Tag Archives: UN

We have met the enemy and it is We (the Peoples)

by Rhodri C. Williams

Its now twelve years since the 9-11 attacks sent the post-Cold War human rights revival into a tailspin, and two years since the outbreak of what would quickly amount to civil conflict in Syria – where 70,000 have died and millions are displaced; where the international community cannot even pay for relief, let alone intervene to stop the regime from firing scud missiles into cities it purports to be defending; where the post-Ottoman Middle Eastern political order threatens to crack into pieces, risking the worst collective foreign policy failure since Bosnia, and where the ‘responsibility to protect’ doctrine has met an untimely and inglorious end .

So you might think we would all be pretty inured to a nip of salt with our humanitarianism these days. Not so, it seems. Its been a particularly bad run recently for those who still reflexively think the UN is part of the solution (hey, I’m with you) despite all better advice. I’m not quite sure where to start. Perhaps with the UN decision two weeks ago to assert diplomatic immunity for having failed to take measures to ensure that its peacekeepers’ latrines avoided triggering a devastating outbreak of cholera in Haiti. Particularly rich, as the Economist points out, coming on the same day as the UN pilloried Haiti for failing to hold its former dictator ‘Baby Doc’ Duvalier accountable for his crimes.

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Post-conflict property restitution in Kosovo: A continuing challenge

by Guido van Heugten

Guido van Heugten graduated from the ‘NOHA’ masters program in International Humanitarian Action at Uppsala University). He wrote his thesis on ‘Post-Conflict Property Restitution in Kosovo’.

Even over a decade after the violent conflict of 1999, Kosovo is often still referred to as a ‘hot potato’ that has been passed on from the UN to the EU, which is currently desperately searching for ways to find a resolution for the dispute between the governments in Belgrade and Pristina. The recently elected Serbian president Tomislav Nikolic has stated that Kosovo Serbs are currently living under threat of genocide and that he would not rule out a partition between ethnic Serb and Albanian regions. UN Secretary General Ban Ki-Moon, on a visit to Kosovo, tried to focus more on common challenges and opportunities and made another attempt to stress the importance of dialogue in order to find resolution to the regions issues.

The population of Kosovo is indeed still much divided between the lines of ethnicity and identity, fuelling a volatile security situation, especially in the Northern provinces surrounding the divided town of Mitrovica. Together with resolution of the political problems relating to Kosovo’s continuing status as a UN protectorate, it is crucial that serious efforts are being made by all stakeholders to finish the property restitution process and ensure respect for housing, land and property (HLP) rights in the context of conflict resolution efforts in the region.

Due to the 1990s trends toward increasing displacement and internal conflicts and the decreasing will of Western states to provide asylum, voluntary return (as opposed to resettlement) became the preferred policy when dealing with displaced populations in post-conflict contexts. This is also expressed by the development of international policy around that time, culminating in the adoption of the ‘Pinheiro Principles’ on Housing and Property Restitution for Refugees and Displaced Persons in 2005.

The 1998-99 conflict in Kosovo caused immense damage to property, which the Office of the High Commissioner for Human Rights determined was not solely an act of vandalism, but an attempt at wiping out signs of the presence of entire populations, including their national and cultural identity.[1] In most UN peacekeeping missions, HLP rights usually do not play a very central role, even though land and property issues are often an underlying cause of conflict. Kosovo however, has been one of the few places where the UN has decided to give property restitution an important role in the peace-building process.[2]

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Another UN peacekeeping meltdown in the make … but who’s got time?

by Rhodri C. Williams

Hat tip to Shane Quinn for forwarding me an alarming Guardian commentary by Simon Tisdall on the humanitarian meltdown presumably taking its leisurely course as I write this. An encampment of 60,000 wretched displaced persons “emptied overnight” in the face of an advancing rebel army covertly sponsored by neighboring states intent on natural resource extraction. The UN deeply committed to a corrupt and abusive national army that is melting away along with the displaced. Some peacekeepers futilely attacking the rebels from helicopters as the rest nervously wait for them to arrive.

Its Goma, in eastern Democratic Republic of Congo (DRC). But how is anyone supposed to keep track right now, with Syria and now Gaza and everything else, like the inundation of Haiti and destruction of its food for next year completely overshadowed. And anyway, eastern DRC is the emblematic basket case, if its been this bad for this long, how could it get worse? If you want a vision of the depths of human misery and debasement, look at the situation there four years ago. What could change?

What worries me – beyond the profound waste of it all – is the UN being up to its neck in this. Monusco is a party to a conflict most people couldn’t locate on a map let alone understand, with a long hangover from the Rwandan conflict, the transplantation whole of one of the world’s most vicious rebel groups from Uganda, and natural resources galore to fuel and pay for people’s indulgence in their worse instincts, seemingly until the end of time. And all this at a time when the UN is still reeling from having failed – profoundly – to take steps that might have saved at least some of the 40,000 civilians mown down in 2009 during the final stages of the war in Sri Lanka.

