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International Peace Research Association (IPRA


Author(s): Jon Unruh
Source: International Journal of Peace Studies, Vol. 15, No. 2 (Autumn/Winter 2010), pp. 89125
Published by: International Peace Research Association (IPRA)
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InternationalJournalofPeace Studies, Volume15, Number2, Autumn/Winter






Jon Unruh
land rightsin war-tornsettingsare amongthe mostdauntingchallengesof peacebuilding.
of a weakenedand chaotic
land tenuresituationsare unique settingsin theircombination
system,vigorous very
in the
and influence
carriesrisks,it also represents
or recovery.
successof any improvement
in theformal customary
forpracticaland policyreform
and reformefforts
In thisregardthestatutory
to durable
peace. This has the advantageof working'withthe grain/and buildingon what has alreadybeen
tenuresystemas theformallegalsystemis being
and acceptedwithintheinformal
reformed implemented opposed expectingpeople to disengagefrombindingcustomary
involvingland whenimprovedformallaws are finallyenactedand enforced.
difficulty volatility
however,new policycan supportwhat people are alreadydoing,and engagein on-goingissues of
proofof claim,and the role of land and propertyin economic
to addressland and property
settings, laws havetheopportunity
development. post-crisis
ofwhatpeoplearealreadydoing'on theground',witha viewto movingfromthefluidity
in thecontext
as an outcome.Positive
and peacefulsocialand legalenvironment
to a moresolidified
discussesthe primary
and thenincludesbothpracticaland policyoptions
landrightsin war-torn
in15 war-torncountries.
them.Thepaperdrawson theauthor'slandtenureexperience
Secure rights to land is important to the development of economic activities,
capital accumulation, food security,and a wide variety of other socioeconomic benefits.
It is generally thoughtthat secure land rightslead to increased investmentsin land and as
a result, greater agricultural production and subsequent wealth generation and
development. However, most civil institutionscannot endure the stresses of large-scale

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Land Rightsand Peacebuilding

unresolved land conflicts in society. Countries affected by or threatened by such
problems usually lack the political and institutionalcapacity to resolve such a magnitude
of land rightsproblems. This is especially the case where rural land rights issues are a
fundamentalunresolved problem in society. If not dealt with, such problems can lead to
an accumulation of aggressively confrontational ways of dealing with land rights
problems which then emerge froman increasingly divided society. The result is a buildup of competition, inequity, confrontation,grievance, resentmentand animosity; with no
legitimate,fair way to manage all of these througha country's legal system. While there
are a variety of factorsthat can be a part of a land rightscontributionto periods of crisis
(such as resource scarcity,poor land access, governance and political problems, identity,
geography, history, ethnicity,grievance, religion), many countries are able to establish
legitimate and fair institutions1to manage these; while those countries that are affected
by very large numbers of unresolved conflicts are not able to do this. For such conflictaffected countries the problem is more complicated and difficultbecause alternative
informalinstitutionsand approaches (such as warlord or mafia forms of land tenure, or
extremistreligious approaches to land rights) can emerge fromthe absence of effective,
legal institutions.These alternativesare able to operate within the fluidity,confrontation,
and grievances of land conflict-riddensituations. Such crisis-based alternative informal
institutions,which often belong to specific segments within a population, usually do not
function in a fair manner in the context of broader society, and so ideally should be
replaced or reworked. But because such crisis situations2 are very differentthan land
tenure situations in stable, well functioningpeaceful settings, land tenure solutions in
such situations are also different.What may work well in stable, peaceful settingshave
proven extremelydifficultto implementand operate in societies affectedby or threatened
by pervasive unresolved land conflicts. In such difficultcontexts, differentinterventions
are needed in order to be able to: 1) work within a conflict-pronesetting; 2) meet shorttermland rightssecurityneeds; 3) use land rightsas a tool in recovery or improvement3;
and 4) transitionto more stable and conventional land rights arrangements.This article
considers the role of large-scale conflictive land rightssituations and how these are both
problems and opportunitiesforconflict affectedcountries. The paper focuses on the most
commonly encountered problems associated with societies prone to conflict over land.
The article provides an indication of what interventionsare most appropriate for certain
types of problems, and provides examples of these.

Framework of Challenges and Approaches to Land Rights in Conflict Settings
This section provides an overview of the primary challenges and associated
approaches to land tenure in conflict scenarios, which are then elaborated in more detail
in the subsequent sections of the paper. The overview takes the formof a general outline
frameworkso as to be able to consider the challenges togetherwith the approaches to
resolving them. For each of the primarychallenges, the crucial elements are brieflylisted,
followed by a similar listing of relevantapproaches.

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Forms of legal pluralism that are opposed. • Out of date laws. • Legal actions (decrees. confrontational. and insurgent. Avoidance of overt support for warlord forms of tenure and their authorities. including violence. dysfunctional. Undergoes profound change due to armed conflict: disarray. competing.118 on Wed. • Institutionalreform. Avoidance of spatially explicit formsof support. warlord.176. corrupt. • Grievances. segmentationand internaldistrust. The breakdown of institutions. The need to avoid downgrading customary law so as to promote statutoryapproaches in theirstead. • Land disputes not resolved. or add confusion. inabilityto provide services. rulings) targetingspecific problems. discrimination. of questionable legitimacy.5. • Can be crippled. Approaches • National land policy reform. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . can detract from peacebuilding. Customary rights Challenges • • • Approaches • • • • Legal Pluralism Challenges • • • Can exist in a state of considerable tension with statutoryand other customary formsof tenure.and formationof multiple alternative ways to do land tenure.favouringone or a few villages or communities in disputing. low capacity.JonUnruh 91 Formal statutory rights Challenges • Poor statutoryarrangementscan contributeto the cause of conflict. The need to avoid re-imposing pre-war problematic statutoryland laws where customary tenure is re-emerging and working effectively. and radicalized politics. How are formsof legal pluralism which emerge and change quickly This content downloaded from 168. Lack of institutionalapproaches to resolving tenure problems leads to a search for alternatives. incompatible.

The opportunitiesin 'forum shopping'. Incorporate customaryformsof evidence into statutoryapproaches. Addressing capacity imbalance. Including mechanisms and timeframesforreintegrationof areas held by insurgentforces. The evidence problem. The role of mediation. This content downloaded from 168.176. Relaxing formalevidence rules forclaims and disputes.118 on Wed.5. Disputes involving public lands. Historical injustice.taking sides. Utilizing natural change in legal pluralism fromforumshopping to formsof appeal. Private propertydisputes. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions .92 Land Rightsand Peacebuilding • Approaches • • Land Disputes Challenges • • • • • Approaches • • • • • • during and after war to be connected with the slower moving statutorytenurereform. 'unpacking' land issues into those to be dealt with in an accord and those to be parked until later. customarydisputes. • Reintegrationof lands into a national tenure system. Parking issues in land commissions: thirdpartysupport. Deriving workable formsof evidence forclaims and disputes. • 'Parking' certain land issues until aftera peace agreement. Approaches • • • The role of valuable lands in peace negotiations. Peace Agreements Challenges • The importance of third party mediators being well versed in the country-specificland issues. Statutoryvs. Avoidance of third party intervention in land disputes. The large roles of grievance and legitimacy in the emergence of legal pluralism.

Unruh. The reduction of state power. discriminatorypolicies. with the fluidityof armed conflict often offering 'open moments' or opportunities for groups who desire to redress historical injustices involving land. the listing here is intended to provide an indication of the type of factors importantin determiningthe post-war land tenure situation generally.176. land confiscations. large changes in the existence. identity-related attachmentsto specific land areas which may be connected to the currentconflict or not. documents and otherfeaturesimportantto claim recognition. and. Finally. In brief these determinantsinclude: the large-scale dislocation and then returnof refugees and internallydislocated persons. the destructionof properties and the boundaries. Both were able to field theirown mechanisms of enforcementfora varietyof institutions.JonUnruh 93 Primary Land Rights Challenges in a Conflict Context This section describes the most prevalent challenges facing war-torn countries attemptingto reconstituteland and propertyrights systems. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . 2002. crowding. the emergence of the Taliban in Afghanistan. land speculation. the lack of legitimate and workable alternatives. inheritance. and the presence of weapons combine to provide for violence as an alternativeway to resolve land disputes. Prior to the examination of these however it is worthwhile to list some of the factors which are influential in determiningthe nature of these challenges. Unruh. transfer. 2008). including land tenure(Unruh. arguably. and disappointmentor distrustin the way a post-war state handles land issues.5. Such was the case with the eventual emergence of Shari'a courts in Somalia. Formal (statutory)Land Rights in Conflict Contexts The varietyof poorly functioningstate (otherwise known as 'formal') land tenure institutions and processes that cause land conflicts is significant. having been previously extensively covered (Leckie. legitimacy and institutional ability can lead to a search for order. These range from legalized forms of eviction. value and workability of forms of evidence and proof for claims. Such a situation can also lead to a land tenure contributionto armed conflict. While a discussion of the factors which determinethe nature of tenure systems in war-related settingsis beyond the scope of this paper. the partial or complete collapse of both customaryand formaltenure systems and the services they provide due to the inability of most civil institutions to endure the stresses of armed conflict. often results in profound change in forms of tenure and its constituent parts: claim. and are often highly This content downloaded from 168. acute tenure insecurity.demarcation. the spatial aspect of both armed conflict and land tenure and the reality that both are about spatial-social relations. allocation.and corruption in court procedures and court access. 2008. Unruh. 2002). Such dysfunctional statutoryland tenure systems in developing countries can be rife with micro-level generic disputes that do not get resolved.and adjudication. restitution. Often the accumulation of land-related grievances.118 on Wed. 2006.

