Reparations and transitional justice

Gross human rights violations are a common feature of contemporary conflicts and often a direct cause of displacement. Human rights abuses take various forms, including forced migration, violence against the physical or mental integrity of civilians, the deprivation of land and property rights as well as infringements of community and religious rights.

Peacebuilding, post-conflict recovery and stabilization of affected communities largely depend on how society responds to the numerous grievances of victims for past human rights violations. Without redress, experience of injustice perpetuates survivors’ resentment and vulnerabilities, generates new tensions or even triggers new cycles of violence and displacement.

Transitional justice is a concept associated with post-conflict States and their official responses to grievances stemming from the period of widespread violence. It involves a set of measures and processes aimed at reckoning with the legacy of mass crimes by ensuring accountability and justice, and achieving reconciliation [United Nations Security Council (UNSC), 2004]. These measures include criminal trials, reparations to victims, truth-telling mechanisms (truth commissions, commissions of inquiry, and the like), and institutional reforms, the purpose of which is to guarantee non-recurrence of human rights abuses (reforms such as vetting State officials, strengthening the independence of the judiciary and civilian control of the armed forces).

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Source

IOM, 2009.

Transitional justice measures may help facilitate the (re-)integration of displaced persons into society through indirect contributions, such as providing recognition to victims and fostering civic trust, as well as more directly by improving safety and security and fostering political, economic and social integration (Duthie, 2013).

States’ practices in designing transitional justice mechanisms have yielded diverse and creative solutions shaped by their legal and cultural traditions, available resources and the specificities or magnitude of crimes committed. Notwithstanding these differences, effective transitional justice mechanisms tend to align with commonly accepted principles (UNSG, 2010):

  • These mechanisms are consistent with international human rights law and standards;
  • They ensure participation of victims and affected communities in their design and implementation to reflect the actual needs and expectations of those victims and communities;
  • They address structural injustices and underlying adverse drivers of violence;
  • They embed gender sensitive approaches in all sequences of the transitional justice process;
  • They seek to adopt a holistic approach, that is, the coherent implementation of all transitional justice measures integrated within broader reform processes in the domain of the rule of law and democratization.

In addition, it is key for States to understand and consider traditional dispute resolution mechanisms, which are sometimes more effective and better accepted than weak formal systems among displaced populations and other affected communities.

To Go Further

Due to vast destruction, scarcity of resources and weak institutions, post-conflict States may benefit from technical and financial assistance from the international community in implementing transitional justice mechanisms. In these instances, the role of the international community is to promote national ownership of the transitional justice process and strengthen local capacities.

The immediate goal of reparation measures is to repair harm and injustice done to victims in a prompt, adequate and effective manner. Because of this, reparation measures have proved to be an important part of the process of restoring trust between victimized population and government institutions (UNGA, 2005). Reparations can include the restitution of rights and freedoms, compensation for damaged or destroyed property or for emotional pain and distress, psychosocial support, health care, economic empowerment, educational measures, or symbolic actions acknowledging the suffering of victims. In designing reparation programmes, States must often balance their scarce resources with the urge to provide redress and acknowledgement to numerous victims.

Policy Approaches
Designing reparation programmes
  • Dedicate resources to provide redress and acknowledgement to the victimized population, even if the numbers of eligible persons are high.
  • Ensure that the selected reparation measures are perceived as meaningful by the population and avoid under all circumstances revictimizing survivors of human rights abuses.
  • Establish clear procedures and structures to determine the beneficiaries of the programme, what type of reparation measures will be provided, institutional design and operating procedures (OHCHR, 2006).
  • Decide on urgent reparation measures for the most vulnerable categories of victims (for example, victims of sexual violence or children).
Good Practice
Addressing challenges to providing reparations in Colombia

In 2011, Colombia passed the Victims and Land Restitution Law (Law 1448), which formed the legal base for providing reparations for conflict victims, including IDPs (internally displaced persons). The law holistically included land restitution, access to housing, education and healthcare, educational training and financial payments.

Source

The World, 2019; Correa, 2015.

Housing, land and property restitution

The restitution of housing, land and property (HLP) rights is a key precondition for post-conflict reconstruction and peacebuilding, as well as for durable solutions for displaced populations and for the (re)building of the rule of law. The absence of just and effective settlement of conflict- or crisis-induced HLP grievances creates fertile ground for communal and societal tensions and for protracted crisis and violence.

