by Guido van Heugten
Guido van Heugten graduated from the ‘NOHA’ masters program in International Humanitarian Action at Uppsala University). He wrote his thesis on ‘Post-Conflict Property Restitution in Kosovo’.
Even over a decade after the violent conflict of 1999, Kosovo is often still referred to as a ‘hot potato’ that has been passed on from the UN to the EU, which is currently desperately searching for ways to find a resolution for the dispute between the governments in Belgrade and Pristina. The recently elected Serbian president Tomislav Nikolic has stated that Kosovo Serbs are currently living under threat of genocide and that he would not rule out a partition between ethnic Serb and Albanian regions. UN Secretary General Ban Ki-Moon, on a visit to Kosovo, tried to focus more on common challenges and opportunities and made another attempt to stress the importance of dialogue in order to find resolution to the regions issues.
The population of Kosovo is indeed still much divided between the lines of ethnicity and identity, fuelling a volatile security situation, especially in the Northern provinces surrounding the divided town of Mitrovica. Together with resolution of the political problems relating to Kosovo’s continuing status as a UN protectorate, it is crucial that serious efforts are being made by all stakeholders to finish the property restitution process and ensure respect for housing, land and property (HLP) rights in the context of conflict resolution efforts in the region.
Due to the 1990s trends toward increasing displacement and internal conflicts and the decreasing will of Western states to provide asylum, voluntary return (as opposed to resettlement) became the preferred policy when dealing with displaced populations in post-conflict contexts. This is also expressed by the development of international policy around that time, culminating in the adoption of the ‘Pinheiro Principles’ on Housing and Property Restitution for Refugees and Displaced Persons in 2005.
The 1998-99 conflict in Kosovo caused immense damage to property, which the Office of the High Commissioner for Human Rights determined was not solely an act of vandalism, but an attempt at wiping out signs of the presence of entire populations, including their national and cultural identity. In most UN peacekeeping missions, HLP rights usually do not play a very central role, even though land and property issues are often an underlying cause of conflict. Kosovo however, has been one of the few places where the UN has decided to give property restitution an important role in the peace-building process.
The Housing and Property Directorate (HPD) and Housing and Property Claims Commission (HPCC), which started operating end 1999, had the jurisdiction to adjudicate cases of immovable property associated with a residence. Privately owned agricultural land and commercial property was left outside of their mandate and they did not have the authority to decide on the ownership of one’s property (only possession). The HPD adjudicated a total of 29.000 claims. Apart from 143 conflicting “A” and “C” claims, they are all implemented. As a result, HPD and HPCC are often seen as a success in international circles.
In 2005, even though the property restitution process had already started several years previously, illegal occupation of agricultural and commercial property was still hampering the return of many displaced people. Because the local court system did not have the capacity to deal with these cases, the HPD/HPCC was succeeded by the Kosovo Property Agency (KPA) and Kosovo Property Claims Commission under UNMIK Regulation 2006/10. In contrast to its predecessor, the KPA/KPCC is able to adjudicate claims regarding agricultural and commercial property. The KPA is placed outside the auspices of the UN Mission in Kosovo (UNMIK) and can establish ownership rights for the claimant. The latter is sometimes controversial, because in cases of conflicting A & C claims the previous possessor (A claimant) was often given right of ownership and the previous owner (C claimant) was entitled to compensation.
One of the biggest challenges at this moment is the interaction with the local court system. Around 800-900 cases have been referred from KPA to local courts and are still pending there. In addition, claims that were received after the KPA deadline of 3 December 2007 are also added to the court docket, including some 18,000 claims requesting compensation for damages to property caused by the 1999 NATO bombing and the effects of riots targeting Kosovo Serbs in 2004. All these cases place a huge burden on the local judiciary, which is already swamped and lacks the organizational capacity to process these cases in the near future.
The Organization for Security and Cooperation in Europe (OSCE) also reported that local judges often fail to maintain a neutral stance in certain cases. In addition, the problem of dual sovereignty between Kosovo and Serbian courts is still an issue in Northern Kosovo. However, closing down the Serbian courts in the North would be risky, because its judgments are accepted by the local population; closure could cause much frustration and increase instability.
Next to some of the more obvious challenges related to removal and destruction of cadastral records, lack of documentation of the displaced and the continuous reoccupation of property, there are also some hidden challenges that still need to be taken into consideration. For example, one very serious challenge is the protection of gender equality. In Kosovo traditional values still prevent women from accessing their property rights and should therefore be protected through gender-sensitive strategy and policy. Another example is the registration of confirmed property titles for the minority population living outside of Kosovo. The latter are often not in the position to register their title, leaving room for fraudulent registration practices and infringing their right to property.
These and other challenges are common to other property restitution contexts outside of Kosovo, which stresses the importance of learning from previous mistakes and listening to critical remarks that are made. Can property restitution still be considered as desirable? Does it really facilitate the process of voluntary repatriation and does it substantially improve protection of minority rights?
When looking at Bosnia and Herzegovina, repossession of property was a prerequisite for restoring property that was lost during time of conflict. In Kosovo, the system allowed displaced populations to claim back their property without forcing them to go back to their former homes. This could be one of the reasons minority return has been low and over 200,000 people are still living displaced in Serbia. Also the willingness to return is decreasing, especially for Roma populations, who often face serious human rights issues when going back to Kosovo. Because it has already taken over a decade to solve these displacement issues, governments in Belgrade and Pristina are looking at alternatives to find a more durable solution for these large groups of people, including resettlement and local integration.
These issues raise an inference that the focus of international human rights instruments and standards, such as the (globally applicable) Pinheiro principles, should be revised in order to include other remedies. These could include monetary compensation and allowing for other options than merely returning to one’s pre-war home. Since it is questionable that the Kosovo-Serb population living in Serbia (proper) would return to Kosovo, where jobs are few, security is low and basic services are often lacking, this would provide a step forward in the peace-building process in Kosovo.
It could very well be such a development would set the stage for revenge and could make reconciliation even more unlikely. But when talking to young Kosovo-Serbs in enclaves near Pristina, they all said they felt their futures were in either Northern Mitrovica or in Serbia. This means that continuous efforts should be made to strengthen the protection of human rights and the rule of law in Kosovo, so that all communities can enjoy equal rights and that its cultural identity and heritage will be preserved for future generations.
In literature, scholars often call for a renewed Humanitarian HLP Platform, due to the fact that many questions still remain unanswered and because there is still plenty of room for improvement in the quality of international assistance given in post-conflict societies. Some even argue for a lead agency within the UN System. I too hope that these rights will be more prominently addressed in peace-building efforts, to finally break the trend of yearly increasing numbers of displaced populations and to break with the normality of protracted displacement. Yes, I am still an idealist. Let’s hope I can keep it that way.
 UN High Commissioner for Human Rights. September 2009. Report for the High Commissioner for Human Rights on the Situation of Human Rights in Kosovo, Federal Republic of Yugoslavia. E/CN.4/2000/10, p. 14
 SC Resolution 1244(1999) explicitly stated it was determined to “provide for the safe and free return of all refugees and displaced persons to their homes”
 Category A Claims were designed for people who lost their property due to discriminatory legislation. Category C Claims, the vast majority of all claims, were made for those who had property rights to residential property before 23 March 1999 and who did not dispose of their property voluntarily. See UNMIK Resolution 2000/60
 OSCE. June 2011. Challenges in the Resolution of Conflict-Related Property Claims in Kosovo. Pristina, Kosovo