Advancing Accountability: Displacement and Transitional Justice

Pursuing justice for the human rights violations suffered by displaced persons may seem, at first glance, like a highly abstract – and potentially irrelevant – proposition. Around the world, tens of millions of people are uprooted by conflict and systematic human rights abuses. Any justice that can be done for the violations that force people from their homes, such as bombings, torture and rape, is inevitably inadequate. There is no “turning back the clock” on these crimes. At the same time, whether they are struggling to find shelter, establish new lives, or make their way back home, refugees and internally displaced persons (IDPs) face a host of pressing economic, social and security problems. Should obtaining an inescapably imperfect measure of accountability for displacement register as a serious concern amidst the innumerable challenges facing post-conflict communities?

Increasingly, in countries from Guatemala and Liberia to Iraq and East Timor, transitional justice processes are used to acknowledge and attempt to uphold responsibility for massive human rights violations. Transitional justice mechanisms include criminal trials, truth commissions, apologies, compensation, property restitution, and vetting processes. The abuses transitional justice seeks to redress often give rise to large-scale displacement, which can represent a violation in its own right. However, historically transitional justice mechanisms have often overlooked displacement as a human rights concern, and have excluded refugees and IDPs despite their important stakes in these processes. At the same time, researchers have devoted little attention to the intersection of these fields.

The potential importance of transitional justice for displaced persons came home to me a few years ago when I visited the Fundación de Antropología Forense de Guatemala (FAFG), an organization dedicated to investigating the murder of civilians during Guatemala’s civil war. Exhumations of massacre victims, the completion of forensic analyses, and dignified reburials are an essential part of the still incomplete transitional justice process in Guatemala, providing evidence for trials, and ensuring these deaths become part of the historical record. When I visited FAFG, investigators were analyzing the remains of two girls, sisters shot in the head by government-backed forces during an invasion of their village – part of the state’s “scorched earth” campaign of the early 1980s. The sisters were so young that their adult teeth had not yet come in, the force of the bullets that killed them was so strong that it snapped their jaws. Their parents survived the massacre, hastily buried their daughters, and fled. Years later, they returned and decided to have their daughters exhumed so that their murders could be formally investigated and recorded – two deaths amongst the 200,000 killed during the war. As a researcher concerned with displacement, I was moved by the fact that despite the many challenges these parents likely faced in returning to their community and rebuilding their lives, they prioritized a powerful act of truth-telling.

This experience has stayed with me as I have been working on a collaborative study led by the Brookings-LSE Project on Internal Displacement and the International Center for Transitional Justice on the links between displacement and transitional justice. This initiative brought together scholars and practitioners from five continents to explore the often limited but nonetheless significant ways in which transitional justice measures have been used to respond to displacement in countries including Colombia, Peru, Kosovo, Turkey, and the Democratic Republic of Congo, drawing out insights from these experiences on the opportunities and risks inherent in attempting to integrate displacement into transitional justice mechanisms. Experiences in these countries demonstrate the diverse and often innovative ways in which refugees and IDPs have managed to participate in transitional justice processes, despite considerable barriers. For example, refugees and IDPs have served as witnesses in criminal trials, and have given and collected testimony for truth commissions. They have been eager participants in property restitution processes, and have mobilized to call for compensation. They have returned to their former homes to commemorate massacres and witness exhumations. They have advocated for the establishment of truth commissions, and helped to orchestrate “remote” hearings so that refugees and others in the diaspora can contribute to the development of an accurate record of human rights abuses. And, at the grassroots level, they have drawn on customary practices to resolve land claims and other grievances.

The results of this multi-year project include a series of 14 case studies which informed Transitional Justice and Displacement, a collection that examines how transitional justice processes can respond to forced migration as a human rights issue, involve refugees and IDPs, and support solutions to their displacement. In addition, ICTJ and Brookings have published “Transitional Justice and Displacement: Challenges and Recommendations,” a report that offers guidance for policymakers and practitioners on maximizing the complementarities between transitional justice and responses to displacement.

This research underlines the complexity of the intersection of displacement and transitional justice. Poorly conceived and inappropriately implemented transitional justice processes may unrealistically inflate expectations, create competition between victim groups, and generate new grievances, particularly if transitional justice processes include material benefits such as land or financial compensation. At their best, however, transitional justice can help to uphold the rights and wellbeing of the displaced. For example, these processes can contribute by acknowledging their experiences of abuse and hardship, advancing accountability from leaders responsible for their uprooting, and providing them with material resources – whether financial compensation or, more commonly, property restitution – that may support the displaced as they seek to (re)integrate into their communities. In general, therefore, when displacement is connected to massive human rights violations, the concerns of refugees and IDPs should be appropriately integrated into transitional justice strategies, and displaced persons should have the opportunity to participate in the design and implementation of transitional justice mechanisms. Equally, transitional justice should be incorporated into responses to forced migration, particularly with a view to supporting durable solutions for refugees and IDPs and, ideally, preventing future displacement.