and personnel. in many cases. government organizations. can be much strongerthan any currentor even any new statutorylaws.118 on Wed. the statutorytenure system generated an accumulation of rural underclass land related grievances that resulted in a crisis of agrarian institutions(Richards. legitimate. neglected. be weak and of questionable legitimacy in the eyes of many in civil society.At times they can constitute. This in turn can produce a 'black market' in land and properties. The resultingpost-war land tenure situation. and equitable institutionsand approaches (Sawyer 2005). In countries threatened by factional conflict. and the degradation of the institutionswhich are responsible for conducting and enforcing formal land rights procedures. land grabbing in Liberia by powerful urban and rural elites operated within an out-of-date. b) also allocated under customarytenure systemsto smallholders.IDPs. The legitimacy of the formal land tenure system can be furtherreduced in war-related situations because of the system's connection to the state if the governmentis part of the war which is very often the case. or reasons for claiming lands) that are oftenattached to the differentsides in the war. local distrustof the state was significanteven when the insurgency won and went about establishing a governmentand policies regarding land. formalpolicy support of ethnic cleansing. such evidence is also often incompatible or opposed. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . In a wide variety of developing countries the statutoryland tenure system is crippled and is thus exposed to abuses and non-compliance.176. This is especially truewhen the state attemptsto disseminate and This content downloaded from 168. As a result. the result was the production of deep animosities regardingland thatwere not resolved by the signing of the peace accord that officiallymarked the end of the Liberian conflict. 2005). The result is a lack of land conflict resolution institutionsable to handle these differentformsof evidence.94 Land Rightsand Peacebuilding discriminatory.inheritanceand etc. c) also be occupied by large numbers of migrants. the departure of personnel. insecurity in parts of the countrycan furtherreduce the capacity and legitimacy of the formaltenure system at a time when land tenure securityproblems are a growing concern forlarge numbers of people over extensive areas. Over time. is one in the Balkans. a) the formal tenure system can be used by elite land intereststo gain access to land that is. the informal non-state rights and obligations that have been created and used to facilitate land and propertytransactions. Yet another problem is that in countries with poorly working or dysfunctional land tenure systems. which essentially functions as its own tenure system. but that can. As a result land disputes in the country continue to be volatile (Unruh 2009). As these differentgroups use differentevidence (forms of proof. In post-war Zimbabwe. Coupled with the inability of the non-elite (primarily disaffected youth) to acquire and maintain control of land.5. In Liberia prior to the war. and low-capacity of state land and property institutions. results in a reduction of resources. At the same time poor governance precluded the peaceful derivation of alternative. The corruption. especially in high value resource or important areas. and ex-combatants seeking to legitimize their occupation either temporarilyor permanently.conditions are such thatthe state will. and discriminatorystatutorytenure system. because local chiefs were purposefully left out of the new state due to their alliance with the Rhodesian administration.

The effectsof dislocation.and desperation all bring change.e.crisis-wearypopulations.with no institutionto resolve them legitimately. or oppose other forms of tenure. political/policyproblems.deprivation. An additional problem is when customary tenure itself degrades. battlefieldgains and losses. land claim. This was a primary contributorto the wars in Sierra Leone and Liberia. warlords. changes in power relations within customary society. And again. or becomes abusive and there is a reaction to this by the wider customary population. indigenous. the evicted. food insecurity. This creates what is known as 'legal pluralism' (different laws. and instead more connected to the crisis-related experiences of squatters. with little ability to provide for the institutionalland needs of a customary population.To the extentthat a recovering customary tenure system sees itself as competing or confrontingthese post-crisis tenure alternatives. serious problems can emerge in reconstitutingeffective rule of law with regard to land tenure. alliances with one side or another in a larger conflict (forced or voluntary).e. international.and territorybound up in This content downloaded from 168.and yet importance of seeking secure access to rural lands in situations of low state and/orcustomary capacity or duringperiods of crisis results in the emergence of many norms or 'ways' for attemptingto legitimize and defend land access. one tribe's tenure systemversus another). Divisive tenurerelationships between customary and othertenure forms. the impoverished. combatants. and opportunists in and outside of government. Often customary tenure can develop to resist. property. The effectaftera crisis can then be a customary tenure system in severe disarray. there can emerge a wide variety of alternative or hybrid approaches to claiming and securing lands after a national crisis.95 JonUnruh enforcingsuch laws with agrarian. can cause or contributeto acute conflicts because alternative informal ways of resolving land rights problems are then sought. or tribal land tenure) in many areas of the developing world frequentlyexists in a state of substantial tension because it often operates in conflict with other formsof tenure. land use and resolve disputes.statutory. Informal (Customary) Land Rights in Conflict Contexts Customary land tenure (also known as traditional.for different peoples) about land to become very developed-with differentsets of rules regarding land. migrants. including violent means. Islamic law).statutory and customary. Whatever its state prior to a crisis in a country -such as war. with repercussions on both customaryand statutorytenure. These can often be less directly connected to customary tenure systems..176. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions .customary tenure during almost inevitably undergoes change as a result of the crisis. refugees. collapses. IDPs. confrontation. evade. Legal Pluralism in Conflict Contexts The breakdown or lack of institutionsable to effectivelyhandle land rightsissues can allow for opportunities to reconfigure certain land tenure arrangements to more closely suit the needs of particular groups and situations.118 on Wed.religious. The confusion. competition. and other forms of customary tenure (i. alternative authoritystructures(i.5.semi-literate. natural disaster.

The end to a war can see legal pluralities regarding land brought together in competition and confrontationin a peace process.176. Legal pluralism in post-war land tenure: formal and informal. The development of legal pluralism for land tenure is very common afterperiods of armed conflict for example. norms. opposed. The problem becomes how to connect this comparatively slow-moving process (statutory legal recovery) with the much quicker and more fluid behaviour of the formationof norms. Informallegal fields are representedon the rightby the various dotted lines. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions .118 on Wed. and lawmaking pursued in ways that presumably encourage legitimacy among the population at large.96 Land Rightsand Peacebuilding the reasons for a crisis itself. This will especially be the case where land issues are a big part of the cause and maintenance of a crisis. Forms of legal pluralism are developed 'on-the-grounď and 'as needed' by the population at large (often relatively quickly). This content downloaded from 168.). etc. and are connected both to wartime and pre-war experiences and group membership (tribes.5. Formal law is representedon the leftby the solid line (and the processes contain within). The 'spark' symbol representsconfrontationbetween legal fields. comprised of people with similar experience. personnel trained. In such a situation. This occurs as the postwar activities of large numbers of people become focused on reaccess to properties and land very quickly. Figure 1.or informal'legal fields' fordoing land tenure (Figure 1). or add confusion and tenure insecurityto a population can seriouslyjeopardize any attemptsat improvementor recovery. dispute resolution institutions)because the very large number of disputes and the lack of legitimate mechanisms to resolve them have made such featuresunworkable. legal pluralism for rightsto land that are incompatible.statutorylegal land and propertyreformafterarmed conflict is costly and timeconsuming. or they believe there is littlepoint in following tenure rules that others are not following. competing claims can result in people abandoning features of pre-existing tenure systems (laws. This heightened interactioncan result in a very fast development of legal pluralism. As access to land is attempted with a great deal of urgency during this time.religious groups. In contrast. because numerous institutionsmust be rebuilt.

At the same time. Hanlon.118 on Wed. and 4) as a response to grievences about how the state handles land tenure. such a situation can be seen as a rare opportunityto regain historical lands priorto the solidification of peace. While this can be particularly true for those belonging to or sympathetic to insurgent factions. Mozambique provides an example where the RENAMO insurgency.176. the reduction in legitimacy for those either neutral or sympathetic to the state is primarily tied to the state's reduced capacity to administer the formal tenure system (Unruh. During Mozambique's REN AMO war.In some cases. or re-occupation. so that the pursuit of a 'return'to historical lands or territory. the considerable reduction in the capacity of the state to administer land allowed not only the RENAMO opposition. First. Second. The role of legitimacy in legal pluralism The importance of the legitimacy4 of land claims and tenure systems influences the creation of legal pluralism in fourways. Such justification can gain renewed strengthduring armed conflict or other formsof crisis. 1977. and provided their own paramilitary enforcement of this access. notions of legitimacy for claims to land can combine with identity and involve the justification of claims based on historical occupation which can be supported by oral histories about how various peoples came to exist in an area and in the world (Comaroff and Simon.then making separate arrangementswith the RENAMO insurgency for access to tracts of land. Third. Unruh. 1997). of lands formerlyseized by the state or commercial interests. formsof land tenuremay be created which are directly connected to an armed opposition or insurgency which is then made legitimate by direct militaryoccupation of lands and militarystrength(Vines. many communities in Mozambique who were not dislocated refocused their attentionon their own traditional ways of land access.from which groups were expelled or departed recently or long ago . 1991). and again armed conflict and a peace process provides a good example.. Unruh. 1997. In some cases this allowed the occupation. but also a variety of groups to exert alternative approaches to land access and use.can become a priority. Several commercial interestswith internationalbacking also derived theirown approaches to land tenure by obtaining official land documents fromthe government. (3) as areas taken over by an opposition group purposefullypursue approaches differentfrom or opposed to the state.duringthe war and the subsequent peace process. 1996. This included taking over land occupied by customary groups.5.regarding these as This content downloaded from 168. dropping any recognition of state land administrationthatexisted prior to the war. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions .JonUnruh 97 In general the derivation of legal pluralism in land and propertyrightsin conflict contexts can occur: (1) as a need to derive an arrangementthat works locally in the absence of functioningstate institutions. 1997).(2) in the context of a resurgence in the use of traditionalnorms in certain groups (frequentlytied to identitysuch as tribes or clans). there can be a reduction in the legitimacy of the formal statutoryland tenure system for much of the population. both reallocated land to local people as a way to gain support and at the simultaneously turnedaway those who had been issued land concessions by the FRELIMO government.

