As remarkable as it may seem, all of us – even the most evil amongst us – were once innocent little children, blank slates with so much to learn and so much to live for. If we think back on that start of our life paths, what is one of the first things that all of our parents sought to teach us when we were young children? What life lesson does every parent notwithstanding their culture, religion, level of wealth or any other distinction, seek to impart to every child as a cornerstone of being a good person, doing the right thing, living as a kind human being, a citizen and productive member of society? Of course, that first life lesson all across the globe is simply to do no harm. Do not intentionally kill, injure or hurt another human being. And close behind that basic element of what it means to be human is this: Do not steal. Do not take what is not yours to take or that which has not been freely given to you. Do not take what does not belong to you.
And yet, in a world where every culture, every legal system, every religion, every set of moral principles views stealing as wrong, a crime and something for which people should be punished, there is a lot of stealing taking place. The brutal war crimes, killing, destruction and various forms of outright thievery taking place in Ukraine, as bad as they are, are just the latest in a long line of organized stealing committed by, in and against every nation on the planet in one way or another dating back as far as the mind can venture. Very often it is not just small possessions or money that is stolen, but people’s homes, lands and properties, the very cornerstones of their lives and livelihoods. However, in terms of remedies or restitution for stolen housing, land and property (HLP), the de facto reality in most of the world is not all that different to cases involving the murder of another human being whereby if one murders one other person they will likely go to prison for life no matter where the crime took place. If they happen to murder 10,000, 25,000 or even 100,000 people in a war or through the practices associated with dictators desperate to maintain power, however, they will be far more likely than not to live out their days in control over their population or in the unlikely event their reign comes to an end or they are otherwise overthrown, they will spend the rest of their days in exile, protected as a former head of state and able to enjoy all the stolen riches they took during their period as dictatorial autocrats.
Even before the illegal war of aggression by Russia and resultant killing spree and displacement crisis in Ukraine, since the end of the Second World War, the world had already never counted more displaced persons – both refugees and internally displaced persons (IDPs) – than there exist today. According to the United Nations (UN) refugee agency, UNHCR, as of 2021 there are more than 82 million people officially registered as refugees and IDPs, a number soon to surpass 100 million if displacement trends continue apace.[2] If those not officially considered persons of concern to UNHCR, including those displaced by environmental, climatic and other forces are added to this total, these numbers expand into the many hundreds of millions, with further hundreds of millions threatened with looming climate displacement as global climate conditions worsen.[3] As such, notwithstanding how displacement is measured, there are now many tens of millions of refugees and internally displaced people throughout the world who are seeking durable solutions to their displacement, many of whom dream of returning to their original homes, even if these homes are damaged or illegally occupied by others or if return would be dangerous. International law and practice increasingly recognizes that all people who have seen their homes destroyed or arbitrarily occupied by members of opposing political, ethnic or religious groups, must be legally entitled to re-possess and return to their homes, lands and properties through the process of HLP restitution, and when return is either dangerous or materially impossible, that control should be able to be re-established over these HLP resources by the displaced and where required adequate compensation or reparations be paid.[4] Unresolved restitution cases span the globe, leaving tens of millions of people with legally outstanding (and thus, unresolved) restitution claims and no remedies available to rectify this state of affairs. These people are waiting for justice, but most have nowhere to turn to have their case heard and their interests represented.
Despite the efforts of so many to assist the displaced, there is still no international inter-governmental, State-based institution or independent non-governmental body in place to systematically monitor, advocate for and help enforce HLP restitution rights for the displaced. In effect, therefore, HLP restitution is currently a right without an institutional champion dedicated to providing targeted assistance to the tens of millions of persons yet to achieve residential justice, restitution or compensation. Even where these issues have been addressed by recent global initiatives, albeit briefly, such as within the 2021 UN Secretary-General’s High-Level Panel on Internal Displacement, there is no agency in place with a mandate to comprehensively address all aspects of the restitution question.[5]
Although often dismissed by increasingly xenophobic governments that are intent on limiting the rights of asylum seekers and migrants, many refugees and IDPs want nothing more than to go back to their places of habitual residence should circumstances so allow. Despite the frequently heard views uttered by those opposed to restitution, the displaced do not forfeit their HLP rights to their former homes if they choose not to return due to the dangers associated with doing so. Indeed, far from it. International law, of course, rightly prohibits governments from forcing people to return to dangerous conditions, but once return is the desired option by the displaced themselves, however, their HLP restitution rights need to be taken seriously. This is important not only because of the human rights issues involved. History amply shows that lasting peace, stability and security in post-conflict societies, for instance, are strengthened when HLP cases are resolved and restitution guaranteed, rather than being left to fester without remedy. This is particularly true in areas where displacement was brought about by violence or acts of ‘ethnic cleansing’. The unresolved restitution claims, for instance, of millions of Palestinian refugees remains a key stumbling block in the search for a sustainable peace in the territory of Israel and Palestine, as do the unresolved restitution claims of refugees and IDPs in countries such as Cyprus, Georgia, Syria, Yemen, Myanmar and so many others. Clearly, displaced people should not be punished with the loss of their homes and lands and the rights in place to protect them simply because they fled to save their lives, and restitution is the process by which at least an attempt can be made to return the situation to what it was at the time when the initial crime and/or displacement took place, eg. the very definition of restitution, and why this principle has such a lengthy history in law. When return is not possible nor desired due to security, human rights and other concerns, this does not in any way extinguish restitution rights or restitution concerns. Indeed, return and restitution are not necessarily inter-changeable terms, although they are often used as such, and restitution rights remain valid whether or not a given refugee or IDP chooses the return option as their preferred durable solution to their displacement. Restitution is not a panacea per se, nor a guarantee for peace and stability, but it forms a key element in any effort to build greater respect for human rights, the rule of law and institutionally committing to never accept the results of practices such as ethnic cleansing, population transfer and the implantation of settlers.
