Tag Archives: reparations

Kyrgyzstan Inquiry Commission – Osh riots resulted in crimes against humanity

by Rhodri C. Williams

The Kyrgyzstan Inquiry Commission set up to examine the violence between ethnic Uzbeks and Kyrgyz that killed nearly 500 people last June in the country’s south has just released its report. Most media attention has been devoted to the fact that the Commission identified the minority Uzbek community as the overwhelming victims of the attack, found evidence of official complicity, and alleged that some of the acts committed may amount to crimes against humanity. However, a number of the Commission’s less prominent findings confirm both the role of property destruction in consolidating the victimization of the Uzbek minority and the need for reparations to address these and other crimes.

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Yugoslavia Tribunal issues Gotovina judgment – discriminatory property laws deemed persecution

by Rhodri C. Williams

The International Criminal Tribunal for the former Yugoslavia (ICTY) today convicted two Croatian Generals, Ante Gotovina and Mladen Markač, and acquitted one, Ivan Čermak, of charges of crimes against humanity and violations of the laws or customs of war. The charges were related to crimes committed during the Operation Storm military campaign between July and September 1995, during which Croatian forces reasserted control over the breakaway Krajina region and displaced as many as 250,000 Croatian Serbs to Bosnia and Serbia.

The Storm campaign has been described both as the largest land offensive in Europe since World War II and as the single most egregious act of ethnic cleansing in the first round of fighting surrounding the breakup of the former Yugoslavia (the consecutive expulsions of Kosovo Albanians and Serbs in the 1999 Kosovo conflict would give it a run later). While I have not yet had time to read the full decision (which weighs in at hundreds of pages), the ICTY press release and summary of the judgment are more accessible and provide a picture of an important and sweeping ruling.

The Court appears to have taken further steps to shift the post-Cold War phenomenon of ethnic cleansing more clearly into the legal category of crimes against humanity involving persecution. In doing so, they have provided an important (and overdue) recognition of the central role that administrative confiscation and reallocation of property and homes play in consolidating such acts. Whether this ruling will have an impact on the somewhat murky negotiations now going on between Croatia and Serbia over compensation for the effects of these acts – in the form of the permanent loss of many Croatian Serb homes – is another question.

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Note on ECtHR Decision in Demopoulos v. Turkey

by Rhodri C. Williams

Along similar lines to my earlier piece on the UNRoD, I recently wrote an introductory note for the publication in International Legal Materials of a key decision on property rights in Cyprus by the European Court of Human Rights.

The Demopoulos decision is interesting from a number of perspectives, but not least for the new approach it brings to the issue of what standards should guide the question of when compensation can be provided in lieu of restitution (an issue I’ve opined on a number of times in the past, including here with regard to the IASC framework on durable solutions for IDPs).

The proper name of the final version of this article is “Introductory Note to the European Court of Human Rights: Demopoulos v. Turkey” and it was published in its final version in the Volume 49 No. 3 issue of International Legal Materials. The version reproduced below is an edited draft.

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INTRODUCTORY NOTE TO THE European Court of Human Rights: Demopoulos v. Turkey

BY RHODRI C. WILLIAMS

I.            Introduction

On March 1, 2010, the Grand Chamber of the European Court of Human Rights decided to reject the applications of seventeen Cypriot citizens against Turkey as inadmissible.[i] The applicants had alleged various violations of the European Convention of Human Rights, but the Court’s decision in Demopoulos turned on examination of their claims related to the right of property under Article 1 of the First Protocol to the European Convention on Human Rights, as well as the right to the home under Article 8 of the Convention.

All of the applicants in Demopoulos are Greek Cypriots who were displaced by the 1974 Turkish invasion and occupation of north Cyprus, and subsequently denied the use of their properties and access to homes they left behind. Essentially, this ruling is the latest in a fourteen-year line of decisions against Turkey related to the unresolved conflict in Cyprus. However, this ruling also breaks with its antecedents. First, it finds that the property claims process set up in Turkish-controlled northern Cyprus may constitute an effective domestic remedy; and, secondly, it requires Greek Cypriot applicants to demonstrate that they have exhausted this remedy before their applications to the Court will be found admissible.

