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.

Housing, Land and Property Issues and the Response to Displacement in Libya – A Summary

Introduction

One of the least well understood but most potentially destabilizing political issues in the new Libya is the ongoing plight of about 70,000 internally displaced persons (IDPs). Most of these IDPs were collectively targeted for expulsion from their home areas during the 2011 uprising on the basis of their imputed support for the Gaddafi regime. As such, they have been subject to ongoing harassment and human rights abuses and frequently face strong and violent resistance to their return from neighboring communities.

The situation of such ‘targeted’ IDPs is exacerbated by their inability to access their homes and property, which have often been looted, destroyed or occupied. These ‘housing, land and property’ (HLP) issues present a further violation of IDPs’ human rights as well as a practical obstacle to the achievement of durable solutions for their displacement. A second key HLP issue in Libya relates to the current shelter needs of those internally displaced in connection with the 2011 uprising. The Libyan authorities are responsible for meeting the humanitarian needs of IDPs, including shelter that fulfills the key criteria such as safety, habitability and tenure security.

Lurking behind all of these essentially humanitarian HLP concerns is a much broader political question related to property relations in the post-Gaddafi era. Beginning in the 1970s, the Gaddafi regime imposed a sweeping redistribution of property, transforming tenants into the owners of their apartments without immediate guarantees of compensation to affected landlords, and granting favored tribes land grants and preferential access to public infrastructure and utilities. While the Gaddafi-era laws that allowed these confiscations have been swept away, the question of how to address their ongoing consequences remains one of the most divisive issues facing the leaders of the new Libya.

In keeping with these concerns, the UNHCR Representation in Libya commissioned a report by Rhodri C. Williams, independent expert in order to inform their efforts in supporting the national authorities in providing assistance and protection to refugees, returnees and internally displaced persons (IDPs).

The Legal Framework

During the four decades between the 1969 coup that brought Gaddafi to power and the 2011 uprising that deposed him, all prior property relations were overturned in a manner that provided neither stability nor legal certainty in their place. After seizing power in September 1969, Colonel Gaddafi identified property redistribution as a means of both pursuing social justice and consolidating his own power by weakening potential rivals. The primary legal instrument used by Gaddafi to effect these aims was Law No. 4 of 1978, which redistributed all rental property ex lege, transforming tenants into the owners of their homes against an obligation to pay to the government mortgage payments lower than their previous rents. Similar measures were taken with regard to agricultural lands, while private businesses were effectively nationalized.

By the late 1990s, Colonel Gaddafi’s son and presumptive heir, Saif Al-Islam Gaddafi, had become associated with a number of efforts to improve the regime’s standing, including a massive new housing construction program as well as an attempt to assuage lingering resentment over Law No. 4 by providing compensation to dispossessed apartment owners. However, such measures were deemed insufficient even at the time, and one of the most persistent demands facing the new authorities in Libya has been the restitution of all property confiscated by Gaddafi.

Although Law No. 4 has been put out of force by the interim Constitutional Declaration adopted by the National Transitional Council of Libya (NTC), the new authorities in Libya have yet to commit themselves to a position on restitution. The Libyan authorities have also done little to ease the plight of IDPs in Libya, with humanitarian response left largely to civil society and quasi-governmental organizations along with Local Councils. However, several laws on transitional justice have been adopted. However, these laws have tended to offer legal redress exclusively to victims of the Gaddafi regime, implying that communities targeted for attacks and expulsion from their homes as a result of their alleged loyalty to the Gaddafi regime (including the majority of current IDPs) will not be recognized as victims.

Future legislation and policies on humanitarian response to displacement, property relations and transitional justice will need to reflect the human rights treaties ratified by the Gaddafi regime and still binding on the current authorities. In applying such human rights to the situation of IDPs, the Libyan authorities should take note of the Guiding Principles on Internal Displacement, one of the most broadly accepted and widely applied best practice standards adopted by the UN. Another means of ensuring that domestic response complied with Libya’s international obligations would be ratification of the new African Union Kampala Convention on internal displacement.

Categories of displaced persons

The report distinguishes between three key categories of displaced persons in Libya. The first and most important is comprised of “targeted” internally displaced persons (IDPs) unable to return to their homes due to resistance from neighboring communities. The second is “non-targeted” IDPs who remain unthreatened but uprooted within their area of 2011 residence pending reconstruction of war-damaged homes. A third group comprises refugees and other non-citizens that have been evicted or face the risk of eviction from their homes.

Targeted IDP communities constitute the largest of the three groups and present the greatest challenges. In light of the ongoing possibility of violent resistance to their return, many can be said to be in a situation of ‘protracted’ displacement, in which the lack of near term possibilities for reintegration into society increases both their vulnerability and their dependence on aid. The housing, land and property rights of targeted IDPs are doubly compromised, as they not only cannot access their pre-conflict homes and lands but also enjoy few guarantees for security of tenure in their current places of shelter.

A significant number of IDPs in Libya are referred to as “non-targeted” because they remain in and are supported by their local communities, and are only displaced as a result of war damage to their homes. The largest non-targeted IDP communities are in the two towns most damaged during the fighting in 2011: Misrata, (700 households) and Sirte (2000 households). In both cases, obstacles to return are primarily technical, providing the new government with an opportunity to demonstrate both effectiveness and even-handedness in organizing reconstruction efforts. A third group of concern are refugees and other non-citizens, who were generally required in the past to rent homes from the state on the basis of work contracts. Since the 2011 uprising, residents of such housing have been at high risk of evictions.

