Tag Archives: restitution

The Kosovo Constitutional Court on displaced persons’ property rights: Can mediation ever count as enforcement?

by Massimo Moratti

Protecting the property rights of displaced persons in post-conflict scenarios presents a number of interesting challenges, not least when internally displaced persons (IDPs) face illegal construction on their land and therefore are forced to seek remedies before the relevant institutions, including mass claims mechanisms.

One of these cases, which is probably not an isolated one, occurred recently in Kosovo, where the Kosovo Property Agency (KPA) is the local mass claim mechanism which inherited the competences of the UNMIK Housing and Property Directorate (HPD).  Established in 2006, the Kosovo Property Agency became an independent agency functioning in accordance with the Constitution of Kosovo after the unilateral declaration of independence.  The mandate of the KPA focuses on claims for land and commercial property, which were not addressed by the UNMIK HPD, since the HPD’s mandate did not cover such claims and the local courts were in theory competent for the receiving them. Since its inception, the KPA has collected claims for over 42,000 properties and decided 96% of those claims.

While the process of issuing decisions is approaching its end, the implementation of such decisions in a number of cases is becoming particularly problematic, especially those cases where a new building has been constructed on claimed properties. It is worth recalling that the KPA was created in 2006 and for the period 1999-2006 there was no claims mechanism to deal with claims for land, nor were courts capable of effectively processing such claims.  In the meantime, “a lot has been built in Kosovo”, to quote one of the officers of the Ombudsman office when contacted about the issue of illegal construction.

The problem the KPA is facing now is how to deal with such cases, where an illegal occupant has built a residential or commercial building on a claimed plot of land. In theory, the KPA could resolve to seize and demolish the building, sell it at an auction, broker a lease agreement or place the building under administration. However, practice has departed significantly from the procedures foreseen in the law. The KPA has instead developed a mediation procedure in order to try to solve these cases without resorting to destruction of buildings. IDPs facing illegal construction are now routinely informed by the KPA about the impossibility of demolish such buildings and offered the possibility for mediation.

This offer of mediation raises a number of issues and leaves a number of questions unanswered.  The case KI187/13 recently brought before the Constitutional Court of Kosovo highlights how the procedure of mediation collides with the provisions of the European Convention on Human Rights (ECHR). In this case, a female IDP who left Kosovo in 1999 and has lived in destitute conditions since sought repossession of a large plot of land in an attractive location outside Pristina with significant commercial value. On the same plot, an illegal occupant had built three houses with a swimming pool. The applicant claimed her property in 2006 and a KPA decision in her favor became final and binding in 2013.

The KPA however told the applicant that they could not enforce her claim, because the property had changed since the time she owned it and the KPA lacked the resources to demolish the existing buildings. They offered instead to mediate between her and the illegal occupant. The applicant refused such mediation and instead addressed the Constitutional Court of Kosovo, claiming a violation of her rights to property, to a fair trial and to an effective remedy. Continue reading

Land reform in Colombia: One step forward, two steps back

by Nelson Camilo Sánchez and Ilan Grapel

Nelson Camilo Sánchez is a research coordinator of the Center for the Study of Law, Justice, and Society Dejusticia and associate professor at the Universidad Nacional de Colombia in Bogota. Ilan Grapel is a recent graduate of Emory University School of Law. For the last six months, he has been working with Dejusticia, where he has been researching issues relating to transitional justice in Colombia’s peace process.

Land reform in Colombia, while politically sensitive, is necessary to stabilize the country and end a violent conflict that has plagued Colombians for more than half a century. Colombia’s internal fighting has deprived millions of their land and livelihood. Adopted in June 2011, Colombia’s Victims and Land Restitution Law, also known as Law 1448, is an important advance in providing restitution for those displaced by the conflict.

With this law, the government officially recognized the existence of an internal armed conflict. The Victims Law demonstrates that the government hopes to provide greater rights to the victims of the conflict. However, this legislation needs to overcome many obstacles; foremost among them, the Victims Law needs to find a way to provide reprieve to the large number of victims who may be entitled to compensation under the law.

