Housing, Land and Property Rights and the Quest for Peace: Guidance for Peace Mediators

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Housing, Land and Property Rights and the Quest for Peace:

Guidance for Peace Mediators



Prepared by Scott Leckie

with support from the US Institute of Peace

Contents

Executive Summary
I. Housing, Land and Property (HLP) Issues and Conflict - Cause, Consequence and Cure
II. Peace Agreements and HLP Issues
III. International HLP Norms
IV. Key HLP Issues Likely to Face Peace Mediators
Displacement and Return
Refugee and IDP Return and HLP Restitution Rights

Secondary Occupation of Refugee and/or IDP Housing, Land or Property

HLP Disputes

The HLP Institutional Framework
Legal and Human Rights HLP Frameworks
The Domestic Legal Framework

Abandonment Laws

Structural HLP-based Discrimination Against Women and Vulnerable Groups
Land Administration and Governance Institutions
Ineffective or Dysfunctional Land Administration Systems

Customary Land Arrangements

The Absence, Destruction or Illegal Tampering of Cadastral and Deeds Registration Records
The Housing Sector

Severe Disruption within the Housing Sector

Housing and Property Damage, Destruction and Repair

Mid-Conflict Housing Privatization
Tenure Security
Homelessness and Landlessness

V. Tactical and Strategic Considerations in Addressing HLP Issues

Minimalist or Maximalist Approaches to HLP Rights?

Building HLP Rights and Expertise into the Peacemaking and Peacebuilding Toolkits

HLP Blueprints Can Assist But Will Require Re-Evaluation in Every Case

HLP Remedy or Reform?

HLP Restitution or Compensation (or both)?

Preventing Future HLP Abuses

Incorporating HLP Issues Into the Peace Agreement and Implementation Frameworks
VI. Conclusions
VII. Useful Reference Materials
VIII. Annex - The Five Core Rights of the International HLP Normative Framework

Executive Summary
1. Housing, land and property (HLP) issues are increasingly recognized for their multi-dimensional impacts upon conflict. HLP issues can be the cause of conflict, a consequence of conflict, and an important means for securing a sustainable peace following conflict. HLP concerns and the human rights and other considerations attached to them are now widely agreed to form vital ingredients in the quest for long-term economic vitality and social stability following conflict. As a result, HLP issues are growing in prominence and are now viewed as key considerations in conflict prevention and resolution initiatives.
2. This Handbook is designed to assist peace mediators to better address the HLP aspects of their efforts, and to facilitate a more consistent and comprehensive embrace of these issues within the eventual terms of negotiated arrangements, including the formal peace agreements. The Handbook combines a description of how conflict and HLP issues intertwine, an overview of the normative frameworks addressing these issues, and a series of concrete suggestions for peace mediators and those aiming to prevent and end conflict designed to assist them to more effectively address HLP issues in their work.

3. The Handbook explores the fundamental HLP issues common to most, if not all, conflicts and how these various issues can manifest in remarkably similar ways even though the nature and context of the conflict concerned may differ sharply. If there is any single lesson learned by peacemakers and peacebuilders with respect to HLP rights over the past several decades, however, it is simply that one-size-fits-all blueprints on how best to address HLP issues following conflict do not, and perhaps never will exist. Understanding this reality, therefore, one of the key conclusions of this Handbook is simply that peace mediators will need to develop a broad enough grasp of the core HLP issues to be able them to respond effectively both in context-specific ways, as well as in a manner fully consistent with the HLP rights of all of those negatively affected by the conflict concerned.

4. The context-specific ways by which HLP challenges face countries emerging from war requires new and innovative, often tailor-made, approaches for every new conflict. At the same time, the HLP issues concerned are clear and commonplace to all conflicts. This Handbook aims to identify these and some of the creative ways, both tactically and strategically, by which peace mediators may wish to deal with them in their efforts.
I. Housing, Land and Property Issues Linked to Conflict: Cause, Consequence and Cure
5. In one way or another, all conflicts involve some form of crisis within the housing, land and property (HLP) sectors. This can relate to struggles over access to land and resources, ‘ethnic cleansing’, mass displacement and forced eviction leading to large-scale movements of refugees and internally displaced persons (IDPs), the destruction and damage of homes and property, the loss of productive lands due to the presence of land mines, unexploded ordinance and conflict-related pollution, ethnic or minority discrimination within the HLP sector, the secondary occupation of refugee or IDP homes by members of opposing groups and the weakening or decimation of State institutions designed to manage and administer HLP rights. HLP abuses are so ubiquitous within conflict contexts, in fact, that it would be difficult to identify any internal or international conflict in recent years where HLP challenges did not figure prominently; both during the conflict itself, as well as in the process of building sustainable peace.

