by Rhodri C. Williams
Last week, I announced the publication of a new book on Displacement and Transitional Justice and provided an overview of some of the main themes touched on in my chapter on restitution in humanitarian and transitional justice contexts. My basic conclusions were twofold: First, that restitution has come to the fore in humanitarian practice not only due to its practical utility as a means of facilitating durable solutions to displacement, but also as part of the adoption of rights-based approaches by humanitarian actors. And, second, that restitution may actually be a more comfortable fit in transitional justice practice, given both the latter’s more direct concern with redressing violations (as opposed to ameliorating resulting vulnerability) and its political emphasis on sustainably transforming societies.
I wanted to return to these themes because I believe it is crucial to acknowledge the difficulty of drawing any tidy conclusions in any of these areas or even assuming that well-intentioned international forays into their post-conflict application are always effective. In fact, both transitional justice and humanitarian responses to displacement remain contested terrain, and one of the challenges in writing on restitution in this context was the need to deal with challenges to the legitimacy and effectiveness of both fields while describing a tactic for addressing past displacement – restitution – that has also become mired in controversy.
The whipsaw nature of these debates is exemplified by comparing recent commentaries on their fallout in Africa, and specifically Uganda. First, in a 2009 press release, the Refugee Law Project of Uganda’s Makerere University welcomes the recently adopted African Union ‘Kampala Convention‘ on internal displacement as “an important step towards clearly recognising the role of transitional justice in resolving forced migration situations”. The drafters of the press release made this connection in light of the Convention’s inclusion of reparatory measures meant to “take stock of the causes of and redress the violence of displacement.”
However, two years later, Makerere University visiting scholar Adam Branch wrote in Pambazuka to excoriate both concepts. While the earlier Makerere University press release and Branch’s later critique represent diametrically opposed viewpoints on the potential for international discourses to address local atrocities, I believe that they are also intimately linked. In essence, the Makerere statement represents the type of expectations – both realistic and unrealistic – that humanitarian responses to displacement as well as transitional justice measures tend to be burdened with. Branch’s article, by contrast, represents the tendency to dismiss both categories of measures when these expectations fail to be fully met.
This dichotomy of responses raises a number of familiar dilemmas. At a broad level, it invokes the risk that any international engagement always bears, namely that attention may be diverted from the primary responsibility of domestic actors to guarantee respect for human rights. Assuming that international engagement is unlikely to grind to a halt tomorrow over this moral hazard, a more practical dilemma involves how international actors and standards can make a positive difference without raising expectations that exceed their capacities, mandates and resources. In analyzing this question, it may be helpful to undertake a closer reading of Branch’s critique.
Branch begins by criticizing the process of ‘acronymisation’ by which ‘TJ’ and ‘IDP’ become reified categories “whose history and meaning is entirely under the control” of those who invented them. He goes on to make short shrift of the “TJ industry” which allegedly “landed like a giant marabou stork” in northern Uganda after the Lord’s Resistance Army (LRA) departed in 2006, and became fixated, ” staring at a specific episode from the past, while political exclusion and repression mount in the present”.
The IDP category, meanwhile, receives prolonged condemnation as an equally problematic mirror image of TJ that “occluded the reason for displacement – namely, a brutal government counterinsurgency –leaving it unquestioned, and turned displacement into something that was to be resolved, not through return home, but through technical humanitarian intervention to ameliorate IDP suffering.”
While much of Branch’s criticism rings true, there is at bottom a case of ‘damned if you do, damned if you don’t’. TJ is invalidated where the focus on retrospective ‘justice’ preempts attention to the pressing need (and demand) for a prospective ‘transition’. The IDP discourse is condemned for a relentless focus on prospective amelioration of suffering combined with a craven inability to retrospectively even identify (let alone tackle) its root causes. In theory, a case could equally well be made for mutual complementarity here – TJ looks backward, IDP response looks forward.
However, Branch’s most damning point is that this perspective entirely lets the government off the hook. Retrospective TJ focuses on the crimes of the LRA without devoting equal attention to the past – and ongoing – policies of the government. Prospective IDP response effaces the past “so that the violence and death that in fact resulted from the government’s policy of forced displacement was turned into a purely humanitarian problem to be solved by foreign aid agencies through their moral commitment to helping IDP victims of the LRA.”
As reflected by recent speculation in the Justice in Conflict blog about whether the Ugandan government’s ‘protected camps’ policy in Northern Uganda amounted to crimes against humanity or even genocide, it is clearly untenable to limit transitional justice scrutiny to LRA violations. Similarly, in light of the media frenzy surrounding Kony2012, Lucy Hovil queried on the Justice Matters in Africa blog whether the international community has not simply fixated on “the wrong transition”:
What if the transition in Uganda that needs to take place is not primarily about moving from conflict to peace but about moving from authoritarian rule to democratic governance – one of the ‘old-style’ transitions that started in the democratic transitions of Latin America and Eastern Europe, and was later transported to Africa? What if the war in northern Uganda (which has now subsided in Uganda but been displaced to neighbouring countries), and its anti-hero, Kony, are the sideshow, not the real event? And, most importantly, what if well-meaning attempts at deploying international criminal justice are not only misguided but are actually detrimental to the broader transition? With so much attention on Kony and the LRA (or what is left of it), it is vital that these wider questions continue to be asked.
Despite these concerns (and in full awareness of my own limitations, never having worked in Uganda), Branch’s wholesale dismissal of TJ and IDP response as depoliticized alibis for government rights violations nevertheless strikes me as too simplistic:
This discourse erased the reasons for displacement from the debate and externalized responsibility for dealing with displaced civilians to the so-called international community through aid provision.
