In search of a duty-bearer: No remedy for destruction of property during Kosovo’s international supervision

by Milica Matijevic and Massimo Moratti

It is easy to guess that, as in most legal aid programmes implemented in post-conflict settings, the majority of cases handled by the EU funded legal aid project “Further support to refugees and IDPs in Serbia” concern repossession of property owned by IDPs and refugees. These are mostly cases of property restitution and/or compensation for property that can’t be repossessed. This topic has been the focus of a newly released report dealing with these aspects of the right to property restitution and/or compensation.

When dealing with competent officials in the field, be they international or domestic, we often hear the statement that the case of Kosovo is “specific” or “particularly complicated”. For those dealing with housing, land and property rights, this should be nothing new. Every displacement crisis has its own specific aspects and by their own inherent nature property cases are very often “particularly complicated”. Unfortunately, the rationale behind the explanation of this kind is that international human rights standards shouldn’t be applied, and possibly the status quo shouldn’t be touched.

In its most recent report the Project assesses a number of questions “specific” to the context of Kosovo and, in fact, shows how international standards are applicable to the Kosovo context.  Although it is not always clear who the duty bearers are, it is clear that IDPs and those forced from their homes by the conflict are the right holders and that the difficulty in identifying the duty bearer renders the rights of IDPs meaningless.

The report proceeds from the general rule that internally displaced persons enjoy the same set of rights as any other citizen of the state within which they reside. When applied to the situation of an internally displaced person from Kosovo this would mean that they can assert their property rights on the same basis as any other resident of Kosovo.

Notwithstanding the fact that the applicable legal framework contains strong guarantees of the right to property, including the right to be compensated for unlawful damaging or destruction of one’s property, the position of IDPs is often not adequately taken into account by the relevant national and international authorities and their claims remain largely unattended.

The report deals with a specific caseload, the famous “18,000 compensation claims”. These are claims that were brought by IDPs from Kosovo against the UN Mission in Kosovo (UNMIK) and the Provisional Institutions of Self-Government in Kosovo for compensation of damages to private property that occurred as a result of the 1999 NATO air campaign and the March 2004 riots. Those claims were for long time “frozen” by a request of UNMIK, which later on was found in violation of the right to a fair trial by the UNMIK Human Rights Advisory Panel, in Opinions released on February 23, 2011 (Esat Berisa Case no. 27/08 and others v UNMIK) and March 24, 2010 (Petko Milogoric, Case no. 38/08 and others v UNMIK)

Redress without fault? UN to promote ‘automatic’ state reparations for terrorist attacks

by Rhodri C. Williams

The Guardian informs about a new report slated for release in June by the UN’s special rapporteur on counter-terrorism and human rights, Ben Emmerson. The report is said to propose “automatic legal rights to compensation and rehabilitation” for terror victims “under far-reaching changes to rebalance international law in favour of victims”:

The Emmerson report, if accepted, would have the effect of obliging all UN states to adopt a uniform set of standards, establishing more firmly in international law the principle that terrorist acts amount to violations of the human rights of the victims, irrespective of the question of direct or indirect state responsibility.

Sound intriguing? At first blush, this certainly seems to go beyond developments such as recent European Court of Human Rights jurisprudence requiring states to provide reparation to victims of foreseeable disasters that the state did not take reasonable steps to mitigate (on which, see Walter Kälin and Claudine Haenni here).

The text of the article implies a scoop, breathily citing details of the report “which have been obtained” by the Observer. However, fortunately for the rest of us, the entire draft report can be “obtained” by downloading it directly from the Rapporteur’s website. And it is worth a read, particularly paragraphs 49-63 on reparations.

