is sometimes portrayed as having no human rights commitments or obligations, this is incorrect.¹⁶ In addition to its general obligations under international law as an IO, it has initiated a number of internal policy processes that address (in varying degrees of specificity) IOM’s interpretation of, commitments to and obligations regarding key human rights norms and humanitarian principles. These include the development of the Migration Crisis Operational Framework (2012), the Migration Governance Framework (2015), the IOM Humanitarian Policy (2015), and the Framework for Addressing Internal Displacement (2017).¹⁷ The issue is the sufficiency of IOM’s policies and rhetoric, and the tensions and contradictions that remain between its evolving discourse and frameworks, and its more controversial (and even sometimes rights-violative) field operations.¹⁸ For example, in countries such as Indonesia, at the behest of the Australian government, IOM has infringed on the rights of people seeking protection, including by limiting their access to territory where they could claim protection.¹⁹ Such activities call into question IOM’s claims to be rights-based and ‘migrant-centric’.

Human rights advocacy groups could, in theory, make important contributions to assessing IOM’s policies and appropriately resolving these tensions, but the critical bent of most scholarship on IOM has not been matched by sustained critical attention from the influential international human rights advocacy organizations that often play important roles in both legitimating organizations and holding them to account for human rights norms.²⁰ What insights does the literature on NGOs and IO accountability offer into this disconnect? Within the international relations (IR) scholarship, rational institutionalists have privileged the actions of states in explaining changes in IO accountability, arguing that member states demand reforms from IOs when the costs of monitoring them or incurring liability from their actions are unfavourably high.²¹ On this view, pressure for IO reform, including certain forms of accountability, is driven by states and emerges when it is in their interests. In contrast, various constructivist scholars have broadened and complemented this picture by demonstrating how IOs may be prompted to ‘give themselves rules’ through processes of normative persuasion and socialization involving social interactions not only between IOs and states but also with civil society.²² While states may direct IO behaviour through hierarchical or contractual relationships, civil society organizations, particularly NGOs, can exert other forms of compulsory power. For some NGOs, this is tied to their claims to representative legitimacy; human rights NGOs also wield normative and symbolic power via their claims to impartiality and the production of objective truth, including through their involvement in investigating and documenting human rights violations.²³ Through normative interpretation, knowledge production, victim support, protest and mobilization, civil society actors may become a force for IO accountability, in part by destabilizing IOs’ claims and identities, shaping notions of appropriate conduct, and bringing into question IOs’ governing authority.²⁴ Civil society actors’ efforts to advance accountability are often most successful when they are able to demonstrate clear examples of harm or show the contradictions between IOs’ commitments and their actions on the ground, generating reputational costs.²⁵ These attributes and strategies put human rights NGOs in a potentially powerful position to examine IOM and hold it accountable.

That said, the existing literature offers scant insight into when and why NGOs do not push for greater accountability from IOs, even when there is a recognized need for improved accountability, and NGOs could in theory make important contributions on this front. Instead, much work on this issue has concentrated on explaining how NGOs have been able to successfully influence change in IOs.²⁶ However, a few additional points do stand out from the growing literature on civil society and IO accountability for the ensuing discussion of IOM. First, human rights principles are increasingly central to how civil society organizations, particularly advocacy NGOs, evaluate, legitimize, and sanction (e.g. ‘shame’) IOs. One consequence of this is that IOs face growing demands to demonstrate their legitimacy and justify their existence and performance. They are vulnerable to normative shifts in the interpretation of what they do and why they are needed, but at the same time, they may affect such normative shifts through their own roles as norm entrepreneurs.²⁷ In the case of IOM, this dynamic translates into multiple ways of evaluating its behaviour that go beyond a cut-and-dry application of legal standards. Second, NGOs may be powerful actors in the push for accountability, but their influence is also starkly limited. A particularly important limitation stems from the fact that many IOs and NGOs exist in mutually dependent relationships that work both for and against accountability.²⁸ Improved interaction and inclusion of NGOs in IO policymaking and programming can help resolve the ‘democratic deficit’ in global governance, while interactions with IOs can bolster NGOs’ own claims of political relevance and representativeness.²⁹ Interdependencies between IOs and NGOs are evident in relation to funding, but also other ‘goods’ such as access to data and policymaking processes. These interdependencies may create closer and more reliable mechanisms for consultation and debate in relation to accountability, but they may also undermine NGOs’ potential roles in advancing accountability by distorting their incentives to call out, pressure or persuade IOs to change their behaviour.³⁰ Third, in terms of civil society strategies and effectiveness in influencing IOs, it is increasingly recognized that NGOs rarely achieve their goals alone.³¹ Rather, to be effective, civil society actors often mobilize broad-based transnational coalitions or advocacy networks to engage other levers of institutional power capable of controlling or influencing IOs’ policies, practices, and decision-making processes.³² This may include targeting the executive heads of IOs, their member states and donors, and national parliaments and parliamentary networks, amongst other influential actors.³³ In particular, civil society actors looking to influence IOs must be able to strike a chord with states, appealing to their own accountability concerns.³⁴ With these insights in mind, we now examine the limited ways in which human rights NGOs have interacted with IOM over time, and perspectives on IOM held by human rights advocates; this history and these views are important to understand in order the explain the overall lack of sustained, strategic NGO advocacy targeting IOM.

