by Milica Matijevic and Massimo Moratti
It is easy to guess that, as in most legal aid programmes implemented in post-conflict settings, the majority of cases handled by the EU funded legal aid project “Further support to refugees and IDPs in Serbia” concern repossession of property owned by IDPs and refugees. These are mostly cases of property restitution and/or compensation for property that can’t be repossessed. This topic has been the focus of a newly released report dealing with these aspects of the right to property restitution and/or compensation.
When dealing with competent officials in the field, be they international or domestic, we often hear the statement that the case of Kosovo is “specific” or “particularly complicated”. For those dealing with housing, land and property rights, this should be nothing new. Every displacement crisis has its own specific aspects and by their own inherent nature property cases are very often “particularly complicated”. Unfortunately, the rationale behind the explanation of this kind is that international human rights standards shouldn’t be applied, and possibly the status quo shouldn’t be touched.
In its most recent report the Project assesses a number of questions “specific” to the context of Kosovo and, in fact, shows how international standards are applicable to the Kosovo context. Although it is not always clear who the duty bearers are, it is clear that IDPs and those forced from their homes by the conflict are the right holders and that the difficulty in identifying the duty bearer renders the rights of IDPs meaningless.
The report proceeds from the general rule that internally displaced persons enjoy the same set of rights as any other citizen of the state within which they reside. When applied to the situation of an internally displaced person from Kosovo this would mean that they can assert their property rights on the same basis as any other resident of Kosovo.
Notwithstanding the fact that the applicable legal framework contains strong guarantees of the right to property, including the right to be compensated for unlawful damaging or destruction of one’s property, the position of IDPs is often not adequately taken into account by the relevant national and international authorities and their claims remain largely unattended.
The report deals with a specific caseload, the famous “18,000 compensation claims”. These are claims that were brought by IDPs from Kosovo against the UN Mission in Kosovo (UNMIK) and the Provisional Institutions of Self-Government in Kosovo for compensation of damages to private property that occurred as a result of the 1999 NATO air campaign and the March 2004 riots. Those claims were for long time “frozen” by a request of UNMIK, which later on was found in violation of the right to a fair trial by the UNMIK Human Rights Advisory Panel, in Opinions released on February 23, 2011 (Esat Berisa Case no. 27/08 and others v UNMIK) and March 24, 2010 (Petko Milogoric, Case no. 38/08 and others v UNMIK)
Only recently have courts started processing those claims, only to reject them virtually en masse on the grounds that UNMIK and NATO forces enjoy diplomatic immunity. The report identifies the legal provisions applicable to these cases under International Human Rights Law as well as International Humanitarian Law (which in the view of many was applicable to Kosovo). It also points out clearly that the question of the legal standing of a claim can be easily confused with the question of who is to be held responsible for property restitution and bear the costs of it.
In Kosovo, where the UN mission exercised quasi-sovereign powers for a number of years following the conflict, the question of whether persons whose property was damaged or destroyed have right to restitution or compensation is often obfuscated by the question of who should be held responsible for providing it. While international law largely confirms IDPs’ right to property restitution and compensation, what remains unclear is the duty bearer of the obligation to compensate IDPs.
To date, the 18,000 claims remain unresolved and are often portrayed as a burden on Kosovo’s judiciary that should be phased out as soon as possible. It appears that the rights of those who initially filed the claims are not prioritized. It is also worrying that courts in Kosovo have started dismissing these claims while at the same time charging significant sums to impoverished IDP claimants for court expenses.. In this way, IDPs have not only their claims denied but are also encumbered with further costs for having tried to exercise their rights.
Finally, the report also deals with the issue of housing reconstruction and whether this can qualify as a form of compensation or property restitution for IDPs. The answer is affirmative, but only under certain conditions stipulated by human rights law. By contrast, under the prevailing circumstances, reconstruction agencies are walking on thin ice: certain aspects of reconstruction programs, like tripartite agreements and requirements to reoccupy reconstructed properties immediately can be seen as stringent conditions placed upon returnees that could amount to indirect discrimination. As a result, the report recommends making sure that return and reconstruction programs include provisions that are compliant with International Human Rights Law.