PROPERTY SEIZURES IN THE 20TH AND 21ST CENTURY

Property confiscations is not simply a phenomenon innate to World War II or post World War II totalitarian regimes, but unfortunately, as the following summary1 will show, an obnoxious reality still today. The international community’s ability to resolve the devastating results of such seizures now and back then is practically de facto and de jure non-existent.

THE BALKANS

In the Balkan wars forced evictions and occupations were certainly not uncommon. All ethnic groups were affected by these waves of terror. The international community though, did try to ease the effects of this practice in Bosnia–Herzegovina. In contrast however, the Croatian authorities were not too keen to follow this example and preferred to evict Croatian Serbs from Eastern Slavonia, who were deemed to be illegally occupying houses. Concurrently, they blocked all attempts made by this group to recover their original homes elsewhere in Croatia.

As one would expect, this led to hundreds of lawsuits before Croatian courts on behalf of displaced persons. Test cases were even lodged with the European Court of Human Rights.

Unfortunately, the Court decided to declare these cases, similar to War II and post War II confiscations cases, inadmissible, due to the fact that the alleged violations occurred before Croatia ratified the European Convention on Human Rights (ECHR) in 1997.

However, the Court did incline itself to put across its concern at the lack of any effective domestic remedies for the applicants. This at least helped to put pressure on the Croatian authorities. Had the international community exerted more pressure on the Croatian authorities surely more might have been achieved.

It is ironic though that the international community was prepared to impose laws and practices that are conform with international human rights standards in Bosnia-Herzegovina and not in Croatia.

The situation in Kosovo seems somewhat different. Throughout the 1990ies, discrimination against the Albanian majority was bluntly manifested in the form of irregular tenancy arrangements, forced evictions, and restriction on property transactions.

The Armed conflict in Kosovo (1998 –1999) led to the destruction of over thousands of houses. When the war was over many abandoned homes (mainly Serb), were occupied by the returning Albanian refugees. Land, housing and property rights became an extremely volatile issue in the context of Kosovo’s ethnically divided society.

The international community, which assumed direct responsibility over province after NATO’s intervention tried to pursue a restitution and minority return policy. However, this was not very successful. To a large extent Kosovo’s non-Albanian ethnic minority has fled the area.

Courts barely function and there is no effective rule of law. In view of this anarchic situation the UN administration decided to remove property claims from the jurisdiction of the ordinary courts and create a Housing Property Directorate and Housing Property Claims Commission.

Unfortunately, from the beginning these institutions were unable to deal satisfactorily with the heavy case load. Finally the UN determined that it was better to verify all claims individually and to execute eviction orders. The whole process therefore had to be overseen by international staff so each statement and document had to be translated. It is quite obvious that this procedure will take time and money.

AFGHANISTAN AND PAKISTAN

The abrupt collapse of the Taliban regime 2001 in Afghanistan, and the immediate return of nearly two million refugees seemed to be a big achievement in the beginning. However, many returnees had come back on inadequate information regarding especially security and economic conditions.

After years in exile former property owners not only faced disputes over inheritance rights but also quarrels in cases where land had been cared for by others, or sold, or otherwise transacted, while the original owner was away.

The lack of a properly functioning judicial system in much of the country is a heavy burden on claimants, who seek justice.

The situation is further complicated due to the fact that the issue of land and property rights and land reform have been extremely controversial for decades in Afghanistan. Land ownership in Afghanistan is totally inequitable and a significant proportion of the rural population is landless. A feudal-like system prevailed under the monarchy and its collapse removed the few privileges that this group once enjoyed. The unsuccessful land reform in 1978 prompted a rebellion against the communist regime.

In 2002 the new administration stopped the distribution of Government-owned land. The Government realised that the powerful regional warlords would simply grab the land for themselves. However, disputes over land distributed under previous regimes still remain a problem.

Over the last 30 years, a piece of private land could have been compulsorily purchased, expropriated; granted to another individual through a statutory decree; privately transacted between different individuals, using official or customary documents; forcibly seized or abandoned by its owner and then illegally occupied by another party; or sold, leased, exchanged, gifted, inherited, or otherwise transferred on to others.

Due to the lack of a complete set of official cadastral records and a multiplicity of ownership documents, it is near to impossible to determine who the legitimate owner is today.

GEORGIA

In the 90ties Georgia experienced two armed conflicts with secessionist territories. Approximately 50,000 people were displaced by the conflict in South Ossetia, while about 280,000 ethnic, or part-ethnic, Georgians fled Abkhazia. The mass expulsion of ethnic Georgians has been condemned as an act of ethnic cleansing.

Cease-fires ended both clashes. However, there has been no peace agreement. The two secessionist regions remain officially part of Georgia and the governing authorities that exercise de facto control, do not enjoy international recognition. The official position of the Georgian authorities is that the return of all displaced persons to their places of origin is the only acceptable solution.

