Housing and Property Restitution and IDP Return in Kosovo1. restitution des logements et des biens...

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© 2006 The AuthorJournal Compilation © 2006 IOM

International Migration Vol. 44 (3) 2006ISSN 0020-7985

* School of Law, University of Reading, UK.

Housing and Property Restitutionand IDP Return in Kosovo1

Anneke Rachel Smit*2

ABSTRACT

The establishment of the Housing and Property Directorate (HPD) andClaims Commission (HPCC) in Kosovo has reflected an increasing focusinternationally on the post-conflict restitution of housing and propertyrights. In approximately three years of full-scale operation, the institutionshave managed to make a property rights determination on almost all of theapproximate 30,000 contested residential properties. As such, HPD andHPCC are being looked to by many in other post-conflict areas as an exampleof how to proceed. While the efficiency of the organizations is commendable,one of the key original goals – the return of displaced persons to theirhomes of origin – has to a large degree been left aside. The paper focuseson two distinct failures of the international community with respect to thefunctioning of HPD/HPCC and its possible effect on returns: a failure ofcoordination between HPD/HPCC and other organizations working onreturns, and the isolation of residential property rights determinations fromother aspects of building a property rights-respecting culture in Kosovo.

INTRODUCTION

The right of a displaced person to return to her/his “home of origin”, interpretedto mean the physical structure occupied before the forced displacement occur-red, has gained much support internationally in recent years. Housing and prop-erty restitution mechanisms are increasingly being established by the internationalcommunity in post-conflict areas, justified by their intended role as a leader inthe return process. Bosnia and Herzegovina and Kosovo are two high-profile –and heavily funded – examples.

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© 2006 The Author Journal Compilation © 2006 IOM

Restitution mechanisms undoubtedly have other social and economic benefits.For example, there is a strong movement internationally suggesting that theestablishment of security of tenure and certainty of property rights is key injump-starting a failing economy (de Soto, 2000). Property rights may also playa key role in the formation of one’s sense of identity and indeed one’s sense ofsecurity (see for example Kearns, 2000; Abramson and Theodossopolous, 2000).Certainly the loss of a home during conflict has the potential to be a criticalpsychological event for affected individuals. Porteous and Smith write, “if homeis the ‘centre of the world’, then losing home is ‘undoing the meaning of theworld’” (2001: 34). As such, restitution may have an important emotional im-pact for those involved. However, the strongest rhetoric surrounding post-conflict property restitution remains that of encouraging sustainable return, whilethe reality is a less than successful interplay between restitution and return.

This paper begins with a short overview of international law protections of adisplaced person’s right to return to his or her home of origin. It will then takeKosovo as a case study of international approaches to property restitution, out-lining efforts to date including a description of the difficulties encountered par-ticularly in the early days of the United Nations (UN) mission, and the interplay– or lack thereof – between these projects and efforts to encourage returns. Itconcludes that to a large extent restitution has become something carried out inisolation – from return processes, from the individuals concerned, and fromother elements of creating a “property rights culture” in post-conflict, post-socialist societies. As such, opportunities for the restitution process to contributemeaningfully to the development of a rights-respecting society in which Kosovars,whatever their ethnic background, might be able and willing to return and liveare being lost.

The paper is informed by the author’s experience as a Human Rights Officer inKosovo with the Organisation for Security and Cooperation in Europe (OSCE)in 1999 and 2000 and as a Refugee Settlement Officer with Citizenship andImmigration Canada working with Kosovo Albanian refugees in 1999, and isdirectly based on fieldwork undertaken in Kosovo in June 2003, November2004, and September 2005.

THE RIGHT OF RETURN TO ONE’S “HOME OF ORIGIN”

The international community has recently placed an intensified focus onthe development of a standardized approach to the protection of housing, land,and property (HLP) rights in the post-conflict space. Principle 28(1) of thenon-binding Guiding Principles on Internal Displacement (UNGA, 1999),issued by then-UN Secretary General’s Special Representative on IDPs, places

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a responsibility on officials to “establish conditions, as well as provide the means,which allow internally displaced persons to return voluntarily, in safety and withdignity, to their homes or places of habitual residence[.]” Principle 29(1) fur-ther requires officials “to assist returned and/or resettled internally displacedpersons to recover, to the extent possible, their property and possessions whichthey left behind or were dispossessed of upon their displacement[.]”

