ISBN-10:
0521858755
ISBN-13:
9780521858755
Pub. Date:
06/30/2007
Publisher:
Cambridge University Press
Housing and Property Restitution Rights of Refugees and Displaced Persons: Laws, Cases, and Materials

Housing and Property Restitution Rights of Refugees and Displaced Persons: Laws, Cases, and Materials

by Scott Leckie

Hardcover

Current price is , Original price is $168.0. You

Temporarily Out of Stock Online

Please check back later for updated availability.

Overview

The legal recognition of the housing, land, and property rights of refugees and displaced persons has expanded steadily in recent years as the realization has grown that securing these rights will be beneficial to long-term peace, stability, economic vitality, and justice. This volume contains more than 240 of the laws, cases, and materials that have been adopted during the past century that accord those unjustly and arbitrarily displaced from their homes and lands with rights: not simply to return to their countries or places of origin, but to return to the original home, land, or property from which they were initially forced to flee. The breadth of the restitution standards found within this volume, combined with selected examples of case law and other materials, is a clear indication that a right to housing, land, and property restitution for refugees and displaced persons has emerged within the global legal domain.

Product Details

ISBN-13: 9780521858755
Publisher: Cambridge University Press
Publication date: 06/30/2007
Pages: 592
Product dimensions: 6.14(w) x 9.21(h) x 1.30(d)

About the Author

Scott Leckie is an international human rights lawyer and advocate. He is active in many fields, including economic and social rights, housing rights, forced evictions, housing and property restitution rights for refugees and displaced persons, human rights issues in post-conflict and post-disaster situations, business, and human rights.

Read an Excerpt

Housing, land, and property restitution rights of refugees and displaced persons
Cambridge University Press
978-0-521-85875-5 - Housing, Land, and Property Restitution Rights of Refugees and Displaced Persons - Laws, Cases, and Materials - Edited by Scott Leckie
Excerpt



PART ONE


Housing and Property Restitution Standards – International



1. INTERNATIONAL STANDARDS

INTERNATIONAL HUMANITARIAN LAW


1.1. Hague Convention (IV) Respecting the Laws and Customs of War on Land (1907)1


[…]


SECTION II – HOSTILITIES – CHAPTER I – MEANS OF INJURING THE ENEMY


[…]


Article 23

In addition to the prohibitions provided by special Conventions, it is especially forbidden

[…]

(g) To destroy or seize the enemy’s property, un-less such destruction or seizure be imperatively demanded by the necessities of war;

(h) To declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party…

[…]


Article 25

The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.

[…]


Article 28

The pillage of a town or place, even when taken by assault, is prohibited.

[…]


1.2. Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949)2


[…]


Article 33

No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.

Pillage is prohibited.

Reprisals against protected persons and their property are prohibited.

[…]


Article 45

Protected persons shall not be transferred to a Power which is not a party to the Convention.

This provision shall in no way constitute an obstacle to the repatriation of protected persons, or to their return to their country of residence after the cessation of hostilities.


Article 46

In so far as they have not been previously withdrawn, restrictive measures taken regarding protected persons shall be cancelled as soon as possible after the close of hostilities.

   Restrictive measures affecting their property shall be cancelled, in accordance with the law of the Detaining Power, as soon as possible after the close of hostilities.

[…]


Article 49

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or that of any other country, occupied or not, are prohibited, regardless of their motive.

Nevertheless, the occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practi-cable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.

The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.

The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.

The Occupying Power shall not deport or transfer parts of its own civilian population into the terri-tory it occupies.

[…]


Article 53

Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.

[…]


Article 147

Grave breaches…shall be those involving any of the following acts, if committed against persons or property protected by the present Convention:…extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

[…]


1.3. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1) (1977)3


[…]

Chapter III – Civilian Objectives


Article 52 – General Protection of Civilian Objects

1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in para-graph 2.

2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.

[…]


SECTION III – TREATMENT OF PERSONS IN THE POWER OF A PARTY TO THE CONFLICT


Chapter I – Field of Application and Protection of Persons and Objects


Article 73 – Refugees and Stateless Persons

Persons who, before the beginning of hostilities, were considered as stateless persons or refugees under the relevant international instruments ac-cepted by the Parties concerned or under the national legislation of the State of refuge or State of residence shall be protected persons within the meaning of Parts I and III of the Fourth Convention, in all circumstances and without any adverse distinction.

