Unruh, J D 2016 Mass Claims in Land and Property Following the Arab stability Spring: Lessons from Yemen. Stability: International Journal of Security & Development, 5(1): 6, pp. 1–19, DOI: http://dx.doi.org/10.5334/sta.444

RESEARCH ARTICLE Mass Claims in Land and Property Following the Arab Spring: Lessons from Yemen Jon D. Unruh

The Arab Spring uprisings have released a flood of land and property conflicts, brought about by decades of autocratic rule. Expropriations, corruption, poor per- formance of the rule of law, patronage and sectarian discrimination built up a wide variety of land and property transgressions over approximately 30 years. The result has been the creation of longstanding, acute grievances among large components of national populations who now seek to act on them. If new, tran- sitional or reforming governments and their international partners fail to effec- tively attend to such grievances, the populations concerned may act on them in ways that detract from stability. This article critiques the case of Yemen, whose transitional government, with international support, initiated a land and prop- erty mass claims process in the South in order to address a primary grievance of the southern population as part of the National Dialogue transition. A series of techniques are described that would greatly improve the mass claims process once it inevitably recommences after the Houthi conflict comes to an end. These improvements would attach more importance to socio-political realities and how to quickly attend to them, as opposed to an over-reliance on specific legalities. Such an approach could have wider utility among Arab Spring states seeking to address similar land and property grievances.

Introduction form a common narrative that prom- Land and property rights are one of the ises now to reshape new constitu- most important issues that has emerged tions, legislation, policy formulation, in all of the Arab Spring states, including social mobilization and transitional- those hoping to avoid violent uprisings. justice processes for years to come The long history of opposition to certain (Schechla 2012). governments in the Middle East and North Africa reflect a process of confiscations, One of the primary trends across Arab poor performance of the rule of law regard- Spring states following the uprisings is the ing land rights, and the important role that high number of land and property claims by lands and properties played in the patron- those who were dispossessed over decades of age systems of governance. In aggregate, patronage-based autocratic rule (e.g. UNHCR such acute problems regarding land and 2012; Schechla 2012; Rihan and Nasr 2001; property now Unruh 2016). Addressing such claims in a timely and effective manner will be critical McGill University, Canada to stability, governance, and economic and [email protected] livelihood recovery. Art. 6, page 2 of 19 Unruh: Mass Claims in Land and Property Following the Arab Spring

This analysis looks at Yemen and the land by the Saleh regime will be a priority. In and property rights problems that emerged Yemen’s case, addressing longstanding and in the South as a set of deep-seated grievances acute grievances surrounding land and against the central government and the property is more about creating the percep- North. Prior to the Houthi insurgency, the tion of social justice and less about legal government, the Gulf Cooperation Council propriety. Eventually, southern Yemen will and the UN had begun a mass claims need robust techniques to address its land program for land and property restitution and property restitution difficulties. These in the South to address one of the primary techniques will be useful in order to quickly grievances of the southern population. and effectively determine which properties The attention given to land and property are to be returned, and to whom; who is restitution in the South was considered to be given alternative lands or properties, critical to the building of stability and and where; and who is to be compensated, continuing unity of northern and southern by how much and in what form. If such a Yemen (Republican decree no. (2) 2013; process is not seen as rapid, capable and Lackner 2012). While currently suspended, fair by the general public, the subsequent the program will inevitably recommence public disillusionment could become prob- once relative stability returns and the South lematic for the government. For example, seeks to move forward – with one important Al-Qaeda in the Arabian Peninsula (AQAP) difference. Once the Houthi war ends, the is quite adept at attaching itself to soci- situation surrounding the restitution of etal grievances in southern Yemen in order lands and properties will be much more to grow its own constituency. Instead, if a complicated, acute, urgent and violent, post-Houthi government were able to ade- given that blood has once again been shed quately address such grievances, support between southerners and northerners. The for AQAP, or similar groups, could decrease Houthis (a group from northern Yemen) are (Zimmerman 2015). allied with former president Saleh’s forces, This paper describes the author’s experi- and northerners are considered responsible ence in assisting the Yemeni government for the land and property confiscations and the UN in creating and implement- in the South which have occurred since ing this mass claims program. Subsequent the unification of the country in 1990 to to the section on methodology, the paper the present. In addition, the loss of life, explores the background to the southern dislocation, social upheaval and property Yemen land and property difficulties during destruction wrought by the Houthi conflict the Saleh government, and then moves on in the South (Economist 2015) will produce to delimit the land issues in the post-Saleh 1) a new tangle of claims that will mesh era after Yemen’s Arab Spring, which began with those that the mass claims program in 2011. The paper then critiques Yemen’s initially intended to serve; 2) a large increase mass claims program by detailing the types in the destruction and loss of documentary of claims, their complications and how they evidence for claims; and 3) a pronounced were dealt with by the Land Commission decrease in the patience of the post-conflict prior to the Houthi insurgency. This is fol- population with any perceived slowness on lowed by a description of improved mass the part of the mass claims process to deliver claims techniques more adapted to the timely results. socio-political reality of southern Yemen, Regardless of whether or not the South post-conflict. These techniques aim to remains unified with the North, the return quickly and effectively address the destabi- of lands and properties confiscated and lizing grievances brought about by decades used in the patronage system operated of conflict, expropriation and patronage. Unruh: Mass Claims in Land and Property Following the Arab Spring Art. 6, page 3 of 19

