Monthly Archives: February 2013

Politics as land disputes by other means? Kenya braces itself for elections (updated)

by Rhodri C. Williams

Kenyans go to the polls next Monday in the culmination of an entire political season spent building institutional guarantees against a repeat of the appalling ethnic violence and mass-displacement that followed the country’s last elections in 2007. Prevention measures ranging from a new 2010 Constitution to a 2012 law criminalizing internal displacement have been earnestly discussed and adopted in the intervening years.

However, the breathtaking fact remains that some of the leading candidates in the current election may be responsible for the violence of the last round – and that their eventual election may be used as a pretext to effectively shield them from accountability for these crimes before the International Criminal Court (ICC).

The resulting ‘bizarre’ nature of the first debate between Kenya’s presidential candidates was captured by Mark Kersten at Justice in Conflict, who also reflected recently on the underlying question the ICC-Kenya brouhaha raises – namely whether transformative political change has supplanted individual criminal responsibility as at least the implicit primary aim of international justice.

There is certainly a case for such an approach, which arguably only transposes the consequences of the individual criminal behaviour of political leaders into the novel but expanding terrain of the state responsibility to protect (see Mark Kersten again, here). If the results of an individual leader’s acts are now recognized as giving rise to a threat to international peace and security, in other words, why should the rest of the international community sit around and twiddle its thumbs?

On the other hand, principled arguments against such an expansive view of the aims of international justice include the risk of politicization of the ICC through selective support of regime change by gatekeeper institutions such as the UN Security Council. However, beyond this concern about the tail wagging the dog, Kenya may now have usefully exposed a major practical limitation on politically transformative international justice. For example, in an otherwise highly cogent piece on the upcoming elections in Kenya on OpenDemocracy, Clare Castillejo argues for what some may view as closing the barn doors after the horses have bolted:

So what can the international community do in these final days before the polls? Firstly it must send strong signals that politicians who incite violence will face international sanctions such as asset freezing, travel bans and – where possible – prosecution. Kenya’s international partners (particularly the US, UK and the EU) and its East African Community neighbours must be prepared to speak out forcefully at the first signs of electoral fraud or organised political violence.

Got that? Politicians now hoping to elude international accountability for past electoral violence by running for elected office are to be prevented from resorting to further violence by threatening them with accountability for such acts. Is that entirely convincing? I do not mean to be facetious, and I am very concerned for Kenya, but is doubling down on a concept of accountability that has proven elusive in practice likely to be effective as a means of protection? Perhaps it will, if applied as part of a unified campaign of international condemnation. But if it does not, the result may further undermine the effectiveness of accountability as a check on such crimes.

Humanitarians are also talking prevention, but in a slightly more nuanced (some might say ambiguous) way. Continue reading

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Terra Nullius no more – Australia approaches constitutional recognition of its indigenous population

by Rhodri C. Williams

The BBC yesterday picked up on a curious piece of legislative news from Australia, with the lower house of Parliament having unanimously passed a bill presenting a constitutional IOU to the country’s indigenous population. In effect, the legislator agrees to lead from the front in seeking to drum up popular support for constitutional recognition of Aborigines and Torres Straits Islanders, and to act on that support as soon as it is there:

“I do believe the community is willing to embrace the justice of this campaign because Australians understand that indigenous culture and history are a source of pride for us all,” Australian Prime Minister Julia Gillard said. “This bill seeks to foster momentum for a referendum for constitutional recognition of Aboriginal and Torres Strait Islander peoples.”

The bill comes as part of a longer term process of reconciliation dating back to the early 1990s, when a Royal Commission was set up to examine Aboriginal deaths in custody and the Australian High Court belatedly disowned the terra nullius doctrine that had premised the takeover of aboriginal land on the demeaning idea that it was not truly occupied by other human beings. This tradition of emphatic non-recognition of Aboriginal peoples was symbolically reversed in 2008 by then-Prime Minister Kevin Rudd’s groundbreaking apology to the Aboriginal and Torres Strait Islander peoples:

We today take this first step by acknowledging the past and laying claim to a future that embraces all Australians. …. A future where all Australians, whatever their origins, are truly equal partners, with equal opportunities and with an equal stake in shaping the next chapter in the history of this great country, Australia.

The present bill is admirably short and pithy. In its Article 3, entitled ‘Recognition’ it sets out a series of propositions that are revolutionary only in their self-evidentness:

(1) The Parliament, on behalf of the people of Australia, recognises that the continent and the islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples.

(2) The Parliament, on behalf of the people of Australia, acknowledges the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters.

(3) The Parliament, on behalf of the people of Australia, acknowledges and respects the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.