[…]


1.4. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1977)4


[…]


Article 13 – Protection of the Civilian Population

1. The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances.

2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

3. Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities.

[…]


Article 17 – Prohibition of Forced Movement of Civilians

1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.

2. Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.

[…]



INTERNATIONAL HUMAN RIGHTS LAW


1.5. Universal Declaration of Human Rights (1948)5


[…]


Article 8

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

[…]


Article 17

1. Everyone has the right to own property alone as well as in association with others.

2. No one shall be arbitrarily deprived of his property.

[…]


Article 25

1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

[…]


1.6. International Convention on the Elimination of All Forms of Racial Discrimination (1965)6


[…]


Article 5(e)(iii)

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and eliminate racial discrimination in all of its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:…(e) in particular…(iii) the right to housing.

[…]


Article 6

States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.

[…]


1.7 International Covenant on Economic, Social and Cultural Rights (1966)7


[…]


Article 2

1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.

[…]


Article 11

1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

[…]


1.8 International Covenant on Civil and Political Rights (1966)8


[…]


PART II


Article 2

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

[…]


PART III


Article 12

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are con-sistent with the other rights recognized in the present Covenant.

4. No one shall be arbitrarily deprived of the right to enter his own country.

[…]


Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

[…]


1.9. Convention on the Rights of the Child (1989)9


[…]


Article 16

1. No child shall be subjected to arbitrary or un-lawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

2. The child has the right to the protection of the law against such interference or attacks.

[…]


Article 22

1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.

[…]


1.10. Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries (1989)10


[…]


Article 16

1. Subject to the following paragraphs of this Article, the peoples concerned shall not be removed from the lands which they occupy.

2. Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned.

3. Whenever possible, these peoples shall have the right to return to their traditional lands, as soon as the grounds for relocation cease to exist.

4. When such return is not possible, as determined by agreement or, in the absence of such agreement, through appropriate procedures, these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. Where the peoples concerned express a preference for compensation in money or in kind, they shall be so compensated under appropriate guarantees.

5. Persons thus relocated shall be fully compensated for any resulting loss or injury.

[…]


INTERNATIONAL CRIMINAL LAW


1.11. Rome Statute of the International Criminal Court (1998)11


[…]


Article 5 – Crimes within the Jurisdiction of the Court

1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

(a) The crime of genocide;

(b) Crimes against humanity;

(c) War crimes;

(d) The crime of aggression.

2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.


Article 6 – Genocide

For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.


Article 7 – Crimes against Humanity

1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

2. For the purpose of paragraph 1:

(a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;

(b) “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;

(c) “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;

(d) “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;

(e) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;

(f) “Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;

(g) “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

(h) “The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;

(i) “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

3. For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.


Article 8 – War Crimes

1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

2. For the purpose of this Statute, “war crimes” means:

(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(i) Wilful killing;

(ii) Torture or inhuman treatment, including biological experiments;

(iii) Wilfully causing great suffering, or serious injury to body or health;

(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(vii) Unlawful deportation or transfer or unlawful confinement;

(viii) Taking of hostages.

(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

(vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

(vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;

(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

(ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

(xi) Killing or wounding treacherously individuals belonging to the hostile nation or army;

(xii) Declaring that no quarter will be given;

(xiii) Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;

(xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;

(xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war;

(xvi) Pillaging a town or place, even when taken by assault;

(xvii) Employing poison or poisoned weapons;

(xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

(xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;

(xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;

(xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;

(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

(xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;

(xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(iii) Taking of hostages;

(iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

(e) Other serious violations of the laws and cus-toms applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(v) Pillaging a town or place, even when taken by assault;

(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;

(vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;

(viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;

(ix) Killing or wounding treacherously a combatant adversary;

(x) Declaring that no quarter will be given;

(xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

(xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;

(f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.

3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.

[…]


Article 75 – Reparation to Victims

1. The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.

2. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.

Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79.

3. Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States.

4. In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1.

5. A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article.

6. Nothing in this article shall be interpreted as pre-judicing the rights of victims under national or international law.

