Brookings: Experts - Megan Bradley

Internal Displacement and Development Agendas: A Roundtable Discussion with Sadako Ogata

Tue, 14 May 2013 09:00:00 -0400

Event Information

May 14, 2013
9:00 AM - 10:30 AM EDT

St. Louis Room
The Brookings Institution
1775 Massachusetts Ave., NW
Washington, DC

Around the world today, there are more than 15.5 million refugees and over 28.8 million internally displaced persons (IDPs) uprooted by conflict, in addition to some 32.4 million displaced in 2012 from their homes due to natural disasters. These displacement crises are not simply humanitarian concerns, but fundamental development challenges. Forced migration flows are rooted in development failures, and can undermine the pursuit of development goals at local, national and regional levels.

Linking humanitarian responses to displacement with longer-term development support and planning is not a new concern. Beginning in 1999, for example, the “Brookings Process” – under the leadership of Sadako Ogata and James Wolfensohn – sought to bridge humanitarian relief and development assistance in post-conflict situations. But the challenge remains unresolved, and has acquired new urgency as displacement situations are becoming more protracted, and situations such as the Syrian crisis show no signs of resolution.

The Brookings Global Economy and Development Program and the Brookings-LSE Project on Internal Displacement held a roundtable on these issues on May 14, 2013 with Sadako Ogata, former UN High Commissioner for Refugees, former Director of the Japanese International Cooperation Agency, and Distinguished Fellow at the Brookings Institution. Megan Bradley, Fellow with the Brookings-LSE Project on Internal Displacement, facilitated the roundtable, which followed Chatham House rules.

The roundtable addressed several key topics including:

The relevance of the concept of human security to addressing displacement and development challenges
Displacement as a development challenge in fragile states
Protracted displacement
Contrasts in the approaches and processes adopted by humanitarian and development actors

The event report provides a brief overview of the discussion.

Event Materials

Brookings IDP Roundtable with Sadako Ogata May 14 2013

Participants

Panelists

Syria's Humanitarian Crisis Has No End in Sight

Elizabeth Ferris, Megan Bradley and Shelly Pitterman — Thu, 25 Apr 2013 00:00:00 -0400

Political leaders seem to be unable to bring the violence and carnage in Syria to an end. As a result, the quality of life for those who struggle to survive in the midst of this war continues to deteriorate. With more than five million displaced persons and seventy thousand casualties, the situation is devastating. Co-Director of the Brookings-LSE Project on Internal Displacement, Elizabeth Ferris examines the growing crisis with Shelly Pitterman, the Regional Representative for the United Nations High Commissioner for Refugees and Fellow Megan Bradley.

Video

Syria's Humanitarian Crisis Has No End in Sight

Authors

Camps are Not the Answer to Syria’s Displacement Crisis

Megan Bradley — Fri, 19 Apr 2013 13:48:00 -0400

A few years ago, I visited some of the Palestinian refugee camps scattered across Lebanon. After spending some time in Bourj al-Barajneh camp in Beirut, I travelled to Wavel -- a highly impoverished but comparatively spacious camp in the rural Beqaa valley, where a Palestinian refugee boy asked me a question: Can you see the sky in Bourj al-Barajneh? I was surprised by this question, but upon reflection realized it is perfectly reasonable. Bourj al-Barajneh is notoriously overcrowded. After more than 60 years of displacement, tents have been replaced by packed apartment blocks and narrow concrete alleyways. Without permission to expand the boundaries of the camp, residents have had to build in and up, so that there are indeed many places in Bourj where you can stand outside and yet barely see the sky.

Despite these cramped conditions, residents of Bourj al-Barajneh and other camps have opened their doors to the 36,000 Palestinian refugees who were living in Syria, but have now fled to Lebanon. Thousands of Lebanese families, many with little room to spare themselves, are sheltering scores of the 400,000 Syrian refugees registered in Lebanon. In Jordan as well, "host families" are making a critical contribution by accommodating many of the 1.3 million refugees who have fled Syria since the uprising started in March 2011. Within Syria, the UN reports that approximately four million people are now displaced. Untold thousands have found shelter - however precarious - with extended family members, or even strangers.

Read the entire article here >>

Authors

Megan Bradley

Publication: The Atlantic

Image Source: © Muhammad Hamed / Reuters

The Kampala Convention on Internal Displacement in Africa: A Human Rights Milestone

Tue, 26 Mar 2013 14:00:00 -0400

Event Information

March 26, 2013
2:00 PM - 3:30 PM EDT

Saul/Zilkha Rooms
Brookings Institution
1775 Massachusetts Avenue NW
Washington, DC 20036

On December 6, 2012, the world’s first regional treaty on internal displacement came into effect. The African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, known as the Kampala Convention, breaks new ground in articulating the rights of internally displaced persons (IDPs), and the responsibilities of states, regional organizations, and other actors to uphold them. With almost ten million people internally displaced across twenty-one sub-Saharan African states, the continent is home to one third of the world’s IDPs. Hopes are high that the Kampala Convention will make a concrete contribution to improving the wellbeing of IDPs across Africa, but this depends on the effective implementation of the Convention. How will African states, civil society organizations, and their international supporters respond to this challenge?

On March 26, the Brookings-LSE Project on Internal Displacement hosted a discussion on this landmark achievement, its implications for IDP protection in Africa, and strategies to support the effective implementation of the agreement. Panelists included Chaloka Beyani, UN special rapporteur on the human rights of IDPs and co-director of the Brookings-LSE Project on Internal Displacement; Niels Harild, lead social development specialist (displacement) with the World Bank; and Andrea Lari, director of programs at Refugees International. Megan Bradley, fellow with the Brookings-LSE Project on Internal Displacement, moderated and provided introductory remarks.

Protecting Mogadishu’s Internally Displaced Persons: Past Failures, Future Challenges

Wed, 20 Mar 2013 10:00:00 -0400

Event Information

March 20, 2013
10:00 AM - 12:00 PM EDT

Zilkha Room
Brookings Institution
1775 Massachusetts Avenue NW
Washington, DC 20036

In 2011-2012 Somalia was affected by a devastating famine—caused by ongoing insecurity, an unrelenting drought, and restricted humanitarian assistance—which exacerbated the country’s ongoing displacement crisis. Hundreds of thousands of Somalia’s estimated 1.5 million internally displaced people (IDPs) have sought shelter in Mogadishu, but instead of finding safe refuge there, many of the displaced have encountered a hostile and abusive environment.

The Brookings-LSE Project on Internal Displacement and Human Rights Watch held a panel discussion about abuses of IDPs in Mogadishu, looking in particular at the interlinked security, justice, governance, and development challenges for the new government of Somalia. The session featured the presentation of a new report by Human Rights Watch on internal displacement in Mogadishu.

Meeting under Chatham House rules, over thirty participants from the U.S. government, United Nations agencies, and non-governmental humanitarian and development organizations contributed to the discussion. This followed presentations by the Institute for National Strategic Studies, Human Rights Watch, and USAID on the evolving political and security situation in Somalia, abuses of IDPs, and the humanitarian response.

There is optimism for Somalia’s future as the new government of President Hassan Sheikh Mohamud has had diplomatic successes and international support for his “six pillar policy.” But major concerns and challenges remain for the federal government as it does not have complete control within Mogadishu, let alone outside the capital. A heavy reliance on AMISOM and regional military continues. Clan conflicts and the development of a solid federal system remain major unresolved challenges as some authorities outside Mogadishu are at odds with the central government. Meanwhile, al-Shabaab is a shifting threat, as the organization plays a waiting game to see if political opposition to the new government will emerge in Mogadishu.

All this sets a precarious stage for the situation of the internally displaced in the capital. The government announced in January that it is planning to relocate Mogadishu’s tens of thousands of internally displaced people to the outskirts of the city, a proposition that raises significant human rights concerns, in addition to complex logistical and development challenges. Human Rights Watch’s new report details the existing serious abuses against IDPs, including physical attacks, restrictions on movement and access to food and shelter, and clan-based discrimination against the displaced in Mogadishu from the height of the famine in mid-2011 through 2012.

The Human Rights Watch report draws particular attention to the ways in which government forces, affiliated militia, and private parties, notably camp managers known as “gatekeepers” or “black cats,” prey upon vulnerable IDP communities. Rape and sexual abuse of displaced women and girls, including by government soldiers and militia members, has been an enormous problem in the unprotected environment of the camps. Gatekeepers and militias controlling the camps have also diverted and stolen food aid intended for famine-stricken camp residents, and in some cases have prevented IDPs from leaving the camps in order to attract greater humanitarian assistance for their own benefit. These abuses highlight the importance of systematically integrating protection and access to basic services into any relocation plans, and ensuring that the timeframe for the implementation of these plans is realistic.

