Forced evictions

The present report is submitted in accordance with Commission resolution 2003/27.

In his last report to the Commission (E/CN.4/2003/5 and Add.1-3), the Special Rapporteur presented a comprehensive overview of his activities since his appointment in 2000 and highlighted trends, priority issues and challenges also reflected in his first (E/CN.4/2001/51) and second (E/CN.4/2002/59) reports.

In the present report the Special Rapporteur has chosen as his thematic focus one of the priority issues with respect to adequate housing as a component of the right to an adequate standard of living, i.e. forced evictions, which the Commission, in its resolution 1993/77, recognized as gross violations of human rights, especially the right to adequate housing.

In his past reports the Special Rapporteur has adopted the indivisibility approach to his mandate, exploring linkages with other related rights such as the rights to food, water, health, work, property, and security of person, security of the home and protection against inhuman and degrading treatment. The issue of forced evictions necessitates the examination of a range of issues related to adequate housing, including land, property, access to water and sanitation, health, poverty, gender, children, indigenous people, minorities and vulnerable groups, with security of tenure, security of the home and security of the person at the core.

During the period covered by this report the Special Rapporteur has undertaken three country missions, to Peru (March 2003), to Afghanistan (September 2003) and to Kenya (February 2004). Reports of the missions to Peru and Afghanistan are available as addenda to the present report (E/CN.4/2004/48/Add.1 and 2, respectively), whereas the Special Rapporteur will present his findings on Kenya to the Commission at its sixty-first session. During the missions to Peru, Afghanistan and Kenya, as well as during past country missions, the Special Rapporteur has noted with concern that forced evictions continue to occur. The Special Rapporteur has also continued to receive worldwide reports and testimonies of forced evictions and has, to a large extent, concentrated his communications and urgent actions on threatened or undertaken forced evictions, including cases of alleged excessive use of force, lack of consultation and prior notice or absence of compensation or alternative housing arrangements. Where appropriate, the Special Rapporteur has joined in urgent actions on forced evictions with other special procedures, i.e. the Special Rapporteur on the question of torture, the Special Rapporteur on migrants, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, the Special Rapporteur on the right to health and the Working Group on Arbitrary Detention.

The Special Rapporteur has continued his collaboration with treaty bodies, particularly the Committee on Economic, Social and Cultural Rights, including through his meeting with the Committee in May 2003 during its thirtieth session and continued dialogue with the Committee on the Rights of the Child in June 2003 during its thirty-third session. On 24 February 2004 the Special Rapporteur participated in the meeting of the open-ended working group to examine the question of a draft optional protocol to the International Covenant on Economic, Social and Cultural Rights, where he also highlighted the relevance of such a complaints procedure for groups threatened or affected by forced evictions.

The Special Rapporteur has also participated in several meetings and events initiated by UN-Habitat and other United Nations bodies, including the meeting of the UN-Habitat Governing Council, the UN-Habitat expert group meeting on gender and women’s issues in human settlements, and the expert group meeting on the monitoring of housing rights organized under the joint UN-Habitat/OHCHR United Nations Housing Rights Programme. The Special Rapporteur is also particularly pleased about the assistance extended to him during country missions, including by the United Nations Development Programme (UNDP), UN-Habitat and the Office of the United Nations High Commissioner for Refugees (UNHCR).

The Special Rapporteur has continued to contribute to, and cooperate actively with, civil society initiatives, including through his participation in the Asian Social Forum and the World Social Forum and continued joint work on developing indicators, including on assessing the impact of forced evictions.

The Commission has also entrusted the Special Rapporteur with the additional task of reporting separately under the Commission resolution on women’s equal ownership of, access to and control over land and equal rights to own property and to adequate housing. In its resolution 2003/22, the Commission requested the Special Rapporteur to submit a study on women and adequate housing to its sixty-first session.

In order to get an overview of the legal status of women in terms of housing, land and property, identify the major gaps and measures to address them, and gather case studies and testimonies from women on the ground, the Special Rapporteur undertook during 2003 two regional consultations, in New Delhi and Mexico City, in October and December 2003 respectively. They follow on a regional consultation held in Nairobi in 2002. The Special Rapporteur wishes to thank the Governments of Mexico and Germany for logistical and financial support without which the consultations would not have been possible. The outcome of the consultations will be reflected in the Special Rapporteur’s report to the sixty-first session of the Commission. However, the Special Rapporteur would like to underline that both the threat and the occurrence of forced evictions emerged in both consultations as one of the main obstacles to the right of adequate housing for women.

Commission resolution 1993/77 on forced evictions affirmed that this practice constitutes a gross violation of human rights, in particular of the right to adequate housing. Given the widespread practice of forced evictions worldwide, the Special Rapporteur encourages the Commission to continue addressing these violations with renewed commitment.

Over the years, the Sub-Commission on the Promotion and Protection of Human Rights has continuously addressed the issue of forced evictions. Sub-Commission resolution 1991/12 provides guidance in determining the legal responsibilities of those who evict. It stated that forced eviction can be carried out, sanctioned, demanded, proposed, initiated or tolerated by a number of actors, including, but not limited to, occupation authorities, national governments, local governments, developers, planners, landlords, property speculators and bilateral and

international financial institutions and aid agencies. In 2003, the Sub-Commission adopted a draft resolution on the prohibition of forced evictions¹ for action by the Commission at its sixtieth session.

1. See E/CN.4/Sub.2/2003/43. ↩

The obligation of States to refrain from forced evictions from houses and land can also be directly or indirectly read into a number of international legal instruments that protect the right to housing. These instruments also form the basis of the mandate of the Special Rapporteur, i.e. the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights (art. 11, para. 1), of the Convention on the Rights of the Child (art. 27, para. 3), the non-discrimination provisions found in article 14, paragraph 2 (h), of the Convention on the Elimination of All Forms of Discrimination against Women, and article 5 (e) of the International Convention on the Elimination of All Forms of Racial Discrimination.²

2. See also the initial report of the Special Rapporteur, E/CN.4/2001/51, paras. 13-17. ↩

In addition, and consistent with the indivisibility of rights approach adopted by the Special Rapporteur article 17 of the International Covenant on Civil and Political Rights states that “(n)o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence”, and further that “(e)veryone has the right to the protection of the law against such interference or attacks”. Article 16.1 of the Convention on the Rights of the Child contains a similar provision. Other references in international law include article 21 of the 1951 International Convention regarding the Status of Refugees; article 16 of the International Labour Organization (ILO) Convention No. 169 concerning indigenous and tribal peoples in independent countries (1989); and article 49 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949).