[…]





© Cambridge University Press

Table of Contents


Acknowledgments     xvii
Preface     xix
Housing and Property Restitution Standards - International     1
International Standards     1
International Humanitarian Law     1
Hague Convention (IV) Respecting the Laws and Customs of War on Land (1907)     1
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949)     1
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1) (1977)     2
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1977)     3
International Human Rights Law     3
Universal Declaration of Human Rights (1948)     3
International Convention on the Elimination of All Forms of Racial Discrimination (1965)     4
International Covenant on Economic, Social and Cultural Rights (1966)     4
International Covenant on Civil and Political Rights (1966)     4
Convention on the Rights of the Child (1989)     5
Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries (1989)     6
International Criminal Law     6
Rome Statute of the InternationalCriminal Court (1998)     6
International Refugee Law     11
Convention Relating to the Status of Refugees (1951)     11
Protocol Relating to the Status of Refugees (1967)     11
The International Law of State Responsibility     12
International Law Commission's Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001)     12
Specific Restitution Standards     13
'Pinheiro' Principles on Housing and Property Restitution for Refugees and Displaced Persons (2005)     13
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (2005)     20
Peace Agreements     25
Cambodia - Agreement on a Comprehensive Political Settlement on the Cambodia Conflict (1991)     25
El Salvador - Peace Agreement between the Government of El Salvador and the Frente Farabundo Marti para la Liberacion Nacional (1992)     28
Mozambique - The Rome Process: General Peace Agreement for Mozambique (1992)     30
Liberia - Cotonou Agreement (1993)     30
Rwanda - Arusha Peace Agreement (1993)     31
Bosnia-Herzegovina - General Framework Agreement on Peace in Bosnia-Herzegovina (Dayton Peace Agreement) - Annex 7: Agreement on Refugees and Displaced Persons (1995)      31
Guatemala - Agreement on Identity and Rights of Indigenous Peoples (1995)     34
Croatia - The Erdut Agreement (1995)     36
Tajikistan General Agreement on the Establishment of Peace and National Accord - Protocol on Refugee Issues (1997)     37
Sierra Leone - Lome Peace Agreement (1999)     38
Burundi - Arusha Peace and Reconciliation Agreement for Burundi (2000)     38
Ethiopia and Eritrea - Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea (2000)     41
Liberia - Comprehensive Peace Agreement between the Government of Liberia and the Liberians United for Reconciliation and Democracy (LURD) and the Movement for Democracy in Liberia (MODEL) and Political Parties (2003)     43
Sudan - Comprehensive Peace Agreement - Agreement on Wealth Sharing during the Pre-Interim and Interim Period (2004)     43
Voluntary Repatriation Agreements     45
Socialist Republic of Vietnam and UNHCR (1988)     45
Republic of South Africa and UNHCR (1991)     46
Guatemala and UNHCR (1991)     46
United Republic of Tanzania, Democratic Republic of the Congo and UNHCR (1991)     46
Islamic State of Afghanistan, Republic of Iran and UNHCR (1992)     47
Republic of Mozambique, Zimbabwe and UNHCR (1993)     47
Union of Myanmar and UNHCR (1993)     47
Abkhazia, Georgia, Russian Federation and UNHCR (1994)     48
United Republic of Tanzania, Republic of Rwanda and UNHCR (1995)     51
Republic of Angola and UNHCR (1995)     51
Republic of Liberia and UNHCR (1996)     52
Republic of Burundi, United Republic of Tanzania and UNHCR (2001)     52
The French Republic, the Islamic Transitional State of Afghanistan and UNHCR (2002)     53
United Kingdom of Great Britain and Northern Ireland, the Transitional Administration of the Transitional Islamic State of Afghanistan and UNHCR (2002)     54
The Islamic Transitional State of Afghanistan, the Government of the Netherlands and UNHCR (2003)     54
Republic of Zambia, Republic of Rwanda and UNHCR (2003)     55
Islamic Republic of Iran, the Islamic Transitional State of Afghanistan and UNHCR (2003)     55
