Report on property issues and displacement in Libya for UNHCR

by Rhodri C. Williams

Toward Tajoura, March 2012, picture by the author

Many TN readers will be aware that I spent the better part of last Spring working for the UNHCR on a report on housing, land and property (HLP) issues related to displacement in Libya. The research involved interviews with numerous internally displaced persons (IDPs), many of the officials directly or indirectly responsible for their welfare, as well as civil society activists and legal experts. The work was undertaken throughout the north of the country, including Tripoli, Misrata, Benghazi, Sirte, Ajdabiya, Tiji, Nalut, Yefren and Kikla.

The resulting report was published earlier this Fall and includes both immediate term recommendations for humanitarian programming and longer term observations on how the process of seeking durable solutions for Libya’s displaced relates to broader dynamics of transitional justice, rule of law reconstruction and sustainable development. Accordingly, those of you who have read my earlier short piece on HLP issues in Libya will find many of the themes introduced there greatly expanded upon here. 

The report goes into some detail and is not a light read at nearly 100 pages. The Executive Summary is a bit more manageable at 15 pages and closely tracks the four part breakdown of the full paper. However, in order to help TN readers get a quick overview of the main points in the paper, I have further compressed the summary down to about five pages, reprinted just below.

A great deal of credit is due to the UNHCR country office in Libya, and particularly to Senior Protection Officer Samuel Cheung, for recognizing early on the need to understand the nexus between property issues and displacement in Libya. The UNHCR also proved farsighted in providing a mandate not only to examine the humanitarian implications of property disputes, but also to extend the analysis to take in concerns related to transitional justice, rule of law and development.

Since its local release last Fall, the report has supported efforts by both national advocates and international observers to ensure that outstanding property questions in Libya are resolved in accordance with international standards. Such efforts will be crucial to achieving an end to the ongoing and protracted displacement of entire communities collectively punished for their imputed support for the Gaddafi regime, and thereby achieving meaningful national reconciliation.

The report also underscores the need for more research and further analysis in order to ensure that the resolution of HLP issues is based on Libyan realities as well as international standards. There have been some very promising signs on this front, including the inclusion of a study on property and housing issues in a broader project related to strengthening rule of law institutions in Libya run by the Hague Institute of Global Justice, as well as plans to shortly include an updated property rights profile of Libya in USAID’s land tenure country profiles series.

In sum – this paper represents a first stab at a complex issue that is crucial to Libya’s future. I am grateful to the UNHCR for giving me the opportunity to participate in this process and look forward to any comments and feedback from TN readers.

The Kampala Convention on internal displacement in Africa: What does it mean for housing, land and property restitution?

by Mike Asplet and Megan Bradley

Mike Asplet is an attorney currently working with the Brookings-LSE Project on Internal Displacement. Megan Bradley is a Fellow at the Brookings Institution, where she works with the Brookings-LSE Project.

The African Union’s Kampala Convention for the Protection and Assistance of Internally Displaced Persons (IDPs) in Africa will hopefully come into force any day now. When it does, it will be the first regional treaty to comprehensively address the IDP issue, from preventing displacement to providing protection and assistance, and supporting durable solutions. The Kampala Convention represents a critical new tool for tackling some of the largest and most complex IDP situations in the world: some 10 million people are internally displaced across the continent, making up one third of the world’s IDP population.

The treaty reflects well-established normative frameworks, primarily the Guiding Principles on Internal Displacement, which have to date provided the foundation for IDP protection and assistance efforts. However, the Kampala Convention also significantly advances the normative framework on internal displacement in several key areas. These include protection from arbitrary displacement; the responsibilities of the African Union, multinational companies and private security actors; and the right to a remedy for the wrongs associated with displacement, including the loss of housing, land and property (HLP). The question of remedies for lost HLP is particularly important, as land conflict is at the root of many internal displacement flows in Africa, and the resolution of hotly contested land claims represents a key barrier to solutions for thousands of IDPs.

On first glance, it doesn’t seem like the Kampala Convention has much to say about land issues, and in particular the restitution of displaced persons’ lost property. In light of the popularization of the (contested) UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (the so-called “Pinheiro Principles”) and trends such as the now-common practice of explicitly addressing the restoration of displaced persons’ HLP rights in peace treaties, it is striking that there is no reference to restitution in the Kampala Convention. This omission is clearly deliberate. While many provisions from the Guiding Principles have been specifically incorporated into the Kampala Convention (in some places without amendment), the documents diverge considerably in their approach to question of HLP rights, and restitution in particular.

Beyond restitution: New book explores property rights and durable solutions for the displaced

by Anneke Smit

Anneke Smit is Assistant Professor in the Faculty of Law, University of Windsor (Canada), where she teaches Property Law. She has worked on displacement and post-conflict property issues for more than a decade, including in Kosovo with OSCE and in Georgia with a grassroots human rights NGO. She is the author of The Property Rights of Refugees and Internally Displaced Persons: Beyond Restitution, published this year by Routledge.

