Enab Baladi – Ninar Khalifa

Millions of Syrians lost their real properties due to their destruction, looting, or confiscation by the controlling powers over the past ten years in Syria. Other factors contributed to the exacerbation and complexity of the real-estate problem, such as forced displacement, demographic change, the influx of internally displaced people (IDPs), and asylum.

In the midst of chaos and loss of rights arises an urgent need to find solutions to the real-estate problem. A political track might bring a solution to address and discuss this issue, especially as the Syrian Constitutional Committee (SCC) is working on drafting a new constitution through its meetings, which are scheduled for the third round on 24 of August.

Hence, the question remains, will the SCC’s next meetings provide an opportunity to resolve real estate problems through the texts of the current constitution, or will they contribute to accelerating the process of the political solution, creating a secure and neutral environment and conducive climate to the return of refugees and the IDPs to their homes?

Detailed provisions for the protection of property rights

Syrian judge, and member of the civil society group of the SCC, Khaled al-Helou, pointed out to Enab Baladi that he had raised the need to address the problems caused by the real-estate chaos of the Syrian war during the first session of the SCC’s meetings.

He also stressed the importance of including this issue among the discussion points of the SCC’s next round of meetings.

Al-Helou clarified that Syria’s real-estate problem is an old one, and not a result of war; however, it has worsened during the years of the current conflict.

He said, today, the real-estate problem directly affects almost half of Syria’s population, especially the refugees and the IDPs. It is threatening the chances of citizens’ return to their original areas, according to al-Helou.

During a statement in the SCC’s meeting, al-Helou stressed that the provisions included in successive Syrian constitutions are not enough to solve the real-estate problem; instead, the SCC should work on setting detailed provisions for the protection of property rights. Such provisions are usually contained in constitutions that follow conflicts.

Al-Helou added, the provisions should include a special chapter for the restitution of housing, land, and property, and call for establishing new constitutional institutions for implementation.

According to al-Helou, the next session of the SCC’s negotiations will discuss the “national principles.” He added the housing restitution matter could be included in the discussions as it is part of the basic principles that are at the forefront of constitutions, namely the economic principles.

Al-Helou mentioned that even though the international actors have no role when it comes to drafting the current constitution of Syria, these countries could pressure towards the preservation of property rights, particularly those hosting Syrian refugees.

In his statement before the SCC, al-Helou talked about Germany’s role in Bosnia in the signing of the “Dayton Peace Agreement (DPA),” which ended the bloody war in the former Yugoslavia in 1995, and served as the country’s constitution.

Back then, Germany pushed for giving importance to the issue of property rights in the constitution as it was home for more than 400,000 Bosnian refugees due to the war at the time. Germany brought the Bosnian refugees back to their country during the years that followed the DPA.

Al-Helou pointed out that the Security Council Resolution No. 2254 on Syria’s political solution stressed the need to create appropriate conditions for a safe and voluntary return of refugees and IDPs to their original areas. The resolution also called for the rehabilitation of war-affected areas, taking into account the interests of countries hosting Syrian refugees, and urging member states of the council to assist in this regard.

While the “Pinheiro Principles,” adopted in 2005 by the “United Nations Sub-Commission on the Protection and Promotion of Human Rights,” affirmed the right of refugees and IDPs to recover their arbitrarily appropriated property or to be compensated under an independent and impartial court in case of impossible property restitution on the ground.

The “Constitutional Committee” must provide solutions

Samira Mobayed, a member of the civil society delegation group of the SCC, considered that the “Constitutional Committee” is still far from having any discussion on the constitution’s contents or putting the Syrians’ priorities and problems on the table of political debates and finding solutions to them.

Mobayed pointed out to Enab Baladi that the issue of housing and property restitution is not on the agenda of the SCC’s next meeting.

Instead, the SCC will discuss the committee’s mandate, benchmarks, key elements of the committee’s rules of procedure, and the national foundations and principles, according to Mobayed.

