Transitional Justice and Forced Migration: Critical Perspectives from the Global South 9781108422062, 9781108380072, 1108422063

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transitional justice and forced migration This volume brings together critical legal scholarship and theories of forced migration that draw attention to the dual role of law as it pertains to transitional justice and mass violence resulting in forced population movements. Contributors to the volume analyze how forced migration in the Global South have impacted contemporary realities. While there has been considerable focus on refugees and asylum seekers from conflict zones, there is less attention paid to the far more numerous internally displaced peoples, stateless people, warehoused refugees, nonstatus displaced, and returnees in the Global South. In this volume, a multidisciplinary group of scholars question the reasons behind the restrictive choices that lock us into area studies modalities instead of genuine interdisciplinary analysis by linking the traditional subject matter of transitional justice with the realities of forced migration in the Global South. Nergis Canefe is Associate Professor of Politics, Public Policy, and Law at York University, Toronto, Canada. She specializes in the fields of Political Philosophy, Forced Migration Studies, and Public International Law with special focus on public accountability, state criminality, and mass political violence.

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Published online by Cambridge University Press

Transitional Justice and Forced Migration critical perspectives from the global south

Edited by

NERGIS CANEFE York University, Toronto

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University Printing House, Cambridge cb2 8bs, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, USA 477 Williamstown Road, Port Melbourne, vic 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108422062 doi: 10.1017/9781108380072 © Nergis Canefe 2019 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2019 Printed in the United Kingdom by TJ International Ltd, Padstow Cornwall A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data names: Canefe, Nergis, 1967–, editor. title: Transitional justice and forced migration : critical perspectives from the global south / Edited by Nergis Canefe, York University, Toronto. description: New York, NY : Cambridge University Press, 2019. | Includes bibliographical references and index. identifiers: lccn 2019019509 subjects: lcsh: Transitional justice. | Forced migration. classification: lcc k5250 .t7335 2019 | ddc 342/.12408–dc23 LC record available at https://lccn.loc.gov/2019019509 isbn 978-1-108-42206-2 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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This volume is dedicated to the memory of Barbara Harrell-Bond, whom we lost in body but never in soul in July 2018, a mentor, teacher, friend, and path finder for so many of us . . .

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Published online by Cambridge University Press

Contents

page ix

List of Contributors

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Preface Acknowledgements

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List of Abbreviations

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1

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In Lieu of an Introduction: Orbis Tertius as Vantage Point Nergis Canefe

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part i the past as the memory of the future

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Borderlands of Independent India: Transition, Violence, and Justice Ranabir Samaddar

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A Restorative Justice Approach to the “Armenian Problem”: Transitional Justice between Past and Future Turgut Tarhanlı

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Hybrid Courts, Transitional Justice, and Displacement in the Global South Nergis Canefe

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part ii law, justice, and hope

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Transitional Justice, Displacement, and the Rights of the Young: Retributive and Restorative Approaches in the Aftermath of the Rwandan Genocide Marisa O. Ensor

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Beyond Agreements: Management Tools to Support Peace Agreements in the Case of Displaced Populations in Colombia Fabio Andre´s Dı´az Pabo´n

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State-Based Truth Commissions: The Case of Postwar Sri Lanka Jessica Chandrashekar

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The Right of Return in Iraq: Conceptualizing Insecurity, State Fragility, and Forced Displacement Shamiran Mako and Hannibal Travis

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part iii ethics of witnessing

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Persecution, Prosecution, Protection: Doing International Justice for Sexual Violence Galya Ben-Arieh

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Transitional Justice, Reconciliation, and Reconstruction Process: The Case of Former LTTE Female Combatants in Postwar Sri Lanka Nasreen Chowdhory and Shamna Thachampoyil The Principle of Legal Certainty: Impact Assessment of the Syrian Refugee Crisis on the Turkish Law on Foreigners and International Protection Lami Bertan Tokuzlu Perspectives on Legal Justice and Victim Reparations in the Diasporic African Great Lakes Region Helen Hintjens and Jackson Odong

Index

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Contributors

Howard Adelman’s last position was as a research professor at the Key Centre for Ethics, Law, Justice and Governance at Griffith University in Brisbane, Australia. Previously, he was a visiting research professor at the Woodrow Wilson School at Princeton University, and before that, from 1966 to 2003, was a professor of philosophy at York University in Toronto where he taught international ethics and Hegel. He was the founder and first Director of the Centre for Refugee Studies and Editor of Refuge until the end of 1993. He has written or coauthored 6 books and edited or coedited 20 others. He has authored 95 chapters in edited volumes, 106 articles in refereed journals, and 30 professional reports. In addition to his numerous writings on refugees, he has written articles, chapters, and books on the Middle East, humanitarian intervention, membership rights, ethics, early warning, and conflict management. Professor Adelman’s most recent book, coauthored with Elazar Barkan, is entitled No Return, No Refuge for Columbia University Press. His previous edited volume, Protracted Displacement in Asia: No Place to Call Home, was released in November 2008 by Ashgate. On January 1, 2017, he received the Order of Canada from the Governor General for his lifetime of work with and about refugees. Galya Ben-Arieh, JD, PhD, is Professor of Instruction in Political Science, Nothwestern University, USA. Her research centers on the rights and processes of refugee protection and the role of law in settlement and inclusion in host societies and comparative constitutional theory and transformation. During her twelve years at Northwestern University she has directed the International Studies Program (2008–2015), creating the IS Honors Program and the Global Cafe´. An international expert in refugee studies, Ben-Arieh (also known as Galya Ruffer) founded and directed the Center for Forced Migration Studies (CFMS), which was housed at the Buffett Institute from 2011 to 2018. In 2015, she received funding to launch a research program on refugee resettlement. She is now continuing this work through the development of a Refugee ix

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Knowledge Hub, a community-based partnership providing leadership, knowledge, and support for refugees and asylees in the Chicago community. She has been awarded grants from the National Science Foundation, the Social Science Research Council, and the Kellogg Center for Dispute Resolution and is a former senior fellow at the Ka¨te Hamburger Kolleg/Centre for Global Cooperation Research (University of Duisburg-Essen) and a consortium partner in the project Norms and Values in the European Migration and Refugee Crisis (NoVaMigra), a European Union Horizon 2020 research and innovation program. She has conducted field research in the Great Lakes region of Eastern Africa, Germany, and the United States and has published on testimony and justice, asylum law and policy, refugee protection in a digital age, human rights litigation in transnational courts, and citizenship and immigrant incorporation in the United States and Germany, with a recent book, Adjudicating Refugee and Asylum Status: The Role of Witness, Expertise, and Testimony (co-edited with Benjamin Lawrance), Cambridge University Press (2015). She serves on the executive committee of the International Association for the Study of Forced Migration and has worked as an immigration attorney representing political asylum claimants both as a solo practitioner and as a pro bono attorney. Nergis Canefe is a scholar trained in the fields of political philosophy, forced migration studies, and international public law, with special focus on human rights. She has over twenty years of experience in carrying out indepth qualitative research with displaced communities and teaching human rights globally. Her research experience includes working with the Muslim and Jewish Diasporas in Europe and North America and refugees and displaced peoples in Turkey, Cyprus, India, Uganda, South Africa, Bosnia, and Colombia. In the field of legal studies, she has specialized in international criminal and public law, with particular emphasis on crimes against humanity, accountability for state criminality, and critical approaches to transitional justice. Prior to joining York University in 2003, she worked at the London School of Economics, UK, and Bilgi University and Bogazici University, Turkey, as a faculty member. In the field of social and political theory, Dr. Canefe has published widely in the following areas: theories of nationalism in the Global South, organized violence, mass murder, societal amnesia, forced migration and postcolonial state formations in the Middle East, Muslim and Jewish Diasporas in the West, and minority rights in the West. She has done extensive fieldwork on the role of political violence and forced migration in postimperial nation-state formation and capital accumulation in the Middle East. Her research has been funded by international and Canadian organizations. She also regularly conducts some of her human rights, minority rights, and refugee rights–related work on a pro bono basis. Her books include Limits of

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Universal Jurisdiction in the Global South (University of Wales Press, International Law Series, 2019), The Syrian Exodus in Context (Bilgi University Press, 2018), The Jewish Diaspora as a Paradigm: Politics, Religion and Belonging (edited volume, Libra Press, Jewish Studies Series, 2014), Milliyetcilik, Kimlik ve Aidiyet [Nationalism, Identity and Belonging] (Bilgi University Press, 2006), and Turkey and European Integration: Accession Prospects and Issues (edited volume in collaboration with Mehmet Ugur, Jean Monnet Professor at the University of Greenwich, Routledge, 2004). Her scholarly articles have appeared in several edited volumes and academic journals including Nations and Nationalism, Citizenship Studies, New Perspectives, Refugee Watch, South East European Studies, Peace Review, Refuge, Middle Eastern Law and Governance, and Narrative Politics. Jessica Chandrashekar is an articling student and a PhD candidate in the Gender, Feminist, and Women’s Studies Program at York University, Toronto, Canada. She works at a legal aid clinic in the areas of immigration, employment law, housing, and social assistance. In her PhD dissertation, she uses a feminist analysis to examine peace-building programs in postwar Sri Lanka. Her work urges a re-envisioning, and thus re-strategizing, of post-2009 transitional justice and peace-building programs by making central the lived experiences, material realities, and sociopolitical analytical knowledge of Tamil women survivors in the Northern Province. She is also a co-collaborator on an academic project on Feminisms, Structural Violence, and Transitional Justice. Nasreen Chowdhory teaches in the Department of Political Science, University of Delhi. She received her PhD in political science from McGill University, Canada. She has published several research papers in national and international peer-reviewed journals such as International Journal of Migration Studies, Refugee Watch: A South Asia Journal on Forced Migration, and Peace Prints. Some of her prominent works are Refugees, Citizenship and Belonging in South Asia: Contested Terrains (Springer, 2018) and a special issue as guest editor in the journal International Journal on Migration and Border Studies on “Displacement – a state of exception and beyond: issues and perspectives in forced migration in South Asia,” Volume 2, 2016. At the time of writing, she is engaged with two projects that will be published soon: Territorialized Identities and Transborder Movement in South Asia, coedited with Nasir Uddin (Springer, 2019), and another volume on Citizenship, Nationalism and Refugeehood of the Rohingya in Southern Asia. She is the vice president of the International Association for the Study of Forced Migration and Governing Body member in Mahanirban Calcutta Research Group, Kolkata, India.

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Fabio Andre´s Dı´az Pabo´n is a Colombian political scientist. He is a research associate in the Department of Political and International Studies at Rhodes University in South Africa and a researcher at the International Institute of Social Studies in the Netherlands. He works at the intersection between theory and practice, and his research interests are related to state strength, civil war, conflict, and protests in the midst of globalization. He is currently researching the connections between armed violent conflict and mass mobilization to understand how peaceful – and less peaceful – protests coincide with civil war and other forms of armed violence. His most current publication is an edited volume titled Truth, Justice and Reconciliation in Colombia: Transitioning from Violence. In addition to his academic publications, his analyses have been published by Al Jazeera, Time, The Conversation, and The International Peace Institute Global Observatory, among others. Helen Hintjens is Assistant Professor in Development and Social Justice at the International Institute of Social Studies (ISS) in The Hague, a part of Erasmus University. Before working at ISS, she taught for twenty years in the United Kingdom. She has been working on the comparative politics of asylum and refugee issue since the 1980s, including in the United Kingdom, France, and Australia. She has published on issues of asylum advocacy, refugee rights, refugees at sea, and undocumented migrants. She is also interested in post-genocide politics in Rwanda and the African Great Lakes region and has worked on issues of identity politics and the role of the arts in reconciliation. Marisa O. Ensor (PhD, LLM) is an applied legal, political, environmental anthropologist and human rights scholar and practitioner currently based at Georgetown University – Justice and Peace Studies Program and Institute for the Study of International Migration, School of Foreign Service. Prior to joining Georgetown, she taught at several universities in the United States and abroad, including the American University in Cairo’s Center for Migration and Refugee Studies. She has worked in nineteen fragile, conflict-affected, and transitional countries of Africa, Europe, the MENA region, and Latin America. Her research considers the link between threats to peace and security and the politics of forced displacement, peacebuilding, and reconciliation with a focus on youth and gender dynamics. Her research has resulted in numerous publications, including four books and over forty book chapters and journal articles. Her most recent volume (in progress) is titled I Am Tired of War: Youth Activists, Peacebuilding & the Politics of Reconciliation in South Sudan. Shamiran Mako is an assistant professor of international relations at the Pardee School of Global Studies at Boston University where she specializes in the comparative politics and international relations of the

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Middle East and North Africa. Specifically, her research focuses on state formation, authoritarianism, civil wars, democratization, ethnic conflict and identity politics, governing in divided societies, and post-conflict state and peace-building. She earned her PhD in political science from the University of Edinburgh in June 2016 and was previously a visiting assistant professor of Middle East politics and Director of Undergraduate Studies at Brown University’s Middle East Studies Program. She has held research positions at Northeastern University and Harvard University’s Weatherhead Center for International Affairs. She is an editor of State and Society in Iraq: Citizenship under Occupation, Dictatorship and Democratization (I.B. Tauris, Winter 2017), where she is also a contributor. Her recent book project, coauthored with Valentine Moghadam, titled The Arab Spring and Its Aftermath, is forthcoming (Fall 2019) with Cambridge University Press. Her work has appeared in the World Affairs Journal and International Journal of Minority and Group Rights. Jackson Odong is a development practitioner and a peace rebel who believes in expressing tomorrow’s reality in today’s ideas. He is based in Uganda. Ranabir Samaddar is the former Director of the Calcutta Research Group and belongs to the school of critical thinking. He has pioneered several peace studies programs in South Asia. He has worked extensively on issues of justice and rights in the context of conflicts in South Asia. The muchacclaimed The Politics of Dialogue (2004, Ashgate) was the culmination of his work on justice, rights, and peace. His particular researches have been on migration and refugee studies, the theory and practices of dialogue, nationalism and postcolonial statehood in South Asia, and new regimes of technological restructuring and labor control. He has authored a threevolume study of Indian nationalism (Whose Asia Is It Anyway: Religion and the Nation in South Asia, 1996, The Marginal Nation: Transborder Migration from Bangladesh to West Bengal, 1999, and A Biography of the Indian Nation, 1947–1997, 2001). His recent political writings published in the form of a double-volume account, The Materiality of Politics (Anthem Press, 2007) and The Emergence of the Political Subject (Sage, 2009), have challenged some of the prevailing accounts of the birth of nationalism and the nation-state and have signaled a new turn in critical postcolonial thinking. His latest books include The Nation Form (Sage, 2012) and Karl Marx and the Post-Colonial Age (Palgrave, 2017). Turgut Tarhanlı is a senior legal scholar and jurist. In 1979, he graduated from Istanbul University Faculty of Law. In 1981, he was appointed as assistant to the Department of Public Law (International Law) at the same faculty. He continued his postgraduate studies at the same faculty and at New York University School of Law. In 1996, he was awarded the title of Associate Professor for Law of States and appointed to Istanbul University Faculty of

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Law. Since 1999–2000 academic year, he has been teaching at I˙stanbul Bilgi University and serving as the Dean of Law School. Tarhanlı was one of the founders of Human Rights Foundation of Turkey (TIHV) and the Helsinki Citizens’ Assembly, as well as the founder of Amnesty International’s Turkey chapter. He is an international member of the American Society of International Law. Turgut Tarhanlı teaches international law and human rights law at Bilgi University Faculty of Law and is the head of the Human Rights Research Center. Lami Bertan Tokuzlu was educated at the Istanbul University (Law School), Lund University (Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Sweden), and Marmara University (European Union Institute). He worked as Liaison Officer of the Ministry of Defense for the Turkish Parliament; Jean Monnet Postdoctoral Fellow at the European University Institute, RSCAS, Florence, Italy; Aziz Nesin Chair Professor at Viadrina University (Frankfurt (Oder), Germany; and Visiting Scholar at Bucerious Law School, Hamburg, Germany. Tokuzlu acted as a consultant to the committee that drafted the Turkish Law on International Protection and Migration that was adopted by the Turkish Grand National Assembly in April 2013. He is a member of the Global Academic Freedom Advocacy Team established by the Scholars at Risk Network at New York University. Tokuzlu is currently working as an assistant professor in law at Istanbul Bilgi University, Law School. His fields of expertise comprise International Protection Law, Constitutional Law, Human Rights Law, and European Union Law. Shamna Thachampoyil is a graduate student in the Department of Political Science, University of Delhi, India. She is presently writing her PhD dissertation on “Politics of Exclusion: The Question of Citizenship of the Rohingyas.” Hannibal Travis is Associate Professor of Law at Florida International University College of Law in Miami. A magna cum laude graduate of Harvard Law School in 1999, he has authored scores of articles on genocide and international law as well as Internet, business, copyright, and antitrust law. He is the editor of the recently published The Assyrian Genocide: Cultural and Political Legacies.

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Preface

Why to write a preface? Is it not superfluous? We read a book for its content; a preface by its very nature – and unlike the articles in the edited work – supposedly offers no original content but serves the purpose of preparing the reader for what is to follow. As such, a preface often purports to lead a reader into the book or, at the very least, to serve as an appetizer to entice the reader. On the other hand, the function of an introduction is to indicate the goals of the book, its structure, and the contributions it purports to make. The preface is written after the chapters have been completed. If so, can we write a preface in lieu of an introduction? If the preface is used to critique the chapters that follow, the writer preempts the work of the reader and critic. If one offers a potpourri of assessments or, alternatively, compliments, it hardly seems worth the effort for the little added value. Should the preface suggest limitations? That is tempting, but then the preface would serve to dissuade rather than entice readers. Should the writers of a preface try to distill the various conclusions offered? If the opportunity is taken to offer a summary, the chapters merely serve to illustrate the prefatory conclusions and are inappropriate to an academic enterprise aimed at advancing the truth. For the divine is indeed in the details. In this preface, we will undertake the double task of placing the entire volume within the larger discussion on transitional justice and displacement and summarizing the key points of entry for each of the chapters. Sometimes this is called “framing.” Framing presumes the authors of the frame have a greater and wider perspective on the material than any of the individual authors. If transitional justice is defined, as it is used normally, as the use of mechanisms of justice in the broadest terms to deny impunity, to reinforce and strengthen rights, and to reconcile conflicting segments of society for a common future, in this study there is particular emphasis on reversing the

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harms of displacement. Therefore, the category under study here is essentially normative, however voluminous the empirical content. This is still truer when an author offers an even larger realm for applying the concept, such as the Global South or the postcolonial state. The core of transitional justice measures is traditionally taken to be truth and reconciliation efforts. Whether narrow or wide, whether the conception of justice embraces distributive, restorative, and even retributive justice, and even when justice is examined from other than a dominant Western institutional perspective, the intellectual exercise is again normative insofar as the goal of the whole process is to displace violent and repressive forms of confrontation – or even arbitrary ones, as we shall see – and replace them with transparent and equitable practices rooted in both the rule of law and historical context. As dialogue displaces confrontation, justice must address injustice and impunity. On the other hand, truth-seeking has been the foremost problematic aspect of transitional justice, even when transitional justice schemes after World War II were preoccupied with the narrow dimension of criminal trials in bringing Nazi mass murderers and Japanese officers before postwar criminal courts. This is an underlying theme that runs through the entire volume. Thus, although volume is an academic enterprise, clearly it is not dissociated from advocacy. The set of chapters shares knowledge as part of an effort to build intellectual and research expertise, as well as inform practitioners, advocates, and activists. In that sense, it is totally consistent with the kind of truth-seeking associated with genuine forms of transitional justice. On the other hand, when we read the chapters, the normative assessments we find relate less to the perpetrators of the injustices and more to the efforts of those promoting and developing systems of transitional justice, except in cases where the claim is made that transitional justice is but a front for perpetuating injustices or, at times, even for totally subverting remedial justice. In this regard, all the contributors to the volume share one premise in common: transitional justice is a work in progress, one that has achieved a number of advances, but only when undertaken in a context that allows for a historical and political understanding of mass crimes. Truth cannot be presumed as a fixed base for making judgments. Instead, here it is seen as an evolving category, which the authors are all insistent on contextualizing and grounding. In this sense, instead of fixed solutions we are offered a moving target. If we conceive of transitional justice as a series of evolutionary stages in which successive steps are expected to advance an agenda, then its previous iterations will be perceived to be inadequate or even false forms of an ideal transitional justice. Transitional justice becomes a visionary goal.

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The purpose of this preface is to mine this collection of articles for assumptions and contradictions they harbor, while trying to reconcile truth perceived as a factual foundation with truth perceived as an ideal scholarship with moral purpose. Thus, we are inviting the reader to engage in an act of inquiry. In undertaking this task, one must keep the following questions in mind: 1. What is the conception of transitional justice utilized by the different authors? What are the common points and intersections that bind the chapters together under the aegis of critical perspectives from the Global South? 2. How do the authors contribute to the normative conception of transitional justice and its investigation, as discussed by the editors? What do they reveal of the underlying social disfranchisement foregrounding transitional justice efforts, the normative challenges with respect to memories of violence, and the restoration of the rights of the displaced in the context of transitional justice efforts enacted in postcolonial/ neocolonial landscapes of nationhood? 3. Of the various mechanisms of transitional justice – criminal prosecutions, truth commissions, reparations programs, and institutional reforms, to name a few – which ones do the different authors stress, and is there any particular significance attached to their choice(s)? 4. What issue does each of the authors take up with respect to mainstream transitional justice schemes, and how do they address forced and mass displacement within that context? 5. What inconsistencies or tensions between norms and practices are pointed out by the authors, both diachronically and synchronically? Here, we will only be able to probe the first of these questions in any depth with respect to the chapters brought together in the collection. That is just as well, for the function of a preface is to raise questions about the different frames used for providing answers rather than to signal the answers offered in the volume itself.

redefining transitional justice The volume is divided into three parts. The first part is titled “The Past as the Memory of the Future’,” where we have a powerful chapter by the Indian political theorist Ranabir Samaddar, writing against the very notion of transitional justice in its cleansed and insulated format, as well as chapters by Turkish jurist Turgut Tarhanlı and Turkish-Canadian legal scholar Nergis Canefe on how to deal with the law when it does not deliver. The second part

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is “Law, Justice, and Hope,” and it includes lengthy debates by SpanishAmerican political scientist Marisa Ensor, Colombian academic and activist Fabio Andre´s Dı´az Pabo´n, Sri Lankan-Canadian jurist Jessica Chandrashekar, and Assyrian-Canadian political scientists Shamiran Mako and Hannibal Travis on issues pertaining to the “practices” of transitional justice as they directly affect displaced populations. The third and last part is titled “Ethics of Witnessing,” and it includes chapters by Israeli-American legal scholar Galya Ben-Arieh, Indian political scientists Nasreen Chowdhory and Shamna Thachampoyil, Turkish legal scholar Lami Bertan Tokuzlu, and South African scholars Helen Hintjens and Jackson Odong. There is an important additional debate in this last part pertaining to the silence of categories in the larger context of transitional justice and forced migration work, which ends the volume not on a high but a cautious note. Rather than discussing the chapters in the order they are presented in the volume, let us instead begin with the two chapters on African displacement focused on the Great Lakes region in order to extract the authors’ conceptual concerns. In the existing literature, there have been at least three different streams promoting transitional justice with respect to Rwanda in particular: (1) the International Criminal Tribunal for Rwanda trials instigated by the United Nations; (2) the efforts of nations other than Rwanda in setting up third-country trials to try alleged participants in the Rwandan genocide, and, most importantly, (3) the effort of Rwandese society itself through national trials for the most important perpetrators and the use of gacaca courts – which are community-based local and nonprofessional quasi-judicial proceedings – to deal with the vast numbers of Rwandans accused of participating in the genocide. With reference to these three strands, Marisa Ensor, writing about displaced children during the Rwandan genocide and its aftermath, cites the position that judicial and humanitarian actions are at odds and are governed by different motives and modes of operation. Meanwhile, she entertains a vision that transitional justice measures can be reconciled with humanitarian action on behalf of displaced persons. The objectives of the measures Ensor focuses on are both restoring national identity and engaging in society-wide reconstruction. This is part of a larger effort to balance peace and security with justice and truth. The first set of measures focuses on the future, while the latter on reconciling that past with an envisioned future. Ensor explains in detail the mechanisms of the former, which included Ingando, solidarity camps – or what some might define as reeducation camps – Itorero, leadership camps; and Umaganda, based on the Rwandan tradition of community service by citizens. They are all used to promote

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a unified national identity intended to overcome fundamental community conflicts. Community-based gacaca courts, on the other hand, though also arising out of Kinyarwanda traditions, were founded on principles of truth and reconciliation to bring those responsible for the violence before “courts” of justice, with sentences meted out in accord with different degrees of responsibility and contrition. These were also regarded as means to reconstruct a more comprehensive national identity that eschews perceived differences between Hutu and Tutsi. In other words, for Ensor, the goals of creating a unified national identity and efforts to foster retributive and restorative justice should be viewed as complementary, especially when the mechanisms of transitional justice are calibrated according to age-appropriate adjustments. However, when they are at odds with the actual aspirations of contemporary youth, and in particular when they fail to take into account the displaced outside the country as well as international norms of meting out juvenile justice, there is a significant risk that the seeds of a revival of violence are being sown. Furthermore, in practice there has been a chasm between this ideal and the use of intimidation and corruption in the gacaca courts, leading to meting out revenge and settling other scores. Hence, at least some of the mechanisms of transitional justice have been subverted from their role in promoting rehabilitation, social reintegration, and distributive justice. According to Ensor’s normative concerns, reconciliation must go far beyond individual and community efforts. It must include a general effort at national identity-building, which also reconciles the young and the mature, the citizen and the outcast/ displaced, the local community and national and international mechanisms and norms. Accordingly, she purports that an enlarged vision of reconciliation is required that goes beyond traditional conceptions of transitional justice to embrace both nation-building and developing coherent sociopolitical perspectives in tandem with the desire for long-term peace. This also means that the state cannot be regarded as a reified foundation for setting out distinctive structures and functions related to governance. Rather, we must pay closer attention to a dynamic institutional process that must itself reconcile empirical reality with normative goals in service of a societal vision and an ideal. But what is the relationship between this ideal and the efforts at reconstitution and fundamental political change? How do the latter instill new and higher levels of moral consciousness? Therein lies a paradox. At least for the liberal ideal commonly used by architects of transitional justice models, there are understood to be boundaries and limits to the role of government, which are defined in terms of the protection of individual rights and freedoms. In other words, the state itself is to be controlled and delimited. Therefore, the kind of morally charged

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model of transitional justice espoused by Ensor poses a dilemma for exploring the relationship between the desires of the displaced and the politics of a regime. This is guided by Hannah Arendt’s insight that constitutionmaking is entailed in each and every act of transitional justice as the very means by which a people imagines a new body politic – something larger than providing a foundation for a political order, and certainly much larger than the kind of constitutionalism defined as the protection of negative liberties. Though in the same spirit, Helen Hintjens and Jackson Odong’s chapter attacks the issue of transitional justice from a much larger geopolitical perspective. Their work on the Great Lakes region of Africa focuses on crossborder displacements rather than just returning youth, but has a far narrower concern: the mechanism of reparations as part of the toolbox of truth and reconciliation efforts, an ideal which echoes the truism that there can be no reconciliation without restitution. Yet their chapter avoids reverting to a narrower, strictly legal approach. Similar to Ensor, the authors conceive of reconciliation efforts as entailing an even larger task, that of reconciling a local, community-based, or vernacular sense of justice with conceptions of justice at both the national and international levels, as perpetrators are held responsible for their crimes and victims compensated for their suffering – for justice promoted by Western donors may be very different than what is perceived and experienced locally. They then ask pertinent but difficult questions about political power and authority – who decides about both the policies and practices of transitional justice, and in particular the mechanism for implementing reparations? They offer a critical and fundamental inquiry into the role of restitution, not simply as the restoration of what went wrong before, but as a means of transition from authoritarian rule to democracy. While Ensor primarily dealt with gacaca courts, Hintjens and Odong focus on the International Criminal Court (ICC) in The Hague, and more specifically the Bemba case from the Central African Republic (CAR), the Lubanga Case from the Democratic Republic of the Congo (DRC), the Mau Mau claims for justice in the British courts, and the trials of perpetrators in the Lord’s Resistance Army (LRA), although not the crimes committed against the Acholi by the Ugandan forces. For them, transitional justice must be considered “first and foremost a global project,” while peace-building, with which it is in tension as it was for Ensor, is more relevant at the local level, as in the Acholi practice of mato oput, the ceremonial ritual of drinking bitter weed for forgiveness. Furthermore, as with Ensor, the displaced are identified as those outside the national systems of both reconciliation through reparations and peace-building through contemporary adaptations of local customs. The displaced are both geographically removed and unjustly treated by a system of

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purported justice, one that is also patently falling short of the demands of the rule of law with respect to the running of prisons, the conduct of the police, and the injudiciousness of the courts. Similar to Ensor, these authors also warn us that these exercises of insensitivity and injudiciousness prepare the soil in which future potential violence could be planted. Yet international law remains crucial to the enterprise of transitional justice in providing continuity, meaning, and legal certitude. That continuity is provided by overriding domestic law and by establishing a counterpoint to the corrupt norms of a previous repressive political regime as well as the violent propensities of a current one. It is essential for curtailing the emergence of new forms of repression in the name of revolutionary efforts, as well. But how is this lofty function to be reconciled with local practices without riding roughshod over them? How can such normative transcendence be achieved? Some of these questions are directly addressed in Nergis Canefe’s piece on hybrid courts in the Global South. Overall, Canefe concludes, the two perspectives of the local and the international are clearly complementary. Indeed, all of the chapters in this volume argue for a more comprehensive approach, one sensitive to both local patterns and concerns and to transnational norms. When we shift to chapters dealing with transitional justice and peace in the Middle East, for instance, in Turgut Tarhanlı’s chapter on the alternative conceptions of a system of justice in transition in Turkey concerning the Armenian question, or the long-term effects of continuing forced displacement in Iraq, we find ourselves not simply in a different geographical area but also in effect in a repetition of similar troubling scenarios being played out in the name of securing justice. The common theme that runs through these accounts of varied regional experiences is of course mass displacement; hence the volume’s very title. All of the chapters are first and foremost about continuing displacement, rather than the failure of regimes of transitional justice to adequately address the needs of the displaced. As succinctly highlighted in the chapter written by Shamiran Mako and Hannibal Travis, “The Right of Return in Iraq: Conceptualizing Insecurity, State Fragility, and Forced Displacement,” international and domestic efforts to foster return have failed, given a highly fragmented and volatile security environment, the gravity of ethno-religious and sectarian violence, governmental participation in such violence, and the poor socioeconomic prospects of the returnees. Vernacular and international norms have totally failed not only the displaced but also the minorities throughout Iraq. Calling the Iraqi War an effort in incongruent statebuilding hides the enormity of this failure. These are also themes raised by Galya Ben-Arieh’s work on rape as a crime that is insufficiently codified in

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both national and international jurisdiction. Ben-Arieh’s work also touches upon the ephemeral nature of how testimony is used and abused in criminal proceedings, or their absence thereof in episodes of systemic rape. Specifically, Ben-Arieh unearths forgotten histories of mass crimes through the lens of unforgivable and yet silenced crimes. Closer in time, in today’s Syria, as various armies backed by different outside powers near the endgame while outside regional and world powers – Russia, Iran, Turkey, and the United States – compete to control the remote but rich desert region of Deir al-Zour with its enormous reserves of fossil fuel, both international law and state law become surrogates for the way power is allocated rather than means to establish a legal authority rooted in justice. All of this is complicated by the Syrian Kurdish aspirations to their own nationstate and the traditional norms protecting and reifying established national borders. The virtually inevitable result has been more war, more refugees, and the displacement of millions yet again, with ever greater difficulty of return. What was experienced in Iraq thus repeats itself in Syria. Without the prospect of justice there is no return, and without the ending of forced migration there could be no justice. Further, the galvanization of ethnic and sectarian strife did not begin with the mess instigated by the Iraqi War initiated by President Bush in 2003. It did not begin with the way “peace” was conducted. The ethnic cleansing of Middle Eastern Christians from Iraq, the oldest Christian communities in the world, has been taking place at least since 1990. As Mako and Travis reveal, Iraqi Christians – Syriacs, Armenians, Kurds, Arabs, and Turkmens – were then at 1.4 million, constituting 8.5 percent of the population. In 2003, the percentage of these communities had dropped to just over 7 percent of the population. By 2018, they were less than 1 percent of the Iraqi population. This precipitous decline began with and followed the invasion of the country. In addition, other minorities have been and continue to be cleansed – Yazidis, Shias, Sunnis, Mandeans, Shabacks, and non-Christian Turkmen to name a few. In fact, the mandate of ethnic cleansing began almost from the beginning of the Iraqi state. The authors aptly mention the forced exodus of Iraqi Jews in the 1940s and early 1950s, which certainly cannot be traced to the 2003 Iraqi War. Thus, displacement lies at the core of the postcolonial Iraqi constitution – both in its legal and broader senses – and the construction of the very state. This brings us to the work of Lami Bertan Tokuzlu, who has contributed the longest chapter in the collection, titled “The Principle of Legal Certainty: Impact Assessment of the Syrian Refugee Crisis on the Turkish Law on Foreigners and International Protection.” The chapter does not analyze the

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ongoing displacement of minorities and consolidation of “majorities” into homogeneous enclaves, as the majority of the other chapters with case studies do. Rather, it focuses squarely on the application of the Turkish government’s effort to conform to international standards – more particularly, those set by the European Union with respect to refugee asylum and protection through the April 2013 Law No. 6458 (LIFP). In the aftermath, administrative regulatory codes have been enacted and judicial changes and case law have begun to take shape, albeit with many more changes yet to be introduced. Tokuzlu posits that in Turkey, in response to the Syrian exodus, a new normative structure bringing international protection and migration into the modern age and an organizational structure capable of implementing these principles were brought to life in a relatively short period of time. Previously, sovereign rights were at the forefront, rather than the rights of the displaced. As a result, arbitrariness tinged with a degree of ethno-nationalism favoring Turkic minorities has long dominated Turkish administrative practices, given the absence of a solid legal foundation. Tokuzlu states that issues that came to the fore included obsessive questioning of potential marriages of convenience and the definition of grounds for suspicion for launching investigations. There was also the problem of how and under what criteria risk had to be determined and presented as evidence, and the basis of assessing its reliability when state security concerns limited access to empirical data for determining risk. These and other issues common to most asylum regimes in the Global North are clearly relevant to transitional justice pertaining to the ordeal of the displaced. But we must also ask whether they have an impact on transitional justice in the country from which the individual fled. No doubt the Turkish case discussed by Tokuzlu is an example of the malleability of a concept of transitional justice, in the sense that, similar to many of the chapters in the volume dealing with displacement in the Global South, regimes of regulation of migration as well as the addressing of past wrongs cannot be discussed solely on the basis of country profiles but must entertain a regional perspective. In another chapter – on yet another geographical area falling under the purview of debates on the Global South, that of Sri Lanka – Nasreen Chowdhory and Shamna Thachampoyil’s “Transitional Justice, Reconciliation, and Reconstruction Process: The Case of Former LTTE Female Combatants in Postwar Sri Lanka” offers an altogether different angle. In their work, the concept of transitional justice is used to highlight the absence of transitional justice in general in situations of displacement, specifically the treatment of militant female Tamils. The self-determination of approximately 75 percent of the population, the Sinhalese, has been advanced at the expense of that of 11 percent of the

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population, the Tamils, who are concentrated largely in the north and north-east of Sri Lanka, with the suggestion that those who have suffered the most have been the LTTE women. However, while solely concentrating on the Sri Lankan Tamil experience, the authors had to leave out of consideration that the Moors, who intermarried and constitute another about 9 percent of the population, concentrated largely in the south, as they are not significantly involved in efforts at selfdetermination. Nor are the Indian Tamils included in this discussion, who were imported to work on the tea plantations in the center of the country back in the nineteenth century. This is despite the fact that they constitute 4 percent of the population of Sri Lanka and have suffered some of the worst forms of forced displacement because they were never granted citizenship in the first place. As such, one becomes aware that the nexus of displacement and transitional justice tends to focus only on groups with strong narratives of self-determination. The absence of gender sensitivity means that these women face a double handicap, due to their gender identity in addition to their ethnic identity as Tamil nationalists. The neglect is not just confined to Tamil women in the combat zones, nor even to a narrower focus on women combatants everywhere, if only because academic focus on women combatants, let alone their displacement, resettlement, and reintegration, has been largely absent, and specifically so in terms of their inclusion in the process of transitional justice. Tamil female ex-combatants are faced with obstacles not only to Tamil national self-determination but within Tamil society as well as in the larger context of a male patriarchal Sri Lanka. A similar debate is presented by Jessica Chandrashekar in her chapter illustrating the role state-based truth commissions have played in postwar nation-building when they are conducted during the resettlement of those who were forcibly displaced during the conflict. Chandrashekar examines the transcripts of testimonies made to the Lessons Learnt and Reconciliation Commission (LLRC) during the commission’s field visits to war-affected communities in the Northern Province and questions the role of the commission in the process of resettling those who were forcibly displaced by war by again forcibly “placing” Tamil war survivors into the postwar Sri Lankan nation-state. At the least, however, there has been an effort made by the Sri Lankan Lessons Learnt and Reconciliation Commission (LLRC). For in the end, the process of self-determination – whether of Tamil citizens of Sri Lanka as Tamil nationalists or as Sri Lankan citizens – entails enhancing agency; and that is an issue that female excombatants face in threefold, as females in a patriarchal society, as Tamils rebels in a movement in which women were projected as having a special role in protecting and enhancing Tamil culture, and as both combatants and excombatants. To the degree that such an effort fails, we find two aspirations

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murdered: that of Tamil nationalism and that of female liberation when the latter can be coopted to help redefine Sri Lankan society as a whole. Chowdhory and Thachampoyil’s as well as Chandrashekar’s chapters prove that both national self-determination and transitional justice are moving targets that continue to shift over the trajectory of the Sri Lankan conflict and afterward. As well, the treatment of Tamil women ex-combatants reverberates back into the effort of both sides in the conflict to define selfdetermination from the perspective of their own “ethnic” group and to achieve their own aspirations for agency. They also signify the multiple intellectual and normative frameworks utilized by scholars engaged in the analysis of transitional justice as it pertains to forced migration. In this case, the writers are unequivocal – they stand solidly behind an agenda of liberating women in pre-conflict, conflict, and especially post-conflict reintegration, a process that requires deconstructing not only militant agencies but gender identities as well. In that sense, identity transformation is being advanced as an ideal as physical displacement is being reversed. Finally, the chapter by Fabio Andre´s Dı´az Pabo´n on the Colombian conflict is perhaps an outlier, as it strives to predict the best possible scenario that could come out of a very long and destructive conflict, with many sides involved and also benefitting from it. In his chapter, Dı´az Pabo´n strives to demonstrate that simulation models, and in particular system dynamics models, could be used as an efficient tool for examining policies that could allow public servants and service providers to learn and evaluate the different scenarios they are facing in delivering transitional justice remedies. The particular cases chosen are reparations and restitution of land rights for the victims of forced displacement in Colombia. The chapter successfully analyzes the nature of the challenge for government institutions in tackling the results of decades-long conflict in the country. But it goes one step further and links these issues with the necessity of using managerial tools to assess public policy initiatives within the overall mandate of the Colombian transitional justice model. In conclusion, the chapters that make up the book are clearly far-ranging in terms of the application of the concept of transitional justice when transitioning from a repressive and violent to a just order. The concept has even greater significance, albeit possessing a markedly shape-shifting nature when it is applied to transition from an arbitrary legal asylum system to one in compliance with international law with all the requisite development of the administrative law components. This is aptly illustrated in Ranabir Samaddar’s opening chapter to the volume, “Borderlands of Independent India: Transition, Violence, and Justice.” Samaddar succinctly establishes lineages

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between governmentality, security, legality, and displacement in the context of postcolonial India, thereby debunking the myth that wholesale transitions are indeed possible if only one could introduce the right elements of law into the system. As he suggests, there are not simply different regimes at stake, or a repressive opposed to one based on rights and freedoms. These are ideal types that blur our vision of what the past was and what the present is, before we yearn for a very different future. Hence our final question: could these chapters offer best practices for transitioning between two different political and legal regimes and envisage models to develop full accountability for state criminality in seeking justice? Likely not; and neither is this their intent. And yet the reason for this seeming deficit does not lie with the scholarship on offer here. Law, in its international, regional, national, and local forms, does play a crucial role in such transitions and in advancing truth where societal change is so critical. But how does law deal with the dispossessed? Transitional strategies dealing with the displaced are crucial in defining the ethos of the overall legal regime and determining the character of a post-conflict body politic. These are not the tasks of law given its priority on maintaining an existing system. This volume as a whole addresses this perturbing tension, with conviction and success. When a new or emergent political system must deal with the perpetrators of crimes committed in the old regime under the existing law, while also dealing with reparations for the victims and especially those who are displaced, the transition becomes ever more complicated. If the judiciary is given the responsibility of playing a key role in this transition but, as an institution, is still identified with the old order, the effort to promote change becomes most difficult. Since the politics and histories of the conflicts covered in this volume are so varied, it seems impossible to provide a guiding model in dealing with such a host of changes, regardless of the amount of comparative work done in this field. If we then add onto this list the situation of the displaced and the dispossessed masses, one point becomes all the more obvious. Not only is it important to understand the political and historical context of a given conflict and the stakes at play, but the intellectual and normative framework developed by scholars trying to probe the sensitive and equally difficult issue of the nexus of transitional justice and displacement is part and parcel of imagining a new future. Howard Adelman and Nergis Canefe

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Acknowledgements

This volume immensely benefitted from the support and guidance of Susan McGarth, Michele Millard, Paula Banerjee, Roberto Vidal, Loren Landau, Chris Dolan, and several other colleagues, advocates, legal experts and students of forced migration and international criminal law who work on mass exodus and state criminality in the Global South. Special thanks are also due to John Berger, Jonathan Adjemian and Josef Wolanczyk for their superb sense of the totality of the text and their unfailing commitment to the final product.

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Abbreviations

1951 Geneva Convention ABMSU ACHR ACP AGC AU BPF CAR CCt CERD CIRF CLA CMG CPA DDR DEVAW DGMM DOD DRC EAC ECCC

1951 Geneva Convention on the Status of Refugees All Bodoland Minority Students’ Union Arab Charter on Human Rights [Northern Ireland] Ardoyne Commemoration Project United Self-Defense Forces of Colombia African Union Bodoland People’s Front Central African Republic Turkish Constitutional Court Committee on the Elimination of Racial Discrimination US Commission on International Religious Freedom Ceylon Language Act of 1956 Calcutta Municipal Gazette [Iraq] Coalition Provisional Authority [Uganda] Disarmament, Demobilization, and Reintegration Declaration on the Elimination of Violence Against Women Directorate General of Migration Management [United States] Department of Defense Democratic Republic of the Congo Extraordinary African Chambers Extraordinary Chambers in the Courts of Cambodia xxviii

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List of Abbreviations

ECHR ECtHR ELN EPL EU FA FAR FARC-EP FGC GoB GoU ICC ICCT ICD ICG ICJ ICRC ICTR ICTY IDP IGAD ILO IMT INGO IOM ISIL ISIS KRG LFIP LLRC LLRC LRA

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European Convention on Human Rights European Court of Human Rights Eje´rcito de Liberacio´n Nacional – National Liberation Army (Colombia) Eje´rcito Popular de Liberacio´n – Popular Liberation Army of Colombia European Union [Indian] Foreigners’ Act of 1946 Rwandan Armed Forces Revolutionary Armed Forces of Colombia – People’s Army female genital cutting Government of Bengal Government of Uganda International Criminal Court International Criminal Courts and Tribunals International Crimes Division of the High Court of Uganda International Crisis Group International Court of Justice International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia Internally Displaced Persons Intergovernmental Authority on Development International Labour Organization International Military Tribunals international nongovernmental organization International Organization for Migration Islamic State of Iraq and the Levant Islamic State of Iraq and Syria [Iraq] Kurdistan Regional Government [Turkey] Law No. 6458 on Foreigners and International Protection Lessons Learnt and Reconciliation Commission [Sri Lankan] Lessons Learnt and Reconciliation Commission Lord’s Resistance Army

xxx

List of Abbreviations

LTTE

Liberation Tigers of Tamil Eelam – Tamil Elam Vitutalaip Pulikal Me´decins Sans Frontie`res National Commission for Human Rights, Rwanda nongovernmental organization [Rwandan] National Revolutionary Movement for Development Party North Uganda Media Club [Rwandan] National Unity and Reconciliation Commission UN Office for the Coordination of Humanitarian Affairs [Iraq] Property Claims Commission Rwandan Patriotic Front Refugee Status Determination Registry of Forcibly Dispossessed and Abandoned Lands – Registro de Tierras Despojadas y Abandonadas Forzosamente Sexual and Gender-Based Violence Third World Approaches to International Law Unidad Administrativa Especial de Gestio´n de Restitucio´n de Tierras Despojadas United Nations UN Assistance Mission for Iraq United Nations Committee on the Rights of the Child UN Office of the High Commissioner for Human Rights United Nations High Commissioner for Refugees United Nations International Children’s Emergency Fund United Nations Relief and Works Agency for Palestine Refugees in the Near East United Nations Security Council [Congo] Union des Patriotes Congolaises Uganda People’s Defence Force

MSF NCHR NGO NRMD NUMEC NURC OCHA PCC RPF RSD RTDAF

SGBV TWAIL UAEGRD UN UNAMI UNCRC UNHCHR UNHCR UNICEF UNRWA UNSC UPC UPDF

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List of Abbreviations

URT USAID USDS WBS WCZNet WWII

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Unidad de Restitucio´n de Tierras – Land Restitution Unit US Agency for International Development United States Department of State West Bengal State Archives Women in Conflict Zones Network World War II

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In Lieu of an Introduction Orbis Tertius as Vantage Point Nergis Canefe

This edited volume aims to foster an in-depth understanding of the nexus of transitional justice and forced migration studies in a comparative framework, with a particular emphasis on debates emanating from the Global South. Each of the contributions to this volume adheres to a multidisciplinary and multi-sectorial approach, incorporating academic, practitioner, and activist work, in tandem with both global and local perspectives. In order to achieve such a synthesis, the authors build upon the knowledge accrued by collaborative networks, their involvement in both scholarly and activist organizations, and their experience as practitioners in select locale. Normatively or politically speaking, the study of human suffering, induced by mass political violence and at the hands of states turned against their own peoples, is not an easy one. This volume is a collective effort in examining the underlying social disfranchisement, socioeconomic predicaments, and normative challenges pertaining to the remembrance of violence and the restoration of the rights of the displaced, in the context of transitional justice projects being enacted in postcolonial/neocolonial landscapes of nationhood. As such, establishing connections between documentation, deliberation, and research, together with an overall awareness of ethics of witnessing, are essential components of this project. Forced migration and transitional justice are two areas of scholarship that are often attended to by different academic communities; similarly, the causes and strategies pertaining to each are addressed by separate activist and victims’ groups, policy-makers, donors, and agencies. Is it possible to bring together the work done by these various actors and groups and to make sense of their *

Orbis Tertius, Latin for “World Three” or the Third Orb, is used after the Jorge Luis Borges short story “Tlo¨n, Uqbar, Orbis Tertius.” Orbis Tertius connotes the realm of imagination, a collective vision of what is yet to come.

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Nergis Canefe

approaches and experiences pertaining to human displacement and its links with transitional justice at a global level? This is the question that brought us together in penning our respective contributions. Concomitantly, the volume is divided into three sections. The first section is devoted to theoretical exercises that identify patterns, as well as unique approaches that have emanated from the practices and debates in the Global South since the post-1945 period. The second section engages with post-conflict restorative justice projects and the specificities of their undertaking in select regions. It has often been powerful postcolonial states that had to deal with mass political violence and the related displacement. Of these, pieces in this volume reflect on the post-conflict experiences of displaced populations in India, Turkey, Uganda, Sri Lanka, and Colombia. The last section is dedicated to a debate on key concepts that pertain to the nexus of forced migration and transitional justice studies. In particular, the contributors examine notions such as nonconventional approaches to forced migration, conundrums pertaining to statelessness, the ethics of witnessing, and intersections between qualitative and quantitative research. Each of the participants in this conceptual roundtable start from an acute awareness of the disparity, disjuncture, or perhaps abyss that exists between the coded and charted waters of transitional justice studies in the Global North and the cumbersome, puzzling, and shaded realities of postconflict histories in the Global South. “Unwanted peoples,” refugees, exiled and displaced populations, stateless peoples, and other subjects of forced migration have always played a significant role in the economic, political, and social agendas of sovereign states. Since 1945, millions of people have been uprooted and subjected to partitions, forced population exchanges, purges, and cleansings as part of the nation-building process in the postcolonial, and later on neocolonial, world orders. However, the people who suffered and continue to suffer such a fate are not captured by the legal definition of refugeehood alone. Forced migration studies must broaden its scope of analysis and incorporate some of the foundational debates pertaining to postcolonial and neocolonial statecraft, as well as practices denoted under the umbrella term “transitional justice.” In international law, a refugee – as enshrined in the 1951 Refugee Convention and subsequent protocols – is someone who “is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” What has emerged at the global scale from state-induced displacements is a much more complicated picture than this codification can capture. Statelessness, the permanent limbo of internal displacement, dispossession of partitioned populations, dispossessed minorities, and forcibly

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resettled returnees are also part of the equation. The multifaceted nature of displacement-related human suffering shows itself best when viewed from the vantage point of transitional justice. Meanwhile, developing an understanding of the causes and consequences of displacement, forced migration, and statelessness, and gaining the intellectual and practical skills to deal effectively with the challenges posed by these recurrent and cyclical phenomena are essential endeavors often left on the margins of transitional justice scholarship. In other words, both fields suffer from a dangerous short-sightedness concerning the structural causes of long-term human suffering related to internal, state-induced, or statecondoned conflict and related mass violence. This lacuna is most curious when one considers the fact that since the end of the Cold War the number of internally displaced persons (IDPs) has far outnumbered the world’s refugee population. By 2010, according to the UN Refugee Agency United Nations High Commissioner for Refugees’ (UNHCR) estimates, there were some 11 million refugees and asylum seekers and a further 27.5 million IDPs worldwide. Needless to say, these numbers at least doubled since the Syrian exodus starting in 2011. Figuratively speaking, they make a permanent country in no man’s land. The volume at hand attempts to establish tangible links between lack of societal peace, structural causes of human suffering, recurrent patterns of political violence – all of which constitute the traditional subject matter of transitional justice – and forced migration in the Global South. However, its subject matter is not just the postcolonial states caught up in this web of entanglements, but international agencies, NGOs, and scholars of transitional justice and forced migration studies located in the Global North – where the big donors are located, fueling and shaping much of the resettlement or reconciliation efforts. Since the 1970s, transitional justice has largely been associated with victims’ advocacy movements and a special set of legal mechanisms that are expected to reinforce efforts at moving forward in the aftermath of mass societal and political violence. This is what is commonly seen, in the Canadian context, in the work endorsed by the SSHRC and IDRC, and in the American context in work encouraged and funded by think tanks, institutions, and research hubs. European involvement in these issues take a similar format as well, mostly endorsed by independently funded civil society/sponsor organizations and research institutes, with Germany, Austria, and Scandinavian countries taking the lead in these matters. Here, in a somewhat contrarian vein, our tenet is to question this confining definition of transitional justice, and its often heavily prescriptive presumptions about sociopolitical and historical change. We do this from the point of view of debates on transitional justice taking place in the Global South,

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through the lens of forced migration, displacement, and related forms of human suffering. In order to evaluate the long-term political significance and deep-seated socio-ethical dimensions of these movements, one has to look beyond the traditional transitional justice arsenal of policy measures and legal arrangements. Reform, reconciliation, restitution, resettlement, and reparation do not exist in a vacuum. In this regard, right of return for the displaced, select and targeted use of amnesties, governmental and social orchestrations of political amnesia, as well as countermeasures against the forgetting of the experiences of traumatized groups, legal and pseudo-legal accountability measures, restorative justice schemes including compensation and redistribution programs, sociocultural projects for recovery from societal trauma, and calls for collective responsibility must be examined based on long-term successes and failures in four regional hubs of forced migration and displacement. The methodological approach we have chosen for this volume is heavily informed by the work of critical legal scholars and political theorists who have drawn attention to the dual role of law – in this case, administrative, criminal, and constitutional law as they pertain to transitional justice – in relation to violence: protective of the status quo, on the one hand, and regenerative of a new sociopolitical order, on the other. This kind of analysis is often not undertaken outside the immediate regions where mass political violence takes place. We question the reasons behind these restrictive choices that lock us into area studies modalities, as they often amount to something much more than simple methodological preferences. Conceptually guided comparative work allows for across-the-board pattern recognition in statecraft and maintenance of legitimacy in postcolonial and postimperial settings. Lack of it, on the other hand, locks us in perpetuity into regional local informant status. While law can be a tool for responding to violence and exposing abuses of power, it is also utilized to obfuscate and legitimate abuses of political authority. In this regard, it is puzzling that for many decades scholarship emanating from the Global North concentrated mainly on the “corrective” aspects of legal and semi-legal practices associated with transitional justice measures and movements in the Global South. This led to widespread instrumentalization of a particular understanding of sociopolitical change at times of war and in the aftermath of mass conflict. Rarely has enough attention been paid to the desire to create new forms of justice, capable of questioning the legitimacy of the prior political – and, at times, legal – practices that led to the institutional and societal commission and subsequent denial of mass violence. In contradistinction, the transitional justice–related work presented in this volume transform the terms of the debate regarding past abuses of power. The

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contributors are keen to acknowledge that governments often use transitional justice programs and projects as a framework to reestablish their legitimacy. In this context, there is major concern about the co-option of transitional justice projects by governments for political gain. The challenges and demands concerning reinterpretations of a traumatic past by a “new regime” are not limited to practical ones related to the application of transitional schemes. There are real politico-ethical clashes and confrontations that take place, since what is at stake is imagining the future of the society as a whole while coming to terms with its past. Until very recently, these concerns have largely been missing in the scholarship that habitually emanates from the Global North, including research centers and international think tanks engaged with the issue, such as the well-respected and well-endowed International Center for Transitional Justice located in New York, USA; the Peace Research Institute in Oslo, Norway; and special programs organized by the MacArthur, Carnegie Endowment or Ford Foundations, the Hans Bo¨ckler Foundation in Germany, or the Open Society Institute and Helsinki Citizens’ Assembly chapters across Europe. Projects funded in these circles often solely concentrate on “solid criteria” to prove to the outside world that “transition to democracy” is complete or at least underway in a given constituency. This volume begs to differ. Not only will it shed light on “alternative realities” of transitional justice, but the authors are collectively committed to developing a critical understanding of the tension in the production and dissemination of knowledge pertaining to the nexus of transitional justice and forced migration. The expertise and work of scholars, activists, and legal practitioners located in the Global South, with decades-long experience in several regional hubs of forced migration movements, allow us to unpack the problematic assumptions and unacknowledged trade-offs associated with canonized claims about transitional justice projects, institutions, and practices. Furthermore, focus on nonconventional measures and policies that advance not just institutional but genuine political reconciliation and on the societal acknowledgement of responsibility for mass atrocities is paramount. Such a hybrid approach could establish a much-needed platform for comparative work and exchange among scholars situated in the Global South and institutions and research centers in North America. Based on regional cases related to the Middle East, South East Asia, Latin America, and Africa, it is important to pay attention to the implications of the historical trends, shown in these studies, for the funding and institutionalization of transitional justice projects and programs at a global scale as they relate to human displacement. As that work is done, we can start asking new questions and put the older, repetitive ones to rest.

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part i

the past as the memory of the future

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1 Borderlands of Independent India Transition, Violence, and Justice Ranabir Samaddar

introduction When the British left India, they left the country in ruins. The mutual killings had started in 1946 in Kolkata with the infamous Great Calcutta Riot. The riot left an estimated 10,000–15,000 dead in five days and 200,000 displaced.1 The government had to call the army to quell the riot, and this became the pattern 1

The actual figures of the dead and displaced may never be finally known. We have various reports of unaccounted bodies being recovered in the following days and months. On deaths: it was difficult to distinguish between deaths occurring between 16 and 20 August and in the following week. Thus, for instance, between 22 and 29 August, when sporadic murders were continuing, about twenty dead bodies in various stages of decomposition were recovered from the streets. From the morgue, 100 bodies were recovered in this period, from the streets 20, and from other places 12 (File no. 398/46, Home Political, Government of Bengal [hereafter GoB], West Bengal State Archives [hereafter WBS]), p. 8). Decomposed bodies also meant that the figures of Hindu deaths and Muslim deaths may not be correct. One note in the police file spoke of asking the Hindu Satkar Samity to recheck whether the bodies it cremated were those of Hindus, in view of the high state of decomposition (File no. 398/46, Appendix A, Home Political, GoB, WBSA). We also do not have any comprehensive account of displacement, relief, and rehabilitation. In many cases Hindu and Muslim charity organizations, as well as the Hindu Mahasabha, the Congress, and the Muslim League, ran their own efforts to help the distressed. On the displaced, we have this particular news item: ‘The total number of destitute in Government centers in Calcutta was during the last week of November 13,800, of whom 5,000 were refugees from Bihar. In addition about 1,500 refugees had passed through Government camps to their destinations in Calcutta and elsewhere. This information was given by Sir Walter Garner, Relief Commissioner, Bengal. Sir Walter said that the relief Department was anticipating increased pressure on its organization in Calcutta during the next few weeks, partly as a result of the influx of refugees from Bihar and partly on account of general economic conditions. The Bengal Government had made no representations to the refugees arriving from that province.’ See Calcutta Municipal Gazette (CMG), XLV, no. 1–2, 30 November–7 December 1946, 5–6. In another issue, the Gazette reported on the rehabilitation situation and the works by the then Bengal government regarding rehabilitation of the citizens displaced from the city due to riots. See CMG, XLV, no. 4, 21 December 1946, 78. The government also put ‘emphasis on rehabilitation of the displaced citizens from the bustees in

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both in the Punjab and Bengal. As the hour of independence approached, communities attacked each other in the entire northern, western, and eastern parts of the country. Acts of killing, burning, ransacking, rape, looting, maiming, and displacing spread like wildfire. The army had to be rushed to several places. What did independence mean, what was signified by freedom, and what was political power to be used for? What was sovereignty? If people were sovereign, did this mean Hindus exercising sovereignty over everyone else, or Muslims, or autonomous regions? What did the term ‘nation’ actually mean when everyone was talking of the nation gaining sovereignty, all at the same time? For the British, the main thing was getting out of India as quickly as possible and until then maintaining the minimum of law and order. For the Indian National Congress, this meant ruling India by preventing further anarchy, re-establishing order, giving the country a constitution, and holding elections to legitimize nationalist rule; for the Muslim League, the task was to build a Muslim Pakistan (that is, the Muslim-majority parts of India in the east and the west) out of the ruins it had inherited. The way the country was partitioned, however, left Jammu and Kashmir’s fate undecided – a fate that today tells a story through thousands of deaths and four wars between India and Pakistan. Independence also meant the obligation to define what would happen to areas not ruled by the British – for instance, the Naga Hills and other areas in the north-east. Yet again, there was little agreement between the parties concerned on these ‘other’ claims to independence, and whatever consensus was reached quickly broke down in less than a decade. The dialogue between the imperial ruler and the colonized parties was never inclusive and federal.2 Ultimately, the British left amidst the mess and the principle of the ‘white man’s burden’ was formally’ over. Responsibility for the loss of lives, massive destruction, and wars fell on none. Transition had no element of justice. Natives were to fight it out among themselves. The age of transitional justice was at least four decades away. Instead, this was the age of transitional violence in the subcontinent, which in some sense continues to this day. On the issue of displacement and refugees, lack of responsibility will become particularly clear. We do not have any exact figure for the deaths

2

their previous homes’. Bihari refugees were accommodated in the Talah Park previously occupied by the military. CMG, XLV, no. 18–21, 26 April 1947, 407. The three Roundtable Conferences (in 1930, 1931, and 1932) held by the British were marked by bickering and abstention. The Roundtable Conferences led to the Government of India Act of 1935. The Act was evidence of the contentious nature of the deliberations and extremely limited the nature of power to be devolved on the Indians through the Act, which became in several aspects the model for the Indian Constitution.

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and displacements that occurred in the wake of the Partition – perhaps half a million died, nearly fifteen million were displaced, and many were internally displaced.3 The two young nation states – India and Pakistan – accommodated refugees as far as possible, but differentially. Thus, for instance, refugees from East Pakistan to India were less fortunate than those from West Pakistan. Similarly, mohajirs from northern parts of India were less fortunate on arrival in Pakistan than the refugees from the eastern part of the Punjab. But the most scandalous part of the transition scenario was that the colonial rulers, the British, exited without even acknowledging any responsibility for the ruin in which they were leaving the country and did nothing in terms of the protection and care of 3

Estimates of death varied – from a low of about 500,000 to a high figure of 2,000,000. Massive population exchanges took place between the two countries in the months following Partition. The population of undivided India in 1947 was approximately 390 million. At the time of Partition, 330 million people were in India, 30 million in West Pakistan, and 30 million people in East Pakistan (now Bangladesh). Once the borders were established, about 14.5 million people crossed the borders. The 1951 Census of Pakistan identified the number of displaced persons in Pakistan at 7,226,600, presumably all Muslims who had entered Pakistan from India. Similarly, the 1951 Census of India enumerated 7,295,870 displaced persons, apparently all Hindus and Sikhs moving to India from Pakistan after the Partition. Since both censuses were held about 3.6 years after the Partition, the enumeration included net population increase after the mass migration. About 11.2 million (77.4 per cent of the displaced persons) were in the west, with the Punjab accounting for most of it: 6.5 million Muslims moved from India to West Pakistan, and 4.7 million Hindus and Sikhs moved from West Pakistan to India; thus the net migration in the west from India to West Pakistan (now Pakistan) was 1.8 million. The remaining 3.3 million (22.6 per cent of the displaced persons) were in the east: 2.6 million moved from East Pakistan to India and 0.7 million moved from India to East Pakistan (now Bangladesh); thus net migration in the east was 1.9 million into India. On this there is a considerable amount of literature, with estimates varying. See as instances, Ishtiaq Ahmed, The Punjab Bloodied, Partitioned and Cleansed: Unravelling the 1947 Tragedy through Secret British Reports and First-Person Accounts (Karachi: Oxford University Press, 2012); Prasant Bharadwaj, Asim Khwaja, and Atif Mian, ‘The Big March: Migratory Flows after the Partition of India’, Economic & Political Weekly 43, no. 45 (30 August 2008): 39–49; Paul R. Brass, ‘The Partition of India and Retributive Justice in the Punjab, 1946–47: Means, Methods, and Purposes’, Journal of Genocide Research 5, no. 1 (2003): 71–101; Anita Inder Singh, The Partition of India (Delhi: National Book Trust, 2006); Leszek A. Kosinski and K. Maudood Elahi, ‘Introduction’, in Population Redistribution and Development in South Asia, ed. L. A. Kosinski and K. M. Elahi (Dordrecht: D. Reidel Publishing Co., 1985), 3–14. Bharadwaj and his colleagues said: ‘The Partition of India in 1947 along ostensibly religious lines into India, Pakistan, and what eventually became Bangladesh resulted in one of the largest and most rapid migrations in human history. In this paper district level census data from archives are compiled to quantify the scale of migratory flows across the subcontinent. We estimate total migratory inflows of 14.5 million and outflows of 17.9 million, implying 3.4 million “missing” people. The paper also uncovers a substantial degree of regional variability. Flows were much larger along the western border, higher in cities and areas close to the border, and dependent heavily on the size of the “minority” religious group. The migratory flows also display a “relative replacement effect” with in-migrants moving to places that saw greater outmigration’ (Bharadwaj et al., ‘The Big March’, 39).

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the displaced. The United Nations likewise did nothing, though for a disaster that affected the soul of Europe it set up a special relief agency, the United Nations Relief and Works Agency (UNRWA), in 1948 as part of its involvement in the creation of Israel, to be followed by the foundation of the United Nations High Commissioner for Refugees (UNHCR) three years later. The nations of South Asia thus began their journey to independence without any international mechanism of transitional justice. In those heady days of decolonization they had thought, perhaps, that national independence was an accomplishment by itself. In the end, postcolonial national independence left many areas of citizenship unclarified. Who were full citizens, who were denizens, and who were stateless? For how long could refugees come in from their erstwhile mother countries? Would they automatically get citizenship? Would the sons and daughters and the survivors of the indentured labour system be able to come back to India from the West Indies, Guyana, countries in Africa, Surinam, or the Fiji Islands?4 As we know, many were not allowed to return. Many remained stateless, including Indian returnees from Burma, Indian plantation workers from Sri Lanka, and Chakmas from East Pakistan who resettled in Arunachal Pradesh in India. The missing aspect of justice in the Citizenship Act (Citizenship Act, 1955; a Bill in 2016 sought to amend it to make Hindu, Sikh, Buddhist, Jain, Parsi, and Christian illegal migrants from Afghanistan, Bangladesh, and Pakistan eligible for citizenship, while Muslims or minority Muslim sects were left out) and the Foreigners Act, 1946, are noteworthy in this regard. As if these were not enough as markers of system-wide political and social injustice, citizenship in India was increasingly veering towards the jus sanguinis principle and away from the jus soli principle. Blood (and thus descent, racial features, etc.) started to play an increasingly important role, and citizenship politics became biopolitics. The Indian story of transition from colonialism to independence raises the following question: Is not violence (and injustice connected with this) an integral part of transition, unless we link transition with social transformation? In the latter case, justice – political and social – provides the site in which the mortal combat between the violence of the colonial powers and ruling class and the violence in defence by the subjugated plays out. Transitional violence is caused mostly by an absence of justice. This absence characterizes the very nature of transition, which is full of compromises, marked by the domination 4

On this, see Paula Banerjee, ‘Aliens in a Colonial World’, in Refugees and the State: Practices of Asylum and Care in India, 1947–2003, ed. R. Samaddar (New Delhi: Sage, 2003), 69–105.

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of ruling classes and forces, based on their right to property, and thus shapes the very form decolonization assumes during and in the aftermath of independence. If so, where do we place the principle of responsibility in the overall architecture of transition? We evaluate people and groups as responsible or not for the ensuing violence depending on how they exercise their power. Furthermore, how do we relate moral responsibility and legal responsibility – not only of individuals, but of empires, global powers, and other collectives? For instance, the refugee protection regime has no particular hold on (a) what we may term as ‘responsible agency’, whereby an institution like the state could be regarded as a moral agent; (b) ‘retrospective responsibility’, when a state is to be judged for its actions and is blamed or punished for its past deeds; or (c) ‘responsibility as a virtue’, when we praise a state as being responsible and taking care of the needs of a population. In the context of postcolonial experiences of ‘transitional violence’, a wider view of responsibility is needed in order to explore connections between moral and legal responsibilities and between global and national responsibilities. As Kant wrote in Religion within the Limits of Reason Alone (1793), Yet an end does arise out of morality; for how the question, what is to result from this right conduct of ours, is to be answered, and towards what, as an end – even granted it may not be wholly subject to our control – we might direct our actions and abstentions so as at least to be in harmony with that end: these cannot possibly be matters of indifference to reason.5

security, insecurity, and the migrant The aforementioned communal riots of 1946–47, which became almost a civil war between two religious communities (namely Hindus and Muslims) and led to unprecedented displacements and refugee flows for more than a decade, raise the question of security writ large during transition. In a sense, postPartition displacements continued, and riots became a regular feature of independent India. One community wanted security from the ‘invasion’ of another community. The federal state, in turn, wanted security from the aggressive postures and policies of the neighbouring ‘hostile’ states. The settlers wanted security from the ‘natives’, while the natives wanted protection 5

Immanuel Kant, Religion within the Limits of Reason Alone, trans. Theodore M. Greene and Hoyt H. Hudson, Marxists.org, accessed 17 June 2017, www.marxists.org/reference/subject/et hics/kant/religion/religion-within-reason.htm. We may also re-read, for instance, Kant’s ideas of moral responsibility forming the human being. To Kant, for constituting personhood assuming responsibility was critically important.

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of their spaces from the ‘invading’ settlers. In short, security of the new nation meant micro-insecurities of the people. Indian citizenship laws and measures for refugee protection began to be framed against this background. The Constitutional Assembly debates leading to the provisions of the Constitution, along with the Foreigners Act and the Citizenship Act, were framed in a milieu of pervasive insecurity. These micro-insecurities provided the building blocks of macro-security – the security of the nation and the state. When we speak of the overall security of the nation, we are first of all recognizing the need for and the practice of a juridical structure of security that acknowledges the special claims for damage resulting from insecurity and reconciles in its structure the differential claims for security. In the case of India, the Constitution recognized the presence and certain rights of the indigenous people, made room for specific provisions for those rights, provided for special security arrangements in areas such as the north-east, tried to settle the international borders and boundaries as much as possible, did away with old hierarchies in terms of politicaladministrative units of the Union, and made all units of administrative governance equal as states. Yet, as the preceding history of violence indicates, this overall security also reinforced molecular insecurities. The Indian state of Assam is the most telling case, where international boundary, interstate boundaries, and internal boundaries all have combined to make each fragment of the state of Assam insecure. In the north-east, no one can provide security at the grass-roots level – the rebels, the army, the ethnic home guards, and civil society included. Thus far, more than sixty years later, reconciliation mechanisms and the multiple peace accords proved to be mere governmental exercises.6 The army and the paramilitary forces proved oppressive; and the international boundaries have become negotiating space for kin groups, political formations, the immigrant army of labour, and people fleeing from torture, threats of persecution, and fear. In this way, borders became borderlands.7 The overall security of the region is reinforced by the political economy of an enclave. Such a security framework cannot fully acknowledge the figure of the immigrant

6

7

See R. Samaddar, The Politics of Dialogue: Living under the Geopolitical Histories of War and Peace (Aldershot: Ashgate, 2004), chapter 6, ‘Governing through Peace Accords’, 159–96; also, R. Samaddar, ‘Government of Peace’, in Government of Peace: Social Governance, Security, and the Problematic of Peace, ed. R. Samaddar (Surrey, Farnham: Ashgate, 2015), 19–56. Willem van Schendel describes the process in his Bengal Borderlands: Beyond State and Nation in South Asia (London: Anthem Press, 2004).

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or the non-citizen, except in the sense of denying or ousting them from the political universe.8 However, the situation is double-pronged. Resources and development will call for migrant labour. Meanwhile, development will encourage the indigenous or native communities to drive ‘the aliens’ out, so as not to share the fruits of the economy. Thus, unable to delink development and the influx of migrant labour, and equally unable to ‘cleanse the nation of aliens’, the only way for the indigene to ensure security is to claim the region as their homeland. Yet there is a serpent in the garden. This path of overall security is also the path to other forms of insecurity, as the demand for homeland and other ethnically exclusive futures invites further violence. Bodoland in Assam is a case in point. Repeated demands for a ‘homeland’ have meant frequent attempts at ethnic cleansing of Santhals and Muslims or Nepalis. It will not be out of place to recall that even though the British brought the Nepalis in order to extend the northeastern frontier, garrison the occupied territory, reclaim land, and thus increase revenue, and of course maintain a loyal population amidst a hostile environment, matters took a different turn when the British left. Assam Rifles changed its recruitment policy, but the uneasy transition from uniform to mufti has had its own consequences. A large proportion of the settled Nepali population has remained poor and deprived of representational rights. In this condition, democracy is being invoked on both sides – Nepalis as Indians demand their right to life, livelihood, and security; natives or the indigenous demand the right to their homeland. Elections are played out year after year and charters, memoranda, parleys, negotiations, and mobilizations mark the scene. Today, in the context of widespread anti-immigration politics in the entire region – a context where, even more than the Nepali, the Muslim is the most ubiquitous immigrant – when we speak of the survival of racism, we must not look for its existence outside democratic politics. Precisely, it is the democratic form that reinvents and recirculates racist differences as deeply inscribed forms into everyday politics. It is for all these reasons that the figure of the immigrant appears as one of the biggest interrogators of democratic politics. As the initial anti-foreigner agitation in Assam showed, civil society was willing to be instrumental in producing the conjugality of the nation form and the homeland form. In addition, subsequent politics in Assam also made it clear that it

8

As we indicate here that the migrant symbolizes transitional violence and injustice, the question is: What does the figure of the migrant signify in different ages and systems? Thomas Nail attempts a philosophical-historical explanation in The Figure of the Migrant (Stanford, CA: Stanford University Press, 2015).

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was the future of the political society that was at stake, and the discourse(s) of civil society was but one of the various dimensions of security being played out as part of contentious politics. Security is the link – the copula – that effects and legitimizes the coexistence of the nation form and the form of homeland. The homeland becomes the site of repeated riots against ‘immigrants and foreigners’ in the name of security. In the last few years, particularly in 2012 and 2014, Bodoland had repeated riots against Santhals and Muslims. In July 2012, violence in Bodoland broke out with clashes between indigenous Bodos and Bengali-speaking Muslims. The death toll was 77, and over 400,000 people took shelter in 270 relief camps after being displaced from almost 400 villages. The Bodoland Member of Parliament, Sansuma Khuggur Biswamathary, blamed illegal immigration for the violence in the state. In July–August of the same year, protests were held all over Assam, demanding expeditious detection and deportation of illegal infiltrators from Assam, and in September the same year various organizations representing the Bodos, Dimasas, Karbis, Garos, Rabhas, Sonowals, and other indigenous communities formed a forum and declared that illegal immigration was a threat to the existence and right to land and resources of indigenous people of the entire state, and was not limited to Bodoland alone. In 2014, riots flared up again. This time an estimated thirty-two people died in the attacks against Muslims.9 The link of such riots to electoral politics was made clear in a report on the Bodoland riots of 2014: The All Bodoland Minority Students’ Union (ABMSU) held Bodoland People’s Front (BPF), which runs the Bodoland Territorial Council, responsible for the bloodbath. ‘We suspect the hand of BPF because the attacks were perpetrated a day after BPF leader Pramila Rani Brahma’s assertion that the party candidate might lose as he didn’t get the votes of Muslims in the parliamentary election for the Kokrajhar seat’, said Lafikul Islam Ahmed, a leader of ABMSU. But the Bodoland People’s Progressive Front believed that the attacks were the result of a ‘political conspiracy’. Non-Bodos constitute over 70% of the voters in the Kokrajhar seat. A conglomerate of 22 influential non-Bodo organisations had backed a former Ulfa leader, who contested as an independent. ‘It could be

9

‘Assam Violence Continues for Fifth day, Toll now 44’, First Post, 27 July 2012, www.firstpost .com/india/assam-violence-continues-for-fifth-day-toll-now-44–393004.html; ‘Extinction Fear Haunts Indigenous Assamese’, The Pioneer, 17 September 2012, 6; Betwa Sharma, ‘In Assam Grim Aftermath to July Riots’, The New York Times, 2 August 2012, https://india.blogs.nytimes .com/2012/08/02/in-assam-grim-aftermath-to-july-riots/?_r=0; Prasanta Mazumdar, ‘Death Toll up to 32 in Assam’, DNA, 3 May 2014, www.dnaindia.com/india/report-death-toll-up-to-32-inassam-1984510.

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a conspiracy of the state government. It was perhaps done to divert the attention of people from the growing dissidence among Congress legislators. It happened in 2012 when Gogoi was faced with rebellion from within’, said BPPF leader Rabiram Narzary.10

The homeland is thus like ground zero, where Constitution has stopped bearing relevance, only pragmatism rules, and daily negotiations are the order of the day. It is a hard case, harder than all juridical security arrangements, harder than constitutional provisions; it is a terra incognita in legal terms. In fact, history calls law into question here. In different parts of the world, nations are trying to readjust their border security regimes in the wake of two important developments – free trade agreements and the events of 9/11. One effect has been the attempt to secure neighbouring countries’ consent in tightening borders, while rendering border management flexible in such a way that immigrant labour can only come through in a legally sanctioned manner. In this regime of ‘flexible security’, immigrant labour is the hardest element to make fall in line with the desires of the state.11 Immigrant labour upsets the private property system in whatever form it may exist – communal property, national property, individual property, or a cartel’s property. While private property requires a citizenry based on universal suffrage, a system of representation that is participatory to a lesser or greater extent, a transactional mode of politics, and some sort of preferential arrangement in politics and (at times) the economy based on positive discrimination, immigration breaks this framework. It makes the contradiction between economics and politics acute and initiates conflict at the most fundamental levels of society, making liberal rule extremely difficult, as it continues to provoke collective claims, violence, and politics to an ungovernable extent. The response of the regime of private property is to make ‘security’ a theme of governmentality – a field of politics, negotiation, government, and rule. Independence was to make India a republic of freedom and guarantee equality of citizens. Yet Partition made India into a collection of heterogeneous population groups with different and, at times, clashing claims to land and power. Hence, governing the country became increasingly difficult. Refugees, illegal immigrants, shelter-seekers, asylum applicants, stateless groups, and the internally displaced became a part of the national populace 10 11

Mazumdar, ‘Death Toll up to 32 in Assam’. Read in this context Deborah Walter Meyers’ article on ‘smart’ border management by the United States: ‘Does “Smarter” Lead to Safer? An Assessment of the Border Accords with Canada and Mexico’, Insight (Washington, DC: Migration Policy Institute), no. 2 (June 2003); see also on this theme Christopher Rudolph, ‘Security and the Political Economy of International Migration’, American Political Science Review 97, no. 4 (2003): 603–20.

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aspiring to be citizens of the new nation, but who would perpetually remain in the shadow of the rights-bearing citizenry. Governing population groups calls for stabilizing them, and regulating and controlling their flows first and foremost. This is the context within which security emerges as an essential part of population management. The overarching sovereignty of the state calls for a centralized authority guarding the borders and frontiers, and maintaining police, army, administration, and laws to rule the population. The resultant disciplinary powers at all levels then lead to decisions concerning the friend/foe distinction, and make possible an economy of society, implementing rules and customs, and orienting mentalities. Finally, the governmental power, which regulates and controls population groups physically, completes the triangle of the security architecture, with its primary target being the population. Indeed, it is the concern for security that binds these three aspects, namely sovereignty, disciplinary powers, and governmental functions, and brings to bear on the people a fearsome force of classification, pacification, and domestication of identities. In India, transition from colonial rule to independence reshaped the task of governance according to the structure of this triangle. The government in the end stops the violence, while considerations of justice are sacrificed. In such a situation, how can we displace this discourse of security? Reorienting our ways and attitudes would mean finding out the fault lines in the architecture of security, understanding the complexities concerning the phenomena of population flows, and trying to discover the broad contours of the practices of negotiating with others in the midst of clashing political claims. In the context of South Asia, historical studies have shown how different population groups have created for themselves what can be called ‘borderland existence’, how borders have produced borderland peoples, and how the mainstream perception of an immigrant may not necessarily coincide with the perception of groups being called immigrants in these fluid contexts. These studies indeed suggest the emergence of new geographies of knowledge.12 Clearly, contemporary law, administrative practices, and mainstream economy are against such forms of borderland existence. Their flux is a threat to security, which is built upon the idea of stable population groups. 12

Foremost among such studies on South Asia are the inquiries led by Van Schendel, Bengal Borderlands; also see Van Schendel, ‘Working through Partition – Making a Living in the Bengal Borderlands’, International Review of Social History 46 (2000): 393–421; Md. Mahbubar Rahman and Willem Van Schendel, ‘“I am not a Refugee” – Rethinking Partition Migration’, Modern Asian Studies 37, no. 3 (2003): 551–84; Willem Van Schendel, ‘Stateless in South Asia – The Making of India-Bangladesh Enclaves’, The Journal of Asian Studies 61, no. 1 (2002): 115–47.

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By the same token, however, to inquire into those borderland existences means avoiding the stereotypes of binaries such as creditor and debtor, gratitude and resentment, killing and pity, respect and mercy. Instead, we could investigate long but obscure histories of ‘living together but separately’, and ‘trusting but not getting intimate’ with one’s neighbour, and venture to see what political history precedes today’s alternative notions of security that could avoid acute hostility and rupture.13 For instance, a political history of friendship between communities, of the way in which communities choose to welcome or reject the newcomers or decide who will be perceived as a stranger, would inform us about the moral standards that are in existence. That morality, which we can take to be an ensemble of normative choices, exists in three concentric domains. The center contains those judgements of right or wrong that people hold reasonably everywhere – thus, even with all the existing discriminations, a community may hold the judgement that it is wrong to kill or expel simply on the grounds of membership to a particular group. Beyond this are the judgements of right or wrong, or acceptance or rejection, made under specific social conditions, on the basis of values the members of a community share internally, and also as a matter of political choice. Thus, communities in the pursuit of national unity or land claims may accept killing and expulsion of others as a necessary condition. Judgements in the third domain, on the other hand, are based on the idea of what we owe to others. There is a plurality of values, some of which may support mutually incompatible standards of conduct. It is important to remember in the context of varying moral practices that a community may have internal cleavages, and what seems to be a community’s moral choice may simply be the choice of the powerful few within the group, accepted by the rest with persuasion or under duress. A history of these varying moral practices will throw light on the way security perceptions evolve, the way in which our ‘traditional’ security choices are made, and the significant ways moral practices influence such choices. More than a disagreement about right or wrong, and traditional and non-traditional, this is a matter of understanding the complex world of friendship and enmity at the communal level. Such historical studies also highlight the basis, or the 13

Example of such an inquiry can be found in the perceptive essay by Samir K. Das on the recent political history of a community of trying to live together but separately in the Northeast. See Samir K. Das, ‘In Search of a Community – The Immigrant Muslims of Contemporary Assam’, in Dimensions of Displaced People in Northeast India, ed. C.J. Thomas (New Delhi: Regency Publications, 2002), 347–63. However, while Das sees this history in terms of a community’s own practices, the inquiry needs to be framed in broader terms of finding out newer ways of making a plural political society, which his own historical material suggests.

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varying bases, on which reconciling of claims is achieved, and thereby communities live together. This may be based on moral grounds, ideas of friendship, practices of accommodation, accepting as ‘normal’ the borderland existences in societies and polities, and, finally, the rules of minimal justice.14 Not only are these varying moral worlds constituted by the views of the dominant forces within a community, but the question of resources, and thus the issue of private property, lies underneath these moral worlds. In postPartition India, and specifically in the Northeast of independent India, access to resources (land, timber, jobs, water, etc.) has always been the main bone of contention. Migrants do not create resource crises, but the specific pattern of resource extraction, utilization, and ownership pattern creates the circumstances of scarcity and moral panic, which then assumes its displaced form – the migration crisis.15 Let me summarize the arguments I made so far in relation to transition processes that produce victims of forced migration. Contradictions and conflict among people are real, and they display themselves in the form of contentious actions that are often marked by collective violence. The discourse of security is born out of this context and functions as the link between the two types of political framework that coexist: the nation form and the homeland form. The way in which these two types of politics are perched on the plank of security is also indicative of way in which borders and boundaries are reproduced. External borders and internal boundaries are linked in a sort of concentric circle which catches every aspect of the politics of the postcolonial nation. The figure of the migrant is critical, because immigration is linked to racism of one type or another, which can be described as ‘neo-racism’. Thereby, historical, economic, political, and other material differences become congealed in a cultural form to such an extent that they start appearing as irreducible physical differences which cannot be accommodated in one living space; and violence becomes the key attribute of this process of emergence of seemingly irreconcilable differences. Statehood and statelessness go hand in hand. Exactly for the same reasons, so do borders and borderless existence, as does the physical mobility of the migrant and the migrant’s political immobility. As I suggested, the discourse of overall (that is, macro-) security hence produces as its other ‘molecular insecurities’. If so, how could we build 14

15

R. Samaddar, ‘The Justice Seeking Subject’, in The Borders of Justice, ed. Etienne Balibar, Sandro Mezzadra, and R. Samaddar (Philadelphia: Temple University Press, 2012), 145–66. On the gendered nature of this resource extraction and resource crisis, see Paula Banerjee, ‘Circles of Insecurity’, in Migration and Circles of Insecurity, ed. R. Sammaddar and Paula Banerjee (New Delhi: Rupa & Co, 2010), 70–122.

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a model of ‘molecular security’ to counter this cyclical dynamic? The argument for minimal justice assumes meaning precisely in this specific context. Minimal justice accepts the idea of historical limits. The idea of minimal justice stresses the necessity and reality of a consensus on what is deemed just. It also enunciates the rules that govern the standard of justice based on rights and the quality of reconciling of claims. In this case, five principles would define minimal justice: (a) Recognition of past injustices toward immigrant communities; (b) Compensation of the victims of xenophobia (including next generations for aggregate harms and destruction of life and property); (c) Guaranteed supervision of accommodating arrangements; (d) Joint custodianship of common resources and introduction of legal guarantees so that common resources are not treated as private property of a given group; (e) Institution of mechanisms that improve a sense of polity and accommodate non-national existences within state borders. These rules do not deny the historical basis of conflicts, and yet they put the stress on the possibilities of reconciliation. The task of studying the way in which the idea of justice evolves, reconciling practices, and designing new solutions is a continuous endeavour, in fact a perpetual one. A relational view of politics suggests that if friendship among communities is not permanent, neither is enmity. What is important is not to lose sight of the new forms of politics that spring up from the dynamics of those relations – since these are in fact new ways of making our political societies.

victims of forced migration and transitional justice Here, I will shift the focus from India to another South Asian country, Nepal. After the civil war ended in Nepal in the last decade and the rebels became a party to the constitutional process, the return of internally displaced persons (IDPs) became an important issue in the mechanism of transitional justice.16

16

The number of IDPs in Nepal was variously put between 40,000 and 400,000 and the number of deaths at 12,865. One report said, ‘Conflict-induced displacement is a relatively new phenomenon in Nepal. This form of displacement started in 1996 when the internal armed conflict between the Nepal Communist Party (Maoist) and the Government of Nepal began. One estimate states that 12,865 people lost their lives in Nepal during these years due to the conflict between the Maoists and the government of Nepal. Moreover, reports from various organizations over the last few years have quoted IDP figures that range from approximately 37,000 all the way to 400,000 – and these figures exclude those who may have crossed the

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Much confusion remained for nearly a decade concerning the effective return, rehabilitation, and resettlement of IDPs, given the bitterness the civil war had left in its wake among people on opposite sides. In contradistinction, in India no such mechanism was set up. Nonetheless, as we have discussed, the rehabilitation and resettlement of the Partition refugees in two countries (India and Pakistan) was undertaken in massive proportions, despite not being guided by asylum laws. The task became an important part of post-colonial nation-building in both countries.17 This situation left a paradoxical legacy. On one hand, subsequent inflows of refugees and asylum-seekers had no firm legal precedent to rely on; on the other hand, the care and protection of Partition refugees – at both informal and formal levels – set a tradition or a benchmark guiding India’s accommodation policy. This does not mean that all groups were treated equally. Still, Tibetans, Sri Lankan Tamils, Chakmas, East Pakistani (Bangladeshi) asylum-seekers, and Burmese Indians returning to India all were allowed visitation and stay. Thus, the experiences of the first three decades after Independence became like a norm for the nation’s conduct on issues of care and protection of shelter-seekers. Yet, as said earlier, since the practices of the Indian state were issue-oriented, ad hoc, and pragmatic, the mechanism of transitional justice was left without any legal anchor. Courts remained to meet the legal requirements – at least partially. On this we shall have some observations before we end this chapter.

