Tag Archives: turkey

Syria is hemmorrhaging

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

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.

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The Arab Spring – updated challenges and outdated responses

by Rhodri C. Williams

Just a quick Sunday morning posting inspired by two commentaries plucked out of the Swedish foreign ministry’s list of current readings. Taken together, they arguably reflect two fundamental factors at risk of being obscured by the frenetic flow of images and information constantly pumping out of the contemporary Middle East – namely the unprecedented nature of some of the underlying changes driving the unrest and the antediluvian inability of human governance institutions to react effectively.

First out is Thomas Friedman, with an NYT commentary on how the Arab Spring is driven “not only by political and economic stresses, but, less visibly, by environmental, population and climate stresses as well.” Friedman goes beyond my (and others’) observations last year that the Arab Spring was partly motivated by distributional inequalities related to land rights to observe that the productivity of land in the Middle East and North Africa is fundamentally threatened by climate change. For instance, a UN report found that persistent winter droughts wiped out 800,000 Syrian farmers in the five years leading up to the current revolt, and such trends appear to be the new rule rather than the exception.

Friedman extensively cites a report by Francesco Femia and Caitlin Werrell of the Center for Climate and Security in Washington recommending a broader vision for responding to the environmental as well as the political risk factors in the Middle East:

“If climate projections stay on their current path, the drought situation in North Africa and the Middle East is going to get progressively worse, and you will end up witnessing cycle after cycle of instability that may be the impetus for future authoritarian responses,” argues Femia. “There are a few ways that the U.S. can be on the right side of history in the Arab world. One is to enthusiastically and robustly support democratic movements.” The other is to invest in climate-adaptive infrastructure and improvements in water management — to make these countries more resilient in an age of disruptive climate change.

However, a second commentary by Timothy Garton Ash demonstrates how difficult engineering such a response may be. Garton Ash alleges that Syria is being left to an “Ottoman fate” – one that is almost entirely subject to local and regional calculations of power and interest that have have little time for the suffering of ordinary civilians caught up in the violence. Garton alleges that the reason that Europe, in particular, has failed to recognize its interest in seeking a just resolution of the issue is related to its dithering over Turkey’s candidacy to the EU:

The balance of forces around Syria would be different if the historically new, shared sovereignty model of the EU had reached out to embrace Turkey, as it has been promising to do – incredibly, in both senses of the word – for nearly 50 years, since the association agreement of 1963. But it has not. Europe, as Europe, is inaudible on Syria as on so many other issues. And so the fate of that country’s brave resisters and suffering civilians depends on the old-fashioned regional competition of diverse sovereign powers.

 Garton Ash’s implication that a humanitarian intervention should be sought in Syria will be controversial, in the context of a much broader debate raging over this issue. However, his other implication – that Europe has still not learned that failure to positively engage with its periphery will ultimately bring negative consequences – is harder to dispute. This finding is particularly poignant on the 20th anniversary of Europe’s dithering over the breakup of the former Yugoslavia – and particularly worrisome in light of the new climate change-related challenges to regional and global governance that we were so blissfully unaware of back then.

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.

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When do home and property part ways? New paper on the ECHR and the Cyprus property question

by Rhodri C. Williams

I’m very happy to announce the release of a new paper on the European Court of Human Rights and the Cyprus property issue (available here) that I wrote together with Ayla Gürel for the PRIO Cyprus Centre. The primary goal of the paper is to parse through the implications of the Court’s recent jurisprudence for the resolution of the property issue in the context of ongoing talks on the reunification of Cyprus. Our main conclusion is that the effect of these cases is to rule out some of the more extreme proposals from both sides, effectively tightening the legal parameters within which the negotiators nevertheless retain considerable discretion to arrive at a political compromise.

The analysis revolves around a series of judgments that subtly broke with the Court’s earlier caselaw on Cyprus and culminated in the March 2010 decision in Demopoulos v. Turkey. As I described in an earlier note on this decision for International Legal Materials, the Demopoulos Court rejected the Greek Cypriot position that a remedy for property violations resulting from the 1974 Turkish invasion of northern Cyprus would have to take the form of restitution except in cases where this was ‘materially impossible’. Instead, the Court approved a Turkish Cypriot property commission that was mandated to offer remedies involving compensation or exchange (rather than restitution) in a much broader range of circumstances than material impossibility.

