THE URGENT NEED FOR A WORLD RESTITUTION AGENCY.

SECURING RESIDENTIAL JUSTICE FOR REFUGEES AND INTERNALLY DISPLACED PERSONS:

THE URGENT NEED FOR A WORLD RESTITUTION AGENCY

February 2022

Cover image: © Kadir Van Lohuizen.

A woman in Aita Chaab sits amidst the ruins of her house. Aita Chaab is a village on the border with Israel.

CONTENTS Executive Summary

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I.

Background

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II.

The Legal Basis for Restitution Claims

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III. Contemporary Institutional Engagement on Restitution

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IV. Unresolved Restitution Cases Today

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V.

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Are Current Institutions Sufficient to Protect Restitution Rights?

VI. A World Restitution Agency

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Foundational Perspectives

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Advocacy

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The My Home App

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Organisational Components

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Location

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Budget

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VII. Conclusions and Recommendations

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Annex 1 United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (2005)

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Annex 2 The My Home App

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EXECUTIVE SUMMARY All of us were once children. 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. 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.

The recent release of a report by International IDEA in late-2021 worryingly revealed that for the fifth year in a row the number of countries heading towards authoritarianism outnumbered those experiencing growing democratisation.1 The report identified 98 countries classified as democratic, 20 hybrid governments (countries slipping away from democracy and towards dictatorship), and 47 outright authoritarian regimes. The latter two categories constitute a staggering 70% of the world’s population, some 5.6 billion people.

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 organised 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.

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International IDEA, The Global State of Democracy Report 2021 - Building Resilience in a Pandemic Era, November 2021.

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, but the world still has no such body or organisation dedicated to getting HLP assets back to their legitimate owners.

This report addresses this lacuna and proposes that 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.

Displacement Solutions would like to thank the Sandoz Family Foundation for its kind and generous support in making this project possible. We would also like to thank the various experts and commentators who provide inputs into this report, in particular Viraaj Akuthota of Tech Solutions for Human Rights, Prof. Andrew Clapham of the Graduate Institute in Geneva, Fernando de Medina-Rosales and Katrien Ringelé of the Norwegian Refugee Council, Jim Robinson of the HLP Sub-Cluster, Tom Corsellis of the Shelter Centre and others. The author has written extensively on the issue of housing, land and property restitution since 1998, and this work draws on many of the field experiences and research initiatives undertaken by the author on HLP restitution since that time and is current as of January 2022.

Scott Leckie Founder and Director, Displacement Solutions 20 February 2022

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

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

United Nations ‘Pinheiro Principles’ on Housing and Property Restitution for Refugees and Displaced Persons (2005)

I. BACKGROUND 1.

Since the end of the Second World War, the world has 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. 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. 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 or at least re-assert control over them, even if these homes are damaged or illegally occupied by others or if return would be dangerous. International law and practice increasingly recognises 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/ or 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. Unresolved restitution cases span the globe, leaving 2

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UNHCR, UNHCR Global Trends Report, 2021.

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See: UNHCR, Unlocking Solutions for the Internally Displaced: Additional Submission to the High-Level Panel on Internal Displacement, September 2020.

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See, for instance, Pablo de Greiff (ed), The Handbook of Reparations, Oxford University Press, 2006.

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.

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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 official 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.

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3.

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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,

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).

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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.

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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.

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And yet, whether Syrians, Georgians, Somalis, Afghans, Iraqis, Ossetians, Ukrainians, Crimean Tatars, ethnic Nepali Bhutanese, Congolese, Sudanese, Abkhazians, Serbs, Bosnians, Palestinians, Armenians, Azeris, Cypriots, Colombians, the Rohingya, Karen, Karenni, Shan or other ethnic groups in Myanmar, Sudanese, Tibetans, Kurds 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.

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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 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, make return increasingly difficult.

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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, 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.

Image: © Kadir Van Lohuizen. Women walk over their destroyed appartment building in Southern Beirut, Lebanon.

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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.

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One means by which these objectives could be pursued is through the establishment of a new international organisation, either under the auspices of the UN or comprised of groups of like-minded states or regional organisations 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 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 support 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.

10. Restitution is currently a right 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. This report concludes that it is time for a new international body dedicated to these processes. Ideas as to what it could look like, where it could be established, how it would be designed and who could financially support it are explored below. But first we turn to the legal issues involved and the huge number of unresolved human rights claims, as two key arguments in favour of establishing a new WRA.

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II. THE LEGAL BASIS FOR RESTITUTION CLAIMS 11. Ever since the age of discovery began in the 15th Century, and for much of the time before that, although more localised, the violent conquest of land or territory was a common feature of geopolitics that resulted in huge transfers of land - indeed sometimes entire continents - resulting in the extra-legal principle of: To the victor go the spoils. For hundreds of years from the opening of the Americas in 1400s and then the rest of the non-European world after that, the so-called rules of the game in place at the time dictated that any dispossession that occurred through the process of colonialisation and/or armed conflict meant individuals, families, villages and even entire peoples lost their housing, land and property for good. Indeed, much of the way the world is organised and virtually all of the internationally recognised borders upon which the entire international legal system is premised have as their origins colonial conquest, occupation and military domination. For hundreds of years all colonial powers, but certainly not those they conquered, agreed tacitly and sometimes formally between themselves that persons, families and communities who were displaced and/or lost their possessions due to their actions, whether through conquest by the British Empire, French overseas territories in Africa, the Pacific and the Americas, the Portuguese Empire in Africa and Asia, the Ottoman Empire, the Dutch East Indies Company, the Soviet Union, the United States and so many others would transfer ownership and control of their traditional lands to the more powerful colonial powers. These processes resulted ultimately in the transfer of wealth measured today in many trillions of dollars and remain a key determinant as to why the highly skewed economic wealth and political power of the global North/western world today continues to exist to this day.

12. For a brief and hopeful window of time, however, these long-standing practices grounded in the principles of ‘might is right’ or ‘victors justice’ changed for the better. In just the past three decades matters have shifted in remarkable ways, whereby the theft of HLP assets were increasingly seen as the law intended them to be seen as unlawful and illegitimate.

With the end of the Cold War in 1989 and developments in the immediate aftermath of that historical turning point, it was increasingly accepted that dispossessed or otherwise displaced persons were not simply entitled to return to their countries of origin or allowed some form of temporary humanitarian access to their original homes, but that they also have a legally enforceable right to return to, recover, repossess, re-assert control over and reside in - should they wish - the homes, lands and properties they had earlier fled or from which they had been displaced; the implementation of the process known as restitutio in integrum. Where this was independently considered to be what is called materially impossible due to, for instance, the construction of an expensive shopping mall on the land that belonged to a displaced person, international law principles meant that people would then have a right to just and satisfactory financial and other forms of compensation or reparation in lieu of the physical return to or recovery of the HLP asset concerned.

13. While it may still be difficult to argue that all persons who have ever been displaced have a universally applicable codified right to housing, land and property restitution under international human rights law in all circumstances, or that all people with this right will actually be capable of exercising it, the emergence of this principle as a core human rights issue for refugees, IDPs and others who suffered HLP losses is now abundantly clear.

Displacement is such a broad phenomenon, and affects people in such a diverse series of ways, that arguing that restitution is the sole appropriate or legally guaranteed remedy of choice in each and every case would be difficult to support. For instance, cases of clear and over-riding public interest involving the expropriation of land for use in constructing social housing in a country with severe housing shortages, carried out according to law, and involving the full and satisfactory provision of compensation to those affected, would perhaps weaken a potential restitution claim. Economic migrants not forced by conflict or violence to flee their homes would also not generally be entitled to formal housing, land and property restitution rights in the same manner and to the same degree as a refugee or IDP fleeing well-founded fears of persecution. However, in a great many instances of land confiscation and displacement, restitution is clearly the preferred and appropriate remedy.

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14. Although the practice of HLP restitution is a relatively recent phenomenon, the concept of restitution, of course, has a lengthy history in terms of international law and, has long been accepted as an important judicial remedy within a wide range of national and international legal codes. It is on these foundations that much of the subsequent progress specifically on housing, land and property restitution has been built. International law approaches restitution generally through the lens of infringements of law due to what are defined as wrongful acts or omissions attributable to States through the application of the law of State responsibility.

One of the premier international law-making bodies, the International Law Commission in their 2001 Articles on State Responsibility outlines the legal meaning of the term ‘internationally wrongful acts’, as well as noting the following: 6

Article 34: A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: (a) is not materially impossible; (b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation. (emphasis added) 7

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A legal opinion of the Inter-American Juridical Committee has asserted that restitution is required for any violation of an international obligation: “Pursuant to the rules governing state responsibility in international law, any state that violates an international obligation must make reparations for the consequences of the violation. The reparation has the purpose of returning, to the extent possible, the situation to the way it was before the transgression occurred. Only to the extent that this would prove impossible, or that the aggrieved party would so agree, could there be room for any substitute reparation”. (Inter-American Juridical Committee, Legal Opinion on the Decision of the Supreme Court of the United States of America, OAS Doc. CJI/RES.II-15/92, para. 10 (1992)).

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Responsibility of States for Internationally Wrongful Acts 2001, Text adopted by the Commission at its fifty-third session, in 2001, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session. The report, which also contains commentaries on the draft articles, appears in Yearbook of the International Law Commission, 2001, vol. II (Part Two).

This vital standard discusses these matters in the following way: Responsibility of a State for its internationally wrongful acts - Every internationally wrongful act of a State entails the international responsibility of that State; Article 2 Elements of an internationally wrongful act of a State - There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) Is attributable to the State under international law; and (b) Constitutes a breach of an international obligation of the State; Article 3 Characterization of an act of a State as internationally wrongful - The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law. Chapter II - Attribution of conduct to a State - Article 4 Conduct of organs of a State - 1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State. 2. An organ includes any person or entity which has that status in accordance with the internal law of the

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15. While an analysis of the degree to which each particular manifestation of displacement or HLP acquisition/confiscation may have constituted internationally wrongful acts may need to be undertaken on a case by case basis, it is clear that the principles established under the Articles are of direct relevance to the vast majority of outstanding HLP restitution claims across the world today. It is also abundantly clear that it is only through the presence of an all-inclusive restitution programme accessible to those with outstanding HLP restitution claims that such determinations can be made, and justice secured. While all States maintain legal powers to expropriate land subject to certain criteria being met, these powers are far from absolute and are increasingly regulated by relevant legislation, both domestic and international, hence the world’s growing support for the principle of restitution. Contrarily, no state has the right to carry out ethnic cleansing, war crimes, crimes against humanity, genocide or gross and systematic human rights violations resulting in HLP abuses.

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16. In addition to these norms, international humanitarian law also addresses grave breaches of HLP rights that can give rise to measures of restitution. Restitution is a key element of the remedial measures envisaged under international criminal law. Article 75 (Reparations to victims) of the Rome Statute of the International Criminal Court specifically addresses 9

State; Article 5 Conduct of persons or entities exercising elements of governmental authority - The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance; Article 6 Conduct of organs placed at the disposal of a State by another State - The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.

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See, for instance, this view of HLP restitution by the US State Department: A successful property restitution program is an indicator of the effectiveness of the rule of law in a democratic country. Non-discriminatory, effective property laws are also of crucial importance to a healthy market economy. We recognize that in rem property restitution may not be possible in all cases. Payment of compensation is the obvious alternative. Property restitution is often complicated and controversial. Changing the ownership and use of buildings and land from one party or purpose to another can cause major disruptions that already economically challenged countries can ill afford.

There is no single system of property restitution laws and procedures that can be applied to all countries. In encouraging restitution, the U.S. government bears in mind the following considerations: Restitution laws should govern both communal property owned by religious and community organizations and private property owned by individuals and corporate entities; To document claims, access to archival records, frequently requiring government facilitation, is necessary; Reasonable alternative evidence must be permitted if archives have been destroyed; Uniform enforcement of laws is necessary throughout a country; The restitution process must be non-discriminatory; There should be no residence or citizenship requirement; Legal procedures should be clear and simple; Privatization programs should include protections for claimants; Governments need to make provisions for current occupants of restituted property; When restitution of property is not possible, adequate compensation should be paid; Restitution should result in clear title to the property, not merely the right to use the property; Communal property should be eligible for restitution or compensation without regard to whether it had a religious or secular use. Some limits on large forest or agricultural holdings may be needed; Foundations managed jointly by local communities and international groups may be appropriate to aid in the preparation of claims and to administer restituted property; Cemeteries and other religious sites should be protected from desecration or misuse before and during the restitution process. The United States has been encouraged with the progress many countries have made on this difficult, complex and frequently controversial issue. Still, there is a great deal of work to be done in this area. Some countries still do not have property restitution laws.

Others have laws in place but have found it difficult to administer existing laws in a non-discriminatory manner. Achieving passage and effective, timely implementation of restitution laws and procedures is both a critical indicator of rule of law in a democratic society and a crucial feature of a market economy. (Source: https://2001-2009.state.gov/p/eur/rls/or/93062.htm - accessed on 16 Oct 2016). In addition, The Rome Statute of the International Criminal Court specifically addresses a series of acts and omissions relating directly to HLP rights which could even constitute international crimes. (See: Displacement Solutions, Housing, Land and Property Rights and International Criminal Justice: Holding HLP Rights Violators Accountable, September 2012).

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The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949) is particularly clear in prohibiting activities involving arbitrary displacement and the destruction of property. Art. 33 No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.

Pillage is prohibited. Reprisals against protected persons and their property are prohibited; Art. 49 …Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased…..The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies; Art. 53 Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered necessary by military operations; Art. 147 Grave breaches … shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: ….extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. In addition, Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (1977) further strengthens these principles: Art. 17 (1) The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition. Art. 17(2) Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.

restitution as a remedy in terms of eventual Court decisions. The International Criminal Tribunal for the Former Yugoslavia has also explicitly included restitution of property amongst a range of possible remedies. These and many other international legal affirmations of HLP restitution, in part, also formed the basis for the 1998 UN Guiding Principles on Internal Displacement which explicitly address the question of restitution in Principles 28 and 29. These state: 10

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Principle 28 1. Competent authorities have the primary duty and responsibility to establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country.

Such authorities shall endeavour to facilitate the reintegration of returned or resettled internally displaced persons; 2. Special efforts should be made to ensure the full participation of internally displaced persons in the planning and management of their return or resettlement and reintegration.

Principle 29 1. Internally displaced persons who have returned to their homes or places of habitual residence, or who have resettled in another part of the country, shall not be discriminated against as a result of their having been displaced. They shall have the right to participate fully and equally at public affairs at all levels and have equal access to public services; and 2. Competent authorities have the duty and responsibility to assist returned and/ or resettled internally displaced persons to recover, to the extent possible, their property and possessions which they left behind or were dispossessed of, upon their displacement. When recovery of such property and possessions is not possible, competent authorities shall provide or assist these persons in obtaining appropriate compensation or another form of just reparation.

10 Art. 75(1) The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting. (2) The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in Article 79. (3) Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States. (UN Doc. A/CONF.183/9 (1998), 17 July 1998).

11 Article 105 of the Rules of Procedure and Evidence of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 (adopted 11 February 1994) permits the Tribunal, in conjunction with a judgment of conviction, to award the restitution of property or its proceeds to victims, even property in the hands of third parties not otherwise connected with the crime of which the convicted person has been found guilty. In the context of the Rwanda Tribunal, one of the categories for prosecution is the destruction of property.

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17. In turn, the Guiding Principles helped subsequently to inspire two vital standards on restitution, both of which were approved by the UN in 2005. The UN General Assembly adopted and proclaimed the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, which in para. 19, addresses restitution in the following terms: Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property. (emphasis added) 12

18. The Basic Principles and Guidelines also provide a detailed synthesis of international human rights and humanitarian law as they relate to remedies, including restitution: 15. Adequate, effective and prompt reparation shall be intended to promote justice by redressing violations of international human rights or humanitarian law.

Reparation should be proportional to the gravity of the violations and the harm suffered.

16. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for its acts or omissions constituting violations of international human rights and humanitarian law norms.

17. In cases where the violation is not attributable to the State, the party responsible for the violation should provide reparation to the victim or to the State if the State has already provided reparation to the victim.

18. In the event that the party responsible for the violation is unable or unwilling to meet these obligations, the State should endeavor to provide reparation to victims who have sustained bodily injury or impairment of physical or mental health as a result of these violations and to the families, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of the violation. To that end, States should endeavor to establish national funds for reparation to victims and seek other sources of funds wherever necessary to supplement these.

19. A State shall enforce its domestic judgments for reparation against private individuals or entities responsible for the violations. States shall endeavor to enforce valid foreign judgments for reparation against private individuals or entities responsible for the violations.

