The Kampala Convention on internal displacement in Africa: What does it mean for housing, land and property restitution?

by Mike Asplet and Megan Bradley

Mike Asplet is an attorney currently working with the Brookings-LSE Project on Internal Displacement. Megan Bradley is a Fellow at the Brookings Institution, where she works with the Brookings-LSE Project.

The African Union’s Kampala Convention for the Protection and Assistance of Internally Displaced Persons (IDPs) in Africa will hopefully come into force any day now. When it does, it will be the first regional treaty to comprehensively address the IDP issue, from preventing displacement to providing protection and assistance, and supporting durable solutions. The Kampala Convention represents a critical new tool for tackling some of the largest and most complex IDP situations in the world: some 10 million people are internally displaced across the continent, making up one third of the world’s IDP population.

The treaty reflects well-established normative frameworks, primarily the Guiding Principles on Internal Displacement, which have to date provided the foundation for IDP protection and assistance efforts. However, the Kampala Convention also significantly advances the normative framework on internal displacement in several key areas. These include protection from arbitrary displacement; the responsibilities of the African Union, multinational companies and private security actors; and the right to a remedy for the wrongs associated with displacement, including the loss of housing, land and property (HLP). The question of remedies for lost HLP is particularly important, as land conflict is at the root of many internal displacement flows in Africa, and the resolution of hotly contested land claims represents a key barrier to solutions for thousands of IDPs.

On first glance, it doesn’t seem like the Kampala Convention has much to say about land issues, and in particular the restitution of displaced persons’ lost property. In light of the popularization of the (contested) UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (the so-called “Pinheiro Principles”) and trends such as the now-common practice of explicitly addressing the restoration of displaced persons’ HLP rights in peace treaties, it is striking that there is no reference to restitution in the Kampala Convention. This omission is clearly deliberate. While many provisions from the Guiding Principles have been specifically incorporated into the Kampala Convention (in some places without amendment), the documents diverge considerably in their approach to question of HLP rights, and restitution in particular.

Doing justice for refugees and IDPs? Confronting displacement through transitional justice

by Roger Duthie and Megan Bradley

Roger Duthie is a Senior Associate in the Research Unit at the International Center for Transitional Justice. Megan Bradley is a Fellow at the Brookings Institution, where she works with the Brookings-LSE Project on Internal Displacement.

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.

Protection in the past tense: New book on displacement and transitional justice explores the role of restitution

by Rhodri C. Williams

This summer, the International Centre for Transitional Justice (ICTJ) published a new edited volume on Transitional Justice and Displacement (click here for the free PDF version) together with the Brookings-LSE Project on Internal Displacement. The book was based on an initial round of research papers and has been accompanied by a much shorter policy brief. All of these resources have been prominently featured on dedicated pages at both the ICTJ website and at Brookings. The volume forms part of a broader series on Advancing Transitional Justice and was edited by Roger Duthie, a senior associate at the ICTJ and a patient and thoughtful collaborator – qualities I appreciated greatly in drafting the third chapter of the book on housing, land and property (HLP) restitution.

The book’s authors chart the relationship between humanitarian responses to displacement and the traditional components of transitional justice (prosecution, truth-telling, institutional reform and reparations) along with more recently articulated concerns such as gender justice. The broader issue of reparations for displacement was ably addressed by Peter van der Auweraert, head of the IOM’s land and reparations program and past TN guest-blogger. In one sense, my chapter on HLP restitution was much narrower than Peter’s. After all, HLP violations are only one of the many types of injuries typically suffered in the course of displacement, and restitution is only one of the forms of redress that can be applied. At the same time, what I enjoyed most about writing the chapter was the opportunity it gave me to think at the broadest possible level about how the fundamental goals and methods of humanitarian action comport with those of transitional justice and even development assistance.

Redress without fault? UN to promote ‘automatic’ state reparations for terrorist attacks

by Rhodri C. Williams

The Guardian informs about a new report slated for release in June by the UN’s special rapporteur on counter-terrorism and human rights, Ben Emmerson. The report is said to propose “automatic legal rights to compensation and rehabilitation” for terror victims “under far-reaching changes to rebalance international law in favour of victims”:

The Emmerson report, if accepted, would have the effect of obliging all UN states to adopt a uniform set of standards, establishing more firmly in international law the principle that terrorist acts amount to violations of the human rights of the victims, irrespective of the question of direct or indirect state responsibility.

Sound intriguing? At first blush, this certainly seems to go beyond developments such as recent European Court of Human Rights jurisprudence requiring states to provide reparation to victims of foreseeable disasters that the state did not take reasonable steps to mitigate (on which, see Walter Kälin and Claudine Haenni here).

The text of the article implies a scoop, breathily citing details of the report “which have been obtained” by the Observer. However, fortunately for the rest of us, the entire draft report can be “obtained” by downloading it directly from the Rapporteur’s website. And it is worth a read, particularly paragraphs 49-63 on reparations.

