Land and Post-Conflict Peacebuilding: The durability of Middle Eastern Civil Codes and durable solutions to displacement

by Dan E. Stigall

Dan E. Stigall is a Trial Attorney with the U.S. Department of Justice, Office of International Affairs. He also serves as an Adjunct Professor of International Law at the The Judge Advocate General’s Legal Center and School (U.S. Army). He previously served on active duty in the U.S. Army JAG Corps from 2001-2009. Any opinion expressed in this Article is solely that of the author and not necessarily that of the Department of Defense or the Department of Justice.

Stigall wrote on “ Refugees and Legal Reform in Iraq: The Iraqi Civil Code, International Standards for the Treatment of Displaced Persons and the Art of Attainable Solutions” in Land and Post-Conflict Peacebuilding and provides an update in this guest posting.

Even on something so small as a blog post, it is always a privilege to be able to collaborate with Rhodri Williams, whose work I have been citing and whose friendship I have valued since my time as Captain in the U.S. Army JAG Corps.  As an Army officer, I served in Iraq – mostly in Tikrit – during the era of the Coalition Provisional Authority.  That assignment gave me my first exposure to the problems associated with displaced persons, housing, and land issues attendant to conflict and post-conflict environments.  That assignment also permitted me to work closely with Iraqi jurists and Iraqi civil law, and intensified my interest in Middle Eastern legal systems, comparative law, and the nexus between comparative law and the myriad issues relating to post-conflict reconstruction.

Years after that initial experience in a conflict zone, a wave of social and political upheaval in the Middle East and North Africa has now resulted in new areas where state security governance is lacking and nascent democracies (or crumbling autocracies) find themselves unable to cope with new sources of instability.  Libya and Syria, in particular, have been profoundly impacted by this phenomenon, which has come to be known as the Arab Spring.  Both Libya and Syria have experienced the collapse of their governments’ key institutions and, in the wake of enormous political upheaval, each country now contains ungoverned spaces which are attracting and incubating a variety of unsavory and destabilizing transnational actors, such as terrorist organizations.

Moreover, as TerraNullius has reported, both Libya and Syria are each now experiencing destabilizing and significant displacement crises.  The number of internally displaced persons in Libya at the end of August 2012 was between 65,000 and 80,000, a population composed mostly of minorities who are unwilling or unable to return because of potential reprisals.  With regard to Syria, it was estimated that, as of early June 2013, as many as 4.25 million Syrians have been internally displaced and more than 2 million Syrians have fled and are living as refugees in neighboring countries.  This has prompted UNHCR to note, “Syria is haemorrhaging women, children and men who cross borders often with little more than the clothes on their backs.”

The acute problems facing Libya and Syria were, in part, the catalyst for my forthcoming article, The Civil Codes of Libya and Syria: Hybridity, Durability, and Post-Revolution Viability in the Aftermath of the Arab Spring.  My research into Libyan and Syrian civil law systems follows as something of an extension of my work on Iraqi civil law, but was also inspired by a comment in Chibli Mallat’s masterful text on Middle Eastern legal systems in which he notes that:

Civil codes in the Middle East are peculiar in two ways: they have proved more resilient than their public law counterparts, and modern civil codes function as stable institutions offering legal anchors which transcend political changes.

This observation is an important one – especially as it relates to post-Arab Spring countries and countries in turmoil – because of the fact that international actors seeking to create the conditions for peace and stability in the post-conflict environments of Libya and Syria must ultimately support or enable durable legal institutions.  Experience has taught that the durability of organic legal institutions is central to the task of restoring order and government functionality in post-conflict states.

Syria is hemmorrhaging

As the Syria crisis reaches yet another crescendo, the UNHCR comes out with a really quite astonishing tweet:

2 million refugees There is no end in sight. #Syria is hemorrhaging.