17

border into India. The Inter-Agency Internal Displacement Division (IDD) Mission to Nepal reported that the most reliable estimate of IDPs in Nepal who were internally displaced by the conflict should be upwards to 200,000.’ Nir Prasad Dahal, ‘Rethinking Nepal’s IDP Policy with Reference to UN Guiding Principles’, Refugee Watch Online, 31 March 2011, http://ref ugeewatchonline.blogspot.in/2011/03/rethinking-nepals-idp-policy-with.html. The figure of 200,000 was taken from another report: Anand Aditya, Bishnu Raj Upreti, and Poorna Kanta Adhikary, Countries in Conflict and Processing of Peace: Lessons for Nepal (Kathmandu: Friends for Peace, 2006); see also Voices of the Internally Displaced in South Asia, A Calcutta Research Group Report, 2006, www.mcrg.ac.in/Voices.pdf, section III, ‘Nepal’, 49–66. The Mohajirs in Pakistan remained an exception to the general trend of nationalization of the refugees. Because refugees were told that they were parts of the new nation, the Mohajirs (Urdu-speaking refugees from India) in Sind, Pakistan, resented the fact that they had been treated unfairly and unequally, and resources had been cornered by Sindhis and Panjabis. They resented the quota system, which facilitated Sindhis in gaining university slots and civil service jobs. The ethnic rivalry led to Mohajir political mobilization, which was further provoked by the stagnant economy and the condition of the Biharis living in the camps in Bangladesh. The Muttahida Qaumi Movement (MQM) was born in this way in 1984. The Mohajirs claimed that they were a nation. See A.R. Siddiqi, Partition and the Making of the Mohajir Mindset: A Narrative (Oxford: Oxford University Press, 2008); Nichola Khan, Mohajir Militancy in Pakistan: Violence and Transformation in the Karachi Conflict (London: Routledge, 2012).

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This paradoxical situation in fact calls for some discussion. To begin with, it should be clear from the above analysis that the post-colonial reality of justice in the wake of transition is far removed from the canons of transitional justice debates established by the liberal discourse of politics. The big question is not just protection in the form of right to a camp life, but ensuring justice for the victims of forced migration in the process of decolonization. Justice from this point of view would entail the right to move, right to education, right to pursue a vocation of choice, right to livelihood, and, above all, the right to dignity. After independence, India did not formulate, and still does not have, a national asylum policy. India also did not sign the 1961 Refugee Convention or the 1967 Protocol. The steps she took for relief, rehabilitation, and resettlement of Partition refugees were massive but specific for the Partition displaced. Later on, the steps taken for Tibetan refugees, Bangladesh war refugees, Sri Lankan Tamil refugees, Chakma refugees, persecuted minorities from Pakistan, and other refugee groups, such as the Somalis, Afghans, South Bhutanese, and Chins, were likewise specific. In several cases, the Supreme Court and concerned High Courts enjoined upon the government to pay heed to the principles of universal rights and global justice, as enshrined in Article 51 of the Indian Constitution (promotion of international peace and security, maintaining just and honourable relations between nations, fostering respect for international law and treaty obligations in the dealings of organized peoples with one another; and encouraging settlement of international disputes by arbitration), and the constitutional provisions of basic rights such as the right to life (for all – citizens and foreigners alike). Yet, if this looked like ensuring some amount of justice, discrimination went hand in hand. There was discrimination in the protection offered to refugees from West Pakistan and those from East Pakistan, between upper-caste Hindus and lower-caste Hindus, men and women, and Tibetan refugees and other refugees, such as the Sri Lankan Tamil or Chakma refugees, and, finally, between groups of internally displaced – say between those displaced due to violence and those displaced due to environmental disasters, or due to the developmental projects that marked the developmental journey of the independent nation-state. To speak a little more on differential protection offered to the victims of forced migration: refugees from Burma were welcomed as the Second World War ended, ignored in the 1970s to 1990s of the last century, and prevented or obstructed from entering India at yet another point as the new century began. Similarly, while some groups of refugees such as the Tibetans were almost allowed to be ‘Indianized’, other groups such as Sri Lankan refugees still spend

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long years in India in strictly watched camps. The logical structure of these contradictions and ambivalence in India’s asylum policy has been termed ‘strategic ambiguity’.18 In some cases, as after the birth of Bangladesh in 1971–72, refugees returned quickly by thousands, while after 1959 the Tibetan refugees stayed and the Indian state did not even attempt to persuade them to go back. In contrast, the state, according to some, wanted to forcibly repatriate the Chittagong Hill Tracts refugees in Tripura in the 1980s–1990s and the Sri Lankan refugees in Tamil Nadu from the mid-1980s. In the context of India’s non-accession to 1951 Convention (which would have not helped much in any case, because the Convention had no clue when it came to the particular conditions of Partition refugees), the state’s distinctions between visitation and residence became directionless. Thus, refugees who thought when they arrived in India in 1947 that they would go back, did not, and the state never told them to go back; similarly, the Tibetan refugees were not told to go back, and they were not repatriated. On the other hand, thousands of refugees from East Pakistan went back as soon as the war of 1971 was over. Some Chakma refugees flowing into India stayed, some went back, and some had to be induced to go back. In some cases, the state allowed the refugees to come in and then inexplicably shut the door on them. The enigma is therefore not so much in India’s non-accession to the Convention, but in the way the state defines and configures its responsibility. However, such differential treatment of refugees and asylum-seekers is not the full history of the hospitality of the Indian state. Many writers have chronicled how refugee care in post-Partition Punjab and Bengal became part of building the new India. One chronicler commented, ‘The history of relief and rehabilitation in the east is one of gradual emplacement within a national body of those who were the victims of one of the world’s worst population displacements. The travails and trauma that accompanied their emplacement are only reflective of our fledgling nationhood.’19 A chronicler of relief and rehabilitation in the West wrote in a similar vein, ‘It was the characterisation of the refugee as a critical component of nation-building that marked a significant shift in conceptualisation and, consequently, in policy formulation. Linking resettlement with development, and rehabilitation with reconstruction, was a uniquely progressive and far-sighted response to a problem of crushing proportions; in this scheme of things refugees became 18

19

B.S. Chimni, ‘Status of Refugees in India: Strategic Ambiguity’, in Refugees and the State: Practices of Asylum and Care in India, 1947–2003, ed. R. Samaddar (New Delhi: Sage, 2003), 443–71. S.K. Das, ‘State Response to the Refugee Crisis: Relief and Rehabilitation in the East’, in Samaddar, Refugees and the State, 147.

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a valuable human resource rather than, only, an onerous liability.’20 In contrast, Joya Chatterjee shows that it was a time marked by the two contending notions of right and charity,21 but there is a fundamental agreement among all actors in that contentious scenario suggesting that we/they are part of the nation, the nation must accept us/them. In this dual context of nationalism and democracy, there is not only a re-emphasis on ‘Partition refugees’ as elements of nation-building, but also a reinforcement of the state’s duty to care and its imperative to mobilize all its powers to that end – indeed, to justify its status as the repository of power, the state had to rearticulate its obligation to care. The birth of social security was made possible by detailed governmental policies and techniques for sheltering the refugee population, the expanding universe of the nation, and the daily contest between the state and the refugee population that became another segment of the population being governed.22 Refugee flows to India in time became massive and mixed. Possibly it had always been so. The reasons cannot be said to be purely political or purely economic. It also cannot be that these population flows are connected only to human trafficking. The protection strategy has correspondingly become, on the one hand, complicated, ad hoc, and case specific and, on the other hand, security-centric to a great extent. As a consequence, the security discourse today clouds considerations of justice. Thus, even though the foundational history of care in independent India involves countless shelter-seekers, today the two discourses have come to be linked – the issue of illegal immigrants and that of refugees. Both influence, predicate, and prejudice the other.23 The migrant, however, refuses to be trapped in the security discourse. As a figure of 20

21

22

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R. Menon, ‘Birth of Social Security Commitments: What Happened in the West’, in Samaddar, Refugees and the State, 186 (emphasis added); on the complex process of forging a new identity among refugees in the western part of India, see Ravinder Kaur, Since 1947: Partition Narratives among Punjabi Migrants of Delhi (New Delhi: Oxford University Press, 2007). J. Chatterjee, ‘Rights or Charity? Government and Refugees: The Debate over Relief and Rehabilitation in West Bengal, 1947–1950’, in Partitions of Memory, ed. S. Kaul (Delhi: Permanent Black, 2001), 74–110. The lasting significance of the Indian experiences of hosting and finally accommodating the Partition refugees is embedded in the critical question of legitimacy: thus, why is the Indian state legitimate? Because it accommodates the shelter-seekers? Then, how long can India accommodate them? Again, India has a duty to kindred states and other poor states. But this does not mean that that the protection policy has not changed over the years. The strategic ambiguity this chapter refers to evolved from the times of Partition in 1947 and the following decade, and remains, notwithstanding particular differences. For a reliable summary of the refugee flows in South Asia and the state response, see Pia Oberoi, Exile and Belonging: Refugees and State Policy in South Asia (New Delhi: Oxford University Press, 2006). The Indian story greatly resembles the refugee-hosting experiences and practices of other South Asian countries, such as Bangladesh hosting the Rohingyas,

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autonomy (even though it is relative), the migrant negotiates both the internal boundaries and national borders, as well as the various borderlands and labour markets, the latter created and recreated by global capitalism. Meanwhile, issues of rights and citizenship will not fade away. It seems that the transition to citizenship will never happen. Perhaps it is in that continuous struggle for life, minimal justice, and dignity that transitional justice will find its meaning in post-colonial contexts. In India, in the dynamics of minimal justice, the courts have played an important role. In the absence of any particular laws on refugees and a welldefined refugee policy, the courts have helped policies on refugee protection take their final shape. In turn, this has helped in defining and at times widening the definition of the term ‘refugee’ and its scope; putting in practice the concept of non-refoulement (the principle of no forcible return) and its scope; and urging the administrative-judicial machinery to determine the status of a shelter-seeker as a refugee and, once determined, the nature of assistance the shelter-seeker may need and receive. Indeed, the Gujarat High Court summarized the position in the context of India being a non-signatory to the 1951 Convention in the following terms: (a) The relevant international treaties and convention are not binding, but the government is obliged to respect them; (b) Article 21 of the Constitution is enjoyed by a non-citizen on Indian soil, implying the principle of non-refoulement, but this does not confer on the non-citizen a right to reside and resettle, nor does it mean that if the stay of a non-national is contrary to national security, she or he can stay; (c) Where the international covenants and treaties reinforce the fundamental rights in India, as facets of those rights they can be enforced; (d) The power of the government to expel a foreigner is absolute; (e) The work of the UNHCR in certifying refugees is humanitarian, so the government has an obligation to ensure that refugees receive international protection until their problems are solved; (f) And, finally, in view of Article 51 that directs the state to respect international legal principles, the courts will apply those principles in domestic law in a harmonious manner, provided such obligations are not inconsistent with domestic law.24

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Nepal hosting the Tibetan refugees, and Pakistan hosting the Afghan refugees and earlier the Mohajirs. Similar to the Indian case, in these three cases also, care and protection were overwhelmingly informal, the dynamics of kin states operated, the states were not signatories to the Refugee Convention, and yet, by and large, refugees were not forcibly repatriated. For a broad and comparative study of South Asian experiences of care and protection, also see Omprakash Mishra, ed., Forced Migration in the South Asian Region: Displacement, Human Rights, and Conflict Resolution (New Delhi: Centre for Refugee Studies, Jadavpur University, Brookings Institution, and Manak Publications, 2004). Unreported, Kfaer Abbas Habib Al Qutaifi and Taer Ali Mansoon, Civil Rule No. 3433 of 1998.

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Here, let me provide some examples of how judicial reason has developed in post-colonial India. In a relatively recent court decision, five Burmese nationals detained for entering India without valid documents and charged under the Foreigners’ Act of 1946 (hereafter the FA) were granted bail by the Guwahati High Court so that they could apply for refugee status from the UNHCR in New Delhi. Their application was subsequently granted and the case was withdrawn by the prosecution.25 In another case, an Iraqi national detained for using a forged passport was authorized to stay in India, and the court ruled that since he had valid certification from the UNHCR with him, he could not be convicted for the offence. Considering that he was a Convention refugee, the court took a lenient view and sentenced him to pay just a fine.26 Similarly, a Sudanese woman who had come to India to escape further torture in Sudan, where she had been gang-raped for converting from Islam to Christianity, had been granted refugee status by the UNHCR. In this case too, although she had been charged under the FA, the court levied only a small fine and imprisonment of ten days already served.27 However, in another case concerning a Burmese national who had fled to India, been detained under the FA, and had not been able to approach the UNHCR, the court ordered conviction and rigorous imprisonment for six months and deportation back to Burma. The court also ruled that on completion of the sentence and in response to appeal, it was not within its jurisdiction to hand over the convicted to the UNHCR.28 Did these refugees have freedom of movement? A Sri Lankan who had been granted refugee status and was staying in Chennai was arrested in Delhi for being unable to produce a valid travel document, and was detained under the FA. The court observed that refugee status did not entitle a person to move about freely, found him guilty, and sentenced him to six months of rigorous imprisonment.29 And what about refugees who forged passports or travel documents to take shelter in the country? Almost uniformly, the courts held that such acts constituted offence under the FA, though they sentenced them somewhat lightly, and wherever the government had pleaded a foreigner’s stay a threat to security, it ordered expulsion/deportation, or said that further stay depended on government permission.30 25 26 27 28

29 30

Unreported, State v Khy-Htoonand 4 others, FIR No 18 (3) 89, CJM, Manipur, 1994. State v Muhammad Riza Ali, FIR No 414/93, CMM New Delhi, 1995. Unreported, State v Eva Massur Ahmed, FIR No 278/95, MM—New Delhi 1995. Unreported, State v Benjamin Zang Nang, GR case no 1253 (1994), ACJM, Sealdah, West Bengal, 1996. Unreported, State v Hudson Vilvaraj, FIR No 583/97, MM, Delhi, 1998. Unreported, State v Muhammad Yashin, FIR No 289/97, SMM, Delhi, 1997.

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Then, there was a strange case of perfect ambiguity. A woman, arrested on the grounds that she was a Burmese national and had violated the FA, produced her birth certificate, residence certificate, employment certificate, and a copy of the electoral roll that listed her as a voter. The court ordered her free on the grounds of this evidence, but it wondered why, although she claimed to be a permanent resident of Mizoram, she could not speak the Mizo language, and found it strange that she had an original birth certificate, and had been allotted permanent residence in Mizoram, particularly when the issue of foreigners was a contested issue in that state.31 As such, Indian juridical reasoning has assumed that the burden of protecting an asylum seeker lies with the UNHCR. This includes the burden of resettlement, and the conditionality that the detained foreigner would not be able to move to another place of choice without certification and assumption of responsibility by the UNHCR. In such reasoning, the court has held that, as much as circumstances allow, the state should show leniency to offenders who had violated the FA. It also recognized that not only persecution of a particular person, but a general atmosphere of violence and insecurity, could be grounds for asking for shelter, while simultaneously endorsing that if the state claims that state security is in jeopardy, expulsion or deportation must be the norm. The state may not be obliged to grant asylum, and the duty of hospitality may not be legally enforceable. Yet the court expects that the state will practise hospitality as much as possible, based on its own power to determine the period of visitation according to particular circumstances. The Supreme Court also concurred with the judicial practice of assigning the burden of protection to the UNHCR, and has ruled that the issue of ‘reasonable procedure’ in asking a non-national to leave the country arises only when there is UNHCR certification of the non-national as refugee, and not otherwise. Therefore, the court has not laid down any standard norm in sheltering or certifying a refugee. The UNHCR has exercised its mandate mainly with regard to 12,000 Afghan refugees and 1,000 refugees of other nationalities, while in some other cases it has been allowed to carry out relief and settlement work only. In yet other cases, the government has decided the fate of the shelter-seeker. Thus, concerning approximately 100,000 Tibetan refugees and 65,000 Sri Lankan refugees, the UNHCR does not have a direct role. The mandate refugees assisted by the UNHCR are Afghans, Burmese, and small numbers of Iranians, Sudanese, Iraqis, and others. Through the Foreigners Regional Registration Office, the government issues renewable residential permits to mandate refugees on the basis of certificates issued by the 31

Unreported, State v Sungenel, GR No 979/96, ADC/Judicial Officer, Aizwal, Mizoram, 1996.

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UNHCR. Yet cases before the courts continue involving refugees undergoing legal process for illegal entry. Visible and invisible frontiers have been created. The key feature of these nouvelles frontie`res is that they are being produced internally; they are not merely vertical lines separating two spaces, but concentric circles continuously dividing the citizens and aliens of the nation. Consequently, not the security explanation, or the kindness explanation, or even the international law and international regime explanation would be enough to make us understand the mysteries behind one of the most observed and least comprehended political phenomena of our time, namely the asylum and refugee care policy of a post-colonial state. One may argue that a rightsbased explanation may appear the best route, because the refugees of Partition viewed their own arrival in India as a matter of right – returning home, returning to the ‘natural nation’. Yet the situation was ambiguous (the nation was not so ‘natural’, and the departure, too, was from a ‘home’), and refugee protection did not evolve purely as a matter of refugee rights, as partition refugees were then followed by cohorts of others. It also evolved as an ethical, humanitarian task involving the principle of responsibility toward the subjects of the nation.

conclusion In the South Asian context, when we look back into how policies of care and protection of the victims of forced migration took shape, we can see the paradoxes of the notion of transitional justice. These paradoxes are particularly observable when we look at the major developments and societal implications pertaining to these policies. The first refugees to arrive in independent India were not aliens who needed shelter; they were part of the nation. Initial practices of refugee care and administration built up not so much through law as through rehabilitation and social security arrangements. In the absence of laws, judicial reasoning filled the vacuum of guidelines. Resultant institutions were the concrete results of these early practices of refugee care, administration, and regulations concerning Partition refugees. These also emanated from a tradition of hospitality, which the state could neither fully endorse nor reject. Partition refugees left a mark on the subsequent pattern of refugee reception, in which the Indian state was obligated to combine care with power. However, this amalgamation also became the mark of ambiguity in time. The contest between the notions of charity and rights began when refugees started pouring in. The situation also influenced the discourse of ‘hospitality’, a term that is supposed to overcome the contradiction. Current practices

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of refugee protection in decolonized India arose from a contest between the two notions. The foundations of the legal-administrative discourse on refugees and foreigners were at the centre of that strategic ambiguity. Who became alien, when, and declared by whom, was a widely’ circumstantial matter, often evading the purview of the law. These issues were at times clarified by the courts, but mainly on a case-by-case basis. Under such circumstances, alienhood became, despite the citizens constituting its political foundation. Offering shelter and protection became deeply circumstantial. Local communities oscillated between charity and fatigue, benign care, and ill feeling and animosity – the kind of mixed response that also characterized the conduct of the state. In the long run, however, keeping shelter-seekers in ghettos, proscribing their movement, and creating penal colonies began to underwrite the nature of aid the Indian state was providing. What began in the Andaman Islands and Dandakaranya (where many of the partition refugees were resettled in camp and camp-like conditions) continued throughout decades, while protecting and penalizing became interlinked. To conclude, how are we then to view the relation between transition, violence, and justice in the post-colonial context? Transition both creates and is fed by violence. Its necessity or the uniqueness of historical circumstances is not in question here. The point is to recognize that transition is incomplete unless the victims of violence receive justice. Unless justice is made the key element of transition, transition will remain incomplete, unjust, and biased. A counter strategy requires understanding and elucidating the norms of minimal justice. Such justice will be minimal because it will be dialogic. It will have the concrete historical limits and yet will have enough promise for moving ahead. That promise will make transition meaningful. And that is the substantive story of justice in the post-colonial condition.

references Aditya, Anand, Bishnu Raj Upreti, and Poorna Kanta Adhikary. Countries in Conflict and Processing of Peace: Lessons for Nepal. Kathmandu: Friends for Peace, 2006. Ahmed, Ishtiaq. The Punjab Bloodied, Partitioned and Cleansed: Unravelling the 1947 Tragedy through Secret British Reports and First-Person Accounts. Karachi: Oxford University Press, 2012. Banerjee, Paula. ‘Aliens in a Colonial World’. In Refugees and the State: Practices of Asylum and Care in India, 1947–2003, ed. R. Samaddar, 69–105. New Delhi: Sage, 2003.

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Banerjee, Paula. ‘Circles of Insecurity’. In Migration and Circles of Insecurity, ed. R. Sammaddar and Paula Banerjee, 70–122. New Delhi: Rupa & Co, 2010. Bharadwaj, Prasant, Asim Khwaja, and Atif Mian. ‘The Big March: Migratory Flows after the Partition of India’. Economic & Political Weekly 43, no. 45 (30 August 2008): 39–49. Brass, Paul R. ‘The Partition of India and Retributive Justice in the Punjab, 1946–47: Means, Methods, and Purposes’. Journal of Genocide Research 5, no. 1 (2003): 71–101. Chatterjee, J. ‘Rights or Charity? Government and Refugees: The Debate over Relief and Rehabilitation in West Bengal, 1947–1950’. In Partitions of Memory, ed. S. Kaul, 74–110. Delhi: Permanent Black, 2001. Chimni, B.S. ‘Status of Refugees in India: Strategic Ambiguity’. In Refugees and the State: Practices of Asylum and Care in India, 1947–2003, ed. R. Samaddar, 443–71. New Delhi: Sage, 2003. Dahal, Nir Prasad. ‘Rethinking Nepal’s IDP Policy with reference to UN Guiding Principles’. Refugee Watch Online, 31 March 2011, http://refu geewatchonline.blogspot.in/2011/03/rethinking-nepals-idp-policy-with .html. Das, Samir K. ‘In Search of a Community – The Immigrant Muslims of Contemporary Assam’. In Dimensions of Displaced People in Northeast India, ed. C.J. Thomas, 347–63. New Delhi: Regency Publications, 2002. Das, Samir K. ‘State Response to the Refugee Crisis: Relief and Rehabilitation in the East’. In Refugees and the State: Practices of Asylum and Care in India, 1947–2003, ed. R. Samaddar, 11–34. New Delhi: Sage, 2003. Kaur, Ravinder. Since 1947: Partition Narratives among Punjabi Migrants of Delhi. New Delhi: Oxford University Press, 2007. Khan, Nichola. Mohajir Militancy in Pakistan: Violence and Transformation in the Karachi Conflict. London: Routledge, 2012. Nail, Thomas. The Figure of the Migrant. Stanford, CA: Stanford University Press, 2015. Menon, R. ‘Birth of Social Security Commitments: What Happened in the West’. In Refugees and the State: Practices of Asylum and Care in India, 1947–2003, ed. R. Samaddar. New Delhi: Sage, 2003. Mishra, Omprakash, ed. Forced Migration in the South Asian Region: Displacement, Human Rights, and Conflict Resolution. New Delhi: Centre for Refugee Studies, Jadavpur University, Brookings Institution, and Manak Publications, 2004. Oberoi, Pia. Exile and Belonging: Refugees and State Policy in South Asia. New Delhi: Oxford University Press, 2006. Rahman, Md. Mahbubar and Willem Van Schendel. ‘“I am not a Refugee” – Rethinking Partition Migration’. Modern Asian Studies 37, no. 3 (2003): 551–84.

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Samaddar, Ranabir. The Politics of Dialogue: Living under the Geopolitical Histories of War and Peace. Aldershot: Ashgate, 2004. Samaddar, Ranabir. ‘The Justice-Seeking Subject’. In The Borders of Justice, ed. Etienne Balibar, Sandro Mezzadra and R. Samaddar, 145–66. Philadelphia: Temple University Press, 2012. Samaddar, Ranabir, ‘Government of Peace’. In Government of Peace: Social Governance, Security, and the Problematic of Peace, ed. R. Samaddar, 19–56. Surrey, Farnham: Ashgate, 2015. Siddiqi, A.R. Partition and the Making of the Mohajir Mindset: A Narrative. Oxford: Oxford University Press, 2008. Singh, Anita Inder. The Partition of India. Delhi: National Book Trust, 2006. Van Schendel, Willem. ‘Working through Partition – Making a Living in the Bengal Borderlands’. International Review of Social History 46 (2000): 393–421. Van Schendel, Willem. ‘Stateless in South Asia – The Making of IndiaBangladesh Enclaves’. The Journal of Asian Studies 61, no. 1 (2002): 115–47. Van Schendel, Willem. Bengal Borderlands: Beyond State and Nation in South Asia. London: Anthem Press, 2004. Voices of the Internally Displaced in South Asia, A Calcutta Research Group Report, 2006, www.mcrg.ac.in/Voices.pdf

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2 A Restorative Justice Approach to the “Armenian Problem” Transitional Justice between Past and Future Turgut Tarhanlı

The periods in which political and social life lead to great grievances are candidates to be either forgotten or perpetually remembered. When it comes to forgetting or remembering traumatic events and their victims, both endeavors are shaped by the search for a stable account. And yet, with reference to both individual and societal suffering, to seek ways of returning to the old and the closing of a dilemma of whether to remember or to forget is not always possible. Coping with this kind of pain in an individual sense and trying to survive it despite all that remains unresolved is probably a condition that falls more under the purview of the field of clinical psychology, which is beyond the scope of this chapter. Within the politics of justice, on the other hand, the aim is eliminating or reducing the effects of victimization; and this is the subject matter of the following pages.1 To start with, restitutio integrum may not be possible in all cases, although it may be desirable that the causes leading to the victimization be at least

1

On the issue of the politics of justice, see J. Rebecca Rowen, “We Don’t Believe in Transitional Justice: Peace and the Politics of Legal Ideas in Colombia,” Law & Social Inquiry 42, no. 3 (2016): 622–47; Kieran McEvoy, “Beyond Legalism: Towards a Thicker Understanding of Transitional Justice,” Journal of Law and Society 34, no. 4 (2007): 411–40; Ron Dudai, “Transitional Justice as Social Control: Political Transitions, Human Rights Norms and the Reclassification of the Past,” The British Journal of Sociology 69, no. 3 (2017): 691–711. McEvoy’s paper was originally given as the plenary address at the 2004 British Criminology Conference. He successfully criticizes the adherence to positivist understanding of law in the context of mass political violence and trauma as “legalism as seduction.” On the issue of victimization and justice, see Yvette Selim, “Examining Victims and Perpetrators in Post-Conflict Nepal,” International Review of Victimology 23, no. 3 (2017): 275–301; Julie Bernath, “The Politics of Difference in Transitional Justice: Genocide and the Construction of Victimhood at the Khmer Rouge Tribunal,” Journal of Intervention and Statebuilding 12, no. 3 (2018): 367–84; Rachel Killean, “Constructing Victimhood at the Khmer Rouge Tribunal,” International Review of Victimology 24, no. 3 (2018): 273–96.

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revealed.2 However, what I will try to emphasize here is not just human losses resulting from mass political violence and hence requiring address in the context of transitional justice. Furthermore, it may not be possible to return the status quo to its former state, even when there is compensation of material losses involved. For this reason, the acceptance of a legal (and political) assumption of genuine transformation or transition is necessary. The elimination of the expectation for filling the void caused by these losses is equally essential. In this chapter, I argue that this is the real beginning point of the project of transitional justice, though not in the form of “retributive justice” but rather “restorative justice.” Efforts to dispose of and compensate for a loss – a loss that occurs as a result of the breakdown of peaceful social and political relations in the society – are deemed to be among the basic public functions of the state apparatus. In the context of the politics of modern criminal justice, this means the punishment of a person who caused victimization. Although the causal link between the suffering of the accuser and the acts committed by the accused must be taken into consideration in the determination of the sanction for it to be admissible, the fundamental reason for the application of the sentence remains the violation of a law recognized by the society and sanctified by the state. In the face of a violation of a legally protected interest, the punishment of the person by the state means that the perpetrator and the state become equal parties sustaining a sense of accountability in the eyes of the society at large. The perpetrator, by virtue of an act that caused damages and led to the victimization of another member of the society, actually violated the laws of the state and the state is thus equipped with the power to extract a price for this transgression. And the victim or his/her relatives must assume that the victimization caused by the damages and the loss would be eliminated by a sanction against the perpetrator as a result of the process of questioning such actions through adjudication.3 Here, it is necessary to identify the starting point concerning the origins of this process, which is shaped by legal definitions and positions. In other words, in our law-defined relations, there is an action, an action that is incompatible with the law of the state and accepted norms of the society. Hence, in order to qualify this “violation” as a crime, there must be a stated transgression of 2

3

This is the legal doctrine stating that the right to rescission of a contract is lost if the contracting parties cannot be restored to their respective positions before the contract was entered into. In the context of transitional justice, it refers to the restitution to the original position. On the issue of the power of the law, see Robert Cover’s canonical work, “Nomos and Narrative,” Harvard Law Review 97 (1983–84): 4–68, and his “Violence and the Word,” Yale Law Journal 95 (1985): 1601–29.

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a defined or protected interest or a legal relationship defined by the law. In tandem, the resultant state of victimization is determined by the violation of a legal obligation or a legal sanction. However, this does not make the job of determining the appropriate punishment a simple matter. The damages suffered by the victim determine the limits of the effort to find a suitable sanction in legal terms. In the larger societal context, this relationship becomes all the more complicated. For instance, if the great sufferings of the past are related to grievances, the determination of the nature and legal status of these grievances becomes all the more questionable. A case in point is the loss and damages suffered by the Ottoman Armenian communities during the 1915 Armenian deportations. In the language of the law, the event is not recognized as a genocide due to the limitations imposed by the genocide convention.4 The grievances suffered by the communities in question thus lead to a debate that still needs to be addressed in the legal universe, but more from the lens of the politics of justice than formal international law. As is well known, the prevention and punishment of genocide as a crime in normative terms was declared possible with an international treaty on this subject adopted in 1948 after the establishment of the United Nations. The resultant Genocide Convention includes traces of the Holocaust and, of course, the war crimes of the Second World War committed by Germany and Japan in countries that were either active or passive parties in the war.5 Suffice to say that it was not easy or even possible to legally trace the Holocaust (or genocide in generic terms) during the cases tried before the International Military Tribunals, or even in trials such as the Nuremberg trials, where major war criminals of the Second World War were tried. Still, we should consider the question of what kinds of compensation were called for in response to the suffering of the victims of these crimes. Even during these trials, could the law be made to correspond to the realities on the ground? Is it possible to claim that such egregious states of victimization, which do not have a place in the law as it exists in domestic jurisprudence, do not actually have a true punitive function alone?6

4

5

6

On this critical issue of “definition,” see Richard G. Hovannisian, Remembrance and Denial: The Case of the Armenian Genocide (Detroit: Wayne State University Press, 1998); John Quegly, ed., The Genocide Convention: An International Law Analysis (London: Routledge, 2016). The text of the convention can be accessed at https://ihl-databases.icrc.org/ihl/INTRO/357? OpenDocument. This point has been aptly argued by Hannah Arendt in her discussion pertaining to the Eichmann trials. See Hannah Arendt, Eichmann in Jerusalem (New York: Viking Press, 1964).

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the case, its naming and beyond The “1915 Tragedy,” as it is known in modern Turkish legal and political discourse referring to the Ottoman Armenian pogroms and mass deaths – the focal case of this chapter – could be discussed in the context of crimes against humanity and civilization, even if it was not recognized as genocide at that time, or later from a strict legal point of view. Of course, this assertion alone may lead to a qualified objection. There is discussion of whether there is even willingness to reach such a consequence, a consequence of creating an (Armenian) victim, although the existence of a victim in terms of material facts is not necessarily the main concern of such objections. The choice of not naming Ottoman Armenians as “victims” in a legal sense may well be the basis of the collision of arguments and the dissenting opinions concerning different theses on the subject. According to contemporary Turkish law, for instance, this is a debate about the subjective aspects of the perpetrator’s narrative, which would normally be presented as an issue of credibility. This situation concerning the legal side of the deportations of Ottoman Armenians constitutes a conundrum. The politics of both forgetting and remembering could benefit surviving societies in their own way in the context of reimagining a future. Bernhard Schlink (2013) makes a similar argument as a way of deciding how to construct and harmonize the history of society, under the heading of “taking control of the past through law.”7 According to Schlink, the real success of the law is to put forward both the form and the method for making decisions concerning societal construction and harmonization of clashing interests. In other words, the specific contribution of the law to the past is to offer a legal format and procedures, which in turn are direct contributions to the political culture. While we are sailing the waters of the legal realm, we should also discuss how those people who have been affected by such atrocities – i.e., the victims – navigate these rough seas. In law, those whose movements, decisions, and actions are regulated are also the ones whose choices are attributed certain legal consequences. However, the categorical victim’s legal standing often remains dubious, especially during times of war, dissolution of states, and unmaking of empires. In this context, taking into account other similar cases, the Armenian disaster and catastrophe of 1915 and related massacres do not stand on their own. The events of September 6–7, 1955, and related pogroms of Istanbul Greeks, the 1978 Kahramanmaras¸ massacre of the Alevi minorities of Asia 7

See Bernhard Schlink, Guilt about the Past (Brisbane, Australia: University of Queensland Press, 2013).

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Minor, the inhumane executions and overall conditions of the Diyarbakır Military Prison during the military administration period of 1980s, the 1993 burning of the Madimak Hotel in Sivas (again involving Alevi minorities), the intervention of the special security forces in an operation dubbed “Hayata Do¨nu¨s¸” [return to life] to bring to an end the hunger strike of the prisoners in the last days of 2000, and the human losses caused by the military operation in Uludere/Roboski in the Turkish southeast in 2011 all fall under the same category, whereby the victims’ standing remains dubious in the eyes of the law. In other words, the losses and major victimization resulting from the actions, follow-ups, judgments, and executions associated with the actual military coups and interventions that took place over a period of more than fifty years in modern Turkish history have thus far been regarded in the same frame of refusal of remembrance as the Armenian catastrophe. For this form of human suffering, the judiciary alone could hardly be expected to find a solution. It is also important to keep in mind that a rights struggle in the judicial system may be taking place in the shadow of certain technical difficulties or even impossibilities that may manifest themselves in the process of seeking a right concerned with certain cases that have taken place in the past. The events listed above all qualify for this type of questionable status of victimhood in the Turkish legal context. Indeed, even if an effort is made to overcome a grievance, the possibility of those who need a remedy taking advantage of the law or some of the essential legal means to access justice may have been hindered, though not deliberately. For instance, this situation could arise due to the inadequacy of the associated penalty with such grievances, or the umbrella protections accorded to the state security forces and the army under emergency laws. In addition, the passage of time often works against the interests of the victims. Therefore, focusing on the solution of a real “problem” within the limits of the possibility of a trial is often a futile and, in some cases, even a “dangerous” exercise due to repercussions for the survivors. In a situation where a compensatory (or punitive) judicial policy is the dominant form of justice, the trial process is strongly contingent upon limitations of time and space as well as accepted standards of evidentiary threshold and burden of proof established by existing codes of criminal law. In the contexts just mentioned, an accusation against the allegedly defective party is ultimately an expression of belief concerning the background of such crimes. And yet, even as a consequence of the scope of accountability, victim status and victimization could remain problems. This is mainly related to too wide a range of responsibilities, the perceived discomfort by the society at large about such trials, and even the expression of repentance as a countermove against the apparent attitude of the denial of a criminal context. This problem

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becomes all the more intense in the event of calculations pertaining to cases of victimization in the past, where massive losses often result in massive disputes and dreaded compensation claims. As Nick Smith argues succinctly, the responsibility of “recognizing past crimes as an ethical interlocutor” leads to new debates rather than simply ending old ones”.8 Unlike the “equalizing justice” approach I mentioned in the opening section of this chapter, these alternative interpretations of what justice means vis-a`-vis historical crimes highlight the importance of considering and undertaking responsibilities that must be fulfilled toward people who were the victims of public authority but who may not have legal standing as victims. In such cases, another approach to justice, namely “restorative justice,” is more apt. In his 2002 monograph “World War I and the Armenian Question,” historian Stefanos Yerasimos proposed that the disagreements, or rather the turmoil, that are experienced today around the Armenian question can be defined in essence as a matters of historical-legal contradiction.9 I concur with Yerasimos that legal judgments are categorically different from historical and normative judgments. The main purpose of positive law is to consider events in a cause-and-effect relationship as close to reality as possible, and to leave value judgments to the society at large. In the Armenian case, law does use historical data, but only within a very limited scope, and only if there is a case to be considered. However, historiography does not rely solely on the concept of law, and it is not a subsidiary item of law. Thus, the first thing to do to end this confusion is to separate the system of historical thought from the system of available legal thought concerning the 1915 tragedy. The situation that Yerasimos regards as a contradiction in the context of the relationship between law and history also manifests itself with regard to the legal diagnosis of the problem at hand and, in particular, the punishment of the perpetrator(s). Efforts to grasp the nature of the victimization caused by a historical loss are similarly and ineffectively guided by the language of the law. As Yerasimos argued in another context, if people are regarded as parties 8

9

See Nick Smith, I Was Wrong: The Meanings of Apologies (Cambridge, UK: Cambridge University Press, 2008). Smith specifically argues that “A simple act of describing the victims of mass crimes one by one is to take a step to acknowledge their suffering and create an archive of the extent of the harm. If the victim is alive, these gestures will mean getting to know him as a moral partner rather than just an objectified statistic. Indicating the victim’s name distinguishes him from an anonymous body of sufferers . . . If our cruel history makes us insensitive to the suffering of others, the apologies will awaken the horrors of mass savagery inside us. If the victim is killed, commemorating his name will increase the chances of drawing his successors into a moral debate” (76). See Stefanos Yerasimos, Birinci Du¨nya Savas¸ı ve Ermeni Sorunu [World War I and the Armenian Question] (Ankara: Bilkent University Press, 2002).

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(in broad terms) to an event related to the victim and if the social groups they are a part of are then deemed responsible for violent events, the resultant responsibility must be defined in accordance with applicable legal definitions and not based on historical attributions. Here, the main issue concerns the qualification of such acts as crimes in light of existing legislation. Ergo, the definition of the role and position of the people concerned, the diagnosis of the crime, and the arrival at a decision or judgment should all be legally codified rather than only historically signified. In a sense, these positions, relations, and actions could be read as the intervention of the state (and law) into history as the main determinant of these events, and could be regarded as the state’s violation of its own law in the past. Thus, the legal judgments mentioned by Yerasimos are also a form of remembering and, of course, forgetting. However, they are far from being mere historical or normative judgments. I believe that reality could indeed be grasped and analyzed anew in the evaluation of such events in a legal causeand-effect relation. Such is the way of approaching victimization from the point of view of restorative justice. Furthermore, both the meaning and the conclusion of the process of communication as embodied by the judgment/ accountability duo lead us to reconsider the relationship between the offender who violates the state’s law and the state whose law is being violated. However, the reality of the case of victimization under investigation far exceeds the pertinent legal definition, due to the fact that the victim has an effective role and position in this process and he/she does not suffer silently. This added dimension concerning historical crimes could be described as the confrontation aspect. For the victim, this process does not connote passivity. The perpetrator cannot remain in a legally fixed position, but the truth pertaining to their actions is guided by the discovery of the full extent of the victimization they have caused, and therefore they are forced to consider means of actual repair. In short, it is important that the state engages with a relationshipbuilding process in which the victim’s own voice can be heard directly in the recounting of the crimes, instead of their expression in front of the victim by the state and its representatives alone. While trying to achieve this end, the victims are trying to remember the events related to the actions causing their grievances. The purpose here is not to forget these actions or their perpetrators. Rather, by virtue of punishing the acts in question, the loss suffered by the victim in this respect is to be eliminated. The victim is a person and the victim’s relationship to the criminal acts under observation actually took place between the victim and the perpetrator, not the state and the victim. However, it is no doubt an uphill battle to offer opportunities that value mutual restorative justice measures and to

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substantiate care for rational communication. Restorative justice emphasizes that the perpetrator–victim relationship (which is directly associated with victimization) is actually a matter related to the destruction of the entire fabric of social relations. Therefore, the main issue with regard to restorative justice efforts is not to determine the rightful–unjust, criminal–innocent, imperfect– perfect, or perpetrator–victimized dualities through focused assessment or criminal interrogation. The value of the concept of restorative justice cannot be assessed in terms of an accounting process; it is important to understand and appreciate it within a broadened view of social and political relations and as a process rather than an end result. It has been revealed that such expectations generally apply to those who have had an experience in front of the court. Here, I will offer an illuminating contemporary example in detail. A field study completed during 2006–7 period (Adaletgo¨zet) under the mandate of the Human Rights Law Research Center at Istanbul Bilgi University revealed critical evaluations from citizens concerning the functioning of the judiciary.10 Face-to-face interviews conducted with 3,000 people led to the overall finding that, as a result of not being a party in front of the judicial system, ordinary people determinedly seek standing during their appeals. This quest goes above and beyond winning their case. In other words, it is not an “outcome justice” that is expected. Rather, the yearning is for the removal of an exclusion that covers the whole of the judicial experience, which can be called “process justice.”

process, relationality, and transitional justice in the context of the armenian question Process justice is indeed an important relationship that can be observed at every stage of judicial proceedings. Even though the judiciary aims at resolving a problem between the perpetrator and the victim as a third party, in debates concerning justice we tend to overlook the meaning and importance of the relations between the parties brought to the court in the first place. For instance, the language or attitude of “apology” is shaped by the context of a human communication process, which is very meaningful in the context of a restorative justice approach, although it has no criminal component. This emphasis on the process implies a “transition,” as it may involve the transformation of the society en masse from one state to another. In such a view, an apology extended within the larger framework of restorative justice may at first 10

See Seda Kalem, Adalet Go¨zet: Yargı Sistemi Uzerine bir Inceleme (Istanbul: Bilgi University Press, 2009).

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look “stylistic,” though in reality it fits Edward Said’s interpretation of “transitional form,” such as compositional variations on musical themes.11 In this sense, transitional justice is not a mixture of the two or more styles of justice in which a transition from one style to another emerges. It is a voice concerning or a silent expression of a loss, and a dilemma about the sustainability of a restorative communication process between the parties. I believe that “apologies” have a strong link with such a “transition” as a bond linking past and future. As a case in point, on December 7, 1970, Federal German Chancellor Willy Brandt, who was officially visiting Poland at the time, said that after he had laid a wreath in memory of the victims of the Warsaw Ghetto, he knelt and delivered a silent apology. He was standing in front of the victims of the war, and this was a strong message for the future Eastern Europe, in particular East Germany. It was also a gesture of peace as well as an apology, as it would mean countenancing the power and superiority of the Germany that was once lurking in the shadows of the past. With that very simple act, Willy Brandt immortalized the official apology as a restorative transitional form between the debris of the past and a hopeful future.12 Going back to the Armenian question in Turkey and the initial line drawn by Yerasimos between law and history, we must pay closer attention to the fact that we are witnessing the signs of a similar effort today in dealing with a debate that is neither of the past nor of the present entirely. The people living in Turkey today, in their relations with society and the state as it is seen today, are concerned with how to answer a question that is not asked about the present but about the past. At the same time, reconciliation seems to be a possible target, to be reached not only by recounting history but ‘also by application of’ pure positive law. The fact of being under the influence of history, above all, could lead to the rendition of certain past events by populations living in contemporary Turkey. On the other hand, the functional utility of law must be measured not by trying to define the past (or writing history), but by producing answers to be given in the context of today’s relations among the descendants of those involved in the atrocities, and in the light of a larger politics of justice. As a jurist, it is not easy to keep away from the style of legal evaluation. Law, in fact, aims to identify all relationships in society in terms of legal categories and legal definitions. While this is its core strength, it also constitutes its most

11

12

See Edward Said, Musical Elaborations (New York: Columbia University Press, 1991); and his Culture and Imperialism (New York: Vintage Books, 2012). For further debate, see Elazar Barkan and Alexander Karn, eds., Taking Wrongs Seriously: Apologies and Reconciliation (Palo Alto, CA: Stanford University Press, 2006).

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serious pitfall. First of all, it is the professional obligation of lawyers and jurists to know these definitions. In the legal realm, life and all of its intricacies are to be explained only through the lens of the law and in its specific language, which provides meaning to both politics and sociality via legal concepts and patterns. This could reach the unfortunate level of trying to frame every possible future meaning and to envelop our whole life before it even happened. The reason why I voice such concerns is the real problem we face regarding the distance between “legal reality” and the “extra-legal reality,” not just in everyday life but also in terms of our understanding of historical injustices. Even though the values and relations that allow for these two fields to overlap could be established, the existence of political and social factors that lead to the opposite cannot be neglected. In addition, the question of how the law (and especially international law) should be interpreted and applied against the time factor within the context of historical injustice requires particular attention. An evaluation of the general principles of law, which can only be achieved in the context of the particular period within which a legal system was in operation, is often circumvented. This type of legal assessment is of particular importance in terms of grievances, complaints, and, in general, violations of human rights. Serious systematic violation claims or cases of mass atrocities further aggravate this debate. In the context of debates about the past, however, we cannot overlook this added dimension. The logic of human rights thinking and the fundamental task of the human rights movement is that both individuals and human communities are effectively protected through the empowering mechanisms established against the possibility of violation of their rights not just by others but also by states themselves. However, certain difficulties arise if the interpretation of the cases before the acceptance of this general understanding is subjected to the same criteria established after the Second World War, and if the only style of interpretation preferred is that of legal positivism. With the Nuremberg trials being launched immediately after the Second World War and the United Nations’ enlargement efforts in the area of international criminal law, much progress has been made in determining the legal basis for the protection of civilians.13 However, for determining the scope and boundaries of political power of states and the resultant appreciation of the responsibility of states for the protection of their own citizens, the dominant discourse of the period was still heavily state-centric. These rules, which 13

On the legacy of Nuremberg trials for international criminal law, see Steven R. Ratner, Jason Abrams, and James Bischoff, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (Oxford: Oxford University Press, 2009).

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constitute the axis of contemporary international law, also constitute the infrastructure of human rights law and have a contradictory internal structure. Being aware of this struggle between states and the people governed by these very states is actually a matter of politics of justice. In the context of post– Second World War international law, the definition and construction of mechanisms for the protection of rights and the determination of individual rights and of human rights in general were the result of worries and negative anticipations in this regard. The claim that these rights can be maintained by states alone and only in their own legal order creates a favorable climate for the reasons that always give rise to hopelessness. It is for this reason that the catastrophes emanating from the Second World War made us realize how important it is to defend a more nuanced understanding of the legitimacy of the state. What I want to emphasize here is the difference between two different styles of politics concerning human rights. There is an emphasis on the goals of human rights discourse, which is evident in the politics of states, but also observable in the attitudes of nonstate actors. This discrepancy can be described as “official human rights policies” versus politics carried out for the protection of human rights. The meaning of the first of these does not necessarily concern the protection of human rights or sensitivity to this issue. What is important is to take advantage of this discourse to show the weakness of the opposing party in power relations or to work toward the establishment of such a conclusion. Although the subject is related to human rights, such a human rights policy is nothing more than the use of the human rights discourse as a foreign policy instrument in the form of intrinsic power relations. The second situation, however, can be explained as the kind of politics that is geared toward the realization of the recognition, protection, and development of human rights. To conclude, regarding the Armenian question, often we encounter politics that emphasize the discourse of “human rights” in the former style of these two different ways. In this regard, public debates in Turkey and other countries could be seen as valid attempts to create a nonlegal or nonlegal-positivist means of addressing loss, suffering, and pain that is to be defined in societal rather than strictly legal terms, and erring toward the rendition of politics of justice and politics of human rights.

the law and the armenian question In the context of the Armenian issue in Turkey, both in its local understanding and the discussions taking place in other countries (France and the United States in particular), the execution of both styles has become policy, as a tool for using the law to determine historical truths – or the opposite, using the law

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to avoid the discussion altogether as legally irrelevant. The dynamics in play are clearly visible if we use the lens of retributive justice. In the context of legal theory, and especially pertaining to criminal justice, the equilibrium approach to justice is based on the simplest statement: the satisfaction of the victim through an appreciation of the sanction imposed by the authority embedded in the legal system (punishment and execution), with the end result of the perpetrator compensating for the loss of the right to which the victim is entitled. Concerning the application of this approach in a historical or contemporary case, the parties of this debate are involved in a struggle determined by the law, both in terms of their positioning and of the form and method of the law as defined in the context of criminal justice. It should be noted that national or international judicial systems are generally organized according to this understanding of retributive criminal justice. The position and role of the claimant and the defense authority who are parties to a trial process are thus determined clearly, and the objectives in this framework are clear from the outset: the facts that require the responsibility of the offender (defense) and the legitimate countervailing to be appraised by the jurisdiction leading to punishment or sanctions in general. According to the tenets of compensatory justice, the victim strengthens his/ her position within this relationship to the extent that it reveals and proves the facts leading to the very victimization. These efforts are attained by proving that the perpetrator is responsible for this situation, and this determination alone is the ultimate standard of acceptance of the case by the judicial authority for a trial. The other side must then defend itself and try to prove that it does not fit into the position of the accused. The defendant also strives to strengthen his position against the other by laying down his/her own counterarguments in the form of refuting the existence of a relationship of causality in the first place. This effort is usually put forward in such a way that either the allegations of the other party are argued to have no relevance to reality, or some facts cannot be legally defined as claimed. Of course, the definitions, claims, arguments, evidence, and so on based on direct references to the relevant rules of law form the very boundaries of this relationship. This understanding of justice is established largely on the basis of positive law. It is thus inevitable that a discussion or interpretation of the rules of law (national and/or international) and its infringement thereof, the classification of the rules of law, and therefore the concentration on the extent of violation, violence, and victimization, will dominate the process of determining the truth. As a result, within the framework of equilibrium justice, the intent is realized by reaching a consensus as to what tools should actually be used to achieve the goal of “equalization,” even by forcing

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a third party (often a dispute resolution authority such as the United Nations) to participate. The desired end result is sometimes explained by a sanction that the perpetrator or the responsible person has to endure. In other instances the process is deemed to have been completed by the execution of the punishment and/or payment of the remuneration. On the other hand, considering the fact that all these efforts are part of a process in which the two sides are contending against each other, it is possible to reach the conclusion that the process itself does not conform to an axis of substantive justice. Furthermore’, the preference for achieving a judgment or a closure according to this approach easily leads to the elimination of key disagreements that hence remain unresolved. This, of course, is a situation that can assume different forms: for instance, sometimes the victim can be considered to have the preferred characteristics of the side often associated with the position of the offender. The initiation of such a process may also have been spearheaded by the competent public authorities through centralized judicial institutions and within the jurisdiction of a given state, without leaving room for the expression of the preferences of the actual parties. However, in the context of the equilibrium justice model, a different assessment than the one described above will not be the possible even if the venue or the jurisdictional framework was changed. If so, what would happen if we approach the same dispute or problem within the concept of restorative justice as opposed to the equilibrium model, despite the fact that the latter is held in the foreground by the legal establishment in general? This endeavor must be mutually agreed upon and not reliant solely on actual legal (or judicial) facts, presented as superior to other kinds of truths. If successful, in this new framework the victim and perpetrator, or others who support them by their position, are concerned with the objective of establishing facts that will become relevant in the dialogue within the context of their general social relations and a reimagined future.

conclusion: restorative justice is a must The Armenian question, referring to the tragic events with grave consequences across Ottoman Anatolia in the early part of the twentieth century, is not only related to different theories of justice. Such is its historicity and its emergence in a war environment coinciding with the silent moments of international law before the Second World War that there are certain marked difficulties in terms of its overall analysis and determination of the appropriate legal context. However, if only we could shift our priorities and the definition of the parties involved, and perhaps dare to disregard compensatory or

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equilibrium justice and privilege restorative justice, a new vista could emerge. Here, I do not mean to offer such an approach as a key to the ultimate solution or the missing piece of this ornate legal puzzle. At the same time, it is clear that the equilibrium approach to justice, which is focused on zero-sum solutions, is yet to produce tangible results. In closing, I will revisit the “balancing” and “restorative” approaches to justice and underline their differences. The key question is the following: Should the violation of the rule of law be taken into consideration first and foremost, or must the destruction of social relations take priority? First and foremost, the context within which the parties’ positions are determined must be analyzed. According to the equilibrium justice approach, there is a specific relationship between the parties involved, which is in line with an understanding of equality before the law as provided by procedural legal safeguards. The aim is to identify crime and punishment, or liability and expense. However, the ultimate goal of the restorative justice approach cannot be just that. It is not enough of an explanation to shirk responsibility for justice such that in the context of historical realities, cases such as the 1915 tragedy could be and often have been excluded from the existing legal domain. Often, such cases are subject to ongoing or historical disputes, and the problem cannot be easily defined as violations of the rule of law as defined by the status quo. In a broader sense, according to a nuanced understanding of restorative justice, it is generally the people and social relations that suffer the most damage in these types of historical conflicts. Furthermore, the parties are considered to be autonomous individuals (or legal persons) in a situation where they are defined as subjects of a compensatory justice approach or when justice is restrictively defined as the rule of law. The resultant relationship, which arises due to the alleged violation of the rule of law, would only lead to the loss of one (victim) and the gain of the other. Thus, presumably a new equilibrium would be established by the reestablishment of the legal order. In contrast, the concept of restorative justice presupposes the evaluation of individuals (or legal persons) as parties to that relationship in the context of a social relationship. In this case, the meaning of relative loss or gain will have to be redefined in terms of the very existence of that relationship or its negated nature thereof. In order for the concepts of law and violation/crime to be considered applicable in an equitable approach to justice, victimization is defined as a relation between the state and the offender; the victim is identified as only one person, and the victimization relationship is considered to take place only between the victim and the offender and is thus highly individualized. According to standard legal logic, the contradiction of the legal order and the resultant deterioration of public trust must be met with a sanction.

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Whatever the case may be, it is a fact that the offense in question is examined within the jurisdiction of state authority. Whether or not the state in which the violation has occurred follows the rules of international law, and whether it is bound only by the domestic legal order, the issues at hand are always related to a violation that is evaluated in light of domestic legal standards in the final instance. In other words, the existence or nonexistence of a state’s obligations arising from its sovereign law, whether or not the judiciary exercises authority on behalf of the state, determines the extent to which the state itself is construed as just. For this reason, the state and the perpetrator become parties to a sanction-based relationship. The state has to demand from the perpetrator the penalties for violating the legal rules that it has the power to ensure compliance with. However, according to the restorative justice model’ the issue of victimhood has to be kept on the frontline for seeking justice, and it has to do with the people or the society as a whole. The problem is the deterioration that occurs in relationships between victimizers and victimized people. Therefore, it remains an inadequate assessment if the issue is defined as the damaging of the legal relationship between the state and its others. The implementation of criminal measures against select groups of people due to their responsibilities leading to victimization does not change this equation. As such, the victimization relationship is primarily seen as the victimization of the whole society, although it is ultimately transformed into a perpetrator– victim relationship. This is quite different than the perpetrator–state relationship we find in the retributive justice model. To be precise, in restorative justice the solution of a dispute must be sought in relation to both parties. However, in the presence of conditions that are not conducive to qualifying the parties’ positions as “wrongdoers” or “victims,” the establishment and progression of relations between them requires the determination of categorical preliminaries. I think it is appropriate to evaluate this subject under the following headings: (1) Defect requires an accusation to be made against the faulty side, or defect requires identification of responsibility that is not necessarily defined according to the law. In this framework, the concept of equilibrium can only be determined if the relationship between the parties is defined according to positive law. Accordingly, the party that determines the perpetrator or responsibility, to the extent of this responsibility, is assumed to have interest in a balancing act, which in turn is to be achieved by the scope and weight of the law to be executed. However, this approach focuses entirely on perpetrators and

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punishment and does not directly relate to the person or persons who are victims. In order not to determine the victim’s victimization as abolition, and not to limit the justice relationship to one between the state and the perpetrator, punishing the responsible person for wrongdoing cannot remain the main objective. Instead, future prevention and protection of rights must become a priority. This design, which is the one purported by the restorative justice approach, requires the establishment of a relationship that will allow the parties to contribute to justice together rather than in an antagonistic setting. For this reason, the action allegedly required by the liability model demands that the same act, in terms of restorative justice, actively manifest not just responsibility and obligation for the perpetrator; there has to be an added component of compensatory justice in relation to the cause of the accusation. In particular, the way in which regrets arising from that action are expressively stated is of great importance. It may not even be necessary to define the resultant form of remediation in terms of responsibility and obligation in the legal sense. Rather, the ultimate aim is to keep communication between people open. Thus, according to the restorative justice approach – unlike the aforementioned equilibrium justice approach – protecting the interests of a victim is deemed less important than the furthering of the interests of the collective. (2) Focusing on solving the problem is a process that prioritizes communication between the parties, or focusing on the nature rather than the contents of the crime in a process where two adversaries are involved. According to the equilibrium justice model, the relationship between the perpetrator and the victim is defined only by a crime, and it is limited to an action that requires determination of liability and responsibility. This relationship is determined by resorting to positive law. In contradistinction, in the restorative justice model, the parties are to be considered in the context of general social relations, and the disagreement, problem, controversy, etc., is to be regarded as a mutual relationship. This can only be achieved by providing a platform for communication in this regard. This provision is not only a matter of strengthening the legal dictum and legal positions for the establishment of a judicial truth. It also creates an environment in which one is able to attend to the very reality of social relations. For this reason, instead of focusing on punishment in the form of a relationship between the two opposing sides, which is the main characteristic of the equilibrium justice approach, in the restorative justice approach the focus is on

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solving the problem through the establishment of a willing and effective communication scheme that can be realized together with the involvement of all parties. (3) There is a need for condemnation of an act of material and spiritual loss, in which the victim is in an effective position, and the perpetrator is responsible for the resolution of the offense, or, the end result of the offender’s condemnation. In the restorative justice approach, both the perpetrator and the victim are regarded as active and responsible parties throughout the process of the delivery of justice. In particular, the key proclamation of the compensatory justice approach is that although the offender (or the responsible person) may have acted in contravention of the legal order, and condemnation and accusation must be carefully avoided in order to reach the goals of the restorative justice process. Furthermore, the relationship between the parties should be focused not only on the victim but on the perpetrator as well. It is the act itself, and not the perpetrator per se, which must be condemned openly. (4) The result is a loss by one side, a conclusion of the other side’s losses as a gain, or a conclusion that allows both sides to improve their current status. The scenario presented here is based only on the legally admissible evidence and arguments. However, the question that needs to be answered here is about the significance, the effect, the weight, and the result of actions that caused damage, regardless of their legal definition. This latter approach requires that relationships among people be examined using methods other than those of the law. This should be a process with the participation of all parties in order to reach an understanding of opposite points of view and with the aim of clarifying, rather than calcifying, these different positions. Although the result of a compensatory justice approach often leads to the loss of one of the two sides to be the gain of the other, this is not at all preferred in a restorative justice approach. Rather, the aim is to achieve the recognition of the situation and, ultimately, rights of both parties. In the context of the Armenian question, I believe that we should not think about justice except with reference to the concept of restorative justice, which has unfortunately been the opposite of the attitude of the parties to this problem continuing up to now and dominant in the discourses of all sides involved in this debate. So far, the parties have only been concerned with the consequences of any attempt of reconciliation defined by the law and, ultimately, with its legal significance. In the eyes of both sides, the issue of how current and/or later legal rulings would provide support for a dispute-free

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interpretation in terms of their rightful position is defended as a priority. As a result, involved parties try to disclose a claim of equality solely on legal basis, or insist on the impossibility of it, again solely on limited legal grounds. And yet, as can be understood from the above examples, it is often inevitable that there be a “winner” and a “loser,” from the legal point of view, as a result of the processes of transitional justice. In this respect, we must be wary of a struggle between the axes of responsibility and victimization, and opt instead for a balancing approach. Each of the parties involved would want to interpret their positions that could be defined in this dichotomous way and in terms of their own priorities and immediate interests. In a nutshell, no party would want to be the “defeated” side of this struggle. Such an approach ultimately represents a striving for establishing a strategic relationship. If secured from a legal perspective, the communication of this relationship could then accommodate the individual positions of the involved parties, which in turn depends on common initiatives to overcome the impasse. If we try to understand this conundrum together with the method and language of the law, it could be argued that it is directly related to the reflection of social relations onto the law rather than itself being a product of the legal realm. On a final note, people with past stories of deep grief combined with present-day anguish perpetually live with their pain. This insight is very important in terms of social relations in today’s Turkey. As a society, we carry a responsibility to help the recognition of the very existence of the relationship between past grief and present anguish. This may be considered a factor that makes it easier to encounter the traumas of the long-gone past and to render this change of lens a priority. Such an approach to justice is not always relevant to the legal truth, nor is it necessary to find exact legal interpretations to fortify the principles of inter-temporal understanding. According to this approach, there is no need to struggle or to take a counterdefense based on legal reasons, either. All we need to do is to consider the unity of lived experiences through which opposing parties could develop a new understanding of both the past and the present together. For this end result, first and foremost, communication must remain open, and should not be confined to the legal realm alone.

references Arendt, Hannah. Eichmann in Jerusalem. New York: Viking Press, 1964. Barkan, Elazar and Alexander Karn, eds. Taking Wrongs Seriously: Apologies and Reconciliation. Palo Alto, CA: Stanford University Press, 2006.

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Bernath, Julie. “The Politics of Difference in Transitional Justice: Genocide and the Construction of Victimhood at the Khmer Rouge Tribunal.” Journal of Intervention and Statebuilding 12, no. 3 (2018): 367–84. Cover, Robert. “Nomos and Narrative.” Harvard Law Review 97 (1983–4): 4–68. Cover, Robert. “Violence and the Word.” Yale Law Journal 95 (1985): 1601–29. Dudai, Ron. “Transitional Justice as Social Control: Political Transitions, Human Rights Norms and the Reclassification of the Past.” The British Journal of Sociology 69, no. 3 (2017): 691–711. Hovannisian, Richard G. Remembrance and Denial: The Case of the Armenian Genocide. Detroit: Wayne State University Press, 1998. Kalem, Seda. Adalet Go¨zet: Yargı Sistemi Uzerine bir Inceleme. Istanbul: Bilgi University Press, 2009. Killean, Rachel. “Constructing Victimhood at the Khmer Rouge Tribunal.” International Review of Victimology 24, no. 3 (2018): 273–96. McEvoy, Kieran. “Beyond Legalism: Towards a Thicker Understanding of Transitional Justice.” Journal of Law and Society 34, no. 4 (2007): 411–40. Quegly, John, ed. The Genocide Convention: An International Law Analysis. London: Routledge, 2016. Ratner, Steven R., Jason Abrams, and James Bischoff. Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy. Oxford: Oxford University Press, 2009. Rowen, J. Rebecca. “We Don’t Believe in Transitional Justice: Peace and the Politics of Legal Ideas in Colombia,” Law & Social Inquiry 42, no. 3 (2016): 622–47. Said, Edward. Musical Elaborations. New York: Columbia University Press, 1991. Said, Edward. Culture and Imperialism. New York: Vintage Books, 2012. Schlink, Bernhard. Guilt about the Past. Brisbane, Australia: University of Queensland Press, 2013. Selim, Yvette. “Examining Victims and Perpetrators in Post-Conflict Nepal.” International Review of Victimology 23, no. 3 (2017): 275–301. Smith, Nick. I Was Wrong: The Meanings of Apologies. Cambridge, UK: Cambridge University Press, 2008. Yerasimos, Stefanos. Birinci Du¨nya Savas¸ı ve Ermeni Sorunu [World War I and the Armenian Question]. Ankara: Bilkent University Press, 2002.

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3 Hybrid Courts, Transitional Justice, and Displacement in the Global South Nergis Canefe

introduction Displacement, dispossession and civil war have always been handmaidens. Looking just at South and Southeast Asia, the Philippines and Sri Lanka, Myanmar and Pakistan, Afghanistan, India and neighboring Bangladesh, China, Tibet, and Turkic former Soviet Republics harbor millions of displaced peoples displaced in the last two decades alone.1 Similarly, between Iraq, Syria, Turkey, Egypt, Israel, Iran, Cyprus, and North African countries, Middle East is now home to more than 10 million displaced peoples, not able to leave the region and shuffled between different war zones. In Europe and Eurasia, at least 2.5 million people remain internally displaced. In the case of Bosnia, Serbia, and Kosovo, and Armenia, Azerbaijan, and Georgia in the South Caucasus, scores have been “displaced” for close to two decades now, and a whole new generation of children are born and raised while being dispossessed. Thus far, hardly any substantive connections have been made between the framework for state criminality defined by international criminal law and the accountability approach, and the exponentially increasing waves of forced migration and displacement. On the one hand, there is a universalized legal framework for the protection of displaced persons and victims of forced migration under the aegis of refugee law. On the other, there are both international and localized/ad hoc frameworks for justice and accountability in the context of state criminality and transitional justice measures. These exist, however, in almost absolute isolation from one another. This chapter highlights some of the possibilities emerging in the Global South to remedy this disjuncture, which affects the livelihoods and futures of millions of displaced and dispossessed people as a result of unaccounted-for state 1

See Roger Duthie, ed., Transitional Justice and Displacement (London: Social Science Research Council, 2012).

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criminality. In particular, it focuses on regional and hybrid legal and quasilegal mechanisms for addressing the gaps existing in both national and international legislation concerning forced migration and dispossession. The normative framework for transitional justice measures is supported and enforced by a number of institutional pillars. In addition to national judicial systems, these pillars include regional and subregional courts and commissions; judicial and quasi-judicial bodies of the United Nations system, such as treaty oversight bodies and ad hoc criminal tribunals; and the permanent International Criminal Court (ICC). These institutions have become increasingly active over the past two decades, as part of transitional justice programs for investigating and prosecuting those responsible for violations of human rights and humanitarian law in Bosnia, Rwanda, Sierra Leone, Timor-Leste, Cambodia, and many others.2 They also served an important role for acknowledging the victims of state criminality and providing redress for violations of their rights by acts both of state and nonstate actors. However, there still exists a lacuna concerning victims of forced migration and the direct address of their protracted situation due to their ambiguous legal status and change of residence. Transitional justice measures at the national level are considered to encompass the full range of processes and mechanisms associated with the attempt to come to terms with the legacies of mass political violence, to ensure accountability, and to serve justice for the victims. They consist of both judicial and nonjudicial approaches, including prosecutions, truth-commissions’, reparations programs, and reform of domestic justice and security sector institutions such as courts, law enforcement agencies, the military and security forces. The overall design and use of these measures are to contribute to the promotion and protection of the rights of persons affected in conflict and post-conflict contexts, including victims of displacement. However, in postthis special category of victims is rarely included in debates at the national or local levels during peace processes. By dealing with the past, transitional justice policies seek to provide a foundation for future peace. In contrast, responses to displacement primarily focus on the present context and immediate, primarily short-term protection of refugees, asylum-seekers, and other displaced populations. Forced migration is often initiated by egregious and mass human rights violations. And yet, the aforementioned frameworks and 2

See Naomi Roht-Arriaza and Javier Mariezcurrena, ed., Transitional Justice in the Twenty-First Century: Beyond Truth Versus Justice (Cambridge: Cambridge University Press, 2006); Huma Haider, “Transnational Transitional Justice and Reconciliation: The Participation of Conflict-Generated Diasporas in Addressing the Legacies of Mass Violence,” Journal of Refugee Studies 27 (2014): 207.

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measures they encompass continue to exist largely indifferent to the realities of displacement and disposession. To be forcibly displaced from one’s home and community and be unable to return lead to suffering a plethora of injustices on both immediate and longterm bases. Furthermore, persons who have been uprooted against their will, forced from their communities, and separated from their families as a result of conflict and violence are often victims of egregious crimes, including crimes against humanity. In addition to suffering from forced migration itself, displaced persons then become victims of new acts of violence and violations directly threatening their safety, security, and human dignity while on the move or living in limbo. Inhumane treatment, serious bodily harm and loss of life, severe psychological duress, deprivation of their means of livelihood and property, enforced disappearances, and arbitrary detention are some of the most common forms of violence that dispossessed communities face. Modern forms of enslavement such as human trafficking and bonded labor are all-toocommon elements of life on the move, as well. Women and children, who constitute the majority of displaced populations, are particularly at risk of gender-based violence and sexual enslavement. Overall, this is a dire picture that necessitates not only short-term and practical solutions, but also the address of long-term implications of forced migration and possible forms of restitution and compensation. In other words, “transition” to social peace and justice cannot be contemplated without dealing with past injustices and justice-related needs of displaced persons and groups. These needs may include the prosecution and punishment of those responsible for their suffering, which is all the more difficult in instances of state criminality. As such, justice would have to be redefined in ways that are much more comprehensive than criminal justice and retribution. Justice in displacement contexts has social, political, and restorative dimensions, as otherwise it would not be possible to establish’ civic trust and reconciliation for the displaced. Ideally, this is what constitutes the transitional justice and displacement nexus, which would then utilize the norms and institutions pertaining to both frameworks to empower the displaced, facilitate their access to justice, and assist them in rebuilding their lives in post-conflict settings. In reality, however, the picture is far from this ideal.

realities of transitional justice in the global south: the judicial route In international law, a particular set of legal mechanisms and courts has emerged since the 1990s that directly deal with transitional justice issues in

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the Global South. These are coined the “third generation of international criminal bodies,” and are commonly known as hybrid courts.3 The term was initially used to address three specific jurisdictions, all of which were created between 1999 and 2001: the Crimes Panels of the District Court of Dili, The “Regulation 64” Panels in the Courts of Kosovo, and the Court for Sierra Leone.4 In later years, the Extraordinary Chambers in the Courts of Cambodia5 and the Extraordinary African Union Chamber in the Court of Senegal were added to this list.6 Most of the earlier hybrid courts have closed their operations, and, hence, it is possible to ascertain the outcome of their work. In the following pages, I first argue that there is significant merit in examining the promise and potential benefits of hybrid tribunals and courts for the future of international criminal law in the Global South as an alternative to the dominant centrifugal model of universal jurisdiction concerning state criminality, in particular in relation to forced migration and

3

4

5

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The first-generation courts are the Nuremberg and Tokyo Tribunals, while the secondgeneration courts are the ICTY, ICTR, and ICC. See “Hybrid Courts,” Project on International Courts and Tribunals, accessed July 20, 2018, www.pict-pcti.org/courts/hybrid .html. Cesare Romano, Andre´ Nollkaemper, and Jann K. Kleffner, eds., Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo, and Cambodia (Oxford: Oxford University Press, 2004). The Extraordinary Chambers in the Courts of Cambodia (ECCC) were established in 2004 through an agreement between the United Nations (UN) and the Cambodian government, as a means to address the crimes committed during the Khmer Rouge regime in Cambodia between 1975 and 1979. The ECCC encompasses both national and international elements in its structure, composition, and jurisdiction. As with the other hybrid courts, it was expected to allow for a higher degree of participation by national actors and to be better placed to produce long-lasting effects. The value added by the participation by various national actors in the judicial proceedings is indeed the key feature of the ECCC, despite concerns raised about the judicial independence of the court. See Elizabeth Bruch, “Hybrid Courts: Examining Hybridity through a Post-Colonial Lens,” Boston University International Law Journal 28 (2010): 1. The Extraordinary African Chambers (EAC) were created by the African Union (AU) and Senegal in 2012, specifically to try former Chadian president Hisse`ne Habre´ and his officials for atrocities allegedly committed during his time in office between 1982 and 1990. Habre´ was accused of war crimes, crimes against humanity, and torture. Some 40,000 surviving victims were directly represented in court and ninety-two witnesses and experts have recounted his fierce repression. The Habre´ trial represents the first trial by an African state of a former head of state of another African state. As the first internationalized tribunal to have been established with the involvement of the AAU, the EAC will also provide valuable insight into what a regional approach to internationalized justice may look like. It is also important to note the consistency of the EAC Statute with the nullum crimen sine lege principle. See Sarah Williams, “The Extraordinary African Chambers in the Senegalise Courts: An African Solution to an African Problem?” Journal of International Criminology 15 (2013): 1139.

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state-induced dispossession. To this end, I identify the distinct features of hybrid courts, while acknowledging variations among them. The legal literature on the subject has already moved away from analyzing the generic promise of hybrid courts. Instead, current commentaries on the subject are keen to examine specific issues or areas falling under the purview of the jurisprudence and statutes of these legal and quasi-legal bodies. In a similar spirit, here I purport the promise of the mechanisms offered by hybrid courts to be an important tool to be used for accountability regimes in the Global South. However, I also posit that with reference to state-induced or state-condoned criminal acts in the context of transitional justice and forced migration nexus, they could at best be characterized as proto-institutions. Similar to preexisting international judicial bodies, such as the International Court of Justice or the European Court of Human Rights, hybrid courts are composed of independent judges, work on the basis of predetermined rules of procedure, and render binding decisions. They are subject to the same principles governing the work of other international judiciaries, including but not limited to due process, impartiality, and independence. Within this wider class of international courts, however, hybrid courts belong to a specific order. They are specialized criminal bodies with a limited mandate, and are prescribed to fulfill their function with reference to a predetermined time period. In other words, although their goal is to sanction serious violations of international law, and in particular international humanitarian law and human rights law, they are part of transnational justice regimes rather than being an ongoing feature of the legal systems in any of the given constituencies. Akin to the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), but unlike the ICC, they are ad hoc institutions, created as a result of singular political and historical circumstances, in order to carry out their mission hybrid courts need to rely on international jurisprudence and judicial assistance from other states and international organizations, although their peculiar legal status gives an utmost priority to the bridging act of creating hybrid jurisprudence that resonates with the national legal system. In some cases, they are part of the judiciary of a given country, while in others they have been grafted onto the local judicial system through the intermediary action of international bodies. One constant feature they exhibit is that their jurisdictional portfolio is mixed, incorporating international and national features.7 They

7

Etelle R. Higonnet, “Restructuring Hybrid Courts:Local Empowerment and National Criminal Justice Reform,” Arizona Journal of International and Comparative Law 23 (2005): 347.

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thus deliver a unique promise for states and societies in the Global South. The question is whether this distinct’ feature equips them with the means and the breadth to deal with forced displacement and related violations as well. As I mentioned earlier, the literature on international criminal law has already welcomed hybrid courts as a veritable type of institution, asserting that they provide the benefits, while avoiding the drawbacks, of purely international or purely domestic trials. Meanwhile, a closer examination of key examples of hybrid courts in Kosovo, East Timor, Sierra Leone, Cambodia, and Bosnia and Herzegovina reveals something else as well. Attributing a promise to hybrid courts as a fixed category has raised false expectations, as each court has fundamental differences in terms of their capabilities, and each possesses distinct features. On the other hand, this variation is also endemic to any genuine transitional justice project, and should be welcomed rather than shunned. In this regard, hybrid domesticinternational tribunals and courts offer an important new angle to institutional approaches to international law and to transitional justice, whose formulation is often semi-imposed by donor institutions in the Global North. The processes by which societies provide accountability and reconciliation for mass atrocity in their own terms are often overlooked. In contradistinction, hybrid courts are courts in which both the institution and the applicable law consist of a blend of international and domestic elements. Furthermore, these courts have developed in an ad hoc way, ‘as a result of on-the-ground innovation rather than grand institutional design, which carries the seed of a genuine political involvement from within. Typically, they have emerged in post-conflict situations to address cases involving mass atrocity, usually where no politically viable international tribunal exists, as in East Timor or Sierra Leone, or where an international tribunal exists but cannot cope with the sheer number of cases, as in Kosovo or Cambodia. They have often been marginalized as yet another failed project of the Global South. The truth is more complicated, and worthy of close attention, especially with reference to forced displacement and dispossession.

mapping responsibility for mass atrocities Theories of transgovernmental and transnational networks, when applied to cross-border regulation regimes in areas such as international finance, antitrust regulation, environmental protection, or securities law, have gained steady purchase among international law scholars. One area to which this

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type of theorization has not yet been fully applied, is international criminal law and, in particular, transitional justice measures and related jurisprudence.8 Until recently, international criminal law had not been conceptualized within the framework of transnational networks, which have caught our attention in other legal fields.9 With few exceptions, the predominant conception has been that international criminal law is enforced primarily through a universalized idiom and with a top-down approach. However, as critical debates in the area of human rights scholarship amply demonstrate, this picture is far from accurate. Human rights lawyers, activists, and advocates as well as investigators, prosecutors, and judges dealing with specific categories of crimes have long been acting in degrees of collaboration or consultation, with their peers across borders and with their counterparts at other national or international courts and regulatory bodies.10 In the following pages, some of these developments are evaluated with reference to hybrid courts dealing with cases of mass atrocities. Providing a conceptual framework within which transnational networks are not seen as an anomaly is essential in this regard. International human rights law, which in essence embodies a constant mediation between claims about the core values of justice and dignity, on the one hand, and hard-fought contingent politico-historical battles, on the other, is in particular need of a richer exchange between the North and the South. As carefully illustrated by Third World Approaches to International Law (TWAIL) scholarship, political geography has much to contribute to the critical study of international law, above and beyond connecting rights

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As an exception, see Jenia I. Turner, “Transnational Networks and International Criminal Justice,” Michigan Law Review 105 (2007): 985. The theory of transgovernmental networks Turner uses describes how government officials make law and policy on issues of global concern by coordinating across borders, but without legal or official sanction. Banking, antitrust, environmental protection, and securities law are sample areas in this regard. Ibid., 1020–25. For select recent debates on how international human rights law “works,” see Kurt Mills and David Jason Karp, eds., Human Rights Protection in Global Politics: Responsibilities of States and Non-State Actors (London: Palgrave Macmillan, 2015); Alexandra Huneeus, “Human Rights between Jurisprudence and Social Science,” Leiden Journal of International Law 28 (2015): 255; William Armaline, Davita S. Glasberg, and Bandana Purkayastha, eds., The Human Rights Enterprise: Political Sociology, State Power, and Social Movements (Hoboken, NJ: John Wiley & Sons, 2015); Courtney Hillebrecht, Domestic Politics and International Human Rights Tribunals: The Problem of Compliance (Cambridge: Cambridge University Press, 2014); Ryan Goodman and Derek Jinks, Socializing States: Promoting Human Rights Through International Law (Oxford: Oxford University Press, 2013); Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, eds., The Persistent Power of Human Rights: From Commitment to Compliance (Cambridge: Cambridge University Press, 2013).

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discourse with particular contemporary justice agendas.11 For instance, TWAIL scholars declare that human rights struggles, even when they are regarded as part of independence struggles, reveal a global gap of consistent practices.12 The ways that responsibility for systemic and structural violence has been claimed, denied, ascribed, enacted, or avoided have cartographical anchorage. Thus far, the North takes the credit for creating discourse and jurisprudence, while the South carries the burden of the heaviest violations and at the same time is singled out as the worst violator. We need a more evocative lens for understanding the place of human rights law and its variants within a global framework of emancipatory politics.13 As Vijay Prashad puts it ever so succinctly, “The Third World was not a place. It was a project.”14 TWAIL scholarship both specifies and expands upon the sense in which Third World or Global South was never a place per se. In the same spirit, in the following pages the Global South, as well as the North–South divide, is treated 11

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Here, I rely heavily on the following subsection of TWAIL scholarship: Luis Eslava, Michael Fakhri, and Vasuki Nesiah, eds., Bandung, Global History and International Law: Critical Pasts and Pending Futures (Cambridge: Cambridge University Press, 2015); K. Mickelson, “Taking Stock of TWAIL Histories,” International Community Law Review 10 (2008): 355; Obiora Chinedu Okafor, “Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?” International Community Law Review 10 (2008): 371; M. Khosla, “The TWAIL Discourse: The Emergence of a New Phase,” International Community Law Review 9 (2007): 291; Obiora Chinedu Okafor, “Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective,” Osgoode Hall Law Journal 43 (2005): 171; Makau Mutua and Antony Anghie, “What Is TWAIL?” Proceedings of the Annual Meeting, The American Society of International Law, 2000. See Anthony Anghie, “Colonialism and the Birth of International Institutions: Sovereignty, Economy, and the Mandate System of the League of Nations,” New York University Journal of International Law and Politics 34 (2002): 517; Jose Manuel Barreto, ed., Human Rights from a Third World Perspective: Critique, history and International Law (Newcastle upon Tyne: Cambridge Scholars Press, 2013), in particular his introductory essay, as well as Amy Maguire, “Contemporary Anti-Colonial Self-Determination Claims and the Decolonisation of International Law,” Griffith Law Review 22 (2013): 238, and Amy Maguire and Jeffrey Mcgee, “A Universal Human Right to Shape Responses to a Global Problem? The Role of Self-Determination in Guiding the International Legal Response to Climate Change,” Review of European Comparative and International Environmel Law 26 (2017): 54. Maguire and Mcgee contribute to the existing debate on the relevance of human rights struggle in the Global South in the specific context of climate change and greenhouse gas emissions. They focus on the foundational principle of the self-determination of peoples as a collective human right, which has emerged in the context of movements of decolonization and emancipation of oppressed peoples. In their belief, self-determination might offer an alternative logic of duty on high-emitting states to the plight of populations who find their territories under threat from anthropogenic climate change. Nicole Laliberte´, “Geographies of Human Rights: Mapping Responsibility,” Geography Compass 9 (2015): 57. Vijay Prashad, The Poorer Nations: A Possible History of the Global South (London: Verso, 2012).

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as part of some imagined universal legal order, which is subject to constant reinvention. Here, I will urge us to consider alternative lineages of the Global South outside the realm of state-based narrations of postcolonial politics as a way forward to redefine transitional justice and its inherent relationship with forced migration from the lens of the Global South. Indeed, it is essential to foreground aspects of the North–South divide that hinge upon the premise of intertwined regimes of accumulation, regulation, culpability, and responsibility. Only then can we truly challenge the topdown approach – the siren call of international human rights law and international criminal law in the Global South – and offer something more palatable in its place, based on a transnational politics of rights struggles, accountability for mass crimes, and substantive human emancipation.

more than unto each his own – hybrid courts in the global south The distinctive characteristics of regional, subregional, and hybrid courts operating outside of Europe suggest that in terms of application of international criminal law, the Global South is not an unwilling participant at best and an insignificant addendum to international law at worst. Tailgating TWAIL scholarship, I strongly argue otherwise, and the examples chosen here amply illuminate the reasons for insisting upon an alternative vantage point. Having said that, the question remains as to how effective these new courts have been and could be, in terms of dealing with state criminality pertaining to forced displacement and dispossession. As already stated, there is a growing number of new international courts, tribunals, and quasi-judicial review bodies that exercises compulsory jurisdiction over state parties which are mainly located in the Global South. All of these establishments attend to the needs of post-conflict and postwar societies. Secondly, established hybrid and international tribunals, despite their failings, trials, and tribulations, have been steadily expanding their authority over a wide range of legal actors, including but not limited to states. Overall these courts owe their strength to their limited-subject-matter mandates and conscribed geographic and chronological reach. The majority attend to regional affairs and internal conflicts that entail massive human rights violations, though with limited applicability to forced displacements, thus rendering them markedly important in the larger context of transitional justice. As such, they constitute a new terrain for the establishment of fragmented and yet reasonably operational accountability regimes in the

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Global South concerning state criminality. There is, it’s true, grounds for fear of a growing trend toward the judicialization of politics at a global scale in this regard. We certainly cannot take it on faith that creating new international courts or hybrid tribunals will immediately provide solutions to deep-seated societal and political problems, including those that directly affect victims of forced migration. Rather, the role played by the law in various struggles for social and political justice in the Global South, some of which are waged against postcolonial states themselves by their own citizens, constitutes the focus here. The case of hybrid courts signals the emergence of alternative forms of international law which call for a new take on transitional justice capable of capturing the potential of, and the tensions endemic to, counter-hegemonic forms of globalization. Forced migration and state-induced dispossession constitute good candidates for furthering this area of exploration. Although the legitimacy of domestic courts is no doubt more established than that of their international or hybrid counterparts, the risks of depending solely on domestic adjudication at historical junctions pertaining to transition from civil war, ethnic cleansing, genocide, occupation, and so on to a time of peace and reconciliation are far greater than resorting to divergent interpretations of international criminal law in these settings. State collapse, concerns about the impartiality of existing courts, and lack of codification of the kind of state crimes that fall under the purview of crimes against humanity within the domestic constitutional framework are just three of the most commonly encountered situations that foreground the limitations of domestic trials. Furthermore, third-generation (hybrid) courts are often regional in scope and, thus, cover both states and subterranean or nonstate actors within their jurisdiction. This is yet another advantage they have over both domestic and international courts. They have the ability to contextualize a given conflict, a most urgent need in the cases of mass political violence in Africa, Middle East the Balkans, or Southeast Asia, and in particular concerning mass dispossession and displacement. Equally importantly, while traditional international courts have had shallow – i.e. optional – jurisdictional powers, hybrid courts tend to have a much-deeper jurisdictional basis that leads to compulsory jurisdiction, since they act over a limited number of issues pertaining to a set number of parties. Thus far, perhaps, international courts and hybrid tribunals have made only limited contributions to the resolution of disputes that mark transitional justice schemes. At the same time, concerning broader trends in international adjudication, it is safe to suggest that based on the increasing number of rulings produced by regional tribunals and hybrid courts in Africa, Latin

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America, and Eurasia, there is an emerging litigation pattern that may be notably beneficial compared to decisions delivered by international courts.15 These rulings span a broad range of subjects, including customs, taxes, and tariffs and nontariff barriers to trade, as well as criminal proceedings targeting perpetrators, planners and decision-makers of mass violence, the last item being of particular interest in the context of transitional justice. In these alternative settings of hybrid jurisdiction, national as well as international judges, administrative officials, and private parties participate in litigation. The symbiotic relationship between international and national law exemplified by these courts and tribunals also has a broader significance. Even when (national) law proves moot, a distinctive group of substate actors, including human rights defenders, NGOs, political movements, and judges, can serve as conduits to bypass the indifference or even the resistance of governmental institutions to delivering justice where (though rarely when) it is due. Alas, whether this tally of issues does or could include victims of forced migration is yet to be seen.

the clarion call of international criminal law in post-conflict settings One of the more recent and noteworthy episodes in international criminal law pertaining to a rising demand for hybrid, as opposed to centralized, courts was the Darfur crisis. In July 2008, the chief prosecutor of the ICC in The Hague sought the indictment of the Sudanese president, Omar al-Bashir, on charges of genocide and war crimes.16 The Darfur case also involved a marked component of forced displacement of entire communities. It is noteworthy that even then foreign diplomats, regional leaders, and many Sudanese activists, including members of the political opposition in the country, expressed divided opinions in their evaluation of this indictment. Some supported the 15

16

The Andean Court of Justice, the Court of Justice of the Economic Community of West African States, the Caribbean Court of Justice, the Court of Justice and Arbitration of the Organization for the Harmonization of Business Laws in Africa, and the East African Community Court of Justice are some of the leading examples of non-European regional courts with a strong human rights–related track record of rulings. For the text of the ICC indictment as well as the text of the April 2009 arrest warrant, please see the relevant documents at www.icc-cpi.int/pages/record.aspx?uri=639078; the indictment indicates that the Sudanese president is suspected of being criminally responsible, as an indirect co-perpetrator, for intentionally directing attacks against a selected part of the civilian population of Darfur, Sudan, and murdering, exterminating, raping, torturing, and forcibly transferring large numbers of civilians and pillaging their property. This is the first warrant of arrest issued for a sitting head of state by the ICC.

