Tag Archives: transitional justice

Breaking news – Gotovina and Markač convictions overturned (UPDATED)

Update 19 November 2012: I am very grateful to Mark Kersten at the Justice in Conflict blog for inviting me to expand upon the below piece and guest post it there. For a fuller treatment of the issues arising from last Friday’s Gotovina judgment, readers are therefore referred to my post at Justice in Conflict, entitled “The aftermath of the ICTY’s Gotovina Trial: Due process and Historical truth“.

by Rhodri C. Williams

In April 2011, Trial Chamber I of the International Criminal Tribunal for the former Yugoslavia (ICTY) convicted two Croatian Generals, Ante Gotovina and Mladen Markač to lengthy jail terms for their parts in planning and carrying out ‘Operation Storm’, a 1995 offensive that resulted in the flight of 250,000 Croatian Serbs. Today, in what has been described as “one of the most comprehensive reversals of the tribunal’s 19-year history”, the Appeals Chamber eviscerated the Trial Chamber’s findings and ordered the immediate release of both defendants.

This shock reversal is likely to generate intense legal and political debate, with Serbian Prime Minister Ivica Dačić having immediately claimed that it confirms that the ICTY is “not a court” but rather “fulfills pre-determined political tasks.” According to the summary read out in court this morning, the Appeals Chamber accepted the defense’s key arguments, first that the shelling of four Serb-held towns at the outset of the offensive had not been unlawful, and second, that absent unlawful shelling, the Trial Chamber’s finding of a ‘joint criminal enterprise’ (JCE) to permanently remove the Serb population of the region could not stand.

As described in TerraNullius at the time of the Trial Chamber decision, the finding of the existence of a JCE by the Trial Chamber allowed the defendants to be imputed guilt for a range of discriminatory actions and policies that accompanied the offensive including the ex lege cancellation of urban-dwelling Croatian Serb refugees’ rights to their ‘socially owned’ apartments. As set out in the summary of today’s decision (page 4), the rejection of a JCE removed this link:

With respect to liability via JCE, the Appeals Chamber observes that the Trial Chamber’s conclusion that a JCE existed was based on its overall assessment of several mutually-reinforcing findings, but the Appeals Chamber, Judge Agius and Judge Pocar dissenting, considers that the Trial Chamber’s findings on the JCE’s core common purpose of forcibly removing Serb civilians from the Krajina rested primarily on the existence of unlawful artillery attacks against civilians and civilian objects in the Four Towns. While the Trial Chamber also considered evidence concerning the planning and aftermath of the artillery attacks to support its finding that a JCE existed, it explicitly considered this evidence in light of its conclusion that the attacks on the Four Towns were unlawful. Furthermore, the Trial Chamber did not find that either of the Appellants was directly implicated in Croatia’s adoption of discriminatory policies.

When the dust settles, it may well turn out that the Trial Chamber went too far with its JCE finding and that the Appeals Chamber was right to tighten the scope of the inquiry to focus on what criminal acts could be directly and unambiguously attributed to the defendants in this case. On the other hand, few serious observers doubt that the highest political and military leadership in Croatia at the time would not have lost much sleep if not one Serb had ever returned to the region. However, as one might fear, the Court’s narrow ruling on General Gotovina and Markač has quickly been read as a blanket vindication of Croatia’s conduct and aims during its 1991-95 war. As reported in the Guardian:

Gotovina’s defence lawyer, Greg Kehoe, said the appeal verdict demonstrated that Croatia’s Operation Storm in 1995 to regain control over the last Serb-run enclaves on its territory had been entirely legitimate under international law.

“This judgment vindicates that operation as a proper and just attempt to bring back that land into Croatia. More importantly, it vindicates what kind of soldier General Gotovina was,” Kehoe said.

At a broad level, the Gotovina case may hold the same lessons on the limitations of international criminal law that the European Court of Human Rights’ Cyprus cases have demonstrated with regard to human rights law. Litigation inevitably and necessarily disappoints by applying a zero-sum approach to complex historical problems in which all parties have almost always been cast both in the role of victims and victimizers. To treat Gotovina 2 as an absolution of Croatia’s well-documented sins is patently absurd and will only complicate the way to a long overdue regional reckoning with the past. Ultimately, Croatia can only legitimise its own narrative of victimhood by recognising the validity of those of its victims.