To date, the government has made progress in realizing restitution claims. However, the law alone cannot cure Colombia of inequality within its population. As the government struggles to return impoverished victims to their lands, the moneyed classes continues to aggregate land and resources that allow them to maintain a lifestyle vastly different from the average Colombian, let alone the landless farmers. This inequality creates a tension that prolongs the hostilities and continues the displacement in the region.

For Colombia to transition into a successful and stable country, the government needs both to improve the Victims Law and address other land distribution problems.

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Upcoming guest posting on the Colombian restitution process

by Rhodri C. Williams

I am very pleased to announce another happy by-product of my recent participation in the Essex Transitional Justice Network’s recent course and seminar on land issues in transitions. In addition to Clara Sandoval’s upcoming guest-post on the Inter-American Court of Human Right’s recent ruling on Chile, I can now reveal that another seminar participant, Camilo Sánchez of the Colombian NGO Dejusticia, will be writing for TN together with his colleague Ilan Grapel.

I have had the pleasure of getting to know Camilo during earlier work on property issues in Colombia, such as a UNHCHR workshop for the then-newly minted restitution judges precisely a year ago (for all the presentations including my own in simultaneous Español, see here). In the context of what is often a hopelessly prickly relationship between government and civil society, Camilo and his colleagues at Dejusticia deftly combine effective advocacy with sharp, independent analysis.

Camilo’s post will focus on the implementation of the current program of restitution of land aimed primarily at victims of Colombia’s right wing paramilitaries, arguing that improvements to the functioning of the restitution law should be accompanied by a broader commitment to distributive reforms. This is of course a crucial topic at the moment for Colombia, given the negotiation process with the Farc that resulted in a landmark agreement on agrarian reform last Spring.

One of the issues that has haunted both the current restitution process and the Government’s efforts to negotiate an end to the conflict with the Farc has been the issue of whether it will truly be capable of ending a centuries-long tradition of failed land reform and resulting political instability. Ana Maria Ibanez and Juan Carlos Munoz captured this historical dynamic in their chapter of a 2010 Forum for International Criminal and Humanitarian Law volume on “distributive justice in transitions” (highly recommended and available here in pdf).

Ibanez and Munoz describe how Colombia’s vast interior allowed successive governments to buck pressure to redistribute land by encouraging the “colonization” of smallholder plots – only to have the big landowners swallow these plots up again, turning their cultivators into impoverished and aggrieved tenants. Cited in a recent article in the Economist, Ibanez has gone on to note how mass displacement and ongoing violence from the last round of ‘agrarian counter-reform’ have fundamentally reduced tenure security for all farmers, reducing the country’s agricultural efficiency:  Continue reading

Svaka čast Croatia

by Rhodri C. Williams

And let me say how honored I am that you chose my birthday for accession to the EU! I’ve had a pretty complicated relationship with you in the past, I have to admit. On the positive side, I used to flee to you when the narrow valleys of Bosnia got me feeling fenced in and I needed to pop over that last rise after the Metkovic border crossing and let that view – the burnished expanse of the Adriatic – seep physically into me. We also used to pile out to the north, going hell for leather from Slavonski Brod along the ex-Highway of Brotherhood and Unity, anything just to hit Zagreb before the only Mexican restaurant in the West Balkans announced last call.

Beyond my personal enjoyment of your charms, I was also impressed in a grim way by your ability to stick it out as a small country in a historically tough neighborhood. The sort of existential problems you faced in the 1990s were unlikely anything I could imagine, having grown up in the protected suburban vastnesses of the 1970s US midwest. The problem, in my mind, was not (only) that you didn’t have clean hands (nobody did). The problem was that you couldn’t come clean about it. Of course, nobody else could either, but you, unlike the others, just galumphed right over your historical indiscretions like so many speed bumps on the boulevard to European integration.

So what is my beef? Well, I worked on property restitution in Bosnia. So I watched as the ‘international community’ in Sarajevo turned the screws on the Bosnians until they extended restitution to cover not only all private houses but also all socially owned apartments (with a few fateful exceptions of course). And I watched as the same international community in Zagreb gradually conceded points that we had gone to the wall over in Sarajevo and started to purge terminology like ‘tenancy rights’ from documents like EU accession progress reports.

