HOUSING, LAND, PROPERTY AND CONFLICT MANAGEMENT ... › ... › uploads › publications › housing_land__pr… · 2 • Housing, Land, Property and Conflict Management II. Broadening

HOUSING, LAND, PROPERTY ANDCONFLICT MANAGEMENT:IDENTIFYING POLICY OPTIONS FORRULE OF LAW PROGRAMMINGAGNÈS HURWITZ, KAYSIE STUDDARD and RHODRI WILLIAMS

The Security-Development Nexus ProgramREPORT POLICY REPORT • OCTOBER 2005

The full report can be accessed online at:www.ipacademy.org/Programs/Research/ProgReseSecDev_Pub.htm

International Peace Academy

www.ipacademy.org/Programs/Research/ProgReseSecDev_Pub.htm


The International Peace Academy is an independent, international institution dedicated topromoting the prevention and settlement of armed conflicts between and within states throughpolicy research and development.

The Security-Development Nexus ProgramIPA's Security-Development Nexus Program aims to contribute to a better understanding of thelinkages between the various dimensions of violent conflicts in the contemporary era and the needfor multi-dimensional strategies in conflict management. Through its research projects, conferencesand publications, the program seeks to make concrete recommendations to the United Nations systemand the broader international community for more effective strategies, policies and programs inachieving sustainable peace and development.

AcknowledgementsThe IPA Security-Development Nexus Program gratefully acknowledges support from the RockefellerFoundation and the Governments of Australia, Belgium, Canada, Germany, Luxembourg, Norway, andthe United Kingdom (DfID). This IPA program also benefits from core support to IPA from theGovernments of Denmark, Sweden and Switzerland, as well as the Ford Foundation and the Williamand Flora Hewlett Foundation.

Executive Summary i

I. Introduction 1

II. Broadening the Understanding of Housing, Land and Property andtheir Relation to Development and Conflict 2

International Law Developments 2

The Economic Perspective 4

The Anthropological Perspective 5

III. Stages of Intervention: Responding to Disputes over Housing, Landand Property 5

Prospective Reform of HLP Rights as a Conflict Prevention Tool 6

Return and Restitution in Post-Conflict Environments 8

Housing, Land and Property in the Negotiation and Implementationof Peace Agreements 11

Overcoming Corruption and Mismanagement of Housing, Land andProperty 12

IV. Key Insights 14

V. Final Recommendations 17

TABLE OF CONTENTS

The Security-Development Nexus ProgramPOLICY REPORT • OCTOBER 2005REPORT

International Peace Academy • i

• Housing, land and property (HLP) policies should, asfar as possible be addressed in conjunction to ensurethat residential and land rights are dealt with morecomprehensively by domestic and international actors.

• There is increased recognition of the role that HLPdisputes play in causing or contributing to intra-stateconflict. Similarly, tensions over HLP inhibit localproductivity and discourage private investment, thushindering the development of vulnerable societies.Where the state is unable or unwilling to address HLPgrievances through effective dispute resolutionmechanisms and guarantees of equitable access,conflict can occur. In the wake of fighting, displace-ment and property confiscation add further layers ofcomplication and grievance, frustrating efforts tonegotiate and implement lasting peace settlements.

• Recent policy research and lessons learned from fieldpractice have converged on the need to consistentlyaddress HLP disputes in order to achieve both securityand development goals. Opportunities to developsound HLP policies arise in a number of settings. Indevelopment scenarios, carefully tailored measures torecognize customary land rights and devolve landadministration can greatly enhance security oftenure, particularly during stressful periods ofeconomic change. Where land relations are charac-terized by discrimination or inequity, redistributivemeasures can not only defuse political and ethnic

tensions but also lead to more efficient land use. Inpost-conflict settings, measures to redress conflict-related property grievances can facilitate refugeereturn and greatly enhance the prospects of a lastingsettlement.

• While it is increasingly clear that HLP conflicts inmany instances threaten development and security,investments in capacity to assess such problems andrespond effectively still lag behind. Housing, land andproperty do not receive systematic attention in theplanning and implementation of internationaldevelopment and peacebuilding programs, especiallywithin the United Nations system. Addressing theissue would require greater institutional commitment,including the building of capacities to plan for HLPcontingencies in development and post-conflictsettings, and the allocation of appropriate resources.

• HLP issues should be clearly acknowledged as a corefocus of rule of law programs and tackled systemati-cally and effectively in order to break cycles of conflictand provide better conditions for social and economicdevelopment. While concerns persist that well-intentioned intervention in highly technical andcontext-sensitive HLP disputes can do as much harmas good, failure to invest in informed and effectiveapproaches risks leaving the international communitygrappling with the symptoms rather than the causesof violent intra-state conflict.

Executive Summary

I. Introduction

Internal violent conflicts constitute serious threats tocollective security and development, as most recentlyemphasized in the December 2004 Report of the UNHigh-level Panel on Threats, Challenges and Change.1

In many contemporary settings, persistent underde-velopment jeopardizes long-lasting peace byaggravating latent conflicts between competingsegments of society. Where such tensions erupt intoviolence, the resulting lack of security constitutes asignificant obstacle to future development. Recentacademic and policy research has concluded thatattempts to address the causes of intra-state conflictrequire a better understanding of the critical nexusbetween security and development.2

Issues surrounding housing, land and property (HLP)provide a prime example of this nexus at work.Widespread housing, land and property disputes notonly hamper investment and socio-economicdevelopment; if not adequately addressed, they alsohave the potential to degenerate into violent conflict.Where states do not have the capacity to adjudicateand enforce HLP rights, corruption, opportunism andviolent competition can ensue. Conversely, wherestates define and enforce property rights in apredatory or inequitable manner, property disputescan fuel broader political or ethnic tensions. In eithercase, the risk of intra-state conflict may be exacer-bated, undermining both development goals andbasic security needs. In the wake of conflict,displacement and property confiscation add furtherlayers of confusion and grievances, frustrating effortsto negotiate and implement lasting peace settle-ments.

This report stems from and expands on an IPAExperts' Workshop on Land, Property and ConflictManagement, held in December 2004 in New Yorkand organized by the rule of law project within theSecurity-Development Nexus Program.3 As high-lighted in the UN Secretary-General's Report on therule of law and transitional justice in conflict andpost-conflict societies, issues surrounding thetransparent, equitable and efficient implementationof rights to housing, land and property have repeat-edly come to the fore as key rule of law concerns.4

Against this backdrop, the Experts' Workshopbrought together scholars, policy-makers and practi-tioners from diverse disciplinary backgrounds to:

a. discuss the importance of housing, land and pro-perty disputes as they relate to violent conflict;

b. contribute to a better understanding of thenature of housing, land and property disputes andof their impact on past and potential conflict; and

c. identify a set of policy recommendations andoperational tools that are available to ensure thepeaceful settlement of housing, land andproperty disputes, and the establishment oflegally secure property regimes.

This paper reviews discussions that took place at theexperts' workshop and builds on them to reflect expertdialogue with key actors working in or around the areaof HLP, with a view to contributing to the progressiveintegration of research findings and field practice intopolicy relevant recommendations. It also examinesboth multi-disciplinary approaches to HLP issues andtheir application in various contexts, highlightinginsights of relevance to the development of conflict-sensitive housing, land and property policies.

International Peace Academy • 1

1 United Nations, A more secure world: Our shared responsibility - Report of the High-level Panel on Threats, Challenges and Change,December 2004.2 Agnès Hurwitz and Gordon Peake, Strengthening the Security-Development Nexus: Assessing International Policy and Practice Since the1990s, IPA Conference Report, April 2004.3 To access the concept paper, conference agenda and list of participants, go to http://www.ipacademy.org/Programs/Programs.htm.4 UN Doc. S/2004/616, 3 August 2004.

2 • Housing, Land, Property and Conflict Management

II. Broadening the Understanding of Housing,Land and Property and Their Relation toDevelopment and Conflict

Virtually every violent intra-state conflict in recentmemory, from Cyprus to Darfur, has involvedunderlying disputes over housing, land or property.Indeed, such disputes aggravate numerous conflicts inthe developing world, and impede sustainabledevelopment and economic growth.

Causes of HLP disputes range from increaseddemographic pressure, resource scarcity, agriculturaltransformation, and the exploitation of valuablenatural resources, to tenure insecurity, inequalities in(re)distribution (in particular along ethnic, religious orother cleavages) or intergenerational tensions overownership and use. HLP issues are also used as a proxyto advance other agendas, or by political entrepre-neurs seeking economic advantages over othersegments of society. Another common scenario occurswhen disputes result from discriminatory policiesassociated with a former regime. If not addressed,such disputes carry the potential for further conflict,such as in South Africa, Zimbabwe or Namibia.

