Monthly Archives: April 2012


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).

Foreign Affairs on Syria and the Alawites

by Rhodri C. Williams

Two interesting Foreign Affairs pieces on Syria raise the significance of the ethnic/sectarian dynamic in the conflict. Both articles raise many of the concerns related to the possibility of state collapse and sectarian conflict discussed on these pages earlier. However, both also present modulated views that give some rise to optimism.

First, Leon Goldsmith discusses the role of the Alawite minority that has come to be perceived as dominating Syria through its association with the Alawite Assad dynasty, as well as its overrepresentation in the security forces. He begins with the observation that the Alawites made a conscious decision to integrate into the emerging Syrian state in the 1930s, despite the demonstrated historical threat posed by the Sunni majority. For a time, this audacious decision seemed to pay off as both the Sunni and the Alawites supported the 1963 Baathist coup.

The significance of Hafez al Assad’s massacre of Sunnis in Hama in 1982 is therefore seen as a pivotal moment with high current significance. As tensions had grown after Mr. Assad’s 1970 coup, Sunnis had revived historical accusations of heresy against Alawites and the regime responded by a classic ‘compromising the villages’ strategy:

Even liberal Alawites, who criticized Assad’s aggressiveness at the outset of the revolt, remained silent in the aftermath of the Hama massacre. They had been transformed from victims into perpetrators.

However, Goldsmith evokes the continuing economic disparities within the Alawite community as one of a number of reasons that the current regime may not be able to indefinitely rely on the unconditional support of its base. In an interesting – and no less brave – echo of the 1930s, a small but significant number of Alawites have sought to integrate themselves into the Sunni-led uprising against the Assad regime. Just like the earlier decision to integrate with the state of Syria, the terms of such decisions reflect the existential choices facing minorities in such circumstances:

The fall of Assad presents several possible scenarios for the Alawites. It could launch a comprehensive reconciliation process, drive them back to their mountain refuge in northwestern Syria, or lead to open conflict with the Sunnis. No matter what, the Alawites face a dilemma. If Assad collapses, the community will have to fend off the criticisms of supporting the regime for this long.

In a second piece, former Syrian General Akil Hashem argues that the Syrian uprising has settled into a stalemate in which attrition remains a long way off and both sides will continue killing until they are physically stopped. He implicitly promotes a Western intervention that he asserts would rapidly overcome Syrian defences weakened by pervasive corruption. However, he provides a chilling account of the Assad regime’s mathematics of staving off intervention:

According to my sources, the regime actually regulates how many should be killed per day. At the beginning of the armed uprising, the number was about 50; after the assault on the Baba Amr neighborhood of Homs, the number increased to 100. Assad knows that if he commits a large-scale massacre, he will trigger intervention. So if the numbers climb to 30,000 or 40,000 dead, or many thousands are killed at once, then you may see the international community act.

With regard to the Alawites, the General does not take sectarian loyalty for granted. One possibility that he foresees for an end to the conflict would be “mass defection among the Alawite sect itself.” Meanwhile, he is sanguine – under the circumstances – about the possibity for the Alawite and other minorities to eventually be incorporated in a post-Assad Syria:

There will be chaos. It will be like Iraq — a totalitarian regime that controlled everything suddenly collapsing, opening the door for all kinds of problems, even sectarian violence. But anything that comes after the regime would be a million times better than what we currently have. The doomsday scenarios of the Muslim Brotherhood or al Qaeda taking over Syria are ridiculous. Eventually, the opposition forces in the diaspora and within the country will find a way to unite to establish a free, democratic country.

 Given the current departure point and the precedents in the region, this sounds almost pie-in-the-sky. Then again, Mr. Hashem really may not have so much to lose either way – if he is Sunni.

Local governance in Somalia – New emperor in old clothes?

by Shane Quinn

Somalia has endured a rash of misguided international interventions to resolve its malaise, and apart from initial optimism of the Arta process in 2000 with its extensive civil society participation, these have consistently failed to deliver on their intentions. After all these years, is it finally time for the international community to move away from a centralised state solution towards a hybrid system of governance?

It’s a moot point, although in its latest policy briefing, Crisis Group is heavily advocating in favour of this solution. The latter is not the first to push for this. Back in 1999, in his article, ‘New Hope for Somalia? Building Block Approach’, Matt Bryden promoted autonomy for enclaves or regions which were traditonally recognised as being relatively clan homogenous. In his long research association with the country, Ken Menkhaus has gone further and addressed the idea of organic regional or district administrations assuming a greater role as a viable form of governance in Somalia.