— UN Refugee Agency (@Refugees) September 3, 2013

Whether born of calculation or desperate spontaneity, the composition of the thing effectively conveys a seasoned humanitarian agency that is on its knees in the face of unprecedented humanitarian catastrophe. It will be a hard act to follow. Lets hope it never needs to be.

For a glimpse of the pressure cooker life in a camp in Hatay province, Turkey, see Robin Yassin Kassab’s latest in Foreign Policy. The manner in which camp life produces hyper-compressed vignettes of the windy discourses we are all so familiar with now is striking – and worth quoting at length:

Part of the problem is Western fear of the opposition’s greatly exaggerated Islamist-extremist element. The irony is that the longer the tragedy lasts, the greater the empowerment of once minor and irrelevant jihadi forces.

Atmeh village, on a hill behind the camp, has been turned into a barracks for the foreign Islamist fighters of Hizb ut-Tahrir. These men are not, apparently, fighting the regime, but waiting for “the next stage” — in other words, the coming struggle between moderates and Islamist extremists after the fall of the regime. Syrians, including democratic Islamists, refer to them derisively as “the spicy crew” and shrug off the risk they represent. One assured me it would take “two minutes” to expel them once the regime falls.

But sectarian hatreds — stoked by the regime’s propaganda, its Alawite death squads, and assaults on Sunni heritage — are certainly rising. I met a man whose wife and 11 children were killed in an airstrike and who plans to marry again and produce 11 more children, “just so I can teach them to kill Alawites.” There’s a teenager who boasted, “Afterwards, we won’t leave a single Alawite alive.”

This deliberate attack on the social fabric is perhaps the regime’s greatest crime. When tyrants light the fuse of sectarian war, they are unleashing passions that extend beyond politics. They are killing people who have not yet been born.

Yassin-Kassab’s account is included in a recent list of articles on Syria recommended by Syrian activists. See also the Guardian here for a description of the effect of the conflict in neighbouring Syria – as well as dubious sectarian populism by the Turkish government – on the  mixed but traditionally tolerant population of Hatay province.

Meanwhile, for a refreshingly clear explanation of the dynamics behind the latest, mysterious wave of Syrian Kurd refugees that broke over Iraq two weeks ago (and which for UNHCR must have been the final straw), see Hugh Eakin in the NYRB blog.

And finally, a new Oxfam report, written together with the ABAAD-Resource Center for Gender Equality, shows that women refugees are both disproportionately represented in and impacted by displacement, going hungry to feed their families and facing heightened domestic violence.

If it’s broke, destroy it? The partition debate arrives in Syria

by Rhodri C. Williams

Almost inevitably in appalling situations like the conflict in Syria, there comes a moment when inhibitions seem to drop among certain sectors of the commentariat and a note of petulant, provocative resignation enters the debate. They can’t live together, goes the standard line, and they have well and truly proved it now. Why should liberals in the West be indulged in their Benetton fantasies? Why spend blood and treasure to preside over the shotgun remarriage of nations so fundamentally unable to tolerate each other’s presence that they engage in fratricide?

The infuriating thing about such ‘partitionist’ arguments is not (only) the curiously visceral satisfaction some commentators seem to take in espousing a vision of humanity unable to accommodate difference by any other means than forced assimilation or strict separation. Nor is it the fact that such arguments tend to rely on speculation about what ordinary people actually want, often in the face of considerable evidence to the contrary. Nor the way that they play into the hands of unprincipled and frequently undemocratic elites and conflict entrepreneurs. It is the fact that they may in some cases be right but for all the wrong reasons.

My first brush with ‘partitionist’ lines of argument came in Bosnia where my initial receptivity to them was challenged not only intuitively (by my unreconstructed persistence in the belief that people can find ways to rub along together) but also structurally (by my job specifically seeking ways to support Bosnians in doing so). However, my best efforts notwithstanding, the partition bandwagon rolled along, perhaps in most raucous form when splitting Bosnia looked like a real option, yet gaily undeterred long after it was clear that partition was neither particularly feasible nor especially desirable.

