Housing, Land and Property Rights in Transitional Justice

Housing, land and property (HLP) raise some of the most provocative and contentious issues in transitional justice scholarship and practice. HLP-related forced displacement, damage and destruction and restitution for historical injustices are at the heart of many transitional justice policy debates, with repercussions for responses by the international community, governments and civil society. Transitional justice scholarship has made great strides in trying to answer fundamental questions concerning injustices related to HLP and economic, social and cultural rights – and the questions are many. Does transitional justice provide a sufficient foundation for understanding how best to respond to HLP grievances? Are the human rights-based legal frameworks used in transitional justice prejudiced in how they shape our understanding of HLP problems, and do they provide appropriate redress across a variety of cultural and historical trajectories? What is the place of traditional, indigenous and customary laws and norms in transitional justice efforts relating to HLP? Transitional justice has always given prominence to the symbolic value of measures of justice and redress. Does this lens attend to the various forms of injustice in the context of HLP grievances and the material and spatial needs of the aggrieved? Can it help make sense of both the individual and the group identities embedded in HLP questions? Since HLP issues are highly politicized and ritualized in political discourse, how can local actors reclaim HLP problem definitions and proposed solutions from political entrepreneurs? Does transitional justice provide effective avenues for marginalized groups to engage in current debates, voice their experiences and participate in processes of restitution? This Special Issue of IJTJ seeks to deepen the debate on these issues and contribute to answering some of the questions facing scholars and practitioners working on HLP in transitional contexts. As with transitional justice scholarship, the practice of transitional justice in relation to HLP has progressed impressively in recent years, in large part due to the ‘goodness of fit’ between the two fields. This has come with the belated realization that HLP rights do not immediately return to their pre-conflict status and operational modes,1 laying the foundation for economic and societal recovery. In fact, HLP rights are a primary reason for the onset of conflict in many contexts, so that a return to the pre-conflict situation would renew the conditions for conflict. While the term transitional justice implies that postconflict societies undergo an intermediary phase between when change is initiated (end of a war, change in governance forms) and a period of stability (postwar recovery, a new form of governance), the treatment of HLP rights in transitional contexts has often lagged behind. Until somewhat recently, postconflict recovery and reconstruction scenarios assumed that HLP rights either re-establish themselves or are mere artifacts of a statutory system that can easily be (re)built through development efforts, including the provision and enforcement of registries, titles, deeds, demarcations, maps and cadasters. It is now accepted that HLP rights pass through a significant transitional phase after conflict, along with the rest of society. Forced dislocation, expropriation, cleansing of various forms, return processes, secondary occupation problems and land grabbing all take significant time to reconcile. The realization that HLP rights are an important aspect of transition and transitional justice is the result of a series of mistakes, which led to a better understanding of the role of HLP rights in society and how conflict affects local and cultural diversities involving HLP rights. One significant change has been a paradigm shift in development thinking regarding the relationship between statutory and customary land rights. An earlier paradigm held that customary HLP rights systems could simply be replaced by statutory systems through the passage of laws and the dissemination of titles, deeds and registries to those adhering to customary tenure. After several spectacularly unsuccessful large-scale attempts, most notably in Kenya,2 a new paradigm emerged that, instead of one form of tenure replacing another, the two co-evolve and adapt to each other over time. The time needed for such a co-evolution to take place is now thought to be highly variable and location specific. One lesson for the relationship between HLP rights and transitional justice is that HLP rights are not easily changeable, managed, reconstructed components of society, like roads, water wells or buildings. Instead, postconflict HLP rights are complicated, contested and often heavily burdened with historical baggage. Another lesson is that transitional contexts do not constitute ‘blank slates’ upon which to quickly construct or impose a new or revised HLP rights arrangement, with the expectation of ‘building back better.’ This logic of erasure and hence opportunity ignores the reality that HLP rights are deeply rooted in society. This is particularly the case as conflict and HLP rights are enmeshed spatial exercises that produce a tangle of land-related grievances, dislocation, expropriation, damage, destruction, opportunity, divisiveness and fraud, in addition to serving as a vehicle for acting on seemingly unrelated grievances. Land rights and land access can be used as weapons, ranging from area denial and the use of land mines, to ethnic and other forms of cleansing, locating opponent constituencies using land records and targeted destruction of records. They can also be used as high-value commodities to finance conflict, for example by taxing property owners or confiscating and then selling or renting properties to fund armed groups, paying fighters and constituents with land and properties or even awarding reconstruction contracts in exchange for funding. And