Types of reparations and mechanisms

Housing and property restitution

Housing and property restitution is typically the form of redress most relevant to forced migrants, and particularly returnees. While they are displaced, many refugees and IDPs' homes are taken over by 'secondary occupants', who may themselves be displaced. Restoring displaced persons' access to their homes and land is essential to enabling reintegration and rebuilding livelihoods.

Developed by the UN Special Rapporteur on Housing and Property Restitution, the Draft Principles on Housing and Property Restitution for Refugees and Internally Displaced Persons serve as a valuable new tool to guide the restitution process. The Principles support the now widely-accepted view that the right to return entails return not only to the country of origin, but also original homes. They draw on experiences in providing restitution in places such as Kosovo, Tajikistan, Guatemala and Bosnia, where the first comprehensive effort to provide restitution to displaced persons took place under the auspices of the Dayton Agreement. Extensive analyses of the property restitution process in Bosnia have been published in recent years, principally by legal scholars and the practitioners involved in the process. This literature analyses the laws underlying the restitution process, the institutional arrangements used to carry out the restitution process, the obstacles to implementing the restitution process, and the connections (or lack thereof) between restitution and sustainable minority returns.

An innovative World Bank-sponsored project is examining how land registration and restitution may be used to enable the return of Colombian IDPs, and deter the displacement of at-risk communities. Other key issues for researchers and practitioners concerned with restitution and forced migration include post-restitution support programmes, the gendered impact of restitution, and the resolution of collective and informal claims.

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Compensations and claims commissions

Compensation may be provided in lieu of housing and property restitution, and may also be extended to the displaced and other victims of human rights violations as a form of redress for property damages, lost income, and for physical and psychological suffering. However, most of the countries grappling with forced migration problems simply cannot afford to provide financial compensation to the displaced. In some cases, international donors may provide financial support for compensation, but in practice compensation is a rare form of redress for the displaced. When compensation is made available, specialised, ad hoc claims commissions are an important mechanism to evaluate claims and distribute funds to successful claimants. The United Nations Compensation Commission (UNCC) was a key precedent-setting claims commission established to provide redress to individuals, corporations and states harmed as a result of Iraq's 1991 invasion of Kuwait. Using funds from Iraq's oil revenues, the Commission compensated millions of people forced to flee Iraq and Kuwait during the Gulf War. The UNCC has been examined in several legal and political studies that analyse the structure and legal principles underpinning the Commission, and the lessons learned from the Commission that may inform other compensation processes.

Other scholarship on compensation for human rights violations has addressed the moral and ethical questions raised by the provision of compensation, such as whether claims for redress grow stronger or weaker as time passes, and how the responsibility of compensating the victims of state-sponsored crimes should be distributed. A diverse group of Palestinian, Israeli and international researchers have explored the question of how compensation may support the resolution of the Palestinians' displacement, and the peaceful resolution of the Palestinian-Israeli conflict. Major issues include the assessment of the Palestinians' claims, the calculation of interest, international support for the provision of compensation, and different modalities for compensation.

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Courts, tribunals, and other types of reparations

In addition to restitution and compensation, reparations of 'satisfaction' may also be particularly relevant to forced migrants. Satisfaction addresses non-material injuries through means such as official apologies, assurances of non-repetition of the offence, trials and truth and reconciliation commissions (see section 4.2). Historically, the authorities responsible for forced displacement and other major human rights violations have enjoyed immunity from prosecution, which has often been bolstered through amnesties set out in the context of peace agreements or national plans for the transition from dictatorship or military rule to democracy. However, trials for grave human rights violations are increasingly common and are perhaps the foremost type of remedy falling under the category of 'satisfaction'. The trial itself is a form of remedy, but courts may also have the prerogative to award reparations such as compensation. The reparations provisions in the Rome Statute of the International Criminal Court have been applauded by human rights advocates, and have attracted significant interest from legal scholars. As the court rules on its first cases, the practical significance of these provisions for the victims of human rights violations should become clearer.

Since the early 1990s, there has been a proliferation of studies examining the range of courts and tribunals used to prosecute those actors responsible for grave violations of human rights. Research in this field has principally been led by legal and political science scholars focusing on international courts, particularly the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). However, national-level trials and quasi-international courts working in other post-conflict countries such as Iraq are now garnering increased attention. Rwanda's use of gacaca 'courts' to try perpetrators of the 1994 genocide has also attracted interest from a wide range of researchers, including lawyers, anthropologists, and human rights advocates. Indeed, interest is growing amongst scholars and practitioners on how local cultural resources may be used in addition to formal legal mechanisms to advance the pursuit of justice in post-conflict environments.

Although many courts and tribunals have prosecuted displacement as a crime against humanity, and clarified the international legal prohibitions against forced migration, very little research on human rights courts and tribunals has focused on the practical significance of these institutions to the displaced. The public opinion studies published in My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (by Eric Stover and Harvey M Weinstein, Cambridge University Press 2006) question the relevance of high-level accountability initiatives such as trials to achieving a sense of justice at the local level, but further focused, case-specific research is required before conclusions can be drawn about the significance of trials from the point of view of displaced populations.

Beyond trials, official apologies and public commemorations can make a vital contribution to resolving grievances between the state and the victims of human rights violations, including the displaced. Although apologies have sometimes been characterised as attempts to avoid the high cost of restitution and compensation, the case of the Korean comfort women ( ianfu) sexually enslaved by the Japanese Imperial Army during World War II illustrates the centrality of apologies to successful redress and reconciliation. The ianfu refused to accept the generous compensation packages offered by the Japanese government because the compensation was not accompanied by adequate official apologies and the inclusion of the history of the comfort women in Japanese textbooks. As the comfort women were denied the opportunity to have their claims heard in an official court, the surviving comfort women, in cooperation with international advocacy groups, convened a 'People's Tribunal' in 2000, which aired their grievances and was staffed by jurists from courts such as the ICTY.

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