On the Record

Internal Displacement, Transitional Justice, and Peacebuilding: Lessons Learned

Elizabeth Ferris

I am delighted to be here and am looking forward to learning from you about the relationship between internal displacement in Colombia and peacebuilding. Colombia is, of course, a unique case with a particular constellation of political, economic and social factors. For example, in comparison with many other countries, displacement in Colombia has occurred over a long period of time and the scale of displacement is quite large. But every country is unique and the relationship between displacement and peacebuilding is an issue in all countries where people have been displaced by conflict.

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In order to provide a context for our discussions, I have been asked to briefly review some of the lessons we have learned in our research on displacement, peacebuilding and transitional justice. In particular, I will try to bring experiences from other parts of the world on the central issues to be discussed at this workshop:

  • Durable solutions, return and relocation
  • Land and territory
  • Transitional justice and internal displacement
  • Participation and IDP organizations

The fifth theme – the rights of internally displaced persons – is not treated as a separate issue in this presentation as it is the basis for all of the others. As citizens (or habitual residents), IDPs have all of the basic rights of citizens of their country. Based on existing international human rights instruments, the Guiding Principles on Internal Displacement enumerate the rights which are particularly relevant to those who are displaced.

Internal Displacement and Peacebuilding

Last year the Brookings-Bern Project on Internal Displacement conducted research into the relationship between internal displacement, peace processes, peace agreements and peace building by commissioning case studies on Colombia, Georgia, Sri Lanka and Sudan. In addition, we reviewed additional peace processes and agreements in Bosnia, Burundi, Cambodia, El Salvador, Guatemala, Liberia, Macedonia, Mali, Mozambique, Nepal, Rwanda, and Sierra Leone. This was supplemented by mission reports of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons (RSG) and his predecessor and further research into key areas of property restitution and compensation, and other types of reparation programs, including Truth and Reconciliation Commissions.[1]

Our study found that there is a close relationship between finding solutions for displaced persons and peacebuilding and noted that peacebuilding itself is a complex process involving: re-establishing security and law and order; reconstruction and economic rehabilitation; reconciliation and social rehabilitation; and political transition to creating more accountable governance structures and institutions. If IDP concerns in these areas are not taken seriously, it may jeopardize the sustainability of peace in the country. “If IDPs are not able to recover their land or property or otherwise find solutions allowing them to live decent lives and when they feel that they have suffered injustice, reconciliation becomes more difficult. If durable solutions are not found for IDPs, their potential for contributing to economic reconstruction and rehabilitation is limited and poverty reduction becomes more difficult.”[2] On the other hand, resolution of such issues can be a positive force for political reconciliation, social development and economic stability.

There has been a tendency to view conflict, peace agreements and peacebuilding as a linear process. In other words, conflict is resolved through a negotiated peace agreement which is followed by a process of consolidating the peace. And yet the reality is more complicated – not only in Colombia, but in many countries. Conflicts may persist in some parts of the country, while in other parts, peacebuilding is well underway. Peacebuilding may take place during a conflict; for example, in Angola refugees were trained in human rights in the hope that they would contribute to the restoration of democratic institutions after the conflict ended. But the refugees were able to use their skills to contribute to the process of negotiating a peace agreement.

Durable solutions

Let me remind you of what the Guiding Principles on Internal Displacement say about solutions to internal displacement: “Competent authorities have the primary duty and responsibility of the national authorities to establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country. Such authorities shall endeavor to facilitate the reintegration of returned or resettled internally displaced persons. Special efforts should be made to ensure the full participation of internally displaced persons in the planning and management of their return or resettlement and reintegration.”[3]

National authorities have the primary duty and responsibility to create conditions for IDPs to find solutions; the solutions available to IDPs are: return to their community of origin, integration in the place to which they have been displaced, or resettlement in another part of the country. It is important to stress that IDPs have the right to decide on which durable solution they want and a decision, for example, to integrate in the community to which they have been displaced does not preclude their right to return to their community of origin if conditions warrant.[4] Moreover, in order for a decision on solutions to be voluntary, IDPs need to have a genuine choice between alternatives. For example, in Iraq today, there are reports of internally displaced persons returning to their communities not because they think it is safe and the best possible solution, but because their resources are running out and they perceive that they can no longer survive where they are.[5] In these circumstances, the decision to return is not a voluntary one.

