Justice and reconciliation
Legal security for returnees
Return in conditions of safety requires the establishment of legal security for returnees. This entails the restoration of effective national protection. In other words, the displaced should be able to return without fear of harassment, discrimination, arbitrary detention, physical threat, persecution or punishment on account of having been displaced or remaining in exile. Legal security also involves the protection of cultural rights, the prosecution of war criminals and the establishment of a well-trained, professional police force who can provide protection to returnees and respond to complaints. UNHCR urges countries of origin to provide amnesties and guarantees of legal security in advance of repatriation, often through tripartite agreements.
A critical but complex process essential to the establishment of legal security is the institutionalisation of human rights norms and the repeal of laws that discriminate against returnees. In post-conflict scenarios such as in the former Yugoslavia, the repeal of anti-returnee legislation has been part of a broader process of overhauling and streamlining anachronistic legal systems inherited from the Communist era.
- Human Rights Watch (2004) ICTY Justice at Risk: War Crimes Trials in Croatia, Bosnia and Herzegovina, and Serbia and Montenegro, New York, Human Rights Watch. http://www.hrw.org/reports/2004/icty1004/.
Under international law, victims of human rights violations have the right to a remedy. Legal definitions of reparations are established in the International Law Commission’s Articles on State Responsibility and the Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, which were prepared by the UN Special Rapporteur on the Right to Restitution. Three main types of redress fall under the umbrella of reparations: restitution, compensation and satisfaction. The goal of restitution is to restore the conditions that existed prior to the violation, through means such as the return of land and houses. The ‘first form of reparation’, restitution is required unless it is materially impossible or involves a burden highly unequal to the benefit the victim could receive through compensation (Shelton 2002). Housing and property restitution is typically the form of redress most relevant to 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 agricultural lands 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 following conflicts in places such as Kosovo, Tajikistan and Guatemala. In Bosnia and Herzegovina 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.
Financial compensation may be made available to returnees who cannot or choose not to reoccupy their original homes. Compensation may also be extended to the displaced and other victims of human rights violations as a form of redress for the physical and psychological abuses they suffered. However, most of the countries to which and within which refugees and IDPs return simply cannot afford to provide financial compensation to the displaced. The Dayton Agreement envisioned the establishment of a compensation fund for those unwilling or unable to return to their homes, but this fund did not materialise due to lack of support from donors. In such situations, reparations of ‘satisfaction’ may be particularly relevant. 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 5.3). While no form of reparation can fully rectify the wrongs that force people to flee their homes, these types of redress may make the return process more sustainable by acknowledging the violations committed against the displaced, and ensuring some measure of accountability for them.
Although the international community’s interest in transitional justice and reparations for victims of human rights violations (including returnees) is growing, it is important to recognise that the international legal system is not yet sufficiently developed to ensure that remedies are universally and equally available. In order to understand the limits on returnees’ access to reparations, researchers need to examine the provisions of peace agreements, the political will of national political powers, and the support of the international community. The Sudanese Comprehensive Peace Agreement, for example, does not fully address restitution or land policy issues. Consequently, researchers and analysts anticipate that conflicts over land between local residents and returnees could easily hinder the peace process.
- Bosnian Commission for Real Property Claims (CRPC) http://www.law.kuleuven.ac.be/ipr/eng/CRPC_Bosnia/CRPC/new/en/main.htm
- Centre on Housing Rights and Evictions (COHRE) http://www.cohre.org/
- Davies, A. (2004) ‘Restitution of land and property rights’, Forced Migration Review 21. http://www.fmreview.org/text/FMR/21/04.htm
- Farha, L (2000) ‘Women’s Rights to Land, Property and Housing’, Forced Migration Review 7: 23-26. http://www.fmreview.org/text/FMR/07/07.htm
- Hurwitz, A., Studdard, K. and Williams, R. (2005) Housing, Land, Property and Conflict Management: Identifying Policy Options for Rule of Law Programming, New York, International Peace Academy. http://www.ipacademy.org/Publications/Publications.htm
- International Center for Transitional Justice (ICTJ) http://www.ictj.org/
- International Tribunal for the Former Yugoslavia (ICTY) http://www.un.org/icty/
- International Criminal Tribunal for Rwanda (ICTR) http://188.8.131.52/default.htm
- Iraq Property Claims Commission (IPCC) http://www.ipcciraq.org/01_about.htm
- Kosovo Housing and Property Directorate (HPD) http://www.hpdkosovo.org/
- National Service of Gacaca Jurisdictions http://www.inkiko-gacaca.gov.rw/En/EnIntroduction.htm
- Redress http://www.redress.org/
Reconciliation and coexistence
Post-conflict reconciliation is an issue that has sparked great interest amongst researchers. Following the genocides in Rwanda and the former Yugoslavia, the centrality of reconciliation to the return process was made clear. While most researchers and policymakers recognise that complete reconciliation in the aftermath of such atrocities is impossible, some degree of reconciliation or, in the least, an openness to coexistence is essential to enable returnees to live peacefully alongside their former neighbours. Reconciliation initiatives were launched in return areas of Bosnia and Rwanda by UN agencies and international and local NGOs. Many focused on encouraging members of conflicting ethnic groups to embark on common agricultural or entrepreneurial activities, or frequent shared public spaces such as sports clubs and schools. In countries such as Mozambique, more informal routes to reconciliation were pursued, drawing on local cultural resources such as traditional healing ceremonies.
In cooperation with Tufts and Harvard Universities, UNHCR sponsored a multi-year program in return communities in Bosnia and Rwanda entitled Imagine Coexistence, through which UNHCR supported locally-led initiatives intended to promote the reintegration of minority returnees into communities struggling with persistent ethnic divides. The analysis of Imagine Coexistence and similar programs have provided practitioners with valuable insights into the design and implementation of locally relevant reconciliation and coexistence activities that may translate into improved conditions for returnees and their neighbours.
Truth and reconciliation commissions have also helped establish conditions for sustainable, dignified returns by validating the testimony of the displaced and ensuring that the violations they experienced are not erased from the national historical record. For example, investigators from Guatemala’s UN-sponsored Commission for Historical Clarification hiked into remote areas of the country to interview thousands of civilians who were displaced by the war. Although the Guatemalan Commission for Historical Clarification was criticised as a structurally weak body, many of the displaced persons who testified for the Commission 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 a genocide, and deemed the Guatemalan state and its paramilitaries responsible for 93 percent of the atrocities of the war.
- Babbitt, E. et al (2002) Imagine Coexistence: Assessing Refugee Reintegration Efforts in Divided Communities, Boston, Tuft’s University http://fletcher.tufts.edu/chrcr/pdf/imagine.pdf
- Centre for the Study of Violence and Reconciliation http://www.csvr.org.za/
- Commission for Historical Clarification (2000) Guatemala: Memory of Silence—Report of the Commission for Historical Clarification. http://shr.aaas.org/guatemala/ceh/report/english/conc1.html
- Institute for Justice and Reconciliation http://www.ijr.org.za/
- South African Truth and Reconciliation Commission http://www.doj.gov.za/trc/