Interestingly, we’ve come full circle after a series of failed initiatives aimed at establishing a central state. Despite all these calls for ‘going local’, promoting autonomy in Somalia is not without its critics. Many Somalis see autonomy as the final nail in the break-up of the country, and also a means of pandering to Ethiopian realpolitik with its emphasis on keeping the country weak rather than having a strong and potentially radical neighbour. The legitimacy of these emerging administrations has also been questioned, as some of them lack a close proximity to their respective communities and in some cases are more interested in being service providers or even, as a Chatham House report terms it, having a monopoly on security. International donors will have to make some hard calls before being possibly immersed in another political maelstrom.

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The Arab Spring – updated challenges and outdated responses

by Rhodri C. Williams

Just a quick Sunday morning posting inspired by two commentaries plucked out of the Swedish foreign ministry’s list of current readings. Taken together, they arguably reflect two fundamental factors at risk of being obscured by the frenetic flow of images and information constantly pumping out of the contemporary Middle East – namely the unprecedented nature of some of the underlying changes driving the unrest and the antediluvian inability of human governance institutions to react effectively.

First out is Thomas Friedman, with an NYT commentary on how the Arab Spring is driven “not only by political and economic stresses, but, less visibly, by environmental, population and climate stresses as well.” Friedman goes beyond my (and others’) observations last year that the Arab Spring was partly motivated by distributional inequalities related to land rights to observe that the productivity of land in the Middle East and North Africa is fundamentally threatened by climate change. For instance, a UN report found that persistent winter droughts wiped out 800,000 Syrian farmers in the five years leading up to the current revolt, and such trends appear to be the new rule rather than the exception.

Friedman extensively cites a report by Francesco Femia and Caitlin Werrell of the Center for Climate and Security in Washington recommending a broader vision for responding to the environmental as well as the political risk factors in the Middle East:

“If climate projections stay on their current path, the drought situation in North Africa and the Middle East is going to get progressively worse, and you will end up witnessing cycle after cycle of instability that may be the impetus for future authoritarian responses,” argues Femia. “There are a few ways that the U.S. can be on the right side of history in the Arab world. One is to enthusiastically and robustly support democratic movements.” The other is to invest in climate-adaptive infrastructure and improvements in water management — to make these countries more resilient in an age of disruptive climate change.

However, a second commentary by Timothy Garton Ash demonstrates how difficult engineering such a response may be. Garton Ash alleges that Syria is being left to an “Ottoman fate” – one that is almost entirely subject to local and regional calculations of power and interest that have have little time for the suffering of ordinary civilians caught up in the violence. Garton alleges that the reason that Europe, in particular, has failed to recognize its interest in seeking a just resolution of the issue is related to its dithering over Turkey’s candidacy to the EU:

The balance of forces around Syria would be different if the historically new, shared sovereignty model of the EU had reached out to embrace Turkey, as it has been promising to do – incredibly, in both senses of the word – for nearly 50 years, since the association agreement of 1963. But it has not. Europe, as Europe, is inaudible on Syria as on so many other issues. And so the fate of that country’s brave resisters and suffering civilians depends on the old-fashioned regional competition of diverse sovereign powers.

 Garton Ash’s implication that a humanitarian intervention should be sought in Syria will be controversial, in the context of a much broader debate raging over this issue. However, his other implication – that Europe has still not learned that failure to positively engage with its periphery will ultimately bring negative consequences – is harder to dispute. This finding is particularly poignant on the 20th anniversary of Europe’s dithering over the breakup of the former Yugoslavia – and particularly worrisome in light of the new climate change-related challenges to regional and global governance that we were so blissfully unaware of back then.

Guest posting announcements and updates – Focus on Somalia, Colombia, Kosovo, Bolivia and Ecuador

First of all, I am very pleased to announce that repeat TN guest author and independent consultant Shane Quinn will shortly be providing some observations on recent proposals to stabilize Somalia by providing autonomy to its regions. I am also expecting follow-up pieces by Brookings collaborator Roberto Vidal on property issues in Colombia, and by legal aid team leader Massimo Moratti on property claims in Kosovo.

In the meantime, I also wanted to provide some follow-up on two recent guest-postings contributed by Nicholas Fromherz of the South American Law and Policy blog. First, Nicholas has provided an update to his earlier observations in TN on the controversy over plans to build a road through the TIPNIS nature reserve in Bolivia. Once again, it seems that the appearance of government restraint in the matter may be deceiving.