15.3 Interactions between IOM and International Advocacy NGOs: Key Patterns

This section examines past, albeit limited, interactions between IOM and international advocacy groups, as a foundation for assessing their potential contribution to increased IOM accountability. Broadly, IOM’s relations with NGOs may be described as traditionally weak, albeit improving. UNHCR relies on NGO ‘implementing partners’ to deliver many of its programs, is often the target of NGO advocacy campaigns, and has held large, annual civil society consultations since the 1980s. In contrast, IOM implements most of its projects directly, has been less regularly targeted by NGO advocacy, and has been much slower to institutionalize mechanisms for civil society actors to access and influence the organization. Over the last ten to fifteen years, however, this dynamic has shifted somewhat, with IOM taking modest steps towards becoming more actively consultative with civil society, a development prompted by NGO advocacy and especially by senior IOM officials’ sense that civil society consultations and engagement processes are expected of ‘mature’ and serious IOs – a status they aspire to for IOM.³⁵

Increased interactions between IOM and NGOs were influenced by its involvement in the facilitation of migration policy dialogues. For example, in 2001 IOM established and opened up its International Dialogue on Migration to civil society organizations; its lead role in the Global Forum on Migration and Development (GFMD), beginning in 2007, also helped foster more routinized interactions with NGOs through the establishment of ‘civil society days’. Looking beyond interactions in the context of such policy dialogues, Amnesty’s 2003 statement to the IOM Council stressed the need for IOM to institutionalize mechanisms for consultation with NGOs and suggested establishing an NGO focal point or unit within IOM’s structure. These changes were finally made under the institutional restructuring introduced by Director General William Swing in 2010. In 2011, IOM introduced its Annual Civil Society Organization (CSO) Consultation. In addition to participating in the Annual CSO Consultation (and, in some instances, regional consultations), NGOs seeking to influence IOM can apply for observer status to the IOM Council, which allows for some engagement with IOM’s leadership and member states, although the agenda is set by IOM itself. During Swing’s time as Director General, the number of NGOs with observer status increased considerably. Civil society actors may make public statements during Council proceedings, a channel used by some NGOs.

While IOM-NGO interactions have thus increased in some ways, opportunities for NGOs to contribute their perspectives to IOM policies and practices are still deeply circumscribed.³⁶ For example, civil society groups have been invited to provide feedback on some major IOM policies but not on others, and many decisions with significant human rights repercussions are still taken behind closed doors.³⁷ Whether IOM recognizes an obligation to ‘render an account’ to civil society thus remains an open question.³⁸

15.3.1 Contrasting Engagement with IOM and UNHCR

One way of exploring this issue is through comparison of IOM and UNHCR and their relationships with civil society actors, particularly advocacy NGOs. Human rights NGOs generally assume that UNHCR will make itself available to discuss and explain its conduct and decisions concerning the protection and governance of refugees.³⁹ UNHCR’s self-identification as an advocate for refugees informs a generally mutual expectation that the agency demonstrate that its actions are in the best interests of refugees, and that this includes being responsive to advocacy NGOs and other civil society actors who also claim to be representing refugees’ rights and interests.⁴⁰ UNHCR’s specific legitimation needs, in other words, have created openings and opportunities for civil society to influence its policies and accountability.

Although IOM increasingly makes claims to represent and advocate for the rights of migrants, it has not exhibited the same levels of responsiveness or answerability to civil society stakeholders for its actions, in part because unlike UNHCR, IOM’s legitimacy claims have not historically been seen to require this. Instead, IOM’s value and perceived legitimacy from the perspective of its member states has stemmed from other qualities such as its responsiveness, flexibility, and grounding in field operations.⁴¹ Broadly speaking, international advocacy groups’ interactions with IOM have been much more limited, fluid and dependent on individual personalities and relationships.⁴² Given IOM’s ingrained deference to states and its ‘business model’ of attracting and efficiently executing contracted projects, advocacy groups are reportedly met with suspicion, silence, and hostility from IOM representatives in their pursuit of information and accountability from the organization.⁴³ As one leading human rights advocate expressed it: ‘If [my organization] flags UNHCR policies, performance, etc. in a report, [we] will get a call or meeting from a regional director at UNHCR to follow up. But with IOM, they don’t engage with NGOs. They don’t feel accountable to them’.⁴⁴