Methods examination of the Southern Yemen Land Data collection was conducted in southern Commission’s documentation, including Yemen in 2013 and 2014 while the author progress reports, bylaws, decrees, terms of worked with the Southern Yemen Land reference, recommendations, as well as the Commission. This included individual and development of the claims database. group interviews and working relationships with a total of 580 people. Legal, admin- Land Rights in Southern Yemen: istrative and technical personnel from the Background Southern Yemen Land Commission, along The Saleh Era with claimants from different governorates, Land rights played a primary role in the socio-economic strata, ages, occupations, patronage system of the Saleh government and tribal affiliations are included in this prior to its removal in 2012, during Yemen’s number. Additionally, individuals holding Arab Spring. Land and property confiscations customary leadership positions of sultan, and reallocation were used to punish some sheik and elder from different governorates groups and individuals and reward others. were interviewed. Discussions were also held This played a large part in propping up the with personnel from The Land Authority, government for more than three decades The Military Survey Office, The Aden Free (Hales 2010). In the South, the first land Zone, housing and agricultural societies, disputes arose in 1967 when the socialist the University of Aden, the Investment regime of then South Yemen, abolished sul- Authority, a university woman’s associa- tanates, expelled tribal sultans and sheiks, tion, the office of the Aden Governorate, the and claimed their land for the state (Day Aden Chamber of Commerce, the Ministry 2012; World Bank 2009). Many sultans and of Endowment (waqf), the Ministry of Public sheiks fled to Saudi Arabia during this time Works, the Ministry of Legal Affairs, the (Gaston 2015), prompting outsiders to the General Authority of Land Surveying and former sultanates to rent the land from the Urban Planning, the Ministry for Interior, state, as tenants (Jerret 2014; Day 2012). and the Ministry for Defense. Discussions When Yemen and South Yemen unified were held as well with activists, journal- in 1990, President Saleh encouraged the ists, representatives of the southern sepa- sultans and associated sheiks to return, ratist movement Al-Hirak, and various and gave them their land back (World Bank NGOs. United Nations personnel from the 2009). In gratitude, the sultans gave the International Organization for Migration, president approximately 20 per cent of the the UN Development Programme, the UN sultanate lands, apparently because they Department of Political Affairs, and UN secu- knew he would take it anyway (Jerret 2014). rity were also consulted. Prior to the sultans’ return, however, many Work in Yemen was complemented by a tenants who already occupied the land review of the academic, legal, donor, govern- found themselves in a position to sell; in ment and NGO literature relevant to contem- many cases the tenants were approached porary and historical aspects of Yemen’s land by outsiders who encouraged such sales. and property rights, conflicts, dislocation Simultaneously, former sultanate lands were and migration, tribes, general society, and seized by powerful political and military economy. Mass claims restitution processes interests (Brehony 2011; Jerret 2014). When conducted in other countries were also the sultans returned in 1990, they demanded reviewed. These included restitution pro- their land back from those it had been sold cesses in European, Middle Eastern, African, to and seized by, and many of these cases North American, Latin American and Asian ended up in court. However, the courts in countries. Particular focus was given to the Yemen are plagued by corruption and were Art. 6, page 4 of 19 Unruh: Mass Claims in Land and Property Following the Arab Spring unable to process the high volume of cases, those they desired to be part of their own and thus were unable to resolve them (van patronage system, often relieving the origi- Veen 2014). This situation encourages the nal occupants of their land and creating sultans, sheiks and their kin to approach numerous confusing land problems that to AQAP to resolve these conflicts. This is facili- this day are unresolved (Jerret 2014; USAID tated by the fact that a number of returning 2010). However, if a sheik fell out of favour sheiks fought with bin Laden in Afghanistan, with the regime, the latter would reclaim and so already had important connections the land, ignoring the fact that the land had to Al-Qaeda; in fact, one of the return- already been divided up and given to others. ing sultans actually helped to found AQAP The confusion, ambiguity and disputes over (Gaston 2015; Johnsen 2012). Al-Qaeda in sultanate land and the actions of affiliated the Arabian Peninsula explicitly supports the sheiks was a primary tool used by northern- southern secessionist movement Al-Hirak, ers to seize, purchase and swindle southern and is currently actively engaged in trying to lands from 1990 to the present, and particu- win over the local population in the south- larly after the 1994 civil war (Hill et al 2013; ern governorates (Zimmerman 2015; Day Jerret 2014). 2012). At the time of publication, there are Subsequent to what is now widely recog- indications that AQAP is moving in behind nized as a hasty unification of North and Saudi-led coalition forces in an attempt to South Yemen in 1990, discontent in the control areas liberated from the Houthis South over unequal relations with the North (Zimmerman 2015). led to a brief war in 1994 in which the North An additional complication regarding the prevailed. One of the primary reasons for sultanates in the South was the appoint- the war was the Saleh regime’s drive to con- ment of numerous sheiks by the Saleh gov- trol land resources in the South (Day 2012; ernment, and the land allocation function Brehony 2011). of the sheiks. Prior to the departure of the Northern Yemen’s victory led to two sce- sheiks, at the onset of the socialist era, they narios which significantly aggrieved the had no land allocation role within the sul- southern population. These were the dis- tanates, and inherited their positions based missal of southerners from the country’s on lineage. However, in order to engage in military and civil services, and a two-decade divisive patronage politics, the Saleh regime surge of land expropriations in the South by gave the sheiks a land allocation role, and northern political, economic and military also increased their number dramatically, elites and their associates (Salisbury 2013; appointing sheiks that were beholden to Hill et al 2013; Al-Zwaini 2012). While exam- the Saleh regime (USAID 2010; al-Fadhli ining this period in Yemen’s history, Day 2012). For example, in 1958 the Fadhli (2012:157) notes that, ‘[i]ntergroup resource sultanate had thirteen sheikhs. Today, the competition is one of the main factors that sultanate has about 2800, as a result of hardens group identities in opposition to Saleh’s appointments (al-Fadhli 2012). The outsiders’. Besides this, competition over land disputes that were created by the many scarce resources was greatly and purpose- appointed sheiks thus became numerous fully exacerbated by the Saleh regime. Much and complicated. In the patronage system of the instability and radicalism in the coun- of the Saleh era, the government would pro- try today can be traced back to the dynamics vide certain sheiks with control over large surrounding the 1990 unification (e.g., Day amounts of land, which were then divided 2012; Hill et al 2013). among others with whom the sheiks The drive to acquire lands and properties were connected, to retain favour with the in the South by northerners after the 1994 regime. Thus, the sheiks allocated lands to war took advantage of three facilitating Unruh: Mass Claims in Land and Property Following the Arab Spring Art. 6, page 5 of 19 factors. First, because local inhabitants in be between 50 and 85 per cent of all cases the South tended to occupy small proper- (Dabbas and Burns 2011; Hales 2010; YAVA ties in crowded, urbanized areas before uni- 2010; World Bank 2000). The southern Yemen fication, large tracts of state land were left land confiscations alone are reported to in a seemingly unoccupied and unclaimed amount to an area equal to the neighboring status, which facilitated their takeover by country of Bahrain; and Yemen’s Parliament northerners (Hill et al 2013). Second, not produced a 2010 report that warned unlaw- only did southern lands comprise a signifi- ful land acquisition would spawn new unrest cant part of the patronage system of presi- in Yemen and threaten social peace for years dent Saleh and his associates, but these (Schechla 2012). Corruption in Yemen, espe- lands were also used to absorb the reper- cially in the governorates of Hudaida and cussions of land grabbing in the North. As a Aden, were a main factor in the outbreak of result, southern lands were frequently used the Arab