In this case. once developed. In Zimbabwe's liberation war (Alexander. Such grievances can range fromsimple disappointmentto distrustof the state and its ability. Variations of such grievance-based conditions also occurred in the wars in Central America and problems in southern Mexico. 1998. an end to land taxation. And animosities tied to historical events also have played a fundamentalrole in the ethnic cleansing of lands in the Balkans. and political and economic autonomy. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . which of course were not regarded as legitimate by the FRELIMO government. significant grievances surfaced as a result of government villagization programs.willingness. and heavy-handed approaches to enforcement of state decisions about land issues. In both Mozambique's RENAMO war and Ethiopia's Derg war. can persist with considerable stubbornness. The latter can be especially powerful if an accumulation of land-related grievances exist against the state due to land alienation and discrimination.5.corruption. land grievances had been at the core of Salvadoran frictionsince the colonial era and constitutedsome of the primarycauses of the conflict in the 1980s.118 on Wed. The role of grievance in legal pluralism " The role of grievance in contributing to legal pluralism is important. or bias in handling land issues to the perception of the state as the enemy. 1988). the process of the formation of legal pluralism for land was very strong. This content downloaded from 168. 1993). 1999) and the emergence of the Taliban in Afghanistan are examples. 1992). 1993). by justifying themselves with appeals made to perceived historical wrongs done to certain groups (Merry. dislocating agricultural and/or population programs. which can become especially acute if such grievances merge with other issues not necessarily related to land. This has also been a fundamentalpart of the situationin Somalia. As noted previously the Shari'a courts in Somalia (UNDP-EUE. RENAMO reallocated land to smallholders for the purpose of its own food supply and issued its own concessions fortimberand other resource extraction activities. the insurgentsprovided guaranteed land access. In the latterexample. and in the way the land issue has been handled over the course of the conflict between the Palestinians and the Israelis (Cohen.or state interventionin agricultural production. where disputes over resource access such as grazing lands and water resources merged with a history of perceived wrongs done to clans and sub-clans on issues not necessarily related to land. Fourth. Such an accumulation can result in what Ranger (1985: 1) calls a "historical consciousness of grievances" with land rightsissues. An accumulation of grievances in a population about 'unjustness' in the way the state deals with land rights. legitimacy in a tenure system can come about as a reaction to the insecuritygenerated during armed conflict or other crises and the desire for the returnof some form of legitimate order in society. For example. land confiscation and the way it occurs for Israeli settlement-buildinghas been a significant grievance-based feature of the overall problem (Holbrooke. Cohen. This was also the case in Zimbabwe's liberation war regarding land expropriations by the Rhodesian state.can constitute an importantforce in the reduction of state capacity in land issues. plural land tenures.176. In such cases.Land Rightsand Peacebuilding 98 illegitimate.

Statutoryversus customarydisputes One of the most common types of disputes in developing countries is between people belonging to customary tenure systems versus those belonging to statutorytenure systems. Formal land dispute resolution used by the state favors claimants in possession of some formof documentation-which most smallholders do not have. the fairly rapid emergence or returnof a variety of alternative forms of doing land and propertyrights. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . formal legal decisions in a land dispute often must be based on the evidence presented. In crisis situations those in positions of power can try to take advantage of these disrupted systems to initiate and win in a land dispute. based on admissible formsof evidence. 1992). Customary approaches for land dispute resolution value membership in local lineages.particularlywhen the ideology. While documents are commonly admissible forms of evidence. Apart fromthe evidence problem noted above.this evidence is communicated (attested to) orally and not with a state issued document. formal dispute resolution decisions are often made in favor of documentation.176. Such a seemingly unfair and illegitimate approach to land dispute resolution. tribes and communities as the most valuable forms of evidence. and the source of customary evidence is the local community or lineage. oral testimonyusually is not admissible. together with a low capacity government. both of these systems will likely be quite disrupted during and after a crisis or in situations of low administrative and institutionalcapacity. Generally the This content downloaded from 168. This is evidence that statutoryor 'outside' parties to a dispute do not have.118 on Wed. Further. testimony from lineage and community members about the historyof land use and land occupation is very valuable customary evidence. with history of occupation and physical signs of occupation being among the most common evidence for this connection. Thus. Large-scale disappointmentin governmentcan manifestitself in differentformsof local land administration. Instead.with the speed and direction of this emergence connected to the type of grievance feltby a particular group and how this intersectswith land tenure needs. especially in crisis or low capacity state administration contexts. smallholders use an array of locally derived customary evidence which connects them to a communityand to community land. and not the state.5. However. or if it is then it is of secondary value. can produce serious risks of instability. Land tenure disputes The evidence problem Many land dispute problems in the developing world often begin with a more fundamental evidence problem between formal and customary tenure systems. and aspirations of acutely felt land tenure needs and grievances become acute in the minds of many. and a state administrationcan findthat it has limited influence (Alexander. mobilization.JonUnruh 99 The overall effect of such mistrust or grievance. from the perspective of customarysmallholders.

or retake historical lands which also have claims based on documented title. customary claims are frequentlynot recognized by statutoryauthorities.118 on Wed. the introductionof alternativeformsof evidence forclaim. tryto access new lands. including loss of documents. fraudby falsificationof documents or alteration of documents. 4.legitimacy.destruction.copying. destruction. However if the way This content downloaded from 168. For example. The incompatibilitybetween statutoryand customary land tenure systems is based on very differentlogical ways of doing institutional. 5. While incompatibilitybetween customary and formal tenure systems is common even in non-crisis situations in many countries. Particulartypes of disputes in this context can result from: 1. loss of clear customary land markers. Private property disputes The breakdown of statutoryland tenure institutionsand procedures duringtimes of crisis or low government capacity leads to specific problems for private property. 3. along with the loss or change of formsof evidence to support claims. These causes of disputes can also involve opportunitiesto retake private land that was previously sold. sources of authority. or if they were occupied or otherwise protected during the crisis. destructionor neglect of boundary markers. and falsifyingdeeds. certain inheritanceoutcomes. and to establish or re-establish new boundaries under contested or unclear circumstances. and the non-recognition and nonworkabilityof evidence and institutionsfor delivering fairoutcomes and the enforcement of outcomes. engage in private propertyclaims that were not possible under precrisis conditions.non-occupation of customary locations.Not recognizing the tenure system that is not one's own can be a large part of this incompatibilityand has to do with not recognizing claims. 2. This occurs primarilyas.authority.and the reverse is also common. and lack or absence of customary and statutoryauthorities. or deteriorationof land and propertysurvey documents. it is especially difficultin countries that are in crisis.5. legitimized violent evictions or violent claims to lands.100 Land Rightsand Peacebuilding biggest problems of this dispute type will be about the numerous formsof incompatibility between the two types of land tenure systems.176. and claim aspects of land tenure.or institutionswhich administer land in other tenure systems. 2) land and property speculation and fraud able to take advantage of the crippled formaltenure system occurs-this can include reselling the same land numerous times.loss. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . legal. or very quickly reoccupied subsequently. 6. and alteration. This is complicated by the breakdown of institutionswithin both customary and formal tenure systems during a crisis. titles.or otherpropertydocuments. 1) dislocated customarypopulations attemptto re-access lands. Often problems can be less if private propertyclaims have been held for a long period time prior to a crisis.

This can clash with those attemptingto retake lands or claim such lands through squatting. 2. then the reasons fornon-titleor deed holders to take or retake private holdings during and aftera crisis can be many and acutely felt. or take a long period of time. As noted earlier. Historical injustice The pre-crisis grievances of the 'unjustness' in the way the state deals with land rights for portions of a population can constitute an important aggregate force in aggressive. 3. before theybecome a widespread problem. this was a fundamentalpart of the decline of the Somali state in the early 1990s. the perceived opportunityto retake lands by those groups and communities who feel they were unjustly displaced or deprived of lands that ended up under the state's control.5. 4. Disputes Involving Public Land Public lands can be particularlyvulnerable to disputes and claims during and aftera crisis due to. particularlyif the crisis was armed conflict. diplomatic. with outcomes resulting in considerable This content downloaded from 168. versus who needed to be 'cleansed' fromcertain areas. or due to gains made by one group or another duringthe crisis. Pre-war ideas of injustice regarding land and propertycan become especially difficultif they became connected with other issues. the use of public lands as IDP locations duringthe war.118 on Wed. recovery. Also noted previously was the role that animosities tied to historical injustice played in ideas about who had legitimate access to what lands and properties in the Balkans. a weakening of the government and its ability to enforce its claims during and subsequent to a crisis. and commercial interests can be placed. confrontationaland violent means to correctperceived wrongs. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . adverse possession.or in otherwordsattendingto the underlyingaggravating causes noted above.JonUnruh 101 that private propertywas acquired or administered prior to the crisis period was seen as broadly unjust. peacekeeping. The social fluidityof a countryrifewith land conflicts then allows for the opportunityto act. This highlights the valuable role of prevention. In such circumstances the opportunities for quickly and fairlyresolving numerous disputes like this can be few. or the areas or numbers of holdings were large and they displaced previous inhabitantson a large scale. At the same time public lands can be one of the firstlocations where post-crisis development. the governmentinstead of certain groups or individuals having previously claimed it. when disputes over access to grazing and water resources connected up with a history of perceived injustice perpetratedby the state on particular clans. serving to furtherdecrease the state's influence in a crisis period. and this can be facilitated by government assertions that such lands are state controlled.176. 1.

