BADIL 2003 – 2004 Expert Forum for the

Promotion of a Rights-Based Approach to the Palestinian Refugee Question

  Summary of Proceedings, Seminar-2
‘Housing and Property Restitution
in Durable Solutions for Palestinian Refugees’

Hosted by
Graduate Institute of Development Studies (IUED)

Geneva, 2-4 October 2003

Contents 

I. Legal Analysis: The Right to Restitution in International Law (Session One, 03-10-03)

II. Stocktaking: Property Ownership of 1948 Palestinian Refugees, Israeli Expropriation Laws and Policies, Past Palestinian Efforts at Property Restitution, Available Property Documentation and Scenarios for Restitution (Session Two, 03-10-03)

III. Lessons Learned: Comparative Experience with Housing and Property Restitution (Session Three, 04-10-03)

IV. Strategies: Promotion of the Palestinian Right to Housing and Property Restitution (Session Four,04-10-03)

Notes

• This document does not include summaries of the presentations made in the public evening session of 2 October 2003.

• This seminar was sponsored by: the Swiss Federal Department of Foreign Affairs (PD IV), Stichting Vluchteling/Netherlands, ICCO/Netherlands, and the APRODEV NGO Network.

I. LEGAL ANALYSIS:

The Right to Restitution in International Law

(Session One,03-10-2003)

Presentation of Working Papers: Two papers, summarized below, were presented for discussion.

The first paper, ‘The Right to Housing and Property Restitution in Bosnia and Herzegovina, A Case Study,’ presented by Paul Prettitore (OSCE), provided an analysis of the establishment and enforcement of the right to repossession of property in Bosnia and Herzegovina. The right of refugees and displaced persons to return to their homes of origin and to repossess or be compensated for property lost during the conflict is set forth in the 1995 Dayton Peace Agreement. International will was required to facilitate effective implementation of the laws regarding restitution of properties. Local authorities on both sides were unwilling to enact adequate legislation. The Peace Implementation Council requested the adoption of appropriate legislation and recommended, additionally, international assistance for reconstruction of housing conditioned on implementation of necessary legal reforms. Experience in Bosnia and Herzegovina provides important lessons in a number of key areas, including: establishment of the right to repossess property; who is entitled to claim; the claims procedure; enforcement mechanisms; rights of current users of the property; and compensation. The paper also provided a general overview of the right to property, protection against arbitrary deprivation of property, and the right of refugees to repossess property lost during conflict through abandonment, nationalization or expropriation. While the right of refugees to return to their homeland is well established in international law, the right of refugees and displaced persons to repossess property they have lost during conflict is only starting to be recognized on a regular basis. The right to property, or at least the right to non-interference with property, has been addressed under international human rights law – in both universal and regional treaties. In addition, a number of treaty bodies have recently elaborated on the rights of refugees and displaced persons to repossess their property, including the Commission on Human Rights, the Economic and Social Council and the Committee on the Elimination of All Forms of Racial Discrimination. Such rights have also been the focus of many resolutions of the UN Security Council and General Assembly. These rights also have some basis in international humanitarian law, as protection of property is required under the Hague Regulations and the Geneva Conventions. Many of the peace agreements signed in the last decade also make reference to the rights of refugees and displaced persons to return to their homes and repossess property.

Gail J. Boling (Birzeit University Institute of Law) gave the second presentation, ‘Restitution in International Law and Applicability to the Palestinian Case.’ The presentation provided an introduction to the origins of the concept of restitution in domestic law and its grounding  in four bodies of international law: humanitarian law, the law of nations, human rights right, and refugee law. The right to restitution is based in both treaty and customary international law. Discussion of the latter included both ‘regular’ custom and ‘peremptory’ or jus cogens norms. Israel and the Jewish community have progressively participated in the development of the law on property restitution. Israel, therefore, cannot use the ‘persistent objector’ defense to argue against Palestinian restitution claims. In fact, Israel has been both a ‘persistent advocate’ of the law of restitution and a persistent beneficiary of the law of restitution. Based in particular on the precedents of the Nuremberg tribunal and the sweeping restitution laws enacted by the Allied Powers in occupied Germany following World War II, it is evident that the principle that restitution is the appropriate remedy for wrongful governmentally-sanctioned taking of property was well-established in international customary law by 1945 and therefore is binding upon Israel. Despite the existence of secondary occupants, Germany had to restitute as much property as possible. Germans were critical of the laws but the Allies enforced the policy in all five zones. These restitution laws were eventually incorporated into domestic German law. The legal authority cited for the property rulings in the Nuremberg judgments was the Hague Regulations. The authority of the Hague Regulations as binding, nonderogable customary law by 1945 cannot be challenged by Israel and therefore is very important. The presentation also focused on the concept of unjust enrichment. Where a party is found to have illegally obtained a gain it must disgorge the benefit. This concept exists in Israeli domestic law. Under the related international law doctrine of ‘Acquired Rights’, property belonging to an individual remains under the ownership of the individual regardless of a change in sovereignty. This principle has been consistently reaffirmed by the Permanent Court of International Justice and the International Court of Justice. The PCIJ cases well predate the events of 1948 and therefore are also important precedents. Furthermore, Israel’s wrongful taking of Palestinian refugees’ property continues to exist as an ongoing, continuous violation to this day and therefore constitutes a “continuing violation,” according to the well-known doctrine of international law. Thus, Israel – by keeping the violation, and hence the issue, “alive” – has exposed itself to all the progressive developments of international law that have occurred since the initial breach of the international obligation in 1948. Since property rights have only gained greater recognition in that intervening passage of time, Israel’s legal obligation to apply the remedy of restitution has only gained greater strength. There can be no legal argument that is has diminished. The landmark 1996 ruling of the European Court of Human Rights in the Loizidou v. Turkey case (where a  “continuing violation” was specifically found) is illustrative of this point. The plaintiff in that case was awarded both restitution and compensation for damages.