Perhaps as a result, there was a certain satisfaction in having worked on something as seemingly pollyanna-ish as property restitution in post-conflict Bosnia and seen it succeed. Granted, not everyone returned, but the result was segregation based largely on individual and household choices, rather than partition based on a political sew-up. And, safe in an unprovable negative, I will propose that the brute fact of restitution – the resolution of 200,000 claims that intimately affected many of the families most victimized by the conflict – cannot but have had a calming influence that has helped keep Bosnia’s notorious post-war ethnic politicking from spilling over into new bloodshed.

One can even argue that the pollyannas have been vindicated once again by the recent post-nationalist demonstrations in Bosnia. Perhaps the new generation we have all been going on about so long has now come of age. If this is the case, a new politics could result. Certainly not a politics that transcends nationalism (not even Sweden can manage that), but one that could at least reveal the hollowness at the core of the ‘inevitability’ discourses surrounding partition proposals in places like Bosnia.

Nevertheless, in 2004, the very year that I left Bosnia convinced that partitionism was en route to the dustbin of history, ethnic riots in Kosovo sent carefully orchestrated plans for national reconciliation there into a tailspin. A familiar call and response ensued, with aggrieved international observers eager to wash their hands of the mess and earnest liberal interventionists arguing that the preservation of a multiethnic society was not only possible but necessary.

At that point, my former Bosnia colleagues Marcus Cox and Gerald Knaus of the European Stability Initiative (ESI) were prompted to mount one of the most spirited defenses of ‘post-partitionism’ to date, contrasting the integrity of international efforts to hold places like Bosnia together with the cynicism of an earlier generation of peace agreements in which population transfers were as routine as border demarcations. But in 2004, one year into the US invasion of Iraq, the partition debate had barely begun. Two years later, the festering dispute between Arabs and Kurds over the region surrounding Kirkuk and the spiraling sectarian violence in Baghdad placed partition squarely on the international agenda.

Costing stability against freedom: The minority dilemma in Syria and Iraq

by Rhodri C. Williams

In a recent discussion with a member of Syria’s Christian minority here in Sweden, I found myself conceding the point that a majority of the population may still support the al Assad regime and that many of its opponents in the region clearly have a political axe to grind alongside their professed humanitarian motivations. It was easy enough to dismiss the notion that Assad had been seriously interested in reform, but my interlocutor’s most troubling argument was that the regime had been – and remained – the sole guarantee of her and her communities’ physical safety.

In a media world almost saturated with analysis of the Arab Spring, an increasingly historically oriented strain of thinking has begun to revive the arguments that had become too threadbare to save Mubarak and Ghaddafi – après moi le déluge:

From National Responsibility to Response – Part II: IDPs’ Housing, Land and Property Rights

by Elizabeth Ferris, Erin Mooney and Chareen Stark

This post continues our discussion of the study entitled “From Responsibility to Response: Assessing National Response to Internal Displacement” recently released by the Brookings-LSE Project on Internal Displacement.

Addressing housing, land, and property (HLP) issues is a key component of national responsibility. Principle 29 of the non-binding but widely accepted Guiding Principles on Internal Displacement emphasizes that competent authorities have a duty to assist IDPs to recover their property and possessions or, when recovery is not possible, to obtain appropriate compensation or another form of just reparation.

The 2005 Framework for National Responsibility – which set the benchmarks we applied in our current study – reaffirms this responsibility (in Benchmark 10, “support durable solutions”) and flags a number of the challenges that often arise, such as IDPs’ lack of formal title or other documentary evidence of land and property ownership; the destruction of any such records due to conflict or natural disaster; and discrimination against women in laws and customs regulating property ownership and inheritance.  The Framework for National Responsibility stresses that, “Government authorities should anticipate these problems and address them in line with international human rights standards and in an equitable and non-discriminatory manner.”

