Forced Migration, Reconciliation, and Justice 9780773582835

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Acknowledgments

FORCED MIG RATION , RECONCILIATION , AND JUSTICE

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Forced Migration, Reconciliation, and Justice

Edited by MEGAN BRADLEY

McGill-Queen’s University Press Montreal & Kingston • London • Chicago

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© McGill-Queen’s University Press 2015 isbn 978-0-7735-4516-8 (cloth) isbn 978-0-7735-4517-5 (paper) isbn 978-0-7735-8283-5 (epdf) isbn 978-0-7735-8285-9 (epub) Legal deposit third quarter 2015 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free. This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. Funding has also been received from St Paul University. McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Canada Book Fund for our publishing activities.

Library and Archives Canada Cataloguing in Publication Forced migration, reconciliation, and justice / edited by Megan Bradley. Includes bibliographical references and index. Issued in print and electronic formats. isbn 978-0-7735-4516-8 (bound). – isbn 978-0-7735-4517-5 (paperback). – isbn 978-0-7735-8283-5 (epdf). – isbn 978-0-7735-8285-9 (epub) 1. Forced migration. 2. Reconciliation. 3. Social justice. I. Bradley, Megan, 1980–, editor hv640.f67 2015

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c2015-902243-6 c2015-902244-4

This book was typeset by True to Type in 10.5/13 Sabon.

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Contents

Acknowledgments ix Abbreviations

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Foreword: Advancing Justice and Reconciliation in Communities Affected by Displacement xv Chaloka Beyani Introduction: Forced Migration, Transitional Justice, and Reconciliation: Links, Limits, and Possibilities 3 Megan Bradley

part one displacement, justice, and reconciliation: conceptual and policy links 1 Refugees, Peacebuilding, and Reconciliation: Lessons from Policy, Practice, and Research 29 James Milner 2 Reconciliation and Reintegration: Transitional Justice and the Resolution of Displacement 47 Roger Duthie 3 Property Rights and Public Interests: Restitution, Transitional Justice, and Post-conflict Reconciliation 68 Anneke Smit

part two reconciliation and exile: diaspora and host community experiences 4 Negotiating Place: Interpersonal Reconciliation and Emplacement 87 Mateja Celestina

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5 The Forgotten Ones: Vietnamese Catholics in Cambodia and Their Quest for Reconciliation 106 Thien-Huong T. Ninh 6 A Modest Reconciliation: Coming to Terms with Conflicted Stories through Oral History, Dialogue, and Playback Theatre in Montreal’s Rwandan Canadian Community 123 Lisa Ndejuru

part three justice, reconciliation, and resolving displacement: in theory and in practice 7 Truth-Telling, Internal Displacement, and the Peace Process in Colombia 147 Roberto Vidal López 8 Return and Reintegration in Divided Societies: The Case of Bosnia and Herzegovina 168 Huma Haider 9 Resolving Internal Displacement in Turkey: The Need for Reconciliation 195 Ayşe Betül Çelik 10 Can Reconciliation Mechanisms in Post-conflict Settings Further Divide Communities? The Case of Lebanon 223 Nancy Maroun 11 The Timor-Leste Commission for Reception, Truth, and Reconciliation and the 2006 Displacement Crisis in Timor-Leste: Reflections on Truth-Telling, Dialogue, and Durable Solutions 247 Luiz Vieira 12 The Challenge of Prosecuting Forced Displacement at the International Criminal Court: The Case of Kenya 276 Paige Morrow and Jennifer Winstanley 13 The Palestinian Refugee Issue: Intangible Needs and Moral Acknowledgment 298 Michael Molloy, John Bell, Nicole Waintraub, and Ian B. Anderson 14 Refugee Entitlement and the Passing of Time: Waldron’s Supersession Thesis and the Palestinian Refugee Case Mick Dumper 323

Contents

Conclusion: Implications for Research, Policy, and Practice at the Intersection of Forced Migration, Transitional Justice, and Reconciliation 345 Megan Bradley References 359 Contributors 409 Index 415

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Acknowledgments

While in Guatemala City several years ago, I had the opportunity to visit the Guatemalan Forensic Anthropology Foundation, a non-governmental organization that works to combat impunity, uphold the right to truth, and dignify victims by investigating violent deaths that took place during Guatemala’s thirty-six-year civil war. During my visit, a young scientist was analyzing the remains of two indigenous children – sisters shot in the head during one of the many massacres committed by governmentbacked forces. As she pointed out, the girls were so young their adult teeth had not yet come in. Their parents survived the attack, quickly buried their children, and ran. When the war ended and they returned to their village years later, they arranged for their daughters to be exhumed so that their murders could be investigated and formally counted among the thousands carried out during the war. Pervasive insecurity and dire humanitarian needs, from lack of shelter to inadequate food and water, often characterize displacement crises. In such contexts, questions of justice and reconciliation may seem almost hopelessly abstract. Yet, as I have explored the connections between these issues, I have often recalled these Guatemalan parents who, in spite of the difficulties they doubtlessly faced in returning to their village and reestablishing their lives, prioritized a profound act of truth-telling. Their choice attests to the significance the pursuit of justice and reconciliation – however contested and incomplete – may hold for those forced from their homes. Fittingly, the image on the cover of this book shows another Guatemalan refugee, named Domingo, holding a picture of his father, while he observes the exhumation of his father’s remains in 2000, eighteen years after his father was killed in a massacre in Quiché in 1982.

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The contributors to this volume explore some of the myriad ways in which forced migration, reconciliation, and justice issues are intertwined on the levels of theory, law, policy, and practice and in the everyday lives of displaced persons and diaspora communities. This book is the product of collaboration between researchers and practitioners from different disciplines, professions, and regions. This conversation would not have happened without the support of a wide range of institutions, colleagues, and friends – not least the contributors to this volume, whose patience I have greatly appreciated. Many of the chapters were presented at the Conference on Displacement and Reconciliation convened at Saint Paul University in Ottawa on 9–10 June 2011. I would like to thank the donors who supported this event and the participants and commentators whose questions and reflections enriched these written contributions, as well as Roula El-Rifai, Claire Thompson, Renée Massicotte, Priya Saibel, Héloïse Ruaudel, Amy Copley, Aviya McGuire, Sara Miller, Blair Peruniak, Dayanita Ramesh, Maia Rotman, Ana Vucetic, Anna Wherry, and Courtney Wittekind. As this collection came to fruition, I had the good fortune to work with three different institutions: Saint Paul University in Ottawa, the Brookings Institution in Washington, dc, and McGill University in Montreal. At Saint Paul, I would like to thank my colleagues in the Conflict Studies Program, and Mohamed Kouachi and Claire Bélanger in the Research Services office, which generously provided a grant in support of this endeavour. This book has been published with the help of a grant from the Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada (sshrc). I would like to express my appreciation for this award, and to sshrc for supporting some of my related research. At the Brookings-lse Project on Internal Displacement, I am particularly grateful to Beth Ferris, Roberta Cohen, and Leah Denman for their support and encouragement, and to un Special Rapporteur on the Human Rights of Internally Displaced Persons Chaloka Beyani, who kindly provided a foreword to this collection. Thanks are also due to Ted Piccone and Mike O’Hanlon, and especially to Jeremy Shapiro and Natan Sachs for their moral support and comic relief. This collection was informed by my involvement in a prior joint project between the Brookings Institution and the International Center for Transitional Justice on the relationship between displacement and transitional justice. Roger Duthie played a pivotal role in that project, and I am grateful for his active contributions to this continued conversation.

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Although I only recently arrived at McGill, I am already in debt to many colleagues in the Political Science Department and at the Institute for the Study of International Development for their generous support and advice. From start to finish, it was a pleasure working with McGill-Queen’s University Press. I am grateful to Christina Clark-Kazak for introducing me to Jonathan Crago, and to Jonathan and his team for their flexibility, dedication, and insight. My sincere appreciation is also due to the two anonymous reviewers for their thoughtful and helpful responses to this work. It is my great fortune to have so many people to thank. As ever, my greatest thanks must go to my family, and especially to my husband Tim, for their tireless love and support.

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Abbreviations

BiH

cavr codhes coe conpes crp cso farc hlp hrc hrw iasc icc icg icrc ictj icty ictr idea idmc idp khrc

Bosnia and Herzegovina Comissão de Acolhimento, Verdade e Reconciliação de Timor-Leste (Commission for reception, truth, and reconciliation of Timor-Leste) Consultoría para los Derechos Humanos y el Desplazamiento (Consultancy for human rights and displacement) (Colombia) Council of Europe National Council on Economic and Social Policy (Colombia) Community reconciliation process Civil society organization Revolutionary Armed Forces of Colombia Housing, land, and property United Nations Human Rights Council Human Rights Watch Inter-agency Standing Committee International Criminal Court International Crisis Group International Committee of the Red Cross International Center for Transitional Justice International Criminal Tribunal for the Former Yugoslavia International Criminal Tribunal for Rwanda International Institute of Democracy and Electoral Assistance Internal Displacement Monitoring Centre Internally displaced person Kenya Human Rights Commission

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lhe mep mod ngo nsu odm ohchr

Abbreviations

Living Histories Ensemble (Canada) Missions Étrangères de Paris (Foreign missions of Paris) Ministry of Displaced (Lebanon) Non-governmental organization Negotiations Support Unit (Palestine) Orange Democratic Movement (Kenya) United Nations Office of the High Commissioner for Human Rights opts Occupied Palestinian territories osce Organization for Security and Cooperation in Europe osts/dpsm Operational Solutions and Transitions Section/Division of Programme Support and Management pbc United Nations Peacebuilding Commission pkk Partiya Karkerên Kurdistan (Kurdistan workers’ party) plip Property Law Implementation Plan (Bosnia and Herzegovina) pnu Party of National Unity (Kenya) rwg Multilateral Refugee Working Group ssr Security sector reform tesev Turkish Economic and Social Studies Foundation tohav Foundation for Society and Legal Studies (Turkey) un United Nations undp United Nations Development Programme unga United Nations General Assembly unhcr Office of the United Nations High Commissioner for Refugees un ocha United Nations Office for the Coordination for Humanitarian Affairs unrwa United Nations Relief and Works Agency for Palestine Refugees in the Near East unsg Secretary-General of the United Nations untaet United Nations Transitional Administration in East Timor usaid United States Agency for International Development usip United States Institute of Peace

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FOREWORD

Advancing Justice and Reconciliation in Communities Affected by Displacement

In my travels as the United Nations special rapporteur on the human rights of internally displaced persons (idps), I have heard from displaced persons around the world struggling to obtain a measure of justice for the violations they have suffered, and to achieve some degree of reconciliation with their personal experiences, their neighbours, and state institutions. In Kenya and Côte d’Ivoire, for example, I observed the participation of displaced people in truth commissions, where they shared their experiences of flight and the challenge of reclaiming old or building new homes. On all my missions and country visits as special rapporteur, a constant refrain in my conversations with displaced communities is the question of land: will the displaced be able to repossess the homes they lost? How will this process unfold? What should happen in cases of protracted displacement when other families – often themselves displaced – have long been living on land claimed by others? These are among the questions and challenges at the heart of this volume, and they have significant implications for solutions to displacement, as well as broader reconciliation and conflict prevention efforts. Important as they are, transitional justice and reconciliation processes were rarely attuned to refugees’ and idps’ concerns until relatively recently. We have seen important progress on this front, from the creation of restitution commissions and compensation programs involving idps and refugees to the integration of provisions on displaced persons’ remedial rights into peace agreements and the development of jurisprudence on arbitrary displacement as a crime. Yet there is still a lot that we do not fully understand about the potential role of transitional justice and reconciliation initiatives in displacement situations, and about how to maximize these processes’ positive contributions to advancing refugees’ and idps’

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rights and well-being. A ground-breaking multi-year project on displacement and transitional justice undertaken by the Brookings-lse Project on Internal Displacement and the International Center for Transitional Justice, concluded in 2012, made a critical contribution to addressing this gap. This collection builds on that project, in particular by incorporating a focus on reconciliation and by analyzing experiences in a range of countries that have not always been in the spotlight. This volume brings together scholars and practitioners from the global North and South, including many who are from or have lived in countries grappling with displacement, and who work or have worked with organizations including the Office of the United Nations High Commissioner for Refugees, the International Organization for Migration, the Organization for Security and Cooperation in Europe, the Canadian Department of Foreign Affairs, Trade and Development, Bosnia’s War Crimes Chamber, the Kenya National Commission on Human Rights, and a range of non-governmental organizations. With such a diverse range of contributors, this volume brings new voices into the debate. At the same time, it advances our understanding of the interlinked practical and theoretical questions raised by the engagement of displaced populations in transitional justice and reconciliation processes, and the complex task of attempting to ensure accountability for forced migration. Although it is only in recent memory that policymakers, practitioners, and researchers have turned sustained attention to the links between forced migration, redress, and reconciliation, the contributors to this volume make clear that many lessons and insights have already emerged from these experiences. I look forward to seeing them applied to the pursuit of greater justice, accountability, and ultimately reconciliation in communities affected by conflict and displacement.

Chaloka Beyani United Nations Special Rapporteur on the Human Rights of Internally Displaced Persons

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INTRODUCTION

Forced Migration, Transitional Justice, and Reconciliation: Links, Limits, and Possibilities MEGAN BRADLEY

In the early 1990s, genocides in Rwanda and the former Yugoslavia sparked massive forced migration crises. The push to resolve these crises brought unprecedented attention to the links between displacement, justice, and reconciliation, as it was clear that the millions who were uprooted would not be able to return without some attempt to acknowledge and account for the atrocities that caused their flight, and the grievances that continued to divide their communities. Efforts to enable a measure of justice and reconciliation, however limited, for displaced persons and other survivors of the violence ranged from commemorations and grassroots dialogue initiatives to international tribunals, domestic trials, the application of “customary” accountability mechanisms, and property restitution programs (on these and related initiatives, see, e.g., Clark 2010; Human Rights Watch 2012; Chayes and Minow 2003; Jones 2003; Williams 2006). Although many of these initiatives have now officially concluded, the experiences of Rwanda and the former Yugoslavia still reverberate and the struggle for a degree of justice and reconciliation in communities emerging from conflict and displacement continues. On the eighteenth anniversary of the Srebrenica massacre in July 2013, US Secretary of State John Kerry (2013) remarked, “As we know from history, truth and reconciliation are essential to moving beyond the past towards a better tomorrow.” Kerry went on to “applaud those who continue to seek justice for the victims and work to ensure that all citizens have the right to return and to live peacefully in their pre-war homes.” The lessons of history notwithstanding, the vast majority of refugees and internally displaced persons

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(idps) around the world have not been able to participate in or benefit directly from transitional justice mechanisms intended to redress human rights violations. Reconciliation remains an elusive goal in many communities straining to manage the effects of displacement. But with more than fifty-one million people currently displaced by war and violence, exceeding the previous peak recorded in 1994, it is unsurprising that there is once again growing interest in the relevance of justice and reconciliation processes for refugees and idps (unhcr 2014b). Manifested in the creation of laws, policies, agreements, institutions, and programs that incorporate – to varying degrees – displaced persons’ specific justice and reconciliation concerns, and the integration of refugees and idps into broader transitional justice and reconciliation initiatives, this interest is driven in part by the looming challenge of redressing and resolving high-profile crises such as the Syrian exodus and the upheavals in Iraq. Yet it also reflects the gradual maturation of transitional justice as a field of research and practice; as the field has developed, awareness of power dynamics and patterns of exclusion has grown, yielding important analyses of, for example, the gendered implications of transitional justice and reconciliation processes (see, e.g., Rubio-Marín 2011; Rimmer 2010a, 2010c). Critically minded scholars and practitioners have similarly recognized the historical tendency for displaced persons to be left on the margins of official transitional justice and reconciliation processes, and have worked to build awareness among policymakers, practitioners, and researchers of the value, in principle and in practice, of equitably engaging forced migrants in transitional justice processes and acknowledging and redressing arbitrary displacement as a violation in its own right.1 These initial bridge-building efforts underline that questions of reconciliation and justice touch all phases of displacement: persistent injustices and unresolved grievances are an important cause of forced migration, while unreconciled conflicts between displaced populations and host communities can result in local unrest and xenophobic violence, leading to further displacement. Confronting historical and ongoing injustices may be essential to resolving clashes that result in protracted displacement situations. In the aftermath of conflict, effectively responding to forced migrants’ justice claims and supporting reconciliation between displaced persons, their former neighbours, and their states can be key factors affecting the success of return and (re)integration processes involving millions of refugees and idps. From Mali and Côte d’Ivoire to Myanmar and Kashmir, diverse actors including governments, United Nations agencies, non-governmental

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agencies (ngos), religious institutions, and displaced persons themselves are calling attention to the links between displacement, justice, and reconciliation, and in some cases are taking steps, however tentatively, to address the complex intersection of these concerns.2 This collection aims to better understand and inform these processes. The contributors draw on a breadth of professional experiences and disciplinary perspectives (including political science, law, anthropology, sociology, history, philosophy, and social work) to critically examine the relationship between reconciliation, justice, and displacement, in theory and in practice.3 Ranging from detailed case studies to macro-level analyses of trends, interconnections, and theoretical dilemmas, the chapters explore the challenges displacement situations present for justice and reconciliation processes, and how examination of the concepts of justice and reconciliation can enhance understanding of the nature and experience of displacement, and responses to it. In this way, the collection builds on a growing body of work that seeks to bring the previously largely isolated fields of transitional justice and forced migration into dialogue with one another (see, e.g., Duthie 2011, 2012a; Rimmer 2010a, 2010b, 2010c; Hovil 2012a; Bradley 2013). The remedies that are arguably most directly relevant to displacement, property restitution, and compensation for lost homes and lands have received the lion’s share of attention in previous examinations of refugees’ and idps’ remedial rights (see, e.g., Leckie 2003, 2007; Smit 2012; Fay and James 2009; International Organization for Migration 2008; Brynen and El-Rifai 2013). While recognizing the importance of efforts to address displaced persons’ physical dispossession, and exploring some of the complex implications this may have for reconciliation (Smit, chapter 3), the contributors to this volume seek to advance the debate by focusing more concertedly on dimensions of the issue that have attracted less attention, such as the contested role of trials and truth-telling in upholding accountability for displacement, and the contributions religious practices, oral history, theatre, and everyday social interactions may make to supporting different forms of reconciliation in communities affected by displacement and the abuses that fuel it. By including the perspectives of traditional academics as well as researcher-practitioners who have worked at the interface of forced migration, reconciliation, and accountability issues as lawyers, diplomats, therapists, community organizers, aid workers, and advocates, this volume delves into the complexities of promoting or applying abstract conceptualizations of justice and reconciliation in communities shaped by experiences of exile, and draws out insights from past practice that may enhance

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scholarship on these issues while also informing efforts to redress and resolve displacement crises. This dialogue is enriched in particular by contributions from leading scholars and practitioners from regions and communities directly affected by forced migration. In this introduction, I lay the ground for this work by highlighting some of the key themes that emerge in the following chapters. These include: (1) the salience of analyses, interactions, and interventions that span multiple levels, from the personal and interpersonal to the communal, national, and international; (2) the need to better engage, understand, and account for host and diaspora communities’ experiences and concerns; (3) the complex implications of justice and reconciliation processes for peacebuilding and the resolution of displacement; and (4) the often profound limitations of both formal and informal responses to displaced persons’ justice and reconciliation concerns. Before exploring these themes, the contested concepts at the heart of this collection, and the connections between them, demand some discussion. CO NC E P T UA L I ZI NG A N D C ON N E C TI N G D I S P L AC E M E N T , T R A NS I TI ONA L J U STI C E , A N D R E C ON C I L I ATI ON

Like most important ideas, from rights and democracy to peace and security, the concepts at the heart of this work – forced migration, justice, and reconciliation – elude precise definition. The contributors to this volume embrace varied understandings of these concepts, showing the merits of and tensions between different interpretations and the ways in which consideration of the particular difficulties that displaced populations often face can challenge and enrich theoretical and practical understandings of justice and reconciliation. These difficulties include the physical dispersion of displaced populations, which presents not only practical obstacles in terms of outreach and participation, but also normative questions about the appropriate scope of justice and reconciliation processes; political alienation, which results in contestation of displaced persons’ membership claims and their right to have their grievances addressed; and protracted dispossession and subsequent occupation of displaced persons’ homes and lands. Attempts to redress injustices, particularly those that persist across generations, may themselves engender new and serious injustices (Dumper, chapter 14; Waldron 1992). Efforts to understand and advance justice and reconciliation in contexts affected by large-scale forced migration are regularly confronted with this issue, as displacement situations are becoming increasingly pro-

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tracted, with the average refugee situation now lasting almost twenty years (Milner and Loescher 2011, 3). The displaced populations addressed in this collection include refugees who have fled their states of origin and idps uprooted within their own countries.4 In addition, contributors examine the concerns, perspectives, and experiences of displacement-affected populations, including former refugees and idps and their families, the members of host and return communities, and the secondary occupants of displaced persons’ lost homes and lands. This broad focus reflects the fact that the injustices, tensions, and conflicts associated with displacement touch not only refugees and idps themselves, but also a much wider range of actors. The potential links between transitional justice, reconciliation, and durable solutions to displacement are of particular interest to many practitioners, policymakers, and researchers, including various contributors to this book. The traditional trio of durable solutions for refugees include return to the country of origin, local integration in the country of asylum, and resettlement to a third country. For idps, durable solutions encompass return to and reintegration in communities of origin, local integration in host communities, and relocation elsewhere in the country. According to the technical definition offered in the Inter-agency Standing Committee (iasc) Framework on Durable Solutions for Internally Displaced Persons, a durable solution has been obtained when the displaced “no longer have any specific assistance or protection needs that are linked to their displacement and can enjoy their human rights without discrimination on account of their displacement” (iasc 2010, A-1). Although governments and un agencies often portray return as the “preferred” solution to displacement, many researchers and advocates stress the importance of enabling refugees and idps to choose the most appropriate solution for their circumstances (Chimni 1993; Bradley 2013). Equally, while the bureaucratic discourse that has emerged around the resolution of displacement often implies that upstanding humanitarian and development organizations working in cooperation with responsible governments provide refugees and idps with permanent solutions to displacement, this rhetoric distorts these players’ sometimes ambivalent roles and refugees’ and idps’ active roles in this process. “Solutions” to displacement may not be permanent in that many former refugees and idps will choose to remain “on the move” between multiple physical locations (Long 2010, 2014), and even in best case scenarios will continue to wrestle with the conflicts and injustices they have experienced long after homes have been reconstructed and official transitional justice processes concluded. Indeed, as many of the contributors to this volume

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demonstrate, the very notion of a durable solution to displacement is a construct that is in many cases alien to individuals’ and communities’ experiences of forced migration. Even for those deeply engaged in the process of making new homes or reclaiming lost ones, displacement may not be “solved” so much as an ingrained but evolving part of personal and family narratives that continues to shape outlooks and prospects over generations.5 Beyond myriad academic perspectives on the nature of justice, conceptions of what justice might look like in the aftermath of violence and displacement vary within and between the millions of individuals and communities that forced migration directly and indirectly affect. As Gerald Gahima, Rwanda’s former attorney general, suggests, perhaps what can be achieved in societies rent by genocide, conflict, and exile “is not justice at all ... Maybe we should think of another word for it” (Neuffer 2002). While cognizant of this diversity in personal, communal, and theoretical conceptions of justice, many of the contributors to this volume are concerned with a particular dimension of justice: the notion of transitional justice. Generally speaking, transitional justice: Refers to a set of measures that can be implemented to redress the legacies of massive human rights abuses that occur during armed conflict and under authoritarian regimes, where “redressing the legacies” means, primarily, giving force to human rights norms that were systematically violated. The different measures that together make up a holistic approach to transitional justice seek to provide recognition to victims, foster civic trust and promote possibilities for peace, reconciliation and democracy. They include criminal prosecutions of those most responsible for violations; reparations programs that distribute a mix of material and symbolic benefits to victims (including compensation and apologies); restitution programs that seek to return housing, land and property to those who were dispossessed; truth-telling initiatives that investigate and report on periods of past abuse; and justice-sensitive security system reform that seeks to transform the military, police and judiciary responsible for past violations. (Duthie 2011, 243) In addition to these transitional justice measures, enabling displaced persons to return to their homes or countries of origin may also serve as a form of redress, as envisioned in the 2005 un Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of

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International Humanitarian Law (un Reparations Principles) (un General Assembly 2005; Bradley 2013).6 The assumption that reconciliation naturally follows from transitional justice processes has been roundly criticized, with some suggesting that “we have focused entirely too much on notions of closure and reconciliation,” expending considerable money, time, and effort on “buzzwords that have no consistent definition or conceptual clarity and promoting mechanisms to achieve these obscure outcomes with little evidence that they make a difference” (Weinstein 2011, 3). The contributors to this volume define and egage with the concepts of (transitional) justice and reconciliation in a range of ways, emphasizing justice, reconciliation, or the relationship between these notions, depending on their particular aims. For example, some focus predominantly on criminal justice (Morrow and Winstanley, chapter 12) or the thorny theoretical questions that emerge when refugees’ justice claims persist, unresolved, across generations (Dumper, chapter 14). Others explore the consequences of particular formal transitional justice mechanisms for reconciliation prospects in displacementaffected communities (e.g., Çelik, chapter 9; Vieira, chapter 11). However, none take it for granted that transitional justice processes translate into reconciliation, or that transitional justice mechanisms are necessarily the best way to foster reconciliation. Indeed, as Celestina (chapter 4) and Ninh (chapter 5) suggest, “everyday” interactions such as work, gossip, and religious practices can also play important roles in advancing (or undermining) reconciliation at the interpersonal and community levels. Fundamentally, reconciliation may be understood as a process of “building relationships of trust and cohesion” on various levels, from the national and international to the individual, interpersonal, and communal (Quinn 2009, 5). Albeit broad, such a conceptualization of reconciliation brings into focus the spectrum of actions, processes, and outcomes that may be understood as aspects or elements of reconciliation, including non-violent coexistence; justice-seeking; acknowledgment, truth-telling, and apologies; re-establishing values and rights and entrenching them in law; deepening peaceful relationships between conflicted institutions, groups, and individuals; and creating a common vision of the future (Longman et al. 2004, 207; Oduro 2007; Weinstein 2011, 7; Bradley 2012a, 6). While non-violent coexistence may be understood as an element of “minimal” or “thin” reconciliation, at the other end of the spectrum “thicker” forms of reconciliation may entail in-depth, personal, and interpersonal processes of reflection, acknowledgment, and atonement.7 Although these various aspects of

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reconciliation may be interlinked, there is not necessarily a linear progression from thin to thicker reconciliation. Indeed, depending on the circumstances, some forms of reconciliation may be impossible and offensive to propose; in countries and communities grappling with the legacies of atrocities, respect for basic rights and peaceful coexistence may be a profound accomplishment. As Ndejuru (chapter 6) suggests, sometimes the most that can be hoped for is a “modest reconciliation” that enables peace without necessarily contemplating forgiveness or deeper forms of trust. Understood as a process, reconciliation is relevant to all stages of displacement, as the erosion or development of trusting and cohesive relationships shapes the need to take flight in the first place; the quality of the shelter refugees and idps are able to find; and their prospects for returning or building a new home elsewhere. Displacement situations provide an important reason to design transitional justice mechanisms so that, where possible, they contribute to at least a modest degree of trust and cohesion: if transitional justice interventions have little practical effect on reconciliation, particularly at the local level, or inadvertently undermine it, they will not effectively backstop efforts to resolve displacement. At the same time, persistent displacement may represent a peacebuilding challenge that undercuts the stability transitional justice processes often seek to promote.8 This disconnect was particularly evident in Bosnia, where unprecedented efforts to restore displaced persons’ properties did not enable refugees and idps to return to communities where they would be ethnic minorities. While some were able to sell their restituted property and use the funds to establish new homes elsewhere in the country, the disjuncture between property restitution, other transitional justice processes, and effective support for peaceful coexistence at the local level meant that many did not have the right in practice to freely choose a durable solution. For many, returning to their communities of origin was simply not a viable option (Haider, chapter 8; Toal and Dahlman 2011). In other cases, ill-conceived or poorly timed transitional justice and accountability efforts have derailed reconciliation and prolonged displacement, in effect perpetuating injustice. This was arguably the case in northern Uganda, where the International Criminal Court’s indictments against leaders of the Lord’s Resistance Army compromised attempts to end the conflict and in turn resolve the displacement crisis. To be sure, supporting the resolution of displacement is rarely an explicit goal of official transitional justice and reconciliation processes.9 However, given that large-scale displacement is a significant feature of

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almost all of the conflicts formal transitional justice and reconciliation processes seek to address, recognizing and making the most of the potential links between these processes is an important, if under-examined, element of successful peacebuilding. As Çelik (chapter 9) suggests, despite their inevitable “messiness,” examining the theoretical and practical connections between the concepts of displacement, transitional justice, and reconciliation can also enrich forced migration studies: Studying forced migration from a rights-based approach and putting reconciliation at the centre ... expands understandings of displacement beyond simply a humanitarian phenomenon. Approached from this perspective, displacement may be located in a wider political and historical context and linked to the inequalities and violations at its root. In other words, viewing displacement through the lens of rights-based approaches and reconciliation theories requires a nuanced understanding of the causes of the conflict; listening to different explanations of the conflict that led to displacement; and opening a channel for dialogue between these different approaches, as well as understanding the social and political context of forced migration and its aftermath. FO UR THE M ES AT THE C ROS S ROA D S OF FORC E D M I G R ATI ON , J U STI C E , A N D R E C ON C I L I ATI ON

The broad if still inconsistent trend that has emerged, particularly since the 1990s, linking displacement, transitional justice, and reconciliation processes is embodied in refugees’ and idps’ engagement as participants in transitional justice and reconciliation processes, and in the view that displacement itself is a violation that should be addressed as part of the push for accountability for human rights abuses. This trend is evident in developments such as the inclusion of displacement in truth commission mandates; the prosecution of arbitrary displacement as a crime in domestic and international courts; the establishment of numerous property restitution and compensation programs involving refugees and idps; and revived support for grassroots coexistence programs in communities divided by displacement and ethnic violence.10 Transitional justice actors’ increasing engagement with displacement issues may be critiqued as an expansion of a transitional justice “industry” overly prone to applying standard mechanisms to often dramatically different situations, with inadequate regard for local circumstances and customs (McConnachie 2012).

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Yet this trend is not simply driven from the top down. Displaced persons have often been eager to participate in transitional justice processes, particularly when they offer much-needed material benefits, and have also in some cases pushed for the establishment of formal transitional justice institutions and interventions (Young and Park 2009). In Colombia, for example, idp organizations have played leading roles in lobbying for the ambitious transitional justice program mandated by the 2011 Victims and Land Restitution Law (see Vidal López, chapter 7). Indeed, from Kenya to Iraq and Guatemala, the participation of thousands of idps and refugees as claimants, witnesses, and even flag-bearers in the struggle for accountability has challenged displaced persons’ typical marginalization in formal transitional justice and reconciliation processes and has helped to reposition them as rights-bearers whose claims must be taken seriously (Bradley 2014). This trend is also reflected in the integration of these issues in numerous peace agreements and policy frameworks. For example, the 1994 Accord on Resettlement of the Population Groups Uprooted by the Armed Conflict, one of the thirteen agreements reached to end Guatemala’s thirty-six-year civil war, explicitly connects solutions to displacement with reconciliation and the need for state reform, lays out processes to address displaced persons’ land claims, and indicates that the process of resolving displacement “shall not be discriminatory and shall promote the reconciliation of the interests of the resettled population groups and the population groups already living in the resettlement areas.” Tools such as the Peace Agreement Drafters’ Handbook (Public International Law and Policy Group 2005) and the United States Institute of Peace “peacemaker’s toolkit” on Integrating Internal Displacement in Peace Processes and Agreements (McHugh 2010, 56) indicate that provisions on handling displaced persons’ justice claims, particularly those related to housing, land, and property, should be part of any agreement that seeks to resolve conflicts characterized by large-scale displacement. This suggests that formally linking these historically disconnected issues is increasingly accepted as “best practice.” International organizations have bolstered the relationship between these issues in high-profile documents such as the 2004 Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Postconflict Societies, which underscores that transitional justice and rule of law initiatives need to “pay special attention to the abuses committed against groups most affected by conflict, such as ... displaced persons and refugees, and establish particular measures for their protection and redress in judicial and reconciliation processes” (unsg 2004, 9). These issues have been

Introduction

13

broached to varying degrees in national laws and policies on displacement, and in a plethora of international policies and normative frameworks including the 1998 Guiding Principles on Internal Displacement, the 2005 un Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles), the 2008 Policy Framework and Implementation Strategy on unhcr’s Role in Support of the Return and Reconciliation of Displaced Persons, the 2010 iasc Framework on Durable Solutions for Internally Displaced Persons, and the 2011 Decision of the un Secretary-General’s Policy Committee on Durable Solutions.11 In the following chapters, contributors probe the drivers, contours, and practical and theoretical implications of this trend. In part 1, they interrogate the broad conceptual, empirical, and policy links between displacement, justice, and reconciliation, concentrating in particular on the relationship between displacement, reconciliation, and peacebuilding; durable solutions to displacement; and the complex questions surrounding housing, land, and property that accompany most if not all large-scale displacement situations and shape prospects for reconciliation. In part 2, they shift to more micro levels of analysis, exploring some of the diverse ways in which host communities and diaspora groups have engaged in dialogue and reconciliation processes. Through ethnographic research; interviews; legal, historical, and philosophical analysis; and insights drawn from professional practice, the cases contributors investigate in part 3 focus on the theoretical and practical significance of reconciliation and justice claims for the resolution of forced migration situations. Below, I briefly examine four key facets of the dynamic relationship between displacement, reconciliation, and justice that emerge in the following chapters. Multilevel Engagement and Analysis The field of forced migration studies has long sought to straddle multiple levels of analysis, and at its best brings scholarship on the lived experience of displacement into dialogue with investigations of the national and international systems that cause and structure responses to the flight of refugees and idps. Similarly, scholarship on transitional justice has evolved beyond an initial preoccupation with macro-level normative debates and the analysis of high-level institutions and processes to also encompass examinations of “local” and “customary” approaches to transitional justice and the community-level implications of justice and recon-

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ciliation efforts (see, e.g., Shaw, Waldorf, and Hazan 2010; Hinton 2011; McEvoy and McGregor 2008). Reflecting this evolving interest in and commitment to bridging multiple levels of analysis in the forced migration and transitional justice literatures, the contributors to this volume demonstrate the almost dizzying array of interconnected levels on which reconciliation and justice processes involving displaced communities may operate, and the important role multilevel analysis plays in crystallizing the agency of refugees and idps in transitional justice and reconciliation processes. Displaced populations’ dispersion across countries and continents multiplies the relevant levels and sites of analysis, and the range of ways in which displaced persons can exercise agency in these processes. For example, in her examination of Vietnamese Cambodians’ pursuit of reconciliation with their Buddhist Khmer neighbours through the veneration of Our Lady of the Mekong River, Ninh (chapter 5) weaves together analyses of conflict and reconciliation dynamics at several different levels, including within the Vietnamese Catholic community in Cambodia, between Vietnamese Catholics and their neighbours, and between between Vietnamese Catholics and the institution of the Catholic church. Her discussion underscores how religious institutions and practices may be sites of conflict as well as channels through which to pursue coexistence and ultimately some amount of reconciliation. While the imposition of reconciliation processes rooted in particular religious traditions on diverse populations with varying beliefs has been widely criticized, Ninh recalls the potential and enduring relevance of religious beliefs and practices as a foundation for reconciliation on multiple levels, even, sometimes, in spite of the divisive policies of some formal religious institutions. Conversations between the fields of forced migration and transitional justice studies provide opportunities to examine and better understand the local implications for refugees and idps of national and international policies, as well as internationally supported legal and political processes. For instance, in his examination of the ways in which Timor-Leste’s truth commission addressed the country’s long history of forced migration, Vieira (chapter 11) shows how the commission endeavoured to promote reconciliation at the national level (including through investigations of widespread forced migration), at the same time as it implemented community reconciliation processes that sought to address local grievances and allow the displaced perpetrators of “less serious” crimes to return to their homes. Although this mechanism only assisted relatively modest

Introduction

15

numbers of returnees, it nonetheless demonstrates how bodies that have often been criticized as far removed from grassroots concerns can be calibrated to operate on many levels and to respond in concrete ways to a local-level challenge. Experiences in countries such as Kenya demonstrate the tensions between high-level attempts to uphold accountability for displacement through international legal mechanisms, and efforts to respond to displaced populations’ concerns in a reasonably direct and meaningful way. In their examination of the International Criminal Court’s cases against some of the architects of the displacement crisis that followed Kenya’s 2007 elections, Morrow and Winstanley (chapter 12) show the difficulty from a legal perspective of prosecuting arbitrary displacement (known under international law as forced transfer or deportation) as a crime against humanity. While they are cautiously optimistic about the International Criminal Court’s potential contribution, efforts to uphold accountability for displacement through international prosecutions can have complex and sometimes detrimental impacts on effective and equitable responses to displacement at the local level. For example, Kamungi (2013, 14) argues that the “spectre of the criminal prosecution of perpetrators of the post-election violence through local courts, a special tribunal or the International Criminal Court increased public pressure for silence and invisibility of victims within Eldoret Municipality” in Kenya’s Rift Valley Province. This dynamic particularly affected idps from the Kalenjin tribe, which many Kenyans saw as largely responsible for the violence and displacement that wracked the Rift Valley in 2007–08, as well as in earlier periods. Other groups often percieved Kalenjin idps as undeserving of help, and members of their own group pressured them not to identify themselves, approach camps, or seek assistance, as reaching out to humanitarian agencies was seen as pretext for reporting abuses committed by other Kalenjin. A Kalenjin idp whose home was torched explained, “It was widely believed we victims would name our attackers and provide details leading to their arrest. Even though this was not necessarily our intention, our everyday activities came under intense surveillance as if we were the guilty ones. Such public suspicion discouraged us from seeking help in case talking to ngos or international aid workers was seen as a strategy to pass implicating information” (Kamungi 2013, 14). Limiting the unintended, local-level negative consequences of justice initiatives, both international and domestic, is a practical challenge that in many instances has not yet been adequately addressed. It is a challenge with particularly serious implications for displaced populations, as justice

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processes can evolve into barriers to assistance and durable solutions if their potential negative side effects are not identified, understood, and checked. Host and Diaspora Community Experiences In the emerging discussion at the crossroads of displacement, transitional justice, and reconciliation, host communities’ and diaspora groups’ diverse perspectives and experiences have remained on the peripheries, as the focus has largely been on those displaced within and returning to states emerging from conflict.12 Several contributors to this volume address this gap, and expand understanding of the range of communities shaped by displacement within which concepts and processes of transitional justice and reconciliation may be salient. Duthie (chapter 2), for example, emphasizes the importance of taking the needs and grievances of host community members into account when attempting to acknowledge and redress the injustices of displacement, recognizing that in the absence of an appropriately inclusive approach, transitional justice and reconciliation processes can foster antagonisms that undermine rather than advance reconciliation. Çelik (chapter 9) highlights how, in busy urban contexts, idps’ concerns and experiences may simply be off the radar of local residents, and suggests that Kurdish idps’ marginalization in large Turkish cities undermines prospects for reconciliation, both between citizens and with the state. The contributors to part 2 of the collection discuss, in depth, the ways in which host communities, diaspora groups, and individuals within the diaspora may figure in reconciliation processes, and so decentre the state, formal institutions, and international organizations as predominant units of analysis. For instance, Ninh’s discussion (chapter 5) of the forms of Marianism that emerged among Vietnamese Catholics in Cambodia demonstrates how transnationally connected but locally grounded rituals may open up opportunities for reconciliation between adherents and members of different faiths, as reflected in Cambodian Buddhists’ celebration of Our Lady of the Mekong River alongside Vietnamese Catholics long resident but still marginalized in Cambodia. Return movements put a range of increasingly well-recognized justice and reconciliation challenges front and centre, from facing perpetrators to resolving land conflicts. However, if reconciliation is understood as a multilevel process of building cohesive, trusting relationships (Quinn 2009, 5), then the creation of new homes elsewhere may also be understood as a

Introduction

17

process of reconciliation – with personal experiences and histories, with wary new neighbours, and with institutions including the state of origin and the state in which displaced persons settle. Host/migration states’ approaches to integration may shape reconciliation dynamics in important ways. For example, if refugees and other diaspora members experience discrimination and abuse in the country of migration, they may be prompted to reach out and begin to (re)build relationships not only with co-nationals in the diaspora, but also with former neighbours in the country of origin, and with the state of origin itself. At the same time, nation-state-centric integration models can challenge transnational reconciliation processes, as these models generally encourage newcomers to focus on integrating or even assimilating into their new community. This may discourage newcomers from voicing their histories or rebuilding relations with individuals and institutions in their state of origin, to the detriment of reconciliation and peacebuilding prospects.13 In her account of the conflicts between idps and other residents of the Colombian hamlet of Esperanza, Celestina (chapter 4) takes a fresh approach to an important question in the forced migration literature: can an individual be at least partially emplaced or integrated and yet still be displaced? In other words, when does displacement end? By applying the lens of reconciliation to discussions of emplacement and displaced persons’ evolving identities, Celestina illuminates the everyday conflicts between outsiders and insiders that must be addressed, alongside the more overt injustices of the armed conflict, as part of the emplacement process. Emplacement and reconciliation within host communities may require reconsidering the common assumption that those who were displaced are necessarily the most vulnerable or the worst off. It may also require responding to host community members’ concerns, fears, and perceived injustices, whether through official transitional justice and reconciliation processes, internationally supported coexistence activities such as those Haider (chapter 8) discusses, or, perhaps most importantly, the gradual, unglamorous, everyday processes of making friends, sharing public space, and working together (Baines and Rosenoff Gauvin 2014). Whether on the interpersonal, local, national, or transnational levels, the pursuit of reconciliation is a long-term endeavour, if it is desired at all. Drawing on her family’s experiences of fleeing Rwanda in 1960, Ndejuru (chapter 6) examines how some members of Montreal’s RwandanCanadian community use oral history, dialogue, and playback theatre to navigate the ongoing process of coming to terms with their experiences, potentially opening the door to an inevitably modest and contingent

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reconciliation. Reconciliation possibilities in diaspora communities are shaped and limited by ongoing events in the country of origin: those who fled Rwanda in the 1960s and 1970s, for example, have had to face not only the injustices that prompted their own flight decades ago, but also the 1994 atrocities. As Ndejuru poignantly shows, being physically removed from the violence does not mean that diaspora communities do not have stakes in the justice and reconciliation processes that unfold in its aftermath. Most immediately and importantly, they may have lost family members and friends, physical assets, and the ability to return safely to their countries of origin, whether in the short or long term. To be sure, their stakes are different than those living in Rwanda, and tensions may emerge between those who weathered conflict within the country and those who fled (Haider 2014). But as technological advances and transnational socio-economic activities result in ever-closer ties between diasporas and countries of origin, it is clear that transitional justice and reconciliation processes, and analyses of them, must consider diaspora communities’ experiences and perspectives. Diasporas’ involvement in justice and reconciliation processes is a particularly important proposition because, in many cases, divides in the country of origin are replicated in the diaspora, resulting in local-level conflicts and, in some instances, active involvement or interference in the violence at home, actions for which diaspora members may need to be held accountable. Diaspora communities can actively support accountability and reconciliation efforts, prompting traditionally state-centric justice and reconciliation processes to take on transnational dimensions. For example, members of the Liberian diaspora, working in cooperation with a US-based ngo, pushed for the creation of the Liberian Truth and Reconciliation Commission’s Diaspora Project, through which truth commission hearings were held in the diaspora, enabling refugees and other diaspora community members to participate actively in the truth-telling process and ideally laying the ground for the productive engagement of expatriate Liberians in the country’s peacebuilding process (Young and Park 2009). Elsewhere, diaspora members have contributed to justice and reconciliation processes by spearheading commemorations, lobbying for accountability mechanisms, testifying in trials to prosecute crimes at the root of the displacement, and channeling remittances to finance the reconstruction of homes and businesses, potentially helping to establish (albeit with varying degrees of sustainability) socio-economic conditions conducive to peace and the possibility of reconciliation.

Introduction

19

Implications for Peace Processes and the Resolution of Displacement Just as transitional justice and reconciliation processes are not a silver bullet for peacebuilding and democratization, they cannot guarantee the resolution of displacement.14 And yet the hope persists that remedies such as property restitution may translate into a breakthrough in the resolution of forced migration (particularly through the “preferred” solution of return), a challenge that is now widely recognized as a key dimension of peacebuilding (Milner 2009). This hope and strategic interest of states largely explains increased political interest in recent years in redress for refugees and idps, building on efforts under the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement) to restore lost homes to Bosnia’s 2.2 million displaced persons. Although the restitution process was insufficient to enable large-scale minority returns in Bosnia, since 1995 the majority of agreements to resolve conflicts characterized by large-scale displacement include provisions on durable solutions and remedies for displacement, particularly through property restitution, and standards such as the 2005 un Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles) support the notion of a close connection between redress and the resolution of displacement (Bradley 2013; Toal and Dahlman 2011; Phuong 2005). The case studies explored in part 3 of this collection backstop the central argument advanced by Duthie (chapter 2) in his analysis of the ways in which transitional justice measures may support reconciliation and durable solutions: at best transitional justice and reconciliation processes can make modest and contingent contributions to the resolution of displacement. Making the most of these potential contributions requires ensuring that they are not merely ad hoc interventions, but integrated into broader political reform, peacebuilding, and development processes. Milner (chapter 1) foregrounds this discussion and the cases laid out in part 3 through an examination of the connections between protracted refugee situations and peacebuilding and reconciliation processes in refugees’ countries of origin. Drawing on Lederach, Milner critiques the un’s peacebuilding approach as too focused on preventing violence rather than addressing the drivers of conflict, and argues that by privileging “negative” rather than “positive” peace, opportunities are lost to maximize refugees’ and returnees’ potential contributions to peace and reconciliation. While it has become common for researchers and practitioners alike

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to argue for long-term international engagement in the pursuit of peace, justice, and reconciliation, Milner indicates that effective responses to these challenges may also require early engagement with refugees who may play catalytic roles in building peace and supporting reconciliation. Beyond the peace education, dialogue, and training initiatives that may be implemented in the context of protracted displacement and unresolved conflict as investments in future peacebuilding and reconciliation, transitional justice mechanisms are increasingly deployed during conflicts, often with a view to opening up opportunities to build peace and resolve displacement. These efforts evoke some chicken or egg debates: do solutions to displacement follow peace, or are they a precondition for it? Do reconciliation processes help to consolidate peace, or do they make it possible in the first place? In their discussion of the role of moral acknowledgment in the resolution of the Palestinian refugee situation, Molloy, Bell, Waintraub, and Anderson (chapter 13) argue that Palestinian acceptance of particular solutions to displacement (and in turn the possibility of a resolution of the broader Palestinian-Israeli conflict) will hinge not on the details of a financial compensation package, but on recognition of the “intangible” concerns central to the narratives of each group. For the Palestinians, this entails Israeli recognition of (shared) responsibility for the Palestinians’ dispossession in 1948, and of the principle of the right of return, if not its unfettered implementation. For the Israelis, these intangible issues include recognition of the Jewish identity of the state of Israel, and assurance that a peace agreement will foreclose future claims against the state and its citizens. Molloy, Bell, Waintraub, and Anderson contend that the “road to unlocking practical solutions runs through, not around, the moral and symbolic or intangible issues,” suggesting that processes of acknowledgment and symbolic reparation have not only productive but also pivotal roles to play in ongoing conflict situations. In contrast, Vidal López (chapter 7) offers a more cautionary perspective on the role of transitional justice processes, particularly truth-telling, in ongoing conflict situations. Colombia’s ambitious transitional justice program is predicated on the assertion that its decades-long conflict is moving towards resolution, and that transitional justice measures will be central to the resolution of the displacement crisis the violence has engendered. Yet as Vidal López demonstrates, the statement that the conflict is ending is not so much an assertion of fact as a political perspective: in many ways, the conflict continues unabated, with idp leaders attacked and communities uprooted, at the same time as others are reclaiming their lands and telling their stories. In such an environment, transitional

Introduction

21

justice measures can camouflage premature attempts to close the books on displacement, while the rhetoric of transitional justice can marginalize rather than empower the displaced, whose persistent problems are out of step with the notion of post-conflict Colombia. While Çelik (chapter 9) argues that a rights-based approach is needed to resolve the internal displacement of Kurds in Turkey, and that support for reconciliation constitutes an essential element of this approach, her analysis of the Turkish state’s highly flawed compensation program for idps echoes Vidal López’s caution that transitional justice measures implemented in the context of unresolved conflict can impede rather than advance reconciliation and solutions to displacement. Ultimately, this underscores the need for clearheaded recognition of the limitations of transitional justice and reconciliation processes, particularly as they pertain to building peace and supporting the resolution of displacement. Limitations and the Need for Modest Expectations The persistent use of lofty rhetoric to describe transitional justice and reconciliation processes (as well as return movements) despite their stark limitations can be a recipe for disappointments and even renewed grievances. High-minded idealism can lead to unsuitable interventions, particularly when it is dissociated from frank recognition of the “myriad constraints” – political, legal, and socio-economic – that face transitional justice and reconciliation efforts (Williams and Nagy 2012, 12). This risk is especially high in displacement contexts involving large numbers of “victims” and a complex range of broader concerns, from physical security to reconstruction and the re-establishment of livelihoods. For example, the unhcrsupported establishment of a network of Peace Villages in Burundi for landless returnees was to reflect “a vision of an ethnically reconciled Burundi,” but in practice the villages were mono-ethnic, and geographically and economically isolated. Rather than a contribution to justice and reconciliation, returnees saw life in the villages as “a new form of exile ... This example of a no doubt well meaning but misguided intervention on the part of unhcr shows the extent to which the promotion of ‘reconciliation’ as an ideal can be extremely harmful – particularly when reconciliation was effectively being equated with an exclusively humanitarian gift of a small, infertile piece of land” (Hovil 2012b, 351). Yet as Maroun’s (chapter 10) analysis of the government of Lebanon’s ill-fated attempt to use reconciliation mechanisms to enable returns to religiously divided communities reminds us, even failures can be instruc-

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tive. Lebanon’s “official” reconciliation process was to inform decisions concerning the distribution of financial compensation and kick-start reconstruction and returns in communities eviscerated by conflict. However, the process did not enable returns, in large part because it neglected the psycho-social effects of violence and displacement, and because neither the reconciliation process itself nor related programs adequately addressed the socio-economic hardships that constrained return and reconciliation prospects. In a testament to missed opportunity, many Lebanese are unaware that a state-sponsored reconciliation process – ostensibly rooted in local customs – even took place. In the context of a field enamoured with the potential of “traditional” or customary justice and reconciliation processes, this experience demonstrates the limited traction such approaches may have, particularly when they are tethered to unwieldy, unrepresentative, and politicized bureaucratic processes, and are not backstopped by a broader range of efforts to equitably address grievances and hardships would-be returnees, as well as their former neighbours, face. And yet, as Haider (chapter 8) emphasizes, even when coexistence initiatives engage members of divided communities and attempt to respond in a tangible manner to socio-economic priorities, the typically limited duration of such interventions, coupled with the magnitude of the grievances they seek to address, hinder their contributions to reconciliation and sustainable returns. Transitional justice and reconciliation processes are often highly controversial and may derail broader responses to displacement. For example, in 2013 a new bill on the rights of idps in the Philippines was vetoed by the country’s president, in large part because of wrangling over compensation issues (pna and Philippine Times 2013). Transitional justice processes can engender competition and jealousy between groups entitled to different kinds and amounts of redress, and almost inevitably present trade-offs: in impoverished environments, can social services be cut to finance reparations programs? Is preferential access to services that should ideally be provided equitably to all citizens a legitimate form of redress (Perez Murcia 2014)? Savvy and systematic policies; strategic implementation processes; clearly communicated goals; and effective positioning of “official” transitional justice and reconciliation measures in relation to broader development, governance, and peacebuilding programs can reduce some of these tensions. Others, however, are inherent to the endeavour itself. For instance, when injustices span decades, attempts to redress them may generate fresh injustices that surpass the moral ground gained in seeking to rectify pre-existing wrongs. This conundrum is par-

Introduction

23

ticularly pertinent in protracted displacement situations, where restoring refugees’ lost homes and lands may entail uprooting others long resident on the land. In regions characterized by overlapping histories of displacement, whose claims should be upheld? Dumper (chapter 14) engages with this puzzle through Waldron’s (1992) seminal work on “superseding” historic injustice, and considers its particular implications for the especially thorny case of the Palestinian refugees. Reinforcing a common refrain in this volume, Dumper ultimately emphasizes the need to take seriously the rights of refugees as well as those of other groups, including in some instances longstanding secondary occupants, and explores how we may find room for compromise between positions in a seemingly intractable conflict. Taken together, many of the chapters in this collection function as a plea for tempered expectations regarding possible policy achievements from efforts to explicitly address the links between processes of forced migration, transitional justice, and reconciliation. Recognizing that we are still at the early stages of a long process of bringing traditionally disparate fields of investigation and practice into dialogue with one another, in the conclusion to this book I draw out some of the implications of this work for the future research, policy, and practice. These conclusions are informed not only by the authors’ very cautious optimism about how transitional justice and reconciliation processes can respond to the concerns refugees and idps face, but also by their virtually unanimous view that, however imperfect, the steps taken toward understanding and honouring the claims for justice and reconciliation held by those forced from their homes represent a worthy advance over previous eras when such concerns received almost no attention at all.

notes 1 The Refugee Law Project at Makerere University in Uganda (www.refugee lawproject.org) and the International Refugee Rights Initiative (www.refugeerights.org) have played leading roles in drawing attention to the connections between these issues, particularly in African contexts. 2 On these cases, see for example irin (2012b, 2013a, 2013b) and Pandita (2013). 3 For a related endeavour, focusing on the concept of reconciliation more generally, see Rothfield et al. (2008). 4 In this collection the terms “displacement” and “forced migration” are used interchangeably to refer to the uprooting of refugees and/or idps. Legal defi-

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5 6 7 8 9

10

11

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Megan Bradley

nitions of “refugee” may be found in agreements such as the 1951 Convention relating to the Status of Refugees, and the 1969 oau Convention Governing the Specific Aspects of Refugee Problems in Africa. Generally speaking, refugees are those who have had to flee across an international border to escape persecution or other factors such as armed conflict. The Guiding Principles on Internal Displacement (un ocha 1998) indicate that idps are those who have been “forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border.” For an analysis of the discourse of durable solutions, see for example Hammond (1999). Souter (2013) argues that the provision of asylum may also, in some cases, serve as a kind of redress for past injustice. Notably, some practitioners and researchers distinguish between coexistence and reconciliation (see, e.g., Pope 2008; Hamber and Kelly 2009). On the links between reconciliation and peacebuilding more generally, see Llewellyn and Philpott (2014a). The “official” reconciliation process in Lebanon (Maroun, chapter 10) and the truth-telling process in Timor-Leste (Vieira, chapter 11; Rimmer 2001a, 2001c) are exceptions to this generalization. For a discussion of evolving trends in the provision of restitution as a remedy for displacement, see Williams (2012). For an overview of the links between displacement and criminal justice, see Andreu-Guzmán (2012). On the connections between displacement and truth-telling, see Bradley (2012b), and on compensation and other forms of reparation for refugees and idps, see Van der Auweraert (2012). Hovil (2012) examines these mechanisms’ gender dimensions as they relate to displaced populations. For a compilation of national laws and policies on internal displacement, including those that address justice and reconciliation issues, see the displacement laws and policies index created by the Brookings-lse Project on Internal Displacement (www.brookings.edu/about/projects/idp/resources /idp-policies-index). For a discussion of the potentially counterproductive implications of the Pinheiro Principles for post-conflict reconciliation, see Smit (this volume). Important exceptions include Young and Park (2009), Steinberg (2010), and Haider (2014). I am grateful to Thien-Huong T. Ninh for her insights on this issue.

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14 On the contested relationship between transitional justice, reconciliation, and peacebuilding, and the difficulties of assessing the effects of transitional mechanisms, see, for example, Llewellyn and Philpott (2014b), Weinstein (2011), Dancy (2010), Pham and Vinck (2007), and Thoms et al. (2010). Notably, in quantitative investigations of the impact of transitional justice interventions, very few scholars have devoted detailed attention to the resolution of displacement, and have focused instead on potential impacts such as democratization and stabilization. Nalepa’s (2012) investigation of the impacts of the International Criminal Tribunal for the Former Yugoslavia on return movements in Bosnia is an important exception, although her use of refugee returns as a proxy for reconciliation is contentious.

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Acknowledgments

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PA RT ONE

Displacement, Justice, and Reconciliation: Conceptual and Policy Links

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preface

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1 Refugees, Peacebuilding, and Reconciliation: Lessons from Policy, Practice, and Research JAMES MILNER

“Peacebuilding” has emerged as a prominent theme in international policy, practice, and research since the early 1990s.1 Motivated largely by a perceived change in the nature of conflict since the end of the Cold War, especially the rise in intra-state conflict and the tendency for conflicts to resume after their supposed resolution, debates on the theory and practice of peacebuilding have broadly focused on how best to encourage peace and prevent a return to violence in countries previously affected by conflict. Given this debate’s prominence and potential connections with the discussions on displacement and reconciliation presented in this volume, in this chapter I provide a brief introduction to peacebuilding policy, practice, and research before considering the potential links between the prolonged presence of refugees in neighbouring states and peacebuilding, including reconciliation, in their country of origin. To conclude, I consider how the potential of these linkages between refugees and peacebuilding may be limited by a conceptualization of peacebuilding that emphasizes the prevention of violence over the resolution of the root causes of conflict, which Galtung (1969, 2001) characterizes as privileging “negative” peace over “positive” peace. While there has been a significant theoretical debate on the meaning of peacebuilding, Knight (2004, 355) observes, “the practice of peacebuilding has been running ahead of peacebuilding theory.” Given that this trend has largely continued over the past decade, in this chapter I focus on recent developments in peacebuilding policy and practice within the United Nations (un) system. These developments include the work of the un’s Peacebuilding Commission (pbc), established in December 2005,

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and the 2009 Report of the Secretary-General on Peacebuilding in the Immediate Aftermath of Conflict, which details the range of activities the un should support to “secure sustainable peace more rapidly and effectively” (unsg 2009, 1). I argue that while there have been many innovations in peacebuilding policy, practice, and research over the past two decades, these institutional and conceptual developments within the un system represent an important policy context where the challenge of reconciliation in countries emerging from conflict may be addressed and where the potential role of refugees in the process may be realized.2 These connections are even more important given that the majority of refugees are currently found in some of the world’s poorest and most unstable regions and originate from some of the world’s most fragile states. Just as conflict and instability in these countries of origin have become protracted (Crocker et al. 2005), some two-thirds of today’s refugees are in situations of prolonged exile. In fact, the average duration of a refugee situation now exceeds seventeen years (see unhcr 2004; Milner and Loescher 2011). While policymakers and practitioners recognize the importance of peacebuilding and reconciliation in these fragile states, it is also important to recognize the benefits of integrating refugee issues more systematically and proactively into responses to long-standing conflicts. In fact, refugee movements are not only a consequence of conflict and state fragility, but also may exacerbate conflict or frustrate efforts to find peace if their needs and aspirations are not effectively addressed. Likewise, some scholars argue that the incorporation of displaced populations into the design and implementation of peacebuilding and reconciliation programs can not only result in more effective peacebuilding, but also enhance the prospects of finding durable solutions for the displaced (Duthie 2012b; Loescher and Milner 2008).3 In this chapter, I argue that the prolonged presence of refugees in neighbouring countries may affect peacebuilding, including reconciliation, in the refugees’ country of origin in both positive and negative ways. Specifically, I outline how refugees’ presence in the region may undermine peacebuilding through the presence of “spoilers” in refugee-populated areas (Stedman 1997); pressure on fragile institutions and services caused by early and mass repatriation; and considerations of how the experience of exile, especially through politicization or radicalization, may undermine reconciliation efforts upon return. More generally, however, I also consider refugees’ potential contribution to peacebuilding in their country of origin, in particular if they benefit from skills training and self-reliance while in exile. They may learn skills and qualifications

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that could help address specific gaps in the provision of basic services in their country of origin, especially relating to health and education. Likewise, peace education, coexistence programs, and the leadership and organizational skills many refugees develop while in exile could enhance reconciliation and conflict resolution prospects upon their return, thereby enhancing peacebuilding, while their inclusion in peace negotiations, elections, and peacebuilding planning could enhance the legitimacy of these undertakings and help ensure that they more fully represent the broad spectrum of war-affected populations. In this way, I discuss how a more systematic and earlier engagement with refugees in exile could enhance peacebuilding initiatives in their countries of origin and contribute to a more effective response to the core priorities identified by the un’s recent peacebuilding policies, including support to basic safety and security; political processes; providing basic services; restoring core government functions; and supporting economic revitalization (unsg 2009). At the same time, however, I outline how recent conceptualizations of peacebuilding within the un system view reconciliation activities primarily as an element of one of five core peacebuilding priorities, namely support for political processes, rather than a process that reinforces all aspects of peacebuilding. In other words, recent peacebuilding discussions within the un have treated reconciliation as a distinct and delineated process, rather than as an ongoing priority throughout the peacebuilding process that, in turn, contributes to a context more conducive to peace and sustainable development in post-conflict societies. This emphasis on siloing rather than mainstreaming reconciliation may present an important obstacle to many of the conclusions and recommendations that contributors to this volume propose; understanding and overcoming this emphasis could consequently be a useful focus of future discussions and research. More generally, however, I consider how a more integrated approach to refugees, peacebuilding, and reconciliation, and an understanding of reconciliation as both a means and an end, may reinforce other peacebuilding priorities, such as the provision of basic services. I begin this chapter with an overview of peacebuilding policy and practice since the early 1990s, especially developments within the un system. Here, I consider how the scope and meaning of peacebuilding as presented in recent un reports compares with the scope and meaning of reconciliation as outlined by Bradley (this volume, introduction). Next, I consider the challenges and opportunities refugees in neighbouring countries pose to the five peacebuilding priorities outlined by the un secretary-general in 2009. To conclude, I point to several important areas for future

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research and policy development. First, it is important to highlight the limited scope of the un’s approach to peacebuilding, which focuses primarily on activities intended to prevent a recurrence of large-scale violence in the two years after a conflict ends. While I consider the benefits of engaging with refugee populations within this context, future research and policy discussions could further explore these connections within a broader understanding of the pursuit of a positive peace (Galtung 1969) rather than simply the absence of violence. Second, international peacebuilding planners could usefully engage with refugee populations prior to repatriation, and view refugees’ prolonged presence in neighbouring states as an opportunity to invest in refugees and more systematically equip them with conflict resolution and peacebuilding skills. Finally, I point to the importance of a more systematic dialogue between the peacebuilding and refugee studies literatures, and the need to overcome what Morris and Stedman (2008, 69) identify as a “deep chasm between these two topics.” P EACE B U I L D I N G P OL I C Y A N D P R AC TI C E : D E V E LOP M E N TS W I THI N THE U N SYSTE M

In his 1992 report, An Agenda for Peace, un Secretary-General Boutros Boutros-Ghali argued that the end of the Cold War presented new challenges and opportunities for both the international community and international institutions mandated with the preservation of peace and security (unsg 1992). In considering the various tools at the un’s disposal in responding to the new security environment, he added “peacebuilding” to the more established activities of preventive diplomacy, peacemaking, and peacekeeping. He argued that such an innovation was required as the un system needed to develop the capacity to “stand ready to assist in peacebuilding in its differing contexts: rebuilding the institutions and infrastructures of nations torn by civil war and strife; and building bonds of peaceful mutual benefit among nations formerly at war” (unsg 1992, para. 15). While few of these activities were new, it was increasingly recognized that these longer-term undertakings were essential elements in preventing a return to conflict. Several cases through the 1990s illustrated the importance of peacebuilding, including Liberia, Rwanda, Sudan, and the Former Yugoslavia; however, numerous gaps remained in the conceptual and practical understandings of its process. Although growing evidence suggested that effective peacebuilding strategies should involve long-term activities designed to support the security, political, economic, and justice

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and reconciliation needs of a country emerging from conflict (Ali and Matthews 2004), no single international organization had the mandate to undertake this full range of activities. While the un system contained a number of specialized agencies with mandates to undertake some of these activities, and while these agencies had been involved with peacebuilding activities around the world for some time, it became increasingly clear that stronger leadership and institutional coherence were required to ensure that peacebuilding was more effectively and systematically undertaken. The pbc’s establishment was subsequently proposed as a way to ensure better leadership and coordination of peacebuilding activities within the un system. un Secretary-General Kofi Annan endorsed it as an intergovernmental advisory body that could ensure long-term political support and funding for post-conflict recovery programs, in addition to advising on thematic issues and specific cases (unsg 2005). The un General Assembly subsequently established the pbc, along with the Peacebuilding Support Office and the Peacebuilding Fund, on 30 December 2005 through Resolution 60/180. In doing so, it recognized the “interlinked and mutually reinforcing” nature of peace and security, development, and human rights, and the benefits of “a coordinated, coherent and integrated approach to post-conflict peacebuilding.” To this end, the pbc was created to serve three functions: •

•

•

To bring together all relevant actors to marshal resources and to advise on and propose integrated strategies for post-conflict peacebuilding and recovery; To focus attention on the reconstruction and institution-building efforts necessary for recovery from conflict and to support integrated approaches in order to lay the foundation for sustainable development; To provide recommendations and information to improve the coordination of all relevant actors within and outside the un, to develop best practices, to help ensure predictable financing for early recovery activities, and to extend the period of attention the international community gives to post-conflict recovery.

The first two countries on the pbc’s agenda were Burundi and Sierra Leone.4 In Burundi, the pbc’s early work focused on promoting good governance, strengthening the rule of law, security sector reform, and ensuring community recovery. In Sierra Leone, it focused on youth employ-

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ment and empowerment, justice and security sector reform, democracy consolidation and good governance, and capacity building, especially for government institutions (unga 2007). While these were arguably significant contributions to peacebuilding in both cases, it is important here to note at least three limitations in the early work of the pbc. First, the pbc arguably adopted a narrow conceptualization of what constitutes peacebuilding at a time when the peacebuilding literature called for a broader conceptualization (see, e.g., Ali and Matthews 2004; Cousens and Kumar 2001; Tschirgi 1996; and Stedman et al. 2002). Specifically, its understanding of peacebuilding appears to have followed the un system’s tendency to view peacebuilding, in the first instance, as efforts to prevent a return to violent conflict in the early period after the formal end of hostilities. As the un secretary-general (2009, 1) later articulated, this could be understood as “the challenges that postconflict countries and the international community face in the immediate aftermath of conflict, defined as the first two years after the main conflict in a country has ended.” Although it is beyond the scope of this chapter to present a detailed review of the peacebuilding literature at the time of the pbc’s establishment (see Cutter 2005), much of that literature called for a peacebuilding approach that went beyond the short-term prevention of renewed violence and included longer-term efforts to address the root causes of violence. This distinction drew largely from broader understandings of peace in the peace research literature, especially the work of Galtung (2001, 3), who proposed a distinction between negative peace, “which is the absence of violence,” and positive peace, which includes addressing root causes of conflict and violence, efforts at reconciliation, and building “the capacity to deal with conflict non-violently and creatively.” For example, Ali and Matthews draw on this characterization in their review of ten peacebuilding cases in Africa to argue that it would be problematic to premise peacebuilding on a limited timeframe and exclusively on the absence of violence. Instead, they argue: Building peace is a long-term, complex, multidimensional process during which the previously warring parties lay down their arms, learn to manage their differences without resorting to violence, develop a common set of goals and common identity, move toward the creation of a just and more equitable society, and rebuild relationships that have broken. The ultimate objective of this process is the achievement of peace, not just “negative peace” or the mere absence of violent

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conflict, but movements towards “positive peace,” a condition in which the human security of a country’s population is assured. (Ali and Matthews 2004, 395) This characterization of negative and positive peace shares important similarities with the characterization of reconciliation Bradley presents in the introduction to this volume. Although reconciliation is a concept that “elude[s] precise definition,” Bradley builds from Quinn (2009) to describe reconciliation as “a process of building relationships of trust and cohesion on various levels, from the national and international to the individual, interpersonal, and communal levels.” She argues that this understanding of reconciliation suggests a “spectrum of actions,” which may help to enable “thin,” or potentially “thicker,” forms of reconciliation. In this way, thicker reconciliation may be seen to further the objectives of “positive peace,” whereby violent conflict is not only prevented but the underlying drivers of conflict within society are addressed. Likewise, thin reconciliation may be seen to reflect the priorities of negative peace, whereby peacebuilding only addresses the immediate drivers of violence, such as through an emphasis on non-violent coexistence. Just as Bradley builds from Ndjejuru (this volume) to note that “sometimes the most that can be hoped for is a ‘modest reconciliation’ that enables peace without necessarily contemplating forgiveness or deeper forms of trust,” it is important to highlight the “modest peacebuilding” the pbc pursued in its early work, in contrast to the robust understanding of peacebuilding recent scholarship proposes. As I outline below, this has important implications for the nature of peacebuilding activities, and for the place of reconciliation within peacebuilding planning more generally. A second limitation in the pbc’s early work was its almost exclusive focus on peacebuilding activities within the country in question, with very limited attention to cross-border dynamics that could potentially undermine such activities. This gap was striking given the demonstrated potential of intra-state conflict in the global South to frequently spill over into neighbouring states, thereby regionalizing conflict (Ayoub 1995; Buzan 1992). For example, conflict in Burundi and Sierra Leone affected not only these two countries but also other countries in the Great Lakes region of Central Africa and the Mano River Union in West Africa as a result of the proliferation of small arms and the movement of armed elements across borders. These aspects of conflict may not only spread violence and instability to neighbouring countries, but also undermine conflict management and peacebuilding activities in the country of origin.

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Third, the pbc’s early capacity did not enable it to support the numerous countries in need of peacebuilding assistance from the un system. In fact, while the pbc had two countries on its agenda in 2007, the un Security Council passed resolutions on peacebuilding needs in twenty specific countries,5 in addition to regional and thematic resolutions. At least partially in response to this difference between early capacity and need, the president of the un Security Council issued a statement on 20 May 2008 that asked the secretary-general for additional guidance on how the un system collectively could provide more collaborative and predictable support to “national efforts in affected countries to secure a sustainable peace more rapidly and effectively” (unsc 2008, 2). In response to this request, the Report of the Secretary-General on Peacebuilding in the Immediate Aftermath of Conflict was issued on 11 June 2009. The report’s primary focus was to identify core peacebuilding priorities and to outline the range of activities necessary to address these priorities. Specifically, it identified five core peacebuilding priorities for the un: basic safety and security; political processes; provision of basic services; restoring core government functions; and supporting economic revitalization. While reconciliation is arguably related to each of these priorities, as the contributors to this volume suggest, the report addresses it primarily in terms of the role “minimal” reconciliation may play in supporting political processes (unsg 2009, 6). While the report emphasizes short-term objectives and perpetuates a limited understanding of the type of peace that should be achieved in post-conflict societies, it does suggest the need to broaden the geographic context of the un’s peacebuilding work beyond the pbc’s country-specific approach. Specifically, the report recognizes that “many conflicts have crossborder dimensions,” (unsg 2009, 13) and that such dimensions need to be part of a more comprehensive approach to peacebuilding within the un system. RE FU G EE S A N D P E AC E B U I L D I N G : C H A L L EN G E S A N D OP P ORTU N I TI E S

Refugee populations’ prolonged presence in neighbouring countries may be understood as one cross-border issue that peacebuilding planners should more systematically consider. In fact, cross-border dynamics associated with refugee populations present both challenges and opportunities to meet the five core elements of peacebuilding identified by the secretary-general. While future research could more methodically interrogate these linkages and offer a critique of this approach given its emphasis on

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negative peace over positive peace, in this section I draw on the existing literature on refugees and peacebuilding to briefly consider the links between the five core elements of peacebuilding and refugees’ presence in neighbouring countries. Support for Basic Safety and Security Ensuring basic safety and security in the immediate aftermath of conflict is a paramount yet broad peacebuilding objective. Activities in this area range from former combatants’ disarmament, demobilization, and reintegration, to security sector reform, reinforcing the rule of law, mine clearing programs, and deploying international or regional peacekeepers. While many of these activities are concentrated in the country in question, and relate to broader discussions of displacement and reconciliation (Clark 2014), they also have important cross-border elements. One of the most significant cross-border challenges relates to the presence of “spoilers” in refugee camps or refugee-populated border areas. Spoilers, understood as “groups and tactics that actively seek to hinder, delay, or undermine conflict settlement” (Newman and Richmond 2006), are closely associated with the problem of “refugee warriors” (Zolberg et al. 1989). In recent years, spoilers in the refugee-populated areas of neighbouring states have frustrated peacebuilding efforts in conflicts as diverse as Burundi, Liberia, Afghanistan, Myanmar, and Sudan. As un Security Council Resolution 1208 (1998) recognizes, more effective responses to these populations in exile would make important contributions to security in the country of origin, refugee-hosting states, and within refugee-populated areas, in addition to the security of refugees themselves. More generally, there are several ways that more proactive engagement with refugee populations in exile may support basic safety and security in the country of origin. First, unhcr’s experience with peace education programs in several asylum countries suggests that such programs can teach refugees better conflict resolution and mediation skills. Such programs, which have been implemented in refugee and returnee camps in the Democratic Republic of Congo, Eritrea, Ethiopia, Kenya, Uganda, Liberia, Guinea, Sierra Leone, and Côte d’Ivoire, contribute to the learning and practice of peacebuilding skills in camps and to conflict reduction (Sommers 2001). For example, peace education programs in the Kakuma and Dadaab refugee camps in Kenya in the early 2000s, among other factors, contributed to reduced violence in those camps (Obura 2002). Similar benefits were observed as a result of participation in “coex-

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istence programs” in cases such as Bosnia, Liberia, Rwanda, Sri Lanka, and Timor-Leste (unhcr 2010; Haider 2009).6 Given these benefits, it may be useful to more fully consider how these coexistence programs could better ensure basic safety and security within the refugees’ country of origin by equipping them with the skills to “[build] relationships of trust and cohesion” (Quinn 2009, 5), especially at the interpersonal and communal levels. Second, more systematic engagement with youth within refugee populations can also contribute to peacebuilding. Specifically, livelihood and vocational training that targets youth leaving secondary school could help address the tendency for unemployed youth, especially males, to be susceptible to recruitment by armed groups and to engage in activities that are either illegal or undermine peace. These tendencies are heightened if they repatriate without livelihood skills that are in demand in their country of origin. For example, addressing such concerns prior to repatriation could have contributed to peacebuilding in Sierra Leone, where the large number of youth who were unemployed or lacking educational opportunities was identified as a potential challenge to peacebuilding efforts. Support for Political Processes A strong link also exists between engagement with refugees in neighbouring countries and support for the political process in the country of origin. Bradley (2012a, 11) notes, “unreconciled tensions can stymie the efficacy of conflict management and conflict resolution processes, further increasing the likelihood of displacement.” In this way, an emphasis on reconciliation in the political process may help prevent and resolve forced migration. More generally, however, it is important to consider how the engagement of and with refugees may, in turn, enhance a range of political processes. These processes include planning and holding elections; developing conflict management mechanisms; promoting inclusive dialogue; and the broader process of reconciliation, both through national mechanisms, such as truth and reconciliation commissions, and also through efforts at reconciliation at a community level. In fact, a clear lesson from the refugee studies literature is that refugees in exile often remain engaged in the political process in their country of origin. Where opportunities for political participation are not ensured, refugees can frequently become politicized or radicalized – especially during prolonged displacement, when refugee populations are under the control of “states in exile” (Lischer 2005) and where alternative forms of participation in the

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country of origin are not provided. Examples of such dynamics may be found in the rise of palipehutu and other groups within the Burundian refugee population in Tanzania in the 1970s and 1980s (Malkki 1995a), and in Bosnian (Zaum 2011), Rwandan, and Afghan refugee populations (Lischer 2005). In light of these dynamics, it is important to note that recent research outlines the importance of refugees’ active involvement in post-conflict elections and referenda in situations as diverse as Angola, Bosnia-Herzegovina, Cambodia, Guatemala, Mozambique, and Nagorno-Karabakh (Grace and Mooney 2009; Johansson 2009). While refugees have the right to participate in elections, as articulated in article 25 of the International Covenant on Civil and Political Rights, displaced populations’ exercise of that right in post-conflict elections is important to the peacebuilding process as they may directly select their post-conflict leadership. Notwithstanding this important political and symbolic contribution to peacebuilding, refugees’ participation in post-conflict elections is frequently hampered by a number of constraints that peacebuilding actors could usefully address. These include planning electoral districts in the country of origin; voter registration and eligibility; logistical challenges related to voter registration and out-of-country voting; and security concerns related to campaigning and distributing voter information in refugee camps (Grace and Mooney 2009; Long 2010). A wider range of cases, however, indicate that enabling refugees to be directly involved in the peace process and the planning of the subsequent peacebuilding program can reduce refugee radicalization, make negotiations’ outcomes more legitimate, and ensure that they support the subsequent peacebuilding process. In fact, refugees in exile can contribute to the political process in their country of origin through a number of confidence-building measures, peace education programs, and contributions to the difficult work of truth commissions and tribunals (Bradley 2011; Pope 2008). Given these demonstrated benefits, it would also be useful to consider how a more comprehensive understanding of the links between refugees, peacebuilding, and reconciliation might provide a context more favourable for advancing a wider range of peacebuilding priorities, not only political processes. Provision of Basic Services One of the most recognized links between refugees and peacebuilding relates to the opportunities to train refugees in exile to help provide basic services in their country of origin, including health and primary educa-

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tion. For example, teacher training programs in the Kakuma refugee camp in Kenya have been found to help address the significant shortage of teachers in South Sudan (unhcr 2007). Likewise, Liberian refugees repatriating from Ghana have returned with skills acquired in exile that can contribute to a range of public services (Coffie 2013). Closer collaboration between peacebuilding actors and unhcr could further integrate such opportunities into the peacebuilding process. More generally, however, the un secretary-general recognizes that refugees’ return and reintegration remains a significant challenge and a potential strain on the ability of a country emerging from conflict to provide basic services for its citizens (unsg 2009, para. 58). While refugees’ return may be seen as an indicator of successful peacebuilding, this process is especially difficult following prolonged conflict and prolonged exile situations in which physical infrastructure, homes, and social services have been destroyed. As such, peacebuilding in such contexts should address a wider range of interconnected issues affecting returnees, from justice and reconciliation, housing and property rights, and enhancing the rule of law, to the provision of livelihoods in war-torn economies (Ogata 1997; Chimni 2002). The connections between these issues further highlight the importance of approaching reconciliation activities as a foundation for all aspects of a peacebuilding process – not only political processes – especially given current dynamics of displacement (Bradley 2012a). Specifically, prolonged exile may complicate access to land and reintegration into the local economy.7 For example, many Afghan refugees, particularly those who have been in exile since 1979, have experienced difficultly reclaiming land following repatriation (Schmeidl and Maley 2008; Lumpp et al. 2004). Likewise, 32 per cent of Burundian refugees repatriating from Tanzania in 2008 either had land that was already occupied or had no access to land at all (Milner 2014). These challenges are compounded by the scale of repatriation: more than 3.5 million Afghan refugees have repatriated since 2002, while 6 per cent of Burundi’s population repatriated between 2002 and 2008. Large-scale repatriation of refugees who have been in exile for prolonged periods, sometimes generations, frequently gives rise to conflict over land and property as refugees frequently return to find their land and houses now occupied by others who have competing claims for ownership. Recognizing that disputes arising from contested land ownership present a significant challenge for peacebuilding at a local level (Vorrath 2008), the Peacebuilding Fund has given unhcr support for its return and reintegration programs in a number of countries to develop mechanisms to address such disputes.

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For example, Peacebuilding Fund support has reinforced the work of the Commission National de Terres et Autres Biens (National land commission) in Burundi. The commission’s mandate was to mediate cases of occupied land and to arbitrate solutions to ensure that returnees could find a destination for return and reintegration as soon as possible. Between 2008 and 2009, it ruled on approximately 5,600 of 12,000 cases received. In many, it encouraged the occupying family to split or share the land with the returnees, once the returnees had been able to establish their original ownership. While future generations may question the enduring legitimacy of these rulings, the commission’s work was a useful short-term mechanism to address the challenge of land within the context of peacebuilding and return and reintegration in Burundi (Milner 2014). Many of these challenges can be compounded in situations of early and mass repatriation before the necessary conditions and structures exist in the country of origin. These concerns are heightened if host states believe that the costs associated with granting asylum are not being adequately shared and consequently push for repatriation, straining fragile institutions in the country of origin. Early repatriation also frequently leads to renewed displacement if the original displacement’s root causes are not addressed, as seen in cases as diverse as Liberian refugees in Guinea, Rohingya refugees in Bangladesh, and Afghan refugees in Pakistan. To prevent such challenges, it is important to ensure that donor interest does not rapidly shift to peacebuilding in the country of origin at the expense of refugee assistance programs in neighbouring countries and support to states hosting refugees. Support for Restoring Core Government Functions Many countries emerging from prolonged conflict face significant challenges relating to basic public administration and public finance. In addition to training refugees in exile to help address these functions upon return, a number of activities may be undertaken in neighbouring countries to ease the demands on core government functions as refugees return. These activities include the adjudication of land claims and the issuance of key government documents, including birth certificates, citizenship papers, and other documents that establish identity and credentials. As noted above, land is a significant issue that affects return and reintegration, and can place a significant strain on core government functions. For example, it was estimated that 70 per cent of cases before Burundi’s courts in the mid-2000s related to land issues (Milner 2014). While unhcr

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has sought to address this issue through support to the National Land Commission, these functions continue to burden the Burundi government’s limited financial and human resources. To ease such pressures, and to further the Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles), peacebuilding actors could engage with refugee populations prior to repatriation to begin the land arbitration process. Such a proactive approach may ideally help prevent conflict in return communities. Likewise, closer integration between peacebuilding actors and unhcr could ensure that refugees repatriate with key government documents, including birth certificates, citizenship papers, and other documents that establish identity and credentials. This task is especially important as more refugees are born in exile and face significant difficulties reintegrating into the state’s bureaucratic structures without proper documentation, and as some are educated in exile and require documentation for their credentials to be recognized. Support for Economic Revitalization Finally, refugees can make a significant contribution to economic revitalization in their country of origin as a result of skills and training they received in exile. In a statement to the un Security Council in January 2006, the un high commissioner for refugees noted, “refugees return with schooling and new skills ... Over and over, we see that their participation is necessary for the consolidation of both peace and post-conflict economic recovery.” More generally, unhcr (2008, 10) notes: People who have benefited from education, skills training and livelihood opportunities during their time as refugees, and who have been able to attain a degree of self-reliance while living in a country of asylum, retain their hope in the future and are better placed to create and take advantage of new economic opportunities after their return. While living in exile, long-term refugees also have an ideal opportunity to acquire valuable skills in areas such as leadership, advocacy, mediation and conflict resolution, which will again enable them to contribute to the rebuilding of their communities once return becomes possible. Refugees’ potential to make these kinds of contributions to economic revitalization in their country of origin will be enhanced through closer cooperation between unhcr and peacebuilding planners. Specifically,

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language training, vocational training, professional development, and a range of other programs could usefully be implemented for refugees in exile to specifically respond to gaps and opportunities in the country of origin. Such efforts may play a particularly important role in communities affected by large-scale displacement, as research suggests that enhancing socio-economic well-being may have a positive effect on openness to reconciliation (Chayes and Minow 2003; Longman et al. 2004, 219). C ON C LU S I ON : A RE A S FO R I N N OVATI ON I N R E S E A RC H A N D P OL I C Y

In this chapter, I have outlined how refugees’ prolonged presence in neighbouring countries is one cross-border dynamic that may affect peacebuilding, including reconciliation, in the country of origin. I have detailed how cross-border dynamics associated with refugee populations present both challenges and opportunities to meet the core elements of peacebuilding identified by the un secretary-general, including basic safety and security; political processes; provision of basic services; restoring core government functions; and supporting economic revitalization. In particular, I have outlined how refugees’ prolonged presence in neighbouring countries can have a negative impact on peacebuilding if the refugee population contains armed elements opposed to peace, if the host country pushes for early and unsustainable repatriation, and if refugees are politicized while in exile. At the same time, refugees can contribute to peacebuilding, especially if they benefit from training, skills development, and peace and coexistence programs while in exile. More generally, however, my analysis suggests that recognizing the relationship between refugees in exile and peacebuilding in their country of origin could lead to at least three areas of future research and policy innovation. First, it is important to highlight that the un’s approach to peacebuilding, as detailed in this chapter, focuses primarily on activities intended to prevent a recurrence of violence in the two years after the end of a conflict. In contrast, recent research illustrates the benefits of a broader understanding of peacebuilding premised on building positive peace, such as the approach Ali and Matthews (2004) propose as outlined above. Future research could consider how such an approach could create new opportunities to engage with displaced populations and more comprehensively address the role that reconciliation may play in all aspects of this process. For example, a recent review of unhcr’s role in coexistence programs, both in asylum and following repatriation, suggests that the scope of dis-

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cussions on the relationship between refugees and peacebuilding could usefully be broadened beyond efforts to prevent a relapse of violent conflict to include systematically addressing root causes of conflict between communities and equipping refugees with the skills necessary for conflict resolution and reconciliation within their communities (unhcr, osts/ dpsm 2010). In contrast, the un’s more narrow characterization of peacebuilding predicated on the prevention of violence may unintentionally diminish the role of reconciliation in building peace, especially when considering refugees’ potential role in this process. By explicitly identifying reconciliation as an important element of one of the five priority areas of activity in post-conflict situations (supporting political processes), the un’s approach overlooks both the ability of reconciliation to further other peacebuilding objectives and the broader role it can play in not only preventing violence but also addressing its root causes. We should consider how reconciliation could play a more central role in a positive peace approach to peacebuilding, thereby creating an environment where the broader range of peacebuilding priorities may be more effectively pursued. Second, I have outlined the various ways that refugees can contribute to peacebuilding in their country of origin if given the necessary opportunities while in exile. Peacebuilding actors should engage with refugee populations prior to repatriation. Hosting refugees and providing asylum are not only a humanitarian endeavor, but also more broadly an opportunity to invest in peacebuilding by equipping refugees with conflict resolution and peacebuilding skills. Such an approach could help move beyond the rhetoric of the prolonged presence of refugees as a burden or a security concern, and recast discussions about neighbouring states’ provision of asylum as a contribution to peacebuilding in the refugees’ country of origin. It could also bring a wider group of actors into discussions about supporting asylum policies and programs that would facilitate the kinds of peacebuilding contributions outlined in this chapter. Third, my findings highlight the need to address a gap that exists within and between the peacebuilding and the refugee studies literatures. For its part, the refugee studies literature largely treats refugee movements as a consequence of conflict and instability, not as an independent causal variable, in explaining either the prolongation or mitigation of conflict. As Morris and Stedman (2008, 82) note, “refugee movements are all too often seen only as a by-product of conflict, with limited attention paid to the various ways they may cause conflict, prolong conflict, or frustrate efforts to resolve conflicts.” They further note (2008, 69) that “despite a few

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exceptional attempts to bridge the gap between the study of refugees and the study of international security and conflict management, there remains a deep chasm between these two topics.” While the peacebuilding literature more fully considers returnees’ place within peacebuilding programs (Ghani and Lockhart 2008; Belloni 2005), it has tended to focus on activities and dynamics within the country in question with little consideration of cross-border dynamics. Future research in this area could usefully consider how the prolonged presence of refugees in neighbouring countries may also affect peacebuilding. While there is increasing awareness of the importance of these links, especially at the national and local levels (Vorrath 2008), our understanding of the relationship between refugees and peacebuilding remains disparate and anecdotal. The nature of this relationship needs to be more critically and systematically interrogated in light of emerging peacebuilding research and contemporary cases. Likewise, additional research could consider how this relationship may be developed to pursue a more comprehensive understanding of both negative and positive peace, while considering how the provision of asylum may be recast as a peacebuilding activity. As the un engages with a growing number of peacebuilding programs, it is important to ensure that these efforts address the full range of issues that could both support and undermine peacebuilding efforts. At the same time, refugees now spend an average of seventeen years in exile. Given the range of challenges associated with reconciliation and justice in the context of such prolonged displacement, as detailed in the chapters of this volume, it is essential that the needs of the displaced – and their voices – are more present on the un’s peacebuilding agenda.

notes 1 This chapter is based on the preliminary findings of a research project entitled Refugees and Peacebuilding: Understanding Regional Dynamics, based at Carleton University, Ottawa, Canada, and supported by the Social Science and Humanities Research Council. This chapter draws on the author’s past research in this area (including Milner 2011a, 2011b, 2009). 2 In this chapter, I deal only with the question of refugees. For a discussion of the relationship between idps and recent developments in un peacebuilding policy and practice, see O’Neill (2009). Likewise, despite the important connections between transitional justice, reconciliation, and displacement (see Bradley 2012a), my focus here is specifically on the relationship between refugees and peacebuilding, including reconciliation.