6. The different stages of conflict – pre-conflict, mid-conflict and post-conflict – are each generally associated with different HLP issues. In terms of pre-conflict HLP issues, the traditional two main generators of conflict – greed and grievance – both play themselves out in often dramatic fashion within the HLP sectors. Various types of HLP disputes can be a primary source of internal conflict particularly when simmering HLP grievances remain unresolved, with those perceived as victims unable to access any form of remedial justice or redress. HLP crises, many of which are key causes of the localized instability and violence that can eventually mutate into full-scale conflict - land grabbing and illegal expropriation, forced evictions, mass resettlement and relocation schemes, discrimination against ethnic groups and minorities within the HLP sectors, the growing inability of these groups to access HLP rights, the lack of access to affordable services such as water and electricity, the growth of slums and declining housing conditions, the growing unaffordability of housing and land and the lack of security of tenure - can all contribute to the creation of conditions that are ripe for conflict.
7. As is widely known, during conflict itself, the forced displacement of refugees and IDPs, the destruction of housing resources, arbitrary land confiscations and unlawful occupation of housing and property, the enactment of discriminatory HLP laws and the enforcement of unjust HLP abandonment laws and many others are commonplace.

8. While post-conflict HLP issues and challenges such as refugee and IDP return, HLP restitution initiatives, HLP recovery, reconstruction & re-building, land administration and registration, tenure security, determining inheritance rights for women and others frequently face peace mediators and policy- and law-makers in the territories concerned. HLP issues are now increasingly viewed as central peace facilitators and as crucial attributes of an effective and rights-based post-conflict reconstruction strategy. Most commentators now agree that without appropriately addressing HLP issues, States emerging from conflict may not be able to facilitate refugee and IDP return and restitution processes, economic recovery will be stifled, and the protection of human rights will remain incomplete. These understandings are percolating throughout the international community and within a range of international peacemaking bodies. Within the office of the UN Secretary General, for instance, both his 2004 report on The rule of law and transitional justice in conflict and post-conflict societies1 and his 2007 report on The protection of civilians in armed conflict2, both of which were considered by the Security Council, each recognize the centrality of HLP concerns in the development of the rule of law within such societies and the need for improved international coordinated attention to these issues. The 2007 report suggests that a more consistent, systematic and comprehensive approach to HLP issues be developed, that includes:

(a) Preventive and deterrent actions, such as the strategic deployment of peacekeeping troops to prevent evictions and the illegal appropriation of land and property, and the identification and prosecution by national courts or the International Criminal Court of those criminally responsible for the illegal appropriation or destruction of land and property; (b) Preparatory actions, such as the early identification and registration of land and property abandoned by internally displaced persons and refugees to facilitate restitution or, where necessary, compensation, and the issuance of ownership documentation where this has been lost or destroyed; and (c) Restorative actions, such as the inclusion of the right to return and restitution of housing, land or property in all future peace agreements and all relevant Council resolutions, and the inclusion of housing, land and property issues as an integral part of future peacekeeping and other relevant missions, with provisions for dedicated, expert capacity to address these issues.3

9. And yet, although HLP issues are now increasingly understood at all levels to constitute some of the fundamental causes, effects and remedies for conflict, those facilitating the quest for peace - peace mediators - often find the prospect of addressing the full spectrum of HLP concerns as potentially threatening to the successful conclusion of sensitive, often lengthy and tense negotiating sessions seeking viable recipes for peace. For many mediators, the inclusion of HLP rights into what are already perceived to be their overflowing array of responsibilities, may seem overly daunting and possibly obstructive of eventual agreement. There may be feelings that addressing HLP issues may attract unwelcome international attention to private negotiation processes, or conversely that because there is effectively no lead agency managing or monitoring these issues under UN auspices, they will invariably fall through the cracks and not be considered important priorities in peacebuilding.4 Because HLP rights violators themselves are often the very people negotiating peace agreements, there can be an additional walls of resistance by the parties that may need to be slowly broken down before these issues can be addressed. Local political players often have considerable vested interests in housing, land or property unlawfully acquired during the conflict in question, and as a result peacemakers may find themselves in an uphill battle to achieve recognition of HLP issues during these undertakings and may consequently choose paths of lesser resistance.

10. Whatever balance of power that may exist at the time of negotiations can also determine how and to what extent HLP rights are eventually formulated within final agreements. Questions of timing and sequencing within the negotiation process, and what are perceived to be issues that are too long-term in nature to warrant the immediate attention of peace mediators more familiar with questions of ceasefires, land mine clearance and outlining future forms of governance, can also be contributing factors in determining whether HLP issues are considered central or peripheral issues during peace talks. The real or perceived lack of large-scale donor support for helping to resolve HLP disputes and other challenges may also assist in keeping these issues off the negotiating table. Added to this, peace mediators may simply view HLP issues as too complex, too technical, and too controversial to justify their inclusion within peace processes or peace agreements. And finally, these issues are still seen by some peacemakers as effectively discretionary and political in nature, and ultimately as bargaining chips that can be negotiated away if need be to allow compromises to take shape.