A systematic examination of reports from international human rights NGOs demonstrates that while these groups have regularly investigated and issued recommendations to UNHCR, they have not been a reliable force for holding IOM to account in relation to human rights standards. This suggests that the weak accountability relationships between IOM and human rights advocacy NGOs are not only a result of IOM’s actions and attitude but also the strategies and priorities adopted by advocacy organizations themselves. For example, in reports on migration and displacement issued by Amnesty International and HRW from 1998 to 2020, IOM’s activities are remarkably under-examined, with IOM’s work receiving far less scrutiny than UNHCR’s. Only slightly more than a quarter (27.8%) of 183 reports on migration and displacement produced by HRW from 1998 to 2020 made reference to IOM. Of these, only 14.2% analysed IOM’s role and only 9.1% explicitly referenced IOM in their recommendations. Amnesty International’s reports showed even less interest in IOM. Only 13.7% of Amnesty’s reports related to migration and displacement directly mentioned IOM; 9.6% analysed IOM’s role and 2.4% issued recommendations to the organization. In contrast, between 1998 and 2020, 66.5% of HRW reports and 46.5% of Amnesty reports on migration and displacement mention UNHCR; 47.7% of HRW reports and 21.9% of Amnesty reports analyse UNHCR’s role; 44.9% of HRW reports and 46.5% of Amnesty reports make recommendations to improve UNHCR practice. Some discrepancies in the level of attention devoted to these organizations are to be expected: IOM remains a smaller IO than UNHCR (particularly in terms of budget). Neither agency played a major role in all of the contexts addressed in these reports, but UNHCR is specifically mandated to work with refugees, who are often a more high-profile or visible population and may therefore be more likely to attract the attention of international advocacy NGOs. Nonetheless, the difference is striking, particularly as some of these reports neglect IOM even when it was actively involved in the cases at hand, or could potentially have made valuable contributions if urged to do so.

15.3.2 2002–2007: Modest but Increased Attention from Major Human Rights NGOs

A closer, historical reading of statements on IOM issued by Amnesty and HRW suggests that perhaps the strongest period of these NGOs’ scrutiny of IOM occurred between 2002 and 2007. This timeframe overlaps with significant growth in IOM’s roles and budget, renewed conversations on global migration governance, and organizational involvement in programmes such as Australia’s Pacific Solution and ‘assisted voluntary returns’ (AVR) from European countries, which raised major human rights concerns.⁴⁵ Four key issues attracted the interest of Amnesty and HRW, prompting them to more thoroughly investigate IOM’s actions in the field and release a series of reports and public statements critiquing IOM. First, these NGOs directly addressed IOM’s lack of a formal protection mandate or ‘standard of accountability’ to orient its actions, arguing that IOM was missing the institutional safeguards necessary to ensure its activities respected international refugee and human rights norms.⁴⁶ The NGOs contended that as IOM expanded, these shortcomings posed particular risks to the ability of refugees, asylum seekers and other migrants to enjoy their fundamental rights. This is linked to their second set of concerns related to IOM’s functions within an increasingly restrictive migration policy environment. Amnesty and HRW offered legal arguments on why IOM should not perform certain functions – most importantly, the management of offshore detention centres – when state policies clearly infringed upon the human rights of migrants and asylum seekers, and identified serious procedural flaws in how IOM performed such services.⁴⁷ In particular, they argued that IOM’s assisted return programmes often involved ‘directly and indirectly’ coercive methods, which pressured people to prematurely return to situations where their lives were at risk.⁴⁸ In light of this, HRW called upon IOM to cease its involvement in detention as well as in assisted returns, unless it could prove with certainty that returns were voluntary and compliant with international norms.⁴⁹ Third, both organizations were unconvinced IOM provided a suitable forum for global policy debates on migration. This reflected their general unease with migration management as an orientating concept for IOM’s work. They worried that the language of ‘control and containment’ attached to IOM’s migration management strategies signalled a practical and rhetorical shift away from the focus on states’ human rights obligations.⁵⁰ Finally, both organizations were concerned that IOM was overstepping its mandate at the request of states, effectively moving refugee issues into the migration regime.⁵¹ In particular, IOM’s failure to coordinate with UNHCR on matters of asylum and protection fuelled mistrust of the organization. The following excerpt from a joint 2003 statement to the IOM Council brings together some of these different layers of critique:

Amnesty International and Human Rights Watch are also concerned that IOM should not provide an alternative agency for states where they prefer to avoid their human rights obligations or where UNHCR has declined engagement in a given situation on the basis that it sees grave problems or dangers. Even with the best of motives, IOM involvement in such situations can end up unwittingly facilitating abuses and harming migrants, refugees and asylum seekers. IOM’s presence should not have the effect of prolonging untenable state policies and practices which themselves fail to comply with international human rights standards. Such policies range from certain border control and deterrent measures, to arbitrary and unlawful detention to encouraging premature return to countries of origin. In such circumstances, states should be required to act in their own name and should be held directly accountable for their actions.⁵²