Republic of Rwanda, Republic of Uganda and UNHCR (2003)     55
Republic of Burundi, Republic of Rwanda and UNHCR (2005)     56
Republic of Sudan, Democratic Republic of Congo and UNHCR (2006)     56
United Nations High Commissioner for Refugees (UNHCR)     56
EXCOM Conclusion No. 18 - Voluntary Repatriation (1980)     56
EXCOM Conclusion No. 40 - Voluntary Repatriation (1985)     57
EXCOM Conclusion No. 101 - Legal Safety Issues in the Context of Voluntary Repatriation of Refugees (2004)     58
UNHCR Inter-Office Memorandum No. 104/2001, UNHCR Field Office Memorandum No. 101/2001 - Voluntary Repatriation and the Right to Adequate Housing     61
Global Consultations on International Protection (2002)     71
UN Security Council     73
Resolution 237 - The Situation in the Middle East (1967)     73
Resolution 242 - Middle East (1967)     74
Resolution 361 - Cyprus (1974)     74
Resolution 674 - Kuwait (1990)     74
Resolution 687 - Kuwait (1991)     74
Resolution 752 - Yugoslavia (1992)     75
Resolution 787 - Bosnia and Herzegovina (1992)     76
Resolution 820 - Yugoslavia (1993)     76
Resolution 853 - Azerbaijan (1993)     76
Resolution 876 - Georgia (1993)     76
Resolution 947 - Croatia (1994)     76
Resolution 971 - Georgia/Abkhazia (1995)     76
Resolution 999 - Tajikistan (1995)     77
Resolution 1009 - Croatia (1995)     77
Resolution 1019 - Croatia (1995)     77
Resolution 1036 - Georgia/Abkhazia (1996)     77
Resolution 1079 - Croatia (1996)     78
Resolution 1088 - Bosnia and Herzegovina (1996)      78
Resolution 1120 - Croatia (1997)     78
Resolution 1145 - Croatia (1997)     79
Resolution 1199 - Kosovo (1998)     79
Resolution 1244 - Kosovo (1999)     80
Resolution 1287 - Abkhazia and the Republic of Georgia (2000)     80
Resolution 1339 - Georgia (2001)     81
Resolution 1357 - Bosnia and Herzegovina (2001)     81
Resolution 1364 - Georgia (2001)     81
Resolution 1393 - Georgia (2002)     82
Resolution 1427 - Georgia (2002)     82
Resolution 1462 - Georgia (2003)     82
Resolution 1491 - Bosnia and Herzegovina (2003)     83
Resolution 1494 - Georgia (2003)     83
Resolution 1524 - Georgia (2004)     84
Resolution 1545 - Burundi (2004)     84
Resolution 1551 - Bosnia and Herzegovina (2004)     85
Resolution 1556 - Sudan (2004)     85
Resolution 1575 - Bosnia and Herzegovina (2004)     85
Resolution 1582 - Georgia (2005)     85
Resolution 1615 - Georgia (2005)     86
UN General Assembly     87
Resolution 8 - Question of Refugees (1946)     87
Resolution 194 - United Nations Conciliation Commission for Palestine, Protection and a Durable Solution for Palestinian Refugees (1948)      87
Resolution 894 - Palestine: Progress Report of the United Nations Conciliation Commission for Palestine; Repatriation or Resettlement of Palestine Refugees and Payment of Compensation Due to Them (1950)     89
Resolution 428 - Statute of the Office of the United Nations High Commissioner for Refugees (1950)     89
Addendum to Definition of a "Refugee" under Paragraph 11 of the General Assembly Resolution (11 December 1948) (1951)     89
Resolution 1388-Report of the United-Nations High Commissioner for Refugees (1959)     91
Resolution 1390 - World Refugee Year (1959)     91
Resolution 1672 - Refugees from Algeria in Morocco and Tunisia (1961)     91
Resolution 3212 - Question of Cyprus (1974)     92
Resolution 3236 - Question of Palestine (1974)     92
Resolution 35/124 - International Cooperation to Avert New Flows of Refugees (1980)     92
Resolution 36/146 - United Nations Relief and Works Agency for Palestine Refugees in the Near East (1981)     92
Resolution 36/148 - International Co-Operation to Avert New Flows of Refugees (1981)     93
Resolution 37/120 - United Nations Relief and Works Agency for Palestine Refugees in the Near East (1982)     95
Resolution 40/165 - United Nations Relief and Works Agency for Palestine Refugees in the Near East (1985)     95
Resolution 48/117 - International Conference on Central American Refugees (1993)     96
Resolution 48/118 - Assistance to Refugees, Returnees and Displaced Persons in Africa (1993)     96
Resolution 48/152 - Situation of Human Rights in Afghanistan (1993)     97
