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A Comprehensive Reference Work on Restitution Law

Written by  Gail Boling

Book Review: Housing, Land, and Property Restitution Rights of Refugees and Displaced Persons: Laws, Cases, and Materials. Edited by Scott Leckie. Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo: Cambridge University Press, 2007. xxii + 570 pp. $163.99. ISBN: 13: 9780521858755 hardback.

This book offers a ground-breaking and comprehensive survey of restitution-related legal materials never offered before in a single collection. The editor, Scott Leckie, an expert in restitution law, has gathered together 240 laws, cases and materials on restitution from around the world and organized them into a logically organized compendium. The goal of the book is to serve as a reference work on the law of restitution including international and national resources. The reader is taken on a world-wide survey of property-restoration schemes from locales as diverse as Rwanda, Afghanistan, Bosnia-Herzegovina, Georgia, Kosovo and South Africa, to name just a few. The international law sources include texts from international humanitarian law, international human rights law, international criminal law and the law of state responsibility and is a monumental endeavor to marshal evidence from around the world to demonstrate that restitution of property has become an accepted standard of international and national law, and a necessary component of stable and durable peace agreements.

The book is long, at 592 pages. It is divided into four broad sections covering housing and property restitution standards in four categories -- international, regional, national and case-law – and a fifth section on useful resources. The editor only includes the original texts of the legal instruments themselves and the book contains no commentary of any kind. In this sense the editor assumes a certain level of knowledge about the national and international legal regimes from which the texts are pulled, meaning that the book is not a light read. Legal texts presented in isolation do require the reader him/herself to provide background to put them into context and given the broad range of texts presented here, the reader is required to do a lot of background supplementation.

But perhaps the editor can be forgiven for this lack of narrative. The collection is, after all, a selection from original sources too numerous to be compiled into any one book. The book perhaps might never have come into existence if the editor had attempted to provide analysis in addition to the texts. In addition, Leckie has edited another collection of essays on restitution titled Returning Home: Housing and Property Restitution Rights of Refugees and Internally Displaced Persons (Ardsley, NY: Transnational Publishers, 2003) which contains more narrative and context, while maintaining a focus on the legal aspects of restitution. For this reason the books can usefully be read together.

The law of restitution is to be found in numerous components of the international legal regime. Through careful reading of Leckie’s collection, the reader gets a grasp of the law as it has evolved and how the sources for restitution standards, found in five specific bodies of international law, namely: international humanitarian law, international human rights law, international criminal law, international refugee law, and the international law of state responsibility, overlap. Some of the most recent developments are the clearest and strongest articulations of the right to restitution, such as the Pinheiro Principles and the Basic Principles and Guidelines to the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, both of which were adopted in 2005.

Sources from international humanitarian law include the Hague Convention and the Geneva Conventions and related Protocols. These sources are particularly useful to the Palestinian case because they date back to 1907 and 1949 respectively (1977 for the Protocols), both preceding and roughly contemporaneous to the expulsion of the Palestinian refugees, refusal to readmit and the subsequent confiscation/destruction of their property by the Israeli legal regime. Under the Hague Convention, the following is prohibited in Article 23(g): “To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.” Under the Geneva Conventions, the following is designated a “grave breach” in Article 147: “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

While the violation of international law is spelled out clearly in these instruments, the remedy of restitution is not stated explicitly. We need to shift gears to the Permanent International Court of Justice, to the notable decision in 1928 known as The Factory at Chórzow (Indemnity) Case, to find an early and clear enunciation of restitution as a remedy for a violation of international law. The case contains this famous language:

The essential principle contained in the actual notion of an illegal act – a principal which seems to be established by international practice and in particular by the decisions of arbitral tribunals – is that reparation must, as far as possible, wipe-out all consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, for damages for loss sustained which would not be covered by restitution in kind or payment in place of it – such are the principles which should serve to determine the amount of compensation due for an act contrary to international law. (emphasis added)

The court clearly prioritizes restitution in kind as the primary remedy for an illegal act, and lists compensation only as a secondary remedy, when restitution in kind is not possible or when restitution would not fully remedy the illegal act.

