Property Restitution and Rule of Law in Peacebuilding: Examining Applicability of the Bosnian Model Mari Katayanagi, Ph.D. Former Senior Research Fellow JICA Research Institute

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

Asymmetric Political Structure of post-Dayton Bosnia and Herzegovina (BiH) BiH Republika Srpska (RS) municipalities Federation of Bosnia and Herzegovina (FBiH) 10 Cantons municipalities Brcko District 3

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History Property was an important target in the history of BiH at the time of armed conflicts. Property allocation was carried out with humanitarian justification.  Socialist Federal Republic of Yugoslavia (SFRY) - Occupancy rights: rights to live in a socially-owned property 5

General Framework Agreement for Peace (Dayton Peace Agreement) ‘All refugees and displaced persons have the right freely to return to their homes of origin.’ (Art. II(5) of Annex 4 and Art. I(1) of Annex 7) `Right to have restored to them property of which they were deprived in the course of hostilities since 1991’ ‘The early return of refugees and displaced persons is an important objective of the settlement of the conflict in Bosnia and Herzegovina.’ 6

Post-war mono-ethnic population structure 1.2 million refugees, 1.0 million IDPs (ethnic cleansing) De facto partition of the country into three areas controlled by each ethnic group, respectively Policies of nationalist political leaders Block return Encourage IDPs to stay Allocate public land to IDPs 7

Restitution process 8

Housing-related laws and regulations Abolished laws on abandoned properties April Introduced a unified rule: primacy of rights of pre-war owners or occupancy right holders Oct – Harmonized administrative procedures for property repossession Dec – Detailed procedure including the principle of chronological processing of claims  Bonn Powers of the High Representative 9

Dispute Resolution Mechanism Commission for Real Property Claims of Refugees and Displaced Persons (CRPC)  Receive property claims  Verify ownership  Issue certificate of ownership : Processed 310,000 claims 10 Members 3 international 4 from the Federation 2 from the RS

Property Law Implementation Plan By Office of the High Representative, UNHCR, OSCE, UN International Police Task Force and CRPC  Well-organized field monitoring structure  Monthly PLIP statistics  Eviction monitoring by International Police Task Force (IPTF), UNMIBH 11

Information campaign “Respect” campaign Respect for the right to property and respect for right to return – respect for human rights and rule of law are fundamental principles in any democracy “It’s enough” campaign Highlighting frustration of claimants, occupants, and all those involved in the repossession process 12

Removal of obstructive officials Nov – 22 officials (mainly politicians) Sep – 15 officials (mostly housing officials) Bonn powers → showing determination of the international community 13

JICA-RI’s original survey in Sarajevo Canton Land use 63.8%: public property 34.7%: private property 0.1%: religious community’s property 1.4%: no ownership data Plot size 14

Rights-based approach & rule of law Rule of law requirements Supremacy of law Equality before the law Accountability to the law Fairness in the application of the law Separation of powers Participation in decision-making Legal certainty Avoidance of arbitrariness Procedural and legal transparency (UN Doc. S/2004/616) 15

Applicability of Bosnian Model Peculiar conditions of BiH Relatively clearly determined property rights Limited period of displacement A strong presence of international community Yet there are lessons to be learnt … 16

Conclusion  Importance of recognizing the original property rights equally  Effectiveness of rule of law approach Rule of law is complex – how can we build it without enforcement powers? 17

Thank you for your attention. 18