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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Rest in peace Mohamed Al-Sweii

My colleague from my time with UNHCR in Libya, Sam Cheung, passed on the tragic news that Dr. Mohamed Al-Sweii was killed in the heavy fighting in Benghazi earlier this week. In the laconic delivery of the Alwasat article, as filtered through google translate:

…the deceased came out of his workplace Benghazi Medical Center to check on his family and as soon as he entered the area which is witnessing violent clashes was shot in the head, killing him instantly.

The first time I met Dr. Al-Sweii, in March 2012, he was waiting for us at a beachside cafe in Tripoli’s fashionable Gargaresh district. He received us with a dazzling grin, in big fashionable traffic cop glasses and an immaculate suit. I can’t recall exactly what I made of him at the time but I probably assumed at first he was just another one of the good-time boys cruising around liberated Tripoli in shiny cars and tight Italian t-shirts. My notes from early in the meeting are not without a dose of humanitarian snark in the margins (“not clear if has heard of the Guiding Principles on Internal Displacement”).

Whatever my first impressions, though, the rest of my notes spoke volumes. As the sun sank red to the Mediterranean, Mohamed walked me through a comprehensive aid delivery program built on the same goodwill and amateur enthusiasm that was powering every other government function and public service in Libya at the time. The difference being that his efforts targeted the virtual untouchables of the revolution, the communities driven out from their homes, persecuted and made to bear collective guilt for four decades of humiliation under the ousted dictator Muammar Gaddafi.

The next time I met Mohamed, it was in the cavernous bullet-riddled former Mercedes dealership in the center of town where he spent his days coordinating aid delivery, escaping to unwind in the cool breezes of Gargaresh only late in the afternoon. It was perhaps at this time I heard the whole story of how he had been a medical student in Benghazi when the revolution broke out and volunteered to fly back and forth to the front lines at Ajdabiya, rescuing battle-wounded overnight revolutionaries in a jerry-rigged ambulance.

Dr. Mohamed put a face on those turbulent times for me. It was him, young and idealistic, suppressing his fear by the things he could do with his own mind and his hands, who would build up a new and better country.

Now, three years after the revolution, Mohamed found himself back in Benghazi, once again risking his own life to save those injured in a far murkier and more ambiguous conflict. People like Mohamed, or the human rights lawyer Salwa Al-Bugaighis murdered last June in Benghazi are the most important resource Libya has. A country denied institutions cannot afford to lose the individuals who give of themselves most freely.

Rest in peace Doctor Mohamed. Libya, heal thyself.

Upcoming discussion of restitution at Stockholm University

Just a quick note to say I will be giving a talk on the right of restitution in two weeks at the Stockholm Center for International Law and Justice. Any TN readers locally-based or passing through are welcome to join!

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.

Happy International Women’s Day!

by Rhodri C. Williams

I didn’t really come across International Women’s Day until I started work in Bosnia and I never quite knew what to make of it. It had a distinctly east of the Oder-Neisse and non-aligned feeling to it, and the idea of cabining all one’s gender analysis into a single day of the year – and manifesting it through mechanical male-to-female flower transfers – didn’t seem entirely satisfying.

That said, there seems to be a healthy tendency for IWD to be taken as an opportunity for serious reflection on the state of gender equality. And that doesn’t just apply to places with notorious issues like Colombia but also to countries like Sweden, where decades of impressive progress only serve to highlight the unsatisfying fact that equality remains elusive. While a persistent salary-gap is the most obvious symptom, complaints roll in around this time of year ranging from the virtual absence of women from corporate boards to some of the highest rates of harassment in the EU.

For those of you interested in an updated global take on equality, the BBC has a good interactive map broken down both by region and broad themes (health, education, economic empowerment, political participation). However, my absolute favorite graphic on equality for this year is this amazing compilation by the Guardian that breaks down by region and categories of legal rights, including property ownership. While it is not entirely comprehensive (some issues like women’s right to retain their last name after marriage are left out) it still presents an extraordinary tool.

As a final point, expect more on the link between post-conflict humanitarian response, women’s property rights and access to justice on TN soon. This in reflection of the fact that securing equal access and tenure rights for women is increasingly recognized as one of the most meaningful areas linking the work of humanitarian actors concerned with the land claims of the displaced – such as the Norwegian Refugee Council (NRC) – and those of rule of law and development actors concerned with access to justice.

Women tend to suffer both from disproportionate vulnerability in humanitarian settings and disenfranchisement in development settings. Societies suffer as a result, both in humanitarian cases where disproportionately female-headed households are unable to reintegrate into society, and in development cases where the human and economic potential of women is wasted. As discussed by Dr. Donny Meertens of Colombia here on the Reinventing the Rules blog, securing women’s land rights is now seen as a key to turning these dynamics around, facilitating durable solutions to displacement, social justice and more equitable development.

