A Long Time Gone: Post‐conflict Rural Property Restitution under Customary Law

Abstract

Mass displacement of people due to violence poses a unique set of challenges for property restitution when people return to their homes after a long absence. This is particularly evident in rural areas where the dominant form of land holding is customary tenure. Violence-induced displacement, unlike voluntary migration, challenges both customary and public legaladministrative structures. The lack of written documentation of customary holdings and the importance of the support of community leaders means that incorporating returnees back into a community can be easier for those who choose to return, while reclaiming property without physical return is nearly impossible. This article seeks to make three contributions: 1) to note the diversity of return processes after long displacements in terms of timing and demographics; 2) to demonstrate that the nature of the claims people can make on customary tenure systems is at odds with international legal norms on property restitution after displacement; and 3) to introduce a set of observations and questions on how conflict can change customary law. The article is based on fieldwork conducted in Uganda, Liberia and Timor-Leste, all countries with extended displacement where most of the rural land is held via customary claims.

Possession and Precedence: Juxtaposing Customary and Legal Events to Establish Land Authority

“…Although statutory law is sometimes considered more rigid than customary systems, Western concepts of "first" possession and occupation are also malleable. As we have noted elsewhere, the post-conflict land claim process is highly politicized, contingent on authority, and subject to accrual and fading over time [66]. Major sociopolitical transitions are often moments where societies come to recognize new "establishment events," to which (later) land restitution processes may refer-for example, migration, colonizing settlement, or the onset of a new governance regime.…”

“…While we often think of establishment events as being in the past, events like first occupation or colonization. In this paper, we point out that establishment events can and do occur in the contemporary era, particularly in post-conflict settings in which new rules are made as to which land rights will be recognized [66]. Additionally, these concepts may be applicable to countries that may not have experienced war but are resetting their property systems because of changes in sovereignty, such as post-Soviet states shifting from socially owned to private property.…”

Improving local land governance? Exploring the linkages between land governance reforms, institutional pluralism and tenure security in Burundi

“…Often, emerging decision-making structures at various governance levels may reflect contested reconfigurations of power relations and polarised politics, and therefore display an amplification of previous situations of legal pluralism. Empirical observations suggest that under such conditions policy changes are susceptible to enhance contestations over which rules to enforce, especially when international frameworks for post-war resource allocation are strongly imposed on existing domestic land tenure systems (Joireman and Meitzner Yoder 2016;Unruh 2005). For instance, it is a challenging task for state actors to translate international legal standards on post-conflict property restitution from paper agreements into local settings where the reach or the authority of the state is contested or limited (Joireman and Meitzner Yoder 2016).…”

“…Empirical observations suggest that under such conditions policy changes are susceptible to enhance contestations over which rules to enforce, especially when international frameworks for post-war resource allocation are strongly imposed on existing domestic land tenure systems (Joireman and Meitzner Yoder 2016;Unruh 2005). For instance, it is a challenging task for state actors to translate international legal standards on post-conflict property restitution from paper agreements into local settings where the reach or the authority of the state is contested or limited (Joireman and Meitzner Yoder 2016). In a situation of legal pluralism, access to resources is always negotiable and uncertain, being the result of social and power relations (Berry 2009;Meinzen-Dick and Pradhan 2002).…”

Ethnic Violence, Local Security and Return Migration: Enclave communities in Kosovo

“…We would posit that those returning to Kosovo have employment options, perhaps because of better educational levels. Experiences in other contexts around the world, such as Colombia and Liberia, both of which had violent civil conflicts and massive forced migration, show that displaced people prefer to settle in urban areas when they return (Butman, ; Joireman and Meitzner Yoder, ; Deininger et al., ; Williams, ).

H2. Given low levels of return for the Serbian population displaced by the conflict and the limited economic opportunities in Kosovo, Serbs that do return to Kosovo will settle in urban areas.

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