Return and Its Alternatives: International Law, Norms and Practices, and Dilemmas of Ethnocratic Power, Implementation, Justice and Development

By Gerard TOAL

Washington

 

Every conflict is unique and has distinctive features that need to be grasped by those seeking to move the conflicting parties towards reconciliation and recovery. Yet, all contemporary conflicts between warring parties over territory and sovereignty share certain structural characteristics and present similar dilemmas for international actors seeking to alleviate the legacies of suffering and displacement caused by these conflicts. 

1. FORCED DISPLACEMENT: THE BIG PICTURE

1.1 What is Forced Displacement?

In our contemporary world, people are forced to leave their homes for many different reasons: so-called “natural disasters,” economic marginalization, the pull of livelihood opportunities elsewhere, imposed mega development projects (like dam construction) and climatic change events. Though all of these forces can be viewed as forcing people to leave their homes to seek shelter and opportunity elsewhere, the term forced displacement is most commonly used by international organizations and development agencies to refer specifically to the displacement of human populations as a consequence of conflict, violence, and human rights abuses. Shaped by prevalent understandings from the mid-twentieth century, forced displacement is even more narrowly defined by some as displacement driven by fear of persecution. While this definition has its problems (who gets to define ‘fear’ and ‘persecution’?), the term forced displacement is useful as an alternative to the more popular media notion of ‘ethnic cleansing’ because this latter term is usually part of the language of the conflict itself. Like ‘genocide,’ the term ‘ethnic cleansing’ has its importance but we must also recognize that it used by parties to the conflict itself to demonize, polarize and mobilize.

1.2. Definitions: Displaced Persons (DPs): Refugees and Internally Displaced Persons (IDP)

After World War II, the international community slowly began to grapple with the massive problem of population displacement in Europe and develop some categories and agencies to manage it. Article 13 of the 1948 Universal Declaration of Human Rights declared that individuals had the right to move, to leave and return, and reside freely within their own country. Article 14 affirmed a “right to seek and to enjoy in other countries asylum from persecution.” Elaborating upon these minimalist foundations, the United Nations High Commission of Refugees (UNHCR) began work in January 1951. That same year the landmark 1951 Refugee Convention defined a refugee as a person individual who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside his country of 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.” A supplemental 1967 Protocol removed the initial space (Europe only) and time limitations (before 1951 only) that accompanied this definition.

Conceptual limitations remained. The ‘refugee’ was a precise legal subject that did not incorporate all forcefully displaced persons but just those who had crossed an international border into the jurisdiction of another state. Refugees were a salient issue after World War II but the humanitarian challenges thrown up by violent group conflicts, so-called ‘civil wars,’ in the second half of the twentieth century made it abundantly clear that attention need to be devoted to those people who were displaced within the territory of a state. Only after 1991 Gulf War, and conflicts in the wake of the dissolution of the Soviet Union and Yugoslavia, did the United Nations eventually specify ‘internally displaced persons’ (IDPs) as a distinct category. The UN Guiding Principles on Internal Displacement in 1998, an important statement of evolving norms, defined the category thus:  “Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of, or in order to avoid, the effects of armed conflict, situations of generalized violence, violations of human rights, or natural or human-made disasters, and who have not crossed an internationally recognized State border.” Whereas the ‘refugee regime’ is established international law, and gives the UNHCR a clear subject, the ‘IDP regime’ is norm-based and presents a legally nebulous challenge for agencies like the UNHCR. As many have noted, the deployment of these categories can be an aspect of the conflict itself, with certain parties wanting to assert an international border by describing some displaced persons as ‘refugees’ while others resolutely designate them as ‘IDPs.’ The most salient point is that we are dealing with ‘forcefully displaced persons’ and there are a series of legal obligations and norms in place as to how they should be treated. Some of the norms are relatively new and are quite detailed and specific.

1.3. Numbers

The contemporary worldwide statistics of forced displacement underscore how pervasive it is as a human security problem. The latest UNHCR figures estimated a total of 43.3 million forcibly displaced persons uprooted by conflict, violence, persecution, and violations of human rights. Of these, approximately 27.1 million are IDPs and 15.2 million are refugees. Across Europe and Central Asia fifteen countries experience forced displacement: Armenia, Azerbaijan, Bosnia and Herzegovina, Croatia, Cyprus, Georgia, Kyrgyzstan, Kosovo (unrecognized as a state by many), FYR Macedonia, Montenegro, the Russian Federation, Serbia, Turkey, Turkmenistan, and Uzbekistan. In 2009, there were an estimated 2.5 – 2.6 million displaced persons in the region, of which up to 140,000 are refugees and 2.4 million are IDPs.

