International Legal Assistance Consortium Discussion Paper: Resolving the Property Issue in Syria Technically Possible, Politically Challenging and Central to Accountability International Legal Assistance Consortium Discussion Paper: Resolving the Property Issue in Syria Technically Possible, Politically Challenging and Central to Accountability The primary author of this paper is Rhodri Williams, Senior Legal Expert. Contributions have been made by Stefan von Raumer, Committee on Constitutional Law, German Bar Association and Barbara McCallin, Expert Consultant on Housing, Land and Property Issues. December 2020 © Copyright 2020 by the International Legal Assistance Consortium (ILAC). All rights reserved. ILAC encourages the use of the information contained in this report but requires citation to the authors and source. Cover photo: Lee Bernard (Shutterstock.com). 02 03 Resolving the Property Issue in Syria ILAC Discussion Paper Contents 1. Introduction……………………………………………………………… 4 ____________________________________________________ 2. Accountability for HLP violations in Syria ……………………7 ____________________________________________________ 3. Historical patterns of HLP violations in Syria………………. 9 ____________________________________________________ 4. Addressing HLP Issues in Syria………………………………….. 13 ____________________________________________________ 5. Protecting Home and Property…………………………………… 17 ____________________________________________________ 6. Developing a procedural remedy for HLP violations…….. 22 ____________________________________________________ 7. Substantive remedies: restitution and compensation……. 26 ____________________________________________________ 8. Addressing the gender dimension of HLP rights………….. 29 ___________________________________________________ 9. Conclusions and Recommendations…………………………… 32 Acronyms and List of Abbreviations COI Commission of Inquiry CSOS Civil society organisations ECHR European Convention on Human Rights HLP Housing, land and property ICTJ International Center for Transitional Justice IDPS Internally displaced persons IIIMM International, Impartial and Independent Mechanism UN United Nations 04 05 Resolving the Property Issue in Syria ILAC Discussion Paper 1. Introduction By all appearances, contemporary Syria has become one of the places where the post-World War II rules-based order has gone to die. The United Nations (UN) has stood by in enforced idleness as the fighting raged, its mandate to combat threats to international peace and security set aside by divisions in the UN Security Council. Meanwhile, the core international rules and standards – human rights, rule of law, international humanitarian and criminal law – that represent the normative foundation for the UN’s work have been flouted by all parties to the conflict with near complete impunity. The human toll of this breakdown in global governance has been enormous. The death toll in Syria is thought to exceed 500,000, of which more than 11,000 are known to have been tortured to death in government prisons.1 Wartime conditions have led to the forced recruitment, detention, disappearance and killing of tens of thousands of men and boys. They have also dramatically worsened the situation of Syrian women, who already faced systematic legal and social discrimination before 2011 and are now frequently left trying hold together displaced families without legal rights to household economic assets. The Syrian economy is already at the verge of collapse, with core public services such as education and healthcare barely functioning and recent sanctions by the United States of America raising the prospect of food insecurity and even starvation.2 The arrival of COVID 19 has dampened fighting but seen the introduction of draconian restrictions on freedom of movement.3 Meanwhile about half the population is displaced, including over 6 million internally displaced persons (IDPs) in Syria and similar number of refugees outside the country.4 The Syrian Government has adopted a series of laws and decrees that threaten the property rights of large part of the population, particularity those who are displaced, and concerns are rising that these will prevent meaningful return and create new displacement, leading to a protracted regional crisis. To date, all efforts to develop international accountability mechanisms have stalled. While veto threats have prevented the UN Security Council from 1 Megan Specia, “How Syria’s Death Toll is Lost in the Fog of War”, The New York Times (13 April 2018). 2 Maha El-Dahan, Ellen Francis, “Severe bread shortages loom for Syria as fresh U.S. sanctions grip”, Reuters (09 July 2020). 3 Center for Operational Analysis and Research, “Mobility restrictions and financial peril mount as COVID-19 spreads”, Syria Update: 06 April 2020 (06 April 2020). 4 Internal Displacement Monitoring Centre, “Country Overview: Syria” (accessed 15 January 2002). referring the situation in Syria to the International Criminal Court5, the International, Impartial and Independent Mechanism (IIIM) created by the UN General Assembly in 2016 can assist in prosecuting Syrian war crimes by actively compiling evidence. The body has no independent mandate to prosecute crimes.6 The UN Independent International Commission of Inquiry for Syria (COI) has documented war crimes, crimes against humanity and even genocide in the course of the Syrian conflict, but there is no international mechanism to investigate and prosecute the responsible individuals. In light of this paralysis of international justice, advocates have focused on national indictments and prosecutions, mainly in European countries, under the theory of universal jurisdiction.7 There has been notable progress in pursuing accountability before European courts in individual cases.8 However, this avenue will not be available to most victims, and perhaps serves primarily to remind the public and policymakers of the enormity of the crimes in Syria, underscoring the need to address them in an eventual peace process. Meanwhile, approaches based on universal jurisdiction are not without risks. First, they must not obscure the primary duty of the authorities in Syria to protect their population from harm and provide redress when they fail to do so. Second, it is crucial not to limit the concept of accountability for crimes in Syria to prosecution. In fact, accountability is a much broader principle that also includes legal remedies and reparations addressed to victims. For individuals and communities affected by the conflict, forced displacement and the confiscation of property and homes stand out as crimes that may lead to the permanent victimization of those affected. The loss of homes and properties compromises displaced persons’ security, privacy, and economic livelihoods. Property frequently represents the most important economic asset of whole families, and its loss perpetuates displacement, preventing those affected from fully exercising basic human and civil rights. In this sense, resolving the property issues of displaced persons may represent the most important part of the accountability puzzle in Syria. Moreover, there are a range of strong incentives for resolving the property issue with the potential to unite a broad coalition of actors. Finding a solution for displacement and creating legal certainty around property rights is crucial for sustainable peace and development, not only in Syria but also in the 5 Maryam Saleh, “Syrian Refugees Use Precedent Set in Rohingya Case to Try to Bring Government Officials Before the International Criminal Court”, The Intercept (16 March 2019). 6 United Nations, “Head of International Mechanism on Syria Describes Progress Documenting Crimes Committed by Both Sides, as General Assembly Takes Up Report”, Press Release (GA/12139, 23 April 2019). 7 Borzou Daragahi, “‘It gives us hope’: European prosecutors piece together cases against Syrian regime war criminals”, The Independent (16 November 2019). 8 European Center for Constitutional and Human Rights, “With the First Criminal Trial Worldwide on Torture in Syria, German Courts to Set International Precedent” (29 October 2019); Civil Rights Defenders, “Syrians in Sweden are Demanding Redress for Torture” (20 February 2019). 06 07 Resolving the Property Issue in Syria ILAC Discussion Paper broader region. Concerns about the protracted displacement of millions of Syrians have led to increasing pressure to address the “housing, land and property” (HLP) question in the context of peace talks and constitutional negotiations. Meanwhile, the deepening economic crisis in Syria has exposed the population at large to further threats to their economic assets and property rights.9 Given that historically unclear and inequitable property rights hindered equal development in Syria, there are incentives for all sides to be interested in an equitable and sustainable outcome. During the 1990s and 2000s, new responses to conflict-related HLP violations were crafted and disseminated. Successful practice in contexts like Bosnia, and international standards such as the development of UN Restitution Principles helped to drive a process by which HLP remedies became a standard element of peace agreements. Regional human rights courts, most notably the European Court of Human Rights, have also developed detailed jurisprudence setting out effective responses to conflict-related HLP violations. While the issues thrown up by the conflict in Syria are technically complicated and politically sensitive, they