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VII. The Role of the International Community

The Security Crisis in Iraq and Its Impact on the Property Reform Process

Humanitarian agencies throughout Iraq have become targets of deadly attacks from unidentified guerilla forces, causing a significant loss of life among local and international humanitarian workers.  The most shocking of these attacks occurred on August 19, 2003, when a suicide bomber detonated a large truck bomb at the U.N. headquarters in Baghdad, killing twenty-two humanitarian workers, including the Special Representative of the Secretary General in Iraq, Sergio Vieira de Mello.  Targeted attacks against humanitarian workers, like any targeted attack against civilian targets, are war crimes.¹³⁹  The attack led the U.N. to reduce its international staff in Iraq from an estimated 600 to eighty-six.  On September 22, 2003, a second suicide bomber again targeted the U.N. headquarters in Baghdad, killing a guard and wounding nineteen others.  The U.N. announced further staff reductions in the aftermath of that attack.¹⁴⁰

The attack on the U.N. headquarters in Baghdad was only the most well-publicized of many direct attacks on humanitarian agencies and workers. On a disturbingly regular basis, humanitarian agencies and staff have come under direct attack in Iraq.  The offices of the World Food Programme (WFP) and International Organization of Migration (IOM) in Mosul have come under repeated attack by rocket-propelled grenade fire.  On August 28, 2003, the International Committee of the Red Cross (ICRC) announced it was reducing its staff and operations in Iraq, stating: “We deplore the fact that present circumstances oblige us to reduce our activities at a time when many Iraqis need our help.  However, we were left with little choice bearing in mind the deterioration of the situation.”¹⁴¹  On September 5, 2003, fifty-three-year-old Ian Rimell, a bomb disposal expert working with the Mines Advisory Group (MAG), one of the foremost nongovernmental demining agencies, was ambushed and killed while driving just south of Mosul in a vehicle with the distinctive MAG emblem.  A local MAG employee was critically wounded in the same attack.¹⁴² 

The dire security situation in Iraq has led to the evacuation of the majority of humanitarian personnel and the suspension of the majority of humanitarian programs, with the exception of those programs being implemented by local staff and local partners.  Some humanitarian organizations ended their programs in Iraq, considering the security risks too great to envision a return to Iraq.  The IOM also suspended most of its programs, including its work on the Iraqi Property Reconciliation Facility (now replaced by the Iraq Property Reconciliation Commission).

In particular, almost all activity carried out by the humanitarian community around the property reform process was halted, including the development of a property commission, monitoring of returns and protection issues, and much of the provision of humanitarian assistance to returnees and recently displaced persons.  As of early June 2004, property commission offices had been opened in a number of governorates and had begun to receive claims (see below), but other aspects of this work had not resumed. The loss of much of the international humanitarian capacity working on property reform issues has been a debilitating blow to the process.

U.S. troops and the Coalition Provisional Authority (CPA) did see a similar staff reduction, but were forced to take additional security precautions to protect themselves from attack, thus also limiting their ability to develop a property reform process.  Despite the challenging security environment and until its dissolution on June 28, 2004, the CPA continued to work towards the development of a workable property reform strategy, focusing its efforts on the development of an Iraqi-led process endorsed by the then Governing Council in Baghdad.  Human Rights Watch participated in a meeting with CPA authorities in Kirkuk in September 2003 to discuss the development of such a process.

The Iraqi Property Reconciliation Facility

Almost as soon as the Iraqi government collapsed, the U.S. administration announced ambitious plans to set up a property dispute mechanism to resolve the claims resulting from Arabization in northern Iraq.  On May 23, 2003, then-U.S. administrator for Iraq Jay Garner promised to create a Bosnia-style property commission for Iraq to “arbitrate what is just and fair,” and to help reverse Arabization, stating that “it is vital that we do not accept the results of ethnic cleansing.”¹⁴³  He estimated that the Iraqi body would be set up “within weeks or months,” an estimate that proved to be wildly off the mark.¹⁴⁴

On June 26, 2003, U.S. administrator Paul Bremer, Garner’s successor, established the Iraqi Property Reconciliation Facility (IPRF), recognizing that “large numbers of people from different ethnic and religious backgrounds in Iraq have been uprooted and forced to move from their properties,” and that “many individuals have conflicting claims to the same real property, resulting in instability and occasional violence.”  The IPRF aimed to collect “real property claims and promptly resolve such claims on a voluntary basis in a fair and judicious manner.”¹⁴⁵  From its inception, the IPRF was envisioned as an interim measure, stating in its preamble that it was created “pending the establishment of a means of finally resolving property-related claims by the future Iraqi government.”¹⁴⁶

Lacking the capacity to establish and run the IPRF itself, the CPA (through its subsidiary, the Office for Transition Initiatives, or OTI), signed a four-month contract with the IOM to implement four aspects of the IPRF.  During the four months starting on July 1 2003, IOM was supposed to conduct a fact-finding and information campaign, develop a standardized claim form, establish seven claim registration offices, and offer facilities where property disputes could be settled through voluntary mediation.  IOM was also tasked with developing a more broad-ranging, long-term strategy to address the massive amount of property disputes in Iraq.