During this period, Amnesty and HRW made several recommendations to the IOM Council, including proposals for strengthening its internal and external oversight mechanisms to ensure greater normative compliance. For instance, they recommended that IOM develop mechanisms to answer abuse allegations; refrain from undertaking protection roles for which it lacked a mandate or expertise; and establish clear criteria to assess the legitimacy of its operations.⁵³ In 2007, HRW further recommended that IOM apply ‘strict human rights conditionality’ to its migration management projects, specifically those related to border management, to avoid strengthening the capacities of states whose practices breached international law.⁵⁴

It appears that in this early period of comparatively focused engagement and indeed in the years since, leading international advocacy NGOs failed to significantly catalyse IOM reform. Aside from heightening IOM’s sensitivities to its reputational vulnerabilities, little substantive impact can be traced from this early period of peak – but still modest – engagement from major international human rights NGOs. Only minimal changes were made in line with some of the observations and recommendations made by Amnesty and HRW, and these mainly pertained to finessing IOM’s language around the relationship between migration management and human rights. While analysing why these advocacy efforts were not more fruitful is largely outside the scope of this chapter, a few observations can be made: A key reason why these early analyses and critiques, while normatively strong and well-evidenced, did not impact IOM’s behaviour is that they were not backed up by a particularly sophisticated, sustained or effective advocacy strategy that concertedly targeted multiple channels for pressuring and persuading IOM. Leading advocacy groups did not recruit a strong network of other NGOs to the cause, nor did they engage with IOM’s donors, domestic parliaments in key member states, or other IOs (e.g. UN actors) capable of exerting leverage against IOM. Nor were there strategic attempts to take advantage of ongoing, piecemeal changes to IOM policies and consultation practices. These factors limited the impact of Amnesty and HRW’s advocacy efforts in this period.

15.3.3 2008–2021: Reduced Engagement from Advocacy NGOs

Analysis of Amnesty and HRW reports suggests that these organizations have largely retreated from their brief focus on IOM in the early 2000s, when they attempted to illuminate and constrain some of IOM’s most controversial and risky activities, particularly in relation to AVR programmes, such as those run on behalf of Australia. The fundamental logics underpinning these programmes remains largely unchanged, yet there has been a tendency to overlook IOM’s responsibility for organizing returns under circumstances that advance states’ interests over migrants’ rights, and contribute (if indirectly) to deportation and containment systems. For example, Amnesty has not devoted serious attention to IOM in reports on the Central American-US migration corridor, Algerian expulsions of Nigerians, and the externalization of EU migration policy, although IOM has had significant roles in these contexts. Similarly, while HRW offered robust critiques of the IOM-Australia relationship in its 2002 report By Invitation Only, more recently it adopted a light touch in commenting on IOM’s AVR work in Central America.⁵⁵ Local human rights groups in Greece have condemned the Greek state for pressuring asylum seekers to take up IOM’s return assistance, but in its discussion of this issue, HRW stops short of carefully analysing and critiquing IOM’s role and obligations in this case.⁵⁶ In another example, an Amnesty report on EU externalization in Libya questions IOM’s ‘voluntary humanitarian return’ programmes and their compliance with the principle of voluntariness, given that many asylum seekers and other migrants are making decisions about returning while being detained in abysmal conditions in Libya, having been prevented from accessing EU territory. While Amnesty’s report suggests that IOM’s assisted returns may place migrants and asylum seekers at risk of harm and refoulement, it solely targets EU states and the Libyan government to change their policies around detention, pushbacks and asylum, skirting IOM’s role and responsibilities in return processes.⁵⁷

On occasion, reports from human rights NGOs do remind IOM of its responsibilities and obligations under international law or apportion blame to IOM for its part in controversial or rights-violative programmes. For example, a 2015 Amnesty report on the right to adequate housing in post-earthquake Haiti explicitly mentions IOM’s involvement in events that led to police attacks and violence at a camp where residents resisted enrolling in IOM’s rental subsidy programme, which was intended to enable camp closures.⁵⁸ By and large, however, these reports suggest that influential human rights NGOs have not consistently worked to hold IOM accountable, even in cases in which it plays complex and concerning roles. Perhaps most strikingly, major international advocacy organizations concerned with migration and displacement were virtually silent during the negotiation of IOM’s entry into the UN system as a related organization in 2016. Arguably, this could have been an opportune moment to press for key reforms related to IOM’s mandate and accountability deficits.⁵⁹ Instead, human rights NGOs – admittedly already stretched in responding to the global migration ‘crisis’ at the time – seem to have bypassed the opportunity to try to shape this watershed moment in IOM’s institutional development, despite its considerable long-term impacts on migration governance, humanitarian action, and the rights and wellbeing of migrants.

