The international community should promote and protect the right to housing, land and property restitution, as well as the right to voluntary return in safety and dignity and should take fully into account the prohibition against unlawful or arbitrary displacement and, in particular, the prohibition under international human rights law and related standards on the practice of forced evictions.
by Austin Fernando
(November 18, Colombo, Sri Lanka Guardian) I may harp on this issue further as forced eviction and forced occupation of lands are issues bringing disrepute to the GoSL, providing ammunition to those questioning the credibility and the good name of the GoSL. I quote from Prohibition of Forced Evictions Commission on Human Rights Resolution: 2004/28, which affirmed:
(i) Forced eviction is contrary to laws that are in conformity with international human rights;
(ii) Urged governments to undertake immediate measures to eliminate forced eviction;
(iii) Urged governments to protect all who are currently threatened with forced eviction based upon effective participation, consultation and negotiation with the affected.
(iv) Recommended that all governments provide immediate restitution, compensation and/or appropriate and sufficient alternative accommodation or land to the forcibly evicted, following mutually satisfactory negotiations.
(v) Reminded all international financial, trade, development and other related agencies to take fully into account the contents of this resolution; and,
(vi) Requested the UN High Commissioner for Human Rights to persuade governments to comply with relevant international standards, to prevent planned forced evictions from taking place and to ensure the provision of restitution or just and fair compensation.
Going by these, it is possible to evict IDPs and refugees only by honouring the right for adequate housing within the above-mentioned conditions. If the government’s goal is within these parameters one cannot anticipate ‘forced evictions’. Nevertheless, the issue is whether such consultation, negotiation, participation, compensation etc are or could be operationalized in a yet unstable security situation, with lacking confidence, state’s authority being challenged through "Transitional Governments" and resource constraints. Hence, all stakeholders should explore methods of acceptable restitution to suit these eventualities.
(d) The Right to Freedom of Movement- Though this is observed in the broad overview between the districts, allegations are levelled against restrictions in certain areas. However, here too national security will be of major interest but relaxations in qualified areas have to be provided, at least in stages. Defence authorities have commenced such action but the affected are more anxious. If the end of war means replacement of LTTE combatants by soldiers it will be a static human security environment. GoSL’s security personnel legality will be the only differentiation.
However, the recent statement by GA Jaffna (though challenged) indicated that the status has fast changed, which is a favourable development. I believe, the demand seems to be for the principles governing the right to choose the residence, non-execution of arbitrary or unlawful forcing to remain in specified areas, or possible arbitrary forcing to depart from certain areas, controls on livelihoods, because security requirements take precedence. The complainants highlight consistency to international human rights, refugee and humanitarian law and related standards. However, one factor that is not adequately highlighted in defence of the GoSL when responding to complaints is the authority the state has to subject citizens to restrictions that are necessary to protect national security, public order, public health or morals or the rights and freedoms of others. These are issues that should be considered in a balanced manner by the GoSL, as well as by other political groups who should cooperate with the government.
Right to voluntary return
All refugees and displaced persons have the right to voluntarily return to their former homes, lands or places of habitual residence, in safety and dignity. This right cannot be abridged under conditions of state succession, nor can it be subject to arbitrary or unlawful time limitations. Refugees and displaced persons shall not be forced, or otherwise coerced, either directly or indirectly, to return to their former homes, lands or places of habitual residence. They should be able to effectively pursue durable solutions to displacement other than return, if they so wish, without prejudicing their right to the restitution of their housing, land and property. Unfortunately, all these are complaints from the North, especially with a partial political and ethnic twist, which makes exaggeration compulsory.
The safety factor in addition to return will depend on some issues like freedom of movement, non- recurrence of displacement and protection, non-discrimination etc. According to certain anti-government media these rights are violated by not permitting return and pressure brought to leave camps to suit the GoSL calendars and agendas. Rather than pressurizing in this manner, for both parties it is best that some dialogue takes place.
Dignity is not achieved by return alone. It should go hand in glove with freedom, economic rehabilitation, livelihood development, civil society activation etc, which should be promoted in the former conflict zone. The complaint is that instead of these, ’ has preceded. Special mention is quoted by critics regarding economic activities and livelihood activities, for which confidence- building measures should be promoted as 30 year old scars of war cannot be erased overnight. The contribution of politicians of both ends, clergy, genuine civilian interventions and media support should be highlighted as lubricants.
Implementation mechanisms
This is a focus area that covers most of the operational issues. It needs vast reinforcement too.
(a) National Procedures, Institutions and Mechanisms- States should establish and support equitable, timely, independent, transparent and non-discriminatory procedures, institutions and mechanisms to assess and enforce housing, land and property restitution claims (including that of tenants and collective claimants). Everyone arbitrarily or unlawfully deprived of housing, land and/or property should be able to submit a claim for restitution and/or compensation to an independent and impartial body, free of charge, gender sensitively, permitting separated and unaccompanied children’s "best interests" are ensured and to timely receive quickly disposed determinations on claims.
Do the affected consider the existing procedures, institutions and mechanisms possessing these qualities? Rightly or wrongly, from LLRC evidence by Tamil civilians and politicians, it does not appear so. Even the affected Muslims await positive performance like Tamils.
