I. Background

2.1 All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/ or property that is factually impossible to restore as determined by an independent, impartial tribunal.

2.2 States shall demonstrably prioritize the right to restitution as the preferred remedy for displacement and as a key element of restorative justice. The right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor non-return of refugees and displaced persons entitled to housing, land and property restitution.

United Nations ‘Pinheiro Principles’ on Housing and Property Restitution for Refugees and Displaced Persons (2005)

1. Since the end of the Second World War, the world has never counted more displaced persons - both refugees and internally displaced persons (IDPs) - than there exist today.

According to the United Nations (UN) refugee agency, UNHCR, as of 2021 there are more than 82 million people officially registered as refugees and IDPs.2 If those not officially considered persons of concern to UNHCR, including those displaced by environmental, climatic and other forces are added to this total, these numbers expand into the many hundreds of millions, with further hundreds of millions threatened with looming climate displacement as global climate conditions worsen. 3 As such, notwithstanding how displacement is measured, there are now many tens of millions of refugees and internally displaced people throughout the world who are seeking durable solutions to their displacement, many of whom dream of returning to their original homes or at least re-assert control over them, even if these homes are damaged or illegally occupied by others or if return would be dangerous. International law and practice increasingly recognises that all people who have seen their homes destroyed or arbitrarily occupied by members of opposing political, ethnic or religious groups, must be legally entitled to re-possess and/ or return to their homes, lands and properties through the process of HLP restitution, and when return is either dangerous or materially impossible, that control should be able to be re-established over these HLP resources by the displaced and where required adequate compensation or reparations be paid.4 Unresolved restitution cases span the globe, leaving

2 UNHCR, UNHCR Global Trends Report, 2021.

3 See: UNHCR, Unlocking Solutions for the Internally Displaced: Additional Submission to the High-Level Panel on Internal Displacement,

September 2020. 4 See, for instance, Pablo de Greiff (ed), The Handbook of Reparations, Oxford University Press, 2006.

tens of millions of people with legally outstanding (and thus, unresolved) restitution claims and no remedies available to rectify this state of affairs. These people are waiting for justice, but most have nowhere to turn to have their case heard and their interests represented.

2. Despite the efforts of so many to assist the displaced, there is still no international inter-governmental, State-based institution or independent non-governmental body in place to systematically monitor, advocate for and help enforce HLP restitution rights for the displaced. In effect, therefore, HLP restitution is currently a right without an official institutional champion dedicated to providing targeted assistance to the tens of millions of persons yet to achieve residential justice, restitution or compensation. Even where these issues have been addressed by recent global initiatives, albeit briefly, such as within the 2021

UN Secretary-General’s High-Level Panel on Internal Displacement, there is no agency in place with a mandate to comprehensively address all aspects of the restitution question. 5

3. Although often dismissed by increasingly xenophobic governments that are intent on limiting the rights of asylum seekers and migrants, many refugees and IDPs want nothing more than to go back to their places of habitual residence should circumstances so allow. Despite the frequently heard views uttered by those opposed to restitution, the displaced do not forfeit their HLP rights to their former homes if they choose not to return due to the dangers associated with doing so. Indeed, far from it. International law, of course, rightly prohibits governments from forcing people to return to dangerous conditions, but once return is the desired option by the displaced themselves, however, their HLP restitution rights need to be taken seriously. This is important not only because of the human rights issues involved.

History amply shows that lasting peace, stability and security in post-conflict societies, for instance, are strengthened when HLP cases are resolved and restitution guaranteed, rather than being left to fester without remedy. This is particularly true in areas where displacement was brought about by violence or acts of ‘ethnic cleansing’. The unresolved restitution claims, for instance, of millions of Palestinian refugees remains a key stumbling block in the search for a sustainable peace in the territory of Israel and Palestine, as do the unresolved restitution claims of refugees and IDPs in countries such as Cyprus, Georgia, Syria, Yemen,

Myanmar and so many others. Clearly, displaced people should not be punished with the loss of their homes and lands and the rights in place to protect them simply because they fled to save their lives, and restitution is the process by which at least an attempt can be made to return the situation to what it was at the time when the initial crime and/ or displacement took place, eg. the very definition of restitution, and why this principle has such a lengthy history in law. When return is not possible nor desired due to security, human rights and other concerns, this does not in any way extinguish restitution rights or restitution concerns. Indeed, return and restitution are not necessarily inter-changeable terms, although they are often used as such, and restitution rights remain valid whether or not a given refugee or IDP chooses the return option as their preferred durable solution to their displacement. Restitution is not a panacea per se, nor a guarantee for peace and stability,

5 UN Secretary-General’s High-Level Panel on Internal Displacement, Shining a Light on Internal Displacement: A Vision for the Future,

United Nations, September 2021. This important report only mentions restitution in the most sporadic of fashions, noting ‘In addition to peace processes, restitution of property left behind and compensation for destroyed or lost property are crucial for enabling IDPs to rebuild their lives and for the closure they can help provide for communities that have suffered during crises… Many countries lack the resources to offer effective compensation while, in others, informal approaches to housing and property tenure create challenges for

IDPs in reclaiming their rights and entitlements. Even where the means are available, many States do not prioritize such initiatives’. (p. 16).

but it forms a key element in any effort to build greater respect for human rights, the rule of law and institutionally committing to never accept the results of practices such as ethnic cleansing, population transfer and the implantation of settlers.