The discussion highlighted the particular vulnerabilities facing IDPs from the Rahanweyn and Bantu communities, as well as those from minority groups within the predominant clans. Particularly in regions that were the most affected by the famine, lack of clan protection exacerbates IDPs’ physical insecurity, and their lack of access to key services. Clan membership, both of IDPs and of gatekeepers, must therefore be carefully taken into account in discussions of IDP protection. Participants also explored challenges surrounding security sector reform in Somalia, stressing the need for more in-depth donor engagement on this issue, and for international actors to exercise greater caution in determining which individuals and groups they support.

Event Materials

HRWsomaliaMarch2013

Participants

Panelists

Laetitia Bader

Researcher

Lawrence Meserve

Acting Deputy Asst. Administrator, Bureau for Democracy, Conflict and Humanitarian Assistance

Andre Le Sage

Senior Research Fellow for Africa, Institute for National Strategic Studies

Syria's Unseen Crisis: Displaced Women Face Rape, Insecurity, Poverty

Megan Bradley — Fri, 08 Mar 2013 00:00:00 -0500

In a bleak irony, today – International Women’s Day – is also a public holiday in Syria, commemorating the 1963 coup that brought the Baathist party to power and saw Hafez al-Assad take over as commander of the Syrian air force. Assad eventually became president of Syria and, for all his sins, was a proponent of equal rights for women. Under the rule of his son, Bashar al-Assad, however, Syria has become a living hell for its women, particularly for the millions who have had to flee their homes since the country’s crisis began two years ago.

In the past week, the Syrian refugee crisis has grabbed headlines around the world as the number of Syrians who have had to seek asylum abroad reached one million. But there is another, less-discussed displacement crisis unfolding inside Syria. Syria’s internally displaced population passed the two million-mark months ago – by some estimates, there are more than three million Syrians uprooted within their country, most out of reach of international aid and media attention. The consequences of this crisis have been catastrophic for all displaced persons, but particularly for women and girls. International Women’s Day is a chance to give these consequences the attention they deserve, but have lacked so far.

Amongst the litany of abuses that characterize the Syrian conflict, rape has emerged as a defining element of the displacement crisis.

Amongst the litany of abuses that characterize the Syrian conflict, rape has emerged as a defining element of the displacement crisis. The International Rescue Committee, a leading aid agency, reports that among Syrian refugees in Jordan and Lebanon, rape was a primary motive for their flight. Inside Syria, increasing incidents of sexual violence suggest that rape is being used as a weapon of war. As the Assistant UN High Commissioner for Refugees reported recently to the Human Rights Council in Geneva, the displacement crisis is “accompanied by gender-based crimes, deliberate victimization of women and children and a frightening array of assaults on human dignity.” Attacks are often carried out in public, compounding the humiliation and stigma endured by those who survive.

In part as a result of such violence, many families have been displaced multiple times. Few have been able to find secure shelter or adequate assistance. For example, since January, the UN refugee agency, UNHCR, has been able to make only two deliveries of assistance to the internally displaced across conflict lines. While these convoys are a logistical and diplomatic feat, the distribution of 15,000 blankets and 1,000 tents by the February 13^th mission is radically disproportionate to the millions in need. According to recent reports, UNHCR’s cash assistance programs have so far reached an estimated 25,000 internally displaced Syrians, a tiny proportion of the internally displaced population.

Inadequate assistance and growing impoverishment have led to a vicious cycle in which women and girls who have fled sexual and gender-based violence are exposed to exploitation as they struggle to find food and fuel to survive. Domestic violence rates increase in such circumstances, and many desperate families marry off their daughters at younger ages than usual in order to secure some meager protection for them, and reduce the number of mouths to feed in a household.

In the absence of a still-elusive resolution to the conflict, what can be done to support women and girls displaced inside Syria?

First, as the UN’s former humanitarian aid czar John Holmes has said, “Donors need to step up, recognize the severity of the humanitarian crisis in and around Syria and face the virtual inevitability that this is going to get much worse and last much longer than initially anticipated.” Increased support is needed not only for Syria’s refugees, but also for the internally displaced. Renewed efforts are required to explore how more aid can be delivered to the displaced in areas outside the control of the Syrian government, including by transporting supplies across the borders of neighbouring countries, building on the current work of local NGOs and international groups such as Doctors Without Border/Médecins Sans Frontières.

Second, more attention is needed to the task of preventing and responding to sexual violence against Syrian women and girls. This must include medical care and counselling, enhanced security in camps and settlements occupied by displaced persons, and the provision of economic assistance to decrease the prevalence of early marriages and exploitation, including survival sex. British Foreign Secretary William Hague has launched an initiative to investigate and combat impunity for sexual violence in Syria, and as president of the G8 in 2013 the UK will promote a new international protocol on investigating and documenting sexual violence in conflict. G-8 members and other key governments should give full support to this initiative.

International Women’s Day is the ideal moment to mark a turning point from the impunity and neglect that has characterized responses to violations of the rights and needs of displaced women in Syria to date.

Editor's Note: This article was originally published in the Daily Beast as "Women Fleeing Syrian Rape Hell."

Authors

Megan Bradley

Publication: The Daily Beast

Image Source: © Muhammad Hamed / Reuters

Kenyans Head to the Polls - and a New Displacement Crisis?

Megan Bradley — Tue, 26 Feb 2013 11:45:00 -0500

Last night, Kenyans across the country crowded around radios and televisions for the second round of Presidential election debates. With elections less than a week away, tensions are running high. This is no ordinary election. The country’s last elections, in 2007, unleashed a surge of violence that left 1,300 dead and forced 600,000 from their homes – including some of my family friends, who fled the village of Ahero in western Kenya and eventually found shelter in the soccer stadium in Kisumu, Kenya’s third largest city. One of the leading presidential candidates and his running mate have been charged by the International Criminal Court with crimes against humanity for allegedly orchestrating much of this violence. Our friends have returned to Ahero, but scores of Kenyans will not be able to cast their votes on Monday from their home towns: an estimated 250,000 Kenyans are currently displaced. Some have still not been able to go home – or find a new home – after the last round of election violence. In 2012 alone, over 118,000 people were newly displaced by ethnically and politically charged violence.

On top of all this, in addition to a new president and MPs, Monday’s vote will see Kenyans elect representatives to a host of new positions created under the country’s 2010 Constitution. Chaloka Beyani, the Special Rapporteur on the Human Rights of Internally Displaced Persons (IDPs), points out that, “Elections this year are not only about national positions, but also about local ones. Power struggles over political representation at the local level have already resulted in new displacements in some instances.”

In order to ensure that Monday’s vote does not repeat the tragedy of 2007/2008, the government needs to ramp up efforts to prevent and prepare for potential violence and displacement. As the Special Rapporteur on the Human Rights of Internally Displaced Persons, has noted, “Instances of localized violence likely to result in the arbitrary displacement of persons in Kenya have steadily increased in the run up to the elections.” To its credit, the government of Kenya has laid the foundation for this prevention work by adopting a new IDP Act in December 2012 and approving a comprehensive IDP policy. According to the Special Rapporteur, “The IDP Act clearly obliges the government and others to guard against violence and prevent internal displacement.”

In addition to its obligation to prevent violence and new waves of displacement, the government of Kenya – and the international community – have a responsibility to hold the architects of the 2007/2008 crisis to account. Whatever the outcome of next week’s elections, this challenge must still be faced. In the meantime, I’ll be thinking of our friends in Ahero, hoping that the next time they visit the Kisumu soccer stadium, it will be to see a match and not to stay the night.

Authors

Megan Bradley

Image Source: © Stringer . / Reuters

An Indictment of the New Somali Government: Displaced Woman and Journalist Jailed for Raising Rape Charges

Megan Bradley — Thu, 07 Feb 2013 12:20:00 -0500

It’s hardly the headline Somali President Hassan Sheikh Mohamud wanted. After more than twenty years, the United States has officially recognized the government of Somalia. Recently elected President Mohamud has pledged to make the welfare and security of women a top priority, but while visiting the United States and the United Kingdom this week to drum up support for his new government, he was dogged by reports showing just how far Somalia has to go to make this promise a reality.

In early January, freelance journalist Abdiaziz Abdinur interviewed a displaced woman living in one of Mogadishu’s notoriously insecure camps. Breaking the taboo on speaking out about sexual violence, she alleged that in August 2012 she was raped by government security forces. Government sensitivities on this issue were already running high following a 6 January 2013 report from Al Jazeera on the prevalence of rape in the camps sheltering many of Somalia’s 1.5 million internally displaced persons (IDPs). Although Abdiaziz Abdinur never published anything about the rape allegation, government officials arrested him and the woman, insisting that her rape claim was fabricated and that circulating the story risks state security.

This week, a Mogadishu court sentenced the journalist to one year in prison for fabricating a false claim. The displaced woman was also sentenced to a year in jail, for making up a rape claim that endangers state security. She is to start serving her term in one year, once she finishes breast feeding her baby. Unfortunately, the convictions are hardly a surprise. Before the trial, the defendants were denied access to counsel, and high level officials publicly declared that the pair was guilty. For instance, Somalia’s interior minister stated that the “government would not tolerate reporting that incites the public or creates a situation where the national security of the country could be undermined.” The judge denied the defense lawyer the chance to call witnesses to testify, and refused to accept medical evidence challenging the prosecution’s argument that the rape did not take place.

