Paying Attention to Land Rights in Syria Negotiations

As President Donald Trump ponders his response to yet another chemical weapons attack in Syria, advisers and commentators alike are mired in short-term calculations. But one day the Syrian conflict will come to an end. Whether this will involve the kind of negotiated settlement being sought in Geneva, or a much less formal accommodation of a bleak status quo, the resolution of housing, land and property (HLP) rights will be an essential part of any future peace. And at present, HLP is not getting nearly the attention it deserves.

Now in its seventh horrific year, the Syrian conflict has displaced over 11 million people – almost half of the pre-conflict population. HLP rights uniquely affect those displaced because after being expelled from their land they are left unable to defend their property rights. As conflicts from the former Yugoslavia to Sudan have demonstrated, people forced from their land by violence can be kept from their land permanently through illegitimate or ill-conceived laws.

Beyond the sizeable direct impact on the displaced themselves – including, most notably, on their right of return — the failure to resolve HLP rights risks undermining any post-conflict political process. In order to be involved in the political process, displaced persons must be able to physically return to Syria. The absence of this large portion of the population will have a significant effect on elections. Indeed, elections cannot be considered a legitimate representation of the true political will of the Syrian population if such a significant proportion of the population is precluded from participating. This in turn will negatively affect justice and accountability, undermining efforts to achieve a sustainable peace.

Creating new facts on the ground

Since 2011, Bashar al-Assad’s government has passed a number of laws that have undermined the legal status of the displaced population, preventing many from claiming title to land that was once theirs. It has used terrorism accusations to confiscate property, including from those who have been displaced and are thus unable to challenge the accusation. And it has re-regulated large areas of land to the advantage of its political supporters.

Last week, the Syrian government enacted Law No. 10. This law extends a 2012 re-zoning order (legislative decree 66) from Damascus to the entire country. On its face, Law No. 10 appears to be benign. It aims to regulate and develop areas of informal settlements, enabling the government to undertake necessary expropriation for reconstruction, and offer fair compensation to the affected people. However, most of the inhabitants of these areas are opponents of the government who were forced to flee. Although the law allows relatives of displaced persons to represent them in a situation of expropriation, opponents of Assad will be reluctant to interact with the government, fearing reprisal. As a result, many Syrians are concerned the law is simply another instrument to punish people in opposition areas and to change Syria’s demography.

Beyond these legislative actions, the Syrian government has also destroyed real property records. Because the conflict halted the process of migrating Syrian property titles from a paper-based to an electronic system, the destruction of property records has a significant impact on original title holders. And again, this problem is compounded by displacement. A recent survey by the Norwegian Refugee Council found that just 17 percent of Syrian refugees had documentation about their property with them in the countries to which they had fled. And another survey, conducted through the UN High Commissioner for Refugees, found a mere 9 percent of those displaced inside Syria had managed to maintain their property records.

Problems for the HLP rights of the displaced are not solely attributable to government action. In opposition-held areas, local councils have established their own land registries. While these enable those in the area to conduct real estate transactions, their practices have often been arbitrary and inconsistent. For instance, we have been told that some ad hoc institutions in Idlib have transferred ownership by modifying the original deeds. This practice undermines the evidentiary value of these official documents and may render them void.

The Way Forward 

Notwithstanding UN Security Council resolution 2254, which emphasizes the importance of building the conditions for voluntary return, the ongoing peace talks have not focused on HLP rights at all. Al-Assad’s government has no incentive to address these rights in the negotiations, and the opposition lacks a comprehensive plan for approaching HLP. Additionally, there is scarce data or expertise on what is a highly technical topic.

The history of land manipulation in Syria predates the recent conflict. Syria has a long legacy of unjust land distribution. During Ottoman rule, the government instituted the iqta system, assigning large areas of land to select individuals who collected taxes for the government. This problem was exacerbated during the French mandate, which further concentrated large land areas in the hands of the few. During the union with Egypt in 1958, Syria underwent large-scale expropriation measures as part of the Land Reform Law, the aim of which was to address the Ottoman and French legacy of unjust land distribution. However, this policy was later used by the Ba’ath Party to consolidate power and punish political dissenters. While the current negotiation is unlikely to provide a remedy to those measures, it is important to put the current property concerns in a larger context.

Absent effective measures to empower Syrian civil society and international actors to address HLP rights, displaced Syrians will be unable to exercise their right of voluntary return or receive property restitution. There is understandable reluctance to add complexity to what is already an overcrowded negotiation process. But the inclusion of HLP rights in the peace talks is indispensable to ensuring the legitimacy and sustainability of any post-conflict outcome in Syria.

Image: Jeff J Mitchell/Getty

 

About the Author(s)

Deyaa Alrwishdi

Syrian lawyer with an LL.M from American University Washington College of Law. Previously served as a legal deputy at the Syrian Construction and Establishment Institute. Follow him on Twitter @deyaa_alrwishdi.

Rebecca Hamilton

Assistant Professor of Law at American University, Washington College of Law, Author of "Fighting for Darfur: Public Action and the Struggle to Stop Genocide" Follow her on Twitter (@bechamilton).