Access to Justice in Situations of Forced Displacement
From Evidence to Action
“This is a global crisis, not confined to any one part of the world, it affects the most vulnerable people in the world, and it affects both refugees and members of host communities.” – Ambassador Bob Rae, Permanent Representative of Canada to the United Nations
“It is critical to work with peace and development partners to address the needs of forcibly displaced and stateless persons, including their justice needs, and ensure they are included in national systems and development plans.” –Ruvendrini Menikdiwela, Director, United Nations High Commissioner for Refugees, New York Office
More than 100 million people around the world are forcibly displaced as a result of conflict, violence, fear of persecution, and human rights violations. The situation is particularly acute in low and middle-income countries, where over 80 percent of forcibly displaced persons live uprooted for extended periods of time, often for decades. Like everyone else, migrants and forcibly displaced populations have legal issues. Distinctly, however, they often lack access to the resources and support needed to address them.
These challenges, difficult for anyone, become more acute for those with precarious legal status and without access to dispute resolution mechanisms. Many of these individuals live with “hidden” legal problems regarding land rights, employment disputes, or documentation. They often face discrimination when accessing public services and are more likely to be victims of abusive practices and violent crime. Displaced women, for example, face higher risks of sexual and gender-based violence (SGBV) and are less likely to request or receive protection from law enforcement. In crisis-affected settings, the risk of exclusion, discrimination, and the violation of the rights becomes even higher. If these justice problems are left unaddressed, they can turn into chronic sources of insecurity and poverty, including for host communities.
Conversely, when used proactively, justice can be a tool to mitigate and prevent such compounding challenges. In crises, justice and humanitarian issues often overlap as new legal issues arise and existing challenges become more complex. If coordinated effectively, cross-sector efforts can provide a basis for sustainable development.
For the past year, and leveraging cross-sector collaboration, the Center on International Cooperation at New York University and Pathfinders for Peaceful, Just, and Inclusive Societies have brought together humanitarian, development, and justice actors under a new initiative called Justice for Refugees. The aim of this program is to break down disciplinary silos and catalyze collaboration to address the justice needs of displaced populations.
On February 1st, 2023, nearly 100 key stakeholders across the justice and humanitarian sectors came together to discuss access to justice in situations of forced displacement. Remarks were made by an ambassador, a former chief justice, a former minister of justice, a refugee leader, civil society justice leaders, representatives of UN member states, and practitioners in the multilateral sphere. The event was co-hosted with the United Nations High Commission on Refugees (UNHCR), the United Nations Development Programme (UNDP), The Hague Institute for Innovation of Law (HiiL), and the Permanent Missions to the UN of the Government of Canada, the Government of Colombia, and the Kingdom of the Netherlands.
Key Insights for Humanitarian, Justice, and Development Actors
This event offered a number of takeaways for policymakers and practitioners. Coupled with insights from Justice for Refugees’ prior convening, here are 8 key takeaways for those working on access to justice and displacement:
- Policymakers must focus on accessibility — access to justice goes beyond asylum and maintaining justice services. Justice services are inadequate if they are not accessible. In Ethiopia, only 20% of refugees have resolved justice problems. Issues with documentation, access to services, housing, and employment are among the common justice problems displaced populations face. Legal empowerment beyond accompaniment — supporting peoples’ understanding of the law, and their ability to influence it — is key to advancing rights and supporting people to overcome barriers to access. Furthermore, interventions must consider peoples’ experiences and their relationships to institutions. They must be outcome-oriented. One meeting participant highlighted that programmatic interventions should build trust between people and institutions so as to encourage displaced communities to pursue legal recourse when needed (i.e. non-inquiry policies).
- Humanitarian and justice sector stakeholders don’t often meet, but they have much to discuss. Access to justice is key to bridging emergency response and sustainable development outcomes. Likewise, an effective humanitarian response is central to laying the groundwork for access to justice. There are a finite number of fora in which justice and humanitarian actors can bridge silos between their sectors. Actors from these sectors, however, must come together to establish policy responses to displacement that sit across the humanitarian-development-peace nexus.
- Comprehensive data and evidence is the first step to achieving effective people-centered policymaking and programming. Displaced populations face distinct justice challenges. Disaggregated data and evidence allow us to understand those challenges and identify mechanisms to address them in tandem with those faced by host communities and the general population (e.g. justice needs surveys in Ethiopia and Burkina Faso). Data collection can be challenging, but it is necessary. UNHCR and HiiL representatives emphasized that data needs to be outcome-oriented, include refugee and IDP participation, engage host communities, and used to monitor program interventions.
- With justice needs identified, policymakers must look to understand the root cause of the injustices that people face. One panelist emphasized that we must not only understand the needs of displaced populations, but also ask why those needs exist. Bridging the global justice gap requires justice systems to apply a preventative approach. Governments must identify the root causes of injustice and invest in targeted, innovative measures to prevent the exclusion of vulnerable groups from justice systems.
- Displaced populations and host communities must be at the center of data collection, analysis, and use. Policymakers and practitioners must not lose sight of the individuals at the heart of their interventions. Data and documentation must include representation and participation from those whom it will affect the most. Once collected, it should also be “democratized”, one justice expert emphasized, and made accessible to other programmatic actors (in line with data protection laws). Panelists pushed for data to not only be community generated, but also community led. Shift power to refugees; refugee-led organizations (RLOs) should be given center stage.
- To address discrimination, stigma, and division, policymakers must listen to and understand host communities, and build effective narratives. “Justice is indivisible,” said one justice expert. Differential treatment between refugees, IDPs, and host populations can stoke division. Policies should be developed to address the needs of both groups. Displacement is political. These interventions lend themselves to public buy-in and scalability when paired with effective messaging.
- Addressing the justice needs of displaced people and host communities requires greater investment. At the onset of the event, it was highlighted that refugee crises face funding shortages everywhere while also affecting every part of the world. Unfortunately, funding gaps for displacement crises are not new, despite emerging evidence on the dividends of integration. Similarly, justice funding is often a low priority for donors, even though the costs of injustice are high. In recognition of this evidence, donors across the humanitarian and justice sectors should ensure their support is coherent, collaborative, and recognizes common goals between the two sectors. Funding priorities should include investment in data and evidence, legal services and support for displaced communities, and people-centered justice approaches.
- To localize displacement policies, we have to understand capacity constraints and address gaps in services. Most refugee host states lack the economic resources to support displaced communities alongside their own, yet many still choose to integrate migrants and refugees into their countries, and provide them with access to services. As new initiatives are designed by state and non-state partners, they must consider fiscal and bureaucratic constraints at local and national levels.
Addressing the justice needs of displaced populations is an iterative and adaptive process. As one humanitarian expert emphasized, we must: 1) begin by understanding the needs, 2) provide services to meet them, 3) re-evaluate whether the services continue to address the needs of the people, and 4) continue to improve service delivery. Collaboration across the humanitarian-development-peace nexus, with justice as a key component, is essential to effective emergency response, sustained recovery, and lasting solutions. Taken as a starting point, the recommendations presented here offer parameters for effective interventions. This is just the beginning, however. CIC and Pathfinders’ Justice for Refugees initiative will continue to bring together justice, humanitarian, and development actors to facilitate coordinated policymaking through thematic convenings and targeted meetings.