Reinventing the Rules
Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects
Securing Access to Justice and Land for Displaced Women
In March, the Norweigan Refugee Council launched a new report titled ‘Life Can Change: Securing Housing, Land and Property Rights for Displaced Women.’ By looking at NRC’s legal assistance programs in South Sudan, Afghanistan, Lebanon, Liberia, Palestine, and Ecuador, the publication documents why land is critical for women in a post-conflict environment and how humanitarian and development actors can help women claim their rights. Check out excerpts from NRC’s interesting findings below!
Credit: Zhining Liu
Why Land Is Critical during and after Emergency Responses
Access to housing, land and property is one of the principal factors determining the economic and social well-being of women, especially in situations of conflict and reconstruction when their rights are violated on a mass scale. NRC’s legal assistance programmes have found that displaced women’s challenges in claiming their HLP [Housing, Land, and Property] rights are not always considered during emergency response.
NRC’s research has found compelling similarities between displaced women’s experiences, despite the differences in conflict history, patterns of displacement, governance and culture. Fundamental to the effective realisation of HLP rights is the right of access to justice. The original focus of HLP rights – based on the restitution of pre-displacement homes and lands – has evolved in recent years. Situations of protracted displacement, typically characterised by unresolved conflicts which rule out both restitution and voluntary return, have necessitated a shift towards a broader perspective of security of tenure.
Why Land Issues are Neglected during Humanitarian Responses
The neglect of land issues in humanitarian response is striking insofar as conflicts over land play leading roles in many humanitarian emergencies, and land access and tenure issues are also central to recovery or rehabilitation. Humanitarian responses, both during the height of crisis and during what is variously called the rehabilitation or recovery phase, have an impact on land tenure and settlement patterns and thus on the future prospects of the people affected.
A further factor in neglect of HLP issues is the short-term framework of emergency response. Humanitarian actors often lack time, resources and opportunities to consider longer-term consequences. The lack of attention to HLP issues is also exacerbated by the fact that donors continue to split their funding between humanitarian and development programmes. Since addressing land issues is seen as a development concern, it is harder to access funding for humanitarian programmes targeted to HLP rights. Another reason might be that ‘fast’ results demanded by donors are difficult to deliver in HLP projects because working with governments and regional authorities is a long-term process.
How Humanitarian Actors Entrench Discrimination on Women’s Land Rights
This happens when humanitarian programmes fail to recognise the different ways in which women are affected by discriminatory HLP and family laws, social norms and practical barriers that discourage women from registering land in their own names. It also occurs when they fail to recognise that seemingly gender-neutral government land and shelter allocation policies make women’s security of tenure contingent on their relationship with a male designated as head of household.
For example, new properties allocated to households whose homes were destroyed or damaged in Operation Cast Lead (the December 2008/January 2009 Israeli assault on Gaza), or in other Israeli military operations, are registered in the names of male heads of households, rather than jointly or in the name of the woman, except in the case of a woman-headed household. A recent evaluation of a shelter assistance programme in Afghanistan implemented by UNHCR also shows that of all households assisted, only 1.9 % are female-headed. The under-representation of female-headed households is particularly worrisome considering their increased vulnerability in comparison to male-headed households in Afghanistan.
A contextual analysis of humanitarian crises and post-conflict countries which focuses only on international and national statutory provisions supporting women’s equality fails to take into account the central defining characteristic of these situations – the breakdown in the rule of law, the lack of implementation of legal provisions and the inaccessibility of statutory justice mechanisms for most women, particularly displaced women.
How Humanitarian Organizations Can Assist Women Access Justice
Raising Awareness: NRC’s experience shows that awareness-raising needs to be accompanied by the provision of support through individual counselling (legal advice) where women can discuss and weigh their options, followed by the option of legal assistance if they decide to claim their rights. It is crucial for humanitarian and development actors to provide the full complement of services to support women’s choices.
Refugee Registration: If refugee women do not have their own registration documentation they are at a continued disadvantage for future allocation of humanitarian assistance. This has a longer-term, often permanent, impact on their HLP rights.
Single Women & Female-Headed Households
Demographic changes that occur during conflict result in higher numbers of single women and women- headed households. In general, women-headed households have a higher dependency burden than male-headed households. Women are also less likely to register HLP assets in their names. Following this, women become vulnerable to losing access and entitlement to HLP upon dissolution of marriage.
