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Executive Summary: Session 1 - 9

Symposium on Post-Conflict Property Restitution
Hosted by the United States Department of State
Thursday and Friday, September 6-7, 2007

Opening Remarks

Over the last few decades, the issue of property restitution has become increasingly important. The United States Government in general and the Bureau of Population, Refugees, and Migration (PRM) in particular have taken the lead on the issue and been instrumental in the support of international organizations dedicated to it. PRM provides a large portion of the funding for such organizations as the International Committee of the Red Cross (ICRC) and the International Organization for Migration (IOM), and helps facilitate the return of hundreds of thousands of refugees in such places as Bosnia, Serbia, and Iraq.

The issue of restitution is highly personal. It is about the person from Burundi, Kosovo, or East Timor who needs something to go home to. Ensuring that refugees and internally displaced persons (IDPs) are reinstated into their homes is important, but it is not the whole issue. As displaced people return to their homes, they expect to reclaim properties that often have been inhabited by others who themselves might have been displaced. Therefore, in order to not only resolve the immediate property issues but to prevent recurrent conflict, it is critical to ensure that a mechanism is created that everyone feels is just.

The experts at this conference bring a wealth of experience and lessons learned concerning property restitution. The participants represent a broad spectrum of the donor and aid community. They speak on their personal behalf, and their comments are not for attribution.

Thursday, September 6, 2007

Session One: Property Restitution in Bosnia

The Presenter described the complex situation of Bosnian property restitution shortly after the war. She focused her presentation on the elements of the displacement phenomenon, the actors, and mechanisms involved in the reconstruction process, and the outcomes of this process.

From 1992 through 1995, the conflict in Bosnia was just one part of the violence that engulfed the region. Nationalist leaders successfully practiced ethnic cleansing of minorities as they expelled approximately 2.3 million people (50 percent of the pre-war population) from Bosnia. Displacement was accompanied by systematic property rights violations, including violent seizures of property. During and after the war, all sides used private and public property laws to entrench property seizures in areas that had been ethnically cleansed. For example, Bosnian authorities issued decrees that allowed for the allocation of “abandoned,” “socially-owned” property for “temporary” use by others than its original proprietors. Although temporary in theory, Bosnian courts were not strong enough to challenge these policies in the long-run. Also, authorities set unreasonable deadlines for people to return to their property before it would be considered abandoned. Some of those occupying the properties were themselves IDPs; others were opportunistic military personnel, police, or other nationals.

Even after the peace agreements of 1995, ethnic cleansing and displacement continued. Annex VII of the Dayton Peace Accords explicitly recognized, among other human rights protections, the right of refugees and IDPs to the restoration of their property or compensation. Annex VII also established a Commission for Displaced Persons and Refugees, which took precedence over domestic laws and institutions unequipped to handle the process of reconstruction. The European Convention on Human Rights contained similar provisions. The Commission had limited resources and was unable to completely fulfill its far-reaching mandate. Nevertheless, it supported and actively promoted the principle of property rights at a time when most international actors were focused on security, it restored property records that either had been lost or deliberately destroyed, and it decoded a quarter of a million property claims.

Despite its successes, the Commission had many shortcomings. It lacked adequate funding to provide compensation to those adversely affected by the war, it worked in parallel with local authorities who still claimed jurisdiction and failed to comply with Commission rulings, and it lacked the bailiffs and police forces to ensure compliance with its rulings.

In the late 1990s, having learned from their early experience, policy makers and practitioners recognized the importance, where feasible, of building on existing organizations and mechanisms, and of conducting intensive monitoring to ensure compliance with the law. The Office of the High Representative in Bosnia and Herzegovina, an ad hoc position created under the Dayton Accords, took responsibility for claims. Several amendments were made to wartime property laws, property claims mechanisms were established in Bosnia, and the Property Laws Program created a dedicated system of monitoring to ensure implementation of laws and processes.

The successes of the Property Law Implementation Process (PLIP), was due in part to its legal approach that helped defuse the highly political nature of returns and property restitution. It focused on enforcement of eviction decisions, imposed a clear obligation on municipal authorities to vacate and restore properties to their rightful owners, and dealt with claims in the order that they were filed thus increasing the credibility of the process. It also gave IDPs more freedom to move, and shifted the focus from property return as an end in itself to property rights as a mechanism.

Overall, nearly 212,000 claims were filed, 93 percent of which were recognized as of 1995. Many of the claims recognized did not result in returns since a significant number of people chose to sell, lease, or otherwise alienate their property. Thus, the “early return” clause of the Dayton Accords may have been unmet. Nevertheless, the Commission has empowered refugees and IDPs by allowing them to choose where to live. The Commission’s role in increasing certainty of individual rights contributed to a resumption of social relations between ethnic communities.

The Presenter identified a number of lessons learned from the Bosnian experience: First, sustained engagement of the international community was critical. The situation in Bosnia required targeted interventions and investments of resources at a level that may not be possible in other situations. Second, there must be linkage between local and international laws, institutions, and actors; the international community’s monitoring and sustained pressure is needed to ensure local institutions are effective. Third, realistic timeframes are necessary. Fourth, political support is necessary if compensation is to be considered a part of the property restitution process. This is easier if compensation is operated in such a way that it contributes to economic activity rather than hindering it. Finally, expectations must be realistic; it is impossible to turn back the clock to completely restore pre-war property conditions.

The Respondent contrasted the situation in Bosnia with that in neighboring Former Yugoslav Republic of Croatia, a country that experienced massive displacement in its struggle to secede. Croatia, like Bosnia, was bound by the Dayton Accords and Annex VII, and there was a significant international presence to monitor compliance with international obligations. As in Bosnia, displacement in Croatia first took the form of polarization among ethnic minorities. Also the tenure situations in both countries were similar. People in the countryside tended to live in privately-owned property whereas in the cities people generally were tenants of socially-owned property. An occupant’s right to his or her apartment was strong but could be forfeited if not exercised, for example by being absent for a specified period of time.

There were, however, significant differences which led to occupancy rights being restored to their prewar holders in Bosnia (where nearly 100,000 were claimed) but denied in Croatia (ca. 30,000).

The first difference related to the basis for restitution in both countries. In Bosnia, restitution was initially based on promoting return. In the case of socially-owned apartments, this left displaced persons vulnerable. If they did not return to live in restituted apartments they could lose them all over again for non-use, even though the general conditions might not yet make return feasible. However the rationale in Bosnia shifted to upholding rights, which allowed apartments to be returned to displaced persons as a matter of legal remedies, not on the condition of their return to live in them. In Croatia, the discussion never moved from return to rights. Apartments were permanently confiscated and their residents were eventually offered only a spot on waiting lists for subsidized housing – but only on the condition that they actually returned to wait for it.

Another difference between the two situations was the level of political and material support among host countries in Europe for the repatriation of refugees. Specifically, while western countries such as Germany supported return and restitution programs in order to be able to achieve sustainable repatriation of large refugee populations from Bosnia, most Croatian refugees ended up in Serbia, which had neither the political nor economic standing to push for resolution of their displacement.

The Respondent concluded by underscoring the importance of property restitution and the need for property issues to be a priority in post-conflict settings.

In response to a participant, the Presenter noted that the international community’s experience in Bosnia highlighted both the benefits and drawbacks of having extensive international involvement. The Dayton Accords were not negotiated in detail with the parties involved and as the international community perceived that the existing domestic institutions were weak and did not consider it feasible to utilize them, it created a totally new structure from scratch.

Discussion ensued of the issue as to whether people should have to return to exercise their legal rights to restitution, and whether the lack of returns in Bosnia indicated a failure or rather that property restitution in the form of compensation had provided individuals a range of choices. It was noted that the international community should evaluate future post-conflict situations in terms of available political and financial resources to ensure successful property restitution.

Discussion further centered on property rights as a basic element of fairness for individuals and as a part of the bigger political issue of peace in the region. In the case of Bosnia, the right of return of ethnic minorities was viewed as contributing to its remaining a unified country. Croatia, with a lack of compensation as highlighted in the European Court of Human Right decision in the Blecic case, has taken a different approach that would seem to rule against individual rights. A participant noted the particularity of human displacement in Bosnia being not a byproduct but rather the aim of the conflict, and that the Bosnian peace agreement rightfully emphasized the right of return. In other conflicts, keeping regional considerations in mind, more freedom of choice might be necessary.