It then goes on to mandate the Prime Minister to “consider the readiness of the Australian public” to support a constitutional referendum on recognition of Aboriginal peoples and take steps to that effect within 12 months from its entry into force. The explanatory memorandum goes on to explain in somewhat more detail the thinking behind this somewhat unorthodox legislative approach: 

This Bill reflects an intention to pursue meaningful change to the Constitution that echoes the hopes and aspirations of Aboriginal and Torres Strait Islander peoples and unites the nation.  It is one part of the ongoing conversation that needs to happen in the lead up to constitutional change. In particular, the Bill will enable all Australians to become familiar with formal recognition of Aboriginal and Torres Strait Islander peoples ahead of constitutional change.

A review provision sets out a process for Parliament to consider next steps towards constitutional recognition, while a sunset provision ensures that legislative recognition does not become entrenched at the expense of continued progress towards constitutional change.

The Bill is not intended to be a substitute for constitutional recognition.  ….  The Bill does not restrict the scope of future issues for debate in regards to constitutional recognition of Aboriginal and Torres Strait Islander peoples.

In the annals of the law and society debate, this Bill may come to represent something of a hallmark. As a legislative attempt to encourage consensual change rather than simply ram change home based on an argument of necessity, it stands out both in its transparency and in the relatively sophisticated mechanism it seeks to set up. It also represents a sterling example of new constitutional approaches to managing diversity that posit a more sustainable relationship through transparent, participatory and open-ended processes than through foreclosing such processes with an unalterable compact.

There is of course a risk that this type of legislation may be seen as an attempt by the Government to play for time or appease reactionary elements in society. On the other hand, accommodating minority demands always imposes a cost on the majority (or in any event prevents the majority from externalising such costs any longer). If Australia’s current moral redistribution and its political and economic consequences are to be sustainable in a democratic system, then it is imperative that bills such as the present one help to undergird moral necessity with political consensus.

Report on property issues and displacement in Libya for UNHCR

by Rhodri C. Williams

Entering Tajoura, picture by the author

Toward Tajoura, March 2012, picture by the author

Many TN readers will be aware that I spent the better part of last Spring working for the UNHCR on a report on housing, land and property (HLP) issues related to displacement in Libya. The research involved interviews with numerous internally displaced persons (IDPs), many of the officials directly or indirectly responsible for their welfare, as well as civil society activists and legal experts. The work was undertaken throughout the north of the country, including Tripoli, Misrata, Benghazi, Sirte, Ajdabiya, Tiji, Nalut, Yefren and Kikla.

The resulting report was published earlier this Fall and includes both immediate term recommendations for humanitarian programming and longer term observations on how the process of seeking durable solutions for Libya’s displaced relates to broader dynamics of transitional justice, rule of law reconstruction and sustainable development. Accordingly, those of you who have read my earlier short piece on HLP issues in Libya will find many of the themes introduced there greatly expanded upon here. 

The report goes into some detail and is not a light read at nearly 100 pages. The Executive Summary is a bit more manageable at 15 pages and closely tracks the four part breakdown of the full paper. However, in order to help TN readers get a quick overview of the main points in the paper, I have further compressed the summary down to about five pages, reprinted just below.

A great deal of credit is due to the UNHCR country office in Libya, and particularly to Senior Protection Officer Samuel Cheung, for recognizing early on the need to understand the nexus between property issues and displacement in Libya. The UNHCR also proved farsighted in providing a mandate not only to examine the humanitarian implications of property disputes, but also to extend the analysis to take in concerns related to transitional justice, rule of law and development.

Since its local release last Fall, the report has supported efforts by both national advocates and international observers to ensure that outstanding property questions in Libya are resolved in accordance with international standards. Such efforts will be crucial to achieving an end to the ongoing and protracted displacement of entire communities collectively punished for their imputed support for the Gaddafi regime, and thereby achieving meaningful national reconciliation.

The report also underscores the need for more research and further analysis in order to ensure that the resolution of HLP issues is based on Libyan realities as well as international standards. There have been some very promising signs on this front, including the inclusion of a study on property and housing issues in a broader project related to strengthening rule of law institutions in Libya run by the Hague Institute of Global Justice, as well as plans to shortly include an updated property rights profile of Libya in USAID’s land tenure country profiles series.

In sum – this paper represents a first stab at a complex issue that is crucial to Libya’s future. I am grateful to the UNHCR for giving me the opportunity to participate in this process and look forward to any comments and feedback from TN readers.

Continue reading

TN turns three!

I would like to mark another year of blogging with a huge thanks to the many readers, guest-bloggers and commenters who have brought life to these pages. At three years old, TN is starting to look like a blue chip blog, with dependable, steady growth, a loyal readership, and no dramatic swings either way. In times like these, thats hardly the worst you could say of a weblog.

This year brought a touch over 20,000 hits, or 20% growth over last year (which in turn was up 25% from the year before). The total hits on the blog so far are about 49,300, which is probably about what Justin Bieber’s fansite gets every two minutes, but hey, we know we’re more interesting, right? The overall rate of posting is steady with about 80 posts this year, down slightly from 90 last year. Happily, guest postings jumped a notch to 25 (from 15 last year and 17 the year before).