Recognizing the immensity of this problem, the UN has increasingly asserted that displaced persons – whether refugees or internally displaced – should have the right to return to their homes should they so wish. Indeed, there is a growing recognition that what the UN refugee agency labels as ‘safe and dignified return’ cannot effectively take place unless HLP restitution rights are protected. Though it may be slow and not without difficult obstacles to be overcome, by using legal mechanisms backed by human rights laws, countries have shown that successful restitution can occur, despite the sensitive political atmospheres where restitution processes generally take place. Indeed, in his recent path-breaking book simply entitled War, esteemed international lawyer Andrew Clapham concludes this impressive opus with a view that “Today one can no longer seize people, territory or property and simply claim that ‘all’s’ fair in love and war’.” If such seizures are no longer accepted as inherent attributes of war, then the arguments in favor of creating mechanisms to reverse such attempts through the process of restitution becomes yet stronger.
And yet, whether Ukrainians, Palestinians, Libyans, Syrians, Georgians, Somalis, Afghans, Iraqis, Ossetians, Crimean Tatars, ethnic Nepali Bhutanese, Congolese, South Sudanese, Abkhazians, Serbs, Bosnians, Armenians, Azeris, Cypriots, Colombians, the Rohingya, Karen, Karenni, Shan or other ethnic groups in Myanmar, Tibetans, Kurds, Iraqis, Afghans and so many others, the more than 80 million of the world’s displaced first want security and protection, but once these are accessed, thoughts of eventually going home, starting over, and re-establishing their former lives are never very distant. And let’s not even get started on the unresolved restitution claims of First Nations Peoples everywhere.
Put simply, refugees and IDPs almost universally wish they could return home if conditions so permitted, or when this is not possible, at the very least that they would be able to exercise control over the homes and lands they left behind when they fled. Similar sentiments often exist within the governments in countries now hosting the displaced. It is well-known, for instance, that individually and collectively within the contexts of the European Union, Council of Europe and NATO, strong political support exists to facilitate the voluntary return home by groups comprising recent large-scale refugee movements who are now in Europe, even well before the Ukraine crisis, through the establishment of mechanisms to address unresolved restitution claims and other measures that would support safe and dignified return. The lack of avenues to restitution, thus, makes return increasingly difficult.
While a wide range of international and regional bodies have been involved with restitution processes on a largely ad hoc basis since the end of the Cold War, with thousands of successful restitution claims in places such as Bosnia, Kosovo, South Africa, Tajikistan, Mozambique, Colombia and others, no single UN or other inter-governmental agency maintains a full-time, adequately staffed mandate or competency to focus the attention and resources needed to the question of resolving millions of as of yet unresolved restitution claims. Agencies that one might assume would happily embrace these competencies, in particular, the UN High Commissioner for Refugees (UNHCR) and UN Migration (IOM) come nowhere near having the internal political support required to focus adequately – let alone comprehensively – on the unresolved restitution demands of refugees and IDPs, nor do a whole host of other agencies that have been involved to one degree or another with restitution issues in recent decades such as UN Habitat, UN Office for the Coordination of Humanitarian Affairs (OCHA), the Council of Europe, OSCE and many others.
Given the sheer scale of unresolved HLP restitution claims in so many countries and the glaring gap between the right afforded refugees and IDPs to restitution and the de facto reality facing a majority of these rights-holders which prevents the exercise of these rights, it is clear that new approaches are required by the international community to give renewed impetus to the question of restitution and how to best bring these complex rights into reality. One means by which these objectives could be pursued is through the establishment of a new international organization, either under the auspices of the UN or comprised of groups of like-minded states or regional organizations or entities independent and non-governmental in nature, dedicated exclusively to the question of resolving all outstanding HLP restitution claims wherever they exist. A new agency of this nature could be built around the development and use of a Smartphone App called the ‘My Home App’ and address a wide range of outstanding restitution claims from circumstances of displacement that have occurred since the end of the Second World War in countries as diverse as Syria, Myanmar, Colombia, Sudan, Armenia, Azerbaijan, Georgia, Ukraine, Sri Lanka and many, many others. Moreover, a new agency could act as a global advocacy centre supporting HLP restitution rights, provide digital database capacities for holding and assessing restitution claims and act as a clearinghouse for global restitution expertise. If donors supporting a new WRA were to back this, the new agency could also address the human rights dimensions of a wide range of new displacements that are currently without remedy that will continue to occur due to the effects of climate change and other causes. Consideration should also be given to addressing the numerous outstanding restitution claims of indigenous peoples across the world who all share the experience of dispossession, the loss of traditional lands, land grabbing, displacement, ethnic cleansing and countless other crimes.