In discussing the cultural concept of property, a participant noted that compensation does not necessarily equate to justice as justice is what the victim seeks, and legal and institutional issues must be considered to ensure durable solutions.

Session Two: Property Restitution in Kosovo

The Presenter began by noting the similarities between Bosnia and Kosovo. Kosovo is a small territory of 11,000 square kilometers and was not a state within the former Yugoslavia but rather an autonomous region within Serbia in the former Yugoslavia. There is territorial conflict but the Presenter was not sure it was an ethnic conflict or more of a power game for control of the territory. There is also a social factor of rural versus urban.

Events escalated leading in 1999 to the passage of UN Security Council Resolution 1244 establishing the right of refugees and displaced persons to return home and recover their possessions as a responsibility of UNMIK. The UN, however, was unprepared for the mission of governing as its normal role is to monitor, give advice and make recommendations. When the UN arrived in Kosovo there had been an absolute collapse of governing authority; local officials, schoolteachers, and law enforcement officials had departed. They took with them property records which added to the confusion when the refugees returned. There are varying views as to why this happened—a lack of security, political motivations. When 800,000 Albanians returned, the massive destruction of their homes left them no other option than to move into Serbian properties. Social decency and controls had disappeared. UNMIK was slow to take control, leaving the field open to criminals and others seeking to benefit financially from the governmental vacuum. We continue to struggle today with the resulting problems of impunity, non-functioning courts, and a shadow economy.

Despite all this, the UN is the only mechanism able to actually govern Kosovo, which is still not a recognized country but a province within Serbia whose civil servants lack professional capacity.

UNMIK maintains neutrality on the issue of Kosovo independence, but works within the context of what is possible. Coordination is vital to UNMIK’s efforts to work with other organizations and local interests. Local ownership is important; using the term ‘transitional power’ constitutes a legal delegation of power. At times, however, local powers are not interested in ownership of the process for fear of political liability.

There is a lot of confusion and UNMIK has to be clear when it talks about property. There is a distinction between ownership and use of property, i.e., whether it be residential or commercial (forest, agriculture, industry, retail), and whether it is government or private property. There are five approaches to property in Kosovo:

  1. 1. General jurisdiction - if not otherwise stated by law, the domestic courts have jurisdiction by default.
  2. 2. State property – handled by UNMIK directly through the Department of Civil Administration (DCA): June 99; Reg. 1999/1 and UNSC Res. 1244 providing for immunity from the courts.
  3. 3. Conflict-related residential disputes:
    1. 1989-1999 ethnic discrimination – two categories addressed
    2. 199 security breakdown
    3. The HPD’s three mandates were purely residential and thus had limited substantive jurisdiction.
  4. 4. Publicly and socially-owned enterprises – Kosovo Trust Agency (KTA) (Oct. 99; Reg. 1999/23) that handled privatization, administration of public enterprises, not liquidation/title disputes;
  5. 5. Private property--commercial as well as residential – Kosovo Property Agency (KPA) (Mar. 06; Reg. 2006/10)

Thus the HPD was only to deal with residential property, but not return per se. The return of the displaced did not materialize as warranted. After previous employment opportunities with governmental and public/socially-owned enterprises evaporated with the recruitment of members from the majority population, the only avenue left for sustainable income was private commercial property; a challenge UNMIK till recently did not deal with. This resulted in continued political turbulence hampering not only the return, but also the perception of rule of law and investments.

Even today UNMIK is reluctant to take up property issues as it is perceived to be a noisy and confusing undertaking. Hence the political process is driven by the diplomatic community and spearheaded by the US Government. Property approaches in Kosovo are handled by the following bodies: PD has concluded its workload addressing residential properties; TA handles privatization where there are no liquidation or title disputes; and PA handles private ownership/user right disputes.

Transparency and easy access to information is important to ensure success of a long-term undertaking like property disputes. The HPD and KPA have therefore emphasized the use of Information Technology in its internal case processing procedures, its client relations and public information activities. This has very much facilitated confidence-building and ensured correctness of data at an early stage of the process allowing all stakeholders to scrutinize the work done at all levels of a case.

In Bosnia numerous institutions were involved in the return of disputed properties rendering the process lengthy and very costly. Learning from this in Kosovo, the HPD from the outset in 1999 and until now the KPA handles the entire process of the claim from intake to full implementation. This includes features such as notification of individuals’ claims on the property concerned or to people with legal interests in the properties, proactive searches for documentation supporting all parties to the dispute, mediated, and, if no private agreement is made, sending the case to an independent and internationally-staffed adjudication panel. After an appeal, or if there is no appeal, implementation is ensured by the Agency.

The KPA is an autonomous institution under the law. An executive Secretariat makes up the main body reporting only to a Supervisory Board made up of stakeholders to the process (donor community, political authorities and representatives of the conflicting parties). While the nationals are very much “driving” the KPA, oversight is provided by the internationals for multiple reasons, some being personal safety and security (or lack thereof), confidence between the conflicting parties, and capacity building. Furthermore, the security situation limits what can be accomplished, necessitating being realistic in projecting timelines. Following information provided by the local Police, there have been some 1,000 murders in Kosovo since the international intervention. Most of these have involved property disputes. It is noteworthy that none of them involved properties subjected to HPD/KPA procedures, which would indicate public trust in the process. Almost 70% of the HPD caseload was decided upon within three years. Nearly 65% of the decisions may still end up in the physical return of the displaced population. The question therefore is what to do to make this an attractive option and what to do to facilitate such a physical return.

The Respondent said that, with certain qualifications, the international community’s role in Kosovo is similar to that in Bosnia. In fact, UN Security Council Resolution 1244 for Kosovo followed the Bosnian model. It set a high standard establishing a right to return without impediments as a responsibility of the international presence. Today, the UN Pinheiro Principles and the Reparation Principles have further developed the rights of displaced persons and refugees to return home and to housing and property restitution. A key element behind these rights is the right to an effective remedy. In this regard, housing rights have a more important role than property rights due to the fact that large numbers of displaced persons do not formally hold property titles

Displaced persons present unique problems. The question becomes how to define a normative framework so that people can recover their possessions and return to their homes. In Kosovo, minorities are threatened by ethnic division, insecurity, and other challenges to freedom of movement—an environment not conducive to return.

The Constitutional framework for Provisional Self-Government in Kosovo established that all refugees and displaced persons from Kosovo shall have the right to return to their homes and to recover their property and personal possessions. This quasi-constitutional right constitutes a dual process of return and housing and property restitution.

Eight years after the conflict, 30,000 residential property claims have been resolved. Still, this leaves the promise of return only partially fulfilled. Restoration of possessions has generally led to sales and/or administration of properties. The issue of destroyed property remains unaddressed, and the agricultural and commercial property claims process has only recently been undertaken. The KPA (formerly the Housing and Property Directorate) is facing an equal number of non-residential property claims, a difficult post-conflict transition with serious funding problems. To some extent, the challenges and responses of the 1999-2007 period may serve as a lesson for future property-restitution operations. There is a need to design a mechanism to deal with claims not already adjudicated.

In Kosovo, strategies and policies have been developed aiming at facilitating returns and housing and property restitution. The Property Standard is an example. Challenges to standard-setting include the need to involve the relevant authorities and provide police with adequate resources to ensure security. In Kososvo, local authorities have only a limited role to play, which contributes to an accountability gap. The limited cooperation between the municipal government and the HPD results in a lack of compliance and enforcement of decisions.

