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.Footnote 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,Footnote 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.Footnote 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’.Footnote 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’.Footnote 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’.Footnote 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’.Footnote 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.Footnote 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.Footnote 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:

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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ³⁰ Moments of crisis and contingency, then, should represent opportunities for powerful states to steer IOs in their preferred direction.Footnote 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.Footnote 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’.Footnote 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.Footnote ³⁴

We adopt a middle-ground position between these two poles.Footnote 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.Footnote 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,Footnote ³⁷ and the lack of clearly mandated tasks opens the way for IOM to venture into various areas.Footnote 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.Footnote 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.

7.3.1 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote 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.Footnote 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 UNHCRFootnote ⁴⁸ – 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.Footnote ⁴⁹ That the offer was refused and IOM given the leadFootnote ⁵⁰ 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’Footnote 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.Footnote 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.Footnote ⁵³ However, the account given to us in an interview by Bill Hyde,Footnote 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.Footnote 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 CityFootnote ⁵⁶ 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.Footnote 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,Footnote 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’.Footnote 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’.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote 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.Footnote 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.

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.Footnote 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.Footnote 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’.Footnote 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.Footnote 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’.Footnote ¹⁸ The agency requires a request from a member state or from the UN to carry out its activities in a particular country.Footnote 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.Footnote 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.Footnote ²¹ In 2019 they released a report on unearmarked funding trends, for transparency and to encourage other donors to shift away from earmarking.Footnote ²²

IOM is highly ‘projectized’ as many scholars have noted.Footnote 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.Footnote 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.Footnote 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.Footnote 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’.Footnote ²⁷ IOM has a stronger tendency towards ‘bilateralization’ than UNHCR and many other UN-related organizations.Footnote 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.Footnote 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.Footnote 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.Footnote ³¹ States are also less concerned with policy or mandate expansion at IOM council meetings than they are with UNHCR’s mandate.Footnote 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’.Footnote 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.

8.3.1 Natural Disasters and Humanitarian Operations

In the early 2000s, IOM became more engaged in natural disasters and humanitarian operations.Footnote 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:

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’.Footnote 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’.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote ⁴² This staff member maintained that the IPCC report gave IOM the legitimacy and inspired its ‘willingness’ to work on the issue.Footnote 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’.Footnote 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.Footnote 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.Footnote ⁴⁶ The main reason, according to one IOM staff member, was that states had neither awareness nor interest in the issue.Footnote ⁴⁷ Another IOM staff member explained that states asked ‘what does IOM have to do with it? Is this [environmental migration] a real issue?’Footnote ⁴⁸ IOM needed to do more research and awareness-raising to make it a priority for states.Footnote 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’.Footnote 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’.Footnote 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’.Footnote 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’.Footnote 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’.Footnote 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.Footnote ⁵⁵ No other member state pledged funding for IOM on climate and migration.Footnote 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.Footnote 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.Footnote ⁵⁸ This suggests there was an acknowledgement of the issue but not explicit support for IOM’s engagement with environmental migration.Footnote 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.Footnote ⁶⁰ The conference’s primary objective was to raise awareness of the human security challenge of climate change for the most vulnerable people.Footnote 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.Footnote 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’.Footnote 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’.Footnote ⁶⁴ They frequently published research reports and participated in events with governments and universities on the topic.Footnote ⁶⁵

In 2008 IOM instigated a working group on climate change, displacement, and migration in the IASC.Footnote 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’.Footnote ⁶⁷ This work subsequently became the basis for the Nansen Initiative, led by UNHCR and the Norwegian government.Footnote ⁶⁸ Through the IASC IOM also pushed for migration to be accepted as an adaptation strategy under the UNFCCC text.Footnote ⁶⁹ IOM did not want migration to be seen simply as a ‘failure of adaptation’.Footnote 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.Footnote 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.Footnote 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’.Footnote 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.Footnote 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’.Footnote 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.Footnote ⁷⁶ The resulting Compendium of IOM’s activities in Migration, Climate Change, and the Environment covered a broad range of activities in thirty countries.Footnote ⁷⁷ The Compendium was a major enterprise due to the decentralized nature of the organization.Footnote 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’.Footnote 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.Footnote 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.Footnote 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’.Footnote 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]’.Footnote 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.Footnote 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’.Footnote 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:

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.Footnote 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’.Footnote ⁸⁸ He reiterated that migration was not a ‘worst case scenario’ but that it ‘should be part of our response to climate change’.Footnote 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:

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.Footnote 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’.Footnote ⁹² IOM could claim it had tacit consent, given there was no vocal disagreement, for continuing research, conferences, and submissions on climate migration.Footnote 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.Footnote 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’.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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’.Footnote ¹⁰¹ IOM could not directly access the adaptation fund and so established a partnership with the Asian Development Bank (ADB) to access the fund.Footnote 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.Footnote 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.

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’.Footnote 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.Footnote 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.Footnote 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,Footnote ⁴⁹ the 2014–2016 Ebola epidemic in West Africa,Footnote ⁵⁰ and those from the Dominican Republic into Haiti following legislative changes that threatened Haitian immigrants and Dominicans of Haitian descent with deportation.Footnote 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.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote ⁵⁶ The resource-intensive daily updates this required reportedly led to a postponement of a planned revision of the flow monitoring methodology.Footnote 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.Footnote ⁵⁸ Its overall staff structure in 2019 included 438 technical staff and 6,170 data collectors.Footnote 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.Footnote 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.Footnote 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.Footnote 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’.Footnote ⁶³

While the DTM is considered a ‘money-making machine’Footnote 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.Footnote 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.Footnote 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.Footnote 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),Footnote 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,Footnote 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.Footnote 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.Footnote ⁷¹ While IOM is increasingly making forays into the use of advanced data collection technologies like high-resolution satellite imagery,Footnote 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.Footnote ⁷³ Key informants – 166,379 of whom were involved in DTM operations in 2019 aloneFootnote ⁷⁴ – 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.Footnote ⁷⁵ The DTM methodology then foresees a stage of validation, for example through assessing the consistency between the information provided by different key informants.Footnote ⁷⁶

While the use of local enumerators conducting interviews with key informants is popular among many international aid organizations,Footnote 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.Footnote 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),Footnote 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).Footnote 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.Footnote 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’.Footnote ⁸² In other country contexts, DTM data largely amounts to a compilation of government figures with little or no verification.Footnote 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.Footnote ⁸⁴ This manifests in inconsistent methodologies for data collection, analysis and validation between countries.Footnote 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.Footnote 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,Footnote ⁸⁷ in order to increase their ‘claim to resources or jurisdiction over particular policy areas’.Footnote 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)Footnote 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.Footnote 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.Footnote ⁹¹ In 2020, DTM data on internal displacement was used in 80% of all humanitarian needs overviews and humanitarian response plans.Footnote 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,Footnote 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.Footnote 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)Footnote 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),Footnote 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.Footnote 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.

9.5.1 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.Footnote 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.Footnote 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.Footnote 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.’Footnote 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.Footnote 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.Footnote ¹⁰⁴ Irrespective of the subsequent contextualization of DTM data (in these same reports, but also by external actors)Footnote 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.Footnote 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.’Footnote 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.Footnote 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,Footnote 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,Footnote 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.Footnote 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’),Footnote 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.Footnote 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 wayFootnote ¹¹⁴ – echoing Read et al.’s observation that ‘the enthusiasm for […] data is vastly outstripped by the capacity to meaningfully analyse it’.Footnote 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.Footnote ¹¹⁶ At the same time, European governments regarded DTM data as a possible source of evidence of the effectiveness of EU deterrence strategies.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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’,Footnote 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.

9.6.1 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),Footnote 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.Footnote 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’Footnote 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.Footnote 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.Footnote 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 qualityFootnote ¹²⁸ – is capable of producing the high quality disaggregated data on displaced populations that are essential for moving towards durable solutions.Footnote 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.Footnote 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.Footnote 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,Footnote ¹³² the aggregate numbers and corresponding visualizations may feed into a European discourse focusing on the threat of an impending African exodus towards Europe.Footnote 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.Footnote ¹³⁴ Both documents focus on the protection of personal data, and are aimed at preventing ‘unnecessary and disproportionate interference into privacy’.Footnote 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’.Footnote 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.’Footnote 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.’Footnote 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.Footnote 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,Footnote 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’.Footnote 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)Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ¹⁵⁰ Against this background, the concluding section sets out a number of proposals for reform.

