Monthly Archives: November 2012

Kyrgyzstan cracks down on the ICG in Osh

In case anyone was wondering why TN guest-author ‘Kaigyluu’ has opted to remain anonymous (or pseudonymous?), a statement by the International Crisis Group (ICG) today may provide some insights. It seems that Kyrgyzstan’s State Committee for National Security (SCNS) has not only harassed five people who recently spoke with an ICG analyst in the country but also interrogated the analyst himself.

In their twelve years of presence in Kyrgyzstan, the ICG states that they have “never faced this level of harassment.” They also allege numerous violations of Kyrgyz law in the manner in which their analyst was treated:

He was denied access to a lawyer. The SCNS officers refused to identify themselves by either rank or name. He was not shown any documents authorising his detention and the search of Crisis Group’s vehicle. His laptop, notebook and other items were confiscated. The SCNS refused to provide him with documentation of any kind. Repeated attempts by Crisis Group’s lawyer to obtain these documents from the Office of the Prosecutor General in Osh have also failed.

For those who have read Kaigyluu’s recent posts (critiquing both local policies and international responses to the 2010 violence in Kyrgyzstan), it will be unsurprising that this harassment took place in Osh, the main city of Kyrgyzstan’s ethnically troubled south. Care will clearly need to be taken to ensure that the ICG’s local interlocutors are not exposed to further perils for having spoken with the Group’s analyst. However, these incidents were clearly meant to tamp down criticism of Kyrgyzstan’s default policy of punishing the victims of ethnic violence. It is to be sincerely hoped that they will have the opposite effect.

Two weeks after Gotovina, the ICTY acquits Haradinaj defendants

by Rhodri C. Williams

Just as the controversy surrounding the recent ‘Gotovina decision’ by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) was beginning to subside, another bombshell. In this case (involving a re-trial), the Trial Chamber yesterday acquitted three Kosovo Albanians accused of torture and murder against Serbs and others in western Kosovo in the late 1990s, ordering their immediate release.

This decision will no doubt be turned inside out today in the blogosphere, and rightly so. Taken together with the recent Gotovina judgment, it is part of the swan song of an institution created with great hopes (mixed with a degree of healthy skepticism from some quarters) just as the great post-Cold War wave of belief in the restorative power of human rights and international justice arguably crested.

Having endured into the post 9-11 era (in large part due to inexplicable delays in acquiring its most prominent suspects), the Tribunal’s jurisprudence remain not only relevant to the development of broader international criminal law, but also – for better or for worse – to both the consolidation and destabilization of national narratives in countries forged in wars now fought an entire generation ago. For those who did not experience these wars but whose political reality remains shaped by them, the Court’s decisions on individual responsibility for past crimes are likely to be taken as evidence of collective vindication or collective stigmatization, raising a real risk that the legacy of the ICTY may be to perpetuate rather than lay to rest wartime animosities.

This in itself is not a critique of the ICTY. The Tribunal can hardly be blamed if far more is read into their decisions than either they or those who shaped their mandate ever intended. However, it does place a particular onus on the Court to be seen to act professionally and impartially. Observers such as Marko Milovanovic have argued that the Appeals Chamber failed this test in Gotovina, overturning a unanimous and comprehensive Trial Chamber decision by means of a rancorously split judgment only sixty pages long.

So what impact can Haradinaj be expected to have on the debate? At first blush, both the parallels and differences with the Gotovina judgment are striking.

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Kyrgyzstan property issues update, part 2 – Unen-durable Solutions

by Kaigyluu

‘Kaigyluu’ is the pseudonym of a longtime TerraNullius reader with broad experience working on housing, land and property (HLP) and legal reform issues in many countries post-socialist, post-conflict or both. Having provided an earlier briefing last year on the aftermath of the 2010 ethnic riots, Kaigyluu yesterday updated TN readers on the local and regional politics of rebuilding Osh, and today addresses the policy choices of international actors involved in humanitarian response and reconstruction.