Forced displacement cases are categorized as either ongoing and immediate or protracted. A series of emergency response funds that international agencies can draw upon are now available to address active displacement situations. This capacity of the international community was evident in the response to the 2008 Georgian-South Ossetian-Russian war, and conflict in Osh in 2010.
Protracted displacement is a situation in which, “the process for finding durable solutions is stalled, and/or IDPs are marginalized as a consequence of violations or a lack of protection of human rights, including economic, social and cultural rights”. The leading protracted displacement situations are Cyprus, which has the highest number of IDPs (22.3%) as a percentage of its total population, Azerbaijan (an estimated 6.7% of the population), and Georgia (5.3%). Not high on the list is Bosnia and Herzegovina which had more than half of its pre-war population of 4.2 million displaced by war in 1992-95 but which has seen the return of over one million persons, about half of this number to situations where returnees became ethnic minority communities. In 2010 Bosnia officially had 113,000 displaced persons. Bosnia-Herzegovina’s experience of return and restitution is complicated and conditioned by many unique aspects of that conflict. For about a decade the country became a laboratory for a grand experiment – a noble human rights cause to its proponents, unwieldy social engineering to its critics – in implementing a returns process tied to property restitution that held out the possibility of “reversing ethnic cleansing”.

1.4. Individual Choice

The 1951 Refugee Convention and the 1998 UN Guiding Principles on Internal Displacement are the two lodestars we need to keep in mind as we think about return and its alternatives in the case of the Karabakh conflict. The first has the status of international law while the second is the codification of many human rights principles that are less firmly established in international law (sometimes called ‘soft law’). The important point to grasp is that both articulate a liberal regime governing forced displacement. At its centre is the displaced person as an individual with the right to make choices about where he or she is to live; and, in emergent norms, as a person with potential property rights. Article 33 of the 1951 Convention articulates the principle of non-refoulement: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

As far as international law is concerned, displaced persons should have three choices: (i) the right to return to their previous place of residence, (ii) the right not to return but to locally integrate in their place of displacement and (iii) to right to resettle in a third location, either as a refugee in a country that accepts them or in a different place than their initial point of displacement. These rights are, of course, aspirational. They are constricted by many elaborations in the international statutes and by more mundane but very real structural constraints involving political economy, power and the conditions that make places potential homes. Basic liberal norms such as freedom of movement may not be possible in certain states, with the Soviet-era propiska system enduring in ways that compromise the rights of citizens in successor states. The right of displaced persons to locally integrate may be stymied and restricted. Resettlement options in a third location may be very limited. Return may desirable but dignified and safe return impossible. Questions of the right to return (and alternatives), in short, need to be considered within the context of broader structural processes of place making in the wake of forced displacement, peacemaking  agreements designed to foster reconciliation, and the implementation of such agreements across the territory of contested regions.

2. AFTER FORCED DISPLACEMENT: THE POST-BELLUM PICTURE ON THE GROUND

2.1 A Model to Understand the Return Context

Any consideration of the question of return (and its alternatives) needs to consider the circumstances of displacement and the new geopolitical order forged at the local level in the wake of displacement. The big picture, in other words, needs to include a strong grasp of the local picture on the ground. Drawing upon my experience in Bosnia-Herzegovina, and using a little imagination to create an ideal type model of past, present and potential future, I want to make the argument that we should understand the question of return within the context of a comprehensive vision of the local geopolitical order. That local geopolitical economy can be said to have four features:Space: a particular arrangement and understanding of the landscape, the state’s territory and its borders.Power: a particular political order and set of institutions of governance.Economy: a prevailing political economy that provides employment and livelihoods for residents. Identity: a particular understanding of history, culture, belonging and memory.

2.2. The Communist Past

At the abstract level, the past contexts in the Balkans and the Caucasus share a common embeddedness in a Communist world ordering. These features included:Space: an elaborate hierarchical system of governance, built upon complex ethno territorial commitments, within a highly centralized federal system that made local borders important but not all determining.Power: a one-party authoritarian state.Economy: a socialist developmentalist state where overall control resided with the state, which organized collective enterprises and factories. Identity: the official institutionalization of various discrete national identities, woven together into a harmonious multiculturalism, with the official subordination of all particularistic national identities to collective myths of brotherly peoples and internationalism.


Figure 1: The Old Order



Figure 2: The New Order: Hardline Ethnocracy2.3 The New Order

War and the forced displacement that accompanied it in the Balkans and Caucasus ushered in a revolution in the political economy of secessionist spaces. With people driven from the land, the economy dislocated, and the landscape despoiled by fighting, a new geopolitical order could be created. It features were the following:Space: a new spatial order organized around exclusive ethno territorial control was made possible. In such an order, borders need to be clearly marked, hardened and securitized. Roads and other transportation links are re-configured to reflect the presence and visibility of the new order. Barriers not bridges are the ascendant spatial form.Power: a new ethnocratic order of power was asserted, and institutions of governance re-configured around a privileged nation in the name of democracy. Economy: with crisis conditions prevailing and so many people driven from their property and businesses, the opportunities for rapid accumulation through dispossession (theft) were abundant to the strongest entrepreneurs of violence. Laws on ‘abandoned property’ gave a legal façade to this dispossession. An inevitably criminalized political economy takes hold as formerly collective public enterprises and goods are privatized in practice if not always in formal terms. Identity: an exclusivist identity becomes ascendant though lip service to older Communist-era multicultural notions of identity may remain as rituals. There is a systematic attempt to erase the cultural and physical presence of the identity of former neighbours (now categorized as foreign enemies, unrooted migrants, and residuals of former empire). Domicide, the deliberate destruction of the markers and evidence of a formerly shared home place, is the new logic. The killing of place is justified as the prelude to its ‘re-birth’ as ersatz copy of an imagined mythic past. Towns, villages and key locations are renamed. Religious buildings are destroyed or re-appropriated into a project to imagine the land as hallowed ground. A new landscape of war memorials is constructed to produce this effect.

