“The Endorois decision” – Four years on, the Endorois still await action by the Government of Kenya

by Rebecca Marlin

Rebecca Marlin is currently the Legal Fellow at Minority Rights Group International (MRG) in London. She earned her B.A. from Wellesley College and her J.D. from Fordham University School of Law. During her time at MRG she will be working extensively with the Endorois to achieve implementation of the 2010 African Commission decision granting them rights to Lake Bogoria.

For the Endorois of Kenya’s Lake Bogoria, the process of reclaiming their land from the government of Kenya has been one step forwards and two steps back. In 2003, MRG and partner organisation Centre for Minority Rights Development (CEMIRIDE), acting on behalf of the Endorois Welfare Council, went before the African Commission on Human and Peoples’ Rights to demand that the Kenyan government recognise the rights of the Endorois to Lake Bogoria.

The Endorois had inhabited Lake Bogoria for over 300 years before being evicted by the government in the 1970s. In 2010, the Endorois won the landmark case Centre for Minority Rights Development and Minority Rights Group International (on behalf of Endorois Welfare Council) v Kenya. The land rights aspects of this groundbreaking decision have been discussed on this blog here and some of the regional implications here.

A pattern of empty promises emerges

Immediately following the Commission’s ruling in February 2010, the government of Kenya welcomed the decision, promising to begin implementation. A large celebration of the decision was held at Lake Bogoria; the Minister of Lands was in attendance and the momentous occasion was broadcast on television nationally. Kenya’s progressive National Land Policy had been enacted only a few months prior to the ruling and, with a forward-thinking new Constitution in the drafting stages, it seemed the decision might soon be translated into restitution of land, compensation, and benefit-sharing for the Endorois.

However, in May 2010, a report on implementation due to be submitted by the government of Kenya to the African Commission failed to arrive. Throughout 2010 and 2011, the government of Kenya failed to take any significant action on the recommendations. One MP openly challenged the Minister of Lands in Parliament about this delay in January 2011; the official response from the Minister was that he would not be able to take any action until he received an official sealed copy of the 2010 decision – despite the fact that the decision had been officially adopted and published one year earlier. A sealed copy was thereafter delivered to the Minister, but this did little to improve the situation.

When pressed on the matter, the government continues to affirm that it supports the decision and is taking steps to carry out the Commission’s recommendations. Yet, steps taken by the government indicate the exact opposite and new legislation on Lake Bogoria threatens to further separate the Endorois from their land.

Chilean court orders compensation for tsunami damages

by Rhodri C. Williams

Having apologized for their failure to protect victims of the Pinochet regime three decades ago, Chilean courts have now staked out a progressive position in responding to charges of government negligence that exacerbated the effects of the tsunami three years ago. According to the BBC, Chile’s Supreme Court awarded $100,000 to the survivors of Mr. Mario Ovando, who died as a result of a fatal blunder.

The court heard that following the earthquake, Mr Ovando had heard an announcement on the radio that there was no danger of a tsunami. On the basis of that he decided to stay in his home.

However, 20 minutes later his house was engulfed by huge waves. Although his relatives managed to free him and take him to hospital, Mr Ovando died three days later.

The Chilean Navy – which runs the Hydrographic and Oceanographic Service – admitted after the tsunami that it had made errors in its diagnosis and had given unclear information to government officials.

The government issued an alert, then deactivated it, then revived it only after the deadly waves had struck.

As described here in response to a UN report on reparations for victims of terrorism, the Chilean Supreme Court ruling fits into a recent pattern of establishing higher duties of care for state authorities in the face of events once written off as ‘acts of God’. And as noted by the BBC, the current case is likely to herald many more suits by other victims of the Navy’s faulty diagnosis. As such ‘pounds of cure’ accumulate in national and regional practice, one can only hope they will highlight the relative attractiveness of ounces of prevention.

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.

Chilean judiciary apologizes

In what the BBC has called an ‘unprecedented’ move, the Chilean National Association of Magistrates of the Judiciary has apologized for failing to protect the rights of those persecuted by the Pinochet regime in the 1970s and 80s. Coming just a week shy of the 40th anniversary of the September 11, 1973 coup that brought Pinochet to power, the judicial apology appears to come as part of a broader moment of reflection.

Although the executive branch and security forces clearly had the most to answer for at the time, it seems the judiciary played an entirely passive role:

The magistrates’ association acknowledged that the Chilean judiciary could and should have done much more to safeguard the rights of those persecuted by the dictatorship. It said the judges had ignored the plight of victims who had demanded their intervention.

Chilean courts rejected about 5,000 cases seeking help on locating missing loved ones abducted or killed by the authorities. Critics say their usual response was they had no information about their fate.

Such a judicial apology raises an interesting set of issues. Apologies are often seen as sensitive because even as symbolic acts, they can have material consequences. There is a fine line between taking moral responsibility for atrocities and taking legal responsibility for them and compensation claims are usually quick to follow.

For instance, the recent admission by the Farc in Colombia that it shared responsibility for the suffering that has resulted from its prolonged insurgency is seen as a prelude to wrangling over its liability to compensate victims in the ongoing peace negotiations with the Government.

However, apologies are usually issued by the executive or perhaps the legislative branch, with the consequences likely to be handled through the courts or administrative reparations programs. When a Court admits liability for violations in the form of systematic failure to provide remedies, what are the consequences of that? Its hard to imagine that the relatives of the disappeared turned away twenty years ago would be permitted to go back to those courts now in order to sue them.

It is also interesting to query whether this could lead to a trend. I suspect TN readers can think of other courts that may have failed to take the high road in the past or are neglecting to do so now. Any nominations for the next few judiciaries that should be getting in line for some sackcloth and ashes?

 

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.