Mandate of the Representative of the Secretary General on the Human Rights of IDPs

02 Oct 2006

Progress has been made in Turkey, both in substantive terms of specific law and policy and more generally in the willingness to engage with interested parties ranging from the United Nations Country Team to civil society on issues of internal displacement in an open, constructive fashion.

I was encouraged in this respect by the candid dialogue between Government officials and civil society that took place in the course of the multi-stakeholder meeting on Thursday, 23 February, followed by the clear political commitment demonstrated by H.E. the Minister of the Interior Mr. Abdulkadir Aksu to the Colloquium of Governors on Friday, 24 February to address the issue of internal displacement.

This approach bodes well for future positive progress towards durable solutions for internally displaced persons in Turkey. In particular, continued, structured consultations with civil society would be important. In this context, I also welcome the agreement reached between your Government and the United Nations Country Team with respect to the execution of a project on “Support to the Development of an IDP Program in Turkey,” which should strengthen the partnership between the Government and the local United Nations representation on internal displacement issues.

I further emphasise my satisfaction with the wide range of Governors able to attend Friday’s policy session, and the openness shown by them and officials of the Ministry of the Interior towards my exploration of the way forward in dealing with displacement issues, from the point of view of the standards of the United Nations Guiding Principles on Internal Displacement.

Turning to substantive matters, the period of time since May 2005 has been marked by two major issues. The first is the substantial experience gained of the July 2004 adoption and subsequent initial implementation of the Law No. 5233 on the Compensation of Damages that Occurred due to Terror and the Fight against Terror, as well as subsequent amendments and implementing regulations.

The second development is the adoption at Cabinet level of the national strategy on internal displacement. I welcome both these developments as important steps forward, which demonstrate Turkey’s commitment to make concrete progress on issues of internal displacement. I valued the opportunity in the course of my visit to become more familiar with each of these steps and how their implementation has played out on the ground.

Integrated Strategy Document on Internal Displacement

The adoption by the Council of Ministers on 17 August 2005 of the Integrated Strategy Document on internal displacement entitled “Measures on the Issue of Internally Displaced Persons and the Return to Village and Rehabilitation Project in Turkey”, responds to an earlier recommendation I had made and is a statement of signal importance for future steps. I appreciate in particular the focus on the guidance provided by the United Nations Guiding Principles on Internal Displacement.

As an initial matter, I would strongly recommend that your Government take measures to publicise widely and in accessible fashion the Integrated Strategy Document, in particular towards civil society and internally displaced persons, in order that there is general awareness of the policy decisions taken at highest Executive level and consciousness of the foundation upon which next steps will build.

As an overarching strategy, the Integrated Strategy Document is necessarily composed in relatively general and abstracted terms of principle. The next step forward, which is my primary recommendation emerging from this working visit, would be for the Ministry of the Interior, in conjunction with other pertinent parts of Government and in consultation with civil society and internally displaced persons themselves, to develop a specific Plan of Action in order to turn the framework of the Integrated Strategy Document into concrete, practical measures of implementation.

In doing so, I would recommend continued use of the Guiding Principles on Internal Displacement to inform the formulation of the elements of the Plan of Action. The Guiding Principles serve in this respect as a useful reference tool to ensure that the Plan of Action is consistent with the international human rights obligations entered into by Turkey, and contribute strongly to the likelihood that the results achieved by the Plan of Action will be durable, long-term outcomes rather than of a transitory nature.

As a pillar of this Plan of Action, I would recommend that the Plan build on the recognition of the principle of voluntariness set out in the Integrated Strategy Document and explicitly recognise the major implications of the right to freedom of movement and to choice of residence; that is, internally displaced persons must have a real and genuine choice between (i) integrating themselves locally in the generally urban environments to where they have moved, (ii) returning to the places from which they originally fled; or (iii) moving to another part of the country.

For each of these choices to be genuinely open to internally displaced persons, the Plan of Action will need to flesh out a series of measures with respect to each of these environments in order to ensure that each of these choices is realistically open to the displaced persons in question. In particular, the exercise of the right to freedom of movement and to choice of residence depends on substantial measure on the security of affected persons, questions about which were raised by members of civil society with regard to return.

Several recommended a review of the village guard system and in this connection,I would note that there is need to reconcile ensuring personal safety for persons wishing to return with the need for ensuring State security; rather than being antithetical to one another, the two should be seen as mutually depending on each other. By assuring genuine exercise of the three solutions outline above, true closure to internal displacement in Turkey can come within reach.

