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Part VIII Accountability for Displacement and Refugee Rights Violations, Ch.62 Restitution and Other Remedies for Refugees and Internally Displaced Persons

Megan Bradley

From: The Oxford Handbook of International Refugee Law

Edited By: Cathryn Costello, Michelle Foster, Jane McAdam

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 28 November 2021

Subject(s):
Human rights remedies — Internally displaced persons — Reparations — Restitution

(p. 1119) Chapter 62  Restitution and Other Remedies for Refugees and Internally Displaced Persons

1.  Introduction

Most refugees and internally displaced persons (IDPs) never receive any formal redress for the wrongs they have suffered. Yet over the past 30 years, significant progress has been made in advancing international norms on remedies for refugees and IDPs, and experiences in countries from Bosnia and Kosovo to Rwanda and Iraq have strengthened understanding of the challenges involved in translating these principles into practice. Efforts have focused predominantly on the restitution of housing, land, and property (HLP), with the assumption that this is the most pertinent remedy for forced migrants, particularly because it may help enable return as the ‘preferred’ solution to displacement.1

This chapter assesses these developments and the state of research on this pivotal challenge. It reviews the approaches taken in major peace treaties, court decisions, and (p. 1120) standards such as the 1998 Guiding Principles on Internal Displacement,2 the 2005 UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (the Pinheiro Principles),3 the 2009 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (the Kampala Convention),4 and the 2010 Inter-Agency Standing Committee (IASC) Framework on Durable Solutions for Internally Displaced Persons.5 It then reflects on five intertwined challenges: (i) developing appropriate data collection techniques and evidentiary standards; (ii) balancing the rights of ‘secondary occupants’ and people in protracted displacement; (iii) mitigating risks associated with HLP restitution; (iv) developing a better understanding of how gender, race, class, and other intersecting power relations influence redress; and (v) moving beyond a narrow focus on property restitution to consider the wider range of losses associated with displacement.

The laws and standards examined here should inform policy and practice at local, national, and international levels, and may bolster refugee and IDP protection. But they are also fraught with tensions, and efforts to implement them come up against thorny political questions. For example, should homes and lands be restored to the displaced if this would exacerbate inequality and instability, or lead to further displacement? How should efforts to redress displaced persons’ HLP claims relate to broader post-conflict land reform processes? What are the implications of efforts to redress displacement for peacebuilding? While largely outside the scope of this chapter, assessments of international standards on redress for refugees and IDPs must be cognizant of such questions.

A word on this chapter’s approach: Before, during and after displacement, refugees and IDPs often experience rights violations requiring remedy, such as torture, rape, and other forms of violence. Being displaced can increase vulnerability to rights violations and hinder opportunities to participate in and benefit from redress processes. However, this chapter focuses primarily on redress for displacement per se, and for violations such as refoulement and the loss of homes and lands. Historically, restitution—the restoration of the status quo ante—has been seen as the most appropriate remedy in cases involving breaches of international legal obligations. However, this chapter follows the 2005 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (UN Reparations Principles) in questioning the preference conventionally accorded to restitution. As the UN Reparations Principles indicate, the most appropriate remedy (or remedies) depends on context, with possibilities (p. 1121) including not only restitution, but also approaches such as compensation, apologies, trials and/or truth-telling. Some of these processes are closely associated with transitional justice.6 While this discussion is not framed in terms of transitional justice, it acknowledges that efforts to redress forced migrants’ losses, including through HLP restitution, may indeed be a critical dimension of transitional justice.7

2.  The Rise of Restitution as the Primary Remedy for Displacement: Context and Dynamics

As survivors of human rights violations, refugees and IDPs are entitled to reparation—whether through restitution, compensation, or other mechanisms—under general principles of international human rights law, and may also claim reparations under mechanisms provided for in international criminal law, such as through Reparations Orders issued by the International Criminal Court.8 Rulings such as that issued in 2013 by the Inter-American Court of Human Rights in the case of Leopoldo García Lucero confirm the right to reparation even when survivors have been exiled and are unable or unwilling to return.9 Beyond the remedial rights of displaced individuals, standards such as the International Law Commission Articles on State Responsibility address reparation for internationally wrongful acts between States and could in theory be used, for example, by host States that have suffered harms linked to large influxes of refugees to seek remedies from the State(s) responsible.

Despite the broad legal foundations underpinning displaced persons’ right to a wide range of reparations for the diverse losses they suffer, in practice attention has focused predominantly on the loss of HLP, and restitution as the primary remedy for these losses. This reflects the fact that HLP disputes are a defining feature of many conflicts involving massive displacement, and a predictable feature of almost every return and peacebuilding process. In voluntary repatriation intention surveys, refugees typically (p. 1122) rank HLP as the third or fourth barrier to return, after safety, livelihoods, and access to services, suggesting that resolving HLP claims is a critical concern for many.10 Addressing displacement-related land grievances is particularly urgent given increased pressure on HLP resources associated with urbanization and the effects of climate change, which render some areas unsafe or uninhabitable.

Since the 1990s, major restitution processes involving displaced persons have been implemented in countries including Bosnia, Croatia, Kosovo, Georgia, South Africa, Mozambique, Rwanda, Iraq, and Colombia, with literature analysing experiences in these cases.11 Formal, internationally supported restitution processes are more often launched in middle-income countries, where claims pertain primarily to properties owned by displaced individuals under statutory systems. Typically, these processes focus on the restitution of real property, particularly residences, rather than rented homes, moveable property or other assets. The literature broadly underscores the importance of administrative rather than judicial approaches to resolving claims as regular courts are typically out of reach and unable to handle significant numbers of HLP cases, leading to protracted disputes and congestion. It has often been vital to have empowered international actors working closely with domestic authorities to ensure the enforcement of decisions in favour of displaced claimants.12