Already hesitant to report rapes because of stigma and lack of faith in the police and justice systems, Somali women may now be even less likely to come forward. This ruling and the government’s handling of the case brings into question officials’ commitment to improving security for internally displaced women in Somalia. Somalia’s new government should reverse course by quashing the conviction, and redoubling its efforts to protect displaced women from attacks, and end impunity for rape. As a clear sign that he intends to continue Hillary Clinton’s outstanding record of advocacy in support of women’s empowerment, John Kerry should make not only the fight against terrorism, but also women’s rights and the protection of displaced persons, priorities in his dealings with the new Somali government.

Authors

Megan Bradley

Image Source: © Feisal Omar / Reuters

Refugee Repatriation: Justice, Responsibility and Redress

Megan Bradley — Fri, 01 Feb 2013 00:00:00 -0500

Download the full introduction » (PDF)
Learn more about the book at cambridge.org »

Certain crimes lie beyond the reach of repair. From torture and systematic rape to enslavement and ethnic cleansing, many of the violations that force refugees from their homes count among those injustices for which it is impossible to truly make amends. During the Cold War, many if not most refugees were resettled in western countries, defusing the explosive question of how refugees may be reconciled with their states of origin. Today, however, permanent resettlement is a rare solution to refugee crises. For millions of refugees, repatriation to their countries of origin is no longer an option but an imperative, the only alternative to the limbo of protracted displacement. This raises some critical questions: What can refugees legitimately expect from return? Are they entitled to anything more than a haphazard journey back to ruined or reoccupied homes in communities where their livelihoods are uncertain and their welcome lukewarm at best? If so, what are the conditions of a just return process? Who is obliged to ensure these conditions are met?

While sometimes fierce public and academic debates probe the obligations states of asylum owe to those harboured within their borders, the issue of what states of origin owe to returning refugees has often been overshadowed. Yet experiences from Guatemala and Cambodia to the Balkans and Afghanistan indicate that identifying the state of origin’s responsibilities to returnees and ensuring these duties are met is integral to safe and sustainable repatriation and peacebuilding processes and, in turn, a stable political future.

Historically, questions of justice and the ability of impoverished refugees to straggle back to their homes have rarely found space on political or scholarly agendas. However, over the past 25 years, the repatriation of refugees and the rectification of past injustices have emerged as multifaceted, pressing challenges for state policymakers and humanitarian practitioners alike. As former United Nations Secretary-General Kofi Annan argued in 2005, "The return of refugees and internally displaced persons is a major part of any post-conflict scenario. And it is far more than just a logistical operation. Indeed, it is often a critical factor in sustaining a peace process and in revitalising economic activity" (Annan 2005). The success of return operations depends on the ability of governments and non-state actors to confront and respond to the questions of justice the repatriation process puts front and centre, from the resolution of land disputes to accountability for the atrocities and inequalities that fuel forced migration.

Drawing on the tools of international law, moral theory, and political and historical analysis, this book focuses attention on the responsibilities states of origin bear towards their repatriating citizens and articulates a minimum account of a just return process. I contend that the goal of a just return must be to put returnees back on equal footing with their non-displaced co-nationals by recasting a new relationship of rights and duties between the state and its returning citizens. The conditions of just return match the core duties a legitimate state must provide for all its citizens: equal, effective protection for their security and basic human rights, including accountability for violations of these rights. Indeed, in the following chapters I will argue that remedies such as property restitution, compensation, apologies and truth commissions play a critical role in creating the conditions for a just return, as it is through such forms of redress that the state of origin may re-establish its legitimacy by acknowledging and attempting to make good on the duties it abrogated by forcing its citizens into exile. However, redress and return are invariably imperfect processes. While this book maintains that reparations are a critical expression of accountability for forced migration, and an essential component of a just return, it also engages in a detailed examination of the legal, moral and pragmatic political problems associated with efforts to uphold at least a degree of state responsibility for displacement and provide redress to returnees.

Downloads

Refugee Repatriation (Introduction)

Authors

Megan Bradley

Publication: Cambridge University Press

Kampala Convention Sets a Global Example for IDP Protection

Megan Bradley — Fri, 14 Dec 2012 00:00:00 -0500

Editor's Note: Read the full question and answer session at the World Politics Review.

An African Union treaty to protect internally displaced persons, known as the Kampala Convention, came into effect last week following its ratification by a 15th state. In an email interview, Megan Bradley, discussed the convention.

World Politics Review: What are the Kampala Convention's main provisions?

Megan Bradley: As the world’s first binding agreement on internally displaced persons (IDPs), the Kampala Convention is a human rights milestone. It takes a comprehensive approach, addressing multiple causes of displacement, such as conflict, human rights violations, natural disasters and development projects such as dams. Its provisions tackle every stage of displacement, including the prevention of displacement, assistance and protection during displacement crises and the resolution of displacement situations. The convention affirms that national governments bear primary responsibility for protecting and assisting those who are displaced within their borders, but it also addresses the obligations of a range of actors, including U.N. agencies, NGOs, the African Union, multinational corporations, nonstate armed groups and private security actors.

WPR: How does its entry into force alter the landscape of international legal provisions for internally displaced persons?

Bradley: The 1998 Guiding Principles on Internal Displacement have been widely recognized by governments and international organizations as a critical international framework and have been used to inform responses to internal displacement crises around the world. The Guiding Principles are based on international human rights and humanitarian law and refugee law by analogy. Although some governments recognize the Guiding Principles as reflective of customary international law, they are not themselves legally binding. In fact, when internal displacement first emerged as an issue on the international agenda two decades ago, reaching a binding agreement on IDPs seemed impossible. The Kampala Convention is a testament to African legal leadership and a reflection of how far attitudes toward internal displacement have evolved in the past 20 years. The Kampala Convention builds on the Guiding Principles and advances international norms on internal displacement in several important ways. For example, it strengthens individuals’ right to be protected against arbitrary displacement and indicates that those forced to flee their homes have a right to an effective remedy. This could include compensation, the restitution of their homes or other forms of redress. The convention provides an example that other regions dealing with internal displacement, such as Europe and the Americas, may wish to follow.

Read the entire interview at worldpolitics.com »

Authors

Megan Bradley

Publication: World Politics Review

Image Source: © Afolabi Sotunde / Reuters

Strengthened Protection for Internally Displaced Persons in Africa: The Kampala Convention Comes Into Force

Megan Bradley and Mike Asplet — Thu, 06 Dec 2012 00:00:00 -0500

Editor's Note: This article appears in the American Society of International Law Insights.

Introduction

On December 6, 2012, the world’s first regional treaty on internal displacement came into force. Adopted in Kampala, Uganda during an October 2009 Special Summit of Heads of State and Government on Refugees, Returnees and Internally Displaced Persons in Africa, the African Union Convention on the Protection and Assistance of Internally Displaced Persons in Africa (the “Kampala Convention”) has been signed by thirty-six African states and ratified by 15.[1]

The Kampala Convention’s entry into force continues Africa’s remarkable history of legal leadership on forced migration. The 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa dramatically expanded the protection afforded to those forced to flee African countries.[2] The Kampala Convention is an equally significant and sorely needed advancement, given that in 2011, more than 9.7 million people were internally displaced across twenty-one sub-Saharan African countries, representing one third of internally displaced persons (“IDPs”) around the world.[3]

This Insight provides a brief introduction to the Kampala Convention, highlighting the particular contributions the Convention makes to advancing norms on arbitrary displacement and accountability for internal displacement.

Advancing Protection for IDPs

The Kampala Convention builds on a number of soft law frameworks on IDPs, the most influential being the 1998 Guiding Principles on Internal Displacement.[4] Developed by the Representative of the United Nations Secretary-General on Internally Displaced Persons, the Guiding Principles draw on international human rights and humanitarian law, and refugee law by analogy. They address the rights and needs of IDPs at every stage from the prevention to the resolution of displacement, and have been widely endorsed, including by the General Assembly,[5] the Security Council,[6] the Human Rights Council,[7] and by Heads of State and Government at the 2005 World Summit.[8] The Guiding Principles have been integrated into the practice of major humanitarian organizations and laws and policies in at least 20 countries,[9] and are the centerpiece of the international “normative framework” on IDPs. Critically, the Guiding Principles stress that states bear primary responsibility for protecting and assisting IDPs within their jurisdiction.[10]

The Kampala Convention similarly underlines states’ primary responsibility for IDPs. Indeed, many of the Convention’s substantive provisions are incorporated directly, or with minor amendment, from the Guiding Principles. The Kampala Convention’s definition of “internally displaced person,” for instance, mirrors the Guiding Principles, which identify IDPs as persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border.[11]

After setting out this and other relevant definitions (Art. 1), the Convention’s objectives (Article 2) and general obligations (Article 3) are outlined. These form the backdrop for more detailed obligations on the prevention of displacement (Articles 4, 10); protection and assistance during displacement (Articles 5-9); displacement caused by development projects (Article 10); the resolution of displacement (Article 11); remedies for those affected by displacement (Article 12); documentation for IDPs (Article 13); and a number of procedural matters (Articles 14 to23).

