DUTHIE, TJ and Displacement

The International Journal of Transitional Justice, Vol.
5, 2011, 241–261,
doi:10.1093/ijtj/ijr009
Advance Access publication: 9 June 2011
Transitional Justice and Displacement
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Roger Duthie*
Abstract1
The displacement of people from their homes and communities as a result of conflict
and human rights abuses is an important factor in the contexts in which transitional
justice normally operates. Yet, it is one that has not figured prominently in either the
literature or the practice of transitional justice. This article is an attempt to think through
how transitional justice fits within the broader response to the problem of displacement.
It argues that transitional justice can and should address displacement, but in doing so it
must take into account and establish links with other relevant actors. The first section of
the article considers some of the reasons why displacement, as a human rights issue, is of
concern to transitional justice, as well as some examples of transitional justice measures
that have dealt with displacement. The following two sections raise questions about the
capacity of transitional justice measures meaningfully to engage displaced persons and
their concerns. The next three sections then try to identify some linkages between
transitional justice measures and the work of displacement actors, including potential
tensions, opportunities for cooperation and coordination and avenues of mutual re-
inforcement. The article concludes with a broader perspective on how transitional justice
may conceptually fit within a comprehensive and coherent approach to displacement.
Introduction
The displacement of people from their homes and communities as a result of
conflict and repression is an important factor in the contexts in which transitional
justice normally operates. Yet, it is one that has not figured prominently in either
the literature or the practice of transitional justice. Furthermore, while displace-
ment raises challenges for the implementation of transitional justice measures, it
is a problem that can only be addressed adequately by drawing closer links be-
tween justice measures and other types of policy interventions in postconflict and
transitional situations. As displacement experts have pointed out, ‘the develop-
ment of more comprehensive and cohesive strategies to address forced migration
* Senior Associate, International Center for Transitional Justice, USA. Email: rduthie@ictj.org
1
The author would like to thank Paige Arthur, Megan Bradley, Pablo de Greiff, Elizabeth Ferris,
Jacqueline Geis, Eduardo Gonzalez, Clara Ramirez-Barat, Debbie Sharnak, Andrew Solomon and
the IJTJ editors and reviewers for their helpful comments on earlier versions of this article. The
views expressed here do not represent those of the International Center for Transitional Justice
(ICTJ). Part of the material in this article appears in Dilek Kurban, Mesut Yeǧen, Virginie Ladisch
and Roger Duthie, On the Verge of Justice: The State and the Kurds in the Aftermath of Forced
Migration (Istanbul: TESEV, 2011).
! The Author (2011). Published by Oxford University Press. All rights reserved.
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242 R. Duthie
in its complexity’ is needed.2 Practitioners, policy makers and researchers in both

transitional justice and displacement, however, have only recently begun to con-
sider the relationship between their areas of work.3 In December 2009, for ex-
ample, the UN revised its Framework on Durable Solutions for Internally
Displaced Persons, which now devotes an entire section to access to effective
remedies and justice, including transitional justice measures.4
This article outlines some of the ways in which transitional justice may fit within
strategies to address displacement. I argue that transitional justice can and should
address displacement and that in doing so it must take into account and establish
links with other actors dealing with the problem. The first section of the article
considers some of the reasons why displacement, as a human rights issue, is of
concern to transitional justice, as well as some examples of transitional justice
measures that have dealt with displacement. The following two sections raise
questions about the capacity of transitional justice measures meaningfully to
engage displaced persons and their concerns. The next three sections then try
to identify some linkages between transitional justice measures and the work of
displacement actors, including potential tensions, opportunities for cooperation
and coordination and avenues of mutual reinforcement. The final section takes a
broader perspective on how transitional justice may conceptually fit within a
comprehensive and coherent approach to displacement.
While I argue that transitional justice has legitimate reasons to address dis-
placement as one particular aspect of its work, as well as to establish links with
other actors that are doing so, it is important to keep in mind that more than just
practical limitations and technical obstacles may hinder such efforts. Transitional
2
Susan F. Martin, Patricia Weiss Fagen, Kari M. Jorgensen, Andrew Schoenholtz and
Lydia Mann-Bondat, The Uprooted: Improving Humanitarian Responses to Forced Migration
(Lanham, MD: Lexington Books, 2005), 3. See also, António Guterres, ‘Millions Uprooted:
Saving Refugees and the Displaced,’ Foreign Affairs 87(5) (2008): 90–99, in which the UN high
commissioner for refugees calls for the establishment of a ‘cooperative legal and policy
framework.’
3
At a 2007 meeting on the future agenda for research on internal displacement, for example, the
need for research on links to transitional justice was specifically discussed. See the meeting report,
Brookings-Bern Project on Internal Displacement, Researching Internal Displacement: State of the
Art and an Agenda for the Future (March 2007). Another meeting, at ICTJ in New York in
2009, served as the initial discussion for a now ongoing ICTJ research project on the topic,
supported by the Swiss Federal Department of Foreign Affairs. See, International Center
for Transitional Justice, ‘Transitional Justice and Displacement,’ http://www.ictj.org/en/
research/projects/research9/index.html (accessed 30 March 2011). In December 2006, the
African Transitional Justice Research Network hosted a workshop in Kampala, Uganda, on
‘Forced Migration and Transitional Justice: Research Challenges.’ Recent literature has also started
to engage with the issue. See, for example, Susan Harris Rimmer, Reconceiving Refugees and
Internally Displaced Persons as Transitional Justice Actors (Canberra: Centre for International
Governance and Justice, 2009); Andrew Solomon, ‘Justice, Accountability, and the Protection
of Displaced Persons’ (paper prepared for the Annual Course on Forced Migration, Mahanirban
Calcutta Research Group, Kolkata, India, 1 December 2009); Megan Bradley, The Conditions of
Just Return: State Responsibility and Restitution for Refugees (Oxford: Refugee Studies Centre,
2005); Megan Bradley, ‘FMO Research Guide: Reparations, Reconciliation and Forced
Migration,’ Forced Migration Online (October 2006), http://www.forcedmigration.org/guides/
fmo044/fmo044.pdf (accessed 30 March 2011).
4
‘Framework on Durable Solutions for Internally Displaced Persons,’ UN Doc. A/HRC/13/21/
Add.4 (29 December 2009).
International Journal of Transitional Justice, Vol. 5, 2011, 241–261

Transitional Justice and Displacement 243
justice actors do not necessarily share the goals and approaches of humanitarian,
peacebuilding or development actors with regard to displaced persons.
Complementarity is desirable, therefore, but to some extent gaps and tensions
should be expected.
Redressing Human Rights Violations Associated with

