Monthly Archives: September 2012

Beyond restitution: New book explores property rights and durable solutions for the displaced

by Anneke Smit

Anneke Smit is Assistant Professor in the Faculty of Law, University of Windsor (Canada), where she teaches Property Law. She has worked on displacement and post-conflict property issues for more than a decade, including in Kosovo with OSCE and in Georgia with a grassroots human rights NGO. She is the author of The Property Rights of Refugees and Internally Displaced Persons: Beyond Restitution, published this year by Routledge.

Recent posts in TN by Roger Duthie and Megan Bradley as well as Rhodri Williams, highlight the importance of transitional justice in bringing displacement to an end and encouraging processes of reconciliation. Yuliya Alieva’s post on the two decades of internal displacement in Azerbaijan is a critical reminder of the intensifying need to consider the full range of durable solutions – local integration and resettlement in addition to return, in particular in protracted displacements. These discussions reinforce the importance of post-conflict housing, land and property (HLP) restitution to contribute to these processes, but they are also reminders of the limitations of the current international legal framework.

Regular readers of this blog will be aware of the enormous strides which have been taken in the last decades with respect to post-conflict HLP restitution. The international legal framework on HLP restitution is since 2005 dominated by the (non-binding) UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (The Pinheiro Principles). Principle 2 of the Pinheiro Principles states in part:

2.1 All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived[.]

As such, the Principles prioritize restitution “in kind” (or in rem) as the preferred remedy to conflict-related HLP rights deprivations. Other remedies, including but not limited to compensation, are possible but these are clearly subordinated to return of the actual property. Since their inception, the Pinheiro Principles have been discussed and publicized widely. At first, it seemed taboo to criticize the Pinheiro Principles, given the substantial and hard-won contribution they made to a critical area of post-conflict justice and solutions to displacement. Recently, however, it seems the floodgates of criticism have opened.

Rhodri’s recent blog post on the UN high level rule of law meeting alluded to the place of HLP restitution within the framework of rights-based humanitarianism; in what I find a particularly compelling warning about that movement, Hugo Slim wrote a few years ago in a paper for ODI that “as a debate essentially concerned with a political, moral and legal framework, rights-based humanitarianism may never leave the paper and seminar rooms where it is debated and find the means to have a practical effect.” This is, of course, the crux of the problem with the Pinheiro Principles – they are a lovely piece of work on paper but one which in many cases has had trouble achieving a significant practical outcome. Much of the criticism seems to point to this question: are refugees and internally displaced persons (IDPs) actually better off for the existence of the Pinheiro Principles?

I am a pragmatist at heart, but one who does not believe we should throw the human rights baby out with the bathwater. In Beyond Restitution my critique is two-fold. First, I argue, through a discussion that includes consideration of the development of the rights to HLP restitution and return, analysis of a dozen post-conflict case studies, and consideration of the meaning of “home” in the context of forced displacement, that the desired results of return and reintegration could not have been expected to flow directly from Pinheiro-style restitution. Second, I take this analysis as a springboard to address how the post-conflict HLP framework might continue to develop in a way which more effectively contributes to durable solutions, without losing a necessary link to transitional justice and reconciliation. I outline two of my primary arguments here; the book of course treats them in more detail:

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UN High-Level RoL meeting to take up HLP issues … maybe

by Rhodri C. Williams

Last week, I had the pleasure of attending a seminar marking the tenth anniversary of Sweden’s government agency “for international peace intervention”, the Folke Bernadotte Academy (FBA). The topic of the seminar was rule of law (RoL) in general and this Tuesday’s UN conference on the issue in particular. The high level meeting at this year’s 67th session of the UN General Assembly is one of these periodic, frantic plenary meetings where all the states in the world along with a plethora of observers and NGOs culminate weeks of behind-the-scenes wrangling with (hopefully) the adoption of an outcome document that may push an important issue forward a few steps.

