The traditional land tenure systems in the Levant are complex and overlapping, stemming from hundreds of years of evolution in legislative as well as socioeconomic conditions. By the end of the 19th century, the Ottoman authorities moved to codify the land management system and homogenize the legal framework for registering property. The move was mainly driven by a dire need to secure the tax base of the empire. This was part and parcel of a wider reform to readjust the relationship of a growing urban middle class to the State. The reforms, however, preserved a very wide variety of traditional land tenure systems and enshrined them within a new legal code. The process of narrowing the legal definition of property and moving from a common law “deed” to a Civil Code “title” system was finally accomplished during the French mandate of 1920–1946. The French not only changed the legal framework but instigated far-reaching bureaucracy to delineate rights, demarcate physical property, register titles, cross-reference registers, and adjudicate disputes. The system was innovative for its time but could not cope with the increasing demand for urban properties in the post-colonial period. The rapid rural to urban migration starting in the second half of the 20th century resulted in major demands for housing and real estate in the main cities. The process of transforming peri-urban rural lands into urban brownfield properties was an integral part of a new social contract to co-opt the urban middle class into the ruling Baath party patronage starting from 1963. Supply-side subsidies and the promise of freehold homeownership for all was a dream that the State could not fulfil. Unresolved contradictions that remained after the transformation of the traditional tenures into modern registries accumulated and added to the inability of the State to manage urban growth properly. These contradictions were an important factor among the root causes fomenting in the country before the outbreak of the conflict in 2011.
The overly bureaucratic nature of the cadastral system necessitated the creation of temporary records in 1974, but those temporary records lacked rigour and a solid documentation process (delineation without demarcation on the ground). The cadastral system could no longer keep up. Furthermore, the socialistic orientation of the economy drove the State to issue new laws to regulate land speculation and concentrate all urban expansion in the hands of the public sector. This led to a subjective exercise of the power of eminent domain. The expropriation process aggravated many communities as they were poorly compensated and saw their lands being distributed to provide housing for civil servants and the middle classes needed by the State to secure political stability and services. The haphazard procedures added insult to injury and drove many peri-urban communities away from their traditional residences as their villages were being absorbed by the growing cities. Moreover, the State invested differently in urban management processes in different parts of the country. In some cases and under the guise of securing border areas, stringent regulatory processes were imposed on communities suspected of disloyalty to the State (the Kurdish-dominated north is the most prominent case). Finally, the inability to resolve age-old problems of collective land holdings and the commons established as religious and charitable endowments contributed to the shortage of legal land for development.
Spontaneous settlements sprouted up around the main urban areas; by 2011, the larger cities had over half of their populations living in informality of one type or another in and around the major cities. Some extreme cases involved downright squatting on public and private land, while others involved some level of security of tenure (settlements between owners and squatters endorsed by the courts but unrecognized by municipal planning departments, agreements concerning usufruct rights, and so forth). Still other forms of informality involve the densification of brownfield properties illegally without obtaining a proper license. The Syrian municipalities opted to deal with the issue in different ways. Some preferred to advance urban services to spontaneous areas while others were more reticent. The provision of urban services by the State often provided auxiliary forms of registration (water and electricity meters and bills). A real-estate market emerged in parallel with the formal real-estate market and the two influenced each other considerably. The different levels of informality and quasi-legal documentation available featured as important determinants of land prices and of community solidarity to capitalize on land prices in their areas, creating another economic stratification process in the cities.
The early manifestations of the conflict occurred primarily at the urban/rural interface. Housing, Land and Property (HLP) issues played a major role in mobilizing disgruntled communities. At first, the State decided to separate this issue from other causes of grievance (human rights abuses). The first two years of the conflict witnessed a laissez-faire attitude in the spontaneous settlement areas. The State turned a blind eye while these areas added no less than 10% to the housing stock in less than one year. However, demonstrations against the State did not subside and the idea of appeasing communities to quell the uprising seemed to backfire. The rebellion took a sharp turn towards heavy militarization by the early part of 2012. Most of the front lines in the battles were located in peri-urban areas and in the small and medium-size cities where urban growth was rapid and HLP rights most vulnerable. Indeed, most of the damage to the housing stock, estimated at over 33% of the total pre-war value, was to be found in these areas.
Many within the government started to advocate a permanent solution to the spontaneous settlement areas, taking advantage of the fact that most of their inhabitants were forced out either as refugees in neighbouring countries or as internally displaced persons in Syria. The lucrative potentiality of the destroyed peri-urban areas as possible sites for re-development created pressure to compensate loyalist cronies and to allow them to invest in “reconstruction solutions” based on public-private partnerships where the original populations were the weakest link. Some laws were issued to test the ground for a possible neo-liberal framework for reconstruction even while the battles were raging (legislative decree 66/2012). These experiments provided the impetus for further land speculations in the most devastated areas. The chaos and corruption created in the past six years has engendered new forms of fraud, forced the sale of property, and forced the evacuation of residents under flimsy pretexts (partly using the fact that the less than perfect tenure documents in those areas were illegal). Women were often the most affected as the fate of disappeared male heads of households was not recognized by the State.
Furthermore, in different locations and under different guises, all parties to the conflict participated in ethnic or sectarian cleansing and the resettlement of displaced families in the vacated properties of displaced persons from other communities. This phenomenon is still confined to specific locations and is mainly reflective of the practice of local actors and warlords, and cannot be seen as a major policy directive yet. However, as the conflict continues, the assumption is that displacement will become permanent and that HLP infringements will become part of an ethno/sectarian grand redesign of Syria. To that extent, HLP is increasingly featured as a core issue confronting the peace-building process.