Security problems and a lack of staffing prevented IOM from implementing many of the agreed tasks.  IOM became a target of attacks in Iraq, after pamphlets were circulated in mosques in Mosul calling for attacks on IOM as a Zionist organization.  The IOM office in Mosul was attacked with a rocket-propelled grenade on July 6, 2003, causing no fatalities.¹⁴⁷  On July 20, 2003, an Iraqi driver was killed and an international IOM staff member seriously wounded when attackers fired on an IOM vehicle driving south of Baghdad.¹⁴⁸  The attacks caused IOM to withdraw its staff from Mosul, Kirkuk, and Basra, and staff were prohibited from overland travel.  The U.N. security coordinator (UNSECOORD) refused to clear the entry of IOM staff dedicated to implementation of the IPRF project following the attack. Two IOM staff dedicated to the IPRF project remained stationed in Iraq initially but were reportedly subsequently withdrawn.

Many observers in Iraq felt that the security conditions were not the only reason for the failure of IOM to implement its IPRF contract.  Humanitarian workers from other organizations felt that IOM lacked the experience and expertise to develop such an ambitious project, and that the staff commitment made by IOM was insufficient.  Protection-oriented humanitarian workers in northern Iraq also questioned IOM’s commitment to the development of a rights-driven property commission.  IOM’s focus (as required by its contract with the CPA) on the development of a claims form and the establishment of claims offices in the absence of a framework for resolving property disputes also seemed premature.¹⁴⁹

U.S. Mediation Efforts

In the absence of any legal framework or practical mechanism for resolving property disputes, U.S. forces in some places began conducting their own mediations to resolve property disputes.  There appeared to be no coordinated approach to these mediations, and the approach of different U.S. commanders varied widely.  Some commanders told Human Rights Watch that they refused to engage in resolving property disputes.  Col. Arnold, in charge of the Sinjar region, told Human Rights Watch: “I refuse to do any sort of land dispute resolution.  I tell them they will have to wait, I am not going to adjudicate and make a decision.”¹⁵⁰  Col. Buche, located in the adjacent area of Rabi’a, told Human Rights Watch: “I am not allowed, nor are military forces allowed, to adjudicate land disputes per se.  I can’t decide who owns the land long-term.  We have made no attempt, nor are we authorized, to adjudicate land disputes or to move people in or out.”¹⁵¹

Other U.S. troops, however, decided to play a limited mediation role, to resolve the least controversial of property disputes and to prevent inter-ethnic violence.  The U.S. efforts presented a host of problems.  While well-intentioned, the ad hoc mediations were often conducted by U.S. military personnel with limited knowledge of the complex property issues involved, and without the guidance of a standardized framework to ensure fairness.  No clear guidelines were developed to structure the ad hoc mediations, so the weight given to different claims was determined by the mediators, rather than by standardized policies.  Neither was it clear that all affected parties, including the displaced Arabs, were fully represented at the negotiations.  At the same time, the mediations did provide important lessons that should be fed into the development of a more comprehensive, and fairer, property resolution process.

Case Study: Dogurtkan

Among the first efforts by U.S. authorities to resolve property disputes was the June 2003 effort in Dogurtkan village, located in the Makhmour district.  Dogurtkan village was historically Kurdish with a few Arab inhabitants, consisting of two neighboring settlements, called Haji Mustafa and Haji Hussain.  In 1988, the Iraqi government expelled the Kurdish population, and destroyed the two settlements.  The government then constructed a new Arab village called al-Nasr, located on the main Makhmour road on farmlands belonging to Dogurtkan village.  The U.S. mediation effort dealt only with the Haji Hussain neighborhood of Dogurtkan.

Muhsin Sa’id Isma’il, one of the Kurdish villagers of Dogurtkan, recounted the destruction of their homes in 1988:

It was on the 9^th of August 1988, the day after the ceasefire in the Iraq-Iran war.  That day, they came and destroyed our village.  Military intelligence, other military, and loyal Kurds (called Jash, or little donkeys), came to the village.  They just gave us a verbal order to leave or die in the houses.  They burned our houses in front of us, and dynamited some.¹⁵²

The Iraqi government leveled both settlements, including the Arab homes.  The Kurds were resettled at a compound near Mosul, where each family received a tent, some construction materials, 4,000 dinars in compensation, and a small plot of land.¹⁵³  The Arabs were allowed to return to the area, and moved to the newly built al-Nasr village, where the government also housed Arabs brought under Arabization.¹⁵⁴

U.S. forces in nearby Makhmour facilitated mediation in the village in June 2003.  At the initial meeting, the battalion commander, Lt Col. DeOliveira, explained that U.S. forces would not be involved in decision-making, and would limit their role to bringing the disputing parties together.  The parties then agreed on a panel of Iraqis made up of the Kurdish mayor of Makhmour, the Kurdish mukhtar [local community representative] of Makhmour, and an Arab imam from al-Qayarra [a predominately Arab area west of Makhmour] to resolve the disputes.  A map of the village, drawn up in 1941 by British officials, assisted the process.  The U.S. observers and the Iraqi panel also limited the dispute resolution process to the ownership of the houses in the Haji Hussain neighborhood of Dogurtkan, leaving disputes over farmland ownership undecided.  Perhaps more controversial, the panel excluded any claims by the Arab residents of al-Nasr village from consideration, according to the U.S. record of the meeting: “It was agreed by all parties, even the Arab observers at this meeting, that no Arab has a legitimate claim to the Arabization village of al-Nasr.”¹⁵⁵

