From National Responsibility to Response – Part II: IDPs’ Housing, Land and Property Rights

by Elizabeth Ferris, Erin Mooney and Chareen Stark

This post continues our discussion of the study entitled “From Responsibility to Response: Assessing National Response to Internal Displacement” recently released by the Brookings-LSE Project on Internal Displacement.

Addressing housing, land, and property (HLP) issues is a key component of national responsibility. Principle 29 of the non-binding but widely accepted Guiding Principles on Internal Displacement emphasizes that competent authorities have a duty to assist IDPs to recover their property and possessions or, when recovery is not possible, to obtain appropriate compensation or another form of just reparation.

The 2005 Framework for National Responsibility - which set the benchmarks we applied in our current study – reaffirms this responsibility (in Benchmark 10, “support durable solutions”) and flags a number of the challenges that often arise, such as IDPs’ lack of formal title or other documentary evidence of land and property ownership; the destruction of any such records due to conflict or natural disaster; and discrimination against women in laws and customs regulating property ownership and inheritance.  The Framework for National Responsibility stresses that, “Government authorities should anticipate these problems and address them in line with international human rights standards and in an equitable and non-discriminatory manner.”

The extent to which a government has safeguarded HLP rights, including by assisting IDPs to recover their housing, land, and property thus was among the indicators by which we evaluated the efforts of each of the 15 governments examined in our study. Our findings emphasized the importance of both an adequate legal and policy framework for addressing displacement related HLP issues and the role that bodies charged with adjudication and monitoring can play in ensuring implementation.

Upcoming guest postings by the Brookings-LSE Project on Internal Displacement

by Rhodri C. Williams

Rounding out a run of guest-posting announcements, I am very pleased to introduce an upcoming set of contributions by the Brookings-LSE Project on Internal Displacement. For those of you not familiar with the Project, it is a small unit within the Brookings Institution’s Foreign Policy section that has not only played an outsized role in promoting effective responses to internal displacement, but also in laying the ground for rights-based approaches to humanitarian crises at a broader level.

The Project has been closely associated with the mandate of the UN Special Rapporteur tasked with advising on the human rights of internally displaced persons (IDPs) since 1992 (formally in the guise of a ‘Representative to the UN Secretary General or ‘RSG’ until 2010).  Thus, the ‘LSE’ component refers to the academic home of the current mandate holder, Chaloka Beyani. This comes after a 2004-2010 period as ‘Brookings-Bern’ in reference to prior mandate-holder Walter Kälin, and earlier stint as ‘Brookings-SAIS’ in association with the first RSG, Francis Deng.

In the interest of full disclosure, I should point out that the opportunity to work with Brookings early and often in my consultancy career not only made that career viable but also helped to expand my horizons tremendously. When the legendary IDP advocate Roberta Cohen plucked me out of obscurity to coordinate the development of a comprehensive manual on national response to internal displacement, I was quickly pushed out of my comfort zone of Balkan restitution issues and began to engage with the entire range of humanitarian, human rights and advocacy issues that still bedevil effective responses to the fundamental vulnerability of losing one’s home.

I am therefore happy to observe that Brookings is still going strong and recently published a raft of publications of both broad, humanitarian interest and more narrow relevance for the housing, land and property (HLP) community. The guest postings scheduled for the next weeks will feature a number of these.

First, Elizabeth Ferris, Brookings Project Co-Director, and her collaborators Erin Mooney and Chareen Stark will present their recent report From Responsibility to Response: Assessing National Approaches to Internal Displacement. The report builds on an assessment of the implementation of the non-binding but seminal UN Guiding Principles on Internal Displacement in fifteen of the world’s countries “most affected by internal displacement due to conflict, generalized violence and human rights violations”. The authors not only review the general conclusions of the report but also elaborate some of the most important findings related to HLP issues in internal displacement settings.

Second, Roberto Vidal, law professor at the Javeriana University of Bogota, will be writing on property-related themes related to his extensive recent work with the Project. And, third, authors Yulia Gureyeva-Aliyeva and Tabib Huseynov will be writing on their recent Brookings report “Can You Be an IDP for Twenty Years?” A Comparative Field Study on the Protection Needs and Attitudes Toward Displacement Among IDPs and Host Communities in Azerbaijan. While numerous HLP issues arise in relation to protracted displacement in Azerbaijan, some of the most difficult reflect tensions between IDPs and host communities and have been litigated as far as the European Court of Human Rights in Strasbourg:

At the time of displacement many IDPs in urban and rural areas arbitrarily seized houses and land, which belonged (or were assigned later) to local residents. According to executive decrees, IDPs cannot be evicted from their places of residence—even those which they do not legally own—unless they are provided with alternative living arrangements. This has led some homeowners to take their cases all the way to the European Court of Human Rights, which questioned the existing government practices as a violation of property rights.

