Documenting Housing, Land and Property Violations in War
Despite prohibitions in international law, conflict and war is till characterized by systematic bombing and destruction of civilian neighborhoods and theft of property, amounting to war crimes. Victims, fleeing for their lives, face another battle in the event of peace or other voluntary return, perpetuating frustration for IDPs, refugees and their host countries. The perpetual hostility facing these victims has been referred to as weaponizing housing, land and property.
Among the applicable international law norms, the most important are General Assembly resolution on “Responsibility of states for internationally wrongful acts” (2002). which in its Article 31 relates to reparation in the case of liability for the wrongful acts of states, and, regardless of the perpetrator, the United Nations Guidelines for Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles) of 2005, and “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” (2006).
All of these norms recognize the right of those affected, including those displaced and forcibly deported, to recover their property and return to their original homes, and the responsibility of states to ensure reparation, in order to restore law and achieve community peace and security. This duty prevails despite the difficulties and complications in organizing a national effort, working to achieve conditions Prepared for the voluntary return and recovery of property, when the parties to the conflict carry out not only the destruction and looting of property, but also the destruction of property records and title deeds, as well as the transfer of their possession to other people. These complications characterize the situations in the case of armed conflict in Syria, Yemen, as well as Iraq.
Therefore, it is necessary to develop mechanisms to document and register the assets of IDPs and forcibly evicted persons from lands, housing and property, and to protect them from looting, or confiscation according to laws applying to the party controlling the areas, neighborhoods and housing that its residents abandoned in search of a safe haven. The outcome of the underlying crimes must not bring about a change in the demographic composition for those affected regions. Pinheiro Principle 15 emphasizes the importance of facilitating the process of registration and documentation of property of displaced persons, especially those who were tenants, non-owners, or were secondary occupants.
In the Iraq experience, the civilians have suffered the serial consequences of the war to topple Saddam Hussein, then the war against the Islamic State. Although the Iraq Property Claims Commission was established in 2004, whose mandate extended in 2015 to also cover victims of ISIS violations, the mechanisms that were applied to recover land, property and housing, or obtain material compensation for their loss, did not sufficiently take into account the actual values of these assets. Moreover, the accumulation of cases, the slow pace of procedures that may take years, haver left the victims ill-confident in the government`s ability to help them recover their property, especially with weak procedures to implement international standards at the local level, and the control of customary justice mechanisms. These factors have contributed to more obstacles to returning property to victims, especially for those who lost their tenure documents or were holders of unofficial tenure. This is due to a weakness or lack of tools to document and record property of civilians at the time of their displacement from their cities and villages of origin, as well as the lack of a comprehensive and fair system that respects the victims’ right to restitution or other reparation for violations of their housing, land and property rights.
As for the situation in Yemen, it is more complicated to diagnose mechanisms for registering or documenting property, due to the prevalence of customary rules over the management of land and water resources. Therefore, conflict over land and water are the most common in Yemen. Although there is an official system for transferring ownership, most transfers are not officially registered. In the capital, only 20% of land transfers have been registered, and the registration process for property at the national level does not exceed 5–10%, which means that registration of property is not sufficient to guarantee the right to land.
Consequently, the consequences of these complications appeared clearly, in the post-unity war case 1994, and then the internal armed conflict erupted between the Houthis and legitimate government forces. After the War of Unity, the lands and properties of the south were systematically plundered and seized over the years for the benefit of influential persons in the north, while removing southern Yemeni employees from state institutions. As well as managing the distribution of lands and natural resources singularly and illegally by a regime based on the former Saleh, to ensure the loyalty of the tribes and sheikhs to support his influence and his political system. After national attempts to implement a comprehensive reconciliation in 2014, and the establishment of a Committee to Address Lands and Property looted by the regime of Ali Abdallah Saleh, the situation became more complicated with the outbreak of power struggles with the Houthi militias and their control of the capital, Sanaa, and state institutions, where these militias conduct systematic operations in the destruction of property assets and the documents related to land and public and private real estate in the areas under its control, as well as forced displacement in the regions of Saada, Dammaj, Amran and Taiz. Therefore, the need remains urgent to support civil society efforts in developing a mechanism to register the property of victims of plundered land, housing and property that was once looted by the Saleh regime and then plundered again by the Houthi militias.
In the case of Syria, the demolitions of residential neighborhoods, the looting and destruction of civilians’ housing and property have been a systematic war tactic, with the aim of reshaping the social fabric of these areas. This has been followed by legislation and decrees that threaten the ownership of property and housing for the displaced in areas where the government has restored its control, This further threatens the chances of victims of these violations to ever recover their property again, even after their return. Reports indicate that 27% of the housing stock in Syria has been affected by the war, including the destruction of at least 7% entirely, and 20% partially destroyed as of 2017. That translates as 238,311 houses partially destroyed and 78,339 totally destroyed in ten major cities. The latest of these systematic practices was the wholesale destruction of the two cities of Maarat al-Numan and Suraqib, and confiscation of the property of its residents in 2019.
Concurrent with these military operations to target residential neighborhoods, the Syrian government has issued a set of laws and decrees that entrenched demographic change, emptied many neighborhoods of their residents, and brought about a change in the property rights system. These include Decree No. 40 of 2012 regarding the demolition of all unauthorized buildings in “unofficial” neighborhoods, Decree No. 66 of 2012 affecting two areas south of Damascus, the provisions of which include expelling residents, confiscating property owners and initiating real estate projects. In 2018, the Syrian government issued Law No. 10 to expand the scope of Decree No. 66, to include all Syrian regions, allowing any administrative authority to define areas for real estate development projects in informal neighborhoods within their jurisdictional territory, all of which include areas that have seen strong opposition to the Syrian regime. And other laws that the Syrian regime rules over its control over the areas and neighborhoods that were opposed to it.
In the face of these challenges, civil society is struggling to establish mechanisms for registering and documenting the properties of displaced Syrians and refugees, especially in areas destroyed and where their inhabitants have been completely displaced. Their efforts include keeping backup copies of documents proving ownership, and listening to testimonies of witnesses and victims in this regard. For example, an initiative by the Free Syrian Lawyers Association has created an electronic platform to document individual real estate ownership in various areas of the Syrian conflict, and to record the type of attacks on the property as a result of the conflict.
In 2017, the Syria Hub Protection Needs Assessments conducted a survey to determine the vulnerabilities of Syria`s 13.5 million refugees and displaced persons. Of the 13 protection issues surveyed, the highest occurrence was lack/loss of civil documentation, affecting 83% of assessed communities. This example gives an impression of the volume of the problem facing the displaced persons of the region who, from Western Sahara to Iraq total well over 33 million.
Photo: Syrian refugees. Source: Chicago Journal of Foreign Policy.