15.4 Why Are Many Human Rights NGOs Disengaged from IOM?

Having discussed the rather surprising disengagement of major international human rights advocacy organizations from accountability efforts targeting IOM, this section addresses the key question this analysis raises: why have major human rights groups not been more involved in pressing for increased accountability from IOM? Our interviews suggest that perceptions of IOM amongst human rights advocates are increasingly nuanced and multi-faceted. Some advocates have followed and welcome institutional developments at IOM over the last decade, such as its attempts to clarify its position on human rights and humanitarian principles, and to better institutionalize knowledge of protection principles amongst its staff. IOM’s adoption of human rights language to frame its work has also created the impression in some quarters that protection features more prominently within IOM’s goals and priorities as the ‘UN migration agency’. Against this backdrop, we identify three issues that have nonetheless limited international advocacy NGOs’ engagement with IOM. First, institutional developments at IOM over recent decades and the existence of multiple standards for considering IO accountability make judgements about IOM’s performance more ‘slippery’ and complex. Second, IOM’s vague mandate, and its lack of a formal protection mandate have resulted in continued confusion about IOM’s role and responsibilities, and have made some NGOs reluctant to make IOM an advocacy target. Third, many organizations are increasingly dependent on IOM for access to particular populations, and for data gathered or managed by IOM, which advocacy organizations use to ground their own analysis, claims, and advocacy functions. This has contributed to the legitimizing of IOM and arguably dissuaded more direct confrontation with the organization.

To be sure, these are not the only factors that have shielded IOM from more targeted advocacy from international human rights NGOs, akin to the ways in which these groups have engaged other IOs such as UNHCR. For example, IOM’s expansion is closely linked to its assumption of greater roles and responsibilities vis-à-vis IDPs and international migrants who are not refugees; indeed, IDPs are now the largest group of IOM ‘beneficiaries’.⁶⁰ Yet these populations typically receive less attention from the media and advocacy groups than refugees do, which may also help explain why prominent human rights NGOs have been less focused on IOM compared to UNHCR.⁶¹ We focus on these three factors not because they tell the full story, but because our interviews suggest that they have been particularly influential in shaping this disconnect.

15.4.1 Implications of Institutional Developments and Diverse Standards of Accountability

Recent decades have witnessed considerable institutional change at IOM. The organization has, for instance, more actively adopted human rights rhetoric; employed more staff with protection expertise; and taken (tentative) steps to clarify its position on human rights and humanitarian principles through various frameworks and policies, and better institutionalize knowledge of protection principles amongst its staff.⁶² Our interviews suggest that international human rights advocates have varying levels of knowledge of these developments; compared to UNHCR, IOM remains poorly understood among refugee, IDP and migrants’ rights advocates. Yet many are broadly aware of these developments and see them as an improvement over the situation in the 1990s and early 2000s, when IOM was reluctant to acknowledge its protection responsibilities and sometimes openly defiant of human rights critiques. As one human right advocate expressed it, IOM ‘has definitely become a lot more sophisticated, it’s become a lot more mainstream, in the sense of adopting “UNHCR’s language” around protection issues’.⁶³ Some influential advocates with longstanding knowledge of IOM suggest that it has reached a turning point in terms of recognizing international norms and its obligation to respect them.⁶⁴ Among many advocates, IOM now seems to be viewed less as an organization that refuses to conform to established rules, and more as one that has diverse roles (including but not limited to protection) and some compliance problems, but perhaps no more so than other international organizations.

While these developments may create the impression that focused advocacy interventions are less necessary today than they were in the past, staff at many prominent NGOs do remain concerned about IOM’s practices, accountability deficits, and decision-making processes, although they generally stop short of transforming these concerns into focused advocacy interventions. Many of our respondents criticized IOM for its continued institutional bias toward serving states over migrants; its weak normative basis; and lack of coherence in its work.⁶⁵ Many saw its managerial style and focus on ‘efficiently’ running large projects as undermining its claims to be ‘solving’ migration problems.⁶⁶ For example, one advocate complained that IOM’s overriding focus on ‘the numbers’ – that is, on rolling out interventions and gathering data – has blinded it to the reality that ‘if your job is’ at least in part ‘to protect people, [doing] less may in fact be more’.⁶⁷ Amongst human rights NGOs, IOM also has a lingering reputation for being willing to ‘do anything for money’, although some argue that IOM’s lack of independence from its donors is not necessarily that different from other IOs, such as UNHCR.⁶⁸