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idea of prosecuting President Bashir and his leading cadres for the human catastrophe they are alleged to have inflicted on Sudan’s western province of Darfur.17 At the same time, a large number of NGOs, political groups, and legal scholars in the Global South were not comfortable with the indictment of a serving president by an international court situated in Europe, due to two factors: its neocolonialist optics and the indictment’s possible negative effects on Sudanese society. For instance, human rights circles repeatedly stated that a vindictive Bashir could resort to a number of violent strategies in response to the ICC’s indictment, which could indeed make the situation in Sudan worse than before.18 They argued that President Bashir’s repertoire of actions could include ending the already fragile peace process in Darfur, expelling UN troops from the region, and retarding the implementation of a peace agreement between his government and the former rebels in south Sudan.19 Differences in interpretation persisted when in April 2010 President al-Bashir won Sudan’s first multiparty elections in twenty-four years, despite the fact that observers criticized the election as falling short of international standards. Many opposition parties withdrew from the race, alleging widespread vote-rigging and intimidation. In the light of the developments and concerns exemplified by the case of Sudan, it is necessary to ask whether a better mechanism of international criminal law could be envisaged to hold individuals responsible for the type of atrocities perpetrated in Darfur, and elsewhere in the Global South, without

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For a general global survey regarding the perception of the indictment, see the IPS poll results published in July 2009 at www.un.org/africarenewal/magazine/october-2009/pursuit-justice-orwestern-plot. The survey results indicate that the publics in four majority-Muslim and African nations, contrary to the positions of their governments, largely approved of the indictment of President Bashir by the International Criminal Court. This is despite the fact that many fellow African and Muslim leaders have supported Bashir and argued that the indictment was politically motivated. On this issue, see the manifesto of Doctors without Borders at http://doctorswithoutborders.org/ publications/article.cfm?id=3516&cat=op-eds-articles. Their worry was directly related to the fact that with attacks on remaining aid workers increasing, the Sudanese president had declared that all international humanitarian aid organizations must leave the country in the foreseeable future, thus further endangering the delivery of food, water, and medical care to millions of people in the war-scarred region. These expulsions are seen as reprisals against groups suspected of being involved with the ICC investigations, as well as against governments that support the indictment of President al-Bashir. Elections were swiftly delayed in the aftermath of the ICC indictment. Under the 2005 peace deal to end years of war in the south, these elections were supposed to be held in 2009. The SPLM, former rebels from the south, were expected to field a candidate against President Omar al-Bashir. In 2010, there were six elections: national, presidential, and parliamentary, the south Sudanese presidency, state governors, the southern parliament and state assemblies. The polls were Sudan’s first democratic elections in more than two decades. See BBC, “Sudan Elections Put Back to 2012,” BBC News, April 2, 2009, http://news.bbc.co.uk/2/hi/7980032.stm.

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jeopardizing the safety of local populations or creating an aura of neocolonial moral and legal superiority. Furthermore, how meaningful and beneficial is it for acts that constitute state criminality to be subject to universal jurisdiction if the local constituency, including victims’ groups, rejects or disagrees with the charges, methods of trial, or both? More specifically, what are the implications of trials held in an international court, removed from the original locale where the crimes were committed, rather than being deemed as an internal affair of the societies in question? In Sudan, for instance, in response to significant worries about escalation of violence in the aftermath of the ICC indictment against President al-Bashir, Sadiq al-Mahdi, the country’s most prominent opposition politician, urged for a “third way” solution.20 Like many in human rights circles, he believed that an ICC indictment of President Bashir would lead to further chaos in Sudan.21 He did not agree that hauling the Sudanese president to The Hague would achieve much in terms of the crimes in Darfur including forced displacements. Instead, he suggested setting up an independent “hybrid” court for Darfur, which would have both Sudanese and international judges, and would sit in Sudan as opposed to Europe, the land of excolonial powers. The idea of mixing national and international jurisprudence and legal procedures, and of holding difficult trials for societal crimes on home turf, has already been accepted in Sierra Leone and Cambodia, among others.22 It is true that these two examples have thus far yielded only mixed success. Still, the overall prospect of hybrid courts possesses both legal and political attractiveness. A hybrid or “internationalized” court could dispense justice close to the scene of the crime, and at the heart of the society directly affected by the atrocities. In the case of Sudan, if such a special court were deemed to be a genuine, impartial attempt to obtain justice, the ICC could defer its indictment of President Bashir under Article 16 of the Rome Statute.23 20

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Al-Mahdi had been the head of the Umma Party, as well as the last democratically elected prime minister in 1986 before being toppled by a coup. He is also the spiritual leader of the powerful Ansar sect in the region. For his political profile, see his biography, published by the Club of Madrid, an independent pro-democracy consortium, at www.clubmadrid.org/miem bro/sadig-al-mahdi/, accessed July 20, 2018. For a sample of these arguments, see Websolve, “The ICC, Sudan, and the Crisis of Human Rights,” African Arguments Online, March 5, 2009, http://africanarguments.org/2009/03/theicc-sudan-and-the-crisis-of-human-rights/. African Arguments Online is a counterpart to the African Arguments book series, edited jointly by Alex de Waal and Richard Dowden, published by Zed Books in the United Kingdom and Palgrave Macmillan in the United States. For a detailed account of the jurisprudence of these hybrid courts, see the UN documents at www.ohchr.org/Documents/Publications/HybridCourts.pdf, accessed July 20, 2018. The Rome Statute establishing the ICC contains a provision, Article 16, which allows the UN Security Council to pass a resolution (under its Chapter 7 authority) to defer an ICC investigation or prosecution for a renewable period of twelve months. Article 16 states in full:

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Finally, a hybrid court with a strong domestic element would have the strength to counter the furious denunciations of the ICC charges and indictments as a Western imperialist plot against the Bashir government and its supporters. Based on the understanding of these potential gains for transitional justice as a societal project with a historical dimensions, rather than a package of mechanized solutions, the remainder of this chapter will examine select examples of hybrid courts, as these signal an emerging model of transnational justice that is different than what has been pursued before in international criminal law. The benefits of case-specific and circumscribed application of universal jurisdiction, as endorsed by the hybrid courts that have emerged under the guidance of or in consultation with the ICC during the last decade, must be fully explored.24 Upon closer examination of the recent examples of hybrid courts in Kosovo, East Timor, Sierra Leone, Cambodia, and Bosnia and Herzegovina, it becomes clear, that the current set of hybrid courts differ from one another in critical respects. To attribute promise to the category of hybrid courts as a whole may thus lead to the same mistake we have made about high courts in the area of international criminal law in previous decades. A more realistic approach would be to evaluate hybrid courts as part of a large continuum of fragmented practices of transitional justice and accountability for state criminality, which include truth and reconciliation commissions, local adaptations of the Rome Statute, expansive application of human rights mechanisms to improve general standards of societal responsibility in the event of mass crimes, and addressing mass displacement and the right of return and/or compensation needs of the dispossessed populations.

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“No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.” For a debate on the use of Article 16 of the Rome Statute in the Darfur context, see “Article 16: Questions and Answers,” Human Rights Watch, August 15, 2008, www.hrw.org/en/news/2008/08/15/q-article-16. See, for instance, Laura Dickinson, “The Relationship Between Hybrid Courtsand International Courts: The Case of Kosovo,” New England Law Review 37 (2003): 1059; as well as her “Using Legal Process to Fight Terrorism: Detentions, Military Commissions, International Tribunals, and the Rule of Law,” Southern California Law Review 75 (2002): 1407 and “The Promise of Hybrid Courts,” American Journal of International Law 97 (2003): 295. Also see Abdul Tejan-Cole, “The Complementary and Conflicting Relationship Between the Special Court for Sierra Leone and the Truth and Reconciliation Commission,” Yale Human Rights and Development Law Journal 6 (2003): 139; Suzanne Katzenstein, “Hybrid Tribunals: Searching for Justice in East Timor,” Harvard Human Rights Journals 16 (2003): 245; and Secretary-General, The Rule of Law and Transitional Justice in Conflict and Postconflict Societies, U.N. Doc. S/2004/616 (August 23, 2004).

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There is no doubt that hybrid mechanisms blending international and domestic elements have the capacity to deliver improved justice measures – especially when they are undertaken via local judicial reforms, thus initiating a process of serious commitment to legal accountability for war crimes and crimes against humanity in post-atrocity settings, all of which often has a marked “mass displacement” element at play. At the institutional level, the claim of universal jurisdiction put forward by the ICC has severe limitations, in particular with regard to the needs of displaced populations. To begin with, many crimes currently ailing post-conflict societies cannot be tried by the ICC, since conflicts that occurred before the Rome Statute went into effect, or ongoing conflicts in nonsignatory nations, lie beyond the jurisdiction of the court. Secondly, even when the ICC has jurisdiction over a set of crimes, its mandate is primarily limited to questioning the involvement of a handful of senior figures. In other words, societal responsibility is not within the reach or the mandate of the court with reference to the overall process of transitional justice. In the light of these concerns, a closer look into the promise of a fragmented embrace of war crimes and crimes against humanity legislation via hybrid courts, and what they entail for current projects of transitional justice and societal accountability for mass atrocities, is most timely. Going back to the case of Sudan, on October 13, 2016, the African Union Commission (AUC) launched a campaign to “restore the dignity of women and to ensure accountability in South Sudan.”25 This campaign was intended to lobby for accountability and an end to the atrocities that have disproportionately affected women in South Sudan. It was organized in solidarity with the women of South Sudan, and spearheaded by the AU Special Envoy on Women, Peace, and Security in Addis Ababa.26 The outcomes of the campaign were to be presented to high-ranking South Sudanese officials. While accountability has been touted as a key element for peace and reconciliation in South Sudan, it remains to be seen whether the envisaged hybrid court for South Sudan would be able to try sitting leaders and senior government officials who had involvements with the atrocities in the country.27 Human rights reports on the South Sudanese conflict consistently point out that the 25

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African Union, “Press Conference to Launch the African Union Campaign to Restore the Dignity of Women and for Accountability in South Sudan,” October 13, 2016, www.au.int/en/ newsevents/31469/press-conference-launch-african-union-campaign-restore-dignity-womenand See “Bineta Diop: Special Envoy on Women, Peace, and Security,” African Union Peace and Security, updated July 13, 2017, www.peaceau.org/en/page/40-5676-static-bineta-diop. Concerning the latest efforts for establishing a South Sudanese hybrid court, see Patryk I. Labuda, “The Hybrid Court for South Sudan: Looking for a Way Forward (Part 2),” Justice in Conflict, February 28, 2017, https://justiceinconflict.org/2017/02/28/the-hybrid-court-

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country’s leaders bear responsibility for the war crimes and crimes against humanity perpetrated in the country, and have in fact benefited from these offenses.28 Thus, any real effort to ensure accountability in South Sudan needs to engage the role of the South Sudanese leaders. Efforts continue at the legal affairs department of the AUC to mobilize funds and finalize the memorandum of understanding (MoU) for the establishment of the hybrid court. This is in line with the Agreement on the Resolution of the Conflict in the Republic of South Sudan, signed by former vice president Riek Machar and President Salva Kiir.29 According to the peace agreement and the MoU, the mandate and the jurisdiction of the proposed hybrid court should have been finalized within six months of the formation of the government of national unity, which took place in April 2016. The hybrid court was to be operational within twelve months of that date, that is, April 2017. However, the ongoing violence, and the replacement of Machar with Taban Deng Gai as vice president of the government of national unity, stalled this process, and attention is instead focused on ending the most recent crisis. As it is, the authorities refuse to execute arrest warrants issued by the ICC. The security and humanitarian situation in Darfur, Blue Nile, and South Kordofan states remains dire, with widespread violations of international humanitarian and human rights law. Furthermore, evidence points to the use of chemical weapons by government forces in Darfur. The rights to freedom of expression, association, and peaceful assembly are repeatedly and arbitrarily restricted, and critics and suspected opponents of the government have been regularly subjected to arbitrary arrest, detention, and other violations.

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for-south-sudan-looking-for-a-way-forward-part-2/. Also see Nicki Kindersley and Oystein Rolandsen, “Briefing: Prospects for Peace and the UN Regional Protection Force in South Sudan,” African Affairs (2016), https://doi.org/10.1093/afraf/adw067. South Sudan is a country in transition that is still struggling with the consequences of the fifty-year civil war as well as resurging internal ethnic conflict. The most recent ethnic clashes in South Sudan are evidence that one of the main challenges for the newly independent country in its continued effort in state building is the implementation of an accountability regime for organized political violence in the midst of more than sixty different ethnic groups. These include key reports by the AU Commission of Inquiry Report at www.peaceau.org/en/ article/final-report-of-the-african-union-commission-of-inquiry-on-south-sudan, the Human Rights Watch Report on Sudan at www.hrw.org/world-report/2017/country-chapters/sudan, the United Nations Human Rights Council Report on Sudan at www.ohchr.org/EN/HRBo dies/HRC/CoHSouthSudan/Pages/Index.aspx, and Amnesty International’s Report on Sudan at www.amnesty.org/en/countries/africa/sudan/report-sudan/, all accessed July 20, 2018. For the full text of the Agreement signed on August 17, 2015, see https://unmiss.unmissions .org/sites/default/files/final_proposed_compromise_agreement_for_south_sudan_conflict .pdf, accessed July 20, 2018.

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These “internal hindrances” aside, a crucial question remains: Will the AU Assembly of heads of state and government – its highest decision-making body – draw up legislation for a hybrid court that enables it to try leaders and senior government officials? For instance, Chapter 5 of the peace agreement stipulates that the hybrid court “shall not be impeded or constrained by any statutes of limitations or the granting of pardons, immunities or amnesties. No one shall be exempt from criminal responsibility on account of their official capacity as a government official, an elected official, or claiming the defense of superior orders.”30 Meanwhile, the AU remains in favor of immunity for sitting heads of state and senior government officials. This development came after the ICC’s issuance of an arrest warrant for President Omar Al Bashir of Sudan in 2009. The AU’s new immunity stance led to the inclusion of an immunity clause in Article 46A of the 2014 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights.31 In effect, prior to the Sudan issue, the AU has fought desperately, in the case of Kenya and Sudan, for the lifting of ICC charges against leaders in office. The AU also recently called for an inquiry into a collective withdrawal from the ICC based on the differences over immunity concerns in Africa.32 Burundi, South Africa, and Gambia have already announced their withdrawal from the ICC.33 30

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Also see the legal opinion expressed in the Office for Democratic Institutions and Human Rights, “Opinion on the Draft Act of the Crime of Enforced Disappearance in Tunisia,” May 6, 2016, www.osce.org/odihr/elections/tunisia/247346?download=true This new article is to replace the 2008 Protocol on the Statute of the African Court of Justice and Human Rights, which had no immunity clause. For the immunity clause, the relevant AU document and the full text of the article, see International Justice Resource Center, “African Union Approved Immunity for Government Officials in Amendment to African Court of Justice and Human Rights’ Statute,” July 2, 2014, www.ijrcenter.org/2014/07/02/african-unionapproves-immunity-for-heads-of-state-in-amendment-to-african-court-of-justice-and-humanrights-statute/. Accordingly, “no charges shall be commenced or continued before the court against any serving AU head of state or government or anybody acting or any entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.” See Sarah Kasande, Chris Gitari, and Mohamed Suma, “AU Strategy for Collective Withdrawal from the ICC a Non-Starter,” ICTJ, February 16, 2017, www.ictj.org/news/auwithdrawal-icc-non-starter. The treaty leading to the Rome Statute (2002) had 124 member states, including 34 African states, which represent the largest regional bloc of member states. Since then, many African countries have expressed dissatisfaction with the court and have accused it of bias. The Gambia announced on October 25, 2016, that it would withdraw from the ICC, calling the Court an “International Caucasian Court” for the persecution and humiliation of people of color, especially Africans. Similarly, Burundi labeled the ICC as a “Western tool to target African governments.” Uganda’s president Yoweri Museveni called the ICC “useless,” and praised South Africa’s decision to leave. Namibia is also reconsidering its membership.

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The dilemma is that, according to the Sudanese peace deal, the same leaders who would have to be tried by the hybrid court are meant to occupy leadership positions in the transitional government of national unity. For instance, the South Sudanese deal keeps South Sudanese leaders in the positions they occupied before the war started. The dynamics among the member states of the Intergovernmental Authority on Development (IGAD), who are mediating in the South Sudan conflict, indicate that the question of leadership accountability is a contested one. Hence, there is not enough regional support to deter South Sudanese leaders from orchestrating further violent atrocities and forced displacements. The hybrid court for South Sudan could thus end up prosecuting lesser officials and soldiers of both Kiir and Machar factions. Due to these concerns, some observers attending the issue of accountability in South Sudan have recommended that an alternative international body should provide the necessary checks and balances.34 Others have recommended that the South Sudanese leaders should be bound through the peace agreement to ratify the Rome Statute, thereby enabling the ICC to intervene if they attempt to undermine the efforts of the hybrid court – though no doubt, given the present climate, this is one of the most unrealistic solutions proposed. Although the peace agreement is vague about the role of the transitional government in the workings of the hybrid court, Chapter 5(1.1) of the agreement states that the transitional government “shall initiate legislation for the establishment of the transitional justice institutions,” and Chapter 5(1.5) expects the hybrid court to cooperate with the AU and the international community in its operationalization.35 This gave the transitional government some leverage to

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Additionally, the AU earlier this year said it would consider a mass withdrawal from the court – a proposal initiated by Kenyan president Uhuru Kenyatta, who had previously appeared at The Hague on allegations of crimes against humanity. Despite this, the court also has supporters in the region. At the AU summit meeting in July 2016, the Democratic Republic of Congo, Ivory Coast, Nigeria, Senegal, and Tunisia were among the countries that opposed a Kenyan-led drive for a group walkout. Currently, nine out of ten cases the court is investigating are in African countries (Mali, Cote D’Ivoire, Central African Republic, Libya, Kenya, Sudan, Uganda, Democratic Republic of Congo). Georgia is the only country not in Africa facing an investigation. One example given of bias is the fact that The Gambia has pressured the ICC to try and punish the European Union for the deaths of thousands of African migrants trying to reach its shores, yet has been unsuccessful. See Jean-Baptiste Jeangebe Vilmer, “The African Union and the International Criminal Court: Counteracting the Crisis,” International Affairs 92 (2016): 1319. See American Bar Association, “Assessment of Justice, Accountability and Reconciliation Measures in South Sudan,” ABA Rule of Law Intiative, June 2014, www.americanbar.org/ content/dam/aba/directories/roli/sudan/aba_roli_sudan_assessment_final_report_0614.auth checkdam.pdf See Rosanna Lipscomb, “Restructuring the ICC Framework to Advance Transitional Justice: A Search for a Permanent Solution in Sudan,” Columbia Law Review (2006): 182.

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influence the establishment and mandate of the hybrid court from the outset. In the end, however, the liability of South Sudanese leaders for the heinous atrocities and human rights abuses in the country rests on the balance of societal pressure and political negotiations, and not just the legislative intent of the proposed hybrid court per se. Neither could these dynamics be reversed or undone by the sheer presence of ICC indictments. In the case of mass political violence, and in particular mass displacement, (criminal) law and politics go hand in hand to introduce change, rather than the former leading the latter in providing solutions and rectificatory and restitutive justice.

conclusion: fragmented regimes of accountability for state criminality and transitional justice Due to disappointments and difficulties with both local trials and international tribunals in the area of international criminal law, hybrid courts and tribunals are increasingly seen as a compromise that could benefit from the strengths of international jurisprudence while minimizing the weaknesses and “side effects” of central institutions such as the ICC, particularly concerning the charge of neocolonialism.36 A hybrid tribunal is indeed a distinct instrument of international criminal law. From the point of view of an international/ transnational regime of accountability, hybrid courts are expected to benefit from the outreach of universal jurisdiction and the codification of international criminal law achieved by various conventions and the Rome Statute, while honoring domestic legal traditions. During the post-ICC era, the first hybrid court was established in Kosovo in 2000, followed by hybrid courts in East Timor, Sierra Leone, and Bosnia. Cambodia is in the final stages of a hybrid court to address crimes committed by the Khmer Rouge,37 and Lebanon is yet another country to have expressed desire to create a hybrid 36

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Mary Kimani, “ICC and Africa: Pursuit of Justice or Western Plot? International Indictments Stir Angry Debate in Africa,” Africa Renewal 23 (2009): 3; and Max du Plessis, The International Criminal Court and its work in Africa: Confronting Myths (ISS Paper 173, November 2008). The Khmer Rouge seized power in Cambodia in 1975 and killed more than a million people during its four-year rule. It was only in March 2003 that the United Nations reached a draft agreement with the Cambodian government for the establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC) to try former Khmer Rouge leaders. The agreement took five years of negotiations and only came into effect twenty-four years after Khmer Rouge were driven from power. The ECCC consists of both Cambodian and international judges and has exclusive jurisdiction over selected crimes committed by the Khmer Rouge regime between 1975 and 1979. However, only one person has been indicted due to interference from the government and resource issues, as well as responsible persons passing the age of seventy. For further details on the ECCC, see the UN’s page at www.un.org/rule

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tribunal.38 There were also internal and external political demands for Sudan’s President Bashir to be tried by a hybrid court rather than by the ICC. Then there is the successful resolution of the trial of the former dictator of Chad, Hisse`ne Habre´, in the Senegalese hybrid court. Concerning this last example, the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, known as the Malabo Protocol,39 truly reconceptualized the idea of transitional justice mechanisms and purported that national transitional justice mechanisms can encompass regional and transnational efforts to respond to mass political violence. In this sense, the Protocol actively seeks to correct perceived biases in international criminal justice. As such, it offers African states, and the Global South at large, a substantive alternative vision of local and regional criminal justice and criminal accountability for state criminality targeting a state’s own civilian population.40 In this chapter, the starting premise on hybrid courts has been that domestic criminal justice systems have options for flexible responses not currently available to the ICC, and that these options extend beyond criminal proceedings to encompass civil proceedings, the latter being particularly important for the address of forced displacements. The right to sue governments and out-of-court settlements supervised by judges that allow for the participation of those harmed also promise a wider range of potentially satisfying compensatory activities for state-induced harms. These and other strategies of litigation inch towards wellgrounded restorative justice measures, and do not limit accountability for societal harm to criminal proceedings. That is perhaps where hybrid courts have so far been underutilized, due to their dependency on the list of crimes and trial procedures defined by the Rome Statute. This is a matter of great importance concerning victims of forced migration during and in the aftermath of state brutality or civil war, and sometimes of both at the same time. Restorative justice, in contrast to retributive justice as embodied in international criminal law, does not focus solely on the punishment of the offender, but rather seeks to address the needs of both the victim and the offender, with

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oflaw/thematic-areas/international-law-courts-tribunals/international-hybrid-criminal-courtstribunals/, accessed July 20, 2018. See G. Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford: Oxford University Press, 2005). For the actual text of the Malabo Protocol, see Amnesty International, Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded African Court, 2016, www .amnesty.org/download/Documents/AFR0130632016ENGLISH.PDF. On the promise of a new model of international criminal justice emerging from the African context, see Leigh Stewart, “International Justice in Africa: Defining Authority and Localizing the Global,” iCourts Working Paper Series 86 (2017), http://dx.doi.org/10.2139/ssrn.2917110.

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the goal of restoring the broader well-being of the individuals and communities involved.41 An equally important point is that contemporary prosecutions at have demonstrated that, where individuals are convicted of core international crimes, the resources available for reparations are often grossly insufficient to meet even the basic restitution needs of both the victims and the society at large, particularly those of displaced and dispossessed populations. In addition, most of the wealth that might exist as a result of crimes such as crimes against humanity or war crimes is likely to be in the hands of individuals via corporations or other artificial persons who have gained property and income through these mass human rights violations, and, again, especially by way of appropriating the land and belongings of dispossessed masses. Unfortunately, neither the ICC nor ad hoc’ tribunals (together known as ICCTs) have adjudicative jurisdiction over artificial persons (in legal terms) of any sort. This means that any progress on restitution and restorative justice must come through national tribunals. The same principle applies to both core international crimes and the broader category of human rights treaty crimes, which remain outside the authority of ICCTs anyhow.42 Therefore, in the context of transitional justice schemes, translating the experiences of restorative justice into international criminal law dealing with mass atrocities including forced displacements is not simple. While restorative justice is traditionally used in response to lower-impact crimes such as property damage or fraud, it has also been successfully used in response to higher-order offenses such as sexual assault or murder, where the victim or their family and the offender agree to participate, and where traditional retributive forms of punishment, such as imprisonment, could not resolve the issue of long-standing

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An important part of the debates on restorative justice is a critical analysis of how the main “crime stakeholders” (victim, offender, and the community at large) are represented within policy framework and legal statutes. The most recurrent normative representations of the victim, offender, and community exhibit a range of typified features. In real cases, however, there is no “ideal” victim or offender and communities are often implicit in mass crimes, pinpointing many overlaps. Finally, the political and cultural contexts within which these representations have emerged historically influence both policy and laws pertaining to their litigation. Here, restorative justice is taken as to offer more than a critical reflection on the normative dimension of Western penal policies. On the restorative justice debate, see Daniel W. Van Ness and Karen Heetderks Strong, Restoring Justice: An Introduction to Restorative Justice (New York: Routledge, 2014); and Gerry Johnstone, Restorative Justice: Ideas, Values, Debates (New York: Routledge, 2013). See Kerry Clamp, “Clearing the Conceptual Haze: Restorative Justice Concepts in Transitional Settings,” in Restorative Justice in Transitional Settings, ed. Kerry Clamp (London: Taylor & Francis, 2006), 1–21; Philio McCready, Can Restorative Practices Work in a Loyalist Area?: A Case Study on Restorative Responses to Community Conflict of a Loyalist Area in South Belfast, PhD dissertation, Ulster University, 2016.

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damages. As a case in point, the potential utility of restorative justice measures in the context of hybrid court trials and for past mass atrocities was a lively public debate and in and around the Juba Peace Talks in Uganda.43 The July 2007 agreement between the Ugandan government and the Lord’s Resistance Army (LRA) on Accountability and Reconciliation stated that traditional justice mechanisms as practiced in the communities affected by the conflict shall be promoted, with necessary modifications, and that restorative justice measures would be treated as a central part of the framework for accountability and reconciliation.44 Although the Final Peace Agreement was not signed, various forms of traditional restorative justice in northern Uganda have been used extensively with lower-level LRA members who have returned to their communities.45 However, even these more promising examples pertaining to the functioning of hybrid courts in terms of meting out nonstandard and socially responsive forms of justice do not include addressing mass atrocities and violations in the context of forced displacement. 43

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The war in Northern Uganda between the Lord’s Resistance Army (LRA) and Government of Uganda (GoU) forces dates back to 1986. In 2006, the Juba Peace Talks were held between the GoU and the LRA, mediated by Riek Machar, the vice president of South Sudan. However, LRA leader Joseph Kony refused to sign the final peace agreement, and the LRA has been at large since. Military campaigns by all parties to the twenty-year conflict led to fierce attacks on civilian populations across Northern Uganda, which included raping, mutilating, and abducting civilians, raiding villages, and looting and burning houses. The conflict has had disastrous economic, physical, social, and psychological effects on the entire civilian population. It is essential to note that both during and after the conflict, women played important roles as combatants, in support roles in the military, as well as the domestic sphere and in initiating community-led approaches to ending the violence. Nonetheless, transitional justice discussions in Uganda almost exclusively focus on male parties to the conflict only. For a policy brief describing gender-based violence, its occurrence and effects on local communities during and after the conflict in Northern Uganda, see Sylvia Pinia and Frederike Bubenzer, Gender Justice and Reconciliation in Uganda (Cape Town: Institute for Justice and Reconciliation, 2011). For the full text of the government’s declaration, see Julius Ocen, “Can Traditional Rituals Bring Justice to Northern Uganda?” Institute for War and Peace Reporting, October 16, 2007, https://iwpr.net/global-voices/can-traditional-rituals-bring-justice-northern-uganda. A small sample of the critical literature on Ugandan Peace Talks includes the following: Ronald R. Atkinson, “From Uganda to the Congo and Beyond: Pursuing the Lord’s Resistance Army,” International Peace Institute, December 2009, www.ipacademy.org/media/pdf/publi cations/e_pub_uganda_to_congo.pdf; Adam Branch, “Uganda’s Civil War and the Politics of ICCIntervention,” Ethics and International Affairs 21 (2007): 179; Mareike Schomerus, “Small Arms Survey. The Lord’s Resistance Army in Sudan:A History and Overview” (Geneva: Graduate Institute of International Studies, 2007); Moses Chrispus Okello, “The False Polarisation of Peace and Justice in Uganda,” Expert paper presented as Justice in Situations of Ongoing Conflict Conference, International Center for Transitional Justice, Nuremberg, Germany, June 2007, www.peace-justice-conference.info/download/WS-2-Expe rt%20Paper-Okello.pdf. The author of this chapter had the privilege of working with Moses Okello and Chris Dolan in Uganda on issues pertaining to transitional justice measures and forced migration in the summer of 2012.

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The question is perhaps not so much whether any court that deals with state criminality and mass political crimes during the process of transitional justice would have jurisprudence in place to deal with forced migration-related crimes, but whether courts are indeed the right place for such remedies to be sought in the first place. Indeed, some of the practical questions faced by both the state and the society during the aforementioned Uganda peace talks reveal the essential element of limitations posed by criminal trials alone. For instance, how should abducted children forcably removed from their communities who committed atrocities be treated, when they are both victims and perpetrators? Can traditional justice work both for formerly abducted children who became LRA fighters under duress and for LRA commanders and those who enlisted voluntarily as adults? Traditional forms of restorative justice that are locally rooted and adapted for the purpose of reconciliation, truth-telling, and advancing peace for a just social and political future order do not have to take place in opposition to or in isolation from ICCT involvement.46 However, even in this hybrid setting, the question remains as to whether simply prosecuting and convicting Kony and a few of his senior commanders would indeed satisfy the larger needs of transitional justice in the Ugandan context.47 Overall, a multilayered, locally nuanced set of approaches to finding justice and peace as part of large-scale sociopolitical transition is more likely to deliver the needed results, a possibility that could be made into reality through the mechanisms of a hybrid court. The verdict from the Global South is that the ICC pursued a narrow criminal justice mandate under the Rome Statute to investigate and prosecute those primarily responsible for committing mass atrocities.48 According to the ICC’s defining principle of complementarity, the court will take on an atrocities case only if the domestic courts are “unable or unwilling” to do so. The court may also agree to hand over the prosecution of a case in midstream, if its judges are convinced that the proposed special domestic (or hybrid) court would be as strict and fair in its application of justice – including its sanctions – as the ICC itself.

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Lucy Hovil and Joanna Quinn, “Peace First, Justice Later: Traditional Justice in Northern Uganda,” Refugee Law Project Working Paper No. 17. (Kampala: Refugee Law Project, 2005), www.refugeelawproject.org/working_papers.php. International Crisis Group, Northern Uganda: The Road to Peace, With or Without Kony, Africa Report No. 146, December 10, 2008. See Franziska Boehme, “‘We Chose Africa’: South Africa and the Regional Politics of Cooperation with the International Criminal Court,” International Journal of Transitional Justice 24 (2016).

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To conclude, international criminal law pertaining to war crimes, crimes against humanity, and genocide – perhaps better clustered together as societal crimes, the totality of which falls under the purview of transitional justice – constitutes a fragmented accountability regime. The common mistake is to limit the roster of actors that constitute it to state parties and international institutions such as international courts. The ICC is an independent, permanent court that tries persons accused of the most serious crimes of international concern under its aegis. The ICC was established based on a treaty, which was originally joined by 108 countries.49 However, ultimately the ICC is a court of last resort. It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine, for example if formal proceedings were undertaken solely to shield a person from criminal responsibility. In addition, the ICC can only try those accused of the gravest crimes. As we have seen from the existing trials, in reality hybrid courts are much better equipped than the ICC to ensure such results. By derivation, the same principle applies to remedial measures to be accorded to populations adversely effected by mass displacement and dispossession due to state criminality, internal strife and civil conflict. In this regard, perhaps it is time to revise received wisdom concerning the operation of international criminal law in the Global South, particularly with reference to the roster of activities that commonly constitute transitional justice projects. Rather than seeing the matter as an ongoing competition between two conceptions of the role states play in the universal jurisdiction regime (i.e., national vs. international accountability and enforcement), the emphasis could be put on the mandate of the jurisdiction itself. States are not the “global enforcers” of international criminal law verbatim. Although signatory states have a role in preventing and punishing core international crimes committed anywhere in the world, which is the “no safe haven” conception, states should not be seen as the guardians of the victims of crimes perpetrated by other states, either.50 More to the point, the anti-impunity rationale of international criminal law should not be reduced to a legalistic position and a zealously Northern rhetoric about universal jurisdiction. The “postcolonial legalism” approach to international law has already established a critical jurisprudential tradition that asks how actors use and apply law, in order to understand how law

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See the lengthy tally of criminal state behavior provided in Nasser Zammit, Human Rights and Responsibility (Saint Denis, France: Connaissances et Savoirs, 2012). Ma´ximo Langer, “Universal Jurisdiction is Not Disappearing: The Shift from ‘Global Enforcer’ to ‘No Safe Haven’ Universal Jurisdiction,” Journal of International Criminal Justice 13 (2015): 245.

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obtains meaning, is practiced, and changes over time.51 The rise of transnational activity that led to an enlarged scope of both national and transnational problemsolving strategies through international law further enhances this viewpoint. Debates on universal jurisdiction concerning gross and systemic humanitarian law violations have long suffered from a single focus on institutional certainties or a neutered state-centric worldview.52 It is time to look closely at the realities of state criminality on the ground, and to give up the obsession with what goes on in the chambers of international courts with their headquarters situated in the North. However, we must also admit that strategies and answers about human suffering in the Global South coming from within are far from complete, especially concerning the plight of the victims of forced displacement and dispossession. There is work to be done, which requires the dismantling of ideological certainties that we readily apply to critical jurisprudence pertaining to state criminality and crimes against humanity.

references American Bar Association. “Assessment of Justice, Accountability and Reconciliation Measures in South Sudan.” ABA Rule of Law Intiative, June 2014. www.americanbar.org/content/dam/aba/directories/roli/suda n/aba_roli_sudan_assessment_final_report_0614.authcheckdam.pdf Amnesty International. Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded African Court. 2016. www.amnesty.org/download/ Documents/AFR0130632016ENGLISH.PDF. Anghie, Anthony. “Colonialism and the Birth of International Institutions: Sovereignty, Economy, and the Mandate System of the League of Nations.” New York University Journal of International Law and Politics 34 (2002): 513. Armaline, William, Davita S. Glasberg, and Bandana Purkayastha, eds. The Human Rights Enterprise: Political Sociology, State Power, and Social Movements. Hoboken, NJ: John Wiley & Sons, 2015. “Article 16: Questions and Answers.” Human Rights Watch. August 15, 2008. www.hrw.org/en/news/2008/08/15/q-article-16.

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See Partha Chatterjee, “Introduction: Postcolonial Legalism,” Comparative Studies of South Asia, Africa and the Middle East 34 (2014): 224. This is a special issue that explores the specific field of postcolonial practices of the law in four countries: India, Sri Lanka, Lebanon, and South Africa. The key concern in all discussions of the legal-constitutional framework of postcolonial politics is the question of social transformation induced by law rather than law’s superior position as an abstract construct. Nancy Combs, “Seeking Inconsistency: Advancing Pluralism in International Criminal Sentencing,” Yale Journal of International Law 41 (2015): 387.

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Atkinson, Ronald R. “From Uganda to the Congo and Beyond: Pursuing the Lord’s Resistance Army.” International Peace Institute. December 2009. www .ipacademy.org/media/pdf/publications/e_pub_uganda_to_congo.pdf Barreto, Jose Manuel, ed. Human Rights from a Third World Perspective: Critique, history and International Law. Newcastle upon Tyne: Cambridge Scholars Press, 2013. BBC. “Sudan Elections Put Back to 2012.” BBC News. 2 April 2009. http:// news.bbc.co.uk/2/hi/7980032.stm. Boehme, Franziska. “‘We Chose Africa’: South Africa and the Regional Politics of Cooperation with the International Criminal Court.” International Journal of Transitional Justice 24 (2016): 50–70. Branch, Adam. “Uganda’s Civil War and the Politics of ICC Intervention.” Ethics and International Affairs 21 (2007): 179. Bruch, Elizabeth. “Hybrid Courts: Examining Hybridity through a Post-Colonial Lens.” Boston University International Law Journal 28 (2010): 1. Chatterjee, Partha. “Introduction: Postcolonial Legalism.” Comparative Studies of South Asia, Africa and the Middle East 34 (2014): 224 Clamp, Kerry. “Clearing the Conceptual Haze: Restorative Justice Concepts in Transitional Settings.” In Restorative Justice in Transitional Settings, ed. Kerry Clamp, 1–21. London: Taylor & Francis, 2006. Combs, Nancy. “Seeking Inconsistency: Advancing Pluralism in International Criminal Sentencing.” Yale Journal of International Law 41 (2015): 387 Dickinson, Laura. “The Relationship between Hybrid Courts and International Courts: The Case of Kosovo.” New England Law Review 37 (2003): 1059 Dickinson, Laura. “Using Legal Process to Fight Terrorism: Detentions, Military Commissions, International Tribunals, and the Rule of Law.” Southern California Law Review 75 (2002): 1407 “The Promise of Hybrid Courts.” American Journal of International Law 97 (2003): 295. du Plessis, Max. The International Criminal Court and its Work in Africa: Confronting Myths. ISS Paper 173, November 2008. Duthie, Roger, ed. Transitional Justice and Displacement. London: Social Science Research Council, 2012. Eslava, Luis, Michael Fakhri, and Vasuki Nesiah, eds. Bandung, Global History and International Law: Critical Pasts and Pending Futures. Cambridge: Cambridge University Press, 2015. Goodman, Ryan and Derek Jinks, Socializing States: Promoting Human Rights Through International Law. Oxford: Oxford University Press, 2013. Haider, Huma. “Transnational Transitional Justice and Reconciliation: The Participation of Conflict-Generated Diasporas in Addressing the Legacies of Mass Violence.” Journal of Refugee Studies 27 (2014): 207.

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Higonnet, Etelle R. “Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform.” Arizona Journal of Internatinal and Comparative Law 23 (2005): 347. Hillebrecht, Courtney. Domestic Politics and International Human Rights Tribunals: The Problem of Compliance. Cambridge: Cambridge University Press, 2014. Hovil, Lucy and Joanna Quinn. “Peace First, Justice Later: Traditional Justice in Northern Uganda.” Refugee Law Project Working Paper No. 17. Kampala: Refugee Law Project, 2005. www.refugeelawproject.org/working_papers .php. Huneeus, Alexandra. “Human Rights between Jurisprudence and Social Science.” Leiden Journal of International Law 28 (2015): 255. “Hybrid Courts.” Project on International Courts and Tribunals. Accessed 20 July 2018, http://www.pict-pcti.org/courts/hybrid.html. International Crisis Group. Northern Uganda: The Road to Peace, With or Without Kony. Africa Report No. 146. 10 December 2008. International Justice Resource Center. “African Union Approved Immunity for Government Officials in Ammendment to African Court of Justice and Human Rights’ Statute.” 2 July 2014. http://www.ijrcenter.org/2014/ 07/02/african-union-approves-immunity-for-heads-of-state-in-amend ment-to-african-court-of-justice-and-human-rights-statute/. Johnstone, Gerry. Restorative Justice: Ideas, Values, Debates. New York: Routledge, 2013. Kasande, Sarah, Chris Gitari, and Mohamed Suma. “AU Strategy for Collective Withdrawal from the ICC a Non-Starter.” ICTJ. 16 February 2017. https:// www.ictj.org/news/au-withdrawal-icc-non-starter. Katzenstein, Suzanne. “Hybrid Tribunals: Searching for Justice in East Timor.” Harvard Human Rights Journals 16 (2003): 245. Khosla, M. “The TWAIL Discourse: The Emergence of a New Phase.” International Community Law Review 9 (2007): 291. Kimani, Mary. “ICC and Africa: Pursuit of Justice or Western Plot? International Indictments Stir Angry Debate in Africa.” Africa Renewal 23 (2009): 3. Kindersley, Nicki and Oystein Rolandsen. “Briefing: Prospects for Peace and the UN Regional Protection Force in South Sudan.” African Affairs (2016), https://doi.org/10.1093/afraf/adw067. Labuda, Patryk I. “The Hybrid Court for South Sudan: Looking for a Way Forward (Part 2).” Justice in Conflict, 28 February 2017, https://justiceincon flict.org/2017/02/28/the-hybrid-court-for-south-sudan-looking-for-a-wayforward-part-2/ Laliberte´, Nicole. “Geographies of Human Rights: Mapping Responsibility.” Geography Compass 9 (2015): 57.

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Langer, Ma´ximo. “Universal Jurisdiction is Not Disappearing: The Shift from ‘Global Enforcer’ to ‘No Safe Haven’ Universal Jurisdiction.” Journal of International Criminal Justice 13 (2015): 245. Lipscomb, Rosanna. “Restructuring the ICC Framework to Advance Transitional Justice: A Search for a Permanent Solution in Sudan.” Columbia Law Review (2006): 182. Maguire, Amy. “Contemporary Anti-Colonial Self-Determination Claims and the Decolonisation of International Law.” Griffith Law Review 22 (2013): 238 Maguire, Amy and Jeffrey Mcgee. “A Universal Human Right to Shape Responses to a Global Problem? The Role of Self-Determination in Guiding the International Legal Response to Climate Change.” Review of European Comparative and International Environmel Law 26 (2017). McCready, Philio. Can Restorative Practices Work in a Loyalist Area?: A Case Study on Restorative Responses to Community Conflict of a Loyalist Area in South Belfast. PhD dissertation. Ulster University, 2016. Mettraux, G. International Crimes and the Ad Hoc Tribunals. Oxford: Oxford University Press, 2005. Mickelson, K. “Taking Stock of TWAIL Histories.” International Community Law Review 10 (2008): 355 Mills, Kurt and David Jason Karp, eds. Human Rights Protection in Global Politics: Responsibilities of States and Non-State Actors. London: Palgrave Macmillan, 2015. Mutua, Makau and Antony Anghie, “What Is TWAIL?” Proceedings of the Annual Meeting, The American Society of International Law, 2000. Office for Democratic Institutions and Human Rights. “Opinion on the Draft Act of the Crime of Enforced Disappearance in Tunisia.” 6 May 2016. http://www.osce.org/odihr/elections/tunisia/247346?download=true Okafor, Obiora Chinedu. “Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?” International Community Law Review 10 (2008): 371. “Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective.” Osgoode Hall Law Journal 43 (2005). Okello, Moses Chrispus. “The False Polarisation of Peace and Justice in Uganda.” Expert paper presented as Justice in Situations of Ongoing Conflict Conference, International Center for Transitional Justice, Nuremberg, Germany. June 2007. www.peace-justice-conference.info/ download/WS-2-Expert%20Paper-Okello.pdf. Pinia, Sylvia and Frederike Bubenzer, Gender Justice and Reconciliation in Uganda. Cape Town: Institute for Justice and Reconciliation, 2011. Prashad, Vijay. The Poorer Nations: A Possible History of the Global South. London: Verso, 2012.

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Risse, Thomas, Stephen C. Ropp, and Kathryn Sikkink, eds. The Persistent Power of Human Rights: From Commitment to Compliance. Cambridge: Cambridge University Press, 2013. Roht-Arriaza, Naomi, and Javier Mariezcurrena, ed. Transitional Justice in the Twenty-First Century: Beyond Truth Versus Justice. Cambridge: Cambridge University Press, 2006. Romano, Cesare, Andre´ Nollkaemper, and Jann K. Kleffner, eds. Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo, and Cambodia. Oxford: Oxford University Press, 2004. Schomerus, Mareike. Small Arms Survey. The Lord’s Resistance Army in Sudan: A History and Overview. Geneva: Graduate Institute of International Studies, 2007. Secretary-General. The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies. U.N. Doc. S/2004/616. 23 August, 2004. Tejan-Cole, Abdul. “The Complementary and Conflicting Relationship Between the Special Court for Sierra Leone and the Truth and Reconciliation Commission.” Yale Human Rights and Development Law Journal 6 (2003). Stewart, Leigh. “International Justice in Africa: Defining Authority and Localizing the Global.” iCourts Working Paper Series 86 (2017). http://dx .doi.org/10.2139/ssrn.2917110. Turner, Jenia I. “Transnational Networks and International Criminal Justice.” Michigan Law Review 105 (2007): 985. Van Ness, Daniel W. and Karen Heetderks Strong. Restoring Justice: An Introduction to Restorative Justice. New York: Routledge, 2014. Vilmer, Jean-Baptiste Jeangebe. “The African Union and the International Criminal Court: Counteracting the Crisis.” International Affairs 92 (2016): 1319. Websolve. “The ICC, Sudan, and the Crisis of Human Rights.” African Arguments Online. 5 March 2009. http://africanarguments.org/2009/03/the-icc-sudanand-the-crisis-of-human-rights/ Williams, Sarah. “The Extraordinary African Chambers in the Senegalise Courts: An African Solution to an African Problem?” Journal of International Criminology 15 (2013): 1139 Zammit, Nasser. Human Rights and Responsibility. Saint Denis, France: Connaissances et Savoirs, 2012.

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par t i i

law, justice, and hope

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4 Transitional Justice, Displacement, and the Rights of the Young Retributive and Restorative Approaches in the Aftermath of the Rwandan Genocide Marisa O. Ensor

introduction Balancing transitional societies’ need for justice against the best interests of children and youth is a difficult endeavor. The displacement of young people who, unaccompanied or with their families, are forced by conflict and human rights violations to flee their homes and communities represents an additional challenge in societies seeking to transition toward a more inclusive, sustainable peace. Transitional justice mechanisms, from special courts and tribunals to truth and reconciliation processes, must contend with the intricacies of respecting young people’s rights as they are affected by and participate in legal and nonjudicial proceedings. Specifically, effective efforts to combat impunity require an equitable and well-functioning juvenile justice system that also promotes rehabilitation and social reintegration. To this end, international standards must be reconciled with local cultural values, giving due weight to youngsters’ views. It is also worth bearing in mind that “members of the younger generations, especially those who grew up in exile – i.e., refugee camps managed by international aid organizations – and were exposed to alternative understandings of justice and reconciliation” do not always share the priorities of their older counterparts.1 However, rarely are these differences noted and taken into account in earnest within the overall context of post-conflict measures. This chapter examines the case of displaced young adults and children during and in

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Marisa O. Ensor, “Drinking the Bitter Roots: Gendered Youth, Transitional Justice, and Reconciliation across the South Sudan–Uganda,” African Conflict and Peacebuilding Review 3, no. 2 (Fall 2013): 179.

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the aftermath of genocidal violence in Rwanda as an example of the gaps and silences that exist in the area of transitional justice practices. The year 2018 will mark the twenty-fifth anniversary of the 1994 Rwandan genocide, in which as much as 20 percent of the population were massacred. As the world’s eyes turn to Africa’s Great Lakes region once again, we should build on the lessons learned during a quarter of a century of seeking to deliver justice for those affected by gross human rights violations and mass displacement. Systematic engagement with displaced young people – or adults, for that matter – has often not been undertaken by transitional justice practitioners, advocates, or INGOs. Refugees and internally displaced persons are “typically sidelined during reparations negotiations, and it is not surprising, therefore, that their concerns have so often been overlooked.”2 The following analysis of transitional justice processes in Rwanda, a country still grappling with the legacy of the 1994 genocide, offers valuable insights concerning young people’s experiences as both objects of and actors in a range of transitional justice mechanisms whose implementation was complicated by the mass population displacement. Furthermore, as has come to be the norm in conflicts in Africa and elsewhere, young people in Rwanda became not only targets but also perpetrators of the violence, as active members of the army and the Interahamwe (a Hutu paramilitary organization whose name means “those who fight together” in the local Kinyarwanda language), or as part of the general mobilization of the civilian population. As such, the Rwandan genocide had profound consequences that affected every aspect of the lives of the country’s young population – whether as survivors or perpetrators. The wide range of measures implemented in the aftermath of the genocide favored either retributive or restorative approaches, and these have been guided by a combination of international and customary notions of law and justice. The successes and failures of these measures notwithstanding, the legacy of the genocide continues to define young people’s relationship to all other stakeholders – their surviving relatives, friends, former classmates and teachers, each other, the wider community, the government, and the outside world. “The shadow of the genocide [remains] a tangible and painful part of their everyday life.”3 In this regard, it is essential to include the dimension of young people’s experiences in the context of the transitional justice and forced migration nexus as it is applied to the case of Rwanda. 2

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Megan Bradley, “Redressing Refugees: The Emergence of International Norms on Reparations for Returnees,” Paper prepared for the Fiftieth International Studies Association Annual Conference, New York, NY, February 15–18, 2009: 4. African Rights Organization, A Wounded Generation: The Children who Survived Rwanda’s Genocide (Kigali, Rwanda: African Rights, 2006), 3.

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Those who planned and executed the 1994 Rwandan genocide violated youngsters’ rights on a massive scale, raping, torturing, and slaughtering young children and adolescents along with adults in countless massacres across the country. UNICEF estimates that 300,000 of the victims of genocidal violence in Rwanda were children. Moreover, approximately 95,000 children were orphaned as a result of the genocide.4 While age-disaggregated figures are not available for the displaced population, an estimated 500,000 Rwandans of all ages fled east into Tanzania in April 1994. In only two days, 28 and 29 April of that year, 250,000 people crossed the bridge at Rusumo Falls into Ngara, Tanzania, in what the United Nations High Commissioner for Refugees (UNHCR) agency called “the largest and fastest refugee exodus in modern times.”5 Throughout May 1994, a further 200,000 people from the province of Butare, Kibungo, and Kigali-Rural had fled south into Burundi. Of those, many were young adults or children who survived the mass atrocities. Based on field research and ethno-historical and legal analysis, conducted in Rwanda and Burundi in 2012 and 2016, this chapter thus analyzes the role of displaced young people in Rwanda’s ongoing transitional justice process from a critical human rights perspective. In the following pages, I discuss both the accomplishments and the limitations of the various mechanisms implemented since the 1994 genocide, with a focus on the link between displacement and child- and youth-related justice processes. After outlining the conceptual framework that guided this study, I briefly attend to the events of 1994 and their aftermath. I then examine Rwanda’s legacy of displacement and human rights violations vis-a`-vis the treatment of children and youth. I discuss both retributive and restorative approaches to justice implemented in post-genocide Rwanda in an effort to promote accountability and to facilitate its transition to peace and reconciliation. Lastly, I offer some concluding thoughts, arguing for a more nuanced approach to post-conflict justice, mindful of the differing ways in which these retributive and restorative approaches impact female and male children and adolescents in transitional societies. It is my contention that on the twenty-fifth anniversary of one of the most violent mass atrocities in recent history, an examination of young people’s involvement in transitional justice in Rwanda highlights the conditions and future possibilities in similarly young, conflict-prone, and displacement-affected African nations and, by qualified extension, other transitional societies elsewhere.

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UNICEF, Rwanda: Ten Years After the Genocide, updated September 4, 2012, www.unicef.org /infobycountry/rwanda_genocide.html Ray Wilkinson, “Crisis in the Great Lakes, Cover Story: Heart of Darkness,” Refugees Magazine 110 (Geneva: UNHCR, 1997), www.unhcr.org/3b6925384.html

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conceptual framework: the transitional justice and displacement nexus According to the standardized UN definition, transitional justice refers to “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.”6 In this context, both backward- and forward-looking initiatives are to be implemented, including “responses to confront the wrongdoings of repressive predecessor regimes,”7 post-conflict strategies that focus on the “rebuilding of the socioeconomic framework of the society,”8 and “reconstruction of the enabling conditions for a functioning peacetime society in the economy and society.” In this larger context, given their demographic preponderance and the important role they often play as both victims and perpetrators of violence, the views of young people deserve special consideration. Of particular relevance are the Ten Guiding Principles of the UN, which are included in the 2010 Guidance Notes on Transitional Justice.9 These notes establish the need to carefully consider the age-differentiated dimensions of post-conflict justice, including efforts to “support a child-sensitive approach to transitional justice processes and mechanisms” (Principle 5).10 Forced displacement and human and child rights violations are integrally linked. Transitional justice measures thus have ample reason to respond to displacement of young people and children11 and strive to attend to the needs of the younger generations. Furthermore, displacement often constitutes a serious human rights violation in itself, whether or not it is the result of intentional policies. The right not to be arbitrarily displaced has been unambiguously established12 by a number of international and regional human rights instruments. According, for instance, to the statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY)13 and

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UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Document S/2004/616, 2004, 4. Ruti G. Teitel, “Transitional Justice Genealogy,” Harvard Human Rights Journal 16 (2003): 69. World Bank, Post-Conflict Reconstruction: The Role of the World Bank (Washington, DC: World Bank, April 1998). UN Secretary-General, Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice (New York: United Nations, March 2010). Ensor, “Drinking the Bitter Roots,” 172. Roger Duthie, “Transitional Justice and Displacement,” International Journal of Transitional Justice 5 (2011): 249. Erin Mooney, “The Concept of Internal Displacement and the Case for Internally Displaced Persons as a Category of Concern,” Refugee Law Quarterly 24, no. 3 (2005): 15. ICTY Statute, Article 5(d)(1); ICC Statute, Article 7(1)(d); Geneva Convention IV, Article 147.

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the International Criminal Court (ICC) under Article 8(2)(e)(vii)14, deportation or forcible transfer constitutes a crime against humanity. Unlawful deportation or transfer of a civilian also constitutes a grave breach of the Geneva Conventions, and the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa requires the criminalization of acts of arbitrary displacement.15 Practitioners, policy-makers, and researchers working in both transitional justice and displacement-related fields have been considering the relationship between their respective areas of work for over a decade. In December 2009, for example, the United Nations 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.16 In practice, however, a silo mentality has prevailed, and these two areas of practice have rarely been adequately integrated. The historical focus of transitional justice practices on civil and political violations has often led to a limited engagement with displacement, compounded by the practical challenges of addressing issues of access, consultation, and participation. The issue is further complicated with reference to displaced young people and their adult counterparts in coordination with other actors and with reference to different mandates of individual programs and institutions. Moreover, all too often domestic justice and reconciliation measures have limited reach across borders to address supranational and regional issues, making it nearly impossible to include displaced populations in transitional justice processes. As argued aptly by Bronwyn Harris: 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.17

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Rome Statute for the International Criminal Court, U.N. Doc. A/Conf. 183/9 (1998). Andrew Solomon, “An African Solution to Internal Displacement: AU Leaders Agree to Landmark Convention,” Brookings-Bern Project on Internal Displacement Briefing, October 23, 2009. United Nations, “Framework on Durable Solutions for Internally Displaced Persons,” UN Doc. A/HRC/13/21/ Add.4 (December 29, 2009). 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.

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Furthermore, if and when young refugees are repatriated, their identities form through the experience of displacement, often unaffected by transitional justice efforts in their (or their parents’) home country. This discrepancy could lead to the establishment of new social and political fault lines. It is also worth noting that the implementation of transitional justice mechanisms could sometimes 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 returning.18 Hence, we could witness the emergence of a diaspora that is intrinsically cut off from transitional justice schemes, including the younger generations among them. As a case in point, some of the Hutu refugees who had fled Rwanda in 1994 were reluctant to return for fear that local Gacaca courts – discussed later in the chapter – would find them guilty by association with perpetrators of genocide.19 Transitional justice processes in Rwanda were attempted in a complex context of mass displacement. The violence experienced during the genocide tore the country’s social fabric. Subsequent efforts to eradicate “genocide ideology”20 sought to suppress all utterances that were not in accordance with the official public transcript, compelling a high degree of self-censorship among the local population. While a measure of reconciliation has been achieved, open discussion is still hampered by the prevailing climate of distrust.

grappling with history: the legacy of the rwandan genocide in its aftermath An exhaustive discussion of the complex sequence of events that took place during the 1994 genocide is beyond the scope of this chapter. A brief outline of the most salient elements of this episode in Rwanda’s history does nevertheless help frame the circumstances under which the nexus between transitional justice and forced displacement manifested itself in this African country.

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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), 181–212. 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, May 7–9, 2008; International Refugee Rights Initiative, A Dangerous Impasse: Rwandan Refugees in Uganda (New York and Kampala: IRRI, June 2010). Republic of Rwanda, Genocide Ideology and Strategies for its Eradication (Kigali: Government of Rwanda, 2007).

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The common account of the Rwandan genocide always starts with the citation of following train of events: On April 6, 1994, President Habyarimana of Rwanda and President Ntaryamira of Burundi were killed when their plane was shot down as they returned to Kigali from talks in Arusha.21 Within an hour of the plane crash, the presidential guard, together with members of the Rwandan armed forces (FAR) and Hutu militia groups known as the Interahamwe (“Those Who Attack Together”) and Impuzamugambi (“Those Who Have the Same Goal”), set up roadblocks and barricades and began slaughtering Rwandan Tutsis and moderate Hutus with impunity. Among the first victims of the genocide was the moderate Hutu prime minister Agathe Uwilingiyimana, killed on April 7. The initial phase of the mass violence created a political vacuum that was hastily occupied, on April 9, by an interim government of extremist Hutu Power leaders from the military high command. The mass killings in Rwanda quickly spread from Kigali to the rest of the country, with some 800,000 people slaughtered over the next three months.22 As is well-known, throughout this period of mass slaughters local officials and government-sponsored radio stations called on ordinary Rwandan civilians to murder their neighbors. Meanwhile, the Rwandan Patriotic Front (RPF)23 resumed fighting, and civil war raged alongside the genocide. By early July, RPF forces had gained control over most of the country, including the capital, Kigali. In response, more than two million people, nearly all Hutus, fled Rwanda, crowding into refugee camps in the Congo (then called Zaire) and other neighboring countries. After its victory, the RPF established a coalition government similar to that agreed upon at Arusha, with Pasteur Bizimungu, a Hutu, as president and Paul Kagame, a Tutsi, as vice president and defense minister. Habyarimana’s National Revolutionary Movement for Development (NRMD) party, which had played a key role in organizing the genocide, was outlawed. The new constitution adopted in 2003 eliminated all references to ethnicity in Rwanda. Kagame was subsequently elected to a tenyear term as Rwanda’s president, and the country’s first-ever legislative elections took place. The RPF has been in power since it halted the 1994 genocide. 21

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The Arusha Peace Accords, signed in August 1993 between the Tutsi-dominated Rwandan Patriotic Front and Habyarimana’s Hutu regime, provided for a transitional government in Rwanda and eventual legislative elections. Bert Ingelaere, “The Gacaca Courts in Rwanda,” in Traditional Justice and Reconciliation Mechanisms after Violent Conflict: Learning from African Experiences, ed. L. Huyse (Stockholm: International Idea), 25. The RPF and its armed wing, the Rwandan Patriotic Army (RPA), were formed in Uganda by ethnic Tutsi exiled in Uganda after they, or their parents, fled Rwanda following massacres of Tutsi by Hutu in 1959 and 1963. Their stated aim was to assure the right to return of refugees.

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Political space, civil society, and the media remain tightly controlled on the grounds; this is necessary to prevent renewed violence.24 Going back to the events of genocidal violence, on April 29, 1994, the world witnessed the largest refugee exodus in post–World War II history when about 200,000 refugees crossed the border into Tanzania within forty-eight hours. On July 4, 1994, as the RPF took control of Kigali, defeated government officials used radio broadcasts to invoke hysteria about the likely retribution for crimes committed and incited the local population to flee. Among the refugee population were many of those who were responsible for the genocide. However, there were also others who did not take part in acts of violence, including young adults and children. In less than a week, more than 700,000 people crossed the border into Zaire (Congo), creating a humanitarian disaster on an unprecedented scale. An estimated 20,000 Hutu soldiers and some 50,000 militia joined the movement, convincing the population that they would be killed if they remained in Rwanda.25 By the end of August 1994, the UN refugee agency (UNHCR) estimated that there were 2.1 million Rwandan refugees in neighboring countries, located in thirty-five camps. International attention was then focused on the refugee crisis, rather than on the genocide that was meanwhile continuing in neighboring Rwanda. Joe¨l Boutroue, a senior UNHCR staff member in the refugee camps, wrote, “Discussions with refugee leaders . . . showed that exile was the continuation of war by other means.”26 About 140,000 refugees returned, mostly on their own, in the first three months after the original exodus. However, the UNHCR was forced to halt its efforts to repatriate refugees after both their staff and the refugees were threatened by Interahamwe under the orders of the exiled leadership. By September 1994, rumors of violence by the RPF within Rwanda, combined with tightened control by the Hutu leadership of the camps, had drastically reduced the rate of return and eventually stopped it altogether by early 1995. In January 1996, Burundi closed the two camps within its borders and refugees were notified that they should return to Rwanda. The refugees instead began to trickle across into Tanzania, until Tanzania closed its Burundian

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Jesko Johannsen, “Fighting for Recognition: Political Opposition in Rwanda,” Deutsche Welle: DW.com, September 9, 2015, www.dw.com/en/fighting-for-recognition-politicalopposition-in-rwanda/a-18703252. Me´decins Sans Frontie`res, “Deadlock in the Rwandan Refugee Crisis: Repatriation Virtually at a Standstill,” Me´decins Sans Frontie`res / Doctors Without Borders, July 19, 1995, www.doct orswithoutborders.org/what-we-do/news-stories/research/deadlock-rwandan-refugee-crisis-rep atriation-virtually-standstill Quoted in Gerard Prunier, Africa’s World War (Oxford: Oxford University Press, 2008), 24.

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border in April after the number of refugees reached 550,000. Burundi, then in the midst of a civil war, had been stressed by the demands of the refugees but was also influenced by a desire not to antagonize the new government of its neighbor to the north.27

transitional justice and the role of displaced children and youth in rwanda Given the background of both mass violence and mass displacement, the extremely high levels violence that young people were exposed to or engaged in remains a grim and difficult challenge for Rwandan society. A UNICEF study found that nearly 96 percent of children in Rwanda had witnessed the massacres, while 80 percent had lost at least one family member. Many of the leading perpetrators – both men and women – committed atrocities alongside their own children, especially their sons, who often acted as their drivers or as heads of the militia loyal to their parents. Other parents took their children along to intimidate, rob, and kill those who had gathered in churches, schools, and hospitals in a futile attempt to escape the violence.28 In terms of direct experience of trauma, rape was used widely as a weapon of genocide. Girls as young as six were gang-raped and kept as sexual slaves, both in Rwanda and in the refugee camps set up in neighboring countries; many were raped alongside their mothers or sisters, often by the men who had just murdered their fathers, brothers, and other relatives. To compound the physical violence and the psychological shock, some of the young girls became pregnant, which subsequently alienated them from their surviving relatives. Many more have endured illness or caught sexually transmitted diseases, including HIV/AIDS.29 Young students were painfully aware that some of their teachers – whether in exile, detained in Rwanda, or at liberty – were active participants in the genocide. Perhaps of all the professions, teachers – who wield considerable authority – distinguished themselves in the genocide, particularly in the countryside, killing their own students, among others, together with the parents of the children they taught. Some children and young people were absent from educational institutions following accusations that they played an active role in the genocide. They spent an important part of their formative

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Prunier, Africa’s World War. African Rights Organization, A Wounded Generation, 19. African Rights Organization, Rwanda, Broken Bodies, Torn Spirits: Living with Genocide, Rape and HIV/AIDS (Kigali, Rwanda: African Rights, April, 2004).

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years behind bars, on charges of genocide. On the other hand, many others who have charges to answer remained at liberty, in schools, sitting next to survivors of the genocide.30 Rwanda’s youngsters were among the most vulnerable to the poverty and exploitation that followed the genocide. The massacres left several hundred thousand children either orphaned or separated from their parents, rendering the country home to one of the world’s largest proportions of child-headed households. Young people have continued to play a crucial and highly visible role during subsequent post-conflict and transitional phases. The age of criminal responsibility in Rwanda is fourteen years of age. Children who were younger than fourteen years old at the time of the genocide could therefore not be prosecuted – they were instead placed in rehabilitation centers. Rwanda was, nevertheless, the first country to try people for acts of genocide committed while they were minors. Over five thousand youngsters were arrested, charged with crimes of genocide they allegedly committed before they reached the age of eighteen. Minors have also been disproportionally affected by the broad campaign against “divisionism” and “genocide ideology” conducted by the Rwandan government since 2003.

alternatives: competing approaches to justice? As I noted in an earlier study of young people’s role in post-conflict justice in Uganda and South Sudan, “[p]articipation by children in legal proceedings fulfills their right to be heard in judicial and administrative processes affecting them, as established by Article 12 of the Convention on the Right of the Child.”31 In this regard, criminal prosecutions and other retributive approaches to justice, which narrowly focus on advancing international jurisprudence and punishing perpetrators, have been criticized for failing to address the complex needs of conflict-affected individuals and societies, especially minors.32 In post-genocide Rwanda, retributive approaches to justice were exemplified by several mechanisms, including the International Tribunal and the adoption of the so-called Genocide Ideology laws. The United Nations 30 31 32

African Rights Organization, A Wounded Generation, 19. Ensor, “Drinking the Bitter Roots,” 177. Helena Cobban, Amnesty after Atrocity? Healing Nations after Genocide and War Crimes (St. Paul, MN: Paradigm, 2007); Laurel E. Fletcher and Harvey M. Weinstein, “Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation,” Human Rights Quarterly 24 (2002): 573–639; Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War (Cambridge, UK: Polity/Blackwell, 2002).

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Security Council established the International Criminal Tribunal for Rwanda (ICTR, or Tribunal) to “prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and neighbouring States, between 1 January 1994 and 31 December 1994.” The Tribunal was located in Arusha, Tanzania, and had offices in Kigali, Rwanda. Its Appeals Chamber was located in The Hague, Netherlands. As of writing, since it opened in 1995, the ICTR has indicted ninety-three people, sentenced sixty-one, and acquitted fourteen, contributing in an unprecedented way to establishing the truth on the organization of the genocide in Rwanda and providing justice to victims despite some of the shortcomings of the court. Those indicted include highranking military and government officials, politicians, and businessmen, as well as religious, militia, and media leaders.33 The ICTR was the first international tribunal to deliver verdicts in relation to genocide, and the first to interpret the definition of genocide set forth in the 1948 Geneva Conventions. It was also the first international tribunal to define rape in international criminal law and to recognize rape as a means of perpetrating genocide. Another landmark was reached in the “Media Case,”34 where the ICTR became the first international tribunal to hold members of the media responsible for broadcasts intended to inflame the public to commit acts of genocide.35 The Tribunal delivered its final judgment on appeal in the case against former minister of family and women’s development Pauline Nyiramasuhuko and five co-accused on December 14, 2015. Nyiramasuhuko was the first woman convicted of genocide by an international court. The Appeals Chamber upheld convictions for most of the charges against Nyiramasuhuko – who had been found guilty of rape, among other crimes – her son Arse`ne Ntahobali, and four local government officials. The formal closure of the International Criminal Tribunal for Rwanda took place on December 31, 2015.36 Since the first trial started in January 1997, the Tribunal held 5,800 days of proceedings and heard the “powerful accounts of more than 3,000 witnesses 33

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Human Rights Watch, “Rwanda: International Tribunal Closing Its Doors,” hrw.org, December 23, 2015, www.hrw.org/news/2015/12/23/rwanda-international-tribunal-closing-its-doors The Prosecutor v. Nahimana, Barayagwiza and Ngeze, popularly dubbed the Mediacase, involved the prosecution of three individuals alleged to have been the masterminds behind a media campaign to desensitize the Hutu population and to incite them to murder the Tutsi population in Rwanda in 1994. See Sophia Kagan, “The ‘Media Case’ Before the Rwanda Tribunal: The Nahimana et al. Appeal Judgement,’’ The Hague Justice Portal, April 24, 2008, www.haguejusticeportal.net/index.php?id=9166. Kagan, “The ‘Media Case.’” Human Rights Watch, International Tribunal Closing its Doors.

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who bravely recounted some of the most traumatic events imaginable during ICTR trials,” as ICTR president Judge Vagn Joensen told the UN Security Council in December 2015.37 The ICTR played a pioneering role in the establishment of a credible international criminal justice system, producing a substantial body of jurisprudence on genocide, crimes against humanity, and war crimes, as well as forms of individual and superior responsibility. The Tribunal also served as a precedent for the creation of the International Criminal Court, whose founding treaty, the Rome Statute, was adopted in 1998.38 Suffice to note that no minors were prosecuted by the Tribunal. While no international law framework explicitly proscribes the prosecution of children, international criminal law’s distancing itself from bringing children and minors to a trial setting left this option to national legislatures.39 In Rwanda, the adoption of the socalled Genocide Ideology Laws has indeed resulted in the prosecution and conviction of the majority of the minors implicated by the genocide, including children under twelve years of age.

“genocide ideology” and restorative justice “Genocide Ideology” became a crime in Rwanda in 2003, with that year’s ratification of the new Rwandan constitution. The new Rwandan constitution specifically prohibits the formation of political organizations based on “race, ethnic group, tribe, clan, region, sex, religion or any other division which may give rise to discrimination.”40 Meanwhile, the actual content of “Genocide Ideology” was not defined by Rwandan law until October 2008.41 The infraction came to be defined in articles 2 and 3 of Law No 18/2008 relating to the punishment of the crime of genocide ideology.42 This statute calls for

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United Nations, “Background Information on the Justice and Reconciliation Process in Rwanda,” Outreach Programme on the Rwandan Genocide and the United Nations, March 2014, www.un.org/ en/preventgenocide/rwanda/about/bgjustice.shtml Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS3. Fanny Leveau, “Liability of Child Soldiers Under International Criminal Law,” Osgoode Hall Review of Law and Policy 4, no. 1 (2013): 36–66. A copy of the Rwandan constitution is available on the ILO’s website, at www.ilo.org/dyn/ natlex/docs/ELECTRONIC/64236/90478/F238686952/RWA64236.pdf. Law No 18/2008 of 23/07/2008 Relating to the Punishment of the Crime of Genocide Ideology, promulgated October 2008. Article 2: Definition of “genocide ideology” The genocide ideology is an aggregate of thoughts characterized by conduct, speeches, documents and other acts aiming at exterminating or inciting others to exterminate people

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punishment of “[a]ny person who disseminates genocide ideology in public through documents, speeches, pictures, media or any other means.”43 Civil and human rights groups have argued that this constitutional clause and other similar laws enacted by the country’s parliament have granted the government unprecedented powers to stunt political development.44 Furthermore, Rwanda’s laws on genocide ideology are replete with ambiguity. Almost all Rwandans interviewed for this study were unclear what constitutes genocide ideology. Even those with specialist knowledge of Rwandan law, including lawyers and human rights workers, were unable to precisely define the term “genocide ideology” and what conduct is considered criminal under this law. Of particular concern is the application of this law to minors, including very young children. Indeed, children under twelve years found guilty of genocide ideology can be sentenced to up to one year in a rehabilitation center. Those aged twelve to eighteen are sentenced to half the adult penalty, up to 12.5 years in prison and a fine of 500,000 Rwandan francs. The sentence, in whole or part, could be served in a rehabilitation center, but this remains at the judge’s discretion. Parents, guardians, teachers, and headmasters of convicted children may be sentenced to fifteen to twenty-five years in prison if it is proven that they had inculcated the child with genocide ideology. As argued by a defense lawyer for a sixteen-year-old student accused of genocide ideology, youngsters who have not lived through the genocide do not have “an historical experience of genocide” and consequently could not have a “genocide ideology.”45 And yet this simple reality has not prevented children from being convicted. In effect, it is possible to posit that the Rwandan law on genocide ideology “[i]s largely basing (sic) on ethnic group, origin, nationality, region, color, physical appearance, sex, language, religion or political opinion, committed in normal periods or during war. Article 3: Characteristics of the crime of genocide ideology The crime of genocide ideology is characterized in any behaviour manifested by acts aimed at deshumanizing [sic] a person or a group of persons with the same characteristics in the following manner:

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(1) Threatening, intimidating, degrading through diffamatory [sic] speeches, documents or actions which aim at propounding wickedness or inciting hatred; (2) Marginalising, laughing at one’s misfortune, defaming, mocking, boasting, despising, degrading createing [sic] confusion aiming at negating the genocide which occurred, stiring [sic] up ill feelings, taking revenge, altering testimony or evidence for the genocide which occurred; (3) Killing, planning to kill or attempting to kill someone for purposes of furthering genocide ideology. Law No. 18/2008. Human Rights Watch “Rwanda: Human Rights Developments,” Human Rights Watch World Report 2003, www.hrw.org/legacy/wr2k3/africa9.html Amnesty International, Safer to Be Silent: The Chilling Effects of Rwanda’s Laws on “Genocide Ideology” and “Sectarianism” (London: Amnesty International Publications, 2010).

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disconnected from the crime of genocide itself. It does not require that the perpetrator intend to assist or facilitate genocide, or be aware of any planned or actual acts of genocide.”46 Also problematic is the emerging pattern of displaced Rwandans being prosecuted on their return to the country under genocide ideology laws for statements made in exile or as part of asylum proceedings abroad, with charges, for the most part, being brought against the people of Hutu background.47 Prosecutions under a broad and ill-defined law run counter the Rwandan government’s stated aim of creating the conditions at home which will encourage Rwandans abroad, including refugees and asylum-seekers, to return to Rwanda voluntarily. Aware of the RPF’s roots as an insurgent group born out of exile, the government knows that returns are important for political stability. Such cases do little to assuage the fears of Rwandans abroad that they could return in safety. (Amnesty International 2010a: 23)48

A further area of concern is the uneasy relationship between genocide ideology and the traditional conflict resolution mechanism known as Gacaca, to be discussed later in the chapter. A case in point is the prosecution, under genocide ideology, of Ce´lestin Sindikubwabo. Sindikubwabo, a witness in a Gacaca trial held in the southern district of Nyakizu in October 2006, said that the defendant had fled to Burundi because he had seen RPF soldiers killing local people – a statement that challenged the tenet of the official “truth” about RPF war crimes. While the defendant was acquitted, Sindikubwabo was arrested several days later, brought to trial in March 2007, and sentenced to twenty years in prison for “gross minimization of the genocide.”49 The severity of genocide ideology prosecutions, compounded with the uncertainty about the contours of criminality under this law, has had the cumulative effect of silencing dissent in Rwandan society, potentially hampering the process of reconciliation and harming certain sectors of the society, such as the exiled youth, exponentially. In the years immediately following the genocide, retributive justice and reconciliation were seen as mutually exclusive objectives by the Rwandan 46

47 48 49

Human Rights Watch (2008) Law and Reality: Progress in Judicial Reform in Rwanda, July 2008, www.hrw.org/sites/default/files/reports/rwanda0708webwcover.pdf Amnesty International, Safer to be Silent, 22. Amnesty International, Safer to be Silent, 23. Court of Higher Instance, Huye, No. RP 0015/07/TGI/HYE RPGR 40832/S2/06/MR/KJ, Prosecutor versus Ce´lestin Sindikubwabo, 24/4/07; see Human Rights Watch, Law and Reality.

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government. Trials and tribunals seemed the only option to come to terms with the problems of the past. It was not until 1999 that the National Unity and Reconciliation Commission was established.50 Further efforts to advance the stated objective of reconstructing Rwandan identity while balancing justice, truth, peace, and security involved several peace-building initiatives that built upon customary, traditional practices. These include a program of peace education, known as Ingando or “solidarity camps,” which from 1999 to 2009 aimed to clarify Rwandan history and the origins of the division among the population; the Itorero leadership academy, established in 2007, which sought to promote Rwandan values and cultivate community leaders; and Umaganda, a program of mandatory community service that brings neighbors together once a month for cleaning, construction, or collaboration on other projects,51 in which children are often seen participating alongside their older relatives. Numerous seminars have also been offered focusing on training grassroots leaders, political party leaders, youth, and women in topics such as trauma counselling, conflict mitigation and resolution, and early warning systems. Additionally, a number of National Summits have taken place on topics related to justice, good governance, human rights, national security, and national history. The Commission has also conducted research and published several studies on the causes of conflicts in Rwanda and how to mitigate and resolve them.52 As stated by the UN Commission on Human Rights in a 2000 report on the human rights situation in Rwanda, “[a]fter five years of refusing to talk of reconciliation until justice is seen to be done, Rwandans now accept that reconciliation must be a national goal in its own right.”53 The Commission also stated that “[t]he objectives of accountability and reconciliation will find their most tangible embodiment for the ordinary Rwandan during the numerous Gacaca meetings in every local community.” The Gacaca Courts, established in 2001, are perhaps the best known of the restorative justice mechanisms implemented in post-genocide Rwanda. However, as will be seen, they were not without their own problems.

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United Nations, “Background Information.” Kerry Weber, Kerry (2014) “Shadowed by Tragedy: Rwanda Strives to Rise above a History of Horror,” America: The Jesuit Review, March 6, 2014, www.americamagazine.org/issue/sha dowed-tragedy United Nations, “Background Information.” United Nations Commission on Human Rights, Report on the Situation of Human Rights in Rwanda (New York: United Nations, February 25, 2000), 180.

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the gacaca courts The Gacaca courts (deriving their name from the Kinyarwanda word for “grass,” that is, the place where communities gather to resolve disputes) were based on a traditional conflict resolution mechanism that existed in Rwanda before colonial rule. Conflicts between families were settled by the Inyangamugayo – the (typically male) elders of the community – bringing together the parties in the dispute. During the colonial period, a Western-style legal system was introduced in Rwanda, although the Gacaca tradition kept its function as a customary conflict resolution mechanism at the local level. During independence, Gacaca gradually evolved toward an institution associated with state power as local authorities were also taking up the role of Inyangamugayo. Nevertheless, the conciliatory and informal character remained the cornerstone of the institution, since decisions were to a great extent not dictated by written state law. In 1999, a commission established by the (then) Rwandan president Pasteur Bizimungu proposed to modernize and formalize the “traditional” dispute resolution mechanism in order to facilitate deliverance of remedies for genocidal violence in the country. The reestablishment of community-based Gacaca courts in 2001 sought to initiate a more expeditious process in order to alleviate the massive backlog of genocide cases. Approximately 130,000 persons had been imprisoned for offences related to the genocide at that time. Given this enormous caseload, it would have taken an estimated hundred years to complete, if done, through the country’s traditional court system.54 Similar to the traditional Gacaca system, Inkiko Gacaca – the “new” Gacaca process – emphasized truth and reconciliation. In the Gacaca system, communities at the local level elected judges to hear the trials of genocide suspects accused of all crimes except the planning of the genocide. The courts gave lower sentences if the defendant was repentant and sought reconciliation with the community. While some of the perpetrators – those convicted of the most grievous crimes – were given prison terms, others agreed to a form of community service, such as building roads. Often, confessing prisoners returned home without further penalty or simply received community service orders. Between 2001 and 2012, more than 12,000 community-based courts tried more than 1.2 million cases throughout the country. The Gacaca trials also served to promote reconciliation by providing a means for victims to learn the truth about the death of their family members and relatives. On the other side, they gave perpetrators the opportunity to confess their crimes, show remorse, and 54

United Nations, “Background Information.”

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ask for forgiveness in front of their community.55 The key issue concerning the Gacaca in the present context is their treatment of young persons and children. Of the 120,000 people detained for involvement in the 1994 genocide, some 4,500 were reportedly below the age of eighteen at the time of the genocide.56 Rwanda’s president, Paul Kagame, ordered the release of all “genocide minors” in January 2003, but under implementing regulations only those who had spent the maximum possible sentence in pretrial detention were declared eligible to be freed.57 During the same month, the government released some 1,100 detainees who had been children back in 1994.58 A further 1,900 were released in July 2005, and seventy-eight more in March 2007. Article 74 of the Rwandan law on crimes against humanity and genocide stated that children under the age of fourteen at the time of the crime could not be held legally responsible for their actions or detained, and that children over fourteen but under eighteen should receive reduced penalties.59 The 2007 amendment to the Gacaca Law further reduced the maximum penalty for minors convicted of offences under categories 2, 3, and 4 of the law from twelve years and six months to five years and six months.60

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United Nations, “Background Information.” Commission on Human Rights, “Report of the Special Representative of the Commission on Human Rights on the Situation of Human Rights in Rwanda”, UN Doc. A/55/269, August 4, 2000. Parquet Ge´ne´ral, “Instruction Concernant l’Exe´cution du Communique´ Pre´sidential du 01 Janvier 2003 Venant de la Pre´sidence de la Re´publique qui Concerne la Libe´ration Provisoire des De´tenus des Diffe´rentes Categories,” January 9, 2003. Ministry of Justice, “Imbonerahamwe Igaragaza Ibisabwa n’intangazo Ryaturutse Muri Perezidansi ya Repubulika/Chart Showing What Was Required by the Communique´ of the President of the Republic” (Kigali: Author, March 2003). United Nations Committee on the Rights of the Child (UNCRC), “Second Periodic Report of Rwanda to the UN Committee on the Rights of the Child,” UN Doc. CRC/C/70/Add.22, October 8, 2003. Category 1 offenses included crimes related to the organization or incitement of genocide. Categories 2 and 3 defined “less serious” crimes including co-authorship of, or being an accomplice to, deliberate killing or the infliction of serious injuries with or without the intention to cause death. Category 4 refers to those who have committed such acts but have reached an amicable settlement with the victim or before the public authority. Article 51, Organic Law No. 10/2007, modifying and complementing Organic Law No. 16/2004 of June 19, 2004, establishing the organization, competence, and functioning of Gacaca courts charged with prosecuting and trying the perpetrators of the crime of genocide or crimes against humanity committed between October 1, 1990, and December 31, 1994; Organic Law No. 40/2000 of January 26, 2000, setting up “gacaca jurisdictions” and organizing prosecutions for offences constituting the crime of genocide or crimes against humanity, committed between October 1, 1990, and December 31, 1994.

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Still, the Gacaca courts raised several concerns both in terms of substance and in terms of process. The official endorsement of the creation of Gacaca jurisdiction resulted in the release of many children declared to have been below the age of criminal responsibility, while simultaneously worsening the plight of thousands of young people who remained in detention, providing a pretext for Rwandan officials to delay action on formal juvenile justice. It is true that the speed with which they processed almost two million cases was remarkable, as was the high level of participation among local communities across the country.61 And yet, the Gacaca tribunals did not meet international fair trial standards. Despite claims by the Rwandan authorities that their fairness could be ensured by the participation of the local population, many Gacaca hearings resulted in unfair trials and were marred by intimidation, corruption, and flawed decision-making.62 The Gacaca process also lacked sufficient safeguards to prevent false accusations, especially after 2004 when accusations were gathered by local administrative officials rather than at public Gacaca hearings. Those accused were unable to challenge charges before their case came to trial.63 As one Rwanda scholar explained, “Denunciation also became part of everyday life on Rwanda’s hills as neighbors settled local scores through genocide accusations (both true and false).”64 The Gacaca courts officially closed on May 4, 2012, leaving a very mixed legacy behind.

conclusion: transitional justice in a displaced world The connection between transitional justice and forced displacement has become an emerging, albeit insufficiently developed, area of expertise among scholars, practitioners, and policy-makers. Efforts to promote reconciliation, social trust, and peaceful intercommunity relations must indeed facilitate the local integration of returning refugees and internally displaced persons.65 As Megan Bradley notes, “[r]efugees are perhaps above all those with the least confidence in their state of origin.”66 Transitional 61

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Phil Clark, The Gacaca Courts: Post Genocide Justice and Reconciliation in Rwanda (Cambridge, UK: Cambridge University Press, 2010). Amnesty International, “Rwanda: Gacaca – Gambling with Justice,” Amnesty International press release, Index: AFR 47/003/2002, 19 June 2002. Human Rights Watch, Law and Reality. Lars Waldorf, “Revisiting ‘Hotel Rwanda’: Genocide Ideology, Reconciliation and Rescuers,” Journal of Genocide Research 11, no. 1 (March 2009): 107. Marisa O. Ensor, “Contemporary Perspectives on Conflict Transformation,” African Conflict and Peacebuilding Review 3, no. 2 (Fall 2013): 14 Bradley, “Redressing Refugees,” 7.

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justice measures may pave the way for their sustainable return and reintegration in different ways. Prosecuting those whose abuses forced citizens into exile can also be a “significant expression of state responsibility” and “may serve to reassure returnees that the state has reformed.”67 Prosecutions may also encourage return by removing known perpetrators from security institutions or local communities, thereby increasing returnees’ sense of safety. However, increasing numbers of commentators have begun to focus on the challenging tensions that remain between these approaches.68 For instance, a report by Me´decins Sans Frontie`res cautions that while both humanitarian assistance and judicial action are “useful and legitimate,” these endeavors are “largely incompatible and governed by different motivations and modes of operation.”69 As forced migration experts have already pointed out, “the development of more comprehensive and cohesive strategies to address forced migration in its complexity” is needed.70 Coordination and cooperation between transitional justice practitioners and those working more directly on displacement may help transitional justice measures to engage with the issue and with displaced persons more directly. As this chapter illustrated, Rwanda’s present situation is, to a large extent, the result of the country’s as-yet-incomplete efforts to come to terms with a legacy of gross human rights violations, massive displacement, and subsequent efforts to achieve peace, accountability, and reconciliation through a wide range of transitional justice mechanisms. Children and youth have played a salient role in every aspect of this process, and remain key stakeholders in their country’s sociopolitical life. A number of key child- and youth-friendly developments were implemented in the post-genocide period, especially at the institutional and legislative levels. The National Youth Council was created as early as 2003, governed by the law of 24/2003 of 14/8/2003. The Government of Rwanda passed Law N. 54/2011, relating to the rights and protection of the child, which is also considered a major achievement for the government in protecting and developing youth’s rights.71 Finally, the government established a National

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Bradley, “Redressing Refugees,” 16. See Nergis Canefe’s introduction to this book. Francoise Bouchet-Saulnier and Fabien Dubuet, Legal or Humanitarian Testimony? History of MSF’s Interactions with Investigations and Judicial Proceedings (Paris: Me´decins Sans Frontie`res, 2007), 42. Susan F., Patricia Weiss Fagen, Kari M. Jorgensen, Andrew Schoenholtz, and Lydia MannBondat, The Uprooted: Improving Humanitarian Responses to Forced Migration (Lanham, MD: Lexington Books, 2005), 3. National Commission for Human Rights (Rwanda), “Submission by the National Commission for Human Rights to the United Nations Human Rights Council under the

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Commission for Children the same year to advance youngsters’ rights and protect them from abuse, violence, and exploitation.72 These efforts notwithstanding, Rwanda still lacks child-friendly courts, and the current policy framework for juvenile justice is fragmented.73 Concerns regarding existing laws include the fact that children in the fourteen- to eighteen-year age group are still liable to twenty years imprisonment for offenses for which adults would be sentenced to life imprisonment (Penal Code, Article 77). Children in detention at police stations and imprisoned children are reportedly held together with adult detainees and prisoners, while young children are incarcerated with their mothers.74 These circumstances clearly contravene the principle of the best interests of the child, as established in the Convention on the Rights of the Child, which Rwanda ratified on January 24, 1991 – three years before the genocide. Overall, Rwanda’s ambitious experiment in transitional justice schemes will leave a mixed legacy. The various retributive and restorative justice mechanisms implemented during the process contributed to a better understanding of what happened in 1994. On the other hand, flawed trials and the arbitrary application of genocide ideology laws resulted in miscarriages of justice, particularly concerning displaced people, and among them the youth and minors. The reach of the contemporary Rwandan state is expansive, with a pervasive tendency toward social engineering. In this larger context, the government’s general approach to youth challenges remains at odds with the priorities of most of the young population,75 a situation compounded by “the risk aversion and quiet resistance that characterized the actions and rationales of its massive youth cohort.”76

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Universal Periodic Review,” Republic of Rwanda, 23rd Session, November 2015, NCHRRwanda_UPR23_RWA_E_Main.pdf Ministry of Gender and Family Promotion (Rwanda), “Strategic Plan for the Integrated Child Rights Policy in Rwanda,” August 2011, www.unicef.org/rwanda/RWA_resources_icrpstratplan .pdf, 31. Existing provisions include fixing of age of criminal majority at fourteen (Art. 77 of DecreeLaw N˚ 21/77, 1977); stipulations for trial of minors accused of offense by specialized juvenile chamber of Intermediate Courts (Art 75. Organic Law N˚ 51/2008); provisions for safety supervision and education measures for sentenced minors (Art. 76. Organic Law N˚ 51/ 2008); provision against detention of minors below the age of twelve in custody, except for investigation purposes for a maximum of forty-eight hours (Art. 184, Law N˚ 20/2006). Additionally, Law N˚ 38/2006 of National Prisons Services provides for special protection measures for incarcerated children and for supervision of prisoners between fourteen and eighteen years of age by competent authority. Ministry of Gender and Family Promotion, “Strategic Plan,” 31. Marc Sommers and Peter Uvin, Youth in Rwanda and Burundi Contrasting Visions, Special Report 293 (Washington, DC: United States Institute of Peace, 2011), 8. Somer and Uvin, Youth in Rwanda, 10.