Discussion

1. Issues Raised in Response to the Working Papers, Responses by the Speakers

On housing and property restitution in Bosnia:

                     -            How did the authorities deal with the issue of restitution in light of changes that took place during the war in Bosnia?

                     -            Some villages were completely destroyed. In many cases the names of towns and individual streets were also changed. Secondary occupants would even change apartment numbers in order to block repossession. While this created confusion and frustration, legally, the changes did not result in serious problems due to the fact that origins of properties could be traced through local municipalities. It was relatively easy to relocate destroyed places or identify villages, towns or streets where the names had been altered. The name changes have remained. Today the official name is hyphenated – i.e., places and streets carry both the pre- and post-war names. Refugees and displaced persons commonly complain about the name changes. Places were sometimes named after persons responsible for serious human rights violations. There have been over 260,000 claims for property repossession. Eighty-five percent of cases have been fully implemented – i.e., a decision has been issued, the status of the current occupant has been determined and the original owners have picked up keys to the properties. Although the international community does not keep records, it appears that in practice the majority of the properties have been sold by their owners after repossession.

                     -            What kind of property is subject to compensation? How are the damages evaluated and how is compensation allocated?

                     -            Under the Dayton Peace Agreement and the Bosnian constitution, refugees and displaced persons have the right to compensation for properties lost during the war. However, it was never clearly been elaborated whether compensation was only for housing or should also cover movable property e.g., vehicles, livestock, business equipment, etc. Annex 7 of the Dayton agreement provided for two methods of compensation. A compensation fund was to be established in the Central Bank of Bosnia. The fund was never established due to the fact that the Bosnian government did not have financial resources to contribute to the fund and international donors were more interested in funding reconstruction of housing and infrastructure than compensation. Annex 7 also provided for an international body parallel to domestic state structures. The Commission for Real Property Claims (CRPC) was mandated to receive and decide claims for real property, regardless of whether the claim is for restitution or compensation. The CRPC never undertook any activities regarding purchase, sale, lease and mortgage of property. Instead, it focused its activities on issuing decisions on claims for repossession of properties, even in cases where applicants filed claims for compensation. In practice refugees and displaced persons were able to repossess and subsequently sell or exchange their properties as a form of compensation.

On housing and property restitution in Israeli law:

                     -            Does Israeli domestic law recognize the concept of unjust enrichment?

                     -            Unjust enrichment is an equitable concept of contract law in the Anglo-Saxon tradition. It applies where one of the parties to a contract has benefited at the expense of another. Therefore, the party who benefited must “disgorge” (give back) the benefit. In England, there are two legal branches: one provides for compensation and the other for equitable/injunctive relief (e.g., restitution). Israeli domestic law is strongly influenced by British law, due to the effects of the Mandate. The concept of unjust enrichment does exist in Israeli domestic law. The problem for Palestinian claimants is that Israel has enacted its property confiscation laws (e.g., the Absentees’ Property Laws), which bar Palestinian claimants from using the equitable concept of unjust enrichment to reclaim their properties. Nevertheless, the principle is operational in international law and can be used in an international court.  It also can be invoked in a domestic court, where international law is recognized as law (which is not always the case – see Israel).

                     -            How does international law relate to Israel’s absentees property law?

                     -            In general, international law may override national law, especially when its authority is commonly recognized, e.g., as with customary or jus cogens norms, or if relevant terms have been included in a peace agreement.

