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Mass Property Claim Resolution in a Post-War Society: The Commission for Real Property Claims in Bosnia and Herzegovina

Published online by Cambridge University Press:  17 January 2008

Hans Van Houtte
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Extract

The restoration of the pre-war property fights of displaced persons and refugees is critical to restore the peace.

This is particularly true for Bosnia and Herzegovina. The devastating impact of the war which ravaged Bosnia from 1992 until 1995 has left a third of the housing stock destroyed or otherwise uninhabitable. The systematic practice of ethnic cleansing forced Bosniacs, Croats and Serbs to seek shelter in areas of Bosnia and Herzegovina where their ethnic group was in the majority or to seek refuge abroad.1 More than half the 4.5 million the pre-war population of Bosnia and Herzegovina fled their homes in search of safety during the course of the war. According to recent estimates from the UN High Commissioner for Refugees, over 800,000 refugees from Bosnia and Herzegovina are still abroad today.2 Within Bosnia and Herzegovina, more than 800,000 people remain displaced from their pre-conflict homes.3

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 48 , Issue 3 , July 1999 , pp. 625 - 638
Copyright
Copyright © British Institute of International and Comparative Law 1999

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References

1. By the time the Dayton Peace Agreement was signed in Dec. 1995, more than 1 million Bosnians remained displaced within the borders of Bosnia and Herzegovina. At least 1 million more were living as refugees in some 25 other countries, primarily in the neighbouring republics of former Yugoslavia and throughout Western Europe.

2. Outside former Yugoslavia, Germany and Switzerland host the highest numbers. For regular updates of the numbers of Bosnian refugees, see http://www.unhcr.ch/world.

3. Approximately 450,000 displaced persons are in the Federation of Bosnia and Herzegovina and 366,000 in the Republika Srpska. See UNHCR Position on Categories of Persons from Bosnia and Herzegovina who are in Continued Need of International Protection, 11 June 1998.

4. General Framework Agreement for Peace in Bosnia and Herzegovina, initialled in Dayton on 21 Nov. 1995 and signed in Paris on 14 Dec. 1995 (hereafter Dayton Peace Agreement), Annex 7, Art.1, (1996) 35 I.L.M. 75, 138.Google Scholar

5. Dayton Peace Agreement, Annex 7, Art.XI.

6. The day the war started.

7. See for early analysis of the Commission van Houtte, H., “The Property Claims Commission in Bosnia and Herzegovina”, in Wellens, K. (Ed.), International Law: Theory and Practice. Essays in Honour of Eric Suy (1998), pp.549–563.Google Scholar For a more general discussion: Cox, M., “The Right to Return Home: International Intervention and Ethnic Cleansing in Bosnia and Herzegovina” (1998) 47 I.C.L.Q. 599. For more extensive and updated information on the Commission, see: http:///www.crpc.org.ba.Google Scholar

8. The following international members were appointed for a term of five years: Dr Jean-Pierre Hocké (chairman), former UN High Commissioner for Refugees (Geneva); Prof. Hans van Houtte (legal chair), University K. U. Leuven (Belgium) and Prof. Maria Rita Saulle, University La Sapienza (Rome).

9. The positions of the respective national members are: Davor Cordas, Vice-Minister for Refugees (Croat), Miroslav Gladanac, former Public Prosecutor (Serb), Jasmin Jahjaefendic, Judge and President of Property Book Court Sarajevo (Bosniac), Damir Ljubic, Federation Deputy Minister for Refugees, Displaced Persons and Social Welfare (Croat), Mirsad Milavic, Secretary General, Ministry of Refugees, Displaced Persons (Bosniac) and Jovo Miskin, former Director of the Office of Property Registration (Serb).

10. Annex 7, Art.IX, para.3.

11. Instead, two working groups have been established: one concentrates on legal questions, the other deals with operational issues.

12. However, decisions can be taken by simple majority. Where there is no majority, the chairman's vote is decisive. For substantial matters the majority should also include the votes of two international members. General regulations, regulations of proceedings and criteria for the settlement of individual claims, by-laws of the Commission, administration and organisation of work, criteria for valuation of properties, are considered substantial matters.

13. I.e. Banja Luka, Brcko, Lukavica, Mostar, Sarajevo and Tuzla. Moreover, offices in Bihac and Vitez are planned.

14. I.e. in Croatia, present Yugoslavia, Montenegro, Denmark, Germany, the Netherlands, Norway and Sweden.

15. The privileges and immunities granted to international and their families under Annex 7, Art.VIII, para.3, were extended to international staff and their families under the Headquarters Agreement of 4 Sept. 1996, Art.1, para.3.

16. Headquarters Agreement, Art.1, para.3.

17. Idem, Art.2, para.2.

18. This is even more so in the specific case of the federal State of Bosnia and Herzegovina, where property matters are within the competence of the constituent entities and not of the federal authorities.