The most comprehensive interpretation of the scope of protection against forced eviction has been made by the Committee on Economic, Social and Cultural Rights in its general comment No. 7, adopted in 1997. Already in its general comment No. 4 on the right to adequate housing, adopted in 1991, the Committee identified legal security of tenure including legal protection against forced evictions as one essential element to ensure “adequacy” of housing, together with availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility for disadvantaged groups; location, and cultural adequacy. According to the Committee “(n)otwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats”, including persons living in emergency housing or informal settlements. It is further stated that “States parties should consequently take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups”.

Paragraph 9 of general comment No. 7 underlines that State parties are obliged to use all appropriate means to protect the rights recognized in the Covenant and that “legislation against forced evictions is an essential basis upon which to build a system of effective protection”. The Committee defines the term “forced eviction” and reaffirms that forced evictions are prima facie violations of the right to adequate housing. It acknowledges that women, children, youth, older persons, indigenous people, ethnic and other minorities, and other vulnerable individuals and groups all suffer disproportionately from the practice of forced eviction. According to the Committee, States should be strictly prohibited, in all cases, from intentionally making a person,

family or community homeless following an eviction, whether forced or lawful. The non-discrimination provisions of the Covenant impose an additional obligation upon Governments to ensure that no forms of discrimination are involved.

Paragraph 15 of general comment No. 7 also elaborates on the appropriate procedural protection and due process to be put in place to ensure that human rights are not violated in connection with forced evictions, including:
“(a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; (c) information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; (d) especially where groups of people are involved, government officials or their representatives to be present during an eviction; (e) all persons carrying out the eviction to be properly identified; (f) evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise; (g) provision of legal remedies; and (h) provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.”

In 1997, the Comprehensive Human Rights Guidelines on Development-based Displacement were developed and adopted by the expert seminar on forced evictions.³ They state, inter alia, that States should: (a) secure by all appropriate means, including the provision of the security of tenure, the maximum degree of protection against forced evictions; (b) ensure that adequate and effective legal or other appropriate remedies are available to any persons claiming that his/her right of protection against forced evictions has been violated; (c) ensure that no persons, groups, or communities are rendered homeless or are exposed to the violation of any other human right as a consequence to that; (d) adopt appropriate legislation and policies to ensure the protection of individuals, groups and communities from forced eviction, having due regard to their best interest; (e) refrain, to the maximum possible extent from compulsorily acquiring housing or land, unless such acts are legitimate and necessary and are designed to facilitate the enjoyment of human rights through, for instance, measures of land reform or redistribution; (f) adopt legislative measures prohibiting any forced evictions without a court order. The Special Rapporteur also notes the importance of some of the provisions of the guiding principles of internal displacement (especially principles 6, 7.3, 9 and 18) and existing basic principles and guidelines on the right to reparation for victims of violations of international human rights and humanitarian law.

3. E/CN.4/Sub.2/1997/7. ↩

Protection against forced eviction at the regional level is not as explicit as that flowing from obligations under international instruments, but nevertheless provides a framework of protection. The prohibition against forced evictions has also been affirmed in jurisprudence, through dispute-resolution mechanisms and other standard-setting at the regional level.

Article 31 of the European Social Charter (1961) obliges State parties to undertake a number of measures to ensure the effective exercise of the right to housing, including to promote access to housing of an adequate standard and to prevent and reduce homelessness with a view to its gradual elimination. Article 8 (1) of the European Convention on Human Rights and Fundamental Freedoms (1950) provides that “(e)veryone has the right to respect for his private and family life, his home and correspondence”. In addition, the article 1 of Protocol No. 1 of the European Convention states that “every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”.

Under article IX of the American Declaration of the Rights and Duties of Man (1948), every person has the right to the inviolability of his home. Further, according to article XXIII of the Declaration “(e)very person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home”.

Whereas the African Charter on Human and Peoples’ Rights does not contain an explicit recognition of the right to housing, nor does it address forced evictions, the jurisprudence of the African Commission on Human and Peoples’ Rights indicates that housing related rights are covered under the Charter. In a case brought before it against Nigeria in October 2001, concerning violence against and executions of Ogoni leaders who protested against the operations of the State oil company that have caused environmental degradation and health problems among the Ogoni people, the Commission concluded that the combined effect of articles 14, 16 and 18 (1) of the Charter implies a right to shelter or housing which the Government of Nigeria had accordingly violated. In its decision the Commission explicitly referred to Committee on Economic, Social and Cultural Rights general comments Nos. 4 and 7, stating that “all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats”, concluding that the Ogoni’s collective right in this respect had been violated.⁴

4. See the Social and Economic Rights Action Center and Economic and Social Rights v. Nigeria, Communication 155/96, 30th session of the African Commission on Human and Peoples’ Rights (13-27 October 2001). ↩

There is a growing body of national jurisprudence that upholds the right to adequate housing, either by relying on domestic or international legal instruments. Countries that, to differing extents, have enshrined the right to adequate housing in their national constitutions include Belgium, France, the Islamic Republic of Iran, Mexico, Russian Federation, South Africa, Spain, and the United Kingdom of Great Britain and Northern Ireland. While it is more frequent for adequate housing and living conditions to be protected through national legislation. Although it is difficult to offer cross-jurisdictional generalizations regarding court cases involving evictions, a basic overview of readily available legal material does show that in some cases domestic courts have also failed to protect the right to adequate housing as a component of an adequate standard of living, and more specifically against forced evictions.⁵

5. See UN-Habitat and OHCHR United Nations Housing Rights Programme, Housing rights legislation: review of international and national legal instruments, Nairobi 2002. ↩

Since the establishment of his mandate, the Special Rapporteur has collected extensive information on national legislation and jurisprudence pertaining to the right to adequate housing, the bulk of which relates directly to forced evictions. During his country missions, forced eviction has been an issue of major concern and the Special Rapporteur has attempted to contribute to steps being taken to adopt legislation on forced evictions at the national level following his missions to Peru, Afghanistan and Kenya.

