Refugee returns and land conflict in Afghanistan:
Challenges and opportunities
Megan Bradley
Cadieux-Léger Fellow
Policy Research Division
3 June 2008
Slides 1-6 | Slides 7-13 | Slides 14-20
The views expressed in this presentation are solely those of the author, and do not reflect the positions and policies of the Department of Foreign Affairs and International Trade Canada.
Slides 1-6
- Outline
- Durable solutions
- Reparations for refugees
- Return and redress in Bosnia
- Return and redress in Bosnia
- Return and redress: New norms
Outline
- Context
- Global trends: Repatriation and redress
- Resolving displacement: Afghanistan
- Returns and land conflict in Afghanistan
- Sources of conflict, obstacles to resolution
- Formal and informal approaches
- Moving forward
- Lessons from international experience
- Importance of incremental approach drawing on informal mechanisms
Notes
- Main argumentstrong>: Access to land and land conflict represent a major source of violent conflictin Afghanistan today, which undermines the sustainability of refugee repatriation, and the broader peacebuilding process.
- While Afghanistan faces numerous pressing challenges, this is an issue that merits greater attentionfrom both the Afghan government and its international supporters.
- Lessons from international experience indicate that in moving forward, we need to adopt a concerted but incremental approachthat draws on the resources of Afghanistan’s traditional justice mechanisms, while strengthening the ability of the formal systemto resolve those claims that can’t be addressed satisfactorily through informal channels.
Durable solutions
- Local integration
- Resettlement
- Voluntary return in safety and dignity
- The “preferred solution”?
- 6 million refugees returned since 2001 (27 large-scale return operations)
- Return critical to peace / peace critical to return
Notes
- According to UNCHR, there are 10 million refugeesin the world today, and 26 million internally displaced persons(IDPs). 80%of refugees remain in the developing world.
- Traditionally, the international refugee system supports three “durable solutions”to displacement: Local integration, resettlement and repatriation.
- During the Cold War, the international refugee system largely focused on large-scale resettlement, as western countries used the resettlement of refugees from Communist struggles as a political slight against the Eastern bloc.
- After the Cold War, the political impetus for resettlement waned, as did international support for developing countries providing local integration opportunities to refugees.
- Return emerged as the so-called “preferred solution” to displacement. Under international law, return must take place voluntarily, and in “conditions of safety and dignity”.
- There have been 6 million returns since 2001, in the context of 27 large-scale operations.
- Return is the major “solution” for refugees from Afghanistan. One out of every tworefugees who repatriated between 1997 and 2006 returned to Afghanistan. More than 5 millionrefugees have returned to Afghanistan since 2002, making this the 2nd-largestrepatriation movement since WWII.
- In many cases, including in Afghanistan, return is motivated by a kind of circular logic: return seen as critical to peace, and peace as critical to return.
Reparations for refugees
- Historically, little accountability for forced migration as a human rights violation
- UN Reparations Principles:
- Restitution
- Compensation
- Satisfaction
- Rehabilitation
- Guarantees of non-repetition
Notes
- Historically, there has been very little accountability for forced migration as a human rights violation.
- However, since the end of the Cold War, we have seen the emergence of new norms and principles in the international system on the provision of redress for refugees.
- This is part of the broader push towards accountability for human rights violations in the international system, but is also linked to donor and host states’ determination to promote return as the “preferred” solution to displacement.
- In many cases reparations (particularly the restitution of refugees’ homes and lands) are seen as essential to making return a viable solution to displacement.
- The goal of reparations is to rectify or remedy a crime or human rights violation.
- The UN Reparations Principles (2005) use “reparations” as an umbrella term for 5 main types of redress: restitution (return of lost property, etc.); compensation (financial); satisfaction (including trials, truth commissions, apologies, etc.); rehabilitation; and guarantees of non-repetition.
- Redress is not just a legal concept, but is also a deeply rooted political, cultural and religious notion.
Return and redress in Bosnia
“All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived…and to be compensated for any property which cannot be restored to them.” –Dayton Agreement, Annex 7
Notes
- The Bosnian peace process played a critical role in drawing international attention to the question of refugees’ right to restitution and compensation.
- Over half of the Bosnian population was displaced during the country’s civil war. Signed in 1995, the Dayton Agreement was the first peace agreement to include extensive, detailed provisions on refugees’ right to return to and reclaim their original homes. (It is ironic that leaders later charged with war crimes signed into effect major advances for refugee rights.)
Return and redress in Bosnia
- Restitution key to return
- Supported transition from Communism
- Major international investment and support
- Commission for Real Property Claims (CRPC)
- Property Law Implementation Plan
- 93% of displaced persons regained lost property
- A new standard for return?
Notes
- Bosnia’s restitution process received major international support because it was seen as critical to return, which international actors viewed as the key to “undoing” ethnic cleansingin Bosnia and ensuring the departure of refugees from reluctant European host states.
- Restitution was also critical to Bosnia’s transition out of Communism—the restitution process and the overhaul of national property laws solidified the framework for capitalism and foreign investment.
- International support included:
- The deployment of hundreds of international representatives to support the return and restitution process (through UNHCR, OSCE, etc.);
- The creation of a specific commission dedicated to resolving property claims (CRPC); and
- The creation of a national Property Law Implementation Plan which engaged Bosnian officials on all sides in the restitution process.
- Despite significant struggles, restitution was seen as a major 215,000 claims were filed, 93% of which were adjudicated and enforced in favour of displaced claimants.
- Refugee advocates have argued that the Bosnian experience set a new standard for return—the right to return is not simply the refugee’s right to go back to her country, but to reclaim her original home.
- The provisions on restitution and return in the Dayton Agreement have been mimicked in many subsequent peace agreements.
- However, it is important to recognize that one of the main lessons from the Bosnian case was that restitution alone is not enough to enable refugees to return to their original homes. Because of the persistence of ethnic divides and physical and economic insecurity, many refugees who benefitted from the restitution process did not actually return to their original homes or land, if this meant that they would have to live as a minority alongside members of other ethnic groups. Instead, they sold their properties and used the money to resettle elsewhere in Bosnia, where they could live as part of a majority group.
Return and redress: New norms
- 100s of provisions in UN resolutions, peace treaties, national laws
- New institutions to uphold right to restitution
- UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (2005)
- Implications for Afghanistan?
Notes
- For better or for worse, the Bosnian case has become a touchstone for advocates and policymakers concerned with issues of restitution, land conflict and return.
- Post-Dayton, hundreds of provisionson refugees’ right to return to and reclaim their homes have been included in UN resolutions, peace treaties and national laws.
- Dozens of specialized institutions have been created to adjudicate refugees’ land claims in locations including South Africa, Kosovo, Sudan, Georgia, and Iraq.
- In 2005, a UN human rights body passed the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons. The document is known as the Pinheiro Principles, after Paolo Sergio Pinheiro, who served as Special Rapporteur on Restitution for Refugees and Displaced Persons.
- The Pinheiro Principles are the first consolidated international standard on managing post-conflict housing, land and property issues.
- The Principles advance a very interpretation of refugees’ right to restitution, stating that “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”. The Principles argue that states must “demonstrably prioritize the right to restitution as the preferred remedy for displacement”.
- The complexity of the displacement and repatriation processes in Afghanistan mean that these principles are proving extremely difficult to actualize.
