Tag Archives: Cyprus

Property issues in Libya: A reminder that the road to sustainable peace still goes via root causes

by Rhodri C. Williams

What to say about Libya? Despite the slide from the country’s post-revolutionary and chaotic new normal to civil war, it is still too early to give up hope. While Libya may have yet to scrape bottom, many of the factors that argued for a sustainable recovery from Gaddafi’s long nihilistic night remain latent. And despite the increasing subordination of Libya’s politics to the influence of regional competitions and actors, the country still remains to some degree a case apart, churning in the region’s ideological divisions without the despair-inducing ethnic and sectarian fractures that threaten the Mashriq.

It seems a very long time since my work in Libya, on property issues that stalled (at best), displacement issues that exploded, and rule of law issues that have descended to a near farce, with mass trials of senior Gaddafi regime officials wrapping up amid power cuts and procedural irregularities. By all accounts, Ibrahim Sharqieh’s grim prediction that the lustration law forced through in 2013 would be the equivalent of the Iraqi de-Baathification process has been vindicated, as the heavily militarized winners of the revolution collapsed into open conflict with each other. Then comes IS in Sirte, refugee catastrophes in the Mediterranean, and the needless death of good and selflessly devoted Libyans.

The temptation is strong in such situations to cut losses and contain damage. For Europe, for instance, earlier efforts to build up a Libyan state that could be a responsible partner on migration issues have now given way to desperate proposals to unilaterally stem migration that bypass and undermine what remains of the Libyan state. Fortunately, the UN Special Envoy to Libya, Bernardino Leon, has shown extraordinary persistence, chivvying two sides that refuse to recognize each other into 80% of a peace deal even as economic collapse looms. Another refusal to write Libya off came last month, when the Legatum Institute revived the moribund debate over property issues in Libya.

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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.

Upcoming guest postings and recent HLP resources

An apology to TN readers for the sparseness of recent postings. It has been one of those periods where the non-blog related aspects of one’s life (there are a few) predominate and I am particularly grateful to recent guest bloggers such as Anneke Smit, Yulia AliyevaRoger Duthie and Megan Bradley for keeping things interesting. Most recently, Megan Bradley has teamed up again, this time with Mike Asplet, to co-author a very intriguing piece on how the new Kampala Convention deals with property issues in durable solutions.

I would also like to take this opportunity to announce a few upcoming guest-postings. These include a piece by Guido van Heugten based on his recent thesis on property restitution in Kosovo, as well as a co-authored update on land issues and de-mining by GICHD’s Sharmala Naidoo and UN-HABITAT’s Szilard Fricska. In addition, Ayla Gürel, with whom I previously collaborated on Cyprus research, will be introducing the PRIO Cyprus Centre’s innovative new project on tracking displacement and dispossession. Finally, I am hopeful that Anneke Smit may soon provide an update to her earlier observations on indigenous land ownership in Canada. And to top it off, I gather that Kaigyluu may once again be stirred to write on HLP issues in Kyrgyzstan.

With all that out of the way, there have been a number of developments on the housing, land and property front, and I would like to highlight just a few here. I am hoping that some of the involved parties may soon guest-post in more detail on them, but wanted to introduce them in brief and without further delay.

First, the Global Protection Cluster – the flagship body of the ongoing UN-led humanitarian reform process – has just launched a new website. Having migrated from the defunct humanitarianreform.org to the confusing oneresponse.info, it now has a home of its own. In addition to several thematic resources pages, the new site highlights the four GPC sub-working groups, or ‘areas of responsibility‘, including the UN-HABITAT-led AoR on housing, land and property issues. The HLP AoR site includes a useful overview of resources including both country-related and general references. While the former in particular still suffers from some notable gaps (Colombia?), it provides a very cogent set of references for other current HLP contexts and may be useful for practitioners and researchers alike.

Second,  the most recent Annual Report by Minority Rights Group International focuses squarely on the issue of indigenous peoples’ rights to land and natural resources – an issue that has taken on an increasingly important role in light of the ongoing pressure on these assets from both national governments and private investors.