The intention of the Special Rapporteur is to include collected cases in an addendum to his final annual report to the Commission in 2006 that would also provide an overview of good practices.

Causes of forced evictions are diverse and multifaceted. In this section, for the sake of illustration, the Special Rapporteur will be using examples from his country missions and other cases brought to his attention.

The frequent development-induced displacements can be defined as the removal - for the purposes of modernization and industrialization - of particular groups of people, often indigenous and marginalized peoples, from geographic regions to which they have cultural and historical ties. At the core of development-induced displacement is the loss of land and home. Displaced communities are forced to move out when their homestead is acquired by the project. The project-affected persons are deprived of their livelihood fully or sometimes partially without being physically displaced. Loss of land and home leads to insecurity and instability, to a denial of education, a sense of uprootment and eventually migration to cities.

Cases brought to the Special Rapporteur’s attention include threatened displacement due to decisions by authorities to raise the level of dams, resulting in flooding and communities becoming at risk of having their homes submerged. Another typical case is that of evictions and house demolitions in order to implement drainage and sanitation projects without the necessary provision of alternative settlement, thus resulting in homelessness.

During his recent mission to Kenya, from 9 to 22 February 2004, the Special Rapporteur expressed concern about the demolition of and eviction from houses and structures illegally constructed on road reserves and other public space during the former regime. The Special Rapporteur expressed particular concern that the authorities did not follow an adequate procedure in compliance with its human rights obligations, nor did it take steps to identify, protect or provide redress for the innocent caught in the demolition of houses, which also include people from the poorest segments of society.

Development-induced displacement has seen an even greater intensification in recent years as a result of processes of economic globalization. In effect, economic liberalization policies and structural adjustment programmes have made the dilemma of development-induced displacement all the more urgent. Several international financial and developmental institutions have developed guidelines for addressing the challenges presented by development-induced displacement.⁶ According to a recent report by the Brookings Institution-SAIS Project on Internal Displacement,⁷ about 300 development projects supported by the World Bank involved involuntary resettlement as of 2000. These projects constituted 20 per cent of the World Bank’s portfolio, affecting 2.6 million people through physical or economic displacement.⁸ In December 2001 the World Bank published a revised operational policy on involuntary resettlement.

6. See W. Courtland Robinson, Risks and Rights: The Causes, Consequences, and Challenges of Development-Induced Displacement (The Brookings Institution - SAIS Project on Internal Displacement 2003). ↩
7. See Robinson, p. 28. ↩
8. Ibid. ↩

The Asian Development Bank adopted an involuntary resettlement policy in 1995, modelled after that of the World Bank. The ADB has financed 80 projects involving resettlement since 1994, which affected an average of 120,000 people per year between 1994 and 1999.⁹ Like the World Bank, the ADB policy seeks primarily to avoid involuntary displacement, or to minimize its effects by ensuring that affected people receive assistance in restoring their living conditions to the same levels they were at before the project started.¹⁰

9. Ibid., p. 33. ↩
10. Ibid. ↩

The Inter-American Development Bank first instituted operational guidelines for involuntary resettlement in 1991. The most recent operational policy is “OP-710 on Involuntary Displacement” (1998), similar to those of the World Bank and the ADB. The African Development Bank developed operational guidelines for involuntary resettlement, also similar to the World Bank guidelines, in 1995.

The Special Rapporteur welcomes awareness of the problem of evictions and resulting displacement among the international financial institutions. However, documentation by civil society organizations, and communications from special procedures, indicate a poor record of implementation of these policies. The Special Rapporteur recommends an in-depth assessment of the implementation of such operational policies and guidelines should be conducted, including on their compatibility with human rights obligations.

As pointed out by the Special Rapporteur in his annual and country reports, the worldwide process of liberalization and globalization, including trade, investment, finance and debt and privatization policies, has contributed to growing land speculation. Privatization of housing and civic services thus places these human rights out of the reach of the poor. One result of this phenomenon is displacement of the poor and marginalized.

The report of the Special Rapporteur on his mission to Afghanistan (E/CN.4/2004/48/Add.2) highlighted a number of common causes of forced eviction in conflict and post-conflict situations, such as land and house occupation for the purpose of gaining political influence, and the abuse of a situation of insecurity, including the absence of a functioning rule of law, for personal gains.

Conflict-situations have also frequently resulted in population transfers and demolition of homes to strengthen political power, consolidate occupation or for security reasons. Cases reported to the Special Rapporteur include the systematic demolition of homes and commercial buildings of “undesirable” inhabitants, “unrecognized villages”, political opponents, etc.

Cases brought to the attention of the Special Rapporteur include evictions and demolishment as a form of punishment for the residents’ alleged support for terrorist groups, the use of heavily armed police forces for eviction purposes and unwarranted destruction of belongings during evictions. A pattern emerges from these recent and ongoing examples. Arbitrary and excessive use of force is common, without regard to the range of rights thus being violated, including the right to adequate housing. It also deepens poverty and institutionalizes impunity for those responsible for such human rights violations. Consequently, these practices erode the domestic and external legitimacy of the responsible authorities both in the short- and long-term.

In its resolutions 2001/28, 2002/21 and 2003/27, the Commission called upon all States, without distinction of any kind, to counter social exclusion and marginalization of people who suffer from multiple discrimination, in particular by ensuring non-discriminatory access to adequate housing for indigenous people and persons belonging to minorities.

The Special Rapporteur has continuously brought attention to various forms of discrimination and segregation in housing and access to essential services, not only on the grounds of race, class or gender, but also because of economic status, as illustrated in the Special Rapporteur’s previous report (E/CN.4/2002/59, paras. 37-48). Discrimination also plays a critical role in cases of forced eviction. Women, ethnic, religious, racial and other minorities as well as indigenous people are far more likely than others to be evicted. The impact of forced eviction on such groups is manifested before, during and after the event, as the practical and psychological impact of such actions may be of particular importance for certain groups, such as children, women and indigenous peoples. Discrimination common in times of stability can escalate into violation of the most fundamental of human rights during times of forced evictions, and subsequent flight and displacement, despite States’ commitments and legal obligations to the contrary.