The broader significance of the Court’s decision in Demopoulos is two-fold. On the one hand, the decision represents the most emphatic expression to date of the Court’s determination to implement a new “pilot case” procedure. This procedure is meant to relieve the Court of a large backlog of cases by encouraging States Parties to the Convention to adopt systematic approaches allowing the domestic resolution of repetitive, or “clone” cases pending before the Court. On the other hand, the decision appears to represent a conscious effort by the Court – as one of many international players involved in the protracted negotiations over the Cyprus issue – to strike a practical balance between heretofore irreconcilable Greek and Turkish Cypriot negotiating positions.

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Sebastián Albuja on the Colombia restitution bill

NB: Sebastián Albuja covers Colombia for IDMC and is currently working on a report on restitution issues there. In the meantime, he has provided a few comments on my post from yesterday, including a closer reading of the new draft restitution law which is so interesting that it deserved to be a post in its own right:

Hi Rhodri and colleagues,

I agree with you that the momentum given by the Santos administration bodes well for the adoption of a reparations program this time around. For one, the administration has a clear majority in Congress that should in principle support this Government-backed bill. However, questions remain regarding some aspects of the bill. In the meantime and while we finalize our report, here is a brief description and commentary on the proposed bill.

The ‘motivations’ section of the bill mentions that it sets out to implement the orders given to the Government by the Constitutional Court in relation to IDPs land rights. The bill does include many guarantees for victims contained in the Colombian Constitution and international law (and included in your recommendations in the Displacement Solutions report).

Firstly, it chooses restitution as a preferential mechanism over alternative means of reparation. Secondly, it makes eligible for restitution not only those with property titles, but also people that had informal tenure over land. Thirdly, it establishes a presumption that dispossession happened in areas where generalized violence took place. These areas will be determined and delimited by the government prior to the implementation of the mechanism, and will be made priority zones for restitution.

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Restitution gets a fresh chance in Colombia

by Rhodri C. Williams

The Economist has picked up on a positive trend in Colombia, where the new administration of Juan Manuel Santos has issued draft legislation proposing special courts to address the restitution claims of over 3 million internally displaced persons (IDPs) driven from their land over decades of conflict.

The bill incorporates a number of administrative shortcuts in favor of victims that have been proposed by various restitution wonks, including myself in a 2006 presentation for Fundación Ideas Para la Paz and a 2008 analysis for Displacement Solutions (as well as more broadly in the discussion of ‘facilitated procedures’ in Chapter 12 of the 2008 IDP Law and Policy Manual):

On September 7th Mr Santos’s administration published a bill to create special courts to oversee land restitution. It would also reverse the burden of proof, requiring owners to show they acquired land legally and without violence or threats. The aim is to restore 2m hectares to the dispossessed over the next four years. ….

It will not be easy. Some 70% of displaced people hold no formal title, and many worked the land under unwritten sharecropping arrangements, according to Ana Maria Ibáñez, an economist at the University of the Andes in Bogotá. The bill proposes a new land registry based on testimony by the displaced and their neighbours. The broader aim is to formalise land tenure in a country where only 40% of farms have titles and only half have been valued. The registered value of Colombia’s national territory (of 114m hectares) is just $279 billion, of which property in Bogota, the capital, accounts for 40%.

Its low value encourages owners of land to leave much of it fallow or sparsely grazed by a few cows. Juan Camilo Restrepo, the agriculture minister, wants to induce more productive use of land. Almost half the 38.6m hectares devoted to ranching could be used for intensive farming, the ministry reckons. It also wants to turn some fallow or confiscated land over to landless people, as a way to reduce Colombia’s high unemployment rate. A new “peasant-farmer reserve zone” will be created near the Montes de Maria, an area where agribusinesses have been buying land from indebted small farmers at bargain prices. And once land is properly valued it could be duly taxed.

A note of caution is in order as Colombia has been a graveyard of reparations plans in the past. My own report for DS (above) begins by listing ten laws and decrees with provisions on both the narrow issue of property restitution and broader questions of victims’ reparations and land administration reform, most of which remained largely unimplemented. Indeed, the report itself was intended to facilitate a draft Victims’ Law that was launched with great optimism but quickly fell afoul of the politically polarized legislature. However, Santos’ new mandate may provide a conducive atmosphere for passage of the draft law, and if so, the early and serious attention being given to this issue bodes well for its implementation.