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3 For a more detailed discussion of the potential links between transitional justice measures, reconciliation and durable solutions to displacement, see Duthie (this volume). 4 As of July 2014, there were six countries on the pbc’s agenda: Burundi, Central African Republic, Guinea, Guinea-Bissau, Sierra Leone, and Liberia (pbc 2014). At the same time, the Peacebuilding Fund was funding projects in twenty-six countries: Burundi, Central African Republic, Chad, Comoros, the Democratic Republic of the Congo, Côte d’Ivoire, Guinea, Guinea-Bissau, Guatemala, Haiti, Kenya, Kyrgyzstan, Lebanon, Liberia, Libya, Niger, Nepal, Papua New Guinea, Sierra Leone, Somalia, Sri Lanka, Sudan, South Sudan, Timor-Leste, Uganda, and Yemen (pbf 2014). 5 In 2007, the un Security Council passed country-specific resolutions on the situation in the following countries: Afghanistan, Bosnia and Herzegovina, Burundi, Central African Republic, Chad, Côte d’Ivoire, Cyprus, the Democratic Republic of the Congo, Eritrea, Ethiopia, Georgia, Haiti, Iraq, Liberia, Rwanda, Sierra Leone, Somalia, Sudan, Timor-Leste, and Western Sahara (unsc 2012). 6 For a more detailed discussion of coexistence programs in Bosnia and their contested implications for peacebuilding and reconciliation, see Haider (this volume). 7 On the importance of effectively addressing displaced persons’ housing, land, and property claims to peace and reconciliation, see Smit (this volume).

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2 Reconciliation and Reintegration: Transitional Justice and the Resolution of Displacement ROGER DU T HIE

Policymakers, practitioners, and researchers alike are increasingly recognizing that transitional justice can play a role in responding to displaced persons’ justice claims and in efforts to resolve displacement.1 In particular, justice measures are acknowledged to make a potential contribution to “durable solutions” to displacement, primarily by facilitating integration or reintegration processes and by fostering reconciliation. For instance, the Office of the un High Commissioner for Refugees (unhcr n.d.) suggests that, “as victims of human rights abuses,” displaced persons “have an interest in such activities, which will facilitate their process of re-integration.” The Inter-agency Standing Committee (iasc 2010, 7) Framework on Durable Solutions for Internally Displaced Persons indicates, “Finding durable solutions is about restoring the human rights of idps,” which “may entail the right to reparation, justice, truth and closure for past injustices through transitional justice or other appropriate measures.” The framework suggests that the provision of redress for the human rights abuses linked to displacement can have a “major impact” on efforts to resolve displacement. The failure to provide appropriate remedies to refugees and internally displaced persons (idps) can increase risk of further displacement, undermine reconciliation, and perpetuate grievances (iasc 2010, 43). In this chapter, I explore how transitional justice can contribute to durable solutions, focusing on how justice measures can facilitate displaced persons’ integration or reintegration – particularly in the long term – into communities and societies. In the first section, I discuss the notions

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of integration, reintegration, and reconciliation, and suggest that the success of these processes may require a response to past displacement-related human rights abuses. I then review some of the ways in which transitional justice measures can facilitate reintegration and foster reconciliation, and the challenges those measures may face in attempting to make such a contribution. I recognize that while efforts to promote durable solutions often focus on return, the dynamics at hand can apply in cases not just of return but also of local integration and resettlement. To conclude, I underline that the contribution of transitional justice to the resolution of displacement is likely to be modest, contingent, and most significant when part of a broader structural reform and development program. RE I NT E GR ATI ON A N D R E C ON C I L I ATI ON : T H E NE E D TO DE A L WI TH PA ST D I S P L AC E M E N T - R E L ATE D A B U S E S

Durable solutions for refugees include repatriation to the state of origin, local integration in the country of asylum, or resettlement in another country. Durable solutions for idps include return to and reintegration in the community of origin, local integration where they have sought shelter, or resettlement and integration elsewhere in their state. According to the iasc (2010, 1), idps’ displacement may be considered resolved when they “no longer have specific assistance and protection needs that are linked to their displacement and ... can enjoy their human rights without discrimination resulting from their displacement.” Whether refugees and idps return, remain where they lived while displaced, or resettle elsewhere, the process of integration and/or reintegration is essential to the resolution of displacement. unhcr suggests that reintegration has interlinked political, legal, economic, and social dimensions. As it relates to return, reintegration ultimately results in “the disappearance of differences in legal rights and duties between returnees and their compatriots and the equal access of returnees to services, productive assets and opportunities” (unhcr 2004, 5). Elsewhere, reintegration is depicted as “the complex process by which returnees are gradually reincorporated within the social, economic and cultural fabric of their communities, and their rights as citizens restored to them” (Tennant 2009, 307). Chimni (2003, 200–1) views reintegration as a process that enables refugees and idps to access increased legal, physical, social, and material security. Efforts to enable integration and reintegration are an element of “protection activities,” which strive to obtain “full respect for the rights of the individual in accordance with the letter

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and spirit of the relevant bodies of law, namely human rights law, international humanitarian law and refugee law” (icrc 2001; see also Williams 2012; Caparini 2012; Ferris 2011b). The term “reintegration” may erroneously suggest that refugees and idps were effectively integrated into their communities before they were uprooted, whereas in fact many were highly marginalized prior to their flight. Additionally, it is questionable to imply that refugees and idps are necessarily “outside” of society; especially when displacement is protracted, displaced persons may develop their own communities or form close links with their host communities. While they are displaced, many refugees and idps also maintain important ties with the communities, regions, and countries they left behind (Bradley, pers. comm. 2011). Hammond also questions assumptions about the desirability and possibility of returning to a particular place and regaining one’s life as it was before. Actual experiences of return, she argues, tend to involve efforts to establish oneself and one’s livelihood, “usually referred to as reintegration, even though it may be more of a creative process of innovation and developing of new strategies than a return to a pre-existing way of life” (Hammond 1999, 229, 230, 243; 2014, 499, 505). I use the terms integration and reintegration without presuming that refugees and idps previously enjoyed full integration in their communities, and employ them in reference to the process of integrating into specific local communities and/or society more generally. This focus on (re)integration is warranted because the concept is critical to the resolution of displacement, whether refugees and idps return, stay where they are, or resettle elsewhere. Further, it is by shaping (re)integration processes that transitional justice is arguably most likely to impact durable solutions: transitional justice seeks to recast relationships among citizens, and between citizens and state institutions. This means, for example, that its processes may affect the reintegration of returnees who are faced with the individuals and institutions that prompted their exile. Reintegration is a long-term, complex process that is of concern to actors in multiple fields. At one level, it involves “renewed social relationships” between groups and individuals (Haider 2010, 5, 7). For those who work to foster reconciliation in the aftermath of conflict and human rights abuses, this social element of reintegration is important. Like reintegration, definitions of reconciliation vary. For example, while Chimni (2003, 200–1) understands it as the consolidation of constructive social relations, including between conflicting parties, de Greiff (2008, 126–7) underlines that reconciliation includes a political element as well: post-

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conflict reconciliation suggests that citizens can trust their fellow citizens, “that they are sufficiently committed to the norms and values that motivate their ruling institutions, sufficiently confident that those who operate those institutions do so also on the basis of those norms and values, and sufficiently secure about their fellow citizens’ commitment to abide by these basic norms and values.” Where transitional justice mechanisms advance this kind of civic trust, they may contribute to reconciliation. In the context of durable solutions, reconciliation involves the promotion of equity between displaced persons and local residents, and of structures and mechanisms to promote confidence building and coexistence (unhcr 2004, 4). Bradley argues that a minimal level of reconciliation, “particularly non-violent coexistence and the establishment of a basic degree of trust and respect for rights between conflicted parties, is essential to the pursuit of durable solutions. In the absence of minimal trust and respect, displaced persons will be unable to participate in political life, equitably access services or exercise their rights.” The conflicted parties here include displaced persons, their former communities, and their state institutions (Bradley 2012a, 7, 12). A previously underemphasized aspect of reintegration has been its political side. According to Long, the reduction of “repatriation” to “return” undercut prior efforts to resolve refugees’ displacement. That is, the emphasis was on refugees’ physical return to particular geographic areas, rather than on their restoration as equal citizens (Long 2008, 5, 7, 22). Refugees’ understandable lack of confidence in their state’s capacity and willingness to uphold their rights represents a significant obstacle to repatriation. As Long (2010, 6, 9) argues, “repatriation is not just return,” rather, it “involves complex, long-term and gradual processes of reintegration and reconciliation.” Although idps do not have to re-enter their state, their relationship with their state has typically undergone a similar breakdown, which necessitates a similar process of repair (Tennant 2009, 309). Reintegration concerns different actors in displacement contexts. Humanitarian actors try to assist and protect refugees and idps while they are uprooted, and to support durable solutions to their displacement, but their contribution to long-term reintegration processes is inevitably limited. This is understandable, as humanitarian aid is intended to be a rapid, short-term response to critical needs. On their own, humanitarian responses cannot address the reintegration needs of large populations (Fagen 2011, 2). Development actors such as the United Nations Development Programme (undp) and the World Bank may work to facilitate displaced populations’ reintegra-

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tion as part of a focus on “early recovery” in post-conflict contexts, because their continued marginalization may undercut progress towards development goals in host, return, and resettlement communities (Tennant 2009, 318; Christensen and Harild 2009, 11–12). Achieving durable solutions for the displaced is also important for peacebuilders because return and reintegration can help to address the causes of conflict and prevent further displacement. Reintegration can allow people to contribute to the long-term processes of social rehabilitation, development, and legitimate governance, which may help to prevent the recurrence of conflict and displacement (Brookings 2007, 16, 43). Successful reintegration processes require the protection or restoration of (formerly) displaced persons’ human rights. Yet, integration and reintegration may require not just the present and future protection of rights, but effective responses to past abuses as well. “The process of successful reintegration,” writes Tennant (2009, 314, emphasis added), “encompasses the reincorporation of those who have been failed by the state within a reshaped national identity, a reckoning with the past, and the elaboration of laws and reform of institutions such as the security sector, judiciary, and human rights commissions.” As Bradley (2007, 9) argues, “the full restoration of refugees’ rights is not only a forward-looking process. It must also take into account past violations of refugee rights.” Recognizing and responding to past violations has important implications for the ways in which individuals, local communities, and broader societies experience reintegration. For example, in her investigation of the Guatemalan return movement, Ghanem concludes that individuals’ past experiences, including experiences of collective violence before and during the war, shaped the success of reintegration processes. “Even if, at a later stage, the external conditions of peace and security are restored in the home country,” Ghanem (2003, 19, 23, 24) suggests, “it cannot be taken for granted that upon return the returnee will have forgotten the cause of his flight and exile, and go back to the same blithe existence that characterized his/her life before the events that caused him/her to flee.” Returnees are confronted by their past, which can generate anger, fear, suspicion, resentment, and suffering, rendering reintegration a highly fraught undertaking. Particular groups of refugees and idps, such as girls and women, may be susceptible to double marginalization: beyond being forced from their homes, they are often sidelined in the justice processes that may be available in settlements and camps, and may encounter discrimination as survivors of gender-based violence (Hovil 2012c).

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Particularly in post-conflict contexts, tensions and resentments can emerge between the displaced and those who stayed in their communities. While both groups likely endured suffering, their struggles and experiences are often not mutually recognized or appreciated. “Feelings of betrayal on the part of those left behind are a serious impediment to the process of social repair,” Haider (2009, 99) indicates, “especially when those departing had knowledge of an impending assault on their town or village and said nothing. Return in postconflict societies requires such experiences to be overcome. Restoration of relationships, in turn, requires restoration of trust.”2 In Bosnia-Herzegovina, for example, many returnees to Sarajevo experienced considerable difficulties in reintegrating, including discrimination and resentment, which fostered feelings of alienation and marginalization and translated into difficulty finding work and housing. “Many returnees,” Stefansson (2004, 172) writes, felt “accused by the stayees of betraying Sarajevo and BiH by fleeing abroad.” This perception was perpetuated in part because refugees’ experiences were largely absent from media and public debate. Those who had remained were viewed as having a “monopoly on suffering,” making it “difficult for returnees to develop normal relations with stayees” (Stefansson 2004, 172; Hammond 2014, 501). In Guatemala, returnees and stayees experienced similar tensions. “While the returnees had faced traumatic flights and endured difficult conditions in Mexican refugee camps,” Oxfeld and Long observe, “they had escaped the daily control of the army and environment of terror.” Tensions in return communities led to conflict over issues including land claims, which in turn undermined reintegration and reconciliation prospects (Oxfeld and Long 2004, 13). Returnees may also have difficulty reintegrating into communities that were responsible for their displacement, as in Kenya, for example, after the post-electoral violence of 2007–08. “By virtue of having returned to communities that they perceive to have driven them out of their homes, destroyed their property and even killed their relatives,” report undp and ohchr (2011, 18), “returnees to habitual homes face monumental interpersonal and intercommunity reconciliation challenges.” The testimony of Kenyan idps points to these difficulties. “From my experience it is not possible at this time to reconcile,” said one. With regard to a recent voter registration, she continued: “I refused to take a voters card, I said ‘No, I am not taking one!’ My husband said ‘Why are you not taking one?’ I said that the voter’s card reminded me of the bad things of the past ... Let me stay; just let me stay in my house” (Mwakimako and Gona 2012, 53). Some idps did not see the point of voting: “After all, they feel that they were evicted

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because they chose to exercise their democratic right by voting for a candidate of their choice” (Mwakimako and Gona 2012, 54). More broadly, returnees are likely to have to face major political, economical, and social changes that have unfolded in their absence, often due to authoritarian rule or armed violence. For instance, in Argentina, the junta’s policies “produced a fear of any sort of association or gathering of people.” This resulted in a tendency to limit social interactions, a proclivity that continued to shape social life after the fall of the dictatorship. A returnee to Chile found the country steeped in authoritarian ideology. Such disconnect between past and present realities can “make identification with one’s home country difficult for the returnee” and can have important implications for reintegration (Ghanem 2003, 40–1). As the World Bank notes, when returnees reach their areas of origin, “these areas frequently have limited economic growth and few economic opportunities since they are characterized by the legacy of past conflict or by ongoing low level conflict” (Harild and Christensen 2010, 3). Whether or not displaced persons return home or settle elsewhere, the legacies of past violations may have significantly changed them and their relationships with their communities and society. Before moving on to discuss how transitional justice might contribute to the resolution of displacement, however, it is important to note that it is not just the discourse of reintegration that has been problematized but also that of durable solutions themselves. As Long (2014, 475) explains, “in recent years researchers, policymakers and practitioners have become increasingly concerned about the failures of traditional ‘durable solutions.’” Return, local integration, and resettlement can each fail for different reasons, meaning that displaced persons are often left without an available solution (unhcr 2012, 65). Refugees’ repatriation, for example, can be hindered by ongoing conflict, instability, weak or fragile state institutions, absence of the rule of law, resource scarcity, and lack of development in the country of origin; it may also not be desirable for those who have experienced prolonged periods of exile (Long 2014, 476, 481; Hammond 2014, 505; 1999, 228; unhcr 2012, 67, 68, 71, 78). Furthermore, major obstacles to local integration and resettlement can include state authorities’ reluctance toward such measures for political reasons and the lack of support at the host community level (Hovel 2014, 488, 492; Van Selm 2014, 520; unhcr 2012, 70). An important criticism of all three durable solutions is that displaced persons are not adequately involved in the process (unhcr 2012, 82), but at the same time the nature of some of these problems suggests that resolving displacement ultimately requires

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reframing durable solutions as “an integral part of a continuing long-term and imperfect development and peace-building process” (Long 2014, 478; unhcr 2012, 78–9). Some have proposed an increased role for mobility and migration as a more effective way of addressing displacement (Long 2014, 475; unhcr 2012, 83), but even these critics acknowledge that for the immediate future the focus of policymakers and governments is likely to remain on return (Long 2014, 485; Hammond 2014, 508). T RA NS I T I O NA L JU ST I C E M E A S U R E S A N D D U R A B L E S OLU TI ON S

From the individual to the national levels, the lingering effects of past violations can impede refugees’ and idps’ (re)integration, which can in turn negatively affect socio-economic development and the restoration of stability. However, the main actors dedicated to dealing with displacement issues do not typically address past violations and their legacies. Through their strategic application, transitional justice mechanisms can make a significant, if still modest, contribution to supporting durable solutions to displacement, particularly by advancing integration/reintegration processes. In this section, I look at how transitional justice efforts – including criminal justice, reparations, truth-telling, and justice-sensitive security sector reform – may facilitate the different aspects of reintegration, as well as some of the challenges that justice measures may face in this respect. Facilitating Reintegration To begin, at a broad level, transitional justice can indirectly shape refugees’ and idps’ reintegration. As de Greiff (2012) suggests, the various components of a comprehensive transitional justice policy should strive to recognize victims and to develop civic trust. In this connection, transitional justice can be understood as an attempt to engage and support citizens who have been excluded or marginalized. This process of integration, “of not just turning victims into citizens but thereby of strengthening inclusive citizenship,” (de Greiff 2009, 62) can affect refugees and idps as victims of past abuses, but can also affect the societies into which they seek to (re)integrate. By “reaffirming basic norms, transitional justice efforts can strengthen citizenship in general” (de Greiff 2009, 62; Hovil 2012a; Duthie 2012b, 48). This process of reaffirming social norms and repositioning marginalized citizens can have important implications for refugees and idps as populations that have typically been sidelined or abused. The displaced

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often endure not only the inevitable negative effects of armed conflict, but also purposeful rights violations motivated by discriminatory and even genocidal policies. For those displaced due to such policies, steps taken to acknowledge them as legitimate rights bearers and to build at least a degree of trust in their former neighbours and in official institutions may help to open up solutions to displacement. As Bradley suggests, the displaced are often among those with the least confidence in their state. A “just return” for such populations would entail repositioning returnees so that they are on an equal footing with their fellow citizens, and creating a new relationship of rights and duties between returnees and the state. Transitional justice measures would play a key role in making such “just return” and reintegration processes possible (Bradley 2013). On the political level, transitional justice can potentially support reintegration by amplifying the voices of the displaced and strengthening their ability to advance claims for their rights and for respect. For example, in Timor-Leste, displaced populations could participate in community reconciliation processes linked to the national truth commission. The participatory approach that was adopted and the integration of traditional customs “strengthened governance structures at the local level, which in turn facilitated reintegration and community reconstruction processes,” albeit modestly (Bradley 2012b, 102–3, citing Harris Rimmer 2010b, 4–6; 2010c, 38). When they are attuned to gender considerations, transitional justice mechanisms such as reparations can help to empower displaced women and challenge the assumption that they are passive victims or “beneficiaries” of aid (Hovil 2012b). On another, related level, transitional justice processes can help to advance reintegration because they often catalyze the development of civil society groups and the emergence of networks of civil society actors with a stake in efforts to redress past wrongs. In countries such as South Africa, Morocco, and Peru, transitional justice processes such as truth commissions and reparations programs have prompted civil society mobilization (de Greiff 2010). In countries such as Colombia, displaced persons – especially women – have been highly active in organizing themselves to participate in transitional justice process. As Meertens (2012, 12) observes: “For displaced women and their associations, ‘being a victim’ has acquired a new political and practical meaning, beyond the former status of ‘displaced people.’ They now want the government to go beyond the traditional parameters of humanitarian assistance. Women organized into victims’ groups in order to present their claims during the hearings with paramilitaries in the Justice and Peace process.”

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Truth-telling mechanisms may contribute to reintegration in a different but complementary way: by reducing tensions discussed above between those who fled and those who remained by acknowledging and validating different groups’ experiences. This process may support return, reintegration, and reconciliation processes (Eduardo Gonzalez, pers. comm.). For instance, Peru’s Truth and Reconciliation Commission in part improved popular understanding of displacement. Many idps who fled to cities were treated contemptuously by their neighbours, who assumed that because they were from regions dominated by the Shining Path, they were associated with “terrorism.” The Truth and Reconciliation Commission helped to de-stigmatize idps by demonstrating the challenges and sacrifices they faced (Barrantes Segura 2012). Tailored truth-telling processes may also support the reintegration of displaced persons complicit in low-level crimes. For example, Timor-Leste’s truth commission included specific mechanisms to encourage returns from refugee camps in West Timor: refugees who had perpetrated “lesser crimes” could participate in community reconciliation hearings facilitated under the commission’s auspices. At these sessions, perpetrators confessed their crimes, and community members identified appropriate remedies the offender could offer, opening the door for their return and reintegration (Järvinen 2004, 56). Past experiences suggest the provision of humanitarian assistance to displaced persons to the exclusion of other groups can generate tensions. In Guatemala, unhcr found that assistance to returnees “tended to set off the returnees from their non-repatriate neighbors and, in some cases, this caused resentment.” On the other hand, quick impact projects in some places contributed to reconciliation because the communities next to returnees believed that their needs were being considered as well (Worby 1999). Reintegration assistance is most effective, Tennant (2009, 315) argues, when it occurs on a community-wide basis and seeks to foster reconciliation. Development actors such as undp and the World Bank have also emphasized the importance of a balance among aid to different groups. undp (n.d., 5) observes that development programs covering exclusively certain categories of population, such as idps or demobilized combatants, are often unsustainable because they tend to alienate other community members; the World Bank warns of the risk of “perceived marginalization” if not all groups are targeted with assistance (Christensen and Harild 2009, 12). This suggests that in some cases, extending reparations to non-displaced victims may help to create a sense that different groups are being treated fairly, which is conducive to local-level reintegration and reconciliation.

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Reparations provided to the displaced may facilitate their reintegration more directly, particularly if other groups are also treated in a balanced and fair manner. Property restitution, compensation, or other benefits may support displaced persons’ re-engagement in community life, including through the creation or recreation of sustainable livelihoods (Van der Auweraert 2012a). In particular, many advocates argue that the restitution of housing, land, and property is a precondition for the sustainable resolution of displacement precisely because it contributes to reintegration (Williams 2012; Hilal 2012). Remedies such as restitution can “make valuable contributions towards increasing returnees’ security, while expanding the range of choices the refugee can make in the context of the return process” (Bradley 2013, 62, citing Williams 2006). The International Organization for Migration (2009, 1) suggests that in addition to restitution, reparations programs support the attainment of durable solutions, particularly voluntary return, by “recognizing that injustice has occurred and providing material remedies that assist the integration of displaced persons in their places of origin.” Particularly for female-headed households, restitution and compensation can make a critical contribution to formerly displaced families’ economic well-being (Hovil 2012b). Truth commissions can also contribute to reintegration processes by offering recommendations on how to tailor restitution and compensation programs to respond to displaced persons’ particular reintegration needs (Bradley 2012b). It should then be possible to ensure that programs target those needs. In Peru, for example, idps’ specific demands for assistance related to their experiences of displacement. These included psychological assistance and education, which many idp children had been unable to access fully (Barrantes Segura 2012). Collective reparations may be a relevant response when limited resources preclude, for example, the distribution of financial compensation to large numbers of displaced individuals. They may also be an appropriate response to the concerns of indigenous communities and other cohesive groups that experienced collective displacement. Working in cooperation with such communities, truth commissions can make important recommendations on the design and delivery of such collective remedies. They can also draw attention to the need to treat different groups, such as displaced persons and returning ex-combatants, in an equitable manner, recognizing that giving preferential treatment to particular groups can impede sustainable reintegration (Caparini 2012). As undp points out in relation to Kenya’s displacement situation, “the fact that idps still languish in transit sites, or continue to live in difficult circumstances without any form of reparation explains the bitter-

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ness and unwillingness of most returnees to forgive the people who had violated them. One cannot realistically expect reconciliation in such conditions” (undp-ohchr 2011, 17). Truth commissions can help draw attention to these concerns and create pressure for more proactive responses to them. Safety and security are essential to effective and sustainable reintegration. Transitional justice mechanisms, especially criminal justice and justicesensitive security sector reform, can play an important, if under-examined, role in bolstering displaced persons’ safety and security, particularly in the context of efforts to resolve displacement. In addition, these measures can make reintegration more sustainable by helping to prevent repetition of the violations at the root of displacement (Caparini 2012; Andreu-Guzmán 2012). Prosecutions and vetting can advance this goal by helping to dismantle the institutional structures responsible for abuses, including those that led to displacement (de Greiff 2010). Disabling criminal networks – including those reaching public officials and institutions – involved in causing or facilitating displacement may foster a greater sense of security among refugees, idps, and returnees. This is suggested by experiences in Liberia, Timor-Leste, and Bosnia, where return processes “came up against deeply felt sentiments on the part of many that they could not return to a situation where the people directly responsible for the deaths of their relatives were living in the same village” (Feller 2009, 93). In Colombia, the representative of the secretary-general on the human rights of internally displaced persons (2007, para. 57) underlined the connection between low levels of idp returns and demobilized paramilitaries’ impunity: “Where the perpetrators of forced displacement continue to stay in the areas where they have committed their crimes, people are wary of returning, since they do not feel safe.” Prosecuting individuals whose actions lead to displacement can be a “significant expression of state responsibility,” and “may serve to reassure returnees that the state has reformed” (Bradley 2005, 16). Trials may help enable sustainable return and reintegration in various ways, such as by removing offenders from local communities, thus augmenting returnees’ sense of security, and more broadly by contributing to the re-establishment of the rule of law. Although facilitating returns was not one of its explicit goals, the International Criminal Tribunal for the Former Yugoslavia arguably supported return and reintegration in Bosnia in two main ways: first, some Bosnians felt safer in light of sustained international scrutiny of leaders’ actions; second, some indictments prevented perpetrators from being able to actively deter returns. “When combined

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with other favorable factors,” Orentlicher (2010, 79–80, 85) writes, “the removal of notorious war criminals can contribute to displaced persons’ willingness to return home and probably has had this effect, albeit to a limited extent.” Criminal prosecutions directly affect only a small number of individuals. The reform of security institutions, including the military and the police, may therefore be an even more significant element shaping reintegration processes. The contributions security sector reform (ssr) can make will likely be augmented if they are undertaken in a “justice-sensitive” manner – that is, if the process focuses on principles of legitimacy, integrity, empowerment, and representation, and strives to prevent the repetition of human rights violations by ousting perpetrators through vetting processes. If “previous structures of past leadership that threatened those who left are still in place,” then “returning minorities may feel at risk, and rightfully so” (Fagen 2011, 11). The “presence of armed groups, whether belonging to regular forces or militias, may create a serious obstacle to return and may be considered as a threat by potential returnees due to their past behavior, ethnic origin or lack of discipline. This is especially true where these forces have caused the displacement suffered by returnees, for example in Colombia” (Brookings 2007, 44–5). Similarly, upon their return many displaced Iraqis discovered that those who caused their exile were now responsible for neighbourhood security, as army or policy officers or members of Awakening Councils (Isser and Van der Auweraert 2009, 13). Justice-sensitive ssr can support refugees’ and idps’ reintegration in various ways. For instance, justice-sensitive ssr can upgrade the physical protection available to returnees, and strengthen the rule of law by helping to ensure that retrained and newly recruited officers work with integrity and are held accountable for their actions. This may lead to a more stable environment conducive to reconstruction and the pursuit of reconciliation between returnees and the local population. Justicesensitive ssr processes can also increase returnees’ perception of the security sector’s legitimacy. In turn, this may encourage returnees to have a greater sense of empowerment and ownership in relation to security institutions, and increase their readiness to join police and military forces. When police forces represent minority returnees and police officers speak their language, returnees are assured that their concerns are more likely to be understood and respected (England 2012). Although attempts to guarantee mixed representation in Kosovo’s security sector were not primarily aimed at enabling displaced persons’ reintegration, these efforts made an

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indirect contribution to this process by supporting reconciliation and responding to grievances about representation in public institutions (England 2012). Specific interventions can make the most of these potential contributions to the reintegration of displaced persons. For example, the un’s police reform initiative in post-war Bosnia included a recruitment policy that specifically aimed to attract minority recruits and support the minority return process more broadly (see Collantes Celador 2005). One group that is not usually considered from a displacement perspective in the aftermath of conflict is children associated with armed groups, in both combatant and non-combatant roles. However, children are often illegally recruited into armed groups directly from refugee and idp camps, where large numbers of children often congregate, typically with little protection (Achvarina and Reich 2006). If these children are considered as victims of displacement, illegal recruitment, and all of the additional abuses that can go along with these, the need for their effective reintegration is all the more apparent (see Mooney 2007). From a justice and reconciliation perspective, the situation can be tricky because child soldiers may have committed atrocities during conflict and therefore can qualify as victims and perpetrators. Nevertheless, research suggests that transitional justice measures can make a positive contribution to the reintegration of children associated with armed groups primarily through their impact on receiving communities – that is, in minimizing the children’s social exclusion by reducing the injustice and resentment among community members and victims (Duthie and Specht 2009). Challenges While transitional justice measures may in certain contexts facilitate reintegration and reconciliation, they will likely face certain challenges in displacement contexts. For example, limitations on the number of victims who benefit from transitional justice processes (which can result from both resource constraints and political decisions) may have a detrimental effect on reintegration: those who feel they were victimized but do not receive the recognition as victims that other groups do may feel increased dissatisfaction. Refugees and idps may feel doubly aggrieved if redress processes do not specifically recognize their concerns. For instance, in Colombia, some idps feel they have been wronged twice over – first because they were arbitrarily uprooted, and second because other victims, such as relatives of the disappeared, have received recognition and com-

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pensation that they have been historically denied (Ferris, pers. comm. 2011). Moreover, the catalyzing effect that transitional justice measures may have on civil society actors representing the displaced will likely depend on the level of organization among the displaced population to begin with. For example, Guatemalan refugees in Mexico capitalized on their time outside the country to organize themselves and negotiate their collective return with the government. Having already “created a precedent by their forthright manner of recounting their experiences,” various returnees were subsequently able to participate in the national truth commission (Worby 1999). However, many displaced groups do not achieve such remarkable organization. In Liberia, for instance, the truth commission concertedly reached out to diaspora members including refugees, but did not actively engage idps, in large part because their civil society mobilization was almost entirely absent (Dabo 2012). This lack of organization also complicated civil society attempts to voice displaced persons’ interests and ssr concerns (England 2012). Another important factor is refugee and idp populations’ differing levels of visibility. If their country of origin is under the rule of a repressive regime, refugees may find more political space and freedom to organize in the host country. Indeed, refugees, particularly those in camps, are often more “visible” than idps and returnees; as Ghanem (2003, 13) points out, once refugees “return to their country they are less visible, as they officially lose their refugee status and become part of the population again.” Yet in some instances the reverse is true. In Colombia, for example, idp organizations are now prominent in transitional justice debates; refugees in Venezuela and Panama are much less visible (Van der Auweraert 2012a). When refugees and idps are not organized and in the public eye, they are less likely to actively participate in transitional justice processes. Displaced persons interested in organizing themselves, including to participate in transitional justice processes, often encounter obstacles that may complicate their efforts, such as geographic dispersion; linguistic differences; lack of education and literacy skills; lack of documentation; inadequate financial resources; mistrust; and fear of retribution. Where displaced persons are able to overcome these obstacles, the skills and capacities they may gain through the process may also serve them in the longer term, facilitating their reconciliation by equipping them to participate actively and effectively in public debates. The policies and practices of transitional justice mechanisms themselves can catalyze or hinder organization and networking among displaced groups. Organization and

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mobilization processes are much more likely to develop if transitional justice bodies specifically reach out to the displaced and attempt to understand and address their concerns. In Turkey, for instance, idps were not consulted at all on the Compensation Law’s implementation. Consequently, this initiative has not catalyzed organization efforts; rather, most civil society groups have disregarded it (Kurban 2012). The development of displaced persons’ networks in response to the initiation of transitional justice processes may also have negative effects. Competition or tensions can emerge when groups with different interests organize themselves to participate in transitional justice processes; this can erode trust and undercut reconciliation. In countries such as Colombia, the displaced may have superior organizational capacities compared to other groups of victims. This may exacerbate the perception that international attention is concentrated only on idps, creating “a layer of resentment and anger amongst other vulnerable groups,” as well as “victimcompetition” (Van der Auweraert 2012b). Participation in transitional justice processes can also at times increase the physical risk to displaced persons. With displacement crises often protracted and resulting from entrenched conflicts, it is not always desirable to wait until the conflict is fully resolved to begin to facilitate durable solutions. It is during ongoing conflict and displacement that efforts to pursue accountability and redress can be particularly dangerous. In Colombia, for example, where compensation and restitution programs have catalyzed displaced victims’ mobilization, members of these organizations “have been threatened and persecuted by all parties to the conflict. Their leaders have been tortured and killed. idp organizations are systematically targeted, particularly when their activities are connected to processes of restitution of lost property, especially land” (Vidal López 2012, 11–12). From 2005 to 2011, fifty leaders of idp organizations were killed in Colombia (Vidal López 2012). The insecurity created by targeting those mobilizing around the interests of the displaced may have a negative overall effect on integration and reintegration. As mentioned above, reparations to displaced persons may also face resistance or incite competition. Turkey’s Compensation Law has, for example, been highly divisive because many of those who have applied for redress have been rejected, and those who have been accepted have received different levels of compensation, creating a “hierarchy of victims” (Kurban 2012). Truth commission recommendations, particularly those that pertain to financial reparations, may also generate competition; if they are not implemented, this too can “generate resentment that may

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undermine reintegration and reconciliation efforts” (Bradley 2012b; Hammond 2014, 505). In certain instances, efforts have been made to sidestep concerns about competition. Following the displacement crisis in Timor in 2006, for example, the government extended financial remedies to the displaced, but the term “reparations” was avoided in part because of the fear that it would lead to divisions, given that the victims of human rights abuses in previous periods had not been awarded compensation (Van der Auweraert 2012a, 2012b). Restitution and compensation for displaced persons in most situations is not achieved (Christensen and Harild 2009, 14). This is due not only to the challenges addressed above, but also to factors such as inadequate government cooperation in redress processes and the difficulties associated with dealing with large numbers of potential claimants. For instance, in Bosnia, many leaders and administrators who were complicit in the country’s ethnic cleansing retained power after the war and undermined early returns by refusing to cooperate in the restitution process (Haider 2009, 94). In many mass displacement situations, resource limitations and practical constraints preclude giving material benefits such as compensation to refugees and idps as a form of redress for displacement itself (Van der Auweraert 2012b). Yet even in the absence of extensive resources, the careful calibration of transitional justice measures can help ensure that they contribute, if in a limited manner, to refugees’ and idps’ integration or reintegration. The Relevance of Transitional Justice to Local Integration and Resettlement Many of the cases highlighted above explore the relevance of transitional justice processes to refugees’ and idps’ return and reintegration. However, transitional justice measures can also support local integration and resettlement processes. Whether refugees and idps return, locally integrate, or resettle, the resolution of their displacement will inevitably involve political, security, and socio-economic aspects, many of which are connected to the goals of transitional justice processes. Transitional justice processes seek to address not only state-citizen relationships, but also the relationships between citizens and groups. For example, idps who flee rural areas to cities where they plan to stay may face discriminatory attitudes that undermine their local integration and exclude them from political processes. In general, the factors that shape successful local integration include how host community members understand the causes of displacement; how they

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perceive the displaced population (e.g., as responsible actors or victims of conflict); and displaced persons’ attitudes, such as their perceptions of the host community and its role in the conflict and in the displacement situation (Ferris 2011a, 12). As I have discussed, transitional justice processes may address these factors both directly and indirectly. Although return is often states’ and humanitarian agencies’ “preferred” solution to displacement, it is now acknowledged that return is not always viable. Indeed, the increasingly protracted nature of displacement and broader social processes including urbanization3 make a focus on return unadvisable (Long 2010, 5; Brookings-idmc 2011; Barrantes Segura 2012; Williams 2012). In many cases, those displaced from the countryside move to cities where they intend to remain but where their particular experiences and justice concerns go unacknowledged. As Fagen (2011, 3) reflects, in such instances, “their particular reintegration needs, derived from consequences of their forced displacement and losses, are neither recognized nor addressed, leaving them vulnerable to abuse, subject to violence, and feeling that they have suffered injustice.” Therefore, it is important to emphasize that transitional justice process are not only relevant in the context of return movements, and should enhance rather than restrict the range of choices available to refugees and idps regarding the resolution of their displacement.4 Transitional justice processes should support the notion of voluntary return, recognizing that a key element of redress for refugees and idps may be the opportunity to choose a solution to their predicament (Haider 2010, 1). “Part of the crime of forced migration is that it robs people of the chance to make choices about where and how they will live,” Bradley (2007, 9) argues. “Focusing on choice as a key part of a dignified return is therefore itself a kind of redress.” Compensation and property restitution are the remedies that can most immediately support refugees’ and idps’ integration outside their original communities. As the World Bank has recognized, restitution can provide refugees and idps with an important infusion of capital, which they can draw on to establish new homes and livelihoods elsewhere (Christensen and Harild 2009, 14). Fagen (2011, 13) concurs: “Without surrendering their hopes of an eventual return to their original homes, such returnees probably will accept alternative locations if conditions are favorable. This is more likely if they are treated justly and are able to receive some form of compensation for their losses.” In Bosnia, refugees and idps were able to reclaim their properties, irrespective of whether they returned. This equipped them with “income and assets (through sale, rental, or exchange

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of restituted properties) that could help them with local integration elsewhere” (Williams 2012). Hilal suggests that a related, non-coercive, rightsbased approach that delinks restitution and return could support Palestinian refugees’ resettlement outside Israel, or enable them to return with the option of settling in cities. This could “empower refugee families to make decisions regarding return without sacrificing all forms of justice” (Hilal 2012). Yet in many instances decoupling return and restitution may be problematic due to legal or political circumstances. Under many customary tenure systems, for example, the right to land is often integrally linked to its active use (McCallin 2012). In addition to restitution and reparations, other remedies may also promote integration. Peru’s truth commission, for example, helped to destigmatize internal displacement, which in turn facilitated idps’ integration into the urban communities where they settled (Barrantes Segura 2012). Host countries’ justice-sensitive ssr processes may also encourage local integration. For example, the ssr efforts in Chad strived to improve the protection of refugees from Darfur, which may in turn have enabled them to make freer choices concerning durable solutions to displacement (England 2012; O’Neill 2012). The Chad example, however, raises a question about transitional justice measures’ meaningfulness and impact when the actor implementing those measures is not the state responsible for displacement. The provision of security through prosecutions or justice-sensitive ssr, or of material assistance through compensation programs, may help people to integrate or reintegrate, regardless of the source of that provision, in the same way that humanitarian assistance can facilitate durable solutions. International Criminal Tribunal for the Former Yugoslavia prosecutions have helped some returnees in the former Yugoslavia feel safer and more willing to return home, even though the tribunal is not a state actor. However, the social and political elements of integration and reintegration are less likely to be affected by the actions of such a non-state actor, or by a state other than the state of origin unless the mechanism being implemented involves a specific acknowledgment of some degree of responsibility for the displacement. Such an acknowledgment will likely increase the extent to which trust is fostered between a state and integrating or resettling refugees. As refugee crises often involve displaced populations, armed actors, and abuses that spill across borders and become regional problems, regional or cross-border approaches to transitional justice would therefore be potentially beneficial from the perspective of the displaced, but to date examples of such approaches are few (see Ross and Sriram 2012).

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In this chapter, I have explored some of the ways in which transitional justice can support the resolution of displacement, particularly by advancing integration, reintegration, and reconciliation. These processes are all longterm and complex. It is therefore probable that the contributions of transitional justice will be most evident years after, although some impact may be visible in the near term as well. On a broad level, transitional justice can support (re)integration and reconciliation by recognizing victims and enhancing civic trust among citizens and between citizens and the state (de Greiff 2012). It can also shape reintegration processes more directly, including by repositioning the formerly displaced as equal members of society, and by addressing some elements of their economic and security concerns. These dynamics can be relevant for return, local integration, and resettlement. Various considerations will determine the extent to which transitional justice can support reintegration and reconciliation. As scholars such as Hovil (2012b) show, the societies into which displaced persons (re)integrate may not have ever been even minimally just, particularly in terms of gender equality. Efforts to do justice in the post-conflict context will therefore also have to deal with pre-existing problems such as pervasive discrimination. While this chapter cannot address the broad question of the role of transitional justice in supporting societies’ transformation, it is evident that transitional justice measures can make at most a modest contribution in this regard. As Williams (2012) points out, a corrective approach to remedying the property rights violations associated with displacement would focus on restoring land to its owners; in contrast, an approach focused on development or distributive justice would promote the broader transformation of social and legal relations. If refugees and idps are to have the opportunity to (re)integrate into truly peaceful and just societies, this would entail an ambitious reform and development program that is well beyond the scope of what most transitional justice processes seek to achieve. Despite their limitations, with careful calibration transitional justice measures can make a small but significant contribution to supporting the integration or reintegration of the displaced. In so doing, they can signal that the state is evolving, however gradually, into the type of society that respects the rights of everyone, into which the displaced may truly want to reintegrate.

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notes 1 For a more detailed discussion of some of the issues addressed in this chapter, see Duthie (2012). Many thanks to Megan Bradley, Bryce Campbell, Marina Caparini, Elizabeth Ferris, Pablo de Greiff, and Lucy Hovil for their comments on previous versions. 2 See Haider (this volume) for a more detailed discussion of the dynamics of return, reintegration, and coexistence in Bosnia. 3 In Peru, those who sought refuge in large cities tended to stay there; those who were closer to home returned more often. 4 Arguably one of the main problems with the Pinheiro Principles is that it focuses unduly on return over other solutions to displacement. See un Doc. E/CN.4/Sub.2/2005/17 (2005), and Williams (2012) for a discussion.

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3 Property Rights and Public Interests: Restitution, Transitional Justice, and Post-conflict Reconciliation ANNEKE SMIT

In this chapter, I consider the success of housing, land, and property (hlp) restitution in contributing to reconciliation processes in post-conflict spaces characterized by displacement. hlp restitution has been viewed in recent decades as a critical tool of post-conflict transitional justice, and one with the potential to benefit refugees and internally displaced persons (idps), groups who other forms of transitional justice have often excluded (Bradley 2012a; Duthie 2011). It is inherently reparative in nature in that it seeks to right past wrongs (Williams 2012). Yet unlike some other forms of reparative transitional justice, property issue remedies are also highly practical because secure property rights may provide shelter, security, and the possibility of making one’s living. The way in which the international community views property restitution has changed markedly over a relatively short span of time. It went from seeing it, in the mid-1990s, largely as a means through which to encourage refugee and idp returns (in the era of the international community’s involvement in Bosnia-Herzegovina, for example), to justifying it as a stand-alone right independent of decisions about return by the time the first round of work on housing and property restitution was being completed in Kosovo in the early 2000s (Philpott 2006; Williams 2007, 49–50). Beyond that, however, recent years have shown that restitution may be best viewed as one process among many in effectively addressing post-conflict property rights. The deprivation of refugees’ and idps’ housing and property rights is not the only property-related injustice committed prior to, during, and after most conflicts. Land dis-

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tribution and redistribution processes have deprived some people of their lands. Others never had access to land in the first place. Some have been excluded from land privatization processes on discriminatory bases, including their status as refugees or idps. Important transformations of property distribution and legal systems governing property rights may be called for in the name of development. Some take temporary shelter during or after a conflict, and find it acquires a sense of permanence over time though they do not hold formally recognized rights over the property. Lastly, the very structure of urban areas, including public spaces, may require transformation in the post-conflict context in order to provide security for all residents and opportunities for meaningful interaction between previously warring parties. All of these issues are important in re-crafting the legal, political, and economic foudation on which a society may rebuild itself in the post-conflict phase, and especially in determining solutions to displacement for refugees and idps. Adjudicating competing property claims is already a difficult task when restitution is viewed as a stand-alone process of transitional justice. But balancing these considerations with the larger goal of post-conflict reconciliation is even trickier. With nearly two decades of international community experience and the emergence of non-binding un principles on post-conflict hlp restitution, some broad lessons on the links between restitution and reconciliation are coming into focus. My primary argument in this chapter is that hlp restitution, and in particular restitution in kind (the actual return of one’s pre-conflict property), should be considered just one tool in the toolkit to address hlp rights, and transitional justice, after conflict. To justify the immense investments of funds, time, and expertise that property restitution demands, individual property restitution should occur only when it can contribute to the larger goals of post-conflict reconciliation and the rebuilding (economic, political, and social) of a broken society. Such restitution requires that peacebuilders recognize that numerous types of property injustices have typically been committed before and during the conflict, and that refugees and idps are not their only victims. They must also recognize that difficult decisions must sometimes be made in the name of reconciliation and the post-conflict public interest, and that such decisions may sometimes interfere with the return of pre-conflict property rights to their “original” owners. There is no universally accepted definition of reconciliation, but Sarkin’s (2008, 13) is a useful one:

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Generally speaking, reconciliation describes a process of coming together. However, the term carries a normative – almost moral – aspect as well. That is to say, reconciliation is the unification (or reunification) of things destined to be together ... a return to or recreation of the status quo ante, whether real or imagined. For many observers, reconciliation is exemplified by the question of how warravaged societies return to a modicum of normality after neighbors have endured and perpetrated against one another crimes of unspeakable inhumanity. Thus, in this chapter I confront how peacebuilders may address property rights issues in a way that allows a coming together and a return to a modicum of normality for all affected by the conflict. To begin, I outline briefly the relatively recent international legal and policy developments with respect to the rights to hlp restitution and return, including the adoption of the 2005 un Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles), which arguably reflect and consolidate the international legal and normative framework on housing and property restitution (Pinheiro 2005). In the remainder of the chapter, I advance the growing body of work that critically engages with the Pinheiro Principles by addressing several ways in which they may conflict with the larger goal of post-conflict reconciliation. I advocate for a continued application of the Pinheiro Principles, but in a nuanced way that recognizes the delicate relationship between managing complex hlp issues and recrafting post-conflict societies. I argue that for property-related transitional justice to be effective and worth the large sums of money and other resources it demands, it must contribute to a broader positive outcome for society as a whole as well, most importantly in the form of reconciliation. Of course, in numerous conflict-divided societies, forms of land ownership other than private property are common. Like private ownership, traditional and communal ownership are also threatened during armed conflict. While these forms of ownership, and justice processes to address wrongs committed against those who hold such rights, are an equally important subject for study, in the present chapter I focus on private property rights.

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THE P I N HE I RO P R I N C I P L E S

Enormous strides have been made in recent decades with respect to the international legal framework on post-conflict hlp restitution (Smit 2012, ch. 1; Williams 2012). Following years of preparatory work, the then-un Sub-committee on the Protection and Promotion of Human Rights adopted the Pinheiro Principles in 2005. Since then, they have dominated debate on hlp restitution. They are the “first consolidated global standard” on the treatment of post-conflict property rights and were seen at the time of their endorsement by the sub-committee as a groundbreaking development in standard-setting on transitional justice (Centre on Housing Rights and Evictions 2005). The path from international experiences with restitution processes following conflicts, including those in Bosnia-Herzegovina and Kosovo, to the Pinheiro Principles’ development is clear. The Pinheiro Principles recognize that “all refugees and displaced persons have a right to voluntary return, in safety and dignity, to their original or former habitual homes and lands” (Pinheiro 2005, preamble). Relatedly, they clearly focus on restitution in kind (or “in rem”) of the property right held prior to the conflict, however that right may be defined (i.e., whichever date is chosen for determination of pre-conflict rights, and whichever pre-conflict rights are to be restituted). Principle 2 states in part, “All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived.” Other remedies, including but not limited to compensation for lost property, are possible, but are clearly subordinated in the Pinheiro Principles to return of the actual property. For example, principle 21.1 accepts a role for compensation under very limited circumstances, and states in part: “States shall ... ensure that the remedy of compensation is only used when the remedy of restitution is not factually possible, or when the injured party knowingly and voluntarily accepts compensation in lieu of restitution, or when the terms of a negotiated peace settlement provide for a combination of restitution and compensation.” While using compensation is possible, actually doing so is to be the exception. Principle 21.2 goes on to state that the factual impossibility criteria must be very narrowly applied. Further, while the Pinheiro Principles do address briefly issues of communal or customarily held hlp, they focus on the provision of an individual remedy for the deprivation of private property rights as a result of armed conflict. The document references more community-based issues, such as economic development, only briefly (Pinheiro 2005, 4).

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Since their inception, the Pinheiro Principles have been discussed and publicized widely. While they are far from the only international law instrument to address post-conflict property rights, they are the most comprehensive and arguably the most referenced.1 Their endorsement represented a substantial and hard-won contribution to a key area of post-conflict justice and solutions to displacement. Given this, they initially faced only muted, if any, criticism. However, as years pass and experience in working with the standard grows, so do realizations that the Pinheiro Principles’ bright-line approach to the adjudication of property rights in the post-conflict sphere will in and of itself in most cases not lead to a situation in which all property rights are certain and property or land-based tensions or conflict are eradicated. P RO P E RT Y RE STI T U TI ON A N D C HA L L E N G E S TO R E C ON C I L I ATI ON

There are funding, evidentiary, technical, and access challenges in establishing effective hlp rights restitution mechanisms, and some of these have prevented the Pinheiro Principles’ successful implementation (Rosandhaug and Cordial 2009; Cantor 2011). However, not all of the problems with the Pinheiro Principles’ framework are logistical; some are philosophical. In particular, their approach to hlp rights has failed to contribute successfully to larger transitional justice processes in post-conflict states (if, indeed, justice can be achieved in the post-conflict sphere, as Bradley touches upon in the introduction to this volume). More broadly, critiques of Pinheiro-style restitution emphasize its limited contributions to postconflict reconciliation processes (Ballard 2010; Paglione 2008). If, as many contributors to this volume suggest, it is possible for transitional justice for refugees and idps to contribute, albeit modestly, to post-conflict reconciliation, then the failure of hlp-related transitional justice processes informed by the Pinheiro Principles may also have a negative effect on reconciliation. In the remainder of this chapter, I identify several of these failures and the places where hlp restitution pushes up against other critical aspects of the reconciliation process, in an effort to find a balance between what restitution may do well and where it should be ceded to other policies or approaches to addressing property issues in the post-conflict sphere. HLP Restitution Mechanisms’ Failure to Adjudicate All Types of Property-Related Disputes One perhaps unavoidable challenge of post-conflict hlp restitution is that in most cases, for funding and logistical reasons, one or some sets of

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property rights or types of property are privileged over others. For example, in Kosovo the Housing and Property Directorate (hpd) adjudicated residential property claims far ahead of agricultural and commercial property, which meant that while idps might have had houses to which to return, they could not generally access the tools of their livelihoods to support themselves and their families afterward (Smit 2006; Arraiza and Moratti 2009). Likewise, while the Pinheiro Principles promote redress for property rights deprivations resulting from armed conflict, such redress may be done without consideration of the perhaps decades or generations of property or land-based disputes that fed into the war. As Pantuliano and Elhawary (2009, 1–2) write: “Territorial acquisition and defence play a central role in conflict. Belligerents often seek to control land or the natural resources that lie beneath it by dispossessing the populations that live on or use that land. Land dispossession has often been the cause of rural resistance and insurrection. In other contexts, local tensions around access to and control over land have been manipulated politically to co-opt people into national conflicts.” The failure to adjudicate the land disputes or dispossessions that may have been the underlying cause of the armed conflict reduces the effectiveness or perceived legitimacy of hlp restitution processes. A related issue is that because restitution processes are often necessarily (given funding, expertise, and other logistical constraints) narrowly constrained, they may have a limited ability to affect post-conflict economic development. While some actors, in particular western governments providing funding and legal expertise for restitution programs, have viewed hlp restitution as a critical element of economic development for postconflict societies (Ballard 2010, 465), property restitution on its own will be insufficient to create the economic conditions necessary to go forward. Restitution will only gainfully contribute to reconciliation and economic growth if it is appropriately contextualized within and supported by other development interventions (Pinheiro 2005, 4; Stefansson 2006, 120). It may also be the case that in the name of larger-scale economic development, property restitution (and the funds and administrative structures necessary to implement it) should sometimes be deprioritized. As Attanasio and Sánchez Leon (2012, 51–2) argue, in the post-conflict sphere, not only the restitution but sometimes also the redistribution of land is necessary to achieve both reconciliation and economic development; they call the failure of the Pinheiro Principles to address land redistribution issues their “primary apparent problem.” To single out only one set of property rights for restoration through an hlp restitution process ignores

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the complicated relationship of people and politics to land and the complexities of creating or recreating the conditions necessary for a functioning economy. Issues of Legitimacy and Building a Culture of Respect for Property Rights Further, the creation of the types of internationalized hlp restitution mechanisms seen in Bosnia-Herzegovina, Kosovo, and even Iraq in the last two decades may intensify tensions between international governing bodies and local government in the post-conflict sphere. Implementation of the Pinheiro Principles to remedy widespread forced displacement may often necessarily involve international oversight over, or implementation of, the restitution process. Yet this may frustrate grassroots legal reform and rule of law development processes. As Ballard (2010, 495–6) notes, “while international authority may be justified to prevent local actors from co-opting restitution for partisan political ends, international orchestration likely does nothing to enhance state legitimacy or build democratic institutions.” The local population may also not see internationalized mechanisms’ operations as legitimate. This is exacerbated by the fact that such mechanisms often have to make difficult choices about which property rights conflicts to preference. As a result, mechanisms that promise restitution in kind for pre-conflict property rights may not be shown the respect or confidence to which their creators aspired. They risk igniting new conflict rather than encouraging reconciliation, as those excluded from restitution processes experience that exclusion as a new injustice. Beyond that, hlp restitution mechanisms that are not integrated into a broader process of land reform and land-based justice may in fact detract from the development of a culture of respect for property rights. The same may be said for their impact on respect for the rule of law more broadly, meant to be one of the goals of a Pinheiro-style restitution process and identified as a critical element of reconciliation processes (Smit 2006; unhcr 2008). Tensions between Pre- and Post-conflict Property Claims The Pinheiro Principles framework also inadequately addresses secondary occupants’ justice claims, despite providing a potentially powerful counterpoint to the claims of “pre-conflict owners.” Principle 17 addresses secondary occupants’ rights and states that due process rights and other procedural safeguards must be in place, including when secondary occupiers

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are evicted from the occupied property. However, principle 17.2 affirms that occupiers’ rights do not include actual property rights over the occupied property, regardless of length of occupation: “States should ensure that the safeguards of due process extended to secondary occupants do not prejudice the rights of legitimate owners, tenants and other rights holders to repossess the housing, land and property in question in a just and timely manner.” Secondary occupants, many forcibly displaced themselves, have often had long (often informal) tenures in contested properties that they feel should give rise to rights in the property they inhabit (Smit 2012; Dumper this volume). Further, as Paglione (2008) argues, a new social fabric may have developed in the community of origin in the years during and after the conflict, while refugees and idps were elsewhere. While the justice considerations of allowing unlawful possessors to remain in displaced persons’ homes cannot be ignored, rebuilding social and economic ties between members of divided communities is no less important to the reconciliation process. The forcible eviction of post-war possessors may in some cases be necessary to achieve narrowly defined “justice” for pre-war rights holders, but may also create new upheavals which will take time to heal. This tension has no easy solution, but must be addressed on a caseby-case basis. Stefansson (2006) writes at length about restitution’s role in the (re-) making of “home” for refugees and idps in the post-war context. As he argues, while hlp restitution and the opportunity to return to inhabit one’s pre-war residence (the “small home”) has been seen as critical to the return and reconciliation process, it is just one part. In the absence of other factors including economic stability, a stable security environment, access to schools and medical care, and a strong community (“big home” factors), refugees and idps may not choose to return, at least on a longterm basis. This means that long-term but informal occupiers who have built up livelihoods and connections in their host communities may be evicted in favour of refugees and idps who may never return to inhabit the evacuated property. Occupiers forced to leave, sometimes after several years of residency, may react emotionally (Bilefsky 2008). Evictions of post-war occupants of land and other property, either through individual restitution decisions or larger-scale land redistribution programs, may create political destabilization. Again, this may reignite the conflict rather than helping to move beyond it (Takeuchi 2014). As Unruh (2004) argues, a more balanced approach to adjudicating property rights after armed conflict will better support the rebuilding process: “The fundamental

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components of the problem during a peace process include both an awareness of the different sets of tenure issues and their role in conflict and recovery, and the need to embrace an approach that engages local level post-conflict realities as building blocks in new property rights laws.” Balancing the property rights of those who were deprived during the conflict with the claims of those (often victims of the conflict themselves) who have become long-term occupiers of the properties in question will allow the reconciliation process to build both on pre-existing and newly developing social networks and communities. The Failure of Pinheiro-Style Restitution to Recognize All Three Durable Solutions Relatedly, Pinheiro-style restitution fails to recognize the shifting face of refugee and idp assistance and in particular fails to ground itself in the larger debate about the three widely accepted durable solutions to displacement: return, local integration, and resettlement. In particular, the near-exclusive focus on restitution in kind has not oriented itself with the growing understanding that the preferred durable solution to forced displacement will not always be return to one’s home of origin (Smit 2012; Bradley 2012a, introduction to this volume). In recent years, a wide range of scholars and practitioners have documented the challenges of pursuing return and reintegration as a preferred durable solution to forced displacement (Crisp 2003; Hammond 2004). A variety of policy documents signal a shift from a “pure” focus on return as the preferred durable solution to displacement, to a focus on the wider range of durable solutions (unhcr 2003c; Brookings-Bern 2010; unhcr Policy on Urban Refugees 2009). Scholars have also supported such policy developments (Jacobson 2001; Crisp 2004). Those in the field increasingly recognize that different groups of refugees and idps, and even different individuals, have different needs and preferences with respect to durable solutions. Zeender and McCallin (2013) report on the success of a program to assist in finding durable solutions for long-term Burundian refugees and idps that focused on profiling displaced populations as an important aspect of determining the most appropriate durable solutions. un Secretary-General Ban Kimoon’s 2011 policy decision on durable solutions also highlights the importance of “addressing the specific needs and circumstances of displaced persons in a holistic manner, also considering the needs of the broader community to prevent social disharmony.” Yet as Paglione (2008) notes, the Pinheiro Principles include only one mention of the range of

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possible durable solutions, and otherwise focus solely on restitution in kind and return. They ignore the reality of durable solutions options and decision-making so thoroughly explored in the literature and increasingly in un and other international organizations’ policy. Further, as various authors in this volume, and especially part 2, note, the post-conflict reconciliation process does not take place only in the community of origin. In many cases, it involves some refugees and idps who find durable solutions in the form of local integration or resettlement, which in turn may ease some social – and property-related – pressures on the community of origin. Attempts to address hlp issues in the post-conflict context must address this reality if they are to contribute meaningfully to reconciliation processes. In a recent piece, Gureyeva-Aliyeva and Huseynov (2011) consider the interaction of local integration/resettlement options and housing conditions and lack of security of tenure for idps in Azerbaijan. Ethnic Azeri idps from the contested territory of Nagorno-Karabakh, which has been under Armenian control for more than twenty years, continue to suffer from deplorable housing conditions and a lack of secure housing or property rights. As Gureyeva-Aliyeva and Huseynov (2011, 40) state, “Lack of proper housing and security of tenure are the biggest obstacles for idps to more assertively pursue self-reliance strategies, which is a prerequisite for any durable solution. Because they do not own the property they live in and have no confidence as to whether they will remain on the land or in the homes they presently occupy, they do not invest in their future livelihoods.” Their work is a reminder of the intensifying need to consider the full range of durable solutions, in particular in protracted displacements, and of the importance of secure housing and property rights no matter solution. While the Pinheiro Principles address these issues in the context of return and restitution in kind, they do nothing to further the international community and host governments’ obligations to strengthen the security of housing and property rights in the host community or resettlement area. Indeed, that reconciliation in the larger sense may be as much about finding new solutions for some refugees and idps as about returning to old situations is a critical consideration lost in the principles. The results of a generalized failure to fully embrace the three durable solutions to forced displacement in approaches to hlp restitution have been seen elsewhere as well. For example, in Georgia, more than 200,000 ethnic Georgians, Ossetians, and Abkhazians were forcibly displaced following secessionist wars in the early 1990s. For almost two decades, the Georgian government and the international organizations supporting it

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focused on restitution in kind and idps’ eventual return to their homes of origin. The process involved draft laws, which the Council of Europe, among others, oversaw the preparation of; meanwhile, idps were encouraged to remain in substandard collective centres (mainly former Sovietera hotels, hospitals, schools, etc.) in tiny, cramped rooms over which they had no formal property rights (Burduli and Dolidze 2003; Smit 2010). No real progress was made on return and restitution, while idp families slowly began to build relationships with their collective-centre neighbours and, de facto, to integrate into their host communities with limited state or international support. In contrast, after the short conflict between Russia and Georgia over South Ossetia in 2008, the new ethnic Georgian idps quickly received long-term housing in new settlements, the result of the realization that any return would be long – if ever – in coming. In subsequent years steps have also been taken to improve the housing conditions of long-term Georgian idps, including in some cases formalizing rights over existing collective centre housing and in others building new centres to replace the old, dilapidated ones. Such approaches do not necessarily conflict with the Pinheiro Principles’ implementation, particularly since involved parties have been at pains to suggest that the settlements were not being built to replace the restitution of and return to homes of origin, but rather as a “long-term temporary” measure (Smit 2010). This is roughly what Crisp (2004) terms “local settlement,” in contrast to “local integration,” in what seems to be an effort to avoid the accusation that such a solution would take the place of the right of return. However, the non-binding Pinheiro Principles’ formal prioritizing of restitution in kind as the remedy, and return as the durable solution, discourages such creative solutions that might contribute more directly to reconciliation. Relatedly, as Pantuliano and Elhawary (2009, 3) write, a focus on restitution in kind may also restrict more purely humanitarian responses to landbased issues in the post-conflict space (2009, 3). They argue, “Engagement needs to be much broader and more nuanced, based on an understanding of the wider dynamics of land-related conflict. Humanitarian organisations can respond to land-related issues in conflict and post-conflict transitions in many ways, including research and monitoring, advocacy, legal aid and oversight” (2009, 1). In this sense, the focus on restitution (a rights-based approach to refugee/idp assistance) may shut out some of the less legal but still critical assistance with property issues that international organizations could usefully provide.

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P RI VAT E R IG H TS , U R B A N P L A N N I N G , A N D R E C ON C I L I ATI ON

In this last section, I turn to one more tension that may justify some rethinking of hlp restitution in the post-conflict context – namely, that between the restitution of pre-conflict property rights and the tools and goals of urban planning, including the use of urban planning processes to encourage reconciliation. It is axiomatic that property rights are not absolute and may, in virtually all legal systems, be infringed for the public good.2 Although most national constitutions include the right to property, that right may be breached for reasons deemed in the public interest, for public use, or for the public good, depending on the country. The state may transfer title to itself on payment of compensation to the private owner, a process known as expropriation, eminent domain, compulsory purchase, or simply “taking.” Laws on urban and land use planning also recognize that private property rights may be infringed in lesser ways, with or without compensation depending on the country and the extent of the infringement (Alterman 2011). For example, property rights in most jurisdictions are subject to limitation by municipal and other urban planning laws and decisions. Thus, even in non-conflict-stricken areas, the enjoyment of property rights must sometimes give way to public interests. While hlp restitution processes in line with the Pinheiro Principles seek to adjudicate property conflicts, usually between private parties, they do not address how public regulation of private property affects the enjoyment of that property, and whether private property rights should sometimes, in the context of post-conflict reconstruction, be ceded to public bodies in the public interest. Post-conflict urban planning to create liveable cities and useable public spaces is a relatively small but growing area of focus for planners, politicians, lawyers, and academic study (Dumper and Pullan 2010; Leonard and McKnight 2010; O’Dowd and Komarova 2011; Pullan 2012; Sutika Sipus 2014). In addition to above-discussed concerns about preferencing one set of private property rights over others, discussions must consider the broader public interest in the post-conflict sphere. That public interest consideration, implemented through urban planning laws and policies, impacts the restitution question in several ways. Two of these are discussed briefly here. First, planning laws and policies, which are meant to further the public interest in creating liveable and vibrant cities, may be just as uncertain as owners’ property rights in post-conflict urban environments. This may

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result in a lack of interest in investing in property in post-conflict states, even once property rights disputes have been settled. Calogero (2011, 135) reports that in Kabul, many property owners were hesitant to invest as they had no way to know where new roads, for example, would be built and therefore whether their property might be subject to expropriation. Such hesitation may be that much of the economic benefit that is meant to come from property restitution in terms of rebuilding and reconciliation is lost. Further, the construction that does take place often does so in contravention – or just plain ignorance – of existing planning laws. In Kabul, this has been the case for much recent construction (World Bank 2006; Graham-Harrison 2013). In Kosovo, post-conflict spatial planning laws were considered much later than property restitution mechanisms, with the 2005 release of the first draft of the Kosovo Spatial Plan, five years after the end of the conflict, leaving many years of piecemeal planning regulations in place and little enforcement (Nushi 2009). This ties in to the above discussion about many hlp restitution mechanisms’ failure to build a culture of respect for property rights: restitution conducted in a legal vacuum and without a framework for land use will not encourage the type of respect for property rights that these institutions envision. Second, urban planning itself may play a role at least as significant as property restitution in reconciliation or re-creation of the social fabric after armed conflict, even though such processes may directly conflict with the enjoyment of private property rights that restitution processes advance. As formerly warring communities attempt to build new lives either in close proximity to – or, in urban contexts, intertwined with – one another, the organization of space to promote this civil coexistence and even interaction is critical. For example, a 2005 document created by Northern Ireland’s Office of the First Minister and Deputy First Minister laid out the following three goals for public spaces in post-conflict Belfast: Developing and protecting town and city centres as safe and welcoming places for people of all walks of life. Creating safe and shared space for meeting, sharing, playing, working and living. Freeing the public realm from threat, aggression and intimidation while allowing for legitimate expression of cultural celebration. (quoted in Smyth and McKnight 2010, 4) In an attempt to distinguish the concept of reconciliation from the notion of forgiveness, Botcharova (2001) describes reconciliation as entailing

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“reintegration of the relationship between former victims and aggressors in a new, safe surrounding designed and built by both sides.” Her comments reflect not only on the physical environment, but also call attention to the need for a collaboratively designed, and often fresh, space in which to rebuild broken relationships. Nahnsen (2003), too, notes on the postapartheid transformation of Cape Town, South Africa, that “while restitution and redistribution are central to reconciliation ... the very aim of urban social and spatial integration will fail if reconciliation in the sense of healing emotional divisions and transforming self/other relationships” is not achieved. In that context, too, Nahnsen sees this latter form of reconciliation as including urban space transformations. One common approach to the creation of liveable urban public spaces has been the use of large-scale urban planning megaprojects. For some years, such projects have been a fashionable way for planners to approach urban redevelopment in “normal” urban environments (Fainstein 2008; Greene 2003), but they have also found favour in some post-conflict cities. For example, a megaproject to create the “new city” of Kabul has been undertaken in the past several years with significant foreign funding and technical involvement (dcda 2012; Wadsam 2012). Such megaprojects bring with them the likelihood that government authorities will appropriate at least some land, and often a great deal of it. The possibility of such large-scale projects interfering with private property rights therefore means that any hlp restitution’s scope and significance may be minimized. Such large-scale redevelopment projects may bring their own complications and are usually not unequivocally positive in their outcomes. In particular, megaprojects deemed to be in the public interest may actually directly benefit only certain population segments, in particular those who are already wealthy and well-connected, including large corporations and developers. Meanwhile the most vulnerable populations, for example those already displaced and/or impoverished, are often forced to make the largest sacrifices for such projects while arguably enjoying the fewest direct benefits (Turton 2002). A wealth of literature on such developmentinduced displacement illustrates megaprojects’ disproportionate effect on less-wealthy populations (McDowell 1996; Robinson 2003) and questions the ethics of such projects (Penz et al. 2011). Yet megaproject and large-scale redevelopment remain common, including in the post-conflict sphere. Even planners opposed to the rapid large-scale redevelopment of post-conflict urban areas will often accept that some urban transformation may be necessary both for reconciliation and – relatedly – a stable security situation (Sutika Sipus 2014). Achieving such urban transformations in post-conflict, displacement-affected cities

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not only may pull attention away from private property restitution processes, but also may in fact stand in direct opposition to such processes. That is, it may require the governmental expropriation, rather than restitution of private land so that it can be put to essential public use. Coming in the midst of pushes for transitional justice in the form of property restitution, this can on its face be difficult to justify. Yet as described above, expropriation is a widely used tool across legal systems, and given the range of public interest and reconciliation goals to be pursued in the post-conflict sphere, it may make sense sometimes to yield restitution processes to the public interest. As Sutika Sipus (2014) writes, “a city composed of busy streets, bustling markets, and vibrant public spaces that embody a spirit of access and opportunity for all its citizens will forever have the ability to reinvent itself and transform.” An urban space of this character may play a large role in enabling a gradual reconciliation process. The clarification and protection of private property rights will go a long way toward creating this sort of urban space, but urban planning processes must also be permitted to play their role. In some cases, this may mean de-prioritizing individualized property restitution in order to pursue larger planning and reconciliation goals. C ON C LU S I ON

In a compelling warning about rights-based humanitarianism, a category into which hlp restitution for refugees and idps would presumably fall, Slim (2002, 4) writes, “as a debate essentially concerned with a political, moral and legal framework, rights-based humanitarianism may never leave the paper and seminar rooms where it is debated and find the means to have a practical effect.” This is, of course, the crux of the problem with the Pinheiro Principles – they are an important piece of work on paper but one that in many cases has had trouble achieving a significant practical outcome. Much of the criticism points to this question: are refugees and idps actually better off, and better able to move on with their lives in a constructive and peaceful way, as a result of the existence of the types of restitution programs the Pinheiro Principles advocate? A related question is, are post-conflict societies also better off because such restitution programs exist? It is understandable that the already formidable task of creating a nuanced approach to protecting and balancing property rights becomes far more difficult after armed conflict. However, given the complexity of

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post-conflict property realities (including tangled and competing rights in property, land reform, and urban redevelopment and development programs), coupled with post-conflict contexts’ social realities and the need for feasible durable solutions that are shaped by the extent to which reconciliation takes place within the community of origin, it may sometimes make sense to temper restitution in kind with other remedies for land deprivations, and to temper the focus on private property rights’ protection with consideration of economic development, land reform, and urban planning concerns. Approaching post-conflict property justice in this way would be aligned to a degree with notions of restorative justice. Unlike remedial justice, which seeks to return the deprived property owner to their original position, restorative justice can be defined as a legal process that “does not seek to apportion blame but rather to find solutions that allow the parties to both feel that, as justice has been delivered, they can re-establish their relations on a normal footing” (Thornton 2012; Borer 2006; Reddy 2012). Restorative justice measures that include truth commissions and local/traditional justice mechanisms may help to promote the healing that is necessary for true reconciliation to occur (Mobekk 2005). The nature of a property rights claim is much more concretely focused than a restorative justice process like a truth commission would normally allow – in some sense, there will normally be a “winner” and a “loser” in a restitution case, as one party will typically end up with title to the property to the exclusion of the other. Yet the restorative justice framework may still have lessons for post-conflict hlp justice. A more flexible approach to hlp restitution might allow it to better address the needs of both all directly affected parties as well as society as a whole; in this way, more reconciliation-oriented decision-making regarding property issues might be possible. Reflecting on the Pinheiro Principles, Williams (2010) writes that while there are many criticisms to be made about their rigidity, they have at least succeeded in getting people talking about property after conflict: “One might argue that the sustained attention that the Pinheiro Principles have brought to these issues and the level of debate they have fostered may come to be seen as a success of a different but no less significant nature.” There is much to be said in favour of this position. While the Pinheiro Principles may not have gotten it completely right, hlp restitution is now seen as a critical element of transitional justice, particularly as it relates to refugees and idps. That it is only a single part, and one that must sometimes be set aside or tempered in favour of other approaches to advancing

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justice and encouraging post-conflict reconciliation, does not lessen its importance. With time, dedication, and experience, a more complete body of expertise on how best to incorporate property restitution principles in the post-conflict sphere will undoubtedly continue to develop.

notes 1 For more detailed overviews of international legal protections of the rights to restitution and return, see Smit (2012, chapter 1) and Williams (2012). 2 Even the great eighteenth-century legal scholar William Blackstone’s oftenquoted canonical description of property as the “sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe” has been more recently understood to have been only a “point of departure” (see Rose 1999).

Acknowledgments

PART T WO

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preface

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4 Negotiating Place: Interpersonal Reconciliation and Emplacement MAT EJA CELEST INA

“Are you interested only in the displaced? Everything is for the displaced, they just wait to get things and I have had to work for what I have.” A villager asked me this question – although not in these exact words – when I visited Esperanza, a hamlet in the department of Cundinamarca in Colombia that will be the focus of discussion in this chapter, and it has echoed in my mind ever since.1 Two things in this particular hamlet caught my attention. One was the significant extent to which the internally displaced persons (idps) I spoke to identified themselves as such, even though they were displaced in 1996 and had spent more than nine years in the hamlet at the time of my visit. The second, which forms the basis of this chapter, was the above comment from one of the villagers.2 It hinted there were tensions among the population that may have been present ever since idps first arrived in Esperanza. This raised questions about the degree to which integration and, more specifically, reconciliation between the displaced and the receiving population sharing the same space has been achieved. My encounters in Esperanza further raised questions about the extent to which this possible lack of reconciliation influences the home-making processes of both the displaced and the villagers. “Home” here represents both place and desire (Mufti and Shohat 1997). It entails turning an unknown place into a socialized one and forming a community (Hammond 2004). It is a site of belonging but also an object of longing (Jansen and Löfving 2009). It therefore concerns not only the here and now but also, equally, the possibilities for future life in a place. My aim in this chapter is to explore the complexity of reconciliation on local and interpersonal levels in displacement-shaped communities, and its

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role in the emplacement process.3 I do so through an exploration of the negotiation of place, in particular by analyzing one aspect of this negotiation, namely social relationships between the “locals” and the “displaced.” I begin with a brief outline of the conflict and experiences of displacement in Colombia to help establish the context in which Colombians, both displaced and non-displaced, live, and also to suggest how very different experiences of displacement can be. The displaced who are the subject of this chapter can, if compared to the discussion taking place on the national level in Colombia, be considered atypical. Unlike the majority of idps, who settle in urban areas, these individuals settled in a rural environment and have additionally been able to obtain land through a government program. However, they have yet to receive the official documentation of land ownership because they must spend twelve years on the land before they can claim full title to it. These factors distinguish them from the usual circumstances in which idps find themselves. As such, I do not aim to make any generalizations based on their situation, but instead use their experiences as a window into the diversity and complexity of the negotiation of place, the pursuit of reconciliation, and ultimately their emplacement. In my brief discussion on the “durable solutions” to displacement, I dispute the suggestion that return or resettlement necessarily end displacement, and offer “emplacement” as a more appropriate conceptual framework due to its emphasis on process rather than end state. I then set the stage for an examination of the social aspect of emplacement and negotiation of place and introduce the two groups in question, namely the displaced and the locals in Esperanza. Drawing on the results of my ethnographic fieldwork in the hamlet, I deepen my argument on emplacement’s complexity by showing some of the difficulties that the displaced and non-displaced people may encounter as they negotiate their place. I do this by drawing on sociological literature and examining the influence of “cultural patterns” (Schütz 1944) on mutual acceptance between the “outsiders” and the “established” (Elias and Scotson 1994). I then continue by analyzing how mistrust and fear shape relationships between the displaced and the villagers, as well as reconciliation and emplacement. C O NF L IC T ( S ) A N D D I S P L AC E M E N T ( S ) I N C OLOM B I A

Colombia is still experiencing very complex conflicts in some parts of its territory, despite attempts – mainly by the previous government – to present it as a post-conflict country.4 The conflict involves armed confrontations and fights for territory between the military, guerrilla groups, (re-emerging)

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paramilitary groups, and criminal gangs, with civilians caught in between. It is impossible to give a simple explanation of such a complex conflict, especially as it has evolved in particular ways across Colombia’s diverse geographic regions. What can be said is that in the 200 years since the country’s independence, peace in the whole of its territory has hardly ever been a reality, especially if we understand peace in terms broader than simply the cessation of armed violence.5 The current conflict is often portrayed as beginning in a period known as La Violencia. La Violencia began in 1948 after the assassination of Jorge Eliécer Gaitán, one of the leaders of the Liberal Party, and was marked especially by the Liberal and Conservative parties’ fight for political power, but the role of more structural problems, like the question of unequal land ownership, should not be ignored (Sánchez Steiner 2008). Even though La Violencia is often presented as the basis for the country’s current social and political instability, the roots of the conflict arguably reach further back in Colombian history, to the era of independence when inequalities among the population started to manifest more strongly and have continued ever since. Nonetheless, the current armed conflict has seen no interruption since La Violencia. What started as a struggle for social rights with the emergence of the guerrilla groups in the 1960s has over time taken on new dimensions, among which the narcotics trade, the exploitation of natural resources, and land grabbing for agro-industrial purposes are increasingly visible. Just as the conflict has spanned generations, displacement in Colombia is not a new issue. The country’s displacement crisis is rooted in the historical connection between power and land. Molano (1992 in Oslender 2007, 757) describes displacement as a dimension of the nineteenth-century civil wars, the War of a Thousand Days (1899–1903), and La Violencia, and it continues today. Despite the long history of displacement, the displaced were not officially recognized until 1995, “when [the] Colombian government adopted a policy (conpes 2804, 1995) to protect ‘those who, forced by violence, had abandoned their home and work and had fled to the cities’” (Meertens 2001, 143); two years later, the government passed Law 387 on internal displacement, which established conditions for prevention of forced displacement, and for assistance, protection and stabilization of those recognized as idps.6 Nowadays, Colombia is often considered to have one of the most advanced legal frameworks regarding idps (unhcr 2009). However, various studies (see, e.g., Ibáñez and Moya 2009; Ibáñez and Velásquez 2009; icrc and wfp 2005; Lari 2007; Medellín and Rinuado 2000; Pécaut 2000; Springer 2006), as well as the Constitutional Court’s 2004 and 2011 rulings on the unconstitutional state of

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affairs in Colombia, demonstrate that while legislation exists to promote idps’ rights and well-being, it is not implemented effectively. In spite of detailed legislation, the rights and needs of many idps, whose numbers were estimated to be between 3.8 and 5.4 million at the beginning of 2013, have not been addressed.7 Today, displacement is mainly concentrated in the most productive and strategically important regions of the country, namely along the Pacific and Atlantic coasts (Fagen et al. 2006, 88). While displacement does not necessarily always transform regional demographics, it does change the inhabitation pattern of rural and urban areas within the relevant regions. The great majority of the displaced population look for shelter in the urban environment, with each region having its own “hub” and the capital, Bogotá, attracting displaced persons from the entire country (Salazar, del Pilar Castillo, and Pinzón 2008, 79). According to unhcr data, there are displaced persons in approximately 97 per cent of Colombian municipalities; nevertheless, the dispersion is not as wide as it may seem – 65 per cent of the population has settled in 4.5 per cent of the municipalities (unhcr 2009, 61). Such concentrated settlement patterns can be attributed in part to kinship ties and to recently uprooted idps following the route of the previously displaced (Salazar, del Pilar Castillo, and Pinzón 2008). The complexity of the conflict is reflected in the complexity of the country’s idp situation and in the challenge of finding appropriate solutions to end both the violence and the displacement. To end the latter, not only in Colombia but also in other countries, three so-called durable solutions have been identified. These are “sustainable integration at the place of origin,” also referred to as return, “sustainable local reintegration in areas where internally displaced persons take refuge [local integration],” and “sustainable integration in another part of the country [settlement elsewhere in the country]” (iasc 2010, 5). In the “hierarchy of durable solutions” (Meyer 2008), the preference (of officials, if not the displaced) is usually for return, however the measures suggested to resolve displacement are often oversimplified and promoted without proper understanding of their complexities. A STR A I G HTFORWA R D E N D TO D I S P L AC E M E N T ?

Scholarly examinations of the appropriateness of different “durable solutions” to displacement more often examine refugees than idps. However, many of the concerns such examinations express are also relevant to idps.

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Many academic critiques focus on states’ and other actors’ tendency to promote return over other possible solutions to displacement. Some scholars have raised questions about the truly “voluntary” character of return (Black and Gent 2006), and expressed concerns that efforts to resolve displacement emphasize international and regional security rather than human security (Schmeidl 2009). Further, the three proposed solutions – return, resettlement, and local integration – are criticized for their sedentarist approach, successfully challenged by Malkki (1992, 1995a, 1995b), which exaggerates the link between people and place and does not recognize mobility (Long 2011; Scalettaris 2009). Additionally, efforts to support and understand the resolution of displacement usually focus on the short-term; investigations into the medium- and long-term experiences of idps and refugees are scarce. These valid critiques mainly refer to international policies and frameworks, and reflect a top-down approach to durable solutions. However, not much is known about what actually happens on the ground, where the situation is usually more complex than policymakers imagine. Due to this lack of knowledge of lived realities, policymakers tend to see durable solutions as the end of the displacement cycle, without realizing that they might mean the beginning of a new one (Koser and Black 1999). Valuable ethnographic research in a variety of settings reveals the complexity of displacement (see, e.g., Hammond 2004; Lubkemann 2008; Jansen and Löfving 2009). This research suggests that rather than simply returning or resettling, people aim to “emplace” themselves. Unlike solutions, which connote a completed action, emplacement is a process whereby unfamiliar physical space is transformed into a “personalized, socialized place” (Hammond 2004, 3). Discussions of place as a social construct are important for understanding the emplacement process. Given the common use of the word “place,” it can be “hard to get beyond that common-sense level in order to understand it in a more developed way” (Cresswell 2004, 1). Doreen Massey (2005, 1997) argues that place is not merely a physical location, but a process with many identities. Rather than referring to individuals’ “roots,” she speaks of “routes” (see also Clifford 1997) and relates place to time. As a process, place is subjected to constant negotiation. Massey (2005, 140) uses the term “throwntogetherness” to refer to this “unavoidable challenge of negotiating a here-and-now (itself drawing on a history and a geography of thens and theres); and a negotiation which must take place within and between both human and nonhuman.” My focus in this chapter is on the human dimension of displacement and emplacement. The relationships that we form and constantly renego-

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tiate with people are an important part of becoming “of place” and the creation of homely feeling. As Barrett (2009, 88) argues, the landscapes humans inhabit are in reality “social landscapes,” which refer “to the potential and the limits of social relationships in a particular social setting.” Hence, constructive relationships with the people who surround us are highly important. The building of relationships, of trust, reflects reconciliation processes that help to “create and confirm people’s sense of being and belonging” (Komesaroff 2008, 5). What do we mean when we speak of reconciliation? Reconciliation is usually considered in relation to justice, peace, truth, and mercy (Lederach 1998). However, it has no one unitary form (Galtung 2001; Komesaroff 2008); it can never be total and can never include everyone (Kriesberg 2001, 60). Most importantly, it does not concern only discussions on a state level, which are usually preoccupied with reconciliation between the warring parties, the individual perpetrators and the victims, or the state and the victims. It should also be considered on a very micro level as it relates to ordinary people affected in different ways by violence and abuses. In the case of displaced persons and host communities, reconciliation could be regarded as encompassing a wide range of activities, including fighting stereotypes, generating acceptance, building relationships, and advancing coexistence.8 Both the displaced and their hosts must be included in the process and their attitudes and biases analyzed for a better understanding of the micro-level dynamics. Nevertheless, the informal and everyday modes of interpersonal reconciliation, and especially the barriers to it, too often escape scholars’ and policymakers’ interest. Social interactions between idps and villagers in Esperanza will be the focus in the remainder of this chapter. My aim is to analyze the processes that unfold on a micro level, to show some of the reasons why achieving a durable solution to displacement is not a straightforward process, with lack of reconciliation being one of the factors of influence. Even though relationships among the displaced as well as among the villagers are not unproblematic, I here focus on interactions between the displaced and the locals – that is, the residents of the communities where the displaced have sought shelter and may conceivably stay in the longer term. F RO M A H A M L E T IN U R A B Á TO A HA M L E T I N C U N D I N A M A RC A

The displaced community in Esperanza fled the Urabá region, one of the most conflict-affected areas in Colombia. Aparicio (2009, 94) describes Urabá as, on the one hand, considered the best corner of South America

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due to its strategic position, climate, rich forests, and mobile workforce from across the country. On the other hand, it is also characterized by lack of access to education, transportation links, state absence, asset appropriation, and displacement. Urabá is afflicted by high rates of political assassinations and was one of the country’s most violent regions in the 1990s, when most of the idps who now live in Esperanza were displaced. In the early 1990s, the assassination rates in the region reached 41.42 assassinations per 100,000 inhabitants annually, while the national average was 7.67 (Aparicio 2009, 104). The displacement of the community in question took place in 1996, when Colombia and the international community in general still did not have laws or frameworks on idp protection and assistance. In Urabá, similarly to other parts of the country, displacement resulted from conflict over territory. It was also closely linked to the region’s banana industry and labour union movements. It started, as one idp in Esperanza described it, as a “psychological war against campesinos [peasants].” Peasants were accused of being members of guerrilla groups or their informants, and the accusations were accompanied by disappearances, massacres, and assassinations. The insecurity was especially felt at night. People started to leave their fincas (estates) in the evenings to sleep elsewhere and would then return during the day to cultivate the land. Due to the military’s collaboration with the paramilitaries, people could not rely on the state’s protection. Even though there were various groups operating in the area that all contributed to displacement, the idps I interviewed in Esperanza believe that the paramilitaries together with the government are responsible for their flight. After fleeing the region, their first stop was the department of Risaralda, which they reached through kinship ties. From their individual stories, even though some like to talk in collective terms using “we” instead of “I,” it is clear that they did not move as one big group but in various stages. Even within particular families, individuals moved at different times. The village in Risaralda that the first idps arrived in was a poor village where mining was the predominant activity. Upon arrival, they did not tell anyone what had happened to them as they felt locals looked at them with suspicion. The idps did not know a lot about mining and work was difficult to get. They stayed in the village for an average of about a year and a half. Some left on their own initiative, while others say they were displaced again since people were sent from Urabá to look for them. Again, through kinship ties, namely with the families that left Risaralda first, they regrouped in their current municipality in Cundinamarca.

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A local offered some of the idps his unfinished house to stay in, and helped them find temporary work. Even though the house was not offered to everyone, the majority of the group of approximately forty idps moved in. However, they could not stay there long since, as one displaced interviewee explained, the man’s family soon pressured him to ask them to leave – they were considered “invaders” trying to get hold of his land. They eventually negotiated permission with the mayor to move onto a landfill site. They set up houses made of plastic and cardboard and attracted the attention of the government’s Social Solidarity Network (Red de Solidaridad). The network originally addressed poverty issues, however, it was eventually also given the responsibility of assisting idps (Fagen et al. 2006). Due to the network’s advocacy efforts and the unhealthy living conditions the idps faced – the landfill was described as a “time bomb” – the idps were able to start negotiating with the Colombian Institute for Agrarian Reform for access to land in Cundinamarca. This was no easy undertaking. Members of this group were among the first to be recognized as “displaced,” so they often had to explain what the concept meant. Once it was passed, they studied Law 387 to equip themselves with knowledge of their rights as idps. The negotiation process was long, and required a great degree of persistence. Sometimes men would work and women would go to Bogotá to visit the necessary institutions, at other times the roles were reversed; both women and men often had to wait for the entire day to receive assistance from government officials. In 2002, they managed to obtain the finca where some of them still live. The government subsidized 70 per cent of the purchase, while they had to provide 30 per cent by themselves. The idps sold their personal possessions and took out a loan, for which they lied – it was an agrarian loan given for a productive project and they asked for it even though they technically still had no land. They almost lost their finca because their crops and cattle died in the first year and they had no way to repay the loan. An ngo saved them with a second loan that they used to repay the first; while they had repaid the majority of their debts in 2009, they were still repaying the rest during my visit in 2011. Listening to their stories, it came as no surprise that one of the displaced women said the land “cost us blood.” Their precarious life in the mining town of Risaralda, the time spent living on a landfill, the days when they endured hunger, the persistent fight to access land, the sale of their personal possessions, and the work to pay off their debt all represent important parts of the trajectory of land acquisition, and also of their trajectories of displacement.