Recent posts in TN by Roger Duthie and Megan Bradley as well as Rhodri Williams, highlight the importance of transitional justice in bringing displacement to an end and encouraging processes of reconciliation. Yuliya Alieva’s post on the two decades of internal displacement in Azerbaijan is a critical reminder of the intensifying need to consider the full range of durable solutions – local integration and resettlement in addition to return, in particular in protracted displacements. These discussions reinforce the importance of post-conflict housing, land and property (HLP) restitution to contribute to these processes, but they are also reminders of the limitations of the current international legal framework.

Regular readers of this blog will be aware of the enormous strides which have been taken in the last decades with respect to post-conflict HLP restitution. The international legal framework on HLP restitution is since 2005 dominated by the (non-binding) UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (The Pinheiro Principles). Principle 2 of the Pinheiro Principles states in part:

2.1 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[.]

As such, the Principles prioritize restitution “in kind” (or in rem) as the preferred remedy to conflict-related HLP rights deprivations. Other remedies, including but not limited to compensation, are possible but these are clearly subordinated to return of the actual property. Since their inception, the Pinheiro Principles have been discussed and publicized widely. At first, it seemed taboo to criticize the Pinheiro Principles, given the substantial and hard-won contribution they made to a critical area of post-conflict justice and solutions to displacement. Recently, however, it seems the floodgates of criticism have opened.

Rhodri’s recent blog post on the UN high level rule of law meeting alluded to the place of HLP restitution within the framework of rights-based humanitarianism; in what I find a particularly compelling warning about that movement, Hugo Slim wrote a few years ago in a paper for ODI that “as a debate essentially concerned with a political, moral and legal framework, rights-based humanitarianism may never leave the paper and seminar rooms where it is debated and find the means to have a practical effect.” This is, of course, the crux of the problem with the Pinheiro Principles – they are a lovely piece of work on paper but one which in many cases has had trouble achieving a significant practical outcome. Much of the criticism seems to point to this question: are refugees and internally displaced persons (IDPs) actually better off for the existence of the Pinheiro Principles?

I am a pragmatist at heart, but one who does not believe we should throw the human rights baby out with the bathwater. In Beyond Restitution my critique is two-fold. First, I argue, through a discussion that includes consideration of the development of the rights to HLP restitution and return, analysis of a dozen post-conflict case studies, and consideration of the meaning of “home” in the context of forced displacement, that the desired results of return and reintegration could not have been expected to flow directly from Pinheiro-style restitution. Second, I take this analysis as a springboard to address how the post-conflict HLP framework might continue to develop in a way which more effectively contributes to durable solutions, without losing a necessary link to transitional justice and reconciliation. I outline two of my primary arguments here; the book of course treats them in more detail:

Protection in the past tense: New book on displacement and transitional justice explores the role of restitution

by Rhodri C. Williams

This summer, the International Centre for Transitional Justice (ICTJ) published a new edited volume on Transitional Justice and Displacement (click here for the free PDF version) together with the Brookings-LSE Project on Internal Displacement. The book was based on an initial round of research papers and has been accompanied by a much shorter policy brief. All of these resources have been prominently featured on dedicated pages at both the ICTJ website and at Brookings. The volume forms part of a broader series on Advancing Transitional Justice and was edited by Roger Duthie, a senior associate at the ICTJ and a patient and thoughtful collaborator – qualities I appreciated greatly in drafting the third chapter of the book on housing, land and property (HLP) restitution.

The book’s authors chart the relationship between humanitarian responses to displacement and the traditional components of transitional justice (prosecution, truth-telling, institutional reform and reparations) along with more recently articulated concerns such as gender justice. The broader issue of reparations for displacement was ably addressed by Peter van der Auweraert, head of the IOM’s land and reparations program and past TN guest-blogger. In one sense, my chapter on HLP restitution was much narrower than Peter’s. After all, HLP violations are only one of the many types of injuries typically suffered in the course of displacement, and restitution is only one of the forms of redress that can be applied. At the same time, what I enjoyed most about writing the chapter was the opportunity it gave me to think at the broadest possible level about how the fundamental goals and methods of humanitarian action comport with those of transitional justice and even development assistance.

R.I.P. COHRE?

by Rhodri C. Williams

A few weeks back, Elisa Mason of the Forced Migration Current Awareness Blog got in touch to ask me if all was well with the Centre on Housing Rights and Evictions. Their website had gone blank and their last registered tweet was in July, so there were grounds for fearing the worst. In the meantime, my contacts have informed me that this venerable institution has indeed shuffled off this mortal coil, but I have been unable to find out much more than that.