The United Nations High Commissioner for Human Rights (UNHCHR)’s Sub-commission on Prevention of Discrimination and Protection of Minorities3 hasbeen particularly active on the restitution issue. The Sub-commission passeda resolution in 1998 entitled “Housing and property restitution in the contextof the return of refugees and internally displaced persons” in which it reaffirmed“the right of all refugees [...] and internally displaced persons to return to theirhomes and places of habitual residence, should they so wish” (UNHCHR, 1998).This has served as the basis for numerous subsequent resolutions and reportsconfirming the right of return to home of origin, and linking this to the establish-ment of effective housing and property restitution mechanisms (UNHCHR, 2002,2004).

The Sub-commission’s latest and most significant development has been thecreation of a set of agreed principles to guide this work. The Draft Principles onHousing and Property Restitution for Refugees and Displaced Persons (UNHCHR,2004) were released in June 2004, and following a period of extensive distributionand expert consultation, were passed by the Sub-commission in its August 2005session. The Draft Principles are described as an intersection of internationalhuman rights law and international humanitarian law (UNHCHR, 2004: 2), andare primarily an amalgamation of rights relating to housing and property whichare already protected in other international human rights documents.

The creation and implementation of a post-conflict HLP restitution mechanismin Kosovo has occurred on roughly the same timescale as the Sub-commission’sprocess leading to the Draft Principles, and as such each has undoubtedlyinfluenced the other. Certainly both are also reflective of a generally increasinginternational awareness of the importance of dealing with HLP rights in post-conflict situations. The next section gives a brief overview of the approach topost-conflict restitution in Kosovo.

THE RESTITUTION PROCESS IN KOSOVO

Following an agreement on the cessation of conflict in Kosovo in June 1999,UN Security Council Resolution 1244 was passed, laying out the responsibilities

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of the international community in the territory (UNSC, 1999). The role of theinternational community in Kosovo has been described as the “high-water markof international authority” (Perritt, 2005: 4) in post-conflict societies, referringto the breadth of responsibilities assumed by various international actors underthe umbrella of the UN Interim Administration in Kosovo (UNMIK). These rangefrom the creation of a local governance to infrastructural concerns to humanrights promotion and democracy building and include, at article 11(j) of Res-olution 1244, a commitment to assure “the safe and unimpeded return of allrefugees and displaced persons to their homes in Kosovo”.

While the majority of the more than 800,000 ethnic Albanians who had fled theterritory during the conflict returned shortly after the signing of the peace agree-ment, an estimated more than 200,000 ethnic minorities, mainly ethnic Serbs,were forced from their homes at the same time. Most fled into other parts ofSerbia, and a few into ethnic Serb enclaves within Kosovo. Several thousandethnic Albanians also remained displaced after the conflict, mainly from thenorthern part of the city of Mitrovica4 which has become an enclave inhabitedmainly by ethnic Serbs.

From the beginning of the international community’s involvement in Kosovo,the issue of housing and property rights was high on the agenda (Das, 1999).The crisis created by the widespread destruction of homes by both ethnic Serbsand ethnic Albanians during and shortly after the conflict was exacerbated byhigh incidences of “secondary occupation” – individuals or families moving intohouses belonging to those who had fled during or after the conflict. For ex-ample, many ethnic Albanian families fled to the Kosovo capital of Pristina insearch of shelter and work during and after the war, occupying homes to whichethnic Serb families, displaced to Serbia proper following the conflict, lay claim(Beardsley, 2002). Likewise, in primarily Serb areas such as North Mitrovica,ethnic Albanians’ homes were occupied by ethnic Serbs. The situation wasfurther complicated by the fact that under discriminatory laws favouring ethnicSerbs, housing allocation under the former Yugoslav regime between 1989 and1999 saw numerous Albanians lose the rights to housing they had previouslyenjoyed (Leckie, 2000a).

