To reconstruct or not to reconstruct

Sawsan Abou Zainedin & Hani Fakhani

This article is included in the Summer 2018 issue of Syria Notes along with other articles on the reconstruction debate.

Sawsan Abou Zainedin and Hani Fakhani are both Syrian architects and urban development practitioners with master’s degrees from the Bartlett’s Development Planning Unit at UCL. They co-found SAKAN, a programme aimed at developing alternative recovery-driven housing models in Syria.

It has been made clear that money for the reconstruction of Syria from the European Union and the international community will come only after a meaningful political transition process is underway under UN auspices. This was recently confirmed by the EU’s top diplomat Federica Mogherini at the second Brussels conference, Supporting the Future of Syria and the Region.

In the meantime, it looks like the Syrian government is not really concerned with the EU’s deliberations. The Syrian government has already embarked on its own reconstruction process, with the development of Basateen al-Razi—for which Bashar al-Assad personally laid the foundation stone in 2016—marking ground zero for the process, and setting the blueprint for the intended vision of the reconstruction of Syria.

Basateen al-Razi is one of two sites designated for reconstruction under Presidential Decree 66 of 2012. Decree 66 provides the legal and financial foundation to expropriate areas of unauthorised housing and informal settlements, and to redevelop them through private sector investments.
Areas designated in this decree are of particular economic and political importance, as they are strategically located in or around urban centres, and they were previously key centres of opposition activities.

The strict and excessive procedural requirements of Decree 66, coupled with the political context of the designated areas, and their poor and illegal conditions, enabled local authorities to expel a majority of the residents and deprive them of rights in the new development, with unfair compensation, or no compensation at all.

Procedural requirements of the decree coupled with other legislation facilitated private investors’ access to development of the designated areas at the expenses of their original residents. Private investors in the current Syrian context are mostly ‘regime cronies.’

Taken together, this suggests that the blueprint for the reconstruction of Syria set under Decree 66 is designed to manipulate the power of urban planning in order to engineer demographic change based on both economic and political interests.

Decree 66 is not the only law designed by the Syrian government as a means to manipulate urban planning and related housing, land and property (HLP) issues for political and economic interests. A set of other laws, put in place since early 2012, have played a part in the implementation of Decree 66 in the Basateen al-Razi development, and are forming a structure of unjust and discriminatory legislation to enable the government’s vision for the reconstruction of Syria.

Among these is Decree 63 of 2012, which allows the Finance Ministry to seize properties of people who fall under the Counterterrorism Law of 2012. This embraces the Syrian government’s broad interpretation of what constitutes terrorism, unfairly criminalising a large segment of the population without any due process or fair trial.

Decree 19 of 2015 is another problematic piece of legislation. It allows local administrative units (LAUs) to establish fully-owned holding companies to carry out work on their behalf, including managing all LAU properties. The assets managed by the holding companies and any of their subsidiaries are exempted from taxes and fees. This means that these holding companies benefit both from the advantages of operating under the company law and also from owning public assets. This decree provides a formal framework to award reconstruction and development contracts to corporations or investors and pay them with shares in the zone, at the expense of the rights of the original residents, as in the development of Basateen al-Razi.

Decree 11 of 2016 is also a problematic one. It suspends registration of property in registries closed due to conflict, including those in non-government held areas. This means that registered documents at any of the registries that were outside government control, including ones that were kept running by opposition entities, will not be recognised.

The latest and the most problematic of all is Law No. 10 of 2018. This law can be considered a systematic escalation of Decree 66, enabled by the other HLP-related decrees and laws. Law No. 10 empowers LAUs to create redevelopment zones within their areas to be designated for reconstruction. This entails LAUs re-registering property rights within the designated areas with extensive requirements for property owners and tenants to prove their claims to their properties in person or through legally appointed relatives. Failure to do so means that ownership reverts to the LAU, with no due compensation.

The procedural requirements of Law No. 10 suggest a significant potential for abuse and discrimination for the following reasons:

  • Only 50% of the Syrian land was registered before the conflict; and most local land registries have been either destroyed or suspended during the conflict;
  • A third of housing in Syria had been destroyed as of July 2017. The law provides no compensation or remedy for destroyed properties;
  • Over 11 million Syrians have been displaced internally or to other countries. The majority are not able to return and make personal claims within the time-frame of the law;
  • 70% of refugees lack the basic identification documents required to make a claim or to legally appoint a relative;
  • In particular, displaced populations from areas identified as anti-government cannot make personal claims, and cannot appoint legal agents, as this requires security clearance by the government. This is unlikely to be granted as suspicions of any affiliation with anti-government activities leads to highly abusive treatment by government security forces;
  • Hundreds of thousands of forcibly disappeared people in Syria cannot make personal claims, or appoint a legally recognised agent.

Within this context, the international community seems to have contradicting positions towards the reconstruction of Syria. Despite the strong and decisive message of putting reconstruction on hold until a political settlement is in place, different actors have chosen different trajectories for their work in different areas.

In government-held areas, high level international organisations and UN agencies are already engaged with ‘reconstruction’ efforts. They avoid the problematics of the term by categorising their projects as relief, rehabilitation, or stabilisation efforts.