Questions were raised as to how to ensure accessible and effective remedies and how to evaluate effectiveness. If the displaced are not willing to return due to a lack of freedom of movement, repossession of their homes may not be an adequate remedy. Drawing on the Kosovo experience, restitution policies need to be carefully assessed and an approach clearly articulated from the beginning. Too many issues that could have been addressed from the start were not. Also, the program must be reasonably conceived and implemented with adequate financial and human resources. We must consider sustainability, funding, the design of the admissions process, the relationship between returns and restitution, and the possibility of using mass evictions as a tool to facilitate return. Eight years later many claimants still have not had their property claims settled, and displaced persons continue to live in inadequate conditions. Questions remain as to whether there should have been a compensation scheme in place, as well as how the restitution and the returns process can best benefit those without titles or documents, such as landless Kosovo Roma/Ashkaeli and Egyptians. Land allocation schemes may be necessary in certain cases.

In response to a question, the Presenter said general access to the technology used by KPA was not available but that there was interagency cooperation as well as legal aid and training by NGOs as to how to use internet tools providing detailed information in all individual cases. The expense of printing and distributing materials does limit access. Ten of the 300 KPA staff are internationals and they account for one-half of the personnel budget. The IT section is heavily dependent on data bases run by locally hired staff, which constitutes a capacity-building component.

There are significant costs associated with collecting claims. Still, the HPD was able to successfully handle 70 percent of the cases within three years. This is a clear indication that, with training, local institutions can take over from the international.

Drawing on his experience in Kosovo, one participant commented that, in contrast to the current focus on restitution, the attention of the international community was at first on political aspects. A standards exercise whereby different agencies got together to consider priorities contributed to changing that focus. Local actors were not invested in the courts and chose to ignore the rulings of the HPD. There is a parallel system in Kosovo for Serbs and some Albanians with access to the Serbian system that posed many problems with the documentation used to confirm and investigate claims. Other problems were the result of initial delays in the HPD administration. Informal settlements among the Roma also became a big issue.

Agreeing, the Presenter added that the international community does not want to act without a mandate. Concerned with accountability, it has to be pushed to act. The efficacy of institutions is largely dependent upon the motivation, capabilities and strength of individuals. This is particularly true with the international community in which bureaucratic structures are often weak. It can be a drawback but also a strength in that one dynamic individual can have a big impact. That was the case with UNMIK in which property issues were getting little attention until one individual arrived and got things moving.

In response to a question, the Presenter explained that the initial decision in Kosovo to deal only with residential property claims and to exclude commercial ones was based on HPD’s expectation of an extremely high volume of claims. Although it is generally considered to have been a mistake, he said the decision would probably still be the same today as it was in 1999 because of a lack of adequate information about the situation. Another significant lesson learned from the HPD undertaking is that funding for the KPA is fundamentally flawed both in approach and availability. He added that there is no link between the political actors and those financing the international community.

Shelter is an expensive item that raises equity issues as to relative resources to allocate to different regions and countries; something many tend to shy away from. In 2003, HPD was seeking funding to open another office in Kosovo for which there were promises but the money never materialized. At the same time money that would have been sufficient to open the office was provided to another country to resettle 16 returnee families—an activity that had more human interest appeal and visibility.

A participant commented that unresolved housing and property rights issues need to be addressed from the very beginning and, if they are not dealt with peacefully, conflict and violence are almost inevitable. Ethnic cleansing in the Balkans brought passions to the fore. In Africa, unless you deal with property restitution, conflict resolution will be impossible.

The Presenter commented that systematically marshalling resources so that they are used effectively is one of the things on the “checklist.” Advocacy campaigns for a rule of law help promote consciousness-raising, an endeavor with which the International Peace Academy has had some success.

Keynote Address

The lunchtime speaker introduced himself as a practitioner of reparations with no particular views on policies. That being said, he identified several lessons identified with past instances of post-conflict property restitution, a key lesson being that property restitution be considered from the beginning of reconstruction. It is not necessary to dedicate a staff member to deal with restitution issues, but it is important to ensure continuity so that restitution knowledge is not lost with the loss of institutional memory as people leave organizations.

It is also important to determine the context in which property restitution processes are addressed. Although the topic of the symposium was “post-conflict property restitution,” perhaps it would be better to address property issues in discussions of the prevention of conflict or even while a conflict is still ongoing. Another question to consider is whether the methods for handling reparations are dealt with separately or are an integral part of an overall strategy for ending conflict and rebuilding war-torn regions.

Taking the example of the time-intensive procedures associated with Iraqi law, the practical implementation of applicable law must be considered. In such cases, international experience may be able to educate and guide domestic actors.

The issue of whether to have a multi-party commission or court adjudication determining property restitution is a philosophical question with many ramifications. The speaker disagreed with the position that separate claims mechanisms would take expertise away from the regular court system. He further felt that domestic courts must operate in parallel with international courts. He also thought it important to have a strategy for the eventual handover of authority. The institutional and the administrative sides must form an organized transitional structure.

The speaker emphasized the utility of reliance on information technology (IT) innovations. Incorporating IT into the restitution process can take time, but is an important and effective component.

Finally, the speaker stated that the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons, referred to as the Pinheiro Principles, underscore the need to address property restitution issues in post-conflict settings and are the most concrete and relevant documents existing to date on property restitution. They should be seen as guidelines rather than tools for implementation. Property issues and analysis must be one of the issues on a checklist. The Rule of Law advocacy campaign which gradually raised consciousness could be used as a model for property issues.

He did not advocate a permanent international claims institution, but proposed creating a roster of people with relevant expertise to be consulted as needed on property restitution issues. Discussion touched on the need for an institution that would provide professionals and stakeholders a forum for sharing their expertise. One participant suggested the UN Human Rights Council, but the speaker thought that body was dissimilar at a tactical level.

If it is not possible to focus on property returns at the same time as other aspects of post-conflict reconstruction, everyone agreed it should be considered very early in the process. The volume of claims could be a factor in not doing so, however, such as in Bosnia where, unfortunately financing was not adequate. The speaker noted that there is no link between the politicians and those in the international community providing the financing. It is difficult to find a situation where housing and property rights are not part of a conflict, and shelter is expensive but not always a focus for donors. One participant raised the equity issue of where donors put their money such as in the Balkans versus in Africa.

Session Three: Property Restitution in Afghanistan

The presenter began with an overview of the status of refugees and IDPs in Afghanistan:

  • 52 million refugees returned, of which:
    • 4 million were assisted by UNHCR
    • 3.46 million were from Pakistan
    • 1.74 million were from Iran
    • 519,918 forced returnees were from Iran
    • 5,696 forced returnees were from Pakistan
    • 488,366 IDPs returned
    • 2 million refugees remain in Pakistan
    • .9 million refugees remain in Iran
    • A 129,044 IDP caseload remains

The average length of displacement in Afghanistan is 20-24 years with those who were displaced among the poorest. As families have grown and their claims to land become more tenuous, landlessness has become a major problem. Over one-third of the entire population has been displaced, half of the population has never gone to school, six percent have access to electricity, there are serious nutritional issues, and life expectancy is 44 years.

Property rights account for the vast majority of the human rights violations in Afghanistan. The issue is so acute that conventional wisdom is that it will be impossible to resolve. The beginning of property rights issues can be traced back to the communist regime during which land was confiscated under Decree #8 from anyone owning more than three hectares. When the first President Taraki was replaced by Amin in 1979 he annulled the decree and land owners had to present claims on the land they had previously owned. At the same time Mujahedin groups had begun to occupy rural lands. Subsequent wars, regime changes, displacement, looting, destruction of property, and falsification of documentation have all contributed to continuing land issues. Today the main causes of property disputes and illegal occupation in Afghanistan are:

  • Insecurity - armed elements confiscate land, block access to stakeholders, displace occupants, and forge documents; Weak governance and lack of capacity – Insufficient qualified staff willing to work for the government, low pay, dominance of often unqualified political appointees; I
  • nsufficient law enforcement – due to insecurity, clients are unwilling to come forward and even judges feel threatened and are often unwilling to work, particularly in rural areas where local, unofficial armed elements are stronger than the government;
  • Discrimination – Afghanistan is a mix of ethnic groups that historically cooperated under the Pushtan who comprise some 40 percent of the population. War and regime changes have exacerbated ethnic tensions;
  • Corruption - at district, provincial, and central levels;
  • System deficiencies – lack of a national system of ID cards or property registration leading to the forging of documents;
  • Poor economy – the illegal and informal economy dominates with opium cultivation a major source of income for much of the population;
  • Non-linear aspect of property issues – land disputes consist of local people taking the land of other locals, the government taking the land of the locals, and the locals confiscating the land of the government.

