Tag Archives: hlp

Lost in transition – EU financed legal aid programme between Serbia and Kosovo falters

by Massimo Moratti

Since 2012, I have been informing the readers on some key developments in the field of property rights, as they emerged from the practice of a legal aid project in Serbia for refugees from Bosnia and Croatia as well as displaced persons from Kosovo*. The November 2011 – June 2015 phase of the project (which has been funded by the EU Delegation to Serbia since 2008) was implemented by a team of lawyers and barristers I had the privilege of leading.

Many of the blog readers might wonder what happened with the Project since the last post two years ago, and I am glad to use this opportunity to provide an update on subsequent developments. At that time, the project was due to end in June 2014, but received a one year cost extension from the EU Delegation to the Republic of Serbia. The project was financed under the Instrument for Pre-Accession (IPA), the main fund to support countries that are in the EU accession process.

Under the terms of the IPA, a local public institution, in this case the Serbian Government’s Office for Kosovo and Metohija (the OKiM), was designated as beneficiary of the Project. Accordingly, the OKiM provided free legal aid to displaced persons from Kosovo via outsourcing to a consortium of private companies and NGOs, which in turn implemented the project under the EU flag.

This is the standard arrangement for EU funding, but in this specific case, where the divide between Serbia and Kosovo* institutions remains wide, it was crucial to make sure that a team of EU-funded lawyers could operate between the two legal systems, engaging in de facto conduct that I defined as “shuttle legal aid”.

For those not familiar with the practicalities of the issue, it is worth recalling that there are, according to the Serbian authorities, around 200,000 displaced persons from Kosovo. It is unclear how many of them have not yet solved their property issues. While displaced persons are mostly in Serbia, their properties and other assets are located in Kosovo, and any attempt at ensuring the protection of their rights needs to be conducted before the institutions of Kosovo*.

However, the two legal system do not recognize each other’s documents, and there is no functioning post or telephone system between Kosovo* and Serbia. Lawyers and legal aid NGOs from Serbia are often reluctant to travel to Kosovo, both because of logistical and security issues and due to lack of familiarity with the institutional setting of the former Serbian province. Lawyers from Kosovo do not seem interested in conducting any outreach to potential clients in Serbia and more important than everything else, displaced persons themselves do not have the financial means to pay for legal expenses.

The EU-funded legal aid programme presented a solution to these problems, since it could operate in both Kosovo and in Serbia. The positive aspects were numerous: the project bridged the institutional gaps between the two systems, it was staffed with an adequate number of lawyer and barristers familiar with national and international law, and its proceedings were completely free for the IDPs (including coverage of court fees and expenses).

Indeed, besides successfully representing thousands of persons in administrative and court proceedings, the Project generated valuable information, in that it could closely observe the workings of the courts of Kosovo* in the context of property cases. Most of these cases involved disputes about the possession of property where an inter-ethnic element was present, which raised the profile and the tension in many of these disputes.

The project had a unique point of view, namely that of the claimants and their legal representatives and it could accordingly witness how legal proceedings took place “from the bottom” and very often without other international observers present. This unique point of view allowed the project to use its cases to collect information on court practice and in this manner legal aid became a “fact finding” tool, regularly reporting its findings on its website and from time to time on this blog.

The topics covered were some of the most contentious in Kosovo. Moreover, they involved the issue of property rights, where, as consistently highlighted in the EU Progress Reports about Kosovo, progress was slow or non-existent.

In the course of its work, the Project successfully represented displaced persons who were trying to challenge the illegal occupation, and in some cases demolition, of their properties. In other cases, the Project initiated criminal and civil proceedings cases against persons who acquired property via “fraudulent transactions”, highlighting patterns indicating that the forgery of property documents and records was not just an act of few corrupt individuals, but in certain areas a concerted effort to grab land to be used for business purposes.

In several landmark cases before the Constitutional Court of Kosovo, it was also possible to highlight how an internationally funded mass claims mechanism, the Kosovo Property Agency (KPA) had itself violated the rights to property and fair trial by refusing to solve property disputes or to award compensation to claimants.

However, like all projects, this one too came to an end on 12 June 2015. Continue reading

Article on HLP rights and durable solutions in GPC Digest

by Rhodri C. Williams

A short piece I wrote on the relationship between ‘housing, land and property’ (HLP) rights and durable solutions for displaced persons has been published in the Global Protection Cluster Digest, vol. 1/2014, and can be accessed in pdf form here. I have also added the last draft before final edits just below.