                     -            What about the cases where the Israeli government expropriated property not only during war but also in direct violation of international agreements and resolutions? For example, Israel expropriated property from Palestinian villages that were to remain intact under 1949 armistice agreements.

                     -            That case involves an illegal taking of property. Based on the International Court of Justice jurisprudence, the violating state is required to return the property to the rightful owner. Again, the landmark case of Loizidou v. Turkey decided by the European Court of Human Rights is instructive. 

                     -            On what grounds can one file a claim against Israel for land restitution? Israel does not dispute the fact that the land was expropriated from Palestinians. Ownership of the land can be clearly traced to its original inhabitants.

                     -            It may be possible to make claim based on customary norms (assuming that the persistent objector defense can be defeated), and particularly if jus cogens norms can be argued (for which the persistent objector defense is not available). In assessing the strength of a customary norm (and whether it has attained the status of jus cogens, for example), one must examine state practice over time. The principle of self-determination, for example, is a jus cogens norm, as is the principle of non-discrimination and the prohibition on the acquisition of territory by force. Consequently, it may be possible to file a claim for restitution against Israel based on the violation of jus cogens norms.

                     -            What types of arguments could Israel raise against restitution claims?

                     -            In public international law, the inter-temporal doctrine based on the Island of Palmas arbitration, involves disputes over sovereignty issues. The doctrine states that “acts should be judged in light of the law at the time of their creation”. However, Max Huber, who formulated the doctrine, did include a second prong to his formulation, namely: “As regards the question of which of different legal systems prevailing at successive periods is to be applied in a particular case (the so-called intertemporal law), a distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of law.”  Thus the inter-temporal doctrine has a different formulation when it is applied to continuing violations (or continuing wrongful assertions of a right). In such cases, the law as is has evolved throughout the life span of the breach of the international obligation must be taken into consideration.

                     -            What rights would Palestinian organizations have in relation to confiscated lands?

                     -            One has to draw a distinction between individual (or their heirs) property rights, collective property rights, and state claims on property and rights. One does not exclude the others. Individuals (or their heirs) can claim the restitution of their owned property, while institutions have right to claim property on behalf of individuals (e.g., where there are no heirs to claim) or on behalf of communal property. However, with respect to the rest of territory – i.e., “state lands” – it is probable that only a future State of Palestine would be entitled to file a claim for restitution or compensation of state property lost during the conflict.

On restitution in other cases:

                     -            Is there any precedent for state property restitution in post-WWII Germany?

                     -            In Germany, individuals or their heirs were privileged and encouraged to apply for restitution under new legislation imposed by the Allies. Communal property was, and continues to be, restituted. However, it appears there is no precedent in the German case for the restitution of public property.

                     -            Are there precedents in Bosnia and in other cases?

                     -            Communal ownership of property existed during the Ottoman period and under the former socialist regime in Bosnia. In some cases communal land was reallocated to displaced Bosnian Muslims. This category of land, however, was left out of the major scheme for restoration of property. This had a negative impact on the possibilities for resolving the refugee issue. In many cases individuals could return to their homes, but not to their agricultural lands. The issue of communal property is also relevant in other cases, including Africa, East Timor, Guatemala, and Indonesia. A restitution regime that focuses only on individual claims would be unjust because many lands are held communally. The difficult question that has to be addressed is identification of the body to which communally held property is returned when the communal entity no longer exists.

On property evaluation:

                     -            How can we deal with the evaluation of confiscated properties? Is compensation generally awarded in addition or as a substitute for restitution?

                     -            The essential rule, which was formulated in 1928 by the Permanent Court of International Justice, is: “restitution in kind” (i.e., return of the original item or, if it is not available, one of corresponding value). However, if this is not possible, full compensation must be paid. The payment of the sum must correspond to the value, which restitution in kind would bear. An award can be allocated for damages or loss which would not be covered by restitution in kind or the full payment.

2. Additional Topics were raised in the broader discussion for future study and clarification. For a listing of these topics, see section IV/3 (Research Agenda and Strategies)

*****

II. STOCKTAKING:

Property Ownership of 1948 Palestinian Refugees, Israeli Expropriation Laws and Policies, Past Palestinian Efforts at Property Restitution, and Available Property Documentation and Scenarios for Restitution

(Session Two, 03-10-03)

Presentation of Working Papers: Three papers presented for discussion and additional comments on property documentation by the UNCCP are summarized below. One additional paper (Joe Schechla, ‘The Habitat International Coalition’s Dual Strategy for Defending Palestine’s Refugees, Displaced and Dispossessed’) was submitted to the expert seminar as a background paper.

