COHRE Information Bulletin 2 Return Restitution of IDP Children Sri Lanka 2007

Information Bulletin: Housing Rights The Right to Return and Restitution - Issue II: July 2007

The Right to Return and Restitution of Internally Displaced Children1 In Sri Lanka, approximately 650,000 persons are currently displaced due to conflict.2 It is estimated that over one third of these internally displaced persons (IDPs) are children.3 Most IDPs aim to return to their place of origin as soon as they consider it safe to do so, and with the recent capture of the East of Sri Lanka by the Government, many IDPs in those areas have started or will soon start to return home. In this context, it is important to clarify which housing and property restitution rights returning IDPs have and how the particular needs of returning internally displaced children should be taken into account.

According to the Pinheiro Principles on Housing and Property Restitution for Refugees and Displaced Persons (hereinafter the Pinheiro Principles)4, all IDPs have a right to have their housing and property restored to them. The right to restitution means in practice that the government needs to provide IDPs with the assistance they need to enable them to take up their lives again and live in the same or like manner as before displacement occurred. In most cases, housing and property restitution claims will consist of the claim to repossess the former home and to have necessary repair or rebuilding works done or be compensated for any damage, as well as to receive compensation for other lost property, such as furniture and tools.

The Pinheiro Principles also address the return and restitution process with regard to internally displaced children. They call on States to ensure non-discrimination between, inter alia, boys and girls in the return and restitution process.

Further, and perhaps most importantly in the context of internally displaced

It is imperative that the “government and agencies involved in return work are mindful of the restitution rights of displaced children, and especially of those orphaned by the conflict

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children, the Pinheiro Principles call for all restitution procedures, institutions and mechanisms to be age sensitive and to ‘reflect the overarching principle of the “best interests of the child”’. Hence children too have a right to property restitution under the Pinheiro Principles, and all agencies involved in restitution processes must make sure that their practices are sensitive of the special needs of children.

In practice, most children will not have a housing and property restitution claim independent of that of their parents. The house they lived in before displacement will be the owned or rented property of their parents, and the family as a whole has a right to return to the former home and to receive restitution for any losses associated with displacement.

The question is, however, how restitution of separated, unaccompanied and orphaned internally displaced children should best be addressed.

In the case of separated and unaccompanied children, who have lost contact with their parents or legal guardian due to displacement, but may be accompanied by an adult relative or community member, every effort must be made to reunite them with their families. As in the case described above, these children will not have an independent restitution claim, but the right to return to the family home that they previously lived in. To fulfil that right, authorities and other agencies dealing with housing and property restitution of IDPs must make sure that restitution procedures are accessible not only to adults, but also to children.

If children are given the possibility of voicing their claim to return home, the likelihood that a child’s claim can be matched with that of his or her parents,

1 Prepared by Hannah Neumeyer, Researcher, Centre on Housing Rights and Evictions 2 Figures from the Internal Displacement Monitoring Centre at (http://www.internal-displacement.org/ 8025708F004CE90B/(httpCountries)/0BB9CBD990450F5F802570A7004C148F?OpenDocument) 3 Sri Lanka: Escalation of conflict leaves tens of thousands of IDPs without protection and assistance, Internal Displacement Monitoring Centre and Norwegian Refugee Council, November 2006, p. 50 4 The Principles, though not legally binding on States, are based on well established premises of international human rights and humanitarian law. The aim of the Principles is to establish a good practice guide for housing and property restitution.

Housing Rights for Everyone, Everywhere

and thus the chances for reuniting the family, are increased.

In both situations described above, the housing and property restitution claim of internally displaced children is identical to that of their parents or legal guardian. However, for those internally displaced children who have been orphaned by the conflict, the question of how to deal with their right to housing and property restitution arises.

According to the Pinheiro Principles, these children have a right to housing and property restitution regardless of their age and/or gender, and special attention must be paid to the principle of the best interests of the child. This would suggest that the claim of the deceased parents is inherited by their children, who can claim restitution of the former family home and property. To satisfy the requirements of the principle of the best interests of the child, authorities and other agencies would have to give orphaned internally displaced children assistance appropriate to their age.