Housing, land and property disputes are also prevalentin post-conflict settings, characterized by large-scaledisplacement, abandoned land and property, illegaloccupation, overlapping claims, reduced housingstock, lack of documentary evidence, and genderdiscrimination in access to land and property assets.Such attributes predictably create the potential forsocial conflict and renewed violence. In manysituations, multiple layers of property or land contes-tation exist, making a resolution of the situationparticularly complex.

In spite of the obvious significance of housing, landand property for conflict management, these issues

have not received systematic attention as part ofplanning and implementing security and develop-ment-related programs. A commonly cited reason istheir highly context-specific and technically compli-cated nature. While HLP programs are indeedcontext-specific and require technical expertise, theissues themselves are deeply political, and experienceshows that failure to address them or well-intentioned but inadequate international programscan exacerbate tensions and jeopardize the long-termviability of many efforts to foster security anddevelopment.

Recent policy research and legal developments haveled to the identification of general principles andpractical guidelines applicable to a variety of settingsin which HLP disputes are likely to be salient. Movestoward the adoption of these principles by the UnitedNations, the World Bank and other developmentagencies indicate that these questions should beconsidered more carefully by international actors.5

The opening panel discussed these issues, focusing onthree key disciplinary perspectives. While develop-ments in the field of international law have focusedon the rights to adequate housing and the right torestitution, development economists have highlightedthe importance of land as a factor in both conflictprevention and economic development. Finally,anthropological scholarship has examined themultifunctional nature of property systems and theirsignificance in non-Western societies.

International Law Developments

The emergence of violent internal conflicts as a matterof international concern has led to the elaboration ofimportant principles in international human rights andhumanitarian law. Three main sources of HLP-relatedrights exist in international law and have receivedincreasing endorsement and recognition.

5 Nicolas Pons-Vignon & Henri-Bernard Solignac Lecomte, Land, Violent Conflict and Development, OECD Development Centre WorkingPaper No. 23, 2004; USAID Office of Conflict Management and Mitigation, Land & Conflict: A Toolkit for Intervention, 2004.


In terms of socio-economic rights, many importantlegal developments have built upon the well-established right to adequate housing, which providessignificant legal recourse to residents including non-owners.6 The right to adequate housing is nowunderstood to provide a broad array of housing-related protections, and importantly, a ban onarbitrary forced evictions. Because of the importanceof recognizing such “residential” rights alongsidetraditional “ownership” rights to land and property,inclusive terminology referring to “housing, land andproperty” has been proposed by human rightsadvocates. The failure to explicitly address residentialrights would indeed exclude up to two billion peopleworldwide who are neither owners nor formal tenantsof their homes.7 A number of other rights in the civiland political realm are also commonly invoked tosupport housing and property restitution, includingthe right to privacy and inviolability of the home, theright to freedom of movement and the right to privateproperty.8

International humanitarian and refugee law havesimilarly contributed to the emergence of HLP-relevant rights. Intra-state conflict is oftencharacterized by the systematic violation of the HLPrights of civilian populations, including individual ormass forcible transfers and deportations, or forced

movement of civilians and other forms of forceddisplacement.9 Mass forced evictions are oftenfollowed by the destruction or reallocation of victims'homes with the goal of making their displacementpermanent. These tactics have been condemned asviolations of human rights and humanitarian law bythe international community in numerous instances.The right to return has also reinforced legalarguments for restitution claims.10 Originally framedas a right to return to one's country, the right toreturn, which is reaffirmed in many internationalhuman rights and refugee law instruments, hasrecently been reformulated as an individual right toreturn to one's home.11 The provisions of the DaytonAgreements (Annex 7) and the implementation ofproperty restitution policies in the Balkans haveprovided strong support for this progressive interpre-tation.12

Finally, international human rights law has for longrecognized the existence of a right to an effectiveremedy against human rights violations.13 Thus, whileit might be too early to affirm the existence of a self-standing right to restitution, this principle, whicharises from the standards listed above, is slowlyemerging as a crucial principle in post-conflictsettings.14 The UN Security Council has confirmed theimportance of restitution rights in its resolutions on

6 The right to adequate housing is protected under Article 25 of the Universal Declaration of Human Rights (UDHR) and Article 11 of theInternational Covenant on Economic, Social and Cultural Rights (ICESCR).7 See presentation by Scott Leckie, IPA Workshop on Land, Property and Conflict Management: Identifying Policy Options for Rule of LawProgramming, 2-3 December 2004.8 See art.12 and 17 of the International Covenant on Civil and Political Rights (ICCPR) and art. 17 of the Universal Declaration of HumanRights (UDHR); those rights are listed in the Principles on Housing and Property Restitution for Refugees and Displaced Persons, Final Reportof the Special Rapporteur, Paulo Siergo Pinheiro, submitted in accordance with Sub-Commission Resolution 2004/2, UN Doc.E/CN.4/Sub.2/2005/17, 28 June 2005, paras. 6-7 and 9.9 Art. 49 of the 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War; art.17 of the 1977 Geneva ProtocolII Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts.10 Art. 12 ICCPR, art.13.2 UDHR. See for example UNHCR Executive Committee Conclusion No.101 (LV) of 2004 on Legal Safety Issues inthe Context of Voluntary Repatriation of Refugees para. h) and i).11 See Commentary on the Draft Principles on Housing and Property Restitution for Refugees and Displaced Persons, UN Doc.E/CN.4/Sub.2/2004/22/Add.1, p.7 para.27; UNGA Res. 35/124 on international intervention to avert new flows of refugees, 11 December 1980.12 Marcus Cox and Madeline Garlick, “Musical Chairs: Property Repossession and Return Strategies in Bosnia and Herzegovina,” in ScottLeckie (ed.), Returning Home: Housing and Property Restitution Rights of Refugees and Displaced Persons (Transnational Publ., 2003), p.65, 69.13 Art. 8 UDHR, art.2.3 ICCPR.14 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights


Kosovo, Georgia, Croatia and Cyprus. Several repatri-ation agreements have also included this principle.15

Restitution of property has generally been favoredover compensation, not least because it creates thepreconditions for refugees and displaced people toexercise the right to return to their homes of origin.

Despite increasingly strict legal standards, theapproaches of recent UN missions and transitionaladministrations on HLP-related questions has beenad hoc if not inconsistent. The success of the UNMission in Kosovo in resolving property disputes, forinstance, has been contrasted with decisions by theUN in East Timor and Cambodia to disregard calls forrestitution. However, promising discussions havebegun among UN agencies and non-governmentalorganizations (NGOs) with a view to promotingconsistent and effective approaches in the field.16 Inaddition, principles on housing and property restitu-tion for refugees and other displaced persons werevery recently adopted by the Sub-Commission on thePromotion and Protection of Human Rights.17

The Economic Perspective

From an economic perspective, the most importantfactor in productive HLP relations is “security oftenure,” or the definition of publicly guaranteed andenforceable relationships between specific individ-uals or groups and the particular properties they ownor use. Tenure security encourages long-term invest-ment in the productivity of land and may be aprecondition for sustained development. Basic tenure

security can be provided through informal means.Some degree of formalization through “titling,” orregistration of land rights, is generally thought to berequired in order to allow land to be used as collat-eral for credit, facilitating the development offinancial markets. Tenure security also allows forfreer transactions, fostering efficient use andenhanced access to land and property.

Economists recognize that these policies may not besufficient to redress inequitable access to housing,land and property, nor to tackle HLP-related conflicts.The persistence of severe inequalities in housing, landand property distribution in many countries is anenduring concern. While such inequalities may haveserious economic and political consequences, morerecent patterns of conflict have threatened to deraildevelopment even in countries with equitable landaccess.18 These conflicts tend to accompany trendssuch as population growth and agricultural transfor-mations that drive up the value of land. The ability tocalibrate reforms so as to encourage efficient landmarkets while affordably maintaining tenure securitywill often determine whether a virtuous cycle ofdevelopment or a vicious cycle will ensue.