So maybe Goma will be the next public failure of the UN, ironically taking place just a few miles away and a bit shy of two decades after its first great post-Cold War stagger in Rwanda, in 1994. Or maybe it won’t. Negotiated resolution, withdrawals, resumption of the miserable status quo. At times like this, I can’t even formulate the questions, let alone think of the answer.

UN High-Level RoL meeting to take up HLP issues … maybe

by Rhodri C. Williams

Last week, I had the pleasure of attending a seminar marking the tenth anniversary of Sweden’s government agency “for international peace intervention”, the Folke Bernadotte Academy (FBA). The topic of the seminar was rule of law (RoL) in general and this Tuesday’s UN conference on the issue in particular. The high level meeting at this year’s 67th session of the UN General Assembly is one of these periodic, frantic plenary meetings where all the states in the world along with a plethora of observers and NGOs culminate weeks of behind-the-scenes wrangling with (hopefully) the adoption of an outcome document that may push an important issue forward a few steps.

In the best case, the outcome will have legs even if the grandiosely named meetings themselves quickly fall into the obscurity of UN genealogy. Students are frequently bemused to hear that they failed to notice a “World Summit” hosted by the UN in 2005. However, few have failed to notice the resulting responsibility to protect (R2P) doctrine. And for those of us in the rights-based humanitarianism branch, the strong endorsement of the UN Guiding Principles on Internal Displacement buried in paragraph 132 of the Outcome Document may come to be seen as a pretty important step in the long march from soft law to opinio juris. But I digress.

Some of the talk at the FBA seminar was about the high-level politics of the high-level meeting, and particularly an emerging tendency to distinguish RoL as applied at the international versus the national levels. This has apparently been one of the key debates surrounding the drafting of the outcome document, with states that see domestic RoL as one of their own virtues more inclined to promote it to others (and the targets of their exhortations curiously more interested in the international variant). However, all indications are that there will be a buffet-style compromise, with both national and international RoL, as well as various ‘nexuses’ in between on offer.

This is perhaps most clearly evinced in the UN Secretary-General’s preparatory report for the conference, which proposes the adoption of a broad and often ambitious programme of action. Some proposals are simply unrealistic (states should ‘remove any reservations’ to UN treaties they have ratified, para. 12). Others are curious to the point of evoking typos (UN post-conflict RoL assistance should ‘promote gender’, full stop – para. 24). However, the overall feel of the document is quite sound, reflecting an increasingly emphatic accommodation of legal empowerment and economic/social concerns in an area of practice that arguably began as a bastion of orthodox civil and political imperatives.

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Addressing injustice and managing expectations: Displacement and transitional justice discourses in Northern Uganda

by Rhodri C. Williams

Last week, I announced the publication of a new book on Displacement and Transitional Justice and provided an overview of some of the main themes touched on in my chapter on restitution in humanitarian and transitional justice contexts. My basic conclusions were twofold: First, that restitution has come to the fore in humanitarian practice not only due to its practical utility as a means of facilitating durable solutions to displacement, but also as part of the adoption of rights-based approaches by humanitarian actors. And, second, that restitution may actually be a more comfortable fit in transitional justice practice, given both the latter’s more direct concern with redressing violations (as opposed to ameliorating resulting vulnerability) and its political emphasis on sustainably transforming societies.

I wanted to return to these themes because I believe it is crucial to acknowledge the difficulty of drawing any tidy conclusions in any of these areas or even assuming that well-intentioned international forays into their post-conflict application are always effective. In fact, both transitional justice and humanitarian responses to displacement remain contested terrain, and one of the challenges in writing on restitution in this context was the need to deal with challenges to the legitimacy and effectiveness of both fields while describing a tactic for addressing past displacement – restitution – that has also become mired in controversy.

The whipsaw nature of these debates is exemplified by comparing recent commentaries on their fallout in Africa, and specifically Uganda. First, in a 2009 press release, the Refugee Law Project of Uganda’s Makerere University welcomes the recently adopted African Union ‘Kampala Convention‘ on internal displacement as “an important step towards clearly recognising the role of transitional justice in resolving forced migration situations”. The drafters of the press release made this connection in light of the Convention’s inclusion of reparatory measures meant to “take stock of the causes of and redress the violence of displacement.”

However, two years later, Makerere University visiting scholar Adam Branch wrote in Pambazuka to excoriate both concepts. While the earlier Makerere University press release and Branch’s later critique represent diametrically opposed viewpoints on the potential for international discourses to address local atrocities, I believe that they are also intimately linked. In essence, the Makerere statement represents the type of expectations – both realistic and unrealistic – that humanitarian responses to displacement as well as transitional justice measures tend to be burdened with. Branch’s article, by contrast, represents the tendency to dismiss both categories of measures when these expectations fail to be fully met.

