Documentation of pre-conflict HLP rights
HLP rights existing in historic city centres should be assessed as early as possible, initially by examining and documenting all pre-war legitimate HLP rights and their holders.
As a general rule, official land registers are not reliable sources of information because pre-war documents may have been destroyed or falsified.
Information is best gathered from IDPs and refugees living in camps or communities in other countries. Even those who left home without documents can, by way of personal testimony, be a primary source of the information required not only to document their claims, but also to establish their rights once the conflict has been resolved by a political solution.
Information can also be furnished by international, grassroots and local non-governmental organisations that are supporting reconstruction or otherwise engaging with local neighbourhoods. They may not have access to HLP data, but often accumulate information about the individuals and families who formerly lived in the relevant areas.
HLP rights should be documented on the basis of pre-war maps and/or satellite images, and the pre-war names of streets, squares, parks etc. should be used.
HLP rights in peace agreements
The best way of ensuring that HLP rights are given adequate consideration when historic city centres are being reconstructed is to make provision for them in peace agreements. In particular, at least the following HLP-related rights should be included in these agreements:
- Refugees and IDPs’ rights to return voluntarily in safety and dignity
- Everyone’s right to freedom of movement, to choose their residence, to participate fully and equally in public affairs, and to have equal access to public services
- Equal rights to the restitution of property
- Right to full, effective and prompt compensation – only as a last resort if restitution is impossible
- Equal rights to adequate housing
- Protection from arbitrary and unlawful displacement and forced eviction
These rights should be underpinned by additional provisions on programmes, procedures and mechanisms governing the process of return and restitution. These should define at least:
- Bodies and procedures for identifying, verifying and processing restitution claims
- Bodies, procedures and financial mechanisms for handling compensation
- Programmes to ensure adequate housing
Supporting HLP dispute resolution mechanisms
In view of the lack of trust in the state and its institutions in many post-conflict situations, it is important to establish dispute resolution bodies that can deal with HLP claims.
These may be local authorities or other traditional agencies that are trusted by the people, and in particular by returning refugees and IDPs. State parties would need to ensure that the decisions of these bodies are legally recognised and enforced, with oversight from international organizations where needed. Such bodies should generally be temporary, and their functions limited to war-related HLP claims.
Promotion of HLP rights without a peace agreement
If the peace agreement does not provide for the restoration of rights, actors supporting the reconstruction of historic city centres can nonetheless push for such restitution as follows:
- Making financial and technical support conditional on the restitution of all formerly privately held HLP assets to their legitimate pre-war owners, tenants or other legitimate occupants.
- Promoting a moratorium on sales, concessions and leases of public HLP assets in historic city centres pending clarification as to whether the state or public authority claiming ownership acquired them without violating any human rights.
Even if restitution initially takes place, there remains a risk that some people may be either unable to return or driven out again later. These circumstances typically arise if restoration and improvement of the urban landscape conforms to middle-class taste while alienating the original residents, either because of public policy – displacement and/or eviction justified by urban planning goals or excessive formal building standards, or through the abuse of market forces – exemplified by increasing rents and the cost of services, or even general living costs.
Successful reconstruction therefore requires instruments to limit gentrification and speculation, as well as mechanisms to protect the original legitimate HLP asset owners against the adverse effects of manipulative increases in housing, land and property prices. Action also has to be taken to ensure that planning and building standards are not misused as instruments of displacement or ethnic cleansing.
A distinct and sometimes large group of people warranting special protection are secondary occupants. These can be new legal owners, whose original home has been requisitioned by one of the fighting parties or temporarily occupied by people displaced from elsewhere. Although such displaced persons do not hold any HLP rights in the area, they have a general right to adequate housing which needs to be respected.