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News from Bosnia – ECtHR Dokic decision and guest blogger Massimo Moratti’s view from the field

It can be hard to get around Bosnia in looking at post-conflict housing, land and property (HLP) issues. For better or for worse, Bosnia set the post-Cold War paradigm of mass administrative restitution that laid the ground for the 2006 Pinheiro Principles, and which has since been roundly criticized as raising false expectations in settings with weaker national capacities, vaguer international commitments and less tidy, uniform and (relatively) equitable land and property relations. However, despite the importance of looking beyond the Balkans in developing a clear-eyed view of the HLP challenges that lurk in such heterogeneous settings as Sudan, Afghanistan and Colombia, yet Bosnia refuses to be silent.

Late last week, the Fourth Section of the European Court of Human Rights released its judgment in the Case of Dokic v. Bosnia and Herzegovina (see the press release here and the full text of the decision here). This decision awards compensation for pecuniary and non-pecuniary damages to a military school lecturer who had begun the process of privatizing his socially-owned flat prior to the conflict in Bosnia and was subsequently denied a remedy for the loss of his rights due to a quirk in the restitution laws of one of Bosnia’s two post-war federal “entities” that created special rules for “military apartments” from the pre-war housing fund of the Yugoslav National Army (for a more detailed description of this controversy see section VI.D of a 2005 article I wrote on Bosnian restitution).

In issuing this decision, the Court ties up one of the many legal loose ends that continue to haunt the former Yugoslavia a decade after the fighting stopped. The judgment also further rounds out the restitution and compensation-related jurisprudence of the Court under Article 1 of the first Protocol to the European Convention on Human Rights and – upon becoming final – is likely to have significant political and financial implications in Bosnia and possibly the wider region. Among many of its interesting aspects (to be discussed in more detail in a subsequent post), the judgment also cites not only the Pinheiro Principles but also the more recent Resolution 1708 (2010) of the Parliamentary Assembly of the Council of Europe (see TN posting here) as ‘relevant international documents’.

The Dokic decision carries with it a number of personal associations for me. At the end of my time with the OSCE in Bosnia, I drafted and presented an amicus curiae brief to the Bosnian Constitutional Court that asserted one of the three arguments – failure to demonstrate use of confiscated military apartments for the asserted humanitarian aims – that the ECtHR relies on in finding a violation (see para. 61). And more recently, I had the privilege of assisting the CoE PACE Rapporteur, Jorgen Poulsen, in developing a report that helped lead to the adoption of Resolution 1708.

In this context, it seems fitting that the Dokic decision was nearly simultaneously brought to my attention today by former Bosnia colleagues Massimo Moratti and Javier Leon Diaz, and that the former will be guest-blogging later this week on his view of the longer term repercussions of restitution in Bosnia. Massimo was one of the architects of Bosnian restitution, with  experience opening the process up in Prijedor, the site of notorious ethnic cleansing during the war, as well as managing monitoring and policy formulation at both the regional and national level with the OSCE. Having gotten a bit of perspective as an international consultant and more recently returned to work again in Bosnia, Massimo’s forthcoming observations provide a strong and locally grounded complementary note to the legal conclusions in the Dokic case.

Upcoming guest-postings – Chris Huggins on the ‘Global Land Rush’

I am very happy to announce that Chris Huggins, who previously wrote here on the implications of the AfCHPR ‘Endorois decision’ for East Africa, will shortly be guest-posting again in TN. This time, he will be looking at development and rights-based responses to the ‘Global Land Rush’ (which has also been described less flatteringly as a ‘Land Grab’ and more cautiously in terms of new ‘commercial pressures on agricultural land’). However, one describes it, the land rush appears to present some fairly serious challenges, both to an emerging normative conception of land relations in which settled use of untitled land gives rise to rights, and, at a more practical level, to the need to ensure that foreign investment results in equitable local development in a time of fluctuating food prices, climate change, and increasing food insecurity in many parts of the world.

