Land, housing and property restitution after conflict: principles and practice
by Conor Foley, consultant, and Ingunn Sofie Aursnes, formerly Norwegian Refugee Council January 2006

In August 2005, the UN Sub-Commission on Human Rights approved a new set of ‘Principles on Housing and Property Restitution for Refugees and Displaced Persons’ (the Pinheiro Principles). The aim of the principles is to provide international standards governing one of the most basic entitlements for the survivors of a humanitarian disaster: the restitution of property.

Until comparatively recently, the land, homes and other possessions of the ‘losers’ of an armed conflict were widely regarded as part of the ‘spoils of war’ by the victors. Although the laws of armed conflict expressly prohibit the arbitrary destruction and expropriation of property, the right of people who had fled from their homes during a conflict to have this loss restored was largely ignored in practice. Governments and humanitarian agencies alike concentrated their efforts on finding alternative shelter, and addressing the immediate needs of refugees and the displaced.

While the basic right to land, housing and property restitution is clear, many of the issues involved are complex. Houses have often been destroyed or occupied by others, and these ‘secondary occupants’ may themselves have been driven from their homes. Official records proving ownership may have been destroyed, or were never entirely accurate to begin with. Ownership and transfer documents are often forged. In some cases, people may have been compelled to ‘sell’ their land or property under duress. In others, people who have lived in a particular place for years may not have an official title, because it was in the form of social ownership or only recognised through customary law. Sorting out such issues in a post-conflict environment, where there is often little rule of law and legal institutions may be weak or corrupt, is a daunting challenge.

Property restitution in the Balkans

The international community’s first serious attempt to tackle the issue of property restitution came during the conflicts in the former Yugoslavia. Forced evictions and secondary occupations were common practice in the Balkan wars, and all ethnic groups were affected.

A number of humanitarian NGOs, including the Norwegian Refugee Council (NRC), developed programmes to provide refugees and displaced people with practical assistance in recovering their homes, land and other property. In Bosnia-Herzegovina, information and legal aid centres were created to provide people with practical advice about their property rights, and to address some of the legal obstacles – deliberate as well as unintentional – that hindered the restoration of such property to its rightful owners. While some of these efforts were successful, and led to the symbolically important return of minorities to places such as Srebrenica, this must be balanced against the failure of the authorities in Croatia and Kosovo to address the plight of hundreds of thousands of Serbs who remain displaced from their homes, and who now constitute the largest group of refugees and internally displaced people in Europe.

The Croatian authorities have largely confined their efforts to evicting Croatian Serbs who were illegally occupying houses in Eastern Slavonia, while resisting their equally valid attempts to recover their original homes elsewhere in Croatia. NRC’s civil rights project (CRP) filed hundreds of cases on behalf of Serbian refugees and IDPs in Croatian courts. A database was developed and a report analysing the way that the Croatian judiciary handled these cases was published. Test cases were also brought to the European Court of Human Rights. However, the cost and time involved makes a test-case strategy problematic for humanitarian organisations that often cannot rely on being in a country for more than a few years. For example, it was not until September 2005 that the Grand Chamber of the European Court of Human Rights finally considered the case of Blecic v. Croatia, which concerned a woman whose house had been illegally occupied 14 years previously.

Land, housing and property rights were also an extremely sensitive issue in UN-administered Kosovo after NATO’s intervention in 1999. Throughout the 1990s, Albanians had suffered discrimination in asserting their property rights, and faced forced and arbitrary evictions by the Serbian authorities. Thousands of houses were destroyed during the conflict, and when the war ended many homes, abandoned by Serbs, were occupied by returning Albanian refugees. At the end of the conflict, in the face of a sustained campaign of discrimination, violence and intimidation, a huge number of Serbs and other ethnic minorities fled the province, and more left in subsequent years.

The UN imported a model of property restitution that was largely based on its strategy in Bosnia. In Kosovo, however, it met with a singular lack of success. Despite the presence of 40,000 international troops, and a huge international governance mission, minority return has been practically negligible. NRC’s programme in Kosovo initially provided little legal assistance to potential clients, since the new UN administration decided to remove property claims from the jurisdiction of the ordinary courts, instead creating special commissions to hear these claims. However, the Regulation empowering these bodies to start processing claims was not signed until over a year later, and their work was further delayed by organisational problems. A decision was made to verify all claims individually, and the whole process was overseen by international staff (because the impartiality of local staff was considered suspect). This meant that each statement and document had to be individually translated. Efforts to speed up the process and reduce costs resulted in some of the more difficult cases being postponed, and it has taken over five years to clear the backlog.

NRC’s programmes in Kosovo and Serbia were able to pursue some cases of illegal occupation because the properties concerned had subsequently been rented out to members of the international community. Action was also taken against NATO contingents that had illegally occupied people’s property. However, even where CRP was able to regain the right to a particular property on behalf of a client from an ethnic minority, he or she usually decided to sell it rather than reoccupy it because returning was considered too dangerous. A major lesson from the CRP in Kosovo is that, without adequate security guarantees, simply restoring property to its previous owner will not result in return.