Interestingly, the Special Rapporteur has not created an entirely ex gratia framework, but rather extended the notion of the state’s positive obligation to prevent terrorism based on a victim-centered approach. The idea that victims have undertaken an involuntary sacrifice on behalf of the state is endorsed (para 54), and the fact that it is virtually impossible to seek reparations from the perpetrators of terrorism is asserted as “perhaps the most fundamental point” (para 56). However, the existence of a human rights-based ‘duty to protect’ from terrorism appears to play a significant role:

…the determination of State responsibility for an alleged failure to take positive operational steps to prevent an act of terrorism can be fraught with evidential difficulties. If the approach advocated by the Special Rapporteur is followed, States will be under an obligation to provide reparation without imposing an additional burden on the victims or their next-of-kin to prove conclusively that public officials were at fault. (para 55)

Curiously, the report cites the Van Boven-Bassiouni Principles (at para 51), but only on the basic point of substantive reparations for rights violations, but not the implication in paragraph 15 thereof that the state should assume up-front responsibility for repairing rights violations by non-state actors, with the ability to later seek indemnification from the real perpetrators:

In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.

The section ends with an interesting discussion of the significant body of domestic law and practice that already exists in this area. According to the Guardian, the report is to be “presented to the UN human rights council in Geneva on 20 June and the general assembly in New York on 28 June” and already enjoys significant backing. Definitely one to watch.

Colombia’s Victims’ Law enacted – Last stand or new beginning for programmatic property restitution?

by Rhodri C. Williams

In a signing ceremony attended by UN Secretary-General Ban Ki-moon, Colombian President Juan Manuel Santos ratified the Victims’ Law last Saturday, fulfilling his  unexpected and ambitious post-election pledge to enact a property restitution bill. Commentary on TN has highlighted both the unprecedented nature of this effort and the formidable obstacles it faces.

The fate of this legislation takes on additional significance against the background of current debates over the post-conflict ‘right to restitution’ proclaimed most prominently in the 2005 Pinheiro Principles. As early enthusiasm about restitution has faded, the need to respond to prevailing humanitarian trends such as urban vulnerability and protracted displacement has led to an increased emphasis on local integration as a durable solution. The extent to which programmatic restitution – and the promotion of voluntary return – remains seen as a viable complementary strategy to local integration efforts may depend on the outcome of the increasingly rare test cases, such as Colombia, that tackle this challenge head on.

Colombia passes a Victim’s Law promising land restitution and broader redress

by Sebastián Albuja

Sebastián Albuja is the country analyst for Colombia for the Internal Displacement Monitoring Center (IDMC). He previously guest-posted on earlier drafts of the current Colombian restitution legislation here. In light of the possibility that further changes to the legislation may come about as a result of a possible conciliation process between the two houses of the Colombian legislature, Sebastián has kindly offered to provide further updates if necessary. A pdf version of the current draft will also shortly be available at the IDMC Colombia page.

The Colombian Congress recently passed a law to provide reparations to the victims of conflict and set up a property restitution plan.  The so-called ‘Victim’s Law,’ which has been in the making since September 2010, has been much awaited by hundreds of thousands of victims of violence and human rights abuses in Colombia’s ongoing armed conflict.

The law has been hailed as an important accomplishment for the victims of conflict and land dispossession, and IDMC, whose 2010 report supported the initiative and commented on the bill’s text, joins in welcoming the adoption of the Victim’s Law.  In a highly charged political environment, and trailing on a path of similar failed initiatives, the political deal brokered by the majority is no minor accomplishment.  With this law, the Colombian Government has taken a step in the right direction to redress the victims of a conflict they did not seek, and to discharge its obligations under Colombian and International Law.

Kyrgyzstan Inquiry Commission – Osh riots resulted in crimes against humanity

by Rhodri C. Williams

The Kyrgyzstan Inquiry Commission set up to examine the violence between ethnic Uzbeks and Kyrgyz that killed nearly 500 people last June in the country’s south has just released its report. Most media attention has been devoted to the fact that the Commission identified the minority Uzbek community as the overwhelming victims of the attack, found evidence of official complicity, and alleged that some of the acts committed may amount to crimes against humanity. However, a number of the Commission’s less prominent findings confirm both the role of property destruction in consolidating the victimization of the Uzbek minority and the need for reparations to address these and other crimes.

Yugoslavia Tribunal issues Gotovina judgment – discriminatory property laws deemed persecution

by Rhodri C. Williams

The International Criminal Tribunal for the former Yugoslavia (ICTY) today convicted two Croatian Generals, Ante Gotovina and Mladen Markač, and acquitted one, Ivan Čermak, of charges of crimes against humanity and violations of the laws or customs of war. The charges were related to crimes committed during the Operation Storm military campaign between July and September 1995, during which Croatian forces reasserted control over the breakaway Krajina region and displaced as many as 250,000 Croatian Serbs to Bosnia and Serbia.

