DISPLACED AND DISPOSSESSED Conflict-affected communities and their land of origin in ,

May 2018 Acknowledgements

This paper was only made possible by the commitment and extensive contributions of many displaced people, both within the research team and others who contributed information, testimony and much more. The research was also only possible with the dedication of the staff and volunteers involved in the research team. This included putting themselves in risky situations to obtain critical information to inform and shape this report. The research for this report was conducted by Naushawng Development Institute, Nyein Foundation and Oxfam, with support from Kachin Baptist Convention, Metta Development Foundation and Trócaire.

This publication has been produced with the assistance of the European Union. Its contents are the sole responsibility of the Durable Peace Programme and can in no way be taken to reflect the views of the European Union. Contents

Summary 5

The importance of land in Kachin 6

IDPs are losing their land of origin 9

A legal basis for IDP land rights protections 11

The unclear legal status of forcibly abandoned land causes confusion 14

Restricted access increases impunity 15

Laws are used to dispossess IDPs of their land 17 unfairly

Fears that unused or undocumented land will be lost 20

The impact of loss of land on women 23

IDPs lack access to information and justice mechanisms 24

Recommendations 25 Person displaced by conflict, Kachin State Kachin conflict, by displaced Person and work as soon as I can. I wish both the armed armed the I wishboth as I can. as soon work and ing. The longer this war is, the harder our lives are. are. lives our harder the is, war this longer The ing. I want this war to end. I want to go back to my land land my to go back to I want end. to war this I want groups and the military can find a way to stop fight- stop to way a find can military the and groups

Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar 4 failures ofthepeaceprocessinKachin State. want toreturntheirland,andthatthebarriersaredirectlylinked to thevoicesofthosedisplacedbyconflict,itisclearthattheyoverwhelmingly feed intothepeaceprocessisacentralcomponentofprogramme.Listening and developmentinKachin Statesince2015.Ensuringthatthevoicesofallpeople local organizations that have been supporting peace, reconciliation, rehabilitation The DurablePeaceProgramme(DPP)isaconsortiumofseveninternationaland without theknowledgeorconsentofdisplacedindividuals. remedy isavailableincaseswherelandhasbeenappropriatedbyexternalactors protect andpromotesecurerightstolandoforiginensurethatequitable displaced peoplebytakingbothimmediateandlonger-termactiontorecognize, All stakeholderscanplayaroleinresolvingthelackofclarityoverlandrightsfor development efforts. reclaim theirlandfromthirdpartiesislikelytounderminepeace,reconciliationand displaced tosafelyandvoluntarilyreturntheirlandoforigin,inability one thatrequiresurgentaction.Evenwhenconditionsareeventuallymetforthose Losing theirlandoforiginisapressingissueforpeopledisplacedbyconflict,and land thathasbeenleftbehind,increasingtensions. reduce accountabilityandtransparencyfurtherexacerbatefearsaboutthe circumstances ofdisplacement.Forcedandarbitraryrestrictionsonmovement undermines therightsofthosedisplacedbyconflictandignoresexceptional accountability. Legal oradministrative procedures arebeingusedinawaythat origin, yetmuchoftheirlandisbeingappropriatedbyarangeactors,withlittle People displacedbyconflictinKachin Statewanttoreturninsafetytheirlandof Summary

5 Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar in 1

3 Field 6

2

4 In order to protect the anonymity of 7 and are increasingly gaining media attention. and are increasingly 5 Most IDPs had access to land at their place of origin prior to displacement Most IDPs had access to land at or informal purchase); (primarily through customary tenure Most IDPs want to return to their land of origin. Most IDPs are engaged in agriculture and/or livestock-based livelihoods;

interviewees, this report does not reproduce extensive detail from case studies, interviewees, this report does not reproduce extensive detail from issues systemic with broader researched cases the in identified trends links but related to IDPs’ land of origin. the necessary Although the timing for any possible return remains unclear, where preconditions should be in place to enable eventual return and reintegration of origin land their to rights IDPs’ that be would precondition important An possible. (IASC) are clarified and legally recognized. The Inter-Agency Standing Committee stipulates that Framework on Durable Solutions for Internally Displaced Persons a achieving for component key a is property and land housing, of restoration the The importance of land in Kachin The importance to most internally displaced persons (IDPs) The issue of land is very important Kachin. The research underpinning this briefing paper found that: The research underpinning this briefing Kachin. • • This report was produced to explore growing concerns that IDPs’ land of origin This report was produced to explore growing concerns that IDPs’ is being acquired by various actors without the permission of, or in Kachin regularly consultation with, IDPs themselves. These concerns have been raised by IDPs throughout Kachin research carried out as preparation for this brief has produced new evidence of research carried out as preparation for this brief has produced new what is happening to land vacated by IDPs. •

Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar 6 of theprinciplethatallIDPswillretaintheirpreviousrights to landandproperty. importance ofrestitutioninaddressingtransitionaljustice,includinganassertion nine humanitarianorganizations workingcloselywithIDPs,hasalsoreiteratedthe state. This reportcannotdo justice tothefull extent ofthesedynamics, significance. Burial,ancestralandspiritualgroundsaresituatedthroughoutthe the spiritualbirthplaceofKachin peopletosmallprayerhillshavinglocalized durable solutionforpeace. opportunities. linked toanunderstandableneedrestoretheirpreviouslivelihoodsandeconomic For most IDPs surveyed in Kachin, their desire to return to theirland oforiginisin part prompted byanescalationinarmedconflictKachin. active armedconflict. reported byIDPsarethepresenceofarmedactors,landminesand IDPs’ perceptions, the DPP report establishes that the three main barriersto return remains highlyvolatileandunpredictable.Throughanextensivesurveydetailing are directlylinkedtothefailureofpeaceprocessinKachin, acontextthat that IDPs surveyed overwhelmingly want to return and that the barriers to return The DurablePeaceProgramme(DPP)’sendlineassessmentstronglyreinforcesboth Kachin State. reality mustinformthewayinwhichstakeholders approachIDPlandissuesin for lostlandappearstobeaninferioroption IDPs comparedwithreturn.This a ‘freechoiceofreturntotheiroriginallocations’.Resettlementorcompensation asset. TheJST, whosemembersdoextensiveworkwithIDPpopulations,arguesfor is importanttorecognizethatIDPs’landmorethanjustareplaceableeconomic over thepastthreeyearslevelsofuncertaintyhaveincreased, remains strong,perceptionsabouttheactualpossibilityofreturnindicatethat and is a key source of identity, from the Myitsone confluence many parts of the world, land in Kachin State has a social and cultural significance, 13 Land,however,isaboutfarmorethaneconomicassets.Asin ‘IDPs and any other people affected by armed conflicts will retain tion, (right to recover their properties, housing and land, and to 11 request compensation for those who lost family members, were transitional justice should apply, this includes: right to restitu- AlthoughforamajorityoftheseIDPsthedesiretoreturn injured or lost properties) and protection of civil and political all their previous rights and/or entitlements they might have; 8 TheJointStrategyTeam (JST), Joint Strategy Team, Kachin, 2017 9 acoordinatingbodyof 14 being regarded as 12 whichislikely 15 butit rights.’ 10