UPDATE – the following guest-postings have now been published:

- From National Responsibility to Response – Part II: IDPs’ Housing, Land and Property Rights (22 February 2012)

- From National Responsibility to Response – Part I: General Conclusions on IDP Protection (21 February 2012)

Week in links – week 44/2011 – restitution in Libya, privatization in Cuba, assimilation in Israel

I’m a little behind this week having been in Cyprus, where I participated in the launch of the paper on property issues I co-wrote with Ayla Gürel for PRIO. The local feedback was very helpful as we are planning to expand the scope of inquiry a bit beyond the fallout of the Demopoulos case in the coming months.

Much of interest from the net this week, including one of the first really good reports on the transitional housing, land and property (HLP) issues in post-revolution Libya from the Guardian. This new article goes well beyond the expensive but relatively tractable reconstruction issues described by BBC last week and enters into the far more fraught territory of what to do about the great transfer of assets that resulted from the Ghaddafi regime’s selective nationalization of property.

Quite a few familiar dilemmas arise, including lurking historical claims (in this case, those of expelled Jews), multiple subsequent purchases by third parties, weak courts, unclear rules, the suspicious 1982 destruction of the land registry, and the fact that the expropriations had (in many cases) a genuinely distributive element, meaning that reversing them would disproportionately worsen the situation of marginalized groups.

In the area of belatedly getting with the times, the New York Times reports that Cuba has now formally adopted a new property law allowing far less restricted transactions in homes than was previously the case (see earlier observations on these developments here). After decades of state control, no one seems to be able to predict where this will go, although some positive economic affects and quick attempts to buy in to the property market by exile Cubans seem like safe bets.

In the area of never getting with the times, the Guardian reports that Israel has proposed a bill to allow the near wholesale resettlement of Bedouin nomads from (what remains of) their traditional territories in the Negev desert to planned new towns. All in the name of modernisation and progress, all undertaken without consulting those affected or paying any heed to the fact that previously forcibly urbanized Bedouins have hardly benefited. Very 1960s. A brief excerpt from the article reads like a compendium of discredited colonial and post-colonial assimilation policies:

Before 1948, the Bedouin tribes lived and grazed their animals on much of the Negev, claiming ancestral rights to the land. In the following decades, the state of Israel took over almost all of the land; the Bedouin lost more than 3,200 land ownership cases in the Israeli courts in the early 1970s, rejected mainly on the grounds there was no proper documentation. Now the Bedouin are claiming ownership of about 5% of the Negev as traditional tribal lands.

Three years ago, the government commissioned a retired judge, Eliezer Goldberg, to make recommendations for dealing with the Bedouin. He advised that many of their villages should be recognised, acknowledging their “general historic ties” to the land.

A committee chaired by the planning policy chief, Ehud Prawer, was tasked with looking at how to implement Goldberg’s recommendations, and proposed the immediate transfer to the state of 50% of the land claimed by the Bedouin, minimal compensation for the remaining land with severe exclusions and the demolition of 35 unrecognised villages. The Bedouin were neither represented on nor consulted by the committee.

As my soapbox is only so big, I’ll leave aside the issue of Israel’s apparently retaliatory expansion of its West Bank settlements this week.

And a last note, the Guardian also reports on the aftermath of the Dale Farm evictions in the UK (see previous WiL)

Housing, land and property issues obstruct integration of IDPs in protracted displacement

by Nadine Walicki

Nadine Walicki is a country analyst and advisor on protracted internal displacement at the Internal Displacement Monitoring Centre (IDMC). As previously reported on TN, the reports referred to below as well as other key relevant documents are available on the IDMC durable solutions web page.

Internally displaced persons (IDPs) live in protracted displacement in some 40 countries. These are situations where solutions to displacement are absent or inadequate and IDPs cannot fully enjoy their rights as a result. Housing, land and property issues are usually central to the resolution of protracted displacement. This applies to the homes IDPs leave behind and the new ones they build after fleeing. Many IDPs have yet to receive a remedy for property lost or destroyed at their place of origin, while they live in substandard housing and struggle to access land in their area of displacement.

In early 2011, displacement experts gathered at an international seminar to discuss the potential of local integration as a solution to protracted displacement. Case studies on local integration of IDPs in Burundi, Colombia, Georgia, Serbia, Sudan (southern) and Uganda were prepared to serve as the basis for the discussion. The result was a Statement of Principles and a compilation of good practices and recommendations, which were recently published in the seminar report. Among other key issues, seminar participants outlined several housing, land and property challenges that obstruct local integration of IDPs in protracted displacement. These include tenure insecurity, lack of effective mechanisms to restore property rights, limited access to land, inadequate housing, as well as lack of legal frameworks and access to justice.