2.4 Refuchess: Return and Local Integration as the Continuation of Conflict

In 1994 in the besieged city of Sarajevo an Art Publishing Service collective produced a poster that satirized the ways in which nationalist political parties and militias used displaced persons as pawns in games of competing victimhood and ethnic engineering. Displaced persons are simultaneously valued and devalued by political leaders, placed at the center of discourses on the suffering of the nation while at the same time placed at the margins of society in collective settlement camps and housing complexes with less than adequate conditions. Sometimes they are moved to strategic locations and deeply contested places to constitute demographic blocking lines against potential returns. Displaced persons are symbols of victimhood that too often become victims of symbolic wars waged by antagonistic state leaders or ruling politicians and their domestic opposition. Fear of moving beyond the predictability and manageability of these symbolic political games is undoubtedly one factor that makes the issue of return dangerous to current political leaders.

In any peace agreement, the right of return is likely to be at the center of political debate and contestation. The issue will take on much greater symbolic weight and significance than the actual practicalities, advisability and sustainability of returns. This issue will be a rich field for spoilers in the political process to score symbolic victories and de-legitimate any peace agreement that inevitably is going to have to involve a measure of compromise on the part of the opposing governments.

3. THE FIVE R’s OF POST-CONFLICT: ENVISIONING A PEACE AGREEMENT

3.1 Connecting the Five Rs

The question of return needs to be contextualized within what can be termed the five Rs of post-conflict contexts: reconstruction, restitution, return, reintegration and reconciliation (Figure 3). Each refers to a separate process yet all are linked in ways that need to be understood and carefully conceptualized so distinct modalities of return and alternatives are realized. Reconstruction is an obvious and immediate need in the wake of violent conflict. It usually involves the repair and rebuilding of damaged physical infrastructure: roads, bridges, water systems, electrical networks, hospitals, schools and buildings of all sorts. While the ‘bricks and mortar’ nature of this work makes it appear largely technical and mechanical, choices made in reconstruction significantly impact possibilities for return and alternatives. Given finite resources, should infrastructural repair extend to remote and mountainous hamlets and villages, with limited economic viability? Should resources be concentrated in areas of local integration needs or in ways that promote a status quo ante bellum vision of return? Are there modalities and geographies of reconstruction that can catalyze a returns process?

Restitution is a thorny issue in post-conflict situations but it is increasingly entwined with return in emergent international norms. International experience in the early 1990s with ethnic cleansing in Bosnia-Herzegovina was crucial in advancing this. The moral imperative was to not let the effects of ethnic cleansing stand. UN Security Council Resolution 820 on Bosnia in 1993, for example, declared that “all displaced persons have the right to return in peace to their former homes and should be assisted to do so.” This desire to ‘reverse ethnic cleansing’ upgraded international norms for heretofore return meant only repatriation to one’s country not one’s house. Now return meant domicile return, return to one’s former dwelling, a right subsequently articulated in the General Framework Agreement agreed at Dayton in November 1995. This linkage of restitution and return diffused into codifications of international norms and practices. The Declaration of International Law Principles on Internally Displaced Persons followed the 1998 UN Guiding Principles on Internal Displacement in 2000. In 2005, the United Nations Sub-Commission on the Promotion and Protection of Human Rights adopted the first international standards to address property restitution, the Pinheiro Principles, after the Brazilian diplomat who drafted them. These principles detail the formal institutions and claims procedure norms that are necessary to realize property restitution as a right of displaced persons. Principle 2 states: “All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore as determined by an independent, impartial tribunal.” While restitution and return are linked by the Pinheiro Principles, the right to domicile return, the return of one’s home as property, does not mean that displaced persons are obliged to return to live in the property. Restitution means return of property but not necessarily the return of the former owner. Indeed restitution may be the basis for not returning but pursuing alternatives. A complicating factor with restitution is whether it is extended back in time to cover earlier waves of accumulation by dispossession.
Some peace agreements may have reintegration and reconciliation as normative goals. Neither, however, may be practical or achievable, especially in cases of protracted displacement. Reintegration requires a comprehensive approach to livelihood development in order to make return sustainable. The reintegration of violently ‘unmixed’ and separated communities does not guarantee reconciliation. Evidence from Bosnia indicates that thin forms of reconciliation have developed on the ground but thicker forms of reconciliation, involving consensual narratives on history, war and common loyalty to a polity, are more elusive.



