Land - a key issue for humanitarian agencies during armed conflicts

The author of this text is political adviser to the International Committee of the Red Cross (ICRC). The text does not necessarily reflect the views of the ICRC but rather those of the author. This is a translation of the original version in French.

The aim of this document is to present the specific practical challenges of land disputes for humanitarian agencies, as experienced by the International Committee of the Red Cross (ICRC) in armed conflicts.
It is worthwhile examining those challenges in depth in order to find out how to meet them. However, this document does not set out to provide solutions, our more modest aim being merely to establish the terms of the debate.

Why decide to share some thoughts on the key issues for humanitarian agencies in land-related conflicts?[1]

• First, this problem is central to a number of current conflicts. To give just one example, conflicts cause displacement. The land is abandoned and occupied by others. Difficulties arise when hostilities give way to volatile peace and refugees or internally displaced persons want to go back to their home regions. Who is entitled to farm the land, to earn a living from it? The practical aspects of the return of people who left willingly or unwillingly can be discussed at the village or district level. Sometimes those matters are controversial or the indigenous people refuse to allow the displaced persons to return, which leads to violence. The situation is even more critical when the land contains natural resources.
• Second, current disputes about access to the land and its use, ownership, management and transfer are likely to intensify in the coming years, with serious consequences from a humanitarian perspective. The impact of global warming (periods of drought, desertification and an increasing number of natural disasters) is forcing people to migrate or to take other routes than those normally used. That often leads to tension among sedentary peoples and nomadic or semi-nomadic newcomers, who have been forced to change their way of life and therefore need land to provide food for themselves or their animals. These tensions disrupt traditional balances between the different population groups. Furthermore, there is good cause to fear that the global food crisis and demographic growth in some countries in Sub-Saharan Africa will also increase competition for fertile land and lead to the exodus of impoverished peoples without any means of survival.
• Finally, land disputes may have humanitarian consequences that are multiplied by different factors: the availability of weapons which make the conflicts more bloodthirsty and difficult to resolve; the weakening of mechanisms to resolve or regulate conflicts (for example, loss of credibility of wise members of the community – village elders – and the traditions which they represent and uphold) and the instrumentalization by armed groups or public authorities of the tensions related to land.

Land is not merely a source of food, it often has a symbolic value. Land includes the soil and the physical area, as well as all the natural resources associated with it, such as water, trees and minerals. It is a source of food (natural and agricultural produce). It provides the resources needed for people to live in a manner befitting human beings (trading the produce of the land and extracting and trading its mineral and other wealth). It is focal point of life, the setting for family and social relations (for example, in order to be able to marry, a person has to be able to feed a family and must therefore have land to be farmed). Finally, it may have a symbolic value derived from religious, historical, cultural or other factors (emotional identification with the land).

The humanitarian organizations have close connections with land and those connections are not always straightforward. Take the example of assistance being given to a nomadic or semi-nomadic group in difficulty. The needs of that community may require more sophisticated forms of action than distributing food, water or household articles, as is necessary in periods of severe crisis. The tasks which need to be carried out may include giving the community access to regions where food grows naturally (gathering), allowing safe passage to markets or urban centres, opening up migratory routes that are cut across by lines of inter-ethnic tension, restoring sources of water, improving the productivity of the cattle, and even constructing barns in which to store the harvest or the produce of animal breeding in order to stabilize the terms of trade. The aim of all those initiatives is to ensure economic security for people in difficulty, to enable them to cover their long-term economic needs and their essential expenses (especially food, housing, access to health care and education). Those initiatives imply taking steps which require knowledge. Who is entitled to move across the land, to cultivate it, to plant trees on it and to build a dyke? Does the land belong to individuals? To a community? To the State? Is it accessible to everyone? The answers are not easy to find as they may differ from one village to another.

Having established the basis for the review, let us now turn to the challenges which land-related problems present for humanitarian organizations. The experience of ICRC operational managers, which they shared, in particular, at a workshop organized by the ICRC Economic Security Unit in Nairobi in October 2007, suggests that the main questions are as follows:

What information is needed before launching an assistance project involving land use, who can be called upon to provide it and how can we be sure that the information is managed proactively in unstable environments?

If the economic security of the different groups concerned is to be ensured, their needs and interests, the law that is applicable and the mechanisms for settling differences have to be understood. But is that enough? There is also the question of knowing who to ask for this information. Sometimes, our contacts say that they are authorized to give access to the land and when we start to dig a well, another group turns up with informal authority and contests the permits that we have been given. Finally, in a delegation comprising general delegates, lawyers, engineers, agronomists, logisticians and other specialists, how can one ensure that everyone can listen to local people on matters related to land in order to carry out impartial humanitarian activities which respect the law as well as various traditions and sensitivities?