Displacement
Transitional justice refers to a set of measures that can be implemented to
redress the legacies of massive human rights abuses that occur during armed
conflict and under authoritarian regimes, where ‘redressing the legacies’
means, primarily, giving force to human rights norms that were systematically
violated.5 The different measures that together make up a holistic approach to
transitional justice seek to provide recognition for victims, foster civic trust
and promote possibilities for peace, reconciliation and democracy. They in-
clude criminal prosecutions of those most responsible for violations; repar-
ations programs that distribute a mix of material and symbolic benefits to
victims (including compensation and apologies); restitution programs that
seek to return housing, land and property to those who were dispossessed;
truth-telling initiatives that investigate and report on periods of past abuse;
and justice-sensitive security system reform that seeks to transform the mili-
tary, police and judiciary responsible for past violations.
The term ‘transitional justice’ emerged in the late 1980s and early 1990s as a
particular way of addressing serious human rights violations and facilitating the
political transitions to democracy underway at that time in Latin America and
Eastern Europe. As such, the particular violations it dealt with were civil and
political and not economic and social.6 Since then, the measures associated
with transitional justice have been increasingly applied both in postconflict
contexts (in addition to postauthoritarian contexts) and in countries that
have not undergone significant political transition and those that are still experi-
encing conflict. This expansion of the contexts in which transitional justice is
applied means that it is more and more likely to be implemented in situations
where problems such as massive displacement of people are of significant
concern.7
Displacement is a problem integrally linked to massive human rights violations
in the following senses: widespread human rights violations often lead to dis-
placement; systematic displacement can itself constitute a serious human rights
5
Pablo de Greiff, ‘Theorizing Transitional Justice,’ in NOMOS L: Transitional Justice, ed. Melissa
Williams, Rosemary Nagy and Jon Elster (New York: New York University Press, forthcoming).
6
Zinaida Millar, ‘Effects of Invisibility: In Search of the “Economic” in Transitional Justice,’
International Journal of Transitional Justice 2(3) (2008): 266–291.
7
On the history of the concept of transitional justice, see, Paige Arthur, ‘How “Transitions”
Reshaped Human Rights: A Conceptual History of Transitional Justice,’ Human Rights
Quarterly 31(2) (2009): 321–367.

244 R. Duthie
violation, including a crime against humanity; and displaced people are often
particularly vulnerable to human rights violations.8 Since transitional justice
actors seek to redress the legacies of massive human rights violations, they have
reason to address displacement.
The fact that human rights violations lead to displacement is evident from the
very definitions of the term ‘internally displaced persons’ in the UN’s Guiding
Principles on Internal Displacement9 and the term ‘refugees’ in the Geneva
Refugee Convention.10 Certain violations in particular, such as the comprehen-
sive destruction of homes and property,11 are more likely to lead to displacement
than others, which is why they are often committed as part of ethnic cleansing
campaigns. Furthermore, when it is the result of intentional policy, displacement
can constitute a serious human rights violation in itself. According to the statutes
of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the
International Criminal Court (ICC), deportation or forcible transfer constitutes a
crime against humanity. Unlawful deportation or transfer of a civilian also con-
stitutes a grave breach of the Geneva Conventions,12 and the recently signed
African Union Convention for the Protection and Assistance of Internally
Displaced Persons in Africa requires the criminalization of acts of arbitrary dis-
placement.13 As Erin Mooney puts it, ‘A right not to be arbitrarily displaced has
been articulated.’14 In addition, displacement often leaves its victims vulnerable
to other human rights violations. The displaced, without the basic protection
8
Maria Stavropoulou, ‘Displacement and Human Rights: Reflections on UN Practice,’ Human
Rights Quarterly 20(3) (1998): 515–554.
9
‘Persons or groups of persons who have been forced or obliged to flee or to leave their homes or
places of habitual residence, in particular as a result of or in order to avoid the effects of armed
conflict, situations of generalized violence, violations of human rights or natural or human-made
disasters, and who have not crossed an internationally recognized state border.’ ‘Guiding
Principles on Internal Displacement,’ UN Doc. E/CN.4/1998/53/Add.2 (11 February 1998).
10
According to Article 1 of the Convention Relating to the Status of Refugees, a refugee is a person
who, ‘owing to wellfounded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of his nation-
ality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the country of his former habitual
residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’
11
The International Criminal Tribunal for the former Yugoslavia found that this may constitute the
crime against humanity of persecution. Prosecutor v. Zoran Kupreskić, Mirjan Kupreskić, Vlatko
Kupreskić, Drago Josipović, Dragan Papić and Vladimir Santić, Judgment, Case No. IT-95-16-T,
ICTY (14 January 2000).
12
ICTY Statute, Article 5(d)(1); ICC Statute, Article 7(1)(d); Geneva Convention IV, Article 147. See
also, Jan Willms, ‘Without Order, Anything Goes? The Prohibition of Forced Displacement in
Non-International Armed Conflict,’ International Review of the Red Cross 91(875) (2009):
547–565.
13
Andrew Solomon, ‘An African Solution to Internal Displacement: AU Leaders Agree to Landmark
Convention,’ Brookings-Bern Project on Internal Displacement briefing (23 October 2009).
14
Erin Mooney, ‘The Concept of Internal Displacement and the Case for Internally Displaced
Persons as a Category of Concern,’ Refugee Law Quarterly 24(3) (2005): 15. Principle 6 of the
Guiding Principles states, ‘Every human being shall have the right to be protected against being
arbitrarily displaced from his or her home or place of habitual residence.’ While the Guiding
Principles generally compile and restate existing international law to apply these standards to the
plight of internally displaced persons, the right not to be arbitrarily displaced was the one aspect
that was new, and it was the subject of intense debate.

provided by their homes, livelihoods, communities and authority structures, are

‘especially vulnerable to acts of violence and human rights violations, including
round-ups, forced conscription and sexual assault.’15 Women and children, who
make up between 75 and 80 percent of the displaced, are particularly vulnerable to
sexual and gender-based violence, trafficking and military recruitment.16
Determining the precise relationship between abuses and displacement may in
fact be an area where transitional justice measures can make a contribution, as, for
example, distinguishing between displacement caused by conflict in general, by
specific human rights abuses or as a result of an intentional policy can be difficult.
On the basis of these links to human rights violations, some transitional justice
measures have dealt with displacement:
• Several truth commissions have included displacement within their ambit,
including those in Guatemala, Timor-Leste, Sierra Leone and Liberia.
Timor-Leste’s Commission for Reception, Truth and Reconciliation exam-
ined the use of displacement as a weapon of war and its impact on civilians,
including loss of homes, land, livelihoods, access to healthcare and other basic
services, and widespread famine and death. It found that displacement was
widespread, severely affected the population and constituted a human rights
violation. More people died from the effects of displacement than from any-
thing else during the occupation.17 Similarly, the Truth and Reconciliation
Commissions in Sierra Leone and Liberia found that forced displacement was
the most commonly reported human rights violation in those conflicts, ac-
counting for 19.8 percent and 36 percent of the total reported violations,
respectively.18
• Reparations programs may distribute benefits to displaced persons for the
human rights violations that caused them to flee their homes, for those they
suffered while displaced or for the crime of displacement itself.19 There are
few examples of reparations programs providing compensation for
15
Ibid., 17.
16
Edward Newman, ‘Refugees, International Security, and Human Vulnerability: Introduction and
Survey,’ in Refugees and Forced Displacement: International Security, Human Vulnerability, and the
State, ed. Edward Newman and Joanne van Selm (New York: UN University Press, 2003); Mooney,
supra n 14.
17
Commission for Reception, Truth and Reconciliation in East Timor, ‘Forced Displacement and
Famine,’ in Chega! Final Report of the Commission for Reception, Truth and Reconciliation in East
Timor (2005).
18
Sierra Leone Truth and Reconciliation Commission, Final Report of the Sierra Leone Truth and
Reconciliation Commission, vol. 2 (2004); Truth and Reconciliation Commission of Liberia, Final
Report of the Truth and Reconciliation Commission of Liberia, vol. II (2009).
19
The right to a remedy for human rights violations is established in international law and UN
documents, some of which, such as the Guiding Principles on Internal Displacement (Principle
29) and the UN Principles on Housing and Property Restitution for Refugees and Displaced
Persons (Principle 2), provide specific guidance with regard to reparations for forced migration.
See, Bradley, ‘FMO Research Guide,’ supra n 3. The Convention for the Protection and Assistance
of Internally Displaced Persons in Africa ‘obliges governments to provide compensation and other
reparations to remedy the harm suffered by persons as a result of their displacement.’ Solomon,
supra n 13.