Kyrgyzstan Inquiry Commission – Osh riots resulted in crimes against humanity

by Rhodri C. Williams

The Kyrgyzstan Inquiry Commission set up to examine the violence between ethnic Uzbeks and Kyrgyz that killed nearly 500 people last June in the country’s south has just released its report. Most media attention has been devoted to the fact that the Commission identified the minority Uzbek community as the overwhelming victims of the attack, found evidence of official complicity, and alleged that some of the acts committed may amount to crimes against humanity. However, a number of the Commission’s less prominent findings confirm both the role of property destruction in consolidating the victimization of the Uzbek minority and the need for reparations to address these and other crimes.

Choosing in the absence of choice: Protracted displacement and integration

by Rhodri C. Williams

This week, my blogging is likely to suffer a bit as a result of my participation in a timely and interesting meeting on protracted displacement. The conference – or more accurately, the “Second Expert Seminar on Protracted Internal Displacement” – is supported by a dedicated webpage at IDMC with a good overview of what will be discussed and a useful selection of background documents.

The prior ‘first expert seminar’ in 2007 addressed the problem of protracted internal displacement quite broadly and provided an important service by simply defining it. The definition selected departed somewhat from those proposed in the past for for protracted refugee situations in that it dispensed with minimum durations of displacement or numbers of people affected in favor of focusing on the obstacles posed to internally displaced persons’ (IDPs’) rights and dignity by the sheer fact that prospects for voluntary durable solutions remain indefinitely remote.

The current seminar focuses on local integration as a solution to displacement. As described in my background paper on Serbia, as well as the five other highly informative case-studies commissioned for this meeting, local integration may often be inevitable but is rarely a popular political choice. For instance, in conflict-related displacement situations, integration may be seen by the authorities and even IDPs themselves as undermining policies meant to ensure the reintegration of breakaway regions through mass return.

Restitution gets a fresh chance in Colombia

by Rhodri C. Williams

The Economist has picked up on a positive trend in Colombia, where the new administration of Juan Manuel Santos has issued draft legislation proposing special courts to address the restitution claims of over 3 million internally displaced persons (IDPs) driven from their land over decades of conflict.

The bill incorporates a number of administrative shortcuts in favor of victims that have been proposed by various restitution wonks, including myself in a 2006 presentation for Fundación Ideas Para la Paz and a 2008 analysis for Displacement Solutions (as well as more broadly in the discussion of ‘facilitated procedures’ in Chapter 12 of the 2008 IDP Law and Policy Manual):

On September 7th Mr Santos’s administration published a bill to create special courts to oversee land restitution. It would also reverse the burden of proof, requiring owners to show they acquired land legally and without violence or threats. The aim is to restore 2m hectares to the dispossessed over the next four years. ….

It will not be easy. Some 70% of displaced people hold no formal title, and many worked the land under unwritten sharecropping arrangements, according to Ana Maria Ibáñez, an economist at the University of the Andes in Bogotá. The bill proposes a new land registry based on testimony by the displaced and their neighbours. The broader aim is to formalise land tenure in a country where only 40% of farms have titles and only half have been valued. The registered value of Colombia’s national territory (of 114m hectares) is just $279 billion, of which property in Bogota, the capital, accounts for 40%.

Its low value encourages owners of land to leave much of it fallow or sparsely grazed by a few cows. Juan Camilo Restrepo, the agriculture minister, wants to induce more productive use of land. Almost half the 38.6m hectares devoted to ranching could be used for intensive farming, the ministry reckons. It also wants to turn some fallow or confiscated land over to landless people, as a way to reduce Colombia’s high unemployment rate. A new “peasant-farmer reserve zone” will be created near the Montes de Maria, an area where agribusinesses have been buying land from indebted small farmers at bargain prices. And once land is properly valued it could be duly taxed.

A note of caution is in order as Colombia has been a graveyard of reparations plans in the past. My own report for DS (above) begins by listing ten laws and decrees with provisions on both the narrow issue of property restitution and broader questions of victims’ reparations and land administration reform, most of which remained largely unimplemented. Indeed, the report itself was intended to facilitate a draft Victims’ Law that was launched with great optimism but quickly fell afoul of the politically polarized legislature. However, Santos’ new mandate may provide a conducive atmosphere for passage of the draft law, and if so, the early and serious attention being given to this issue bodes well for its implementation.

