First, I would like to thank ODI for hosting this conference and for inviting me to discuss the work of the Brookings-Bern Project on Internal Displacement. Our Project at the Brookings Institution in Washington, supports the mandate of Walter Kälin, the Representative of the Secretary General on the Human Rights of Internally Displaced People. During his country missions the RSG has identified land rights as a critical issue in finding durable solutions for IDPs. He has asked me to prepare a desk study on the impact of customary land tenure on IDP return processes.
Here, I will provide a brief overview of three key issues that arose from my review: 1) First, traditional processes can both facilitate but also complicate returns; 2) Second, policies that try to impose uniform, statutory land management systems can have unintended consequences for returnees; and 3) Third, customary tenure often has a distinctly adverse impact on returning IDP women.
I’ll conclude with a preliminary list of policy responses that I hope will prompt discussion.
The Loss of Traditional Knowledge
Customary systems are guided by the traditions of the group they are meant to serve. These traditions sometimes espouse collective or individual land rights or an amalgamation of both. Often, customary systems are preserved through oral traditions and land is demarcated with natural boundaries. During displacement, customary knowledge can easily be lost with the passing of community elders and as demarcations disappear. IDP returns can lead to much confusion and infighting, particularly where arbitration mechanisms are underdeveloped. As a result, displacement may be prolonged or even renewed. The failure of traditional authorities and systems to remain in place during displacement can undermine the community’s faith in such processes. Moreover, IDPs who abandon particularly valuable land are vulnerable to investors who may remain unaware of the existence of customary tenure or purposefully fail to recognize it. There are many cases where IDPs have returned to find that their former homes have become sites of new development initiatives. The planting of African Palm on land belonging to Colombian IDPs is a prime example of this.
Without exaggerating the benefits of customary tenure, it is important to remain aware of its potential to assist returnees in some circumstances. Customary tenure often promotes multilayered forms of land use that can accommodate different lifestyles and livelihoods. Such community-oriented systems could be useful to governments tasked with reallocating land to IDPs, particularly where shortages exist. Indeed, cooperation and accommodation may be more pronounced in customary systems than statutory systems that focus on individual ownership and control. Of course, the feasibility of restoring any customary system will be very much dependent on the extent to which the values behind it still resonate with the community in question.
Yet, it is not always possible or desirable to facilitate the return of displaced people to their home areas. Where secondary occupants have established themselves it may be difficult to justify their eviction – particularly where they have invested in the land or have lived on it for a significant period of time. Where land is held customarily, new occupants are more likely to be unaware that the land belonged to others. In response, governments and peace mediators must be prepared to create fair restitution and compensation packages where necessary. Additionally, making sure that IDPs are consulted throughout can help to ensure that the return process is transparent and evenhanded and can encourage the use of culturally relevant processes.
Many development actors have advocated for the replacement of customary systems with statutory tenure. Yet the task of unifying land management requires a level of institutional capacity that is often out of reach of many post-conflict states. A failed attempt could result in dual usage of customary and statutory systems where the latter is accessible only to an elite few.
Moreover, the use of dual tenure systems can result in widespread confusion for returnees. IDPs may be unfamiliar with recent changes in land management, or may be unaware that such changes have even occurred. Dual systems often result in competing claims where one individual has a documented land title and the other has a traditional right. Such confusion was endemic in Burundi following the implementation of the Burundi Land Code in 1986 amidst displacement, a lack of government capacity and corruption. Recent estimates find less than 5% of Burundi’s land is registered under the Code and customary systems continue to predominate. This example also suggests that public education is imperative to any modification in land management strategies.
There are many reasons why the particular situation of women must be considered when planning returns to areas of customary land tenure. For one, displaced women are likely to be cast as heads of households following the death or absence of their male relatives. As the sole-breadwinner, returning women’s ability to secure a livelihood for herself and her family will, in many cases depend on her ability to secure the use or ownership of land. Yet customary systems often fail to recognize women’s inheritance rights and traditions may limit women’s ability to use the land.
Customary systems are often touted for ensuring a social security network for those members of the community who are unable to meet their basic needs. However, the upheaval brought about by displacement may seriously undermine such networks. This can amplify women’s relative disadvantage and leave them even more vulnerable. Women’s displacement may be unduly prolonged by their inability to access and navigate the land administration system.
It is important to remember that distribution of land is akin to the distribution of power. Where redistributed land is inadequate in its scale or in its fertility, returnees are unlikely to become self-reliant. Such inequities in land ownership and use will ultimately reduce women’s economic and social power – further entrenching their relative disadvantage. Moreover, the organizational structure of land is as important as its quantity and quality. Research from Mozambique illustrates that agrarian women accustomed to customary systems held less economic power and lost the impetus to farm collaboratively following their resettlement under statutory systems. While these findings can not be generalized beyond this study, it suggests that much can be gained from viewing tenurial status with a gendered perspective.
To address some of these issues, the RSG, the Fourth World Conference on Women and the 1995 Conference on the Legal Status of Refugees and IDP Women have recommended that governments adopt legal measures to address the property and inheritance rights of women returnees. Indeed, the land and property issues that arise from displacement can provide the opportunity to address inequities or inefficiencies in land administration and can foster recognition of customary rights.
