Tag Archives: IDPs

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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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!

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Happy Midsummer’s Eve – and World Refugee Day

by Rhodri C. Williams

Every now and then the various preoccupations of this blog collide in unexpected ways. Today is such a day. Sitting here on Åland, its the first day of my summer vacation and time for the rites of Midsummer Eve, a pagan celebration the observance of which is an important part of the local community’s sense of itself. It is a day of rootedness in traditions carried out on a particular piece of turf since time out of mind by people connected through the ages by language and a sense of cultural continuity and the simple fact of their abiding presence.

All of which makes the contrast with this day’s other guise so jarring. It is World Refugee Day and not just any such day, but the one that has seen the greatest spike in conflict-related displacement since World War II. As this village’s 30 families raise the midsummer pole tonight, over 50 million people in other parts of the world have been violently uprooted from their communities, their traditions, their homes and their lands. It is a truly grim milestone and one that will cast a shadow over this and many future midsummer evenings to come.

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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The Kosovo Constitutional Court on displaced persons’ property rights: Can mediation ever count as enforcement?

by Massimo Moratti

Protecting the property rights of displaced persons in post-conflict scenarios presents a number of interesting challenges, not least when internally displaced persons (IDPs) face illegal construction on their land and therefore are forced to seek remedies before the relevant institutions, including mass claims mechanisms.

One of these cases, which is probably not an isolated one, occurred recently in Kosovo, where the Kosovo Property Agency (KPA) is the local mass claim mechanism which inherited the competences of the UNMIK Housing and Property Directorate (HPD).  Established in 2006, the Kosovo Property Agency became an independent agency functioning in accordance with the Constitution of Kosovo after the unilateral declaration of independence.  The mandate of the KPA focuses on claims for land and commercial property, which were not addressed by the UNMIK HPD, since the HPD’s mandate did not cover such claims and the local courts were in theory competent for the receiving them. Since its inception, the KPA has collected claims for over 42,000 properties and decided 96% of those claims.

While the process of issuing decisions is approaching its end, the implementation of such decisions in a number of cases is becoming particularly problematic, especially those cases where a new building has been constructed on claimed properties. It is worth recalling that the KPA was created in 2006 and for the period 1999-2006 there was no claims mechanism to deal with claims for land, nor were courts capable of effectively processing such claims.  In the meantime, “a lot has been built in Kosovo”, to quote one of the officers of the Ombudsman office when contacted about the issue of illegal construction.

The problem the KPA is facing now is how to deal with such cases, where an illegal occupant has built a residential or commercial building on a claimed plot of land. In theory, the KPA could resolve to seize and demolish the building, sell it at an auction, broker a lease agreement or place the building under administration. However, practice has departed significantly from the procedures foreseen in the law. The KPA has instead developed a mediation procedure in order to try to solve these cases without resorting to destruction of buildings. IDPs facing illegal construction are now routinely informed by the KPA about the impossibility of demolish such buildings and offered the possibility for mediation.

This offer of mediation raises a number of issues and leaves a number of questions unanswered.  The case KI187/13 recently brought before the Constitutional Court of Kosovo highlights how the procedure of mediation collides with the provisions of the European Convention on Human Rights (ECHR). In this case, a female IDP who left Kosovo in 1999 and has lived in destitute conditions since sought repossession of a large plot of land in an attractive location outside Pristina with significant commercial value. On the same plot, an illegal occupant had built three houses with a swimming pool. The applicant claimed her property in 2006 and a KPA decision in her favor became final and binding in 2013.

The KPA however told the applicant that they could not enforce her claim, because the property had changed since the time she owned it and the KPA lacked the resources to demolish the existing buildings. They offered instead to mediate between her and the illegal occupant. The applicant refused such mediation and instead addressed the Constitutional Court of Kosovo, claiming a violation of her rights to property, to a fair trial and to an effective remedy. Continue reading

Coping with the realities of climate displacement: The Peninsular Principles

by Khaled Hassine

Dr. Khaled Hassine is an international laywer specialized in property restitution and mass claims procedures, who was part of the Peninsula Principles drafting team.

Though the linkages between climate change and displacement are complex and cannot entirely be predicted, the enduring debate about causality and path dependency seems somewhat derisive in light of the reality faced by many people around the world who are losing their homes and livelihoods as a result of climatic changes and their effects 

Climate displacement already is and will increasingly be one of the many ways in which affected populations adapt to their changed environment. Eventually, albeit belatedly, this actual fact was acknowledged in 2010 by the Cancún Adaptation Framework, which recognized migration, displacement and planned relocation as forms of adaptation to climate change.

The Peninsular Principles on Climate Displacement Within States are born out of a necessity to cope with this reality. The process was driven by people and communities claiming the protection of their rights in the wake of both large and small-scale threats from an increasingly hostile environment.

It is they themselves who felt that there was a pressing need to develop a normative, institutional and implementation framework. Displacement Solutions as an international non-governmental organization merely took on this grass root quest for guidance and solutions, and helped to facilitate and steer a process geared towards addressing the pivotal questions of climate displacement that concern people everywhere.

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Land reform in Colombia: One step forward, two steps back

by Nelson Camilo Sánchez and Ilan Grapel

Nelson Camilo Sánchez is a research coordinator of the Center for the Study of Law, Justice, and Society Dejusticia and associate professor at the Universidad Nacional de Colombia in Bogota. Ilan Grapel is a recent graduate of Emory University School of Law. For the last six months, he has been working with Dejusticia, where he has been researching issues relating to transitional justice in Colombia’s peace process.

Land reform in Colombia, while politically sensitive, is necessary to stabilize the country and end a violent conflict that has plagued Colombians for more than half a century. Colombia’s internal fighting has deprived millions of their land and livelihood. Adopted in June 2011, Colombia’s Victims and Land Restitution Law, also known as Law 1448, is an important advance in providing restitution for those displaced by the conflict.

With this law, the government officially recognized the existence of an internal armed conflict. The Victims Law demonstrates that the government hopes to provide greater rights to the victims of the conflict. However, this legislation needs to overcome many obstacles; foremost among them, the Victims Law needs to find a way to provide reprieve to the large number of victims who may be entitled to compensation under the law.

To date, the government has made progress in realizing restitution claims. However, the law alone cannot cure Colombia of inequality within its population. As the government struggles to return impoverished victims to their lands, the moneyed classes continues to aggregate land and resources that allow them to maintain a lifestyle vastly different from the average Colombian, let alone the landless farmers. This inequality creates a tension that prolongs the hostilities and continues the displacement in the region.

For Colombia to transition into a successful and stable country, the government needs both to improve the Victims Law and address other land distribution problems.

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