For me, the energy put into these guest posts and the generosity of their authors are the most rewarding thing about running a blog. The ‘housing, land and property’ field sometimes feels like a large assembly of small parallel conversations. TN will never be capable of capturing the richness of all these discourses in anything like their entirety, but its nice to think that this may be becoming a space where both experts and newcomers to the field may be able to get a sense of what the others are talking about and how to get involved.

Other high points this year included doing my paltry best to make last year’s Eurovision contest uncomfortable for its autocratic hosts, guest-posting on Mark Kersten’s excellent Justice in Conflict blog, running a poll to be sure TN readers understood the name of this blog in its intended sense, expressing my amazement at the US tax service’s decision to further complicate the tangled lives of its citizens abroad, and putting my oar in once again on Cambodia’s land grab debate. An undoubted low point was being subjected to censorship for the first time, with a valued guest contributor forced to pull a much praised and timely piece.

Onward to year 4.

Franz von Benda-Beckmann

This post is to mark the passing, precisely one month ago, of Professor Emeritus Franz von Benda-Beckmann. As described in his online resume, Dr. von Benda-Beckmann defended his dissertation on legal pluralism on the year I was born and went on to produce a prodigious body of work in the field of social and legal anthropology, very much of it focused on property and tenure rights.

Our paths crossed briefly in 2004, as I set out to share Bosnia’s wisdom on property restitution with the world as a newly minted (and perhaps slightly brash) young consultant. One of my first jobs was with the International Peace  Academy (now Institute), setting up an expert meeting on how housing, land and property (HLP) issues could be further mainstreamed into the UN’s rule of law agenda. Beyond a valuable early lesson in slightly sharp consultant-handling practices from the IPA, the assignment served to rapidly open my mind to the possibility that Bosnia was only one (and a recent) thread in a rich multidisciplinary tapestry of work on property issues and conflict.

Of all the experts who attended the conference, all of whom have remained tremendous influences on my subsequent thinking on these matters, von Benda-Beckmann stood out for his ability to reframe the rest of the participants’ frame of reference. While most of the rest of us were interrogating property from the perspective of law, in other words, he was using property as a lens to interrogate law and social norms. It was quite refreshing. I seem to recall him wryly wondering at the fact that he had engaged with all the legal stuff, why had we lawyers not taken the same trouble with the anthropological corpus? To my chagrin, I still haven’t properly – but I will.

How I spent my Christmas break

One of the less memorable milestones for TN in 2013 will be the first passage of an entire month – January – without a single posting. The fact, as many of you are probably now aware, is that I have been completely taken up with some recent work with the International Legal Assistance Consortium (‘ILAC’, based here in Stockholm) on supporting rule of law efforts in Libya.

This work builds on research I did last year for the UNHCR on housing, land and property issues for IDPs and refugees in Libya, which had important rule of law and transitional justice implications. It also reflects a little bit of a return to the rule-of-law fold via another assignment last Spring, this one mapping and analyzing the emerging field of constitutional assistance for the Swedish Folke Bernadotte Academy (report to be published soon). The job with ILAC has involved core RoL concerns of the kind I started out with long ago in Bosnia – an assessment of the judicial system and the RoL institutions around it as both the objects and carriers of transitional reform.

So there have been a few changes in the make, and these have kept me very busy. One is a shift from freelance consultancy to something more in the way of a day job, and the other might be described as a shift in focus from a particular substantive concern (property) to the kind of institutions that safeguard access to and enjoyment of property and most other rights. Whatever comes of all this, I do plan to keep TN going, based on two equations. First, and most practical, less consultancy equals more disposable time (on that, more later, once I have extracted myself more fully from the hamster wheel).

But, second and more important, the times are such that I no longer feel I have to make a choice between ‘rule of law’ proper and the more humanitarian, human rights and development-oriented concerns of my consultancy career and this blog. One of the reassuring things in coming back to grips with the UN rule of law literature was the extent to which this area has explicitly become interwoven with human rights, transitional justice, and development discourses. Or as I put it in commenting on the run-up to the UNGA’s ‘high-level meeting’ on RoL last Fall, what seems striking is 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.”

And for those who persist in the belief that a step toward rule of law must entail a step away from social and economic concerns, I have another announcement that may be reassuring. As some of you know, regular TN guest-blogger Natalie Bugalski and her colleague David Pred have founded an independent research and advocacy organization, Inclusive Development International (IDI). Last Fall, I was honored to be asked to join them as an associate and quickly accepted. IDI is dedicated to supporting poor and marginalized peoples in the face of unaccountable political and economic institutions that promote harmful development activities and fail to properly implement safeguards to protect their rights. I cannot imagine a more timely and relevant rule of law challenge.