Salman Abu Sitta (President, Palestine Land Society) gave a power point presentation entitled “Components of Property Restitution in Palestine” that provided an overview of Palestinian dispossession and possibilities for return and restitution. Identification of refugee families and their current place of residence is generally not problematic. Every village was dispersed to a maximum of two locations. Locations of refugee villages and properties are well documented with British Mandate maps and land titles. One can identify Palestinian land claims by deducting the total area of Jewish claims, which were well documented, from the total area of pre-1948 Palestine. Land considered by the British as state land should be returned to its original owners. Documentation of Jewish land in Palestine before 1948 and land held as state land by the British administration would compliment material previously collected by the United Nations. Ninety percent of village sites are not built on. Of the remaining 10 percent, 7 percent are partially built over, 3 percent totally built over (mostly near Tel Aviv and West of Jerusalem). However, only 3 percent of registered refugees are from these areas. The proposed return plan is phased over seven stages beginning with rural refugees and then proceeding to urban refugees. There are no practical difficulties in the return of the refugees.

The second paper, ‘Israel’s “Land Laws” as a Legal-Political Tool: Confiscating and Taking over Palestinian Arab Lands and Creating Physical and Legal Barriers to Prevent Future Property Restitution,’ by Usama Halabi (Advocate) focused on Israel’s land and settlement policy since 1948. The paper reviewed legal methods used by Israel to achieve state (i.e. Jewish) control of the majority of the land of historic Palestine. This included the establishment of Jewish settlements and enactment of laws and regulations to prevent restitution of land to its original Palestinian owners. Zionist institutions, including the Jewish Agency, World Zionist Organization, and the Jewish National Fund (JNF) have been used as a cover for state discrimination against Palestinian refugees and Palestinian citizens of the state. The latter, which  has “specialized” in buying and taking over private Palestinian lands, acted before 1948 as a private foreign company based in Britain. However, the JNF has become an Israeli private company since 1953 according to a special law enacted by the Kenesset known as the Israel National Fund Law of 1953. According to its memorandum the JNF acts within any area under the jurisdiction of Government of Israel and for the benefit of Jews only, and in case the JNF will be dissoluted, all its property will be transferred to the Israeli Government. It is estimated that the JNF owns  around 13 percent of  the lands in Israel. In addition to JNF Law, the Israeli Parliament (Knesset) enacted in 1953 the Law World Zionest Organization and the Jewish Agency (Status). According to Article 4 of this law, these two “national organizations” have been recognized by the state of Israel as allowed “to continue acting in Israel to develop the state and it is inhabitants, and to settle immigrants from the diaspora …”. The paper also examined the use of a number of key laws including the 1945 Defense Emergency Regulations, the Emergency Regulations (Exploitation of Uncultivated Land), Emergency Regulations (Security Zones), Absentees Property Law, Development Authority Law, Land Acquisition (Validity of Acts and Compensation) Law, Lands (Acquisition for Public Purpose) Law, and the State Property Law. Land expropriated under these laws is part of Israel’s ‘land reservoir’ to be held in perpetuity for the Jewish people. Any serious plan to enable/facilitate the return of Palestinian refugees and displaced persons to their homeland/original villages and/or to create a real possibility for property restitution, has to include proposed changes/ amendments to the “land Laws in Israel” so that “Israel lands” can be again transferable. Such legal changes are not likely to happen based on Israel’s good well. There must be real Palestinian and (mainly) international diplomatic efforts to push for a political-legal solution (within a peace agreement) to the Palestinian refugees problem similar to the one reached in the case of Bosnia and Herzegovina.

A third paper, ‘Right of Return – The Ever-present Fear, The Iqrit Model and Land in Israel,’ by Hussein Abu Hussein (Advocate) was presented by Usama Halabi in absence of the author. The paper provides an overview of the legal steps taken by internally displaced Palestinians from the village of Iqrit between 1948 and 2003 to return to their lands and an overview of Israel’s strategy towards Palestinian land. When Iqrit was occupied on 8 November 1948 the Israeli army ordered its inhabitants, together with those of the neighboring Palestinian village of Bir’im, to leave their villages. The villagers were told this was due to security concerns along the nearby Lebanese border, and they left only after being given assurances that they would be permitted to return within fifteen days. When they discovered that they would not be allowed to return, the residents turned to the courts. In 1951 the High Court ruled that the residents of Iqrit should be permitted to return to their village following the cessation of hostilities. The Israeli military temporarily evacuated the village based on security grounds. The military subsequently destroyed the village to prevent the return of its Palestinian inhabitants. The High Court subsequently ruled against four further petitions filed by residents of the village in 1952, 1982, 1997 and most recently in 2003. The primary reason for ruling against the petitioners is Israel’s fear of establishing a precedent for the right of return of Palestinian refugees. The second part of the paper, which is based on a book co-authored with Fiona Mckay (Access Denied: Palestinian Access to Land in Israel. Zed Books, 2003) examines the three main tools used by Israel to restrict Palestinian access to land: dispossession, establishment of a land regime based not so much on ‘nationalization’ but rather ‘Judaization’ of the land, and land planning. For Israeli Jews planning is positive, dynamic and pro-active. It is designed to encourage development. For Palestinians, planning is passive, regulatory and reactive. It works to prevent development. If Israel is to evolve into a state that accepts basic international and human rights norms, it will have to prove itself willing to redress the wrongs of the past 50 years, modify its land regime, and allow equality of access to land to its Palestinian citizens.

