Monthly Archives: February 2011

Libya on the edge

by Rhodri C. Williams

It remains impossible to resist commenting on the amazing cascade of democratic uprisings convulsing the Middle East right now. In all awareness that these lie far beyond the strict purview of this blog (there are undeniably land issues, but they hardly play a central role), I just can’t quite believe that I’m witnessing this type of transformation all over again.

I hear tonight that Ghaddafi’s remaining time in “office” might be a matter of hours and I’m suddenly back to the Macalester College cafeteria one morning in December 1989 when Neville Blakemore told me the Berlin Wall had fallen and I almost dropped my tray. Having at last finished David Fromkin’s Peace to End All Peace a few weeks ago, I had just begun to feel like I had finally arrived at a sound understanding of how the modern Middle East was patched together – and now the rug is gloriously being swept out from under my feet.

The situation in Libya is horrifying, but the persistence of demonstrators throughout the country is all the more inspiring for Mr. Ghaddafi’s apparently limitless brutality. And as usual, some of the most satisfying revenge seems to be occurring online from a tech savvy generation no one seems to have dreamed existed in the Middle East – not least in the form of a hilarious video by an Israeli musician (!) that skewers the dictator’s buffoonish rants.

From a human rights perspective, one of the most interesting things about the current ructions is that they may after all issue from George W. Bush’s project to transform the Middle East. On OpenDemocracy, Shadi Mokhtari points out that Bush broke a taboo surrounding human rights discussions in the region – but not through what he said but what he did. In essence, once Arab leaders found themselves forced to condemn Abu Ghraib, it was impossible to keep the spotlights averted from the other dungeons that had kept them in power for decades. Where it ends, nobody knows…

‘Bosnia Remade’ and beyond

by Gerard Toal

Thank you Rhodri for giving me the opportunity to post on Terra Nullius. You’ve created a great resource here and I look forward to exploring the archives further. There’s much to write so I’ll be brief:

1. Rhodri has already pointed to the European Affairs pieces; I hadn’t read TGC’s piece before the interview but I have to say I’m somewhat baffled at how the ‘partition is the solution’ storyline can emerge from a libertarian think tank supposedly dedicated to individual not group liberty. I think there’s an explanation but it has more to do with US domestic politics and very little to do with any deep understanding of BiH (much of US foreign policy discourse is like this). STRATFOR piece on BiH was a shaky as their whole ‘geopolitical analysis’ enterprise: I had to point out to European Affairs that what they had written as ‘high commissioner’ should be ‘high representative.’

2. The book Bosnia Remade which I co-authored with Carl Dahlman is now out and available (Oxford, 2011). Its been in the works for about 8 years and for various reasons got delayed and delayed. The core of the book is the research we did in BiH between 2002 and 2005 on how the implementation of Annex 7 was unfolding in three BiH localities: Zvornik, Doboj and Jajce. Since 2002 we started publishing aspects of this, writing a total of 10 papers (available on the website under ‘Other Publications’). We could have left it there but I’ve always wanted to read a book on BiH that would tell the story of its transformation from before the war to today in a way that did not reproduce the categories of the warring parties.

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Bosnia update: political crisis, partition proposals and property claims

by Rhodri C. Williams

Bosnia continues to elude complete stabilization in both large ways (such as unquiet territorial debates) and small ones (such as unresolved property claims). A recent run of analysis and reports on Bosnia provides examples of both:

First, a typically engaging piece by Tihomir Loza on TOL updates us on Bosnia’s tormented struggle toward a government after last October’s elections. This article focuses on the way that the Social Democrats – heirs to the ethnically inclusive but authoritarian pre-war Yugoslav political mainstream – have alienated Bosnia’s minority Croats by using a curious loophole in the postwar constitutional framework (and one that was originally pointed out to me by old friend and eminent constitutional expert Gianni LaFerrara when I was a green young intern at OHR).

Specifically, the presidential election rules unintentionally (Gianni?) give non-Croats a decisive vote in electing the Croat member of the Bosnian presidency, an opportunity which they appear to have seized. In reaction, the Croats have begun to demand greater territorial autonomy, asserting (in Bosnia’s curious constitutional parlance) that “the only way for Bosnia’s Croats to protect their interests and dignity was to shape the territories on which they form the majority into a third entity.” Stay tuned…

Second, Gerard Toal has highlighted an interesting exchange of views on the fuure of Bosnia published in the most recent edition of European Affairs. The series starts off with an extraordinarily breezy call for the partition of Bosnia by Ted Galen Carpenter of the Cato Institute. Aside from getting at least one basic Bosnia fact wrong (the “high representative” in Bosnia is distinctive precisely because it is not a UN mission), he appears to conflate the ‘forced unity’ of Bosnian nation-building with a recent history of civil wars fought over the entirely distinct phenomenon of post-colonial inheritance of colonial boundaries (posted on here).