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idps have different experiences and perceptions of what it means to be displaced. These differences are influenced not only by social categories such as gender, race, and age, but also by the circumstances that led to and characterized their displacement, including the loss of family members. In addition, idps’ stories and perceptions are influenced by their individual personalities and capacities. Despite these differences, some of the displaced seemed to build up their social cohesion on the basis of the “collective” story described above. I heard this story on several occasions, and it was especially strongly voiced by those who took an active part in fighting for land. Even those who arrived later, whose trajectories differ, would ask me whether I had heard of the “landfill story”; they seem to have adopted it as their own since it speaks of the idps’ struggle for rights recognition. This story contributes to their social cohesion, which as I will discuss is important in the process of negotiating place with the “host population.” HOSTS A N D STR A N G E R S

The hamlet’s original residents do not seem to have a collective story to tell. While it is possible that as a researcher I simply did not ask the right questions to prompt the locals to share their collective narrative with me, my strong impression was that host community members were not driven to share their stories in collective terms. Their stories differ from individual to individual, although there are some commonalities. The great majority of local interviewees are campesinos and all of them have been in the hamlet or in the area longer than the idps, some for generations. Not all of them own land. Some do, and work on that land, while others have land that is not big enough to sustain them, yet again others have a house but no land, and some have neither. In the latter three cases, both women and men earn their living by administering other people’s fincas or by working jornal (working on other people’s land for daily wages). It is not uncommon for their position in terms of land possession to continue or reflect that of their parents. While various locals have family histories of forced migration and have had tense encounters with the guerrillas, paramilitaries, and military, they have for the most part not experienced open violence. Since they did not have many stories related directly to the conflict to tell me, the women in particular would talk about the past and present problems in their families, their difficult childhoods, and their work from their early teens

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onward. While a number of them complained about their situations, others simply accepted it as a fact or as God’s will. Similarly to the displaced, the local residents are not “a single entity,” although too often the literature treats them as a monolithic host community (Chambers 1986, 249). Reflecting this diversity, the locals each have distinct perceptions of the displaced, although, as I discuss below, it is possible to identify themes in how they have reacted to the newcomers. When people move from one place to another they need to establish new relationships with those who were there before them. “They have to get used to the role of newcomers who seek entry into, or are forced into interdependence with, groups with already established traditions of their own and have to cope with the specific problems of their new role” (Elias and Scotson 1994, 157). In other words, they need to negotiate their place. Below, I explore how this negotiation is made difficult due to different cultural patterns and a relatively even distribution of power among the displaced and the locals, which both groups attempt to monopolize. I then look at the possible challenges the idp label may pose in the emplacement process, which is also influenced by the ongoing conflict. New encounters mean meetings with people we do not know. Simmel (1971), who was the first to establish the “stranger” as a sociological concept, holds that relationships with strangers include an element of remoteness and nearness at the same time; even though strangers are physically near, they are socially remote. The things one has in common with strangers are general, universal things, whereas relationships with “organically connected persons [are] based on the similarity of just those specific traits which differentiate them from the merely universal” (Simmel 1971, 146). There are different types of strangers and, consequently, attitudes toward them vary. There may be something attractive about strangers; they may be considered objective, as they are not directly involved in the possible tensions that exist among people who know each other. They might thus be trusted with closely kept secrets that would not be shared with people living close by (Simmel 1971, 145). Visitors, researchers, and ngo workers may be examples of such strangers. However, these images last only as long as the stranger is a mere visitor who “comes today and goes tomorrow” (Simmel 1971, 143) and is not a “landowner.” The reference to land here is not only “in the physical sense but also metaphorically as a vital substance which is fixed, if not in space, then at least in an ideal position within the social environment” (Simmel 1971, 144). Once the stranger becomes a landowner, “unlike in the case of mere ‘unfamil-

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iars,’ it becomes relevant whether he [the stranger] is a friend or a foe” (Bauman 1990, 149). If Simmel’s stranger is just passing through, Schütz’s (1944) stranger comes to stay. This stranger is a migrant, a newcomer, who seeks the approached community’s acceptance. Schütz holds that both the stranger and members of the approached community follow particular cultural patterns consisting of knowledge that is passed on to them through their parents, school, the government, and customs and traditions. These cultural patterns allow them to continue their “thinking as usual” (Schütz 1944, 502). Through these patterns, they know how to respond to familiar problems as community members rely on shared understandings of the world. These patterns, however, are tested when they come up against those followed by different individuals or groups. In such cases, the stranger calls into question “nearly everything that seems to be un-questionable to the members of the approached group” (Schütz 1944, 502). Additionally, strangers do not see the cultural pattern of the latter group as having “the authority of a tested system of recipes.” Different cultural patterns noticeable in Esperanza have affected the reconciliation process. Even though the displaced as well as the locals are all Colombians, due to the great differences in geography, climate, and customs across the country, the displaced community in their journey from Urabá to Cundinamarca crossed at least one internal border. Comments made about food, clothes, and some habits speak to the fact that separate cultural patterns are continuously tried and tested. It was interesting to note instances in which the displaced and the locals would refer to different dimensions of the same issue as (in)appropriate. For example, one villager, with an air of disbelief, commented that the displaced would cross other people’s fincas without asking permission first; a displaced person, with a similar air of disbelief, said that the locals would complain if they crossed someone’s finca. He used this example in support of his statement that the locals were “egotistic.” In Urabá, crossing people’s land was acceptable; this is not the case in Esperanza. Both individuals, even after so many years have passed, still understand their own perception of appropriateness as the correct one. Elias and Scotson give an interesting interpretation of why these differences are experienced as an “irritant.” People sometimes wish to step outside their cultural pattern; seeing somebody else breaking their norms might weaken “their defence against their own wish to break the prescribed form” (Elias and Scotson 1994, li). This, however, has consequences on the standing of their group, “their [perceived] special virtue and grace.”

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Elias and Scotson’s work, which examines relations between the “established,” i.e., longstanding residents, and the “outsiders,” i.e., newcomers, in a town in England, makes an important companion to micro-analysis of life in Esperanza. It nicely complements Schütz’s theory of cultural patterns, and goes beyond his concept of the stranger as an individual to encompass larger groups of newcomers and the power dynamics between the latter and “the established.” There are currently eighty-three households in Esperanza. The first displaced population to arrive in the hamlet consisted of a group of twelve families; upon their arrival, about which the villagers were not informed or consulted, they represented 15 to 20 per cent of the population. There has been a great deal of movement among the members of the original twelve families since then. During my first visit, only seven of them were still there; by my second visit, only six remained, but some new displaced families were arriving. Those who have left have gone to different parts of Colombia and in some cases to Venezuela. Among the remaining families, another two are also thinking of leaving Esperanza. Despite their decreasing numbers, the displaced families hold a strong position in Esperanza. The displaced leaders are well connected in terms of accessing assistance for different projects and since one of them was elected town councillor, the villagers, whether they like it or not, often need to ask the idps for help and advice. Additionally, unlike the locals, whose fincas are often dispersed, the displaced live in one area. The land they are living on used to be owned by a single person, and was then partitioned into twelve sections. Because their fincas are next to one another, the displaced appear to be a sort of island – they are likely to meet on a daily basis, while the locals who live in scattered locations are not. As strangers, the displaced in Esperanza have a relatively high degree of social cohesion, partly due to this physical positioning but also due to kinship ties and their shared experiences of displacement, as individualized as these experiences are. On the one hand, this social cohesion helps the displaced retain their old norms and preserve some of the practices they followed in Urabá. On the other hand, it also maintains their separateness from the villagers. Consequently, the division between the displaced and non-displaced, or us versus them, is considerable. Gossip, stigmatization, and through them the leveraging of power have been constant features of social life in Esperanza, particularly since the original group of displaced families arrived. Elias and Scotson (1994) note that gossiping is one of the measures used to maintain power. In their research, they found that if the established feared their own standing

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might be endangered, “they immediately noticed much in the behaviour of the newcomers that offended their sensibilities and appeared to them as a mark of lower order.” Gossiping was used to “confirm their own respectability, of their claim to a higher social status, of the existing social order” (Elias and Scotson 1994, 149). Instances of this kind of gossiping were evident in the hamlet. One such example was a brief discussion among local women in which one woman told of a fight that took place the previous Saturday at a party. Her statement aroused interest and another asked who was involved. The answer was short – “the displaced.” The woman who posed the question responded with a simple “ah.” Fights involving locals are not unusual at parties; someone told me separately that there was no party without a fight. However, in this conversation, that reality was forgotten or ignored. If the discussion had been about a fight between two locals, the women would have likely named or otherwise tried to identify those involved. However, since it involved the displaced, it was not necessary to name those involved or offer a further explanation. It was “them.” Here, the idp identity was clearly a factor of discrimination and the actions of two people were projected onto the idps as a group, reaffirming their perceived lesser moral values in the eyes of the locals. Similarly, a villager commented that las desplazadas (displaced women) will exchange sex for 2,000 pesos (just above US$1). Hearing this report made some displaced women angry; though they believed that one desplazada had probably slept with a local man under such terms, they demanded the villager name her rather than indiscriminately assume that all displaced women would engage in this behaviour. The clothes the displaced women in Esperanza wore were also a source of some conflict, as they would dress in a more revealing manner than the locals. The displaced are originally from the coastal area where different clothing practices are followed and some say they cannot tolerate wearing a cardigan or the many layers of clothing worn in the cool climate of Esperanza. Their behaviour is seen as unacceptable or even immoral. With their clothing, a local woman commented, las desplazadas provoke certain sexual ideas in some local men. By way of a kind of apology or explanation, she added that the locals are more “reserved.” Many villagers share a conviction that the displaced should observe Esperanza’s local norms, even though they themselves want to break free of these same norms. Recognizing this tension helps to explain cases where people seem to follow double standards. For example, one of the villagers, while complaining about the fiestero (party-loving) character of the displaced – their music and their tendency to stay up all night – orga-

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nized a christening party, which her husband’s relatives who are costeños (Colombians who live near the coast) were to attend. Costeños are equally known for their fiestero character. After the event the woman in question was explaining how successful the party was and how the costeños had danced late into the night. However, this time there was no irritation in her voice. The costeños were just visiting, and were Simmel’s valued strangers, not Schütz’s – they did not stay in the hamlet. As such, the woman did not see them as influencing her position or as people she competes with to protect what she considers to be her place. The displaced, in contrast, did not use gossip as often in this way (or at least did not in my presence). For their part, they would use labels of “lower human value” (Elias and Scotson 1994, xxi) and would describe the villagers as “jealous,” “envious,” “cold,” “ungrateful,” or as “esa gente” (these people), a term the locals also used to refer to the idps. Through such words the displaced not only express bitterness and disappointment with the manner in which the locals have received them, but also maintain their perceived superiority as compared to the “unappreciative” villagers. The relatively high number of newcomers in Esperanza and their strong social cohesion brings into question the usual assumption that newcomers are in an inferior position compared to the local population. Both the locals as well as the displaced imagine they have sufficient support for their beliefs and actions from other members of their group. Encounters with different cultural patterns, as well as irritants, increase in frequency as displacement becomes prolonged and it is no longer clear who “should” adapt to whom, if at all. The power balance and the perceived “correctness” of different behaviours are relatively evenly distributed in Esperanza, where both groups struggle to prove their perceived superiority. Through their persistence in trying to prove their superiority, they influence emplacement and reconciliation processes, for better or for worse: the acceptance of the “other” proves challenging, in part because it can be interpreted as betrayal of one’s own group, and must therefore take place over a long period of time. T H E D I S P L AC E D STR A N G E R S A N D L AC K OF TRU ST

Some of the tensions that are present in host communities on the micro level are influenced by distinct cultural patterns that, as Schütz (1944) suggests, come into conflict when strangers arrive in a new community. However, there is a significant shortcoming to Schütz’s conceptualization of the stranger that has important implications for both reconciliation and

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emplacement processes. Schütz’s stranger is a person without history, a person who in the eyes of the receiving population only began to exist upon arrival. This, however, is not the case, as experiences in Esperanza make clear. Locals see the idps in Esperanza as having history; to what extent the assumed history reflects reality is a different question. From my discussions with the villagers about the idps’ arrival, it was clear that they were not received with welcome. Members of both communities described their arrival as duro (tough). Some villagers said they were afraid of the idps since the displaced were strangers. In their research, Elias and Scotson (1994, xxii) note similar fear on the part of the established population since the influx of newcomers “was experienced by them as a threat to the established way of life even though the newcomers were nationals.” Bauman (2006, 3–4) describes this fear as a result of “dangers that threaten one’s place in the world – a position in the social hierarchy, identity (class, gender, ethnic, religious), and more generally an immunity to social degradation and exclusion.” While this partly explains the fear, the experience was duro for another reason: it was not only that the displaced were strangers, but that they were displaced. One of the perceptions many locals have about the displaced is that they are responsible for their own predicament. As one villager asserted, “No one gets displaced for being good.” The villagers were especially fearful of the idps in the first years after their arrival, but many remain suspicions of their past and present deeds. Another villager remembered how her daughter came running home once, saying there were displaced children at school and that she was afraid they would kill her. The displaced also bitterly remember how they were accused of theft whenever things disappeared. A displaced woman commented that according to her new neighbours, “If a chicken disappeared, it was los desplazados who took it. A plantain ... los desplazados. The displaced were hungry [they would say].” The locals do not know the real reasons behind their new neighbours’ displacement. They do not see the displaced as people without history, but rather as having “dark” pasts. They are believed to have been involved in the conflict by supporting or actively participating in one of the non-state armed groups, or they are assumed to have committed some sort of crime, like theft. Displacement is perceived as result of “social cleansing,” when regions are cleared of “undesirable people.” Some displaced persons undoubtedly supported armed groups, particularly the guerrillas, either because they had no other option, or simply because they are political subjects with their own opinions and preferences and saw guerrilla formation and presence as legitimate. However, among the locals, being a guerrilla is

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seen as inherently negative, and the stereotypes associated with the guerrilla are often applied indiscriminately to everyone from the regions where they are active, including the displaced. idps are thus not welcome in host communities not only because it is generally believed that their presence worsens social conditions, resulting in urban degradation and acceleration of poverty (González Bustelo 2002; Salazar, del Pilar Castillo, and Pinzón 2008), but also because those communities believe they bring violence to areas in which they settle. Locals fear that their arrival opens the door to armed groups, either because the idps support them, or because another social cleansing incident will take place. As the locals tend to accuse the displaced of theft, many assume that these incidents will attract armed actors, cause new displacement, and further disrupt their lives. The villagers, however, are not the only ones who mistrust. As Daniel and Knudsen demonstrate, trust and mistrust coexist within both displaced and non-displaced populations. The difference, however, is that “in the life of a refugee [or an idp], trust is overwhelmed by mistrust, besieged by suspicion, and relentlessly undermined by caprice,” and the “agitated state of awareness that it [mistrust] creates bars it from settling back into a state of comfortable and largely unconscious comportment with the surroundings of its world” (Daniel and Knudsen 1995, 2). Using mistrust as an analytical tool is by no means without problems since it risks suggesting that the inability to trust others is pathological (Voutira and HarrellBond 1995), which is not the aim of this chapter. Instead, the mistrust idps exhibit differs in degree and form from that the locals exhibit. This mistrust is the result of what Bauman calls “derivative” fear and is directly related to (prolonged) exposure to conflict. A sediment of a past experience, such as displacement, “becomes an important factor in shaping human conduct even if there is no longer a direct threat to life or integrity” (Bauman 2006, 3). In the context of the ongoing conflict in Colombia, this threat to life can still be perceived as real and present. For example, a number of the displaced in Esperanza expressed concerns about two finca owners who do not live in the village permanently, but use their fincas as a retreat from the city. They would usually spend their weekends there or visit randomly. The displaced believe one of them is linked to the paramilitaries and the other one is a retired official of Colombia’s former Administrative Department of Security. Only the displaced expressed concerns about these individuals’ presence. As discussed, they believe the government and the paramilitaries are responsible for their displacement and they do not feel comfortable with the presence of

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individuals they believe are associated with these groups. The villagers, and especially the displaced, look at any unknown person coming to the hamlet with some degree of suspicion. The idps’ suspicion is greater if these unknown people visit the finca owners mentioned above. Many feel even more uncomfortable when locals spend time with these finca owners – they do not know what is being discussed, and so they are cautious about what information they share with anyone, even the permanent villagers. If reconciliation is at least in part about communication and “bringing diverse voices into conversation with each other” (Komesaroff 2008, 10), this process is greatly hampered in Esperanza. The locals do not ask about the idps’ lives before displacement or the reasons behind their displacement; by the same token, neither do the displaced usually ask about the locals’ history. Communication, coexistence, and hence reconciliation are inhibited due to the fear of strangers, and are highly influenced by the displacement experience, which impacts both parties. The villagers are influenced by stereotypes about the displaced, which make them fear for their own security, while the idps are affected in particular by the generation of recycled fear. Micro-level reconciliation is further inhibited by the broader political situation and the ongoing conflict; even if locals were to ask about their history, which would arguably be helpful for building relationships and trust, idps are, as one displaced person commented, unlikely to share their stories due to their fear. C ON C LU S I ON

In the context of the constant search for solutions for the displaced, my aim in this chapter has been to show that putting people “in place” physically is not sufficient to resolve their displacement. The relatively high number of idps who have already left Esperanza or who plan to do so once they receive their official land ownership papers attests to the difficulty of becoming emplaced. The idps’ relationships with their neighbours are of course not the only factor that influences their decisions to stay or to leave. However, it is an important one. The emplacement process includes various dimensions, of which reconciliation between those who were there originally and those who arrive is key. In this connection, I have examined how relationships between the displaced and the villagers in Esperanza are influenced by differences in social patterns, and by how individuals’ previously unquestioned practices are tested when they come across people following different social patterns.

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In the absence of previous consultations, the arrival of a relatively high number of idps significantly influenced the lives of the villagers who unexpectedly found themselves sharing their space with strangers. Their place has been transformed, on the one hand because they have questioned their established practices and on the other hand because they fear potential consequences of the arrival of the displaced. The displaced, for their part, also started to negotiate their place in the village. The relatively high level of social cohesion among the idps, especially upon their arrival, helped them retain a strong position in this process. The leveraging of power between the idps and the villagers due to lack of reconciliation at times seems like a zero-sum game. In such a context, people resort to the use of stereotypes, gossiping, and labelling to show and maintain their perceived superiority. All this speaks to the often-ignored complexity of the long-term emplacement process. While the stereotypes the idp label carries influence the level of trust in the displaced, the level of trust of the displaced has been reduced due to their experiences. The displaced in Esperanza express somewhat elevated levels of mistrust that hinder rather than help reconciliation and ultimately influence their emplacement. This case demonstrates that the situation on the ground cannot be separated from the broader socio-political environment, particularly the ongoing conflict. Similarly, macro-level reconciliation alone is insufficient. Reconciliation is a multilayered process and should go beyond the engagement of different warring parties to bring the state and the victims into communication with each other. A number of conflicts that unfold at local and interpersonal levels do not usually attract policymakers’ attention. However, they are no less important than those that do. They not only speak of the need to consider the perspectives and concerns of host communities, but also play an important role in reconciliation and emplacement processes. In order to better understand both processes it is crucial to examine the attitudes, behaviours, and biases of not only the displaced, but everyone involved.

notes 1 The name of the hamlet is a pseudonym in order to protect my interviewees’ identities. 2 I recognize that the terms “villager,” “local,” and “idps” are not unproblematic. When does one become a local or a villager? Arguably, after spending a significant amount of time in the village, idps may come to subvert tidy divisions between being local and being displaced, and to some extent may be

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considered both. The term idp is problematic especially in terms of the consequences such labeling can bring. Additionally, not all displaced persons want to be identified as idps. However, for the sake of clarity in this chapter, the terms locals and villagers will be used interchangeably to refer to Esperanza’s original inhabitants, and idps to refer to the displaced who arrived there after fleeing from conflict. The latter strongly identified as idps, and often referred to themselves as desplazados. My use of the term idp in this chapter to some extent reflects their practice. For further discussion of local and interpersonal reconciliation dynamics in communities affected by displacement and violence, see Ndjeru (this volume). See Vidal López (this volume) for a discussion of the challenges associated with advancing truth-telling, reconciliation, and justice for displaced persons in Colombia in the context of ongoing conflict. See for example Galtung (1969). For a related analysis that applies Galtung’s work to illuminate the links between peacebuilding and displacement, see Milner (this volume). The Colombian Congress approved the Victims’ Law (1448), a new law highly relevant to idps, in May 2011. However, since this law was only in the early stages of implementation at the time of writing, reference here is still made to Law 387. The general opinion in Colombia is that the Victims’ Law is a step forward because, if nothing else, it recognizes the reality of armed conflict in Colombia, which was denied during the presidency of Colombia’s former leader, Álvaro Uribe. The Colombian government records 3.8 million idps in its statistics while codhes, a non-governmental organization concerned with displacement and human rights, claims that the numbers reach 5.4 million. The discrepancies in numbers are due to the different time periods considered (codhes keeps a register of idps uprooted since 1985, while the Colombian government data only covers those displaced since 2000); different methodology; different criteria on who falls into the idp category; and arguably also different political agendas. For a more detailed discussion of the challenges associated with supporting coexistence in communities affected by displacement, see Haider (this volume).

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5 The Forgotten Ones: Vietnamese Catholics in Cambodia and Their Quest for Reconciliation T HIE N - HU ONG T . NINH

Throughout the second half of the twentieth century, Vietnamese Catholics suffered political violence in Cambodia by virtue of their ethnicity. Following the end of French colonialism in 1954, they were immediately stripped of their Cambodian citizenship rights and excluded – to this day under the democratic constitution – from political membership in the Cambodian nation. Cambodian nationalist discourse and rhetoric across the political spectrum have targeted ethnic Vietnamese as a threat to nationbuilding projects (Edwards 1995, 2007). They have accused the Vietnamese of being territorial colonizers who robbed the Khmer Kingdom of its land in present-day southern Vietnam. Maps showing this region as part of Cambodia continue to be displayed at many public sites, including the Royal Palace and the National Library in Phnom Penh. Moreover, the Cambodia government has renamed many streets, most notably Kampuchea-Saigon Boulevard, “in an attempt at reasserting Cambodia’s rights on Lower Kampuchia, i.e., the Mekong Delta, now part of Vietnam” (Frings 1995). The Vietnamese community in Cambodia began as early as the midseventeenth century; the population grew in large numbers during the mid-nineteenth century as a result of French colonial recruitment (Ponchaud 1990). The Vietnamese population in Cambodia, estimated at some

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600,000 people, includes approximately 22,000 Catholics, who make up the majority of Catholics in Cambodia (cia 2013; Destombes 2007). Despite this longstanding presence, beginning with the Sihanouk regime in the 1950s, the Cambodian government has classified ethnic Vietnamese as politically foreign and “unassimilable” within a racialized ethnic typology of modern Cambodia (Erhentraut 2011, 784). Many Khmers have called them the derogatory racial epithet “youn” (similar to calling blacks in the United States the “n” word) to reinforce their outsider status, even if their families have lived in Cambodia for as many as four generations (Tarr 1992, 41). To this day, ethnic Vietnamese in Cambodia do not have hyphenated identities like their co-ethnics in many other parts of the world, including in the United States. That is, they are seen as simply Vietnamese, rather than Vietnamese Cambodians. Without political recognition and protection, they face barriers to education, employment opportunities, and public service access that have further perpetuated their poverty (Tarr 1992, 33–47, Berman 1996, 817–74; Jordens 1996; Amer 2006, 388–409). How can reconciliation be advanced between the Vietnamese population in Cambodia and Cambodian society more broadly if the Vietnamese are, by virtue of their ethnicity, seen as the antithesis of the Cambodian nation? Unlike the common cases of other ethnic minorities, ethnic Vietnamese are not simply an invisible minority or a nuisance to Cambodia’s ethnic purity. They are the major predicament to and within Cambodian nation-building projects in the aftermath of colonialism (Edwards 2007). Cambodians perceive Vietnamese as having a long history of territorial invasion, since all of southern Vietnam was once part of the Khmer kingdom. Maps that show the southern region of Vietnam as a part of Cambodia continue to be displayed at many public sites, including the Royal Palace and the National Library in Phnom Penh (Ninh 2011). Meanwhile, ethnic Vietnamese are still called derogatory racial epithets even if they have lived in Cambodia for generations (Tarr 1992; Jordens 1996). For many Cambodians, the Vietnamese threat is real and penetrates the soul of their nation. Bradley (2012, 6) warns, “reconciliation is notoriously difficult to define.” According to Phan (2006, 1990), reconciliation entails “resolv[ing] a dispute and ... re-establish[ing] friendship and harmony, or, at a minimum, peaceful coexistence between opposed individuals or groups.” However, Borneman (2002, 281) rejects permanent peace or harmony as a testament of reconciliation, and broadens its meaning to simply “a project of departure from violence.” This chapter contributes to discussions on the

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meaning and pursuit of reconciliation in societies shaped by conflict and forced migration by examining the unique case of ethnic Vietnamese and their Catholic church in Cambodia. Can the church mediate harmonious relations between its ethnic Vietnamese followers and Cambodian society, and consequentially move toward some form of reconciliation between these two oppositional groups and contribute toward nation-building in the aftermath of genocide and war? The chapter is based on ethnographic fieldwork I conducted in Cambodia between 2008 and 2011 and during the summer of 2013. In it, I illustrate that while churches have played prominent roles in advancing reconciliation in many post-conflict contexts, ethnic Vietnamese Catholics in Cambodia have not been able to rely on their church to facilitate building harmonious relations with Khmer people despite its universal commitment to justice, equality, and tolerance. Instead, the church has deserted them, as it sees them as obstructing and deteriorating its reconciliation and expansion efforts with Cambodian society, which reflect anti-Vietnamese, Khmer nationalist groundings. Within this context, I further argue that, through an indigenous form of shared devotion to Mary or “Marianism” – specifically devotion to Our Lady of the Mekong River – ethnic Vietnamese in Cambodia have created a space for interethnic coexistence and work toward healing the painful wounds of ethnic animosities.1 I begin this chapter with a brief discussion of the history and demographics of the Vietnamese Catholic community in Cambodia. Then, I analyze the marginalization of the ethnic Vietnamese from the Catholic Church’s efforts to rebuild in Cambodia in the aftermath of the fall of the Khmer Rouge regime. In this section, I highlight ethnic Vietnamese Catholics’ need for reconciliation not only with their Khmer neighbours and the Cambodian state after generations of violence, but also with their own Church. In the final section, I explore how, despite this conflict within the Church, celebration of Our Lady of the Mekong River by ethnic Vietnamese Catholics and Buddhist Khmers alike has opened up avenues for local reconciliation. HI STORY A N D D E M OG R A P HI C S O F T H E V I E T NA M E S E C ATHOL I C C OM M U N I T Y I N C A M B OD I A

Vietnamese Catholics lived in Cambodia as early as the mid-seventeenth century (Ponchaud 1990). Although the population was probably small, it most likely made up nearly the whole Catholic community in Cambodia

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(more than 95 per cent) because the country was predominantly Theravada Buddhist. The community grew during the mid-nineteenth century when more Vietnamese Catholics sought refuge in the country from antiCatholic persecutions in Vietnam (Ponchaud 1990). Vietnamese Catholics constituted between 7 and 8 per cent of all Vietnamese in Cambodia by this time (Ponchaud 1990). In 1914, there were 32,500 Vietnamese Catholics, and a total 36,000 Catholics in Cambodia. They were also a significant presence within the religious vocations (Ponchaud 1990); for example, by this time, there were thirteen Vietnamese Catholic priests in Cambodia, which was equal to the number of foreign missionaries. Up until 1970, Cambodia’s Vietnamese Catholic population continued to grow. As of 1970, before the violent massacres and expulsion of ethnic Vietnamese from Cambodia, there were 56,000 Vietnamese Catholics out of a total of 65,000 Catholics in the country, which is more than 90 per cent of the Catholic population, according to at least one account (Phan 2011). Within the next ten years, the Vietnamese Catholic population was reduced to nearly zero due to heightened anti-Vietnamese violence. Most Vietnamese Catholics in Cambodia fled to South Vietnam between 10 May and 15 August 1970 under the Lon Nol regime (1970– 75). The government expelled more than half of the 400,000-member ethnic Vietnamese population, and with it went two thirds of the Catholic population (Kiernan 1990; Berman 1996; Ponchaud 1990). The Khmer Rouge rule (1975–79) that followed exterminated the remaining ethnic Vietnamese in Cambodia (Chanda 1986; Kiernan 2011, 586).2 Alongside the murder and expulsion of ethnic Vietnamese, the Lon Nol government and Khmer Rouge regime sought to destroy the Catholic Church in Cambodia; over the course of the 1970s, they destroyed all church buildings except for two, and all Vietnamese Catholic-dominated religious orders, including the Daughters of Mary, fled to Vietnam (Ponchaud 1990). During the 1980s, after the Vietnamese communist authority deposed the Khmer Rouge regime, Vietnamese began to return to Cambodia. Estimates of their population during the early 1990s vary widely. Kiernan (1990, 64) estimates that there were 200,000 Vietnamese in the country at the time, or less than half of the group’s population pre-1970. In 1993, the United Nations Transitional Authority of Cambodia reported that there were approximately 500,000 Vietnamese in Cambodia, or 5.5 per cent of the country’s population (Economist Intelligence Unit 1993; Abuza 1995, 441). However, Cambodian political authorities claimed that there were

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between one and four million Vietnamese in the country (Owsley 1995, 377–416). Today, the Vietnamese community in Cambodia is estimated to be about 5 per cent of Cambodia’s population of fifteen million (cia 2014a). Within this group, Catholic leaders believe that there are approximately 22,000 Catholics, who account for two thirds of all Catholics in the country (Destombes 2007).3 While Vietnamese remain the majority among all Catholics in Cambodia, their proportion has shrunk due to massacres, displacement, and conversion among Khmer. C ATH OL I CI S M ’ S R E TU R N TO C A M B OD I A

During the early 1980s, ethnic Vietnamese Catholics began to return to Cambodia and resettled in or near their former villages. During these dark years, the new Vietnamese-communist-backed Cambodian government suppressed all forms of religious practices and prohibited the reconstruction of religious sites. As a result, Vietnamese Catholics had to practice their faith secretly and without spiritual guidance. Beginning in 1984, as a result of an accord between Cambodia and Vietnam in which the Cambodian government agreed to allot land and issue identity documents to ethnic Vietnamese, the Vietnamese Catholic community slowly developed (Pouvatchy 1986).4 Members built a school that they also covertly used as a religious centre. Four years later, following contacts with US-based Maryknoll Father Thomas Dunleavy (the first priest ethnic Vietnamese Catholics encountered since their return to Cambodia several years earlier), they began to hold regular Sunday services and monthly meetings to address a variety of community issues, ranging from employment to education and church activities. During the early 1990s, the Cambodian government also institutionalized mechanisms to recognize and protect religious groups as it transitioned toward democracy (Marston and Guthrie 2004; Jordens 1996). It welcomed Catholic leaders back to Cambodia to rebuild the church. In 1992, the Holy See reappointed Monseigneur Yves Ramousse of Missions Étrangères de Paris (mep, Foreign missions of Paris) as the Apostolic Vicar of Phnom Penh, a position from which he had been expelled in 1975 by the Khmer Rouge government (ucan 2013).5 In 1994, he was instrumental in the reestablishment of diplomatic relations between Cambodia and the Holy See. In 1995, after more than two decades, the first new Khmer Catholic priest was ordained and the church produced a Khmer translation of the Bible.

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In 1997, Catholicism became an official religion of Cambodia. Since this time, the Catholic church in the country has been under the authority and guidance of priests belonging to the France-based mep, although a smaller number of priests are also affiliated with other religious orders. The Cambodian government has returned some church properties, including St Joseph seminarian buildings, which it had used as a military office (Ponchaud 2003). Religious leaders converted the seminary into St Joseph Parish and the administrative headquarters of the Vicariate Apostolic of Phnom Penh. As I detail in the following section, these developments and the desire to further re-establish the church in Cambodia created incentives for the church to adopt and promote Khmer nationalist standpoints, even though doing so came at the expense of the ethnic Vietnamese who comprised the majority of the church’s adherents in Cambodia. T H E CATH OL I C C H U RC H OF C A M B OD I A ’ S K HM E R I Z ATI ON P ROG R A MS

During the early 1990s, as Cambodia transitioned toward a democracy under the United Nations Transitional Authority of Cambodia, Cambodian parties across the political spectrum resurrected fears about cultural annihilation at the hands of the ethnic Vietnamese (Ehrentraut 2011, 787; Edwards 2007, 56; Jordens 1996). Khmers massacred hundreds of ethnic Vietnamese while approximately 13,000 others were forced to flee to Mekong Delta provinces in Vietnam (US Committee for Refugees and Immigrants 2002). Even with the new democratic constitution, signed in 1993, Vietnamese were excluded from obtaining Khmer citizenship because of their ethnicity. Meanwhile, other ethnic groups such as the Chinese were able to shed their foreign status and become full citizens (Ehrentraut 2011; Tarr 1992). The United Nations Transitional Authority of Cambodia was aware of the anti-Vietnamese violence but chose not to be directly politically involved in the Vietnamese issue. It contended that Cambodia’s new democratic government should take the matter into its own hands (Jordens 1993). Similarly, the United States, shadowed by the loss of the Vietnam War, was unwilling to protect ethnic Vietnamese in Cambodia. As Owsley (1995, 416) argues, “Unless powerful nations like the United States begin to promote human rights over foreign policy, ethnic cleansing whether in Bosnia or Cambodia, will continue to occur. Moreover, Vietnamese refugees from Cambodia risk not even having their plight known to much of the world because, it is considered geopolitically insignificant.” Ethnic Vietnamese, as

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stateless individuals vulnerable to nativist national politics, were caught in between these local and international political maneuverings. Religious Acculturation and the Khmerization of the Virgin Mary In light of the fact that not even the United Nations Transitional Authority of Cambodia was able to manage the Khmer-Vietnamese ethnic violence, French mep missionaries returned to Cambodia with the goal of distancing the church from its Vietnamese population in order to reestablish relations and build trust with Khmer people and re-transplant the church in the country. The threat of being caught up in anti-Vietnamese hostilities was particularly pronounced because the church’s headquarters were centrally located in Phnom Penh, where ethnic violence was more prominent than in rural areas (Tarr 1992). As a result, mep priests were determined to carry out Khmer acculturation programs in order to assuage anti-Vietnamese assumptions that the Catholic church catered to the Vietnamese. Father Ponchaud (2003, 22), an influential mep French priest with one of the longest service records in Cambodia, reflects this point in one of his publications: “In 1990, acculturation was a sine qua non of survival, as Catholics were so often charged with practicing a foreign religion, with religious treason and, worse still, with being agents for Vietnam.” Consequentially, the Catholic Church adopted the principle that “everything must be done to prevent Khmer people from feeling estranged within the Church of their own country” (Ponchaud 2003, 30). Catholic teachings, rituals, and beliefs were localized into familiar “Buddhist” forms for the Khmer population. For example, rather than sitting in pews, the faithful sit cross-legged on the ground nearly throughout mass, as if they were visiting wats and temples. Catholic concepts such as “life after death” and “baptism” were loosely translated in reference to Buddhist ideas of “reincarnation” and “rebirth” (Ponchaud, interview 2010). Incense sticks also replaced candles in churches and at home altars. While white European representations of the Virgin Mary continued to be worshiped, mep priests led a campaign to localize the Virgin Mary as part of their acculturation efforts.6 Under Bishop Yves-Georges-René Ramousse, who also led Khmerization transformations during the 1960s in Cambodia, the Virgin Mary was redesigned as a Khmer woman. She was imagined dressed in Khmer traditional clothes: a sarong, a simple long-sleeve top, and a kroma (a handmade, multifunctional scarf) that

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wraps around her neck. She holds a small figurine of baby Jesus with both hands. Moreover, because her image is often carved out of the banyan tree, her skin tone is distinctively dark and makes her stand in great contrast to white European statues of the Virgin Mary. Catholic church officials hoped that the Khmer Mary would make Catholicism more accessible for the Khmer population. However, this Khmerization of Mary further alienated ethnic Vietnamese Catholics, who continued to make up the majority of the church’s adherents in Cambodia. All of my Vietnamese Catholic interviewees in Cambodia informed me that they were shocked when they first saw the Khmer statue of the Virgin Mary. Even Father Thai, the only Vietnamese priest in Cambodia, could not convince his Vietnamese followers to worship the Khmer statue and had to replace it with a white, European-looking one. Many Vietnamese Catholics shared with me that they believe the Virgin Mary was white and European as that was the image they had used for many generations. Several said that they could not possibly stand to recite prayers in front of the Khmer Mary, while others believed that if they did the Virgin Mary in heaven would not receive their prayers. This partly explains why ethnic Vietnamese Catholics in Cambodia made concerted efforts to buy a European statue of the Virgin Mary from Vietnam when the border became more porous during the late 1990s. They had pooled more than $300 to purchase the statue, hire a deliveryman, and pay for the transportation. When the first attempt to acquire a statue failed in 1998, they tried again with success in 2000. Khmer and Vietnamese Divisions The church’s policy of acculturation in Cambodia is not simply cultural adaptation to Khmer and Buddhist practices and ideas – it is also the systematic portrayal of ethnic Vietnamese Catholics as “a foreign presence” unable to coexist with the Khmer within the Catholic church of Cambodia (Ponchaud 2003, 34). Father Ponchaud (2006, 30, emphasis added) illustrates this point: “As soon as Khmer people feel that the Vietnamese are too numerous in their church, they desert it. The Vietnamese, on the other hand, assert themselves. Coexistence is thus a constant concern and there is always the danger of explosion into open conflict even within the tiny community that is the church. Everything must be done to prevent Khmer people from feeling estranged within the Church of their own country.” Father Ponchaud does not see the challenge of Vietnamese-Khmer coexistence as a problem in which the whole church needs to mediate.

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Instead, he believes that the Vietnamese are the problem and that, if they were to leave the church, it could rebuild itself and thrive again in Cambodia. He writes, “Vietnamese Christians in the Catholic Church have consistently been a source of difficulty. Christ had not only the look of the European foreigner, but also that of the hated enemy” (Ponchaud 2003, 28). Reflecting this anti-Vietnamese nativist outlook, the Catholic church in Cambodia has exercised its authority to systematically exclude and control Vietnamese participation and language usage in religious life. For example, the church has estranged ethnic Vietnamese Catholic villages while prioritizing the building of a local, distinctively Khmer hierarchy and following. As Ponchaud (2003, 30) notes: “The Church also has the obligation to these Vietnamese communities, which often inhabit a secluded environment on the margins of Khmer society, to open them up to their Khmer surroundings. But the primary concern of the Church of Cambodia is to be present to the Khmer Buddhist environment, by not allowing itself to become preoccupied by the one ewe that stayed in the fold while forgetting the others lost in the mountains.” The mep has assigned responsibility for ministering to Vietnamese Catholic villages to mostly US-based Maryknoll priests (Ponchaud 2003, 28). It does not support building parishes for ethnic Vietnamese Catholics, who must pool their own resources to do so. Vietnamese Catholics often whispered to me that most leadership positions in lay organizations, such as pastoral committees, are reserved for Khmer even though Vietnamese Catholics constitute the majority among lay people. Moreover, the church restricts the participation of Vietnam-born and Vietnamese men in the priesthood. For example, although Father Thai revealed his identity as a priest to the bishop of the Apostolic Vicariate of Phnom Penh in 1993, he was not allowed to practice until 1997. He speculated that the bishop would not have permitted him to practice if it were not for the fact that he could not be politically reintegrated into Vietnam or resettled in another country.7 Father Thai became and has remained the only Vietnam-born priest to serve in Cambodia. The bishop has turned down all requests from priests in Vietnam to serve the Vietnamese Catholic community in Cambodia.8 Priests from other countries, however, were permitted to serve. For example, during my fieldwork, I met priests from France, Italy, the United States, and Thailand. According to Father Thai (interview 20 October 2010), the bishop often justified the denial of Vietnamese priests by saying that the church in Cambo-

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dia does not need them. However, in reality, members of the Vietnamese Catholic community are underserved. They are often unable to attend Sunday services and other important masses because there are not enough priests to visit all the villages. In contrast, the churches in Phnom Penh hold regular masses that cater to predominately Khmer and non-Vietnamese expatriate congregations. Similar to the restrictions on Vietnamese priests, the Catholic church in Cambodia has stopped accepting religious sisters and brothers of Vietnamese ancestry, despite the high demands for Vietnamese Catholics’ teaching and service. Father Thai said that Vietnamese sisters and brothers has submitted many requests to serve the Vietnamese Catholic community in Cambodia, but the current bishop stopped accepting such requests since former bishops had already approved ten in the early 2000s. The Cambodian Catholic Church has also enforced a “no Vietnamese language” policy. The hierarchy has made Khmer the official language in all ceremonial church activities, including masses, weddings, and funerals, though it makes exceptions for English, Korean, and French for the expatriate community. To eliminate the Vietnamese language from Catholic Church life in Cambodia, the bishop financially supports Khmer language and cultural classes taught by Khmer teachers in Vietnamese villages. However, most Vietnamese Catholics are already fluent in colloquial Khmer although, like many Khmer, they do not know how to write. Moreover, as most of them were born in Cambodia and their families have been in the country for many generations, they are quite knowledgeable about Cambodian culture. Nevertheless, in compliance with the bishop’s policy, Vietnamese Catholics use Khmer for masses, but speak Vietnamese almost exclusively during other religious activities. The policies and programs have had profound implications for the Catholic church’s potential role in advancing reconciliation in an ethnically divided country struggling to emerge from generations of conflict and displacement. Rather than positioning the church as a leader in bringing together the Khmer and ethnic Vietnamese populations in Cambodia and advocating the equal treatment of all people in the country, these policies exacerbate the marginalization of the Vietnamese in Cambodian society and detract attention from efforts to create peace and mutual understanding. Instead of encouraging reconciliation in a divided society, these policies and programs have created new grievances – in this instance, between the ethnic Vietnamese and their own church – which will need to be addressed if the Catholic church is to promote peaceful relations between the Khmer and ethnic Vietnamese in Cambodia.

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Because Vietnamese Catholics in Cambodia are stateless and vulnerable to anti-Vietnamese violence, they need the local church hierarchy to provide spiritual guidance and mediate reconciliation with Cambodian society. However, the church leadership has failed to meet this need, with mep church leaders shunning the ethnic Vietnamese population on Khmer nationalist terms. As I discuss in the next section, Vietnamese Catholics have therefore taken the matter into their own hands, engaging with their Khmer neighbours in devotion to Our Lady of the Mekong River. In this way, they have opened up avenues for interethnic coexistence and working to overcome divisions between their communities. Our Lady of the Mekong River In April 2008, a group of Khmer fishermen from a village named Sa9 in Phnom Penh lifted a 130 kilogram, 1.5-metre-tall steel statue of Our Lady of Fatima from the Mekong River, which flows through both Cambodia and Vietnam. The fishermen immediately recognized the object as a Catholic statue and gave it to Vietnamese Catholics in the village. The statue was made of steel and was most likely not manufactured in Asia but brought to Cambodia by French missionaries at least fifty years ago. Oxidization in the river damaged it, leaving black-grey spots. Like many other religious objects, Khmer Rouge soldiers between 1975 and early 1979 had most likely dumped it into the Mekong River. Within days after the statue was lifted from the river, hundreds of people flocked to Sa to venerate it. Vietnamese villagers informed me that large crowds arrived for several weeks. The pilgrims prayed throughout the day and into the night. Although there were some cases of disapproval of the veneration, including from a foreign Protestant priest, people in general were awed by the statue (Father Tuan, interview 9 May 2010). In 2009, as a result of benefactors’ generosity, Vietnamese Catholics collected approximately US$22,000 to build a shrine for Our Lady of the Mekong River (Mr Ro, interview 28 February 2011). The sacred site includes an artificial 8.1-metre-high mountain located next to the village’s church. The shrine’s natural scenic surroundings (plants, trees, and stones) allude to the popular devotional sites of Our Lady of Lourdes and “magical” mother goddesses in Vietnam that Khmer worship, such as the Black Lady and Lady of the Realm (Taylor 2004, 2010). It is precisely at this juncture of multiplicities that Our Lady of the Mekong River has united eth-

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Figure 5.1: Our Lady of the Mekong River (Phnom Penh, Cambodia). Photo by Thien-Huong T. Ninh, 2013

nic Vietnamese Catholics and predominantly Buddhist Khmer, each with different motivations and interpretations of her significance with respect to their own faith. Yet, at the same time, they have chosen to not hypervisibilize these distinctions but to show their connections. They do not

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refer to her as “Our Lady of Lourdes” or a mother goddess following other religious traditions. Instead, ethnic Vietnamese and Khmer call her “Mother of the Mekong River” or “Our Lady of the Mekong River,” names that resonate with both Vietnamese Catholics in Cambodia and with Buddhist Khmer. Through informal networks and word of mouth, knowledge about Our Lady of the Mekong River has travelled across national borders. Her shrine has become a major pilgrim centre, attracting visitors from all over the world since 2008. According to the tourist pamphlet created by Vietnamese Catholics in Sa: “The Holy Mother has blessed many pilgrims and their families, especially treating their illnesses, helping them attain economic goals, bringing peace and happiness into their family and personal life, and many more.” Each year on 16 April, Vietnamese Catholics and people from diffferent religious affiliations and ethnicities congregate at the shrine to commemorate the day on which Our Lady of the Mekong River was lifted from the water. Pilgrims and donations have come from Vietnam, the United States, Australia, Canada, Thailand, and other distant countries. Without the statue, ethnic Vietnamese in Cambodia would not be able to connect so meaningfully with others across the country and around the globe. As an economically deprived community, they do not have a high level of access to modern forms of communication, such as the Internet and phones. The Mekong River’s Significance “Mekong” literally means “mother water” or “great river,” in reference to its grand size (Nguyen 1999), and this meaning can loosely translate “Our Lady of the Mekong River” as “Mother of the Great River.” As a central and nutrient-rich waterway that gave rise to the civilizations in the areas surrounding it, the Mekong River constantly brought Vietnamese and Khmer into contact with each other (Taylor 2010). In 1866, when King Norodom I moved the royal capital from Angkor (near Siem Reap) to Phnom Penh, he invited the Vietnamese to the city and gave them land, thus further encouraging interethnic exchanges.10 However, decades of war during the twentieth century ravaged interethnic coexistence. Vietnamese Catholics became the primary victims of waves of Khmer nationalism that sought to search for a golden past after the French ended their rule in 1954. During the 1970s, thousands of Vietnamese Catholics, especially men and boys, were killed in the middle of the night and their bodies were thrown into the Mekong River, floating

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from Phnom Penh and toward Vietnam (Williams 1970; Chicago Tribune 1971; Kamm 1970). Unlike Vietnamese of other religious groups, they were easy targets because they concentrated in Catholic enclaves. The Mekong River also harboured the Khmer people’s traumatic past. From 1975 to 1978, the Pol Pot regime sought to systematically annihilate all signs of civilization; from religious artifacts to books and artworks, the river was the regime’s dumping ground. Today, this traumatic past still haunts the Mekong River. Within the atmosphere of anti-Vietnamese hostilities, which the Catholic church has further internalized, ethnic Vietnamese Catholics have not been able to openly appease the spirits of their ancestors whose bodies were not appropriately buried and prepared for the afterlife. As for Khmer people, they have been drawn into an internationally supported tribunal that many feel does not seek to heal the nation or acknowledge and reconcile citizens with their past. Instead, critics argue that it has become a playground for international powers to deploy their Judeo-Christian, Western-centric conceptualizations of human rights, individual guilt, and justice (Fitzpatrick 2012). In a Theravada Buddhist majority nation such as Cambodia, these ideas contradict beliefs in karma and reincarnation, which do not conceptualize human persons as isolated and finite but instead as continuously connected to their surroundings and previous and next lives. Growing economic disparities have further exacerbated the pain for both ethnic Vietnamese and Khmer. Many have been displaced again, and forced to remain across the river, away from the wealth that looms around the high rises, casino, and foreign brand name stores visible from their shacks. C ON C LU S I ON

The “resurrection” of Our Lady of the Mekong River, lifted from the bottom of the waterway after decades of neglect, is a glimmer of hope for both ethnic Vietnamese and Khmer in the context of increasing economic inequality and political marginalization. Adherents believe that she has brought them together and revealed their own strength in peaceful and loving coexistence as her children. As a tourist pamphlet about Our Lady of the Mekong River made by ethnic Vietnamese Catholics, who have become the protectors of the statue, notes: “We only know that the Holy Mother really loves her children. She wants to be by their sides to care, console, and bless each and every one who has come to her. Her hands are always clasped in the form that Cambodians would make when praying.

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Her eyes are always looking up toward the sky whether she is praying or blessing her children. She never refuses to listen to anyone who has come to ask for her blessings.” At the bottom of her feet, there is a large engraving of her name in Khmer and Vietnamese letters. Our Lady of the Mekong River’s rising popularity illustrates that ethnic Vietnamese Catholics are key if the Catholic church is to achieve its primary goal in Cambodia: to rebuild relationships with the Khmer people and re-transplant Catholicism in the country. By advocating and facilitating interethnic coexistence through Our Lady of the Mekong River, ethnic Vietnamese Catholics have been more successful in bringing Khmer to the religion than the church has with its Khmer-looking Mary. In fact, more Khmer have been venerating Our Lady of the Mekong River than Catholics who “already believe in her,” in the words of one ethnic Vietnamese Catholic. Because of this success, the bishop of the Vicariate Apostolic of Phnom Penh has not been able to advance the Catholic church’s anti-Vietnamese agenda in Cambodia, or remove the bilingual Khmer/ Vietnamese signs at Our Lady of the Mekong River’s shrine. Not only Vietnamese but also Khmer people have embraced her without concerns about her ethnic association. This is in great contrast to Marianism among ethnic Vietnamese in other countries, where devotion to the Virgin Mary in the image of Our Lady of Lavang has made Vietnamese ethnicity hypervisible (Ninh 2014).11 Moreover, Our Lady of the Mekong River connects Vietnamese Catholics in Cambodia to their ancestors to whom they owe their dao dong (kin religion, in reference to Catholicism’s filial transmission). The sense of continuity that Vietnamese Catholics in Cambodia gain through their devotion to the statue promotes emotional healing as well as opposition to their legal statelessness. By identifying with their ancestors who came to Cambodia generations ago, ethnic Vietnamese Catholics are attesting their long residency in Cambodia and their relations with the country as their quê hu’o’ng (homeland). Many of my Vietnamese Catholic interviewees used this term to refer to Cambodia and not to Vietnam (see also Tarr 1992). As such, devotion to Our Lady of the Mekong River represents “acts of anamnesis against historical and an ongoing erasure of Vietnamese ... distinct presence by forced forgetting” within nation-state paradigms of ethnic belonging (Nguyen-Vo 2005, 169). This form of remembering can play a critical role in opening up the possibility of reconciliation and the pursuit of justice, accountability, and forgiveness (Berendsen 2004, 164–75). Such reflection and reconciliation processes are particularly important for

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displaced individuals and refugee communities such as the Vietnamese Catholics in Cambodia, given the complex and often harrowing nature of their personal and collective experiences (Hoskins 2006; Phan 2000; Nguyen-Vo 2006).

notes 1 For information on Marianism, see for example Phan (2005) and Horsfall (2000). 2 Amer (1994, 218) specifies that by the end of 1978, 170,300 ethnic Vietnamese were expelled and the remaining 30,000 died of starvation or disease, or were executed. 3 These statistics were also echoed by two of the most influential priests in Cambodia, Father Thai (interview 20 October 2010) and Father François Ponchaud (interview 5 July 2010). 4 When the agreement was signed, Vietnam was hosting a sizable number of ethnic Vietnamese who had fled Cambodia, but the Vietnamese government was having trouble integrating them. The agreement stipulated that members of the ethnic Vietnamese population could return to and reside in Cambodia, where they would be allotted a piece of land and identity papers. Most chose to return to the areas they inhabited before their displacement. Although they were not granted Cambodian citizenship, many returning ethnic Vietnamese were able to purchase necessary documents to secure it, often through fake adoption into a Cambodian family. 5 In 1659, under the Vatican’s 1622 Roman Congregation for the Propagation of the Faith (Propaganda Fide) that aimed to regain control of overseas missions from the Iberian crowns by transforming Jesuit missions into apostolic vicariates, French priests formed and led mep (Cooke 2008). 6 The visual localization of the Virgin Mary in Asian countries is common. As I have found, since 1998 in Vietnam, the Virgin Mary has been represented as a Vietnamese woman wearing Vietnamese traditional costume (Ninh 2014). I have also seen local depictions of the Virgin Mary in China, Taiwan, and Japan during my recent visits to these countries. Very little has been written about the inculturation of the Virgin Mary in Asia. However, I have made a short video about this topic based on my research (https://www.you tube.com/watch?v=-2VDYdF5bW0). 7 Father Thai fled Vietnam during the 1980s to escape from communism, but kept his identity as a Catholic priest a secret owing to the church’s repression in Cambodia. If he were to return to the country, he fears he could be imprisoned for anti-communism. As for resettlement in another country

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other than Cambodia, he has sought political asylum in Thailand and Western countries many times but has not been recognized as a refugee. He suspects that, because he has been able to live in Cambodia, international refugee agencies would not support his request for resettlement to another country. Vietnam is one of Cambodia’s closest neighbours and yet the Catholic churches in these countries do not collaborate to serve the ethnic Vietnamese community in Cambodia. In contrast, I have met Vietnamese bishops who travel to other parts of the world, including Taiwan and Japan, to work with local churches and serve their Vietnamese populations. This is a pseudonym. This included an area that later developed into four original Vietnamese Catholic enclaves (Ponchaud 1990). In 1995, Vietnamese American Catholics reimagined the Virgin Mary as a Vietnamese woman to represent their lingering symbolic ties to Vietnam and to each other as a globally scattered religious and ethnic community. In 1998, three years after the US lifted its embargo against Vietnam, a US-made Vietnamese statue of Mary was exported to Vietnam to serve as a model for the reconstruction of Our Lady of Lavang (an apparition of the Virgin Mary who appeared in Vietnam in 1798) as a Vietnamese woman. Since then, ethnic Vietnamese Catholics in many other countries, including Canada, France, Australia, Japan, and Taiwan, have embraced the Vietnamese-looking Our Lady of Lavang.

preface

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6 A Modest Reconciliation: Coming to Terms with Conflicted Stories through Oral History, Dialogue, and Playback Theatre in Montreal’s Rwandan Canadian Community LISA NDEJU RU

There are as many memories as there are groups ... memory is by nature multiple and yet specific, collective, plural and yet individual. (Nora 1989, 9)

The notion of reconciliation has been promoted extensively in relation to post-genocide Rwanda, including by the Government of Rwanda’s National Unity and Reconciliation Commission, the Institute for Research on Dialogue and Peace (a respected, independent, non-sectarian organization based in Kigali), local and international faith-based groups, researchers and scholars, and a variety of ngos. As it is understood conventionally, reconciliation “goes beyond the agenda of formal conflict resolution to changing the motivations, goals, beliefs, attitudes, and emotions of the great majority of the society members regarding the conflict, the nature of the relationship between the parties, and the parties themselves” (Bar-Tal and Bennink 2004, 45). Often it is associated with efforts to achieve justice, perhaps most visibly in the Rwandan context via the gacaca tribunals (Rettig 2008; Sarkin 2001) and the International Criminal Tribunal for Rwanda (ictr) (Akhavan 1997; Uvin and Mironko 2003). Since its inception in 1999, the National Unity and Reconciliation Commission has actively opposed the use of the Hutu/Tutsi binary and has banned “ethnic” stereotyping in public discourse, with the aim of pro-

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moting an inclusive and united national identity. A similar preoccupation with reconciliation is evident in a range of activities undertaken by faithbased groups and others seeking to promote social harmony through psychoeducation about the origins of violence (Staub et al. 2005; Habimana 2009). Beliefs can be slow to change, however. It would be misleading to give the impression that all Rwandans have liberated themselves from the old categories, or that everyone wants to be liberated. The National Policy on Unity and Reconciliation asserts a multifactorial reality in which Rwanda’s history of conflict and mass violence is the consequence of “various historical eras of bad governance characterized by divisions and discriminations based on ethnicity, religion, region of origin and nepotism” (Republika y’u Rwanda, National Unity and Reconciliation Commission 2007, 6–7). To say the least, the discussion around national unity and reconciliation in Rwanda – when and how it could or should happen, and among whom – is complex and fraught, with countless politicians, scholars, and practitioners weighing in. Reconciliation in the usual sense is not the theme of this chapter. I am proud of my Rwandan origins. I was born in Butare and have lived all but the first two years of my life in the diaspora, first in Europe and now in Canada. I am a psychotherapist, a community organizer, and an artist-researcher within the Rwandan Canadian community. My life trajectory and professional involvements reflect my own quest to come to terms with how mass violence and displacement have affected my community, my family, and me. My thinking is informed in part by seven years of research with Concordia University’s major oral history project entitled Life Stories of Montrealers Displaced by Genocide, War, and Other Human Rights Violations – referred to hereafter as Montreal Life Stories – for which I was a co-applicant and steering committee member. As part of this project, I conducted lengthy, in-depth life story interviews with many members of my own extended family, as well as with other community members. I then explored a variety of arts-based methods through which our stories could speak to us, to help us engage productively around the conflicts and historical complexities that continue to affect our lives and well-being (Montreal Life Stories 2013). In this chapter, I introduce and reflect on some of these experiences and their implications. My work suggests that, at least in the Rwandan context, there is an alternative to plunging headlong into a generalized, intersubjective quest for “reconciliation” as it usually is understood. My preferred approach involves helping community members address their own various, multiple ruptures by exploring and coming to terms with personal

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stories. We have seen repeatedly how storytelling – coupled with community dialogue facilitated through an array of arts-based methodologies – can create conditions supportive of more personalized forms of lifechanging, if modest, reconciliation. M Y LOC ATI ON

I am at a loss for words to discuss the decades of political violence that culminated in the 1994 Rwandan genocide; there is always the risk of reifying those harmful categories “Hutu” and “Tutsi.” How can I describe the complex relationships at play within our diasporic Rwandan community in Montreal, or refer to our contested histories, without seeming to be “taking sides”? Yet I have found that the best way to avoid unintended identification with violence – to not allow a particular discussion to reduce us to categories of combatants locked in a zero-sum battle for supremacy – is for each of us to focus on owning our experiences, whatever they might be. Especially in a postcolonial context, our personal stories of the past and present become exceptionally meaningful sources for understanding from whence we have come. Owning and caring for stories calls for reorientation and recovery work among the many of us who have been led to believe such stories do not matter. Describing some of “the narratives of exile and survival” we recorded as part of our Montreal Life Stories work, Steven High (2012, 263–4) writes: Most were exiled before the genocide. They therefore tell a story of prolonged displacement, discrimination, and uncertainty before coming to Canada. They also tell of their helplessness as they watched the genocide unfold ... Everyone had friends and family back in Rwanda. For some, the devastation unfolded before their eyes as houses burned just across the border. For others, it could only be followed on television and radio. Generational differences loom large in these narratives as older interviewees spoke of the anti-Tutsi violence that forced them to flee to Burundi, Congo-Zaire, or farther afield. Younger interviewees in turn spoke of growing up in exile and their often-ambiguous identity. Were they Rwandan, Burundian, Congolese or Canadian? In this spirit, and in the interest of full disclosure, I acknowledge that the collective memories of my own family and many of the other Rwandans I know revolve around multiple waves of persecution and displacement of Rwandan Tutsis, beginning in 1959.

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The 1994 genocide impacted Rwandan Montrealers in so many ways, and shattered our single community into many smaller ones. Survivors who arrived after the genocide brought with them needs and expectations that were different from those of earlier immigrants. For the first time, Hutu/ Tutsi divisions became entrenched and defining. Faith-based groups became popular. Older and younger generations had trouble communicating, and each complained about a lack of common values, understanding, and support. In the 1990s, I worked with a performance troupe of young people roughly my own age who came together around shared interests in their cultural roots and heritage. This group – named Isangano (Where the rivers come together) – did not engage directly with Hutu/Tutsi tensions or the conflicts between early Rwandan immigrants to Canada and later arrivals. But the drumming, clapping, laughing, dancing and singing transcended our differences. Members met once a week to rehearse and enjoy each other’s company, and performed at weddings and other Rwandan community events across Canada and the eastern United States, as well as for general Canadian audiences. Because of its excellent singing and dancing about cows, courage, beauty, and glorious days of old, Isangano was perceived to be a guardian of the venerable Rwandan cultural traditions that our dislocation had rendered all the more important. It helped fill its members’ important needs for belonging, competence, and identification as we shared the strange reality of the aftermath of genocide, experiences of displacement and resettlement, financial struggles, and the challenges of having loved ones scattered across the globe in immigration limbo. Then, ten years after the 1994 genocide, Isangano entered a period of self-reflection and dialogue through a project called Tuganire (Let’s talk about it) (Neumark, Chagnon, and Lachapelle 2011, 224). As community artists, we were challenged to look at our practice critically, reinterpret our reference stories, and consider how we could steer away from cultural conservation and toward fostering community empowerment (Tuganire 2013). Our first experiments with personal storytelling in the context of shared values and community development brought us to the attention of academics at Concordia University; we knew nothing about oral history when Isangano was invited to become part of Montreal Life Stories. At Concordia, I discovered a diverse group of academics and lay people interested in how life narratives could influence activism, culture, pedagogy,

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public policy, and wellness. Coming, as I did, from an ethos of collaborative community art-making steeped in relational aesthetics, I connected immediately with the project’s two guiding principles (Ndejuru 2009): “sharing authority” and “listening with” those who were telling their stories (Frisch 1990; Greenspan 2010). TH E RWA N DA WOR K I N G G ROU P

Isangano became part of Montreal Life Stories’s Rwanda working group. Formed in 2007, this working group’s principal objective was to gather one hundred interviews with community members over a five-year period. We started slowly because we realized that conducting such interviews safely and ethically would require “resolving issues of confidentiality, the physical location of the interview and how information conveyed would be used” (Field 2004, 65). We wanted to avoid inflexible interview formats and processes in favour of open and attentive conversations between interviewer and interviewee (Greenspan 2010). Strict adherence to an agreed ethics framework helped build trust among the members of our working group as well as across the larger community. Most of our working group members understandably assumed we would interview one hundred survivors of the 1994 genocide, as a way to memorialize the dead and to help us “never forget.” Yet, as the daughter of parents and grandparents whose lives had been impacted severely by Rwandan state violence beginning from the time of national independence, it was clear to me that the horrific events of 1994 were connected to the assassinations, politically motivated incarcerations, and displacements that had occurred before I was born. I asked my fellow Rwanda group members to consider broadening our notion of “survivor” to include events of 1959, when the first massacres of the Tutsi took place. Although my request was controversial and not everyone shared my enthusiasm, the group agreed and we widened our scope to include the previously untold stories of many elders who fled Rwanda long before 1994.

“ NO

O N E I N M Y FA M I LY HA S E V E R D I E D A N ATU R A L D E ATH .” 1

The whole world must know at least a little about those one hundred days of genocide in 1994. But the exiles we interviewed also spoke of several earlier distinct waves of anti-Tutsi violence and exodus, and by 2009 we had heard so many similar stories we knew we were beginning to gain a deeper understanding of the pervasive patterns and impacts of systematic

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violence. Interviewees regularly referred to the refugee generations of ’63, ’72, and even ’94 (High 2012, 264). So distinct were the waves of persecution in 1959–60, 1962–63, and 1972–73 that these years are used widely as key identifiers. We decided to organize an intergenerational dialogue day in 2010 to think together about three important pre-1994 periods of organized violence, as part of our community’s annual program for genocide commemoration. We prepared montages of carefully curated life story video clips to prime the discussions, and an invited panel of community leaders shared their own experiences and reflections. The event attracted a large, enthusiastic audience and gave rise to a public intergenerational dialogue, which has since become a regular element of our annual genocide commemoration events. Something important had begun to shift. Beyond the scope of Montreal Life Stories, community members began to interview each other and parents began to break their silences and share untold stories with their adult children. In 2011, community leaders interviewed several young children of 1994 survivors and prepared video montages for a second intergenerational dialogue day. It was sobering to grapple with these school-age children’s conflicting needs to know the truth and to be protected from harm. In Myths We Live By, John Byng-Hall, as interviewed by Paul Thompson (1990, 262), says: As a therapist I need to have a much more active relationship to those family stories than you would as a historian. If I find a family suffering from a dis-abling legend, I need to help them to re-edit their legend. If I get them to re-tell the story at the end of the therapy, they tend to do so in a different way, less moralizing, less rigid, less splitting into good and bad. We end up with a more real picture of people with both strengths and weaknesses. In a way legend becomes less mythical. Sometimes I probably kill the legend all together. Or I might help them to build an alternate story of how they got into their current difficulties, and how they came out of it. It would hopefully be a healthier story. In my case, the “family suffering from a dis-abling legend” is an entire community. We do suffer, but I am so weary of those who glibly pathologize our community life. Political violence and its consequences should not be considered a disease. I do agree that the notion of trauma can extend

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beyond individual experience to describe a collective phenomenon. There is “a psychic dimension to the conflict of history; a sense that profound suffering has been inflicted upon and endured by a people, a community, or a nation, and that both the suffering and the response to it are integral to the historical record” (Dawson 2004, 184). So while not “medicalizing” Rwandans’ experiences, it is important to recognize the profound traumatic impact that historical events have had – and continue to have – on Rwandan communities, and to acknowledge our need for healing. Dawson (2004, 186) describes such healing as “working on the connections between the psychic and the social, the individual and the communal, telling and listening.” With its emphasis on the continuity of a lifetime rather than on disruptions and trauma, life story interviewing has introduced my community to a new telling/listening culture and to a rich content archive for fostering connections with each other and realigning our individual selves. How have we worked with these stories? What does it mean to place stories in dialogue with each other? How have various arts-based practices helped us discover patterns, themes, and common threads so we can tease out the specificity of each story while simultaneously bringing the big picture into clearer focus? I devote the balance of this chapter to discussing and illustrating one method that has proven to be particularly powerful for us – performing oral histories through the use of adapted playback theatre techniques. This unique form of improvisational theatre has helped us discover nuance and texture in our shared stories while, somewhat counterintuitively, creating safe public spaces for the expressing of intimate, exceptionally difficult subject matter. P L AY B AC K THE ATR E

Playback is a form of improvised community theatre in which brave audience members (“tellers”) recount, for all to hear, personal stories in keeping with an announced theme. The troupe’s “conductor” clarifies any essential details with the teller, then asks the members of a small company of actors (usually four to six) to interpret each story (“play it back”), specifying one of the many playback forms that range in complexity from coordinated gestures to fully formed dialogue. There is no huddling, cueing, or stage direction before the actors respond to what they have heard. This highly intuitive group improvisation process often results in revelatory, lyrical sketches. Orthodox playback theatre uses no props except for

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brightly coloured scarves and a few chairs. Sketches are usually underscored by musical improvisation from a musician troupe member who is positioned on stage with the actors. Over the course of a playback theatre performance, relationships between the various stories and sketches begin to emerge, and gradually coalesce into a coherent, engaging whole. Jonathan Fox and Jo Salas created playback theatre in 1975, and the practice has since spread informally around the globe. Various troupes have employed it for purposes ranging from pure entertainment to corporate team building to tackling the weightiest of subjects. Playback at its best demands intense engagement with stories and storytellers, and as an experienced playback actor and conductor I have learned to use a set of tools and techniques that offer a productive counterpoint to traditional interview methodologies. Fox refers to the practice as “engaging whole systems” and suggests that a playback troupe’s essential spirit and posture should be that of performing an act of service (Fox and Halley 2007, 561–72; Fox 1994). To facilitate the communal holding, sharing, and processing of our Rwandan stories, along with those of the other communities participating in Montreal Life Stories, the playback theatre troupe of which I am a founding member – the Living Histories Ensemble (lhe) – developed a highly specialized practice at the intersection of oral history, deep listening, live performance, and trauma studies. While I am committed to Fox’s idea of service and believe that tellers and their stories demand the utmost care and respect, I am not convinced by his insistence that a teller’s interest is always best served by a literal reinterpretation. On the contrary, the lhe’s understanding and experience has been that playback theatre done well can be a particularly effective way to process post-genocide stories precisely because it need not replicate the power relations of any given situation, nor is it a therapeutic method per se.2 Playback theatre creates space in which to experience playfulness and possibility, imagination and co-creativity. In the face of our massive post-genocide loss of meaning, my community needs both fact and fiction, and we need such means of engaging with each other effectively. Yes, we want people to recognize the “facts.” But we also need to believe in, invest in, dream of, and tentatively hold a different reality, if that reality is ever to become possible (Herman 2000).

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TH E L I V I N G HI STOR I E S E N S E M B L E

A diverse group of graduate students, educators, researchers, and therapists formed the lhe in 2007. Each member came to us with playback theatre experience in one or more other troupes, and each was particularly attracted to and invested in the Montreal Life Stories subject matter because of her or his own family history and/or research interests. We began our work together through a series of closed intensive workshops, exploring and playing for each other our own personal stories of displacement and conflict. Later we cultivated and deepened relationships with Montreal Life Stories stakeholders: first with the researchers and interviewers, and eventually with every cultural community group involved in the project. We developed a standard practice of holding a preliminary session with community organizers in the days prior to each playback performance, to demonstrate how we work and decide together how best to frame the theme at hand. Any description of playback theatre falls short of fully conveying the way an audience resonates when someone in its midst dares to reveal something difficult and personal in public. No report can capture the awe in witnessing a skilled playback actor’s phenomenal listening skills, or how magical and satisfying it is when one teller’s story calls for another, and then another, and another, in a smooth yet entirely serendipitous narrative flow. We have worked hard to learn our craft, to be in a position where we can dare to “play” with stories of mass atrocity. What we do is so in the moment, so collaborative and synergistic, that no single one of us could possibly control or fully understand intellectually what is happening. We frequently review video recordings of performances in order to study where and how our intuitions carried us. Here is a description of a vivid moment that encapsulates the fleeting, transformative power of performed storytelling: well into a difficult session in which we were exploring Rwandan Canadians’ genocide memories, a young audience member seated in the darkness at the back of the room caught my eye. She pointed to another young woman next to her, who seemed to be overcome with tears, and announced: “She would like to tell a story!” I stopped the performance, walked to the back of the room, held and comforted the sobbing woman for a while, then walked with her to the stage. She did have a story to tell, direct and uncomplicated: she had been a small child during the 1994 genocide. Her mother had left her in a safe place, promising she would return. But she never did. The teller chose Catherine to play herself and Nisha to play her mother.

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Catherine stands alone. Nisha, in the background, says quietly, “I promised to return.” Catherine calls, “Mother, where are you?” Nisha moves toward Catherine, and gently puts her arms around her, rocking her. “I am here,” she says. “I’m watching you. I am so proud of you.” Catherine murmurs, “I’ve missed you.” Nisha responds, “I know. I’m sorry.” Catherine stands straighter, as if taking courage. She calls again, “Look Mother. Look, I am here. Can you see me? I am working hard.” Nisha responds, “Yes, I can see you. You are so beautiful, and strong, and wonderful. I am so proud of you.” Catherine takes a few tentative steps. Then, gaining confidence, she walks more steadily, all the while telling her mother how she needs to know she is there, seeing her, caring about her, in order to be strong and well and happy. Nisha’s verbal responses carefully follow Catherine’s rhythm, but Nisha does not move. Then Catherine cries out, “I can do it now. I can walk. I can make a life.” In the best lhe tradition, our actors had listened deeply to the teller and chose to “stay with” the story. On that basis, they risked stepping away from the literal details (something that would horrify playback theatre purists) and moved squarely into the “impossibility of survival.” In a book co-authored with Shoshana Felman, Dori Laub writes, “In order to undo the entrapment of the traumatic reality and its re-enactment, one must engage in a process of constructing a narrative, reconstructing a history and essentially, of re-externalizing the event” (Felman and Laub 1992, 69). But there was so much more to this breathtaking playback moment than merely re-externalizing a traumatic event. Catherine and Nisha took a step toward healing a broken dialogical connection, daring to embody a hopeful suggestion of a possible “way out” of the teller’s circular, frozenin-time trauma narrative. They correctly sensed, without having been told explicitly, that the teller longed to hear her mother’s voice, to sense her goodness, encouragement, and confidence in her. How many such connections did the genocide break? How many have been broken since 1994? Judith Zur (2004, 57) writes about how memories connected with the dissociated aspects of the self, frozen in the chaos of “that time,” become “inaccessible and unspeakable and in the end ... [they can] neither be remembered nor truly forgotten.” Reflecting on our performance of her story, a teller once told me: “It is safe because I am not really the one saying it.” Somehow she felt protected despite the way she had just revealed publicly – perhaps for the first time – a profoundly personal and traumatic memory, and despite the way we actors took liberties with her precious narrative.

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I RR E C ON C I L A B L E D I FF E R E N C E S ?

The lhe’s first invitation to perform for Montreal’s Rwandan community came after years of hoping. And the performance would be during the annual month-long genocide commemoration, no less! This vote of confidence left me at once excited and humbled. On the evening of the performance, the little studio theatre was packed; many in the audience were child survivors of the 1994 genocide. As always, we actors began by introducing ourselves one by one, while demonstrating how playback theatre works. Slowly, gently, we prompted audience members to share story fragments. We played back these simple stories until everyone seemed to understand the idea. Before long we were rolling along fairly well, if somewhat superficially. I was the conductor. Cautious audience members kept asking me in various ways whether we would take good care of their stories if they trusted us to play with them. Would playing with their story change it, and maybe even render it painless? And if the pain did go away, would that be okay? Is it “right” to feel no pain, or would it be a betrayal of the many loved ones who perished? Many authors address this ambivalence (Greenspan 2001; Felman and Laub 1992; Caruth 1996; Herman 2000). Bravo, Davite, and Jalla write that the act of remembering “implied both keeping faith with the dead and unmasking the executioners. Memories had to fight hard to win attention and counteract the indifference of a world which was reaching out toward the future and seeking to confine its past to the archives, rather than face up to it.” They continue: “This search, this quest produced ambivalent feelings: the need for truth, and the difficulty in stating it; the personal urge to remember and also to forget; the wish to bear witness on one hand and to stay silent, as protest” (Bravo, Davite, and Jalla 1990, 97). The more I tried to respond to the audience’s concerns that evening, the worse it got, because I was not hearing and not understanding. What sounded to me like factual questions requiring factual answers was in fact the sound of boundaries being drawn; many audience members were not sure they wished to go deeper. The lhe actors seated behind me witnessed this exchange, of course, and sensed correctly that our entire performance was dangerously close to stalling. Nisha stepped forward to ask me directly on behalf of the audience why I was so sure it is a good thing to play with our traumatic stories. I responded with more over-intellectualized explanations, still not getting it: many transitional justice

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approaches are based on the premise that, however painful, truth is a prerequisite for healing. The social psychology approach suggests that “the reconciliation process should openly address painful questions of past conflict so as to build a foundation for normal peace relations” (BarSiman-Tov 2004, 5). My friend Nisha would not let me off the hook. “When did this obsession of yours begin?” she demanded. “1990,” I blurted out, without thinking. She sat me down in the teller’s chair and a rambling story came pouring from my mouth. In 1990, my parents took my two younger sisters and me to visit Africa for the first time since I had left Rwanda as an infant. In Burundi, I met my mother’s exiled sister, who looked just like my mother and clearly loved me although we had just met. Then we stayed with my mother’s parents in the squalid Ugandan refugee camp where they had been living since fleeing Rwanda in 1960. Thirty years later, they were still there in the same huts, and still did not have running water. Elderly people sat around drinking homemade alcohol all day long. Skinny cows with big horns were the people’s pride and joy. There were children everywhere, dressed in rags, with swollen bellies and bloodshot yellowish eyes. Camp life made my heart heavy. Would things ever change? Filling jerrycans at the well and carrying them on our heads was hard, unfamiliar work. I felt clumsy, big, and fat next to the scrawny, laughing children who managed to accomplish this chore quickly, several times a day. I also met some of my young adult cousins and their friends, people my age who looked like me. They took me to visit Kampala, and claimed they soon would be going home to Rwanda. They said they were soldiers. I asked my mother about all this. Were they going to war? Would people die? She said not to worry because for thirty years we exiles had been trying to go home, to no avail, and this would be one more failed attempt. I scrambled to understand who and what “we” was, and remained worried and frightened because the young people I had met seemed so very determined. I argued with a cousin about the futility of war. He countered with the miserable reality of the status quo: refugee camps, malnourished children, not being permitted to enter our own country. Did I condone that reality? Of course not, but I could not imagine how war possibly could be a better alternative. My privileged family and I returned to Canada in September 1990, and the war for the right to return to Rwanda began one month later. Many of the young men I had just met in Uganda, Kenya, and Burundi joined that war, as did young men from the global Rwandan diaspora, including

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Rwandan Canadians. Cousins, uncles, and friends became fighters. Life changed for all of us. I could not make sense of it, especially from the vantage point of my Canadian reality. East Africa seemed like a parallel universe. When the peace talks in Arusha began, I held my breath. Then in April 1994, the airplane carrying the presidents of Rwanda and Burundi was shot down and the killings began. At home in Montreal, I watched the daily televised scenes of Rwandans hacking other Rwandans to death and was tormented by those lingering shots of bloated bodies floating down the river. “That is why I want us to talk,” this playback-conductor-turned-teller told the audience. “That is why I want us all to learn how to talk, to share our stories, and especially to listen to each other. I am doing everything I can to make sense of it all, to reconcile what has for me, and for others of you in our community, always seemed irreconcilable.” And then the actors played back my story about “going home” to Africa, with Lucy as the teenaged me. Lucy, who is of Chinese Vietnamese heritage, was able to bring some needed lightness to that room full of Rwandan Canadians with her amusing depiction of my amazement and delight at being completely surrounded by people with dark skin like mine. But much more importantly, first in the telling and then the playing back of my own story, I felt something important shift in my relationship with the audience. Hearing about my own struggle to come to terms with complex and seemingly irreconcilable realities gave everyone a firmer basis for continuing and deepening our community conversation. And for me the process of first finding the words, and then witnessing my own dramatized story, eased something deep inside. I came away from that performance overwhelmed with emotion and overloaded with thoughts, and reflections on the experiences of that evening have yielded new understandings of how my own story is playing itself out through the choices I make and the work I do. FRAMING

“ R E C ON C I L I ATI ON ”

In a recent performance, a teller described his long, unhappy experience of being a refugee. He spoke in such vague, incomplete sentences that it was difficult to understand what he was trying to say. Even when I prompted him for clarification, his sentences remained unfinished. He pointed to “here” and “there” and “here” and “there,” shaking his head. I listened patiently, then decided to ask the actors to play back his story even though he had given us very, very little to work with.

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Catherine rose to the challenge, and began by standing alone at centre stage with an armload of scarves. She scattered the fabric across the floor, making bright patches of colour that contrasted with her flat, stoic expression. Then she paced back and forth, pointing to the parts of her story – or perhaps they were parts of herself – she had left behind in various places along the journey. “This happened here,” she said, standing near one red puddle, “and that happened there.” Walking and pointing, Catherine echoed the teller’s words, using an ever more forceful voice and cadence. Tears streamed down the teller’s face. He nodded in recognition as she pointed at the scarves, one after another. We had no way of knowing what what he was seeing, but soon nearly a hundred heads were nodding in unison with him. We felt the depth of meaning the performance so obviously held for him, and respected what had been left unspoken. He flashed Catherine a luminous smile. For all of us something felt lighter because, even though we didn’t know what it was, something the teller found vitally important had been vitally affirmed. Bar-Tal and Bennink (2004, 23) write that the psychological changes in the process of reconciliation “take place via the slow psychological processes of information processing, unfreezing, persuasion, learning, reframing, re-categorization, and formation of new psychological repertoire. These processes are slow because the psychological repertoire formed during the conflict is central and held with high confidence. Therefore its change, which must encompass the majority of society members, is a complex, arduous, prolonged, and many-faceted task that needs to overcome many inhibiting factors.” Sometimes there are no words to express what is felt. The slow, tentative process through which one individual attempts to articulate themselves underscores that reconciliation is a continually negotiated process, rather than a final outcome. For many of us, the process will be – and already has been – a lengthy one. Later in that same performance, we were startled when a woman in the audience began to sob loudly, repeatedly calling out, “What if they can’t hear?” Nobody seemed to understand what her outburst meant. “The leaders, what if they can’t hear?” she continued. I began to realize that she was expressing deep unease about the future. Although the Rwandan situation then seemed relatively stable, what would happen beyond the term of the nation’s current leadership? Would there be chaos once again? War? Slaughter? Was it reasonable to invest hope in such a fragile reality? She had already lost so much and wanted desperately to hope, but was afraid for her and her family’s safety. When we played back a sketch about this

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feeling, it was unlikely that anyone in the audience could have claimed immunity from similar doubts and fears. Our practice of performed storytelling in the Rwandan Canadian diaspora demonstrates how playback theatre-facilitated community dialogue can create valuable openings and safe spaces where people can feel constructively vulnerable together without a need for defensiveness. Played back stories such as these, in fact, create the conditions for complex visualizations of what personalized, contextualized reconciliation might look like. MA KI N G A S PAC E THAT I S N E I THE R P OL A R I Z E D N OR P OL A R I Z I N G

Violence and terror dismantle established categories which are assembled in new ways, causing confusion and hindering people’s attempts to integrate the self of the past with the self of the present. (Field 2004, 60–79)

In the summer of 2011, the Rwandan High Commissioner to Canada invited the lhe to participate in a weeklong Itorero retreat for seventeento thirty-four-year-old Rwandan Canadians from across the country. In Rwanda, Itorero is an extensive program that falls under the auspices of the National Unity and Reconciliation Commission. It is an updated and reimagined version of a traditional coming of age process (originally Itorero was only for males who were candidates to become intore, members of the elite traditional army) through which various aspects of cultural heritage and tradition are explored, all the while providing opportunities to assess each young adult’s abilities. In its new form, Itorero is an unapologetic campaign for unity. Rwandan Canadian community leaders had petitioned the high commissioner to offer an adapted form of Itorero in Canada, and she responded by organizing an impressive program of Rwandan and Canadian speakers. In addition to presenting a playback theatre session near the end of our five days together, I was asked to be available throughout the retreat to provide mental health support and facilitation. Although our particularly emotional playback performance left a number of people shaken, the lhe troupe, together with the audience, decided against pretending these emotions did not exist. Gathered together under a big tent on a sweltering August day, the young people impressively processed some extremely difficult material. At one point, I asked the audience to think about times when they had felt conflicted. The man

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who spoke up first told me how afraid he is about the possibility of one day facing former child perpetrators of genocide. Could children trained to be killers ever reintegrate into society as adults? I asked the actors to play this back as a “double” or “pair,” a playback form designed to express ambivalence. Warren and Nisha stand side by side with linked arms, feet planted, forcefully gesturing with their free arms. We use embodied performance like this because it helps us discover and express what is difficult or even impossible to accomplish using text or other media. Ironically, I now must trust that transcribed dialogue alone can evoke at least some of the enormous symbolic power of what happened next. Warren and Nisha struggle to convince and physically move each other: Warren: I don’t want to go there, I don’t know where it’s going. Nisha: If you go you will see. Warren: I don’t know what it’s going to be like. Nisha: Try one step. Warren: What about the path behind us? Nisha: What about the path before us? Warren: What about the path behind us? It’s straight. It has a direction. Nisha: What about the path before us? It’s uncarved. Warren: But there is nothing. It’s mud! It’s mud! It could be a hole. Nisha: It could be an ocean. Warren: It could be a cliff. Nisha: It could be the sun. Warren: But, but – what if we fall? Nisha: What if we rise? I discovered an echo of this performance in the work of Susan D. Rose who, similarly to Graham Dawson (2004), argues that art can be a medium for healing historical wounds. She suggests, “Recovery actually involves remembering the connections between body and mind and spirit. It involves picking up the threads of discontinuity and making sense of them, it calls people to re-weave the fabric of their being” (Rose 2004, 175). Later at the same Itorero performance, a young man responded with a story of his own, awkwardly explaining that he is “half”: I was six and half years old when I was separated from my family. My brother, who is a year and a half older than me, raised me for two and

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half years ... All we had was a gun ’cause my father was Hutu, my mother was Tutsi, we were not pure, and why I say this, I’m saying this because my uncle who was Hutu, actually died for us when they came to kill us and the last thing he gave my brother was a gun and he said please protect your little brother ... I’ve been in five countries. I’ve seen all sorts of things, and to answer your question about the youth, we’ve learned. We know the consequences, all the bad things. Is it ever going to stop? It has stopped already. Now we don’t ask ourselves, “Oh, are you Tutsi, are you Hutu?” We ask: “Are you Rwandese ... ?” [interrupted by a lengthy standing ovation]. The last point I was going to make [is that] somebody else was concerned that culture is going to stop, the norms are gonna, OK, the norms always change, but don’t lose hope, the intore that are going to come out of this ... [loud cheering from the audience] we’re all going to make sure that our children and our children’s children know what it is to be Rwandese, know their culture. This is why we’re here. This is why we’ve signed up and stopped everything we are doing for a week, to come and learn what it means to be Rwandese [loud support from the audience]. What caused this young man to feel safe enough to risk sharing such a story? And why did our lhe players feel safe enough to present their remarkable response? Please note that Catherine and Nisha improvised their sketch primarily in French (the lhe shifts seamlessly between both official Canadian languages), compounding the risk of losing something in translation here. I offer a transcription, along with my English translation of the French portions: Catherine stands with arms spread wide. A long piece of cloth is draped over each forearm – one is white, one is brown. She speaks with intensity: Je ne suis pas n’importe qui. Quand je parle, quand je parle, je parle d’un homme qui a goûté profondément les oppositions. (I am not just anyone. When I speak, when I speak, I speak as one who has known opposing forces deeply, who has tasted them.) As she speaks, her outstretched arms alternately swing to the centre: Hutu-Tutsi, Tutsi-Hutu, Hutu-Tutsi, cette opposition là est dans mon sang. J’ai marché avec cette opposition là dans mon sang. (Hutu-Tutsi, Tutsi-Hutu, Hutu-Tutsi, his opposition is in my blood. I have walked with opposition in my blood.)