The mediation took place in an open, Bedouin-style tent at the ruins of the former Haji Hussain settlement of Dogurtkan village, and lasted just over one hour.  The mediation was led by the three-member panel, assisted by Kurdish officials from the Housing and Agriculture departments of Makhmour.  The panel listened to claims of different villagers, consulting with other Dogurtkan villagers, the property records, and the historic maps to determine who could legitimately return to the village.  Several other Arab leaders, including the mayor and police chief of al-Qayyara, also came to observe.  Several Arab residents came to press claims to their homes in al-Nasr, but were told by the U.S. observers that this fell outside the work of the panel.  The panel granted thirty-two families the right to return to the village, including four Arab families.¹⁵⁶

The Dogurtkan mediation had a number of shortcomings.  First, the limiting of the panel’s power to exclude the disputes over al-Nasr village avoided settling some of the most difficult disputes.  Most of the Arab residents of al-Nasr had long fled from the area, and so were not present to press their claims.  When Human Rights Watch revisited Dogurtkan in September 2003, the rebuilding of the houses had begun, with the assistance of Qandil, a Swedish humanitarian organization.  However, none of the four Arab families who had their claims affirmed by the panel had returned to the village, apparently fearing hostility from their Kurdish neighbors—a typical problem faced also in the Balkans, where community hostility is one of the major impediments to effective returns.

The major policy issue of how to balance the rights of Arabs who had lived in al-Nasr for more than fifteen years with the claims of the Kurds who were expelled was not resolved: the panel merely re-affirmed the rights of those who were living in Dogurtkan prior to Arabization, and did not consider the rights or humanitarian needs of the Arabs who came under Arabization.  Even if a policy decision is made to re-affirm the rights of the displaced Kurds at the expense of the secondary Arab occupants, a comprehensive property resolution process will also need to consider alternatives for the displaced Arab residents.  The very short period of time allotted to the mediation—little more than an hour—also suggests that some of the more difficult property issues were side stepped by the panel.  Without nationwide standards for resolving property disputes, the decision making process will be inevitably ad hoc, and determination of rights will depend unduly on the whims of the panel.

Despite these shortcomings, the mediation in Dogurtkan provided important insights into the feasibility of a nationwide, Iraqi-led property restitution process.  The existence of a wide variety of Iraqi documentation, including property deeds, detailed maps, and the records of agricultural and housing departments, provided a solid basis of documentation for the resolution of both rural and urban disputes.  Human Rights Watch found that such records existed throughout the north, and only a small part appears to have been destroyed.  Succession records and home registration tend to be less common in rural areas, but in Dogurtkan the villagers themselves helped recall who used to live in the village.  The Kurdish and Arab officials were willing to work together in Dogurtkan to resolve their disputes, and both parties demonstrated a willingness to compromise and to agree on common standards of proof.  After the dispute was resolved, humanitarian assistance to rebuild the village was obtained quickly.  The ability of the Iraqi parties to reach an agreement, even if flawed, is an encouraging sign, particularly in light of the security situation that makes a prominent international role in property dispute resolution unlikely.

Case Study: Al-Bashir village

U.S. forces in Kirkuk also conducted a mediation involving the formerly Turkoman agricultural area of al-Bashir, located south of the city of Kirkuk.  According to one of the Turkoman leaders, Imam Qanbar Mahmud Ridha al-Musawi, al-Bashir was a thriving Turkoman area of some 700 families, who owned some 48,000 dunums of farmlands.  Al-Bashir was home to seven mosques, five schools, and a large hospital.  The outlawed Islamic Da’wa Party was active in the area, according to the imam, and in the early 1980s, Iraqi security forces began arresting young men from the village, many of who were later executed.  In 1986, the entire community was expelled and moved to communal compounds:

In 1986, security officials started to arrive to the village, informing us that we should prepare to leave the district.  Days after this, they came and brought us a bunch of keys with numbered medals attached.  They said there were compounds on the road to Tikrit and that we had to move to these compounds.  There were six compounds: al-Qadisiyya, Dhi Qar, Shahid, Nahrawan, Yarmuk, and Saddam.¹⁵⁷

Most of the Turkoman families of al-Bashir were never compensated, although a small minority received some money for their lost houses.  About one year after their initial displacement, almost all of the Turkoman families were dispersed to cities throughout Iraq, including Kut, Basra, Arbil, and Diyala, without being provided with housing.

After the displacement of the Turkomans, the Iraqi government embarked on a major irrigation project in the al-Bashir area, greatly increasing the productivity of the land.  In the mid-1990s, the government began resettling Arab tribesmen in the area, offering them twenty-five dunums of irrigated farmland on annual leases.  More than 200 Arab families moved to the area, including some who had lost their original lands when they were developed as oil fields in the ‘Umar Ibn Khattab area.