The UN Human Settlements Programme (UN-HABITAT) was enlisted in late1999 in the early days of the UN administration in Kosovo to coordinate thehousing and property restitution process, at least as an interim measure untillocal mechanisms had been created to take over this function. In November1999 UNMIK Regulation 1999/23 officially created the Housing and PropertyDirectorate (HPD), which would receive and process property claims, and theindependent Housing and Property Claims Commission (HPCC), which would



adjudicate them (UNMIK, 1999). A delay of almost one year followed as theinternational community’s attention turned to other issues, for example the set-ting up of local administration (including holding elections) and reforming thecriminal justice system. The creation of Regulation 1999/23 had removed jurisdic-tion for all housing cases from the domestic courts (in line with standard legalinterpretation in Kosovo), but nothing could be done until the Rules of Pro-cedure for HPD/HPCC were created. This left property rights cases in a vacuum.

In October 2000 UNMIK Regulation 2000/60 was finally passed, containing theRules of Procedure for HPD/HPCC (UNMIK, 2000). Generally speaking, thebasis for an HPCC determination was to be what property rights (i.e. ownershipor possession because much of the housing stock in Kosovo before the conflictwas socially owned housing allocated to workers by state-owned enterprises)were attached, or would have been attached if not for discriminatory practices,to the dwelling in question as of 24 March 1999 (UNMIK, 2000: s.2). HPCCwould have jurisdiction to determine three types of cases: Category A, claims byindividuals who lost property as a result of discriminatory laws after 1989;Category B, claims by persons who entered into unofficial transactions for thesale of their property; and Category C, claims by refugees and displaced per-sons who have lost possession of their property.

While the passing of the Rules of Procedure in principle allowed HPD/HPCC topush ahead with property rights determinations, the combination of UN-HABITAT’s lack of experience administering this type of programme (it hadnever previously taken responsibility for a quasi-judicial programme and hadlimited operational experience generally in the Balkans) and a serious lack offunding limited its effectiveness (Interview, 2004a). Operations were being runinefficiently primarily from the organization’s headquarters in Pristina, withregional offices insufficiently staffed and funded, if in existence at all. UN-HABITAT repeatedly warned that funding was desperately needed in order for itto continue its work (HPD, 2002a): “The HPD continues to work with UNMIK,UN-HABITAT and donors to resolve the funding crisis. Without resolution ofthis issue, the HPD will close in Kosovo in September 2002 and in its entirety inDecember 2002”.

Such warnings were not heeded, however, and by July 2002 HPD/HPCC had tocurtail their claims determination operations to processing only those claimswhich had already been received. By September 2002, although a total of 17,785claims had been accepted only 448 had been determined (HPD, 2002b).

Thankfully, this was the beginning of a major change with respect to fundingand priority for property rights determinations in Kosovo. By November 2002

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UN-HABITAT had handed over all the HPD/HPCC operations within Kosovoto UNMIK. Most importantly, sufficient funding to get the organization fullyoperational was secured from donors. Since their reconfiguration HPD and HPCChave made a mammoth push on the determination of property rights claims. ByJune 2003 approximately 200 staff (25 internationals and 175 nationals) hadbeen employed by HPD, spread out through headquarters and all five regions,with all offices fully funded.5

The final deadline for the submission of claims (having twice been extended)was 1 July 2003, by which time a total of 29,061 claims had been received(HPD, 2003). Claims were made via HPD, with respondents then given theopportunity to respond on paper. Then the process was left in the hands of HPDstaff and HPCC. After files were prepared by HPD staff lawyers, includingpulling together all paperwork and doing checks on documents, they were givento HPCC for determination. The Commission is composed of three decisionmakers – two internationals and one Kosovo Albanian former judge. All threehave sat together as a panel (and the same three decision makers have sat sincethe creation of the Commission). Since the restructuring of HPD/HPCC in 2002decisions have been made using a “mass claims” approach, referring to the factthat cases are grouped together for consideration according to similar facts. Arepresentative sampling of cases (approximately ten) is taken from each factscenario, determinations are made, and these are applied to the rest of the casesin the group. HPD staff has held up the mass claims approach as a key reasonfor their efficiency relative to their UN-HABITAT predecessors. HPCC func-tions on a case-law system and as such is bound by precedent (HPCC, 2003a,2003b).