176. If well considered however. the resources they contain.however this has been known to occur. The other role land can play. in order to allow compromises to take shape.' This insurance is essentially something that can be used advantageously if the negotiations or the agreement fails. How land issues interactwithpeace agreements Land issues can play a large role in peace agreements and in the run-up to peace negotiations. is usually always a failure. become by necessity. Due to the complexity associated with attemptingto bring successful conclusion to an array of land and propertyissues duringpeace negotiations. is that of insurance. the disarmament and demobilization process is a very high priorityin a peace process.thirdpartynegotiatorscan This content downloaded from 168. topics in peace negotiations and agreements. particularlylands taken throughgains in battle. and their reintegrationand governance. Certain powerful interestscan spoil peace negotiations if they believe they will lose control over certain high value land resources as a result of a peace agreement. As a result.which are control over lucrative lands or land resources. thirdparty peace mediators can view land issues or certain land areas (especially those containing valuable resources) as 'bargaining chips' thatcan be used and negotiated away if need be. In this regard the differentparties in a negotiation usually desire to keep eithertheir weapons or the land they have come to occupy. This is not to imply that land allocations necessarily be given to combatants or their leadership to encourage their participationin negotiations. unresolved land tenure problems can result in a large upsurge in land disputes and aggravated tensions and confrontationover land.the land controlled by the differentsides. Such problems can cause considerable volatility.5. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . for how long. can be seen as the less difficultoption. In this regard. Armed factions can often be unwilling to participate in peace negotiations without some form of 'insurance. such that having combatants keep the land they occupy at the time of negotiation.and not attendingto them can make a peace process and recovery much more difficult.118 on Wed. particularly for light weapons. As the reason for derailing a peace negotiation can be based on greed. there are opportunitiesin war-affectedsituations forusing land tenure as a peacebuilding tool.Land Rightsand Peacebuilding 102 volitility Land Rights Issues in Peace Agreements In post-war scenarios. While complete disarmament. and for making improvements over what existed prior to the war. Often there can be a surge in battlefield activity in the run-up to peace negotiations because the ceasefire that frequentlyprecedes negotiations can stipulate the differentsides in the war will retain control (for an undeterminedperiod of time) over the land areas they occupy at the time of the ceasefire. the public reasons for scuttlingnegotiations may have littleto do with the real reasons. Bringing such latodsback into a national formof governance and land tenure system during the years after a peace accord is then a significant challenge.

However. Land policy reformafter crises (and especially after wars) is an involved process. the Arusha Accords (Burundi).explicitly address HLP [Housing. Mozambique. and so need to be reformed. government. and the currenttrendin peace agreements is to have land and propertyissues included. 3. As attemptingto sort throughsuch issues in negotiations can be seen as too risky. refugees. even well functioningand just land and property laws are usually not able to handle the particular problems that a countryin a crisis context (including crisis of governance) must endure. or put on hold. and so old laws are amended. 1. There are threeprimaryreformresponses to land and propertyproblems connected to the statutorysystem. peace agreements can provide a unique opportunityto include solutions.have been criticized forthis serious oversight.103 JonUnruh thinkof these as too difficultto include in what are already sensitive. legal actions aimed at specific problems. Second. and new laws are enacted.Conversely. land issues can sometimes be left out of the negotiating agenda. El Salvador.) and is usually undertaken by a consortium of donors together with a governmentwho does not have the capacity to undertake such an endeavour itself.176. Kosovo. IDPs. ex-combatants. as Leickie (2008) notes: .118 on Wed. Liberia. Land policy reform Land policy reform includes a broad-based process of consultation with affected communities and sectors (villagers. broad national land policy reform. There are two reasons forthis.5. 2008) than they are with a country's land and resource tenure issues. needing a This content downloaded from 168. increasingly HLP rights. institutionalreform. and agreements concerning Guatemala. This can especially be the case where thirdpartypeace mediators are more familiarwith issues of ceasefires. 2.etc. agreements that in hindsightdefinitelyshould have included specific HLP provisions. Sierra Leone. Tajikistan and others . the clearing of land mines. but did not . and proposing futureforms of governance (Leckie. or because the individuals at the negotiating table themselves are known to have vested interestsin the outcome. Sudan. lengthyand tense negotiations. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . Practical Responses to Challenges Statutorysystemof propertyrightsin conflictcontexts In many cases land related laws must undergo some formof reformin situations of low state capacity or in crisis in order to effectivelydeal with land particular the 1991 Cambodian peace settlement. commercial interests.the [a] range of contemporary peace agreements Dayton Accords (BosniaHerzegovina). often with volatile consequences. First as noted above problematic land tenurelaws often contributeto the onset of a crisis. Land and Property]issues and.

albiet with less scope than national land policy reform. and 3) the cancellation of certain categories of concessions due to fraudulentacquisition. East Timor has had some success in working with decrees prior to the implementation of post-war land and property laws. Liberia's experience with the problem of adverse possession (uncontested occupation fora period of time results in legal ownership) dealt with the question of whether or not the war-timeand post-war periods should count as part of the period of 'uncontested occupation' needed for ownership claims via adverse possession. involving 1) whether or not Portuguese colonists or their descendents would be able to returnto lands. CIDA. and to validate or invalidate specific forms of claims that are proving destabilizing. Both Liberia and Mozambique have had positive experiences with this tactic.176. World Bank.In such a situation. And Mozambique dealt with whole categories of problematic land claims issued before and afterits war. Rendering legal decisions that affect or resolve an entire category of land and propertyclaims and/ordispute problems. Examples of such actions include: a. or may be about to claim. coordination. This affected squatters in long-term occupation situations but also returningcommercial interests and individuals with titles to valuable real estate who fled the war early on and were returning. and then terminated when the objective is obtained. Legal decrees that focus on specific society-wide land issues and are quickly derived. be replaced by more robust formsof law later. It is generally beyond the mandate of the UN to carry out such a multi-faceted reform process alone. 2) the need for concession holders to reapply under new rules that included more adequate interactionwith local communities. USAID. and collaborators in the internationalcommunity are usually sought for both capacity and financing. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . i. then powerful interestscan seek to violently evict squatters who are claiming. etc. Decrees can be used to temporarily manage land speculation. enforced. and more easily achievable with UN in-countrysupport. The Sirleaf administration in Liberia cancelled all of the forestryconcessions as a legal decision due to pervasive fraudulentacquisition and the societal instabilitythis causes. disseminated.Land Rightsand Peacebuilding 104 good deal of capacity building. if there is no clear legal ruling on the issue. Legal actions aimed at specificproblems This approach is much quicker than land policy reform. Decrees and their effects are largely seen as temporary. c.Specific legal actions which are able to attendto certain land problems in a crisis context are quite useful for management of such problems until a broader land policy reformcan be considered. donor involvement. ownership under adverse possession. expatriatestaffare oftenused fora period of years. Since this is significantlegal reformand national capacity is frequentlyquite low. political will. and often a good deal of time (usually years). evictions.e.5.118 on Wed. money. This content downloaded from 168. Legal rulings that resolve specific but potentially volatile problems for certain post-war communities.

working to purposefully include customary institutionswhich are able to garner legitimacy from a local population. the extreme avoidance of agricultural renting arrangements by the landowning lineages (who control all rural land in the country) was due to a fear that such rentingwould turn into permanent forms of ownership claim by the tenant. and that the lineages would be unable to get their land back at the end of the rental agreement. in a conflict context. the wareda level (three members). providing forms of state legitimacy to certain customary institutionscan be a shortcutto settingup workable institutions. In such a situation. While enforcinga single article of law for some segments of a population and not others mightbe problematic in a stable settingand even be seen as the state being partial to one group. and at the smallest administrativeunit. An official Guurti comprised of elders has been institutedat the regional level (36 members). Institutionalreform Institutionalreformattends to the issue of violence being an easy alternativewith which to pursue land issues because state institutions to deal with such issues are crippled.a traditionalcouncil of Somali elders. Some local inhabitantsbelieve this is an attemptby the regional government to get more input from elders and more recognition of local customary institutions. corrupt. In such a case. capacity and enforcement problems.can be a very worthwhileconsideration.5.105 JonUnruh d. in the statutorylegal system. Application of specific articles of existing law in order to contribute to the resolution of immediate problems.118 on Wed.while others believe that this is a way to coopt the Guurti with salaries and positions in order to control communities. and erosion or not of local authoritystructuresin Somali This content downloaded from 168. This would have the effect of the landholding lineages being in a tenure 'secure enough' position so as to feel little risk in rentingout land. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . In Sierra Leone. The overall result in the countrywas a serious food insecurityproblem due to the large areas of unrented land going specific customary institutionsof elders and leadership were provided with state legitimacy as a way to resolve a varietyof societal issues. There are varying opinions of this move fromthe larger Somali community in Ethiopia. The application of specific articles of existing law can include certain articles that are part of pre-crisis laws that on the whole are unjust. Increased recognition of customary institutionsby the Ethiopian state as national policy has meant that the Guurti. or nonexistent. at the zonal level (seven members).176. including those involving land. These council members receive salaries fromthe governmentand are to advise on policy. was institutedformallyat differentlevels in regional government. not legitimate. the simple 'right of reversion' is a specific article of law found in many countries (including pre-war Sierra Leone) and could be applied specifically and quickly to the landholding lineages as a first step in assuring them of the returnof any rented land. In the Somali Region of Ethiopia. In reality the issues of recognition. acute land and food security problems. At the same time.Ethiopia has had particular success with this approach in its restive Regions. makes this option a viable consideration. speed.