While these are important insights, there is a need for more research on addressing HLP losses in customary or hybrid tenure systems which predominate across much of the Global South, where the vast majority of refugees and IDPs remain.13 In sub-Saharan Africa, for example, an estimated 90 per cent of rural populations access land through customary or informal tenure systems; similarly, approximately 90 per cent of new urban communities in sub-Saharan Africa are slums or irregular settlements in which land is held informally.14 In such contexts, informal or customary mechanisms often play critical roles in resolving claims and mediating disputes. These mechanisms do not necessarily adhere to international standards; in some instances their departure from these principles may be integral to their perceived credibility. They also may be difficult (p. 1123) to access and navigate for refugees, IDPs, and returnees who have been absent for long periods, and disconnected from the norms and networks that shape these institutions’ work.15

Whether formal or informal, restitution processes have had to grapple with challenges including competing claims, widespread damage and destruction of HLP, land grabbing, lack of documents and land records, or destruction of these materials, and coercive or ‘bad faith’ HLP transactions, sometimes followed by ‘good faith’ transactions.16 Conflicts involving genocide or ethnic cleansing raise particularly severe hurdles, as the displacement of entire groups may be accompanied by deliberate efforts to prevent returns, such as through wholesale destruction of HLP and landmarks. In such instances, restitution and returns have been portrayed as essential to principled opposition to ethnic cleansing. From this perspective, remedies such as compensation may be rejected as ‘blood money’ that attempts to legitimize the dispossession of entire communities. And yet, given their experiences, some refugees and IDPs may prefer compensation over restitution and return, raising complex questions about how displaced persons’ diverse perspectives and preferences should figure in the design and implementation of redress programmes. The development of international norms on redress for refugees and IDPs must be understood in relation to these dynamics.

3.  Developing Norms on Redress for Refugees and IDPs: Focus on HLP Restitution

Opinions are divided on the state of the normative framework regarding HLP restitution for refugees and IDPs. Some suggest that existing international legal tools are ‘robust’, while others stress that minimum standards are difficult to precisely discern, as there is no explicit, binding provision in current international law on HLP restitution or other forms of redress for displaced persons.17 Neither the Refugee Convention nor the OAU Convention directly address refugees’ rights to remedies such as restitution. Rather, most general provisions on the subject are reflected in soft law. A wide (p. 1124) range of international resolutions and agreements, as well as national laws and policies, address restitution and other remedies for specific displaced groups, often emphasizing their link to enabling returns. By 2007, over 240 international, regional and national agreements, laws, and judicial decisions addressed HLP restitution for displaced persons; this number has kept growing, suggesting increased recognition of the general principle that refugees and IDPs have the right to have HLP assets restored, and the right to return to use them.18 Reflecting this trend, the International Committee of the Red Cross (ICRC) has concluded that as a matter of customary International Humanitarian Law (IHL), ‘[d]isplaced persons have a right to voluntary return in safety and dignity to their homes or places of habitual residence as soon as the reasons for their displacement cease to exist’, and that the ‘property rights of displaced persons must be respected’.19 The ‘fact that violations of property rights may impede implementation of the right to return…further supports the customary nature of this rule’.20

a.  UN Resolutions and Peace Agreements

The UN Secretary-General has called for negotiators to include ‘the right to return and restitution of housing, land or property in all future peace agreements and all relevant [Security] Council resolutions’.21 In addition, scores of UN General Assembly and Human Rights Council resolutions address the issue. Perhaps the earliest and certainly the most reaffirmed UN resolution related to refugees’ remedial rights is UN General Assembly Resolution 194 (III) of 1948, which resolves that Palestinian

refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.22

Resolution 194 has of course never been implemented, but its provisions have been echoed in many subsequent General Assembly resolutions, helping to cement the connection between the right of return and the reclamation of lost homes.23

(p. 1125) The 1992 General Peace Agreement for Mozambique stands out as one of the first major post-Second World War treaties to explicitly acknowledge and detail plans to realize displaced persons’ rights to return and restitution, indicating that ‘Mozambican refugees and displaced persons shall be guaranteed restitution of property owned by them which is still in existence and the right to take legal action to secure the return of such property from individuals in possession of it’.24 However, the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement) was a turning point in the promotion of restitution rights for refugees and IDPs, and by extension the right of return—understood as the right not only to re-enter one’s country, but to reclaim and resume living in former residences. The Dayton Agreement surpassed previous treaties in its level of detail and international support for its implementation in an attempt to challenge the ethnic cleansing of Bosnia by insisting on the twin rights of return and restitution.25 Annex VII of the agreement indicates that, ‘[a]ll refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991….’26

Through a pivotal Property Law Implementation Plan, the process eventually resolved more than 215,000 claims, 92 per cent of which were enforced in favour of displaced claimants.27 The restitution process did not translate into high levels of ‘minority returns’; many refugees and IDPs who would have been in the ethnic minority if they returned to their pre-war homes, instead sold their properties and re-established themselves elsewhere in the country. However, building on this precedent, virtually every post-1995 peace agreement recognizes displaced persons’ rights to return, restitution, or other forms of redress.28 Handbooks and preparatory tools for peace negotiators now emphasize that all agreements aiming to resolve conflicts characterized by massive forced migration should address the right of return and the resolution of displaced persons’ HLP claims.29 Most recently, agreements to end the conflict in Colombia involve extensive, ongoing efforts to restore IDPs’ lost homes (p. 1126) and lands, alongside a range of other remedies for the displaced, including compensation and truth-telling.30

b.  IDP Standards

The development of the normative framework on IDPs has played an important role in confirming, clarifying, and advancing displaced persons’ rights to redress, including but not limited to HLP losses. While the Guiding Principles on Internal Displacement address remedies for IDPs only in terms of property losses, they buck the trend of focusing narrowly on return, also emphasizing the need to address the claims of resettled IDPs. Principle 29.2 states:

Competent authorities have the duty and responsibility to assist returned and/or resettled internally displaced persons to recover, to the extent possible, their property and possessions which they left behind or were dispossessed of upon their displacement. When recovery of such property and possessions is not possible, competent authorities shall provide or assist these persons in obtaining appropriate compensation or another form of just reparation.31

The Guiding Principles thus reflect the view that restitution is generally the preferred approach to redressing displaced persons’ property losses, but recognize the potential importance of other remedies. Significantly, Principle 29.2 addresses both real property and other possessions, although implementation efforts have focused primarily on HLP.