246 R. Duthie
displacement itself, but the UN Compensation Commission represents ‘an

important example of large-scale, institutionalized restitution for refugees.’20
In Turkey, the Law on Compensation for Losses Resulting from Terrorism
and the Fight against Terrorism provides compensation to internally dis-
placed persons and has been described as ‘the most significant step taken to
date towards addressing the problem of internal displacement in Turkey.’21 In
Guatemala, the Commission for Historical Clarification recommended that
victims of forced displacement receive reparations, and the National
Reparations Program includes forced displacement as a crime that merits
reparation.22 Peru’s Truth and Reconciliation Commission also recom-
mended that all forcibly displaced persons from the conflict be recognized
as victims and ‘potentially eligible for compensation.’23
• Restitution programs for the displaced, which may restore lost land, homes
and property, are more common. Since the end of the Cold War, interest
in material restitution has increased as a result of the rise of armed con-
flicts involving ethnic cleansing campaigns. Restitution has ‘risen to prom-
inence as an integral response to such displacement-related human rights
violations.’24 In postwar Bosnia, for example, restitution was ‘an overtly
human rights based remedy for resolving displacement,’ which involved
200,000 claimed homes and supported the return of approximately half of
those displaced by the conflict.25 Some have argued that to consider restitu-
tion an explicit part of a transitional justice program, in addition to a tool to
promote the return process, may mean an increased focus on the displaced as
victims of serious and/or gross violations of human rights. It may also lead to
‘the incorporation of restitution issues in the policy and programming agen-
das of public institutions dealing with transitional justice at the national
level,’26 thus strengthening restitution efforts overall. This justice element
may be important in the long run. In Burundi, for example, as one report
suggests,
20
Bradley, ‘The Conditions of Just Return,’ supra n 3 at 12. ‘The UNCC was established to process
claims and pay compensation for loss, damage or injury suffered by individuals, corporations,
Governments and international organizations as a direct result of Iraq’s unlawful invasion and
occupation of Kuwait.’ Hans van Houtte, Hans Das and Bart Delmartino, ‘The United Nations
Compensation Commission,’ in The Handbook of Reparations, ed. Pablo de Greiff (Oxford:
Oxford University Press, 2006), 333.
21
Turkish Economic and Social Studies Foundation and Norwegian Refugee Council/Internal
Displacement Monitoring Centre, Overcoming a Legacy of Mistrust: Towards Reconciliation be-
tween the State and the Displaced (2006), 33.
22
See, Claudia Paz y Paz Bailey, ‘Guatemala: Gender and Reparations for Human Rights Violations,’
in What Happened to the Women? Gender and Reparations for Human Rights Violations, ed. Ruth
Rubio-Marı́n (New York: Social Science Research Council, 2006).
23
Internal Displacement Monitoring Centre, Peru: Reparations Begin but IDPs Excluded (January
2009), 5.
24
Rhodri C. Williams, The Contemporary Right to Property Restitution in the Context of Transitional
Justice (New York: International Center for Transitional Justice, 2007), 5.
25
Ibid., 47.
26
Jemima Garcı́a-Godos, ‘Addressing Land Restitution in Transitional Justice,’ Nordic Journal of
Human Rights 2 (2010): 141.

systems for resolving disputes over competing claims for land need to be con-
structed in such a way as to acknowledge and, to the extent possible, address the
serious human rights violations of the past. If they are not seen to be just, they
risk sowing the seeds of further conflict.27
• Criminal prosecutions can target the perpetrators of human rights violations

that lead to the displacement of civilians, or they can target displacement as a
crime itself, as in a number of cases at the ICTY and the second case at the
Extraordinary Chambers in the Courts of Cambodia. Such trials may be ne-
cessary in order for displaced persons to receive an accompanying civil
remedy for the abuses they suffered. The UN high commissioner for
human rights has argued that criminal prosecution, through its potential
deterrence effect, is also ‘a very important aspect of the long-term solution
to the problem of human rights and forced displacement.’28
As these examples illustrate, transitional justice measures have in fact addressed
displacement as one aspect of their work, by dealing mainly with the civil and
political human rights violations that are associated with displacement or with the
crime of forced displacement itself. This has not necessarily meant a significant
expansion of the field beyond its primary focus on civil and political rights vio-
lations, although it may involve indirectly addressing the wider socioeconomic
rights violations associated with displacement as part of the broader context in
which the former type occurs. The historical focus of transitional justice on civil
and political violations in part explains why the field has had limited engagement
with displacement, but there are other reasons, too. These include the practical
challenges of addressing such a massive and complicated problem and of coordi-
nating with other actors – with different mandates – already doing so. These
reasons, along with the positive contributions transitional justice can make, are
discussed in the following sections.
Engaging the Displaced

If transitional justice measures are applied in contexts where displacement has
occurred on a massive scale, a question arises as to what extent these measures can
meaningfully engage with displaced persons, through avenues such as consult-
ation, participation and access. Such engagement is important in ensuring that
justice measures actually respond to the particular experiences, needs and justice
claims of the displaced. A recent study in Uganda, for example, shows that
27
Lucy Hovil, ‘Two People Can’t Share the Same Pair of Shoes’: Citizenship, Land and the Return of
Refugees to Burundi (New York: International Refugee Rights Initiative and Social Science
Research Council, 2009), 38. Of course, restitution programs, whether or not they incorporate
a justice element, can lead to conflict, regarding for example the issue of the rights of secondary
occupants. This may particularly be the case in contexts of ongoing conflict with successive waves
of conflict.
28
Navanethem Pillay, ‘International Criminal Tribunals as a Deterrent to Displacement,’ in Human
Rights and Forced Displacement, ed. Anne F. Bayefsky and Joan Fitzpatrick (The Hague: Martin
Nijhoff Publishers, 2000), 262. Pillay was president of the International Criminal Tribunal for
Rwanda when she wrote this statement.