20. In cases where the State or Government under whose authority the violation

12 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005. (http://www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx).

occurred is no longer in existence, the State or Government successor in title should provide reparation to the victims.

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21. In accordance with their domestic law and international obligations, and taking account of individual circumstances, States should provide victims of violations of international human rights and humanitarian law the following forms of reparation: restitution, compensation, rehabilitation, and satisfaction and guarantees of non-repetition.

19. These points were further refined in the United Nations Principles on Housing and Property Restitution (Pinheiro Principles). In the 17 years since their adoption, the UN’s 2005 Pinheiro Principles have proven a valuable globally applicable text which provides a normative framework to enable the promise of restitution to become reality. These vital principles have been widely and consistently re-affirmed by the United Nations system as well as many Member States of the UN. Over the past two decades, inter-governmental agencies, government officials, United Nations and NGO field staff and others working in protection or support capacities with refugees and IDPs have become increasingly involved in efforts to secure durable, rights-based solutions to all forms of displacement based on the restoration of possession of one’s original home is the preferred remedy to displacement.

The Pinheiro Principles expand and clarify the rights of all refugees and displaced persons ‘to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived’. The Principles begin by emphasising their broad scope and application in their key objective of assisting relevant national and international actors to adequately address the legal and technical issues linked to the restitution rights of refugees and displaced persons. The Principles are inclusive in nature and apply in situations where displacement has resulted in people ‘arbitrarily’ or ‘unlawfully’ being deprived of their former homes, lands, properties or places of habitual residence. In practical terms, therefore, this standard applies to all refugees and displaced persons forcibly removed from or otherwise forced to flee their ‘homes, lands, properties or places of habitual residence (…) regardless of the nature or circumstances by which displacement originally occurred’. The Principles apply in all cases of involuntary displacement resulting from international or internal armed conflict, gross human rights violations such as ‘ethnic cleansing’, development projects, acts of land confiscation resulting in displacement, forced evictions and natural and manmade disasters. Whenever a person or community is arbitrarily displaced from their homes and lands the Principles can be used as guidance for how best to return the situation to what it once was. In recognising the restitution rights of all refugees and displaced persons with HLP losses in need of reversal, the Principles do not distinguish between categories of displaced persons in terms of defining their restitution rights. This is an important expansion of the language frequently used to describe displacement, which often refers more limitedly to ‘refugees and internally displaced persons.’ The Principles, however, use the simplified 13

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13 See Annex 1 below for the full text of the Principles. See also: The Final Report of the Special Rapporteur on Housing and Property Restitution in the Context of the Return of Refugees and Internally Displaced Persons (E/CN.4/Sub.2/2005/17 and E/CN.4/ Sub.2/2005/17/Add.1).

14 UN document: E/CN.4/Sub.2/2005/17 (28 June 2005).

15 Khaled Hassine and Scott Leckie, The United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons: A Commentary (International Studies in Human Rights, Vol. 114), Brill/Nijhoff, 2015.

Image: © Kadir Van Lohuizen. Sheikh Ajleen, Gaza Strip, Palestine - January, 2009.

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but more expansive language of ‘refugees and displaced persons’. Ultimately, the Principles take the perspective that neither war, human rights abuses, development nor disaster are in and of themselves justifiable grounds upon which to legitimise the arbitrary or unlawful acquisition, expropriation or destruction of homes and lands over which refugees and displaced persons continue to retain rights. Grounded firmly in existing international law, policy and best practices, the Principles recognise the fundamental nature of housing, land and property restitution as a key concern of States and the international community, and ultimately as a fundamental feature of sustainable peace and development.

20. A range of institutions have also directly addressed HLP restitution as rights. For instance, the UN Committee on the Elimination of Racial Discrimination (CERD) in General Recommendation No. 22 (1997) (Article 5 on refugees and displaced persons), recognizes that refugees and displaced persons have the “right freely to return to their homes of origin under conditions of safety; States parties are obliged to ensure that the return of such refugees and displaced persons is voluntary and to observe the principle of non-defilement and non-expulsion of refugees; All such refugees and displaced persons have, after their return to their homes of origin, the right to have restored to them property of which they were deprived in the course of the conflict and to be compensated appropriately for any such property that cannot be restored to them. Any commitments or statements relating to such property made under duress are null and void; (d) All such refugees and displaced persons have, after their return to their homes of origin, the right to participate fully and equally in public affairs at all levels and to have equal access to public services and to receive rehabilitation assistance.” CERD expressed similar sentiments in General Recommendation No. 23 (1997) (on indigenous peoples), which outlines the rights of indigenous peoples to have any lands and territories which they were deprived from, restored to them. The Recommendation states, inter alia, “5. The Committee especially calls upon States parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.”

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21. Indeed, the international housing, land and property rights normative framework relevant to restitution is far more advanced and comprehensive than is often known. The HLP norms upon which much of the Principles are based, are found widely throughout international, regional, national and local law, within the legal regimes of human rights law, humanitarian law, refugee law, criminal law, constitutional law and civil law, giving further strength to arguments favouring the establishment of a new agency designed to tackle unresolved restitution claims. This extensive normative framework is useful in developing consistent 17

16 See: UN Doc. A/52/18, annex V (1998), adopted 18 August 1997).

17 See, for instance: FAO, IDMC, OCHA, OHCHR, UN-Habitat and UNHCR, Handbook on Housing and Property Restitution for Refugees and Displaced Persons - Implementing the Pinheiro Principles, March 2007; International Center for Transitional Justice, The Contemporary Right to Property Restitution in the Context of Transitional Justice, New York, May 2007; and Leckie, S., Housing, Land and Property Rights in Post-Conflict Societies: Proposals for a New United Nations Institutional Policy Framework, UNHCR, 2005.

and clear approaches to restitution. Some of the specific rights that are clearly enshrined within these regimes include the right to voluntary return/repatriation, the right to adequate housing and security of tenure, the right to be protected against forced eviction, the right not to be arbitrarily deprived of one’s property and others. These rights can be seen as the core HLP rights that need to be considered in developing laws, policies and procedures on restitution, four of which are particularly relevant to the eventual establishment of a new World Restitution Agency: 22. The Right to Voluntary Return/Repatriation: The right of refugees and IDPs to voluntarily return to their homes is one of the primary HLP restitution rights. Widely reaffirmed in numerous human rights standards, the right to voluntary return forms a cornerstone of the Pinheiro Principles, in Principle 10. These provisions reflect the transformation of the right to voluntary return (or repatriation) into a concept involving not simply the return to one’s country or region of origin, but to one’s original home, land or property. Increasingly, therefore, return rights and HLP restitution rights need to be treated in tandem with one another. At the same time, the right to voluntary return – whether for refugees or displaced persons – is indeed not an obligation to return. Return cannot be restricted, and conversely it cannot be imposed. It must be a free choice by those concerned, and procedures and mechanisms need to be developed to ensure that this right can be secured for all who wish to assert it. Practice clearly indicates that the presence of a viable and all-inclusive restitution programme will facilitate voluntary repatriation.

23. The Right to Adequate Housing and Security of Tenure: The right to adequate housing is found throughout international human rights law, most notably in Article 25(1) of the Universal Declaration on Human Rights in 1948, and Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Those entitled to the right to adequate housing are legally entitled to housing that is adequate. Under General Comment No. 4, adequacy has been specifically defined to include: security of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility; location; and cultural adequacy, and this would apply to returning refugees and IDPs as much as it would to any other persons. Governmental obligations derived from this right include duties to take measures to confer security of tenure (and consequent protection against arbitrary or forced eviction and/or arbitrary confiscation or expropriation of housing); to prevent discrimination in the housing sphere; to ensure equality of treatment and access vis-à-vis housing; to protect against racial discrimination; to guarantee housing affordability; and many others. Returnees and displaced persons generally, as well as all other rightsholders, need to be assured that these rights will be protected and secured.

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24. The Right to be Protected Against Forced Evictions: Building on the legal foundations of the rights to adequate housing and secure tenure, international standards increasingly assert that forced evictions constitute ‘a gross violation of human rights, in particular the

18 Beyond the Universal Declaration and the Covenant, rights to housing are found in the Convention on the Elimination of All Forms of Racial Discrimination (art. 5(e)(iii)), the Convention on the Rights of the Child (art. 27(3)); the Convention on the Elimination of All Forms of Discrimination Against Women (art. 14(2)), the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (art. 43(1)(d)), ILO Recommendation No. 115 on Workers’ Housing and many other standards.

19 General Comment No. 4 on the Right to Adequate Housing (1991), Para. 8.

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right to adequate housing’. The 1998 UN Guiding Principles on Internal Displacement adopt a similar perspective and state clearly in Principle 6 that ‘Every human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence’. UN General Comment No. 7 on Forced Evictions (1997) issued by the UN Committee on Economic, Social and Cultural Rights, is perhaps the most detailed statement interpreting the view of international law on this practice, re-affirming the sentiments of the 1991 General Comment No. 4 that: ‘[t]he Committee considers that instances of forced evictions are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law (para. 18)’. General Comment No. 7 goes one step further in demanding that ‘the State itself must refrain from forced evictions and ensure that the law is enforced against its agents or third parties who carry out forced evictions’.

The Comment requires countries to ‘ensure that legislative and other measures are adequate to prevent and, if appropriate, punish forced evictions carried out, without appropriate safeguards by private persons or bodies’.

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25. The Right Not to be Arbitrarily Deprived of One’s Property: Closely related to the security of tenure question, and rights to privacy and respect for the home, the right not to be arbitrarily deprived of one’s property is widely addressed throughout human rights law. It is in determining the scope of both the rights of individuals and those of the State that we can determine which measures resulting in land confiscation and subsequent displacement are truly justifiable and which are not. While land acquisition/confiscation is not in and of itself a prohibited act, under human rights law it is subject to increasingly strict criteria against which all such measures must be judged to determine whether or not they are lawful. The power of States to expropriate carries with it five fundamental pre-conditions, namely when housing, land or property rights are limited, this can only be carried out when the expropriation concerned is: 1) subject to law and due process; 2) subject to the general principles of international law; 3) in the interest of society and not for the benefit of another private party; 4) proportionate, reasonable and subject to a fair balance test between the cost and the aim sought; and 5) subject to the provision of just and satisfactory compensation. Every act of land confiscation, acquisition, grabbing, expropriation and forced or arbitrary displacement can be assessed against these five pre-conditions.

26. These and similar HLP principles have been repeatedly reaffirmed, and are each in their own way fundamental to any quest for all-inclusive restitution. In terms of jurisprudence supporting the position that restitution constitutes a primary remedy for violations of 22

20 A 2004 UN Commission on Human Rights resolution on the ‘Prohibition of forced evictions’, for instance, rather unequivocally reaffirms ‘that the practice of forced eviction that is contrary to laws that are in conformity with international human rights standards constitutes a gross violation of a broad range of human rights, in particular the right to adequate housing’, and which also urged Governments ‘to undertake immediately measures, at all levels, aimed at eliminating the practice of forced eviction by, inter alia, repealing existing plans involving forced evictions as well as any legislation allowing for forced evictions, and by adopting and implementing legislation ensuring the right to security of tenure for all residents, [and to] ‘protect all persons who are currently threatened with forced eviction and to adopt all necessary measures giving full protection against forced eviction, based upon effective participation, consultation and negotiation with affected persons or groups’. Commission on Human Rights Resolution 2004/28 (10 April 2004).

21 UN Committee on Economic, Social and Cultural Rights, General Comment No. 7 (1997) - The right to adequate housing (Art. 11 (1) of the Covenant): forced evictions (UN doc. E/C.12/1997/4), adopted 16 May 1997 by the UN Committee on Economic, Social and Cultural Rights at its’ 16th session, held in Geneva).

22 For instance, in the Restatement of Foreign Relations Law of the United States it is clearly stipulated that for a breach of international law, “[o]rdinarily, emphasis is on forms of redress that will undo the effect of the violation, such as restoration of the status quo ante,

international law, the Permanent Court of International Justice, as far back as 1928, famously ruled in the well-known Chorzów Factory (Indemnity) Case, that restitution was the preferred remedy for correcting illegal governmental takings of property. Thus, for any violation of international law – including the violation of a range of individual human rights norms such as those just outlined - redress that will undo the effect of the violation is required. These principles are evidence of the clear preference for restitution as a remedy for violations of international law, in particular those violations involving the illegal confiscation of housing, land or property. The legal doctrine of proportionality is also of vital importance in determining the legitimacy of cases dealing with housing, land or property losses in the context of restitution claims. In general terms, if State organs revoke any pre-existing rights to housing, land or property in an arbitrary manner or applied the law based upon racial, ethnic or national origin or other forms of discrimination, this would necessarily be classified as disproportionate and a deliberately retrogressive measure, and thus a violation of international law. Similarly, the now widely accepted fair balance doctrine stipulates that in determining the compatibility of a certain act by a State with regard to HLP issues, any interference in the exercise of these rights must strike a fair balance between the aim sought to be achieved and the nature of the act, particularly when a victim of land confiscation has suffered an individual and excessive burden because of the confiscation concerned.

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restitution, or specific performance of an undertaking” Restatement (Third) of Foreign Relations Law of the United States Sec. 432(2) (1987). While restitution can take various forms (even in the context of housing and property), in cases of illegally occupied territory, restitution in kind, i.e. the return of the territory, is the only ‘legal’ remedy, and thus all other potential remedies may not be appropriate in such cases. (Ian Brownlie (1983) Principles of Public International Law, Oxford, 210).

23 Chórzow Factory (Indemnity) Case (Germany v. Poland), 1928 PCIJ (ser. A) No. 17 (Judgment of Sept. 13 1928), p. 47. The Chorzów Factory case sets out what are widely agreed to be the basic remedial norms for violations of international law: “The principle contained in the actual notion of an illegal act – a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals – is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it – such are principles which should serve to determine the amount of compensation due for an act contrary to international law”. This case was based on the specific violation of a treaty. However, the Court’s decision concerning the appropriate remedy did not distinguish between treaty violations and any other violations of international law. As such, a violation of customary law would presumably be subject to the same remedial norm as a violation of a treaty. (See: Frederic L. Kirgis (2001) `Restitution as a Remedy in US Courts for Violations of International Law’ in American Journal of International Law, vol. 95, no. 2, p. 343).

24 In cases involving formal expropriation of housing, land or property – which in many cases is clearly legal under international law – illegal acts can and still do occur. According to one leading international lawyer “[i]nternational law will clearly be engaged where the expropriation is unlawful, either because of, for example, the discriminatory manner in which it is carried out or the offering of inadequate or no compensation.” (Malcolm N. Shaw (1997, 4th ed.) International Law, Cambridge University Press, p. 574). Shaw continues, stating that “[i]n the case of an unlawful taking, full restitution in kind or its monetary equivalent was required in order to re-establish the situation which would in all probability have existed if the expropriation had not occurred, while in the case of lawful taking, the standard was the payment of the full value of the undertaking at the time of dispossession” (p. 580), thus capturing another core element of the restitution process.

25 In determining the existence of fair balance, the European human rights bodies have noted there had been a violation of Article 1 of Protocol No. 1 (‘the peaceful enjoyment of possessions’) when no fair balance had been struck between the interest of protecting the right to property and the demands of the general interest as a result of the length of expropriation proceedings, the difficulties encountered by the applicants to obtain full payment of the compensation awarded and the deterioration of the plots eventually returned to them. (Zubani v. Italy (European Court on Human Rights, Judgment 7 August 1996)).

26 The European Court on Human Rights has also issued the following pronouncement with respect to the legitimacy of actions by the State resulting in the deprivation of property: ‘In this connection, the Court recalls that not only must a measure depriving a person of his property pursue, on the facts as well as in principle, a legitimate aim ‘in the public interest’, but there must also be a reasonable relationship of proportionality between the aim employed and the aim sought to be realized…The requisite balance will not be found if the person concerned has had to bear an individual and excessive burden…Clearly, compensation terms are material to the assessment whether a fair balance has been struck between the various interests at stake and, notably, whether or not a disproportionate burden has been imposed on the person who has been deprived of his possessions (Lithgow and others v. U.K (Judgment 8 July 1986, Series A, No. 102; (1986) 8 EHRR 329, Para. 120)).

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27. The particular remedy of restitution stems ultimately from the broader right to an effective remedy for violations of human rights; a core right pervading this entire body of law. This means, of course, that victims of wrongful acts and/or human rights violations – including the arbitrary loss of residential and other HLP assets and resources – must have an enforceable right to have the act or violation remedied, repaired and reversed.