7 Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar Kachin State, which has an area of roughly 89,000 square kilometres, kilometres, square 89,000 roughly of area an has which State, Kachin Independence Kachin The conflict. by affected severely been has Independence Kachin the winged armed its and (KIO) Organisation Forces Armed Myanmar the with conflict in been have (KIA) Army conflict armed of iteration latest The 1960s. the since ) (the the to led rapidly This in 2011. collapsing a ceasefire of result is the remain whom of all nearly 100,000 people, over of displacement often traumatic, are displacement of experiences Their today. displaced and property and livelihoods losing jungle, the into fleeing involving fighting, of resumption the after years Six violence. to subject being volatile. and tense remains situation the and elusive remains peace of control administrative the is under state the of parts some in Land forces’. guard ‘border by is controlled it areas other in while KIO/A, the administered and of, control the under is formally however, land, Most the within Tatmadaw, the by backed government, Myanmar the by, be wielded may influence areas certain In framework. legal national decisions to relation in including actors, above the of more or two by communities rural from people of majority vast use. The land about and cultivation, shifting including agriculture, in engage state the across is progressing, farmland of titling formal While forestry. community but titled is not IDPs, by abandoned forcibly that including land, much subject been has Kachin arrangements. tenure land customary is under with years, recent in acquisition land large-scale of waves several to strong as its well as resources, forest and mineral its by motivated actors market. Chinese the to proximity and potential agricultural Land rights governance and of land in Kachin

Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar 8 appears tobemoreadhoc andopportunistic,ratherthansystematic,such as Most small-scaleappropriation ofIDPs’landhighlightedbythoseinterviewed the appropriationofIDPland oforiginforthedevelopmentbananaplantations. . TheJSTsentaletterinOctober2017relaying theconcernsofIDPsabout such as in contested areas, including areas close to the road from to of natural resources, fertile ground and/or strategic military value to armed actors, land appeartobeparticularlyconcentratedinareas thathaveagreaterabundance According tofieldinvestigations,theinstancesoflarge-scale appropriationofIDPs’ and foreigncompanies. members ofnon-displacedcommunitiesandMyanmar companiestoarmedactors convenience. The actors allegedly involved in the appropriations ranged from and small-large-scalecommercialactivities, aswellopportunismand Reasons fortheseacquisitionswereprimarilyreportedtoincludemilitaryobjectives where theirlandwasusedforgoldminingoperations: of hectares,includingforagriculturalplantations.Oneintervieweedetailedacase ranged fromsmall-scaleencroachmentonlandtoacquisitionsofseveralhundreds large-scale agriculture,andforcivilianhabitationotherpurposes.Appropriation use byarmedactors,fortheextractionofnaturalresources,small-scaleand Many IDPsinterviewedclaimedthattheirlandoforiginwasbeingappropriatedfor IDPs arelosingtheirlandoforigin original village… Isaw that much of our farmland was devastat- I came to know that businessmen were doing gold mining at our report the case to village-level authorities, no action was taken. ed because of the gold mining. As we didn’t have authority and money, we couldn’t do anything about it. Although we went to

9 Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar The Irrawaddy, 3 October 2017 Irrawaddy, The be a growing problem in the area.’ the in problem a growing be . 17 secretary to establish a land scrutiny commission in order to to order in commission scrutiny a land establish to secretary Gauging the full scale of appropriation of land to which Gauging the full scale of appropriation 16 establish the amount of redistributed land and how much of it it of much how and land redistributed of amount the establish process and the resettlement of IDPs but acknowledged it could could it acknowledged but IDPs of resettlement the and process ‘Kachin State Chief Minister Dr. Hket … ordered the state office’s office’s state the … ordered Hket Dr. Minister Chief State ‘Kachin belongs to IDPs. He declined to give a time frame for the scrutiny scrutiny the for frame a time give to declined He IDPs. to belongs inter-communal land appropriation of one family’s land by another. However, there another. However, family’s land by of one land appropriation inter-communal the for be to appearing land IDPs’ of appropriation small-scale of instances also are said that they often feared of armed actors. IDPs interviewed strategic purposes fear also They actors. armed these of presence the of because returning or visiting of land but they cannot additional larger-scale appropriation that there may be required consultation of land access problems mean that the know for sure, since take place. rights holders cannot of appropriation of IDPs’ land in field research, the full extent In the scope of existing that the scale of the though multiple sources suggest could not be assessed, Kachin of land for banana plantations, that of large-scale acquisitions problem, including could be considerable. IDPs still have rights would require extensive research, including documentation IDPs still have rights would require at some point a full review will need to be done and checking of claims. Although process, at present this is not feasible, in part as part of a robust land restitution landmines. of the presence and conflict armed to active relating to insecurity due State Chief Minister, however, suggest Kachin Comments in October 2017 by the that an official review is under consideration

Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar 10 in MyanmarandKachin, asthisexistselsewhere, This reportdoesnotprovideanin-depthanalysisoflandlawsandpoliciesapplying protections A legalbasisforIDPlandrights • property orlandandassistinreparation. line withtheUNGuidingPrinciplesthatreiteratea duty tosupportthemrecover provide health,educationandlivelihoodopportunities forIDPs,whichisbroadlyin In nationallaws,theGovernmentofMyanmaralso hasapositiveobligationto protections. of damagetoand loss oflandandproperty, as wellrestitution,andintermsof natural disaster,canbeinterpretedtoaddressthesituationofIDPs,bothinterms and lossoflivelihoodsasaresultarmedconflict,withintheofficialdefinition Moreover, provisionsrelatingtotheexceptionalcircumstancesofdisplacement allowing forotheractorstoarbitrarilytakeoverlandforciblyabandonedbyIDPs. • • • • the relevantnationallegislationandpoliciesapplicable tothiscontextare: certain pointstoclarifythestatusofIDPlandrightsinlawandpractice.Among origin, evenwhendisplaced.Accordingtotheselaws,therearenolegalprovisions the internationalcommunitysuggestthatIDPsretaintheirrightstolandof These laws,policiesandprinciplesfromtheKIO,GovernmentofMyanmar • • • governing thelandoforiginforIDPsare: The threekeysetsofinternationalprinciplesthatshouldinformnationallegislation • •

livestock breedingandother vocationsrequiredforvictims’.Thatthislaw has apositiveobligationtowards ‘rehabilitationinordertorestoreagriculture, keeping recordsofdamages andlossesstipulatesthatthegovernment both short-termandlong-term emergencyresponsemeasures.Thisincludes under article18,tooutlinetheproceduresminimize lossesandincludes and disaster includes‘man-madeaccidents’,makesexplicit referenceto‘violence The 2013NaturalDisasterManagementLaw,whose definitionofnatural a landusepolicyunderdevelopmentbytheKIO of IDPs the 2016NationalLandUsePolicy(NLUP),whichexplicitlyreferencesrights Violations ofInternationalHumanitarianLaw. for VictimsofGrossViolationsInternationalHumanRightsLawandSerious the BasicPrinciplesandGuidelinesonRighttoaRemedyReparation the UNGuidingPrinciplesonInternalDisplacement and DisplacedPersons(the‘PinheiroPrinciples’) the UnitedNationsPrinciplesonHousingandPropertyRestitutionforRefugees the 2013NaturalDisasterManagementLaw. Benefits the 2013LawofProtectionFarmers’RightsandEnhancementtheir the 2012FarmlandLaw the 2012V armed ’ as a listed cause of a natural disaster. acant, FallowandVirginLandsManagementLaw(VFVLaw) 18 butitisimportanttonote 20 It goes on, 19

11 Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar . This provision 21 also recognizes that, for ethnic nationals 22 The 2016 National Land Use Policy is significant because it stipulates a case of exception, since in Myanmar is significant because it stipulates a case of exception, since in … or violence and conflict are part of the legal definition of ‘natural disaster those who other causes’. Assistance to farmers required under the law for restoring have lost their land would surely include measures to assist them in their farms and livelihoods. who have lost their land resources due to civil war, land confiscation, natural who have lost their land resources due to civil war, land confiscation, resettle to their original lands, the ‘desire to or other causes, disaster provided adequate land use rights and housing rights shall be systematically The 2013 Law of Protection of Farmers’ Rights and Enhancement of their The 2013 Law of Protection of Farmers’ Rights and Enhancement small Benefits refers to ‘giving priority assistance to farmers possessing a natural plots who encounter damage to the farm land and crops due to disaster or infestation of pests or diseases and other causes’ explicitly stipulates government responsibility to provide health, education explicitly stipulates government responsibility to provide health, is broadly and livelihood opportunities for persons affected by natural disaster IDPs in line with the UN Guiding Principles, which reiterate the duty to support to recover property or land and to assist in reparation.