The extent to which a government has safeguarded HLP rights, including by assisting IDPs to recover their housing, land, and property thus was among the indicators by which we evaluated the efforts of each of the 15 governments examined in our study. Our findings emphasized the importance of both an adequate legal and policy framework for addressing displacement related HLP issues and the role that bodies charged with adjudication and monitoring can play in ensuring implementation.

Consultancy on the HLP rights of internally displaced women in Iraq

The Norwegian Refugee Council (NRC) is seeking a consultant to advise its Information, Counselling and Legal Assistance (ICLA) program in Iraq on addressing the needs of internally displaced women in informal settlements. As set out in the ToRs (which are available in the ‘resources’ section of this blog) the basic issue relates to the tenure security of all IDPs, given that most settlements are located on state-owned land.

The threat of evictions in such scenarios – and the relevant human rights and development standards – are fairly familiar but not consistently applied. Just over a year ago, for instance, I developed an analysis on precisely this topic for the US Institute of Peace Rule of Law Network. Reference in the current ToRs to the planned  “relocation of many IDP communities as a solution in order to reclaim public lands in the capital, as part of the ‘Baghdad Initiative’” (along with a similar ongoing effort in Diyala) indicate that respect for such standards is more important than ever. However, previous analyses of this situation have not necessarily incorporated a level of gender analysis that corresponds to the realities of Iraq’s IDP settlements:

Conflict and forced displacement have led to the loss of land, homes and personal documentation for IDPs in informal settlements in Baghdad, which has impacted particularly on women. Iraq faces a severe housing crisis. Property is expensive and access to credit for housing very limited. These factors combine to force many IDPs and, in particular, female-headed households, to continue living in the settlements. Given the lack of basic infrastructure, poor sanitary and shelter conditions, this is a choice of last resort. One in eight IDP households is headed by a single female. In many settlements, the majority of women are illiterate and in some cases, confined to the domestic environment.

Potential applicants should contact Robert Beer at pm@iraq.nrc.no with any questions (sooner rather than later).

With me or against us? The Economist mourns the passing of the rugged individual right

by Rhodri C. Williams

A common problem with minority rights is that their necessity is not always self-evident for the people in the majority, who, as we all know, get to call most of the shots in a democracy. This is most problematic in situations where minorities find themselves inconveniently present in countries that have staked a good deal of their credibility on not having minorities, such as newly consolidated and politically fragile post-colonial states or France. However, it may also raise issues when well-intentioned outsiders turn up and start loudly wondering what all the fuss is about.

Before I cast any aspersions on the Economist, I might as well clear my own conscience. Minority and indigenous rights are complex and contested terrain for minority and indigenous peoples, let alone suburban white Americans. Whatever insights living as an expat in the Swedish-speaking Åland archipelago of Finland may have given me, I am still only really in an intellectual position to assess the issue not an intuitive one. This can result in misunderstandings.

In the year since TN was born for instance, I have come to realize that (1) the tag ‘indigenous groups’ may not please a readership that may include some ‘groups’ that have spent the last thirty years struggling to be recognized as ‘peoples’, and that (2) the name of the blog will be received by some right-minded Australians as a hair less offensive than calling it ‘ApartHeid’ would be to South Africans. The point being that perhaps the first duty of the well-meaning outsider is to seek to attain more than a  superficial understanding of the situation they will inevitably influence through their statements.

Sadly, I’m not really so sure that the latest Economist take on group rights meets this test. The article in question, ‘Me myself and them‘ (May 14, 2011), generates a bit more heat than light in its discussion of this complicated topic and links its conclusions somewhat debatably to the fate of the Arab Spring. To paraphrase their argument:

International standards governing evictions from public properties

Last June, I posted on an inquiry about post-conflict occupation of public property in Iraq that was doing the rounds in a rule of law discussion forum on the US Institute of Peace’s International Network to Promote the Rule of Law (INPRoL) website. Since that time, I was asked to work on a ‘consolidated response’ to the query that took into account the various comments posted in response to the original query.