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28. The restitution process, thus, effectively provides a formal and legal basis for de-legitimizing the arbitrary acquisition of territory, assets, immovable (and sometimes movable) property and lands, and for putting these goods back into the possession of those holding rights over them at the time of the initial confiscation. Restitution allows losses incurred due to wrongful acts to be reversed, and the situation returned to what it once was and should be in terms of law. The recognition of restitution rights often provides the first official pronouncement that whatever may have taken place in the past which is responsible for people being forced to vacate their homes was wrong and should not be allowed to occur again in the future. It also re-affirms the basic proposition that displaced persons should never be penalized or suffer detriment due solely to the fact that they were forced to flee their homes and lands. In the end, restitution is simply the right thing to do.

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29. These and other remedial norms, then, have evolved from general legal principles into increasingly specific areas of law and practice, now clearly pointing to the emergence of an explicit right of all categories of displaced persons to the restitution of housing, land or property. In other words, HLP restitution itself has been recognized not just as a preferred general legal remedy, but as a distinct right, above and beyond the purely remedial and general international legal contexts just noted. Many newer standards provide an even more direct generic normative link between the displaced and their rights to exercise housing, land and property restitution rights.

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27 A right to an effective remedy for victims of violations of international human rights law is found in the Universal Declaration of Human Rights (UDHR) (Art. 8), the International Covenant on Civil and Political Rights (CCPR)(Art. 2), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD)(Art. 6), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)(Art. 11), the Convention on the Rights of the Child (CRC)(Art. 39), the African Charter on Human and Peoples’ Rights (Art. 7), the American Convention on Human Rights (Art. 25), and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)(Art. 13).

28 Indicative of the growing seriousness accorded these issues by UNHCR, the agency issued an internal memorandum to all UNHCR offices throughout the world in late 2001 outlining UNHCR policy on the recovery of refugee homes and properties. (UNHCR InterOffice Memorandum No. 104/2001, 28 November 2001, UNHCR Field Office Memorandum No. 101/2001, 28 November 2001.) The memorandum contains a range of far-reaching provisions which reveal just how extensively housing and property restitution rights have percolated not only into law, but into the largest inter-Governmental agencies: “Recovery of refugees’ homes and property in their countries of origin needs to be addressed consistently to ensure that effective solutions to refugee displacement are found. Experience has shown that voluntary repatriation operations are unlikely to be fully successful or sustainable in the longer term if housing and property issues – being an integral part of return in safety and dignity – are left unattended.”

29 Such principles have been widely recognized. For instance, Article 4 of the Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), 1001 U.N.T.S. 45 (1969), entered into force June 20, 1974), asserts that: “Refugees who voluntarily return to their country shall in no way be penalized for having left it for any of the reasons giving rise to refugee situations”. Only recently, however, has the housing and property element of this duty not to penalize been included in this equation.

30 UN Sub-Commission on Protection and Promotion of Human Rights Resolution 1998/26 ‘Housing and property restitution in the context of the return of refugees and internally displaced persons’ (E/CN.4/Sub.2/Res/1998/26, adopted without a vote on 26 August 1998.

31 Id. In increasingly commonly heard language, this resolution: Reaffirms the right of all refugees, as defined in relevant international legal instruments, and internally displaced persons to return to their homes and places of habitual residence in their country and/ or place of origin, should they so wish. The resolution continues: 2. Reaffirms also the universal applicability of the right to adequate housing, the right to freedom of movement, the right to privacy and respect for the home and the particular importance of these rights for returning refugees and internally displaced persons wishing to return to their homes and places of habitual residence; 3. Confirms that the adoption or application of laws by States which are designed to or result in the loss or removal of tenancy, use, ownership or other rights connected with housing or property, the active retraction of the right to reside within a particular place, or laws of

30. Bearing all of this in mind, it is vital to point out that restitution as a legal principle and practice is far more common than is often realized. As we have seen, many international standards address restitution issues, but so to do dozens of peace agreements and voluntary repatriation agreements also enshrine restitution rights for returning refugees and internally displaced persons. Scores of resolutions adopted by the UN Security Council and UN General Assembly also address restitution concerns, as do numerous texts approved by various UN human rights bodies. The UN Security Council has repeatedly asserted restitution rights, inter alia, in Yugoslavia (Kosovo) , Georgia (Abkhazia) , Croatia , Iraq (Kuwait) , Cyprus and in many other contexts. Likewise, the General Assembly has also regularly addressed these rights. In addition to these formulations of HLP restitution rights, a series of voluntary repatriation agreements also address refugee return in these terms. While not all such agreements involving the return of refugees to their countries of origin include explicit reference to issues of housing, land and property restitution, the clear trend over time leans heavily toward the inclusion of these issues, although their content varies across the agreements. There is an equally strong trend for more recent repatriation agreements to include such references; a further indication of the growing acceptance of norms recognizing that the right to return and voluntary repatriation include the right to return to one’s original homes and lands from which they were originally displaced. Among the voluntary repatriation agreements that explicitly recognize the rights of returning 32

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abandonment employed against refugees or internally displaced persons pose serious impediments to the return and reintegration of refugees and internally displaced persons and to reconstruction and reconciliation; 4. Urges all States to ensure the free and fair exercise of the right to return to one’s home and place of habitual residence by all refugees and internally displaced persons and to develop effective and expeditious legal, administrative and other procedures to ensure the free and fair exercise of this right, including fair and effective mechanisms designed to resolve outstanding housing and property problems….

32 Scott Leckie (2007) Housing, Land and Property Restitution Rights for Refugees and Displaced Persons: Laws, Cases and Materials (editor), Cambridge University Press.

33 SC Res. 1244 (1999) (Kosovo), UN Doc. S/RES/1244 (1999), 10 June 1999: The Security Council, Determined to resolve the grave humanitarian situation in Kosovo, Federal Republic of Yugoslavia, and to provide for the safe and free return of all refugees and displaced persons to their homes, Reaffirming the right of all refugees and displaced persons to return to their homes in safety….9.

Decides that the responsibilities of the international security presence to be deployed and acting in Kosovo will include: …(c) Establishing a secure environment in which refugees and displaced persons can return home in safety, the international civil presence can operate, a transitional administration can be established, and humanitarian aid can be delivered; 11. Decides that the main responsibilities of the international civil presence will include: (k) Assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo….13. Encourages all Member States and international organizations to contribute to economic and social reconstruction as well as to the safe return of refugees and displaced persons.

34 SC Res. 876, 19 October 1993; SC Res. 1036 (1996) (regarding Abkhazia and the Republic of Georgia), 12 January 1996; SC Res. 971 (1995) (regarding Abkhazia and the Republic of Georgia), 12 January 1995: The Security Council, Reaffirming also the right of all refugees and displaced persons affected by the conflict to return to their homes in secure conditions in accordance with international law and as set out in the Quadripartite Agreement on voluntary return of refugees and displaced persons (S/1994/397, annex II), signed in Moscow on 4 April 1994.

35 SC Res. 1009 (1995) (regarding the Republic of Croatia) (relevant provisions), adopted 10 August 1995: The Security Council, Deeply concerned at the grave situation of persons displaced from their homes as a result of the conflict and at reports of violations of international humanitarian law….2. Demands further that the Government of the Republic of Croatia, in conformity with internationally recognized standards and in compliance with the agreement of 6 August 1995 between the Republic of Croatia and the United Nations Peace Forces (a) respect fully the rights of the local Serb population including their rights to remain, leave or return in safety, (b) allow access to this population by international humanitarian organizations, and (c) create conditions conducive to the return of those persons who have left their homes.

36 SC Res. 687 (1991) (regarding Kuwait), adopted 2 March 1991 The Security Council….15. Requests the Secretary-General to report to the Security Council on the steps taken to facilitate the return of all Kuwaiti property seized by Iraq, including a list of any property that Kuwait claims has not been returned or which has not been returned intact.

37 SC Res. 361, 30 August 1974: Calls on parties to ‘permit persons who wish to do so to return to their homes’.

38 Perhaps few UNGA resolutions are as well-known as its 1948 resolution 194 (III)(Palestine) which, of course, ‘Resolves that the refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible’. (UN doc: A/Res/194 (III) (1948), adopted 11 December 1948.

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refugees to return to their original homes, and to recover housing, land and properties which were confiscated and/or occupied by secondary occupants, are agreements concerning refugees from Liberia, Angola, Rwanda, Georgia, Abkhazia and the Russian Federation, Myanmar, Mozambique and Zimbabwe, Afghanistan and Iran, Congo and Guatemala. In recent years, restitution considerations have been included in peace agreements or other agreements concerning the ending of armed conflicts in Kosovo, Bosnia and Herzegovina, Guatemala, Mozambique, Cambodia, Ethiopia and Eritrea and others.

31. This cross-section of macro-level standards ranging from international legal rules on State responsibility to legal remedies and from UN standards to voluntary repatriation and peace agreements reveal the increasingly common integration of these norms into a new consolidated norm recognizing that refugees and IDPs arguably now possess both an implicit and explicit right to HLP restitution. However, in contrast to so many other new principles developed at the international level, this norm has been actively asserted and applied to innumerable national contexts involving refugee and IDP restitution. And yet, much remains to be achieved.

III. CONTEMPORARY INSTITUTIONAL ENGAGEMENT ON RESTITUTION

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32. Since 1990 many countries have undertaken different types of restitution programmes, including Afghanistan, Albania, Armenia, Azerbaijan, Bosnia-Herzegovina, Bulgaria, Colombia, Czech Republic, Estonia, Georgia, Germany, Iraq, Kosovo, Romania, Rwanda, South Africa, South Sudan, Tajikistan and elsewhere. Political reform and peace processes in a range of countries led to the establishment of dedicated commissions and other bodies (including adjudicative bodies entrusted with making binding determinations) designed to facilitate the rights of returnees to return to, reclaim and re-possess their original homes.

It is at the national level that the restitution story begins to get particularly interesting, for this is where the strongest evidence of the emergence of a new, practical and enforceable norm can be found. Under the 1995 Dayton Accords concerning Bosnia and Herzegovina, in what is perhaps the most well known case of post-conflict HLP restitution, “All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them”. In Kosovo, all those displaced during the 1999 air war were granted rights to return to their original homes. In Mozambique, Guatemala, Tajikistan, and elsewhere returning refugees were entitled to repossess their former homes and lands, even when they had possessed no formal titles to the homes or lands in question.

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33. Mass claims mechanisms, in particular, have offered important advantages for the resolution of large groups of claims. Specialized HLP restitution bodies created to achieve these objectives have been created in Bosnia and Herzegovina (Commission on Real Property 41

39 See, for instance, the incredibly detailed volumes by Margaret Cordial and Knut Rosandhaug, Post-Conflict Property Restitution: The Approach in Kosovo and Lessons Learned for Future International Practice (Volumes 1 & 2), Martinus Nijhoff Publishers, 2009 which outline one of the many restitution programmes put in place since 1990.

40 General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 7 Agreement on Refugees and Displaced Persons (1995).

Also of note, those possessing a type of housing tenure classified as ‘occupancy rights’ (a right in strength somewhere between private property and traditional tenancy rights, found nowhere else in the world) were as entitled to return to their original homes as private owners.

41 These bodies define types of claims, according to the needs of a particular situation involving large-scale dispossession and thus involving the systematic disrespect of basic principles of justice. Mass claims mechanisms assume that systematic patterns of abuse was the rule rather than the exception and reverses the burden of proof. Hence, defining the scope of the claim allows their grouping and a speedy decision making process on claims that present similar merits. Moreover, the processing of claims, including the provision of information to claimants, is computerized, increasing effectiveness and accessibility. Claimants often benefit from a free of charge process in which the investigation is carried out by the administrative body. The claimant does not need to hire a private lawyer for his or her claim. Moreover, the establishment of offices and mobile units allows the mechanism to reach displaced persons. See: Arraiza, Jose-Maria and Moratti, Massimo, ‘Getting the Property Questions Right: Legal Policy Dilemmas in Property Restitution in Kosovo (1999-2009)’, 21 (3) International Journal on Refugee Law, 421–452, 429.

Image: © Kadir Van Lohuizen. A woman in Aita Chaab sits amidst the ruins of her house.

Aita Chaab is a village on the border with Israel.

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Claims) , Burundi (National Commission for the Rehabilitation of Sinistrés), Colombia (The land Restitution Unit), Georgia (Commission on Restitution and Compensation), Iraq (Iraq Property Claims Commission), Kosovo (Housing and Property Directorate and Housing and Property Claims Commission) , (South) Sudan (Land Commissions), Tajikistan (Local Courts), among many others. Similar bodies have been proposed in during peace talks and during phases of transition in Cyprus, Sri Lanka, Timor Leste and elsewhere.

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34. A situation has arisen, thus, where specific norms, bodies and procedures have been created, while simultaneously large numbers of people have returned to and reclaimed their former places of residence or received just and satisfactory compensation in countries ranging from Bosnia and Herzegovina to Tajikistan and from South Africa to Kosovo. Under the restitution processes in Germany (concerning former East Germany) claims were made for 2.7 million pieces of property. In the Czech Republic property collectively valued at US$ 10.7 billion has been successfully restored to its former owners, and Estonia where more than 200,000 applications for the restitution of 160,000 properties were received by the bodies responsible for managing the nationwide restitution program. In Colombia, up to 360,000 households or 1.5m people may be eligible for restitution under the restitution programme there. Also in Colombia, an important judicial decision reveals that: “The right to the restitution of the property which the people have been plundered, is also a fundamental right…Article 17 of the Protocol Additional to the Geneva Conventions, the UN Guiding Principles on Internal Displacement (21, 28 and 29), and the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons [Pinheiro Principles], constitute part of the constitutional framework, as they represent developments adopted by the international doctrine on the fundamental right to integral reparation for harm caused.”

Many but not all restitution programmes implemented over the past several decades have tended to focus on forced displacement and subsequent HLP losses generated by conflict.

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35. Norms and facts, thus, have increasingly intersected, and lofty sounding laws on restitution have actually been taken seriously and enforced. The point here, therefore, is that during the last three decades an historic shift took place where – at least as far as restitution is concerned – some of the world’s politically least organized and economically weakest and

42 Article XI of the Mandate outlines the key function of the CRPC: “The Commission shall receive and decide any claims for real property in Bosnia and Herzegovina, where the property has not voluntarily been sold or otherwise transferred since April 1, 1992, and where the claimant does not now enjoy possession of that property. Claims may be for return of the property or for just compensation in lieu of return.” The CRPC developed a sophisticated series of criteria and eligibility procedures enabling it to make binding legal decisions on the rights of individual refugees to return to their homes of origin within six weeks after taking the claims. For an overview of the work of the CRPC, see: Madeline Garlick (2000) ‘Protection for Property Rights: A Partial Solution? The Commission for Real Property Claims of Displaced Persons and Refugees (CRPC) in Bosnia and Herzegovina’, Refugee Survey Quarterly, volume 19, number 3, pp. 64-85. The housing and property claims were computerized and checked against property records held at various levels of government using the expertise of an ethnically balanced group of local lawyers. Under Dayton, the decisions of the CRPC were final and binding on all local authorities and as such, any title, deed, mortgage, or other legal instrument created or awarded by them had to be recognized as lawful throughout the country. The CRPC claims system allows anyone who believed their homes, lands and properties to have been either confiscated or occupied illegally by others to put their case before this independent body. (See: CRPC (2000) Promoting a Unified Real Property Market in Bosnia and Herzegovina.

43 In Kosovo, the Housing and Property Directorate (HPD) and the Housing and Property Claims Commission (HPCC), modeled loosely on the CRPC, were established several months following the creation of the United Nations Mission in Kosovo (UNMIK) in 1999. See: UNMIK Regulation No. 1999/23 On the Establishing of the Housing and Property Directorate and the Housing and Property Claims Commission (15 November 1999). See also: UNCHS (Habitat) Kosovo Program (22 Sept. 1999) Establishing the UNMIK Housing and Property Directorate (HPD).

44 See, for instance: Blacksell, Born and Bohlander (1996), Settlement of Property Claims in Former East Germany, in Geographical Review, vol. 86(2), pp. 198-215.

45 MP Catalina Botero Decision T-821 of 2007 (Constitutional Court of Colombia) 43.

most vulnerable groups, were enabled to assert claims and recover HLP rights that in earlier eras would have been virtually impossible to even contemplate. From the age-old tendency of ‘once displaced, always displaced’, we have been transported to a period more aptly captured by ‘once displaced, increasingly entitled to and assisted to return home’. And, yet, it would be wrong to pretend that the restitution process has always gone smoothly, been entirely equitable or universally enjoyed by all of those with rights to return to their original homes. The struggle for restitution remains. Nevertheless, this should not detract from the significance of the new embrace of restitution as a right for ever-increasing proportions of the displaced. This physical reversal of former acts of injustice – in this case the arbitrary theft, occupation or expropriation of one’s home and lands, without justification or compensation - represents nothing less than a human rights milestone in terms of actually undoing infringements of human rights law.

