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.

Without giving too much away, this perspective let me go considerably further than my earlier cut at the topic in a 2007 ICTJ policy brief. My central observation was that the adoption of the Guiding Principles on Internal Displacement by the UN Human Rights Commission in 1998 represented a crystallizing moment in the steady march of human rights-based approaches to humanitarian action, and that the inclusion of property restitution (in Principle 29) epitomized both the opportunities and dilemmas this approach entailed. On one hand, how better to foster durable solutions for internally displaced persons (IDPs) than to point out the obvious? By classifying ‘arbitrary’ displacement as a violation of international law (Principle 6), the Principles elevated the return of abandoned homes from a practical necessity (in order to achieve durable solutions) to a legal imperative (in order to redress such violations).

On the other hand, Guiding Principle 29 represented a clear post-Cold War incursion onto ground that Cold War-era humanitarians had feared to tread. The new rights-based approach implied in principle that humanitarians needed to go beyond treating symptoms in order to address the underlying causes of suffering.  In the somewhat bloodless terms of the ‘egg model‘ of protection, humanitarians were not only to undertake familiar ‘responsive’ measures to stop and alleviate the effects of violations, but also consider what ‘remedial’ and ‘environment-building’ actions could address the causes of such violations and prevent their recurrence. However, Principle 29 set out such measures in practice, exhorting humanitarians to engage with some of the most politically sensitive and technically complex issues encountered in the wake of ethnic conflict. In this sense, it is distinguished as the sole Guiding Principle that adopts such a boldly retroactive – and reparative – approach to past violations underlying displacement.

The Chapter goes on to consider whether the transitional justice paradigm of reparations may not actually be better suited to property restitution, despite the latter’s clear link to the humanitarian aim of durable solutions. Most obviously, retroactive and ‘remedial’ actions to address past violations are a central concern in transitional justice, where they have played a more peripheral and controversial role in humanitarian action. Perhaps equally important, however, transitional justice is distinguished from broader human rights advocacy in that it pursues not only the aim of legal redress for violations, but also the parallel goal of facilitating a political transition to democratic accountability based on the rule of law. This latter goal entails an area of overlap with the prospective, ‘environment building’ goals of development assistance, and underscores the potential for transitional justice actors to take on board the concerns that development experts have raised regarding undifferentiated and overly strict application of rights-based restitution guidelines.

These are all timely themes in light of ongoing developments in regard to both durable solutions and reparations. On one hand, debates surrounding both the practicality and the legal force of a ‘right to return’  continue to smolder, as reflected in Howard Adelman and Elazar Barkan’s recent critique of attempts to return minorities into the teeth of hostile majority groups (reviewed here). On the other, the recent International Criminal Court (ICC) decision on victims’ reparations in the Lubanga case has been highlighted by both the Justice in Conflict blog and the ICTJ for the fact that it sets out a broad and inclusive approach meant to redress the harms of all victims of the impugned crimes, not just those that participated in proceedings. Although the Lubanga case focuses on allegations of child recruitment, the principles established regarding reparations will doubtless apply in future to cases involving crimes of displacement and dispossession.

With all this said, I would welcome any comments on my chapter, as well as a discussion of the broader themes raised in the ICTJ/Brookings book. I will shortly be posting another piece that fleshes out some of the themes discussed above based on the case of Northern Uganda. However, the big announcement is that the editor of the book, Roger Duthie, has kindly agreed to co-write a guest post along with Megan Bradley, of the Brookings Institution, who wrote the chapter on truth-telling.

See also:

Roger Duthie and Megan Bradley, Doing justice for refugees and IDPs? Confronting displacement through transitional justice (17 September 2012)

Rhodri C. Williams, Addressing injustice and managing expectations: Displacement and transitional justice discourses in Northern Uganda (30 August 2012)

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

  1. This is not at all within my area of expertise but I did read the chapter with great interest. In the 1990’s I worked for an international NGO here in Europe and my boss shared his experience with me. He was Polish by origin and fled Poland some 20’s years before for France. He left behind property which was, he said, turned over to someone else. He was not at all interested in restitution but he did believe he was entitled to some compensation. I don’t know if he ever got it but it did raise some interesting questions in my mind. Is there a time limit on such things and did he have any rights (moral or legal) having been dispossessed over 20 years ago? Would his heir have a right to something if he died before the situation was resolved? There was also the question of who would pay: the present owners of the property or the Polish government? Was there any mechanism in place for resolving issues like his in Eastern Europe at the end of the Cold War?

    I still don’t have answers to those question but your chapter definitely sparked my interest and broadened my understanding of the issues involved.

  2. Hi Victoria,

    Always good to hear from you! The rule in Europe is that redressing ‘historical’ property claims is generally a matter of political discretion. Bottom line is that property confiscations undertaken *after* a country has acceded to the European Convention of Human Rights will be reviewed by the Strasbourg Court for compliance with the rights to property and the home, but those taken beforehand are not subject to retroactive review.

    Only in cases where a state has voluntarily adopted a remedy for historical takings will the Court review its application in order to address claims of discrimination or procedural unfairness – as in the ‘Bug River’ line of cases that specifically involved Poland:

    Controversially however, these rules have not always been consistently applied, for instance in the Blecic v. Croatia case discussed in the below post (which describes resulting efforts to ensure that past wrongful confiscations are at least taken into account in political decisions related to European integration):

    The ultimate failure of European institutions to politically or legally address these issues in candidate countries such as Croatia has been underscored by findings that they constituted acts of persecution amounting to crimes against humanity by the ICTY:

    However, these concerns have more force in relatively recent and clearly wrongful confiscations related to the wars in the former Yugoslavia. Earlier nationalizations and other confiscations may have actually been fully permissible under human rights law at the time, at least insofar as they were not punitive or discriminatory (if you are really interested see my 2007 piece comparing Czech restitution with Bosnian):

    Nevertheless, some critics have maintained that the Court has gone to excessive lengths to dodge considering such cases. These critiques are described in a bit more detail in a recent paper I co-wrote on the Court’s approach to the Cyprus property issue:

    Finally, a good example of historical takings that are clearly wrongful is confiscations of Jewish property by the Nazis. It has been a long time coming, but there is now recognition that such property should in principle be restituted:

    A bit more info than you needed? 😉

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  4. Hi Rhodri,
    Wow! That’s perfect. Thank you very much. I’ve started to go through the links and I saw that you just published another post.
    So if I understand this correctly the EU court will not rule on confiscations that occurred before the country joined the EU? But if a country *wishes* to create a program to provide compensation/restitution for historical confiscations, the courts will examine those for fairness.
    An attempt to keep really old cases out of the EU courts?

  5. Well, the EU Court in Luxembourg generally doesn’t deal with these types of cases (at least not yet, but the last round of EU reforms may have some implications there), but there is a specialized European Court of Human Rights in Strasbourg that applies the eponymous European Convention in a much broader circle of states – the EU ones, perpetual non-candidates like Switzerland and Norway, the current candidate states and those out beyond the magic circle like Georgia and Azerbaijan – that belong to another European organization, the Council of Europe. The CoE is often seen as a gatekeeper of sorts, allowing candidate countries for the EU in and helping to tidy up their human rights and democracy credentials. Doesn’t always go according to plan, sadly:

    And yes, the Court’s jurisprudence is a very conscious attempt to keep these cases out but a principled one – based on the non-retroactivity of the actual human rights treaty commitments involved (you can’t hold them to what they hadn’t agreed to yet). Would be fair enough if the Court had managed to formulate an absolutely consistent and predictable rule for its application…

  6. Oh and there are some great blogs out there on the Strasbourg Court:

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