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At the time of writing of this chapter in the spring of 2017, Rwanda stood out as one of the safest countries on the continent and has an economy that is relatively healthy and continues to grow.77 Kagame, Rwanda’s current president, had been expected to step down at the end of his mandate in 2017. However, a constitutional amendment was approved in December 2015, allowing him to potentially remain in office until 2034.78 Kagame’s popularity and his ability to maintain peace in the country, albeit through heavy-handed methods, are acknowledged even by opposition leaders.79 At the same time, “[o]pponents fear that a third term for Kagame’s suffocating and military-style approach to governance could derail the maturation of the country’s embryonic democracy,” arguing that “the RPF has created a de facto one-party state.”80 Kagame did run again in 2017, and he won by a significant majority. His permanence in office could, however, result in violence in the future, as the new law would relegate opponents to the political periphery until at least 2034. Political commentators have already argued that “Kagame’s victory could provoke rivals to forcefully extricate him, an action which could lead to civil war.”81 What happened in August 2017 during Rwanda’s presidential election could set an example for other African countries, potentially provoking a renewed crisis in the fragile Great Lakes region. As such, both the present and the future circumstances of the young people of the region, both local and displaced, continue to hang in the balance.

references African Rights Organization. A Wounded Generation: The Children Who Survived Rwanda’s Genocide. Kigali, Rwanda: African Rights, 2006. African Rights Organization. Rwanda, Broken Bodies, Torn Spirits: Living with Genocide, Rape and HIV/AIDS. Kigali, Rwanda: African Rights, April 2004.

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Jonathan Rosen, “Ahead of Vote on Term Limits, Rwandans Worry about Presidential Power Grab”, al-Jazeera America, December 2015, http://america.aljazeera.com/articles/2015/12/16/ paul-kagame-rwandas-president-for-life.html; John Mukum Mbaku, “Foresight Africa: Election Spotlight on Rwanda,” Brookings Institution, January 30, 2017, www.brookings.edu /blog/africa-in-focus/2017/01/30/foresight-africa-2017-election-spotlight-on-rwanda/ British Broadcasting Corporation, “Paul Kagame’s Third Term: Rwanda Referendum on 18 December”, BBC.com, December 2015, www.bbc.com/news/world-africa-3504988; Mukum Mbaku, “Foresight Africa.” Johannsen, “Fighting for Recognition”; Mukum Mbaku, “Foresight Africa.” Mukum Mbaku, “Foresight Africa,” para. 6. Jonathan Rosen as cited in Mukum Mbaku, “Foresight Africa,” para. 10.

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Amnesty International. Safer to Be Silent: The Chilling Effects of Rwanda’s Laws on “Genocide Ideology” and “Sectarianism.” London: Amnesty International Publications, 2010. Rwanda: Gacaca – Gambling with Justice. Amnesty International press release, Index: AFR 47/003/2002. June 19, 2002. Bouchet-Saulnier, Francoise and Fabien Dubuet. Legal or Humanitarian Testimony? History of MSF’s Interactions with Investigations and Judicial Proceedings. Paris: Me´decins Sans Frontie`res, 2007. Bradley, Megan. “Redressing Refugees: The Emergence of International Norms on Reparations for Returnees.” Paper prepared for the 50th International Studies Association Annual Conference, New York, NY, February 15–18, 2009. British Broadcasting Corporation, “Paul Kagame’s Third Term: Rwanda Referendum on 18 December.” BBC.com, December 2015. www .bbc.com/news/world-africa-3504988 Clark, Phil. The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda. Cambridge, UK: Cambridge University Press, 2010. Cobban, Helena. Amnesty after Atrocity? Healing Nations after Genocide and War Crimes. St. Paul, MN: Paradigm, 2007. Commission on Human Rights, “Report of the Special Representative of the Commission on Human Rights on the situation of human rights in Rwanda,” UN Doc. A/55/269, August 4, 2000. Duthie, Roger. “Transitional Justice and Displacement.” International Journal of Transitional Justice, 5 (2011): 241–61. Ensor, Marisa O. “Drinking the Bitter Roots: Gendered Youth, Transitional Justice, and Reconciliation across the South Sudan-Uganda.” African Conflict and Peacebuilding Review 3, no. 2 (Fall 2013): 171–94. “Contemporary Perspectives on Conflict Transformation.” African Conflict and Peacebuilding Review 3, no. 2 (Fall 2013): 1–23. Fletcher, Laurel E. and Harvey M. Weinstein. “Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation.” Human Rights Quarterly 24 (2002): 573–639. Harris, Bronwyn. 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. Hovil, Lucy. “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, May 7–9, 2008. Human Rights Watch. “Rwanda: Human Rights Developments.” Human Rights Watch World Report 2003. www.hrw.org/legacy/wr2k3/africa9 .html

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Human Rights Watch, “Law and Reality: Progress in Judicial Reform in Rwanda. Human Rights Watch, July 2008. www.hrw.org/sites/default/fil es/reports/rwanda0708webwcover.pdf Human Rights Watch. “Rwanda: International Tribunal Closing Its Doors.” Hrw.org, 23 December 2015. www.hrw.org/news/2015/12/23/rwandainternational-tribunal-closing-its-doors Ingelaere, Bert. “The Gacaca Courts in Rwanda.” In Traditional Justice and Reconciliation Mechanisms. After Violent Conflict: Learning from African Experiences, ed. L. Huyse, 25–60. Stockholm: International Idea, 2007. International Refugee Rights Initiative. A Dangerous Impasse: Rwandan Refugees in Uganda. New York and Kampala: IRRI, June 2010. Johannsen, Jesko. “Fighting for Recognition: Political Opposition in Rwanda.” DW.com, 9 September 2015. www.dw.com/en/fighting-forrecognition-political-opposition-in-rwanda/a-18703252 Kagan, Sophia. “The ‘Media Case’ Before the Rwanda Tribunal: The Nahimana et al. Appeal Judgement.” The Hague Justice Portal, April 24, 2008. www.haguejusticeportal.net/index.php?id=9166 Leveau, Fanny. “Liability of Child Soldiers Under International Criminal Law.” Osgoode Hall Review of Law and Policy 4, no. 1 (2013): 36–66. Mani, Rama. Beyond Retribution: Seeking Justice in the Shadows of War. Cambridge, UK: Polity/Blackwell, 2002. Martin, Susan F., 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. McDowell, Christopher. “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, 181–212. Lanham, MD: Lexington Books, 2006. Me´decins Sans Frontie`res. “Deadlock in the Rwandan Refugee Crisis: Repatriation Virtually at a Standstill.” Me´decins Sans Frontie`res / Doctors Without Borders, July 19, 1995. www.doctorswithoutborders.org/ what-we-do/news-stories/research/deadlock-rwandan-refugee-crisis-repa triation-virtually-standstill Ministry of Gender and Family Promotion. “Strategic Plan for the Integrated Child Rights Policy in Rwanda.” August, 2011. www.unicef.org/rwanda/ RWA_resources_icrpstratplan.pdf Ministry of Justice. “Imbonerahamwe Igaragaza Ibisabwa n’intangazo Ryaturutse Muri Perezidansi ya Repubulika/Chart Showing What Was Required by the Communique´ of the President of the Republic.” Kigali: Author, March 2003. Mooney, Erin. “The Concept of Internal Displacement and the Case for Internally Displaced Persons as a Category of Concern.” Refugee Law Quarterly 24, no. 3 (2005): 9–26.

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Mukum Mbaku, John. “Foresight Africa: Election Spotlight on Rwanda.” Brookings Institution, January 30, 2017. www.brookings.edu/blog/africain-focus/2017/01/30/foresight-africa-2017-election-spotlight-on-rwanda/ National Commission for Human Rights (Rwanda). “Submission by the National Commission for Human Rights to the United Nations Human Rights Council under the Universal Periodic Review.” Republic of Rwanda – 23rd Session, November 2015. NCHR-Rwanda_UPR23_RWA_E_Main.pdf Parquet Ge´ne´ral. “Instruction Concernant l’Exe´cution du Communique´ Pre´sidential du 01 Janvier 2003 Venant de la Pre´sidence de la Re´publique qui Concerne la Libe´ration Provisoire des De´tenus des Diffe´rentes Categories.” January 9, 2003. Prunier, Gerard. Africa’s World War. Oxford: Oxford University Press, 2008. Republic of Rwanda. Genocide Ideology and Strategies for its Eradication. Kigali: Government of Rwanda, 207. Rosen, Jonathan. “Ahead of Vote on Term Limits, Rwandans Worry about Presidential Power Grab.” Al-Jazeera America, December 2015. http:// america.aljazeera.com/articles/2015/12/16/paul-kagame-rwandas-presidentfor-life.html. Solomon, Andrew. “An African Solution to Internal Displacement: AU Leaders Agree to Landmark Convention.” Brookings-Bern Project on Internal Displacement Briefing, October 23, 2009. Sommers, Marc and Peter Uvin. Youth in Rwanda and Burundi Contrasting Visions. Special Report 293. Washington, DC: United States Institute of Peace, 2011. Teitel, Ruti G. “Transitional Justice Genealogy.” Harvard Human Rights Journal 16 (2003): 69. UNICEF. “Rwanda: Ten Years after the Genocide.” UNICEF.org, updated September 4, 2012. www.unicef.org/infobycountry/rwanda_genocide .html United Nations. “Framework on Durable Solutions for Internally Displaced Persons.” UN Doc. A/HRC/13/21/ Add.4, December 29, 2009. United Nations. “Background Information on the Justice and Reconciliation Process in Rwanda.” Outreach Programme on the Rwandan Genocide and the United Nations, March 2014. www.un.org/en/preventgenocide/ rwanda/about/bgjustice.shtml United Nations Committee on the Rights of the Child (UNCRC). “Second Periodic Report of Rwanda to the UN Committee on the Rights of the Child.” UN Doc. CRC/C/70/Add.22, October 8, 2003. United Nations Commission on Human Rights. Report on the Situation of Human Rights in Rwanda. New York: United Nations, February 25, 2000. UN Secretary-General. The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies. Report of the Secretary-General, UN Document S/2004/616, 2004.

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UN Secretary-General, Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice. New York: United Nations, March 2010. Waldorf, Lars. “Revisiting ‘Hotel Rwanda’: Genocide Ideology, Reconciliation and Rescuers,” Journal of Genocide Research 11, no. 1 (March 2009): 101–25. Weber, Kerry. Shadowed by Tragedy: Rwanda Strives to Rise above a History of Horror. America: The Jesuit Review, March 6, 2014. www.americama gazine.org/issue/shadowed-tragedy Wilkinson, Ray. “Crisis in the Great Lakes. Cover Story: Heart of Darkness.” Refugees Magazine 110 (1997). www.unhcr.org/3b6925384.html World Bank. Post-Conflict Reconstruction: The Role of the World Bank. Washington, DC: The World Bank, 1998.

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5 Beyond Agreements Management Tools to Support Peace Agreements in the Case of Displaced Populations in Colombia Fabio Andre´s Dı´az Pabo´n

introduction In this chapter, I demonstrate that simulation models, and in particular system dynamics models, could be a cheap and efficient way of examining policies that could allow public servants and service providers to learn and evaluate the different scenarios they are facing in delivering transitional justice remedies.1 In particular, I concentrate on the simulation2 and resultant evaluation of possible alternatives to be considered in relation to the reparation and restitution of land rights for the victims of forced displacement in Colombia. To this end, this chapter first presents a brief description of the phenomenon of forced displacement in Colombia and its impact on the society as a whole, thus highlighting the nature of the challenge for government institutions in tackling the results of decades-long conflict in the country. Then the chapter links these issues with the necessity of using managerial tools (in this case, simulation models) to assess scenarios and policies in relation to public policy initiatives and the overall transitional justice mandate. The chapter presents the reparation and restitution of lands in accordance to Law 1448 and the case of victims of forced displacement as a test case. It also discusses the limitation of the use of simulation models and the need to avoid an empiricist fever in their use. The methodological lens used here makes an important contribution to the overall debate on This chapter is based on a paper written with Felipe Venegas titled: “Managing Peacebuilding: The Use of Managerial Tools to Support Policymaking after a Peace Process” for the International Association for the Study of Forced Migration 2014 conference in Bogota´, Colombia. 1 C. Olaya, “Cows, Agency, and the Significance of Operational Thinking,” System Dynamics Review, 31, no. 4 (2015): 183–219. 2 The simulation was conducted to evaluate the impact on the system of different scenarios using simulation models for the “virtual” modeling of different alternatives.

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the transitional justice and forced migration nexus, in terms of keeping the focus strictly on national actors and domestic remedies as opposed to reliance on donor structures, international responses, and formulaic solutions. The “Colombian armed conflict” is a term used to describe a complex conflict that has involved several actors since the mid-1960s. The exertion of violence against civilians caught in the crossfire during the confrontation between irregular armed forces (FARC-EP, Eje´rcito de Liberacio´n Nacional (ELN), paramilitaries, etc.)3 and government forces has been a regular facet of this conflict.4 Locally, the population that has been a victim to forced and violent displacement from their homes in the crossfire of the conflict is generically referred to as “the displaced” [desplazados por la violencia]. According to the United Nations High Commissioner for Refugees (UNHCR), this drama has produced more than five million victims.5 According to the Colombian government, the number of internally displaced Colombians amounts to more than seven million citizens. In consideration of other human rights abuses, the number of victims in Colombia increases to a staggering 8.376 million.6 Since 2012 a beacon of hope emerged for the victims of the conflict, as a peace process began between the biggest armed group in Colombia (FARCEP) and the Colombian government. The negotiations were finalized with the peace agreements signed in November 2016.7 The negotiation process was accompanied by a series of additional gestures by the government in power, which, for the first time, recognized the casualties caused by government forces as victims and recognized the Colombian violence as an internal armed conflict. Concomitantly, the government established a series of legal measures that recognized victims and their rights, and set up new institutions that could support the peace negotiations. This process, built on jurisdiction and jurisprudence related to previous peace processes, paved the way for the idea that conditions for justice might be ripe for victims of the armed conflict.8

3

4

5

6

7

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The Revolutionary Armed Forces of Colombia – People’s Army (Spanish: Fuerzas Armadas Revolucionarias de Colombia – Eje´rcito del Pueblo, FARC–EP and FARC). Cour Pe´nale Internationale, “Report on Preliminary Examination Activities 2013,” Office of the Prosecutor, 2013. See Office of the United Nations High Commissioner for Refugees, accessed July 20, 2018, www.unhcr.org/cgi-bin/texis/vtx/page?page=49e492ad6 Unidad para la Atencio´n y Reparacio´n Integral a las Vı´ctimas, “Vı´ctimas por tipo de hecho victimizante,” 2017, http://rni.unidadvictimas.gov.co/RUV Gobierno de Colombia and FARC-EP, “Acuerdo final para la terminacio´n del conflicto y la construccio´n de una paz estable y duradera,” 2016, www.altocomisionadoparalapaz.gov.co/pr ocesos-y-conversaciones/Documentos%20compartidos/24–11-2016NuevoAcuerdoFinal.pdf C. Lo´pez, “Aprender de nuestra experiencia para que la paz sı´ le cumpla esta vez a los colombianos,” Revista de Ingenierı´a 44 (2016): 14–19.

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However, two interventions need to be made here. First, although a peace agreement has been signed with the FARC-EP, other armed groups have not signed peace agreements as yet, such as the ELN,9 the Eje´rcito Popular de Liberacio´n (EPL),10 and the Autodefensas Gaitanistas de Colombia (AGC).11 Secondly, peace is a broader concept that goes beyond negotiations with the FARC-EP. Thus, although the agreements with the FARC have reduced violence, they will not bring it to a halt. Proof of this is the targeting of human rights activists and similar attacks by other groups that are still active and exerting violence in the country.12 This adds complexity to the government’s efforts to provide justice to the victims of the conflict. Furthermore, other armed groups are still capable of interfering with the processes of justice, reparation, restitution, and restoration for victims.13 As a result, although victims have been granted rights, availability of legal mechanisms for the redress of the harms suffered do not alleviate the fact that their lives are still unfolding within a conflict setting. In other words Colombia is in a postagreement phase with the FARC-EP, not in a post-conflict phase. The stakes concerning the implementation of the agreements are high. The success of the implementation of government policies toward peace could lead to the reassertion of a social covenant in Colombia, and failure could set negative precedents for future peace negotiations with remaining armed groups.14 As such, the challenge for Colombian institutions in the next decade is the implementation of the agreements signed in Bogota´,15 and proving the capacity of the state for achieving institutional capacity to fulfill the promises made in the agreements with the FARC-EP. This is a momentous task, especially since some politicians are openly hostile to the peace agreements

9

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As of the time this chapter was written, the National Liberation Army is undertaking peace negotiations with the Colombian government. Eje´rcito Popular de Liberacio´n. Popular Liberation Army. Autodefensas Gaitanistas de Colombia, a paramilitary group that was a rebranding of the former AUC (Autodefensas Unidas de Colombia). The latter signed a peace agreement in 2006 with the Colombian government. However, it failed to demobilize its structures. For a detailed discussion on this, see (Pardo 2007). Revista Semana, “Amnistı´a raja a Colombia en Derechos Humanos,” 2017, www.semana.com/ nacion/articulo/amnistia-raja-a-colombia-en-derechos-humanos/516341 La Silla Vacı´a, “Van 27 alertas de la Defensorı´a y au´n nadie detiene el avance de los paras en Choco´,” 2017, http://lasillavacia.com/historia/van-27-alertas-de-la-defensoria-y-aun-nadiedetiene-el-avance-de-los-paras-en-choco-60570 M. Palacios, Entre la legitimidad y la violencia: Colombia 1875–1994 (Bogota: Editorial Norma, 2003). Signed on November 24, 2016, the “Acuerdo final para la terminacio´n del conflicto y la construccio´n de una paz estable y duradera” (Final agreement for the ending of the conflict and the building of a sable and lasting peace).

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and promoting their revocation.16 This is also the context in which the country started a reparation process for the victims of the armed conflict who were forcibly displaced from their land during the last two decades. In particular, Law 144817 established a series of ambitious goals that set measures toward the reparation of the victims of the conflict. Law 1448 defined the principles for reparation, restitution of land, compensation schemes, and the warranties of nonrepetition of violent acts that victimized more than 14 percent of the Colombian population.18 Furthermore, this initiative by the government was implemented before the agreement with the FARC-EP was completed, and thus constitutes the first formal step toward achieving transitional justice in the country. However, in a context where there is weak institutional capacity, difficulties for small municipalities and territories to design and execute public policies constitute particular challenges for the implementation of the law.19 This is also evident with regard to the implementation of agreements between the government and the FARC-EP. On the one hand, normative frameworks provide guidelines for when and how victims should be served justice, and the deadlines for completion. On the other hand, guidelines on how to achieve these goals, especially given the magnitude of the task at hand, are absent.20 To make matters even more complicated, the number of victims of forced displacement keeps increasing, since violence has not fully stopped. As mentioned earlier, other groups who are not yet part of the peace process still exert violence upon civilians. Therefore, in the best-case scenario, any action undertaken by the government would be able to deal with past challenges, but would not be able to foresee where or when new problems might appear. In this unstable environment, public officers are facing the almostimpossible task of restituting victims of forced displacement.21 For instance, in spite of the conditions and time frames set by the law, government 16

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New York Times Editorial Board, “The Man Blocking Peace in Colombia,” The New York Times, October 14, 2016, www.nytimes.com/2016/10/14/opinion/the-man-blocking-peace-in-c olombia.html?_r=0 Congreso de la Republica de Colombia, “Ley 1448 de 2011,” 2011, www.unidadvictimas.gov.co/ es/ley-1448-de-2011/13653 O. Huertas Dı´az, “Restitucio´n de Tierras, en el Marco del Conflicto Armado en Colombia: Propuesta legislativa de reparacio´n para las vı´ctimas,” Verba Juris (2012): 3–45. J. Vargas Reina, “Ana´lisis comparativo de los disen˜os institucionales que regulan la participacio´n de las vı´ctimas en Colombia: antes y despue´s de la Ley 1448 de 2012,” Estudios SocioJurı´dicos (2014): 175. A.M. Mendoza Pineros and J.I. Gonzales Borrero, El desplazamiento forzado en Colombia y la intervencio´n del estado: una mirada desde el goce efectivo de derechos y los factores asociados a su realizacio´n (Bogota´: Documentos CEDE, 2010), 2. Ibid., 3.

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institutions in charge of restituting land rights seem to be underperforming,22 with victims having to wait longer than the time frame that was set by law and, in some cases, facing worrying forecasts concerning the institutional capacity of the state to achieve the overall mandate of the law.23 These problems are in part the consequence of a mismatch between theory and practice, between norms and procedures. This is particularly salient in the case of reparations for the victims of forced displacement. It is expected that state institutions be steadfast and efficient in fulfilling a mandate written into law. However, lawyers, advocates, and legislators have fallen short of developing a framework for how to implement these measures. Although instructions look assertive and effective in the letter of the law and government mandates, they fail to provide illustrations and procedural guidelines for a bureaucracy saddled with a long-term internal conflict. In other words, legislation and norms are written as if Colombia was Olympus, a country where legal decisions are respected, incomes are high, inequality is nonexistent, the constitutional order is obeyed by citizens, so on and so forth. In effect’, these laws have to be implemented in territories where warlords rule. There is an immense gap between what is expected (the law) and the reality on the ground. If transitional justice initiatives aim to help redress mass suffering, they need to start formulating how to bridge these gaps. To understand these challenges, it is important to analyze the measures taken to redress the victims of forced displacement,24 so that laws and legislators are better equipped to deal with the organizational issues that emerge in fulfilling the mandate of transitional justice mechanisms. Debating the nature and reach of the law is necessary, as well, since discussing the problems of the reparation institutions is a healthy exercise that leads to improved accountability. In addition, it is imperative to propose how to improve the current system in order to ensure the level of service delivery that is expected by the affected public. In order to bridge the gap between what and how, I propose the use of simulation models25 as a tool to better understand the nature of the difficulties related to transitional justice policies. In turn, this would pave the way to diagnose and understand the true dimensions of the challenges, enable

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Contralorı´a General de La Repu´blica, “II Informe de seguimiento al proceso de restitucio´n de tierras,” Bogota´, 2013. F. Gutie´rrez Sanı´n, Un tranco´n Fenomenal. Un analisis de las demoras en el proceso de restitucio´n (Bogota´: Observatorio de restitucio´n y regulacio´n de derechos y de Propiedad Agraria, 2013). Ibid. A simulation model is a computer mock-up of a social model that can work as a prototype to understand its behavior in a virtual world.

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us to evaluate the effectiveness of existing institutions and procedures in place for reparation of the victims of displacement, and propose possible solutions to the failures of and weaknesses in the system.

redressing the rights of the victims of internal displacement in colombia: law 1448 The carnage and violence that engulfed Colombia for the past fifteen years must be understood first and foremost in the country’s specific historical context. Violence has been systematically used in the country since the early twentieth century to displace people in order to gain control of their lands.26 In recent decades, however, these processes of possession via displacement have been accelerated and made worse by the presence of different armed actors, several guerrilla groups, private armies, drug lords, paramilitaries, and the government armed forces, leaving the civilian population in the crossfire of the possible combinations of confrontations among these actors (see Figure 5.1). Indeed, understanding forced displacement in Colombia requires an assessment of the current situation as a by-product of the historical role played by violence and conflict in the illegal appropriation of assets in Colombia. These

Million 7.5 Colombia

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figure 5.1 Colombia’s internally displaced, estimates 2009–2016. Source World Bank. Retrieved from https://data.worldbank.org/indicator/VC.IDP.TOCV?locat ions=CO&view=chart on October 13, 2017. 26

Palacios, Entre la legitimidad y la violencia.

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forms of appropriation have been resorted to by both the elites and the armed groups since the beginning of the twentieth century within a framework of a structurally unequal society.27 However, the current forms of violence have also been fostered by the presence of drug traffickers and large international corporations with investments in Colombian natural resources.28 One area that can be used to illuminate the extent and force of the role of violence in displacing Colombians from their homes is aggregate population figures. At the beginning of the 1940s, the demographical composition of Colombia was 25 percent urban and 75 percent rural population. These numbers changed dramatically via mass “urbanization” of the country, with a resultant composition of more than 75 percent urban, 25 percent rural population by the 1980s.29 This demographic shift is to be explained in part with reference to the use of violence that was resorted to by both conservative and liberal parties in different provinces of the country and during their struggle against each other in order to accumulate wealth and power. In effect, these confrontations pushed a segment of the population in the country to flee to urban areas in search of shelter from violence. In other words, urbanization was combined with escape from violence in the Colombian countryside. In this context, the statement of the Norwegian Refugee Council that the FARC-EP originated chiefly among the forcibly displaced people in extremely isolated areas of the country30 presents what may be called the Colombian paradox: the use of violence in Colombia created not just cycles of further violence but also new forms violence. In terms of landmass, the area that has been abandoned because of forced displacement since 1998 accounts to a figure of around 5.5 million hectares. This is an area bigger than Switzerland, and is equal to 10.8 percent of arable agrarian land in the country.31 In 63 percent of cases, victims of the forced displacement were located in rural areas.32 Furthermore, displacement primarily targeted small landowners, as 28.6 percent of victims lost plots of less than 5 hectares, and more than 51 percent of the plots taken away were between 5 and 15 hectares.33 Forced displacement seems to have had 27 28

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Mendoza Pineros and Gonzales Borrero, El desplazamiento forzado, 7. Norwegian Refugee Council, “Colombia: Government ‘Peace Process’ Cements Injustice for IDPs,” Internal Displacement Monitoring Centre, 2006, 9. Banco de la Republica de Colombia, “El campo y la ciudad: Colombia, de paı´s rural a paı´s urbano,” 1999, www.banrepcultural.org/node/32860 Norwegian Refugee Council, “Government ‘Peace Process,’” 9. L.J. Garay, “Tragedia humanitaria del desplazamiento forzado en Colombia,” Estudios Politicos (2009): 174. Ibid., 156. Ibid., 175.

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particularly vicious effects among Indigenous groups and Colombia’s afrodescendants. Of the total figure of the forcibly displaced population, 23.6 percent of the displaced belong to an Indigenous group or to an afro-descendent group.34 These vicious attacks against the country’s minorities can be illustrated by the 2012 figures on forced displacement in Colombia, as 44 percent of all victims of forced displacement in the country in that year were afrodescendants and Indigenous people. Whereas Indigenous groups and afrodescendants correspond to 14 percent of the total population of the country, they are three times more likely to be among the forcibly displaced than other groups and communities. The consequences of internal displacement constitute a violation of the right to live, and to have a home and to reside in a particular place. Often, the scars of forced displacement placed affected citizens into a poverty trap that led to the displaced populations becoming further impoverished, dislocated, and alienated. Therefore, in spite of the fact that the relocation from rural areas to urban areas might imply a wider access to public services and protection, in reality it did not signify any significant benefit.35 Having access to some of the rights that should have been provided in their previous residence cannot be seen as a gain for people who have been forcibly displaced. The logic behind such an argument, whereby a potential increase in the enjoyment of basic rights is traded against the violation of another group of human rights, is a nonstarter. In fact, the effects of displacement are nefarious. Poverty indexes of displaced households are higher than what they were in the places these groups inhabited before, since 99 percent of the victims of displacement currently live in poverty,36 and 77 percent of such households live in extreme poverty in their new settlements.37 This situation presents a stark contrast to their previous lives prior to their displacement, where poverty affected 51 percent of the households that were displaced. This dramatic increase, leading to an almostdoubling of poverty, is explained by the changes in their income levels, whereby dislocation and violent expropriation of their assets hindered their economic capabilities.38 The decrease in their net income, which accounts to 9 percent in most cases,39 is magnified further by their insertion in places 34 35 36 37

38 39

Ibid., 159. Mendoza Pineros and Gonzales Borrero, El desplazamiento forzado. Ibid., 14. Norwegian Refugee Council, Colombia: El desplazamiento continua a pesar de las esperanzas de paz (Bogota´: Centro de Monitoreo de Desplazamiento Interno, 2014), 10. Garay, “Tragedia humanitaria,” 173. Ibid., 168.

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where the cost of living is higher. This, in addition to their social dislocation and the destruction of their support networks and social capital, leaves displaced people in a marked position of vulnerability. In a new city, being without assets, with low levels of education, and being stigmatized further limits their capacity to generate an income. Therein lie the value and importance of land restitution for the victims of displacement in the quest for peace. Landownership could allow displaced people to have better access to the tools with which to engage for the realization of their human rights in a more substantive way. Special policies crafted for the restitution, reparation, and generation of new assets are necessary to produce a real change in the socioeconomic condition of the displaced families.40 However, one also has to acknowledge that for some victims of forced displacement going back to a place where they were victimized is not a priority, in spite of the economic impoverishment they have suffered as a result of forced migration’. Their insertion into the economy of bigger cities may present better opportunities.41 In this regard, reparation and restitution do not consummate transitional justice measures addressing the rights of the displaced populations. Repairing the damage done by the actors of the conflict is needed to cement a new social covenant among Colombians. Overcoming the institutional and organizational challenges in relation to the reparation of the victims and the restitution of the land is just the beginning. Indeed, the peace agreements reached between the FARC-EP and the Colombian government defined a series of mechanisms to address elements related to the structural causes that led to armed conflict in Colombia. The topics of political participation, state control of societal violence, rural reform, and the challenges posed by illicit crops and drugs present venues for change in policies that could lay the foundations of a new social covenant, and for the reassertion of the promises of the social contract defined by the 1991 Constitution.42 In addition, current peace agreements present a series of mechanisms that would allow the establishment of a transitional justice framework in Colombia, incorporating initiatives such as a historical truth commission and a national human rights court. This would lead to the mixing of retributive and restorative justice methods, which is essential for addressing the plight of victims, who comprise 14 percent of the population, and offering them symbolic and effective redress. 40 41

42

Ibid. Centro Nacional de memoria Histo´rica, “Una Nacio´n Desplazada: Informe nacional del Desplazamiento forzado en Colombia,” 2015, www.centrodememoriahistorica.gov.co/descar gas/informes2015/nacion-desplazada/una-nacion-desplazada.pdf Gobierno de Colombia & FARC-EP, “Acuerdo final.”

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An equally important point is that the current framework for transitional justice does not operate in a vacuum. In fact, the initiatives followed after the agreements with the FARC-EP were preceded by decades of similar efforts. The demobilization of ten different armed groups in the country has involved mechanisms, institutions, and practices to allow for the provision of justice and the reassertion of the sovereign capacity of the Colombian state.43 These previous peace agreements and initiatives highlight the trials and tribulations that marked the making of the modern state in Colombia. A key example of such past initiatives is Law 1448. Interestingly enough, this law did not emerge as part of a peace agreement. As already mentioned, it was informed by the peace process involving the paramilitary forces in 2006, before the formal start of the peace negotiations with the FARC-EP. In 2011, the Colombian government signed the Victims and Land Restitution Law (Ley de Vı´ctimas), intending to return stolen, confiscated, or abandoned land to forcibly displaced populations.44 This law prescribes that anyone who has been forcedly displaced from their lands/homes since January 1991 can request the Colombian state to either give their land back or financially compensate them in the event that land restitution is not possible. The law ordains that over a period of ten years (up until 2021), all of the cases should be resolved. To properly address all the claims, the Colombian government created the Land Restitution Unit (URT – Unidad de Restitucio´n de Tierras), which is dedicated to analyzing every one of the requests from the possible victims and determining if the land is to be restituted. If the claim has validity, the URT has a mandate to offer reparations to the victims within the time frame defined by the law following a judicial process (see Figure 5.2). Overall, the performance of the URT has been heavily criticized.45 By 2017, according to the latest report of the URT, less than 1 percent of the victims had been restituted.46 The causes for this can be linked to a series of elements endemic’ to a complex problem such as the land scarcity issue in Colombia. In some cases, the areas where land has have been appropriated are still under the influence of armed groups, while in others the capacity of the government to

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Lo´pez, “Aprender de nuestra experiencia.” The law introduces a series of other elements for repairing other victims and other offenses committed during the Colombian conflict. However, they are outside of the scope of this chapter. Contralorı´a General de La Repu´blica, “Informe de seguimiento”; Procuradurı´a General de la Nacio´n, “Persiste el incumplimiento en la implementacio´n de la ley y los decretos leyes de vı´ctimas y restitucio´n de tierras,” 2017, www.procuraduria.gov.co/portal/incumplimientorestitucion-victimas.news See www.restituciondetierras.gov.co/estadisticas-de-restitucion-de-tierras, accessed 20 July 2018.

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Displaced person / Family

Special Administrative Unit for Land Restitution (UAEGRDT)

Proceso Solicitud y Restitucion de Tlerras a Campesinos Desplazados

Have they been forcedly displaced from their territory?

Decides/knows how to request the government their land back?

Study the case and decide if it can be microfocalized NO

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The request has inconsistencies?

Informs the requester the inconsistencies

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NO

Rejects request and close the case.

Standard process assumes that it is viable to return (no violence, no squatters or claimed ownership by other people, etc).

figure 5.2 The process of land restitution in Colombia according to Law 1448

Fill up a request and present it with all support documents

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deal with the demand for restitution is not present.47 Finally, we must take into account that the process of restitution is mediated by a legal system, and this leads to a series of challenges posed by judicial processes. The entire process is bound by the necessity to coordinate different institutions, a situation which inevitably creates bottlenecks and delays.48 Indeed, the restitution process usually involves the coordination of the police forces, armed forces, the ombudsman’s office, the general attorney’s office, and other government institutions that can provide information about and support the claim. Thus, the institutional capacity of the URT becomes vital, as the government tries to repair the damages suffered by the victims of the conflict. However, its institutional capacity at a decentralized level has been streched by tasks that are beyond its current administrative and managerial ability.49 This, in conjunction with the government’s limited capacity to pursue policy initiatives with concrete actions at the local level, defines the limits of the overall possibility of repair for the victims.50 As institutional capacity is a determinant factor in the realization of human rights,51 it is imperative to improve these deficiencies in the face of the challenges concerning the reparation of the victims.52 It has been observed that although the law prescribes set periods of time for each stage of the reparation process, their implementation takes far more time than what was envisaged.53 For example, victims are meant to be informed about’ their inclusion in the database of victims of conflict within a period of sixty days. However, for this stage alone of the process of reparation, delays can reach up to six months.54 The specific challenges concerning the restitution and reparation of victims of forced displacement can be summarized as follows:55 • Weak institutional capacity at the local level and lack of coordination between national and local initiatives; • The implementation of the restitution and reparation processes in environments where violence and war have not ceased; • In 94 percent of municipalities, scarce administrative and financial resources; 47 48 49 50 51 52 53 54 55

Gutie´rrez Sanin, “Un tranco´n fenomenal.” Contralorı´a General de La Repu´blica, “Informe de seguimiento.” Mendoza Pineros and Gonzales Borrero, El desplazamiento forzado, 16. Vargas Reina, “Ana´lisis comparativo,” 167. Mendoza Pineros and Gonzales Borrero, El desplazamiento forzado, 34. Norwegian Refugee Council, El desplazamiento continua. Gutie´rrez Sanin, “Un tranco´n fenomenal.” Norwegian Refugee Council, El desplazamiento continua, 12. Vargas Reina, “Ana´lisis comparativo.”

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• Lack of an integral legal project that deals with the land rights and lack of a proper land-based census in the country.56 Therefore, studying the implications of Law 1448 is very important for improving Colombian democracy, and in particular for developing public policy that would increase the legitimacy of the government and build on the recognition of the human rights of conflict victims.57 However, since the goal is to repair and restitute the rights of victims by 2021, this quest requires speed and efficiency from the policies and institutions designated to achieve this mandate. In this context, we must take the quest for human rights beyond the normative realm of what justice is into the practical realm of how to implement specific transitional justice initiatives.

simulation models for peace-building: an analysis of law 1448 in colombia Simulation models can support the assessment of the challenges in planning and assessing the required resources for implementing a comprehensive policy toward the displaced population and victims of internally forced displacement in Colombia. However, the utility of these simulation tools cannot bypass the need to reflect on the goals that a transitional justice mechanism should aim for (the “what”). Computer models help us into operationalizing these goals in regards to the gaps faced in post-conflict scenarios (the “how”), but they are only useful in relation to a stated objective. There are multiple tools and methodologies available for using, designing, and applying computer simulation for decision-making processes and public policy planning; in this case, I argue that the use of system dynamics methodology can be an effective approach that can support the assessment of the integrity and effectiveness of policies such as the ones designed by Law 1448.58 The utility of this approach resides in its capacity to allow policy-makers to analyze and explore the requirements, connections, and challenges involved in policies and institutions and their implementation, and thus to illustrate how delays, bottlenecks, and interconnections that are not evident can determine the success or failure of public policies. The greatest appeal of the use of computer modeling in this case is that it can take place in a virtual 56

57 58

N.C. Sa´nchez, “¿Sera Santos el Salvador de la Resituacio´n de Tierras?” La Silla Vacia, April 11, 2014. Gutie´rrez Sanin, “Un tranco´n fenomenal,” 6. Olaya, “Cows.”

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environment before implementation. As such, system dynamics methodology can help policy-makers to learn from possible managerial mistakes without actually executing these actions and affecting the life of citizens (Sterman 1994).59 Thus, to understand the gaps between theory and practice, law (what) and (how) in regards to the Law 1448 should be assessed, reflecting on the barriers that affect compliance with the mandates of the law in practice. The following sections will explain the methodology employed and outline previous cases before we proceed to present the simulation model used for analyzing Law 1448. Simulation models are tools that can allow policymakers to see how the complex interactions of a particular problem unfold under different scenarios.60 Policy-makers can use simulation models to learn, test, and design different scenarios in relation to the case under study, and for learning about the operation and challenges of particular policies.61 The use of simulation models can also be a tool for policy-makers to train managers and staff in order to understand the complexities of programs and policies.62 Such use is particularly useful given that social systems are characterized by the presence of counterintuitive behaviors, where policies oftentimes present unexpected results, and delays between the implementation and the assessment of results make it difficult to understand the impacts of particular actions when there is no baseline study.63 The capacity of models to represent, map, and make explicit our understanding about how public policies work and what can affect their performance allows for reflection on aspects that might affect the performance of a policy or a program.

challenges faced during the implementation of the victims’ law in colombia Backlogs, delays, and the understanding of feedback processes are difficult to grasp unless they are mapped or made explicit. This kind of complexity (see Figure 5.3) is natural in situations where conditions are changing constantly, where policy decisions will affect the future state of the problem addressed by the policy being implemented, and where outcomes do not necessarily obey

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J.D. Sterman, “Learning in and about Complex Systems,” System Dynamics Review 2, no. 10 (1994): 291–330. ISDPS, n.d. N. Ghaffazedegan, J. Lyneis, and G.P. Richardson, “How Small System Dynamics Models Can Help the Public Policy Process,” System Dynamics Review 27, no. 1 (2010): 22–44. J.D. Sterman, “System Dynamics Modelling: Tools for Learning in a Complex World,” California Management Review 43, no. 4 (2001): 8–25. Ghaffazedegan et al., “Small System Dynamics Models.”

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a linear structure.64 The case of the land restitution for victims of forced displacement is an example of such a complexity. For example, the modeling and understanding of the crisis of the victims of forced displacement must differentiate between the total number of people that have been displaced over a period of time, in comparison with the number of people displaced every year. This basic distinction presents different questions on how Law 1448 intends to deal with new victims of forced displacement. As the law envisioned it, the process would entail the restitution of victims of forced displacement between 1985 and 2011. However, the jurisdiction of the law also oversees the process for victims of forced displacement after 2011. Another possibility for the use of a simulation model would be the analysis of’ the institutional capacity of the institutions put in place to attend the demand from victims for reparation. When the law defined the deadlines and processes of the restitution process (see Figure 5.2), the process was envisioned to’ be impervious to changes regarding the number of claimants of restitution. The performance of the law would be defined by the capacity of the supply to respond to the demands from the citizens, and, to this extent, an analysis can be done using simulation models. Decisions Our decisions alter our environment, leading to new decisions,

Goals Environment Decisions Goals

Side effects Environment

Goals of other agents

but also triggering side effects, delayed reactions, changes in goals and interventions by others. These feedbacks may lead to unanticipated results and ineffective policies.

Actions of others

figure 5.3 Complexities of social problems faced by policy-makers. Illustration of feedbacks and nonlinear effects. Source: Sterman, “System Dynamics Modelling,” 14.

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Sterman, “System Dynamics Modelling.”

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Another aspect to consider is the effect of delays in the outcomes of the processes establishing the infrastructure for implementation of the law. Judges take time to be trained, and be instated in their positions; claims take time to be processed, and in a context of different institutions and several stages, small delays on these processes might imply dramatic changes in performance and the feasibility for the actual realization of the rights of the victims of forced displacement. Delays also make it more difficult for policy-makers to assess real progress, and the future progress of their policies.65 Specifically, system dynamics is a methodology that has been used in policy analysis and design, which applies the idea of mapping the complexity and the interconnections between different actors, processes, and institutions to analyze and reflect on problems arising from the implementation of public policies.66 The approach is ideal for cases where interaction, interdependence, mutual interaction, information feedback, accumulation, delays, and circular causality exist. Meanwhile, it is important to highlight that system dynamics models do not provide predictions but they do provide policy tools to examine and learn about the behavior of key variables over time. Previous research on similar topics using this methodology has involved the study of the accumulation of cases that had to be evacuated and resolved by judges and government offices in order to assess further strategies and policies, and to examine the consequences of interactions of relevant variables.67 Particular models dealing with the phenomenon of displacement using system dynamics have been focused on the victims of forced displacement in Darfur and their allocation into concentration camps, analyzing the resettlement and return of the victims to their original homes, as well as’ than presenting the flow of victims of displacement to the refugee camps.68

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Ibid. J.W. Forrester, “System Dynamics, Systems Thinking, and soft OR,” System Dynamics Review 10, no. 2 (1994): 245–56. C. Olaya, G. Diaz, and A.M. Ramos, The Power of the Stock: Accumulations in the Colombian Accusatory System Reform,”Proceedings of the 26th International Conference of the System Dynamics Society, University of Patras, Athens, 2008; C. Olaya, “Model-Based Lawmaking and the Curious Case of the Colombian Criminal Justice System,” Kybernetes 9, no. 39 (2010): 1678–1700. J.B. Sato and B.J. Stansen, “A System Dynamics Approach to Analyzing Violence, Death and Displacement in Darfur,” Conference Proceedings of the 2007 International Conference of the System Dynamics Society, Boston, July 29–August 2, 2007.

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a system dynamics model of law 1448 In order to assess a series of scenarios with regards to the process of land restitution dictated by Law 1448, we have built a simulation model encapsulating the process described in Figure 5.2. This model has four main sections. The first section (see Figure 5.4) represents the displaced population over time. A portion of the displaced population might decide to make a request to the government to be considered for the process of land restitution, whereas other segments of the victims of forced displacement will not present claims to this end. For this section of the model, we assume the capacity of the system to receive requests for land restitution is infinite and is not affected by the number of claims made. However, one should expect that the number of requests would affect the response rate by the institutions in charge of the process.

Displaced Population and Potential Beneficiaries

Daily displaced population New displacedl requesters

Total displaced requesters

Potential benefitiaries who want to present a request

Average requester per displaced group

Percentage of daily potential claimants Days in a year Percentage of daily claimants

Potential requesters waiting to present a request Daily requesters who present requests

Total requesters that have presented a request

figure 5.4 Displaced population and potential beneficiaries

The second section of the model (Figure 5.5) represents the different stages that the requests have to go through in the administrative process associated with the restitution. A request submitted by a potential beneficiary of the law is validated and revisited in all four steps of the process until the final stage, when

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a judge declares if the request has been accepted or denied. The first step is related to the “micro-focalization”69 of the case. In this context, there are two possibilities: either the land can be “micro-focalized” (a requirement of the law to initiate the process) or it cannot. If the requirement is fulfilled, the claim will move onto the next step, that is, the formalization of the requests. About 90 percent of the requests that enter the second step are formalized. The next step is the registration of the cases in the Registry of Forcibly Dispossessed and Abandoned Lands (RTDAF – Registro de Tierras Despojadas y Abandonadas Forzosamente), the national registry of lands forcibly dispossessed or abandoned due to violence. This process can take up to thirty days. The final step is the legal process that will produce a verdict on the case. The last part of the model (Figure 5.6) presents the different steps the claim has to go through for the restitution of land, as a result of which a given parcel of land goes from a status of being abandoned to being restituted. This process is a parallel process to the legal and administrative process presented in Figure 5.4. It involves the effective material transfer of the claimed land. The model also estimates how many people would finally receive their land back.

simulation as a tool for peace-building: an analysis of the implementation of the land restitution process in colombia (law 1448) The implementation of the peace agreements with the FARC-EP and the Colombia government in the form of transitional justice mechanisms implies a new set of challenges concerning the laws, procedures, and institutions related to the restoration of the rights of the victims of forced displacement. In other words, the signing of a peace agreement will not automatically lead to the elimination of the dramatic humanitarian crisis that the country has gone through.70 Still, the signing of the agreements in late November 2016 signifies a starting point for a new framework that is yet to unfold. As a tool of analysis, the models presented in this section will analyze two sets of conditions in order to assess the feasibility and the implications of restitution of the rights of the victims of displacement. The first scenario will be an ideal-type scenario; as such, it will present the mandated time frame and processes as spelled out by the law. Thus, this scenario represents a simulation of the law as is, and its implementation 69

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The process of micro-focalization refers to when a territory claimed can be validated and confirmed. This is an initial data validation step. Norwegian Refugee Council, El desplazamiento continua, 4.

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Request waiting to be microfocalized

Requests that were not microfocalized

Daily microfocalized requests

Pending requests

Unregistered requests

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Average time to register a request in the RTDAF

New requests for trial Requests waiting for a veredict

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Percentage of requests registered in the RTDAF

Daily requests Requests pending to be registered in the RTDAF registered in the RTDAF

New requests needed to be registered in the RTDAF

Daily requests Requests pending formalized to be formalized

figure 5.5 Administrative process for the restitution of lands

New requests in formal analysis

Total requests that were formalized

Average time in days to formalize request

Percentage of requests that are formalized

Administrative Land Restitution Process (Requests)

Requests that are denied

Daily request not formalized

Accumulated microfocalized requests

Average time in days to microfocalize a request

Percentage of effectiveness to microfocalize request

Request waiting to Requests pending Request pending to be Request waiting be microfocalized to be formalized registered in the RTDAF for a veredict

New request to be microfocalized

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Requests that were ruled in favor of the claiman:

Total requests in favor of the claimant

Average time for veredict

Percentage of veredicts in favour to restitute territories

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Claimed HA on a daily basis

Average hectares claimed by beneficiary

New land reported as abandoned per day

Average size of land by request

Daily land registered in RTDAF Daily land restituded to the claimant Total land restituded

Average people related to a beneficiary

Historical displaced population that can go back to their lands

Daily number of dispalced population going back to their lands

Displaced Population Restituted (People)

figure 5.6 Land claims and the beneficiaries from the restitution of land

Daily Ha of land microfocalized

Percentage of success to have the land back

Total Land registered in the RTDAF

Daily requests registered in the RTDAF

Total land Ha microfocalized

Daily microfocalized requests

Total Ha in the process of being claimed

Daily requesters who present requests

Land reported as abandoned in Ha

Potential beneficiaries who want to present a request

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should in every aspect of the process work perfectly. In other words, there are to be no delays, problems concerning institutional capacity, or institutional coordination. The second scenario analyzes the capacity of the law to restitute the victims of forced displacement in relation to the observed times in real practice. This scenario maps the reality of the process in accordance with the observed values and performance of state institutions extracted from the reports provided by the comptroller’s office. This is a realist assessment concerning the operation of the law.

first scenario: mapping the efficiency of law 1448 Through this scenario, we assess the fulfillment of the goals according to the conditions and deadlines set by Law 1448. The law does not consider elements such as the capacity of the system (the legal system and the land restitution institutions are assumed to have an infinite capacity) with regards to the number of claims to be made by the victims, so we hold this assumption within the model as well. Also, we assume that the performance of state institutions will be in accordance with what has been established in the law, disregarding the number of claims, so that processing times will not be affected by the number of requests. These assumptions are maintained throughout the simulation period. The simulation period comprises a tenyear period, which coincides with the time frame that the law establishes as an objective to achieve its goals. Thus, the first scenario assesses if the law could manage to achieve its objectives within the established deadline. The main aspects of the law stipulate the following times:71 • The time to receive an application (and process it) shall not exceed five days (Article 86A). • The time to analyze a request and make a decision if it should be included in the registry from the Unidad Administrativa Especial de Gestio´n de Restitucio´n de Tierras Despojadas (UAEGRD) is sixty business days, which could be extended by thirty days under specific circumstances (Article 156). • The evaluation of the documentation and proofs provided by the claimant must be performed in a maximum of twenty days (Article 79, Paragraph 1). • The probative stage will last at most thirty days (Article 90). • The time allowed to restitute the land to the owner is a maximum of five days (Article 100).

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Repu´blica de Colombia, “Ley de Victimas y Restitucio´n de Tierras – Ley 1448 de 2011,” Bogota´ (Cundinamarca): Diario Oficial 48096, June 10, 2011.

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This simulation model finds that, over ten years, the total number of people who would get their land back is near 800,000, which represents a total of 283,000 requests being ruled in favor of the claimants. However, this number would account for less than 15 percent of the victims of forced displacement in the country. In addition, this result is assuming that there are no new victims of forced displacement during the period of the mandate of Law 1448 (2011–21). At the end of the simulation, it would be expected that 7.5 millions hectares would be restituted. This volume would include land that has been reported as abandoned but has not been considered in the official process of reclamation. There is an underlying assumption that there will be a reduction in the displacements caused by the FARC-EP by 31 percent. However, if we consider that between 2001 and 2006 alone, between 2.6 and 6.8 million hectares were appropriated through forced displacement,72 the model might not be capable of compensating for the damage caused by various armed actors of the ongoing conflict. Based on the simulation results, it is also observed that in each stage of the administrative process there is an initial overflow of arriving cases, and it takes some time for the number of applications to stabilize. However, by the end of the legally proscribed period of implementation, the requests waiting for a verdict seem to be increasing, indicating a possible backlog. These results support the argument that the normative obligations defined by the law cannot be achieved in a period of ten years.

second scenario: efficiency of the process This scenario incorporates the information that has been retrieved after the preliminary implementation of Law 1448 and its assessment by the comptroller’s office.73 The purpose of this exercise is to compare the ideal type (the prescription of the law) with the practice of the implementation of the law. Similar to the first scenario, we find that the number of people who could go back to their homes and land is considerable, but lower than what is expected in the first scenario. This scenario indicates that there would be capacity to accommodate the needs of around 700,000 victims. However, there are implications to consider in practice. As land should be cleared as safe from armed groups, this issue might constitute an unsurpassable hurdle in some cases. Armed actors in Colombia still exert violence as paramilitaries, drug lords, and some left-wing

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Comisio´n Colombiana de Juristas, Revertir el destierro forzado: proteccio´n y restitucio´n de los territorios usurpados (Bogota´: Estrategias MCP ltda, 2006). Contralorı´a General de La Repu´blica, “Informe de seguimiento.”

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groups continue to operate in the country. Thus, the existence of violence beyond the FARC-EP will likely hamper the real implementation of these measures. Furthermore, the land restituted at the end of the simulation process lags behind the land reported as abandoned. This result is different from the first scenario, as processes take longer, and requests take more time at the administrative stages than initially envisaged by the law. The law will not be able to reach its target during the established deadline. However, in a longer time period it would be expected that the land restitution’ would achieve the same objectives as the first scenario. Finally, when comparing the different stages where the request might be held within the administrative process and the judicial process, again the most critical stage emerges as the judicial trial. As a result, there would be more backlogged requests. Additionally, the requests waiting to be registered in the RTDAF indicate that currently they might be pushing the limits of existing capacity. Even in the ideal scenario of infinite administrative capacity that can cope with all the requests and claims by the victims of forced displacement (disregarding the capacity of judges and municipal officers), the existing institutions are not able to achieve the goals proposed by the government in Law 1448. To come closer to their realization, a series of corrective measures could be suggested. The first one would be designing policies that reduce the delays in the administrative process without compromising the rigor that is required for the assessment of the claims of victims. Solutions such as those implemented by the URT to try collective claims are another possibility that might prove useful, as this clusters areas, claimants, and processes into groups. However, this scenario still needs to include a clearer depiction of the capacities of the system to deal with the requests, as well as the impact of attended requests on future demand by possible new victims. It could be assumed that if the process is successful for some victims of displacement, more victims will apply for it. If lands are not being restituted, on the other hand, the number of people who apply for the restitution of their lands will decrease; thus, these feedbacks might be affecting the performance of the system as a whole, as well as having significant negative repercussions for peace in the country.

conclusion The above assessment of different scenarios allows for a multifaceted interpretation of the feasibility and challenges involved in the restitution of land to victims of forced displacement in Colombia in accordance with the law and its mandates. The data used is excerpted from the reports prepared by the comptroller’s office. Based on the findings shared above, it seems evident that the restitution policy will

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not be able to fulfill its mandate within the scope of the mandate of Law 1448. This implies the necessity for government officers to analyze and improve the process. In the aftermath of the implementation of a new transitional justice framework as an outcome of the agreement with the FARC-EP, reflecting on the challenges and difficulties for implementation of Law 1448 can inform future policies for supporting further transition toward peace in Colombia. The model discussed in this article presents a possible venue concerning how to make transitional justice and peace a reality. As such, it presents an alternative, allowing researchers and policymakers to learn about the practical dimensions of the measures to be implemented. Here, a word of caution is required with regards to this model as well as simulation models in general. A model is just a model. It is not reality, and we cannot collude it with real-life situations. Such models are analytical tools that serve the purpose of learning, reflecting on, and mapping the challenges and operations laid out in laws. Therefore, for a model to inform policy-making with accuracy, a detailed assessment of the policy in question has to be undertaken. Elements such as the capacity of the system to deliver a particular service and the nature of the delays within the process are often not considered adequately. Still, the abuse of computer modeling disconnected from the day-to-day realities they aim to represent must be avoided. This latter use of models implies a nefarious form of armchair empiricism, an approach that would be useless or even detrimental for peace-building. On the specific issue of land restitution, this process involves both central and decentralized institutions. The interaction of these institutions is vital for understanding the policy initiative. In addition, elements such as the capacity of different decentralized institutions might imply that the delays between different areas of the country might differ. Indeed, it could be the case that in some provinces the capacity of the state allows for successful restitution of the land, yet in those areas where the conflict has been worse, their capacity may be far less. According to the simplified models presented here, the government is not in a position to fulfill the mandate of restituting the rights of the victims of forced displacement fully. In the light of these findings, it is likely that the achievement of the objectives of Law 1448 will require a careful crafting or in some cases redesigning of the institutional capacities in question. In Colombia, the clock is ticking. For more than fifty years, Colombia suffered from armed violence between the government and different armed groups, including guerrillas, paramilitary forces, drug lords, and private armies. Although the recently reached agreement between the Colombian government and the FARC-EP allows for redressing the victims of these confrontations, Colombian advocates of transitional justice have been right

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in pointing to the gap between what needs to happen (justice, restitution, memorialization, and/or reparation) and how it needs to happen. In general, the literature on transitional justice is assertive in claiming what needs to be done, but has failed to reflect on how to make transitional justice initiatives a reality, especially taking into account that these initiatives take place in conflict/post-conflict environments. For this, we need to acknowledge that laws do not automatically give rise to efficient public policies. This chapter has suggested that to transcend the discursive debate of what justice is, and to reflect on tools for facilitating the implementation of policy objectives, any normative or legal claim (about what justice should be in a particular context) must be accompanied with an assessment of possible venues on how to implement efficient measures. The use of managerial practices and conditional assessment of processes via the usage of tools such as simulation models could provide a venue to preemptively consider some of the possible challenges concerning the implementation of initiatives toward building peace. In order to identify bottlenecks, delays, and difficulties so that public policies could be planned more robustly, the case of the victims of forced displacement in Colombia offers us unique insights.

references Amnesty International. Colombia: The Victims and Land Restitution Law. London: Amnesty International Publications, 2012. Banco de la Republica de Colombia. “El campo y la ciudad: Colombia, de paı´s rural a paı´s urbano.” 1999. www.banrepcultural.org/node/32860 Centro Nacional de memoria Histo´rica, 2015. “Una Nacio´n Desplazada: Informe nacional del Desplazamiento forzado en Colombia.” 2015. www .centrodememoriahistorica.gov.co/descargas/informes2015/nacion-despla zada/una-nacion-desplazada.pdf Comisio´n Colombiana de Juristas. Revertir el destierro forzado: proteccio´n y restitucio´n de los territorios usurpados. Bogota´: Estrategias MCP ltda., 2006. Congreso de la Republica de Colombia. “Ley 1448 de 2011.” 2011. www.uni dadvictimas.gov.co/es/ley-1448-de-2011/13653 Contralorı´a General de La Repu´blica. II Informe de seguimiento al proceso de restitucio´n de tierras. Bogota´, 2013. Cour Pe´nale Internationale. “Report on Preliminary Examination Activities.” 2013. Deng, F.M. “Guiding Principles on Internal Displacement.” International Migration Review (1999): 484–93. Forrester, J.W. “System Dynamices, Systems Thinking, and soft OR.” System Dynamics Review 10, no. 2 (1994): 245–56.

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Garay, L.J. “Tragedia humanitaria del Desplazamiento Forzado en Colombia.” Estudios Politicos (2009): 153–77. Ghaffazedegan, N., J. Lyneis, and G.P. Richardson. “How Small System Dynamics Models Can Help the Public Policy Process.” System Dynamics Review 27, no. 1 (2010): 22–44. Gobierno de Colombia & FARC-EP. “Acuerdo final para la terminacio´n del conflicto y la construccio´n de una paz estable y duradera.” 2016. www .altocomisionadoparalapaz.gov.co/procesos-y-conversaciones/Document os%20compartidos/24–11-2016NuevoAcuerdoFinal.pdf Gutie´rrez Sanı´n, F. Un tranco´n fenomenal. Un analisis de las demoras en el proceso de restitucio´n. Bogota´: Observatorio de restitucio´n y regulacio´n de derechos y de Propiedad Agraria, 2013. Huertas Dı´az, O. “Restitucio´n de tierras, en el marco del conflicto armado en Colombia: Propuesta legislativa de reparacio´n para las vı´ctimas.” Verba Juris (2012): 33–45. Humans Right Watch. “The Risk of Returning Home.” Humans Right Watch, 2013. La Silla Vacı´a. “Van 27 alertas de la Defensorı´a y au´n nadie detiene el avance de los paras en Choco´.” 2017. http://lasillavacia.com/historia/van-27-alertas-dela-defensoria-y-aun-nadie-detiene-el-avance-de-los-paras-en-choco-60570 Lo´pez, C. “Aprender de nuestra experiencia para que la paz sı´ le cumpla esta vez a los colombianos.” Revista de Ingenierı´a 44 (2016): 14–19. Mendoza Pineros, A.M. and J.I. Gonzales Borrero. El desplazamiento forzado en Colombia y la intervencio´n del estado: una mirada desde el goce efectivo de derechos y los factores asociados a su realizacio´n. Bogota´: Documentos CEDE, 2010. Norwegian Refugee Council. “Colombia: Government ‘Peace Process’ Cements Injustice for IDPs.” Internal Displacement Monitoring Centre, 2006. Norwegian Refugee Council. Colombia El desplazamiento Continua a pesar de las esperanzas de paz. Bogota´: Centro de Monitoreo de Desplazamiento Interno, 2014. Olaya, C. “Model-Based Lawmaking and the Curious Case of the Colombian Criminal Justice System.” Kybernetes 9, no. 39 (2010): 1678–1700. Olaya, C. “Cows, Agency, and the Significance of Operational Thinking.” System Dynamics Review 31, no. 4 (2015): 183–219. Olaya, C., G. Diaz, and A.M. Ramos. “The Power of the Stock: Accumulations in the Clombian Accusatory System Reform,” Proceedings of the 26th International Conference of the System Dynamics Society, University of Patras, Athens, 2008. Palacios, M. Entre la legitimidad y la violencia: Colombia 1875–1994. Bogota: Editorial Norma, 2003. Pardo, R. Fin Del Paramilitarismo: ¿Es Posible Su Desmonte? Bogota´: Ediciones B., 2007.

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Procuradurı´a General de la Nacio´n. “Persiste el incumplimiento en la implementacio´n de la ley y los decretos leyes de vı´ctimas y restitucio´n de tierras.” 2017. www.procuraduria.gov.co/portal/incumplimiento-restitucionvictimas.news Procuradurı´a General de la Republica de Colombia. Observatorio sobre la gestio´n de la restitucio´n de Tierras Un proyecto de todos. Bogota´: Procuradurı´a General de la Nacio´n, 2013. Repu´blica de Colombia. “Ley de Victimas y Restitucio´n de Tierras – Ley 1448 de 2011.” Bogota´(Cundinamarca): Diario Oficial 48096. 10 June 2011. Revista Semana. “Amnistı´a raja a Colombia en Derechos Humanos.” 2017. Sa´nchez, N.C. “¿Sera Santos el Salvador de la Resituacio´n de Tierras?” La Silla Vacia, 11 April 2014. Sato, J.B. and B.J. Stansen. “A System Dynamics Approach to Analyzing Violence, Death and Displacement in Darfur.” Conference Proceedings of the 2007 International Conference of the System Dynamics Society, Boston, July 29–August 2, 2007. Sterman, J.D. “Learning in and about Complex Systems.” System Dynamics Review 2, no. 10 (1994): 291–330. “System Dynamics Modelling: Tools for Learning in a Complex World.” California Management Review 43, no. 4 (2001): 8–25. The New York Times Editorial Board. “The Man Blocking Peace in Colombia.” The New York Times. October 14, 2016. www.nytimes.com/20 16/10/14/opinion/the-man-blocking-peace-in-colombia.html?_r=0 Unidad para la Atencio´n y Reparacio´n Integral a las Vı´ctimas. “Vı´ctimas por tipo de hecho victimizante.” 2017. http://rni.unidadvictimas.gov.co/RUV Uprimi-Yepes, R., and N.C. Sanchez. “Los dilemas de la restitucio´n de tierras en Colombia.” Estudios Socio Jurı´dicos (2010): 305–42. Vargas Reina, J. “Ana´lisis comparativo de los disen˜os institucionales que regulan la participacio´n de las vı´ctimas en Colombia: antes y despue´s de la Ley 1448 de 2012.” Estudios Socio-Jurı´dicos (2014): 167–207.

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6 State-Based Truth Commissions The Case of Postwar Sri Lanka Jessica Chandrashekar

This chapter illustrates the role state-based truth commissions play in postwar nation-building when they are conducted during the resettlement of those who were forcibly displaced during the conflict. By drawing on the case of Sri Lanka, I examine transcripts of testimonies made to the “Lessons Learnt and Reconciliation Commission” (LLRC) during the commission’s field visits to war-affected communities in the Northern Province. The historical moment in which the LLRC took place was during the resettlement of Tamils who were displaced during the final stages of the war. This chapter examines the role of the Commission in the process of resettling citizens who were forcibly displaced by war, I suggest this process is equal to the forced “placement” of Tamil war survivors into the postwar Sri Lankan nation-state.

truth commissions: national narratives and false ruptures Within the field of transitional justice studies, a transitioning state is defined as one that is attempting to break away from authoritarian rule or armed conflict. Such states are defined as “weak” because they often remain politically, socially, and economically polarized. During the transition period, state infrastructure such as the legal system, police, and army often remains in the control of one of the parties to the conflict. Transitional justice programs are meant to be a bridge or vehicle that strengthens the ability of a transitioning state to move these state institutions into more democratic ones. Truth commissions are becoming increasingly popular transitional justice programs because they are easily accessible to transitioning states that may not have strong state institutions, such as a legal system to prosecute government and’ army officials who committed human rights violations. Proponents of truth commissions claim that revealing a “victim-centric” truth and then 135

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institutionalizing this truth as the new national memory of the past will not only ensure that such atrocities are never committed again, but also that the “victims” – who were once excluded both as humans and as equal citizens – will feel more included in the postwar or postauthoritarian nation.1 In other words, truth commissions rest on the premise that, by revealing the truth about mass atrocities, a nation will be able to move toward a more democratic future that is centered on a respect for human rights. However, critics of truth commissions argue that truth commissions are political interventions that rest “on a series of epistemological and ethical premises.”2 Critical legal scholars have argued that the law rests on liberal notions of the individual, progress, and rationality, and there is a more recent move to critically examine how these concepts are reproduced within the field of transitional justice.3 Lia Kent argues that truth commissions and transitional justice more broadly are informed by an underlying narrative of “transition” or “progress” that implies a progression from an illiberal to a liberal regime, or from violence to peace. Invoking Enlightenment values of “reason, progress, improvement and redemption,” transitional justice discourse is built upon the notion of “breaking with the past” and establishes a definitive sense of “now” and “then.” The assumption is that by “settling accounts” through criminal prosecutions and instituting therapeutic truth-telling mechanisms, individuals and postconflict societies will be assisted to “come to terms” with the violent past and states will make the transition to peaceful, stable, liberal democracies.4

In this narrative, transition is employed to create a break or rupture between a past that is violent and authoritarian, and a future that is peaceful and democratic. The past is inscribed with illiberal values and made to be a container of chaotic, irrational violence, whereas the present or transitioning 1

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Priscilla Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York: Routledge, 2002). Deborah Posel, “History as Confession: The Case of the South African Truth and Reconciliation Commission,” Public Culture 20, no. 1 (2008): 122; David Mendeloff, “TruthSeeking, Truth-Telling and Postconflict Peacebuilding: Curb the Enthusiasm?” International Studies Review 6, no. 3 (2004): 355–80. Dina Al-Kassim, “Archiving Resistance: Women’s Testimony at the Threshold of the State,” Cultural Dynamics 20, no. 2 (2008): 167–92; Erin Daly, “Truth Skepticism: An Inquiry into the Value of Truth in Times of Transition,” The International Journal of Transitional Justice 2, no. 1 (2008): 23–4; Brandon Hamber, Transforming Societies After Political Violence (New York: Springer, 2009); Ratna Kapur, Erotic Justice: Law and the New Politics of Postcolonialism (London: The Glass House Press, 2005); Fiona Ross, Bearing Witness: Women and the Truth and Reconciliation Commission in South Africa (Sterling, VA: Pluto Press, 2003). Lia Kent, “Local Memory Practices in East Timor: Disrupting Transitional Justice Narratives,” The International Journal of Transitional Justice 5, no. 3 (2011): 437.

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period is presented as precarious because it holds the potential of being subsumed by the violent chaos of the anti-liberal past. The future then holds the promises of liberalism, of peace and a democracy that is respectful of individual human rights. Such a conceptualization understands coming to terms with what is constructed as a violent illiberal past as enabling a nationstate to become a peaceful and properly liberal one. What often remains unproblematized is the implicit emphasis on the state as the focal point of transition, where the transitional process is geared toward rebuilding and strengthening the state with the assumption that a “strong” state is peaceful, democratic, and inclusive. What happens when the state that is the focal point for transitional justice programs was never experienced as peaceful, democratic, or inclusive by particular groups? What does it mean to strengthen a state that has always been inherently violent toward certain minorities? How does the creation of a new national narrative legitimize the existence of such a state and entrench state violence? The “new” national memory composed by a truth commission often necessitates the simplification of a complicated past as well as erasing the continuum of wartime violence that persists in the present. For example, colonial histories and the role of colonialism in an armed conflict might be acknowledged in a truth commission. However, the concept of the postcolonial nation-state itself, a relatively “new” entity, as a root of conflict needs more attention. This is particularly important when war-affected groups identify with their precolonial ancestral homelands, whose boundaries may not reflect the borders of the postcolonial nation-state. In such a context, transitional justice programs that are geared toward the rebuilding of postcolonial state authority may not be the most appropriate means of resolving conflicts that pertain to group identification with land. When conversations that problematize the very concept of the postcolonial state are avoided, there is a risk that violence will continue into the “post-war” period and potentially lead to another outbreak of war or violent state suppression. Analyses have shown that the official truth that is constructed through truth commissions can be employed by regimes of transitioning states to enter into “modernity” and, as a result, gain international legitimacy.5 When state-led truth commissions are not coupled with independent transitional justice mechanisms that have material, structural, and prosecutorial powers, the truth risks being co-opted by powerful state actors. This appropriation typically 5

Kent, “Local Memory Practices”; Kimberly Rae Lanegran, “Truth Commissions, Human Rights Trials, and the Politics of Memory,” Comparative Studies of South Asia, Africa and the Middle East 25, no. 1 (2011): 111–21; Posel, “History as Confession.”

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inserts the “truth” revealed by a truth commission into a nationalist narrative that presents itself as “new” and “inclusive” because of its supposed break from the past. However, under such circumstances, the newly sanctioned nationalism often reproduces the structural violence of the past. Advocates of truth commissions argue that it is important for victims to testify so that their experiences are included into the new national memory. However, truth commissions and truth-telling do not happen outside broader relations of power. This is especially important to take into account as truth commissions become the “go-to” transitional justice mechanism of choice. There are several political factors that shape truth-finding processes, and as Kimberly Lanegran points out: Manipulating memory is a potent tool in the powerful actor’s arsenal. As a result, the official memory of past atrocities that the truth-seeking institutions sanction should be regarded cautiously as a product of a process shaped by the power balance of political actors.6

Similarly, Cheryl McEwan states that “the question of who has the power to record the past and interpret history is important.”7 McEwan argues that systemic human rights violations create an “archival violence” by erasing particular groups as historical and human subjects. In contexts where impunity persists and the police and army remain loyal to the regime that committed atrocities, survivors must negotiate their truth-telling. Survivors are aware of the political power dynamics which structure truth-telling processes, and they shape their testimonies accordingly, making decisions about what truths to tell, how to frame these truths, and what truths not to tell; often survivors choose not to participate at all.8 In this case, we need to push against some of the liberal claims which inform truth commissions, because the idea that truth can be told safely in a vacuum, combined with the uncomplicated linking of voice to agency, risks the danger of denying survivors subjectivity agency.9 Furthermore, transitional 6 7

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Lanegran, “Truth Commissions,” 112. Cheryl McEwan, “Building a Post-Colonial Archive? Gender, Collective Memory and Citizenship in Post-Apartheid South Africa,” Journal of Southern African Studies 29, no. 3 (2003): 742. Brigittine French, “Technologies of Telling: Discourse, Transparency, and Erasure in Guatemalan Truth Commission Testimony,” Journal of Human Rights 8, no. 1 (2009): 92–109; Hayner, “Unspeakable Truths”; Nthabiseng Motsemme, “The Mute Always Speak: On Women’s Silences and the Truth and Reconciliation Commission,” Public Culture 52, no. 5 (2005): 909–32; Ross, Bearing Witness. Kimberly Theidon, “Gender in Transition: Common Sense, Women and War.” Journal of Human Rights 6, no. 4 (2007): 453–78.

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justice programs can reify oppressive power relations when they focus their programs on state-building, rather than starting from a position of opening up spaces to discuss colonial legacies and their direct role in postcolonial state construction and to problematize the concept of the nation-state itself. When the “national truth” about the past is used to create a new national memory, it can be supplanted onto a state that has not been transformed, despite the “truth” about the violent past having been “revealed.” More attention needs to be paid to how the assemblage of survivors’ testimonies risks creating a new archival violence when they are appropriated as commodities to advance the legitimacy of a government or state.

historical background In the case of Sri Lanka, transitional justice programs that focus on rebuilding and strengthening the state are problematic, and they risk entrenching the structural violence that led to the outbreak of armed conflict. This section provides a historical context for state power and violence that led to the war and the backdrop of postwar state violence against which the LLRC took place. A discussion of the history of state violence is important, because it contextualizes what is spoken in the testimonies. It also makes visible the glaring erasures and silences caused by the limited frame of the LLRC’s mandate. It is important to note at the outset that “Sri Lanka” only came to be called as such in 1972, when the first republican constitution was created and changed the island’s name from Ceylon. Prior to Dutch, Portuguese, and British colonialism, the island of Sri Lanka was comprised of three separate kingdoms, two Sinhalese and one Tamil. The Tamil kingdom was located in the north-east of the island, and it is this region that Tamils sought to reclaim as a separate state, beginning in the 1970s prior to the armed conflict. While the Dutch and Portuguese left the three kingdoms intact, the British forcibly amalgamated the island so they could rule it more efficiently. Sri Lanka is comprised of two ethno-linguistic groups, the Tamils and Sinhalese. Tamils are Catholic, Muslim, and Hindu, whereas the Sinhalese are predominantly Buddhist. In addition, there is a significant population of Indian Tamils who were brought from India by the British during colonialism as indentured laborers to work on tea plantations. They lived in the mountainous “hill country” region in the middle of the country, an area that was otherwise predominantly Sinhalese. Sri Lanka attained independence in 1948, with power being transferred to the majority Sinhalese. Almost immediately, the newly independent government passed the Citizenship Act of 1948, which denied Indian Tamils citizenship, effectively disenfranchising over one million Tamil speakers. Outside of the

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hill country, Tamils indigenous to the island were concentrated in their ancestral homelands located in the north-east of the island. Disenfranchising Indian Tamils entrenched majority Sinhalese rule by denying a substantial population of Tamils the ability to vote. Only a few years later, in 1956, the Sri Lankan government passed the Ceylon Language Act, making Sinhalese the only official language. The passage of this act is often cited as the precursor to the conflict, not only because it was an affront to Tamil identity, but also because it excluded those who did not speak or understand Sinhalese from state institutions. The passage of the Language Act was accompanied by the first major anti-Tamil pogrom. From 1956 to 1972, there were several attempts to reverse the Language Act; however, each initiative was unsuccessful due to antagonism by Sinhala parties and by Sinhalese society. Each attempt to reverse the act was also met with widespread state-sponsored antiTamil violence. While the British had transferred power in 1948, Sri Lanka was still a Dominion. The 1972 constitution entrenched and created further violence against Tamils. Tamils had advocated for the creation of a federal state with decentralized power because it would give them regional autonomy in the predominantly Tamil north-east. However, the 1972 constitution created a unitary state with centralized state power. Not only did the constitution incorporate the Language Act of 1956, making Sinhalese the official language, it made Buddhism the official religion. Tamils, who were Hindu, Christian, or Muslim, were thus linguistically, religiously, and geographically disenfranchised. In 1978, the second republican constitution was brought in, mirroring the 1972 constitution and adding executive power to the president, thus further concentrating state power in the hands of the Sinhalese.10 Changes to the state were met with resistance from Tamil society, first in the form of a nonviolent Gandhian movement, which existed from the 1950s up until the late 1970s. After several decades of being excluded from the postcolonial state and an unsuccessful bid at a federal solution, Tamil politicians decided to run in the 1977 elections under a platform that included advocating for a separate Tamil state.11 They were overwhelmingly voted in and became the official opposition. Immediately after their election, another island-wide anti-Tamil pogrom broke out. Tamil youth became impatient with unsuccessful nonviolence and democratic forms of advocacy. Their frustration was compounded by government policies that limited their educational and employment opportunities. 10

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S.J. Tambiah, Buddhism Betrayed? Religion, Politics and Violence in Sri Lanka (Chicago: University of Chicago Press, 1992). Gunasingam, Murugar, Sri Lankan Tamil Nationalism: A Study of Its Origins (Sydney: MV Publications, 1999); Ponnambalam, Satchi, Sri Lanka: The National Question and the Tamil Liberation Struggle (London: Zed Books, 1983).

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Eventually, they banded together to form guerrilla groups and used armed struggle to advocate for a separate state. This led to the creation of an armed group called the Liberation Tigers of Tamil Eelam (LTTE).12 Six years after the 1977 election violence, in 1983, the most violent anti-Tamil pogrom occurred, which resulted in widespread Tamil support for the LTTE’s use of arms to fight for a separate state.13 Of note, days after the 1983 pogrom the Sri Lankan government brought in the Sixth Amendment to the constitution, allowing for the revocation of civic and property rights of those who supported a separate state.14 The 1983 pogrom and the Sixth Amendment foreclosed available democratic avenues and marked the beginning of the armed conflict.15 In 2002, an internationally brokered cease-fire brought the hostilities largely to a halt. By this time, the LTTE had control over a significant portion of the Tamil ancestral region they sought to reclaim for a separate state. The ceasefire allowed them the opportunity to rebuild the war-torn areas that were under their control. During this time, the LTTE was able to consolidate several statelike institutions they had been developing throughout the war, such as a court system, law school, health care system, and social welfare system.16 The ceasefire was a significantly positive experience for Tamils, especially those living within LTTE-administered areas. However, due to several geopolitical factors, the cease-fire broke down. The war began again in January 2008, when the Sri Lankan government officially abrogated the cease-fire and launched a military campaign to “end the war.” Less than a year and a half later, on May 18, 2009, the Sri Lankan military overpowered the LTTE, killing its leadership and their families. During the final phase of the war, over 147,000 Tamils who lived in the region were killed or disappeared.17 The survivors were put into internment camps, and LTTE suspects 12

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Murugar Gunasingam, Tamil Eelam Liberation Struggle (Sydney: MV Publications, 2012); Dagmar Hellmann-Rajanayagam, The Tamil Tigers: Armed Struggle for Identity (Stuttgart: Franz Steiner Verlag, 1994). Nancy Murray, “The State Against the Tamils,” Race and Class 26, no. 1 (1984): 106. An Act to Amend the Constitution of the Democratic Socialist Republic of Sri Lanka, Sixth Amendment to the Constitution, 1983, Article 157 A. Chelvadurai Manogaran, Ethnic Conflict and Reconciliation in Sri Lanka (University of Hawaii Press, 1987). N. Malathy, A Fleeting Moment in My Country (Atlanta: Clarity Press, 2012); Kristian Stokke, “Building the Tamil Eelam State: Emerging State Institutions and Forms of Governance in LTTE-Controlled Areas in Sri Lanka,” Third World Quarterly 27, no. 6 (2006): 1021. International Crimes Evidence Report, Island of Impunity: Investigation into International Crimes in the Final Stages of the Sri Lankan Civil War, 2014; Oakland Institute, I Speak Without Fear: Where Are Our Loved Ones Who Have Been Abducted, Arrested, and Disappeared?, 2015; Permanent Peoples Tribunal (PPT). People’s Tribunal on Sri Lanka, 2014; UN Human Rights Council. Report of the Office of the United Nations High

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were put into detention centers.18 As the entire population who lived in the LTTE de facto state was detained, the Sri Lankan military moved into the region, built permanent military bases, and occupied Tamil lands. Tamils were eventually released from the internment camps, only to return to their communities and find the military occupying them.19

emergence of the llrc After the end of the war in May 2009, the Lessons Learned and Reconciliation Commission (LLRC) was initiated by the Sri Lankan government to investigate into why an attempt at a cease-fire and peace negotiations in 2002 failed. The Commission consisted of eight commissioners appointed by President Mahinda Rajapaksa, who had also been president and commander-in-chief of the Sri Lankan Armed Forces during the final and most bloody phase of the armed conflict. The LLRC conducted interviews and investigations in 2010 and 2011, and released their final report on 15 November 2011. The LLRC was highly criticized by a wide range of civil society and human rights groups, and international organizations including Amnesty International, Human Rights Watch, and the International Crisis Group, who stated in an open letter that the LLRC “not only fails to meet basic international standards for independent and impartial inquiries, but it is proceeding against a backdrop of government failure to address impunity and continuing human rights abuses.”20 The LLRC came about at a time when

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Commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka, 2015. Amnesty International, Unlock the Camps in Sri Lanka: Safety and Dignity for the Displaced Now, 2009; Amnesty International, Locked Away: Sri Lanka’s Security Detainees, 2012; Human Rights Watch, Legal Limbo: The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, 2010; Human Rights Watch, “We Will Teach You a Lesson”: Sexual Violence Against Tamils by Sri Lankan Security Forces, 2013; International Commission of Jurists. Beyond Lawful Constraints: Sri Lanka’s Mass Detention of LTTE Suspects, 2010. International Crisis Group, “Sri Lanka’s North II: Rebuilding Under the Military,” 2014; International Crisis Group, “The Forever War?: Military Control in Sri Lanka’s North,” 2014, http:// blog.crisisgroup.org/asia/2014/03/25/the-forever-war-military-control-in-sri-lankas-north/; Maatram Foundation. Understanding Post-War Land Issues in Northern Sri Lanka, 2015; Oakland Institute, The Long Shadow of War: The Struggle for Justice in Post-War Sri Lanka, 2015; Natasha Price, “Integrating ‘Return’ with ‘Recovery’: Utilising the Return Process in the Transition to Positive Peace: A Case Study of Sri Lanka,” The Round Table 99 (2010): 529. Amnesty International, Human Rights Watch, and International Crisis Group, LLRC Joint Letter. 2011, www.crisisgroup.org/asia/south-asia/sri-lanka/sri-lanka-crisis-group-refuses-appear-fla wed-commission.

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there was increasing international criticism of the Sri Lankan government and its military actions during the final stages of the war. Evidence of war crimes, crimes against humanity, and genocide was widely circulated internationally, and rights groups began pushing for an international investigation into such allegations. During the war, portions of the north-east were controlled by the LTTE, making these regions inaccessible to the government. Furthermore, the protracted conflict was an impediment to the state realizing what it considered to be its economic potential, as foreign investors did not want to invest in an “unstable” state. The Sri Lankan government’s “war victory” in 2009 provided it with, for the first time in decades, an economic opportunity for attracting foreign investment, as well as physical access to the previously LTTE-administered regions in the northeast of the island. However, allegations surrounding the human cost of winning the war became a barrier to the Sri Lankan state’s desire for economic prosperity and international acceptance. The LLRC, as a domestic state-led inquiry into the allegations, was meant to placate international criticism and assert the sovereignty of the state by framing the conduct of the Sri Lankan armed forces as a domestic issue rather than a breach of international criminal law. In fact, of the 388 pages of the final report, 226 dealt with allegations of violations of international law, and, unsurprisingly, the commission found that there was no such evidence that international law was violated by the state.21 The rest of the report dealt with a wide range of pressing issues such as disappearances and land claims. However, by ruling out any breach of international law on the part of the government, these issues were then framed as domestic problems, to be sorted out by the same state and government that was accused of committing atrocities and crimes. As such, many Tamil civil society groups, grassroots organizations, and war-affected communities viewed the LLRC as a “whitewashing” operation conducted by the Sri Lankan government and a reassertion of Sri Lankan national borders over their homeland, effectively justifying state’s power and authority over the Tamils who survived the war.

layers of displacement in the northern province An examination of the LLRC testimonies collected in the Northern Province illustrates the role state-led truth commissions play in postwar nationbuilding. The Northern Province was the site of a Tamil de facto state, 21

C.R. De Silva et al., “Report of the Commission of Inquiry on Lessons Learnt and Reconciliation.” Data and Information Unit of the Presidential Secretariat, Sri Lanka, 2011, www. priu.gov.lk/news_ update/Current_A airs/ca201112/FINAL%20 LLRC%20REPORT.pdf.

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constructed as a response to Sri Lankan state oppression, and it was the site of the frontlines of the war. Due to the fighting that took place in the region, large portions of the population of the Northern Province were forcibly displaced multiple times. A large segment of the displaced Tamil population ultimately came to live in the LTTE-administered Tamil de facto state because they felt it was safer than living under Sri Lankan state repression. As a result, many displaced Tamils had the experience of living in two states – that of Sri Lankan Sinhala-majority state and that of a Tamil “state” located in their ancestral precolonial homeland. As such, the forced migration experienced by many in the Northern Province was not simply that of internal displacement within a state. Rather, they were forcibly displaced between states: first when they fled to the Tamil de facto state, and then during the end of the war when the Sri Lankan army overpowered the LTTE and invaded the de facto state, forcing everyone into internment camps located in regions controlled by the Sri Lankan government. Eventually, the Sri Lankan government planned and coordinated their resettlement out of the camps back to their land, which was by then in the possession of the Sri Lankan state. The resettled population, which had been previously living in a Tamil de facto state, was in many ways then forcibly placed into the Sri Lankan state after the war.

testimonies While the LLRC was an “investigative” truth commission in that it was tasked with figuring out why the cease-fire failed, it also built a new national narrative. It constructed a narrative of the past (the war) and a narrative of what the state imagined it will be in the postwar future. Furthermore, it depicted’ the postwar transitional moment during which it took place. Those who had lived in the LTTE-controlled region of the Northern Province were transitioning from living in a Tamil state to living in the Sri Lankan nation-state. This section illustrates the LLRC’s narrative construction, first as it is reflected in the commissioners’ remarks during the LLRC sittings in the Northern Province. It then examines’ the ways in which the LLRC witnesses resisted the LLRC’s narrative. The Commissioners’ Remarks The commissioners’ opening remarks are important because they the framework of the Commission, and signify the implicit political objectives to which

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the testimonies would be used. The following is a portion of the opening remarks made by the chairman of the LLRC during the Mullaithivu field visit: Ladies and gentlemen, we have come here to find out the problems that you encountered before the war and the problems that you encountered after the war so that we can make recommendations to diffuse these problems with a view of building a united Sri Lanka where all of us are equal citizens enjoying equal privileges and rights. This country belongs to all its citizens irrespective of ethnicity and religion. Now the war is over. Now we must live like brothers and sisters where all of us are equal citizens enjoying equal rights and privileges. We are here to find out your problems and grant you some sort of relief and bring about an ethnic reconciliation so that the ugly head of terrorism will never raise its head once again in this country. This Commission of Inquiry is conscious of some of the genuine grievances that you all have. You can be rest assured that we will make very strong recommendations to ensure that these grievances are remedied and we live as brothers and sisters in this country. Thank you.22

Often, the commissioners would state that “you all are our brothers and sisters” or “we must behave as children from one mother.” This effectively locates the commissioners on a moral high ground, as they are able to let go of the “past” and invite the witnesses into the postwar Sri Lankan national/familial fold. There was no recognition of the very divergent social location, relationship to the state, and lived experiences of audience to which they were speaking. During the field visits, there were numerous instances of the army, police, and paramilitaries intimidating and threatening witnesses. However, the commissioners erased the traces of violent context in which they were complicit as representatives of a government by not ensuring security for witnesses. Instead, they offered witnesses the choice of speaking in camera if they were “embarrassed” to speak in front of an audience. This was further illustrated in the opening remarks made during the Vavuniya field visit: Dear mothers, gentlemen, brothers, sisters and children, as we are all aware all of you were subject to various difficulties, inconveniences during the past several years. We have come to find out what your difficulties are what the difficulties you encountered over the past and the difficulties that you are encountering now. We will try our best to make recommendations to relieve you of these difficulties at present and also we will make recommendations to ensure that the difficulties will not occur again. We are alive to the fact that 22

Mullaitivu Divisional Secretariat Transcripts, LLRC Media Coverage and Submissions, Grou ndviews.org, 2010, https://drive.google.com/file/d/0Bxbk4wYolphwYTJlZjdiZTYtZjhkNS00NG NhLWJlMGQtOTE5YWJjYWQxYWIy/view?ddrp=1&authkey=CMX664kB&hl=en#.

