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Op-Ed

Doing Justice for Refugees and IDPs? Confronting Displacement Through Transitional Justice

Megan Bradley and Roger Duthie

Serious human rights violations are very often an integral part of displacement crises. Certain violations, such as mass killings, arbitrary arrests, torture, and rape, often cause displacement, while others, such as the destruction of homes and property, can be aimed at undercutting the possibility to return home. Forcible displacement is frequently a deliberate strategy used by parties to a conflict and can in itself constitute a war crime or a crime against humanity. In addition, displacement can leave its victims vulnerable to other abuses, without the protection provided by their homes, livelihoods, communities, and governance structures.

Transitional justice is generally understood to be a response to the legacies of massive and serious human rights violations, one that tries to provide redress for victims and accountability for perpetrators through a set of measures including criminal prosecution, truth-telling, reparation, and institutional reform. Given the links between rights violations and displacement, transitional justice measures certainly have good reasons to address the issue of displacement. And yet, for the most part, displacement has not been the focus of a lot of transitional justice practice and literature.

In 2009, the International Center for Transitional Justice (ICTJ) and the Brookings-LSE Project on Internal Displacement began a collaborative research project to examine the role that transitional justice could play as part of the response to displacement. Specifically, we looked at the capacity of transitional justice measures to address displacement, to respond to the justice claims of internally displaced persons and refugees, and to support durable solutions. Importantly, we also looked at the conceptual links between transitional justice measures and the activities of the humanitarian, development, and peacebuilding actors that generally work more directly on displacement.

The project’s final products include a report that highlights our conclusions and recommendations; an edited volume containing the project’s thematic studies; and 14 case studies on country experiences from Central Africa, Colombia, Israel-Palestine, Kosovo, Liberia, Peru, Timor-Leste, Turkey, and the former Yugoslavia. These are all available to download through the ICTJ and Brookings-LSE Project websites. ICTJ’s website also has an interactive map to highlight the research though photographs and visual data.

What were some of our most important findings? To start with, a number of recent reports, resolutions, and guidelines have acknowledged the need for societies struggling to resolve displacement crises to respond to the justice concerns of IDPs and refugees. These include the 2004 and 2011 versions of the Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, the Inter-Agency Standing Committee’s 2010 Framework on Durable Solutions for Internally Displaced Persons, the 2009 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, and the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons.

Furthermore, while transitional justice measures have not traditionally engaged in depth with the concerns of refugees and IDPs, they have in some places addressed displacement. Restitution of housing, land, and property, for example, is the justice measure probably most directly connected to displacement, and restitution programs have been implemented in countries such as Bosnia and Herzegovina, Timor, Kosovo, and Iraq.

Reparations programs can provide benefits for abuses that led to displacement, for harms suffered while displaced, or for displacement itself, but while programs in Guatemala, Peru, and Colombia consider displaced persons eligible to receive benefits, they are yet to receive any for the violation of displacement itself. Truth commissions, as in Liberia, Sierra Leone, Timor-Leste, and Guatemala, are increasingly recognizing and investigating displacement, with some holding sessions making recommendations on the issue. And an international legal framework now exists to criminally prosecute arbitrary displacement when it qualifies as a war crime or crime against humanity, and cases at the ICC, the ICTY, and in Colombia have included charges of forcible displacement.

We also found that responding to displacement with transitional justice raises a particular set of challenges. For example, given the scope and complexity of large-scale displacement, transitional justice measures have a limited capacity to deal directly with the problem. This is particularly the case with measures that seek to provide redress directly to victims, because the large numbers of displaced people present significant resource and institutional challenges. Criminal justice efforts may also be constrained, both because, with limited resources, prosecutors often prioritize more traditional crimes and may be hesitant to add to the complexity of cases by including displacement crimes, but also because international jurisprudence on forcible displacement as a crime is less developed than it is for other violations.

Displaced or formerly displaced persons also face significant obstacles to participating in or accessing transitional justice programs: information might not be available; displaced persons often lack necessary identity documents; poverty, marginalization, and physical inaccessibility can make it difficult to travel and engage; and material and logistical challenges and fear of reprisals can prevent mobilization. Finally, transitional justice and other actors may not share the same goals, approaches, or priorities. Humanitarian actors, for instance, have a different mandate and may broadly support efforts to hold perpetrators accountable but find that actively supporting justice efforts results increased levels of physical risk in the field, and restricted access to needy populations.