To ensure implementation of the Plan of Action, it would be valuable to have a dedicated office at the Ministry of Justice devoted to the issue of internal displacement. Such a body should have staff specifically focused on promoting solutions to internal displacement and have sufficient authority to provide leadership in implementing the policy and in coordinating and monitoring the activities of the various government offices involved.

Compensation Law and implementation issues

In implementing the Integrated Strategy Document in a manner that facilitates voluntary and durable solutions to internal displacement, implementation of the Compensation Law represents one of the most important concrete steps Turkey has before it. If this legislation is implemented in a manner that is full, equitable and consistent, Turkey will have set a significant international precedent for providing remedies to the victims of internal displacement.

Initial experiences with the Compensation Law reveal several positive trends: the Damage Assessment Commissions have begun their work and early concerns about the law have been addressed through extension of the claims deadline and broadening of the categories of evidence that can be brought to support claims. Perhaps most important, Turkish civil society organizations and academic institutions have begun monitoring and analyzing the process and providing constructive suggestions on how it could be improved.

The multi-stakeholder meeting on 23 February demonstrated how greater formal involvement of civil society in the implementation, monitoring and progressive development of Turkey’s compensation program could be of great assistance in ensuring that it provides IDPs with durable solutions.

A good example of the role of civil society could play relates to the need for full implementation of the Compensation Law. In order to secure effective remedies for IDPs and legal finality for Turkey, it is in everyone’s interest to ensure that all potential claimants under the law have had a full opportunity to make a claim. However, as discussed on 23 February, some IDPs have been so marginalized by their displacement that they may not have access to information about the claims process, even where it has been published in the mass media.

Reports indicate that other IDPs have been traumatized by their experiences and therefore may fear negative consequences for claiming their legal rights. Under these circumstances, many potential claimants remain at risk of losing their opportunity to make a claim despite the extended deadline. These concerns highlight the importance of ensuring that planned public information campaigns include a role for civil society in outreach to the most vulnerable IDPs, including poor families, traumatized individuals, female-headed households, the elderly and the handicapped – those who need assistance finding durable solutions the most but are least likely to be able to access the compensation process on their own.

It is vital to ensure that public information on the compensation claims process is clearly endorsed by the state, in order to address any concerns of traumatized IDPs. However, civil society organizations are often best placed to provide information directly to marginalized IDP communities and should be encouraged to do so. A logical extension of this approach would be to encourage qualified civil society organizations – and particularly bar associations – to provide free legal advice and representation to IDPs in filing and pursuing their claims. This would benefit not only claimants but also the Commissions, which should be able to process their caseloads more efficiently if claims have been consistently well prepared prior to filing.

A second issue concerns the equitability of the damage calculation process. In order to meet the goal of providing durable solutions to displacement as well as formal legal remedies, the damages awarded by the Commissions should consistently be high enough to allow IDPs to recover some measure of the economic self-sufficiency they would currently enjoy had they never been displaced. Based on initial reports, some damage awards have been low and methods of calculating compensation have varied between the affected Provinces. A leading principle in the application of the law should be the need to preserve a mea

sure of proportionality between the losses IDPs have suffered and the compensation they receive. However, a significant obstacle appears to be presented by the level of discretion the current law and regulations permit the Commissions to exercise, not only in the calculation of damages but also in taking many other decisions during the claims adjudication process. While there is every indication that the Commissions are working in accordance with the law, the law itself does not appear to give the Commissions sufficiently specific guidance to ensure consistently equitable outcomes.

This raises a third general issue related to the overall consistency with which the Compensation Law is applied. Ensuring consistent application of the law would help to answer criticisms regarding the perceived independence of the largely government-staffed Commissions. Although proposals to increase the representation of non-civil servants or professionalize the Commissions should be seriously considered, the less room the Law and implementing regulations leave for interpretation, the less of a concern the formal independence of the Commissions is likely to be.

Clear legislative guidance that minimizes administrative discretion can protect the Commissions from accusations of partiality or undue influence while they address applicants’ concerns that ambiguities in the legal framework could prejudice the resolution of their claims. It is always difficult for legislators to anticipate all possible shortcomings in legal drafts, particularly in an area as novel and untested as the Compensation Law.