It is Chris and my sincere hope that it may be possible to trigger a non-strident but substantive discussion of this important issue on TN. However, while readership remains high, we haven’t succeeded in generating a great deal of debate in the wake of past postings (sadly, the spammers still have the upper hand). I would therefore like to invite readers who are interested in the issue to consider responding to Chris’ introductory piece, ideally in the form of a guest posting. Please contact me directly if you are interested and if we can get enough responses going, I will aim to move the discussion to a dedicated page on this blog.

In the meantime, I remain interested in receiving proposals related to guest-posting on other land and property related topics. I am pleased to say that a number of such postings are in the works, ranging from reflections on the long-term effects of post-conflict restitution in Bosnia to feudalism in Central Asia and perfidy in Cambodia, but more reflections on other topics in other parts of the world are always welcome!

Back from the property frontlines…

A quick administrative note to apologize for the recent gap in postings – in addition to a heavy workload, my family recently found itself faced with the need to vacate a sublet apartment on fairly short notice and we launched ourselves into the awesomely expensive and numbingly over-regulated Stockholm real estate market. I could start a whole blog on that, but suspect that interest may be limited! Suffice it to say that from now on, my philosophical ramblings on the nature of property rights will be infused with the elemental urgency of one who has just taken on a very large mortgage in a foreign currency with far too many zeros for anybody’s good.

Also, in followup to the recent guest posting by Alexandre Corriveau-Bourque on customary institutions and land conflict in Liberia, I would like to point out a recent article in IRIN, brought to my attention by Laura Cunial. The article notes that tensions over land in Liberia have not abated, with about 250 deaths since the end of the conflict attributed to disputes over land and property. It also points out that mediation and customary adjudication, for all the flaws identified by Alexandre in his report and posting, remain the only viable mechanism for the time being to containing such conflicts on the ground.

Release of NRC report on land disputes in Liberia – and guest blog by author Alexandre Corriveau-Bourque

TN readers are encouraged to check the Norwegian Refugee Council website starting tomorrow (Wednesday, 28 April) in order to access a new report on post-conflict land disputes in the context of legal pluralism in Liberia. The report, entitled ‘Confusions’ and Palava: The Logic of Land Encroachment in Lofa County, Liberia’ promises to make for some interesting reading:

As Liberia recovers from nearly a decade and a half of civil war, the largest obstacle to long-term stability remains the divisive issue of land. Using Lofa County as a case study, this study explores the conditions that produce land conflict and the mechanisms used to resolve them. Multiple waves of displacement, return and (re)settlement have significantly altered the many institutions that regulated access to land and land-based resources prior to the war. This has resulted in a range of tenure systems that are struggling to (re)establish themselves at a variety of scales. The very systems at play are undergoing intensive renegotiation from both internal and external forces.

This study argues that the competing discourses employed by the various systems of authority in Lofa County to legitimise/justify claims are creating opportunities for land encroachment, which is significantly reducing the security of tenure in this area. The perception of dispossession can lead to ‘confusions’ or palava, stages of a dispute that are generally being channeled into informal dispute resolution systems rather than formal mechanisms. These informal mechanisms are shaped by imperatives for ‘peace’ and ‘development,’ which increase the likelihood that negotiations will have a ‘satisfactory’ outcome for both parties, providing few disincentives for others to encroach.

The weaknesses of formal, customary and informal institutions limits what punitive measures can be brought against those who violate the norms that would guarantee secure tenure, thus helping to perpetuate the cycle of encroachment.

The report was written by Alexandre Corriveau-Bourque, who is also a contributor to a volume on post-conflict land management I’m currently working on. I’m very pleased to announce that Alexandre will also be writing an exclusive guest-posting for TN later this week introducing some of the key issues addressed in the report. Watch this space!