Spring revolution and the overthrow as compensation for northern victims of of President Saleh in 2011 (Brehony 2011). land grabbing (Hill et al 2013). Third, south- ern lands were seen as a form of war booty Contemporary Southern Yemen by northerners who ignored, misused and Land-related conflicts, grievances, confu- ran roughshod over land and property laws, sion and violence are a primary compo- customs, forms of proof, and long-standing nent of the current instability in Yemen claims and occupation of lands. With south- (Zimmerman 2015; Hales 2010; al-Fadhli erners expelled from the civil service and 2012). The number of people killed over the military after the 1994 war, the ability land and water disputes per year rivals those of political entities and legal enforcement killed in the Houthi conflict, the Southern to counter this trend declined significantly. secession conflict, and Al-Qaeda activities As southern lands were increasingly appro- (Kambeck 2014; Hales 2010; al-Fadhli 2012). priated by northerners, some southern- While the Saleh regime is gone, the sheiks ers also engaged in land expropriation, he had installed continue in their land allo- believing they had more of a right to such cation role. These allocations are not coor- a process than northerners. Animosity dinated with local and governorate land grew between the groups, and in 2007 an offices, such that there is ongoing confu- element of the largely peaceful separatist sion about what land belongs to whom, who movement, Al-Hirak, became militarized claims what land, and by whom is it used. and today operates in a number of areas in Appointed sheiks who use their sultanate the South (Hill et al 2013; Salisbury 2013). affiliations to reallocate land into private Contributing to the overall problem is that holdings which are then sold, add particular the populations of the North and the South confusion and animosity to the situation. have opposite perceptions of the human These variable scenarios create competing – land relationship. The North has a large meanings of what has transpired on sultan- population, is geographically much smaller ate land and what these lands have or have than the South and is land scarce, particu- not become (privately held, lineage land, larly with regard to usable land. The South sultanate land, government land); as well as has a smaller population, but a much larger create competing narratives regarding what land area and is regarded as land abundant happened to who and when in land rights (Hill, et al 2013); although arable land in scenarios (Day 2012). proximity to water is scarce. Following the unrest of Yemen’s Arab As of 2011, the proportion of cases in Spring in 2011, and the Gulf Cooperation the Yemeni primary courts that concerned Council’s (GCC) transition initiative in land and water disputes was estimated to November of the same year, Yemen began Art. 6, page 6 of 19 Unruh: Mass Claims in Land and Property Following the Arab Spring what was initially intended to be a two-year the lands and properties in question actively transition, but which lasted longer (Lackner hindered the resolution of these cases using 2012). As part of the GCC’s National Dialogue political tools. Despite these difficulties, process, the Dialogue Preparation Committee within the first few months of its open- took substantive initiatives to address the ing in 2013, it was overwhelmed with over concerns of southerners. Of the 20 demands 90,000 claims. Claims intake then reopened this Committee submitted to President Hadi from the beginning of 2014 until March 20, in August 2012 covering the national transi- 2014, and the number of claims continued to tion, eleven of these were about ‘the south- increase dramatically. ern issue’, and included the restitution of, The Houthi incursion into southern or compensation for all land and property Yemen in mid 2015 disrupted the func- that was confiscated. A Presidential Decree tions of the Land Commission, along with then created, ‘The Commission to Consider all other state institutions, including those and Address Land Issues’ in January 2013 with whom the Land Commission needed and located it in the southern city of Aden to cooperate. The Houthis attempted to with the purpose, ‘to address issues related establish ‘revolutionary committees’ in all to land ... in the Southern Governorates in governorates under their control to moni- order to complete the National Dialogue and tor state institutions and ensure they per- National Reconciliation and as required by formed according to Houthi priorities. The the Public Interest’ (Republican decree no. 2 Houthi used force to control local popu- 2013, p 1). How to accomplish this in a way lations; local forces that resisted Houthi that quickly and effectively addressed over advances did so primarily to defend their two decades of accumulated grievances and lands (Zimmerman 2015). As the Houthi animosity regarding land and property rights rebellion pushed well beyond their tradi- then became the primary challenge. tional stronghold, the backlash among local Gravely concerned about the enduring tribes has garnered support for AQAP, par- grievances attached to land and property ticularly given the inability of the Yemeni confiscations in the South and their disrup- government to prevail against the Houthis tive effects on national reconciliation, the (Zimmerman 2015). The Houthis also faced GCC and a group of donors invested signifi- resistance forces linked to Yemen’s south- cantly in the Land Commission. However, the ern separatist movement Al-Hirak, and as a Land Commission needed to overcome sev- result Al-Hirak is now much more popular, eral problems. Firstly, it faced issues of legiti- militarized, and aggressive (Zimmerman macy because it followed three previous land 2015). At the time of writing the Houthi commissions since the 1994 war, each of insurgency appears to have been pushed which were perceived to have accomplished out of most of southern Yemen by a Saudi- very little (Novak 2010). Though the previous led military effort. commissions had different mandates and the current commission has international Categories and Complications backing and greater financial resources, the Claims categories claimants themselves made little distinction. This section describes the major cat- The Commission faced broad challenges egories of claims, as defined by the Land regarding lack of evidence,1 literacy and com- Commission, followed by a description munication on the part of claimants who of the primary complications affecting came from legally pluralistic backgrounds. these categories. It is important to reiter- In addition, there was no land registry and ate that these are categories of claims, not no effective deeds system or cadaster. Most categories of disputes. The types of par- importantly, those who illegally possessed ties currently in possession of the lands Unruh: Mass Claims in Land and Property Following the Arab Spring Art. 6, page 7 of 19 and properties in question, against whom decisions. A large number of claims stem claims have been lodged, are described from the government’s 2012 war with AQAP above in the section, ‘The Saleh Era’. While in the southern governorates east of Aden. the categories are useful in terms of initial Irrigation facilities, agricultural fields and organization, significant further categoriza- buildings, crops and livestock, boundary tion will be needed so as to effectively ren- markers, wells, and farming equipment der realistic and implementable decisions. were damaged or destroyed as AQAP moved The five major claimant categories comprise through the area pursued by government housing societies, investments, agricultural forces. In these situations there are con- land, buildings and facilities, and individual cerns of some claimants’ potential attach- properties. ments to AQAP, and if shelter given to them Housing societies in southern Yemen are was voluntary or not. those which are primarily attached to forms The buildings and facilities category of