The legal environment in Afghanistan is characterized by two distinct systems: the customary or traditional and the modern statutory system. The local traditional systems are products of the religious Sharia and the Juergas and are overseen by well-respected elders who attempt to mediate amicable solutions. There are, however, differences between Sharia and customary law as they pertain to rights for women and outsiders. The customary system can be characterized as less expensive, faster and easier to enforce, and it is sometimes effective, but it can be tricky to find a balance between manipulation and impunity, and there can be problems of enforcement and collusion between local actors with more powerful parties dominating. It therefore is important to ensure independent oversight.

The modern system can be expensive, slow, unenforceable and corrupt. Laws have been changed with the changes in regimes and some judges do not even have copies of basic laws. President Karzai has taken steps to reverse this through several decrees providing that the “recovery of property shall be processed through legal organs and that returnees shall not be subjected to persecution.” However, as insecurity remains a major cause of disputes, the decrees are largely ineffectual, particularly outside of Kabul. There has been little but much-needed attention paid to transitional justice.

Despite all this, the Norwegian Refugee Council was able to set up programs to mobilize communities and use innovative strategies to foster an atmosphere that has allowed people to challenge the warlords resulting in over a million people getting their land back.

Many of the international people working on the property issue in Afghanistan began working the issue in the Balkans, and while that prior experience has been of some value, each area has its own particular set of problems, and realities. Lessons learned cannot necessarily be applied to a new situation.

Session Four: Property Restitution in Iraq

Both during the Baathist regime of Saddam Hussein and the period following his fall, Iraq has experienced large-scale population displacements both within and outside the country and inevitably land and property rights challenges. The Presenter focused on property restitution related solely to the Baathist period from 1968 to April of 2003, as the only ones for which redress has been systematically addressed through the creation of a special commission. Iraqis falling victim to property rights violations today have no option for seeking justice through the ordinary court system which in many cases will not be able to help.

During the Baathist era there were three contexts in which the regime used forced displacement and violated property rights: a) “Arabization policies” that replaced non-Arab communities in the North mostly with poor Sunni Arabs from the Center and the South, particularly in Kirkuk; b) punishment for real or perceived opposition to the government mostly Kurds and Shiites expelled to Iran; and c) “crony capitalism” whereby members of the regime seized desirable land for their own enrichment. As a result, thousands of people lost their property.

To deal with the thousands of claims following the fall of the Baathist regime, the Coalition Provisional Authority in January 2004 established the Iraq Property Claims Commission (IPCC). In early 2006, the Iraqi Transitional National Assembly passed a law replacing the IPCC with the Commission for the Resolution of real Property Disputes (CRRPD). While the CRRPD has the same mandate as the previous Commission there were some important changes in that it explicitly provided for compensation to current occupants of disputed properties, and it changed the valuation date for the calculation of compensation. The CRRPD has thirty offices throughout the country with thirty-two Judicial Committees reviewing and deciding claims. All parties to a claim have the right to appeal against a Judicial Committee decision.

So far the CRRPD has received close to 135,000 claims just from within Iraq. Thus far, 37,000 have been decided; an impressive number considering the complexity of the issues and the continuing instability in Iraq. The situation is less positive, however, when one considers that of these some 9,000 decisions will have to be re-reviewed against the new valuation of compensation and the provision of compensation for secondary occupants, as well as the fact that there is an unlimited right of appeal. Furthermore, there is a low rate of enforcement of restitution decisions. While there are no accurate figures as to the extent of enforcement, evidence suggests that until recently there was an unwillingness on the part of some Property Registration Offices to re-register property in the names of the original owners, and a lack of capacity and an unwillingness of the Ministry of Justice to evict current occupants. As for compensation decisions, until December 2006, there had been no procedure established within the Ministry of Finance for paying compensation claims. Also, there has been the practice of the Ministry of Finance, in accordance with its standard procedures to protect the state finances, to routinely appeal all CRRPD decisions in which the Iraqi state stands to lose.

The Presenter elaborated a number of lessons that can be learned from the Iraqi experience:

 

  • Large-scale property restitution should be addressed within a larger transitional justice framework. To look at land and property restoration in isolation raises questions of equity if one does not redress other victims of the regime such as political prisoners, families of those who died at the hands of the regime, or people who lost property other than real estate. Furthermore, there is a limited of overall resources to redress previous violations of property and other rights. There therefore has to be a political decision of how much the state can allocate for property restitution and how much to redress victims of other violations.
  • The type of reparation process chosen (i.e., judicial, quasi-judicial, administrative, et al) should be adapted to the expected size of the claim load. The choice of the best type of process to carry out a post-conflict property restitution can be complex. It needs to take into account the general capacity of the state, the available human and material resources, the expectations of the claimants and the wider society, continuing conflicts and tensions, and the size of the expected claim load. There is the pressure of expediency and resolving claims within a reasonable period of time. It is doubtful that the quasi-judicial process is best suited to deal with the magnitude of the caseload in Iraq.
  • There is a complicated relationship between social justice and the funding of large-scale property restitution efforts. There is a question of fairness in using current state resources and asking current taxpayers to bear the financial burden of compensating for past wrongs, and thereby diverting scarce resources from other state services. This issue can be partially addressed by trying to link reparations efforts with a policy of recovering stolen assets by the former elite who have likely stashed its wealth outside the country.
  • A successful large-scale property restitution effort will have important redistributive effects in the society, promoting social justice, reconciliation and peace-building. To restore previous property relations, if they were based on gross inequality and policies precluding access to an important part of the population would be to reinstate a system that could end up sowing the seeds for future conflict. It could further undermine social reform objectives of the government in other areas, such as land reform.
  • The capacity in existing state institutions needs to be taken into account at the outset. A common reason to establish special-purpose property restitution commissions is that other state institutions lack the capacity to deal with a large property claim load in a fair and expedient manner. However, the commissions still need to work with other already existing institutions such as a property registration body, the court system for enforcement of property transfer protection rules while a claim is pending, the police for enforcement of decisions, the Ministry of Finance and banking system for payment of compensation, et al. This can pose serious problems where the capacity of existing institutions is weak, or even non-existent, or where they are highly politicized and corrupt. In such cases an international commission or structure may be required although also here the challenge of how to interact with the other state institutions remains.

The Presenter ended by raising some challenges and questions that the CRRPD will face in the coming period:

  • Will the CRRPD be able to resist the increasing politicization and sectarian fragmentation that appears to affect the whole of Iraq;
  • How long will the CRRPD be able to operate in regions where law and order have all but broken down;
  • What is the impact of the continuing large-scale displacement on the ongoing work of the CRRPD;
  • Will the Sunni community view the work of the CRRPD as legitimate or as a manifestation of revenge; and
  • Will the political will be sustained to fund a restitution process that could last more than a decade when the current violence is beginning to overshadow the past crimes.

The Respondent distinguished between “issues identified” and “lessons learned” since we are still not clear on what process is preferable in a particular situation. During the early stages in Iraq, structures and processes were strongly debated with the international and Iraqis disagreeing on whether a commission or a court was preferable. The claims commission subsequently took more of a court-centered approach which might be considered inefficient for such a large caseload but that the Iraqis consider more in line with their own culture and therefore helps to legitimize the process.

Regardless of whether or not the property restitution program is part of a larger transitional justice system, we need to be cognizant of the goals being aimed at. In Iraq this should include redressing past wrongs, responding to the refugee/IDP problem, and preventing sectarian violence. Although valiant efforts were made, none of those goals was adequately embraced. There must be additional programs or institutions to support the Commission to ensure its work does not contribute to exasperating other social issues such as landlessness, thus setting the stage for future conflict and violence.

