Measures must be taken by victims to restore their rights; notably preserving ownership documents
Introduction
On 20 January 2018, the Turkish Army and supporting forces affiliated with the Syrian National Army (SNA), operating under the Syrian Interim Government of the National Coalition for Syrian Revolutionary and Opposition Forces, launched the Operation Olive Branch offensive against Syria’s Kurdish-majority region of Afrin. As a result of this offensive, by 24 March 2018, Turkey occupied Afrin and its surroundings areas. Immediately following the operation, military groups began extensively and systemically looting the properties of Kurdish residents.
Months later, on 9 October 2019, the Turkish Army and allied armed groups affiliated with the SNA attacked the districts of Tell Abyad and Ras al-Ayn/Serê Kaniyê following the withdrawal of the U.S. troops from the region in a new assault into Syria termed “Operation Peace Spring”. The assault involved serious abuses of human rights against civilians and gave Turkey and its allies full control over Tell Abyad and Ras al-Ayn/Serê Kaniyê on 27 November 2019.
After SNA armed groups extended their control over the aforementioned districts, they wreaked havoc on them, committing numerous violations against civilians. The violations included the arbitrary seizure of property and the expulsion of their mostly indigenous owners, particularly Kurds, who were forced to flee their homes.
These property seizures have serious consequences. At the very least, they impede the ability of displaced Syrians to return to their homes. At their most serious, they allude to the forcible demographic engineering of regions in Syria. In this brief paper, STJ studies the issue of property seizures, investigating their consequences and outlining possible solutions to address them today or in Syria’s anticipated transitional phase. Additionally, we hope this paper will draw the attention of actors in Syria, both internal and external, to the seriousness of property seizures and the need include the issue in political negotiations.
The Practice of Real Estate Property
Since SNA forces entered Afrin and its surrounding area, they have decisively targeted the population’s historically Kurdish component. SNA forces have displaced Kurdish families by looting their properties and arbitrarily kidnapping and arresting Kurds across the region, sometimes leading to incidents of torture and disappearances. The SNA seized private and public property, both movable and immovable, focusing especially on private real estate. Independent International Commission of Inquiry on the Syrian Arab Republic (IICISyria) confirmed the prevalence of these practices, documenting systematic and repeated patterns of looting and property appropriation.[1] Families who had property seized were often faced with a devasting reality: property losses made it impossible to remain in their home cities, and impossible to return to them if they left.
The SNA started to make real appropriations in the early days of its invasion, claiming that the seized estates belonged to members of the People’s Protection Units (YPG) or to people had worked at institutions of the Autonomous Administration. However, our sources refuted the SNA allegations, confirming that appropriations were carried out randomly by writing “seized on the interest of an x group”,[2] on the walls of the property without asking who was living inside. Several people were also arrested on the allegation of affiliation with the YPG and the Autonomous Administration — even those who opposed the Autonomous Administration and had previously been arrested by its security forces.[3] Furthermore, even when the SNA succeeded in seizing the property of those who were affiliated with the Autonomous Administration, it did not consider whether those individuals were merely civil servants with the Administration, or forcibly recruited to the YPG, which had instituted a policy of compulsory recruitment in the areas the Autonomous Administrated controlled under the Self-Defense Duty law.[4]
The SNA also seized property on the pretext that the owners did not possess official property papers, neglecting the fact that sales in Tell Abyad and Ras al-Ayn/Serê Kaniyê are mostly based on the trust between the buyer and the seller and that the Syrian conflict has resulted in the loss or destruction of many identifying papers, including property documents.[5] Regardless, the SNA is not legally responsible for adjudicating property disputes — that is the mandate of an independent and impartial judiciary. Even those who provided proof of ownership of their property and managed to keep them were not spared by the SNA, with affiliated groups carrying out arbitrary arrests and demanding money from families for the release of their loved ones.[6]The SNA also imposed varying taxes on properties to drive their owners out of them, and hence, from the area altogether, making it easier for the SNA to seize property under the pretext of their owners’ absence.[7]
SNA armed group leaders, the Ministry of Defense in the Syrian Interim Government, and the Turkish government have failed to hold SNA members accountable for their arbitrary property seizures. That these groups have largely ignored them indicates their complicity in the practice and alludes to their intention to demographically change Kurdish-majority areas. Notably, property seizures continued outside of the context of Turkey’s military operations. The SNA emptied some homes from their Kurdish inhabitants and settled in them families – mostly their own– from outside Afrin and Ras al-Ayn/Serê Kaniyê.[8] Kurds who were allowed to stay in their homes were forced to pay taxes. Moreover, some properties were confiscated by decisions of local councils in those areas, including the home of the Kurdish activist Muhyedin Isso, which was turned into an institute for teaching Quran under the presence and supervision of the governor of Turkey’s Urfa.[9]
Bringing Syrians from different areas and settling them into the homes of indigenous Kurds demonstrates Turkey’s intention to demographically change regions in northern Syria which is now under the control and influence of Turkey and allied Syrian armed groups. Turkish President Recep Tayyip Erdoğan said “Turkey would seek to set up a safe zone in territories held then by the Kurdish-led autonomous administration in northeastern Syria to which between one million and three million Syrian refugees could return”. This statement was preceded by the Turkish government forcibly returning dozens of Syrians to northern Syria.[10]
Property Seizure Violates Local and International Laws
The arbitrary property seizures in Operation Olive Branch, Operation Peace Spring, and other Syrian areas violates many international instruments and conventions, including the basic human right to property, given that denying a person property rights deprives he/she of a safe and decent life. Article 17 of the Universal Declaration of Human Rights states:
- Everyone has the right to own property alone as well as in association with others.