employment, either civil or military, and includes factories and other properties cur- occasionally to non-employee groupings. rently owned by corporations or the gov- This is a relatively large category, with 150 ernment. While initially confiscated by the housing societies in the Aden area alone. northern government, most of these have The housing societies of just the former since been privatized. In addition, kiosks, military employees number over 20,000 some residences in slums and various infor- people. Of the societies in the Aden vicin- mal buildings are also included in this ity, 133 actually had land allocated to them category. during the 1994 war, with the remainder The individual properties category has in some stage of application for lands. One one of the highest number of claims, due problem is that there appear to be more to the duplication of land sales and alloca- individuals filing claims in this category tions, and multiple forms of land occupa- than are on lists provided by housing soci- tion. These involve primarily residences in ety authorities. urban areas, both houses with parcels of While investment-related claims are lower land attached as well as apartments. A pri- in number than for other categories, they can mary problem is that a single confiscation be quite complicated and involve large sums of an apartment block (a common form of of money. Subcategories have been created residential living in the socialist era) now from investment claims and include: invest- results in numerous claims for residences. ment lands, commercial lands, commercial In addition, the very wide variety of housing, and housing lands, and small commercial from large wealthy residences to small slum properties. These sub-categories are then dwellings, and hence the wide variation in further grouped by geographic location, and value and service provision at the time of then by root causes of the problem. confiscation, leads to many difficulties in Claims against agricultural lands com- determining compensation. This can be prise ownership, leasing and rental cases compounded by the attempt on the part of lodged by individuals or groups. The many claimants to seek additional compen- Commission received over 8,500 cases for sation based on perceived increases in value agricultural land claims prior to the Houthi of their confiscated property over time. conflict, with most of these involving large However, many current occupants of these farms. The subcategories for agriculture properties purchased them in good faith include claims based on group and individ- from those who initially confiscated them, ual leases, land reallocated by sheiks, looted and have since invested in these properties, and damaged agricultural lands, and lack of so that their value is now many times what it provision of lands from past commissions’ initially was. This is a particular problem in Art. 6, page 8 of 19 Unruh: Mass Claims in Land and Property Following the Arab Spring areas that were previously slums when they them out. Claims outside the Commission’s were confiscated, but are now developed official mandate include those pertaining middle-class residential areas; or where to land and property expropriated before confiscated factories or commercial farms 1990, claims decided upon by previous have been invested in by several parties. commissions, and claims involving issues Further complicating the compensation to that fall under the responsibility of other be awarded is the unknown nature of the institutions. Many of these claims reflect compensation fund, which then influences significant unattended grievances. The the allocation formula. commissioners noted that these ‘out of mandate’ claims present a real dilemma Complications in the Nature of the in that, if not dealt with in some fashion, Claims significant widespread animosity and resist- In addition to Yemen’s historical and con- ance toward the Commission would likely temporary difficulties regarding land and develop. For example, some claims based on property in the South, the nature of the expropriations prior to 1990 include loss of claims themselves submitted to the Land land due to the brief 1986 civil war in South Commission are highly problematic. The Yemen. Complicating the issue is that those claims are rife with ambiguity, confusion, southerners who lost land in the 1986 war misunderstandings and incomplete informa- joined with the northern forces in the 1994 tion regarding, evidence; timing; demarca- war. When the northern forces engaged in tion; overlapping claims; mixes of Islamic, land confiscations after the 1994 war, the customary, tribal and statutory law from dif- southerners who fought with them not only ferent eras; power and influence; corruption benefited from the confiscations, but also and fraud; possible affiliation with extrem- sought to reclaim their former lands. This ist groups; and changes in property value, connected the two wars in terms of expro- authority and legitimacy. Cases involving priation, claims and grievance. Other ‘out of such difficulties would almost certainly be mandate’ claims stem from lands national- dismissed from conventional court proceed- ized in the 1970s under the pre-unification ings based on state law, and yet in a mass socialist government of South Yemen. Still claims transitional justice context they must others are based on applications for hous- be engaged and dealt with quickly, fairly ing submitted to the state in the 1980s, but and effectively in order to provide a sense which are now submitted as claims seek- of socio-political justice for an aggrieved ing restitution for lands that were never population. This priority figures prominently granted. alongside justice based on the legal merits of For southern Yemen the cut off year of each case. This section examines some of the 1990 for ‘out of mandate’ claims constitutes a more challenging difficulties that the claims significant difficulty. While the establishment present. of a cut off date is a conventional technique Prior to the suspension of its activi- in mass claims restitution programs, this is ties, the Land Commission estimated that easier when land and property expropriation approximately 30 per cent of the claims is connected only (or primarily to) a specific lodged were not officially eligible, but period of time in which certain events took instead were fraudulent, frivolous, outside place. The objective of such a cut off date is the Commission’s mandate, or duplicates. to manage the volume of claims, and address Fraudulent and frivolous claims present the the most aggrieved population. However, challenge of how to make this determina- establishing and enforcing such a date for tion quickly (and fairly) for the thousands mass claims processes in countries with a his- of claims this applies to, and then screen tory of armed conflicts which include land Unruh: Mass Claims in Land and Property Following the Arab Spring Art. 6, page 9 of 19 and property expropriations, can be quite housing projects that were to serve as claims problematic and entail significant risk. Fairly remedies; and lands awarded as compensa- intricate, interconnected and often acutely tion that were unoccupied due to the lack negative socio-spatial relations are created of basic services or insecurity. Also included in the course of forced dislocation, battle- in this list are the decisions to award alter- field gains and losses, squatting, land grab- native land as compensation, but which bing, secondary occupation and occupation then were never allocated; lands returned of new areas as conflicts and their repercus- to individuals but which continued to be sions progress, laying the foundations for the occupied by others; and, those who ille- next conflict. As sequential wars occur, socio- gally took over someone’s house and was spatial relations regarding land and property evicted by a previous commission, subse- rights multiply, such that attending to claims quently submitting a claim to the current that appear to be linked