The political conflict and sectarian violence in which property restitution is taking place make it impossible to keep in touch with all relevant parties and has therefore lead many to question the Commission’s legitimacy and effectiveness. There was also the constitutional problem that, a legal framework could not work until the policy decision was made to restore property rights. When there are widely divergent views as to how to deal with restitution, whatever decision is made can lead some to question its legitimacy. In Iraq there is a circular problem in that policies created to prevent violence could, in fact, generate more violence. The Commission therefore decided to deal with less controversial cases first in order to overcome many of the highly politicized problems among ethnic groups.

In response to a question, the Presenter said that we must try to anticipate and identify those countries where large-scale, unorganized returns might lead to property restitution conflicts and even violence rather than wait until the returns are happening and we’re in an emergency situation. We might want to devote less time to identifying short-term solutions to conflicts and develop longer-term measures such as sharing the land resources.

Responding to a question of what happens if the major players support a “soft partition,” or the separation of sects, the Respondent explained that it is feasible that a government could decide it would promote national reconciliation by giving bulk plots of land to the authorities within each ethnic group rather than restoring property rights to individual property holders. However, if such a policy were instituted, the Commission could become one more tool used to settle scores among groups grabbing for power or wealth. Thus far Iraq has resisted the fragmentation of the state. One participant observed that the soft partition debate involves applying lessons of Bosnia, which might not be appropriate to Iraq.

Finding land for distribution requires defining the parameters of the restitution program. Many people did not have land before they were displaced. There is no obvious starting point for an ideal distribution of land in Iraq. From that perspective, it may not be appropriate to talk about restitution.

Another participant noted that a major challenge is that we are more or less dealing with failed states characterized by corruption and institutional incapacity. The role of the international community therefore is important. In order to define its role it must understand the geo-political issues and get involved much earlier. Additionally they have to link the money with the restitution mechanisms. Humanitarian assistance is needed to balance the fact that there will be many losers. Even if people don’t return in the short term, or never return, their rights must be acknowledged.

There was conjecture as to how to ensure restitution in failed states such as Afghanistan and Iraq, and deciding whether a “needs-based” or a “rights-based” approach is more culturally appropriate. The Respondent said that speaking of rights is ambitious and not always helpful when looking dealing with issues that go back many years. With the new legal systems and developmental approaches in place today, taking a retrospective approach will often lead to an unfair, unequal, or discriminatory outcome. We need to be honest about the language we use and the goals we are trying to pursue.

Someone suggested analyzing the situation from the short-term, the medium-term response of establishing property commissions, and the long-term objectives or goals. Once you have achieved the immediate goal of restoring the status quo ante, the next and separate issue becomes a needs-based and political approach, which may involve partitioning the state or some other measure. The Presenter responded that the medium-term might turn out to be very long. If you establish an order that is fundamentally unfair, you might never get to the third, long-term stage. The Respondent added that that stage may be referred to as a safety net stage rather than reform, as those who do not benefit from the property restitution process that often excludes returnees who have no property claims. Excluding them could result in the need for emergency assistance. The Presenter said that, in looking to the future, the goals of any reparations commissions established in Iraq should be the reconciliation between the different communities and reestablishing the state as a legitimate entity; as for now it appears that the Iraqi state is increasingly being hijacked by partisan groups seeking to further their own goals. There must be a reestablishment of trust between citizens and the state as a whole.

A participant observed that restitution must deal with two challenges: land reform and timing. There is no way the international community, as outsiders, can determine who should receive restitution. He also raised the question of how to achieve a durable solution. It is a process of dealing with conflicts as they come up and handling them peacefully in the aggregate. Another participant suggested that we examine the linkage between returns and restitution. It doesn’t just involve choices people may make while in displacement or exile. For families that have increased their numbers while away, issues of property restitution can become less relevant.

One person remarked that the discussion thus far had been either Eurocentric or Euro-phobic. However imperfect, there is still a system of common values on which we can build; even if we build from the bottom up beginning with traditional systems. Someone remarked that the discussion was a reality check whereby we have to look at other tools available upon which to build upon the customary and move to the modern legal and developmental approach. The process in itself may have a value beyond the narrow objective of property restitution. Returning is not only an event, it is a process, and housing can be seen not as an end in itself but a beginning.

In concluding the session, the following issues were stressed: the importance of property restitution, managing expectations, land reform as a larger issue, transitional justice, the importance of transparency, property remaining on the radar screen, the international community being aware of the cultural setting within which they are working, and the importance of achieving some early successes.

Session Five: Property Restitution in Liberia

The main issue addressed was whose mandate it is to deal with post-conflict land restitution. In Liberia, there are many squatters who are refugees themselves and who have taken over others houses as they have become available. The government does not have the means to resolve the property issues, and the UN is often very reluctant to take on the complicated land and property issues due to questions of sovereignty.

From 75 to 90 percent of all court cases involve property, which is one of the most hotly contested within the country. Further complicating the issue are a crippled court system, an undeveloped legal mindset, and the lack of a property registry or system of deeds. The use of fraudulent documents is widespread making it almost impossible to resolve claims issues. The situation is further complicated by the practice of unscrupulous land owners who sell the same land to several people. People increasingly turn to informal or “micro rule of law systems” whereby people share land access and land use privileges while attempting to reestablish and secure property claims. However, these tend to parallel the general fracturing of society into post war groups, i.e., those who share similar experiences or identities. In reality, the local laws established by these groups can take precedence over state law or the precepts of the international community and becomes a major obstacle to the establishment of a rule of law.

A parallel may be drawn with neighboring Sierra Leone whereby the customary lineage land owners controlled most of the property within the country, much of it uncultivated, while large numbers of marginalized people were landless. People displaced by war sought to cultivate land belonging to lineages other than their own but, with no laws ensuring land tenure, owners were afraid such use by outsiders would jeopardize their land rights. This has led land owners in both Sierra Leone and Liberia to disallow tenants to build houses or make other land improvements, which might provide them with a legal claim, and in some cases to preemptively evict tenants. Such disputes can lead to renewed conflict and further displacements.

Session Six: Enforcement and Secondary Occupation

The years 1995-2005 represent the high water mark for a humanitarian approach to development and humanitarian relief roughly from the Dayton Accords and intervention in Kosovo to the establishment of the Pinheiro Principles and intervention in Iraq. At that time humanitarian assistance was considered a human right.

However, humanitarian and human rights law can go just so far in handling secondary occupation. For example, it is inadequate to achieve restitution for the 100,000 people expelled through ethnic cleansing. In the Blecic case in Croatia involving socially-owned property or so-called “temporary rights,” the European Court of Human Rights applied a traditional human-rights approach in ruling that there is no right of property restitution in the context of the civil war.

The key to any rights approach is finding an effective remedy, which is not possible with a rule of law. The return of large numbers of displaced people necessarily entails compromise. Theoretically, returnees have a right to their land, but it doesn’t always work that way in practice. We need to develop more sophisticated approaches to secondary occupation and the rule of law, and to negotiated access rather than approaching the issue as involving fundamental rights.

Land shortage is not the main problem, and land restitution is not always the answer. In Liberia the owners, usually elders and chiefs, are part of the problem. In Angola, as in Liberia, there are huge parcels of vacant land, although some tracts are not sufficiently fertile to be economically viable. Simply returning people to their land is not sufficient. In Afghanistan there was a rush of people to the cities. Our support to projects in the countryside to allow people to return to an area to which they did not want to return was not the answer.

The majority of the three million IDPs in Colombia do not want to return home. But, should we be defending their right to remain where they are despite the fact that it’s virtually impossible to get resources to them? Increasing urbanization is a modern phenomenon that accelerates during conflicts. What do we do about climate change, and what is the human right to land in the context of climate change? As humanitarians we are not equipped to deal with these questions.

There are people who are never going to go back to their previous homes. The Roma will never return to Kosovo because of a general perception that they cooperated with the cleansing of Kosovars. In Bosnia, people were facing a situation of no jobs, loss of their cultural networks, and their savings. We did it right in Bosnia. We had troops, money and lawyers. We leaned on local authorities to repeal wartime laws and then figured out how to enforce the eviction of secondary occupants including officials. Enforcement did not come about through the good will of the local leaders; they only acted when pushed by the international community. Funding from U.S. and European aid agencies was essential. One person noted that in Bosnia there was a nation-wide information-sharing network publicizing the eviction of sqatters. One participant observed that the response of politicians from Bosnia and Herzegovina to international pressure was closely linked to the question of Croatia gaining EU membership.