Importantly, our interviews underscored that human rights standards are not the only touchstone guiding advocacy NGOs’ assessments of IOM’s conduct. Benchmarks such as institutional relevance, expertise, capacity, and operational effectiveness also shape impressions of the organization and structure perceptions of its legitimacy, even among human rights NGOs. Whether explicitly or implicitly, advocates use multiple and sometimes competing standards to interpret and assess IOM’s role, which can result in contradictory views about the organization and helps explain why human rights advocates may be hesitant or disincentivized to contest behaviours they suspect to be rights-violating or detrimental to respect for migrants’ rights. For example, while many of our respondents expressed concerns about IOM’s lack of knowledge about or adherence to human rights standards, they also expressed highly favourable views of IOM’s operational and ‘field-based’ characteristics. Many suggested that because of these characteristics, IOM added ‘incredible added value’, particularly in emergency contexts where it plays critical roles in addressing unmet humanitarian assistance needs, such as in relation to IDPs and vulnerable cross-border migrants who do not qualify for refugee status.⁶⁹ Despite its shortcomings on protection issues, many felt that IOM played a pivotal role in executing tasks that fall between the cracks of UN agencies’ mandates and operational competencies.⁷⁰ Illustrating how appeals to managerial standards – such as quantity, efficiency, and effectiveness – can help shape opinions and legitimize IOs, several respondents drew upon such concepts to suggest that IOM had exceeded their expectations or sometimes outperformed other agencies such as UNHCR.⁷¹ While more systematic evaluations of IOM projects would of course be needed to more fully substantiate such impressions, these rather positive observations are noteworthy in part because they contrast strikingly with the censorious tone of much of the academic scholarship on IOM, and help to explain why IOM has not attracted more rigorous critique from international advocacy NGOs.

In terms of accountability, having multiple reference points for evaluating IOM can have the effect of tempering or muting criticism about its adherence to human rights norms – particularly when IOM’s involvement in a particular operation results in tangible benefits, such as the provision of emergency aid. This dynamic was evident for instance in the case of the response to the Rohingya refugee crisis in Bangladesh, in which IOM initially took on a leading coordination role. In our interviews, several advocates knowledgeable of the situation criticized IOM for agreeing to the Bangladesh government’s request for it to lead coordination efforts in the emergency response, pointing out that this was UNHCR’s responsibility. By overstepping its mandate, they argued, IOM endangered the process of recognizing the Rohingya as refugees, diminished the response’s focus on protection, and fuelled competition and coordination problems with UNHCR.⁷² However, advocates also conceded that access to refugees and living conditions in some camps improved considerably as a consequence of IOM’s operational effectiveness and its relationships of trust with state authorities.⁷³ As one advocate reflected, IOM positioned itself as a ‘gatekeeper’ to both the population and the government, and arguably undermined the possibility of achieving formal refugee status for the Rohingya. Yet, he suggested, there was broad if grudging acknowledgement that formal recognition of the Rohingya was unlikely in any event, as Bangladesh is not party to the 1951 Refugee Convention, and that in an incredibly difficult situation IOM enabled small, gradual improvements, ‘because the Bangladesh government feels it has a partner it can trust’.⁷⁴

This example reflects the conflicting sentiments often embedded in advocates’ perceptions of IOM. Weighing up IOM’s performance against competing standards can deflect attention from rights-based concerns about the organization’s practices.⁷⁵ Within extremely complex political and operational environments, advocates can sometimes be persuaded by IOM that they should tailor their expectations to the realities on the ground, rather than push for ‘unrealistic’ human rights goals.⁷⁶ Adopting such perspectives can dilute or divert concerns about IOM’s roles and activities that persist despite developments in the organization’s discourse, policies and practices on rights protection.

15.4.2 Consequences of IOM’s Mandate and Structure for NGO Accountability Efforts

Accountability scholars emphasize that accountability processes presuppose certain questions, such as accountability ‘for what’ and ‘towards whom’?⁷⁷ In attempts to hold IOs to account, these questions naturally lead to an examination of the constitutional mandates that guide them, as well as policies or commitments that clarify the rules to which an IO understands itself to be bound in the execution of its functions. Such an exercise can be challenging in relation to IOM, as its formal mandate as articulated in the IOM Constitution is primarily a vague, open-ended list of services it may provide states in managing migration, and it is only in recent years that IOM has started to more concertedly develop publicly available frameworks and policies that begin to clarify the principles it accepts it is bound to respect. Coupled with its highly decentralized structure, IOM’s ill-defined formal mandate has offered it substantial leeway to define and expand its activities, but at the expense of confusion and debate about its proper role.