to specific dates and Commission for compensation due to this events, in reality are often also connected to eviction. The justification for submitting previous dates and events. This is very much these claims to the current Commission is the case in southern Yemen. The country has that the inability of previous land commis- been involved in eight wars over the last 50 sions and associated authorities to imple- years (Timeline 2015) with three of these, ment and enforce decisions constitutes an involving AQAP, Al-Hirak and the Houthis still additional land and property transgression ongoing at the time of writing. The expro- in itself that should now be addressed. priation-related events within the mandated An additional type of claim that is out- timeframe of the Commission, and the land side the Commission’s mandate comprises and property repercussions of previous wars those that should instead be taken up are so tightly interconnected that the Land by other land and property institutions. Commission ultimately made the decision These claims reflect the everyday needs of to include claims from before 1990. Current a population’s relationship with land and President Hadi also gave a clear order to property – such as completing property include claims dating back to a time prior to transactions, obtaining licenses, deal- 1990. While this order is not part of the initial ing with inheritance issues, surveying decree creating the Land Commission and its and demarcation, and the resolution of mandate, it should be seen as a clarification a variety of common disputes. Those that of the mandate and a recognition of the diffi- submit such claims to the Commission culty of creating a cutoff date in the southern do not misunderstand the purpose of the Yemen context. President Hadi’s clarification Commission, and they do understand that also demonstrated that his office supports their claims should be dealt with by other the broader thrust of the mass claims process relevant government institutions. The as part of a political strategy – something that problem is that these institutions suffer should be taken into account in the compen- from profound dysfunction, low capac- sation process. ity, disorganization and lack of coopera- Also outside the Commission’s mandate tion. And because the Land Commission are claims that had already been decided is seen as new, having federal and interna- upon by previous land commissions but tional support, and is active and organized, have not been implemented, resulting in a such claims are instead submitted to the variety of claims being filed again with the Commission in the hopes of having these current Commission. These include alter- relatively common needs attended to. The native lands awarded as compensation that dilemma for the Commission is that these were already claimed or occupied by others; types of claims are so numerous, and con- the same land being allocated to different stitute such an accumulation of unattended Art. 6, page 10 of 19 Unruh: Mass Claims in Land and Property Following the Arab Spring needs, that they risk becoming a significant lineages do exist, many members of these set of grievances if the Commission does groups have also applied for restitution on not address them. their own, either because they were not Overlapping and duplicate claims is a aware of the broader group claim, desired significant issue; it exists in various forms, to be assessed separately, or are attempt- and creates much ambiguity and confu- ing to receive two properties – one under sion. Besides the overlapping claims due each claim. to sheik activity noted previously, there The disruptive effects of power and influ- are additional cases involving agricultural ence on land and property restitution is lands that were used as compensation by well known (Bradley 2015; Fay and James earlier land commissions, but which are 2009). In southern Yemen certain power- also claimed by tribes and lineages. This ful, influential individuals ended up with results in claims filed with the current valuable lands as a result of the 1994 war. Commission by both the claimant who was The Land Commission noted that some to receive compensation and the tribe/ senior northern military commanders lineage. were creating obstacles for the resolution A different form of overlapping claims of certain claims and that political will occurs in the context of Islamic law. Under would be needed to address these claims. the Islamic inheritance law invoked by the Unfortunately, this political will was lack- claimants in Yemen, heirs have the right to ing. Particularly problematic will be expro- file claims to land and property expropri- priated lands that contained investments, ated from a forbearer. This allows a number such as buildings and factories. To compen- of heirs (often comprising more than one sate for their value, destruction, or lost rev- generation) to file a claim to the same land enue will be a prolonged, complicated and or property that a forbearer was dispos- expensive proposition. In addition, well sessed of. This has significantly increased placed individuals who have benefited from the number of individuals claiming land land confiscations have sought to legal- and property or compensation for its loss. ize their occupation, making it difficult to Also in the context of Islamic law are com- return these to their original owners. plications resulting from the confiscations of waqf properties.2 Restitution of waqf Transition from Bureaucracy to the involves answering the questions of who Treatment of Evidence can legitimately file a claim on behalf of The mass claims approach prior to the who, to what purpose the property is to be Houthi conflict returned, and if restitution is not possible, Before the suspension of its activities, the how and to whom will alternative proper- Land Commission pursued its mass claims ties or compensation be offered. This is program on a both a case-by-case basis, and complicated by the fact that the purpose of as group claims.3 The bureaucratic process waqf is to benefit a specific sector of the focused on documentary evidence provided population in perpetuity. by claimants. This procedure, however, was Duplicate claims often involve issues unable to cope with the volume of claims, related to group vs. individual claims. the urgency of the socio-political need, the Depending upon the claim type, claimants reality of claimants, and the low institutional are encouraged to file as part of a group. capacity of government entities charged with However, a portion of these file both indi- implementation. The bureaucratic procedure vidual and group claims. Thus, while group was comprised of 14 multi-component steps claims for housing societies, apartment to forward the claim to the president of the blocks, sets of employees, certain tribes and country for final approval. The steps needed Unruh: Mass Claims in Land and Property Following the Arab Spring Art. 6, page 11 of 19 to actually implement the president’s deci- prospective participants in the tenure sys- sion were so numerous, opaque, convoluted, tem, assuming its fairness and effectiveness controversial and difficult, that for the two as part of the broader transition in Yemen years the Commission was in operation, not is proven. a single claim decision had actually been implemented. This was a significant prob- Evidence and objectives lem. The national and international com- One of the most difficult objectives for legal munity supporting the Commission strongly professionals to grapple with in transitional indicated that the population in the South justice land and property restitution programs needed to see ‘movement’ in their cases, and is the need to move away from examining the warned of the political tensions that could merits, evidence and specifics of each individ- ensue if this did not occur. They further rec- ual case to form decisions. The slowness and ommended that the Land Commission tailor cost of such an approach is prohibitive, and its work to produce