Resolution 49/23 - Emergency International Assistance for a Solution to the Problem of Refugees, the Restoration of Total Peace, Reconstruction and Socio-Economic Development in War-Stricken Rwanda (1994)     98
Resolution 49/43 - The Situation in the Occupied Territories of Croatia (1994)     98
Resolution 49/196 - Situation of Human Rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro) (1995)     98
Resolution 50/182 - Human Rights and Mass Exoduses (1995)     99
Resolution 51/114 - Situation of Human Rights in Rwanda (1996)     99
Resolution 51/126 - Persons Displaced as a Result of the June 1967 and Subsequent Hostilities (1996)     99
Resolution 55/153 - Nationality of Natural Persons in Relation to the Succession of States (2000)     100
Resolution 59/117 - Assistance to Palestine Refugees (2004)     100
Resolution 59/170 - Office of the United Nations High Commissioner for Refugees (2004)     100
Resolution 59/172 - Assistance to Refugees, Returnees and Displaced Persons in Africa (2004)     101
Resolution - 60/100 - Assistance to Palestinian Refugees (2005)     101
Resolution 60/101 - Persons Displaced as a Result of the June 1967 and Subsequent Hostilities (2005)     102
Resolution 60/103 - Palestine Refugees' Properties and Their Revenues (2005)     102
Resolution 60/147 - 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 (2005)     103
Resolution 60/183 - Permanent Sovereignty of the Palestinian People in the Occupied Palestinian Territory, Including East Jerusalem, and of the Arab Population in the Occupied Syrian Golan over Their Natural Resources (2005)     104
UN Commission on Human Rights     105
Resolution 1993/77 - Forced Evictions (1993)     105
Resolution 1997/29 - The Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms (1997)     107
The Guiding Principles on Internal Displacement (1998)     107
Resolution 1999/33 - The Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms (1999)     108
Report of the Independent Expert on the Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms, Mr. M. Cherif Bassiouni, Submitted Pursuant to Commission on Human Rights Resolution 1998/43 (1999) (Excerpts)     109
Resolution 2000/62 - Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (2000)     112
Resolution 2003/34 - The Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms (2003)     113
Resolution 2004/28 - Prohibition of Forced Evictions (2004)     114
Resolution 2004/34 - The Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms (2004)     115
Resolution 2004/55 - Internally Displaced Persons (2004)     116
Resolution 2005/46 - Internally Displaced Persons (2005)     117
UN Sub-Commission on the Protection and Promotion of Human Rights     117
Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms - Final Report Submitted by Mr. Theo van Boven, Special Rapporteur (1993) (Excerpts)     117
Resolution 1994/24 - The Right to Freedom of Movement (1994)     119
Resolution 1995/13 - The Right to Freedom of Movement (1995)     120
Resolution 1997/31 - The Right to Return (1997)     120
Resolution 1998/9 - Forced Evictions (1998)     120
Resolution 1998/26 - Housing and Property Restitution in the Context of the Return of Refugees and Internally Displaced Persons (1998)     122
The Return of Refugees' or Displaced Persons' Property - Working Paper Submitted by Mr. Paulo Sergio Pinheiro (2002)     123
Resolution 2002/7 - Housing and Property Restitution in the Context of Refugees and Other Displaced Persons (2002)     132
Resolution 2002/30 - The Right to Return of Refugees and Internally Displaced Persons (2002)     133
Housing and Property Restitution in the Context of the Return of Refugees and Internally Displaced Persons - Preliminary Report of the Special Rapporteur, Paulo Sergio Pinheiro (2003)     135
Housing and Property Restitution in the Context of the Return of Refugees and Internally Displaced Persons - Progress Report of the Special Rapporteur, Paulo Sergio Pinheiro (2004)     147
Resolution 2004/2 - Housing and Property Restitution (2004)     157
Housing and Property Restitution in the Context of the Return of Refugees and Internally Displaced Persons - Final Report of the Special Rapporteur, Paulo Sergio Pinheiro (2005)     158
