Post-conflict occupation of public property – an important issue raised at USIP’s INPRoL forum

by Rhodri C. Williams

I wanted to inform readers of both an interesting rule of law discussion forum – the US Institute of Peace’s International Network to Promote the Rule of Law (INPRoL) – and an interesting discussion that has emerged there based on the following inquiry:

Iraq Health Aid Organization is working with the Iraq Ministry of Displacement and Migration to support internally displaced peoples (IDPs). One issue that has arisen relates to displaced people who have been living in public properties and are now facing eviction or the threat of eviction from government officials. Are there any international norms or standards that should control the eviction of people from public property, particularly IDPs who have no other place to go?

Many of you out there are likely to have some very interesting insights on this discussion – based on experiences in Iraq and many other settings – and I wanted to preface this post by inviting you to join it. Literally. INPRoL is a membership-based resource, but becoming a member is relatively easy. If you would like to be a part of the above discussion or are interested in other issues INPRoL addresses, TN readers are invited to go to the membership application page and sign up, naming me as a nominating member. Once you are in, you can look for “Discussion Forums” in the left-hand menu, click on “General Rule of Law” and look for the discussion on “IDPs and property issues”.

As a preview, I have posted my own response to the Iraq inquiry:

The above inquiry raises a very interesting question, and one that I have done a bit of research on. I would begin by saying it involves an issue that I am aware has come up in many different settings, including (off the top of my head) Georgia, Liberia and Somalia. Public buildings and public property in displacement settings often present a readily available and expedient form of shelter. Responses must balance the imperative of providing continued assistance to vulnerable populations against the legitimate need to restore such properties to legitimate public uses, as well as to respect basic safety and hygiene standards and avoid abuse of the situation by persons not in need of shelter assistance.

The responses received so far are very valuable. I would argue that the Pinheiro Principles are not readily applicable in this case, given that they focus on the rights of private individuals as well as groups seeking to vindicate their rights to properties and homes. In this case, the property rights at stake are primarily those of the state and public authorities, while the strongest claims related to ‘homes’ in such property belong to the squatters themselves. Thus, while the provisions in the Pinheiro Principles related to the rights of secondary occupants may be of some value here, human rights standards related to housing and privacy in the home – as well as development standards related to involuntary relocation of project-affected populations – are of more direct relevance. The documents forwarded by IILHR are also of a lot of interest and I will aim to read through them in the next days. However, it would also be useful to get a summary of the arguments made by IILHR that are of most direct relevance to this question.

My basic analysis of the situation in Iraq would be as follows:

Although occupiers of public property in Iraq probably cannot be said to have acquired property interests that would be recognized under international law, they do unquestionably enjoy other human rights that must be taken into account. Despite the lack of a legal basis for such occupations, the public property in question must be viewed as the homes of the persons concerned. In this context, government efforts to vacate such properties will affect the enjoyment of three human rights rules binding as a matter of Iraq’s international obligations, namely:

  • the right to freedom of movement and choice of residence;
  • the right to privacy in the home; and
  • the right to adequate housing and freedom from forced evictions.

These rules are derived from two central 1966 UN human rights treaties, both of which were ratified by Iraq in 1969. These treaties are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

None of the above-mentioned rights are absolute. Like most other human rights, these rules are phrased in a manner meant to allow individual interests to be balanced against pressing public interests that may come into conflict with them in specific situations. The same balance between individual rights and public interests is reflected as well in a number of development-related standards for situations in which people must be moved from their homes in order to allow large scale projects to proceed. Such standards include the following:

  • Organization for Economic Cooperation and Development (OECD), Guidelines for Aid Agencies on Involuntary Displacement and Resettlement in Development Projects (1991)
  • Asian Development Bank (ADB), Policy on Involuntary Settlement (1995)
  • UN Commission on Human Rights, Comprehensive Human Rights Guidelines on Development-Based Displacement (1997)
  • World Bank, Operational Policy 4.12 – Involuntary Resettlement (2001)
  • UN Special Rapporteur on the Right to Adequate Housing, Basic Principles and Guidelines on Development-based Evictions and Displacement (2006)

The essence of these rules and standards is that interferences with protected rights will not give rise to actual violations of human rights as long as they meet three criteria:

  • legality, or a basis in accessible and non-arbitrary rules of national law;
  • justification, through the invocation of a pressing and concrete public interest; and
  • proportionality, or guarantees that the manner in which such interferences are planned and carried out will minimize their impact on affected individuals.

