Article on HLP rights and durable solutions in GPC Digest

by Rhodri C. Williams

A short piece I wrote on the relationship between ‘housing, land and property’ (HLP) rights and durable solutions for displaced persons has been published in the Global Protection Cluster Digest, vol. 1/2014, and can be accessed in pdf form here. I have also added the last draft before final edits just below.

The thrust of the piece will be pretty familiar to any regular readers of this blog. I’ve been going on about the steady demise of the Pinheiro Principles and their exclusive focus on restitution (over other forms of reparation) for some time now. As precedents like the ECHR Demopoulos decision and humanitarian changes in tack like the IDP Durable Solutions Framework crowded in, it became ever more clear that a more balanced approach was justified.

Indeed, even before the spike in global displacement seen since 2011, growing awareness of the problem of protracted displacement had put local integration front and center in international discussions of durable solutions. Where displacement persists because return is not on the table, continuing to emphasize the future hope of restitution can distract both displaced persons and host communities from practical steps to ameliorate the here and now. Meaning that a more balanced approach was also necessary.

Happy Midsummer’s Eve – and World Refugee Day

by Rhodri C. Williams

Every now and then the various preoccupations of this blog collide in unexpected ways. Today is such a day. Sitting here on Åland, its the first day of my summer vacation and time for the rites of Midsummer Eve, a pagan celebration the observance of which is an important part of the local community’s sense of itself. It is a day of rootedness in traditions carried out on a particular piece of turf since time out of mind by people connected through the ages by language and a sense of cultural continuity and the simple fact of their abiding presence.

All of which makes the contrast with this day’s other guise so jarring. It is World Refugee Day and not just any such day, but the one that has seen the greatest spike in conflict-related displacement since World War II. As this village’s 30 families raise the midsummer pole tonight, over 50 million people in other parts of the world have been violently uprooted from their communities, their traditions, their homes and their lands. It is a truly grim milestone and one that will cast a shadow over this and many future midsummer evenings to come.

Chile and the unfinished business of justice and reparation

by Clara Sandoval

Dr. Clara Sandoval is a qualified lawyer and a Senior Lecturer in the School of Law at Essex University. She is the Director of the Essex Transitional Justice Network and Member of the Human Rights Centre as well as the Advisory Board of the Human Rights Clinic. She specializes on the Inter-American human rights system, transitional justice and reparations.

Forty years have passed since the coup in Chile and we are still waiting for justice and reparation for the majority of Pinochet’s victims. As a result of the dictatorship in Chile, there were more than 200,000 exiles, more than 38,000 survivors of torture (according to the Valech Commission) and roughly 3,000 persons subjected to enforced disappearance or extra judicial killings (according to the Rettig Commission).

Don Leopoldo García Lucero, his wife Elena and their three daughters are some of those victims. He was detained in 1973 in Santiago, passed through various detention centres (among them El Estadio Nacional, Tres Alamos and Chacabuco) where he was subjected to torture (physical and mental) and other cruel, inhuman or degrading treatment. In the summer of 1975 he was expelled from the country by decree. He arrived in the UK with his family as refugees. Since 1973 his life and that of his family has been on hold. He lives in London in social housing with his wife.

Chile has adopted important measures to deal with the legacy of mass atrocities, particularly in the area of reparation and memory, but most of them were for the benefit of the next of kin of those disappeared or killed. Meanwhile, justice (meaning the investigation, prosecution and punishment of the perpetrators of those crimes) and adequate, prompt and full reparation for torture survivors and their next of kin, those in exile and those victims who are both exiles and torture survivors remain an unfinished business.

Chile began its transition to democracy between 1988/90, and thirteen years later, in 2003, the Valech Commission was established to identify the survivor victims of torture, and only in 2004 some reparations were put in place to deal with the harm caused to torture survivors and their next of kin; these were primarily designed to provide redress to those living in Chile and not those in exile like Mr. García Lucero. In contrast, truth-seeking and reparation for victims of disappearances and killings took place just after the return to democracy at the beginning of the 1990s.

