Iraq has come a very long way in recent times. Provincial elections have been impressive; the civil war has effectively ended; violence rates are down by more than 80 percent; and the political system is beginning to function. But its progress is fragile and several major unresolved issues could threaten the country's future stability. In fact, the very progress in security and politics that we are now witnessing brings with it another round of potential problems. Nothing is more fundamental than the effort to help more than 4 million individuals displaced by violence to return home safely without igniting another round of sectarian killing and cleansing as they do so.
As the security environment in Iraq continues to improve, many more people will want to come home. Already, the monthly return rate is estimated at about 30,000 persons. This is huge progress. Two years ago, the flow was 100,000 a month in the other direction.
But where are these people going? It is safe to assume that some of these initial returnees are reoccupying homes that were never taken over by others, or that have been recently vacated again. The real challenge will occur when previous property owners want their homes back and find squatters inside who have nowhere else to go. And for all the impressive features of recent elections, they did little if anything to move this issue toward resolution; in some ways, in fact, they made the potential for conflict even more vivid.
This issue is a general challenge for all of Iraq. It is also an acute challenge in the disputed northern oil city of Kirkuk and environs. In this part of the country, Kurds, Arabs, and Turkomen all claim land. They not only want many individual contested properties for their own people, they also disagree about whether part of this area of the country should join the autonomous region of Kurdistan. Last August, Kurdish peshmerga and Iraqi army forces almost came to direct blows over a section of disputed land along the so-called green line dividing Kurdistan from the rest of Iraq. Efforts to figure out Kirkuk's future are already badly delayed. The UN continues to search fruitlessly for a formula for a vote on that future that all parties can accept.
Iraq's court system is not up to this enormous challenge, whether in Kirkuk or nationwide. Many property records have been destroyed by war, and many witnesses killed or driven away, making it very hard to prove rightful ownership. Moreover, there are only about 1,200 judges in the entire country, to handle among other things the full range of violent crime cases and a detainee population numbering in the low tens of thousands at present. Even as the court system progresses, the rate at which it could handle disputed property cases is in the range of at best a few thousand a month. At that pace it would take decades to resolve the majority of the outstanding cases. Kirkuk and other problems cannot wait that long.
In fact, the challenge is not just one of legal capacity. The law itself is inadequate to the current circumstances. Current Iraqi code does not allow for the kind of flexibility needed to be fair to all parties and prevent a resumption of violence as those who lose court cases are told to vacate disputed properties. In many cases, squatters were not the perpetrators of the crimes that drove original owners from their homes and, in any case, the squatters often have nowhere else to live. It is only fair—and it is only prudent—to help them resettle elsewhere. In other cases, original owners may not feel safe returning to their homes, or may have already started life over elsewhere. In such situations, what they need is recognition of their legal rights to property, allowing compensation rather than restitution.
Current Iraqi law, like legal codes in most countries, emphasizes the rights of the true property owner rather than providing judges or other authorities the kind of options needed today. Any squatter is seen as having abused several protected rights. Pursuant to Penal Law No. 111 of 1969, several penal texts apply to his actions, including the violation of the inviolability of a housing place (Article 428). Notably, anyone who lives—without advanced permission or contract—in a house or apartment belonging to others is to be punished with imprisonment for no more than ten years or no less than three years.
We propose the creation of an independent arbitration mechanism to replace the role of the courts in handling disputed property cases. It should be provided with international expert advice since similar problems have been faced in other war-torn lands. It should also be given use of biometric indicator technology to help verify that no one abuses the system (for example by untruthfully claiming ownership of multiple properties). Its rulings would be binding and carry the force of law.
Rather than emphasize only the issue of who rightfully owns a home, which as noted above could be a recipe for conflict, the arbitration panels would have several options. In as many cases as possible, they would steer parties toward finding an acceptable compromise amicably. In cases where the panels needed to make rulings themselves, they would have means of protecting the rights and responding to the needs of all concerned, including those who lose a given case through no inherent fault of their own:
- In most cases, owners would be granted the right to reoccupy their homes. They could be awarded up to several thousand dollars to make repairs as needed. (At present, maximum compensation from the state to assist those returning is a few hundred dollars, in a housing market where the typical home is worth about $10,000).
- Squatters could be given up to several thousand dollars to relocate, depending on their needs and the arbitration panel's assessment of their relative guilt or innocence in carrying out crimes.
- Where owners did not want their homes back, they could be compensated at full pre-war market value by the panel. Squatters could be accorded the right to stay put if willing to pay for the property, perhaps at ¾ of its market value.
- Owners could also be given the right to demand rent from squatters, if the owners wished to reoccupy their homes at some future date but were not inclined to do so yet and the squatters wanted to remain in the meantime.
Let's assume that half a million families might ultimately avail themselves of this means of reclaiming their land, with an average cost to the state of $10,000 per case. The total cost to the government would then be about $5 billion. Admittedly, with oil prices down, that's real money for the new Iraq. But for a country with bank assets still measured in the tens of billions of dollars, it is eminently affordable as a way to address one of most serious remaining challenges to Iraq's future stability. Moreover, this program would not only be good for individual Iraqis, but for the country's economy. Among other benefits, it would jump start the construction market as repairs were made and new homes built by many families.
As Iraq's political parties prepare for parliamentary elections later this year, they should consider an idea like the above as a key part of their national platforms. Better yet, the existing parliament might try to pass legislation to create the necessary arbitration system right away. With major U.S. troop draw downs ongoing and expected to accelerate, there is little time to lose.
Judge Raid Juhi Hamadi al Saedi, who presided over Saddam Hussein's trial, is on sabbatical at Cornell University. Michael O'Hanlon is a senior fellow at Brookings and senior author of the Iraq Index.