Comparing the 1995 Compilation and Analysis of Legal Norms informing the development of the Guiding Principles, and the revised 2008 Annotations to the Guiding Principles, underscores how rapidly norms on restitution developed in a relatively short period. The 1995 Compilation recognized that IDPs’ return ‘raises questions concerning the right to restitution for the property or compensation for its loss. There is a certain trend in general human rights instruments, along with the progressive development of international law, to answer these questions in the affirmative.’32 However, the Compilation indicated that while regional bodies, such as the Inter-American Commission on Human Rights, had recommended remedies for IDPs’ property losses, (p. 1127) ‘the right to restitution of property lost as a consequence of displacement or compensation for its loss is not fully recognized’.33 In comparison, the 2008 edition of the Annotations indicates that while ‘there is [still] no general rule in present human rights law that explicitly affirms the right of internally displaced persons to return to their original places of residence…such a right can be deduced from the right to the liberty of movement and the right to choose one’s residence’.34 The revised Annotations identify many new standards relevant to restitution and return, and elaborate on the expanding grounds underpinning IDPs’ right to restitution or other remedies for their HLP losses, linking this to protection of the rights to property, freedom from arbitrary interference with one’s home, and adequate housing.35

Building on the Guiding Principles and developed under the leadership of the Representative of the UN Secretary-General on the Human Rights of IDPs, the IASC Framework on Durable Solutions for IDPs distils rights-based criteria and processes related to the resolution of internal displacement. The Framework specifies that durable solutions have been achieved when IDPs ‘no longer have any specific assistance and protection needs that are linked to their displacement and such persons can enjoy their human rights without discrimination resulting from their displacement’.36 The Framework maps out eight criteria that can be used to discern the extent to which durable solutions have been achieved, including two directly pertinent to redress: ‘restoration of housing, land and property’ and ‘access to effective remedies and justice’.37 According to the Framework, ‘IDPs who have achieved a durable solution have access to effective mechanisms for timely restitution of their housing, land and property, regardless of whether they return or opt to integrate locally or settle elsewhere in the country’.38 Whereas the Guiding Principles focus on restitution of ‘property and possessions’, the IASC Framework follows the Pinheiro Principles in addressing not only real property independently owned under statutory law, but also the loss of housing and land held under tenancy or lease agreements, or under informal, customary, or collective arrangements.39 Importantly, the Framework goes beyond a narrow focus on HLP, clarifying that

IDPs who have been victims of violations of international human rights or humanitarian law, including arbitrary displacement, must have full and non-discriminatory access to effective remedies and access to justice, including, where appropriate, access to existing transitional justice mechanisms, reparations and information on the causes of violations.40

(p. 1128) The Kampala Convention also takes an expansive approach to remedies for IDPs. Strikingly, the Convention does not directly mention restitution or explicitly recognize IDPs’ right to have lost homes or lands restored to them, although article 11 does provide that ‘States Parties shall establish appropriate mechanisms providing for simplified procedures where necessary, for resolving disputes relating to the property of internally displaced persons’, and that ‘States Parties shall take all appropriate measures, whenever possible, to restore the lands of communities with special dependency and attachment to such lands upon the communities’ return, reintegration, and reinsertion’.41 Rather, in article 12 on ‘Compensation’, the Convention indicates that States parties ‘shall provide persons affected by displacement with effective remedies’ and ‘shall establish an effective legal framework to provide just and fair compensation and other forms of reparations, where appropriate, to internally displaced persons for damage incurred as a result of displacement, in accordance with international standards’.42 In this way, the Convention recognizes the wide range of harms for which IDPs may seek redress, including but not limited to HLP losses. By specifying that effective remedies should be provided to those ‘affected by displacement’, the Convention dramatically expands the range of parties who could potentially seek redress, such as members of return and host communities who have been burdened or harmed by displacement. However, there is little evidence that these provisions have been leveraged to secure meaningful remedies for people ‘affected by displacement’ in signatory States.43

c.  The UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles)

The Pinheiro Principles are the most prominent international standard focused on redressing forced migrants’ HLP losses.44 Named for Paulo Sérgio Pinheiro, the former Special Rapporteur on Housing and Property Restitution for Refugees and Internally Displaced Persons, the Principles were presented as the first ‘consolidated and universal approach’ to refugee and IDPs’ HLP claims, rooted in existing international legal standards.45

(p. 1129) The Pinheiro Principles provide that ‘[a]ll refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore’, and insists that States should ‘demonstrably prioritize the right to restitution as the preferred remedy for displacement and as a key element of restorative justice’.46 While the Principles recognize that the ‘right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor non-return of refugees and displaced persons’, they reflect the view that restitution and return are two sides of the same coin, and that return is the preferred solution to displacement. Section IV is devoted to ‘The Right to Voluntary Return in Safety and Dignity’, and return is addressed extensively throughout the document, which is otherwise almost silent on how restitution may support other durable solutions. Introducing the Principles, Pinheiro argued that the

best solution to the plight of millions of refugees and displaced persons around the world is to ensure they attain the right to return freely to their countries and to have restored to them housing and property of which they were deprived during the course of displacement, or to be compensated for any property that cannot be restored to them. It is the most desired, sustainable, and dignified solution to displacement.47

In adopting this position, the Principles accord with many treaties, resolutions, and national laws and policies that prioritize return and restitution, but diverge from standards such as the Guiding Principles and the IASC Framework which instead emphasize the value of informed choice and the equal legitimacy of return, local integration, and relocation as avenues to resolving displacement.