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Most national authorities expect internally displaced persons to return to their homes when conditions permit, but there are almost always cases where not everyone wishes to return. Under the Guiding Principles (principle 15), IDPs have the right to seek safety elsewhere.

With respect to return – the option desired by most governments and probably most IDPs as well – it is the responsibility of governments to create conditions conducive to voluntary return in safety and dignity. In particular, they are responsible for:

  • Establishing security and rule of law
  • Developing means for resolving conflicts over property

Without security in their place of origin, IDPs cannot return. If they choose not to return, they still need security in their area of settlement – whether it is where they are presently living or in another part of the country. Over and over again, in situations as diverse as Iraq, Sierra Leone, and Nepal the principal impediment to finding solutions for IDPs is security.

There are many cases where the presence of armed groups can create a serious obstacle to return, particularly when the armed groups were responsible for the displacement. In other contexts, the RSG has noted that in these cases, it is necessary to either disarm these groups, to integrate them into the post-conflict armed forces, or relocate them to other parts of the country to give returnees a sense of security.[6] Where impunity prevails, whether because of lack of political will to hold those responsible for crimes accountable or because of understaffing of law enforcement personnel, durable solutions for displaced persons are not possible and such impunity may create new tensions, endangering a fragile peace as in Georgia and Bosnia and Herzegovina.[7]

Our study also found that often the safety of returning IDPs can be threatened by criminal elements among the local population or by returning combatants who have been demobilized but have not successfully reintegrated into civilian life.[8]

Land and Property disputes

Author

The Guiding Principles specify that “no one shall be arbitrarily deprived of property and possessions” and that “property left behind should be protected against destruction and arbitrary and illegal appropriation, occupation or use.”[9] Principle 29 goes on to state that: “competent authorities have the duty and responsibility to assist returned and/or resettled internally displaced persons to recover, to the extent possible, their property and possessions which they left behind or were dispossessed of upon their displacement. When recovery of such property and possessions is not possible, competent authorities shall provide or assist these persons in obtaining appropriate compensation or another form of just reparation.”

Unfortunately land and property disputes are common in post-conflict situations and make it more difficult for IDPs and returning refugees to find solutions. When their homes are occupied by others, mechanisms are needed to resolve property disputes; otherwise, this can be a source of new or renewed conflict. Governments are responsible for developing such legal mechanisms.

Property restitution

The literature on property restitution indicates that there are no completely satisfactory models, but there is a consensus on successful steps to be taken.[10] These include:

1. Establish a legal basis for restitution claims. Whether through peace agreements or national laws, a legal basis for property restitution for displaced persons should be put in place. These provisions should complement rather than contradict or entirely bypass the broader domestic legal framework.[11] They should also provide enforcement mechanisms.

  • In Bosnia, the 1995 Dayton Peace Accords included the rights to return and property restitution in Annex 7: “All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them.”[12]
  • Similarly the Georgia agreement states that “Returnees shall, upon return, get back movable and immovable properties they left behind and should be helped to do so, or to receive whenever possible and appropriate compensation for their lost properties if return of property appears not feasible.”[13]
  • In Tajikistan, the 1997 General Agreement on the Establishment of Peace and National Reconciliation in Tajikistan and the related Protocol on Refugees codified the property restitution rights of displaced persons.[14]

In addition, peace agreements in Mozambique, Guatemala and the Great Lakes Pact all provide for the establishment of legal mechanisms to adjudicate property claims. The Guatemalan peace agreement in particular has a provision to eliminate discrimination against women in access to land and housing.[15]

2. Repeal laws that are contrary to internationally recognized housing and property restitution rights. In the Czech Republic, Bosnia, Kosovo, and South Africa, property laws that were discriminatory or otherwise not compliant with international standards were repealed.[16] These repeals provide room for the development of new property restitution laws based on international standards and ensure that old property laws do not conflict the newly created laws.

3. Determine the geographic and temporal scope. Since these mechanisms are set up in response to conflicts or natural disasters that caused displacement and dispossession, clear jurisdictional rules regarding the time period and geographic area for which claims can be filed must be put in place to prevent the mechanisms from being overwhelmed with unrelated claims.

