Centre for International Governance and Justice

Reconceiving Refugees and Internally Displaced Persons as

Transitional Justice Actors

Dr Susan Harris-Rimmer

Issues Paper 8

April 2009
RECONCEIVING REFUGEES AND INTERNALLY
DISPLACED PERSONS AS
TRANSITIONAL JUSTICE ACTORS

Dr Susan Harris Rimmer

CENTRE FOR INTERNATIONAL GOVERNANCE

AND JUSTICE ISSUES PAPER NO 7

April 2009
© Centre for International Governance and Justice, Regulatory Institutions Network,
Australian National University 2009

National Library of Australia Cataloguing-in-Publication entry

Rimmer, Susan Harris.

Reconceiving refugees and internally displaced persons as

transitional justice actors [electronic record] / Susan
Harris Rimmer.

9780980360073 (pdf)

Issues paper (Australian National University. Centre for

International Governance and Justice) ; 8.

Bibliography.

Internally displaced persons--Political activity.

Refugees--Political activity.
Transitional justice.

Australian National University. Centre for International

Governance and Justice.

325.21

If you would like to make any comments on the paper please contact the author at
susan.harris-rimmer@anu.edu.au.
 CIGJ Issues Paper

Dr Susan Harris Rimmer

Reconceiving Refugees and Internally Displaced Persons as Transitional Justice

Actors

Abstract

This paper will explore the idea of whether refugees and internally displaced persons
(IDPs) could or should become actors in the transitional justice processes taking place
in their country of origin. It seeks to engage with the question of how has the
existence of numbers of people in prolonged internal displacement or refugee camps
affected the resolution of the situations that forced them into displacement?

Introduction

I contend that current discussions about transitional justice tend to ignore the issue of
who is included in and excluded from transitional justice decisions, including women,
children, the elderly and disabled, who also make up the majority of displaced persons
and refugees. The 1951 Refugee Convention 1 deliberately excludes all mention of
civil and political rights once a person has attained refugee status, although a person
accorded refugee status thereby holds economic, social and cultural rights such as
housing, education and access to work. 2 Conversely though, the conferral of refugee
status is confined to those individuals who suffer breaches of civil and political
rights. 3 Other motivations for forced migration, such as hunger, lack of education
prospects or generalised oppression, are not recognised grounds for refugee status.

Against this asymmetric refugee law backdrop, I argue that new research is needed to
foreground the ethics of if, how, and when the international community could include

1
Convention relating to the Status of Refugees, adopted on 28 July 1951, as amended by the 1967
Protocol. See Articles 17 to 24.
2
Guglielmo Verdirame and Barbara Harrell-Bond (with Zachary Lomo and Hannah Garry). Rights in
Exile: Janus-Faced Humanitarianism. New York, Oxford: Berghahn Books, 2005.
3
Article 1 of the Convention as amended by the 1967 Protocol provides the definition of a refugee as:
a person who owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the country of his former habitual
residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
refugees and IDPs in transitional justice decisions, including constitution drafting,
new parliaments, trials, and truth commissions, but also broader state-building and
governance issues such as legislative agendas, security sector reform, justice sector
reform, national development plans, budgets and so on.

There is no existing study of refugees and IDPs and their relation to transitional
justice, but it could be a rich area of research. I argue innovative programs in refugee
and IDP camps are necessary and could also lead to improved sustainability of peace-
building efforts in the country of origin. The first question to be answered is: do
refugees and IDPs have a right to be consulted about peace agreements in their
country of origin? Populations are often surveyed about their attitudes to transitional
justice options, such as the recent major surveys of Afghans, 4 Ugandans, 5 and
Bosnians; 6 but not one survey has ever asked refugee or IDP populations their views,
even those in neighbouring countries. If there is no right to be consulted, would it be
useful from a practical point of view? Would there be any long-term benefit by
preparing refugees and IDPs to participate in governance decisions in a broader post-
conflict development context?

