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.
The first issue that prompted a reaction from my side was the argument that property restitution in BIH was a legal transplant in the vein of the failed law and development movement. My understanding of this argument is that by promoting a property restitution scheme, the Western countries sought to bring about a transformation in the type of property tenure existing in Bosnia and Herzegovina. This criticism does not take into account that private property in the (socialist) former Yugoslavia was regulated by a set of laws which resembled very closely those of many Western countries.
In addition, the Yugoslav legal system also foresaw socially owned property, a type of tenure typical of socialist countries. Socially owned property was a concept new to most of the Western practitioners operating in BiH at the time. As a result, some interpretation was necessary to understand that socially owned property was a type of tenure that invoked the protection of Article 1 Protocol 1 of the ECHR. As a consequence socially owned properties were included amongst those subject to restitution. Indeed, this is exactly the contrary of what Prof. Ballard argues: it was a “Western” concept like the right to the enjoyment of possessions that was reinterpreted to ensure the protection of individual rights arising from a socialist type of tenure.
Finally, it should not be forgotten that the “Laws on Cessation”, the ones creating the administrative procedure for property restitution, were drafted and passed by the local parliaments in April and December 1998: in the initial phases of the process, the international community was serving more as a technical advisor rather than as a legislator. It was only later that those laws were modified by decisions passed by the international Office of the High Representative. However such modifications closed gaps in the legislation and made it more effective without altering the administrative procedure, which continued to remain rooted in the domestic system. Critiques of law and development seem ill suited to describe a property restitution process. While law and development implies a change in the type of tenure, property restitution implies a return to the status quo ante. Fundamental changes in the type of tenure, as seen in BIH with the privatization of socially owned apartments, occur only after the status quo ante has been restored.
Another problematic point with Dr. Ballard’s article is the perception that the Dayton Peace Agreement was purely the result of external influence.While the parties were coerced to the negotiating table by both the situation on the ground and 1995 NATO intervention, the solution at Dayton was nevertheless a result of a compromise that tried to find a common ground amongst all three sides.
The provisions of Annex VII of the Agreement on refugees and displaced persons reflect this arrangement. It is important to recall that the three ethnic groups fighting in BIH had different and contradicting agendas vis-à-vis Annex VII. While the Bosniak leaders, representing the majority group, were more in favor of a return of all IDPs to their pre-war homes, in an attempt to reassert control of areas they had lost during the conflict, Bosnian Serbs and Bosnian Croats sought to consolidate the areas under their control by advocating for the local integration of IDPs rather than for their return.
Given that citizens of BIH largely identified themselves with their main ethnic party at the time, the presence of an ethnic group on a specific territory resulted in the de facto control of that territory by the political party representing that ethnic group. On that part of territory, the other two ethnic groups faced discrimination and treatment as second class citizens. The approach of the international community to the issue of return was to respect the free and informed choice of displaced persons on whether to return or not, although it provided more direct support to ’minority returnees’, who faced threats, discrimination and potential violence because their houses were in territory occupied by the other ethnic groups and therefore they were more likely to face.
One more issue where more clarity would be beneficial is the relationship between property restitution and return of IDPs. From Dr. Ballard’s article one gets the impression that the two efforts coincided and that IC efforts to promote return were absorbed by the property restitution. In reality, there was a clear conceptual distinction between the two. Property restitution, as well as property reconstruction, was considered as an “essential precondition” for the return of IDPs and refugees. In other words it wasn’t automatic that by returning properties, their owners would choose to live in them.
In order to ensure return, it was necessary to make return sustainable by providing returnees with employment, health assistance, pensions and education on a non-discriminatory basis. It is my view that more could have been done in BIH in this specific field for returnees to facilitate their return. It is also clear that international officials in BIH were not always clear in distinguishing between return of properties and return of people. However, even those who didn’t choose to return could sell or exchange their restituted property and resettle in their place of displacement. In this sense, the market provided a form of compensation for those who didn’t return, rendering property restitution neutral to the individual choices of IDPs and returnees.
On the other hand, the international community in Bosnia was clearly in favor of IDP and refugee return, in an attempt to support those who chose to return and live as “minorities” amongst members of different ethnic groups and therefore potentially faced discrimination and threats. While return and property restitution overlapped in BIH, return raised much broader issues. Meanwhile, one of the reasons property restitution was successful was because it was neutral vis-à-vis the contentious and overly politicized issue of return. As explained in 2006 article by Charles Philpott, property restitution didn’t take sides on the return issue.
Whether people wanted to return or not, whether people belonged to the majority or minority ethnic group in a specific area, the mechanisms to ensure property restitution would nevertheless protect the property rights of IDPs and refugees. This was the innovative message that property restitution conveyed to all displaced persons of Bosnia and Herzegovina. Immediately after the conflict, local authorities were not neutral and clearly identified themselves with one of the ethnic groups. The message for the members of other ethnic groups was that their rights were not guaranteed and respected, regardless of the formal commitment of the authorities, which had been undertaken at Dayton. The property restitution effort helped to change this discriminatory situation and to ensure respect for the property rights for everybody, regardless of their ethnic belonging. This is how property restitution helped strengthening the rule of law.
Even if academic articles abound on Bosnia and Herzegovina, it appears very difficult to adequately convey and summarise the essence of the property restitution process. Personally I like to recall a sentence that was often repeated by IDPs and returnees, as well as officials, when discussing property and return issues: “Svaki je dobio svoj i to je u redu” (everybody got back his/hers and that’s ok). In absence of a final assessment on the level of satisfaction of the actual beneficiaries of property restitution, it is necessary to rely on empirical, anedoctal evidence as the one quoted above. In the future, the Pinheiro principles will benefit from criticism arising from their practical application. Nevertheless, it is my understanding that the Pinheiro principles should always be applied cum grano salis and adjusted to the local context. Cookie cutter approaches are not exactly a recipe for success in post conflict peace building.