This creates a cycle whereby people subjected to forced evictions for reasons of their precarious economic status and living conditions, e.g., living in slums, impoverishes them further. The practice of forced eviction epitomizes polarization between rich and poor.

In addition to facing eviction in situations such as urban slum clearances, armed conflict and large-scale development projects, women are also vulnerable to forced evictions specifically because of the gender discrimination they face as women. Domestic women workers, prostitutes and women migrant workers are vulnerable to being evicted from accommodation provided with their work; women who are married are vulnerable to eviction due to dowry-related issues; women who are living with HIV/AIDS are vulnerable to eviction; women living with their husband’s family are vulnerable to being evicted as widows or due to domestic violence or divorce.

The effects of forced eviction on women go far beyond mere inequity. The Special Rapporteur on violence against women, in her 2000 report to the Commission on Human Rights on economic and social policy and its impact on violence against women (E/CN.4/2000/68/Add.5, para. 55), points out, “(w)hile the entire family is affected by forced eviction, again it is the women who suffer most. Women will have to cope with the new circumstances, will have to fulfil their responsibilities as before, but with more limited means, and will need to work harder to make ends meet”.

As a result of forced evictions, women can suffer not just from loss of home, but also livelihoods, relationships and support systems they were used to, breakdown of kinship ties, physical and psychological trauma and even increased morbidity and mortality. Critically, acts of forced eviction are often accompanied by violence targeting women who are being evicted.

The gender disparities that exist in society and the family tend to get aggravated in situations of forced eviction and involuntary displacement and the resultant social and economic distress. This may manifest itself in greater morbidity or violence or a fall in nutritional status. In a scenario in which the community suffers several deleterious consequences of enforced change, women’s position both outside the family and inside become even more precarious, including with respect to violence.

Recognizing the gender dimension in experiences of forced eviction the Committee on Economic, Social and Cultural Rights in its general comment No. 7 states that women are particularly vulnerable given the statutory and other forms of discrimination they experience in relation to property rights (including home ownership) or rights of access to property or accommodation, as well as women’s particular vulnerability to acts of violence and sexual abuse when they are rendered homeless. Further, violence against women, which often accompanies forced evictions, has been recognized by the Committee on the Elimination of Discrimination against Women to be a form of discrimination against women.

International institutions such as the World Bank and the Asian Development Bank, and some national Governments have developed guidelines for ensuring gender mainstreaming.¹¹ However, gender aspects - before, during and after evictions - often fail to be addressed, either by the planners, the evictors or those who work with the displaced, and sometimes even by the affected themselves.

11. Some examples include the Gender Checklists of the World Bank and the Asian Development Bank. ↩

If women are to exercise their rights, they must have full knowledge and information. This may necessitate not just representation of women in discussions and meetings but even separate meetings with women using female facilitators to solicit women’s views, especially around sensitive issues such as toilets, sanitation, water and the house plan, etc. Even if legal provisions to rights to property do not facilitate such decisions, rehabilitation plans can ensure that women have equal access to resettlement and rehabilitation.

Some aspects with regard to the impact on women of forced evictions are underlined in the following paragraphs.

Some women are more vulnerable: As with any situation of stress, in forced evictions, too, some groups who are already socio-economically vulnerable, become even more so. They include the very young; the aged and infirm; the disabled - physically and mentally; those belonging to minority groups, i.e. religious, ethnic, descent-based, sexual minorities, refugees; single women; women with terminal diseases, etc. The intersectional discrimination they face compounds their exclusion and inequity. These groups need special and focused attention.

Increases in morbidity: Studies across the world have shown increase in morbidity and even mortality rates due to involuntary dislocation. Age specific death rates show higher mortality and morbidity rates for female children and of women up to 35 years; the most-productive years. Given this, there is a likelihood that, if there is an increase in morbidity induced by displacement, the first to be hit will be the females. Similarly, the nutritional and health status of women is lower than men even under normal circumstances, so is likely to be even lower in situations of displacement.

Loss of livelihood and income: While rehabilitation packages can sometimes include opportunities for alternative occupations (e.g., offers of one job per family as compensation), due to gender bias within the family, women often cannot access these opportunities. Further, the choices for exploring alternative employment and livelihood options for women are limited because of their lower level of skill, education, exposure and mobility. As result it has been found that women are forced to leave home in search of employment in urban areas or overseas. Many women are forced to take jobs where they are exposed to hazardous and stressful working conditions, sexual harassment and an urban culture and lifestyle, which they find hard to cope with. Women’s economic activities are an important source of income for the households and therefore it is important to ensure that this in enumerated in planning and executing resettlement programmes.

Increased workload: In general, women are responsible for food, fuel and fodder in the family. With the monopolization of natural resources like forest, water and land by development projects, and often also as a result of the negative environmental consequences of these projects - fuel, fodder and water becomes scarce. This has a direct impact on the lives of the women affected, as they are the ones responsible for acquiring them for the family. Unless this is addressed in the resettlement planning and execution, some of the inevitable fallouts are that women will be left walking longer distances, and spending more time and money on accessing them.

Lack of compensation: Even when there is some move towards the fulfilment of requirements for resettlement and rehabilitation, women stand disadvantaged. This is because in most projects, compensation and resettlement and rehabilitation is based on legal ownership of land and property. Since in most societies women do not have legal rights to land and property even though they may have enjoyed usufructory rights or been dependent on it, they are not eligible for compensation and other benefits that may be available. Or women are excluded due to gender-biased definitions of families that assume males are heads of families and female members are dependants.

Lack of mobility and access to public domain: The involuntariness of the whole process, the unexpectedness, and most often the lack of preparation for such an eventuality make it hard for women to cope. Further, restricted mobility and lack of access to the pubic domain are some of the gender-specific factors resulting in a lack of women’s ability to adjust to new situations.

Breakdown of community: Breakdown of community and other social networks, which is often caused by the process of dislocation, affects women more because of their greater dependence on them. Social relationships and bonds play a significant role in women’s lives. They are dependent on community and other social networks for emotional as well as practical support such as taking care of children. In times of both celebration and distress, social networks are important. They provide women a sense of security. Dislocation can be traumatic if these relationships break down.