Recent economic scholarship points to three keypolicy implications. First, efforts to provide tenuresecurity should actively facilitate access to marketsand expand equality of opportunity rather thanpassively record titles. In other words, where distri-bution is historically skewed, focusing solely onregistration of existing rights may reinforce

Law and Serious Violations of International Humanitarian Law, UN Doc. E/CN.4/RES/2005/35, 20 April 2005. The specific right to propertyrestitution was then stipulated in CERD's General Recommendation No.22: Article 5 and Refugees and Displaced Persons, UN Doc. 24/08/96.15 Scott Leckie, “New Directions in Housing and Property Restitution,” in Returning Home: Housing and Property Restitution Rights ofRefugees and Displaced Persons, p.3, 12.16 UN Habitat and UN High Commissioner for Refugees, Summary Conclusions, Housing, Land and Property Rights in Post-Conflict Societies:Proposals for Their Integration into UN Policy and Operational Frameworks, Expert Meeting, November 2004.17 Housing and property restitution in the context of the return of refugees and internally displaced persons: Final report of the SpecialRapporteur, Paulo Sérgio Pinheiro, U.N. Doc. E/CN.4/Sub.2/2005/17, 28 June 2005; see also Commission Decision on Housing and propertyrestitution in the context of refugees and other displaced persons, UN Doc. E/CN.4/DEC/2003/109, 25 April 2003.18 Klaus Deininger and Raffaela Castagnini, Incidence and impact of land conflict in Uganda, World Bank Policy Research Working PaperNo. 3248, March 2004.


inequities. In such cases, supplementing registrationwith redistributive measures can foster greatereconomic growth as well as political reconciliation.Second, HLP issues should be incorporated intonational development strategies. Building HLP issuesinto broader institutional reforms, such as decentral-ization, can both produce better substantiveoutcomes and facilitate awareness and mutualunderstanding among diverse stakeholders. Third, thehigh level of corruption and inefficiency in the HLPsector in many development settings highlights theurgency of using HLP reform as a catalyst for institu-tional change. Greater inclusion of the private sectorand civil society can ensure that inefficiency isreduced and the provision of HLP-related services isimproved.

Finally, the field of development economics has alsorecognized the crucial role of HLP-related rights andpolicy in conflict management. This recognition isperhaps best represented by the World Bank's recentpublication of its first comprehensive overview of landpolicies and development since 1975.19 This documentreflects a significant degree of consensus in theeconomic field and the broader developmentcommunity regarding the linkages between land,development and conflict.

The Anthropological Perspective

A third disciplinary perspective, anthropology, offers anumber of important caveats in reviewing HLP policy.For instance, anthropologists differentiate between“categorical rights,” referring to the general relation-ship between property and rights-holders, and“concretized rights,” referring to the distribution ofwealth and rights within a specific group.20 Thisallows researchers to look behind the apparentexternal unity of categories such as “communal

property” and to discern concrete internal features ofspecific communities with different types of propertyrights held by classes or group members.

A number of other important policy-relevant findingshave emerged from anthropological research onproperty relationships. First, a good deal of caution isnecessary in translating customary property rightsinto formal state law categories. Great progress hasbeen made since colonial policies assimilated custom-arily-held land to state ownership. However,customary laws adapt over time to political andeconomic changes, with attempts to recognize suchnorms in terms of state legal constructs almostinevitably distorting them, and raising risks ofopportunism and corruption. Second, the object ofconflicts over property rights often goes beyond landitself to encompass subsoil, minerals, vegetation,grazing rights and built structures. Finally, propertysystems are multifunctional, carrying importantpolitical, religious and social functions in addition toeconomic significance. As a result, land conflicts maybe interwoven with broader competition for politicaldominance.

III. Stages of Intervention: Responding to Disputesover Housing, Land and Property

HLP are often closely connected to civil conflicts, andcan severely impact pre-conflict and post-conflictcontexts. They may be one of the direct causes of theeruption of violence and may occur where competi-tion over housing, land and property arise betweengroups. Such conflicts may be exacerbated by popula-tion growth, income disparity and social change. HLPpolicies can also, in post-conflict settings, have animportant conflict prevention function, as failure toaddress past grievances related to such issues canbecome a catalyst for renewed hostilities. Restitution

19 Klaus Deininger, Land Policies for Growth and Poverty Reduction, World Bank Policy Research Report, 2003.20 Presentation by Franz von Benda-Beckmann, IPA Workshop on Land, Property and Conflict Management: Identifying Policy Options forRule of Law Programming, 2-3 December 2004.


is an increasingly significant issue in peaceagreements and peacebuilding programs. As displacedpersons and refugees attempt to return to theirhomes and former combatants strive to (re)integrateinto society, issues of control and compensation inlonger-term peacebuilding and within the context ofprotracted conflicts gain special importance.

The workshop focused on instances where HLP policycan have a particularly decisive role in mitigating—orexacerbating—conflict. The ensuing discussionsidentified both general insights regarding therelationship between HLP, conflict and developmentas well as specific principles for improving practice.The first panel explored the ways in which prospectivereforms of HLP could be better utilized for conflictprevention. The next two panels addressed post-conflict settings, focusing on the implementation ofemerging rights related to restitution and the role ofHLP issues in the negotiation and implementation ofpeace agreements. The last panel focused on long-term development and governance issues, andspecifically addressed the relation between customaryproperty systems and state law concepts.

Prospective Reform of HLP Rights as a ConflictPrevention Tool

Given that land is a limited resource, reform ofteninvolves, at least to some degree, a redistribution ofrights. The process of redistribution focuses onmaking land available through voluntary and market-compatible means, and can take the form of shiftsfrom collective to more individualized forms of tenureor affirmative action in favor of traditionally margin-alized groups and in response to discriminatorypractices. These may entail shifting the balance ofpower between the state and the local community,large landowners and individual workers, andprivately acquired and controlled land.

Africa has been witness both to intractable cycles ofland conflict and ambitious reform programsprompted by the legacy of dysfunctional colonialinstitutions and discriminatory regimes. As such,various African case studies evoke the enormousdifficulties of equitable reform and the greater pricepaid for failing to respond to land disputes. They alsounderscore the observations that land conflicts oftenserve as a proxy for broader political struggles andthat land policies should therefore be embedded inbroader institutional reforms.

Côte d'Ivoire provides a recent example of how landdisputes may trigger and exacerbate broader politicaltensions. Despite its important agricultural sector andits standing as the world's largest cocoa producer, acolonial legacy of conflicting laws, customs andpolicies governing land rights has perpetuated tenureinsecurity. This resulted from a longstanding policy ofthe Houphouët-Boigny regime that “the land belongsto the one who farms it,” which encouraged themigration of farmers from the northern regions andfrom neighboring countries who often boughtfarmsteads despite a customary prohibition onalienation of land. When reform came in the form ofa national land law in 1998, less than two percent ofCôte d'Ivoire's land was formally registered and noclear legal mechanism for resolving land disputesexisted. The 1998 Ivorian land law set out to redressthis deficiency by providing tenure security throughthe transformation of customary-use rights intoregistered ownership rights. However, the law alsoprovided that titles acquired before 1998 could not bepassed to non-Ivorian heirs. Taken together with abroader political dispute over the definition of“autochthonous Ivorian” and citizenship rights, thisprovision effectively excluded rural migrants from theland law's benefits. This ultimately exacerbated apolitical struggle that erupted into armed conflict in2002 and remains highly volatile today.21

21 See International Crisis Group, Côte d'Ivoire: No Peace in Sight, Africa Report No.82, July 2004.


If Côte d'Ivoire illustrates how land reform may beexploited for political advantages, the fate of the Kivuregion—the North and South Kivu provinces in easternDemocratic Republic of Congo (DRC)—shows thatthere is a cost for failing to address land issuesunderlying conflict. The Kivu was shaped by a colonialpolicy of arbitrarily decreed ethnic homelands entirelyincongruous with the history of fluid and heteroge-neous ethnic identities in the region. As a result,power and political participation tended to bereserved to local “autochthonous” groups, to theexclusion of significant and even majority “non-autochthonous” populations. Beginning in the 1970s,the intensification of cattle production in the regionencouraged ethnic paramount chiefs to acquire largeranches largely through theft and corruption.Resentment fueled ethnic warfare in the 1990s,during which time ranch land was reclaimed in“unregulated, problematic restitution” by previouscustomary owners of the land. Current national peacenegotiations present an opportunity to directlyaddress both land grievances and ethnic autocracy,for instance by systematically distributing confiscatedranchlands to long-term residents who have beentraditionally excluded. Yet, the failure of the parties toaddress these issues is seen by many observers as avirtual guarantee of further cyclical conflict in theregion.22

Southern Africa presents a different situation, whereland rights often are well defined but unequally distrib-uted. Past dispossession of land has led to what hasbeen described as “agrarian dualism,” whereby large-scale white-owned commercial farms sit alongsideintensely overcrowded black settlements surviving on

subsistence agriculture. In contemplating reform, thesecountries still face a dilemma. On the one hand, globaleconomic pressures argue for maintaining the produc-tive large-scale commercial farming sector. On theother hand, revitalized political movementsrepresenting the rural poor have demanded redistribu-tive land reform, threatening to occupy white-ownedcommercial farms.23 Policy responses to this dilemmarepresent a wide spectrum of conventional land reformmeasures. For instance, post-apartheid South Africa isengaged in three major reform efforts: tenure reform,or extension of legal tenure security to de factoproperty interests; redistribution measures to assistdisadvantaged groups in equitably accessing land; andrestitution measures to provide claimants dispossessedof their property under racially discriminatory lawswith the opportunity to claim their property back orreceive compensation.24 Post-independence landreforms in neighboring Zimbabwe and Namibia haveprimarily focused on general redistribution of land fromwhite to black farmers.