During the 2003 war, the Arabs did not flee the al-Bashir area.  According to the imam of the village, this was due to the fact that Kurdish Peshmerga did not take control of the area: “When the coalition forces approached Kirkuk with the Kurdish Peshmerga, the Arabs fled spontaneously, and those who remained were attacked.  Our area was different, because the coalition forces didn’t take control of our district, so the Arabs just stayed in our places.”¹⁵⁸

Tensions quickly grew as Turkomans started returning to the area and demanding their lands.  The Turkomans began to threaten the Arabs, who insisted that they would only leave after a decision on the property dispute was made by a new Iraqi government, arguing that they came to the village lawfully, and would only leave under the law.  According to Col. George, who initiated the mediation, the situation came to a head one day when the Turkomans came to inform him that all of the displaced Turkomans from al-Bashir intended to march on the village, and that they would kill every Arab who remained.  In order to avoid violence, the U.S. troops in Kirkuk initiated a mediation of the dispute in early September 2003.

The mediation was not voluntary, according to the Arab leaders, who told Human Rights Watch that Col. George had given them a choice: either negotiate or “they would bring a judge who would cancel all of our agricultural contracts within one hour and we would be kicked out within a week,” a threat Col. George confirmed to Human Rights Watch that he made.¹⁵⁹

The mediation in al-Bashir was led and controlled by U.S. authorities, and did not involve a panel of Iraqis, although Iraqi officials from the agricultural department of Kirkuk were involved in an advisory role with the U.S. mediators.  Unlike the Dogurtkan mediation, where an Iraqi panel actually settled property disputes, the al-Bashir mediation was an explicit short-term agreement, leaving the long-term issues of property-ownership unresolved.  Among other things, the agreement provided for the allocation of thirteen dunums of land for the winter agricultural season, on a non-renewable basis, to each landless Arab family living in al-Bashir, and that Arab farmers be granted the winter harvest.  Decisions on land allocation would be made by a committee composed of representatives of the local agricultural directorate and coalition forces.  Complaints relating to compensation claims must be submitted within sixty days of the signing of the agreement to a commission set up for this purpose, composed of representatives of Taza district agricultural department, Kirkuk directorate and coalition forces.  Arab families originally from outlying areas and who did not own a place of residence in the village would be required to leave the village within a year of the signing of the agreement.  Returning Turkoman families would not be allowed to enter the village, except by invitation, during the period in which Arabs remain on disputed land. 

The Iraq Property Claims Commission

In January 2004, the Iraqi Interim Governing Council (IGC), appointed by the U.S.-led coalition, approved the establishment of a new body – the Iraq Property Claims Commission (IPCC) – as a successor to the IPRF.¹⁶⁰  The Legal Committee of the Iraqi Governing Council (IGC) played a crucial role in the development of the IPCC Statute, having substantially revised an original draft prepared by the CPA’s Office of Human Rights and Transitional Justice.  The Statute establishing the IPCC entered into force on January 15, 2004, but a final version, along with guidelines and instructions for implementation, were not issued until June 24, 2004, just days before the handover of governing authority to the Iraqi Interim Government headed by Prime Minister Ayad ‘Allawi.¹⁶¹ CPA Regulation Number 12 included an “amended and restated” IPCC statute, specified to become effective on July 1, 2004.¹⁶²

i. Article One of the Statute states that the IPCC “shall resolve real property claims in a fair and judicious manner.  The IPCC shall encourage the voluntary resolution of claims.” The Statute provides for the nationwide settlement of property claims arising between July 17, 1968 (when the Ba`th Party seized power in Iraq) and April 9, 2003 (when Baghdad fell to U.S.-led coalition forces).¹⁶³  The claims in question, as set out in Article Nine of the Statute, cover property confiscated or seized or acquired for less than appropriate value by the former governments of Iraq for reasons other than land reform or lawfully used eminent domain, or as a result of opposition to the former governments of Iraq, or as a result of ethnicity, religion, sect of the owners, or for purposes of ethnic cleansing;

Article Nine also covers claims arising between March 18, 2003, and June 30, 2003, covering real property confiscated or seized or forcibly taken for less than full value for reasons of the owner’s or possessor’s ethnicity, religion or sect, or by individuals previously dispossessed by the former governments.

The Statute provides for the appointment of five judges to the Appellate Division, one of them to be nominated by the judicial authority of the Kurdistan Regional Government, experienced in the adjudication of property disputes,¹⁶⁴ and for the establishment of a Regional Commission in each of the country’s eighteen governorates with responsibility for adjudicating claims in the first instance.¹⁶⁵  Each Regional Commission is chaired by a judge and also comprises the directors of the governorate’s Office of Real Estate Registry and Office of State Property, or their representatives.¹⁶⁶

Decisions of the Regional Commissions are subject to appeal within sixty days of their issuance to the IPCC’s Appellate Division, whose judgment is final.¹⁶⁷  The revised Statute adds that if the non-prevailing party occupies the property in question and has no other property they would be “granted a prescribed period of time to surrender possession of the premises.”¹⁶⁸ The Statute provides that all claims be submitted by June 30, 2005; any other claims subsequent to that date “can be referred to the Iraqi Court system, which shall apply the principles included in this Statute.”¹⁶⁹ The revised Statute states that “the Iraqi Interim Government shall ensure that the IPCC has the necessary funds to discharge its administrative duties and that the Regional Commissions and Regional Secretariat are provided with appropriate premises.”¹⁷⁰ The matter of funding for purposes of compensation or resettlement is not addressed by the Statute.