Normative Advances in the Kampala Convention

The Annotations to the Guiding Principles emphasize that they merely reflect pre-existing norms of international human rights and humanitarian law.[12] The Kampala Convention is likewise underpinned by these areas of law, and in particular by regional instruments such as the African Charter on Human and Peoples’ Rights and the Great Lakes Protocol.[13] However, in a number of key areas, the Kampala Convention moves beyond these standards to significantly advance international norms on internal displacement.

Arbitrary Displacement

One of the Convention’s most notable contributions is the detailed elaboration of the right to be protected against arbitrary displacement. Article 4(4) outlines this right in detail, identifying acts deemed a violation of that right. The scope of coverage is extremely broad, including displacement due to discrimination, armed conflict, generalized violence and human rights violations, “harmful practices,”[14] unnecessary evacuations, or collective punishment.

The prohibition of arbitrary displacement is not, in and of itself, new to international law. The Fourth Geneva Convention prohibits “individual or mass forcible transfers” as a grave breach.[15] The Statute of the International Criminal Tribunal for Yugoslavia prohibited “unlawful transfers,”[16] and the Rome Statute lists forcible transfers of population as an act that may qualify as a crime against humanity.[17] However, in outlining the right to protection from arbitrary displacement, the Kampala Convention goes beyond these existing delineations and their reflection in the Guiding Principles.[18] For example, the provisions laid out in Article. 4(d) and (e) are significant innovations that capture displacement “caused by generalized violence or violations of human rights” and displacement “as a result of harmful practices.” These provisions, clearly influenced by human rights law, have no counterpart in other IDP frameworks to date.[19] Indeed, they fill a potential gap in international law generally. In order to trigger the prohibition on arbitrary displacement, violations do not have to be “widespread” (as with crimes against humanity), nor do these acts need to take place in armed conflict (as in the case of international humanitarian law). These provisions represent a very broad approach to the prevention of forced migration, one intended to capture any arbitrary displacement, in all circumstances. Indeed, Article 4(h) provides the catchall in case any situations are left out. Any arbitrary displacement due to an “act, event, factor, or phenomenon of comparable gravity” not justified under international law is also prohibited.

To be sure, arbitrary displacement is not strictly a “crime” under the Kampala Convention. In general, the Convention frames arbitrary displacement as a harm against which all persons have a right to be protected. However, Article 4(6) does oblige states parties to “declare as offenses punishable by law acts of arbitrary displacement that amount to genocide, war crimes or crimes against humanity.”[20] Concomitant obligations in other provisions demand that states parties “ensure individual responsibility for acts of arbitrary displacement, in accordance with applicable domestic and international criminal law.”[21]

Increasing Accountability for Internal Displacement

Beyond demanding increased responsibility for acts of arbitrary displacement, the Kampala Convention strengthens accountability for internal displacement in several important ways. The Convention stresses that primary responsibility for protecting and assisting IDPs rests with the state parties.[22] However, in countries such as the Democratic Republic of Congo, Sudan, Nigeria, and Mali, non-state actors are directly involved in causing internal displacement. At the same time, a wide range of actors may join national authorities in responding to internal displacement, including host communities, non-governmental organizations, and United Nations agencies. The Convention therefore also addresses not only the obligations and accountability of states parties, but also of a range of other actors including the African Union, humanitarian agencies, and non-state armed groups.

For example, in the case of armed groups, the Kampala Convention applies international humanitarian norms relating to the protection of civilians and humanitarian personnel to the IDP context: armed groups are to be prohibited from hampering, attacking, or impeding humanitarian personnel involved in assisting IDPs.[23] The Convention also addresses the accountability of multinational corporations and private military or security companies. Article 3(1)(h) demands that states ensure the accountability of these groups “for acts of arbitrary displacement or complicity in such acts,” while Article 3(1)(i) requires that non-state actors be held accountable when “the exploration or exploitation of economic natural resources” leads to displacement. These provisions clearly go beyond traditional, state-focused international human rights law, yet given the central role of such actors in many contemporary internal displacement crises, this bold approach increases the Convention’s relevance.

The Kampala Convention’s expansive approach to remedies for displacement may also strengthen efforts to ensure accountability for internal displacement. Discussions of remedies for IDPs have typically focused on the loss of housing, land, and property (“HLP”) as the central harm associated with displacement, and have promoted property restitution as the preferred form of redress for refugees and IDPs.[24] In contrast, the Kampala Convention takes a much broader approach. Article 12 requires that states “provide persons affected by displacement with effective remedies,”[25] including “just and fair compensation and other forms of reparations, where appropriate . . . in accordance with international standards.”[26] The damages for which IDPs may seek redress may therefore include not only HLP losses, but also physical, mental, and other types of harms. In addition, the Convention deepens the pool of potential claimants; as they are affected by displacement, members of host and return communities could also seek remedies under Articles12(1). The Convention also indicates in Article 12(3) that a “State Party shall be liable to make reparation to internally displaced persons for damage when such a State Party refrains from protecting and assisting internally displaced persons in the event of natural disasters.” However, whether and to what extent these remedies are accessible in practice remains to be seen.

Looking Forward

Despite the important achievement that the Kampala Convention represents, a number of challenges remain. The effective implementation of the Kampala Convention is undoubtedly the greatest challenge faced by the states parties and their international backers. The increased protection provided to IDPs under the Kampala Convention hinges on national enforcement, which requires well-tailored implementing legislation and strong support for the institutions charged with enacting these commitments. Continued efforts are also required to encourage more African governments, particularly those grappling with internal displacement situations, to sign and ratify the Convention, ensuring that this landmark legal achievement is translated into landmark gains for IDPs in practice.

[1] African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa [Kampala Convention], Oct. 22, 2009 (entered into force Dec. 6, 2012), available at http://au.int/en/content/african-union-convention-protection-and-assistance-internally-displaced-persons-africa. The Convention has been ratified by Benin, Burkina Faso, Central African Republic, Chad, Gabon, Gambia, Guinea-Bissau, Lesotho, Nigeria, Niger, Sierra Leone, Swaziland, Togo, Uganda, and Zambia.

[2] Convention Governing the Specific Aspects of Refugee Problems in Africa, Sept. 10, 1969, 1001 U.N.T.S. 45.

[3] Internal Displacement Monitoring Centre, Internal Displacement Global Overview 2011 (Apr. 2012), available at www.internal-displacement.org/publications/global-overview-2011. These figures pertain only to those displaced by conflict, generalized violence, and human rights violations. In addition, hundreds of thousands of Africans are internally displaced due to natural disasters and development and infrastructure projects.

[4] See E.S.C. Res. 1998/53, U.N. Doc. E/CN.4/1998/53/Add.2, Annex, available at http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/d2e008c61b70263ec125661e0036f36e [hereinafter Guiding Principles]; see also International Conference on the Great Lakes Region, Protocol to the Pact on Security, Stability and Development in the Great Lakes Region the on the Protection and Assistance to Internally Displaced Persons (Nov. 30, 2006).

[5] For example, at the 2005 World Summit, 192 Heads of State and Government unanimously recognized the Guiding Principles as an “important international framework for the protection of internally displaced persons.” (G.A. Res. 60/L.1, 132, U.N. Doc. A/RES/60/L.1 (Sept. 16, 2005)), and the General Assembly has not only welcomed “the fact that an increasing number of States, United Nations agencies and regional and non-governmental organizations are applying them as a standard” but also encouraged “all relevant actors to make use of the Guiding Principles when dealing with situations of internal displacement” (see G. A. Res. 62/153, 10, U.N. Doc. A/RES/62/153 (Mar. 6, 2008)).

[6] See S.C. Res. 1286, U.N. Doc. S/RES/1286 (Jan. 19, 2000).

[7] See H.R.C. Res. 6/32, U.N. Doc. A/HRC/RES/6/32 (Dec. 14, 2007); H.R.C. Res. 14/6, U.N. Doc. A/HRC/RES/14/6 (June 23, 2010).

[8] World Summit Outcome, G.A. Res. 60/1, 132, U.N. Doc. A/RES/60/1(Oct. 24, 2005).

[9] See Report of the Special Rapporteur on the Human Rights of Internally Displaced Persons, 42, U.N. Doc. A/67/289 (Aug. 10, 2012); see also, Brookings-LSE Project on Internal Displacement, IDP Laws and Policies Index.

[10] Guiding Principles, supra note 4, Principle 3(1).

[11] Id. 2 (“Introduction: Scope and Purpose”); Kampala Convention, supra note 1, art. 1(k).