In all three cases, the primary goal of land reform hasbeen to rectify former discriminatory policies thataffected the distribution of land. However, in order tomaintain political consensus, all three countriesinitially based land reforms on the principle of “willingbuyer–willing seller.” This principle implied thattransfers of land to redistribution beneficiaries andrestitution claimants would, in principle, be based onvoluntary state purchase rather than on expropria-tion. Yet, because white farmers have been reluctantto sell and have demanded market compensation,redistribution programs have proven to be both slowand expensive.

22 Presentation by Stephen Jackson, “Land & Conflict in the Kivus, DR Congo,” IPA Workshop on Land, Property and Conflict Management:Identifying Policy Options for Rule of Law Programming, 2-3 December 2004.23 International Crisis Group, Blood and Soil: Land, Politics and Conflict Prevention in Zimbabwe and South Africa, Africa Report No. 85, 17September 2004. Presentation by Ruth Hall, “Redistributive Land Reforms in Southern Africa,” IPA Workshop on Land, Property and ConflictManagement: Identifying Policy Options for Rule of Law Programming, 2-3 December 2004.24 Ruth Hall, Peter Jacobs and Edward Lahiff, Evaluating land and agrarian reform in South Africa, Final Report, Program for Land andAgrarian Studies Occasional Paper, September 2003; Ruth Hall, Democracy and Land Reform in Zimbabwe, IPA Workshop Report, February2002.


In Namibia, minimal budgetary funds made availablefor buying land at market rates has meant that only125 farms have been acquired over fifteen years. In theface of popular land hunger, the government hasturned to forcible resettlement as its only recourse.Although compensation has been promised forexpropriated farms, it is not clear if funds are actuallyavailable. As is widely commented in the media, theland question has been most acute in Zimbabwe andhas degenerated into full-blown conflict. An initiallysuccessful redistribution program became debilitated ina wave of politically opportunistic land grabs orches-trated by the government in the 1990s. These grabsserved neither equity goals nor economic efficiency.Unregulated redistribution left those who settledoccupied land with neither title nor tenure security. Asa result, there has been little incentive for efficientfarming to take place, which has contributed to thedramatic economic decline and famine in a countrythat was once a net agricultural exporter.Governmental HLP policies recently reached a newlevel of violence, with the implementation of“Operation Restore Order,” which led to the forcedeviction of over 700,000 “illegal” urban dwellers.25

In South Africa, redistribution measures to facilitatepurchases by traditionally disadvantaged groups haveaffected only about three percent of all land.However, attention has focused on the restitution ofproperty, which entails direct clashes of rights. Whererestitution claimants seek return of their property, thestate is faced with the choice of forcible expropriationor paying whatever price the current owner demands,an option widely seen as a “double subsidy” in light ofthe manner in which land was acquired underapartheid. In response, the authorities have offeredcompensation settlements to claimants, a strategythat has allowed the resolution of most urbanproperty claims without necessitating wholesale

expropriations. However, with a large body of claimsfor rural land yet to be resolved, continued reliance onbuyout of claimants—rather than current owners—would risk undermining the fundamental goal ofrestoring racial equity in land ownership. Thedilemmas facing South Africa are stark but notimpossible to resolve, given its inclusion of landreform as a major policy goal and its politicallyinclusive strategy. Although South African landreform might never be an absolute success in terms ofrestoring racial equity in land ownership, it may stillavert the debilitating effects of outright conflict.

All of the above cases provide ample demonstration ofthe importance of conflict assessment tools in thedesign of housing, land and property policies. Therecently published US Agency for InternationalDevelopment (USAID) toolkit on Land & Conflictprovides a useful checklist of issues to be consideredin this process.26 These include indicators of conflictsuch as increases in illegal occupation or squatting;increases in the number of land and propertydisputes; increased environmental degradation;small-scale violence and property destruction. Timingand sequencing is equally relevant and consists ofdetermining, for instance, the necessity of immediateintervention and the conflict impact of internationalprograms and of their termination. Another importanttask in this process will be mapping existing actorsand stakeholders so as to identify potential reformconstituencies and potential spoilers.

Return and Restitution in Post-ConflictEnvironments

The emergence of the rights of those displaced inconflicts to repossess and return to their homes is, asmentioned above, one of the most important develop-ments on HLP issues in recent peacebuilding efforts.

25 See Press Conference by the UN Special Envoy on Human Settlement Issues in Zimbabwe, 22 July 2005http://www.un.org/News/briefings/docs/2005/tibaijukapc050722.doc.htm.26 USAID, Land & Conflict, A Toolkit for Intervention, 2004, p.13.


However, the proclamation of these rights in legalinstruments does not guarantee their implementationin practice. In spite of the increasingly commonreference to refugee and IDP (internally displacedpersons) return in contemporary peace agreements,restitution processes have often been incomplete,generating additional frustration and grievance forthe victims of involuntary displacement.

This explains the specificity of Bosnia andHerzegovina (BiH), an example of a uniquely completeimplementation of restitution principles. Images ofethnic cleansing associated with the 1992–1995Bosnian conflict horrified the world, resulting in theinclusion of the right of return as a central obligationunder the Dayton Peace Agreement. Before theconflict, property rights were clearly defined in BiH.As a result, wartime ethnic cleansing often took on anadministrative character, with laws and courtspressed to formally reallocate the homes of thoseforced to flee. Many of the two million Bosniansuprooted by the conflict could not return afterwardsbecause others had received permission to use theirproperty. Although the peace agreement foresaw aninternational body to adjudicate property claims, itquickly became apparent that only the Bosnianauthorities themselves had both the legal skills andlocal knowledge necessary to carry out restitution.The international community's role was neverthelesscrucial, with sustained pressure resulting in thepassage and eventual implementation of domesticrestitution laws. The results have been unprece-dented—a restitution process initially thought likelyto take up to four decades was completed in just sixyears, with over 200,000 properties returned to theirpre-war residents.27 Property restitution createdconditions for return, a right that was ultimately

exercised by as many as one million displacedBosnians.

While the BiH case represents a dramatic affirmationof the rights of the displaced, the applicability of thismodel to other post-conflict settings is debatable.First, the conditions were such that clear,longstanding and largely uncontested property rightsexisted prior to the conflict. As a result, the parame-ters of the restitution program—which types ofclaimants could re-claim what properties, based onloss after what date—were relatively straightforward.Second, the international presence was endowed withstrong powers to intervene in domestic politicalprocesses and received sustained political andfinancial support.

Recent peacebuilding efforts in Afghanistandemonstrate the challenges faced by internationalactors in implementing restitution programs in othersettings. After the fall of the Taliban in 2001, Afghanauthorities faced the challenge of facilitating thereturn of approximately four million refugees anddisplaced persons.28 A fundamental problem was thedetermination of the law applicable in a country thathas experienced over twenty years of conflict andwhere land and property relations have beencontested since the creation of the modern Afghanstate in the nineteenth century.29 As a result, noundisputed “starting date” for restitution exists,although waves of conflict-related displacementincreased after the 1979 Soviet invasion. Moreover,restitution would do nothing for the thousands ofrefugees and displaced persons who have always beenhomeless and landless. Even in urban areas whererestitution is an issue, few domestic institutions areable to effectively adjudicate claims, while the

27 Charles Philpott, “Though the Dog is Dead, the Pig Must be Killed: Finishing with Property Restitution to Bosnia-Herzegovina's IDPs andRefugees,” Journal of Refugee Studies, Vol.18 No.1 (2005), p.1.28 In 2004, UNHCR evaluated the refugee population from Afghanistan to be just over 2 million, http://www.unhcr.ch/cgi-bin/texis/vtx/statistics/opendoc.pdf?tbl=STATISTICS&id=42b283744.29 Liz Alden Wiley, Land Rights in Crisis: Restoring Tenure Security in Afghanistan, AREU Issues Paper Series, March 2003, p. 38-39 and23-26.


international community has neither a clear mandatenor the resources to champion the issue.30

Experience in Afghanistan indicates that the develop-ment of land policy and dispute resolutionmechanisms may be more important to stabilizationthere than restitution per se. Gross inequities in rurallandholding, mass landlessness, homelessness anddisputes over grazing land and pastureland havebecome serious threats to the livelihoods of thepredominantly rural citizenry.31 As a result, preventingrenewed conflict over land in a context likeAfghanistan hinges on broader governance efforts,such as local community empowerment and devolu-tion processes, rather than on narrow legal solutions.In a setting characterized by complex if notcompeting legal frameworks, disputed records andweak enforcement mechanisms, the surest way topromote peaceful HLP relations may be to empowerlocal communities and develop accessible disputesettlement mechanisms.