once the shooting stops, the conflict can easily default to disputes over land. If these are acute and widespread enough, they can become a flashpoint for a return to armed conflict. The relationship between HLP rights and transitional justice is still evolving. Postconflict HLP rights have increasingly been handled through the technical and bureaucratic process of a mass claims restitution program. There is increasing recognition that a technical process alone cannot adequately deal with the effects of mass forced dislocation, which range from forms of apartheid, to ethnic cleansing and war-related dislocation, to a change in economic systems. Attempts at large-scale restitution can be particularly problematic in customary and other informal HLP circumstances, where no documents are held, opportunists abound, secondary occupation is common and long periods have passed. The challenge is compounded in contexts where demographic change in support of political agendas has occurred, historical claims emerge, identity-based attachments to land exist and grievances at not being able to return to one’s lands are acutely felt. Nelson Camilo Sánchez León, in his book review essay for this Special Issue, writes compellingly about the theoretical, political and practical issues with restitutive approaches to HLP within the framework of transitional justice. The history of forced dislocation being what it is in many parts of the world – and with the number of refugees and internally displaced persons in today’s conflicts numbering in the millions – claims from different time periods can be layered onto each other and onto the contemporary claims of the currently displaced. While they are essentially technocratic endeavors, the point of mass claims restitution programs is to provide justice, address grievances and lay claims to rest in order to prevent future instability. These are all lofty, ambiguous and non-technocratic objectives. As the International Bureau of the Permanent Court of Arbitration notes, ‘The objectives of resolving mass claims are to provide real justice to the victims of the events which gave rise to the claims, and to allay the disruptive discontent within a nation or society that unresolved wrongs perpetuate.’3 While well intentioned, attempts to achieve ambiguous objectives through a technocratic process result in problematic disconnections. Notions of justice can vary widely, and grievances often are not resolved through a legal and bureaucratic spatial ‘fix,’ particularly where retaliation for perceived wrongs is strongly felt. Unresolved claims can multiply over generations. Thus, significant work remains to be done in the application of mass claims processes as a transitional tool for HLP rights, with the field of transitional justice seeming to have a great deal to offer. However, a number of challenges require attention for transitional justice to contribute substantially to HLP rights transitions. Foremost among these is the range of elements of varying character that must come together. At one end of this range lie elements that are difficult to measure and manage: perceptions, impressions, feelings and beliefs regarding not just justice but also land tenure security, which is so fundamental to all HLP rights systems. These must interact with elements in the domains of politics, policies, laws and enforcement. Further along the range are the more technical and material physical realities of boundaries and physical resources, such as water, minerals, soil, vegetation and buildings. Still further along are the technical realities of titles, deeds, registries and cadasters, together with the computing, bureaucratic and financial systems needed to manage them. It is the interaction of all these elements in highly variable country situations that constitutes the domain of transitional justice in HLP rights. While much has been accomplished, clearly there is much still to learn. This Special Issue seeks to contribute to addressing this need. The innovations and experiences selected for this issue provide important food for thought in the context of these needed innovations. The innovations contained in this Special Issue involve both the technical (in application and analysis) and the conceptual. Ginevra Le Moli assesses the use of investment arbitration tribunals in deciding sensitive disputes arising from various black economic empowerment policies in countries that have experienced highly racially discriminatory regimes, using Zimbabwe and South Africa as examples. In testing this interaction, Le Moli identifies significant disruptions of local transitional justice processes. Also concerned about economic aspects of HLP and transitional justice, Rocio del Pilar Pena-Huerta, Maria Monica Parada-Hernandez, Natalia Abril-Bonilla, Luisa Fda Uriba-Larrota, Maria Camila Jimenez-Nichols and Ana Valentina Nieto-Cruz note the fragility of attempts at protecting local ethnic communities from market dynamics among Afro-Colombian communities. They highlight the potential of transitional justice to do this better, in ways that technically strengthen property rights and act as a shield against negative market dynamics. Luis Enrique Ruiz Gonzalez, Rocio del Pilar Pena-Huertas, Maria Monica Parada-Hernandez-Hernandez, Alfonso Javier Lozano Valcarcel, Bryan Triana Ancinez and Milton Alberto Valencia-Herrera similarly take a technical look at transitional justice processes, examining the possibility that ‘flexibilization’ of evidence rules in Colombia might deliver improved outcomes in restitution. Working with the techniques of reversing the burden of proof, introducing different legal presumptions and adopting alternative forms of evidence, their experiment of observing different sets of evidence rules in two transitional justice systems in Colombia indicates that flexibilization provides a significant advance in the treatment of evidence in transitional justice exercises involving land and property. Looking at Latvia, Jamie Rowen and Arta Snipe