This dichotomy of responses raises a number of familiar dilemmas. At a broad level, it invokes the risk that any international engagement always bears, namely that attention may be diverted from the primary responsibility of domestic actors to guarantee respect for human rights. Assuming that international engagement is unlikely to grind to a halt tomorrow over this moral hazard, a more practical dilemma involves how international actors and standards can make a positive difference without raising expectations that exceed their capacities, mandates and resources. In analyzing this question, it may be helpful to undertake a closer reading of Branch’s critique.

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Mainstreaming IDP principles in capacity building efforts: A chance missed in Kosovo

by Milica Matijevic and Massimo Moratti

Although more than a decade has passed since the end of hostilities in Kosovo, the process of post-conflict property restitution is far from complete. Apart from the cases still awaiting adjudication before the Kosovo Property Agency (KPA), the mass claims mechanism dedicated to post-conflict property repossession, the local judiciary also deals with a significant number of conflict-related property claims that fall outside of the mandate of the KPA. These cases concern issues crucial to durable solutions for internally displaced persons (IDPs) from Kosovo, such as illegal occupation of property, forged contracts of sale, exchanges under duress, and illegal demolition of property.

The project “Further support to IDPS and Refugees in Serbia” has recently published a report on the difficulties faced by IDPs in accessing the court system in Kosovo and how a number of bureaucratic requirements, apparently of a merely technical nature, in reality have a significant impact on access to justice for IDPs, potentially violating their right to fair trial. The report argues that for these cases to be effectively resolved, the justice system needs to take into account the fact of displacement and the difficult position of IDPs.

According to international fair trial standards, access to justice should be granted for everybody, regardless of one person’s status. In the context of Kosovo this would mean that the local laws and institutions should enable effective access to courts, not only for the resident population but also for those who were displaced as a consequence of conflict (who are nevertheless considered as habitual residents of Kosovo). This obligation becomes even more compelling when IDPs are predominated by the largest single ethnic minority group, as it is the case in Kosovo.

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In search of a duty-bearer: No remedy for destruction of property during Kosovo’s international supervision

by Milica Matijevic and Massimo Moratti

It is easy to guess that, as in most legal aid programmes implemented in post-conflict settings, the majority of cases handled by the EU funded legal aid project “Further support to refugees and IDPs in Serbia” concern repossession of property owned by IDPs and refugees. These are mostly cases of property restitution and/or compensation for property that can’t be repossessed. This topic has been the focus of a newly released report dealing with these aspects of the right to property restitution and/or compensation.

When dealing with competent officials in the field, be they international or domestic, we often hear the statement that the case of Kosovo is “specific” or “particularly complicated”. For those dealing with housing, land and property rights, this should be nothing new. Every displacement crisis has its own specific aspects and by their own inherent nature property cases are very often “particularly complicated”. Unfortunately, the rationale behind the explanation of this kind is that international human rights standards shouldn’t be applied, and possibly the status quo shouldn’t be touched.

In its most recent report the Project assesses a number of questions “specific” to the context of Kosovo and, in fact, shows how international standards are applicable to the Kosovo context.  Although it is not always clear who the duty bearers are, it is clear that IDPs and those forced from their homes by the conflict are the right holders and that the difficulty in identifying the duty bearer renders the rights of IDPs meaningless.

The report proceeds from the general rule that internally displaced persons enjoy the same set of rights as any other citizen of the state within which they reside. When applied to the situation of an internally displaced person from Kosovo this would mean that they can assert their property rights on the same basis as any other resident of Kosovo.

Notwithstanding the fact that the applicable legal framework contains strong guarantees of the right to property, including the right to be compensated for unlawful damaging or destruction of one’s property, the position of IDPs is often not adequately taken into account by the relevant national and international authorities and their claims remain largely unattended.

The report deals with a specific caseload, the famous “18,000 compensation claims”. These are claims that were brought by IDPs from Kosovo against the UN Mission in Kosovo (UNMIK) and the Provisional Institutions of Self-Government in Kosovo for compensation of damages to private property that occurred as a result of the 1999 NATO air campaign and the March 2004 riots. Those claims were for long time “frozen” by a request of UNMIK, which later on was found in violation of the right to a fair trial by the UNMIK Human Rights Advisory Panel, in Opinions released on February 23, 2011 (Esat Berisa Case no. 27/08 and others v UNMIK) and March 24, 2010 (Petko Milogoric, Case no. 38/08 and others v UNMIK)

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Redress without fault? UN to promote ‘automatic’ state reparations for terrorist attacks

by Rhodri C. Williams

The Guardian informs about a new report slated for release in June by the UN’s special rapporteur on counter-terrorism and human rights, Ben Emmerson. The report is said to propose “automatic legal rights to compensation and rehabilitation” for terror victims “under far-reaching changes to rebalance international law in favour of victims”:

The Emmerson report, if accepted, would have the effect of obliging all UN states to adopt a uniform set of standards, establishing more firmly in international law the principle that terrorist acts amount to violations of the human rights of the victims, irrespective of the question of direct or indirect state responsibility.