The result can be accessed on the INPRoL site. Below is a copy of the abstract:

This consolidated response reviews three human rights – freedom of movement, privacy, and adequate housing, as well as development standards on evictions, all of which emphasize the need to take all feasible steps to diminish the hardship to vulnerable groups resulting from evictions. It then describes a three factor balancing test, based on the human rights principles and development standards, which Iraq can utilize to ensure its practices adhere to international law and best practices. It is hoped that the presentation of this approach will be of assistance to the Iraqi authorities in identifying the most appropriate policies for addressing the issue of occupation of public property in a manner compatible with both international law and Iraq’s social and economic realities.

It was interesting writing the response as it confirmed my impression that human rights and development standards on evictions are fairly closely conceptually related even if they differ in their details and rarely reference each other. In making my recommendations, I tried to build on what I saw as synergies and encourage governments (well, in this case the Iraqi government) to give both sets of standards the weight they deserve.

Post-conflict occupation of public property – an important issue raised at USIP’s INPRoL forum

by Rhodri C. Williams

I wanted to inform readers of both an interesting rule of law discussion forum – the US Institute of Peace’s International Network to Promote the Rule of Law (INPRoL) – and an interesting discussion that has emerged there based on the following inquiry:

Iraq Health Aid Organization is working with the Iraq Ministry of Displacement and Migration to support internally displaced peoples (IDPs). One issue that has arisen relates to displaced people who have been living in public properties and are now facing eviction or the threat of eviction from government officials. Are there any international norms or standards that should control the eviction of people from public property, particularly IDPs who have no other place to go?

Many of you out there are likely to have some very interesting insights on this discussion – based on experiences in Iraq and many other settings – and I wanted to preface this post by inviting you to join it. Literally. INPRoL is a membership-based resource, but becoming a member is relatively easy. If you would like to be a part of the above discussion or are interested in other issues INPRoL addresses, TN readers are invited to go to the membership application page and sign up, naming me as a nominating member. Once you are in, you can look for “Discussion Forums” in the left-hand menu, click on “General Rule of Law” and look for the discussion on “IDPs and property issues”.

As a preview, I have posted my own response to the Iraq inquiry:

Iraq updates its approach to former regime-related land and property claims

by Peter van der Auweraert

Away from the glare of international attention, Iraq continues to work on addressing the former regime’s wrongful confiscations of tens of thousands of properties during its many years in power. Figures are the best way to show to what extent former regime-related land and property claims remain an important issue in Iraq today:

• the Commission for the Resolution of Real Property Disputes (CRRPD), the entity in charge of those claims, has received 159,758 claims (all figures quoted here come for the CRRPD itself and are current as of 18 February of this year);

• 79,349 claims have been resolved at the first instance level, leaving 80,409 claims for which so far no review has taken place (a first instance decision rate of fifty percent is not bad if you keep in mind that the period in which this was achieved include the violent years 2006 and 2007 (for a comprehensive timeline of the war in Iraq, look here);

• the picture darkens somewhat, however, if you look at the total number of final decisions which currently stands at around 43,300 claims, i.e. about 25 percent of the total caseload only. No restitution or payment of compensation takes place before a final decision is taken. So in the eyes of the Iraqi public, its only this final decision number that really matters;

• it is getting into some detail, but there is another figure that is important for a full assessment of the CRRPD process: these figures of resolved claims include 23,170 so-called “annulment decisions” taken in respect of “grossly incomplete claims”. The point is that they took little or no review-time and hence inflate the actual progress (especially since it is unlikely that the 80,409 remaining claims hide another large group of easy claims).

This slow progress has caused quite some discontent with the CRRPD process amongst Iraqi politicians, especially those who represent predominantly Shiite, Kurdish or Turkmen constituencies (most of the claims come from these communities). Feelings are especially strong in Northern Iraq, where land and property claim numbers are high (look here to understand why) and the resolution rate is well below the national average.

