IDPs and refugees yearning to return - Part I

by Austin Fernando

(November 17, Colombo, Sri Lanka Guardian) In recent times there had been vast discussion on returning the displaced. The Lessons Learnt and Reconciliation Commission (LLRC), media, Diaspora, diplomatic inquiries- especially from India- led these dialogues. When certain Tamil representatives gave evidence before the LLRC the internally displaced person’s (IDP’s) and refugees’ rights and plight became secondary to devolution, as if Kandiahs and Sundaris gave prominence to devolution than their lost children, spouses, houses etc. Whenever LLRC held sessions in the North and East the affected proved those politicians wrong by demanding return of their disappeared children and spouses and entry to their lands in High Security Zones (HSZs).

Restitution became such an important issue, the Indian Minister of External Affairs plans to visit the resettled areas and Secretary Nirupama Rao, the Indian High Commissioner, German Parliamentarians, United Nations (UN) officers, diplomats etc have visited the Provinces observing the status of restitution and resettlement. Concurrently, the Indian Minister Chidambaram reiterated President Rajapaksa’s promises of resettlement to Tamilnadu Chief Minister Karunanidhi. President Rajapaksa’s promises are not unfounded as the government has moved towards restitution guided by Minister Basil Rajapaksa.

Tamil politicians and Tamilnet demand ceasing of "state aided colonization in the North and East." It is given an ethnic twist by calling the process "Sinhalization" and "Sinhalacization" of the "homelands". Even the respected Cardinal Malcolm Ranjith re-orchestrated similar sentiment with non-venomous holy words, which earned him the wrath of Minister Keheliya Rambukwella who bluntly said that every inch of land belongs to all Sri Lankans and there are no separated areas; a truism. After defeating the "separatist war" when "homeland concepts" have been dashed to splinters, what else can one expect from the Government Media Spokesman?

LLRC’s interest

Though the interim proposals of the LLRC are not known to me, the Commission would have submitted to the President restitution proposals in similar frame of mind as mine. In my evidence before the LLRC I emphasized on the processes for restitution, based on the Handbook on Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles).

The response of the Chairman to me was "I must on behalf of the Commission thank you for the wide canvas of views that you articulated and I think some of the views that you articulated on principles of housing and property restitution of refugees and displaced persons and reconciliation would be of immense value to the Commission in formulating our recommendations." I justifiably believe the LLRC would honour the Chairman’s utterances. Hence, I wish to summarily deal with those Principles as appearing relevant.


Realities of restitution / resettlement

There are some realities that should be reckoned in dealing with this subject.

If the Government of Sri Lanka (GOSL) wishes to be effective and reasonable in restitution/ resettlement, it must genuinely recognize that thousands of IDPs and refugees lived under inhuman conditions and they possess the right to voluntary return, in safety and dignity, to their original or former habitats.

Further, GOSL must recognize that in this process the rights of refugees and displaced should be respected and it need to undertake positive measures to ensure that their rights to housing, land and property restitution are guaranteed. In dealing with this there are many national and international institutions established to ensure the restitution rights of the affected for which the GOSL has concurred. Other than the multilateral obligations, bilateral agreements (e.g. Indian financial commitment for housing) have to be respected by the GOSL.

The GOSL should convince that the implementation of successful housing, land and property restitution programs is a key element of restorative justice, contributing to effectively deter future situations of displacement and building sustainable peace and can compensate loss of face on other alleged rights issues.

She should not forget that there had been previous measures and commitments made during disasters (e.g. Tsunami) and the current resource availability, which have to be compatible during post-conflict restitution.

These basic realities have to be honoured by the GOSL, other stakeholders and understood especially by those who expect heavy commitments from the GOSL for rehabilitating the IDPs and refugees.

Genuine reasons delaying restitution / resettlement

The situational analysis of displacement is clouded with past issues such as the creation of HSZs, potential for terrorist regrouping, tsunami rehabilitation experiences etc. Similarly, end of conflict and the LTTE smashed up, the affected and their spokespersons highlight lessened security threats and legal issues, requiring lawful restitution.

However, it is necessary to be practical and reasonable in dealing with HSZs. There were several communities displaced due to HSZs who will demand restitution of their properties and resettlement therein. They are: (1) people who lived adjacent to the core HSZ areas (e.g. Palaly Air Port or KKS harbour); (2) people whose properties were acquired (e.g. some properties near Palaly and Batticaloa Air Fields); (3) houses "occupied forcibly without owner permission’ when the owners fled (e.g. near Chavakachcheri); (4) other properties used by the security forces. The properties that were forcibly acquired by the LTTE in North and East are another focus area.