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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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.

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Land, property and displacement in post-revolution Libya

by Rhodri C. Williams

An earlier version of this text was submitted to Forced Migration Review for its newly released Issue 39 on “North Africa and displacement 2011-2012”. The article has been published there in a shorter version. I can recommend the entire, highly topical magazine and am grateful to the editors for their permission to publish the longer version of my piece here.

By post-conflict standards, Libya has a relatively small population of about 70,000 internally displaced persons (IDPs). However, as a result of basic security concerns, many individual IDPs – as well as several entire displaced communities – face the prospect of protracted internal displacement. Despite national and local efforts to foster reconciliation, return will not be a realistic prospect for many until after the national elections currently scheduled for July. Inability to access pre-displacement housing, land and property (HLP) assets poses a significant obstacle to the achievement of durable solutions for almost all IDPs.

However, there is significant variation in the nature of the HLP problem. For households that remain displaced within their own communities due to the wartime destruction of their homes, durable solutions are largely contingent on reconstruction. However, for IDPs displaced outside of their places of origin, inability to access pre-war homes and properties is merely a symptom of the broader insecurity that has blocked virtually all return to date. In most cases, IDPs also face significant tenure insecurity in their current locations, whether they are in collective settlements or private accommodations.

Lurking behind both the tenure insecurity currently facing IDPs and their difficulties accessing pre-war property is a much broader question related to the sweeping and arbitrary redistributions of property undertaken during the forty-two year reign of Libya’s ex-dictator Muammar Ghaddafi. These waves of confiscation and partial compensation undermined the rule of law and sowed the seeds of corruption and legal uncertainty that continue to affect nearly all sectors of society in Libya. While these acts are largely viewed as illegitimate by the interim National Transitional Council (NTC), there is broad recognition that any peremptory attempt to revoke them would risk destabilizing the country.

As a result, these ‘legacy’ property issues are unlikely to be definitively resolved until after the upcoming elections, in the context of democratically-grounded legislative and constitutional reforms. From this perspective, the HLP question in Libya must be seen not only through a humanitarian lens, but also from the perspectives of transitional justice, national reconciliation, rule of law and economic development. While IDPs – and some refugees in Libya – may be disproportionately affected by this question, almost every constituency in the country has a stake in its outcome.

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Pinheiro and the political philosophers: Achieving justice through post-conflict property restitution

by Christopher Thornton

All legal principles seek, at least in theory, to advance some form of justice. Justice is not however an axiomatic concept; it is highly context-specific and ambiguous. When we are attempting to codify and promote legal norms we cannot afford to fall back on Justice Potter Stewart’s “I know it when I see it” test. Rather we must rigorously interrogate whether a particular legal norm advances justice and under what conditions. This post will attempt a preliminary exploration of the justice of property restitution. It will examine the philosophical paradigm that forms the basis of this “right” and consider how property restitution looks through different philosophical lenses.

Paolo Sergio Pinheiro, the godfather of the right to property restitution in the form of the ‘Pinheiro Principles,’ refers to this right as a “key component of restorative justice” (Principle 2.2) What exactly is meant by “restorative justice”? Restorative justice is a judicial approach that aims to foster reconciliation between conflicting parties. It does not seek to apportion blame but rather to find solutions that allow the parties to both feel that, as justice has been delivered, they can re-establish their relations on a normal footing. Mediation and other flexible problem-solving approaches are characteristic of restorative justice. Restorative justice approaches are particularly useful in post-conflict situations, where the dichotomy between perpetrator and victim is seldom self-evident.

The notion of a right to property restitution, at least strictly interpreted, does not conform to the usual definition of restorative justice. A right to property restitution, and perhaps more broadly an unconditional right to anything, eschews problem-solving approaches and encourages total disregard for the views of the other concerned party. There is little space for a negotiated solution where one party feels they have absolute rights and are absolutely right. I believe that Pinheiro’s use of the term “restorative justice” is misguided, perhaps a result of a conflation of “restorative” with the verb to restore: “to return (something lost, stolen etc.) to its owner”.