Interestingly, the Special Rapporteur has not created an entirely ex gratia framework, but rather extended the notion of the state’s positive obligation to prevent terrorism based on a victim-centered approach. The idea that victims have undertaken an involuntary sacrifice on behalf of the state is endorsed (para 54), and the fact that it is virtually impossible to seek reparations from the perpetrators of terrorism is asserted as “perhaps the most fundamental point” (para 56). However, the existence of a human rights-based ‘duty to protect’ from terrorism appears to play a significant role:

…the determination of State responsibility for an alleged failure to take positive operational steps to prevent an act of terrorism can be fraught with evidential difficulties. If the approach advocated by the Special Rapporteur is followed, States will be under an obligation to provide reparation without imposing an additional burden on the victims or their next-of-kin to prove conclusively that public officials were at fault. (para 55)

Curiously, the report cites the Van Boven-Bassiouni Principles (at para 51), but only on the basic point of substantive reparations for rights violations, but not the implication in paragraph 15 thereof that the state should assume up-front responsibility for repairing rights violations by non-state actors, with the ability to later seek indemnification from the real perpetrators:

In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.

The section ends with an interesting discussion of the significant body of domestic law and practice that already exists in this area. According to the Guardian, the report is to be “presented to the UN human rights council in Geneva on 20 June and the general assembly in New York on 28 June” and already enjoys significant backing. Definitely one to watch.

Addressing systemic obstacles to restitution in Kosovo: Legal aid as a fact finding tool

by Massimo Moratti

In post conflict settings in which internally displaced persons (IDPs) seek to regain possession of their properties, the provision of legal aid becomes an essential service for the protection of their rights in the place of origin. The importance of such services is even greater when significant barriers arise between the place of origin of the IDPs and the place where they are actually displaced. These barriers may not only consist in the physical distance between the two places, but also in the fact that the place of origin of IDPs (in this case, Kosovo), and the place of displacement of IDPs (Serbia) hold diametrically opposed views on the future of Kosovo and are evolving into two separate legal systems with little or no institutional communication. Phone lines, mail and official communication are interrupted and, pending reciprocal recognition or an overall settlement of the issue, their resumption cannot be envisaged in the immediate future.

For these reasons, the Delegation of the European Union to Serbia has partnered with the Serbian authorities to provide legal aid services to IDPs from Kosovo as well as refugees from Bosnia and Croatia through Instrument for Pre-Accession Assistance (IPA) funding.

Upcoming guest posts: (1) post-disaster rights to housing, and (2) land in conflict prevention

It is a great pleasure for me to both introduce two very interesting new reports and announce that their authors will shortly be providing a more personal introduction through guest-postings on TN.

First, the UN Special Rapporteur on the right to adequate housing, Ms. Raquel Rolnik, has prepared her latest report, which will be presented at the 66th session of the General Assembly in October. Where Ms. Rolnik’s previous report (introduced briefly in TN here) focused on the right to housing in the wake of both conflict and disaster, the current report focuses more narrowly on disasters (a theme the SR also took up in the context of a recent trip to Haiti). Ms. Rolnik’s report cannot be officially distributed until after its presentation to the GA in October, but is currently available on her website. While the report makes for interesting reading as such, I’m particularly pleased to announce that the SR and her team will soon provide further insights in a guest post on TN.

Second, Quiet Diplomacy has just launched a new Handbook on Land and Conflict Prevention. While this might sound like a contradiction in terms to some, the Handbook offers “step-by-step guidance for conflict prevention actors … in finding the space for legal, institutional and policy reform in the land sector, and promoting just and workable solutions.” It sounds like a tall order but one that is all the more important in era when the corrective approach adopted in texts like the Pinheiro Principles is increasingly required to accommodate new distributive demands. And once again, I’m very pleased to announce that the authors, John Bruce and Sally Holt, will shortly be sharing some of their insights on TN.

Sweden versus social and economic human rights? Part 2: The right to water

by Rhodri C. Williams

In 2006, when I was still relatively new to this part of the world, I started participating in a working group run by Swedish Water House on water as a human right. At the time, only four years had passed since the UN Committee on Social and Economic Rights had read a right to water into the right to an adequate standard of living in their groundbreaking General Comment 15. The UNDP had just released its 2006 human development report on the global water crisis, which pinned blame firmly on misguided policies, not absolute scarcity or technical issues. DFID had just officially notified the world that water was a human right. The wind was at our backs. But not the Swedish Foreign Ministry.