I also worked on the OSCE and ICHR friend of the court briefs in the ill-fated Blecic case before the European Court of Human Rights, and assisted the Council of Europe Parliamentary Assembly’s attempt to push for uniform restitution standards in Europe. I marveled both when the ICTY condemned the uncompensated confiscation of 30,000 socially owned apartments as part of a broader plan to remove Serbs from Croatia, and when that ruling fell on a seeming technicality. And I am left to conclude that the relatively prosperous and self-confident Croatian political elite was simply not held to the same rigorous standards still being applied to their poor and less organized cousins in Bosnia.

The bottom line is that the country that declared independence in 1991 had a 12.2% Serb minority while the country that joined the EU today has a 4.4% Serb minority, and that little statistic patches over a lot of ongoing misery and unredressed violations. Now I know its still not an easy time for you what with sliding EU support and all the commentators cracking wise about how you fought your way out of one oppressive, economically troubled confederation twenty years ago only to fling yourself into another today. So I’ll say only this. It is entirely to your credit that you have entered the hallowed precincts of the EU but it is troubling that you did so with a certain number of skeletons clanking around in your luggage.

Of course, one might as easily find fault for this state of affairs in Brussels as in Zagreb. But pressuring countries that are already in to observe such niceties as the Copenhagen criteria and the rule of law is not the EU’s traditional strong suit. In any case, that is nothing that should prevent you from finding that it lies in your own best interest to engage sooner rather than later with your past. And doing so in a clear-eyed way would, at a stroke, remove many of the excuses holding back your EU-aspirant neighbors from doing the same. And maybe leave both the EU and the western Balkans in better shape as a result. So, congratulations, and good luck as part of the European project of building a future worthy of the sacrifices and suffering of the past.

Land deal between Government and FARC in Colombia

by Rhodri C. Williams

Reports have emerged this morning that peace negotiations between the Colombian government and the left-wing Farc rebels have resulted in an accord on land issues. The chief Government negotiator, Humberto de la Calle describes the land agreement (here, in Spanish) as a measure that will “transform the rural realities of Colombia and create real changes that can close the gap between rural and urban areas.”

In both Mr. de la Calle’s official statement and the actual Joint Communication issued by the parties to the negotiations in Havana (both in Spanish), a good deal of stress is placed on the principle that “nothing is agreed until everything is agreed.” Thus, although the land accord represents a real breakthrough, it will remain no more than “principles that orient” the peace talks until the peace talks are concluded. And numerous challenges lay ahead, beginning with the next chapter of talks on FARC’s future political status.

However, there is certainly cause to take hope. While the current set of statements are vague on details, two principles appear to be clearly endorsed. The first is that the accord would support an equitable approach to land in rural areas, bringing broad-based economic and social development and securing land for campesinos. If implemented, this would quite simply set the last three hundred years of Colombian rural land policy on its head.

Second, the starting point for the accords appears to be the principle that those wrongfully dispossessed of their land in connection with the decades long conflict between the Farc and the government must receive a remedy. While the parties continue to disagree on who is responsible for how much dispossession (as between  right wing paramilitary groups that have enjoyed the tacit support of the Government in the past and Farc fighters), the establishment of the principle that victims should receive remedies in all cases, is a crucial breakthrough.

Just how crucial will be clear to anyone who has studied the long and tormented history of restitution proposals made during the previous process of demobilising right wing paramilitaries, beginning during the tenure of the previous President Alvaro Uribe, but only meaningfully engaged under the current President Manuel Santos. And a very healthy precedent was set by the fact that when restitution legislation was finally passed early in President Santos’ presidency, it applied in principle in favor of all victims, regardless of the perpetrator.

It is encouraging that the land accord reached in the Farc peace process appears to have bypassed the protracted wrangling over responsibility for dispossessions and other abuses that plagued paramilitary demobilisation. However, the most hopeful sign of all may be that the restitution process that resulted from paramilitary demobilisation appears to have taken hold, with a dedicated corps of restitution judges issuing fairly bold decisions on the return of land taken by notorious paramilitary groups, many of whom remain active – and dangerous – in the form of ‘criminal bands’.