In the best case, the outcome will have legs even if the grandiosely named meetings themselves quickly fall into the obscurity of UN genealogy. Students are frequently bemused to hear that they failed to notice a “World Summit” hosted by the UN in 2005. However, few have failed to notice the resulting responsibility to protect (R2P) doctrine. And for those of us in the rights-based humanitarianism branch, the strong endorsement of the UN Guiding Principles on Internal Displacement buried in paragraph 132 of the Outcome Document may come to be seen as a pretty important step in the long march from soft law to opinio juris. But I digress.

Some of the talk at the FBA seminar was about the high-level politics of the high-level meeting, and particularly an emerging tendency to distinguish RoL as applied at the international versus the national levels. This has apparently been one of the key debates surrounding the drafting of the outcome document, with states that see domestic RoL as one of their own virtues more inclined to promote it to others (and the targets of their exhortations curiously more interested in the international variant). However, all indications are that there will be a buffet-style compromise, with both national and international RoL, as well as various ‘nexuses’ in between on offer.

This is perhaps most clearly evinced in the UN Secretary-General’s preparatory report for the conference, which proposes the adoption of a broad and often ambitious programme of action. Some proposals are simply unrealistic (states should ‘remove any reservations’ to UN treaties they have ratified, para. 12). Others are curious to the point of evoking typos (UN post-conflict RoL assistance should ‘promote gender’, full stop – para. 24). However, the overall feel of the document is quite sound, reflecting an increasingly emphatic accommodation of legal empowerment and economic/social concerns in an area of practice that arguably began as a bastion of orthodox civil and political imperatives.

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Doing justice for refugees and IDPs? Confronting displacement through transitional justice

by Roger Duthie and Megan Bradley

Roger Duthie is a Senior Associate in the Research Unit at the International Center for Transitional Justice. Megan Bradley is a Fellow at the Brookings Institution, where she works with the Brookings-LSE Project on Internal Displacement.

Serious human rights violations are very often an integral part of displacement crises. Certain violations, such as mass killings, arbitrary arrests, torture, and rape, often cause displacement, while others, such as the destruction of homes and property, can be aimed at undercutting the possibility to return home. Forcible displacement is frequently a deliberate strategy used by parties to a conflict and can in itself constitute a war crime or a crime against humanity. In addition, displacement can leave its victims vulnerable to other abuses, without the protection provided by their homes, livelihoods, communities, and governance structures.

Transitional justice is generally understood to be a response to the legacies of massive and serious human rights violations, one that tries to provide redress for victims and accountability for perpetrators through a set of measures including criminal prosecution, truth-telling, reparation, and institutional reform. Given the links between rights violations and displacement, transitional justice measures certainly have good reasons to address the issue of displacement. And yet, for the most part, displacement has not been the focus of a lot of transitional justice practice and literature.

In 2009, the International Center for Transitional Justice (ICTJ) and the Brookings-LSE Project on Internal Displacement began a collaborative research project to examine the role that transitional justice could play as part of the response to displacement. Specifically, we looked at the capacity of transitional justice measures to address displacement, to respond to the justice claims of internally displaced persons and refugees, and to support durable solutions. Importantly, we also looked at the conceptual links between transitional justice measures and the activities of the humanitarian, development, and peacebuilding actors that generally work more directly on displacement.

The project’s final products include a report that highlights our conclusions and recommendations; an edited volume containing the project’s thematic studies; and 14 case studies on country experiences from Central Africa, Colombia, Israel-Palestine, Kosovo, Liberia, Peru, Timor-Leste, Turkey, and the former Yugoslavia. These are all available to download through the ICTJ and Brookings-LSE Project websites. ICTJ’s website also has an interactive map to highlight the research though photographs and visual data.

What were some of our most important findings? To start with, a number of recent reports, resolutions, and guidelines have acknowledged the need for societies struggling to resolve displacement crises to respond to the justice concerns of IDPs and refugees. These include the 2004 and 2011 versions of the Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, the Inter-Agency Standing Committee’s 2010 Framework on Durable Solutions for Internally Displaced Persons, the 2009 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, and the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons.