  • In Bosnia, property restitution laws covered the entire period in which displacement could have taken place, meaning not only during the formal timeframe of the war, but also the period of documented civil unrest prior to the war.
  • In Turkey, the Compensation Law limits claims both temporally and geographically. The law addresses violations that occurred in the southeastern provinces, where the conflict in the early 1990s led to large-scale displacement.

4. Create a special administrative restitution mechanism. There seems to be agreement that judicial mechanisms are too cumbersome to address housing and property claims in a timely manner and that dedicated administrative mechanisms are more effective at mass property claims processing. Administrative mechanisms tend to process claims faster; have more procedural flexibility; and decrease the evidentiary burdens for the claimants. Context and capacity should determine whether these administrative mechanisms need to be constructed at the national or local levels.

  • In South Africa, a 1994 law provided for remedies for tens of thousands of non-whites whose land had been confiscated during the Apartheid era. The law created a special Land Claims Court, served by an administrative commission, to rule on claims. When the Claims Court proved too slow at processing claims, the bulk of remaining claims were processed by the administrative central and regional Land Claims Commissions. The Commissions were able to increase the pace of claims processing.
  • In Bosnia, the Dayton Peace Accords created a quasi-international body, the Commission for Real Property Claims (CRPC) to resolve restitution and compensation claims. But the CRPC lacked the local investigative capacity necessary to address the over 200,000 claims it received. As a result, the restitution process was decentralized to ad hoc local administrative bodies monitored by international actors.
  • In Kosovo, the Housing and Property Directorate (HPD) and the Housing and Property Claims Commission (HPCC) had exclusive jurisdiction for property claims. Ad hoc and run by international actors, the HPD and the HPCC applied the restitution and compensation regulations that were set by the UN Special Representative of the Secretary General (SRSG) in Kosovo.[17]

5. Determine who can apply for restitution. Legal restitution frameworks should specify who can lay claim to property in addition to formal property owners. South Africa has set important benchmarks in this area by extending the right to lay claim to distant legal heirs and enabling tribes to submit collective land claims.

6. Create safeguards to ensure that claims processes are equitable. States should undertake public information campaigns to ensure that all possible parties to claims processes are aware of their rights and the processes available to compensate them for the violation of those rights. Some examples of these safeguards are to:

  • Require adjudicators to establish relevant restitution facts ex officio.
  • Require mandatory referral of misaddressed claims.
  • Extend restitution programs to cover both violations of property rights and housing rights.
  • Vet the residential situations of public officials.
  • Provide information to the public about claims procedures and progress.
  • Provide legal aid to claimants.

7. Fill gaps by relying on ordinary law. Instead of creating special restitution regulations for each possible issue that may arise during restitution proceedings, Bosnia set a provision stating that all issues unregulated by the special procedures were to be handled in accordance with the ordinary rules of administrative procedure.

Property Compensation

The Pinheiro Principles state that compensation should only be provided when restitution “is not factually possible or when the injured party knowingly and voluntarily accepts compensation in lie of restitution, or when the terms of a negotiated peace settlement provide for a combination of restitution and compensation.”[18] In practice, restitution measures have been used more frequently than other remedies such as compensation or alternate land provisions.[19] This said, several countries and the ICC have implemented compensation mechanisms.