In effect, what I had assumed would be an exercise in enlightened Swedes lecturing the world on the importance of recognizing the right to water turned out to be an exercise in enlightened Swedes lecturing official Sweden on this point. Neither the Foreign Ministry nor the Swedish International Development Cooperation Agency (Sida) had recognized the right to water, nor did they evince much enthusiasm. After a year of prodding, a pleasant but slightly beleaguered Foreign Ministry official attended an October 2007  seminar and conceded that “the government recognizes the right to water as emanating from the right to an adequate standard of living in article 11, paragraph 1 of the ICESCR” (seminar report, 12).

However, the lawyers had clearly been at work, and the “emanating” formulation (as opposed to recognition as a “free-standing right”) became a means of maintaining opposition to normative developments then underway in Geneva:

Week in links – week 12/2011

The current march of historic events continues apace with the aftermath of the Sendai quake still causing headlines and a new chapter in the annals of R2P being written in the skies over Libya. Quite a few bits of less dramatic but very interesting HLP-related news as well, many detailed below.

Some interesting things coming up on TN as well – in addition to a number of individual guest-postings currently in the works, I am very excited to announce that Landesa has offered to periodically cross-post pieces from their excellent Field Focus blog. Look out for a debut piece early this week.

Turning to the news, the Internal Displacement Monitoring Centre (IDMC) just released their global overview for 2010. The conclusions are sobering, with a new rise in overall conflict-related internal displacement and the consolidation of a number of negative trends such as protracted displacement situations and displacement due to generalized violence (e.g. criminal activities as opposed to ordinary armed conflict).

The UN Special Rapporteur on the right to food, Olivier De Schutter, recently submitted his annual report, this year with a plug for ‘agroecology’ – a cultivation technique identified by Mr. De Schutter after an “extensive review of the scientific literature” as most likely to help states “achieve a reorientation of their agricultural systems towards modes of production that are highly productive, highly sustainable and that contribute to the progressive realization of the human right to adequate food.” Kudos to Mr. De Schutter for sparing the rest of us the scientific literature and moving the debate over global agriculture in an interesting new direction.

In the wake of the triple catastrophe in Japan, the New York Times reports on how much of the affected coast was inhabited by elderly persons unlikely to rebuild. In the clinical terminology of climate change, the obvious question is whether the abandonment of many of these obliterated towns and villages will ultimately come to be seen as a form of adaptation to be replicated in other parts of the world. As the Times notes, it is hardly the first time the question has come up:

“We faced exactly the same question after Katrina,” said John Campbell, [a] visiting scholar at the University of Tokyo. “There was a big discussion about whether we should rebuild the Ninth Ward, since it was below sea level, and so on. In terms of economic rationality, it didn’t make any sense, really. But on the other hand, it’s where these people lived, and there were emotional reasons to do it.

Meanwhile the UN International Strategy for Disaster Reduction (UNISDR) released its mid-term review, halfway through the ten year period envisioned for implementation of the Hyogo Declaration and Framework for Action. In an almost morbid quirk of timing, the document was released two days before the catastrophe in Japan, rendering its calls for greater attention to disaster risk eerily antiquated: “…the Hyogo Framework for Action is the world’s only blueprint for staving off losses caused by natural hazards, often overshadowed by news on losses from war, unemployment or inflation.” With all due respect to Col. Ghadafi’s current bout of attention-seeking, this shouldn’t be an issue now.

After quite a lot of coverage earlier this year, the renewed efforts to achieve land restitution in Colombia fell off TN’s radar somewhat. However, things seem to be moving forward – here, NPR reports on how some land has already been returned to displaced owners (it is unclear on what basis this has occurred) as well as on how restitution remains tied to broader agricultural reform goals.