248 R. Duthie
urban-based displaced persons believe that any transitional justice accompanying

a return process should be understood in terms of not only individual and com-
munity wellbeing but also ‘healing the land and restoring a balanced relationship
with the spiritual realm.’29 Furthermore, given the prevalence of women and
children among displaced populations, it may be particularly important to redress
gender-based violence and incorporate an overall gender perspective into transi-
tional justice efforts.30 Without engaging with these groups, such concerns may
not be adequately addressed.31
The truth commissions mentioned above all engaged directly with internally
displaced persons and/or refugees in neighboring countries. Guatemala’s
Commission was ‘one of the more successful [commissions] in terms of integrat-
ing the perspectives of displaced persons,’ with investigators traveling throughout
the country to interview thousands of the displaced.32 In Liberia, the Commission
gathered statements from hundreds of individual refugees about such issues as
‘why they left home, the human rights abuses they suffered, opinions about the
Liberian conflict, and what justice and reconciliation measures are needed.’33 In
general, diasporas, including refugees, have participated in truth commissions in
various ways, ‘as conceivers of the process, statement givers in the data collection
process, advocates for justice.’34 The Haitian diaspora community, for example,
has been described as ‘the primary driver of a truth commission in that country.’35
Sufficient engagement with displaced persons has often not been the case, how-
ever. For example, refugees and internally displaced persons are ‘typically side-
lined during reparations negotiations, and it is not surprising, therefore, that their
concerns have so often been overlooked.’36 In Peru, one of the reasons that rep-
arations have still not been provided to displaced persons is that they have ‘not
had significant input into the process.’37 An International Center for Transitional
Justice paper argues that diaspora communities have ‘significant potential’ to play
29
Beyond Juba Project, Violence, Exile, and Transitional Justice: Perspectives of Urban IDPs in
Kampala (August 2009), 15. For a recent effort to document the views of refugees from Darfur
on issues related to justice through a survey and interviews, see, 24 Hours for Darfur, Darfurian
Voices: Documenting Darfurian Refugees’ Views on Issues of Peace, Justice, and Reconciliation (July
2010).
30
Moses Chrispus Okello and Lucy Hovil, ‘Confronting the Reality of Gender-based Violence in
Northern Uganda,’ International Journal of Transitional Justice 1(3) (2007): 433–443.
31
See, Beyond Juba Project, Why Being Able to Return Home Should Be Part of Transitional Justice:
Urban IDPs in Kampala and Their Quest for a Durable Solution (March 2010).
32
Bradley, ‘FMO Research Guide,’ supra n 3 at sec. 4.2. See, Commission for Historical Clarification,
‘Conclusions and Recommendations,’ in Guatemala: Memory of Silence: Report of the Commission
for Historical Clarification (1999).
33
Laura A. Young and Rosalyn Park, ‘Engaging Diasporas in Truth Commissions: Lessons from the
Liberia Truth and Reconciliation Commission Diaspora Project,’ International Journal of
Transitional Justice 3(3) (2009): 359.
34
Ibid., 349.
35
Ibid., 348.
36
Megan Bradley, ‘Redressing Refugees: The Emergence of International Norms on Reparations for
Returnees’ (paper prepared for the 50th International Studies Association Annual Conference,
New York, NY, 15–18 February 2009), 4.
37
Internal Displacement Monitoring Centre, supra n 23 at 7.

an important role in judicial processes and the fight against impunity – a potential
that has ‘not yet been fulfilled.’38
In some cases, information is not available about transitional justice measures
outside the country implementing them, which can prevent refugees from making
claims.39 Other material and logistical challenges faced by diaspora communities
include a lack of human and financial resources, as well as weak levels of mobil-
ization and coordination.40 One obstacle in particular concerns documentation.
Whether people are displaced within or across borders, their frequent lack of
documentation, which is often lost or confiscated, can create difficulties for res-
titution and reparations programs.41 In Guatemala, the procedure for requesting
compensation through the National Reparations Program is officially free, but ‘in
practice, it demands a large monetary investment in travel, documentation, trans-
lators and so forth. Often, victims must incur debt to complete the process.’42
This lack of engagement with displaced persons may have important conse-
quences down the line, if those persons are therefore excluded from the processes
that transitional justice measures seek to facilitate. As Bronwyn Harris explains
with regard to refugees, national-level justice and reconciliation measures may
have limited reach across borders to deal with what can be regional issues. As she
argues,
A country moving towards democracy may implement a transitional justice process
and national reconciliation strategy that seeks to repair damaged relationships. This
will not however accommodate refugees living in exile, and these groups of people will
automatically be excluded from the internal national focus on reconciliation. This
holds the potential for conflict when such exiles eventually return home.43
When and if refugees are repatriated, their identities formed through the experi-
ence of displacement, perhaps untouched by transitional justice efforts in the
home country, can lead to new social fault lines.
Acknowledging the Limitations of a Transitional

Justice Approach to Displacement
Since displacement and human rights violations are integrally linked, transitional
justice measures have reason to respond to displacement. Displacement, however,
is often an immense problem in transitional countries, and the sheer scale and
complexity of the problem mean that transitional justice measures have a limited
38
Elyda Mey, Cambodian Diaspora Communities in Transitional Justice (New York: International
Center for Transitional Justice, 2008), 3.
39
Bradley, supra n 36.
40
Mey, supra n 38.
41
Mooney, supra n 14.
42
Lieselotte Viaene, ‘Life is Priceless: Mayan Q’eqchi’ Voices on the Guatemalan National
Reparations Program,’ International Journal of Transitional Justice 4(1) (2010): 16.
43
Bronwyn Harris, Between a Rock and a Hard Place: Violence, Transition and Democratisation: A
Consolidated Review of the Violence and Transition Project (Johannesburg: Centre for the Study of
Violence and Reconciliation, 2006), 36.

250 R. Duthie
capacity to deal directly with the issue, let alone to resolve the many challenges
faced by displaced populations. This is particularly the case with measures that
deal most directly with victims, such as reparations or restitution programs, be-
cause the large numbers of people displaced will present resource and capacity
challenges.
Providing financial compensation for the lost property and suffering of the
displaced, for example, often will be far beyond the capacity of transitional gov-
ernments, particularly in developing countries. According to Megan Bradley,
‘Most of the countries grappling with forced migration problems simply
cannot afford to provide financial compensation to the displaced,’ which is one
reason why ‘in practice compensation is a rare form of redress for the displaced.’44
In Colombia, where between 3 and 4 million people have been displaced, design-
ing and implementing a viable reparations program to deal with such large num-
bers would represent a ‘significant technical challenge.’45
More structural constraints may also limit the ability of justice measures effect-
ively to reach displaced persons, particularly concerning groups disadvantaged
on the basis of gender or ethnicity. Again in Colombia, for instance, legal and
social practices shaped by historical discrimination against rural women and
by patriarchal structures can mean that formerly displaced women face
difficulties in proving tenancy of land, and therefore in accessing restitution
and compensation.46
Use of the discourse and tools of transitional justice in certain displacement
contexts may therefore run the risk of overloading measures and raising expect-
ations among victims beyond what the measures can deliver, particularly during
ongoing conflicts. It may also create tensions between those displaced persons
who are defined as victims and therefore eligible for certain forms of redress and
those who are not. Such limitations must be kept in mind when transitional
justice measures are applied to the problem of displacement. Nevertheless, the
capacity of justice measures such as trials or truth commissions to address dis-
placement could be increased through the use of new technologies and statistical
and demographic analysis.
Minimizing Potential Tensions with Other Policy

Interventions
Transitional justice will often be pursued in contexts in which different types of
efforts are being made to deal with displacement, such as those of humanitarian,
44
Bradley, ‘FMO Research Guide,’ supra n 3 at sec. 3.2.
45
Elizabeth Ferris, ed., ‘Internal Displacement and the Construction of Peace: Summary Report’
(summary of proceedings from the conference on Internal Displacement and the Construction of
Peace, Bogota, Colombia, 11–12 November 2008), 10.
46
Donny Meertens and Margarita Zambrano, ‘Citizenship Deferred: The Politics of Victimhood,
Land Restitution and Gender Justice in the Colombian (Post?) Conflict,’ International Journal of
Transitional Justice 4(2) (2010): 189–206.