How can humanitarian activities be prevented from aggravating the land-related disputes and tensions?

First, what precautions need to be taken so as not give approval to the appropriation of land which belongs to other people? Isn’t there a risk of the assistance programmes settling communities on land whose traditional occupiers have fled the fighting? How will the latter react if, in the camps for displaced persons where they are accommodated temporarily, they find out that others are settling on their land, in their home region, with the assistance of humanitarian agencies? This calls for caution. Some initiatives therefore have to be abandoned at times – avoid distributing ploughing tools, seed and irrigation pumps or take care not to become involved in agroforestery (i.e. in planting bushes or trees which improve soil fertility) if planting trees is considered to be appropriating the land.

Next, how can one make sure that the infrastructures established will not become additional sources of conflict? To illustrate the point, engineers set up water sources which provide arable farmers with drinking water and water to irrigate their crops and cattle-farmers with water for their livestock.

Finally, how can a balance be struck between the need to uphold the principle of impartiality and the need for a degree of pragmatism so that the assistance given does not become a source of tension between opposing communities? Impartiality implies giving to everyone according to their needs, without discrimination on the basis of nationality, political affiliation, religion, ideology or gender. However, humanitarian agencies sometimes find themselves faced with moral dilemmas, as the following example illustrates.

Within the context of an armed conflict, farmers who were being assisted by the ICRC informed it of their fear of being attacked. They feared being pillaged by nomads who had settled on the land adjacent to theirs. They wanted assistance to be given to the newcomers whom they considered as potential enemies – but not assistance which would help them to settle permanently on the disputed land. They agreed to share the land – but not the most fertile land. Impartiality, stricto sensu, implied focusing ICRC assistance on the farmers in greatest need. Having said that, some of their neighbours were apparently in difficulty. So what could be done? Conduct vaccination campaigns or provide support for primary health care rather than distribute seed? Creativity is needed in contexts in which the safety of the humanitarian workers may be at risk, but it has its limits. Should attention be shifted elsewhere?

When and to what extent is it appropriate to take steps (which are defined by humanitarian players as “protection”) so that people who cannot meet their basic economic needs during an armed conflict have access to land and can farm it, and even retain the rights that they have to it – for example, if not farming the land for a few years means that they lose those rights?

Humanitarian organizations are often criticized for merely responding to needs, whereas rights should be defended. That is to ignore the fact that responding to needs is not purely material (distribution of family parcels, for example). The organizations sometimes have to apply for the authorizations needed to enable the people affected by an armed conflict to be given access to means of production and to meet their basic long-term economic needs. This gives rise to specific challenges. For example, what is blocking a migratory route so that livestock cannot move to seasonal pastures? Is it physical (no sources of water), related to security or political? Which authorities, groups and/or NGOs need to be approached to discuss the matter? How do the various local parties involved see the future of those routes?

A degree of caution is needed. Many steps taken with a view to defending rights would involve intervening in informal systems which are unfamiliar to the humanitarian agencies and where power relations fluctuate and the legal basis is not clear. Moreover, what types of rights fall within – or are excluded from – the remit of the different organizations? Is it appropriate for a humanitarian organization to take action, for example, if women affected by an armed conflict find themselves deprived of their rights to the land when customary law is applied? Finally, what adverse effects may certain initiatives have on the perception of the ICRC as a neutral, independent humanitarian organization?

In the context of an armed conflict or its consequences, how far can humanitarian agencies go in protecting communities affected by land-related issues without endangering their neutrality?

Can they, for example, provide a neutral meeting place to discuss and resolve disputes over land rights when those disputes affect the economic security of the poorest people? Would it be appropriate to make the parties negotiating a peace agreement aware of the humanitarian problems caused by land-related conflicts? Must such decisions be taken on a case-by-case basis or globally? If it is not appropriate, should the humanitarian organizations mobilize other players? If it is, what kind of institutional skills should the humanitarian organizations have (themselves or by drawing on external consultants) before carrying out such activities – for example, mediation skills or an understanding of post-conflict mechanisms?

When opinions differ with regard to the rules applicable in a land-related dispute which is jeopardizing the economic security of people affected by a conflict, should the humanitarian agencies refrain in certain cases (which?) from launching an assistance project or should they decide to consider the law recognized as legitimate by the people in a given place at a precise moment as imposing obligations on them?