While housing, land and property (HLP) rights were put on the agenda in the immediate aftermath of the June 2010 inter-ethnic violence in South Kyrgyzstan, the HLP process was complicated (a) by a lack of clear rationale or objective and (b) strategic choices made at the outset.

With respect to the first point, based upon an initial assessment by the Global Protection Cluster (GPC) conducted in the wake of the June events, UNHCR focused first on the construction of shelter and then on legal assistance to restore HLP documents lost or destroyed. The assumption upon which provision of such legal aid was based proved faulty, in that it was soon discovered that over 80% of affected households had never had proper documentation. And so the HLP project concentrated on obtaining documentation for those whose homes were destroyed, as well as registering the newly constructed replacement shelters.

Nevertheless, the justification for securing documentation only for those whose homes were destroyed, whereas the majority of the affected population – and, indeed, the population at large – also lacked such documentation, was undermined. The project might have been realigned – and was, ad hoc, to provide documents to those whose homes were threatened with expropriation – but the follow-up scoping mission recommended by the GPC to conduct a full situational assessment was never carried out.

This leads into point (b) on strategic choices, namely that the international community chose to channel their support through the State Directorate for Reconstruction and Development for Osh and Jalal-Abad Cities (‘SDRD’ – previously, the State Directorate for Rehabilitation and Reconstruction or ‘SDRR’) set up by the central government, and headed by current Prime Minister Jantoro Satybaldiev. The international community decided to bypass the Osh mayor, Melis Myrzakmatov – understandable, given his nationalist (and often erratic) rhetoric.

Myrzakmatov was opposed to anything directed by Bishkek: an opposition entrenched when he successfully resisted the attempt of the interim government to remove him. Unfortunately, in the case of reconstructed (and, indeed, all) housing, the issuance of building permits was controlled at the municipal level. Therefore, in Osh, construction permission was never granted. And so, the majority of the shelters constructed there remain unregistered; whereas, in Jalal-Abad, where the mayor was successfully replaced (twice) by Bishkek, authorities were more cooperative, building permission was issued, and registration proved relatively simple.

More broadly, apart from reliance on the SDRD, there a choice by the international community – perhaps by default – to opt for a ‘rule of law’ approach, as opposed to one driven by the need for a recognition of rights. That is, the reconstruction and HLP process was channelled through the existing domestic land and housing regime. As such, it became vulnerable to the inefficiencies or gaps in the system, as well as any political or personal manipulation of it.

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Kyrgyzstan property issues update, part 1 – Who’s afraid of the big bad master plan? Rebuilding Osh’s mahallahs in brick

by Kaigyluu

‘Kaigyluu’ is the pseudonym of a longtime TerraNullius reader with broad experience working on housing, land and property (HLP) and legal reform issues in many countries post-socialist, post-conflict or both. Having provided an earlier briefing on the politics of property in southern Kyrgyzstan after the 2010 ethnic riots, he, she or it now follows up with an update in two parts. Part one focuses on the local and regional politics of rebuilding Osh, while part two, tomorrow, addresses the policy choices of international actors involved in humanitarian response and reconstruction.

International attention on Kyrgyzstan, limited as it was during the Tulip Revolution (Redux) of April 2010 and inter-ethnic riots that followed two months later in the south of the country’s geologically and politically unstable Ferghana Valley, has long since waned and turned elsewhere. Indeed, with the Western military drawdown in Afghanistan, the importance of Central Asia – exemplified by the bidding-war between the US and Russia over the Manas airbase outside of Bishkek – has diminished correspondingly, while the problems in the region continue to fester and grow.

At least in terms of rebuilding and reconciliation (including international reconstruction assistance) in the aftermath of the June 2010 clashes between ethnic Kyrgyz and Uzbeks in the ‘southern capital’ of Osh, as well as the nearby city of Jalal-Abad, progress would seem to be consolidating. The latest government shuffle, following the collapse of the yet another parliamentary coalition, saw the appointment of Jantoro Satybaldiev as Prime Minister. Satybaldiev, a former Head of the Osh Administration, led the central government’s reconstruction effort following the June 2010 clashes. He was a key partner of UNHCR, the Asian Development Bank (ADB), and other international actors in this, and seen as a counterweight to perceived hard-line nationalists in the south, such as Osh’s current mayor, Melis Myrzakmatov.