Look before you legislate? The challenges facing restitution in Libya

by Rhodri C. Williams

It seems that plans are now afoot in Libya for a full-scale program of restitution of properties nationalized and appropriated under the Ghaddafi regime. Bloomberg reported yesterday that a law envisaging a two phase process will be rolled out as soon as next month:

Libya will announce a law that will return land and buildings expropriated by late ruler Muammar Qaddafi to the original landowners “within weeks,” a senior member of the Land Ownership Committee said.

“Phase one will return unused lands, empty shops, buildings and villas taken by Qaddafi’s regime and then by the rebels to the rightful owners,” said Fawzy Sheibany, legal representative for the committee, in an interview in the capital, Tripoli. “This will mean millions of dinars can be invested in construction projects and provide employment.”

Phase two of the new law involves rehousing families residing in buildings on expropriated land and could take several years to implement fully, he said. The Ministry of Justice will deal with individual cases through a civil court.

On the face of it, there is every reason to welcome this development. The Ghaddafi-era expropriations were ostensibly meant to further public purposes but became, by all accounts, an arbitrary means of both punishing enemies and rewarding those the regime favored. Moreover, the resulting legal uncertainty in property relations was cited (in 2004) by a leading Middle Eastern law firm as a key structural obstacle to legal reform efforts during the run-up to the uprising:

As a result of abolishing real property ownership for investment purposes, the commercial real estate market has been completely distorted. There exists now a private land market and a public land market with a price gap that creates considerable uncertainty for both foreign and local investors. Compounding the problem, the [1997] Foreign Investment Law is not clear as to whether real property can be used as collateral or even can be freely transferred without government approvals. The government has announced plans to reform the laws governing property and rentals, but their scope is uncertain.

Finally, perhaps the most convincing ground for pushing for quick legislative measures is the need for the National Transitional Council (NTC) to be seen to lead from the front. In the wake of Amnesty International’s widely publicized allegations of human rights abuses by ‘out of control’ militias in Libya, anything the NTC can do to stamp its legitimate authority on matters of broad public interest appears welcome. In fact, this is a particularly important issue in regard to property. Recent reports such as this one by the Guardian indicate that the militias have become part of a pattern of spontaneous restitution, often carried out by means of violent self-help.

So what, one might ask, is not to like in a bill that serves not only justice but also economic development and political consolidation? The answer is that if it is rushed through without consultation, this bill may actually have the opposite effect, generating new cycles of grievance, reducing legal certainty and even undermining the authority of government in Libya if it proves impossible to effectively and consistently implement. Perhaps the most cogent argument for a deliberative approach to restitution for the prior regime’s confiscations is that this is to some extent a constitutional decision rather than merely a legislative one. Continue reading

A roundup of international law debates

by Rhodri C. Williams

For the international lawyers and those who take an anthropological interest in their doctrinal debates, there have been a few interesting iterations on old themes recently. They fall into three categories, namely the ‘law of peace’ debate, the ‘justiciability’ debate, and the debate over whether UK Prime Minister David Cameron’s international law advisor is a crank or a mad genius. Lets take them in that order.

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When do home and property part ways? New paper on the ECHR and the Cyprus property question

by Rhodri C. Williams

I’m very happy to announce the release of a new paper on the European Court of Human Rights and the Cyprus property issue (available here) that I wrote together with Ayla Gürel for the PRIO Cyprus Centre. The primary goal of the paper is to parse through the implications of the Court’s recent jurisprudence for the resolution of the property issue in the context of ongoing talks on the reunification of Cyprus. Our main conclusion is that the effect of these cases is to rule out some of the more extreme proposals from both sides, effectively tightening the legal parameters within which the negotiators nevertheless retain considerable discretion to arrive at a political compromise.