It would be more accurate to describe property restitution as a form of corrective justice. Corrective justice finds its philosophical roots in Aristotelian ethics. What matters for a just solution in Aristotle’s eyes is that corrective action is taken to return the situation to the status quo ante. Aristotle describes this as equality: “the just … consists in having an equal amount before and after a transaction.”[1] Property restitution aims to restore a person to the state they were in before the ‘transaction’ took place, i.e before their displacement and subsequent loss of their property, and thus evinces a corrective justice approach to the problem of post-conflict property disputes.

Aside from the practical problems created when more than one “transaction” has taken place (necessitating a chain of corrective actions, which, in some post-conflict situations, has made property restitution programmes look like a game of “musical chairs” in Cox and Garlick’s words), the main problem with this conception of justice is that it presumes the status quo ante was just. Putting aside the question of whether forced displacement is the “right” way to address unjust distributions of property (which I don’t think it is), how do we decide whether a particular person was justly entitled to their property (and by extension, unjustly deprived of it)?

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Look before you legislate? The challenges facing restitution in Libya

by Rhodri C. Williams

It seems that plans are now afoot in Libya for a full-scale program of restitution of properties nationalized and appropriated under the Ghaddafi regime. Bloomberg reported yesterday that a law envisaging a two phase process will be rolled out as soon as next month:

Libya will announce a law that will return land and buildings expropriated by late ruler Muammar Qaddafi to the original landowners “within weeks,” a senior member of the Land Ownership Committee said.

“Phase one will return unused lands, empty shops, buildings and villas taken by Qaddafi’s regime and then by the rebels to the rightful owners,” said Fawzy Sheibany, legal representative for the committee, in an interview in the capital, Tripoli. “This will mean millions of dinars can be invested in construction projects and provide employment.”

Phase two of the new law involves rehousing families residing in buildings on expropriated land and could take several years to implement fully, he said. The Ministry of Justice will deal with individual cases through a civil court.

On the face of it, there is every reason to welcome this development. The Ghaddafi-era expropriations were ostensibly meant to further public purposes but became, by all accounts, an arbitrary means of both punishing enemies and rewarding those the regime favored. Moreover, the resulting legal uncertainty in property relations was cited (in 2004) by a leading Middle Eastern law firm as a key structural obstacle to legal reform efforts during the run-up to the uprising:

As a result of abolishing real property ownership for investment purposes, the commercial real estate market has been completely distorted. There exists now a private land market and a public land market with a price gap that creates considerable uncertainty for both foreign and local investors. Compounding the problem, the [1997] Foreign Investment Law is not clear as to whether real property can be used as collateral or even can be freely transferred without government approvals. The government has announced plans to reform the laws governing property and rentals, but their scope is uncertain.

Finally, perhaps the most convincing ground for pushing for quick legislative measures is the need for the National Transitional Council (NTC) to be seen to lead from the front. In the wake of Amnesty International’s widely publicized allegations of human rights abuses by ‘out of control’ militias in Libya, anything the NTC can do to stamp its legitimate authority on matters of broad public interest appears welcome. In fact, this is a particularly important issue in regard to property. Recent reports such as this one by the Guardian indicate that the militias have become part of a pattern of spontaneous restitution, often carried out by means of violent self-help.

So what, one might ask, is not to like in a bill that serves not only justice but also economic development and political consolidation? The answer is that if it is rushed through without consultation, this bill may actually have the opposite effect, generating new cycles of grievance, reducing legal certainty and even undermining the authority of government in Libya if it proves impossible to effectively and consistently implement. Perhaps the most cogent argument for a deliberative approach to restitution for the prior regime’s confiscations is that this is to some extent a constitutional decision rather than merely a legislative one. Continue reading

With me or against us? The Economist mourns the passing of the rugged individual right

by Rhodri C. Williams

A common problem with minority rights is that their necessity is not always self-evident for the people in the majority, who, as we all know, get to call most of the shots in a democracy. This is most problematic in situations where minorities find themselves inconveniently present in countries that have staked a good deal of their credibility on not having minorities, such as newly consolidated and politically fragile post-colonial states or France. However, it may also raise issues when well-intentioned outsiders turn up and start loudly wondering what all the fuss is about.