Impact of HLP on the peace process
The peace process has thus far been fixated on issues related to political transition and power sharing. Very few efforts have been made to map the magnitude of the HLP problem and the way it may affect the peace process. However, one can discern several levels of concern that should be addressed even before a political deal is reached. The following concerns will play into the hands of all types of spoilers of the process if they are not addressed:
- Most of the internationally recognized operations around HLP issues in the post-conflict situations tend to address grievances that accumulated during the conflict. Addressing pre-conflict grievances is also essential in Syria.
- There is no reliable judiciary system that can be trusted with the issue. The establishment of an independent judiciary framework will be an essential part of the political negotiations. These negotiations have not produced any viable solutions as yet for the separation of powers, or for how the fragmented Syrian territory will be re-aggregated in the future for that matter.
- The fixation of all actors on the formal HLP documentation process (both actors working from Damascus and actors working across the border) may lead to a bias against the semi-legal documentations that most displaced Syrians had enjoyed in the past.
- A great many HLP transactions were recorded outside the State institutions by para-legal religious authorities and makeshift courts. These courts will be subject to incrimination in any future political deal that will consider the human rights abuses of all parties to the conflict. There will be a tendency among such para-legal actors to destroy their records to avoid future incrimination.
- While the official national narrative has been fixated on freehold ownership as the predominant pattern of tenure, the reality (even before the war) is that many urban areas have different forms of tenure (leaseholds, pawns, borrowing, and so on). Attention should not be paid to reinforcing the old unsustainable forms of tenure, but should focus instead on developing alternative frameworks and socially acceptable norms to the untenable freehold ideal.
- The weak position of women when it comes to negotiating solutions among an increasingly militaristic and patriarchal social order will further deprive women of their HLP rights.
International support to address the HLP issue
Interventions in HLP issues are only just starting to gain traction among international donors and actors. Some of the issues to be considered are:
- The architecture for adjudicating HLP disputes cannot depend solely on the formation of special commissions (as was the case under the Dayton Agreement). The restitution of HLP rights cannot be incorporated into the repatriation and resettlement of refugees annexes to the political agreement. They should be addressed as part of the reform of the judiciary at large. Para-legal institutions must somehow be incorporated into the deal to avoid the chaos created by wartime HLP transactions.
- HLP issues will generally be regarded as part of the greater reconciliation efforts between the different communities in Syria. Resources must be provided to develop local reconciliation infrastructure. The task cannot be left to a national top-down peace process.
- HLP issues in Syria will overwhelmingly concern urban areas where the real estate markets will be critical in instigating the reconstruction process. Donors should avoid the temptation of supply-side solutions to the issue, and focus instead on demand-side solutions: micro loans especially for women, hedges against evacuations and sharp price hikes (not rent controls), housing coupons, and so on. In short, HLP issues in semi-legal spontaneous areas must be accompanied by strong but well-calibrated financial instruments to forge the win-win deals on the ground to resolve disputes.
- The issue of tenure will also have to be addressed with a critical review of the status of women in the absence of male heads of households. Women are the main heads of households in many areas and the overall percentage of women in this position has increased severalfold in Syria. Yet the legal framework still favours the male next-of-kin. The HLP issue will require close linkage to uncovering the fate of the disappeared and the kidnapped. It will also require negotiating some basic changes to the law to provide women with more equitable solutions in the case of inheritance.
- Many of the neo-liberal models being proposed for Syria are already promoting the notion that HLP issues are unsolvable. The solutions they are proposing involve creating an urban tabula rasa, permanently displacing IDPs by providing them with minimal compensation matching their poor tenure status, and then preparing the land for re-development. The donors should focus on the right to the city as a precondition for advancing money for urban projects, as much as they are focusing on human rights and political transition as prerequisites for reconstruction funding.
Land conflicts in Syria are the visible manifestation or outcome of the often invisible power and politics concerning access to and use of land. People seem to have limited knowledge with regard to who has what influence over the way decisions about land are made and enforced, or how these individuals and groups use that power.
The complexity of the causes leading to land conflicts, as well as their diversity and the large number of different actors involved, requires an integrated, system-oriented approach to resolving land conflicts and to preventing new ones. The examples demonstrate that the different levels of addressing land issues should be linked and synchronized, from national to regional to local levels.
The restitution of land rights is internationally recognized as the preferred option for restoring land rights after conflict. However, when addressing land conflicts and HLP issues, it is crucial that the process not only focuses on restitution after the most recent conflict, but also addresses the historical structural issues fuelling land disputes. Otherwise there is a danger that past injustices will be legitimized and new ones created. Hence, a more extensive land reform might be needed to address the structural causes of conflict, such as unequal access to land or land concentration. Since the timeframe for achieving such reforms and desired settlements can be quite lengthy, there is also a need to understand the current legislative and administrative processes upon which national peace processes can build.
Implementation of land-related agreements has often failed because peace agreements have not been specific enough in their land provisions. An appropriate level of detail regarding land and other resources should be included in the national dialogue process and eventual peace agreement, although achieving this can be challenging. When levels of trust and confidence between the parties are expected to be low, it can be important to include more detailed provisions in peace agreements to provide sufficient assurances and to avoid leaving issues open to interpretation.
Author: Omar Abdulaziz Hallaj, Common Space Initiative