The slow pace of the current restitution process and the continued risks to both claimants and adjudicators indicate the challenges that will face the eventual implementation of the Farc land accords. At the same time, the apparent commitment of the Santos Government to implementation of its restitution commitments in the wake of paramilitary demobilisation may give victims of the conflict with the Farc reasonable grounds for hope.

Post-conflict property restitution in Kosovo: A continuing challenge

by Guido van Heugten

Guido van Heugten graduated from the ‘NOHA’ masters program in International Humanitarian Action at Uppsala University). He wrote his thesis on ‘Post-Conflict Property Restitution in Kosovo’.

Even over a decade after the violent conflict of 1999, Kosovo is often still referred to as a ‘hot potato’ that has been passed on from the UN to the EU, which is currently desperately searching for ways to find a resolution for the dispute between the governments in Belgrade and Pristina. The recently elected Serbian president Tomislav Nikolic has stated that Kosovo Serbs are currently living under threat of genocide and that he would not rule out a partition between ethnic Serb and Albanian regions. UN Secretary General Ban Ki-Moon, on a visit to Kosovo, tried to focus more on common challenges and opportunities and made another attempt to stress the importance of dialogue in order to find resolution to the regions issues.

The population of Kosovo is indeed still much divided between the lines of ethnicity and identity, fuelling a volatile security situation, especially in the Northern provinces surrounding the divided town of Mitrovica. Together with resolution of the political problems relating to Kosovo’s continuing status as a UN protectorate, it is crucial that serious efforts are being made by all stakeholders to finish the property restitution process and ensure respect for housing, land and property (HLP) rights in the context of conflict resolution efforts in the region.

Due to the 1990s trends toward increasing displacement and internal conflicts and the decreasing will of Western states to provide asylum, voluntary return (as opposed to resettlement) became the preferred policy when dealing with displaced populations in post-conflict contexts. This is also expressed by the development of international policy around that time, culminating in the adoption of the ‘Pinheiro Principles’ on Housing and Property Restitution for Refugees and Displaced Persons in 2005.

The 1998-99 conflict in Kosovo caused immense damage to property, which the Office of the High Commissioner for Human Rights determined was not solely an act of vandalism, but an attempt at wiping out signs of the presence of entire populations, including their national and cultural identity.[1] In most UN peacekeeping missions, HLP rights usually do not play a very central role, even though land and property issues are often an underlying cause of conflict. Kosovo however, has been one of the few places where the UN has decided to give property restitution an important role in the peace-building process.[2]

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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.

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Beyond restitution: New book explores property rights and durable solutions for the displaced

by Anneke Smit

Anneke Smit is Assistant Professor in the Faculty of Law, University of Windsor (Canada), where she teaches Property Law. She has worked on displacement and post-conflict property issues for more than a decade, including in Kosovo with OSCE and in Georgia with a grassroots human rights NGO. She is the author of The Property Rights of Refugees and Internally Displaced Persons: Beyond Restitution, published this year by Routledge.

Recent posts in TN by Roger Duthie and Megan Bradley as well as Rhodri Williams, highlight the importance of transitional justice in bringing displacement to an end and encouraging processes of reconciliation. Yuliya Alieva’s post on the two decades of internal displacement in Azerbaijan is a critical reminder of the intensifying need to consider the full range of durable solutions – local integration and resettlement in addition to return, in particular in protracted displacements. These discussions reinforce the importance of post-conflict housing, land and property (HLP) restitution to contribute to these processes, but they are also reminders of the limitations of the current international legal framework.

