Restitution as a Key Response to Land and Property Rights Violations: Legal Framework and Policies International Workshop on Land Restitution Set in the Context of Peace Transition and Construction Cartagena, Colombia July 2015

Land and Property Rights Violations  Land as a resource is often at the root of conflict  May have cultural, political, strategic significance  Conflict can be an opportunity for land grabbing, elite capture  When people flee a violent conflict, they cannot take their land with them – land is an immovable asset  Conflict often devastates entire communities – if tenure security is weak and informal, difficult to establish rights through oral testimony, non-documentary evidence

Bodies of Law  International law – agreements, conventions  National laws  Religious law/customary law – may be applicable by statue  Insurgency norms – insurgent movements may have their own ‘laws’ or rules for those areas under their control

National laws  Important to remember that national legal frameworks have diverse origins. Laws may overlap and even be contradictory.  If tenure security is weak, may have many overlapping claims to same territory, with customary/indigenous rights overlapping with private claims, use rights, etc.

International law  International standards may offer a source of leverage to victims/IDPs in claiming rights over land.  Voluntary Guidelines on Responsible Governance of Tenure:  When conflicts arise, States and other parties should strive to respect and protect existing legitimate tenure rights and guarantee that these are not extinguished by other parties.  Violations of tenure rights should be documented and, where appropriate, subsequently remedied. Official records of tenure rights should be protected against destruction and theft…  …where such records do not exist, the existing tenure rights should be documented as best as possible in a gender-sensitive manner, including through oral histories and testimonies.  Legitimate tenure rights of refugees and displaced persons should be recognized, respected and protected.

Pinheiro principle  Right of return and of restitution to those who have suffered displacement due to conflict…  “All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore as determined by an independent, impartial tribunal.”

Restitution  In Eastern Europe, to respond to land nationalizations during the communist period.  In South Africa, to restore land to communities displaced by apartheid.  In Colombia, to restore land to individuals and communities displaced by the conflict.

Some principles for restitution policies  Develop policies and laws that are realistic in terms of timeline and resources and government’s capacity to implement  Policies and laws that are realistic about the ability to change long- standing behavior  Should be understandable to the general population and flexible enough to respond to different victim groups – indigenous, women, orphans, ethnic groups  Consultation is important  Recognize that these laws and policies may create new conflicts, for instance with new ‘owners/occupiers’  Should strive to support reconciliation and peace building

Issues to be resolved in a restitution policy  Objective  Eligibility – who, when (cut-off date)  Evidence – documentary, non-documentary, institutional (cadastre records)  Accessibility – physical location of offices close to IDP community; but also accessible in terms of understanding, literacy of IDP/beneficiary community  Option for compensation – who decides?  How to deal with good faith third parties?

Implementation Issues to be considered  Baseline studies and available data  Institutional arrangements and capacity  Budgeting and funding  Success criteria and evaluation methodology  Communications, public awareness  Grievance redress mechanisms

Bosnia example: Legal Framework  UN SC and GA resolutions on return of displaced  General Framework Agreement for Peace (Dayton Peace Agreement) – Annex 7 - right to return, restitution and compensation  Constitution – right to return, restitution and compensation  European Convention on Human rights via Constitution  Bosnian property legislation

Bosnia example: Restitution Laws  Reversing ‘abandoned’ property regimes  Blanket coverage of all land transfers during conflict period regardless of circumstance of departure of owner  Individual rights – owner could chose physical restitution or compensation  Administrative rather than judicial process  Burden of proof shifted to current occupants  Set timeline (30 days) to issue decision  Appeal to administrative body, then court, but appeals do not stay implementation  Decision included right of current occupant to alternative housing  Decision included timeline for current occupant to leave housing, depending on economic/social circumstances (15-90 days)  Forcible evictions if occupant does not vacate property

Bosnia example: Compensation  Right to compensation in lieu of physical restitution  Compensation fund never established  No clear procedures for seeking compensation  International donors interested in funding return of displaced not compensation  In practice, persons could compensate themselves through sale of land, but worked only if land in desirable area