Iraq updates its approach to former regime-related land and property claims

by Peter van der Auweraert

Away from the glare of international attention, Iraq continues to work on addressing the former regime’s wrongful confiscations of tens of thousands of properties during its many years in power. Figures are the best way to show to what extent former regime-related land and property claims remain an important issue in Iraq today:

• the Commission for the Resolution of Real Property Disputes (CRRPD), the entity in charge of those claims, has received 159,758 claims (all figures quoted here come for the CRRPD itself and are current as of 18 February of this year);

• 79,349 claims have been resolved at the first instance level, leaving 80,409 claims for which so far no review has taken place (a first instance decision rate of fifty percent is not bad if you keep in mind that the period in which this was achieved include the violent years 2006 and 2007 (for a comprehensive timeline of the war in Iraq, look here);

• the picture darkens somewhat, however, if you look at the total number of final decisions which currently stands at around 43,300 claims, i.e. about 25 percent of the total caseload only. No restitution or payment of compensation takes place before a final decision is taken. So in the eyes of the Iraqi public, its only this final decision number that really matters;

• it is getting into some detail, but there is another figure that is important for a full assessment of the CRRPD process: these figures of resolved claims include 23,170 so-called “annulment decisions” taken in respect of “grossly incomplete claims”. The point is that they took little or no review-time and hence inflate the actual progress (especially since it is unlikely that the 80,409 remaining claims hide another large group of easy claims).

This slow progress has caused quite some discontent with the CRRPD process amongst Iraqi politicians, especially those who represent predominantly Shiite, Kurdish or Turkmen constituencies (most of the claims come from these communities). Feelings are especially strong in Northern Iraq, where land and property claim numbers are high (look here to understand why) and the resolution rate is well below the national average.

Not a big surprise then, that, just before the elections, the Iraqi Parliament voted a new law to overhaul the CRRPD process. This new piece of legislation has been in the works for quite some time: the CRRPD itself presented a first proposal to amend its mandate law almost two years ago (this proposal was followed by an alternative, quite different, proposal from the Prime Minister’s Office). But now that the new law is there, the important question is: will it indeed improve the CRRPD process?

After an initial reading, I would rate the following changes as positive for the process:

• the increase from one to three appeals chambers. This should speed up the appeals process, currently a massive bottleneck. My fear, however, is that it will not speed up things enough (for the why, read the first bullet point under negative changes here below);

• it will now be up to the Judicial Committees to decide whether to return the property or pay compensation, where before it was up to the claimant to choose. If this new provision is applied wisely, it will facilitate the conclusion of complicated cases where restitution was never going to be a feasible option;

• the value date for the calculation of compensation is now no longer the date on which the claim was filed, but the date on which the last valuation was carried out (which is (much) close to time of the first instance decision). A change of valuation date should generally increase compensation amounts, which in turn should facilitate enforcement (anecdotal evidence suggests that enforcement of restitution decisions is patchy, higher compensation may encourage more current occupiers to depart willingly).

• the permanent appointment of the staff and their guaranteed transfer to the Ministry of Finance once the Commission ends its work was apparently included to reduce incentives for the staff to delay the process. I am skeptical that this will result in considerable efficiency gains, but gave it the benefit of doubt and included it here under the positive innovations.

The following list contains changes that are likely to have a negative impact or that, at least in my view, were wrongly omitted from the new law:

• the current practice of automatically appealing against any decision where the interests of the Iraqi State are at stake is now enshrined as an obligation in the law itself. In reality, most decisions concern the Iraqi State, either because it has to return property or because it has to pay out compensation (to give an idea, the current appeals rate for claims in Kirkuk stands around 80 percent, mostly because of appeals against state-related decisions).This practice has been the single most important cause of the slow progress of the CRRPD process. It sends the wrong message to claimants (how does this rhyme with the Iraqi State remedying past wrongs?); is a waste of resources (the vast majority of automatic appeals lead to the approval of the first instance decision); and is likely to continue clogging up the appeals process, notwithstanding the increase to three chambers.

• claimants who felt that they received too little compensation under the CRRPD law, are given the right to apply again for additional compensation. The way this is drafted potentially gives all claimants who received a final compensation decision under the CRRPD the right to obtain additional compensation. Did the CRRPD process really need the re-opening of old cases?

• the law does not introduce a simplified process for dealing with a significant proportion of the claims that are really quite straightforward. I am thinking of claims by previous owners against the Iraqi State for the return of land that is currently not being used by anyone else. This would have been an easy way to decongest the process, and free-up resources for more complicated cases.

