By Mary Fitzgerald and Tarek Megerisi
The question of housing, land and property rights is so difficult—and so important—because it touches on the fundamental question facing post-2011 Libya: what do Libyans want the new Libya to look like?
This paper will examine both the history and the current impact of Qaddafi’s redistribution laws. In addition, we will ask what we can learn from the failed efforts to resolve these property conflicts since 2011.
II. THE QUESTION OF PROPERTY AFTER THE 2011 UPRISING AND THE CHALLENGE OF REFORM
“I really hate when people say that we should take some lessons from the ex-Communist countries to see how they fixed their problem of confiscated property. I studied how this issue affected Eastern Europe country by country—they did not have a Muslim/Bedouin/tribal community like ours in Libya where people can kill each other over a tiny piece of land or a car and that [to retake what has been taken from them by force] is completely justified by our religion.” Property rights activist in Tripoli, February 2015
Anger at Qaddafi’s confiscation of property helped fuel the uprising against him, and in the immediate aftermath of the revolution property rights were one of the first grievances to surface. Several prominent revolutionaries, both from within the armed factions as well as the interim National Transitional Council (NTC) which was recognised internationally as the legitimate authority from March 2011, came from families who had lost property and land. These included members of the diaspora who returned during the uprising.
The NTC drew up a constitutional declaration that declared property rights inviolable and guaranteed owners the right to dispose of their property within the limits of the law. This declaration, issued in August 2011, was designed to serve as the temporary basic law in Libya until a full constitution was ratified.
A constitutional assembly was elected by a national ballot in February 2014 and is expected to produce a draft constitution for referendum in 2015. Many Libyans believe—and expect—that the new constitution should refer explicitly to the sanctity of private ownership as the basis for a new framework for property rights.
A preliminary draft of the new constitution, published for public review and consideration in December 2014, made several references to property. Chapter Six of the draft, which relates to rights and liberties, included the following article:
1. Private property shall be inviolable.
2. Commitment to utilisation of private property shall be in accordance with the requirements of public interest.
3. Private property may be utilised whenever necessary in return for a fair compensation paid in full.
4. Private property may be expropriated for public benefit [in return for] fair and advance compensation.
5. General confiscation of properties shall be prohibited.
6. Imposition of custodianship shall be prohibited unless by an agreement or order by the competent judge.” 19
In another part of the preliminary draft, in a chapter headed ‘Transitional Measures Roadmap’, the following was included in a section on the right to compensation:
“The State shall also be committed to:
Guaranteeing the rights of persons whose property or movable assets have been illegally taken away. In the case of property, the elements that should be taken into account are the rights of the original owner, the financial position of the person who has illegally taken the property, the constructions added to the property and the previous administrative and judicial procedures.” 20
“Qaddafi’s property laws sowed seeds of hate and resentment. People are very bitter about these laws and this will complicate reconciliation efforts. Mass restitution is impossible and I think mass compensation could lead to all kinds of corruption. There are no easy ways of tackling this issue.” Property owner in Tripoli, February 2015
The NTC, in existence until August 2012, was aware of the high emotions surrounding the question of confiscated property. NTC officials, included chairman Mustafa Abdeljalil, who as Qaddafi’s former justice minister was familiar with the legal complexities, publicly urged patience on property issues.
But the transitional authorities were often reminded that any such efforts could easily be overtaken by developments on the ground, where armed elements are willing to take the law into their own hands. Disputes over property were a major contributing factor to the instability of the post-revolutionary period.
Following the overthrow of Qaddafi and Libya’s formal declaration of ‘liberation’ in October 2011, the number of violent confrontations over disputed property immediately began to grow. In Tripoli and Benghazi, former owners laid claim to properties by writing on the walls that they were the rightful owners. Others used threats and violence to evict current occupants.
“How did I get my property back? How does anyone get anything done in the new Libya? I arranged for some men with guns to do it for me.” Property owner in Tripoli, September 2014
Revolutionary armed groups and political factions also took over land and property to use as camps or offices, adding a further layer of complexity to an already tangled trail of claims to ownership. Many of those properties are still retained by armed groups and remain an additional source of grievance.
In Benghazi, which experienced a construction boom after the uprising, some individuals perceived to have the tacit backing of local militias took control of disputed land and built houses or businesses on it.