Vulcano refugee sur place…

Just a quick note to say that an unplanned three day sojourn with old friends in Zurich has distracted me from the demands of blogging and pretty much everything else. It has been a pretty surreal experience to be caught up in the temporary (?) collapse of European air travel. Nothing seems very different than before once you get settled down somewhere, but international transport hubs have been transformed into medieaval judgment day scenes of despair and resignation. Last week, I had the pleasure of lecturing in the 54th Refugee Law Course at the IIHL in San Remo, but my Saturday morning flight back to Stockholm was DOA and I ended up taking the train to Milan, where the scene was like the evacuation of the US Embassy in Saigon. A friend in Zurich suggested taking a humble commuter train from a grubby local station that just happened to terminate beyond the Swiss border in Chiasso, and two hours later, I found myself on a sparsely peopled platform absorbing the clean alpine breezes and the almost hallucinogenic sight of an entirely empty Swiss commuter train chugging in to sweep me away to Zurich – where the next available spot in a northbound international train was 72 hours off and involves a 26 hour ride to get me home. Say what you want about the Icelandic ash for cash policy, it has certainly laid bare the conveniences we take for granted and the hubris that requires.

TN at two months

I thought I might take the occasion of TN turning two months to do a short state of the blog report. Its been a pretty lively time with forty posts to date. That’s probably a bit of a fast pace, and rest assured that any spelling or grammatical howlers you’ve seen probably result from the fact that I tend to write between the kids’ bedtime and a bit past my own.

As readers will have noted, an uptick in my consultancy work this week has thrown me a bit off my game, and I’ll probably have to keep my aims a bit modest this Spring as I’ve got some travel coming up. If you would like to wait and be informed when new posts come along, feel free to sign up for the email notification service (in the right column towards the top).

All that said, I’m happy to report that hits have been high. Totals were 566 in February and 734 in March, with over 125 viewers so far this month. However, I would still like to stir up a bit more in the way of comments. Maybe I’m not being provocative enough (they beat that out of you in law school), maybe I’m not being coherent (that suffers too), or maybe the procedures for leaving comments are a bit too daunting on this host site. But if you like what I’m writing, if you hate it or if you have anything to add, please don’t hesitate.

The same goes for guest-posting. I know there are a lot of you out there with lots of exclusive insights and little time – and I would like to issue you a standing invitation to use this blog as a way to get your message out quickly without having to fuss with too much formatting.

In terms of content, I want to first thank the three great guest bloggers I’ve had to date – Chris Huggins on indigenous groups’ land claims in the Great Lakes region, Peter van der Auweraert on new legislative developments in Iraqi restitution, and Barbara McCallin on land reform and the claims of displaced persons in Cote d’Ivoire. All three postings have gotten great reviews and drawn a disproportionately high number of hits.

Other content has focused on land and property issues in various countries, including Burma, Chile, Haiti, Iraq, Sudan, the USA, and – in an admittedly only distantly related to property issues vein – Serbia.  I’ve also posted some more general fulminations on human rights, disaster risk reduction, durable solutions to displacement, the role of peacekeepers in resolving post-conflict property disputes, and rights-based approaches to urban evictions. Other postings have provided description and analysis of new standards and jurisprudence in the area, including new European standards on restitution, the African Commission on Human and People’s Rights’ decision in the ‘Endorois case’, and a new ‘Framework for Durable Solutions’ for internally displaced persons (IDPs).

Its been a lot of fun so far and I think its safe to say that this blog has legs. So, thanks to all of you for checking it out and particular thanks to those of you who have gotten back to me, both in comments and by email, and let me know that you have enjoyed the content. Having a soapbox is nice, but making it useful is what I aspire to.

Followup on Serbian Srebrenica condemnation

by Rhodri C. Williams

First of all, hope all my readers in countries that go in for Easter break (the otherwise sober Scandinavians are rather extravagant on this point) had a nice one. With the two month anniversary of this little blog coming up on Thursday, I was really pleased to see that hits remained relatively steady in my absence.

Meanwhile, in following up on my last post from last week, I thought it worth noting that the English translation of the Serbian Parliament’s statement condemning the 1995 Srebrenica massacre in neighboring Bosnia can now be downloaded in full (directly from here or if you prefer a bit of context, from the Parliament’s website, by scrolling down the right-hand column).