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all of us are equal citizens and we must live in unity like children of one mother. We must forget the past and try and build a future for all of us and the future generations to come. For this you must tell us what your problems are, how one could lead a respectable life. You must be having problems in so far as education is concerned for your children, medical facilities to fulfill your health needs, basic accommodation and you should without any fear or embarrassment tell us your problems.23

The opening remarks made during the field visits to the Northern Province are also revealing of the Commission’s attempts to depoliticize and narrowly define the parameters of the content of witness testimonies. The commissioners claimed to be concerned about “some of the genuine grievances” of the witnesses. Yet, they preemptively located these grievances within the aim of “building a united Sri Lanka,” where the onus was put on the survivors of violence to “live in unity” and as “equal citizens.” There was no acknowledgment that the commissioners might be speaking to a group of survivors who, after generations of disenfranchisement and oppression, did not identify as “Sri Lankan.” The historical, structural, and material violence that disenfranchised the Tamils in the Northern Province is described as “inconveniences,” “difficulties,” or “terrorism,” all of which reduce the lived experiences of the survivors to being both irrational and without basis, as well as simple to solve. Witness Testimonies The commissioners seemed to be aware that to be taken seriously the LLRC had to have Tamil “victims” testify, but they intentionally arranged the field visits so that they would not give too much space for testimonies by Tamils from the war-affected areas in the Northern Province. The commissioners frequently asked witnesses to write down their complaints rather than testifying. Time constraints were cited as the reason why people who came to testify were denied the space to speak.24 Considering the Northern Province was disproportionately affected during the time period the LLRC was mandated to investigate (2002–9), it is unsurprising that the eleven days the commission allotted to the Northern Province was far too short. At times, the transcripts are revealing of the tensions between the commissioners, their Tamil interpreter, 23

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Vavuniya Transcripts.,LLRC Media Coverage and Submissions, Groundviews.org, 2010, https:// docs.google.com/file/d/0Bxbk4wYolphwNGQ2OGY1NTMtYWNiMC00NDY3LWI1ZjQtZW ZjMjRlN2M5NTgy/edit?hl=en. Amnesty International, “When Will They Get Justice? Failures of Sri Lanka’s Lessons Learnt and Reconciliation Commission,” Amnesty International, 2011, www.amnesty.org/en/docu ments/document/?indexNumber=asa37%2F008%2F2011&language=en.

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and people who came to testify. The commissioners grew frustrated with the witnesses for wanting to testify, rather than writing down the names of their detained or disappeared loved ones. Take, for example, the following exchange from the Killinochchi transcripts: Commission Interpreter to Chairman: I have told them sir all that. I have told them. Very clearly I have told them, very elaborately I have told them. Commissioner Ramanathan once again addressed the people and stated that due to time constraints it is not possible to listen to everybody’s grievances and to submit in writing. Chairman: Tell them if it is in the case of a missing person or a person who is held in detention to give the information to them [an official] otherwise there is no purpose, because there is nothing that I can do here. It has to be given [in writing]; then we have to make inquiries. Tell them we can’t say anything now. Commission Interpreter to the Witnesses: It is only if it has been given in writing . . . Interruption from the Audience: We have been doing this for the last so many months. We thought that the day will dawn for us but . . . Chairman: You see the point is this. We don’t know each individual case. We have to inquire from the TID and thereafter only we can say anything. So there is no point in coming and telling us this way. They must give all the particulars then we will inquire and take come positive action. Chairman to the Interpreter: Is her problem different?25

In order to limit the number of testimonies, the commissioners began announcing that all those who came to testify about detainees and missing persons should write down their “complaints” rather than testify. At times, the commissioners would ask the Commission’s translator, prior to a witness’s testimony, whether they would be speaking about a “different problem,” meaning something other than detention and missing persons. Yet the majority of the people in the Northern Province attended the LLRC sittings to testify about detainees and disappeared loved ones. During one of the sittings, a witness directly asked the commissioners why they were so unprepared to deal with the issue of disappearances. A reading of the testimonies complicates the connection between voice– agency–subject and the corresponding silent–victim–object position. The witnesses seemed to be aware that on the one hand they were being used and portrayed as occupying the voice–agency–subject position in order for the 25

Killinochchi Divisional Secretariat Transcripts, LLRC Media Coverage and Submissions, Grou ndviews.org, 2010, https://drive.google.com/file/d/0Bxbk4wYolphwZGU0MzE1YWYtODIyMy00 NmViLTk5NDctNmIzMjliNDBmYTFk/view?ddrp=1&authkey=COqC8_0P&hl=en#.

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commission to appear legitimate. However, the actual denial of space to speak about issues they consider pressing and important risked forcing witnesses into a voiceless–object position. To mediate and subvert this dynamic, the witnesses drew on various strategies to challenge the Commission’s proceedings, by questioning its overall structure and by drawing on strategic uses of language to frame their testimonies.26 In the following example, the witness was a mother who testified about her son and son-in-law who were detainees, in defiance of the commissioners’ requests: Chairman to Interpreter:

Chairman to Interpreter:

Witness 10 (last witness): Chairman:

Witness 10:

Chairman: Witness 10:

Please ask these people if they have any details of the people detained to hand them over as all of them are coming here. If they are making representations about persons gone missing ask them to give the details to that gentleman there. My son and my son-in-law are detained. Give us some documentation regarding their identity, places where they were detained so that we can then move on the matter and see what we can do. I am a woman, I am a widow and I am helpless. There are three families I have to support Does she know the place where her son and son-in-law are detained? One is at Welikanda and the other is at Omanthai detention camp. I have left the ID card details at home. Only now I know about the sittings so I came running from the shop.27

At other times, when the commissioners tried to end a witness’s testimony, the witness would continue testifying anyway: Witness 11 Witness:

26 27

My son (X2) is under detention in the Welikanda Detention Camp. I have four daughters and my husband cannot do any work because he has been afflicted. The Army wanted all the

French, “Technologies of Telling.” Nedunkerni Transcripts, LLRC Media Coverage and Submissions, Groundviews.org, 2010, https://drive.google.com/file/d/0Bxbk4wYolphwNTQ2NGIxMGEtODhiMi00NzFkLWEz N2UtN2Y5ZWRlMGJjOTY4/view.

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people who had anything to do with the LTTE to register their names, so my son went and registered his name. They promised to release them within six months. So far they have not released them. Tell her that we will be writing to the authorities. Please help us. We have registered a complaint . . . we have been spending quite a lot of time. We went to Vavuniya Police also several times to make a complaint. They promised to release them within six months, now it is more than a year. Right, right.28

There were also several instances of people in the audience interrupting the commissioners and arguing that they had been writing down their complaints and giving them to different authorities for months, sometimes years, and that at this point they expected more from a government commission. Witnesses also pointed out that the Commission was structured so that it was exclusive and inaccessible to people, either because it was poorly publicized or because it was physically inaccessible to the tens of thousands of people who have war-related disabilities. For example, the following is an excerpt from a witness testimony that was titled “representation re: disabled people” in the testimony transcripts: One more small thing. So much of disabled people are here. Can you make some arrangements to give them assistance? They cannot come to this meeting because they can’t even walk.29

Witnesses who were former government workers, such as teachers, surveyors, and irrigation workers, strategically employed language and narrative so as to testify to the systemic and structural causes of the war. Saptarshi Mandal discusses what she calls the “burden of intelligibility” that is often placed upon the witness.30 The witness carries the responsibility of shaping their testimony so that it becomes “understandable” to the commissioners. Government workers often began their testimonies by stating “I am a pensioner” or “I am a teacher,” in a strategic attempt to position themselves as intermediaries, rather than within a commissioner/witness or Sri Lankan state/Northern Province Tamils binary framework. Take, for instance, the following testimony: 28 29

30

Killinochchi Transcripts. Pachchillapillai Divisional Secretariat Transcripts, LLRC Media Coverage and Submissions, Groundviews.org, 2010, https://drive.google.com/file/d/0Bxbk4wYolphwZGRiMDFhN2QtZGE2 Yy00ZTQ1LThmNjMtYmJjNmQzYTgxMzNj/view?ddrp=1&authkey=CKvn9ucJ&hl=en#. Saptarshi Mandal, “The Burden of Intelligibility: Disabled Women’s Testimony in Rape Trials,” Indian Journal of Gender Studies 20, no. 1 (2013): 1–29.

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Representations of (Witness 2) I am a pensioner. The problem in our country has aggravated so much because from time to time our leaders of political parties introduces or brings about proposals and solutions to the problems but again it is being contradicted or disturbed by our own politicians and our leaders. So this is the very reason why the problem is getting aggravated and dragged. The second problem is: whenever the party in power tries to settle our problem the party in the opposition protests and works against it because . . . if the problem is settled then they know they will have no future political life. So they try to oppose it and that is one of the reasons why we are in this situation. Due to this reason the frustrated Tamil youth took up the problem into their hands to settle the issues.31

The testimony made by Witness 2 provides a nuanced analysis of the Sinhalese majoritarian politics that plagued the island since independence, the context that precipitated a desire for a separate Tamil state, and the reasons why Tamil youth took up arms. As a “pensioner,” this witness identified themselves as a knowledgeable elder and as someone who has lived through decades of state violence that culminated in an armed struggle for a separate Tamil state. Witnesses such as the pensioner, who testified in the Northern Province, knew whom a government-led commission would actually recognize as a subject and of epistemological importance. Strategically positioning themselves as associated with the Sri Lankan state, such as by their receiving a government pension, these witnesses attempted to claim subjectivity and argue that their knowledge should not be discounted. Contrary to liberal notions of the individual and individualized harm, they used their very small inroads into potential subject positionality to attempt to further open up space for those the LLRC very clearly denied subjectivity of. They would testify to the plight of Tamils as a group or to the struggles of the people in their communities, or attempt to humanize the “frustrated Tamil youth” who the commissioners described as “the ugly head of terrorism” in their opening statements. Furthermore, witnesses often used their testimonies to question the authority of the LLRC and the Sri Lankan government’s reasons for holding such a commission. They questioned the postwar image projected by the government after the war, of the people in the North enjoying peace and prosperity. For instance, in the short amount of time given to Witness 4, she weaves together her personal experience of violence within the broader sociopolitical context of state oppression, and bravely criticizes the Commissioners in her testimony: 31

Pachchillapillai Divisional Secretariat Transcripts.

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Witness 4 I am a teacher. Now I am holding the post of Secretary in a women’s society. My greetings and thanks to the commission that has been appointed by His Excellency the President and those who are present here today. I have a small doubt. Now I see lorries with big posters of “Uthuru Wasanthaya” – prosperity of the North. Those lorries are going towards the North. What is the prosperity or benefit that I have got here? My son who was to appear for the GCE (OL) examination was shot by the army on the 23rd of November 2006. Today I am living with a disabled husband, and also with a daughter. My daughter could continue with her higher studies, but I am not economically sound enough to provide her with higher education, because I am living in a very backward village. But I have heard and seen many advertisements and public exhibits in the news media about providing jobs, employment. Vanni was a war torn area, but Vavuniya was not a war-torn area. Lot of people living in this area are living in poverty and they are going through a lot of suffering and trauma, but you, Commissioners, are living and able to work in AC comfort. But we do not have all those facilities. Look at the people here. They have no jobs. They are living in abject poverty here. That is the suffering we are going through here. You may help us in whatever form, but our people are going through all the difficulties. You may bring about peace and prosperity, but the sufferings, the pain, the wounds that have got well entrenched in our hearts cannot be removed.32

In the Northern Province, the LLRC was held in the backdrop of increasing militarization, particularly in the former region of the Tamil de facto state. Those who chose to testify in such a context had to negotiate between speaking and ensuring their safety against reprisals from the military for being critical of the government or voicing their desire to live in a Tamil state. As illustrated above, witnesses often decided to testify to short-term or more immediate concerns, such as detained or disappeared loved ones. The Sri Lankan media who reported on the LLRC took their testimonies to mean that those were the only concerns of the Tamils in the Northern Province. In their testimony, the Jaffna Diocesan Laity Council raise this tension when they criticize the state media and the commissioners. They point out that testimonies made under conditions of heavy militarization cannot be understood as representing the sole concerns of Tamils, their desires for the future, and what they consider to be a resolution to the decades-long grievances of Tamils that led to the desire to a separate Tamil state: 32

Chettikulam Transcripts, LLRC Media Coverage and Submissions, Groundviews.org, 2010, https://drive.google.com/file/d/0Bxbk4wYolphwY2ViMzkwZDMtNmQzOS00ZDU0LTgxZ TctODZiZDMxZjU1ZjJi/view.

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We appeal to everyone to tread the path of justice and truth, so that all feel safe and respected. It is shocking to read in the media that the Tamil people are not concerned about a political solution for the ethnic question. A wounded man definitely requires immediate first-aid, which does not preclude further treatment and recuperation. Just as a starving beggar would first ask for a meal, our people too are in such a pathetic state for their very existence that they now ask for the bare essentials of life which should not be constructed as non-concern for the distant solution or objective. It is also reported that the people in the Vanni prefer a military rule to a civilian rule. What other response can be expected from them, when they are compelled to live among security personnel themselves. The whole country is aware of the responses of persons tortured in security establishments when they are taken by the same torturers before even magistrates and doctors, when the victims know that they have to go back to with the perpetrators . . . Demilitarization and the strengthening of democratization and civilian administration are the needs of the moment with provision avenues for people’s genuine voice to be heard. Many seem to forget the spirit of noncooperation,33 disappearance of national feeling and violent armed uprising in the North-East were only crucial and unavoidable consequences of: 1. Disregard for the due rights of the Tamil speaking people 2. (Still worse) the armed and violent suppression of all democratic approaches by them to get matters rectified Even now the situation is not better but worsened in under-cover ways. The war too needs to be looked at as only an eye-opening phase of the struggle for Tamils’ rights staged by deeply aggrieved parties cornered in every way. There is also an open and dangerous tendency to brand anyone supporting or speaking out for the legitimate rights of Tamils, be they Sinhalese or Tamils, as supporters of the LTTE. We wonder whether this is not a ruse adopted to stifle the cry for the Rights of Tamils. This tendency needs to be stopped to avoid dangerous consequences.34

Witnesses challenged the Commission’s dehistoricization of the war and pointed out that the war was only the “eye-opening” phase of the struggle for Tamil rights. The commissioners were often warned that without a political solution the war would undoubtedly start again.

33 34

This is a reference to the Gandhian movement. Jaffna Diocesan Laity Council, LLRC Media Coverage and Submissions, Groundviews.org, 2010, https://drive.google.com/file/d/0Bxbk4wYolphwYTY4Nzk1ODMtMTc4ZC00NjJmLW JhYzYtM2JkNGY1OTA5NTcy/view?ddrp=1&hl=en#.

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narrating forced “placement” into the postwar state The context and the moment in which the LLRC took place are important because it took place during the resettlement of Tamils who were forcibly displaced during the war. This period is a highly significant historical period because it marked the formalization of the dismantling of the Tamil state through the placement of Tamils into a newly constructed postwar Sri Lankan nation-state. The newly constructed state was built through the military occupation of formerly LTTE-controlled regions and Tamil communities in the Northern Province. The LLRC formalized the construction of the postwar nation-state discursively by narrating this process. The LLRC drew on many of the aspects that advocates cite as being unique and important contributions truth commissions make as transitional justice programs. While a criminal tribunal would have focused on prosecuting individuals who committed war crimes, the LLRC was mandated to investigate more broadly the causes of the resurgence of war and to acknowledge the experiences of survivors, with the intention of preventing future conflict. This would presumably get to the “root” of the conflict, or at the very least the root of the failed peace talks. In their opening statements, the LLRC commissioners drew on the various liberal goals of truth commissions and transitional justice programs more broadly. They spoke of the commission’s aim of building a united, democratic nation-state where all citizens are equal regardless of their ethnicity or language, or are “children of one mother.” Logistically, it would have been easier for the commission to have set up a tribunal in Sri Lanka’s capital city of Colombo and have witnesses travel to testify. However, the commission traveled throughout the country, including difficult-to-reach war-affected areas in the Northern Province, where most of the infrastructure, including the roads, was destroyed by the war and had not yet been fully rebuilt. It was because the commission was mobile and held sittings in the Northern Province that a far-greater number of “victims” were able to testify. However, the LLRC was arranged by the Sri Lankan government, who was a party to the conflict and committed a disproportionate amount of violence during the conflict. Furthermore, the commission was held during a period of militarization of the regions where the opposing party to the conflict – the LTTE – had sympathizers, family members, and held regional control throughout the war. The LLRC took place within broader social relations with deep historical roots that were left unacknowledged by the state-led commission. The truth that the LLRC sought was very much shaped by these dynamics, and, as such, was inevitably only able to create a statesanctioned truth. The state-sanctioned truth that was being built took on

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a particular role in the LLRC’s Northern Province sittings. The population in the Northern Province had been forcibly displaced several times. Their experience of forced migration is unique, because it can be considered to be displacement between two states – the Tamil de facto state and the state of Sri Lanka. The LLRC sittings in the Northern Province took place during the government’s resettlement of Tamils who had been put into camps for internally displaced persons. While they were being resettled to the original geographic location they had been displaced from, the communities to which they returned were quite different. Most significantly, their communities, once located within the Tamil de facto state, were now under the control of the Sri Lankan government. As such, this period can be understood not only as the resettlement of displaced peoples, but also as the placement of Tamils into the Sri Lankan nation-state. The LLRC and the commission’s sittings provided a narrative framework of this process, inviting witnesses into the Sri Lankan familial fold. Despite the acute power disparities between the state commission and the war-affected Tamils in the Northern Province, witnesses resisted the postwar narrative that their testimonies were being appropriated for. At times, the act of testifying itself was a form of resistance. While the commissioners oscillated between framing the history of the conflict as being incoherent or nonexistent, witnesses inserted history into their testimonies. The aim of truth commissions is to build a narrative of the past that is based on the “truth” of survivors because it is thought that by acknowledging and legitimizing this truth will enable a nation to move forward toward a peaceful future that will not repeat past violence. However, when the primary unit of a truth commission, or transitional justice programs generally, is an unproblematized state, the truth risks entrenching oppressive state power. This is most explicit in cases such as that of Sri Lanka where the truth commission was an official state program.

references Al-Kassim, Dina. “Archiving Resistance: Women’s Testimony at the Threshold of the State.” Cultural Dynamics 20, no. 2 (2008): 167–92. Amnesty International. Unlock the Camps in Sri Lanka: Safety and Dignity for the Displaced Now, 2009. Amnesty International. “When Will They Get Justice? Failures of Sri Lanka’s Lessons Learnt and Reconciliation Commission.” Amnesty International, 2011, www.amnesty.org/en/documents/document/?indexNumber=asa37% 2F008%2F2011&language=en. Amnesty International. Locked Away: Sri Lanka’s Security Detainees, 2012.

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Amnesty International, Human Rights Watch, and International Crisis Group. LLRC Joint Letter, 2011. www.crisisgroup.org/asia/south-asia/sri-lanka/sri-l anka-crisis-group-refuses-appear-flawed-commission. An Act to Amend the Constitution of the Democratic Socialist Republic of Sri Lanka, Sixth Amendment to the Constitution, 1983, Article 157 A. Chettikulam Transcripts. LLRC Media Coverage and Submissions. Ground views.org, 2010. https://drive.google.com/file/d/0Bxbk4wYolphwY2ViMz kwZDMtNmQzOS00ZDU0LTgxZTctODZiZDMxZjU1ZjJi/view. Daly, Erin. “Truth Skepticism: An Inquiry into the Value of Truth in Times of Transition.” The International Journal of Transitional Justice 2, no. 1 (2008): 23–41. De Silva, C.R. et al. “Report of the Commission of Inquiry on Lessons Learnt and Reconciliation.” Data and Information Unit of the Presidential Secretariat, Sri Lanka, 2011. www.priu.gov.lk/news_update/Current_Aff airs/ca201112/FINAL%20 LLRC%20REPORT.pdf. French, Brigittine. “Technologies of Telling: Discourse, Transparency, and Erasure in Guatemalan Truth Commission Testimony.” Journal of Human Rights 8, no. 1 (2009): 92–109. Gunasingam, Murugar. Sri Lankan Tamil Nationalism: A Study of Its Origins. Sydney: MV Publications, 1999. Hamber, Brandon. Transforming Societies After Political Violence. New York: Springer, 2009. Hayner, Priscilla. Unspeakable Truths: Confronting State Terror and Atrocity. New York: Routledge, 2002. Hellmann-Rajanayagam, Dagmar. The Tamil Tigers: Armed Struggle for Identity. Stuttgart: Franz Steiner Verlag, 1994. Human Rights Watch. Legal Limbo: The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, 2010. Human Rights Watch. “We Will Teach You a Lesson”: Sexual Violence Against Tamils by Sri Lankan Security Forces, 2013. International Commission of Jurists. Beyond Lawful Constraints: Sri Lanka’s Mass Detention of LTTE Suspects, 2010. International Crimes Evidence Report. Island of Impunity: Investigation into International Crimes in the Final Stages of the Sri Lankan Civil War, 2014. International Crisis Group. “Sri Lanka’s North II: Rebuilding Under the Military,” 2014. International Crisis Group. “The Forever War?: Military Control in Sri Lanka’s North,” 2014, http://blog.crisisgroup.org/asia/2014/03/25/the-for ever-war-military-control-in-sri-lankas-north/. Jaffna Diocesan Laity Council. LLRC Media Coverage and Submissions. Grou ndviews.org, 2010, https://drive.google.com/file/d/0Bxbk4wYolphwYTY4Nz k1ODMtMTc4ZC00NjJmLWJhYzYtM2JkNGY1OTA5NTcy/view? ddrp=1&hl=en#.

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Kapur, Ratna. Erotic Justice: Law and the New Politics of Postcolonialism. London: The Glass House Press, 2005. Kent, Lia. “Local Memory Practices in East Timor: Disrupting Transitional Justice Narratives.” The International Journal of Transitional Justice 5, no. 3 (2011): 437. Killinochchi Divisional Secretariat Transcripts. LLRC Media Coverage and Submissions. Groundviews.org, 2010. https://drive.google.com/file/d/0Bx bk4wYolphwZGU0MzE1YWYtODIyMy00NmViLTk5NDctNmIzMjli NDBmYTFk/view?ddrp=1&authkey=COqC8_0P&hl=en#. Lanegran, Kimberly Rae. “Truth Commissions, Human Rights Trials, and the Politics of Memory.” Comparative Studies of South Asia, Africa and the Middle East 25, no. 1 (2011): 111–21. Maatram Foundation. Understanding Post-War Land Issues in Northern Sri Lanka, 2015. Malathy, N, A Fleeting Moment in My Country. Atlanta: Clarity Press, 2012. Mandal, Saptarshi. “The Burden of Intelligibility: Disabled Women’s Testimony in Rape Trials.” Indian Journal of Gender Studies 20, no. 1 (2013): 1–29. McEwan, Cheryl. “Building a Post-Colonial Archive? Gender, Collective Memory and Citizenship in Post-Apartheid South Africa.” Journal of Southern African Studies 29, no. 3 (2003): 742. Mendeloff, David. “Truth-Seeking, Truth-Telling and Postconflict Peacebuilding: Curb the Enthusiasm?” International Studies Review. 6, no. 3 (2004): 355–80. Motsemme, Nthabiseng. “The Mute Always Speak: On Women’s Silences and the Truth and Reconciliation Commission.” Public Culture 52, no. 5 (2005): 909–32. Mullaitivu Divisional Secretariat Transcripts. LLRC Media Coverage and Submissions. Groundviews.org, 2010, https://drive.google.com/file/d/0Bx bk4wYolphwYTJlZjdiZTYtZjhkNS00NGNhLWJlMGQtOTE5YWJjY WQxYWIy/view?ddrp=1&authkey=CMX664kB&hl=en#. Murray, Nancy. “The State Against the Tamils.” Race and Class 26, no. 1 (1984): 106. Nedunkerni Transcripts. LLRC Media Coverage and Submissions. Groundv iews.org, 2010, https://drive.google.com/file/d/0Bxbk4wYolphwNTQ2N GIxMGEtODhiMi00NzFkLWEzN2UtN2Y5ZWRlMGJjOTY4/view. Oakland Institute. I Speak Without Fear: Where Are Our Loved Ones Who Have Been Abducted, Arrested, and Disappeared?, 2015. Oakland Institute. The Long Shadow of War: The Struggle for Justice in PostWar Sri Lanka, 2015. Pachchillapillai Divisional Secretariat Transcripts. LLRC Media Coverage and Submissions. Groundviews.org, 2010, https://drive.google.com/file/d/

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0Bxbk4wYolphwZGRiMDFhN2QtZGE2Yy00ZTQ1LThmNjMtYmJjN mQzYTgxMzNj/view?ddrp=1&authkey=CKvn9ucJ&hl=en#. Permanent Peoples Tribunal (PPT). People’s Tribunal on Sri Lanka, 2014. Posel, Deborah. “History as Confession: The Case of the South African Truth and Reconciliation Commission.” Public Culture 20, no. 1 (2008): 122. Price, Natasha. “Integrating ‘Return’ with ‘Recovery’: Utilising the Return Process in the Transition to Positive Peace: A Case Study of Sri Lanka.” The Round Table 99 (2010): 529. Ross, Fiona. Bearing Witness: Women and the Truth and Reconciliation Commission in South Africa. Sterling, VA: Pluto Press, 2003. Stokke, Kristian, “Building the Tamil Eelam State: Emerging State Institutions and Forms of Governance in LTTE-Controlled Areas in Sri Lanka.” Third World Quarterly 27, no. 6 (2006): 1021. Tambiah, S.J. Buddhism Betrayed? Religion, Politics and Violence in Sri Lanka. Chicago: University of Chicago Press, 1992. Theidon, Kimberly. “Gender in Transition: Common Sense, Women and War.” Journal of Human Rights 6, no. 4 (2007): 453–78. UN Human Rights Council. Report of the Office of the United Nations High Commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka, 2015. Vavuniya Transcripts. LLRC Media Coverage and Submissions. Groundvie ws.org, 2010. https://docs.google.com/file/d/0Bxbk4wYolphwNGQ2OG Y1NTMtYWNiMC00NDY3LWI1ZjQtZWZjMjRlN2M5NTgy/edit? hl=en.

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7 The Right of Return in Iraq Conceptualizing Insecurity, State Fragility, and Forced Displacement Shamiran Mako and Hannibal Travis introduction Transitional justice aspires to dealing with the aftermath of large-scale international crimes perpetrated during dictatorships, in countries at war, or as a result of organized crime.1 Scholars, diplomats, politicians, activists, community leaders, and United Nations officials have long recognized the resettlement and reintegration of refugees and internally displaced persons (IDPs) as an essential pillar of transitional justice.2 In particular, the post-conflict reconstruction efforts in post-1948 Israel and Palestine, and during the post1995 era in the Balkans, prioritized the legal obligation of states to permit refugees and IDPs to return to their homes and become full members of society. Meanwhile, one of the paradoxes of transitional justice projects is that the same insecurity and ethno-religious violence that prevents national reconciliation from occurring also blocks refugees from exercising their right of return. In the case of Iraq, the targeting of ethnic and religious minorities (including Kurds, Jews, Armenians, Yezidis, Assyrian Christians, and Turkmens) has exacerbated successive waves of forced displacement, particularly in the expanding statelet officially known as the Islamic State of Iraq and

1

2

E.g., S. Parmentier, “International Crimes and Transitional Justice: Where does Organised Crime Fit?” Rivista di Criminologia, Vittimologia e Sicurezza 3, no. 3 (2009–10): 86–100; see especially 92–3, citing United Nations, General Assembly, “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 Doc. No. A/C.3/ 60/L.24, October 24, 2005. Resettlement denotes the relocation and integration of displaced persons or refugees into an alternative geographic area or environment in a third country, whereas repatriation refers to the right of refugees, IDPs, prisoners of war, or civil detainees to voluntarily return to their country of nationality as codified in various international legal instruments. See International Organization for Migration, “Key Migration Terms,” accessed July 20, 2018, www.iom.int/key-migration-terms.

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[Greater] Syria (ISIL) after its June 2014 assault on Iraq’s second largest city, Mosul, and the August 2014 offensive into western Ninewa province.3 According to late 2016/early 2017 estimates, the UN High Commissioner for Refugees (UNHCR) and the UN Office for the Coordination of Humanitarian Affairs (OCHA) place the number of Iraqi IDPs at 4.2 million and refugees at 230,000, while an estimated 15 million out of a total population of 36 million live in conflict zones and 11 million are in dire need of humanitarian assistance.4 However, the liberation of Mosul from ISIL by various Iraqi security forces since October of 2016 has resulted in the internal displacement of 370,344 people, with as many as 40,000 persons fleeing the conflict over the course of four days in May of 2017.5 As such, what is at issue here is not just thousands but millions of Iraqis being denied the right to return home since 2003. In this context, this chapter surveys the right of refugees and IDPs to return to their homes after crises of mass civilian displacement in Iraq since 2003 under both international law and Iraqi law. We examine precedents for the implementation of the right of return in Iraq, including the protections for refugees and displaced persons that are guaranteed by international humanitarian law, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Dayton Peace Agreement, the Iraqi Constitution, and the UN Guiding Principles on Internal Displacement. We contend that a highly volatile security environment resulting from the American-led invasion in 2003, coupled with the absence of transitional justice mechanisms for addressing grievances against the state, blocked full implementation of the right of return in Iraq. Instead, what ensued was the institutionalization of a highly politicized system of retribution that subverted national reconciliation and led to further communal fractionalization. These governance failures following authoritarian collapse, with the ousting of Saddam Hussein and the Ba‘th Party, fueled insecurity, ethnic conflict among Iraq’s ethno-religious groups, and forced displacement, and intensified Sunni and Shia sectarianism, which became a key driver of long-term instability in the country. A related finding is that ethno-religious persecution must be taken into account in devising programs 3

4

5

The battle against ISIL in Iraq has resulted in the liberation by Iraqi forces of the country’s largest city, Mosul, overtaken by the Islamist group in June 2014. The battle continues against ISIL; see NPR, “Iraqi Forces Retake City of Mosul from ISIS Fighters,” All Things Considered, July 10, 2017, www.npr.org/2017/07/10/536505269/iraqi-forces-retake-city-of-mosul-from-isisfighters U.N. Office for the Coordination of Humanitarian Affairs (OCHA), “Iraq-Humanitarian Needs Overview,” January 2017, http://reliefweb.int/sites/reliefweb.int/files/resources/irq_2017_hno.pdf United Nations High Commissioner for Refugees (UNHCR), “Iraq Flash Update,” May 14, 2017, www.refworld.org/country,COI,UNHCR,IRQ,591b01734,0.html

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and policies to encourage the voluntary repatriation of refugees and IDPs. Ultimately, implementing the right of return in Iraq will require a multipronged strategy to resolve the crisis of human security, protect vulnerable minority communities, and provide basic economic and political goods. It is not clear whether allowing displaced Iraqis to return to their homes, or at least to their governorates, cities, and towns will promote peace or reignite conflict. Reports have stated that homes and businesses have been taken over from the displaced, whether they were refugees or IDPs when this happened. Their return could result in a dispossessed population living in slum-like conditions or other forms of deprivation, some of whom might turn to crime or violence or be victimized in their degraded state. However, it is even less clear whether there is any other long-term solution for the displaced, with asylum and refugee resettlement systems coming under siege around the world (even though they never promised the mass relocation of millions of people). Thus, return should be considered both for the consequential justification that it may be more efficient and durable than resettlement elsewhere and for the deontological (or intrinsic) justification that return is required by our evolving notions of justice in post-conflict situations.6

origin and recognition of the right of return The right of return as a legal principle gained traction as a result of the international response to the Palestinian refugee crisis precipitated by the Second World War and the creation of the state of Israel in 1948.7 On a normative level, the right of return recognizes the immorality of mass displacement, and establishes as a remedial framework the protection of the displaced from violence, further infringements of their human rights, hunger, and disease. Moreover, the right of return is an essential component of intercommunal reconciliation in post-conflict states. It is therefore a pillar of transitional justice. Over the years, various international, regional, and national treaties regarding forced displacement have recognized the right of 6

7

E.g., “Declaration of the Allied Nations against Acts of Dispossession Committed in Territories Under Enemy Occupation or Control,” January 5, 1943, 8 Department of State Bulletin 21 (1943); L. May and E. Edenberg, (2013) “Introduction,” in Jus Post Bellum and Transitional Justice, edited by L. May and E. Edenberg (Cambridge: Cambridge University Press, 2013), 4–5; D. Orentlicher (2005) “Report of the Independent Expert to Update the Set of Principles to Combat Impunity, Addendum,” 18 February 2005, U.N. Doc. No. E/CN.4/2005/102/Add.1; R. Teitel, Transitional Justice. (Oxford: Oxford University Press, 2002), ch. 4. U.N. General Assembly. 194 (III) Progress Report of the United Nations Mediator, 1984, accessed July 20, 2018, https://unispal.un.org/DPA/DPR/unispal.nsf/0/C758572B78D1 CD0085256BCF0077E51A.

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return,8 despite the fact that very few successful examples have been recorded since the Second World War.9 The Hague Convention of 1899 and the Hague Regulations of 1907 codified the right of return within international humanitarian law.10 However, these were somewhat basic in their coverage. The postwar articulation of the right of return is traceable to three pivotal documents, namely the Universal Declaration on Human Rights, the Fourth Geneva Convention, and UN General Assembly Resolution 194 III relating to the creation of the state of Israel in 1948. Article 13 of the Universal Declaration of Human Rights of 1948 stipulated that “everyone has the right to freedom of movement and residence within the borders of each state,” and that “everyone has the right to leave any country, including his own, and to return to his country.”11 Article 49 of the Fourth Geneva Convention prohibited individual or mass transfers of population, the evacuation of persons for military or security reasons from their homes for any period longer than necessary for those reasons, and the transfer of parts of an occupying power’s own civilian population into a territory it occupies.12 Finally, Resolution 194 III enunciated the role of the UN Mediator on Palestine and enumerated key UN policy objectives regarding political, economic, and social development of the region. Concerning resettlement of refugees from the Israel-Palestine conflict, the Resolution affirmed that 8

9

10

11

12

See, for instance, the 1951 Convention on Refugees and its Protocol; Article 12 of the International Covenant on Civil and Political Rights; Article 5(d)(ii) of the International Convention on the Elimination of All Forms of Racial Discrimination; the 1998 UN Guiding Principles on Internal Displacement; the African Charter on Human and Peoples’ Rights; the European Convention for the Protection of Human Rights and Fundamental Freedoms; Article 22 of the Arab Charter on Human Rights; and the 1995 Dayton Peace Agreement for Eastern Europe. For example, many Ottoman Christians never returned to what is now Turkey or Syria after the atrocities of the First World War period, many European Jews could not return to their homes or businesses even if they survived the Holocaust, some Germans expelled from Eastern Europe by Soviet or pro-Soviet forces in the latter stages of the Second World War or during the postwar period could or would not return, and so forth. See, e.g., Alfred De Zayas, A Terrible Revenge: The Ethnic Cleansing of the East European Germans, 1944–50 (New York: Saint Martin’s Press, 1994); Alexis Demirdjian, ed., The Armenian Genocide Legacy (New York: Palgrave Macmillan, 2016); Tony Kushner and Katherine Knox, eds., Refugees in the Age of Genocide: Global, National and Local Perspectives during the Twentieth Century (London: Frank Cass, 1999). International Court of Justice (2005) Democratic Republic of Congo v. Uganda, Judgment of December 19, 2005, ICJ Reports 2005: 231. U.N. Office of the High Commissioner for Human Rights, “Universal Declaration of Human Rights,” 1948, www.un.org/en/documents/udhr/ International Committee of the Red Cross, “Geneva Convention Relative to the Protection of Civilian Persons in Time of War” (Fourth Geneva Convention), Article 49, August 12, 1949, www.refworld.org/docid/3ae6b36d2.htm.

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the 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.13

Within the same clause, the Office of the UN Mediator instructed the Conciliation Commission to “facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief for Palestine Refugees and, through him, with the appropriate organs and agencies of the United Nations.”14 Here, the right of return emerged as a norm requiring the international law regime to address the plight of Palestinian refugees and their repatriation to their homes. In this regard, Resolution 194 III set an international precedent for the treatment of refugees resulting from war, military occupation, and ethno-religious strife. Subsequent international instruments have included similar provisions relating to the right of return. Article 26 of the 1951 Convention on Refugees and its 1967 Protocol delineated the necessary measures for the treatment of refugees fleeing their country due to conflict and fear of persecution, including the right to choose one’s place of residence subject to any regulations applicable to all aliens.15 Article 12 of the International Covenant on Civil and Political Rights also affirmed that “everyone, lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence . . . and everyone shall be free to leave any country, including his own.”16 Similarly, Article 5(d)(ii) of the International Convention on the Elimination of All Forms of Racial Discrimination stated that everyone has “the right to leave any country, including one’s own, and to return to one’s country” without discrimination on any grounds, including race, colour, or national or ethnic origin.17 Furthermore, the 1998 UN 13

14 15

16

17

U.N. General Assembly, “194 (III) Progress Report of the United Nations Mediator,” 1948, https:// documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/043/65/IMG/NR004365.pdf? OpenElement Ibid. UNHCR, “Convention Relating to the Status of Refugees”, 1951, www.unhcr.org/en-us/ 3b66c2aa10 U.N. Office of the High Commissioner for Human Rights (UNHCHR), “International Covenant on Civil and Political Rights,” 1966, www.ohchr.org/EN/ProfessionalInterest/Page s/CCPR.aspx UNHCHR, “International Convention on the Elimination of All Forms of Racial Discrimination,” 1965, www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx

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Guiding Principles on Internal Displacement emphasized the role that governments and other authorities must assume in enabling IDPs to “return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country,” and in ensuring that “special efforts [are] made to ensure the full participation of [IDPs] in the planning and management of their return or resettlement and reintegration.”18 These international mechanisms inspired various regional and national provisions modeled upon them, such as the African Charter on Human and Peoples’ Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms.19 Moreover, Article 22 of the Arab Charter on Human Rights stipulates that “no citizen shall be expelled from his country or prevented from returning thereto.”20 Similarly, the 1995 Dayton Peace Agreement created a cohesive framework for managing displacement in several new multiethnic states, namely Bosnia and Herzegovina, Croatia, and Serbia. As an international agreement with limited participation, the Dayton Peace Accords provided a noteworthy framework for refugee and IDP repatriation following armed conflicts and prescribed several necessary requirements for maintaining peace and cooperation in post-conflict states. Article I of Annex 7, relating to the Agreement on Refugees and Displaced Persons, stipulated: All refugees and displaced persons have the right freely to return to their homes of origin. . . . The early return of refugees and displaced persons is an important objective of the settlement of the conflict in Bosnia and Herzegovina. The Parties confirm that they will accept the return of such persons who have left their territory, including those who have been accorded temporary protection by third countries. . . . The Parties shall ensure that refugees and displaced persons are permitted to return in safety, without risk of harassment, intimidation, persecution, or discrimination, particularly on account of their ethnic origin, religious belief, or political opinion.21

18

19

20

21

UNHCHR, “Guiding Principles on Internal Displacement,” www.unhcr.org/en-us/protec tion/idps/43ce1cff2/guiding-principles-internal-displacement.html Howard Adelman and Elazar Barkan, No Return, No Refuge: Rites and Rights in Minority Repatriation (New York, Columbia University Press, 2011), 124–25. “Arab Charter on Human Rights,” Univeristy of Minnesota Human Rights Library, May 22, 2004, http://hrlibrary.umn.edu/instree/loas2005.html. Organization for Security and Cooperation in Europe, “Dayton Peace Agreement,” December 14, 1995, www.osce.org/bih/126173.

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Indeed, many parallels exist between the origins and dynamics of ethnic and religious strife in the former Yugoslavia and Iraq.22 Exacerbated by the American-led invasion and subsequent occupation of Iraq in 2003, the articulation of the conflict along communal fault lines has resulted in ethnic cleansing, demographic manipulation, expulsion, and genocide of Iraq’s majority and minority communities.23 While variations exist between the former Yugoslavia and Iraq, the aforementioned agreement nevertheless provides a useful framework of principles for refugee and IDP returns in post-2003 Iraq. Here, the right of return is used normatively to include the human right to choose one’s residence and move around one’s country, and to leave a country from which one has temporarily fled due to violence, as codified by the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights. Despite continuing controversies regarding whether the full exercise of the right of return is practical in post-conflict regions such as Israel post-1948 or Bosnia and Herzegovina post-1995, there is no basis to impose arbitrary limitations on the right of return in the Iraqi context, or to define the nature of these limitations prior to a final settlement of the Israeli and Bosnian cases, which remain under UN investigation.24

transitional justice and the right of return in post-2003 iraq Prior to the invasion, the March 2003 Report of the Working Group on Transitional Justice in Iraq and the Iraqi Jurists’ Association stipulated that victims of the Ba’th regime who were forced into exile should receive 22

23

24

See, e.g., Hannibal Travis, “The United Nations and Genocide Prevention: The Problem of Racial and Religious Bias,” Genocide Studies International 8, no. 2 (Fall 2014): 122–52, 130–37, 145–46. Ibid., 127–28, 132; Hannibal Travis, “Why Was Benghazi ‘Saved,’ But Sinjar Allowed to Be Lost? New Failures of Genocide Prevention, 2011–2015,” Genocide Studies International 10, no.2 (Fall 2016): 139–82. United Nations Security Council (UNSC), Resolution 1850, December 16, 2008, www.security councilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20SRE S1850.pdf; Radio Free Europe/Radio Liberty, “Bosnia Envoy Says Reforms Stalled Over Ethnic Divisions,” November 21, 2010, www.rferl.org/content/Bosnia_Envoy_Says_Reforms_Stalled_Ov er_Ethnic_Divisions/2217998.htm; UNSC, Resolution 2315 “The Situation in Bosnia and Herzegovina,” November 8, 2016, http://unscr.com/en/resolutions/2315; UNSC, Resolution 2334 “The Situation in the Middle East Including the Palestinian Qustion,” December 23, 2016, http:// unscr.com/en/resolutions/2334. See also UNSC, “Republic of Serbia, Security Council Meeting Agenda Item: Bosnia and Herzegovina,” May 5, 2016, www.un.int/serbia/statements_speeches/se curity-council-meeting-agenda-item-situation-bosnia-and-herzegovina-statement.

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compensation and reparations for confiscated property as a result of displacement, exile, and other unjust decrees.25 Similarly, the post-Ba’thist state reformation plan reiterated in great detail the importance of establishing a truth and reconciliation commission as a state-building mechanism for addressing citizens grievances against the former regime and of reforming the country’s Citizenship Law of 1963, which had been used as a political tool to denaturalize citizens resulting in their expulsion, by offering the following remedial frameworks: I. Repeal of all unjust provisions in the Iraqi Citizenship Law concerning denaturalization for political reasons, and the reformulation of these articles according to civilized foundations and concepts consistent with international covenants and charters and the Universal Declaration of Human Rights; II. Granting of deportees and emigres the right to return to the homeland and to claim their citizenship rights, their moveable and immoveable property, and compensation for all damages that they incurred as a result of the regime’s practices; III. Settlement of the status of Iraqi deportees and emigres who acquired foreign citizenship after being forcibly expelled. This should be done according to reasonable criteria to ensure their return to Iraq and the contribution to its reconstruction; IV. Granting of full powers to the judiciary to supervise all application of the Iraqi Citizenship Law.26 Against this background, the 2003 invasion, occupation, and subsequent administration of the country under the Coalition Provisional Authority (CPA) produced a massive governance overhaul through the formation and transformation. The United States, assisted by an Iraqi Governing Council and later a constitutional council and an elected government as well as the United Nations, developed new governance structures and institutions with an emphasis on transitional justice, particularly for those affected by Saddam Hussein’s crimes. From the outset, CPA Order Number 4 facilitated the Establishment of the Iraqi Property Reconciliation Facility, which sought to reconcile property claims of previously displaced persons resulting from Ba’thist Arabization policies.27 In addition, the establishment of the Ministry

25

26 27

United States Department of State (USDS), The Future of Iraq Project, March 2003, http:// nsarchive2.gwu.edu//NSAEBB/NSAEBB198/FOI%20Transitional%20Justice.pdf, 13. Ibid., “Appendix W (No. 28A-C) Nationality: The Iraqi Citizenship Law.” Stefan Talmon, The Occupation of Iraq, vol. 2 (Oxford: Hart Publishing, 2013), 13.

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of Displacement and Migration by CPA Order Number 50 in January 2004 affirmed the importance of refugee and IDP returns to state-building and transitional justice in post-2003 Iraq by “recognizing that the return, relocation and reintegration of refugees and internally displaced persons (IDPs) is vital to Iraq’s social and political stability.”28 Its key function has been the administration of issues concerning “Iraqi refugees and displaced persons, including but not limited to matters associated with their repatriation, relocation, resettlement, and reintegration.”29 Furthermore, the right of return is clearly enshrined in Article 44 of the Iraqi Constitution of 2005, which guarantees that “No Iraqi may be exiled, displaced, or deprived from returning to the homeland.”30 As a remedial effort to encourage repatriation, the then prime minister Nouri al-Maliki issued Order 101 in 2008, which enabled refugees to return to their cities and towns and to regain possession of their homes even when already occupied by others.31 In reality, however, while the Iraqi Constitution and Order 101 reflect a concerted effort to implement the right of return for displaced Iraqis, political indicators depict a consistent and increasing pattern of flight since 2005 resulting from widespread ethno-sectarian violence and growing economic disparities. The scale of Iraq’s current refugee and IDP crisis is directly linked to the 2003 occupation.32 The right of return in Iraq has been a neglected subject as both Iraq’s leaders and their international partners have focused on issues of military and economic stability, rather than compliance with international law and humanitarian outcomes of the occupation. Notwithstanding the institutional, legislative, and legal measures taken since 2003, two principal challenges have obstructed the exercise of the right of return within the framework of post-conflict reconstruction and national reconciliation in Iraq. First, the country’s security environment obstructs the implementation of both international and Iraqi law relating to Iraqi refugees and IDPs. Second, and closely linked to the security crisis, is the intensification of group grievances and communal-based violence, which has contributed to both collective and individual flight. These factors are particularly significant as they 28 29 30

31

32

Ibid., 253. Ibid. “Constitution of the Republic of Iraq,” RefWorld, October 15, 2005, www.refworld.org/docid/ 454f50804.html. U.N. Assistance Mission for Iraq (UNAMI), 2010 Report on Human Rights in Iraq, January 2011, www.ohchr.org/Documents/Countries/IQ/UNAMI_HR%20Report_1Aug11_en.pdf “Over One Million Iraqi Deaths Caused by US Occupation,” Project Censored, accessed July 20, 2018, http://projectcensored.org/1-over-one-million-iraqi-deaths-caused-by-us-occupa tion/; David Enders, “Iraq’s Uncertain Future,” The Independent, January 3, 2012, http://puli tzercenter.org/reporting/iraq-united-states-military-withdrawl-future-displacement-kurds-eco nomy-sectarian-conflict.

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table 1 Fragile State Index Ranking for Iraq, 2005–2016 Year DP

REF GG HF

UED ECO SL

PS

HR

SEC FE

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

9.4 8.3 9.0 9.0 8.9 8.7 9.0 8.5 8.8 8.5 8.9 9.4

8.7 8.7 8.5 8.5 8.6 8.8 9.0 8.7 8.4 8.1 7.8 7.5

8.9 8.3 8.5 8.5 8.4 8.4 8.0 7.8 7.6 7.7 7.5 7.8

8.2 9.7 9.7 9.6 9.3 9.1 8.6 8.3 8.6 8.7 8.9 8.9

8.4 10.0 10.0 9.8 9.7 10 10.0 9.8 10.0 9.9 9.8 10 9.7 9.6 10.0 9.5 9.6 9.5 9.5 9.6 9.3 9.9 9.6 9.0 10.0 9.6 8.5 10.0 9.6 7.9 10.0 9.6 9.4 10.0 9.6 9.7

8.0 8.9 9.0 9.0 8.7 8.5 8.3 8.0 8.3 8.0 8.2 8.1

8.3 9.8 10.0 9.8 9.7 9.3 9.0 9.7 10.0 10.0 10.0 9.8

6.3 9.1 9.5 9.3 9.1 9.3 8.9 8.6 8.3 8.0 8.1 7.9

8.2 8.2 8.0 7.8 7.6 7.6 7.0 7.7 7.3 7.0 6.9 6.8

8.8 8.5 9.4 9.4 9.0 9.0 8.7 8.4 8.6 8.7 9.2 9.2

EXT Total 103.2 109.0 111.4 110.6 108.6 107.3 104.8 104.3 103.9 102.2 104.5 104.7

Source: Fund for Peace, Fragile States Index. Data available at: http://fsi.fundforpeace.org/data Note: Rankings are placed on a scale of 0–10, 0 being very sustainable and 10 being on high alert. Total denotes the country’s comparative global ranking among other states. The full, nonabbreviated indicator categories are: Demographic Pressures (DP); Refugees and IDPs (REF); Group Grievances (GG); Human Flight and Brain Drain (HF); Uneven Economic Development (UED); Poverty and Economic Decline (ECO); State Legitimacy (SL); Public Services (PS); Human Rights and Rule of Law (HR); Security Apparatus (SEC); Fractionalized Elites (FE); External Intervention (EXT).

have come to define the continuing climate of violence and political instability in post-Saddam Iraq. As demonstrated in Table 1, insecurity and communal/group fractionalization have remained steadily high from 2005 to 2016, peaking in 2007 during the height of Iraq’s sectarian conflict and, more recently, since ISIL’s takeover of swaths of territory in June 2014.

insecurity and return as patterns of iraqi history The founding of the Iraqi state in 1920 began with a refugee problem, when British colonial administrators settled 35,000 Assyrian Christians fleeing persecution in Persia and Turkey, and 15,000 other refugees from those lands, in the nascent state.33 Tens of thousands of Jewish Iraqis fled for Israel after massacres and persecutions in the 1930s and 1940s.34 Similarly, Iraq’s

33

34

Frank Alexander Ross and O. Caldwell, The Near East and American Philanthropy (New York: Columbia University Press, 1929), 178–79. Carole Basri, “The Jewish Refugees from Arab Countries: An Examination of Legal Rights – A Case Study of the Human Rights Violations of Iraqi Jews,” Fordham International Law Journal 26 (2003): 656–85.

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table 2 Refugee and IDP Figures from 2005 and 2010 UNHR Global Reports Figure

2002–2005

2006–2010

2011–2015

Refugees* from Iraq in neighboring states IDPs in Iraq

421,000 600,000

1,750,000 1,982,000

1,011,320 11,417,963

* Persons of Iraqi origin of concern to UNHCR. Source: UNHCR Global Report, 2002–2010, UNHCR Global Trends, 2011–2015: www.unhcr.org/en-us/the-global-report.html, accessed 20 July 2018.

persecution of its Kurdish population contributed to hundreds of thousands of displaced persons in the 1970s, 1980s, and 1990s.35 Up to five million people had become refugees or IDPs by 1991 in the aftermath of the First Gulf War and the subsequent Shi’a and Kurdish uprisings.36 By late 2002 and prior to the March 2003 invasion, the UNHCR predicted that 1.3 million people would seek asylum in event of war.37 Another UN estimate warned of 900,000 refugees and two million IDPs resulting from violence, destruction of urban centers, and loss of access to food and other necessities, among other factors.38 Since the 2003 invasion, the UNHCR reported a sharp rise in Iraqi refugees and IDPs, corresponding with the spike in violence levels between 2006 and 2007. These numbers were rising sharply again in 2011–15 just prior to and following ISIL’s advancement into the country, as shown in Table 2. A major obstacle to the return of refugees and IDPs to their homes has been an increasingly volatile security environment described on occasion as among the worst in the world during the current decade.39 Albrecht Schnabel and Hans-Georg Ehrhart posit that the progress of post-conflict peace-building in transitional societies is linked to the rebuilding of political institutions, 35

36

37

38

39

British Refugee Council, “Aftermath of the Gulf Crisis: Stateless People and Returned Migrants,” in Hidden Casualties: Environmental, Health, and Political Consequences of the Persian Gulf War, ed. Saul Bloom, et al. (Berkeley, CA: Arms Control Research Center, 1994), 230; Human Rights Watch, Genocide in Iraq: The Anfal Campaign Against the Kurds (New York: Human Rights Watch, 1993); Kanan Makiya, Republic of Fear: The Politics of Modern Iraq (New York: Pantheon Books, 1990). Judith Miller, “Displaced in the Gulf War: 5 Million Refugees,” The New York Times, 16 June 1991, www.nytimes.com/1991/06/16/weekinreview/the-world-displaced-in-the-gulf-wa r-5-million-refugees.html U.N. Inter-Agency Planning Committee, “UN Inter-Agency Humanitarian Preparedness and Response Plan,” 20 December 2002, www.casi.org.uk/info/undocs/iasc021220.pdf. United Nations (Agency Unknown), “Likely Humanitarian Scenarios,” 10 December 2002, www.casi.org.uk/info/undocs/war021210.html. Zena Tahhan, “Iraq Humanitarian Crisis ‘One of the World’s Worst,’” Al Jazeera, 12 May 2016. www.aljazeera.com/news/2016/05/iraq-humanitarian-crisis-world-worst-160511045944163 .html.

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security, and economic structures.40 In the context of humanitarian intervention, the restoration and provision of security is often stated as a precondition for delivering assistance to displaced persons. Human and material losses stemming from violence-induced insecurity in conflict situations often deter the entry of international aid and relief agencies to conflict zones, or lead to their partial or total withdrawal from the country.41 Such losses also amplify individual and communal grievances, resulting in an escalation of violence. From the early period of the occupation in March 2003, the Iraqi Ministry of Displacement and Migration stressed insecurity as an impediment to the implementation of the right of return: “Insecurity in some parts of Iraq and the withdrawal of UN international staff has slowed critical humanitarian assistance and the implementation of return and reintegration activities.”42 Although signs of improvement surfaced in the later period of the occupation in late 2003 and early 2004, insecurity remained a contributing factor to the displacement trends. The presence of American and allied forces in Iraq, initially without a clear legal basis, then pursuant to Security Council resolutions starting in May 2003, and finally under a status of forces agreement with Iraq, failed to prevent campaigns of massacre and torture against identifiable ethnic and religious groups.43 Fastforwarding to 2017, the fragile and highly divided condition of the country’s domestic security apparatus remains a primary obstacle to the return of Iraq’s displaced. In the early stages of the occupation, this was exacerbated by the dissolution of the Iraqi Army under CPA Order Number 2 on the Dissolution of Entities, which included the Iraqi Army, Air Force, Navy, and Air Defence Force, among other national security apparatuses.44 Despite reports of repatriation resulting from improvements in the security situation, in its 2011 Human Rights Report on Iraq, the United Nations Assistance Mission for Iraq (UNAMI) warned that “for IDPs as well as returnees, the continued insecurity, destruction of occupation of housing, lack of access to livelihoods and basic services present 40

41

42

43

44

Albercht Schnabel and and Hans-Georg Ehrhart, “Post-Conflict Societies and the Military: Challenges and Problems of Security Sector Reform,” in Security Sector Reform and PostConflict Peacebuilding, ed. Albrecht Schnabel and Hans-Georg Ehrhart (New York: United Nations University Press, 2005), 1–16. OHCA, No Refuge: The Challenge of Internal, 2003, http://repository.un.org/handle/11176/ 37655. CPA, “Coalition Authority Order No. 50: Ministry of Displacement and Migration,” 8 May 2004, http://govinfo.library.unt.edu/cpa-iraq/regulations/20040112_CPAORD50_MO DM.pdf. UNSC, Resolution 1483, 22 May 2003, https://documents-dds-ny.un.org/doc/UNDOC/GEN/ N03/368/53/PDF/N0336853.pdf?OpenElement; Erika Goode and Suadad Al-Salhy, “Violence in Mosul Forces Iraqi Christians to Flee,” The New York Times, 10 October 2008, www.nytimes.com/2008/10/11/world/middleeast/11iraq.html. Talmon, The Occupation of Iraq, 54–56.

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significant obstacles to sustainable return and reintegration.”45 Furthermore, armed conflict between Iraqi Security Forces and insurgents has continued throughout the last decade.46 In its 2008 review, the International Organization for Migration identified insecurity as the key factor for displacement in Iraq, with 37 percent of those displaced citing direct threats to life as the primary cause of flight and 23 percent citing concerns about generalized violence.47 While operating under different dynamics, conventional armed forces, paramilitary, and militia personnel are often linked to previous military personnel in states in transition.48 Resettlement camps and the creation of geographic pockets homogenized along ethnic and sectarian lines often become breeding grounds for militia recruitment. In such cases, refugees and IDPs become increasingly receptive to political manipulation by extremists and militant groups, and may themselves become a direct threat to the overall security environment.49 Economic and social insecurity also inhibit the return of refugees and IDPs, as infrastructure and capacity building agencies struggle to sustain the demands and pressures accompanying returnees. In drawing comparisons between Bosnia and Iraq, Rhodri C. Williams contends that fundamental preconditions to facilitating return of displaced Iraqis is the provision of minimal “security and significant formal, financial, and resource commitments from the parties to the conflict.”50 The initial surge of returnees is aggravating persistent existing socioeconomic grievances as communities struggle to cope with the shortage of essential services. Such “large spontaneous returns present the possibility of conflict between returning IDPs and those who may have occupied their homes,” and “fuel demands on government services that are stressed and inadequate.”51 Iraq has 45 46

47

48

49 50

51

UNAMI, “2010 Report on Human Rights in Iraq,” January 2011, www.ohchr.org/Documents/ Countries/IQ/UNAMI_HR%20Report_1Aug11_en.pdf. Jose´ Riera and Andrew Harper, “Iraq: the Search for Solutions,” Forced Migration Review Special Issue, June 2007, www.fmreview.org/sites/fmr/files/FMRdownloads/en/FMRpdfs/Iraq/ full.pdf. International Organization for Migration (IOM), “Iraq Displacement and Return 2008 MidYear Review,” accessed 20 July 2018, https://reliefweb.int/sites/reliefweb.int/files/resources/29 5B8AC6F4229EE58525748900671ED8-Full_Report.pdf Diane E. Davis, “Contemporary Challenges and Historical Reflections on the Study of Militaries, States, and Politics,” in Irregular Armed Forces and Their Role in Politics and State Formation, ed. Diane E. Davis and Anthony W. Pereira (New York: Cambridge University Press), 5–34. Sarah Kenyon Lischer, “Security and Displacement in Iraq: Responding to the Forced Migration Crisis,” International Security 33, no. 2 (2008): 95–119, 99–100. Rhodri C. Williams, “Applying the Lessons of Bosnia in Iraq: Whatever the Solution, Property Rights Should be Secured,” 8 January 2008, www.brookings.edu/research/applying-the-les sons-of-bosnia-in-iraq-whatever-the-solution-property-rights-should-be-secured/ Department of Defence, Measuring Security and Stability in Iraq, 2008, www.globalsecurity .org/military/library/report/2008/iraq-security-stability_mar2008.pdf.

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repeatedly cut back on the food subsidies guaranteed by the government prior to 2003, with food support so incomplete as to satisfy less than 51 percent of human nutritional requirements in 2010.52 Thousands of families were internally displaced as a result of a climate change–related drought, exacerbated by conflictrelated damage to Iraq’s irrigation infrastructure, which has not been materially repaired since 2003.53 The CPA and others have long known that the reform of the Iraqi security establishment would necessarily entail an overall restructuring and strengthening of the institutional capacity of government actors and agencies responsible for the provision of security in order to create a favorable environment for returnees.54 This includes both military and paramilitary forces, intelligence services, police forces, border guards and customs services, judicial and penal systems, and civil structures that are responsible for security management and oversight.55 With a reformed administration seen as legitimate and representative to the leaders of communities that had become suspicious of one another, and some of whose members had committed unforgivable acts against members of the others, conflict might wane and human security eventually might be introduced. Under circumstances of weak governance, factions in conflict, and widespread atrocities and displacement, however, the aspirations of transitional justice advocates could not begin to be realized.

ethnic fragmentation and repatriation In transitional societies, the security sector often defines the sphere and extent to which transformation can take place.56 For Iraq, the ongoing climate of 52

53 54

55

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United Nations Integration Regional Information Networks (IRIN), “Iraq 2010 Humanitarian Action Plan,” 2011, www.humanitarianresponse.info/en/programme-cycle/space/document/h umanitarian-action-plan-iraq-2010, 18; UN IRIN, “Iraq: Government to Cut Items from Its Free Food Handout,” 4 December 2007, www.irinnews.org/news/2007/12/04/government-cutitems-its-free-food-handouts. Ibid., 17. Paul L. Bremer and Malcolm McConnell, My Year In Iraq: The Struggle to Build a Future of Hope (New York: Simon & Schuster, 2006), 127–28, 182–83, 223–24, 236; CPA, Ministry of Displacement and Migration, accessed 20 July 2018, http://govinfo.library.unt.edu/cpa-iraq/r egulations; U.S. House of Representatives, Committee on Armed Services, Subcommittee on Oversight & Investigations, “Stand Up and Be Counted: The Continuing Challenge of Building the Iraqi Security Forces,” June 2007, http://oai.dtic.mil/oai/oai?verb=getRecord& metadataPrefix=html&identifier=ADA469528, 13–14, 54–55, 59–60, 80–85. Schnabel and Ehrhart, “Post-Conflict Societies,” 1–16; USDS, Future of Iraq Project, 10–25; US House of Representatives, “Stand Up and Be Counted.” See, for example, Paul Jackson, “Security Sector Reform and Statebuilding,” Third World Quarterly 32, no. 10 (2011): 1803–22; Robin Luckham, “Democratic Strategies for Security in Transition and Conflict,” in Governing Insecurity, ed. Gavin Cawthra and Robin Luckham

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insecurity contributed to the escalation of other violent conflicts, as ethnic and religious fragmentation intensified, causing outbreaks of intercommunal clashes and provoking widespread involuntary displacement. The hardening of ethnic and religious strife has defined post-2003 Iraq, as tensions between Iraq’s primary ethnic and religious groups created an unprecedented surge of ethno-sectarian violence. The course of the occupation has reinforced ethnosectarian cleavages and deep-seated communal hostilities, leaving little room for the development and application of a cohesive multilevel strategy for voluntary repatriation. In its 2003 report on Preliminary Repatriation and Reintegration Plan for Iraq, the UNHCR stressed the importance of defusing ethnic and religious conflict in facilitating and sustaining repatriation.57 Similarly, the United Nations Assistance Mission to Iraq (UNAMI) has warned of political intimidation resulting from territorial claims rooted in ethnic and sectarian tensions, and noted in its 2010 Iraq human rights report that “in and around Kirkuk UNHCR received reports of harassment and detention of IDPs, allegedly in an attempt to engineer shifts of population and political power in this disputed area before the holding of a planned national census that was scheduled to take place in December but which has been postponed.”58 Such campaigns of harassment impeded the reintegration process for refugees and IDPs in Kirkuk and threatened humanitarian efforts aimed at addressing the country’s massive displacement crisis. Prior to the invasion, it was well known that the Sunni Arab–dominated regime of Saddam Hussein had practiced the systematic murder and torture of civilians of all ethnicities, especially Kurds and Shi’a Arabs.59 During the transition, however, Iraq’s security forces frequently murdered suspected former regime loyalists, usually without holding trials.60 Consequently, police torture and cruelty became commonplace, particularly as Shi’a militias infiltrated the Ministry of the Interior and used their position to perpetrate

57

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(London: Zed Books, 2003), 1–28; Ho-Won Jeong, Peacebuilding in Postconflict Societies (Boulder: Lynne Rienner Publishers, 2005); Barnett R. Rubin, “The Politics of Security in Postconflict Statebuilding,” in Building States to Build Peace, ed. Charles T. Call and Vanessa Wyeth (Boulder: Lynne Rienner Publishers, 2008), 25–48. UNHCR, “Preliminary Repatriation and Reintegration Plan for Iraq,” April 2003, www.unh cr.org/en-us/news/briefing/2003/4/3ea938204/iraq-unhcrs-preliminary-repatriation-reintegra tion-plan.html. U.N. Assistance Mission for Iraq, “Report on Human Rights in Iraq,” January 2011, www.oh chr.org/Documents/Countries/IQ/UNAMI_HR%20Report_1Aug11_en.pdf U.S. Department of State, Bureau of Democracy, Human Rights and Labor, “Country Reports on Human Rights – Iraq 2004,” February 28, 2005, www.state.gov/j/drl/rls/hrrpt/2004/41722.htm U.S. Department of State, Bureau of Democracy, Human Rights and Labor, “Country Reports on Human Rights – Iraq 2005,” March 8, 2006, www.state.gov/j/drl/rls/hrrpt/2005/61 689.htm

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table 3 Returns of Refugees and IDPs Reported by UNHCR, 2007–2015 Figure

2007

Refugee Returns IDP Returns

38,000 45,400 25,600 28,900 67,089 82,270 60,881 10,908 5,921

2008

2009

2010

2011

2012

2013

2014

2015

323,700 167,700 195,500 36,000 193,610 218,800 63,270 19,967 1,747

Sources: UNHCR Global Reports, 2007–2015, www.unhcr.org/ [Accessed July 28, 2017]

“extralegal killings” of Sunni Arabs.61 By 2007, the US State Department noted: “Bomb attacks by Sunni terrorist groups against the government and densely populated Shi’a areas were common and frequently prompted retaliatory attacks by Shi’a militias. Executions of military-age Sunni males became common.”62 Thus, shortly following the invasion, internal elites and external actors had mobilized and capitalized on intercommunal divisions and grievances to foment further violence. Exercise of the right of return in Iraq is somewhat of a new trend. Many of the displaced Iraqis have only relatively recently begun to return home. The number of refugees and IDPs assisted in returning closer to home was greatest in 2007–2008, as illustrated by Table 3. However, a UNHCR poll conducted between 2007 and 2008 found that 61 percent of returnees regretted their decision to repatriate, due to insecurity, personal safety concerns, poverty, and economic hardship.63 While the UNHCR has reported large flows of returning refugees and IDPs since 2007, refugee and IDP returns slowed dramatically in 2009 as violent attacks against ethnic and religious communities continued or escalated. This renewed insecurity is exemplified by the systematic targeting of Assyrians in Mosul, whereby more than 2,200 families, numbering approximately 13,000 Assyrian Christians, fled Mosul due to a surge of violence, death threats, and intimidation over a twoweek period in October 2008.64 Similarly, the outburst of targeted violence toward Christians in 2010 led to further displacement of one of Iraq’s most vulnerable

61

62 63

64

Ibid; U.S. Department of State, Bureau of Democracy, Human Rights and Labor, “Country Reports on Human Rights – Iraq 2006,” March 6, 2007, www.state.gov/j/drl/rls/hrrpt/2006/78 853.htm Ibid. UNHCR, “UNHCR Poll Indicates Iraqi Refugees Regret Returning Home,” October 19, 2010, www.unhcr.org/en-us/news/latest/2010/10/4cbdab456/unhcr-poll-indicates-iraqi-refugees-regr et-returning-home.html “Iraqi Christians Flee Mosul After Death Threats: U.N.,” Reuters, October 24, 2008, www.reuters .com/article/idUSLO387557; see also C. Chapman, “Improving Security for Minorities in Iraq,” Minority Rights Group/ReliefWeb, June 2012, www.refworld.org/docid/528497244.html, 2.

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minority communities, resulting in the internal displacement of an estimated 866 Christian families from Mosul.65 As al-Qaeda occupied significant portions of Mosul, extreme insecurity outside the main roads, rampant killings, and mass displacements became prevalent, and tens of millions of dollars in annual revenues were plundered by extortion as a sort of informal taxation.66 The subsequent ISIL takeover of Mosul and surrounding territories then resulted in the systematic targeting of ethnic and religious communities through ethnic cleansing, genocide, sexual enslavement, and cultural heritage destruction of Yazidis, Assyrian Christians, Turkmen, and Shi’a Arabs.67 This increased the level of forced displacement and dramatically dwindled refugee and IDP repatriation to Iraq since 2014. While resettlement and reintegration may be a plausible solution for some communities, smaller minorities continue to bear the brunt of displacement. Ibrahim Sirkeci drew a link between ethnic conflict and migration in Iraq, contending: In post-war Iraq, as long as there is no functioning representative democracy, tensions between ethnic communities are likely to occur . . . and there is the likelihood that some ethnic groups will suffer from discrimination by ruling or dominant ethnic groups (currently Shia and Kurds). Within this type of political climate, deprived ethnic populations may turn to emigration. In fact, even the possibility of such a conflict may prove sufficient reason to flee and seek refuge in other countries.68

Disenfranchised and marginalized groups, particularly those experiencing direct threats to their livelihoods, often had no alternative but to flee. In 2007, the International Organization for Migration reported that 85 percent of IDPs fled because they were targeted due to their religious or sectarian identity, while 4 percent cited their ethnic identity as the cause of sectarian violence.69 Ethnic and sectarian cleavages reinforced patterns of communal violence and continued to block repatriation of refugees and IDPs. These patterns of insecurity and mutual suspicion further complicated possible national reconciliation and reintegration initiatives. Simultaneously, minority IDPs such as Assyrians and Yezidis, fleeing the volatile conditions throughout 65 66

67 68

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UNAMI, “2010 Report on Human Rights in Iraq.” Suadad Al-Salhy, “Insight: Iraq War Over? Not Where Qaeda Rules Through Fear,” Reuters, March 25, 2012, www.reuters.com/article/us-iraq-qaeda/insight-iraq-war-over-not-where-qaed a-rules-through-fear-idUSBRE82O08H20120325 Travis, “Why Was Benghazi ‘Saved.’” Ibrahim Sirkeci, “War in Iraq: Environment of Insecurity and International Migration,” International Migration 43 (2005): 201–202. IOM, “2008 Mid-Year Review.”

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the rest of Iraq to the Kurdish-controlled far north, experienced direct violence and intimidation stemming from pressures to support Kurdish political parties and adopt Kurdish identities.70 The systematic targeting of members belonging to an ethnic or religious group began to homogenize communities along ethnic and sectarian lines. Returning refugees are seeking sectarian-friendly areas to live in, which may once again serve to bolster ethnic and religious bonds.71 These trends of ethnic and sectarian fragmentation further minimized the venues in which return and repatriation could take place. With respect to fair and equal representation, the decision of the Iraqi Parliament to abrogate Article 50 from the Constitution, which guaranteed seats for minorities on provincial councils tasked with improving local services and promoting democratic accountability, reinforced underrepresentation in and marginalization from the political process. This may contribute to further minority flight from the country, as political representation is linked to human security.72 Thus, the UN Special Representative for Iraq criticized the reduction in minority political representation, saying that without Article 50, it was unclear whether “Iraq is a nation ready to protect the political rights of minorities as founded in the Constitution.”73 The loss of political participation for minority communities amid targeted campaigns to depopulate these communities has slowed the state’s response to ethno-religious violence.74 Furthermore, the insurgency’s operations have further partitioned communities and neighborhoods along ethnic and sectarian divides, creating an unsafe environment for repatriation. Assyrians, for example, fled being targeted by extremist Sunni Arab terrorism, including 70

71

72

73

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Human Rights Watch, “On Vulnerable Ground: Violence against Minority Communities in Nineveh Province’s Disputed Territories,” 10 November 2009, www.hrw.org/report/2009/ 11/10/vulnerable-ground/violence-against-minority-communities-nineveh-provinces-dispu ted; Taneja Preti, “Assimilation, Exodus, Eradication: Iraq’s Minority Communities since 2003,” Minority Rights Group International, February 11, 2007, www.minorityrights.org/28 05/reports/assimilation-exodus-eradication-iraqs-minority-communities-since-2003.html; UNAMI, “Human Rights Report (January 1–June 30),” 2008, www.ohchr.org/Documents/ Countries/IQ/UNAMI_Human_Rights_Report_January_June_2008_EN.pdf Elizabeth E. Ferris, “The Looming Crisis: Displacement and Security in Iraq,” Brookings Institute, August 2008, www.brookings.edu/~/media/Files/rc/papers/2008/08_iraq_ferris/08_ iraq_ferris.pd Rens Willems et al., “Security Promotion in Fragile States: Can Local Meet National?” August 2009, http://lekiworld.com/AU/docs/109.pdf; Susan A Banducci, Todd Donovan, and Jeffrey A. Karp, “Minority Representation, Empowerment, and Participation,” The Journal of Politics 66, no. 2 (May 2004): 534–56. British Broadcasting Corporation, “UN Criticises Iraqi Election Law,” BBC, October 2, 2008, http://news.bbc.co.uk/2/hi/middle_east/7649196.stm. Michael Youash, “Iraq’s Minority Crisis and U.S. National Security: Protecting Minority Rights in Iraq,” American University International Law Review 24, no.2 (2008): 342–75, 349–50, 361, 364, 370–74.

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kidnappings and assassinations, virtually emptying Mosul and Baghdad’s Dora district of Assyrians.75 Overall, displacements rose from about 1 million before 2003 to between 2 and 2.7 million in 2011.76 Sectarian violence continues to be a factor for most returnees, as exemplified by some returnees from the Dora/Hada district of Baghdad, who were returning to other neighborhoods divided along Sunni/Shi’a sectarian lines rather than to their places of origin.77 As noted by Elizabeth Ferris, “Displacement by ethnic cleansing is changing, perhaps permanently, Iraq’s sectarian geography with clear consequences for the country’s eventual political reconciliation and stability.”78 A study of lighted Baghdad buildings released in 2008 showed that lighting dropped dramatically in neighborhoods formerly populated primarily by Sunni Arabs, suggesting a pattern “associated with ethno-sectarian violence and neighbourhood ethnic cleansing.”79 The departure for Jordan and Syria of Iraqis who formerly inhabited affluent neighborhoods may have also accounted for the reduction in violence usually credited to the improved provision of security since 2007, the study’s authors concluded.80 The escalation of communal violence fueled by a growing insurgency and terrorist groups’ activities had dire consequences for Iraq’s security environment. The spike in civilian causalities made 2013 the deadliest year in Iraq since 2008, with 7,818 killed and 17,981 injured, similar to 6,787 civilian deaths and 20,178 injured in 2008.81 Insecurity and lawlessness since the offensives of ISIL in 2014 and the Iraqi military’s efforts to retake the country’s second-largest city, Mosul, from the group have significantly contributed to civilian deaths as well. The UNANMI recorded 23,697 civilian casualty figures from June 2014 to April 2017, while Iraq Body Count recorded noted a total of 55,915 civilian deaths from June 2014 to May 2017.82

75

76

77 78 79

80 81

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Hannibal Travis, “Exile or Extinction: The Assyrian genocide from 1915 to 2015,” in The Assyrian Genocide: Cultural and Poltical Legacies, ed. Hannibal Travis (London: Routledge, 2017), 269; Youash, “Iraq’s Minority Crisis,” 354–55, 361. Internal Displacement Monitoring Centre, “Iraq: Internally Displaced Population,” October 5, 2011, www.internal-displacement.org/countries/iraq/ IOM, “Iraq Displacement and Return.” Ferris, “The Looming Crisis.” Meg Sullivan, “UCLA Study of Satellite Imagery Casts Doubt on Surge’s Success in Baghdad,” UCLA Newsroom, September 18, 2008, http://newsroom.ucla.edu/releases/ucla-st udy-of-satellite-imagery-62852. Ibid. UNAMI, “UN Casualty Figures for December, 2013 Deadliest since 2008 in Iraq,” January 2, 2014, www.uniraq.org/index.php?option=com_k2&view=item&id=1499:un-casualty-figuresfor-december-2013-deadliest-since-2008-in-iraq&Itemid=633&lang=en UNAMI, “Civilian Casualties,” accessed July 20, 2018, www.uniraq.com/index.php?optio n=com_k2&view=itemlist&layout=category&task=category&id=159&Itemid=633&lang= en; Iraq Body Count Database, accessed July 20, 2018, www.iraqbodycount.org/database/

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The Iraqi government recognizes that the widespread violence on ethnic and religious grounds within the country precludes voluntary return of refugee populations. In 2009, the minister of displacement and migration took the remarkable step of refusing the involuntary repatriation of forty-one Iraqis from the north of the country deported by Britain and unloaded from a plane in Baghdad, because Baghdad would be unsafe for them.83 The returns would be undignified and inhuman, the minister argued.84 Amnesty International agreed that it would be wrong to encourage returns to Baghdad, even though returns were taking place nearly three years after the start of the “surge,” which was credited by some participants and observers with decreasing violence in Baghdad.85 The withdrawal of US combat forces during the Obama administration may have been followed by a marginal increase in IDP returns.86 The trend was uneven, however, with noticeable increases in the population of IDPs in Dohuk, Erbil, and Ninewa provinces. The departure of the Assyrians and Yezidis in those provinces due to ongoing violence87 and the flight of Iraqis from the southern provinces to the perceived safety of the Erbil region were among the possible explanations for the surge in IDPs in these three provinces, accounting for some 107,000 persons between late 2008 and late 2011.88 In addition, Syrian Kurds flowed into northern Iraq as al-Qaeda units fought to take over Syria’s city of Aleppo.89

83 84 85 86

87 88

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Rond Norland and John F Burns, “Iraq Sends 41 of 50 Deported Refugees Back to Britain,” The New York Times, October 17, 2009,www.nytimes.com/2009/10/18/world/middleeast/18iraq.html Ibid. Ibid. Many members of Iraqi ethnic and religious minority groups surveyed by Minority Rights Group during the summer of 2011 reported that “the withdrawal of US forces from Iraq at the end of 2011” was a positive development, as some of the forces bore some blame “for creating a situation where ethnic and sectarian differences have become highly toxic.” Minority Rights Group, “Improving Security for Minorities in Iraq,” ReliefWeb, June 30, 2012, http://reliefweb .int/report/iraq/improving-security-minorities-iraq Ibid. At the close of a one-week visit to the KRG in late 2010 by Mr. Walter Kaelin, the Representative of the U.N Secretary General on the Human Rights of Internally Displaced Persons, UNAMI reported that “while some of the displacement includes various ethnic groups which fled to the region from other parts of Iraq following inter-sectarian violence, other displacements have occurred from within the region.” UNAMI, “UN Expert Calling for Action on Behalf of Internally Displaced Persons in the Kurdistan Region of Iraq,” UN Iraq, October 3, 2010, www.uniraq.org/index.php?option=com_k2&view=item&id=453:un-expertcalling-for-action-on-behalf-of-internally-displaced-persons-in-the-kurdistan-region& Itemid=606&lang=en In Aleppo, the Old City’s Christians and Kurds have reportedly fought on the side of the Syrian government against units of al-Qaeda and other Syrian rebels who have seized roughly

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reforms conducive to exercise of the right of return Many Iraqi refugees and IDPs have not returned to their homes due to disregard of their fundamental rights. In its 2010 Global Report on Iraq, the UNHCR noted: Iraqis continued to face challenges owing to the unstable security environment in the country, the unpredictable political situation and serious gaps in the rule of law. Lack of access to basic services, high levels of unemployment and the risk of arbitrary arrest and detention were protection issues affecting much of the population. The situation was even more acute for refugees, stateless people, and IDPs and returnees.90

In general, the security environment continues to hinder tangible prospects for facilitating refugee repatriation and the right of return for IDPs. Hence, the most important reform that would promote the exercise of the right of return, according to the sources reviewed in this chapter, is the provision of basic security measures that would facilitate voluntary repatriation. Improvements in the security environment would require not only efforts to underwrite the actual physical safety and security of returnees, but also creation of socioeconomic sustainability with the restoration of basic public services, disrupted by decades of war, leading to sustainable “human security.” The concept of human security demands that ethnic and religious strife be brought to an end. This is typically achieved by restoring the state’s monopoly on the legitimate use of force with the abolition of sectarian militias seeking to remap communities along ethnic and religious lines. The International Crisis Group (ICG) has argued that to achieve this goal, Iraq must (1) exclude violent groups from the electoral process and the provincial councils, (2) allow refugees and IDPs to vote wherever they find themselves on election day,

90

half of the Old City, forcing tens of thousands of Iraqi refugees and Syrian nationals to flee toward Iraq, Jordan, Lebanon, and Turkey. Oliver Holmes, “Aleppo’s Ancient City a Victim of Syrian War,” Reuters, August 28, 2012, www.reuters.com/article/2012/08/28/us-syria-crisis-alep po-idUSBRE87R0US20120828; Tulay Karadeniz, “Up to 10,000 Syrian Refugees Stranded on Turkey Border: Activists,” Reuters, September 3, 2012, www.reuters.com/article/2012/09/03/ussyria-crisis-refugees-idUSBRE88207O20120903; UNHCR, “Fact Sheet About Iraq Returnees and Syrian Refugees Enter Iraq,” ReliefWeb, August 9, 2012, http://reliefweb.int/report/iraq/ fact-sheet-about-iraq-returnees-and-syrian-refugees-enter-iraq; see also Ben Armbruster, “Frustrated Syrian Rebels Increasingly Turning to Al-Qaeda For Support,” Think Progress, August 8, 2012, https://thinkprogress.org/frustrated-syrian-rebels-increasingly-turning-to-al-qa eda-for-support-6b3fcc3fb9b0/; Ryan Mauro, “Al Qaeda, Islamists Seek Sharia State in Syria,” FrontPageMag, June 25, 2012, www.frontpagemag.com/fpm/138525/al-qaeda-islamists-seek-sh aria-state-syria-ryan-mauro. U.N. High Commissioner for Refugees, “2010 Global Report-Iraq,” December 31, 2010, https:// reliefweb.int/report/iraq/unhcr-iraq-factsheet-december-2010

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and (3) remove sectarian influences from government posts including the security forces and the intelligence services.91 Amnesty International has similarly urged Iraq’s security forces to halt further killings and other human rights abuses, and bring local militias under legal, democratic control.92 These militias impose a degree of ethno-sectarian homogenization that is contrary to the Iraqi Constitution’s guarantee of a right not to be displaced from a community on account of one’s ethnic or religious identity. Government accountability and responsiveness to local populations are vital to ensure that returnees do not languish in an insecure environment without accommodation, jobs, or hope. The US Commission on International Religious Freedom (CIRF) has similarly argued that the United States has a responsibility to train local members of Iraq’s religious minorities to provide security for their own communities, maintain and share data on killings and human rights abuses on ethnic and religious grounds, contribute appropriately to UNHCR’s appeals for Iraq’s displaced persons, target aid to Iraq to religious minorities especially in the vicinity of Mosul, and support the reconstruction of infrastructure in the Mosul region to promote resettlement.93 The commission also urged the United States to ask the Iraqi government to halt seizures of minority religious communities’ land and villages in the disputed Kurdistan Regional Government (KRG) sector of the Mosul region.94 Since 2014, Kurds have expanded the territory of the KRG by 40 percent through land seizures, which affect displaced Arabs, Assyrians, Turkmen, and Yazidis who fled ISIS’ advancement.95

91

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International Crisis Group, “Iraq After the Surge II: The Need for a New Political Strategy,” April 30, 2008, www.crisisgroup.org/middle-east-north-africa/gulf-and-arabian-peninsula/iraq/ iraq-after-surge-ii-need-new-political-strategy Amnesty International, “Restraint Urged in the Kurdistan Region of Iraq following Protester Deaths,” February 18, 2011, www.amnesty.org/en/documents/MDE14/005/2011/en/; Amnesty International, “Days of Rage: Protests and Repression in Iraq – Testimonies/Case Studies,” April 12, 2011, www.amnesty.org/en/documents/mde14/020/2011/en/ U.S. Commission on International Religious Freedom, “USCIRF to Secretary Rice: U.S. Must Address Threats to Religious Minorities in Iraq,” September 6, 2007, www.uscirf.gov/ news-room/press-releases/uscirf-secretary-rice-us-must-address-threats-religious-minorities-inIbid. See also Human Rights Watch, “On Vulnerable Ground.” Isabel Coles and Stephen Kalin, “In Fight against Islamic State, Kurds Expand Their Territory,” Reuters, October 10, 2016, www.reuters.com/investigates/special-report/mideast-crisis-kurds-land/; Human Rights Watch, “Iraqi Kurdistan: Christian Demonstration Blocked,” April 22, 2016, www .hrw.org/news/2016/04/22/iraqi-kurdistan-christian-demonstration-blocked; Missy Ryan and Aaso Ameen Shwan, “After Islamic State, Iraq at Risk of New Battle for Disputed Territory,” Washington Post, December 10, 2016, www.washingtonpost.com/world/middle_east/after-the-isla mic-state-a-new-battle-for-disputed-territory-looms/2016/12/09/ec08d4a6-bb23-11e6-ae79-bec72d34f8 c9_story.html?utm_term=.813a87039e35; Mark Townsend, “Kurds Offer Land for Independence

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In the case of the most vulnerable minorities, some have advocated territorial solutions to accommodate threatened minority communities. For instance, the Iraq Sustainable Democracy proposed the Nineveh Plains Province Solution (NPPS) in order to bring about the voluntary repatriation of Assyrian Christian refugees and IDPs from the Mosul region.96 The creation of a haven for non-Arab, non-Kurdish ethnic and religious minorities in a province where many of them formerly resided would help prevent further flight from Iraq due to ethno-religious violence, and promote the empowerment and survival of these minorities.97 Without such a safe haven, “IDPrefugee demographics indicate that Assyrians are sitting at a ‘tipping point’ whereby the ongoing, slow genocide produces the conditions ideal for a fullfledge genocide” of a fractured, defenceless minority group.98 This policy proposal is akin in principle, though not in scope, to the Kurdistan Region in Iraq in that it aims to protect Assyrians and other minorities facing an existential threat from targeted violence. To be effective, resettlement plans must operate within the framework of the Iraqi Constitution, existing humanitarian and human rights instruments such as the UN Declaration on Human Rights, and past precedents, particularly relating to Bosnia and Herzegovina with respect to the Dayton Agreement, all of which serve as frameworks for guiding the planning and implementation process of repatriation as demarcated in the right of return. Economic development and demining, which were prominent in the reconstruction of Bosnia and Herzegovina, are also key recommendations of the United Nations for Iraq.99 In addition, refugee and IDPs’ returns must also be adequately funded. During Iraq’s last major displacement crisis in 1991–92, the international community spent over $400 million in a matter of months and issued appeals for $700 million more in funding on Iraqis and other persons who became refugees as a result of the Gulf War.100 This international monetary response

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99 100

in Struggle to Reshape Iraq,” The Guardian, February 25, 2017, www.theguardian.com/world/20 17/feb/25/mosul-peshmerga-kurds-iraq-baghdad-erbil. Iraq Sustainable Democracy Project, “Nineveh Plain Province Solution,” n.d., accessed July 20, 2018, www.iraqdemocracyproject.org/pdf/Nineveh%20Plain%20Province%20Soluti on%20(legislative%20proposal%20-%20final).pdf Ibid. Iraq Sustainable Democracy Project, “At the Tipping Point: A Nineveh Plan Province and Related Solutions to Iraq’s Indigenous Minority Crisis,” n.d., accessed July 20, 2018, www .iraqdemocracyproject.org/pdf/Assyrians%20At%20the%20Tipping%20Point%20-%20Iraq%2 0(final).pdf United Nations, “Iraq 2010 Humanitarian Action Plan.” P. Lyman, “Crisis of Refugees and Displaced Persons of Iraq,” Department of State Dispatch, April 15, 1991, 274.