Europe has a different tradition of rule of law and enforcement from the Middle East and Asia. One lesson we have learned from Africa and Central America is that governments need to restore the rule of law even as a conflict is ongoing. International support is often needed to bring this about.

The Blecic case points to the weakness of the right of property in international law. The legal mechanisms aren’t there to begin with. To find solutions requires the political willingness of the actors to compliment the legal approach with humanitarian aspects. Another commented that the application of human rights did not apply after a war. The presenter agreed that the Blecic case was not the best one to have taken to the court and that it had been a bad decision in which an international body had not upheld human rights. He predicted there would be more and better cases brought to test the principle, and that the European Court of Human Rights in the future would contest the issue of restitution.

To the presenter’s point that access sometimes must be negotiated, another participant remarked that human rights continue to legitimate property restitution.

Raising a related issue, a participant asked how applicable or transferable a human rights approach is outside a western or European context. The right to private ownership is not the same in parts of Africa and Afghanistan. In Uganda, for instance, women don’t have access to land in their own right.

Citing an emerging consensus that restitution is not always desirable and could lead to the next conflict, depending upon the circumstances, restitution still could be a symbol of the beginning of reparation.

One participant noted that Kosovo is a unique situation because the housing and property directorate was given the power to administer abandoned properties. There also was some desire to return. Dealing with a whole village of people who know each other allows the use of secondary occupation while homes are being constructed. If coordinated properly, it can lead to a holistic approach that contributes to cooperation and a local buy in to the process.

Rights-based approaches make for coherent arguments. It is not just about the right to property but the right to return home. If the right to property is seen as an end in itself, there is a problem translating it to other cultures. The human rights framework, however, can be applied to other cultures. The issue is more than just about property. In Uganda, for instance, tribal and indigenous groups uphold customary law as long as it doesn’t infringe on individual rights. In Afghanistan, restitution issues may not require new approaches. Reform of customary and adjudication procedures could work.

Concluding, the presenter said the particular national situation should be the starting point. The Pinheiro Principles are great, but cannot be a blueprint for dealing with real situations. The presenter stated he had written the manual on Afghan property law because there nothing existed that would advise people how to proceed. The UN people know the standards but don’t know the national law. Both are needed to deal with the real problems faced on the ground.

Session seven: Commission versus Court Adjudication

The Presenter began by distinguishing between courts and commissions, namely that the former are permanent and preexisting institutions that employ longstanding procedural and evidentiary rules, whereas the latter are more temporary ad hoc bodies with streamlined and evidentiary rules specific to the case in hand. Given this difference, commissions are the better option when there are mass claims and similar patterns of property confiscations occurring in particular areas and time periods. The debate can, however, become a more complex one of justice versus efficiency in which courts are frequently associated with justice and commissions with efficiency. This argument is a bit misleading because an important component of justice is timely adjudication. Furthermore, inefficiency may be irrelevant in post-conflict settings.

To define the role of courts we must discuss the idea of legal syllogism; the application of general rules of law to a particular set of facts in order to produce a specific result. Given this concept of the legal process, truth-seeking is essential in the courts. Applying the law when there is no precise knowledge of facts can lead to injustice. With that said, there are various methods of truth-seeking such as common/adversarial or civil/inquisitorial, as well as different applicable evidentiary rules in domestic systems. These methods operate on the assumption that norm-breaking behavior doesn’t happen and that the burden of proof falls on the party asserting otherwise. That assumption further implies that court adjudication is occurring against a background of peace rather than a post-conflict situation in which norm-breaking behavior may become the rule rather than the exception. The question then is how to ‘generally acknowledge’ patterns of violations. First, there are peace agreements, international reports, and legislative determinations that are based on investigation and reflect political consensus or perhaps compromise. Also, while international or domestic judicial precedence identifies fact patterns and relevant law, it loses value if it yields no judicial response. Finally, commissions can also be mandated to draw general inferences as rulings occur.

The practice of ‘generally acknowledging’ patterns of violations is advantageous for it allows efficiency without sacrificing justice. In other words, the facts don’t have to be proved by the already suffering victims. This approach can facilitate expedition and allow the reconciliation and accountability that is vital to transitional justice. Mechanisms to bring this about through commissions’ procedural and evidentiary rules include a lower threshold of evidence (reducing the burden of proof on claimants), acceptance of alternative forms of evidence, use of presumptions and perhaps provisions for limited appeals. Ultimately, commissions involve not only fewer expenses, delays, and uncertainty for victims, but also less of a burden on the state.

The legitimacy and acceptance of decisions by ad hoc Commisions hinge on their conformity with the domestic legal order. Redressing violations may require the interpretation of existing laws or the establishment of new laws or amendments that are provisional and explicit lex specialis.

The interface of commissions with the judicial system presents another potential problem as commissions’ effectiveness may depend upon the availability of judicial and/or constitutional review. A ‘floodgates’ scenario could undercut the efficiency of commissions. There should be a single chain of appeal and limited grounds for accepting appeals.

The respondent began by asserting that we should not view courts and commissions as either/or alternatives. Both are valuable as each can address particular problems and be given special mandates. Commissions do allow a certain amount of freedom in designing their structure to fit particular needs. They can use specific procedures and powers usually associated with courts and still maintain the flexibility that will allow them to respond to special circumstances.

Still, in the long-term we must acknowledge the importance of courts in property restitution as it is the rule of law that allows returns and requires that national courts are empowered and their capacity built or rebuilt to provide justice. If necessary, we must reform them but always make them a part of the process by engaging them and encouraging national ownership, building trust in them and then calling upon them to fulfill their roles and responsibilities. Here is where commissions may be helpful in providing support, especially important in the early phases of handling heavy caseloads.

Courts can be active in adjudicating cases outside of specific mandates and handling cases that would otherwise fall between the cracks. The small number of these cases lessens inefficiency concerns.

Jurisdiction may also be expansive given that courts are not limited to relying on parties to a case provide evidence for civil law systems and have inquisitorial powers that allow flexibility. The courts might also resolve conflict through the inquisitorial process where there are allegations of duress. In addition, courts are needed to clarify any ambiguities and establish and confirm basic principles that can provide a basis for review by international or regional courts. National courts would be able to adjudicate in clear legal terms, which is especially important for countries with European Union membership aspirations.

The panelist reiterated that while ad hoc commissions are sometimes possible and appropriate, national courts should also be considered. They are valuable in the conversation about law reform, new policies, etc. This relates to the important concept of capacity-building through information technology and staff reinforcement that includes a younger, impartial generation not associated with the past. To ensure that courts operate effectively they must be accessible. This might mean establishing new legal aid mechanisms and considering a role for the international community.

The subsequent discussion began with the Iraqi property commission that was created specifically to address wrongs and has been acting as a court. It approached the issue of timing but was rebuffed since, under Iraqi civil law, each claimant has a right to a civil hearing. The commission therefore needed to work within existing constraints. Grouping similarly situated claims is a more efficient way of proceeding as it allows the commission to at least deal with the same issues which can expedite the process.

One participant noted that in Colombia there is an issue of how to deal with three million IDPs, sixty percent of whom have some reference or claim to having lost land or access to land. There is a question of whether any successful court-based restitution has worked where there is no peacekeeping operation as in Colombia. Once claims are resolved in the commission, the commission dissolves. The question is how to follow up. Once the commission is dissolved, matters would be handed over to courts that would then be responsible for enforcement. Concerning Iraq, the Presenter relied on an assumption of a Western-style legal system whereas that country operates within a culture of civil procedure and not administrative law. Handling a mass caseload is problematic, and the Presenter admitted that she was not aware of anything existing on such a large scale. When it is more digestible, it is easier. Someone recalled a case in Turkey, which was not really a restitution case, whereby a law was applied to provide compensation to people denied access to their properties as a result of the war that took place in the southeast of the country in the early 1990s. People were compensated for lost income for example from the destruction of orchards. In very rare cases, the property had been occupied.