There are two reasons why such an exercise should be considered, which have
practical and ethical foundations. In practical terms, most would acknowledge that
refugees have a primary interest to be actively involved in processes that improve the
conditions in their countries of origin. Participation is the foundational principle of
most applied research in the development studies field. We know that most refugees
will return to their country of origin at some point, as voluntary repatriation is the
durable solution which still generally benefits the largest number of refugees around
the globe. However, there are still considerable democratic and practical issues to be
examined if a general principle of democratic inclusion to this group while they are
outside the border. This is particularly important when considering caseloads in
protected situations, such as Sri Lanka, the Thai-Burma border, Somalia, Palestine or

4
Afghanistan Independent Human Rights Commission, A Call for Justice - A National Consultation
on past Human Rights Violations in Afghanistan, 25 January 2005. Online. UNHCR Refworld,
available at: http://www.unhcr.org/refworld/docid/47fdfad50.html [accessed 26 February 2009].
5
International Center for Transitional Justice and the Human Rights Center, University of California,
Berkeley, Forgotten Voices: A Population-Based Survey On Attitudes About Peace And Justice In
Northern Uganda, July 2005.
6
Stephan Parmentier, Restorative Justice: exploring the missing link between transitional justice and
peace-building, RegNet Seminar, ANU, Canberra , 23 September 2008.
Pakistan. Moreover, from a moral or human rights viewpoint, refugees and IDPs
represent a cohort that have been most adversely affected by the conflict and therefore
deserve to be consulted. We also know that women, children and the elderly comprise
80 percent of a ‘normal’ refugee population, and so there is an equity question at the
heart of this issue.

One challenge for any such engagement, similar to refugees seeking to participate in
elections in the home country, is that the refugee would need to forego their
anonymity and expose the fact that they have sought refuge elsewhere. This makes
refugees sometimes reluctant to engage as the lack of transitional justice is the very
reasons they continue to fear return. Is there a way around this problem? Could
training and participation in transitional justice processes, or even designing them for
future opportunities be something of great value to those in protracted situations, such
as on the Thai-Burma border, or could such activities be destabilising? For IDPs there
is a clear link to human rights obligations to allow participation of citizens in political
processes. Better research could help overcome some of these challenges.

A useful point of entry to this discussion is the case study of the Timorese Truth
Commission, which had a unique ‘reception’ function. There were some serious
difficulties reconciling the desire to bring refugees from West Timor home, with the
legal demands for exclusion screening of militia from the camps. There was a heavily
gendered impact in that exercise that went largely unnoticed. There were also
significant numbers of Timorese granted refuge in third countries since 1975. I argue
that transitional justice processes where there has been significant displacement of the
population must tailor their operation to reflect the needs of that population. This
seems straight-forward but in fact has been extremely difficult in the Timorese
context.

Case study: The CAVR and displaced persons

East Timor's Commission for Reception, Truth and Reconciliation (CAVR) was
established in 2001 as an independent authority with a mandate to investigate
violations of international law from 1974 to 1999. The Final Report entitled Chega!
(‘Enough’ in Portuguese) was released in 2006. 7 The CAVR had three core

7
Commission for Reception, Truth and Reconciliation (CAVR). Chega! Final Report of the
Commission for Reception, Truth and Reconciliation. Dili: Commission for Reception, Truth and
Reconciliation, 2005.
programmes: truth-seeking, community reconciliation, and reception and victim
support. A novel aspect of the CAVR mandate compared to most truth commissions
was to focus on the reception of up to 85 thousand refugees from West Timor (part of
Indonesia), displaced or forcibly deported during the 1999 violence, especially during
the month of September. The UN found that most of these refugees were forcibly
evacuated by armed militia and Indonesian troops. The approximately 250,000
refugees who fled or were forcibly evacuated to West Timor were accommodated in
several large refugee camps, such as Noelbaki, Tuapukan and Naibonat in Kupang,
two camps in Kefamenanu as well as about 200 other smaller camps or shelters. They
represented about one third of East Timor’s population at the time. 8

Proper exclusion interviews were never conducted under the 1951 Refugee
Convention by the UN refugee agency UNHCR, 9 which may have prevented those
individuals who had committed war crimes from being considered refugees deserving
of protection in West Timor at all. This is only barely acknowledged in the
acolhimento section of the Chega! Report (roughly translated as ‘reception’).