The central policy prescription given is that international actors should ‘withdraw objections’ to the secession of various bits of Bosnia; given that such objections are founded on international treaties, the Bosnian Constitution, the aspirations of a probable majority of Bosnia’s citizens and the regional plan for EU accession of at least three countries, I myself would have a hard time figuring how to campaign for that one, let alone implement it.

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Land, power and identity in complex cross-border areas: Eastern DRC

by Chris Huggins

Around the world, there are a number of international border areas where governance is fuzzy and disputed, citizenship claims are complicated and contested, and economies are trans-boundary in nature. Due to the arbitrary nature of colonial boundary making, ethnic communities are divided by borders, so that loyalties as well as livelihoods are trans-national in character. Illegal resource extraction is endemic, and fortunes are made by the ruthless, even as the majority wallow in poverty. Many such complex border areas are either already in a situation of violent conflict, or at risk of conflict. Examples which have seen violence in recent decades include the Afghanistan-Pakistan border, the Thai-Cambodia border, and the Chad-Darfur border.

Geographical remoteness is one factor: such areas are physically far from capital cities, and there are often cultural differences between local communities and dominant elites in urban areas. The inhabitants are therefore seen as slightly ‘different’ from other regions, and often viewed with suspicion by the state. Due to this geographical remoteness, land is often under held under customary systems rather than the state land registry, and due to the frequency of cross-border movements, land rights can be disputed, as the citizenship of those claiming land and resources are disputed.

The Eastern border of the Democratic Republic of Congo (DRC) is one of these complex and challenging borderlands that is emerging, slowly, unsteadily and precariously, from violent conflict. The history of the DRC is a complex and largely tragic story, too complicated to summarize here. In terms of recent events: during and since the ‘two rebellions’ of the 1990s, which were largely engineered by Rwanda, Uganda, and other regional countries, the country (especially the East) has seen massive bloodshed, some of which is described in Shane Quinn’s recent guest posting on TN. The security situation started to stabilize across most of the country in the mid-2000s as a result of a sequence of peace negotiations. Nevertheless, parts of the East, especially North Kivu Province, remained unstable. While most non-state armed groups engaged in the peace process and were integrated into the government, several groups refused to integrate, and maintained de facto politico-military control over significant swathes of territory.

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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.

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The Onion on Egypt

Thirty years of state of emergency trumped by eighteen days of protest. Its been a pretty wild twenty-four hours but, as the Onion helpfully points out, its now just down to clearing up some administrative details now…

Week in Links – Week 06/2011: Food prices, injustice and Egypt

– Confirming that earlier food price alarums represent a trend rather than a blip, the FAO registered the highest food prices ever earlier this month. Linking this development to the re-emergence of actual food riots in the last years, commentators in Foreign Affairs assert that violence generally fails to erupt unless food price fluctuations are accompanied by a concrete sense of injustice perpetrated by local actors. Whether this should be seen as a reassuring or alarming factor is left to you, gentle reader, to decide.

– While the situation in Egypt is less obviously connected to the subject matter of this blog (whatever the role of food prices there), it is one of the unfolding human rights events of the century and I cannot avert my eyes. And despite the breathing room the Mubarak regime gave the protesters by its cretinous decision to assault foreign reporters last week, things still look pretty precarious. Even as the military appears to wobble on not using open force against protesters, the Guardian has carried allegations of systematic torture of protesters by army units. Meanwhile, even murkier allegations are coming to light about the agenda of the Obama administration and the dubious resume of Omar Suleiman, the ostensible midwife of Egypt’s democratic transition. I am generally not one for conspiracy theories but at this point even fairly mainstream commentators such as Nicholas Kristof and Roger Cohen at the New York Times are nervously urging President Obama to keep himself on the right side of history. I never dreamed I would say this, but I am beginning to feel downright sentimental for the moral clarity (such as it was) of the Cold War.

Happy Birthday TN!

12 months. 120 posts. 12,500 hits. So, how does TN rate?

At the end of 2010, my good hosts at “Team” had a huddle with their “Stats Helper Monkeys” (sometimes I think maybe I’m too old for all this), and notified me that TN placed at the level of “Wow”. The 11,000 hits TN had received through December 2010 were, I was told, the equivalent of 26 full 747s.

Now I suspect that puts me several national airlines behind your average blog on iPads and I can only dream of the kind of numbers that colleagues like Antoine Buyse get at seasoned forums like the ECHR Blog. On the other hand, when I was really honest with myself about the subject matter of this blog, I figured ’boutiquey’ was about as high as I could shoot and by that standard I believe we have more than succeeded.

So, to all the frequent flyers, a heartfelt thank you for your support, your comments and your sustained interest. I hope our service will continue to improve and that we might even pick up a few new destinations this year. And particular gratitude goes to my co-pilots, friends and colleagues who contributed their time and insights as guest-bloggers:

In kicking off TN’s second year, I would like to invite even more of you to weigh in with guest postings, comments, feedback, suggestions, etc. If there is one lesson I’ve learned after twelve months of this, it is that TN is a lot more fun as a forum than as a soapbox. Happy 2011!

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.

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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.

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