The right of restitution is also apparent in international human rights law regarding property and housing rights. The Universal Declaration of Human Rights, adopted by the UN General Assembly on 10 December 1948, clearly states in Article 17: “(1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property.”

The International Convention on the Elimination of All Forms of Racial Discrimination, adopted on 21 December 1965 and entered into force on 4 January 1969 (ratified by Israel on 3 January 1979), states in Article 5: “States Parties undertake to prohibit and eliminate racial discrimination in all of its forms and to guarantee the right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: … (e) in particular… (iii) the right to housing.” The International Covenant on Economic, Social and Cultural Rights (“ICESCR”), adopted on 16 December 1966 and entered into force on 23 March 1876 (ratified by Israel on 3 October 1991), states in Article 2(2):

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 11(1) contains the famous right to housing:

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right….

The International Covenant on Civil and Political Rights, adopted on 16 December 1966 and entered into force on 23 March 1976 (ratified by Israel on 3 October 1991), contains a non-discrimination clause similar to the ICESCR in Article 2(1):

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 17(1) contains a non-interference clause: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.” The Convention on the Rights of the Child, adopted on 20 November 1989 and entered into force on 2 September 1990 (ratified by Israel on 3 October 1991), and Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, adopted on 27 June 1989 and entered into force on 5 September 1991, are also listed as sources for standards on restitution.

Leckie includes extensive excerpts from the Rome Statute of the International Criminal Court, adopted on 17 July 1998 and entered into force on 1 July 2002 (signed by Israel on 31 December 2000 but not ratified), as relevant to the law of restitution. Article 8 of the Rome Statute defines War Crimes, of which there are many, most of which were previously designated as “grave breaches” by the Geneva Conventions of 12 August 1949. Article 8(xiii) lists the following war crime: “Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war.” Article 75(1), titled Reparations to Victims, specifically mentions restitution as one of the remedies the International Criminal Court should administer: “The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.”

The international refugee law sources for restitution are rather weak. Leckie includes excerpts from the Convention Relating to the Status of Refugees (1951) and the Protocol Relating to the Status of Refugees (1967) but the connection of these excerpts to the development of standards on restitution seems a bit tenuous.

The international law on state responsibility, on the other hand, contains a very clear articulation of the right of restitution in international law. Specifically Article 35 of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), titled Restitution:

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.

In 2005, the UN Sub-Commission on Protection and Promotion of Human Rights adopted the ‘Pinheiro’ Principles on Housing and Property Restitution for Refugees and Displaced Persons. These principles are presented in their entirety in Leckie’s collection, and they represent the most advanced and articulate presentation of the rights of refugees and displaced persons to restitution to be found in international law sources. Article 2, titled The Right to Housing and Property Restitution, states the right clearly and succinctly:

2.1 All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore as determined by an independent impartial tribunal.

2.2 States shall demonstrably prioritize the right to restitution as the preferred remedy to displacement and as a key element of restorative justice. The right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor non-return of refugees and displaced persons entitled to housing, land and property restitution.

Article 10 of the Pinheiro Principles, entitled The Right to Voluntary Return in Safety and Dignity, contains a further articulation of the right to return – a right closely related to the right to restitution yet distinct from it:

10.1 All refugees and displaced persons have the right to voluntarily return to their former homes, lands or places of habitual residence, in safety and dignity. Voluntary return in safety and dignity must be based on a free, informed, individual choice. Refugees and displaced persons should be provided with complete, objective, up to date, and accurate information, including on physical, material and legal safety issues in countries or places of origin.

10.2 States shall allow refugees and displaced persons who wish to return voluntarily to their former homes, lands or places of habitual residence to do so. This right cannot be abridged under conditions of state succession, nor can it be subject to arbitrary or unlawful time limitations.

10.3 Refugees and displaced persons shall not be forced, or otherwise coerced, either directly or indirectly, to return to their former homes, land or places of habitual residence. Refugees and displaced persons should be able to effectively pursue durable solutions to displacement other than return, if they so wish, without prejudicing their right to the restitution of their housing, land and property.