Figure 3: The Five R’s of Post-Conflict Contexts

Evolving norms and practices on returns and restitution aspire to place individual choice at their center. However, individual choice is always constrained by the structures that emerge to address the five Rs specified above. Any framework agreement in the Karabakh case will require implementing and supportive agencies, like the UNHCR and the World Bank. Practices such as those specified in the Pinheiro Principles can depoliticize and approach deeply political and emotional questions technocratically (though the Principles are not above reproach). Alternative schemas that propose collective compensation or population transfer but preclude individualized restitution and/or the choice of return may face difficulties acquiring legitimacy in the international arena. Having said that, there will be considerable buy-in on the part of France, Russia and the United States if they are able to foster a general framework agreement between Armenia and Azerbaijan on a process that has the possibility of working. Prevailing liberal norms and geopolitical pragmatics may collide.

3.2 A General Framework Agreement

Following the same ideal-type modeling, we can outline in very broad terms what any General Framework Agreement chapter on return coming out of the Minsk Group process might look like. First, like Dayton, there will need to be a ‘separation of forces’ chapter (Figure 4). This is by far the largest in Dayton and it set out in great detail the procedures by which opposing armies were to retreat from the prevailing ceasefire line and from what would become the inter-entity boundary line created at Dayton. This is important in that it will most likely create a ‘zone of separation’ (ZOS), which is a demilitarized zone where the commanding authority is the international peacekeeping force. Why this is significant is that this zone can become the first test case location where returns, most likely to uncontested space (see below), could be permitted. The ZOS has many advantages. It is demilitarized space that is, in theory and hopefully in practice, run by a commanding authority that is invested in the idea of getting the returns process going on ground they control. ZOS returns are potentially very significant as symbolic first returns and demonstration cases of how returns are supposed to unfold.

Second, any General Framework Agreement will have a chapter devoted to the question of return. If it is written in a way that is consonant with international norms, it should affirm the right of all individuals to chose what they wish to do: return, locally integrate or move to a third location. The key question is what kind of an incentive and support structure will be created to support returns and/or local integration. Will it tilt towards one or the other? Will the right freely to return include a clause providing restitution of the property rights (including use rights) before the advent of hostilities? Will there be a compensation scheme and, if so, how detailed and attractive (funded) will it be? Annex VII of the Dayton Accords reads as follows:

All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them.
What is significant about this wording is that it provides for the right to repossess your property or be compensated. In practice, few at Dayton expected displaced persons would return – Annex VII also declared the choice not to return, to locally integrate, was also a right – and most nationalists felt that, at most, they could establish a nominal compensation scheme and legalize the wartime order they had established. What actually happened, however, is that the internationals charged with implementing Dayton (after about two years of incoherence) established a structure that prioritized and incentivized what they called ‘minority returns,’ that is returns by displaced persons to places and property where they were now the minority ethnicity. In effect, the ‘compensation’ clause was not funded and therefore not actualized. What was, and it took considerable effort, was the right to get your property back and to do with it what you wanted (although with some initial ambivalence).
Furthermore, local integration as an option was not funded by international reconstruction packages. People had the right to do so but the international community, after some initial ambivalence and not without controversy, generally came to the view that ‘local integration’ consolidated ethnic cleansing, whereas they were interested in reversing ethnic cleansing. This was in keeping with a broader vision that reintegration was necessary for the possibility of reconciliation and peace building in Bosnia.

3.3 Property Restitution and a Property Law Implementation Plan

I mention all this in order to make a basic point. A General Framework Agreement can articulate the general liberal regime of rights accorded to displaced persons. The vital issue, however, is what mechanisms does it put in place to fund return or its alternatives. Which of the rights become primus inter pares by virtue of it receiving a realistic incentive structure for its realization? In the Bosnian case, this was individualized property restitution with the possibility of return. To cut a complicated story short, this involved the Office of the High Representative, the prevailing international civilian authority charged with implementing the Dayton Peace Accords, sweeping aside wartime ‘abandoned property’ laws and imposing a standard legal process on the whole country that could govern property restitution and its implementation. Known as the Property Law Implementation Plan (PLIP) it sought to depoliticize the whole issue of property and return by creating a process wherein people could by re-establish legal title to pre-war property (which included user rights to socially owned apartments), and file a claim for its re-possession (see Figure 4).

Figure 4: The Property Restitution Process in Bosnia (Source: Toal and Dahlman, 2011, p. 241)

3.4 Information Campaigns and Legitimacy

The PLIP put in place a clear sequence of what was to happen when a displaced person acquired their ownership title from the Commission on Real Property Claims (a property records body established under Dayton) or local municipalities. This was quite detailed and required a series of structural supports to make it happen. Crucial was the effort to create a ‘law-governed state,’ one in which the law was made clear to everyone and there was no ambiguity about whose rights came first in terms of property ownership. This required a change in consciousness on the part of those who believed they now owned the property they had occupied or been assigned by local authorities during the war. What seemed permanent was now thrown into question as a new legal order sought to replace the (il-)legitimacy of the one established by war, violence and displacement. In Bosnia, two separate state-level informational campaigns blanketed the country with the clear message: a new property order was coming and it was time to legalize and legitimate one’s choices of return or local integration. To the surprise of some, these campaigns largely worked. Ordinary people grasped that they were living in other people’s homes and that there was a process by which they could acquire title to their old property and decide what to do with it. “Everyone gets their own” was the sentiment. This is not to say there were not resistance, cynicism and skepticism. The PLIP was in certain cases strongly contested and various forms of obstructionism were deployed against it.

