From the Right to Return to the Return of Rights: Completing Post-War Property Restitution in Bosnia Herzegovina

Abstract

Given the numbers displaced as part of the means and methods of the armed conflict during the war in Bosnia Herzegovina between 1992-95, it is not surprising that the return process has been long and drawn out. Nevertheless, a remarkable process of post-war reconciliation has quietly drawn to completion in Bosnia Herzegovina. In less than a decade after the end of the war, over 90 per cent of the 211,871 claims for the restitution of real property made by internally displaced persons (IDPs ) and refugees have been resolved. Annex 7 of the Dayton Agreement, The Agreement on Refugees and Displaced Persons, provided for the return of IDPs and refugees, but it was the object of obstruction in the mid to late 1990s. However, by the middle of the first decade of the 21 century, restitution was all but complete. The significance of this turn-around extends far beyond the hundreds of thousands of Bosnians who benefited directly. It is a model, both positive and negative, for the resolution of many other conflicts around the world in which land is a major issue. While a number of factors contributed to the dramatic acceleration of the restitution process in Bosnia, certainly the unexpected staying power - and, indeed, concerted action on property restitution - of the international community played its part. A 'carrot and stick' strategy manifested itself in high-profile funding, admittance to international bodies, and the removal of obstructive officials. As this paper shall argue, the greatest factor in seeing the process through to the end was the shift from a process that focused primarily upon ethnically-linked 'return', sometimes at the expense of individual property rights, to one that was driven primarily by the recognition of property rights and the rule of law. This was possible for a number of reasons. Uniquely, international human rights conventions were incorporated directly into post-war Bosnian domestic law. Influenced by this, legislative amendments and changes in implementation strategy progressively slanted the process in favour of simple, almost intuitive, rights recognition. Shifting away from the emphasis on 'return' removed a subjective element from implementation and, combined with greater emphasis on the 'rule of law', narrowed the scope for the system to be manipulated and thwarted. This, thereby, de-politicised restitution. st