The new approach has undoubtedly radically improved the efficiency of theprocess. One side effect, however, has been the removal of anything more thantoken involvement on the part of the interested parties. Certainly claimants andrespondents in Kosovo do have a greater opportunity to participate in HPD/HPCC processes than their counterparts in Bosnia did with the Commission forReal Property Claims (CRPC) (see Day, 2001: 245): a claimant must go in per-son to an HPD office to make a claim – thereby ensuring at least one opportun-ity to speak to someone about what has happened to her/his home – but theprocess is more administrative than a real chance to give testimony. Likewise,once the claim has been made, the current occupant of the house will be invitedto go to the HPD to make a statement and submit any relevant documents.6 Thetwo parties may also be contacted separately by the legal officer investigatingtheir claim if additional information is needed. Other than this, however, there isno further involvement. The parties are not permitted to give any testimonybefore the HPCC, and there is no hearing for them to attend even as observers.



They have simply been made to wait, often several months, before beinginformed once a decision is made in their case. In the meantime, accessinginformation from HPD on the status of their claims or the claims against themwas until recently reportedly very difficult.

Mediation, too, was eliminated from the HPD/HPCC structure. The original planwas for HPCC determinations to take place only “where mediation [was] notappropriate” (Das, 1999). Regulation 1999/23 planned a role for mediation, withHPD staff meant to coordinate this activity. Section 1.2 states in part: “TheDirectorate shall refer […] claims to the Housing and Property Commission forresolution or, if appropriate, seek to mediate such disputes and, if not success-ful, refer them to the Housing and Property Claims Commission for resolution”.

However, no steps were taken to ensure that HPD offices were staffed withsomeone who had experience in mediation, and in the push toward more effi-cient procedures, the mediation option has been dropped altogether. An inter-national member of HPD’s staff stated, “No one in their right mind could havethought that [mediation] could work in a mass-claim process” (Interview, 2003g).The staff member continued:

[W]hen it was tried on some test cases, it was basically the parties hagglingover prices. It’s not like there is a dispute which can be compromised – oneparty had a right to the property but no possession and the other party hadpossession but no right. So either the property was sold or it was not. Therereally wasn’t anything the HPD lawyers could do. If the HPD lawyers tried totake an active role, they basically became real estate brokers, which presenteda conflict of interest. If the parties agreed on a price, they did not need the HPDto mediate. If the parties did not agree on a price, there was not much the HPDcould do but sit there and let things drag on. To have this be a serious step ina mass claims process would have dragged this on forever. So active mediationwas quickly abandoned.

Of course it is still possible for claimants and current occupiers to contact eachother privately, and HPD does still declare itself willing to assist in these mattersby providing contact information if both parties are interested. However, assuggested in the quotation above this generally only happens when the claimantowns the house in question and is interested in selling it to the occupier.

When HPCC decisions are completed attempts are made to communicate thefinding to the concerned individuals through a variety of means, including themailing of letters and the use of telephone call centres located in the regionaloffices. Individuals are now also encouraged to keep track of their claims viathe trilingual HPD website (www.hpdkosovo.org) although this presumes

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access to, and familiarity with, the Internet. On receipt of a decision in his/herfavour, an applicant has several options: closure of the case by HPD, whichends HPD’s responsibility for the property and refers jurisdiction for issuessurrounding the property back to the local authorities; repossession (with HPDperforming the eviction); or HPD administration, under which HPD will awardtemporary possession of the property to someone in need of housing. There isno formal appeal process, only an opportunity to ask the same commission,within 30 days, to reconsider the decision on the basis of evidence which wasnot considered or material error in applying the relevant Regulations to the facts.

The respondent occupier, when informed of a decision, will be required to leavethe premises, either because the successful claimant plans to return immediatelyto the property or because the property is going to be put under HPD adminis-tration (in which case the occupier will have 90 days in which to leave). If anoccupier does not leave by his/her own free will, eviction will eventually beenforced by HPD through the use of evictions officers. Respondent occupiersfacing eviction may request humanitarian housing assistance if they do not haveaccess to other housing, however such assistance provides no property rightsbeyond the right of possession for a specified period of time.

Of the total 29,061 claims made, 28,015 had been decided by June 2005 (HPD,2005a). The goal to have completed the rest of the claims in 2005 has beensubstantially accomplished. The next step is to shut down the institutionsentirely in 2006, having implemented decisions on all contested residential proper-ties in Kosovo (Interviews, 2003a, 2004b, 2005a; UNMIK, 2003d: 91-100; HPD,2004). At the time of shutdown HPD/HPCC files will be passed over to localauthorities. Given progress to date, there is little reason to doubt that HPD/HPCC will accomplish the task within their stated timeline or near to it.