In 2007, a collection of UN agencies and non-governmental organisations published a Handbook on Implementing the Pinheiro Principles, which was complemented by the release in 2016 of a legal commentary on the Principles.48 The Principles have become widely referenced, informing court decisions and laws such as Colombia’s influential Victims’ Law.49 However, they have also been forcefully critiqued by scholars, advocates, and practitioners concerned that, inter alia, the Principles overstate the implications of existing international law related to restitution, inappropriately privilege return over other durable solutions, and minimize the complexity of addressing the rights of (p. 1130) secondary occupants, and that their rigid prioritization of restitution over other approaches may jeopardize fragile peace processes.50

4.  Key Challenges

The international standards discussed above have been complemented by a raft of national laws and policies, some focused on particular displaced populations, or more broadly on responses to forced migration in the context of conflict, disasters, or development projects.51 Despite these advances, major challenges remain for research, practice, and further normative developments.

a.  Data Collection and Evidentiary Standards

Lack of clear documentation is a key challenge facing efforts to implement national and international standards on redress for refugees and IDPs, but important advances have been made in understanding how alternative evidentiary standards and tailored approaches to demonstrating ownership or occupancy may address this concern.52 These techniques include gathering evidence on HLP claims during refugee and IDP registration processes and subsequent data collection efforts, community-based mapping and land registration efforts, forensic surveying, and recording customary practices that corroborate HLP claims, including testimony from owners, users, and community leaders.53 Gathering evidence of claims and making these processes known even as conflict is ongoing may have a ‘pre-emptive effect on some forms of dislocation’, discouraging displacement and land grabbing by making clear that the ground has been laid for future restitution claims, and that it is therefore unlikely that occupied land can be legally retained.54 However, deploying these techniques and advancing HLP restitution in the context of ongoing conflict may also present significant risks, particularly in the absence of effective institutions that can protect those who regain their homes and lands from coercive pressure to sell them at fire sale rates.

(p. 1131) b.  Balancing the Rights of ‘Secondary Occupants’ and People in Protracted Displacement

The increasingly protracted nature of refugee situations and internal displacement raises important questions regarding the rights of so-called ‘secondary occupants’ of forced migrants’ homes and lands. ‘Secondary occupants’ is somewhat misleading as repeated displacements often mean that homes and lands may be occupied and abandoned multiple times; secondary occupants are often themselves displaced, and have had their own homes taken over by others. In the context of long-standing patterns of dispossession associated with colonialism and the ouster of indigenous populations, refugees or IDPs identified as the rightful claimants in post-conflict restitution processes based on statutory law may themselves be reasserting control over resources wrongfully taken from others in dispossessions deemed outside the remedial timeframe.

Evicting long-standing secondary occupants to make way for returnees, or to enable displaced claimants to repossess and sell their property, is itself a form of displacement, and in some cases arguably entails harms disproportionate to the value of the justice that would be achieved through restitution.55 This is a particular concern in cases in which restitution would uproot people who had themselves been displaced or were deeply impoverished and homeless, and had been resident in good faith on lands left behind by others. Adverse possession laws may provide some legal grounding for secondary occupants’ claims to remain, although these laws are rarely intended to apply in conflict situations and can raise serious challenges regarding respect for displaced persons’ HLP rights.56 It is often unclear if war-time occupation ‘counts towards the time requirements for claiming land via adverse possession’.57 Adverse possession laws may be used to undermine restitution, as took place for example in Guatemala in relation to restitution claims made by some indigenous displaced persons. In some cases, elite property owners may attempt to forcibly evict IDPs if they fear that war-time secondary occupation may be used to underpin adverse possession claims. As experiences in Liberia have demonstrated, this risk may be particularly pronounced as the end of the adverse possession period nears.58

(p. 1132) Existing international standards and scholarly literature provide limited guidance on addressing the complex challenges associated with balancing the rights and well-being of secondary occupants and displaced persons, particularly in protracted situations. The Pinheiro Principles do provide some protection for secondary occupants, but ultimately strongly favour granting refugee and IDPs’ restitution claims. For example, principle 17.1 indicates that

States should ensure that secondary occupants are protected against arbitrary or unlawful forced eviction. States shall ensure, in cases where evictions of such occupants are deemed justifiable and unavoidable for the purposes of housing, land and property restitution, that evictions are carried out in a manner that is compatible with international human rights law and standards, such that secondary occupants are afforded safeguards of due process, including an opportunity for genuine consultation, adequate and reasonable notice, and the provision of legal remedies, including opportunities for legal redress.59

The Principles also emphasize the need to protect evicted secondary occupants from homelessness,60 but indicate that delays associated with upholding due process or securing alternative accommodation for secondary occupants should not ‘prejudice the rights of legitimate owners, tenants and other rights holders to repossess the housing, land and property in question in a just and timely manner’.61

The complex series of rulings issued by the European Court of Human Rights in relation to displacement and restitution in Cyprus, stemming from the landmark 1996 ruling in Loizidou v Turkey, offer valuable insight into this legally and politically fraught question. The court’s ‘Loizidou line of decisions’ has often been interpreted as strongly favouring restitution and return, as promoted by Greek Cypriot negotiators. While the decisions clearly preclude earlier Turkish Cypriot proposals favouring a ‘global exchange’ of property and little to no return, in more recent judgments the court has accepted revamped Turkish compensation programmes as providing an ‘effective domestic remedy’ to dispossessed Greek Cypriots for the loss of use of their property, ‘explicitly reject[ing] the Greek Cypriot position that remedies other than restitution should be limited to circumstances of “material impossibility” ’.62

c.  Mitigating Risks

HLP restitution efforts may inadvertently introduce risks to displaced persons’ rights and well-being, which necessitate closer examination and mitigation. For example, (p. 1133) while customary or informal tenure arrangements are predominant in much of the Global South, standards such as the Pinheiro Principles encourage the formalization of HLP rights with a view to limiting future conflict, and various restitution programmes have incorporated formalization efforts.63 However, title formalization efforts are highly vulnerable to elite capture; that is, these processes are often manipulated by powerful economic actors, and entrench the marginalization of poorer populations, including displaced persons. In countries such as Colombia, restitution processes have been implemented in the context of ongoing violence. In the absence of institutions willing and able to protect against coercive transactions, displaced persons and communities who receive formal title through the restitution process have subsequently been pressured into selling their homes and lands to powerful actors connected to gangs, paramilitaries, and other armed groups, well below market rates. Such experiences underscore the need to ensure that the drive to resolve claims in a timely way does not exacerbate risks facing refugees and IDPs.64