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Catherine moves in a circle, arms still alternating. Nisha follows closely behind, muttering: Hutu-Tutsi, Tutsi-Hutu, Hutu-Tutsi ... Nisha suddenly pulls Catherine against her body and gracefully folds her forward: Viens, mon petit frère. (Come, little brother.) In a smooth movement, Nisha wraps her upper body around Catherine’s, and extends one arm in a defensive posture. Hidden and protected by Nisha, Catherine continues talking: Combien de temps cette opposition entre Hutu et Tutsi la va me ruiner la vie? (How long will this Hutu-Tutsi thing keep ruining my life?) Nisha abruptly throws Catherine to her knees. Her head is on the floor, arms outstretched in front of her. Still holding the two cloths, she cries out: For how much time is this going to hurt me like that? She lifts her head: Vous parlez à la jeunesse et la jeunesse vous dit que dans cette opposition il y a une blessure. (Speak to the youth, and they’ll tell you that this opposition contains a wound.) Catherine lifts her arms, hands joined, holding the cloths high, as an offering. She yells: It’s enough! C’est assez! It’s enoooouuugh! She begins a rolling movement with her hands, twisting her two strips of cloth into a single bundle. She speaks confidently, clearly, slowly: Je parle aujourd’hui d’une race, qui s’appelle le Rwanda. Je parle aujourd’hui d’une race, qui s’appelle le Rwanda, uni. (I speak of one people today. It is called Rwanda. I speak of one people today. It is called Rwanda, united.) Nisha has selected three strips of cloth in the blue, yellow, and green colours of the Rwandan flag. Holding them above her head, Nisha leans toward Catherine, slowly swaying. Catherine mimics her motion and continues: Mon frère s’est occupé de moi, je me suis occupé de lui. D’humain à humain, d’homme à homme. Je parle d’une race aujourd’hui, qui

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s’appelle le Rwanda. (My brother took care of me, I took care of him. From human to human, man to man. I speak of one people today. It is called Rwanda.) Catherine speaks louder and louder. Cradling her infant-sized bundle of cloth with both hands, she says with conviction: My children, you will know where you come from. Mes enfants, je vais vous dire d’où vous venez. Votre culture, vos plats, vos couleurs, vos odeurs, vos histoires ... (My children, I will tell you where you come from. Your culture, your food, your colours, your smells, your stories ... ) Catherine steps forward. Nisha stands behind her, silently echoing her movements. Catherine slowly and dramatically rotates her upper body and head, raising her hand to her mouth and calling out at the top of her lungs: Vous les saureeeeeeeez! (You shall knooooow them!) Neither Catherine nor Nisha has much specific knowledge of Rwandan history or culture. Catherine is of mixed European Jewish and French Canadian heritage. Nisha is a Canadian of South Asian origin. What they brought to that highly charged moment was their exquisite listening skills, intuition, and uncanny talent for finding eloquent metaphors across cultures. Above all, they responded to a brave young storyteller with a bravery of their own, and together created a performed response that inspired and moved at least some in the audience a little nearer to wholeness and, I dare say, toward the modest reconciliation we seek. I N C ON C LU S I ON : LOOK I N G FORWA R D

Performance is not in itself politically radical, relationships between participants and practitioners are not automatically trusting, and theatre is not necessarily an instrument for change. (Nicholson 2005, 24)

During the several months in which I have been thinking about and preparing this chapter, I have become a mother. I am acutely aware that about half of all Rwandans alive today, including my little son, were born after the 1994 genocide (nisr, moh, and icf International 2012, 12). Everything they learn about historical genocide in Rwanda will be based not on direct experience, but on the stories of others. That is a blessing, of course. And it is a blessing that the current Government of Rwanda offi-

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cially condemns the use of “ethnic” categories. But motherhood has brought home to me as never before the central role of storytelling, for good and for ill, and has renewed the urgency of our small efforts to help people tell, listen to, and come to terms with their stories of trauma. It is our duty as parents to help our children develop an ability to process the stories they will receive and boldly create new ones. Urumuli (The light bearers) is an association of grandmothers in our community who wield a great deal of influence by virtue of the respect our tradition confers to mothers and elders. One of their favourite activities is to rent a hall and organize a community meal and entertainment for several hundred people every Mother’s Day. It is always quite a scene: so loud with conversation and recorded music one must shout to be heard, chaotic with constant comings and goings and with young children running everywhere, and long with entertainment – a jam-packed multi-hour variety show with community performers of all ages and talents. The lhe was invited to participate and was assigned the valuable twenty-minute time slot at the very beginning of what proved to be a five-hour program. When I witnessed the noise and chaos that evening, I despaired and seriously considering bowing out. I didn’t bow out, and just moments before walking on stage I thankfully realized the obvious. The first words I spoke into the microphone were to ask, in both official languages, that the forty or so wide-eyed young children in the audience come up and join us. I invited them to tell their “mother-stories.” Everybody had one, of course; the hardest thing was to patiently wait to tell their stories one at a time. We heard silly, childsized stories about misunderstandings and the messy, normal stuff of daily life. Our troupe engaged with every story seriously and played them back creatively, to the childrens’ delight. The room grew still as adults in the audience listened every bit as intently as we actors did. All seemed to agree on at least one thing that evening: nothing is more important than our children. Then the mood suddenly shifted. A man stood at his table and said that he too wanted to tell a story about his mother, who had been killed in the 1994 genocide while trying to protect several children – children from other families, not even her own. I asked whether there was a particular story or a trait of his mother that he wanted us to work with. He said no, that he trusted us to do something good, then sat down. It is rare in our community for genocide stories to be invoked publicly outside the annual April commemoration period, and I had not seen this coming. The teller chose to open an extraordinarily risky space involving

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a large and diverse audience, a cherished memory, a story about the gruesome mass murder of a woman and several young children, Mother’s Day, and all in the presence of dozens of youngsters, most of them close enough for me to reach out and touch. “Let’s watch,” I said, giving the customary playback theatre signal that a sketch is about to begin, but with absolutely no idea of what to expect. I was terrified, in fact, imagining some of the more awful ways this could go badly wrong. Joliane stepped into the risk: “No. No. You can’t have them,” she said calmly and firmly. “No. You’ll have to go through me first.” As she spoke, she gracefully comforted imaginary children, shielding them from danger. While Lucy and Nisha picked up on Joliane’s calm strength, busying themselves in supporting roles, I grabbed a colourful scarf and shaped it to look like a bouquet. Silently dropping to my knees, I slowly, solemnly offered my “flowers” in tribute to this heroic mother. The four of us froze into a tableau and remained still for an eternity. When I stood to check in with the teller, that big party room was perfectly silent and still: “How was that for you?” He placed his hand over his heart, smiled, and slowly nodded. Hundreds of people expelled a collective breath. Successive waves of violence have eroded Rwandans’ self-confidence and ability to trust, and the damage done to our collective self cannot be underestimated. I have no recall of the two years I lived in Rwanda. Nevertheless, at least one of my feet is planted firmly in an African reality where there is little neutral ground, where forces pushing for “ethnic” division are very much alive, where fear and self-doubt run free. We peg each other as victims or perpetrators, killers or the killed. Every party considers itself wronged. I am convinced that if we Rwandans can learn to tell and listen to our own stories, whatever they might be, we will tap a hidden reserve of trust and community that will propel us toward the better place we long for. The lhe employs a particular set of skills with the aim of reawakening our storytelling culture. Anyone can learn these skills, and we are prepared to train whoever asks. But we are not evangelists for playback theatre. Creative listening is what we seek, and playback is but one of many tools available. We know the value of playing with our stories – of “creating a path by walking it” – and we seek to demonstrate this knowledge in ways that inspire others to join the struggle, in ways big and small. The child survivor “half” man may never again feel the need to apologize for not being “pure.” The young woman who shared the tragic story

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of her mother who never returned may never need to tell that story again in quite the same way. I have little doubt that we helped both of those tellers lay something important to rest, perhaps only to make room for more pain. But that is the point – as we come to terms with our traumatic stories, one by one, we keep clearing the deck, gradually reducing the purchase of forces beyond our control. Every one of us must make peace with her own stories. Collectively we must learn to hear with open hearts, without allowing stories to trigger judgment and violence toward ourselves or others. This is the “modest reconciliation” I am looking for – a reconciliation that does not insist on a prerequisite apology that may or may not ever arrive. I pray that successive generations will know better than mine how to process violence, not by choosing to identify with or against it, but by bravely owning one’s piece of it – for surely we all own a piece – and then achieving a modest reconciliation with whatever we hold in our hands and our hearts.

notes 1 This stunning comment by Philibert Muzima, Rwandan Canadian survivor of the 1994 genocide, helped bridge the difference between the experiences of the survivors of 1994 and those of the earlier exiles. His interview is included in the Montreal Life Stories archive at the Concordia University Centre for Oral History and Digital Storytelling. 2 Psychodrama, developed by Jacob Levy Moreno, can be used as a tool for psychoeducation but is primarily a form of analytic therapy. Developmental Transformations, created by David Read Johnson, is a form of drama therapy. Theatre of the Oppressed, developed by Augosto Boal, emerged out of the Freirian quest for emancipation and social justice. All three of these forms have influenced our lhe practice.

Acknowledgments

PA RT TH REE

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7 Truth-Telling, Internal Displacement, and the Peace Process in Colombia ROBERTO V IDAL LÓPEZ

An internal armed conflict involving the government, leftist guerrillas, and a variety of paramilitary groups and criminal bands has endured in Colombia for over sixty years.1 The conflict has generated 3.6 million internally displaced persons (idps), as well as 113,233 refugees, 282,344 people in refugee-like situations, and 59,954 asylum seekers (acción social 2010; unhcr 2011, table 2). A comprehensive truth commission that investigates major human rights violations, including the uprooting of millions of Colombian citizens, will be essential to a transition to peace. As I describe in this chapter, there have been several truth-seeking and truth-telling initiatives in Colombia over the course of the last decade; they are part of a long tradition of national commissions dedicated to the study of violence.2 If a comprehensive, national, state-backed truth commission were to be established, this mechanism of “truth production” would need to connect to other justice and reparations processes, as well as guarantees of non-repetition, in the context of a transitional justice agreement.3 Given the ongoing nature of the armed conflict, the state and civil society agree that the establishment of an official national truth commission should be postponed to a future, post-conflict period. In the meantime, other types of truth-telling initiatives, sponsored by official and unofficial actors, have made important contributions to upholding idps’ rights in Colombia. In order to maximize the role that truth-telling may play in the consolidation of peace and the resolution of displacement in Colombia, proponents must respond to several challenges. Beyond determining the appropriate timing of an official national truth commission, these challenges

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include enabling the secure participation of displaced persons in truthtelling processes, navigating social and political contestation of these processes’ priorities, and responding effectively to the ways in which the Colombian government and other actors have used the rhetoric of truthtelling and transitional justice to advance their own interests. In this chapter, I offer a contextual analysis of the many truth-telling initiatives that may help direct Colombia toward peace, as well as the appropriate timing of a truth commission. I base it on recognition of the need for particular consideration of idps’ demands and expectations with regard to truth-telling.4 This is particularly critical in Colombia, as idps have found that various sectors of government and conservative civil society groups still contest recognition of their plight and the existence of the country’s broader humanitarian tragedy.5 Truth-telling processes are sometimes assumed to be conducive or even essential to peace and reconciliation. While I do not take the links between truth-telling, peace, and reconciliation for granted, I recognize that there is a widespread demand in Colombia – including among the displaced – for respect for the right to truth about the violations that have fueled the country’s conflict and forced migration crisis. Given this demand, a wide range of truth-telling initiatives – including but certainly not limited to a national truth commission – will likely play an important role in the transformation of conflict and the gradual pursuit of reconciliation. The chapter consists of four parts. In the first, I provide an overview of the armed conflicts and internal displacement in Colombia. In the second, I am concerned with the diverse array of Colombian truth-telling initiatives that official state and private actors have undertaken in the recent past. In the third, I describe idps’ role in the truth-telling processes. Finally, I discuss particular issues and concerns the Colombian case raises. The chapter is based on an analysis of the relevant legal and policy frameworks and political dynamics and is informed by my experience working as a lawyer with idp communities across Colombia. CO NF L I C T A ND IN TE R N A L D I S P L AC E M E N T I N C OLOM B I A : A B R I E F OV E RV I E W

Colombia has experienced a permanent state of internal armed conflict, with varying intensity, since the 1950s. Over more than sixty years, many armed actors have come and gone from the conflict. From 1940 to 1957, Colombia’s traditional political parties – liberal and conservative –were involved in a civil war. In 1957, the parties signed a series of agreements to

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share control of the state and alternate the presidency between them, with all other parties legally excluded – a provision that mainly targeted communists.6 In the 1960s, armed groups of peasants who had been expelled from their lands, together with the Communist Party, launched the Revolutionary Armed Forces of Colombia (farc), a guerrilla group that continues insurgent hostilities against the state to this day. Beginning in the 1970s, an assortment of other leftist guerrilla groups also joined the fray, with varying degrees of impact. In the 1980s, drug dealers involved in the production, refinement, and trade of coca leaves for cocaine emerged as a new group of actors in the Colombian conflict. Guerrillas began to target land owners, including drug dealers, through extortion and kidnappings. In response, drug dealers created paramilitary groups in collusion with land owners and the Colombian army (Grupo de Memoria Histórica 2010, 290). From the 1990s onward, the United States government has supported the Colombian government’s struggle against the drug trade and, soon after its inception, extended this support program to include fighting leftist guerrillas. At present, after a sustained and aggressive campaign against them, the farc guerrillas have suffered heavy losses but still maintain important military power in some regions of the country. Despite the efforts of the Colombian and United States governments, drug trafficking has had a significant economic impact over the last ten years, and has fuelled the country’s continuing armed conflict. Several peace agreements have been reached over the course of this long confrontation. The most successful peace initiative culminated in the constitutional reform of 1991, when four guerrilla groups were demobilized and integrated into the political arena as successful parties in the democratic system. Unfortunately, these groups did not include the farc. In 1998, a period of public and direct negotiations between the farc and the Colombian government was unsuccessful, and the conflict continued. By 2005, in a separate peace initiative, the main paramilitary federation, the United Colombian Self-Defense Army, was demobilized.7 While there is optimism surrounding the negotiations between the Colombian government and the farc that began in 2012, these negotiations have not been accompanied by an end to armed violence or to displacement. In light of this reality, contemporary Colombian history can perhaps best be described as consisting of chronic armed conflict paired with chronic peace negotiations in which periods of relative peace have not led to sustained decreases in fighting. On the contrary, lulls in the conflict have offered the armed actors opportunities to reinforce their fight-

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ing capacities. Furthermore, in contemporary Colombia, peace and stability coexists with armed conflict, a situation made possible by the great differences between urban and rural contexts and between geographical regions with distinct economic, social, and cultural traits. The conflict involves a diverse array of actors, motivations, regional interests, and victims. It is difficult to provide a comprehensive explanation of the complex relationships among these actors, since many sectors of society have hidden connections with the violence as either victims or perpetrators, and frequently both (Gómez 2007, 3). Colombia is not a dictatorship, yet it is not a healthy democracy, either – it is a restricted democracy in which both allies and detractors of efforts to expose the truth behind the ongoing conflict are in power (Gómez 2007, 3). The dynamics of Colombia’s ongoing and overlapping conflicts shape the dynamics of its truth-telling processes. The oscillation between peacemaking and war-making, the coexistence of stability and conflict, and the diversity of actors and interests make it difficult to determine what “post-conflict” means in Colombia, complicating the search for truth in a transitional justice context (Gómez 2007, 3). It is commonplace, and accurate, to describe transitional justice efforts in the country as attempts to implement transitional justice without a preceding transition from conflict. The real challenge, therefore, is how best to use transitional justice mechanisms during an ongoing conflict. Can transitional justice create a transition? Can its mechanisms help to end conflict? Internal Displacement as a Constant Feature of Armed Conflict and Economic Development Processes The armed conflict has had profound negative effects on Colombian citizens. Many civilians are affected by, or involved in, the military operations of the conflict itself, often involuntarily. They are frequently obliged, for example, to aid and bribe guerrillas and paramilitaries. Furthermore, the guerrillas and paramilitaries forcibly recruit young people and accuse civilians of collaboration with the Colombian armed forces while, conversely, state authorities charge civilians with political crimes and guerrilla involvement. Most of the time, armed groups do not clash directly with other armed groups, but rather attack or threaten civilians, often with a view to seizing their lands and other assets. Those who resist are killed, so for a majority of the population the only recourse is to flee their homes.8 From the beginning of the violence in the 1950s, an urbanization process has resulted from a constant stream of forced migrants moving

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away from the countryside, fueled by the armed conflict (Vidal 2006). For mainstream social scientists, however, this phenomenon does not represent a major human rights concern that merits examination through truth-telling processes. Rather, they see it as a “natural” consequence of development, characterized by urbanization and the transformation of an agrarian economy into a manufacturing-based economy. Demographers and economists in the field of migration have studied the massive population movement from the countryside to the cities (Bejarano and Briceño 1999, 164), but forced migration scholars have generally not addressed it in depth. Economic development processes in Colombia have led to internal and external migration; these movements can often be most accurately characterized as forced. Since the early days of independence in the nineteenth century, the search for raw materials for export has led to conflicts over the control of territories and populations for use in the growing and extraction of rubber, coffee, sugar cane, tobacco, bananas, coca, and so on. Besides these traditional crops, presently, the growth of palm oil plantations and a public development plan based on a massive expansion of mining operations also fuel land competition. Lands have been appropriated through a combination of legal strategies, as well as quite often through the exercise of violence by private organizations commanded by legal and illegal entrepreneurs. The violent appropriation of territories leads to the forced displacement of peasants and traditional residents, such as indigenous people and black communities (see Posada 2009). Recent Displacement Rates Non-governmental organizations (ngos) and the Catholic church introduced the concept of internal displacement in the Colombian context in 1994, and the first national survey estimated that one million people were displaced between 1985 and 1995 (Vidal 2008). In response, four systems to monitor internal displacement were created: three by civil society organizations and one by the government.9 Despite discrepancies in their calculations of the total number of idps in the country, which are the result of disparities based on the date each system started to collect information and the way they treat idps who are not officially registered, the four existing systems have counted similar numbers of displaced persons over the last fifteen years. With a few exceptions, there has been a sustained displacement of around 300,000 people per year. This is equivalent to 800 persons dis-

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Annual figures

Cumulative figures

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Population in ongoing displacement situation (cumulative)

Displaced population (annual)

Figure 7.1: Historical statistics of internal displacement in Colombia 1985–2012 (Rojas and Hurtado 2014)

placed a day for fifteen years. After some twenty years of monitoring, the Colombian government officially recognizes a total of around three million idps. Both official and independent monitoring systems calculate five million to six million idps in a country with 46.3 million inhabitants, the equivalent of 8 per cent of the population. Figure 7.1 shows the evolution of forced displacement from 1985 to 2012. The right column shows the annual number of displaced persons. The left column shows the number of displaced people accumulated over the course of twenty-seven years, expressed in millions. The darker line indicates annual displacement figures and the lighter line indicates the cumulative figure. In addition, internal displacement has been accompanied by refugee flows and increased migration to other countries, mainly neighbouring Ecuador and Venezuela.10 According to the state system for registering idps, in 2010, 32 per cent of idps were displaced by guerrillas, 15 per cent by paramilitary groups, 15 per cent by other groups, 0.5 per cent by the national army, and 0.1 per cent by criminal gangs (for the rest, it was not possible to establish the actor responsible) (acción social 2010). In contrast to this official data, codhes’s information system on internal displacement and human

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rights has established a strong connection between economic development, state military activity, and displacement. A codhes report shows that 32.7 per cent of idps were expelled from the consolidation zones where the Colombian state has concentrated its military presence against the guerrillas. In these regions, paramilitaries supported by private companies stole territory (so did the guerrillas, though they stole less), forcing residents off the land. Additionally, 14 per cent of the municipalities in question have palm oil crops and 25 per cent have mining projects, economic projects that fuel land competition, which leads to displacement (codhes 2011). Nevertheless, internal displacement has affected every region of the country. The displaced are mainly women and children; the displacement crisis has had a particularly pronounced impact on ethnic minority groups of Afro-Colombians and indigenous communities. The Colombian State’s Response to Displacement In 1997, the Congress of Colombia enacted Law 387, which created a state system to prevent forced displacement and protect idps (Colombia 1997). The system aims to acknowledge the state’s responsibility to the displaced and to recognize idps’ constitutional rights. This early Colombian legislation on idps was strongly influenced by the human rights discourse of the Inter-American System and the consultation process that led to the Guiding Principles on Internal Displacement by Francis Deng, the then-representative of the un secretary-general on internal displacement. Since 1997, the government has developed, adjusted, and expanded the system. However, it has preserved the original conception of several institutions working together to prevent displacement and to provide attention and stabilization to idps. The system involves the whole of ministries and several specialized institutions, and generates legal duties for the territorial authorities as governors and mayors. By 2004, the Constitutional Court, given the stagnation in the achievement of these rights, took an important step forward. Ruling T-025 of 2004 declared that Colombia’s internal displacement situation represented an “unconstitutional state of affairs” (Colombian Constitutional Court 2004), a doctrinal mechanism with some precedent in international jurisprudence. This ruling allowed the court to produce orders for the government directed toward the protection of the rights of the entire displaced population, not only those who were part of the original cases invoked by the plaintiff. At the same time, the court introduced a permanent monitoring system, which would hold public hearings with idp organizations and

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broader civil society organizations, produce new and specific orders for the government on an ongoing basis, and convene commissions of scholars and experts, among other activities, and which would allow it to remain involved in the case beyond the decision’s execution.11 The Constitutional Court has stated that the unconstitutional state of affairs – and its monitoring of them – will endure until the government can guarantee idps’ constitutional rights. In practical terms, this means that the monitoring will be in place indefinitely (Colombian Constitutional Court 2010). The official government policy toward idps encompasses a complex system supported by significant public resources. However, evaluation of the system has demonstrated that it is far from achieving the goal that the court has set for it.12 In June 2011, the Colombian government published Law 1448, which established a package of judicial, administrative, social, and economic measures directed toward persons who suffered damages caused by violations of international humanitarian law or international human rights law that took place after 1985 and were a consequence of the internal conflict (Colombia 2011). idps were included in the law as a class of victims. Given that they are already accounted for in a separate system of protection and attention, however, it is not clear whether grouping them with other victims will help or hinder the protection of their rights.13 T RU TH - T E L L I NG A N D I N TE R N A L D I S P L AC E M E N T

There has not yet been a truth commission in Colombia. However, multiple truth-telling initiatives have been associated with various peace processes during different phases of the conflict. Many of these initiatives have addressed internal displacement and issues related to the persistence of the country’s crisis or have involved idps directly. Demobilization of Paramilitary Groups and Transitional Justice Measures In 1998, the Colombian government began a peace process with the farc guerrillas, but this effort eventually failed in 2002. One of the outcomes of the failed negotiations was a widespread negative perception of, and distrust toward, the guerrillas on the part of civil society. In this context, a conservative coalition government promised the recovery of territorial control, a military attempt to defeat the guerrillas, and the adoption of a national security plan. After inviting combatants to reintegrate into civil-

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ian life, the government signed a peace accord with the extreme rightwing United Colombian Self-Defense Army. Between 2003 and 2006, 30,431 paramilitary combatants were demobilized (Diaz 2008). In 2005, the Colombian Congress approved Law 975, also known as the Justice and Peace Law (Colombia 2005), creating a special criminal procedure to prosecute demobilized paramilitaries charged with gross human rights violations (Diaz 2008). The Colombian Constitutional Court introduced particular requirements to Law 975: the conditions for obtaining the benefits of the demobilization agreement included a full confession of crimes committed in the armed conflict. There was a stated duty to tell the truth about past crimes, including forced displacements (Colombian Constitutional Court 2006). However, the indicted paramilitary commanders only partially observed their duty to tell the truth. Furthermore, in 2009, in a controversial decision by the Colombian president, several paramilitary commanders were extradited to the United States on drug charges. The extraditions completely altered the dynamic of the truth-telling process. At present, most paramilitary leaders have largely stopped participating in the domestic criminal and truth-telling process, as the plea bargains that they reached with US prosecutors have restricted their contributions. Many have objected to this measure because it subordinates the prosecution of and truth-telling about serious human rights violations in Colombia to the prosecution of drug trafficking abroad.14 Five years after the system began, with more than 3,000 paramilitary leaders indicted, the special jurisdiction of peace and justice created by the law had produced just two decisions based on the voluntary confessions of the indicted, and only one had finished the appeals process. Nevertheless, in this difficult context, the criminal process has uncovered an unexpected amount of useful information about the worst violations of human rights, massacres, and the locations of thousands of individual and mass graves. Paramilitary leaders’ confessions helped the judiciary and civil society understand that internal displacement was not only an unintended result of the military clash between the army and non-state actors, but also often part of systematic forced population movement that indicated the plundering of millions of peasants’ land and property, particularly among indigenous and Afro-Colombian groups. Commercial groups illegally appropriated their properties and allocated them to “development” projects involving industrial agriculture, raising cattle, and mining.

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The National Commission for Reparation and Reconciliation and the Historical Memory Group The Justice and Peace Law of 2005 also ordered the creation of the National Commission for Reparation and Reconciliation. The commission worked under the vice president’s direction, and included presidentdesignated civil society representatives, including a representative of idp organizations. Its main functions were to propose and then to create and develop a restitution program; to guarantee victims’ participation in criminal procedures; and to produce a report on the abuses of the conflict, a function related to truth-telling (Colombia 2005). In compliance with its legal mandate, the commission created a Historical Memory Group in 2006, which prepared reports on the origin and development of armed groups. The commission treated memory as a political issue involving the recognition of both armed actors and victims, and stated that the Historical Memory Group went beyond the tradition of amnesty, pardons, and secrecy that characterized past Colombian peacebuilding efforts (Sánchez 2007, 6). The Historical Memory Group was committed to society’s right to the truth, but it stated that it was not a truth commission as such because it was conducting research in the midst of a conflict (Sánchez 2007). The assumption was that an authentic truth commission operates in a post-conflict setting. The group, on the other hand, began by investigating massacres and other significant events that had occurred earlier in the conflict and later moved to more recent human rights and humanitarian law violations. The selected cases were all connected in some way with the causes of forced migration (Sánchez 2007, 6), but only the group’s final report, which it began to develop in June 2011, focuses directly on internal displacement. The Historical Memory Group did, however, consider itself a step toward the establishment of a comprehensive national truth commission in the future, warning that memory and the right to the truth cannot wait until an uncertain peace agenda and the end of the conflict are reached (Rodríguez 2009). In three years of work, it produced ten reports on representative cases of the worst human rights violations in Colombia in the past twenty years. Most of the cases that it examined had already been investigated and closed by the judiciary. However, it has increasingly worked on cases that were still open in the courts or that were connected with ongoing processes of violence. The group thus made relevant contributions to the truth-telling process because of the kind of social analysis that each report develops. The

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descriptions of the facts and the analysis of the violence have contributed to the understanding of history. The Monitoring Commission for the Observance of the Constitutional Court’s Decision T-025 The Constitutional Court, in observance of Decision T-025 of 2004, embraced the creation of a Civil Society Commission to support and monitor public policies on displacement.15 With the support of the Civil Society Commission, the Office of the un High Commissioner for Refugees (unhcr), and various ngos, the court also created a set of indicators of the satisfaction of the rights to truth, justice, reparation, and guarantees of nonrepetition of displacement for idps. These indicators are the primary tools for evaluating the government’s response to idps and observance of its duties,16 though the government has contested their introduction into the judicial monitoring process. After a tense public debate with the extensive participation of ngos and unhcr, the court ordered the compulsory application of thirty-five of the more than 200 indicators, which encompassed the satisfaction of idps’ main rights (Colombian Constitutional Court 2008). At the end of 2010, the government reported that it had partially applied the indicators and admitted that its policies had fared poorly; the court argued, however, that the election of new a government meant the report should be disregarded. Under the new president, the relationship between the judiciary and the executive entered a time of distention, framed by a completely new legislation and institutional arrangement on victims, internal displacement, and land restitution introduced by Law 1448 in 2011. Meanwhile, the Constitutional Court has lowered the intensity of its monitoring of the executive, conceding that some time is needed to implement the new public policies on victims. The construction of a reliable system to monitor public policies, based on indicators supported by a broad consensus among state institutions and civil society organizations, creates new opportunities to protect victims’ rights. These techniques for measuring rights fulfillment allow social actors to replace the state’s general and unclear language, which used to control the sources of information, with more accurate data. Despite the conflict between the judiciary and the government, the monitoring system has led to important outcomes for idps’ enjoyment of their rights. In a separate strategy, as a result of Law 387 of 1997, in 2003 the government, with international support, created the Project for Protection

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and Land Restitution of Internally Displaced People to protect displaced persons’ land and assets. As part of the project, there was the implementation of a national database of lost properties, which could operate in the future as a basis for the program of property restitution for displaced persons that is called for in the new law (no. 1448) on the protection of victims and restitution of land (acción social 2010). Displaced Populations’ Role in the Truth-Telling Process Colombian civil society is highly organized. As a result, many memorialization and truth-telling initiatives have emerged from diverse communities and ngos. These efforts have aimed to commemorate, rather than to elaborate a structured account of the facts (Briceño-Donn et al. 2009, 20). However, some ngos – such as the Centro de Investigación y Educación Popular operated by the Jesuits, the Conference of Catholic Bishops, and the Consultancy in Human Rights and Displacement – have developed extensive databases about human rights violations, including internal displacement. These databases will support future truth-telling exercises. The organizations of displaced persons in Colombia are numerous and complex, and since 2005 many have consolidated and regrouped. Colombian idp groups have both a local and national presence; they are respected, have strong leaders, and operate very effectively. Currently, hundreds of local organizations and national federations participate in governmental and mixed institutional committees, and idp groups play an active role in monitoring public policy through the legal process led by the Constitutional Court (Vidal 2006). At the same time, idp organizations in Colombia have been threatened and persecuted by all parties to the conflict. Their leaders have been tortured and killed, and they are systematically targeted, particularly when their activities are connected to processes of restitution of lost property, especially land. Security is idps’ main concern and the primary obstacle to durable solutions, truth, justice, and reparation in Colombia (Briceño-Donn et al. 2009, 18). The Colombian government has enacted measures to give victims land restitution and administrative compensation. These initiatives have spurred the mobilization of organizations of victims of displacement and other violations in an attempt to immediately allocate and access the resulting new resources. However, armed groups have resisted cooperation between idps and the government around the restitution of land. The country’s current president, Juan Manuel Santos, has referred to such armed groups as radical right-wing forces that are trying to deter the land

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restitution process through intimidation. Despite the government’s public position, however, between 2005 and 2011, fifty leaders of idp organizations were killed (rcn Radio 2011). Illegal armed actors are not alone in targeting idps. State authorities at the national and regional levels contribute to the situation of insecurity as well, as armed groups have co-opted some of them. Judicial investigations have discovered that during the past eight years, there have been connections between the paramilitary groups and national authorities on land reform, the presidential department of security, members of Congress, and members of the armed forces. The threats and attacks against idps have intimidated displaced activists. Many if not most idps do not have enough confidence in the authorities or in the peace process to participate in a national and public truth-telling process. Nor do they have confidence in the government’s ability to provide security for the victims’ lives and integrity. C H A L L EN G E S THE C OLOM B I A N C A S E R A I S E S

If truth-telling is to contribute even modestly to addressing Colombian idps’ concerns and eventually promoting peace and reconciliation, actors in the country must address a range of challenges. These include the effective timing of truth-telling processes including the creation of a national truth commission; the contested nature of “truth” in the Colombian context; and powerful Colombian actors’ manipulation of truth-telling and transitional justice discourse to promote the notion that the country is now in a post-conflict phase and in effect marginalize the ongoing displacement crisis. Timing of Truth-Telling Processes The first challenge that arises in the Colombian case is that of conducting truth-telling processes during an ongoing conflict. Many actors broadly – but certainly not universally – agree17 about the relevance of a comprehensive truth-telling process. This belief has only grown stronger in response to the diverse and complex outcomes of the criminal proceedings against paramilitary leaders, as these have revealed new information about the worst crimes and human rights violations, including internal displacement, despite victims’ restricted participation in the judicial procedures. In addition, for decades many groups have been gathering information about violence, human rights violations, and the effects of the

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conflict, including displacement, which will be available to future truthtelling processes. However, the government, victims’ organizations, ngos, and members of the international community agree that conditions are not presently adequate for starting a public and comprehensive truth-telling process. First, the ongoing conflict entails insuperable security risks for individuals and organizations. Second, many groups currently are not interested in or lack incentives for discussing past violations. Third, many groups are concerned that the parties to the conflict could wield a truth-telling process as a political tool to obtain advantages in the conflict and in peace negotiations. Given the shifting nature of the conflicts in Colombia, it is difficult to determine the correct timing for a truth commission. However, such a commission should not be seen as an isolated part of a transition to peace. Rather, the pursuit of truth should be connected to other processes, including conflict transformation and the unfolding of official transitional initiatives and civil-society-led truth-telling efforts. In terms of the transformation of the country’s key conflicts, it would be very difficult, if not impossible, to address and transform all of Colombia’s many overlapping conflicts through a single, definitive peace process. However, it is possible to hope for the transformation of some of these conflicts through a new process of engagement with paramilitaries or the demobilization of mafia gangs along with criminal prosecutions, if these were separated from negotiations with the farc. Recent experience with partially demilitarized paramilitary groups demonstrates the value of advancing truthtelling processes, despite the inevitable shortcomings of initiatives that involve only a small portion of actors. Each process generates different demands for truth from the victims of each actor. In advance of a full transition, it is useful to implement incremental truth-telling measures rather than wait for all fighting to stop. Truth-telling efforts in Colombia need to be appropriately situated in relation to official transitional initiatives. For example, numerous legal, judicial, and administrative measures accompanied the demobilization of paramilitary groups in the country. Among the official measures that have had truth-telling implications thus far are the confessions of paramilitary leaders that became part of criminal proceedings. In addition, the new act on victims and land restitution includes idps among those who will have access to truth-telling programs (Colombia 2011). Any future major truthtelling initiative, such as a national truth commission, must be effectively positioned in relation to these policies and processes.18

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As mentioned previously, in Colombia, communities, ngos, churches, and victims’ organizations have launched a number of important investigative and truth-telling initiatives. Databases of human rights violations exist, and civil society organizations’ fact-collection exercises have provided information that can advance truth-telling processes. Any official truthtelling initiative should build on the expertise and work of these civil society-led initiatives. Overall, a holistic analysis of both the relevant social and political dynamics and also the anticipated effects on conflict transformation should inform any decision regarding the establishment of a formal truth commission in Colombia. Social and Political Truth Contestation As in any conflict or context of authoritarian rule, political categories and concepts serve as signifiers used by a wide array of actors. Peace, respect for human rights, justice, and truth are often among the goals announced by states and other groups engaged in the political debate in societies struggling to emerge from conflict or authoritarianism. Of course, the meaning and significance of these concepts vary, sometimes dramatically, between actors and individuals. One of a truth commission’s main goals is to attempt to fix, for a while, the meaning of these concepts, allowing common ground on which to transform political conflicts (Laclau and Muffe 2001). In 2010, two separate, major demonstrations against the armed conflict took place in principal Colombian cities. The first was organized by activists using the Internet and was supported by the government. It attracted massive numbers of middle-class, urban residents in a public statement against the farc and widespread kidnappings. A few days later, ngos, unions, victims’ organizations, and traditional social movements led a second demonstration of similar size to protest in part against the farc, but primarily against paramilitary and state agents that had carried out massacres and caused internal displacement. The political situation in Colombia changed when a new government was elected in August 2011, one that has advanced the construction of a public consensus around the institutions charged with the protection of victims’ – including idps’ – rights and land restitution. The present context seems more favourable to national and comprehensive exercises of truth-telling in the near future. However, the two demonstrations exhibit the profound differences in experiences and conceptions of the conflict in Colombia, which make the construction of a consensus around truth-

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telling a challenge for society. The demonstrations revealed the interest of the urban and middle-class sectors in truth-telling about guerrillas and kidnapping, and while idps too want to know about guerrilla activities, they also demand the truth about land evictions and about paramilitary groups’ conduct and connections with the army and private companies. These issues are not often priorities for the middle class in Colombia, and ideas about the “truth” of the behaviour of these actors vary greatly. While the conflict continues, truth-telling processes other than a national commission can address the demands of particular groups of victims, such as idps. As discussed above, this partial approach is not new in the Colombian context; the continued, gradual unfolding of truth-telling initiatives cannot be expected to fully resolve contestations over the truth of the origins and experiences of violence in the country. However, at their best, these initiatives may generate increased awareness and understanding of different actors’ experiences and concerns, which a national truth commission may eventually examine in detail. Rhetorical Use of Transitional Justice and Truth-Telling I use the phrase “rhetorical use of transitional justice and truth-telling” to refer to the widespread inclusion of transitional justice and truth-telling in Colombian public discourse without the capacity either to implement related mechanisms or to introduce real changes that would prevent additional internal displacement or create secure conditions that might enable durable solutions for idps. The rhetorical use of these terms is often not questioned, but needs to be critically engaged as the deployment of these concepts benefits the state: in particular, these concepts create an illusion of achievement despite failed peace processes. In fact, the Colombian state uses transitional justice rhetoric to produce an image, mainly aimed at the international community of donors and human rights organizations, that the country enjoys stability, an end to the war, and a post-conflict situation. For idps in particular, the rhetorical use of transitional justice and truth-telling has caused disappointment because state agents have used it to deny or minimize the existence of internal displacement, mainly in international forums where they have tried to present Colombia as being in a post-conflict situation following the guerrillas’ military defeat. State actors’ rhetorical use of truth-telling and invention of a transitional, postconflict situation can generate serious risks of social division and distrust

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of truth-telling mechanisms, thereby hindering the future possibility of establishing an effective truth commission. C ON C LU S I ON

Truth-telling processes have been described by experts as transitional or post-conflict strategies for dealing with rights violations that occurred during past conflicts or under authoritarian governments. In this chapter, I have considered the role of truth-telling initiatives related to forced migration in the context of Colombia’s ongoing conflict, which presents many obstacles for such processes. While there has not yet been a national, comprehensive truth commission in the country, many public and private institutions have been involved in truth-telling initiatives. Many actors broadly agree that truth-telling processes are relevant and that postponing an official truth commission until a more peaceful time has merit. The timing of a future truth commission, I argue, should in part depend on the progress made through other transitional justice processes, the achievements of non-official truth-telling initiatives, and the transformation of different conflicts in society in the context of multiple, overlapping peace processes. Some amount of pre-peace truth-telling is needed in order to make all this possible. idps have created many organizations that work in connection with a wide range of human rights defenders and social movements. They have articulated multiple demands for the protection of their rights, and the Constitutional Court of Colombia has embraced them. The court has identified and developed idps’ rights to truth, justice, and reparation, and has also created indicators for monitoring the success of government activities to ensure these rights. While these are important steps, threats against and the murder of idp leaders and others involved in publically defending idps’ rights hinder their participation in truth-telling initiatives. Even idp leaders who work with government institutions have received threats from armed groups. The poor security conditions and idps’ lack of confidence in the government prevent them from participating openly in truth-telling processes at the present time. In an extremely polarized society, the truth about displacement is contested. Important sectors of society tend to deny the existence – or the scope and severity – of the worst human rights violations, including internal displacement. Often the government and public servants attempt to justify displacement as a necessary consequence of waging war against the

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guerrillas. This contestation illustrates the necessity of an official truth commission that deals with the experience of displacement. But it also demonstrates the difficulties that such an initiative would face at present. In spite of the obstacles to the establishment of a formal national truth commission, though, ngos and idp organizations have launched many unofficial truth-telling initiatives, which have included the creation of databases of human rights violations, internal displacement among them, and community-based exercises for protecting memories. These initiatives help to fulfil idps’ rights, but they do not replace the need for the state to shoulder its responsibility to guarantee idps’ rights to truth, justice, reparation, and non-repetition of displacement. Between 2011 and 2013, peace construction in Colombian changed deeply. In 2011, as addressed above, the government enacted the Victims and Land Restitution Act (Congreso de Colombia 2011). On 20 May 2012, the Colombian congress introduced a constitutional reform, known as the Peace Legal Framework, which established legal norms intended to make a peace process possible through combatants’ demobilization. On 26 August 2012, the government and the farc signed an agreement for conducting peace negotiations under a fixed agenda. At the time of writing, the peace talks have been progressing, and both parties have been optimistic about the process.19 In this context, the farc and the government have supported the idea of integrating a truth commission into the peace process. The questions discussed above concerning idps’ participation in peace initiatives such as truth-telling remain highly relevant. While some quarters seem more willing to enable idps to engage in these processes, certain strong political actors – particularly those connected with the army – still oppose their participation.

notes 1

2

This chapter builds on a case study entitled “Truth-Telling and Internal Displacement in Colombia” prepared as part of a collaborative examination of displacement and transitional justice undertaken by the ictj and the Brookings-lse Project on Internal Displacement (see Vidal 2012). From 1958 to 2012, there were twelve national commissions of study and research about different forms of violence in Colombia. This shows the centrality of comprehension of the protracted conflict for Colombian institutions, and reflects expectations about understanding this complex phenomenon (Jaramillo 2014).

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The literature on truth commissions stresses their relationship with the state. Truth commissions have been described as “officially authorized or empowered by the state” (Hayner 2010); at the same time, they need some relative independence from it (Freeman 2006). 4 For a general discussion of the links between displacement and truth-telling, see Bradley (2012b). For a focused discussion of the role of truth-telling processes in a different displacement context, see Vieira (this volume). 5 I understand civil society in its modern sense, as “a realm of social life – market exchanges, charitable groups, clubs and voluntary associations, independent churches and publishing houses – institutionally separated from territorial state institutions” (Keane 2010). 6 In 1956, the Colombian parties signed the Pact of Benidorm, and in 1957, they signed the Pact of March, the Pact of Sitges, and the Pact of San Carlos. In December 1957, the agreements were ratified through a plebiscite that passed with strong popular support (Pizarro 2004). 7 Previous peace negotiations have occasionally included representatives of drug cartels, but such efforts were typically made in secret. Such was the case with the government’s negotiations with Pablo Escobar in 1990. 8 There is extensive literature and reporting on internal displacement in Colombia, including through the un system (particularly the Colombian offices of the High Commissioner for Refugees and the High Commissioner for Human Rights) and the International Committee of the Red Cross. Important reports from local civil society organizations include those from the Consultoría para los Derechos Humanos y el Desplazamiento (codhes) and the Conferencia Episcopal de Colombia (the Catholic Church in Colombia). Colombian government reports are available through the Agencia Presidencial para la Cooperación Internacional y la Acción Social until 2010. From 2010 onward, State reporting on internal displacement has been managed through the Unidad para la Atención y Reparación Integral de las Víctimas. 9 In Colombia there are four institutions that produce data on internal displacement, using different methodologies and goals. From 1995 through 2011, the Colombian state has produced statistics based on the population already registered in the public systems. The other three systems are operated by the International Committee of the Red Cross, the Conference of Catholic Bishops, and codhes. 10 By 2009, unhcr (2010a) counted 389,800 refugees and persons in need of protection outside the country. 11 In the process of implementing and monitoring T-025, the Constitutional Court has enacted more than eighty-four complementary decisions and

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organized more than fifteen public hearings for state agencies and civil society organizations (Rodríguez-Garavito and Rodríguez Franco 2009, 10). The Constitutional Court and the civil society Monitoring Commission, which the court gave a specific mandate, carried out a system evaluation. The monitoring process has been active from 2005 to the present. In addition, the new act does not recognize the state’s responsibility for the damages the victims suffered. When paramilitary leaders were extradited in 2008, the Office in Colombia of the un High Commissioner for Human Rights, the Inter-American Commission on Human Rights, and Human Rights Watch made public declarations about the negative consequences of that measure on the victims’ rights to truth and justice (afp, dpa, and Reuters 2008). Years later, different organizations have expressed concern many times about the restrictions to the peace and justice processes that the extradition of the paramilitary leaders entailed (ictj 2011). The Civil Society Commission was created in 2005 through an initiative by civil society organizations. Beginning in 2007, the Colombian Constitutional Court has asked the commission to monitor the government’s achievements with regard to idps’ rights (Colombian Constitutional Court 2007). For example, the indicator of the “right to measures of enjoyment of truth, justice, and reparation” includes: “All victims of displacement have received: measures of satisfaction such as prosecution and judgment of perpetrators; the wide dissemination of the truth about the reality of displacement and its causes; measures for finding and disseminating an official truth; the search for disappeared people and the disinterment of remains of the deceased; public apologies and the construction of monuments and memorials for the victims.” The complementary indicators include: “Number of displaced households that have witnessed the perpetrators of displacement being prosecuted and condemned/total number of displaced households” and “number of displaced households that have attained an official truth about the conditions of time, manner, and place that surrounded the forced displacement/total number of displaced households.” An indicator of the effective enjoyment of the “right to guarantee of non-repetition” is: “All victims of internal displacement have been beneficiaries of measures that guarantee the non-repetition of crimes.” Complementary indicators include: “Number of institutional and legal measures that point particularly to the guarantee of non-repetition of displacement and land eviction (explaining the kind of measures)” and “number of idps who have suffered more than one displacement/total number of displaced persons” (Colombian Constitutional Court 2008, my translation).

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17 From 2009 to the present there have been many discussions about a truth commission in Colombia from different sectors and communities (Vieira 2012), such as the Supreme Court of Justice (Ibáñez 2009), victim-led social movements (movice 2012), and, recently, the farc in the context of the peace talks with the government (ictj 2013; rcn La Radio 2013). 18 On the need for internal and external coherence between different transitional justice measures and between transitional justice and the broader challenges societies emerging from conflict face, see de Greiff (2006). 19 For a complete time line of the peace talks, see Adam Isaacson’s (2013) Latin America Blog.

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8 Return and Reintegration in Divided Societies: The Case of Bosnia and Herzegovina HU MA HAIDER A very important element of pre-war social life throughout the former Yugoslavia had been the custom of taking time to drink coffee with a friend or colleague ... The disappearance of this custom between national groups in post-war [Vukovar and] Mostar is another indicator of disturbed social connections. (Dinka Corkalo et al. 2004) My old neighbours are Croats and when we first returned to visit, they approached us and we shook hands and greeted each other. They asked how we were and so on. When we come these days, they only say “Good afternoon.” It isn’t like it used to be before the war. There is no “Come on, let’s have a coffee.” There is nothing like that any more. And when there is nothing like that, I do not feel like going there. (A Bosniak who fled Mostar during the war describes visits to his former home, quoted in Dinka Corkalo et al. 2004) When all sides are pulled into a war ... they no longer talk, and develop ice walls. They need someone to say, “Hey, coffee?” (Bosnian representative, Danish Refugee Council 2006)

The displacement of an estimated 2.2 million persons during the 1992–95 war in Bosnia and Herzegovina (BiH) was not a byproduct of war, but its very purpose.1 It was part of the policy of “ethnic cleansing,” or “the elimination by the dominant ethnic group of a given territory of members of other ethnic groups within that territory” (un Department of Public Information 1995, 65–6). This was achieved in BiH through a variety of

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methods, including harassment, beatings, torture, rape, summary executions, forced relocation, confiscation of property, and the destruction of homes, places of worship, and cultural institutions. Ultimately, 90 per cent of the pre-war Bosnian-Serb population left the area now called BosniakCroat Federation (the Federation) and over 95 per cent of the pre-war Bosnian-Croat and Bosniak (Bosnian-Muslim) inhabitants left what is now Republika Srpksa (rs) (Rosand 1998, 1,100).2 The General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement), signed in December 1995, ended the fighting between Serbs, Croats, and Bosniaks and officially divided the country into the two entities – the Federation (51 per cent of the territory) and rs (49 per cent).3 At the same time, it guaranteed to all refugees and displaced persons the right to return. This right extended not only to return to BiH, but to one’s specific pre-war home. Annex 7 of the agreement stipulates: Article I (1) All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them ... Article II (1) The Parties undertake to create in their territories the political, economic, and social conditions conducive to the voluntary return and harmonious reintegration of refugees and displaced persons, without preference for any particular group. The Office of the un High Commissioner for Refugees (unhcr) defines reintegration, which is essential for sustainable return, as the “universal enjoyment of full political, civil, economic, social and cultural rights” (unhcr Geneva 2004, 1, 5). unhcr was responsible for developing and implementing the repatriation plan for BiH, in consultation with asylum countries, the parties to the agreement (the Republic of BiH, the Federation, and rs), other international agencies, and local organizations. This was a tremendous responsibility, as many saw the fulfillment of the right to return and the reversal of ethnic cleansing as integral to peace (Rosand 1998). Return was tremendously challenging in BiH. Not only were 1.2 million refugees scattered abroad, but approximately one million were also intern-

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ally displaced persons (idps). Many abandoned houses were occupied by internally displaced Bosnians, whose houses, in turn, were occupied by people displaced from other areas. Post-conflict property repossession was therefore an extremely complex and politically charged process. Since the end of the war in BiH, more than one million former refugees and idps have reportedly returned to their pre-war homes. These returns include a significant 470,835 minority returns – returns by refugees and idps to their pre-war homes in areas in which they are now part of a minority.4 A primary enabler of return was the property repossession process, particularly the Property Law Implementation Plan (plip), which achieved a 93.3 per cent implementation rate by the end of July 2005 (unhcr 2006). Bosnia’s experience demonstrates, however, that property repossession and reconstruction are not sufficient to guarantee sustainable return. unhcr and other involved bodies have paid insufficient attention to efforts that would allow returnees to properly reintegrate into their pre-war communities, economically and socially. The persistent segregation and distrust between different ethnic groups, rendered enemies during the war, hinders reintegration into a multi-ethnic community. Further, high unemployment exacerbates divisions and is particularly problematic for minorities who face the additional problem of discrimination. Having witnessed first-hand the difficulties in bringing people who had fought bitter wars against each other to live together again, Sadako Ogata, the un high commissioner for refugees from 1990–2000, pushed for a pilot program called Imagine Coexistence. It supported joint activities, designed to rebuild coexistence in ethnically divided communities and to create an opening for later reconciliation work (Ogata 2003). This initiative and others like it successfully renewed contact, built trust, and repaired social relationships in target communities. Many coexistence programs were also connected to an income-generating component, providing smart and innovative examples of how coexistence can be mainstreamed into economic projects and the return process. Despite the benefits of such initiatives, international and local communities have not given them the attention required to adopt a coherent, coordinated, and long-term approach in divided communities throughout the country. International agencies, including unhcr, have largely wound up their return efforts. Since the mid-2000s, unhcr has gradually shifted its focus in BiH from refugee and idp return to setting up an asylum system. However, the challenges of employment and

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divided communities remain and continue to undermine returnees’ reintegration. Return in the country must be seen as an ongoing long-term process that goes beyond property restitution and pays attention to the many aspects that make a particular location and a particular house a welcoming and viable home. The difficulties faced in BiH indicate issues faced in other contexts of violent conflict that target identity, where mass displacement has drastically changed demographic compositions and where the struggle for inclusive living places persists. More concerted efforts to promote coexistence, livelihoods, and community development are essential to encourage sustainable return and reconciliation in BiH and other divided societies. In this chapter, I take a retrospective look at the return operation in BiH, as well as its outcomes and continuing challenges. I draw on scholarly, policy, and program literature in addition to personal interviews conducted with Bosnian returnees and international and domestic actors involved in the return process and in coexistence initiatives. I begin with an overview of the difficult return process in BiH, and discuss the challenges of reintegration, in particular the lack of economic opportunities and destroyed community and social ties. I then explore initiatives in BiH that have aimed to alleviate such challenges by promoting incomegeneration, community development, coexistence, and reconciliation processes. The discussion culminates in an evaluation of unhcr’s Imagine Coexistence program. I follow with a brief look at how political constraints can undermine the effectiveness of such initiatives. To conclude, I emphasize the need to pay greater attention to coexistence in return efforts, to link civil society-based initiatives and the political level, and to construct more comprehensive, coordinated peacebuilding programming. This is necessary not just in the case of BiH, but in other situations of mass displacement and return in post-conflict divided societies throughout the world. T HE RE TU R N P ROC E S S I N B OS N I A A N D HE R Z E G OV I N A

In the aftermath of the war, local authorities, many of whom had overseen ethnic cleansing, were eager to consolidate their war-time gains and maintain ethnic political support by orchestrating displaced populations’ permanent resettlement. Despite property legislation to reinstate pre-war occupancy rights and increased human rights monitoring in return com-

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munities, many nationalist local authorities refused to enforce eviction notices, especially if it meant evicting occupants of their own ethnic group (Bradley 2006). Local authorities often mobilized whole communities of displaced persons to violently confront minority returnees. With wounds from the war still festering, individuals and groups felt safer among their own and were open to mobilization by authorities promulgating threats posed by the “other.” They rioted against minority returnees and destroyed their property. They also subjected minority returnees to discrimination. For example, in Derventa municipality, authorities gave land plots to the Serb population free of charge, in a non-transparent manner, without giving a single plot to non-Serbs (Government of Norway et al. 2004). Croat returnees to the area emphasized that funds to rebuild houses were also allocated in a discriminatory fashion.5 After persistent obstruction, in 1999 the international community decided to “depoliticize” the process by shifting the focus away “from a collective right to return to an individual right to property” (Philpott 2006, 45). The plip, with collaboration by the Office of the High Representative,6 unhcr, and the Organization for Security and Cooperation in Europe (osce), facilitated this shift. It set up a legal-administrative framework, requiring claims to be dealt with on a neutral first-come, first-served basis in a standardized, transparent, and professional manner. It encouraged movement away from ethno-political negotiations centred on allowing specific numbers of returns to specific areas, and toward repossession grounded in rule of law and civil rights (Prettitore 2004). The impact of this reorientation was tremendous. By December 2003, close to 93 per cent of 216,026 real property restitution claims had been processed. Although eliminating the explicit push for minority return, the plip, by breaking the impasse on property repossession, allowed for significant progress in recorded minority returns. Such returns throughout BiH increased from an annual total of 41,007 in 1999 to 102,111 in 2002.7 While recognizing that the plip was an important pre-condition for return, critics argue that property restitution alone does not guarantee sustainable return. Charles Philpott (2005), who was part of the osce mission to BiH from 1999 to 2002, stresses that the intense focus on property restitution distracted the international community from other problems. unhcr field staff worked on property law implementation instead of issues related to sustainable return. osce field staff often

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complained that the restitution focus prevented them from working on employment and discrimination in access to social services, which also represented formidable barriers to return and reintegration. Their hopes that the end of the restitution process would free them up to address such issues were frustrated, as both unhcr and the osce simply closed field offices in areas where full property law implementation was achieved (Philpott 2005). The critical provision in Annex 7, which stipulates that authorities must also create suitable conditions for returnees’ “harmonious reintegration,” has been de-emphasized. Reintegration is still elusive, and many of the recorded returns are unsustainable (Jansen 2010a; Amnesty International 2006). Furthermore, the rate of recorded returns has slowed considerably since 2003. As of mid-2013, there were still a reported 103,368 internally displaced persons across BiH in need of a solution (unhcr 2014a). Approximately 8,500 displaced persons continued to live in collective accommodation, considered among the most vulnerable populations in BiH (Toal and Dahlman 2011; unhcr 2012). In 2007–08, unhcr and the Bosnian Ministry of Human Rights and Return worked to develop a revised strategy for the implementation of Annex 7 in order to address the large number of registered idps and problems with sustainable return. For the first time it gave greater focus to integration policies alongside support for return. The strategy was entangled in politics and the last of the state-level bodies did not adopt it until June 2010. THE N OTI ON OF

“ HOM E ”:

T H E N EE D FOR E C ON OM I C A N D S OC I A L R E I N TE G R ATI ON

Over one million returns – among which 470,835 are minority returns, and a plip implementation rate of 93.3 per cent are remarkable statistics. However, pure statistics hide much of the reality of the restitution process. In some cases, high restitution rates actually corresponded to high rates of sale or exchange instead of return (Philpott 2005). A report by the European Commission against Racism and Intolerance (2005, 14) estimates that, in rs, only 20 to 30 per cent of those to whom property has been returned actually live there. In addition, members of the locally dominant ethnic group usually purchase the properties of minorities who chose not to return, effectively cementing ethnic cleansing by means of the post-war housing market (Toal and Dahlman 2011).

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Even where houses are not sold, exchanged, or rented, official return statistics do not tell the full story. The Housing Verification and Monitoring Unit, established in 1999, found that while about three-quarters of pre-war occupants return to their reconstructed houses, in one third of those cases the occupants include only a part of the family. Elderly family members return permanently, whereas younger people and school-age children remain in areas in which they are in the majority for employment and education (Adelman and Barkan 2011; icg 2002). Return is thus often in reality a matter of degree. Stef Jansen (2010a) finds that many Bosniak minority returnee concentrations have been to villages just across the Inter-entity Boundary Line. These returnees, in addition to others further into rs, use their property for shelter and sleep but cross the boundary line into the Federation for all other activities, including employment, education, health care, and shopping. This degree of return allows renewed attachment and investment in pre-war residences without having to fully experience the challenges of living as a minority. A related trend is “reverse returns.” Walter Kälin (2005), a former representative of the un secretary-general on the human rights of internally displaced persons, highlights that the number of persons who actually live in their pre-war homes is lower than return statistics suggest; many returnees have left again due to poor conditions. unhcr confirmed this more recently, stating that many minority returnees have not stayed in their place of return permanently, primarily due to a lack of economic opportunities there. In addition, people have situated themselves in communities dominated by their own ethnic group (unhcr 2007). These patterns of selling or exchanging property and incomplete or reverse returns result in many Bosnians feeling “suspended in time and space,” considered “one of the worst problems associated with displacement” (Jansen 2010a, 148). This feeling results from the reality that “home” as refugees and displaced persons remember it no longer exists. This is due not only to the profound changes wreaked by the war, but also, in the case of BiH, to insufficient attention and resources given to factors that would allow for reintegration and help to sustain a home. Actors involved in the return process have equated home with property (Jansen 2007). This has resulted in the neglect of the notion of home as not only a physical place of residence, but also a site of social and cultural relations and a place that provides well-being, opportunities, and hope for the current and next generations (Jansen 2006; Stefansson 2006). More specifically, the notion of home extends to the ability to earn a livelihood and give children a good education. It includes the existence of a support net-

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work, and in the case of BiH in particular, the ability to rely on neighbours and the custom of coffee visits to each other’s homes (Helms 2010; Stefansson 2010). A local return activist emphasized the importance of such visits and cultural hospitality values to relations in local neighbourhoods: “That’s our tradition to live in a neighbourhood [where] you have someone to go visit for coffee, that she comes to your house for coffee, that you help her out when she’s working in the garden and then afterwards you sit and have coffee ... That’s the kind of neighbourhood I want to live in, not just living side by side” (Helms 2010, 25). What many Bosnians returned to was far from their recollection of home. Old neighbours had disappeared. Hostilities, mistrust, and residual fear within reshaped communities were widespread. Residents stayed inside their houses and locked their doors. Employment and income-generating opportunities were sparse, poverty rampant, and discrimination against minority returnees prevalent. Return in post-conflict societies requires overcoming negative past experiences and re-encountering people with whom relationships were broken (Rodicio 2001). While reconciliation has been defined in various ways, it refers broadly to the process of overcoming hostility and mistrust between divided peoples (“social repair and reintegration”), developing a common understanding of the causes and nature of the conflict, and developing shared notions of responsibility (“facing the past”) (Ignatieff in Rodicio 2001, 131). In BiH today, it is still the lack of employment and income-generation opportunities and persistent division and segregation between groups that hinders reintegration, sustainable return, and movement toward reconciliation. Lack of Income and Employment BiH is a country that has had to transition not only from a conflict, but also from communism to a market economy. These are both tremendously difficult transitions. Compounded further by rampant corruption and minimal investment, the country’s economy is weak. The unemployment rate in BiH has hovered around 40 per cent for years, and was estimated at 44.61 per cent in January 2014 (Trading Economics 2014). Young people are particularly affected, with the total youth unemployment rate reported at 62.3 per cent in 2006 (O’Higgins 2009, 23). Rural areas are also particularly affected. In 2005, the unemployment rate reached 60 per cent in many rural areas (US Department of State in idmc 2006, 12). A United Nations Development Programme report on social exclusion stated that

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about 50 per cent of the population of both entities in BiH live below the poverty line or are at risk of falling below it at any time. It also stressed that minority populations throughout the country are usually poorer (undp 2007, 76). While the weak economy is a problem for the entire population, the lack of employment opportunities is especially dire for minority returnees due to persistent, widespread ethnic discrimination in public and private sector employment (US Department of State 2011; coe 2011; Amnesty International 2006). In areas of return throughout the country, the pattern of public sector employment has neither reflected current population demographics nor been consistent with legal mandated percentages based on the 1991 census (US Department of State 2011; coe 2011). Where figures are available, the composition of local administrations is often weighted heavily toward the majority group in the area, to the neglect of minority returnees (coe 2011). In the private sector, many smaller enterprises and entrepreneurial ventures that began during the war were owned by or linked to politically connected individuals, often members of the local majority ethnic group. Hiring practices have tended to be discriminatory, and tied to party and ethnic networks, resulting in lack of employment for minority returnees (Toal and Dahlman 2011; US Department of State 2011). The absence of jobs and presence of employment discrimination renews and exacerbates divisions. They are mutually reinforcing, and impede reintegration, reconciliation, and sustainable return. A staff member of the rule of law department in the Office of the High Representative believed, for example, that unemployed “rape victims will relive their suffering more prominently than [other rape victims] with jobs, who are contributing to their family and to society.”8 In general, persistent socio-economic need makes it more difficult to reconcile with the perpetrator and with members of the perpetrator’s ethnic group. Dire employment conditions can contribute to negative views of the other and greater comfort with one’s own ethnic group, even in the absence of war crimes and human rights violations. An osce advisor noted that if there is unemployment and lack of resources and people are preoccupied with financial survival, they will “tend to stay with their community and be more reluctant to open up and foster coexistence.”9 Others noted that when people have jobs and start working together, politicians are unable to prey on their discontent and nationalism becomes less of a focus. Reconciliation then becomes more possible.10 Case studies on

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return in Drvar and Foča reveal that economic insecurity in both towns has contributed to tensions between majority and minority communities. Economic grievances have come to be defined in ethnic terms (Donais 2005; Čukur et al. 2005). Not only does the lack of economic opportunities and employment discrimination make it difficult for returnees to reintegrate economically, but the exacerbation of ethnic tensions that stem from economic insecurity creates a hostile environment, which also makes it difficult for minority returnees to reintegrate socially. On a more practical level, preoccupation with immediate economic needs has resulted in little interest in or prioritization of addressing societal divisions. A Bosnian human rights advocate insisted, “It’s not that you just build houses and people will automatically reconcile; but it is that they cannot reconcile if they are hungry.”11 Anders Stefansson’s (2010, 68) informants from his study on the town of Banja Luka, the capital of rs, explained, “As long as their everyday lives were characterized by problems of poverty, unemployment, and lack of permanent housing, reconciliation remained too abstract and somehow unimportant an issue for them to start taking a serious interest in it.” A large number of informants surveyed as part of the evaluation of Sida’s Integrated-Area Programmes also argued that an improvement in the economic situation is a precondition for coexistence (Čukur et al. 2005). Further, a study conducted on interethnic friendships in BiH found that people who were better off economically and who were optimistic about the economic future of their region were more likely to have friends of different ethnicities and to want to develop further friendships across the divide (O’Loughlin 2010). Damaged Social and Community Relations While employment and income-generation are considered key enablers for reintegration, coexistence, and eventual reconciliation, they do not – on their own – automatically result in reconciliation. While it may be possible for ethnic divisions to become less prevalent with greater economic opportunities, additional interventions are needed that directly address social cohesion and reconciliation (Oxford Research International 2007). As the founder of a Czech non-governmental organization (ngo) operating in BiH stressed, “Economic prosperity of a country doesn’t guarantee smooth coexistence of various ethnic groups, cultures and religions.”12 This is especially true when violent war and ethnic cleansing have torn them apart.

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Prior to the war, Bosniaks, Serbs, and Croats shared neighbourhoods and friendships. Many also shared families, as intermarriages had been common.13 But the orchestrators of the war had other designs and ambitions. The war, through its objective and effect, divided these communities and groups. Divisions were fostered and manipulated through fear and dehumanization of the other. States of terror and collective fear were created through indiscriminate violence that penetrated all levels of society, pitting communities against communities, neighbours against neighbours, and friends against friends (Fletcher and Weinstein 2002; Pouligny et al. 2007; Stover and Weinstein 2004). Feelings of betrayal were and continue to be prevalent. For example, one aid worker spoke of the sense of betrayal that his Bosnian-Croat wife still feels over her closest Serb friends leaving during the war without giving her any notice.14 Feelings of betrayal are a serious impediment to the process of social renewal, especially when those departing knew of an impending assault on the town or village and said nothing (Corkalo et al. 2004). Feelings of betrayal, distrust, hostility, and fear can become part of the collective psyche and can be resistant to change. Failure to acknowledge and address the psychological and social effects of communal violence is a significant obstacle to the development of peaceful relations and reconciliation (Bar-Tal and Bennink 2004; Colletta and Cullen 2000; Halpern and Weinstein 2004a). Reconciliation is a long-term process that requires a restoration of trust and empathy (recognition of shared suffering), and the rehumanization of the other. Rehumanization, through personal contact and dialogue, helps to dispel fear – a key driver of ethnic division (Rogan 2000). In BiH, physical reconstruction has occurred much faster than social repair. Surveys conducted in towns in BiH demonstrate that members of any group continue to be highly suspicious of members of other groups (Biro et al. 2004).15 Such distrust has been demonstrated in some cases by social sanctions, whereby neighbours and former friends are no longer welcome for coffee visits as they were before the war (Helms 2010). Ethnic divisions have hindered minority returnees’ reintegration and rendered national minorities one of the most distinctly socially excluded groups. Self-exclusion and alienation from interethnic social networks also exists (undp 2007). In municipalities that have had significant minority return, segregation within communities prevents meaningful interaction across the ethnic divide that would help rehumanize the other (Herman 2005).

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Segregated education persists throughout the country, with particularly negative implications for sustainable return and reintegration. In some cases, two ethnic groups use the same school building but in a completely segregated manner, a phemonemon referred to as “two schools under one roof.” Students, teachers, and staff of different ethnicities attend the same school, but follow different shifts or use separate entrances and occupy separate sections of the same building (Global idp Database 2005). There are fifty-four such schools in the Federation, as reported by the osce, in which Bosniak and Croat students learn different curricula (Sivac-Bryant 2008). In other cases, schools are segregated with different buildings. Other schools are segregated by location, which has meant that children bus to attend a school in their majority area – a costly and inconventient measure – or that they stay in the area of displacement. The divided education system has been a strong deterrent to return. Schools are reported as not always providing a neutral learning environment (coe 2011). Parents fear their minority children will face discrimination and learn exclusively the curriculum, language, culture, and specific version of history of the majority group. In Prijedor, a Bosniak returnee remarked that Bosniak children still learn a Serb curriculum in school, despite agreement by officials to move toward a common core curriculum.16 There are also concerns that minority children would have to attend schools that teach negative stereotypes of their ethnic group (Torsti 2009). In addition to impeding return, divided schooling fosters mental barriers and prevents reconciliation among future generations (Torsti 2007, 90–1; idmc 2006). Despite efforts to delete offensive references in textbooks and the apportioning of blame for aggression and war crimes to the “other,” textbooks still display ethnic bias (coe 2011). Young people continue to learn different interpretations of the past, with glorification of their own group and demonization of the other. This, some worry, is “planting the seed for another war.”17 Another key problem with the segregated school system is that young people are not exposed to the other, compounding the similar lack of exposure outside of school. In the absence of positive experiences with people of other groups, it is difficult to overcome prejudices and stereotypes (Minow 2003). The director of the Catholic school in Centar Sarajevo stresses the importance of mixing children of all nationalities in classrooms, which is done at this school, and teaching about their neighbours’ religion: “Here in Bosnia, hate is borne from not knowing one another” (icg 1998b, 18).

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Prior to the war, neighbours in BiH interacted regularly with the other – sharing in each other’s cultural and religious holidays and festivities.18 In stark contrast, during the war, religious places of worship and monuments were deliberately destroyed as part of the ethnic cleansing campaign to eliminate all signs of a community’s existence (Ó Tuathail and Dahlman 2005). As such, rebuilding religious sites has been an important part of reconciliation. It has also contributed to return. Still, religious sites and property on all sides continue to be the targets of further destruction and violence (coe 2011). unhcr BiH (2005) reported a periodical increase in security incidents directed toward returnees in 2005, compared to 2004, many of which seemed to be connected to either national or religious holidays not welcomed by the other ethnicity. In order to minimize physical insecurity, a unhcr officer explained, “If you are a minority, you don’t make it too obvious.” You don’t make a big deal about religious holidays because it would be politicized beyond the meaning of it and considered a provocation.19 A more recent report by the US Department of State, Bureau of Democracy, Human Rights and Labor, documents continued ethnically motivated religious violence in various municipalities, directed at ethnic symbols, clerics, and religious objects and buildings. These included the destruction of tombstones in Muslim and Catholic graveyards, the attempted burning of a Serb Orthodox church near Srebrenica, and theft from a Catholic church. The illegal construction of religious buildings, for example a Serb Orthodox church built on private Bosniak-owned land, has also been divisive. The report states: “In these cases the buildings or monuments were built to send a political message to minority believers about the dominance of the majority group in that area, creating ethnic tensions and impeding the process of reconciliation” (US Department of State 2008). While a great deal of progress has been made in BiH since the Dayton Agreement, the country remains unstable. Tremendous efforts are still needed to ensure that return is sustainable and that Bosnians are able to fully reintegrate into their pre-war communities. Initiatives that advance both income generation and coexistence can contribute toward this goal. I NI T IAT I V E S TA RG E TI N G I N C OM E G E N E R ATI ON , CO MMUNI T Y D E V E LOP M E N T , C OE X I STE N C E , A N D R E C ON C I L I ATI ON

Economic opportunities and market activity can be instrumental in reestablishing contact among groups and providing avenues for coopera-

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tion. Just after the signing of the Dayton Agreement, the Arizona Market, a black market selling building and home improvement materials, emerged spontaneously on the inter-entity border between Doboj and Tuzla. It attracted traders and shoppers of all ethnic groups, in need of income and goods to improve their families’ lives. General Charles Boyd20 emphasizes that this market offers a clue to rebuilding a multi-ethnic society in BiH. Economic opportunity can force re-exposure to and interaction with the other, and so can rebuild different groups’ confidence in living together (Boyd 1998; see also Divjak 2006). The International Crisis Group remarked as well that this black market did more for reconciliation than did the politicians (icg 1997, 61). The international community recognized this peacebuilding opportunity, and viewed the market as a “neutral space” for interaction and as an engine of economic growth. In 2000, the Office of the High Representative legalized all trading activities and the Arizona Market was gradually privatized. Now managed by an Italian company, the market employs around 5,000 people and continues to attract Bosnians of all ethnic backgrounds. Still, the private sector in Bosnia remains underdeveloped. Its weak institutions and complicated regulations have deterred investors (Divjak 2006). It will be quite some time before the private sector can be relied upon to create income-generating opportunities and neutral spaces for interaction on its own. Moreover, an unregulated market can produce other problems in the context of transitioning, unstable economies. The Arizona Market became the site of trafficking of women and girls, which received limited attention with the push to emphasize the market’s positive aspects (Haynes 2010). Additionally, it is not desirable for complex reconciliation processes to be left to the private sector, which may not necessarily have the aim, inclination, or ability to properly foster them. As such, donor support in these areas is still needed. Given the power of economic opportunities to induce contact and collaboration among differing groups, it is possible and beneficial to design programs that foster not only economic reintegration but also coexistence. Economic Reintegration Initiatives Associations that respond to local needs and to interests that are not ethnically defined have the potential to attract the involvement of various groups and to better influence societal conditions (Pickering 2006, 2007). Improvements in the local economy can strengthen intergroup relations

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and diminish the importance of interethnic competition or rivalries (Afzali and Colleton 2003). They can also be strengthened as a by-product of associations that attract people of different backgrounds who work together on concrete tasks. For example, dairy cows and lacto freezers were provided to the Bosnian villages of Sevarlije and Pridjel Gornji for income generation, part of a project the United Methodist Committee on Relief implemented in 2001 to 2003. The committee facilitated the formation of an Association of Milk Producers, such that milk producers could act together and develop a joint market access strategy. The association, together with a dairy, established milk collection and storage stations. This increased the milk production and income in community, which encouraged further collaboration. The venture also contributed to improved contact and relations between ethnic groups, as the association was comprised of both Croat and Bosniak returnees and the dairy’s owner was Serb. Without the intervention, such collaboration may not have occurred.21 In addition, the United Methodist Committee on Relief sought to explicitly incorporate a coexistence dimension. It required that grants be repaid in the form of an in-kind donation of products or services to the community.22 Such innovative forms of financing can help to rebuild confidence among neighbours as they assist each other. Similar findings arise from the Srebrenica Milk Road Project, launched in 2005, in which farmers organized themselves into producer groups. The project’s main achievement was a marked increase in efficiency and profitability of milk production. Beyond this, new informal ties between Bosniak and Serb farmers were established, along with reciprocity and trust: “through their involvement in the project, many of the beneficiaries also began to share equipment, help each other out, share information and soon became friends” (undp 2009, 98). The un Development Programme, under its Support to Results-Based Approach – Partnership for Local Development project, operational from 2003, explicitly shifted its focus from purely returnees to whole communities. It has directed funds toward group assistance instead of individual assistance, assessing the exact needs of a community. This maximizes inputs on the ground. A un Development Programme officer stressed that the ideas have to come from the community: “They have to sit together, organize themselves and come up with something solid that we can support ... It helps with capacity building and building friendship by working together – being part of a group.”23 These programs have made a difference for returnees, many of whom have since become self-sufficient, and increasing-

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ly benefit communities as a whole (icg 2000). This in turn can reduce resistance to minority return and foster inter-ethnic cooperation. Unfortunately, international donors were reluctant, as a general strategy, to fund programs that support livelihoods (icg 2002, 2000). There have been only limited interventions that go beyond physical return and subsistence to address returnee communities’ socio-economic sustainability (Donais 2005). The Bosnian Ministry of Human Rights and Refugees exacerbated this problem by deciding, despite persistent unemployment problems, to continue to focus primarily on housing construction.24 Insufficient attention to economic issues has been detrimental not only to livelihoods but also to coexistence, especially given the strong potential of employment and income-generation initiatives to bring people together. A recent study on return and displacement in Banja Luka found that shared economic interests contributed to some degree of peaceful socializing between Bosniaks and Serbs, including joint agricultural activities: “Sometimes this practical interdependence resulted in coffee visits to each other’s homes ... Working together or drinking coffee together was not necessarily an expression of love or deep friendship, but it was at least a sign of the acknowledgment of local sharedness, the need for social exchange and, to a certain extent, mutual hospitality” (Stefansson 2010, 68–9). In her in-depth study on social capital in BiH, Paula Pickering (2006, 2007), a former human rights officer in Bosnia, found that workplace environments were effective in supporting positive interethnic relationships. These environments address practical needs and create neutral opportunities for repeated, mutually dependent interethnic interaction. A recognition of interdependency in turn is critical to the development of reconciliatory attitudes (Abu-Nimer 2001a). The study stresses that people without regular work missed not only an income but also an important source of social integration (Pickering 2006, 2007). Similarly, many social reintegration initiatives, focused primarily on fostering coexistence and reconciliation, have sought to incorporate an economic element – to address returnees’ needs and to encourage coexistence efforts by all parties. Social Reintegration Initiatives Coexistence is a significant aspect of the reconciliation process (Kriesberg 2001). As discussed, reconciliation involves both the process of rebuilding trust and relationships and also facing the past. Social reintegration ini-

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tiatives have focused more on the former, seeking to reestablish coexistence through re-engaging with and reframing the other, fostering crossethnic dialogue, and (re)building relationships. One of the ways re-exposure to the other and confidence-building were facilitated in the early years after the Dayton Agreement was through unhcr’s inter-entity bus line. Considered one of the organization’s most successful projects, many of the various bus routes the Danish Refugee Council initially implemented were commercialized given their immense popularity. Bus routes were established to most return areas and greatly improved freedom of movement between and within the two Dayton Agreement-created entities. Potential returnees were able to engage in “go and see” visits, gather more information on their pre-war home, and gain exposure to the other as a “normal” person. Buses were usually full to capacity and multi-ethnic riders often very emotional, which demonstrated that there were many in the country opposed to the nationalist agenda of ethnic segregation (icg 1997). unhcr bus lines operated until the end of 2002, after which they were fully commercialized. A Danish Refugee Council representative provided an example of a bus service on a smaller scale: he set up a minibus to travel three times a week from Mostar to rs to allow displaced Bosnians to repair their homes in their pre-war communities. He said: “All of sudden ... People of different ethnic groups were forced to sit in the same bus.” Gradually, contacts were created and “small networks of favours” formed as people began to ask one another to send messages or bring packages to family and friends who lived near various passengers. With more dialogue came empathy, as Bosnians started to realize that they were all suffering.25 Fostering such dialogue and interaction with the other is especially important for young people in Bosnia, who have grown up in a climate of intolerance and rigid stereotypes (Englbrecht 2001). To counter the educational system’s ongoing segregation, the United States Agency for International Development (usaid) agreed to engage in initiatives to rebuild destroyed schools only if classes are integrated. In Gubavica (Federation), where fierce fighting occurred during the war between Bosniaks and Croats, and from where Bosniaks and Serbs were expelled by the Croat army, usaid worked with the deputy mayor of Mostar’s southern municipality to reconstruct the elementary school. usaid agreed to the project only after receiving assurances that Bosniaks and Serbs would return and the school would be multi-ethnic. On 15 November 1999, the school opened and triggered significant cooperation among teachers and stu-

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dents, who represented each of the three ethnic groups, and among parents and the community as a whole. Special attention was given to ensure that the curriculum covers all sides. Ipak, a Bosnian ngo, has also supported young returnees’ integration. With funding from Swiss and German sponsors, it has developed a youth centre within eastern Bosnia, an area to which many young displaced persons returned. There were minimal social and economic outlets in the region. The centre benefits both Bosniak returnees and young Bosnian Serbs, and is designed to promote social integration and peaceful interethnic relations. It organizes leisure activities, education programs, vocational training, and income generation measures, including the formation of cooperatives and links to employment opportunities at local and regional firms (Fischer 2006b). An evaluation of the centre indicates that the various joint activities enabled youth across ethnic lines to identify shared interests and concerns, and to work toward achieving shared objectives. Such cooperation, in turn, facilitated long-term friendships (Fischer and Fischer 2004). unhcr also attempted to promote tolerance and reconciliatory attitudes among school children across the country, as part of its efforts to create a safe and secure environment for sustainable return. Supported by the Federation and rs education ministries, it launched a nation-wide contest – entitled Together – on 16 May 2000, which called for students to submit an essay, artwork, song, or poem that demonstrated their thoughts on how to learn, play, and live together with students of all ethnicities (unhcr 2000). This was part of an overall drive by unhcr post-Dayton Agreement, led by then-un High Commissioner Sadako Ogata, to integrate a coexistence dimension into its repatriation activities in order to make return durable and to prepare the grounds for later reconciliation work (unhcr 2003a). The biggest outcome of this was Imagine Coexistence, a pilot project implemented in BiH and Rwanda. Imagine Coexistence Given the acute problems unhcr faced with return in BiH, every effort was needed to fight hostilities that had developed and grown from the war effort. Imagine Coexistence, launched by unhcr in January 2001, supported joint activities for members of different ethnic groups with a view to overcoming deeply entrenched mistrust, promoting cooperation, and (re)building relationships (unhcr 2003a, 3). “Coexistence” was defined as

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more than “living peacefully side by side but involving some degree of communication, interaction, and even some degree of cooperation” (Chayes 2003, 152–3). In BiH, Drvar (Federation) and Prijedor/Kozarac (rs) were selected as target sites. unhcr selected Genesis Project, which had worked on coexistence projects in the past and has a multi-ethnic staff, as the implementing organization. Twenty-six projects were executed in the two towns and surrounding areas, by informal groups, local non-governmental organizations, and, in one project (the rehabilitation of the local market in Kozarac), local authorities. Eleven were income-generating projects, five psycho-social, three sports-related, four educational, and three cultural. The requirement for funding in each of them was a coexistence component, with interethnic participants and staff. Examples of businesses and activities established include fruit production and other agricultural initiatives, psycho-social assistance to children and a youth journalism club in Prijedor/Kozarac; and a coffee and cake shop, nail production workshop, Internet club, and basketball club in Drvar (unhcr 2003a). Prijedor and Drvar were both areas where the return process was particularly difficult. Prijedor had been a mixed Bosniak-Serb town but Bosniaks were driven out prior to and during the war. After the war, they returned in large numbers to live as minorities among Serbs. Drvar had been a mono-ethnic Serb town prior to the war, however became predominately Croat during the war. After the war, Serbs returned in large numbers to live among Croats. In both places, tension was high and the two ethnic groups lived segregated lives. In such contexts, the Imagine Coexistence projects were essential and successful in getting communities to start mixing and working together.26 They also helped to restore interpersonal relationships. In the aftermath of communal conflict, there are often those who wish to reach out to old friends from the “other” group, but experiences from the conflict and fear of rejection prevent them from doing so (Adjukovic and Corkalo 2004).27 Imagine Coexistence was based on the belief that joint activities can create psychologically safe space for old neighbours and friends to approach each other without fear of rejection and for such friendships to regain legitimacy (Ajdukovic and Corkalo 2004). The agricultural activities in Prijedor allowed for such interaction through mixed training sessions. A Bosniak woman relayed how, at a joint training session on strawberry production, she and her Serb neighbours were “reintroduced,” which “broke the ice” and enabled them to talk again as neighbours (Chigas and Ganson 2003, 67–8).

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Other initiatives contributed to intergroup contact beyond the direct participants. The rehabilitation of the Kozarac marketplace established ties between the returnee population and local authorities and, similar to the Arizona Market, the mended marketplace served as a meeting area for people of all ethnic groups (unhcr 2003b). In Drvar, the coffee and cake shop had a mixed staff and became the first place of its kind not to be characterized as Serb or Croat. It drew many people from the town and triggered socialization between the two groups (Babbitt 2003; unhcr 2003b). In Prijedor, the youth journalism club also aimed to reach the wider community by reporting on coexistence-related activities, which helped to spread the message of coexistence (unhcr 2003b). The basketball club in Drvar brought Serb and Croat youth together, which was critical in an environment in which young people of different groups otherwise had little interaction with each other. Such initiatives were popular because teenagers had little to fill their time, and they were successful in creating interethnic friendships that continued outside the basketball court.28 An independent evaluation of the Imagine Coexistence projects emphasizes that all of the sports projects and many of the youth projects figured prominently in the achievement of coexistence benefits (Fletcher School of Law and Diplomacy 2002). However, a former unhcr senior officer in Drvar, who evaluated projects in both areas, considered the most successful projects to be the ones that promoted economic benefits. He stressed the importance of having a structure in place and working toward something to bring people together. 29 Participants come to the realization that “goals could not be attained through the energy and the resources of one group without the other one” (Amir 1998, 170). This involvement of different groups in practical steps to achieve common goals can transform relationships and build trust (Blagojevic 2007). Twenty-one out of twenty-six of the projects continued after Imagine Coexistence concluded in July 2002 (unhcr 2003b). It is difficult to gauge the extent to which the initiative as a whole was successful in building solid cross-ethnic relationships and promoting sustainable coexistence in Drvar, as the members of the displaced Croat population living there in 2001–02 have since returned to their pre-war homes. Drvar is once again a monoethnic Serb town. Prijedor, on the other hand, remains multi-ethnic, and one of the founders of Genesis Project claims that the projects had an impact in the town, noting that although trust is not what it was before the war, it is considerably better than five years prior.30 Diana Chigas and Brian Ganson find that the initiatives resulted in participants coming to see each

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other in a positive light. Many of them reported that they “came to trust individuals involved in their projects from other ethnic groups” (Chigas and Ganson 2003, 68). In her evaluation of Imagine Coexistence, Eileen Babbitt stresses that one of the most valuable aspects of the projects was the “space for dialogue,” meaning physical and psychological room to meet and talk with people across the ethnic divide about deeper issues. Genesis Project was a strong proponent of creating such spaces – and even adapted unhcr’s definition of coexistence to include “engaging in trust building.” In addition to meeting to discuss community projects and joint decision-making, Genesis ran regular training workshops for project leaders and beneficiaries and had a trained psychologist on staff. Such sessions, which included project leaders bringing a beneficiary from an ethnic group different from their own and role playing, were designed to breakdown stereotypes and to build tolerance and empathy. In one of the sessions in Drvar, one of the Serb participants played the role of a displaced Croat woman and realized that their situations were very similar (Fletcher School of Law and Diplomacy 2002, 30, 35–6). This in turn, allows for rehumanization of the other (Halpern and Weinstein 2004b). Alongside economic incentives and capacity building, specific attention to dialogue and fostering empathy in social reintegration initiatives has the potential to heal individuals and societies. The Challenging Political Context Politicians and other leaders in BiH have yet to articulate a discourse of citizenship and commonality, shared values, and tolerance among the Bosnian population. Instead, many still harbour nationalist views and hold on to divisive narratives of the past and perceptions of ethno-national victimization. They continue to play on insecurity and fear of the other, a tool used prior to and during the war, in order to maintain ethnic support and ethnic voting. Such top-down ethnic discourse and political rhetoric impact local socialization processes, and can have a divisive and polarizing effect within and among communities (Juhàsz 2007). In such a context, the barriers to reintegration are high and interethnic relations and acts of reconciliation take “civil courage” (Stefansson 2010, 71; see also O’Loughlin 2010). Coexistence and reintegration initiatives put those involved in them in direct confrontation with nationalist political leaders because they chal-

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lenge notions of identity, collective myths, and divisive narratives (Chigas and Ganson 2003). Local authorities have the power to undermine coexistence activities and make their implementation difficult. The Imagine Coexistence projects, for example, had to cope with the refusal of required permits and restrictions on the use of public space (Fletcher School of Law and Diplomacy 2002). At the same time, political structures and normative community influences that do not tolerate cross-ethnic engagement can constrain coexistence and reintegration initiatives’ wider effects. Changes in attitudes and perceptions may remain limited to the direct participants and their interactions with each other. Further, participants may feel the need to keep these changes private once outside the initiatives’ safe space to conform to prevailing attitudes and to avoid being ostracized by their own ethnic group (Chigas and Ganson 2003; Halpern and Weinstein 2004a; Stefansson 2010; Stover and Weinstein 2004). Even among Bosnians who interact regularly across the divide and seek to establish interethnic relationships, there is often a shared recognition that discussion of sensitive political and moral issues related to the war should be avoided (Helms 2010; Stefansson 2010; Jansen 2010b). In the absence of a genuine spirit of national reconciliation in BiH, Bosnians remain constrained in their ability to engage in open political debate about the past and their different “truths.” Collective silence is considered less risky and more conducive to peaceful everyday coexistence (Jansen 2010b). In order to scale up the reach of coexistence initiatives and to facilitate deeper reconciliatory processes, larger social and political contexts must also be reformed. Other peace-oriented programs, alongside coexistence activities, must be implemented and able to address structural dimensions, such as developing participatory and stable political systems, countering corruption, and fostering mechanisms for non-violent conflict resolution (Chigas and Ganson 2003; Fletcher School of Law and Diplomacy 2002; Halpern and Weinstein 2004a; Pickering 2006; Burns 2001). C ON C LU S I ON

Initiatives that integrate attention to trust-building, dialogue, and social and economic needs can produce significant benefits. They require innovation, time, and dedication on the part of participants, project leaders, and funders. However, to date, unhcr and the international community

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have not shown adequate interest in such initiatives nor provided the necessary long-term commitment required for their success. unhcr’s commitment to Imagine Coexistence lasted only eighteen months from planning to conclusion. Some projects simply ended when funding ended; while many others continued, it was a struggle for some (Chigas and Ganson 2003). Communities felt abandoned after unhcr’s withdrawal (Fletcher School of Law and Diplomacy 2002); such feelings of betrayal can undermine people’s belief in the coexistence message. There was also a missed opportunity to develop a strong coalition for change. Project leaders in Imagine Coexistence had begun, through training sessions, to develop into an effective network of coexistence leaders in their communities. The short timeline for the initiative, however, meant that there was insufficient investment in processes and structures that would have allowed them to maintain their coalition and become a sustained voice for coexistence (Chigas and Ganson 2003). Nonetheless, Imagine Coexistence was a tremendous breakthrough for unhcr. It was a genuine response to the organization’s acknowledged shortfall in attention to ways to address deep distrust in divided areas of return (unhcr 2003a). This shortfall is emblematic of international efforts in general. Actors who seek to help communities struggling to emerge from conflict rarely consider devastated relationships (Chayes and Minow 2003). Post-conflict processes are focused on physical reconstruction tasks, while less tangible aspects of reconciliation are treated as lower priority (Galtung 2001). Nada, the founder of a Czech ngo operating in BiH, noted that while her organization has received funding from the Czech government for reconstruction projects, it had not received approval for any of its proposed reconciliation projects.31 unhcr, in its BiH policy for 2006, recommended that domestic resources such as the Return Fund (aimed at projects for returnees) be directed to reconciliation projects and away from reconstruction projects, which are now less essential (unhcr BiH 2005, 3). Nonetheless, as noted, the Bosnian Ministry of Human Rights and Refugees has insisted that funds continue to be directed primarily to housing reconstruction. Further, unhcr’s recommendation seems to allude to a staging process – that reconciliation should come to the fore at this juncture only because reconstruction is largely fulfilled. But, as Antonia Chayes and Martha Minow (2003, xix) emphasize: “Coexistence lends itself to immediate consideration ... [R]uptured relationships cannot wait.” Coexistence must be mainstreamed into all return efforts.

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This is particularly the case in situations of mass displacement and ethnic cleansing where violence has been widespread, targeted at identity, and present at the community level. Mass displacement has transformed the demographic composition of other countries beyond BiH. More recently, Iraqi society has become fractured politically and geographically along ethnic and religious lines. There has been a cleansing of minorities and population division into virtually exclusive zones (Adelman and Barkan 2011). The challenges of return are similar in such divided societies. Many of the initiatives discussed in the BiH case provide indicators of how return, reconstruction, reintegration, coexistence, and reconciliation can be mutually reinforcing processes. They involve recognition of the important lessons that “home” does not equal a house: “The right to one’s home is not the same as a right to property, though the two rights overlap. Property is transferable; we belong to a home” (Adelman and Barkan 2011, 238). Home is a place where one is not consumed with daily struggles and distrust, but where it is possible to live a future-oriented “normal life” (Jansen 2006). These multifaceted initiatives in BiH have been constructive and should be adopted as models upon which to build in other complex, post-conflict return and reintegration operations. There also need to be more strategies and efforts to involve local authorities and political leaders in such initiatives. This could expand the project’s impact beyond the direct community participants and create safe political space for coexistence activities and deeper dialogue (Chigas and Ganson 2003). For example, one of the project leaders in Imagine Coexistence in Prijedor belonged to the municipal assembly. He spoke positively about the benefits of the project to his peers and sought to win the city’s backing (Fletcher School of Law and Diplomacy 2002, 30). Although the many nationalist politicians in Bosnia are still unlikely to be receptive to such initiatives, some alternative political forces have emerged in recent years (Fischer 2006c). A new transnational party, called Naša Stranka (Our party), launched in 2008. The party’s co-founders aim to counter ethnic divisions and to build trust among groups with a focus on civic rights (Sito-Sucic 2008; EurActiv 2010). The Social Democratic Party is also a multi-ethnic party and provides a genuine alternative to nationalist dominance (Toal and Dahlman 2011). These parties adopt a more inclusive approach and could be more open to coexistence programs than those that cater to a specific ethnic group. In cases generally where geographic divisions

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reflect ongoing political divisions, finding ways to reach out and connect at the political level is essential. Further, greater inter-agency coordination is necessary for efficient, comprehensive, long-term planning of economic and social reintegration. In the past, unhcr has sought to institutionalize relationships with development organizations, such as the un Development Programme and World Bank. This needs to be pursued further. Efforts should also be made to partner with the private sector to promote employment, and with international and local actors in the field of reconciliation. Such collaborations would allow for pooling funds and sharing expertise. They could also draw more focus to reintegration, coexistence, and reconciliation from national and international communities and allow for sustained attention to these long-term processes. The experience of BiH indicates that longterm commitment is essential. Such concerted efforts and integrated initiatives are still greatly needed in BiH to deal with the persistent economic and social ills. They are needed to ensure that Bosnians who survived the war do not continue to struggle during peacetime. They are needed to ensure that return is sustainable and reintegration possible. They are needed to ensure that neighbours throughout the country will once again feel at home, and will sit down together and have a coffee.

notes 1 This is an updated and revised chapter based on a prior article: “(Re)Imagining Coexistence: Striving for Sustainable Return, Reintegration and Reconciliation in Bosnia and Herzegovina,” International Journal of Transitional Justice 3 (1, 2009): 91–113. 2 I use the term “Bosnian” as short for “Bosnian Herzegovinian.” 3 As of 2000, the population of BiH was 48 per cent Bosniak, 37.1 per cent Serb, 14.3 per cent Croat, and 0.6 per cent other – similar to before the war (cia World Factbook 2014). 4 Figures are as of the end of December 2012. The total number of returns recorded was 1,030,392 (unhcr BiH 2012). 5 Personal interviews, Bosnian Croat returnees, Doboj/Derventa area, BiH, 30 July 2006. 6 Created under the Dayton Peace Agreement, which ended the war in BiH, the Office of the High Representative is an international institution that oversees the implementation of the Peace Agreement’s civilian aspects.