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.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ¹⁴ Migration optimists argue that, in addition to generating increased foreign currency reserves and improved credit ratings for origin countries,Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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 mobilityFootnote ²⁶ – 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’.Footnote 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,Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ³³ IOM was to serve as labour recruiter in order to avoid reliance on private labour recruitersFootnote ³⁴ and also to help build the Guatemalan government’s capacity to independently manage the programme in the future.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ⁴² The IOM-UN Agreement enables IOM to remain independent and ‘non-normative’ in its operations.Footnote 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.Footnote 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’.Footnote 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,Footnote 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.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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).Footnote 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 thinktanksFootnote ⁵⁴ – with the 2030 Agenda for Sustainable Development (SDGs) positing a clear relationship between well-governed migration and sustainable development.Footnote 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,Footnote 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’Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote 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’.Footnote 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.

10.3.1 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.Footnote 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.Footnote ⁸⁷

Social auditing has drawn criticism, however, as a poor substitute for labour inspection and enforcement by government entities.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote 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.Footnote 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.Footnote 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’.Footnote 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.Footnote 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).Footnote 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’.Footnote 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’.Footnote ¹⁰² WEC thus advocates for States to adopt the ILO Convention on Private Employment Agencies (No. 181),Footnote 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.Footnote 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’.Footnote 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’.Footnote 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’Footnote ¹⁰⁷ (Montreal Recommendations), which IRIS recommends States now adopt.Footnote 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’.Footnote 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 PrinciplesFootnote ¹¹⁰ – which frames its guidance in the language of States’ ‘responsibilities’ and cites extensive treaty law in supportFootnote ¹¹¹ – 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’.Footnote 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’.Footnote 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’.Footnote ¹¹⁴ While, as discussed above, a far more robust grievance mechanism than that currently included in the IRIS Certification process is sorely needed,Footnote 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’.Footnote ¹¹⁶

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.Footnote ²³ In many places, it facilitates the return of migrants or carries out the resettlement of refugees to third countries.Footnote 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.Footnote 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.Footnote ²⁶ As stated, IOM is very decentralized,Footnote 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.Footnote ²⁸ Related organization status does not mean IOM is legally part of the United Nations itself,Footnote ²⁹ and, furthermore, IOM had already worked with the UN for decades before the 2016 Agreement.Footnote 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).Footnote ³¹ As such, Articles 1 and 2 of the UN Charter are now expressly endorsed as part of IOM’s operational practice.Footnote 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.Footnote ³³ However, there is no reference to human rights or even ‘protection’ in the IOM Constitution.Footnote 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,Footnote 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’.Footnote ³⁶

IOM’s project-based financing model can implicitly privilege state interests over those of individual migrants.Footnote 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.Footnote ³⁸ By comparison, UNHCR’s 1950 Statute establishes that its mandate is to provide international protection to refugees.Footnote 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.Footnote ⁴⁰ IOM has no such protection mandate for migrants, whom the organization defines very broadly,Footnote 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.Footnote 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.Footnote 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’.Footnote ⁴⁴ In several places, the GCM refers to respecting, protecting and fulfilling human rights,Footnote 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:

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.Footnote ⁴⁶ The GCM also discusses the protection of trafficked persons, something that increasingly pertains in humanitarian crises.Footnote 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.Footnote 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.Footnote ⁴⁹ Nevertheless, that does not necessarily mean that when sitting in the IOM Council,Footnote ⁵⁰ its member states prioritize those United Nations documents over ‘opportunities for orderly migration’ set out in its own Constitution.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ⁵⁶

Thus, while humanitarian agencies traditionally acted independently of the states where they operated, the humanitarian-development dichotomy was always false,Footnote 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,Footnote ⁵⁸ IOM’s Constitution defers more to its member states and the states in which IOM operates than the 1950 UNHCR Statute, for example.Footnote 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.

