Shelters of Justice in Displaced Persons Settlements: A Proposal For Rohingya Camps.

• Author: Otis, Louise

Abstract

Hundreds of thousands of Rohingya refugees live in camps in Bangladesh, where their everyday legal needs remain unmet. This article puts forward a front-line justice system aimed at addressing those needs. It proceeds in three steps. First, it reviews the documented legal needs of Rohingya and the current approaches to the administration of justice in displaced persons camps. Second, it examines the model of front-line justice, which rests on the implementation of justice shelters providing legal information, mediation, and safeguard orders. In doing so, it discusses how the confluence of legal traditions in Canada can provide inspiration for a justice system that reflects the legal pluralism prevailing in Rohingya camps and empowers them to build their own justice structures. The second part also reviews the implementation of front-line justice in Mali and Haiti, and the lessons we can draw from these two cases. Building on those lessons, the third part puts forward an adapted front-line justice system tailored to the Rohingyas' legal needs.

Introduction

Natural disasters, armed conflicts, persecution, and other catastrophes have led to unprecedented forced displacements in recent years. Those displacements represent a significant challenge for host states and the international community, who have often responded by confining refugees and migrants to official settlements and unofficial makeshift camps. For example, more than 900,000 Rohingyas currently live in refugee camps in Bangladesh, right across the border from their home country, Myanmar. (1) Life in those camps and similar environments poses many challenges: health risks are increased; food and water are scarce or unhealthy; violence is frequent; and housing is inadequate. Basic needs are left unaddressed, often for long periods of time.

These basic needs also include justice needs. Camps are dynamic communities in which interpersonal tensions inevitably arise, often amplified by a preexisting context of violence. (2) While host states generally provide some security apparatus to the camps, they usually focus on addressing urgent manifestations of violence and controlling movements at the camps' borders. The ordinary justice needs of displaced persons are little more than an afterthought, when they are dealt with at all.

In this article, we argue that host states and the international community can and must do more to address the everyday legal needs of displaced persons living in camps. To that end, we put forward a solution that builds on the model of front-line justice, which rests on the quick deployment of 'justice shelters' providing legal information, mediation services, and safeguard orders when necessary. (3) We argue that this model, which was implemented in Haiti and Mali in response to a natural catastrophe and a civil war, respectively, is well suited to respond to the documented needs of displaced persons living in camps, including Rohingya refugees.

In addressing this topic-and in line with the theme of this special issue-we also reflect on the contribution that the Canadian experience in alternative dispute resolution can make to the administration of justice in other contexts and jurisdictions. Under the inspiration and impulse of Quebec and other provinces, Canada has become an international leader in dispute resolution. In particular, the implementation in 1998 of judicial mediation (also called judge-led mediation) in Quebec contributed to "a new, participant-centered normative order [...] that conceptualizes litigation more broadly and holistically and, thus, offers justice that is fuller and better adapted to the needs of parties with a variety of conflicts". (4) Moreover, the confluence of legal traditions characteristic of Canada can inspire the development of justice structures that are more responsive to situations of legal pluralism. As we argue in this paper, this openness to legal pluralism is particularly important for refugees who find themselves governed by the laws of their host country but continue to rely on their own norms and the laws of their home country to resolve disputes arising among themselves.

This article is divided into three parts. The first one reviews the literature on the justice needs of displaced persons living in camps, including Rohingya refugees living in Bangladesh, and examines current approaches to the administration of justice in those contexts, with a focus on legal empowerment. The second part explains the model of front-line justice and how it contributes to legal empowerment and to the recognition of legal pluralism in camps. The second part also examines how front-line justice has been implemented in Haiti and Mali and draws some important lessons from these two examples. The last part builds on those lessons to adapt front-line justice to the documented reality of Rohingya refugee camps in Bangladesh. Finally, it identifies some potential hurdles that must be anticipated when designing a frontline justice system tailored to displaced persons settlements. (5)

1. Justice in Displaced Persons Camps

   In this first section, we review the main justice needs of displaced persons living in camps (1.1) and we discuss current approaches to the administration of justice in that context, with a focus on legal empowerment (1.2). Before we turn to these points, a brief clarification of the notion of "displaced persons" is in order.

   "Displaced persons" is an umbrella term which encompasses internally displaced persons (IDPs) and refugees. Both categories refer to people who were forced to flee their homes for various reasons including armed conflicts, situations of generalized violence, human rights violations, natural disasters, or persecution. (6) However, they remain conceptually distinct because while refugees have crossed an international border and find themselves outside their country of origin, IDPs remain in their home state. (7)

   This difference is important for the administration of justice in camps because it determines the official law that applies to displaced persons. While IDPs remain under the jurisdiction of their home state and subject to its laws (even when they face persecution at the hands of that same state), refugees become subject to the laws of the country in which they find themselves following their displacement. (8) In both cases, international instruments guarantee some basic rights, including free access to the courts, but those protections often remain theoretical. (9) These considerations and the difference between IDPs and refugees must be considered when designing justice institutions for displaced persons camps. Having made that clarification, we turn to a review of their everyday justice needs.

   1.1 Justice Needs in Displaced Persons Camps

   1.1.1 Main Justice Needs

   This article focuses on everyday justice needs arising within camps. These needs are distinct from other types of legal issues, for example claims against the host state or claims stemming from the underlying displacement, although these types of disputes can be interrelated and generate everyday justice needs in the camps. Any claims against the host state must be brought before that state's justice system-which is however often difficult to access for refugees-and claims related to the displacement, which pertain for example to human rights abuses suffered in a refugee's home state, are usually best addressed by other solutions such as transitional justice mechanisms, which have been relatively successful in some contexts and are already discussed at length in the literature. (10) Although these two types of legal issues are critically important for displaced persons, this paper focuses instead on everyday legal issues which arise within the camps, among its residents.

   These everyday justice needs usually coalesce around four main areas of concern: (1) sexual and gender-based violence (SGBV); (2) land and property-related disputes, including theft; (3) human rights violations; and (4) discrimination, although this fourth category overlaps with the others. (11) These four categories are not unique to the context of camps, nor are they the only legal needs that arise in camps, but they have been identified as the main everyday justice issues arising in that context. It is worth discussing them in greater detail.

   First, SGBV issues are particularly prevalent. They include rape and defilement, to which youth and female refugees are frequently exposed, (12) but also "forced and/or early (child) marriage; abuse by authorities, including physical abuse; sexual exploitation; sexual assault; other inappropriate sexual behaviour, indecent acts and sexual harassment; incest; abductions or kidnapping (especially of girls and women); trafficking of women and girls; forced prostitution; and disappearances of women and girls". (13) SGBV issues are even more pressing considering their systemic underreporting (14) and the fact that they are often compounded by relationship disputes, "including cases of domestic violence but also situations of abandonment [...] and a myriad of other potential problems between couples and families". (15)

   The second category of everyday justice needs arising in camps concerns theft and property disputes. The incidents reported in that category generally range from petty theft to violent robberies, (16) and include land ownership disputes between displaced persons and local residents (although as previously mentioned, this paper does not focus on these types of issues, but instead on disputes arising among camp residents). (17) Connected to these concerns are financial issues including debt disputes between the camps' inhabitants. (18) These incidents are similar to those which occur in any community where money and property are regulated.

   The third area of concern pertains to restrictions and violations of basic human rights. "[Refugees are often subject to a wide...