g. with the topics and outcomes of such negotiation variable over the vast expanse of the Region. the high costs associated with armed conflict togetherwith recognition by the state.176. the Afar people have experienced institutionalimprovementpositively impact a situation of armed confrontationover grazing access. schools.106 Land Rightsand Peacebuilding Region of Ethiopia are likely to be constantly negotiated by government at different levels.118 on Wed. and regional and state authorities. health clinics. An additional example is that of the Karamojong Cluster. issue at hand. This occurs as both the federal and regional administrationsnow have an avenue to institutions considered legitimate to the Afar. there is now significant interaction between local customary dispute resolution institutions regarding access to commons. and northwest Kenya. 1994). and have worsened considerably with the prevalence of light weapons from the surrounding armed conflicts. the Guurti. In a large part. The creation of institutionslegitimate to both the Afar and the state (and hence applicable to outsiders) also has considerable utilityto the state. more recently traditional punishments. The Ethiopian state has provided the Afar with realistic opportunities to attempt new approaches which fit changing circumstances occurring inside their administrative areas (Gadamu.togetherwith the erosion in the ability of local customary institutionsto handle local conflict issues. 1994). Traditionally.. Also in Ethiopia. Cattle raiding and conflict are common in these areas. which can be used to assist the governmentto resolve problems and pursue development programs (e. What is noteworthy in this example are the ingredients that facilitate institutionalimprovement in the context of armed conflict over land resources. Afar traditional authority and customary law (Afar-madaa) have revived significantly with the recognition afforded by the Ethiopian government and the subsequent establishment of the Afar Regional State in 1991. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . This content downloaded from 168.whereas under previous policies the state appointed non-Afar administratorsto govern areas occupied by the Afar (Kassa. this has to do with the local state authoritiesbeing fromthe area and connected locally. In parts of the Region. 1997). northeast Uganda. which covers the border areas of southwest Ethiopia. effectivecommunication and rules of interaction among elders allowed for conflicts over land and cattle to be effectivelydealt with throughcustomaryinstitutions(Ocan. One importantaspect of such recognition has been that regional administrativeofficials and Afar ethnic elders are oftennow the same people. and capability of the individuals involved. and communities. According to the Afar themselves. Such negotiations will depend on the context. or have very close connections. particularlyas theypertainto commons lands used for grazing by the differentgroups. sanctions and controls have been ignored as pastoralists no longer obey regulations for use of grazing commons (OAU-IBAR. and in particular the willingness on the part of the state and the Afar to take advantage of experimentationinvolving a mix of customary and state arrangements.5. a neighboring group. are to a large degree responsible forAfari attempts to derive workable rules aimed at resolving armed conflict over grazing commons with the Issa. southeast Sudan. donor programs). and hence theyhave an understandingand interestin customaryinstitutions. However.

initiallycalled the 'Expanded Border Harmonization Meetings' and organized by PARC-VAC. Waithaka. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . Instead. and Uganda.5. and internationalagencies in order to witness acceptance of new rules. NGOs. This content downloaded from 168. b) the derivation of ways of improvingaccess to droughtreserves in theircommon areas. included elders from differentpastoral communities in Ethiopia. The outcomes of the meetings resulted in the elders agreeing to adopt the following: a) the establishmentof rules between groups involved in armed conflicts regarding when to use specific range resources and who can use them.and the impact these have on pastoralism were raised repeatedly by elders. 2001). and to have conflictsettlementsformallyrecorded. Kenya. a series of cross border meetings between elders of pastoral communities (Waithaka. northeast Uganda. armed confrontationover access to common grazing resources has become the prevailing approach to group interaction(Frank and Paz-Castillo. 1999a 1999b. 1999). including the development of community-based animal health delivery systems in southern Sudan. Through this overall effort.118 on Wed. 2002. as well as local communityand political leaders. 2001. These programs have experienced significantsuccess and are quite popular. The Inter-African Bureau for Animal Resources (IBAR) of the (then named) Organization for African Unity (OAU) had been working throughits Pan African Rinderpest Campaign Partners to develop coordinated animal health services forthe past 12 years in the Karamojong Cluster rangelands. Sudan. and improve overall information flow. 1999). These conflict meetings. c) to encourage communication and dissemination of agreements and conflict resolution decisions among communitymembers.176. followed by larger meetings with representatives of national governments. e) to disseminate the results of meetings with theirrespective communities. Uganda. churches. as well as governmentofficials from Ethiopia. over a period of six months in 1999. and Kenya. and representativesfrom development agencies. Minear. In these meetings the issue of violent conflict over grazing commons and cattle raiding. and southwest Ethiopia. to the degree that the PARC-VAC vets were labelled 'peacemakers' (Grace. OAU/IBAR and its Participatory Community-Based Vaccination and Animal Health (PARC -VAC) project held. to the degree that a subsequent set of meetings was initiatedto look specifically at the issue of violent conflict (Frank. These and subsequent meetings developed to be called 'peace and reconciliation meetings' by the pastoralist communities. OAU/IBAR. 2001).107 JonUnruh 1999c). d) to conduct smaller peace meetings with immediate neighbours with the objective of working out land access and cattle stealing issues.

a) that village committees be formed to regularly review the situation and deal with any problems.176. informaland customary ways of accessing and claiming land often brings a This content downloaded from 168. is that customary and other formsof informaltenure will be the prevailing form of tenure forthe majority of the population. 1999b. b) that an NGO should be encouraged to pay a small incentive when committees meet in order to keep the affairseparate from either the Ethiopian or the Kenyan governments.or aftera crisis.118 on Wed.5. Customary tenure in conflictcontexts The practical reality in situations of low government capacity in land administration. including the protectionof dry season grazing. These included: a) civil authorityenforcementof infractionsin addition to enforcementby local communities. Even if a significant percentage of a national population participated in statutorytenure prior to a crisis. the degradation. c) to provide elders with radio communication equipment. NGOs. 1999c). As well the elders outlined what they would like from national governments in order to effectivelydeal with conflicts over grazing commons. corruptionor collapse of state institutionsand organizations and the reliance on in-place. d) greater interactionbetween state authorities and pastoral communities prior to state organized migrationof outsiders into pastoral areas. c) significantlyimproved interactionbetween states and local communities. e) a larger role of the state. b) the institutionor reinstitutionof group sanction by government. and churches in the derivation of cooperative approaches to grazing on common rangelands (OAU-IBAR. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . allowing them to communicate when tensions or otherissues arose.108 Land Rightsand Peacebuilding Additional less formal recommendations also emerged for the Karamajong Cluster. d) that a committee of elders be constituted to reintroduce forms of controlled grazing.

109 JonUnruh variety of differenttypes of customary and informal tenure to fill the void for large numbers of post-war scenarios can move quickly and theirposition can quickly degrade as peace to prevails. and robustly step in to fill the vacuum. and what such claims are based on. creates extremelydifficultsituations where other formsof tenure can emerge. this should be done carefully. and corruption and other arrangementsthat favour the well placed and disadvantage many rural dwellers. An occurrence of some frequency is the situation where armed individuals have emerged during war to become the primary local authorities afterwar. While it can be appealing to provide support to customary authoritieswithin one's specific project area. replacing customary elders and other institutionswhich may or may not have effectively dealt with land issues prior to the war. they are very open to corruption. 2. If such individuals are still armed and asserting themselves as local authorities in land issues. Attemptingto downgrade customary law. 3. or attempt to re-impose debilitated or corrupt statutory law arrangements into situations where customary law is re-emerging. 1.176. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions .humanitarianand UN actors should not tryto insist on.a few thingsshould be avoided. what claims are being made over lands that adjoining or absent groups (or individuals) outside of a project area may also have on the lands or properties in question.with considerable efforttaken to understandingthe local situation. and administrative and dispute resolution decisions regardingland are being made. and in many cases will have contributedin some fashion to the cause of the crisis. Legal pluralism in crisis contexts Forum Shopping With a weakened state.118 on Wed. such as warlord tenure. quickly.5. Statutoryland laws after crises and in degraded institutional situations often have little ability to be enforced. Statutoryland laws and enforcementof these take significanttime to re-instituteaftera crisis or in a low capacity institutional situation. At a minimum. when statutorylaw cannot easily. For the UN or other outside actors to be seen as 'taking sides' in land conflicts can cause more problems than are solved. 4. and significant segments of a local population can desire to returnland and propertyinstitutions back to customaryauthorities. and is best left to a policy process that can carefully gauge a rate and timingof re-emergence. and often inadequate legislation to resolve importantland This content downloaded from 168. impose. care should be taken to refrainfromovert support of such new authorities. At the same time there should not be an attempt (except in highly abusive circumstances where re-startingarmed conflict is a possibility) to downgrade customarylaw so as to promote statutorylaw in practice. tenure security that relies on possession of weapons. In this context.

applicable to their own local needs and political agendas (Galanter.176. such form shopping is common. 1996). etc. because there is the prospect of forum shopping leading to tensions as those in charge of the competing This content downloaded from 168. state. hybridsof these. eviction.rules. clan. for instance.The UN and other outside actors can find they have very limited ability to change such a situation. crises.110 Land Rightsand Peacebuilding and property rights issues (or slow moving reform). In this context. . formal law. In Ethiopia. where a mix of state. or a recoveryprocess if claimants feel thatthere are no rigid. potentially reducing violence in a degraded state administrative situation.engaging legal pluralism during a recovery period is often a consideration. including formal law and humanitarian. even in stable situations.commonly select fora fromany sector . 1981. Lund. Claimants are able to choose which legal field to pursue land issues with. donors and NGOs and the objective third-partypresence such actors may offer.previous experiences with what is called 'forum shopping' (Figure 2) can be useful. informalwartime norms. forum shopping can offer room for manoeuvre or negotiability.including formsof customary law. Figure 2.uncompromising legal structures of questionable legitimacy confines their options. claims.5. Some caution is warranted however. Many disputants in the developing world. donor and NGO entities. Forum shopping in situations of legal pluralism. While messy. Where legal is pluralism present. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . village and regional actors provide a wide choice of arenas in which to pursue land issues. restitution.local. Forum shopping occurs when individuals and communities choose which institutionto go to in order to resolve land rights problems disputes. squatting.there can be a varietyof authorities. peacefully. religious. traditional. and institutionsto choose from. as well as the perceived legal capacities and institutions associated with humanitarian organisations.118 on Wed. etc.