Authors

S

Roger Duthie

Senior Associate, Research Unit - International Center for Transitional Justice

However, our work suggests ways in which different transitional justice measures can be designed to try to overcome some of these challenges. Given the huge numbers of people that can be affected by displacement, administrative processes are likely more appropriate than judicial ones for reparations and restitution programs, as they are faster and more accessible, cost effective, and flexible in terms of evidentiary standards. Given resource constraints, reparations programs can be crafted in response to assessments of the needs and priorities of displaced populations: often the context will be one of poverty, so benefits can be crafted to help reduce economic vulnerability, and can include assistance for education and mental health, which are often among the needs of displaced. Collective and symbolic reparations may be particularly appropriate in displacement contexts. For criminal justice, specific units and investigation methodologies can be set up at the national level for crimes of displacement, while demographic and quantitative analysis can be used to portray the scope and patterns of displacement.

If transitional justice measures do respond to displacement, they need to engage with IDPs and refugees in meaningful ways, including through outreach and participation. Participation will likely be affected by the level of organization and mobilization of civil society groups representing the displaced, but the participation of displaced populations can be supported by making material available in different languages, holding events in camps and in diaspora communities, sending investigators/officials to meet displaced groups, and using media and technology to disseminate information to dispersed groups and across borders.

Incorporating gender perspectives is particularly important because gender affects the way people experience displacement; men and women suffer different abuses and face different obstacles in engaging with transitional justice and humanitarian processes. Sexual and gender-based violations often are factors in causing displacement, and these crimes are common while people are displaced. While sexual and gender-based violence needs to be addressed through transitional justice measures, it is important that efforts to respond to gender-based injustice not focus solely on this, as displaced women have a wide range of concerns regarding the economic and social repercussions of displacement and its effects on family life.

Ultimately, we found, transitional justice measures are likely to be most effective in addressing displacement if they form part of a broader but coherent overall response to the problem. This can involve both taking steps to minimize potential tensions with other actors and pursuing opportunities for cooperation and coordination. In a number of cases, humanitarian and other actors that work on displacement have been involved in justice measures—for example, UNHCR with truth commissions, IOM with reparations, NRC with restitution—but their capacity to do so can certainly be strengthened. Coherence also depends, however, on the extent to which justice measures are implemented in parallel with a broader set of structural reforms—including land reform and institutional reform and capacity building—that address the root causes of displacement.

One of the more important long-term contributions that transitional justice can make to resolving displacement, we believe, is in facilitating the integration or reintegration of displaced persons into communities and societies. Reintegration is a critical aspect of all three durable solutions, but it may be something that is significantly hindered by the legacies of past abuses, which can impact both individuals and the communities they reintegrate into. Yet the actors working on displacement do not generally focus on dealing directly with past abuses.

Criminal justice and justice-sensitive SSR, then, may facilitate reintegration by improving the security of formerly displaced persons—through removing known perpetrators from security institutions and local communities—and by making reintegration more durable by helping to prevent the recurrence of the abuses that led to displacement—through the dismantling of criminal networks and structures. Reparations and restitution may facilitate economic reintegration and the rebuilding of livelihoods, increasing access to shelter and land, supporting the construction of homes and businesses, and providing mental health or education assistance.

Truth-telling may contribute to social reintegration by reducing tensions between those who remained home, those who were displaced, and host communities—all groups who suffer in different ways during conflict, but not in ways that are necessarily mutually understood. The goals of transitional justice—trust, recognition, rule of law—may facilitate political reintegration generally, but they also may be particularly relevant for displaced persons whose relationship with the state will have been inherently damaged. More specifically, transitional justice processes may also catalyze civil society organizations representing displaced persons’ interests.

Overall, our hope is that this research—the product of extensive collaboration between researchers and practitioners on all five continents—is the beginning of a longer-term conversation on the promotion of accountability for displacement and the crimes at its root. This is a conversation that needs to engage a wide range of actors, including governments, international organizations, NGOs, and displaced persons themselves. Ultimately, of course, its goal must be to move from discussion and debate to improved practice.

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