Millions of Afghan refugees and internally displaced Afghans have returned home since the fall of the Taliban, hopeful that their country has finally escaped a quarter century of war. The U.N. refugee agency (UNHCR) expects another 900,000 or more to repatriate in 2004 as economic and security conditions continue to improve.
Still, for various reasons, millions of displaced Afghans are unable to go home. And perhaps the most prevalent -- and certainly one of the most complex -- obstacles preventing return is the lack of access to land and housing. The magnitude of the problem led the IRC to hire a property law expert, John Dempsey, to focus on the issue and advocate changes that would have lasting impact on the lives of all Afghans.
During the past year, Dempsey and a team of Afghan national lawyers working for the IRC have engaged in a number of projects, including researching property-related obstacles that are preventing the return of uprooted Afghans. The main concerns identified are the destruction of homes, the presence of landmines, the paucity of arable land, hostile property occupation, interethnic tension, gender discrimination, fraudulent deeds, inequitable social and financial relations and the lack of effective property recording systems or adequate dispute resolution mechanisms.
For many Afghans, the problem is a combination of these factors.
"The 15 jeribs of farmland I abandoned in Kunduz when I fled to Pakistan has been in my family for generations," explained an elderly man currently living in Pakistan's Kohat Refugee Camp. "But now, just because we are ethnic Pashtuns, everyone back in my village claims I am part of al Qaeda, so my family can't go back. But my ancestors and I are farmers! We're not terrorists! And because our land is occupied by Tajiks, who have the support of powerful commanders, we are stuck in this camp, working to make bricks 12 hours per day for virtually no pay."
Dempsey and his colleagues heard similar sentiments from dozens of refugees, indicating how various factors -- occupation of land, ethnic and political tensions, lack of the rule of law -- can contribute to making property disputes some of the most intractable in Afghanistan.
Dempsey points out that one major difference between Afghanistan and other post-conflict countries is that in Afghanistan, landlessness is a much larger concern than property restitution.
"The real issue for most returnees is not ownership of property but access to property," says Dempsey. "Most refugees didn't own land in the first place but instead worked as sharecroppers and laborers on others' land. With little hope of getting their jobs back, they’re hoping the government might allocate plots to them."
IRC and UNHCR jointly intervened early in 2003 in a few property cases of displaced persons, but a weak judiciary and police system in the country made resolving these cases fairly difficult. More often than not, corruption and intimidation played a role in the outcome.
Thus, rather than continue ad hoc attempts to address individual property cases, Dempsey and his Afghan colleagues shifted their attention to advocating for legal reforms that promote the protection of property rights.
With a new Constitution being drafted for Afghanistan, Dempsey met with President Hamed Karzai, some of his Ministers and members of the Judicial Reform Commission to advocate for the passage of statutes that might improve the country's property and dispute resolution laws. His recommendations focused on distribution of land to landless returnees and alternative mechanisms for courts to resolve property disputes.
Dempsey was also invited to draft a suggested chapter on land rights, which he presented to a plenary session of the Constitutional Review Commission in September. The draft currently being debated by the Constitutional Loya Jirga, ultimately included several of the recommended concepts, including an article requiring the State to distribute land to deserving citizens.
"The current draft is an improvement on the old Constitution, at least on this issue of land distribution," says Dempsey. "It doesn’t address property rights in significant detail, but we realize much more will be done at the statutory level."
The ongoing insecurity in many parts of the country and the large number of armed militias opposed to the Afghan Transitional Authority pose challenges to implementing new rule of law initiatives. But Dempsey says it would be a mistake to delay property law reform until security and disarmament have been achieved.
"Violence in Afghanistan often results directly from disputes over land or homes, and thus, addressing property disputes will improve security. You cannot have one without the other," says Dempsey.
Given the magnitude of the property problems in the country, the IRC plans to continue work on property law initiatives in Afghanistan in 2004 and beyond.