• •

Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar 12 • • • • • • considered: From thislegalperspective,therearebothchallengesandopportunitiestobe •

along withthe1894Land AcquisitionAct.Inaddition,theNLUPisinitsearly The FarmlandLawandthe VFVLawarecurrentlybeingamendedinparliament, which makesithardtoaddress asingleissueasspecificIDPlandrights. There iscurrentlyawiderangeoflandlegislationand policyunderdiscussion, in accordance with international best practices and human rights standards’ restitution inconflict-affectedareas. to thegrabbingofIDPlandindicatearecognition ofIDPs’rightreturnand has alsoassistedinresolvinglanddisputes.Recent KIO/Astatementsrelating land tenure and issues individual land use certificates, and in some instances the UniongovernmentofformationaNationalLandUseCouncil, revised toreflectthesebasicprinciples.Despitetherecentannouncementof enforceable document,andcurrentlegislationmuststillbereviewed land tenureandhousingrightsofIDPs.TheNLUP,however,isnotalegally committing tothebasicprincipleofimplementingfairproceduresrelated The NLUPprovidessomegeneralguidanceforIDPs’returnandlandrestitution, land issues.ThishasnothappenedexplicitlyorclearlyinMyanmar,however. and Numerous internationalprinciplesprovideguidanceforrestitutionofIDPs’land, to authoritiesallowingacquisitionsofthislandbythirdpartiestakeplace. rules applyintheexceptionalcaseoflandabandonedbyIDPs,whichisleading from conflict.Thereappearstobeconfusionabouthowthese‘useitorloseit’ ‘exceptional’ circumstances,whichwouldalsoincludedisplacementresulting and thelandthenrevertstostate.Thisshouldnotapply,however,under of developing its own land policy. Rules differinareasunderthecontrolof the K without justification, Under normalcircumstances,iffarmlandisleftfallowforanumberofyears land usearenotapplied. Under suchexceptionalcircumstances,thenormalrulesthatgoverncivilian military purposes,ratherthancommercial,residentialoragriculturalpurposes. involved intheoccupationofland,muchwhichislikelytobeforstrategic Ongoing conflictleadstoasituationinwhicharmedactorsfromallsidesare for theirownpurposes. laws arebeingusedunfairlybyexternalactorstoregisterIDPs’landoforigin documenting landclaimsorformalizingtheirtenurerights,andthese land oforiginorrestitution.IDPsarelargelyunabletoengageinaprocess Myanmar’s landlawsdonotprovidesufficientguidanceonIDPs’returnto displacement in2011. living andfarmingundercustomarylandtenurearrangementspriortotheir land tenure rights. This is of relevance because most IDPs inKachin were mentioned above.ItisalsosignificantthattheNLUPrecognizescustomary This impliesthatpolicyisguidedbythethreesetsofinternationalprinciples administers landinareasnotcontrolledbythegovernment, Organisation/Army, whichcancausefurtherlegal confusion. TheKIO/A,which Law, hasbarelystarted,twoyearsafterthepolicy was announced. implementation ofthis,includingthedevelopment of aplannedNationalLand these same principles should be reflected in local legislation governing 24 farmersorbusinessesmayforfeittheirrightstoit 27 The KIO/A currently recognizes customary 28

achin Independence 26 isintheprocess 25 the 23 . 13 Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar

30 authorities. of transition to democracy. is not afraid of anyone as he has a good relationship with the the with relationship a good has as he anyone of afraid is not A wide range of issues are part of the longer-term reform are part of the of issues A wide range near the village. But that officer refused to get involved, saying saying involved, get to refused officer that But village. the near it had nothing to do with him… He [the businessman] refused refused businessman] [the He him… with do to nothing had it 29 to give us compensation despite the fact that it was asked for. He He for. asked was it that fact the despite us compensation give to We went to report the case to a military officer whose base is just just base is whose officer a military to case the report to went We Many of these cases are in Kachin State. are in Kachin Many of these cases stages of implementation, and land rights issues also feature in the national in the national issues also feature and land rights implementation, stages of dialogue. political agenda in relation to land, such as the status of customary land rights, of customary status the as land, such to relation in agenda by foreign and domestic protection against land grabbing women’s land rights, for farmers. need to have fairer judicial procedures investors and the of complaints in relation is continuing to process a backlog The government of Myanmar, mainly but land confiscations across the whole to thousands of from the start of the period not exclusively dating

The challenges described in this paper add an additional layer of complexity to an paper add an additional layer of in this The challenges described As a result, the issue of the rights to already very challenging policy environment. in spite of the real urgency of the issue land of IDPs is often forgotten or sidelined, by IDPs themselves in Kachin. and the priority given to land issues • Some cases suggest that some recognition of IDP rights exists, such as where local Some cases suggest that some recognition of IDP rights exists, such challenged land acquisitions have successfully (CSOs) organizations civil society was IDP land. under the VFV Law procedures, using the argument that the land or companies In others, village administrators have stood up for IDP land rights, they are using. have been reported to have paid compensation or rent for IDP land able to work In other instances, CSOs or local lawyers and paralegals have been compensation more informally towards dispute resolution, reaching some sort of The case studies researched for this briefing paper reveal legal uncertainty on The case studies researched for by IDPs. In some instances, interviewees what to do with land forcibly abandoned others land in IDP land, and register to VFV Law the used companies that alleged Law. Some interviewees claimed that both was registered using the Farmland of Agricultural the Department and (GAD) Department Administration General the (DALMS) were more favourable to businessmen Land Management and Statistics to a power imbalance that worked against IDPs. in registering their land, pointing or leaders refused to get involved in In some instances, village administrators to local military commanders, suggesting a resolving land disputes or deferred resolve disputes in relation to IDP clarity about how to or accountability lack of play, were at because more powerful interests it was clearly land. In some cases businesses. and some interviewees alleged corruption between local officials and a gold mining An interviewee whose land was being used by a businessman for operation reported: The unclear legal status of forcibly status The unclear legal causes confusion abandoned land

Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar 14 actors appropriating land to which IDPs may have a valid claim. This also presented are commonplace,andthese ultimatelyreduceaccountabilityandoversight of military checkpoints and other arbitrary restrictions on the movement of people assert anylandrightsthey mayhave.Onefindingofthefieldresearchwas that Barriers toreturnhavemeantthatsomeIDPs effectivelylosttheirabilityto Restricted accessincreases impunity definition ofnaturaldisaster. in the Natural Disaster Management Law, which recognizes ‘armed conflict’ in its property rights of people displaced by conflict, although protections are implied both. could eithermeanalackoflegalclarityor political will,oracombinationof administrative bodies,howtheyworkedvariedconsiderablyfromcasetocase.This studies pointedtoIDPsattemptingdifferentformsofredressinvolving but thatsensitivitytoIDPlandrightsdoesexistinsomeplaces.Thoughmultiplecase clear mechanismstoaddressdisputesarelackingandthatenforcementisadhoc, The differentwaysinwhichIDPlandisbeingappropriatedgivetheimpressionthat promised andneverpaid. compensation grantedisneitherjustnorfair–andinseveralcasesitwasonly agreement thatwasfoundmutuallyagreeablebybothparties.Often,however, Notably, thereisnoclearstatementinthelawabout protectionsforlandand 15 Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar not. by the military. on their lands but were were but lands their on their home. Many have have Many home. their go there [home]… I feel I feel [home]… go there even though I wished to to wished I even though stopped and investigated Even if there is peace, we we is peace, there if Even Almost all of the IDPs … IDPs the of all Almost are not able to go back to to go back to able not are I was scared of being shot shot being of scared I was tried to go back and check check and go back to tried threatened and insecure… insecure… and threatened mines have been cleared or or cleared been have mines will not be sure if the land- the if sure be will not Research indicated that IDPs in non Government controlled areas, areas controlled areas Government controlled and in KIO, the by reported harm or fear caused by a combination of artillery, gunfire and landmines. These factors effectively create barriers to IDPs being able to access their land. These restrictions what is monitor for IDPs to difficult make it happening to their land or to be consulted in village-level governance structures or as relation in out carried surveying land of part to land acquisitions. Consequently, many IDPs either do not know what is happening to their land or, if they do know, they struggle to access their villages and land of origin to assert their land rights. Both factors make it In another interview, an IDP reported being In another interview, an IDP reported Tatmadaw: denied access to their land by the practical obstacles for the research team the research team obstacles for practical investigate claims of land in its efforts to IDP informants have appropriation. Many at interrogated were they how explained to pass. unable were often checkpoints and granted, IDPs have reported Even if entry was they have faced intimidation in interviews that for their own safety, for and have feared there while landmines, to relation in instance of grave human rights were also accusations explained: abuses. As one interviewee

Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar 16 with’, shouldtherebesufficient evidence that theyarenotunfairly orunjustlydealt said peasantsandtake actiontoensure positive obligationto‘negotiatewiththe of Vacant, Fallow and Virgin Land has a the CentralCommitteeforManagement vacant, fallowandvirginlands’.Additionally, must verify‘whetherthelandsareinfact farmers or businesses. Township officials is actuallyavailablebeforeitallocatedto that mustbefollowedtoensureland In the VFV Law, there are clear procedures be revised. of procedures under the law, which should land suggests flaws in the implementation the VFVLawisusedbyotherstoacquireIDP significant periodoftime.Secondly,theway have livedonorinvestedinthelandfora a legalpermitorfarmlandcertificate,may secondary occupantsontheirlandwho,with challenging, owingtothepresenceof makes theIDPs’eventualreturnevenmore succeed informallyacquiringIDPland,it at stakehere.Firstly,whenotheractors by biggeractors.Therearetwomainissues and inothercasesitwasonalargerscale on thepartofnon-displacedcommunities it maysimplyhavebeenopportunisticaction Waingmaw andMomauk.Insomeinstances, across severaltownships,particularly exploitation. Thiswasfoundtohaveoccurred actors toacquireIDPlandforeconomic is reportedtohavebeenusedbyexternal out manageableagriculturalprojects’.It ‘rural farmersandfamilieswhowishtocarry land to‘Myanmarcitizeninvestors’and The VFVLaw provides for the transfer of their landunfairly dispossess IDPsof Laws areusedto themselves. land withoutanyaccountabilitytotheIDPs easier forexternalactorstoappropriateIDP 17 Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar However, objections to objections However, to prove that the land was not vacant. was land the that prove to While not explicit, it can be assumed rights that it is ‘unfair’ to acquire the fled have who farmers of land the to who conflict, who are not present and cannot give their permission. in the outlined claim process The land the easily how demonstrates Law VFV of IDPs dispossess to used be can law an submitting of origin. After their land application for the right to work or utilize ‘vacant, fallow and virgin land’, the relevant township official is obligated a the public by displaying to notify notice in the relevant government department office (Form 5). Thereafter, any individual has the right to raise an objection if they submit the necessary paperwork, together with evidence proving that the land in question is not vacant. fact in a VFV application can only be made

Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar 18 to certaincriteria. required toinspectthelanddeterminewhetheritisindeedVFVland,according In additiontotheForm5applicationbeingdisplayed,townshipDALMSofficeis development ofIDPland. were thenabletoassistwiththeprocess,andevenstopacquisition these cases,suchintermediariesfoundoutandinformedIDPsoftheForm5 only withthehelpoflocalCSOs,lawyersorparalegalswhobecomeinvolved.In There areexampleswhereIDPshavebeenabletoraiseobjections,butthiswas resources topursue,whicharelikelybeoutofreach for manyIDPs. Kachin State.Theobjection processrequiressignificantlegalunderstandingand process forsubmittinganobjection,whichisoftennotthecasemanyIDPsin they will then have to be able to read Myanmar language and also understand the period of30days.OnthesmallchancethatIDPsseeorbecomeawarenotice, costs). Eveniftheyareabletovisitperiodically,thenoticeisonlydisplayedfora they have been displaced and are generally unable to visit (due to restrictions and aware of anyForm 5 posted, because it would bedisplayedinanareafromwhich This process is highly problematic for IDPs in Kachin. It isunlikelythatIDPs would be most peoplewhohavebeendisplaced. within 30 days from the date of notification, the villagefromwhichtheyhavebeendisplaced. State, thechallengesareclearforIDPsinbeingable tomonitorannouncementsin Nonetheless, assumingthatthecorrectprocess was actuallyfollowedinKachin applications for farmland certificates was actually published at the village level. it was found that only 42.5 percent of respondents reported that a public list of village-level notificationsundertheFarmlandLawin theDryZoneandDeltaregions, be effectivelyremoved.Inresearchbydevelopment NGOGRET, whichconsidered may notalwaysbefollowedatvillagelevel,soopportunities forobjectionmay others in their absence. Procedures of public notification of farmland applications Farmland Law,andalsoexamplesreportedofIDPs’farmlandbeingregisteredby There arecomparableproceduresforsurveyinglandregistrationsunderthe2012 subject tocompetingclaims,includingthoseofIDPsdisplaced byconflict. conducted forthepurposeofmeasuringlandbutnotassessingwhetheritis of formerlanduse.IDPshavereportedthatinsomecasesinspectionsbeen seems thatsurveyorsmaynothavebeentoldabout,orignored,evidence on oftenout-of-datemapsratherthanventuringintopotentiallyunsafeareas),it inspections occur(whichmaynotalwaysbethecase,withDALMSofficersrelying use), orbytheexistenceofhousingorchardsonland.Inpractice,ifphysical village administrator(whoisresponsibleforkeepinganoverviewofland previously used or occupiedby IDPs by consulting local peopleand especially the as surveyorsfromtheLandDepartmentoughttobeableidentifyiflandwas 32 In theory,inspectionsshouldprovidesomeprotectionforIDPs, 31 which is apractical impossibility for 33

