by Massimo Moratti
NB: This posting is written in response to Professor Megan J. Ballard‘s 2010 article in the Berkeley Journal of International Law entitled “Post Conflict Property Restitution: Flawed Legal and Theoretical Foundations” (available here).
It is always with interest that Human Rights practitioners read what academic scholars write about their work. It is one of the instances were practice meets theory to exchange ideas, confirm theories and validate practices. It is in this spirit that I read the recent article by Dr. Megan Ballard on the potential flaws of the Pinheiro Principles and property restitution in Bosnia and Herzegovina (BiH), an issue on which I extensively worked during my over 10 years tenure there.
Professor Ballard’s article prompts numerous reactions and comments. My first reaction was wondering “how many evictions did Dr. Ballard attend?” In the jargon of BIH property restitution practitioners, attending an eviction and the attendant reinstatement of a successful property claimant was the closest form of proximity one could have with the property restitution process. The eviction, often forcible, of the temporary occupant was the culminating moment when all the tensions of the process rose to the surface and when it was possible to fully understand the delicacy of the event.
Evictions presented a potential for violence, given that temporary occupants, often supported by the local ethnic majority political establishment, would mobilize all possible resources to avoid the reinstatement of the pre-war occupant. The pre-war occupant in most cases had been forcibly expelled during the conflict by hostile military or paramilitary groups. Housing officials and local police were trapped between the classical rock and hard place: if they were to postpone the eviction to give in to the pressure of the temporary occupants and of the local political establishment, they were exposed to criticism by international monitors as well as disciplinary sanctions. If instead they conducted the enforcement in accordance with the law, as in most of cases eventually happened, they were considered “traitors” by their community and by the members of their ethnic group.
This rather lengthy introduction may help to frame the issue within terms that are significantly different from the ones emerging from Professor Ballard’s article. Dr. Ballard addresses a number of criticisms to the Pinheiro Principles, mostly relying on a debatable perception of the processes and dynamics that occurred in Bosnia and Herzegovina. There are significant discrepancies between the description of the process in Dr. Ballard’s article and the actual way it was perceived by monitors in the field.