Figure 5: Aspects of a General Framework Agreementon Returns

3.5 Return as a Geopolitical Ground Campaign

The UNHCR was charged with organizing the returns process in Bosnia. After some dis-organization, they partnered with the OHR and IFOR and other international development agencies interested in funding a returns process based around minority returns. The mechanism they used for this were Reconstruction and Return Task Forces (RRTF) that brought all of these agencies together in particular regions of Bosnia to plot a return ground campaign. I use the military metaphor deliberately because the strategy of the RRTF was conceived as a strategic campaign to ‘break open’ territory for returns. They were in localities and together they brought local intelligence to bear upon the task of allowing people to realize the choice of returning. Again to cut a long story extremely short, the campaign operated with three prevailing notions of space:
The Zone of Separation (ZOS) that allowed for the possibility of initial ‘break-through’ returns which helped establish it as a fact, and a seeming inevitability to local hardliners. “Uncontested Space Returns” are returns to abandoned villages and towns where there are little more than ruins. In many instances, uncontested space return was to villages that were previously mono-ethnic.“Contested Space Returns”: these were the culmination of the returns process and involved the return of now minorities to towns that had become bastions of ethnoterritorialism and ethnocracy (due variously to their historic mono-ethnicity, wartime suffering, and the settlement of displaced co-ethnics).
The Karabakh conflict has a distinctive settlement and displacement geography that renders these spatial distinctions potentially problematic but also potentially productive (Figure 6). First, an initial agreed deployment of international peacekeepers along the Line of Contact could allow for the creation of a substantial ZOS. This region could then become the test bed for the beginning of a return process. This presents distinctive challenges, however, in the Karabakh case. Should the initial ZOS be symmetrical like it was in Bosnia, a few kilometers in either direction, and then expanding outwards from there? Such a symmetrical ZOS would soon place the question of return to former Armenian villages in Shaumyan (now Goranboy) district and to the easternmost finger regions of Martakert, like Leninavan (Maraga), and Martuni on the agenda. This outcome is almost certain to be divisive in that the smaller array of Armenian return sites are being addressed well before the much larger array of Azerbaijani sites. In addition, Shaumyan’s unique status as a rayon outside the NKAO that was proclaimed part of the de facto Nagorno-Karabakh Republic (NKR hereafter) presents lots of opportunities for spoilers. One way around this, if the ZOS model is to be pursued at all, is to start with a small symmetrical ZOS as a gesture of good faith and confidence building, but then extend it in a phased way into the bulk of the occupied territories.

Second, the many villages and towns destroyed and abandoned in the seven districts that are not part of the former NKAO territory offer clear possibilities for uncontested space returns. In theory, conditions are more favorable for such return than in Bosnia in that these territories are extraneous to the dispute over the status of NK in itself. Fundamental distinctions across these spaces, of course, are likely to be asserted by the parties. Consciousness and prevailing belief are crucial here. Debate over the terms of a potential peace settlement involving return needs to grapple with the parameters of both local and international legitimacy. While international officials may concede that the legitimacy of the status of NK is a matter of dispute and debate, there would appear to be widespread acknowledgement of the illegitimacy of the occupation of land surrounding the disputed enclave (Shaumyan presents a distinctive challenge). Lines of access are likely to be seen as legitimate and reasonable security concerns but occupation of large tracts of territory in the name of “security” and “defensible borders” are not. The degree to which this variable geography of legitimacy is shared or not by the local powers on the ground is a key question in determining the likelihood of freelance spoiling actions should uncontested space returns be considered. Plotting a return process organized around uncontested space returns will have to proceed in a careful phased way, most likely beginning with upgrading transportation routes and infrastructure, then with some village returns and then with returns to the major urban centers like Agdam, Fizuli and Jabrail. Other places, like Kelbajar/Karvachar, Jabrail/Jrakan, Fizuli/Varanda and Leninavan (Maraga) have their own stories with deep symbolic significance for the parties. Controlling return movements in a phased manner will be challenging once the possibility of return is on the table, and expectations are raised.

Third, the most difficult cases are always contested space returns. Shusha and Lachin are likely to be the most difficult locations for any Karabakh return process. Because of its particular symbolic importance as a historical and cultural site in both Armenian and Azerbaijani nationalist discourse, its status as the only large town in the former NKAO where Azerbaijanis lived in as a majority population, and its strategic significance occupying heights above Stepanakert (GRAD missiles fired from Shusha targeted Stepanakert during the earlier part of the war), Shusha presents unique challenges. Lachin’s importance is more strategic as the access corridor between Karabakh and Armenia, and because it is the only site of significant settler movement into the occupied territories since 1994. Like the Brčko-Doboj corridor in north central Bosnia, Lachin/Berdzor and the road to Karabakh is described as a ‘vital artery’ and a ‘lifeline,’ the inevitable organic metaphors erasing the place itself and the rights of its former residents. The residents who have subsequently settled in these places also have legitimate rights and needs but these cannot override those of former residents who may wish to return. A key challenge for any return process will be whether it establishes a mechanism to resolve this clash. Difficult though it is, contested space returns usually require an eviction (to provided proximate alternative accommodation) process as a last resort to handle instances of current residents obdurately occupying the property of former residents (pejoratively referred to as ‘squatters’). The return of Azerbaijanis to Shusha and Lachin is the ultimate challenge for the return process. It will have powerful significance in bringing about reconciliation but, if it happens, it is also likely to be an act of symbolic rather than sustainable return. In what follows I want to outline why I believe this to be the case.