Second, a further comment on litigation over oil extraction-related damages in Bolivia by Chevron-associated law professor Doug Cassel on Opinio Juris – as well as the associated comments – highlight some of the key issues Nick raised in his guest-posting on the same topic – and its associated comments. Particularly interesting are questions related to tensions between the merits of the case and the behavior of the parties. However, Dr. Cassel also defends the engagement of human rights actors in favor of even big corporate plaintiffs like Chevron as necessary to demonstrate a level of consistency and impartiality necessary to convince such firms to sign onto voluntary human rights guidelines.

See Shane’s posting here:
– Local governance in Somalia – New emperor in old clothes? (18 April 2012)


Somebody pinch me

Is this a conditional endorsement of the justiciability of social and economic rights by the Economist that I see before me?

Bosnia twenty years on

by Rhodri C. Williams

Observant TN readers will have noticed that Halisa Skopljak’s recent guest posting on lingering return and restitution issues in Bosnia was taken down a few days ago. Halisa found it necessary to ask me to remove the piece for compelling reasons that I am not at liberty to disclose. However, I am hopeful that the post may return from its business trip shortly, allowing the broader public to benefit once again from her unique analysis of a little-known judicial case with important national (and even regional) implications.

In the meantime, I thought it might be worth pointing out a few contextual issues. First, the case Halisa describes is generating a good deal of political heat in Bosnia. Most recently, the Sarajevo based broadsheet Dnevni Avaz described this week’s eviction of Faik Zulcic from his home in the terms it is perceived by many Bosnians – as a judicially sanctioned and ethnically biased attempt to roll back the relatively meager gains achieved by those displaced persons that took the right of return set out in the Dayton Peace Accords seriously. As the Office of the High Representative (OHR) noted, in apparent response to Halisa’s posting, the decision threatens the “right of returnees to the peacefully enjoy their prewar homes.” With the story now having been picked up in Al Jazeera’s Balkan service, there is a chance it may soon hit the mainstream media.

Unfortunately the nature of this case tends to play into Bosnia’s post-war ethnic stereotypes; here, the high court of the Serb-dominated entity of Bosnia upheld the ruling of a (subsequently discredited) lower court judge in expelling a returned Bosnian Muslim from his home for failure to pay exorbitant and legally dubious compensation for improvements made by the Serb wartime occupant. However, as Halisa pointed out in her posting, this ruling comes as part of a nationwide failure to fully act in the spirit of the Dayton Accords. Indeed, the most significant ongoing return-related problem in Bosnia is arguably the failure of the Muslim-Croat entity of Bosnia to implement a European Court of Human Rights decision requiring remedies for the wartime confiscation of semi-privatized military apartments. In this case, the victims are overwhelmingly Serbs.

Given this context, one of the central contributions of Halisa’s post was to shift attention from the heated and frequently unconstructive political debate over these issues, and refocus it squarely on legal arguments and Dayton obligations. At a time when neighboring Croatia is on the threshold of the EU and the Bosnian political discourse is increasingly (and rightly) dominated by European integration issues, it is useful to recall that EU accession should not only signal a new beginning but also closure for the lingering grievances from the past. Supporters of Bosnia’s rapid accession should therefore be concerned by the case of Croatia, which is likely to enter the Union with a number of property and return-related skeletons still jangling in its closet. In fact, a comment on Halisa’s posting by ‘Chris’ touched directly on potential synergies arising from this connection:

Maybe the issue of so called unsolicited investments could be resolved the way it has been in Croatian with the State offering extra judicial settlements to temporary users of occupied properties for the investments made. This is the solution the EU pushed for in Croatia, maybe somebody within the EUSR office should remember about it.

Meanwhile, a few observers have noted the fact that it is now twenty years since the spring of 1992, when the full horrors of ethnic conflict cascaded across a beautiful country inhabited by resilient people who had already survived enough privations in the past and deserved a far better future. For me, it was a time of grim political awakening. As a Fulbright scholar in a sleepy town in northern Bavaria, I followed the blood-streaked headlines from not-at-all-so-far south, and felt the tipsiness of 1989 fade into something sadder and more realistic. However, Ed Vulliamy, who reported from Bosnia at the time, has reminded us of the fates of those who fell directly into the path of the war’s immeasurable cruelty and are still struggling with its legacy. Even twenty years on, it would be grossly unfair to expect ordinary Bosnians to just get over it, but one might ask more of their courts and elected representatives.