Believing the manner (Sunday Times October 31st) reported the distribution of tractors by the ICRC and the quick resettlement of Sinhalese displaced in Navathkuli (Virakesari reports on November 13th / November 14th) do not confirm such confidence in the Tamil minds. GoSL should take all appropriate administrative, legislative and judicial measures, guidelines to support and facilitate the housing, land and property restitution process and confirm apolitical and impartial responses. It is extremely difficult but essential because the causes for the 30 year conflict were mainly due to biased political / developmental interventions. Programmes should comprise of adequate consultation and participation with the affected communities.
(b) Rights of Tenants, Secondary Occupants and other Non-Owners- Within restitution programmes states should recognize the rights of tenants and other legitimate occupants or users of housing, land and property. To the maximum extent, states should ensure that such persons return to and re-possess, use their housing, land and property similar to those possessing formal owner-rights. Minister Milroy Fernando who stated recently (Mulpituwa November 15th) that he believed that the Sinhalese displaced were only tenants in Jaffna, need not consider it a disqualification for restitution / resettlement under this principle. The difficulty is that international guidelines demand ensuring the safeguards of due process extended to secondary occupants without prejudice to the rights of legitimate owners, tenants and other rights holders to repossess the housing, land and property in question. However, this may make the displaced Sinhalese families from the North happy.
(c) Legislative Measures- International requirements are for recognition of an essential component of the rule of law and legislation to ensure the right to housing, land and property restitution, including through the adoption, amendment, reform, or repeal of relevant laws, regulations and/or practices. These should be studied, and with a long list of lawyer members in the LLRC this could be dealt with. There are several state organizations that could assist restitution, e.g. National Housing Development Authority, Housing Development Finance Corporation, State Mortgage Investment Bank. More organizations (e.g. Cooperative Rural Banks, Sanasa Banks) could be authorized legally for the specific purpose of restitution and resettlement in the conflict affected areas. They should be directed to ensure through appropriate means to respect, implement and enforce decisions and judgments made by relevant bodies regarding housing, land and property restitution. States should adopt specific measures to prevent the destruction or looting of contested or abandoned housing, land and property. Minutely such incidents are reported in the Tamilnet. In order to minimize destruction and looting, GoSL should develop procedures to inventorize the contents of claimed housing, land and property within its restitution/ resettlement programmes and may even introduce state sponsored insurance schemes as a safeguard.
(d) Compensation- All refugees and IDPs have the right to full and effective compensation as an integral component of the restitution process. Compensation may be monetary or in kind. States shall, in order to comply with the principle of restorative justice, ensure that the remedy of compensation is only used when restitution is not factually possible (e.g. when housing, land and/or property is destroyed or not in existence, as determined by an independent, impartial tribunal) or when the affected party knowingly and voluntarily accepts compensation in lieu of restitution, or when the terms of settlement provide for a combination of restitution and compensation. Even under such circumstances the holder of the housing, land and/or property right should have the option to repair or rebuild whenever possible. In some situations, a combination of compensation and restitution may be the most appropriate remedy and form of restorative justice. Anyway, some spokespersons for the affected expect total replacement of assets after decades of devastation, but it must be noted that the GoSL is cash strapped not to abide by such demands immediately and this should be considered favourably by foreign donors too, who should maintain non-discriminatory compensation packages, to avoid criticisms of favouring.
The international community should promote and protect the right to housing, land and property restitution, as well as the right to voluntary return in safety and dignity and should take fully into account the prohibition against unlawful or arbitrary displacement and, in particular, the prohibition under international human rights law and related standards on the practice of forced evictions.
They should share expertise on the development of national housing, land and property restitution policies and programmes and help ensure their compatibility with international tools for rights protection. They should cooperate and coordinate with GOSL authorities and maintain a balanced approach of support and give their resources and experiences to the GoSL to create an effective and efficient voluntary return of the affected.
Performance
What we observe in restitution / resettlement is the demand made from the GoSL for performance under threatening pressures for time, resources, amalgamated demands for instance, such as, security and threat perceptions of the military etc. While the GoSL authorities may not be perfect, admittedly spokespersons for the affected too are not. It is proved from the haste and uncompromising demands for restitution, resettlement and compensation. Striking a balance between the government authorities and the affected is the main issue. To suit internationally acclaimed standards exactly as described here is difficult. Nevertheless, adhering to them will be an easy way to avoid reduction of accumulated fault finding and to prove GoSL’s unbiased, ethical behaviour.
Here I have tried to selectively discuss important aspects of restitution in the Pineheiro Principles. Deeper study by the GoSL and representatives of the affected will be useful to strike this balance. I wish it happens and a professional job satisfying the GoSL, affected, civil society and internationals could be found. Empty rhetoric of wilful forced eviction that could bring criticism from the affected and the internationals coining human rights violations by such action should be avoided as the country has to move towards reconciliation, and not hatred. This cannot be achieved by such understanding by the GoSL alone. The affected and spokespersons should understand the difficulties the government faces and hence tolerance and compromise are the most appreciated qualities to strike this golden balance. LLRC is a good tool to recommend such consensual approach and it is up to the GoSL to address restitution / resettlement in a legal, professional and reasonable manner.
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