Include Displacement Issues within Transitional Justice Mandates

16. Oktober 2018   ·   Roger Duthie

Displacement crises can create fertile ground for future conflict and extremism if they remain unaddressed. Thus, for international donors such as Germany, it is critical to support transitional justice processes that include large-scale displacement and the justice claims of victims within their mandates. Measures can be taken even while violent conflicts are ongoing.

Today’s contexts of violent conflict, repression, and economic crisis have brought a significant escalation of displacement in and from countries such as Syria, Afghanistan, Myanmar, and Colombia. According to the UNHCR, there are now 68.5 million forcibly displaced persons globally, 40 million of those within their home countries and 25.4 million as international refugees.

Displacement crises are in many ways human rights crises and should thus be a concern of transitional justice. They are caused by mass killings, arbitrary arrests, torture, and rape as well as economic and social rights violations. Forced displacements are often a deliberate strategy and can constitute a war crime or a crime against humanity. Furthermore, they can create fertile ground for future conflict and extremism if the grievances and exclusion they can lead to remain unaddressed.

Support transitional justice processes that address displacements

For international donors such as Germany and other external actors seeking to prevent human rights violations and foster sustainable peace and development, it is critical to support transitional justice processes that include large-scale displacement and the justice claims of victims within their mandates.

For transitional justice to do this effectively, it must be appropriate to local contexts and respond to the specific needs of victims. The new transitional justice strategy of the German government should therefore include interventions which are developed in consultation with displaced populations and with local actors who provide support and protection to refugees and internally displaced persons. Listening to the voices of displaced communities allows for their experiences, priorities, and concerns to shape durable solutions.

Also, German transitional justice programs should consider the gendered dimensions of displacement by incorporating family concerns and addressing gender-based violence, and should be a part of a broader set of structural reforms that address the root causes of displacement and violent conflict, including land reform.

Start while violent conflict and displacement are ongoing

In contexts where violent conflict is ongoing, efforts to address the injustices of displacement are usually restricted due to political constraints, security risks, and the ever-increasing number of victims. But this does not mean that nothing can be done. In Colombia, for example, multiple transitional justice processes were set up in the years before the 2016 peace agreement to redress displaced persons.

At a minimum, discussions with displaced persons about their views and concerns regarding return and reintegration or other durable solutions amplify the voices of the displaced and potentially prompt future transitional justice processes to engage with and address the concerns of the displaced more effectively. Here, international donors should consider supporting regional approaches to transitional justice, in order to fully understand and acknowledge the experiences and dynamics of displacement.

The International Center for Transitional Justice (ICTJ) has recently conducted extensive interviews with Syrian refugees in Lebanon and Jordan and with Central African refugees in Chad and Cameroon, which have demonstrated the need for both local-level interventions aimed at encouraging members of the community to work together to rebuild social ties and top-down messages of inclusion in the public statements of high-level state representatives if justice is to contribute to reintegration when return is possible.

Truth commissions, reparations: Transitional justice has numerous forms

Past research demonstrates that, once conflict and repression have come to an end, transitional justice can address displacement in numerous ways. In postwar Bosnia-Herzegovina, for instance, a restitution program processed hundreds of thousands of claims made by displaced persons for lost homes. In Guatemala, Peru, and Colombia, reparations programs have included displacement as a crime meriting reparation. On a broader level, state attempts to support the resolution of displacement through repatriation, resettlement, or local integration could have reparative value if they are undertaken as an expression of responsibility for generating, or failing to prevent, displacement crises.

Truth commissions in countries such as Liberia, Sierra Leone, Timor-Leste, and Guatemala have increasingly examined the role of displacement in violent conflict, as well as the suffering and stigma endured by the displaced. Criminal prosecutions can target the perpetrators of violations that cause displacement as well as the crime of forced displacement itself, according to the statutes of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Court, and the Geneva Conventions. Humanitarian, development, and peacebuilding actors have also in a number of cases participated in transitional justice efforts that address displacement.

Legacies of past violations often hinder reintegration

Facilitating the integration or reintegration of displaced persons, in their home, host, or resettlement communities and countries is a critical long-term contribution that transitional justice can make to resolving displacement and potentially helping to prevent the recurrence of violations. However, reintegration is often significantly hindered by the legacies of past violations, at both the individual and societal levels. Therefore, by addressing grievances, reaffirming norms, strengthening displaced persons’ rights as citizens, and including their voices in new narratives, transitional justice may foster reintegration. For this purpose, Germany and other international partners have a range of measures.

Criminal justice and security sector reform help reintegration by removing individuals responsible for crimes from the police, military, and judicial system and establishing effective oversight mechanisms. Restitution increases access to shelter and land, while compensation can support the construction of homes and businesses. Truth telling may help to reduce tensions between those who were displaced and those who stayed, validating the experiences of the different groups, or bringing low-level offenders among the displaced together with communities.

Challenges to transitional justice

At the same time, however, transitional justice faces certain challenges related to displacement. Criminal justice, for example, can create disincentives to return home for those accused of complicity in violence among the displaced or increase government resistance to acknowledging its own involvement in crimes related to displacement. Advocates for the return of land and other rights can face targeted harassment and violence, such as in Colombia. Reparations can create divisions among displaced groups and other victims over issues like the determination of victim status and qualification criteria for benefits. International donors should be aware of local dynamics in order to minimize such tensions or risks and support both outreach efforts that clearly convey the nature and importance of justice measures.

The scope and complexity of displacement also constrain justice processes. Providing compensation to thousands or millions of people, for instance, may be impossible: Technical and institutional challenges include assessing the needs of the displaced, distributing appropriate benefits, and determining who qualifies as a victim. Criminal justice can be constrained by resource, political, and evidentiary challenges that lead prosecutors to prioritize other crimes. Victims may face obstacles to participation, access, and mobilization if they lack information, organizational capacity or identity and property documents. And the appropriateness of restitution may be unclear if restoring the prior distribution of property would not be just.

How transitional justice can contribute to prevention

In recent years, violent conflicts have both increased in number and evolved in nature, often becoming protracted and spreading their risks and impact across borders and regions. In response, global policy discourse has focused on the notions of sustainable peace and development. The 2015 Sustainable Development Goals, for example, call for peaceful, just, and inclusive societies, of which not only the rule of law and access to justice are a feature, but also the reduction of violence in all forms. The notion of prevention has also been prioritized by UN Security Council and UN General Assembly resolutions, UN Secretary-General reports, and a UN-World bank study, Pathways for Peace. If transitional justice is to contribute to prevention, it needs to adapt to the dynamics of local and regional contexts. If donors are to enable transitional justice interventions that contribute to sustainable peace and development, they should support efforts to reform the institutions and structures that enabled displacement and reintegrate those who suffered its injustices. This requires above all else engaging with the displaced themselves and listening to how their experiences have shaped their needs and justice claims.