While the implications of this decision for the broader discourse on ‘housing land and property’ (HLP) issues remains highly topical, we focus our analysis on how the Demopoulos line of decisions fits into the Court’s evolving caselaw on the application of the European Convention on Human Rights (ECHR) in ‘transitional’ settings such as Cyprus. One of the issues we look at, for instance, involves debates surrounding the application of the Court’s new ‘pilot judgment procedure’ in these cases. However, I think one of the most interesting aspects of the case – and one which seems to have drawn surprisingly little attention to date – is the extent to which the Demopoulos ruling demonstrates the power of Article 8 analysis (on the right to the home under the ECHR) in shaping Article 1 Protocol 1 outcomes (related to the right to property).

The mutually reinforcing nature of Article 8 and Article 1 Protocol 1 is hardly news, and the significance of this linkage in restitution settings has been commented on by a number of observers including Antoine Buyse, author of the ECHR Blog. What is striking in the Demopoulos case is that one of the implicit grounds for the Court’s ruling appears to be a determination that the protection of rights to the home under Article 8 of the ECHR have by and large shifted from Greek Cypriot property claimants (who remain legal owners but are increasingly unlikely to be found to have significant links to homes they left behind two generations ago) and to Turkish Cypriot occupants. While the Court does not directly state that occupants of claimed property are now protected under Article 8, such a finding is arguably implicit in the Court’s concern that blanket restitution could give rise to  ‘disproportionate new wrongs’ (para. 117):

The Court must also remark that some thirty-five years after the applicants, or their predecessors in title, left their property, it would risk being arbitrary and injudicious for it to attempt to impose an obligation on the respondent State to effect restitution in all cases, or even in all cases save those in which there is material impossibility, …. It cannot agree that the respondent State should be prohibited from taking into account other considerations, in particular the position of third parties. It cannot be within this Court’s task in interpreting and applying the provisions of the Convention to impose an unconditional obligation on a Government to embark on the forcible eviction and rehousing of potentially large numbers of men, women and children even with the aim of vindicating the rights of victims of violations of the Convention. (para. 116)

In other words, it appears that the Court has accepted that long-term occupation of claimed property can give rise to protected rights to the home, and that the existence of these rights can legitimately limit the ‘possibility’ of restitution in favor of owners. If this proposition holds up, it may come to be seen as a significant precedent that the current debates surrounding post-conflict HLP rights will need to come to grips with. On the other hand, it will also be crucial to distinguish the Court’s findings based on a number of factors unique to the Cyprus context such as the protracted nature of displacement there and the failure of the parties to date to achieve a negotiated settlement.

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.

———————

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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NYT on earthquakes and urbanization

First, on an administrative note, sorry about the recent gap in postings! Its lots of fun blogging but when the wife is on a business trip and the kids come down with a fever, its inevitably one of the first things to go out the window. Temporarily. I have a number of interesting posts in the works, including the long-promised analysis of the new Durable Solutions Framework for IDPs.

In the meantime, it had just occurred to me this morning to wonder when journalists might begin to devote their attention to the many cities (and megacities) beyond Port au Prince that are sitting perilously close to geological fault-lines. Ten minutes later, I opened up the New York Times to discover an article on earthquakes and urbanization that was both terrifying (experts estimate that a quake on Haiti’s scale would kill up to one million people in Tehran) and hopeful, particularly in its detailed description of comprehensive disaster risk reduction measures underway in Istanbul since 2006.

The PACE ‘Poulsen Principles’ – Can the CoE shake up Europe’s restitution debate?

Poulsen proposed property principles…

by Rhodri C. Williams

In a report on protracted displacement in Europe last May, the IDMC pointed out stalled and moribund property restitution commitments as one of the key hurdles to achieving durable solutions for some 2.5 million European IDPs, many of whom have not seen their homes in a decade or more. Not long afterwards, the Parliamentary Assembly of the Council of Europe (PACE) identified the same issues in its Recommendation 1877 (2009) on “Europe’s forgotten people: protecting the human rights of long-term displaced persons”, in which it encouraged member-states to take a number of steps, including restitution:

15.3.6. restitute property or occupancy/tenancy rights and/or provide prompt, effective and fair compensation where restitution is not possible, and repair or rebuild restituted houses or construct alternative adequate accommodation;

On the 28th of January, PACE significantly clarified this obligation through the passage of a new Resolution 1708 (2010) and Recommendation 1901 (2010) on “solving the property issues of refugees and displaced persons”. Both documents built on a report drafted by Parliamentarian Jorgen Poulsen and adopted by the PACE Committee on Migration, Refugees and Population the previous month. Wolfgang Petritsch, the former High Representative to Bosnia during the heyday of property restitution there and current Austrian Ambassador to the OECD, made several presentations in favor of the Resolution and Recommendation, and they were passed by a vote of 93-1.

