Principled Realism and Restitution in Syria
Scott Leckie, Director and Founder of Displacement Solutions
11 December 2017
Thank you to the organisers for hosting this important and catering for me on Skype as we gather in a room that I am sure most of us have visited on many important HLP occasions.
Before commencing, though, please let me pay my respects to the Boonwurrung People of the Kulin Nation, the past and present owners of the land from which I speak, and whose land it shall eternally be, their sovereignty over which has never been ceded.
As even sparsely populated, wealthy and democratic Australia shows, restitution can take a very long time. Even with High Court decisions ending the absurd notion of terra nullius, Native Title Acts, Government Apologies, regular free and fair elections and so many other efforts, we have still not come anywhere near real restitution for Aboriginals in this country, and it's important to remember this in our discussions about contemporary Syria; If what is just about the world's richest nation can't make it happen, how can the displaced millions from Syria realistically expect anything from the promise that restitution may hold?
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And so as you sit under the gaze of 5000m of majestic mountain - visible or not today - across Europe's largest lake, we sit and ponder the question of restitution in Syria. Syria where the 'worst of times' have been all too present for far too long, manifesting in almost too many ways to calculate; and then the Syria that could be, a future Syria of 'the best of times' where conflict has ceased, where justice begins to emerge and where a principled and realistic approach to restitution can be put in place; whereby everyone with restitution claims has somewhere reliable, independent and powerful to submit them to, whereby restitution is combined with deeper social justice concerns,where reconstruction is based on the needs of the people before the greed of soul-less investors, and a future Syria where the societal foundations for true peace, true equality and true widespread prosperity can be built.
We have thus the sorrow of the present and our hopes for a better future, and so it is perhaps every time we have mused about the prospects of restitution wherever it was that we have all collectively worked - Bosnia, Kosovo, Timor Leste, South Sudan, Bhutan, Palestine, Iraq, Myanmar and so many others.
So if we take an honest look at the global restitution project of the past quarter century, what might be some of the key lessons we can derive from these experiences so that they are not lost in any effort to build restitution processes into Syria's future political and legal fabric. I'd like to offer five core restitutions messages today:
First, International Law Continues to be a Strong Source of Restitution Rights and We Need to Stand Up Forcefully For These Norms
As we all know, international law approaches restitution generally through the lens of infringements of law due to what are defined as wrongful acts or omissions attributable to States through the application of the law of State responsibility. The International Law Commission in their 2001 Articles on State Responsibility outlines the legal meaning of the term ‘internationally wrongful acts’, as well as noting n Article 34 that:
A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: (a) is not materially impossible; (b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.
International humanitarian and criminal law addresses grave breaches of residential rights that can give rise to measures of restitution, as does the 1998 UN Guiding Principles on Internal Displacement which explicitly address the question of restitution in Principles 28 and 29. The Guiding Principles helped to inspire two vital standards on restitution, both of which were approved by the UN in 2005. The UN General Assembly adopted and proclaimed the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, which in para. 19, notes that:
Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.
These points were further refined in the United Nations Principles on Housing and Property Restitution (The Pinheiro Principles), also approved by the UN in 2005, and which aim for the restoration of possession of one’s original home as the preferred remedy to forced displacement. The Pinheiro Principles expand and clarify the rights of all refugees and displaced persons 'to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived'.
And on the list goes - Security Council resolutions by the dozen, UNGA decisions, judicial decisions, UN human rights committee comments - supporting the basic contention that we all know to be true that people's homes and lands are meant to be scared and that arbitrary and cruel acts stealing people's homes, lands and properties should never be allowed to stand. The law supports this and we need to defend these principles without hesitation.