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36. One obvious key aim of any restitution process anywhere is to create both the legal and social realities in the country to ensure the non-repetition of the actions that generated the forced displacement in the first place. In other words, a restitution process serves not only the purpose of securing a sense of justice (sometimes called ‘residential justice’) for those with successful restitution claims, but strengthens the prospects of peace and reconciliation, as well as the rule of law by creating conditions that prevent or at least strongly discourage similar forms of forced displacement in the future. Successful restitution ensures HLP rights and security of tenure for everyone, the formal resolution of all outstanding restitution cases, and a permanent end to all the types of acts that generated restitution claims in the first place whereby land acquisition is only ever carried out as a last resort.

37. It is often forgotten that since 1990 literally millions of people have returned to and reclaimed their former places of residence in countries ranging from Bosnia and Herzegovina to Tajikistan and from South Africa to Kosovo. These are just some of the restitution advances of the recent past. To these could be added numerous other assertions of restitution rights by groups more used to exploitation and oppression than fairness and justice It is important to recognize this development, but even more so to attempt to understand why this taken place, and to chart whether these positive changes are likely to be permanent, or just a temporary passing phase of finite justice.

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.48

38. As we have seen, from the end of the Cold War in 1989 until the early 2010’s the restitution world went through an extraordinarily dramatic phase whereby countless new laws, rules, procedures, petition measures, committees, commissions and other attributes of restitution came into being in what was clearly an historic period whereby justice won out over crime, whereby people desperate to return to their original homes and lands actually were able to do so and whereby the refined tools of human rights law actually overpowered the more

46 For a thorough study of the progress on human rights remedies, see: Dinah Shelton (2000) Remedies in International Human Rights Law, Oxford University Press, Oxford.

47 Other examples include: Under the restitution processes in Germany (concerning former East Germany) (See: Blacksell, Born and Bohlander (1996), ‘Settlement of Property Claims in Former East Germany, in Geographical Review, vol. 86(2), pp. 198-215) claims were made for 2.7 million pieces of property. In the Czech Republic property collectively valued at US$ 10.7 billion has been successfully restored to its former owners, and Estonia where more than 200,000 applications for the restitution of 160,000 properties were received by the bodies responsible for managing the nationwide restitution program.

48 For a thorough study of the recent progress on human rights remedies, see: Dinah Shelton (2000) Remedies in International Human Rights Law, Oxford University Press, Oxford.

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crude implements of ethnic cleansing, theft, land grabbing, implantation of settlers and pure and raw economic power whereby evil acts and horrendous crimes were reversed and situations returned to how they once were, implementing the meaning and intent of restitution or restoring the past to a place before the crime at hand took place. This was a truly momentous time in history, but as positive as these advances were, something strange happened from roughly 2010 onwards. Despite the plethora of advances in law, policy and practice, as well as a series of films, books and other publications on restitution entrenching HLP restitution further into the corpus of international law, much of this progress came to a grinding and tragic halt leaving tens of millions of displaced persons without a remedy to their displacement and, more often than not, with their places of habitual residence taken from them without compensation or procedure, leaving them destitute, hopeless and all too often without a viable future. Millions upon millions of people are still waiting, therefore, for residential justice.

39. Many obstacles are put in the way of restitution by those seeking to maintain control over housing, land and property subject to restitution claims by those forced from their homes, and it will be in confronting and overcoming these obstacles alone that would justify the establishment of a new restitution agency. These include, for instance: abandonment laws shifting ownership and occupancy rights to current occupants after the passage of a certain period of time, notwithstanding the physical impossibility of a claimant legally or otherwise making a claim; the secondary occupation of homes by those who may have humanitarian needs for shelter but for whom no alternative is available; racial, gender, ethnic or other forms of discrimination by the dominant group in control against those forced from their homes, particularly in the context of ethnic cleansing; inconsistent legal and regulatory frameworks that cause legal and judicial confusion and delays and in the process restricting restitution rights from being enforced; arbitrary applications of law which are enforced in favour of some groups but applied differently to members of other groups; the large-scale damage and destruction of housing, land and property; the loss or destruction of official records and other evidence of ownership and residence; the absence of effective remedies and independent judiciaries; forced ‘contracts’ of sale made under duress at the time of flight and afterwards; unclear issues of title; mid-displacement privatization of housing, land and property prior to restitution claims being made; unfair inheritance laws; unresolved citizenship and nationality issues; lack of inter-agency coordination; structural inequitable treatment of owners, tenants and irregular occupants of land; and the costs of administering restitution mechanisms .49

40. Because of these obstacles, millions upon millions of people are living their lives today with unresolved HLP restitution claims. These are millions upon millions of people, millions of families and households, therefore, for whom the legal and judicial effective remedies promised to them under international human rights law are unfulfilled. Among other international texts, the Pinheiro Principles are unambiguously clear in asserting the necessity of establishing national restitution procedures, institutions and mechanisms (Prin. 12); establish or re-establish national multipurpose cadastral or other appropriate systems for the

49 See, for instance, Khaled Hassine, Housing & Property Directorate in Kosovo, Band 21, Universitaet Wien, 2009.

Image: © Kadir Van Lohuizen.

registration of housing, land and property rights as an integral component of any restitution programme, respecting the rights of refugees and displaced persons when doing so (Prin.

15) and that the international community should promote and protect the right to housing, land and property restitution, as well as the right to voluntary return in safety and dignity (Prin. 22). And yet if we contrast how restitution is being treated today from an institutional perspective, it is obvious that the humanitarian world is not living up to expectations and as a result, millions of people who should be getting their homes, lands and properties back, are still waiting.

41. Moreover, if we approach the issue of restitution purely through the lens of the claimant and attempt - as difficult as this may realistically be for anyone who has not suffered ethnic cleansing, been on the losing end of a land grab or been forced to flee their ancestral homes due to circumstances far beyond their control - to stand in the shoes of anyone with what they believe to be an outstanding and unresolved restitution claim, it is beyond obvious that most people seeking restitution do not either have a judicial or other remedy available to them, but they even lack an institutional champion who will advocate on their behalf seeking residential justice to those seeking to return home. In 2022, realistically, where does a Palestinian refugee turn as they seek justice for the land and homes taken by Israel since 1948? Where does a Syrian refugee go seeking justice for the lost homes they cannot return to because of which side they may have supported during the brutal civil war there? Where can an ethnic Nepali Bhutanese go to get compensation for the thousands of properties they were forced to leave behind as they were purged from the country in the 1980s. What about a Serb forced from their homes in Kosovo or a Georgian unable to return to South Ossetia, a Crimean Tatar who cannot come home to Crimea or an Afghan forced to flee to save their lives? International law is crystal clear that every human rights violation demands an effective remedy, but for the world’s displaced they may find a durable solution, but that should never be seen as an effective remedy for the crimes that took place linked to their places of habitual residence. This group of people with unresolved restitution claims is not getting smaller, far from it; it grows with each passing year and yet the institutions needed to generate real and sustained pressure to secure for them some sense of justice and remedial action remains lacking. One measure that just might make a difference would be the establishment of a new World Restitution Agency.

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IV. UNRESOLVED RESTITUTION CASES TODAY 42. Although there is no global monitoring body in place today that keeps track of the number of outstanding or unresolved restitution claims that displaced persons and refugees could lodge or have lodged, as of late 2021, the total number of globally displaced persons was approximately 82.4 million people. The independent Internal Displacement Monitoring Centre (IDMC) and UNHCR estimate the total number of IDPs to be 55 million and 48 million people respectively. The IDMC attributes approximately 82% of all displacement to conflict and 18% to disasters. Dividing a country’s total displaced population by the global average for number of persons per household, 4.9, provides a reasonably accurate number for the total global number of restitution claims to be a minimum of 16.8 million outstanding cases currently without resolution. The table below illustrates the number of unresolved restitution cases in several countries that are facing significant issues with displacement.

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DISPLACED PERSONS - DECEMBER 2020 Country

Conflict IDPs

Disaster IDPs

Refugees & Asylum Seekers

Total Possible Claims 51

Syria

6,568,000

n/a

13,364,720

2,727,494

Afghanistan

3,547,000

1,117,000

7,497,565

1,530,115

Dem. Rep. Congo

5,268,000

64,000

6,317,799

1,289,347

Palestine

131,000

10

5,756,332

1,316,083

Colombia

4,922,000

21,000

5,203,770

1,061,994

Yemen

3,635,000

223,000

3,912,906

798,552

Somalia

2,968,000

n/a

3,836,365

782,932

South Sudan

1,436,000

106,000

3,735,678

762,383

Sudan

2,276,000

454,000

3,587,426

732,128

Nigeria

2,730,000

143,000

3,299,013

673,268

Ethiopia

2,060,000

633,000

2,969,402

606,000

50 https://www.pewforum.org/2019/12/12/religion-and-living-arrangements-around-the-world/ 51 The Total Claims Possible figure is calculated by combining all IDP with the number of refugees and asylum seekers. This number is divided by the State’s specific average persons per household to arrive at the total number of claims possible.

Myanmar

505,000

50,000

1,143,453

233,358

43. To understand whether current institutions are sufficient to handle the large number of restitution cases available, one can simply analyse the number of claims processed by historical restitution bodies. The table below displays, for a sample of restitution mechanisms, the number of claims processed, the total number of available claims, and the number of eligible claims that were not processed.

SELECTED HISTORICAL RESTITUTION DATA Country

Claims Processed

Total Claims

Eligible Claims not Processed

240,233

528,846

288,462

42,751

115,340

72,589

Iraq

142,000

781,843

639,843

Colombia

360,000

2,409,300

2,049,300

South Africa

80,664 54

366,378

285,714 55

1,350,000

2,700,000

1,350,000 56

10,38757

200,000

189,613 58

Bosnia and Herzegovina 52 Kosovo 53

East/West Germany Rwanda

44. The analysis demonstrates that restitution institutions have historically captured only 5-45% of all possible restitution claims in a given context. In aggregate, restitution institutions only capture 31% of all possible restitution claims. Further, the restitution process for Bosnia and Herzegovina explicitly articulated that their beneficiary population was only 1 million out of a total possible 2.2 million people. These facts add probative value to the claim that even when they exist (which, as we have seen is far from universally the case) restitution bodies are not always able to receive and assess all possible claims.

45. These numbers of unresolved cases are already shockingly high and if current trends are anything to go by, these numbers are set to explode if displacement levels continue to follow the dramatic upward trajectory they have followed in recent years. The following graph illustrates the potential cumulative population displacement growth between 2008 to 2050 if current trends continue on the same arc as today. According to this analysis, all other things being equal, by 2050, there could be a staggering 1.3 billion people displaced due to 59

52 http://www.nuhanovicfoundation.org/user/file/1996-2003_crpc_(bih)_-_end_of_mandat_report.pdf.

53 http://www.kpaonline.org/KpaStatistics/claimsStatistics.aspx.

54 https://www.gov.za/issues/land-reform.

55 https://www.sahistory.org.za/article/forced-removals-south-africa.

56 M. Blacksell, K. M. Born and M. Bohlander (1996). Settlement of Property Claims in Former East Germany in Geographical Review, 86(2), 198–215.

57 http://users.soc.umn.edu/~uggen/NysethBrehm_Uggen_Gasanabo_JCCJ_14.pdf.

58 https://en.igihe.com/news/property-restitution-lawsuits-impeding-unity-and.

59 https://reliefweb.int/sites/reliefweb.int/files/resources/ETR_2020_web-1_0.pdf

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natural disasters and armed conflict. We hope, of course, that these projections will prove to be extreme exaggerations and that reality will result in far fewer cases of displacement.

But even if the actual numbers of displaced are only ten percent of these calculations, 130 million people will need not only durable solutions to their displacement, but also some means by which they can exercise their restitution rights in a world, which by then, will be even more likely than today to be a place where competition over scarce and finite resources is much more fierce that it already is today.

IDMC, IEP Calculations

As at the end of 2050, the total number of displaced persons directly attributable to climate change alone will be 216 million – fives times higher than the current figures.

ESTIMATED CLIMATE CHANGE DISPLACEMENT – 205060 Region

2050

Sub-Saharan Africa

86,000,000

East Asia and the Pacific

49,000,000

South Asia

40,000,000

North Africa

19,000,000

Latin America

17,000,000

Eastern Europe and Central Asia

5,000,000

Total

216,000,000

60 https://openknowledge.worldbank.org/bitstream/handle/10986/36248/Groundswell%20Part%20II.pdf?sequence=8&isAllowed=y

If the global number of persons per household remains the same, here will be a cumulative increase in restitution claims of 265 million restitution claims by 2050. The year 2050 itself could see 49 million restitution claims caused by climate change.

V. ARE CURRENT INSTITUTIONS SUFFICIENT TO PROTECT RESTITUTION RIGHTS? 46. We thus face a situation globally whereby an absolute minimum of 16.8 million outstanding restitution claims have still yet to see their day in court, combined with anticipated growth in the levels of displacement which are almost exponential in nature. All told, this amounts to well over 100 million people who are living with ongoing injustice and no access to a legal remedy, the direct victims of HLP losses for which their respective governments remain legally responsible to rectify and remedy, and involving HLP assets totaling billions upon billions of dollars, if not even more than that. The question thus becomes whether international institutions currently in place are sufficient to address and resolve these outstanding restitution claims, bearing in mind that most restitution bodies are by their very nature temporary, normally established to exist only as long as there are restitution claims that require adjudication or enforcement. If those institutions currently involved in the quest for restitution are doing enough then clearly there is no need for a new World Restitution Agency. However, if they are merely dabbling in restitution from time to time depending on donor interest to engage in these matters, and neither individually nor collectively doing everything needed to restore HLP resources to the world’s rapidly growing displaced population, then something new has to be done if the rule of law and the international rules based order is to continue to be embraced by people who consider human rights to be the cornerstone of democratic societies based on the will of the people.

UN HIGH COMMISSIONER FOR REFUGEES (UNHCR) 47. UNHCR is the UN agency in charge of assisting refugees and IDPs and providing protection and durable solutions to their displacement. It promotes the rights of refugees and internally displaced persons to seek and obtain asylum, refugee resettlement, camp management and programming, and assisting the displaced to return voluntarily to their countries of origin. This latter objective has become the focus of many country programs coordinated by UNHCR, and in the 1990s more than ten million refugees returned to their home countries, most in connection with voluntary repatriation programmes. Since then, various Executive 61

61 Voluntary repatriation as a solution to refugee situations has its origins in the 1950 General Assembly resolution adopting the UNHCR Statute. Resolution 428 (V) of 14 December 1950 calls upon governments to co-operate with the High Commissioner in the performance of his functions, inter alia, by ‘assisting the High Commissioner in his efforts to promote the voluntary repatriation of refugees’.

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Committee Conclusions have further elaborated the role and policy perspectives of UNCHR with respect to voluntary repatriation . UNHCR’s Handbook on Voluntary Repatriation provides additional guidance on these issues. The Handbook stresses, for instance, that UNHCR’s mandate includes the role of promoting ‘the creation of conditions that are conducive to voluntary return in safety and with dignity’ and to ‘promote the voluntary repatriation of refugees once conditions are conducive to return’. Consistent with the position of international law and practice on voluntary repatriation, UNHCR has been increasingly active in its support for the broader right to return, and to the more distinct rights to housing and property restitution for returning refugees.

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48. Indicative of the growing seriousness accorded these issues by UNHCR, the agency issued an internal memorandum to all UNHCR offices throughout the world outlining UNHCR policy on the recovery of refugee homes and properties. The Memorandum also outlines several steps UNHCR staff should take to strengthen the prospects for successful housing, land and property restitution for returning refugees, including the need to promote HLP rights within peace agreements, and repatriation plans and the need for UNHCR field offices to develop 65

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62 EXCOM Conclusion No. 18 (XXXI) - 1980 ‘Voluntary Repatriation (A/AC.96/588), in Para. 48(3) “(f) Called upon governments of countries of origin to provide formal guarantees for the safety of returning refugees and stressed the importance of such guarantees being fully respected and of returning refugees not being penalized for having left their country of origin for reasons giving rise to refugee situations”. While EXCOM Conclusion No. 40 (XXXVI)-1985 ‘Voluntary Repatriation (A/AC.96/673), noted in Para 115(5). “(a) The basic rights of persons to return voluntarily to the country of origin is reaffirmed and it is urged that international co-operation be aimed at achieving this solution and should be further developed; (b) The repatriation of refugees should only take place at their freely expressed wish the voluntary and individual character of repatriation of refugees and the need for it to be carried out under conditions of absolute safety, preferably to the place of residence of the refugee in his country of origin, should always be respected;….(k) …

UNHCR and other United Nations agencies as appropriate, should have funds readily available to assist returnees in the various stages of their integration and rehabilitation in their country of origin; (l) The High Commissioner should be recognized as having a legitimate concern for the consequences of return, particularly where such return has been brought about as a result of an amnesty or other form of guarantee….

