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
III. POLICY RECOMMENDATIONS
The post-revolutionary moment when it was still possible to debate housing, land, and property rights has now given way in Libya to conflict and chaos. Simply put, there is no government with the capacity to either enact or enforce any laws in this regard.
This means that a whole new layer of complex grievances and widespread displacement will be added to the already toxic issue of property rights when the situation stabilises enough to begin seriously thinking about legal remedies. Because the problem will not go away, and will only get worse, it is vital to use this time to consider future resolution processes.
By providing some faith in the possibility of a solution, perhaps the debate about property rights could even become part of Libya’s recovery.
SHORT-TERM POLICY RECOMMENDATIONS
Despite the ongoing violence and political turmoil, some steps can now be made towards establishing the foundations for a future resolution process: through collecting and verifying claimants’ documentation, raising awareness, and establishing the principles of this future process.
Any effort must aim to satisfy all levels of aggrieved claimants, instead of prioritising any one set of the dispossessed over another.
1- Collecting Documentation
Attempts to collect factual evidence can continue and will prove vital in the future. This should build on the work done by Libyan organisations in previous attempts at a resolution. There are four sources of invaluable information regarding this process:
» » The Committee started by Saif al-Qadafi in 2006. Although poor in its implementation, it gathered a large amount of case work, copies of land titles, and other paper work associated with the mass of claims.
» » Libyan Institutions: The case files of the people’s courts starting in 1988, as well as the registration documents in the ‘Socialist Real Estate Registry’, could prove useful in tracking the changing title and character of properties over the years.
» » Claimants: Many families still retain their documentation from both the pre-1969 and pre-1978 eras. Because many dispossessed families refused to take part in Qaddafi’s amnesty, copying and verifying these documents could fill in important holes in the paperwork collated by the 2006 commission.
» » Libyan civil society organisations: Since the 2011 revolution a number of Libyan civil society organisations have been documenting claims related to property grievances. In some cases these claims are backed up by records retrieved from places including rubbish dumps. These claims could be cross-referenced with existing official documentation.
It is important to note here that all documents collected must be verified due to repeated claims of fraud that have blighted the two previous attempts at restitution enacted by the Qaddafi regime.
Libyan notaries are an important asset in this endeavour as they have worked largely unhindered from the 1970s to the present day drafting, notarising and documenting all manner of property-related contracts
2- Raising Awareness
Our research showed that there is little public awareness of the draft law written by the GNC and its implications. Since redressing property rights affects individuals and communities across current political divides, international agencies like the UN or civil society organisations could launch a campaign to increase public understanding of housing, land and property rights and provide information on the legal frameworks under consideration.
This campaign could also include nationwide public meetings which could be linked to future dialogue in which grievances could be aired and ideas shared. Furthermore, raising awareness about efforts to resolve this issue could yield further documentation.
3- Establishing Principles
The current constitutional drafting process offers an opportunity to highlight and reinforce the principles of personal property and more broadly human rights and the rule of law. The Constitutional Assembly enjoys broader legitimacy than any other institution and such discussions could foster trust in the wider political system.
The neutrality of the Assembly is an important asset. Libyans displaced by the 2011 revolution and those aggrieved by Gaddafi’s redistribution policies have not been working together, even though both groups share a common interest in clearly defining rights related to housing, land and property.
In fact, many recently displaced people are unwitting caught up in a cycle of revenge that began with Qaddafi’s reforms and any true attempt at justice will need to satisfy both claimants and occupants to avoid a repeat scenario in future.
It is not the role of a constitutional body to legislate for crimes of the past, but it can determine the principles that will underpin future rights and pave the way for legislation and resolution processes. Because it is still broadly perceived as politically neutral, the Constitutional Assembly could be a forum for discussions untainted by the power dynamics affecting the rest of the country.
But although constitutional principles can act as an umbrella for the rest of the process, Libyan actors should be wary of overly constrictive clauses sealed at the constitutional stage. Moreover, as a constitution is a social contract, those debating the issue should think about the wider relationship between land, the resources beneath it, and the people living above it.
MEDIUM TO LONG-TERM POLICY RECOMMENDATIONS
According to a lawyer interviewed in the UNHCR report, “the full restitution alone in Tripoli… could result in the need to evict and rehouse as many as three quarters of the city’s 2.2 million residents”. 45
Many properties, initially confiscated, were later bought in good faith by people who proceeded to make it their home and hence are entitled to various rights. Some land was divided into multiple buildings, or some villas into apartment complexes, all changes to the character of the land under claim and, by extension, any future restitution.
The multitude of perspectives, grievances, and interests which make up this issue suggests that Libya will need to explore other ways of addressing this issue, going beyond the simple return of original properties or financial compensation.
Resolution is likely to be a long, difficult process that will need to proceed alongside seemingly more pressing reforms
1- Dialogue Process
The sharia principle of ensuring social harmony could be a useful one for any resolution process. Hastily crafted legal remedies could trigger new violence due to the overlapping layers of grievances. A targeted dialogue process conducted across the nation, and incorporating owners, occupants and other stakeholders, could give Libya its best chance to tailor a solution that satisfies more people than it harms.
Once the current violence is over and a government is in place that most Libyans recognise, a high level statement from the State acknowledging the wrongs that were done could act as an opening for such a dialogue, as would a move by the State to accept all responsibility for addressing the confiscations of the past.
This dialogue could also include an international conference on housing, land and property rights to which representatives of all relevant entities would be invited, as well as experts who have worked on restitution mechanisms in other countries. Such a meeting could issue a declaration at the end, outlining key principles to be pursued in any eventual resolution process in Libya.
2- Establish a Purpose-Built Institution
Creating a central body composed of officials and specialists from various ministries and agencies would help streamline efforts to tackle the issue, as well as enabling any process to proceed smoothly without
hindering the day-to-day workings of the over-burdened judiciary and transitional authorities.
Given the poor quality of existing cataloguing systems, such an institution could oversee the claims registry, lodge and assess claims, and also house a computerised database of records. Furthermore, given the breadth of cases that cover family homes as well as agricultural, commercial and industrial property, a typology of common cases and specialisations could be useful in organising the process.
Officials could also benefit from research trips to other post-conflict and post-socialist states to learn from their experiences in addressing property restitution and compensation. Programmes to train the staff who will prepare and implement any resolution process will open up the process to more ideas.
45- UNHCR, Housing, Land and Property Issues,23.
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).