ACTION MEMORANDUM
TO: The Next Secretary of State
FROM: Rhodri C. Williams
DATE: January 20, 2009
SUBJECT: Stabilizing Iraq by Ending Displacement
The recent news from Iraq has been mostly good. Violence is down significantly, sectarian militias are giving ground to Iraqi security forces, and we see signs of a political process that could foster reconciliation, deliver basic services and pave the way for an orderly U.S. withdrawal. However, one major threat to Iraq’s hard-won stability has yet to be fully acknowledged, let alone addressed: the problem of displacement.
While the ethnic cleansing that raged in the wake of the February 2006 Al-Askeri bombing in Samarra has slowed considerably, nearly five million people—about one in six Iraqis—remain displaced. Despite an improved security situation, much of this population cannot return to homes that have, in many cases, been destroyed or remain occupied by others. Steps to restore these homes or compensate owners for their loss should be a priority for the Iraqi government and its allies. Washington can make a real difference, and it needs to.
The fate of Iraq’s displaced will not only be one of the first tests of the emerging post-Ba‘athi political order; it may, like the fate of Palestinians displaced in 1948, come to be a decisive factor for the stability of the region. For some two million Iraqis who sought safety abroad as refugees, and nearly three million “internally displaced persons” within Iraq, months of displacement are turning into years, financial savings are running dry and desperation is increasing. Without help this population risks slipping into long-term dependency, straining the resources of hosts both inside and outside Iraq, and inviting political radicalization.
There are some positive signs: Prime Minister Nouri Al-Maliki has welcomed refugees back from abroad, and his fledgling Ministry of Displacement and Migration has adopted a national policy on internally displaced persons. However, the crux of the problem remains the inability of the displaced to return to their former homes or restart their lives elsewhere with government aid. The sporadic Iraqi government efforts to date to enforce rules against squatting have not succeeded, primarily because of their poorly coordinated ad hoc nature. The Iraqi government needs support to coordinate its policy properly.
The most obvious solution to the problem is legal restitution for those whose homes are occupied by others, accompanied by compensation for those whose property has been destroyed. However, restitution would require evicting the occupants of claimed properties, and many of these squatters may either be armed or displaced with nowhere else to go. Faced with these complications, some observers have advocated simply resettling the displaced elsewhere in Iraq through large-scale housing construction or voucher programs. To be sure, the housing issue must be addressed: a shortage dating from before 2003 will only grow more severe as return movements start. However, housing construction and housing restitution should be seen as complementary rather than contradictory policies. Abandoning efforts to facilitate return and restitution is not only unfair to the displaced, but may undermine the country’s progress toward communal reconciliation.
We should continue to acknowledge the rights of the displaced to return to their homes and to reclaim, at least, the value of lost assets—whatever difficulties may be involved. The U.S. government has not shied away from these principles in the past; indeed, it has often championed restitution as an affirmation of the duty of governments to provide legal security to their citizens. Since the end of the Cold War, support for restitution processes in Eastern Europe has been a tenet of U.S. foreign policy, despite the fact that the communist expropriations many of these programs sought to reverse were distant in time and rarely accompanied by atrocities comparable to those of Iraq’s post-2006 sectarian cleansings.1 The U.S. government also played a key role in efforts to implement the Dayton Peace Agreement in Bosnia, which achieved the restitution of some 200,000 claimed properties and the return of as many as half of the two million displaced during that country’s brutal 1992–95 conflict.
Based in part on these precedents, the U.S.-led Coalition Provisional Authority in Iraq prepared the ground for today’s Commission for the Resolution of Real Property Disputes (CRRPD), a body that is quietly processing some 130,000 claims laid by more than a million people displaced in Iraq prior to 2003 by Ba‘athi persecution. However, the CRRPD has neither the mandate nor the capacity to deal with post-2003 property dispossession. Indeed, it is unclear whether any existing Iraqi institution can handle this extraordinary caseload, which by some estimates may rise to encompass as many as 650,000 claims. Nevertheless, several factors converge to show that meeting this challenge in Iraq, as it was met in Bosnia, is not only possible; it may be pivotal in stabilizing the country.
Popular support. In a March 2008 survey, the overwhelming majority of Iraqis polled rejected the separation of populations along sectarian lines and supported the rights of displaced persons to reclaim their homes from squatters.2 At the local level, those who have remained in contested areas often welcome their displaced neighbors back across sectarian lines and view the outsiders occupying their homes as opportunists, or even criminals. In several Baghdad neighborhoods, local officials have begun to inventory abandoned properties, in the process often convincing squatters to leave and encouraging the return of displaced former residents. Revivals of social networks have facilitated return movements in other contexts, such as Bosnia, and they can be exploited in Iraq, where, according to the findings of the International Organization for Migration, 61 percent of internally displaced persons still intend to return to their place of origin.3 Evidence that the emigration resulting from post-2006 sectarian cleansing was not the primary factor in the current decline in violence supports the inference that further returns, if handled well, would not spark new unrest and, indeed, may help avert it. Finally, a credible restitution program would also provide better options to those who do not wish to return, allowing them to receive full value for their pre-displacement assets and reducing their dependence on government handouts.
Domestic political incentives. To date, the government of Iraq has been reluctant to acknowledge the full extent of displacement and dispossession, since this would underscore its past failures to protect its citizens. However, as in the case of the CRRPD, where Shi‘a and Kurdish grievances translate into political support for the reversal of Ba‘ath-era property confiscations, significant incentives exist for the Iraqi political class to address more recent ethnic cleansing as well. Perhaps the most important incentive may be the desire of mainstream political parties to undermine the remaining sectarian militias and bring the largely Sunni “Awakening” movement under the control of more formal institutions.