[12] The Guiding Principles “restate in more detail those legal provisions that respond to the specific needs of internally displaced persons and spell them out in order to facilitate their application in situations of internal displacement.” See Walter Kalin, Annotations to the Guiding Principles, 38 Stud. in Transnat’l Legal Pol’y 6 (2008) [hereinafter Annotations]; see also Compilation and Analysis of Legal Norms, Report of the Representative of the Secretary-General Submitted Pursuant to United Nations Commission on Human Rights Resolution 1995/57, U.N. Doc. No. E/CN.4/1996/52/Add.2 (Dec. 5, 1995).

[13] Allehone Abebe, The African Union Convention on Internally Displaced Persons: Its Codification Background, Scope and Enforcement Challenges, 29 Refugee Surv. Q. 28, 42-45 (2010).

[14] Kampala Convention, supra note 1, art. 4(4)(e). “Harmful practices” are defined as “all behavior, attitudes and/or practices which negatively affect the fundamental rights of persons, such as but not limited to their right to life, health, dignity, education, mental and physical integrity and education.” See id. art. 1(i).

[15] Geneva Convention (IV) Relative to the Protection of Civilians in Time of War art. 49, Aug. 12, 1949, 973 U.N.T.S. 75. This also extends to non-international armed conflicts. Id. art. 85(4); see also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) art. 17, June 8, 1977, 1125 U.N.T.S. 609.

[16] Statute of the International Criminal Tribunal for the Former Yugoslavia art. 2(g), available at http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf.

[17] Rome Statute of the International Criminal Court art. 7(1)(d), July 17, 1998, 2187 U.N.T.S. 90, available at http://untreaty.un.org/cod/icc/statute/romefra.htm.

[18] Guiding Principles, supra note 4, Principle 6.

[19] Harmful practices, in particular, is an important concept in African human rights law. See, e.g., Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, July 11, 2003, available at http://www.africa-union.org/root/au/Documents/Treaties/Text/Protocol%20on%20the%20Rights%20of%20Women.pdf.

[20] Kampala Convention, supra note 1, art. 4(6).

[21] Id. art. 3(1)(g).

[22] Id. art. 5(1).

[23] States are likewise prohibited from impeding humanitarian access, but the obligations provided are couched in rather different terms. States must not “attack or otherwise harm” humanitarian personnel, and they must “allow rapid and unimpeded passage” for all relief consignments. See Kampala Convention, supra note 1, art. 5(7), (10).

[24] See Guiding Principles, supra note 4, Principle 29; and generally United Nations, Principles on Housing and Property Restitution for Refugees and Displaced Persons (2005) (known widely as the “Pinheiro Principles”), available at http://2001-2009.state.gov/documents/organization/99774.pdf.

[25] Kampala Convention, supra note 1, art. 12(1).

[26] Id. art. 12(2).

Authors

Megan Bradley
Mike Asplet

Publication: American Society of International Law

Image Source: © Afolabi Sotunde / Reuters

A Landmark for Human Rights: The Kampala Convention on Internal Displacement Comes into Effect

Megan Bradley — Thu, 06 Dec 2012 00:00:00 -0500

Swaziland rarely tips the balance in international politics. But one month ago, Swaziland made history by becoming the fifteenth state to ratify the world’s newest human rights treaty, the African Union Convention on the Protection and Assistance of Internally Displaced Persons in Africa. Known as the Kampala Convention, it is the world’s first binding agreement on internally displaced persons, or IDPs. With Swaziland’s ratification, the Convention comes into force on December 6, and it’s not a minute too soon.

IDPs are individuals who have had to flee their homes, but unlike refugees they have not crossed an international border. Consequently, many IDPs struggle to access essential humanitarian assistance and protection of their rights. Around the world, more than 26 million people are internally displaced due to conflicts. More than a third of them are in Africa. In fact, some of the world’s most complex internal displacement crises are to be found in Africa, from the uprootings in northern Mali to the protracted displacement situation in Darfur and the emergency in the Democratic Republic of Congo (DRC), where thousands fled after the M23 rebel group captured the eastern city of Goma last month. In addition to the almost 9 million African IDPs uprooted by conflicts, thousands if not millions more have been displaced by development projects, land grabbing and environmental disasters, many linked to the effects of climate change.

In this landscape of struggle, the Kampala Convention stands out as a remarkable achievement that may – if taken seriously – make a concrete contribution to improving the lot of IDPs in Africa.

The Kampala Convention is not the first time African states have taken the lead in developing new laws to protect and assist those forced to flee their homes. In 1969, the Organization of African Unity developed a new international convention that dramatically expanded refugee protection in Africa, taking into account the particular challenges proxy wars and independence struggles posed for refugees across the continent. The Kampala Convention follows in this tradition, addressing increasingly significant causes of displacement such as natural disasters, and important new actors in displacement contexts, such as multinational corporations and private security forces. The Convention strengthens the prohibition on arbitrary displacement, and the right to a remedy for those affected by displacement. It addresses the rights and needs of those who are internally displaced, but also directs states to take action to prevent displacement, and to promote its resolution.

Bringing together the Kampala Convention has been an enormous accomplishment, but this is not the end of the process. The challenge now is to transform these provisions into tangible improvements in the rights and wellbeing of IDPs across Africa. What would it take to make this happen?

First, concerted efforts are needed to encourage those African countries that have not yet signed or ratified the Convention to do so as soon as possible. Several states with serious displacement crises such as the DRC, Somalia, Sudan, South Sudan and Côte d’Ivoire have not yet ratified the agreement, but IDPs in these countries would undoubtedly benefit from Convention’s protections.

Second, awareness-raising initiatives are required so that government and civil society actors at different levels across the continent can learn about the Convention and its implications for their work. Parallel efforts are needed amongst international organizations and donor officials that may be in a position to help promote and support the implementation of the Kampala Convention. Information about the Convention should also be shared with other regional organizations and governments outside of Africa, who may be interested in applying the insights from the Kampala Convention process to their own contexts.

Third, the Kampala Convention’s international supporters should help facilitate the development of an African-led implementation plan for the Convention. This would build on the activities that have already started to promote the agreement’s implementation, such as the development of the AU Model Law on the Kampala Convention. It would likely entail activities on several fronts, including trainings and support for the development of comprehensive national laws and policies on internal displacement that anchor states’ obligations under the Convention in robust domestic frameworks. These domestic laws and policies must ensure that adequate support is provided from national budgets to implement the Convention (as the Convention indeed requires), and that the specific national authorities responsible for upholding the Convention are clearly identified. Experiences in Africa and around the world have demonstrated that backing up innovative international agreements such as the Kampala Convention with strong domestic laws is essential to ensuring that the obligations laid out in these instruments don’t just exist on paper, but translate into improved practice. This lesson needs to guide efforts to implement this new Convention on IDPs.

As one of the principal drafters of the Kampala Convention, the Special Rapporteur on the Human Rights of Internally Displaced Persons, Dr. Chaloka Beyani, is uniquely positioned to play an important leadership role, alongside African states and the AU, in the development and execution of such a plan. Timely support from UN agencies, donors and other international actors will be critical to backstopping the leadership shown on this issue by the AU and its member states. Five years from now, the Kampala Convention will, according to the terms of the agreement, come up for review. Our challenge is to ensure that 2017 is time for the celebration of another landmark for human rights: the comprehensive implementation of the Kampala Convention across the African continent.

Authors

Megan Bradley

Gaza Conflict Overshadows Essential Debate on the Right to Return

Megan Bradley — Sat, 17 Nov 2012 00:00:00 -0500

Israeli troops are poised for a ground assault in Gaza, eclipsing another firestorm re-ignited in the Middle East this month when Palestinian Authority President Mahmoud Abbas was asked if he wanted to return to Safed, the town he fled as a refugee in 1948. Abbas replied, “I want to see Safed. It’s my right to see it, but not to live there.”

The question came in an interview on Israel’s Channel 2 television, at the start of the Israeli national election campaign, and in the heat of Abbas’ drive for recognition by the United Nations as a non-member observer state. So unsurprisingly, the comment sparked an impassioned response. On the Israeli side, President Shimon Peres applauded Abbas’s “brave and important public declaration.” Defense Minister Ehud Barak called the statement “very important because of its clarity.” Prime Minister Benjamin Netanyahu’s reaction was frostier, saying “he has already managed to recant.”

Amongst many Palestinians, Abbas has been denounced as a traitor and a panderer for seeming to concede a sacred principle. Abbas tried to tame the fire by saying his statement reflected only his “personal position”, not a change in longstanding PLO policy backing the right of return. Perhaps by now Abbas wishes he could take the whole thing back, but he shouldn’t. However ham-fisted, his comments provide an opening for rethinking what the right of return means, and re-imagining how it might be exercised. This is not only a matter for the Palestinians. It’s a discussion for everyone with a stake in this conflict, and one that can benefit from looking at the right of return in other refugee situations. It’s a discussion that is constantly pushed aside by distrust and developments such as the renewed violence in Gaza, but it’s one that is essential to a sustainable solution to the conflict.

