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• There is a misalignment between guidelines on post-conflict property restitution and claims under customary law. • Restitution strategies are problematic in areas with incomplete population return and without records of land boundaries, occupation and value. • The willingness of refugees and IDPs to return to pre-conflict communities should not be assumed. • We observe three post-conflict trajectories of change of customary land tenure systems: erosion; adaptation; and replacement. • Further research is required around the erosion and adaptation of post-conflict customary tenure systems. Since the 1990s a body of soft international law and public policy has developed around property restitution after conflict. The Pinheiro Principles and the Voluntary Guidelines for the Responsible Governance of Tenure of Land, Fisheries and Forests (VGGT) both proffer remedies for property losses experienced due to violent conflict and forced displacement. These international guidelines for remediating harm caused by property loss or damage in conflict at best only partially address losses in customary tenure systems. This article has two goals: first, to delineate where the international guidelines are out of step with the nature of customary tenure; and second, to identify trajectories of change for customary land tenure systems after violent conflict. These two issues are fundamentally linked. The characteristics of post-conflict environments– contested authority structures, displaced and returning populations, and contentious land relations – make customary land vulnerable to expropriation and elevate the threat of asset loss for customary rights holders. This challenges the assumption that people can always return to rural agricultural livelihoods when displaced from customary land; that is only true if those customary land systems function the way they did before the violence. This article draws on a socio-legal analysis of secondary sources and qualitative data gathered by the authors through focus group discussions and semi-structured interviews in rural communities in Burundi, Liberia, and Uganda over the past decade. Because customary land tenure systems are prevalent over much of the territory currently affected by violent conflict in Africa, the Middle East, and Central Asia, the absence of specific restitution policies for customary tenure systems is a significant gap in international public policy. [ABSTRACT FROM AUTHOR]

ABSTRACT Mass displacement of people due to violence poses a unique set of challenges for property restitution when people return to their homes after a long absence. This is particularly evident in rural areas where the dominant form of land holding is customary tenure. Violence-induced displacement, unlike voluntary migration, challenges both customary and public legal-administrative structures. The lack of written documentation of customary holdings and the importance of the support of community leaders means that incorporating returnees back into a community can be easier for those who choose to return, while reclaiming property without physical return is nearly impossible. This article seeks to make three contributions: 1) to note the diversity of return processes after long displacements in terms of timing and demographics; 2) to demonstrate that the nature of the claims people can make on customary tenure systems is at odds with international legal norms on property restitution after displacement; and 3) to introduce a set of observations and questions on how conflict can change customary law. The article is based on fieldwork conducted in Uganda, Liberia and Timor-Leste, all countries with extended displacement where most of the rural land is held via customary claims. [ABSTRACT FROM AUTHOR]

Customary law is an alternative legal framework to statute or public law. In the past, the existence of customary law was viewed as problematic due to the uncertainty which accompanies legal pluralism. Increasingly, scholars are recognizing legal pluralism as simply a reality to be negotiated, rather than a problem. One frequently proposed solution to the difficulties posed by the existence of customary law is to write it down, or ascertain it, in order to provide for legal certainty. This article addresses this goal in three parts. The first part describes customary law and how it functions in its uncodified form in post-colonial settings, specifically in Sub-Saharan Africa and parts of Asia. While customary law thrived under colonization, it merely survived socialism where it was often explicitly undermined. The second part of the article details the reasons why scholars and public officials have often suggested writing customary law down as a solution, and situates these arguments within the contemporary debate on legal pluralism. In the third section, a specific case of written customary law, the Albanian Kanun of Lekë Dukagjini, is analyzed with a focus on its modem usage in a post-socialist context. The paper concludes noting that ascertainment does not bring legal certainty to customary law in the ways that are anticipated. Writing down an oral tradition or a practice may produce a document for reference, but this does not limit its use nor necessarily increases the predictability of its application. The article also emphasizes the role of customary law in defining group identity in post-socialist settings. [ABSTRACT FROM AUTHOR]

Many sub-Saharan African countries are embarking on major changes in their property fights law with the goal of achieving more vigorous economic growth and alleviating poverty. Uganda has been at the forefront of these changes with constitutional change and a new land law. The Ugandan land law encapsulates recent efforts to formalize existing informal property fights. Implementation and enforcement of the 1998 Land Act are examined through paired case studies. There have been three major impediments to implementation: lack of capacity, corruption, and customary law. While the new land law has been necessary to change property fights, it has faced obstacles in its implementation that undermine secure property fights to land. [ABSTRACT FROM AUTHOR]