Recommendations for Humanitarian Response

The Libyan authorities should take more decisive steps to address the humanitarian plight and tenure insecurity of displaced persons. An emphasis on human rights-based approaches to displacement may help overcome both the technical complexities and political sensitivities related to displacement and dispossession. It is crucial to recall that IDP communities are composed of individuals, some of whom must be prosecuted for their crimes, but many more of whom are not only innocent but extremely vulnerable and in need of assistance to meet their basic needs and reintegrate into society. Specific recommendations for implementing a rights-based approach include the following:

1. Apply the UN Guiding Principles on Internal Displacement: The UN Guiding Principles are a well-established, field-tested standard on how to apply human rights rules in humanitarian response to displacement. Specific measures that could be taken to apply the Guiding Principles in Libya include awareness-building and training, as well as advocacy for rights-based approaches

2. Promote a consistent national policy response to displacement: Given the scope of internal displacement in Libya and the challenges to reintegrating those affected, effective responses will need to be based on a sound regulatory framework. A Libyan policy should identify the current protection needs of IDPs in Libya and the measures required to address them, based on consultation with IDPs, as well as the respective roles of government and civil society actors.

3. Support a joint advocacy platform to promote official application of international standards through the formation of a broad coalition of national (and possibly international) humanitarian actors and civil society organizations.

4. Promote legal security of tenure for IDPs in their current shelter: Providing shelter to IDPs is both a humanitarian and human rights obligation. Human rights standards help provide criteria for humanitarian shelter, including security of tenure, or protection from arbitrary evictions.

5. Lay the ground for property remedies and durable solutions for targeted IDPs: In light of ongoing security problems in Libya, safe return and repossession of properties left behind by IDPs are not yet feasible in most cases. Under current circumstances, IDPs should be encouraged to be creative and persistent in developing ways to document their property claims and collectively consider how these relate to their preferences in terms of long-term durable solutions. However, until an appropriate mechanism exists for IDPs to effectively assert their claims, they should not needlessly engage in activities that may risk prejudicing their chances of receiving effective property remedies or being able to sustainably return.

6. Prioritize rapid and even-handed reconstruction assistance for non-targeted IDPs who remain resident in their own cities pending reconstruction of their war-damaged homes. Reconstruction can promote reconciliation by recognizing that there were victims on both sides of the recent conflict whose basic needs must now be attended to in order to move forward.

7. Support security of tenure for refugees and other vulnerable non-citizens facing evictions from their homes in Libya by ensuring their inclusion in humanitarian aid programming where they have been evicted and seeking to protect their right to tenure security in their homes in the future.

Recommendations for Legal Reform

In addressing property claims related to Gaddafi-era confiscations, appropriate sensitivity to the needs of IDPs, refugees and other vulnerable groups in society will be crucial to ensuring an equitable and sustainable outcome. The rules developed for addressing this historical legacy should facilitate a balanced approach that takes into account not only the historical rights of owners but also the interests of the broad swathe of Libyan society that may now be dependent on the long-established results of Gaddafi-era acts in order to meet their most basic housing and other needs. The recommendations for longer-term legal reform in this section include the following:

1. Support effective property remedies for the displaced: Any proposed solution for the displacement of targeted communities in Libya must respect two principles in order to be compliant with relevant international standards. First, the choice of destination must be left to displaced individuals, households and communities. Those IDPs who wish to go back to their homes must be supported in overcoming obstacles to return and those who wish to remain where they are displaced or resettle in a different part of the country will also require support until they have integrated with local communities.

Second, effective legal remedies must be provided in cases where IDPs have been dispossessed of their homes, lands and property, regardless of whether or not displaced owners choose to return or not. IDPs’ claims are strongest with regard to property they had not only acquired enforceable rights to but also exclusively and continuously used as homes or to meet other fundamental needs (such as economic livelihoods).

2. Ensure that IDP’s property remedies are anchored politically as well as legally. In implementing international standards on durable solutions for IDPs, the new government should engage with the concerns of local authorities and communities that remain opposed to property remedies and return. Such remedies are likely to be more effective (and return more sustainable) if they are at least tolerated by or at best agreed with the local authorities and communities at the IDPs’ place of origin.

3. Prepare to support local integration of IDPs. Significant numbers of IDPs may ultimately opt not to return or to have their properties restored. As long as there is no prospect for IDPs to be able to safely return, they must be provided shelter and can be expected to seek greater local integration where they are displaced. In both local integration and return cases, local communities affected by IDPs decisions will need to be sensitized to the rights of IDPs, and government programming to ensure the reintegration of IDPs into society should provide tangible benefits to surrounding communities as well.

4. Ensure that land and property issues are included in the transitional justice debate. Long-term respect for the housing, land and property-related rights of displaced persons and minorities is linked to transitional justice and national reconciliation. The UN Support Mission in Libya (UNSMIL) recently proposed reviewing earlier approaches to transitional justice in Libya in order to allow a process that would not only be based on broad consultation but also capable of addressing historical root causes through a recognition of injustices committed by both sides in connection with the 2011 conflict. Such a process could be a crucial step in the rehabilitation of targeted communities, creating the political conditions to end their displacement.

5. Develop a joint advocacy platform in favor of nuanced approaches to transitional property issues. The resolution of the property issues of IDPs is closely linked with the broader question of how Gaddafi-era property confiscations should be addressed. For instance, many targeted IDP communities were granted rights to significant parts of their land by acts of the Gaddafi regime. The transitional property issue should be resolved in a manner that both redresses the worst injustices from the Gaddafi era and avoids causing serious social instability. Specifically, the property issue should be resolved according to rules of decision that take into account both the rights of dispossessed claimants and the interests of subsequent users of claimed properties.

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