Finally, having cited EurasiaNet earlier on the lengths gone to by Azerbaijan’s IDPs to avoid locally integrating in order to maintain their prospects for return, I have now found a companion piece on Transitions OnLine on how far Armenians in contested territories will go in order to maintain their competing claims:

The people here acknowledge that life in villages is difficult and boring, especially when there is no electricity. But they persevere. “This land needs to be tended,” Khachatryan says. “My children have to plant trees, harvest crops, and have children here to understand this is the homeland and it needs to be kept,” Khachatryan says, lighting the oil lamp with care.

Regional advocacy on the UN human rights mapping exercise in the Democratic Republic of Congo

by Shane Quinn

With the focus on North Africa these days, it’s a little difficult to sway observers of human rights issues to other pressing situations such as that of Democratic Republic of Congo (DRC). After all, DRC has received its fair share of analysis over the years from human rights and rule of law to humanitarian and peace-building perspectives, and yet this conflict continues to bubble accompanied oftentimes by horrendous mass rapes and internecine massacres. DRC has become synonymous with a deficit of accountability and lack of recourse for victims of grave human rights abuses.

So how then, will the recently published UN Mapping Exercise on Grave Human Rights Abuses from 1993-2003 manage to establish some long awaited justice for the many victims of its wars? With great difficulty, is the proverbial answer. Although the report succeeds in pointing out the roles and responsibility for human rights abuses of different actors including the Congolese state and its neighbours in the region, the latter have effectively dismissed the report as groundless. The Rwandan government in particular has been highly critical of the mapping report and related lobbying and advocacy activities of civil society organizations (CSOs) in DR Congo and Rwanda, directly questioning the UN’s mapping methodology and referring to the content of the report as lies.

The Human Rights in Ireland blog gives a very balanced overview of the expectations on the mapping report, while also dampening the expectations felt by many civil society actors within the DRC and the Great Lakes. The fact of the matter is that this mapping report – while initially shaking the regional status quo by accusing Rwanda and Uganda amongst other countries of grave human rights abuses – has failed to ignite a regional push for greater accountability by either civil society or international actors.

It is early days of course, and only three months have passed since the publication of the report, but already plans are being laid for the elections in DRC in June 2011 and the mapping has not been mentioned as a central issue of any electoral campaign. Instead, the danger is that it assumes a similar fate to prior human rights reports conducted in Timor Leste and Sudan, which attracted little more than a passing glance by the international community. The worrying proof is also in the lack of hits on the internet since the publication date of 1 October last year. Having waiting for this report to be published, maybe civil society actors in the region can now start communicating across the region’s borders and try to establish some momentum before the elections.

Upcoming guest-postings on Democratic Republic of Congo by Chris Huggins and Shane Quinn

by Rhodri C. Williams

As we become inured to a steady procession of breaking political and humanitarian crises, it is relatively easy to forget about the many protracted low-level conflict scenarios that seem to grind relentlessly forward, perpetuating human misery in isolated corners of the world without ever improving or deteriorating sufficiently to register very strongly in the public consciousness. The situation in the Democratic Republic of Congo (DRC) is arguably the premier example of this phenomenon. Featured in the most recent issue of Forced Migration Review (FMR), the situation in DRC is succinctly described by former UN Emergency Relief Coordinator John Holmes as ‘a scandal that needs to end’.

With nearly two million internally displaced persons and a history of being locked into its own conflicts and victimized by those of its neighbors, the untapped human potential and resource wealth of DRC is staggering. However, the nervous initial reception and subsequent awkward silence surrounding an October 2010 UN Mapping Report on human rights violations committed between 1993 and 2003 in DRC hint at the extent of the challenges to addressing the root causes of conflict there. This blog has not done justice to land and human rights issues in DRC to date, but that is about to change thanks to the expertise of two upcoming guest-bloggers:

First, Chris Huggins will be contributing his third guest-posting on TN, this time introducing an October 2010 report he wrote for International Alert on ‘Land, Power and Identity: Roots of Violent Conflict in Eastern DRC’. As indicated in the title, Chris’ report focuses not only on the significance of land for individuals but also its role as a sustaining factor in inter-group conflicts, particularly in the volatile province of North Kivu.