The (1) and (2) categories fall to the category of assets that cannot be quickly returned or ‘non-returnable’ to owners due to projected security concerns. Now with the LTTE fire-power wiped out, the GOSL can reassess the potential threats and decide on HSZs, as already done successfully to an extent, though the affected are dissatisfied. For categories (3) and (4) it is important that releasing be examined not only by the Military, but by a tribunal making prompt realistic compensation, if the lands are un-returnable. However, the State’s need takes precedence, which fact should be understood by the affected. State too should not be obsessed with power and self-centred and act. Such behaviour invariably attracts unwarranted criticisms.

Some practical and legal difficulties faced by the affected are important for restitution and resettlement. Firstly, there is need to find documentary evidence of ownership of properties. The initiative planned in the East (Daily Mirror -November 13th) is a positive approach to overcome this problem. In case of the displaced Sinhalese in Jaffna it may be the age-old Lease / Rental Agreements. Secondly, due to Military and LTTE occupation the boundaries and landmarks have disappeared and hence shortage of surveyors to clear the confusion arises. Thirdly, demining is an often quoted problem. Engaging rehabilitated former Tiger cadres experienced in demining may be considered to fast track demining, if acceptable. Fourthly, the recent decision to issue Death Certificates by the GOSL after a shorter period of disappearance may overcome another compensation problem. These require even changes to laws, procedures, institutional rearrangements etc because lending agencies, Local Authorities and regulatory bodies like the Urban Development Authority demand these to administer loans and approve plans. Hence, these are urgent priorities.


Pinheiro Principles

There are internationally accepted principles for restitution. Pinheiro Principles are one such. They deal with the optimum standards and hence could be adjusted as per situational demands. They have five major foci, as follows, which I explain, as ad hoc utterances by various authorities on restitution are frequently heard.

(a) The Right to Housing and Property Restitution

(b) Overarching Principles of Restitution

(c) The Right to Voluntary Return in Safety and Dignity

(d) Legal, Policy, Procedural and Institutional Implementation Mechanisms

(e) Role of the International Community, Including international Organizations


The Right to Housing and Property Restitution

Peneheiro Principles say "All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore as determined by an independent, impartial tribunal. States shall demonstrably prioritize the right to restitution as the preferred remedy to displacement and as a key element of restorative justice. The right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor non-return of refugees and displaced persons entitled to housing, land and property restitution."

Whenever a disaster hit the country, GOSL has accepted the contents of Pinheiro Principles in some way. However, the sensitivity of the conflict has by its actions left room for the affected to question the government’s acceptability of the Principles. These actions were necessitated due to security concerns, which in turn are questioned due to wiping out of Tigers in 2009. However, to totally absolve any threat cannot be accepted so soon, as stated by the Ministry of Defence. This demands reconciliatory actions to build confidence between the citizens and GOSL.


Overarching Principles of Restitution

There are several principles stated in Peneheiro Principles, but some like The Right to Privacy and Respect for the Home, Right to Peaceful Enjoyment of Possessions and Right to Adequate Housing are skipped due to their lacking importance in our context. Other principles are briefly discussed here.

(a) The recognition of the Right to Non-Discrimination Principle on grounds of race, ethnicity, language etc and equality before the law are important in restitution. The complaint against GOSL, rightly or wrongly made by Tamil politicians, Diaspora, affected and pro-LTTE media is based on discrimination on ethnicity and race. For example, in November 2010 Tamilnet made six exposures on discrimination or favouritism on ethnic grounds regarding restitution, some insinuating State complicity, which may not be totally true, but even if partially true would send wrong signals. If Diaspora support is anticipated such reporting will bear negative consequences. It is heartening to note President Rajapaksa recently stating publicly (Adaderana November 15th) that there will be no ethnic discrimination in restitution. The need for an integrated approach to solve problems may still stick in such background.

(b) The Right to Equality between Men and Women- State has to ensure the equal rights of men and women to the enjoyment of housing, land and property restitution. This will be for return, inheritance, tenure rights and control of and access to housing, land and property. Recognition of joint ownership rights of both the male and female heads of the household as an explicit component of the restitution process is highlighted. Excepting the "control of and access to housing, land and property" in the HSZs there is not much serious problems submitted by the affected.

(c) The Right to be Protected from Displacement- Everyone has the right to be protected against being arbitrarily displaced from his or her home, land or place of habitual residence. During conflict too this right stands though difficult to adhere as Sri Lanka has experienced. There had been occasional questionable situations, (though not extensive) reported especially in Tamilnet. Hence, GOSL should incorporate protections against displacement into legislation/ systems, consistent with international human rights and humanitarian law and related standards, and should extend these protections to everyone within their legal jurisdiction or effective control. The safety issues are minimized now though there were many complaints some time back during operations. However, Tamilnet has complained of forced eviction, demolition of houses and destruction of agricultural areas and the arbitrary confiscation or expropriation of land as a "punitive measure" consequential to war. Mr. Ananda Sangaree has been at the forefront making written allegations on such to the President. The GOSL has responded with the explanation of exaggerations, possible LTTE threats of regrouping to justify its actions. Finding alternate solutions may be considered by the GOSL.