To date, discussions on the right of return in the Middle East have been little more than polemics, with both sides claiming they have history in their favour. Israeli leaders have typically declared that the right of return doesn’t exist, at best offering reparations as a substitute. Israel points to the population exchanges between Greece and Turkey and after the partition of India to suggest that return is exceptional. Even if some refugees return, they maintain, this right does not pass down through generations. In contrast, Palestinians point to international law backstopping the right of return and the emergence of return as the so-called “preferred solution” to refugee crises. In countries as diverse as Bosnia, Tajikistan and Guatemala, refugees and their children have exercised their right to return to their countries and reclaim their homes. Why should the Palestinian case be any different?

Palestinians are correct that the right of return is well established in international law. Visiting Palestinian refugee camps such as Bourj al-Barajneh in Beirut made it abundantly clear to me that insistence on the right of return is not simply a foil for opposition to peace. It is a conviction about their experience of injustice, and a core part of Palestinian national identity. It cannot be wished away.

And yet, a closer look at other refugee situations shows a diverse range of ways to conceptualize, exercise – and delimit – the right of return. It is not an unfettered right to repossess lost lands, and for many this is not its most salient aspect.

And yet, a closer look at other refugee situations shows a diverse range of ways to conceptualize, exercise – and delimit – the right of return. It is not an unfettered right to repossess lost lands, and for many this is not its most salient aspect. For many of those displaced from Srebrenica, the right of return meant going back to bury their dead, and commemorate the genocide. For Bihari refugees displaced during the war that led to Bangladesh’s independence, the right of return meant moving to Pakistan, a country where most had never set foot, but where they felt they belonged. Mozambique’s peace agreement recognized refugees’ right to return to the country, but their right to reclaim their original lands was tempered in practice. While many Mozambicans sought shelter abroad, thousands more were displaced inside the country, often settling on refugees’ lands. Uprooting those who had lived for years on the refugees’ land would not support a just resolution to the conflict. Instead, the right of return was negotiated alongside the right to remain.

In his interview, Abbas offered a vision of the right of return that is admittedly at odds with its predominant conception amongst Palestinian refugees, but it is one amongst many possible legitimate ways of imagining the right of return. So too is conceiving of the right of return as migration to new homes in an independent Palestinian state. Abbas suggested as much in a 2011 interview, also implying that exercise of the traditional Palestinian interpretation of the right of return would come with restrictions few refugees would want to accept: “Okay, you want your right of return. It’s okay, when we come to it, we will do our best to try to fulfill your dream...But at that time, I don’t know whether the five million [refugees] will ask [to return to Israel], maybe some of them will ask for compensation and that’s it. Some of them will ask, okay, I will return back to Palestine. Some will return back to Israel. But when they think of it deeply, okay, you are going to Israel, to be a member of the Israeli society, to raise the Israeli flag…Oh no, no. We don’t go into details, no, but if somebody asks, I will answer them: If you want to go to Israel, of course, you have to be an Israeli citizen.” A large-scale survey conducted in 2003 among Palestinian refugees suggested that only 10 percent would want to return to Israel on such terms.

Challenging the orthodoxies of how the right of return is imagined on all sides of the Israeli-Palestinian conflict is a thankless task, particularly as Israelis and Palestinians head into another clash in Gaza. Nonetheless, Abbas’s comments are a chance to re-engage in a conversation no one wants, but everyone needs. It is only by opening the door to new and diverse conceptions of the right of return that the ever-elusive “just solution” to this conflict can be found.

Authors

Megan Bradley

Publication: The Ottawa Citizen

Bracing for Sandy: Cutting the Cost of Disaster

Megan Bradley — Tue, 30 Oct 2012 00:00:00 -0400

The year 2012 has been my year of storms. When I moved from Ottawa to Washington, D.C., in April, I was prepared for a sweltering summer, and almost looking forward to seeing the U.S. capital grind to a halt in winter with a couple inches of snow.

But living in the U.S. has come with much more extreme weather than I had expected. June thunderstorms killed 22 and left a million D.C.-area residents in the dark. In August I travelled to New Orleans to conduct interviews on displacement caused by Hurricane Katrina, only to be met by Hurricane Isaac. Now back in D.C., I’m watching the wind whip the trees and rip off our neighbour’s gate as Hurricane Sandy comes ashore. States farther north are expected to bear the brunt of the storm, but this is plenty close for comfort.

My year of storms comes on the heels of a relatively quiet but incredibly expensive period for natural disasters. Overall, natural disasters are on the rise, due in large part to the effects of climate change. 2011 bucked this trend, offering up the lowest number of natural disasters since 2000. These disasters affected an estimated 206 million people — a remarkable number, yet 10 per cent lower than the average over the past decade.

At the same time as 2011 saw a comparatively low number of disasters, these events had record-high costs. Losses exceeded $380 billion U.S. in 2011, making last year the most expensive in history in terms of damages from disasters. 2011 topped the damages charts because so many of the disasters struck wealthy countries, with floods in Canada and Australia, an earthquake in New Zealand, and the triple-disaster of the earthquake, tsunami and nuclear meltdown in Japan.

At $210 billion U.S., recovery and reconstruction efforts in Japan made up more than 55 per cent of disaster damages in 2011, but the U.S. was also heavily hit by disasters last year. Between hurricanes, blizzards, wildfires, droughts and tornadoes, the United States had 14 disasters costing more than a billion dollars each. The German insurance giant Munich Re estimates that the tally from Hurricane Irene alone exceeded $15 billion U.S.

Staggering as these figures are, they would be incalculably higher if the governments involved had not invested heavily in disaster preparedness and mitigation. In poorer countries that are less able to make such investments, the financial cost of disasters may be less, but the price in terms of lives lost is almost invariably higher.

But when catastrophes are averted, we in wealthy countries sometimes come to doubt the value of this investment in preparedness. For example, when Hurricane Irene bore down on New York just over a year ago, Mayor Michael Bloomberg ordered the evacuation of 370,000 residents from low-lying areas and shut down the city’s transit system for the first time ever for weather-related reasons. By the time Irene struck New York, it had slowed to a tropical storm, leading some pundits and residents to wonder if the preventive measures were excessive.

If Hurricane Sandy is by some miracle a tamer storm than expected, the same questions may well be asked again. But we need only look to countries such as Haiti and Pakistan to see the cost of cutting corners on prevention.

Or, we can even look closer to home, to the city of New Orleans. More than 1,800 people died in Hurricane Katrina and the ensuing floods, the vast majority of them in New Orleans. Seven years after Katrina, the city’s population has shrunk from 485,000 to 360,000. Twenty-one per cent of residential properties in the city are blighted or abandoned, 27 per cent of New Orleanians live in poverty compared to a national average of 15 per cent, and thousands continue to experience symptoms of post-traumatic stress disorder.

Investing in disaster mitigation infrastructure, preventively evacuating vulnerable neighbourhoods, closing schools, suspending trade and halting transit is expensive and inconvenient, but this cannot compare to the potential costs — economic and human — of inaction.

As Hurricane Sandy bore down on the east coast in election season, it was clear that while some may question the timing of evacuations and closures, Katrina has made important changes not only to the economic but also to the political calculus of disaster preparedness and response. President Barack Obama cancelled campaign events in Florida to return to the White House to direct final storm preparations, and be seen at the helm of the eventual response and recovery work.

Mitt Romney has also suspended his campaign schedule, encouraged donations to the Red Cross, and even reminded supporters to make sure that their preparations include bringing their “Romney-Ryan 2012” yard signs inside, cautioning that “In high winds they can be dangerous and cause damage to homes and property.”

Runaway lawn signs may be the least of the worries facing those in the path of Hurricane Sandy. Yet when we come to look back on this year of storms, investments in preparedness, from the household to governmental levels, will undoubtedly have paid off. We need to sustain these preparedness efforts, and do more to support them in countries that lack the money, but still cannot afford to be unprepared.

Authors

Megan Bradley

Publication: Ottawa Citizen

What Does the Kampala Convention on Internal Displacement in Africa Mean for Housing, Land and Property Restitution?

Megan Bradley and Mike Asplet — Thu, 25 Oct 2012 00:00:00 -0400

The African Union’s Kampala Convention for the Protection and Assistance of Internally Displaced Persons (IDPs) in Africa will hopefully come into force any day now. When it does, it will be the first regional treaty to comprehensively address the IDP issue, from preventing displacement to providing protection and assistance, and supporting durable solutions. The Kampala Convention represents a critical new tool for tackling some of the largest and most complex IDP situations in the world: some 10 million people are internally displaced across the continent, making up one third of the world’s IDP population.

The treaty reflects well-established normative frameworks, primarily the Guiding Principles on Internal Displacement, which have to date provided the foundation for IDP protection and assistance efforts. However, the Kampala Convention also significantly advances the normative framework on internal displacement in several key areas. These include protection from arbitrary displacement; the responsibilities of the African Union, multinational companies and private security actors; and the right to a remedy for the wrongs associated with displacement, including the loss of housing, land and property (HLP). The question of remedies for lost HLP is particularly important, as land conflict is at the root of many internal displacement flows in Africa, and the resolution of hotly contested land claims represents a key barrier to solutions for thousands of IDPs.