A CPA official in Kirkuk told Human Rights Watch in January 2004, that the mechanisms provided for in the Statute were expected to be in place within two months, but, as noted, they were issued only in late June 2004.  Paul Harvey, CPA Coordinator at Kirkuk Governorate, said that the CPA had “deliberately stayed in the background” on this issue, seeing its role as limited to working with the property commission and assisting in establishing the legal mechanism for the return of seized property and finding durable solutions for the forcibly displaced.  “The aim is to have a caseworker working towards finding a mediated solution at first,” Harvey said,

with a compensation package available as incentive to use the mediation route.  Otherwise, the case would go before a formal claims commission, in other words a tribunal, where there would be little or no compensation. It’s the more confrontational route, with only a winner and a loser.¹⁷¹

Both the CPA and Iraqi officials expected the bulk of the claims to be lodged in Kirkuk, where decades of forced population transfers and their replacement with other populations in implementation of state policy had given rise to numerous property disputes, and this is reflected in the fact that seven offices have been opened there, including two mobile units. Representatives of Kurdish and Turkoman political parties told Human Rights Watch that they welcomed the IPCC Statute issued in January and expressed optimism that it would result in significantly reducing tensions arising out of property disputes in Kirkuk especially.

In its last weekly report, dated June 19-28, 2004, the CPA said that more than 6,000 claims had been received at twenty-two IPCC offices in ten governorates, and that judicial nominees had been identified in seventeen governorates.¹⁷² The report did not provide numbers for the claims filed in the separate governorates or indicate which, if any, had been reviewed and filed, thus starting the sixty-day appeal period. Iraq’s Judicial Council put forward the names of three judges as nominees for the IPCC Appellate Division, according to one council member, but as of mid-July 2004, their appointments remained subject to confirmation.

Two of the original Statute’s key provisions had been problematic, straining relations between CPA and Iraqi officials on the one hand and between different ethnic communities on the other.  Article 5 stated that “The Parties shall submit the claim to the Regional Commission where the property is located,” as opposed to where the claimants are currently residing.  CPA officials expressed concern that this requirement, introduced by the Iraqi Governing Council, would only encourage internally displaced persons to return to Kirkuk to lodge their claims and effectively remain there before the city was able to cope with such an influx.  They said this might lead to further instability and increase the likelihood of outbreaks of violence, given that “it makes more sense to move paper around as opposed to people.”¹⁷³  The insistence that claims be submitted in locations where disputed property is located was seen as having a clearly political motive, since it would result in a marked increase in the number of Kurds living in and around Kirkuk at a time when crucial discussions about the nature and scope of federalism in the Kurdish region and the future of the oil-rich region of Kirkuk were taking place. In the revised Statute, claims can be filed at any IPCC office, “including any properly designated IPCC office outside Iraq.”¹⁷⁴

The question of finding durable solutions for the Arab families brought by the former Iraqi government to northern Iraq under its Arabization policy, particularly in Kirkuk, where the majority of such families remained following the 2003 war, has apparently not been resolved.  The IPCC Statute states that “Newly introduced inhabitants of residential property in areas that were subject to ethnic cleansing by the former governments of Iraq (i) may be resettled; (ii) may receive compensation from the state; (iii) may receive new land from the state near their residence in the governorate or area from which they came; or (iv) may receive compensation for the cost of moving to such area.”¹⁷⁵   The question of where these Arab families are to be resettled has not been defined in the revised Statute, the wording of which appears to exclude Kirkuk and its environs.  The task of resolving and implementing these particular provisions of Article 10 of the IPCC Statute is assigned to the Ministry of Displacement and Migration.¹⁷⁶ Among other things, this ministry is also charged with developing “a national plan to resolve the full range of IDP and refugee issues, to include property restitution or compensation, citizenship, and access to government services.”¹⁷⁷

The CPA told Human Rights Watch that they recognize that Arabs will need to give up property, but that in such a potentially volatile situation the process has to be controlled and carried out in a legal and orderly manner.  The CPA said that those Arabs who wish to resettle in places other than Kirkuk will be helped in the process of leaving through financial assistance, help in finding jobs and other practical measures, but, as noted, the revised Statute and the accompanying operating instructions fail to specify such features or how they will be implemented. CPA officials told Human Rights Watch that its approach will be to emphasize that all resettlement by Arabs be voluntary.  “We will not insist that people should go, we are seeking the middle ground,” one said.  “Past injustices have taken place and will be addressed, but you do not address one injustice by creating another.  The rights of the Arabs have to be respected and we want to establish a mechanism for all parties involved”.¹⁷⁸  This position was echoed by others within the CPA with whom Human Rights Watch met: “I don’t think it is right for us to say where someone should live,” Stacy Gilbert told Human Rights Watch: 

There is a new generation of Arabs that has grown up in Kirkuk and has never lived anywhere else.  We would like to enshrine respect for the right of residence, with the caveat that you cannot live in someone else’s property.  Otherwise, if you pay rent for a property or purchase it within the law, you should have the right to live in the place of your choice.¹⁷⁹