These experiences also point to the risks associated with a disconnect between restitution programmes promoted by humanitarians focused on refugees and IDPs, and broader pro-poor tenure management efforts, typically led by development specialists. As Unruh stresses, ‘land law reform usually always follows civil war…if approaches to HLP restitution which interact significantly with local populations are applied early, this can provide a valuable head start on this important phase, potentially…speeding up postwar HLP reform’.65 Alternatively, approaches that treat displaced persons’ HLP rights separately from those of the broader community may heighten resentment and confusion.66

d.  The Influence of Gender, Class, and Other Power Structures on Redress

An increasing body of research considers how ‘intersecting constellations of power relationships’ associated with constructs such as gender, age, race, and class ‘produce unequal material realities and distinctive social experiences for individuals and groups associated with them’, including in contexts of conflict and displacement.67 Some researchers have considered how factors such as gender and age influence restitution processes, bringing into focus how, for example, gendered distributions of HLP resources and legal systems that privilege older men can negatively affect the ability of (p. 1134) women and young people to benefit from restitution.68 To date, however, relatively little research has explored restitution and other approaches to redressing displacement from an intersectional perspective, although such approaches could helpfully bring into focus how ‘individuals and groups can simultaneously experience privilege and disadvantage’, including in contested efforts to resolve HLP claims and redress other aspects of forced migration.69

Gender-sensitive and intersectional perspectives reveal how restitution can function as a double-edged sword, restoring valuable resources that refugees and IDPs can use to rebuild their lives, while also reproducing inequality by seeking to restore the status quo ante, rather than recast power relations through redistribution. In particular, there is a stark need for research on restitution and other forms of redress to devote more attention to race, class, and the effects of national socio-economic contexts on decisions to promote restitution. Significant international investments in support of restitution and compensation are more common in the context of displacement in European and middle-income countries, where real property is more likely to be held under statutory laws. This disproportionately benefits middle-class and elite claimants who are more likely to own property, and erroneously suggests that losses are less important in deeply impoverished communities—whereas it is precisely in the context of severe resource scarcity that restitution or other material remedies may prove critical to forced migrants’ ability to re-establish themselves. The tendency in research, law, policy, and practice to focus on restitution of real property also merits reconsideration to better account for the experiences and perspectives of indigenous communities who do not necessarily see land as property, and for whom the restoration of communal lands may carry broader spiritual or cultural significance.70

e.  Remedies beyond HLP Restitution

The injustices of displacement go far beyond the loss of housing, land, and possessions. Although remedies for refugees and IDPs have focused primarily on HLP restitution, there is a need to consider the wider ranges of losses associated with forced migration—including refoulement and displacement as harms in their own right—and how these wrongs may be redressed. A limited but growing body of cases and literature provides insight into this issue, with the International Law Association’s 1992 Cairo Declaration of Principles of International Law on Compensation to Refugees stressing that responsibility for redressing refugees rests first and foremost with State (p. 1135) authorities involved in generating refugee flows.71 This is typically the State of origin, but aggressor States in international armed conflicts may also incur obligations to compensate or otherwise provide redress to people displaced as a result of their actions. For example, the UN Compensation Commission (UNCC) was established in 1991 to redress harms against individuals, States, and companies stemming from Iraq’s invasion of Kuwait, and compensated thousands of people forced to flee Kuwait and Iraq, with funds from Iraqi oil sales.72 Reparations for refoulement remain rare, but in an exception to this trend, the settlement with Holocaust survivors negotiated and financed by the Swiss government and Swiss banks provided compensation to refugees who sought shelter in Switzerland and were turned away or subsequently refouled.73 More recently, some refugees and asylum seekers who have been unlawfully harmed as they have sought protection have used class action lawsuits to secure some redress for their losses. For example, in 2018 the Australian courts awarded 1,700 former Manus Island detainees AUS$70 million in compensation for false imprisonment in the largest human rights class action settlement in Australian history.74 While such efforts rely on domestic tort law rather than public international law, and are generally limited to defendant countries in the Global North, they represent a potentially important avenue for advancing refugees’ remedial rights, and perhaps deterring some particularly flagrant violations of their rights.

The 2005 UN Reparations Principles suggest that enabling displaced persons to return to their homes may be a form of redress, while scholars such as Souter have suggested that the provision of asylum or support for alternative durable solutions such as resettlement or local integration may also, depending on the context, be framed as reparative measures.75 Efforts to provide redress to IDPs in Colombia provide insight into how a range of remedies, including restitution, compensation, apologies, and support for durable solutions may be blended. At the same time, the process highlights the bureaucratic and political challenges associated with implementing such comparatively ambitious reparation efforts, and the risks that come with offering remedies with a view to closing the books on displacement.76 In such cases, those who object to the forms of redress that are extended, or who continue to identify themselves as displaced despite the remedies offered, may be painted as recalcitrant (p. 1136) spoilers out of step with the peace process, rather than legitimate victims with unresolved claims.77

International humanitarian law and international criminal law prohibits deportation or forcible population transfers in particular contexts, and in recent years an increasing number of international and ad hoc tribunals have attempted to prosecute these acts as war crimes or crimes against humanity.78 For example, the Rome Statute of the International Criminal Court defines deportation or forcible transfer of population as ‘forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law’, and recognizes this as a crime against humanity when it is ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.79 However, demonstrating that displacement meets these conditions has proven difficult, and it is unclear that criminal prosecution deters population displacement in war, or responds in a meaningful way to displaced persons’ priorities and preferences in relation to redress. While prosecuting the architects of massive displacement or ethnic cleansing can send a powerful political signal, the local level perpetrators of such actions often go unpunished, with their presence in communities of origin undercutting the possibility of safe and sustainable returns.80 In addition to efforts to redress deportations and forcible population transfers through prosecutions, some advocates are attempting to use international courts to uphold responsibility for policies that result in migrant deaths. For example, recent submissions to the International Criminal Court (ICC) encourage the prosecution of the European Union and key States including Italy, Germany, and France for deterrence efforts that have led to thousands of migrants dying while attempting to cross the Mediterranean.81

Beyond attempts to offer redress to displaced individuals, host States may also have significant claims for compensation in relation to the expenses and challenges associated with sheltering large numbers of refugees.82 Does framing the act of extending asylum or sheltering displaced populations as a harm requiring redress actually encourage welcoming policies and advance rights protection overall? This is an open question. (p. 1137) Elevating the pursuit of redress for wrongs can crowd out visions of political life based on other values such as solidarity and social justice—values that may ultimately be more conducive to welcoming, assisting and protecting the displaced.