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7 Annual returns were 67,445 in 2000 and 92,061 in 2001 (unhcr 2003d). 8 Personal interview, Office of the High Representative rule of law advisor, Sarajevo, BiH, 19 July 2006. 9 Personal interview, osce human rights advisor, Sarajevo, BiH, 17 July 2006. 10 Personal interview, undp Support to Results-Based Approach officer, Sarajevo, BiH, 18 July 2006; personal interview, Bosnian Croat returnee, Doboj/Derventa area, BiH, 30 July 2006. 11 Personal interview, Bosnian ngo worker, Sarajevo, BiH, 20 July 2006. 12 N.D., e-mail to author, 7 June 2006. 13 As high as 30 per cent in BiH (Bowen 1996). 14 Personal interview, usaid minority returns officer, Sarajevo, BiH, 20 July 2006. 15 The surveys were conducted in Mostar (Federation) and Prijedor (rs). 16 Personal interview, Bosniak returnee to Prijedor, Prijedor, BiH, 15 July 2006. 17 Personal interview, Bosnian worker on Dutch reconstruction program, Sarajevo, BiH, 20 July 2006. 18 Religious identity directly reflects ethnic identity. Bosniaks generally are associated with Islam, Croats with the Roman Catholic Church, and Serbs with the Serbian Orthodox Church. 19 Personal interview, unhcr protection officer, Banja Luka, BiH, 14 July 2006. 20 General Charles Boyd was the Deputy Commander in Chief, US European Command, from November 1992 to July 1995. 21 Ibid. 22 For example, one beneficiary chose to make a wrought iron gate for the local mosque as his contribution. 23 Personal interview, undp Support to Results-Based Approach officer, Sarajevo, BiH, 18 July 2006. 24 Ibid. 25 Personal interview, Bosnian representative of the Danish Refugee Council, Sarajevo, BiH, 21 July 2006. 26 Personal interview, unhcr senior field clerk, Banja Luka, BiH, 14 July 2006; and personal interview, former Bosnian Serb returnee to Drvar and former unhcr officer, Sarajevo, BiH, 18 July 2006. 27 Personal interviews, local development workers, Sarajevo, BiH, 20 and 21 July 2006. 28 Personal interview, Bosnian ngo worker, Banja Luka, BiH, 14 July 2006.

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29 Personal interview, former Bosnian Serb returnee to Drvar and former unhcr officer, Sarajevo, BiH, 18 July 2006. 30 Personal interview, Bosnian ngo worker, Banja Luka, BiH, 14 July 2006. 31 Personal interview, Czech ngo worker, Višegrad, BiH, 31 July 2006.

preface

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9 Resolving Internal Displacement in Turkey: The Need for Reconciliation AYŞE BET Ü L ÇELIK

The massive internal displacement of Kurds in the 1990s is one of the most important issues within the larger Kurdish Issue in Turkey. It encompasses several elements of the conflict and requires special attention in order to develop solutions to the Kurdish Issue. Despite its importance, however, both academics and politicians in Turkey have under-examined internal displacement. In 2009, the Turkish government launched the Kurdish Opening1 to address several dimensions of the Kurdish Issue; however, this initiative quickly faltered and failed to deal with topics such as the problems facing internally displaced Kurds. In 2013, the government initiated another wave of the peace process, yet by mid-2014 this new initiative had not taken any policy measures to address internal displacement. In this chapter, I argue that a reconciliatory approach and policies are needed to deal effectively with the Kurdish displacement, one of the most pertinent issues to arise from the three-decades-long conflict. I argue for a rights-based approach to policies designed to address the internal displacement situation, which must include a focus on reconciliation between the different actors in the conflict in order to build a long-lasting peace process. The data for this chapter were drawn from my fieldwork in the cities of eastern and southeastern Anatolia that experienced forced migration, especially in the form of rural to urban migration, as well as in Ankara and Istanbul, the largest host cities for Kurdish idps.2 In what follows, I first introduce the rights-based approach to displacement and how reconciliation factors into it. I then provide a brief history of Kurdish displacement in Turkey, and discuss the perceived “irreconcilable” differences between

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the Kurdish internally displaced persons (idps), the Turkish state, and the civil society organizations (csos) working on the issue. Next, I explain how certain elements of reconciliation are crucial to addressing idps’ needs and problems. Finally, I examine how the internal displacement situation in Turkey can shed light on some of the theoretical debates in the displacement and reconciliation literatures. In this analysis, I focus on how the Turkish state’s compensation program to idps has failed to translate into reconciliation among different strata of Turkish society and public offices. T H E R I G HTS - B A S E D A P P ROAC H TO I NTE R N A L D I S P L AC E M E N T

The rights-based approach has been at the heart of advocacy efforts to establish internal displacement on the international agenda. The un’s 1998 Guiding Principles on Internal Displacement are founded squarely on a rights-based approach, and stress the state’s responsibility to equitably respect and protect the rights of all those within its borders, including idps. In contrast to needs-based approaches to displacement, which see displaced people as a problem and focus on satisfying their needs, the rights-based approach focuses on “the integration of two kinds of rights: civil and political rights; and economic, social and cultural rights, as set out in international human rights conventions and covenants” (drc on Migration, Globalization and Poverty 2007, 1). In practice, responses to internal displacement often lack a concerted focus on the rights of the displaced, and scholars who work on displacement issues only began to address them from a rights-based approach relatively recently.3 The traditional developmentalist or humanitarian (needs-based) approach to conflict-induced displacement centred on providing aid and economic help to idps and allocating resources to conflict areas. This focus stemmed from the fact that in the aftermath of the Cold War, the international community was primarily concerned with providing safe havens to the displaced, including to refugees who crossed borders. To deal with sudden massive displacement waves, countries and international non-governmental organizations allocated material and human capital for aid and development. Such an approach was necessary to deal with the immediate consequences of displacement, but failed to provide a long-term vision to address the root causes of conflict that led to that displacement (Churruca Muguruza and de la Cruz 2011). The rights-based approach to displacement recognizes individuals as rights-holders with legal entitlements to protection and assistance, and

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states and other authorities as duty-bearers with responsibilities to respect and protect individuals’ rights. According to the Office of the United Nations High Commissioner for Refugees (unhcr), refugees’ and idps’ protection needs to be rights-based, defined as “an approach grounded upon and geared towards the full and equal enjoyment of rights”; the protection of these rights is the state’s foremost responsibility (unhcr 2010, 10). Scholars who work on return movements also emphasize the importance of a rights-based approach by citing voluntariness, property restitution, and non-discrimination as parts of the framework that guides the return process (Teferra 2012). One of the challenges of enacting a rights-based approach pertains to the difficulty of enforcing human rights standards. For example, the un’s 1998 Guiding Principles are central to the rights-based approach to internal displacement and are well-grounded in the international human rights laws. However, they are considered soft law, and it is thus hard to ensure states comply with them (Kurban et al. 2006b). Moreover, as I discuss below, especially in cases concerning the rights of ethnic groups, states often refuse to grant equal rights to their ethnic citizens, which in the first place is one of the causes of displacement. Nevertheless, international organizations’ and ngos’ adoption of the rights-based approach to displacement in recent years reflects the view that this approach can be a powerful way to pressure states to improve responses to idps. Accepting responsibility for rights violations, redressing losses, and preventing continued conflict cycles not only fall under states’ responsibilities as dutybearers, but also are crucial for the transformation of conflict and the establishment of peaceful societies. Keeping in mind that most conflict-induced displacement results from ethnic conflicts, it is essential to address such issues from a rights-based approach to prevent re-escalation. Especially in ethnic conflicts that result from the state’s unwillingness or inability to recognize ethnic groups’ cultural, social, and economic needs and rights, sustainable peace and development require states to respect these rights so that idps from marginalized ethnic groups feel included and recognized as equal citizens. LOC ATI N G R E C ON C I L I ATI ON WI T H IN TH E R IG HTS - B A S E D A P P ROAC H TO D I S P L AC E M E N T

Reconciliation, a process “by which parties that have experienced an oppressive relationship or a destructive conflict with each other move to attain or to restore a relationship that they believe to be minimally accept-

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able” (Kriesberg 2001, 48), is deep and complex. There are many types of reconciliation, not all of which resonate universally. Many move far beyond “minimally acceptable” conditions, and ask for deeper understanding and acceptance among the conflicting parties. Reconciliation “involves changes in attitudes, aspirations, emotions and feelings, perhaps even beliefs” (idea 2004, 4), and may encompass several elements: truth, acknowledgment of wrongs, justice, forgiveness/ healing, reparation, bridging trust across societal divides, and individual or group security and well-being (Kriesberg 2001, 48; Lederach 1998; idea 2004, 4). Assefa (2001) argues that the parties can only enter into a new and mutually enriching relationship if they take the following steps: honestly acknowledge the harm and injury they inflicted on the other, express sincere regrets and remorse for the injury, apologize for their role in inflicting injury, let go of the anger and bitterness that conflict and injury caused, and provide compensation to the victims for past grievances and damages. These steps are required not only to move toward a resolution of the painful past, but also to enable conflicting groups to live together sustainably and interdependently in the long-term (Lederach 1998, 30–1). According to Rouhana (2004), one of the key issues reconciliation processes must address is the historical responsibility of both individual perpetrators and political systems. This becomes especially crucial in asymmetric relations and repressive systems. Addressing questions of trust and historical responsibility, Rouhana (2004, 37) argues, is “of utmost importance not only because they validate the experience of the victims, although this validation is essential for the victims’ transcendence of a history of domination and abuse. These processes are also critical to reassuring the victims that past wrongdoing will not reoccur and to determining future steps needed to rectify the past and plan the future.” Another challenge in societies struggling to achieve even a minimal degree of reconciliation is changing perceptions and creating shared histories among the parties. Especially in conflicts that are long-lasting and resistant to resolution, beliefs about the nature of the conflict and major events that shaped it are often one-sided and selective; they help members of the society to view themselves as just, righteous, humane, and moral, and explain the present situation. This “reconstructed” and “re-appropriated” memory is incorporated into individuals’ daily life in different forms (Bar-Tal 2003). What Bar-Tal terms the “culture of violence” in ethnic conflicts, which develops in response to the experiences of physical violence throughout the conflict, permeates societal products, institutions, and

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channels of communication that perpetuate a collective memory in the form of societal beliefs, public rituals and ceremonies, and monuments. For example, one group’s members might commonly believe they are the victims of the conflict and that members of the “other” are the perpetrators, or national monuments may honour such victims. These cultural artifacts become constant and enduring reminders of the conflict itself (Bar-Tal 2003). In the absence of shared representations of history or a common language to refer to the conflicting events, parties in conflict might choose different reference points from the past to justify their positions. Therefore, a reconciliation process that aims for coexistence between the parties should be owned not only by the perpetrators and victims, but also by other groups in the conflict-affected society; it should have a political structure that supports bottom-up initiatives and allows previously silenced voices to be heard. Beyond transforming political institutions and cultures, reconciliation processes also need to enable more interaction and communication between the conflicting parties to change what Bar-Tal (2000) calls the “conflictive ethos.” To establish a peaceful society and prevent conflicts, such transformation can be advanced “by using an array of processes that address trauma, transform conflict, and do justice” (Schirch 2004, 26). This means reconciliation is a multifaceted, multilayered process that should consider diverse needs and problems at the individual, group, and national levels. It requires moving from a concerted focus on isolated problems to seeing the whole picture and adopting a holistic approach to address root causes; such a holistic approach incorporates “various processes – legal, social, political and economic – at many levels of society” (Baxter 2007, emphasis added). As Rouhana (2004, 35, emphasis added) argues, “reconciliation ... seeks to achieve a kind of relationship between the parties that is founded on mutual legitimacy.” There are various reconciliation models, and many intractable conflicts require multiple layers of reconciliation processes. Moreover, reconciliation must not only occur at the victim-perpetrator (individual) level and repressed group-repressive system/group (intergroup) level, but should also encompass the bystanders within the society in which the conflict took place (societal level). It also requires a mutual legitimacy and understanding between actors at different levels, such as between individual victims and the state. Restoring relationships at multiple levels requires dealing with the past. Many scholars and practitioners argue that truth-telling is necessary for reconciliation at individual and societal levels because it acknowledges

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and validates the hurtful experiences of the past. Acknowledgment enables people to recognize that the “other” has a story, re-humanizing the demonized enemy and shattering simplistic, polarizing, good-versus-evil narratives. Studying forced migration from a rights-based approach and putting reconciliation at the centre, therefore, expands understandings of displacement beyond simply a humanitarian phenomenon. Approached from this perspective, displacement may be located in a wider political and historical context and linked to the inequalities and violations at its root. In other words, viewing displacement through the lens of rightsbased approaches and reconciliation theories requires a nuanced understanding of the causes of the conflict; listening to different explanations of the conflict that led to displacement; and opening a channel for dialogue between these different approaches, as well as understanding the social and political context of forced migration and its aftermath. R E C ON C I L I ATI ON : A NE W

“R”

IN DU R A B L E S OLU TI ON S TO D I S P L AC E M E N T ?

Scholars concerned with the resolution of displacement have only started to consider certain elements of reconciliation relatively recently (see, e.g., Çelik 2006, 2013; Koser 2007; O’Neill 2009; Fagen 2009; McHugh 2010). The Inter-agency Standing Committee (iasc) Framework on Durable Solutions for Internally Displaced Persons points out the need for idps to benefit from effective remedies for displacement-related violations, including access to justice, reparations, and information about the causes of violations (iasc 2010). It also stresses the importance of adopting a human-rights-based approach to supporting durable solutions that puts idps at the centre of decision-making processes. In other words, according to the framework, idps need to be included in local and national policymaking processes, and receive redress for any material and immaterial losses they experienced during the conflict that led to displacement. Remedies, such as sincere apology and regret along with some form of compensation for immaterial losses, are important for not only redressing idps’ losses but also preventing the conflict’s recurrence. Where a close relationship exists between conflict and displacement, the Framework on Durable Solutions also suggests “peace agreement[s] should effectively address the specific needs of idps, including: safety and security; housing, land and property issues; reconciliation and peace-building; post-conflict reconstruction; and remedies for violations suffered” (iasc 2010, 25).

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The un’s Guiding Principles on Internal Displacement state that idps, whether in their places of settlement or after their return home, should not be subject to discrimination (principle 29). Building on this principle, the Framework on Durable Solutions provides guidance to local and international actors on how they should address possible inter-communal problems that idps might face in the places where they (re)integrate, resettle, or return, and indicates: Beyond or in the absence of a formal peace process, community reconciliation and confidence-building mechanisms are often necessary, in particular where idps and the resident population or different groups within the idp population are seen as having been associated with opposing sides in the conflict, but now live side by side. In addition, conflict resolution mechanisms may be needed to resolve disputes that occur when idps seek to integrate or re-integrate into communities where there is competition over scarce resources, such as land or livelihood opportunities. (iasc 2010, 26) Another important question that needs to be tackled when considering the relationship between reconciliation and displacement is whether the elements of reconciliation can be addressed in a way that may lead to durable solutions to displacement even while conflicts are ongoing.4 Within this context, it is important to remember that the international documents that inform responses to internal displacement, such as the un’s Guiding Principles and the iasc’s Framework on Durable Solutions, suggest that responses should occur in a timely manner. In other words, national and international actors can and should address some problems that arise from displacement without waiting for conflicts to end. The same argument can be extended to reconciliation. Even though the continuation of violence makes conflicting parties less likely to accept actors’ reconciliatory moves, certain elements of reconciliation can promote peace and durable solutions to internal displacement and should therefore be promoted where possible, even during conflict. In this context, building trust across societal divides and between the state and ethnic groups, increasing individual and group security, and acknowledging wrongs become the most important elements of reconciliation efforts and cannot wait for peace agreements. Rather, formal and informal efforts to advance these dimensions of reconciliation may make the advent of a peace agreement all the more likely.

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As international standards show, reconciliation is an important dimension of rights-based approaches to the resolution of displacement. Under international law, displaced persons have the right to return (whether temporarily or as a durable solution to their displacement), and if this right is not respected reconciliation may be undermined. However, addressing return from a rights-based approach requires expanding on traditional humanitarian and development methods to include support for reconciliation, because in the absence of at least a minimal degree of reconciliation at the local level, returns will be unsustainable. Where traditional approaches focus on the efficient delivery of aid to the displaced, integrating reconciliation as part of a rights-based approach necessitates being more responsive to idp’s rights and needs, as well as more transparent and collaborative.5 Additionally, this approach requires states to take action to eliminate structural violence and cultural artifacts that celebrate the violent past, and to redress human rights violations that took place before, during, and after displacement. KUR D IS H I N TE R N A L D I S P L AC E M E N T I N TU R K E Y

Even though Turkey’s Kurdish Issue has roots as far back as the Ottoman Era, with eighteen rebellions taking place between 1924 and 1938, it became known as the Kurdish Question after 1984 with the emergence of the pkk (Partiya Karkerên Kurdistan, Kurdistan workers’ party), an irredentist group in conflict with the Turkish state.6 The pkk launched its first attack on the Turkish state in 1984. In 1987, following further pkk attacks, the government declared emergency rule in thirteen Kurdish-populated provinces. Since then, the war between the Kurdish insurgents and the Turkish military forces has claimed more than 30,000 lives. In the 1990s, village evictions and forced displacements took place in the eastern and southeastern parts of Turkey where the majority of the population is Kurdish. Displacements were mostly due to the fact that both the pkk and the state forced the villagers to take sides in the conflict, and/or the villagers felt insecure because of the increase in violence in the region. The report prepared by a parliamentary research commission formed in 1997 to examine internal displacement stated that the villagers’ eviction constituted a violation of a number of constitutional rights, such as the right of all citizens to protect and develop their lives (article 17), respect for private and family life (article 20), respect for domicile (article 21), the right to property (article 35), the right to the protection of

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basic rights and freedoms (article 40), the right to education (article 42), and the right to just compensation for the expropriation of private property (article 46) (Kurban et al. 2006b). Many idps did not know about the condition of their lands, homes, and belongings during their long stays away due to the worsening security conditions in the region (Human Rights Association 1995). Access to evacuated villages was also prohibited. There were no official records of the number displaced in the conflict, and the extent of displacement is still a contested issue between the csos and state institutions: estimates range from one million to four million idps. idps migrated mostly to the city centres in the region or to metropolises in the western parts of the country. Numerous studies have found that even after many years, most idps still face devastating living conditions in their place of relocation (Göç-Der 2002; Çelik 2005b; Aker et al. 2005; Kurban et al. 2006b). Literature on the consequences of Kurdish internal displacement within the region and in major cities shows that it fostered urban poverty (Human Rights Association 1995, 1998; Sönmez 1998; Göç-Der 2001; Çelik 2005b; Altıntaş 2003), social exclusion (Human Rights Association 1995, 1998; Erder 1997, 1998; Çelik 2005b), a few cases of suicide (Halis 1999), and social marginalization in urban life, especially among women (Çelik 2005b). These findings show the impact that displacement has on all levels of society. The Turkish state policies addressing the consequences of forced displacement mostly focused on aiding and, more recently, (unsuccessfully) compensating idps for their losses. Historically, the state did not recognize the massive number of idps and did not develop efficient strategies to help them resolve their problems in their places of origin and in the host cities to which they migrated. After Representative of the Secretary-General on Internally Displaced Persons Francis Deng visited in May 2002, the government started to enact measures intended to redress the wrongs idps suffered. However, as I discuss below, there are various problems both in the implementation of these measures and the intentions that the government institutions have in their stance towards displacement problems (Kurban et al. 2006a, 2006b; Fagen 2009; Yükseker and Kurban 2009). These past state practices show that the Turkish state’s vision for the resolution of the Kurdish Issue and displacement is still mostly focused on the economic development of the Kurdish-populated region and granting limited cultural rights to Kurds, rather than on recognizing and respecting their rights and advancing reconciliation on different levels.

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“ I R R E C ON C I L A B L E

D I FF E R E N C E S ”

B E T WE EN THE STATE , I D P S , A N D N G OS

It is important to acknowledge that since every conflict has its own history and nature, every reconciliation process should be contextually defined and based on the society’s specific needs and conditions at the given time. Although the academic literature on reconciliation suggests that there are several key areas that need to be addressed in order to have a successful reconciliation process – such as justice, peace, historical responsibility and accountability, trust, security, apology, and forgiveness – it is crucial that reconciliation projects should first determine what different actors perceive as “irreconcilable” areas in a specific conflict and design policies to address them, incorporating responses to the broad areas identified in the literature. One of the biggest challenges in overcoming the bitter history of Kurdish displacement is the gulf between the way the state and other actors, especially ngos, present the “facts” and the terminology they use to frame the conflict. I will now detail the issues in a nutshell. Statistical “Facts” There is still a large discrepancy between ngos’ and state institutions’ claims regarding the number of idps in Turkey. As indicated in a report following Deng’s 2002 visit, determining the numbers of those affected by internal displacement is crucial in designing effective coping mechanisms. Until the 2000s, the Turkish state’s official stance toward the issue was to ignore the scale of the mass displacement. According to a report prepared by a committee of the Turkish Grand National Assembly, in six eastern and southeastern Anatolian cities, which were under the state of emergency legislation, and in five nearby cities, 820 villages and 2,345 hamlets were evacuated and the idp population totaled 378,335 (tbmm 1997). Turkish state officials claim that out of this number, 137,636 idps have returned to their homes since 1998, when a Prime Ministry Circular initiated the Return to Village and Rehabilitation Project.7 Such state statistics indicate that only a relatively small idp population needed assistance. On the other hand, international organizations and domestic and foreign ngos historically claimed that the idp population in Turkey stood between one and four million. For instance, the United States Committee for Refugees (1999) has estimated that the number of idps is between 380,000

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and one million. Human Rights Watch (2002) has cited a figure of two million. The Foundation for Society and Legal Studies (tohav) (2006), the Human Rights Association (1995), and the Migrants’ Association for Social Cooperation and Culture (Göçmenlerle Yardımlaşma ve Dayanışma Derneği, Göç-Der) (2001) have used estimates between three and four million in their reports and declarations (Human Rights Association, Turkish Human Rights Foundation, Göç-Der, et al. 2001). The first decade of the twenty-first century was a turning point for state policies regarding the internal displacement issue. After the Turkish state welcomed Deng in 2002,8 the government commissioned Hacettepe University’s Institute of Population Studies to conduct a comprehensive survey on idps in Turkey, Türkiye Göç ve Yerinden Olmuş Nüfus Araştırması (tgyona, Turkey migration and internally displaced persons survey).9 The tgyona report (hünee 2006) estimated the size of the displaced population originating from the fourteen provinces due to security related reasons as between 953,680 and 1,201,200. Interestingly, this estimate of the idp population falls between estimates claimed by the ngos and the state. Notably, the state resisted publicizing the report for a long time, and the number presented in the report is almost three times greater than numbers the state had previously claimed (Aköz 2007). The difference in the numbers official sources and ngos present reflects their different understandings of and discourse on the nature of the conflict and possible policies to address these issues. Even after the release of the tgyona report (hünee 2006), some csos claim that the numbers are much higher than what is reported by the state and the tgyona report. According to a recent report written by the branches of Göç-Der (2011, 2), there are “more than three million” Kurdish idps. The discrepancy stems from the fact that the state and ngos use different measures to estimate the idp population after some twenty years. While the state commissioned academics in a state university to estimate the size of the population based on idp numbers in host communities, the ngos multiplied the number of evacuated hamlets and villages by an estimated minimum number of people who used to live in them. Under- or over-reporting the numbers of idps takes internal displacement to another conflict level: if numbers were more than what the state claimed for years, this raises the question of what else it hid. Given that the scale of displacement is more than what the state admitted, did it intentionally fail to protect a large segment of its population? Did it have efficient policies to deal with its consequences? Now that the discrepancy

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between the state’s previous claims and evidence-based estimates of the idp population is public knowledge, should the state apologize for any mistakes that were predicated on this underestimation? Alternatively, are some political actors continuing to over-report the number of idps, with a view to shaming the state and strengthening their own positions in possible negotiations? Such questions undoubtedly affect approaches to dealing with the consequences of internal displacement and keep the conflict between ngos and idps and the state alive. Causal Facts and Terminology Whereas the Turkish state claims that forced migration is the consequence of “terrorism” and the “fight against terrorism” in the region, most ngos claim that the state’s village guards and military forces compelled many to leave by burning houses and terrorizing civilians (Human Rights Association 1995; Göç-Der 2002; tohav 2006). Furthermore, the state and these ngos still do not agree on the terminology used to define internal displacement. The Ankara branch of the United Nations Development Programme officially translated the un’s Guiding Principles on Internal Displacement into Turkish in 2005. To refer to “displacement,” this official translation adopted the term “yerinden olma” – an active verb that does not indicate that someone caused the displacement. ngos opposed this term, and claimed that the correct translation should be a passive one, “yerinden edilme,” indicating that displacement was done by some agent, referring mostly the role of state actors, such as the military, gendarmerie, or village guards.10 Compensation During Deng’s visit to Turkey in 2002, the government was preparing legislation to compensate losses that occurred during what it called its fight against terrorism. In October 2004, the Law on Compensation for Losses Resulting from Terrorism and the Fight against Terrorism (Compensation Law) came into practice. Article 5 assigned damage assessment commissions, which were to be established in the affected provinces on demand, the task of processing idps’ petitions, evaluating the incurred losses, and specifying the amount of compensation. The law provides reparation for three kinds of losses: damage to moveable or immoveable property, damage to the life and body of the person, and damage sustained due to inability to access one’s property. After assessing the damage applicants sus-

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tained, the commissions are required to prepare declarations of friendly settlement, which specify the compensation to be paid in cash or in kind, and present the declarations to the applicants (Kurban et al. 2006a). However, ngos reported several problems regarding the composition of the commissions as well as the application of the law (Kurban et al. 2006a, 2006b; Yükseker and Kurban 2009).11 idps and ngos regarded these commissions, composed almost entirely of public officers with only one civil society participant – a representative from the bar associations of the city in which the commission operated – with suspicion. The frequent unwillingness of the vice governors who led the commissions to give the victims their due compensation also fostered mistrust toward the state.12 Additionally, although the law’s objectives include “bolstering trust towards the state, rapprochement between the state and its citizens and contributing to social peace,” several problems led ngos and idps to question the state’s sincerity and a whether reconciliation between the state and idps was even possible.13 These problems included the law’s exclusion of compensation for pain and suffering; lack of mechanisms for bringing the perpetrators of violations to justice; and the fact that ngos, as representatives of the idps, were not included in the compensation committees (Kurban et al. 2006a). Fostering Return Migration Historically, the Turkish state’s position in dealing with internal displacement has focused on regional development, unlinking the issue from its political context (Ayata and Yükseker 2005). This position meant that state policies were concentrated on fostering return migration rather than on understanding the root causes of the conflict.14 In fact, previous studies show not only that the percentage of people who would like to return is low, but also that it is usually the elderly and families with economic difficulties who are more likely to return (hünee 2006; Kurban et al. 2006b). Compared to the view of many ngos and international organizations that return migration should be supported by long-lasting political, social, and economic reform, the state has concentrated on short-term reconstruction policies; that is, mainly providing infrastructure for villages and material assistance to idps. In response to the government’s policies, ngos emphasize that return is a right, not a substitute for other crucial policies that deal with the root causes of the conflict (Ayata and Yükseker 2005; Kurban et al. 2006a, 2006b). As discussed above, most idps could not return to their homes due to the

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ongoing conflict for a long time, and established new lives in the places they migrated to. However, many idps, especially the elderly, still long for their villages. Many displaced men, who could not find jobs in their new places of residence, want to return to their villages and work seasonally. Last, but not at least, idps want to be able to visit their homes (Kurban et al. 2006b). All these perspectives lead them to call for return as a “right,” but not always with a view to resettling permanently in their villages. The Turkish state willfully ignores these demands by preventing access to some villages,15 arguing that it also has a right to prevent its citizens from exercising their right of return when state security is at risk. Even though the Turkish state can legitimize its position by arguing that in the midst of an ongoing conflict, the state has a right to prevent its citizens’ access to dangerous places, some ngos argue that security is merely an excuse to prevent the displaced resettling in their villages, especially in the mountain villages the pkk can control. Moreover, according to a report prepared by Göç-Der (2008), the Compensation Law is not designed to help idp returns, and the compensation provided is not enough for most idps to be able to return and restart their lives. C O N FL I CT - I N DU C E D D I S P L AC E M E N T I N TU R K E Y : TH E N EE D FOR R E C ON C I L I ATI ON ?

The above arguments show that the Turkish state historically has not been responsive to idps’ needs and interests or to ngos’ requests and criticisms. Before discussing the areas where reconciliatory policies and programs are needed, I discuss different potential reconciliation models. Reconciliation is both an outcome and a process undertaken to restore relationships between different actors. However, which relationships reconciliation processes should seek to restore is a complex and critical question. According to Tavuchis (1991), apology and forgiveness can occur at various levels: the interpersonal level between one individual and another (one to one); between an individual and a collectivity (one to many); between a collectivity and an individual (many to one); and between one collectivity and another (many to many). As the state represents (or should represent) a collectivity, one of the important components of reconciliation in communities affected by armed conflict is restoring relations between the state and its citizens.16 In the context of Turkey’s Kurdish Issue, the damaged relations between the state and idps as well as between idps and other collectivities in society constitute the most important dimensions of the need for reconciliation.

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Restoring State-idp Relations One of the central aspects of the damaged relationship betwen the Turkish state and Kurdish idps is loss of trust. The longstanding violence in Kurdish-populated regions led to Kurdish idps’ belief that the state considers them second-class citizens. At the same time, the fact that some villagers support the pkk led state officers to view Kurdish villagers as potential pkk members. Moreover, the Compensation Law and state aid programs to the poor added to this mistrust instead of addressing it. As a member of the Adıyaman Bar Association involved in the implementation of the Compensation Law observes: Let me tell you an interesting story. A man applied for a Green Card [a generic poverty alleviation government program card providing free health care and reduced medical costs]. This is what the gendarmerie did: they wrote a letter to him saying that some relative of his at some time joined an illegal organization; therefore, he is disqualified. Now, can this person have peace with the state? (Member of Adıyaman Bar Association, interview, 8 February 2007) A Göç-Der (2011, 220) study found that some idps whose applications for redress under the Compensation Law were rejected think that state officers and members of the Compensation Law committees in the municipalities work to collect evidence against idps. These examples indicate that although the state has taken measures to address the economic dimensions of internal displacement (e.g., poverty) and idps’ compensation claims, the mechanisms it has produced and the way they are applied do not heal the most damaged relations. Other important components of possible reconciliatory moves related to the Kurdish internal displacement situation include the acknowledgment of past wrongs; recognizing that internal displacement is part of the Kurdish Issue, and understanding the position of the “other” (both by ngos and the state). As another member of the Adıyaman Bar Association (interview, 8 February 2007) notes, it is important to understand why some people in the Kurdish-populated regions were “against the state”: “Being against the state is almost automatic [here]. There are those who lost their kids, those whose kids are in prison and those whose sons/daughters are in the mountains ... If you only construct roads for them, or bring them educational opportunities, we cannot get over this dichotomy. There is an economic side to the issue but also

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a political side. In the latter, there is a need for important steps to be taken.” Thus, restoring trust between the state and idps first and foremost requires that the state listen to idps’ stories, understand their positions, treat them as citizens, and acknowledge possible past mistakes while addressing the causes of the conflict that gave rise to displacement in an effort to prevent its recurrence.17 For many idps and ngos working in this field, this entails finding and prosecuting the perpetrators of extra-judicial killings and securing public acknowledgment and apology for such actions as well as for village evacuations. Moreover, many also believe that state mechanisms, such as the Compensation Law, were put in practice not to try to sincerely compensate idps for their losses, but as a show for European countries to create the illusion of support for the idps.18 The leader of the Diyarbakır Branch of the Human Rights Foundation, one of the powerful human rights organizations that deal with various types of human rights violations, including displacement in Turkey, argues that such laws do not do justice to those who suffered socially and economically, or compensate for their losses: For us this type of compensation and its application are not satisfactory and do not provide justice. And it is not only that. There are thousands, millions of people who were uprooted by forced evictions and alienated from social life. This is a very serious problem. These people do not have any social security... The most important thing is that you bring up methods and mechanisms to re-incorporate them into society as productive people ... This is what the state should be doing but has not done so far. For this, it is important to confront the past and account for past mistakes. Accepting that a problem exists is the prerequisite to resolving it and the state is not doing this ... It has to accept that there is a Kurdish Issue and it has to deal with its consequences. (Leader of the Diyarbakır Branch of the Human Rights Foundation of Turkey, interview, 24 January 2007) Restoring Village Guard-idp Relations The long-lasting conflict in southeastern and eastern Anatolia also damaged relations between the villagers and the village guards and “helped to deepen local cleavages and hostilities [at] the local level” (Balta 2004, 2).19 Even though studies show that most idps do not want to return permanently to their villages, the existence of village guards still creates a per-

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ception of insecurity and prevents some idps from returning to their villages – whether temporarily or permanently – as they wish to avoid further confrontation with the guards (Kurban et al. 2006b). The negative view toward village guards is not only a result of the crimes many guards committed, but also because in the 1990s “the state used the village guardianship system to identify which village and/or individuals were pro-state,” thus creating a division among the population in eastern and southeastern Anatolia (Balta 2004, 13). Göç-Der’s (2011, 225–6) study found that half of all idps see the village guard system as a barrier to return and half consider security officers (e.g., gendarmerie) as an obstacle to return. Similarly, Kurban and Yeğen (2012) argue that security concerns and village guardship are the most important factors preventing return. An idp’s remarks are telling in this regard: “We wouldn’t return if there would be even one village guard. I would never make peace with them. Only if they would leave their arms could they be my brothers. In that case, I do not have to ask for an apology” (Female idp, interview, July 2004). Many ngos share similar concerns. They argue that if the Turkish state is sincere in its attempts to resolve the conflict and find durable solutions to internal displacement, it has to abolish and disarm the village guards. However, in many communities, the state pays village guards. Without the village guard system, they would not have any form of social security, so it is not easy to convince them to put down their arms, not to mention acknowledge past wrongs in which they may have been involved. Given these facts, they constitute potential spoilers if the pkk and the state ever make peace. Moreover, because many of them have committed crimes such as abducting women, killing civilians, aggravated assault, and taking up arms against their own communities, they are not welcome among the villagers. The state has prosecuted only a small percentage of village guards who undertook criminal acts. Besides the breakdown of the social fabric with the introduction of the village guard system and many petty crimes committed by the villagers, the state’s connivance further contributed to the idps’ sense of injustice. The village guards are not a homogenous category: not all have committed crimes, and some question the village guard system and the things they have done. However, quitting is for the most part not an option because of the insecurity felt against the pkk and the system provides benefits to the guards (Özar et al. 2012). Because it is known that the village guards “have joined soldiers in village burnings, unsolved murders and attacks in 1990s,” and the state did not do anything to bring the perpetra-

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tors to court, idps like the above cited female idp are uneager to reconcile with the guards (Özar et al. 2012, 170). Indeed, many idps and ngos want to see the prosecution of village guards who committed crimes as part of the peace and reconciliation process (Akdeniz Göç-Der 2014). Moreover, because in some villages, village guards confisticated idps’ properties (Göç-Der 2011) and do not want to give them up, there is a need to consider the guards’ role in property restitution processes. However, ngos lack strategies for how this problem “could ever be resolved” (member of the Hakkari Branch of the Turkish Human Rights Association, interview, 29 September 2006). It is important to note that village guards can be a significant source of information in efforts to confront the past; for example, they can help enable healing for the families of those who disappeared by identifying the locations of mass graves.20 Although this may not necessarily lead to reconciliation between the guards and the idps themselves, it nonetheless may help to fulfill an important step in reconciliation processes: finding out the truth about what has happened. Recently, many ngos have started to discuss possible ways to disarm the guards and re-integrate them into society (see, e.g., Helsinki Yurttaşlar Derneği 2011). However, this is not an easy task since the state lacks economic resources to provide new jobs and the village guards’ low education level makes it difficult to relocate them to the more developed parts of the country. Restoring idp-Host Community Relations Most idps who have settled down in big cities do not want to return to their homes.21 However, their new lives are not easy either. In addition to financial problems, they face social exclusion and in some cases discrimination (Human Rights Association 1995, 1998; Erder 1997, 1998; Çelik 2005b). Furthermore, the Kurdish Issue, which has historically been considered a conflict between the Turkish state and the pkk, spread to another level through the interactions between idps and host communities (mostly Turks in large western cities). A study in Izmir, one of the western cities which received a high number of idps, found that the inhabitants of two isolated neighbourhoods in the city (one an affluent Turkish neighbourhood and the other a poorer neighbourhood mostly populated by Kurdish idps and migrants) had negative perceptions of each other, with Turks holding different but stronger negative views of Kurds than vice versa (Ok 2011).

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Several studies in recent years point out this increasing social polarization between Turks and Kurds (Çelik and Blum 2007; Gambetti 2007; Saraçoğlu 2009), and it is clear that because most idps are Kurds, the Kurdish Issue has become more visible to the average Turk (Ayata and Yükseker 2005). However, in the nearly twenty years since the displacement took place, the public in Turkey has paid it little attention despite its scope and seriousness (Kurban and Yeğen 2012). Moreover, as the leader of Hakkâri Mayın İzleme Grubu22 (interview, September 2006) indicates, increasing Turkish nationalism post-2004 contributed to social tensions mostly between the Kurdish idps and Turks in the big cities in western Turkey: [After 2004] the struggle against the Kurds was taken from the security forces and [implicitly] delegated to [ordinary] Turks [in the sense that some Turks in the western cities started attacking some Kurds on the belief that they are pkk members] ... The way the Kurdish Question is defined portrays Kurds as a problem. Killing on behalf of socalled patriotism was justified. I find this [trend] more dangerous than that of the earlier period because before, the violent struggle was aimed at a group – the pkk. Now, we see that everyone is being charged [as “terrorists”]. They created such a public opinion. The lack of public attention to the idp issue and increasing Turkish nationalism have serious implications for efforts to resolve the displacement situation and promote reconciliation between the idps, the state, and their fellow citizens. However, relatively few ngos have highlighted these issues. Acknowledgment, Apology, and Finding the “Truth” As stated earlier, one of the aims of the Compensation Law is “bolstering trust towards the state, rapprochement between the state and its citizens, and contributing to peace” (Official Gazette 2004). However, many ngos and idps believe that the law does not reach or even aim to increase trust or peace. Arguably, this is because: First of all, the law does not investigate how displacement took place, what happened and who instigated it ... With the village evacuations, it is known who was responsible ... There is no concern for helping idps to have peace with the state. We cannot have societal peace and

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reach social justice by paying compensation because we can reach these [goals] only by [referring to the state] acknowledging mistakes. When we talk to the [compensation] applicants, we see that especially in the cases of death, they do not want compensation. They want truth-finding and acknowledgment. There is nothing about this in the [Compensation] Law. There should be restorative justice. How would you have this? By reconciliation. (President of tohav, interview, 23 September 2006) Of course, one of the reasons for the failure to satisfy these demands historically was that the conflict was ongoing. More importantly, there was no political will to confront Turkey’s recent past or to link internal displacement to the overall Kurdish Issue. Neither the Compensation Law nor the Kurdish Opening addressed Kurdish idps’ demands specifically or the Kurdish population in general.23 Truth-telling is necessary for reconciliation at the individual and societal level because it acknowledges and validates the hurtful experiences of the past. It can also help reassure the victims of the conflict that the state will do its best not to repeat its mistakes. The official state understanding of the displacement situation (including how the state sees the reasons for the displacement, as well as the laws and regulations it passes to address its consequences) does not recognize that displacement has ethnic and historical dimensions (Ayata and Yükseker 2005; Çelik 2013). In opposition to this position, many ngos claim, “Kurdish displacement started with the history of the [Turkish] Republic, with the Dersim Law on Resettlement.24 tohav defines this displacement as Kurdish displacement” (President of tohav, interview, 23 September 2006). For these ngos, overcoming the legacies of the past requires acknowledging historical responsibilities and bringing justice to those whose citizenship rights have been violated (see Kurban et al. 2006; Kurban and Yeğen 2012). Thus, compensation without accepting guilt does not satisfy the ngos or contribute to reconciliation or, in turn, sustainable solutions to displacement. CI V I L S OC I E T Y I N TU R K E Y : P US H I NG FO R RE C ON C I L I ATI ON A N D PA RTI C I PATI ON

State officers have historically seen civil society organizations dealing with the Kurdish Issue in Turkey as enemies of the state linked to illegal organizations, while ngos have historically seen the state as authoritarian. This dichotomy manifests especially in the understanding of certain “sensitive”

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issues, such as internal displacement, and limits the role of civil society to certain functions, particularly advocacy and service delivery to idps (Çelik 2010). The most important factor affecting the parties’ willingness to engage in reconciliation is the major power asymmetry between them (Rouhana 2004). It is no surprise that historically the Turkish state has been the dominant actor in the Kurdish Issue. Its vision for the resolution of the Kurdish Issue significantly determines the future of the conflict as well as its policies toward internal displacement. However, this does not mean that civil society is ineffective in pressuring the state to reconsider its position on certain policies. csos, especially the bar associations, were successful in changing some articles of the Compensation Law and extending the deadline for applications. However, it is important to note that csos in Turkey do not typically have a broad vision of reconciliation in their plans for addressing internal displacement. They limit themselves mostly to issues of justice, truth-finding, and historical responsibility, but ignore or fail to deal with mistrust between different layers of society and the state, and issues of healing. Despite these shortcomings, civil society organizations in Turkey have played an important role in pressuring the state to include them in decision-making processes concerning Kurdish idps. Although they have not been very successful in achieving this goal, they nevertheless made this demand public. This can be considered an important contribution since it is through getting involved in the decision-making process that csos have made the international community more aware of the problems idps face. An example of their success in affecting decisions for the idp community was the Van Action Plan, which lays down government strategies to overcome the consequences of internal displacement in the city of Van, the second biggest idp-hosting city in eastern and southeastern Turkey.25 In the Van Action Plan (2006, 10), the government presented ngo support as favourable in “the fields of education, health, and income generating activities which are relevant to social and economic development.” Through this document, the state recognizes ngos as legitimate actors in certain policy areas, but it still fails to recognize their representation capacity. In fact, including ngos in the process has the potential to tell the other side of the story to the different sectors of society who do not know anything about the Kurdish displacement. This may help open up dialogue at the national and personal levels. Granted, it is only in a limited number of cases that ngos documented idps’ stories in an effort to reach out to the broader society and show that idps’ citizenship rights have been violated and that they

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suffered before and during the conflict.26 However, these activities are significant because such narratives are largely unknown to the average Turk in western parts of the country. If and when such stories are heard, public support for dialogue between different strata of the society could increase, opening up opportunities to advance reconciliation between displaced Kurds, non-displaced Turkish citizens, and the state. In recent years, some ngos in Turkey started pressuring the state to form truth and reconciliation commissions regarding certain aspects of the Kurdish Issue, including internal displacement (Kurban et al. 2006; Kurban and Yeğen 2012). They hope that these commissions may be a way to demand accountability, apology, and compensation. However, the formation of these commissions runs the risk of intensifying the conflict since society may not yet be ready to accept that their communities carried out certain human rights violations (Çandar 2011). There is also a need for csos to present the violations committed by all parties to the conflict, which they may not be willing to do due to their politicized stance in the conflict.27 Lastly, pressuring states to engage in reconciliation processes or initiate reconciliation between different strata of society requires coordination. Unfortunately, csos working on displacement not only lack coordination but also compete with each other on certain issues. For example, the members of bar associations competed over the material profit they would get by representing the idp cases in the compensation commissions (Kurban and Yeğen 2012). The csos’ varying ideological positions also prevent them from working in coordination. Therefore, while it is clear that csos may play an important role in advancing reconciliation, the complexities associated with their involvement should not be underestimated. C ON C LU S I ON

Reconciliation is a long process and a goal. Achieving even a modest degree of reconciliation requires considering the specific dynamics of different social contexts and acknowledging that peacebuilding efforts devoid of reconciliatory moves may be particularly fragile and susceptible to failure. Steps toward reconciliation include replacing fear with non-violent coexistence through facilitating basic communication across social divides, building confidence and trust, and creating empathy by revealing truths about past injustices (idea 2004, 4–5). Reconciliation attempts need to address the root causes of the conflict; ways to overcome structural inequalities in the social and political system that led to the conflict;

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and ways to prevent their recurrence, because “peaceful coexistence, trust and empathy do not develop in a sustainable way if structural injustices – political, legal and economic – remain” (idea 2004, 5). Advancing reconciliation between the Turkish state and Kurdish idps would require the state to build legitimate and representative state institutions, which would lead to respect for fundamental human rights, tolerance, peaceful coexistence, rule of law, democracy, development of a human rights culture, effective conflict resolution mechanisms, transparency, and public debate (Gibson and Gouws 1999). In such efforts, csos can play an important role in pressuring the state to move from an exclusionary, authoritarian, and non-representative position to one that is open to dialogue and receptive to various social sectors’ needs and demands. The success of such advocacy efforts, however, depends on the power relations between civil society and the state, as well as on the nature of the conflict that led to displacement. Reconciliation in communities affected by large-scale forced migration should go hand in hand with a rights-based approach to displacement. These approaches require protecting and empowering idps by including them in peace and policymaking processes and seeing them as both individuals and group members. The fusion of these approaches requires addressing group- and national-level needs (including for apologies, acknowledgment, and trust) as well as individual level needs and rights, such as the right to a remedy like compensation and public apology. The Turkish state has attempted to reduce reconciliation to simply individual compensation, while csos have pushed for recognition of the need for apologies, acknowledgment, and trust-building. A long-lasting peace and durable solutions to internal displacement require not only combining the approaches that focus on group and individual needs, but also synthesizing the state’s and csos’ efforts to address the root causes of the conflict and to overcome its consequences. Providing compensation to idps cannot advance reconciliation or durable solutions to displacement if other important issues, such as building trust across societal divides, truth-telling about human rights violations, and acknowledging past mistakes, are not dealt with by all parties to the conflict. A rights-based approach to displacement requires accountability of all parties; idps’ inclusion and representation in social and political life as well as in policymaking processes; and incorporating bystanders to support peace processes and durable solutions to displacement. As the Kurdish internal displacement case shows, failure to address any of these elements may undercut attempts to resolve conflict and enable solutions to displacement.

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notes 1 The project, when then-minister of the interior, Beşir Atalay, announced it in July 2009, was entitled the Kurdish Opening, suggesting that it was designed solely to address the Kurdish Issue. Later, it came to be referred to as the Democratic Initiative, and finally the National Union and Brotherhood Project, reflecting the loss of the focus on dealing with the causes and consequences of the Kurdish Issue. When the initiative was originally proposed, it was believed to include greater cultural rights for Kurds (excluding teaching in Kurdish), some form of local autonomy, and incentives to demobilize and reintegrate pkk fighters into society. However, the project only provided a Kurdish channel in the state-owned tv broadcasting network, changed laws dealing with rehabilitating minors involved in “terrorist acts,” and allowed the use of Kurdish in prisons. 2 Between February 2004 and spring 2007, I conducted interviews with representatives of non-governmental organizations (ngos), state officers, and idps, and observed several meetings of international organizations and ngos. The fieldwork took place in thirteen of the fourteen cities giving rise to idps, as well as in the two largest host cities in western Turkey, Ankara, and Istanbul. The interviews totalled ninety-seven, nineteen of which were with representatives from the state (generally governors or vice-governors of the ministries responsible for different aspects of the government’s response to the internally displaced), and fifty-eight of which were with leaders of civil society and representatives from the United Nations Development Programme and the European Commission in Ankara. Twenty interviews were with idps. I would like to thank MireKoç (Migration Center at Koç University) and Sabancı University for their financial support for the research. 3 In the 1990s, scholars also began to address displacement from a human security perspective (Churruca Muguruza and de la Cruz 2011). The human security approach shifts the focus from state security to protecting citizens from both direct and structural violence by providing welfare, safety, and rights protection. Achieving this goal requires demanding accountable services from duty-bearers as a matter of rights; thus, the approach emphasizes human rights. Closely associated with the rights-based approach to displacement, the human security approach emphasizes a struggle for rights to social, political, and economic development that is inclusive and participatory. Both human security and rights-based approaches focus on the outcome and process of development and protection; these approaches involve a strong focus on power inequalities and discrimination, and require participation,

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non-discrimination, and accountability of actors for sustainable development (iasc 2010). For additional perspectives on this issue, see Vidal López (this volume). It is important to recognize that even if a rights-based approach, including support for reconciliation initiatives, is comprehensively implemented, reconciliation itself may still be elusive as conflicted parties may not necessarily want to reconcile. If the rights of displaced persons and other groups are not respected, reconciliation is all the more likely to be thwarted. Although “Kurdish Question” is the most commonly used terminology to refer to the conflict, recently it has been replaced by a more politically correct term, “Kurdish Issue,” since the former sees Kurds as the source of the problem without recognizing the state’s responsibility. Bekir Sıtkı Dağ, Department of Strategy Development, Ministry of Interior (moi), Presentation at the “Support to the Development of an idp Program in Turkey Project” workshop, Ankara, 23 February 2006 (hereafter undp Workshop). See Report of the Representative of the Secretary-General on internally displaced persons, Mr Francis Deng, submitted pursuant to Commission on Human Rights resolution 2002/56, E/CN.4/2003/86/Add.2, 27 November 2002. Following Deng’s recommendation, the government asked Hacettepe University’s Institute of Population Studies (Turkey) to undertake a comprehensive survey of the idps. The study was done between December 2004 and June 2006 from a representative sample of idps in fourteen internal displacement producing cities, ten receiving cities, and a sample of fifty-seven cities which neither produced nor received idps. The number of idps in the quantitative sample was 7,300 (hünee 2006). The Turkish Economic and Social Studies Foundation, for example, insistently uses the term “yerinden edilme,” arguing that this is in line with the interpretation of Guiding Principle 6, para. 1, offered in the Annotations to Guiding Principles on Internal Displacement (Kurban et al. 2006b) because displacement has mostly been undertaken arbitrarily by state actors. Law No. 5233 appeared in the Official Gazette on 17 July 2004 (No. 25,535), and entered into force on 4 October 2004. For a detailed analysis of the principles and the flaws in the application of the law, see Dilek Kurban et al. (2006a, 2006b). Compensation Law, preamble. For a detailed criticism of these policies, see Ayata and Yükseker (2005). Even though access to some villages is prevented there were some successful

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returns, especially between 2002 and 2007. According to the Ministry of Interior’s website, 187,861 idps have returned to their villages. However, it is unknown whether these numbers reflect permanent returns, and the number of those who have been re-displaced especially after the re-escalation of violence in the post-2007 period. For further discussion of the potential role of transitional justice processes in advancing reconciliation and restoring relations between the state and its citizens, particularly in the context of the pursuit of durable solutions to displacement, see Duthie (this volume). Most scholars accept that the root cause of the Kurdish Issue is the state’s inability and unwillingness to grant cultural rights to Kurds (e.g., Kramer 2000; Yeğen 2007; Çelik 2010). Therefore, policies addressing the causes of conflict require granting at least cultural rights and broadening the political system to give more representation to the Kurdish population. However, some Kurdish political actors, such as the pro-Kurdish Barış ve Demokrasi Partisi (bdp, Peace and democracy party) also ask for some form of decentralization, which they call “democratic autonomy,” in the Kurdishpopulated regions. Toward the end of the 1990s, the European Court of Human Rights started to accept petitions by idps who were evicted from their villages or who were not permitted to return to them, and issued a number of rulings ordering Turkey to pay compensation to the displaced. Many ngos argue that the Compensation Law was a result of the increasing financial burden these cases placed on the Turkish state, as through this law the state would pay much less and would also save face in the international arena. In fact, the preamble of the Compensation Law states that the law was prepared “with the aim of compensating quickly and via friendly settlement people who incurred damages as a result of terrorism, or during the fight against terrorism, or from measures taken to fight against terrorism, without their having to apply for legal remedies, and to ensure that only those whose applications are not resolved through friendly settlements apply to the European Court of Human Rights and to prevent the use of compensation as a means of unjust enrichment” (Official Gazette 2004). Village guards are locally recruited civilians armed and paid by the state to fight against the pkk. According to the Ministry of the Interior, there were 23,000 voluntary and 48,000 provisional village guards in the region as of September 2009 (Milliyet 2009). According to the statistics gathered in 2006, 5,139 provisional village guards “committed crimes” between 1985 and mid2006. The national media have carried various stories in recent years about

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village guards’ criminal activities such as the abduction of women, aggravated assault, and forming armed gangs (Kurban et al. 2006b). Diyarbakır Human Rights Organization (informal correspondence, 11 March 2014) argues that some mass graves were exhumed with the help of village guards, who identified their locations. However, for security reasons, the names of the village guards and the location of the graves have been kept anonymous. For further discussion of reconciliation between displaced persons and host community members, see Celestina (this volume). Hakkâri Mayın İzleme Grubu is an informal network of several lawyers and human rights activists, formed in 2004 in Hakkâri, a city on the border of Turkey, Iran, and Iraq. Its main aims are to raise awareness of the large number of landmines in the city, to profile people who suffered from landmines, and to provide them with legal and psychological help. Recently, there have been more academic and journalistic accounts analyzing Kurdish demands. These studies show that although Kurds in Turkey may have highly varied demands, the majority of Kurds want linguistic, cultural, and political rights as a group, which can come with constitutional and legal reforms, some sort of regional autonomy, disarmament of the pkk, securing a place in society for the Kurds, and general political amnesty (tesev 2008; Yeğen 2009; Milliyet 2012). On 21 June 1934, the Turkish parliament passed the Law on Resettlement (Law No. 2510), which regulated the settlement of immigrants and resettlement within the country. The law divided Turkey into three zones according to the population’s adherence to “Turkishness.” The first zone consisted of localities where the population possessed non-Turkish elements but where the Turkish culture was desired (as a result, immigrants from the former Ottoman provinces who had Turkish origins were settled in these localities). The second zone was made up of regions reserved for people who were expected to assimilate into Turkish culture. The third zone consisted of regions that were to be totally evacuated (the inhabitants of these regions were to be settled in the first two zones) (Tekeli 1994; McDowall 1997). The law also aimed to break down the structure of potentially powerful tribes and abrogated tribal property rights. Tekeli (1994) reports that 25,831 people from 5,074 households were transferred from fifteen cities in eastern and southeastern Anatolia to western Anatolia. However, many households that were transferred to other provinces in the 1930s returned to their homes in the 1940s, as Turkey moved to a multiparty regime in 1947 and the obligation of the transferred people to stay where they were settled was lifted.

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25 In December 2004, the government formed a commission to formulate a strategy document outlining its policy on idps. The framework for the government strategy was issued by the Council of Ministers as a special Decision of Principle on 17 August 2005. Following this framework for action, the government launched an action plan for service delivery to the idps in Van (Van Action Plan 2006). The plan not only signifies a change in the Turkish state’s position to take into account the international community’s recommendations, but is also an important tool to analyze the Turkish state’s actions in practice. 26 Exceptions are Göç-Der (2008a) and some documentaries made by independent groups. 27 Since many Kurdish political parties have been closed down by the Constitutional Court in the last fifteen years, it is common to come across politicized ngos that act more like political parties than ngos (Çelik 2010).

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10 Can Reconciliation Mechanisms in Postconflict Settings Further Divide Communities? The Case of Lebanon NANCY MAROU N

The Lebanese civil war erupted in 1975 and continued until 1990, driven by internal factors, including power struggles between Lebanese religious communities, and external factors, principally the Arab-Israeli conflict. Lebanon’s four million citizens are clustered into eighteen officially recognized religious groups (ReachMass 2007; Figuie 1996). Violent conflict between the major religious communities fragmented the country, and dozens of militias emerged on the basis of religious affiliation. During the conflict, warring groups divided and subdivided Lebanon with roadblocks and checkpoints that served as internal borders. Splits among religious communities were so deep and powerful that public institutions such as schools, universities, hospitals, and community services were segregated by religious affiliations, entrenching geographical and psycho-sociological divisions. The war engendered a range of social, psycho-sociological, economic, infrastructure, and political problems, including a major internal displacement situation. The Lebanese civil war ended with the signing of the 1990 Taëf Agreement, officially known as the Document of National Accord. This agreement stopped the fighting and affirmed the displaced populations’ return as the “necessary condition for permanent reconciliation and sustainable peace” (Assaf and El-Fil 2000). It resulted in a system of powersharing between most of the former warlords who had participated in the civil war. Although many of the government’s leaders were complicit in the violence that forced the displaced from their homes, it nonetheless com-

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mitted itself to supporting reconciliation and the return of the displaced populations to their areas of origins throughout Lebanon; this was regarded as a way to reverse one of the consequences of the war. The Ministry of Displaced (mod) was the governmental body in charge of achieving this return, in large part by implementing the official reconciliation process at the local and regional levels.1 In this work the ministry was guided by a national strategy for the return of the displaced, which addressed physical reconstruction, “official reconciliation,” and financial compensation for physical damages and human losses. The strategy focused on rehabilitating and reconstructing infrastructure and housing, but official reconciliation was seen as a fundamental step in this process. The official reconciliation process was important to the government; the completion of the official process was required before returns and postconflict interventions (such as the provision of compensation and reconstruction) could begin. The government suggests that the official reconciliation process was based on a traditional ceremonial process, which some tribes in rural areas of Lebanon may still follow (mod 2005). However, the implementation of this ceremonial process did not stimulate or benefit meaningful inter-religious involvement or interaction, and ultimately did not lead to a smooth and successful return. Inter-religious involvement did enable a degree of “effective reconciliation” in post-conflict communities, especially given that in many cases, the various populations “felt animosity, hostility and spite” toward one another (mod 2005).2 Both physical and psycho-sociological interventions were necessary to enable the displaced populations’ return (Irani 1997, 2000), but the national strategy for this return was designed to attend neither to the socio-economic hardships produced by the war, nor to the psycho-sociological implications of displacement on inter-religious relationships. In this chapter, I address Lebanon’s “official reconciliation” mechanism and its relationship with efforts to resolve displacement in post-war Lebanon. I provide a brief introduction to the internal displacement situation generated by the Lebanese civil war, and then assess the implementation of the official reconciliation mechanism, focusing in particular on experiences in the selected research site, Mura. I analyze the outcome of the official reconciliation process in Mura, and the perceptions of civil society members and development practitioners involved in its implementation. While some local groups supported the process, I argue that overall the Lebanese official reconciliation process failed to promote effective reconciliation and inter-religious involvement. It is perhaps unsurprising that such a government-mandated, formally imposed process failed to stimu-

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late effective local-level reconciliation and open up viable opportunities for displaced persons from divided communities to return home. Yet important insights may be drawn from this experience, despite its many shortcomings. This chapter is based on a thirty-two-month-long ethnographic study conducted in phases between 1998 and 2005 in the Mount Lebanon region. I collected the data through non-participant observation (informal meetings, field visits and document analysis) and twenty-three in-depth interviews with civil society representatives and development practitioners involved in implementing the national return strategy (Maroun 2008). The interviewees included members of grassroots organizations, elected local officials, and employees of un agencies and non-governmental organizations (ngos). I NT E R NA L D IS P L AC E M E N T I N THE L E B A N E S E C I V I L WA R

Internal displacement in Lebanon affected almost a third of the population, including both Christians and Muslims. Overall, an estimated total of 810,000 persons were internally displaced between 1975 and 1990 (Pedersen 2003, 19; Norwegian Refugee Council 2003). People were forced to leave their homes and move to other areas inside the country, or to flee Lebanon as refugees. Some suffered terrible massacres based on their religious affiliations. Some authors (Rogan 2001; Kingston and Spears 2004) describe these massacres and the displacement that resulted from them as ethnic cleansing, although this is generally not how these violations are discussed at the local and national levels. Pre-war Lebanon was traditionally viewed as a multi-confessional (multi-religious) (Dubar 1974) society, and many regions had inhabitants from a mix of religious backgrounds. However, the war led to the “sorting” of the majority of Lebanese citizens on the basis of religious affiliation as the displaced sought shelter in religiously homogeneous areas. Mount Lebanon, the focus of this study, was the region most affected by displacement. It is a multi-religious region located in the centre of Lebanon, surrounding the capital city of Beirut. Of all internally displaced Lebanese, 62 per cent came from Mount Lebanon, while 52.7 per cent were displaced to Mount Lebanon (undp 1997). In this region, massacres and atrocities were committed between Christian and Druze militias.3 Christians who were displaced in the 1980s from their own towns and cities in Mount Lebanon fled to predominantly Christian areas elsewhere (cia 2014b).4

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In this chapter, I focus on a specific research site in Mount Lebanon. It is a typical town for the area, and I refer to it by the pseudonym “Mura” for confidentiality purposes. Mura is characterized by multi-confessionalism, and includes Druze and Christian citizens. The Council of Ministers classified it as a “reconciliation town” because it was one of the towns most affected by the war, and experienced terrible massacres. Christians displaced from Mura by the violence settled in predominantly Christian areas of Lebanon, mainly in Beirut and its suburbs. They typically sought shelter in crowded areas, and lived either free of charge with relatives or friends or in public buildings such as schools, universities, or stadiums. The displaced Christians relied on relief aid, as most left their homes without money or belongings. Many could not afford food and other necessities. Eventually, some internally displaced persons (idps) illegally occupied confiscated houses, while others rented. Several years post-displacement, 70 per cent of the idps were still living at a subsistence level (Norwegian Refugee Council 2003). I MP L E ME NTAT I O N OF TH E OFF I C I A L R E C ON C I L I ATI ON M E C HA N I S M I N L E B A N ON

The mod was the governmental body in charge of achieving “official reconciliation” at the local level by implementing a prescribed ceremonial process. This official reconciliation aimed to create a “favorable social climate for successful return in areas that witnessed fierce fighting” (mod 1998, 25). It was seen as crucial to the return process, but was intended to take place only in towns the Council of Ministers classified as reconciliation towns. Those towns were characterized by their pre-war multi-religiosity, by being completely emptied of one religious community through displacement, by having experienced fierce massacres with many victims, and by complex political situations. In Mount Lebanon, out of the 171 towns that experienced large-scale displacement, thirty-two (19 per cent) were designated as reconciliation towns (mod 1998). In these communities, the return process was not to begin until the official reconciliation mechanism had been implemented. Displaced families from reconciliation towns were not allowed to return without government approval, particularly from the mod, at the conclusion of the reconciliation process. Such approval was usually based on political will and safe conditions in the specific area, as well as on the availability of funds for reconstruction and compensation for physical and human losses.

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According to the mod, the official reconciliation mechanism had to unfold according to pure traditions. It “may be a simulation of a tradition called ‘Sheikh ElSolh,’ which in itself may have its own jurisprudence,” and which, the government claims, “is still being followed by some of the Bedouins until this day” (mod 2005). The Sheikh ElSolh (senior reconciling chief) is traditionally a tribe’s most senior and respected man, to whom both conflicted groups refer in any conflict situation. He listens to both groups, and then makes the decision he deems best; both groups have to abide by his decisions. The reconciliation mechanism, as modernized and organized by the mod, was applied through a series of meetings. It required the creation of two committees in each town, or one for each religious group: a committee for the displaced (i.e., in the case of Mura, the Christians) and a committee for the stayees (i.e., the Druze). Typically, committee members were selected from local elites or leaders. The community nominated them during a general meeting to which all the members of a particular religious group were invited. This nomination followed several principles: the representation of the various families in each town; the representation of the official or non-official local authorities; the nominees’ desire to achieve reconciliation; their capacity to influence public opinion; and the consent of their own and other religious groups (Osmat 1999). Committee members were usually senior men who did not participate in the armed conflict, and who mod officials informally approved. They were expected to serve on the committee until the ministry considered its mission accomplished. These committees served until 2002, the date of the first post-conflict local municipal elections, at which point the municipalities took over the committees’ tasks. The committees’ tasks were to: “Help create a restful political situation for successful return; resolve local disputes through meetings between the displaced and stayees; create a serene social climate for return; help carry out and promote reconciliation; establish the concept of common existence; provide assistance to the displaced to cover all that is required for the consolidation of their return home and their re-establishment in their villages and areas; [and] participate substantially and effectively in the execution of the return operation” (mod 1998, 20).5 In each reconciliation town, both committees held several meetings, first separately and then together, in which they aimed to identify their town’s particular problems and possible solutions. In some cases, they brought offenders’ and victims’ families together, in the presence of com-

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mittee members, in an effort to resolve the conflict. This mechanism was sponsored by the mod and took place at its offices. Committee members discussed the restitution of houses, agricultural land, and institutions, as well as the illegal occupation of private as well as public properties (e.g., public places, real estates, worship places, cemeteries) that all local citizens were supposed to share. The committees also discussed compensation for the victims of the war, including the wounded and the handicapped. Ideally, this reconciliation mechanism resulted in acceptable settlements, for both groups, in the form of monetary compensation (Irani and Funk 2000). The Central Fund for the Displaced, a governmental fund, was to pay the agreed upon monetary compensation to the families of the victims according to the availability of funds. The maximum level of compensation per victim was set at thirty million Lebanese pounds (US$20,000) (mod 1998). Typically, the reconciliation mechanism in a specific town ended once all parties agreed that settlements under specific terms were possible. The mod claimed that this mechanism was successful whenever a reconciliation agreement was signed and followed by a “reconciliation ceremony.” These ceremonies were sponsored by the president of the Republic, the prime minister, and the mod, and attended by representatives of these institutions as well as the religious authorities of groups that were in conflict in that particular area, committee members, and other citizens (Osmat 1999). It was only after the official reconciliation ceremony that the mod approved the beginning of returns and started the physical reconstruction process in that particular town. Reconciliation agreements varied between areas, as each one was negotiated at the local level and focused on local disputes. In general, enabling at least a minimum level of pre-return reconciliation was seen as an important component of prompt and successful returns. Many of the concerned parties had an interest in getting agreements signed as quickly as possible so that the physical reconstruction process could proceed. This did not necessarily achieve deeper reconciliation. From the perspective of many if not all local participants in the process, the practice was a pure formality to satisfy the minimum requirements to access compensation and reconstruction support. While it is unsurprising that such a formal, bureaucratic process did not translate into meaningful reconciliation for many individuals, it remains unclear precisely why the government adopted this approach. By no means did it enable effective reconciliation and the repair of fractured relationships between members of different religious groups.

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P RO C E S S OF TH E OFF I C I A L R E C ON C I L I ATI ON M E C HA N I S M I N L E B A N ON

step 1: creation of two committees • Committee for the displaced • Committee for the stayees step 2: series of committees meetings (separate, then integrated) • Meetings aim to identify problems and solutions (i.e., acceptable settlements for both groups in the form of monetary compensation; owners’ recuperation of lands) step 3: reconciliation agreement signed • Reconciliation mechanism concludes once all parties agree on the settlement • Reconciliation process claimed a “success” every time a reconciliation agreement is signed step 4: reconciliation ceremony • Sponsored by the president of the Republic, the prime minister, and the minister of displaced • Attended by all concerned religious authorities, committee members, and citizens step 5: post-ceremony reconstruction process • Government begins physical reconstruction process and pays compensation according to availability of funds

To begin, the traditional and ceremonial reconciliation mechanism in Mura selected the two committees: the stayee committee involving Druze local leaders, and the displaced committee involving Christian local leaders. The members of the stayee committee were selected in collaboration with the mod officials under the direct supervision of Walid Jumblatt, the Druze national and regional political leader and the president of the Druze political party, the Progressive Socialist Party (psp), in Lebanon.6 This selection was straightforward, in that most of the Druze community was clustered in the Mount Lebanon area, and politically

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supported Jumblatt, such that they would follow his decisions on the committee’s composition. The selection of the displaced committee members was much more complex because the displaced community was spread over a large geographic area, complicating communication between its members. Furthermore, unlike other religious communities in Lebanon, the Christians did not have a clear set of national and regional political leaders. Therefore, as in other towns extensively affected by the Christians’ internal displacement, the selection of the committee members in Mura depended on the choices of active church members, as they were the most connected to the community through an informal social network. This informal network had three main goals: to preserve contacts among the displaced community members; to diffuse obituary notices; and to announce memorial ceremonies when a community member died. But even with landlines and mobile phones, it was difficult for this social network to reach Mura’s entire Christian community, which was widely dispersed. Indeed, in order to move forward with the process, Jumblatt contacted the archbishop in charge of that area, who delegated a priest to form a committee and prepare for the return. The priest collaborated with the active members of the local church, and invited the Christian community to a general meeting. He suggested a slate of committee members from the town’s large families, and the community adopted his proposal despite some disagreements. Two members were later substituted to resolve those disagreements; one of the substituting members was subsequently replaced, as he did not meet with Jumblatt’s approval. The result was a committee of displaced persons composed of nine Christians respected amongst both the Christian and the Druze communities; some were recognized as pacifists while others were seen as Jumblattis.7 However, they were not representative of the whole community or of the range of reconciliation perspectives held by the various Christian political groups. Thus, although Mura’s reconciliation process was supposed to embrace both religious communities, including all their segments, it did not. In Mount Lebanon, Christian participants in the reconciliation and return process were typically older pacifists and/or Jumblatti men. The non-participants were typically young people associated with one of two political movements marginalized from the national political life: the Free Patriotic Movement (fpm) and the Lebanese Forces party (lf). These young people’s participation in the reconciliation process was sought out neither nationally nor locally. The fpm represented largely young Christians whose main goal was the liberation of Lebanon from the Syrian

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occupation. Its leader was exiled to France for fifteen years, and returned to Lebanon in May 2005. The lf was the Christian militia that fought the psp in the aftermath of the 1982 Israeli invasion of Lebanon. Its leader was imprisoned in 1994 for eleven years and released in July 2005. Neither fpm nor lf members participated in the displaced committees. In Mura, the non-participants were mostly from lf affiliates, and were blamed by their Christian co-citizens for their involvement in the conflict. During the reconciliation process, both committees met numerous times, first independently and then jointly. Both had a tangible and intangible role to play in the reconciliation process. First, they adopted a moral position in favour of reconciliation in order to ease the tensions between the communities. More concretely, they coordinated between the affected populations and the governmental and public institutions to facilitate the compensation process and settle disputes over lands, agricultural roads, and housing matters (including the repair, rehabilitation, and reconstruction of destroyed houses, as well as the evacuation of illegal occupants). They were also in charge of making decisions about compensation for the families of those killed during the conflict. Mura saw additional disputes over two pieces of land owned by Christian citizens and used after their displacement by members of the Druze community without the Christian landowners’ approval. The first dispute unfolded over a piece of land on which there had been a residential building. After the displacement of Mura’s Christian population, the Druze community destroyed both the residential building and the neighbouring municipality building to construct a Community House. The Community House was a functional community centre built and managed by the Druze community and used for diverse social activities including funerals and wakes, religious meetings, and political meetings. Although at the time this research was conducted it was the only centre for public activities available in Mura, it was associated exclusively with the Druze community. The Christian community was in the process of building a church including a large hall, and was already using it for social activities even though it was unfinished. The second dispute unfolded over a property located at the entrance to the town. After the Christian landowner’s displacement and without approval, the Druze community used this piece of land to build a memorial statute for Mura’s Druze martyrs. During the reconciliation process, the government compensated the owners of both pieces of land, yet the appropriateness of using the land for such “political” purposes remained questionable for the members of Mura’s Christian community.

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Regardless of persistent tensions associated with these disputes, by the end of the 1990s the government declared that official reconciliation had been achieved in Mura. By late 2005, more than five years after the official reconciliation process concluded, these disputes continued to have considerable impacts on Mura’s civic life. Christians who did not participate in the reconciliation process were dissatisfied with how the disputes were handled. They refused to participate in any events at the Community House because of its Druze identity, and also refused to have any civic engagement with the Druze community, such as by voting or by expressing condolences on the death of family members and congratulations on marriages and births.8 Their stance expressed their disagreement regarding their exclusion from the dispute resolution process. In fact, prior to 2004, these individuals did not participate in any decisionmaking body at the local level, such as the municipality (an elected council). The non-participation of various members of the Christian community in the official reconciliation process reflected the marginalization and alienation they experienced at the national level, and the non-acceptance of their viewpoints at the local level by members of the Druze community. Yet 2004 marked the beginning of a new era for many of the “nonparticipant” Christian lf supporters. At this time, the lf established a new national political strategy and altered its national alliances, which had major local impacts in Mura. As a result of these changes, Jumblatt’s party ran in the 2004 municipal election in Mura in an alliance with the lf. Murians in general, and Christians in particular, neither fully understood nor accepted this surprising, sudden, and unexplained change of alliances. As a result of this shift, pro-Jumblatt Christians, many of whom had supported or been involved in the official reconciliation process, have been excluded from local and national political alliances since 2004, while Christians who opposed or did not participate in the official reconciliation process have become Jumblatt’s political allies. Although these political changes occurred after the completion of the official reconciliation process in Mura, they nonetheless affected its longer-term outcomes. O UTC O ME S O F THE OFF I C I A L R E C ON C I L I ATI ON P ROC E S S I N M U R A

Mura, as a reconciliation town, was one of the main targets of interventions from the mod, international development agencies, and ngos. The official reconciliation process was completed and the official decision to begin

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Table 10.1 Returns to Mura, July 2005 Housing Units Pre-displacement Druze

Christians

Displaced Families in 1983

350

200

200

Families Who Reclaimed Their Houses

Families Who Returned to Live in Mura

170*

25

* Given population growth (1983–2005), the 170 families who reclaimed their homes represent a relatively small percentage of the number of Christian families with links to Mura as of 2005 (MOD and UN-RSRD 2005).

returns to Mura was made in the second half of the 1990s. However, the return rate in Mura was only 13 per cent (twenty-five of the 200 families displaced from Mura returned to live there by 2005) (see table 10.1), compared to the average return rate of 38 per cent for the whole Mount Lebanon area (mod and un-rsrd 2005). Given the long period of time that had elapsed since the Christian families were displaced from Mura in 1982, the decision to focus on return as the primary approach to resolving the displacement situation may have set the process up for failure. Many members of the displaced community had already established new lives for themselves elsewhere. Consequently, Mura’s idps had different goals in reclaiming their properties. Some wanted to return to their home areas in order to use their properties as summer houses. Others simply wanted to restore the rights they had lost during their displacement. This variation in motivations may explain the gap between the number of families who repossessed their homes (170 families) and the number who actually returned to live in Mura, typically for weekends and seasonally (twenty-five families) (see table 10.1). Many of the Christian families who repossessed their houses had to actively reclaim them from Druze neighbours who occupied them after the displacement. Among the twenty-five Christian families who returned or relocated to Mura, four were younger families with children. Effectively, housing difficulties in the cities where they had settled drove their decision to return. The other returnee families consisted of elderly individuals or couples. The changes in political alliances described above, in combination with unresolved grievances, created further anger and resentment, especially among the Christian community. Many participants in the official reconciliation and return processes adopted “us versus them” mentalities. I have developed a classification of the range of groups and attitudes that

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Table 10.2 Comparative description of four categories of citizens of Mura Reconcilers druze

Non-reconcilers christian

druze

christian

participation in fighting Yes, some during civil war 9

No

Data not available

Yes, some

involvement in civic life Extensive

Extensive

Limited

Rare post-2004

Development Peaceful civic Equal involvement benefits between Druze and Christian communities

Rights and decisionmaking powers

main concern

emerged in Mura (see table 10.2). This classification suggests that Mura’s citizens fell into four main groups: Druze reconcilers, Christian reconcilers, Druze non-reconcilers, and Christian non-reconcilers. While there was considerable variation within each category, members of each often shared similar backgrounds, levels of involvement in civic life, and primary concerns. Various members of the Christian reconciler group had been actively involved in the official reconciliation process. The Christian reconcilers considered reconciliation to have taken place and reported that they accepted the other religious group. They had been involved in civic life since the official reconciliation process and were apparently on good terms with the Druze community. They proudly discussed their involvement in the reconciliation process and considered Jumblatt to be their political leader, even though the new alliance established in 2004 excluded them. Other groups referred to them as Christian Jumblattis. Their main concern was the success of the reconciliation process and ensuring continued, peaceful Christian civic involvement with the Druze. They were highly critical of the Christian non-reconcilers for their opposition to reconciliation and civic involvement with the Druze, and were, theoretically, the most likely to return to and live in Mura. The Christian non-reconcilers were skeptical about the return and reconciliation processes, and did not believe that any real reconciliation had actually taken place. They regarded the official reconciliation process as no more than an agreement between politicians that did not include all

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Lebanese groups and perspectives. They believed that the official reconciliation process did not appropriately address the events of the war and their consequences, and were concerned that the return and reconciliation processes put the displaced and stayees (many of whom occupied displaced families’ houses and lands) in competition with one another for the limited compensation available.10 They regarded the process as a transaction or equation in which, for example, particular amounts of money would be provided as compensation for giving up houses that others had seized. They described themselves as “a group of Christians who want to return to their town with dignity.” They felt proud that they would not reconcile with their neighbours before “having all their rights,” and considered the Christian reconcilers to be “without dignity.” They claimed to represent the Christian community’s best interests and indicated that they were committed to improving their situation, specifically by restoring their rights. In seeking to restore their rights, Christian non-reconcilers in Mura were focusing on getting back their lost properties and resolving conflicting issues. For example, as one indicated during an interview with me in 2005: The issue is a disagreement in opinion regarding the method of returning and how to deal with Druze. We tell them that we must reveal our rights. If I have a problem, I have to say that I have a problem in such. They are behaving as if we don’t have any problem. We’re walking in a way of opposition, while they are walking in a way that we’re done and don’t have any problem. In their opinion, nothing could happen more than what did. They argue that there were only two options: either not returning, or returning with what is available. In our opinion, we say no: either we return as we should, or we won’t ... Our disagreement is not political ... Our disagreement is the orientation in the village issues, how to solve the village problems: Do we see the problem and close our eyes, or we say I’m in pain” if I’m in pain. That’s the issue ... The current situation is working well for them [Christian reconcilers]; they don’t have any demands. We do. We have demands that we’re trying to address, one after the other. Once we’re done, all of us will not have any problems anymore. The situation will be better. The Druze reconcilers were the Druze group that held power locally. They were Jumblattis and actively involved in Mura’s civic life. From their perspective, the reconciliation process was largely successful, and they

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believed that Mura could easily be a multi-religious town as it was before the displacement. They were proud of their friendship with Christian reconcilers. However, they did not sympathize with Christian non-reconcilers and neither accepted nor understood regarding their retreat from the town’s civic life, and in particular their non-involvement in wakes. Reconciling with the Christians and supporting their return was one of their priorities because they saw these steps as critical to reviving and effectively developing Mura. A Druze reconciler who was a member of a grassroots organization, expressed this perspective in an interview with me: “From our side there’s a high acceptance to them [Christians], because Mura is unable to live with only one section, but with both the Christian and the Druze sections, in order to have reconstruction and to have variations in ideas. We do not want and will not accept that Mura lives isolated and lonely. We want interactions with our brothers the Christians.” Another active Druze reconciler who belonged to several local organizations echoed this perspective and drew from her experience to emphasize the importance of inter-religious involvement in the return and reconstruction process for donors, international development agencies, and ngos. Indeed, for these actors, reconciliation and inter-religious involvement was essential to fund or implement projects. As the active Druze reconciler noted: “Participation of all community sections [religious and political] is a condition for development in the beginning of a project, stated by the funding organization. Later, the project is politicized by local people and its benefits are channeled towards one part of the community. Therefore, the other part refuses to participate. As a result, the organization gets discouraged and stops the project.” The Druze non-reconcilers believed that even if the Christians had been displaced, lost their homes and lands, and experienced hardships, their current economic and social situation was still much better than that of the Druze in Mura. Many believed that by having the “chance” to live in the city, the displaced Christians were able to build much better lives than those they would have had if they had not been displaced. For the most part, the Druze only discussed this position themselves, as it contradicts the public position that the Druze community and its leader, Walid Jumblatt, have held since the end of the war. (Some Druze non-reconcilers discussed this position with me, but asked me not to record large segments of those interviews.)

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P E RC E P T IO N S OF THE OF F I C I A L R E C ON C I L I ATI ON P ROC E S S

Perceptions of the official reconciliation process in Mura varied. Generally, reconcilers saw it as an efficient and essential step in the return process that had positive impacts on everyday inter-religious tolerance and coexistence. However, non-reconcilers had much more negative perceptions of the process, with variations evident between Christians and Druze. They suggested that the official reconciliation process did not represent both communities; did not target them equally or equitably; and did not provide the displaced with dignity, rights, or safety. Some suggested that the reconciliation process had not yet really taken place, and that it did not earn the displaced community’s confidence.11 The Process Was Not Representative Some study participants suggested that the official reconciliation mechanism adequately represented neither the displaced nor the Druze communities. For example, Christian non-reconcilers felt excluded from the process from the outset, as they could not serve as displaced committee members. This is in part because the selection process sought Jumblatt’s approval. Since the committees were established before the psp-lf alliance in 2004, Christian lf supporters did not generally meet Jumblatt’s approval to join displaced committees. Although this excluded group comprised the largest segment of the displaced community, the official reconciliation took place without it anyway. Its exclusion from the process meant that it did not agree on the settlements reached regarding compensation for the families of victims, land disputes, and other property issues. Similarly, Druze non-reconcilers asserted that participation in the official reconciliation mechanism was restricted to a single political party within the Druze community; opponents of this party were marginalized. They argued that all Druze should benefit from the reconciliation process, rather than only those who were politically affiliated with the main Druze leader. The Process Did Not Target Christians and Druze Equally or Equitably Each religious community saw the official reconciliation mechanism as unequal and/or inequitable. Members of the Christian community, mainly the non-reconcilers, complained that the process did not restore them

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to equality with their Druze co-citizens. They complained to the government as well as to the different development agencies and ngos involved in implementing programs in Mura intended to support the return and reconciliation process. They expected government-allocated services and funds provided to support the return to target them, and were dissatisfied when members of the Druze community also received support. From their side, Druze non-reconcilers saw the reconciliation mechanism as socially unequal and inequitable. They argued that all the communities in Mura, rather than just some of them, should benefit from compensation and reconstruction support. They claimed that reconciliation could only occur when all segments of both the Christians and Druze communities share benefits and hardships equally. This viewpoint arose after the official decision to begin the idps’ return to Mura was made, as international development agencies and ngos got involved to assist and support the returnees. In the beginning, these actors’ strategies and resources in the Mount Lebanon area only targeted idps, with the aim of assisting Christians to return and resettle. This targeted strategy led many Druze to feel disadvantaged, marginalized, and resentful – sentiments that were exacerbated by a national economic recession. A Druze non-reconciler commented during an interview: Participation has the meaning of sharing benefits ... All people should benefit and not part of them ... Here we, Christians and Druze, have neighboring agricultural lands ... if we both received the same fertilizers, we would have both benefited. But the problem occurred when he received fertilizers and I did not. At such time, if he received one kilogram of fertilizers, I will say that he received one ton. That’s where differentiation occurred between the two sections. Besides, Druze non-reconcilers discussed the socio-economic benefits Christians achieved by leaving Mura, during the forced displacement, to go to the city. They claimed that the Druze who remained in their towns should benefit from all projects and services, even if those were aimed at the return of the displaced. An elderly Druze non-reconciler who experienced first hand the displacement period noted: “It is true that I stayed here and he [a Christian] left. Nowadays I envy him because he was displaced. Because he was displaced, he benefited. He was able to make a family and build a house. It’s true that he was displaced and left his town, but if he stayed in his town, his situation would have been like mine. Now his

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situation is better than mine which makes me envy him because he was displaced. This is to say that both of us were highly affected.” These Druze non-reconcilers viewpoints were not publicly discussed in Mura. However, they were commonly shared within the Druze community. Development practitioners encountered these perceptions of alienation and resentment and concluded that they were embedded in persistent divisions between the religious communities, exacerbated by the exclusion of the Druze to various forms of reconstruction assistance. Consequently, the organizations changed their strategies from only targeting the displaced communities, to providing support for both religious communities. The Process Did Not Give the Displaced Dignity, Rights, and Safety Many Christian non-reconcilers felt that the official reconciliation mechanism could not preserve their dignity or ensure their rights and safety upon return, even though physical and psychological security and the attainment of rights lost during displacement were priority concerns. They explained that only when safety and rights were attained would Christians have the same level of dignity as the Druze. They regarded equally dignity as a precondition for reconciliation. As one Christian from Mura noted: The priority, I think, is for the safety; so when someone comes to [Mura], he must feel psychologically comfortable. Personally I do not have a problem, but as a Christian society, no, I do not think it is stable and feels safe, and maybe it will always be like that. I will tell you why: As long as I am not able to express my opinion in all simplicity, this means that I am not comfortable. When expressing my opinion will require a high level of braveness, this means that the situation is not correct. Lots of people do not have the braveness to express their opinions; this means that they fear. Many Christian non-reconcilers blamed the displaced committee members for submissively yielding Christians’ rights and for being continuously ready to make such concessions. Some participants explained that they recently became involved in local politics and civic life in Mura in order to promote “return with dignity” and “respected return.” They were not convinced that people’s right to return had been dealt with

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appropriately, as the perspectives of two young Christian non-reconcilers illustrate: We disagreed with the group of people who handled the return process in a way that did not return minimum rights to the people. The return was dissatisfactory and frustrating for most of the people; yet this group accepted it as a fact and returned. Even after the return, we felt that there is negligence towards returnees. A big part of the Murian [population] has received only the first payment for rehabilitation and reconstruction since 1997. There are people whose houses are destroyed and did not get reconstruction payments. But each rehabilitation unit for a Christian was equated with four units for the Druze. We’re not aiming [for] the impossible, we’re asking for our rights. We’re not putting sticks in the wheels12 or so ... We will not stay suppressed ... Why do we always have to be followers and under their [Druze] control? The Reconciliation Process Has Not Yet Really Taken Place Some Christian non-reconcilers, who made up the majority of the displaced community, were not even aware that there had been attempts to reconcile and that an official reconciliation had taken place. Others who knew about the official reconciliation process declared that real reconciliation had not yet been achieved, and was unlikely to happen soon. They associated real reconciliation with effective protection and enjoyment of rights, safety, and dignity. The Process Did Not Earn the Confidence of the Displaced Community The displaced population in general, particularly the non-reconcilers, lost confidence in the official reconciliation mechanism because of the perceptions and problems discussed above, as well as a range of other factors. For example, they were frustrated with the fact that the leader overseeing the official reconciliation process was either the Druze political leader responsible for their displacement or a member of his parliamentary group. Further, they were disturbed by the fact that parliamentary elections played a major role in motivating governmental officials and reconciliation leaders to secure the funds needed for compensation; they regarded the connection between the elections and the securing of funds

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as an attempt to bribe the idps to participate in the elections. As discussed above, the displaced felt that they were not treated equitably; they felt that most reconstruction efforts focused on the Druze community and failed to address the Christian community’s needs and projects. All these factors made them lose confidence in the government and in the international development agencies and ngos that were to assist them in their return. As a development practitioner indicated: “The demands and needs that Christians had requested and which they considered priorities were never implemented. Once while in a meeting, a Christian person said: ‘That’s it, what are they [government and organizations] going to do?’ ... If they were going to respond to our demands, they would have done it a long time ago.” Community members as well as development practitioners highlighted these perceptions. A Christian elected official – initially a reconciler who changed his position – explained that although the official reconciliation process in Mura had already taken place, Christians still felt bitter toward members of other religious groups. He considered the way reconcilers were dealing with the reconciliation process to be incorrect. Interestingly, however, he did not publicly reveal his changed perspectives; Mura’s reconcilers therefore still considered him as one of them. Revealing his new perspective would have made the reconcilers, who are his friends, perceive him as an extremist. Indeed, during the interviews for this research, many individuals belonging to all four categories lowered their voices, and some requested that specific conversations not be recorded, especially when they were talking about the other religious group. This may be an indicator of the coldness, fearfulness, and alienation that continued to exist between members of the different groups, despite the end of the formal reconciliation process. A N A LYS I S OF P E RC E P TI ON S A N D I M P L I C ATI ON S

To sum up, Lebanon’s official reconciliation mechanism, particularly as it was implemented in the Mount Lebanon area, met neither the expectations nor the needs of post-conflict communities, including displaced Christians and the Druze. Instead, in many cases, it served as a marginalizing mechanism, particularly for the displaced population. Many actors, including the government, political leaders, civil society, and international development organizations, played direct or indirect roles in this marginalization process. Some of the primary factors that explain this marginalization are detailed below.