In the mid-1990s some refugees returned, but lamentably many of the returnees were attacked in Abkhazia and forced to flee once again.

Many exiles have had to face the fact that their homes, land and other property has been or is occupied by other people. Much of this was formally socially-owned property and some of it has now been re-allocated due to the privatisation policies pursued by the authorities during the 1990s. International pressure has forced the authorities to at least pay lip-service to the concept of property restitution.

In 1994 the Georgian, Abkhaz and Russian authorities signed a framework agreement, drawn up with UNHCR and modelled on the Dayton Peace Accords, which recognised the right of displaced people to return to their place of origin and recover their property. A draft law on property restitution has also been prepared for South Ossetia, but it has not yet been adopted.

Even if an effective restitution policy was developed, it is rather doubtful whether the displaced will be prepared to return. Abductions, ambushes, the use of landmines and robberies are still a part of everyday life. Economic conditions also remain harsh and potential donors have been reluctant to raise funds mainly due to concerns about corruption and the lack of a rule of law.

Around half of the displaced in Georgia still live in collective centres. According to the UN, about 70 per cent of the collective centres in Georgia do not meet minimum living standards, with inadequate access to clean water.

AZERBAIJAN

The conflict between Armenia and Azerbaijan (early 1990s) caused hundreds of thousands of people to flee. Although there has been a ceasefire in the region since 1994, the peace talks have not been very successful in finding a permanent solution. The Nagorno-Karabakh enclave and six surrounding provinces in Azerbaijan are still occupied by Armenian forces.

The Government of Azerbaijan has been reluctant to allow the displaced from Nagorno-Karabakh area to integrate, as this might be seen as accepting of the loss of the territory. Many public buildings are used to accommodate the latter.

Despite the legal protection displaced people theoretically enjoy from a Presidential Decree the large-scale privatisation of public assets that occurred in the 1990s has led to attempts to evict the displaced from former public buildings. The courts often appear unable or unwilling to protect displaced people’s rights.

The latter were also largely excluded from the privatisation programme carried out in the 1990s, as a result of which over 80 per cent of settled Azeris now own their own homes. Those who have been able to buy property face problems registering it in their own names as this would effectively mean that they had to abandon their official status as displaced person.

COLUMBIA

Approximately three million people have been forcibly displaced in the conflict in Colombia between Government forces, left-wing guerrillas and right-wing paramilitaries. Colombia’s various protagonists have depopulated certain areas to control strategic zones.

There was a large flow in the number of displaced persons following the collapse of the armistice in 2001. The military and police presence in the countryside has since increased and the overall security situation appears to have improved in urban areas.

In 1997 Colombia passed an important Law, Law No.387, which ranks amongst the most progressive laws with respect to displaced rights, in the world. A subsequent Decree 25/64 was introduced in 2001, which should have led to this law being put into effect. A case was also taken to the Supreme Court, which resulted in a judgment (T025), requiring the authorities to implement a series of measures to protect displaced people’s rights.

However, until today the authorities have still not complied with their own laws. Some amendments have been introduced that have weakened Law 387 and some of the rights that it gives are hedged by qualifications, which lessen their impact. However, the main problems, like so often, appear to be a lack of resources and political will to implement the law.

The Government’s official policy is to encourage people to return to their original homes, but OHCHR has questioned whether such returns are always completely voluntary and undertaken in conditions of dignity and security.

The Colombian conflict has been used to conceal a massive ‘counter-land reform’ in which the downright inequalities of land ownership have worsened. In October 2004 a proposal was introduced in the Congress that would have legalised many of the land seizures that have been carried out over recent years. Although this was defeated, it is likely that a similar legislative proposal will re-emerge. The paramilitaries were largely created by groups of landowners to protect them from the guerrillas and Colombia’s Congress is dominated by large landowners.

Pursuing a policy of land, housing and property restitution under these conditions is therefore likely to be nearly impossible.

UGANDA

In 2001, the Government of Uganda started drafting a National Policy on Internal Displacement. Much of the new policy is based on the UN Guiding Principles on Internal Displacement. The final policy, which was adopted by the Cabinet on 25 August 2004, can become an important tool in advocating for increased protection of displaced persons’ rights. However, no implementation plan has yet been made available.

Traditionally, the people of Northern Uganda live in small villages or homesteads of a handful of houses. Nearly all cultivated land is attributed to individuals under customary tenure. People own land simply because they have always lived on it and because they have always been regarded by everyone else as the ‘owners’ of their land. They have no official papers proving that they own the land and giving them rights over it.