The ‘reception’ function of the CAVR

The UN refugee agency UNHCR had a presence in Kupang from May 1999 to try to
provide emergency relief and protection to the refugees, and coordinate returnees to
East Timor. 10 UNHCR’s efforts were hampered by Indonesian soldiers and East
Timorese militia, who tightly controlled the refugees’ movement in and out of these
camps, as well as their access to humanitarian aid. 11 Conditions in the camps were
very difficult, both in terms of living standards and human rights standards. 12
Refugees returned to East Timor in phases, with 60 000 still remaining when the
CAVR began its mandate in 2002. Many had been supporters of integration before

8
Chris Dolan, Judith Large and Naoko Obi, Evaluation of UNHCR’s repatriation and reintegration
programme in East Timor,1999-2003, EPAU/2004/02, February 2004, p. 1 and 88.
9
1951 Convention relating to the Status of Refugees, 189 U.N.T.S. 150, entered into force April 22,
1954, as amended by the 1967 Protocol 606 U.N.T.S. 267.
10
United Nations High Commissioner for Human Rights, ‘UNHCR News, Timor Emergency Update’,
25 November 1999. Of the 110,000 initial returns in late 1999, over 65,000 were reportedly
spontaneous, the rest assisted by UNHCR. The mandate of UNHCR is contained in the Statute of the
Office of the United Nations High Commissioner for Refugees, Annex to UNGA Res. 428(V), 14 Dec.
1950.
11
Extracted from Commission for Reception, Truth and Reconciliation (CAVR). Chega! Final Report
of the Commission for Reception, Truth and Reconciliation. Dili: Commission for Reception, Truth
and Reconciliation, 2005, Part 10, p. 6. See also ‘Indonesia: UNHCR Asks Government to Control
Militias’, Refugees Daily, 10 November 1999.
12
Human Rights Watch, Indonesia/ East Timor: Forced Expulsions to West Timor and the Refugee
Crisis Vol. 11, No. 7 (c), December 1999.
the Popular Consultation and some had been active members of the militia in their
communities.

After the referendum violence, then President Xanana Gusmão felt that the first
priority should be securing East Timor’s stability and literally rebuilding the new
nation, which required the majority of the population in the West Timor camps
(including the former militia leaders) to return. Gusmão believed the former militias
would pose less of a threat back in Timor. 13 While there were debates about this
strategy, in the end militia were encouraged to return with the understanding that
those responsible for serious crimes would be prosecuted at a later date once the
judicial system was up and running. UNTAET’s Chief of Staff, in close co-operation
with Xanana Gusmão, and with the full endorsement of the Special Representative of
the Secretary General, took the lead on pursuing this approach from October 2000
onwards. Some of Gusmão’s strategies, notably the ‘wining and dining’ of militia
leaders in expensive Dili restaurants, were controversial within various parts of the
UN mission. 14

The problem was that some of these militia were almost certainly involved with
violence and forced deportations during 1999 and ongoing violations of women and
children in West Timor camps. The head of the UNHCR office Bernard Kerblat
informed the world that refugees were in ‘a hostage-like situation, with women and
children tightly controlled by extremist elements’. 15 The most well-known example
of a person in this situation was Juliana dos Santos, kidnapped as a ‘war prize’ at age
16 by Igidio Mnanek, the deputy leader of the notorious Laksaur militia after a
massacre in the Suai church. Under the 1951 Refugee Convention, persons who fulfil
the definition of a refugee under Article 1A can be excluded from that status if there
are serious reasons that person could be found ‘not deserving of international
protection’ under Article 1F. These reasons include having committed war crimes or
crimes against humanity, serious non-political crimes, or acts contrary to the purposes

13
Fabrizio Hochschild, 'It is better to leave, we can't protect you': Flight in the first months of the
United Nations Transitional Administrations in Kosovo and East Timor. (2004) Journal of Refugee
Studies 17 (3):286-300.
14
Chris Dolan, Judith Large and Naoko Obi, Evaluation of UNHCR’s repatriation and reintegration
programme in East Timor,1999-2003, EPAU/2004/02, February 2004, p. 1 and 88.
15
Victoria Brittain, ‘Traumatised Timorese Women’, The Guardian, Dili, 30 July 2001.
and principles of the UN. 16 Armed combatants are meant to be separated from
civilian asylum-seekers.17