The investigation, prosecution and punishment of torture perpetrators remain a challenge in Chile. Very few cases are being investigated; the punishment of perpetrators is not proportional to the gravity of the crimes, and Chile lacks a specialized system (as it has for disappearances and killings) to investigate torture cases.

Furthermore, in Chile there are various obstacles to justice: the amnesty law remains in place (despite the judgment of the Inter-American Court in Almonacid Arellano v. Chile ruling it was contrary to human rights), and in particular, there is a law that decrees that all information that was collected by the Valech Commission remain secret for 50 years. However, this information is of extreme importance in the investigation of torture cases which occurred during the dictatorship given the difficulties to identify perpetrators without being able to cross-reference information with other persons who were detained in the same places and at the same time.

This is why the litigation against Chile in the case of Don Leopoldo García Lucero, his wife Doña Elena and their three daughters was important to REDRESS and to me as one of its lawyers. Victims, particularly torture survivors who are permanently disabled (like Don Leopoldo) and were unable to move on after what happened to them, and are in exile with their families, are extremely vulnerable people who have a right to justice and reparation, but face multiple barriers to making them a reality.

Coping with the realities of climate displacement: The Peninsular Principles

by Khaled Hassine

Dr. Khaled Hassine is an international laywer specialized in property restitution and mass claims procedures, who was part of the Peninsula Principles drafting team.

Though the linkages between climate change and displacement are complex and cannot entirely be predicted, the enduring debate about causality and path dependency seems somewhat derisive in light of the reality faced by many people around the world who are losing their homes and livelihoods as a result of climatic changes and their effects 

Climate displacement already is and will increasingly be one of the many ways in which affected populations adapt to their changed environment. Eventually, albeit belatedly, this actual fact was acknowledged in 2010 by the Cancún Adaptation Framework, which recognized migration, displacement and planned relocation as forms of adaptation to climate change.

The Peninsular Principles on Climate Displacement Within States are born out of a necessity to cope with this reality. The process was driven by people and communities claiming the protection of their rights in the wake of both large and small-scale threats from an increasingly hostile environment.

It is they themselves who felt that there was a pressing need to develop a normative, institutional and implementation framework. Displacement Solutions as an international non-governmental organization merely took on this grass root quest for guidance and solutions, and helped to facilitate and steer a process geared towards addressing the pivotal questions of climate displacement that concern people everywhere.

Syria is hemmorrhaging

As the Syria crisis reaches yet another crescendo, the UNHCR comes out with a really quite astonishing tweet:

2 million refugees There is no end in sight. #Syria is hemorrhaging.

— UN Refugee Agency (@Refugees) September 3, 2013

Whether born of calculation or desperate spontaneity, the composition of the thing effectively conveys a seasoned humanitarian agency that is on its knees in the face of unprecedented humanitarian catastrophe. It will be a hard act to follow. Lets hope it never needs to be.

For a glimpse of the pressure cooker life in a camp in Hatay province, Turkey, see Robin Yassin Kassab’s latest in Foreign Policy. The manner in which camp life produces hyper-compressed vignettes of the windy discourses we are all so familiar with now is striking – and worth quoting at length:

Part of the problem is Western fear of the opposition’s greatly exaggerated Islamist-extremist element. The irony is that the longer the tragedy lasts, the greater the empowerment of once minor and irrelevant jihadi forces.

Atmeh village, on a hill behind the camp, has been turned into a barracks for the foreign Islamist fighters of Hizb ut-Tahrir. These men are not, apparently, fighting the regime, but waiting for “the next stage” — in other words, the coming struggle between moderates and Islamist extremists after the fall of the regime. Syrians, including democratic Islamists, refer to them derisively as “the spicy crew” and shrug off the risk they represent. One assured me it would take “two minutes” to expel them once the regime falls.

But sectarian hatreds — stoked by the regime’s propaganda, its Alawite death squads, and assaults on Sunni heritage — are certainly rising. I met a man whose wife and 11 children were killed in an airstrike and who plans to marry again and produce 11 more children, “just so I can teach them to kill Alawites.” There’s a teenager who boasted, “Afterwards, we won’t leave a single Alawite alive.”