Second, Despite the Law and the Best Efforts of So Many, Sometimes Restitution Simply Does Not Come to Pass
In discussing potential restitution in Syria we need to recall the many millions of legitimate restitution rights-holders who are still waiting for their 'effective remedy' to forced displacement to come to fruition. First on the list, always, are what are now more than six million Palestinian refugees and their descendents, forcibly and intentionally displaced now for almost 70 years, still without a remedy, still residing in misery, still waiting for UN SC resolutions to be implemented, still waiting for the billions of dollars owed to them in one of the world's most callous land grabs, all the while knowing that a non-descript building in Queens, NY holds all their property records in their original form ready for adjudication if a restitution process ever comes into place. How ironic that Jewish victims of the Holocaust have been one of the largest groups of beneficiaries of restitution efforts over past decades from Germany and Eastern Europe, and yet the State they like to call the Jewish State is perhaps the least likely of all States today to uphold the principle of restitution for people they have stolen land and homes from for decades. But let's not forget that this happened because of the highly organised and well-resourced World Jewish Restitution Organisation (WJRO) which led the way making these forms of restitution a reality; an important lesson for the prospects of restitution in Syria - organised demands for restitution by the potential beneficiaries can yield results!
Conversely, how ironic it will be, too, were the government of Syria to resistrestitution efforts at home after having traditionally been one of the strongest supporters, if not the strongest, for Palestinian rights to return and restitution.
But the Palestinians, of course, are not alone, with the Rohingya now looking ever less likely to be able to return to the horrors of Rakhine State from where they have been so recently ethnically cleansed. Add to them, the ethnic Nepali refugees from Bhutan who are still waiting, Cypriots still waiting, Zimbabweans still waiting, Western Saharans still waiting, Muslims displaced during the conflict in Sri Lanka still waiting, and so many more, who must be constant reminders of why getting restitution right in Syria will be so important; not only for the individual victims, but for international peace and security too.
Third, Restitution NEVER Plays Out The Same Way Twice, Looks Differently in Practice Than First Envisaged, and Almost Always Falls Short of Expectations
It's been 23 years since South Africa's restitution journey began, 22 yearssince the famous annex 7 of the Dayton Accords was signed, 18 years since the Housing and Property Directorate in Kosovo started its restitution work and Colombia's restitution efforts are too new to assess. What these and all other restitution efforts share in common is the incredibly heterogeneous ways by which the restitution process played out in practice. Restitution blueprints may sound nice, but history shows the need for flexibility, adaptability and patience, as restitution never plays out the same way twice. So, too, restitution in practice often looks very different than first envisaged. Kosovo's HPD was designed to primarily assist the hundreds of thousands of Kosovar Albanians expelled by the Serb minority, but in practice the HPD ended up assisting more Serbs than Kosovars as a means for resolvingthe horrible reverse ethnic cleansing which occurred after the return of the Kosovars and took their revenge. South Africa's restitution programme was expected to be far larger than it eventually turned out to be, and Tajikistan's restitution process went smoother and quicker than planned.
With restitution, anything can happen and we need to bear this mind in considering the best way forward for Syria's refugees and IDPs. Given that most restitution programmes over the past several decades have come about following deep structural political changes followed at least ostensibly by more democratic political structures - Communist or authoritarian regimes overthrown, racist regimes ended, governments ousted by US and NATO air strikes and so on - this does not auger well for the restitution hopes of the Syrian people, at least at the moment.
Fourth, Restitution is About Alot More Than Mere Return; It is but One Piece of a Much Larger HLP Pie
This is vital point for countless reasons, but suffice it to say that many legitimate restitution claims concern homes and properties that no longer physically exist, and thus a restitution programme designed only to facilitate return in and of itself would fall well short of the full spectrum of HLP rights to which everyone is always entitled, notwithstanding any restitution claim they may have. Restitution rights are vital, but so too are the rights to return, to adequate housing, to be protected against forced eviction, not to be arbitrarily deprived of one’s property, to privacy and respect for the home, to freedom of movement, the right to equality and non-discrimination and so many others.
Incorporating housing and tenure rights into the restitution process ensures not only that access must be afforded to a decent home (with requisite laws and policies supporting this), but also that any imperfect HLP registration system that may have existed at the time of displacement is developed in a way that everyone has an enforceable right to security of tenure notwithstanding the tenure status they have as owners, tenants, slum dwellers or any other status. Restitution can provide a means for re-invigorating what are almost universally imperfect HLP registration systems into tools protecting the HLP rights of all, and with built-in safeguards against fraud or manipulation as is also so commonplace. So, too, the right to be protected against forced evictions; this right, too, can be bolstered by the presence of restitution systems that secure the rights of legitimate claimants, as well as protecting the rights of secondary occupants, who are often - but clearly not always - at least somewhat innocent pawns in military power plays favouring one group over another, and who use houses as a form of war booty and rewards for loyalty. A broad and inclusive approach to restitution is required whereby past privileges in the HLP sector are not re-created favouring one group over the other, but a process whereby the restitution process forms the basis for sometimes entirely new visions of the HLP sector where righting past wrongs are combined with plans to guarantee HLP rights for all.
