by Rhodri C. Williams
An earlier version of this text was submitted to Forced Migration Review for its newly released Issue 39 on “North Africa and displacement 2011-2012″. The article has been published there in a shorter version. I can recommend the entire, highly topical magazine and am grateful to the editors for their permission to publish the longer version of my piece here.
By post-conflict standards, Libya has a relatively small population of about 70,000 internally displaced persons (IDPs). However, as a result of basic security concerns, many individual IDPs – as well as several entire displaced communities – face the prospect of protracted internal displacement. Despite national and local efforts to foster reconciliation, return will not be a realistic prospect for many until after the national elections currently scheduled for July. Inability to access pre-displacement housing, land and property (HLP) assets poses a significant obstacle to the achievement of durable solutions for almost all IDPs.
However, there is significant variation in the nature of the HLP problem. For households that remain displaced within their own communities due to the wartime destruction of their homes, durable solutions are largely contingent on reconstruction. However, for IDPs displaced outside of their places of origin, inability to access pre-war homes and properties is merely a symptom of the broader insecurity that has blocked virtually all return to date. In most cases, IDPs also face significant tenure insecurity in their current locations, whether they are in collective settlements or private accommodations.
Lurking behind both the tenure insecurity currently facing IDPs and their difficulties accessing pre-war property is a much broader question related to the sweeping and arbitrary redistributions of property undertaken during the forty-two year reign of Libya’s ex-dictator Muammar Ghaddafi. These waves of confiscation and partial compensation undermined the rule of law and sowed the seeds of corruption and legal uncertainty that continue to affect nearly all sectors of society in Libya. While these acts are largely viewed as illegitimate by the interim National Transitional Council (NTC), there is broad recognition that any peremptory attempt to revoke them would risk destabilizing the country.
As a result, these ‘legacy’ property issues are unlikely to be definitively resolved until after the upcoming elections, in the context of democratically-grounded legislative and constitutional reforms. From this perspective, the HLP question in Libya must be seen not only through a humanitarian lens, but also from the perspectives of transitional justice, national reconciliation, rule of law and economic development. While IDPs – and some refugees in Libya – may be disproportionately affected by this question, almost every constituency in the country has a stake in its outcome.
A legacy of legal uncertainty
During Libya’s early history of Ottoman and Italian rule, private property rights were permitted in a civil code-based system in the country’s cities and coastal areas, while the country’s many rural tribal groups continued to administer their land largely according to custom. When Muammar Ghaddafi took power in a 1969 coup, he immediately undertook a nationalization of foreign-owned property and promised redistribution of Libyan-owned property based on the principle that every family was entitled only to enough property to meet its own needs and that those that used or rented property were entitled to ownership of it. Accordingly, with the passage of Law No. 4 in 1978, Ghaddafi transformed all tenants into owners of the homes they rented.
During the subsequent decade, idiosyncratic efforts to regulate and enforce this measure included the 1986 public burning of property records in the main squares of Libya’s towns. Beginning in 1988, attempts began to recreate property registries as well as to respond to popular discontent over Law No. 4 through measures to provide restitution and compensation for confiscated property. These efforts were still underway at the time of the February 2011 uprising. They were accompanied by an early-2000s initiative to build new housing complexes in Libya’s main cities and towns, including some new apartments foreseen as compensation for those dispossessed by Law No. 4. As a result of pervasive corruption few such apartments had been completed by 2011, and the foreign companies hired to build them fled during the uprising, leaving enormous unfinished construction sites behind.
Property relations under the Ghaddafi regime must be seen in the context of a broader hollowing out of the state and the rule of law. While many of Libya’s earlier laws remained in force, state institutions were frequently corrupt and ineffective, and real power tended to be exercised through shadow institutions under the direct control of the Ghaddafi regime. In this context, patronage politics were exercised at the level of entire cities and tribes, with public sector jobs and infrastructure such as hospitals and schools provided as a reward for loyalty and denied to those perceived as disloyal.
In some cases, tribal rivalries were actively encouraged through the relocation of entire tribes to locations that placed them in direct proximity to – and competition with – hostile groups. Many Libyans also complain of the Ghaddafi regime’s apparent practice of granting citizenship on generous terms to migrants from other countries in the region in exchange for these groups’ loyalty to the regime rather than the state. The net effect of these policies was to undermine trust in the rule of law and public institutions generally, as well as to sow grievance at both the household and the community level.
Wartime patterns of displacement
During the course of the uprising in Libya that overthrew Muammar Ghaddafi, a number of cities and towns suffered extensive destruction and several communities were subjected to mass displacement. Early in the uprising, the Western coastal city of Misrata was besieged and indiscriminately shelled by Ghaddafi forces, leading to extensive civilian casualties and destruction of property. Affected civilians fled either to the town center or to other areas in Libya where they could take shelter with their families or tribes.
In August of 2011, Misratan fighters broke the siege and attacked the neighboring town of Tawergha, inhabited by a visible minority population favored by the Ghaddafi regime. Accused of crimes against Misratan civilians including rape during the siege, all 30,000 residents of Tawergha fled and the town was systematically destroyed behind them. The Misratan forces continued to the coastal city of Sirte, where they captured and killed Ghaddafi and inflicted extensive damage on the town itself, destroying as many as 2,000 homes.
