How does transitional justice fit within broader responses to the problem of displacement? Conflict-induced displacement is an important factor in contexts in which transitional justice operates, yet displacement has received little attention in the literature and practice of transitional justice. This article argues that transitional justice can and should address displacement, but in doing so needs to take account of and establish links with other relevant actors.
Displacement and transitional justice both include focus on DDR, rule of law, combating impunity, restitution, reconciliation, reconstruction and institutional reform. Displacement is integrally linked to the human rights violations that transitional justice mechanisms seek to address: rights violations can lead to displacement; displacement itself is a rights violation; and displaced people are often particularly vulnerable to such violations.
Some transitional justice mechanisms have addressed displacement. Examples include truth commissions that include displacement in their ambit; restitution programmes for the displaced; and criminal prosecutions for those guilty of forcing displacement. However, there has often not been sufficient engagement with displaced persons.
In contexts of large-scale displacement, to what extent can transitional justice measures respond to the experiences, needs and justice claims of the displaced? Challenges include the following:
- Information about transitional justice measures is often not available outside the country implementing them, which can prevent refugees from making claims.
- When refugees are repatriated, identities formed through the experience of displacement, perhaps untouched by transitional justice efforts, can lead to new social fault lines.
- Displacement is often an immense problem in transitional countries, involving large numbers of people. Its scale and complexity mean that transitional justice measures have limited capacity to deal with it.
- Use of the discourse and tools of transitional justice in certain displacement contexts may risk raising unrealistic expectations. It may also create tensions between those defined as victims and therefore eligible for redress and those who are not.
- Transitional justice will often be pursued in contexts in which different types of efforts are being made to deal with displacement, and tensions may arise between transitional justice measures and the work of displacement actors.
A comprehensive and coherent response to displacement in transitional contexts is one that includes, at minimum, human rights, humanitarian, human security, peacebuilding, development and transitional justice policies. Such a response accounts for the ways in which these different policies can reinforce or undermine each other and involves coordination to maximise synergies and minimise tensions. Thus, coordination and cooperation between transitional justice practitioners and other actors can help transitional justice measures to engage with displacement. In particular:
- Logistical and other assistance from humanitarian and human rights organisations to displaced populations could help them overcome obstacles to accessing justice. Appropriate sequencing, division of labour and dialogue may help to minimise tensions.
- In some situations there may be reasons to be cautious about cooperation. For example, humanitarian organisations may worry that public cooperation with courts compromises their neutrality. Tools that can minimise potentially negative effects of cooperation include the confidentiality of witnesses, nondisclosure of information to the public and closed court sessions.
- Transitional justice measures can have a mutually reinforcing relationship with other types of interventions. For example, they can contribute to ‘just return’ (helping to put returning refugees on an equal footing with others and restore a normal relationship of rights and duties between the state and its returning citizens); and to ‘durable solutions’ to displacement (long-term safety and security, restitution/compensation for lost property and an environment of normal economic and social conditions). Likewise, other responses to displacement can help to facilitate a more conducive environment for transitional justice.
- Addressing displacement does not necessarily require a significant expansion of the transitional justice agenda. However, it does call for change in the way that transitional justice practitioners engage with displaced persons, respond to their claims and relate to other actors working on displacement.