Finally, and fifth, To Succeed, Restitution Needs to be Simultaneously Deeply Conservative and Radically Progressive in Nature
Restitution by its very nature is essentially conservative in nature, as it seeks to return a situation to what it once was, but as just noted, it must not stop there. For restitution to work its potential magic, it must also be radically progressive as a process that accepts that wrongs were committed, that sees restitution as one way of correcting these, and ultimately one that provides a basis for fundamentally overhauling HLP law and policy in a manner fully consistent with the rights of everyone to a place to call home which is safe, secure and adequate, not overly expensive and a place where a full life can be lived in peace and dignity.
And despite limitations, let's not forget that restitution can and does work. Yes, the scale of any potential restitution effort in Syria will be surely be daunting with so many millions of people forced to flee their homes since 2011, but let us recall that under the restitution processes in Germany (concerning former East Germany) claims were made for 2.7 million pieces of property. In the Czech Republic property collectively valued at US$ 10.7 billion was successfully restored to its former owners, and in Estonia more than 200,000 applications for the restitution of 160,000 properties were received by the bodies responsible for managing the nationwide restitution program.In Kosovo, more than 30,000 claims were processed, while in Colombia, up to 360,000 households or 1.5m people may be eligible for restitution under the restitution programme there. And these are just a few of the examples we could hold up as proof that restitution can work.
Bearing all of this in mind, we can distill ten key points that should form the basis for a comprehensive approach to restitution in Syria:
1. The State (and where the effective control of the State is absent, other groups exercising jurisdiction over territories and people, whether under dispute or not) retains legal responsibility for securing restitution rights for all who assert such rights notwithstanding when the acts and omissions, generating restitution claims occurred;
2. Notwithstanding the cause of forced displacement everyone must have equal access to a restitution remedy;
3. Everyone with a restitution claim must have access to an effective remedy for reviewing such claims;
4. Securing the independence, impartiality and fairness of any restitution process is vital for its eventual success;
5. Everyone deserves a commitment to the non-repetition of acts and omissions that generated restitution claims;
6. Restitution can take various forms, all of which are fair, equitable and just;
7. Restitution processes should be quick, fair, effective and affordable, and set within an agreed time-frame, both in terms of how far back in time claims can go and how long citizens will have to submit restitution claims;
8. Restitution is an essential element of the peace process. Including restitution rights within relevant national legislation and within peace agreements and voluntary repatriation/return agreements will be vital to provide a basis for an eventual restitution programme;
9. Restitution is a tool for conflict prevention. Ignoring the restitution demands of returnees will tend to aggravate rather than reduce tensions or violence; and
10. Restitution is beneficial for the economy. The growing awareness that the resolution of housing, land and property restitution claims and disputes can be a vital contributor to economic and social stability, as well as broader reconciliation efforts within post-conflict peace building efforts. Syria will be a better country if restitution demands are met in the near term.
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Indeed, during the last three decades an historic shift took place where – at least as far as restitution is concerned – whereby some of the world’s politically least organized and economically weakest groups, were enabled to assert claims and recover HLP rights that in earlier eras would have been virtually impossible to even contemplate. From the age-old tendency of ‘once displaced, always displaced’, we have been transported to a period more aptly captured by ‘once displaced, increasingly entitled to return home’. Broadly stated, thus, the process of restitution as a remedy for repairing wrongful acts has expanded and continues to grow. To cite one of the more restitution processes - that of Colombia –a recent judicial decision reveals that: “The right to the restitution of the property which has been plundered from the people, is also a fundamental right....the Geneva Conventions, the UN Guiding Principles on Internal Displacement (21, 28 and 29), and the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons [Pinheiro Principles], constitute part of the constitutional framework, as they represent developments adopted by the international doctrine on the fundamental right to integral reparation for harm caused.”