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Note on the UN Register of Damage for the Occupied Palestinian Territory

by Rhodri C. Williams

I recently wrote an introductory note for publication in International Legal Materials related to a set of rules of procedure adopted last year by the UN Register of Damage (UNRoD). The Register was set up in order to develop a record of all damages resulting from the construction of Israel’s “security fence”, referred to by the UN General Assembly as the “Wall”, in the Occupied Palestinian Territory. As such, it represents an interesting development both in the attempt to resolve the Middle East conflict and in the evolution of institutional responses to mass claims for reparations.

The proper name of the final version of this article is “Introductory Note to the United Nations Register of Damage (UNRoD) Rules and Regulations Governing the Registration of Claims” and it was published in its final version in the Volume 49 No. 2 issue of International Legal Materials. The version reproduced below is an edited draft.

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Introduction

On June 16, 2009, the Board of the United Nations Register of Damage (UNRoD) issued a set of “Rules and Regulations Governing the Registration of Claims” (Rules). The Office of the UNRoD is a subsidiary organ of the General Assembly operating under the administrative authority of the Secretary General, with a mandate to develop “a record, in documentary form, of the damage caused to all natural and legal persons concerned as a result of the construction of the wall by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem.”[i]

The issuance of the Rules comes over two years after the January 2007 establishment of the Office of the UNRoD by UN General Assembly Resolution ES-10/17[ii] and the subsequent May 2007 appointment by the Secretary General of the Office’s Board.[iii] The length of time it has taken to issue the Rules, combined with the fact that they do not fully resolve a number of open questions surrounding the scope and nature of the registration process, is likely to fuel concerns about the effectiveness of the Office. On the other hand, the fact that the Rules have been issued at all confirms that the UNRoD is evolving from a recommendation into a real institution. This development will inevitably influence not only the ongoing efforts to resolve the conflict in the Middle East, but also broader debates related to the role of reparations for individual victims of international law violations in the context of protracted peace negotiations.

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Report alleging corporate complicity in Sudan oil abuses hits home in Sweden

by Rhodri C. Williams

A recent report by the European Coalition on Oil in Sudan (ECOS) has generated considerable debate in Europe, including Sweden, where reports on a local oil company’s possible complicity in atrocities has become an issue in upcoming elections and provided a slightly grim counterpoint to the glitz of the recent royal wedding.  The report is entitled “Unpaid Debt: The Legacy of Lundin, Petronas and OMV in Sudan, 1997-2003” and can be accessed here.

As I’ve been meaning to bring in some local stories and have established contact with a number of interesting humanitarian and human rights actors in my adopted home, I thought I would let one of the involved parties – Åsa Henriksson of the Swedish Fellowship of Reconciliation – tell the story:

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Housing, land and property issues central to new Durable Solutions Framework for IDPs

by Rhodri Williams

The international response to internal displacement marshaled under the auspices of the Brookings Institution in the early 1990s has, over time, provided convincing answers to many of the vexing questions this issue initially raised. The 1998 Guiding Principles on Internal Displacement, in particular, shed light on the status of internally displaced persons (IDPs), provided a descriptive definition of who they are and grounded a theory on why they require protection and assistance on the notion that sovereignty entails responsibility (which was so successful at overcoming state reluctance to allow international scrutiny of their internal affairs that it was eventually cribbed by the founders of R2P).

However, one lingering question related to when IDPs stopped being “displaced”. Did it matter, for instance, that Greek Cypriots displaced from the north in 1974 still didn’t have the option to return when they were firmly established in the south and often enjoyed a higher standard of living than their non-displaced neighbors? When, on the other hand, return was encouraged through the withdrawal of assistance at displacement sites, could those who nevertheless remained behind still claim to be displaced?

Whereas refugees receive a special international status based on loss of the protection of their country of origin – and can lose this status once such protection resumes – IDPs generally remain citizens throughout and are entitled to special protection based on their factual vulnerability rather than any change in legal status. When does this state of vulnerability end?