Beyond the general significance and the shortcomings of the resolution, discussed last week, the full text provides a few more specific points of interest. One is the preamble’s explicit recognition of Bosnia’s sovereignty and territorial integrity:

…Aimed at ensuring lasting peace and stability in the Western Balkans region, as well as further improvement of friendly relations among the states of the former Yugoslavia based on the respect for international law and territorial integrity and sovereignty of all member states of the United Nations, including Bosnia and Herzegovina…

While the limitation to UN Member States is a clear signal that Kosovo is not yet invited to bask in the warmth of friendly relations, this statement may in fact be the most significant passage of the text for Bosnia, in light of its protracted ethno-political stalemate. As noted in an article in this week’s Economist:

The underlying trends are good. As [Serbian Foreign Minister] Jeremic points out, virtually unnoticed in the uproar over the Srebrenica apology was a Serbian commitment in the resolution to Bosnia’s territorial integrity …. This comes at a time when Milorad Dodik, prime minister of the Republika Srpska, the Serb part of Bosnia, is talking openly about secession. “There can be no serious threat to Bosnia’s integrity as long as Serbia supports it,” says Mr Jeremic.

For those of us who have nervously watched debates over partition lurch through the post-Yugoslav political discourse during the past decade, the specific significance of this statement seems clear. Barring a fairly dramatic change of policy, this short paragraph has driven a stake into the heart of proposals such as that by which Serbia would annex Bosnia’s Serb majority areas as compensation for renouncing claims to Albanian-majority areas of Kosovo. Which, all in all, is probably a rather good thing.

Meanwhile, the third operative paragraph of the Resolution is also interesting in that it implies either a surprisingly subversive or a surprisingly clueless approach to Bosnia’s ethnic politics. The paragraph reads as follows:

The National Assembly of the Republic of Serbia calls upon all the former conflicting sides in Bosnia and Herzegovina, as well as in the other states of the former Yugoslavia, to continue the process of reconciliation and strengthening of the conditions for common life based on national equality and full observance of human and minority rights and freedoms so that the committed crimes would never be repeated.

The curious aspect of this text is the fact that it mentions ‘national equality’ and ‘minority rights’ in the same breath, as though there were no tension between the two concepts. As observers of Bosnia, in particular, will note, the most numerically significant national minorities in Bosnia – the Serbs and the Croats – have vigorously resisted being labeled as such. These objections arise out of concern that minority status would somehow water down – rather than complement – the strict equality they and the Muslim Bosniaks – who comprise a plurality of the population – enjoy as the three ‘constituent peoples’ recognized under the 1995 Constitution incorporated in the Dayton Accords.

From this perspective, it could not have pleased nationalist Serbs in Bosnia that the text mentioned minority rights at all. The inclusion of this language may again have been indicative of a Kosovo-related subtext (given Serbian offers to recognize Albanian minority rights in exchange for retaining sovereignty – and criticism of the Kosovar Albanian majority for not protecting the local Serb minority). However, it comes at a particularly sensitive moment, with the Bosnian authorities facing the need to implement a recent European Court of Human Rights decision in which representatives of smaller minority groups not accorded constituent people status challenged the constitutional system of quotas that effectively barred them from higher office (for analysis of the decision, see the ECHR Blog here and the EJIL blog here).

While these may seem like relatively minor points, I would argue that they are not. The war in Bosnia that culminated with the horrific killings in Srebrenica could scarcely have happened without the active meddling of its powerful neighbors, Serbia and Croatia. In this context, the most appropriate way for Serbia to express its remorse for Srebrenica and ensure that such events cannot take place again may be a simple and clear renunciation of any further interest in destabilizing Bosnia’s fragile post-war repose.

Happy Easter – and good on the Serbian Parliament

Just a quick administrative note to say that I will be departing this afternoon for a long Easter weekend in my wife’s ancestral village in the Åland archipelago in Finland. Pending further arrangements with our phone carrier there, I will be safely outside the blogosphere, so please don’t expect any new posts until early next week.