Dispute resolution in customary tenure is based more on mediation than upon passing judgment in favour of one party or another. Where a dispute arises within a family, the person who has been chosen as the family head will resolve the dispute. Where a dispute is between families, usually between neighbours, then the Rwot Kweri (village chief) will adjudicate or mediate.

In 1998 a Land Act was passed, which recognised, for the first time, customary tenure alongside other forms of land tenure (freehold, leasehold and Mailo), however the translation of customary rules into modern law has not been clear-cut due to their complexity and the myths that surround them. Customary rules have often never been written down and they are constantly changing and adapting to new circumstances. The State legal system and the customary system are also based on very different working cultures and the creation of a new set of ‘modern’ institutions to administer customary law may significantly weaken the latter.

The 1998 Act provides a new system for dealing with land disputes that bypasses not only the normal courts of law, but also the traditional customary dispute resolution mechanisms. The Act also provides for the establishment of Certificates of Customary Ownership that can be used as proof of ownership and may eventually be converted into freehold titles. The Act in theory also provides women with more rights over the ´common property´ of a household.

However, no Certificates of Customary Ownership have yet been issued. Observers fear that the conversion of customary ownership into modern titles could have a negative impact on vulnerable groups, such as widows and orphans, who will lose their rights under a more ‘individualistic’ system.

Together with this potential erosion of traditional land rights, Northern Uganda’s displacement crisis has been accompanied by land seizures and occupations, which may prevent some displaced persons from ever returning home. Many people have lost the use of their land because it has been occupied by defence forces or designated for the construction of displaced persons’ camps. Others are simply too scared to return home. Some land has also reportedly been stolen for personal gain by senior officers of the government, taking advantage of the lack of a rule of law. Displaced persons with only customary tenure rights, and no documents, are easily exposed to such land-grabs.

SUDAN

More than four million people have been displaced from their homes in Sudan over the past twenty years. The civil war originally focused upon the conflict between the Government in the north and the Sudan Peoples Liberation Army in the south. The situation has been aggravated by the recent outbreak of fighting in the western region of Darfur. Approximately half of all of Sudan’s displaced persons are living in Khartoum, in its camps and squatter areas. Conditions in the camps are sordid, and in many instances, unfit for human habitation.

In an effort to deal with the problems of overcrowding, the Government of Sudan has been demolishing displaced persons’ homes, allegedly to convert the camps into more stable residential communities. Seventy-seven per cent of those relocated have not received plots, including vulnerable groups such as female-headed households and displaced persons’ without personal documentation.

Displaced persons’ arriving in Khartoum since 1997 have been excluded from the plot allocation process. The system for purchasing plots of land is slow, complex and expensive. Furthermore, there is no unified, single legal framework governing property ownership that is accepted by all parties as being legitimate for the whole country.

SRI LANKA

For over 20 years, the Government of Sri Lanka has been engaged in a conflict with the Liberation Tigers of Tamil Eelam, an organization fighting for a separate ethnic Tamil state in the north and east of the country. A cease-fire was announced by both sides in February 2002, but a comprehensive peace agreement still seems not in reach. The conflict has claimed more than 64,000 lives and the two sides have reached a stalemate that leaves the Tamil in de facto control of a significant portion of the contested territory.

The conflict has forced the displacement of members of all of Sri Lanka’s main ethnic groups: Tamils, Muslims and Sinhalese people. Currently, more than 350,000 people are displaced because of the conflict. Some 369,000 people, out of a total internally displaced population of 730,000, have resettled or relocated since the ceasefire in early 2002. The situation has been further aggravated by the tsunami disaster which hit Sri Lanka in December 2004 and displaced over 500,000 people.

Returning displaced persons face a variety of problems, including: safety threats, property dispossession, landlessness and a lack of basic infrastructure and basic services. Displaced women, are among the most vulnerable. They face inequitable policies for distributing assistance as well as obstacles in gaining legal title to land and property.

The above extraction from the Norwegian Refugee Council’s report shows that the international community not only is incapable of stopping forced evictions and illegal property seizures from happening, it also has time and again failed to implement a judicial mechanism, which is competent to resolve these issues once the conflict is over.

This unacceptable status quo will continue as long as international institutions and national governments fail to understand that they are idly playing with the existence and livelihood of millions of people.

It cannot be that successor governments who are unjustly enriched by the former takings are able to assert that they are not responsible for the injustices, nor does it seem appropriate for a modern international human rights court such as the European Court of Human Rights to contend that it lacks jurisdiction because at the time the illegal expropriations took place the countries affected had not signed the European Convention. It is only too apparent that outlaw or totalitarian regimes are not in a hurry to sign Human Rights Conventions.

That is why the international community has duty to mitigate the harshness of these violations and implement judicial and legal mechanisms so that these crimes can be prosecuted and property questions be resolved once the hostilities have ended.

Alexandra Mareschi

October 2005