However, one of the reasons the full extent of the treatment of women in the camps is
not known, not even by the CAVR process, is due to this political policy of
encouraging returns, even of excludable militia. Even where protection interviews
were undertaken, UNHCR focused on a very gendered idea of ‘protection needs’. As
the guidelines for the reception of returnees from West Timor indicated, ‘Persons who
might face protection problems are: those suspected of past criminal militia activities,
those formerly affiliated to militia groups, persons who were active in the pro-
autonomy movement, former TNI, former POLRI, former civil servants, persons
belong to an ethnic or religious minority group or persons married to such a person’.18
Most of these criteria were assumed to apply principally to men, and there were
relatively few female interviewers. 19

The UNHCR evaluation report states:

The structure of the assessment forms and the assumptions which framed
them, the gender of the interviewers and their lack of training all meant that a
number of issues relating to women’s and children’s needs and
vulnerabilities – which would have been much more relevant to the majority
of returnees - were not picked up in any systematic fashion. This was despite
reports that sexual violence was a serious concern in the camps in West
Timor. ‘The emphasis on identifying such militia involvement in the
assessment process thus seems disproportionate’. 20

16
UNHCR Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of
the 1951 Convention relating to the Status of Refugees, HCR/GIP/03/05, 4 September 2003.
17
According to international standards governing the protection and assistance for refugees, the strictly
civilian and humanitarian nature of refugee camps and settlements must be upheld in order to preserve
the peaceful character of asylum. These principles are clearly stipulated in various UNHCR Executive
Committee (ExCom) Conclusions, including the Conclusion on Safeguarding Asylum, No. 82, (1997),
para d (vii), which reiterates ‘the responsibility of host States, working, where appropriate, with
international organizations, to identify and separate any armed or military elements from refugee
populations, and to settle refugees in secure locations at a reasonable distance, to the extent possible,
from the frontier of the country of origin, with a view to safeguarding the peaceful nature of asylum.’
18
Chris Dolan, Judith Large and Naoko Obi, Evaluation of UNHCR’s repatriation and reintegration
programme in East Timor,1999-2003, EPAU/2004/02, February 2004, at p. 32.
19
Chris Dolan, Judith Large and Naoko Obi, ibid, at p. 1 and p. 88.
20
Chris Dolan, Judith Large and Naoko Obi, ibid.
Impact on participation in transitional justice process

This had a negative impact on the ability of women in particular to participate in the
CAVR process. Chapter 7.7 of the report by the CAVR recorded 853 cases of sexual
violence but concluded:

[t]he Commission notes the inevitable conclusion that many victims of

sexual violations did not come forward to report them to the Commission.
Reasons for under-reporting include death of victims and witnesses
(especially for earlier periods of the conflict), victims who may be outside
Timor-Leste (especially in West Timor), the painful and very personal nature
of the experiences, and the fear of social or family humiliation or rejection if
their experiences are known publicly. These strong reasons for under-
reporting and the fact that 853 cases of rape and sexual slavery, along with
evidence from about another 200 interviews were recorded lead the
Commission to the finding that the total number of sexual violations is likely
to be several times higher than the number of cases reported. The
Commission estimates that the number of women who were subjected to
serious sexual violations by members of the Indonesian security forces
numbers in the thousands, rather than hundreds. 21

In the camps in West Timor where tens of thousands of women were forcibly
deported, a fact-finding team in one study alone found 163 different cases of violence
against 119 women, and noted serious impacts of sexual violence on women’s
health. 22 The Chega! Report is almost silent on this larger context, but adds that the
attitudes of female refugees to voluntary return and reconciliation issues were also not
well known. At paragraphs 71-72 of Part 10, the Chega! Report states:

Women were especially constrained in their freedom to engage with the

NGO Coalition by the power structures that existed within the camps. The
positions women took on reconciliation and repatriation were almost entirely
determined by their husbands, fathers and uncles who had brought them to
West Timor. They were economically and physically dependent on these
male figures, who often both intimidated them and acted as their ultimate
protection from other men. 23