timely and impactful runs counter to the overall purpose of large- decisions, rather than waiting for all of the scale mass claims restitution. Rather than con- database, personnel and legal infrastruc- sidering the legal merits of individual cases, ture to be put into place. This highlights the overall objective of mass claims land [t]he objectives of resolving mass and property restitution programs, which is claims are to provide real justice to to prioritize the perception of social justice the victims of the events which gave as opposed to the legal technicalities of the rise to the claims, and to allay the dis- claims themselves. ruptive discontent within a nation or The Commission’s approach to claims society that unresolved wrongs per- processing was compounded by misunder- petuate (IBPCA 2006). standings between the Commission and the public. The public had unrealistic expec- Thus mass claims programs need to utilize tations with regard to the time needed to a variety of innovative evidentiary tech- resolve claims, the implementation pro- niques to facilitate the timely processing of cess, the amounts (money or land) to be numerous claims, create an impact of socio- awarded as compensation, and individual political relevance, and render justice effec- eligibility. The public was also unaware tively despite the complicated claims (e.g., of the Commission’s progress. This led to Rosenfeld 2013; IOM 2008; Jeffress 1991; the perception that there was perhaps no Haersolte-van 2006). progress, or that progress was very slow. The problem of how to treat evidence in Unless such expectations and the public transitional justice land and property restitu- information deficit can be managed once tion programs is that the relevant procedural the Commission resumes its activities, the law must indicate what is appropriate. Such risks are that the public will become disil- procedural law in a transitional justice con- lusioned, lose trust in the Commission, text is different than the procedural law that and opt for more problematic resolution resides in state law. Claims processing under alternatives. The importance of an effective state law focuses on the adequacy of docu- communication strategy and expectation mentary evidence. However, in transitional management applies not only to claim- justice restitution programs, such evidence ants, but also to the general public. It was is highly problematic and necessitates a very noted during fieldwork that even people different approach and process (e.g., Fay and with no land claims were watching to see James 2009; Haersolde 2006). Claimants if the rule of law could be established with often provide partial, informal, unverifi- regard to property rights. These people are able or non-relevant documentary evidence. Art. 6, page 12 of 19 Unruh: Mass Claims in Land and Property Following the Arab Spring

Sometimes no documents are provided if to the rigid legal and evidentiary rules, the lands were held under tribal or customary process should address the needs of claim- tenure, properties were informally held, or ants. This means that officials need to work if documents were destroyed by war, the with the evidence that is available (minimal current occupier, over time, or abandoned as it might be) and find ways to build upon, during dislocation (Unruh 2014).4 Historical corroborate and use such evidence. documents are often used, including colo- nial and pre-colonial era documents together Connecting Treatment of Evidence with attestations of lineage, inheritance and with the Realities of Mass Claims purchase records. However, the surge in fal- Standards of proof, burden of proof and sified land and property documents during plausibility and after wars tends to decrease the over- The pressure on restitution processes to all value of documentation (Unruh 2011). evaluate and quickly decide upon many Further complicating the process is that thousands of claims, has led a number of those who have taken over lands and prop- mass claims programs to alter the stand- erties (or who have subsequently purchased ards of proof compared to more conven- them) often do have documentation, usu- tional practices (Singh 2006; IOM 2008). ally issued by the state which facilitated This is not only due to the need to provide the initial confiscation and reallocation, or timely decisions and remedies for claim- obtained as the current occupants seek to ants, but also because of the difficulties solidify their occupation (Unruh 2011). Thus that claimants might encounter in provid- the primary challenge becomes how to pro- ing adequate evidence as a result of forced cess evidence that returnees do have, taking dislocation, travel, and residence elsewhere into account the socio-political realities and under arduous conditions. Using lower more effective mass claims processing. standards of proof in a mass claims pro- Reliable methods are needed to address ceedings allows for evidence that may be the realities and urgencies of land restitution incomplete, indirect, partial or of a lower in southern Yemen, as these are connected value. For example, a number of mass to instability, trust-building in government claims processes have accepted docu- institutions, separation or continued unity ments such as bills, receipts, water and with the north, the role of AQAP, and recov- electricity documents, or service related ery from the Houthi war. The next section documents – essentially anything that describes techniques that are more suited to demonstrates that the claimant once the southern Yemen reality than the bureau- resided in the area where the property con- cratically heavy and legally rigid approach fiscation took place (e.g., Haerosolte 2006; taken by the Land Commission prior to the Heiskanen 2006). In addition, documents Houthi conflict. The intent here is to present that proved when and where a claimant the southern Yemen case as an example of took up a new residence in a different loca- mass claims restitution in countries which tion could corroborate the approximate experienced an Arab Spring. In these areas, date when the initial land or property was local officials might be tempted to pursue confiscated and the claimant or claim- large volumes of claims according to conven- ant group was dislocated (Singh 2006). tional legal processes; however, the socio- Accepting lower standards of proof can be political realities call for a transitional justice especially useful for the rapid processing approach. In such cases, the driving theme is of lower value claims. Conversely, a higher not the integrity of the law, but rather the pre- standard of proof might be needed to pro- vailing socio-political realities and urgency. cess high value claims (which will be fewer Rather than expecting claimants to adhere in number) (Singh 2006). Unruh: Mass Claims in Land and Property Following the Arab Spring Art. 6, page 13 of 19