Crafting policy responses for land issues in situations of internal displacement will not be simple. A variety of strategies have been suggested:
One is a ‘mapping’ exercise to try to provide an overall picture of the scope and nature of customary tenure and its specific impact on the displaced. Though humanitarian emergencies often make such data collection difficult, greater quantitative information on this issue would be helpful during early-agenda setting. Such a mapping would facilitate durable solutions and also provide a tool for predicting potential concerns and conflicts.
The Guiding Principles on Internal Displacement also provide us with some direction. Principle 29 affirms authorities’ duty and responsibility to assist returned or resettled IDPs to recover their property and possessions. In alignment with this, the RSG has suggested that the creation of an administrative body could prove useful if it has three key characteristics: First, the body should have the power to mediate conflicts between claimants; Second, it should have the power of adjudication – subject to appeal in courts; And finally, it should be flexible enough to offer targeted remedies based on community needs. Such a mechanism must be consistent with international human rights norms, transparent and accountable in accordance with the law. Of course, developing laws and policies around land cannot be conducted in isolation from broader law enforcement needs. Complementary measures, including strengthening the judiciary and the police force, should also be undertaken.
Third, the RSG recommends the registration of land entitlements for IDPs and affected communities at large. Where land is abandoned, authorities should attempt to identify the displaced owners. This could form part of an information campaign targeting displaced groups, explaining customary landholder’s rights and any changes coming into effect. Critically, the RSG has cautioned that where customary ownership is collective, individual sales of land should not be recognized. Indeed, registration must respect and accommodate local traditions.
Eventually, the creation of practical tools with concrete directives should be the policy goal. It is worth discussing the possibility of developing practitioner guidelines on customary tenure and IDP returns. Perhaps a practical intermediary step towards this is a checklist that practitioners could use to identify the main issues associated with customary tenure. Previous attempts at such a checklist are laudable but a focus on customary tenure and a recognition of the different roles and responsibilities of humanitarian actors is so far missing. Here, critical tasks could be highlighted: such as identifying customary leaders to consult with, and establishing consensus on customary boundaries.
I’d like to conclude by telling you about a meeting I had in Washington recently. I had the pleasure of speaking with a Member of Parliament from Kitgum in Northern Uganda. She told me that while she welcomed her region’s new-found peace, she feared that “when the IDPs return home there will be another war over land.” It is imperative that we act quickly to ensure that our colleagues on the ground are well-armed with practical directives where land tenure systems are complex. Good policy-oriented research is the first step towards this.
 Walter Kälin, “Protection of and Assistance to Internally Displaced Persons,” Report of the Secretary-General on the Human Rights of Internally Displaced Persons, UN Doc. GA A/61/150, 2006
 Internal Displacement Monitoring Centre and the Norwegian Refugee Council, “Resisting Displacement by Combatants and Developers: Humanitarian Zones in North-West Colombia,” October 2007
 Jean-Philippe Platteau, “The Gradual Erosion of the Social Security Function of Customary Land Tenure Arrangements of Lineage-Based Societies” United Nations University/World Institute for Development Economics Research, Discussion Paper 2002/26, 3.
 Many of these arguments are economic in nature. For example, some tout statutory systems for the owner’s ability to make economic transactions with the land. Collective use and the lack of a concept of ‘ownership’ in some customary systems can make such economic transactions impossible. International Food Policy Institute (IFPI) (Tidiane Ngaido) “Reforming Land Rights in Africa” 2020 Africa Conference Brief, 2004
 Prisca Mbura Kamuni, Johstone Summit Oketch and Chris Huggins, “Land Access and the Return and Resettlement of IDPs and Refugees in Burundi,” From the Ground Up: Land Rights, Conflict and Peace in Sub-Sahara Africa, Eds. Chris Huggins & Jenny Clover, 2005, 234
 Jean-Philippe Platteau, “The Gradual Erosion of the Social Security Function of Customary Land Tenure Arrangements of Lineage-Based Societies” United Nations University/World Institute for Development Economics Research, Discussion Paper 2002/26, 1
 Francis Deng, “Report of the RSG Submitted Pursuant to the Commission on Human Rights Resolution 25,” E/CN.4/2001/5/Add.5, January 2001
 Heidi Gegenbach, “‘I’ll Bury You in the Border!’: Women’s Land Struggles in Post-War Facazisse (Magude District), Mozambique” Journal of Southern African Studies, Vol. 24, No 1, 1998, 34
 Francis Deng, “Reintegration and Development for Internally Displaced Women,” Organization of African Unity Seminar on Enhancing the Participation of Returnees, Refugees and Internally Displaced Women and Children in Reconstruction, Rehabilitation and Peace-Building. 1998
 Walter Kälin, “Natural Disasters and IDP Rights,” FMR Tsunami, 2005, 11
 Walter Kälin, “Natural Disasters and IDP Rights,” FMR Tsunami, 2005, 11
 Walter Kälin, “Southern Sudan Mission Report,” February 2006
 Walter Kälin, “Addendum – Mission to Colombia,” January 2007, para 80