A desire to reverse the effects of ‘ethnic cleansing’ in the Balkans undoubtedly gave considerable impetus to efforts at property restitution. However, it was not the only factor. The right of return has since been included in a number of peace agreements concluded under UN auspices, and institutions have been created in a number of countries to strengthen its enforcement. The UN High Commissioner for Refugees has also become increasingly active in supporting such restitution initiatives as part of its voluntary repatriation programmes. Some argue that the growing emphasis on repatriation may partly be motivated by the increasing reluctance of some countries to grant asylum to refugees. Nevertheless, it also provides an opportunity for millions of people throughout the world to return home.

People are also entitled to property restitution even if they are unable physically to reoccupy their homes. This right is underscored by the Pinheiro Principles, which also state that displaced people must be adequately compensated for their losses where restitution is factually impossible. Compensation is often a poor substitute for a proper restitution programme, but governments also sometimes use arguments about return and restitution as a convenient cover for their own failure to respect the rights of the displaced.

Although they are comparatively new, legal aid programmes in post-conflict environments have already helped hundreds of thousands of displaced people to obtain the restoration of their land, housing and property rights. NRC’s centres have also helped people to sensitise the authorities about the rights of refugees and IDPs in the areas where they have resettled. NRC’s programmes in Azerbaijan, Georgia, Sudan and Uganda spent much of their time helping displaced people in shanty towns and collective centres to improve their living conditions, resist evictions and assert their civil and political rights. Sometimes, the authorities have opposed granting these rights in case it implies acceptance of the permanent loss of disputed territory; it may also be the case that displaced people are simply more vulnerable to attacks on their rights.

Elsewhere in the world – notably in Afghanistan, Colombia, Sri Lanka, Burundi, Sudan and the Democratic Republic of Congo (DRC) – the restitution issues involved are far more complex. While in some of these countries people have been displaced from their homes on ethnic, religious or political grounds, in most instances dispossession has mainly been due to the state’s inability to protect the rights of its citizens. This begs the question whether it is possible to establish legal aid programmes in conditions where the rule of law is either strongly challenged by the presence of armed non-state groupings, or is completely absent.

While many of these programmes are still in their infancy, the answer would seem to be a qualified ‘yes’. In many of these countries, NRC’s intervention has been intended to support a peace process or reconciliation initiatives. In all of them, there is a recognised link between land, housing and property restitution and a strengthening of the rule of law. Lack of security has been the biggest problem in implementing NRC’s legal aid programme in Afghanistan, but this is a problem facing all humanitarian agencies in the country. However, in countries like Colombia, where lawyers and land rights activists are often specifically targeted for assassination, the programming challenges may prove particularly acute.

Colombia and Uganda have some of the world’s most progressive laws and policies relating to IDP rights. The challenge, of course, is to turn these paper commitments into real ones. In Afghanistan and the DRC, by contrast, people’s rights are not worth the paper they are printed on because the legacy of war and destruction means that most courts are unlikely to have a complete record of the state’s laws and decrees. Other problems facing the official court system include poorly trained and under-paid, or unpaid, judges; powerful warlords, who have become used to operating with impunity; deeply embedded cultures of corruption; and a lack of effective mechanisms to enforce their judgments.

NRC’s programmes have often instead relied on customary law and traditional conflict resolution mechanisms to solve legal disputes, with surprisingly positive results. In Afghanistan and Uganda, NRC’s legal counsellors are often called upon to mediate or act as guarantors in disputes that are essentially settled through tribal justice. A similar pattern seems likely in NRC’s newer programmes in Sudan, Burundi and the DRC. Again, it is too early to draw hard-and-fast conclusions, but it is clear that customary law is often filling the vacuum created by the collapse of the official legal system, and that legal aid in post-conflict environments can best be implemented through forms of community justice.

Property restitution: humanitarian implications

The humanitarian implications of this are extremely wide-ranging. While in the Balkans it was felt that top-down mechanisms were the best way of implementing restitution programmes, in other parts of the world a bottom-up process might prove more effective. This could require a longer engagement in countries than many humanitarian agencies are prepared to contemplate, and a deeper understanding of the social, cultural and political context in which they are operating. For example, NRC’s experiences indicate that Western legal notions about the private ownership of land and property may conflict with more socially-based forms of customary tenure. Care needs to be taken to ensure that well-intentioned reforms, imposed from the outside, do not make things worse.

Land and property rights have been at the heart of many of the world’s worst conflicts. The adoption by the UN of a legally-consistent and comprehensive set of restitution principles is undoubtedly a significant advance. The challenge facing the international community remains turning these words into deeds.

 

References and further reading

Conor Foley, A Guide to Property Law in Afghanistan, NRC and UNHCR Afghanistan, 2005.

Conor Foley, ‘Legal Aid for Returnees: The NRC Programme in Afghanistan’, Humanitarian Exchange, no. 26, March 2004.

 

Ingunn Sofie Aursnes was NRC’s ICLA programme advisor in 2004–2005. This article is based on a longer paper by Ingunn Sofie Aursnes and Conor Foley (Property Restitution in Practice: The Norwegian Refugee Council’s Experience), which is available on NRC’s website at: http://www.nrc.no/NRC_Property_restituition_in_practice.pdf.

Conor Foleyis a freelance consultant. He is currently working on a land rights programme with the International Rescue Committee in Aceh, and is developing a training programme on Economic, Social and Cultural Rights for the Organisation for Security and Cooperation in Europe (OSCE) in Bosnia-Herzegovina. . His email address is: conorfoley30@hotmail.com.

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