Post-conflict property repossession : case study of Bosnia-Herzegovina and Kosovo

Abstract

In this thesis I argue that the post conflict property rights restitution is of paramount significance for rebuilding peace and enabling return and reintegration of displaced population, or making possible for them to start new life in the place of displacement. Property rights do not only presents a motivation for IDPs to return, but also generate a source of sustainability for building their existence somewhere else, other than their ancestral home, in the process of resettling if they chose so. Also, this approach must be coupled with several other factors, like sense of security, work and economic opportunities and access to basic public services. I argue that the key element in this process is the timely response to destruction and usurpation of property, during and immediately after the armed conflict, on behalf of international actors responsible for process of stabilizing the territory affected by conflict. This response of peacebuilding agents should include undertaking all necesarry steps woth aim of ensuring timely and fair process of with aim of ensuring timely and fair process of property restitution after the conflict and facilitating the return of IDPs. The fact that the international bodies are usually in charge of re-establishing legal framework and functioning institutions is crucial in that sense. The research relies on the normative method in analyzing domestic legal documents as well the relevant international legal instruments, such as the Pinheiro Principles and the UN Guiding Principles on Internal Displacement. It also employs the comparative legal method in comparing the property restitution process in two comparable postconflict contexts. The socio-legal method has been also used but primarily in the process of the selection and collection of data. While the main source of data are the legal and policy documents issued by the UN peacebuilding missions established in Bosnia&Herzegovina and in Kosovo after the conflict, the research has also relied on the primary data collected through semi-structural interviews conducted with experts in field of property restitution in the post-conflict environments. In the first part I present basic operational concepts and definitions which are used in the thesis. The second part examines the case of Bosnia and Herzegovina with the emphasis on historical genesis of conflict and focus on crucial institutions in the process of property restitution. Third part follows similar pattern of examining historical genesis of the conflict in Kosovo and the key post-conflict institutions established by the United Nations Mission in Kosovo. In fourth part I make a comparative analysis of the two systems and draw conclusions. I argue that administrative and legal mechanism which were established in Bosnia and Herzegovina and Kosovo, and especially in the first case, are from great importance for dealing with the process of property restitution, which is considered as corner stone for return process and key recall factor of process of ethnic hmogenization of teritories, as well as promoting rule of law, development and social cohezion on post bellum scene. I will observe shortcomings which reflected inability of access to justice, and the obtained results ocassionally casted shadow on basic goals, which are efective property repossesion and return to the place of origin. While the critique of the first goal is reduced to judicial and technical aspects of the repossesion process, stances on other goal highlight limitations which overly legalistic approach of the international community set up, who’s intervention is not followed by appropriate measure which would enable sustainable return. However, there are also positive consequences of the mentioned interventions, especially in the aspect of adopting recomendations and principles of international law.