Burundi provides another example of the importanceof conflict analysis as a required component in thedesign and planning of HLP policies. Burundi presentsa toxic cocktail of land scarcity and mass displace-ment. Ninety percent of its people depend onagriculture and the country has one of the highestpopulation densities in the world. As a result ofongoing conflict, one quarter of the population arerefugees or displaced persons, giving rise to restitu-tion claims that go back as far as 1972.32 The 2000Arusha peace accords include wide-ranging provisionson land, based on principles of restitution, access andthe establishment of measures to prevent further landdisputes, such as land registration.33 The provisions ofProtocol IV established a National Commission for the

Rehabilitation of Sinistrés, which comprises a sub-committee that has a specific mandate to deal withissues related to land. However, some consider thatthe focus on mechanisms for resolving individualcases obscures a broader opportunity to promotecollectively negotiated local solutions. Political accessand land relations in Burundi correlate to class as wellas ethnicity, creating the opportunity to resolve localrestitution problems through an inclusive policydialogue process comprising civil society, displacedclaimants, current owners and the government. Thereis, in other words, considerable work still to be doneto ensure that the land issue, which constituted animportant factor in the outbreak of the conflict, doesnot yet again trigger instability and violence in thewake of mass repatriation currently underway.

In sum, while the Bosnian case has provided animportant precedent in affirming the rights of personsdisplaced and dispossessed in the course of ethnicconflict, the relevance of the Bosnian model in othercontexts is limited, inasmuch as it resulted fromhighly specific local conditions and the availability ofconsiderable international resources. This does notmean that the question should be neglected, asoccurred in Afghanistan. Restitution should be animportant component of peace settlements, but itmust be tailored to wider post-conflict considerationsand may therefore have to be sequenced andimplemented differently. In other words, restitution isnot a “stand-alone” concept and should be linkedwith broader HLP policies, such as redistribution,titling or devolution of HLP management. Early identi-fication of destabilizing HLP issues and incorporationof appropriate remedies in peace agreements should,in any case, become a standard component ofinternational post-conflict practice.

30 Liz Alden Wiley, “Land and the Constitution,” AREU Policy Brief, September 2003, p. 1-2.31 Liz Alden Wiley, Rural Land Relations in Conflict: A Way Forward, AREU Briefing Paper, August 2004.32 For a brief historical overview of the conflict, see Mariam Bibi Jaoma, ‘We can’t eat the Constitution’: Transformation and the socio-economic reconstruction of Burundi, Institute for Security Studies Paper No. 106, May 2005, p.2.33 African Centre for Technology Studies, Land, Conflict and Livelihoods in the Great Lakes Region: Testing Policies to the Limit, EcopolicySeries No. 14, December 2004.


Housing, Land and Property in the Negotiationand Implementation of Peace Agreements

A particular challenge is posed by protracted post-conflict settings where decades have elapsed withoutthe arrival of an accepted peace agreement. Inkeeping with the observation that HLP issues oftenreflect broader political struggles, delayed peacenegotiations may hinge on questions of restitutionand refugee return. This pattern may be exacerbatedby several inherent characteristics of land andproperty.

Territorial control is central to the outcome of armedconflicts. Confiscation and reallocation of HLP consti-tute strategic tools at the belligerents' disposal tosecure economic or political holdings. As a result,negotiations involving the allocation and division ofterritory and properties are often framed in zero-sumterms. Even where the right of return is recognized, itis often assumed that individuals will not risk goingback to areas left under “enemy control” in the termsof a peace agreement. Second, the principle that“possession is 99% of the law” complicateslongstanding HLP disputes. With time, subsequentusers develop bona fide legal rights to HLP abandonedduring a conflict that must be reconciled with theclaims of pre-conflict inhabitants. Finally, the contin-uing evolution of legal standards related to HLP rightsleaves room for debate about whether more recentrules apply to older, frozen conflicts. Such legaluncertainties may hold the hidden benefit ofproviding greater flexibility in negotiating creativesolutions to latent conflicts.

Nevertheless, whatever theoretical flexibility exists isoften constrained by maximalist outset positionstaken by negotiating parties. The problem lies in thefact that post-conflict settings are typically charac-

terized by “more tort than can be repaired,” implyingthat the goal of negotiations cannot be to redress allgrievances but merely to ensure even-handed distri-bution of sacrifices on all sides. Both theIsraeli-Palestinian conflict and the continued divisionof Cyprus demonstrate the risk inherent in failure toprepare affected populations for painful but necessarycompromises.

During the outbreak of the current Israeli-Palestinianconflict in 1948, about 750,000 Palestinians weredisplaced from their land.34 Although the Palestinianrefugee population has now risen to five millionpeople, most have adapted to urban lifestyles andwould be unlikely to opt for return to propertyabandoned almost sixty years ago. Thus, the passageof time has drastically increased the number ofpotential claims for restitution and return, but hasalso decreased the likelihood that they would beexercised if an acceptable alternative form of redresswere to be offered.

As a result, although the UN General Assembly wasquick to establish that Palestinian refugees enjoyedthe rights of return, restitution and compensation,35

these rights haven taken an increasing emotional andsymbolic importance. Although most contemporaryPalestinian refugees would probably not opt foractual return, they are likely to reject a peace settle-ment that does not uphold, at least in principle, theirright of individual choice in the matter. The currentstate of negotiations ties Palestinian statehood tothe resolution of all pending issues, creating pressurefor an a priori renunciation of an absolute right ofreturn in exchange for a blanket political settlement.Having publicly upheld the right of return fordecades, the Palestinian leadership will be hard-pressed to win public support for an agreement onsuch terms.

34 United Nations Department of Public Information, The Question of Palestine and the United Nations, UN Doc. Brochure DPI/2157/Rev.1(March 2003), Chapter 10.35 Progress Report of the United Nations Mediator and the Right of Refugees to Return to their Homes and Receive Compensation,A/RES/194 (III), 11 December 1948.


The difficulties faced by the Palestinian leadership areunderscored by the rejection of the “Annan plan” forthe unification of Cyprus. Although this plan soughtto maximize the return of refugees and propertyrestitution, its rejection in April 2004 came aboutlargely because the Greek Cypriot leadership failed toprepare the population it represented for the resultsof painfully negotiated compromises.36

Cyprus has been divided between Greek and TurkishCypriots since a 1974 Turkish military invasion led todisplacement and dispossession on both sides and tothe creation of the Republic of Northern Cyprus,whose sovereignty was never recognized by theinternational community. In early negotiations, theparties had committed to a “bi-zonal” solution,implying that the Turkish Cypriots, who had been aminority population throughout Cyprus prior to theconflict, would retain administrative control and apopulation majority in at least some parts of thecountry. However, recent negotiations culminating inthe Annan plan struggled to reconcile “bi-zonality”with human rights standards in favor of return andproperty restitution. The jurisprudence of theEuropean Court of Human Rights, which binds bothparties to the conflict, was particularly relevant inruling out a “global exchange” of propertiesabandoned by displaced persons on both sides, andrequiring the parties to base any exceptions to theprinciple of return on non-discriminatory, publicinterest grounds.37

The formula ultimately adopted in the Annan planwas based on a two-pronged approach, whichincluded “territorial adjustment” whereby the linebetween the Greek and Turkish Cypriot states wouldbe shifted to the benefit of the Greek Cypriots. Inexchange, limitations on the rights of return and

restitution to non-adjusted areas would ensureretention of a Turkish Cypriot majority within its state.Although these limitations were crafted to prioritizethose with strong personal interests in return andproperty, they were nevertheless blamed for thefailure of the plan. Key Greek Cypriot leadersdenounced any solution short of full restitution andthe Greek Cypriot public rejected the Annan plan.While the Cyprus case reflects the continuedemotional resonance of displacement and disposses-sion even after three decades, its real lesson may bethe role of public information and “pedagogy.” As waspointed out, Turkish Cypriot leaders apparentlyworked hard to explain the plan to their populace. Asa result, the Annan plan was backed by TurkishCypriots, despite serious reservations, and remains theleading blueprint for unification of the island.

Overcoming Corruption and Mismanagement ofHousing, Land and Property

Management of HLP involves long-term efforts thatgo to the heart of the rule of law and goodgovernance in any society. In the developing world,severe economic pressures on HLP are brought to bearon traditional agrarian groups ill-prepared to copewith the effects of exogenous change. In this context,crucial issues arise at the intersection between “statelaw,” based on Western notions of individualizedproperty rights, and “customary” rules governing landand resources held jointly by members of traditionalcommunities.