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First, stakeholders, including governmental officials, local leaders, leaders of local organizations, and development practitioners, as well as local citizens, lacked a unified concept of who was to be involved in the official reconciliation mechanism, and which individuals and/or groups were to be targeted in rebuilding Mura. The process was informed by the rather abstract notion that reconciliation and return were to benefit the “whole community,” but the stakeholders disagreed on the definition of this community. The main disagreements involved whether to target the displaced community to enable their return, and/or whether to target the town inhabitants more broadly, to improve their living conditions. Second, the process was undermined by the marginalization, restriction, and exclusion of some groups, Christian and Druze, because of their religious and/or political affiliations. Opponents of the main Druze political party were particularly susceptible to marginalization. Reconcilers, Christians and Druze, have either actively participated in this marginalization or, at the very least, justified it. The following statement from a Christian non-reconciler is illustrative: We were not involved in the return process and in its decision making because they considered us extremists as we requested either to return with all our rights or not to return [at all] ... But the people known to have participated in the war, and whose opinion is extremist, or that’s the propaganda, were marginalized: they didn’t involve the person whom we considered to ensure our rights. They marginalized him and did not call him for meetings.13 I think there was an acceptance from the second group [Christian reconcilers] for things to happen this way. Christian reconcilers were seen by Christian non-reconcilers to have accepted the marginalization of the Christian community as a consequence of their military defeat. Given their marginalization, they were seen as accepting any roles the Druze gave them, and as satisfied with the basic rights agreed upon in the context of the official reconciliation process. Their goal was to develop or nurture a sense of mutual respect and acceptance with the Druze community. On the other hand, Christian non-reconcilers were reluctant to accept a perpetually marginalized role as the losers of the conflict. They emphasized the need to obtain all their rights and to feel equal with their neighbours. As non-reconcilers – especially Druze non-reconcilers – recognized, the process was compromised

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by the restriction of participation opportunities to members of a Druze political party that sought to marginalize its Druze political opponents. C ON C LU S I ON

The official reconciliation mechanism in Mura failed to achieve its overall objective, the creation of a “favorable social climate for successful return in areas that witnessed fierce fighting” (mod 1998, 25). In this connection, it did not meet the targeted population’s expectations and needs; it did not address the psycho-sociological implications of displacement on various religious communities, or persistent sentiments such as bitterness, anger, and hatred. Consequently, it failed to strengthen civil society in Mura and to restore the inter-religious networks that broke down during the civil war and the displacement that resulted from it. While a minority of Mura residents supported the process, these failures were widely expressed by members of both religious communities as well as by many development practitioners. For example, one development practitioner reflected: “I do not know whether we forgot or we pretended to forget [the goals of inter-religious involvement and reconciliation] ... But in truth we did not make enough effort [to address these goals] ... reconciliation was a theoretical goal.” A Christian non-reconciler echoed these views on the failure of the process, saying, “You will find two kinds of people from both religions; those diplomats who will say ‘Reconciliation, we’re brothers,’ and those who are not diplomatic. You [researcher] will see that there’s no reconciliation yet. That’s because the reconciliation is not happening in a good way.” Not only did the official reconciliation fail to achieve its overall objective, it also had negative effects on Mura’s community. It had detrimental impacts on the achievement of effective reconciliation, the reform of intra- and interreligious relationships, the return process, and idps’ confidence in the governmental and non-governmental organizations that aimed to assist them in the return process. In effect, the official reconciliation process further segregated an already deeply divided post-conflict community into four broad categories (Christian reconcilers, Christian non-reconcilers, Druze reconcilers, and Druze non-reconcilers); conflicts between members of these groups further undermined efforts to enable return and effective reconciliation in Mura. The official reconciliation process, as it took place in the Mount Lebanon area and in Mura, simulated a tribal conflict resolution mechanism

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(Irani and Funk 2000; mod 2005). It was designed neither to address the psycho-sociological implications of displacement on community members, nor to emphasize forgiveness. In contrast, processes such as South Africa’s truth and reconciliation commission, established by President Nelson Mandela, were designed to uncover past wrongdoing in the hope of resolving past conflicts (Truth and Reconciliation Commission of South Africa 2003). It emphasized that forgiveness and reconciliation required coming to terms with the past, without attempting to forget it or repress it (Chapman and Spong 2003, 10). While the South African process certainly had its shortcomings, these elements were missing from the Lebanese strategy and process, which ultimately compromised their efficacy. As Irani (2000) states, Lebanon has not yet experienced reconciliation because it has not gone through the process of “policing the past.” In Irani’s view, policing the past involves making the difficult choice to punish the perpetrators of violence or reintegrate them into society, which did not take place in the Lebanese case. Many factors contributed to Lebanon’s failure to police its past: the prolonged and unresolved problem of displacement; the great amount of mistrust and fear remaining between the various Lebanese communities; and the lack of trials for militia leaders who committed human rights abuses (Irani and Funk 2000). Instead, the militia leaders who committed human rights abuses (or their family members) now hold leading political positions in the parliament and the government. The reconciliation and return processes in Mura were undermined by the fact that the official reconciliation process was a pure formality that sought to satisfy the minimum requirements of bureaucratic regulations. The processes also suffered from a lack of political will on the part of local and national politicians; instead of striving to uphold the needs and rights of those who suffered during the war, they were shaped by the feudal system that regulates political life in Lebanon. More than fifteen years after the end of the civil war, Mura’s situation was consistent with Bollens’ (2002) observation that implementing the political agenda of one group while marginalizing or excluding the other would be felt as unjust; negatively impact the excluded; harm the communities’ vitality and functionality; and polarize segments of the population. While the official reconciliation process in Mura obstructed rather than facilitated the return process and effective reconciliation between Druze and Christian communities, it is nonetheless a source of insights and a cautionary tale for societies struggling to emerge from conflict and large-scale displacement.

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notes 1 Two governmental structures were founded in 1991 to manage, facilitate, and fund the return process: a Central Fund for the Displaced and the mod. The Central Fund for the Displaced was established to finance the return of the displaced and was placed under the direct trusteeship of the prime minister. It paid compensation to families of victims, depending on the availability of funds. The mod was established to administratively and logistically manage the return process. The first appointed minister was Elie Hobeika, the former leader of a Christian militia, and founder and president of the Waad Party. He also became a member of the Lebanese Parliament after the end of the war. Hobeika was shortly replaced by Walid Jumblatt, a national Druze leader, former leader of a Druze militia, chairman of the Progressive Socialist Party (psp), and leader of the Democratic Gathering Parliamentary bloc. Both appointments were highly controversial as both individuals had played key roles in the largest Mount Lebanon displacements. 2 In this chapter, I use “effective reconciliation” to differentiate between “official reconciliation” and real reconciliation that leads to easing tensions, conflict resolution, and civic involvement. 3 The Druze are a religious group of Islamic origin that broke away from the Ismaili Muslims in the eleventh century. The term “Druze” is linked to one of the earliest followers of Caliph al-Hakim, Muhammad ad-Darazi. Members of the Druze community live as minorities in Lebanon, Syria, Israel, and Jordan; smaller numbers live outside of the Middle East in Australia, Europe, and the United States. 4 According to Statistics Lebanon, the population of Lebanon is approximately 4.3 million. An estimated 27 per cent of the population is Sunni Muslim, 27 per cent is Shia Muslim, 21 per cent is Maronite Christian, 8 per cent is Greek Orthodox, 5.6 per cent is Druze, 5 per cent is Greek Catholic, and 6.5 per cent belong to other smaller Christian groups. 5 Translation from Arabic mine. 6 Under the Druze feudal system, Walid Jumblatt inherited wealth and status from his father, Kamal Jumblatt. He also took over leadership of the Druze political party. 7 A section of the Christian community in Mount Lebanon is historically known to be “Jumblatti” (allied with Walid Jumblatt). Most of them were displaced like other Christians. A very low number of Christian Jumblattis were not displaced from Mount Lebanon, but protected by the Druze during the war. In Mura, for instance, only one Christian family was not dis-

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placed, while over 199 others were. Regardless, Christian Jumblattis still consider Jumblatt their political leader. The expression of condolences after the death of a family member is a cultural requisite in Lebanon. For the purposes of this categorization, “participating in fighting” includes ex-combatants and their families, as well as individuals/groups who actively shared and supported the combatants’ political orientations/alliances. The Druze residents occupied the displaced Christians’ houses and lands due to many factors, including population growth and density, and a desire to improve their living conditions by moving to larger residential areas. Given the limited space available, this discussion focuses on concerns about the shortcomings of the reconciliation process, rather than on the positive perspectives the Christian and Druze reconcilers embraced. For a discussion of these more positive perspectives, please see Irani and Funk (2000), Irani (1997), and Maroun (2008). “Sticks in the wheels” is a local expression that means obstructing a process. The respondent is mentioning a local lf leader who was involved in the fighting.

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11 The Timor-Leste Commission for Reception, Truth, and Reconciliation and the 2006 Displacement Crisis in Timor-Leste: Reflections on Truth-Telling, Dialogue, and Durable Solutions LU IZ V IEIR A

Historically, truth commissions have rarely addressed displacement as a major human rights concern, or sought to concertedly engage refugees and internally displaced persons (idps) in their work.1 Bucking this trend, TimorLeste’s Commission for Reception, Truth and Reconciliation (Comissão de acolhimento, verdade e reconciliação de Timor-Leste, or cavr) was one of the few truth commissions to date that not only investigated forced migration as a human rights issue, but also explicitly endeavoured to support the resolution of displacement, in particular through a community reconciliation process (crp) that facilitated the return of individuals who had committed “less serious” crimes. Despite the cavr’s efforts and national and international support for the settlement of tens of thousands of refugees and idps, a new displacement crisis rocked the capital and surrounding districts in 2006. In response, the government again supported myriad dialogue initiatives in an effort to enable idps’ return and reintegration into their communities. In this chapter, I examine linkages between the work of the commission and the 2006 dialogue initiatives as they relate to the resolution of displacement in Timor-Leste. I argue that while significantly different, both responded to a perceived need for some form of mediated community engagement in the return process based on traditional dispute resolution

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mechanisms. Analysis of the commission’s impact on the durability of return and reconciliation can inform discussions about the 2006 political crisis and account for the potential role of truth-telling processes in supporting reconciliation and the resolution of displacement, particularly as part of broader nation-building processes.2 I argue that the cavr’s work was largely focused on the past, in a way that was not necessarily maximally conducive to addressing nation-building challenges in Timor-Leste, including the resolution of displacement. In fact, as I argue elsewhere, the central challenges faced by the cavr and the early stages of the nationbuilding process in Timor-Leste relate not so much to the commission itself or truth-telling per se, but to the fact that these processes were not accompanied by strategies rooted in a concept of nation-building as an inherently conflictual process characterized by competition for political and material resources (Engel and Vieira 2011). I consider the cavr’s impact to have been constrained by the dominance of the “liberal peace” framework in Timor-Leste.3 I find the contrast between the cavr and the 2006 dialogue initiatives illuminating precisely because it sheds some light on the perils of compartmentalizing transitional justice processes, such as the cavr, from broader nation-building processes and post-conflict dynamics. While less structured, less explicitly focused on truth-telling, and lacking the cavr’s well-developed institutional architecture, the 2006 dialogue initiatives seem to have done a better job of considering important economic and power issues. The dialogues counted on substantial engagement by highlevel government officials who used them as opportunities not only to mediate past grievances, but also to shape the nature of the post-2006 political settlement and to more solidly anchor the state as an important actor in the nation-building process. This analysis suggests that truth-telling processes such as the cavr can make innovative, targeted contributions to supporting the resolution of displacement. They can also contribute to establishing forced migration as part of the historical record and ensuring that refugees’ and idps’ experiences are included in national historical narratives for future generations. However, it is essential that field expectations mirror academic literature’s nuanced perspective in which the link between truth and peace is recognized as tenuous and contingent (Borer 2006). Unfortunately, the predominant attitude about truth-telling in Timor-Leste seems to prove Mendeloff (2004, 356) correct, as it “overstate[s] the case” on the relationship between truth-telling and successful peacebuilding and nation-building processes. Indeed, Hayner’s reflection seems very apt: “many comfortable assumptions

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have been restated over and again in untested assertions by otherwise astute and careful writers, thinkers, and political leaders ... Some of the most oftrepeated statements and those that we perhaps most wish to be true, are due careful scrutiny” (Borer 2006, 4). Unrealistic expectations of truth-telling exacerbate the potential disconnect between transitional justice and reconciliation activities and broader humanitarian and development strategies, particularly where the liberal peace framework exerts considerable force, as was certainly the case in Timor-Leste. It is therefore important to heed Borer’s call for a more cautious approach, one that accepts truth-telling’s limitations in dealing with the power and complexity of the social dynamics that fuel forced migration and shape the extent to which solutions to displacement are attainable.4 With this understanding in mind, I situate this chapter between those who are skeptical of the inherent power and necessity of truth-telling, such as Mendeloff (2004, 2007), and those who see it as central to the reconciliation process (see e.g., idea 2003). I underscore the need to consider any truthtelling or dialogue process within the context of their impact on the underlying political, social, and economic relationships that underpin the nationbuilding process (Khan 2005). The chapter draws on my experiences working as chief of mission for the International Organization for Migration in Timor-Leste from May 2002 to February 2010. In this capacity, I was a member of the technical working group that was tasked by the minister of social solidarity to support the development of the government’s National Recovery Strategy in response to the 2006 displacement crisis. I begin this chapter with a brief overview of the establishment of the cavr and an examination of displacement-related activities. I then contrast the work of the commission and the approaches used by the government and international community to address the displacement that arose from the 2006 civil unrest. Finally, I consider the links between the cavr and the dialogue processes implemented in the aftermath of the 2006 crisis, and the promotion of durable solutions to displacement. TH E I N D E P E N D E N C E OF TI M OR - L E STE A N D T HE E STA B L I S HM E N T OF THE C AV R

Indonesia’s twenty-four-year occupation of Timor-Leste, which began in December 1975, was marked by extreme violence, torture, and other human rights violations, which led to significant displacement.5 In 1999, the fall of President Suharto in Indonesia and the changing geopolitical

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context that followed the Berlin Wall’s collapse increased international attention on the “Timor question,” leading to a change in Indonesia’s position. Under President B.J. Habibie, Indonesia agreed to hold a Popular Consultation in the form of a referendum to determine once and for all the status of what it saw as its twenty-seventh province (cavr 2005, 124–7). Security was a primary concern for both the Timorese population and the international community. This concern proved more and more pertinent as it became evident that the Indonesian security forces had increased support to their Timorese militia proxies throughout TimorLeste in an effort to intimidate the population into voting against independence from Indonesia. As the consultation date approached, militia activities, threats, and violence worsened. It is estimated that up to 40,000 people were displaced in the lead-up to the consultation (cavr 2005, 134). On 30 August 1999, despite the violence and intimidation, the Popular Consultation took place. Voter turnout was extremely high, and the population opted overwhelmingly for independence and against autonomy within Indonesia. The joy of the occasion did not last, however, as the Indonesian-controlled militias responded to the results with severe violence. It was mid-September before Indonesia acquiesced to an international intervention and a United Nations-backed, Australian-led military mission (International Force East Timor) was launched to stabilize the situation. By that time, more than 1,000 people had been killed and an estimated 70 per cent of the country’s infrastructure had been destroyed. Thousands more were displaced to West Timor or internally within TimorLeste (cavr 2005, 143–53). In an effort to support Timor-Leste’s transition from an occupied territory officially under Portuguese administration to a full-fledged independent nation, the un Transitional Authority for East Timor was established on 25 October 1999 by Security Council Resolution 1,272. The authority was empowered to exercise all legislative authority for the new entity, and during its mandate the first Timorese Constituent Assembly was established (untaet 2001/2). Its members, as provided for by its regulations, eventually went on to form the country’s first constitutional government, with Xanana Gusmão as its head of state and Mari Alkatiri as head of a Fretilin-controlled government. In 1999, the un sent a Commission of Inquiry to investigate the postPopular Consultation events and to recommend methods of accountability for those responsible. While the commission recommended the establishment of an international tribunal to try criminal cases, the un chose

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instead to establish a Serious Crimes Unit within the un Transitional Authority for East Timor. After independence, the unit worked under the legal authority of the prosecutor-general. The un also encouraged the Indonesian government to use its own judicial system to try Indonesian residents (cavr 2005, para. 6). Recognizing that the pursuit of criminal justice solely through the nation’s newly established judiciary would prove extremely challenging, and that much of the population continued to adhere to and respect modes of justice and reconciliation based on traditional mechanisms – such as those dependent on intermediation by elders and lia-nain – literally, keepers of the word – the un transitional administrator and the Timorese leadership established the cavr in 2002 (Gusmão 2005, 3).6 The cavr was mandated to examine incidents from 1974 to 1999, covering not only the Indonesian occupation but also the Timorese civil war (untaet 2001/10). Its initial twenty-four-month mandate was extended several times and finally expired on 31 October 2005 (cavr 2005, part 2, 2).7 The commission had no mandate to prosecute those accused of serious crimes (murder, rape, and torture), but it was responsible for ensuring a connection between the Office of the General Prosecutor, which was charged with prosecuting serious crimes, and the crp initiatives, which were restricted to addressing “minor criminal offenses and other harmful acts” (cavr 2005, part 2, 2). The commission consisted of seven national commissioners, had over 300 national staff throughout the country, and counted on the assistance of over a dozen international technical advisors. It had full power to subpoena and to search and seize information anywhere within the country. The response to its work was considerable – it received 7,669 individual statements.8 Charged with assisting the return and reintegration of low-level perpetrators of violence to their communities, the commission developed and implemented the crp. The crp was an explicit attempt to incorporate broadly accepted community-based conflict resolution mechanisms, such as the importance given to traditional religious authorities, links to ancestors, and Nahe Biti (big mat) dialogue initiatives, into a formalized criminal justice and state-endorsed framework. Efforts were made, for example, to liaise with community leaders to determine the seating arrangements for the process. Particular attention was paid to ensuring that the places allocated to local religious leaders were in line with local custom. Hearings normally began with traditional lisan rituals (cavr, part 9, 17). In this regard, the commission used familiar concepts while adapting them to the

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needs of a structured system largely led from outside the community. The system thus acknowledged the lisan tradition’s continuing importance while seeking to root it in, and make it supportive of, the principles on which the new state was founded (cavr, part 9, 5). T H E C AV R ’ S A P PROAC H TO FORC E D D I S P L AC E M E N T

The cavr (2005, part 7, chap. 7.3, 1) explains in its final report that addressing forced displacement (and the related issue of famine) was “critical to understanding the story of human suffering and human rights violations associated with the conflict because displacement was a defining feature of the years of conflict in Timor-Leste. Almost every East Timorese person who lived through these years suffered some form of displacement, and many were displaced several times.” It also notes that displacement is closely related to other human rights violations: “By uprooting civilians from the settings in which they have supported themselves, displacement commonly results in deprivation of various kinds, including hunger, disease and the loss of adequate shelter. Often displacement is in effect a form of arbitrary collective punishment, and as such is associated with violations of a range of human rights, civil and political as well as economic, social and cultural. All of these features of displacement were not just present in Timor-Leste, but in a very pronounced way” (cavr 2005, part 7, chap. 7.3, 5). The cavr devotes a full chapter of its report to describing in detail the issue of forced displacement in Timor-Leste and its methods for gathering information on the topic. These included: an analysis of the more than 7,500 narrative statements taken by the commission (cataloguing 16,977 unique displacement events); information gathered during community profile workshops; a public hearing specific to displacement;9 interviews with victims of displacement; a statistical analysis of data gathered through a special investigation to estimate patterns of displacement (the Death Toll Project); written submissions on the topic from within and outside TimorLeste; and an analysis of written material and radio and video broadcasts (cavr 2005, 8–9). The chapter on displacement details the commission’s findings and catalogues the events that led to forced displacement; responsibility for these events; and their consequences. “It is likely that more people died from the effects of displacement,” the report asserts, “than from any other violation” (cavr 2005, 144).

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S U P P O RT FOR R E C E P TI ON A N D R E C ON C I L I ATI ON THROU G H THE C AV R

The cavr’s mandate encompassed violations that occurred over a period of approximately twenty-five years. However, it undertook its work within the context of massive displacement surrounding the Popular Consultation of 1999, when it is estimated that more than 450,000 people were displaced by violence. Roughly 240,000 people fled to Indonesia, most to West Timor (Niksch et al. 2001). By 2004, the International Organization for Migration and the Office of the un High Commissioner for Refugees (unhcr) estimated that all but approximately 25,000 of the refugees had returned to Timor-Leste. While the commission’s mandate clearly stated that it must concern itself with the conflicts and antagonisms that occurred during and prior to the period of occupation, in practice support for the return and reconciliation of those who had committed criminal or harmful acts in 1999 often took precedence.10 According to the commission, the majority of deponents in the crp, which aimed to address “less serious crimes” committed by individuals who remained displaced, were males between twenty-five and thirty-five years of age. This reflects the commission’s focus on relatively recent acts of violence. The cavr developed the crp on the basis of community and expert consultations. Ultimately, the crp received over 1,541 statements from prospective deponents and supported the successful completion of cases involving 1,371 deponents, a 90 per cent completion rate. The remainder consisted of cases retained by the Office of the Prosecutor General, in which the deponent did not attend or the hearing was adjourned (cavr 2005, part 9, 31). The crps were developed partially as a response to the realization that resolving the vast number of ordinary crimes that had been committed would challenge the country’s new judicial system. As an additional motivation, the cavr’s (2005, part 9, 2) report explains, “the crp procedure was based on the philosophy that community reconciliation could best be achieved through a facilitated, village-based, participatory mechanism. This mechanism combined practices of traditional justice, arbitration, mediation and aspects of both criminal and civil law.” The crp framework incorporated the role of lia-nain and elders, and the nahe biti bo’ot (spreading the large mat) in conflict and dispute resolution (cavr 2005, part 9, 5). Traditional lisan rituals were incorporated into the opening ceremony of community hearings. crps were initiated by a perpetrator’s voluntary submission of a statement to the commission

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detailing the nature of the acts committed and admitting responsibility for them. The statement was subsequently passed on to the Office of the Prosecutor General, which would decide whether to exercise its jurisdiction for prosecution. If it decided that the crp could be used, the commission was charged with organizing a hearing for the perpetrator in her or his community. According to the cavr, perpetrators at crp hearings had to make formal public admissions and could be questioned by victims and community members. A panel of three to five local leaders would then prescribe the “acts of reconciliation” that a perpetrator should perform “in order to be accepted back into the community” (cavr 2005, part 9, 81). These could include community service, an apology, or the payment of symbolic fines. If the perpetrator accepted the decision, an agreement would be forwarded to the appropriate district court to be formalized. “On completion of all required ‘acts of reconciliation,’” reports the commission, “the perpetrator was automatically entitled to civil and criminal immunity for all actions covered in the agreement” (cavr 2005, part 9, 10). Traditional lisan procedures and spiritual leaders’ participation were incorporated into the hearings, which was important because “participants believe that their ancestors, who are summoned at the beginning of the ceremony, are witnesses to the nahe biti bo’ot ritual and validate the proceedings. Their presence makes the process binding, and any failure to accept the outcome is believed to have serious consequences” (cavr 2005, part 9, 5). It has also been argued that the commission’s strategy of giving traditional leaders a prominent role in the crp panels aimed to “rehabilitat[e]” traditional structures, which had been heavily manipulated during the Indonesian occupation (Larke 2009, 646–76). The resulting improved standing of and increased trust in the traditional leadership was expected to enhance traditional justice schema beyond the crp’s immediate context. The commission’s activities can be best understood by recognizing that its mandate extended beyond truth-telling, justice, and a narrow sense of localized community accommodation. That is, it sought to simultaneously contribute to the general environment of reconciliation and understanding at the national level through its truth-telling activities, while also helping communities deal with very specific and local issues. Its work was anchored in a broad concept of reconciliation, defined as: A process, which acknowledges past mistakes including regret and forgiveness as a product of a path inherent in the process of achieving

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justice; it is also a process which must involve the People of TimorLeste so that the cycle of accusation, denial and counter-accusation can be broken. This process must not be seen only as a conflict resolution or mere political tool, which aims at pacification and reintegration of individuals or groups in the context of their acceptance of independence and sovereignty of Timor-Leste but, above all, must be seen as a process where truth must be the outcome. (cavr 2005, exec. summary, 18) The commission recognized that the challenges to the reintegration of people who had committed criminal or harmful acts against their communities constituted a potential source of instability at the community level. The crp was premised on the hope that the process of truth-telling inherent in the crp would diminish suspicion and anger. Despite the broad reconciliation and peacebuiding approach the commission adopted, its more ambitious objectives concerning the popular internalization of its reconciliation ethos and calls for conflict-sensitivity by the leadership failed to take root to the extent desired. Rather, the cavr process largely dealt “only” with the past, and focused on developing a historical record and assisting individual returns. The commission’s work did not function as a point of reference for those struggling to deal with the tensions arising from the nation-building process. As Gready suggests, “it is unrealistic to expect them [truth commissions] to offer ‘informed strategic recommendations on everything from torture to education’ – they simply lack the expertise for such policy formulation” (quoted in Waldorf 2012, 176). While concerns about capacity may have contributed to the exclusion of policy formulation from the cavr’s mandate, I think more crucial was the general confidence that peace would come from simply applying the instruments of the liberal peace model, that is institutionbuilding, democratization, and economic liberalization (Waldorf 2012, 173). As Larke (2009) argues, the commission’s decision to call those who opted to acknowledge their crimes through the crp “deponents” rather than “perpetrators,” and to focus the hearings on the narrative of the deponent rather than the victims, allowed for the construction of a framework in which both victims and deponents sought to inhabit similar ground – that of the marginalized, coerced, and violated. Arguably, a narrative of a population victimized by the circumstances of war, rather than by the willful violent acts of responsible individuals, was slowly constructed – perhaps not coincidently in concert with the reconciliation ethos pursued

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by the country’s leadership. The leadership’s effort to create a national narrative focused on popular suffering is consistent with Mendeloff’s (2004, 371) suggestion that lies, or in this case the selective emphasis on the “reality of general victimhood,” can be potentially just as useful as “truth” (about individuals’ culpability for violations) in constructing a national myth conducive to peacebuilding. The leadership’s faith in the power of this “generalized victimhood” narrative is evidenced by numerous public statements that sought to underscore the hardship of occupation and the difficult choices forced upon the occupied population. While this evolving construct did not seem to detract from or considerably impact the post-1999 return and reintegration process, it did contribute to the dynamic of the 2006 displacement crisis, as discussed below. The message that forgiveness is preferable to a potentially destructive search for “revenge” through criminal justice, and that the entire population had been victimized by the occupation, remains common currency in Timor-Leste today.11 There is, in fact, a growing propensity toward abdication of personal responsibility rooted in a sense of generalized victimhood. This was evident during the 2006 crisis, when many perpetrators of arson and other acts attributed responsibility for their behaviour to the leadership, normally referred to as Ema Bo’ot (big people). The pardons the then-president of the republic granted to people convicted of violent crimes are consistent with this paradigm. As the Chega! report reflects, the cavr’s analysis of the impact of the crp concluded that the process was extremely successful.12 According to the report, “Ninety-six [per cent] of all persons interviewed said that the crp had achieved its primary goal of promoting reconciliation in their community” (cavr 2005, part 9, 34). The report asserts that the crp had a powerful symbolic value within communities, representing the end of the nation’s long history of conflict, but it also recognizes that reconciliation cannot be achieved instantly or through a single, one-time process. It noted the need for continued support to community reconciliation processes and recommended that the government “establish a community-focused mechanism for conflict prevention and resolution, based on the lessons learned from the cavr community reconciliation process” (cavr 2005, part 11, 29). Significantly, the suggestion was that the mechanism “be mandated to address both past political conflicts in Timor-Leste and contemporary challenges to the peace and stability of communities” (cavr 2005, part 11, 29). Alas, given the compartmentalization of transitional justice, peacebuilding, and development processes, no steps were taken to create

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the proposed mechanisms and the linkages between contemporary challenges resulting from rapid economic and political changes and the legacies of the past remained unaddressed. While the un peacekeeping missions, undp, and other international actors were mandated to support peacebuilding efforts, their support was based on the liberal peace model. Support thus largely focused on institution building, democratization, and economic growth, as advances in these areas were considered analogous to peacebuilding.13 Indeed, no concerted efforts were made to integrate conflict-sensitive strategies into Timor-Leste’s strategic development plans. It is worth recalling that the commission’s grassroots reconciliation initiatives focused on the return and reintegration of persons who had committed harmful acts against their communities. It did not have a mandate to analyze or respond to the potential conflict dynamics arising from the mass return and resettlement of persons who did not participate in crps. Indeed, it appears from the numbers of participants in the crp process that the vast majority of those displaced did not perceive themselves to have a need for reconciliation-related reintegration support. While the interest expressed in the crps was indeed substantially greater than initially expected, 1,500 statements remains a very small number when considered in light of the total displacement. Unsurprisingly, stability and durable solutions required assistance beyond truth-telling and localized crp interventions. Communities required support in overcoming broader, evolving socio-economic challenges within a political environment characterized by increasingly hostile rhetoric. The commission’s admission of its limitations in this regard is reflected in the above-mentioned recommendation that the government establish a community-based conflict resolution mechanism. This tension illuminates a meta as well as a functional challenge to the truth-telling process in Timor-Leste. The Timorese leadership and the international community saw the commission’s success in supporting short-term return and reconciliation and in providing a well-documented historical narrative as sufficient and as the commission’s principal contribution to the process. While certainly not by design, the cavr contributed to a sense among the international community that the East Timorese possessed an almost unnatural ability to reconcile. This attitude seems related to a propensity of members of the international community to frame the Timorese struggle as a monolithic “just fight” for liberation. The cavr was widely seen as important only for its role in closing the chapter on past grievances. This made it ill suited as a point of reference for informing approaches to development in a society mistakenly considered to be

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at low risk for renewed internal conflict. Its future-oriented suggestions were thus largely ignored by the Timorese leadership and by the international community. The medium-term consequences of large-scale returns and resettlement to a capital city with scarce housing stock and employment opportunities were not methodically considered during the post-1999 return process. The scale and speed of the return process, which included both assisted and spontaneous returns, challenged the capacity and resources of those involved and made it impossible, as is often the case in post-emergency settings, to link returns with more permanent housing reconstruction and comprehensive land-titling efforts. The failure of broader development programming and policies to prioritize the housing deficit and to address the impact of rapid urbanization and resources competition in the capital seems more difficult to explain – as is the failure to establish more community-based conflict resolution mechanisms. However, these approaches become more understandable if one recognizes that the international community perceived Timor Leste’s challenges as rooted predominantly in questions of poverty alleviation and development, rather than in the navigation of a complex and conflictual nation-building process.14 That is, the international approach was solidly anchored to faith in the liberal peace approach. Early concerns about the international community’s approach, particularly given its degree of control in determining Timor Leste’s development strategies, are illustrated by the president’s speech to development partners in 2002, in which he stated: “If we take into account that there is or there should be a partnership between Timor-Leste and the Donor Community, then I wish to recommend a better perception of priorities in core issues ... those areas, which sustain the interdependency of the political, social and economic factors ... If we take the 20th May 2002 as a new reference date, we may risk undertaking assessments of the complex political socio-economic process with less objectivity” (Gusmao 2002).15 As the 2006 crisis made clear, these oversights proved costly. The cavr, demonstrating commendable foresight, recommended: “The Parliament and the Government institute an inquiry into land disputes that have arisen as a result of the wide-scale resettlement programs undertaken during the political conflicts, with a view to promoting peaceful mediation of these disputes and avoiding violence” (cavr 2005, part 11, 29). As this recommendation was never taken up, we can only wonder about what

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the potential impact of the mechanism the cavr proposed might have been. The dynamics that created the conditions for the 2006 crisis arose slowly and not because of some inherent weakness in the cavr process or its truth-telling component, but because the country’s leadership and the international community were unable to identify, or take strong action to address, latent conflicts before it was too late. Nearly the entire international community adopted the idea that the return process signaled, once and for all, the end of conflict in the country. While some senior members of the international community did attempt to bring attention to the increasing social and political tension in the country, the international community was either unable or unwilling to change its approach to the country’s development and thus contributed to the context that led to the 2006 crisis. The return process was considered in isolation, as if it had no impact on broader social dynamics. At the same time, development actors proceeded as if the Timorese population’s recent experience of displacement and abuse had little immediate relevance. The failures that led to the 2006 crisis therefore lie, to a significant extent, in the inability of the Timorese leadership and the international community to pursue development strategies that considered the challenges faced by a population with a traumatic and violent past – a population that was subjected to rapid change across nearly every sphere of life. THE 2006 C R I S I S A ND THE RE TU R N A N D R E I N TE G R ATI ON P ROC E S S

An in-depth analysis of the precise origins of the 2006 crisis is beyond the scope of this chapter.16 That said, its proximate causes are widely attributed to the interaction of regional antagonisms (East/Lorosae versus West/ Loromonu), the internal dynamics of the security and armed forces, and the political leadership. Escalating tensions in late April 2006 led to the displacement of approximately 12,000 people within Dili. By late May, the situation had deteriorated, culminating in an open exchange of gunfire between police and the armed forces and the displacement of an estimated 100,000 additional people. The violence was contained, however, by the arrival of an international stabilization force. In June, the government estimated that approximately 150,000 people had been displaced, and fifty-six idp camps had been established in Dili (un ocha 2007). While some displacement took place outside of the capital, and some camps were estab-

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lished in the country’s second city of Baucau, the vast majority of violence and displacement was restricted to Dili. While more than 14,000 homes were damaged or destroyed during the crisis, the level of physical violence was comparatively very low (Ministry of Social Solidarity 2009). It is estimated that approximately forty people were killed as a result of the 2006 conflict (International Crisis Group 2006). In 2008, in response to significant political events, dramatically decreased levels of violence, and pressure from idps, the government turned its attention fully to resolving the displacement situation.17 At various points during the period of displacement, government policies sought to support the resettlement of Dili-based idps to areas outside the capital through the provision of building materials and transport; however, the vast majority of idps opted to seek return and reintegration within the capital. Government efforts to encourage returns to the districts were based on the understanding that many of those uprooted by the violence in Dili, while displaced from their residences in the capital, had migrated relatively recently. They were thus considered to “originate from the districts,” where they were assumed to maintain family and ancestral ties. These efforts to use government “return” (resettlement) policies to counteract mass urban migration linked to the Indonesian occupation, the 1999 returns process, and perceptions of improved opportunities in the capital speak to the inability of the international community and the government to accept, prioritize, and deal with urbanization and its political and social impacts. Again, it is uncertain whether a community conflict resolution system as the cavr proposed (admittedly very late) could have complemented isolated efforts to establish an early warning and response mechanism and assisted the government and partners to better address mounting pressures that result, inter alia, from urban migration and land and property disputes. Families decided to return to their villages of residence prior to displacement or to reintegrate elsewhere within the capital on the basis of perceptions of security and the general viability of return. Consultations with idps revealed that fear, damaged and destroyed homes, and land disputes were the principal barriers to return.18 The government, responding to the needs idps identified as well as to increasing political pressure to “close the camps,” developed a comprehensive national recovery strategy called Building the Future Together. The strategy was built around a comprehensive five-pillar framework: (1) building homes together, (2) building protection together, (3) building stability together,

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(4) building the economy together, and (5) building trust together.19 However, the strategy’s attention and resources were almost exclusively limited to the individual reconstruction or rehabilitation of homes (building homes together) and its community dialogue program (building trust together). Timor-Leste has a long tradition of using nahe biti bo’ot to arbitrate conflicts and disagreements (see Babo-Soares 2004). The cavr’s final report explicitly recognizes the importance of this legacy and acknowledges that its approach, particularly the crp, is an adaptation of pre-existing traditions. The Timorese leadership in fact made ample use of dialogue immediately after the 1999 violence, as evidenced, for example, by the president’s numerous outreach initiatives to the militia leadership and his efforts to support community dialogues at the border. The government and other actors also used dialogue initiatives in the aftermath of the 2006 crisis, as I will discuss in the next section. As communal dialogue predated the cavr process, in 2006 these and other trust-building initiatives were viewed as part of the country’s cultural heritage, rather than as part of the cavr-crp process. It is telling that the prevalence of dialogue activities during the post-2006 crisis period was very much the result of grassroots demand and reflected the continued importance attributed to traditional conflict resolution mechanisms, even in urban areas. After considerable debate, including discussions of its administrative capacities and the need to rapidly respond to increased pressure from the idp community for assistance, the government chose to address the issue of reconstruction by providing a cash recovery package to each displaced household. (It explicitly avoided the term “compensation” as it was thought that the term would open the door to disputes about the value of homes, assets, and so on.)20 The term “recovery package” was also chosen to reflect the government’s focus on broad communal recovery, as illustrated by its strong emphasis on and resources dedicated to the dialogue pillar. As the specific trials and tribulations of the return process are beyond the scope of this chapter, I will merely note that the process resulted in the return and resettlement of thousands of people assisted by the government. While some cases of violence and threats against the returned or resettled were identified, these were very limited, particularly in light of the extent of the initial displacement. The government’s recovery packages had an extremely significant impact on the return process, as the program allowed households to have primary control over their return and reintegration choices. The government also continued efforts

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to support dialogue initiatives alongside the implementation of the recovery package program, and the dialogue process had a shifting nature. In reality, the nature of the return process often required that families undertake individual “negotiations” and discussions with community members, particularly with those with outstanding land and property issues. The government provided strong support to this process alongside its wider community dialogue initiatives, which sought more generally to construct an environment that would enable returns. The 2006 process can thus be differentiated from the commission’s work by its support for tangible actions alongside dialogue initiatives. The 2006 approach seems to better respond to the need, identified by President Gusmão (2002), that actions and strategies be guided by an acknowledgment of “the interdependency of the political, social and economic factors.” C O N T RA ST IN G T HE 2006 D I A LOG U E I N I TI ATI V E S A N D THE C AV R ’ S C R P

In response to the displacement resulting from the 2006 political crisis, the Timorese government and a range of other actors, including international organizations and local ngos, undertook a series of initiatives that aimed to facilitate interaction and dialogue between displaced persons and their return or resettlement communities. These ranged from visits to idp camps by the president, the secretary of state for labour and community reinsertion, and his replacement, the minister of social solidarity (who were given primary responsibility for idp-related issues), to individual “go and see” and “come and talk” visits, large-scale community ceremonies based on traditional rites, individual mediation of land and property disputes, and mass information campaigns. To an outside observer, it might seem that the 2006 post-crisis dialogues were the logical outgrowths of the cavr process. However, to accurately assess the cavr’s legacy, it is important to recognize the fundamental differences between and the distinct origins of the two processes. While the post-2006 dialogue initiatives shared with the cavr process a genuine belief in the power and relevance of grassroots-level engagement informed by customary practices, the post-2006 dialogue initiatives’ approaches, methodologies, and objectives differed significantly from those of the crp. Although they too benefitted from and were influenced by the strong and shared communal expectations relating to traditional dialogue, such as the

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nahe biti bo’ot, post-2006 dialogue initiatives were not (until very late in the process) guided by an overarching construct or methodology. The initiatives were highly decentralized, largely responded to grassroots demands, and varied considerably depending on the involvement of outside agencies, the target community, and the issues at hand. Perhaps the greatest divergence between the crp and the post-2006 initiatives was the lack of an explicit truth-telling component in the latter, which did not use formal deponent/victim arrangements, were not driven or initiated by deponents, and did not necessarily focus on individuals. In fact, the 2006 dialogue initiatives had much more modest objectives, although these were better integrated with socio-political dynamics. Instead of seeking truth or indeed a broader conception of reconciliation built on the commission’s model of community accords, the dialogue initiatives aimed to reach consensual agreements focused on issues such as the cessation of violence between communities or on settlements between disputing claimants to property. In the aftermath of the 2006 crisis, comparatively informal dialogue initiatives were widely used by the government and by local and international organizations, and by individual communities seeking to address particular issues. Indeed, this practice was thought so essential that the government established a dialogue working group very early on as an integral part of its response to the crisis.21 It intended the dialogue working group partially to help coordinate dialogue between agencies, as well as to identify and share information about at-risk communities and related obstacles to return. While the 2006 dialogue initiatives did incorporate some truth-telling elements, these were not explicit objectives but rather resulted from the process by which communities and individuals reached their accords. There was certainly no effort made to construct a historical narrative of “truth” as such. In fact, many of the dialogues allowed the search for the truth to be sidestepped in the name of peaceful resolution of local conflicts, often focused on occupation of houses and other property disputes. For example, it was common for communities and individuals to agree – under tense and coersive circumstances – to pay off occupiers who claimed to have merely looked after the owner’s property during the crisis. The difference is highlighted here to question the thesis that communities always perceive the incorporation of truth-telling, rooted in documentation of “facts,” as essential to peacebuilding or reconciliation activities. As Borer (2006, 2) asserts, the extent to which truth will bring about peace is highly conditional.

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The 2006 initiatives tended to originate within the community leadership structure (for example, church and community leaders) or from outside agencies (for example, ngos and government agencies), and were primarily concerned with accommodation between groups. While the crps benefited from very well-defined parameters (that is, the deponent-community narrative concerning criminal and harmful acts), the 2006 dialogues addressed a wide spectrum of social concerns, including disputes related to land and property, economics and business, and community security generally. The breadth of topics raised during community dialogues made identifying effective responses very difficult, and community leaders’ capacity to find long-term solutions to the above-mentioned issues was limited. Perhaps not coincidently, therefore, communities increasingly sought to ensure government officials’ presence at dialogues. This presence was considered essential in ensuring that the necessary actions were taken or supported and resources allocated to address the issues raised in the dialogues. Community dialogues evolved into a legitimate medium of contact with high-level government officials, and consequently became a venue to air grievances of all kinds and seek assistance. This again demonstrates that the 2006 process was deeply embedded in the conflict’s evolving social and political dynamics. The 2006 dialogue process was forced to respond to an immediate and present threat to the state’s very existence. It was thus compelled to engage on key issues on which the contentious nation-building process hinges. It also coincided with the government’s increased effort to exert its sovereignty across all areas, including security and development policy. In contrast, the cavr focused on truth-telling about past events and its crp reacted primarily to the threat of small-scale violent conflict around individuals’ reintegration. This adaptation of approaches suggests that the government, in accordance with Gibson, questioned the premise that “the learning of the truth will somehow convince citizens to put the past behind them and move toward a more democratic [and presumably more stable] future” (Borer 2006, 30). The extent to which the dialogue initiatives brought tangible results varied significantly depending on the nature of the concerns discussed and the ability of the government or other parties to respond. One example of a case in which a dialogue resulted in a very tangible positive outcome for the displaced was that between the prime minister and the idp camp leaders, under the banner of an idp Commission of Victims, in January 2008. As part of ongoing government efforts to maintain contact with the camp leadership, the minister of social solidarity and other members of the ministry met regularly with all camp leaders. At the January

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2008 meeting, the prime minister agreed that the government would consider some arrangement for lost homes and business assets, a key camp leadership demand prior to return. After substantial discussion within government circles, a second tranche of the Recovery Package to compensate families for lost household articles was implemented in 2010. While the second tranche’s implementation was significantly delayed, the prime minister’s willingness to meet with the camp leadership was important for its symbolism, as it validated the population’s concerns. The 2006 dialogue process was highly influenced by popular perceptions about responsibility for the crisis. The 2006 crisis was widely seen by the community-at-large as resulting from the country’s leaders’ inability to “reconcile” in the nation’s interest. It was not unusual for people in camps and the community to renounce any responsibility for their actions and to state instead, for example: “I burned the house because the leaders made me do it; the leaders are responsible.” Community members were at times highly critical of and angered by calls for reconciliation and dialogue among themselves, particularly when these coincided with heated rhetoric and political leaders’ accusations about the underlying political machinations and responsibility for the “incitement” that led to the crisis. Although I never heard it expressed this way, I could hypothesize that the population was angered by the leadership’s unwillingness to internalize the cavr’s ethos and recommendations.22 The impact of the abdication of personal responsibility in the post-crisis period and its impacts on community and political dynamics remains a matter of great debate and concern in the country today. This tendency toward abdication of personal responsibility seems similar to the “histories of innocence” that have emerged in other post-conflict contexts, and reflects references made within the cavr process to acts undertaken in “times of war” and therefore not subject to “normal” social sanctions and scrutiny (see Drexler 2013, 80). “Truth” about individuals’ culpability therefore seems less pertinent in the aftermath of the 2006 crisis than does the formulation of a broad consensus based on the narrative of generalized victimhood. It is interesting to highlight that the ministry of social solidarity has established a permanent dialogue unit to assist communities to address local tensions nonviolently. The decision is in line with the cavr’s recommendation, but the dialogue unit does not consider truth-telling a key component of its approach. The unit in fact originated from the perceived benefit of the ministry’s work in response to the 2006 displacement crisis.23 It was established on the back of the strong success of dia-

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logue initiatives in assisting communities to reach agreements that enabled the return process – and consequently the closure of idp camps, which was a political priority for the government. Dialogue initiatives were seen as essential tools in demonstrating government commitment to the communities and the displaced, and in providing a certain degree of breathing room and stability to the community. As mentioned above, the dialogues and other trust-building initiatives were devoid of an explicit truth-telling element, were not linked to a judicial mechanism, and were highly decentralized. There was widespread resentment of members of the political leadership for their inability to overcome their differences for the good of the nation. Given that the people widely blamed the leaders for the crisis, dialogue initiatives played a key role as vehicles for government outreach and consultation, a role that the crp had not played. In contrast to the crp, community dialogues in the post2006 period in general benefited from the presence of high-level representatives of the state, the church, the police, or the armed forces. In this regard, the presence of senior actors from outside the community proved an important factor in validating the process by giving communities the chance to have their concerns heard. The expectation of the possibility of direct engagement with the leadership is important to communities in the country. As some observers analyzing the crp note, the construction of “truth” by truth-telling commissions, particularly when guided at least to a certain extent by a pragmatic focus on supporting the reconciliation of returnees, is fraught with tensions in narrative, subjectivity, and historical perspective.24 I would argue that the same challenges apply to any process, inclusive of the government efforts in 2006, to assist communities to “reconcile” or engage in meaningful dialogue through one-off initiatives, even when grounded in traditional ceremonies or adaptations thereof. In fact, while I acknowledge the effectiveness of both processes in facilitating the short-term coexistence of members of communities formerly in violent conflict, I agree with Borer’s (2006) and others’ assessments that reconciliation cannot be induced solely through the mechanisms of a singular process. Although this statement seems to express the obvious, I mention it here because in practice the continued compartmentalization of programming seems to reflect a subconscious disregard for this truth. The tenacity of this tendency demands renewed efforts to bridge the theorypractice gap and to better integrate comprehensive conflict sensitive approaches to humanitarian and development programming.

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THE C AV R A N D THE 2006 C R I S I S : R E FL E C TI ON S ON D U R A B L E S OLU TI ON S A ND TRU TH - TE L L I N G P ROC E S S E S

The cavr (2005, part 2, 2) considered reconciliation from a variety of perspectives and recognized the importance of the reception and reintegration of individuals who had harmed their communities. While the commission’s final report evaluates the crps as a success, it also indicates that its own work, and that of the crps in particular, should not be considered the sole and sufficient mechanism for reconciliation in Timor-Leste. Indeed, it explicitly advocates a series of follow-up actions, including several recommendations concerning the behaviour of the political leadership and of the security and defense forces. By the time the report launched in 2006, however, the leadership’s (if not the nation’s) attention had arguably moved beyond the issues it outlines.25 It seems that neither the state nor the international community internalized the cavr report’s strong focus on the need for continued vigilance to guard against potential schisms within a society emerging from a long and difficult period. While the cavr process was an extremely important initiative, providing volumes of information about shared struggles and mutual suffering along with an important window into the country’s brief civil war of 1974, it was unable to ensure cooperation and reconciliation among the country’s elites and the population at large. The country’s leadership, while happy to support the cavr process, seemed to view it as an end in itself and rarely referenced its findings after publication. That is, the process of truth-telling and the proposals that resulted from the cavr were compartmentalized and attributed to a past reality with no relevance to contemporary nation-building challenges. The cavr was considered relevant to a very particular place in time and history: that of the Indonesian occupation and the civil war. The fact that the document has not been debated in parliament is instructive. While the government’s leadership became increasingly concerned with developing tensions, the international community took longer to recognize the threats to stability. In line with its objectives, the focus of the commission’s reception and reintegration activities was limited to those who had harmed their communities. The crps were not linked to complementary initiatives aimed at assisting communities in the capital to adapt to the massive influx of people after the end of the violence in 1999 and other nonpolitical tensions.

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The country’s approach to economic development and the general consequences this has had are outside the scope of this chapter, but these issues have been the subject of research (see, e.g., Hill 2001; Engle and Vieira 2011). At the very least, however, it seems that the difficulty of the task at hand – that is, establishing a productive economy able to generate employment and increase agricultural productivity, while ensuring the stability of the newly formed state’s political settlement – was greatly underestimated. The 2006 crisis, then, can be seen as the result of a series of complex interrelated elements, some of which related to the return of those displaced by the post-consultation violence, but all of which were affected by the slow and uneven pace of economic development. The new political, social, and economic landscape affected the population’s perceptions about the distribution of assets and opportunities, leading to feelings of disenfranchisement by significant groups within society, such as former guerilla fighters and other leaders of the resistance. The inability of the government and its development partners to navigate these admittedly turbulent waters surely cannot be attributed to a failure of the cavr specifically or truth-telling generally. Indeed, in the face of such significant challenges, expectations of the contributions that single institutions and formal truth-telling processes in particular can make must be modest and carefully managed. The events of 2006 demonstrated that the durability of solutions for people returning in the aftermath of the 1999 violence depended on perceptions of individuals’ legitimacy within their return or resettlement communities. Community perceptions are of course complicated, dynamic, and highly contingent on outside political, economic, and other factors. The sustainability of return and reintegration within communities in Dili was subject to pressures around access to land and property, jobs, and resources. What seemed to be durable solutions in some cases proved to be unsustainable within the context of the 2006 crisis. The link between the 1999 return process and the 2006 violence was made explicit by some government officials who stated that the international community should not have supported the “migration” of people to the capital in the post1999 context. That is, several government officials suggested that support should only have been provided for returns to displaced persons’ communities of origin, primarily outside the capital.26 This sentiment was also reflected in frequent calls for the idps to “return to the districts.” These statements were in fact reflected in policy, as the government provided material and transportation to idps who opted to “move back” to the dis-

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tricts.27 The state and the international community paid little attention, however, to the impact of the large-scale movement of people on the capital’s community dynamics. Ironically, the growing tensions in the capital were concurrent with an increasing belief in the need to shift away from Dili-centred assistance. The perceived need to re-focus international and national development assistance on the provision of services and to support economic development and poverty alleviation, with a particular focus on rural areas, was reflected in the government’s rhetoric and outreach to rural areas, including through Mari Alkatiri’s Open Governance initiative, in which the prime minister and other cabinet ministers toured the countryside to consult with rural populations. This effort contrasts to some extent with what some perceived as an over-emphasis on state- and institution-building in the capital.28 The mass return process within Timor-Leste in the aftermath of the 1999 violence had consequences for community dynamics that went beyond the scope of the country’s truth and reconciliation commission. The vast majority of the thousands of people who returned after 1999 did not initiate a crp. While some of the tensions that led to the violence in Dili in 2006 began in the political events that took place during the period the cavr covered, communal violence and displacement were to a large extent driven by the settling of personal scores with roots in a series of factors not necessarily related to the cavr’s mandate, including competition (and jealousy) over housing, resources, and jobs. These in turn exposed in many cases the fragility of the returns that took place after 1999.29 In light of this, two of the recommendations made by the cavr Chega! report seem particularly important and prescient. As discussed, the report calls for the establishment of a community-focused conflict prevention and resolution mechanism to deal with past political issues and contemporary challenges to peace and stability. It also proposes that the government institute an inquiry into land disputes with a view toward promoting their peaceful mediation (cavr 2005, part 11, recc. 8.1–8.4, 3.4.3). The government has not taken up these recommendations, for reasons outlined above, but they remain highly relevant and should be implemented. Indeed, I think that the government and its international partners must recognize that the report’s recommendations have wide-ranging implications for the nature of the economic development policies they promote, the role of the state as a development actor, its importance in the process of the creation of national identity, and the manner in which populations are consulted and included in the development process.

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The cavr’s role in supporting the return and resettlement of those displaced during the post-consultation violence had several dimensions. On one level, it sent a clear and broad message that the government was committed to reconciliation and acknowledged the tremendous collective suffering of the people and the general contribution of the civilian population to the liberation struggle. In addition, its inclusion of the civil war period within its mandate sent the important political message that the leadership acknowledged the past and would cooperate in the nation’s interests. Public hearings, community outreach, and the crps worked to create local narratives and to facilitate reconciliation (at least as defined by the crps) at the community level. In the post-consultation environment, then, the cavr, alongside dialogue initiatives at the border, helped to foster an environment in which fear of reprisal was limited, which in turn facilitated return and reconciliation processes. The cavr was, by its own admission, not meant to be the sole pillar on which stability would rest. Truth-telling was useful and important, but it was not sufficient to ensure long-term stability and reconciliation. Stability in general, and stability as it relates to the resolution of displacement more specifically, depends on a variety of political, economic, and social factors. These require continuous attention and policy adaptations. In postcrisis settings, the historical narratives and perceptions of grievances among both the population at large and the previously displaced in particular must be integrated into development approaches, lest they reignite tensions or become the target of manipulation and thus allow for the evolution of new schisms. C ON C LU S I ON

The cavr represented an important and broad effort to address the varied reconciliation needs of a nation emerging from a prolonged period of conflict, and surpassed many other truth commissions in its contributions to addressing forced migration as a human rights concern and endeavouring to support the sustainable resolution of displacement, particularly through crps. However, the cavr’s contributions to durable solutions to displacement were ultimately modest, as factors other than those strictly linked to its mandate influenced the sustainability of post-1999 returns of the displaced. In Timor-Leste, socio-economic and political pressures, and their impacts on the country’s elite bargain, evolved in directions that at times undermined the sustainability of solutions to displacement. Politi-

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cal rhetoric and competition for resources, power, and legitimacy in the lead-up to the 2006 displacement crisis transformed community perceptions of belonging. The widely held popular understanding that the crisis was the direct result of the leadership’s unwillingness to reconcile in the nation’s interests challenged the edifice on which the cavr was built. The popular perception seemed to be that while the leadership could continue to pursue old grievances through political machinations, the masses were expected to reconcile. The vacuum in law and order that resulted from the initial events of the 2006 crisis opened the way for the settling of scores relating to a wide range of grievances and a reconsideration of the merits of reconciliation as such. In light of the limits of its mandate, there seems to be little else that the commission could have done to advance the causes of reconciliation and durable returns. Durable solutions to displacement depend on general stability, which depends on the nature of the country’s political settlement (Khan 2005). While truth commissions can certainly contribute by developing a narrative conducive to reconciliation and accommodation, this requires continued attention and cannot be guaranteed by a “development as usual” approach as the proponents of the liberal peace framework propose. In fact, while obviously not its intent, I argue that the development and implementation of what was without doubt a very comprehensive truth-telling process oddly helped isolate truth-telling efforts from broader debates on appropriate development approaches and efforts to address the inherent tensions contained in the nation-building process. While the cavr was not solely, or even primarily, responsible for the compartmentalization of development, peacebuilding, and reconciliation efforts in the country, I feel that it was unwittingly used to this end. It allowed those engaged in development activities to attribute responsibility for issues related to the past to the cavr and thus to disconnect these considerations from their strategies. Complex post-crisis settings require approaches to development, institution-building, governance, and justice that are sensitive to latent grievances, divergent historical views, and the potential unintended consequences of orthodox economic development theory. Such approaches were unfortunately lacking in Timor-Leste – and this gap helped set the stage for the 2006 crisis. As Borer (2006) notes, the academic literature on truth-telling, peacebuilding, and transitional justice can be quite nuanced, but this nuance was largely lost in the field, where operational realities dictated program-

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ming and where familiarity with the academic literature was at any rate very limited. Truth-telling’s potential power was thus exaggerated or overestimated. To its credit, the commission recognized the fragility of the post-conflict environment in the country and noted that long-term success would require complementary activities and policies to help communities respond to evolving tensions and dynamics, both related and unrelated to its mandate. Regarding displacement and durable solutions, the experience in Timor-Leste illustrates that the large-scale movement of people during the post-1999 return process itself impacted community dynamics and reconciliation prospects. The state and the international community did not help communities adapt to the changes in socio-economic conditions brought about by the return (and urban migration) of thousands of people. The wide-ranging socio-political impact of large-scale population movements, including return and migration more generally, must be considered from the beginning as an essential element of the policy framework developed in support of durable solutions as well as reconciliation. More critically, as Di John (2008), Cramer (2006), and others argue, any truth-telling process must be conceptually integrated into a framework that recognizes and attempts to respond to the instability of political settlements that necessarily develop during the nation and state-building processes. The compartmentalization of the return and resettlement process, and indeed the truth-telling process, and the inability or unwillingness of development actors and the Timorese leadership to pay due heed to the possibility of renewed conflict within post-occupation Timor-Leste and adapt its development approach accordingly, proved extremely costly. Whether these lessons have been learned remains to be seen.

notes 1 This chapter builds on a case study prepared as part of a collaborative examination of displacement and transitional justice undertaken by the International Centre for Transitional Justice and the Brookings-lse Project on Internal Displacement (see Vieira 2012). 2 For an introduction to the links between displacement and truth-telling processes, see Bradley (2012). I differentiate between state-building, which focuses on the construction of the institutional edifice of the state and was the emphasis of the international community’s work in Timor-Leste, and nation-building, as a process that aims to support the development or con-

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solidation of identities around a national construct (see, e.g., Lemay-Hebert 2009). As Waldorf (2012, 173) explains, “liberal peacebuilding efforts are directed at building the rule of law, instituting electoral democracy, and carrying out neoliberal economic reforms.” See also Di John (2008) and Cramer (2006). Solutions to displacement include return, local integration, and resettlement/relocation. See for example the relevant sections of the cavr’s 2005 final report, Chega! Final Report of the Commission for Reception, Truth, and Reconciliation in TimorLeste. In particular, part 7 provides substantial details regarding specific violations, such as chapter 7.3 on “Forced Displacement and Famine.” For an in-depth discussion of traditional conceptions of justice within Timorese society, see Babo-Soares (2004) and Meitzer Yoder (2003). While the 2006 displacement crisis led to government programs aimed to assist the return of the displaced through mediated solutions (e.g., dialogue processes and community meetings), the prospect of a revival of the cavr process to deal with the events of 2006 was never seriously raised, either within government or the international community. For a concise summary of the chronology and framework of the commission see Hayner (2003, chapter 4). According to the cavr’s (2003) Forced Displacement and Famine: National Public Hearing, the public hearing was held from 28–29 July 2003, and focused on the events relating to the “great famine of 1977–79.” According to the publication, it did not seek to reach conclusions on the subject, but rather to provide an opportunity for survivors to relate their experiences and the experiences of those who perished. See untaet Regulation 2001/10, which states: “In undertaking its functions under Part IV, the Commission may give priority to facilitating Community Reconciliation Processes in respect of acts committed during 1999.” While this is the case, particularly among the leadership, a substantial movement remains active in the search for justice, inclusive of information on missing family members. See for example the work of Aliansi Nasionál Timor-Leste ba Tribunál Internasionál (Timor-Leste National Alliance for an International Tribunal). While the cavr’s own research seems to indicate positive results, others have questioned the processes’ overall impact on rebuilding deeper confidence, trust, and reconciliation after decades of Indonesian manipulation and manufacturing of social cleavages through, for example, the use of informants and collaborators. See for example Hayner (2011).

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13 For a critique of the liberal peace assumptions, including widely accepted causal relations between unemployment and poverty and violent conflict, see for example Cramer (2002) and Pugh (2005). 14 See Cramer (2006) and, specifically on East Timor, Engel (2007). 15 Timor-Leste achieved independence on 20 May 2002. 16 For a detailed narrative of the events leading up to the 2006 crisis see the Report of the United Nations Independent Special Commission of Inquiry for Timor-Leste, October 2006. For a more detailed analysis of its underlying causes, see Scambary (2009). 17 These political events included the death of one of the principal armed services “rebels” involved in disputes with the government and the negotiated resolution of a dispute with 600 petitioners. The latter were former members of the armed services who petitioned the president to denounce perceived discrimination and eventually fled to the mountains with their weapons. 18 For a detailed overview, see the International Organization for Migration’s periodic Return Monitoring Reports (www.iom.int/jahia/Jahia/activities /asia-and-oceania/timor-leste). 19 See “‘Hamatuk Hari’l Futuru’: A National Recovery Strategy,” issued by the Office of the Vice-Prime Minister of the Democratic Republic of TimorLeste (2007). 20 For a discussion of the recovery package and whether it represented a form of redress, see Van der Auweraert (2012). 21 The first government titled its response “Simu Malu” (Mutual Acceptance). The working group, which eventually evolved into one of the five pillars of the national recovery strategy under the second government, was called “Hamutuk Harii Konfiansa” (Building trust together). 22 I of course understand that the cavr report, which contains the commission’s detailed recommendations, was not widely circulated, was released only in 2005, and was limited in its impact because of the country’s low literacy rates. That said, the framework proposed above serves to highlight the challenges the cavr faced in making its conception of reconciliation a point of departure for those involved in the country’s political struggles. 23 This assessment is based on my deep involvement in the process and discussions leading to the establishment of the unit. 24 For an interesting analysis of these issues, see Rawski (2002) and Kammen (2010). 25 I did not encounter a single mention of the report in my work in TimorLeste in support of the government’s 2006 post-crisis response. 26 Personal conversations and discussions with various government staff from 2006 to 2009.

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27 This policy was abandoned in practice after it became evident that the vast majority of the scheme’s beneficiaries had accepted the support but nonetheless eventually returned to the capital. 28 See for example the opening statement of Mari Alkatiri at the 2006 TimorLeste Development Partners Meeting. 29 A similar dynamic applies to other migrants to Dili, including those who migrated during the Indonesian occupation.

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12 The Challenge of Prosecuting Forced Displacement at the International Criminal Court: The Case of Kenya PA IG E MO RROW AND JENNIFER WINSTANLEY

Following the 2007 Kenyan presidential election, violence broke out as protesters reacted angrily to poll results that observers declared flawed. The conflict escalated as mobs blocked highways, police fired into crowds, and families were forcibly evicted from regions where they were labelled as ethnic outsiders. In the closing hours of the vote tabulation, presidential opposition candidate Raila Odinga saw his lead of more than one million votes disappear under “opaque and highly irregular proceedings,” leading to incumbent president Mwai Kibaki winning by a narrow margin (Human Rights Watch 2008, 22). The post-election clashes pitted the supporters of Kibaki’s Party of National Unity (pnu) against the supporters of Odinga’s Orange Democratic Movement (odm). The violence lasted for almost two months, and left more than a thousand dead and approximately 600,000 internally displaced. Over 310,000 of the internally displaced persons (idps) fled to live in host communities, many in urban centres with friends or family, while the remaining 350,000 took refuge in approximately 118 camps, primarily in the Rift Valley (idmc 2010, 3).1 The violence ended when on 28 February 2008, under the stewardship of former un Secretary-General Kofi Annan, Kibaki finally negotiated a power-sharing agreement with Odinga. The agreement left Kibaki in place for another term and moved Odinga into the newly created position of prime minister. Two years later, in March 2010, after repeatedly unfulfilled promises by the Government of Kenya to implement a process to

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prosecute the perpetrators, the International Criminal Court (icc) authorized the Office of the Prosecutor to open an investigation into the postelection violence. The investigation led to the issuance of summonses to appear against six Kenyans for their role in the electoral violence.2 The Kenya cases at the icc are important for a variety of reasons, including their treatment of forced displacement as a crime against humanity.3 Deportation was recognized as a crime against humanity in the primary international criminal instruments prior to the establishment of the icc, namely the Nuremberg Charter, the Tokyo Charter, the Allied Control Council Law No. 10, and the statutes of the international criminal tribunals for the former Yugoslavia (icty) and Rwanda (ictr), but these instruments did not explicitly protect those affected by internal displacement. Judicial interpretation of deportation as a crime against humanity nevertheless incorporated the crime of forced population transfer within a state’s borders.4 The enabling statute of the icc, the Rome Statute, removes this potential ambiguity by including “deportation or forcible transfer of population” within its list of crimes against humanity. The Kenya cases are noteworthy for being the first to interpret the crime as articulated under the Rome Statute. The Kenya cases have also formed part of the ongoing debate regarding the icc’s overall effectiveness and ability to address impunity.5 One of the main challenges for the court, identified by academics and commentators including current and past judges of the icc and other international criminal tribunals, is the lack of an enforcement mechanism in the Rome Statute against state parties who refuse to cooperate with the court. State cooperation is crucial to ensure the court’s efficacy and efficiency, from arresting accused persons to preserving and facilitating access to evidence to protecting witnesses. The Kenya cases illustrate how significant the consequences can be for the court when a state party chooses not to cooperate with, or chooses to actively obstruct, the icc’s prosecution of its citizens. The lack of cooperation on the part of the government of Kenya has been raised by the prosecutor from the beginning of the case, and has recently and most notably been cited as the reason that the charges against Uhuru Kenyatta were dropped. When the charges against Kenyatta were withdrawn in December 2014, the Office of the Prosecutor said that the Kenyan government had refused to hand over evidence vital to the case (bbc 2014). Debates on the efficacy of the court notwithstanding, the trials will make an important contribution to the development of the international jurisprudence on forced displacement as a crime against humanity.

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There has been relatively little academic discussion of forced displacement as a crime under international law. In this chapter we add to the emerging debate by examining the icc’s treatment of internal forced displacement, which is articulated in the icc’s Rome Statute as the crime against humanity of deportation or forcible population transfer. Our main contribution in this chapter is a legal analysis of the challenges surrounding the prosecution of forced displacement at international courts and tribunals, particularly the icc. The prosecution of some of the individuals alleged to be responsible for forcible transfer of population during the post-election violence in Kenya is the first prosecution of forced displacement as a crime against humanity to move forward at the icc.6 The context in which the violence occurred raises challenges for the prosecution and the court to define the circumstances in which the international community, acting through the icc, will assume jurisdiction over the prosecution of crimes against humanity, including forced displacement. We examine the legal process and standards for prosecuting forced displacement at the icc, bringing into focus some of the difficulties associated with attempting to use international legal mechanisms to address displacement as a crime against humanity. To begin, we provide some brief background on forced displacement in Kenya and the limited accessibility of redress for displacement through domestic channels before discussing international efforts to ensure criminal accountability for displacement through the icc. We go on to analyze the elements of displacement as a crime against humanity as laid out in the Rome Statute, and consider some of the legal challenges associated with demonstrating that the displacement that occurred in Kenya in the context of the post-election violence constitutes a crime against humanity. FO RC E D D I S P L AC E M E N T I N K E N YA

Kenya is no stranger to violent elections. The 1992 and 1997 general elections were marred by violence and allegations of electoral fraud. Although the government characterized the violence as outbursts of ethnic conflict, observers suggest that politicians sponsored the hostilities to rally votes in supportive ethnic communities (see, e.g., Human Rights Watch 2008, 11). The president’s rising power and the lack of effective checks and balances on government increased the incentive to use ethnic identity to obtain political influence and access resources, especially land (Dialogue Kenya 2008). A pattern of unprosecuted violence contributed to a “culture of

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impunity” (Bjork and Goerbutus 2011); this was aggravated by high levels of poverty and unemployment, which created incentives for youths to take part in violence through gangs.7 Chronicling displacement caused by violence surrounding the 1992, 1997, and 2002 elections, Kenya’s Commission of Inquiry into Post-election Violence described internal displacement as a “permanent feature” of the country’s political landscape (cipev 2008, 271). Limited Reparations for and Resettlement of idps Despite the longstanding pattern of displacement following presidential elections, idps’ needs for permanent housing and resettlement have not been systematically addressed.8 This has exacerbated their vulnerability to repeated displacement. Civil reparations, including restitution, have been used to some extent to redress displacement in Kenya, but with limited success.9 For example, the Kenyan government created a Task Force on Resettlement that was allocated 1.3 billion shillings (roughly US$16.5 million) in 2007 to purchase land for idps’ resettlement, although there were credible allegations of corruption associated with the allocation of funds (Klopp 2008, 19). After the 2007–08 post-election violence, the newly formed coalition government turned its attention to the plight of those displaced by the violence. The Ministry of State for Special Programmes received the task of providing humanitarian relief and reconstruction. The ministry launched Operation Rudi Nyumbani (Operation return home) and the related operations Tujenge Pamoja (Build together) and Ujirani Mwema (Good neighbourliness), all of which were managed at the provincial level and tended to lack adequate organization and funding. Operation Rudi Nyumbani, a program linked to the government’s plan to close all idp camps located in stadiums and public showgrounds, resulted in the return of about half of the displaced households to their homes. In addition, the government paid 7.977 billion shillings in relief and assistance to help idps reconstruct damaged homes and re-establish their livelihoods (kndr Monitoring Project 2011, para. 65). However, the operations moved slowly and had a limited and unequal impact.10 Despite its many shortcomings, after Operation Rudi Nyumbani the government ordered the provincial administration to dismantle the camps, forcing people out and sometimes into hostile communities. As many as 300,000 idps were left to fend for themselves without any support or reintegration programs (Klopp, Githinji, and Karuoya 2010, 8).

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The Kenya Human Rights Commission (khrc) has reported that most of the displaced were living in deplorable conditions with poor housing, lack of food, and lack of safe water.11 It also observed the prevalence of sexual and gender-based violence, the lack of maternal healthcare, and the exposure of children and women to extreme weather conditions (khrc 2008, 27). Evidence of the gendered nature of the harms caused by displacement in Kenya aligns with a growing awareness of the gendered aspects of displacement, which have in the past been insufficiently addressed (Sankey 2013, 4). Under pressure from civil society, the government slowly responded by expanding its housing program.12 However, the resettlement program’s exclusive focus on compensation through the provision of land fails to consider that many idps have no experience with agriculture and gained their livelihoods from small businesses, which excludes those idps from access to any effective remedy (kndr Monitoring Project 2011, para. 75). Furthermore, many idps have been reluctant to return to their communities of origin due to the failure to prosecute low-ranking perpetrators of the violence (irin 2008). A Kenyan law for idps (the Internally Displaced Persons and Affected Communities Act) and a new national policy for idps, which were both adopted in late 2012, provide a framework for idp protection and assistance and should be implemented by the government. However, there has been little tangible progress and the un special rapporteur on the human rights of idps has noted the persistence of multiple barriers to achieving a durable solution to internal displacement in Kenya, including lack of secure land tenure, access to education and health services, and livelihood opportunities, as well as discrimination (ohchr 2014).13 The effective resettlement and redress of idps is a responsibility of the Kenyan government and an important indicator of effectual peacebuilding (Klopp, Githinji, and Karuoya 2010, 1). As this discussion demonstrates, domestic efforts to resolve and redress displacement in Kenya were limited, which raises the question of the role international-level efforts may play in this process, including through the icc. Domestic and International Criminal Accountability for Displacement Domestic prosecution of both high- and lower-ranking perpetrators of post-election violence is an important aspect of justice and reconciliation processes (Mohochi 2011; Human Rights Watch 2011). At their best, prosecution efforts signal that the cycle of impunity for politically motivat-

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ed violence is ending, and the justice system is willing and able to respond.14 After the violence ended, a debate emerged over whether to prosecute or grant amnesty to perpetrators of the violence (kndr Monitoring Project 2011, para. 33).15 The amnesty debate was divided along party lines, which signalled the beginning of the government’s inability to reach a unified position on how to address the post-election violence. Consequently, suspected perpetrators have not been held accountable, post-election violence cases have been poorly prosecuted, and the public has become increasingly sceptical of the government’s commitment to fight impunity (kndr Monitoring Project 2011, paras. 34–5). This is the case even though both the government and civil society recognized that fighting impunity was a critical part of efforts to address the root causes of the violence, and politicians promised reforms to prevent a recurrence of violence, establishing the Commission of Inquiry into Post-election Violence (cipev, popularly referred to as the Waki Commission) to investigate and create a list of suspected perpetrators. Yet seven years after the violence occurred, there has been little progress to put offenders on trial in Kenya. Domestic efforts to address the post-election violence have focused instead on the creation of the controversial Kenyan Truth, Justice and Reconciliation Commission (tjrc).16 Kenya was set to establish a national tribunal to prosecute those responsible, but the government failed to meet a September 2008 deadline to establish this body. Constitutional amendments that would have established a special tribunal, as the Waki Commission recommended, failed to obtain the requisite support in Parliament. Proposals to use the standard judicial apparatus instead of a specially constituted tribunal similarly never gained traction. As a result, Kenyan courts have not prosecuted even one high-ranking Kenyan official for his or her role in the violence – or in any large-scale ethno-political violence since the early 1990s (Brown and Sriram 2012). Only six low-ranking individuals had been convicted in domestic courts of serious crimes as of December 2011 (Human Rights Watch 2011, 40).17 In response to this pattern of inaction, the Office of the icc Prosecutor launched an investigation into the Kenyan post-election violence.18 The Jurisdiction of the International Criminal Court The icc was established in July 2002 as the first permanent international mechanism to try individuals responsible for international crimes including genocide, war crimes, and crimes against humanity. The icc is intend-

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ed to fill the impunity gap when, at the national level, there is a lack of either capacity or political will to try suspected perpetrators of international crimes. In a controversial and unprecedented move, the Office of the icc Prosecutor used its proprio motu powers for the first time to launch an investigation in Kenya in 2009 without waiting for a referral from a un member state or the Security Council. Kenya ratified the enabling treaty of the icc, the Rome Statute, on 15 March 2005. Ratification gave the icc jurisdiction over war crimes, crimes against humanity, and genocide committed by Kenyan nationals or on Kenyan territory since the Rome Statute came into force on 1 July 2002. However, the prosecutor’s power to investigate and prosecute international crimes is limited to instances where a state is unwilling or unable to investigate (Rome Statute, art. 17). The exercise of the prosecutor’s proprio motu powers in the Kenya case is important because it sends a message that the icc is prepared to take an active role in prosecuting crimes under its jurisdiction, rather than waiting to intervene at the behest of a member state or the Security Council. In this case, the prosecutor obtained authorization from the icc pre-trial chamber to open an investigation after receiving reports on the post-election violence from civil society organizations, political parties, and the government of Kenya itself. Specifically, the prosecutor received six boxes of material compiled by the Waki Commission, including a sealed envelope with a list of suspects identified as most responsible for the violence. The icc has jurisdiction to prosecute the crime of forced displacement in situations where neither an international nor non-international armed conflict is present, provided that the forced displacement occurs in the context of “a widespread or systematic attack directed against any civilian population” (Rome Statute, art. 7(1)). When it occurs in this context, forced displacement qualifies as a crime against humanity and is therefore under icc jurisdiction. Deportation and forcible transfer of population are crimes against humanity under the statutes of both the icc and the icty (icty Statute, art. 5(d)(1)).19 Much of our understanding of the international crime of forced displacement derives from the icty’s jurisprudence. The icty characterized crimes against humanity as violations that “shock the conscience of mankind and warrant intervention by the international community precisely because they are not isolated, random acts of individuals, but instead result from a deliberate attempt to target a civilian population” (Prosecutor v. Tadic, IT-94-1-T (icty, 7 May 1997), para. 653). The initial task in every case that comes before the court is to determine whether the

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alleged crimes, including instances of forced displacement, meet this threshold such that international intervention in the form of icc prosecutions is warranted. If the icc concludes, as the majority of judges did in this case, that some or all of the charges alleged constitute crimes against humanity, the case will proceed to trial. Allegations against the Ocampo Six Initially, charges were laid against six individuals for their alleged involvement in the post-election violence: William Ruto, Henry Kosgey, and Joshua Sang, all associated with the odm and the Kalenjin ethnic group, and Francis Muthaura, Uhuru Kenyatta, and Mohammed Ali, all associated with the pnu. However, the charges against Kosgey and Ali were not confirmed, as the Pre-trial Chamber II (the chamber) found that there was insufficient evidence against them. The Office of the Prosecutor dropped the charges against Muthaura on 11 March 2013, after a key witness recanted his statements linking Muthaura to planning the post-election violence. The charges against Kenyatta were dropped in 2015. The charges against Ruto and Sang have proceeded to trial. william ruto and joshua sang William Samoei Ruto and Joshua Arap Sang were charged with murder, forcible transfer of population, and persecution. Ruto was a high-ranking politician and public official at the time of the violence, holding the position of minister of higher education. Sang was a reporter and executive of Kass fm, a Kalenjin language radio station. The prosecution alleges that the accused created a network (generally referred to as the Network) that was used to implement an organizational policy to commit crimes in order to gain power in the Rift Valley, and to punish and expel from the Rift Valley those who were perceived to support the pnu. The alleged Network had five branches: political, media, financial, tribal, and military. Each branch existed for a legitimate purpose prior to the 2007 elections, however, as early as 2006 the suspects allegedly capitalized on the existing structure and their roles in Kalenjin society to align the Network for criminal purposes. Ruto and Sang were initially charged as co-perpetrators who committed or contributed to the commission of crimes against humanity, including through deportation or forcible transfer of population. The forcible transfer allegedly took place in locations including Turbo town, the greater Eldoret area, Kapsabet town, and Nandi Hills town in the Uasin Gishu and Nandi Districts of Kenya (icc Pre-trial Chamber II 2011a, para.

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31). Allegedly, the Network Ruto headed attacked Turbo town on the last two days of 2007, with individuals pouring petrol on the houses of suspected pnu supporters before setting them afire. Thousands of displaced persons fled to take shelter at police posts. The chamber found that there were substantial grounds to believe that acts of burning, property destruction, and targeted killings of pnu supporters coerced them to flee the area (icc Pre-trial Chamber II 2012b, para. 251). The chamber similarly found substantial grounds to believe that Network perpetrators forcibly displaced pnu supporters in the Eldoret area, Kapsabet town, and Nandi Hills town (icc Pre-trial Chamber II 2012b, paras. 251, 255, 261, 266). uhuru kenyatta Uhuru Muigai Kenyatta was charged with murder, forcible transfer of population, rape, persecution, and other inhumane acts. Kenyatta is the son of Kenya’s founding president and was at the time of the post-election violence the deputy prime minister and the finance minister. Since the charges were confirmed, he has been elected president, with Ruto as deputy president. Kenyatta is charged with developing and executing a plan to attack perceived odm supporters in order to keep the pnu in power. These attacks were undertaken in response to odm attacks and protests. He also allegedly collaborated with the Mungiki criminal organization to organize retaliatory attacks against civilian supporters of the odm. Kenyatta was charged as a co-perpetrator who committed or contributed to the commission of crimes against humanity including deportation or forcible transfer of population. This alleged forcible transfer occurred during the last week of January 2008, when Mungiki and pro-pnu youth attacked perceived supporters of the odm in or around Nakuru town and Naivasha town, which resulted in the displacement of thousands of people (icc Pre-trial Chamber II 2011b, para. 17; 2012a, para. 107). Significance of the Pre-trial Decisions in the Kenya Cases The Pre-trial Chamber issued its decision authorizing the Office of the Prosecutor to open an investigation into the post-election violence on 31 March 2010.20 At this stage, the prosecutor had to prove that there was reasonable basis to believe that crimes against humanity within the court’s jurisdiction had been committed. Following its investigation, the prosecutor applied to the court to issue summonses to appear against the accused.

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The standard of proof at each stage of the trial process is increasingly onerous. To summon the accused to appear, the chamber must have reasonable grounds to believe that the accused committed the listed offences. At the next stage, the confirmation of charges, the chamber must have substantial grounds to believe that the accused committed the relevant offence. At trial, the prosecutor must establish the guilt of each accused beyond a reasonable doubt to obtain a conviction. One of the three chamber judges, Judge Hans-Peter Kaul, dissented on the decisions to confirm the charges, as he previously did for the decisions to issue summons to the suspects. In contrast with the majority, Judge Kaul concluded that the crimes do not satisfy the elements of crimes against humanity, and are therefore not properly subject to international prosecution under the provisions of the Rome Statute. Below, we discuss the difference in legal analysis and the significance of the different conclusion reached. E L E M E N TS O F THE C R I M E OF FORC E D D I S P L AC E M E N T

In this section, we analyze the post-election violence through the lens of the elements of crimes against humanity as the Rome Statute defines them. The analysis is informed by the jurisprudence of the icty and the ictr, as well as icc pre-trial decisions. At the icty and ictr, forced displacement is prosecuted as a crime against humanity under the categories of “deportation,” “persecution,” and “other inhumane acts” (icty 1993, article 5(d), (h), (i); ictr 1994, article 3(d), (h), (i)). The way these tribunals interpret the crime is instructive for defining the elements of forced displacement as a crime under the icc’s jurisdiction and highlighting the challenges the prosecution faced in this case. The decisions written by the majority of the Pre-trial Chamber to date find that crimes against humanity were committed in Kenya, but the standard of proof at trial will be higher and it is far from clear that any convictions will be entered at the Hague. Pursuant to article 7(2)(d) of the Rome Statute, deportation or forcible transfer of population means the “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.” The Elements of Crimes were drafted to guide the interpretation of certain provisions of the Rome Statute. The five elements of the crime against humanity of deportation or forcible transfer of population are:

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1 The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive actions. 2 Such person or persons were lawfully present in the area from which they were so deported or transferred. 3 The perpetrator was aware of the factual circumstances that established the lawfulness of such presence. 4 The conduct was committed as part of a widespread or systematic attack against a civilian population. 5 The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. In simple terms, forced displacement means that people are removed against their will or without a genuine choice (Prosecutor v. Popovic et al., IT-05-88-T (icty, 10 June 2010), para. 920). The Elements of Crimes clarify the meaning of “forced” or “forcibly”: the term “is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or another person, or by taking advantage of a coercive environment.” The chamber, in its Confirmation of Charges decision in the Kenya case, has further elaborated that forced displacement is an “open-conduct crime,” meaning that the perpetrator may commit one of several different conducts that amount to expulsion or other coercive acts and that force the victim to leave the area (icc Pre-trial Chamber II 2012b, para. 244). The prosecutor must then establish a causal link between the acts of the perpetrator and the movement of the victim (para. 245). In the next sections of this chapter, we analyze the elements of the crime of forced displacement, particularly as they relate to the Kenyan cases before the icc. Element One In its Confirmation of Charges decision for the defendants Muthaura and Kenyatta, the chamber concluded that the prosecutor’s evidence established that the destruction of homes in residential areas, the brutality of the killings and injuries, the rape of perceived odm supporters, and the distribution of public announcements to the effect that “All Luos must leave” amounted to coercion that caused the residents of Nakuru and

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Naivasha to leave their homes (icc Pre-trial Chamber II 2012a, para. 244). Similarly, in its Confirmation of Charges against Ruto and Sang, the chamber concluded that there were substantial grounds to believe that forced displacement occurred in Turbo Town, the Greater Eldoret Area, Kapsabet Town, and Nandi Hills town (paras. 249, 254, 259, 264). The evidence established, for example, that the acts of burning, destruction of property, and killing of targeted pnu supporters caused victims to flee the area (icc Pre-trial Chamber II 2012b, para. 251). Elements Two and Three The question of prior lawful presence is an element of the crime of forced displacement that tends to be addressed perfunctorily as it requires only a determination that there was no legal justification for the displacement. In the Authorization Decision, the chamber found that “the available information does not include any contentions to the effect that the targeted communities were not lawfully present in the area from which they were transferred or that such transfer could have been justified under international law” (para. 165). This was affirmed in the Confirmation of Charges of each group of suspects, with that against Kenyatta and others noting that the lawful presence of persons displaced was not in dispute and the established facts did not reveal any ground permitting the displacement under international law (icc Pre-trial Chamber II 2012a, para. 253; 2012b, paras. 251, 261, 266). Element Four The terms “widespread” and “systematic” are included in the articles on crimes against humanity in the ictr and Rome Statutes. As the ictr defined in Prosecutor v. Jean-Paul Akayesu (ICTR-96-4-T (ictr, 2 September 1998)) and Kayishema (ICTR-95-1-I (ictr, 21 May 1999), para. 123), “widespread” refers to an attack that is “directed against a multiplicity of victims.” The same cases defined “systematic” as “thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources” (Prosecutor v. Jean-Paul Akayesu, para. 580) and “carried out pursuant to a preconceived policy or plan” (Prosecutor v. Kayishema, para. 123). In Kenya, three types of attacks led to charges of crimes against humanity. First, there were premeditated attacks in the Rift Valley and urban slums on members of the Kikuyu and other ethnic groups associated with

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the incumbent government. The prosecutor framed his allegations in connection with these cases as an attack that was organized and followed a regular pattern based on a common policy to internally displace ethnic “outsiders” using substantial public and private resources. The chamber recognized this attack by the Network as both widespread and systematic, and found that the evidence showed it was “massive, frequent, carried out collectively with considerable seriousness and directed against a large number of civilians” (icc Pre-trial Chamber II 2012b, para. 176). Second, police shot mostly unarmed demonstrators, primarily around Nairobi, which led to the charges against former police commissioner Ali. Third, there were revenge attacks mainly in Nairobi, Central Province, and the Rift Valley against ethnic groups that were perceived to support the opposition by members of the Kikuyu and other ethnic groups, including through the Mungiki, a somewhat structured illegal gang. “Spontaneous rioting” by Luos after the Electoral Commission announced that the incumbent President Kibaki had beaten Luo presidential candidate Odinga by a narrow margin did not lead to charges at the international court (Brown and Sriram 2012, 247). The requirement that the “attack” be “against a civilian population” is not a contentious issue in the Kenya case. In the chamber’s view, the civilian population targeted can include a group defined by its (perceived) political affiliation (icc Pre-trial Chamber II 2012a, para. 110), and in both cases the chamber found substantial grounds to believe that there was an attack aimed at the civilian population. Element Five In order for forced displacement to constitute a crime against humanity, there must be a connection, or nexus, between the perpetrator’s conduct and the widespread or systematic attack leading to displacement (Chesterman 2000, 317). The Rome Statute does not require that the attack be instigated or directed by a state or organization, but specifies that it must be “pursuant to or in furtherance of” a state or organizational policy.21 The nexus requirement as the Rome Statute articulates it incorporates two elements. First, the conduct must relate to widespread or systematic attack. The icty discussed this requirement in Prosecutor v. Naletilic and Martinovic (IT-98-34-T (icty, 20 March 2003), para. 234) and found that the “acts of the accused must not be isolated but form part of the attack”; the act “by its nature and consequence, must objectively be a part of the attack.”

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The second requirement, that the perpetrator must have known that her or his conduct was part of or intended to be part of the attack, was made explicit in article 7 of the Rome Statute (Kim 2007, 48). The Elements of Crimes section of the statute clarifies that the last contextual element of crimes against humanity should “not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization. In the case of an emerging widespread or systematic attack against a civilian population, the intent clause of the last element is satisfied if the perpetrator intended to further such an attack.” In Kenya, the perpetrators used a combination of direct physical force and coercion to force individuals from their homes and from regions where they were portrayed as ethnic outsiders. The chamber found that, in most cases, idps were “forcibly evicted through direct physical violence against them, the burning of their houses and the destruction of their property” (icc Pre-trial Chamber II 2010, para. 164). The majority of the chamber concluded that there was prima facie evidence that the attack “was not a mere accumulation of spontaneous or isolated acts” (para. 117). Instead, a number of groups, including the police, local leaders, business people, and politicians affiliated with either the odm or pnu, “planned, direct or organized” the attacks. More specifically, the chamber inferred that the attacks were organized due to the “strategy and method” used: they were coordinated and well-organized, in some instances simultaneous or carried out in shifts, and on some occasions performed by groups of raiders arriving from different directions (para. 121). These findings support the conclusions that the violent incidents were part of, and intended to further, the attacks. FO RCE D D I S P L AC E M E N T I N K E N YA : A C R I M E AG A I N ST HU M A N I T Y ?