Representatives of Kurdish political parties in Kirkuk told Human Rights Watch that they support the orderly and fair resettlement of Arab families brought by the previous government under the Arabization policy once they vacate disputed property, and that their respective political parties were prepared to assist in this effort.  They stressed, however, that every effort should be made to resettle such persons outside the Kirkuk region, preferably in their governorate or region of origin.   Rizgar Ali, a PUK official told Human Rights Watch:

We have repeatedly talked to the Americans about the need to find a solution to the problem of the displaced, and that it requires financial assistance.  The Arabs brought to Kirkuk from the south have done us an injustice and they have come here as a result of an unjust policy.  Their continued presence here will only contribute to instability.  We are prepared to help.  For example, if an Arab had held a job as a state functionary, then we would do our best to get him transferred to the same post but in his governorate of origin.¹⁸⁰ 

Najad Hassan, a KDP official, expressed similar views:

We too are asking for a peaceful solution to the problem of the Arabs brought here by the previous regime, and it is essential that they return to their regions of origin while taking into consideration the practical problems involved in such a process.  But to delay such returns will only create major difficulties later on because the Kurds cannot put up with much more … We regret that the occupation authorities have not helped us in implementing this policy, and we are afraid of one thing, that our citizens will come to the conclusion that the only way these Arab families will leave is through force, something we all want to avoid.  We ask the coalition authorities to put in place a speedy program of resettlement for the Arabs, but they tell us that they cannot put themselves in a position of deciding who should stay and who should go.¹⁸¹ 

Saadettin Ergec, of the Iraqi Turkoman Front, expressed different concerns:

“In the beginning the coalition authorities showed a marked bias in favor of the Kurds, but we told them if this continues it would lead to a deterioration in relations between the Kurds and the Turkomans … There has been a significant number of Kurds converging towards Kirkuk, who are now living in former security forces buildings, garrisons and the football stadium.  Why has the coalition between the Turkomans and the Arabs from the south come about?  It was the Kurds who made it happen … We are afraid of their intentions.¹⁸²

Senior KDP and PUK officials told Human Rights Watch that one of their principal concerns about allowing the large number of Arabs who were resettled under Arabization to remain in Kirkuk even after the settlement of property disputes is that this would significantly increase the Arab population in the city.  In the event of a referendum being held to decide the future status of Kirkuk-- namely, whether it should be included within a federal structure for the northern Kurdish region, the number of Arab votes would be significant.  They said the Kurdish leadership might be prepared to discuss allowing such Arabs to remain provided that there was a watertight guarantee that they would not be granted voting rights in such a future referendum.¹⁸³

As noted above, as of the end of June 2004, twenty-two IPCC offices were reported to be operating and receiving claims. But other key steps had not been taken to implement the provisions of the IPCC Statute. Judge Dara Noureddin, a member of the former IGC and head of its Legal Committee, expressed his frustration to Human Rights Watch about the slow pace of developments in this regard, saying that by March 2004 the CPA had not approved the implementing regulations.¹⁸⁴  This belied the optimism expressed by CPA officials at the start of 2004 that mechanisms for the receipt and assessment of property claims could begin as early as mid to late February in some areas.  One senior CPA official, who did not wish to be identified for this report, told Human Rights Watch in early February that it was “a question of balancing the realities between getting things started and getting it right,” and that “Iraqi confidence in the system is crucial to making it work.” 

Among those realities was the issue of insufficient funding.  According to the CPA, the Iraq Supplemental bill approved by the U.S. Congress for the Iraq post-war reconstruction program provided for $35 million for property-related compensation claims, of which $5 million was earmarked for administration costs.¹⁸⁵  “This is not enough even for Kirkuk,” the CPA official told Human Rights Watch, adding that other ways would have to be found to make up for the expected shortfall, such as linking up with other international assistance programs addressing housing and similar needs.

The question of whether Arab families brought to Kirkuk as part of Arabization should have the right to continued residence in or near the city following the settlement of property claims remains unsettled, athough the CPA had insisted it must be addressed. Just as the issue was not dealt with under the original or revised IPCC Statutes, it was similarly deferred in the Transitional Administrative Law (TAL), signed by the IGC on March 8, 2004.¹⁸⁶  The TAL, which effectively laid down key constitutional principles for the new Iraqi state during the period of transition, simply referred back to Article 10 of the IPCC Statute and reiterated the general principles contained therein.  Article 58(2) of the TAL reads: “With regard to the individuals newly introduced to specific regions and territories, it [the Iraqi Transitional Government] shall act in accordance with Article 10 of the Iraq Property Claims Commission statute to ensure that such individuals may be resettled, may receive compensation from the state, may receive new land from the state near their residence in the governorate from which they came, or may receive compensation for the cost of moving to such areas.”  Neither did the TAL affirm the principle of the right of Iraqi nationals to reside in the areas of their choice.  What the TAL did provide for, however, was the basis for a mechanism whereby the future government could address the redrawing of administrative boundaries of key governorates by the government of Saddam Hussein for the purposes of effecting demographic changes as part of its Arabization policy.¹⁸⁷  As part of the concessions made by the Kurdish leadership during the TAL negotiations, in return for other political gains, the question of the future of Kirkuk was deferred “until after these measures are completed, a fair and transparent census has been conducted and the permanent constitution has been ratified.”¹⁸⁸