However, this underscores the importance of considering a formal review of implementation of the law to date, resulting in a new implementing instruction and, if necessary, amendments to the Law, which would comprehensively address concerns raised by the Commissions themselves, as well as claimants and civil society observers of the process. The result would be a process that would provide all parties with consistent, fair and foreseeable outcomes. Areas where concrete concerns have already been raised about discretion in the application of the law include:

  • Admissibility findings: It should be clarified that claims should not be rejected as inadmissible merely because the applicant has received some form of prior state assistance. Prior assistance may be deducted from compensation awards, but only after consideration of the full merits of each claim including calculation of compensation for other harms not addressed by any prior assistance. As a general matter, given the widespread nature of displacement during the state of emergency period in Turkey, claims should be presumed admissible unless evidence to the contrary exists, and decisions rejecting claims should be subject to appeal.
  • Claims processing: The current requirement that claims be processed within six months from their receipt appears likely to be unachievable. Although it is important to ensure that claims are processed without unjustified delay, international experience indicates that the order in which claims are processed may be a more decisive factor than speed. Consideration should be given to chronological processing, with claims decided strictly in the order they were filed. This approach would allow lists of claims to be made, updated and published, showing applicants precisely where their claim stood in the order of processing and approximately when they might expect a decision. Strict adherence to chronology will also shield the Commissions from any accusation of manipulation of the order of claims processing for inappropriate reasons.
  • Damage calculation: Clearer guidance on what types of harms can be claimed and standardized rules on calculating compensation would help to ensure consistency. For example, the legal framework should precisely regulate compensation for typical costs of displacement such as lost revenues from assets that claimants did not hold formal title to but which they possessed and used legally in accordance with local customs and practices. Another example is the cost of living in displacement, and particularly private rental payments. Since such revenue flows and costs can be calculated in general terms, claims proceedings would be far more efficient and outcomes more consistent if standardized compensation awards for different types of lost revenues (e.g. per head of cattle or acre of arable land per year) or costs (e.g. average rent in different regions of Turkey per family member per year) were set out in the law or instructions. This approach would accord with international best practice, replacing burdensome individualized damage calculation with streamlined evidentiary proceedings. Similar procedures can and arguably should allow calculation of standardized non-pecuniary damages in relation to criteria prescribed in the legal framework.
  • Appeals process: Although it is currently possible for applicants who dispute the Commissions’ decisions to seek a judicial remedy, this procedure cannot be thought of as an appeal. Such court proceedings represent an entirely new cause of action and do not give unsuccessful compensation applicants an opportunity to receive a hearing on whether the Compensation Law was correctly applied in their case. Although clearer and more comprehensive rules will help prevent inconsistent application of the Compensation Law, the only way to guarantee consistency would be a centralized administrative appeals procedure, allowing determinations to be made with regard to appeals on both admissibility and damage calculation.

There are many international precedents for legislative review processes resulting in improved remedies for IDPs, and my colleagues and I would be happy to provide further technical advice and discuss comparative international experience in the context of such a process. Indeed, we would be willing to send experts to Turkey to convene appropriate meetings specifically on property and compensation issues.

One important general principle is that a review process should include appropriate consultation with persons affected by the law, as well as civil society groups and academic institutions with demonstrated expertise in monitoring the implementation of the Compensation Law. In addition, the resulting changes to the legal framework for compensation should be retroactive, in the sense that claims decided or rejected on the basis of the old rules should be eligible for reconsideration under the new rules. This consideration argues for making any changes sooner rather than later, so as to minimize the potential administrative burden of having to re-open cases and re-examine claims.

Follow-up to the Hacettepe study

At the time of my working visit, the Study by Hacettepe University on “Turkey Migration and Internally Displaced Population Survey” had not yet reached its conclusions, though I understand that this is now imminent. I reiterate my earlier remarks that a study independently conducted represents an example of best international practice, which I welcome. While the Study should shed a degree of light on the numbers of internally displaced persons in Turkey, it should also be useful for the breakdown of disaggregated data on the internally displaced persons surveyed.

Such disaggregation will usefully illuminate the scope of particularly vulnerable groups and their various specific needs, and provide valuable pointers for areas that the Plan of Action will need to particularly address. I would see the Study as providing a springboard for the elaboration of the Plan of Action, based on clearer data than has generally been the case heretofore, and would encourage use of the Study’s findings in this fashion. I would also invite the Government to provide an opportunity for public and civil society feedback on the Study as published, in order to set its findings within a wider context before proceeding to an implementation phase by way of the Plan of Action.