analyze the creation and implementation of the country’s land restitution policy after independence from the Soviet Union. The authors use process tracing to assess the utility of ‘in-kind’ restitution where property has significantly changed following the construction of new buildings, financial disputes and political divisions during the transition from a communist to a capitalist market system. Theodore Mbazumutima examines an alternative dialogue-based approach to attending to the highly problematic land and property restitution process in Burundi, which has been politically hijacked and become legally moribund, leading to violence and potential threats to national unity. Mbazumutima finds utility in such dialogues for resolving complex land conflicts where law fails to provide adequate solutions. Lejandrina Pastor and Angela Santamaria, meanwhile, explain how participatory action research can be used to incorporate female Indigenous techniques and conduct ethnographic observations. They explore Wiwa female spiritual advocacy in the Colombian Caribbean region during the postconflict period. Because methodologies and practices of Indigenous communities have been underappreciated in the transitional justice literature on land and property rights, the authors seek to document and analyze the spiritual and territorial advocacy used by local Indigenous women for the defense of their lands and collective rights. Turning to the more conceptual innovations in this Special Issue, Niall Gilmartin examines the long-term impact of forced dislocation through an analysis of narratives of the displaced in Northern Ireland, revealing the multi-layered short- and long-term consequences of displacement at the levels of the individual, the family, the community and society. Gilmartin finds that experiences of displacement should be considered as forms of trauma and harm in recognizing those affected as victims, arguing that bottom-up acknowledgment projects such as ‘storytelling’ are useful vehicles to advance recognition and end denial. Bernardo Almeida looks at the concept of ‘wicked problems’ in East Timor as a way to overcome the limitations of a legalist perspective in pursuing complex transitional justice issues regarding land grievances. Almeida notes that use of the wicked problems concept is more suitable to the largely political problem of land grievances in a transitional justice process. Alexandra Huneeus and Pablo Rueda examine a different concept: viewing the territories of Indigenous and Black communities as victims in the Colombian conflict. This concept of a territory as a victim, as opposed to a stage on which a conflict unfolds, seeks to give legal expression to the notion that it is not only human lives that are harmed by armed conflict. Looking at one of transitional justice’s fundamental concepts, Irene Pietropaoli analyzes the ‘guarantee of non-recurrence’ and its ability to protect HLP rights in Myanmar given the failure of the government adequately to address longstanding HLP violations in that country’s transition to a partial democracy. She argues that the best approach to reforming laws and institutions to better address HLP restitution issues is through such a ‘non-recurrence’ focus that provides this exact purpose to laws and institutions. Focusing on social identity theory (SIT), Mijke de Waardt, Dora Georgiou and Evren Celal discuss redress through the lens of social identity. Based on field research in Cyprus, they argue that SIT enables scrutiny of whether and how legal decisions and administrative remedy mechanisms meaningfully relate to internally displaced persons’ notions of victimhood and (in)justice. Fabricio Teló, Leonilde Medeiros, Regina Fernandes and Alessandra Gasparotto, meanwhile, explore how Brazilian transitional justice has handled the violence committed against peasants and Indigenous peoples during the dictatorship of 1964–1985 – a political regime that facilitated land dispossession. Making a persuasive case for rethinking notions of transitional justice from the perspective of the countryside, they show that land dispossession has not been considered a serious human rights violation in Brazil. Finally, in his book review essay, Nelson Camilo Sánchez León contends that the consolidation of the land restitution concept as a legal obligation has been an effective tool for countering those who oppose dealing with the land question in the transitional justice framework. Arguing that there is a gap in postconflict studies regarding how to design and implement policies in a manner that holistically responds to the social, political, economic and biological dependencies humans have with land and territory, Sánchez León concludes that this appears to be the challenge presented by the fourth stage of specialized literature on the subject, in which the promised land of transitional justice can become a reality. This Special Issue presents articles that look at how housing, land and property injustices and the responses to them shape transitional justice claims, interventions and conceptual debates. The Special Issue contains a broad range of contributions, which include discussions of: debates about historical land claims and reparative measures for colonial-era dispossession; the structure and function of war-affected HLP restitution efforts; the repercussions of challenges particular to urban HLP transitional justice; HLP reparatory strategies vis-à-vis Indigenous land claims and respect for the earth; the peace versus justice trade-off; and the broader design questions of how legal frameworks have been used to influence HLP-related transitional justice debates, policy and practice. The articles here serve to highlight the symbolic significance of issues emerging at the nexus of HLP and transitional justice, together with the fundamental role of reparative measures in rebuilding livelihoods and social orders that contribute to greater human dignity and equality.

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