The importance of moving ahead speedily on the issue of property claims settlement was highlighted during Human Rights Watch’s visits to Kirkuk and neighboring areas in January and February 2004.  With no visible movement towards the establishment of mechanisms, many more internally displaced persons expelled from the city by the former Iraqi government had lost patience and were returning with their families to Kirkuk, with little or no assistance with respect to housing and other basic amenities.  Some told Human Rights Watch that Kurdish political parties had encouraged them to return, though this was denied by Kurdish officials (see below).  Many returnees were living in makeshift accommodation, principally abandoned government buildings such as former security or Ba`th Party premises, former ministry buildings, warehouses, factories, and military garrisons, many of which were heavily  damaged during the war in March and April 2003.  The more “fortunate” ones were living in tents provided by the PUK or Turkoman officials (see below).  They added to the number of internally displaced already there since the fall of the former government, who were living in dire conditions without adequate shelter, electricity, running water, or food supplies, and with little physical security.  Winter conditions further compounded these problems.  At the Kirkuk governorate building, Human Rights Watch found several Kurds who had come to seek assistance on behalf of their families living in such conditions, seeking (for the most part unsuccessfully) to have electricity or running water supplied to their makeshift communities.  The subsequent deterioration of the security situation in Kirkuk, indeed an increase in the number of attacks against civilians and officials alike as well as rising tension between the diverse ethnic communities, has also affected vulnerable groups including IDP communities. 

One returning displaced person Human Rights Watch interviewed, a Kurd who had been forcibly expelled with his family from Kirkuk to al-Ramadi (west of Baghdad) in 1993, was living in an abandoned military garrison on the outskirts of Kirkuk.  Amir ‘Ali Ahmad told Human Rights Watch:

There are about forty-five families, including three Turkoman families, expelled from Kirkuk Governorate and living in a scouts’ camp.  They do not have any shelter and cannot afford to rent a home.  We keep going to the local officials to ask for help, but they tell us that they have no authority to expel the people occupying our homes.  They tell us we should wait until a legitimate government is in place, and after that they will find solutions to our problems, either by giving us financial compensation or municipal land.  We now have a big problem concerning our security.  We need continuous protection because almost every day there are attacks against us with machine guns in order to frighten us and to force us to leave the area.  We do not know who these people are who attack us.  We live in the center of an Arab and Turkoman area and it is not safe at all.¹⁸⁹ 

Another Kurdish man who had come to Kirkuk Governorate to seek help told Human Rights Watch that he represented the interests of 107 families previously expelled from Kirkuk and now living in similar conditions in Rahim Awa Garrison on the Kirkuk-Arbil road.¹⁹⁰  Yet another told Human Rights Watch he had come to Kirkuk Governorate on behalf of forty-one displaced Kurdish families who were now living in the former General Security Directorate of Kirkuk:

Even here we are under constant threat from the governor of Kirkuk because he tells us that such places are not fit for our families to live in.  But these families have no other shelter.  All of them were expelled from Kirkuk and have returned from various parts of Kurdistan, and there are many others.  There are at least fifty-five sites in Kirkuk where families who returned are living in former government and military buildings, and they are waiting for a political decision from the new Iraqi government to resolve their residence problems.  Most of the families who returned to Kirkuk had been living in rented homes when they were expelled, so they have no proof or any property to claim.  Their original homes had been confiscated and sold several times over to Arabs.¹⁹¹

The Deputy Governor of Kirkuk in charge of IDP issues, Hasib Rojbayani, told Human Rights Watch that he estimated there were some 15,000 persons who had returned to Kirkuk and its vicinity living in similar conditions.¹⁹²  He expressed dissatisfaction with what he described as the CPA’s “passive” policy, saying that they showed “no cooperation” on this issue. 

We do what we can for these returnees, but our means are limited.  We have asked the Kurdistan Regional Government to build housing to provide shelter for them, and have obtained their agreement in principle … Five days ago I commissioned a survey to find out the needs of these communities in Kirkuk city, while at the same time working with the CPA to have a contingency plan in place in case of an emergency in the city.¹⁹³

Rojbayani also acknowledged security concerns with regard to some IDP communities: “Some of them have come under threat,” Rojbayani said.  “They are shot at by saboteurs and remnants of the former regime.  We try to help them by offering them protection, but the police patrols we can provide are few.  We need to find them alternative accommodation.”¹⁹⁴

U.S. military personnel in Kirkuk also admitted that there were security concerns: “The U.S. army cannot go round protecting people in Kirkuk,” said Staff Sergeant Heufelder.  “We do not have enough resources.   We are fortunate enough that we rebuilt the local police force, and it is their job to protect the civilians.”¹⁹⁵  They also confirmed the existence of an emergency plan to cope with a new influx of returning IDPs.  “Major steps have been taken,” said Staff Sergeant Heufelder. 

We have secured a warehouse in Kirkuk where we are stockpiling tents, blankets, heaters, foodstuffs.  Our current distribution plan cannot cope with a large influx and the food, energy and water needs of yet more IDPs, who had been returning at a rapid rate.  Right now it’s a slow trickle, but spring will herald mass returns in my opinion.  We have been trying to keep returns to as few as possible but there are many pull factors.  There is a dire need for more help and monitoring by aid agencies.¹⁹⁶ 

Some within the CPA opposed the idea of stockpiling emergency supplies in Kirkuk, on the basis that once this became known to IDP communities it would only encourage further premature returns to the city.  “The idea of setting up a warehouse in Kirkuk would cause more problems than it resolves,” Stacy Gilbert said. 