Sound intriguing? At first blush, this certainly seems to go beyond developments such as recent European Court of Human Rights jurisprudence requiring states to provide reparation to victims of foreseeable disasters that the state did not take reasonable steps to mitigate (on which, see Walter Kälin and Claudine Haenni here).

The text of the article implies a scoop, breathily citing details of the report “which have been obtained” by the Observer. However, fortunately for the rest of us, the entire draft report can be “obtained” by downloading it directly from the Rapporteur’s website. And it is worth a read, particularly paragraphs 49-63 on reparations.

Interestingly, the Special Rapporteur has not created an entirely ex gratia framework, but rather extended the notion of the state’s positive obligation to prevent terrorism based on a victim-centered approach. The idea that victims have undertaken an involuntary sacrifice on behalf of the state is endorsed (para 54), and the fact that it is virtually impossible to seek reparations from the perpetrators of terrorism is asserted as “perhaps the most fundamental point” (para 56). However, the existence of a human rights-based ‘duty to protect’ from terrorism appears to play a significant role:

…the determination of State responsibility for an alleged failure to take positive operational steps to prevent an act of terrorism can be fraught with evidential difficulties. If the approach advocated by the Special Rapporteur is followed, States will be under an obligation to provide reparation without imposing an additional burden on the victims or their next-of-kin to prove conclusively that public officials were at fault. (para 55)

Curiously, the report cites the Van Boven-Bassiouni Principles (at para 51), but only on the basic point of substantive reparations for rights violations, but not the implication in paragraph 15 thereof that the state should assume up-front responsibility for repairing rights violations by non-state actors, with the ability to later seek indemnification from the real perpetrators:

In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.

The section ends with an interesting discussion of the significant body of domestic law and practice that already exists in this area. According to the Guardian, the report is to be “presented to the UN human rights council in Geneva on 20 June and the general assembly in New York on 28 June” and already enjoys significant backing. Definitely one to watch.


Addressing systemic obstacles to restitution in Kosovo: Legal aid as a fact finding tool

by Massimo Moratti

In post conflict settings in which internally displaced persons (IDPs) seek to regain possession of their properties, the provision of legal aid becomes an essential service for the protection of their rights in the place of origin. The importance of such services is even greater when significant barriers arise between the place of origin of the IDPs and the place where they are actually displaced. These barriers may not only consist in the physical distance between the two places, but also in the fact that the place of origin of IDPs (in this case, Kosovo), and the place of displacement of IDPs (Serbia) hold diametrically opposed views on the future of Kosovo and are evolving into two separate legal systems with little or no institutional communication. Phone lines, mail and official communication are interrupted and, pending reciprocal recognition or an overall settlement of the issue, their resumption cannot be envisaged in the immediate future.

For these reasons, the Delegation of the European Union to Serbia has partnered with the Serbian authorities to provide legal aid services to IDPs from Kosovo as well as refugees from Bosnia and Croatia through Instrument for Pre-Accession Assistance (IPA) funding. Continue reading

Upcoming guest posts: (1) post-disaster rights to housing, and (2) land in conflict prevention

It is a great pleasure for me to both introduce two very interesting new reports and announce that their authors will shortly be providing a more personal introduction through guest-postings on TN.

First, the UN Special Rapporteur on the right to adequate housing, Ms. Raquel Rolnik, has prepared her latest report, which will be presented at the 66th session of the General Assembly in October. Where Ms. Rolnik’s previous report (introduced briefly in TN here) focused on the right to housing in the wake of both conflict and disaster, the current report focuses more narrowly on disasters (a theme the SR also took up in the context of a recent trip to Haiti). Ms. Rolnik’s report cannot be officially distributed until after its presentation to the GA in October, but is currently available on her website. While the report makes for interesting reading as such, I’m particularly pleased to announce that the SR and her team will soon provide further insights in a guest post on TN.

Second, Quiet Diplomacy has just launched a new Handbook on Land and Conflict Prevention. While this might sound like a contradiction in terms to some, the Handbook offers “step-by-step guidance for conflict prevention actors … in finding the space for legal, institutional and policy reform in the land sector, and promoting just and workable solutions.” It sounds like a tall order but one that is all the more important in era when the corrective approach adopted in texts like the Pinheiro Principles is increasingly required to accommodate new distributive demands. And once again, I’m very pleased to announce that the authors, John Bruce and Sally Holt, will shortly be sharing some of their insights on TN.