At around the same time, the advances of anti-Ghaddafi forces in the Nafusa Mountains south of the capital Tripoli led to the displacement of some 17,000 members of the Mashashya tribe, which was granted land around the town of Al Awiniya by Ghaddafi in the 1970s. Although some members of this tribe were not displaced at the time, they currently remain under threat of expulsion. A further 6,000 members of the Gualish tribe were also displaced from land they had traditionally occupied in an internecine tribal conflict with the Kikla people. A number of smaller and often short-term waves of displacement have resulted from local disputes that have periodically flared up in the south and west of the country.
Broadly speaking, IDPs can be broken down into two main categories, namely (1) those temporarily displaced within their own communities due to the wartime destruction of their homes, primarily in Misrata and Sirte, and (2) large groups or communities displaced and unable to return due to opposition from the communities in their place of origin. The latter groups are clearly of greatest concern and most at risk of finding themselves in situations of protracted displacement.
Unable to return, unable to remain
For communities displaced outside of their areas of origin, property issues remain a subsidiary concern to basic security. In some cases, most notably with regard to the Tawerghan IDP population, ongoing incursions into camps and the arbitrary arrest, detention, torture and even murder of displaced men by armed militias underscore the level of danger associated with any eventual return. In the meantime, while the town of Tawergha has been comprehensively looted and destroyed, there is little evidence of any attempt to occupy or confiscate Tawerghan property.
Nevertheless, HLP issues are of more immediate significance for other groups. The most obvious case involves IDPs from Misrata itself. While the Local Council governing Misrata has announced a return procedure requiring seven neighbors to attest that each returning household did not commit crimes against the city, the failure to prevent threats and attacks against returnees and the risk of arrest for those under suspicion have barred meaningful levels of return to date. A further obstacle is posed by the official allocation of IDPs’ homes to families that stayed in Misrata but whose own homes were destroyed. Such families are entitled to remain until their own homes are reconstructed, meaning that returning families would have to share their homes with strangers.
Misratan IDPs have also alleged widespread looting and squatting, and those that acquired their homes in connection with Law No. 4 fear that their legal rights may be revoked in their absence. Thus, while there is hope that the HLP problem may be at least partially unlocked once families occupying apartments are able to move into reconstructed homes, IDPs whose homes are occupied by squatters or who are suspected of being collaborators (whether rightly or not) face a less clear prospect of safe return.
The return of tribal groups from the Nafusa Mountains remains largely contingent on the willingness of neighboring groups to come to a final settlement involving some degree of re-negotiation of Ghaddafi-era land allocations. Such issues are currently the subject of discussions on return that have also invoked the need for displaced communities to formally apologize for wartime atrocities and hand over alleged war criminals to the state authorities for prosecution. The HLP questions in such settlements are expected to be particularly difficult in cases such as that of the Mashashya in which return would be to land acquired through controversial Ghaddafi-era land grants.
In the meantime, tenure security in sites of displacement poses the greatest immediate HLP issue for IDPs in Libya. The most obvious problems relate to IDP camps, which have typically been established on the sites of half-finished construction projects, as well as in public buildings and resort villages. In addition to immediate security issues, such as incursions by armed militias seeking to arrest IDPs suspected of war crimes, the lack of any solid legal basis for occupation of the camps presents clear risks to residents. As a result of this lack of tenure security, IDPs are exposed to frequent threats of eviction that have, in some cases, materialized. IDPs and donors are also prevented from legally undertaking basic improvements to camp areas necessary to ensure conditions of basic adequacy.
Beyond the camps, many IDPs are thought to be living in private accommodation, either with family or friends or in private rental situations. For instance, as many as 80% of the IDPs now residing in the capital, Tripoli, are believed to be outside camps. While little is currently known about the level of tenure security enjoyed by such IDPs, experience from other settings gives rise to concern over the longer term. Unless IDPs in private accommodation are able to meaningfully integrate, and particularly to access employment, they are likely to expend whatever goodwill and resources they currently enjoy, and find themselves facing eviction from their current accommodations without a clear fallback option.
Such tenure security concerns are particularly acute for the category of IDPs that may find themselves in a protracted displacement situation. Until now, many communities have generously accommodated IDPs from other parts of Libya on the assumption that the crisis would be temporary and that they would soon be able to return. However, if the June elections pass without significant return, there is a risk that host communities may begin to lose patience. In addition, pending better security conditions and a process of reviewing Ghaddafi-era construction contracts, domestic and foreign investors may soon begin to take a stronger interest in resuming construction activities in areas currently used as IDP camps.
No solution in sight?
These factors place a significant burden on the TNC and local authorities. On one hand, pushing for significant return measures in advance of the elections poses the risk of aggravating immediate term instability, at least at the local level. On the other hand, continuation of the status quo is likely to result in protracted displacement for some IDP groups. Such an eventuality would militate in favor of steps to facilitate IDPs’ access and secure tenure to homes and land where they find themselves displaced, as a basis for interim or even permanent local integration.
Whatever combination of return and integration-led local strategies is ultimately adopted to resolve internal displacement in Libya, implementation of the right of IDPs to remedies for the loss of their properties will need to be coordinated with broader efforts to come to grips with the Ghaddafi-era legacy of contested property relations, corrupt and punitive patterns of capital investment, and divisive ethnic policies. Given the complex nature of these problems, it is none too soon for humanitarian, development and human rights actors in Libya to consider how such processes can be supported in order to achieve equitable, legitimate and rights-compliant outcomes.