Another option in cases where the claim- person(s) has better or identical evidence for ants lack evidence is to reverse the burden the same claim. of proof, as long as the basic right of a fair The UN Compensation Commission trial is maintained. Thus, the burden of (UNCC) during the 1990 – 1991 Gulf War, proof shifts from the claimant to the cur- accepted evidence that only needed to rent occupant. In this case the occupant demonstrate ‘satisfactorily’ that a claim or would need to prove that either 1) they are group of claims was eligible for compen- the legitimate owner by way of a series of sation. The standard of proof was lowered legitimate transactions 2) they acquired the even further for certain categories of urgent land or property in a legitimate way, or 3) claims as set out in specific guidelines for the claim the claimant is making is false. quicker processing. For such claims only Shifting the burden of proof can be easier ‘simple documentation’ of the facts was when it occurs from a weaker to a stronger needed (Holtzmann and Kristjansdottir party, such as the state – in which case the 2007). The guidelines were constructed so state would have to prove one or more of that they designated a monetary value limit the three constructs noted above. A related (of the property claim); claims below this approach is to relax the claimants’ burden required even lower standards of evidence. of proof but not that of the current occu- The UNCC regulations demonstrated that pant. Such an approach would need to be the lower the compensation to be awarded, accompanied by a minimum standard of the lower the standard of evidence needed evidence, which the claimants would need (Singh 2006). Thus, the large numbers of to meet to discourage potential fraudulent similar claims submitted to the UNCC that claims (Das and Van Houtte 2008). were below an established monetary value, Using a ‘plausibility’ construct together required lower evidence standards and so with lower standards of proof for partial, were quickly resolved. The UNCC also used incomplete and indirect evidence, signifies the lower evidence standard for claims that that it is plausible (but not certain) that the were very similar in location, time, or the evidence presented does in fact support a manner in which the property was confis- claim to loss of land or property (IOM 2008). cated or lost (Singh 2006). Such a likelihood becomes stronger if there The UNCC also established an evidentiary is no other evidence that disagrees with the threshold that provided for the acceptance evidence presented (Haersolte-van 2006). of evidence deemed ‘appropriate to the con- The Claims Resolution Tribunal for Dormant ditions’ of the claimants’ dislocation from Accounts in Switzerland identified three cri- the property in question (Singh 2006). In teria in the use of ‘plausibility’ that appear other words, if property confiscation took to be widely useful (Das and Van Houtte place in such a way that the claimant did 2008). The first criteria is that the claimant not have the time, money, awareness or lit- (or claimant group) produces the documents eracy to gather, produce, or record the nec- and information that can be reasonably essary documentary evidence, then a more expected, given their circumstances. Thus, a relaxed standard of proof was used which judge will assess the difficulty of the claim- was suitable to property confiscation under ants’ circumstances and the evidence that such conditions (Singh 2006). In this con- the claimant has provided, in order to deter- text the plausibility standard was used, so mine if the evidence is reasonable. The sec- that the claimant simply needed to demon- ond criteria is that the judge needs to decide strate that it was plausible or ‘likely’ that, if a reason exists that fraud or forgery might given the circumstances of the confisca- affect the claim. The final criteria is that tion, the claimant was entitled to compen- the judge needs to determine if any other sation. This approach directly connects the Art. 6, page 14 of 19 Unruh: Mass Claims in Land and Property Following the Arab Spring treatment of evidence to socio-political in time, and it was generally known that realities. land confiscations were occurring in that area during that period, then it can be ‘pre- Evidentiary patterns and presumptions sumed’ that the claimant’s land was indeed Use of evidentiary patterns and presump- confiscated, even though evidence is lack- tion methods are valuable because they can ing. Presumptions are most useful when address both the poor quality or lack of docu- adequate evidence is scarce, absent or dif- mentary evidence, and the need for timeliness ficult to gather. They can be considered to in investigating individual claims. Patterns of be true until other evidence becomes avail- evidence that emerge from a certain group able which attests strongly to the presump- of claims can be quite useful in making judg- tion of being untrue (Das and Van Houtte ments for the whole group; these frequently 2008). Similarly, because many land and involve hundreds or thousands of cases (IOM property losses tend to occur in the same 2008). Often those claimants that had land market and economic conditions during a or property confiscated under similar cir- certain period of time, the value of prop- cumstances will provide similar evidence, erty losses for a group of similarly-sized or however partial or oblique; this enables the same-purpose properties can be reasonably establishment of a pattern of evidence. These calculated for the purpose of compensation patterns can then be used to help define a (Heiskanen 2006). particular group of claimants, and the pat- A number of contemporary mass claims tern itself can become useful evidence. The programs make use of such presumptions. greater the number of similar claims, the The Artibtral Commission on Property, more solid the pattern and the stronger each Rights and Interests in Germany; the individual claim becomes (Haersolte-van United Nations Compensation Commission 2006). The pattern can be particularly useful for the Iraq-Kuwait conflict; The Claims in deciding upon claims in which a claimant Resolution Process for Dormant Accounts only has partial evidence, but which fits the (Switzerland); and the International broader pattern, and thus signifies that the Organization for Migration Commission for case can be included in the group to receive Real Property Claims, all made use of pre- a group decision (Haersolte-van 2006). Such sumptions in managing claimants’ lack of patterns of evidence can be developed and evidence (Holtzmann and Kristjansdottir applied in a number of ways. 2007). Some mass claims programs that Similarly, ‘presumptions’ can be use- have used presumptions formulate deci- ful because many claims arise out of the sions in precise and detailed terms, in order same locations, events or periods of time. to avoid creating new injustices (Holtzmann Many confiscations were committed by the and Kristjansdottir 2007). same group or type of people – such as the military or those from a certain part of the Precedent-Setting country, as in the case of southern Yemen. Precedent-setting techniques are often In these situations, the lack of evidence used together with other techniques. Using can be compensated for by presumptions precedent-setting techniques, certain indi- justified by widely known information or vidual claims are selected to be decided general knowledge about what went on upon earlier in the claims-processing pro- during a certain period of time in a par- gram because they are representative or ticular area (Karrer 2005; Singh 2006; IOM typical of many claims of a similar type 2008). For example, if it was proven that (IOM 2008). This ‘representativeness’ can be a claimant, or numerous claimants, lived determined by various grouping techniques, in a certain location at a particular period such as evidentiary patterns, plausibility or Unruh: Mass Claims in Land and Property Following the Arab Spring Art. 6, page 15 of 19 presumptions. The setting of a precedent which may support or corroborate evidence can establish the legal basis to then make a brought forth by the claimant or facts about similar (or the same) decision for an entire the case (IBPCA 2006; Dans and Van Houtte category of claim. Therefore, those with 2008; Singh 2006; Haersolte-van 2006). Even similar types of claims would not need to seemingly unrelated information can be possess all of the required evidence; the sole used for this purpose. This technique seeks requirement is that they belong to the type to corroborate certain events that took place of claim for which a precedent has been set which resulted in dislocation and loss of (Haersolte-van 2006). land and property; or that certain assertions Precedent-setting was used effectively by regarding land and property rights are or the Iran-United States Claims Commission to were true. While use of non-party evidence solve claims following Iran’s 1979 Islamic rev- has been worthwhile, the technique has olution; by the International Organization for now become particularly valuable because Migration; and by the Housing and Property contemporary