11. Despite these perceived disincentives, however, there is growing awareness throughout the international peacebuilding community that although often difficult and time-consuming, the price to be paid of not addressing HLP issues and seeking their resolution, can prove a far too heavy one. If the rights of refugees or internally displaced persons to return to their original homes after conflict are not fully recognized, the residual impact of the conflict concerned may never entirely dissipate, with unresolved HLP rights and claims forming the basis for renewed conflict. On the other hand, when double-standards demand that some refugee groups be entitled to return home, while other refugee groups (perhaps form a different ethnic or religious group with less political influence) are not accorded these same rights, this may also threaten the prospects of long-term peace. When governments sanction the allocation of land to 'war heroes' or 'ethnic cleansers' and this is not addressed during peace initiatives, while millions of rural and urban poor citizens continue to exist without land or housing rights, this does little to build the basis for sustainable peace or prosperity. If long-term, pre-conflict grievances relating to HLP abuses are not addressed, this too can lead to growing tensions and the outbreak of new conflict. When members of a certain ethnic group are encouraged to enter the area of rival ethnic groups with the intention of confiscating land and resources, once again, the path to conflict has been laid. When UN or other inter-governmental peace operations come to a country to build peace and all but ignore the HLP crises that invariably exist in any post-conflict country, peacebuilding is likely to only ever be partially successful.

12. HLP issues are an important and challenging subject of many peace negotiation processes of the recent past, and are set to be perhaps even more prominent in coming years as the nature of the conflicts requiring resolution - Palestine/Israel, Darfur, Iraq, Burma and others - all place HLP issues at the direct core of both the causes and results of these conflicts, as well as their eventual just and sustainable resolution. Peace negotiators need to know how to most effectively address these issues. They require thorough analyses of these generators of conflict and options from which to shape an appropriate program of practical and concrete responses. They need to know what they are up against and how to best promote agreement on often very sensitive HLP issues. To do so, they can begin by building on what has already been achieved in this regard, and seek guidance from past peace agreements as to how HLP rights have been enshrined.

II. Peace Agreements and HLP Issues
13. A range of contemporary peace agreements – the Dayton Accords (Bosnia-Herzegovina) 5, the Arusha Accords (Burundi), and agreements concerning Guatemala6, El Salvador, Kosovo, Liberia, Mozambique7, Sierra Leone, Sudan, Tajikistan8 and others - explicitly address HLP issues and, increasingly HLP rights.(See Box 1) Conversely, agreements that in hindsight definitely should have included specific HLP provisions, but did not - in particular the 1991 Cambodian peace settlement - have been criticized for this serious oversight.9
14. Although not all recent peace agreements include explicit reference housing, land and property issues or treat these issues in a comprehensive manner, the clear trend over time leans toward the inclusion of these issues. Several HLP issues appear with relative frequency within peace agreements. These include HLP issues relating to refugee and IDP return, HLP restitution rights and the mechanisms often required to administer and process restitution claims, the reform of pertinent HLP legislation, land reform measures, land tenure issues, the rights of women to equal treatment with respect to HLP rights, customary law arrangements and HLP issues questions of compensation. Six peace agreements stand out in terms of how they address HLP rights considerations.


Box 1 - HLP Concerns within selected peace agreements




Refugee and IDP Return/Repatriation


HLP Restitution Rights

Land Reform Measures

Secondary Occupation of HLP

Legislative Repeal and Reform

Specialized Bodies on HLP Issues

Cambodia (1991)


















El Salvador (1992)














Mozambique (1992)

















Liberia (1993)

















Rwanda (1993)















Bosnia-Herzegovina (1995)














Guatemala (1995)














Croatia (1995)

















Tajikistan (1997)
















Sierra Leone (1999)


















Burundi (2000)











Liberia (2003)

















Sudan (2004)














Great Lakes Protocol (2007)











15. Though often overlooked, the 1992 El Salvador peace agreement is exceptionally detailed in addressing a wide range of HLP concerns which were seen by the parties as fundamental causes of the grievances that led to the emergence of the conflict years earlier. (See box 2). This unique agreement sought to address issues which are often excluded from such agreements such as land reform measures, the necessity of new land legislation, land tenure concerns and the inventory of indigenous land allocations. Three years later, the 1995 Guatemala peace accords also required the Government authorities to "adopt or promote measures to regularize the legal situation with regard to the communal possession of lands by communities which do not have the title deeds to those lands, including measures to award title to municipal or national lands with a clear communal tradition. To that end, an inventory of the land tenure situation shall be drawn up in each municipality".


16. Firstly, as has been widely discussed for more than a decade, the 1995 Dayton Accord ending the war in Bosnia-Herzegovina remains one of the most successful and surely the most widely studied peace agreement enshrining the rights of refugees to return to their original homes.10 Although the principles contained in Annex 7 of the Accords clearly fell short of comprehensive implementation, the various bodies and plans put into effect after1995 had the cumulative effect of facilitating return home for hundreds of thousands for refugees and IDPs. Building on the sentiments expressed in Dayton, the 2000 Arusha Peace and Reconciliation Agreement for Burundi is noteworthy both for its comparatively comprehensive inclusions of various HLP questions, as well as for its strong expressions of the right of all refugees to have their property restored to them and to be able to return to their homes. Article 8 of the Agreement specifically addresses issues relating to land and other property, in considerable detail, and in many important ways goes considerably further than Dayton in addressing a broader spectrum of HLP issues.11


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