Resolution 2005/21 - Housing and Property Restitution for Refugees and Displaced Persons (2005)     160
UN Human Rights Treaty Bodies     160
Committee on Economic, Social and Cultural Rights     160
General Comment 4 - The Right to Adequate Housing (1991)     160
General Comment 7 - Forced Evictions and the Right to Adequate Housing (1997)     164
Committee on the Elimination of Racial Discrimination     168
General Recommendation 22 - Article 5 and Refugees and Displaced Persons (1996)     168
General Recommendation 23 - Rights of Indigenous Peoples (1997)     168
Human Rights Committee     169
General Comment 16 - The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation (Art. 17)(1988)     169
General Comment 27 - Freedom of Movement (1999)     171
Additional Standards     174
The Cairo Declaration of Principles of International Law on Compensation to Refugees (1993)     174
The Practice of Forced Evictions: Comprehensive Human Rights Guidelines on Development-Based Displacement (1997)     176
Housing and Property Restitution Standards - Regional     181
Africa     181
OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1974)     181
Americas     181
American Convention on Human Rights (1969)     181
Cartagena Declaration on Refugees (1984)     182
Europe     182
European Convention for the Protection of Human Rights and Fundamental Freedoms (1950)     182
Middle East     183
The Cairo Declaration on Human Rights in Islam (1990)     183
Declaration on the Protection of Refugees and Displaced Persons in the Arab World (1992)     184
Arab Charter on Human Rights (1994)     186
Housing and Property Restitution Laws and Standards - National     187
Afghanistan     187
Decree on Dignified Return of Refugees (2001)     187
Decree 89 of the Head of the Transitional Islamic State of Afghanistan, Regarding the Creation of a Special Property Disputes Resolution Court (2003)     188
Albania     189
Law No. 9235 on Restitution and Compensation of Property (2004)     189
Armenia     197
On the Legal and Socio-economic Guarantees for the Persons Who Had Been Forcibly Displaced from the Republic of Azerbaijan in 1988-1992 and Have Acquired the Citizenship of the Republic of Armenia (2000)     197
Azerbaijan     197
Law on the Social Protection of Internally Displaced Persons and Persons with Equal Status (1999)     197
Bosnia-Herzegovina     198
Law on the Cessation of Application of the Law on the Use of Abandoned Property (Republika Srpska) (1996)     198
PIC Sintra Declaration (1997)     204
Office of the High Commissioner, Federation Forum, Chairman's Conclusions (1997)     205
Law on Implementation of the Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees (Republika Srpska) (1999)     206
Law on Implementation of the Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees (Federation BiH) (1999)     209
Property Law Implementation Plan (PLIP) Inter-Agency Framework Document (2000)     212
A New Strategic Direction: Proposed Ways Ahead for Property Law Implementation in a Time of Decreasing IC [International Community] Resources (2002)     222
PLIP Municipal Guidelines for Substantial Completion of Property Law Implementation (2003)     229
Law on the Cessation of the Application of the Law on Temporary Abandoned Real Property Owned by Citizens (Federation BiH) (2003)     230
Law on the Cessation of the Application of the Law on Abandoned Apartments (Federation BiH) (2003)     237
Law on the Cessation of Application of the Law on the Use of Abandoned Property (Republika Srpska) (2003)     247
Law on Implementation of the Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees (Federation of BiH) (2003)     263
Law on Implementation of the Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees (Republika Srpska) (2003)     266
Commission for Real Property Claims of Displaced Persons and Refugees - Book of Regulations on Confirmation of Occupancy Rights of Displaced Persons and Refugees (2003)     269
Commission for Real Property Claims of Displaced Persons and Refugees - Book of Regulations on the Conditions and Decision Making Procedure for Claims for Return of Real Property of Displaced Persons and Refugees (2003)     277
Bulgaria     288
Restitution of Nationalised Real Property Act (1992)     288