Seen as a distinct human right and remedy, restitution as a tool for justice is currently without an institutional home or champion working full-time and exclusively on these complex issues that could assist tens of millions of persons to achieve residential justice and restitution or compensation. With so many people today living under the control of authoritarian governments led by dictators not subject to the rule of law and where impunity for past crimes including the theft of HLP assets remains the norm, this is no small matter, and these populations will in virtually all circumstances need to wait until more democratic regimes replace these despotic regimes before any chance emerges that they will be able to get their stolen homes, lands and properties back through the process of restitution. But as the past several decades have borne witness, without an organized push to do so by restitution claimants and their supporters, even new democracies promising a new political dawn do not invariably give back what was stolen in the past, and the list of such countries that have failed to institute restitution is a growing, rather than declining one.
As painful as these realities may be, this is the shape of our modern world, and very much the same applies to the question of stealing people’s homes, lands and properties. The International Criminal Court and other bodies have been established to address mass murder, and can address individual criminal acts involving war crimes and crimes against humanity, indeed, all of the crimes outlined in the ICC’s Statute, that result in the attempted theft of people’s homes, lands and properties, but the world still has no such body or organization dedicated to getting HLP assets back to their legitimate owners. The time has come to establish a new World Restitution Agency, or WRA, to act as a central, global clearinghouse of action on all matters relating to unresolved HLP restitution claims which now measures in the tens, if not hundreds of millions of cases, and amounting to hundreds of billions and more likely trillions of dollars in financial value. The world needs to fill this gap if the rule of law is no mean anything. The world needs to do the right thing. Establishing a new WRA is feasible, affordable and achievable with sufficient donor support. A new WRA would provide an extremely important service – which is not currently available – to tens of millions of people who remain without an institutional champion supporting them and their unresolved restitution claims.
As positive as the legal and institutional developments supporting restitution rights over the past 30 years have been, those seeking to claim and enforce HLP restitution rights still lack a satisfactory answer as to why they still have no single institution in place to which they can turn to seek residential justice when domestic remedies are lacking. Despite the inclusion of restitution rights in numerous human rights standards, peace agreements, voluntary repatriation agreements, and national laws and policies as vehicles through which restitution due to post-authoritarian, post-communist and post-conflict settings as a tool for justice and to reverse ethnic cleansing, housing, land and property restitution rights lack institutional support. And yet, if peace, restorative and residential justice, the rule of law and human rights are to mean anything to those who were forced from their homes, lands and properties restitution must be treated as a human right for all refugees and IDPs wishing to return to their former homes and lands, and be backed by the establishment of a new institution dedicated to these objectives. But failing to create conditions that make restitution possible will not only serve to severely undermine basic principles of justice and law, but will provide further justification and, quite literally, ammunition to those who are so emotionally and physically decimated by waiting to repossess their homes and lands, that they feel they are left with no other option than violence and a rejection of peaceful methods to achieve justice.
Restitution is possible, feasible, affordable, legal and, above all, just. It is a prerequisite for sustained peace – will provide a way to avoid future restitution-based tragedies, and instead encourage all of those States which continue to refuse to return housing and property to those from whom it has been illegally taken, to have the wisdom and foresight to let residential justice prevail. For this will be in everyone’s ultimate best interest. Establishing a World Restitution Agency is the ideal way to begin to breathe new life into the promise of HLP restitution for all.
NOTES
1. This is a brief summary of the recent report issued by Displacement Solutions several days before the Ukraine invasion commenced in February 2022 entitled: Securing Residential Justice for Refugees and Internally Displaced Persons: The Urgent Need for a World Restitution Agency, available at www.displacementsolutions.org. ↑
2. UNHCR, UNHCR Global Trends Report, 2021. ↑
3. See: UNHCR, Unlocking Solutions for the Internally Displaced: Additional Submission to the High-Level Panel on Internal Displacement, September 2020. ↑
4. See, for instance, Pablo de Greiff (ed), The Handbook of Reparations, Oxford University Press, 2006. ↑
5. UN Secretary-General’s High-Level Panel on Internal Displacement, Shining a Light on Internal Displacement: A Vision for the Future, United Nations, September 2021. This important report only mentions restitution in the most sporadic of fashions, noting ‘In addition to peace processes, restitution of property left behind and compensation for destroyed or lost property are crucial for enabling IDPs to rebuild their lives and for the closure they can help provide for communities that have suffered during crises….Many countries lack the resources to offer effective compensation while, in others, informal approaches to housing and property tenure create challenges for IDPs in reclaiming their rights and entitlements. Even where the means are available, many States do not prioritize such initiatives’. (p. 16). ↑