The Special Rapporteur on adequate housing has stated that the independent right of women to security of tenure should be explicitly recognised in housing, law and policy programmes. This should be irrespective of their family or relationship status. It is for this reason that the Special Rapporteur notes that property regimes which recognise joint rights with equal powers between spouses best protect women’s right to adequate housing and to equality.
In its 2011 Concluding Observations on Sri Lanka, CEDAW recommends abolishing the concept of head of household in administrative practice and recognising joint or co-ownership of land. The Committee considered that the authorisation of a head of household to sign official documentation such as land ownership certificates is a discriminatory practice that prevents women from acquiring ownership of land.
Women Returnees More Likely to Be Homeless or in a Land Dispute
Women also have different experiences of HLP rights in return situations. In South Sudan, NRC found that almost twice as many women returnees as men were homeless, without access to land or secure accommodation. In Liberia, NRC’s legal assistance case analysis showed that women are more likely than men to be in a land dispute if they are unmarried, less literate and had been a refugee during the civil war. In planning for the return of refugees and IDPs, the Government of South Sudan expected that each family would return to the land of their ancestors. They failed to plan for the number of post-displacement female-headed households and those who did not want to go back to their ancestral land.
The Role of Statutory, Religious, and Customary Laws on Women’s Rights to Property
Statutory Law: Often in countries emerging from conflict, new progressive laws are enacted that reflect international standards, including guarantees of equality and non-discrimination. The Transitional Constitution of South Sudan provides an example of strong statutory protection of women’s HLP rights. However, a lack of knowledge of statutory provisions, combined with a lack of enforcement at the local level continues to undermine even the strongest statutory provisions protecting women’s rights.
While the post-conflict period can provide an opportunity to incorporate international legal standards into new national legal frameworks, in other countries where NRC works, statutory law may still be discriminatory against women, particularly in some areas of family law. For example, the concept of shared matrimonial property does not exist in Palestinian law. Overall, statutory laws offer the strongest protection for women’s HLP rights.
Religious law: Three of NRC’s country studies deal, inter alia, with the application of sharia law – Afghanistan, Palestine (Gaza) and Lebanon. Personal status laws in Muslim countries, which govern legal procedures that pertain to familial relations such as marriage, divorce, child custody or inheritance, derive from sharia. As such there is often an overlap between religious and statutory law. While sharia norms generally entail gender asymmetry, NRC’s research shows that sharia nonetheless supports one of the most important ways to acquire ownership of land and property for women. Without sharia’s strict rules on inheritance, women would receive far less or nothing at all. It is important to note that women’s rights to inheritance under sharia are an improvement on their pre-Islamic position, and until a few decades ago stood in marked contrast to the less privileged position of women in the West.
Women interviewed also had a good level of awareness of their rights under sharia, including to maintenance from their husbands, and inheritance. They had limited specific knowledge, however, of how they might protect or enforce these rights. Women interviewed generally considered that human rights awareness was valued and yielded strong, independent thinking about women’s rights yet rarely felt able to articulate or insist on these within their families. This shows that awareness-raising alone is not enough. It is vital that follow-up tools are offered to women to help realise their HLP rights.
Customary Law: Despite the fact that customary laws may contradict statutory provisions relating to equality, and that the forums themselves may put women at a disadvantage, customary mechanisms were still described by women in the country studies to be the most viable option to seek resolution of HLP disputes in pluralistic legal systems because maintaining social relations is important to the survival of women interviewed. As a result, they may be reluctant to seek dispute resolution through adversarial approaches, such as through a statutory court procedure. Instead they opt for approaches that incorporate mediation, such as some customary and religious mechanisms. This can mean an outcome that is supported by both parties, and maintains vital family ties, even if it also often means a compromise.
State and Local Challenges to Enforcing HLP Rights for Women
Incomplete Laws & Multiple Legal Intermediaries: Experience shows that rebuilding rule of law capacity takes time. Poor governance may be compounded by incomplete laws detailing policy and procedures for dealing with HLP disputes and failure to clarify the local interface between statutory, religious and customary mechanisms, creating jurisdictional confusion. In Liberia, cases can be heard by the Civil Law Court, the tribal “courts” of the Ministry of Internal Affairs and the Probate Court. In principle, tribal courts have jurisdiction over matters related to custom, including customary marriages. In addition, a number of different organisations offer collaborative dispute resolution for property related matters.