In addition, Michael Fischbach (Randolph-Macon College) presented general comments about the land documentation project undertaken by the UN Conciliation Commission for Palestine (UNCCP) based on a paper entitled ‘The Usefulness of the UNCCP Archives for Palestinian Refugee Compensation/Restitution Claims.’ The paper is based on research conducted by the author. (Records of Dispossession, Palestinian Refugee Property and the Arab-Israeli Conflict. Columbia University Press, 2003). The UNCCP undertook a study from 1952 to 1964 to determine every piece of Arab-owned land in that part of historic Palestine that became the state of Israel. The Commission did not determine if properties were refugee properties. The Commission also assigned a value for the properties. Information was collected from British land registries and tax documents. The UNCCP archives contain the most exhaustive documentation of refugee property losses. They also include careful studies of communally owned Arab land. The records were digitized in the 1990s and a GPS system was added. Additional copies are held by the PLO, Jordan, and Egypt.

Discussion

1. Issues Raised in Response to the Working Papers, Responses by the Speakers

On the status of Palestinian refugee properties:

                     -            What does the phrase “villages are empty” mean?

                     -            Today, only 2 percent of Israeli Jews live on refugee village sites, not including those living in cities that were originally predominantly Palestinian. Seventy-seven percent of Israeli Jews live in 15 percent of the state of Israel. This leaves 200,000 rural Jews who have access to vast areas of refugee land (17,381 km²). The remainder of the land in these areas is used for military purposes and forests. Most rural Jews are residents of the moshavim (co-operative farms) and kibbutzim (collective farms). The kibbutz is in serious financial trouble today. In other words, the vast majority of Palestinian refugees could return to their properties without having to displace Israeli Jews.

On documentation of refugees and refugee property,

                     -            What are the sources for documentation of refugees and refugee properties?

                     -            Registered refugees can be identified through registration records administered by the UN Relief and Works Agency for Palestine Refugees (UNRWA). Today there are more than 4 million 1948 refugees registered with UNRWA. They constitute the majority of the refugee population. Other sources include passports, birth certificates, British land registration papers, aerial photographs, maps, and documents concerning land transactions.

On the return plan:

                     -            The logistics for return are very interesting, however, it does not seem realistic. What are the juridical, socio-political aspects of the plan? These are not addressed.

                     -            After more than a half-century of suffering, Palestinian refugees remain adamant in their determination to return home. The fact that the plan does not cover legal or other issues does not diminish its authority. The plan is based on the inalienable right of the Palestinian people to live in their homeland which is enshrined in international law. The plan is an attempt to bring hope and peace to a region devastated by war. Of course, implementation of the plan will encounter difficulties. There are social, economic and political obstacles, but most of these can be resolved.

On the UNCCP:

                     -            Who has access to UNCCP documents?

                     -            UNCCP documents are restricted. Some documents are available to researchers. Others, however, particularly those relating to valuation of Palestinian land, remain confidential. The UN did not wish to prejudice the outcome of the political process. The final 1964 report of the UNCCP only lists the quantity of land, but not its value. There was a fear that the valuation figures would become a political football. Digitised records of the UNCCP are not available for public use.

On Israel’s land regime:

                     -            In 1993 Israel proposed to create a committee to study the situation of Islamic Waqf property. What happened to this project? Is there any possibility to receive property restitution?

                     -            Restitution of Islamic Waqf property is generally regarded as a threat to the authority of the government of Israel. Property belonging to Christian societies, however, was not confiscated. Some Christian villagers were able to return to their village of origin. This may be used as precedent for restitution. However, Israel is an occupying power. There are no legal grounds for its existence. From a juridical point of view the entire situation is illegal.

                     -            In cases of compensation, how does the Israeli government evaluate land?

                      -            Many of Israel’s land laws include provisions detailing compensation. Article 6 of the 1950 Absentees Property Law, for example, includes some details for land evaluation. At the same time, Israeli valuations have never come close to the full value of the properties.