On first glance, it doesn’t seem like the Kampala Convention has much to say about land issues, and in particular the restitution of displaced persons’ lost property. In light of the popularization of the (contested) UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (the so-called “Pinheiro Principles”) and trends such as the now-common practice of explicitly addressing the restoration of displaced persons’ HLP rights in peace treaties, it is striking that there is no reference to restitution in the Kampala Convention. This omission is clearly deliberate. While many provisions from the Guiding Principles have been specifically incorporated into the Kampala Convention (in some places without amendment), the documents diverge considerably in their approach to question of HLP rights, and restitution in particular.

The Guiding Principles on Internal Displacement indicate in Principle 29(2) that

Competent authorities have the duty and responsibility to assist returned and/or resettled internally displaced persons to recover, to the extent possible, their property and possessions which they left behind or were dispossessed of upon their displacement. When recovery of such property and possessions is not possible, competent authorities shall provide or assist these persons in obtaining appropriate compensation or another form of just reparation.

In contrast to Guiding Principle 29(2) and the Pinheiro Principles, which both use property as their entry point into the issue of remedies for the displaced, the Kampala Convention takes a broader approach. Whereas the Guiding Principles and the Pinheiro Principles specify types of property that may be affected by displacement and underline IDPs’ rights to recover or be compensated for such assets, the Kampala Convention focuses primarily on the harms associated with displacement, including but not limited to violations of HLP rights.

To be sure, land issues are addressed in Article 11(4), which indicates that “States Parties shall establish appropriate mechanisms providing for simplified procedures where necessary, for resolving disputes relating to the property of internally displaced persons.” Article 11(5) goes on to provide that “States Parties shall take all appropriate measures, whenever possible, to restore the lands of communities with special dependency and attachment to such lands upon the communities’ return, reintegration, and reinsertion.”

These provisions nod in the direction of the 2010 decision from the African Commission on Human and Peoples Rights in the Endorois case, and reflect a relatively narrow interpretation of IDPs’ rights to reclaim lost lands.

These provisions nod in the direction of the 2010 decision from the African Commission on Human and Peoples Rights in the Endorois case, and reflect a relatively narrow interpretation of IDPs’ rights to reclaim lost lands. The property dispute resolution mechanisms that States are encouraged to establish under Article 11(4) are not explicitly enjoined to restore property to displaced claimants, tacitly recognizing that in some cases other groups (for example, longstanding secondary occupants) may also have a legitimate claim to the land. States Parties’ specific duty to “restore lands” comes into play only where there is “special dependency and attachment”. Even this obligation is couched in limited terms, as “appropriate measures” are only required “whenever possible”.

On a first reading, this may seem like a step back for the protection of IDPs’ HLP rights. However, a closer inspection of the provisions demonstrates that the scope for remedies – including restitution – extends well beyond this provision, and indeed beyond what is articulated in the Guiding Principles and the Pinheiro Principles. Granted, Article 12 of the Kampala Convention, which focuses on remedies for displacement, does not refer to housing, land or property. Instead, it underscores the individuals affected, and the harms that they may have suffered, regardless of whether these harms are manifested in the dispossession of property. It moves beyond the individual’s right to restitution, and instead demands the more expansive corollary: an obligation to remedy.

Article 12 opens by stating simply that States “shall provide persons affected by displacement with effective remedies”. This general obligation reflects the well-entrenched human rights law requirement that there be effective remedies when human rights are violated (see, for example, Article 2(3) of the International Covenant on Civil and Political Rights). It continues by providing that these remedies may include “compensation” as well as “other forms of reparations”.

Most importantly, Article 12 provides that these remedies will be “for damage incurred as a result of displacement, in accordance with international standards.” Framed in this way, the type of damage is open-ended, and may well include dispossession of real or personal property (including occupancy rights and tenure) or indeed, physical and mental harm. Certainly, where there is any breach of the Convention, these articles do not exclude the possibility for redress. This opens up the potential for remedies for displacement in itself, for violent treatment, or for discrimination, or any other breach of human rights that is prohibited under the Kampala Convention and other instruments. Article 12(3) for example, provides that reparations shall be payable for damages incurred when a state merely “refrains from protecting and assisting” IDPs in the event of a natural disaster.

In a particularly progressive move, States may also be liable to provide effective remedies even when they had no hand in the dispossession or damage incurred. The Pinheiro Principles, for example, limit the scope of state liability to situations in which persons are “arbitrarily” or “unlawfully” dispossessed. No such limitations are applied in Kampala; remedies may be sought by any person “affected by displacement”, even in cases where the displacement occurs because of natural disasters or for any other reason outside the state’s control. Importantly, this wording suggests that in addition to IDPs themselves, other groups affected by displacement such as host and return communities may also be entitled to redress.

This approach has theoretical as well as practical significance. For example, following 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 Series Violations of International Humanitarian Law, the Kampala Convention challenges the conventional designation of restitution as the “preferred remedy” for violations of human rights. (In contrast, the Pinheiro Principles identify restitution as “the preferred remedy” while the Guiding Principles indicate that compensation or other forms of just reparation should be pursued “where recovery of such property and possessions is not possible.”)

This has important implications for the link that is often made between restitution as the “preferred” remedy for displacement, and return as the “preferred” solution to displacement. While return is in many cases desirable and should be an option for IDPs, it is important that remedies for displacement open up a range of choices for IDPs regarding the resolution of their displacement, rather than concertedly focusing on a particular solution, such as return, at the expense of other options. By putting restitution, compensation and other remedies on level footing, the Kampala Convention’s provisions on redress reinforce the notion, expressed in Article 11, that IDPs should be able to make a free choice between voluntary return, location integration or relocation as equal alternatives.

The Kampala Convention rejects a narrow focus on the restitution of housing, land and property rights, and offers a more pragmatic, contextually appropriate approach to remedying loss than we have seen in previous instruments. Once it comes into effect, the goal must be to ensure that remedies are in fact made available to those affected by displacement. Given that IDPs in Africa and around the world have long lacked access to effective remedies, the magnitude of this challenge should not be underestimated.

Authors

Megan Bradley
Mike Asplet

Publication: TerraNullius

Notes from the Field: Haiti-Displacement and Development in the "Republic of NGOs"

Megan Bradley — Thu, 11 Oct 2012 11:30:00 -0400

Haiti is often nicknamed the "republic of NGOs." Since the earthquake of 12 January 2010, the number of NGOs – mostly relief and development groups – working in Haiti exploded from 3,000 to an estimated 10,000. Touching down in Port-au-Prince on Friday, it struck me that Haiti, or at least its capital, could also be known as the republic of rebar. Across the cityscape, rebar protrudes from thousands of roofless buildings, attesting to the progress made since the earthquake that virtually flattened the city and killed 223,000, but also the work that remains to be done.

Last month, former President Bill Clinton’s Office of the UN Special Envoy for Haiti, announced that almost half of the $12.32 billion pledged by governments for relief and recovery in Haiti from 2010 to 2020 has now been disbursed. The amount of aid delivered in Haiti in 2010 alone outstripped the country's total internal revenue by four times. This considerable expenditure has not yielded a coherent response to one of the country's greatest post-disaster challenges: Haiti's housing crisis. 1.5 million people were displaced by the earthquake and its aftershocks. Now, more than two and a half years later, 369,000 remain displaced. They are sheltered in tent cities in Port-au-Prince and on crowded sidewalks in shanties made with tarps emblazoned with the logos of the republic's many NGOs, and the words "From the American people."

Scattergun efforts have been made to resolve the persistent displacement problem, including the eviction of thousands encamped in public squares. Some have benefitted from efforts to repair 15,000 of the 200,000 homes damaged or destroyed by the quake. Others have accessed grants to enable them to move into rental apartments for one year. What will happen after the year is up remains to be seen.

One of the most controversial strategies embraced by the Haitian government and its international supporters has been to push against the tide that has over past decades brought untold scores of Haitians from the impoverished countryside to the capital, leaving Port-au-Prince impossibly, almost unbelievably, crowded. Many programs have incentivized relocation to rural communities, offering housing and other forms of critically needed support to those willing to leave the city.

Conversations I've had with Haitians this week in villages between Port-au-Prince and Léogâne, the epicenter of the quake, highlight the promise and peril of this strategy. Many Haitians are remarkably eager to return to – or stay in – their towns and villages. The issue now, as it was before the quake, is the lack of work and development opportunities across the country, but particularly outside the cities. Even in this "republic of NGOs," the reach of NGO-supported development initiatives remains modest – almost as modest as the reach of the Haitian state into its rural communities. It is increased support for sustainable livelihoods – through NGOs but above all through a strengthened Haitian state – that is essential to durable solutions for those who remain in the tent cities and sidewalk shanties. That only ten percent of earthquake recovery funds to date have been channeled through the government of Haiti should caution against optimism that the government will be able to shoulder this responsibility any time soon.