One participant observed that neither a commission nor a court is an option in the Democratic Republic of Congo (DRC) or East Timor where courts have always been irrelevant. Where the state is weak, has few resources and is incapable of organizing basic services, you don’t really want to invest money in a court system. At the same time, setting up a commission is a very difficult task. It might be better instead to consider a third option such as identifying state structures that could fill the role. The Presenter added that she was not sure how one would go about reestablishing a rule of law without investing anything in structures that would ensure that rights are observed, but the exercise should not be given up on altogether because it is clear that the rule of law has to be a primary focus. Someone suggested that it may be inappropriate because it may suggest a pejorative connotation and something that is sloppy. He then called attention to two points. First, what all this is driven by parameters—numbers of claims, what is the main purpose? Is the purpose to do as much justice as possible, or is there another objective? Where the line exists between court and commission in terms of numbers is difficult to see. He continued to his second point: on the subject of individual justice versus these other goals combined into justice for the group as a whole. To be mostly driven by numbers and methodologies is what this is all about.

When the rule of law breaks down, it is difficult to build on existing mechanisms. We need to develop more tools and apply some of the lessons learned from basic situations. A training course in IDP principles was undertaken in the DRC. The very basic notion of rights and justice had disappeared during conflict, and the challenge was how international actors can come in and establish systems where there is almost nothing, and try to link micro-justice systems with the ideals of courts and commissions.

One participant suggested that in a case of mass claims, a commission can provide justice for populations that might not be in a position to access a court such as the elderly or illiterate. This might be particularly the case in Africa. The Presenter underscored that in international peace missions, the crucial thing is making sure that local property issues are consistently on the “checklist” of issues to be addressed in mission planning and implementation and that local dynamics are therefore understood.

One participant said that if we look at the office whose job it is to verify documents, the majority of cases won’t need a mechanism and others can be left to the courts. Another participant agreed, noting that even matching documents with the records still requires administratively linking them to people. The adjudication part would be the cadastre part with enforcement a separate process. Another participant explained that the cadastre idea is one option but it is important where there is no rule of law to create mechanisms that link solutions to particular situations.

Responding to a question of whether donor agencies should look to anthropologists to find out what systems existed before a conflict erupted, someone said that in Liberia both anthropology and geography were used for research and are fairly advanced in post-conflict analyses. From norms to international treaties—bringing norms to a function of legality is useful.

One participant noted that several things weren’t mentioned during the debate such as the importance of ensuring that similar cases are treated alike. Commissions may enable us to decide policy that a court can’t handle such as the legal system or the administrative apparatus. But, how do you execute restitution in situations with neither a court nor a commission. There seem to be two different approaches—victim-based and more of a “what’s wrong with the system” basis.

Session Eight: Domestic versus International Oversight/Roles

The Presenter began by stating that security cannot be taken for granted and that the international community must respect the security concerns and norms of claimants and judges in restitution cases. Tampering with property can be a very dangerous business. Property restitution is only one element in a string of issues. The wanton destruction of property is often used to further aims of subjection, discrimination, and ethnic cleansing. Destruction of property remains a common political act of war.

With this background in mind, he focused on domestic versus international oversight, roles, and responsibilities. There are three steps to consider: 1) an international peace agreement; 2) the post-conflict setup; and 3) the linkage between property restitution and returns.

In building on the experience in the western Balkans, any discussion of post-conflict property restitution needs to begin before a peace agreement is reached. People have a right to restitution of any house or property confiscated or destroyed. We can’t retreat from that principle, on which there is a consensus in international law. Peace agreements should include housing and land issues based on the Pinheiro Principles handbook of guidelines for housing and property restitution that lists several lessons learned, including the need for early planning. Ignoring restitution problems can aggravate rather than diffuse tensions. Also, property restitution can be vital to economic stability. There is no disagreement on those overarching principles, but they can only come to fruition in societies in which there is some respect for human rights. These guidelines are consistent with European ideas of fundamental rights and freedoms. Any country that aspires to become a part of the EU or even to be encompassed by the Good Neighbor Policy must abide by them.

The Dayton Accords or the General Framework Agreement for Peace in Bosnia and Herzegovina (GFAB) of December 1995 represented a milestone in concluding several protracted conflicts. It was the first time many basic rights were explicitly written down. The Accords specified that all refugees have the right to return freely to their homes, and although they may not have been specific enough, they went further than any prior peace agreement and it was probably as far as they could have gone at that time. Annex VII provided for compensation, and it is still in effect. Annex VII aimed to stop intentional destruction of property as a means of preventing return to those lands. The language employed in Security Council 1244 for Kosovo, requiring the return of refugees and IDPs to their homes, was perhaps an indication that the world was watching to see whether or not Annex VII would be applied in Bosnia. The real challenge was in facilitating minority returns.

The Ahtisaari Proposal for the post-conflict settlement in Kosovo tends to deemphasize the right of return and instead puts greater emphasis on freedom of choice. Overall, the specific context of the Balkans provided for a much greater emphasis on post-conflict property restitution. There was a lot of pressure on the international community. The bulk of the people only returned once a memorial had been built that served as a sign of reconciliation. People needed to decide if they wanted to be where their family members were buried.

The presenter identified several lessons for future restitution situations:

  1.  Develop a coherence between domestic law and relevant international law by repealing domestic laws that are discriminatory in nature or incompatible with international law;
  2. Mass claims procedures are more effective than individual claims in dealing with issues that need to be dealt with in a timely manner;
  3. Effective international coordination is essential;
  4.  Public information campaigns and transparency programs should be established including the publication of statistical progress. For example, in Bosnia campaign slogans were painted on sugar that was widely distributed;
  5.  The need to attempt to protect or reestablish property records that have been destroyed;
  6.  Provide free legal aid. In Bosnia, all the lawyers employed through the free legal aid program were much better qualified than the judges; and
  7.  Property restitution cannot and should not be limited to residential property. We need a precedent-setting operation to clarify social tenancy rights.

Refugee return is not an event, but a process. Property restitution plays a vital part in that process, but it is only one part. There are other issues that ultimately determine whether restitution takes place or not. No one wants to hear that there are 10,000 war criminals running around free in Bosnia. There are a lot of poor, non-displaced Bosnians who are in very similar situations as are the IDPs.

The respondent explained that OSCE has an interesting mandate as the institution-building pillar in Kosovo; which sometimes entails building new institutions and sometimes improving the capacity of existing ones.

It is important, no matter who is directing things, that the international and local communities work together as partners. While having an end goal, we have to be realistic about fully reaching it. In a less than perfect world, we need to focus on creating a sustainable solution. One of the things OSCE is trying to do is to temper its approach and language and to not be too critical of local institutions. (We leave it to Amnesty International to write the scathing reports.) It is important to have a local buy-in with some degree of local ownership. Sometimes the objectivity and neutrality of the internationals, who have no direct stake or emotional connection to a dispute, are helpful to building a working partnership. People in Kosovo were happy to have the international community handling property disputes. It can provide a “cover” for local officials who can blame the internationals for any problems. Meanwhile, the capacity of locals must be expanded so that when the internationals leave, actions taken will be sustainable. Sometimes international organizations can assist claimants by gaining access to documents that were displaced.

Locals’ knowledge of domestic laws, local culture and local history is a value-added for internationals, who then can explore how to think outside the box and togetherwith the locals can explore creative approaches.

The Presenter added a note on the effect on sustainability of the differential in salaries between local staff working for the UN system and those working for local government or organizations. There is a need for competent staff, but to pay them substantially more and then expect them to go into public service after the UN leaves can be unrealistic.

During the subsequent discussion, participants raised the role of lawyers in large-scale property restitution efforts and whether only lawyers can provide legal aid. In Kosovo the local commissioner hadn’t allowed local lawyers to represent claimants as they might leak information and influence the outcome of cases. Apparently this has changed and the commissioner is now requiring both a local and an international lawyer be involved.

