Land Policy and Transitional Justice After Armed Conflicts
Conflict often brings about dynamic changes in land distribution and governance systems. Vulnerable populations are displaced, secondary occupants complicate title, and political elites capitalize on the breakdown of governance to consolidate control over
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Post-conflict land policy has received relatively little attention in the literature on transitional justice.1 While it is clear that land policy plays a role in recovering from the effects of conflict, and ensuring that further conflict does not follow, there is a distinct empirical lacuna on the causal relationship between post-conflict land policy and the promotion of transitional justice objectives such as democratization or redress of human rights violations. Moreover, to the extent that there is a relationship between land policy and transitional justice, the modalities of post-conflict land policy are not necessarily self-evident from heuristic concepts of “transition” or “justice.” This chapter focuses on dynamic changes in land governance systems as a result of armed conflicts and their effect on the modalities of land policy as an instrument of transitional justice. It suggests, in particular, the need for a contextualized “systems” approach to post-conflict land policy as an alternative to rights-based models of property restitution to dispossessed persons. The analysis is limited to cases of armed conflict that gives rise to humanitarian emergencies and assumes a degree of international intervention through
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notable exception is the work of Bernadette Atuahene on South Africa. See, e.g., Bernadette Atuahene, “Property Rights and the Demands of Transformation,” Michigan Journal of International Law 31 (2010); Bernadette Atuahene, “Property and Transitional Justice,” UCLA Law Review Discourse 58 (2010). For a useful discussion urging greater attention to land policy in post-crisis reconstruction efforts, see Michael Kitay, “Land Tenure Issues in Post Conflict Countries” (paper presented at the International Conference on Land Tenure in the Developing World, Capetown, South Africa, January 27–29, 1998), 5.
D. Fitzpatrick (*) ANU College of Law, Australian National University, Canberra, ACT 0200, Australia e-mail: [email protected] A. Fishman NYU School of Law, New York, NY, USA e-mail: [email protected]
D. N. Sharp (ed.), Justice and Economic Violence in Transition, Springer Series in Transitional Justice 5, DOI: 10.1007/978-1-4614-8172-0_10, © Springer Science+Business Media New York 2014
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humanitarian and development agencies.2 Land is a cross-cutting issue after armed conflicts that involves related, if at times temporally distinct, processes of peacekeeping, humanitarian relief, and development assistance.3 This chapter argues that standard division of post-conflict land programming into distinct humanitarian and development phases is not helpful in terms of understanding systemic processes of land governance after episodes of war and population displacement. It is well established that land policy should not involve separate issues of humanitarian responsibility for the safe return of displaced persons and development actor responsibility for their successful reintegration into society.4 Post-conflict land policy involves a continuum from em
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