Furthermore, while transitional justice measures have not traditionally engaged in depth with the concerns of refugees and IDPs, they have in some places addressed displacement. Restitution of housing, land, and property, for example, is the justice measure probably most directly connected to displacement, and restitution programs have been implemented in countries such as Bosnia and Herzegovina, Timor, Kosovo, and Iraq.

Reparations programs can provide benefits for abuses that led to displacement, for harms suffered while displaced, or for displacement itself, but while programs in Guatemala, Peru, and Colombia consider displaced persons eligible to receive benefits, they are yet to receive any for the violation of displacement itself. Truth commissions, as in Liberia, Sierra Leone, Timor-Leste, and Guatemala, are increasingly recognizing and investigating displacement, with some holding sessions making recommendations on the issue. And an international legal framework now exists to criminally prosecute arbitrary displacement when it qualifies as a war crime or crime against humanity, and cases at the ICC, the ICTY, and in Colombia have included charges of forcible displacement.

We also found that responding to displacement with transitional justice raises a particular set of challenges. For example, given the scope and complexity of large-scale displacement, transitional justice measures have a limited capacity to deal directly with the problem. This is particularly the case with measures that seek to provide redress directly to victims, because the large numbers of displaced people present significant resource and institutional challenges. Criminal justice efforts may also be constrained, both because, with limited resources, prosecutors often prioritize more traditional crimes and may be hesitant to add to the complexity of cases by including displacement crimes, but also because international jurisprudence on forcible displacement as a crime is less developed than it is for other violations.

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Can you be internally displaced for twenty years? Housing issues and protracted displacement in Azerbaijan

by Yuliya Aliyeva

Yuliya Aliyeva is a Senior Program Manager at the Caucasus Research Resource Center, Azerbaijan. This blog post is based in part on the publication she co-authored last year for the Brookings-LSE Project on Internal Displacement, “‘Can you be an IDP for Twenty Years?’ A Comparative Field Study on the Protection Needs and Attitudes towards Displacement among IDPs and Host Communities in Azerbaijan”.  The report co-author, Tabib Huseynov, is the Caucasus Program Manager for Saferworld.

The ongoing conflict with neighbouring Armenia over Azerbaijan’s predominantly Armenian-populated region of Nagorno-Karabakh produced one of the largest flows of refugees and internally displaced persons (IDPs) seen during the deterioration process of the former Soviet Union. Today, some 595,000 people—or seven percent of the total population—remain internally displaced in Azerbaijan.[1] While the two states continue their posturing about the future of Nagorno-Karabakh, hundreds of thousands of Azerbaijani citizens await durable solutions to their displacement and continue to face major housing and property concerns in particular.

The conflict started in 1988 as Armenians demanded incorporation of Nagorno-Karabakh into Armenia. As the Soviet Union collapsed in 1992, leaving a huge power vacuum behind, inter-communal clashes escalated into a full-scale undeclared war between newly independent Armenia and Azerbaijan. As a result of the fighting, which left some 25,000-30,000 people dead on both sides, Armenian forces gained control over Nagorno-Karabakh and seven surrounding districts that together make up 13.6 percent of Azerbaijan’s territory. A cease-fire was signed in 1994, which has largely held until today, although the parties have been unable to resolve the political dispute regarding the status of Nagorno-Karabakh.

As IDPs fled the conflict areas, they were temporarily settled throughout Azerbaijan. Some of them settled in administrative buildings, schools, unfinished buildings, dormitories and sanatoriums. Others were placed in IDP camps, railway cars, dugout shelters and other sub-standard emergency shelters in rural areas. The housing conditions for some IDPs have improved over time and are now similar to those enjoyed by the general Azerbaijani population. However, for the majority of IDPs, proper housing is still only a dream.