In retrospect, I suppose, there was some writing on the wall. The Wikipedia entry on COHRE (linked above) already referred to 2008 as its high-water mark and there was undoubtedly a wobble when COHRE founder and HLP-rights guru Scott Leckie left the organization to found Displacement Solutions. However, COHRE seemed to be pressing forward, issuing new reports and doing some impressive work on ESC rights litigation. It is hard to believe that such a vital organization could collapse both so completely – the vanished website itself was in important repository of HLP-rights reports and information – and without a whimper, let alone a press release.

So I would like to take a moment to acknowledge the diligent efforts of COHRE colleagues too numerous to mention on all five continents in pushing forward some of the most important and most often overlooked categories of rights. And to put the question: what happened, and can any of it, in the spirit of the Pinheiro Principles, be undone?

Online books on land law in Africa

Just a brief announcement regarding a pair of very interesting online books from last year that are available for free download from the website of the Pretoria University Law Press. Both are edited by Robert Home and address the theme of African Land Law.

The first is a series of case-studies. While most take up development themes, the first two, by Patrick McAuslan and Geoffrey Payne, focus on post-conflict issues. In the case of McAuslan in particular, the analysis appears to further unpack development-based critiques of the Pinheiro Principles of the sort initially raised by the Overseas Development Institute.

The second book features a series of essays, including a discussion of the influence of Islamic Land Law in Africa by Siraj Sait, and several pieces on the trend toward recognition of indigenous peoples’ land rights, in contradiction to the post-colonial impulse to treat untitled land as the property of the state.

The need to move from recognition of such rights to implementation was recently highlighted by a report on Kenya by the Working Group on Indigenous Populations in Africa. According to reports earlier this month by the Nation and the Star, the report highlights not only Kenya’s failure to implement the findings of the African Commission of Human and People’s Rights in the Endorois case, but also ongoing land depredations that continue to threaten other minority groups in Kenya (as reported on earlier in TN here).

Pinheiro and the political philosophers: Achieving justice through post-conflict property restitution

by Christopher Thornton

All legal principles seek, at least in theory, to advance some form of justice. Justice is not however an axiomatic concept; it is highly context-specific and ambiguous. When we are attempting to codify and promote legal norms we cannot afford to fall back on Justice Potter Stewart’s “I know it when I see it” test. Rather we must rigorously interrogate whether a particular legal norm advances justice and under what conditions. This post will attempt a preliminary exploration of the justice of property restitution. It will examine the philosophical paradigm that forms the basis of this “right” and consider how property restitution looks through different philosophical lenses.

Paolo Sergio Pinheiro, the godfather of the right to property restitution in the form of the ‘Pinheiro Principles,’ refers to this right as a “key component of restorative justice” (Principle 2.2) What exactly is meant by “restorative justice”? Restorative justice is a judicial approach that aims to foster reconciliation between conflicting parties. It does not seek to apportion blame but rather to find solutions that allow the parties to both feel that, as justice has been delivered, they can re-establish their relations on a normal footing. Mediation and other flexible problem-solving approaches are characteristic of restorative justice. Restorative justice approaches are particularly useful in post-conflict situations, where the dichotomy between perpetrator and victim is seldom self-evident.

The notion of a right to property restitution, at least strictly interpreted, does not conform to the usual definition of restorative justice. A right to property restitution, and perhaps more broadly an unconditional right to anything, eschews problem-solving approaches and encourages total disregard for the views of the other concerned party. There is little space for a negotiated solution where one party feels they have absolute rights and are absolutely right. I believe that Pinheiro’s use of the term “restorative justice” is misguided, perhaps a result of a conflation of “restorative” with the verb to restore: “to return (something lost, stolen etc.) to its owner”.

It would be more accurate to describe property restitution as a form of corrective justice. Corrective justice finds its philosophical roots in Aristotelian ethics. What matters for a just solution in Aristotle’s eyes is that corrective action is taken to return the situation to the status quo ante. Aristotle describes this as equality: “the just … consists in having an equal amount before and after a transaction.”[1] Property restitution aims to restore a person to the state they were in before the ‘transaction’ took place, i.e before their displacement and subsequent loss of their property, and thus evinces a corrective justice approach to the problem of post-conflict property disputes.

Aside from the practical problems created when more than one “transaction” has taken place (necessitating a chain of corrective actions, which, in some post-conflict situations, has made property restitution programmes look like a game of “musical chairs” in Cox and Garlick’s words), the main problem with this conception of justice is that it presumes the status quo ante was just. Putting aside the question of whether forced displacement is the “right” way to address unjust distributions of property (which I don’t think it is), how do we decide whether a particular person was justly entitled to their property (and by extension, unjustly deprived of it)?