Accordingly to the Pinheiro Principles, the right to restitution exists independently of the right of return. Even if refugees voluntarily choose not to return, they still have the right to have restituted to them ownership and possession of property and land of which they were unlawfully deprived. This has enormous implications for the Palestinian refugees, since so much property and land was unlawfully confiscated from them following Israel’s refusal to readmit them since 1948.

The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations were adopted by the UN General Assembly on 16 December 2005. They contain a very clear articulation of the right of restitution. Article 19 states 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.

Leckie’s book continues the section on international law sources for housing and property restitution standards by listing international peace agreements, voluntary repatriation agreements and materials emanating from the UN High Commissioner for Refugees, the UN Security Council, the UN General Assembly, the UN Sub-Commission on the Protection and Promotion of Human Rights, UN human rights treaty bodies, and additional standards.

The second section of the book covers regional housing and property restitution standards. Four geographic regions are covered: Africa, the Americas, Europe and the Middle East. Three documents are presented in the Middle East section: the Cairo Declaration on Human Rights in Islam (1990), the Declaration on the Protection of Refugees and Displaced Persons in the Arab World (1992), and the Arab Charter on Human Rights (1994).

The third section of the book contains national housing and property restitution standards. The countries covered include: Afghanistan, Albania, Armenia, Azerbaijan, Bosnia-Herzegovina, Bulgaria, Columbia, Estonia, Georgia, Germany, Iraq, Kosovo, Romania, Rwanda, South Africa and Tajikistan. The subsection on Bosnia-Herzegovina is by far the largest, with 15 laws and regulations presented.

The fourth section of the book covers case law concerning housing and property restitution. The tribunals covered include: the Permanent International Court of Justice, the International Court of Justice, the Human Rights Committee and the European Court of Human Rights. Twenty-four cases are presented from the European Court of Human Rights. Excerpts from the ICJ’s Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) are included, as restitution of Palestinian property and land is explicitly spelled out by the court as a required remedy to Israel’s illegal confiscation.

The fifth section is titled Useful Resources on Housing and Property Restitution. The resources include: general resources, country/regional resources, and useful web sites.

While all of the information is useful and interesting, two of the geographic regions stand out as being particularly important precedents for the Palestinian case, namely the cases of Bosnia-Herzegovina and Cyprus. Bosnia-Herzegovina was the most successful property restitution scheme ever undertaken. The UN High Commissioner for Refugees estimated that by May 2004, approximately one million refugees and displaced persons had returned to their original pre-war homes. The policy goal of return garnered the support of the international community, which became involved in implementing it on the ground. Without such support, the policy would not have succeeded.

The Cyprus case is important because the European Court of Human Rights found that Turkey’s continuing violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) gave the court subject matter jurisdiction over the matter complained of even though the events giving rise to the complaint predated Turkey’s ratification of the Convention. The court applied this doctrine in the case of Loizidou v. Turkey (1996) and subsequent cases involving Turkey. The continuing violation doctrine is an important jurisdictional tool that the European Court of Human Rights has employed in other contexts as well.

Mention should be made of what is not included in the book. The book does not include materials on national laws blocking restitution, of which a notable example would include Israel’s Absentees’ Property Law and other laws used to confiscate Palestinian property. Leckie notes in his Introduction that a book collecting such laws from around the world would be a useful contribution to the field. The book also does not include national case law, consequently, we do not learn much about South Africa’s restitution program, despite that fact that the first post-apartheid parliament enacted the Restitution of Land Rights Act in 1994. South Africa, with its long period of displacement and dispossession and its apartheid history, bears strong resemblances to the Palestinian case.

Not everybody will be able to afford this book. However, it is a good one to ask libraries and NGOs to order as it is an extremely useful contribution to the field of restitution law and one that will set the standard for comprehensiveness for years to come.

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Gail Boling is a U.S.-licensed attorney living in Salt Lake City, Utah.

Gail Boling

Gail Boling

Gail Boling is a U.S.-licensed attorney living in Salt Lake City, Utah, and was Coordinator of Badil's Legal Advocacy unit (2000-2002).