Fathima Azmiya Badurdeen and Anuradha Gunerathne
In Sri Lanka, the twenty six year old conflict between the government forces and the Liberation Tigers of Tamil Eelam (LTTE) have result in massive waves of displacement. Attributed to these waves of displacement are the massive human rights violations such as arbitrary arrests, torture, rape and killings. Controversial debates also surround on the context of whether certain waves of displacement were intentional and constitute a war crime (Human Rights Report 10). Within this context includes violations associated with displacement along with specific abuses of rights associated to durable solutions (Yoshikawa 5-6). Amidst these contexts, it becomes futile to address transitional justice without addressing the human rights violations of the displaced. For, transitional justice incorporates the addressing of legacies of massive human rights abuses that occur during armed conflicts which includes the displaced, as well as the rights of the displaced in the context of durable solutions.
Linking transitional justice with displacement is important as many countries that pursue transitional justice mechanisms/processes have many displaced populations. Displacements results in forcibly being evicted from one’s home and society and are unable to return to their original homes and lives. This, forcible being displaced or uprooted from their homes against their will are human rights violations. Apart from this, they also face human rights violations in the process of flight such as loosing lies, loss of property, disappearances, gender-based violence, torture or arbitrary detention. In addition, they may also face human rights violation in the camps and in the process of attaining durable solutions: as in the right to return to their origins, or in the process of integration in the place of displacement or in the place of relocation. All these human rights violations need to be addressed if transitional justice processes are to be effective (Duthie 38).
Much attention has been given to return as a durable solution for the displaced. This has been true even in the Sri Lankan context. Government initiatives towards displacement such as the 180 day project focused on return as a durable solution for the displaced. These top-down approaches towards displacement (Badurdeen 2-3) is not always the best or possible solution for the displaced in protracted contexts (Badurdeen 29) as preferences of the displaced vary as in the case of Northern Muslim IDPs in Puttalam District or protracted IDPs from the Tellipallai High Security Zone in Jaffna or Sampur High Security/Economic Zone in Trincomalee. Further, those IDPs who have chosen a particular durable solution such as return, integration or relocation are far from achieving durable solutions in line with the Guiding Principles of Internal Displacement (GPID).
There are various push and pull factors that influence IDP choices on durable solutions in Sri Lanka. These include ownership of land, accumulated assets, social relations, emotional attachments, economic status, availability of resources, levels of assistance for different options of durable solutions and pressure from government officials and political leaders etc. The context can be further complicated for protracted IDPs who see choices differently due to their prolonged stay in the place of refuge and looks forth for a choice if a mixed option (Badurdeen 30). Ferris highlights that IDP settlement preferences vary based on their personal or family experiences, traumatic experiences or circumstances of war. Hence some may not return due to such experiences and may prefer to integrate. Even if they do return, their reintegration process is not facilitated nor their past atrocities faced are not addressed, nor compensated resulting in vulnerability to abuse if they do return and bringing within them the feeling that they have suffered injustice (3-6).
The term reintegration is often associated to return, as the displaced have to be reintegrated into their respective communities. As highlighted in Gunerathna and Badurdeen in their case study from two villages in North (Allaipiddy) and North East (Karukamuani) in Sri Lanka, reintegration was a long term process in which returnees need to be incorporated within the social, political, economic and cultural aspects of their communities if their rights are to be addressed and reconciliation to take place (17-18).
Restitution of property and reparations are central issues for the displaced who are longing for durable solution (Ferris 8). Reparations can facilitate integration and re-integration into their respective communities thereby enabling sustainability of the integration/re-integration process. This can be in the form of property restitution, compensation and other benefits that can help rebuild their livelihoods (Cantor 4-5). The International Organization of Migration (IOM), highlights the importance of reparation programmes in attaining durable solutions for the displaced mainly in the context of facilitating voluntary return. Reparations have the ability to provide material remedies/redress by recognizing the injustices faced by the displaced (Ibid, IOM) as well as increase the range of choices by the displaced in the process of return. This will enable effective re-integration in the place of origin (Gunerathne and Badurdeen 17-18).
In Sri Lanka, the lack of appropriate IDP figures and relevant data of the displaced have complicated the process of reparations mainly in terms of restitution of property. This includes complications in recognizing returnee land deeds – where some don’t have deeds, some have deeds but others have settled in these lands and are registered voters (Charles, P as cited in IRIN 2013). As highlighted by Badurdeen, prior to displacement many of the families in Sampur, Trincomalee were engaged in fishing as their livelihood. Today, with the restrictions they were engaged in farming in government lands. Some families who received land did not have enough land for cultivation as there was an increase in need for land in the area. These displaced families were not comfortable with their new livelihood as less land meant less output and needed assistance in rebuilding their lives (15). This context is an example for the failure for reparation measures by the government of Sri Lanka. Other aspects that hinder the reparation process include the ineffectiveness of policy plans. Even with mechanisms available such as the Rehabilitation of Persons, Properties and Industries Authority (REPPIA), IDPs do not receive adequate compensation for loss of or damage to houses, livestock, livelihood equipment and other assets.
In such contexts, truth commissions can aid in making recommendations on reparations and restitution programmes taking into account the particular needs of the displaced for economic re-integration. The Citizen Commission in Puttalam is commendable in this sense that have taken up the issue of the protracted IDPs of Puttalam District that have resulted in an indepth understanding of the plight of the displaced through the use of narratives where they have looked into the plight of the displaced and also the host communities in terms of resettlement assistance, assistance to the poor host community (Citizen Commission para 3-8).
In cases of mass displacement, like in the last phase of the Sri Lankan conflict, the larger numbers do pose a practical constraint for material reparation. Even in such contexts, there is a need to look into their displaced nature and benefits distributed to the actual needs of the displaced. Further, the benefits need to be tailored to address particular needs. As highlighted by Duthie, collective reparations may be appropriate if reparations may be appropriate if reparations cannot cater on individual basis. While reparations differ from individual to individual basis and is the best, collective reparations can be easily administered based on geographic and community responses (143). Reparations can also play an important role for women, especially for female headed household for their economic wellbeing of their families as in the case of the North and the North East wherein the most of the female headed households as a result of the war resides.
As evident in the above discussions, transitional justice can have a positive contribution to durable solutions by facilitating the processes of integration and reintegration. This involves not only the displaced but also the communities into which they fled and the communities into which they are integrating or reintegrating as in the case of Northern Muslim IDPs in Puttalam or IDPs of Sampur who have lost their lands to HSZ/SEZs. The success of transitional justice processes are dependent on factors such as the actions taken by the government in aiding such processes, the actions taken by the displaced and dynamics of the society wherein all factors of human rights violations of the past are connected. The aspect of gender in transitional justice processes along with effective participation of the displaced is important if it is to remain effective. Transitional justice mechanisms can facilitate durable solutions in the long run. While it is evident that there are significant challenges to be met in addressing durable solutions, acknowledging the link between transitional justice and durable solutions are vital for sustainable post war development.
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