Daily Archives: March 11, 2010

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:

  • 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.