The analysis revolves around a series of judgments that subtly broke with the Court’s earlier caselaw on Cyprus and culminated in the March 2010 decision in Demopoulos v. Turkey. As I described in an earlier note on this decision for International Legal Materials, the Demopoulos Court rejected the Greek Cypriot position that a remedy for property violations resulting from the 1974 Turkish invasion of northern Cyprus would have to take the form of restitution except in cases where this was ‘materially impossible’. Instead, the Court approved a Turkish Cypriot property commission that was mandated to offer remedies involving compensation or exchange (rather than restitution) in a much broader range of circumstances than material impossibility.

While the implications of this decision for the broader discourse on ‘housing land and property’ (HLP) issues remains highly topical, we focus our analysis on how the Demopoulos line of decisions fits into the Court’s evolving caselaw on the application of the European Convention on Human Rights (ECHR) in ‘transitional’ settings such as Cyprus. One of the issues we look at, for instance, involves debates surrounding the application of the Court’s new ‘pilot judgment procedure’ in these cases. However, I think one of the most interesting aspects of the case – and one which seems to have drawn surprisingly little attention to date – is the extent to which the Demopoulos ruling demonstrates the power of Article 8 analysis (on the right to the home under the ECHR) in shaping Article 1 Protocol 1 outcomes (related to the right to property).

The mutually reinforcing nature of Article 8 and Article 1 Protocol 1 is hardly news, and the significance of this linkage in restitution settings has been commented on by a number of observers including Antoine Buyse, author of the ECHR Blog. What is striking in the Demopoulos case is that one of the implicit grounds for the Court’s ruling appears to be a determination that the protection of rights to the home under Article 8 of the ECHR have by and large shifted from Greek Cypriot property claimants (who remain legal owners but are increasingly unlikely to be found to have significant links to homes they left behind two generations ago) and to Turkish Cypriot occupants. While the Court does not directly state that occupants of claimed property are now protected under Article 8, such a finding is arguably implicit in the Court’s concern that blanket restitution could give rise to  ‘disproportionate new wrongs’ (para. 117):

The Court must also remark that some thirty-five years after the applicants, or their predecessors in title, left their property, it would risk being arbitrary and injudicious for it to attempt to impose an obligation on the respondent State to effect restitution in all cases, or even in all cases save those in which there is material impossibility, …. It cannot agree that the respondent State should be prohibited from taking into account other considerations, in particular the position of third parties. It cannot be within this Court’s task in interpreting and applying the provisions of the Convention to impose an unconditional obligation on a Government to embark on the forcible eviction and rehousing of potentially large numbers of men, women and children even with the aim of vindicating the rights of victims of violations of the Convention. (para. 116)

In other words, it appears that the Court has accepted that long-term occupation of claimed property can give rise to protected rights to the home, and that the existence of these rights can legitimately limit the ‘possibility’ of restitution in favor of owners. If this proposition holds up, it may come to be seen as a significant precedent that the current debates surrounding post-conflict HLP rights will need to come to grips with. On the other hand, it will also be crucial to distinguish the Court’s findings based on a number of factors unique to the Cyprus context such as the protracted nature of displacement there and the failure of the parties to date to achieve a negotiated settlement.

Colombia’s Victims’ Law enacted – Last stand or new beginning for programmatic property restitution?

by Rhodri C. Williams

In a signing ceremony attended by UN Secretary-General Ban Ki-moon, Colombian President Juan Manuel Santos ratified the Victims’ Law last Saturday, fulfilling his  unexpected and ambitious post-election pledge to enact a property restitution bill. Commentary on TN has highlighted both the unprecedented nature of this effort and the formidable obstacles it faces.

The fate of this legislation takes on additional significance against the background of current debates over the post-conflict ‘right to restitution’ proclaimed most prominently in the 2005 Pinheiro Principles. As early enthusiasm about restitution has faded, the need to respond to prevailing humanitarian trends such as urban vulnerability and protracted displacement has led to an increased emphasis on local integration as a durable solution. The extent to which programmatic restitution – and the promotion of voluntary return – remains seen as a viable complementary strategy to local integration efforts may depend on the outcome of the increasingly rare test cases, such as Colombia, that tackle this challenge head on.

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