CHALLENGES TO RESTITUTION AND RETURN

There is, therefore, much to be lauded about the work of HPD/HPCC. Follow-ing a shaky start, and on a less than generous budget, the organization hasmanaged to churn through determinations at a rate previously unimaginable (UN-HABITAT staff had reportedly estimated it would take ten years to get throughthe entire caseload, while the “new” HPD has managed to do it in just more thanthree years). Within Kosovo, HPD/HPCC is viewed by staff of other interna-tional organizations as doing good legal work (Interview, 2003f), and nationallegal staff of HPD/HPCC report that their legal colleagues within the KosovoAlbanian society feel similarly about the legal value of the work of HPD/HPCC



(Interview, 2004f). Further, given the challenges that face any large-scale projectin the post-conflict space and the complexity of the property rights situationfollowing the conflict in Kosovo, the international community should be con-gratulated for having managed to accomplish as much as they have via HPD.HPD, and CRPC in Bosnia and Herzegovina before it, are the envy of numerousother post-conflict societies in which individuals only dream of having the rightto their property returned to them. In Georgia, for example, more than a decadefollowing the beginning of a ceasefire in one of its separatist conflicts, no res-titution mechanisms have been established as the political and financial supporthave simply not been strong enough (Smit, 2005).

However, the impact and importance of HPD/HPCC cannot be measured solelyby the speed and efficiency with which determinations have been made, butalso whether the organizations have fulfilled the purposes for which they wereoriginally created. Looking back to the origins of, and justifications for, HPD/HPCC, one of the main reasons for doing restitution was to facilitate the returnof displaced persons to their homes of origin. This is visible throughout theearly rhetoric surrounding the institutions. An early briefing paper prepared bythe then-Senior Legal Advisor to the Housing and Property Directorate in Kosovostated (Das, 1999):

Unless housing and property rights are addressed, any attempt to return minorityrefugees will raise severe political and practical problems. Because it combinesa number of different functions within a single institution, the Directorate ispotentially a very useful institutional tool for managing the return process.

UNMIK Regulation 2000/60, outlining the Rules of Procedure for HPD/HPCC,also clearly incorporated protection of the right of return into the mandate ofHPD/HPCC, stating: “Any refugee or displaced person with a right to propertyhas a right to return to the property, or to dispose of it in accordance with thelaw, subject to the present regulation” (UNMIK, 2000: s.2.5).

An article written by the then-Director of HPD in 2001 (Lewis, 2001) empha-sized the interconnectedness of property rights protections with other pre-conditions for return:

The rights to property are one of the preconditions for the return of familiesdisplaced by war to Kosovo. There are others, including the right of freedom ofmovement, the right to trade freely without duress, and the right to participatein government. UNCHS (Habitat) is working through HPD/HPCC, together withUNMIK, the international security force (KFOR), the Office of the UN HighCommissioner for Refugees and the Organization for Security and Co-operationin Europe to restore and assure these rights for all residents of Kosovo.

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Ostensibly returns do remain an element of the HPD/HPCC process; forexample, the opening line of the 2004 HPD/HPCC report entitled “The WayForward” states: “A secure accommodation is a fundamental human right and aprecondition for sustainable return of Refugees and Internally Displaced Per-sons” (HPD, 2004). However, while the rhetoric continues to pay lip service tothe returns issue, perhaps primarily as a way to continue to secure funding(Interview, 2004a, 2005b), it is clear that the reality of the work of HPD haschanged. HPD/HPCC have become singularly focused on legal determinationsto the exclusion of other concerns such as return. In stark contrast to state-ments in HPD’s printed matter at the time, its then-Director of Legal Processemphatically stated in 2003 (Interview, 2003a):7

We’re not in the returns business. Of course we’re part of the returns process,but we’re not a returns organization. Just like we’re part of the process ofcreating law and order in Kosovo but we’re not the police. Returns are for [theUN agencies with responsibility for refugees/IDPs] to deal with. But if we dohousing and property rights determinations intelligently then it’s up to peopleto return or not.