A number of post-revolutionary killings were anecdotally ascribed to disagreements over property. Social tensions were exacerbated by post-revolutionary migration into Libya’s main urban centres, much of it related to localised conflicts that erupted during and after 2011.
One of these conflicts emerged in Tawergha, whose residents were driven from their town by Misratan fighters in the latter months of the uprising. The Misratans were driven by revenge. They accused Tawerghans of various crimes while fighting with Qaddafi’s forces in Misrata.
Tawerghans are now dispersed throughout Libya, with some 30,000 living in IDP camps and private accommodation in Tripoli and Benghazi. The Tawergha issue is one of the biggest challenges to reconciliation. Efforts to resolve it have so far proved fruitless in the absence of a proper transitional justice and reconciliation framework.
“You might get a court order to reclaim a property after much effort but who will implement it? There is no one to enforce the law” Owner of high-value properties in central Tripoli, October 2014
Libya’s justice sector, already flawed under Gaddafi, has found itself severely constrained since 2011. 21 Efforts to reconstruct the army and police have made little progress, leaving the state without a monopoly on the legitimate use of force.
This has allowed the armed groups that proliferated during and after the uprising to operate with complete impunity. In many cases, they have threatened and cowed those working in the justice sector. Judges and lawyers have been assassinated, particularly in the East. All this has allowed armed groups and individuals to take justice into their own hands.
Thanks to a fragmented security sector and a barely functioning justice system, the task of arbitrating property-related disputes and ensuring they did not become violent fell largely on informal actors, particularly in rural areas. These included tribal and other community elders, reconciliation committees, militia leaders and religious figures.
Such disputes often proved very difficult to resolve, given that many were anchored in social and political cleavages that dated back to the Qaddafi era and in some cases before it. These localised conflict resolution initiatives, while laudable, were naturally limited without credible state laws and institutions to back them up. 22 Civil society organisations were crucial in lobbying for such a legislative framework.
The post-revolutionary period saw a flourishing of civil society groups. While some played an active role in Libya’s democratic transition, often acting as intermediaries between officialdom and citizens, the concept of civil society remains weak. Organisations that criticise armed groups have been threatened and a growing number of activists assassinated. 23
While campaigners for property rights proved more effective in negotiating with Libya’s new centres of power than many other civil society groups, they have not yet made any firm progress.
The Association of the Owners Harmed by the Ruling of the Tyrant (Rabitat al-Mulak al-Mutadarariyn min Hukm al-Taghyat, known as the Rabitat), set up by Libyans whose families had their properties confiscated by Qaddafi, was the largest of the groups focusing specifically on property rights.
Several of its members were from the returned diaspora. Libyans with dual citizenship who returned after the revolution were often labelled pejoratively as “double shafras [a pun meaning double SIM cards]” and viewed with suspicion or resentment by those who had lived through the Qaddafi era.
While not all returned diaspora Libyans were well-off, many of those who stayed perceived them as such and this in turn affected the debate about property rights. “Those who want their properties back tend to be wealthier so while the issue was seen as important in relation to long-term economic stability, very often it was not considered so urgent compared with other challenges,” said one international observer. 24
Set up within months of Qaddafi’s demise, the Rabitat issued membership cards to its 8,000 core members (many of who represented extended families or tribes) and held public demonstrations in Tripoli and other cities. It also maintained a Facebook page to highlight individual cases. 25
“The main purpose of our organisation is to raise the voice of the victims of Qaddafi’s property laws and to change the unjust laws of property confiscation and restitution which are still functional till now,” said Ahmed Traina, who sits on the Rabitat board. 26
“We try to establish contact between our members and policy makers, law makers, other NGOs and the media to explain these issues and to try together toout how to find the proper solutions.” The Rabitat lobbied first the NTC’s Abdeljalil, then the first interim prime minister Abdurrahim el-Keeb and his successor Ali Zeidan.
Members also consulted government officials and members of the general national congress formed after Libya’s first post-Qaddafi elections in July 2012. The Rabitat eventually worked with the congress’s legislative committee in drafting a bill that sought to address the issue. They also tried to retrieve and archive ownership documents, at one point finding a trawl of such papers in a rubbish dump. “We cleaned and organized the files and kept them in a safe place,”
said Traina, explaining that Rabitat had resisted requests to hand over the files, as they did not trust officials with their safekeeping. The scale of the challenge of drafting a law soon became apparent. International organisations, including the UN, expressed concerns that a comprehensive restitution process could risk creating a whole new layer of internally displaced people, not to mention fuelling fresh resentments.