In order for forced displacement to be characterized as a crime against humanity and be subject to prosecution through the icc, it must, as article 7(1) of the Rome Statute indicates, be “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Article 7(2)(a) of the Rome Statute clarifies that an attack against a civilian population must be “pursuant to or in furtherance of a State or organizational policy” to constitute a crime against humanity. This element of the definition is particularly complex, so we discuss it in greater detail below.

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The definition of an “attack directed against a civilian population” creates an additional requirement, commonly referred to as the “policy requirement,” which means that if an attack is to be considered a crime against humanity, it must be not only widespread or systematic or both, but also connected to some form of policy. The Elements of Crimes elaborates that a “policy to commit such attack” requires that the state or organization actively promote or encourage the attack against a civilian population.22 The policy requirement is a contentious issue in the Kenyan prosecutions. The chamber’s preliminary decisions are divided on the appropriate scope of the definition of an organization and the elements required for a finding of a state or organizational policy. In practical terms, this is important as it determines whether or not forced displacement, and the other crimes committed in the post-election violence, can be prosecuted at the icc. Defining “Policy” The policy underlying the commission of crimes against humanity can come from either the state or a non-state organization. In Kenya, while the violence was politically motivated, there is no evidence of a state policy. The prosecutor therefore argued that in the case of the charges against Kenyatta and Muthuara, the policy originated with the Mungiki. In the case of Ruto and Sang, the policy emanated from the Network. A policy, as the icty defined in Prosecutor v. Blaskic (IT-95-14-T (icty, 3 March 2000), para. 205), “need not necessarily be declared expressly or even stated clearly and precisely. It may be surmised from the occurrence of a series of events.” The chamber adopted this reasoning and applied it in the Kenya case (icc Pre-trial Chamber II 2010, paras. 87–8). With regard to the charges against the defendants Muthaura and Kenyatta, the chamber found reasonable grounds to believe that the Mungiki acted pursuant to a policy to commit attacks on the basis that planning meetings occurred before the attacks in Nakuru, Naivasha, and Nairobi. Additional factors that contributed to the chamber’s conclusion included the fact that the majority of attackers were brought to the attack area from elsewhere; large quantities of crude weapons were purchased and distributed to attackers; and leaflets announcing the attack were circulated among the targeted population warning them to leave the area (icc Pretrial Chamber II 2011b, para. 23).

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With regard to the charges against Ruto and Sang, the prosecutor contended that Ruto, Kosgey and Sang established the Network of perpetrators belonging to the Kalenjin community in order to implement the agreed policy to “(i) punish and expel from the Rift Valley those perceived to support the pnu, namely, Kikuyu, Kamba and Kisii civilians; and (ii) gain power and create a uniform odm voting bloc” (icc Pre-trial Chamber II 2012b, para. 181). The analysis of the majority of the chamber did not consider the second branch of the policy the prosecutor articulated, but concluded that there were substantial grounds to believe that the Network promoted a policy that targeted members of the civilian population who supported the pnu in order to punish them and evict them from the Rift Valley (para. 216). Defining an “Organization” In addition to the question of whether there was a “policy to commit such an attack,” the icc must determine whether the groups involved are organizations. The chamber (2011b, para. 21) in the Muthaura Summons states, “the distinction between ‘organizations’ under article 7(2)(a) of the Statute and other groups that do not amount to such qualification should be drawn on whether the group has the capability to perform acts which infringe on basic human values.”23 In his dissent on the authorization decision, Judge Kaul reached a different conclusion, finding that an interpretation that takes into account decisions in previous cases as well as the justification for international jurisdiction over crimes against humanity leads to a more restricted reading of “organization” and requires that the organization be “state-like” (icc Pretrial Chamber II, Kaul Dissent, 2010, para. 66). In support of this conclusion, he noted that historic experience demonstrates that it is above all “the phenomenon of a State adopting either formally or in practice a policy to attack a civilian population, which leads to this very grave, if not enormous risk and threat of mass crimes and mass victimization” (para. 61). The conflicting definitions of an organization articulated by the majority and the dissenting Kaul resulted in contradictory conclusions on whether the groups responsible for the post-election violence in Kenya can be prosecuted through the icc. The majority of the chamber found that there were reasonable grounds to believe that the Mungiki operated as a “large and complex hierarchical structure featuring various levels of command and a clear division of duties in the command structure” (icc

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Pre-trial Chamber II 2011b, para 22), and therefore was properly characterized as an organization. The evidence cited in support of this finding was, inter alia, that the Mungiki used strict discipline to enforce obedience to internal rules, had a trained militant wing to carry out violent operations, controlled “core societal activities” in poor residential neighbourhoods, and levied informal taxes to support its services (icc Pre-trial Chamber II 2011b, para 22). With regard to the Network, the chamber found substantial grounds to believe that the establishment of the Network began in December 2006, and by December 2007, it qualified as an “organization” within article 7(2)(a) of the Rome Statute (icc Pre-trial Chamber II 2012b, para. 186). In making this finding, the chamber referred to evidence of a series of meetings that mark the development of the plan to establish the Network, including meetings where updates about weaponry were provided and the intention to attack pnu supporters and details on the means to execute the attack were discussed (paras. 194–5). The chamber found that the Network was under a responsible command and had an established hierarchy, with Ruto as the designated leader; that it had a supply of weapons; and that criminal activity against the civilian population was its primary purpose (paras. 197, 206–07). In contrast, Kaul considered neither the Mungiki nor the Network as an organization. He concluded that the Mungiki could not be considered an organization because it is a semi-structured, outlawed, violent criminal gang that engaged in organized crime and raised revenues from the illegal provision of certain community services to the local population, mainly in the slums of Nairobi, but relied heavily on external support (Kaul Dissent, icc Pre-trial Chamber II 2012a, para. 16). The Network also did not amount to an organization in Kaul’s view, as he found it to have been “essentially an amorphous alliance” that was responsible for “coordinating” members of a tribal group predisposed toward violence and with a fluctuating membership that “existed temporarily for a specific purpose” (Kaul Dissent, icc Pre-trial Chamber II 2012b, para. 12). Kaul further posited that in order for members of a group to form a state-like organization, they must meet additional prerequisites that were not met in Kenya because members of a tribe who instigated violence cannot alone constitute an organization. The significance of the different conclusions reached is that, under the majority’s interpretation, the icc has jurisdiction to hear the case. If the other two judges had not accepted Kaul’s analysis, the icc would have declined jurisdiction to hear all charges arising from the post-election vio-

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lence, with the result that the only effort to prosecute high-ranking perpetrators, including for their complicity in creating the country’s displacement crisis, would have been thwarted. While the majority’s decision sets an important precedent, debates on the nature and existence of the organizations and policies involved in the creation of displacement crises will likely continue to shape – and perhaps limit – efforts to uphold accountability for forced migration as a crime through international bodies such as the icc. C ON C LU S I ON : T H E C H A L L EN GE S OF P ROS E C U TI N G FORC E D D I S P L AC E M E N T AT THE I C C

Displacement is one of the most prevalent consequences of conflict, yet the legal mechanisms to address it persistently lag (Hovil 2012a, 4).24 The cases before the icc are therefore significant as they represent an attempt to extend some measure of protection and accountability to idps through international criminal law. Efforts to uphold responsibility for displacement in Kenya through the icc nevertheless face a host of challenges and limitations, both legal and political. From a legal perspective, the fundamental issue to be determined at the eventual trial of the alleged lead perpetrators of Kenya’s post-election violence is whether their crimes rise to the level of crimes against humanity. In addition, the icc prosecutor will have to establish a clear link between the perpetrators and the forced displacement sufficient to prove individual criminal liability. Both of these tasks raise complex legal questions. As the above discussion of the elements of the crime of forced transfer or deportation demonstrates, some of the most significant legal challenges pertain to the difficulty of proving that the actors involved in generating displacement represented an organization acting under a policy to commit attacks leading to forced migration. The progress of the Kenya prosecutions to date indicates the icc’s measured willingness to take a broad interpretation of the foundational elements of crimes against humanity, moving away from an interpretation that requires involvement on the part of the state or a state-like organization. This has proven to be of crucial importance in the Kenya cases. In its judgments to date, the majority of the chamber members have also shown considerable practical regard for the nature of the crime of forced displacement. For example, the chamber specifically acknowledged earlier jurisprudence that found that forced displacement is an “open conduct”

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crime. These findings are significant for the prosecution, allowing it leeway in terms of the evidence necessary to secure a conviction. Despite the significant legal – and political – hurdles that remain to be overcome, the icc’s proponents argue that the proceedings have the potential to reduce or deter future violence in Kenya, echoing the view that criminal trials play an important role in the transition to peace by denunciating criminal behaviour, providing accountability, and building public confidence in the state’s ability and willingness to uphold the rule of law (Annan 2004, 13). The Kenyan cases are illustrative of the exact circumstances in which the icc was designed to act – when the government is unwilling or unable to effectively prosecute at the domestic level. Kenya’s failure to break the cycle of impunity witnessed in previous election cycles suggests that the icc represents the only plausible chance to prosecute the instigators of forced displacement. The icc faced a blow to its credibility after the prosecution was forced to withdraw its allegations again Kenyatta. Nevertheless, the cases will have an enduring legacy as the first time that the icc prosecutor exercised his proprio motu powers to initiate an investigation without a referral from the un Security Council or a un member state, and will also stand out as the first instance where an international tribunal has intervened following electoral violence. Finally, the trials will play an important role in developing the international criminal law on forced displacement, outlining the elements of the crime and the evidence required to meet the burden of proof for conviction.

notes 1 In addition to idp sites in the Rift Valley, the displaced were spread across the Nyanza, western, coastal, and central provinces. Approximately 12,000 Kenyans were also reported to have fled to Uganda (ohchr 2008, 14). 2 Kenya has been a state party to the Rome Statute since 1 March 2005. 3 For a broad discussion of the prohibition of displacement in non-international conflicts, see Willms (2009). See Acquaviva (2011) for a general discussion of the connections between displacement and international crimes. 4 See, e.g., Prosecutor v. Radislav Krstic (IT-98-33-T (icty 2 August 2001), para. 521) where the Trial Chamber I noted, “[d]eportation presumes transfer beyond State borders, whereas forcible transfer relates to displacements within a State. However, this distinction has no bearing on the condemnation of such practices in international humanitarian law.” 5 One of the court’s main challenges is the lack of an enforcement mechanism in the Rome Statute against state parties who refuse to cooperate. State

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cooperation is crucial to ensure the efficacy and efficiency of the court, from arresting accused persons to preserving and facilitating access to evidence to protecting witnesses. The Kenya cases illustrate how significant the consequences can be when a state party chooses not to cooperate with, or to actively obstruct, the prosecution of its citizens at the icc (see, e.g, International Bar Association 2011; Kaul 2007; Phooko 2011). Debate on the broader aims of international criminal justice has been present in official discourse and constitutive documents of the various international tribunals created since the Nuremberg trials, although there is little empirical support for the proposition that international trials successfully achieve the aims that are often attributed to them – notably accountability for perpetrators, public denunciation of crimes, and justice for victims. Indictments issued in connection with the situations in Darfur, Sudan, and the Democratic Republic of the Congo, for instance, also include charges of forcible transfer of population. For example, in the North Rift Region, Kalenjin youth were reportedly paid to participate in raids (Crisis Group 2008). In Kenya, “resettlement” is often used to include not only relocation to other communities, but also support for idps returning to their areas of origin. Reparations include restitution, compensation, and rehabilitation. Restitution programs aim to restore the victim to the situation that would have existed had the crime not happened, including through the restoration of lost land, homes, and property to survivors of forced displacement (Rimmer 2010, 4). Under Operation Rudi Nyumbani, idps were categorized according to the livelihoods they pursued prior to the displacement. The majority were farmers, and Operation Rudi Nyumbani was largely successful in assisting this category of idps to return to their land or acquire leased land near urban centres (kndr Monitoring Project 2011, para. 73). However, for idps who were landless and lacked the means to lease land, the government resettlement programs have been largely unsuccessful. The same is true for idps who were traders and lost their businesses during the violence, as the government has not compensated them (kndr Monitoring Project 2011, paras. 73–5). The ministry operations’ broader failures included the lack of transparent registries, explanation of land allocation criteria, restitution schemes, and support for idps to verify the whereabouts of loved ones (Klopp, Githinji, and Karuoya 2010, 7). The khrc, an independent non-governmental organization with no state mandate, is not to be confused with the Kenya National Commission for

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Human Rights, which was responsible for the initial investigation into the post-election violence and is a national human rights institution. As of May 2012, 157,908 idps had been given 10,000 Kenyan shillings (roughly US$127) as resettlement assistance and 37,843 households received 25,000 shillings (US$300) to replace burned homes (irin 2012). This was followed by a broader rebuilding effort that resulted in the construction of almost 21,000 houses. In addition to post-election violence, forced displacement in Kenya is linked to inter-communal clashes, evictions, and natural disasters. While in this chapter we focus on criminal prosecutions as they relate to displacement, there are a number of other ways to attempt to advance accountability for displacement, including the provision of financial compensation or other forms of reparations to victims. There is very limited provision under the Rome Statute for reparations, however, at the icc, victims may seek limited reparations through the Trust Fund for Victims, an independent body of the court charged with implementing the court’s reparation orders and providing physical and psycho-social rehabilitation and material support to victims of crimes within the icc’s jurisdiction, even when there is no conviction. The Trust Fund for Victims may distribute benefits to displaced persons for the violations that caused them to flee, for the abuses they suffered while displaced, or for the crime of displacement itself (Bailey 2006). While its mandate is meritorious, it relies entirely on donations from state and non-state entities. Identifying appropriate reparations measures and implementing them in forced displacement contexts is a logistical task the icc is ill-suited to undertake. Subsequently, the government’s obligation and ability to prosecute perpetrators of forced displacement under domestic law has been expanded with the adoption of the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention). Article 4(6) of the Kampala Convention requires states parties to declare as offences acts of arbitrary displacement that amount to genocide, war crimes, and crimes against humanity. Although Kenya has not signed or ratified the convention, its terms were imported into Kenyan domestic law through section 3 of the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, which came into effect in early 2013. Section 23 of the act identifies offences related to arbitrary displacement, including an offence for causing, aiding, or abetting arbitrary displacement through acts that amount to genocide, war crimes, or crimes against humanity. Created to investigate allegations of human rights violations from 12 December 1963 to 28 February 2008, the tjrc was harshly criticized as its

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chair, Bethuel Kiplagat, was allegedly involved in human rights abuses that the tjrc was tasked to investigate (khcr 2010). A March 2011 report by the Department of Public Prosecutions claims that ninety-four post-election violence cases had resulted in convictions. However, a review of these cases conducted by Human Rights Watch (2011) found that only a small percentage of those convictions were for crimes actually related to the post-election violence. Significantly, both the Waki Report and a previous report issued by the Kenya National Commission on Human Rights recommended that the icc intervene if Kenya failed to launch a domestic tribunal or take other steps to hold perpetrators accountable. Unlawful deportation or transfer of a civilian is also a grave breach of the Geneva Conventions (a. 147). Further, displacement has been prosecuted by the extraordinary chambers in the Courts of Cambodia and internally within Colombia (Andreu-Guzmán 2012). The prosecutor requested authorization of an investigation pursuant to article 15 on 26 November 2009. See the following section for a more detailed discussion of this concept. The policy requirement plays a key role in delineating the range of criminal acts that are defined as crimes against humanity. Without the policy requirement, the contextual element for crimes against humanity would depend solely on their commission during a “widespread or systemic” attack against a civilian population. This would potentially make charges of crimes against humanity applicable to a wide range of actors, including mafias, gangs, and small terrorist bands (Schabas 2008, 960). The existence of a state or organizational policy may be the best criterion to distinguish between individual crimes that belong to national justice systems and international crimes subject to universal jurisdiction (Schabas 2008, 982). The chamber goes on to indicate that in determining this, a series of factors may be taken into account, including: “whether the group is under a responsible command, or has an established hierarchy; whether the group possesses, in fact, the means to carry out a widespread or systemic attack against a civilian population; whether the group has criminal activities against the civilian population as a primary purpose; and whether the group articulates, explicitly or implicitly, an intention to attack a civilian population.” The failure to address the legacies of displacement is characteristic of the entire Great Lakes Region, where Uganda, Sudan, Rwanda, Burundi, the Democratic Republic of Congo, and Kenya have each experienced mass displacement caused by conflict (see Hovil 2012 for further discussion).

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13 The Palestinian Refugee Issue: Intangible Needs and Moral Acknowledgment MIC HA E L MO LLOY, JOHN BELL , NICOLE WAINT R AU B , AND IAN B . ANDER SON

The Palestinian refugee issue has long been framed in the West as a humanitarian problem to be resolved through a variety of practical measures.1 These measures include compensation for losses and suffering as well as providing the refugees with a range of options spelled out in the “parameters” circulated by President Bill Clinton just before the end of his term of office and after the Camp David negotiations failed. These options include return to a new Palestinian state; return to “swapped” areas (i.e., areas of present day Israel that would be ceded to the Palestinian state in return for parts of the West Bank now occupied by Israeli settlements); integration in host countries, Jordan and Syria in particular, where refugees already live; resettlement in western countries; and return of limited numbers and categories of refugees to Israel. From a Palestinian perspective, while practical solutions to their displacement are important, the issue is first and foremost a matter of rights, dignity, and international law. Palestinians view their case as in many ways unique, requiring resolution in accordance with their understanding of their rights as spelled out in un General Assembly Resolution 194 and international instruments like the Universal Declaration of Human Rights (article 13.2) and the Fourth Geneva Convention, which prohibits the colonization of territory under military occupation.2 This position has a strong moral element, which involves complex, symbolic, and multifaceted components, but which ultimately comes down to a need for acknowledgment of responsibility for what happened to the Palestinian people in 1948, as well as recognition of the right of return.

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This key aspect of the refugee issue is referred to here as the “intangible” dimension.3 For their part, Israelis also have a number of intangible concerns that have inhibited efforts to address the refugee issue. These relate to the nature of Israel as a Jewish state or homeland and the “finality of claims” in an end-of-conflict agreement.4 These characteristics, embedded in the two peoples’ conflicting narratives, mean that the refugee issue is not resolvable through practical measures, such as compensation or resettlement, alone.5 The purpose of this chapter is to explore the concept of “moral acknowledgment” as it pertains to the intangible dimension of the Palestinian refugee problem, examine its various facets, and outline some approaches to resolution and their implications. The chapter rests on the authors’ extensive experience with the Palestinian refugee issue dating back to 1992 and the creation of the Multilateral Refugee Working Group (rwg). Michael Molloy and John Bell were among the original team of Canadian diplomats that established the rwg, one of the five working groups established at the Moscow Conference (January 1992), which followed on the heels of the Madrid Peace Conference (October 1991). Both Molloy and Bell remained involved with the Palestinian issue in the ensuing years, and as Canada’s peace process coordinator from 2000 to 2003 Molloy coordinated both Canadian and multilateral research, policy analysis, and practical projects focusing on this issue. The authors subsequently hosted a foursession workshop on the intangible barriers to resolving the refugee issue. The participants included active and retired Palestinian and Israeli negotiators, diplomats, and academics.6 The lesson of the peace process from the Madrid Conference in 1991, through the Multilateral Refugee Working Group, the Oslo Process, negotiations and discussions in Camp David, Taba, Annapolis, and innumerable track two encounters, demonstrates that these intangible matters of rights, dignity, identity, and legitimacy will not be pushed aside. If the refugee issue (and hence the Israeli-Palestinian conflict) is to be resolved, it must be understood that the road to unlocking practical solutions runs through, not around, the moral and symbolic or intangible issues. In support of this view, the chapter begins by examining the notion of moral acknowledgment and the role of narratives and intangible needs in the Israeli-Palestinian conflict. It then analyzes the conflicts in both sides’ intangible needs that are brought to the fore in the context of the Palestinian refugee situation. It reviews efforts to address the refugee issue in the context of the peace process, highlighting the failure to respond effec-

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tively to issues of intangible needs and moral acknowledgment. The concluding sections address the transformative potential of moral acknowledgment, particularly in the context of an agreement on the refugee issue, and the significant challenges to realizing this potential. M ORA L AC K N OW L E D G M E N T

Moral acknowledgment is a tool available to governments and other institutions to recognize and rectify past injustices. The practice is part of a broader trend that has seen an increase in attention to moral issues in the international arena over the past few decades. Elazar Barkan (2000, xvi) argues that following World War II, and increasingly since the end of the Cold War, issues of morality and justice have been receiving growing attention as political questions. The result has been a rising practice of public acknowledgment by states of their responsibility for injustices committed against particular groups in the past. It is increasingly perceived as an essential step in achieving reconciliation between aggrieved groups and the states or authorities responsible. This section reviews briefly the literature on moral acknowledgment and situates the practice within the field of reparative justice. The definition of moral acknowledgment in conflict management and legal literature tends to vary by scholar and practitioner depending on what aspect of moral reparations is emphasized. Michael Marrus (2006), for example, defines acknowledgment as a component of formal apologies – a first step before acceptance of responsibility, expression of regret, and a commitment to reparation. While acknowledgment is integral to the process, Marrus sees it as a piece of the larger puzzle, each component of which is equally necessary. In this regard, apology is the ultimate output; acknowledgment is a tool used to reach it. In contrast, Trudy Govier (2003) describes acknowledgment as the linchpin of the moral reparations process. Through the recognition of what has happened, acknowledgment creates a break between events of the past and the present and may assist the targeted group to move forward. The process consists of the state admitting that it “has committed wrongs and will, on the basis of this self-acknowledgment, grant public acknowledgment to victims. The victims will then receive acknowledgment, which will articulate recognition that certain sorts of acts were wrong and a commitment not to do such things again” (Govier 2003, 84).

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To be sure, there is a close relationship between official apologies and moral acknowledgment of the type described here; nevertheless, it is important to note the distinction between the two. Acknowledgment is a process of recognition, which can take many forms – for example, public statements, commemoration ceremonies, truth commissions, criminal trials, or erected monuments. In its simplest form, an official apology consists of a statement on the part of the government admitting that the state has committed a wrong as well as expressing regret. The common thread that is highly relevant to the Palestinian refugee case is the capacity of both types of moral reparations to address the “intangible elements” of the problem. The term intangibles as applied here relates to the strong symbolic and emotional attachments, grievances, and fears that both Palestinians and Israelis have with regard to the Palestinian refugee issue. This stands in contrast to the material aspects that concern institutional, structural, financial, practical, and legal responses to the issues. As the following discussion demonstrates, the intangible and material aspects of the conflict are intertwined; the capacity to effectively address material aspects of the refugee issue depends on appropriate responses to the intangible issues. Key developments in international law support the growing practice of moral reparation and the need to acknowledge past injustices. Among the most significant of these developments are the International Law Commission’s (2001) articles on state responsibility for internationally wrongful acts. Article 34 of the document outlines three components of reparation: restitution, compensation, and satisfaction, which may be used individually or in combination to rectify a past injustice. Restitution and compensation refer to material remedies the state provides to the impacted group. They are intended to respectively re-establish the conditions present prior to the event in question and recompense that which cannot be returned in a physical sense. Satisfaction, in contrast, refers to that which cannot be addressed through material means like restitution or compensation. According to the International Law Commission, victims are due some gesture from the state that satisfies their need to have the injustice recognized. In this context, satisfaction can be achieved through gestures such as expressions of regret, a formal apology, or an acknowledgment of the breach. Article 37 of the document holds that these gestures must not be “out of proportion to the injury and may not take a form humiliating to the responsible state.” The emphasis on the dimension of satisfaction – and the role of

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acknowledgment therein – speaks not only to the limitations of material reparation when pursued exclusively, but also to the importance of addressing intangible needs. There are many examples of moral acknowledgment being applied in domestic and international policy. Two post-World War II cases are especially useful in drawing out the healing potential of moral acknowledgment; these are the cases of the interned Japanese Americans and of the Korean comfort women. The case of the victims of Japanese American internment camps in the United States during World War II provides an example of the successful use of moral acknowledgment in conjunction with material amends. After significant and mounting political pressure, the United States Congress passed the Civil Liberties Act of 1988. The act provided for $1.2 billion in compensation to the families that had been interned and, most significantly, a simultaneous presidential apology to each of the victims individually. While the internment’s events were not contested, for the most part, many still framed it as a measure of protection for Japanese Americans from their neighbours. The contents of the apology acknowledged, unequivocally, the fact that the wartime practices were wrong and unjust (Marrus 2006, 9; Samy 2010, 7). This dimension was equally important as material compensation; in fact, it is precisely this combination of elements that makes the Japanese American case a successful example of moral acknowledgment combined with reparation. In the case of the Korean comfort women who were sexually enslaved by the Japanese Imperial Army in World War II, acknowledgment of the injustice that had occurred was, arguably, all the more important because historically the position of the Japanese government was that no transgression had occurred. In order to proceed with moral reparation, it was necessary to first establish an account of what had transpired. This required difficult transactions between the Japanese state, advocacy groups, and the general public. In this case, the process of addressing the intangible needs had to precede the material compensation in order for victims and advocates to perceive the overall process as acceptable (Samy 2010, 7). Unfortunately, no such process was undertaken to achieve moral reparation. Instead, the formal action by the Japanese government was to establish the Asian Women’s Fund in support of comfort women with no specific acknowledgment of Japan’s role in the problem. The fact that the fund was designed to meet the socio-economic (material) needs of victimized women was overshadowed by the sense among the victims that the government was evading responsi-

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bility. Ultimately, many women refused the payments and the issue remains unresolved (Samy 2010, 5). It is difficult – if at all possible – to draw useful and justifiable comparisons between various cases where moral acknowledgment and reparation are concerned. The cases briefly described above introduce points of analytical and practical significance when considering the applicability of moral acknowledgment in general. However, the case of the Palestinian refugees, like all examples of historic injustice, has unique dimensions that require a specific analysis and understanding of the political history. N A R R ATI V E S

According to Rotberg (2006, vii), “every conflict is justified by a narrative of grievance, accusation, and indignity. Conflicts cannot exist without a detailed explanation of how and why battles began and why one side, and only one side, is in the right.” The nature of the process is such that each side uses its narrative to understand and justify the conflict and its victimhood and/or righteousness. The narrative of the other is rejected as illegitimate. After a century of conflict, the narratives held by the Israelis and the Palestinians are as important as the verifiable facts of the conflict. Israeli and Palestinian narratives surrounding the war of 1948 – including the displacement of the Palestinian people and the creation of the State of Israel – clash in profoundly important ways. These narratives – and their impacts on the individual and collective psyches on both sides – are expressions of significant intangible needs. The Palestinian narrative posits Al-Naqba (the catastrophe) as the defining moment in the formation of the Palestinian national identity after 1948. This identity is marked by expulsion, suffering, and the refugee experience. Palestinians believe that the 700,000 Palestinians who became refugees were forcibly driven from their homes and villages in Mandatory Palestine prior to, during, and in the aftermath of war of 1948 as the result of an expulsion that was deliberately planned and undertaken by pre-independence Zionists and later by officials of the State of Israel itself. The decision made by the Israeli cabinet in June 1948 to bar refugees from returning to their homes cemented the Palestinians’ status as refugees in neighbouring countries and in the West Bank and Gaza. A strong sense of victimhood is part of the Palestinian national identity as a result of these events.

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The traditional Israeli narrative holds that most Palestinians fled their homes voluntarily and, in some cases, at the behest of Palestinian and Arab leaders. According to the Israeli view, the Arab states and Palestine rejected the 1947 United Nations Partition Plan for Palestine, which would have granted Palestinians their own state, and which forced war upon the new State of Israel. Refugees were displaced as a natural consequence of hostilities and Israeli actions were driven by military necessity and constituted an important and justifiable state-building imperative. From the Israeli perspective, while the refugees’ suffering is regrettable, the refugee situation is primarily the consequence of Palestinian and Arab decisions and actions for which Israel bears neither moral nor legal responsibility. In parallel, an Israeli sense of victimhood stems from the Jewish people’s history of persecution, culminating in the Holocaust that preceded the creation of the State of Israel. Furthermore, because of the importance of maintaining the Jewish character of Israel, most Israelis believe that refugees cannot be permitted to return, especially not in any significant number.7 Narratives elucidate how both sides frame their hurt and their denial of wrongdoing, and how they understand the events of history. At the core of each narrative lie powerful symbolic issues and needs. These needs will be at the centre of any efforts to address the refugee problem’s intangible dimensions. IN TA N G I B L E N E E D S

Each side’s narrative stems from profound intangible needs.8 For Palestinians, there appear to be two central intangible needs, both firmly rooted in the refugee experience: the need for recognition of the refugees’ right of return (arising out of un General Assembly Resolution 194) and the need to have Israel acknowledge its responsibility for the expulsion of the Palestinians. Despite the improbability of the full-fledged practical implementation of the right of return (in the sense of the refugees and their descendants repossessing and returning to live on their lost lands), Palestinians still demand its recognition by Israel as a basic principle stemming from a past injustice. They maintain that Israeli acknowledgment of this right, even if only in principle, is a necessary step toward recognizing and addressing Palestinian refugee suffering during and after the war of 1948 (Khouri 2010, 7). This suffering may be understood in terms of both physical and material loss (for example, land, property, and economic development) and intangible loss (for example, identity and

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dignity). Palestinians also demand that Israel accept responsibility for the creation of the refugee problem because they view it as the direct cause of their dispossession. For their part, Israelis appear to have three core intangible needs that have links to the refugee issue. First, they require that Palestinians recognize Israel as a Jewish state or as the homeland of the Jewish people. This need can be characterized as intangible even if it does not fit the moral acknowledgment construct perfectly. Rather, it constitutes a need for acknowledgment (or recognition) of a different, existential type. It relates to the nature of the state and it points to a fundamental Israeli need for Palestinians, and Arabs in general, to accept explicitly the Jewish presence in the Middle East as a legitimate nation state. Second, Israelis require acknowledgment from the Palestinians that Israel is not entirely responsible for the creation of the refugee problem as it did not initiate the hostilities in 1948. Third, Israelis require that any future settlement of the refugee issue brings an end to all claims on this file against Israel. The end of claims, in essence, would clear Israel of any future or further debt – material or moral – to Palestinians. As Rami Khouri (2010, 2) argues, these intangible needs constitute “the heart of the conflict,” as “they touch on national rights as well as the wellbeing of millions of people on both sides. They are about land, rights, memory, law, property and livelihoods, but above all they are frightening existential issues for the two protagonists in this battle. They cut deep into the psyches and self-esteem of both Israelis and Palestinians, because they touch on three sensitive aspects of any people’s existence: their identity, humanity and legitimacy.” C ON F L I C TI N G I N TA N G I B L E N E E D S

The intangible needs of both sides, including those that relate to moral acknowledgment, conflict directly with one another. This is partly due to their narratives, their respective national experiences prior to 1948, and the results of the ensuing conflict. This section outlines the areas of conflict between the intangible needs of the Israelis and the Palestinians. The Palestinians have difficulty recognizing Israel as the Jewish people’s homeland for numerous reasons. First, for example, recognition could be seen to legitimize Al-Naqba that befell the Palestinians. Second, it could have serious implications for other issues under negotiation, including the fate of the holy places.9 Third, many Palestinians are concerned that recognition could legitimize and intensify discrimination against Israeli Arabs

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as non-Jews in a Jewish state. In addition, Palestinians are opposed to accepting any responsibility whatsoever for the creation of their own refugee problem. From their perspective, asking them to do so is tantamount to blaming them for their own national tragedy. Israelis also face challenges in fulfilling Palestinian intangible needs. They believe that acknowledgment of the right of return, followed by unlimited or unconditional practical implementation, would threaten the demographic nature of Israel as the homeland of the Jewish people (Khouri 2010, 8). Recognizing the right of return in principle only, with limits on actual return, is also fraught with difficulty for Israelis, as it would lead to questions surrounding Israel’s role in the creation of the refugee problem and concerns regarding future legal claims from individual refugees. It also relates to the broader sense among many Israelis that, so long as there is no closure on this issue, the country cannot feel as though it has an accepted presence in the region. Even if a future Palestinian state were to accept limits on return in a peace treaty, Israelis doubt whether the refugees themselves would accept this decision and worry that such an agreement could be undermined in foreign or international courts. Israel may also be reluctant to admit responsibility in this matter because doing so may call into question Israeli actions during the creation of the State of Israel. Even expressing regret for Palestinian refugee suffering is problematic, given the lack of internal consensus surrounding Israel’s responsibility for that suffering. Parallel senses of victimhood also complicate resolution of the refugee conflict. Both groups in the conflict see themselves as the victim and their opponent as the aggressor. They compete over who has suffered more and who has been more victimized by the other. Each side will try to persuade third parties that the other group is the obvious oppressor or aggressor (Rosenberg 2003). From this perspective, the satisfaction of each side’s intangible needs is greatly complicated. Israelis’ sense of victimhood arises in part from their perception that they have been victims of Palestinian violence and terrorism. Beyond that, they have a sense of victimhood that predates the conflict with the Palestinians; Israelis therefore seek a different form of existential recognition relating to the State of Israel being the home of the Jewish people today and in the future. This need is underpinned by the belief that the land in question belongs to the Jews due to their historical and biblical narratives. In summary, the conflict persists because Palestinians are unlikely to offer recognition of a Jewish homeland unilaterally and often assert that in any case the nature of the State of Israel is not theirs to define. At the

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same time, Israelis are unlikely to offer the moral acknowledgment Palestinians require of them without some form of reciprocity regarding Palestinian recognition of Israel as a Jewish homeland, which would implicitly sanction their presence in the Middle East today and would represent a step toward ensuring their future as a national entity in the region. This conflict cuts to the core of both sides’ sense of victimhood as well as to their original narratives and beliefs: Palestinians believe they have been dealt a historical injustice while Israelis believe (in varying combinations and degrees) that they had no choice but to go to war to defend themselves and create a state for the Jewish people, and that they have a historical and religious right to the land. This chapter seeks to advance the notion that, while this contradiction may not be resolvable through an insistence on defining and reinterpreting the past, it may be resolvable through meeting the lingering intangible needs of both sides today. This position will be explored further in a later section. A P P ROAC H E S TO R E S OLV I N G THE R E F U G E E I S S U E

As noted in the introduction, there have been two dominant approaches to the refugee problem since it was created over sixty-five years ago. These approaches have had, and continue to have, an impact on the issue of moral acknowledgment and other intangibles. The first approach emphasizes resolving the humanitarian and practical consequences of the conflict. It seeks to focus on solutions that satisfy practical needs, primarily humanitarian and economic measures for Palestinians. Solutions to the refugee problem are conceived exclusively in practical and material terms, with an emphasis on compensation for property loss and suffering and practical arrangements to end the refugee status of the refugees through return to the new Palestinian state; return to the areas of Israel that would be swapped for the major settlement blocs in the West Bank; integration into host countries, primarily Syria and Jordan; immigration to Western countries; and limited return of fixed numbers and categories, under Israeli control, to Israel. Financial assistance to the Palestinian state, Jordan, and Syria to help in integrating refugees into a normal life is also part of this approach, which has been the preferred focus of the donor community, and, to an extent, the Israeli government.10 In general, Palestinians have been reluctant to engage too deeply and solely with these practical solutions, fearing that this approach is a trap

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designed to sidestep their primary concerns – respect for rights and acknowledgment of wrongs. Furthermore, discussing the refugee issue only in terms of material reparation can be perceived as an insult. An important study by Atran and Axelrod (2008, 224) sheds light on this issue: “Our research findings and discussions with leaders indicate that violent opposition to compromise over issues people consider sacred actually increases when material incentives to compromise are offered. Support for violence decreases ... when an adversary makes symbolic gestures that show recognition of other’s core values.” In support of this observation, Atran, Axelrod, and Davis (2007, 1,040) quote Hamas’ Ghazi Hamad: “In principle we have no problem with a Palestinian state encompassing all of our lands within the 1967 borders. But let Israel apologize for our tragedy in 1948, and then we can talk about negotiating over our right of return to historic Palestine.” This sentence is significant because it implies that more important than the strict right of return is the need for moral acknowledgment of and apology for the damage inflicted on the Palestinians in 1948. It is therefore an example of the underlying needs of one side that are often not addressed through negotiations. The second approach looks at the refugee issue from a rights- and principles-based perspective and has been favoured by Palestinian officials, academics, advocates, and their supporters in the broader academic, development, ngo, and advocacy communities. It has marshalled legal arguments to anchor the right of return not only in un General Assembly Resolution 194 but also in a broader range of international instruments including the Universal Declaration of Human Rights and the Fourth Geneva Convention. This approach has devoted considerable energy to searching out examples from other refugee movements to bolster the notion that return is a right that has universal standing without undermining the contention that, among post-World-War-II refugee movements, the Palestinian case is unique. It focuses on the rights of Palestinians, their enshrinement in international law, and their implementation. It argues that, since return is a matter of right and international law, the peace process should be about implementing those rights rather than negotiating. Neither of these approaches is sufficient. There is little likelihood of the Palestinians agreeing to proceed with peace and practical solutions to the refugees’ plight until their need for moral acknowledgment and recognition of the right of return (at least in principle if not in practice) has been met. At the same time, the acknowledgment of past injustices and recog-

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nition of rights will be hollow if they are not accompanied by vigorous practical steps to deliver compensation and offer practical options for the refugees regarding the resolution of their displacement, which must be accompanied by a host of financial measures and developmental assistance. At the same time, an approach that only meets the needs of the Palestinians would be unacceptable to Israel. In the Israeli narrative, the refugees are portrayed as unfortunate consequences of the refusal of the Palestinians and the Arabs to accept the 1948 un decision to partition Palestine and the unjust war forced on Israel, i.e., the refugee situation is seen as a consequence of Arab decisions rather than Israeli actions. Therefore, there is no moral need for Israel to apologize. Each approach contains embedded assumptions about the nature of the disagreement over refugees, the optimal solution, and the means of resolving the disagreement. Each approach also bears consequences for negotiation strategies and desired outcomes on both sides. The following sub-section describes the extent to which the refugee issue – and in particular its intangible components – was broached from the start of the peace process. It is worth noting that the refugee issue was effectively off the table from 1948 to the launch of the peace process at the Madrid Conference of October 1991, a period spanning more than forty years. TH E R EF U G E E I S S U E A N D THE P E AC E P ROC E S S

The rwg was established at the January 1992 Moscow Conference, which launched a five-track multilateral peace process. The multilaterals were designed to support the bilateral negotiations that had been initiated between Israel and each of Jordan, Syria, Lebanon, and the Palestinians at the Madrid Conference (30 October to 2 November 1991) by dealing with regional issues such as water, the environment, trade, and regional security. As the refugee issue was seen as a final status issue to be resolved through bilateral (Israeli-Palestinian) negotiations, the rwg was not mandated to deal with core issues – tangible or intangible – and focused instead on the improvement of refugee camp conditions and family reunification. The rwg met eight times from 1992 to 1995 and ceased activity following the collapse of the Camp David talks in 2000. The peace process was reinvigorated by the signing of the Oslo Accords (September 1993), which also defined the refugee issue as a final status issue to be resolved at the end of the negotiations process. The Oslo process established a Quadripartite Committee, consisting of Israel, the Palestini-

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ans, Jordan, and Egypt, which first met in 1995 to discuss procedures for the return to the West Bank and Gaza of Palestinians displaced by the 1967 War. This forum focused, unsuccessfully, on practical measures. In 1995, secret talks headed by negotiators Yossi Beilin and Mahmoud Abbas (Abu Mazen) attempted to create a joint narrative of the events of 1947–48. The Palestinian demand was for an Israeli apology for the consequences of these events. The Israeli side agreed to express sorrow and regret, but not moral or legal responsibility for the creation of the refugee problem. According to the Beilin-Abu Mazen document (1995), Palestinians acknowledged the impracticality of implementing the right of return and the Israelis acknowledged the Palestinians’ moral and material suffering stemming from the events of 1947–49. While the talks touched on some of the intangibles, no agreement was reached. The official negotiations at Camp David (July 2000) under President Clinton and attended by Israeli Prime Minister Ehud Barak and Palestine Liberation Organization Chairman Yasser Arafat achieved a measure of agreement on several mechanisms relating to technical questions; however, no progress was made on the issues of acknowledgment and right of return. The Israeli side rejected responsibility for the refugee problem, despite a willingness to offer private expressions of sorrow for the refugees’ plight without accepting national Israeli responsibility. The Camp David talks failed to deal with the refugee issue in depth. Since the Israeli side refused to acknowledge responsibility for the creation of the refugee problem in 1947–49, there could be no discussion of related issues of moral acknowledgment and other intangibles. Following the failure of the Camp David negotiations, Clinton issued a document (December 2000) that became known as the Clinton Parameters. These contained conclusions arrived at by Clinton regarding the major issues that comprise the Israeli-Palestinian conflict. Fundamentally, he noted the sense that the differences over the resolution of the refugee problem “are more relating to formulations and less to what will happen on a practical level.” More specifically, regarding intangibles, he stated his belief that “Israel is prepared to acknowledge the moral and material suffering caused to the Palestinian people as a result of the 1948 war and the need to assist the international community in addressing the problem” (Clinton 2000). Ultimately, much of the value of the Clinton Parameters lies in their frank acknowledgment that the refugee issue must be faced directly – that is, it must be addressed and resolved, instead of avoided or put off. Moreover, they referred to Israel’s willingness to acknowledge the suffering and the rights of the refugees. According to the parameters,

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Israel would have to recognize its part in the creation of the refugee problem and the right of refugees to return to their ancestral homeland and communities. The parameters stressed, however, that this could only occur if there was an agreement that Israel would remain a predominantly Jewish state in the context of a two-state solution. The talks at Taba (January 2001) in the final weeks of both the Clinton administration and the Barak government represented apparent breakthroughs on the Palestinian refugee issue. Participants discussed acknowledging the issue’s historical facts, achieving a “willingness to respect and examine the conflicting ... narratives without necessarily accepting them in full” (Khouri 2010, 19), which resulted in the Palestinian delegation believing a “conceptual understanding” had been reached regarding Israel’s responsibility for the Palestinian refugee problem (Eldar 2002, 21). But despite significant progress on the issues of compensation, resettlement, and technical matters, ultimately no progress was achieved on the issues of acknowledgment, right of return, and recognition (Brynen 2008, 5). Without having this intangible need addressed, the Palestinian delegation was unwilling to conclude the practical issues under consideration. The meeting’s failure in this regard may help explain its inability to achieve an agreement on refugees as a core matter and thus also on other issues. In March 2003, the Arab Summit held in Beirut agreed to the launch of the Arab Peace Initiative. The significance of the Arab Peace Initiative is due in part to its call for a “‘just resolution’ of the refugee issue to be ‘agreed upon in accordance with unga Resolution 194,’ which leaves open the door for a negotiated agreement that takes into account Israeli as well as Palestinian interests” (Khouri 2010, 23). Further significance comes from the fact that all members of the Arab League and of the Islamic Conference endorsed the initiative. Since its introduction in 2002, it has been discussed sporadically but has failed to gain significant political traction. Unofficial negotiations between Israeli and Palestinian civil society actors resulted in the December 2003 release of the Geneva Accord. The accord deliberately avoided the issue of Israeli responsibility for the refugee problem, opting instead to focus on the practical solutions for improving the lives of refugees and creating mechanisms to resolve other practical issues in the event of peace. The accord also suggested mechanisms through which the parties could address their conflicting historical narratives and move toward enhancing a common understanding of the past, i.e., it encouraged the processes required rather than the actual formulations regarding these issues.

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The Annapolis meeting of November 2007 took place after the Palestinian Islamist group Hamas seized control of Gaza and ejected the Palestinian Authority. It produced an interesting statement from Israeli Prime Minister Ehud Olmert who, addressing President Abbas, declared: “Your people, too, have suffered for many years; and there are some who still suffer ... in neglect, alienation, bitterness, and a deep, unrelenting sense of humiliation” (Uni 2007). While stopping short of acknowledging Israel’s role in the refugee experience, these comments could be construed as modest progress toward moral acknowledgment, as few – if any – such statements had been made publicly by senior Israel leaders before. In the year following the Annapolis Conference, a series of official, confidential, Israeli-Palestinian working groups conducted the most detailed exchange of views on the issues separating the two sides to date. The postAnnapolis discussions between Israel and Palestinian leaders and officials, as revealed in the Palestine Papers leaked to Al Jazeera, demonstrate a growing awareness of the importance of narratives and the potential of moral acknowledgment, especially on the Palestinian side, and merit examination in some detail. While insisting that “Israel acknowledges its moral and legal responsibility for the longstanding displacement and dispossession of the Palestinian civilian population as a result of Israeli action during and following the conflict of 1948” (nsu 2008a), analysts from the Palestinian Negotiation Support Unit showed growing sophistication and sensitivity to Israeli concerns regarding their narrative, as evidenced in the following leaked 2008 memorandum to lead negotiator Dr Saeb Erekat on “Recognition of Israel’s Responsibility”: 2- Adapting to Israel’s concern as to its national narrative Israel has expressed its reluctance to acknowledge its responsibility out of fear that it would contradict its national narrative of triumph and homecoming. In fact, the acknowledgment Palestinians are seeking takes into account these concerns and does not lay responsibility for the creation of the refugee problem per se at the feet of the Israelis. Nor does not it necessarily contradict the Israeli national selfperception as it is undeniable to all Israelis that the state has taken measures to oppose Palestinian return despite their efforts to come back ... States frequently make mistakes or take actions which harm others. Acknowledging these mistakes and the harms that have resulted does not undermine the legitimacy of the state. Rather it shows its strengthen [sic] of character and determination to move forward.

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3- Recognition of suffering is inadequate Simply recognizing the suffering of the Palestinians is inadequate for reaching an agreement. Palestinians need acknowledgment from Israel as to its actions which left them stateless, homeless and exiled. This is the history and underlying cause of the conflict. Acknowledgment is necessary to reverse the elements of conflict which has been built upon denial of Palestinian humanity and dignity. It is through acknowledgment that the Palestinians can reclaim their dignity and put to rest their victimization. This fascinating document goes on to suggest that “acknowledging past wrongs is part of modern State behavior” and to list examples of US, Australian, Czech, and Canadian apologies (nsu 2008a). It also appears to signal an important shift away from a focus on the events of the 1948 war (and thus away from the Israeli narrative) and toward post-war Israeli legislation and other legal measures to confiscate Palestinian property and prevent return (and thus toward concrete and undeniable Israeli actions). In summing up the Olmert package offered to Abu Mazen in August 2008, the Negotiations Support Unit (2008b) notes, “Israel would acknowledge the suffering – but not responsibility for – Palestinian refugees ... In parallel, there must also be a mention of Israeli (or Jewish) suffering.” The fullest example of the Palestinian negotiators’ thinking on this issue is found in the rough draft of a set of talking points prepared on 22 September 2008, presumably after internal discussion of the Olmert package offer, which bears quoting in full: On Recognition: Israel’s recognition of responsibility for the creation and perpetuation of the problem is a crucial part of any solution because: •

• •

The fulfillment of this right will act as a form of moral reparation for refugees and give people a sense of satisfaction that their overall historical experience is acknowledged and addressed; It will show to the Palestinian people that the process has been genuine and capable of delivering a new reality on the ground; It is an essential prerequisite on the Israeli side to reach closure in this issue and enable the establishment of a “real” peace with the Palestinian refugees. In fact, the only way to permit Palestinian refugee forgiveness and move forward is to recognize Israel’s respon-

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sibility as regards as [sic] their suffering caused by their longstanding displacement and dispossession. International practice proves that apologies that have acknowledged one parties’ responsibility in the mistreatment of another has served as tools for allowing both parties to leave their wrongs of the past behind and move into future [sic] of coexistence and cooperation. (nsu 2008c)

This textbook explanation of moral reparation does not appear to have made it into the final version of the talking points, or to have been communicated to the Israeli negotiators. We can only speculate that it went too far for the senior Palestinian negotiators and was therefore dropped. More’s the pity, as it demonstrated a sophisticated understanding of contemporary thinking on the reconciliation process and there is no way to determine how the Israeli side might have received it. When one considers that the peace process has been going on since 1991, it is striking to observe how little real engagement there has been on this most critical of issues and how difficult those engagements have proven to be. This difficulty is precisely because of how painfully the issue resonates in both societies. The post-Annapolis talks, as reflected in the Palestine Papers, show increasing Palestinian understanding of various intangible issues but little evidence of Israeli willingness to go beyond an expression of sympathy for suffering. T HE T RA N S FOR M ATI V E P OTE N TI A L O F M OR A L AC K N OW L E D G M E N T

The persistence and perceived intractability of the Israeli-Palestinian conflict is well-known. New methods of conflict resolution are unlikely to produce dramatic results overnight. However, moral acknowledgment may help victims begin to come to terms with their victimhood, the actions that led to their suffering, and their apprehensions about the future: “Insofar as moral apologies express acknowledgment of the human dignity and moral worth of victims as well as respect for victims’ feelings of resentment, they can provide reason for an emotional shift on the part of victims” (Govier and Verwoerd 2002, 141). In fact, a failure to acknowledge this dimension of the victims’ experience inflicts a “second wound of silence” that can preclude any resolution of the conflict (Govier and Verwoerd 2002, 141).

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Moral acknowledgment may be critical to moving the Palestinian refugee question forward and to enabling future discussion of the practical issues. This progress could potentially be achieved via an “emotional shift on the part of victims” (Govier and Verwoerd 2004, 243) as it was in the case of Japanese American victims of internment camps. Having achieved satisfaction of their intangible needs – namely for moral acknowledgment and an apology – Japanese American victims were able to accept compensation and consider their claims settled. This path cuts to the heart of the conflict between Israelis and Palestinians and posits that a satisfaction of the intangible needs of both sides, through moral acknowledgment or otherwise, can help meet the profound emotional needs and calm that dimension of the conflict sufficiently to move the sides to agreement and to accept practical compromises in implementation. After decades of conflict and its effects, and chronic levels of distrust, both sides often ignore or dismiss this dynamic as unrealistic. Both sides have become inured to a circumstance where their profound intangible needs are unmet, and Palestinians and Israelis alike despair of any other possibility. This chronic state of conflict and distrust stands in the way of attempting an approach that may very well work. As Atran and Axelrod (2008, 224) point out: “Support for violence decreases ... when an adversary makes symbolic gestures that show recognition of the other’s core values. Symbolic gestures may then allow and facilitate political negotiations that also involve material trade-offs.” Attending to these needs could be a useful baseline for both sides that could facilitate the success of other practical and interest-driven negotiations. In our view, perceiving and acknowledging that this intangible baseline exists will represent a significant step forward in addressing the intractability of the Israeli-Palestinian conflict. M OR A L AC K N OW L E D G M E N T AN D A R E FU G E E AG R E E M E N T

Where previous approaches to the refugee issue have not been able to move the matter forward in the peace process, moral acknowledgment may offer the tools to address the central intangible obstacles that must be overcome in order to resolve the issue. A focus on the ultimate goal of moral satisfaction could meet the intangible needs of the Palestinian refugees and their descendants and provide a new approach to this appar-

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ently intractable question. Such an approach begs the questions: What is the potential of moral acknowledgment to set the stage for and shape a future agreement on the Palestinian refugee issue? Can it indeed unlock the refugee issue, and perhaps even lead to a comprehensive peace agreement, as some claim? (Khouri 2010, 4). How can the apparent contradictions over intangible needs entrenched in this issue be managed? A traditional application of moral acknowledgment is unidirectional. The state concerned offers the victim the recognition – in whatever format has been deemed acceptable to meet the victim’s intangible needs – of the injustice that has been committed. This gesture purportedly brings the matter to a close. Despite its many benefits, moral acknowledgment, in its traditional form, will likely not be able to meet all the requirements of moving the refugee problem forward in the context of the peace process. The reason for this is that there are strong interlinked intangible needs on both sides and movement on one side affects the other automatically. The intangible needs of the Israelis would be directly implicated and impinged upon should a process of moral acknowledgment for the Palestinians be undertaken. These needs cannot be sufficiently incorporated in a unidirectional framework of acknowledgment. To move the process forward along practical lines requires an adapted framework of moral acknowledgment that addresses the intangible needs of both sides, preferably simultaneously. The perspective taken here is that the Palestinian need for recognition of the right of return and acknowledgment of their suffering stands parallel with the issue of formal acknowledgment of Israel as a homeland for the Jewish people by the Palestinians and other Arab countries. The danger of proposing such a parallelism and framework for resolution is that it seems to imply that there is a moral equivalence of the intangible needs of both sides. It must be emphasized that no such equivalence is intended between the two issues. Intangible needs, due to their nature, do not lend themselves easily to comparison and the notion of equivalence risks offending both parties. Rather, it is meant to emphasize the importance of resolving these issues simultaneously and/or mutually. The degree to which the two matters relate to and affect each other, politically and emotionally, suggests that if the aim is the resolution of this conflict, the satisfaction of one side’s needs cannot be achieved without the other. It is argued here that this will ultimately require a commitment from both sides to recognize the needs of the other. Many different societal actors, including governments, parliaments, and civil society groups, may deliver such statements of recognition “before, during, or

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after a formal peace process” (Khouri 2010, 4). Considering the number of outstanding core issues, and the complexity of each, it is almost certain that such a moral acknowledgment will be an integral part of a comprehensive agreement on the refugee issue as well as all other matters between the sides. Satisfaction may only be achieved, and compromise agreed to, when the full spectrum of needs and concerns on both sides is understood and addressed as part of a comprehensive package. This will most likely have to be undertaken by leaders, as a political act, once they are satisfied that the full package is acceptable to each of their constituencies. This would still entail political and possibly physical risks for these leaders given the depth of the antipathies; however, under the right circumstances – for example, in a very official setting and surrounded by international and regional leaders, and possibly even religious authorities – these risks could be mitigated. C HA L L E N G E S A HE A D

There is little doubt that, despite the possible logic and benefits of this approach, significant challenges will remain to its adoption. The political discourse that has evolved on both sides is part of the problem and serious consideration needs to be given to amending both discourses in a way that facilitates rather than blocks movement toward peace. After half a century of conflict and suffering, and discourses that affirm the impossibility of compromise, it will not be easy for either side to recognize the needs of the “enemy.” This problem is compounded by the many assumptions that have developed over time regarding keywords such as “right of return” or “Jewish state.” Today, these terms often trigger automatic rejection on each side. It may therefore be useful to explore recognition of general or universal human needs on both sides before entering into the political discourse. For example, many Palestinians and Arabs indicate that it is simply not up to them to define or recognize the nature of another state, including the Jewish nature of Israel. They claim that states self-define and do not require others to do so for them, especially regarding questions of identity. There is validity to this outlook and in some ways, in principle, it is hard to dispute; however, in the eyes of Israelis, the Palestinian demand of Israel on the refugee issue, especially regarding the right of return, may have implications about the demographic character of Israel, legal consequences, and hints at the idea that Israel was “born in sin,” an idea that helps to delegitimize the Israeli presence in the region.

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In our view, based on our professional experiences and dialogues with Israeli and Palestinian counterparts, the way to address the intangible needs today of Palestinians and Israelis alike, and to calm the profoundly sensitive waters around this issue in each community, is to recognize both sets of intangible needs in tandem, thus providing both sides with the confidence to move forward positively. If Israelis can recognize Palestinians’ need for redress for past wrongs and suffering and displacement, from that may evolve recognition of the right of return as a principle. At the same time, if Palestinians can recognize Israelis’ need for legitimacy and belonging, from that may evolve recognition of the need for a Jewish homeland in the Middle East. In addition, it appears that the whole approach to negotiation in this case needs to be revisited. Negotiation and bartering may be attractive and well-developed political habits regarding Middle East peace, but they may not be appropriate methods of navigating these intangible needs that deal with “sensitive aspects of any people’s existence” (Khouri 2010, 7). As has been emphasized, these needs are not at all amenable to trade-offs with material interests, and indeed this can be counterproductive. Instead, intangible dimensions are better treated in tandem and, although this may be unorthodox, are best approached as the baseline for successful political negotiations over more practical matters, rather than assuming that these sensitive intangibles can only be addressed once agreement has been reached on more concrete concerns. It is important to recognize as well that neither side has adequately handled the difficult business of communicating realistic expectations to their own constituents up to this point. Before beginning such a process, important messages may need to be transmitted to the public and to key groups on both sides. For example, Palestinian political leaders may need to engage in a conversation with their refugee constituencies stressing that this process does not abandon the principle of the right of return, but rather emphasizes the duty of Palestinians to return to and build their state. At the same time, Israeli political leaders need to begin to speak openly to their constituents about the detrimental consequences and impact of the creation of the state of Israel on the Palestinians. How and when would refugee communities within Israel, the Palestinian territories, and host countries be engaged? Should leaders seek their input prior to an agreement or should refugees be informed of a decision after it has taken place? These communication challenges require in-depth discussion and a degree of advance coordination. In the event of an agree-

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ment on refugees, post-agreement communication may need to be considered carefully in advance. There is a fine line between declaring victory – which both sides would understandably be eager to do – and undermining the other side. These significant communication challenges to implementing a moral acknowledgment approach, only briefly outlined here, will have to be considered in much greater detail before any decisions are taken on the issues. C ON C LU S I ON

This chapter has attempted to survey the terrain of moral acknowledgment, describing its dimensions, advantages, and obstacles. Its purpose is primarily to elucidate this issue in the interest of advancing a complex but largely untapped approach to the resolution of the Arab-Israeli conflict. In that light, there are several lessons that may be offered for future negotiators and interested parties. This chapter has tried to demonstrate that both sides have powerful intangible requirements that must be met if there is to be progress in this long-standing conflict. The authors believe that making an inventory of these needs helps reveal an overall picture of challenges that have been little understood and underappreciated as barriers to reconciliation. The dominant approach of past (failed) peace efforts since the creation of the Palestinian refugee problem has been to ignore or discount the intangible issues that divide the two sides. Delving into these issues will be extremely painful for both sides, but future peace efforts are unlikely to succeed unless there is a new approach that includes the intangibles. It is important to recognize that while tangible solutions and intangible needs are entwined, efforts to address historic hurts and humiliations by simply offering tangible and practical solutions will likely do more harm than good. The dominant approaches of the protagonists and their supporters have failed. The western approach that has concentrated on compensation and practical arrangements (return, local integration in the neighbouring host countries, third country resettlement) has failed because it ignores what is most important to the refugees themselves – acknowledgment of the harm done to them and recognition of their right to return. The approach of the Palestinians, the Arabs, and their western advocates has also failed because it glosses over the impact that full implementation of the Palestinians’ perceived rights would have on the Israelis and their understanding of history.

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It is important to avoid the trap of implying that each side’s intangible needs are either equivalent or more or less important. There is simply no meaningful way to assign relative value or weight to a people’s longings, grievances, fears, or aspirations. It is sufficient to acknowledge their importance to the people concerned. An approach based on mutual recognition of needs without implied or stated equivalence should be attempted on this matter. Before practical issues are attended to, intangible needs must be recognized and addressed because the experience to date with twenty years of failed peace efforts is that they stand as obstacles to movement forward. This can be done via moral acknowledgment, statements, gestures, symbolic acts, and other methods that signal to the other side that their needs are understood and acknowledged. In this regard, the Israelis need to recognize the Palestinians’ need for redress and acknowledgment of past harm, displacement, and suffering; from that may evolve recognition of the right of return, if only as a principle. And, at the end of the day, Palestinians need to recognize Israelis’ need for legitimacy and belonging in the Middle East; from that may evolve recognition of the need for a Jewish homeland. The consequences of not dealing with moral acknowledgment may be manifold. More specifically, the moral insult Palestinians perceive will continue to afflict their national consciousness through the “second wound of silence” (Govier and Verwoerd 2002, 141). The issue cannot be wished away. Given that the refugee issue comprises such sensitive aspects of the Palestinian people’s existence, including their identity, humanity, and legitimacy, persistent lack of resolution may continue to exacerbate the obstacles leading to resolution of both the refugee issue and the larger conflict. Indeed, dealing with this matter in some of the ways proposed may unlock apparently intractable positions, permitting advancement toward peace that today seems illusory. Inaction on the Palestinian refugee issue has been the dominant approach since it began – with so little progress to date, a change of strategy is more than warranted. This chapter has provided reasons to look at the refugee issue anew, in all its emotional complexity, without necessarily characterizing it as intractable or unsolvable. The very process of examining these intangible issues may open up possibilities for new and untried solutions. The fact that the Palestinian negotiators have demonstrated a sophisticated understanding of these issues is an encouraging sign that this most protracted of refugee situations may eventually move toward resolution and reconciliation.

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notes 1 Portions of this chapter also appear in Brynen and El-Rifai (2013b). 2 un General Assembly 194 was passed at the conclusion of the 1948 war between Israel, the Palestinians, and the Arab states. Article 11 “Resolves that 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.” Research by scholars such as Mick Dumper (2006) highlights that despite its unique elements, the Palestinian refugee situation also has much in common with other displacement situations and may benefit from the insights gleaned from these cases. 3 For further discussion of some of the questions of intergenerational justice the Palestinian refugee situation raises, see Dumper (this volume, chapter 14). 4 Under an “end of conflict” agreement concluded between Israel and the Palestinians, the Israeli state would be immune to legal suits brought against it by Palestinian institutions or by refugees and other Palestinians dissatisfied with the outcome. 5 While it is framed in this chapter principally as a practical measure, compensation also raises a range of important moral questions. For an in-depth discussion of the question of compensation for the Palestinian refugees, see Brynen and El-Rifai (2013a). 6 This chapter elaborates and further develops ideas contained in an earlier paper commissioned by Canada’s International Development Research Centre (Brynen and El-Rifai 2013b). 7 This narrative has been modified in recent years by the Israeli New Historians, who have confirmed that the Palestinians did not leave voluntarily and that many who fled were purposely expelled. There remains disagreement and debate inside Israel among the proponents of this view over whether this was the result of a pre-planned, organized policy or an inevitable consequence of the events of the 1948 war. For an analysis of post-New-Historian trends see Pappe (2009). 8 This section draws on extensive interviews with Israeli and Palestinian retired officials and academics. 9 For example, Palestinians fear that Jewish and Israeli attachment to the land, and especially to Jewish holy sites in the West Bank (e.g., Tomb of the Patriarchs, Rachel’s Tomb), could become the basis for a claim to territory within the future Palestinian state.

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10 The case of the Palestinian refugees in Lebanon is distinct because of the difficult history between them and some Lebanese groups over the past few decades, as well as the complexities of internal Lebanese politics and confessional balances. The idea that a large number of the refugees would remain in Lebanon has no currency in that host country.

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14 Refugee Entitlement and the Passing of Time: Waldron’s Supersession Thesis and the Palestinian Refugee Case MICK DU MPER

In 1840, the Maori chiefs of the North Island of New Zealand signed the Treaty of Waitangi with representatives of the British government. The treaty established a framework for protecting Maori land and hunting and fishing rights from the encroachments of settlers in exchange for them ceding overall governance to the British. By 1900, the governor of New Zealand had acknowledged that the settlers had completely disregarded the terms of the treaty in the intervening years with the complicity of the colonial administration. Nevertheless, by the mid-1980s, nearly a century and a half later, the struggle of the Maori community had made sufficient progress for them to campaign for the recognition of the Treaty of Waitangi and to press for reparations for the injustices they had suffered. Similarly, in 1868 at Fort Laramie, Wyoming, a treaty was signed between the Sioux tribes of the Black Hills and the United States government that offered the Sioux protection against settler encroachment and gold miners. As settler pressure increased, the government sought to force them to sell their land, which they refused to do. Defeated militarily, the Sioux were then resettled in reservations in other parts of Dakota. Over a hundred years later, they continue to mobilize as a community to obtain reparations. In 1980, the US Supreme Court awarded US$122 million in compensation to the Black Hills Sioux. The Sioux, however, have refused the award and instead insist upon the right to return to the Black Hills and assert their ownership over them. In the early twentieth century, in the face of growing Zionist settlement in Palestine, the Palestinian Arabs received promises of protection of their

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civil rights from the international community and the British government, the colonial authority in the region. Furthermore, in 1947 they were offered independence on part of the historic land of Palestine through the un Partition Plan. Their refusal to agree to the terms of the plan led to a military confrontation with the Zionist forces and, ultimately, to the expulsion of more than two-thirds of the Palestinian population and the establishment of the new state of Israel on most of the land of Palestine. In 1993, following a long period of resistance and mobilization, Palestinians opened formal peace negotiations with the Israeli government, but no agreement has yet been signed, largely due to a Palestinian refusal to abandon their claims to return to their original homes or to accept the terms of the reparations offered by Israel. This juxtaposition of two cases of the rights of indigenous peoples and one case of a refugee situation is deliberate. It is not so much a way of making a cheap point to highlight the settler regime dimension in all these cases but a way to draw attention to another theme that runs between them – the effect, if any, of the passing of time on claims to reparations and a return to ancestral lands. This chapter is based on the premise that a convergence in the discourses on the rights of indigenous peoples and those of “protracted” refugees is emerging and that the issues facing the two sub-sets of displaced people are increasingly similar.1 This is particularly so in cases where refugee dispossession has taken place as a result of resource-based wars with settlers from either abroad or another part of the country sequestering land and property also claimed by those who have been displaced. As the resolution of the Palestinian refugee case, the largest and longest-running refugee situation in the world, continues to elude policymakers, discourse on the refugee rights of return and reparations, I believe, will gradually shift away from its current grounding in international human rights and humanitarian law to the discourse on the rights of indigenous peoples.2 This will raise many issues and policy implications that will need to be urgently addressed. This shift also has profound implications for devising mechanisms and programs for reparations and reconciliation. I take as my starting point a seminal article by Jeremy Waldron (1992), law professor at New York University, entitled “Superseding Historic Injustice,” in which he argues that historical entitlements, such as refugees’ land claims and their “right of return” are sensitive to the passage of time.3 In other words, the right to redress can fade or become obsolete, and claims for reparation may become weaker with the passing of generations. This important argument presents a difficult challenge to those engaged either

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as academics or activists in the rights of indigenous peoples or refugees. Human history is replete with examples of past wrongs – whether they are the activities of genocidal settler regimes in the Americas and Africa, or of the slave trade – that have not been redressed. The main contribution of Waldron’s article has been to the debate concerning the ongoing struggle of indigenous peoples such as the Sioux tribes of North America, the Maoris of New Zealand, or the Aborigines of Australia for reparations and recognition of past wrongs. Nevertheless, Waldron’s argument also has critical bearing on the inclusion of refugee concerns in post-conflict settlements and, as a result, has far-reaching implications for contemporary peacemaking and conflict resolution. The twentieth century saw the evolution of a discourse and a body of international law and legal mechanisms, which shifted peace agreements away from what Elazar Barkan (2003, 91) terms “the politics of vindictiveness” to a new moral framework guided by notions of restoration. The defeated were no longer marginalized or discarded in the same way, but were to have their grievances considered and, where possible, addressed in the interests of establishing a stable and moral order. The question of how retrospective such entitlements should be presents a difficulty for decision makers and negotiators. Is there a cut-off point before which bygones should be left as bygones? If not, how far back does one go? How does one factor into future peace agreements the passing of time in assessing compensation claims and restitution rights? To what extent may the restoration of the status quo ante generate new injustices? What is the status to be given to other justice claims that may have evolved in the meantime? Waldron explores further the implications of the supersession thesis in two later articles. The first, “Settlement, Return, and the Supersession Thesis” (Waldron 2004) is primarily an examination of the possibility that, based on this thesis, the ongoing Israeli colonization of the occupied Palestinian territories (opts) could at some stage and in some circumstances be no longer considered unjust as it clearly is now. The enquiry is an attempt to determine whether there are implications of moral hazard inherent in the thesis – that is, if an unjust action can at a later stage and in other circumstances be considered as less unjust, and whether this will impact the committing of injustices at the present time, or, in Waldron’s (2004, 248) words, if “it furnishes a reward for injustice, provided that the injustice can be sustained for long enough.” Waldron’s (2004) essay also discusses the dispossession of the Palestinians in 1948 and their entitlements as refugees. His references to the Palestinian refugees are tantalizing in that they give us a glimpse of his take on

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the 1948 dispossession of the Palestinian refugees, but unfortunately they are insufficiently developed to give us a full picture for our purposes. For example, Waldron (2004, 262) holds that in assessing whether the justice of the Palestinian case is strong enough to withstand the counter claims of the Israeli one based on the need for a Jewish state, “we must pay attention to the place that the expectations of being able to reside (once again) in the land where they [the Palestinians] once resided actually occupies in the lives of the refugees. It is not enough that they continue strenuously to demand the right to return; we must consider whether there is anything in their current attachment to the land to support such a demand.” As Waldron admits, he does not settle this issue in this essay but raises it as one that requires addressing. One of the strongest arguments against the supersession thesis is the logic of first occupancy, by which the rights of indigenous people are privileged over those of later settlers. Rooted in the work of Locke, this approach has been taken up by the political philosopher Nozick and others concerned with the rights of indigenous peoples (Nozick 1974; Ivison et al. 2000; Otto 1995). In a second essay related to the supersession thesis entitled, “Why Is Indigeneity Important?,” Waldron (2007) attempts to unpack this notion and draws attention to the difficulties inherent to mythologizing a homogenous and morally superior prior social and political order. He concludes that if prior occupation or habitation is not a sufficiently robust defence against the supersession thesis, one is left with the more ambiguous “Principle of Established Order,” that is, the last order “just before the first European ships came over the horizon” (Waldron 2007, 31). The problem with this, as he points out, is that it is susceptible to the shadows cast by the supersession thesis. If in existence long enough, the new imposed order becomes the order that is ruptured by invasion or colonization, or indeed, a reversion to the status quo ante. At the same time, while “Why Is Indigeneity Important?” helps to buttress the challenges laid down in “Superseding Historical Injustice,” it addresses the Palestinian refugee case only obliquely. There is a brief reference to this critical case in the conclusion, but the essay mainly focuses on unpacking the related notions of indigeneity and first occupancy (Waldron 2007, 38). T H E I M P ORTA N C E OF A D D R E S S I N G WA L D RON

The purpose of this chapter is to engage with the challenges posed by Waldron’s supersession thesis as they relate specifically to the Palestinian refugee case. As someone who has worked as an activist, as a policy con-

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sultant, and as an academic in the field of the Arab-Israeli conflict since the late seventies, the challenges contained in Waldron’s thesis are uncomfortable reading. By identifying how the passing of time and changing circumstances may impact the resolution of a past injustice, the supersession thesis can possibly overturn many long-held nostrums of those who have defended the Palestinian right of return to their original homes and even poses difficulties for those who are reconciled to a less-than-just agreement between the two protagonists based upon a two-state solution. Indeed, the thesis appears to go further in suggesting that the policies employed by the un and other aid agencies to tackle refugee crises are based on a human rights framework that does not necessarily take into account the complexity of competing claims to justice. Waldron’s critique is less on the legality of the options pursued than it is on their morality – given the changing circumstances over time. The thesis has a specific challenge for protracted refugee situations such as the Palestinian case. Exiled for over sixty-five years, Palestinians’ status as refugees is constantly under threat by funding shortages, regional politics, dispersion, and fragmentation.4 Of the options normally advanced to address a refugee crisis, Palestinian refugees see local integration and resettlement as a betrayal of their national cause. The possibility of the third option – repatriation to their homes – is controversial and at a political impasse due to the fact that the potential numbers of returnees would jeopardize the Jewish majority in Israel. Current estimates of Palestinian refugees range from over four million (un Relief and Works Agency for Palestine Refugees in the Near Eastregistered refugees) to seven million (registered and non-registered refugees and idps) (see unrwa 2014; badil 2009, 57–60).5 Even if only one million Palestinians wished to return to their homes after a peace agreement, this would add to the approximately 1.5 million Palestinians who remained in Israel after 1948, and their combined numbers would amount to between 25 and 30 per cent of the non-Jewish population of Israel, thus undermining the Jewish identity of the state – hence the Israeli refusal to countenance such an option.6 However, Waldron’s supersession thesis does not enter into this field of realpolitik concerning the balance of power and the questions of logistical feasibility that such a course of action would entail. Rather, the challenge it poses concerns the notion of repatriation per se given the passing of time and morally significant changes in circumstance. The thesis also provides the intellectual foundations for a school of thought in international relations and the field of reparations studies known as “adequate compensation.” Here, I argue that restitution in kind – that is, the full resti-

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tution of property or land to those evicted – is not pragmatic when it deals with large refugee communities or protracted refugee situations and calls for a framework that considers the interests of both parties and other constraints such as the ability of the parties involved to finance a full restitution and compensation program (Benvenisti 1999; Goodwin-Gill 2000, 48). Thus, the thesis also strengthens the case for those who argue that a combination of compensation and either the local integration of Palestinians into their host communities or their resettlement to third countries would be a fairer and more just way of dealing with the original 1948 injustice. The thesis also raises other moral questions that require considerable thought and reflection. While the return of Palestinian refugees to their homes may at least in part repair the injustice perpetrated in 1948, what impact will this have on the issue of secondary occupation, that is, on the people who have now settled into the refugees’ lands and homes? Where do they go? Immediately after a conflict, the answer to this question is simpler: back to where they came from originally. But after time has elapsed, and many generations have been born, raised, and buried on the same piece of land as the refugees once lived on, the answer is not so simple. In short, will repatriation create more injustices than it purports to solve? In addition, there is the question of financial responsibility in implementing a repatriation program. Is it right that the children and grandchildren of the perpetrators should shoulder the burden of such costs when they were perhaps not even born or in agreement with the injustice carried out by their forebears? Furthermore, the related question of a cut-off date is problematic. How far back does one go to resolve this issue? All human settlement is characterized by waves of migration and invasion, and not all of the injustices that may be associated with these processes have been or can be resolved. The uk government has apologized to the Irish for its responsibility for the potato famine in the 1840s, but should it also acknowledge responsibility for the massacres carried out by Oliver Cromwell? Can the Welsh and Scots legitimately make claims now for dispossession and injustices that predated the modern state of the United Kingdom? Finally, the question of what is a reasonable claim requires some thought. Restitution and compensation may be forthcoming in a political agreement but in some circumstances the suffering, loss, and pain refugees have experienced may be so great that no reparation is sufficient. How does one decide at what point enough is enough and the claim has been met?

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These are difficult issues that arise from considering Waldron’s supersession thesis and that disturb the often rhetorically embellished basis upon which refugee rights are constructed and advanced. As such, the thesis demands a considered and reflective response. Ultimately, it is my hope that by confronting the difficult issues Waldron raises, the Palestinian case, and thus perhaps other similar refugee cases, may be strengthened, but not just in terms of a zero sum game where Palestinian gains equal Israeli losses. Instead, by recognizing the validity of some aspects of the supersession thesis, we can come to a situation where the injustice experienced by the Palestinians is recognized and repaired to the satisfaction of the refugees but which also considers the need to avoid creating new grievances and injustices. Indeed, addressing the thesis by expanding the factors that have to be taken into account, the exercise opens up the space for political compromise and provides a wider range of policy options. For example, if repatriation of the Palestinian refugees and the eviction of some secondary occupants of their homes and lands is one result of implementing the right of return, then alternatives that include the exchange of property and land for other similarly valued property and land, restitution but not habitation, and a convincing package of compensation, apologies, and reconciliation measures, can be considered convincing alternatives to full return and restitution. In essence, the thesis comprises three main arguments: The counterfactual: In the main, the descendants of the dispossessed want the property that was stolen from their forebears returned to them. However, given the passage of time, how can we know what the original owners would have decided to do with their land? The passing of time: Our understanding of what makes the seizure of property and land unjust is that they were central to the lives of the people from whom they were stolen. However, the longer one has been dispossessed of that land or property and the more one has established a new life, the harder it is to sustain a claim that one’s life is organized around one’s former land and property and that it is the centre of one’s life. Changing circumstances: Changes in environmental factors and resource availability can weaken claims to exclusive rights over land or property. By implication, property that was originally acquired unjustly might become justly held given changes in circumstances. In the next section, I take each of the three arguments of the supersession thesis and assess the extent to which they are relevant in the Palestinian case.

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The Counterfactual This part of the thesis is the one with which I have the least difficulty. First, while it raises a legitimate point regarding the genealogy of decision-making, this seems to be more of a technical and legalistic argument that does not carry the same weight as the other two arguments. In addition, it reveals how the thesis has more bearing on cases of historical injustices of the more distant past, such as the Maori and Sioux, rather than of refugee situations of the more recent past, such as the Palestinians. According to unrwa statistics, 20 per cent of its registered refugees comprise people over sixty years old, and so were alive in 1948 and were directly displaced, known as first generation refugees. By this calculation, approximately one million adults could be consulted on what their wishes as to the disposition of their property would be (badil 2009, 73).7 But more important is the main weakness of this element of Waldron’s argument, that is, the emphasis on the individual when in many societies, particularly those that have undergone the trauma of dispossession and exile, collective identities and collective decision-making are paramount. The argument focuses on the potential decisions of individual property-owners without taking into account the large family and clan-based nature of Palestinian society, both prior to 1948 and also to a large extent inside the refugee camps today. Neither does it acknowledge the force of intergenerational identities that are also pervasive presences in exiled communities. There is no doubt that Palestinian society both in 1948 and in its contemporary phase is complex and heterogeneous. Palestinians did not always act collectively or in solidarity with their compatriots. Wealthy Palestinian landowners sold land and property to Zionist settlers and institutions in defiance of the political consensus to boycott such sales (Porath 1977, 92–7; Reudy 1971, 133). And there are many examples of quislings, collaborators, and accommodationists, and furthermore many refugees have migrated out of the region rather than keep up resistance to Israel over the sixty-five years of its presence on their land. Indeed, by the nature of its dispersal, Palestinian society is fractured not only by geography, but also by religion, class, and ideology. Nevertheless, despite these centripetal forces, it is clear that the overwhelming consensus of the refugee population favours the right to return as expressed by un General Assembly Resolution 194.8 Polling survey

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after survey indicate that the preferred option of the refugees is that they should be allowed to return. In some more detailed discussions in the various phases of the peace negotiations, this has been nuanced by disaggregating the recognition of the right of return from the exercise of that right. There are also countless declarations and political statements by the Palestinian leadership confirming their aim as the return of refugees to their homes in Palestine (see, e.g., badil 2008a, 2008b). Indeed, the continuing registration of refugees with unrwa is a testimony to their insistence on preserving their refugee status pending a return and a refusal to countenance their integration into their host communities. unrwa identity cards are brandished aloft in demonstrations as a mark of their defiance against local integration and resettlement. Families are proud to display the title deeds of their homes, and the keys to front doors are treasured possessions that have accrued huge symbolic value. Finally, even Palestinians who remained close to their lands and are now Israeli citizens but were nevertheless dispossessed, known in the un lexicon as internally displaced persons and given the status in Israeli law as “present absentees,” have refused to accept compensation for the confiscation of their lands and property (Jiryis 1976, 83; Peretz 1958, 143). While there may be a small number of Palestinians who would be happy to dispose of their land in individualistic ways, the national consensus that covers most owners and their descendants overwhelmingly favours return and the restitution of property. In the face of this evidence of a Palestinian desire for return and restitution, the counterfactual element in Waldron’s supersession thesis does not seem to me to be applicable. In the main, we do know what (a) the original owners and (b) their descendants would like to do with their former lands and properties. The Passing of Time This argument within the supersession thesis is more problematic. A claim for return and restitution is strongest immediately after a conflict has taken place. The livelihoods of the dispossessed people are based upon the lands, property, and locality of where they lived, and their attachment to that place is still very strong. It is, in Waldron’s (1992, 18–19) terms, their “centre of life.” As time passes and the dispossessed are able to survive in a new locality and form new attachments, it is harder for them to claim the previous place as their current centre of life. They have adapted to the new conditions and therefore the necessity to return is diminished and raises the possibility that the strength of the right of return decreases.

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At first reading, this part of the supersession thesis is pertinent to protracted refugee cases such as the Palestinian one and poses the most difficulty in constructing a rebuttal. In these cases, the integration of refugees into host countries or their resettlement to third countries is pervasive. Even when there are no formal agreements to integrate refugees locally or to facilitate their resettlement in a third country, informally there is still a shift in orientation. Many find jobs, set up businesses, send their children to local schools, marry into the host community, and pursue further education and training further afield. A whole panoply of new economic, political, and social networks are formed in exile (Black and Koser 1999; Loescher et al. 2008; Hanafi and Tabar 2005). In addition, there are many examples of how a long exile brings diaspora ties to the fore, often at the expense of ties to the country of origin. Nevertheless, a closer understanding of the Palestinian case suggests that the force of this argument is not as great as it appears. In the first place, the train of events that commenced in 1948 is not over.9 The dispossession of the Palestinians is ongoing and incomplete. Palestinians are still on their historic land in large numbers, particularly in six main areas: Galilee, the so-called Triangle and al-Naqab (Negev), the West Bank, Jerusalem, and the Gaza Strip. Here land confiscations by the Israeli government have taken place in waves beginning in the aftermath of the 1948 war but continuing through the fifties, sixties, and then, after the Israeli conquest of the remainder of Palestine in 1967, extended to the opts. Palestinians are therefore still on their land in large numbers. The Palestinian population that currently resides in the area that was once Palestine (Israel and the opts) numbers approximately four million, while there are 5.5 million Israeli Jews. They still have strong connections with the land as landowners, farmers, herders, and workers, and they have homes with gardens and trees. They can buy produce in markets that is grown and sold by Palestinians, send their children to schools and colleges down the road, pray in local churches and mosques, visit relatives in nearby villages and towns, and have moments of reflection beside their parents’ graves in neighbourhood cemeteries. For these Palestinians, the attachment to the land is undiminished and is the centre of their life. The land confiscations of the past and the ongoing confiscations are raw and painful reminders of this longstanding attachment. This argument has more relevance when employed in reference to those Palestinians who are physically removed from the land and in exile, that is, the significant majority, approximately 67 per cent (badil 2009, 57). However, it is important to my counterargument to establish that many Pales-

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tinians are still connected to the land and the society that existed on it, and that it is not entirely some collective memory that may accrue some mythological elements. The family connections remain vibrant. Indeed, as in many other protracted refugee situations, in the absence of a protective state, the role of the family has been enhanced and extended. Although for many years, especially between 1948 and 1967, communication was difficult and closely monitored by Israel and the Arab states, the flow of messages, information, and visits has greatly increased. Since 1967, Palestinians from inside Israel were able to visit relatives who were refugees in the camps in the West Bank and Gaza Strip. Similarly, Palestinians from the occupied Palestinian territories worked in large numbers in Israel and were able to reconnect with their families “inside” or, in some cases, work as day labourers on the land that they previously owned. The re-fragmentation of this Palestinian space through the construction of the wall and barrier around Palestinian areas in the West Bank since 2003 and the isolation of Gaza Strip since 2006 has made this exchange more difficult, but the emergence of email, the Internet, and social networking has provided alternative forms of communication that are breathing new life into attenuated and fractured bonds. Villagers of certain destroyed Palestinian villages who are now spread around historic Palestine, the Middle East, and the world are, for example, now able to maintain links that were undreamed of in 1948. A second point is the refugees’ sheer proximity to their former abodes. Even excluding the limited number of Palestinian refugees residing in the opts who after 1967 have been able to visit their former homes in Israel, many Palestinian refugee camps outside the opts are clustered around the historic land of Palestine in Lebanon, Syria, and Jordan. Due to security restrictions, their travel from these countries to their former homes is not easy even though the distances are not great. Most live within fifty miles of their former homes and some can even see them from their camps. The land therefore is not a historic memory but a presence on their horizon or just over it. By virtue of the elapse of time, they may have a new centre of life, but the attachment to their previous centre of life remains strong. Compounding this more complex relationship to the land is the temporariness of refugee camp life. Camps are not cities. They may comprise many elements of a large urban settlement, but they are predicated on a temporary and extra-territorial status, which gives them a sense of place which is dislocated from the locality (Agier 2008, 2011). This can encompass special property ownership arrangements, identification procedures

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and possibly checkpoints, external financing and an internal economy, legal exemptions, different health and educational programs, particular spatial orientations (e.g., sections of refugee camps are known as the Jaffa quarter, the Haifa quarter, etc.), and linguistic differences. Despite the protracted nature of some refugee situations, the camp experience and camp identity puts a check on the re-orientation of the refugees’ centre of life toward the new environment. The new centre of life in the camp reinforces the sense of loss of the previous conditions and lacks the security to give the present a sense of permanence. Immediately after the construction of camps in the 1950s, approximately one third of Palestinians who registered as refugees lived in camps and this proportion has remained much the same since. Other refugees are dispersed in nearby cities and towns in the region, but rely on and have access to the unrwa health and education programs within the camp. In this way, the camp identity remains the refugees’ dominant identity. These factors suggest that the loss of attachment induced by the passing of time that is central to the supersession thesis cannot be fully applied to the Palestinian case. The rupture with the past is neither so complete nor a turning point to a new beginning. What further undermines the application of the thesis to the Palestinian case is a caveat Waldron (1992, 19–20) himself highlights, namely that religious property may have a slightly stronger claim for being repossessed: Religions and cultural traditions we know are very resilient, and the claim that the lost lands form the center of a present way of life – and remain sacred objects despite their loss – may be as credible a hundred years on as it was at the time of the dispossession. In this regard, claims that land of religious significance should be returned to its original owners may have an edge over claims for the return of lands whose significance for them is mainly material and economic. In the Palestinian case, this factor applies to a significant extent in two ways. The visit to the ancestral graves on certain religious feast days and public holidays both by Palestinians inside Israel who have been displaced and by Palestinians in exile who have found ways to visit Israel has become a familiar feature of Palestinian social life. Sometimes as a response to a mobilization by activist groups, sometimes as a nostalgic interlude during a family visit, and sometimes as part of a personal search for origins, graves, cemeteries, holy places, destroyed mosques, and ancient wells have all become icons in personal and collective histories. In addi-

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tion to this is the role of Palestine in Islamic history, particularly that of sites in Jerusalem such as al-Aqsa mosque, the first direction of Muslim prayer, the Dome of the Rock, the place of the Prophet Muhammed’s ascension to heaven, the Holy Sepulchre, the place of Christ’s crucifixion, the birthplaces and burial places of numerous prophets, saints, and holy men, such as the burial places of Abraham and other prophets in Hebron and in Nablus, and the birthplace of Jesus Christ in Bethlehem. All these have given historic Palestine an aura of holiness for adherents of different faiths. So blessed is the geography that some Islamic narratives confer upon it the notion that it is a holy land (or ard al-muqaddassah) and that the whole land is a waqf or endowment to be held in trust for God in perpetuity (Porath 1977, 3; Dumper 1994, 21). This sacralization of the land has been ratcheted up in new ways with not only the revival of sectarian identities in the Middle East, particularly Islamic revivalism, but also with the growth of web-based proselytization and religious mobilization. The rallying cry of the northern Islamists in Israel against Israeli Jewish encroachments in the Old City of Jerusalem, which has had resonance not only with Palestinian Muslims but also throughout the Islamic world, is “al-Aqsa is in danger” (Dumper and Larkin 2011). The strength of this caveat in the supersession thesis is also bolstered by the fact that the land’s holiness is not disputed by the other protagonists in the Arab-Israeli conflict, namely Israeli Jews who hold numerous sites in Palestine as sacred and central to their faith. Changing Circumstances The third argument in the supersession thesis is that changing circumstances can erode the primacy of the original injustice. What was undeniably unjust at the time of its perpetration may be seen as relatively less unjust in the light of new developments. As Waldron (1998, 26) sums it up: There have been huge changes since North America and Australasia were settled by white colonists. The population has increased manifold, and most of the descendants of the colonists, unlike their ancestors, have nowhere else to go. We cannot be sure that these changes in circumstances supersede the injustice of their continued possession of aboriginal lands, but it would not be surprising if they did. The facts that have changed are exactly the sort of facts one would expect to make a difference to the justice of a set of entitlements over resources.

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This is perhaps the hardest argument against which to muster a rebuttal. As those who have studied protracted refugee situations know, the return of refugees can cause massive disruption to the country of origin, resulting in the eviction of secondary occupants and in effect punishing the children of those who originally committed the injustice for the actions of their parents. This is why unhcr has accepted that best practice in repatriation programs must include land distribution, rehabilitation, reconciliation, and the development of strong and effective legal systems to protect both the returnees and those who stayed (Black 2006; Fagen 2006b). While repatriation is often referred to as the “preferred option” of the three durable solutions (the other two being local integration and resettlement to a third country), it is also immensely complex, expensive, and contingent on lasting post-conflict stability. The likelihood of creating new unjust situations is very high. In the Palestinian case, there is no question that their 1948 dispossession is unjust, and this has been widely accepted internationally. However, the supersession thesis raises the concern that the remedy to the dispossession in 1948 may create not necessarily a greater injustice than that which occurred in 1948, but certainly an injustice that is disproportionate to the reparation it is designed to achieve. Over sixty-five years have elapsed since 1948 and the Israeli-Jewish society that has been built up in former Palestine is no longer some harsh garrison state. Without a doubt, it remains vigilant, highly securitized, and ruthless, as the ongoing dispossession of Palestinians in the opts reflects. But it also has become a home to successive waves of Jewish immigrants who have put down roots in their new home, who have fought and in some cases died to establish and consolidate their lives there, and who have started families, looked after their aged parents, and perhaps now care for their graves. Many Israelis have prospered and lived much more fulfilling lives in Israel than in their previous places of residence. Israel is a dynamic, entrepreneurial, and relatively transparent and egalitarian society that can be proud of many of its social, cultural, and economic achievements over the past half a century. More importantly, Israel is a Jewish society to the core, and Judaism is embedded in the rituals of daily life. A Rabbinate has been established that supervises laws of personal status such as marriage, wills, and deaths; it monitors kosher dietary rules and ensures respect for the Jewish day of rest, the Shabbat, which impinges on transport, entertainment, and other public activities on Saturdays. Even secular Jews who resent the growing influence of the Jewish Orthodox movement in Israel would typically defend the Jewishness that permeates Israeli life.