Violence against women and the right to housing: As revealed in the testimonies given by women at regional consultations, there is a high prevalence of violence occurring to women living in inadequate and insecure housing conditions. Eviction of women from their homes is one of the most common manifestations or forms of domestic violence and armed or communal conflict faced by women. Violence during conflict occurs during and after forced evictions resulting from acquisition of land and property. Women confront severe and targeted aggression in all aspects of a forced eviction, commonly suffering physical, sexual and psychological violence, added to further violence against their livelihood and well-being. For more details read the report of the regional consultation on “Interlinkages between Violence Against Women and Women’s Right to Adequate Housing”, held in Delhi, India, in October 2003 for the Special Rapporteur, at www.unhchr.ch/housing.

This cycle of violence continues after resettlement, especially when the rehabilitation has resulted in further marginalization. Loss of self-esteem among men, resulting from loss of land and livelihood, often manifests itself in violence against the women in their homes.

Housing and habitat play a vital role in the growth and development of children. Having a secure place to live is one of the fundamental elements for human dignity, physical and mental health and overall quality of life. To the child, a home represents security, a place where there is warmth and affection, a place to eat, laugh, play and cry: an environment that provides opportunities to grow and develop. It is within the home that the child discovers self and forms an identity. The home is a place where the child’s basic needs - physical, social, psychological, emotional and cultural - are fulfilled. It is here that the personality of the child is shaped, and where her/his aspirations are fulfilled.

Children’s housing rights are integral to the realization of other basic rights of survival, development, protection and participation. The right of the child to health, education, participation in society, physical and intellectual development, security and even their right to life are closely linked to the quality of housing and the environment in which they live. “Adequate” housing is of particular importance for children as this is closely linked to the environment in which they grow up and the living conditions they have to confront.

According to the UNDP Human Development Report 1997, 600 million people live in dwellings that threaten their lives and health, 100 million people live with no shelter at all and many more are forced to live in unstable and insecure conditions in the wake of forced evictions due to land acquisitions, wars and political conflicts. In all these situations children are the worst affected. An unknown number - but certainly tens of millions - of the world’s urban children and adults are homeless and sleep in public places such as pavements, stations, parks, graveyards, or construction sites and work places.¹²

12. See also Poverty and Exclusion among Urban Children, UNICEF Innocenti Research Centre (available at www.unicef.icdc.org/publications), and Homelessness in the United States and the Human Right to Housing: a report by the National Law Center on homelessness and poverty, Washington, January 2004. ↩

During forced evictions, possessions are destroyed, family stability jeopardized, livelihoods and schooling threatened. Testimonies from children that have been subjected to forced evictions describe the violence, panic and confusion of the evictions and the experience of sleeping and managing their lives out in the open.¹³ The act of demolition of homes in the presence of police and armed personnel using brutal force makes children feel that they and their families are illegal and second-class citizens, not entitled to the rights that “others” are. Consequently, they experience low self-esteem. In this context, the implementation of the Convention on the Rights of the Child, including the right to housing, the right to security of the person and home is vital.

13. For an analysis of the psychological impact of forced evictions on children, see submission by the Special Rapporteur to the Committee on the Rights of the Child at its thirty-first session, 16 September to 4 October 2002, Geneva, Destruction of housing in the Occupied Palestinian Territories: Impact on Children, (available at www.unhcr.ch/housing). ↩

Land traditionally occupied and used by indigenous populations has frequently been appropriated, including often through various forms of violence or discrimination, and that ways of guaranteeing effective protection for their rights of ownership and possession are fundamental.

In his 2003 report, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people (E/CN.4/2003/90), focused on the impact of development projects on indigenous peoples. In Chile, Colombia, Costa Rica, India and the Philippines, among other countries, the construction of large multi-purpose dams particularly affects areas with large indigenous populations. He also reported on the effects of other types of major development activities on the rights of indigenous peoples, such as the Puebla Panama Plan in Central America and Mexico. The principal human rights effects of these projects relate to the loss of traditional territories and land, eviction, migration and eventual resettlement, depletion of resources necessary for physical and cultural survival, destruction and pollution of the environment, social and community disorganization, long-term negative health and nutritional impact as well as, in some cases, harassment and violence.¹⁴

14. See also Dams and Development: A New Framework for Decision-Making, World Commission on Dams, 16 November 2000. ↩

Minority groups often face problems related to access to housing, land and property, and security of tenure. The Special Rapporteur has continued to receive allegations about, for example, forced evictions of members of the Roma community in both Latin America and Europe. In its general recommendation XXVII on discrimination against Roma, adopted in 2000, the Committee on the Elimination of Racial Discrimination recommended that States parties to the Convention adopt, for the benefit of members of the Roma communities and taking into account their specific situation, measures “(t)o act firmly against any discriminatory practices affecting Roma, mainly by local authorities and private owners, with regard to taking up residence and access to housing; to act firmly against local measures denying residence to and unlawful expulsion of Roma, and to refrain from placing Roma in camps outside populated areas that are isolated and without access to health care and other facilities”.

The Special Rapporteur has also received continuous reports about forced evictions faced by other vulnerable groups, such as refugees, migrants and national and ethnic minorities, living, sometimes for extensive periods of time, in abandoned military barracks, schools, churches and other private or public buildings not in use.

Through information received and during missions undertaken, the Special Rapporteur has observed that human rights defenders, claiming rights for those under threat to be forcibly evicted, are also at risk of having measures taken against them by the authorities. Recently,

during his mission to Afghanistan numerous reports were received according to which human rights defenders or other persons protesting against house demolitions and evictions have been threatened with imprisonment, torture and persecution.¹⁵

15. See also E/CN.4/2004/48/Add.2, para. 70. ↩

The Special Rapporteur has also received information according to which lawyers defending housing rights or involved in compensation cases regarding forced eviction cases have been indicted for “misconduct”, “abusing their legal responsibility” or similar charges.