- No one shall be arbitrarily deprived of his property.
Additionally, Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination of 1965 “States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights,” including “the right to own property alone as well as in association with others.” Both Syria and Turkey are signatories to this agreement.
Article 8 of the European Convention on Human Rights of 1950 states that “everyone has the right to respect for his private and family life, his home and his correspondence.” Moreover, principle 21 of the UN’s Guiding Principles on Internal Displacement states:
- No one shall be arbitrarily deprived of property and possession.
- The property and possessions of internally displaced persons shall in all circumstances be protected, in particular against the following acts:
(a) Pillage;
(b) Direct or indiscriminate attacks or other acts of violence;
(c) Being used to shield military operations or objectives;
(d) Being made the object of reprisal; and
(e) Being destroyed or appropriated as a form of collective punishment.
- Property and possessions left behind by internally displaced persons should be protected against destruction and arbitrary and illegal appropriation, occupation or use.[11]
Consequently, real estate seizures practiced by Turkish-backed SNA armed groups which forcibly displaced their residents, especially indigenous Kurds,[12] constitutes a clear violation of international instruments and covenants — including instruments and covenants that Turkey and Syria are party to.[13] And since those violations were committed on a large scale, systematically and with the knowledge of the SNA leaders and the Turkish government, they fall under Article 8 of the Rome Statute of the International Criminal Court of 1998 – entered into force in 2001 – which states: “The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”.[14] Article 7 of the same Statute confirms that the deportation or forcible transfer of a population constitutes a crime against humanity.
The property seizures also violate Syrian law. By analogy with stipulation of the Syrian Law, seizure acts are considered violations according to the Syrian Constitution’s Article 15, which states that “Collective and individual private ownership shall be protected in accordance with the following basis”:
- General confiscation of funds shall be prohibited;
- Private ownership shall not be removed except in the public interest by a decree and against fair compensation according to the law;
- Confiscation of private property shall not be imposed without a final court ruling;
- Private property may be confiscated for necessities of war and disasters by a law and against fair compensation;
- Compensation shall be equivalent to the real value of the property.
However, the majority of the seizures made in the areas we are addressing, if not all, were carried out without compensation.[15] Further, the seizure of Kurdish families’ real estate property, especially those families composed of less than three members,[16] and settling Arabs families from outside the region in them, violates Articles 18, 19, and 33 of the Syrian Constitution, which affirms the principle of equality among all citizens. Additionally, the SNA groups’ refusal to allow Kurds to return to their homes[17] constitutes a clear violation of Article 38 of the Syrian Constitution that says:
- Taxes, fees and overhead costs shall not be imposed except by a law;
- The tax system shall be based on a fair basis; and taxes shall be progressive in a way that achieves the principles of equality and social justice.
The decision also violates Article 50 which states that “The rule of law shall be the basis of governance in the state.”
In addition to violating the Syrian Constitution, the property right violations discussed in this report violate Article 771 of the Syrian Civil Code promulgated by Legislative Decree No. 84 of 1949, which affirms that no one may be deprived of his property except in cases determined by law, and in return for fair compensation. They also violate Article 768 of the same Code that says: “the owner has the sole right, within the limits of the law, to use, exploit and dispose of his/her property,” and Article 770 which confirms that “The owner of a property has the right to all its returns, products, and attachments, unless there is a text or agreement states the contrary.”
SNA members request for owners to present ownership documents also interferes with the mandate of the Syrian judiciary, violating the principle of independence stipulated in Articles 132 and 134 of the Syrian Constitution, as well as Article 51 which states: “The right to conduct litigation and remedies, review, and the defense before the judiciary shall be protected by the law.” The same principle was also stipulated in the Syrian Judicial Authority Law promulgated by Decree No. 198 of 1961.
In addition, Articles 723 and 724 of Syria’s Special Penal Code clarify that punishment for the crime of property extortion is imprisonment for up to six months for anyone who does not carry a document of ownership or disposition and seizes either property in whole or in part. The penalty doubles to one-year imprisonment if the crime is accompanied by threat or coercion against the targeted property owner. Prison time increases to three years if the extortion is committed by a group of two-or-more armed people. Article 635 of the same Code imposes a sentence of three months to two years imprisonment with hard labor on anyone who threatens or forces another to put his/her signature on a document or to write one containing a pledge or a discharge, harming the victim’s wealth or the wealth of someone else. The penalty increases to three years to fifteen years with hard labor if the perpetrator threatens the victim with a weapon.