Decree No. 60 on Applying Article 1, Paragraph 2 of the Restitution of Nationalised Real Property Act (1992)     290
Colombia     291
Decree No. 2007 (2001)     291
Estonia     294
Republic of Estonia Principles of Ownership Reform Act (1991)     294
Georgia     306
Law of the Republic of Georgia Concerning Internally Displaced People (1996)     306
Law of Georgia on Property Restitution and Compensation on the Territory of Georgia for the Victims of Conflict in Former South Ossetia District (2006, Draft)     306
Germany     317
Joint Declaration by the Governments of the Federal Republic of Germany and the German Democratic Republic on the Settlement of Unresolved Property Issues (1990)     317
Iraq     318
Coalition Provisional Authority Order Number 6 - Eviction of Persons Illegally Occupying Public Buildings (2003)     318
Coalition Provisional Authority Regulation Number 4 - Establishment of the Iraqi Property Reconciliation Facility (2004)     319
Coalition Provisional Authority Regulation Number 12 - Iraqi Property Claims Commission (2004)     320
Statute of the Commission for the Resolution of Real Property Disputes (2006)     334
Kosovo     340
UNMIK Regulation 1999/10 on the Repeal of Discriminatory Legislation Affecting Housing and Rights in Property (1999)     340
UNMIK Regulation 1999/23 on the Establishment of the Housing and Property Directorate and the Housing and Property Claims Commission (1999)     341
UNMIK Regulation 2000/60 on Residential Property Claims and the Rules of Procedure and Evidence of the Housing and Property Directorate and the Housing and Property Claims Commission (2000)     342
Romania     353
Law No. 112 Regulating the Legal Status of Certain Residential Property (1995)     353
Rwanda     354
Ministerial Order No. 01 - Regarding the Temporary Management of Land Property (1996)     354
South Africa     355
Restitution of Land Rights Act 22 (1994)     355
South Africa Constitution (1996)     356
Tajikistan     357
The Law of the Republic of Tajikistan on Forced Migrants (1994)     357
Resolution No. 542 - Additional Measures Facilitating the Return of Refugees-Citizens of the Republic of Tajikistan and Forced Migrants to the Places of Permanent Residence and Their Social and Legal Protection (1995)      358
Housing and Property Restitution Case Law     359
Permanent International Court of Justice     359
The Factory at Chorzow (Indemnity) Case (1928)     359
International Court of Justice     361
Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004)     361
Human Rights Committee     362
Simunek, Hastings, Tuzilova and Prochazka v. The Czech Republic (1995)     362
Dr. Karel Des Fours Walderode v. The Czech Republic (1996)     369
Josef Frank Adam v. The Czech Republic (1996)     373
Ms. Eliska Fabryova v. The Czech Republic (1997)     378
Robert Brok v. The Czech Republic (2001)     380
Miroslav Blazek, George A. Hartman and George Krizek v. The Czech Republic (2001)     384
European Court of Human Rights     388
Sporrong and Lonnroth v. Sweden (1982)     388
Lithgow and Others v. United Kingdom (1986)     394
Papamichalopoulos and Others v. Greece (1993)     407
Loizidou v. Turkey (1996) and Damages (1998)     412
Zubani v. Italy (1996)     423
Akdivar and Others v. Turkey (1996) and Damages (1998)     427
Guillemin v. France (1997)     434
Brumarescu v. Romania (1999)     437
Bilgin v. Turkey (2000)     441
Zwierzynski v. Poland (2001)     443
Cyprus v. Turkey (2001)     448
Dulas v. Turkey (2001)     458
Orhan v. Turkey (2002)     461
Zvolsky and Zvolska v. The Czech Republic (2003)     461
Jasiuniene v. Lithuania (2003)     466
Pincova and Pinc v. The Czech Republic (2003)     469
Wittek v. Germany (2003)     477
Jantner v. Slovakia (2003)     483
Valova, Slezak and Slezak v. Slovakia (2004)     486
Broniowski v. Poland (2004)     489
Dogan and Others v. Turkey (2004)     508
Strain and Others v. Romania (2005)     518
Xenides-Arestis v. Turkey (2006)     524
Blecic v. Croatia (2006)     529
Useful Resources on Housing and Property Restitution     537
General Resources     537
Country/Regional Resources     539
Useful Web Sites     545
Index     547

Customer Reviews

Most Helpful Customer Reviews

See All Customer Reviews