Long-term peace is commonly stated as one of the main objectives of transitional justice processes. The issue of land and property restitution for internally displaced people (IDPs) has increasingly been considered as a most important element in terms of political stability and the prevention of new outbreaks of violence. What are the implications of considering restitution a preferred measure of redress for refugees and displaced peoples in transitional justice processes? The aim of this article is to provide an overview of the right to restitution of land and property from a transitional justice perspective, based on a conceptual clarification of restitution as a form of reparation and a discussion of the implications of restitution for transitional justice policy and implementation.
Keywords: Restitution, Victim Reparations, Transitional Justice
In 2005, the UN Sub-Commission on Human Rights declared in the Pinheiro Principles that restitution of land, housing and property in cases of displacement was a preferred remedy and a human right in international law. This paper argues that the composite legal method behind this claim cannot be sustained in international customary law but neither can a more conservative and beneficiary-based approach that restricts such rights to a narrow group such as refugees. Instead, a context-based legal method makes the most sense of current legal sources. We argue that a right and remedy of restitution for displacement only arises in instances of armed conflict and, to a slightly lesser extent, the removal of indigenous peoples from ancestral lands and systemic and arbitrary eviction, usually carried out by authoritarian regimes on particular discriminatory grounds. Nonetheless, the approach in the Pinheiro Principles is more coherent and morally superior than the status quo in customary international law. The growing acceptance of the Pinheiro Principles should therefore be welcomed subject to refining their scope of application.
* The authors would like to thank the two anonymous referees for comments on an earlier draft and Mayra Gomez for exchanges over the development of the new version.
Keywords: Restitution, International Law, Human Rights, Remedies
Land is identified as one of the core sources of conflict and population displacement in Kenya. The problem is rooted in land policies of continuity adopted by the government at independence, which failed to redress historical land injustices suffered by some African ethnic communities. The emerging Kenyan transitional justice process is a result of the political power-sharing agreement on national accord and reconciliation reached in early 2008 between the main political parties. Its objective is to implement a coherent and far-reaching political and economic reform agenda to address the fundamental root causes of the recurrent conflicts. Among the measures proposed are the establishment of a Truth, Reconciliation and Justice Commission (TJRC) and a National Land Reform Policy, with reparation and restitution as key components. This article analyses the situation of victims of displacement, the transitional justice process and the challenges it faces. It identifies the lack of mechanisms for restitution in both the TJRC and the Land Reform Policy as an obstacle to restitution. Furthermore, as the restitution process moves from the design to implementation stage, other external factors constrain its success.
Keywords: Transitional Justice, Restitution, Land Reform, Land Conflicts, Truth Commission, Historical Injustices, Economic and Social rights.
Setting forth a rights-based land restitution strategy that marries social justice with business, South Africas changing land restitution strategy involves the complex triangle of rights, rural poverty and markets. Tracking the legal claims of five dispossessed communities in Levubu in Limpopo Province, since they were launched in 1997, this article analyses how the South African government balances its responsibility for development and social justice from a rural womens perspective. Since rural womens claims have been lodged as part of group claim it focuses on how the relationship between individual rights and group rights is constituted in laws, policies and practices. It addresses the disjuncture between national gender neutral laws and policies and the gendered outcome of the land restitution process. Towards this end, it explores how government agencies, NGOs and business partners have dealt with structures of power at household and local community levels, and in what ways they are challenging power-holders in these spheres.
* This article is part of the project Land, Water and Poverty which was funded by the Research Council of Norway and the Norwegian Centre for Human Rights South Africa Program, both of which were carried out in cooperation with the Institute for Poverty, Land and Agrarian Studies at the University of the Western Cape. We are particularly grateful to Tshililo Manenzhe, Themba Maluleke and Shirhami Shirinda and Edward Lahiff who assisted in the data collection and as former member of Nkuzi shared with us insights into the work of Nkuzi in the restitution process. We would also like to thank Ruth Hall for her detailed and insightful comments to this article.
Keywords: Land Restitution, South Africa, Women, Individual Rights, Groups Rights, NGOs, Power
This article discusses the relationship between the political regime and changes in the definition, regulation, and enforcement of rural land property rights in Colombia from 2002 to 2010. The article evaluates the mechanisms through which governance arrays and property rights patterns interact in a country that has suffered chronic violence and deep inequality – especially in the countryside – in the last decades. Though some characteristics of the Colombian regime – working checks and balances, political competition – have been instrumental in preventing major disasters for victims and vulnerable sectors, they have also interacted permanently with forces related to coercive appropriation of land. The consequence of this ambiguous outcome is discussed.
* I present here the results of research supported by the Norwegian Centre for Human Rights at the University of Oslo.
Keywords: Property rights, Colombia, Land, Limited Government
Land has been one of the central issues of the Colombian armed conflict since the 1950s. It has been present and addressed in multiple forms, including debates and policies regarding inequality, control over resources, agrarian reform, possession and property rights, forced displacement, land usurpation, agricultural development, etc. Restitution of land and property in terms of victims reparations, is a more recent addition to these debates. Indeed, one of the most recent attempts by the Colombian state to address the issue of land is to include a restitution agenda in the Transitional Justice process initiated in 2005, as a component of the reparations program designed to meet the needs of victims of internal displacement. The aim of this article is to explore how the issue of land restitution has been incorporated in the Colombian transitional justice scheme in order to assess the potential contributions and limitations of transitional justice to a distributive justice agenda. The article is based on an analysis of current developments in the area of land restitution at the National Commission for Reparations and Reconciliation, the institution responsible for the design and oversight of the Colombian transitional justice process.
Keywords: Land Restitution, Transitional Justice, Colombia, Distributive Justice, Victim Reparations