From National Responsibility to Response – Part II: IDPs’ Housing, Land and Property Rights

Editor’s Note: This is the second part of a two piece series on internal displacement that originally appeared online in TerraNullius. The first part is available here.
 
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.

HLP Law and Policy Frameworks

One of the most encouraging signs of governments taking seriously their responsibility to address internal displacement has been the development, adoption and implementation in all regions of the world of specific laws and policies that respect the rights of IDPs. Some of the countries surveyed have developed laws, decrees, orders, and policies that protect IDPs’ HLP rights, but these measures are also not without their limits and challenges. A few examples are presented below.

In Colombia, while Law 387 on Internal Displacement (1997) stipulates the right of IDPs to compensation and restitution (Article 10), the government has been hard-pressed to establish measures enabling them to realize that right (see further, below). In Colombia, the constitutional complaint process – the acción de tutela petition procedure – has made the government accountable to IDPs and has influenced government policy toward IDPs, including the policy of allocation of government assistance such as housing subsidies.

In Georgia, the legal framework for IDP protection includes a property restitution law for IDPs from South Ossetia, adopted in 2007, which provided for the establishment of a Commission on Restitution and Compensation; however, this body never became operational and the status of the law is unclear following the August 2008 conflict. The State Strategy on IDPs, also adopted in 2007, protects IDPs against “arbitrary/illegitimate eviction” and sets out a large-scale program for improving the living conditions of IDPs in their place of displacement, all the while reaffirming their right to property restitution.[1]

Displaced families whose homes were destroyed or damaged during the August 2008 received $15,000 from the government to rebuild their homes, although many IDPs have held off reconstruction efforts due to concerns about insecurity. The RSG on IDPs recommended in 2009 the established of a comprehensive mechanism for resolving HLP claims for both the South Ossetia and Abkhazia conflicts. In addition, in 2010, Georgia adopted procedures for vacating and reallocating IDP housing, which, among other things, addresses those cases in which removal of IDPs from a collective center is ordered by the government and may require an eviction, and spells out safeguards for guaranteeing the right of IDPs.[2]

Iraq’s 2005 Constitution protects Iraqis against forced displacement (Article 44(2)). Through its Property Claims Commission, formerly the Commission on the Resolution of Real Property Disputes established by Order No. 2 (2006), Iraq has sought to recover property seized between 1968 and 2003, although significant gaps and challenges remain. For those internally displaced between 2006 and 2008, Prime Ministerial Order 101 (2008) sets out a framework for providing property restitution for registered IDPs with a view to encouraging and facilitating their return to Baghdad governorate, the origin of the majority of post-2006 IDPs and the location of the majority of post-2006 returnees. However, there have been few claims; many IDPs lack the necessary documentation, do not trust government institutions, fear retribution or cannot afford the requisite costs.[3]

In Afghanistan, where national authorities have not yet defined “internally displaced persons,” property and land rights of IDPs are either specifically addressed or generally implicated in substantive and procedural provisions found in a series of executive acts that have been issued since 2001, including the most IDP-specific of them, Presidential Decree No. 104 on Land Distribution for Settlement to Eligible Returnees and Internally Displaced Persons (2005). This decree sets forth a basic framework for distributing government land to both IDPs and returnees as a means of addressing their housing needs. However, IDPs seeking access to land are required to provide their national identity cards (tazkera) and documentation proving their internal displacement status—documentation which they may have lost. Moreover, the decree does not recognize other fundamental rights or needs of the internally displaced; it is valid only in areas of origin; and its implementation has been marred by inefficiency and corruption within the very weak ministry that is tasked with its implementation.

Although the 2006 peace agreement in Nepal  included a commitment to return occupied land and property and to allow for the return of displaced persons, four years after the peace agreement (and three years after the adoption of a national policy), between 50,000 and 70,000 people remained displaced.  Nearly half of the returnees interviewed by the Nepal IDP Working Group reported serious land, housing and property problems.  Of the more than 10,000 claims for compensation for property filed in 2007 only 2,000 families had received support to reconstruct or repair their houses by 2009.  It is widely reported that IDPs with non-Maoist political affiliations have been the least likely to recover land and property.

In Turkey, the government has yet to take full responsibility for displacement caused by its security forces against a largely Kurdish population. In its Law 5233 on Compensation of Damages That Occurred Due to Terror and the Fight against Terror (27 July 2004) and its Return to Village and Rehabilitation Program, displacement is defined in terms of “terrorism” or the “fight” against it. This law does not specifically focus on internal displacement, but it does benefit IDPs among other affected populations. Law 5233 and its related amendments and regulations compensate for “material damages suffered by persons due to terrorist acts or activities undertaken during the fight against terror” between 1987 and 2004. Compensation is provided for three types of damage: loss of property; physical injuries, disabilities, medical treatment, death and funerals; and inability to access property due to measures taken during “the fight against terrorism.”