In settings characterized by high land values andactive property markets, individualized property rightsunder state law can deliver efficient, clear andequitable property relations. However, for ruralagrarian communities that hold land in common and

36 Presentation by Didier Pfirter, “Property, Land and Return in the Comprehensive Settlement Plan of the UN Secretary General for Cyprus(Annan Plan),” IPA Workshop on Land, Property and Conflict Management: Identifying Policy Options for Rule of Law Programming, 2-3December 2004.37 European Court of Human Rights, Loizidou v. Turkey (App 15318/89), Judgment of 18 December 1996; Cyprus v. Turkey, (App 25781/94),Judgment of 10 May 2001.


rarely sell it, such complex and intensive rules areunnecessary and tenure security can be provided bycustomary law alone. In fact, only about one percentof land in Africa is registered, leaving the vast bulk incustomary tenure.38 Yet, the crucial role of customaryland management is really only beginning to beunderstood by international actors.

For all their strengths, informal systems may be morevulnerable to exploitation by potent, outsideeconomic players. As a result, where resource valuesrise, impulses toward individualization of rights maybe left unregulated. Where such individualizationtakes opportunistic forms, such as prohibited salesoutside the community or monopolization ofcommonly-held land, social tensions increase. Theresulting gap in legal clarity and tenure security canbe addressed through state law “recognition” ofinformal tenure. Forms of recognition such asregistration of customary landholdings and legalacknowledgment of traditional leaders' authority overresources (with or without insistence on newaccountability mechanisms) can help maintain tenuresecurity. However, unintended consequences and lackof implementation can also exacerbate disputes andinequities. Successful intervention often involvesrecognition of the limitations of state law as aninstrument of social policy.39

As a rule, legal recognition of informal rights shouldbe tailored to (1) the demonstrated needs of localcommunities under specific circumstances; and (2)structural and resource constraints on states' abilitiesto implement such regimes. One key to avoidingunnecessary or unimplementable state law interven-tions is to seek to complement, rather than supplant,customary norms and practices. In fact, nationaladministration of land and resource issues may bebest served by a bottom-up approach, with assisted

mediation of local HLP issues providing not onlysustainable local regimes but also principles to guidesound national level policy.

Local management should demonstrate some degreeof transparency and accountability as a condition forstate law recognition. First, communities should agreeon decision-making procedures, criteria for member-ship and lines of authority. Local dispute resolutionmechanisms are especially critical, with clear rulesnecessary in order to provide legal confidence tooutside purchasers and prevent internal disputes fromrevolving endlessly between parallel adjudicators.Second, communities should actively define theresource rights within their jurisdiction, distin-guishing any land held in mixtures of individual andgroup ownership from that held as genuine commonproperty by the entire community. Agreed demarca-tion of common property should generally be aprecondition for either selling or granting individualtitle to it.

Even under the best of circumstances, there areseveral risks commonly associated with local landadministration. One of the most serious is thattraditional prejudices can be perpetuated in the formof rules or practices effectively disenfranchisingvulnerable groups such as women, ethnic minoritiesor recent settlers with bona fide property rights. Theformal granting of individual title to customary landcan also jeopardize subsidiary or seasonal use rights,such as that of pastoralists to use cropland forgrazing after harvest. However, the most seriousthreat to stability usually relates to the capture ofland and resources by corrupted elites. For instance,recent conflict that killed thousands in Papua NewGuinea was sparked when village elders misappropri-ated money paid for mining rights. In fact, endemicresource-related corruption has reduced entire South

38 Liz Alden Wiley, “Formalizing the informal: Is there a way to safely secure majority rural land rights?” Paper presented to EGDI-WIDERConference on Unlocking Human Potential: Linking the Informal and Formal Sectors, Helsinki, Finland, 17-18 September 2004, p.2.39 Daniel Fitzpatrick, “In Search of 'Best Practice' Options for the Legal Recognition of Customary Tenure,” Development and Change,Volume 36, Number 3 (May 2005), pp. 449-475(27).


Pacific countries such as Papua New Guinea and theSolomon Islands to virtual failed states.40

A final, fundamental precondition for effective localresource management is a “relatively benign” state.Countries suffering from severe corruption or ethnictensions often witness government interventions tothe detriment of vulnerable local resource-holders.For instance, government negotiations to set upenvironmentally protected areas on indigenous landin Ecuador led to the exclusion of local tribes and theinitiation of unwanted oil drilling.41 The availability oflegal remedies at the domestic level has noteffectively protected indigenous groups, and thematter has now been submitted to the Inter-AmericanCommission on Human Rights.42 Loss of faith ingovernment as an impartial interlocutor can perpet-uate conflict, as in Aceh, Indonesia, where a peacedeal offering ninety percent of local resourcerevenues was at first rejected by separatists due tolack of trust in the Indonesian army, which was widelybelieved to have a financial stake in continuing theconflict.43

Additionally, local resource management will need topromote the responsible management of naturalresources such as oil and gas. Certain initiatives arealready underway, which have been created tocounter the negative impacts of natural resourceexploitation and resulting revenue distribution. Theseinclude the Chad-Cameroon pipeline project, whichcalls for externally-monitored fiscal management anda shared social revenue plan, and the United

Kingdom–sponsored Extractive Industries Trans-parency Initiative, which aims to advance fiscaltransparency of multinational corporations and otherhost governments who are partners in devising oil andgas concessions.44

In sum, state recognition of customary rights shouldbe tempered by the need to support rather thansupplant local institutions, as well as realisticexpectations about how much can be achieved inlight of resource restraints. Devolution of HLPadministration to local communities can improvetenure security, but constitutional safeguards againstdisenfranchisement of vulnerable groups andaccountability measures against corruption should beconsidered. Benign state assistance with localmanagement can be of great help, but the balance ofintervention and devolution should be struck verymuch on a case-by-case basis.

IV. Key Insights

A great deal is already known about HLP disputes, andsignificant practical precedents have been set in bothpost-conflict and development settings. Recent movestoward “mainstreaming” HLP issues in organizationsranging from the UN High Commissioner for Refugees(UNHCR) and UN-Habitat to the World Bank, USAIDand the Organization for Economic Cooperation andDevelopment (OECD) give rise to some optimism thatthe current pattern of individual cases of effectivepractice may coalesce into consistently appliedinternational policies on HLP rights. However, such

40 Anthony J. Regan, “The Bougainville Conflict: Political and Economic Agendas,” in Karen Ballentine & Jake Sherman (eds), The PoliticalEconomy of Armed Conflict: Beyond Greed and Grievance, (Boulder: Lynne Rienner, 2003), p.133, 136 and 150; on the Solomon Islands seeClive Moore, “Beyond RAMSI, The Future of the Solomon Islands,” in Anne Brown (ed), Development and Security in the Pacific IslandRegion, International Peace Academy and Australian Center for Peace and Conflict Studies, University of Queensland, forthcoming.41 http://www.iisd.org/pdf/2003/investment_investsd_may23_2003.pdf42 Report No.64/04, Petition 176/03 (admissibility) The Kichwa People of the Sarayako Community and its members vs. Ecuador, 13 October2004, http://www.cidh.oas.org/annualrep/2004eng/Ecuador.167.03eng.htm43 Note that a Peace Agreement was signed on 15 August 2005. See International Crisis Group, Aceh: A New Chance for Peace, Asia BriefingNo.40, 15 August 2005.44 See Leiv Lunde and Mark Taylor, “Regulating Business in Conflict Zones: Challenges and Options,” in Karen Ballentine and Heiko Nitschke(eds), Profiting from Peace: Managing the Resource Dimensions of Civil War (Boulder: Lynne Rienner, 2005), p.317, 323-4.


developments are not a given, and continued effortswill be necessary in order to build consensus aroundthe following key insights:

Disputes over HLP rights are a threat to developmentand security.

Land and property are unique, immovable productiveassets of inherently high financial value. For theagrarian poor, survival often hinges on access to land.Beyond their economic import, land and property arealso frequently invested with enormous political,cultural and religious significance. Control of land isequated with both wealth and power in societiesaround the world. It is therefore little wonder thatland and property are central to many intra-stateconflicts. Disputes over control and access to landoften both reflect and contribute to broader politicaland ethnic struggles.

Tensions over land and property inhibit local produc-tivity and discourage foreign investment, hinderingeconomic growth. Moreover, where the state isunable or unwilling to address such grievancesthrough effective dispute resolution and guaranteesof equitable access, intra-state conflict can and oftendoes ensue. In the wake of fighting, displacement andconfiscation add further layers of complication andgrievance, frustrating efforts to negotiate andimplement lasting peace settlements. In the worst ofcases, such legacies of conflict can spur furtherviolence, contributing to intractable cycles ofwarfare.

Tackling HLP issues requires consistent attention andsystematic planning in conflict management policy.

Concerns persist that well-intentioned intervention inhighly technical and context-sensitive HLP disputescan do as much harm as good. However, failure toinvest in informed and effective approaches to HLPdisputes risks leaving the international community

grappling with the symptoms rather than addressingthe causes of conflict. HLP disputes will not be adominant feature in every development and post-conflict situation and should be sequenced vis-à-visother priorities according to case-by-case assessment.However, failure to systematically assess andadequately respond to HLP issues is likely tojeopardize other domestic and international invest-ments in both development and post-conflict settings.The current ad hoc approaches to HLP issues adoptedby the UN and its agencies risk sacrificing helpful andhard-won principles for expediency.