Second, first time TN guest-blogger Shane Quinn describes the role of civil society organizations (CSOs) in the Great Lakes region in seeking to draw attention to the findings of the above-mentioned UN Human Rights Mapping Report. Efforts to end impunity and promote reparations for victims identified through the report have been proposed through both political processes such as the upcoming DRC elections and legal procedures such as those before the African Commission on Human and Peoples’ Rights (ACHPR).

As in virtually all other contemporary conflicts, land is a crucial underlying issue in DRC. In both the findings of a recent RSC workshop and a number of articles in the latest issue of FMR (available for free download here), experts and practitioners have attested to the link between land competition and ethnic tensions that persist both within the eastern provinces of DRC and across its borders.

UN Secretary General urged to address Cambodia evictions

by Rhodri C. Williams

In a press release today, COHRE appealed to UN Secretary General Ban Ki-Moon to use his current trip to Cambodia to seek an improvement in respect for housing rights. The PR focused in particular on the ongoing evictions from the Boeung Kak district of the capital Phnom Penh, which has been the subject of previous TN postings by both myself and Natalie Bugalski.

Sadly, it is a bit hard to picture the Secretary General spontaneously acceding to COHRE’s suggestion that he

meet with representatives of the Boeung Kak community during his visit to Cambodia this week, to “demonstrate the commitment of the UN to its core founding purpose of ‘promoting and encouraging respect for human rights and fundamental freedoms’ for all people everywhere.”

Indeed, it will be interesting to see if the SG will be so indelicate as to mention any of the rather alarming lurches Cambodia has made away from the extensive human rights obligations it undertook as part of the early 1990s peace process.

For some insights, I turned to Turtle Bay, where I was most immediately struck by China’s recent diplomatic successes in the UN, both in terms of obscuring the fact that its own weapons industry appears to be doing a roaring business in Sudan despite the embargo, and in the narrower area of defending states in its near abroad – in this case Burma – from human rights and war crimes scrutiny.

As I’ve noted in the past, Burma and Cambodia have a few things in common, ranging from their increasingly close economic and diplomatic ties with China to their poor human rights records. Although there has been a longstanding tendency on the part of development actors in Cambodia to dither a bit on human rights issues like forced evictions, one can’t help but wonder whether China’s recent bouts of vigorous UN diplomacy might not have a further chilling effect on what is already a fairly cooled down topic.

Happy World Humanitarian Day!

by Rhodri C. Williams

Okay, you might be forgiven if the big date slipped your mind – after all we are only two years in since Sweden sponsored a UNGA Resolution that created it. Its worth a pause for reflection, however, as the timing this year is rather poignant. August 19 was proposed as it was the date of the bombing, in 2003, of the UN compound in Baghdad. At that time, SRSG Sergio Vieira de Mello was killed along with 21 others, including my law school asylum law professor (and mentor to many of my colleagues) Arthur Helton.

In the seven years since the UN attack, it is hard to say a lot of progress has been achieved in terms of resolving the fundamental dilemma in which humanitarian workers are increasingly targeted in spite of the principles meant to protect them and therefore increasingly dependent on forms of protection that are hard to reconcile with those principles. Indeed, as described by Samantha Powers and others, de Mello’s own presence in Iraq reflected a post 9-11 dynamic in which humanitarians have struggled to find an appropriate role in situations where they are badly needed but more at risk than ever of being perceived as partial by association or even design.

Last October, Conor Foley described a variant of this pattern in Afghanistan, asking how many more humanitarian aid workers would have to die before it would be broken. Part of the answer came with the appalling murder nearly two weeks ago of ten aid workers in northern Afghanistan. So its a good day to reflect on a lot of people who are out there in uncomfortable and dangerous circumstances working to mitigate the situation of others who are even worse off and do not have the option to leave. Would that none of it were necessary.