63 UNHCR (1996) Handbook Voluntary Repatriation: International Protection, Geneva.

64 Current UNHCR policy on voluntary repatriation is effectively comprised of the following core elements: (1) Repatriation should be voluntary and based on informed consent; (2) UNHCR, governments and private organizations (NGOs) have a joint (tripartite) role to play in voluntary repatriation; (3) Voluntary repatriation should be both facilitated and promoted; (4) There must have been a change in the circumstances that led to flight; and (5) Security guarantees must be in place. These elements, of course, must be applied in conjunction with other Statutory obligations, including the principle of non-refoulement and the absence of any well-founded fear of persecution.

65 The memorandum contains a range of far-reaching provisions which reveal just how extensively housing and property restitution rights have percolated not only into law, but into the largest inter-Governmental agencies: 1. Recovery of refugees’ homes and property in their countries of origin needs to be addressed consistently to ensure that effective solutions to refugee displacement are found.

Experience has shown that voluntary repatriation operations are unlikely to be fully successful or sustainable in the longer term if housing and property issues – being an integral part of return in safety and dignity – are left unattended. 2. Human rights law in relation to the right to adequate housing has evolved significantly over the past decade. The right of a refugee to return to her/his country is now increasingly coupled with her/his right to adequate housing. In this context, the right to adequate housing has developed to extend to the right not to be arbitrarily deprived of housing and property in the first place. As corollary to this, refugees have the right to return not only to their countries of origin but also to recover the homes from which they were previously evicted (restitution). If this is not possible, then the right to adequate compensation for any loss suffered comes into play. In most circumstances, conditions of safe and dignified return will not and cannot be met without adequate safeguards designed to protect the rights of returnees to housing and property restitution. If housing is to be properly treated as an issue of human rights, then all housing-related policies and practices of UNHCR need per se to be treated as issues of refugee protection…iii) Housing issues for refugees should be addressed at an early stage in the cycle of refugee displacement and not only after refugees have returned to their countries of origin. Source: UNHCR InterOffice Memorandum No. 104/2001, 28 November 2001, UNHCR Field Office Memorandum No. 101/2001, 28 November 2001.

66 UNHCR should attempt to play an active role in negotiations leading to peace agreements, with a view to ensuring that the housing and property aspects of voluntary repatriation are fully taken into account. UNHCR should seek to ensure that such agreements explicitly include provisions on the housing and property rights of those choosing to repatriate and that judicial or other mechanisms designed to ensure the implementation of such rights are established. Where refugees voluntarily settle elsewhere, it should be stipulated that this does not affect their right to property restitution or, should this not be possible, compensation or other form of reparation.

67 Assessment missions entrusted with preparing repatriation plans should examine how housing and property restitution will be most effectively integrated in the repatriation plan.

plans of action on HLP restitution. The field offices, which would generally be responsible on a daily basis for ensuring that restitution actually took place, are also encouraged in the pre-return phase to begin implementing the envisaged plans of action for housing and property restitution to identify any major housing-related obstacles to return, including the extent of secondary occupation of refugee homes, whether housing abandonment laws were adopted after flight, whether inheritance laws discriminate against women or other groups, whether unjust and arbitrary applications of law occurred after flight, whether housing and property registration records were destroyed or lost after flight and whether effective and impartial judicial remedies are in place. The document also calls on UNHCR to identify all relevant national laws relevant to the housing and property rights of returnees, in particular, laws relating to the right to adequate housing and property restitution, the right to property and the peaceful enjoyment of possessions, the right to protected against forced evictions, the right to privacy and respect for the home, the right to freedom of movement and to choose one’s residence, and the rights of indigenous peoples. Finally, the Memorandum also recommends that UNHCR to promote legislative analysis , legislative repeal and legislative reform , and outlines a series of measures that need to be taken to ensure the actual implementation of housing and restitution laws. Recently, UNHCR noted that “Mechanisms or processes to address HLP-related grievances and protect the right to restitution require strengthening to truly be accessible to the most vulnerable IDPs”. However, UNHCR’s 2020 Global Report, which covers UNHCR’s principal activities on an annual basis, does 68

69

70

71

72

73

68 Field Offices in countries of origin/return should develop a plan of action on housing and property restitution. This plan will form the first step in developing an effective UNHCR response to these issues. The plan should be based on both the prevailing international and (where consistent with international law) national legal normative frameworks….Plans of action on housing and property restitution should include the promotion of measures that: Approach housing and property restitution as a human rights and refugee protection issue; Rectify and provide remedies for any unjust or arbitrary applications of law relating to refugee housing or property; Protect all persons from homelessness or other housing rights violations; Ensure consistency between domestic law and relevant international law; Ensure equal access to impartial and effective judicial and procedural remedies, including any specific mechanism established to promote housing and property restitution; Ensure that the reconstruction and rehabilitation of damaged housing is seen as an indispensable element of safe and dignified return and that these two processes are seen as forming key elements in the overall restitution process; Protect housing and property registration records where these still exist and, if necessary, re-establish housing and property registration systems; Support the establishment of legal aid centers to provide expert legal assistance to returnees seeking to invoke their rights to housing and property restitution; Ensure that effective systems are created for equitable redress and/or financial or other forms of compensation for returnees unable to exercise their rights to housing and property restitution. When developing plans of action, field offices should also take into account customary (traditional) structures for resolving disputes and addressing issues related to housing, land and property issues, as and where appropriate.

69 Legislative analysis: Collect, translate and analyze housing and property legislation currently in force in countries of origin.

70 Legislative repeal: Identify any housing and property legislation which is inconsistent with international human rights standards.

71 Legislative reform: Promote the development of a domestic legal system which is consistent with international human rights standards relating to housing and property rights.

72 “Besides a fair and efficient property restitution framework, the consideration and promotion of additional measures may be necessary to ensure the full and effective implementation of restitution laws: Running of public information campaigns to inform claimants about their rights and obligations and to ensure that they receive the necessary guidance and counseling as to the procedures to be followed, including access to fair and effective remedies; De-mining and reconstruction projects should be tailored to support the implementation of property laws (e.g. priority of shelter projects for those who are currently occupying someone else’s home); Restoration of infrastructure where it is damaged or destroyed; Establishment of mechanisms to resolve property issues of those who have decided not to return (e.g. creation of a fair and equitable environment for real estate transactions to allow displaced persons and refugees who do not wish to return to integrate into communities or environments of current displacement; such initiatives, however, must not undermine the principle of return); Creation of sufficient alternative accommodation (interim accommodation) to speed up the restitution process; Creation of social housing for those who do not have a place to return to; Establish linkage between property laws and legislation dealing with displaced persons and repatriates; In case of a flawed national property restitution framework, promote, if possible and as appropriate, proceedings to invoke the right to property before treaty bodies (e.g. European Court of Human Rights; Inter-American Commission on Human Rights)”.

73 See: See: UNHCR, Unlocking Solutions for the Internally Displaced: Additional Submission to the High-Level Panel on Internal Displacement, September 2020, p. 7.

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not mention restitution in any of its thematic areas. Despite, however, the many positive contributions by UNHCR to the question of restitution, as of early 2022 this massive UN agency has not a single staff person working full-time on restitution questions, let alone a programme, section or unit dedicated to resolving the tens of millions of outstanding restitution claims. UNHCR staff may be bound by a large corpus of law, policy and guidelines on restitution, but there remains no programmatic focus by staff members dedicated to this fundamental issue.

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49. The IOM, now known as UN Migration, also has a history of selectively addressing HLP restitution issues. After several projects involving restitution in countries such as Iraq, Colombia, Nepal and others through the efforts of a land and property reparations division, comprised of a reparations unit and land and property unit, a new Transition and Recovery Division was established to focus on issues such as transitional and restitutive justice, housing, land and property rights, and reparation to victims of human rights violations. IOM’s mandate and emphasis on migration, as distinct from the mandates of UNHCR which are grounded in the rights and protection needs of refugees, asylum seekers and IDPs or the human rights laws guiding agencies such as the OHCHR, mean that unless its mandate changes, IOM will neither have the expertise nor institutional policies required to carry out the type and scale of activities that would need to be carried out by a new global restitution agency.

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50. UN Habitat took the lead on developing the Housing and Property Directorate (HPD) in Kosovo, a restitution body which, as noted above, provided remedies to tens of thousands of displaced Kosovars, and has always lent at least a rhetorical brand of support to restitution for many years. Some have suggested that UN Habitat, in fact, could become the lead agency on HLP matters, however, as of 2021, like so many other international agencies UN Habitat has no full-time staff, let alone a stand alone unit or programme in place dedicated to facilitating restitution for those with outstanding claims. The UN Operations Services (UNOPS), the OCHA, the UN’s HLP Sub-Cluster, the Organisation for Security and Cooperation in Europe (OSCE) and have all addressed restitution issues at times, but again none have full time multi-person programmes or even a single staff member in place dedicated to an issue that affects hundreds of millions of people. The Global Protection Cluster which is a “network of nongovernmental organizations (NGOs), international organizations and UN agencies, engaged in protection work in humanitarian crises including armed conflict, climate change related and natural disaster”. Despite this cluster’s mandate clearly covering restitution, its leadership, coordination teams, task teams, operation cells, bodies or personnel do not have restitution issues directly referenced in their terms of reference or supporting documentation and have no personnel directly related to restitution based on their position description. Even the most relevant sub-cluster protection group, the Housing Land and Property sub-cluster, does not articulate restitution issues in its governance documents. Within their reports, there is only a brief mention of restitution 77

74 https://reporting.unhcr.org/sites/default/files/gr2020/pdf/GR2020_English_Full_lowres.pdf 75 IOM, Property Restitution and Compensation: Practices and Experiences of Claims Programmes, 2008.

76 IOM UN Migration, Transitional Restitutionary Justice, June 2021. See also, IOM, IOM in Land and Property Rights and Victim Reparations and IOM, Property Restitution and Compensation: Practices and Experiences of Claims Programmes, 2008.

77 https://www.globalprotectioncluster.org/about-us/who-we-are/.

issues that arose in specific countries but there does not exist any reference to restitution within its mission, goals or issues. This is exemplified by the Norwegian Refugee Council (NRC) which has undertaken a range of important restitution programmes, in particular in Myanmar. However, NRC in its capacity of the Housing, Land and Property rights Lead Agency within the Global Protection Cluster, has no structural programme mentioned on restitution in its 2020 Annual Report, annual accounts or on the portion of its website on their engagement within the HLP sphere. The embrace of HLP rights generally by NRC is something clearly to be applauded, however the absence of restitution in these reports is stark despite other extremely specific protection items being covered such as Camp Management and ICLA. 78

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51. Similarly, a range of adjudicative and other bodies have mandates and track records enabling them to address restitution issues and concerns on a case by case basis, and sometimes in the context of mass claims processes, but again none are specifically dedicated to structurally redress outstanding restitution claims. These include the International Criminal Court, the International Court of Justice, the Permanent Court of Arbitration, the UN Human Rights Treaty Bodies, regional courts such as the European Court on Human Rights and Inter-American Court on Human Rights and a range of other adjudicative bodies. Each of these and other bodies have issued very important judicial and quasi-judicial decisions supporting restitution claims, but these actions form one of many strands in their respective working mandates, and none have any level of exclusive programmatic attention to HLP restitution concerns.

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52. Given the relatively large number of existing UN and other agencies that have been engaged in varying degrees in analysing, monitoring or resolving restitution issues in a wide range of countries, combined with an array of existing adjudicative bodies that have track records in addressing restitution concerns, it may appear on the surface that convincing any of these bodies to expand their mandates to comprehensively address the huge number of outstanding restitution claims would not be an overly onerous task. Indeed, such a mandate expansion could be certainly beneficial in terms of humanitarian aims, principles of justice, the promotion of human rights and strengthening international peace and security by removing one of the many triggers for future conflict. Moreover, because the scale of unresolved restitution is so large, and tragically growing, from a purely bureaucratic motivation - which we cannot pretend do not sometimes guide internal decision-making structures leading to policy changes that enlarge the remit and budgets of international agencies - one would be forgiven for believing that moving these institutions towards a more vigourous embrace of playing a key role in getting people’s homes, lands and properties back following their initial dispossession would not be seen as in the interests of these organisations.

78 https://www.globalprotectioncluster.org/wp-content/uploads/Global-HLP_AoR.pdf; https://www.globalprotectioncluster.org/about-us/ who-we-are/ 79 https://www.nrc.no/what-we-do/speaking-up-for-rights/housing-land-and-property-rights/ 80 https://www.nrc.no/globalassets/pdf/annual-accounts/2020/nrc-annual-accounts-2020.pdf; https://www.nrc.no/globalassets/pdf/ annual-accounts/2020/nrc-annual-accounts-2020.pdf 81 See, International Bureau of the Permanent Court of Arbitration (ed), Redressing Injustices Through Mass Claims Processes: Innovative Responses to Unique Challenges, Oxford University Press, 2006, Scott Leckie (ed) Housing, Land and Property Restitution Rights of Refugees and Displaced Persons, Cambridge University Press, 2007.

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53. However, none of these arguments alone or in combination with one another has yet proven sufficient to sway even these agencies that have already dealt with restitution cases since 1990 to become the lead agency on these matters. And while it is also true that most engagements with restitution have tended very much to be on a single country at a time, implementing a single peace treaty or in the context of a single voluntary repatriation programme of returning refugees, this institutional experience, sometimes involving thousands upon thousands of cases within a given context, has not been enough to move them internally to seek a system-wide mandate to deal more effectively with these complex issues. Some of this reticence, of course, is purely political in nature; the sad victim of big donors who threaten to remove contributions if these supposedly independent organisations were to work too vigourously in support of restitution rights. But it is neither inter-agency turf battles, funding questions, political concerns or any other single reason alone no agency has yet taken up the mantle to deal with these issues, but even more so, it is the very complicated nature of so many restitution cases and the series of legal, policy and political hurdles put in their way that have brought the system to the stasis it finds itself in now, and which strengthens the case for the need to create a new World Restitution Agency.

VI. A WORLD RESTITUTION AGENCY International organizations should work with national governments and share expertise on the development of national housing, land and property restitution policies and programs and help ensure their compatibility with international human rights, refugee and humanitarian law and related standards. International organizations should also support the monitoring of their implementation.

--Principle 22.3 of the Pinheiro Principles 54. The massive number of current and future projected restitution claims requires a dedicated international organization with the primary goal of drawing attention to and seeking the enforcement of national and international restitution rights - a World Restitution Agency. The gap in enforcing HLP restitution rights is staggering and requires immediate rectification through the establishment of a dedicated agency. Such an agency could assist states that do not have the institutional capacity to handle the complex and large number of restitution cases that remain unresolved throughout the world.

FOUNDATIONAL PERSPECTIVES 55. Based on a cross section of the most important lessons learned from experiences with restitution since 1990, we can distill ten key foundational points that should form the basis for a comprehensive approach to restitution, all of which can be addressed through the establishment of a World Restitution Agency. These would include, for instance: 1. The State (and where the effective control of the State is absent, other groups exercising jurisdiction over territories and people, whether under dispute or not) retains legal responsibility for securing restitution rights for all who assert such rights notwithstanding when the acts and omissions, generating restitution claims occurred; 2. Notwithstanding the cause of forced displacement everyone must have equal access to a restitution remedy and restitution claims do not lapse with the passage of time; 3. Everyone with a restitution claim must have access to an effective remedy for reviewing such claims; 4. Securing the independence, impartiality and fairness of any restitution process is vital for its eventual success; 5. Everyone deserves a commitment to the non-repetition of acts and omissions that generated restitution claims; 6. Restitution can take various forms, all of which are fair, equitable and just; 7. Restitution processes should be quick, fair, effective and affordable, and set within an agreed time-frame, both in terms of how far back in time claims can go and how long citizens will have to submit restitution claims; 8. Restitution is an essential element of the peace process. Including restitution rights within relevant national legislation and within peace agreements and voluntary repatriation/return agreements will be vital to

Image: © Kadir Van Lohuizen. Rafah, Gaza strip, Palestine - January, 2009. Gaza aftermath

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Image: © Kadir Van Lohuizen. Zaitoun, Gaza strip, Palestine - January, 2009. Gaza aftermath.