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That this success was constructed on the basis of the Palestinians’ dispossession and financially underpinned by the land and property acquired from Palestinians who are either internally displaced or in exile is undeniable – 80 per cent of Israel state lands came from property owned by refugees or displaced Palestinians (Peretz 1958, 143; Lustick 1980, 98–100). Nevertheless, the question remains whether the complete reversion to Palestinian ownership and occupancy will create new injustices and suffering. Putting aside the crucial political consideration that the Israeli Jewish population would never willingly accept such a reversion and that it would only occur after a massive military defeat of Israeli armed forces, which in itself would cause new suffering and injustices for both sides, the issue we have to consider is this: do the new circumstances that have accumulated over time warrant a reconsideration of the remedy that would have been relevant and appropriate in the immediate aftermath of the 1948 war? To paraphrase Waldron (1992, 20): “Do entitlements change as circumstances change? Or should we simply say that once something becomes [Palestinian] it remains [Palestinian] (and so it remains wrong for [Israelis] to keep it) no matter what else happens in the world?”10 My own view is that this argument has considerable force and that to deny it completely is to view Israelis only through the prism of being perpetrators or beneficiaries of a past injustice and to refuse to recognize their humanity in the round. Screening out the new injustices that a simple reversion to the status quo ante or restitution would incur would privilege Palestinian suffering over that of others and would lead to a discriminatory and chauvinistic notion of ethnicity by subscribing to the idea that only one ethnic or national group has a monopoly on extreme suffering and trauma in any given conflict. At the same time, injustice should not be rewarded. Waldron is quite explicit in recognizing the moral hazard that this argument encompasses, and that it could be “an incentive for wrongdoers to seize others’ lands confident in the knowledge that if they hang on to them wrongfully for long enough their possession may eventually become rightful” (Waldron 1992, 25).11 But his point is not so much whether an injustice occurred or not but whether a change in circumstances has an impact upon the implementation of a remedy. I think the way to approach this difficult challenge is twofold. On the one hand, Palestinians should accept the validity of the core of the argument and find ways to construct a reparations framework that acknowledges the changed circumstances of the twenty-first century and to see if

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this can be done in ways that do not cancel their entitlements. On the other hand, it is possible to disaggregate some of the elements of the reversion scenario and Israeli objections to a Palestinian repatriation to ascertain which would cause unacceptable disruption, new injustices, and further suffering. In other words, has the possible disruption and injustice that will be caused been overstated? How disruptive would a Palestinian return to their former homes or lands in Israel actually be? According to one study by Palestinian scholar Salman Abu Sitta, much of the Palestinian land acquired by Israel in 1948 is still “vacant” or has not been built on. Palestinian society, in contrast to that of the Jewish settlers, was largely rural and many of the villages that were destroyed during and after the 1948 war were simply incorporated into large Israeli agricultural holdings. Possibly up to 60 per cent of Palestinian refugees could return to their villages and cause no eviction of Israeli Jews. While Palestinian property was confiscated, the contention is that there has not been widespread secondary occupation (Abu Sitta 1999; 2000). Studies such as this require much more substantiation and at this stage are only suggestive of the view that physical space may not be as crucial an issue as it appears. In addition, they do not address the question of feasibility. Refugee families have multiplied three- and four-fold during their time in exile, so simply rebuilding the family home will be insufficient to meet their current needs. A return to the vacant areas will still require new housing, new infrastructure, and viable employment. How will this be provided? There is no doubt that in this scenario the degree of integration into the existing Israeli economy and infrastructure that is required will be considerable. So while the issue of Palestinian returnees displacing secondary occupiers may not be an insurmountable factor in terms of space, the political framework to implement it will require enormous changes, a point I return to below. There is another indication that the disruption and causing of new injustices through Palestinian restitution is overstated: while polls and political and community leaders consistently reiterate the importance that refugees place on the primacy of the Palestinian right of return, it is likely that not all Palestinian refugees wish to physically return to their ancestral homes and lands. This is consistent with unhcr figures, where on average only 25 per cent of refugees actually return to their homes (Dumper 2006, 13).12 For many Palestinian refugees, their centre of life has shifted sufficiently away from their original homeland and social and economic bonds tie them to their new places of residence. While this may appear to contradict my earlier argument that Palestine remains the cen-

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tre of refugee lives, it does not. The orientation toward Palestine remains pervasive and overwhelming as an identity and a social and political framework, but faced with a choice of moving to the homes of their grandparents in former Palestine/Israel with all the accompanying uncertainties, or of having their status regularized in their country of exile with the possibility of improved employment opportunities, it is reasonable to assume that many Palestinians will opt for the latter option.13 My view is that that a peace agreement in which a repatriation could take place would also include an overall package of compensation, economic, and structural development in host countries, the conferring of citizenship to refugees in host countries, incentives to resettle in a new Palestinian state in the opts, etc. (Brynen 2006; Kraft and Elwan 2007). The numbers of Palestinians interested in returning will be on the lower end of the scale. Of an estimated population of registered refugees of over four million, perhaps 500,000 at the most would be tempted to try out new lives in Israel. Others would be prepared to accept the package referred to above provided the agreement also included some form of apology, acknowledged their right to return and the injustice they have suffered, and, very importantly, permitted them the right to visit family homes, religious sites, and cemeteries. It is also quite likely that the numbers interested in taking up such an option would be much less. The reason for this is in the negotiations to arrive at a peace agreement, the Israeli side might argue that, while there may be a case for first generation Palestinian refugees, the case for their descendants having the same entitlements is not as clear cut. The Palestinian argument that the descendants of refugees are also victims of the original injustice is based upon broader unhcr provisions in support of family unity (unhcr 1992, para. 184). Nevertheless, it is highly probable that the Palestinian leadership will be willing to accept reduced numbers of returnees in exchange for concessions in other areas. In sum, any repatriation of Palestinian refugees will in effect be a nuanced phenomenon. This would not be a catastrophic invasion, a swamping of Israel with an overwhelmingly hostile population. Not only will the numbers be much less than those the popular press in Israel fears, but also the capacity of Israel to absorb large numbers of migrants is already proven. In the late 1980s and early 1990s, Israel was able to absorb over one million immigrants from the former Soviet Union, migrants whose familiarity with the climate, environment, food, geography, and language is much less than that of any would-be Palestinian returnees who would have the added advantage of some family members who either already reside in Israel or are not far away with whom they could relate. Indeed, returnees can be a burden, but

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as many economists are happy to point out, immigration can bring many economic benefits of additional labour; human, financial, and social capital; and, in the Israeli-Palestinian case, a cessation of hostilities with the Arab world. The real disruption of any repatriation is less on the allocation of space and the economy but more to do with the raison d’être of Israel, the Jewishness of the state. To what extent does the Israeli desire to maintain the Jewishness of Israel supersede the right of the Palestinians to return to their homes? (Waldron 2004, 258). To many Israelis mindful of the 1.5 million Palestinian Arabs who already reside in Israel, even a small number of refugees would threaten the Jewish character of the state. Implicit in this discussion is the question of the extent to which any people can legitimately be entitled to self-determination and a state of their own, and whether, given the multi-ethnic character of most modern states, such an aspiration is both unfeasible and dangerous. However, these issues aside, the overriding factor that has to be taken into account is whether Jews, and Israeli Jews as a sub-set, because of their experiences as a people of anti-Semitism over many centuries cumulating in the horrors of the Holocaust, are entitled to maintain a state that is both secure and Jewish. As Waldron (2004, 259) says, this factor “does not settle the issue of supersession but it maps out, I think, the historic as well as the philosophical terrain on which the case must be argued.” In assessing the strength of this consideration, we should not overlook the dynamic nature of politics in the region shaping both identities and ideologies. In the first place, the original political context in which Israel was established has been largely altered. Not only have a number of neighbouring Arab states made peace with Israel, but the fundamental ideological cleavage that divided the Middle East since the collapse of the Ottoman Empire in 1917, that of Arab nationalism and Zionism, is breaking down. There are many examples where Israel and various figures or factions within the Arab nationalist movement have cooperated against a common adversary such as Islamic radicalism. The security cooperation between Israeli security forces and those of the fatah-dominated Palestinian Authority in the opts is merely the latest example. This has impacted the power of Zionism as a mobilizing force for Israelis. Once one concedes that Palestinians have some rights, at what point can a line be drawn around those rights so they do not impinge negatively on the gains acquired by Zionist settlers? Where does that leave the maximalist versions of Zionism expressed by the radical right in Israel, which call for expulsion and domination of Palestinians?

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This is not to say that Zionism as an ideology is unravelling, but more that the current debate in Israel and the Jewish diaspora over its nature reflects these changes in political architecture. And such changes will accelerate after a peace agreement. As Rashid Khalidi (1999, 233) points out, a peace agreement will not arrive out of thin air but as part of a dialectical process with Israel, perhaps offering more generous terms resulting in a softening of negative Arab attitudes that in turn will lead to a greater understanding of Israeli security needs and so forth. Of course this dialectic must also be underwritten by an essential component of any agreement: reconciliation. A viable peace agreement between the parties will likely include clauses detailing a series of reconciliatory steps such as public apologies, a truth commission, commemorations, joint educational programs, and other forms of transnational dialogue. These may erode the high social walls and ideological divide between the protagonists. Thus, to return to the central question of the impact of changing circumstances, the Palestinian claim for justice needs to be seen in light not only of growing Israeli entitlements but also of the less-than-cataclysmic implications of the demands being made and a dynamic political situation that is broadly leading to greater cooperation and the potential for greater understanding. The Palestinian claim, therefore, can be met if it on one hand is disaggregated, and on the other precipitates a further change in circumstances. A claim that considers the changed nature of the land Palestinians have been exiled from, the rights of new generations of Israelis, and the concerns of Israelis to safeguard their Jewish culture, and that devises a series of proposals to respond to these issues, can to some extent square the circle of mutually exclusive Palestinian and Israeli entitlements. At the same time, Israeli Jewish claims based on an exclusivist Zionist ideology will need to be softened in ways in which non-Jews can be embraced so that all Israelis may live and work within a state that is committed to equality and justice for all its citizens. C ON C LU S I ON

Waldron’s supersession thesis offers up a serious ethical challenge to some of refugees’ legal rights and raises some profoundly important and difficult issues for those concerned with the repairing of historical injustices including protracted refugee situations such as the Palestinian case. Elements of the thesis are difficult to refute completely, but as I have shown, through considering their valid points it is possible to map out a way forward for meeting Palestinian claims in a constructive and egalitarian way.

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The supersession thesis, I believe, can assist Palestinians and other refugees in protracted situations in broadening the moral and political horizons and identifying areas of possible compromise. Recognizing the impact of the passing of time and changing circumstances can provide a framework for delineating criteria and the elements of a more credible political program. A Palestinian policy that recognizes the challenge of the supersession thesis and thereby addresses the gradual accumulation of Israeli rights will be much stronger, more credible, and hence more effective. An important complementary value in considering the supersession thesis is that it also provides a framework for separating out the various injustices that have occurred over the course of the conflict and their relationship to the remedies proposed. Reparations need to be made not only for the original injustice – the dispossession in 1948 – but also for the experience of exile, which is a separate issue and has produced a different kind of suffering and injustice. In addition, there are existing and current harms that are related to the dispossession in 1948 but may require redress of a different sort. In this way, the disaggregation of unjust acts shows that the while restitution and return is one form of redress available, it may not be appropriate for all the experienced injustices. Whether Palestinians, Maori, or Sioux are seeking redress, this is a useful tool to devise appropriate mechanisms and institutions.

notes 1 unhcr defines a protracted refugee situation as a situation in which more than 25,000 refugees have been in exile for over five years (Loescher et al. 2008, 21). This definition comprises 75 per cent of refugees dealt with by unhcr. The figure does not, however, include Palestinian refugees under the jurisdiction of a separate un agency, the un Relief and Works Agency for Palestine Refugees in the Near East (unrwa), which was set up one year before unhcr. 2 While the 1951 Refugee Convention makes limited references to property, it does not do so in terms of full-scale restitution rights. Indeed, it does not address the right of return or remedial rights in general. In contrast, the 2008 un Declaration on the Rights of Indigenous Peoples is explicit in its defence of the rights of indigenous people to restitution (Article 28). 3 In the Palestinian context, the right of return is often understood as the right of refugees to return to their original homes, notwithstanding a more general usage by unhcr to mean a right to return to the territory or country of origin.

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4 The Palestinian refugee situation is well-covered in the literature. See, for example, Aruri (2001), Arzt (1997), Brynen (2008), Brynen and El-Rifai (2007), Dumper (2006, 2007), Fischbach (2003), Gal (2008), Ginat and Perkins (2001), and Takkenberg (1998). 5 See www.unrwa.org and badil (2009, 57–60). 6 There are currently 7.8 million people residing in Israel – 75.5 per cent are Jews, and 20.2 per cent are Arabs. The remainder are classed as Druze (also Arab), Circassian, and others not classified by religion (Israel Ministry of Foreign Affairs 2010). 7 The figure is probably much less. The Norwegian thinktank Fafo Institute for Applied International Studies, which has carried out the most thorough analysis of Palestinian refugees’ living conditions, estimates that in 2010 there were only 195,000 first generation refugees. This amounts to approximately 5 per cent of the total estimated refugee population. The projected decline is to 2 per cent in 2020. See “Definitions and Population Dynamics” and “Population Forecasts for Palestinian Refugees, 2000–2020” in Fafo (2005). 8 This resolution states: “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 the loss or damage to property.” 9 Waldron (1992, 14) is aware of how injustices can be ongoing: “Instead of regarding the expropriation of aboriginal lands as an isolated act of injustice that took place at a certain time now relegated firmly to the past, we may think of it as a persisting injustice. The injustice persists, and it is perpetuated by the legal system as long as the land that was expropriated is not returned to those from whom it was taken.” 10 Waldron’s (1992, 20) original phrasing is as follows: “Do entitlements change as circumstances change? Or should we simply say that once something becomes mine it remains mine (and so it remains wrong for you to keep it) no matter what else happens in the world?” 11 Waldron addresses this issue in greater depth in his later work on the supersession thesis, in “Settlement, Return, and the Supersession Thesis” (Waldron 2004). 12 This percentage is based on calculations derived from unhcr data on refugees and returned refugees between 1995 and 2005. Since then, figures refer to “people of concern to unhcr,” which in some instances include idps. The percentage, therefore, is a very approximate indication of the general rate of return of refugees. unhcr figures do not include Palestinians registered with unrwa. See note 1.

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13 Ascertaining Palestinian refugee preferences in these circumstances has been fraught with difficulties. Many questions have been raised concerning the reliability of polling on refugee choice as a basis for policymaking in the absence of an agreement setting out the terms of a solution. It is often the case that refugees either did not understand or did not share a common understanding of terms used in polls relating to solutions arising out of a peace agreement (see Rempel 2013, 251; Zureik 1999; and Daneels 2001).

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CONCLUSION

Implications for Research, Policy, and Practice at the Intersection of Forced Migration, Transitional Justice, and Reconciliation MEGAN BRADLEY

Visiting the memorial to those killed in the genocide at Srebrenica, un Secretary-General Ban Ki-moon (2012) remarked, “We must learn from the lessons of Srebrenica.” The Srebrenica massacre and the litany of abuses that preceded and followed it, in Bosnia and elsewhere, have indeed yielded important if costly lessons on the complex work of advancing even a modest degree of reconciliation in divided societies, and accountability for displacement and the injustices that fuel it. This volume has been an effort to draw these lessons out through dialogue between academics and scholar-practitioners working at the interface of forced migration, transitional justice, and reconciliation processes. While the insights that emerge from the case studies and thematic analyses offered in this collection cannot be reduced to simple take-aways and sound bites, in this brief conclusion I attempt to distil some of the key implications of the preceding chapters for policymakers, practitioners, and researchers, recognizing that even with the increased attention this issue has attracted in recent years, we are only at the beginning of what deserves to be a much longer conversation. P OL I C Y I M P L I C ATI ON S

Even at their best, the contributions that transitional justice and reconciliation processes can make to addressing the concerns facing refugees, idps, and others affected by displacement are modest and contingent. There are no blueprints for successful transitional justice and reconciliation process-

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es, formal or informal. Given the limitations inherent to these processes, and the complexity of the environments in which they unfold, it is all the more important that transitional justice and reconciliation policies and programs be carefully designed and well informed in order to make the most of their potential. An increasing number of national and international policy frameworks now recognize the importance of engaging refugees and idps in transitional justice and reconciliation processes, and ensuring that these processes are appropriately tailored to address the concerns of displaced populations; some address the links between these issues in detail. In Colombia, for example, elaborate domestic legal and policy frameworks have been developed to address displaced persons’ remedial rights. Overall, however, on paper and in practice, responses to the diverse justice and reconciliation concerns facing displaced populations remain haphazard. More consistent but still appropriately tailored responses are needed, bearing in mind the following non-exhaustive set of considerations. Recognizing Complexity, Striving for Clarity Most policies and many programs related to the interface of forced migration, transitional justice, and reconciliation evade or completely avoid the thorny question of what justice and reconciliation mean. Attempting to conclusively define these inevitably contested concepts is a fool’s errand; as the authors of the preceding chapters suggest, policymakers, practitioners, and researchers alike are well advised to resist the impulse to impose artificially tidy definitions on the survivors of atrocities and injustices, including refugees and idps. Yet, at the same time, there is an undeniable need for more careful reflection on and clarity about the aims of transitional justice and reconciliation programs, particularly as they relate to forced migrants. These goals should be modest, appropriately sensitive to the varying conceptions of justice and reconciliation that displaced persons and their neighbours may hold, and resistant to the tendency to assume that return is a litmus test for peace and reconciliation taking hold. Particular care is needed in the use of the term “reconciliation,” since in many communities the concept is highly fraught and even potentially offensive. In such contexts, researchers and practitioners should recognize that coexistence or minimal reconciliation can be a remarkable achievement, and perhaps the most that can be hoped for or expected. Those behind efforts to conceptualize and advance justice and reconciliation should bear in mind the particular concerns that large-scale

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forced migration can raise, including but not limited to housing, land, and property disputes, and the perception that refugees, internally displaced persons, and returnees are less deserving of benefits and support because they escaped the worst of the conflict. As Maroun and Vidal López (this volume, chapters 7 and 10) make clear, proponents of the rights and well-being of refugees and idps also need to be alert to the possibility that discourses of transitional justice and reconciliation may be used to paper over persistent problems and local-level conflict. Whether inadvertently or by design, this rhetoric may further marginalize displaced persons, implying that those who continue to tie to identities and claims arising from conflict, despite the implementation of official justice and reconciliation processes, are not getting with the program of peace and post-conflict development. Awareness of the concerns that forced migrants often face in the context of transitional justice and reconciliation processes needs to be matched with a commitment to not essentialize displaced populations or make untenable assumptions about their justice concerns. For instance, should the current, fragile transition process in Burma (Myanmar) continue, redressing and resolving the country’s displacement situation is a challenge that will no doubt move up on domestic and international agendas. The country’s displaced population is comprised of a wide range of groups forced from their homes for different reasons at different times, including pro-democracy advocates encamped on the Thai-Burma border; those uprooted by clashes between different ethnic and religious groups; those displaced by armed conflict between the state and minority factions; and those ousted by unchecked resource exploitation and infrastructure projects. The identities, experiences, and claims these groups and their members espouse are remarkably diverse, and approaches attuned to the heterogeneity of the country’s displaced populations will be essential.1 In Burma and elsewhere, this entails, inter alia, systematic analysis of the ways in which experiences of displacement and engagement with transitional justice and reconciliation processes are shaped by factors such as gender and age, and nuanced responses to the situation of displaced persons who have been both victims and perpetrators of violence.2 Addressing Socio-economic Concerns Historically, transitional justice processes tended to focus on violations of civil and political rights, such as murder, torture, and disappearances, rather than on violations of economic, social, and cultural rights. At the

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same time, the remedies provided through post-conflict transitional justice processes have arguably had less bearing on socio-economic needs than they could and should, although certain forms of redress, such as property restitution and financial compensation, can have significant effects on recipients’ socio-economic well-being. Bearing in mind the dire economic conditions many refugees, idps, and their host communities face, many contributors to this volume point to the need to pay greater attention to the ways in which socio-economic concerns shape prospects for reconciliation in host and return communities. For example, socio-economic factors including lack of jobs and inadequate access to land and social services in Timor-Leste shaped the extent to which returnees were perceived as legitimate community members; solutions to displacement that initially seemed durable were undermined by increased socio-economic pressures, which in turn inflamed unresolved grievances, culminating in the violence of the 2006 crisis. This suggests that in the aftermath of violence and displacement, initiatives intended to increase security, stimulate livelihoods, rebuild infrastructure, reconstruct homes, and improve equitable access to essential services should be seen as a key element of efforts to enable reconciliation. Indeed, in some cases, such interventions may do more to promote reconciliation and a sense of justice than traditional transitional justice mechanisms, and should arguably be prioritized (iasc 2002; Longman et al. 2004, 219; Bradley 2012a). Yet at the same time, as Molloy, Bell, Waintraub, and Anderson (this volume, chapter 13) remind us, transitional justice processes that do not offer immediate, tangible benefits, such as truth-telling, apologies, and lustration, may nonetheless play a key role in making it possible for members of divided communities to accept compromises, work together, and reap the benefits of this broader range of reconciliation-related activities. Moving forward, these approaches should be effectively integrated and balanced, ensuring that formal transitional justice and reconciliation processes do not become rote exercises that detract attention from or compromise responses to major socio-economic concerns and grievances. Maximizing Contributions to the Resolution of Displacement The possibility that transitional justice and reconciliation processes may support the resolution of displacement is a major reason why displaced persons’ stake in these issues has attracted increased attention in recent years. Yet more careful thinking, monitoring, and rigorous evaluations are

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needed in order to understand and maximize the contributions that official and unofficial transitional justice and reconciliation processes may make to the pursuit of durable solutions for refugees and idps. As Milner (this volume, chapter 1) argues, making the most of the links between these processes requires a more proactive approach: instead of waiting for the official resolution of conflict and the start of return movements to instigate reconciliation and justice efforts, peacebuilding initiatives, including peace education and skills development programs, can be usefully deployed in advance in refugee camps and other settings. Property restitution programs have received the majority of attention in discussions of the relationship between redress and the resolution of displacement, particularly through the “preferred solution” of return. Yet there is a need not only to question the assumed desirability of return, but also to recognize that restitution or compensation for the loss of homes and lands may be a relevant remedy even for those who do not intend or are unable to physically return in the long term. Beyond ensuring that lingering land claims do not feed future conflict, these remedies can provide important resources to support resettlement or integration elsewhere. Yet caution is needed in the timing and positioning of remedies related to housing, land, and property violations. The prompt resolution of claims is generally desirable, but the most effective efforts to address displaced communities’ land issues are not necessarily those implemented the fastest. Whether formal, informal, or hybrid, the processes employed to support the resolution of displaced persons’ housing, land, and property claims should be accessible, clearly communicated, and fair. If it is to translate into truly durable solutions to protracted displacement, the return of lost property may in some instances need to be complemented by post-restitution support that backstops the re-establishment of livelihoods, essential services, and infrastructure (Conway and Xipu 2010). Proactive plans are required to address the conflicts that may emerge in the context of restitution and compensation efforts. Such efforts should also be appropriately situated within the context of broader tenure norms and reform efforts, as dealing with displaced persons’ concerns in isolation can lead to unsustainable outcomes and competition between displaced persons, returnees, and other groups with legitimate land-related grievances (Wily 2009; Duthie this volume, chapter 2; Smit this volume, chapter 3). Equally, as Smit argues, efforts to redress the housing, land, and property violations experienced by displaced persons must also mesh with post-conflict urban planning processes. Just as proponents of transitional justice and reconciliation processes must be cognizant of the potentially significant but inevitably limited

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nature of the contributions they may make to the sustainable resolution of displacement, they must also be aware of the potential for such initiatives to generate competition, and even to foster new grievances. This risk is particularly high in post-conflict communities in which there may already be objections over displaced persons receiving assistance that others do not, as well as the perception that refugees, idps, and returnees are less deserving of help as they escaped the worst of the conflict. In an attempt to reduce competition and foster reconciliation, many policymakers and practitioners promote community-based approaches to the distribution of assistance and even benefits intended to have remedial value. While Celestina’s (this volume, chapter 4) analysis of relations between idps and longer-term residents in the Colombian hamlet of Esperanza suggests that such approaches may have merit, Maroun’s (this volume, chapter 10) reflections on Lebanon’s “official” reconciliation process underscore that they too can generate grievances if perpetrators and their backers benefit from efforts to redress injustices of their own making. Engaging Diverse Actors on Multiple Levels As I suggested in the introduction, understanding the links between displacement, transitional justice, and reconciliation, in theory and in practice, requires interdisciplinary analysis that elucidates the interacting roles of a wide range of actors operating on multiple levels. The preceding chapters demonstrate that policies, programs, and institutional efforts to address the nexus of these issues will have at best limited effect if they concentrate only on a narrow range of high-level actors. Rather, multilevel strategies to address the interface of displacement, reconciliation, and justice need to be appropriately synchronized with broader accountability, reconciliation, and peacebuilding initiatives, as well as with social processes such as economic reform, the evolution of gender roles, urbanization, and urban planning. While there is an understandable desire for clarity regarding the roles and obligations of the multitude of actors who work in complex, postconflict spaces, responsibility for supporting reconciliation and justice efforts in communities affected by large-scale displacement cannot simply be delegated to a single actor such as a government agency, an international organization like unhcr, or a particular mechanism such as a truth commission. Rather, it should be clearly recognized that the process must involve a wide range of actors, including national and local governments;

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international organizations concerned with displacement, development, rule of law, and peacebuilding; religious institutions; ngos; and community groups. Because many of these actors work on different levels and in various sectors, the design and implementation of initiatives intended to support justice and reconciliation must involve stronger coordination and information exchange. Equally, more systematic efforts are needed to distil and share lessons and insights between actors and cases, moving beyond the ad hoc approach that often characterizes attempts to address the relationship between displacement, reconciliation, and justice. Agency and Mobilization of Displaced Communities Tools such as the Guiding Principles on Internal Displacement and the iasc Framework on Durable Solutions for Internally Displaced Persons explicitly call for displaced persons’ active involvement in decision-making and in the processes that affect their lives. Indeed, promoting participation has become a mantra for many ngos and un agencies that work in conflict and post-conflict contexts. Yet many refugees and idps still lack the opportunity to participate meaningfully in transitional justice and reconciliation processes. Too often it is assumed that high-level accountability efforts will trickle down to have positive effects on reconciliation and the resolution of displacement at the local level; the disjuncture between the icc’s prosecution of leaders allegedly involved in fomenting the country’s post-election displacement crisis and idps’ persistent need for concrete, local support to overcome their predicament provides but one example of the untenable nature of this assumption. As Maroun’s discussion of Lebanon’s official reconciliation efforts demonstrates, even national policies that have explicit pretensions toward local engagement do not necessarily translate into the meaningful involvement of refugees, idps, and other concerned groups. Participation may be stymied by factors that range from lack of resources and faith in the process to local politics and disconnection from the traditions “revitalized” to promote postconflict reconciliation. Concerted efforts are needed to address obstacles to the equitable participation of refugees and idps in transitional justice and reconciliation processes; such efforts may require raising awareness among transitional justice experts concerning the particular challenges that may limit displaced persons’ opportunities to engage in justice and reconciliation initiatives, including their geographic location, socio-economic needs, and fear of retribution, particularly in their communities of origin.

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Despite these barriers, the cases explored in the preceding chapters underscore that displaced persons may still seek out and seize opportunities to participate in transitional justice and reconciliation processes. Even when displaced persons are marginalized in formal transitional justice and reconciliation processes, they may still be highly engaged in informal processes that unfold through religious and diaspora communities. In some countries, such as Colombia, displaced persons have not only participated in transitional justice processes, but also mobilized to actively shape them. The architects of official transitional justice and reconciliation processes should seek to understand, engage, and support displaced communities and leaders who actively participate in the pursuit of reconciliation and justice, whether through formal or informal channels, recognizing that the mobilization of refugees and idps may expose them to threats and violence, necessitating increased protection. Refugees and idps are more likely to be enthusiastic about participating in such processes when they offer tangible benefits, such as financial compensation or property restitution. While it is generally desirable for transitional justice and reconciliation processes to be as inclusive as possible, forced migration crises typically involve large populations in resourcestrapped regions, which may in some cases limit or render impractical the provision of direct, tangible benefits to refugees and idps (de Greiff 2006). The contributions transitional justice and reconciliation processes may make, including to the resolution of displacement, may be undermined by participants’ disappointment and disillusionment. Maximizing the value of participation in such processes requires the careful management of expectations through clear and regular communication with displaced persons and other actors about the benefits available; the systems through which they will be distributed; and their limitations, eligibility criteria, and timelines (Ramírez-Barat 2011). Bringing Host and Diaspora Communities into Focus While many previous discussions of the links between transitional justice, reconciliation, and displacement have focused on the implications of these processes for return movements, on both principled and practical grounds it is also important to recognize and strive to redress the injustices experienced by those who do not intend to return permanently to their countries or communities of origin. As Ndejuru (this volume, chapter 6) underlines, the descendants of former displaced persons may also have significant roles to play in efforts to come to terms with past viola-

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tions. Equally, transitional justice and reconciliation processes involving refugees and idps should strive, where relevant, to equitably engage host community members, recognizing that, in many cases, they too have been directly affected by human rights violations, including the injustices associated with displacement. Involving host and diaspora communities in reconciliation and transitional justice processes can strengthen the contributions these processes make to peacebuilding and the durable resolution of displacement in several ways. For example, engagement in truthtelling and reconciliation initiatives may improve relations between the state of origin and diaspora groups, yielding more robust external support for development activities and democratic reforms. As Celestina (this volume, chapter 4) demonstrates, even when idps and their hosts have not been in open conflict, persistent fears and perceived wrongs may divide communities and impede a sense of acceptance and emplacement. Engaging host community members alongside displaced persons and returnees in reconciliation processes, including through economic activities intended to foster coexistence, may therefore be an important element of efforts to increase the viability of local integration as a durable solution to displacement. Effective Timing of Transitional Justice and Reconciliation Initiatives Researchers, policymakers, and practitioners increasingly recognize that redressing past injustices, advancing reconciliation, and sustainably resolving displacement are long-term processes that require prolonged support. Indeed, calls for long-term engagement have become a mantra among many of the government agencies, international organizations, and ngos involved in efforts to redress past injustices and support the resolution of displacement. The challenge now is to adapt practice accordingly. This entails moving beyond a model in which humanitarian agencies simply hand over programs, such as coexistence activities, to local actors when they begin to disengage from work in particular post-conflict countries. Too often the funding to sustain these initiatives post-handover is inadequate, and they may not match the goals and perspectives of the local agencies charged with continuing them. In order to strengthen the sustainability of initiatives intended to promote justice and reconciliation in displacement-affected communities, local actors’ early and sustained engagement in the design and leadership of these programs should be encouraged. Equally, programmatic interventions should be contextual-

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ized within the ongoing work of religious communities and traditional leaders, recognizing that these are among the institutions most likely to have a sustained role in resolving disputes, seeking justice, and advancing reconciliation in post-conflict contexts. At the same time as long-term support for the pursuit of justice and reconciliation should be provided, experiences analyzed in the preceding chapters and elsewhere underline that we cannot assume a linear relationship between the passage of time and the emergence of a sense of justice and reconciliation. Indeed, attempts to rectify past wrongs and advance reconciliation may in fact raise new claims and strengthen the view that more must be done to address them. For instance, among poor South Africans the belief that they are “victims of historical land injustices” is “becoming more, not less widespread over time,” despite the conclusion of the work of the Land Claims Commission established to redress the practices of dispossession that were at the heart of apartheid (Gibson 2009, 28). Accordingly, longterm approaches should be integrated into national transitional justice strategies from an early stage, recognizing that different generations may have varying views, concerns, and needs. Effective timing of transitional justice and reconciliation processes involving refugees and idps entails not only sustained long-term engagement, but also strategic early engagement, particularly prior to large-scale returns. Through peace education, vocational and leadership training programs, and legal empowerment efforts, protracted displacement situations may be used as an opportunity to prepare displaced persons to help establish peace and prosperity in return communities (Milner this volume, chapter 1; Purkey 2014). Rethinking Efforts to Restore the Status Quo Ante Some readings of international law suggest that the aim of efforts to redress past injustices, such as the violations that prompt refugee flows, should be to restore the status quo ante – that is, they should strive to reestablish the conditions that would have existed had the violation not occurred. According to this view, restitution sits at the top of a hierarchy of potential approaches to remedying past injustice. From an ethical perspective, this position may also have strong appeal. However, it is difficult in practice to determine precisely what this proposition would entail, particularly given that displacement is often driven by abuses such as rape, torture, and murder, which cannot be “undone.” This difficulty, as Dumper (this volume, chapter 14) stresses, is especially prominent when

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dispossession spans generations. Even when it is possible to identify with a reasonable degree of confidence what the restoration of the status quo ante might involve, at least in terms of questions such as land distribution, actually (re)creating these conditions may generate major new injustices, particularly if doing so would entail ousting people who have long lived on displaced persons’ former lands. As Smit (this volume, chapter 3) emphasizes, at the same time as housing, land, and property restitution efforts may play an important role in increasing displaced persons’ openness to reconciliation, they may undermine reconciliation prospects among other community members, such as those who may be ousted to make way for returnees, or landless populations who do not benefit from the restoration of land distribution patterns that were often inequitable in the first place. There are undoubtedly instances in which giving up on the idea of attempting to restore the status quo ante would be an unacceptably raw deal; the challenge for policymakers and practitioners is to know when prioritizing restitution (for dispossession and other related violations) is the most appropriate approach legally, morally, politically, and operationally, and when other approaches should be brought to bear. Opinions vary, including among contributors to this collection, over how and when this call should be made, and by whom. Yet it is increasingly clear that while restitution may in some circumstances be an essential element of efforts to redress the displaced and advance reconciliation, scholars, policymakers, and practitioners alike need to more widely and frankly recognize the limits of this approach. I M P L I C ATI ON S FOR FU TU R E R E S E A RC H

Research and practice at the crossroads of displacement, reconciliation, and justice are still in relatively early stages. Efforts to date, including this volume, have mapped out some of the ways in which transitional justice and reconciliation processes, and the questions they raise, may affect forced migration dynamics. Case studies such as those included in parts 2 and 3 of this book have clarified how, in practice, displaced populations and diaspora communities have participated in efforts to promote accountability and advance reconciliation. At their best, refugees’ and idps’ participation in these processes may translate into practical gains in terms of increased stability and the more sustainable resolution of displacement. Beyond these pragmatic considerations, the case has been made from a normative perspective that the injustice of forced migration

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itself should be addressed as a substantive concern in justice processes, despite the legal and political challenges this may pose. Building on these initial arguments and conclusions, the following theoretical and practical issues are some of the many that are ripe for exploration and have significant implications not only for scholarship but also for policy and practice. In the emerging literature on the nexus between forced migration, transitional justice, and reconciliation, certain cases have, with good reason, attracted particular attention, such as experiences in Bosnia and Colombia. The contributors to this collection have highlighted some important cases that have previously received relatively little attention, such as the experiences of (formerly) displaced Lebanese and Vietnamese populations. As this research agenda evolves, it will be important to look at other comparatively neglected cases, and to analyze evolving processes in, for example, Arab countries grappling with the consequences of uprisings across the Middle East. Such examinations would do well to consider not only the scores of displaced persons who are officially recognized as refugees and idps, but also those who remain under the radar, unregistered and often afraid to return to their countries and communities out of fear that they may be subject to prosecutions or retribution due to, for example, their religious affiliation, ethnicity, or perceived support for ousted regimes. Further examinations of the experiences and involvement of host and diaspora communities in transitional justice and reconciliation processes may also make timely contributions to the evolving body of literature, considering in particular the ways in which integration models shape the engagement of diaspora groups in local and transnational accountability and reconciliation initiatives. While many armed conflicts and displacement crises have strong regional dimensions, researchers have only recently begun to carefully consider the intersection of displacement, transitional justice, and reconciliation from a regional perspective; further efforts in this direction promise to be timely. As aforementioned, more careful, long-term monitoring and comparative analysis of the impacts of particular transitional justice and reconciliation initiatives on displaced communities, and on the resolution of displacement, will undoubtedly contribute significantly to the maturation of this emerging field of inquiry. This is not to imply that the results and value of transitional justice and reconciliation efforts can necessarily be fully captured in quantitative investigations or impact assessments. However, such approaches may play significant roles in, for example, further testing the claim that transitional justice processes may facilitate the reso-

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lution of displacement, and clarifying the circumstances under which these processes may be mutually reinforcing. Future studies may also beneficially explore the complex relationship between impunity, amnesties, and efforts to resolve conflicts and end displacement, as well as the links between transitional justice and reconciliation processes and the return of demobilized combatants.3 In many countries emerging from conflict and displacement crises, formal institutions lack the capacity to deal with the legacies of past violations. Instead of relying on formal institutions, diverse traditional or customary approaches to addressing grievances and resolving conflict have been applied, sometimes in adapted forms. These approaches have attracted considerable attention from transitional justice scholars over the past decade; however, this work has rarely examined the efficacy of these approaches for refugees and idps, who may have become disconnected from the social networks and governance systems on which they are founded.4 Considering the ways in which displaced persons engage with diverse customary justice institutions, and the effects of such engagements, could represent a significant contribution to scholarship and informed practice. Equally, Ndejuru reminds us of the fruitfulness of efforts to better understand the roles of culture, creative expression, and narrative in gradual processes of coming to terms with past abuses, including in displaced and diaspora communities. The implementation of increasingly draconian asylum policies by states such as Australia serves as a bleak reminder that efforts to understand the injustices associated with displacement should not focus only on violations committed in displaced persons’ countries of origin: refoulement and other abuses against asylum seekers perpetrated by and within host states also merit the attention of scholars, policymakers, and practitioners alike. As debates on accountability for displacement evolve, increased attention may also be devoted to the claims host states may have for compensation or other forms of redress, and to the questions of justice raised by displacement linked to the effects of climate change.5 It is anticipated that in the coming decades, large numbers will be uprooted by increasingly destructive disasters associated with climate change. This will result in wrongs and losses that may demand remedy, whether through financial compensation or through new measures such as enabling resettlement as a kind of remedy. Allocating responsibility for redressing those displaced in connection with the effects of climate change will raise complex moral, legal, political, and logistical questions, which may benefit from the contributions of researchers from a range of disciplines.

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Advancing research on displacement, transitional justice, and reconciliation is not only about identifying innovative and important questions for future investigation. It is also a matter of how this work is undertaken. This collection reflects the commitment to dialogue and collaboration between scholars and practitioners from different fields and regions that has characterized much of the emerging body of work on this issue. As this research agenda evolves, it will be strengthened by continued investment in this approach, and by the engagement of an increasingly diverse range of voices in the debate.

notes 1 I would like to thank Kirsten McConnachie for her thoughts on this issue. 2 On transitional justice processes involving displaced former combatants and perpetrators, see for example Clark (2014). 3 Such investigations could build on the excellent work undertaken by organizations such as the Refugee Law Project at Makerere University. 4 See McCallin (2012) for an important exception to this observation. 5 For an initial discussion of host state claims for redress related to the displacement of Colombian refugees, see Cantor (2011). For a preliminary examination of justice questions raised by forced migration associated with the effects of climate change, see Bradley (2012c).

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preface

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13 Contributors

ian b. anderson is a former development officer of the Canadian International Development Agency. In this capacity, he was posted to the Kandahar Provincial Reconstruction Team in Kandahar, Afghanistan (2010–11). He was an international development fellow of the Aga Khan Foundation in Kulob, Tajikistan (2009–10), and worked as a research assistant on a number of Track Two diplomacy projects focused on the Middle East and South Asia (2007–09). He now serves as a political officer with Canada’s Department of Foreign Affairs, Trade and Development. john bell is the director of the Middle East and Mediterranean Programme at the Toledo International Center for Peace in Madrid. He was formerly the Middle East director in Jerusalem for Search for Common Ground, a global conflict resolution organization. He is also a former United Nations and Canadian diplomat who served as a political officer at Canada’s embassy in Cairo, a member of Canada’s delegation to the Refugee Working Group in the peace process, political advisor to the personal representative of the secretary-general of the United Nations for southern Lebanon, advisor to the Canadian government during the Iraq crisis in 2002–03, and consultant to the International Crisis Group on developments in Jerusalem. He is a founding member of the Jerusalem Old City Initiative (University of Toronto and University of Windsor). chaloka beyani is associate professor of international law at the London School of Economics. He currently serves as the United Nations special rapporteur on the human rights of internally displaced persons. He played a leading role in the negotiation and drafting of the African Union Convention for the Protection and Assistance of Internally Displaced

410

Contributors

Persons in Africa (Kampala Convention), and the Pact on Peace, Stability and Development of the Great Lakes Region. He holds a doctorate in law from the University of Oxford, and his books include Protection of the Right to Seek and Obtain Asylum under the African Human Rights System (Martinus Nijhoff, 2013) and Human Rights Standards and the Free Movement of People within States (Oxford University Press, 2000). megan bradley is an assistant professor in the Department of Political Science and with the Institute for the Study of International Development at McGill University. She is also a non-resident fellow in the Foreign Policy Policy Program at the Brookings Institution, where she works with the Brookings-lse Project on Internal Displacement. She has a doctorate in international relations from the University of Oxford, and has worked with organizations including the Office of the United Nations High Commissioner for Refugees, the International Development Research Centre, and the Canadian Department of Foreign Affairs and International Trade. Her publications include Refugee Repatriation: Justice, Responsibility and Redress (Cambridge University Press, 2013). mateja celestina holds a PhD from the Humanitarian and Conflict Response Institute at the University of Manchester. She currently works as a research associate at the Centre for Trust, Peace and Social Relations at Coventry University. Her research focuses on internal displacement as process, category, and experience, with particular reference to Colombia. ayşe betül çelik is an associate professor of political science and conflict resolution at Sabanci University in Istanbul, Turkey. She holds a PhD in political science from State University of New York at Binghamton, and has published several articles and a book on Turkey’s Kurdish Issue, forced Kurdish migration, and the role of ngos in ethnic conflicts. mick dumper is a professor of Middle East politics at the University of Exeter. He has published on the permanent status issues of the Middle East peace process, religious institutions in the Middle East, and the urban politics of the Middle East. He has also conducted research on comparative perspectives on the Palestinian refugee issue. roger duthie is a senior associate in the research unit at the International Center for Transitional Justice. Since joining the unit in 2004, he has worked on research projects examining the relationships between transi-

Contributors

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tional justice and displacement, development, and the reintegration of excombatants. He has edited the volumes Transitional Justice and Development: Making Connections (with Pablo de Greiff, Social Sciences Research Council, 2009) and Transitional Justice and Displacement (Social Sciences Research Council, 2012). huma haider is a principal research fellow at the Governance and Social Development Resource Centre based at the University of Birmingham. She works with conflict, humanitarian, and development advisors in donor agencies and conducts policy research on conflict, justice, and human rights. She is a licensed attorney and worked previously in the Prosecution Support Section of the War Crimes Chamber of the Court of Bosnia and Herzegovina. nancy maroun holds a masters in social work from Saint Joseph University in Lebanon, and a PhD in sociology from the State University of New York at Buffalo. She is currently the senior project coordinator of the United Nations Development Programme for the Support to Economic Recovery, Community Security and Social Cohesion in Lebanese Communities Affected by the Syrian Crisis. She previously worked with internally displaced persons through un programs, and was involved in interventions to reconcile Christians and Muslims involved in massacres and displacement during the civil war in Lebanon. She has lectured at universities in Lebanon and the United States. james milner is an associate professor in the Department of Political Science at Carleton University. He has worked extensively as a researcher, practitioner, and policy advisor on issues relating to refugees, peacebuilding, African politics, and the United Nations system. He is author or coauthor of several books and articles, including Refugees, the State and the Politics of Asylum in Africa (Palgrave Macmillan, 2009) and unhcr: The Politics and Practice of Refugee Protection (Routledge, 2012). michael molloy is a senior fellow at the Graduate School of Public and International Affairs at the University of Ottawa and co-director of the Jerusalem Old City Initiative at the University of Windsor. He was ambassador of Canada to Jordan from 1996 to 2000, and special coordinator for the Middle East Peace Process at the Department of Foreign Affairs and International Trade from 2000 to 2003. A specialist in refugee policy and operations, he was directly involved in Canadian programs to resettle

412

Contributors

refugees from Czechoslovakia, Uganda, Latin America, Indochina, and East Africa, and in designing refugee related policies, regulations, and programs. paige morrow is currently head of Brussels operations for the public interest law firm Frank Bold. She is also a Chevening scholar at the London School of Economics and Political Science. She has held previous roles as a legal fellow at the Kenya National Commission on Human Rights, as a researcher at the lse Centre for the Study of Human Rights, and as a lawyer practicing at a national Canadian law firm. Morrow holds degrees in law and international development from the University of British Columbia Faculty of Law and McGill University. She is a member of the Law Society of British Columbia. lisa ndejuru is a Rwandan-Canadian psychotherapist, community organizer, and artist-researcher, and has been exploring questions of dislocation and reconciliation for more than twenty years. Her current doctoral research at Concordia University in Montreal looks at storytelling and arts-based methodologies for reconciliation and social transformation. thien-huong t. ninh is a lecturer at California State University, Dominguez Hills. Her research interests include diaspora, race, ethnicity, comparative religion, and international migration and transnationalism. She received her PhD in sociology from the University of Southern California in 2013 and was a Gaius Charles Bolin Fellow at Williams College between 2012 and 2014. For more information about her publications, research, ethnographic films, and other works, please visit http://sites.williams.edu/ttn1/. anneke smit is an assistant professor in the Faculty of Law at the University of Windsor. She holds a PhD in law from the University of Reading and has worked with international organizations and ngos in the Caucasus and the Balkans as well as the Canadian Department of Justice. She researches and teaches in the areas of forced migration, property law and theory, and urban planning. Dr Smit is the author of The Property Rights of Refugees and Internally Displaced Persons: Beyond Restitution (Routledge, 2012) and co-editor of Private Property, Planning and the Public Interest in Canada (ubc Press, forthcoming 2015). roberto vidal lópez is a professor of the history of law, human rights, and migration law at Pontifica Universidad Javeriana in Bogota, Colom-

Contributors

413

bia. He has written extensively on issues of human rights, transitional justice, and displacement in Colombia, and is collaborating with the Centre for Refugee Studies at York University and the Refugee Research Network to support the creation of a Latin American Forced Migration Research Network. luiz vieira served as chief of mission for the International Organization for Migration in Timor-Leste from 2002 to 2010. He was extensively involved in supporting government-led policy initiatives in the aftermath of the mass displacement crisis of 2006 and worked closely with the Timor-Leste’s Inter-ministerial Commission in the development of the country’s National Recovery Strategy. He has been working with displaced populations since 1994. He holds a political science degree from the State University of New York at Albany, an MSc in development economics from soas, and is currently enrolled in an llm program at soas. nicole waintraub is a senior research associate at the University of Ottawa, where she specializes in running Track II dialogues in South Asia and the Middle East. She has an ma in public and international affairs from the University of Ottawa. jennifer winstanley is a Canadian lawyer who currently practices at a boutique civil litigation firm in Vancouver, bc, specializing in plaintiff side class action litigation. She graduated from Columbia University with a ba in political science and completed law school at the University of British Columbia. Winstanley worked with Bridges across Borders providing community legal education in Cambodia and Northern Thailand in 2007 to 2008. She has also worked with passop in South Africa on a project assisting refugees to navigate the immigration system, and has volunteered as a member of the Board of Directors of the Inland Refugee Society.

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preface

415

13 Index

Abbas, Mahmoud, 310, 312, 313 Abkhazian displaced persons, 77 Abu Sitta, Salman, 338 Accord on Resettlement of the Population Groups Uprooted by the Armed Conflict (Guatemala; 1994), 12 Adıyaman Bar Association, 209 Afghanistan, 37, 40, 46n5, 80 Afghan refugees, 39, 41 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, 296n15 Agencia Presidencial para la Cooperación Internacional y la Acción Social, 165n8 An Agenda for Peace (Boutros-Ghali), 32 Ali, Mohammed, 283 Ali, Taisier, 34, 43 Alkatiri, Mari, 250, 269 Allied Control Council Law No. 10, 277 Amer, Ramses, 121n2 Anatolia, 210, 221n24 Anderson, Ian B., 20, 298–322, 348

Angkor, 118 Angola, 39 Ankara, 195, 218n2 Annan, Kofi, 33 Aparicio, Juan Ricardo, 92–3 apology, 300, 301, 313, 314 Arab League, 311 Arab Peace Initiative, 311 Arab Summit, 311 Arafat, Yasser, 310 Argentina, 53 Arizona Market, 181 Armenia, 77 Assefa, H., 198 Association of Milk Producers (BiH), 182 asylum, 24n6, 41, 44, 45, 170, 357 Atalay, Beşir, 218n1 Atran, Scott, 308, 315 Attanasio, David L., 73 Australia, 118, 122n11, 245n3, 250, 313, 357 Axelrod, Robert, 308, 315 Azerbaijan, 77 Babbitt, Eileen, 188 Ballard, Megan J., 74

416

Index

Bangladesh, 41 Banja Luka, 177, 183 Ban Ki-moon, 76, 345 Barak, Ehud, 310, 311 Barkan, Elazar, 300, 325 Barrett, Michael, 92 Bar-Tal, Daniel, 136, 198, 199 Baucau, Timor-Leste, 260 Bauman, Zygmund, 101, 102 BDP (Barış ve Demokrasi Partisi), 220n17 Beilin, Yossi, 310 Beirut, 225 Belfast, 80 Bell, John, 20, 298–322, 348 Bennink, Gemma H., 136 Blackstone, William, 84n2 Boal, Augosto, 144n2 Bogotá, 90 Borer, Tristan Anne, 249, 263, 266, 271–2 Borneman, John, 107 Bosnia and Herzegovina (BiH), 168–94; causes of displacement in, 168–9; coexistence programs in, 37–8, 170; education in, 179, 184–5; ethnic demographics, 192n3; failure to achieve full restitution in, 63; housing, land, and property restitution in, 10, 19, 64–5, 68, 71, 74, 170, 172; impact of criminal prosecutions in, 25n14; minority groups in, 168–9, 170, 172, 173, 174, 176, 178–9; numbers of displaced persons in, 169–70, 173; police reform initiative in, 60; political participation of refugees in, 39; refugees from, 39; religious identity in, 180, 193n18; return and reintegration in, 52, 58, 168–94; unemployment

rate, 175; UN Security Council resolution on, 46n5 Bosniak-Croat Federation, 169, 179 Bosniaks, 182, 193n18 Botcharova, Olga, 80–1 Boutros-Ghali, Boutros, 32 Boyd, Charles (General), 181, 193n20 Bradley, Megan, 3–25, 345–58; on conflict management and resolution, 38; on displaced persons’ relation to the state, 55; on the importance of choice for displaced persons, 64; on reconciliation, 31, 35, 50, 107; on the restoration of refugees’ rights, 51 Bravo, Anna, 133 Building the Future Together (TimorLeste), 260–1 Bureau of Democracy, Human Rights and Labor, 180 Burma, 37, 347 Burundi: conflict-induced displacement in, 297n24; housing, land, and property restitution in, 41–2; impact of refugee “spoilers” on, 37; Peacebuilding Commission and, 33, 46n4; Peace Villages in, 21; refugees from, 39, 40, 76; regional impact of conflict in, 35; in 1994 Rwandan genocide, 135; Rwandan refugees in, 125, 134; un Security Council resolution on, 46n5 Burundian refugees, 39, 40, 76 Byng-Hall, John, 128 Calogero, Pietro Anders, 80 Cambodia, 14, 16, 39, 106–22, 297n19 Camp David negotiations, 298, 299, 309, 310 Canada, 17–18, 118, 122n11, 125, 134–5, 313

Index

Cape Town, 81 Catholic Church: in Bosnia and Herzegovina, 193n18; in Cambodia, 14, 108, 111–18, 120; in Colombia, 151, 165n8 CAVR (Commission for Reception, Truth and Reconciliation), 247, 248, 251, 252–9, 269, 273n7, 273n12, 274n22 Celestina, Mateja, 17, 87–105, 350 Çelik, Ayşe Betül, 11, 16, 21, 195–222 Central African Republic, 46nn4–5 Central Fund for the Displaced (Lebanon), 228, 245n1 Centro de Investigación y Educación Popular (Colombia), 158 Chad, 46nn4–5, 65 Chayes, Antonia, 190 Chigas, Diana, 187 children, 57, 60, 138–9, 142, 153, 179, 185 Chile, 53 Chimni, B.S., 48, 49 China, 121n6 Christianity: Greek Catholic, 245n4; Greek Orthodox, 245n4; Maronite, 245n4; Serbian Orthodox, 193n18. See also Catholic Church Circassian people, 343n6 Civil Society Commission (Colombia), 157, 166n15 civil society organizations (CSOs): defined, 165n5; documentation of displacement, 203, 205; relations with the state, 214–16, 217; and transitional justice processes, 55, 61–2; and truth-telling initiatives, 158–9. See also non-governmental organizations (NGOs) climate change, 357

417

Clinton, Bill, 298, 310 Clinton Parameters, 310–11 CODHES (Consultoría para los Derechos Humanos y el Desplazamiento), 105n7, 152–3, 165nn8–9 coexistence programs, 37–8, 43–4, 185–90 Colombia, 87–105, 147–67; assassination rates, 93; causes of displacement in, 88–90, 150–1; conflict between IDPs and locals in, 17, 87–105; Constitutional Court, 153–4, 155, 157, 158, 163, 165–6n11, 166n12, 166n15; ethnic minority groups in, 153, 155; history of violence in, 148–9; housing, land, and property restitution in, 158–9, 160, 164; IDP organization in, 12, 62; legislation for idps, 153, 154, 155, 156, 157–8, 165–6n11; numbers of displaced persons in, 105n7, 147, 151–2, 165nn9–10; peace construction in, 164; political system, 150; power-sharing agreements, 149–50, 165n6; security of IDPs in, 58, 59; transitional justice program, 20–1, 60–1, 89–90, 105n6, 297n19; truth-telling initiatives in, 147–8, 154–64; women in, 55, 153 Colombian Institute for Agrarian Reform, 94 Commission National de Terres et Autres Biens (Burundi), 41, 42 Commission of Inquiry into Post-election Violence (CIPEV; Kenya), 279, 281, 297n18 Comoros, 46n4 compensation: adequate, 327; defined, 301

418

Concordia University, 124, 126–7, 144n1 Conference of Catholic Bishops, 158, 165n9 Consultancy in Human Rights and Displacement, 158 Côte d’Ivoire, 37, 46nn4–5 Council of Europe, 78 Council of Ministers (Lebanon), 226 Cramer, Christopher, 272 Croats, 172, 182 Cromwell, Oliver, 328 Cundinamarca, Colombia, 87, 93 Cyprus, 46n5 Czech Republic, 313 Dadaab refugee camp (Kenya), 37 Daniel, E. Valentine, 102 Danish Refugee Council, 184 Darfur, 65, 295n6 Daughters of Mary, 109 Davis, Richard, 308 Davite, Lilia, 133 Dawson, Graham, 129, 138 Dayton Agreement, 19, 169, 173, 184, 192n6 Decision of the UN Secretary-General’s Policy Committee on Durable Solutions (2011), 13 de Greiff, Pablo, 49–50, 54 Democratic Initiative (Turkey), 218n1 Democratic Republic of Congo, 37, 46nn4–5, 125, 295n6, 297n24 Deng, Francis, 153, 203, 206 diaspora communities, 17–18, 61, 123–44, 332, 352–3 Di John, Jonathan, 272 Dili, 259, 268, 269, 275n29 displaced persons: children, 57, 60, 280; choice of return for, 64, 91,

Index

261; civil society organization of, 55, 61–2; economic security for, 176–7; right of return, 202, 208; safety and security for, 58–60, 62, 81–2, 93, 158–9; in transitional justice processes, 12; urbanization of, 63–4, 65, 67n3, 90, 150–1, 203; women, 51, 55, 57, 99, 280; youths, 33–4, 38, 184–5, 187, 279, 295n7. See also displacement; ethnic minorities; internally displaced persons (IDPs); refugees displacement: as an “open conduct” crime, 293–4; climate change as future cause of, 357; contestations about, 162–3, 163–4; as a crime against humanity, 15, 277, 278, 282, 285–93; development-induced, 81; human security approach to, 218n3; intangible aspects, 301; protracted, 6–7, 22–3, 30, 38, 40, 49, 77, 342n1; psychosociological implications, 243; rights-based approach to, 11, 21, 196, 197–200, 217, 219n5, 247; scholarship on, 13; supersession thesis as it relates to, 324, 327, 332, 336, 342. See also durable solutions to displacement; reintegration; return Diyarbakır Human Rights Organization, 221n20 Document of National Accord (1990; Lebanon), 223 drama therapy, 144n2 drug trafficking, 149, 155 Druze community, 225, 229–43, 245n3, 343n6 Drvar, 177, 186, 187 Dumper, Mick, 23, 321n2, 323–44, 354–5

Index

Dunleavy, Thomas (Father), 110 durable solutions to displacement: and community perceptions of returnees, 268; emplacement as, 88; failures to achieve, 53–4; material vs. rights-based support for, 307–9; and peacebuilding, 51; Pinheiro Principles and, 76–8; as a policy construct, 8; in post-conflict agreements, 19; repatriation as, 336; and the rights-based approach to displaced persons, 200; scholarly approaches to, 90–1; stability as prerequisite for, 270, 271, 336. See also reintegration; return Duthie, Roger, 16, 47–67 East Timor. See Timor-Leste Ecuador, 152 Egypt, 310 Eldoret, Kenya, 283, 284, 287 Elhawary, Samir, 73, 78 Elias, Norbert, 97–8, 98–9, 101 emplacement, 87, 88, 91, 104 English language, 115, 139 Erekat, Saeb, 312 Eritrea, 37, 46n5 Escobar, Pablo, 165n7 Ethiopia, 37, 46n5 ethnic minorities: in Bosnia and Herzegovina, 168–9, 170, 172, 173, 174, 176, 178–9; in Cambodia, 106–22; in Colombia, 153, 155; in Kenya, 276, 286–7, 287–8, 289, 291; and rights-based approaches, 197; in Turkey, 195–6, 202–3, 209, 212–14, 220n17 European Commission, 218n2 European Commission against Racism and Intolerance, 173

419

European Court of Human Rights, 220n18 Fafo Institute for Applied International Studies, 343n7 Fagen, Patricia Weiss, 64 FARC (Revolutionary Armed Forces of Colombia), 149, 154, 160, 161, 164, 167n17 Felma, Shoshana, 132 Foča, 177 Forced Displacement and Famine: National Public Hearing (CAVR), 273n9 forced migration. See displacement Fort Laramie, WY, 323 Foundation for Society and Legal Studies (TOHAV), 205 Fox, Jonathan, 130 France, 114, 122n11, 231 Free Patriotic Movement (FPM; Lebanon), 230–1 French language, 115, 139 gacaca tribunals, 123 Gahima, Gerald, 8 Gaitán, Jorge Eliécer, 89 Galilee, 332 Galtung, Johan, 29, 34 Ganson, Brian, 187 Gaza, 303, 310, 312, 332, 333 General Framework Agreement for Peace in Bosnia and Herzegovina (1995), 19, 169, 173, 184, 192n6 Genesis Project, 186, 188 Geneva Accord (2003), 311 Geneva Conventions, 297n19, 298, 308 genocide, 3, 8, 125–6, 127, 281–2, 345 Georgia, 46n5, 77–8

420

Index

Ghana, 40 Ghanem, Tania, 51, 61 Gibson, James L., 264 Göç-Der (Göçmenlerle Yardımlaşma ve Dayanışma Derneği), 205, 208, 209, 211, 222n26 Govier, Trudy, 300 Gready, Paul, 255 Greek Orthodox Church, 245n4 Guatemala, 12, 39, 46n4, 51, 52, 56, 61 Gubavica, Bosniak-Croat Federation, 184 Guiding Principles on Internal Displacement (1998): among other international frameworks, 13; call for displaced persons’ engagement, 351; and Colombian IDP legislation, 153; description of IDPs, 23–4n4; on discrimination against IDPs, 201; rights-based nature, 196–7; translation into Turkish, 206, 219n10 Guinea, 37, 41, 46n4 Guinea-Bissau, 46n4 Gureyeva-Aliyeva, Yulia, 77 Gusmão, Xanana, 250, 262 Habibie, B.J., 250 Hacettepe University Institute of Population Studies, 205, 219n9 Haider, Huma, 17, 22, 52, 168–94 Haiti, 46nn4–5 Hakkâri Mayın İzleme Grubu, 213, 221n22 Hamad, Ghazi, 308 Hamas, 308, 312 Hammond, Laura, 49 Hayner, Priscilla, 248–9 High, Steven, 125 Hilal, Leila, 65

Historical Memory Group (Colombia), 156 Hobeika, Elie, 245n1 home-making processes, 87, 171, 174–5, 191 host countries/communities: attitudes to displaced persons, 95–103, 212–13; needs and concerns of, 16, 17; overlooked in Pinheiro Principles, 77; participation in justice and reconciliation processes, 92, 352–3; in situations of protracted displacement, 49, 332 housing, land, and property (HLP) restitution, 68–84; challenges to, 72–8, 327–8; mechanisms for arbitrating, 41; and prolonged exile, 40; and reintegration, 57, 66, 172–3; religious property, 334; in the resolution of displacement, 349; and return, 64–5, 68, 170, 172, 173–4; and secondary occupants, 23, 74–6; vs. land redistribution, 73–4 Housing and Property Directorate (HPD; Kosovo), 73 Hovil, Lucy, 66 humanitarian organizations, 15, 50, 64, 78, 353. See also civil society organizations (CSOs); non-governmental organizations (NGOs) human rights: discourse, 153; and drug trafficking prosecutions, 155; and durable solutions to displacement, 7, 47, 48, 51; forced migration as a violation of, 247, 270, 327; in foreign policy, 111, 119; in the human security approach, 218n3; and IASC framework on IDPs, 7; of internally displaced persons, 58; and reconciliation, 217; and transitional justice, 8

Index

Human Rights Association, 205 Human Rights Foundation, 210 Human Rights Watch, 166n14, 205, 297n17 Huseynov, Tabib, 77 Framework on Durable Solutions for Internally Displaced Persons (2010), 7, 13, 47, 48, 200, 201, 351 Imagine Coexistence project (BiH), 170, 185–8, 189, 190 indigenous peoples, 323, 324, 325, 326 Indonesia, 249–50, 251, 253, 273n12 Institute for Research on Dialogue and Peace, 123 Integrating Internal Displacement in Peace Processes and Agreements (McHugh), 12 Inter-agency Standing Committee (IASC), 7, 13, 47, 48, 200, 201, 351 Inter-American Commission on Human Rights, 166n14 Inter-American System, 153 internally displaced persons (IDPs): conceptualized, 23–4n4, 104n2; durable solutions for, 48, 77; emplacement of, 87, 88, 91, 104; indicators of rights of, 157, 166n16; integration into host communities, 78, 87–105, 212–13; law and policy frameworks for, 89–90, 105n6, 153–4, 156, 157–8, 280; marginalization of, 16; organizations for, 61, 158–9, 164; participation in justice and reconciliation processes, 11, 47, 351; relationship with the state, 50, 209–10; restitution and compensation for, 57–8; urbanization of, 63, 65, 67n3, 90, 150–1, 203; varying experiences of, 95 IASC

421

Internally Displaced Persons and Affected Communities Act (2012; Kenya), 280 International Committee of the Red Cross, 165nn8–9 International Covenant on Civil and Political Rights, 39 International Criminal Court (ICC): jurisdiction, 281–3; in Kenya, 15, 277, 291, 292–3, 294, 297n18; Rome Statute, 277, 278, 282, 285–9, 292, 296n14; Trust Fund for Victims, 296n14; in Uganda, 10 International Criminal Tribunal for Rwanda (ICTR), 123, 277, 285, 287 International Criminal Tribunal for the Former Yugoslavia (ICTY): on defining “policy,” 290; deportation as crime against humanity, 277, 282, 285, 288, 294n; impact on return movements, 25n14, 58, 65 International Crisis Group, 181 International Force East Timor, 250 International Law Commission, 301 International Organization for Migration, 57, 249, 253 International Refugee Rights Initiative, 23n1 Ipak (NGO), 185 Irani, George E., 244 Iraq, 4, 46n5, 59, 74, 191 Isangano performance troupe, 126, 127 Islam: Druze, 245n3; Ismaili, 245n3; Palestine in history of, 335; radical, 340; Shia, 245n4; Sunni, 245n4 Islamic Conference, 311 Israel, 298–322; Arab citizens of, 305–6, 331, 340; demographics, 343n6; Druze community of,

422

Index

245n3; establishment as state, 324, 340; immigrants from Soviet Union to, 339; intangible needs, 299, 304–7, 312, 317–20; as a Jewish state, 299, 304, 305, 310, 316, 327, 336, 340; land confiscations, 332, 337; and Lebanon, 223, 231; New Historians, 321n7; in occupied Palestinian territories, 298, 307, 325; and the Oslo Process, 309; and recognition of Palestinian refugee situation, 20, 304, 310–11, 312, 313–14; and the war of 1948, 303, 305, 309, 310, 338; and the war of 1967, 310, 332 Istanbul, 195, 218n2 Italy, 114 Itorero program, 137 Izmir, 212 Jalla, Daniele, 133 Japan, 121n6, 122n8, 122n11, 302 Al Jazeera, 312 Jerusalem, 332, 335 Johnson, David Read, 144n2 Jordan, 245n3, 298, 307, 309, 310, 333 Jumblatt, Kamal, 245n6 Jumblatt, Walid, 229, 230, 234, 236, 237, 245n1, 245n6 Kabul, 80, 81 Kakuma refugee camp (Kenya), 37, 40 Kalenjin people, 15, 283, 291, 295n7 Kälin, Walter, 174 Kamba people, 291 Kampala Convention, 296n15 Kamungi, Prisca, 15 Kapsabet Town, Kenya, 283, 284, 287 Kaul, Hans-Peter (Judge), 285, 291, 292

Kenya, 276–97; ethnic minorities in, 276, 286, 287–8, 289, 291; numbers of IDPs in, 276; and Peacebuilding Fund, 46n4; peace education programs in, 37; ratification of Rome Statute, 282, 294n2; refugees in Uganda, 294n1; reintegration in, 52; reparations and resettlement of IDPs in, 279–80, 296n12; Rwandan refugees in, 134; skills training for refugees in, 40; Task Force on Resettlement, 279 Kenya Human Rights Commission (KHRC), 280, 295n11 Kenya National Commission on Human Rights, 295–6n11, 297n18 Kenyatta, Uhuru Muigai, 277, 283, 284, 286, 287, 290, 294 Kerry, John, 3 Khalidi, Rashid, 341 Khmer language, 115 Khmer people, 111, 112, 116–18 Khmer Rouge, 109, 110, 116 Khouri, Rami, 305 Kibaki, Mwai, 276, 288 Kikuyu people, 287, 288, 291 Kiplagat, Bethuel, 296–7n16 Kisii people, 291 Knight, W.A., 29 Knudsen, John Chr., 102 Korean comfort women, 302–3 Korean language, 115 Kosgey, Henry, 283, 291 Kosovo, 59–60, 68, 71, 73, 74, 80 Kosovo Spatial Plan, 80 Kozarac marketplace, 187 Kurban, Dilek, 211 Kurdish Opening, 195, 214, 218n1 Kurds, 16, 21, 195–222 Kyrgyzstan, 46n4

Index

land restitution. See housing, land, and property (HLP) restitution Larke, Ben, 255 Laub, Dori, 132 Lebanese Forces (LF) party, 230–1, 232 Lebanon, 223–46; internal displacement in, 225–6, 233; negotiations with Israel, 309; 1982 Israeli invasion of, 231; official reconciliation process, 21–2, 24n9, 224, 226–41, 350; Palestinian refugees in, 322n10, 333; and Peacebuilding Fund, 46n4; religious groups, 223, 245n4 Lederach, J.P., 19 Liberia, 18, 37, 38, 40, 41, 46nn4–5, 58, 61 Liberian Truth and Reconciliation Commission, 18 Libya, 46n4 Living Histories Ensemble (LHE), 130, 131–44, 144n2 Locke, John, 326 Long, Katy, 50, 52, 53 Long, Lynellyn D., 52 Lon Nol, 109 Lord’s Resistance Army, 10 Luo people, 286, 288 McCallin, Barbara, 76 Madrid Peace Conference (1991), 299, 309 Makerere University, 23n1 Malkki, Liisa, 91 Mandela, Nelson, 244 Mano River Union, 35 Maori people, 323 Marianism, 108, 112–13, 120, 121n6, 122n11 Maronite Church, 245n4

423

Maroun, Nancy, 21–2, 223–46, 347, 350, 351 Marrus, Michael, 300 Maryknoll Society, 114 Massey, Doreen, 91 Matthews, Robert, 34, 43 Meertens, Donny, 55 Mekong River, 116, 118–19 memory, 133, 156, 198–9 Mendeloff, David, 248, 249, 256 Mexico, 61 Migrants’ Association for Social Cooperation and Culture (GöçDer), 205, 208, 209, 211, 222n26 Milner, James, 19–20, 29–46, 349 Ministry of Displaced (MOD; Lebanon), 224, 226, 245n1 Ministry of Human Rights and Return (BiH), 173, 183, 190 Minow, Martha, 190 Missions Étrangères de Paris (MEP), 110, 111, 112, 114, 116, 121n5 Molano, Alfredo, 89 Molloy, Michael, 20, 298–322, 348 Monitoring Commission (Colombia), 166n12 Montreal Life Stories project, 124, 126–7, 144n1 Moreno, Jacob Levy, 144n2 Morocco, 55 Morris, Eric, 32, 44 Morrow, Paige, 15, 276–97 Moscow Conference (1992), 299, 309 Mount Lebanon, 225, 226, 230, 245n7 Mozambique, 39 Multilateral Refugee Working Group (RWG), 299, 309 Mungiki criminal organization, 284, 288, 291–2 Muthaura, Francis, 283, 286, 290, 291

424

Index

Muzima, Philibert, 144n1 Myanmar, 37, 347 Myths We Live By (Byng-Hall), 128 Nagorno-Karabakh, 39, 77 Nahnsen, Antje, 81 Nairobi, 288, 290 Naivasha Town, Kenya, 284, 287, 290 Nakuru Town, Kenya, 284, 286–7, 290 Nalepa, Monika, 25n14 Nandi Hills Town, Kenya, 283, 284, 287 Al-Naqab, 332 Al-Naqba, 303, 305 Naša Stranka (BiH), 191 National Land Commission (Burundi), 41, 42 National Union and Brotherhood Project (Turkey), 218n1 National Unity and Reconciliation Commission (Rwanda), 123–4, 137 nation-building vs. state-building, 272–3n2 Ndejuru, Lisa, 10, 18, 35, 123–44, 352, 357 Negev, 332 Nepal, 46n4 New Zealand, 323 Niger, 46n4 Ninh, Thien-Huong T., 14, 16, 106–22 non-governmental organizations (NGOs): advocacy of long-term engagement, 353; analysis of displacement issues, 211, 212, 214, 220n18; documentation of displacement, 151, 158, 204–5, 206; efforts targeted at youth, 185; influence on policies for idps, 157; politicized, 222n27; promotion of displaced persons’ participation, 351; repre-

sentation capacity, 215–16; on return as a right, 207; and rightsbased approach to displaced persons, 197; truth-telling initiatives, 158, 164. See also civil society organizations (CSOs) Norodom I, King, 118 Norodom Sihanouk, Prince, 107 Northern Ireland, 80 Nozick, Robert, 326 Nuremberg Charter, 277 Nyanza Province, Kenya, 294 Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), 23–4n4 Odinga, Raila, 276, 288 Office of the High Representative (BiH), 172, 176, 181, 192n6 Office of the Prosecutor General (Timor-Leste), 253, 254 Ogata, Sadako, 170, 185 OHCHR (Office of the UN High Commissioner for Human Rights), 52, 166n14 Olmert, Ehud, 312, 313 Operation Rudi Nyumbani, 279, 295n10 Operation Tujenge Pamoja, 279 Operation Ujirani Mwema, 279 oral history, 124, 126, 127 Orange Democratic Movement (ODM), 276, 283, 286, 289, 291 Orentlicher, Diane F., 59 Organization for Security and Cooperation in Europe (OSCE), 172, 176, 179 Oslo Process and Accords, 299, 309 Ossetian displaced persons, 77 Our Lady of the Mekong River, 108, 116–18, 119–21 OAU

Index

Owsley, Brian, 111 Oxfeld, Ellen, 52 Paglione, Giulia, 75, 76–7 Pakistan, 41 Palestine Liberation Organization, 310 Palestine Papers, 312, 314 Palestinian Authority, 312, 340 Palestinians, 298–322, 323–44; intangible needs, 20, 304–7, 310, 312–13, 315–20; Madrid Conference negotiations, 309; Negotiation Support Unit, 312–14; numbers of refugees, 327; and the Oslo Process, 309–10; refugees, 303, 309–14, 315–17, 321n2, 325–6, 330–44; religious and cultural traditions, 334–5; and rights-based approach to displacement, 65; supersession thesis and, 23, 324–44; and the war of 1948, 303, 304, 309, 310, 338; and the war of 1967, 310, 332 PALIPEHUTU, 39 Panama, 61 Pantuliano, Sara, 73, 78 Papua New Guinea, 46n4 Party of National Unity (PNU), 276, 283, 284, 287, 289, 291, 292 Peace Agreement Drafters’ Handbook, 12 peacebuilding, 29–46; and durable solutions to displacement, 51; and housing, land, and property restitution, 69; importance of reconciliation to, 216; liberal, 273n3; negative vs. positive, 34–5, 45; through peace education programs, 37–8, 43–4; and truth-telling, 248, 263 Peacebuilding Commission (PBC), 29–30, 33–6, 46n4

425

Peacebuilding Fund, 33, 40–1, 46n4 Peacebuilding Support Office, 33 Peru, 55, 56, 57, 65, 67n3 Phan, Peter C., 107 Philippines, 22 Philpott, Charles, 172 Phnom Penh, 112, 116, 118 Pickering, Paula, 183 Pinheiro Principles. See UN Principles on Housing and Property Restitution for Refugees and Displaced Persons PKK (Partiya Karkerên Kurdistan), 202, 208, 211, 213, 218n1, 220– 1n19 playback theatre, 129–30, 131–2, 133, 137, 143 Policy Framework and Implementation Strategy on UNHCR’s Role in Support of the Return and Reconciliation of Displaced Persons, 13 Pol Pot, 119 Ponchaud, François (Father), 112, 113–14, 121n3 Pridjel Gornji, Bosnia and Herzegovina, 182 Prijedor, Bosnia and Herzegovina, 179, 186, 187 Progressive Socialist Party (PSP; Lebanon), 229, 231, 232, 245n1 Project for Protection and Land Restitution of Internally Displaced People (Colombia), 157–8 Property Law Implementation Plan (PLIP), 170, 172, 173 property restitution. See housing, land, and property (HLP) restitution psychodrama, 144n2 Quinn, Joanna, 35

426

Index

Ramousse, Yves-Georges-René (Monseigneur), 110 recognition, 156, 300–1, 315, 316, 320 reconciliation: and acknowledgment, 300; and coexistence, 183–5; contextualization of, 204; and cultural patterns, 97–100; definitions, 9, 35, 49–50, 69–70, 107, 123, 175, 254–5; in diaspora communities, 17–18, 123–44, 353; and economic activity, 176–7, 181–3, 187; effective vs. official, 245n2; failed attempts at, 21–2, 223–46; at local level, 14–15; and marginalization, 241; as a multilayered process, 104, 199, 208; outside the community of origin, 77; and power relations, 215; psychological changes through, 136, 144, 198; and rehumanization of the other, 178, 188, 200; and religion, 116–21, 180; and restorative justice, 83, 214; within rights-based approach to displaced persons, 197–200; social psychology approaches to, 134; and socio-economic well-being, 43, 177–8; thin vs. thick, 9–10, 35; and traditional customs, 55, 227, 243–4; and trust, 100–3, 209; and truthtelling, 199–200, 214; within un peacebuilding approach, 31, 40; and urban planning, 82. See also housing, land, and property (HLP) restitution Red Cross, 165nn8–9 Red de Solidaridad (Colombia), 94 Refugee Law Project, 23n1 refugees: average duration of exile, 30, 45; average rate of return, 338, 343n12; camp life, 333–4; and conflict, 44–5; core government ser-

vices for, 41–2; and cross-border issues, 36, 37, 43; defined, 23–4n4; participation in justice and reconciliation processes, 11, 351; past abuses of, 51, 68; and peacebuilding, 29–46; political engagement of, 38–9, 43; return and repatriation, 40, 50, 52–4, 64; scholarship on, 44–5; and secondary occupants, 23, 74, 336; “spoilers” among, 37; training programs for, 39–40, 42–3; and Waldron’s supersession thesis, 324–44 reintegration: defined, 169; difficulties in way of, 40, 170, 268; as a durable solution to displacement, 7, 90; in ethnically divided societies, 173–85, 188–9; and land restitution, 41; of low-level perpetrators of violence, 251, 255, 257, 267; and transitional justice, 47–67 reparations: components of, 301; defined, 295n9; moral, 300, 313, 314 repatriation. See return Report of the Secretary-General on Peacebuilding in the Immediate Aftermath of Conflict (2009), 30, 36 Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-conflict Societies (2004), 12 Republika Srpksa (RS), 169, 173, 177, 184 restitution, defined, 295n9, 301 return: average rate of, 338, 343n12; in Bosnia and Herzegovina, 171–3, 180; causing disruption, 258, 336; choice of, 64, 91, 261; and community reconciliation processes, 247; conditions for “just,” 55; in the Day-

Index

ton Agreement, 169; and housing, land, and property restitution, 64–5, 68, 170, 172, 173–4; of Kurdish IDPs, 207–8; requirements, 175; “reverse,” 174; vs. repatriation, 50. See also right of return Return Fund (BiH), 190 Return to Village and Rehabilitation Project (Turkey), 204 Rift Valley, 15, 276, 283, 287–8, 291, 294 right of return: collective vs. individual, 172; “local settlement” and, 78; omitted from 1951 Refugee Convention, 342n2; and the passage of time, 324; recognition vs. exercise of, 331, 354; and reconciliation, 202; specific vs. general meaning of, 342n3; and state security, 208 Risaralda, Colombia, 93 Rohingya refugees, 41 Rose, Susan D., 138 Rotberg, Robert I., 303 Rouhana, Nadim, 198, 199 Russia, 78 Ruto, William Samoei, 283, 287, 290, 291, 292 Rwanda, 123–44; forced migration from, 3, 297n24; history of violence in, 125, 127–8, 135; Hutu/Tutsi binary, 123–4, 126, 139–40; reconciliation processes, 17–18; refugees from, 38, 39; UN Security Council resolution on, 46n5 Salas, Jo, 130 Sánchez Leon, Nelson Camilo, 73 Sang, Joshua Arap, 283, 287, 290, 291 Santos, Juan Manuel, 158–9 Sarajevo, 52, 179

427

Sarkin, Jeremy, 69–70 satisfaction, defined, 301–2 Schütz, Alfred, 97, 98, 100 Scotson, John L., 97–8, 98–9, 101 security sector reform (SSR), 58, 59, 65 Serbian Orthodox Church, 193n18 Serbs, 172, 182, 193n18 Sevarlije, Bosnia and Herzegovina, 182 Shining Path, 56 Sida (Swedish International Development Cooperation Agency), 177 Sierra Leone, 33, 35, 37, 38, 46nn4–5 Simmel, Georg, 96 Sioux people, 323 Slim, Hugo, 82 Smit, Anneke, 68–84, 349, 355 Social Democratic Party (BiH), 191 Social Solidary Network (Colombia), 94 Somalia, 46nn4–5 Souter, James, 24n6 South Africa, 55, 81, 244, 354 South Ossetia, 78 South Sudan, 40, 46n4 South Vietnam, 109 Soviet Union, 339 Srebrenica massacre, 3, 345 Srebrenica Milk Road Project, 182 Sri Lanka, 38, 46n4 state-building vs. nation-building, 272–3n2 Stedman, Stephen J., 32, 44 Stefansson, Anders H., 52, 75, 177 stranger, concept of the, 96–7, 98, 100–1 Sudan, 37, 46nn4–5, 295n6, 297n24 Suharto, 249 supersession thesis, 323–44 Support to Results-Based Approach –

428

Index

Partnership for Local Development project, 182 Supreme Court of Justice (Colombia), 167n17 Sutika Sipus, Mitchell, 82 Syria, 4, 245n3, 298, 307, 309, 333 Taëf Agreement (1990), 223 Taiwan, 121n6, 122n8, 122n11 Tanzania, 39, 40 Tavuchis, Nicholas, 208 Tekeli, I., 221n24 Tennant, Vicky, 51, 56 Thai (Father), 113, 114, 121n3 121n7 Thailand, 114, 118, 121–2n7 Theatre of the Oppressed, 144n2 Thompson, Paul, 128 Timor-Leste, 247–75; avoidance of term “reparations” in, 63; coexistence program in, 38; community reconciliation processes (CRP) in, 27, 247, 251, 253–5, 261, 266, 267, 269–70; independence, 274n15; Indonesian occupation of, 249–50; National Recovery Strategy, 249; numbers of displaced persons in, 259–60; Open Governance initiative, 269; and Peacebuilding Fund, 46n4; referendum for independence, 250, 253; return of displaced persons in, 58, 253, 260, 268; socioeconomic factors in, 348; truth commission, 14, 24n9, 55, 56, 247, 248, 251, 252–9; 2006 crisis, 256, 258, 259–62, 268, 271, 273n7, 348; 2006 dialogue initiatives, 248, 262–6; UN Security Council resolution on, 46n5 TOHAV (Foundation for Society and Legal Studies), 205

Tokyo Charter, 277 transitional justice: challenges, 6; criminal prosecutions, 25n14, 280–1, 285–93, 294; defined, 8; and diaspora communities, 18; and displacement, 11–12, 20, 22, 47; intangible benefits, 348; and reconciliation, 9, 22; and reintegration, 47–67; role of truth in, 133–4; scholarship on, 4, 13–14; and the status quo ante, 354–5; in unresolved conflicts, 20–1 Triangle (Israel), 332 Truth, Justice and Reconciliation Commission (TJRC; Kenya), 281, 296–7n16 truth commissions: aims, 161; challenges faced by, 257–8; and community reconciliation processes, 14–15, 55, 247, 253–5; and competition among victim groups, 62–3; construction of “truth,” 266; and diaspora communities, 18, 61; focusing on displacement, 24n9, 247; limitations, 255, 272; and organized returnees, 61; and peacebuilding, 248, 257, 263; as a process of recognition, 301; and (re)integration, 56, 57–8, 65; relationship with the state, 165n3; and restorative justice, 83; and traditional rituals, 253, 261 Tuganire project, 126 Turbo Town, Kenya, 283–4, 287 Turkey, 195–222; Compensation Law, 62, 206–7, 208, 209, 210, 213–14, 219n11, 220n18; importance of rights-based approach in, 21; Law on Resettlement, 214, 221n24; marginalization of urbanized IDPs, 16, 212–13; numbers of IDPs in, 204–6;

Index

returns in, 207–8, 219–20n15; village guards, 210–12, 220–1n19 Turkish Economic and Social Studies Foundation, 219n10 Türkiye Göç ve Yerinden Olmuş Nüfus Araştırması (TGYONA), 205 Uganda, 10, 23n1, 37, 46n4, 134, 294, 297n24 UN (United Nations): Declaration on the Rights of Indigenous Peoples (2008), 342n2; General Assembly Resolution 194, 298, 304, 308, 311, 321n2, 330; monitoring of displaced persons in Colombia, 165n8; Partition Plan for Palestine (1947), 304, 309, 324; peacebuilding approach, 19, 29–30, 31, 33, 43–4, 257; police reform in Bosnia, 60; special rapporteur on human rights of IDPs, 280; in Timor-Leste, 250–1 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 8–9 UN Convention relating to the Status of Refugees (1951), 23–4n4, 342n2 UNDP (United Nations Development Programme): Ankara branch, 206; on balancing aid across groups, 56; community-based approach, 182–3; relationship with UNHCR, 192; on returnees’ difficulties, 52, 57–8; role in peacebuilding, 257; role in reintegration, 50–1; on social exclusion, 175–6 UNHCR (Office of the UN High Com-

429

missioner for Refugees): in Bosnia and Herzegovina, 170, 172, 173, 174, 180, 184; in Burundi, 21, 41–2; coexistence programs, 37–8, 43–4, 185–90; in Colombia, 157, 165n8, 165n10; figures on returnees, 338, 343n12; peace education programs, 37; on protracted refugee situations, 342n1; recommendations for repatriation programs, 336; on reintegration of displaced persons, 47, 48, 56, 169; relationships with other organizations, 192; on right of return, 342n3; on the rights-based approach to displaced persons, 197; skills training programs, 40, 42–3; in Timor-Leste, 253 Unidad para la Atención y Reparación Integral de las Victimas, 165n8 United Colombian Self-Defense Army, 149, 155 United Kingdom, 324, 328 United Methodist Committee on Relief, 182 United States: apology for internment of Japanese Americans, 302, 313, 315; and Cambodian Catholic church, 114, 118; and Colombian drug trade, 149, 155; compensation to the Sioux, 323; Druze community in, 245n3; failure to protect Vietnamese Cambodians, 111; lifting of embargo against Vietnam, 122n11 United States Agency for International Development (USAID), 184 United States Committee for Refugees, 204 United States Institute of Peace, 12 Universal Declaration of Human Rights, 298, 308

430

Index

Principles on Housing and Property Restitution for Refugees and Displaced Persons: among other frameworks, 13, 70; criticisms of, 67n4, 74–5, 82; focus on redress, 19, 71–2, 83–4; in peacebuilding, 42 UN Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA), 330, 331, 334, 342n1 Unruh, Jon D., 75–6 UN Security Council, 36, 37, 42, 46n5, 250, 294 UNTAC (United Nations Transitional Authority of Cambodia), 109, 111 UNTAET (United Nations Transitional Authority for East Timor), 250–1, 273n10 Urabá, Colombia, 92–3, 97 urbanization, 64–5, 67n3, 69, 260 urban planning, 79–82 Uribe, Álvaro, 105n6 Urumuli Association, 142 UN

Van, 215, 222n25 Van Action Plan, 215 Venezuela, 61, 98, 152 Victim and Land Restitution Act (Colombia; 2011), 12 Vidal López, Roberto, 20–1, 147–67, 347 Vieira, Luiz, 14, 247–75 Vietnam, 109, 116, 118, 121n4, 121n6, 122n8 Vietnamese Americans, 107, 122n11 Vietnamese Cambodians, 14, 16, 106–22 Vietnamese language, 115 La Violencia (1948–; Colombia), 89 Waad Party (Lebanon), 245n1

Waintraub, Nicole, 20, 298–322, 348 Waitangi, Treaty of, 323 Waki Commission. See Commission of Inquiry into Post-election Violence (CIPEV; Kenya) Waldorf, Lars, 273n3 Waldron, Jeremy: on attachment to place, 331; on historical aspects, 340; on ongoing injustice, 343n9; on religious property, 334; on settler colonist nations, 335; supersession thesis, 23, 324–9, 337, 343n10 War of a Thousand Days (1899–1903), 89 West Bank, 298, 303, 307, 310, 321n9, 332, 333 Western Sahara, 46n5 West Timor, 56, 253 Williams, Rhodri, 66, 83 Winstanley, Jennifer, 15, 276–97 women and girls: disproportionate displacement of, 153; double marginalization of, 51, 99, 203; effects of restitution on, 57; in host communities, 95–6; trafficking of, 181; and transitional justice mechanisms, 55 World Bank, 50–1, 53, 56, 64, 192 Yeğen, M., 211 Yemen, 46n4 youths, 33–4, 38, 184–5, 187, 279, 295n7 Yugoslavia, former, 3, 25n14, 58, 65 Zeender, Greta, 76 Zionism, 303, 323–4, 330, 340–1 Zur, Judith, 132