IOM’s imprecise mandate and decentralized institutional structure have influenced NGO engagement in holding IOM accountable in three main ways. First, NGO advocates often struggle to comprehend and critically engage with the breadth of IOM’s tasks and responsibilities across different jurisdictions and areas of governance.⁷⁸ As one advocate indicated: ‘To keep track of IOM you really have to keep track of different contexts and the changing situations and statuses of people. It is already such a complex situation, and then you have to try to locate what IOM is doing in respect to that’.⁷⁹ IOM’s approach and reputation in one area of intervention may not necessarily travel to other areas, giving rise to compartmentalized views of the organization among NGO advocates, depending on the particular fields in which they work (e.g. humanitarian response, labour migration, climate change, etc.). Second, in the absence of a well-defined mandate grounded in a specific body of law, human rights advocates may lack clarity about IOM’s legal obligations and the standards to which it can and should be held to account.⁸⁰ Certainly, a lack of sustained interest from civil society actors in IOM and its ongoing policy development processes has compounded this problem, as has IOM’s traditional evasiveness about its own legal obligations.⁸¹ It is only recently, following IOM’s entry into the UN system as a ‘related organization’, that IOM’s Legal Office confirmed that it recognizes that IOM is obliged to uphold all common laws and principles that bind UN agencies, and even then, many human rights advocates concerned with migration appear unaware of this development.⁸² Last, as IOM lacks a formal mandate to promote human rights or protect a specific group, international human rights advocates have tended to underestimate or dismiss the significance of IOM’s activities, and the influence the organization can have on states’ policies and practices – for better or for worse.⁸³ This limited recognition of IOM’s agency and authority in global governance can inadvertently shield the organization from demands for accountability.⁸⁴

Differences in human rights NGOs’ approaches to advocacy targeting IOM and UNHCR (and their comparative neglect of IOM) underscore the importance of organizational mandates and institutional structure in attracting NGOs’ attention and positioning civil society as potentially powerful proponents of IO accountability. Our interviews suggested that UNHCR’s recognized authority, its strong protection mandate for a legally defined group, and its explicit legal obligations and policies rendered it a more attractive advocacy target than IOM. Many NGO advocates are well-versed in UNHCR’s roles in refugee protection, and are able to point to UNHCR’s Statute, which establishes its responsibilities in accordance with refugee law and protection principles, and to the 1951 Refugee Convention which confers supervisory responsibility to UNHCR for its implementation.⁸⁵ From the perspective of NGO advocates, these instruments and related UNHCR policies provide a robust framework for demanding accountability from the organization. Furthermore, advocates can engage with UNHCR’s Executive Committee in debates on programming and budgets. In contrast, advocates we interviewed perceived that IOM’s Constitution offers little leverage for human rights NGOs to demand accountability, and even generates confusion regarding IOM’s role and legal obligations. (IOs have human rights obligations irrespective of their constitutions, but our interviews suggested that explicit, constitutional obligations were significant in garnering NGOs’ attention and informing advocacy strategies.) IOM’s amorphous mandate makes it more difficult for advocacy NGOs to bring powerful member states on-side in accountability efforts, as there is a lack of consensus around IOM’s purpose and proper role. Accountability efforts are further constrained by the fact that IOM does not run large programmes but myriad projects which are difficult to monitor, and follow budgets set outside of the oversight of the IOM Council. Given these differences, UNHCR offers a much better opportunity structure for external scrutiny and activism than IOM. Advocates’ preference to scrutinize and engage with UNHCR – as demonstrated by their reports and testimonies – also reflects UNHCR’s greater perceived importance. By nature of the role that UNHCR plays in the refugee regime and the weight of its decision-making, monitoring UNHCR’s actions and seeking to persuade the organization to acknowledge and address deficiencies is often deemed strategically smart, and vital to advocates’ goals. Meanwhile, IOM’s nebulous mandate makes it seem like a less important, and less promising, advocacy target.⁸⁶

15.4.3 Dependency on IOM as a Data Source and Gatekeeper

IOM’s roles as a gatekeeper to particular populations, especially in camps, and as a leading provider of data on migration and humanitarian crises also create challenges for advocacy groups who may be interested in pushing for increased accountability from IOM.⁸⁷ Human rights organizations are increasingly reliant on IOM for access to victims of human rights violations and information about their plight. In migration governance, the quantitative data produced by IOM has become central to many NGOs’ assessments of the situation of mobile populations.⁸⁸ That international human rights NGOs now base many of their own claims and analyses on IOM’s data is a new dynamic that raises questions about the extent to which the NGO consumers of IOM data are willing to scrutinize and confront the organization.⁸⁹ Organizations such as the Internal Displacement Monitoring Centre (IDMC), for example, have developed formal partnerships with IOM, bringing together their technical, operational, analytical and advisory capacities.⁹⁰ Their partnership involves joint fundraising and aims to produce ‘authoritative recommendations for policies to integrate displacement into broader policy agendas’, amongst other goals.⁹¹ Amnesty and HRW also rely on and incorporate IOM data into their reports, even as they sometimes disagree with how IOM groups and categorizes populations: between 1998 and 2020, 8.81% of Amnesty reports and 10.9% of HRW reports on migration and displacement drew on IOM data. Reliance on IOM data is increasing: between 2015 and 2020, 13.3% of Amnesty reports and 14.3% of HRW reports used IOM data. Precisely how these intensifying data and access relationships shape NGOs’ willingness and incentives to monitor and speak out about IOM remains to be seen. However, these dependencies are an aspect of the social relations between IOM and advocacy organizations that cannot be ignored when contemplating NGOs’ actual and potential role in holding IOM to account.