  1. Kuwait: The UN Compensation Commission created several individual claim categories. Category “C” claims are individual claims for damages up to US$100,000 each. Category “C” claims can be made for twenty-one different types of losses, including those relating to departure from Kuwait or Iraq; personal injury; mental pain and anguish; loss of personal property; loss of bank accounts, stocks and other securities; loss of income; loss of real property; and individual business losses. The Commission received approximately 420,000 category “C” claims submitted by eighty-five Governments and eight offices of three international organizations, seeking a total of approximately US$9 billion in compensation. Category “C” claims are given priority in both processing and payment.[20]
  2. Turkey: The Turkish Compensation Law of 2004 provides for either monetary or in-kind compensation for the property losses. Compensation is provided for three types of damage: (i) loss of immoveable and moveable properties, animals, trees and agricultural products; (ii) physical injuries, disabilities and death; (iii) access to property which has been restricted or hindered due to measures taken in the framework of the ‘fight against terrorism’.
  3. Lebanon: Lebanon established the High Relief Commission (HRC) to compensate property owners for damages resulting from displacement during the July/August 2006 conflict with Israel. The process starts when structural damage assessments are provided to the HRC. Compensation checks for the amount appropriate for the damage level are then provided by HRC to individual beneficiaries and then distributed among villages.[21]
  4. Northern Cyprus: The Immovable Property Commission can provide monetary compensation, restitution, or property exchange. Applicants who are paid compensation lost their property rights in return. As of December 2007, the Commission has provided monetary compensation to 18 applicants; in two cases Greek Cypriots have agreed to exchange Northern Cypriot property with southern Cypriot property of comparable value; and three cases provided restitution (although it is unclear whether the Greek Cypriots will be able to return).
  5. Peru: In its August 2003 final report, the Truth and Reconciliation Commission (Comisión de la Verdad y Reconciliación, CVR) recommended compensation for IDPs who have lost their land. However, the Ombudsman’s Office noted in early 2007 that only 3,000 of over 150,000 cases have been presented to the compensation council (High-Level Mulitisectoral Commission).[22]
  6. ICC: The Rome Statute of the International Criminal Court established that the Court “may order reparations, to individual victims or as a collective award, and it may ask the awards to be implemented through the Trust Fund for Victims. These reparation awards to victims may be based on applications made directly by victims or on the Court’s own initiative.”[23] The Statute also provides measures for victims to apply to the Trust Fund during an ICC prosecution as well as before or in the absence of a prosecution as long as the crimes are under the Court’s jurisdiction.

The international community can be supportive by offering technical expertise, funding and support for such a process, as the Organization for Security and Cooperation in Europe (OSCE) did in Bosnia and as the International Organization for Migration (IOM) has done in a number of countries. Civil society groups, particularly legal aid organizations and NGOs can provide support by assisting individual IDPs with the claims process. For example, the Southern Sudan Law Society provides advice and assistance to returning IDPs in support of their efforts to recover their land and property and the Norwegian Refugee Council supports, Information Counseling and Legal Assistance (ICLA) offices which are specialized in legal advice. Nevertheless it is governments which are responsible for establishing such mechanisms as instruments of law while civil society organizations can support the process.

Transitional Justice

According to the International Center for Transitional Justice (ICTJ), transitional justice is a response to systematic or widespread violations of human rights which seeks recognition for the victims and the promotion of possibilities for peace, reconciliation and democracy.[24] Governments have implemented a number of initiatives to bring about transitional justice, including: criminal prosecutions of those responsible for human rights violations; truth commissions to investigate and report on key periods of recent past abuse; reparations programs which may include both material and symbolic benefits to the victims; security system reform; and memorialization efforts. The ICTJ goes on to note the interrelatedness of these measures: “without any truth-telling or reparation efforts, for example, punishing a small number of perpetrators can be viewed as a form of political revenge. Truth-telling, in isolation from efforts to punish abusers and to make institutional reforms, can be viewed as nothing more than words. Reparations that are not linked to prosecutions or truth-telling may be perceived as ‘blood money’ – an attempt to buy the silence or acquiescence of victims.”[25]

With respect to internal displacement, there are few reparations programs that have recognized the need to provide compensation to IDPs for pain and suffering.

  1. Peru: The reparations program proposed by the Peruvian Truth and Reconciliation Commission recommended the development of symbolic reparations and compensation programs providing for the economic support, education, and health of the victims of forced displacement. As noted above, these recommendations have not systematically realized. Some analysts now fear that general poverty eradication programs and development projects may be presented to IDPs as reparations.[26]
  2. Turkey: The European Court of Human Rights has provided compensation to displaced persons for pain and suffering in several cases between 2001 and 2005. The Compensation Law, however, precludes compensation for pain and suffering.[27]
  3. Kuwait: Category “A” is another of the UN Compensation Commission’s individual claims categories. Category “A” claims are those submitted by individuals who had to depart from Kuwait or Iraq between Iraq’s invasion of Kuwait on 2 August 1990 and the cease-fire in March 1991. Compensation for successful claims in this category was set by the Governing Council at the fixed sum of US$2,500 for individual claimants and US$5,000 for families. The Commission received approximately 920,000 category “A” claims.[28]

Addressing Displacement in Truth and Reconciliation Commissions

Only a few of the many Truth and Reconciliation Commissions (TRCs) have addressed reparations for displacement.