For some changes, it is difficult to know what the impact will be:

• the appeals process now falls under the competence of the Federal Cassation Court, where before the CRRPD had its own, separate Cassation Commission. Some Iraqi lawyers I spoke to voiced concern that this would lead to a more restrictive (read less victim-friendly) jurisprudence, but I simply do not know.

• the Commission, while remaining independent, is now institutionally linked to the Parliament rather than the Council of Ministers. Will this change the level of oversight? Difficult to know at this stage.

• a new goal of the law is “to preserve public money and address the imbalance between the interests of the citizens and state interests”. Again, difficult to say, but will this provision result in a less victim-oriented process?

By the way, the new law also abolishes the CRRPD, replacing it with a new commission called the Property Claims Commission (PCC).  It is much less dramatic than it sounds: the PCC will take over the mandate, staff, buildings and administrative structure of the CRRPD. So its more of a name change than anything else (one parliamentarian told me that the reason for adopting a new law and establishing a new commission, rather than making amendments to the existing CRRPD law, was that the changes would have affected more than half of the CRRPD law’s provisions, a proportion considered unacceptable for a simple amendment). This is one change of which we can be sure that it will have little impact on how the remaining land and property claims are dealt with.

More to come on property issues in post-election Iraq

Just a quick update on Sunday evening, at which time it appears that sporadic but significant violence in Iraq was shrugged off, with high turnout throughout the country. Following up on my last post, I should refer readers to an interesting comment in response by Peter van der Auweraert, who pointed out that the law on pre-2003 restitution was amended just before the election – and apparently not in an entirely constructive manner.

For more background, it is worth reading an excellent report on property issues in Iraq by Peter together with Debbie Isser at USIP. And for those who can’t resist the lure of legal prose, the laws leading up to the amendments Peter references include the original regulations by the Coalition Provisional Authority (numbers 4, 8 and 12) as well as the 2006 Iraqi law which continued the process begun under the prior CPA regs while amending their terms considerably. It is the latter law which was apparently recently amended.

Iraq’s next Parliament to inherit unresolved displacement and housing crises

by Rhodri C. Williams

Parliamentary polls in Iraq have gotten off to a bloody start and pre-election controversies over attempts to bar former Baathists from running – as well as ongoing tensions along the boundary with the Kurdish region in the north – do not bode well for stability in the post-election period. However, in its latest overview of internal displacement in Iraq, IDMC issued a timely reminder yesterday that the human consequences of earlier rounds of violence remain unresolved.

For starters, hundreds of thousands of Iraqis remained displaced within Iraq and in neighboring countries as a result of the sectarian violence that exploded after the 2006 bombing of the Al-Askari shrine in Samarra, and one of the main obstacles to durable solutions remains occupation of their homes:

There are significant numbers of unresolved property issues for pre- and post-2006 IDPs. The current extent of secondary displacement is not known, though an estimated 15 per cent of returned IDPs and 56 per cent of repatriated refugees were in 2009 reportedly unable to access their property (UNHCR, December 2009). In September 2008, MoDM reported that almost 3,500 properties were illegally occupied, including houses, flats, other buildings and land, though anecdotal evidence suggests higher rates of secondary occupation. Nearly 36 per cent of IDPs report their property has been destroyed or damaged and 18 per cent that it is being occupied illegally by militias, local residents or other IDPs; many fear harassment should they attempt to reclaim property (UNHCR, December 2009).

Meanwhile, the background to this displacement crisis is a housing crisis of monumental proportions, with some 1.3 million housing units – or just under one-third more than the current nationwide total of 2.8 million – needed in order to meet demand. The NY Times recently reported on the effects of the shortfall in housing, a daily round of “bathroom crises” that loom larger in the lives of many ordinary Iraqis than lustration of Baathists or distribution of oil revenues:

Beneath the grand issues hanging over Iraq, like the coming national elections or the continuing violence, the day-to-day lives of most Iraqis turn on more quotidian concerns: the lack of electricity; the pervasive corruption; and a housing shortage that forces two, three, even four families to live under the same roof.

Finally, an ongoing process of returning property wrongfully confiscated by the Baathist regime before 2003 is likely to constitute a headache not only for the next round of Parliamentarians but the next…and the next…and the next. A statement by Peter van der Auweraert of IOM at a conference on Iraqi displacement last November indicated that even this fairly well-established restitution program will take two decades to complete at current rates of processing.

As Mr. van der Auweraert and other observers have noted, relatively simple reforms could drastically speed both the pre-2003 and post-2006 restitution processes. Moreover, implementation of a National Housing Plan currently under development with input from UN HABITAT could both facilitate restitution in the short term and put paid to the thousands of bathroom crises over the longer view. A pretty tall order for a new Parliament, but a crucial one.