Figure 6: Return as a Phased Geopolitical Ground Campaign

3.6 Contested Space Returns and Liberal Ethnocracy
One of the most interesting things about contemporary Bosnia is how nationalists make claims for legitimacy based on prevailing liberal international orders. Milorad Dodik, elected President of Republika Srpska (RS) in 2010, for example, champions the right of the RS to hold a referendum on independence because other proto-states in the region, like Montenegro and Kosovo, have done so. Dodik also proclaims that Republika Srpska is “not ethnically clean” as a point of legitimacy. The sentiment is “we have allowed returnees and we treat these minorities well, they have no problems, we are a respectable liberal state.” This rhetoric appears to be a far cry from the hard-line ethnocratic sentiments of someone like Radovan Karadžić. Whether it is or not is a matter of debate. Why this is worthy of attention is that we should think about the contours of the new order that gradual return can induce in hard-line secessionist regions (see Figure 7).

Figure 7: Contours of Liberal Ethnocratic Order

What is different about the liberal ethnocratic state is that it is interested in performing as a liberal regime for the international community in order to gain tangible benefits: greater recognition, access to international development funds, markets and products. The sentiment is that “we’ll be pragmatic, without giving up on who we are, if you’ll be pragmatic and accept us.” This has created certain dilemmas for the international community for, in many respects, a liberal ethnocracy is a contradiction in terms: its liberalism is for show but ethnocracy for those who know. Yet it is also an opening for the international community to make initial movement towards the goals it wishes to achieve. The contours of the liberal ethnocracy, then, are open for negotiation to a certain extent. It is still an exclusivist national homeland but there is public recognition that other groups can live there too. It is still an ethnocratic order but there are some consociational arrangements as concessions to other groups. It is still an ethnocratic economy with origins in wartime criminality but some actors are interested in becoming ‘legitimate.’ It still conceives and configures its cultural landscape within exclusivist terms but there is a degree of toleration for other groups to begin to reconstruct their churches, mosques and monuments (i.e. their ‘cultural landscape’). Places may be allowed to have two names, and signage may reflect the presence of culture other than the dominant one. Yet micro political acts of humiliation and vandalism – graffiti, desecration – can also remind minorities who still prevails.

This, to an extent, is Republika Srpska today. Is this a possible portrait of the future NKR? Is there an interest among Karabakh Armenians in getting themselves on the ladder of international legitimacy through an openness to a minimum symbolic return of Azerbaijanis? Is the Azerbaijani state willing to risk moving beyond maximalist rhetoric to meet movement in this direction? Are there grounds for beginning a dialogue on plural cultural landscapes in Karabakh and surrounding regions?

DISPLACED PERSONS AND (NOT) RETURNING HOME

The degree to which there is desire on the part of displaced person to “return home” is an empirical question that varies from case to case. One structural feature of the Azerbaijani displaced is that their status as displaced persons defines their very place and life chances in Azerbaijan. Looking from the outside, this appears to leave them doubly displaced: not only are they displaced from their places of origin but they are also dissociated from the state and society that hosts them. They are permanently in the waiting room, told they are about to return home, yet never presented with conditions where they might be able to exercise some choices about their status, conditions and preferences. What of those displaced from Azerbaijan in Armenia? Are they treated as displaced persons bearing the right to choices about their condition?

Research by anthropologists among displaced persons in Bosnia-Herzegovina and elsewhere has yielded a few important conclusions we would do well to consider. First, consideration of ‘displaced persons’ by both nationalists and many international bodies reveals what some term a ‘sedentary bias’, defined as a tendency to see people in terms of lives in fixed places rather than in terms of a life cycle that involves movement and migration. An uncritical conception of people-in-place seems to prevail over a more complex conception of people-in-motion and in-place. Nationalists want to lock down their displaced persons in the imagined homeland they have bloodily created while human rights officials want to return people to their ‘original homes’ as an affirmation of justice, a restoration of how things were and should be (the status quo ante bellum). What is missing in these default assumptions is a sense that people can and do want to circulate in order to realize their aspirations.