The HIC-HLRN “Loss Matrix” serves as an assessment tool as to what is lost in the case of a housing rights violation. For the immediate victim of forced eviction and demolition, this would include: the house structure, plot, contents, infrastructure, mortgage or other debt penalties, interim housing, bureaucratic and legal fees, alternative housing, resettlement and transportation costs, especially in the case of location far from the source of livelihood. Where home is also a source of livelihood, the quantification “tool” would capture the value of business losses, equipment/inventory, prospective income, livestock, land, trees/crops, lost/decreased wages/income, and outlays for needed health care. The victims’ non-material effects nonetheless represents values lost such as health, living space, reconstruction-licensing red tape, psychological harm, family disintegration, distance/estrangement from community, inheritance, environment/ecology, social standing/seniority, political and social marginalization and further vulnerabilities to future violations. The typical eviction, confiscation or demolition victim is a low-income family already scrambling to make a living. Comparing the values lost in one day’s violation to the total annual income of the affected family can produce a staggering statistic, demonstrating to the most sceptical that housing is a human right whose violation invariably deepens poverty.

Taking forward the initiative on developing rights-sensitive indicators and monitoring tools outlined in his previous report (E/CN.4/2003/5), the Special Rapporteur actively participated in an Expert Group Meeting jointly organized by OHCHR and UN-Habitat under the United Nations Housing Rights Programme, in Geneva from 26 to 28 November 2003.¹⁶ In the meeting, three clusters of indicators namely, “indicators on housing adequacy”, “indicators on the denial and violation of housing rights” and “indicators on the process of fulfilment of the right to adequate housing” were discussed in detail. These clusters of indicators are broadly consistent with the preliminary framework on indicators presented in the Special Rapporteur’s earlier report. In each of these clusters, indicators were identified to capture the relevant aspects of housing adequacy.

16. For the Report of the Expert Group Meeting on Housing Rights Monitoring, organized jointly under the United Nations Housing Rights Programme by the United Nations Human Settlements Programme (UN-Habitat) and the Office of the High Commissioner for Human Rights (OHCHR) in Geneva on 26-28 November 2003 (available at www.unhabitat.org/programmes/housingrights/expert_group_meeting.asp), together with relevant background material. ↩

The indicators are also consistent with the relevant general comments in terms of terminology as well as substantive characteristics of the right that needs to be reflected in such an exercise. Thus, for instance, indicators on housing adequacy focused on the housing adequacy attributes of habitability - capturing the quality and crowding dimension of housing; accessibility to services, including the access to potable water and adequate sanitation; affordability of housing; and security of tenure reflected in terms of proportions of households with legally enforceable contractual, statutory and other protection. In all, six indicators were identified in this cluster of the indicators. Similarly, in the case of the cluster on denial and violation of housing rights, indicators were identified to capture the homeless population, the population residing in slums and persons subjected to forced eviction. Finally, in keeping with the need to emphasize identification of suitable process indicators, in order to reflect the principles of a human right approach to development when monitoring of right to adequate housing, the expert group identified two sets of indicators relating to the legal framework and the institutional policy framework for facilitating the realization of the right. By capturing the process of realization of the right, these indicators identify the concerned duty-holder (i.e. the State at various levels of government) and relevant instrument for promoting and protecting the right to adequate housing.

The suggested framework of indicators that emerged from this expert meeting makes an important contribution towards the objective of developing rights-sensitive indicators and monitoring tools. There are, however, issues on which considerable further work needs to be done in terms of disaggregation of data for the rural and urban areas, where appropriate for vulnerable groups, including people and communities threatened with or having faced forced evictions. There is also a need to devise suitable gender-sensitive indicators on many of the adequate housing attributes identified in the framework.

Quantitative indicators can at best reveal only a part of the information that can potentially help in monitoring the realization of the right to adequate housing or any other human right. Notwithstanding the attempt to disaggregate the data, indicators may not be able to reflect the fulfilment and the enjoyment of the right both quantitatively as well as qualitatively at, for instance, the community level or for vulnerable groups in a given context. The Special Rapporteur had drawn attention to the “Tool Kit” developed by the Habitat International Coalition Housing and Land Rights Network, whose methodology complements the role that indicators such as those discussed above could play in monitoring the promotion and protection of the right.

It is clear that the trend of forced evictions worldwide is a major concern for the United Nations system as well as for civil society organizations. Positive initiatives have been undertaken by a range of actors at different levels.

In their review of reports of States parties to the major human rights instruments, the treaty monitoring bodies have over the years examined housing, land and property rights issues, with the Committee on Economic, Social and Cultural Rights (CESCR) being the main body to put on record its views, concerns and recommendations concerning adequate housing and forced eviction.

CESCR has expressed concern that forced evictions are carried out without provision for alternative lodging or adequate compensation, without right of appeal; that certain groups are more likely to be evicted, such as Roma in many countries or traveller communities in Ireland, ethnic minorities, urban squatter communities, indigenous people and populations displaced by development projects, without having received appropriate relocation measures or adequate compensation.

The most comprehensive concluding observations relating to forced evictions by the Committee relate to the Dominican Republic.¹⁷ In response to alleged instances of large-scale forced evictions, the Committee reaffirmed its long-standing view that forced evictions are prima facie incompatible with the requirements of the Covenant and can only be justified in truly exceptional circumstances. In its concluding observations, the Committee “expresses its serious concern at the nature and magnitude of the problems relating to forced evictions and calls upon the Government of the Dominican Republic to take urgent measures to promote full respect for the right to adequate housing. In this regard, the Committee notes that whenever an inhabited dwelling is either demolished or its inhabitants evicted, the Government is under an obligation to ensure that adequate alternative housing is provided. In this context “adequacy” requires relocation within a reasonable distance from the original site, and in a setting which has access to essential services such as water, electricity, drainage and garbage removal.” Other concerns of the Committee included the percentage of Government-built housing that are provided to the poorest sectors of society and situations in which evicted persons are relocated to areas which are heavily polluted with no civic services.