Recognised legitimacy can thus be given by one legal field to another when some of the more popular or visible legal fields (e. This can potentially become tricky for external agencies when they are unaware of such attempts. Change in legal pluralism Legal pluralism is known forits changing nature.5.and seek to decrease the number of cases they must consider by insistingthat the firstdisputantstrya 'lower level' forum. priorto bringingthem to a districtcourt. and otheroutside actors so as to legitimize themselves. and in response state that they will only consider hearing disputes after one of the 'lower-level' legal fields have firstattempted to resolve the matter. In a number of cases. district courts. Forms of appeal in legal pluralism. Such actors can attemptto use the UN. This realignmentof legal fields. forum shopping has changed over fairlyshort periods of time (from monthsto years) into a relationship between approaches which operate more as forms of appeal (Figure 3).111 JonUnruh vie forlegitimacy.In Sierra Leone. the relationship between the differentapproaches change. some district courts insist that smallholders firstpursue theirclaims in chiefs' courts at differentlevels. Figure 3.176.which is inevitable aftera crisis . over time.g. can come about when authorities within some legal fields become overwhelmed with dispute resolution requests. fromseveral choices at once (Figure 2) to a sequence of choices (Figure 3).118 on Wed. This content downloaded from 168. chiefs courts) become overloaded by the volume of cases . 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . while at the onset of a recovery process there can be multiple formal and informal approaches to land and property administration and problem solving. Thus. and it is common fora good deal of change to take place as differentapproaches to doing land tenure interactwith each other in difficultcircumstances. EC.

4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . Purposefully planted economic trees are a good example of this due to the very clear connections made between people and the land upon which such trees are planted. the UN. by first requiring that claimants visit one of the other local customary or formal institutionsfor dispute resolution (such as local leaders. the evidence which proves or argues forclaim to lands have a primaryrole in dispute resolution and importantly. internationalorganisations and local leadership. NGOs and humanitarianorganisations can contributeto such a realignment of legal fields by also requiring that parties to a land dispute wishing to engage such organizations in dispute resolution. authority structures(state and customary) and potential counter claims. their mere presence can often times constitute an additional legal field (Figure 3).5. the issue of proving rightsto land claims in a way that is legitimate to claimants.118 on Wed. At the same time. outside organisations encourage local people to move towards an appeal approach (Figure 3). local government). this gives legitimacy to (re)emerging customary approaches to resolve disputes. for cases that are dealt with by outside organisations (such as in the case of mediation). especially evidence which connects with both customary and statutorydefinitions of claim such as 'occupation' (Unruh. Local communities can see outside actors and projects as a thirdparty able to be objective. For the UN.Land Rightsand Peacebuilding 112 The state.legitimate institutionsare lacking. the use of certain forms of landscape-based evidence can be particularly strong in order to prevent disputes. the communication of outcomes of what institutions or legal fields are perceived to be 'higher level' (district/provincialstate representativesfor formallaw. 2006).and theirstrong connection with formal legal notions of long-term occupation or preventing disputes. Thus. IDP councils. or chiefs and clan leaders) would furtherencourage such a realignment. Land tenure disputes The evidence problem While differenttypes of land disputes present differentchallenges. or use them as an objective thirdparty. women's groups. while also saving the state money and capacity for other purposes. this is actually not the case in many instances where land administrative capacity is lacking. as well as having the perceived connections to or influence with the state. Such trees are notable for their pervasive role as legitimate evidence forclaim within customary systems. Where effective.For the state. NGOs and humanitarians organizations. becomes very important. even if the specific project they are pursuing is not about land tenure or dispute resolution. firstvisit a differentinformal forum. broadly. While it can be assumed that evidence must have effective dispute resolution institutionsin order to be effective. thus engaging with an administrativestructure and population-wide service which the state would not itselfbe able to mount in any case. The informal role of tree planting as evidence in asserting land claims in the contested lands of the Middle East by This content downloaded from 168.176. In this regard.

the need for an institutionto resolve a dispute (Unruh. to what degree are smallholders able to 'translate' aspects of their daily reality into evidence for use in dispute resolution. Purposefully planted trees for land claim and demarcation is widespread. Similarly. especially where institutionsfor dispute resolution are absent. or one-sided. Avoid takingsides Certain practical responses to the challenge of land disputes must be approached with some caution by internationalactors. purposely planted 'marker' trees on farmlands were used in both post. caution should be taken in advocating that 'clearing to claim' be included in statutorylaw and proceedings. or where such institutionsare weak or engage in discrimination. dispute resolution). Outside actors can assist here. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . or precarious they may be. destructive and conflict-prone formof evidence to obtain. given the ease with which clearing is done without planting crops. or corrupt. in order to pre-empt the likelihood of a counter-claim and therefore. the greater the need will be to make a strong visible argument for claim. is that they can come about due to the absence. or mistrustof effective institutionsthat are able to manage land disputes. What tree planting and 'clearing to claim. Importantto the issue of evidence in land dispute resolution is the degree to which smallholders are able to respond to the presence of land disputes by deriving or 'forming up' workable forms of evidence.Idi Amnin Uganda. clearing land is more widespread as a means of creating visible evidence of occupation and thus claim in situations where institutionsfor adjudication are lacking. weak. and extreme care should be taken when considering acting to legitimize it as a formof evidence forclaim.176. however insecure. by looking at what local communities use as evidence in disputing when their members have a dispute amongst themselves and then seeing if this can fit into state law. Serious consideration should be given to advocating for such powerful forms of customary evidence to be used. by working with domestic lawmakers and law-making processes. However.113 JonUnruh both Palestinians and Israelis. as were cashew trees in post-war Mozambique (Unruh. weak. including land clearing (Unruh. 'Clearing to claim' is an extremely easy. given that legitimate institutionsto resolve claims between these two groups are lacking has become quite powerful (Cohen. Deforestation as a formof evidence is widespread partially because it is so effective. In other words. illegal. collapse.118 on Wed. the more local to national institutionslack the ability to adequately deal with evidence (claim. This practice is also of great concern for environmental conservation.5.Thus. or admitted in statutory court proceedings. In post-war Liberia the decrease in the value of the deed as evidence resulted in the comparative rise in perceived value of other forms of evidence. given that such actors do not have positions of This content downloaded from 168. and advocating for their inclusion in laws and evidence rules. and post-war Liberia as evidence for reclaiming lands for returningIDPs.' have in common in a low capacity or crisis tenure situation. 2002). 1993). 2009a). 2006). degradation. and the significantdamage to naturalresources needed to sustain livelihoods. While planting economic trees can be one way to make an argument for claim.

demarcation. 1'. attempts at mediation of land disputes can often take place without the benefit of formal law as a legal backing to any final resolution or agreement. again. problems regardingsovereignty. it is also very important where customary authorities or even warlords are in de facto control of areas. presenting. or to provide support via designation and financing of venues for dispute resolution. In post-war East Timor the UN instituted'Directive no. It is importantto note that while such an exercise would be importantin state adjudication settings. burial sites. as they oftenare. 2002).often in the formof judge or adjudicator in land disputes.with the Palestinean . However. agreements with neighbouring groups. and an area of law-making they saw as a matter of national sovereignty. In the Darfur conflict. and hence not something the UN should be involved in. installation of cadastre systems. Such an arrangement could have favoured those with Indonesian issues land documents however. In this regard the UN learned a valuable lesson in East Timor.Israeli conflict as an example of international actor as adjudicator carries a significant legitimacy problem and risks subsequent accusations. Qatar. Due to the sharp reaction on the part of the East Timorese to an issue. This can include very basic forms of support for mapping. training.the pre-existing Indonesian law would prevail. the UN withdrew its effortsalong these lines and did not implementits directive (Marquardt et al. which stated thatuntil East Timorese land and propertylaw came into effect.118 on Wed. at the same time.led the UN to contact the author regarding the prospect of advising certain armed factions during the peace negotiations in Doha. the tendency can be for the lower capacity party to resortto ideology or violence to pursue or defend theirinterests. A betterapproach for the UN and outside actors is as the role of a mediator. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . Mediation Prior to armed conflicts or other crisis periods. description of histories of land use. surveying. or support of institutionsfor dispute resolution. the lower capacity of the rebel armed factions (compared to government) on land issues. Mediation effortsdepend on the goodwill of the disputants This content downloaded from 168. However. and arguing forms of evidence that can assist disadvantaged parties. many in a local population can request that the UN or other internationalactors act as an objective thirdparty. and this should be avoided.176. While thirdpartyinvolvement can have positive contributions. caution is needed with regard to the perception of taking sides in land disputes. Capacity imbalance Where the capacity to gather and effectively understand and use evidence is significantlyunequal forparties involved in land disputes.114 Land Rightsand Peacebuilding either state or customary authority. and formsof corroboratingoral historywhich attestto occupation of the lands or area in question. UN personnel can assist in such a situation with ways of defining.given that these are seen by all parties as equally legitimate.Overt and highly visible interventionin land disputes can be seen as 'taking sides' oftenwith unfortunaterepercussions.and a collapse of agreements. and the technical prospects for achieving theirobjectives with regard to land rights.