The Brookings-Bern Project on Internal Displacement took an initial stab at this question with a research project initiated in 2002. The first draft of a Framework for Durable Solutions was published five years later (helpfully, along with many of the documents that led to its preparation). The document was welcomed by the Inter-Agency Standing Committee, which recommended in March 2007 that it be field-tested and finalized on the basis of practitioners’ feedback. In the meantime, the UN Development Group published a 2004 Guidance Note on durable solutions for “displaced persons” (including refugees and returnees as well as IDPs) meant to assist UN country teams in incorporating these issues into common country assessments and UN development assistance frameworks.

Both the UNDG Note and particularly the draft Framework were heavily drawn on by the Global Protection Cluster Working Group in developing a chapter on durable solutions in the December 2007 provisional release of the IDP Protection Handbook, which was meant to provide guidance to the staff of international organizations in the field. Now a revision process led by the current Representative of the UN Secretary General (RSG) on the Human Rights of IDPs, Walter Kälin, has concluded with the publication of an advance draft of the final Framework, as an attachment to Mr. Kälin’s final report to the UN Human Rights Council. The Framework includes a great deal of interest for housing, land and property (HLP) practitioners, but it may be useful to begin with a few of the more general features of the document.

First, the Framework represents an interesting variant on the RSG’s longstanding focus on encouraging states affected by displacement to recognize their responsibility to address the issue and providing tools, such as the IDP Law and Policy Manual, that directly build their capacity to do so. In this case, the Framework “assists” states indirectly, by providing a tool aimed at allowing international and non-governmental actors to more effectively monitor their efforts (see para. 7). The section on monitoring (paragraphs 44 to 47) makes the accountability function of the Framework explicit, but presents it in a manner that stresses the need for states and civil society actors to seek complementarity rather than conflict:

Scrutiny by independent actors complements the efforts of national and local authorities and humanitarian and development actors in monitoring their own work. Independent mechanisms should ensure the transparency of their work through public reporting.  The scope of the monitoring work should be determined in memoranda of understanding signed by national and local authorities and the monitoring institution. (para. 46)

Second, the Framework settles the issue of how the various options for durable solutions are defined. The Guiding Principles themselves refer only to return to homes or places of origin and resettlement elsewhere in the country. Resettlement has subsequently broken down into two options – local integration at the site where displaced persons find initial shelter or resettlement at some third location within the country or abroad. While this tripartite formulation – return, local integration and resettlement – provided greater descriptive coherence, it also perpetuated terminological confusion, with UNHCR noting that ‘resettlement’, in particular, had a specific and entirely different meaning in international refugee law. As a result, the new formulation maintains the three options but reframes them in a new, IDP-specific terminology of integration (para. 9):

A durable solution can be achieved through:
● Sustainable reintegration at the place of origin (hereinafter referred to as “return”);
● Sustainable local integration in areas where internally displaced persons take refuge (local integration);
● Sustainable integration in another part of the country (settlement elsewhere in the country).

In this context, durable solutions are defined as achieved “when former IDPs no longer have specific assistance and protection needs that are linked to their displacement and such persons can enjoy their human rights without discrimination resulting from their displacement” (para. 8).

Finally, the Framework abandons earlier efforts to define “when displacement ends” – an inquiry that was both practically unnecessary and potentially condescending to those who had found durable solutions but would reasonably consider themselves marked by displacement for the rest of their lives – in favor of guidance and criteria explicitly designed to be translated, on a case by case basis, into indicators sensitive to local context (para. 45).

In terms of structure, the Framework is divided in to four sections, comprising (1) the definition of durable solutions, (2) key background principles guiding the search for durable solutions, (3) rights-based organizing principles for developing processes to support durable solutions, and (4) criteria for the achievement of durable solutions. The criteria are further broken down into four applicable in all situations (security, adequate standard of living, livelihoods and – never fear – HLP rights) and four discretionary categories (documentation, family unity, participation and remedies).

Treatment of HLP rights in the Framework is interesting at two levels. First, the Framework places HLP rights in a broader context without conflating them with related issues. The section on housing, land and property rights clearly focuses on the recovery of property left behind by IDPs, or compensation where this is not feasible. However, some of the other criteria discussed address situations in which restitution is not possible or not relevant in a manner that is responsive to some of the current debates surrounding standards such as the Pinheiro Principles, while others set out principles applicable to both HLP restitution and broader reparations efforts.