Both the militias and the Sunni Awakening are reported to have used their control over abandoned housing in contested and cleansed neighborhoods as a source of patronage power, legitimacy and income. A credible government commitment to large-scale restitution would not only end these patterns but would allow established parties to be seen as delivering law and order in the run-up to forthcoming provincial elections. As with natural disasters, the Iraqi government may not be strictly liable for remedying all post-2003 displacement, but it bears a moral obligation to assist citizens in dire need, and it may face a high political price for failing to do so.
Resources. Iraq has the potential to bankroll a comprehensive response to displacement involving not only restitution and compensation but also construction of new homes for those who do not wish to return to their former homes, or who simply have no other options in light of Iraq’s long-standing housing shortage. However, significant oil revenues alone aren’t enough. Iraq lacks qualified personnel in the relevant ministries, which has hindered domestic reconstruction efforts to date. Ironically, a large part of Iraq’s current capacity gap can be chalked up to displacement, as middle-class professionals who were often targeted for kidnappings had the means to flee. As a result, efforts to encourage the return of displaced professionals may be an important means of creating the conditions for broader solutions to displacement.
Resilient legal institutions. Unbeknownst to most of the outside world, virtually all private law matters in Iraq are handled according to the provisions of a half-century old civil law code. This Civil Code is treated with a reverence similar to that accorded to the U.S. Constitution, and it has contributed to the creation of a common legal culture among Iraq’s various ethnic and sectarian groups. It sustained public confidence in the judiciary throughout the Ba‘athi period and the more recent unrest. The Civil Code forbids many of the acts of dispossession perpetrated against Iraqis displaced since 2003, providing a legal basis for them to achieve restitution or compensation for their homes and lands. Although Iraq’s judiciary on its own lacks the capacity to process a sudden proliferation of claims, it can and should be involved in efforts to craft a restitution mechanism that proceeds from established principles of Iraqi law.
International interests. Both Western and Arab states should help Iraq resolve its displacement crisis on both humanitarian grounds and on grounds of national interest. Most obviously, restitution will serve the interests of countries hosting large refugee populations. They will be able to begin repatriating them without the fear that they will simply be dumped into protracted internal displacement, potentially stoking new unrest and triggering new waves of refugees. States in the region that host few Iraqi refugees but possess means to assist them have an interest in restitution, too. If nearly five million aggrieved and impoverished Iraqis are simply left to their own devices in a region already rife with conflict and extremism, no one stands to benefit.
International actors have already begun work on the issue, and some initial problems have been identified. For example, contact between Iraqi government officials and civil society representatives at a meeting hosted last July by the U.S. Institute of Peace and the World Bank led to an agreement that we need more information on the number of properties affected and their current legal status. Many, possibly most, of the displaced were expelled from apartments rather than private houses. Although such tenants had strong rights and should be compensated for their losses, full restitution may be impossible without a significant intervention in Iraq’s tenancy laws. The compilation of such information should be seen as part of a broader effort to move forward quickly on restitution, rather than a precondition for it. More than enough is already known to justify and to structure an attempt to end displacement in Iraq. The United States can play a decisive role in this effort, just as it did in Eastern Europe and Bosnia:
The United States should rally international support for addressing the displacement of Iraqis, and it should publicly back solutions that uphold the rights of those affected. To encourage current positive trends, the Secretary of State, the UN Ambassador, and embassies in the region should publicly support restitution of the homes and property of the displaced wherever possible (and just compensation wherever it is not) as a basic tenet of U.S. policy in Iraq.
In order to avoid delay and promote the development of Iraqi solutions to Iraqi problems, the U.S. government should support efforts currently underway to develop a domestic framework for restitution, compensation and housing assistance for the displaced. As discussed, the Iraqis already have resources, a dedicated Ministry and domestic legal expertise for these tasks. However, they stand to benefit from capacity building and comparative international experience, both of which could be provided directly, in the form of seminars and trainings, and indirectly, through U.S. support of the UN Assistance Mission for Iraq in carrying out its mandate to facilitate “the safe, orderly, and voluntary return . . . of refugees and displaced persons.”
The aforementioned U.S. support should be structured so as to encourage a move away from ad hoc initiatives and toward greater consistency and clarity in handling property claims. The willingness expressed by representatives of Iraq’s judiciary to encourage ongoing local mediation of property disputes is a particularly promising development that could build greater legal certainty into the most demonstrably viable restitution efforts in Iraq to date. More broadly, restitution efforts should be integrated with related post-conflict and development programming—such as reparations for victims of serious human rights abuses or housing construction—in order to avoid duplication of efforts.
If the Iraqi authorities fulfill their commitments to address displacement through rights-based means like restitution, they will not only have demonstrated their ability to protect the most vulnerable of their citizens; they will also have laid the groundwork for a viable political process that will not be marred for generations by lingering disputes and grievances. Such an effort deserves our full support.
1.
Note U.S. Department of State, Bureau of European and Eurasian Affairs, “Property Restitution in Central and Eastern Europe” (October 3, 2007).
2.
Survey conducted for ABC News, the BBC, ARD and NHK by D3 Systems of Vienna, Virginia, and KA Research Ltd. of Istanbul, Turkey.
3.
International Organization for Migration (IOM), “Iraq Displacement and Return: 2008 Mid-Year Review” (July 2008).