The main warehouse should be in Arbil, which is only one hour away from Kirkuk.  It would be a good idea for CMOC to focus on securing contracts with trucking companies who would transport aid from Arbil to Kirkuk in the event of an emergency.  We have been talking to CMOC about this in the past few days.¹⁹⁷

Lack of agreement between the CPA on the one hand and Kurdish political parties on the other over how to deal with IDPs wishing to return to Kirkuk and its environs also undermined the implementation of effective policies aimed at assisting IDPs in the short-term.   In late January 2004, Human Rights Watch found that there was still no cooperation between the KDP and the PUK, neither a unified policy being implemented over how to manage IDP returns nor a common understanding of CPA policy, and as of mid-July 2004 that situation appeared to be unchanged.  There was suspicion on the CPA side as to the motivation behind the assistance extended by both KDP and PUK to displaced families wishing to return to their original place of residence, particularly Kirkuk.  Given that over half of the IDP population expelled to Sulaimaniyya governorate was originally from Kirkuk and its environs, most of the returns to the city have been from PUK-controlled areas.  The PUK’s Minister of Human Rights, IDPs and the Anfal, Salah Rashid, told Human Rights Watch that the PUK had run only a limited assistance program for IDPs wishing to return to Kirkuk.

About 300 families have returned to Kirkuk recently and the PUK provided them with tents.  We offered them no other assistance.  They have no basic services such as running water or electricity.  We told them this but we do not try to convince them not to return.  It is their right.  We are trying to transfer their ration cards to Kirkuk so that they can get help that way.¹⁹⁸ 

The PUK provided another 200 tents to Turkoman families returning to the village of al-Bashir, located in the district of Taza in Kirkuk Governorate.¹⁹⁹  Rashid told Human Rights Watch that the distribution of tents was suspended some two weeks earlier “for security reasons.”  However, Human Rights Watch understood that the change of policy had come about as a result of pressure being placed on the PUK from CPA officials.  The CPA would not comment when asked by Human Rights Watch.

The KDP, on the other hand, said that it was pressing ahead with its assistance program for IDPs returning to their original homes.  Serwan Mohamed, an official the Ministry of Humanitarian Assistance and Cooperation in Arbil, told Human Rights Watch that an IDP liaison office was in the process of being established within the ministry to deal with such matters.²⁰⁰  He said that since the fall of the former government and up to January 2004, over 4,000 families had returned to Kirkuk from KDP-controlled areas.  “We want to help those who wish to return to Kirkuk and elsewhere.  We do not encourage returns, but if they wish to return we must help them by providing them with assistance … I expect the situation to become even more tense in the coming period.  We have told the PUK that they should not encourage returns for political purposes.”²⁰¹ 

During a visit in January 2004 to the village of Qara Hanjir, located north east of Kirkuk city, Human Rights Watch found that some fifty families had returned there in recent weeks from the nearby town of Chamchamal.  Qara Hanjir was one of the many villages destroyed by the former Iraqi government during the 1988 Anfal campaign, and its inhabitants forced to live in a resettlement camp in Chamchamal.  The village later became a base for Ba`th Party and military officials, but the homes built for this purpose were deliberately destroyed by these Iraqi officials as they fled following the fall of the government in April 2003.  Human Rights Watch found that the returning families were living in extremely harsh conditions, many of them with children who had little protection against winter conditions, no running water or electricity, inadequate food supplies, and no visible means for families to generate income.   According to Pashkhan Qader Faraj, a Kurdish woman who had returned to Qara Hanjir with her husband and several young children: “We were afraid that if we didn’t come back to our village we would lose the right to return altogether.  At least this is what we heard from PUK officials in Chamchamal, who told us that it is possible for you to return but it would be best if you returned within ten days or so.”²⁰²  There were some reports in early July 2004 of Kurdish authorities in Arbil and Sulaimaniyya compelling resettled Kurds originally from Kirkuk to return to that city.²⁰³

“The policy of the KDP is neither to push nor tempt any family to return to Kirkuk, but we do not object either,” Serwan Mohamed told Human Rights Watch.²⁰⁴  To the extent that there was agreement on this with the CPA, Mohamed said that previously the CPA had objected to the ministry’s providing assistance to IDPs wishing to return to areas below the so-called “green line.”²⁰⁵  An agreement had been reached in December 2003, for an assistance program to those IDPs who had already returned to such areas, given that their living conditions were dire, but that no new returns would be encouraged.  In that context, according to the ministry’s records, some 2,700 families that had returned to Makhmour, Dibs, Altun Kopri, and Sinjar had received help from the Kurdistan Regional Government (KRG) in Arbil with the assistance of several non-Iraqi NGOs, some acting through local relief organizations.²⁰⁶  The assistance program was being carried out with the cooperation of local officials in the destination areas.  Most of the returning IDPs had been living in and around the cities of Arbil and Mosul, and a smaller number in the town of Kalak south of Arbil.  On the question of the settlement of property disputes in the foreseeable future, Serwan Mohamed told Human Rights Watch: “There should be cooperation between us and Baghdad over this.”