The official rhetoric of HPD seems now to have changed as well; HPD’s websitecurrently (2006) states the following in its “About Us” section:

The HPD is not a returns agency.

The HPD’s mandate is to settle legal disputes on residential property and toprovide overall direction on property rights in Kosovo in accordance with itsmandate. By resolving property disputes, the HPD also contributes to the ruleof law and encourages financial investment, both of which are recognized as anintegral part of the overall effort to develop a sustainable economy for thebenefit of both Kosovo and the region in which it is located. HPD is notresponsible for actively promoting returns. By settling disputes on residen-tial property the HPD allows those who, for different reasons, lost their prop-erty right to have their right recognized. Whether this actually leads to areturn or not depends largely on the will of the successful claimant, and onthe political environment [emphasis added].

Rather than the task being seen as a positive obligation to ensure the right toreturn, therefore, HPD/HPCC’s goal now is now simply to ensure that no one isactively deprived of the right due to a lack of a housing and property restitutionprocess. A perhaps predictable side effect of this shift away from a focus onreturn to a focus on a simple legal determination is a significantly waning com-mitment to cooperation with organizations working on other aspects of return.This is discussed in the following section.



Lack of coordination on return issues

While most individuals making claims to HPD should have received a deter-mination of their claim by the end of 2005, a failure of coordination betweenHPD/HPCC and other agencies means that many displaced persons do not feelthat return is a real option because other conditions necessary for successfulreturn are not provided at the same time. A returnee family might find them-selves the only people of their ethnic group in the village, meaning there will bea lack of security, they may not have a means to support themselves financially,and a range of other services may not be available to them in a language theyspeak. While international organizations are working on these issues as well,there is no guarantee in the current climate that they will be addressed in coord-ination with housing and property issues. The right to return has been describedas “a composite of many different, interlocking legal rights” (Cox and Harland,2003: 524-525); in order for all elements to come together to make return pos-sible, they must be addressed in a coordinated fashion.

Since 2003 the “Standards for Kosovo” document (UNMIK, 2003a) has pro-vided a focus for much of the international community’s work in the territory.The document contained a “set of targets that Kosovo must meet in order forthe talks about the future political status of Kosovo to begin” (of course talks onKosovo’s political status are ultimately proceeding, despite the fact that many ofthe Standards have yet to be met). Ironically, two of the key areas are the returnof displaced persons and the protection of property rights. Yet these seem to bedealt with as two separate questions, rather than inextricably linked.

Admittedly, the landscape has changed since the “first” HPD was created inKosovo. Other mechanisms have been developed in attempts to facilitate re-turns to Kosovo, thus alleviating some of the pressure on HPD/HPCC to per-form this role. The UN Office for Returns and Communities (ORC), created inlate 2001, now has responsibility for the oversight of internationally managedreturns projects in Kosovo. ORC’s Manual for Sustainable Return, in encour-aging the development of projects for return, foresees the cooperation of –among others – NGOs, the local municipalities, the displaced populations them-selves, and ORC, which is primarily responsible for procuring donor fundingfor return projects (UNMIK, 2003b). ORC has established working groups forreturn in most of Kosovo’s 30 municipalities, as well as at the regional level.8

However, while ORC may now be taking a leading role on returns, the existenceof the organization does not negate the need for HPD’s involvement and cooper-ation. The Working Groups on Return are potentially important venues for thecoordination of property rights determinations with other return efforts. While

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HPD representatives do sometimes attend the inter-agency working groups onreturns, their attendance is not mandatory (indeed, it is not even contemplatedby the Operational Guidelines set out in the Manual), and little actual coordina-tion reportedly goes on with respect to property rights. One OSCE HumanRights Officer who attended such meetings stated: “I constantly had to warnmembers of the working group that ‘if you don’t pay attention to it this propertyissue is going to blow up’” (Interview, 2003b). When HPD staff attend, theirpresence seems mainly symbolic. A senior international staff member of HPDstated (Interview, 2004b):

There are countless inter-agency meetings taking place each week. For otherorganizations there is a reason to go – they are involved in the topics beingdiscussed and have something to report on. For HPD to attend the meetings onreturns is for us to go simply to “show our face”, and we just don’t have thestaff to be able to afford to send someone every time.