For instance, the discussion of “long term safety and security” notes that situations involving significant risks of recurring disasters militate against rebuilding the status quo before displacement and may even require permanent relocation of affected populations (paragraphs 59 and 61). The subsequent section on “adequate standard of living” notes that housing assistance should be provided to IDPs regardless of their choice of durable solutions where they “did not have property prior to displacement” (paragraph 66).

Meanwhile, discussion of the (discretionary) criterion of access to effective remedies and justice describes the broader transitional justice framework in which property restitution, along with other relevant forms of reparation should be situated. As such, it points out a number of important principles such as the utility of programmatic approaches (para. 98), the need to distinguish between assistance and compensation (para. 99), and the importance of accessibility and the informed participation of IDPs in the design and implementation of such measures (paras. 101-3).

A second interesting HLP-relevant feature of the Framework is the nuanced manner in which HLP rights are themselves defined. Because the Framework does not simply reiterate any of the prior formulations, it represents a new iteration in a long line of articulations of the right, ranging from Annex 7 of the Bosnian Dayton Accords to Guiding Principle 29 to the Pinheiro Principles. As such it is likely to trigger further debate over how HLP restitution itself should be defined and how it relates to alternative remedies such as compensation. Two basic features are of particular interest.

First the scope of the right is defined very broadly, to include “not only … all residential, agricultural and commercial property, but also … lease and tenancy agreements” entitling displaced claimants to remedies for “lost ownership, tenancy rights or other access entitlements to their housing, land and property, whether they have formal or informal titles or rights on the basis of mere uncontested use or occupation ….” (para. 76).

This formulation corresponds roughly with European Court of Human Rights jurisprudence broadly defining property rights, as well as standards such as the Pinheiro Principles whereby for instance, holders of tenancy rights should “to the maximum extent possible” be able to repossess their properties on the same basis as owners (Principle 16). However, such a broad scope can lead to practical difficulties as, by definition, rights held on the basis of less exclusive forms of tenure are more likely to be contested by other parties that can credibly claim to have an interest.

On the other hand, the nature of the remedy is described unusually flexibly, with restitution remaining preferred “in principle”, but compensation permitted in lieu of restitution where this would be “more equitable, after weighing the different interests” (para. 78). With this formulation, the Framework departs fairly radically from the “impossibility” standard for allowing compensation in other HLP-related texts such as the Pinheiro Principles and moves closer to the case-by-case approach advocated for remedying human rights violations of a more general nature in texts such as the Van Boven/Bassiouni Principles, which states in relevant part that:

In accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international human rights law and serious violations of international humanitarian law should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation … which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. (Principle 18).

This departure from the impossibility standard for compensation set out in the Guiding Principles themselves (GP 29.2) is likely to be seen as a step backwards by some HLP rights advocates. However, from a practical perspective, it may also be a necessary corollary to the broad substantive scope of the right articulated in the Framework, as discussed above.

Many of the other recommendations for HLP restitution made in the Framework are more conventional, such as contextual approaches to institutional solutions (para. 77), alternative accommodation for occupants (para. 78), recognition of women and children’s property rights (para. 79), rejection of unfair application of abandonment rules and a call for systematic enforcement (para. 80). However, some further novel elements include a reminder that “returnees without property rights” and others still enjoy the prospective right to adequate housing (para. 80, as discussed above) and an assertion of states’ legal obligation to reconstruct wrongfully destroyed homes, as well as more negotiable duties to reconstruct homes under circumstances in which they are not directly liable (para. 81).

By including HLP remedies as one of the non-discretionary criteria for achieving durable solutions, the Framework firmly anchors HLP rights as a crucial element in post-conflict and post-disaster recovery. However, by defining these rights in a manner that departs from previous formulations, the Framework indicates the extent to which debates regarding their scope and nature remain open. While the persistence of this debate may blunt their advocacy impact in the short term, the fact that it has now been joined between parties that may disagree on many fronts but are united on the fundamental importance of HLP rights to vulnerable individuals is itself a form of progress.