Today, according to official statistics, 86 percent of IDPs in Azerbaijan live in urban areas (mainly in Baku and Sumgait).[2] According to a recent World Bank study, 42.5 percent of IDPs live in one-room accommodations, compared to only 9.1 percent of non-IDPs.[3] As a result, IDP families have an average of 36 square meters of living space compared to 74 square meters for non-IDP families.[4] That being said, there is some diversity among IDP populations and their housing situations. Overall, the IDPs can be divided into four categories based on housing conditions.

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Corporate social responsibility in a changing world: Targeting conflict resource exploitation

by Rhodri C. Williams

The march of the voluntary guidelines continues, it seems, with new approaches geared to address gaps in earlier efforts to urge corporate self-control. As Peter Spiro noted some time back in Opinio Juris (and Chris Huggins pointed out in these pages), the promotion of “soft” voluntary standards as a means of getting at some very hard human rights violations is still seen with skepticism in many quarters.

Nevertheless, Mark Taylor makes an engaging case for such standards in a recent Open Democracy piece on the role of natural resource extraction in fueling conflict. The article highlights the Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict Affected and High Risk Areas, a standard adopted by the Organization for Economic Cooperation and Development (OECD) in May 2011 and subsequently regulated in the US through new regulations issued by the Securities and Exchange Commission (SEC)  under the Dodd-Frank Wall Street Reform Act.

Taylor notes several key insights that have emerged in the wake of older certification schemes such as the Kimberly Process for conflict diamonds. These include the manner in which both illicit inflows into conflict areas (such as small arms) and outflows (such as natural resources) have become incorporated into global market flows, as well as the extent to which vulnerable local populations may be just as dependent on extraction activities for their survival as warlords are for their arms budget. In light of such factors, Taylor argues that considerable advantages may be derived from focusing on business actors rather than states:

Like the Kimberly Process, or even UN sanctions, the Guidance seeks to exclude certain commodities from global trade flows. But there the similarity ends. Instead of obligating states, the Guidance places the responsibility on business to manage their supply chains. Instead of relying on a certification regime hobbled by a lack of state capacity, the Guidance deploys the concept of business due diligence, the practice of self-investigation and risk management in a business activity. And instead of targeting a commodity based on its association with rebel groups – a definition that has plagued the Kimberly Process, for example preventing it from taking action where abuses are committed by state armed forces, as in the case of Zimbabwe – the Guidance in effect focuses on the problems of conflict financing and human rights abuse associated with mineral extraction, regardless of whether the perpetrator is a state or non-state armed group.

In effect, the Guidance places the onus on businesses to show they are not financing conflict or contributing to human rights abuse through their sourcing of minerals. And nothing in the Guidance prevents states from regulating this responsibility to conduct due diligence, which is precisely what the US has done with the conflict minerals provision of Dodd-Frank, a measure the EU is now considering.

The combined reliance on traditional state regulation and more novel forms of corporate self-regulation is promising though not, as Taylor points out, unproblematic. However, even at this early stage, there may be timely lessons that could be drawn by the UN Food and Agricultural Organization (FAO) in its current efforts to develop a set of ‘demand side’ standards regulating the conduct of actors participating in large-scale land investments in developing countries. This process should be facilitated by the fact that the FAO has already launched a set of ‘supply side’ guidelines for countries that are the object of such investment. While the latter clearly addressed state authorities disposing over targeted land, the former will need to take into account the role of both state and powerful non-state actors whose investments are driving the global land-rush.

Finally, in a timely reminder that such policies and safeguards are often only as effective as the advocates that monitor their application, Inclusive Development International issued a press release announcing a complaint before the Asian Development Bank’s Compliance Review Panel. The complaint alleges a violation of the Bank’s involuntary settlement policies with regard to communities affected by an ADB-funded railway rehabilitation project in Cambodia (on which, see Natalie Bugalski’s guest postings here and here). As such, it recalls the ongoing controversy in Cambodia over the World Bank’s attempts to act on a finding by its own Inspection Panel of a violation of its Resettlement Policy.