12.4.1 Explicit Engagement

The IOM Executive Committee first considered IOM policy and practice in respect to IDPs in May 1997.Footnote 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.Footnote 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’,Footnote 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’.Footnote 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’,Footnote ⁵² with the then IOM Emergency and Post-Conflict UnitFootnote ⁵³ tasked with ‘ensuring that IOM project proposals are consistent with the Guiding Principles’.Footnote 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.Footnote ⁵⁵ In 2012, the IOM Council published its Member State-approved Migration Crisis Operational Framework (MCOF).Footnote ⁵⁶ The MCOF ‘provides a reference frame for IOM’s response to the mobility dimensions of crisis situations’.Footnote ⁵⁷ It was ‘developed at the request of IOM Member States, pursuant to their growing interest in the migration consequences of crisis situations’.Footnote 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’.Footnote ⁵⁹

The MCOF is underpinned by ‘the migration crisis approach’.Footnote 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’.Footnote 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’.Footnote ⁶² Within the MCOF, IOM identifies what it calls the ‘[m]ost relevant frameworks and modalities for cooperation’.Footnote ⁶³ The list is extensive, with reference made to, inter alia, the IASC cluster approach and the UNHCR,Footnote ⁶⁴ the 1951 Refugee Convention and its associated 1967 Protocol,Footnote ⁶⁵ and the Hyogo Framework for Action 2005–2015 on disaster risk reduction.Footnote 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.Footnote 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 displacementFootnote ⁶⁸ 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’,Footnote ⁶⁹ and has committed itself ‘to promote and respect the Guiding Principles in its work’.Footnote ⁷⁰

This situation is then repeated in the 2015 IOM Humanitarian Policy – Principles for Humanitarian Action (‘the Principles for Humanitarian Action’).Footnote 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’.Footnote ⁷² They aim to ‘define IOM’s responsibilities vis-à-vis internationally agreed core humanitarian principles and to clarify its role at all levels’.Footnote 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’,Footnote ⁷⁴ and while ‘internal movements’ explicitly feature in the series of ‘operating contexts’ presented,Footnote 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’)Footnote 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’.Footnote 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.Footnote 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’.Footnote ⁷⁹

Lastly, in 2017, IOM published its Framework for Addressing Internal Displacement (‘the 2017 Framework’).Footnote 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’.Footnote 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.Footnote 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’.Footnote ⁸³ Additionally, the 2017 Framework asserts that it ‘consolidates its comprehensive and diverse programming on internal displacement’ under a series of operational objectivesFootnote ⁸⁴ 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’.Footnote 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’.Footnote 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’.Footnote 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’.Footnote 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’Footnote 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.Footnote ⁹⁰ It is also widely acknowledged, including by IOM,Footnote 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’,Footnote ⁹² ‘laying the foundations for’,Footnote ⁹³ ‘allowing’Footnote ⁹⁴ and ‘promoting’Footnote ⁹⁵ durable solutions. While IOM itself does not unequivocally define ‘durable solutions’, it does refer, namely in the PRDS FrameworkFootnote ⁹⁶ and the 2017 Framework,Footnote 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’,Footnote ⁹⁸ these typically appear in the context of securing sustainable return.Footnote ⁹⁹ ‘Local integration’ is in fact explicitly mentioned only once, and this is in respect to refugees.Footnote 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’.Footnote 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’.Footnote 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’.Footnote 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’)Footnote 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’.Footnote ¹⁰⁵ The PRDS Framework instead proposes a ‘resilience-based approach’ aimed towards progressively resolving displacement situations.Footnote ¹⁰⁶ As explained by IOM, ‘[m]obility can be a crucial component of resilience’,Footnote 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’.Footnote ¹⁰⁸ It is argued that the PRDS Framework therefore ‘embraces broader, more inclusive approaches which integrate mobility dimensions’,Footnote ¹⁰⁹ and that as a framework it complements the three durable solutions of local integration, return and resettlement.Footnote 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’,Footnote ¹¹¹ and calling in its PRDS key programmatic principles to ‘[s]upport the freedom of choice of affected persons to identify appropriate solutions…’,Footnote ¹¹² the language of ‘voluntariness’ is noticeably sparse throughout.Footnote 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.Footnote ¹¹⁴ Indeed, the MCOF proclaims IOM’s ‘unique expertise in the transportation of beneficiaries in emergency (evacuation) and post-crisis (resettlement or return) situations’,Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote ¹¹⁹ To realise a ‘free choice’ requires the availability of feasible optionsFootnote ¹²⁰ – 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.Footnote 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’,Footnote 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.Footnote 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.