Second, the Belgian anthropologist Stef Jansen has suggested that the overriding goal of displaced persons in Bosnia-Herzegovina is to reduce precariousness in their lives. Having fled the ‘hot ground’ of conflict regions, they are in search of ‘cool ground’ where they can begin to build lives that are predictable and stable. Displaced persons recall not past locations per se but past lives in former locations, the location and life-world creating a remembered sense of home. These issues are not necessarily separated in their minds so one gets ‘myths of home’ which are really memories of times and spaces past. Whether they grasp the fact that the old order (see Figure 1) that sustained these generally positive memories is long gone is an open empirical question. The relevance of this for return is that displaced persons may have created powerful imaginative ‘myths of return’ that are built upon sentimental and nostalgic foundations about ‘home.’ Put differently, displaced persons may operate in a life-world that is radically disconnected from the ‘facts on the ground,’ and the prevailing localized geopolitical order in their former residences. The sharp contrast between an imagined positive past and a grim negative present may also foster deep depression and a variety of psycho-social disorders.

One should not assume this, however. Displaced persons can and do re-imagine home separate from former residential locations. Home is where they can reduce precariousness and build a foundation for the future generation. Displaced persons may be less interested in return than they are in re-creating homes in new places. A property restitution plan as part of a return process may, ironically, help launch a process of returning in order to finally leave and move ahead. The repossession of lost property allows the accumulation of personal assets that can be sold or rented – creating resources to facilitate the process of building home elsewhere. The signal virtue of this process is that it allows displaced persons some active choice in the process of severing ties with a former residence. The process may be far from perfect but it does allow some possibility of personal reconciliation and transition. A key to a former home does not haunt a place of exile. A displaced person chooses to become a person who resolved to migrate.

All of these brief observations are prologue for what I believe is an important point: we should not assume that displaced persons want to ‘return’ to their former houses. To do so is a radical leap of faith on their part, and many do not want to make this leap. A person’s stage in the life-cycle becomes crucial here, with elderly people generally more disposed to returning to the land they know best than young people whose formative experiences have been in displacement. Many may try return but, like good rational actors, will keep their options in their place of displacement alive too. Some will want to have a ‘foot in two locations.’
In trying to promote a productive discourse on return and its alternatives, it should be acknowledged that returnees can never ‘return home.’ Instead, they can:

• Reclaim property to provide resources for remaking home elsewhere;
• Psychologically transition from ‘refugee’ or ‘displaced person’ to a person with choices;
• Assess the prospects for re-making home in a former location or elsewhere;
• Return and then leave again, if return is not sustainable.

A return process can be a positive means of making displaced persons active subjects again, resilient people who make choices rather passive objects who are moved around like pawns. It is not about getting people back to where they used to live; it is about allowing people to become the agents of their own destiny. It is not about the past. It is about the future. This brings us to the question of return and development.

5. OBSTRUCTIONISM, RETURN AND DEVELOPMENT

The difficult challenge for any return process is that it requires a degree of legitimacy not only among governing elites but among the lowest officials on the ground who are charged with facilitating and managing return. For hard-line nationalists embedded in localities after a polarizing and deeply scarring war, the prospect of return can be huge challenge to their worldview. Foreign enemies want to become former neighbors again. What is to prevent them from becoming foreign enemies once more, fifth columnists or vanguards of a re-taking of hard-won territory?

Obstructionism, Hard and SoftObstructionism is a fact of life in return contexts. The key challenge for the international community is to wrap return within a new order of legitimacy. Local power brokers need to be given ownership in some way or they can easily become spoilers and their actions can generate acts of defiance that can have rippling effects.

In Bosnia, the international community had state level power resources, a localized presence, and real power for a period to coerce and remove obstructionist officials. In a number of cases they had to use it for locally embedded hardliners who actively sought to undermine returns. Obstructionism took two broad forms, hard line obstructionism involving some type of physical violence, and soft line obstructionism that tended to be more bureaucratic in nature. Both forms of obstructionism are about ‘the line’ nationalists need, the border between ‘us’ and ‘them.’ Hard line forms seek to very publicly and visibly assert a line between insiders and outsiders whereas soft line forms do so in ways that are stealthy and not publicly visible. The PLIP process and the necessity to produce documents for returnees created the opportunities for bureaucratic obstructionism. Figures 8 and 9 are graphic representation of the spectrum of tactics characterizing obstructionism.


Figure 8: Spectrum of Hard Line Obstructionism


Figure 9: Spectrum of Soft Line Obstructionism

Obstructionism was overcome in Bosnia by the removal of political figures considered behind the acts of violence in hard line obstructionism. Bureaucratic obstructionism was combated by a series of measures: the creation of implementation metrics for PLIP, capacity building grants to allow local authorities to computerize their records and train their staff, the appointment of ‘minority’ officials to the municipal authority staff (part of consociational arrangements), the removal of egregiously obstructionist officials (like the person who used tear up the property repossession forms of aspirant returnees in front of their face). All of these mechanisms require two requirements that I suspect will not be operational in the Karabakh case: (i) localized capacity for international officials to monitor agreed upon compliance rules and (ii) investing them with genuine power, backed up by force if necessary, to remove obstructionists. Given this, I suspect that any contested space returns process in Karabakh itself is unlikely to be anything more than symbolic. Even in Bosnia, where the international community had genuine capacity and power, returns often became little more than symbolic in many (though not all) places.