The Storm campaign has been described both as the largest land offensive in Europe since World War II and as the single most egregious act of ethnic cleansing in the first round of fighting surrounding the breakup of the former Yugoslavia (the consecutive expulsions of Kosovo Albanians and Serbs in the 1999 Kosovo conflict would give it a run later). While I have not yet had time to read the full decision (which weighs in at hundreds of pages), the ICTY press release and summary of the judgment are more accessible and provide a picture of an important and sweeping ruling.

The Court appears to have taken further steps to shift the post-Cold War phenomenon of ethnic cleansing more clearly into the legal category of crimes against humanity involving persecution. In doing so, they have provided an important (and overdue) recognition of the central role that administrative confiscation and reallocation of property and homes play in consolidating such acts. Whether this ruling will have an impact on the somewhat murky negotiations now going on between Croatia and Serbia over compensation for the effects of these acts – in the form of the permanent loss of many Croatian Serb homes – is another question.

Note on ECtHR Decision in Demopoulos v. Turkey

by Rhodri C. Williams

Along similar lines to my earlier piece on the UNRoD, I recently wrote an introductory note for the publication in International Legal Materials of a key decision on property rights in Cyprus by the European Court of Human Rights.

The Demopoulos decision is interesting from a number of perspectives, but not least for the new approach it brings to the issue of what standards should guide the question of when compensation can be provided in lieu of restitution (an issue I’ve opined on a number of times in the past, including here with regard to the IASC framework on durable solutions for IDPs).

The proper name of the final version of this article is “Introductory Note to the European Court of Human Rights: Demopoulos v. Turkey” and it was published in its final version in the Volume 49 No. 3 issue of International Legal Materials. The version reproduced below is an edited draft.

———————

INTRODUCTORY NOTE TO THE European Court of Human Rights: Demopoulos v. Turkey

BY RHODRI C. WILLIAMS

I.            Introduction

On March 1, 2010, the Grand Chamber of the European Court of Human Rights decided to reject the applications of seventeen Cypriot citizens against Turkey as inadmissible.[i] The applicants had alleged various violations of the European Convention of Human Rights, but the Court’s decision in Demopoulos turned on examination of their claims related to the right of property under Article 1 of the First Protocol to the European Convention on Human Rights, as well as the right to the home under Article 8 of the Convention.

All of the applicants in Demopoulos are Greek Cypriots who were displaced by the 1974 Turkish invasion and occupation of north Cyprus, and subsequently denied the use of their properties and access to homes they left behind. Essentially, this ruling is the latest in a fourteen-year line of decisions against Turkey related to the unresolved conflict in Cyprus. However, this ruling also breaks with its antecedents. First, it finds that the property claims process set up in Turkish-controlled northern Cyprus may constitute an effective domestic remedy; and, secondly, it requires Greek Cypriot applicants to demonstrate that they have exhausted this remedy before their applications to the Court will be found admissible.

The broader significance of the Court’s decision in Demopoulos is two-fold. On the one hand, the decision represents the most emphatic expression to date of the Court’s determination to implement a new “pilot case” procedure. This procedure is meant to relieve the Court of a large backlog of cases by encouraging States Parties to the Convention to adopt systematic approaches allowing the domestic resolution of repetitive, or “clone” cases pending before the Court. On the other hand, the decision appears to represent a conscious effort by the Court – as one of many international players involved in the protracted negotiations over the Cyprus issue – to strike a practical balance between heretofore irreconcilable Greek and Turkish Cypriot negotiating positions.

Sebastián Albuja on the Colombia restitution bill

NB: Sebastián Albuja covers Colombia for IDMC and is currently working on a report on restitution issues there. In the meantime, he has provided a few comments on my post from yesterday, including a closer reading of the new draft restitution law which is so interesting that it deserved to be a post in its own right:

Hi Rhodri and colleagues,

I agree with you that the momentum given by the Santos administration bodes well for the adoption of a reparations program this time around. For one, the administration has a clear majority in Congress that should in principle support this Government-backed bill. However, questions remain regarding some aspects of the bill. In the meantime and while we finalize our report, here is a brief description and commentary on the proposed bill.

The ‘motivations’ section of the bill mentions that it sets out to implement the orders given to the Government by the Constitutional Court in relation to IDPs land rights. The bill does include many guarantees for victims contained in the Colombian Constitution and international law (and included in your recommendations in the Displacement Solutions report).

Firstly, it chooses restitution as a preferential mechanism over alternative means of reparation. Secondly, it makes eligible for restitution not only those with property titles, but also people that had informal tenure over land. Thirdly, it establishes a presumption that dispossession happened in areas where generalized violence took place. These areas will be determined and delimited by the government prior to the implementation of the mechanism, and will be made priority zones for restitution.