  1. Guatemala: The Guatemalan Commission for Historical Clarification (Comisión de Esclarecimiento Historico (CEH)) was criticized as a structurally weak body, but it was perhaps one of the more successful TRCs in terms of integrating the perspectives of displaced persons. “CEH investigators hiked into remote areas of the country to interview thousands of civilians who were displaced by the war. Although the CEH was unable to interview all those who wished to give testimony, many of the formerly displaced persons who testified indicated that they found the experience to be an affirming one. The Commission concluded that the murder and forced displacement of thousands of Mayan civilians during the Guatemalan civil war was genocide, and deemed the Guatemalan state and its paramilitaries responsible for 93 percent of the atrocities committed during the war.”[29]
  1. East Timor: As part of its work, the Commission for Reception, Truth and Reconciliation (CAVR) in East Timor held a hearing on forced displacement and famine in July 2003. In addition to several experts, approximately 10 victims spoke at the hearing about their personal experiences during the conflict. CAVR personnel also contacted displaced persons and provided them with information about conditions in East Timor, with the aim of encouraging an orderly return to their homeland.[30] While the CAVR final report does discuss emergency reparations for the victims of human rights violations, the listing of reparations beneficiaries does not specifically include displaced persons.[31]
  1. Peru: The Peruvian Truth and Reconciliation Commission did address displacement and recommended giving symbolic reparations as well as various services, including education and health for the victims of forced displacement. Few of the Commission’s compensation recommendations have been fully implemented.[32]
  1. Liberia: The current Liberian Truth and Reconciliation Commission recognizes the vast internal and external displacement caused by the conflict in the 1980s and 1990s in the preamble of its mandate. Commission hearings and discussions are still underway.

Participation of IDPs and IDP organizations

Like all citizens, IDPs have a right to participate in the political processes of their countries, including to organize associations and to participate in electoral processes. For those displaced by conflict, they also have an interest in participating in peace processes to resolve the conflict and to ensure that solutions to their displacement are implemented. Moreover, governments and humanitarian agencies alike are becoming increasingly aware of the need to consult with IDPs, to involve them in program planning to ensure that their needs are addressed.[33]

Participation in political processes

The process of peacebuilding requires the establishment of a functioning, legitimate government; in many post-conflict situations, this includes a referendum on a new constitution, elections and activities to ensure a free and open political environment. In post-conflict situations, political participation can effectively contribute to peace, reconstruction, and long-term development. As a 2007 report from our project states: protecting the civil and political rights of displaced people – the right to vote, to freedom of assembly and association, and of expression – allows displaced persons to play an active role in shaping their own future and that of their nation.”[34] In fact, IDP participation in political processes is often much lower than that of the non-displaced population. The Organization for Security and Cooperation in Europe (OSCE) has identified six specific obstacles to IDP enfranchisement: lack of documentation; discriminatory practices; obsolete and restrictive residence requirements; inadequate voting arrangements; lack of timely, adequate and clear information; and insecurity and acts of intimidation.”[35]

The Guiding Principles assert that IDPs have “the right to associate freely and participate equally in community affairs and the right to vote and to participate in governmental and public affairs.”[36] States are obliged to “take effective measures to ensure that all persons entitled to vote are able to exercise that right.”[37] This includes the obligation to issue or replace documentation[38] (such as passports, identification cards or birth certificates) necessary for voter registration, without imposing unreasonable conditions as for example the return to one’s home or place of habitual residence.[39] Such measures may also include arrangements for absentee-voting.[40] Thus, for example, in Iraq, IDPs may indicate whether they wish to vote in their communities of origin or in the communities where they are presently residing.

Freedom of expression, assembly and association are necessary pre-conditions to effectively make use of one’s political rights. States are therefore obliged to take positive measures to overcome difficulties, such as obstacles to the freedom of movement for IDPs living in camps,[41] which prevent persons from exercising their rights effectively.[42]

Although th

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