19. Although the Federation and the Republika Srpska became mere “composing entities” of the Republic, they nevertheless possessed an international personality when the Dayton Agreements were signed. See e.g. Gaeta, P., “The Dayton Agreements and International Law” (1976) 7 E.J.I.L. 147, 158–160.Google Scholar

20. Dayton Peace Agreement, Art.VI.

21. See e.g. H. Schermers, International Institutional Law (1995), §45.

22. Headquarters Agreement of 4 Sept. 1996, Art.1, para.1. This Agreement was signed only by the Republic of Bosnia and Herzegovina and not by the entities. However, under the Dayton Agreements and also under the Constitution, both entities are bound by agreements concluded by the Republic. It was unnecessary and politically unacceptable to list the entities as parties to the Agreement.

23. In the early phases of its operations, the Commission has deemed it useful to rely on the institutional infrastructure of the International Organisation for Migration (IOM) for help in the administration of its finances. The Commission, being a small operation with limited manpower, preferred to focus on its specific tasks while financial and budgetary matters were passed to the IOM. Since Jan. 1998, the Commission itself has taken over that responsibility.

24. See Adam, H. T., Les organismes internationaux spécialisés, Contribution à la théorie générale des établissements publics internationaux (1992).Google ScholarThe ECJ has e.g. recognised the “European Laying-up Fund for Inland Waterway Vessels” as a public international institution Opinion 1/76 of 26 Apr. 1977 [1977] E.C.R. 741, 755et seq.).Google Scholar

25. Adam, idem, p.3.

26. Contributions are made by the EU, the US and, among others, Italy, the Netherlands Canada, Switzerland, Sweden, Germany, Norway, Belgium, Austria, Ireland and Luxembourg.

27. At this stage, it is unclear whether the other States will continue to finance the Commission after the initial five-year period.

28. Annex 7, Art.X, para.5.

29. Annex 10 and S.C. Res.1031 of 15 Dec. 1995.

30. As claimants are able to submit a claim regarding the property issue before both the Commission and the Human Rights Chamber, those two bodies should avoid rendering a decision in the same case. The Dayton Agreements state that the Chamber should not address any claim which is substantially the same as a matter which has already been the subject of another settlement procedure (Annex 6, Art. VIII). A permanent exchange of information about cases, which have been submitted respectively to the Commission and the office of the Ombudsman or Commission on Human Rights, is therefore necessary. The possibility has been considered that the Commission on Human Rights could request the Commission to issue opinions on property matter the subject of proceedings before the Commission on Human Rights. However, no specific mechanism for such a “preliminary ruling” has so far been elaborated.

31. It has been suggested that there could be a right of appeal against Commission decisions before the Annex 6 institutions. This possibility of judicial review seems to be contrary to the principle that Commission decisions are final (Annex 7, Art.XII).

32. Initially, the risk of confusion with the UNHCR was substantial as in the Dayton Agreements the Commission was called merely the “Commission for Displaced Persons and Refugees”. In order to make it clear that the Commission did not aim to be active on refugee problems in general, during its first session it changed its name to the “Commission for Real Property Claims of Displaced Persons and Refugees”.

33. 53% of all claimed properties are located in the Federation territory; 47% in the Republika Srpska.

34. It is politically relevant that approximately 80% of the Bosniac claims, 50% of the Croat claims and 10% of the Serb claims concern the option to return.

35. See Annex 7, Art.XII, para.4.

36. Option two raises, moreover, a more fundamental issue. Indeed, the possibility of receiving compensation might induce refugees not to return to their place of origin but to remain abroad or to stay in a territory controlled by their ethnic group. Thus compensation could negatively affect the return of refugees and restoration of a multi-ethnic society. In Art.1 of Annex 7 compensation was envisaged only when the owner could not return to his or her property. However, it was felt that the full respect of property rights entails the free choice between return or compensation. Therefore, under Art.XII, para 5 the owner had the right to seek compensation “in lieu of return”.

37. Art.XII, para.6.

38. Annex 7, Art.XII, para.3.

39. Occupancy rights were subject to substantial regulation before the war, in particular under the Law on Housing Relations.

40. The unrealistic nature of the deadline can be illustrated by the numbers for Sarajevo: of the 13,500 occupancy right holders who left Sarajevo, less then 200 returned within the deadline.

41. See for the Federation: the Law on the Cessation of the Application of the Law on Temporarily Abandoned Real Property owned by Citizens and the Law on Cessation of the Application of the Law on Abandoned Apartments, Official Gazette of the Federation of Bosnia and Herzegovina 11/98, 3 Apr. 1998. See for the Republika Srpska: the Law on Cessation of Application of the Law on the Use of Abandoned Property, voted by the National Assembly of Republika Srpska on 2 Dec. 1998.

42. E.g. Art.14 of both the Law on the Cessation of the Application of the Law on Temporarily Abandoned Real Property Owned by Citizens and the Law on the Cessation of the Application of the Law on Abandoned Apartments.

43. Federation Law on Cessation of Application of the Law on Abandoned Apartments, Art.3(6); Republika Srpska Law on Cessation of Application of the Law on the Use of Abandoned Property, Art.17

44. These notifications do not constitute final Commission decisions; they are mere checks against the pre-war cadaster records and the 1991 census.

45. Art.XII, para.1 of Annex 7 specifies that the Commission entitled to have access to all and any property records in Bosnia and Herzegovina and to all and any real property located in Bosnia and Herzegovina for purposes of inspection, evaluation and assessment related to the consideration of a claim.

46. Annex 7, Art.XII, para.7.