development and peacebuilding practitioners. Tensions may arise in such cases

between transitional justice and these other initiatives.
Criminal prosecutions, for example, may be perceived as detrimental to the
efforts of humanitarian actors to provide protection and assistance to the dis-
placed and to facilitate processes of return. As noted by Anne-Marie La Rosa of
the International Committee of the Red Cross,
If humanitarian organizations are associated with judicial bodies in the field, those
individuals who are liable to prosecution are likely to feel threatened and may attempt
to neutralize them. They may decide to cease all co-operation, denying or restricting
access to victims.47
For humanitarian organizations, suggests Peter Bell, former president of CARE,

‘perhaps the most sensitive issue’ concerning ICC investigations and prosecutions
is the security of the organizations’ personnel and those they are trying to help.
‘Whether or not they speak out’ about atrocities, Bell says, ‘they may be suspected
of having done so or simply be “scape-goated,” putting them at physical risk,
putting their organizations at risk of expulsion from the country.’48 Thus, the
association (real or not) with processes of criminal justice may inhibit humani-
tarian organizations’ access to victims, thereby limiting their ability to provide
protection and assistance to those victims who are displaced. Indeed, the involve-
ment of the ICC in northern Uganda and Darfur has had a negative impact on the
access of humanitarian groups in those areas.49 ‘Attacks on humanitarian workers
just after the ICC issued the first arrest warrants in Uganda,’ argues La Rosa,
‘would seem to suggest that individuals fearing prosecution by the ICC regard
organizations working in the field as auxiliaries in the inquiry, potential inform-
ants or key witnesses for the prosecution.’50
Transitional justice may also create disincentives for return. Prosecutions that
target suspected perpetrators whose crimes contributed to displacement but who
might be physically among the displaced may discourage people from return-
ing.51 In the Great Lakes region of Africa, for example, some Hutu refugees who
fled Rwanda in 1994 are reluctant to return because they fear that gacaca courts
47
Anne-Marie La Rosa, ‘Humanitarian Organizations and International Criminal Tribunals, or
Trying to Square the Circle,’ International Review of the Red Cross 88(861) (2006): 181.
48
Peter D. Bell, ‘International Relief and Development NGOs and the International Justice System’
(paper prepared for the Consultative Conference on International Criminal Justice, New York,
NY, 9–11 September 2009), 4–5.
49
Thomas Unger and Marieke Wierda, ‘Pursuing Justice in Ongoing Conflict: A Discussion of
Current Practice,’ in Building a Future on Peace and Justice: Studies on Transitional Justice, Peace
and Development: The Nuremberg Declaration on Peace and Justice, ed. Kai Ambos, Judith Large
and Marieke Wierda (Berlin: Springer, 2009); Elizabeth Ferris, The Potential Impact of
the Indictment of Bashir on Darfur’s Humanitarian Situation (Washington, DC: Brookings
Institution, 2008).
50
La Rosa, supra n 47 at 170.
51
Christopher McDowell, ‘Displacement, Return, and Justice in the Creation of Timor Leste,’ in
Catching Fire: Containing Forced Migration in a Volatile World, ed. Nicholas Van Hear and
Christopher McDowell (Lanham, MD: Lexington Books, 2006).

252 R. Duthie
will find them guilty by association with perpetrators of genocide.52 Transitional

justice practitioners may, in some cases, however, be able to take steps to min-
imize such tensions. For example, the UN administration in Timor-Leste issued a
policy on justice and return procedures in order to clarify the procedural guide-
lines for returning refugees and to counter misinformation. Part of this clarifica-
tion was the distinction between serious and less serious crimes. The approach
was based on the
understanding that those who have done little wrong will require less incentives to
return more quickly, whereas those who have greater reason to fear return will stay
longer in camps and require greater assurances about the transitional justice mech-
anisms which they will face.53
Opportunities for Coordination and Cooperation

Coordination and cooperation between transitional justice practitioners and
those working more directly on displacement may help transitional justice meas-
ures to engage with the issue and with displaced persons. In Timor-Leste, for
example, specific institutional exchanges and cooperation between the
Commission for Reception, Truth and Reconciliation and the UN Office of the
High Commissioner for Refugees (UNHCR) assisted local reintegration and rec-
onciliation efforts,54 and in Sierra Leone, UNHCR helped the Truth and
Reconciliation Commission reach refugees with funding and facilitation.55
Elsewhere, UNHCR has provided training to the military, the police and
human rights entities, and cooperated with criminal tribunals. According to
UNHCR Assistant High Commissioner for Protection Erika Feller:
Given that UNHCR is a field organization operating in many situations of interest to
such tribunals, and because we work with the witnesses to the violations they may be
investigating, the Office is seen to have unique knowledge and capacities which can
forward the fight against impunity by such bodies. We do engage quite closely with
them, albeit that our cooperation has always to be tempered by concerns for the safety
of refugees, the viability of our operations on the ground, and the security of our own
staff. The tribunals have presented us with some interesting dilemmas of our own,
such as to what extent UNHCR can assist with witness protection through our reset-
tlement programmes, or how we relate to indicted individuals whom the tribunals
might acquit but who cannot return to their home country.56
52
Lucy Hovil, ‘The Inter-Relationship between Violence, Displacement and the Transition to
Stability in the Great Lakes Region’ (concept paper prepared for the Violence and Transition
Project Roundtable, Johannesburg, South Africa, 7–9 May 2008). See also, International Refugee
Rights Initiative, A Dangerous Impasse: Rwandan Refugees in Uganda (June 2010).
53
Jayne Huckerby, Transitional Justice and Treatment of Refugee Returnees Suspected of Criminal
Offences: East Timor and Beyond (New York: Center for Human Rights and Global Justice, 2004),
10.
54
Ibid.
55
Young and Park, supra n 33.
56
Erika Feller, ‘Giving Peace a Chance: Displacement and Rule of Law during Peacebuilding,’
Refugee Survey Quarterly 28(1) (2009): 93.