conflicts produce immense Claims Commission in Kosovo (Holtzmann quantities of event-related information that, and Kristjansdottir 2007). In the first case of unlike during earlier wars, is now accessi- Iran-related claims, the Commission selected ble via the internet, such as news and other nine cases, in which each one represented reports; twitter feeds; and photos and videos a different sub-category. These nine cases produced by cell phones, security cameras, were then considered and decided upon by aircraft and satellites. Lynch et al (2015) the Commission, establishing precedents for describe the different databases derived from each sub-category. This successful effort was social media and various analyses which pro- accomplished without the aid of computers; vide insight into specific events, processes, each precedent-setting case was carefully locations, and constituencies that can be considered one by one, but decisions were used to corroborate different types of res- then rendered very quickly for entire sub- titution claims. Such analyses can likewise categories of claims based on the precedents contribute to the development of eviden- (Holtzmann and Kristjansdottir 2007). An tiary patterns. Matching can also provide a additional advantage of this technique is rough screening function by separating out that it provides consistency in decision-mak- claimants that are not matched with certain ing. This is important in a number of ways, non-party evidence. The matching of non- not the least of which is consistency across party evidence has been used effectively by ethnic, sectarian, religious, or other divides the UNCC for the Iraq-Kuwait conflict, and common in war-affected societies. by the Commission for Real Property Claims of Displaced Persons and Refugees in Bosnia Matching and Non-Party Evidence and Herzegovina (Singh 2006). Some mass claims processes have been able to computerize the resolution of large num- Oral Testimony as Evidence bers of claims by matching a few specific In cases where documentary evidence is facts in the claims with information in other lacking or is in need of corroboration, ver- databases that were not constructed for land bal evidence has been accepted by a number and property rights purposes (Holtzmann of mass claims processes (e.g., Singh 2006; and Kristjansdottir 2007; IOM 2008). Such Wiget 1995; OTP 1994). The treatment of ‘non-party evidence’ is generally held by oral (or ‘parol’) evidence in legal proceed- governments, non-governmental organiza- ings regarding land and property rights has tions, the private sector and international advanced significantly in recent years. Such organizations. In other words, this is evi- evidence can either be a recitation of events dence that is not held by the claimant, but or assertions (e.g., who owns what), or can Art. 6, page 16 of 19 Unruh: Mass Claims in Land and Property Following the Arab Spring be bound up in oral histories and oral tra- Conclusion ditions, particularly for peoples without a Acute land and property rights grievances documented past. Legal approaches in the have emerged as a fundamental component treatment of this form of evidence include of the Arab Spring, with significant impli- techniques such as thematic coherence; cor- cations for stability, recovery, reform and roboration; and the analysis of oral tradi- economic and livelihood development. The tion as attached to landscape using criteria Yemen case illustrates one of the more signif- of validity, reliability and consistency (e.g., icant patterns that will continue to emerge as Hoffman 1984; Wiget 1995). Importantly, states attempt to manage a restitution pro- oral forms of evidence do not detract from cess able to address the accumulation of land the notion of a ‘fair trial’ in claims pro- and property-related grievances in a timely ceedings. Ultimately it is the value of such and effective manner. The intention here is evidence that can make it important in tran- that the lessons from Yemen may be of use sitional justice processes. to similar efforts in other Arab Spring states. In the case of the UNCC, the oral evidence One final note is warranted. The overall that was accepted included detailed descrip- goal of any mass claims land and property tions of the land or property in question, program is to process as many claims as with the assumption that such intimate quickly and fairly as possible. The tech- knowledge would be known by a former niques noted here (among others), either occupant of the land. In the case of the land singly or in combination, are designed to restitution program in post-apartheid South facilitate rapid decisions for large numbers Africa, oral history handed down from one of claims. One problematic aspect of such generation to another was allowed as evi- an approach is that it constitutes a form of dence (OTP 1994). This form of evidence ‘rough justice’ (Karrer 2005). This occurs as is legally termed ‘heresy’ (repeating what some viable claims are excluded, while other someone else said), and is generally not undeserving claims are included in specific allowed under normal circumstances in group decisions. This is inevitable, such that court proceedings. However, in the transi- the question becomes, as Karrer (2005) asks tional justice context of South Africa, the in the context of mass claims and rough jus- South African Commission recognized that tice – how rough? Issues of urgency, volume most people affected by the apartheid era of claims and the potentially destabilizing dislocations (including their descendants) activities of the most aggrieved segment of only had verbal evidence to support their the population (if their claims are not quickly cases. In this case, the Commission prior- addressed) must be carefully considered when itized social perceptions of justice over strict weighing the ‘roughness’ of justice against legal proceedings (OTP 1994). the desired speed and coverage of decisions. Often verbal evidence is used to cor- These are more socio-political considerations roborate other forms of evidence. For the than legal, and the tension between these UNCC the question of how much weight to two aspects of mass claims processing must give verbal evidence depended on if it was be carefully managed. This can be challeng- able to corroborate verbal evidence with ing when, as is usually the case, the person- other evidence. The UNCC also allowed nel assigned to conduct claims processing verbal evidence from witnesses (persons come from legal backgrounds where the that were not the claimant) such as rela- propensity is to treat each case on its legal tives and neighbors who might have known merits. At the same time, however, the size of that the claimant was the previous owner the claimant pool, degree of grievance, and or occupant, or that confiscation took place the socio-political urgency are important. (Singh 2006). Thus, the stakes for effectively managing this Unruh: Mass Claims in Land and Property Following the Arab Spring Art. 6, page 17 of 19 tension are high. The repercussions of land Brehony, N 2011 Yemen divided: The story of and property expropriations, reallocation, a failed state in South Arabia. London: I.B. forms of ‘cleansing’, discrimination, patron- Tauris & Co. age, and dysfunction visited on significant Dabbas, S and Burns, T 2011 Developing segments of populations within Arab Spring Effective Policy and Planning in Yemen. states will present real risks for future sta- In: International Federation of Survey- bility and development, unless they can be ors Working Week, Marrakech, Morocco, effectively addressed. 18–22 May. 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How to cite this article: Unruh, J D 2016 Mass Claims in Land and Property Following the Arab Spring: Lessons from Yemen. Stability: International Journal of Security & Development, 5(1): 6, pp. 1–19, DOI: http://dx.doi.org/10.5334/sta.444

Submitted: 20 November 2015 Accepted: 06 April 2016 Published: 08 July 2016

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