Diaspora, refugees and IDPs

Transitional justice mechanisms have focused primarily on institutions within national borders and have had limited outreach to populations outside the home country (Mey, 2008; Rimmer, 2010). While the opinions of home country residents about transitional justice options have in certain contexts been solicited, this has rarely been the case for refugees or IDPs (Iyodu, 2012). However, displacement is integrally linked to the human rights violations that transitional justice mechanisms seek to address. Violations such as mass killing, torture and rape can lead to displacement. In addition, violations such as the destruction of homes and property are aimed at preventing people from returning home. Moreover, displacement itself is a rights violation. Displaced people are also often particularly vulnerable to human rights violations (Duthie & Seils, 2016). Truth commissions in Guatemala, Liberia, Sierra Leone and Timor-Leste have examined the role of displacement in conflict and the suffering and stigma endured by the displaced (Duthie & Seils, 2016).

There has been growing interest in and recognition of the importance of involving diasporas, refugees and IDPs in transitional justice (see Haider, 2014). One way refugee and diaspora communities have been involved is in providing input to transitional justice strategies. The Kenyan Truth, Justice and Reconciliation Commission, for example, conducted interviews in 2011 with refugees in camps in Uganda to determine how communities that fled the electoral violence in 2007 could be included in transitional justice processes (Iyodu, 2012). Effective consultation and involvement of diasporas, refugees and IDPs can help frame responses to atrocities in terms of measures of acknowledgement, accountability and redress (Duthie & Seils, 2016).

Transitional justice mechanisms have in various instances specifically incorporated refugee and diaspora communities in their design and implementation. The most comprehensive effort to date to involve diasporas in all aspects of a transitional justice mechanism is the Liberian TRC. Recognising that the Liberian diaspora played a role in starting the civil war and that key witnesses, alleged perpetrators and other conflict actors were known to be among the diaspora, the Commission was mandated to include them in its activities (Young & Park, 2009; Antwi-Boateng, 2012). This resulted in a series of public hearings held in cities overseas with a strong Liberian diaspora presence.

Diaspora communities themselves have mobilised to initiate transitional justice initiatives or to further ongoing processes. In the 1990s, the Haitian diaspora community effectively pushed for the truth commission for Haiti. They created a proposal outlining the parameters for the commission’s activities and lobbied for its implementation. Once the commission was in place, the diaspora participated from abroad, sending written accounts and in some cases coming to testify before the commission (Quinn, 2009). Diasporas have also been active in pushing for justice through trials pursued under universal jurisdiction laws. Universal jurisdiction legislation in various European countries has enabled prosecution for serious human rights violations committed anywhere in the world, particularly where the home country justice system is unable or unwilling to prosecute.

The involvement of conflict-generated diasporas in transitional justice is important in itself, as many will have been victims of human rights violations that the transitional justice mechanism seeks to address (van der Auweraert, 2012). There are various other potential benefits to engaging diasporas, including broadening the diversity of perspectives reflected in transitional justice processes; more comprehensive truth-gathering; greater international awareness; and the potential to address societal divisions within diaspora communities.

Surveying a range of perspectives is important for designing processes and mechanisms that meet the needs of the diverse populations affected by violent conflict. Diaspora members may have different yet meaningful lived experiences and needs that should be expressed in the formulation of policies and operation of transitional justice mechanisms. They may, for instance, have very different views than those remaining in the home country on restitution for loss of property from displacement. The participation of diaspora members can also contribute to more comprehensive gathering of evidence and truth-telling, leading to greater effectiveness of initiatives. Diasporas can also play an important bridging role, engaging in advocacy, outreach and awareness-raising in their host country. The mere involvement of diasporas can attract greater media attention in host countries of transitional justice processes and situations in the home country (Haider, 2014).

Transitional justice processes and mechanisms that incorporate diasporas can have the added benefit of highlighting and addressing divisions in diaspora communities. The Liberian TRC revealed divisions and residual tensions present in many diaspora communities and recommended community reconciliation initiatives to address them (Young & Park, 2009).

Alongside benefits, there are various challenges to engaging diaspora communities. These are related, and involve how to consolidate the varying perspectives of differing communities; possible resentment by home populations of diaspora participation; and lack of coordination between populations in the home country and abroad. In addition, it can be challenging to implement transitional justice mechanisms that span the globe.

A key challenge of diaspora engagement is how to deal with the divergent perspectives and interests of diasporas and populations in the country of origin. The growing independence of some diasporas can lead to pronounced differences (Mey, 2008). The different contexts that diasporas experience living outside the home country may result in diasporas holding more divisive views in some cases, or in others more reconciliatory views than those in the home country. Further, where divisions are prevalent within a diaspora, it would be challenging to address differing views not only between the diaspora and populations at home but also within the diaspora group itself.

Home country populations may also resent input from the diaspora, particularly if they perceive diaspora members as having escaped much of the suffering in the home country and living comfortably in host countries (Smith, 2007; Mey, 2008). Diaspora members may be seen as ‘elite’ representatives, disconnected from the local context and needs of home populations (SPCOP, 2012). Absence of cooperation between the diaspora and the home country can be a challenge to effective transitional justice processes. Cambodian diaspora victims’ associations that have filed lawsuits in Europe against members of the Khmer Rouge did not establish working relationships or contacts with local victims in Cambodia or with local associations that have been gathering testimony for years. This lack of communication and coordination resulted in duplication of efforts and different expectations and perceptions of the process between local victims and the diaspora (Mey, 2008).

There are also various operational and technical challenges in implementing transitional justice processes and mechanisms that aim to extend across several countries. The Property Claims Commission in Iraq, for example, has been unable to process claims made by Iraqis living overseas, given the absence of specific rules and procedures to handle claims from abroad (van der Auweraert, 2012).

Transitional justice actors need to understand the particular issues and concerns that may affect the ability of diasporas, refugees and IDPs to participate in mechanisms. The hearings that the Liberian TRC held in host countries enabled the participation of the Liberian diaspora, particularly those with unsettled immigration status or insufficient resources and those who would have been unwilling to take the physical and emotional journey to the home country to participate (see Haider, 2014). Regular consultation and the inclusion of members of these groups in the administration of such mechanisms would give prominence to such issues (Bradley, 2012).

Support for transitional justice mechanisms from international organisations can also contribute to an engaged diaspora. Involvement by the UN Refugee Agency (UNHCR) beginning from the early stages of forced displacement could facilitate awareness-raising and participation of refugee, IDP and diaspora communities. Although the refugee agency has demonstrated an interest in transitional justice and reconciliation processes, they are not a core part of its mandate (Rimmer, 2010). In order to promote diaspora engagement, UNHCR and other international organisations involved with refugee and diaspora communities should view displaced persons as critical actors and stakeholders in transitional justice and reconciliation processes and move away from ad hoc approaches to their engagement to a more systematic approach (Bradley, 2012). They could develop a focal point for such processes and initiatives and strengthen their capacity to systematically support them (ICTJ Research Unit, 2012).