The primary duty for designing and implementing restitution programmes rests with the national authorities. However, giving the complex and multisectoral nature of challenges associated with the process of restitution in post-conflict or post-crisis contexts, restitution programmes may benefit from partnerships with the international community.

Key legal and technical issues may involve a lack of documents proving land or property ownership, land and property disputes, property destruction, secondary occupation, absence of land registries (due to conflict destruction, general scarcity of resources or informal tenure systems) and weak or inadequate land administration. These commonly block the restoration of HLP rights in post-conflict and post-crisis contexts and need to be addressed through a restitution process.

Good Practice
Property restitution in post-war Bosnia and Herzegovina

The war in Bosnia and Herzegovina (BiH; 1992–95) cost some 100,000 people their lives and was marked by widespread atrocities, vast material devastation and displacement. More than two million people sought safety abroad or in other areas of BiH.

The Commission for Real Property Claims of Displaced Persons and Refugees (CRPC) was created as an international body in 1996 under the Dayton Peace Agreement (1995). Its mandate was to “Receive and decide any claims for real property in BiH, where the property has not voluntarily been sold or otherwise transferred, … and where the claimant does not now enjoy possession of that property. Claims may be for return of the property or for just compensation.”

Until 2003, when its functions were transferred to national institutions, the CRPC processed more than 240,000 claims for almost 320,000 properties affecting approximately one million people. Despite some shortcomings such as the absence of enforcement functions and a lack of financial resources for the compensation fund, the CRPC is widely recognized as one of the most effective restitution mechanisms across the globe. According to estimates, more than 95 percent of real property units were returned to their pre-war owners. One of the factors attributed to the success of the Commission was the availability of external funding.

Source

Commission for Real Property Claims of Displaced Persons and Refugees (CRPC), 2003; IOM, 2008.

Policy Approaches
Establishing an effective and credible restitution process
  • Align the restitution process, including its institutional framework and legislative intervention, with international human rights and humanitarian law frameworks
  • Strengthen existing bodies or agencies for processing claims and enforcing decisions with adequate financial and technical resources; or else, create new ones.
  • Ensure the participation and consultation of affected individuals and communities during the design and implementation of restitution process [Centre on Housing Rights and Evictions (COHRE), 2006].
  • Institutional arrangements and procedures for processing claims of displaced persons ought to be transparent and easily accessible. Submitting claims can often be costly and lengthy, and it can be harder to access judicial procedures for the restoration of property.
  • Alternative dispute mechanisms (customary, religious) should be integrated in the formal restitution process. This may increase the efficiency and legitimacy of the whole programme, provided that these mechanisms are aligned with human rights principles.
  • While restitution is the preferable remedy for restoring HLP rights, where this is not possible owners of lost property or land have the right to be justly compensated, through monetary means or in kind, or through a combination of restitution and compensation (COHRE, 2006). This places a considerable financial burden on post-conflict governments struggling with many other priorities.
  • When addressing housing, land and property (HLP) issues in the aftermath of conflict, attention should be paid to often vulnerable and/or marginalized groups in terms of ensuring access to their HLP rights.
  • Address discriminatory legal or customary frameworks and practices which often prevent women and marginalized groups from enjoying HLP rights. For example, men and women’s access to and control over land and property varies significantly, both in law and in practice.
  • HLP grievances should be addressed throughout all phases of assistance and in the respective planning processes (humanitarian, transitional and development stages).
To Go Further
Key messages
  • Without proper redress, survivors’ resentment and vulnerabilities could generate new tensions or trigger new cycles of violence and displacement.
  • Transitional justice involves a set of measures and processes aimed at reckoning with the legacy of mass crimes by ensuring accountability and justice, and achieving reconciliation. These measures include criminal trials, reparations to victims, truth-telling mechanisms and institutional reforms.
  • Reparations can include, for example, restitution of rights and freedoms, compensation for damaged or destroyed property or for emotional pain and distress, psychosocial support, health care, economic empowerment, educational measures and symbolic actions acknowledging the suffering of victims.
  • The restitution of housing, land and property (HLP) rights is a key precondition for post-conflict reconstruction and peacebuilding, for durable solutions for displaced populations and for the (re)building of the rule of law.
  • Challenges to implementing effective HLP rights include lack of documents demonstrating land or property ownership, land and property disputes, destruction of property, secondary occupation and the absence of land registries.
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