                     -            What is relationship between the state of Israel and Jewish National Fund? Are they connected? Do they work together?

                     -            The Jewish National Fund was initially a private organisation. However, in 1952 the Israeli Knesset adopted legislation linking the JNF to the state. The JNF carries out some state functions assigned by the Knesset. There is no parallel agency or government body that provides similar services to Palestinian citizens of Israel. Nevertheless the JNF still operates abroad as a charitable organisation under the guise of a private institution. The claim by Israel that the Jewish Agency and the World Zionist Organization are private charitable associations is false.  The Committee on Economic, Social and Cultural Rights recognizes that these organizations are not private associations. In 1968, the American Council for Judaism challenged the WZO and the Jewish Agency and the Justice Department made them register in the U.S. as foreign agencies (with a less favorable tax status). However, later on they succeeded to re-register as charitable organizations.

2. Topics Raised in the Broader Discussion

                     -            Today about five million Jews live in historic Palestine. We are in conflict with Jewish community. We did not ask them to come. We did not want them to come. However, the world imposed them on us. The fact that many Palestinians and regional parties do not recognize the Jewish state does not mean that Jews do not exist in historic Palestine. It appears impossible to convince the international community that the establishment of Israel was illegal. We have to find reliable legal grounds and practical plans in order to convince both friends and adversaries about the legitimacy of our demands. Moreover, to achieve that goal, we have to regard the Jewish problem as our problem.

                     -            Israel recognizes the right of Palestinian refugees to compensation because it wants to remove all legal and moral claims to the land and the right of return.

*****

III. LESSONS LEARNED

from Comparative Experience with Housing and Property Restitution

(Session Three, 04-10-03)

The third session was conducted in two parts. Working papers were presented and discussed in the first part. The second part was dedicated to discussion about lessons learned from comparative experience with land restitution.

III-A. Presentation of Working Papers: Two papers presented for discussion are summarized below. Additional comparative studies were submitted by seminar participants (Reem al-Salem, ‘Land Problems in the Context of Sustainable Repatriation in the Eastern Region of Afghanistan’; Monty J. Roodt, ‘Land Restitution in South Africa’; and, Lisa Jones, ‘Giving and Taking Away: The Difference between Theory and Practice Regarding Property in Rwanda’)

Madelaine Garlick (United Nations) presented a case study on housing and property restitution in Cyprus entitled ‘The UN Peace Plan for Cyprus: Property, Displacement and Proposed Solutions.’ The paper examines the property dimensions of the nearly forty-year-old conflict. It is estimated that there is approximately 1.4 million dunums of privately-owned Greek-Cypriot property in the Turkish-controlled north of the island. The Turkish Cypriot side has offered to pay compensation for the property in the form of a ‘global exchange’ of titles. In the Greek-controlled south of the island, it is estimated that there is 415,000 dunums of Turkish-Cypriot property. The Greek Cypriot side argues that the best solution to the problem is full restitution. The UN Secretary General indicated in his April 2003 report to the Security Council that international law was a major guiding element in the formulation of the proposals, including the provisions of the European Convention of Human Rights and emerging norms and practice, which would favour a settlement based on respect for individual property rights, and include the possibility of repossession or restitution. It also provides, however, that the exercise of such rights may be regulated or circumscribed in some cases, due to the fact that 40 years had passed since the first displacements, and that displaced people and communities on both sides had been forced to rebuild their lives and their economies. This includes ‘ceilings’ on the number of persons exercising the right of return and repossession of property. However, the restrictions on return and restitution were drafted after consultations with the two communities, and, according to the UN, reflect the maximum number of persons who might wish to return and repossess their properties. Institutions may only claim compensation for lost properties. The Plan also contains specific rules designed to assist and protect current users of properties subject to reinstatement. These provisions also have their own grounding in international law. In Cyprus, for all categories of affected property, there is a moratorium on reinstatement lasting five years for any occupied property. Thereafter, the rules treat differently two categories of people: Firstly, those with ‘sufficient financial means’ – who may, as a matter of course, apply for an extension of up to three years after the PB’s decision, before they will be required to vacate; and, Secondly, those current users without sufficient financial means in most cases will not be required to vacate the property until accommodation is available, either by provision in kind, or through financial assistance enabling him/her to secure his/her own accommodation. The plan provides for the establishment of a Property Board to receive claims and issues decisions on entitlements and a detailed set of rules to guide the restitution process. 