21
Commission for Reception, Truth and Reconciliation (CAVR), ibid.
22 Tim Kemanusiaan Timor Barat, ‘Violence against IDP/refugee women – Report of TKTB (Tim
Kemanusiaan Timor Barat) findings in IDP/Refugee Camps in West Timor’, August 2000.
23
Commission for Reception, Truth and Reconciliation (CAVR). Chega! Final Report of the
Commission for Reception, Truth and Reconciliation. Dili: Commission for Reception, Truth and
Reconciliation, 2005, Part 10, p. 17.
The combination of the political imperative to receive refugees back from West Timor
by the Timorese leadership, with the gendered application of protection needs by
UNHCR, mean that the violence perpetrated against women in West Timor is still
little known. This context is not acknowledged by the Final Report in its summary of
the ‘reception’ function of the CAVR, although some examples of women returning
from West Timor are included in the reconciliation hearings. 24

This silence was compounded by the finding by the Special Panels in 2001 that the
serious crimes process had no jurisdiction over crimes committed in West Timor. The
situation of refugees in West Timor represented almost a complete failure of
international protection, but also had consequences for the integrity of the transitional
justice process. The UN itself became a victim in West Timor when several UNHCR
staff were murdered in Atambua in September 2000, leading to the complete
withdrawal of humanitarian actors. 25

Conclusion

Where there has been significant displacement of the population, in theory states
should tailor their transitional justice processes to reflect the needs of that population.
However, this has rarely occurred and did not occur in Timor. 26 UNHCR does take
an interest in rule of law and transitional justice issues but they are not part of its core
mandate of refugee protection. 27 The new UN Peacebuilding Commission could play
a role in this process but has not as yet done so. 28

UNHCR also attempts to focus on protecting female refugees from gender-based

violence. 29 In concert with a UN Transitional Administration, one would expect that
this part of the UNHCR mandate would have been easier to fulfil. For a series of

24
Commission for Reception, Truth and Reconciliation (CAVR), ibid, Part 10, p. 23.
25
ABC TV, ‘UN aid workers killed in West Timor’, Lateline, 6 September 2000.
26
See in contrast the Afghanistan Independent Human Rights Commission. A call for Justice:
Conclusion of National Consultation on Transitional Justice in Afghanistan. Kabul: Afghanistan
Independent Human Rights Commission, 2005
27
Steven Wolfson, ‘Refugees and Transitional Justice.’ (2005) Refugee Survey Quarterly 24(4): 55-59.
Senior UNHCR official Erika Feller stated in 2006 that UNHCR has shifted to a ‘responsibility to
protect’ framework, replacing the idea of right of humanitarian intervention in the 1990s:
‘[r]esponsibility should lie on need, not mandates or artificial legal categorisations’.
28
The Commission did consider transitional justice and IDPs in separate Working Group meetings in
2008.
29
See further Alice Edwards, 'Overview of International Standards and Policy on Gender Violence and
Refugees: Progress, Gaps and Continuing Challenges for NGO Advocacy and Campaigning'. Paper
delivered at the Canadian Refugee Council International Refugee Rights Conference, Toronto, Canada,
17-19 June 2006. Amnesty International, AI Index: POL/33/004/2006.
complex operational and political reasons, it was not possible. New research is
required to make it more possible in any future interventions.

This case study of the CAVR highlights the idea that international definitions of
democracy typically take a minimalist or ‘thin’ form in post-conflict societies, simply
associating democracy with regular elections. This forms an inadequate basis for
building democracy in post-conflict societies or pursuing transitional justice
strategies. A principle of ‘democratic inclusion’ can usefully guide attempts to
develop better processes. To test the boundaries of this idea of democratic inclusion,
this paper has conducted an exploration of the difficult case of refugees located
outside transitional justice processes, and what can be done to better address their
needs. However, it is a complex political and legal challenge. It is clear that more
research and thinking has to be done in this area.

Dr Susan Harris Rimmer is a researcher at the Centre for International Governance

and Justice, Regulatory Institutions Network, The Australian National University.
She has previously worked as a Legal/Resettlement Officer for UNHCR Regional
Office in Canberra.