Enforcement: In the countries where NRC works, enforcement is particularly challenging in the case of legal rulings for HLP disputes. In South Sudan, a general lack of enforcement mechanisms at the community level, including awareness of these laws, has further weakened the application of provisions protecting women’s HLP rights. Despite being successfully awarded ownership of demarcated plots of land, women had been unable to access and use the land due to illegal occupation, by soldiers, government officials or wealthy men with power and influence in the community.
Social Norms: Despite the billions of aid dollars channelled to strengthening post-conflict justice mechanisms and in working with national authorities for rule of law service development, these interventions often fail to address social attitudes and norms that undermine legal protection. For example, in Palestine in traditional Bedouin communities, women cannot travel alone without the permission of a male relative, which can make it difficult for them to take an active part in court proceedings and engage with their lawyers. Several women lost their land and property because of this social norm. NRC decided to address this issue by hiring a female lawyer to visit these women so they can sign a power of attorney document to enable the lawyer to act on their behalf.
Family Relationships: For many women in the countries where NRC works, family relations are critical for women’s survival – not just their livelihoods but also for their personal security. Filing an inheritance lawsuit against family members has an impact on a woman’s domestic and daily life. Women claiming their HLP rights can be seen as causing social disruption in more conservative contexts where NRC works. This can expose them to the risk of social ostracism, and possible retribution and violence, from the broader community. It can act to deter women from bringing a claim in the first place or to abandon a case.
NRC’s analysis concludes that the effect of social norms and the risk of consequences for women claiming their rights remain unexplored in humanitarian programming. NRC’s country research shows that more needs to be done to empower women to tackle discriminatory social norms that prevent them from claiming their HLP rights.
Financial Constraints: Even in situations where women are legally entitled to own housing and land, financial constraints make purchasing these assets impossible. Poverty and lack of financial resources often prevent women from making a claim. Women may be dependent on others for transport, finance and childcare in order to be able to access justice.
Practical barriers arise for women where their socio-economic disadvantage means that they experience increased difficulty at every step of the justice process – when they are unable to pay court fees; when they are unable to travel to court; when they do not hold a personal identity document or HLP documentation; and when they are unable to engage in land sector reform interventions. There may be additional costs associated with addressing an HLP claim. Identification, allocation, demarcation, surveying and registration of land all incur additional costs, such as a legal fee, and in some cases a bribe.
Inheritance Laws: Poverty in these households is significantly exacerbated when gender-biased inheritance laws deprive women of access to the property of a deceased or missing spouse. Inheritance is fundamental for the accumulation of assets, including land, yet often women and girls have fewer inheritance rights than men and boys. Conflict exacerbates this inequity. When women also happen to have insecure tenure – as they often do because their access to housing and land hinges on a relationship with a man, or because they face additional hurdles as sole head of a household – they are particularly vulnerable.
NRC’s research found that during post-conflict recovery, women’s access to HLP, including through inheritance, is essential for their livelihoods and security. This has been directly linked to reducing women’s financial dependency and, therefore, vulnerability to violence. In all countries where NRC works, land is a vital part of livelihoods; not only related to housing, but also for agricultural purposes and can provide an income for the woman and her family. Thus there are major long-term consequences for gender equality and human rights that follow from the post-conflict denial of HLP rights for women. Despite this, women’s economic security post-conflict is rarely treated as a priority.
Illiteracy:Even where women have HLP rights protected in law a major constraint is that women (and men) are often unaware of their rights. Low literacy levels further impede women’s knowledge of the law and their ability to claim their HLP rights. It also affects their ability to complete applications for assistance and to participate meaningfully in land allocation processes and other transactions involving written documentation.
In the country studies, lower literacy and education levels were also cited as a factor contributing to women’s increased susceptibility to being cheated in land registration or purchase. Illiteracy compounds displaced women’s lack of understanding of key processes relating to the acquisition of land and housing rights as well as their ability to address disputes. For example, in South Sudan illiterate returnee women who did not understand government land registration processes were on occasion encouraged to sign away their demarcated plot during the registration procedure.
Reinventing the Rules 