dealing with certain tenure problems in batches with decrees. and perhaps cause encouragement of claims of membership in insurgent groups. First. ownership.5. and regulations which address insurgent related issues. While this can be disappointing for the outside actors running a mediation effort. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . However. More prone to success would be to take insurgentissues into consideration in the determinationof population-wide mechanisms forresolving disputes and claims between customary and government claimants regardless of membership or affinity with an insurgentgroup. or coerce such goodwill. A foreign NGO had pursued mediation as an alternative dispute resolution approach for a complicated land dispute. or negotiation resumes.. laws. humanitarian agencies and NGOs should realise the importantrole such 'open-ended' mediation effortsplay. Rather than disengage. some of which are noted above e. although good progress appears to be made in the mediation of specific disputes. because such special arrangements between only these two groups and excluding the general population would likely result in considerable animosity on the part of the larger population.the value forsociety is thatsuch mediation buys time in a non-violentway. These are covered below in the section on 'Peace Agreements'.176. it is This content downloaded from 168. there are arrangements between government and belligerent groups that can be part of peace negotiations and agreements which allow such groups and their constituencies tailored arrangementswith regard to land access.g. Peace agreements Being well versed in the land issues The practical responses to land issues in peace agreements are several. This can occur because the differentparties to a land dispute can see value in participatingin the process of mediation. This was the case in East Timor along the volatile West Timorese border subsequent to the conflict. or otherwise encourage. but not in an ultimate resolution. but also for the positive exposure and interaction between forms of land tenure that can be achieved.115 JonUnruh and the ability of the mediation process to cultivate. given the possibility that they may obtain a more favourable decision once formal or customary law is re-established. Government It is difficult to employ viable mechanisms for resolving disputes explicitly between ex-insurgents and their sympathizers vs. etc. for the UN and other organizations involved in a peace agreement as a third party. government interests. This arrangementcan lead to situations where.118 on Wed. formsof restitution. Disputes between constituentsof insurgentgroups vs. purchase. coax. or new issues suddenly emerge. not only in buying time. but the effortstalled at the last minute and no resolution was reached. relaxing evidence rules. final agreements often fail or are postponed.

In reality the belligerents usually know the land areas and land resources very well. Thus a practical response is to include in peace agreements the mechanisms and time-framesnecessary for reintegratingareas held by the differentparties into a national administrative.118 on Wed. then dubious or unworkable arrangements can be unknowingly made in the negotiations. the example of South This content downloaded from 168. or trivial or irrelevant. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions .and political issues. and the prospect for multiple claims over such lands as peace negotiations get underway. and at the same time such groups have been disarmed. and can seek to negotiate (in many cases indirectly) a beneficial arrangementforthemselves in a post-war phase. title holders. they can pursue negotiations with this in mind. or indigenous groups. and found that conflicts associated with natural resources (most of which are land-based) are twice as likely to relapse into conflictwithinthe firstfive years. in addition to losing the prospect for controlling land. or have occupied them. This can become a problem if the same lands are also claimed by returningIDPs. If there is no plan in by the peace agreement to subsequently integrate these areas into the national administration.institutional. where RENAMO continued to hold areas years into the peace process. However. to whom.Land Rightsand Peacebuilding 116 particularlyimportantto become well versed in the land issues about the specific country and those involved in the conflict. This was the case in Mozambique subsequent to the RENAMO . In other words. where these lands are. UNEP describes findingsfroma retrospectiveanalysis of intrastateconflicts over the past sixty years. Reintegration of lands into a national tenuresystem A related issue is that of land areas gained in battle being held in an ongoing way the various sides in the conflict as an outcome of a peace accord. with very difficult problems emerging regarding a variety of administrative.institutionaland political structure. Such unawareness by negotiators also produces the notion that the various parties at a negotiation seem to be wanting to negotiate about issues that froma UN perspective are outside of the scope of the negotiations.One disadvantage to including such mechanisms and timeframesin a peace accord can be reluctance on the part of insurgent groups to participate in negotiations if they foresee a futurewhere other parties may not live up to theirend of an accord.176. With the various sides in peace negotiations (particularly the leadership of militias) wanting to solidify battlefield gains and control over lands in the negotiations so that they can be assured of a favourable personal arrangementafteran accord is reached.particularly with regard to apprehensions about the conflict being easily reignited fromsuch areas. they can want particular lands allocated to them or to their groups in exchange for their participation in a peace process essentially buying peace with land allocations going to specific individuals or groups involved in conducting the conflict.FRELIMO war.The conclusion by the UN in such a case can be that the parties at the negotiatingtable are naive.5.then these areas can solidify as separately governed areas. or are not knowledgeable with regard to what the negotiation 'should' entail. because they have been fightingover them. Such problems can detract from the overall peace process. Unless the UN negotiators are aware of what lands are valuable forwhat reasons.

in order to reduce the size.e. especially if identity. an additional practical response is to 'unpack' land issues into those that can be more easily dealt with in an accord (easily agreed upon). or volatility of land issues to be considered later. there should be an awareness of the possibility that such attentionon the easier aspects of land issues may limit solution building later when the difficultissues are worked on. to date has largely unsatisfactoryresults although it did contributeto the conclusion of the accord itself. The problem is that if a civil affairs effortin land tenure causes tension. were or are large factorsin the crisis. A furthercomplication in crises connected to armed conflict.In cases where serious consideration of land issues risks destroyingan accord. colonial legacy.118 on Wed. agreeing to look into the matter later. evictions) fromthe militarycomponent. volatile or complicated to include in peace an illustrationthat there are a wide variety of possible constructs for dealing with such an issue in peace negotiations. For example.117 JonUnruh Sudan whereby a referendumon separation is to be held after a set timeframe. an accord can establish or mandate the establishment of a land commission. This is what occurred in the accord between the Sudanese governmentand the SPLA. There is the risk of generatinga good deal of domestic resistance and ill-will by what can be seen as meddling in a sovereignty issue (land).even if only minor land issues can be dealt with in an accord. often with thirdparty support. Outside actors can be in a difficultposition with regard to moving forward on the policy frontwith land tenure issues in a crisis and low capacity situation. should provide the precise means and timeframe for doing this. however. or otheroutside actors. comprised of representativesfromthe differentsides in a conflict. In essence. or needs assistance (i. Policy Responses to Challenges Statutoryand customarysystems of propertyrightsin crisis contexts: What to avoid and what to consider Importantpolicy responses to statutoryand customary tenure in a context of low capacity and crisis include what to do and what not to do on the part of the UN and other outside actors. versus others that will need to be dealt with subsequently. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . which.independence. An accord.Civil affairseffortswithin the UN are secondary. Such 'unpacking' can be useful. However..5.with security concerns usually This content downloaded from 168. one practical response is to 'park' the issue until after the agreement has been reached. is that the UN command structurein any particular peace process (particularly early on afteran accord) is driven firstby militarypriorities.and with the organizational capacity to engage the issues and come to agreement on land problems at later date. 'Parking' certain land issues until afteran agreement In negotiationswhere land issues are deemed too sensitive. often the UN militaryresponse is for the civil affairs exercise in land tenure to cease the activity.176.

The overall reaction of the Afar to the emergence of resource degradation. the high costs associated with armed conflict togetherwith this recognition by the state. Given the enormityof the dislocation. and should be identified. According to the Afar themselves. livestock. The example of the Afar noted earlier is one of these. and the land tenure problems that normally result during and afterprolonged conflict. There are importantexamples where domestic statutoryand statutory /customary combinations are home-grown. and possessions over time were devastating to Afari communities and individuals. Loss of people. land access. The UN militarystructureneeds to become betterinformedand achieve greatercapacity with regard to the tensions inherent in recovery processes. Afar traditionalauthorityand customary law (Afar-madaa) have revived significantlywith the recognition affordedby the Ethiopian government and the subsequent establishment of Afar Regional state in 1991. and made preservation of a way of life difficult. 1994).To facilitate this. togetherwith an erosion in their ability to effectively apply rules of exclusion (particularly to non-Afars). the governmenthas instituteda program where those who become dislocated. fatigue and exhaustion regardingthe high ongoing costs of conflict. analyzed and potentiallysupported or 'scaled up' by the UN.whereas under previous policies the state appointed non-Afar administratorsto govern areas occupied by the Afar. have a great deal of potential. has resulted in a response that favored armed confrontationto be the preferredapproach in attempts to exclude non-Afar people from their lands (Kassa. 2003). 2001. Such internalmisalignment of near term prioritiesshould be resolved. Armed confrontationhowever comes with significant cost to the Afar.176.118 Land Rightsand Peacebuilding being the reason. With approximately four million people displaced over the course of the long civil conflict in Colombia. and the presence of outsiders seeking to occupy and use Afari grazing commons. With the definition of administrative boundaries along ethnic lines in Ethiopia and decentralization of certain powers and responsibilities regarding the creation and use of regional and local institutions. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions .5. or believe they could become dislocated have the opportunityto register their land with a specialized program. are to a large degree responsible for Afari attemptsto derive workable rules and institutionsaimed at This content downloaded from 168. a neighboring pastoralist group with whom the Afar have engaged in armed confrontation for some time. The Colombian government has perhaps the most capable approach regarding proactive measures for land and propertyreintegrationwhen its currentwar with FARC ends.the Ethiopian state has provided the Afar with certain opportunitiesto attemptnew approaches to circumstances occurringinside theiradministrativeareas (Gadamu. Markakis. Ethiopia provides examples where combinations of statutory and customary opportunities buried latent within conflict scenarios were used for peacebuilding. the countryfaces an enormous problem in the reintegrationand returnof large populations of rural inhabitants.and the realization that "we were destroyingourselves" as an Issa elder claimed (Michaelson. 2000) has played a large role in the emergence of incentives for deriving conflict mitigation institutionsbetween the Afar and the Issa. so as to facilitate their return when hostilities end.118 on Wed. this approach will likely prove very useful in returnand reintegration. reduction of grazing land access. and find ways to better integrateUN civil affairsprioritieswith militarypriorities. Also.