Before I cast any aspersions on the Economist, I might as well clear my own conscience. Minority and indigenous rights are complex and contested terrain for minority and indigenous peoples, let alone suburban white Americans. Whatever insights living as an expat in the Swedish-speaking Åland archipelago of Finland may have given me, I am still only really in an intellectual position to assess the issue not an intuitive one. This can result in misunderstandings.

In the year since TN was born for instance, I have come to realize that (1) the tag ‘indigenous groups’ may not please a readership that may include some ‘groups’ that have spent the last thirty years struggling to be recognized as ‘peoples’, and that (2) the name of the blog will be received by some right-minded Australians as a hair less offensive than calling it ‘ApartHeid’ would be to South Africans. The point being that perhaps the first duty of the well-meaning outsider is to seek to attain more than a  superficial understanding of the situation they will inevitably influence through their statements.

Sadly, I’m not really so sure that the latest Economist take on group rights meets this test. The article in question, ‘Me myself and them‘ (May 14, 2011), generates a bit more heat than light in its discussion of this complicated topic and links its conclusions somewhat debatably to the fate of the Arab Spring. To paraphrase their argument:

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Week in links – week 15/2011

Apologies to TN readers for having been a little incommunicado in the last days! Have been too busy to even chase down some interesting guest postings that are in the works, let alone write, but I hope to pick up the pace again in the next weeks. Lots of interesting items out there in the HLP-related world as usual:

First, on womens’ land rights, the Landesa blog includes an interesting piece on the recent ‘revolution’ in Bengal that resulted from the inclusion of an extra line allowing registration of land grants in both spouses’ names. Earlier this month, the fourth Women’s Land Link Africa (WLLA) Land Academy was held in Arusha, Tanzania, with participants from fourteen African countries.

The Financial Times reported on the land issues now awaiting the attention of Ivory Coast’s new President Alassane Ouattara, now that the technicalities of the succession appear to have been resolved. As anticipated in Barbara McCallin’s earlier guest-post and report, both the technical and political obstacles will be sobering:

Some immigrants – many of whom have now lived in Ivory Coast for decades – have been thrown off their farms and may now want to return. This is a delicate issue for Mr Ouattara, and risks further alienating Mr Gbagbo’s supporters – those who already see the president-elect as a foreigner who favours immigrants. “He can’t be seen as someone who wants to take away the land from the indigenous groups,” the analyst added.

As documented in the report on a recent seminar held by Swedish Water House, the Swedish Government has come around to the notion of a human right to water after a surprising amount of circumspection (compared to peers such as the UK, which took the plunge in 2006). While Sweden is undoubtedly a progressive country, it has for various reasons been historically reluctant to consistently express this outlook in a vocabulary of rights. The official justification given for the delay in this case is somewhat lame – if everyone waited for the results of contradictory and bumbling UN processes instead of pushing them along, who knows where we would be right now. But the apparently enthusiastic embrace of this right by a key player in the water business is more than welcome.

The ICJ case pitting Georgia against Russia that I blogged on earlier here has been dismissed without examination on the merits. For a good analysis of the reception of this news in Georgia and Russia, see this recent piece in Opinio Juris. Presumably, the rather innovative interim measures previously ordered by the Court to protect the property of displaced persons have lapsed as well. More jaded readers may be tempted to wonder whether anyone on the ground will notice… (UPDATE – a bit more analysis by Marko Milovanovic at EJILtalk)

Finally, as if you didn’t have enough to peruse, the Forum for International, Criminal and Humanitarian Law has published a 440 page door-stopper of a book on ‘Distributive Justice in Transitions‘. It focuses heavily on land issues, with lots of case-studies on Colombia, and looks to be a fascinating read.

Happy Easter – and good on the Serbian Parliament

Just a quick administrative note to say that I will be departing this afternoon for a long Easter weekend in my wife’s ancestral village in the Åland archipelago in Finland. Pending further arrangements with our phone carrier there, I will be safely outside the blogosphere, so please don’t expect any new posts until early next week.

In the meantime, I thought it might be worth giving the Serbian Parliament its due for issuing a resolution condemning the 1995 Srebrenica massacre in Bosnia. Although the text of the resolution does not yet seem to be available in English, lots of interesting reports are new available, including by the NY Times, Euronews (with video) and the European Voice (by an old friend, Toby Vogel).