4. Recognizing the immensity of this problem, the UN has increasingly asserted that displaced persons – whether refugees or internally displaced – should have the right to return to their homes should they so wish. Indeed, there is a growing recognition that what the UN refugee agency labels as ‘safe and dignified return’ cannot effectively take place unless HLP restitution rights are protected. Though it may be slow and not without difficult obstacles to be overcome, by using legal mechanisms backed by human rights laws, countries have shown that successful restitution can occur, despite the sensitive political atmospheres where restitution processes generally take place.

5. And yet, whether Syrians, Georgians, Somalis, Afghans, Iraqis, Ossetians, Ukrainians,

Crimean Tatars, ethnic Nepali Bhutanese, Congolese, Sudanese, Abkhazians, Serbs,

Bosnians, Palestinians, Armenians, Azeris, Cypriots, Colombians, the Rohingya, Karen,

Karenni, Shan or other ethnic groups in Myanmar, Sudanese, Tibetans, Kurds and so many others, the more than 80 million of the world’s displaced first want security and protection, but once these are accessed, thoughts of eventually going home, starting over, and re-establishing their former lives are never very distant.

6. Put simply, refugees and IDPs almost universally wish they could return home if conditions so permitted, or when this is not possible, at the very least that they would be able to exercise control over the homes and lands they left behind when they fled. Similar sentiments often exist within the governments in countries now hosting the displaced. It is well-known, for instance, that individually and collectively within the contexts of the European

Union, Council of Europe and NATO, strong political support exists to facilitate the voluntary return home by groups comprising recent large-scale refugee movements who are now in

Europe through the establishment of mechanisms to address unresolved restitution claims and other measures that would support safe and dignified return. The lack of avenues to restitution, thus, make return increasingly difficult.

7. While a wide range of international and regional bodies have been involved with restitution processes on a largely ad hoc basis since the end of the Cold War, no single UN or other inter-governmental agency maintains a full-time, adequately staffed mandate or competency to focus the attention and resources needed to the question of resolving millions of as of yet unresolved restitution claims. Agencies that one might assume would happily embrace these competencies, in particular, the UN High Commissioner for Refugees (UNHCR) and

UN Migration (IOM) come nowhere near having the internal political support required to focus adequately - let alone comprehensively - on the unresolved restitution demands of refugees and IDPs, nor do a whole host of other agencies that have been involved to one degree or another with restitution issues in recent decades such as UN Habitat, UN Office for the Coordination of Humanitarian Affairs (OCHA), the Council of Europe, OSCE and many others.

8. Given the sheer scale of unresolved HLP restitution claims in so many countries and the glaring gap between the right afforded refugees and IDPs to restitution and the de facto reality facing a majority of these rights-holders which prevents the exercise of these rights, it is clear that new approaches are required by the international community to give renewed impetus to the question of restitution and how to best bring these complex rights into reality.

9. One means by which these objectives could be pursued is through the establishment of a new international organisation, either under the auspices of the UN or comprised of groups of like-minded states or regional organisations or entities independent and non-governmental in nature, dedicated exclusively to the question of resolving all outstanding HLP restitution claims wherever they exist. A new agency of this nature could address a wide range of outstanding restitution claims from circumstances of displacement that have occurred since the end of the Second World War in countries as diverse as Syria,

Myanmar, Colombia, Sudan, Armenia, Azerbaijan, Georgia, Ukraine, Sri Lanka and many, many others. Moreover, a new agency could act as a global advocacy centre supporting HLP restitution rights, provide digital database capacities for holding and assessing restitution claims and act as a clearinghouse for global restitution expertise. If donors supporting a new

WRA were to support this, the new agency could also address the human rights dimensions of a wide range of new displacements that are currently without remedy that will continue to occur due to the effects of climate change and other causes. Consideration should also be given to addressing the numerous outstanding restitution claims of indigenous peoples across the world who all share the experience of dispossession, the loss of traditional lands, land grabbing, displacement, ethnic cleansing and countless other crimes.

10. Restitution is currently a right without an institutional home or champion working full-time and exclusively on these complex issues that could assist tens of millions of persons to achieve residential justice and restitution or compensation. This report concludes that it is time for a new international body dedicated to these processes. Ideas as to what it could look like, where it could be established, how it would be designed and who could financially support it are explored below. But first we turn to the legal issues involved and the huge number of unresolved human rights claims, as two key arguments in favour of establishing a new WRA.