The situation in Uganda is in fact reflective of a broader dilemma faced by humanitarian and TJ actors (among many others) in settings where sitting governments are both complicit in past violations and at least partly cognizant of their responsibility to address the effects. This is a surprisingly common post-conflict phenomenon, and one that raises both opportunities and risks. Even in the wake of conflict, ‘government’ is rarely a monolithic force, and there will frequently be both forces that are blind to human rights argumentation or opposed to its outcomes and those which are sympathetic (albeit as often out of pragmatism as conviction).
In such situations, international advocates are often limited to engaging in politics as the art of the possible by proxy. In light of the demise of executive peace-building missions and the new emphasis on ownership and a light UN footprint, international advocacy may come down to little more than identifying potentially responsive national actors and feeding them arguments and information that may help them prevail in national law and policy-making processes. Humanitarian response may involve the same dynamic at the level of a town, a province or an IDP camp.
In the case of the IDP discourse, however, these developments are entirely in keeping with the basic philosophy of viewing sovereignty as responsibility. From the beginning of IDP advocacy, the belief that only governments could provide sustainable solutions to displacement has fueled a capacity-building approach. Advocates have pushed on the doors that are open and supported pragmatic government actors by focusing on current risks that failure to address displacement could lead to future human rights violations (as opposed to the need to redress past violations that caused displacement).
This ‘realistic’ approach has been criticized as providing state violators with an alibi, but where no political will or legal mandate exists for a more forceful international intervention, it is hard to imagine any feasible alternative. However, it is unfair to criticize it as an international assumption of responsibility for IDPs; in fact, it is meant to be quite the opposite. However, Branch goes on to criticize the terminology of internal displacement as a further effacement of state responsibility:
… I don’t use the category of IDP except to critique it as part of the ideology of intervention in northern Uganda, an ideology that in fact helped enable forced displacement, sustain the war, militarise the state, and give rise to the humanitarian crisis. … I prefer to use the category of citizen, which serves to ground resistance both against the violence of the government in forcibly displacing its own people and the depoliticisation and complicity of Western donors and international aid agencies.
Here, again, Branch has missed the central (though admittedly subtle) rationale for insisting that the state must take the responsibility for humanitarian response. The IDP category is not a legal status like the refugee definition, which operates in cases where persecution and flight across borders have denied people of the protection of citizenship. Instead, it is a factual description of circumstances that render citizens vulnerable, providing both a rationale and an imperative for special measures from the state to end that vulnerability. As explained in the 2008 IDP Manual (page 4), for instance, the operative assumption triggering such a response is that IDPs are citizens:
While those displaced within their own country remain entitled to the full protection of rights available to the population in general, displacement gives rise to particular vulnerabilities on the part of those affected. Therefore, and in order to ensure that the displaced are not deprived of their human rights, states are obligated to provide special measures of protection and assistance to IDPs that correspond to these vulnerabilities in order to ensure that IDPs are treated equally with respect to non-displaced citizens.
Branch concludes his critique by describing international discourses such as TJ and IDP response as a means of circumventing, rather than engaging with the hard political work necessary to redress violations and prevent their recurrence:
In my work, I try to bring politics back in to understand a series of phenomena from which politics have been evacuated in dominant concepts and understandings: The war in northern Uganda; violence in Africa; humanitarianism; IDPs; peacebuilding; development; empowerment and capacity building; international law enforcement; R2P; human rights enforcement; traditional justice; and counterterrorism. By bringing politics back in, I hope that we can break mass forced interment – a war crime – and justice out of their ideological petrification in IDP and TJ, and perhaps use the latter to productively address the former.
Again, the politics are very much present, they simply are not the politics Branch likes. The problem is that many of the international concepts Branch lists began with high hopes and great ambition, and were founded on a widespread assumption that the international community can and must intervene where the state is unable or unwilling to stop human rights violations. However, experience has shown that these expectations will frequently be defeated, leaving both advocates and those directly affected by human rights violations bitterly disappointed. The question then becomes whether it is better to pursue them at all or simply throw one’s hands up.
In Northern Uganda, the idea that “we can break mass forced displacement” by political means may be received as a bit presumptuous. That is ultimately for the Ugandans to achieve, despite the formidable obstacles. What “we” can do is support such processes, often in incremental and indirect ways like by supporting rights-based humanitarian responses. However, Branch does make an important point in that political progress is clearly impaired where international discourses are entirely coopted by the state. Here Hovil concurs, raising important concerns about the nature of the ICC indictment of LRA leader Joseph Kony:
While the ICC and its international justice minders have never claimed to be anything more than part of the solution to the war in the north, it is important to recognise that in practice its involvement has fundamentally altered the parameters for promoting both peace and justice. As a result, the basis for the real transition that needs to take place – one that addresses the deeply embedded structural injustices that lay at the root of the conflict – has been somehow occluded by an overwhelming focus on a seemingly demented rebel leader. In reality, the rot that lies at the heart of current Ugandan governance structures has not only remained untouched by the ICC’s course of action, but has become further entrenched.
International engagement in places like Uganda is always political but rarely transformative on its own. It can support transformative trends or work against them, and it is crucial for international actors to be aware of these dynamics. However, just as sustainable responses to displacement can only come about as a result of the exercise of national sovereignty, viable political change can only come about through the exercise of popular sovereignty.