Other humanitarian actors, depending on their mandates, can cooperate in simi-

lar ways. Médecins Sans Frontières, a provider of medical care, ‘can in some cases
provide medical certification that certain crimes and acts of violence have
occurred,’ which ‘helps to establish individuals’ status as victims, while leaving
to these individuals the choice as to whether to seek legal redress at a later time.’57
Recognizing the positive contribution that reparations can make to durable so-
lutions, the International Organization for Migration (IOM) also provides expert
advice, technical cooperation and operational assistance to governments and
international bodies that establish and implement reparations programs. Most
recently, IOM has been providing technical assistance and expertise to the rep-
arations program in Sierra Leone, particularly in its assistance to victims of sexual
violence.58
Logistical and other assistance from humanitarian and human rights organiza-
tions to displaced populations could in some ways help them overcome some of
the obstacles they face in engaging justice measures, particularly in terms of or-
ganization, visibility and outreach.59 Furthermore, coordination in the form of
appropriate sequencing, division of labor and dialogue may also help to minimize
tensions between justice measures and humanitarian access, as well as to exploit
the potential for mutual reinforcement. Transitional justice has to consider what
is feasible and what is wise in the context of displacement and the efforts to deal
with it.
In most cases, however, such coordination is absent. In Colombia, for example,
the assistance and protection system for the internally displaced ‘is in no way
connected to the peace initiatives and specifically the developments of transitional
justice,’ including the Justice and Peace Law and the National Commission for
Reparation and Reconciliation. ‘On the contrary,’ notes Roberto Vidal, ‘the two
systems mutually cancel and obscure each other.’60 As a result, there is ‘an un-
fortunate tendency for [internally displaced persons] and other victims to be
pitted against one another,’61 to relate according to ‘resource competition
logic more than to political unity logic based on their general condition as
victims.’62
In some situations, however, there may in fact be legitimate reasons to be
cautious about cooperation. Cooperation between criminal justice processes
and humanitarian actors is the clearest example. When humanitarian actors
57
Françoise Bouchet-Saulnier and Fabien Dubuet, Legal or Humanitarian Testimony? History of
MSF’s Interactions with Investigations and Judicial Proceedings (Paris: Médecins Sans Frontières,
2007), 50.
58
International Organization for Migration, ‘Reparation Programmes,’ policy brief (July 2009);
International Organization for Migration, ‘IOM Provides Technical Assistance to Reparations
Programme for Victims of Sexual Violence in Sierra Leone,’ press briefing (23 April 2010).
59
Mey, supra n 38.
60
Roberto Vidal, ‘Internal Displacement and the Construction of Peace in Colombia,’ in Ferris,
supra n 45 at 70.
61
Ferris, supra n 45 at 4.
62
Vidal, supra n 60 at 88.

254 R. Duthie
work with displaced persons in conflict areas, they are likely to bear witness to
atrocities and therefore to be potentially important providers of evidence, which
is of interest to courts and tribunals. From the perspective of humanitarian actors,
however, writes Kate Mackintosh, ‘the question of cooperation with international
criminal courts is a complex one.’ Humanitarian organizations generally support
and promote efforts to fight impunity for abuses, but at the same time they worry
about public cooperation with courts ‘compromising neutrality, forfeiting access
and putting themselves and their staff at risk.’63 This may inhibit their ability to
provide protection and assistance to the displaced. Nevertheless, a number of
tools or protective measures can be used to maintain control of cooperation and
minimize potential negative effects, including confidentiality of witnesses, non-
disclosure of information to the public, provision of written statements rather
than oral testimony, closed court sessions and the removal of names and other
identifying information from court records.64 If humanitarian organizations do
cooperate, argues La Rosa, they
must be fully aware of the consequences and make use of the mechanisms established
in the relevant provisions to minimize the impact of such action on other activities
that it carries out and on the global humanitarian environment.65
Potential Mutual Reinforcement with Other Policy

Interventions
Transitional justice measures may in certain ways also have a mutually reinforcing
relationship with other types of policy interventions dealing with displacement.
There is reason to think, for example, that transitional justice measures may
contribute positively to notions such as ‘just return’ or ‘durable solutions’ for
displaced persons. Just return involves putting returning refugees on equal foot-
ing with others and ‘restoring a normal relationship of rights and duties between
the state and its returning citizens.’66 Durable solutions to internal displacement
include return to one’s place of origin, integration in the place of refuge or
resettlement elsewhere, and are based on three elements: long-term safety and
security, restitution/compensation for lost property and an environment of
normal economic and social conditions.67 Some suggest that transitional justice
efforts have received support in recent decades in part because ‘they were seen as
63
Kate Mackintosh, ‘How Far Can Humanitarian Organisations Control Co-Operation with
International Tribunals,’ Journal of Humanitarian Assistance, 1 May 2005, http://jha.ac/articles/
a175.pdf (accessed 30 March 2011).
64
Ibid.; La Rosa, supra n 47.
65
66
Bradley, ‘The Conditions of Just Return,’ supra n 3 at 286.
67
Brookings-Bern Project on Internal Displacement, When Displacement Ends: A Framework for
Durable Solutions (June 2007).

instrumental to the goal of ending displacement by enabling durable solutions,

especially return.’68
To see this potential contribution, consider that the different elements of
a comprehensive transitional justice policy arguably are meant to provide recog-
nition to victims and to foster civic trust. They can be interpreted as efforts
to institutionalize the recognition of individuals both as victims of human
rights abuses and as rights bearers, as well as to promote civic trust among citizens
and between them and their institutions. In one sense, transitional justice can
be thought of as efforts to enable the activity and participation of citizens
who were previously marginalized or excluded, as a tool of social reintegration.69
This can have a bearing on the displaced. Those who are forcibly displaced dur-
ing conflict often suffer not as the unavoidable result of armed conflict
but because their rights are violated as a consequence of specific and inten-
tional policies and actions, and inaction, of state and nonstate actors. For such
people, measures taken to recognize them as rights bearers and to reestablish
trust in fellow citizens and government institutions may reinforce the posi-
tive outcomes of other responses to displacement. As Bradley explains,
‘Refugees are perhaps above all those with the least confidence in their state of
origin.’70
In pursuing their own objectives of recognition and trust, transitional justice
measures may serve to increase safety and stability among those returning, as well
as their activity and participation, thereby facilitating sustainable return and re-
integration in different ways. The following are examples:71
• Prosecuting those whose abuses forced citizens into exile can be a ‘significant
expression of state responsibility’ and ‘may serve to reassure returnees that the
state has reformed.’72 Prosecutions may also facilitate or encourage return by
removing known perpetrators from security institutions or local commu-
nities, thereby increasing returnees’ sense of safety and security. In Bosnia,
Liberia and Timor-Leste, for example, the return process
came up against deeply felt sentiments on the part of many that they could not
return to a situation where the people directly responsible for the deaths of their
relatives were living in the same village.73
68
Bradley, supra n 36 at 7.
69
De Greiff, supra n 5; Pablo de Greiff, ‘Articulating the Links between Transitional Justice and
Development: Justice and Social Integration,’ in Transitional Justice and Development: Making
Connections, ed. Pablo de Greiff and Roger Duthie (New York: Social Science Research Council,
2009).
70
71
A similar finding emerges from the ICTJ research project on transitional justice and disarmament,
demobilization and reintegration, specifically with regard to the reintegration of ex-combatants.
72
73
Feller, supra n 56 at 93.