Colombia’s Victims’ Law enacted – Last stand or new beginning for programmatic property restitution?

by Rhodri C. Williams

In a signing ceremony attended by UN Secretary-General Ban Ki-moon, Colombian President Juan Manuel Santos ratified the Victims’ Law last Saturday, fulfilling his  unexpected and ambitious post-election pledge to enact a property restitution bill. Commentary on TN has highlighted both the unprecedented nature of this effort and the formidable obstacles it faces.

The fate of this legislation takes on additional significance against the background of current debates over the post-conflict ‘right to restitution’ proclaimed most prominently in the 2005 Pinheiro Principles. As early enthusiasm about restitution has faded, the need to respond to prevailing humanitarian trends such as urban vulnerability and protracted displacement has led to an increased emphasis on local integration as a durable solution. The extent to which programmatic restitution – and the promotion of voluntary return – remains seen as a viable complementary strategy to local integration efforts may depend on the outcome of the increasingly rare test cases, such as Colombia, that tackle this challenge head on.

Bridging the scholar-practitioner gap with dialogue: Megan J. Ballard responds to Massimo Moratti

by Megan J. Ballard

NB: This posting is written as a response to a piece by Massimo Moratti, entitled “Evictions and cookie-cutter approaches to restitution: a response to Megan J. Ballard”, published in TN on February 9, 2011.

Part of the job of a legal academic is to write law review articles. Many practicing lawyers suggest that these articles – often lengthy and theoretical — are rarely read by anyone other than fellow legal academics. It is, then, a pleasant surprise when someone outside the legal academy actually reads and comments on our work. And it is even more satisfying when the commentary comes from someone with practical experience in the subject matter of the article. This is true, in part, because the tensions and conflict inherent in practice cannot always be captured by scholarly writing, as Mr. Moratti points out. Accordingly, I am grateful for this dialogue.

While Mr. Moratti is critical of parts of my article, he does not seem to assail my primary claims: 1) the legal foundations on which property restitution rests are not entirely on solid ground (a claim acknowledged in our blog author’s November 18 discussion about stretching the existing rules of international law); and 2) many of the theoretical justifications for the Pinheiro Principles may not bear out in the long run, particularly if we fail to heed lessons learned by earlier “law and development” efforts.

Mr. Moratti does, however, take issue with at least two elements of what he calls my “debatable perception” of the restitution process in Bosnia and Herzegovina. For the record, I have no “perception” of that process. As the 26 footnotes to my three-page description illustrate, I relied on published articles and reports for my data — including seven citations to Charles Philpott, the author Mr. Moratti notes, and 12 citations to our blog author, Rhodri Williams.

Evictions and cookie cutter approaches to restitution: a response to Megan J. Ballard

by Massimo Moratti

NB: This posting is written in response to Professor Megan J. Ballard‘s 2010 article in the Berkeley Journal of International Law entitled “Post Conflict Property Restitution: Flawed Legal and Theoretical Foundations” (available here).

It is always with interest that Human Rights practitioners read what academic scholars write about their work. It is one of the instances were practice meets theory to exchange ideas, confirm theories and validate practices. It is in this spirit that I read the recent article by Dr. Megan Ballard on the potential flaws of the Pinheiro Principles and property restitution in Bosnia and Herzegovina (BiH), an issue on which I extensively worked during my over 10 years tenure there.

Professor Ballard’s article prompts numerous reactions and comments. My first reaction was wondering “how many evictions did Dr. Ballard attend?” In the jargon of BIH property restitution practitioners, attending an eviction and the attendant reinstatement of a successful property claimant was the closest form of proximity one could have with the property restitution process. The eviction, often forcible, of the temporary occupant was the culminating moment when all the tensions of the process rose to the surface and when it was possible to fully understand the delicacy of the event.

Evictions presented a potential for violence, given that temporary occupants, often supported by the local ethnic majority political establishment, would mobilize all possible resources to avoid the reinstatement of the pre-war occupant. The pre-war occupant in most cases had been forcibly expelled during the conflict by hostile military or paramilitary groups. Housing officials and local police were trapped between the classical rock and hard place: if they were to postpone the eviction to give in to the pressure of the temporary occupants and of the local political establishment, they were exposed to criticism by international monitors as well as disciplinary sanctions. If instead they conducted the enforcement in accordance with the law, as in most of cases eventually happened, they were considered “traitors” by their community and by the members of their ethnic group.

This rather lengthy introduction may help to frame the issue within terms that are significantly different from the ones emerging from Professor Ballard’s article. Dr. Ballard addresses a number of criticisms to the Pinheiro Principles, mostly relying on a debatable perception of the processes and dynamics that occurred in Bosnia and Herzegovina. There are significant discrepancies between the description of the process in Dr. Ballard’s article and the actual way it was perceived by monitors in the field.