Recent policy research and lessons learned from fieldpractice have converged around the need to compre-hensively address persistent HLP disputes in order toachieve both security and development goals. Theinternational law principles applicable to HLP areincreasingly clear. Research and practice willundoubtedly continue to inform policymakers'understanding of the relationship between HLP andconflict. However, enough is currently known that asignificant number of international agencies—theWorld Bank, OECD, USAID, UNHCR and UN Habitat—have recently adopted or proposed comprehensiveguidelines on HLP and conflict.

While these are promising developments, there is agreat deal that could still be done. All developmentagencies should be aware of early signs of destabi-lizing disputes and be given advice on how to respond.Governments contemplating HLP reforms shouldreceive consistent support and technical advice.Severe violations of HLP rights in the course ofconflicts should uniformly be condemned and obliga-tions to remedy them should be a standardcomponent of peace negotiations. Perhaps mostimportant, UN peace missions should consistently beprovided with adequate advance briefing on post-conflict HLP issues in order to be able to assess andsequence them with other priorities in an informedand effective manner.


Addressing HLP rights should be a core component ofrule of law strategies

The fundamental objective of reform processes shouldbe to anchor HLP relations within a legal systembased on the rule of law, with general adherence toknown rules and disputes resolved in a transparentand predictable manner. The failure to include landand property reform as a central rule of law objectivein post-conflict and development settings resultsfrom the tendency of rule of law programs to focus onlaw and order, rather than on socio-economic issues.However, HLP rights are one of a number of quotidianadministrative and private law issues that have anequally significant impact on the daily lives ofordinary people. Future attention to HLP as a core ruleof law concern would redress this imbalance andincrease the effectiveness of post-conflict anddevelopment programming.

Emerging legal standards should frame negotiationson HLP issues

Disputes over HLP are notoriously difficult tonegotiate, particularly where they have alreadyresulted in armed conflict. Given the unique andlimited qualities of land and property, there is oftenvery little scope to arrive at solutions that willsatisfy all claimants. As a result, peacemakers mayhave legitimate concerns that legal normsprotecting HLP rights may have gotten ahead ofnegotiating pressures and dynamics, which couldlimit the scope of acceptable outcomes to the pointwhere compromise could be impossible to reach. Ina dilemma reminiscent of the peace versus justicedebate regarding amnesties, there is room toquestion whether the most difficult HLP disputesshould be addressed at all in initial peace negotia-tions.

A key insight in resolving this dilemma is the realiza-tion that HLP conflicts generate “more tort than can

be repaired,” and that the goal of negotiations cannotbe to redress all grievances but merely to distributesacrifice—and recognition—relatively equitably on allsides. Failure to address underlying HLP disputes at allin peace negotiations is almost sure to perpetuatemore grievances than a resort to compromise. Forinstance, addressing inequities of power manifestedthrough land relations would be a vital but incendiarycomponent of any truly sustainable future settlementof conflict in the Great Lakes region of Africa. Thesame considerations apply to pre-empting conflict, aswell as ending it, as witnessed by the difficultcompromises made over restitution in post-apartheidSouth Africa.

Finally, as demonstrated by the Annan plan for Cyprus,the exigencies of negotiated peace settlementsprovide a real justification for limiting the strictapplicability of human rights norms throughexceptions based on public interest. In other words,human rights norms pertinent to HLP conflictsinherently contain sufficient flexibility to facilitatecreative and sustainable compromises. In addition,contemporaneous international condemnation of HLPrights violations can serve to place the parties toconflict on notice that they will be expected toaddress these issues in peace negotiations.

Approaches to HLP disputes should build on existinginstitutions and practices

In both development and post-conflict settings, thebest approach to HLP conflicts is to build on localinstitutions and practices rather than supplant them.Where rule of law is weak and the internationalcommunity's role constrained, this approach is likely tobe the only one that will yield sustainable results. Evenin a setting such as Bosnia and Herzegovina where theinternational community devoted extraordinary energyand resources to property restitution, greater engage-ment with local institutions may very well haveproduced better results. The fact that Bosnian restitu-


tion was based on domestic law and implemented bylocal officials lent it a legitimacy that arguablycontributed to relatively high levels of refugee return.

Yet, inherent risks in reliance on local institutionsmust be countered. One major challenge is thatdiscrimination can be perpetuated in the form of rulesor practices effectively disenfranchising vulnerablegroups such as women and ethnic minorities. Failureto ensure some degree of transparency and account-ability can lead to the capture of such processes bycorrupted traditional elites. Thus, while interventionsin HLP issues should be calculated to support existinginstitutions, constitutional safeguards againstdisenfranchisement of vulnerable groups andaccountability measures against corruption should beconsidered. It should also be borne in mind that insome cases, such as the Great Lakes region of Africa,traditional structures may be the main barrier toprogress in and of themselves.

V. Final Recommendations

Although HLP is still an evolving policy area cuttingacross various institutional mandates, there are anumber of important policy recommendations thatdeserve closer attention. These recommendationsderive from the workshop's discussion and asubsequent strategy meeting with the panelists, aswell as additional research conducted by IPA. Thepoints of agreement are reproduced here in the hopethat they will be of assistance in policy-making, fieldimplementation and future research. Theserecommendations focus on land, property andhousing as they relate to development settings as wellas post-conflict property issues.

1. General Principles

• Housing, land and property (HLP) policiesshould as far as possible be addressed in

conjunction to ensure that residential and landrights are dealt with more comprehensively bydomestic and international actors.

• HLP disputes have the potential, if notadequately handled, to aggravate or contributeto violent conflict. Unequal and discriminatoryHLP policies, lack of economic opportunitiesand a high reliance on the agricultural sectorand subsistence living may all exacerbateexisting cleavages in conflict-prone orconflict-ridden countries. The linkage betweenHLP and conflict justifies the adoption ofconflict-sensitive approaches to such policies.Furthermore, widespread HLP disputes in pre-and post-conflict settings must be grantedgreater attention by international developmentagencies, bilateral agencies and UN peacemissions.

• National and international actors shouldrecognize the tensions and complexitiesinherent in enacting HLP programs; policieswith divergent aims—such as economicgrowth, privatization, tenure reform, humanrights protection, institutional capacity-building and pro-poor or subsistence-orientedmeasures—have the potential to act at crosspurposes. At the very minimum, specific HLPactivities should be incorporated into widerdevelopment and peacebuilding strategies.

• Three fundamental objectives should underpinHLP policies: tenure security, access to HLP andrestitution of HLP in cases of forced displace-ment. Achieving these objectives will helpensure that HLP policies contribute to socialand economic development and peace andsecurity, based on international human rightsstandards and the rule of law. Rule of lawinstitutions and processes can play a crucialrole in helping achieve these objectives andcan support more equitable and peaceful HLPrelations.


2. Housing, Land and Property: Conflict-SensitiveApproaches

• The relevance of HLP disputes as a driver ofviolent conflicts should lead to the adoption ofconflict-sensitive policies by UN developmentactors. The World Bank, USAID and the OECDare currently incorporating conflict-sensitivityinto their HLP approaches. At the UnitedNations, the Food and AgricultureOrganization (FAO) and UN-Habitat have forlong developed expertise on land and housingissues, respectively. Additionally, the key UNdevelopment agency, the UN DevelopmentProgramme (UNDP), should incorporate HLPissues into its conflict analysis at the Bureaufor Conflict Prevention and Recovery andengage with other relevant actors on the wayHLP plays into conflict prevention anddevelopment practice.

• In much of the developing world, customarylaw regulates the ownership and use of HLP.The application of customary law in fragilestates should be better understood and utilizedby international actors working on HLPpolicies. International approaches must betailored to the strengths and weaknesses ofthe informal systems they are supplementingor supporting.

• However, while customary tenure candemonstrably support secure and equitableproperty relations, it will not alwaysadequately protect local communities fromoutsider interventions; it will often discrimi-nate against specific groups, including women;local elites may manipulate customarypractices for personal gain; and the presenceof plural legal institutions with the authorityto adjudicate upon HLP disputes mayencourage “forum shopping” and lead toprotracted HLP disputes.

HLP-Specific Policies

• Where severe inequities in HLP distribution actas a barrier to economic growth and socialdevelopment or are a potential driver ofconflict, redistributive policies should beconsidered.

• Registration and the provision of formal titlesare one of the better known HLP policy tools.Yet, the impact of registration on economicand social development should be qualified. Inparticular, multiple titling can contribute tocyclical conflict and protracted disputes. Thegrant of “qualified titles” under which currentoccupants' rights are vested if no challenge isfiled within a set time-period, can helpdiminish tenure insecurity. Additionally,registration systems should seek to providelegal recognition to customary or informalrights without necessarily converting theserights to imported tenure norms.