One important aspect of such recognition has been that regional administrativeofficials and Afar ethnic elders are oftennow the same people. and contact and contractual arrangementswith others are disrupted. is being institutedformally at differentlevels in regional government. allocations. 2005a). and hence they have an understandingand interestin customaryinstitutions(Unruh. Moreover. and venturinginto such areas means significantrisk to life and livestock. a traditional council of Somali elders. security of goods traded. The process of consultation between formaland informalsystems.In a large part this has to do with the local state authorities being from the area and connected locally. or having the statutorytenure system accept and make legal. facilitatesthe much needed exposure between these systems. established trading networks are disrupted as travel. to negotiate an arrangements regarding the precise nature of use rights by a commercial interest within the boundary (Tanner. claimants. 2000). and allowing for such innovation to become incorporated into statutorylaw as a general principle. whereby the statutorysystem can encourage or require that disputants. and regional and state authorities.including foreign investors operating fromthe statutorysystem.118 on Wed.Council members receive salaries fromthe governmentand are to advise the government on policy. and land allocation requests within the customary system first take their case to the relevant customary authority before approaching the statutorysystem. 2002. In parts of the Region there is now significant interactionbetween local customary dispute resolution institutionsregarding access to lands. The Somali Region in Ethiopia is another example of the combination of statutory and customaryapproaches to attendto conflict explicitly over land access. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions .176.The process of broad-based consultationnoted above in the land tenure or land policy reformprocess can be aimed at the inclusion of aspects of customary into statutorylaw. Large areas of grazing resources are essentially off limits to use by pastoralists because they are hotly contested. there are furtherprinciples to governing situations where both formal statutoryand customary tenure systems are present together. Such innovation. together with 'open' character of the boundary which encourages investors.5. Unruh. even though the statutorysystem does not understandhow such decisions are made. etc) in their own areas. 2005b). Increased recognition of customaryinstitutionsby the Ethiopian state as national policy has meant that the Guurti. The consultation approach noted above within the process of land policy reform has an additional valuable principle for governing across formal and informal tenure systems. Mozambique has had relative success with what it calls its 'open border model'.JonUnruh 119 resolving conflict over grazing commons access and use with the Issa. or have very close connections (Michaelson. This connects well with the change in legal pluralism toward an appeal formatnoted above. As well. This can include forms of customary evidence deemed legal under statutorylaw. holds considerable potential for governing land regimes where both statutory and customarytenure systems exist in the same country. whereby both local communities and outside investors are able to access and use the same area. This occurs by both legally recognizing the boundary around a rural community and its lands. the decisions made by customary leaders regarding land issues (disputes. allowing these to respond and adapt to the This content downloaded from 168.

As well national and internationalNGOs and other political interests (embassies. local communities and individuals within them who were sympatheticwith. such that the government is perhaps not as open to politics connected to international assistance. This is perhaps linked to the presence of high-value resources including fertilelands. Liberia. In Angola in contrast. local communityneeds for lands for meeting livelihood.and conservation objectives as laid out in the forestrylaw. oftenthere is a difficultbalancing of these two priorities. Commercial interestsvs. domestic NGOs and mobilized local communities. 2004). there is a profound tendency toward non-exposure between systems and instead an inward focusing on known ways thatprotectkin.has derived a forestrylaw that comprises what is referredto as the 'Three Cs': commercial timber. this is not the case and commercial interests clearly prevail over community needs for land resources.5. 1994). which can appeal to a war weary government and individuals within government.and nature conservation (RLFDA. One the one hand. 2004). While examples do exist (such as for Mozambique described above) where the interestsof both are accommodated. On the other hand. donor organizations. with the former insurgent leaders exert significant political pressure to attend robustly to local community land rights. identity. Such exposure is importantto cross-system interaction. througha robustpolitical debate involving domestic and internationalNGOs and the donor community.120 Land Rightsand Peacebuilding social and economic changes and innovations and practices taking place elsewhere in the countryand the world (LRC. so as to attend to the question of durable peace. the UN) can likewise exert considerable political pressure including conditioned international assistance on a national governmentto give priorityto local communityland rightsneeds. in which the Liberian Forestry Initiative dealt with the politics of an array of foreign and Liberian agencies to delimit the entire countryinto zones designed to meet the objectives of the commercial. This was seen to be a primaryproblem in post-war Sierra Leone (LRC. Such co-adaptation is particularly importantto postwar settings because during and after conflict as well as the preceding crisis period. and humanitarian objectives. While Mozambique is a case where communityprioritieswere held to be roughly equal to that of commercial interest.with the politics aligned to one priorityor the other operate fromthe local to the internationalscales. diamonds. refugees.176. or participants in an insurgent group during the war can. This content downloaded from 168. this did not come about without considerable political maneuvering by the international community. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . community.118 on Wed. and oil. 2006).and fundamentalto the broader 'adaptation paradigm' in which the two systems co-evolve in the process of moving toward a more unified tenure system (Bruce and Migot-Adholla.and food and other formsof security needs. communityneeds: politics and priorities A particular difficultyfor post-war governments is how to deal with the often competing priorities of commercial interests for access to land resources vs. community forestry. national and international commercial interests can exert political pressure connected to financial capital.

attract investment.176. contact and communication between customary structures and leaders. advocacy and organisational capacity (Unruh. coupled with a lack documentation and publication of customary and formal land tenure decisions. particularly considering the large role that land issues played in these conflicts.and more formalized example. equity and reintegration. In Ethiopia significantroom appears to be allowed for litigantsto 'forum shop' where customary and religious courts only hear cases where contestingparties consent to the forum(Unruh. including providing information.5. 2009b). In both cases. as opposed to a multiplication of isolated pluralistic approaches. allocations and use in their areas. This content downloaded from 168. Ethiopia provides a different. as well between the many forms of customary tenure practiced in its 149 chiefdoms. Their decisions were then seen as and made legal by formal law. After initial resistance by chiefs. and the state. chiefdoms may have been able to learn about tenurial decisions made elsewhere. 'land boards' were instituted. 2009b). Zimbabwe was an example. Zimbabwe experienced considerable success in eventually managing customary land disputes afterits independence war. Such boards can be supported by humanitarian organisations in a number of ways.118 on Wed. state recognition of legal pluralism has contributed to the success of the peace process. comprising leaders from differentsegments of the population. recognition was a primaryvehicle to facilitatethe reintegrationof much of the population into productive activities. and religious courts of law and their legal guarantee is ensured. Afterthe war in Sierra Leone there was considerable separation between the country's two land tenure systems (formal and customary). saw as the primary problem the low level of exposure. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions .legal and otherwise. and promote the rule of law. Such recognition can be encouraged as a policy response to crisis situations by UN personnel in their interactions with host country national policy-makers. In El Salvador's Chapultepec peace agreement. Sierra Leone provides a differentvariation of how such recognition could have happened.' JonUnruh 121 Legal pluralism in land conflictcontexts The 'realignment' from a horizontal to vertical arrangement of legal fields mentioned earlier can provide the opportunities for support from international actors. who were responsible for overseeing disputes. The activities and decisions taken by the board were then seen as legal and binding by the state therebyestablishing a relationship between chiefs. thereby promoting the informal harmonisation of importantaspects of land tenure. Earlier in its history. The Law Reform Commission (whose purpose was to find approaches to modernize laws dealing with the commercial use of land. as in the Mozambican peace accord and subsequent legislation regarding land. particularly in the provinces where customary law predominates). This was a serious obstacle to effortsto harmonise tenure rules. Ethiopia's constitutional article 78 (5) now accords full recognition to non-state customary. land boards. State recognition of a legally pluralistic informal land and propertysituation in a crisis context can be an importantadvantage to a weakened or low capacity state. Had such communication and exposure occurred.

Thus. 2) take the large burden off of a recovering court system. expertise and training to commissions. While all societies experience land conflict. and the need to communicate to the populace that the recovering governmentis quickly attending to the many thorny land issues. as well as assist with its operation. The result can be a significant effort. and by facilitating communication between groups of smallholders themselves. the urgency with which many land issues need to be dealt with during and aftera crisis. While this may be the case. etc. including supportingthe derivation of land laws which support livelihoods of the poor. Including thegainsmadebycertain andindividuals fearof war. groups during toone'slandandproperty.pushed by the internationalcommunity. possess profoundly differentevidence with which to pursue claims. and 3) bring particular expertise (foreign and national) to bear on difficultland issues. and may have participated or sympathized with differentsides in highlyconflictive settings.thedesireforretribution. This is also how smallholder capacity can be improved in order to gain understandingand utilityof land laws that can provide land rights.5.176. it can have much more influence than it might otherwise. Some analysts argue however that land commissions are not the best way to handle the large surge in land disputes. returning This content downloaded from 168. Notes 1. are primary considerations as well. ultimately what is important is equitable access to legitimate land tenure institutionsable to embrace issues that exist between groups or between individuals who may view land resources very differently.122 Land Rightsand Peacebuilding Types of land resource tenure disputes Land commissions are frequentlyderived aftera crisis to 1) handle the very large volume of land disputes aftera crisis. and which can be supported by the UN and other outside actors.This is a significantcomponent of what the rural poor can participate in.118 on Wed. Such commissions usually intend to become obsolete as the recovery process matures and court systems (formal and customary) are more able to handle cases. because to staff them takes away capacity and money from rehabilitating the state's court system. Institutions heredefined as setsofrules.formal orinformal 2. This can occur via a broad-based consultation process with UN assistance in disseminatingthe need for and type of consultations with rural communities as input into the formal lawmaking process. International actors can support such commissions and mititgatethe negative effectson the recovering court system by providing financing. positive reformof formal structurespertainingto land can take place within an opportune period subsequent to crisis-a period in which input from the rural informalsector can be resolve importantor contentious land rightsissues. Conclusions As the international community presence in crisis and post-conflict settings is often much larger and much more empowered than in other developing countrycontexts. 4 Feb 2015 11:43:37 AM All use subject to JSTOR Terms and Conditions . togetherwith the volume.

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