One basic way in which HPD procedures could be of assistance to organizedreturns is in the order in which claims are processed. By considering all theclaims for property in a particular village at once, HPD could help facilitate agroup of families returning at the same time, ensuring safety in numbers. Al-though somewhat controversial due to the fact that there would be no principleof “first-come, first-serve”, such an approach was considered in early days inKosovo (Interview, 2004c). However, the implementation of such an approachhas been slow in coming, if at all.

Occasional offers by HPD to collaborate with ORC on a plan of return (forexample to accelerate the determination of claims in originally Serb villages in acorridor reaching from the Serbian border and encircling Pristina) have report-edly never been taken up by ORC (Interview, 2003a). ORC staff has seemedunaware that HPD would be willing to approach claims in such a way (Inter-view, 2003c). UNHCR staff in Serbia working with ethnic Serb IDPs fromKosovo has also expressed frustration at the apparent rigidity of HPD proced-ures. One Protection Officer stated that if her office had ever been given theopportunity to suggest areas for prioritized claims determination, it would havehelped them immensely in facilitating return of the IDPs the office works with(Interview, 2003d).

At least on a rhetorical level, ORC seems recently to have come on board:UNMIK’s 2004 Strategy for Sustainable Returns states “HPD is able to prior-itize its work to focus on geographic areas that have been identified as potentialreturns sites. Thus, the requisite tools are now in place for returns projects to bebuilt around repossession of homes” (UNMIK, 2003d: 17). However, it is notclear that such coordination is actually happening.



Instead, many IDPs who have submitted claims to HPD find themselves unwill-ing or unable to return, even when they receive a positive determination of theirclaim. As one ethnic Serb IDP originally from Urosevac stated (Interview, 2003e):“I filed my HPD claim in 2001. At first I thought of a possibility to return butknowing that no one else returned to the place made me feel insecure. I havechildren and it would be very difficult for them to live there”.

He stated that if HPD had been able to arrange to settle the claims of, for ex-ample, all the Serbs living on his street in his home village at the same time, hemay have been more willing to contemplate a return. Ultimately whether or notto return is a personal choice for each displaced person or family. However, itmust be asked how real the option is when displaced individuals are left holdinga piece of paper affirming their right to their home, yet knowing that if they tryto exercise that right they will find a plethora of other obstacles.9

HPD staff members’ response to this has been that the restitution process islaying the groundwork for return, perhaps at a later date. Such an approach,however, is destined to have negative consequences with respect to return.Individuals receiving positive determinations are, in a sense, having their handforced: having been displaced for several years and in many cases living in lessthan satisfactory conditions, IDPs feel a need to find some sort of durablesolution to their displacement. If return is not immediately available, then thenext possibility will often be local integration in the area where they have takenrefuge since the conflict. To do so, of course, requires money – for the pur-chase of housing, for example. HPD determination in hand, these IDPs are well-placed to sell their properties in Kosovo to raise some of the necessary funds forresettlement. In many cases they will not feel capable of simply placing theirproperty under HPD administration and waiting to see if the situation for return-ees in Kosovo improves. The ethnic Serb interviewee above, for example, ratherthan returning to his property when he received his positive determination, sim-ply sold his house, thereby eliminating any practical likelihood of his family everreturning to Kosovo.

An increasing awareness among IDPs that HPD is solely concerned with deter-mining property rights, rather than return, has also led to a certain jaded percep-tion of the organization. One ethnic Albanian interviewee, displaced from NorthMitrovica, stated, “HPD is just handing out pieces of paper – everyone alreadyknows who owns which house; the issue is how can we return to live there?”(Interview, 2005c).

HPD staff fully admit that the organization’s role is not coordinated with otherbodies when it comes to returns, but lay some of the blame for this on other

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institutions’ lack of efficiency. As one HPD international staff member stated(Interview, 2003a):

We’re moving too fast for [the rest of the UN]. If we are able to make even 500HPCC decisions per month [half the average at the time], is ORC prepared toorganize the return of 500 families per month to their homes? Are the policeprepared to protect those 500 properties when people are evicted?