A final point bears making on why advocacy NGOs have not actively and consistently pushed for IOM accountability in relation to human rights standards. The human rights industry itself thrives off clear narratives and easily identifiable perpetrators to generate moral outrage.⁹² The legal and moral murkiness that often surrounds IOM’s practices defies this requirement of much contemporary activism. Many advocates themselves admit that they lack the knowledge and resources necessary to probe the gaps between IOM’s institutional rhetoric and its more contentious practices.⁹³ States’ abuses of migrants’ rights are often much more brazen, making them more immediately pressing targets for NGO advocacy. Thus, even when advocacy NGO staff have moral or legal concerns about what they witness in the field, they are unlikely to pursue specific accountability issues involving IOM unless they can produce a clear-cut case of harm and wrongdoing – one that meets the high thresholds of evidence set by professionalized advocacy organizations. Among the advocates we interviewed, some had documented IOM’s involvement in rights violations but, for the reasons discussed above, hesitated to ‘go public’ with their findings.⁹⁴

15.5 Conclusion: Strengthening Advocacy NGOs’ Contributions to IOM Accountability

Enhancing IOM’s accountability to human rights standards, to advocacy NGOs working on behalf of victims of rights violations, is a two-way street. Despite longstanding concerns about some IOM programmes, particularly its work on returns and in detention centres, international human rights NGOs have not been at the forefront of promoting organizational learning or institutional change within IOM in relation to respect for human rights norms. Instead, these pressures have largely come from certain member states, and from inside the organization – particularly from proponents of rights-based approaches among IOM staff, and from senior officials aware that the organization’s continued expansion and entrance into the UN system required a clearer commitment to human rights and protection standards.⁹⁵ This is not to say that human rights groups have been wholly disengaged from processes of institutional reform and efforts to promote increased accountability. While modest, waves of human rights advocacy in the early 2000s helped IOM internalize the sense that failing to be seen to follow international rules and norms can carry reputational risks. Human rights organizations have also encouraged IOM to be more consultative. Yet compared to the role they have played with UNHCR, human rights NGOs have not served as effectively as watchdogs involved in monitoring and calling out IOM’s inappropriate practices. As we have shown, this state of affairs is not only the result of particular weaknesses in international human rights advocacy efforts; it is also linked to IOM’s own narrow interpretation of its obligation to render an account and justify what it does to civil society. As an organization that has framed its value to the world primarily in terms of providing operational services for states, IOM does not appear to see the information, analysis, methods and advice provided by human rights NGOs as important to the success of its operations, or how it defines success in the first place.

Certainly, international human rights NGOs could do much more to push IOM to be more transparent and accountable to the populations affected by its actions and to the public at large, especially in terms of ensuring that it lives up to its rhetoric and claimed commitments to human rights and related humanitarian principles. For a start, advocacy organizations could better familiarize themselves with IOM’s diverse roles, policies and commitments. Some key instruments that may form the basis of analysis include IOM’s Migration Governance Framework (2015), Migration Crisis Operational Framework (2012), Humanitarian Policy (2015), Data Protection Policy (2010), and Framework for Addressing Internal Displacement (2017). Understanding how IOM’s entanglements with different UN mechanisms and its status as a ‘related organization’ in the UN system affects its legal and political accountability is also integral to improving the current state of advocacy toward the organization. In the various countries where international advocacy organizations analyse human rights conditions and document violations, there is a need for them to better unpack and scrutinize IOM’s discourses on human rights, humanitarianism, and accountability that legitimize its activities, and to evaluate what it claims against the interests and powers that are being served by IOM’s interventions. Because migration is a such contentious political issue, international human rights organizations will need to form effective alliances between themselves, domestic NGOs and grassroots associations, concerned member states (and their domestic legislators), and like-minded allies inside the organization to achieve greater accountability. Finally, when international human rights NGOs do in fact document IOM’s involvement in human rights violations, they should use their position and resources to support victims to submit claims to IOM’s mechanisms for internal oversight and redress, with a view to improving access to adequate remedies, and to testing and strengthening IOM’s accountability systems. As a starting point, IOM should make a practice of systematically reflecting on and responding to concerns raised by human rights advocacy NGOs; strengthening and expanding fledgling civil society consultation processes; and publicly recognizing the important role that external NGO scrutiny can play in strengthening IO accountability. IOM member states, particularly donor officials, should use their leverage to call attention to recommendations for improved accountability raised by human rights NGOs, and press IOM to respond appropriately. These suggestions certainly do not exhaust the ways in which accountability relationships between IOM and international human rights NGOs may be strengthened, but they hopefully provide a useful starting point.