5.  Conclusion

The challenges discussed above are by no means exhaustive. Considerable progress has been made since the end of the Cold War in developing normative standards on redress for refugees and IDPs, and some important lessons have been gleaned on implementing these norms. Yet the extent to which these have translated into direct benefits for the displaced remain starkly limited. Moving forward, there is a need to look beyond the predominant, narrow focus on restitution of real property, to better consider the rights and well-being of those without land to repossess, and account for the broader range of harms suffered by forced migrants. While this discussion has focused on redress for refugees and IDPs in the context of violence and conflict, the rights and claims of those uprooted in disasters also demand more careful consideration.83 Although there has, to date, been less attention devoted to remedies for displacement in disaster situations, this issue is becoming increasingly salient as the effects of climate change become more pronounced.84

Footnotes:

1  See eg Anneke Smit, The Property Rights of Refugees and Internally Displaced Persons: Beyond Restitution (Routledge 2012); Guilia Paglione, ‘Individual Property Restitution: From Deng to Pinheiro—and the Challenges Ahead’ (2008) 20 IJRL 391; Megan Bradley, Refugee Repatriation: Justice, Responsibility and Redress (CUP 2013). On the purported preferability of return, see Megan Bradley, ‘Is Return the Preferred Solution to Refugee Crises?’ in David Miller and Christine Straehle (eds), The Political Philosophy of Refuge (CUP 2019).

2  UN Commission on Human Rights, ‘Guiding Principles on Internal Displacement’, UN doc E/CN.4/1998/53/Add.2 (11 February 1998) (Guiding Principles).

3  UN Commission on Human Rights, Principles on Housing and Property Restitution for Refugees and Displaced Persons UN doc E/CN.4/Sub.2/2005/17 (2005) (Pinheiro Principles).

4  African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (adopted 23 October 2009, entered into force 6 December 2012) 49 ILM 86 (Kampala Convention).

5  IASC, ‘IASC Framework on Durable Solutions for Internally Displaced Persons’ (The Brookings Institution–University of Bern Project on Internal Displacement April 2010).

6  See Rhodri Williams, ‘Protection in the Past Tense: Restitution at the Juncture of Humanitarian Response to Displacement and Transitional Justice’ in Roger Duthie (ed), Displacement and Transitional Justice (SSRC 2012) 85.

7  On transitional justice and displacement, see Megan Bradley (ed), Forced Migration, Reconciliation and Justice (McGill-Queen’s University Press 2015); Roger Duthie, ‘Transitional Justice and Displacement’ (2011) 5 International Journal of Transitional Justice 241; Megan Bradley and Roger Duthie, ‘Introduction to Special Issue on Accountability and Redress for the Injustices of Displacement’ (2014) 27 Journal of Refugee Studies 161.

8  See Dinah Shelton, Remedies in International Human Rights Law (OUP 2006).

9  Leopoldo García Lucero suffered torture under the Pinochet regime in Chile, and was exiled to the United Kingdom. See Case of García Lucero v Chile, Inter-American Court of Human Rights Series C No 267 (28 August 2013).

10  Niels Harild, Asger Christensen, and Roger Zetter, ‘Sustainable Refugee Return: Triggers, Constraints and Lessons’ (World Bank 2015) xi, xiii.

11  On different national restitution experiences, see eg Derrick Fay and Deborah James (eds), The Rights and Wrongs of Land Restitution (Routledge 2009); Scott Leckie (ed), Returning Home: Housing and Property Restitution Rights for Refugees and Displaced Persons (Transnational Publishers 2003); Jon Unruh and Rhodri Williams (eds), Land and Post-Conflict Peacebuilding (Routledge 2013).

12  Rhodri Williams, The Contemporary Right to Property Restitution in the Context of Transitional Justice (ICTJ 2007). For an alternative view, see Dan Stigall, ‘Refugees and Legal Reform in Iraq: The Iraqi Civil Code, International Standards for the Treatment of Displaced Persons, and the Art of Attainable Solutions’ in Unruh and Williams (n 11) 205–37.

13  See eg Unruh and Williams (n 11); Scott Leckie and Chris Huggins, Conflict and Housing, Land and Property Rights: A Handbook on Issues, Frameworks and Solutions (CUP 2011); Liz Alden Wily, ‘Tackling Land Tenure in the Emergency to Development Transition in Post-Conflict States: From Restitution to Reform’ in Sara Pantuliano (ed), Uncharted Territory: Land, Conflict and Humanitarian Action (Practical Action 2009); Sandra Joireman and Laura Yoder, ‘A Different Way Home: Post-Conflict Rural Property Restitution under Customary Law’ (2016) 47 Development and Change 563.

14  UN HABITAT, Secure Land Rights for All (2008) 14.

15  See Conor Foley, ‘Housing, Land and Property Restitution Rights in Afghanistan’ in Scott Leckie (ed), Housing, Land and Property Rights in Post-Conflict United Nations and Other Peace Operations: A Comprehensive Survey and Proposal for Reform (CUP 2008).