17. Concluding observations of the Committee on Economic, Social and Cultural Rights: Dominican Republic, E/C.12/1994/15, 19 December 1994, para. 11. ↩

In other concluding observations, the Committee has expressed concern about forced evictions without alternative housing or compensation provided occurring in poor communities,¹⁸ the inadequate level of protection given to for example travellers and ethnic minorities,¹⁹ harassment or illegal eviction experienced by single parents and people with low income, forced evictions as a result of private construction projects and the issue of mass evictions in connection with the organization of major events.²⁰

18. Concluding observations of the Committee on Economic, Social and Cultural Rights: Egypt, E/C.12/1/Add.44, 23 May 2000, para. 22. ↩
19. Concluding observations of the Committee on Economic, Social and Cultural Rights: United Kingdom of Great Britain and Northern Ireland, E/C.12/1/Add.19, para. 17. ↩
20. Concluding observations of the Committee on Economic, Social and Cultural Rights: Republic of Korea, E/C.12/1/Add.59, para. 25 and E/C.12/1995/3, para. 14. ↩

Under the Convention on the Elimination of All Forms of Discrimination against Women, the rights of women to land and property are protected, including a prohibition of discrimination against women in rural areas. Women are also to receive equal treatment in land and agrarian reform and have equal rights in terms of the ownership of property. The Committee has addressed adequate housing for women in general, and women’s equal right to own and inherit land and the situation of rural women in this respect. The lack of the equal right to ownership of land is one of the reasons why women, and particularly female-headed households, are at particular risk of being forcibly evicted.

The Committee on the Elimination of Racial Discrimination has often highlighted the issue of adequate housing as being an area in which discrimination occurs. In Latin America, Australia and New Zealand, the issue of land rights for indigenous people has been repeatedly examined over the years including the problem of use of violence in some land disputes and threats from large landowners even when land is legally occupied by indigenous communities. The Committee has also expressed its concern over discrimination against specific ethnic or racial groups and minorities and explicitly its concern with cases of forced removal or evictions of groups such as in the Sudan and the Philippines, especially with respect of indigenous people in development zones.

An individual case recently dealt with by the Committee against Torture (CAT) concerns the expulsion and destruction of houses of a Roma settlement in Montenegro (Hajrizi Dzemajl et al. v. Serbia and Montenegro).²¹ The complainants were 65 persons, all of Romani origin and then nationals of the Federal Republic of Yugoslavia, claiming that articles 1, paragraph 1 and 2, and paragraphs 1, 12, 13, 14 and 16, paragraph 1, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment had been violated. The destruction of the Roma settlement was a result of the acts of a large mob of several hundred non-Roma, who “with stones and other objects, first broke windows of cars and houses belonging to Roma and then set them on fire. The crowd also destroyed and set fire to the haystacks, farming and other machines, animal feed sheds, stables, as well as other objects belonging to the Roma”, including with explosive devices. Allegedly, police officers were present at the scene, but did not intervene and failed to act in accordance with legal obligations. The Committee concluded that the incident constituted a breach by the State of article 16 of the Convention, i.e. the incidents were labelled as cruel, inhuman or degrading treatment.

21. Communication No. 161/2000: Yugoslavia, CAT/C/29/D/161/2000, 2 December 2002. ↩

It should be noted that an individual opinion was issued by two of the members of the Committee, stating that “the illegal incidents for which the Yugoslav State is responsible constitute ‘torture’ within the meaning of article 1, paragraph 1, of the Convention, not merely ‘cruel, inhuman or degrading treatment’ as covered by article 16. The failure of the State authorities to react to violent evictions, forced displacement and the destruction of homes and property by individuals amounts to unlawful acquiescence which, in our judgement violates article 1, paragraph 1, particularly when read in conjunction with article 2, paragraph 1, of the Convention”. When arguing this point, the two members underline that the suffering inflicted on the victims was “severe enough to qualify as ‘torture’”, including since the inhabitants “were forced to abandon their homes in haste given the risk of severe personal and material harm”, and since no compensation had been given to the victims. The two reserving members conclude that “the above amounts to a presumption of ‘severe suffering’, certainly ‘mental’ but also inescapably ‘physical’ in nature even if the victims were not subjected to direct physical aggression” and should therefore have been defined as torture.

The Special Rapporteur welcomes the link continuously being made by CAT between forced evictions and breaches of the Convention, including, for example, in the Committee’s concluding observations on Israel where it states that “policies on house demolitions […] may, in certain instances, amount to cruel, inhuman or degrading treatment or punishment”.²²

22. Conclusions and recommendations of the Committee against Torture: Israel, CAT/C/XXVII/Concl.5, 23 November 2001. ↩

In 1993, the Commission on Human Settlements urged States to establish appropriate monitoring mechanisms to provide indicators on the extent of homelessness, inadequate housing conditions, persons without security of tenure and other issues arising from the right to adequate housing. The Commission also urged the States to cease practices, which resulted or could result in infringements of the human rights to adequate housing. This referred in particular to the practice of forced mass evictions and any form of racial or other discrimination in the housing sphere. In 1996, the second United Nations Conference on Human Settlements, Habitat II, was convened in Istanbul, resulting in the Istanbul Declaration and the Habitat Agenda. The Habitat Agenda provides a strong statement of global support for the implementation of housing rights by Governments, including protection against forced evictions.

At its eighteenth session, the Commission on Human Settlements (changed to the Governing Council of UN-Habitat by General Assembly resolution 56/206) recognized security of tenure and urban governance as primary issues in assuring the fulfilment of the human right to adequate housing for all. In addition, the UN-Habitat Global Campaign for Secure Tenure aims at fulfilling the goal of providing adequate shelter for all, one of the two main themes of the Habitat Agenda. The opposition to forced eviction is an important element of this campaign.

In 1998 UNIFEM, UNDP, UNHCR and UN-Habitat held an interregional consultation in Kigali, Rwanda, on women’s land and property rights in situations of conflict and reconstruction. This had been preceded by several other consultations that were held in Zimbabwe, Côte d’Ivoire, Brazil, Costa Rica, Sweden, India, Turkey and Kenya. The Kigali Consultation acknowledged, among other things, that forced eviction and displacement disproportionally affects women and children. It also stressed the importance of developing domestic legal mechanisms that address women’s land and property rights from a gendered perspective.²³

23. UN-Habitat, Women’s Rights to Land, Housing and Property in Post-Conflict Situation and During Reconstruction: A Global Overview, Nairobi, 1999. ↩

The Special Rapporteur is encouraged by positive inter-agency initiatives at the field level. As an example he would like to mention the setting up and the work of the Housing Rights Task Force in Cambodia, coordinated by the field office of the Office of High Commissioner on Human Rights, and with the participation of relevant United Nations agencies and programmes, Phnom Penh municipality, the Ministry of Land, representatives from civil society, including non-governmental organizations and the urban poor. The Task Force was specifically set up in order to prevent forced evictions and address related emergency situations. Following the Special Rapporteur’s mission to Afghanistan, he has been made aware that similar positive initiatives are also being undertaken there.