The thrust of the piece will be pretty familiar to any regular readers of this blog. I’ve been going on about the steady demise of the Pinheiro Principles and their exclusive focus on restitution (over other forms of reparation) for some time now. As precedents like the ECHR Demopoulos decision and humanitarian changes in tack like the IDP Durable Solutions Framework crowded in, it became ever more clear that a more balanced approach was justified.

Indeed, even before the spike in global displacement seen since 2011, growing awareness of the problem of protracted displacement had put local integration front and center in international discussions of durable solutions. Where displacement persists because return is not on the table, continuing to emphasize the future hope of restitution can distract both displaced persons and host communities from practical steps to ameliorate the here and now. Meaning that a more balanced approach was also necessary.

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International Humanitarian Law more clear and more debated than ever – updated

by Rhodri C. Williams

The immediate inspiration for this post was the fact that the International Committee for the Red Cross (ICRC) recently put online its vast and expanding database on which norms of International Humanitarian Law (IHL) are now deemed to have attained the status of customary international law (CIL), binding on all parties to armed conflicts whether or not they have ratified (or otherwise assented to be bound by) the treaties that give rise to these rules.

The database consists of both a comprehensive listing of the rules now deemed applicable and a compendium of practice, both that which supports the emerging rules and objections against its validity (anyone want to take some wild guesses on what states frequently feature in the latter category?) In the new online version, the practice of some seven further states and a number of international tribunals have been added. The new database constitutes a highly accessible and useful tool alongside ICRC’s additional databases on treaty ratification and application by States Parties.

The good news is that there has been considerable progress in this area. I have written on this blog and elsewhere about the role of soft-law documents like the 1998 UN Guiding Principles on Internal Displacement in consolidating a human rights based approach that has transformed humanitarian action in the post-Cold War period. This transformation has brought new possibilities for advocacy by pairing the cautiously phrased and state-centric provisions of IHL with the less ambiguous and more individual-oriented rules of international human rights law (IHRL).

Moreover, because advocacy for the Guiding Principles has focused on engaging willing states (at the risk of to some extent being co-opted by them), they have been far more successful than most soft-law standards, to the extent of having been incorporated in numerous national laws and policies (compiled by the Brookings Institution here) as well as a groundbreaking regional convention adopted by the African Union. This, in turn, has provided support for customary IHL to more vigorously address areas such as the prohibition against arbitrary displacement (including in internal conflicts), the right of voluntary return for internally displaced persons (IDPs) as well as the state obligation to respect their property rights.

However the new force and reach that a rights-based approach has given to IHL has brought new risks as well. Most obviously, by encouraging humanitarian actors to condemn violations of human rights (such as forced displacement) and demand accountability and remedies (such as restitution), the rights-based approach may create dangerously high expectations on the part of beneficiaries of aid while simultaneously undermining the perceived impartiality of humanitarian actors. In the worst cases – and we do not have to look far to find them – this limits the access of humanitarian actors to vulnerable populations and puts their own security at risk.

As a result, this ongoing retrenchment of the rules of conflict has opened up new policy debates, most recently in the extremely difficult humanitarian arena of the Syrian conflict. The latest iteration came with the 28 April 2014 publication of an open letter signed by 35 eminent legal scholars. The letter noted that 3.5 million civilians – over a third of those in urgent humanitarian need in Syria – are living in areas accessible only from neighbouring countries. However, because Syria has denied consent to humanitarian actors operating in Syria to send cross-border aid, these civilians face a catastrophe.

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COHRE archive back online

by Rhodri C. Williams

Its been some time since the mysterious demise of the Centre on Housing Rights and Evictions (COHRE), the protean Housing, Land and Property (HLP) rights NGO that inspired and spun off so many others. One of the most direct successors to COHRE, the Global Initiative for Economic Social and Cultural Rights (GI-ESCR) was early out in placing a selection of COHRE reports and manuals in their resource library. However, COHRE itself, evicted from the web, had ceased to exist as completely as if it had never existed.

Having stumbled across a fully functioning COHRE website this morning on precisely its old, familiar URL, I am happy to announce that the org is back as a resource, even if it is no longer an active force. The site itself is frozen in time in Summer 2011 (when one might wish all of time had frozen), complete with welcomes from its then-Chairperson and Director, and a seemingly complete archive of reports and resources, including my original 2008 salvo on housing rights in Cambodia (here in pdf).

I should note that I have heard more about the demise of COHRE since I blogged on it two years ago, but have been told these things in confidence, which I do not intend to breach. Whatever the circumstances that brought COHRE down, all the involved parties appear united by a desire to focus on the positive aspects of their experience, which is itself quite a legacy. That said, if the mysterious benefactors who brought COHRE back online want to come forward, they are welcome to do so here.

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.

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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.

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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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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