19 Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar Local land tenure arrangements Local land tenure and does not explicitly recognize customary land management and and does not explicitly recognize 34 agricultural practices, which were common in areas where much IDP land is agricultural practices, which were traditional the which in areas from moved have IDPs many Specifically, located. long been in use. Although this form of land practice of shifting cultivation has of the Farmland Law, there is no legal means use is acknowledged in article 3a kind this to rights of recognition or registration the for allowing instruction or in the 2016 NLUP. of land, even though it is recognized Farmland Law is unclear on customary land: Farmland Law is for much IDP land were customary, with no legal documentation. Farmland were customary, with no legal for much IDP land central to Law, which is 2012 Farmland under the are issued certificates paddy and agricultural land. A common formalizing land rights over existing not recognize ethnic modalities of land criticism of this law is that it does use

Fears that unused or undocumented or undocumented unused that Fears be lost land will likely more the displaced, are they longer the that concerned are interviewed IDPs or fallow, resulting in them will be unfairly reclassified as vacant it is that their land number of factors. These concerns are rooted in a losing their rights. •

Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar 20 would logicallyincludeconflict-relateddisplacement. no explicitreferencetodisplacementasaresultof conflict,thecategoryof‘other’ • • caused bynaturalhazards orlackofsecurityduetoothercauses’. year period,ifthere are exceptionalcircumstances, ‘for reasonssuchasdelays acquired landunderthelawbuthasfailedtodevelop itwithinastipulatedfour- Similarly, theVFVLawincludesprovisionstoprotect landrightsofwhoeverhas farm theirlandshouldqualifyasa‘soundreason’tobecomecaseofexception. The presenceofarmedconflictandinsecuritypreventinganIDPfromreturningto law states,however,that‘farmlandshallnotbefallowwithoutasoundreason’. avenue forthirdpartiestoregisterthislandinrecentyears.Article12(i)ofthe that theinabilityofIDPstofarmtheirlandoriginhasindeedofferedanother can berevokedandthelandrightsreallocated.Inpractice,researchhasshown Farmland Law,sincetheoreticallyrightstofarmlandthatisunused,orleft‘fallow’, do notapply.Theconcernthatfarmersmust‘useitorloseit’isreinforcedbythe of mostIDPs,theydorecognizethatundercertaincircumstancesnormalrules Although the VFV and Farmland laws were enacted in 2012, after the displacement receipts ortestimonyfromneighboursvillageadministrators. to landrightscanbebackedupincourtavarietyofways,includingwithtax they haveleftbehind.Underthecommon law systeminMyanmar,people’sclaims In spiteofthesefears,itdoesnotfollowthatIDPshavenolegalrightstotheland

One intervieweereported: one ofthepiecesevidencewithwhichtheycanprovetheirlanduserights. Farmland laws.Inlosingthesereceipts,IDPssurveyedfeelthattheyare use rights for farmers, particularly prior to the introduction of the 2012 VFV and using the land. Tax receipts have been one of the key ways to establish land are reportedlynolongerbeingissued,onthegroundsthatIDPs IDPs’ reports,thisfeariscompoundedbythefactthatlandusetaxreceipts is nolongerbeingusedandtheinfrastructureonitdecaying.Accordingto by thegovernmentpriorto2012,rightsmayseembe‘lost’becauseland Perceptions main IDPdisplacementsinKachin, whichoccurredin2011. most farmerswouldnothavehadthechancetoregistertheirlandprior New lawssince2011displacements: of statusunused and untaxedland:Evenonfarmlandrecognized Our lands were confiscated by the military, [but] we did not have any legal registration to show ownership of our land, like aForm [the time of] our[the ancestors. time of] We just did not know that we should even though we were working on this land for many years, since 7 35 .We do not have any legal documents to prove ownership Given thatthislawwasenactedin2012, have the documen 36 Whilethereis 21 Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar 22 favourable forwomen. women’s interests are not fully represented and that outcomes are generally less land disputes–thereisnotasinglewomanadministrator. Oftenthismeansthat the 330Township Administratorsnationwide–whoarecriticalinterlocutorsin heads and community leaders were men. Research by Namati indicates that of During datacollectionforthisreport,allrelevant governmentstaff,village with landtitlingordisputeresolution,ontheother hand,aredominatedbymen. they arelesslikelytotravelforworkoutsideIDPcamps. Mostinstitutionstasked Women IDPstendtobethemainoneshandlingconcernsrelatinglandbecause prioritize supportforwomenandproactivelyaddressgender inequities. institutions. Interventions to supportIDPsclaimtheir landoforiginrightsshould substantially increasing the percentage of women interlocutors in land-related ability ofwomenIDPstoachievelandtenuresecuritycouldbestrengthenedby that womenparalegalsaremorelikelytosupportwomen’slandinterests.The registration casescomparedwithonly1percentofmenparalegals,suggesting research foundthat22percentofwomenparalegalswereinvolvedinjoint were formenonly,16percentwomenand4jointtitles.Thesame register herlandintheirownname: detailed herchallengesafteraformervillageleaderhelpedsomebodyelseto vulnerabilities createdbyadeterioratinghumanitariancontext. not sharethesameownershipoverlandorpropertyasmen,exacerbatingexisting Regressive attitudestowardslandownershiportitlingoftenmeanthatwomendo income forallpeople,andparticularlywomeninthecaseofwidowhoodordivorce. economic opportunities are comparatively weaker. Land isa substantial meansof loss and crisis, which again impact women disproportionately because often their scope ofchoices.Ithelpstomitigatevulnerabilitywhendealingwitheconomic in turnincreasesparticipationhouseholddecisionmakingandexpandstheir For women,accesstolandiscriticalinfacilitatingeconomicempowerment,which The impactoflosslandonwomen Research byNGOnetworkNamati man who took my land acivil is servant, educated and rich. Iam not understand the law. Ido not have anyone like relatives who I because he thinks people with power can do whatever they want. can count on or support me. Thatis why they are oppressing me. not educated nor rich. Iam awidow. they So oppressed me. Ido committed by people with power. The administrator … did this The villageformer leader was involvedwith him to register the land. Iam facing many challenges to solve this because it was People who know about the law can violate and abuse it. The 38 foundthat80percentoffarmlandregistrations 37 Oneinterviewee 23 Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar

------42 Theprinci 43

44 They also highlight an obligation on the part of the the of part the on obligation an highlight also They 40 The principles recognize the right to freedom of move of to freedom the right recognize principles The 41 outline the rights of refugees and displaced persons to recover hous recover to persons displaced and refugees of rights the outline 39 ples also caution against forcible return to or resettlement in any place where IDPs’ lives, safety, safety, lives, IDPs’ where place any in resettlement or to return forcible against caution also ples risk. at be would health or liberty of Victims for Reparation and a Remedy to Right the on Guidelines Basic and Principles Interna of Serious and Law Rights Violations Human International of Violations Gross tional Humanitarian Law prop and vis-à-visresidence including restitution, to the right recognize Principles Basic The to the victim restore possible, whenever should, ‘restitution that stipulate clearly They erty. serious or law rights human international of violations gross the before situation original the as appropriate: includes, Restitution occurred. law humanitarian international of violations to return citizenship, and life family identity, rights, human of enjoyment liberty, of restoration property.’ of return and employment, of restoration residence, of place one’s They provide a framework of assurance whereby people who are displaced can maintain their their maintain can displaced are who people whereby of assurance a framework provide They HLP rights. GuidingThe PrinciplesInternal on Displacement and humanitarian of principles reiterate Displacement Internal on Principles Guiding The have states principles these under Notably, IDPs. of rights the protect that law rights human a have who others and minorities of displacement the against protect to obligation a positive that state principles the this, to Further lands’. their to attachment and on dependency ‘special protected be should persons displaced internally by behind left possessions and ‘property the use’. or occupation appropriation, illegal and arbitrary and destruction against ment and the right to choose one’s residence, and firmly prohibit arbitrary displacement. arbitrary prohibit firmly and residence, one’s choose to right the and ment ing, land and/or property (HLP) that they owned or held other rights over at the time of their their of time the at over rights other held or owned they (HLP) that property and/or land ing, concrete with coupled be to needs displacement that stipulate principles These displacement. to able be to people displaced for is central restitution that and redress, and remedy of forms ob an is property and housing of loss the that highlight They rights. fundamental their claim repatriation. and return voluntary to stacle any for compensation and of restoration both to right the recognize principles the Crucially, of. deprived unlawfully are IDPs HLP that IDP land rights are well covered in international standards and principles and standards international in covered well are rights land IDP United Nations Principles on Housing and Property Restitution for Refugees Dis Property for and and Restitution Housing Principles on Nations United Principles) (Pinheiro Persons placed Principles Pinheiro The state to prioritize the right to restitution as a remedy for displacement and recognize restitu recognize and displacement for as a remedy restitution to right the prioritize to state itself. of and in right as a distinct tion IDPs lack access to information and to information lack access IDPs justice mechanisms justice and information land-related to access of lack distinct a have they say IDPs in camps, and partly because is partly because of their isolation mechanisms. This the VFV and Farmland occurred in 2011, while in Kachin the majority of displacement have limited exposure that they In camps, IDPs reported enacted in 2012. laws were information legal relevant to access is difficult and it the land laws details of to the arise, IDPs indicated authorities. When disputes or complaints and engage local access the right people or not know who to turn to, they cannot that they often do their land rights. do not have the resources to assert

Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar 24 • • • term: short the In To theGovernment ofMyanmar Recommendations

‘natural disaster’underMyanmarlaw. displacement inlightoftheirexceptionalcircumstances, whichqualifyasa Certificates ofComplaiance (ECCs)bytheMinistryofNaturalResources would includenotonlyVFV landpermitsbutalsotheissuingofEnvironmental Union-level bodies – for instance,inrelation to VFV landallocations. This Land Department,townshipofficialsandvillage administrators, aswell confusion withregardtothetreatmentofIDPland rightsisclarifiedwiththe to businessespreventnewacquisitionsof IDP land,whileanylegal should introduceatemporarypauseongranting new concessionsinK In thecaseofcommerciallandacquisitions, GovernmentofMyanmar that Exceptions torulesonleavinglandfallowneed be clarifiedtoreassureIDPs their landpriortotheenactmentof2012laws. a validlandrightsclaim(e.g.taxreceipts,testimony,etc.)forthosewholeft It shouldreduceconfusionandconcernsamongIDPsaboutwhatconstitutes relevant officials, including township, village tract and village administrators. international standards.Thiscouldbeachievedwithaninstructiontoall of origin,inaccordancewithexistinglaws,guidedbytheNLUPandrelevant The Government their land restitution rights are not extinguished during their period of of Myanmar should clarify the status of IDPs’ rights to their land achin 25 Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar

47 should be implemented as soon as possible. should be implemented 45 achin State must be urgently reviewed, and revised if needed, be urgently reviewed, and revised achin State must policies or eventual agreements emerging from the national 46 National Natural Disaster Management Committee should, in accordance in should, Committee Management Disaster Natural National The government should ensure that IDPs are able to participate in key peace The government should ensure that IDPs are able to participate in and development processes, particularly for women and youth. The acknowledge and respect customary practices, be conflict-sensitive and be acknowledge and respect customary practices, be conflict-sensitive to inclusive of women. Restitution also needs to ensure robust approaches IDP ensuring justice in the case of secondary occupants who have acquired land since 2011. with its existing mandate, support and facilitate rehabilitation and with its existing mandate, support and facilitate rehabilitation land and reconstruction activities and ensure that IDPs can return to their have health, education and livelihood opportunities. political dialogue or other peace agreements should ensure that IDPs can IDPs ensure that should agreements peace other or dialogue political a place of return voluntarily to their land of origin or be resettled elsewhere in their choice, regardless of length of displacement. in the Any post-conflict land restitution mechanisms or processes agreed retain all future should ensure that IDPs, and others affected by conflict, their previous rights and/or entitlements, guarantee the right to restitution, and Environmental Conservation (MONREC) and investment permits by the permits by the and investment (MONREC) Conservation and Environmental (DICA). In this respect, and Company Administration Department of Investment a ‘land scrutiny State Chief Minister to establish of the Kachin the commitment redistributed land and how to establish the amount of commission in order to IDPs’ much of it belongs Any laws, The new national land law, as stipulated by the NLUP, should align with the The new national land law, as stipulated Principles on Internal Displacement, the standards set out in the UN Guiding standards relating to IDPs. Other Pinheiro Principles and other international with these principles, in particular the national laws should also be aligned the Farmland Law and the VFV Law. Natural Disaster Management Law, Armed forces should, where possible, lift access restrictions, both formal and Armed forces should, where possible, guarantee safe passage for IDPs wishing arbitrary, to IDPs’ land of origin, and to access their land of origin. Land acquisition and registration procedures under the VFV Law and the and registration procedures under Land acquisition Farmland Law in K of IDPs are recognized and to to ensure that the exceptional circumstances and access restrictions, which prevent take account of their safety concerns and transfer of their land. This includes them from having a say in the use period for objections, which is a practical amendments to the 30-day notice with tasked bodies Government to. adhere to IDPs most for impossibility guidelines to fully and accurately scrutinize inspecting land should introduce of context conflict the to sensitive is that way a in otherwise or vacancy its Kachin. The Government of Myanmar should enact legislation on restitution that of Myanmar should enact legislation The Government bodies to effectively mechanisms of redress by relevant introduces clear of IDP land by third claims of unfair or unlawful acquisition register and process with effective remedies. displaced persons (and refugees) parties, and provide

• • • • In the medium to long• term: • • •

Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar 26 • • organizations and donors • international To • Organisation/Army Independence • Kachin the To • ey barrierstoreturn,includingthepresenceofarmedactors,landminesand • stakeholders all To • Kachin in investing companies multinational and • domestic To