16  Jon Unruh, ‘Evidencing the Restitution Landscape: Pre-Emptive and Advance Techniques for War-Torn Land and Property Rights Reacquisition’ (2014) 38 Land Use Policy 111, 112. See also Sara Pantuliano (ed), Uncharted Territory: Land, Conflict and Humanitarian Action (Practical Action 2009); Smit (n 1); Williams (n 6); Unruh and Williams (n 11).

17  Unruh (n 16) 111; Stigall (n 12); Catherine Phuong, The International Protection of Internally Displaced Persons (CUP 2004).

18  For a compilation of these standards, see Scott Leckie (ed), Housing, Land and Property Restitution Rights of Refugees and Displaced Persons: Laws, Cases and Materials (CUP 2007).

19  Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law: Rules, vol I (CUP 2005) rules 132, 133.

20  ibid 474.

21  UNSC, Report on the Protection of Civilians in Armed Conflict: Report of the Secretary-General, UN doc S/2007/643 (7 May 2019) para 59.

22  UNGA res 194(III) (11 December 1948).

23  Gail Boling, ‘Palestinian Refugees and the Right of Return: An International Law Analysis’ (Information and Discussion Brief No 8, BADIL 2001).

24  UNSC, ‘Letter Dated 6 October 1992 from the Representative of Mozambique to the United Nations Addressed to the Secretary-General,’ UN doc S/24635 (8 October 1992) (General Peace Agreement for Mozambique) art IV(e). On customary authorities’ roles in resolving property claims in post-war Mozambique, see Jon Unruh, ‘Property Restitution Laws in a Post-War Context: The Case of Mozambique’ (2005) 1 African Journal of Legal Studies 147.

25  Gerard Toal and Carl Dahlman, Bosnia Remade: Ethnic Cleansing and its Reversal (OUP 2011) 7–8.

26  ‘General Framework Agreement for Peace in Bosnia and Herzegovina’ in UNGA, Letter dated 29 November 1995 from the Permanent Representative of the United States of America to the United Nations addressed to the Secretary-General UN doc A/50/790; S/1995/999 (30 November 1995) (Dayton Agreement) annex VII, art 1(1).

27  Rhodri Williams, ‘Post-Conflict Property Restitution and Refugee Return in Bosnia and Herzegovina: Implications for International Standard-Setting and Practice’ (2006) 37 New York University Journal of International Law and Politics 441, 443.

28  See eg Catherine Phuong, Forcible Displacement in Peace Agreements (International Council on Human Rights Policy 2005) 12.

29  See eg Gerard McHugh, Integrating Internal Displacement in Peace Processes and Agreements (Brookings-Bern Project on Internal Displacement and United States Institute of Peace 2010) 56.

30  Roberto Vidal López, ‘Truth-telling, Internal Displacement and the Peace Process in Colombia’ in Megan Bradley (ed), Forced Migration, Reconciliation and Justice (McGill-Queen’s University Press 2015); Julieta LeMaitre and Kristin Sandvik, ‘From IDPs to Victims in Colombia: Reflections on Durable Solutions in the Postconflict Setting’ in Megan Bradley, James Milner, and Blair Peruniak (eds), Refugees’ Roles in Resolving Displacement and Building Peace: Beyond Beneficiaries (Georgetown University Press 2019) 187–210.

31  Guiding Principle 29.2.

32  UN Commission on Human Rights, ‘Internally Displaced Persons, Report of the Representative of the Secretary-General, Francis Deng, submitted pursuant to Commission on Human Rights Resolution 1995/57: Compilation and Analysis of Legal Norms’, UN doc E/CN.4/1996/52/Add.2 (5 December 1995) para 275.

33  ibid para 284, 416. See further Megan Bradley, ‘Durable Solutions and the Right of Return for IDPs: Evolving Interpretations’ (2018) 30 IJRL 218.

34  Walter Kälin, Guiding Principles on Internal Displacement: Annotations (rev edn, American Society of International Law and Brookings–Bern Project on Internal Displacement 2008) 126.

35  ibid 132–3.

36  IASC (n 5) 5.

37  ibid 27.

38  ibid 35.

39  ibid 35–8.

40  ibid 42.

41  Kampala Convention (n 4) art 11(4), 11(5).

42  ibid art 12(1), 12(2). In art 12(3), the Convention also articulates a particular obligation for States parties to redress IDPs ‘for damage when such a State Party refrains from protecting and assisting internally displaced persons in the event of natural disasters’.

43  Mike Asplet and Megan Bradley, ‘Strengthened Protection for Internally Displaced Persons in Africa: The Kampala Convention Comes into Force’ (2012) 16(36) ASIL Insights 1.

44  Relevant regional standards include the International Conference on the Great Lakes Region, ‘Protocol on the Property Rights of Returning Persons’ (30 November 2006) <https://www.refworld.org/docid/595c92644.html> accessed 20 February 2020.

45  Scott Leckie, ‘An Introduction to the “Pinheiro Principles” ’ in The Pinheiro Principles: United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (Centre on Housing Rights and Evictions 2005) 4.

46  Pinheiro Principles (n 3) Principle 2(1)–(2).

47  Centre on Housing Rights and Evictions, ‘UN to Adopt Pathbreaking New Global Standard Which Demands Return of Confiscated Refugee Land and Housing’ (Media Release, 11 August 2005).

48  UNHCR, Food and Agriculture Agency (FAO), Norwegian Refugee Council (NRC), Inter-Agency Internal Displacement Division (IDD), OHCHR, and UN-HABITAT, ‘Handbook on Housing and Property Restitution for Refugees and Displaced Persons: Implementing the “Pinheiro Principles” ’ (2007); Khaled Hassine and Scott Leckie, The United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons: A Commentary (Brill 2015).

49  Ley de Victimas, L 1448/11, junio 10, 2011, 40.096 DIARIO OFICIAL (DO) (Colombia).

50  See eg Smit (n 1); Megan Ballard, ‘Post-Conflict Property Restitution: Flawed Legal and Theoretical Foundations’ (2010) 28 Berkeley Journal of International Law 1; Paglione (n 1).