With regard to the exercise of property rights, this assistance could involve concepts such as legal guardianship to hold the property for the child until he/she reaches the legal age to exercise property rights for him or herself, or the establishment of a compensation fund to be paid out to orphaned children when they reach adulthood. The important point to stress is that internally displaced children should under no circumstances lose the right to housing and property restitution because they have been orphaned by the conflict and are underage at the time of return.

It is unclear at the present time how the right to housing and property restitution of children internally displaced by

the conflict will be implemented during the return process in Sri Lanka.

However, the country has dealt with the issue of internally displaced children in the aftermath of the December 2004 tsunami.

According to UNICEF figures, 1,582 children were orphaned by the tsunami.5 From the beginning, NGOs and others called for special attention to be paid to the issue of housing and property restitution for those children.6 While a special commitment to the needs of children orphaned by the tsunami was recognised with the passing of the Tsunami (Special Provisions) Act (2005), this Act does not address inheritance rights. Rather, it established special regulations for the foster care and adoption of tsunami orphans. The express aim of the legislation was to make sure that foster care is appropriate and that no child is given away for adoption before his or her status as an orphan is clear and a suitable family has been found. With regard to inheritance rights of tsunami orphans, one must refer to the normal Sri Lankan inheritance laws, under which, different legal provisions apply depending on the origin of the child (Thesawalamai Law for Tamils in the North, Muslim law for Muslim children, Kandyan law for Kandyan families and Common Law for all other cases). Although there are differences in these laws regarding the inheritance rights of orphaned children (e.g. differential treatment of sons and daughters under Muslim law), all three legal systems generally award the parent’s property to the children.7 The system of foster care and adoption introduced by the Tsunami (Special Provisions) Act (2005) seems to have been implemented well and a suitable foster/

5 Tsunami Two Years On, UNICEF, p. 9 6 See for example Human Rights Issues in the Post Tsunami Context – Sri Lanka, INFORM Human Rights Centre, April 2005, p. 5 available at http://cohre.org/store/attachments/INFORM_April_2005.pdf or Sri Lanka 2005 Post-Tsunami Recovery Programme Preliminary Damage and Needs Assessment, Asian Development Bank, Japan Bank for International Cooperation and World Bank, January 2005, p. 37.

7 For further details on inheritance rights, see Pubudini Wickramaratne, Inheritance Rights of Children in Sri Lanka, to be published shortly by COHRE. Please contact COHRE for details.

adoption family, usually relatives, was found for almost every child. On the other hand, the issue of inheritance of property by orphans seems to have received little attention. Rebuilding works in tsunami affected areas are nearing completion, and the provision of a house for a house in the Tsunami Housing Policy is by and large implemented. But research has revealed no case where a claim was made on behalf of an orphaned child for the lost property of his or her deceased parents. It appears that the government and agencies involved in tsunami rehabilitation work have overlooked that orphaned children can make a claim for the restitution of the property of their deceased parents. While it is understandable that in the short term, all efforts were put into finding suitable families to look after orphaned children, it is a clear breach of housing, land and property rights that the issue of housing and property restitution of orphaned children was neglected. In addition, it would make a big difference for orphaned children who, at reaching adulthood, would either acquire property over a house and land or receive a sum of money by way of compensation for lost property.

With the return process in the East underway, it is imperative that the government and agencies involved in return work are mindful of the restitution rights of displaced children, and especially of those orphaned by the conflict. Any legal and policy developments in this area should clearly recognise and incorporate the particular restitution rights of children, in accordance with the Pinheiro Principles, and other international standards.

C e n tr e o n H o u s i n g R i g ht s a n d E v icti o n s 106 1/1, Horton Place,Colombo 7, Sri Lanka.

Email: srilanka@cohre.org Tel: +94 11 2693143 www.cohre.org/srilanka