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was not matched in the 2003–6 period, during which further displacements took place. Similarly, funding for displaced persons in 2006–7, one of the worst periods in Iraq’s history for human security, was at a fraction of the 1991–92 level. This is despite the fact that the UNHCR devoted nearly seven times as much funding to its Iraq operation in 2007 as in 2006, up to nearly $140 million from only about $20 million in 2006.101 The UNHCR’s IDP tracking and reintegration projects, conducted in coordination with other authorities, received only $61 million in 2010.102 The UNHCR uses funds of this kind to offer displaced, returning, or otherwise vulnerable Iraqis with legal advice, including services relating to replacement of government documents, access to government aid, and representation before government tribunals, including in cases of property disputes.103 Finally, within the framework of the right of return, the Government of Iraq must create repatriation initiatives that tackle every facet of returnees’ needs. One such initiative is the implementation of effective measures for settling property disputes, a crucial component of managing repatriation.104 In doing so, the Government of Iraq would fulfill the mandate of the Property Claims Commission (PCC), which was originally called the Iraq Property Claims Commission.105 Although the PCC received 165,000 claims since its founding in June 2004, it reviewed only about 25,000 of them by the end of 2010, and rejected 11,500 of those. In effect, fewer than 5 percent of claims from some regions were approved.106 Absent some mechanism for Iraqi refugees to reclaim properties from which they were displaced by persecution and violence, they will likely remain exiled abroad. As the situation stands now, 90 percent of displaced Iraqis are deterred from doing so by some combination of sectarian violence and the plunder or misappropriation of their property.107

101

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103

104 105

106 107

U.N. High Commissioner for Refugees, “Global Report 2008,” 2008, www.unhcr.org/afr/sta tistics/country/4a375c426/2008-global-trends-refugees-asylum-seekers-returnees-internally-dis placed.html, 151. U.N. High Commissioner for Refugees, “Global Report, 2010,” 2010, www.unhcr.org/4df a11499.pdf, 174. See, e.g., U.S. Government Accountability Office, Displaced Iraqis: Integrated International Strategy Needed to Reintegrate Iraq’s Internally Displaced and Returning Refugees (Washington, DC: GOA, 2010), 27. Lischer, “Security and Displacement in Iraq,” 105, 116. U.S. Department of State, Bureau of Democracy, Human Rights and Labor, “Country Reports on Human Rights – Iraq,” accessed July 20, 2018, www.state.gov/documents/organi zation/160462.pdf Ibid. UN IRIN, “Still No Clear Policy to Tackle Displacement,” ReliefWeb, September 4, 2012, http://reliefweb.int/report/iraq/still-no-clear-policy-tackle-displacement

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conclusion This chapter explored the origins and function of the right of return within the framework of transitional justice in post-conflict states, with special reference to domestic and international efforts to promote displaced Iraqis’ right of return to their homes. Several factors have shaped the plight of Iraq’s refugees and IDPs, including a highly fragmented and volatile security environment, the gravity of ethno-religious and sectarian violence and governmental participation in such violence, and returnees’ poor socioeconomic prospects. We find that while displacement is largely fueled by physical insecurity stemming from incongruent state-building coupled with the galvanization of ethnic and sectarian strife since 2003, the absence of national and substate institutional mechanisms within the framework of transitional justice has been particularly noticeable, leading to hampered IDP reintegration and refugee repatriation. For alleviation of these adverse conditions, national bodies as well as foreign governments and humanitarian organizations must help with the implementation of vital socioeconomic and political reforms. The issues that require addressing include devising a national transitional justice mechanism that would end impunity for widespread ethnic and religious violence (including the impunity of those arming or funding ISIL), protect minority groups such as Assyrian Christians, Yazidis, Mandeans, Shabacks, and Turkmen from persecution, and help settle territorial disputes that fuel tensions and continue to drive internal displacement.

references Adelman, Howard and Elazar Barkan. No Return, No Refuge: Rites and Rights in Minority Repatriation. New York: Columbia University Press, 2011. Amnesty International. “Restraint Urged in the Kurdistan Region of Iraq following Protester Deaths.” 18 February 2011. www.amnesty.org/en/docu ments/MDE14/005/2011/en/ “Days of Rage: Protests and Repression in Iraq’-Testimonies/Case Studies.” 12 April 2011. www.amnesty.org/en/documents/mde14/020/2011/en/ Armbruster, Ben. “Frustrated Syrian Rebels Increasingly Turning to AlQaeda For Support.” 8 August 2012. Think Progress. https://thinkpro gress.org/frustrated-syrian-rebels-increasingly-turning-to-al-qaeda-for-su pport-6b3fcc3fb9b0/ Australian Associated Press. “Humanitarian Crisis in Iraq ‘One of the World’s Worst.’” 16 March 2008. www.adelaidenow.com.au/news/world/iraqs-hor rific-human-crisis/story-e6frea8l-1111115818565

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Banducci, Susan S, Todd Donovan, and Jeffrey A. Karp. “Minority Representation, Empowerment, and Participation.” The Journal of Politics 66 no. 2 (May 2004): 534–56. Basri, Carole. “The Jewish Refugees from Arab Countries: An Examination of Legal Rights – A Case Study of the Human Rights Violations of Iraqi Jews.” Fordham International Law Journal 26 (2003): 656–85. Bremer, L. Paul and McConnell, Malcolm. My Year in Iraq: The Struggle to Build a Future of Hope. New York: Simon & Schuster, 2006. British Broadcasting Corporation. “UN Criticises Iraqi Election Law.” 2 October 2008. http://news.bbc.co.uk/2/hi/middle_east/7649196.stm British Refugee Council. “Aftermath of the Gulf Crisis: Stateless People and Returned Migrant.” In Hidden Casualties: Environmental, Health, and Political Consequences of the Persian Gulf War, ed. Saul Bloom et al. ARC/Arms Control Research Center, 1994. Coalition Provisional Authority. “Ministry of Displacement and Migration.” May 8, 2004. http://govinfo.library.unt.edu/cpa-iraq/regulations/20040112_ CPAORD50_MODM.pdf Davis, E. Diane. “Contemporary Challenges and Historical Reflections on the Study of Militaries, States, and Politics.” In Irregular Armed Forces and Their Role in Politics and State Formation, ed. Diane E. Davis and Anthony W. Pereira. New York: Cambridge University Press, 2002. De Zayas, Alfred. A Terrible Revenge: The Ethnic Cleansing of the East European Germans, 1944–50. New York: Saint Martin’s Press, 1994. Demirdjian, Alexis. The Armenian Genocide Legacy. New York: Palgrave Macmillan, 2016. Enders, David. “Iraq’s Uncertain Future.” The Independent. 3 January 2012. http://pulitzercenter.org/reporting/iraq-united-states-military-withdrawlfuture-displacement-kurds-economy-sectarian-conflict Ferris, Elizabeth. “The Looming Crisis: Displacement and Security in Iraq: Policy Paper No. 5.” Brookings Institute, 2008. http://www.brookings.edu/~/ media/Files/rc/papers/2008/08_iraq_ferris/08_iraq_ferris.pdf Fund for Peace. Fragile States Index. http://fsi.fundforpeace.org/data Goode, Erika and Suadad Al-Salhy. “Violence in Mosul Forces Iraqi Christians to Flee.” The New York Times. October 10, 2008. www.nytimes .com/2008/10/11/world/middleeast/11iraq.html Holmes, Oliver. “Aleppo’s Ancient City a Victim of Syrian War.” Reuters. August 28, 2012. www.reuters.com/article/2012/08/28/us-syria-crisis-aleppoidUSBRE87R0US20120828 Human Rights Watch. “Iraqi Kurdistan: Christian Demonstration Blocked.” April 22, 2016. www.hrw.org/news/2016/04/22/iraqi-kurdistan-christian-de monstration-blocked “On Vulnerable Ground: Violence against Minority Communities in Nineveh Province’s Disputed Territories,” 10 November 2009. www.hrw.org/report/

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MacInnis, Laura. “Iraqi Christians Flee Mosul after Death Threats: U.N.” Reuters. 24 October 2008. www.reuters.com/article/idUSTRE49N4GR20081024 Makiya, Kanan. Republic of Fear: The Politics of Modern Iraq. New York: Pantheon Books, 1990. May, Larry and Elizabeth Edenberg. “Introduction.” In Jus Post Bellum and Transitional Justice, ed. Larry May and Elizabeth Edenberg. New York: Cambridge University Press, 2013. Miller, Judith. “Displaced in the Gulf War: 5 Million Refugees.” New York Times. 16 June 1991. www.nytimes.com/1991/06/16/weekinreview/the-world-dis placed-in-the-gulf-war-5-million-refugees.html Minority Rights Group. “Improving Security for Minorities in Iraq.” 30 June 2012. http://reliefweb.int/report/iraq/improving-security-minorities-iraq Nordland, Rod and John F. Burns. “Iraq Sends 41 of 50 Deported Refugees Back to Britain.” New York Times. October 2009. 17, www.nytimes.com/ 2009/10/18/world/middleeast/18iraq.html NPR. “Iraqi Forces Retake City of Musl from ISIS Fighters.” July 10, 2017. www .npr.org/2017/07/10/536505269/iraqi-forces-retake-city-of-mosul-from-isisfighters Office of the High Representative and EU Special Representative. “1995 Dayton Peace Agreement.” 1995. www.osce.org/bih/126173 Orentlicher, Diane. “Report of the Independent Expert to Update the Set of Principles to Combat Impunity.” Addendum February 18, 2005. U.N. Doc. No. E/CN.4/2005/102/Add.1. www.refworld.org/docid/42d66e7a0.html Parmentier, Stephan. “International Law and Transitional Justice: Where Do Organised Crime Fit?” Rivista di Criminologia, Vittimologia e Sicurezza 3, no. 3 (2009–10): 86–100. Preti, Taneja. “Assimilation, Exodus, Eradication: Iraq’s Minority Communities since 2003.” Minority Rights Group International. February 11, 2007. www.minorityrights.org/2805/reports/assimilation-exo dus-eradication-iraqs-minority-communities-since-2003.html Radio Free Europe/Radio Liberty. “Bosnia Envoy Says Reforms Stalled Over Ethnic Divisions.” November 12, 2010. www.rferl.org/content/ Bosnia_Envoy_Says_Reforms_Stalled_Over_Ethnic_Divisions/221799 8.html RefWorld. “Constitution of the Republic of Iraq.” October 15, 2005. www.ref world.org/docid/454f50804.html Rens Willems, et al. “Security Promotion in Fragile States: Can Local Meet National?” August 2009. http://lekiworld.com/AU/docs/109.pdf Reuters. “Iraq War Over? Not Where Qaeda Rules Through Fear.” Reuters. March 25, 2012. www.trust.org/alertnet/news/insight-iraq-war-over-notwhere-qaeda-rules-through-fear2/

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part i ii

ethics of witnessing

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8 Persecution, Prosecution, Protection Doing International Justice for Sexual Violence Galya Ben-Arieh

introduction On August 26, 2014, the United States Board of Immigration Appeals issued a precedential decision recognizing domestic violence as a basis for asylum (Matter of A-R-C-G-).1 In the case, the Government of Guatemala failed to intervene when Ms. C-G-’s husband broke her nose, repeatedly beat and raped her, and burned her with paint thinner.2 Having just returned from representing Central American women who were detained at the Federal Law Enforcement Training Center in Artesia, New Mexico, in their asylum claims, many claiming persecution on the grounds of gender-based violence, I was pleased that their claims would now be on firmer ground. I eagerly shared the news with a colleague of mine, explaining to him that although other women had been granted asylum based on domestic violence, this was a big win for asylum advocates, since the board had remained silent on the issue for fifteen years in spite of their efforts (Musalo 2014). I was taken by surprise when he did not share my enthusiasm and, instead, came back at me with a question: Doesn’t that mean that almost all women worldwide can now come to the United States and be granted asylum? I thought about the import of that statement, given that women are affected by sexual violence the world over. The reality is that while there have been significant international and national legal developments over the past twenty years, justice for women who are victims of sexual and gender-based violence (SGBV) remains just out of reach, unattainable. The United States has infused billions of dollars since the early 1990s into international efforts to address sexual violence through criminal justice, 1 2

Matter of A-R-C-G- et al., Respondents, Interim Decision #3811, 26 I&N Dec. 388 (BIA 2014). Regarding the full details of the case, see cgrs.uchastings.edu [accessed 11/12/2018].

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development, and humanitarian programs. This shift by the court in the United States to recognize domestic violence as persecution really just brings the United States’ domestic position more in line with our international support for the nonbinding Declaration on the Elimination of Violence Against Women (DEVAW), which the UN General Assembly adopted in 1993. DEVAW defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.”3 Although there are tighter and stronger laws on the books than ever before, our system of justice for sexual violence remains fraught with contradictions. Consider that while immigration judges in the United States were granting Central American women asylum based on sexual abuse in their home countries, claims that those same women were being sexually abused while in the US detention center were dismissed. A report by the inspector general of the Department of Homeland Security stated that investigators found “no evidence” to prove the allegations, and were unable to identify a victim or suspect in this matter.4 Rejecting these findings, advocates pointed out that it was unclear that the witnesses felt safe to speak without fear of reprisals in their asylum cases.5 Back in 2009, when I first learned about sexual violence in Congo (Democratic Republic of the Congo, or DRC), the “rape capital of the world,” I was amazed at how much money was being spent to end impunity for sexual violence in a country with no infrastructure, no prison system, and no courts to “combat” sexual violence. I felt the need to go there myself to better understand why so much was being invested in sexual violence criminal justice programs in a place such as DRC, when we have minimal justice at home. Consider that, at the same time as Hillary Clinton announced her $17 million campaign to combat rape in DRC, the arrest rate for rape in the United States was 24 percent, a figure that has not changed since the late 1970s,6 and that the rape kit backlog had reached epic proportions, especially in regards to US Native American women, who face high rates of rape,

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UN document, A/RES/48/104, December 20, 1993. DEVAW was adopted without a vote at the Forty-eighth Session of the UN General Assembly. For a discussion on the criteria used to reach this conclusion, see the 2014 report on Identifying the Culprit: Assessing Eyewitness Identification. National Academies Press, Washington DC. Julia Preston, “Report Finds No Evidence of Sexual Abuse at Texas Immigration Detention Center,” New York Times, July 2, 2015. Sarah Tofte, “A Needed Revolution: Rape and U.S. Justice,” Amnesty International, April 9, 2012.

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prompting Amnesty International to launch a human rights initiative.7 The US Agency for International Development (USAID) has awarded more than $71 million in GBV programming in the DRC since 2002. Not that I did not think it was important to combat sexual violence, but, rather, nowhere on earth has sexual violence been combatted, and most often evidence of rape is discredited – so then why pick the most difficult place in the world to attempt to implement a justice program to combat rape? This chapter is my attempt to reason through these contradictions of doing justice and to set out a new approach for researching, which I call “ecosystems of injustice.” The chapter raises questions about the pathologies of today’s efforts to address sexual violence as part of the broader discourse regarding transitional justice. We now have highly sophisticated international criminal justice institutions, more knowledge of the causes and consequences of sexual violence than ever before, and sophisticated technologies such as crisis mapping to facilitate humanitarian response, yet women seem no better protected than they have been in the past, and justice seems to elude our best efforts. In order to better understand the successes and failures of international justice for sexual violence, we need to study the ways in which the forms and institutions of combatting sexual violence relate to each other in a more systemic way as relations of justice. That is, the ways in which we prosecute, protect, and attribute persecution are not separate from but part of a broader picture of foreign policy and the global economy. Land grabs, mining, mega farms, displacement, detention, sexual violence, and protection and justice efforts are parts of the same system. Not just in terms of the cause, but in terms of understanding how the “will” to address sexual violence in some places and not others relates to the ways in which we “do” justice for sexual violence. I have expanded the range of situations and the temporal frame to make visible the fact of sharp edges that obscure what might lie beyond.8 How do the “innovations” to protect women connect to foreign policy and development? Can criminal justice and humanitarian efforts materialize into social justice for women, or are they part of a different cycle that needs to be made more apparent? Those who have studied sexual violence and its causes and consequences and/or have studied how we might best seek gender justice – specialized undertakings – cannot detect what Saskia Sassen calls “the subterranean trends that cut across our familiar distinctions.”9 Similar to Sassen, “Rather than giving meaning to facts by processing them upward through 7

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“Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA,” Amnesty International, 2007, www.amnestyusa.org/pdfs/MazeOfInjustice.pdf. Saskia Sassen ed., Deciphering the Global: Its Scales, Spaces and Subjects (Routledge, 2013) page 4. Sassen, Deciphering, 6.

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theorization, I do the opposite, bringing them down to their most basic elements in an effort to de-theorize them. Through such de-theorizing I can then revisit inequality, finance, mining, land grabs, and much more in order to see what we would miss with more abstract categorizations . . . At its sharpest, my hypothesis is that beneath the country specifics of [rape in conflict] diverse global cities lie emergent systemic trends shaped by a few very basic dynamics. For that reason, empirical research and conceptual recording must happen together. Empirically, a phenomena may look ‘Chinese’ or ‘Italian’ or ‘Australian,’ but this may not help us detect the DNA of our epoch, even if such labels capture certain features.”10 The year 1994 was the start of a new language of international response to atrocity and, in particular, sexual violence, which connected internally to state logics and economies of displacement. There are new actors as a result, who are now part of the larger system. And the oppressed, those labeled vulnerable, refugees, and others who are internally displaced are part of the social infrastructure for power. The ICC, mobile courts, refugee camps, asylum processes through the prosecution, protection, and recognition of persecution of gender- and sexual-based violence are “sites where it all comes together, where power becomes concrete and can be engaged.”11 Rule of law and the creation of institutions cannot dictate, ultimately, how they are used or the effect they will have – in other words, how we “do” justice. I argue that we need to examine these “ecosystems of injustice” in order to understand why and how we do justice for sexual violence as an international and global community. In other words: How do the various international and national laws and policies that respond to sexual violence and seek to address the causes and consequences beyond state borders cohere (and not), and how can we make sense of the international response to the injustice of rape? And, focusing specifically on the United States, how might we understand US efforts in regards to violence against women as they are addressed as a human rights issue, a form of persecution integrated into US assistance programs and foreign policy mechanisms? Looking back historically at the origins of the social and legal understandings, forms of protections, and prosecution of sexual violence prompts us to ask: Where does the impetus to address rape and other forms of sexual violence come from? The emphasis of the exploration is not so much on how law determines culpability, but rather on the “will” to prosecute, protect, and recognize sexual violence as a form of persecution and torture, given that the evidence will always be messy. When is rape visible to the international eye and when is it not? I trace the evolution of the “will” to do justice, the why, before examining the process of 10 11

Sassen, Deciphering, 6–7. Sassen, Deciphering, 10–11.

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justice, the how, as part of one reflexive system of justice. Through this examination of justice for sexual violence across and between contexts, we can more clearly study why it might be that even when there is enough evidence to convict, the will to convict is often lacking. And we can see the connection between the willingness to “combat” rape, and foreign policy goals, property or other economic interests, and social and cultural norms. Being aware of the motives in addressing rape (why, at the same moment, are only some rapes addressed while others are ignored?), we can better understand why international efforts fail to actually address rape. We can look beyond the narratives that have been framed and the stories that have been told about rape (the context), to develop a theory of justice that is based on rape itself. Narratives are important, since they tell us where we need to look in order to understand better why there does not seem to be any reduction in sexual violence as a result of policies. The narratives reveal the ways in which these policies are often successful in other ways, such as furthering foreign policy and/or property goals. By stripping the narratives away, law can have a more direct relationship to sexual violence itself – as a criminal act, a harm, an emotional and physical torture that deserves a more direct legal response, free of the context. I have two goals: to get honest about the international sexual violence project and then to get serious about rape as a matter of justice. I argue that conflict about rape has been for a long time, intentionally or not, part of a slew of tactics of nation-building and conquest. It is perpetrated on civilians, and so it is a war crime, but it is also part of a century or more of efforts to take control of resource-rich territories and regulate borders and migration, and a response to the scarcity of land. Rape is not an imperial import, nor homegrown. It cannot be explained as mere individual aggression, nor is it only and always concerted policy. A genealogical perspective tells us that it’s not just that rape and sexual violence is a weapon of war; the strategies to “combat” rape are also a strategic ordering that contributes to political regional and national interests. How does seeing rape in this context affect how we hear and treat victims and shape possible policy responses? The year 1994 is the watershed moment in this genealogy. This was a powerful break from the past, where rape came to be accepted as an international crime against humanity and genocide. Justice and moral outrage were both altered and enabled as responses during the post1994 era. In my first research trip to the DRC, I conducted an introduction to my research project to a group of women before I took their individual testimonies.12 After telling them about the goals of the research and their 12

On the issue of “action research,” see S. Kemmis and R. McTaggart, “Participatory Action Research: Communicative Action and the Public Sphere,” in The Sage Handbook of

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participation, I asked if there were any questions; all the women wanted to know what it was like for me, as a woman, in the United States. I told them that women in the United States fought hard, not all that long ago, for the right to vote, and are still fighting for equality, and that rape was still endemic in our culture. I told them that, not all that long ago, rape in marriage was legal in the United States. Now that I have had time to reflect on that day, I know that I would have also liked to share with them the experience of Native women in the United States who, as Winona LaDuke wrote in her forward to Andrea Smith’s powerful book Conquest: Sexual Violence and American Indian Genocide, suffer from what “Agnes Williams calls ‘ethno-stress.’ In other words, you will wake up in the morning, and someone will be trying to steal your land, your legal rights, your sister will be in jail, your public Anglodominated school district will be calling about your children’s conflicts with teachers or their spotty attendance, and your non-profit organization’s funding is getting cut by a foundation because you are no longer a priority.”13 I would have liked to tell them that there is a commonality to sexual violence, dehumanization and marginalization, which is, unfortunately, worldwide. And that, as LaDuke says, “the reality is that what is personal and intimate – whether your family history, the perceptions of you as an individual, or perceptions of your daughters – becomes the centerpiece of power relations between peoples and societies.”14 And that justice requires a reworking of the narratives that fuel sexual violence, such that women and girls who are raped are seen as the complicated individuals that they are, and not through the mirrors and subterfuges of power relations, foreign policies, and local politics. While there is agreement about the need to transform the narrative, the “how” remains unsolved. In order to get at a response to the question of how we ought to do justice in the case of sexual violence, theory needs to be derived from posing a different set of questions than have been asked before, questions such as the following: Why is there public outcry and, even more, international outcry for some cases of rape and not others? If rape is, just that, rape, why does it take on a “by any other name” quality, such that it is the context and narratives of the rape that trigger public outcry and legal response? Why is date rape on college campuses not criminal rape that must be turned over to the police? In what way, if at all, is date rape in college, which is routinely ignored, different than the rape

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Qualitative Research, ed. N. K. Denzin and Y. S. Lincoln (Thousand Oaks, CA: Sage Publications Ltd., 2005), pp. 559–603. Winona LaDuke, foreword to Andrea Smith, Conquest: Sexual Violence and American Indian Genocide (Durham, NC: Duke University Press, 2015), xvii. LaDuke, in Smith, Conquest, xvii–xviii.

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these women experienced? Although, just as with other crimes, context matters in determining the sentence, it seems that in the case of sexual crimes the equation is flipped, such that the context creates the rape or act of sexual violence and that lacking a particular context, rape/sexual violence does not exist. Feminist scholarship on sexual violence and conflict has drawn out the ways in which “gender relations have been deployed in sites of militarized conflict to incite, exacerbate, and fuel violence,” and the connection between the image and understanding of women in war and “strategic, nationalist, or state purposes” that “tell us little about the diversity of women’s experience during war, their role on the front lines, or their care in refugee camps.”15 Whereas I agree that the changing dynamics and strategies of war have changed and affect people in disparate, yet predicable, ways,16 I put forth the position that how we do justice for sexual violence should not depend on the cause or context. At the same time, I think that the stories we tell about how and why we ought to care about rape, that is, the rumors, urban myths, and false accusations, offer important insight into the project of doing justice for rape. For it is in distinguishing the narrations of rape that carry undertones of foreign policy and global economic incentives from the authentication of the individual narration of a rape claim that makes visible our shortcomings of bearing witness to rape. What are the ways in which global narratives prevent victims of rape, adjudicators, and our communities and families being called upon to bear witness to sexual violence as a matter of justice? The starting point for an analysis of the “ecosystems of injustice” is that, whether rape happens in peace or wartime, as a result of gang or rebel violence, at the hands of a football player or fraternity brother, or to the wife of a domineering husband, there are societal and cultural norms that end up creating impunity and a failure of legal recourse.17 As others have noted, “The extreme violence that [women] suffer during war and genocide does not arise solely out of the conditions of conflict. It is directly related to the attitudes of men [and women] – the young and the not so young – have toward women and girls in peacetime. All forms of violence against women are related.”18 I call this the injustice of rape. At the same time, we live in a world today where there is a distinct international obligation to address rape in the form of 15

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W. Giles and J Hyndman, eds., Sites of Violence: Gender and Conflict Zones (Berkeley: University of California Press, 2004), 4. Giles and Hyndman, Sites of Violence, 5. Nicola Henry and Anastasia Powell, Preventing Sexual Violence: Interdisciplinary Approaches to Overcoming a Rape Culture (London: Palgrave Macmillan, 2014). C. Rittner, “Are Women Human,” in Rape: Weapon of War and Genocide, ed. C. Rittner and J.K. Roth (St. Paul: Paragon House, 2012), 10.

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international prosecution, refugee status, and humanitarian protection. The intent of this book is to examine how the international “calling” to address sexual violence in conflict relates to the broader concerns of justice. What We Know: Narratives of Justice In our struggle to make sense of rape in war and conflict, a number of theories have emerged that attempt to respond to the question of why men rape during war and conflict and, in particular, why during periods of war and conflict sexual violence increases. These include (1) the “booty principle”; (2) humiliation of enemy women, and sending a message to the men that they failed to protect their women; (3) promotion of solidarity among the raping troops.19 Unfortunately, the adoption of these theories in response efforts and policies has often been misguided.20 While these theories may all be valid, they tell us little about how to do justice from the perspective of the rape victims who experience rape and other forms of sexual violence during conflict, not just by enemy troops, but also by peacekeeping forces, fellow refugees (many babies are born along refugee routes and refugee camps), husbands (driven by all sorts of reasons including the desire to replace dying children21), neighbors, and relatives and, for those who have been displaced in conflict, on their voluntary return home, integration in the country of asylum, and resettlement in a third country.22 As Cynthia Cockburn blatantly states in regards to her work with members of the Women in Conflict Zones Network23: I became conscious of a connectedness between kinds and occasions of violence. One seems to flow into the next, as if they were a continuum. First, gender links violence at different points on a scale reaching from the personal to the international, from the home and the back street to the maneuvers of the tank column and the sortie of the stealth bomber: battering and marital rape, confinement, “dowry” burnings, honor killings, and genital mutilation in peacetime; military rape, sequestration, prostitution, and sexualized torture in war. No wonder women often say, “War? Don’t speak to me of war. My daily life is battlefield enough.”24 19

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Cynthia Cockburn, “The Continuum of Violence: A Gender Perspective on War and Peace,” in Giles and Hyndman, Sites of Violence, 24–44; Ruth Seifert, “War and Rape: A Preliminary Analysis,” in The Criminology of War, ed. R. Jamieson (London: Routledge, 1994), 307–327. Human Security Report, chapter 2. Audrey Macklin, “Like Oil and Water, with a Match: Militarized Commerce, Armed Conflict, and Human Security in Sudan,” in Giles and Hyndman, Sites of Violence, 75–107. Cockburn, “Continuum of Violence,” 40. For information about the Network, see Giles and Hyndman 2004. Cockburn, “Continuum of Violence,” 43.

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At the same time, some researchers who work in the field on sexual violence, including myself, have come to the conclusion that, unlike for researchers engaged in sexual violence or human rights fact-finding missions, understanding sexual violence is a pretty complicated endeavor. We want to be outside observers, independent and neutral in our inquiry. Yet, we have felt our positions of power and discomfort at unwittingly becoming participants,25 and of not knowing whether those we speak with are simply telling us the story we want to hear,26 or whether our own biases and unconscious assumptions prevent us from hearing the people we speak with in a way that they intend to be heard. Audrey Macklin mentions a particular experience of sitting with a group of men, women, and children who were driven out of their villages by the Government of Sudan and the Sudan-sponsored militia during her independent fact-finding mission to Sudan appointed by the Canadian foreign minister to “investigate and report on the alleged link between oil development and human rights violations, particularly in respect of the forced removal of populations around the oil fields and oil related development.”27 In discussing their basic needs, the villagers told her that “women are not having babies anymore.”28 At the time, she assumed that she knew what they meant: that absent men, illness, malnutrition, and disease all precluded conception or precipitated miscarriages and stillbirths.29 Only later did she come to question her narrative and learn from ethnographer Jok Madut Jok that the reason could also be that due to corroded social rules, taboos, and mores regarding when, with whom, and how often to engage sexually, women lost control over sexual and reproductive decisions and were exposed to sexual transmitted diseases and to unwanted pregnancies. In this situation, women are left alone to cope with pregnancies and, in this context, “abortion emerges as a means of negotiating and emending hegemonic ideologies of gender, militarism, reproduction, and the nation.” It was then that she realized that there were discursive gaps and fissures in what she understood on that day speaking with the villagers. As she says, “Even now, I do not know how much was simply lost in translation.”30 At the same time, the women addressed her as “sister,” which led her to note that we need to consider the motives animating 25

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Dorothy Smith, Writing the Social: Critique, Theory, Investigations (Toronto: University of Toronto Press, 1999). Ruffer 2013 and 2014; Baaz and Stern 2013; C. Blacklock and A. Crosby, “The Sounds of Silence: Feminist Research across Time in Guatemala,” in Giles and Hyndman, Sites of Violence, 45–72. Macklin, “Like Oil and Water,” 75. Macklin, “Like Oil and Water,” 96. Macklin, “Like Oil and Water,” 97. Macklin, “Like Oil and Water,” 97.

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the women’s discursive strategy.”31 I too was often “lost in translation” during my field research and found it impossible to really know my role as “participant,” and what the motivation was to meet with me or provide me with information. Much of the literature on sexual violence is mainly descriptive, drawing out narratives in order to help explain the symptoms, consequences, and sometimes the causes, but rarely connects the dots in an overarching analysis and theory. The work on justice for sexual violence provides some theoretical foundation (public health, development, and social justice) and theorists such as Judith Butler, Rancier, and Foucault provide much of the basis for these theories, but they fall short in that they all have to assume one reason or another as to why men rape and why women get raped. What is needed is theory of justice to underlie the societal response to sexual violence independent of the context. International efforts to combat sexual violence are mired in Western political and militaristic narratives of war and conflict that, ultimately, fail to offer legal protection to women who have been raped. Within the growing industry of international criminal trials, there remains a marked shortage of vocabularies and evidentiary norms of rape as a painful personal wartime trauma.32 A common starting point in scholarship addressing international efforts to combat sexual violence in conflict is that wartime produces a breakdown of traditional societal norms and that women, left to fend for themselves on the home front, “suffer disproportionately from abuse, exposure to gender based violence, loss of home and possessions, loss of social and cultural ties, and the termination of employment and educational opportunities.”33 While this statement may be true, it is often made devoid of a baseline understanding of SGBV prior to conflict, and it creates an exceptional situation for women during war when, by most accounts, all sorts of states of lawlessness and disorder lead to an increase in sexual violence (Hurricane Katrina, college campuses, rich and poor women are both affected, etc.). It is also made devoid of a full understanding that certain kinds of unwanted sex are part of peacetime. In other words, in a place such as the DRC it might well be that while a woman raped by rebel groups during 31 32

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Macklin, “Like Oil and Water,” 99. N. Levenkron, “Death and the Maidens: Prostitution, Rape and Sexual Slavery during World War II,” in Sexual Violence against Jewish Women During the Holocaust, ed. N. Levenkron, S. M. Hedgepeth and R. Saidel (Waltham, MA: Brandeis University Press, 2010), 23. L. Groth, “Engendering Protection: An Analysis of the 2009 Kampala Convention and its Provisions for Internally Displaced Women,” International Journal of Refugee Law 23, no. 2 (2011): 223.

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conflict is considered “damaged goods” by her community, then that same woman when she cannot reject sex with her uncle or other members of her own community goes unnoticed (on purpose) and that sex is, therefore, part of her life. In other words, should we be concerned about the woman in her full social context, where we might find she is subject to rape throughout her life and, in fact, must relent as part of her membership in the community? Or should we focus only on rape in conflict, which seems to cause her rejection from her community? This issue can best be seen in the controversy over female genital cutting (FGC), where advocates and anthropologists argue over whether cultural practices that, by Western standards, are shocking ought to be considered a violation of human rights. A deep gendered approach must derive from a full understanding of unwanted sex, in order to address the subset of sexual violence in conflict as a matter of justice. The literature gets overly caught up in examining particular causes and, as such, is led astray in terms of prevention. In her contribution to Nicola Henry and Anastasia Powell’s edited volume on sexual violence prevention, Gillian Fletcher argues that “‘primary prevention is predicated on the biomedical concept of discrete, identifiable, static, ‘removable causes,’ and that gender processes ‘are none of these things’. She claims that there is a ‘black box’ at the heart of primary prevention work because little is known about what is actually needed for reducing the incidence of violence in all its forms.”34 And Claire Maxwell, in the same volume, makes the important point that the “‘why’ should inform the ‘how-to’ in preventing sexual violence,” but that this has not been the case.35 Due to the same issues of silencing and shame, we simply do not have this data for most countries. And Marcy Hersh, in a 2014 field report on Congolese Women, pointed to the politicized climate around the collection of sexual violence data.36 Intuitively and anecdotally, we know that women experience all different forms of sexual violence as part of regular life (early marriage, FGC, forced sterilization, domestic violence, rape, incest, etc.), but that sexual violence rarely gets discussed. Therefore, it’s hard to say whether there is a “breakdown of traditional societal norms,”37 or whether the conflict has heightened our awareness of the traditional societal norms and that these problems, which always exist, are more easily discussed when they 34

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Gillian Fletcher (2014) “Just ‘How” Do We Create Change?: Sites of Contradiction and the ‘Black Box’ of Change in Primary Prevention,” in Henry and Powell, Preventing Sexual Violence, 15. Claire Maxwell, “The Prevention of Sexual Violence in Schools: Developing Some Theoretical Starting Points,” in Henry and Powell, Preventing Sexual Violence, 105. Refugees International at www.refugeesinternational.org [accessed 11/12/2018] Groth, “Engendering Protecting,” 223.

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are conflict related. It could very well be that the lifting of the taboo that has occurred in addressing wartime and conflict rape of women (note that the same cannot be said for the rape of men and boys) has provided the opening to other national discussions of rape in the military, the church, in schools, by celebrities, and in fraternities. As more women come forward and the national conversations about rape in the West expand, it’s more difficult to say that traditional societal norms prevent rape from occurring. It seems more accurate to say that rape is a norm worldwide. There are intersecting discourses of rape that all highlight the problems of impunity and injustice. Conflict rape is hardly exceptional, but is rather tied to everyday rape in ways that need to be further examined (similar to Kalyvas’ observation that conflict violence is, essentially, private). Efforts to combat rape, therefore, must be framed within an understanding of everyday rape if we are to head in the direction of transformation. We must think about and discuss legal responses to rape in conflict in a way that recognizes norms and vocabularies of testifying to rape as part of the everyday framing of rape, and not rape in conflict. In other words, this approach recognizes conflict rape as a systemic problem embedded in legal and social discourse.38 As Wendy Larcombe states, “If we think of the criminal law as playing only a tertiary intervention role in relation to sexual violence, we overlook law’s regulatory and communicative functions – in particular, its role in developing and promulgating norms that guide social conduct.”39 In particular, “we need to understand why rape law reform has apparently had so little impact on the attitudes and beliefs about violence and gender inequality that support rape prevalence.”40 In part, this is because of “inadequate enforcement of legal norms” as seen in the low conviction rates: “on some figures, fewer than 5 percent of reported rapes result in convictions.”41 And yet, Larcombe also points to law’s ineffectiveness because “criminal law is not the only social institution that seeks to govern sexuality and sexual relations. Social, moral and religion or cultural norms also speak to sexual conduct – and they may do so in ways that contrast or undermine legal norms.”42

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Jurgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (New York: Polity Press, 2015); but also see Wendy Larcombe, “Limits of the Criminal Law for Preventing Sexual Violence,” in Henry and Powell, Preventing Sexual Violence, 64–83. Larcombe, “Limits of the Criminal Law,” 64. Larcombe, “Limits of the Criminal Law,” 68. Larcombe, “Limits of the Criminal Law,” 69. Larcombe, “Limits of the Criminal Law,” 70.

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Most relevant to an “ecosystems of injustice” approach are the tensions between the narratives upon which the international imperative to address sexual violence are based, and the realities of the injustice of everyday rape in a rights-based approach. It is this tension that has led to a backlash against international SGBV programs that seem misguided and have failed to live up to expectations. But these criticisms, I argue, are also misguided in that they are targeted at shadows and false narratives. Instead, I examine how we do justice for sexual violence in conflict in order to better understand how we could do a better job in terms of the injustice women suffer as victims of sexual violence. Forced sex, rape, occurs in peacetime as it does in war. While in war the incidence of rape increases, we have really only begun to understand the role of rape in conflict, and, just as hard evidence of rape in war has been lacking, so too is evidence of rape in conflict.43 By conflict I mean situations of instability, failed states, and gang and rebel violence. In examining the will to address sexual violence in asylum claims, criminal prosecution, and humanitarian response efforts, I am able to consider international protection as a negotiated process across international initiatives. In this way, we can move beyond the “usual approach of looking at male aggression and dominance” to “the norms and values in sociopolitical structures that influence the actions of the individual,” and ask, “How can a structural approach that takes into account intersecting forms of discrimination explain the different manifestations of sexualized violence?”44 In their study of sexual violence as a weapon of war, Baaz and Stern critique what they say is a nowcommonplace assumption that rape is a strategy or tactic in war. They want to make sure we do not lose sight that in war and conflict, men are human too, suffering loss, poverty, and hunger, and, as such, even as perpetrators of rape, they are victims of conflict who are silenced by the rape as a weapon of war narrative.45 While I agree that the rape as a weapon of war narrative has limited our understanding of the experience of rape in conflict for both men and women, it seems unproductive to highlight the motivation for the rapes as being poverty, when we know that rich men, well-paid and well-fed soldiers, and both victorious and vanquished armies rape. The question from the perspective of justice is why only some rape gets recognized, studied, and reported and, ultimately, becomes the object of justice. Indeed, even Baaz and Stern, in spite of their unique ability as researchers to critique governing logics

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Baaz and Stern, Sexual Violence. Halbmayr 2010, 31. Maria Baaz and Maria Stern (2013) Sexual Violence as a Weapon of War? Perception, Prescriptions and Problems in the Congo and Beyond. Zed Books.

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and discourses, fail to recognize that in the Balkans and Rwanda, while the Serbian rape camps and rape of Tutsi women have been recognized, the rape of Serb and Hutu women has never been adequately addressed. Whereas the question of justice to combat sexual violence focuses on ending impunity (counting up convictions) and, as such, gets caught up in the military narrative, with testimony of women instrumental in these efforts, I have focused on the testimony of women – those that have been heard as rape victims and those that have not – that is, beyond their instrumental function (in a Kantian understanding that places the women as the end of the testimony and not a means to an end of conviction). I have been interested in how testimony collected en masse becomes a reflection of international moral concerns and state interests that ends up leaving individual women empty handed, and in understanding how this en masse act of narrative creation through testimony relates to justice for victims of sexual violence. In doing this, I understand testimony as an interpretive process, a negotiation and renegotiation of power in the pursuit of justice. I examine justice concerning women in two cases that are on the frontiers of protection: sexual violence in conflict (DRC) and sexual violence that results from gang violence (Latin America). Although there is a legal separation between the two in asylum law, they are both essentially about gender-based violence. In the case of sexual violence, there is “moral outrage,” while in the case of gang violence there is not. In both the DRC/Great Lakes region of Africa (countries in the African Great Lakes region include Burundi, DRC, Kenya, Rwanda, Tanzania, and Uganda) and Latin American cases, there is an international narrative that US interests have fueled the violence. In both cases, the violence did not fit squarely within the definition of asylum but, through careful advocacy, gained ground. In both cases, the international humanitarian community has sought to intervene by offering protection to women. In both cases, testimonies of violence are central to both prosecution and proving persecution. And, in both cases, testimony of SGBV has proven problematic as evidence – issues of credibility have often undermined the legal process. Using the lens of testimony and examining the channeling of claims as “sexual violence” and “gang-based” allows me to draw out the vocabularies and normative framings that come together to form legal inscriptions of “gender justice.” These two cases allow me to examine the core argument: that official narratives of sexual violence are tied to foreign policy and state interests, and that justice, as it has been inscribed through the paradigms of persecution, prosecution, and protection, serves to reinforce the objectives of foreign and state policy interests at the expense of justice for the women it purports to serve. It’s not that I do not agree that framings

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such as “rape as a weapon of war,” “systematic rape as genocide,” “women as a particular social group,” or “gender mainstreaming” have enabled important new forms of protection for women; my intent is rather to examine how these framings relate to the broader concerns of social justice for women and the realities of the injustice of rape and, by stripping away the narratives that have created a piecemeal legal response to rape that is fraught with ambiguity, to develop a solid theoretical approach to sexual violence. Whereas these narratives are built around particular understandings of power and conflict, my analysis reminds us that these narratives ultimately serve foreign power interests and do not really get at the everyday reality of rape in these societies and the more complex view of the conflict that reveals its very local nature (neighborhood boys, etc.). This view is captured in Angelina Jolie’s film Milk and Honey, which shows the complexity of rape in the Bosnian war. In the film, a Serb man and a Bosnian women meet in a bar just before the war, an attraction forms, and they seem to be falling in lust, if not love. But then the war starts and, in order to save her, he locks her up with him. She becomes his sex slave, although in many scenes of their sexual encounters it’s difficult to say whether she is enjoying the sex or not. In the end she shoots him, and then we know she was raped. While the narrative can be framed as “rape as a weapon of war,” it is also not that, since they knew each other before the war. (Note that this was a complex issue at the Foca trials, but that the court did recognize that in war a woman cannot consent to rape. But is this a good thing? It still hinges the existence of rape on the context, and it does this because of the difficulty in proving rape. But it is unsatisfactory.) Examining the cases of the Great Lakes region of Africa and Central America side by side enables me to draw out the ways in which violence against women and conflict become framed and articulated in narratives that give rise to vocabularies of justice. “Certain regions of the South today come to be seen as bywords for conflict. Thus, even though substantial areas within Sub-Saharan Africa are handling tensions without large-scale violence, the continent is largely represented in the media in uni-dimensional terms. Analysis of conflict situations in any region of the world needs to take into account broad structural and geo-political features; thus Central America has been characterized by ‘peripheral status in the global economy; dominance of agriculture, external vulnerability, colonial history, deep social divisions and high levels of poverty’ while major zones within Central Asia are dominated by ‘bandit economies.’”46 46

Susie Jacobs, Ruth Jacobson, and Jennifer Marchbank, States of Conflict: Gender, Violence and Resistance (London: Zed Books, 2000), 4.

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Why these Narratives, Why Now? SGBV is “widely recognized as a critical concern for women in all parts of the world. It is prohibited in a wide variety of instruments, and is frequently named and condemned by international and regional human rights treaties bodies and domestic courts.”47 This leads Cook and Cusack to the conclusion that the foundation of the global campaign to eradicate violence against women was the naming of the wrong. While I would never dismiss the importance of the grassroots women’s organizations and movements in naming wrongful gender stereotyping, I think the more relevant question is: Why did this particular naming work, while framings in other times did not? And ought we be cautious about the militarized framing? If within the layers of stereotypes one can draw upon, one becomes successful, then we need to ask, “Why this one?” I argue that, in the case of sexual violence, particular narratives have taken root at different times in accordance with foreign policy objectives. “But lawyers, at least successful lawyers, do not just mobilize their legal expertise to achieve these ends. They must also mobilize ordinary storytelling practices that are present outside legal settings, in which credibility, coherence, and plausibility are all judged against a background of common knowledge, itself shot through with unthinking assumptions.” Contrary to the situation Scheppele addressed of Anita Hill’s sexual harassment, where many alternative narratives created a gap of plausible truths undermining her credibility, in the case of sexual violence, one narrative has emerged against which all women are measured. While there has been a dramatic shift in the past decade in the focus on SGBV and the connection between SGBV and social justice, it remains unclear whether there has been any real “on the ground” improvement in the lives of women in terms of SGBV. We seem to be swimming around in the same paradigm when what we need is a paradigm shift – and yet we are still within what Foucault calls an episteme – the very same one. Still, if in any given culture and at any given moment, there is always only one episteme that defines the conditions of possibility of all knowledge, whether expressed in a theory or silently invested in a practice.48 The approach I am presenting here joins those scholars who have studied the contradictions and gaps in the implementation of policies “between the broad principles and declarations made at international level about the 47

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Rebecca J. Cook and Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (Philadelphia: University of Pennsylvania Press, 2010), 40 Michel Foucault, The Order of Things: An Archaeology of the Human Sciences (New York: Pantheon, 1970), 168.

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importance of combating violence against women, and the reality of attempting to enact such policies on the ground,”49 and who seek to connect the global processes to understandings of conflict at the national level, community, household, and individual lives.50 In this way, the notion that heightened awareness has opened up a Pandora’s box such that it seems that violence has spread to civilian populations in places such as the DRC is better understood as part of a “gendered phenomenon within the context of patriarchal social relations and that all such violence should be situated analytically within a ‘sexual violence approach’ even where no overtly sexual act is involved.”51 Violence is always there (as it is in India and many other places); we just choose at different times and places to acknowledge it. As Liz Kelly points out, knowledge of sexual violence in armed conflicts is not new. “Brownmiller compiled evidence of its pervasiveness in 1975, including rapes of Scottish women in 1800 during the English occupation, during the German occupation of Belgium and France in 1914, and in World War II. Mezey notes: ‘Rapes of German women by Russian soldiers during the liberation were widely reported and charges of the raping of Chinese women in the “Rape of Nanking” were heard at the trials in Tokyo in 1946: 20,000 reports in the city during the first month of occupation.’”52 Whereas others have asked why and how violence against women has been minimized, denied, and hidden in the documentation of these events, my approach differs in asking: Why is rape only prosecuted or addressed sometimes? Who makes these choices and how are they made? Who do these choice best serve? I distinguish justice for sexual violence, as a moral outrage, from the injustice of rape, as a matter of social justice. The recent international focus on sexual violence has opened new doors in our acknowledgment of everyday rape, but how the international processes relate to the injustice of rape in the lives of women remains unclear. In other words, wartime rape is closely tied to everyday rape and, in this way, is the norm, not the exception (it just becomes politicized some times and not others). As Kim Scheppele has noted: My suspicion is that stories that shift in their focus, detail, or attribution of blame over time are a response to violence when violence is normatively unexpected. Such violence may be very common, but it may be culturally 49

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Fiona Macaulay, “Tackling Violence against Women in Brazil: Converting International Principles into Effective Local Policy,” in Jacobs, Jacobson, and Marchbank, States of Conflict, 144–62. Jacobs, Jacobson, and Machbank, States of Conflict. Jacobs, Jacobson, and Marchbank, States of Conflict, 2. Liz Kelly, “Wars Against Women: Sexual Violence, Sexual Politics and the Militarised State,” in Jacobs, Jacobson, and Marchbank, States of Conflict, 47.

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disguised as the rare deviation from generally accepted norms. Despite estimates that as many as fifty percent of all women will be victims of domestic violence at some point in their lives, and that nearly one in three women will be raped, woman-battering and rape are still portrayed as unusual occurrences that need special explanation in the individual case. The “normal” case is constructed as the nonviolent marriage or the un-raped woman, and the battered or raped woman stands out against this picture of normality as an exception. Because exceptions are generally explained by models that emphasize deviance, the women subjected to “deviant” practices come under the spotlight as participants, perhaps even willing participants, in deviant conduct. The woman is examined to see if she is to blame. For women, if violence is “not supposed to happen” or is “not supposed to happen to me,” then it may be hard to narrate the violence credibly because she must first explain to herself why this particular “I” was singled out for the violence that was not supposed to happen and why this particular “him” did this. To construct such a story, a woman must narrate into some powerful cultural headwinds, forces of opposition that appear natural, unless she can cast her experience in the light of an obvious, socially comprehensible narrative.53 Perhaps this violence is the statistical norm and not the freak exception. And perhaps the sexualized violence women experience is the result of women’s disadvantaged and sexualized position in the larger society. Perhaps it is not her personal and individual fault.54 But particular “true” stories and particular descriptive statements are often selected from among a set of arguably accurate versions of reality – it is just that other descriptions in the set give very different impressions about what is going on. The vexing question is not just whether the descriptions are accurate in some way, though it is crucially important to screen out lies, but, rather, how it is that some particular description instead of some other description comes to be forwarded as the authoritative version of events. This raises questions of power and ideology, of the “situatedness” of the descriptions that pass for truth, and of the social agendas they support.55 What a woman gains in solidarity with other women as a result of being lumped into the averages, she may lose in distinctiveness if her own experience veers from the statistical norm. As the women’s movement succeeds in breaking women free from a single conception of femininity, such statistical averages will become less and less accurate as descriptions of particular women’s experiences. The reliance on expert witnesses is immensely useful as a transition device between the world today and a world in which women’s stories have more power as a source of fact. In the future, however, reliance on 53 54 55

Scheppele, “Just the Facts, Ma’am,” 141–42. Scheppele, “Just the Facts, Ma’am,” 144. Scheppele, “Just the Facts, Ma’am,” 164.

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such witnesses may be seen as urging another single oppressive image of how women should react to sexualized violence on women who have diverse experiences and diverse reactions.56 Understanding the narrative strategies of women as the result of social and cultural forces larger than the individual case, as this article has tried to do, reempowers women to talk in their own voices and not just through the voices of experts.57 Understanding how the stories are socially constituted as believable in the first place is one important step in the process of making the legal system a force for the liberation of women from sexualized violence.58

In other words, SGBV is framed as an exception, when it is the norm. We see this problem also in the field assessments that underlie humanitarian policies. For example, a study of safe havens for women revealed that almost everyone in a refugee camp has need for safe shelter. In such a situation, the exception must be recognized as the norm for policy purposes. Official narratives, born of political and foreign policy interests, undermine the ability to bear witness to individual accounts of persecution. The first scholars to widely broach the topic were Charlesworth, Chinkin, and Wright, who collectively argued that “the structures of international lawmaking and the content of the rules of international law privilege men: if women’s interests are acknowledged at all, they are marginalized.” Since their groundbreaking work in 1991, numerous scholars have sought to elucidate the roles and needs of women, the hidden assumptions and biases in the “neutral” legal rules that affect women, and the extent to which international law and international institutions play a supportive or suppressive role in considering women’s real world experience.59

Contested Vocabularies and Messy Realities In examining the initiatives to combat and protect women from sexual violence and do justice, this chapter offers insight into the contestation over protection and status that takes place through the medium of law (formal and informal) and what this says about rights-based protection, the visibility of marginalized groups, and, ultimately, women as full constitutional citizens. It concerns the role of testimony, evidence, and the further contestation over 56 57 58 59

Scheppele, “Just the Facts, Ma’am,” 171. Scheppele, “Just the Facts, Ma’am,” 172. Scheppele, “Just the Facts, Ma’am,” 172. Groth, “Engendering Protection,” 224.

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narratives – official or unofficial – as victims of atrocities seek protection, and the ways in which speakers are silenced, rejected, or ignored, sometimes adopting the narratives in order to gain protection. Although the focus is on sexual violence, the chapter speaks from the bottom-up, as women who are victims of sexual violence in the DRC are villagers, internally displaced persons (IDPs), refugees, and asylum-seekers and, in all these roles, part of peace initiatives and transitional justice. By focusing on the complexity of women seeking justice in the DRC and Latin America, the chapter joins those scholars who have criticized monolithic understandings of women as “peacemakers” or “nurturing.” It joins scholars such as Rebecca J. Cook and Simone Cusack, who, in their book Gender Stereotyping: Transnational Legal Perspectives, challenge us to think about “which gender stereotypes the law should dismantle, in what contexts, in what ways, and for what reasons. How willing should a court or human rights treaty body be to reshape stereotypes that reflect gender norms?”60 In examining how justice is framed across international initiatives concerned with sexual violence and the protection of women, I am able to examine how stereotypes differ in the case of prosecution versus the field of protection, where what Cook and Cusack call “benevolent stereotyping” takes place as humanitarian efforts are seen as “protective” of women as a vulnerable population.61 As Cook and Cusack note, “International law has perpetuated sex stereotypes of women as weak, vulnerable, and fragile, and as a result, has a strong protective streak that has produced a subjugated category of persons in need of protection in such areas as employment and trafficking.”62 Their frontier work on the ways in which courts have inscribed or dismantled stereotypes is in line with my analysis of the need to inquire, “Vulnerable to what?” They argue that in the case of Yilmaz-Dogan v. The Netherlands (a Turkish foreign worker who was terminated because her employer believed that there was higher absenteeism among foreign female workers with dependent children), the Committee on the Elimination of Racial Discrimination found that the Dutch authorities had failed to protect Yilmaz’s right to work, in violation of state obligations under the Race Convention, and “recommended that the authorities ascertain whether Yilmaz was gainfully employed and, in the event that she was not, assist in the securing of alternative employment and/or provide equitable relief.” But they argue that “the Race Committee might have strengthened its reasoning . . . had it identified and directed the state to investigate how the 60 61 62

Cook and Cusack, Gender Stereotyping, 3. Cook and Cusack, Gender Stereotyping, 18. Cook and Cusack, Gender Stereotyping, 25.

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stereotype concerning higher absenteeism among female foreign workers with dependent children was used to deny them jobs.”63 In other words, it is important to distinguish negative from positive rights in gender justice. The positive rights needed, such that the vulnerability is more directly recognized (lack of child care in this case), are removed. According to Cook and Cusak, “Explaining how a gender stereotype, and the ideology on which it is based, persists in different structures, meanings, and traditions, is ‘key to identifying and reshaping the base of shared understandings on which desirable change, or progress, can build.’”64 A particularly relevant case Cook and Cusak address for my purposes is that of the Ciudad Juarez Inquiry. In 2005, following on earlier reports from numerous human rights commissions and agencies, the Women’s Committee issued a report on the “abduction, rape, and murder of women in Cuidad Juarez, Mexico . . . The events culminating in the inquiry can be traced back to 1993, when violence against women in Ciudad Juarez skyrocketed. Up to 400 women were estimated as having been murdered from 1993 to 2003; one third of these victims were reportedly sexually assaulted. In addition, up to 4,500 women reportedly disappeared. Victims were mostly young, attractive women of humble origins, employed in maquiladoras (i.e., assembly factories that produce for export) or local businesses, and/or attending school.”65 The Committee found that Mexico had not fulfilled its obligations to eliminate gender discrimination against women, yet Cook and Cusack state that it was a missed opportunity “to fully elaborate the wrong of gender stereotyping and its linkages to violence.”66 The Committee should have asked, “What are the attributes, characteristics and roles ascribed to the women of Ciudad Juarez?” and, in doing this, it would have named “the compound stereotype that poor, young, migrant women are inferior to men and other subgroups of women, and, therefore, once their value has been used up, they can be discarded like waste”67 (p. 167). And that it is this stereotype that contributes to the culture of impunity. This is the case not just for Mexico, but for DRC as well. I agree with Cook and Cusack that we need to move beyond the “dichotomous approach of either repudiating the allegedly static traditions of the past, or promoting women’s rights for the future”68 (p. 34). The women I met 63 64 65 66 67 68

Cook and Cusack, Gender Stereotyping, 30–31. Cook and Cusack, Gender Stereotyping, 33. Cook and Cusack, Gender Stereotyping, 165. Cook and Cusack, Gender Stereotyping, 167. Cook and Cusack, Gender Stereotyping, 167. Cook and Cusack, Gender Stereotyping, 34.

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though my field research did not always conform to the official narrative of them as mothers and peace-builders, and they did not always agree with the notions of sexuality, respect, and empowerment expressed in NGO sensitization or rule of law programs. Just like the rebel groups were not “rebels” in the sense in which they are portrayed in the media, the women were not victims in the way they are portrayed. They were engaged in complicated negotiated lives, and often involved in violence and oppression as “a component of ‘agency’, or ways in which individuals carve out an acceptable life for themselves within the constraints imposed by their various and possibly conflictual identities.”69 As El Bushra says, “Some might suggest that they have not yet ‘seen’ how they are being exploited. But in my observation it is more that their priorities and values are different from those of outside researchers.”70 Women were agents creating change in their lives with the tools and within the parameters they have available. Often, this meant that they were working within the narrative of sexual violence and funding established by the donors. But we need not make an exception of them. In many ways, they were not all that different from me or the women in my suburban community who, although educated and wealthy, continue to operate within the constraints of children and marriage as a structural barrier in our lives. Therefore, I agree with Cook and Cusack that “gender stereotypes can be understood as arising out of different cultures. The broader contexts of gender stereotypes require an understanding of the different meanings of culture, in part to avoid ‘widespread unreflective assumptions’ about culture.” They state: [A] dichotomous view ignores the fact that the seemingly intractable views about gender which feminists seek to change are tied to individual and group identities, formed through ongoing accretions and synthesis of old and new understandings of self and other. Feminist revelations can have little impact on identities they completely reject. They must make sense in terms of these identities. This requires not the triumph of new over old, but an integration between them that can generate transformed and transforming views about gender.71

Feminists have critiqued the international relations focus on states. The concept of “gender security” is an outgrowth of the human security approach that reframed the state-centric focus of security as one of economic and environmental or “non-traditional” security. At the root, these analyses all 69

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J. El Bushra, “Transforming Conflict: Some Thoughts on a Gendered Understanding of Conflict Processes,” in Jacobs, Jacobson, and Marchbank, States of Conflict, 81. El Bushra, “Transforming Conflict,” 83. Cook and Cusack, Gender Stereotyping, 34.

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involved contestations over narratives and power relationships in various guises. Jacobs, Jacobson, and Marchbank point out that for the NATO bombing in Kosovo: The use of rape as a strategy of terror and humiliation came to be specifically claimed as one of the justifications for interventions. More recently, mass rape was used as justification for intervention in Libya only to be discredited by a report by Amnesty International documenting that rape did not occur. In this way “gender security” has become another tool to advance foreign policy agendas. Like many human actions, gender framings may be double-edged and recognizing large-scale rape may also be part of constructing an entire population as a collective Other.72

As this scholarship makes clear, the central point of any feminist analysis is not merely about “adding” women to the list of important subjects to be considered and still less about merely offering platitudes about the importance of women to society; it is instead about looking at the hierarchical social relations (including gender relations) which lead to the injustices so prevalent in our world and the institutions and organizations that, either inadvertently or by design, perpetuate them.73 The feminist perspective argues that “sexual violence as a deliberate strategy in war and political repression by the state is connected in a range of ways to sexual violence in all other contexts.”74 “Most feminists who have addressed international politics have urged a focus not on war but on militarization, since it is militaristic culture which legitimizes violence as a way of resolving conflicts, or establishing and maintaining power hierarchies within and between states.”75 In placing the cases of East Africa and Latin America side by side and studying gender justice across initiatives of protection, prosecution, and persecution, my work is able to analyze the context of militaristic cultures and, thereby, question the role of different narratives of sexual violence in the face of agreement among women that “the most basic, shared, threat was being killed by a member of one’s own family . . . . That women are most likely to be assaulted by a man known to them, and particularly sexual partner.”76 Or, that the response to women who have been victims of sexual violence is problematic the world over. While there might be a legal argument

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Jacobs, Jacobson, and Marchbank, States of Conflict, 17–18. L.-A. Broadhead, “Re-packaging Notions of Security: A Sceptical Feminist Response to Recent Efforts,” in Jacobs, Jacobson, and Marchbank, States of Conflict, 31. Kelly, “Wars Against Women,” 45. Kelly, “Wars Against Women,” 49. Kelly, “Wars Against Women,” 53.

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for distinguishing sexual violence in armed conflict from other types of rape, from a moral or ethical standpoint there is not. And, from the perspective of the woman herself, who whether raped through armed conflict, frat boys, teacher, or close relative, there is little difference in terms of the damage it does to her life. What is the meaning of gender justice? There also does not seem to be much difference whether the rape was by a rebel group in DRC or a gang in Honduras in terms of the fundamental root of both in the desire to control territory and population. In all these cases, “sexual violence can be ritualistic . . . involving patterns in the acts, words and symbols used.”77 All rapes involving male groupings are systematic and follow chains of command (Kelly points to sports teams, private clubs, gangs, and secret societies as well as the military). The difference is that, in wartime, the “limited protections available to women and implicit toleration are replaced by condoning and even an outright policy of sexual violence.”78 My college, for example, spoke of a difficult situation in a class of college freshmen in the United States studying wartime rape in Bosnia when the boys offered that, in the breakdown of law and order, who wouldn’t rape? As opposed to human rights and rule of law professional reports that focus on highlighting the practices that violate internationally accepted human rights standards and assess customary justice against an idealized formal legal system,79 my research for the case studies examined the formal system as it functions in the “messy realities” of justice reform, taking into account “the sociocultural and political context that shapes local perceptions of justice and the dynamics of change.”80 As Isser states: Actual practice and everyday experience, far more than any written laws, determine the nature and quality of justice accessible to the population . . . empirical practice rather than written codes must serve as our starting point in any rule-of-law assessment – we need to examine the justice landscape as the population sees and acts in it.81

Isser outlines points of guidance for research methodology that include: (1) focus on the actual experiences of those seeking justice, (2) taking into account the inevitable variations from one location to another, (3) joint efforts between policymakers/practitioners and social scientists, (4) research as an ongoing 77 78 79

80 81

Kelly, “Wars Against Women,” 57. Kelly, “Wars Against Women,” 60. Deborah Isser, Customary Justice and the Rule of Law in War-Torn Societies (Washington, DC: United States Institute of Peace Press, 2011), 327. Isser, Customary Justice, 326. Isser, Customary Justice, 341.

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process over time that both informs policy and measures impact, and (5) integration of research into donor programming and national policy to empower local communities.82 As such, I have used an ecological framing in order to examine particular social structures as shared space.83 It is a layered approach that takes into account the inner core of an individual’s personal and biological history, the immediate context in which personal relationships occur, the institutional and social context, and the outer political, economic, and social context such as social norms, governing and judicial structures, and financial and political policies in which human rights are encouraged or inhibited.84 I have used this deeper understanding of the situated context to examine the relations of justice. Particularly relevant for this study, Isser found the need for more focused research attention on how the dynamics of legal pluralism affect women’s rights, not just in terms of normative discrimination and access to formal and informal systems, but “to examine how rights are mediated by social norms and community power holders, and how to harness mechanisms of change.”85 What I am advocating here is an act of engaged theory that moves between detailed empirical analysis of “doing” justice, the “act” of justice (patterns of action), vocabularies of justice (integrational analysis), and, finally, engagement with social justice (categorical analysis/ways of being) in the contexts of SGBV (at UConn they said I should look at the spectrum of rape), the actors, programs that have been created, and processes to combat sexual violence and the theoretical basis of the legal and social framings.

conclusion: conflict, disorder, and everyday rape In examining the international response to sexual violence from the perspectives of prosecution, persecution, and protection, what emerges is an understanding that doing justice for sexual violence has been an iterative process that has worked itself backward from conflict to disorder more generally and, ultimately, the problem of everyday rape. As Alexander Betts maintains, “Existing international relations scholarship has tended to focus on processes of international institutional change at the international level, to the neglect of a focus on how international institutions are translated and changed in their encounters with domestic laws and

82 83 84 85

Isser, Customary Justice, 344–45. Carol Pavlish Pavlish, Title. Isser, Customary Justice, 366.

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politics.”86 Law and Society scholarship has been filling that gap by studying the dissemination of human rights norms.87 While acknowledging that it is the interests of national government elites that matter88 and that there is a normative ambiguity at the global level, this explains why we have not successfully combatted sexual violence. Betts finds that “in the context of normative ambiguity at the global level, interests at the domestic level will define national and, in turn, international responses.”89 But in the case of sexual violence, there is no normative ambiguity. Yet you find that still national interests trump producing what Betts would call “gaps in the existing international refugee protection regime” for women refugees. His greater insight is when he says: Rather than necessarily assuming that all gaps can only be addressed by immediately reverting to reform at the level of international bargaining, it may also be possible to address some gaps further downstream – at the levels of institutionalization or implementation. It may make sense to begin by considering what can be changed at the level of implementation, and then the level of institutionalization, before finally deciding on the need for change at the level of international bargaining.

Overall, Betts highlights the role of “policy levers” for influencing change and that the lack of legal precision means that incentives matter for how old institutions respond to new challenges.90 If so, are women pawns in a game of politics? Whereas refugee law claims to be an abstract system of rules which can be identified, objectively interpreted, and enforced, I argue (along with B. S. Chimni) that it is a system of power relations.91 In a similar vein, Susan Kneebone et al. (2014) posit the idea of law as process as well as law as power, where refugees “have no option but to try to obtain formal refugee status, but as ‘refugees’ they may end up as persons without the ‘right to have rights’ (and hence, ironically, in many ways without protection).”92 Testimony is at the core of both 86

87

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89 90 91

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Alexander Betts and P. Orchard, Implementation and the World Politics (Oxford University Press, 2014), 196. S.E. Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago: University of Chicago Press, 2006). Alexander Betts 2008, Global Migration Governance, GEG Migration Policy Center Working Paper 2008/43 at www.migrationpolicycentre.eu/docs/SummerSchool2013/readings/Awad_ Reading.pdf [accessed 11/12/2018]. Betts and Orchard, Implementation, 196. Betts, Implementation, 197. B. S. Chimni, “The Geopolitics of Refugee Studies,” Journal of Refugee Studies 11, no. 3 (1998): 350–374. S. Kneebone, D. Stevens, and L. Baldassar, Refugee Protection and the Role of Law: Conflicting Identities (London: Routledge, 2014).

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law as process and law as power. Indeed, as Hathaway argues, “Refugee Law as it exists today is fundamentally concerned with the protection of powerful states.”93 The assertion is made that refugees today are different than they were at the time of the 1951 Convention. Chimni counters this myth of difference and asserts that refugee law has always been political. Refugees were simply pawns in Cold War politics.94 Accordingly, “[t]he myth of difference went hand in hand with an internalist interpretation of the root causes of refugee flows which squarely laid the blame at the door of postcolonial societies and states, underestimating the significance of external factors.”95 The language of human rights – including the prosecution in the ICC and humanitarian protection efforts such as Responsibility to Protect (R2P) – have provided a form of containment of refugees in their source countries. At the core of the tension between the rights of states to regulate movement of people and those whose life and liberty are at risk is the critical role of power. Again as Chimni states: “For if the state of physical origin alone is responsible for refugee flows, then other countries would appear to have no obligation to resettle those fleeing inhumane conditions.”96 As this chapter illustrated, the situation is all the more dire in the context of gender-based prosecution. In this latter instance, neither are there set standards for the determination of victimhood, nor gender-based and gendered prosecution are included in the flat reading of the jurisprudence that frames international refugee law and humanitarian law. For there to be any hope of justice, even transitional justice, such atrocities first need to be identified as crimes and root causes for forced migration, dispossession, and displacement.

references Baaz, M. and M. Stern, Sexual Violence as a Weapon of War? Perception, Prescriptions and Problems in the Congo and Beyond. Zed Books, 2013. Betts, A. Global Migration Governance, GEG Migration Policy Center Working Paper 2008/43 at www.migrationpolicycentre.eu/docs/Summer School2013/readings/Awad_Reading.pdf [accessed 11/12/2018]. Betts, A. and P. Orchard, Implementation and the World Politics. Oxford University Press, 2014.

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J. Hathaway, “Reconceiving Refugee Law and Human Rights Protection,” Journal of Refugee Studies 4 (1991): 113–14. Chimni, “Geopolitics,”221. Chimni, “Geopolitics,” 216. Chimni, “Geopolitics,” 226.

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Blacklock, C. and Crosby, A. “The Sounds of Silence: Feminist Research across Time in Guatemala.” In Sites of Violence: Gender and Conflict Zones, ed. W. Giles and J. Hyndman, 45–72. Berkeley: University of California Press. 2004. Broadhead, L.-A. “Re-packaging Notions of Security: A Sceptical Feminist Response to Recent Efforts.” In Jacobs, Jacobson, and Marchbank, States of Conflict: Gender, Violence and Resistance, 27–44, 2000. Chimni, B. S. “The Geopolitics of Refugee Studies,” Journal of Refugee Studies 11 (3): 350–374. Cockburn, C. “The Continuum of Violence: A Gender Perspective on War and Peace.” In Giles and Hyndman, Sites of Violence, 24–44, 1998. Cook, Rebecca J. and Cusack, Simone. Gender Stereotyping: Transnational Legal Perspectives. Philadelphia: University of Pennsylvania Press, 2010. El Bushra, J. “Transforming Conflict: Some Thoughts on a Gendered Understanding of Conflict Processes.” In Jacobs, Jacobson, and Marchbank, States of Conflict: Gender, Violence and Resistance, 66–86, 2000. Fletcher, G. “Just ‘How’ Do We Create Change?: Sites of Contradiction and the ‘Black Box’ of Change in Primary Prevention.” In Henry and Powell, Preventing Sexual Violence, 127–149, 2014. Giles, W., and J. Hyndman, eds. Sites of Violence: Gender and Conflict Zones. Berkeley: University of California Press, 2004. Groth, L. Engendering Protection: an Analysis of the 2009 Kampala Convention and its Provisions for Internally Displaced Women. International Journal of Refugee Law 23, no 2 (2011): 221–51. Hathaway, J. “Reconceiving Refugee Law and Human Rights Protection.” Journal of Refugee Studies 4 (2011): 113–132. Henry, Nichola and Anastasia Powell. Preventing Sexual Violence: Interdisciplinary Approaches to Overcoming a Rape Culture. London: Palgrave Macmillan, 2014. Isser, Deborah. Customary Justice and the Rule of Law in War-Torn Societies. Washington, DC: United States Institute of Peace Press, 2011. Kelly, Liz. “Wars Against Women: Sexual Violence, Sexual Politics and the Militarised State.” In Jacobs, Jacobson, and Marchbank, States of Conflict, 45–65. Kneebone, S., D. Stevens, and L. Baldassa. Refugee Protection and the Role of Law: Conflicting Identities. London: Routledge, 2014. Jacobs, Susie, Ruth Jacobson, and Jennifer Marchbank. States of Conflict: Gender, Violence and Resistance. London: Zed Books, 2000. Larcombe, W. “Limits of the Criminal Law for Preventing Sexual Violence.” In Henry and Powell, Preventing Sexual Violence, 64–83

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Macklin, A. “Like Oil and Water, with a Match: Militarized Commerce, Armed Conflict, and Human Security in Sudan.” In Giles and Hyndman, Sites of Violence, 75–107, 2004. Maxwell, C. “The Prevention of Sexual Violence in Schools: Developing Some Theoretical Starting Points.” In Henry and Powell, Preventing Sexual Violence, 105–26, 2014. “Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA.” Amnesty International, 2007. www.amnestyusa.org/ pdfs/MazeOfInjustice.pdf. Merry, S. E. Human Rights and Gender Violence: Translating International Law into Local Justice. Chicago: University of Chicago Press, 2006. Preston, Julia. “Report Finds No Evidence of Sexual Abuse at Texas Immigration Detention Center.” New York Times, July 2, 2015. Rittner, C. “Are Women Human.” In Rape: Weapon of War and Genocide, ed. C. Rittner and J. K. Roth. St. Paul: Paragon House, 2012. Sassen, Saskia, ed. Deciphering the Global: Its Scales, Spaces and Subjects. New York: Routledge, 2013. Seifert, R., “War and Rape: A Preliminary Analysis.” In R. Jamieson, ed. The Criminology of War, Routledge, 307–327, 1994. Scheppele, K. L. “Just the Facts, Ma’am: Sexualized Violence, Evidentiary Habits, and the Revision of Truth.” New York Law School Law Review 37 (1992) 123–172. Smith, Andrea. Conquest: Sexual Violence and American Indian Genocide. Durham, NC: Duke University Press, 2015. Tofte, Sarah. “A Needed Revolution: Rape and U.S. Justice.” Amnesty International, April 9, 2012.

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9 Transitional Justice, Reconciliation, and Reconstruction Process The Case of Former LTTE Female Combatants in Postwar Sri Lanka Nasreen Chowdhory and Shamna Thachampoyil

introduction The present Sri Lankan state acclaims itself as a country that uprooted terrorism from its soil by defeating the LTTE in the civil war in May 2009. This victory and consequent “peace” came at a significant human cost of destruction, displacement, and loss of lives. The chapter asserts that the idea of transitional justice in Sri Lanka needs to be mooted, especially in conjunction with the ground realities of the Sri Lankan society and state. In this relation, the chapter proposes that transitional justice in the postwar Sri Lanka will be incomplete without looking into the aspect of political agency of former female “Liberation Tigers of Tamil Eelam” (Tamil Elam Vitutalaip Pulikal) combatants during the conflict.1 The analysis of political agency will focus on the multiple and incongruous gender roles performed by these ex-militant women during the conflict. This is an essential component to ensure their demobilization and eventual reintegration to the civilian society, a transition that would otherwise be limited to a mere disarmament of these combatants with the culmination of the war.2 Such an The authors would like to thank Namreeta Kumari and Sagnik Banerjee for their comments and help. The authors would like to invite the readers to read this chapter in tandem with the work of Jessica Chandrashekar in this volume. 1 “Tamil Elam Vituthalai Pulikal” or “Liberation Tigers of Tamil Elam” is a militant organization founded in 1976 by Velupillai Prabhakaran that led a secessionist movement in Sri Lanka. It aimed to establish a separate state of “Tamil Elam” for ethnic Tamilians in northern and eastern parts of Sri Lanka, which led to Sri Lankan civil war from 1983 to 2009. Prabhakaran was killed by the Sri Lankan government forces and LTTE was defeated in 2009 by Sri Lankan military, bringing an end to the civil war. 2 On the critical debate of reintegration to society, see Marisa O. Ensor’s work in this volume on child soilders and combatant youth reintegration.

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analysis involves deconstructing the prevalent gender stereotypes in the framework of conflict, as most conflict resolution and peace-building mechanisms tend to equate women with victimhood, thus overlooking the aspect of female excombatants. An intricate analysis of feminized political prejudices revolving around militant women and their actions requires the realization that truth lies further than dichotomies of agency and victimhood. Reliance on such “superfluous hyphenations” where women are hyphenated with the construct of victimhood overlooks their agency in actions committed as a combatant. This clouds the entire transitional justice process and stigmatizes the ex-combatants from claiming the benefits of Disarmament Demobilization and Reintegration mechanisms. In this chapter, we argue that in post-conflict zones like Sri Lanka, women ex-combatants constitute a category that needs to be mainstreamed into the reintegration process by challenging the gendered assumptions on women and conflict. Irrespective of the multiple rebel movements and ethno-nationalist struggles across the world that saw a considerable participation of women as combatants, there is still very limited academic literature that engages with the gendered nature of militancy, especially in the context of transitional justice.3 Much of the existing work treats the female participation in political violence as just another variable required for the analysis of protracted armed conflicts.4 This limits our understanding of the various causative factors responsible for the mobilization of women in such violent conflicts.5 In particular, mobilization of Tamil women in the LTTE is crucial in determining the agency of these women vis-a`-vis their participation in the Sri Lankan armed conflict.6 3

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Some scholars, like Laura Sjoberg, propose that most wars use protecting women through a “beautiful soul narrative” as one among the many justifications of war. See Laura Sjoberg, “Women Fighters and the Beautiful Soul Narrative,” International Review of the Red Cross 92, no. 877 (2010): 53–68. Scholars like Samantha Godec examine the impact of protracted armed conflicts on the rights of the women. See Samantha Godec, “Between Rhetoric and Reality: Exploring the Impact of Military Humanitarian Intervention upon Sexual Violence – Post-Conflict Sex Trafficking in Kosovo,” International Review of the Red Cross 92, no. 877 (2010): 235–52. The conflict in Sri Lanka encompasses an entire gamut of problems related to language, a historical contestation over the former glory of homeland, and prolonged separatist agitations. The initial emphasis on pluralist Sri Lankan polity and society gradually led to demands of “defensive nationalism,” which secured the supremacy of Buddhism and the Sinhala language over the minority Tamil culture, yet Sri Lanka is a multiethnic, multireligious, and multicultural society. See Jonathan Spencer, ed., Sri Lanka: History and the Roots of the Conflict (London: Routledge, 1990); Stanley Jayaraja Tambiah, Buddhism Betrayed? Religion, Politics, and Violence in Sri Lanka (Chicago: University of Chicago Press, 1992). The “Sinhala Only” movement and centralization of power in the office of the President under the unitary system of government led to Sinhalese–Tamil polarization along ethnic lines. These changes were part of the postcolonial state policies of “overt majoritarianism,” which favored the majority over its minorities.

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The surviving ex-LTTE female combatants have to renegotiate their identity as “Tamil woman” in postwar Sri Lanka, which necessitates an understanding of whether they have been credited with political agency in peacetime. In order to have an inclusive reconciliation and rehabilitation of Tamils in the north and the north-east parts of the country, and in order to make transitional justice a success in Sri Lanka, it is imperative to address the debates on former female LTTE militants and their role in the unfolding transitional justice schemes. This chapter begins with an analysis of transitional justice and its efficacy in the Sri Lankan context, and then proceeds to link this with the shifting gender roles in Sri Lanka. The chapter proposes that transitional justice needs to be reexamined in relation to the former LTTE women, especially in peacetime or the postwar period. After providing a brief understanding of the LTTE women, the chapter engages with transitional justice and how the former LTTE women can be located within the discourse.

problematizing transitional justice in postwar sri lanka The idea of transitional justice in Sri Lanka was received with much skepticism by many. The state of Sri Lanka attempted to muffle the voices from the various civil societies that were attempting to bring justice and provide a corrective to wrongs committed by the Sri Lankan army, especially during the last leg of the war that led to the crushing defeat of the LTTE. One of the responses adopted by the Sri Lankan government on human rights violations was to constitute the Lessons Learnt and Reconciliation Commission (LLRC). The LLRC was a Sri Lankan state response to address concerns raised by the international community, especially in the context of excesses committed by the army during the war with the LTTE. But most discussion on reconciliation and reconstruction in post-conflict Sri Lanka will remain an incomplete and noninclusive process until the issue of the applicability of transitional justice measures to female excombatants of the LTTE is adequately addressed. This warrants an analysis of the sociopolitical and cultural framework that motivated Tamil women to join the LTTE, especially with the political agency during their struggle with the Sri Lankan state. Questions can be raised as to how these gender relations transform in the aftermath of conflict and how this impacts the question of transitional justice. It is vital to answer these questions, as transitional justice for these exLTTE female cadres rests on deconstructing the transformation of gender roles, and their consequent rehabilitation and integration into Tamil society in Sri Lanka calls for an attempt to answer the above questions

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During the postwar period, the Sri Lankan army has exhibited a lack of accountability, but also blatant disregard of international norms. This was reflected in the way the LLRC was constituted, as a “home grown” response to the demands of conflict resolution and peace-building that emerged from the international community. The LLRC’s conception of reconciliation was based on the achievement of a national “oneness” and “common identity.”7 This conception is consistent with both the “Sinhaliazation” of the country’s institutions and an ongoing centralization of power that implies a statebuilding project based on Sinhala-Buddhist nationalist hegemony.8 Arguably, the LLRC was instituted to reinvest the state with legitimacy and to whitewash state conduct on the issue of accountability for mass atrocities and crimes.9 This became an important instrument in the hands of the Sri Lankan state, which sought to absolve itself of all responsibilities during the war and what emerged in the aftermath of the war with the Sri Lankan army and the LTTE. The perception was that peace-building efforts could be sustained only if they emerged within the people; but the course of the reconciliation process that has been implemented in Sri Lanka so far reveals that such reasoning is a pretext to subvert interference from the international community toward enforcing accountability, especially in the postwar period. Traditional debates on transitional justice often engage a transition to democracy from an authoritarian or less democratic regime.10 O’Donnell refers to the link between democratization and transitional justice mechanisms as an “interval between one political regime and another.”11 Such a discernment of a transition to democracy is challenging in the Sri Lankan case, as the Tamil population perceives it as a “homogenizing” process in a context where, ethnically, Sinhalese citizens constitute the majority and Tamils the minority. It is imperative to pay attention to the concerns and fears of the Tamil population in the reconciliation process, which somehow seems absent in reality. The International Crisis Group opines that the Government 7

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See Richard Gowing, “War by Other Means? An Analysis of the Contested Terrain of Transitional Justice under the ‘Victor’s Peace’ in Sri Lanka,” London School of Economics Working Paper 13, no.138 (January 2013):1–39. See Gowing, “War by Other Means?”; Kristine Hoglund and Camilla Orjuela, “Friction and the Pursuit of Justice in Postwar,” Peacebuilding 1, no. 3 (2013): 300–16. Sharika Thiranagama, In My Mother’s House: Civil War in Sri Lanka (New Delhi: Zubaan, 2013). Antonio Costa Pinto, “Authoritarian Past and South European Democracies: An Introduction,” South European Society and Politics 15, no. 3 (September 2010): 339–58. Guillermo O’Donnell, “Transitions, Continuities and Paradoxes,” in Issues in Democratic Consolidation: The New South American Democracies in Comparative Perspective, ed. S. Mainwaring, G. O’Donnell, and J.S Valenzuela (Notre Dame, IN: University of Notre Dame Press, 1992), 17.

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of Sri Lanka has largely conflated the resettlement and reconstruction process undertaken in the north and the north-east with reconciliation.12 Even though it may aid in bringing about considerable economic development in the region, sociopolitical reconciliation and transitional justice cannot be substituted with economic reconciliation that favors one community over another. Moreover, in this context, the reconstruction efforts may serve as an excuse for maintaining the presence of the Sri Lankan army in this area without undertaking genuine efforts to demilitarize the region, thereby adding to the concerns of the Sri Lankan Tamil community. Interestingly, every post-conflict society passes through the three stages of peace-keeping, peace-making, and peace-building. Peace-building is implemented through effective transitional justice, which ensures sustainable “positive peace.” The efficacy of the transitional justice mechanisms adopted is vital to ensure that such efforts bring about a transformation of the inherent structural conflict, rather than stabilizing the scenario through absence of overt violence. The expectation that transitional justice will be “retributive and restorative”13 is a narrow understanding of transitional justice, which needs to be broadened to challenge the narrative of denial and cultural impunity of parties to conflict. Transitional justice mechanisms like truth commissions are necessary to develop a collective memory of the conflict where both parties to the conflict “participate in the construction of collective narratives, and shape collective memory; a process that may go with many contradictions.”14 The Government of Sri Lanka needs to bring in such participative efforts in transitional justice and undertake “truth seeking,” as such truth commission reports act as an effective medium that tries to curtail the impact of the construed and fabricated narrative of the conflict, thereby establishing the “boundaries of acceptable disagreement and debate about the past.”15 This is important to give a platform for both victims and former combatants in Sri Lanka to locate their identity in the dichotomy of the “perpetrator–victim” complex without being assimilated as mere “terrorists” in the official narrative of the Government of Sri Lanka. 12

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International Crisis Group, Sri Lanka’s North II: Rebuilding Under the Military (Colombo/ Brussels: Asia Report, 2012). Jac Armstrong, “Rethinking the Restorative–Retributive Dichotomy: Is Reconciliation Possible?” Contemporary Justice Review 17, no.3 (2014):362–74. Judy Barsalou and Victoria Baxter, “The Urge to Remember: The Role of Memorials in Social Reconstruction and Transitional Justice,” United States Institute of Peace, Stabilization and Reconstruction Series 5 (January 2007): 34–6. Martha Minow, “The Hope for Healing: What Can Truth Commissions Do?,” in Truth v. Justice: The Morality of Truth Commissions, ed. Robert I. Rotberg and Dennis Thompson (Princeton: Princeton University Press, 2000), 236.

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Patricia Lundy suggests that the discourse on transitional justice has given an overt emphasis to “justice” in transitional post-conflict societies and limited the conceptualization of justice to a “legal” framework.16 This problematizes the transitional justice paradigm in two ways. First is the preoccupation with transitional justice as a means to implement the “rule of law” and thereby to usher in legal reform in the post-conflict scenario. In countries like Sri Lanka, the contours of such legal and constitutional reform17 are often set according to the dictums of the stat, further enforcing the idea of a “victor’s peace.” The Sri Lankan government under former president Mahinda Rajapaksa had refused to accept accountability for various humanitarian crimes committed during the civil war. This culture of impunity and denial of responsibility showcased by the Rajapaksa regime was further reflected in the way they curtailed even civil society activity by preventing any minuscule progress of transitional justice in Sri Lanka.18 Compared to the Mahinda Rajapaksa administration, the Sirisena government has brought in certain legal reforms like legislative and statutory backing for setting up an “office for missing persons” to provide information on people who were disappeared during the course of Sri Lankan civil war. Yet, it conveniently has chosen not to act on constituting a “hybrid judicial mechanism,” which would comprise of appointing a mix of international and domestic judges. Neither has the Sirisena government passed any legislation on the pressing demands of Tamils in the north and the east to retrieve the land occupied by the military forces of Sri Lanka. There have also been instances of arbitrary arrests and detentions19 even years after the end of Sri Lankan war, which signifies the convenient and limited implementations of transitional justice by the Government of Sri Lanka. Secondly, the Western liberal notion of justice as a “universal” idea diverts attention from the “rectificatory and distributive”20 aspects of transitional justice. The rectificatory approach is necessary to own up to moral responsibility for the violence and abuses committed by both parties in conflict. This is all the more significant in conflicts like that of Sri Lanka, where there is 16

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Patricia Lundy and Mark McGovern, “Whose Justice? Rethinking Transitional Justice from the Bottom Up,” Journal of Law and Society 35, no. 2 (June 2008): 265–92. Editorial, “Elusive Reconciliation,” The Hindu, March 6, 2017, www.thehindu.com/opinion/ editorial/elusive-reconciliation/article17413024.ece. “For Sri Lanka to Break Cycle of Impunity Promises Need to be Kept,” International Centre for Transitional Justice, October 26, 2015, www.ictj.org/news/sri-lanka-break-cycle-impunitypromises-need-be-kept. Ibid. Rama Mani, Beyond Retribution: Seeking Justice in the Shadow of War (Malden, MA: Polity Press, 2002), 17.

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a pronounced power asymmetry between the parties to the conflict. The significance of the distributive aspect of justice is to ensure that systemic and structural inequalities are addressed by distributing resources in a fair and just manner among all stakeholders. Such an approach would also bring out the fallacy of the Sri Lankan government referring to the war as a “war on terror,”21 rather than acknowledging the deep-rooted “ethno-political” tensions that led to conflict. Moreover, any transitional justice mechanism indirectly influences the reconstitution of the institutional structure of the state. By undertaking the reconciliation process in the north and the east, the Sri Lankan state covertly engages with a nation-building process that homogenizes the ethnic differentiation that existed in pre-conflict Sri Lanka.22 Reconciliation should be a participative approach between both parties of the conflict, which does not reflect the power asymmetry of conflict times. Furthermore, reconciliation by definition means reconciling with the past, and the idea of transitional justice has more to do with “dealing with the past.” Analyzing the discourses in which notions such as “reconciliation” and “truth-telling” have been packaged by Sri Lankan political elites, it has been argued that the Government of Sri Lanka has appropriated the language of the transitional justice paradigm while simultaneously stripping it of its normative content.23 Therefore, the particular discourses that have been deployed serve important political functions in terms of consolidating the authority of the regime, concealing the continued domination of the Tamil population, and deflecting demands for accountability. And it is in this sense that the Government of Sri Lanka has adopted transitional justice initiatives that are lacking in substance and initiated a move toward a “negative peace.” As Kristine Ho¨glund and Camilla Orjuela assert, the assumption that “transition” has occurred in Sri Lanka – which underpins state mechanisms of reconciliation – suggests that “transition” from war to peace involved the righting of political injustices limited to the existence of “terrorism.” However, the end of the war did not mark a transition “from a militarised society to a nonmilitarised society,” nor “from an undemocratic to a democratic society.”24 21

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“Sri Lanka Is Being Penalised for Ending Terrorism: Mahinda Rajapaksa,” The Deccan Chronicle, May 22, 2014, www.deccanchronicle.com/140521/world-neighbours/article/srilanka-being-penalised-ending-terrorism-rajapaksa. Harshana Rambukwella, “Reconciling What? History, Realism and the Problem of an Inclusive Sri Lankan Identity,” International Centre for Ethnic Studies, Research Paper No. 3 (2012):1–21. Rosemary Nagy, “Transitional Justice as Global Project: Critical Reflections,” Third World Quarterly 29, no. 2 (2008): 275–89. Ho¨glund and Orjuela, “Friction and the Pursuit of Justice,” 307.