Concern was expressed that internationals should be careful to ensure that the property they rent or buy is actually owned by the landlord, and that they are not occupying someone else’s property. Also international organizations often inflated property prices beyond what locals could pay, as happened in Afghanistan. In order to insure integrity of the system in Iraq the international community has repeatedly stressed the importance of following transparent and auditable procedures. If public figures, both local and international, are evicted it will send a message that no one is above the law and encourage others to leave illegally occupied properties.

Drawing on her experiences in Afghanistan, one participant said that a property law manual had been transformed into a training program on international Sharia law that has been quite successful in empowering local communities to resolve disputes.

Session Nine: Return of Residential versus Commercial Property

The Housing and Property Directorate’s mandate in Kosovo only covered residential property although commercial property is equally important. The Presenter proposed that conflict-related agricultural and commercial property disputes be addressed by a special mechanism, institution, or methodology different from the normal jurisdiction of domestic courts.

The Presenter called for a distinction between a mechanism (who is to take action) and a methodology. For example, mass claim is one type of methodology that local courts can use to quickly resolve disputes rather than go through an international court. He felt that the default should be to the domestic courts. Short-term impediments within the local judiciary are not a sufficient reason to resort to international mechanisms.

The Presenter described “a classic” conflict evolution/timeline of events from peacekeeping to development. In this timeline, the starting point is an harmonious state with normal conditions and traditional crime. At this stage the domestic authorities are in control and no assistance is needed. The next stage towards armed conflict may be such turbulence that the domestic authorities seek assistance from UN and/or other governmental agencies to regain control and confidence of the population while potential technical gaps are being addressed by the assisting agencies. If such confidence is not regained the conflict will continue escalating until open violence. A failed state will surface and necessitate subsequent international intervention. Finally a peace agreement will be achieved, which will be the starting point for a peace operation. It is then that the UN (DPKO) enters, operationalizes its mandate and defines the issues on which it will focus. The Presenter felt that the two issues of missing persons and property disputes will energize people to continue the conflict or help defuse emotions providing for reconciliation – all depending on how they are handled from the outset.

As a manager, one needs to take into account the possibility that evictions may lead to violence. Still, illegal occupations cannot be ignored. According to the Kosovo Police Service, most of the 1,000 murders that took place after the armed conflict in Kosovo involved property disputes. To convince senior international and national decision-makers to take action, one needs to counsel patience while appealing to the long-term goals.

From the outset of a post-conflict situation there will always be a mixture of reconstruction efforts, confidence-building and reconciliation, return of the displaced population, existence of a non-functioning judiciary, impunity, war economy and organized crime. Without restitution of property, it is impossible to eliminate organized crime and the war economy. Good governance, rule of law, economic development and the universal sense of fairness will all be hampered if not systematically and diligently dealt with. The experience of the Presenter indicated that political embarrassment was more often than not the reason for a change in approach. The handling of property disputes was therefore very much ad hoc.

The Presenter asserted that national ownership and sustainability are irrelevant for the selection of methodology and in fact only obscure the issue. Both international and domestic authorities may utilize the promoted methodology. Furthermore, an ad hoc mechanism is not meant to be sustained, though its decisions are, as they are meant to confirm already existing rights No new rights are established by such intervention providing the domestic authorities have a clear indisputable baseline for their work. It may remedy the situation, address individual cases through compensation or make a clean break with the past through property reforms. Such political direction should be reserved to the domestic authorities securing national ownership of the processes.

If a mass claims methodology is used, one must address several important aspects of rules of evidence, available implementation remedies, timelines and cost of the operation, coordination with other entities (the Presenter noted the lack of coordination in Kosovo), and the utility of legal aid programs and the NGOs that run them. The Presenter was critical of the way NGOs conducted their legal aid programs in the Balkans.

The successful use of mass claims methodology was believed to have positive benefits such as a swift and secure repossession of property, secure (re)registration of property titles, facilitation of land consolidation, property reform work, as well as building the capacity of public servants, and increasing the confidence of the displaced populations in governing entities. If unsuccessful, however, it could lead to mass sales or even worse, total abandonment and loss rendering the displaced population even more powerless and adding to poverty among them.

The Respondent remarked that the international community was unprepared for the millions of claims filed in the early 1990s when UN compensation started. Due to the heavy caseload, the international community attempted to implement mass action settlements. Still, it typically is not realistic to assume the international community can quickly build court systems capable of efficiently dealing with mass claims. It took the United States over 25 years to create its court system.

Next, the Respondent described the major problem of transformed commercial property during the period of displacement. Commercial property (usually agricultural) is easily transformed, with other commercial businesses being built upon it, a common phenomenon when people are displaced due to natural disasters. For example, the 2004 tsunami in the Pacific displaced a number of fishermen who, on their return, found hotels being built on their properties. Another example is the airport in Tel Aviv built on land that before 1948 belonged to Palestinians. In principle, commercial property restitution may be treated similarly to residential property restitution. In practice, however, the loss of commercial enterprises requires application of different more traditional legal standards. Businesses require more stringent proof of legal ownership.

Another factor particular to commercial property restitution is the complicated issue of valuation that varies with the use of the property. Standardized computer valuation can be used. Damage Assessment Commissions in Turkey adopted matrices to value land, livestock, and olive trees.

The extent to which commercial property is a part of property restitution is a political decision. The inclusion of commercial property in the restitution process will advance economic sustainability by empowering the displaced population and attracting foreign investment if it is considered desirable.

One participant felt Kosovo was unique in that, seven years after UNMIK’s inception, it may be more productive to deal with claims extending back before the conflict broke out. It is important to go beyond the scope of the conflict to encompass the issues that continue to fester under the surface. Sustainability is achieved if claims are adjudicated in a way that eliminates the risk of having the issue resurface. In addition, the property restitution process had been restructured in Kosovo so that immediate eviction was not forced. As such, people were less likely to sell their property, so that mass sales were rare. The presenter responded by saying that the KPA mandate is to restore the situation in Kosovo to pre-conflict status. If the domestic authorities wish to move away from this baseline, they are free to address individual cases or to undertake reforms in accordance with internationally accepted norms such as rule of law and respect for property rights.

In replying to a participant, the Respondent said there is no situation in which commercial property should be overlooked in the restitution process. The challenge is to achieve an equitable valuation and compensation. One participant urged innovation and research into methods for properly compensating individuals for lost commercial enterprises. Another noted that the commercial value of an individual’s residential property is often the most important part; in areas of Africa the value of the land is more than the house on it. The value of land changes and people do not always return to where they previously lived but often urbanize an area nearby.

A discussion ensued of what to do with property that goes through the restitution process. In Colombia, paramilitaries give up their assets that subsequently are liquidated and put into a fund used for future compensation. The management of the fund can be difficult, and it will be an interesting process to watch since state entities are not well-equipped to manage a range of commercial businesses.

Responding to a question as to why he did not favor NGOs handling legal aid, the Presenter said that in his experience the implementing NGOs often had different and maybe conflicting agendas, different approaches, and what he saw as a tendency to push their own ethical beliefs. An NGO might drop a case since it doesn’t want a conflict with the government. Expectations created among clients were not always met and NGOs did not necessarily see cases through to their conclusions thus leaving the main property mechanism such as the HPD and the KPA to take the blame. Commercial lawyers do not get involved in areas where NGOs operate, thus limiting freedom of choice for clients. An alternative to NGO-based legal aid would be to support local law schools setting up legal clinics or to allow claimants to freely select a private practitioner and limit the NGOs to procurement and payment for such services. One participant mentioned that smaller NGOs often have to abandon cases based on the difficulty of getting funding to cover the entire extent of the case. Another noted that NGOs may have a mandate for a couple of years although they don’t know how long a case will take when they register it nor whether it will extend beyond the time of their mandate. There is always the question of when an international NGO should nationalize the process.

A participant remarked that it is unrealistic to suggest setting up parallel structures in universities since in some cases students’ advice wouldn’t be accepted by the elderly, such as in Afghanistan. Another participant said NGOs are relevant in Afghanistan since, as independent observers, they are able to challenge the government. The government does not handle civil cases. These comments point up the particularities in different settings, and suggest that the Presenter’s experience with NGOs might be more relevant to the situation in Kosovo.


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