Not only can Satybaldiev’s ‘promotion’ be construed as a reward for his work in the South, it is also hoped that his elevation will give him the authority to overcome the last hurdles to secure the housing, land, and property (HLP) rights of those displaced by the June 2010 events.

A ‘friend’ of the post-2010 reconstruction effort is sorely needed in high office. This past summer, the City of Osh began long-threatened expropriation of land and the demolition of at least two dozen houses, as well as several business premises, in order to widen roads: this, despite ‘iron-clad’ assurances to donors that reconstructed houses would be not be touched. It is feared that this is but the precursor for implementation of a new urban plan: one that is rumoured to include the replacement of the traditional Uzbek enclaves with ‘modern’ apartment blocks and, amongst the conspiracy-minded, one that is said to mirror – or even predate and predict – the patterns of supposedly spontaneous destruction that occurred from 11 to 14 June 2010.

The international community funded the reconstruction of almost 2,000 homes damaged or destroyed during clashes. UNHCR and ICRC led the emergency response, providing two-room (28 m2) shelters for affected households before the onset of winter in 2010. The ADB provided an additional $24 million to expand (up to 100 m2) and complete 1,500 of those shelters in a second phase of reconstruction in 2011-12.

However, optimism over Mr. Satybaldiev’s elevation may be misplaced. It is debatable whether the new Prime Minister will wish to expend precious political capital to protect those affected persons, the overwhelmingly majority of whom are from the minority (but substantial) Uzbek community. He seems still to accept, if not actively encourage, the inevitable replacement of the mahallahs – the traditional neighbourhoods composed of walled family compounds favoured by the Uzbeks in the centre of Osh – with high-rise apartment blocks. Off the record, even Mr Satybaldiev’s patron, President Almazbek Atambayev is said to have expressed puzzlement and mild exasperation at the international community’s obsession with preserving and reconstructing the mahallahs, in the face of the inexorable march of modernisation and progress.

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Draft Land Rights Policy Statement by the Land Commission of Liberia

by Caleb Stevens

Caleb Stevens is a John Snow Institute Liberia Fellow who works with the Republic of Liberia Land Commission

The Liberian Land Commission has just released a draft Land Rights Policy Statement for public consumption. It is the first such policy in Liberia’s history and creates four fundamental land tenure categories: Government Land, Public Land, Customary Land, and Private Land. In addition, it provides for Protected Areas across these categories to be conserved and managed for the benefit of all Liberians. The Policy also touches on issues of land management, use, and administration, with more detail to follow in separate Land Administration and Land Management Policies.

The document is still in draft form as consultations are getting underway, but you may access the Policy by clicking on this link (pdf).

Comments or questions are welcome; please submit them via email to landcommissionpolicy@gmail.com.

Post-conflict property restitution in Kosovo: A continuing challenge

by Guido van Heugten

Guido van Heugten graduated from the ‘NOHA’ masters program in International Humanitarian Action at Uppsala University). He wrote his thesis on ‘Post-Conflict Property Restitution in Kosovo’.

Even over a decade after the violent conflict of 1999, Kosovo is often still referred to as a ‘hot potato’ that has been passed on from the UN to the EU, which is currently desperately searching for ways to find a resolution for the dispute between the governments in Belgrade and Pristina. The recently elected Serbian president Tomislav Nikolic has stated that Kosovo Serbs are currently living under threat of genocide and that he would not rule out a partition between ethnic Serb and Albanian regions. UN Secretary General Ban Ki-Moon, on a visit to Kosovo, tried to focus more on common challenges and opportunities and made another attempt to stress the importance of dialogue in order to find resolution to the regions issues.