Regular readers of this blog will be aware of the enormous strides which have been taken in the last decades with respect to post-conflict HLP restitution. The international legal framework on HLP restitution is since 2005 dominated by the (non-binding) UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (The Pinheiro Principles). Principle 2 of the Pinheiro Principles states in part:

2.1 All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived[.]

As such, the Principles prioritize restitution “in kind” (or in rem) as the preferred remedy to conflict-related HLP rights deprivations. Other remedies, including but not limited to compensation, are possible but these are clearly subordinated to return of the actual property. Since their inception, the Pinheiro Principles have been discussed and publicized widely. At first, it seemed taboo to criticize the Pinheiro Principles, given the substantial and hard-won contribution they made to a critical area of post-conflict justice and solutions to displacement. Recently, however, it seems the floodgates of criticism have opened.

Rhodri’s recent blog post on the UN high level rule of law meeting alluded to the place of HLP restitution within the framework of rights-based humanitarianism; in what I find a particularly compelling warning about that movement, Hugo Slim wrote a few years ago in a paper for ODI that “as a debate essentially concerned with a political, moral and legal framework, rights-based humanitarianism may never leave the paper and seminar rooms where it is debated and find the means to have a practical effect.” This is, of course, the crux of the problem with the Pinheiro Principles – they are a lovely piece of work on paper but one which in many cases has had trouble achieving a significant practical outcome. Much of the criticism seems to point to this question: are refugees and internally displaced persons (IDPs) actually better off for the existence of the Pinheiro Principles?

I am a pragmatist at heart, but one who does not believe we should throw the human rights baby out with the bathwater. In Beyond Restitution my critique is two-fold. First, I argue, through a discussion that includes consideration of the development of the rights to HLP restitution and return, analysis of a dozen post-conflict case studies, and consideration of the meaning of “home” in the context of forced displacement, that the desired results of return and reintegration could not have been expected to flow directly from Pinheiro-style restitution. Second, I take this analysis as a springboard to address how the post-conflict HLP framework might continue to develop in a way which more effectively contributes to durable solutions, without losing a necessary link to transitional justice and reconciliation. I outline two of my primary arguments here; the book of course treats them in more detail:

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UN High-Level RoL meeting to take up HLP issues … maybe

by Rhodri C. Williams

Last week, I had the pleasure of attending a seminar marking the tenth anniversary of Sweden’s government agency “for international peace intervention”, the Folke Bernadotte Academy (FBA). The topic of the seminar was rule of law (RoL) in general and this Tuesday’s UN conference on the issue in particular. The high level meeting at this year’s 67th session of the UN General Assembly is one of these periodic, frantic plenary meetings where all the states in the world along with a plethora of observers and NGOs culminate weeks of behind-the-scenes wrangling with (hopefully) the adoption of an outcome document that may push an important issue forward a few steps.

In the best case, the outcome will have legs even if the grandiosely named meetings themselves quickly fall into the obscurity of UN genealogy. Students are frequently bemused to hear that they failed to notice a “World Summit” hosted by the UN in 2005. However, few have failed to notice the resulting responsibility to protect (R2P) doctrine. And for those of us in the rights-based humanitarianism branch, the strong endorsement of the UN Guiding Principles on Internal Displacement buried in paragraph 132 of the Outcome Document may come to be seen as a pretty important step in the long march from soft law to opinio juris. But I digress.

Some of the talk at the FBA seminar was about the high-level politics of the high-level meeting, and particularly an emerging tendency to distinguish RoL as applied at the international versus the national levels. This has apparently been one of the key debates surrounding the drafting of the outcome document, with states that see domestic RoL as one of their own virtues more inclined to promote it to others (and the targets of their exhortations curiously more interested in the international variant). However, all indications are that there will be a buffet-style compromise, with both national and international RoL, as well as various ‘nexuses’ in between on offer.

This is perhaps most clearly evinced in the UN Secretary-General’s preparatory report for the conference, which proposes the adoption of a broad and often ambitious programme of action. Some proposals are simply unrealistic (states should ‘remove any reservations’ to UN treaties they have ratified, para. 12). Others are curious to the point of evoking typos (UN post-conflict RoL assistance should ‘promote gender’, full stop – para. 24). However, the overall feel of the document is quite sound, reflecting an increasingly emphatic accommodation of legal empowerment and economic/social concerns in an area of practice that arguably began as a bastion of orthodox civil and political imperatives.

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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.

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