The second paper by Jean du Plessis (COHRE), ‘Notes on Restitution in South Africa,’ provided an overview of the land restitution process in South Africa. During the apartheid era some 80 percent of the population eked out a living on 13 percent of the land. Between 1950 and 1980 some 3-5 million South Africans were forcibly relocated, mainly into Bantustans. The post-apartheid land restitution process aims to restore land and to provide other restitutionary remedies to people dispossessed by racially discriminatory legislation and practice, in such a way as to provide support to the vital process of reconciliation, reconstruction and development. The intended outcomes of the process are defined as: a significant number of substantial restitution awards given to claimants that meet the criteria specified in the 1994 Restitution of Land Rights Act; an absence of disputes and conflict; the preservation of public confidence in the land market; and, frameworks developed for land claims and demands that fall outside of the Act. Key institutions include the Commission on Restitution of Land Rights, the Land Claims Court, and the Department of Land Affairs. Overall, there is no doubt that the process has delivered positive results for many South Africans. Admittedly the start was very slow. In the first five years a great deal of time was taken up simply receiving and sorting through the thousands of claims received, and sorting out legal and institutional blockages. Five years into the process, scarcely 50 claims had been resolved. However, by April 2003 around half (36,488) of all lodged claims had been settled. Some of the main challenges faced include onerous information requirements, duplication and confusion of institutional roles, a tendency to pay for compensation rather than restoring land which is much more difficult, the complex nature of rural and communal claims, and inadequate progress in the land reform process as a whole. Despite progress that has been made, restitution remains difficult and complex with the shadow of Zimbabwe hanging over the South African land reform and restitution process.

Discussion

1. Issues Raised in Response to the Working Papers, Responses by the Speakers

Comments raised in relation to South Africa:

                     -            Is there an appeals mechanisms for settlement of claims decisions?

                     -            If the decision in question was made by the Land Claims Court after a hearing, or after consideration of the recommendations of the Commission on Restitution of Land Rights, the usual legal procedures of legal appeal would apply. On the other hand, if the decision was made in terms of section 42D of the 1994 Land Restitution Act, then the settlement is usually based on full agreement between all parties. An appeal against this second type of settlement is not likely, unless a party to the matter was unaware of the negotiation process. The Commission takes various procedural steps to inform affected parties of the claim and to involve them in the negotiations, so such cases are not frequent. If an affected party is identified at a later stage, it is likely that an ancillary settlement would have to be worked out, instead of the initial settlement being reversed. However, in terms of recent amendments to the Restitution Act, the Minister now has stronger powers of expropriation of land in cases where the current landowners are not cooperative. It is very possible that some of these cases will end up in court.

                     -            How has the South African process addressed community claims for restitution?

                     -            This is a crucial question facing restitution in South Africa. Many community claims have been lodged, only a few of which have been settled, which is in itself a cause for concern as frustration is building amongst the claimants. In settled cases, the question of how the returned land is to be held is complex, and a variety of land holding options have been tried, including subdivision into freehold plots, joint ownership by a communal property association, and other options. In addition, determining who the ‘real’ owners are, and what different levels of right apply, is often the complex matter. The position of secondary occupants also arises. This is especially true when a group of landowners initially purchased the land as free hold, and had then allowed other groups to settle on the land, whether as tenants, sharecroppers or other forms of occupancy. In many cases such occupants lived on the land for generations, without their rights ever being formalized. How to accommodate their rights within the claims settlement is often a challenge and can cause delay and tension in the negotiation process. Further challenges include: how to deal with the constitutional rights of the present owner/s of land during the negotiation process; how to support and maintain the associations that are established to enable a community to jointly hold land; provision of development support and services after the settlement; etc. Creative and flexible solutions can and must be found to meet some of these challenges.

                     -             What happens when a claimant group is particularly large?

                     -            Some community claims represent hundreds of families. In one interesting rural case in which 115 families had purchased a tract of land on free hold. Together they had owned divided and undivided shares in the land. They also owned housing on the land. Their descendents were removed some decades later. When the restitution process commenced, they lodged a claim. After months of investigation, publicity and negotiation, the claim was ready to be settled. However, prior to the signing of the agreement, around 10 families had yet to be identified but no representative had come forward. Instead of allowing this to delay the case further, a decision was made by the community to hold the land in trust for the missing claimants, for a number of years, so that they could reclaim their land without having to approach the Commission or the Court. A time period was set, after which the land would revert to commonage to be used by the community as a whole.

                     -            There has been much effort for land restitution. However, figures point out that at the end of 2001, only 2 percent of the land has changed hand from the white to the black population. How can this disparity be explained?