This deliberate attack on the social fabric is perhaps the regime’s greatest crime. When tyrants light the fuse of sectarian war, they are unleashing passions that extend beyond politics. They are killing people who have not yet been born.

Yassin-Kassab’s account is included in a recent list of articles on Syria recommended by Syrian activists. See also the Guardian here for a description of the effect of the conflict in neighbouring Syria – as well as dubious sectarian populism by the Turkish government – on the  mixed but traditionally tolerant population of Hatay province.

Meanwhile, for a refreshingly clear explanation of the dynamics behind the latest, mysterious wave of Syrian Kurd refugees that broke over Iraq two weeks ago (and which for UNHCR must have been the final straw), see Hugh Eakin in the NYRB blog.

And finally, a new Oxfam report, written together with the ABAAD-Resource Center for Gender Equality, shows that women refugees are both disproportionately represented in and impacted by displacement, going hungry to feed their families and facing heightened domestic violence.

Global conflict-induced displacement at highest level since 1994

by Rhodri C. Williams

During any given spring in the past, the release of the global internal displacement figures by the IDMC followed by the overall displacement numbers from UNHCR came as a malign one-two punch. Even in the salad days of the mid-2000s, the ostensibly ‘stabilized’ figures of around 25 million conflict-induced internally displaced persons (IDPs) and around 12 million refugees involved huge numbers by any count, staggering in their relentless accretion of human misery and broken lives. And all the more so as consciousness dawned of the rising tide of disaster displacement (and a studious silence about the additional millions uprooted by development projects persisted).

But with all that in our luggage, this year has been particularly bad. First came IDMC in April with the unwelcome news that conflict-related internal displacement (and by implication, the re-emergence of regional and internal armed conflicts) had been written off far too early. And now comes UNHCR pointing to 45.2 million deracinated lives at the end of 2012. Before you even count a further six months of rampant displacement in Syria, in other words, we see the worst overall conflict displacement numbers since 1994, the year the Rwanda genocide began and it seemed the Bosnia war would never end (and no one even had the energy to ask what was happening in the north and south Caucasus anymore).

Gird your loins humanitarians, it looks like we called it too early.

Report on property issues and displacement in Libya for UNHCR

by Rhodri C. Williams

Toward Tajoura, March 2012, picture by the author

Many TN readers will be aware that I spent the better part of last Spring working for the UNHCR on a report on housing, land and property (HLP) issues related to displacement in Libya. The research involved interviews with numerous internally displaced persons (IDPs), many of the officials directly or indirectly responsible for their welfare, as well as civil society activists and legal experts. The work was undertaken throughout the north of the country, including Tripoli, Misrata, Benghazi, Sirte, Ajdabiya, Tiji, Nalut, Yefren and Kikla.

The resulting report was published earlier this Fall and includes both immediate term recommendations for humanitarian programming and longer term observations on how the process of seeking durable solutions for Libya’s displaced relates to broader dynamics of transitional justice, rule of law reconstruction and sustainable development. Accordingly, those of you who have read my earlier short piece on HLP issues in Libya will find many of the themes introduced there greatly expanded upon here. 

The report goes into some detail and is not a light read at nearly 100 pages. The Executive Summary is a bit more manageable at 15 pages and closely tracks the four part breakdown of the full paper. However, in order to help TN readers get a quick overview of the main points in the paper, I have further compressed the summary down to about five pages, reprinted just below.

A great deal of credit is due to the UNHCR country office in Libya, and particularly to Senior Protection Officer Samuel Cheung, for recognizing early on the need to understand the nexus between property issues and displacement in Libya. The UNHCR also proved farsighted in providing a mandate not only to examine the humanitarian implications of property disputes, but also to extend the analysis to take in concerns related to transitional justice, rule of law and development.