robust landrestitutionprocessaspartofacomprehensivepeaceagreement. land disputecases. by directlysupportingwomenparalegalstorepresentwomen’sinterestsin ensuring thatlawsareavailableinlocallanguages. should includebothdirectlegalaidandotherawarenessactivities individuals and communities affected by the loss of land due to conflict. This Support housing, landandpropertyrights. Finalize alandpolicythatprovidesforexplicitprotectionIDPs’rightto to theirlandoforigin. possible, Ensure thatallaccessrestrictionstoIDPs’landoforiginareliftedwhere restitution processinthefuture. land hasbeenacquired,ortobuildcasesinanticipation ofafullyfledgedland and documenttheirlandrightsclaims,eithertoseekimmediateremedywhere understanding theirrightsinordertoallowthemmakeinformeddecisions, Authorities, NGOsanddevelopmentpartnersshouldsupportIDPsin necessitating acessationofarmedconflictandnegotiatedpeacesettlement. ongoing conflict,mustbecomprehensivelyaddressedbyallstakeholders, K principles onbusinessandhumanrights. that theseareprocessedsensitivelyandinaccordancewithinternational In theeventthatgrievancesareraisedbyIDPsinrelationtoinvestments,ensure property rightsofIDPsinK carrying outandactinguponanassessmentofanypotentiallossland a conflict-sensitiveapproachtonewandexistinginvestmentsthatincludes diligence, whichareamustanywhereinMyanmar,companiesshouldadopt In additiontocomprehensivelegalandenvironmentalcompliancedue Stand readytosupportallstakeholdersinK Special effort shouldbepaidtoencouraging women’s empowerment,including actors providing legal services and awarenesson land issues to and that safe passage of access is granted to IDPs wishing to return achin. achin todevelopandimplementa 27 Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar DPP, Endline Report (pending publication). DPP (2016). Baseline Report, p.27. Most participants said that their reason for return was ‘better economic DPP (2016). Baseline Report, p.27. Most participants said that their reason for return was Joint Strategy Team joint positioning paper on land restitution (undated). Joint Strategy Team Ibid. The term internally displaced person (IDP) is widely used to refer to people displaced by conflict, but people refer to used to (IDP) is widely person The term internally displaced According to the DPP’s baseline report, 95 percent of respondents want to return to their land of origin. According to the DPP’s baseline report, 95 This briefing paper is based on original research carried out by Naushawng Development Institute, Nyein by Naushawng Development Institute, research carried out original This briefing paper is based on KMSS and UNDP (2015). Multi-Sector Early Recovery Assessment of Kachin and Northern , p.25. State, Shan Northern and Kachin of Assessment Recovery Early Multi-Sector (2015). UNDP and KMSS Relief Action Network for IDP and Refugee (RANIR) (2015). Displaced Villages Profiling; and K. Woods (2016). (2015). Displaced Villages Profiling; and K. Woods Relief Action Network for IDP and Refugee (RANIR) Joint Strategy Team (JST) (2015). Assessment on Internally Displaced Persons’ Needs and Perspectives, (JST) (2015). Assessment Joint Strategy Team The Joint Strategy Team (JST) is a group of committed, professional local NGOs providing comprehensive, comprehensive, providing NGOs local professional committed, of group a is (JST) Team Strategy Joint The Htun Khaing (2018). Kachin IDPs fear land grabs in the villages they once called home. Frontier Myanmar. IDPs fear land grabs in the villages they once Htun Khaing (2018). Kachin Brookings Institution (2010). IASC Framework on Durable Solutions for Internally Displaced Persons. https:// Brookings Institution (2010). IASC Framework on Durable Solutions for Internally Displaced opportunities’ or ‘hope for the future’. www.brookings.edu/wp-content/uploads/2016/06/04_durable_solutions.pdf Foundation and Oxfam, involving extensive discussions with IDPs, in which concern over losing their land Foundation and Oxfam, involving extensive research team then worked together to design the research of origin was commonly raised. IDPs and the visit scoping This began with extensive interviews and a the data. collect and analyse approach and to of land established as a major issue, the research process to develop preliminary findings. With loss capital) and Bhamo and the in the cities of Myitkyina (Kachin’s expanded to approximately 20 case studies Puta-O. These were then narrowed down to 10 broadly Momauk and townships of Mogaung, Waingmaw, team was able to gain adequate access to reasonably representative case studies where the research multiple field visits, obtaining documentation and interviews assess the legitimacy of claims. This involved outlined in this with IDPs, actors involved in appropriating land and other related actors. The key findings consistent with paper are based on extensive evidence from these 10 in-depth case studies, but are also with the preliminary findings from the 20 case studies. Results are also consistent and complementary (2016). K. Woods other published perception surveys (see RANIR (2015). Displaced Villages Profiling; and IDP Land Rights: Armed Conflict, Displacement and Return). Kachin p.25. http://fscluster.org/sites/default/files/documents/assessment_early_recovery_kachin-n.shan_ern_ dec2015.pdf 12 13 10 11 8 9 7 6 https://frontiermyanmar.net/en/kachin-idps-fear-land-grabs-in-the-villages-they-once-called-home; https://www.irrawaddy.com/ Irrawaddy. The IDP Land. Use of Vacant KIA Objects to Nyein (2017). Nyein return of Lin Aung (2017). KBC tries to arrange Tun news/burma/kia-objects-use-vacant-idp-lands.html; State. Eleven Myanmar. http://www.elevenmyanmar.com/local/12327 IDPs to 27 Villages in Kachin 4 5 members of the DPP consortium share the view that the term is problematic, and feel that terminology used share the view that the term is problematic, members of the DPP consortium by conflict. Since this discussion is the dignity and worth of people displaced should reflect and respect paper will continue to use it for purposes is wide use of the abbreviation IDP, this ongoing, and since there to address this important issue in future that more discussion needs to take place of brevity, while noting publications. 2 3 NOTES 1 Durable Peace Programme (DPP) (2016). Baseline Report, p.27. https://myanmar.oxfam.org/sites/myanmar. Durable Peace Programme (DPP) (2016). Baseline oxfam.org/files/file_attachments/Durable%20Peace%20Programme%20Baseline%20Report.pdf strategic and principled humanitarian assistance to people affected by armed conflict in Kachin and Northern Kachin strategic and principled humanitarian assistance to people affected by armed conflict in assistance Shan States. The JST has a long history of strategizing and delivering principled humanitarian the international humanitarian system. exposed to in complex contexts, and it is highly knowledgeable and and satisfy their The JST’s most significant achievement is its humanitarian work to protect IDPs’ rights in both in Kachin basic needs over the past five years. It has been able to reach over 85 percent of IDPs areas. both in access regular has and total) in IDPs 102,000 (about areas KIO/A-controlled and government- Kachin IDP Land Rights: Armed Conflict, Displacement and Return. Kachin

Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar 28 country-profile/burma restitution-and-the-right-to-land-for-idps-and; andUSAID.CountryProfile;Burma.https://land-links.org/ and Refugees in Myanmar.https://www.tni.org/en/publication/re-asserting-control-voluntary-return- See also(TNI)(2017).Re-AssertingControl:Voluntary Return,Restitution andtheRighttoLandforIDPs uploads/2017/02/Myanmar-SEZ-assessment-Publications-Reports-Thematic-reports-2017-ENG.pdf. Economic ZonesinMyanmarandtheStateDutytoProtectHumanRights.https://www.icj.org/wp-content/ files/documents/Academic_article_Ethnic_Conflict_and_Land_Rights_Tom_Kramer_2015.pdf org/resources/pdfs/ConflictTerritorialAdministrationfullreportENG.pdf National LandUseCouncil).http://mylaff.org/document/view/4158 cultivation followedbyfallowperiods.Forfurtherdiscussion,seesection3ofthispaper. no evidencewasfoundofanyusethisActinrelationtoIDPlandKachin. right ofeminentdomaintoacquireanyland(includingIDPland)thatisrequiredforpublicpurpose.However, practices andhumanrightsstandards.’ land use rights and housing rights shall be systematically provided in accordance with international best land confiscation,naturaldisastersorothercauses,thatdesiretoresettletheiroriginallands,adequate documents/Ref_Doc_Natural_Disaster_Management_Law_31Jul2013.pdf 18 17 16 15 14 32 31 30 29 28 27 26 25 24 23 22 21 20 19 http://www.moi.gov.mm/moi:eng/?q=announcement/30/05/2017/id-10756 hluttaw-law-no-32-2013-law-of-protection-of-the-farmer-rights-and.html until-now/union-solidarity-and-development-party-laws-2012-2016/myanmar-laws-2013/pyidaungsu- warning againstland-grabbing.http://www.elevenmyanmar.com/local/12603 areas.html https://www.irrawaddy.com/features/ex-ministers-armed-groups-operate-farms-kachins-conflict- www.tni.org/files/publication-downloads/tni_primer-burma-digitaal.pdf in theBorderworldsofBurma;Transnational Institute(TNI)(2015).TheMeaningofLandinMyanmar.https:// rivers toformtheAyeyewadyRiver. https://frontiermyanmar.net/en/land-committees-an-opportunity-for-inclusion http://www.burmalibrary.org/docs14/VFVM_Rules-en.pdf faolex.fao.org/docs/pdf/mya152783.pdf Nyein(2017).KIAObjectstoUseofVacant IDPLands,op.cit.;ElevenMyanmar(2017).KIOreleasesa T. Kramer(2015).EthnicConflictandLandsRightsinMyanmar.http://themimu.info/sites/themimu.info/ K.Joliffe(2015).EthnicArmedConflictandTerritorial AdministrationinMyanmar.https://asiafoundation. GovernmentNotification15/2018(OfficialnotificationfromtheVicePresident’sOfficeestablishing Suchjustificationmightalsoincludetheuseoflandfor‘shiftingcultivation’,whichinvolvesperiods Principle64:‘Forethnicnationalswholosttheirlandresourceswheretheylivedorworkedduetocivilwar, NaturalDisasterManagementLaw(2013).http://www.themimu.info/sites/themimu.info/files/ Ibid.,pp.3-4. http://www.myanmar-law-library.org/law-library/laws-and-regulations/laws/myanmar-laws-1988- Foracomprehensiveoverviewoflandlaws,seeInternationalCommissionJurists(ICJ)(2017).Special Ibid. MoeMyint(2017).Ex-Ministers,ArmedGroupsOperateFarmsinKachin’s ConflictAreas.TheIrrawaddy. Fora more in-depthanalysis, see M.Sadan(2013).BeingandBecomingKachin: Histories Beyond theState Located42kmnorthofMyitkyina,theKachin Statecapital,thisistheconfluenceofMaikhaandMalikha C.PierceandYe YintHtun(2017).Landcommittees:Anopportunityforinclusion.FrontierMyanmar. Apossibleexceptiontothisisthe1894LandAcquisitionAct,whichallowsgovernmentexerciseits TheRepublicoftheUnionMyanmar (2012).Vacant, FallowandVirginLandsManagementRules,p.3. Government ofMyanmar,MinistryInformation(2017).37points signedaspartofPyidaungsuAccord. 29 Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar Trócaire and Oxfam (2017). Life on Hold: Experiences of women displaced by conflict in Kachin State, by conflict in Kachin Life on Hold: Experiences of women displaced and Oxfam (2017). Trócaire Ibid., p.8.. Principle 9.1: ‘Everyone has the right to freedom of movement and the right to choose his or her Ibid., p.8.. Principle 9.1: ‘Everyone has the right Ibid., Principle 2.2: ‘States shall demonstrably prioritize the right to restitution as the preferred remedy for right to restitution as shall demonstrably prioritize the 2.2: ‘States Ibid., Principle Boutry, M., Allaverdian, C., Mellac, M., Huard, S., San Thein, Tin Myo Win, Khin Pyae Sone. (2017). Land tenure Sone. (2017). Land Tin Myo Win, Khin Pyae M., Huard, S., San Thein, Allaverdian, C., Mellac, Boutry, M., The Final Report of the Special Rapporteur on Housing and Property Restitution in the Context of the The Final Report of the Special Rapporteur http://www.unhcr.org/protection/idps/43ce1cff2/guiding-principles-internal-displacement.html http://www.unhcr.org/protection/idps/43ce1cff2/guiding-principles-internal-displacement.html UN Economic and Social Council C (2005). ‘Pinheiro Principles’, p.6. Principle 2.1: ‘All refugees and UN Economic and Social Council C (2005). A “Form 7” is a land use certificate or title for farm land, issued under the 2012 Farmland Law. certificate or title for farm land, issued under A “Form 7” is a land use 2012 VFV Law 16(b). For instance, see Public International Law & Policy Group (PILPG) (2017). Analaysis of Burma’s Farmland International Law & Policy Group (PILPG) For instance, see Public Namati (2016). Gendered Aspects of Land Rights in Myanmar: Evidence from Paralegal Casework. https:// Namati (2016). Gendered Aspects of Land Rights Including, but not limited to a land restitution law. and land, and The JST interprets the right to restitution to be the ‘right to recover their properties, housing Moe Myint (2017). Ex-Ministers, Armed Groups Operate Farms in Kachin’s Conflict Areas. The Irrawaddy. Moe Myint (2017). Ex-Ministers, Armed Groups Operate Farms in Kachin’s Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Myanmar. https://www.trocaire.org/sites/default/files/resources/policy/life-on-hold-trocaire- oxfam-2017.pdf in rural lowland Myanmar: From historical perspectives to contemporary realities in the Dry zone and the From historical perspectives to contemporary in rural lowland Myanmar: . https://themimu.info/sites/themimu.info/ Myanmar research series. Gret: Yangon. Delta. Of lives of land files/documents/Report_Land_Tenure_in_Rural_Lowerland_Myanmar_GRET_2017.pdf residence. No one shall be arbitrarily or unlawfully forced to remain within a certain territory, area or region. residence. No one shall be arbitrarily or unlawfully forced to remain within a certain territory, or region.’ Similarly, no one shall be arbitrarily or unlawfully forced to leave a certain territory, area displacement and as a key element of restorative justice. The right to restitution exists as a distinct right, displacement and as a key element of restorative nor non-return of refugees and displaced persons entitled to and is prejudiced neither by the actual return housing, land and property restitution.’ displaced persons have the right to have restored to them any housing, land and/or property of which they displaced persons have the right to have restored be compensated for any housing, land and/or property that is were arbitrarily or unlawfully deprived, or to by an independent, impartial tribunal.’ http://www.unhcr. factually impossible to restore as determined org/protection/idps/50f94d849/principles-housing-property-restitution-refugees-displaced-persons- pinheiro.html Law. http://www.mylaff.org/document/view/4177 46 47 (Joint Strategy to request compensation for those who lost family members, were injured or lost properties’ paper on land restitution (undated)). joint positioning Team 45 https://www.irrawaddy.com/features/ex-ministers-armed-groups-operate-farms-kachins-conflict- areas.html 42 43 44 Law (adopted and of International Human Rights Law and Serious Violations of International Humanitarian http://www.ohchr. proclaimed by General Assembly resolution 60/147 of 16 December 2005), paragraph 19. org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx 41 40 38 39 35 36 37 33 34 Return of Refugees and Internally Displaced Persons (E/CN.4/Sub.2/2005/17 and E/CN.4/Sub.2/2005/17/ Return of Refugees and Internally Displaced in relation to Myanmar, see Norwegian Refugee Council Add.1). For an overview of the Pinheiro Principles and Land Housing, Claiming and Understanding to Guide Introductory An (2016). Solutions Displacement and Restitution in Myanmar. Property Restitution Rights in Myanmar, and namati.org/wp-content/uploads/2016/03/Namati-Gender-policy-brief-FINAL-1.pdf

Displaced and Dispossessed: Conflict-affected communities and their land of origin in Kachin State, Myanmar 30

© Kachin Baptist Convention, Metta Development Foundation, Naushawng Development Institute, Nyein Foundation, Oxfam International and Trócaire, May 2018

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Published by Oxfam GB for Kachin Baptist Convention, Metta Development Foundation, Naushawng Development Institute, Nyein Foundation, Oxfam International and Trócaire, under ISBN 978-1- 78748-243-2 in May 2018. Oxfam GB, Oxfam House, John Smith Drive, Cowley, Oxford, OX4 2JY, UK.