Property Restitution and Rule of Law in Peacebuilding: Examining Applicability of the Bosnian Model

Mari Katayanagi, Ph.D.

Former Senior Research Fellow

JICA Research Institute

Displacement during the armed conflict By Philippe Rekacewicz, UNEP/GRID-Arendal 2

Asymmetric Political Structure ofpost-Dayton Bosnia and Herzegovina (BiH)

BiH

Republika Srpska (RS)

municipalities

Federation of Bosnia and

Herzegovina (FBiH)

10 Cantons

municipalities

Brcko District

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History

• Property was an important target in the history of BiH at the time of armed conflicts.• Property allocation was carried out with

humanitarian justification.Socialist Federal Republic of Yugoslavia

(SFRY) - Occupancy rights: rights to live in a socially-owned property

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General Framework Agreement for Peace (Dayton Peace Agreement)

• ‘All refugees and displaced persons have the right freely to return to their homes of origin.’

(Art. II(5) of Annex 4 and Art. I(1) of Annex 7)

• `Right to have restored to them property of which they were deprived in the course of hostilities since 1991’

• ‘The early return of refugees and displaced persons is an important objective of the settlement of the conflict in Bosnia and Herzegovina.’ 6

Post-war mono-ethnic population structure

• 1.2 million refugees, 1.0 million IDPs (ethnic cleansing)

• De facto partition of the country into three areas controlled by each ethnic group, respectively

Policies of nationalist political leaders

Block return

Encourage IDPs to stay

Allocate public land to IDPs

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Restitution process8

Housing-related laws and regulations

Abolished laws on abandoned propertiesApril 1999 - Introduced a unified rule: primacy of rights

of pre-war owners or occupancy right holders Oct. 1999 – Harmonized administrative procedures for

property repossessionDec. 2001 – Detailed procedure including the principle of

chronological processing of claims

Bonn Powers of the High Representative

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Dispute Resolution Mechanism

• Commission for Real Property Claims of Refugees and Displaced Persons (CRPC)

Receive property claimsVerify ownership Issue certificate of ownership

1996-2003: Processed 310,000 claims

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Members3 international

4 from the Federation2 from the RS

Property Law Implementation Plan

By Office of the High Representative, UNHCR, OSCE, UN International Police Task Force and CRPC

Well-organized field monitoring structureMonthly PLIP statisticsEviction monitoring by International Police Task Force

(IPTF), UNMIBH

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Information campaign

• “Respect” campaign

Respect for the right to property and respect for right to return – respect for human rights and rule of law are fundamental principles in any democracy

• “It’s enough” campaign

Highlighting frustration of claimants, occupants, and all those involved in the repossession process

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Removal of obstructive officials

• Nov. 1999 – 22 officials (mainly politicians)• Sep. 2000 – 15 officials (mostly housing officials)

Bonn powers → 　 showing determination of the international community

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JICA-RI’s original survey in Sarajevo Canton

Land use

• 63.8%: public property

• 34.7%: private property

• 0.1%: religious community’s property

• 1.4%: no ownership data

Plot size

60.731.1

5.12.5 0.4

<0.1ha

0.1-0.5ha

0.5-1.0ha

1.0-5.0ha

5.0ha<

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Rights-based approach & rule of law

Rule of law requirements• Supremacy of law• Equality before the law• Accountability to the law• Fairness in the application of the law• Separation of powers• Participation in decision-making• Legal certainty• Avoidance of arbitrariness• Procedural and legal transparency (UN Doc. S/2004/616)

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Applicability of Bosnian Model

• Peculiar conditions of BiHRelatively clearly determined property rightsLimited period of displacementA strong presence of international community

Yet there are lessons to be learnt …

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Conclusion

Importance of recognizing the original property rights equally

Effectiveness of rule of law approach

Rule of law is complex – how can we build it without enforcement powers?

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Thank you foryour attention. 18