• In many agrarian societies, properties that aremost vulnerable to dispute are commonproperties, those lands like forests andpastures, which are owned jointly by membersof groups or communities. These are oftenincorrectly treated as un-owned lands.Innovative legal constructs are needed in orderto allow registration of group ownership. It isalso necessary to clarify distinctions betweenownership and access rights; often pastoralistshave customary access rights to locally ownedlands. Additionally, in order to exclude elitecapture or subdivision of important commonproperties, communities should not be encour-aged to register properties owned byindividuals and families until common proper-ties have been defined and registered in amutually agreed fashion.

• In many situations, the creation of a register isnecessary. In order for the register to be fully


accessible, accountable and useful to owners,it is important to locate registers at the lowestadministrative level. Systems need to beestablished which enable the public to inspectthe register freely and at no cost and to recordownership changes for a minimal fee.Mechanisms should also be put in place toenable and assist the resolution of HLPdisputes by local actors, before submitting thematter to more remote and formal adjudica-tion.

• Placing accountability for maintaining HLPrecords on holders themselves rather than onthe state may lower overall costs and maycreate incentives for consistent recording ofsubsequent transactions and general mainte-nance. Yet, where local elites are able torestrict access to records, they can become ameans of consolidating political power. Assuch, there is a need for the creation ofmechanisms at the local level for informalnegotiation and mediation.

“Mainstream” Governance and Rule of Law Policies

• Devolution may be particularly crucial inagrarian settings where people depend uponland for survival. Inclusive processes for policydevelopment and dispute resolution vested atthe local level can lead to the identification ofprinciples and practices useful for building upnational level policy. Local administration ofHLP issues must be accountable, that is, followclear procedures and regulations on therepresentation and membership of thecommunity, as well as on decision-making anddispute resolution.

• Decisions to devolve HLP policy processesshould be based on participatory decision-making that goes beyond consultations inorder to diminish the risk of manipulation andcapture of such processes by opportunistic

local elites and ensure the inclusion of localstakeholders who are traditionally disenfran-chised based on ethnic, class, age or genderbias. However, a top-down approach toregistration and broader HLP policy may bejustified under some circumstances wherelocal consensus is incompatible with interna-tional standards.

• Informal community-based dispute settlementmechanisms are a particularly important toolto ensure effective and legitimate adjudicationof HLP disputes and to promote greater equityin property relations at the community level.However, their relationship to the nationaljudicial system should be clearly defined, inparticular with regard to the existence ofeffective remedies.

3. Housing, Land and Property Policies in Post-Conflict Settings

• HLP disputes are prevalent in post-conflictsettings characterized by large-scale displace-ment, abandoned land and housing, illegal HLPoccupation, overlapping claims, reducedhousing stock and lack of HLP records. If notaddressed, HLP disputes have a real capabilityof jeopardizing post-conflict peacebuildinggoals of national reconciliation and sustain-able economic and social development.

• Where specific HLP issues were themselvesamong the main causes of the conflict ordirectly threaten the viability of the peacesettlement, a peace agreement should seek toresolve these issues without delay. While itmay not always be politically sound to adoptradical HLP reforms in the immediateaftermath of conflict, peace agreementsshould at least mention the role of HLP in thereconstruction of the country and interna-tional agencies should engage in a rigorousplanning process and set clear timelines for the


adoption and implementation of HLP policies.In particular, measures regulating thetemporary allocation of HLP, including deedsregistration systems (i.e., the basic recording ofHLP transactions), should be immediatelyenacted in order to avoid increased tenureinsecurity and social unrest in the short term.

• In accordance with international human rightsand humanitarian law, restitution mechanismsare now commonly applied to redresswidespread, systematic or discriminatoryforced evictions and dispossessions of HLP,particularly where such acts were formallycondemned by the international community.These restitution processes should, as far aspossible, be integrated within a broaderstrategy that addresses the HLP rights of thegeneral population with a view to improvetenure security and access to HLP.

• To this end, the UN should consider theadoption of rights-based HLP strategies as partof its post-conflict peacebuilding activities,and in particular have these included in themandate of the proposed UN PeacebuildingSupport Office. At the very least, HLP should bebetter integrated into the planning, implemen-tation and sequencing of peacebuildingactivities undertaken by UN agencies,including UNDP, UNHCR, UN-Habitat or FAO.

• The situation of secondary occupants ofclaimed HLP should be assessed at the outsetof restitution programs. Acquired rights shouldbe taken into account, at least with theprovision of some form of compensation or theprovision of alternative accommodation tooccupants of claimed property. These should begeared to the provisional needs of the restitu-tion program and should be better coordinatedwith development of long-term socialassistance programs.

• While restitution of HLP is the most desirablesolution and should be actively supported byinternational actors, in some cases it may notbe possible. Where property and housing hasbeen destroyed on a large scale, where land tobe restituted cannot be used, and where HLPtenure was not clearly regulated and subjectto dispute before the conflict, alternativeforms of redress—including compensation—may be more viable. The establishment ofinsurance funds to cover the loss of propertyinterests that cannot be restituted should alsobe considered. In settings where land andproperty relations were inequitable orcontentious prior to the outbreak of conflict,broader HLP reform should, at a minimum,take place in a phased manner alongsiderestitution or compensation.

777 United Nations Plaza • New York, NY 10017-3521 • P 212 687-4300 • F 212 983-8246

www.ipacademy.org

AcknowledgementsThe authors would like to acknowledge the editorial support of Reyko Huang, Clara Lee, Gordon Peake,and Necla Tschirgi in reading and commenting on previous versions of this report. They would also liketo thank the workshop participants for their comments on the report’s final recommendations.

About the AuthorsDr. Agnès Hurwitz has been the Program Associate in charge of the Rule of Law Project at theInternational Peace Academy since January 2004. Prior to joining IPA, she held the position of FordFoundation Research Fellow at the Refugee Studies Centre of Oxford University. She holds a doctoratefrom the University of Oxford, an LL.M. from Cambridge University and an LL.B. from the University ofBrussels.

Ms. Kaysie Studdard was, until recently, Senior Program Officer at the International Peace Academy,where she worked on the Security-Development Program and Economic Agendas in Civil WarsProgram. Ms. Studdard is now a researcher at the Center for Global Development, working on weakstates, transnational threats and international security, as well as on the US Millennium ChallengeAccount. She has a master’s degree from the University of Oxford.

Mr. Rhodri C. Williams spent four years in Bosnia and Herzegovina working on post-conflict propertyissues with the Organization for Security and Cooperation in Europe (OSCE) and is currently anindependent consultant. Mr. Williams received an M.A. in Geography from Syracuse University in 1995and a J.D. from New York University in 2000.

The Security-Development Nexus Program Policy Papers and Conference Reports

International Peace Academy

Peacebuilding as the Link between Security andDevelopment: Is the Window of Opportunity Closing?Necla Tschirgi. Policy Paper, December 2003.

Strengthening the Security-Development Nexus:Assessing International Policy and Practice since the1990s, Agnès Hurwitz and Gordon Peake. ConferenceReport, April 2004.

Police Reform through Community-Based Policing:Philosophy and Guidelines for Implementation, HestaGroenewald and Gordon Peake. Policy Paper,September 2004.

Post-Conflict Peacebuilding Revisited: Achievements,Limitations, Challenges, Necla Tschirgi. Policy Paper,October 2004.

Building Effective Partnerships: Improving theRelationship between Internal and External Actors inPost-Conflict Countries, International Peace Academyand WSP International. Conference Report, October 2004.

Police Reform in Post-Conflict Societies: What WeKnow and What We Still Need to Know, WilliamO’Neill. Policy Paper, April 2005.

Achieving the Millennium Development Goals inConflict Contexts. Prepared for the United NationsECOSOC High-Level Segment Luncheon. Policy Brief,June 2005.

Rule of Law Programs in Peace Operations, AgnèsHurwitz and Kaysie Studdard. Policy Paper, July 2005.

Housing, Land, Property and Conflict Management:Identifying Policy Options for Rule of LawProgramming, Agnès Hurwitz, Kaysie Studdard andRhodri Williams. Policy Paper, October 2005.

Taking the International Rule of Law Seriously:Economic Instruments and Collective Security,Laurence Boisson de Chazournes. Policy Paper,October 2005.

In Good Company? The Role of Business in SecuritySector Reform, Francesco Mancini. Policy Paper,October 2005.

This report can be accessed online at:www.ipacademy.org/Programs/Research/ProgReseSecDev_Pub.htm


Documents

HOUSING, LAND, PROPERTY AND CONFLICT MANAGEMENT ... › ... › uploads › publications › housing_land__pr… · 2 • Housing, Land, Property and Conflict Management II. Broadening