…and Petritsch praised them

The Resolution and Recommendation were initially conceived of perhaps primarily as an endorsement of the 2005 “Pinheiro Principles”, in a similar manner to that in which the PACE had previously endorsed the 1998 Guiding Principles on Internal Displacement. However, in order to reflect the extensive body of regional practice and jurisprudence in this area, the Resolution was drafted in a manner that set out a series of Europe-specific restitution principles recommended to CoE member states (para. 10). Meanwhile, the accompanying Recommendation requested that the Committee of Ministers of the CoE undertake a study on European post-conflict restitution practice with a view to creating detailed guidelines that would focus on “issues of particular relevance in the European context”.

In discussing the European restitution context, it is not really possible to get around the influence of the European Court on Human Rights (ECtHR) and the “Poulsen Principles” can be seen as a product of this influence, both for better and for worse. In terms of substance, the Court’s decisions have often been quite progressive in areas such as the obligation to provide remedies for individual violations notwithstanding ongoing peace talks, recognition of de facto possessory rights, and compensation for income lost as a result of displacement. In fact, the Court’s extensive jurisprudence on the right to property under Protocol One to the ECHR initially led to a knee-jerk tendency among practitioners in restitution settings to assume that no circumstances were so novel or complicated that they might not one day be resolved through a dispositive ruling from Strasbourg.

On the other hand, many of the protracted displacement situations in Europe date back to the early 1990s, when most of the affected countries had not yet joined the CoE and become subject to the Court’s jurisdiction. In this context, expectations that the Court could entertain such cases risked being dashed on a strict interpretation of their admissibility rationae temporis. In the 2006 Blecic v. Croatia ruling, the Grand Chamber took a hard line, accepting referral of a case involving the wartime confiscation of minority Serbs’ socially-owned apartments only to rule that the original admissibility ruling – made four years previously – had been incorrect. Parties that had looked to the Court for a binding legal fiat in this question presumably included not only advocates for dispossessed Croatian Serbs but also EU enlargement bureaucrats groping to understand what weight to give the issue in Croatia’s accession talks and Croatian officials with a legitimate need to understand what liabilities the state had incurred. In a sense, all these actors had, after pinning their hopes on a single leading case, effectively landed back on square one.

The report underlying last month’s Resolution and Recommendation draws a lesson that is particularly relevant to protracted displacement situations dating back to the early 1990s; namely that the Court can usually provide the rules for interpreting restitution obligations in abstract but cannot always apply them in specific displacement cases. As such, the ‘Poulsen Principles’ can be said to affirm rules derived from ECtHR jurisprudence as well as international law and standards, but may signal a shift to a process in which political bodies such as PACE insist on their application, ending a tradition of reliance (some might say over-reliance) on the Court to untangle problems that were always just as much political as legal. For instance, in its discussion of occupancy rights to the type of apartments at issue in Blecic, the report notes the following:

56.       It is undeniable that apartments held in occupancy and tenancy rights were viewed as homes and valuable assets by thousands of persons who currently remain displaced; that their displacement in situations of armed conflict or human rights violations was involuntary; and that but for their displacement, many would have long since acquired full legal ownership of their apartments. Redress for these losses should be seen as a legal obligation and a benchmark of European integration in the spirit of the European Convention on Human Rights and the Copenhagen Criteria.

Practitioners concerned with property conflicts in developing countries have been known to object to the imposition of European models. As they note, restitution scenarios like Bosnia presuppose a degree of legal capacity, resources and international leverage that cannot be replicated in much of the rest of the world. However, these factors also imply a special responsibility for European countries to resolve the displacement that still affects millions of their citizens. Among all the tools Europe has at its disposal to resolve displacement, the stick of regional human rights law and the carrot of European integration loom perhaps largest. The Poulsen Principles may serve as a reminder that the former will always be limited without being harnessed to the latter.