Zeitoun has been flattened by the Israeli army. One hundred members of one family were ordered by the Israeli army to gather in one house. After this the house was bombed; 29 people died.

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provide a basis for an eventual restitution programme; 9. Restitution is a tool for conflict prevention. Ignoring the restitution demands of returnees will tend to aggravate rather than reduce tensions or violence; and 10. Restitution is beneficial for the economy.

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ADVOCACY 56. Building on these foundational perspectives, a new WRA by virtue of its very existence would play an advocacy role in pushing for ever greater attention and action on outstanding restitution claims. While the new agency might not have the legitimacy or powers needed to adjudicate national restitution cases itself, it could certainly act as a repository for all legal and related documents surrounding restitution claims, both generic and individual in nature and advocate on the need for new national bodies to be established to adjudicate or otherwise resolve them fairly and equitably. It would promote the promise of a pathway to justice for people seeking to reassert control over their former homes. It could do this through advocating for a wide range of actions by the international community as a whole, as well as by individual governments including, for not limited to ensuring that: 1.

Restitution issues are included in all refugee and IDP registration procedures;

2.

Equitable, transparent and non-discriminatory institutions, procedures and restitution mechanisms are established directly within peace agreements and voluntary repatriation agreements;

3.

A human rights-based approach to return and the recovery of refugee and IDP land, housing and property pervades the restitution process;

4.

A gender-sensitive approach pervades the entire restitution process, particularly in terms of succession, inheritance and ownership rights;

5.

A consistent legislative and administrative framework is in place;

6.

Domestic law and relevant international standards are consistent with one another;

7.

Flexible and effective remedies based on IDP and refugee choice are established;

8.

Claims processes are free, simple and equitable;

9.

There is a public commitment to strenuously enforce any restitution decisions;

10. Measures need to be in place to protect the rights of secondary occupants; 11. All restitution decisions are included within a national HLP registration system; 12. Appropriate compensation systems are in place; 13. Claims processes must be accessible to all tenure types at the time of displacement, including property owners, private and public tenants and the those that were dwelling within the informal sector; and 14. Restitution rights must be accessible to heirs of property, and that citizenship, nationality and residence do not undermine or restrict restitution rights.

82 See, Displacement Solutions, Land Grabbing as an Internationally Wrongful Act: A legal roadmap for ending land grabbing and housing, land and property rights abuses, crimes and impunity in Myanmar, 2019.

THE MY HOME APP 57. The World Restitution Agency’s national focus would include its staff directly capturing restitution data from displaced persons and government agencies. The data collection would assist in identifying the severity of restitution issues and the consequential impact on the legal system. Overall, the data would provide the underlying logic for a holistic approach on what the requisite advocacy approach should be. Pursuant to the Pinheiro Principles, the World Restitution Agency would disseminate the insights gained from the data collection through releasing reports underpinned by rigorous data analysis, conducting advocacy, and providing best practice recommendations.

58. A novel feature of the WRA is that it would provide meaningful and relevant best practice recommendations and expertise on how to develop national housing, land and property restitution rights and mechanisms. This would occur through its data collection and advanced data analysis capabilities. Collection of data and provision of information would occur directly with everyone throughout the world who had what they felt to be an unresolved restitution claim. A mobile application - the My Home App - would collect relevant restitution data directly from claimants through their individual or family use of the App. Similarly, a national government liaison would be identified in all states from where claims stemmed who would also collect data from various State agencies and databases.

The collected data from both States and claimants would be stored in a single database, which would allow the WRA to conduct meaningful research and gain valuable insights in the validity of claims. Insight capabilities will increase over time through the application of machine learning and artificial intelligence models. Such models could identify the principal drivers that relate to restitution claims in order to predict where restitution could be a significant issue and how large restitution issues could be.

59. Any new WRA would host, manage and promote the use of the My Home App. This App would enable refugees and IDPs everywhere to create their own case files for what they subjectively see as unresolved HLP restitution claims and to formulate their own individual/ family claims on HLP resources they left behind in their places of origin. In using the App, the user will be presented with a list of questions concerning their HLP circumstances at the time of flight and be asked to accurately answer these questions. Once this HLP data is placed into the App, a case number will be created that will be unique to the person/family submitting the claim, and the user will create a unique password enabling them to save their data and complete the questions at a later time or to revise the data inputted. The App will enable users to upload any documentary evidence they may have proving their HLP claims (title deeds, purchase contracts, cadastral records, tax receipts, photographs, neighbour witness statements, street address, land size, etc). Once all relevant data has been submitted, the App will then store the information in a secure/non-public database, managed by a still to be determined international organisation. The user’s specific information can be retrieved, as a report or in relation to the individual files uploaded, and edited, and/or revised by the user at any time. Under management by the WRA, users will agree to have their HLP claims sent to any eventual restitution procedure determined by the donor to be credible and trustworthy.

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60. In order to achieve the App’s important objectives, a range of structural assumptions must inform the design of the App. In particular, the App must be free of charge for all users. The App must also not have paid premium features. The App must also be available globally.

This will include hosting the App outside of the Google Play store (Google’s official mobile application library for the Android mobile operating system) and the iOS App Store (Apple’s official mobile application library for the iPhone). The App must be easy-to-use and user friendly for all eventual users. Language used in the claims form will need to be simple, clear and easy to understand. Measures will need to be taken to ensure that the App can be used by persons who have limited reading and writing abilities. Measures will need to be taken to translate the App from English as soon as possible into all other UN languages, beginning with Arabic given that a majority of the world’s displaced populations stem from Arabic-speaking countries. Overall, the objective of the App is to have a user-centered design which will enable each claim/form to be delivered from the perspective of the user – simultaneously delivering a human rights centred approach. The App must be accessible for all users, be without bias, and present questions in a manner which does not discriminate by accounting for the manner that different cultures interpret language uniquely. It must be equally accessible to men and women, people of all ages, and people of all groups as defined under international law. There must be no discrimination of any sort allowed through the use of the App. The App must be universal in nature and accessible to all refugees and IDPs wherever they are anywhere in the world. The basic premise of the App design must be global access for all refugees and IDPs who wish to file an HLP claim. Data management of the files submitted will allow the relevant organisation to organise the files into various formats, eg. country-by-country, office-by-office and camp-by-camp. The App must allow all users continual access to their claim file to enable the user to input changes or amendments to the file. Users will not, therefore, be expected necessarily to complete all questions on the claim form the first time they use the App. 61. The users of the App will need to be certain that the App is both secure and protected by the highest quality digital protections available. This will be a major priority of the WRA. While the data placed within the App will be secure and protected, general data will be extracted with a view to: (a) Generating a GIS-based map indicating the location of all claims; (b) Building statistical databases generating information of the total number of claims, types of claims, etc; (c) Information indicating which HLP resources are subject to more than one claim from different claimants; and (d) a table listing all individual claims. As noted, the App will enable refugees and IDPs across the globe to create a unique housing, land and property claim against the HLP resources they left behind in their places of origin. Once accessed, the user will be able to generate a case file number and then be able to complete the detailed claims form which will constitute the main aspect of the App. The App Icon will be able to be downloaded free from a yet to be determined App provider Google Play store (Google’s official mobile application library for the Android mobile operating system) and the iOS App Store (Apple’s official mobile application library for the iPhone) and from the WRA website(s).

The icon will require a logo to be developed during later phases of this project and the words My Home will appear within, or under, the logo as an App on Smartphones.

62. The WRA would manage the database into which these files were created and held and thus provide a platform for any future restitution programmes in the countries from where the unresolved restitution claims stem. While the presentation of HLP data by refugees and

Android / iOS Mobile Application

Android / iOS Mobile Application

Central Database

Web Application

Central Database

UN Portal

Web Application

IDPs seeking to return is no guarantee that they will actually be able to return and exercise their restitution rights (this will be highlighted to users of the App), the creation of such case files and the input of data into a database can serve a range of important purposes all of which serve to strengthen the mandate of prospective donors in protecting the rights of refugees and IDPs across the world. These would include everything from constituting a valuable trove of information to supplement other ongoing refugee and IDP registration and other activities relevant to any eventual restitution process or procedure (including to any adjudicating body that may be established for these purposes) to enabling the creation of digital maps showing all HLP claims in a given geographical area, and which will indicate whether there are any competing claims that may exist over a single HLP resource. Current practice by humanitarian actors still insufficiently includes the acquisition of data on housing, land or property losses, and support by the international community towards these ends and the eventual management and ownership of these processes by the appropriate institution will all benefit the pursuit of key humanitarian and human rights objectives. Accessing this information once refugees and/or IDP’s disperse from emergency camps is often difficult, expensive and often unreliable. The major impact of collecting the information immediately will be in the ability of appropriate institutions to initiate restitution, compensation or resettlement programming far more quickly than current practice allows. Finally, providing access to such an App can give psychological assurances to refugee and IDP families that the international community is concerned about, and recording individual HLP losses and that these institutions support their right to recover their original homes, land and properties.

The App must be legally owned, managed, updated, and controlled by the WRA. To meet these objectives, the WRA will need to: Heavily disseminate, publicise, and market the availability of the App to all refugees and IDPs; Provide support and training to field offices and officials to broaden awareness of the App and how to use it; Generally manage all of the technical aspects of the App, in particular the databases in which all of the information gained throughout the use of the App will be stored and managed; and To encourage other refugee support organisations to incorporate the App in various aspects of their work together with and on behalf of refugees and IDPs.

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63. The My Home App will create an improved protection environment by strengthening the ability of refugees and IDPs to exercise their HLP restitution rights under international law, and by supporting and promoting the establishment of restitution programmes in countries of return. Once developed, the My Home App will be supported by a website providing comprehensive information on all aspects of HLP rights and other protection matters as they relate to refugees and IDPs, including a detailed FAQ document assisting claimants with the process. By providing the technology through which refugees and IDPs can self-report, selfclaim and self-formulate HLP claims which are registered in a-managed database, the App will result in the empowerment of refugees and IDPs to exercise their HLP restitution rights and give them a degree of agency over the eventual enforcement of those rights. The My Home App will provide users with a detailed questionnaire about their HLP restitution claim, in their language, that the user will answer. A unique case file and case number, accessible with a unique password, will then be generated. The My Home App will also enable users to upload any documentary evidence they may have supporting their HLP claims (title deeds, purchase contracts, cadastral records, tax receipts, photographs, neighbour witness statements, street address, land size, etc). The refugee/IDP user’s specific information will be able to be retrieved by the user at any time, updated and edited on the My Home App. The contents of the HLP restitution claim would then be placed within managed refugee registration databases. The database will self-generate a geographic information system mapping of all claims providing an invaluable source of analysed, meaningful data concerning restitution, compensation and potential HLP disputes. The My Home App would be globally relevant, but will initially be field-tested with refugee communities in still to be determined field location. If and when a restitution process gets underway in the country of return, the information contained in these claims can form the basis of a more formal restitution claim as the data gathered by the My Home App will be evidentiary in nature.

The database will also assist advocacy efforts supporting the establishment of restitution programmes.

The database will be linked to data visualization software such as Tableau or Power BI, to enable continuously updated infographics, an automated alerts system, and live data feeds for all WRA staff.

Data driven analysis will strengthen advocacy efforts, restitution claims, and programming.

Customisable user defined data requests will enable WRA to ascertain specific insights from the data at will.

The data will be stored in SQL to enable the greatest amount of support and flexibility.

Locations monitored

64. Once the My Home App is fully functional and widely used, the database holding the claims forms and documentation will provide data, which will be fed into the database by the My Home App’s users, on the HLP claims of relevant refugees and IDPs, which in turn can be used to strengthen advocacy efforts in favour of restitution for refugees and IDPs currently unable to access their former homes, lands and properties. In particular, the data, gathered by the My Home App, can be further utilised to strengthen arguments in support of establishing restitution laws and procedures in countries of return by providing a real-time statistical basis evidencing the precise scale of unresolved HLP restitution claims, which will then demonstrate the need for institutional systems that relate to the restitution process.

ORGANISATIONAL COMPONENTS 65. The lack of any substantial engagement by major international agencies on the issue of HLP restitution combined with the growing scale of unresolved restitution claims throughout the world demands that a new restitution agency be established to improve the prospects of those seeking residential justice. A new institution with this mandate would need to be fully independent of any other agency and certainly free of interference from any State or other entity. It would be designed to be practical in orientation and aimed to be a problem solving body. It should be an institution that acts as a clearinghouse of all relevant information on the broad question of restitution. It should provide legal expertise on all restitutionrelated matters and essentially provide a one-stop shop for any questions or queries about restitution in the world.

66. Ideally, beyond carrying out advocacy and legal advice, the WRA should act as the repository for all housing, land and related documentation and unresolved restitution claims organised on a country-by-country basis. It should have a secure, fraud-free and safe system of managing these files and have secure back-ups of all materials stored on separate servers off the physical premises of any eventual headquarters of a new WRA. Initially, the new agency would seek originals or copies of existing restitution files such as those held in the United States on behalf of the United Nations for Palestinian refugees, HLP restitution case files from Sri Lanka resulting from displacement occurring during the civil war there, case files from Bhutan, and all such files that exist already in various places around the globe.

67. Managing and overseeing the use of the My Home App, combined with data management and analysis will form key functions of the WRA, along with other key functions highlighting all aspects of the restitution question. Overall, it is proposed that the WRA will be comprised of six central units as well as various national liaison functions as things evolve. The six units include: 1. Management; 2. Legal claims and procedures; 3. Documentation and Data Management; 4. Advocacy; 5. Client Relations and 6. PR/Media. The following organagram displays the key functional groups and their relative hierarchy within the WRA:

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LOCATION 68. A new WRA could be established in any number of leading world cities, but perhaps key consideration should be given to Geneva, The Hague, Berlin/Bonn or New York. Equally, because of the controversial nature of so many restitution questions, consideration could be given to hosting the new agency in a city seen by people as independent, free, open, democratic and clearly committed to the rule of law. In this light, cities such as Helsinki, Reykjavik, Stockholm, Oslo, Auckland or Melbourne could be possible candidates.

EXECUTIVE FUNCTION Board of Directors Advisory Board

Management Team

Legal Claims & Procedures

Documentation & Data Management

Advocacy

Client Relations - Restitition Claimants

Global Restitution App

National Government Liaison

PR & Media

BUDGET 69. A new WRA could be established with a small budget of USD six million which would be sufficient to hire 20+ staff, acquire offices, equipment and other materials to begin its work. Once established, the WRA would then seek to increase the annual budget in regular increments, and could examine the work of the OSCE High Commissioner on National Minorities , the International Code of Conduct Association (ICOCA) , the International Commission on Missing Persons and others; small but effective and efficient centres of excellence with limited mandates, but doing work no other institutions are doing to do sufficient degree.

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84

85

83 https://www.osce.org/hcnm.

84 https://icoca.ch/about/.

85 https://www.icmp.int/what-we-do/.

Image: © Kadir Van Lohuizen. Israeli settlers, neighbours, divided by a wall, Gaza

VII. CONCLUSIONS AND RECOMMENDATIONS 70. 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.

71. 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.

72. It is keenly hoped that this report - by showing that restitution is possible, feasible, affordable, legal and, above all, just and 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.

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ANNEX 1 - UNITED NATIONS PRINCIPLES ON HOUSING AND PROPERTY RESTITUTION FOR REFUGEES AND DISPLACED PERSONS (2005) 86

PREAMBLE Recognizing that millions of refugees and displaced persons worldwide continue to live in precarious and uncertain situations, and that all refugees and displaced persons have a right to voluntary return, in safety and dignity, to their original or former habitual homes and lands; Underscoring that voluntary return in safety and dignity must be based on a free, informed, individual choice and that refugees and displaced persons should be provided with complete, objective, up to date, and accurate information, including on physical, material and legal safety issues in countries or places of origin; Reaffirming the rights of refugee and displaced women and girls, and recognizing the need to undertake positive measures to ensure that their rights to housing, land and property restitution are guaranteed; Welcoming the many national and international institutions that have been established in recent years to ensure the restitution rights of refugees and displaced persons, as well as the many national and international laws, standards, policy statements, agreements and guidelines that have recognized and reaffirmed the right to housing, land and property restitution; Convinced that the right to housing, land and property restitution is essential to the resolution of conflict and to post-conflict peace-building, safe and sustainable return and the establishment of the rule of law, and that careful monitoring of restitution programs, on the part of international organizations and affected states, is indispensable to ensuring their effective implementation; Convinced also that the implementation of successful housing, land and property restitution Programs, as a key element of restorative justice, contributes to effectively deterring future situations of displacement and building sustainable peace;

86 Adopted without a vote on 11 August 2005 in Resolution 2005/21 by the UN Sub-Commission on Protection and Promotion of Human Rights, Geneva.