The question is very complex and there is no shortage of documents on legal pluralism. In short, there may be several concurrent legal systems governing management rights, usage rights, access and ownership of land (international public law, national law, customary/traditional law, religious law). Each legal system has its own institutions, its arbitration systems (local administration, courts, local leaders, religious representatives and village committees) and different degrees of power and legitimacy. Those systems are interlinked in a dynamic and complex manner. They may apply in small localities – one system will apply in one area and another ten kilometres further away. How can we know in what legal framework to operate, in particular when it is a subject of local or national controversy?

Does the humanitarian agency risk being accused of failing to maintain neutrality if it chooses to submit its humanitarian project to one set of rules rather than another? Does it risk being seen as favouring an ethnic group or nomads who depend on their cattle and transhumance for their livelihood to the detriment of small farmers or vice versa? In choosing to respect customary/traditional law, can it – in some countries – expect to be criticized for undermining State efforts to restore a standard rule of law across the entire national territory, particularly in rural areas? However, it might be replied that the legality and legitimacy of the established power are very often called into question and the legal systems applied at the level of the village or region have people's confidence. Moreover, despite its complexity, legal pluralism can be accepted by the State. How, therefore, can the best use be made, for humanitarian purposes, of rules which may operate concurrently but which may prove contradictory – which some people will not fail to exploit to deny the rights of another group and take over the land?

There is another difficulty: how to operate in such a way as to respect the local law and cultures when the political, legislative and/or judicial institutions have been destroyed or contested or are without the means to act (insecurity in the territory, lack of will or financial resources, predatory wishes, land shared out among their supporters)?

Who is to refer to the customary international rule [2] according to which property rights of displaced persons must be respected (Rule 133 of the ICRC study on customary international humanitarian law) when referring to that rule has considerable political repercussions? What role do the humanitarian organizations play in that respect?

In a system governed by the rule of law, that rule must be respected by the authorities and, in case of legal disputes, the courts have to enforce it. Is it the responsibility of the humanitarian agencies to promote it among the authorities and the judiciary, or even to make specific requests of the de jure or de facto authorities when that law is violated during an active conflict? On the one hand, its lack of respect has serious consequences for displaced people and to fail to refer to a legal ruling tends to weaken it, which is regrettable. On the other hand, referring to a principle legalistically is not devoid of risk for humanitarian agencies if that takes them to the heart of the political stakes in the conflict. Being aware of the extent to which displacement is a wartime strategy in current conflicts, there may also be security risks for the displaced persons as well as risks for their property – not to mention the dangers that being caught up in controversial issues can be incurred by humanitarian agencies. Moreover, what are the priorities of the humanitarian organizations?

Each humanitarian organization tends to weigh up the interests while taking account of its mandate, the specific features of the context and what is done by other players in order to chose the strategies that are best suited to helping people in need.

How should the interventions of the humanitarian agencies be coordinated when those interventions imply access to as well as use of and changes in management of the land?

That question becomes more important as clashes over land become more severe – as global warming, demographic change and the food crisis show.

When selecting their projects, do the humanitarian agencies take sufficient account of the requirements of sustainable development in their agricultural support programmes for people affected by armed conflicts?

One should avoid, for example, providing support for economic security programmes which would enable the communities to cultivate valuable species of trees if that were to have a devastating effect in ecological terms. That seems obvious, but is that environmental aspect always part of the assistance projects carried out by humanitarian agencies?

All in all, the issues related to land are complex, multifaceted, changing and frequently underrated. It is a good thing that they are being taken up by fora which bring together academic circles and humanitarian practitioners such as the Humanitarian Policy Group [3] at the Overseas Development Institute in London. There is no shortage of topics for deeper analysis – for example:

• the question of land rights (agriculture, cattle-raising and housing) in towns in conflict or with marked demographic growth because of the influx of displaced persons;
• the problem of camps for displaced persons or refugees, from the land-rights perspective (for example, the cost to the environment of such structures, but also the land-rights and ecological challenges presented by the unrestrained establishment of people on the move on land which does not belong to them);
• the humanitarian problems of individuals or communities which occupied the land during a conflict and which are forced to leave it once the hostilities have ended.

Our hope is that the exchange of academic knowledge and practical experience will help to make humanitarian work more effective and allow it to earn the respect of the communities for which the land is their source of livelihood but also a source of violence.

Notes

1. See also the brochure : Farming Through Conflict
2. See also the Summary of the ICRC study on customary international humanitarian law
3. See also on the Humanitarian Policy Groupwebsite :Uncharted territory: Land, conflict and humanitarian action