According to the law, compensation is to be determined by damage assessment commissions (DACs) at the provincial level, with funding provided by the Ministry of the Interior. From 2004 to August 2009, the commissions received just over 360,000 applications. Of those, over 190,000 claims were decided: 120,000 were approved and the claimants awarded compensation; the remaining 70,000 were denied. Around $1.4 billion in compensation was awarded, of which close to $1.1 billion has been paid.[4] The existing legal and policy framework do not adequately address the obstacles to return, including the village guard system, insecurity and the presence of landmines and unexploded ordnance.

In Kenya, the government’s promotion of return included a National Humanitarian Emergency Fund for Mitigation and Resettlement of Victims of 2007 Post-Election Violence which was to meet the full costs of resettlement of IDPs, including reconstruction of basic housing, replacement of household effects and rehabilitation of infrastructure. But in practice, the government has been criticized for promoting return before conditions were safe. The government has also tended to focus on IDPs who own land and to attach durable solutions to land; there is no clear strategy for dealing with landless IDPs, such as squatters and non-farmers.

Awareness among IDPs as to their housing, land, and property rights under existing law – where there is law addressing those rights – is inadequate in many instances. For example, in Turkey, about half of IDPs surveyed in 2006 were not aware of their entitlements under the Return to Village and Rehabilitation Program or the Law on Compensation. [5]

National Human Rights Institutions and Constitutional Courts

In some cases, national human rights institutions (NHRIs) and constitutional courts have a critically important role to play in supporting as well as in holding governments accountable to guarantee the rights of IDPs. In a number of the countries our study examined, the work of NHRIs on internal displacement has included a focus on HLP issues.

In Georgia, for example, the Public Defender has been actively monitoring and reporting on the country-wide housing program begun in 2009 and has raised concerns about evictions of IDPs and the quality of housing in relocation sites. The Public Defender’s office also has undertaken a study on the conditions of the hidden majority of IDPs living in private accommodation rather than in collective centers.

The Afghanistan Independent Human Rights Commission has reported on and raised concerns about the large number of IDPs living in urban slums and informal settlements and about the fact that many IDPs were unable to return to their homes due to disputes over land and property.

Constitutional courts have in some instances played a role in strengthening the national legal framework for protecting the property rights of IDPs. Notably, Colombia’s activist Constitutional Court, in its Decision T-821 in October 2007, ordered the government to ensure respect for IDPs’ right to reparation and property restitution. In January 2009, the Constitutional Court ordered the government to comprehensively address land rights issues and to establish mechanisms to prevent future violations.

Subsequently, the government has sought to ensure these rights by adopting in 2011 the historic and ambitious Law 1448, known as the Victims and Land Restitution Law. In this law, government acknowledges for the first time ever the existence of an internal armed conflict in Colombia, and recognizes as “victims” those individuals or communities whose rights were violated under international humanitarian law or international human rights law. The law regulates reparations for all victims of the armed conflict since 1985 – numbering over 5 million – including through land restitution or compensation for IDPs which is to occur over the next decade.

However, restitution of land does not guarantee returnees’ security and may even endanger people given that land disputes and seizures remain a driving force of displacement. Aiming to prevent further victimization of returnees as a result of insecurity and violence, the government established a new security body, the Integrated Center of Intelligence for Land Restitution (Centro Integrado de Inteligencia para la Restitución de Tierras, also known as CI2-RT) within the Ministry of Defense. Additional participants include the Office of the Vice President, the Ministry of Justice and Interior, the Department of Administrative Security (DAS), Social Action (Acción Social), Incoder, and organizations representing victims of violence. Time will tell how successful the implementation of this ambitious law will be.

In Georgia, the Constitutional Court has also played an important role by recognizing the rights of IDPs to purchase property without losing their IDP status or in any way jeopardizing their right to return.

Conclusion

Securing HLP rights for IDPs is, of course, a key component of finding durable solutions to displacement. The study found that land and property disputes are almost always sources or manifestations of lingering conflict and often an obstacle to IDPs’ free exercise of their right to return.  While some governments have made efforts to provide mechanisms for property restitution or compensation, those mechanisms have rarely been adequate to deal—at least in a timely manner—with the scale and complexity of the problem. National human rights institutions and constitutional courts can play a key role in holding governments accountable for HLP and other rights and freedoms of IDPs.

[1] Government of Georgia, State Strategy for Internally Displaced Persons–Persecuted Persons, Chapter V.

[2] The Standard Operating Procedures for Vacation and Reallocation of IDPs for Durable Housing Solutions (2010) (www.mra.gov.ge)

[3] IDMC, Iraq: Little New Displacement but around 2.8 Million Iraqis Remain Internally Displaced: A Profile of the Internal Displacement Situation, 4 March, 2010, p. 240 (www.internal-displacement.org)

[4] IDMC, Turkey: Need for Continued Improvement in Response to Protracted Displacement: A Profile of the Internal Displacement Situation, 26 October 2009, p. 12, citing correspondence with the government of Turkey, 17 September 2009 (www.internal-displacement.org)

[5] Hacettepe University, Institute of Population Studies, “Findings of the Turkey Migration and Internally Displaced Population Survey,” press release, 6 December 2006, cited in IDMC, Turkey: Need for Continued Improvement in Response to Protracted Displacement: A Profile of the Internal Displacement Situation, 26 October 2009, p. 11 (www.internal-displacement.org)