She added, any amendment of the SCC’s agenda to include additional points of discussion is not possible, because the invitation to the meeting had been in accordance with a specific agenda agreed upon by the Syrian regime and opposition delegations, the two deciding parties.

Mobayed added, the civil society group does not participate in deciding the proposals or priorities of the SCC’s agenda.

At the same time, Mobayed stressed the importance of providing solutions to the real estate problem in Syria by the political transition process in general and the “Constitutional Committee” in particular. She called for amending the current property laws to ensure the restitution of property rights to their owners, the return of refugees to their lands and jobs, and compensation for those affected, in all the Syrian regions, whether controlled by the regime or outside of its control, and under the rule of the de-facto forces in Idlib or north-eastern Syria.

Mobayed believes the Transitional Council will have the most prominent role in the future, for it will be committed to implementing the laws adopted in this context.

Memorandums to the United Nations and the international actors

Member of the opposition delegation to the SCC, Dr. Ibrahim al-Jabawi, considered that property issues and demographic change would be discussed at the next session of the “Constitutional Committee,” as they fall within the “national basis of the constitution.”

Al-Jabawi said to Enab Baladi that all previous “Geneva” discussions discussed only the political transition in Syria and that there had been no real negotiations within the SCC to discuss anything effectively.

According to al-Jabawi, Syrian opposition entities raised several issues, including Law No. 10 of 2018, cases of detainees, and stopping bombing and displacement during their discussions with international actors in the Syrian conflict (the small group and the Security Council).

He added, the opposition entities sent memorandums to the United Nations and the relevant countries on the processes of demographic change, property confiscation, or forced selling transactions. Al-Jabawi confirmed that such issues are a main part of the Syrian file, and they should be present when reaching an agreement on a solution.

Al-Jabawi continued saying that “after the political transition, and the provision of a safe environment, Syrian refugees will be able to return home, and then all actions taken by the regime during the revolution, contrary to the aspirations of the Syrian people, or in contravention of humanitarian laws and constitutions regarding property rights and public freedoms, shall be considered.

The Bosnian experience as an example

Judge Riad Ali stressed the importance of discussing the property rights file on the SCC table, and that the constitution being drafted should include detailed principles on this file or a law attached to it.

Ali explained to Enab Baladi that after writing the constitution and forming the transitional governing body, specialized committees, including Law Review Committee, are supposed to be established to cancel and amend all that is not in accordance with international covenants and conventions, and to present all amendments to the new People’s Council for ratification.

The new constitution should emphasize the importance of respecting laws, covenants, and international charters over domestic laws, especially those signed by the Syrian government.  It should also stress the necessity of applying international laws to property cases that will be brought before the courts in the future.

Ali pointed out that the Bosnian experience can be used as an example, as there is a complete protocol to the DPA, which became a constitution that is still in force today.

The protocol to the DPA discussed the mechanisms for the formation of a specialized committee responsible for considering property restitution, its functions, and way of work to avoid leaving such matters to the special laws issued by the ruling authority according to its interests.

Ali added, the members of this committee were exempted from any criminal or civil responsibilities that may arise from the actions they carry out in the scope of their duties to protect them from pressures that may be exerted on them by influential powers.

The first Article of protocol “No. 7” to the “Convention on Refugees and Displaced Persons” in the Bosnian Constitution states that: all refugees and displaced persons have the right to return freely to their homelands, to recover the property taken over due to hostilities since 1991, and to receive compensation for any property that cannot be recovered.

Moreover, one of the important objectives of conflict resolution is to speed up the return of refugees and displaced persons, and the contracting parties must allow refugees and IDPs to return safely, without the risk of harassment, intimidation, persecution or discrimination, especially for their ethnic origin, religious belief or political opinion.

The contracting parties were obliged to ensure that refugees and displaced persons were allowed to return safely and without discrimination.