The selection process of neighbourhoods targeted in these efforts lacks transparency, but is presumably significantly controlled by the Syrian government since it controls the security situation in the area. The majority of neighbourhoods targeted so far were part of local settlements resulting in population transfers and forced evictions of residents. Projects implemented have mostly failed to account for the rights of original residents.

This raises a serious ethical concern that the contribution of these international organisations and UN agencies could be seen as a ‘war crime dividend’ in view of the human rights violations and war crimes committed by the Syrian government in order to depopulate these areas.

In the current context of military dominance and political stalemate,  these projects raise a practical concern in relation to their impact on recovery and peacebuilding in Syria. Engaging with these projects seems to reinforce the unjust and discriminatory framework of the government’s approach to reconstruction, rather than challenging it. This creates new layers of grievances and injustice, further protracting the conflict.

These concerns obviously raise a question of accountability, not only regarding the Syrian government’s unjust frameworks, but also the role of the international community in reinforcing them.

In non-government held areas, the situation is more complicated. The conflict in Syria has had a devastating impact on these areas, with over half of the internally displaced people relocated there, and entire neighbourhoods razed to the ground. The vast population influxes to these already exhausted areas have put them under further strain, and have exacerbated the humanitarian needs—especially in terms of housing.

The populations in non-government held areas are amongst the most vulnerable to issues related to HLP rights. This is because they have no legitimate institutions that can be held accountable for this, and they are denied any means to demand accountability from the Syrian government. This puts a significant responsibility on the international community to establish an alternative mechanism for those people to document their threatened rights in a way that can have legitimacy in future land or property disputes.

Additionally, the response to the acute needs of housing in these areas has been limited to international humanitarian relief efforts, in the form of unsafe and inadequate temporary shelters, or to a commercial response resulting in generally unaffordable and extortionate prices being charged by private developers and landlords. This has significantly contributed to inflating the real estate market, including the rental one.

A March 2017 report on the property market in Azaz, in the Turkish-dominated area of northern Aleppo, showed that the rental market had reached twice that of Istanbul. The Stabilisation Committee in the region attributed inflation in the property market to the large influx of displaced people, the availability of livelihood opportunities, the lack of services and infrastructure in the surrounding areas, as well as inequality in wages between the local market and employees of the international humanitarian system living in the area.

Local councils do not have sufficient capacities, resources, or influence to provide housing solutions or to regulate the market. Increasing restrictions by neighbouring governments on imports of construction materials, and the continuous inflation of the construction market, have significantly reduced the ability of the affected population to lead on solutions for their own housing needs.
Yet with UN resolutions allowing cross border operations into Syria’s non-government held areas, there seems to be a missed opportunity to address the needs of the population in these areas in a structural way, rather than through emergency aid mechanisms.

The discriminatory legislation put in place by the Syrian government to dictate future reconstruction projects is not binding in non-government held areas, as the government does not have de facto authority there. This gives a chance for the international community to work with local actors in non-government held areas to set a precedent for how the discourse of reconstruction in Syria can unfold, should a just and inclusive framework be put in place.

This is not enough, however. A rights-based framework for recon­struction needs also to be enforced through accountability measures if it is to result in tangible outcomes when a political settlement is reached. Given this diverse and complicated context, shouldn’t the international community go beyond the dichotomy of ‘to reconstruct or not to reconstruct’ and instead work to develop new rules of engagement?

The ability of the Syrian government to enforce its own unjust approach to reconstruction, despite restrictions on international community funding, as well as the absence of any rights-driven alternative enforced by the international community, leaves a large portion of the Syrian population extremely vulnerable to being deprived of their property rights. This will definitely complicate any peacemaking process.

Refraining from engaging with reconstruction in Syria in the current context is not a solution. This only exacerbates the problem as it allows for all projects in Syria to be fully dictated by the government’s unjust legislation. While fighting this legislation should remain a priority for the international community, putting measures in place to resolve resulting disputes shouldn’t be of less importance.

Such measures must account for the compensation of those affected by the government’s unjust policies and consequent practices. They should also put in place a legitimate mechanism to document these practices and the potential resulting grievances in order to hold all involved actors accountable. This includes involved actors of the international community itself, potentially through the International, impartial and Independent Mechanism (IIIM).

It is not too early to engage with the reconstruction of Syria. Projects that aim to respond to people’s needs in a structural way must be funded in all areas. The international community, in this case, must make sure that funds do not contribute to the abuse of property rights, or go to actors and entities responsible for human rights abuses.

Financing for projects must also be conditioned to account for the rights of all residents including the displaced, and disappeared. This should be guided by the UN Pinheiro Principles on housing and property restitution, in the hope of creating a new and fairer blueprint for the reconstruction of Syria.
In other words, holding back funding does not hold back time, and the lives of millions are at stake while this is being debated. The more time the Syrian government has to implement its own framework for reconstruction, the more entrenched this framework will become, and the more hostile the environment will be to introducing new rights-based approaches. It is not the simplistic binary of ‘to reconstruct or not to reconstruct’ that we should be debating now. The ‘how’ is what we need to start looking for.