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 7-12 | Slides 13-20

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 7-12


Afghan refugees

4 main movements into Pakistan and Iran:

  1. Following communist-led coups and Soviet occupation (1979-1989)
  2. During Najibullah government vs mujahideen conflict (1989-1992)
  3. During inter-factional fighting and rise of Taliban (1994-2001)
  4. Following coalition intervention/overthrow of Taliban (2001)

Notes

  • The main causes of population movements within and out of Afghanistan include: (i) conflict; (ii) natural disasters; and (iii) economic migration.
  • 4 main conflict-related wavesof displacement can be identified.
    1. Following the communist-led coups and Soviet occupation (1979-1989) (This was
      the largest wave of displacement, and involved 40% of the Afghan population at the time.)
    2.  During conflict between Najibullah government and the mujahideen (1989-1992)
    3.  During inter-factional fighting and rise of Taliban (1994-2001)
    4. Following coalition intervention and overthrow of Taliban (2001)
  • Most Afghan refugees took shelter in Pakistan or Iran. Of the 3 million refugees still in Pakistan and Iran, 50% were born in exile. Of those who were born in Afghanistan, 80% have been in exile for at least 20 years (i.e. they left Afghanistan with the “first wave” of refugees.)

Solutions for Afghan refugees

  • Access to resettlement and local integration extremely limited
  • Focus on return
    • 2nd largest return movement since WWII
  • 5 million returns since 2002
    • 3 million remain in Iran and Pakistan

Notes

  • Although efforts to resolve the Afghan refugee situation have focused on return, attempts are also being made to open up resettlement and local integrationopportunities.
    • For example, Afghanistan is now the number one source country for refugee resettlement to Canada. However, the percentage of refugees who can benefit from this solution is tiny. In 2006, only 1,900 Afghan refugees out of a population of 3 million benefitted from UNHCR-supported resettlement opportunities.
    • Efforts are also being made to encourage Iran and Pakistan to allow some local integration. Pakistan in particular has been extremely reluctant to consider this option, and has set ambitious dates for the closure of the refugee camps, arguing that the refugees’ continued presence represents a security risk.
  • Continuing efforts to promote local integration and resettlement is critical, as there are some refugees with protection needs that cannot be met in Afghanistan. However, it is important to be realistic: Repatriation is the only option open for the vast majority of refugees in the foreseeable future. The critical point is to ensure that the process is safe, dignified and sustainable—progress in achieving these conditions is critical to making return a palatable option, ideally sidestepping the controversy surrounding “involuntary returns”.
  • It is important to recognize the significance of the return movement in relation to the rest of the Afghan population (approximately 26 million). In addition to the 5 million refugees who have returned since 2002, 3 million refugees remain in Pakistan and Iran. Thus, 30% of the Afghan population are either refugees or returnees. The numbers alone show that the resolution of displacement in a sustainable and dignified manner is critical to the durability of peace in Afghanistan.
  • Given the importance of displacement and repatriation to the stability of Afghanistan, it is striking that these challenges do not have a higher profile. For example, the Manley Report’s only comment on the refugee situation was to say that the return of 5 million refugees is a “telling indicator of hope for the future”.
  • While this is true, it is too soon to call the return a success: The conditions facing many returnees are so poor that they may generate fresh grievances. 3 million refugees have not yet been able to return, owing to security concerns, landlessness, and unresolved land disputes. The UN has warned that forcing those who are still in the Pakistani camps to return to Afghanistan before these issues are addressed would represent a major security risk.
  • Return rates to Afghanistan are declining, but are still considerable, globally speaking. Last year, returns to Afghanistan represented 53% of repatriation movements worldwide.
  • In 2008, there have been 120,000 returns to date. The “voluntariness” of these returns is the subject of debate.
  • It can be assumed that return rates will increase in the future as Pakistan continues with camp closures.
  • At the same time as these returns have been taking place, there have also been smaller outflows of refugees, and larger internal displacements.
    • The Internal Displacement Monitoring Centre (IDMC) estimates that there are 161,000 IDPs in Afghanistan.
    • This could be an underestimate, depending on how IDPs are counted. If a refugee family returns and is unable to reclaim their home, or has no land to claim, should they count as internally displaced? They are certainly not benefitting from a durable solution.

Challenges facing returnees

  • Physical insecurity
  • Legal insecurity
  • Socio-economic insecurity
  • Cross-cutting issue: Access to land/land conflict
    • Implications:
      • Violent conflict
      • Rapid urbanization and internal displacement

Notes

  • Insecurity is a pervasive problem for many Afghans. However, displacement may heighten exposureto insecurity. In particular, returnees face:
    • Physical insecurity (Conflict in return areas, threats from local elites or warlords, etc.)
    • Legal insecurity (Returnees unable to avail themselves of functioning justice mechanisms)
    • Socio-economic insecurity (Lack of access to employment, education, health care, shelter, sustenance, etc.)
  • Lack of access to land and conflict over land is a cross-cutting issue that negatively effects returnees’ physical, legal and socio-economic security.
  • Landlessness and land conflict is a major challenge across Afghanistan. There are literally tens of thousands of land disputes across the country. The majority of casesbefore Afghan courts and informal justice bodies pertain to land.
    • For refugees and returnees, the problem is particularly severe because in their long absence, their original homes have often been destroyed, and their lands occupied by other displaced families, powerful commanders or other local elites.
    • Many refugees have been gone so long that they no longer have strong family ties in their areas of origin. If they were to return, they would have nothing to claim, and no where to live.
  • The implicationsof this problem include:
    • Widespread violent conflict at the local level
    • Secondary/internal displacement
    • Rapid urbanization (Returnees move to informal urban settlements not only because they have become accustomed to urban lifestyles in Iran and Pakistan, but also because they often have no where else to go, and risk physical harm if they try to claim the land they occupied before going into exile.)
    • Incentives for insurgency.
  • The negative implications of inadequate access to land and land conflict are likely to increase as return rates escalate in response to the closure of camps in Pakistan.