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Transition in the Sri Lankan context meant moving toward a more hegemonic Sinhalization and proclaiming a virulent nationalism that chooses to exclude the other, i.e., the Tamil as default. This entire narrative of transition was built around reconciliation in postwar, post-LTTE Sri Lanka. Sharika Thiranagama notes that “the state has to continually perform itself as such through spectacles and languages of stateness”;25 “transitioning states” also have to perform themselves as such by appearing to adhere to the framework of liberal transition. The transitional justice paradigm “has come to dominate debates on the intersection between democratization, human rights protections, and state-reconstruction after conflict.”26 The International Centre for Transitional Justice (2009) lays out these measures as “prosecuting individual perpetrators; offering reparations to victims of state-sponsored violence; establishing truth-seeking initiatives about past abuse; reforming institutions like the police and the courts; and removing human rights abusers from positions of power.” Consequently, Nadim Rouhana asserts, the term “reconciliation” is appropriated to carry forward and legitimize state agenda, while taking away the necessary conditions and underlying meaning – which is contested in the literature, and includes accountability, truth-telling, admission of historical responsibility, and the re-structuring of social and political relationships.27 The ICG observed that “resettlement and reconstruction, while necessary preconditions for successful reconciliation, are often conflated by the government with reconciliation itself.” Arguably, the process of according reconciliation was more of a consolidation of Sinhala identity and retelling the truth without compromising the Sinhala identity, yet questioning the Tamil identity. In this case, the notion of “reconciliation” appears to have been deployed as a cover for the consolidation of the Government of Sri Lanka’s authority over the Tamil population in the north and the east of the country.28 More generally, it confirms the idea that in Sri Lanka the very idea of transitional justice was conceived as an unambiguously progressive and unifying project designed to address the legacy of “past conflict,” without necessarily addressing concerns related to human rights violations or oppression of minority rights. By combining old goals (government domination of the north and east) 25 26

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Thiranagama, In My Mother’s House, 102. Kieran McEvoy, “Beyond Legalism: Towards a Thicker Understanding of Transitional Justice,” Journal of Law and Society 34, no. 4 (November 2007): 412. Nadim Rouhana, “Key Issues in Reconciliation: Challenging Traditional Assumptions,” in Intergroup Conflicts and Their Resolution: A Social Psychological Perspective, ed. Rotberg Daniel Bar-Tal (New York: Taylor & Francis Group, 2011), 300. Gowing, “War by Other Means?” 16.

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with new discourses rooted in transitional justice (“reconciliation”), the Sri Lankan regime has demonstrated the potential, as Bell notes, for transitional justice rhetoric to serve simply “as a vehicle for pursuing the same old conflict.”29 Most of the transitional justice mechanisms route their transition to a peaceful future by rooting themselves in the narrative of the past. While facilitating this transition to a reformed post-conflict society, these mechanisms also tend to institutionalize the memorialization of the conflict through shared narratives emerging through truth-seeking commissions and other reconciliation measures. It is necessary to understand the LTTE female combatants in their specific sociocultural framework, rather than being subsumed as a mere “perpetrator/victim” in the larger narrative designed by the Sri Lankan government, which it perpetuates through limited “home grown” transitional justice mechanisms like the LLRC.

locating tamil women in the sociocultural context of sri lanka In order to understand the shift in gender roles that happened during the Sri Lankan–Tamil civil war spanning from 1983 to 2009 and thereafter, one has to first look at the social and political standing of Tamil women in pre-conflict Sri Lanka. The relative degree of liberation and empowerment experienced by women within the LTTE needs to be analyzed against this sociopolitical context in which they were situated. Like most traditional societies, in Tamil society the birth of a female child is seen as a liability in contrast to the perception of a male child as an asset. Furthermore, Tamil women in Sri Lanka had to fit into the ideal construct of “sumangali,” where being ideal Tamil woman implied getting married and, by extension, doing household chores and childrearing dutifully. Adherence to vows of matrimony made her submissive to the gender hierarchy where “adakkam” (self-control) and “othukkam” (modesty) were identified as the most desirable traits. Symbolically, these are reflected by the saree-clad woman who wears red vermillion and long hair decorated with flowers. The inauspiciousness of an unmarried/widowed woman in Tamil society is equally significant since it denies her the freedom to dress in such a manner. Her upbringing trains the Tamil woman to fulfill the expectations of the society as “fertile nurturer, chaste woman, spiritual and dutiful housewife.”30 Theoretically, this is in agreement with 29

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Christine Bell, “Transitional Justice, Interdisciplinarity and the State of the ‘Field’ or ‘NonField,’” The International Journal of Transitional Justice 3 (2009): 25. Partha Chatterjee, “The Nationalist Resolution of Women’s Question,” in Recasting Women: Essays in Colonial History, ed. by Kumkum Sangari and Sudesh Vaid (New Delhi: Kali for Women, 1997), 238.

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Judith Butler’s notion of “gender as performative,”31 as the gendered identities of both the masculine and feminine are ascribed by their social and political context and are perpetuated by the particular ideas and expectations society has about men and women. Such adherence to conventional norms clearly delineated the “private” and “public” spheres for Tamil women prior to the conflict. The divide of “public” and “private” implicitly demanded the restriction of women to the domestic sphere of household work and childcare, thereby defining the contours of the “private’ space.”32 Males, on the other hand, were relegated to the larger “public” sphere, which bestowed them the freedom to be explicit about their political opinions and be active in the larger civic society. In the case of Tamil society in Sri Lanka, this emphasis on “public” space was all the more evident due to the ethnic polarization and consequent militarization, which primarily excluded women. Men were vocal about their nationalist sentiments, which were evident in their participations in public meetings and formation of political parties. Tamil women, despite their education and significant participation in professional work relative to Tamil men, were not equally forthcoming regarding their political opinions, and often such discussions were restricted to “hidden space of kitchens and dens,”33 emphasizing their “private” space. Such an explicit distinction of “public” from “private” reflected the engendering of political voices in Tamil society by rendering women “politically invisible.”34 Hence, the introspection of “political agency” of Tamil women in pre-conflict Sri Lanka is very limited, due to their confinement to the “private” sphere. According to this framework, women were expected to carry on the customs and traditions of Tamil culture, while men were expected to defend and protect the territorial construct of the Tamil nation that consolidated these traditions. Radhika Coomaraswamy uses the term “burden of representation,”35 put forth by Yuval-Davis, to explain this perception of women as agents who disseminate the cultural values associated with the community they belong to. Ironically, the

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Judith Butler, “Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory,” Theatre Journal 40, no.4 (1988): 519. Pateman describes the “traditional societal break down of men and women’s roles in which men dominate the public sphere of work outside the home, and women dominate the private sphere of running the household and child-rearing.” See Carole Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988), 21. Nimmi Gowrinathan, “Groups of Tamil Diaspora, Personal Interviews” (PhD Thesis, University of California, 2007), 34. Peter R. Beckman and Francine De Amico, eds., Women, Gender, and World Politics: Perspectives, Policies, and Prospects (Westport: Greenwood Publishing Group, 1994), 7. Radhika Coomaraswamy and Nimathi Perera Rajasingham, “Being Tamil in a Different Way: A Feminist Critique of the Tamil Nation,” in Pathways of Dissent: Tamil Nationalism in Sri Lanka, ed. R. Cheran (Delhi: Sage Publications, 2009), 12.

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patriarchal nation acknowledges and credits women with complete agency for being the embodiment of cultural pride. It is this perception that problematizes the later placement of women in the nationalist struggle, as it limits their role to being owners of mere bodies that physically and symbolically produce and reproduce this burden of representation over the generations. Consequently, the question of women’s emancipation did not get adequate space within the Tamil national movement, although many such movements have given women an opportunity to break away from the traditional roles assigned to them.36 The plausible argument put forth is that nationalists feel women should be the carriers of their culture, while the aim of feminists has been to break away from these traditional roles cut out for women.37 However, this does not mean that nationalism and feminism cannot coexist together. They find ways to accommodate each other in various ways. Neluka Silva opines that the absence of a female icon in the prominent religious discourse of a region is often balanced by modifying the existing icons through borrowing and reinventing constructs from other religions so as to suit the requirements of nationalists. The Sri Lankan effort of modifying Kali and Pattini images is an example of offsetting the absence of a female iconography in Bhuddhist religious discourse by incorporating the idea of goddesses from Hinduism.38 Despite nationalist agendas involving women and ignoring the woman question, it is important to note that, as Yuval- Davis asserts, loyalty to a national liberation movement does not necessarily mean that women do not fight within it for the improvement and transformation of the position of women in their societies.39 Partha Chatterjee points out how Bengal nationalism does not ignore the woman’s question but solves it “in complete accordance with its preferred goals.”40 Such a case is also visible within the LTTE organization, where nationalists feel that they have liberated the women to a certain degree and then use it to valorize their cause.41 The 1993 International Women’s Day message by Velupillai Prabhakaran reads: “The ideology of women’s liberation is a child born out of the womb of our liberation struggle.”42 And yet, scholars such as Cynthia Enloe and Malathi de Alwis have already remarked on the way in which “idealization of feminized sacrifice” becomes overstated during

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Chatterjee, “Nationalist Resolution of the Women’s Question,” 237–8. Ibid. Neluka Silva, The Gendered Nation: Contemporary Writings from South Asia (New Delhi: Sage Publications, 2004), 230. Nira Yuval-Davis, Gender and Nation (London: Sage Publications, 1997), 118. Chaterjee, “Nationalist Resolution of Women’s Question,” 237. Coomaraswamy and Perera-Rajasingham, “Being Tamil in a Different Way.” Ibid.

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instances of national predicament.43 On examining the motives for women to join the LTTE, it can be implied that the LTTE have used such rhetoric primarily to increase the mobilization of women into their cadres for tactical advantage.

the story of ltte female combatants Since the beginning of the Sri Lankan civil war in 1983, Tamil women have occupied a pivotal role in the conflict.44 The mobilization of women by the LTTE, and the subsequent emergence of the “female suicide bomber” glorified by the LTTE as “Birds of freedom,” is the most prominent illustration of participation of Tamil women in the war.45 However, the identity of the Tamil woman as an LTTE woman militant is troubled by numerous concerns and social dilemmas involving the defiance of traditional gender constructs. The LTTE upheld the notion of an “ideal Tamil woman,” which was evident in the infamous LTTE pamphlet that elaborated on the codes of expected behavior and the obligation of women to defend that identity.46 The idea of the “purity and chastity” of a Tamil woman was very significant, 43

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Malathi De Alwis, “Moral Mothers and Stalwart Sons: Reading Binaries in a Time of War,” in The Women and War Reader, ed. Lois Ann Lorentzen and Jennifer Turpin (New York: New York University Press, 1998), 254. Miranda Alison, “Cogs in the Wheel? Women in the Liberation Tigers of Tamil Eelam,” Civil War Journal 6, no. 4 (2003): 37. Active involvement of women as combatants was manifest in the LTTE from the 1980s. The participation of women as suicide bombers was an explicit feature of the LTTE, and these women combatants were referred to as “birds of freedom.” According to empirical data cited in the works of scholars like Maunaguru and Miranda Alison, these women started off doing supporting services such as “propaganda, recruitment, information collection, medical care and fundraising.” See Alison, “Cogs in the Wheel?” 37. The presence of an Indian peace-keeping mission in conflict-prone areas of Sri Lanka, along with the displacement of significant numbers of the Tamilian population, led to a reduction in the number of male soldiers, which contributed to the active participation of female cadres to balance for the shortage. According to Adele Balasingham, they were given adequate training to improve their military performance and to aid their knowledge on usage of weapons, equipping them to carry out the act of suicide bombing. Eventually, Vituthalai Pulikal Munani (Women’s Front of the Liberation Tigers) was established as a part of the LTTE in 1983, and they fought their first battle against the military of the Sri Lankan government in 1986. See Neloufer De Mel, Women and the Nation’s Narrative: Gender and Nationalism in Twentieth-Century Sri Lanka (Colombo: Rowman and Littlefield, 2001), 206. Under the training of male commanders, they conducted a suicide bombing mission on the Sri Lankan military, which was the first suicide bombing done by a female LTTE cadre, causing the death of hundreds of men in the Sri Lankan armed forces. See Alisa Stack-O’Connor, “Lions, Tigers, and Freedom Birds: How and Why the Liberation Tigers of Tamil Eelam Employs Women,” Terrorism and Political Violence 19, no. 2 (2007): 43. Peter Schalk, “Women Fighters of the Liberation Tigers of Tamililam: The Martial Feminism of Atel Palcinkam,” South Asia Research 14, no.2 (1994), 163.

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and accorded high place by the LTTE, who viewed these women militants as “armed virgins.” Within the LTTE, the “burden of representation” among the Tamil women was very evident from the code of conduct they had to abide by in accordance with the orders of male superiors. Still, the LTTE, a militant organization despite its firm adherence to traditional Tamil culture, formed a female cadre within it and espoused the image of a combatant Tamil woman. This warrants introspection as to the motives of the LTTE in recruiting Tamil women. The LTTE faced a shortage of men in 1980s and, hence, faced a strategic requirement of more combatants both on the front line and within the ranks.47 By mobilizing and recruiting women, the LTTE had a tactical advantage over the Government of Sri Lanka, as they could easily evade security. Women were largely permitted to go unchecked at Sri Lankan checkpoints, as touching women in public was regarded offensive according to Sinhalese culture.48 This advantage was realized when women suicide bombers often carried out bomb explosions with suicide vests tied to their waist, simulating pregnancy. Moreover, the presence of women in the LTTE gave them wider acceptability among the Tamil public as an inclusive organization that was more representative of Tamil concerns and nationalist sentiments than other separatist or political groups. National or ethnic identity often seems to compete with gender identity, especially when women are pressured to subordinate their feminism to a national liberation struggle or ethnic rights movement, as witnessed in the figure of the LTTE woman militant. The dichotomy between culture and biology (gender and sex) was initially constructed to deconstruct gender roles which have been seen as part of one’s inherent nature. As Nira Yuval-Davis points out, “the discourse on gender and that on nation tend to intersect and to be constructed by each other,” just as much as biology and culture are interdependent and cannot be taken as wholly separate entities.49 Julie Wheelwright argues that the constant struggle against the social constructions of a feminine identity does not render a corresponding understanding of the systemic subjugation that women undergo when they enlist in military institutions, as they associate themselves with “hierarchical and authoritative ideology of the day, embracing an extreme form of masculinity.”50 On the other hand, Coomaraswamy sees it as a “complete eradication of femininity,” and cautions

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Stack-O’Connor, “Lions, Tigers, and Freedom Birds,” 43. Ibid. Yuval-Davis, Gender and Nation, 4. Julie Wheelwright, Amazons and Military Maids: Women Who Dressed as Men in Pursuit of Life, Liberty and Happiness (London: Pandora Press, 1990), 11.

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against this, as women never have consciously strived for “the complete annihilation of the feminine identity, but only for its recognition and empowerment.”51 A demand for androgyny by women’s movements has meant that all personalities develop both their feminine and masculine sides, not for women to simply imitate men. In the same context, Nira Yuval-Davis opines that, apart from the government establishments and academia, women themselves participate in the production of nations – “biologically, culturally and symbolically,”52 and yet in all cultures women are less valued socially than men. Yuval-Davis quotes Simone de Beauvoir’s argument that “it is not in giving life but in risking life that man is raised above the animal: that is why superiority has been accorded in humanity not to the sex that brings forth but to that which kills.”53 In the Sri Lankan context, women combatants have also risked their lives, but after the war was over they have been treated the same way or much worse. Many women may have joined believing that they would be valued the same as men. The protracted armed conflict in Sri Lanka brought about the participation of Tamil women in political activism to varying degrees, the most prominent being their mobilization in the LTTE as female combatants. The struggle for Tamil Eelam radically transformed the sociocultural role54 of Tamil woman, as she surpassed the restriction to “private” space allocated to women in traditional Tamil society. The outcome of such a transformation was the “gendered reconstruction of womanhood,”55 in which Tamil women were free to move away from the contours of the domestic sphere during conflict times, and could often fight in the front lines along with male combatants. By subjecting Tamil society to the notion of “militarized feminity,”56 the participation of women in militancy brought about a change in gender roles by ushering in an image of women with arms and weapons fighting side by side with men. Against the background of hegemonic masculinity entrenched in patriarchal Tamil society, their role as armed militants was also condemned as opposing the ideal construct of womanhood. As in the case of the LTTE female militants who challenged the societal constrains imposed on them, it needs to be seen to what degree they have been accorded agency for such

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Coomaraswamy and Perera-Rajasingham, “Being Tamil in a Different Way.” Yuval-Davis, Gender and Nation, 2. Ibid. De Mel, Women and the Nation’s Narrative, 206. Joke Schrijvers, “Fighters, Victims and Survivors: Constructions of Ethnicity, Gender and Refugeeness among Tamils in Sri Lanka,” Journal of Refugee Studies 12, no.3 (1999): 308. Swati Prashar, “Feminist International Relations and Women Militants: Case Studies from Sri Lanka and Kashmir,” Cambridge Review of International Affairs 22, no 2 (2009): 247.

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transformations. According to Miranda Alison, even though it has propounded the rhetoric of women’s emancipation and a consequent change in the social status of women, the LTTE’s propaganda has often relegated women’s issues to the periphery when faced with the larger question of Tamil nationalism.57 The militant Tamil woman thus passed through confusing cycles of empowerment and disempowerment well before the materialization of transitional justice mechanisms. By being LTTE militants, these women enjoyed a particular degree of empowerment, referred to as “ambivalent empowerment” by Darini Senanayake,58 in comparison with the patriarchal Tamil society they come from. However, the end of the war and the consequent ending of their role as “female militants” do not just pose the challenge of the “unsolicited disempowerment” that they faced due to disarmament, but equally subject them to the dilemma of readjusting to the civilian life and the very same gender norms that they circumvented. This phase can be seen as “unsolicited disempowerment” for these women. In the Sri Lankan case, this is further complicated by the fact that the political goals of the militant movement that they were a part of largely remained unaccomplished, which in turn made many disillusioned with regards to their nationalist aspirations.59

transitional justice and former ltte women in sri lanka Transitional justice, rather than being preoccupied with the dichotomies of “militant” and “civilian” during the “pre-” and “post”-conflict times, instead should ensure the transition of gender relations from the patriarchal sociopolitical framework to a more liberating and agency-relevant situation. The rehabilitation and reintegration of ex-LTTE women should break away from being a mere disempowerment mechanism, which forces these women to readjust to a civilian

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Miranda Alison, “Uncovering the Girls in the Boys: Female Combatants of the Liberation Tigers of Tamil Eelam,” Nivedini: Journal of Gender Studies 10 (2003): 56. Darini Rajasingham-Senanayake, “Ambivalent Empowerment: The Tragedy of Tamil Women in the Conflict,” in Women, War and Peace in South Asia, ed. Rita Manchanda (New Delhi: Sage, 2001), 102–30. The Sri Lankan civil war ended in May 2009 when the Sri Lankan military defeated the LTTE forces and captured and killed Velupillai Prabhakaran, the leader and commander of the LTTE. According to the UN reports cited by the Guardian newspaper, more than 7,000 ethnic Tamilians were killed and 75,000 displaced when the conflict intensified over a span of five months from January 2009 to May 2009. Sri Lankan president Mahinda Rajapaksa declared the Sri Lankan military victory over the LTTE, emphasizing how Sri Lanka was “liberated from terrorism.” See www.theguardian.com/world/2009/may/18/tamil-tigers-killedsri-lanka.

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life that they find difficult to cope with. Deconstructing the agency of these militants is vital to acknowledging the “political existence” of LTTE female combatants. This challenges the biased engagement of conventional transitional justice mechanisms where assumptions of the victimization of women prevent a just and fair engagement with ex-female combatants. With reference to the deployment of women in the LTTE, implications of political violence raise contextually definite problems as well as general ones. Various propositions on gender and political violence also need to be analyzed as they similarly suggest that women are “peaceful” and their engagement with conflict is that of victimhood. The list includes assumptions to do with the practice of violence among female militants and how they are seen distinct from violence employed by men in conflicts. Hence, a brief discussion of “victimhood” and “agency” in the context of political violence is warranted. Such distinctions tend to rely on and further entrench gendered norms and hierarchies. Women who are engaged in war and violence – whether illegal or state sanctioned – subvert cultural and gendered expectations of female bodies and identities in contemporary settings of war. The crux of these aforementioned assumptions, on the other hand, is rooted in idealized notions of femininity and masculinity. Traditionally, women have been portrayed as helpless victims devoid of agency of their own and dependent on male protection. Women are by default assumed to be victims rather than perpetrators of violence, and this postulation operates within a gendered prism, whereby the actions and behaviors of women are explained and represented in essentialist terms of their sex and gender. This in turn depicts the relationship between women and violence as one characterized essentially by victimhood. This actuality deprives them of political and personal agency. Depriving women of a sense of agency by continually associating them with children and the elderly implies the notion that they are equally vulnerable and in need of protection. Thus, women and children are amalgamated into singular constructs of cohesive bodies of victimhood. However, when women resort to political violence rather than being restricted to monotonous representation of victimhood, they are still denied political agency by signifying them as reliant on the masculine might of the protector. The male warrior is allocated the role of protector and, questionably, the burden of responsibility for his passive and less able female comrades. According to Laura Ahern, agency refers to the “socio-culturally mediated capacity to act.”60 The constant hyphenation of women with victimhood 60

Laura Ahearn, “Language and Agency,” Annual Review of Anthropology 30 (2001): 109–37.

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implies that in event of being perpetrators of violence in a conflict women are still denied active agency. This is backed by the assumption that the performance of the very same act of violence is a passive reaction to a traumatic situation that they are exposed to. In this regard, the “process” versus “outcome”61 debate put forth by Nimmi Gowrinathan in How Women Rebel tries to explain the agency of militant women within the nationalist context in Sri Lanka. The “process” of every separatist struggle, including that of the LTTE, comprises the “recruitment practices, the overarching ideology and symbolism, and their lived experience of individual female fighters within the movement.”62 In the case of the LTTE, the “outcome” of recruitment strategies and commitments to gender equality was deplorable, as the end of the war saw the complete destruction of the movement and women’s status in it. However, other scholars suggest that certain observable modifications in women’s social placement were evident in the LTTE-controlled areas. The LTTE achieved this by prohibiting rape and other sexual forms of violence, prostitution, pornography, and domestic violence.63 These created constructive changes in the daily lives of women living under LTTE control and within the movement. The trouble was that these changes were largely regarded as temporary, and criticized as having been accomplished through the patriarchal “midwife”64 of women’s agency rather than by an autonomous women’s movement.65 Still, during the prevalence of LTTE, it can be argued that a semblance of positive “outcome” on the agency of women were visible with regards to the “process vs. outcome” debate. Lastly, the factors that led Tamil women to join the LTTE are vital in understanding the political agency of these women involved in the violent militant activities that they undertook as a part of LTTE operations. Most of the literature on LTTE women considers their mobilization under two broad categories: forced conscription and redress of their personal loss and trauma through militancy. This is a narrow approach to look at the participation of Tamil women in militancy. Mere mobilization, induction, and participation of women in the LTTE will not translate to an active agency for these women engaged in political violence. By examining the historical narrative of the mobilization of women in the light of works by Radhika Coomaraswamy and 61 62 63

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Gowrinathan, “Personal Interviews,” 150. Ibid. Stanley J. Tambiah, Leveling Crowds: Ethnonationalist Conflicts and Collective Violence in South Asia (California: University of California Press, 1996), 44. De Mel, Women and the Nation’s Narrative, 215. Zacharia Mampilly, Rebel Rulers: Insurgent Governance and Civilian Life During War (New York: Cornell University Press, 2011), 228.

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Miranda Alison, however, it can be postulated that a variety of different and intersecting reasons account for the enlisting of Tamil women in the LTTE. Nationalist sentiment, reprieve from suffering and oppression, desire for emancipation and empowerment, along with a patriotic fervor for martyrdom were causative factors for their voluntary participation. Specifically, Alison calls “nationalist fervor” a “meta-reason”66 for joining, while pointing out that there may also be other personal reasons at work. Scholars like Anuradha Chenoy further argue that the “LTTE transformed victims into militants and pain into militarism.”67 This outlook suggests that by carrying out politically violent actions, they merely transformed their earlier victimhood to acts of aggression and violence. It also contests the notion that women are politically “autonomous” subjects who are just as enthusiastic and competent to use ideologically driven political violence as their male equivalents. By examining why the LTTE decided to employ women and how it integrated women, as well as analyzing why Tamil women made decisions to take up arms, it can be seen that the decisions made by both the LTTE and Tamil women were their own rational choices, subjected to various situational circumstances. Thus, in reality, militarization of Tamil women is not restricted to a mere redress of their personal trauma/loss, or simply a matter of forced conscription. In the larger framework of feminist scholarship and academia, discussions of the mobilization of women in militia (whether forced conscription or voluntary enlistment) and their subsequent participation were mostly looked upon as extensions of patriarchal projects where women were subjected to the hierarchy of male leadership at every turn. For instance, Radhika Coomaraswamy argues that the LTTE women were viewed as “disempowered cogs”68 within the “masculine” militant structure. In their scholarship on LTTE women, Miranda Alison69 and Swati Parashar have also stated that the reality of these women lies between the two binaries of “agency and victimhood, liberation and subjugation, emancipation and oppression.”70 Alison in particular cautions against the frivolity of restricting all analysis to such binaries, as they are “unnecessary and unsophisticated analytical tools.”71

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Ibid. Anuradha M. Chenoy, Militarism and Women in South Asia (New Delhi: Kali for Women, 2002), 104. Radhika Coomaraswamy, “Tiger Women and the Question of Women’s Emancipation,” Pravada 4, no. 9 (1997): 10. Alison, ‘”Uncovering the Girls in the Boys.” Parashar, “Feminist International Relations and Women Militants,” 251. Alison, “Uncovering the Girls in the Boys.”

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Under such circumstances, Darini Rajasingham-Senanayake’s phrase “ambivalent empowerment”72 rightly captures the dilemma of their agency, where she postulates that the certainty regarding the mobilization and consequent participation of LTTE women is perhaps more intermediate than the binary of victimhood and agency can permit. Theoretically, this position is closer to what De Mel refers to as “agentive moments,”73 whereby owing to the “patriarchal containment”74 of the militia or political organisation, these women enjoy moments of agency in an interregnum where normalcy is suspended and there is a license to transform taboo and social contentions. From these postulations, it can be deduced that a return to normalcy after the conflict will bring back the status quo–caused social gender norms that perpetuate structural inequality and violence and push them back into the same space they fled from. In such an attempt, integrating the former LTTE women who were erstwhile spokespersons of Tamil nationalism75 becomes all the more difficult. So the Government of Sri Lanka’s attempt to implement a reconciliation based on the victor’s dictums will only hamper the psychological and social reconciliation of ex-LTTE women, which will lead to disarmament of weapons, but not the disarmament of their minds. Transitional justice in post-conflict societies like Sri Lanka engages with gender sensitivity by preoccupying with the concerns of female victims of sexual assault during the war. One could argue that such sensitivity is also based on a gender bias that favors woman on a framework grounded on “victimhood.” It can be suggested that as much as women as victims of war have been over analyzed, women as combatants perpetuating political violence are underdiscussed. Hence, such a biased approach to transitional justice needs to be reoriented in favor of a more nuanced method, which will mainstream the impact of shifting gender roles 72 73 74 75

Rajasingham-Senanayake, “Ambivalent Empowerment,” 112. De Mel, Women and the Nation’s Narrative, 205. Ibid. Tamil nationalism in Sri Lanka manifested as the desire to construct a separate nation for Tamils based on their ethnic identity. It assumed a secular nature, as it did not differentiate itself based on religious identity between Tamil Muslims and Tamil Hindus. The democratic structure inherited as a part of colonial legacy resulted in assertion of Sinhala majoritarianism in postcolonial Sri Lanka. The consolidation of cultural and linguistic differences along with primordial ethnic Tamil identity led to the emergence of Tamil nationalism as a response to Sinhalese majoritarian policies. This idea of Tamil nationalism was further appropriated by organizations like the LTTE as a cause to fight for the formation of “Tamil Eelam.” The violent measures and terror attacks used by the organization to achieve their means earned them the status of a terrorist organization. After the demand for a separate homeland was ended through their defeat in the Sri Lankan civil war in May 2009, this Tamil nationalism manifested as the desire for regional autonomy in Sri Lanka through democratic means.

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undertaken by women in the event of a conflict. Only this will help to critically engage and solve both the conceptual and practical difficulties posed by the reintegration of female combatants. Ironically, in many conflict scenarios, like those of Nepal, Sierra Leone, and Colombia, women have enjoyed comparative autonomy and freedom of choice even in their domestic sphere only in the absence of men. The participation of men in militancy and conflict prima facie broke apart the social institution of family and, consequently, made women financially responsible for the household, freeing them from the overpowering “hegemonic masculinity” of normal times. Transitional justice, in its effort to reinstate normalcy, could bring back the same patriarchal gender relations in the private sphere and further entrench the dichotomy of “public” and “private” space in the lives of these women. Overall, transitional justice mechanisms focus on the exploitation and mishandling of civil and political rights in the public realm. Concerns of transitional justice in the private sphere are predominantly occupied by sexual violence–related offences. The socioeconomic rights in the private sphere which are necessary for everyday subsistence are thus relegated to the sidelines by such overt emphasis on sexual violence. The end of war will push these daily issues of survival, such as means to livelihood, equal access to basic amenities, etc., into the forefront. In the case of Tamil women, the “ambivalent empowerment” that they realized as LTTE militants becomes obsolete specifically during their disarmament and demobilization. This sudden transition from militancy to civilian life being a difficult terrain, and an inclusive approach that specifically address the “cycle of relative empowerment and disempowerment” of these female combatants is called for. Unless transitional justice methodologies adopt a broad framework to solve these issues of “private sphere” reintegration of the ex-combatants, they will induce conditions for relapse of perpetration of violence in both private and public spheres.

conclusion Rebuilding any war-ravaged society is a difficult task, but it becomes a meaningful one only when it attempts to end the perpetuation of structural inequalities like regressive gender norms in the society it aims to rebuild. By acknowledging the political agency of these women, the Sri Lankan state can induce a confidence-building gesture which could progressively lead to the construction of various gender-sensitive measures in the long term. With enough political will from both the state and the society, the Tamil women militants’ “unsolicited disempowerment” following demobilization can be made an opportunity to initiate the “re-empowerment” of these ex-militia

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women, which, however, first and foremost demands a deconstruction of their identity as women militants. Swati Parashar asserts that the identity of a female militant is not a monolithic construct, it is a multidimensional concept which is heavily biased by the social background it belongs to, the cultural values that these women had to abide by, the political organizations and militia that mobilized them, and mostly their depictions in mainstream media and even fiction that feminize and defeminize them to suit their respective narratives. An inclusive and sustainable reconciliation process for the ex-LTTE militant women is dependent on deconstructing their identities. This warrants a more nuanced treatise on women militants and a shift away from the false dichotomies and superfluous hyphenations that cloud the discourse on their identities. Rather than relegating their motivations to the “private” sphere of family and household where they have endured trauma and victimhood, we need to engage with the “public” voices of these ex-combatants. It is for this reason that the Government of Sri Lanka should appoint a “Truth Commission,” as a venue for their meaningful participation that ensures that their voices and experiences are heard and acknowledged by the larger society. Transitional justice mechanisms should co-opt the discourse on militancy and political violence in order to uncover the voices of women “who nurture personal, political, religious and nationalist aspirations within militant movements.”76 Truth commissions that adopt a community-based participatory approach like that of the Ardoyne Commemoration Project (ACP) in Northern Ireland should be emulated in Sri Lanka too. The grassroots nature of such truth commissions will help to restore the dignity of victims and inculcate a feeling of trust in the post-conflict reconciliation approach, by giving equal access to all parties to express themselves. This will prevent the stigmatization of ex-female combatants; as such, a truth-telling process in the public sphere will help others to relate with, if not empathize with, the sociocultural context of their earlier motives. It might help to instill the understanding that LTTE women, despite being perpetrators of violence, have also been significantly affected by the trauma and uncertainties of a war. The reintegration of women ex-militants also necessitates an understanding of their struggle to find their space within the changed nationalist framework of postwar Sri Lanka. These women formerly endured a comparable struggle in negotiating their space and subsequent agency in the ethno-nationalist movement for Tamiil Eelam that they were a part of. Post-conflict they have to “re-negotiate” their space all over again within the patriarchal construct of 76

Parashar, “Feminist International Relations,” 253.

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nation, with an additional task of displaying their nationalistic and unwavering allegiance to the newly emerged Sri Lanka that they once fought against. Women participate in armed conflicts for a variety of reasons and in different ways, and an understanding of their politics and motivations can provide valuable insights. Regardless of how symbolically feminine, it was always a masculine nation77 of Tamil Eelam that these women politically struggled for in the past. Nationalism leads to the establishment of conventional gender norms in its attempt to defend a stagnant concept of cultural identity. In this attempt, it portrays women as “protectors of the inner and sovereign cultural space of the emerging nation.”78 Even the LTTE saw women as representatives of Tamil cultural values. By housing the same gendered construct of a nation, transitional justice for women combatants who were previously members of the militia that opposed the Sinhalese Sri Lankan nation will turn out to be a forced assimilation than reintegration and subsequent “re-empowerment.” A noninclusive reintegration in postwar Sri Lanka will result in the swamping of their renegotiated “public” space in the same structure of hegemonic masculine nation. The transitional justice process in Sri Lanka should prevent a reestablishment of the gender status quo from pre-conflict times. The changed gender roles performed by the LTTE women as combatants will find social acceptance only if there is a “cultural reconciliation,” where the structural change in gender norms is culturally accepted by the society. A bottom-up approach, rather than the usual top-down methodology of transitional justice, should be used where the experiences and grievances of these ex-combatants find wider acceptance and visibility. Their agency in political violence in times of conflict as militants can be transformed to active political participation by their engagement in truth commissions and peace negotiations. This will eventually enable them to participate in the political and civil structures of a multicultural and inclusive Sri Lanka, where they will not have to forfeit their Tamil nationalism to be Sri Lankan Tamil women. Even as the woman militant transcends the bounds of traditional female identity, she pays a price higher than death for such freedom. There is a loss located in significant ways within the domain of gender constructs and, in particular, forms of female sexuality and reproduction that are valued within it. It is through deconstructing the identities of women militants that an effective and inclusive solution to the gendered conflicts in these societies 77 78

De Mel, Women and the Nation’s Narrative, 212. Chatterjee, “The Nationalist Resolution of Women’s Question,” 241.

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could be mediated. This demands a more nuanced discourse on women militants and a shift away from binary representations of these women. In conclusion, this chapter asserts that the policies of the Sri Lankan state in the postwar period have been ones that set out to strengthen majoritarianism, on the one hand, while increasing levels of insecurity among the Tamil minority on the other. Given this context, Sri Lanka is further from reconciliation, especially with a successful ending manufactured to the country’s own “war on terror” and the state’s refusal to acknowledge war crimes or any wrongdoings. Sri Lankan democracy has had the political opportunity to adopt various corrective measures to address concerns such as Tamil representation in the political sphere; yet, it still has a long way to go unless it takes into account mechanisms to integrate female LTTE combatants.

references Ahearn, Laura. “Language and Agency.” Annual Review of Anthropology 30 (2001), 109–37. Armstrong, Jac. “Rethinking the Restorative–Retributive Dichotomy: Is Reconciliation Possible?” Contemporary Justice Review 17, no.3 (2014), 362–74. Alison, Miranda. “Uncovering the Girls in the Boys: Female Combatants of the Liberation Tigers of Tamil Eelam.” Nivedini: Journal of Gender Studies 10 (2003), 41–70. Barsalou, Judy and Victoria Baxter. “The Urge to Remember: The Role of Memorials in Social Reconstruction and Transitional Justice.” United States Institute of Peace, Stabilization and Reconstruction Series 5 (January 2007), 34–6. Bell, Christine. “Transitional Justice, Interdisciplinarity and the State of the ‘Field’ or ‘Non-Field.’” The International Journal of Transitional Justice 3 (2009), 5–27. Butler, Judith. “Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminists Theory.” Theatre Journal 40, no. 4 (1988), 519–31. Chatterjee, Partha. “The Nationalist Resolution of Women’s Question.” In Recasting Women: Essays in Colonial History, ed. Kumkum Sangari and Sudesh Vaid. New Delhi: Kali for Women, 1997. Chenoy, Anuradha M. Militarism and Women in South Asia. New Delhi: Kali for Women, 2002. Coomaraswamy, Radhika. “Tiger Women and the Question of Women’s Emancipation.” Pravada 4, no. 9 (1997), 8–10.

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Coomaraswamy, Radhika and Nimanthi Perera-Rajasingham. “Being Tamil in a Different Way. A Feminist Critique of The Tamil Nation.” Journal of the School of Language and Literature 8 (Autumn 2007), 71–96. Costa Pinto, Antonio. “Authoritarian Past and South European Democracies: An Introduction.” South European Society and Politics 15, no. 3 (September 2010), 339–58. D’Amico, Peter R. and Francine Beckman, eds. Women, Gender, and World Politics: Perspectives, Policies, and Prospects. Westport: Greenwood Publishing Group, 1994. De Mel, Neloufer. Women and the Nation’s Narrative: Gender and Nationalism in Twentieth-Century Sri Lanka. Colombo: Rowman and Littlefield, 2001. Editorial, “Elusive Reconiciliation, The Hindu, March 6, 2017, www .thehindu.com/opinion/editorial/elusive-reconciliation/article17413024.ece Godec, Samantha. “Between Rhetoric and Reality: Exploring the Impact of Military Humanitarian Intervention upon Sexual Violence – PostConflict Sex Trafficking in Kosovo.” International Review of the Red Cross 92, no. 877 (2010), 235–52. Gowing, Richard. “War by Other Means? An Analysis of the Contested Terrain of Transitional Justice under the ‘Victor’s Peace’ in Sri Lanka.” London School of Economics Working Paper 13, no.138 (January 2013), 1–39. Gowrinathan, Nimmi. “Groups of Tamil Diaspora, Personal Interviews.” PhD Thesis University of California, New Jersey and California, 2007. Hutchings, Kimberley. “Feminist Ethics and Political Violence.” International Politics 44, no. 101 (2007), 121–45. International Crisis Group. Sri Lanka’s North II: Rebuilding Under the Military, Asia Report. Colombo/Brussels: International Crisis Group, 2012. Lundy, Partricia and Mark McGovern. “Whose Justice? Rethinking Transitional Justice from the Bottom Up.” Journal of Law and Society 35, no. 2 (June 2008), 265–92. Mampilly, Zacharia. Rebel Rulers: Insurgent Governance and Civilian Life During War. New York: Cornell University Press, 2011. Mani, Rama. Beyond Retribution: Seeking Justice in the Shadow of War. Malden, MA: Polity Press, 2002. McEvoy, Kieran. “Beyond Legalism: Towards a Thicker Understanding of Transitional Justice.” Journal of Law and Society 34, no. 4 (November 2007), 411–40. Minow, Martha. “The Hope for Healing: What Can Truth Commissions Do?,” in Truth v. Justice: The Morality of Truth Commissions, ed. Robert I. Rotberg and Dennis Thompson, 235–60. Princeton: Princeton University Press, 2000. Nagy, Rosemary. “Transitional Justice as Global Project: Critical Reflections.” Third World Quarterly 29, no.2 (2008), 275–89.

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O’Donnell, Guillermo. “Transitions, Continuities and Paradoxes.” In Issues in Democratic Consolidation: The New South American Democracies in Comparative Perspective, ed. S. Mainwaring, G. O’Donnell and J. S Valenzuela. Notre Dame: University of Notre Dame Press, 1992. Orjuela, Kristine and Camilla Ho¨glund. “Friction and the Pursuit of Justice in Postwar.” Peacebuilding 1, no. 3 (2013), 300–16. Parashar, Swati. “Feminist International Relations and Women Militants: Case Studies from Sri Lanka and Kashmir.” Cambridge Review of International Affairs (2009), 235–56. Rambukwella, Harshana. “Reconciling What? History, Realism and the Problem of an Inclusive Sri Lankan Identity.” International Centre for Ethnic Studies, Research Paper no. 3 (2012), 1–21. Rouhana, Nadim. “Key Issues in Reconciliation: Challenging Traditional Assumptions.” In Intergroup Conflicts and Their Resolution: A Social Psychological Perspective, ed. Daniel Bar-Tal, 291–314. New York: Taylor & Francis Group, 2011. Schalk, Peter. “Women Fighters for the Liberation Tigers of Tamil Ilam. The Martial Feminism of Atel Palacinkam.” South Asia Research 14, no. 2 (1994), 163–83. Schrijvers, Joke. “Fighters, Victims and Survivors: Constructions of Ethnicity, Gender and Refugeeness among Tamils in Sri Lanka.” Journal of Refugee Studies 12, no. 3 (January 1999), 307–33. Senanayake, Darini Rajasingham. “Ambivalent Empowerment: The Tragedy of Tamil Women in Conflict.” In Women, War and Peace in South Asia. New Delhi: Sage Publications, 2001. Sjoberg, Laura, “Women Fighters and the Beautiful Soul Narrative.” International Review of the Red Cross 92, no.877 (2010), 53–68. Spencer, Jonathan. ed., Sri Lanka: History and the Roots of the Conflict. London: Routledge, 1990. Stack-O’Connor, Alisa. “Lions, Tigers, and Freedom Birds: How and Why the Liberation Tigers of Tamil Eelam Employs Women.” Terrorism and Political Violence 19, no. 2 (2007), 43–63. Tambiah, Stanley Jayaraja. Buddhism Betrayed?: Religion, Politics, and Violence in Sri Lanka. Chicago: The University of Chicago Press, 1992. Tambiah, Stanley Jayaraja. Crowds: Ethnonationalist Conflicts and Collective Violence in South Asia. California: California University Press, 1996. Thiranagama, Sharika. In My Mother’s House: Civil War in Sri Lanka. New Delhi: Zubaan, 2013. Yuval-Davis, Nira. Gender and Nation. London: Sage Publications, 1997.

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10 The Principle of Legal Certainty Impact Assessment of the Syrian Refugee Crisis on the Turkish Law on Foreigners and International Protection Lami Bertan Tokuzlu introduction Humanitarian actors who work with displaced persons have, in the event of a mass influx of refugees, a crucial role and responsibility in documenting and collecting relevant evidence for a transitional justice process.1 Moreover, an effective international protection system is vital for providing refugees the opportunity for a safe and dignified return to their countries of origin.2 On the other hand, conflict situations that cause mass influx of refugees not only shatter law and institutions in the refugees’ countries of origin, they also put enormous pressure on, and sometimes cripple, the international protection systems in the countries of asylum, especially when international responsibility-sharing mechanisms are unable to respond to the crisis effectively. The humanitarian and refugee crisis which appeared as a result of the 2011 Syrian civil war, and has been defined as “the biggest humanitarian and refugee crisis of our time” by Filippo Grandi, the United Nations High Commissioner for Refugees (UNHCR),3 created highly destructive conditions for countries across the region. In this respect, Turkey is a special test case to observe, as it is hosting 3,181,537 refugees, which easily puts this country at the top of the list of refugeehosting states in the world. Furthermore, it was caught in this mass influx of refugees while in the midst of a comprehensive reform process of its asylum and

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See Secretary General, “Guidance Note of the Secretary General: United Nations Approach to Transitional Justice,” United Nations, 2010, www.un.org/ruleoflaw/files/TJ_Guidance_Note_ March_2010FINAL.pdf. M. Bradley, “Displacement, Transitional Justice and Reconciliation: Assumptions, Challenges and Lessons,” Refugee Studies Centre, University of Oxford, 2012, 8. www.rsc.ox.ac.uk/files/ files-1/pb9-displacement-transitional-justice-reconciliation-2012.pdf See www.unhcr.org/syria-emergency.html [accessed November 4, 2017]

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migration law.4 Turkey is not only a target for asylum-seekers; it is also on one of the main routes, the so called Eastern Mediterranean Route, of asylum in the Euro-Mediterranean region.5 Therefore, this country’s response to refugee flows has a significant impact on the legal avenues for seeking asylum throughout the region. Before the new legislative framework was adopted, Human Rights Watch had labeled this effect as being “stuck in a revolving door.”6 In this respect, observing and analyzing the impact of mass refugee influx situations in Turkey is worthwhile, as it can reflect a pattern of problems that tend to repeat in other transit countries of the region.7 In light of these considerations, this chapter investigates the performance of the recent legislative reforms in Turkey from the viewpoint of the principle of legal certainty, which was among the major deficiencies of the old legal framework. Through this investigation, the chapter aims to understand how this principle would affect a potential transitional justice process in Syria. The Law no. 6458 on Foreigners and International Protection (LFIP), which serves as the fundamental law in relation to the status of foreigners, was enacted on April 4, 2013.8 The primary aim of the bill was to ensure compliance with European Union (EU) acquis on asylum and migration9 by amending two laws enacted in 1950, the Passport Law (Law no. 5682), and the Law on the Residence and Travels of Foreigners in Turkey (Law no. 5683), both of which were considerably removed from meeting contemporary standards on foreigners and international protection. In this context, the LFIP aimed at eliminating the problems resulting from practices having been

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See UNHCR figures for 2017 at http://data.unhcr.org/syrianrefugees/country.php?id=224 [accessed 03.10.2017] According to the European Border and Coast Guard Agency (FRONTEX), “Risk Analysis for 2016,” 49 percent of illegal crossings to the EU Member States took place through the Eastern Mediterranean Route in 2015. See report at http://frontex.europa.eu/assets/Publications/Risk_ Analysis/Annula_Risk_Analysis_2016.pdf Human Rights Watch, “Stuck in a Revolving Door Iraqis and Other Asylum Seekers and Migrants at the Greece/Turkey Entrance to the European Union,” 2008, www.hrw.org/sites/ default/files/reports/greeceturkey1108web_0.pdf L. B. Tokuzlu, Burden-sharing Games for Asylum Seekers between Turkey and the European Union, EUI Working Papers: RSCAS 2010/05 (Florence: European University Institute, 2010). Law no 6458 on Foreigners and International Protection; Official Gazette Date-No: 11.04.201328615. See the reports by the Commission for the Draft LFIP and Examination of Human Rights, Commission on Compliance with the European Union, and the Commission on Internal Affairs (1/619), Turkish Grand National Assembly, Legislative Period 24, Legislative Year 2, www .tbmm.gov.tr/develop/owa/tbmm_internet.anasayfa.

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developed through administrative acts without any transparency whatsoever, due to the lack of a fundamental law on international protection. Nearly three years have passed since all provisions of the LFIP entered into force, during which time a high number of administrative regulatory acts have been enacted, and judicial case-law has begun to take shape along with the escalating violence in the region. At this stage, conditions are now suitable for observing and assessing the broad strokes shaping existing practice. This study aims, in particular, to provide a critical assessment as to what degree of “legal certainty,” one of the goals of law, has been achieved. In this respect, the present chapter focuses on problematic aspects of the old system, and follows up on developments in these areas through various examples. The chapter is comprised of four main sections: Section “Dynamics of Change” evaluates the effect of EU Law and judgments of the European Court of Human Rights (ECtHR) on the process of preparing the LFIP. This section is followed by Section “The Legal Certainty Problem Created by the Repealed Legislation,” which gives examples to illustrate the problem of legal certainty created by the repealed legislation. Section “The Principle of Legal Certainty in Light of Judgments by the Turkish Constitutional Court (CCt)” sets forth the standards stipulated by Turkish constitutional jurisprudence with regards to the principle of legal certainty, with the aim of establishing the fundamental constitutional reference points. In the final section, the uncertainties created by the transitional regime of the LFIP are examined. Dynamics of the Change As already mentioned, the primary inspiration for the Turkish Law no. 6458 was the EU asylum and migration acquis. The EU revamped its relevant acquis from the ground up in line with the transitional regime set forth in the Amsterdam Treaty, which entered into force in 1999.10 Turkey has been influenced by the legal transformation in the EU from the very beginning. In fact, both the 2001 Accession Partnership Document,11 which established a road map for Turkey’s full membership in the EU, and the 2003 National Program for the Adoption of EU Acquis,12 which set out the Turkish 10

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Treaty of Amsterdam Amending the Treaty of the European Union, the Treaties Establishing the European Communities and Certain Related Acts, 1997, OJ C 340/1. 2001/235/EC Council Decision Dated 08.03.2001 Pertaining to the Principles, Priorities, Interim Goals and Conditions Set Forth in the Accession Partnership with the Republic of Turkey, March 24, 2001, OJ L 85/13. Turkey’s National Program for Compliance with the Acquis, Official Gazette Date-No: 24.07.2003-25178 reprinted.

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government’s projected undertakings, show that Turkey planned to carry out comprehensive legal reforms in line with the EU asylum and migration acquis by 2006. However, the reform could not be enacted in the short term as planned. In fact, the EU asylum and migration acquis, which serves as the fundamental point of inspiration for Turkey, has proven to be a moving target during the drafting process of the law. As a consequence, the reform process had to be revised multiple times. The rather ambitious undertakings with regard to laws on foreigners and asylum initially included in the 2003 National Program had to be revised by the Asylum and Migration Action Plan,13 adopted in 2005, to adjust to new mechanisms such as the safe third country and country of first asylum rules of the EU, which were conducive to increasing Turkey’s international protection responsibilities.14 Therefore, after 2005 Turkey adopted a more reluctant and conditional approach to reforming its asylum and migration laws. In this regard, both the 2005 Asylum and Migration Action Plan and the 2008 National Program for the Adoption of EU Acquis contain statements that any steps to be taken in this area have to be conditional upon support from the EU.15 While the EU has demonstrated an attitude that seems to support the steps taken by Turkey in the area of asylum and migration, this support was not enough to address Turkey’s hesitation in taking full legal steps until 2013. This is the reason for Turkey’s failure to make any significant strides in the area of foreigners and international protection, other than a few simple regulatory administrative acts,16 while at the same time engaging in intensive reforms in virtually every topic pertaining to fundamental rights and freedoms under the framework of compliance with the EU between 2005 and 2013. Ultimately, however, the hesitation created by the provisions of the EU asylum and migration acquis, which allowed responsibility of international protection to be passed to neighboring states, was balanced with the pressure created by ECtHR judgments to increase the standard of protection. In fact, the steps taken by Turkey with regard to its protection system coincided with the rulings of the ECtHR. The Turkish government increased its cooperation

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Turkey’s “Asylum and Migration National Action Plan” entered into force on 25.03.2005 with Prime Minister Recep Tayip Erdog˘an’s approval letter numbered B.05.1.EGM.0.13.03.02. Directive 2005/85/EC, [OJ L 326/13] 13.12.2005. See articles 26, 27 and 36. Turkish National Program for the Adoption of EU Acquis No 2008/14481 and Decision on the Implementation, Coordination and Monitoring of the Turkish National Program for the Adoption of European Union Acquis, Official Gazette Date-No: 31.12.2008-27097 Reprinted. For instance, the Interior Ministry General Directorate of Security Implementation Directive no. B.05.1.EGM.013.03.02/16147, 22.06.2006.

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with the Office of the UNHCR17 and began, with the use of a common database, to follow a policy of avoiding, whenever possible, the deportation of refugees and asylum-seekers registered with the UNHCR, after the Jabari ruling in 2000, in which the Court found a violation of the European Convention on Human Rights (ECHR) for disregarding the UNHCR’s risk assessment of in the country of origin.18 Not having created an effective risk assessment system, the Interior Ministry, which had been directing its deportation practices in line with the UNHCR’s preferences, was forced to review its existing practices once more in 2006 after the ECtHR’s ruling on D. and Others.19 In that case, the court found that the possibility of the Iranian applicants – whose application for asylum had been denied by the UNHCR on the basis of the Geneva Convention Relating to the Status of Refugees (1951 Geneva Convention)20 – being faced with the punishment of whipping in their country of origin constituted a degrading punishment under Article 3 of the ECHR. This judgment resulted in questioning a system of asylum based entirely on the UNHCR’s assessment criteria. Instead, a more active approach in international protection processes was introduced with the implementation of directive np. 57,21 sent by the Interior Ministry to the governorships of the eighty-one provinces in 2006. Similarly, the ECtHR ruling in the Mamatkulov and Askarov Case in 1999, where the court found that Article 34 of the ECHR had been violated22 due to deficiencies in the Turkish legal system regarding the extradition process, had a palpable effect on Article 18 of the 2004 Turkish Criminal Code concerning the extradition of criminals.23 Despite these developments, the effort shown by the Turkish government in the ten years following the Jabari decision with regard to the development of the international protection mechanism did not deliver more than a few simple administrative measures. The ECtHR ruling on September 2009 in the Abdolkhani and Karimnia case24 laid bare this continuing problem in

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A. I˙c¸duygu and D.B. Aksel, “Tu¨rkiye’de Du¨zensiz Go¨c¸,” IOM Turkey, 2012, www.turkey.iom .int/documents/IrregularMigration/irregular_migration_turkce.pdf Jabari v Turkey, ECtHR (Application no. 40035/98), July 11, 2000. D. and Others v Turkey, ECtHR (Application no. 24245/03), June 22, 2006. Law no 359 on the Ratification of the Convention Relating to the Status of Refugees, signed in Geneva, July 28, 1951, Official Gazette-Date-No: 05.10.1961-10898. See above, Implementation Directive no. 57 by the Interior Ministry General Directorate of Security. Mamatkulov and Askarov v Turkey, ECtHR (Application no. 46827/99 and 46951/99), February 6, 2003. With regard to this case also see, Mamatkulov and Askarov v Turkey, ECtHR Grand Chamber decision (Application no. 46827/99 and 46951/99), February 4, 2005. Turkish Criminal Code no. 5237, Official Gazette Date-No: 12.10.2004-25611, October 12, 2004. Abdolkhani and Karimnia v Turkey, ECtHR (Application no. 30471/08), September 22, 2009.

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Turkey’s legal infrastructure. While determining that Turkey had violated articles 3, 5, and 13 of the ECHR, the ECtHR emphasized that Turkey had no legal framework for protection procedures. This pilot judgment was followed over the following few years by approximately fifty rulings indicating that the ECHR had been violated, which in turn played a significant role in pushing the Turkish government to prepare the LFIP. Work on preparing the LFIP was commenced in 2009, the same year that the referred judgment was handed down. Once the LFIP entered into force in its entirety, in April 2014 the Abdolkhani and Karimnia ruling ceased to serve as a pilot judgment to the extent that the new legal framework on asylum successfully responded to the concerns of the ECtHR with regard to the old regime.25 It is notable, however, that the temporary protection status which is granted to asylum-seekers who flee in masses from indiscriminate violence in conflict zones such as Syria has been neglected in the new legal order. As will be assessed in more detail below, although the greater portion of refugees currently being hosted in Turkey have been granted this status, it is only regulated by one single article of the LFIP, Article 91, which delegates the whole regulatory responsibility to the executive organ. This must be the most concrete sign of the watering-down effect of the Syrian crisis on the drafting of the LFIP. The status in question, which is vital for collecting information about the human rights violations in Syria and securing safe return of refugees to their homeland after the violence ends, has been left to the discretion of the Turkish Council of Ministers. Unlike the detailed interview and fact-finding processes regulated under the LFIP for individual asylum-seekers, the Turkish international protection regime does not offer comparable rules and procedures for temporary protection status holders. Therefore, the deficiencies of the old asylum regime that were underlined by the ECtHR in the Abdolkhani and Karimnia ruling still exist as a valid argument for Syrian temporary protection status holders. As explained in the General Grounds of the LFIP, practices shaped without transparency as a result of deficiencies in the old legislation were among the foremost factors leading to the preparation of the new law. The deficiencies allowed the administration so much leeway to exercise its discretion that it could be considered arbitrary. Practices pertaining to international protection were largely based on the 1951 Geneva Convention and the 1967 Protocol Relating to the Legal Status of Refugees,26 which do not contain any provisions either on the attainment of refugee status or on rules pertaining to the

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For an analysis of the effect of ECtHR decisions on the LFIP, see N. Eks¸i, Yabancılar ve Uluslararası Koruma Kanunu (Tasarısı) (Istanbul: Beta, 2012): 86–113. Official Gazette Date-No: 05.08.1968-12968, August 5, 1968.

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exercise of the rights inherent in such statutes. While EU member states have considerably detailed rules of procedure on this matter,27 the legislature has left a void in this area of Turkish law. Consequently, international protection has been managed through inaccessible administrative regulatory acts for a long time.28 For instance, the Turkish Council of State was only able to have access to a copy of the Implementation Directive no. 57, on procedures and principles for refugees, after handing down two decisions to serve as a reminder.29 Moreover, the safe third country rule was utilized as a grounds for denying requests for asylum without any legal basis, and such measures were subsequently upheld by the administrative courts.30 While the use of this concept was inspired by the EU acquis, countries without a good record of human rights, such as Turkmenistan31 and Iran,32 were designated safe third countries because Turkish law had no criteria for the use of this concept other than perhaps political choices. The dual asylum procedure developed by the Turkish government and the UNHCR further contributed to the problem of transparency. As a matter of fact, the protection procedure developed following the Jabari ruling was largely administered on the basis of the UNHCR’s refugee status determination (RSD) assessments, even though asylum-seekers were required to apply to both the UNHCR and the governorships.33 During this period, administrative courts upheld the administration’s reliance on risk assessments made by the UNHCR in the asylum procedure.34 However, the RSD procedure carried out by the UNHCR was confidential, and it was simply not possible for all case files to be shared with the Turkish government.35 The government’s responsibility for assessing risk was therefore de facto passed on to the 27 28

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For instance, see 2013/32/EU Directive dated June 26, 2013 [OJ L 180], 60–95. The primary by-law on this matter was the “By-Law Regarding the Rules and Principles Applicable to Individual Foreigners who Seek Asylum in Turkey or Request a Residence Permit from Turkey for the Purpose of Seeking Asylum in Another Country and to Foreigners Who Arrive At Our Borders to Seek Asylum as a Group and to Possible Population Movements” (1994 by-law). Official Gazette Date-No: 30.11.1994-22127, November30, 1994. 10th Chamber of the Council of State, 2009/8048 E., December 7, 2009. Ankara 4th Administrative Court, 2003/101 E., 2003/1393 K., October 21, 2003. Amnesty International, Amnesty International Report 2015/16 – Turkmenistan, February 24, 2016, www.refworld.org/docid/56d05b0715.html Human Rights Watch, UN: Keep Human Rights Spotlight on Iran, March 17, 2016, www .refworld.org/docid/56eac91b4.html See 1994 by-law. See 10th Chamber of the Council of State, 2009/645 E., February 27, 2009; Ankara 7th Administrative Court, 2008/2160 E. 2009/1141 K., September 18, 2009. Ankara 12th Administrative Court, 2009/789 E.19.11.2009, November 19, 2009. See UNHCR, “Procedural Standards for RSD Under UNHCR’s Mandate,” para. 2.1, United Nations High Commissioner for Refugees, originally published 2003, accessed July 20, 2018, www.unhcr.org/4317223c9.pdf

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UNHCR, thereby separating the decision-making authority from the accountable administrative authority. There was no assessment on the merits of any asylum case brought before the Turkish courts during this period. As a matter of fact, the government’s decisions to deport were based on UNHCR assessments alone. The best example illustrating this situation is the D and Others case heard by the ECtHR. In this case, the applicants complained that the national agencies had failed to conduct their own assessment independently of the UNHCR before denying their request for asylum, and that their claims were not heard on their merits upon their application to the Council of State.36 The problem of a legal framework that left a wide scope for administrative discretion was present also with regard to the general regulatory framework pertaining to migration law. For instance, Article 19 of Law no. 5683 on the Residence and Travels of Foreigners in Turkey,37 which regulated the circumstances in which foreigners were asked to leave or were deported from Turkey, allowed for a formula that made it possible for foreigners to be deported if their presence was “deemed contrary to general safety, political and administrative necessities.”38 Whether it was possible to establish a positive legal norm from this formula, the limits of which were rather ambiguous, has been a matter of debate in the legal literature. Lu¨tfi Duran argued that if the concept of “public safety” in the law was interpreted so as to be limited by preventive security powers as defined in Turkish judicial decisions, then it could be assessed as a legal norm, while otherwise the concept of “political and administrative necessities” would be hollowed out. Duran then suggests that the latter term, the limits of which were rather ambiguous, should be understood as public interest and the necessities of public service.39 As opposed to this view, Rona Aybay argues that the term “political and administrative necessities” should be perceived as being limited to the concept of public order as is common in contemporary legal systems, thereby attributing the function of a generic concept to this term.40 The administration, however, exercised the broad discretionary powers granted to it under the ambiguous legal framework without such requisite sensitivity. For instance, in a case filed for the cancellation of a decision to deport on the grounds that a marriage was one of convenience, the Istanbul Ninth Administrative Court found the decision to be unlawful, since the decision had been made to deport a married person based on opinion, without conducting any research or providing any concrete evidence, and 36 37

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See D. and Others v Turkey. Law no. 5683 on the Residence and Travels of Foreigners in Turkey, Official Gazette Date-No: 24.07.1950-7564, July 24, 1950. See article 19 of Law no. 5683. L. Duran, “Yabancıların Tu¨rkiye’den Sınırdıs¸ı Edilmesi,” I˙nsan Hakları Yıllıg˘ı 2 (1980): 3–33. R. Aybay, “Bir I˙nsan Hakkı Sorunu Olarak Sınırdıs¸ı Edilme,” Maltepe University Law School Journal 2 (2003): 141–72.

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by expanding the circumstances listed in Article 19.41 The same perspective was also observable in the administration’s interpretation of the concept of “general safety” for the purpose of restricting fundamental rights. For instance, when the decision to deport a foreign university student who had been acquitted after being tried for the possession and use of drugs was deemed unlawful,42 the administration appealed to the Council of State, which then upheld the ruling.43 Despite this and similar rulings by the administrative courts,44 the administration insisted on interpreting the concept of “political and administrative necessities” broadly.

Similar to the ambiguous provisions of Law no. 5683 regulating the deportation process, the Passport Law, no. 5682,45 also contained provisions that granted considerably broad powers of discretion to the administration with regard to foreigners’ entrance into Turkey. The provision in Article 8(5) banning entry into the country “of those who give the sense that they wish to enter the country with the intent to disrupt the security and public order of the Republic of Turkey or with the aim of participating in or aiding those intending to do so” was of particular note. Another contested matter was Article 23 of Law no. 5683, which provided that those who were subject to a deportation decision but were unable to leave Turkey because they could not obtain a passport or due to other reasons would be required to reside at a location specified by the Interior Ministry. In practice, the term “required to reside” was interpreted by the administration to allow the detention of foreigners, and such acts were not deemed unlawful by the administrative courts.46 Beyond the issue of conceptual ambiguity, the fact that the provision, which did not include any mechanisms for remanding into custody and detention, the duration thereof, access to legal counsel, benefit of judicial assistance, or means to object to and file a lawsuit against such detention, was used as the basis for detaining foreigners created a significant deficiency in protection.47 The uncertainties created by the

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45 46 47

Istanbul 9th Administrative Court, 2007/784 E., 2008/569 K., 26 March 2008. See Istanbul 4th Administrative Court for another similar ruling; 2009/1980 E., 2010/1776 K., September 29, 2010. Ankara 9th Administrative Court, 2001/863 E., September 19, 2001. 10th Chamber of the Council of State, 2003/618 E., 2006/5701 K., October 16, 2006. For example, see 10th Chamber of the Council of State, 2003/111 E., 2006/6142 K., October 30, 2006. Passport Law no. 5682, Official Gazette Date-No: 15.07.1950- 7564, July 15, 1950. See Ankara 10th Administrative Court, 2009/2246 E., 2010/391 K. March 16, 2010. N. Eks¸i, “I˙nsan Hakları Avrupa Mahkemesinin ‘Abdolkhani ve Karimnia/Tu¨rkiye’ Davasında Verdig˘i 22 Eylu¨l 2009 Tarihli Kararın Deg˘erlendirilmesi,” in I˙ltica, Uluslararası Go¨c¸ ve ¨. C ¨ zc¸u¨ru¨mez, and S¸ Tu¨rkay Vatansızlık: Kuram, Go¨zlem ve Politika, ed. O ¸ elebi, S. O (Ankara: UNHCR, 2011).

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implementation of the referred provision were assessed by the ECtHR in the Abdolkhani and Karimnia case, and resulted in a ruling that these practices constituted a fundamental breach of Article 5 of the ECHR.48 This pilot judgment was subsequently followed by many judgments ruling that a violation had occurred.49

the principle of legal certainty in light of judgments of the turkish cct Once the mechanism of individual complaints to the CCt was introduced to the Turkish legal system in 2010,50 the court began to increase its presence in handing down judgments on asylum and migration. The CCt’s approach to the principle of legal certainty is a point of reference for this study, considered within the framework of both the rule of law and respect for human rights principles under Article 2 of the Turkish Constitution. According to the CCt’s established case law, ambiguity in legal rules is unacceptable because it would undermine legal certainty. Parallel to the ECtHR judgments, in its case law on respect for fundamental rights, the CCt tied the principle of legal certainty to the condition of laws being accessible, foreseeable, and clear.51 Accordingly, in instances where the administration is granted the power to interfere with a fundamental right, the framework and limits of such power must be defined, and a legal framework of sufficient detail to protect the individual against arbitrary intervention must have been established by law. In circumstances where the law does not 48 49

50

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Abdolkhani and Karimnia v Turkey, ECtHR (Application no: 30471/08), February 22, 2009. Aliev v Turkey, ECtHR (Application no: 30518/11), October 21, 2014; Musaev v Turkey, ECtHR (Application no: 72754/11), October 21, 2014; S.A. v Turkey, ECtHR (Application no: 74535/10), December 15, 2015; T. and A. v Turkey, ECtHR (Application no: 47146/11), October 21, 2014; Charahili v Turkey, ECtHR (Application no. 36370/08, April 13, 2010; Keshmiri v Turkey, ECtHR (Application no. 36370/08), April 13, 2010 ; M.B. and Others v Turkey, ECtHR (Application no. 36009/08), June 15, 2010; Ranjbar and Others v Turkey, ECtHR (Application no. 37040/07), April 13,2010; Tehrani and Others v Turkey, ECtHR (Application no. 32940/08, 41626/08, 43616/ 08), April 13, 2010; Z.N.S. v Turkey, ECtHR (Application no. 21896/08), January 19, 2010; Ahmadpour v Turkey, ECtHR (Application no. 12717/08), June 15, 2010; Alipour and Hosseinzadgan v Turkey, ECtHR (Application no. 6909/08, 12792/08 and 28960/08) July 13,2010; D.B. v Turkey, ECtHR (Application no. 33526/08), July 13, 2010. Also see A. Yılmaz, “Tu¨rkiye’de Yabancıların Sınırdıs¸ı Edilmesi: Uygulama ve Yargısal Denetim,” In Sınır ve Sınırdıs¸ı: Tu¨rkiye’de Yabancılar, Go¨c¸ ve Devlete Disiplinlerarası Bakıs¸lar, ed. D. Danıs¸, and I˙. Soysu¨ren (Ankara, Notabene Yayınları, 2014), 207–46. Law no 5982 on Amendments to Certain Articles of the Constitution of the Republic of Turkey, Official Gazette Date-No: 13.05.2010-27580, May 13, 2010. For instance, see CCt (Application no: 2013/6154), J.D.: 11.12.2014, Official Gazette Date-No: 12.05.2015-29353. May 12, 2015.

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contain sufficiently tangible provisions to establish a positive legal norm, it is also not possible to assess whether the restriction is temperate, and the judicial organs must act in a highly sensitive and consistent manner in order to effectively protect fundamental rights. When the limitation of a fundamental right is based on reasons of general safety or public order, the risk of disrupting safety or public order must not rely solely on suspicion; in other words, more concrete evidence is necessary.52 Finally, it should be noted that the Turkish judiciary has adopted an approach that aims to prohibit the administration from directly regulating the fundamental rights provided under the Constitution without the enactment of any legislation. For instance, in a judgment handed down in 2010, the Council of State concluded that alternative methods to judicial power and any regulatory framework pertaining thereto could, under the principle of the rule of law, only be brought forth by law, and any determination thereof through directives was unlawful.53 In the light of the above considerations, the question that should be asked is whether the LFIP and the administrative regulatory acts conducted under it sufficiently address the problem of legal certainty created by the previous legal framework.

the principle of legal certainty in regulating international protection and status of migrants under the lfip The most important condition of the principle of legal certainty in a regime restricting fundamental rights is the implementation of a system, the general principles of which have been drawn up in the law, through accessible and detailed administrative regulatory acts. Under EU Law, international protection and migration is regulated by extensively detailed provisions. The LFIP also includes provisions that require the enactment of by-laws for the subject matter of many specific clauses.54 Moreover, Article 121 of the Law also includes a general provision that the rules and principles for the implementation of this law shall be adopted through by-laws. The aim is to bring forth the accessible, foreseeable, and clear legislation that is underlined in the CCt and ECtHR rulings on the principle of legality. Anticipating that the by-laws on implementing the law might not be enacted within a short period of time, 52

53 54

For an ECtHR judgment in this vein, see Kimlya and Others v. Russia, ECtHR (Application no. 76836/01 and 32782/0), October 01, 2009. For another judgment of the Court in the same vein, see Sidiropoulos and Others v Greece, ECtHR (Application no. 57/1997/841/1047), July 10, 1998. 8th Chamber of the Council of State, 2008/10118 E., 2010/2924 K., May 26, 2010. See articles 6, 11, 29, 45, 50, 58, 68, 91, 95, 98, 100, 113, 117, 119 of the LFIP.

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Provisional Article 1 provided that those provisions of the then-existing legislation that were not contrary to the LFIP would continue to be implemented until such by-laws could be enacted. Although the provisions of the law entered into force in stages, the enactment of the implementation by-laws was indeed delayed. For instance, the By-law Regarding the Implementation of the LFIP (LFIP Implementation By-law), which is the primary implementation by-law, entered into force on March 17, 2016,55 nearly two years after the provisions of the law itself entered into force. On the other hand, unlike the substantive by-laws, those pertaining to organization were prioritized. As a matter of fact, these entered into force without too much delay.56 During the period between the LFIP (2014) and the LFIP Implementation By-law (2016) entering into force, the Directorate General of Migration Management (DGMM) chose to shape the implementation with inaccessible directives it sent to the governorships.57 As a result, during this transitional period implementation was shaped by clandestine directives, in a similar fashion to the circumstances existing prior to the new law. Consequently, in the absence of accessible administrative regulatory acts, administrative courts passed judgments by referencing a legislation that was no longer in force. For instance, in its ruling of December 30, 2015, the Ankara First Administrative Court applied Article 8 of the repealed Law no. 5682 to the application filed by a Russian applicant for the lifting of his/her travel ban.58 The delay in adoption of the implementation by-law caused forced interpretations in judicial decisions. For instance, provisions of the Temporary Protection By-Law were applied to foreigners who did not fall under the definition of temporary protection. In this regard, the CCt’s ruling in response to the M.S.S. application was notable, as the court relied on Article 6 of the Temporary Protection By-law governing the nonrefoulment principle with regard to the deportation of a UK citizen of Pakistani origin. Yet according to Provisional Article 1 of that same by-law, in order to consider a foreigner within the scope of this by-law, she/he should be a Syrian national, refugee, or stateless person who arrived at or crossed Turkish borders from the Republic of Syria with the aim of seeking temporary protection from events occurring in the Republic of Syria.59 55

56 57

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By-law Regarding the Implementation of the Law on Foreigners and International Protection, Official Gazette Date-No:17.03.2016-29656, March 17, 2016. See www.goc.gov.tr/icerik/ulusal-mevzuat_327_333, accessed July 20, 2018. For instance, see the Interior Ministry DGMM directive “Work and Actions Relating to Foreigners in Implementing the Law no 6458,” no. 98811785-010-1/2092, April 10, 2014. Ankara 1st Administrative Court, 2015/410 E., 2015/3175 K., December 31, 2015. CCt (Application no. 2014/19690), December 31, 2014.

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The fact that the void created by the delay in the implementation by-law was filled with ad hoc directives creates doubt in terms of the legality of these administrative regulatory acts. According to Law no. 3011, acts with regard to these kinds of situations should as a rule be published in the Official Gazette.60 On the other hand, the provision in the law that by-laws pertaining to national safety and security are of a confidential nature and will not be published is being interpreted by the Turkish judiciary so as to grant broad discretionary powers to the administration on the law on foreigners.61 As the principle of legal certainty is also applicable to foreigners, it is unacceptable for virtually every issue pertaining to the fundamental rights of foreigners to be included in this exception clause, thereby becoming subject to discretionary administrative regulatory acts. Finally, certain lacunae in the provisions of the LFIP concerning the transition regime have also led to problems in legal certainty. One striking example was the uncertainty that arose with regard to the method for applying for a residence permit. Under the former law, applications for residence permits were made after the foreigner arrived in Turkey upon obtaining a visa or making use of a visa exemption, and the applicant would then be subjected to an interview. On the other hand, according to Article 21 of the LFIP, an application for a residence permit should be filed with the consulate in the country of the foreigner’s citizenship, or in which such foreigner is legally resident. The law permits applications for a residence permit from within Turkey only under certain exceptional circumstances.62 As a result, some hesitancy arose as to the status of foreigners who had traveled to Turkey in order to obtain residence permits immediately prior to the new law entering into force. In accordance with Article 2.3 of the DGMM Directive dated April 10, 2014, this situation fell within the scope of circumstances where it was not reasonable or possible for the foreigner to leave Turkey. Yet another area of uncertainty was that, while, according to Article 10 of the old Law no. 5683, foreigners who wished to renew or extend the term of their residence permits in Turkey could obtain new permits or extend the term for their existing permits by applying to the competent authorities within fifteen days of the expiration date set forth on their permits, no such time period was specified in the LFIP. Those who relied on the grace period indicated on their permits and exceeded the date specified on their permits by default became

60

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Law no 3011 on By-laws to be Published in the Official Gazette, Official Gazette Date-No: 01.06.1984-18418, June 1, 1984. For instance, see 10th Chamber of the Council of State, 2009/9270 E., December 22, 2009. See LFIP, Article 22.

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unlawful residents according to the new law. These ambiguities had serious repercussions for people who lacked Turkish citizenship and yet did not have the means to leave the country either, including large numbers of forced migrants residing in Turkey at the time.

contribution of the lfip’s provisions on statuses to the principle of legal certainty in the turkish asylum and migration system In this section, the contribution of select provisions of the LFIP on statutes to the Turkish system in terms of legal certainty will be evaluated. In this context, it is necessary to discuss separately the various forms of international protection and migrant status available in Turkish law, each possessing different characteristics. While not changing the general character of the old system with regards to international protection, in order to fill in the void underlined in the ECtHR decisions the LFIP created new categories of status, largely inspired by the EU’s international protection acquis. Accordingly, a new legal regime was designed with the aim of continuing the dual procedure established under the framework of the geographic limitation implemented by Turkey in accordance with the 1951 Geneva Convention. However, diverging from the previous system, the concept of “European nations,” which determines the scope of the geographic limitation, was redefined in Article 3 of the Law so that the nations that are members of the Council of Europe were now identified as the minimum limit for the geographic limitation. In addition, the Council of Ministers was granted the authority to add other states outside the Council of Europe within the scope of protection. Protection statuses under the LFIP were divided into two groups. According to Article 3(r) of the Law, international protection status encompasses the statuses of refugee, conditional refugee, and subsidiary protection. These three protection statuses are defined in Articles 61, 62, and 63 of Part 1 of Chapter 3, titled “International Protection.” On the other hand, the status of temporary protection, which in essence is similar to the abovementioned statuses in terms of the benefits of protection, is regulated under Article 91 of Part 4 of Chapter 3. This structure creates some uncertainty with regard to both the definition of the statuses and the rights granted to each of the statuses. Using the systematic interpretation technique, the fact that all of the referred statuses are regulated under Chapter 3, titled “International Protection,” leads to the impression that all of them fall under international protection status. On the other hand, the text of the law limits international protection status only

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to the categories of refugee, conditional refugee, and subsidiary protection. As a result, there is a contradiction between the system and text of the law. This contradiction leads to significant legal consequences, as a result of many rights regulated under the law being tied to having an international protection status. For instance, the concept of “special needs” only provides security for foreigners with international protection status. Furthermore, because Article 65 of the LFIP, which prohibits penalization of those seeking protection for having illegally entered Turkey, refers only to those who have applied for international protection status, those with temporary protection status, who fall outside of such scope, will not be able to benefit from this immunity. On the other hand, Article 5 of the Temporary Protection By-Law repeats the same grounds for immunity and, in a violation of the hierarchy of norms, expands the scope of the penalty exemption specified in the law. Finally, the legal status of those under temporary protection with regard to administrative detention is also uncertain due to the same statutory confusion. As a matter of fact, since there is a preliminary assumption that persons with this status are under risk in the countries of their nationality, they should not be held in detention for deportation as per Article 57 of the LFIP. On the other hand, those who have been granted temporary protection status cannot be placed in detention as per Article 68 if they are considered to fall outside the scope of international protection status. Consequently, the ECtHR’s ruling that Article 5 had been violated because there is no legal basis in Turkish law for the practice of subjecting foreigners to administrative detention is still applicable to those who have been granted temporary protection status. Leaving the determination of a protection status directly to the administration without establishing a legal framework conflicts with the CCt’s case law on the principle of legal certainty. Another attribute of the new legislation that negatively affects the legal certainty underlying protection status is that, unlike the EU Acquis, the protection statuses have not been defined in detail. Under the EU acquis, every element of concepts such as refugee, subsidiary protection, and temporary protection is defined.63 As opposed to this, neither the LFIP nor the LFIP Implementation By-Law includes comparable detailed definitions. For instance, Article 6 of the Qualification Directive (2011/95/EU) includes the fear of persecution or serious harm from nonstate actors within the scope of its protection. This issue was a hotly debated topic in refugee law in the last two 63

Directive 2011/95/EU, [OJ L 337/9], December 20, 2011. Directive 2004/83/EC, [OJ L 304/12], September 30, 2004. Directive 2001/55/EC, [OJ L 212/12], August 7, 2001.

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decades.64 As it is not clearly regulated in Turkish legislation, there is a risk of differing interpretations coming to the fore in practice. A similar foreseeability problem exists for gender-based applications. In defining acts leading to persecution, Article 9 of the EU Qualification Directive also lists gender-specific actions. Furthermore, Article 10 of the directive states that in defining “membership of a particular social group,” which is one of the elements of the definition of a refugee, gender-specific common characteristics should also be taken into account as one of the factors determining the status of a group. In contrast, the LFIP neglects the legal basis for gender-based applications in the definitions it gives within the scope of international protection. Similarly, the LFIP Implementation By-Law lacks any provisions that clearly place gender-based applications under protection. This deficiency has been partially addressed as a result of Turkey becoming a party to the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence in 2014.65Article 60 of this Convention introduced the obligation to interpret the refugee definition in the 1951 Geneva Convention in a gender-sensitive manner. Yet another critical dimension of the new legal framework on protection status in terms of foreseeability is concerned with the definition of subsidiary protection. The subsidiary protection status regulated under Article 63 of the LFIP has been adapted into Turkish law from the EU Qualification Directive.66 A foreigner who has proven that she/he will face serious harm to her/his person if she/he is sent back to her/his country will be granted subsidiary protection status if she/he does not qualify as a refugee or conditional refugee. One of the circumstances requiring protection as per the article is the foreigner being faced with “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”67 There is a conflict between the terms “indiscriminate violence” and “serious threat to a civilian’s person,” since “indiscriminate violence” refers to violence that has not been directed specifically at a person. In Meki Elgafaji and Noor Elgafaji v Staatssecretaris van Justitie, the European Court of Justice (ECJ) ruled that when evaluating the existence of 64

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D. Wilsher, “Non-State Actors and the Definition of a Refugee in the United Kingdom: Protection, Accountability or Culpability?” International Journal of Refugee Law 15, no. 1 (2003): 68–112; R. Colville, “Persecution Complex,” UNHCR: Refugees Magazine 101 (1995), www.unhcr.org/3b543f784.html. Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, Council of Ministers Decision no 2012/2816, Official Gazette Date-No: 08.03.2012- 28227 (Reprinted), March 8, 2012. See Qualification Directive, Article 15(c). See LFIP, Article 63(c).

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serious harm, foreigners hoping to escape indiscriminate violence prevailing at their location would not also be required to prove individual risk, thereby eliminating uncertainty through judicial interpretation.68 As stated in the CCt Murat C ¸ evik judgment mentioned earlier, certainty in case law is a factor that must be taken into account with regards to the foreseeability of law. In circumstances where varying interpretations of the text of a law are possible, consistency in judicial case law can eliminate potential problems as to the foreseeability of law. The ECJ’s decision on the definition of subsidiary protection status mentioned above is a noteworthy example of this function of the judiciary. In contrast, the Turkish executive’s approach to foreigners escaping from an environment of indiscriminate violence has not been as positive as that of the EU. Provisional Article 1 of the Temporary Protection By-Law states that individual international protection applications shall not be processed during the time that the temporary protection status applies to the foreigners from the Syrian Arab Republic who have temporarily taken refuge in Turkey.69 However, as there is no limitation in the LFIP for applications for international protection status, it is not possible to remove a right granted by law and international convention with a regulatory provision. Article 3 of the EU Temporary Protection Directive (2001/55/EC) also states that a temporary protection status will not prevent an application for refugee status. Within this context, it should be noted that ECtHR case law itself is undergoing a transformation in terms of asylum-seekers who are fleeing an environment of indiscriminate violence. In the case of L.M. and Others v Russia, filed by asylum-seekers fleeing the indiscriminate violence in Syria, on November 15, 2015, the Court’s ruling diverged from its previous case law, where the focus had lain on the personalization of harm in the evaluation of “serious harm.”70 An examination of Turkish judicial rulings on this matter, on the other hand, does not reveal any consistent practice. The issue was brought before the CCt with K.A.’s application,71 where the CCt was unconcerned with the fact that the international protection application filed by the Syrian applicant had been denied on the grounds of Provisional Article 1 of the Temporary Protection ByLaw. In a more recent ruling rendered for the cancellation of the DGMM action rejecting a Syrian plaintiff’s application for international protection, the Ankara Firsr Administrative Court found that the rejection of the application for international protection, without fulfilling the duty to gather state of 68 69 70

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ECJ, Grand Chamber, C-465/07, February 17, 2009. See the Temporary Protection Directive, Provisional Article 1. L.M. and Others v Russia, ECtHR (Application no. 40081/14, 40088/14 and 40127/14), October 15, 2015. CCt (Application no. 2014/13044), November 11, 2015.

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origin information as per Article 93 of the LFIP, was unlawful in terms of national and international texts and disregarded the limitation set forth in the Temporary Protection By-Law.72 This approach, which takes the higher norm in the hierarchy of norms as its basis, is legally more consistent and will contribute to the foreseeability of law if it becomes established case law. A critical issue requiring examination regarding the international protection statuses regulated under the LFIP is how restrictions of fundamental rights on the basis of public safety – which in the previous legal regime had led to considerably arbitrary practices – are implemented, both in terms of obtaining protection status and with regard to the deportation ban. A significant portion of denials of international protection requests as per Article 64 and decisions to deport on the basis of Article 54 are connected to the practice of security risk designations. For instance, in one such case, when examining the petition of a foreigner whose application for international protection was denied on grounds of public safety, the Ankara First Administrative Court ascertained that foreigners deemed to constitute a serious danger to public safety are assigned security risk designations. G-87 (General Safety) is the risk designation used for banning entry to foreigners whose entry into Turkey is considered problematic for public order, safety, or health in Turkey. These risk designations have been used to prevent foreigners from passing through Turkey to regions of conflict, to curtail making Turkey part of their route, or engaging in acts of terror inside Turkey as a result of Turkey’s geopolitical position. The purpose of international protection is for persons who are in genuine fear and risk of persecution to be allowed to remain in the country under their assigned status.73 In light of the ECtHR rulings, the rights granted under Article 3 constitute absolute rights, and a ban to enter a country on grounds of public safety is not a sufficient ground for refusing an application for international protection.74 Turkish administrative courts, however, have adopted a considerably different approach to this issue. For instance, in its decision of October 8, 2015, the Istanbul First Administrative Court ruled in favor of canceling the administrative act, arguing that the Interior Ministry had failed to indicate on what grounds the C ¸ -114 and G-87 General Safety risk designations had been assigned, that no documentation could be found in the file that notice of the designation had been served on the plaintiff, that existence of a G-87 security risk designation

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Ankara 1st Administrative Court, 2015/1210 E., 2016/51 K., January 15, 2016. Ankara 1st Administrative Court, 2015/594 E., 2015/2960 K., November 24, 2015. Ankara 1st Administrative Court ruling 2015/708 E., 2015/2243 K., November 12, 2015 is virtually identical. Ankara 1st Administrative Court, 2015/1290 E., 2015/3124 K., December 30, 2015.

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did not require deportation of the plaintiff on the argument that she/he constituted a danger to public safety, and that in fact the authority had failed to show concrete evidence as to how the plaintiff, to whom the authority had previously granted a residence permit, threatened public safety.75 The Ankara First Administrative Court also ruled in a number of cases to cancel the administrative act on the grounds that such action had been taken without any basis on concrete grounds, instead of conducting an evaluation on the objective circumstances of the plaintiff.76 The CCt, on the other hand, did not intervene in the practice of assigning risk designations in some of the individual complaints filed with the CCt.77 However, in its decision regarding the Azizjon Hikmatov case, the Court ruled to grant the applicant’s request for an injunction due to the possibility of serious harm to the applicant’s material and emotional integrity in the event of his/her deportation to his/her country. In this ruling, the court considered that the applicant had been recognized as a refugee by the UNHCR, and the detailed determinations in the 2015 Uzbekistan Human Rights Report of the Human Rights Watch Organization indicated that thousands of activists against the administration had been arrested and some of them had been jailed.78 While the court can be criticized for not having questioned the legal basis of the security risk designation, which was clearly deficient, the ruling was positive in the sense that it found the action, taken on the basis of the security risk designation, to be unlawful, since the foreigner was able to prove that she/he would be at risk in her/his origin country. The conclusion to be reached from this brief examination of Turkish judicial decisions is that security risk designations are generally assigned based on information gathered by intelligence officers from various sources without any concrete evidence. As there is no legal basis for this practice, there are no standards to prevent the arbitrary limitation of an individual’s fundamental rights. Foreigners are not even served notice of actions taken with regard to risk designations. When an action is filed on the basis of a risk designation, no information is provided to the court as to on what grounds or on the basis of what kind of information the relevant designation has been assigned. Turkish administrative courts have handed down largely inconsistent rulings in this regard. 75 76

77

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Istanbul 1st Administrative Court, 2015/583 E., 2015/1895 K., October 8, 2015. Ankara 1st Administrative Court, 2015/1857 E., 2015/2832 K., December 18, 2015; Ankara 1st Administrative Court, 2014/2342 E., 2015/2264 K., November 12, 2015; Ankara 1st Administrative Court, 2014/1660 E., 2015/818 K., April 17, 2015. A. K. K. application, CCt (Application no. 2015/757), 0.01.2015; M. S. S. application (Application no. 2014/19690), December 31, 2014. Azizjon Hikmatov application, CCt (Application no: 2015/18582), December 15, 2015.

