1. Access to justice and the rule of law in humanitarian contexts
Women’s HLP rights are often neglected in humanitarian response
While much attention has been paid to issues related to gender-based violence (GBV) in recent years, violations of socio-economic rights, including HLP rights, have been a neglected aspect of women’s expe- rience of conflict. All too often, women’s HLP rights are violated and abused by the parties to the conflict and their own families and commu- nities. HLP rights are essential for women to survive displacement and recover from conflict as they enable them to secure shelter and a live- lihood. Yet the humanitarian community continues to intervene in ways that fail to take women’s experiences into account, particularly in the area of HLP.
The gap between the law and practice in conflict and post-conflict environments
Despite strong constitutional guarantees of equality and non-discrimination in states such as South Sudan and Afghanistan, in reality displaced women are often unable to assert their HLP rights. As the case studies in the report show, refugee and returnee women are evicted from family homes after divorce; their land is sold by family members or occupied with impunity; they miss out on shelter when it is allocated to male heads of households; and returning widows are denied inherited land. Most importantly, they often have little ability to do anything about it. The hard truth is that despite major investments in justice in conflict-affected and developing countries (US$4.2 billion by OECD-DAC donors in 2009 alone), this has not translated into gains on the ground for many women whose only option for resolving HLP disputes may be local customary and religious authorities.
Inheritance and marital property laws can protect women’s HLP
In the countries where NRC has operations, women’s HLP rights continue to be determined through their relationship with men. As a result, inheritance and marital property laws can provide some of the most important avenues for women to gain independent control and use of HLP. However, humanitarian actors do not often consider the potential of these laws, nor the context in which they can be applied in their programming.
Recognising the significance of religious and customary structures
Customary and religious authorities regulate how disputes over issues such as inheritance, marital property and access to land, are addressed in many countries. Even though customary laws may contradict statutory provisions about equality, displaced women still found customary mechanisms to be the most viable option for resolution of their HLP disputes. Because maintaining social relations is critical for displaced women’s survival, they may be reluctant to seek dispute resolution through adversarial approaches, such as courts. It is therefore crucial for humanitarians to work with, and support women to shape and define customary and religious justice mechanisms. NRC’s experience shows that with the right kind of support, women can be successful in resolving their HLP claims through these forums. Educating customary authorities about statutory and religious laws that support women’s claims is one way to combat discrimination against them.
2. Social norms, poverty and illiteracy impede displaced women´s access to justice
Repressive social norms get in the way
Overwhelmingly, NRC’s studies found that the main obstacles to women’s access to justice for HLP rights are social norms that limit both women’s understanding of their rights and their options for seeking redress when rights are denied. Norms embedded within families, communities and justice structures can perpetuate gender inequality, limiting the extent to which women’s rights are realised in practice. Social norms and traditions can negatively impact the application of sharia provisions that would otherwise support women’s HLP claims, as shown in NRC’s research in Afghanistan, Lebanon and Palestine. Social norms may also be subject to change during conflict, post- conflict and in protracted displacement. In addition, many returnees bring with them new visions of gender roles, often clashing with the traditions of their places of origin. This underscores the importance of engaging with customary authorities to support women as they challenge social norms and demand equality in their HLP rights.
Existing discrimination is exacerbated during displacement
During conflict and displacement, existing patterns of discrimination are exacerbated. Displaced women face multiple discrimination – as women; as refugees; as returnees and IDPs; as members of economically disadvantaged groups and as members of ethnic and/or religious minorities. These layers of discrimination worsen their already precarious ability to access justice.
Displaced women often face impossible choices
Displaced women may face severe consequences for claiming their HLP rights. In the studies, they explained that they can be ostracised and ignored if they claim their land, and may be abandoned by their families. Some societies reject women who ask for their inheritance rights and it can be considered shameful if they make a claim, as shown by the experiences of Palestinian refugee women in Gaza and returnees in Afghanistan. Humanitarian HLP interventions and access to justice programmes often do not adequately take into account the difficult choices and risks that displaced women confront when deciding whether to claim their rights.
Practical barriers resulting from socio-economic disadvantage
Additional barriers result from displaced women’s relative socio- economic disadvantage and can compound their difficulties at every step of the way. For example many women are unable to travel to court; they are unable pay court fees; they do not have their names on HLP documentation; and they are unable to engage in land sector reform interventions. Illiteracy means that women are often left out of key processes relating to the acquisition of land and housing rights. It also prevents them from filing HLP claims in court.
3. Conclusion – challenges and opportunities to support displaced women´s HLP rights
Humanitarian interventions may exacerbate displaced women’s predicament
NRC’s analysis shows that it is essential to recognise that the way in which humanitarians intervene during crises can have lasting conse- quences for recovery, especially for displaced women. Gender can no longer be considered an optional add-on to humanitarian programmes. Equally, the perception that humanitarian actors are, at most, responsible for restoring the pre-conflict status quo is unsustainable. Humanitarians have an obligation to provide rights-based assistance and to promote non-discrimination. However, where humanitarians fail to build an understanding of displaced women’s specific constraints into their operations, they perpetuate gender inequality, for example by allocating assistance to male heads of households, which directly discriminates against displaced women and prevents them from realising their HLP rights.
HLP rights are an opportunity to promote gender equality
Conflict can bring devastation and loss for women. But it can also provide opportunities to promote equality during recovery, when lives are rebuilt, even in protracted displacement. Experience shows that there is a window of opportunity following periods of conflict to intervene in progressive ways that support improvements towards ending discrimination. There is potential to assist women to claim HLP rights after conflict, as they challenge social norms, and their families and communities, to achieve greater equality.