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Control of and access to land has been a source of conflict and displacement in numerous countries such as Colombia, Guatemala, the DRC, Kenya, the Philippines, Rwanda and Zimbabwe. Restitution of land and property upon return is therefore a central element of post-conflict reconciliation. But it is particularly chal lenging in countries with less formalised legal systems, where it can be hard for displaced people to prove their ownership rights.
Destroyed house in the Central
African Republic, Foaleng, 2006
Access to housing and land is a concern lasting from the beginning to the end of the displacement cycle. Once displaced people are forced from their place of origin, they can face difficulties in finding adequate shelter and land to ensure minimum food security and self-reliance. If they are not provided with alternative solutions, IDPs tend to encroach on the land of populations living in the areas to which they have fled, which can then create further tensions (as has been the case in Kenya). When the security situation improves or a peace treaty is signed, property disputes associated with the return phase are another potential source of tension. Returning IDPs often find their houses and land destroyed or occupied by other people, as in Peru, Guatemala, the Balkans and in Sudan’s Darfur region. For this reason, it is crucial that peace agreements include provisions for the resolution of property and land problems. Such provisions currently exist in 17 countries affected by internal displacement, including in Nepal where a peace agreement was signed in November 2006. This accord stated the commitment of both the government and the Maoist rebels to return land and other property seized. At the regional level in Africa, a protocolon the property rights of returnees was adopted in December 2006 in the framework of the Great Lakes Conference process, and model legislation was drawn up in September 2006 with the objective of protecting the property rights of IDPs in coun tries such as Burundi, the DRC, Rwanda and Uganda.
In many post-conflict situations, institutions have been set up to process property claims and resolve disputes. In 2006, new restitution or compensation mechanisms were created in Iraq, Georgia, Lebanon and in northern Cyprus. Obstacles in the way of these mechanisms range from the authorities’ lack of will to the weak role of the international community to the fragility of the rule of law and state authority inherent in post conflict situations.
The tension between customary and statutory law that exists in most countries in Africa, Asia and Latin America, as well as the very low level of formal land registration, is another factor complicating the restitution/compensation process. It is estimated that in Africa only 1 per cent of land and property are registered under the cadastral system, mostly in urban South Africa. In the absence of reliable property registration and cadastre, displaced persons do not have the possibility of presenting ownership titles to prove their possession of land or property. In addition, informal ownership is usually based on customary law and linked to the right of use, and this right becomes lim ited in case of displacement and may favour those who have been using the land.
Rwanda: Cultivated landscape
in Ruhengeris, Birkenes, 2005
Land titling has been presented by many states and some international organisations as a way to increase security of tenure and better protect property rights. However, there have been several cases where land titling had adverse consequences.
In countries such as Indonesia, Sudan and the Philippines, natural resources and unoccupied land, includ ing some land held under customary law, have been declared state-owned and later sold into private own ership. In Sudan and Colombia, the state used this process to grant concessions to oil and mining companies, which resulted in the forced displacement of the resident population. In countries such as Uganda and the DRC, political and economic elites, with the collaboration of certain traditional chiefs, have taken advantage of land titling programmes to obtain private ownership over customarily owned land. In Uganda, land held under customary ownership was priva tised during displacement, leaving IDPs without land to which to return.
A similar process is occurring in Asia. In the Philippines, Christians, benefi ting from better access to information about land titling programmes, obtained titles over land owned under customary law by indig enous Lumads and Muslims. This led to widespread displacement of the latter groups. Now that the majority of lands in conflict-affected areas are titled, it is difficult for ancestral land claims to be adjudicated. Despite government attempts to recognise the right of indigenous people to hold lands under their ancestral claims or ownership through the adoption of an Indig enous People’s Rights Act (IPRA), there has been little result. The Muslim population in particular refuses to be considered as indigenous people, and the IPRA is not, in practice, applied in the Autonomous Region in Muslim Mindanao. In India, property rights violations are a constant source of displacement in tribal areas, where customary law has been the rule until the gov ernment decided to use the land. Large development projects led by the state have provoked several waves of displacement. In the absence of alternative solutions, people displaced by those projects have often occupied others’ land, thereby creating a new source of tension and displacement; this has been the case in numerous instances in northeast India.
In the context of a poorly functioning formal state system for land transfers and purchase, and with the breakdown of the customary system as the result of displacement, land titling initiatives can thus have a negative effect, in particular on vulnerable individuals, such as displaced people, women (particularly widows) and children. Members of these groups are usually considered to have tenancy rights only, not ownership rights. Land titling usually benefits those in power and men. Given inequitable laws and practices denying wives joint ownership of family land, women often lose out in this process. In cases where land titling contributed to violations of rights and was one of the causes of displacement, a return to the status quo ante will not necessarily lead to a fair outcome. Restitution in such situations should be replaced by some form of land redistribution.
> Read more on the Land, Housing and Property situation per region
> See also our Land, Housing and Property resources page
> See also "Right to land and the protection and restitution of properties"
in Colombia (IDP Voices website)
For more information, please contact our Land, Housing & Property Advisor, Barbara McCallin