By Anneke Smit
[Associate Professor in the Faculty of Law, University of Windsor]
In his chapter focussing on property restitution for refugees and IDPs at international law and at the ECtHR, James Sweeney captures effectively the tension between the “generalised ideal” and the “uncomfortable reality” of justice provision in this area.
This chapter is a welcome contribution to a growing body of literature critiquing the brightline approach of the Pinheiro Principles, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, and other related instruments with respect to post-conflict housing and property restitution. The importance of these instruments should not be underestimated. They were part of what might be described as a “first wave” of international thinking about post-conflict restitution, one which aligns closely with the principles of “post-conflict justice” developed by Bassiouni. The Pinheiro Principles provide that restitutio in integrum (actual return of the property rights of which the displaced person has been deprived) is the preferred remedy in almost all cases. As Sweeney describes, however, there has been a second wave comprising a healthy amount of criticism of the Pinheiro Principles in recent years, and the ECtHR has taken an approach to post-conflict restitution that would not likely meet the idealistic views of post-conflict justice. There have been frequent concessions, Sweeney argues, by the ECtHR to the present needs of transitional states. The ECtHR has shown flexibility in its acceptance of restitution mechanisms which do not meet the unequivocal standard of the Pinheiro Principles and which do not subscribe to the “factually impossible” test of the Principles in determining the circumstances under which a remedy other than restitution in kind may be considered acceptable. This, Sweeney argues, looks more like Teitel’s “transitional justice” – a messier, less perfect form of meting out justice and societal healing in the post-conflict world where a host of political, social, economic and legal considerations come into play.
Sweeney does not explore this explicitly but one wonders whether part of the reason that the ECtHR has been reticent to rely in too rigid a way on a brightline approach to property restitution, as the Pinheiro Principles do, is that so many of the ECtHR’s cases on the right to property and remedies for its deprivation have concerned cases of very long duration;many address situations of property nationalisations or redistributions during the socialist era, for example. (Likewise, restitution processes in South Africa have had to address long-term dispossession under apartheid and have also shown far greater acceptance of compensation as a remedy for deprivation of property rights than the Pinheiro Principles would propose.) Even if one is inclined to take the position, in the vein of the Pinheiro Principles, that a refugee displaced relatively recently in an armed conflict should have a clear right to restitutio in integrum, the waters become far more murky when dealing with long-term displacements. I would be interested to hear Sweeney’s position on what role the passage of time should play in the balancing of retroactive and prospective interests concerning property. Mick Dumper, Jeremy Waldron and others have considered this question. The Pinheiro Principles would suggest that the passage of time should make no difference, presumably unless return to the property in question becomes “factually impossible” as stated in Principle 2.1. Yet it seems that inherent in some of the decision-making of the ECtHR on restitution is just such a nuance – that the longer the property deprivation goes on, the harder it is to insist upon restitutio in integrum, at least for all properties and all property owners, as the preferred remedy.
There are two other directions in which I would be eager to see Sweeney expand his careful analysis of the transitional justice framework. The first is related to the above discussion and concerns the question of the rights and roles of secondary occupiers. Sweeney’s paradigm seems largely to suggest a balancing of individual rights in property against the broader societal exigencies of transitional justice; he seems less receptive to the notion of competing private rights in property. The Pinheiro Principles provide only procedural guarantees for secondary occupiers, not substantive rights in the property they inhabit. However in some cases there will be actual justice claims made on the part of the secondary occupiers, in particular during extremely protracted displacement situations. Choices must be made about who may be involved/can benefit, for what types of property, and on what timelines. The questions that Rosemary Nagy asks about transitional justice – “Justice for what, for whom and to what ends? – are pertinent here. As Sweeney points out, turning back the clock on property ownership to a particular moment in time and providing a justice process based on this can be highly problematic, in particular if land issues were at least in part the basis for the conflict in the first place. Sweeney hits the nail on the head when he reminds the reader that in transitional justice “law plays a Janus-faced role, being both backward and forward looking”. Secondary occupiers, and the new social and economic communities they have built during their occupation, may be part of the necessary looking forward.
Secondly, a growing body of work on property issues in the post-conflict context has begun to look at the question of urban planning needs in any post-conflict city, and at what is required, from a structural or infrastructural perspective, to help to rebuild a country, region or city torn apart by war and encourage refugee return. Part of the need for acceptance of a “transitional relativism” in the sphere of property issues might involve an analysis of what urban planning decisions must be made to facilitate return and reconciliation in the post-conflict sphere. Simply returning property rights to a particular date prior to the conflict does not pay heed to the changing needs of a post-conflict society which must begin to reconcile and heal itself. Further, long-term displacement often feeds processes of urbanization and a strict restitutio in integrum approach does not address effectively the increased demands for property and housing in urban centres in the post-conflict world. While imperfect, the approach of the European Court of Human Rights seems far better able to balance these competing interests than the post-conflict justice framework of the Pinheiro Principles and related instruments. Sweeney’s article does an excellent job of reconciling international legal provisions with international human rights law practice, and of showing us why we must continue, from both judicial and political perspectives, to muddle through the uncomfortable reality of a nuanced approach to post-conflict property restitution.