256 R. Duthie
In Colombia, the representative of the secretary-general on the human rights

of internally displaced persons has said that
there is a clear link between the reintegration of demobilized people, their
possible impunity and the low return of [internally displaced persons].
Where the perpetrators of forced displacement continue to stay in the areas
where they have committed their crimes, people are wary of returning, since
they do not feel safe.74
While this is not one of its main goals, suggests Diane Orentlicher’s recent
report on the ICTY’s impact in Bosnia, the Tribunal may have contributed to
the return of those forcibly displaced during the conflict in two ways: first,
because people felt safer knowing ‘the world was watching’ and, second, be-
cause ‘some individuals known to have been responsible for horrific crimes
were no longer in a position to deter returns.’75 ‘When combined with other
favorable factors,’ Orentlicher concludes, ‘the removal of notorious war crim-
inals can contribute to displaced persons’ willingness to return home and
probably has had this effect, albeit to a limited extent.’76 Other evidence also
suggests that the ICTY increased refugee returns, although possibly through
its truth-telling effects more than its sentencing. Plea bargaining targeted at
low-ranking perpetrators, according to one study, was more likely to increase
refugee returns than indictments and sentencing of higher-ranking perpetra-
tors, because of the contribution made by such pleas to truth telling at the
local level.77
• Reform of security institutions, such as the police and military, can similarly
be an important factor in postconflict return and reintegration, particularly if
it is justice sensitive, involving such elements as the removal of human rights
abusers and appropriate ethnic and gender representation. According to one
report,
The presence of armed groups, whether belonging to regular forces of militias,
may create a serious obstacle to return and may be considered as a threat by
potential returnees due to their past behavior, ethnic origin or lack of discipline.
This is especially true where these forces have caused the displacement suffered
by returnees, for example in Colombia.78
Similarly, in Iraq, where some of the almost 5 million displaced persons have
begun the process of return, many find that ‘those who were responsible for
their displacement in the first place are now in charge of security in their
74
‘Mission to Colombia,’ UN Doc. A/HRC/4/38/Add.3 (24 January 2007), para. 57.
75
Diane F. Orentlicher, That Someone Guilty Be Punished: The Impact of the ICTY in Bosnia (New
York: Open Society Institute, 2010), 79–80.
76
Ibid., 85.
77
Monika Nalepa, ‘Reconciliation, Refugee Returns, and the Impact of International Criminal
Justice: The Case of Bosnia and Herzegovina,’ in NOMOS L: Transitional Justice, ed. Melissa
Williams, Rosemary Nagy and Jon Elster (New York: New York University Press, forthcoming).
78
Brookings-Bern Project on Internal Displacement, Addressing Internal Displacement in Peace
Processes, Peace Agreements and Peace-Building (September 2007), 44–45.

neighborhoods, whether as members of the police, army, or Awakening

Councils.’79 In postwar Bosnia, the UN’s police reform efforts included a
minority recruitment policy that was specifically aimed at attracting the
return of minority refugees.80
• Truth commissions may also facilitate return and reintegration, both of vic-
tims and of perpetrators of crimes. Timor-Leste’s Commission, for example,
was seen as ‘a means of encouraging the return of the tens of thousands
of refugees living in camps in West Timor.’81 Returning refugees
who had committed ‘lesser crimes’ were eligible to participate in the
Commission-facilitated Community Reconciliation Processes, which
involved community-based hearings at which perpetrators and members of
the community came together to determine measures that would enable the
perpetrators to reintegrate into the community. Truth-telling efforts, by re-
vealing and validating the experiences of different groups, may also poten-
tially facilitate return/reintegration processes by reducing tensions between
those who stayed and those who left, and by encouraging more comprehen-
sive policy responses.
• Reparations in the form of property restitution, compensation or other bene-
fits may facilitate reintegration into and active participation in community
and society, enabling the rebuilding of sustainable livelihoods. As restitution
did in Bosnia, reparations may ‘make invaluable contributions towards
increasing returnees’ physical, legal and socio-economic security, while ex-
panding the range of choices the refugee can make in the context of the return
process.’82 According to IOM, reparations programs
form an important component of such durable solutions by facilitating the
voluntary return of displaced persons, recognizing that injustice has occurred
and providing material remedies that assist the integration of displaced persons
in their places of origin.83
The absence of reparations programs, meanwhile, particularly when other
returning groups such as ex-combatants receive assistance through disarma-
ment, demobilization and reintegration (DDR) programs, could disrupt the
overall reintegration process.84
79
Deborah Isser and Peter Van der Auweraert, Land, Property, and the Challenge of Return for Iraq’s
Displaced (Washington, DC: US Institute of Peace, 2009), 13.
80
See, Gemma Collantes Celador, ‘Police Reform: Peacebuilding through “Democratic Policing”?’
International Peacekeeping 12(3) (2005): 364–376.
81
Taina Järvinen, Human Rights and Post-Conflict Transitional Justice in East Timor (Helsinki:
Finnish Institute of International Affairs, 2004), 56.
82
Bradley, ‘The Conditions of Just Return,’ supra n 3 at 299, citing Rhodri C. Williams, ‘The
Significance of Property Restitution to Sustainable Return in Bosnia and Herzegovina,’
International Migration 44(3) (2006): 39–61.
83
International Organzation for Migration, ‘Reparation Programmes,’ supra n 58 at 1.
84
See, Feller, supra n 56.

258 R. Duthie
These examples speak primarily to the contribution that transitional justice can
make to one particular durable solution: return to one’s place of origin. (The
relationship between justice measures and other solutions, such as local integra-
tion and resettlement, is less understood.) As with transitional justice generally,
there are good reasons to think that a combination of measures or a holistic
package of them will achieve their goals more effectively and therefore make a
greater contribution to the return process. It has been argued, for example, that
any durable solution to the Palestinian refugee case will require among its pre-
requisites a combination of justice and reconciliation measures, including resti-
tution, compensation, apologies (from both sides), a truth commission and
commemorative activities.85
At the same time, other responses to displacement may, in certain ways, serve to
enable transitional justice by facilitating a more conducive environment in which
it can be implemented. Participation in justice measures such as truth commis-
sions and trials, for instance, may be complicated (although not impossible) when
victims, witnesses or perpetrators remain across international borders. It is also
difficult to design and implement a reparations program that can effectively dis-
tribute benefits beyond national borders. Local justice and reconciliation pro-
cesses, as well, can be difficult or impossible to conduct when entire communities
have been uprooted and traditional structures damaged or destroyed.86 These
represent challenges for transitional justice efforts emerging from a context of
displacement, challenges that may be addressed in part by initiatives aimed not at
transitional justice but at displacement. In some cases, return may even be seen as
‘an essential pre-requisite to and a crucial part of processes more usually regarded
as constituting transitional justice.’87
Conclusion
Transitional justice measures have justifiable reasons but limited capacity to deal
with displacement and the human rights abuses associated with it, as well as to
engage with displaced persons. These measures can address displacement as one
aspect of their work, without necessarily significantly expanding the field’s his-
torical focus on a core set of civil and political rights violations. Doing so still may
involve indirectly addressing the wider range of socioeconomic rights violations
associated with displacement as part of the broader context. While this historical
focus does partly explain why the field has had limited engagement with
85
Michael Dumper, ‘Palestinian Refugees,’ in Protracted Refugee Situations: Political, Human Rights
and Security Implications, ed. Gil Loescher, James Milner, Edward Newman and Gary Troeller
(Tokyo: UN University Press, 2008).
86
In northern Uganda, for example, the ‘net impact of this large-scale displacement caused by the
war is a strong belief that traditional mechanisms can no longer be applied in any meaningful way
in a context of displacement: ceremonies have little meaning when there is no place to perform
them.’ Refugee Law Project, Peace First, Justice Later: Traditional Justice in Northern Uganda (July
2005).
87
Beyond Juba Project, supra n 29 at 15.