Section I. SCOPE AND APPLICATION 1.

Scope and Application 1.1

The Principles on Housing and Property Restitution for Refugees and Displaced Persons articulated herein are designed to assist all relevant actors, national and international, in addressing the legal and technical issues surrounding housing, land and property restitution in situations where displacement has led to persons being arbitrarily or unlawfully deprived of their former homes, lands, properties or places of habitual residence.

1.2

The Principles on Housing and Property Restitution for Refugees and Displaced Persons apply equally to all refugees, internally displaced persons and to other similarly situated displaced persons who fled across national borders but who may not meet the legal definition of refugee, (hereinafter ‘refugees and displaced persons’) who were arbitrarily or unlawfully deprived of their former homes, lands, properties or places of habitual residence, regardless of the nature or circumstances by which displacement originally occurred.

Section II. THE RIGHT TO HOUSING AND PROPERTY RESTITUTION 2.

The Right to Housing and Property Restitution 2.1

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

2.2

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

Section III. OVERARCHING PRINCIPLES 3.

The Right to Non-Discrimination 3.1

Everyone has the right to non-discrimination on the basis of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

3.2

States shall ensure that de facto and de jure discrimination on the above grounds is prohibited and that all persons, including refugees and displaced persons, are considered equal before the law.

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4.

5.

6.

The Right to Equality Between Men and Women 4.1

States shall ensure the equal right of men and women, and the equal right of boys and girls, to the enjoyment of housing, land and property restitution. In particular, States shall ensure the equal right of men and women, and the equal right of boys and girls, to inter alia voluntary return in safety and dignity; legal security of tenure; property ownership; equal access to inheritance; as well as the use, control of and access to housing, land and property.

4.2

States should ensure that housing, land and property restitution Programs, policies and practices recognize the joint ownership rights of both the male and female heads of the household as an explicit component of the restitution process, and that restitution Programs, policies and practices reflect a gender sensitive approach.

4.3

States shall ensure that housing, land and property restitution Programs, policies and practices do not disadvantage women and girls. States should adopt positive measures to ensure gender equality in this regard.

The Right to be Protected from Displacement 5.1

Everyone has the right to be protected against being arbitrarily displaced from his or her home, land or place of habitual residence.

5.2

States should incorporate protections against displacement into domestic legislation, consistent with international human rights and humanitarian law and related standards, and should extend these protections to everyone within their legal jurisdiction or effective control.

5.3

States shall prohibit forced eviction, demolition of houses and destruction of agricultural areas and the arbitrary confiscation or expropriation of land as a punitive measure or as a means or method of war.

5.4

States shall take steps to ensure that no one is subjected to displacement by either State or non-State actors. States shall also ensure that individuals, corporations, and other entities within their legal jurisdiction or effective control refrain from carrying out or otherwise participating in displacement.

The Right to Privacy and Respect for the Home 6.1

Everyone has the right to be protected against arbitrary or unlawful interference with his or her privacy and his or her home.

6.2

States shall ensure that everyone is provided with safeguards of due process against such arbitrary or unlawful interference with his or her privacy and his or her home.

7.

8.

9.

The Right to Peaceful Enjoyment of Possessions 7.1

Everyone has the right to the peaceful enjoyment of his or her possessions.

7.2

States shall only subordinate the use and enjoyment of possessions in the public interest and subject to the conditions provided for by law and by the general Principles of international law. Whenever possible, the ‘interest of society’ should be read restrictively, so as to mean only a temporary interference with the right to peaceful enjoyment of possessions.

The Right to Adequate Housing 8.1

Everyone has the right to adequate housing.

8.2

States should adopt positive measures aimed at alleviating the situation of refugees and displaced persons living in inadequate housing.

The Right to Freedom of Movement 9.1

Everyone has the right to freedom of movement and the right to choose his or her residence. No one shall be arbitrarily or unlawfully forced to remain within a certain territory, area or region. Similarly, no one shall be arbitrarily or unlawfully forced to leave a certain territory, area or region.

9.2

States shall ensure that freedom of movement and the right to choose one’s residence are not subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with international human rights, refugee and humanitarian law and related standards.

Section IV. THE RIGHT TO VOLUNTARY RETURN IN SAFETY AND DIGNITY 10. The Right to Voluntary Return in Safety and Dignity 10.1

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

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

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

10.4 States should, when necessary, request from other States or international organizations the financial and/or technical assistance required to facilitate the effective voluntary return, in safety and dignity, of refugees and displaced persons.

Section V. LEGAL, POLICY, PROCEDURAL AND INSTITUTIONAL IMPLEMENTATION MECHANISMS 11. Compatibility with International Human Rights, Refugee and Humanitarian law and Related Standards 11.1

States should ensure that all housing, land and property restitution procedures, institutions, mechanisms and legal frameworks are fully compatible with international human rights, refugee and humanitarian law and related standards, and that the right to voluntary return in safety and dignity is recognized therein.

12. National Procedures, Institutions and Mechanisms 12.1

States should establish and support equitable, timely, independent, transparent and non-discriminatory procedures, institutions and mechanisms to assess and enforce housing, land and property restitution claims. In cases where existing procedures, institutions and mechanisms can effectively address these issues, adequate financial, human and other resources should be made available to facilitate restitution in a just and timely manner.

12.2 States should ensure that housing, land and property restitution procedures, institutions and mechanisms are age and gender sensitive, and recognize the equal rights of men and women, as well as the equal rights of boys and girls, and reflect the overarching principle of the “best interests” of the child.

12.3 States should take all appropriate administrative, legislative and judicial measures to support and facilitate the housing, land and property restitution process. States should provide all relevant agencies with adequate financial, human and other resources to successfully complete their work in a just and timely manner.

12.4 States should establish guidelines which ensure the effectiveness of all relevant housing, land and property restitution procedures, institutions and mechanisms, including guidelines pertaining to institutional organization, staff training and caseloads, investigation and complaints procedures, verification of property ownership or other possessory rights, as well as decision-making, enforcement and appeals mechanisms. States may integrate alternative or informal dispute resolution mechanisms into these processes, insofar as all such mechanisms act in accordance with international human rights, refugee and humanitarian law and related standards, including the right to non-discrimination.

12.5 States should, where there has been a general breakdown in the rule of law, or where States are unable to implement the procedures, institutions and mechanisms necessary to facilitate the housing, land and property restitution process in a just and timely manner, request the technical assistance and cooperation of relevant international agencies in order to establish provisional regimes responsible for providing refugees and displaced persons with the procedures, institutions and mechanisms necessary to ensure effective restitution remedies.

12.6 States should include housing, land and property restitution procedures, institutions and mechanisms in peace agreements and voluntary repatriation agreements. Peace agreements should include specific undertakings by the parties to appropriately address any housing, land and property issues that require remedies under international law or threaten to undermine the peace process if left unaddressed, while demonstrably prioritizing the right to restitution as the preferred remedy in this regard.

13. Accessibility of Restitution Claims Procedures 13.1

Everyone who has been arbitrarily or unlawfully deprived of housing, land and/or property should be able to submit a claim for restitution and/or compensation to an independent and impartial body, and to receive a determination on their claim. States should not establish any pre-conditions for filing a restitution claim.

13.2 States should ensure that all aspects of the restitution claims process, including appeals procedures, are just, timely, accessible, free of charge, and are age and gender sensitive. States should adopt positive measures to ensure that women are able to participate on a fully equal basis in this process.

13.3 States should ensure that separated and unaccompanied children are able to participate and are fully represented in the restitution claims process, and that any decision in relation to the restitution claim of separated and unaccompanied children is in compliance with the overarching principle of the “best interests” of the child.

13.4 States should ensure that the restitution claims process is accessible for refugees and other displaced persons regardless of their place of residence during the period of displacement, including in countries of origin, countries of asylum or countries to which they have fled. States should ensure that all affected persons are made aware of the restitution claims process, and that information about this process is made readily available, including in countries of origin, countries of asylum or countries to which they have fled.

13.5 States should seek to establish restitution claims processing centers and offices throughout affected areas where potential claimants currently reside. In order to facilitate the greatest access to those affected, it should be possible to submit restitution claims by post or by proxy, as well as in person. States should also consider establishing mobile units in order to ensure accessibility to all potential claimants.

13.6 States should ensure that users of housing, land and/or property, including tenants, have the right to participate in the restitution claims process, including through the filing of collective restitution claims.

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13.7

States should develop restitution claims forms that are simple, easy to understand and use and make them available in the first language or languages of the groups affected. Competent assistance should be made available to help persons in completing and filing any necessary restitution claims forms, and such assistance should be provided in a manner which is age and gender sensitive.

13.8 Where restitution claims forms cannot be sufficiently simplified due to the complexities inherent in the claims process, States should engage qualified persons to interview potential claimants in confidence, and in a manner which is age and gender sensitive, in order to solicit the necessary information and complete the restitution claims forms on their behalf.

13.9 States should establish a clear time period for filing restitution claims. The time period should be widely disseminated and should be sufficiently long to ensure that all those affected have an adequate opportunity to file a restitution claim, bearing in mind the number of potential claimants, potential difficulties of information and access, the spread of displacement, the accessibility of the process for potentially disadvantaged groups and vulnerable individuals, and the political situation in the country or region of origin.

13.10 States should ensure that persons needing special assistance, including illiterate and disabled persons, are provided with such assistance in order to ensure that they are not denied access to the restitution claims process.

13.11 States should ensure that adequate legal aid is provided, if possible free of charge, to those seeking to make a restitution claim. While legal aid may be provided by either governmental or non-governmental sources (be they national or international), such legal aid should meet adequate standards of quality, non-discrimination, fairness and impartiality so as not to prejudice the restitution claims process.

13.12 States should ensure that no one is persecuted or punished for making a restitution claim.

14. Adequate Consultation and Participation in Decision-Making 14.1

States and other involved international and national actors should ensure that voluntary repatriation and housing, land and property restitution Programs are carried out with adequate consultation and participation with the affected persons, groups and communities.

14.2 States and other involved international and national actors should, in particular, ensure that women, indigenous peoples, racial and ethnic minorities, the elderly, the disabled and children are adequately represented and included in restitution decision-making processes, and have the appropriate means and information to participate effectively.

The needs of vulnerable individuals including the elderly, single female heads of households, separated and unaccompanied children, and the disabled should be given particular attention.

15. Housing, Land and Property Records and Documentation 15.1

States should establish or re-establish national multi-purpose cadastre or other appropriate systems for the registration of housing, land and property rights as an integral component of any restitution Programs, respecting the rights of refugees and displaced persons when doing so.

15.2 States should ensure that any judicial, quasi-judicial, administrative or customary pronouncement regarding the rightful ownership of, or rights to, housing, land and/or property is accompanied by measures to ensure registration or demarcation of that housing, land and/or property right as is necessary to ensure legal security of tenure.

These determinations shall comply with international human rights, refugee and humanitarian law and related standards, including the right to non-discrimination.

15.3 States should ensure, where appropriate, that registration systems record and/ or recognize the possessory rights of traditional and indigenous communities to collective lands.

15.4 States and other responsible authorities or institutions should ensure that existing registration systems are not destroyed in times of conflict or post-conflict. Measures to prevent the destruction of housing, land and property records could include protection in situ or, if necessary, short-term removal to a safe location or custody.

If removed, the records should be returned as soon as possible after the end of hostilities. States and other responsible authorities may also consider establishing procedures for copying records (including in digital format) transferring them securely, and recognizing the authenticity of said copies.

15.5 States and other responsible authorities or institutions should provide, at the request of a claimant or his or her proxy, copies of any documentary evidence in their possession required to make and/or support a restitution claim. Such documentary evidence should be provided free of charge, or for a minimal fee.

15.6 States and other responsible authorities or institutions conducting the registration of refugees or displaced persons should endeavor to collect information relevant to facilitating the restitution process, for example by including in the registration form questions regarding the location and status of the individual refugee’s or displaced person’s former home, land, property or place of habitual residence. Such information should be sought whenever information is gathered from refugees and displaced persons, including at the time of flight.

15.7

States may, in situations of mass displacement where little documentary evidence exists as to ownership or possessory rights, adopt the conclusive presumption that persons fleeing their homes during a given period marked by violence or disaster have done so for reasons related to violence or disaster and are therefore entitled to housing, land and property restitution. In such cases, administrative and judicial authorities may independently establish the facts related to undocumented restitution claims.

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15.8 States shall not recognize as valid any housing, land and/or property transaction, including any transfer that was made under duress, or which was otherwise coerced or forced, either directly or indirectly, or which was carried out contrary to international human rights standards.

16. The Rights of Tenants and other Non-Owners 16.1

States should ensure that the rights of tenants, social occupancy rights holders and other legitimate occupants or users of housing, land and property are recognized within restitution Programs. To the maximum extent possible, States should ensure that such persons are able to return to and re-possess and use their housing, land and property in a similar manner to those possessing formal ownership rights.

17. Secondary Occupants 17.1

States should ensure that secondary occupants are protected against arbitrary or unlawful forced eviction. States shall ensure, in cases where evictions of such occupants are deemed justifiable and unavoidable for the purposes of housing, land and property restitution, that evictions are carried out in a manner which is compatible with international human rights law and standards, such that secondary occupants are afforded safeguards of due process, including, inter alia, an opportunity for genuine consultation, adequate and reasonable notice, and the provision of legal remedies, including opportunities for legal redress.

17.2

States should ensure that the safeguards of due process extended to secondary occupants do not prejudice the rights of legitimate owners, tenants and other rights holders to repossess the housing, land and property in question in a just and timely manner.

17.3

States should, in cases where evictions of secondary occupants are justifiable and unavoidable, take positive measures to protect those who do not have the means to access any other adequate housing other than that which they are currently occupying from homelessness and other violations of their right to adequate housing.

States should undertake to identify and provide alternative housing and/or land for such occupants, including on a temporary basis, as a means to facilitate the timely restitution of refugee and displaced persons housing, land and property. Lack of such alternatives, however, should not unnecessarily delay the implementation and enforcement of decisions by relevant bodies regarding housing, land and property restitution.

17.4

States may consider, in cases where housing, land and property has been sold by secondary occupants to third parties acting in good faith, establishing mechanisms to provide compensation to injured third parties. The egregiousness of the underlying displacement, however, may arguably give rise to constructive notice of the illegality of purchasing abandoned property, pre-empting the formation of bona fide property interests in such cases.

18. Legislative Measures 18.1

States should ensure the right of refugees and displaced persons to housing, land and property restitution is recognized as an essential component of the rule of law.

States should ensure the right to housing, land and property restitution through all necessary legislative means, including through the adoption, amendment, reform, or repeal of relevant laws, regulations and/or practices. States should develop a legal framework for protecting the right to housing, land and property restitution which is clear, consistent and, where necessary, consolidated in a single law.

18.2 States should ensure that all relevant laws clearly delineate every person and/ or affected group that is legally entitled to the restitution of their housing, land and property, most notably refugees and displaced persons. Subsidiary claimants should similarly be recognized, including resident family members at the time of displacement, spouses, domestic partners, dependents, legal heirs and others who should be entitled to claim on the same basis as primary claimants.

18.3 States should ensure that national legislation related to housing, land and property restitution is internally consistent, as well as compatible with pre-existing relevant agreements, such as peace agreements and voluntary repatriation agreements, so long as these agreements are themselves compatible with international human rights, refugee and humanitarian law and related standards.

19. Prohibition of Arbitrary and Discriminatory Laws 19.1

States should neither adopt nor apply laws which prejudice the restitution process, in particular through arbitrary, discriminatory, or otherwise unjust abandonment laws or statues of limitations.

19.2 States should take immediate steps to repeal unjust or arbitrary laws, and laws which otherwise have a discriminatory effect on the enjoyment of the right to housing, land and property restitution, and should ensure remedies for those wrongfully harmed by the prior application of such laws.

19.3 States should ensure that all national policies related to the right to housing, land and property restitution fully guarantee the rights of women and girls to non-discrimination and to equality in both law and practice.

20. Enforcement of Restitution Decisions and Judgments 20.1 States should designate specific public agencies to be entrusted with enforcing housing, land and property restitution decisions and judgments.

20.2 States should ensure, through law and other appropriate means, that local and national authorities are legally obligated to respect, implement and enforce decisions and judgments made by relevant bodies regarding housing, land and property restitution.