Civil society organizations (CSOs) have relied on several strategies to raise awareness about and oppose forced evictions. These strategies reflect the fact that forced evictions are the short-term manifestation of what are usually long-standing obstacles to the realization of economic, social and cultural rights. Thus, on the one hand CSOs engage in capacity and awareness-building activities aimed at the prevention of future evictions, and on the other hand they have adopted strategies to respond quickly to the urgency of human rights violations presented by forced evictions.

In terms of preventing evictions through creating and sustaining adequate housing, CSOs at the national and international level have been involved in a range of activities that include, but are not limited to: urging Governments to develop alternatives to forced eviction; participating in institutional and governmental standard-setting; preparing national and global housing surveys; and providing human rights education and training. Organizations representing vulnerable communities such as urban slum-dwellers and indigenous and tribal peoples have, in many cases, benefited from building alliances in the form of broad-based coalitions and networks.

Many CSOs, such as the Centre for Housing Rights and Evictions (COHRE), Amnesty International and Habitat International Coalition - Housing and Land Rights Network (HIC-HLRN) have relied on the following strategies for an analysis of and an immediate response to forced evictions: preparing and disseminating urgent actions;²⁴ conducting fact-finding missions; case documentation and surveys,²⁵ mobilizing individuals and groups at the local level; appealing to available international human rights bodies; and litigating at the local, national and regional level. Alternative reports to United Nations treaty-monitoring bodies have been another useful tool for creating international awareness about recurring forced evictions.

24. Urgent Action! HLRN Guide to Practical Solidarity for Defending the Human Right to Adequate Housing, Housing and Land Rights Network - Habitat International Coalition, 2003. ↩
25. COHRE, Global Survey No. 7. ↩

In turn, campaigns undertaken by CSOs have often been a collaborative effort between local and international non-governmental organizations. For example, the urgent-action methodology is a highly visible means by which organizations share knowledge to create a tool that can be used at both the national and international level. Thus urgent actions at the international level have been initiated by both local and international organizations, depending on the specific details of the eviction and on the nature of existing partnerships between national and international organizations. International NGOs such as HIC-HLRN, the World Organization Against Torture (OMCT) and Amnesty International have begun to apply the urgent action methodology with increasing frequency to situations of forced eviction. These urgent actions also add to the increasing body of documents that show that forced evictions are a violation of fundamental human rights.

The Special Rapporteur welcomes recent initiatives by Amnesty International and others to link forced evictions with calls for housing policies to be based on the right to adequate housing as defined in international human rights instruments.²⁶

26. See, for example, Mass forced evictions in Luanda - a call for a human rights-based housing policy, Amnesty International (AI Index AFR 12/007/2003), 12 November 2003. - - - - - ↩

Flowing from the above information and analysis, the Special Rapporteur would submit the following suggestions to and seek further guidance from the Commission:
(a) Given the scale and the growth of the phenomenon of forced evictions, the Special Rapporteur recommends that an expert seminar be called for by the Commission to develop clear guidelines (or guiding principles) for States on forced evictions. These guidelines could be based on general comment No. 7 of the Committee on Economic, Social and Cultural Rights; the United Nations Comprehensive Human Rights Guidelines on Development-based Displacement; the guiding principles on internal displacement, the draft guidelines on housing and discrimination (E/CN.4/2002/59) and the basic principles and guidelines on the right to reparation for victims of violations of international human rights and humanitarian law. While the above-mentioned instruments offer useful guidance for States and the international community, it is the view of the Special Rapporteur that new standards, in the form of guidelines or guiding principles are necessary to capture, in a comprehensive manner, preventive and compensatory measures that need to be taken to tackle forced evictions;
(b) Given the inextricable link between the right to adequate housing and forced evictions, the Special Rapporteur would urge the Commission to more explicitly include the issue of forced evictions as a part of his mandate, including by explicitly encouraging the Special Rapporteur to respond effectively, such as through urgent appeals, to credible and reliable information that comes before him, and to continue to seek the views and comments of all concerned, in particular Governments;
(c) Given the need to more effectively assess and monitor the impacts of forced evictions, including measuring the impact on women and developing a framework for assessing compensation, the Commission can request OHCHR to develop indicators on forced evictions using as a basis the existing indicators from the UNHRP and the HIC-HLRN “Loss Matrix”;
(d) The Commission should urge treaty-monitoring bodies to place more focus on questioning States about policies that lead to forced evictions. The relevant treaty bodies can also consider incorporating dimensions of forced evictions that make clear the process to be followed and conditions under which forced evictions can take place, including through general comments and general recommendations;
(e) Urge relevant United Nations agencies and programmes and bilateral and multilateral initiatives to integrate work on forced evictions into their mandates;
(f) Urge States to adopt policies and legislations on forced evictions based on provisions in international human rights instruments.

Given the importance of protecting women, the Special Rapporteur presents the following recommendations with the aim to move towards a more comprehensive and integrated treatment of women’s right to adequate housing, including protection from forced evictions:
(a) Laws and policies need to be reformed to ensure that women are effectively protected from forced eviction. Given the clear link between violence against women and the right to adequate housing for example, States are urged to include anti-violence provisions in housing legislation and policies and to include provisions that protect women’s right to housing in laws and policies related to, for example, discrimination and domestic violence;
(b) States are urged to ensure gender equality measures are included in resettlement and rehabilitation programmes so that women are not denied benefits. This is critical at every stage - data collection, planning and implementation. Unless women's participation is ensured, male biases in administration and legal systems might both undermine women’s rights in customary institutions as well as disadvantage vulnerable women. Divorced women and women-headed households may particularly suffer as a result of this bias.

The Commission may wish to express its support of the continuing work under the joint UN-Habitat/OHCHR housing rights programme, including developing a programme on forced evictions, and give further encouragement to its implementation, including by inviting States which are in a position to do so to provide financial support.