12.5.1 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.Footnote 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.Footnote ¹²⁵ In fact, it was the worst disaster to hit the Western hemisphere in recorded history.Footnote ¹²⁶ As such it has been widely studied and there are ample reports of IOM’s operations at that time.Footnote 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.Footnote 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.Footnote 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.Footnote ¹³⁰ Moreover, IOM was one of the largest recipients of funding in the entire international community’s response to the earthquake.Footnote 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.

12.5.2 Experiences in Iraq

Forced displacement has been an enduring feature of Iraqi life for many decades.Footnote ¹⁵³ Iraq has experienced several significant waves of displacement, both internal and cross-border.Footnote ¹⁵⁴ These waves can perhaps be best categorised into three ‘epochs’.Footnote 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’,Footnote ¹⁵⁶ utilised to effect ethnic cleansing and ultimately strengthen State control over a disempowered population.Footnote ¹⁵⁷ Post-2003 and the fall of Saddam Hussein, displacements not only continued but expanded to cover the entire Iraqi State,Footnote ¹⁵⁸ driven by intense sectarian fighting and generalised violence.Footnote 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.Footnote 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,Footnote 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,Footnote ¹⁶² within or alongside host communities.Footnote 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.Footnote 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.Footnote 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.Footnote ¹⁶⁶ Third, displacement in Iraq is underpinned and exacerbated by ethnic and sectarian tensions, with the State having become increasingly fragmented along such lines.Footnote 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.Footnote 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.Footnote 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,Footnote 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’.Footnote 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.Footnote ¹⁷² Khedir has similarly argued that the ‘social integration of IDPs is by no means a government policy/priority’,Footnote ¹⁷³ citing the absence of social integration from the mandates of relevant government institutions.Footnote ¹⁷⁴ Khedir identifies this as being in part a consequence of an ‘ominously pervasive’ preference for return among authorities and host communities,Footnote ¹⁷⁵ but also ‘an obvious lack of a policy concept and tradition of social integration in Iraq’.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ¹⁸¹

It is within this complex context that international organizations in Iraq operate. Alongside UNHCR, IOM performs a leading role in addressing internal displacement.Footnote ¹⁸² Since commencing operations in 2003, IOM Iraq has established a presence in all 18 Iraqi governorates.Footnote 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.Footnote ¹⁸⁴ In respect to the latter, IOM’s DTM is recognised as the primary means by which to track displacement movements in Iraq.Footnote 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,Footnote ¹⁸⁶ and to ‘better understand the progress IDPs are making toward durable solutions and the end of displacement among IDPs’.Footnote 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.Footnote ¹⁸⁸ Since 2016, IOM has chaired the Returns Working Group (RWG), which has ‘invested considerably’ in sustaining IDP return levels in Iraq.Footnote 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.Footnote 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.Footnote 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.Footnote 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’.Footnote 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.Footnote 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’.Footnote 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’;Footnote ¹⁹⁶ and the 2020 study, ‘Cities as Home’, which examined conditions and prospects for local integration across several localities in Iraq.Footnote ¹⁹⁷ In 2021, IOM Iraq unequivocally recognised that a durable solution can be achieved through ‘integration in locations of displacement’.Footnote 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’).Footnote 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.Footnote ²⁰⁰ The purpose of the research is to understand how these households progress towards achieving a durable solution to their displacement.Footnote ²⁰¹ It does this by ‘examining the ways in which Iraqis themselves seek durable solutions’,Footnote ²⁰² using data collected through quantitative surveys and interviews with IDPs, host communities, relevant authorities, and others.Footnote ²⁰³ The IOM-GU study ‘relies on [the IASC Framework] as an analytical frame for assessing IDPs’ access to durable solutions in Iraq’.Footnote ²⁰⁴ This is an explicit recognition of the IASC Framework as ‘the principal point of reference for understanding the process of achieving durable solutions’,Footnote ²⁰⁵ and ‘the primary international standard for supporting and assessing durable solutions’.Footnote ²⁰⁶ The study’s findings are presented against each of the eight durable solutions assessment criteria outlined in the IASC Framework.Footnote 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.Footnote 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.