Not a big surprise then, that, just before the elections, the Iraqi Parliament voted a new law to overhaul the CRRPD process. This new piece of legislation has been in the works for quite some time: the CRRPD itself presented a first proposal to amend its mandate law almost two years ago (this proposal was followed by an alternative, quite different, proposal from the Prime Minister’s Office). But now that the new law is there, the important question is: will it indeed improve the CRRPD process?

After an initial reading, I would rate the following changes as positive for the process:

• the increase from one to three appeals chambers. This should speed up the appeals process, currently a massive bottleneck. My fear, however, is that it will not speed up things enough (for the why, read the first bullet point under negative changes here below);

• it will now be up to the Judicial Committees to decide whether to return the property or pay compensation, where before it was up to the claimant to choose. If this new provision is applied wisely, it will facilitate the conclusion of complicated cases where restitution was never going to be a feasible option;

• the value date for the calculation of compensation is now no longer the date on which the claim was filed, but the date on which the last valuation was carried out (which is (much) close to time of the first instance decision). A change of valuation date should generally increase compensation amounts, which in turn should facilitate enforcement (anecdotal evidence suggests that enforcement of restitution decisions is patchy, higher compensation may encourage more current occupiers to depart willingly).

• the permanent appointment of the staff and their guaranteed transfer to the Ministry of Finance once the Commission ends its work was apparently included to reduce incentives for the staff to delay the process. I am skeptical that this will result in considerable efficiency gains, but gave it the benefit of doubt and included it here under the positive innovations.

The following list contains changes that are likely to have a negative impact or that, at least in my view, were wrongly omitted from the new law:

• the current practice of automatically appealing against any decision where the interests of the Iraqi State are at stake is now enshrined as an obligation in the law itself. In reality, most decisions concern the Iraqi State, either because it has to return property or because it has to pay out compensation (to give an idea, the current appeals rate for claims in Kirkuk stands around 80 percent, mostly because of appeals against state-related decisions).This practice has been the single most important cause of the slow progress of the CRRPD process. It sends the wrong message to claimants (how does this rhyme with the Iraqi State remedying past wrongs?); is a waste of resources (the vast majority of automatic appeals lead to the approval of the first instance decision); and is likely to continue clogging up the appeals process, notwithstanding the increase to three chambers.

• claimants who felt that they received too little compensation under the CRRPD law, are given the right to apply again for additional compensation. The way this is drafted potentially gives all claimants who received a final compensation decision under the CRRPD the right to obtain additional compensation. Did the CRRPD process really need the re-opening of old cases?

• the law does not introduce a simplified process for dealing with a significant proportion of the claims that are really quite straightforward. I am thinking of claims by previous owners against the Iraqi State for the return of land that is currently not being used by anyone else. This would have been an easy way to decongest the process, and free-up resources for more complicated cases.

For some changes, it is difficult to know what the impact will be:

• the appeals process now falls under the competence of the Federal Cassation Court, where before the CRRPD had its own, separate Cassation Commission. Some Iraqi lawyers I spoke to voiced concern that this would lead to a more restrictive (read less victim-friendly) jurisprudence, but I simply do not know.

• the Commission, while remaining independent, is now institutionally linked to the Parliament rather than the Council of Ministers. Will this change the level of oversight? Difficult to know at this stage.

• a new goal of the law is “to preserve public money and address the imbalance between the interests of the citizens and state interests”. Again, difficult to say, but will this provision result in a less victim-oriented process?

By the way, the new law also abolishes the CRRPD, replacing it with a new commission called the Property Claims Commission (PCC).  It is much less dramatic than it sounds: the PCC will take over the mandate, staff, buildings and administrative structure of the CRRPD. So its more of a name change than anything else (one parliamentarian told me that the reason for adopting a new law and establishing a new commission, rather than making amendments to the existing CRRPD law, was that the changes would have affected more than half of the CRRPD law’s provisions, a proportion considered unacceptable for a simple amendment). This is one change of which we can be sure that it will have little impact on how the remaining land and property claims are dealt with.