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20.3 States should adopt specific measures to prevent the public obstruction of enforcement of housing, land and property restitution decisions and judgments.

Threats or attacks against officials and agencies carrying out restitution Programs should be fully investigated and prosecuted.

20.4 States should adopt specific measures to prevent the destruction or looting of contested or abandoned housing, land and property. In order to minimize destruction and looting, States should develop procedures to inventory the contents of claimed housing, land and property within the context of housing, land and property restitution Programs.

20.5 States should implement public information campaigns aimed at informing secondary occupants and other relevant parties of their rights and of the legal consequences of non-compliance with housing, land and property restitution decisions and judgments, including failing to vacate occupied housing, land and property voluntarily and damaging and/or looting of occupied housing, land and property.

21. Compensation 21.1

All refugees and displaced persons have the right to full and effective compensation as an integral component of the restitution process. Compensation may be monetary or in kind. States shall, in order to comply with the principle of restorative justice, ensure that the remedy of compensation is only be used when the remedy of restitution is not factually possible or when the injured party knowingly and voluntarily accepts compensation in lieu of restitution, or when the terms of a negotiated peace settlement provide for a combination of restitution and compensation.

21.2 States should ensure, as a rule, that restitution is only deemed factually impossible in exceptional circumstances, namely when housing, land and/or property is destroyed or when it no longer exists, as determined by an independent, impartial tribunal.

Even under such circumstances the holder of the housing, land and/or property right should have the option to repair or rebuild whenever possible. In some situations, a combination of compensation and restitution may be the most appropriate remedy and form of restorative justice.

Section VI. THE ROLE OF THE INTERNATIONAL COMMUNITY, INCLUDING INTERNATIONAL ORGANIZATIONS 22. Responsibility of the International Community 22.1 The international community should promote and protect the right to housing, land and property restitution, as well as the right to voluntary return in safety and dignity.

22.2 International financial, trade, development and other related institutions and agencies, including member or donor States that have voting rights within such bodies, should take fully into account the prohibition against unlawful or arbitrary displacement and, in particular, the prohibition under international human rights law and related standards on the practice of forced evictions.

22.3 International organizations should work with national governments and share expertise on the development of national housing, land and property restitution policies and Programs and help ensure their compatibility with international human rights, refugee and humanitarian law and related standards. International organizations should also support the monitoring of their implementation.

22.4 International organizations, including the United Nations, should strive to ensure that peace agreements and voluntary repatriation agreements contain provisions related to housing, land and property restitution, including through inter alia the establishment of national procedures, institutions, mechanisms and legal frameworks.

22.5 International peace operations, in pursuing their overall mandate, should help to maintain a secure and stable environment wherein appropriate housing, land and property restitution policies and Programs may be successfully implemented and enforced.

22.6 International peace operations, depending on the mission context, should be requested to support the protection of the right to housing, land and property restitution, including through the enforcement of restitution decisions and judgments.

Member States in the Security Council should consider including this role in the mandate of peace operations.

22.7 International organizations and peace operations should avoid occupying, renting or purchasing housing, land and property over which the rights holder does not currently have access or control, and should require that their staff do the same. Similarly, international organizations and peace operations should ensure that bodies or processes under their control or supervision do not obstruct, directly or indirectly, the restitution of housing, land and property.

Section VII.

INTERPRETATION

23. Interpretation 23.1

The Principles on Housing and Property Restitution for Refugees and Displaced Persons shall not be interpreted as limiting, altering or otherwise prejudicing the rights recognized under international human rights, refugee and humanitarian law and related standards, or rights consistent with these laws and standards as recognized under national law.

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ANNEX 2 - THE MY HOME APP The My Home App should form the cornerstone of any new World Restitution Agency, with the institution in effect built around the use of the App by those claiming and asserting HLP restitution rights. Annex 2 outlines the parameters of the App and how it could work in practice: Users will download the App from the internet and then open it when they wish to use it. Once opened, users will see: WELCOME TO THE MY HOME APP. Users will then see the three main items on a drop-down menu, which will appear as follows:

1. UNDERSTANDING THE MY HOME APP 2. FILE YOUR MY HOME CLAIM HERE 3. SIGN IN TO CONTINUE YOUR CLAIM Once the user clicks on 1. UNDERSTANDING THE MY HOME APP they will then see the following items: •

This App is Free and Will Always be Free

•

Who Should Use This App?

•

Who Should Not Use This App?

•

You Have Housing, Land and Property Rights to Restitution

•

What Does This App Do?

•

What This App Does Not Do?

•

This App is Encrypted and Secure

•

Your Data is Yours and Will Not Be Sold

The contents of each of these items will read as follows: THIS APP IS FREE AND WILL ALWAYS BE FREE This App is free and will always be free. You will never be asked to pay for any of the services associated with this App. WHO SHOULD USE THIS APP? This App is for refugees, asylum seekers and internally displaced persons and their families who have left homes, lands and/or properties behind in their places they lived before they fled.

Whether or not you have received a formal confirmation of your status or if you have been formally accepted as a refugee within a resettlement programme, you may still use this App. If you have become a citizen in your country of resettlement, you may still use this App. If you are neither a refugee, asylum seeker or internally displaced person and family you should not use this App. WHO SHOULD NOT USE THIS APP? If you are neither a refugee, asylum seeker or internally displaced person and family you should not use this App. YOU HAVE HOUSING, LAND AND PROPERTY RIGHTS TO RESTITUTION If you are a refugee, asylum seeker or internally displaced person or family member under international law you and your family have legal rights to return to, reassert control over and repossess the homes, lands and properties you owned or lived in at the time of your displacement. This is called the right to housing, land and property restitution. You can learn more about these right in this document. Using this App, helps a user build a case for HLP restitution, but will not guarantee that you get your home, land or property back. This App simply allows you to account for any HLP grievances you have following your displacement.

WHAT DOES THIS APP DO? Using this App allows you to present information and evidence about the home, land and/ or property you left behind when you fled your place of origin. It will allow refugees and IDPs everywhere to create unique claims files which will then be securely stored in a database. .

WHAT THIS APP DOES NOT DO Using this App does not guarantee that you will be able to return home, recover or have restored to you the home, land and/or property you left behind when you fled your place of origin. Your claim does not constitute a formal legal claim nor a guarantee that your claim will ever be heard by a judge or competent tribunal.

THIS APP IS ENCRYPTED AND SECURE This App is encrypted and secure. Once you have created a claim file, no one other than you will be able to alter or amend this claim file. Your claim will not be published on the internet. Your claim will not be provided to the government of the country from which you fled, or any other government.

The App will be managed, maintained and updated on a regular basis. The My Home App database will only be accessible to official restitution bodies established with a view to securing refugee and IDP restitution rights once such bodies have been legally approved by the relevant authorities and determined by the United Nations to constitute a fair, independent and impartial body.

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YOUR DATA IS YOURS AND WILL NOT BE SOLD The data you place in the database when using the App belongs to you and is private. Your data will not be sold, shared, or distributed to any person, company or institution without your express permission and you’re your data will never be utilised for financial gain.

Once the user clicks on 2. FILE YOUR HLP CLAIM HERE they will then see the following items:

GETTING STARTED Once the user clicks on GETTING STARTED they will then see the following items: Step 1 - Create a Unique Case File Step 2 - Authenticate Your Case File with a Unique Password Step 3 - Complete all Questions in the Form Below Step 4 - Review Your Unique Case File and Please Download Relevant Documents Step 5 - What to Do Once Your Claim Has Been Filed?

Step 6 - How Can We Contact You? Need Assistance? - Contact the My Home App Helpdesk The contents of each of these items will read as follows: STEP 1 - CREATE A UNIQUE CASE FILE This App allows you to create a unique case file to which only you will have access. If you wish to create such a unique case file, click HERE. Once the user clicks on HERE they will then see the following: Click HERE if you wish to create a unique case file.

Once the user clicks on HERE they will then see the following: Your unique case file number is: (NOTE: The user will then see a computer-generated unique case file number issued only once to one user.)

Please remember your unique case file number. You will need this and a unique password to access your unique case file. Go to Step Two.

STEP 2 - AUTHENTICATE YOUR CASE FILE WITH A UNIQUE PASSWORD Your unique case file number is: . You may now create a unique password which will allow you to access your case file at any time. In creating your unique password, please use at least one capital letter, one number and one symbol. This will strengthen your password.

Write your password here: Re-write your password here: Your password is: STEP 3 - COMPLETE ALL QUESTIONS IN THE FORM BELOW Please complete the questionnaire that follows here. Please answer all of the 17 questions. If you cannot or do not wish to answer any of the questions, please write n/a in the space indicated after the question.

Under each question you will see a reminder reading: If you have scans of original documents or photographs supporting this claim, please download them here: Please do provide such documents if possible as they will strongly support your housing, land and/or property claim.

Question 1 - What is Your Name (and the names of any dependents)

Question 1.1 - Do you have a national ID number, passport number, Driver’s License, or United Nations issued or INGO registration number or other documents proving your identity? Your data will not be shared, sold, or distributed in any manner without your express consent.

Question 1.2 - Do you have an email address, phone number or other means in order to contact you regarding your claim?

If you have scans of original documents or photographs supporting this claim, please download them here:

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Question 2 - Did you or your family leave any housing, land or property behind over which you have formal or informal rights? If yes, please submit relevant documents or photographs.

If you have scans of original documents or photographs supporting this claim, please download them here: Question 3 - What was your full address when you fled? (User is presented with a MAP, where they can zoom it and drop a pin)

Question 3.1 - Your country (Provided in a drop down list, if the Country can’t be found then free text answer is provided)

Question 3.2 - Your region (Provided in a drop down list, if the Country can’t be found then free text answer is provided)

Question 3.3 - Your city (Provided in a drop down list, if the Country can’t be found then free text answer is provided)

Question 3.4 - Your town (Provided in a drop down list, if the Country can’t be found then free text answer is provided)

Question 3.5 - Your village (Provided in a drop down list, if the Country can’t be found then free text answer is provided)

Question 3.6 - Your neighbourhood (Provided in a drop down list, if the Country can’t be found then free text answer is provided)

Question 3.7 - Your street address (Provided in a drop down list, if the Country can’t be found then free text answer is provided)

Question 3.8 - Do you have a GIS-reference of the location of your HLP claim? If so, please indicate this here. (User is presented with a MAP, where they can zoom it and drop a pin)

If you have scans of original documents or photographs supporting this claim, please download them here: Question 4 - What type of home did you have? Single, non-attached family dwelling? Attached family dwelling (row house)? Apartment? Collective home? Shack? Other? (Provided in drop down list and if a user selects ‘other’ a free text answer is provided)

Question 4.1 - Please identify the size of the land plot and the location, village or town. Are there house(s), and/or other buildings on this property? Briefly describe all improvements. (User will have two fields, the first will be numerical, the second will be the metric squared which the user can only select and not enter themselves – e.g. m2, acres, hectares, or sq ft.)

Question 5 - How long did you live there? (User is presented with two fields, the first is numerical, the second is a drop down list of (Years or months)

If you have scans of original documents or photographs supporting this claim, please download them here:

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Question 6 - Are you only claiming this home, or do you have additional property claims?

If you have scans of original documents or photographs supporting this claim, please download them here: Question 7 - What date did you leave your home for the last time?

If you have scans of original documents or photographs supporting this claim, please download them here: Question 8 - Were you ordered to leave? (Yes or not question, if the user selects no, the remainder of question 8 is not showed and the user skips to question 9)

Question 8.1 - Was this based on a particular law or policy? -- Who ordered you to leave? (If yes, please describe)

Question 8.2 - Are abandonment laws relevant? (If yes, please describe)

Question 8.3 - Were you served with papers ordering you to leave? Do you have these?

69 Question 8.4 - Are you a victim of discrimination? (If yes, please describe)

Question 8.5 - Would you have a judicial or other remedy if you returned home? (If yes, please describe)

Question 8.6 - Were you forced to sign any contract under duress when you fled which affected your HLP rights? (If yes, please describe)

Question 8.7 - Do you think any other person, company or institution will claim your property? (If yes, please describe)

Question 8.8 - Do you have a last will and testament? If so, is your claiming HLP asset included within your last will and testament? Are relevant HLP inheritance issues clarified? (If yes, please describe)

If you have scans of original documents or photographs supporting this claim, please download them here: Question 9 - Do you know the current status of your home? Is it damaged, destroyed or occupied by a secondary occupant? Please describe

70 If you have scans of original documents or photographs supporting this claim, please download them here: Question 10 - Did you own your home, land or property? If so, was this ownership in your name?

If not, whose name - a person, company, trust, other?

If you have scans of original documents or photographs supporting this claim, please download them here: Question 11 - Do you have any documents proving these rights such as title deeds, cadastral statements, electricity, phone, gas, water bills, etc? If yes, what and where are these documents located?

Question 11.1 - Can you name anyone (chiefs, local administrators, neighbors, or other persons) who could verify these ownership or user rights? Do you have sworn statements from neighbours verifying your claim?

If you have scans of original documents or photographs supporting this claim, please download them here: Question 12 - If you were a tenant, did you have a contract with the lawful owner?

If you have scans of original documents or photographs supporting this claim, please download them here:

Question 13 - Were you neither an owner nor a tenant when you fled? Were you a customary owner and/or occupant of non-registered lands, an informal sector dwellers such as a slum dweller, squatter or homeless or landless person?

If you have scans of original documents or photographs supporting this claim, please download them here: Question 14 - What do you estimate the financial value of your home to be in USD?

If you have scans of original documents or photographs supporting this claim, please download them here: Question 15 - Describe the Contents of the home and their monetary value (User is presented with a form which has a text, once the text is finished then the user can type in the value of the item, this list then repeats and appears as a table as it is being completed)

If you have scans of original documents or photographs supporting this claim, please download them here: Question 16 - Would you accept compensation in lieu of restitution? (If yes how much – should be a question that only appears if the user selects yes)

If you have scans of original documents or photographs supporting this claim, please download them here: Question 17 - Would you like to add any additional information regarding your HLP claim?

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72 If you have scans of original documents or photographs supporting this claim, please download them here: STEP 4 - REVIEW YOUR UNIQUE CASE FILE AND PLEASE DOWNLOAD RELEVANT DOCUMENTS You will have an opportunity to place any evidence you deem appropriate into the secure My Home App database. You can either upload a PDF file or a picture using your phone of the document and download the picture directly.

STEP 5 - WHAT TO DO ONCE YOUR CLAIM HAS BEEN FILED? Thank you for completing the My Home App questionnaire. Your file is now stored in the secure My App database. If you need to amend or add to your unique case file you may do this, at any time, by opening the App and reverting to the questionnaire. We will only contact you if you request assistance.

STEP 6 - HOW CAN WE CONTACT YOU? Please double-check the information you placed in question 1.2 and ensure we have a way of contacting you. (Maybe their information is presented here again, for the user to review) NEED ASSISTANCE? - CONTACT THE MY HOME APP’S HELPDESK If you need assistance of any sort concerning your use of the App, please write to the My Home App Helpdesk and we will assist you.

Image: © Kadir Van Lohuizen. Ezbet Abed Draboo, Jabalya refugee camp, Gaza Strip, Palestine - January, 2009.

ABOUT DISPLACEMENT SOLUTIONS Displacement Solutions (DS) was established in December 2006 to fill a major gap in global efforts to prevent and resolve forced displacement, and to protect and restore the housing, land and property rights for those who are displaced. DS conducts field-level projects focusing on these policy, legal and educational issues in specific countries, as well as broader thematic projects designed to raise the profile of displacement issues on the international agenda. DS has worked in more than 30 countries and played a catalytic role in facilitating innovative policy, normative and legal changes protecting displaced communities who have lost their homes and lands. It has produced more than 100 cutting edge books, publications, reports and films and designed the world’s first law school course on climate displacement. The primary author of this report is DS Director and Founder, Scott Leckie, a leading international expert on HLP restitution issues, having designed restitution procedures and laws in a range of settings including Kosovo, the Republic of Georgia, Myanmar, Timor Leste, Albania, Sri Lanka, Maldives, Iraq, Palestine, Israel, Syria, Nepal and elsewhere. Together with its partners, DS addresses these issues on which few other organisations work directly or have expertise. A comprehensive overview of DS’ advocacy, normative and operational work is available on our website. info@displacementsolutions.org www.displacementsolutions.org

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Images: © Kadir Van Lohuizen. A man stands in his heavily destroyed house in Aita Chaab.

Aita Chaab is a village on the border with Israel.

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All Images: © Kadir Van Lohuizen