5.2 Forced Displacement and Development

The World Bank, particularly its Social Development division, has begun to consider how forced displacement creates barriers to but also opportunities for development. The Bank agreed in October 2010 a new Country Partnership Strategy with Azerbaijan that covers lending from 2011 to 2014. One key focus is improving the effectiveness of social and community services, which includes social protection for displaced people. In an important publication Forced Displacement: The Development Challenge, Christensen and Harild (2009) identify four interconnected development challenges that emerge from displacement (Figure 10). Each of these categories has a series of issue areas that I can do no more than briefly enumerate. Together they provide one with a vision of what a comprehensive approach to displacement and return would look like.

Land, Housing and Property The concern here is with the living conditions faced by displaced persons, especially collective centers and the insecurity of housing tenure that afflicts displaced persons. Property restitution is another important concern as is the capacity and effectiveness of current state programs targeted at displaced persons.

Reestablishment of LivelihoodsDisplaced persons, it is recognized, suffer from social isolation and restrictions on their integration into the place of their displacement. Whether in displacement or in conditions of return, displaced persons need to be empowered to establish independent livelihoods for themselves. The Delivery of ServicesThe delivery of state services, like health care and education, to displaced persons is often discriminatory and segregating in its effects. This pattern needs to be broken and the quality of service delivery upgraded. The particularistic needs of displaced persons, especially in the area of psycho-social services, should be recognized and part of any comprehensive vision of service provision requirements.

Accountable and Responsive GovernanceDisplaced persons, as we have already noted, are often treated as passive victims and objects rather than potentially resilient subjects that should be consulted about all aspects of the decisions that concern them. Providing displaced persons with documents and status that do not discriminate and compromise their rights as citizens is the part of a much broader challenge of establishing governance structures that serve populations rather than elite interests or bureaucratic constituencies.

The World Bank’s development challenges apply to both the context of displacement and the contexts of return. Figure 11 is my further elaboration of these categories in a return context, with greater recognition of the difficulties that come from negotiating geopolitical orders established through violence and war than is apparent in World Bank publications. As should be apparent from this table, the challenge of establishing trust in government institutions is central. Since this is already in short supply in both Armenia and Azerbaijan, one cannot hold out great expectations from a return process at this point. The situation in the Caucasus is distinctive from the Balkans in another important way that inhibits the development of trust. The International Criminal Tribunal for the former Yugoslavia (ICTY) has been an imperfect vehicle for justice in Bosnia-Herzegovina but it nevertheless has served a vital role in offering the possibility of accountability for war crimes. Domestic war crimes chambers in Bosnia are also imperfect but they too challenge the notion of impunity for criminal conduct. No equivalent mechanism of accountability and justice exists in the Caucasus. The cost of this absence has already been great and remains a burden on the possibility of reconciliation.


Figure 10: Displacement and Development: Four Challenges


Figure 11: The Comprehensive Dimensions of Return and Development

6. CONCLUSION: RETURN AND ITS ALTERNATIVES

There are three identifiable approaches to the question of ‘return and its alternatives.’ The first approaches the issue according to the logic of the conflict itself as seen from each side. No doubt some hard-line Azerbaijanis view return as a way to win back territories and reclaim lost sovereignty whereas some hard-line Armenians view it as a discourse to be exploited for tactical spoiling activity. Alternatives are worth exploring only as a way to ultimately block return and perpetuate the status quo. Such perspectives are continuations of the conflict and reflect zero-sum conceptions.

A second approach views return and its alternatives as aspects of restorative justice, as part of a necessary exercise in extending international human rights to victims of forced displacement, property dispossession and other serious abuses. This perspective begins from the common humanity of the conflict’s victims and views the conflict not in terms of ethnic categories but legal violations of internationally recognized human rights. Within this perspective we can identify a spectrum of possibilities involving return, restitution and compensation (Figure 12). Choices between these should be available. An official apology and acknowledgement of past abuses is a starting point. Financial compensation is another modality as is restitution linked to a limited return process agreed by the parties. Restitution and reconstruction-driven return to uncontested space is another point on the spectrum, with return to contested space representing perhaps the fullest expression of restorative justice. The difficulty in thinking in terms of a spectrum, however, is that it encourages ‘half-way’ thinking that could limit what should be the unrestricted human right to return to pre-conflict property and choose whether to stay, sell and/or move on.
A third approach is to re-code the whole question of return and its alternatives as aspects of transformative economic development for the region. Return is not simply about restorative justice and conflict resolution but a necessary foundation for the re-establishment of economic linkages, cross border markets and historic trade routes in the region. It is about economic choices. Return is about dealing with the past in order to establish the basis for a more open cosmopolitan future where people, commodities and resources can circulate without concern. Return is an economic development strategy, one that begins to empower individuals in the region to make their own choices about property and where they want to make home.

The challenge is to align these different discourses so that those who fear can perceive gains, displaced persons can begin to obtain justice, and conditions for conflict transformation can be established. Right now the prospects for return may look bleak but there is no other alternative to grasping the nettle of return if the conflict parties are to move beyond the debilitating stalemate of the last 17 years. It is time for serious thinking about return and its alternatives.

Figure 12: Return and its Alternatives as a Spectrum of Restorative Justice

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