In the process of seeking a resolution to the problem of the occupation of public property in Iraq, careful analysis of all three of these criteria will be necessary.

First, in assessing the legality of any proposed evictions of squatters, it is crucial to determine whether executive authorities are proceeding on the basis of valid law setting out the criteria and procedures for initiating and implementing evictions as well as the rights and obligations of persons facing eviction. Such law must be accessible to affected persons and non-arbitrary, in the sense of incorporating safeguards to ensure that evictions are undertaken only when justified and in a proportional manner. In the Iraqi context, for instance, the application of former Revolutionary Command Council (RCC) Decrees may not meet the test of legality, particularly in cases of Decision No. 36/1994, which authorizes exceptionally harsh punishments for squatters.

Second, a specific assessment of the existence of public interest justifications for evictions should be undertaken in every case where a proposal is made to remove unauthorized occupiers from a particular area or building. This implies that an undifferentiated effort to remove all squatters would not be justified, even on the basis of important public interest grounds such as asserting the rule of law or complying with legal requirements to provide apartments to qualified public servants. In fact, the current crisis provides an important opportunity to re-assess how to best achieve such goals in light of other compelling public interest needs such as the imperative of addressing Iraq’s chronic housing shortage, and the obligation to provide shelter to displaced persons.

Nevertheless, a number of concrete public interest objectives would justify evictions in specific cases. For instance, evictions might be justified on grounds such as the need to:

  • ensure the flow of urban traffic or the existence of recreational and market areas in cities in cases of illegal construction along the edges of roads, in parks and squares, or in areas off limits for building in accordance with fire codes, or
  • provide housing in secure areas directly to key public servants.

Third, assessment of the proportionality of proposed evictions should ensure they impose the minimum necessary burden on affected individuals while continuing to serve the public interest objectives that justify their imposition. Proportionality analysis begins by examining the question of whether the public interest identified could be served through less drastic means. In situations where evictions are not only justified but necessary, the rest of the proportionality analysis focuses on means of minimizing the effects of evictions on those forced out of their homes.

Given that squatters have not acquired property rights, formal compensation is not necessarily required, but assistance in integrating in other places will be crucial. The effect of evictions on individuals depends largely on how vulnerable they are. In this sense, “minimizing the effects” of evictions will not require a great deal of effort with regard to those squatters who are not dependent on properties they are occupying to meet their most fundamental needs. However for displaced persons, as well as the poor among Iraq’s squatters, whatever they have built on public property may represent their life savings. Moreover, the location of their current homes may be their only guarantee of continued work or educational opportunities for their children, as well as the survival of family and social networks. In such circumstances, authorities should consult with vulnerable persons facing eviction and develop relocation plans responsive to their expressed needs and compatible with Iraq’s human rights obligations.

Finally, proportionality requires that the manner in which evictions are carried out do not cause any unnecessary harm to the life, health, dignity and property of those affected and avoid the use of force wherever possible.

In concluding, I would also draw attention to a very good and concise overview of relevant property issues by Peter van der Auweraert in the proceedings of a November 2009 meeting on resolving Iraqi displacement issues held by the Brookings-Bern Project on Internal Displacement in Doha, Qatar. In his treatment of the public property occupation issue (p. 36), Peter notes both the need for differentiated responses corresponding to the level of vulnerability of various occupant groups, as well as the symbolic importance of beginning with the immediate eviction of political parties illegally occupying public buildings.

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3 responses to “Post-conflict occupation of public property – an important issue raised at USIP’s INPRoL forum

  1. Pingback: TN at five months « TerraNullius

  2. Pingback: International standards governing evictions from public properties | TerraNullius

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