There is, of course, plenty to find fault with. It took long enough, came at a convenient time (now that Serbia safely dodged the bullet of a finding of liability for genocide in the 2007 ICJ decision in Bosnia v Serbia), and has not yet been accompanied by the handover of Ratko Mladic, who is accused of engineering the massacre and rumored to still be in hiding in Serbia. The good legislators also failed to find the strength to refer to the “g-word” itself, despite established judicial precedent on this point. Moreover, as the odious Radical Party pointed out, the resolution would probably not have come about unless as a result of international pressure.

On the other hand, what of it? International pressure is not always a bad thing, and this comes as another example of the very real soft power the EU accrues by means of remaining committed to the enlargement process. And Ratko must certainly be counting time; the fact that the earlier arrest and handover of the more charismatic (well, to some) Radovan Karadzic did not bring the heavens crashing down on Belgrade testifies to that.

And finally, conditional and caveated as it may be, this is an on-the-record apology of the type that many countries continue after decades to waste time, energy and political capital resisting. It is a milestone and one that cannot have been easy to achieve. When I consider the hysterical reaction the US has witnessed to the passage of a relatively innocuous piece of domestic  legislation on health care reform (see Frank Rich in the NY times, here), I begin to appreciate the difficulty Serbian parliamentarians face – as the representatives of constituencies conditioned by fifteen years of denial – in stating before the world that their country had been complicit in one of the most loathsome acts of post-Cold War history.

Evo, svaka čast i neka bude mir.

Restitution comes to Hamtramck, Michigan

by Rhodri C. Williams

Yesterday’s New York Times reports on a case of restitution in response to a discriminatory pattern of wrongful evictions carried out beginning in the 1950s and 60s. Lake Bogoria, Kenya? Northern Iraq? Nope. Hamtramck (“pronounced ham-TRAM-eck”), Michigan, just outside Detroit.

By the Times’ account, Hamtramck is a rather independent little place that refused incorporation with the metropolis that now fully surrounds it. It is also a former Polish enclave, which now, despite having become one of the most diverse neighborhoods in the Detroit area, is still busy counting down to this year’s “Paczki Day”, featuring “polka music from Misty Blues, traditional Polish dancers, the Paczki Toss, the “Paczki Express” Historic Bus Tour, a visit from the Detroit Tigers’ mascot, Paws, and much more.”

Finally, it is also one of many American cities that used urban renewal and highway construction as a means of obliterating black neighborhoods in the 1950s and 1960s, atomizing communities, fueling the cynical practice of racial “block-busting” and ultimately driving white flight to the suburbs.

In Cincinnati, Ohio, another mid-western burgh, I grew up in the safety of the ‘burbs without ever considering the strangeness of the fact that the poor black neighborhood north of downtown went by the distinctly teutonic moniker of “Over the Rhine” or questioning why the entire western quadrant of central Cincinnati had been given over to a monstrous tangle of freeways.

It was only later, in college, when I bent my newly minted skills as an urban geography major to analysis of my hometown that I realized the design behind these seemingly random phenomena. The freeways had replaced the West End, a thriving mixed-income black neighborhood, whose uprooted residents were scattered as promised replacement housing fell far short of needs. The arrival of black families into neighborhoods like Over the Rhine was, in turn, used by real estate brokers to put greater urgency into the migration of fourth and fifth generation German immigrants and other whites to the suburban sprawl at the edge of town.

The cynicism and waste of it all was a revelation, as was the fact that my formative years had been spent in the midst of the resulting tensions and contradictions without me – or any of my peers that I can recall – having ever really questioned them. It was the late eighties then and we were still a few years shy of the great international bloom of what would eventually come to be known as transitional justice initiatives, but my experience with Over the Rhine helped to shape my own sense of the subtle but tenacious grip the past has on the present.