The population of Kosovo is indeed still much divided between the lines of ethnicity and identity, fuelling a volatile security situation, especially in the Northern provinces surrounding the divided town of Mitrovica. Together with resolution of the political problems relating to Kosovo’s continuing status as a UN protectorate, it is crucial that serious efforts are being made by all stakeholders to finish the property restitution process and ensure respect for housing, land and property (HLP) rights in the context of conflict resolution efforts in the region.

Due to the 1990s trends toward increasing displacement and internal conflicts and the decreasing will of Western states to provide asylum, voluntary return (as opposed to resettlement) became the preferred policy when dealing with displaced populations in post-conflict contexts. This is also expressed by the development of international policy around that time, culminating in the adoption of the ‘Pinheiro Principles’ on Housing and Property Restitution for Refugees and Displaced Persons in 2005.

The 1998-99 conflict in Kosovo caused immense damage to property, which the Office of the High Commissioner for Human Rights determined was not solely an act of vandalism, but an attempt at wiping out signs of the presence of entire populations, including their national and cultural identity.[1] In most UN peacekeeping missions, HLP rights usually do not play a very central role, even though land and property issues are often an underlying cause of conflict. Kosovo however, has been one of the few places where the UN has decided to give property restitution an important role in the peace-building process.[2]

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Another UN peacekeeping meltdown in the make … but who’s got time?

by Rhodri C. Williams

Hat tip to Shane Quinn for forwarding me an alarming Guardian commentary by Simon Tisdall on the humanitarian meltdown presumably taking its leisurely course as I write this. An encampment of 60,000 wretched displaced persons “emptied overnight” in the face of an advancing rebel army covertly sponsored by neighboring states intent on natural resource extraction. The UN deeply committed to a corrupt and abusive national army that is melting away along with the displaced. Some peacekeepers futilely attacking the rebels from helicopters as the rest nervously wait for them to arrive.

Its Goma, in eastern Democratic Republic of Congo (DRC). But how is anyone supposed to keep track right now, with Syria and now Gaza and everything else, like the inundation of Haiti and destruction of its food for next year completely overshadowed. And anyway, eastern DRC is the emblematic basket case, if its been this bad for this long, how could it get worse? If you want a vision of the depths of human misery and debasement, look at the situation there four years ago. What could change?

What worries me – beyond the profound waste of it all – is the UN being up to its neck in this. Monusco is a party to a conflict most people couldn’t locate on a map let alone understand, with a long hangover from the Rwandan conflict, the transplantation whole of one of the world’s most vicious rebel groups from Uganda, and natural resources galore to fuel and pay for people’s indulgence in their worse instincts, seemingly until the end of time. And all this at a time when the UN is still reeling from having failed – profoundly – to take steps that might have saved at least some of the 40,000 civilians mown down in 2009 during the final stages of the war in Sri Lanka.

So maybe Goma will be the next public failure of the UN, ironically taking place just a few miles away and a bit shy of two decades after its first great post-Cold War stagger in Rwanda, in 1994. Or maybe it won’t. Negotiated resolution, withdrawals, resumption of the miserable status quo. At times like this, I can’t even formulate the questions, let alone think of the answer.

Tweeting, for my sins

A bit over a year after my colleague Greg Kitt urged me climb aboard the twenty-first century, the dime finally dropped and blimey if the @Terra0Nullius tag had not waited faithfully for me, lo these many months. So I will cling fiercely to my old Nokia with no camera, no 3g, and bluetooth strictly in theory as my last remaining shred of Luddite integrity while I invite you to follow me as I blunder into the unknown arboreal delights of the twittersphere.