51  See eg Michael Cernea and Hari Mathur (eds), Can Compensation Prevent Impoverishment? Reforming Resettlement through Investments and Benefit-Sharing (OUP 2008). The extent to which national laws and policies adhere to international, rights-based standards on durable solutions and redress for displacement varies dramatically. See Megan Bradley and Angela Sherwood, ‘Addressing and Resolving Internal Displacement: Reflections on a Soft Law “Success Story” ’ in Thomas Gammeltoft-Hansen, Stephanie Lagoutte, and John Cerone (eds), Tracing the Roles of Soft Law in Human Rights (OUP 2016) 155–82.

52  Unruh (n 16).

53  ibid; Donald Wilson, Forensic Procedures for Boundary and Title Investigation (John Wiley 2008).

54  Unruh (n 16) 111.

55  For an influential theoretical examination of this dilemma see Jeremy Waldron, ‘Superseding Historic Injustice’ (1992) 103 Ethics 4; Jeremy Waldron, ‘Settlement, Return and the Supersession Thesis’ (2004) 5 Theoretical Inquiries in Law 237. Extensive literature considers how compensation for Palestinian refugees may figure in an eventual peace agreement, and how this relates to refugees’ rights to return and restitution. See eg Rex Brynen and Roula El-Rifai (eds), Compensation to Palestinian Refugees and the Search for Palestinian–Israeli Peace (Pluto Press 2013); IOM, Property Restitution and Compensation: Practices and Experiences of Claims Programs (2008).

56  Adverse possession is ‘a legal approach to acquisition of title by possession or occupation of land or property for a certain period of time under certain conditions’. (Unruh (n 16) 119). On the relationship between HLP restitution and adverse possession, see Smit (n 1).

57  Unruh (n 16) 119.

58  ibid. See also John Unruh, ‘Land Rights in Postwar Liberia: The Volatile Part of the Peace Process’ (2009) 26 Land Use Policy 425.

59  Pinheiro Principles (n 3) Principle 17.1.

60  ibid Principle 17.3.

61  ibid Principle 17.2.

62  Rhodri Williams and Ayla Gürel, The European Court of Human Rights and the Cyprus Property Issue: Charting a Way Forward (PCC Paper 1/2011, PRIO Cyprus Papers 2011) 3–4.

63  Pinheiro Principles (n 3) Principle 15.1–15.2.

64  Vidal López (n 30); David Cantor, Returns of Internally Displaced Persons during Armed Conflict: International Law and its Application in Colombia (Brill 2018).

65  Unruh (n 16) 120.

66  Alden Wily (n 13).

67  Patricia Hill Collins and Valerie Chepp, ‘Intersectionality’ in Georgina Waylen, Karen Celis, Johanna Kantola, and Laurel Weldon (eds), Oxford Handbook of Gender and Politics (OUP 2013) 58–9.

68  See eg Sharanya Mohan, ‘The Battle after the War: Gender Discrimination in Property Rights and Post-Conflict Property Restitution’ (2011) 36 Yale Journal of International Law 461; Sandra Joireman, ‘Intergenerational Land Conflict in Northern Uganda: Children, Customary Law and Return Migration’ (2018) 33 Africa 81.

69  Collins and Chepp (n 67) 60.

70  See eg LeMaitre and Sandvik (n 30) on experiences of indigenous communities in Colombia.

71  Luke Lee, ‘The Cairo Declaration of Principles of International Law on Compensation to Refugees’ (1993) 87 AJIL 157; Hannah Garry, ‘The Right to Compensation and Refugee Flows: A “Preventive Mechanism” in International Law?’ (1998) 10 IJRL 97.

72  Bradley (n 1).

73  ibid.

74  ‘Former Manus Island Detainees Paid $70 million in Compensation’, SBS (6 June 2018)

<https://www.sbs.com.au/news/former-manus-island-detainees-paid-70-million-in-compensation> accessed 12 February 2020.

75  UNGA res 60/147 (21 March 2006) s IX, para 19. See also Bradley (n 1) on return as a form of redress. On asylum and durable solutions as remedies, see James Souter, ‘Towards a Theory of Asylum as Reparation for Past Injustice’ (2013) 62 Political Studies 326; James Souter, ‘Durable Solutions as Reparations for the Unjust Harms of Displacement: Who Owes What to Refugees?’ (2014) 27 JRS 171.

76  Vidal López (n 30); LeMaitre and Sandvik (n 30).

77  ibid.

78  Federico Andreu-Guzmán, ‘Criminal Justice and Forced Displacement: International and National Perspectives’ in Roger Duthie (ed), Displacement and Transitional Justice (SSRC 2012) 233–78.

79  Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (Rome Statute), arts 7(2)(d), 7(1)(d). On displacement as a war crime under the Rome Statute, see arts 8(2)(a)(vii) and 8(2)(e)(viii).

80  Paige Morrow and Jennifer Winstanley, ‘The Challenge of Prosecuting Forced Displacement at the International Criminal Court: The Case of Kenya’ in Megan Bradley (ed), Forced Migration, Reconciliation and Justice (McGill-Queen’s University Press 2015).

81  Owen Bowcott, ‘ICC Submission Calls for Prosecution of EU Over Migrant Deaths’, The Guardian (3 June 2019) <https://www.theguardian.com/law/2019/jun/03/icc-submission-calls-for-prosecution-of-eu-over-migrant-deaths> accessed 12 February 2020.

82  Luke Lee, ‘The Right to Compensation: Refugees and Countries of Asylum’ (1986) 80 AJIL 532; Guy S Goodwin-Gill and Selim Can Sazak, ‘Footing the Bill: Refugee-Creating States’ Responsibility to Pay’, Foreign Affairs (29 July 2015).

83  For an initial discussion, see Megan Bradley, ‘More than Misfortune: Recognizing Natural Disasters as a Concern for Transitional Justice’ (2017) 11 International Journal of Transitional Justice 400.

84  For discussion of the contested approach to this issue laid out in the Peninsula Principles, see Scott Leckie and Chris Huggins (eds), Repairing Domestic Climate Change Displacement: The Peninsula Principles (Routledge 2017).