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’.Footnote 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’.Footnote 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.Footnote ³⁷

A relative exception is found in its 2014 Submission to the Working Group on Arbitrary Detention.Footnote 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.Footnote 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’.Footnote 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.Footnote 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,Footnote ⁴² this is rather misleading. Our review identified the first references to ATDs around 2010.Footnote 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.Footnote 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’.Footnote 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 […]’.Footnote ⁴⁶

Over the years, promoting ATDs has come to the fore of IOM’s detention discourse.Footnote 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.Footnote ⁴⁸ ATDs are otherwise discussed as an avenue that states ‘should consider’Footnote ⁴⁹ and which IOM seeks to ‘promote’.Footnote 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’.Footnote 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’.Footnote 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’,Footnote ⁵³ it also acknowledges that AVR can be the only way to end ‘unnecessary and sometimes prolonged’ detention.Footnote 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’.Footnote 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.Footnote 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’,Footnote ⁵⁷ gave a strong endorsement of states’ rights to control their own borders, stating:

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’.Footnote 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:

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.Footnote 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’.Footnote 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.

13.4.1 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.Footnote 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.Footnote 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’.Footnote 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’.Footnote ⁷⁰

As the shipboard asylum processing became unsustainable, the US turned to its military base on Guantanamo Bay as a detention and processing site.Footnote ⁷¹ IOM continued to assist US authorities with asylum interviews and data collection at Guantanamo.Footnote 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.Footnote ⁷³ Serious concerns were expressed that those detained at Guantanamo Bay faced pressure to accept US offers for immediate repatriation.Footnote ⁷⁴ Of the 20,000 Haitians interdicted and transferred to Guantanamo Bay (including hundreds of children), most were eventually repatriated back to Haiti.Footnote ⁷⁵

While UNHCR spoke out against the detention and processing of interdicted Haitians at Guantanamo, IOM remained publicly silent.Footnote 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.Footnote 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’.Footnote ⁷⁸

Establishing accountability for these ‘offshore’ practices has been notoriously difficult, with the US Supreme Court upholding the legality of interdiction at sea,Footnote ⁷⁹ in sharp contrast to the Inter-American human rights system and the dominant interpretation of international human rights and refugee law.Footnote 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.Footnote 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.Footnote 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 ….’.Footnote ⁸³ At the time, neither Nauru nor Papua New Guinea were member states of IOM.Footnote 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.Footnote 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.Footnote 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.Footnote ⁸⁷