In the meantime, I thought it might be worth giving the Serbian Parliament its due for issuing a resolution condemning the 1995 Srebrenica massacre in Bosnia. Although the text of the resolution does not yet seem to be available in English, lots of interesting reports are new available, including by the NY Times, Euronews (with video) and the European Voice (by an old friend, Toby Vogel).

There is, of course, plenty to find fault with. It took long enough, came at a convenient time (now that Serbia safely dodged the bullet of a finding of liability for genocide in the 2007 ICJ decision in Bosnia v Serbia), and has not yet been accompanied by the handover of Ratko Mladic, who is accused of engineering the massacre and rumored to still be in hiding in Serbia. The good legislators also failed to find the strength to refer to the “g-word” itself, despite established judicial precedent on this point. Moreover, as the odious Radical Party pointed out, the resolution would probably not have come about unless as a result of international pressure.

On the other hand, what of it? International pressure is not always a bad thing, and this comes as another example of the very real soft power the EU accrues by means of remaining committed to the enlargement process. And Ratko must certainly be counting time; the fact that the earlier arrest and handover of the more charismatic (well, to some) Radovan Karadzic did not bring the heavens crashing down on Belgrade testifies to that.

And finally, conditional and caveated as it may be, this is an on-the-record apology of the type that many countries continue after decades to waste time, energy and political capital resisting. It is a milestone and one that cannot have been easy to achieve. When I consider the hysterical reaction the US has witnessed to the passage of a relatively innocuous piece of domestic  legislation on health care reform (see Frank Rich in the NY times, here), I begin to appreciate the difficulty Serbian parliamentarians face – as the representatives of constituencies conditioned by fifteen years of denial – in stating before the world that their country had been complicit in one of the most loathsome acts of post-Cold War history.

Evo, svaka čast i neka bude mir.

Guest blogger Peter van der Auweraert on Iraq restitution

It’s a pleasure to announce an upcoming guest posting by Peter van der Auweraert of the IOM Reparations Programmes. As discussed in postings from last Friday and Sunday, Peter is an expert on property issues in Iraq and has worked closely with the Iraq Commission for Resolution of Real Property Disputes (CRRPD), the body responsible for addressing pre-2003 restitution claims. Peter will be focusing on an issue he raised in response to Friday’s post, namely the significance of amendments to the CRRPD’s organic law that were passed just before last weekend’s parliamentary elections.

As an administrative aside, I gather that some of you may have been put off from commenting on earlier posts by the formalities apparently involved. As I understand it, the first time anyone comments, the text is put in a queue to await my personal approval. Once you have passed my rigorous inspection (no split infinitives, please) for the first time, all your subsequent comments will apparently be posted without any such rigamarole.

Don’t be shy…

On a quick administrative note, I wanted to thank my faithful readers but encourage them to more actively use this blog. Some things I have in mind are the following:

  • Please feel free to comment on the posts. I am happy to report that I am still getting very good readership with between about ten and thirty hits on an average weekday. However, the number of comments has been low and it can feel a bit like an echo chamber sometimes. If you have a personal anecdote or a link to an interesting text to add, if you like what I’m saying or if it gives you agita, please don’t hesitate to let me and other readers know by dashing off a comment.
  • Sign up to be emailed when new postings are put up (see the right sidebar at the top).
  • Let me know by email (rcw200@yahoo.com) if there are issues you think I should be covering or documents and resources I should be posting. I am planning to try to ramp up my links over the next weeks, perhaps on a separate page broken down by topic and region (Dragan, thanks for your suggestion and it’s on my to do list).
  • Guest blog – many of you are in a far better position than me to comment on new developments from the thick of the field as well as the lofty heights of Geneva, Brussels, DC, etc. If you have particular insights on such developments that you would like to share, feel free to contact me – I would generally welcome anything quite broadly HLP-related and am not fussy about formatting and length.

Hope to hear more from you soon!