One of the brightest and most energetic young men I met in the Haitian countryside this week admitted that while he dreams of working as an engineer, upon graduation he will likely have to follow the national trend and "go home and sit down." Haitians like the young man I met want to work to create viable futures for themselves and their families outside the compacted chaos of Port-au-Prince. Resolving the country's lingering displacement crisis requires this challenge be met head on.

Authors

Megan Bradley

Doing Justice for Refugees and IDPs? Confronting Displacement Through Transitional Justice

Megan Bradley and Roger Duthie — Mon, 17 Sep 2012 00:00:00 -0400

Serious human rights violations are very often an integral part of displacement crises. Certain violations, such as mass killings, arbitrary arrests, torture, and rape, often cause displacement, while others, such as the destruction of homes and property, can be aimed at undercutting the possibility to return home. Forcible displacement is frequently a deliberate strategy used by parties to a conflict and can in itself constitute a war crime or a crime against humanity. In addition, displacement can leave its victims vulnerable to other abuses, without the protection provided by their homes, livelihoods, communities, and governance structures.

Transitional justice is generally understood to be a response to the legacies of massive and serious human rights violations, one that tries to provide redress for victims and accountability for perpetrators through a set of measures including criminal prosecution, truth-telling, reparation, and institutional reform. Given the links between rights violations and displacement, transitional justice measures certainly have good reasons to address the issue of displacement. And yet, for the most part, displacement has not been the focus of a lot of transitional justice practice and literature.

In 2009, the International Center for Transitional Justice (ICTJ) and the Brookings-LSE Project on Internal Displacement began a collaborative research project to examine the role that transitional justice could play as part of the response to displacement. Specifically, we looked at the capacity of transitional justice measures to address displacement, to respond to the justice claims of internally displaced persons and refugees, and to support durable solutions. Importantly, we also looked at the conceptual links between transitional justice measures and the activities of the humanitarian, development, and peacebuilding actors that generally work more directly on displacement.

The project’s final products include a report that highlights our conclusions and recommendations; an edited volume containing the project’s thematic studies; and 14 case studies on country experiences from Central Africa, Colombia, Israel-Palestine, Kosovo, Liberia, Peru, Timor-Leste, Turkey, and the former Yugoslavia. These are all available to download through the ICTJ and Brookings-LSE Project websites. ICTJ’s website also has an interactive map to highlight the research though photographs and visual data.

What were some of our most important findings? To start with, a number of recent reports, resolutions, and guidelines have acknowledged the need for societies struggling to resolve displacement crises to respond to the justice concerns of IDPs and refugees. These include the 2004 and 2011 versions of the Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, the Inter-Agency Standing Committee’s 2010 Framework on Durable Solutions for Internally Displaced Persons, the 2009 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, and the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons.

Furthermore, while transitional justice measures have not traditionally engaged in depth with the concerns of refugees and IDPs, they have in some places addressed displacement. Restitution of housing, land, and property, for example, is the justice measure probably most directly connected to displacement, and restitution programs have been implemented in countries such as Bosnia and Herzegovina, Timor, Kosovo, and Iraq.

Reparations programs can provide benefits for abuses that led to displacement, for harms suffered while displaced, or for displacement itself, but while programs in Guatemala, Peru, and Colombia consider displaced persons eligible to receive benefits, they are yet to receive any for the violation of displacement itself. Truth commissions, as in Liberia, Sierra Leone, Timor-Leste, and Guatemala, are increasingly recognizing and investigating displacement, with some holding sessions making recommendations on the issue. And an international legal framework now exists to criminally prosecute arbitrary displacement when it qualifies as a war crime or crime against humanity, and cases at the ICC, the ICTY, and in Colombia have included charges of forcible displacement.

We also found that responding to displacement with transitional justice raises a particular set of challenges. For example, given the scope and complexity of large-scale displacement, transitional justice measures have a limited capacity to deal directly with the problem. This is particularly the case with measures that seek to provide redress directly to victims, because the large numbers of displaced people present significant resource and institutional challenges. Criminal justice efforts may also be constrained, both because, with limited resources, prosecutors often prioritize more traditional crimes and may be hesitant to add to the complexity of cases by including displacement crimes, but also because international jurisprudence on forcible displacement as a crime is less developed than it is for other violations.

Displaced or formerly displaced persons also face significant obstacles to participating in or accessing transitional justice programs: information might not be available; displaced persons often lack necessary identity documents; poverty, marginalization, and physical inaccessibility can make it difficult to travel and engage; and material and logistical challenges and fear of reprisals can prevent mobilization. Finally, transitional justice and other actors may not share the same goals, approaches, or priorities. Humanitarian actors, for instance, have a different mandate and may broadly support efforts to hold perpetrators accountable but find that actively supporting justice efforts results increased levels of physical risk in the field, and restricted access to needy populations.

However, our work suggests ways in which different transitional justice measures can be designed to try to overcome some of these challenges. Given the huge numbers of people that can be affected by displacement, administrative processes are likely more appropriate than judicial ones for reparations and restitution programs, as they are faster and more accessible, cost effective, and flexible in terms of evidentiary standards. Given resource constraints, reparations programs can be crafted in response to assessments of the needs and priorities of displaced populations: often the context will be one of poverty, so benefits can be crafted to help reduce economic vulnerability, and can include assistance for education and mental health, which are often among the needs of displaced. Collective and symbolic reparations may be particularly appropriate in displacement contexts. For criminal justice, specific units and investigation methodologies can be set up at the national level for crimes of displacement, while demographic and quantitative analysis can be used to portray the scope and patterns of displacement.

If transitional justice measures do respond to displacement, they need to engage with IDPs and refugees in meaningful ways, including through outreach and participation. Participation will likely be affected by the level of organization and mobilization of civil society groups representing the displaced, but the participation of displaced populations can be supported by making material available in different languages, holding events in camps and in diaspora communities, sending investigators/officials to meet displaced groups, and using media and technology to disseminate information to dispersed groups and across borders.

Incorporating gender perspectives is particularly important because gender affects the way people experience displacement; men and women suffer different abuses and face different obstacles in engaging with transitional justice and humanitarian processes. Sexual and gender-based violations often are factors in causing displacement, and these crimes are common while people are displaced. While sexual and gender-based violence needs to be addressed through transitional justice measures, it is important that efforts to respond to gender-based injustice not focus solely on this, as displaced women have a wide range of concerns regarding the economic and social repercussions of displacement and its effects on family life.

Ultimately, we found, transitional justice measures are likely to be most effective in addressing displacement if they form part of a broader but coherent overall response to the problem. This can involve both taking steps to minimize potential tensions with other actors and pursuing opportunities for cooperation and coordination. In a number of cases, humanitarian and other actors that work on displacement have been involved in justice measures—for example, UNHCR with truth commissions, IOM with reparations, NRC with restitution—but their capacity to do so can certainly be strengthened. Coherence also depends, however, on the extent to which justice measures are implemented in parallel with a broader set of structural reforms—including land reform and institutional reform and capacity building—that address the root causes of displacement.

One of the more important long-term contributions that transitional justice can make to resolving displacement, we believe, is in facilitating the integration or reintegration of displaced persons into communities and societies. Reintegration is a critical aspect of all three durable solutions, but it may be something that is significantly hindered by the legacies of past abuses, which can impact both individuals and the communities they reintegrate into. Yet the actors working on displacement do not generally focus on dealing directly with past abuses.

Criminal justice and justice-sensitive SSR, then, may facilitate reintegration by improving the security of formerly displaced persons—through removing known perpetrators from security institutions and local communities—and by making reintegration more durable by helping to prevent the recurrence of the abuses that led to displacement—through the dismantling of criminal networks and structures. Reparations and restitution may facilitate economic reintegration and the rebuilding of livelihoods, increasing access to shelter and land, supporting the construction of homes and businesses, and providing mental health or education assistance.

Truth-telling may contribute to social reintegration by reducing tensions between those who remained home, those who were displaced, and host communities—all groups who suffer in different ways during conflict, but not in ways that are necessarily mutually understood. The goals of transitional justice—trust, recognition, rule of law—may facilitate political reintegration generally, but they also may be particularly relevant for displaced persons whose relationship with the state will have been inherently damaged. More specifically, transitional justice processes may also catalyze civil society organizations representing displaced persons’ interests.

Overall, our hope is that this research—the product of extensive collaboration between researchers and practitioners on all five continents—is the beginning of a longer-term conversation on the promotion of accountability for displacement and the crimes at its root. This is a conversation that needs to engage a wide range of actors, including governments, international organizations, NGOs, and displaced persons themselves. Ultimately, of course, its goal must be to move from discussion and debate to improved practice.

Authors

Megan Bradley
Roger Duthie

Publication: TerraNullius

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