displacement, other important reasons include the practical challenges of ad-

dressing such a massive and complicated problem and the difficulties in coordi-
nating with other actors with different mandates. At the same time, however, in
pursuing their own objectives, such as redressing human rights abuses, providing
recognition to victims and promoting civic trust, transitional justice measures
may interact in mutually reinforcing ways with other policy tools addressing
displacement. Opportunities for coordination and cooperation do exist alongside
potential tensions.
In addition to examining this capacity and searching for such links, however, it
is important to think broadly about how transitional justice fits within a com-
prehensive and coherent response to the problem of displacement. To begin with,
it has been argued that the final goals of transitional justice include peace, rec-
onciliation and democracy. Peace requires the prevention of the recurrence of
violence and abuses, which transitional justice can contribute to in numerous
ways, including by drawing attention to the ‘root causes’ of conflict and address-
ing the legitimate claims of victims in its aftermath. Reconciliation requires that
citizens have a certain amount of trust in their institutions and in each other,
which transitional justice can promote. Democracy requires strengthening the
rule of law and the protection of individual rights, in which transitional
justice can play important roles.88 The achievement of these goals is inher-
ently long term, and it can contribute to and at the same time depends on
the success of programs dealing with problems such as displacement, includ-
ing those of humanitarianism, human security, development and
peacebuilding.
Humanitarian responses to displacement are intended both to assist and pro-
tect the displaced and to support durable solutions to displacement. Human
security refers to the ‘complex of interrelated threats associated with civil war,
genocide and the displacement of populations.’89 Displacement is also very much
a concern of peacebuilding and development practitioners.90 Durable peace
cannot stand on the basis of large displaced populations, not least for human
rights-related reasons but also because the presence of large, vulnerable popula-
tions can always turn into a destabilizing factor. Likewise, sustainable develop-
ment is certainly undermined by the lack of reintegration or integration of very
88
See, de Greiff, supra n 5.
89
Human Security Centre, Human Security Report 2005: War and Peace in the 21st Century (New
York: Oxford University Press, 2005), viii. Human security ‘regards human displacement as a
pressing issue not only because it has repercussions on other essential constructions . . . but be-
cause individuals and people collectively have rights that must be upheld.’ Newman, supra n 16 at
8.
90
According to former UN Secretary-General Kofi Annan, ‘The return of refugees and internally
displaced persons is a major part of any post-conflict scenario . . . It is often a critical factor in
sustaining a peace process and in revitalizing economic activity.’ UN, ‘Secretary-General’s Address
to UNHCR Executive Committee’ (6 October 2005), http://www.un.org/apps/sg/printsgstats
asp?nid=1717 (accessed 30 March 2011).

260 R. Duthie
large numbers of displaced persons into the economies of their home commu-
nities or those in which they resettle.91
Displacement and transitional justice both fall within a number of peacebuild-
ing frameworks.92 One of these points to five areas where peacebuilding activities
are particularly relevant for efforts to address displacement: provision of security
(including DDR, rule of law and combating impunity); resolution of
property-related problems (including reconstruction and restitution of prop-
erty); reconciliation between communities and returnees; postconflict recon-
struction (including services, resources and livelihoods); and establishment of
effective and legitimate government institutions in which the displaced and re-
turnees can become stakeholders. In each of these areas, peacebuilding activities
can serve to reinforce efforts aimed at providing durable solutions for the dis-
placed, while failure to address the concerns of displaced persons ‘may jeopardize
the sustainability of peace.’93 This framework also contains potential links to
transitional justice. DDR, rule of law, impunity, restitution, reconciliation, re-
construction and institutional reform are all very much concerns of transitional
justice measures.
At the same time, we should keep in mind that while the field of transitional
justice relates to displacement in many ways, the more immediate goals of tran-
sitional justice measures and their approaches to the problem of displacement are
different from those of other actors. These differences are important and are not
just a question of technical challenge or practical limitation. Transitional justice
developed as a field primarily to address serious human rights violations, as a
rights-based approach to promote accountability for the perpetrators and recog-
nition for the victims. As discussed, serious human rights violations are linked to
displacement, but displacement is also a much broader and more complex phe-
nomenon. Humanitarian actors seek primarily to assist and protect the displaced,
not to pursue accountability and redress for past human rights violations. The
goals and the approach are different. As La Rosa notes, ‘The purpose of humani-
tarian action is, above all else, to save lives, not to establish criminal responsibil-
ity.’94 Bringing transitional justice tools to bear on the problem of displacement
might, then, mean changing the broad approach to the issue. As Donny Meertens
puts it,
The rise of a new way of political thinking on IDPs. Formerly in a ‘humanitarian
category,’ recent debates on victimhood place them in a ‘rights category’ – that is, as
91
See, Pablo de Greiff and Roger Duthie, eds., Transitional Justice and Development: Making
Connections (New York: Social Science Research Council, 2009).
92
Including those of the Organisation for Economic Cooperation and Development’s Development
Assistance Committee (OECD-DAC) and the Brookings-Bern Project on Internal Displacement.
93
Brookings-Bern Project on Internal Displacement, supra n 78 at 43. See also, Walter Kälin,
‘Durable Solutions for Internally Displaced Persons: An Essential Dimension of Peacebuilding’
(briefing paper submitted to the UN Peacebuilding Commission Working Group on Lessons
Learning, 13 March 2008).
94

victims of conflict with a right not only to humanitarian assistance and economic
recovery, but also to truth, justice and reparations.95
Some tensions may be expected to remain between these approaches.
Humanitarian action and judicial action, according to one Médecins Sans
Frontières report, ‘both of which are useful and legitimate, are largely incompat-
ible and governed by different motivations and modes of operation.’96
A comprehensive and coherent response to displacement in transitional con-
texts is one that includes, at minimum, human rights, humanitarian, human
security, peacebuilding, development and transitional justice policies, accounts
for the ways in which these different policies can reinforce or undermine each
other and involves a certain level of coordination aimed at maximizing synergies
and minimizing tensions. This article has attempted to present some ideas about
how transitional justice may fit in a complementary manner into such a response,
as well as the implications for the field of transitional justice in doing so.
Addressing displacement does not necessarily require a significant expansion of
transitional justice’s agenda, but it does call for change in the way that transitional
justice measures and practitioners perform their work in a context of displace-
ment, engage with displaced persons and respond to their justice claims and relate
to and interact with all other actors whose work deals with displacement.
95
Donny Meertens, ‘Forced Displacement and Women’s Security in Colombia,’ Disasters 34 (2010):
S156 (emphasis in original).
96
Bouchet-Saulnier and Dubuet, supra n 57 at 42.

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The International Journal of Transitional Justice, Vol.

Transitional Justice and Displacement

in its complexity’ is needed.2 Practitioners, policy makers and researchers in both

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

Redressing Human Rights Violations Associated with

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

provided by their homes, livelihoods, communities and authority structures, are

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

displacement itself, but the UN Compensation Commission represents ‘an

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

• Criminal prosecutions can target the perpetrators of human rights violations

Engaging the Displaced

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

urban-based displaced persons believe that any transitional justice accompanying

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

Acknowledging the Limitations of a Transitional

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

Minimizing Potential Tensions with Other Policy

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

development and peacebuilding practitioners. Tensions may arise in such cases

For humanitarian organizations, suggests Peter Bell, former president of CARE,

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

will find them guilty by association with perpetrators of genocide.52 Transitional

Opportunities for Coordination and Cooperation

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

Other humanitarian actors, depending on their mandates, can cooperate in simi-

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

Potential Mutual Reinforcement with Other Policy

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

instrumental to the goal of ending displacement by enabling durable solutions,

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

In Colombia, the representative of the secretary-general on the human rights

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

neighborhoods, whether as members of the police, army, or Awakening

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

displacement, other important reasons include the practical challenges of ad-

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

International Journal of Transitional Justice, Vol. 5, 2011, 241–261

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