Sources of land disputes and obstacles to resolution

  • Conflict
  • Regime change and land grabs
  • Unclear ownership
  • Reliance on customary documents and mechanisms
  • Land shortage and landlessness
  • Corruption and lack of rule of law

Notes

  • The causes of conflict and obstacles to resolution are all interlinked.
  • Conflict: 25 years of conflict resulted in widespread displacement, and the occupation and resale of refugees’ properties. At the same time, conflict in the south continues to cause new displacements. Ethnic and tribal tensions are closely linked with land conflict, and competition for the control of resources.
  • Regime changes and land grabs: Successive governments have adopted different land policies, often with the goal of rewarding their supporters through access to land. This has resulted in complex, overlapping claims. Powerful actors have also capitalized on the chaos associated with regime changes to claim vast swaths of land. This has been a particular problem with some of the commanders promoted to positions of official authority through the Bonn process. Dissatisfaction associated with this land-grabbing is particularly severe because the Taliban were seen by many Afghans as even-handed and supportive of poor claimants on the subject of land restitution.
  • Unclear ownership: The land registration system is extremely unorganized. In many parts of the country, it is completely dysfunctional. Many people lack documentation proving their claims. Because land has been bought and sold numerous times, in many cases different people hold documentation indicating their ownership of the same piece of land.
  • Reliance on customary documents and mechanisms: Many transactions are mediated through traditional mechanisms such as shura and jirga, without official court approval. This can result in problems if some claims are mounted formally, and others informally.
  • Land shortage and landlessness: Only 12% of land in Afghanistan is suitable for farming. 45% of land is used as pastureland, but these tenure arrangements are often unclear, and spark dispute. Pressure on land is exacerbated by high birth rates, and rapid refugee returns. Increased poppy cultivation has also heightened the demand for land, and the severity of disputes.
  • Corruption and lack of rule of law: Beyond land-grabbing, the courts and land registration offices cannot be relied upon to resolve disputes fairly, because of widespread corruption as officials try to augment the extremely low salaries they receive for their work. When authorities issue fair decisions, these are often not enforced, as police services remain limited and impunity widespread.
  • Taken in total, these conditions encourage people to rely on violence to settle disputes, which continues the cycle of displacement and grievance.

Legal and political frameworks

  • Bonn Agreement (2001)
  • Afghanistan Compact (2006)
  • Tripartite Agreements
  • National laws and frameworks
    • Plurality of state, religious and customary law
    • 2000 Law on Land Management Affairs
    • 2001 Decree on Dignified Return
    • 2008 Afghanistan National Development Strategy
  • Overall, legal and political frameworks weak
    • Key principles for return: Voluntary, safe and dignified, gradual

Notes

  • While these problems are not unique to Afghanistan, responding to them has been particularly difficult because the relevant legal and political frameworks are comparatively weak. In addition, the international community’s “light footprint” approach means that extensive international support has not been available.
  • Bonn Agreement (2001)
    • Unlike most modern peace agreements, the Bonn Agreement contains no mention of refugees’ right to return. Questions of restitution and land rights are also not addressed.
  • Afghanistan Compact (2006)
    • The Compact states that by the end of 2010, “all refugees opting to return…will be provided assistance for rehabilitation and reintegration in their local communities; their integration will be supported by national development programmes, particularly in key areas of return”. The Compact contains no specific guarantees on the restitution of returnees’ property and the resolution of land disputes, although it states that a “fair system for settlement of land disputes will be in place by end-2007”. Details are not provided on what “fair” entails. The target date has passed without major progress.
  • Tripartite Agreements
    • Tripartite agreements have been signed between UNHCR, the Government of Afghanistan and host states including Iran and Pakistan. These agreements do not appear to provide guidance on the issue of restitution and land access for returnees.
  • National laws and frameworks
    • Land rights in Afghanistan are governed by a number of intersecting legal regimes, including constitutional law, state law, religious law, civil law and customary law. The legal environment is thus extremely complex, but these different systems share some common principles on the assessment of competing land claims. Relevant formal laws and decrees include:
    • 2000 Law on Land Management Affairs
    • 2001 Decree on Dignified Return: This decree was approved by the Afghan Transitional Authority. Article 5 states that “all moveable and immovable property shall be returned to its rightful owner, as determined by the relevant legal organs.”
    • The 2008 Afghan National Development Strategy “supports the rights of all Afghans to return to their homes, repossess property and enjoy all constitutional and human rights.” However, details are not provided on how these rights are to be upheld, and how competing rights will be navigated. The Strategy highlights rural housing programs benefitting returnees, and land allocation schemes, but details are not provided on the ultimate aims of these programs. (e.g. How many people should be able to benefit from these programs, and by when?)
  • Although the frameworks guiding return and the resolution of land conflicts in Afghanistan are weak in terms of detail, they recognize that return must be voluntary, safe, dignified and gradual.