“If property is just given back to its rightful owners, a lot of people would lose their homes and land, including powerful politicians and militiamen. We are already close to civil war. This would make it much worse. In my view the best solution is a compensation programme.” Property owner in Tripoli, October 2014
to be continued
Above Photo: After the 2011 uprising, former owners laid claim to properties by writing on the walls that they were the rightful owners. (Photo courtesy of Valerie Stocker)
19- Constitution Drafting Assembly,“Rights and Liberties,” Libya—Initial Draft Constitution 2014, December 2014,unofficial English translation provided by UNSMIL and International IDEA available online: http://www.constitutionnet.org/files/c6_-_rights_and_liberties_draft_work_-_eng.pdf
20- Constitution Drafting Assembly, “Transitional Measures Roadmap,” Libya—Initial Draft Constitution 2014, unofficial English translation available online: http://www.constitutionnet.org/files/c6__transitional_measures_roadmap_draft_work_eng.pdf
21- Read more about Libya’s justice sector here: International Legal Assistance Consortium (ILAC), ILAC Rule of Law Assessment Report: Libya 2013, 9 May 2013, available online: http://www.ilacnet.org/blog/2013/05/09/ilac-assessment-report-libya-2013
22- For more on the “notables” or hukama, see: International Crisis Group (ICG), Divided We Stand: Libya’s Enduring Conflicts, 14 September 2012, available online: http://www.crisisgroup.org/media/Files/Middle%20East%20North20Africa/North%20Africa/libya/130-divided-we-stand-libyas-enduring-conflicts.pdf
23- See, for example: United Nations Support Mission in Libya (UNSMIL) and Office of the United Nations High Commissioner for Human Rights (OHCHR), Human Rights Defenders Under Attack, 25 March 2015, available online: http://www.ohchr.org/Documents/Countries/LY/HumanRightsDefendersLibya.pdf
24- Fitzgerald interview, October 2014.
25- “Libya’s Confiscated Properties”, Facebook page: https://www.facebook.com/pages/%D9%82%D8%A7%D8%A6%D9%85%D8%A9-%D8%A7%D9%84%D8%A7%D9%85%D9%84%D8%A7%D9%83-%D8%A7%D9%84%D9%85%D8%BA%D8%AA%D8%B5%D8%A8%D8%A9-%D9%81%D9%8A%D9%84%D9%8A%D8%A8%D9%8A%D8%A7-Libyas-Confiscated-Properties/351816068264174
26- Fitzgerald interview, October 2014.
Mary Fitzgerald is a journalist and analyst specialising in post-Qaddafi Libya. She has reported from Libya since February 2011 for media including the Economist, the BBC, Foreign Policy, The New Yorker, the Financial Times and the Guardian. She lived in Libya throughout 2014. She is a contributing author to The Libyan Revolution and Its Aftermath published by Hurst/Oxford University Press.
Tarek Megerisi is a political analyst and consultant specialising in Libya and the wider Middle East. He has worked closely in an advisory capacity on Libya’s post-revolutionary transition with Libyan political bodies and international organisations. Currently based in London, he has contributed commentaries on Libya to the Carnegie Endowment’s SADA centre, Italy’s Limes magazine, Muftah magazine, and the Fair Observer among others.
Rhodri C. Williams is the Rule of Law Program Manager for the International Legal Assistance Consortium (ILAC). Based in Stockholm, Williams coordinates a large, integrated set of rule of law programs supporting partners in seven countries of the Middle East and North Africa region. Prior to working for ILAC, he worked for ten years as a consultant on humanitarian, human rights, rule of law and transitional justice issues in fragile and post-conflict settings such as Bosnia, Cambodia, Colombia, Cyprus, Georgia, Kosovo, Lebanon, Liberia, Libya, Serbia and Turkey.
Peter van der Auweraert works as Head of the Land, Property and Reparations Division at the International Organization for Migration (IOM) in Geneva, Switzerland. He has worked on rule of law, post-crisis land and victims’ reparations issues in a number of countries and was part of a small UN-team engaged in mediation on land and property issues among local political actors in Kirkuk, Iraq. Prior to joining IOM, Peter Van der Auweraert was Executive Director of Avocats Sans Frontières (ASF).