                     -            This two percent is land transferred through the entire land reform process, including restitution, land tenure reform, and land redistribution. The situation is therefore quite serious, and pressure is mounting o the government to deliver land at a much faster pace. If restitution has been slow, redistribution and tenure reform have been even slower. In a sense, restitution has ended up carrying a disproportionate burden compared to the other two legs of land reform, which have faced serious delivery problems. The land redistribution process was brought to a halt for more than two-and-a-half years in the late 1990s, due to ministerial and policy changes. In the area of land tenure reform, formal registration of rights for some 30 percent of the population living in the former ‘homelands’ has been held up by debate and controversy over the most appropriate procedures to be followed.

                     -            How does the South African government deal with gender discrimination with regard to property restitution?

                     -            In spite of the existence of a number of constitutional and legal protections, in practice women face severe discrimination with regard to tenure security, land ownership and land inheritance in South Africa. While the standard intention of the restitution process is to benefit women as much as men, the outcome of settlements is often discriminatory. For example, in cases where people lost freehold title, it was invariably the men who held such title. In cases where land was communally held, men invariably controlled such land. It is possible, but very difficult, to undo such discrimination through the restitution process. Broader legal and institutional reform, together with a concerted programme, would be required to deal with the problem effectively.

                     -            What has been the role of NGOs in South Africa with regard to political changes that occurred? Did they promote or contribute to these changes?

                     -            In the early 1990s, there was widespread mobilisation of popular and rural movements across the country, assisted by land rights and development organizations such as the National Land Committee (NLS) and its affiliates. NGOs and community groups were active in early policy formulation and even legal drafting processes. More recently, however, as the land reform process appeared to stall and the situation in Zimbabwe unfolded, civil society movements have started to show signs of fracture, particularly on the question of land invasions. Even the NLC has been affected. This situation reflects deep divisions in South Africa on the question of how the colonial legacy should be addressed. Are we going to accept the compromises that have been made in the constitutional negotiations, and if not, what is the alternative? Virtually everyone agrees that land reform in South Africa has to be speeded up to avoid a situation like Zimbabwe, where proponents of the Mugabe government claim that they had tried all legal methods for land reform and they did not work. The question is how.

                     -            After the destruction of some Palestinian villages, forests have been planted on their ruins by Israeli authorities. One of them is called South African Forest. These forests were financed by some South African Zionist organisations. This may be a private issue, but what can we do about it?

                     -            There is a room for a campaign on this issue. It should be exposed in South Africa and in other countries involved in funding such forests, as part of a larger campaign to promote the right of Palestinians to achieve restitution.

                     -            Was the Commission on Restitution of Land Rights more of an administrative or quasi-judicial organ?

                     -            Probably somewhere between the two options. The Commission is able to make certain decisions – for example determining the validity of a claim – but these decisions are subject to endorsement by the Land Claims Court, or the signing of an agreement between the Minister and the affected parties.

                     -            From a legal standpoint, what is the difference between the ‘right to restitution’ and the ‘right to land’ in South Africa?

                     -            The right to restitution is defined as the restoration of a right in land, or equitable redress, to a person/s dispossessed of a right in land after 1913 and in terms of a racial law. A right to land is a broader concept, and is defined as “any right in land whether registered or unregistered, and may include the interest of a labour tenant and sharecropper, a customary law interest, the interest of a beneficiary under a trust arrangement and beneficial occupation for a continuous period of not less than 10 years prior to the dispossession in question.”

                     -            What were the nature and the composition of the Commission in charge of land restitution? Were internationals included in the Commission or did they supervise the land restitution process?

                     -            Commissioners are nominated and appointed by the minister. Some are lawyers, others are eminent people from progressive movements. There were initially five commissioners assisted by a number of officers (legal advisors, researchers, etc). Today, there are more. The Commission has never included international members or international observers or monitors. However, South Africa does have a Human Right Commission, which has investigated and made statements and recommendations on the issue of land reform, including restitution. In addition, it is active through its own research and the issuing of reports and checks on the progress of land reform.

                      -            Regarding the 2 percent of land that has changed hands, what sorts of people have been able to file successful claims?

                     -            The majority of resolved claims are individual, urban claims, which hae been settled primarily through the payment of compensation. The practice of paying compensation rather than restoring land has been criticised by NGOs, who argue that the State has failed to use restitution as a way of desegregating the cities. It is true that many claimants have preferred compensation, often due to the fact that it allows for much quicker processing of the claims. They do have a legal right to opt for this remedy. It must be noted that claimants are often second or third generation descendents, who have made a new life for themselves in new communities and so do not want to move back. Yet other individuals and groups have shown great determination to return to their lands of origin and have succeeded. They have had to deal with challenges related to support and development needs. In the case of rural claims, some of the areas are difficult to service and expensive to maintain, especially since the level of post-settlement support provided by the State to successful restitution claimants has been very weak.

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