The Syrian Penal Code currently does not impose strict, deterrent penalties against violators of real estate rights. Additionally, the Penal Code has not kept pace with international criminal law, which considers these property violations as war crimes and crimes against humanity — especially when they committed systemically and on a large scale during armed conflicts with the intention of demographic engineering. As the sanctity of private property and the impermissibility of its seizure has become a basic principle of customary international law, the Syrian Penal Code must be amended to align with the international conventions which ensure the right to property and criminalize its violation.[18]
To read the full report as a PDF, follow this link.
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[1] For more info, please check: Report of the Independent International Commission of
Inquiry on the Syrian Arab Republic (IICISyria) of 14 September 2020, paragraph 46, https://undocs.org/en/A/HRC/45/31 (last accessed: 24 January 2021).
[2] Ibid.
[3] For more info: “Real estate seizures, utilization, and royalties… Who protects property rights in Afrin?”, Enab Baladi, 22 July 2020, https://english.enabbaladi.net/archives/2020/07/real-estate-seizures-utilization-and-royalties-who-protects-property-rights-in-afrin/ (last accessed: 24 January 2021).
[4] For the provisions of the law, see: In detail … the Self-Defense Duty law of the Autonomous Administration of North and East Syria, Hawar News Agency, 22 June 2019, https://www.hawarnews.com/ar/haber/d8a8d8a7d984d8aad981d8b5d98ad984-d982d8a7d986d988d986-d988d8a7d8acd8a8-d8a7d984d8b0d8a7d8aad98a-d984d984d8a5d8afd8a7d8b1d8a9-d8a7d984d8b0d8a7d8aad98ad8a9-d984d8b4d985d8a7d984-d988d8b4d8b1d982-d8b3d988d8b1d98ad8a7-h20204.html (last accessed: 24 January 2021).
[5] For more info please see: “The Property Issue and its Implications for Ownership Rights in Syria”, The Day After and Peace & Justice Studies Association, p. 87, https://tda-sy.org/2019/07/01/the-property-issue-and-its-implications-for-ownership-rights-in-syria/ (last accessed: 24 January 2021).
[6] Paragraph 52 of the aforementioned Report of the Independent International Commission of
Inquiry on the Syrian Arab Republic.
[7] “Real estate seizures, utilization, and royalties… Who protects property rights in Afrin?”, Enab Baladi, 22 July 2020, https://english.enabbaladi.net/archives/2020/07/real-estate-seizures-utilization-and-royalties-who-protects-property-rights-in-afrin/ (last accessed: 24 January 2021).
[8] “Syria: Turkey-Backed Groups Seizing Property”, Human Rights Watch, 14 June 2018, https://www.hrw.org/news/2018/06/14/syria-turkey-backed-groups-seizing-property (last accessed: 24 January 2021).
[9] “Ras al-Ayn: IHH Turns two Seized Houses into Quran Institutes”, STJ, 11 August 2020, https://stj-sy.org/en/ras-al-ayn-ihh-turns-two-seized-houses-into-quran-institutes/ (last accessed: 24 January 2021).
[10] “Repatriation” of Syrians in Turkey Needs EU Action”, Human Rights Watch, 7 November 2019, https://www.hrw.org/news/2019/11/07/repatriation-syrians-turkey-needs-eu-action (last accessed: 24 January 2021).
[11] Principle 21 of the Guiding Principles on Internal Displacement, adopted in Austria in 1998 and established at the fifty-fourth session of the Commission on Human Rights, https://www.unhcr.org/en-us/protection/idps/43ce1cff2/guiding-principles-internal-displacement.html (last accessed: 24 January 2021).
[12] It is important to note that the forcible transfer or deportation from occupied territory of protected persons constitute a violation in itself, according to international humanitarian law, in accordance with Article 49 of the Fourth Geneva Convention of 1949. these violations are also considered war crimes in accordance with the convention establishing the International Military Tribunal in 1949. Nuremberg (Article 6-b). As well as the Rome Convention establishing the International Criminal Court (Article 8/2 – b). https://www.icrc.org/en/doc/assets/files/publications/icrc-002-0173.pdf
https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf
[13] According to Article 147 of the Fourth Geneva Convention of 1949, Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: unlawful deportation or transfer or unlawful confinement of a protected person…taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
[14] Article 8, Paragraph 2 of the Rome Statute establishing the 1998 International Criminal Court.
[15] “Turkey-backed forces seizing property in Syria’s Afrin”, HRW, 14 June 2018, https://www.hrw.org/news/2018/06/14/syria-turkey-backed-groups-seizing-property#:~:text=(Beirut)%20%E2%80%93%20Turkey-backed,Human%20Rights%20Watch%20said%20today (last accessed: 24 January 2021).
[16] Paragraph 47 of the report by the IICISyria issued in September 2020.
[17] Paragraph 49 of the report by the IICISyria issued in September 2020
[18] Jean-Marie Henckaerts: “Customary International Humanitarian Law”, ICRC, 2015, https://www.icrc.org/en/doc/resources/documents/publication/pcustom.htm (last accessed: 24 January 2021).
SOURCE ; stj-sy.orgstj-sy.org
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