Since its local release last Fall, the report has supported efforts by both national advocates and international observers to ensure that outstanding property questions in Libya are resolved in accordance with international standards. Such efforts will be crucial to achieving an end to the ongoing and protracted displacement of entire communities collectively punished for their imputed support for the Gaddafi regime, and thereby achieving meaningful national reconciliation.

The report also underscores the need for more research and further analysis in order to ensure that the resolution of HLP issues is based on Libyan realities as well as international standards. There have been some very promising signs on this front, including the inclusion of a study on property and housing issues in a broader project related to strengthening rule of law institutions in Libya run by the Hague Institute of Global Justice, as well as plans to shortly include an updated property rights profile of Libya in USAID’s land tenure country profiles series.

In sum – this paper represents a first stab at a complex issue that is crucial to Libya’s future. I am grateful to the UNHCR for giving me the opportunity to participate in this process and look forward to any comments and feedback from TN readers.

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.

From shelter to housing: New NRC report on tenure security and displacement

by Rhodri C. Williams

The Norwegian Refugee Council (NRC) just released a substantial study I wrote for them on the right to security of tenure and how it relates to interim shelter needs and long-term durable solutions for both refugees and internally displaced persons (IDPs). It is a long read, but I would recommend it to those interested in these topics as my most comprehensive attempt to date to articulate the legal and policy dynamics of this important emerging area of humanitarian practice.

The background analysis in the study picks up on themes I developed earlier with regard to Liberia (also for the NRC), as well as Serbia (for the Brookings Institution) and Iraq (for the US Institute of Peace). These include the need for humanitarian actors to continue their engagement with both human rights and development discourses related to access to housing and security of tenure. The nexus with human rights emerges clearly from the moment of displacement, given the increasing trend (as reflected in the Sphere Standards) toward aligning humanitarian shelter provision with the human right to adequate housing. In accordance with commonly accepted understandings of this right, this means that even transitional shelter should meet basic standards of adequacy and be provided in a manner that ensures an appropriate level of tenure security to its occupants.

Meanwhile, the nexus with development standards relates to the insight that an increasing number of both refugees and IDPs find themselves in situations of protracted displacement. As a result (and as described in my earlier study on Serbia), measures to provide interim shelter solutions for displaced persons may quickly take on a de facto permanent character, and should often be planned with this eventuality in mind. This implies that pro-poor urban development standards (such as those developed by UN-HABITAT) should be applied wherever possible to allow the community-driven upgrading of IDP and refugee settlements. It also implies that development standards regarding involuntary resettlement should complement human rights standards in guaranteeing legal security of tenure for the displaced.

In the current NRC study, the case studies chosen related to Palestinian refugees in Lebanon as well as IDPs in Georgia. Application of the relevant standards on tenure security is difficult in both cases, but for entirely different reasons. In the case of Lebanon, refugees do not (unlike IDPs) enjoy a right to seek local integration as a durable solution. However, the particular political sensitivities in Lebanon have led to a situation in which efforts to prevent local integration have led to restrictions in areas such as access to housing that cannot easily be reconciled with the country’s international obligations.

In the case of Georgian IDPs, there has been a determined and ambitious effort to facilitate integration in a manner that does not foreclose the eventual possibility of property restitution and return. However, significant complications have arisen in part because this program has been aligned with a broader attempt to privatize state-owned property. This has led to some some difficulties in a program to allow IDPs to buy the shelter allotted to them in buildings subject to privatization as well as questions regarding what can be done for the large proportion of IDPs still sheltered in private accommodation.

It is important to recognize the initiative of the NRC, and particularly its Information, Counseling and Legal Assistance (ICLA) program, in driving these issues forward. The ICLA program has in many respects led the way in terms of seeking effective property remedies for the displaced in the field, and have now pivoted quickly to address new concerns related to tenure security where such remedies are not forthcoming. As always, I benefited a great deal from the insights and hospitality of my NRC colleagues while preparing this report, and it is my fond hope that some of them will guest-post on TN soon with both updates on the specific case-studies covered in the report and comments about their other ongoing initiatives in the area of housing, land and property rights.