Within detention facilities, IOM’s managerial responsibilities included providing ‘security, water, sanitation, power generation, health, and medical services’.Footnote 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’.Footnote ⁸⁹ To fulfil its function of overseeing detention, the organization frequently subcontracted to companies, including private security firms.Footnote 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.Footnote 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.Footnote 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.Footnote ⁹³ For example, in mid-2002, IOM’s medical staff in Nauru reported that thirty unaccompanied children were showing signs of trauma.Footnote 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.Footnote ⁹⁵ He later resigned his post in protest over detention conditions and IOM’s disregard for his clinical professional opinion.Footnote 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’.Footnote 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.Footnote 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’.Footnote 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.Footnote ¹⁰⁰ Their denials included attempting to claim that the practices did not entail detention, a clear distortion of the legal concept.Footnote 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.Footnote 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.Footnote 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).Footnote 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’.Footnote ¹⁰⁵ Several academics have also written about IOM’s integral role in the operation and legitimation of these sites.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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).Footnote 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.Footnote 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.Footnote 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.Footnote ¹¹⁵ As a result, tens of thousands of protection seekers ended up in indefinite detention while awaiting asylum decisions and resettlement options.Footnote ¹¹⁶ Over the years, Indonesia shifted its approach towards ATDs.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ¹²² Within IOM and government-run facilities, asylum seekers were encouraged to take up IOM’s AVR.Footnote 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.Footnote 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.Footnote 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’Footnote ¹²⁶ and involved major works to refurbish and renovate several Indonesian detention centres.Footnote ¹²⁷ IOM’s work supported significant expansion of detention capacity.Footnote ¹²⁸ The second element was to improve detention conditions by developing standard operating procedures and training Indonesian officials.Footnote 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’.Footnote ¹³⁰ The third component was AVR work from detention sites. Overall, reliable reports demonstrated that human rights violations in detention continued.Footnote 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).Footnote 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.Footnote 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.Footnote ¹³⁴ Initially, only those who had been granted refugee status could be released from detention.Footnote 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’.Footnote ¹³⁶ The remaining population lived independently in Indonesian communities.Footnote 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.Footnote 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.Footnote ¹³⁹ Asylum seekers and refugees who violate immigration regulations (e.g. ‘violating curfew’) lose access to community shelters and their services.Footnote ¹⁴⁰ Many asylum seekers and refugees have described their experience as effectively living in ‘an open prison’.Footnote ¹⁴¹ In March 2018, new asylum seekers were barred from admission into IOM’s ‘care’ programme due to a lack of resources.Footnote 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.Footnote ¹⁴³ Although international advocacy played some role in this shift away from detention,Footnote 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.Footnote 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.Footnote 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’.Footnote 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’.Footnote 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.Footnote 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.Footnote 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’.Footnote 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’.Footnote 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)’.Footnote 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’.Footnote 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’.Footnote 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.Footnote 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’.Footnote ¹⁵⁷ It has also set up some of the infrastructure necessary for ‘safe reception’, such as medical, water and sanitation facilities,Footnote ¹⁵⁸ and provides some training to the LCG.Footnote 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.Footnote 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.Footnote ¹⁶¹ Between 2017 and 2020, UNHCR in Libya evacuated around 4,500 refugees.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote ¹⁶⁶ Its psycho-social programmes purportedly help migrants to ‘cope’ with the mental and emotional trauma of confinement.Footnote ¹⁶⁷ These activities, including human rights training for Libyan detention staff, are justified as ‘promoting and protecting migrants’ human rights’.Footnote 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’.Footnote ¹⁶⁹ These activities are framed as ‘enhancing conditions’ to protect human beings.Footnote ¹⁷⁰ IOM on occasion gives the impression that it is making headway on limiting detention through support to ATDs.Footnote 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.Footnote 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).Footnote ¹⁷³ This programme, with funding from the UKFootnote ¹⁷⁴ and EU, has led to the release and ‘return’ of approximately 53,000 so-called ‘stranded migrants’ since 2015.Footnote 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’.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote 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.

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 2Footnote ⁴² and 3 of the Convention,Footnote 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:

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:

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 decided in favour of the applicant on this matter:

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:

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.Footnote 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.Footnote ⁵⁰

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

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

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 ProtocolFootnote ⁵³ 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,Footnote ⁵⁴ the EU Directive,Footnote ⁵⁵ and the Association of Southeast Asian Nations (ASEAN) Trafficking Convention.Footnote 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.Footnote 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’.Footnote 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.Footnote ⁵⁹ The commentary to the Council of Europe Convention notes that abuse of a position of vulnerability means:

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.Footnote 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.Footnote 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.Footnote 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.Footnote 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’.Footnote ⁶⁵ Contract law is different from other areas of law in the sense that it is ‘based on an agreement of the contracting parties’.Footnote 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.Footnote 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 InceFootnote ⁶⁸ 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.Footnote 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.

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.Footnote 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.Footnote 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.Footnote ⁴¹ Broadly speaking, international advocacy groups’ interactions with IOM have been much more limited, fluid and dependent on individual personalities and relationships.Footnote 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.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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:

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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.

15.4.1 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.Footnote 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’.Footnote 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.Footnote 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.Footnote ⁶⁵ Many saw its managerial style and focus on ‘efficiently’ running large projects as undermining its claims to be ‘solving’ migration problems.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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’.Footnote 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.Footnote 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.Footnote 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’?Footnote 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.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ⁸³ This limited recognition of IOM’s agency and authority in global governance can inadvertently shield the organization from demands for accountability.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ⁹⁰ Their partnership involves joint fundraising and aims to produce ‘authoritative recommendations for policies to integrate displacement into broader policy agendas’, amongst other goals.Footnote 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.Footnote 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.Footnote 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.Footnote ⁹⁴