Talks collapse in Geneva, reconciliation blooms in Syria?

by Rhodri C. Williams

It is hard to read Syria these days. Hard to look as one horror rolls into another. And hard to understand the dynamic this creates in a population that knows something better, wanted something more and did nothing to deserve what they ultimately got. So, predictably, the day after I speculated that the Geneva talks risked become a pretext for a final ethnic cleansing of Homs in the guise of a humanitarian ceasefire evacuation, the talks collapsed and the ceasefire apparently continued.

Subsequent reporting, particularly by the BBC’s Lyse Doucet, has provided a much clearer picture of how the humanitarian operation in Homs went, with UN personnel and the Syrian Arab Red Crescent (SARC) showing both courage and ingenuity in the face of direct targeting, most likely by pro-Assad regime militias:

Sources confirmed these attacks were the work of a local paramilitary group known as the National Defence Force determined to scupper a deal it saw as feeding and freeing their enemies. “All the devils in this crisis will always try to hinder our work,” Sarc’s head of operations, Khaled Erksoussi, told me on the telephone line from Damascus with a voice tinged with exhaustion and anger.

There are no angels in this war, only what one aid official called “good people in a very bad situation” on both sides of a bitter divide were determined to carry on.

By Wednesday, lessons had been learned. On the edge of the Old City, bundles of food and medicine were unloaded from lorries, and passed along a chain of Sarc volunteers on to two trailers. Supplies would be towed in by the UN’s armoured vehicles.

One of the most sensitive aspects of the operation involves the fate of about 300 “fighting age” men who left the besieged Old City of Homs along with the rest of the civilians evacuated. The willingness of the UN to go forward with the evacuation without guarantees of the humane treatment of fleeing men has been controversial from the outset. This issue, along with the failure of the regime to guarantee humanitarian access to other besieged areas and detention centers, led the ICRC to publicly withhold its support for the operation in Homs:

Evacuations are not the solution to every humanitarian problem, although the Syrian authorities and opposition groups must allow civilians to leave for safer areas. Those who, for whatever reason, choose to stay in their homes remain protected by international humanitarian law and must not be attacked. ….

Anyone detained after an evacuation must be treated humanely at all times and be allowed to contact their families. In addition, our delegates should be allowed to register detainees so that we can follow up on their fate and whereabouts and restore and maintain family contact whenever necessary. We continue to negotiate with the Syrian authorities and other parties to have access to places of detention across the country.

However, as reported by both Doucet and the Wall Street Journal’s Sam Dagher, events took an unexpected turn early, beginning with a decision to release nearly one third of the detained men who signed “a pledge never to bear arms against the state”. As Dagher notes here, such leniency flows from the highest levels of the regime and involves a willful effort to recast the traumatized detainees as born again-Assad supporters, graciously spared the consequences of their own foolishness: 

The Bosnia dilemma: What are the implications of the Homs “humanitarian evacuation” in Syria?

by Rhodri C. Williams

The evacuation of civilians trapped, shelled and nearly starved by the Assad regime’s siege of the center of Homs is an operation that will undoubtedly save many innocent lives. Not incidentally, it is also one of the few areas of concrete progress that appears to have emanated from the Geneva talks between the regime and the opposition, which just entered a laborious second round. But it is hard to avoid a sense of unease about the operation and the signals it sends about the course of the conflict in Syria.

Tellingly, the evacuation deal was rolled out between Geneva I and II, with the opposition apparently caught unawares. This ambiguous start might reasonably be seen as signaling yet another iteration of a high stakes game being played by a discredited regime with its back to the wall. As in the case of last summer’s chemical weapons attack – which made the Assad regime the ‘partner’ in an international effort to dispose of its own illegal weapons – there is a whiff of deliberate atrocities in Homs being used to gain leverage.

Concerns have been expressed on at least three levels. First, the evacuation presents the remaining ‘fighting age’ men trapped in Homs with a Hobson’s choice – remain in the besieged center after the ceasefire expires and continue to face starvation and shelling, or surrender to the tender mercies of the regime’s intelligence forces, who continue to hold some 200 men arrested as they joined the humanitarian exodus from the city. This against the backdrop of continued unresolved questions questions about the fate of men starved out of the Damascus suburb of Mouadamiya last year:

Rebels have rejected offers to evacuate women and children in the past because of concerns, based on experience, about what might happen to men who are left behind. Dozens of men were detained and disappeared after a similar deal made last year in Mouadamiya, near Damascus.

In light of graphic recent evidence that a single detention center in Syria had tortured 11,000 imprisoned men and boys to death, it is hardly surprising that comparisons have been made between the evacuation of Homs and the 1995 fall of Srebrenica in the Bosnian conflict. As in Srebrenica, the means and motive exist. Moreover, the international humanitarian community is caught in a similarly impossible role, trying to protect civilians in a situation where it will not have the power to do more than act as a witness if the regime is determined to seek a final reckoning with its opponents in Homs.

Which leads to the second concern.