But back to Hamtramck: a remedy for black families displaced under the guise of urban renewal was ordered by a federal court in 1971. Despite a finding that the city had followed a clear strategy to remove blacks, the decision itself became the object of further politicking over the next two decades, according to an AP article published in January:

In 1971, after a three-week trial, a federal judge said Hamtramck had a clear strategy when it demolished housing in poor neighborhoods. Blacks were 14.5 percent of Hamtramck’s population in 1960, but only 8.5 percent six years later, noted Damon Keith, now a judge on the 6th U.S. Circuit Court of Appeals.It took until 1980 for all sides to agree to a solution: Two hundred family housing units, as well as 150 units for senior citizens, would be offered at below-market rates to black plaintiffs in the lawsuit. It didn’t take long to build the senior housing, but construction on the rest didn’t start until 2004.

“Attitudes, funds and skills were the three missing ingredients,” said Michael Barnhart, attorney for the victims. “The city was still fighting it. Secondly, they didn’t have the money. Hamtramck was in and out of state receivership.”

The city’s current lawyer, James Allen Sr., agreed.

“This litigation was used as a political wedge issue. The us-versus-them mentality kept people in political office,” he said.

That changed when Gary Zych became mayor in the late 1990s. He said resolving the discrimination case was a moral issue as well as a practical one. Hamtramck couldn’t develop vacant land for other purposes until it built the subsidized housing.

It has been a long time coming, but restitution is currently well underway in the teeth of the financial crisis, with 100 homes completed for rental or sale and the rest slated for completion within the year. The remedial program also follows a lot of what would elsewhere be called transitional justice best practices. For instance, where direct victims have died since the case was brought, their children and grand-children are entitled to move into the new housing in their stead. Implementation of the program has also been assisted through consultative processes brokered by civil society actors including fair housing advocates and local clergy. And, perhaps most important, delivery of the houses has been accompanied by genuine acknowledgment of the harm that was originally done through the clearances. As reported in the Times:

Just weeks ago, [displaced former resident] Ms. Sanders moved into a new ranch-style house on the same street where her family once lived, and Gov. Jennifer M. Granholm personally handed over the keys. As a young lawyer, Ms. Granholm was a clerk to Judge Keith [who issued the 1971 decision] in the late 1980s.

“We went full circle, and it’s pretty wonderful,” said Ms. Sanders, whose parents, now dead, were among the 250 plaintiffs who sued the city. “To acknowledge that, O.K., they were wrong, that gives me a little satisfaction because my parents were mistreated so. I just wish they were here to see it.”

Restitution in Hamtramck stands out both for the fact that it happened at all and for its isolation. Urban renewal and highway extensions were commonly used to clear black neighborhoods in the decades after World War II, but Hamtramck appears to represent the only judicial challenge to this practice that was brought to fruition. If it were to be taken as a nationwide precedent, the implications for municipal governments across a broad swathe of the midwest from Cincinnati to Syracuse would be significant (to say the least). From a legal perspective, the statutes of limitation for such suits have surely long since run, whatever arguments one might make about the capacity of the victim to bring suits at the time of the violations. Again, from the Times:

The home building is also what experts call a bittersweet finale to one of the longest-running housing discrimination suits to weave its way through court, having begun in the civil rights era. Beyond its age, the case is also distinctive in that it happened at all. While Hamtramck may be an extreme example, experts said housing discrimination against blacks in the mid-1900s was common, but class-action lawsuits were rare because of their expense and complexity.

However, from a social perspective, the Hamtramck decision, along with its belated acceptance and implementation, stand as another reminder of the fact that Americans, even in the age of Obama, still do not benefit from a completely level playing field. The opportunities of my white suburban classmates were shaped by the mobility their ancestors had enjoyed to move out of neighborhoods like Over the Rhine to suburban areas with well-funded schools and subsidized highways. Meanwhile, the opportunities of many black teenagers of my generation were crimped by policy decisions and commercial practices that destroyed the viable neighborhoods built by their grandparents and barred them access to better ones.

Given the American allergy to being described by the human rights concepts we were instrumental in developing, it wouldn’t do much good to talk about transitional justice. And anyone who turned up in Hamtramck with a copy of the Pinheiro Restitution Principles would probably end up at the wrong end of the annual Paczki Toss. So, in more American terms, it is at least satisfying to see justice done in Hamtramck and know that even if the settlement there will bring no material benefit to the thousands of families uprooted in other mid-western cities two generations ago, it may at least bring a degree of acknowledgment.