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The fact that there is no legal basis for this practice led to a continuation of arbitrary practices prevailing in the former regime in interpreting public safety, a concept that is central to the asylum system. According to the CCt’s established case law on the principle of legal certainty, restrictions based on public safety must be based on concrete evidence at all times. A determination that a person constitutes a risk to public safety cannot simply be based on suspicion. As pointed out in the dissenting opinion of the Ankara First Administrative Court decision, in asylum law the reliability of the source of the evidence is of utmost importance for the effectiveness of the protection system. Furthermore, the paragraph added to Article 54 of the LFIP canceling the deportation ban, with a state of emergency decree in force through Law no. 676, makes the practice of assigning risk designations without concrete evidence even more dangerous. In fact, according to this paragraph, those considered as being affiliated with terrorist organizations as defined by international agencies and institutions, or those who are directors, members, or supporters of terrorist or criminal organizations, and those who constitute a danger to public order, safety, or health may be deported even if they have applied for or been granted international protection status.79 The injunctions the CCt has issued with regard to the dispositions made under this provision have mitigated the potential negative effects thereof only to a limited extent.80 The practice of assigning risk designations, in its current form, also brings to the fore certain problems with regard to the principle of equality of arms, which is an important aspect of the right to fair trial. In fact, in the case of lawsuits filed based on a security risk designation, the plaintiff is unable to question information on the origin country. The principle of the equality of arms, as assessed by the CCt in light of Article 36 of the Constitution, “means subjecting the parties of an action to the same procedural conditions and providing the parties with the opportunity to reasonably present their arguments and defences before the court without placing one party in a weaker position vis-a`-vis the other party.”81 Without the opportunity to question the security risk designation, the plaintiff is in effect weakened before the defendant – the administration – in proving her/his claims. While this issue was first brought before the CCt in the application of Z.M. and I.M., the Court denied the request based on the ECtHR’s case law on Article 6 of the ECHR. This clause of the ECHR is applicable to judgments with regards to disputes over

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Official Gazette Date-No: 29.10.2016-29872, October 29, 2016. H. S. application (Application no: 2016/22512) November 02, 2016. CCt (Application no. 2013/1134) 16.05.2013; CCt. (Application no. 2012/13), July 02, 2013; CCt (Application no. 2013/99) March 20, 2014.

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civil rights and obligations and the merits of an accusation of crime. The ECtHR ruled that actions pertaining to a foreigner’s entry into, residence in, and deportation from a country are neither relevant to a civil right or obligation, nor pertain to an accusation of a crime and, as such, fall outside of the scope of the right to a fair trial.82 ECtHR rulings provide grounds for legitimacy to states in establishing a framework of minimum standards. On the other hand, Article 53 of the ECHR provides that the Convention shall not be interpreted so as to restrict the fundamental rights agreed upon by the states.83 The standards established by the ECHR are minimum protection standards, and it is possible for member states to establish higher protection standards.84

conclusion Prior to the enactment of the LFIP, Turkish asylum and migration law was regulated by rather outdated legislations that dated back to 1950, in addition to the 1951 Geneva Convention and a number of administrative acts. In this system, the dominant institutional perspective brought the state’s sovereign rights to the forefront and granted broad discretionary powers to the administration to the point of arbitrariness. Even though the Turkish administrative courts established some case law in favor of legal certainty in a very limited number of cases brought before it, such jurisprudence did not change the arbitrary practices generated by the huge void in the legal foundation of the immigration and refugee regime in the country. The Turkish asylum and migration regime, in particular, came under increasing pressure from EU and ECtHR decisions. As outlined here, it began to undergo changes in response in 2000, first by increasing its cooperation with the UNHCR and then by developing a new approach to its refugee determination practices in at least partial accordance with the UNHCR mandate. However, it soon became clear that this response was inadequate in the face of the increasing number of entries to the country. At this stage, the Turkish administration was forced to take a more proactive approach in matters of both asylum and migration, even though this was done through regulatory acts. Finally, in 2009, the Turkish government was forced to face the multidimensional legal problems created by the legal void explained in 82 83

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CCt (Application no. 2015/2037) January 6, 2016. Law no 6366 on the Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Supplementary Protocol, Official Gazette Date-No: 19.03.1954-8662, March 19, 1954. S. I˙nceog˘lu, “Adil Yargılanma Hakkı,” In I˙nsan Hakları Avrupa So¨zles¸mesi ve Anayasa: Anayasa Mahkemesine Bireysel Bas¸vuru, ed. S. I˙nceog˘lu (Istanbul: Beta, 2013), 209–86.

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the ECtHR pilot judgment, and commenced work on the LFIP. Ultimately, a legal framework, largely inspired by EU asylum and migration acquis, was endorsed in 2013. This new law was prepared for the purpose of modernizing Turkish asylum and migration law and repealing the old legal framework so damaging to Turkey’s prestige. Through legal reforms, both a normative structure bringing international protection and migration in line with modern standards of administrative duty and an organizational structure capable of implementing relevant principles were brought to life in quite a short period of time. The LFIP’s contribution to the principle of legal certainty is directly linked with the Turkish judiciary having embraced the issue in earnest. In recent years, the highest court of the judicial hierarchy, the CCt, has increased the weight of its case law since the individual complaint mechanism has become operational. The CCt’s case law protects the principle of legal certainty as an element of the rule of law and respect for fundamental rights as set forth in Article 2 of the Turkish Constitution. Since 2015, the CCt has handed down a large number of decisions regarding the applications of refugees and migrants. In this manner the CCt has provided relatively effective oversight in the application of the LFIP, especially under a state of emergency regime. On the other hand, implementing the new law has not been without difficulties. Both deficiencies in the transitional provisions of the LFIP and the administration’s failure to enact the by-laws required for the implementation of the law in a timely manner have caused a number of glitches in practice. The administrative regulatory acts pertaining to organization, which entered into effect upon the Law’s publication in the Official Gazette, were of primary importance to the DGMM’s agenda and were implemented rather quickly, while the LFIP Implementation By-law, which was of crucial importance in terms of the principle of legal certainty, could only be enacted approximately two years after the law had entered into force. During this period, in line with its old habits, the administration was managed through inaccessible directives, the legalities of which are open to debate. In the absence of any accessible administrative regulatory acts to curtail such practices, the Turkish judiciary was faced with considerable difficulties. As I outlined in this chapter, there are a number of areas where the LFIP remains behind its original inspiration in terms of the principle of legal certainty. In particular, there are certain gaps in the definition of international protection status, and Turkish practice deviating from EU practice in certain important matters such as the definitions of refugee, conditional refugee, subsidiary protection, and temporary protection. Since the EU asylum and migration acquis is in motion itself, it serves as a moving target for Turkish

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legislative and executive organs. This has created some predictability issues during both the preparation and implementation phases of the law. Apart from that, the provisions of the LFIP and its practices relating to the mass influx of refugees arising from civil conflict zones are far more disappointing than the legal avenues provided for individual protection. In this regard, the rather ambitious initiative subsequently could not avoid being negatively affected by the pressure of a mass influx of refugees caused by the Syrian Civil War that erupted after 2011. The fact that the LFIP is particularly deficient with regard to statuses related to mass influx of refugees, such as the temporary protection status or subsidiary protection status on indiscriminate violence grounds, can be explained by the timing of the drafting process, which coincided with the Syrian Civil War. Lack of an effective responsibilitysharing mechanism with the EU, in order to deal with problems caused by a mass flow of asylum-seekers at this scale, also made a noticeable contribution to such deficiency. In this respect, the temporary protection system, which constitutes an important trivet in the status regime, has been wholly left to the administration under Article 91 of the LFIP without any precautionary provisions. As a result, the Temporary Protection By-law created an area without specific legal boundaries, in contravention of the principle of legal certainty. Beyond these problems, as political instability and violence became more prevalent in neighboring countries and these developments began to endanger Turkish public safety, the Turkish administration implemented the practice of assigning security risk designations without any legal basis within the LFIP framework. Accordingly, foreigners are being assigned security risk designations without any concrete evidence, and these designations are then used as the basis for denying requests for international protection or temporary protection and deciding to proceed with deportation under Article 54. The Turkish judiciary has handed down rather inconsistent decisions on a large number of cases on this matter since 2014. In conclusion, the findings of this research suggest that the Turkish experience with the Syrian refugee crisis shows the typical symptoms of a problem pattern. When states’ asylum systems are exposed to extreme pressure arising from mass influx of asylum-seekers, in the absence of efficient responsibilitysharing mechanisms these symptoms tend to erode their legal frameworks. In the Turkish example, such a pattern appeared in the form of the hierarchy of norms becoming inverted; repealed laws and practices being accommodated to find solutions to current problems; certain areas of asylum being deliberately left uncodified by the legislature in order to create an infinite margin of discretion for the administration; comparative law adaptations being misinterpreted; human rights treaties being utilized to lower domestic protection

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standards; and the ignoring of well-settled case law of the judiciary on interpreting fundamental concepts of law, such as “public security” or “public order,” which resulted in a cumulative failure of principle of legal certainty. The transitional justice nexus of such deficiencies is that they curb any systematic fact-finding or evidence-recording activity by the Turkish authorities, which could be utilized in a potential future transitional justice process in Syria. In this regard, it will not be surprising to come across a situation in the future where most of the valuable evidence is lost in time, should a process as such be initiated. Secondly, the deficiencies in question significantly undermine the protection opportunities of Syrian refugees and their safe return to their home country, which is a precondition for a successful transitional justice process.

references Aybay, R. “Bir I˙nsan Hakkı Sorunu Olarak Sınırdıs¸ı Edilme,” Maltepe University Law School Journal 2 (2003): 141–72. Bradley, M. Displacement, Transitional Justice and Reconciliation: Assumptions, Challenges and Lessons, Refugee Studies Centre, University of Oxford, 2012, www.rsc.ox.ac.uk/files/files-1/pb9-displace ment-transitional-justice-reconciliation-2012.pdf, 8. Colville, R. “Persecution Complex.” UNHRC: Refugees Magazine 101 (1995). www.unhcr.org/3b543f784.html. Duran, L. “Yabancıların Tu¨rkiye’den Sınırdıs¸ı Edilmesi,” I˙nsan Hakları Yıllıg˘ı 2 (1980): 3–33. Eks¸i, N. “I˙nsan Hakları Avrupa Mahkemesinin ‘Abdolkhani ve Karimnia/Tu¨rkiye’ Davasında Verdig˘i 22 Eylu¨l 2009 Tarihli Kararın Deg˘erlendirilmesi.” In I˙ltica, Uluslararası Go¨c¸ ve Vatansızlık: Kuram, Go¨zlem ve Politika, ed. ¨.C ¨ zc¸u¨ru¨mez, and S¸ Tu¨rkay. Ankara: UNHCR, 2011. O ¸ elebi, S. O Eks¸i, N. Yabancılar ve Uluslararası Koruma Kanunu (Tasarısı) (Istanbul: Beta Yayınları, 2012): 86–113. I˙c¸duygu, A. and Aksel, D. B. Tu¨rkiye’de Du¨zensiz Go¨c¸, IOM Turkey, 2012, www .turkey.iom.int/documents/IrregularMigration/irregular_migration_ turkce.pdf. I˙nceog˘lu, S. “Adil Yargılanma Hakkı.” In I˙nsan Hakları Avrupa So¨zles¸mesi ve Anayasa: Anayasa Mahkemesine Bireysel Bas¸vuru, ed. S. I˙nceog˘lu, 209–86. Istanbul: Beta, 2013. Tokuzlu, L.B. Burden-sharing Games for Asylum Seekers between Turkey and the European Union, EUI Working Papers: RSCAS 2010/05, European University Institute, Florence, 2010.

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Wilsher, D. “Non-State Actors and the Definition of a Refugee in the United Kingdom: Protection, Accountability or Culpability?” International Journal of Refugee Law 15, no. 1 (2003): 68–112. Yılmaz, A. 2014. “Tu¨rkiye’de Yabancıların Sınırdıs¸ı Edilmesi: Uygulama ve Yargısal Denetim.” In Sınır ve Sınırdıs¸ı: Tu¨rkiye’de Yabancılar, Go¨c¸ ve Devlete Disiplinlerarası Bakıs¸lar, ed. D. Danıs¸ and I˙. Soysu¨ren,207–46. Ankara: Notabene Yayınları, 2014.

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11 Perspectives on Legal Justice and Victim Reparations in the Diasporic African Great Lakes Region Helen Hintjens and Jackson Odong

introduction This chapter is an inquiry about how punishment of perpetrators is related to reparation for the victims, drawing on specific examples from the African Great Lakes region. To date, the most well-known cases are the Lubanga case at the International Criminal Court (ICC) related to the Democratic Republic of Congo (DRC), and the Bemba case, where a former rebel leader and politician from the DRC was charged with war crimes and crimes against humanity committed in the Central African Republic (CAR). The International Criminal Tribunal for Rwanda (ICTR) cases for Rwanda have been exhaustively researched; less known is the Mau Mau court case brought by Kenyan Mau Mau victims in British courts. Finally, through the ICC and the International Crimes Division (ICD) of the High Court of Uganda, some of the crimes committed in Uganda are being tried, though only those of the Lord’s Resistance Army (LRA), and not those of government soldiers or officials. Through these examples from the Great Lakes region, we investigate connections and disconnections between transitional justice (legal, distributive, and restorative) and the forced displacement of people, including the victims of war crimes, genocide, and mass atrocities. In addition, we draw attention to the fact that how transitional justice processes may be designed or promoted by Western donors is not how they may be perceived and experienced locally by those most immediately involved, whether they are the perpetrators, professionals, victims, or wider communities. This is especially true when, as in the African Great Lakes region, such populations are in conditions of continuous internal or cross-border conflict and displacement.1

The figures and events cited in this article only cover the time period until November 2018. Subsequent changes have not been discussed in detail. 1 The debate on mass displacement in the Great Lakes region is not limited to specific country cases, though here we will only discuss select examples.

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In this context, this chapter attempts to reconcile legally oriented studies on specific institutions designed to mete out international criminal justice through formal courts (the ICC, ICTR, ICTY, and various special and hybrid tribunals),2 sociological or ethnographic studies of what has been termed “justice in the vernacular,”3 and literature that focuses on people “on the move” – migrants, refugees, and asylum seekers, as well as Internally Displaced Persons (IDPs). As this volume as a whole is concerned about “establish[ing] tangible links between lack of societal peace, structural causes of human suffering, recurrent patterns of political violence” and “forced migration,” such an interdisciplinary approach is most apt. In particular, the web of entanglements created during the transitional justice processes swallows up whole the post-conflict aspirations of those whose lives have been violently reorganized, usually not once or twice, but on multiple occasions where they have been forced to flee at their peril. With reference to the specific examples drawn from the Great Lakes region in Africa, this chapter addresses the following key questions: • What is viewed as fair punishment for crimes committed, and how can victims be provided with reparations and restitution for wrongs suffered? • Who has the most say – and who has the least say – about how transitional justice mechanisms, laws, and policies are designed and then implemented, and for which particular outcomes? • How does the process of victims’ reparations, both individually and collectively, unfold under the ICC, and within national and local courts?

Critical Approaches to Justice and Security As recent studies on “hybrid” security have reminded us, external intervention that seeks to address obstacles to justice, whether at local or national levels, often fails to place itself inside the frame of responsibility for the outcomes of such processes. As Luckham and Kirk put it, the challenge is to “lay bare the webs of causality and of accountability linking poor and vulnerable people to

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For a detailed discussion on these in the context of transitional justice debates, see Nergis Canefe’s chapter in this volume. R. Nagy, “Transitional Justice as Global Project: Critical Reflections,” Third World Quarterly 29, no. 2 (2008): 275–89.; Alexander Hinton, ed., Transitional Justice: Global Mechanisms and Local Realities After Genocide and Mass Violence (New Brunswick, NJ: Rutgers, 2010); Sharp, “Emancipating Transitional Justice.”

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the international actors who in various ways determine their (in)security.”4 For instance, social tensions that result from class conflict and resource misallocation are rarely addressed in such donor-driven transitional justice programs. And yet these issues lie at the heart of political disputes and of what are often termed “political settlements.”5 As Luckham and Kirk point out, the effects of external interventions upon these processes are far from neutral: Because security, like other public goods, has an almost unmatched symbolic prestige, the power to create new and shape existing security and justice institutions is intimately bound up with the political processes central to state making and state breaking.6

Although different kinds of distinctions are observed in the literature on transitional justice, an overall synthesis of the multiple forms of justice indicates the existence of three broad and, to some extent, overlapping categories to be considered in this regard:7 (1) Legal justice, which is generally about punishment and courts, and could be local, national, or international; (2) Distributive justice, which includes measures that seek to narrow the gap between rich and poor and to ensure that structural social inequalities among populations (horizontal inequalities) are tackled and dismantled as much as possible; (3) Rectificatory justice, which includes distributive justice and yet goes beyond that to include reparations tailored to compensate for past harms caused by crimes of violence. The ambit of this third kind of justice could also include recognitional and symbolic repairs for victims. In the rest of the chapter, we consider cases of hybrid transitional justice measures in post–civil war Uganda, post-genocide Rwanda, and with reference to the ongoing violence in DRC. Experts on rights-based approaches and social justice have already recognized the importance of viewing formal and informal justice systems as operating in tandem, and not in a bifurcated manner. In the words of Celestine Nyamu-Musembi, “simultaneous use of formal and non-formal systems is a reality for a significant number of people”

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Luckham and Kirk, 2013: 19. On the issue of political settlements, see Turgut Tarhanlı’s chapter on restorative justice in this volume. Ibid., 6. Okimoto, Wenzel & Feather 2009; Hayner 2010; Opotow 2001; Armstrong 2014.

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in the Great Lakes region today.8 Plural nonformal systems are able to promote justice in multiple areas, be they gender related, legal, distributional, or social, and they are particularly relevant to the lives of poorer members of society.9 In line with this observation, we propose that contextual configurations of “political spaces” and informal influences on political sensibilities are more significant in deciding “who benefits from what kinds of reparations and how” than formal legal justice decisions and mechanisms. The observations we share in this chapter combine a background in human rights and asylum research at the Institute of Social Studies, The Hague, with direct engagement with victims through post-violence advocacy for justice and basic rights in the context of the Refugee Law Project, Uganda. Concomitantly, we blend transitional justice approaches emanating from law and social science with an NGO-led focus on the mediation of victims’ “vernacular” claims to reparative justice.10

juxtapositions: dispersed justice, imploding boundaries Most studies that explore transitional justice processes during post-violence transitions tend to view the population as more or less static, and give relatively little consideration to the overlap between forced migration and transitional justice. However, in a region like the African Great Lakes region, monumental population movements have characterized the past two decades, and resolving the position of IDPs and refugees is central to post-conflict transitional justice.11 Suffice it to say that the uprooting of millions of people throughout the region has fundamentally altered the dynamics of conflicts and reconfigured the social landscape that now forms the basis for any viable form of transitional justice and peace. Just as the camps of IDPs in northern Uganda were recruiting grounds for the LRA, so too the Mungiki in Kenya arose from the violent displacement over land that intensified in the 2007 post-electoral violence.12 For Rwanda 8

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C. Nyamu-Musembi, Review of Experience in Engaging with ‘Non-State’ Justice Systems in East Africa. London: Governance Division, DfID, 2003, 4; C. Nyamu-Musembi, “Towards an Actor-Oriented Perspective on Human Rights,” In Inclusive Citizenship: Meanings and Expressions, ed. N. Kabeer, 31–49. New York: Zed Books, 2005. R. Nagy, “Centralising Legal Pluralism? Traditional Justice in Transitional Contexts,” In Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants, ed. C. L. Sriram, J. Garcia-Godos, and O. Martin-Ortega, 81–99. New York: Routledge, 2013. Odong 2015. Gilbert Khadiagala, War and Peace in Africa’s Great Lakes Region. Berlin: Springer, 2017. Nancy Muigei, “Social Justice, Recognition and Reparation: Connecting Kenyan Mungiki ‘Gangs’ with the Mau Mau Legal Case,” In Challenging Social Exclusion: Multi-sectoral

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and the DRC, the numbers of refugees are counted in the millions. In the loosely secured refugee camps of Eastern DRC, militias recruited some of the child soldiers and armed leaders whose cases are now being heard at the ICC. Migratory movements can even exacerbate the commercialization of traditional justice mechanisms like the Acholi practice of mato oput. In this ceremonial ritual of drinking bitter herbs made from the oput tree to foster forgiveness and reconciliation, which is carried out by elders, it has been suggested by some that these elders now ask not only for food, but also for money to carry out the ritual. Similarly, in Rwanda Gacaca, once a way of talking over disputes and making amends, became a massive country-wide scheme for weekly hearings about an estimated 1.9 million crimes of genocide. Even once Gacaca hearings were over, and even once the ritual of mato oput is performed, social life is so dislocated and social ties of trust so shattered by consequences of violent displacement that all may indeed not be well.13 If only transitional justice at the local level, in the vernacular, were this simple. Transitional justice is first and foremost a global project. Arguably, however, peace-building has more resonance at the local level, and means a lot more to displaced people seeking to return home and reestablish their lives in relative harmony with others. One of the most influential critics of the self-serving view of Western donors intervening to “save” post-conflict countries through transitional justice efforts is Makau Mutua, who shows how the Western “self” absorbs reflected light from the stigmatization of “savage,” criminalized local state actors, assumed to be causing the victimization of helpless locals.14 Even more critically, Chimni refers to “a whole host of restrictive practices which prevent refugees fleeing the underdeveloped world from arriving in the North,” and suggests that a “sustained critique of these practices is called for,” since this could: “prevent the first world from occupying the moral high ground.”15 Others have similarly called for the complete disentanglement of humanitarian action from the politics of Western supremacy, invasions, and

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Approaches to Realising Social Justice in East Africa, ed. H. Hintjens, J.M. Maguru, F. Nyakaisiki, and J. Odong, 32–60. Kampala: Fountain Press, 2015. Erin Baines, “The Haunting of Alice: Local Approaches to Justice and Reconciliation in Northern Uganda.” The International Journal of Transitional Justice, 1 (2007): 91–114; B. Ingelaere, “Does the Truth Pass across the Fire Without Burning? Locating the ShortCircuit in Rwanda’s Gacaca Courts.” The Journal of Modern African Studies, 47 (2009): 507–28. Makau Mutua, “Savages, Victims and Saviours: The Metaphor of Human Rights.” Harvard International Law Journal, 42, no. 1 (2001): 201–45 B.S. Chimni, “Third World Approaches to International Law: A Manifesto.” International Community Law Review, 8, no. 3 (2006): 26; see also B. S. Chimni, “The Geopolitics of Refugee Studies: A View from the South.” Journal of Refugee Studies, 1, no. 4 (1998): 350–74.

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warfare.16 For yet others, the problem of refugees and forced migration is embedded in the politics of sovereignty and inherent limitations of the statebased model of policy-making.17 Experiences of transitional justice in its different manifestations in Kenya, Uganda, the DRC, and Rwanda suggest that the multilevel processes of both peace-building and transitional justice generally tend to exclude those who are displaced. Although transitional justice processes and institutions cut across the neat and tidy distinctions between global, national, and the local or vernacular, they also tend to marginalize refugees of other countries, those internally displaced within their own country, or those in exile, whether briefly or lifelong. In this respect, human rights and refugee NGOs play an interesting role, since they often are among the rare actors mediating across the different frames of various institutions, and they take an active interest in the minority perspectives of refugees, exiles, and the forcibly displaced. Here, we ask why ostensibly neutral global transitional justice models, mainly legal in nature, tend to ignore the subjective experiences not only of local people and victims, but also of exiles, refugees, and the internally displaced, who somehow come to be regarded as “out of place” and even time. Here, we adopt a perspective close to that of Rama Mani, who states that “[a] holistic approach is necessary,” and should be based on “‘reparative’ justice [involving] . . . restoring the rule of law through reforms to prisons, police and judiciary; rectifying human rights violations through trials, truth commissions, reparation and traditional mechanisms; and redressing the inequalities and distributive injustices that underlie war.”18 This treatment should extend to those nationals who fear returning home, or who may be implacably hostile to the existing regime due to past experiences of human rights violations suffered. In other words, the diaspora, exiles, and refugees from across borders also need to be fully incorporated into transitional justice processes, if positive peace is to be achieved. Otherwise those ignored, marginalized, and deprived of any voice may themselves despair and turn to violent solutions to ongoing conflicts in the region or in their home country.

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Francis Kofi Abiew, “Humanitarian Action under Fire: Reflections on the Role of NGOs in Conflict and Post-Conflict Situations.” International Peacekeeping, 19, no. 2 (2012). D. Bulley, “Shame on EU? Europe, RtoP, and the Politics of Refugee Protection.” Ethics and International Affairs, 31, no. 1 (2017): 51–70. Rama Mani, “Rebuilding an Inclusive Political Community after War.” Security Dialogue, 36, no. 4 (2005): 511–26; also cited in Nagy, “Transitional Justice,” 277–78

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historical and distributive justice: an illustrative case from kenya Each person and group of people who fall victim to violence in society may feel that they are due a better life, more prospects, recognition of past wrongs, and perhaps a greater share of national resources. The problem is how to reconcile such desires with the inherent limitations of legal and judicial mechanisms for reparations when mass atrocities have been committed. This is the dilemma of unfulfillable demands throughout the African Great Lakes region today. Just as local–national–global distinctions collapse, along with formal and nonformal dualities, with efforts to secure transitional and post-violence justice for victims, even time collapses into a heap. In a sense, redress for colonial injustices is still being sought, pursued through the courts at a time when recent violence, for example post-electoral violence in 2008 in Kenya, is also being prosecuted, albeit through different courts. For instance, the overt politicization of historical injustices against the Kikuyu Kenyans under the British counterinsurgency strategy was already predicted some years ago.19 Dating back to the nineteenth century, and the violence of the 1950s and early 1960s, the demands for justice revolved around land restitution and resources, but also around lost dignity and recognition of those who died and were called “terrorists” at the time. In the response of the UK government, there is some vague sense (though not openly acknowledged) of atonement for the past humiliation inflicted on people who saw themselves as freedom fighters. This “recognitional justice,” as Nancy Fraser terms it, is an important part of most social justice claims today among victims of past atrocities.20 The counterpart of recognitional justice in the Mau Mau case is historical justice, through recognition of the realities of what was done in Kenya during the last decade of Empire. The need for recognitional justice continues, and can be handed down from generation to generation. Nancy Muigei, author of a study on the Mau Mau and their latter-day offspring, the Mungiki, reflects on the redemptive role of joining such a revendicatory movement. As she puts it: Mungiki members themselves often claim the movement “saved” them from a previous life of despair, crime and poverty. By joining Mungiki they claim to have gained self-respect and to have rediscovered hope for a better future.21 19

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A. Manji, “Law, Literature and the Politics of Culture in Kenya.” Law Social Justice and Global Development, 2 (2003), www2.warwick.ac.uk/fac/soc/law/elj/lgd/2003_2/manji/manji.rtf Nancy Fraser, Social Justice in the Age of Identity Politics: Retribution, Recognition, Participation, Discussion Paper FS/98–108 Berlin: Wissenschaftzentrum Berlin fur Sozialforschung, 1998. Muigei, “Social Justice,” 52.

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Colonial dispossession affected some Kikuyu more than others, and landlessness was especially prominent in areas demarcated as “white highlands” by the British. Class conflicts are cited as significant by Muigei in understanding why Mungiki, like the Mau Mau before them, have tended to use violence. Finally, in her study, Muigei concludes that although the court case which the Mau Mau victims brought against the UK government would have an impact on some families identified as victims of the late colonial government, for other dispossessed Kikuyu it will make little if any difference. For her, “the Mungiki revolt can be linked to a failure to realise an inter-generational and inter-class handover of leadership and positions of authority, especially within the Kikuyu community.”22 What this example shows is the importance of a longer-term perspective than is usually applied to transitional post-conflict justice processes. In this case, even sixty years have been insufficient to ensure that local forms of political and social justice help to repair past damages. Finally, perhaps, whereas in Kenya it appeared that “the main hope for historical justice still lies in recourse to the formal legal institutions in the colonial heartland,” this is surely not the case throughout the Great Lakes region, where international courts have started to play a pivotal role, whatever the efforts of the powers that be to bury historical truth.23 However, as will be discussed in the following sections, litigation cannot undo history.

northern uganda: whose justice? whose peace? Whenever a war comes to an end, the tendency is for some form of “victor’s justice” to be installed to try those suspected or found guilty of crimes and atrocities on the losing side. Often those who count themselves among the winners (or at least exclude themselves from the losers) are not tried for similar, or even for worse atrocities and crimes. As Victor Peskin expresses it: Although having no formal role in the tribunals’ operations, the victor governments can effectively sabotage or otherwise control the court’s prosecutorial agenda by withholding cooperation. In the process, these states may turn the tribunals into vehicles of victor’s justice.24

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Ibid., 58. I. Cobain, “Revealed: The Bonfire of Papers at the End of Empire,” The Guardian, 29 November 2013. Victor Peskin, “Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda.” Journal of Human Rights, 4, no. 2 (2005): 214.

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Suffice to say that acting in both the interests of justice actors and of victims could be a tall order, particularly when governments make use of international institutions for delivering their own form of victors’ justice. Since “what is generally understood as criminal justice has emerged in courtrooms,” as Tim Allen reminds us, this is where the main search for criminal justice will also remain, even in the aftermath of a war. According to Allen, it therefore should come as no surprise that “in setting up the ICC, there was never the intention to bring justice in a broad sense, to all people.”25 In other words, criminal justice and related proceedings by definition do not have a societal mandate writ large. Back in 2005, in a survey conducted in Northern Uganda, it transpired that not everyone even knew the actual contents of what justice meant in the aftermath of a war.26 The notion of international justice in The Hague often seems remote. Justice needs to be qualified by more specific and perhaps local terms like criminal, transitional, or economic and social justice, and even then people may not know what this would stand for, especially, for instance, those who are displaced and still in exile. Social justice is the broadest form of justice of all, and involves those whose rights have been violated while striving to obtain a “life with peace and security and without fear.”27 The greatest challenge under transitional justice regimes is to obtain social justice for those displaced – internally as IDPs, or over borders as refugees. From the perspective of the state, post-conflict civil society often already looks hopelessly fragmented against itself, lacking coherence and unable to organize for a common purpose. However, from the grassroots perspective, central state institutions have a tendency to overlook, or to repress, local claims for variant forms of transitional justice, especially from the perspective of those who are still displaced or in exile.28 In this context, the story of the relationship between the ICC and Uganda found its full expression when, on October 13, 2005, arrest warrants were issued for five members of the LRA. At that time, it was believed that Dominic Ongwen had been killed in action earlier. He was found in Sudan and, at the time of writing, is on trial at the ICC in The Hague. The aim of these arrest

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Tim Allen, Trial Justice: the International Criminal Court and the Lord’s Resistance Army. London: Zed Press/David Philip, 2006: 177. N. P. Phuong, P. Vinck, M. Wierda, and E. Stover, Forgotten Voices: A Population-Based Survey of Attitudes About Peace and Justice in Northern Uganda. Berkeley, CA: International Centre for Transitional Justice, Human Rights Centre, 2005. Ibid., 22. A. Sjorgen, Between Militarism and Technocratic Governance: State Formation in Contemporary Uganda. Kampala and Uppsala: Fountain Publishers–The Nordic Africa Institute, 2013: 26.

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warrants was to ensure that some key individuals, suspected of a range of serious war crimes, would eventually come to trial. The underlying assumption for starting this process was that national courts were both unable and unwilling to take on this task. In this spirit, the more recent creation in 2011 of the War Crimes Court under the Ugandan High Court, also known as the ICD of the High Court of Uganda, was intended to try crimes in complementarity to the ICC. Ironically, however, one of the first cases to be heard in the ICD was the case of a Kenyan lawyer, Al-Amin Kimathi, who had created the Muslim Human Rights Forum to advocate for mainly Somali Muslim Kenyans detained and “rendered” to Uganda by the Kenyan police. During his interrogation, Kimathi confirmed that UK and US intelligence services were involved in prompting questioning by the Ugandan security forces.29 This suggests that the politics of displacement and transitional justice could easily involve methods and issues more commonly associated with the socalled war on terror and rights violations within that context. An influential report published in 2005 by Lucy Hovil and Joanna Quinn, titled Peace First, Justice Later, prompted considerable debate about the pertinence of the ICC to local justice initiatives in Uganda.30 The key suggestion in this report was that hybrid justice arrangements would fit the “culture” of Northern Uganda best. Yet, such a perspective made sense only if peace was abstracted from the question of how to resolve the mass displacement of the population of Northern Uganda. The question of how to restore a sense of normalcy to those whose customary and social institutions had largely been shattered was not resolved in this report, which tended to assume that local reconciliation practices would prove resilient enough to reintegrate those returning from exile and displacement. Around the same time, when ICC arrest warrants were first issued, Local cultural and religious leaders immediately began to lobby the ICC to stop its investigation, claiming they would deal with LRA leaders the “Acholi 29

30

As Time magazine website reported: “Kenya’s anti-terror police have a habit of making Muslims disappear across borders. Al-Amin Kimathi has made it his job to try to stop them. In 2007, the Muslim Human Rights Forum (MHRF), which Kimathi chairs, exposed a huge renditions scandal – dubbed ‘Africa’s Guantanamo’ – in which Kenya, Ethiopia, Somalia, and the U.S. were secretly moving prisoners to different African countries. Last July, the genial former journalist again raised the alarm when Kenyan police began detaining local Muslim men and delivering them to Ugandan investigators searching for clues to help solve the recent twin suicide bombings in Kampala that left 76 dead.” Xan Rice, “Kenyan Activist becomes Victim of Rendition,” 10 March 2011, http://content.time.com/time/world/article/0,8599,205 7966,00.html. L. Hovil and J. Quinn, Peace First, Justice Later: Traditional Justice in Northern Uganda, Working paper 17 (Kampala: Refugee Law Project, 2005).

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way,” using local justice mechanisms that purportedly facilitate the restoration of the community and, thus, lasting peace.31

Yet local cultural practices do not uniformly promote forgiveness and peaceful coexistence, and, indeed, leaders could be distinctly unforgiving of those who had transgressed social norms and now are returning home, often from long years of displacement. Those who had been recruited as children but were now adults were not spared from such harsh judgments, either. The case of one young woman, Alice, who had been forced to take part in killing her sister in the process of being taken into the LRA, was not unusual, it seems, in her being unable to redeem herself in the eyes of the community on her return from exile. Even years after returning, she found herself unsettled and in “internal exile.” According to Acholi beliefs, “When someone dies ‘badly’ . . . the spirit of that person will take vengeance on those responsible . . . with misfortunes such as illness, accidents and even death affecting the entire community.”32 Under such circumstances, social stigmatization and ostracism become the lot of the returnees from war. To return is not necessarily to fit in with the rest of the community, since displaced people may be unable to obtain the elusive condition of being accepted back into their social networks on the basis of relative “normalcy” of the political situation at large.33 In this larger context, a recent seminal study led by Ugandan scholars has challenged the presumed choice between restorative and retributive justice (the peace vs. justice debate) that started back in 2005 in Uganda. According to this important work, which focuses on children negotiating justice in Northern Uganda post-conflict: In the daily lives of survivors of sexual and gender based violence (SGBV) in post-conflict northern Uganda, retributive and restorative justice systems are not used as mutually exclusive mechanisms for seeking justice. Rather, they are constantly negotiated . . . . In the real-life experience of these survivors and their families, the two systems are interconnected and interdependent. Their boundaries, therefore, seem to be porous.34

31 32 33 34

Baines, “Haunting of Alice,” 96. Ibid., 92–3. Ibid. Paul Bukuluki, Ismael Ddumba-Nyanzi, John David Kisuule, Berit Schei, and Johanne Sundby, “Negotiating Restorative and Retributive Justice in Access to Justice for Survivors of Sexual and Gender Based Violence in Post-conflict Northern Uganda.” In Child Abuse and Neglect in Uganda, ed. David Kaawa-Mafigiri and Eddy Walakiri, 201. Berlin: Springer International Publishing, 2017.

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With regard to culpability associated with taking part in violence, transitional justice institutions tend to operate in ways that still suggest a form of victors’ justice (i.e., in Uganda, virtue and justice being associated only with the government), whatever the official crimes of the army and the regime may have been. Perpetrators are often defined as nonstate armed rebels, including those who may have been minors when committing atrocities and engaged in the killing of loved ones under duress. The vanquished and the rebels are the ones who are judged, and who need to make amends, face justice, and earn their place back in society through political pardon, also known as amnesty. In the context of a bias in favor of special arrangements, which are claimed to be better “adapted” to the culture of Acholi, but which are not necessarily as forgiving, Tim Allen has argued strongly for a single, universal justice standard that applies to all, irrespective of culture or location. As he puts it: My Acholi friends are like decent people everywhere else. Their way of life is special, even unique. But that does not make them “a race apart.” Most Acholis want those responsible for terrible crimes to be held to account, and in northern Uganda, as in Europe, it is possible for [legal] trials to contribute to peace-building.35

This commonsense approach ignores that the aforementioned individuals are likely to be the Acholi elite with Western education and to have access to legal knowledge and the practices of administrative power. Ordinary people are more likely to want some local and more accessible form of “empowerment to live a life of dignity,”36 and even that most elusive of goals, “ethno-justice.”37 While the Ugandan Amnesty Act 2000 was implemented in haphazard fashion, the ICC arrest warrants had similarly little resonance at the local level in Northern Uganda.38 Neither the ICC arrest warrants issued in The Hague nor the amnesty provisions favored by Uganda’s government meant much to ordinary Acholis. At the root of their resentment toward the ICC lay the inability of the Office of the Prosecutor to keep the issue of arrest warrants secret, thus allowing for backlash against the Acholi. In addition, the ICC was criticized for not prosecuting members of the Uganda People’s Defence Force

35 36

37

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Allen, Trial Justice, 181. B. Kagoro, “The Paradox of Alien Knowledge, Narrative and Praxis: Transitional Justice and the Politics of Agenda-Setting in Africa.” in Where Reality meets Law: Forging African Transitional Justice, ed. M. Okello, C. Dolan, et al., 15. Cape Town: Pambazuka Press, 2012. A. Branch, “The Violence of Peace: Ethnojustice in Northern Uganda.” Development and Change, 45, no. 3 (2014): 621. ICRC, “The Amnesty Act,” 2000, https://ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/0/7d243 0f8f3cc16b6c125767e00493668/$file/ugandan+amnesty+act+2000.pdf.

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(UPDF) for their role in atrocities during the civil war that displaced over a million people in Northern Uganda. Despair with both governmental and international strategies for their failures in seeking just remedies for victims, in the form of either Ugandan Amnesty Laws or ICC prosecutions, led to local initiatives in Northern Uganda after the end of the war. Here we consider one local initiative – the “Facing Justice” radio program, which promoted discussion of local meanings of justice and thinking through what justice really meant for local people. Through the means of such peace-oriented media programming, local views on the meaning of justice become more readily available. The “Facing Justice” program ran from 2009 to 2013, from shortly after the end of the war.39 The initiative was funded by a Northern NGO, the Institute for War and Peace Reporting, from 2011 to 2013, and was implemented by North Uganda Media Club (NUMEC), the NGO’s national partner in Northern Uganda. Local people were encouraged to phone in with their perspectives on transitional justice processes as they experienced and viewed them. One study on the specific framings of justice among listeners, and in the program itself, found that victim-centered justice and gender justice were noticeably absent from the dominant legal and, to a lesser extent, distributive and restorative justice frames.40 The multiple and hybrid understandings of justice expressed by local people, on the other hand, transcended usual distinctions between legal justice, distributive justice, and rectificatory justice. It is worth noting that in the separate case of Sudan and Darfur, where an ICC arrest warrant was issued for the sitting president of a country, Omar AlBashir, the African Union (AU) insisted that a broader definition of justice was needed than the one provided by the ICC. As Sarah Nouwen suggests, both in Uganda and in Darfur, national and regional actors, like the AU, proposed broader definitions of transitional justice, which recognized that justice and peace and reconciliation had to be pursued simultaneously. This broader, less strict legal framing of justice proved more resonant with discussions around transitional post-violence justice in both Sudan and Uganda than the narrower legal and retributive framings of transitional justice by the ICC prosecutor.41 Transitional justice becomes an attractive discourse precisely to the extent that it encompasses more than legal criminal justice. Other worthwhile aims such 39

40 41

Odong 2015. For more information about the Facing Justice program, which was sponsored by the Institute for War and Peace Reporting see the following page: https://iwpr.net/focus/facingjustice-uganda, accessed October 5, 2017. Odong 2015 Sarah Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan. Cambridge: Cambridge University Press, 2013: 297, 304.

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as peace and reconciliation, which can more readily be vernacularized, help to make transitional justice more acceptable in the specific settings where most victims live. In line with this, the final peace agreement in Northern Uganda was very holistic, comprising accountability, reconciliation and truthtelling, reparations for victims and traditional justice processes, and resolving the economic and social grievances of the people of Northern Uganda, as well as a full Disarmament, Demobilization, and Reintegration (DDR) program for former combatants. No stone was left unturned, it seems.42

other cases: the icc and the ictr The first case to be completed at the ICC was the Thomas Lubanga trial (The Prosecutor v. Thomas Lubanga Dyilo ICC-01/04–01/06), involving charges of recruiting and using child soldiers.43 This case took an exceptionally long time, the first court appearance being in March 2006 and the trial starting only three years later. Even in 2017 the case was not quite completed, since provisions remained to be agreed on for reparation of victims.44 Even more controversial was the Bemba case (The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05–01/ 08), involving charges of atrocities and especially sexual violence committed by soldiers recruited by Bemba in the DRC during fighting in the CAR. Even before the sentencing, concern was expressed about how the Bemba trial was popularizing divisive ethnic labels (especially the term “Banyamulenge”) and, in this way, was potentially reinforcing violence along identity lines, not only in DRC but through projection in the CAR as well. In addition, the way in which international criminal justice processes have operated in the DRC indicates the selectivity of the indictments – some warlords are given ministerial posts, while others, much more minor in some cases, find themselves in court at the ICC. This raises the question of how “the law and legalism associated with transitional justice may serve to obfuscate the very real power dynamics and contested political choices at the heart of any set of transitional justice mechanisms.”45 Thomas Lubanga had been arrested after a negotiated settlement in Congo, but eventually went on to stand trial in The Hague as one of the only warlords

42 43

44

45

Ibid., 126. The full details of the Lubanga case can be found at this page on the ICC website: www.icccpi.int/drc/lubanga, last accessed September 1, 2017. Helen Hintjens and Clara Angelica Garcia Orozco, “Law as an Instrument of Justice? Victim Reparations at the International Criminal Court.” In Conflict, Peace, Security and Development: Theories and Methodologies, ed. H. Hintjens and D. Zarkov, 167–83. London: Routledge: 2015. Sharp, “Emancipating Transitional Justice,” 156.

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at that time to face charges. For many in Africa, this amounted to “prosecuting the vanquished and not the sitting government or the ‘big fish.’”46 The founder of a relatively minor militia group, the Union des Patriotes Congolaises (UPC), Lubanga’s trial started in 2009 and concluded in 2012. He was found guilty of conscripting and enlisting child soldiers under fifteen and using them in warfare. He received a sentence of fourteen years, and reparations processes are still underway for the 129 or so registered victims and their communities. Progress has been very slow, and according to one source, there is a major problem with the reparations process, to the point that: Victims in the DRC are losing hope that they will see any form of redress for their suffering. Though encouraged by their lawyers, civil society and other advocates to continue campaigning for court-ordered awards, the lack of results from their sustained efforts has left many victims open to ridicule by their own families and within their communities. The situation has also discouraged supporters in civil society who have invested significant time and resources in assisting victims without seeing any results.47

Debates over the performance of transitional justice institutions in Rwanda have been so polarized among the academic and policy circles that it is as if there were “Two Rwandas.”48 In another sense it is as if there were also two kinds of Rwandans – those who live within the physical boundaries of Rwanda and those who remain in the diaspora, especially Rwandans living in exile in a landscape extending from Nairobi to the Antipodes and from South Africa to Iceland. David Booth and Frederick Golooba Mutebi acknowledge that, given the degree of violence in the country’s past, and the sheer number of Rwandans dispersed to the four winds, “interpretations of almost every aspect of Rwanda and its history are exceptionally polarized with even scholarly and analytical writings tending to be pigeonholed by their critics as either apologias for or attacks upon Paul Kagame and the RPF.”49 With this point in mind, it is not surprising that very different claims have been made for transitional justice institutions and processes in Rwanda by different populations. 46

47

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Marlies Glasius, “What Is Global Justice and Who Decides? Civil Society and Victim Responses to the International Criminal Court’s First Investigations.” Human Rights, 31 (2009): 504. Sharajneet, P. and G. Mushiata. “Judgement Denied: the Failure to Fulfil Court-Ordered Reparations for Victims of Serious Crimes in the Democratic Republic of the Congo.” In ICTJ Briefing, New York: International Centre for Transitional Justice, 2012, www.ictj.org/publica tion/judgement-denied-failure-fulfill-court-ordered-reparations-victims-serious-crimes, 7–8. Helen Hintjens, “‘As if There Were Two Rwandas’: Polarised Research Agendas in PostGenocide Rwanda.” In Hintjens and Zarkov, Conflict, Peace, Security and Development. Booth, David and Fred Golooba-Mutebi. Developmental Patrimonialism? The Case of Rwanda, Working Paper 16, APPP (African Power and Politics Program) (London: ODI, 2011), 4.

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The ICTR, along with the ICTY, has commonly been viewed as pioneering in the field of international criminal justice, and as having paved the way for the ICC. The common view among those most closely involved is that: The ICTY and other international and hybrid courts established since 1993, including the ICC, have made an immeasurable contribution to bringing about an era in which accountability is increasingly the default expectation and not the exception, especially when it comes to senior political and military leaders.50

Meanwhile, the national courts, which barely coped with the caseload of suspected genocide perpetrators, were largely bypassed by transitional justice arrangements, and for this purpose a neo-traditional form of localized justice was (re)invented. As already mentioned, the 11,000 local courts known as Gacaca were introduced almost a decade after the genocide as a remedial measure. These local courts were “at once formal and informal, community-based and statedriven, traditional and contemporary, and punitive and restorative.”51 They were assessed by the government as being infinitely more efficient and effective in combining the three elements of transitional justice – the legal/punitive, the distributive, and the restorative – into a hybrid whole and at a relatively little cost, especially when compared with international efforts spent through the ICTR, which “completed 75 cases since 1997, with annual budgets over US$200 million.”52 In contrast, the Gacaca processed almost two million cases, at an estimated total cost of US$46 to US$65 million.53 Is it fair to conclude, as this rather positive evaluation does, that Gacaca is a much more efficient “home-grown” model of justice? Although designed with the specifics of the Rwandan genocide in mind, their “blending of punitive and restorative aims and traditional and contemporary elements offer important insights for justice pursuits around the world.”54 Gender politics has also been a very significant element of localized efforts to promote justice in Rwanda. Refugees in the diaspora have been encouraged to return to

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52

53 54

Chatham House, The ICC and the Yugoslav Tribunal: Upholding International Criminal Law? Report of a Discussion, April 2, 2014, involving Fatou Bensouda, ICC prosecutor, Judge Theodor Meron, president of the International Criminal Tribunal for the Former Yugoslavia and chaired by Abiodun Williams, director of the Hague Institute for Global Justice, www .chathamhouse.org/sites/files/chathamhouse/field/field_document/20140402ICCYugoslavTri bunal_0.pdf, 6. H. N. Brehm, C. Uggen, and J.-D. Gasanabo, “Genocide, Justice, and Rwanda’s Gacaca Courts.” Journal of Contemporary Criminal Justice, 30, no. 3 (2014): 346. International Criminal Tribunal for Rwanda (ICTR), Annual Budget, 2013, www.unictr.org/ Abouta/GeneralInformation/tabid/101/Default.aspx. Brehm et al., “Genocide, Justice, and Rwanda’s Gacaca Courts,” 346. Ibid., 347.

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the country, and have been promised reintegration packages and homes, as well as full citizenship rights. Overall, policies in agriculture, in political representation, and in education “have sought to pierce all the layers of injustice, exclusion, and abuse of oppression’s onion by simultaneously militating for economic development, women’s empowerment, cultural revitalization, and constitutional rights,” yet without allowing any challenges to be posed to those in authority in the state.55

concluding thoughts In conclusion, at the very least what this chapter has shown is, as suggested by Rosemary Nagy, that “a narrow, legalistic focus on gross violations of civil and political rights overlooks the ways in which structural violence and gender inequality inform subjective experiences of political conflict, injustice and their consequences,” and experiences of displacement and flight.56 However, in response to the leading question of this volume concerning whether it is possible “to bring together the [academic] work . . . pertaining to human displacement and its links with transitional justice at a global level,” we argued this not to be as straightforward a task as it may appear at first. At the level of scholarship, there seems to be a divergence between the paradigmatic framework of most refugee-related legal and sociological literature and studies of post-violence transitional justice and reconstruction. This is a reflection of a strange neglect of those who are displaced, whether within the state, or those who have moved outside and across state borders. With problems being prevalent in provision of any forms of post-violence justice, the “gap in the quality and availability of impact evaluations for past and present interventions . . . is even more pronounced for refugee populations.”57 Since the experiences of “vernacular justice” at the local level are very often abstracted from the realities of mass displacement, the challenges of postwar peace-making tend to avoid dealing with the mass displacement of those who have been affected by war and violence. This chapter purported the view that it is vital to connect transitional justice efforts not only with broader peace-building efforts, but also with an open 55

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Samuel Martinez, “Taking Better Account: Contemporary Slavery, Gendered Narratives, and the Feminization of Struggle.” Humanity: an International Journal of Human Rights, 2, no. 2 (2011): 286. Nagy, “Transitional Justice,” 287. Hannah Tappis, Jeffrey Freeman, Nancy Glass, and Shannon Doocy, “Effectiveness of Interventions, Programs and Strategies for Gender-Based Violence Prevention in Refugee Populations: An Integrative Review,” PLoS currents 8 (2016), http://currents.plos.org/disasters/ article/effectiveness-of-interventions-programs-and-strategies-for-gender-based-violence-pre vention-in-refugee-populations-an-integrative-review/, n.p.

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acknowledgment of the misfit between state boundaries, localities, and the populations who reside in and across those localities. The intermeshed realities of hybrid societies in the African Great Lakes region, where refugees and the displaced have moved in all directions, across and within international borders, belies simplistic models of social reality, and of justice for that matter. Settlers, locals, resettled, diaspora, and mixed populations continue to have disputes over land and resources, and they face growing constraints over their ability to cope. This means that the prospects today of finding “neutral and apolitical solutions to highly contested questions” besetting the populations of the Great Lakes region countries are less than ever.58 In other words, whatever outcomes result from transitional justice, and however broadly or narrowly defined they are, the result for those who are displaced and live in exile will remain tangential at best. We should therefore accept that there will be little, if any, consensus around the desirability of legal, distributive, and restorative justice measures among the post-conflict populations pertaining to one particular area. For all those who were displaced and for those who returned home in the hope of reconstructing their lives, the goal is the same – to make a living, to live securely and with dignity, and to protect their families. Perhaps the most suitable transitional justice framework for those whose lives are in perpetual flux, like those in exile, remains the “positive peace” framework inherited from the early days of Peace Studies. This notion dates back to the late 1960s, when Johan Galtung was calling for positive rather than negative peace, meaning real structural transformation rather than simply an end to physical attacks and warfare.59 From this perspective, the displaced and refugees experience a level of structural violence that is an even greater threat to them than to the rest of an impoverished and insecure population. Those settled, or resettled, in one place may risk losing their land, or have an insecure livelihood, but they are likely to have recovered at least some parts of their social support networks. In contrast with this, the displaced and long-term exiles frequently find themselves without any future plans, and may be especially vulnerable to forms of physical and nonphysical coercion, including becoming indebted and losing their personal autonomy as a result. It requires far more than fair legal processes for the transitional injustice problems of migrants and refugees to be tackled. Fair trials and sentencing cannot bring about any structural changes, or repair the wounds of those suffering the most damage and left isolated. Remedying distributional injustices without bringing perpetrators, especially leaders, to justice, will not address the root causes of displacement as a result of earlier violence and war, either. 58 59

Sharp, “Emancipating Transitional Justice,” 155. Johan Galtung, “Violence, Peace, and Peace Research.” Peace Research 6, no. 3 (1969): 167–91.

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In this regard, the category of victim should be defined in a way that is disassociated from a particular territory and, instead, relates to a social group or categorically defined population, often dispersed very widely indeed. As such, the diasporic victims need to be acknowledged as part of the total transitional justice picture, and not rendered invisible by assumptions about their needing to be “home” to be able to benefit from postwar transitional justice and peacebuilding measures. To restore the sense of dignity for the ordinary people, to open up possibilities for resettlement to the displaced, and to advocate for strategies that allow personal renewal, irrespective of the person’s location, more targeted measures are needed. The point here is that, however well designed a transitional justice model may be, within a context that is characterized by mass displacement, and with marked polarization of views about both the future and the past, transitional justice measures alone cannot achieve much more if governance deficits remain unaddressed. Recent demands for “transformative justice” seem to recognize the fluid quality of social groupings after mass migration, and may prove a more promising starting point than the notion of transitional justice. For those who remain displaced, how will they be included in the transformative projects designed for postwar recovery – and where? With such proposals, it sometimes seems we are harking “back to the future.” Transformative justice bridges the legal, distributive, and restorative aspects of justice, making it more suited to hybrid everyday experiences of displaced victims and those in exile. On the other hand, transformative justice measures may have to be locally implemented, and those who have been forcibly removed from the localities where postwar peace-building is being conducted may simply not be considered as relevant actors when plans for local change are drawn up. To undo the “transformative injustices” that result from a poisonous mix of forced displacement and violent conflict, any project for peace-building and transitional justice must start from the goal of positive peace, and accept the sheer messiness of postwar social realities, where the displaced, as well as those who returned and who never left, are equally at “home,” even when they find that all they knew as solid has melted into air.60

references Abiew, Francis Kofi. “Humanitarian Action under Fire: Reflections on the Role of NGOs in Conflict and Post-Conflict Situations.” International Peacekeeping 19, no. 2 (2012). 60

Paul Gready and Simon Robins, “From Transitional to Transformative Justice: A New Agenda for Practice.” International Journal of Transitional Justice, 8, no. 3 (2014): 339–61.

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Allen, Tim. Trial Justice: the International Criminal Court and the Lord’s Resistance Army. London: Zed Press/David Philip, 2006. Baines, Erin. “The Haunting of Alice: Local Approaches to Justice and Reconciliation in Northern Uganda.” The International Journal of Transitional Justice 1 (2007): 91–114. Booth, David and Fred Golooba-Mutebi. Developmental Patrimonialism? The Case of Rwanda. Working Paper 16, APPP (African Power and Politics Program). London: ODI, 2011. Branch, A. “The Violence of Peace: Ethnojustice in Northern Uganda.” Development and Change 45, no. 3 (2014): 608–30. Brehm, H. N., C. Uggen, and J.-D. Gasanabo. “Genocide, Justice, and Rwanda’s Gacaca Courts.” Journal of Contemporary Criminal Justice, 30, no. 3 (2014): 333–52. Bukuluki, Paul, Ismael Ddumba-Nyanzi, John David Kisuule, Berit Schei, and Johanne Sundby. “Negotiating Restorative and Retributive Justice in Access to Justice for Survivors of Sexual and Gender Based Violence in Post-conflict Northern Uganda.” In Child Abuse and Neglect in Uganda, ed. David Kaawa-Mafigiri and Eddy Walakiri, 201–25. Berlin: Springer International Publishing, 2017. Bulley, D. “Shame on EU? Europe, RtoP, and the Politics of Refugee Protection.” Ethics and International Affairs 31, no. 1 (2017), 51–70. Chatham House. The ICC and the Yugoslav Tribunal: Upholding International Criminal Law? Report of a Discussion, April 2, 2014, involving Fatou Bensouda, ICC Prosecutor, Judge Theodor Meron, President of the International Criminal Tribunal for the Former Yugoslavia and Chaired by Abiodun Williams, Director of the Hague Institute for Global Justice. At: www.chathamhouse.org/sites/files/cha thamhouse/field/field_document/20140402ICCYugoslavTribunal_0.pdf. Chimni, B. S. “Third World Approaches to International Law: A Manifesto.” International Community Law Review 8, no. 3 (2006): 3–27. Chimni, B. S. “The Geopolitics of Refugee Studies: A View from the South.” Journal of Refugee Studies, 1, no. 4 (1998): 350–74. Cobain, I. “Revealed: The Bonfire of Papers at the End of Empire.” The Guardian, November 29, 2013. Fraser, Nancy. Social Justice in the Age of Identity Politics: Retribution, Recognition, Participation. Discussion Paper FS/98–108. Berlin: Wissenschaftzentrum Berlin fur Sozialforschung, 1998. Galtung, Johan. “Violence, Peace, and Peace Research.” Peace Research 6, no. 3 (1969): 167–91. Glasius, Marlies. “What is Global Justice and Who Decides? Civil Society and Victim Responses to the International Criminal Court’s First Investigations.” Human Rights 31 (2009): 496–520.

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Gready, Paul and Simon Robins. “From Transitional to Transformative Justice: A New Agenda for Practice.” International Journal of Transitional Justice 8, no. 3 (2014): 339–61. Hinton, Alexander. ed. Transitional Justice: Global Mechanisms and Local Realities After Genocide and Mass Violence. New Brunswick, NJ: Rutgers, 2010. Hintjens, Helen. “‘As if There Were Two Rwandas’: Polarised Research Agendas in Post-Genocide Rwanda.” In Conflict, Peace, Security and Development: Theories and Methodologies, ed. H. Hintjens and D. Zarkov. London: Routledge, 2015. Hintjens, Helen and Clara Angelica Garcia Orozco. “Law as an Instrument of Justice? Victim Reparations at the International Criminal Court.” In Conflict, Peace, Security and Development: Theories and Methodologies, ed. H. Hintjens and D. Zarkov, 167–83. London: Routledge, 2015 Hovil, L. and J. Quinn. Peace First, Justice Later: Traditional Justice in Northern Uganda. Working paper 17. Kampala: Refugee Law Project, 2005. ICRC. “The Amnesty Act,” 2000. https://ihl-databases.icrc.org/applic/ihl/ihlnat.nsf/0/7d2430f8f3cc16b6c125767e00493668/$file/ugandan+amnesty+ act+2000.pdf. Ingelaere, B. “Does the Truth Pass across the Fire Without Burning? Locating the Short-Circuit in Rwanda’s Gacaca Courts.” The Journal of Modern African Studies 47 (2009): 507–28. International Criminal Tribunal for Rwanda (ICTR). Annual Budget, 2013. www.unictr.org/Abouta/GeneralInformation/tabid/101/Default.aspx. Kagoro, B. “The Paradox of Alien Knowledge, Narrative and Praxis: Transitional Justice and the Politics of Agenda-Setting in Africa.” In Where Reality meets Law: Forging African Transitional Justice, ed. M. Okello, C. Dolan, et al., 4–52. Cape Town: Pambazuka Press, 2012. Khadiagala, Gilbert. War and Peace in Africa’s Great Lakes Region. Berlin: Springer, 2017. Mani, Rama. “Rebuilding an Inclusive Political Community after War.” Security Dialogue 36, no. 4 (2005): 511–26. Manji, A. “Law, Literature and the Politics of Culture in Kenya.” Law Social Justice and Global Development 2 (2003), www2.warwick.ac.uk/fac/soc/l aw/elj/lgd/2003_2/manji/manji.rtf Martinez, Samuel. “Taking Better Account: Contemporary Slavery, Gendered Narratives, and the Feminization of Struggle.” Humanity: an International Journal of Human Rights 2, no. 2 (2011): 278–303. Muigei, Nancy. “Social Justice, Recognition and Reparation: Connecting Kenyan Mungiki ‘Gangs’ with the Mau Mau Legal Case.” In Challenging Social Exclusion: Multi-sectoral Approaches to Realising Social Justice in East Africa, ed. H. Hintjens, J.M. Maguru, F. Nyakaisiki, and J. Odong, 32–60. Kampala: Fountain Press, 2015.

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Mutua, Makau. “Savages, Victims and Saviours: the Metaphor of Human Rights.” Harvard International Law Journal 42, no. 1 (2001): 201–45. Nagy, R. “Centralising Legal Pluralism? Traditional Justice in Transitional Contexts.” In Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants, ed. C.L. Sriram, J. Garcia-Godos, and O. Martin-Ortega, 81–99. New York: Routledge, 2013. Nagy, R. “Transitional Justice as Global Project: Critical Reflections.” Third World Quarterly 29, no. 2 (2008): 275–89. Nouwen, Sarah. Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan. Cambridge: Cambridge University Press, 2013. Nyamu-Musembi, C. “Towards an Actor-Oriented Perspective on Human Rights.” In Inclusive Citizenship: Meanings and Expressions, ed. N. Kabeer, 31–49. New York: Zed Books, 2005. Nyamu-Musembi, C. Review of Experience in Engaging with “Non-State” Justice Systems in East Africa. London: Governance Division, DfID, 2003. Peskin, Victor. “Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda.” Journal of Human Rights 4, no. 2 (2005): 213–31. Phuong, N.P., P. Vinck, M. Wierda, and E. Stover. Forgotten Voices: A Population-Based Survey of Attitudes About Peace and Justice in Northern Uganda. Berkeley, CA: International Centre for Transitional Justice, Human Rights Centre, 2005. Sharajneet, P. and G. Mushiata. “Judgement Denied: the Failure to Fulfil Court-Ordered Reparations for Victims of Serious Crimes in the Democratic Republic of the Congo.” ICTJ Briefing. International Centre for Transitional Justice, New York, 2012. www.ictj.org/publica tion/judgement-denied-failure-fulfill-court-ordered-reparations-victimsserious-crimes. Sharp, Dustin. “Emancipating Transitional Justice from the Bonds of the Paradigmatic Transition.” International Journal of Transitional Justice, 9 (2015): 150–69. Sjorgen, A. Between Militarism and Technocratic Governance: State Formation in Contemporary Uganda. Kampala and Uppsala: Fountain Publishers–The Nordic Africa Institute, 2013. Tappis, Hannah, Jeffrey Freeman, Nancy Glass, and Shannon Doocy. “Effectiveness of Interventions, Programs and Strategies for Gender-Based Violence Prevention in Refugee Populations: An Integrative Review.” PLoS currents 8 (2016), http://currents.plos.org/disasters/article/effectiveness-of-int erventions-programs-and-strategies-for-gender-based-violence-prevention-inrefugee-populations-an-integrative-review/

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Index

accountability, xxvi, 4, 34, 37, 39, 52–53, 56–57, 60, 65–67, 69–71, 73, 75, 85–86, 97, 101, 112, 175, 179, 225, 227–229, 254, 273, 285, 287 Acholi, xx, 276, 281–283 administrative practices, xxiii, 18 advocacy, xvi, 3, 58, 84, 131, 140, 153, 171, 180, 193–194, 203, 206, 217, 275, 281, 286, 290 Afghan refugees, 23, 26, 28 Africa, viii, xviii, xx, 5, 12, 52, 55, 61–64, 67–68, 70–71, 74, 76, 78, 83–85, 87–92, 100, 103, 136–138, 161, 163, 206–207, 215, 272–273, 275–276, 278, 280–281, 283–286, 289 African Union, 55, 66, 68–69 Extraordinary African Chambers (EAC), 55 All Bodoland Minority Students’ Union (ABMSU), 16 Amsterdam Treaty, 249 apology, 38, 40–41 Arab, 167, 172, 175, 180, 263 Arab Charter on Human Rights, 161, 163 arbitrary arrest, 67, 178, 227 Ardoyne Commemoration Project (ACP), 242 Arendt, Hannah, xx, 35, 50 armed groups, 109–110, 114, 117, 129, 131, 141 Armenian question, xxi, 38, 41, 43, 45, 49 Arusha Peace Accords, 89, 93 Assam, 14–17, 19 assistance programs, 196 Assyrian Christians, 158, 167, 173, 180, 182 Assyrians, 173–175, 177, 179–180 asylum, xxiii, xxv, 3, 17, 22–24, 28–29, 53, 96, 160, 168, 181, 193–194, 196, 200, 205–206, 212, 247–250, 252–253, 256, 263, 266–269, 273, 275

asylum regimes, 252 authoritarian rule, xx, 135 Balkans, 61, 158, 206 Bangladesh, 11–12, 18, 22–25, 52 Bemba case, xx, 272, 285 Bodoland People’s Front (BPF), 16 body politic, xx, xxvi borderlands, vii, xxv, 9, 14, 18–20, 26 Buddhism, 140, 223 Buddhist, 12, 139, 225 Burundi, 68, 68, 85, 89–90, 96, 102, 206 Calcutta Municipal Gazette (CMG), 9–10 Catholic, 139 Central African Republic (CAR), xx, 69, 272, 285 Ceylon Language Act, 1956 (CLA), 140 Chakma refugees, 12, 22–24 child soldiers, 276, 285–286 Chittagong Hill Tracts, 24 citizenship, xxiv, 12, 14, 26, 30, 139, 165, 259, 288 Citizenship Act, 12, 14, 139 civil society, 3, 14–15, 90, 142–143, 227, 280, 286 civil war, 13, 21, 52, 61, 67, 71, 73, 89, 91, 103, 141, 222, 225, 227, 230, 233, 236, 240, 247, 269, 274, 284 collective responsibility, 4 Colombia, viii, xxv, 2, 33, 108–118, 120–121, 125, 128–131, 133 AGC (United Self-Defence Forces of Colombia), 110 Eje´rcito de Liberacio´n Nacional–National Liberation Army (ELN), 109–110 communal violence, 174, 176 community conflict, xix, 72

294

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Index community service, xviii, 97–98 compensation, 4, 21, 34–35, 38, 54, 65, 111, 162, 165 compensatory judicial policy, 37 compulsory jurisdiction, 60–61 condemnation, 49, 208, 235 Congo Democratic Republic of the Congo (DRC), xx, 69, 73, 89–90, 161, 194–195, 197, 202, 205–206, 209, 212–213, 216, 272, 274, 276–277, 285–286 constitutionalism, xx courts, xviii, xix, xx, 29–30, 40, 53–57, 60–62, 64–66, 68, 70–72, 74, 78, 83, 98–100, 102, 116, 141, 194, 196, 207–208, 212, 229, 253, 255, 258, 264–268, 272–274, 278–279, 281, 285–287 crimes against humanity, 36, 54–55, 61, 66, 69, 72, 75–76, 94, 99, 143, 272 criminal prosecution, xvii, 92, 136, 205 cultural identity, 243 Darfur, 62–63, 65, 67, 123, 284 Dayton Peace Agreement, 159, 161, 163 de facto state, 103, 142–143, 151, 154 Declaration on the Elimination of Violence Against Women (DEVAW), 194 decolonization, 12–13, 23, 59 democracies, 136 democracy, xx, 5, 15, 25, 30, 63–64, 87, 103, 120, 135–137, 140, 152–153, 174–175, 179, 225, 228, 240, 244 denial, xv, 4, 15, 21, 37, 59, 125, 138–140, 146, 148, 150, 159, 209, 213, 226–227, 230, 237–238, 251, 253–254, 263–264, 266, 269, 286 denunciation, 65, 100 deportation, 16, 27–28, 87, 177, 251, 254–255, 258, 261, 264–267, 269 designated safe third country, 250, 253 detention, 54, 67, 99–100, 102, 142, 147–148, 172, 178, 194–195, 255, 261 Directorate General of Migration Management (DGMM), 258–259, 263, 268 disempowerment, 236, 241 dispersed justice, 275 displaced children, 91 displaced young adults, 83, 85, 90 displacement, xvi, xviii, xix, xx, xxi, xxii, xxiii, xxiv, xxv, xxvi, 2–5, 9–12, 16, 20–21, 23, 52–54, 61, 66, 72, 83–88, 96, 101–103,

295

108–109, 111, 113–117, 120, 122–125, 129–130, 135, 144, 153–154, 158–160, 163, 165–166, 168–174, 176–177, 179–182, 195, 200, 219, 222, 233, 236, 247, 272, 275–277, 280–282, 284, 288–290 dispossession, xxvi, 2, 52, 54, 56–57, 60–61, 65, 72, 75–76, 125, 160, 219, 279 distributive justice, xix, 274, 278, 284 domestic trials, 57, 61, 65 donor structures, 109 Eastern Mediterranean, 248 Eje´rcito Popular de Liberacio´n–Popular Liberation Army of Colombia (EPL), 110 elections, 10, 15–16, 63–64, 68, 89, 98, 103, 140–141, 165, 175, 178, 183 empowerment, 42, 54, 180, 211, 214, 217, 230, 235–236, 239–241, 243, 283, 288 equalizing justice, 38 ethics of witnessing, 1–2 ethnic fragmentation, 171 ethnicity, 89, 145, 153 ethno-nationalism, xxiii European Convention on Human Rights (ECHR), 251–252, 256, 266–267 European Court of Human Rights (ECtHR), 56, 249–252, 254, 256–257, 260–261, 263–264, 266–268 European Union (EU), xxiii, 248–250, 253, 257, 260–263, 267–269, 277 ex-combatants, xxiv, xxv, 223–224, 242–243 exile, 2, 83, 87, 89–91, 96, 101, 164, 166, 181, 277, 280–282, 286, 289–290 exodus, xxii, xxiii, 85, 90, 175 Extraordinary Chambers in the Courts of Cambodia (ECCC), 55, 70 FARC-EP (Revolutionary Armed Forces of Colombia–People’s Army), 109–111, 114, 116–117, 125, 129–131 female combatants, viii, xxiii, 222, 224, 230, 233, 235–237, 241–242 female genital cutting (FGC), 203 forced displacement, viii, xxi, xxiv, 54, 57, 60, 62, 73, 88, 100, 108, 112–115, 120, 122, 129, 158–160, 174, 272, 290 forced migration, ix, xviii, xxii, xxv, 1–5, 20–21, 23, 26, 29, 52–53, 55, 60–62, 71, 74, 84, 88, 101, 108–109, 144, 154, 170, 219, 273, 275, 277 France, 43, 75, 80, 209

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296

Index

gacaca courts, xviii, xix, xx, 88–89, 96–100, 276, 287 gender identity, xxiv, 234 gender roles, 222, 224, 230, 234–235, 240, 243 genocide, vii, xviii, 11, 33, 35–36, 61–62, 75, 83–85, 88–102, 106, 143, 161, 164, 168, 174, 176, 180, 184, 197–199, 207, 272–274, 276, 286–287 geopolitical perspective, xx Global North, xxiii, 2–5, 57 Global South, vii, ix, xvi, xvii, xxi, xxiii, 1–5, 52, 54–55, 57, 59, 63, 71, 74–75, 79 government armed forces, 113 Government of Bengal (GoB), 9 governmentality, xxvi, 17 Great Lakes [Africa], viii, xviii, xx, 84–85, 88, 103, 206–207, 272–273, 275, 278–279, 289 group grievances, 166–167 guerillas, 131 Hindu, 9–13, 23, 139–140, 227, 240 historical crimes, 38–39 Holocaust, 35, 161, 202 homeland, 15, 17, 20, 137, 140, 143–144, 165–166, 223, 240, 252 homogeneous enclaves, xxiii hospitality, 24, 28–29 human rights activists, 110 human rights law, 43, 56, 58, 60, 67 human rights norms, 33, 218 human rights violations, 53, 60, 72, 83–85, 101, 135, 138, 167, 201, 224, 229, 252, 277 human suffering, 1, 3–4, 37, 76, 273 human trafficking, 25, 54 humanitarian action, xviii, 276 Hutu, xix, 84, 88–90, 93, 96, 206 hybrid courts, vii, xxi, 52, 55–58, 60–61, 64–66, 68–69, 70, 73–75, 287 hybrid tribunals, 55, 61, 70–71, 273 illegal migrants, 12, 17, 25 immigrant labor, 17 imprisoned children, 102 impunity, xv, xvi, 75, 83, 89, 138, 142, 182, 194, 199, 204, 206, 213, 226–227 Impuzamugambi, 89 India, vii, ix, xvii, xxiv, xxv, 2, 9–14, 17–29, 52, 76, 139, 149, 198, 209 Foreigners Act, 12, 14, 28 Indian Constitution, 10, 23 individual rights and freedoms, xix

Ingando, xviii, 97 insecurity, viii, xxi, 13–14, 20, 28, 158–159, 167, 169–174, 176, 182, 244 institutional capacity, 110–112, 119, 122, 128, 171 institutional reforms, xvii Interahamwe, 84, 89–90 interdisciplinarity, 273 Intergovernmental Authority on Development (IGAD), 69 internal displacement, 2, 22, 86–87, 113–115, 144, 159, 161, 163, 174, 176 internally displaced persons (IDP), 3, 11, 17, 21–23, 52, 84, 86–87, 100, 109, 113, 154, 163–164, 166, 168, 171, 173–174, 176–177, 180–182, 196, 202, 273, 277 international courts, 56, 58, 60–61, 63–64, 75–76, 93, 279 International Crimes Division of the High Court of Uganda (ICD), 272, 281 International Criminal Court (ICC), xx, 53, 55–56, 62–68, 70–71, 73–74, 78, 86–87, 196, 219, 272–273, 276, 280–281, 283–285, 287 International Criminal Courts and Tribunals (ICCTs), 72, 74 international criminal law, 42, 52, 55, 57–58, 60–63, 65, 70–71, 75, 93–94, 143 International Criminal Tribunal for Rwanda (ICTR), 55–56, 93–94, 272–273, 285, 287 International Criminal Tribunal for the Former Yugoslavia (ICTY), 55–56, 86, 273, 287 International Crisis Group (ICG), 74, 142, 178–179, 225–226 international judicial bodies, 53, 56 International Military Tribunals, 35 international non-governmental organization (INGO), 84 International Organization for Migration (IOM), 158, 170, 174 international protection, xxiii, 26, 205, 247–248, 250–252, 257, 260, 262–264, 266, 268–269 international responsibility-sharing, 247 Iran, xxii, 28, 52, 251, 253 Iraq, viii, xxi, xxii, 27–28, 52, 158–160, 164–183, 248 Citizenship Law, 165 Iraqi Christians, xxii, 169, 173 Iraqi constitution, xxii Iraqi Jews, xxii, 167 Iraqi War, xxi, xxii Islamic State of Iraq and Syria (ISIS), 159, 179

https://doi.org/10.1017/9781108380072.014 Published online by Cambridge University Press

Index Islamic State of Iraq and the Levant (ISIL), 159, 167–168, 174, 176, 182 itorero, xviii, 97 Jammu and Kashmir, 10 judicial reforms, 66 jus sanguinis, 12 jus soli, 12 just order, xxv Kant, Immanuel, 13, 206 Kenya, 68–69, 206, 272, 275, 277–279, 281 Kigali, 84–85, 88–91, 93, 99 Kurdish people, xxii, 158, 168, 172, 174–175, 177, 179–180 Kurdistan Regional Government [Iraq] (KRG), 177, 179 land restitution, 116–118, 122, 124, 128, 131, 278 Land Restitution Unit–Unidad de Restitucio´n de Tierras (URT), 117, 119, 130 land rights, xxv, 108, 112, 120 Latin America, 5, 62, 206, 212, 215 Law 1448 (Victims’ Law), 108, 111, 113, 117–118, 120–125, 128–131, 131 Law No. 6458 on Foreigners and International Protection [Turkey] (LFIP), 248–249, 252, 257–264, 266–269 legal assessment, 42 legal authority, xxii legal certainty, 248–249, 256–257, 259–261, 266–270 legal judgment, xvi, 19, 252, 256, 286 legal sanctions, 35 legality, xxvi, 259, 268 legislative reforms, 248 Lessons Learnt and Reconciliation Commission [Sri Lanka] (LLRC), xxiv, 135, 139, 142–154, 224–225, 230 liability, 25, 46, 48, 70, 230 liberation, xxv, 159, 209, 211, 230, 232, 234, 236, 239 Liberation Tigers of Tamil Eelam–Tamil Elam Vitutalaip Pulikal (LTTE), viii, xxiii, xxiv, 141–144, 149, 152–153, 222–225, 229–230, 232–236, 238, 238, 240–244 local customs, xx, 18, 62, 171, 231 Lord’s Resistance Army (LRA), xx, 73, 272, 275, 280–282 Lubanga Case, xx, 272, 285–286

297

Mandeans, xxii, 182 marginalization, 57, 174–175, 198, 211, 277 mass atrocities, 5, 42, 57–58, 66, 72, 74, 85, 136, 225, 272, 278 mass displacement, xvii, xxi, 65, 70, 75, 84, 88, 91, 160, 281, 288, 290 material losses, 34, 169 mato oput, xx, 276 Mau Mau, xx, 272, 275, 278–279 mechanisms of justice, xv memories of violence, xvii micro-insecurities, 14 Middle East, xxi, 5, 52, 76, 137, 164 Middle Eastern Christian, xxii, 12 militarization, 151, 153, 199, 208, 215, 231, 235, 239 militia, 89–91, 93, 170, 172–173, 178–179, 201, 239, 241, 243, 276, 286 minimal justice, 20–21, 26, 30, 194 minorities, xxi, xxii, 2, 36, 115, 158, 174–175, 179–180, 185, 223 mohajirs, 11, 22, 26 moral consciousness, xix multi-sectorial approach, 1 Muslim, 9–13, 15–16, 19, 63, 139–140, 240, 281 Muslim League, 9–10 Myanmar (Burma), 12, 22–23, 27–28, 52 narratives of justice, 200 national identity, xviii, xix national independence, 12 national narratives, 135, 137, 144 National Revolutionary Movement for Development [Rwanda] (NRMD), 89 National Unity and Reconciliation Commission [Rwanda] (NURC), 97 nationalism, 25, 138, 223, 229, 232, 240 nation-building, xix, xxiv, 2, 22, 24, 135, 197, 228 nationhood, xvii, 1, 24 negative liberties, xx negative peace, 228, 289 neocolonial, 63–64 Nepal, 21, 26, 33, 241 New Mexico, 193 non-formal systems, 274 non-governmental organization (NGO), 3, 62–63, 214, 275, 277, 284 non-judicial proceedings, 83 non-refoulement, 26 normative goals, xix North America, 5

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298

Index

North Uganda Media Club (NUMEC), 284 North–South divide, 59 Office for the Coordination of Humanitarian Affairs [UN] (OCHA), 159 Ottoman Armenians, 35–36 Pakistan, 10–12, 22–24, 26, 52, 258 paramilitary forces, 14, 84, 110, 117, 131, 170–171 partition, 11, 17–18, 22–25, 29 partition refugees, 22–25, 29–30 partitioned communities, 175 patriarchy, xxiv, 209, 232, 235–236, 238–242 peace-building, xx, 97, 120, 225, 276–277, 283, 288, 290 peacekeeping, 200 persecuted minorities, 23 political agency, 222, 224, 231, 237–238, 241 political injustices, 228 political order, xx, 4 political power, xx, 10, 42, 138, 172 political violence, 1–4, 33–34, 53, 61, 67, 70–71, 223, 237–238, 240, 242–243, 273 politics of justice, 33, 35, 41, 43 positive law, 38, 41, 44, 47–48 post-colonial state, xvi, 2–3, 29, 61 post-conflict societies, xxv, xxvi, 2, 53–54, 57, 60, 66, 83, 85–86, 92, 110, 120, 132, 136, 158, 160, 163–164, 166, 168, 182, 223, 273, 282, 289 post-electoral violence, 275, 278 post-partition, 13, 20, 24 post-war criminal courts, xvi poverty, 92, 115, 151, 173, 205, 207, 278 principle of legality, 257 private property, 17, 20–21 Property Claims Commission [Iraq] (PCC), 181 protection of refugees, 53 protracted armed conflicts, 223 public policy, xxv, 108, 120 punishment of perpetrators, 34, 272, 283 Punjab, 10–11, 24 quasi-judicial proceedings, xviii race, 2, 94, 141, 162, 212, 283 racism, 15, 20 rape, 10, 27, 62, 73, 85, 91, 93, 149, 193–194, 196–200, 202–207, 209–210, 213, 215–217, 221, 238 rape as a weapon of war, 205, 207

reconciliation, xv, xvii, xviii, xix, xx, xxi, xxiii, 3–5, 14, 20–21, 41, 49, 54, 57, 61, 66, 73–74, 83, 85–88, 96–98, 100–101, 145, 158–160, 165–166, 174, 176, 224–230, 240, 242–245, 247, 273, 276, 278, 281, 284–285 reconstruction, xviii, xix, xxiii, 24, 86, 97, 158, 165–166, 179–180, 224, 226, 229, 235, 288–289 rectificatory justice, 274, 284 refugee camps, 83, 89–91, 123, 196, 199–200, 276 Refugee Convention, 2, 26 refugee flows, 13, 25, 219, 248 refugee influx, 9, 247–248, 269 refugee law, 52, 74, 86, 202, 218–219, 261–262, 275, 281 refugee protection, 13–14, 26, 29, 218 Refugee Status Determination (RSD), 253 refugeehood, 2 regional perspective, xxiii Registry of Forcibly Dispossessed and Abandoned Lands–Registro de Tierras Despojadas y Abandonadas Forzosamente (RTDAF), 125, 130 regulatory codes, xxiii rehabilitation, xix, 9, 22–24, 29, 83, 92, 95, 162, 224, 236 reintegration, xix, xxv, 83, 101, 158, 163, 166, 169–170, 172, 174, 181, 223, 236, 241–243, 281, 285, 288 remembering, 1, 19, 33, 36–37, 39 remembrance of violence, 1 reparations, xvii, xx, xxv, xxvi, 53, 72, 84, 112, 117, 165, 229, 273–275, 278, 285–286 repatriation, 90, 158, 160, 162–163, 166, 169, 172, 174–175, 177–178, 180–182 resettlement, xxiv, 3–4, 12, 22–24, 28, 30, 123, 135, 143–144, 153–154, 158, 160–163, 166, 174, 179–180, 200, 226, 229, 289–290 residence permits, 259, 265 restitutio in integrum, 33 restoration of the rights of the displaced, xvii, 1 restorative justice, xix, 2, 4, 34, 38–40, 45–49, 71, 74, 97, 102, 116, 282, 284, 289 retributive justice, xvi, 34, 44, 47, 71, 96, 282 retrospective responsibility, 13 right of return, 4, 65, 158–162, 164, 166, 169, 173, 178, 180–182 right to life, 15, 23 rights of the displaced, xxiii, 1, 116 rights of victims, 120

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Index risk assessment, 251, 253 rule of law, xvi, xxi, 46, 178, 214, 216, 227, 256–257, 268, 277 Russia, xxii, 209, 257–258, 263 Rwanda, xviii, 53, 84–85, 88–103, 206, 272, 274–277, 279, 286–287 Rwandan Armed Forces (FAR), 89 Rwandan Genocide, xviii, 84–85, 89, 287 Rwandan Patriotic Front (RPF), 89 Rwandan Patriotic Front (RPF), 89–90, 96, 103, 286 sectarian violence, xxi, 166, 172, 174, 176–177, 181–182 self-determination, xxiii, xxiv, xxv, 59 service providers, xxv, 108 sexual and gender-based violence (SGBV), 193, 202, 206, 208 sexual violence, 193–203, 205–206, 208–209, 211, 214–215, 217–218, 241, 285 Shabacks, xxii, 182 Shia, xxii, 159, 174 short-term refugee protection, 53–54, 151 silence of categories, xviii simulation models, xxv, 108, 112, 121–122, 131–132 Sinhalese, xxiii, 139–140, 144, 150, 152, 223, 225, 229, 234, 240, 243 social disenfranchisement, 146 social engineering, 102 social peace, 54 Southeast Asia, 52, 61 sovereignty, xxiii, 2, 10, 18, 47, 117, 143, 243, 267, 277 Sri Lanka, viii, xxiii, xxiv, xxv, 2, 12, 22–24, 27–28, 52, 76, 135, 139–146, 149–151, 153–154, 222–236, 238, 240–242, 244 state conduct, 225 state criminality, xxvi, 52–55, 60–61, 64–65, 71, 74, 76 state fragility, viii, xxi, 158 state of emergency, 266, 268 state-induced displacements, 2 state-led inquiry, 143 statelessness, 2–3, 12, 17, 20, 178, 258 subsidiary protection status, 260–263, 268–269 Sudan, 27–28, 62–64, 66, 68–71, 73, 73, 83, 92, 200–201, 280, 284 Sunni, xxii, 159, 172, 175–176 survivors, 12, 37, 84, 92, 138, 141, 146, 153–154, 282

299

Syria, xxii, 52, 159, 161, 176–178, 248, 252, 258, 263, 270 Syrian Kurds, xxii, 177 Tamil, xviii, xxiv, xxv, 23–24, 135, 139–144, 146, 150–154, 222–225, 228–233, 235–236, 238–241, 243–244 Tamil Nadu, 24 Tamil nationalism, xxiv, xxv, 236, 240, 243 Tanzania, 85, 90, 93, 206 temporary protection status, 252, 261, 263, 269 terra incognita, 17 terrorism, 145–146, 150, 173, 175–176, 222, 226, 228, 236, 240, 266, 278 testimony, xxiv, 95, 135, 138–139, 143, 145–151, 154, 197, 206, 211 Third World Approaches to International Law (TWAIL), 58–60 Tibet, 22–24, 26, 28, 52 torture of civilians, 14, 27, 55, 152, 169, 172, 196–197, 200 traditional court system, 98 transitional justice and displacement, xv, xxvi, 54, 87 transitional justice initiatives, xxv, 50, 86, 97, 108, 112, 116–117, 119–120, 132, 174, 181, 205, 211–212, 215, 228–229, 281, 284 transitional justice practitioners, 84, 101 transitional justice remedies, xxv, 74, 87, 108 transnational networks, 57 transnational norms, xxi trauma, 4, 24, 33, 50, 91, 97, 151, 202, 238–239, 242 truth and reconciliation, xvi, xix, xx, 65, 83, 98, 165 truth commissions, 116, 135, 137–138, 144, 154, 226, 242 truth-telling, 74, 136, 138, 228–229, 242, 285 Turkey, xxi, xxii, xxiii, 2, 41, 43, 50, 52, 161, 167, 178, 247–256, 259–264, 268 Asia Minor, 37 Turkish Constitution, 256, 268 Turkmen, xxii, 158, 174, 179, 182, 253 Tutsis, xix, 89, 93, 206 Uganda, 2, 68, 73–74, 79, 83, 88–89, 92, 161, 206, 272, 274–277, 279–284 Government of Uganda (GoU), 73 Uganda People’s Defence Force (UPDF), 283 Ugandan High Court, 272, 281 Umaganda, xviii, 97

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300

Index

Unidad Administrativa Especial de Gestio´n de Restitucio´n de Tierras Despojadas (UAEGRD), 128 Union des Patriotes Congolaises (UPC), 286 United Nations (UN), xviii, 12, 35, 42, 45, 53, 55, 65, 67, 70, 86–87, 90, 92, 94, 97–99, 101, 109, 141, 158–160, 162, 164–165, 168–169, 171–172, 180, 247, 251 United Nations Assistance Mission for Iraq (UNAMI), 169, 172 United Nations Committee on the Rights of the Child (UNCRC), 99 United Nations High Commissioner for Human Rights (UNHCHR), 162 United Nations High Commissioner for Refugees (UNHCR), 3, 12, 26–29, 85, 90, 109, 159, 162, 168, 172–173, 178–179, 181, 247–248, 251, 253–255, 262, 265, 267 United Nations International Children’s Emergency Fund (UNICEF), 85 United Nations Office of the High Commissioner for Human Rights (UNHCHR), 163 United Nations Relief and Works Agency for Palestine Refugees in the Near East, 12 United Nations Security Council (UNSC), 64–65, 164, 169 United Nations International Children’s Emergency Fund (UNICEF), 85, 91 United Nations Security Council (UNSC), 93–94, 169 United States (US)

Commission on International Religious Freedom, 179 United States Agency for International Development (USAID), 195 United States Department of State (USDS), 160, 165, 172–173, 180–181 universal jurisdiction, 55, 64–66, 70, 75 vernacular justice, xx, 273, 276–277, 285, 288 victim-centric, 135 victimization, 33–35, 37–40, 44, 46–48, 50, 237, 276 victims of forced displacement, xxv, 76, 108, 111–112, 115–116, 119, 122–123, 125, 128–131 violence against women, 194, 196, 199, 207–209, 213 war crimes, 35, 55, 62, 66–67, 72, 75, 94, 96, 143, 153, 197, 244, 272, 281 war survivors, xxiv, 135 West Bengal State Archives (WBS), 9 Western institutional perspective, xvi witness, 55, 88, 90–91, 93, 96, 144–151, 153–154, 194, 199, 210–211, 234 women combatants, xxiv, 233, 235, 243 Women in Conflict Zones Network (WCZNet), 200 World War II, xvi, 23, 35, 42–43, 45, 90, 160–161, 202, 209 Yazidis, xxii, 158, 174, 177, 179, 182

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