Breaking news – Gotovina and Markač convictions overturned (UPDATED)

Update 19 November 2012: I am very grateful to Mark Kersten at the Justice in Conflict blog for inviting me to expand upon the below piece and guest post it there. For a fuller treatment of the issues arising from last Friday’s Gotovina judgment, readers are therefore referred to my post at Justice in Conflict, entitled “The aftermath of the ICTY’s Gotovina Trial: Due process and Historical truth“.

by Rhodri C. Williams

In April 2011, Trial Chamber I of the International Criminal Tribunal for the former Yugoslavia (ICTY) convicted two Croatian Generals, Ante Gotovina and Mladen Markač to lengthy jail terms for their parts in planning and carrying out ‘Operation Storm’, a 1995 offensive that resulted in the flight of 250,000 Croatian Serbs. Today, in what has been described as “one of the most comprehensive reversals of the tribunal’s 19-year history”, the Appeals Chamber eviscerated the Trial Chamber’s findings and ordered the immediate release of both defendants.

This shock reversal is likely to generate intense legal and political debate, with Serbian Prime Minister Ivica Dačić having immediately claimed that it confirms that the ICTY is “not a court” but rather “fulfills pre-determined political tasks.” According to the summary read out in court this morning, the Appeals Chamber accepted the defense’s key arguments, first that the shelling of four Serb-held towns at the outset of the offensive had not been unlawful, and second, that absent unlawful shelling, the Trial Chamber’s finding of a ‘joint criminal enterprise’ (JCE) to permanently remove the Serb population of the region could not stand.

As described in TerraNullius at the time of the Trial Chamber decision, the finding of the existence of a JCE by the Trial Chamber allowed the defendants to be imputed guilt for a range of discriminatory actions and policies that accompanied the offensive including the ex lege cancellation of urban-dwelling Croatian Serb refugees’ rights to their ‘socially owned’ apartments. As set out in the summary of today’s decision (page 4), the rejection of a JCE removed this link:

With respect to liability via JCE, the Appeals Chamber observes that the Trial Chamber’s conclusion that a JCE existed was based on its overall assessment of several mutually-reinforcing findings, but the Appeals Chamber, Judge Agius and Judge Pocar dissenting, considers that the Trial Chamber’s findings on the JCE’s core common purpose of forcibly removing Serb civilians from the Krajina rested primarily on the existence of unlawful artillery attacks against civilians and civilian objects in the Four Towns. While the Trial Chamber also considered evidence concerning the planning and aftermath of the artillery attacks to support its finding that a JCE existed, it explicitly considered this evidence in light of its conclusion that the attacks on the Four Towns were unlawful. Furthermore, the Trial Chamber did not find that either of the Appellants was directly implicated in Croatia’s adoption of discriminatory policies.

When the dust settles, it may well turn out that the Trial Chamber went too far with its JCE finding and that the Appeals Chamber was right to tighten the scope of the inquiry to focus on what criminal acts could be directly and unambiguously attributed to the defendants in this case. On the other hand, few serious observers doubt that the highest political and military leadership in Croatia at the time would not have lost much sleep if not one Serb had ever returned to the region. However, as one might fear, the Court’s narrow ruling on General Gotovina and Markač has quickly been read as a blanket vindication of Croatia’s conduct and aims during its 1991-95 war. As reported in the Guardian:

Gotovina’s defence lawyer, Greg Kehoe, said the appeal verdict demonstrated that Croatia’s Operation Storm in 1995 to regain control over the last Serb-run enclaves on its territory had been entirely legitimate under international law.

“This judgment vindicates that operation as a proper and just attempt to bring back that land into Croatia. More importantly, it vindicates what kind of soldier General Gotovina was,” Kehoe said.

At a broad level, the Gotovina case may hold the same lessons on the limitations of international criminal law that the European Court of Human Rights’ Cyprus cases have demonstrated with regard to human rights law. Litigation inevitably and necessarily disappoints by applying a zero-sum approach to complex historical problems in which all parties have almost always been cast both in the role of victims and victimizers. To treat Gotovina 2 as an absolution of Croatia’s well-documented sins is patently absurd and will only complicate the way to a long overdue regional reckoning with the past. Ultimately, Croatia can only legitimise its own narrative of victimhood by recognising the validity of those of its victims.