At present the answer to both of these questions is quite clearly no. While ORCis working to encourage returns, numbers of those willing to return continue tobe small, and return projects take time to coordinate. According to UNHCRduring 2003 approximately 3,600 ethnic minority IDPs returned to Kosovo(UNHCR, 2003: 428);10 while this was an increase of 31 per cent over theprevious year it still indicates a less than overwhelming movement. In March2004, following the rise of ethnic-based violence, the number of returneesdropped to approximately 2,300, a decrease of 37 per cent from 2003. Inaddition, another 4,200 persons were forced into displacement by the renewedviolence (UNHCR, 2004: 428-429).

Further, although there is a reported improvement in the role of the police inKosovo in responding to requests for support of property-related decisions (forexample HPD determinations) (UNSC, 2005a: para. 61), there has been an on-going problem of homes being burned either by occupants as they are leavingunder an eviction order or afterwards while they sit empty. One ethnic Serb IDPquoted above recounts: “HPD actually evicted the family from my house but bythe time I had the key back from HPD and visited the place the house was lootedand almost completely destroyed” (Interview, 2003e). Although HPD will onlyevict occupants when the successful claimant has declared an intention to re-turn (or when it is placing the house under HPD administration), there stillremains a gap between eviction and return. Houses are “sealed” by HPD duringthis period, but in practice homes are sometimes damaged or burned to theground. The potential returnee, therefore, faces security risks before even re-turning to live in the property.

Aside from security concerns, one of the most critical issues currently hamper-ing return is said to be the lack of a mechanism for displaced persons to regainaccess to their commercial property or agricultural land. These cases do not fallunder the jurisdiction of HPD/HPCC and to date have been left to the municipalcourts. Once before these courts, the cases are subject to all the same problemswhich the creation of HPD/HPCC was intended to avoid as far as residentialproperty was concerned. Even UNMIK admits openly that there is a seriousproblem (UNMIK, 2003d):



Municipal courts throughout Kosovo possess large backlogs of cases andproperty reclamation claims are frequently overlooked or deliberately put offdue to their complex nature or the political pressures involved in such cases.Police and municipal authorities also feel hesitant to enforce basic criminal andcivil trespass laws and evict illegal occupants of such lands without a courtdecision confirming property ownership or land rights. As a result, minority-owned agricultural lands continue to be farmed and shops or businesses usedby persons other than their rightful owners. It is also not uncommon for illegaloccupants to construct residences or other structures on occupied agriculturallands.

The issue has recently become an important focus for international organizationsin Kosovo (Interviews, 2004d, 2004e). Without lands or businesses to return toat the same time, return to residential property remains impracticable. There istalk of a variety of solutions, including the reincarnation of a scaled-back HPDto deal with this property, but again, the fact that it has been done so long afterthe residential property determinations will lessen any real likelihood of return,with individuals unwilling or unable to wait and see if a restitution mechanism isindeed established for these types of property.

Isolation of restitution processfrom property rights culture generally

While lack of coordination on return is arguably the most crucial failure of HPD/HPCC in terms of ensuring sustainable return, other issues related to HPD/HPCC also contribute indirectly to the failure of the development in Kosovo of aculture conducive to returns. One large concern in this regard is HPD’s isolationfrom the development of a larger “property rights culture”. The issue of con-tested residential properties has been chosen as a priority for internationalefforts, but in doing so it has been isolated from other elements of building aproperty rights-respecting culture. The failure to tie in together more aspects ofproperty law will have an impact on the effectiveness of HPD decisions and onthe development of the “rule of law” culture so necessary to support a return toa multi-ethnic Kosovo.

Following the uprisings of March 2004, despite HPD having been in existencefor several years, some ethnic Albanians reportedly took advantage of the chaosagain to make “grabs” of residential properties, declaring, “This is my propertynow” (Interview, 2004d). One anecdote recounted by an OSCE Human RightsOfficer describes an individual, reportedly having broken the seal on an HPD-administered property in Mitrovica, proceeding to the local HPD office anddemanding the keys to the property (Interview, 2004d). Such stories suggestthat while legal determinations have been made, a property rights-respecting

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culture in Kosovo will take much longer, and that at least at the momentthe presence of HPD has not had a great symbolic impact in this regard. At thesame time as HPD determinations are being made and publicized, new illegaloccupation continues to occur.

A recent UN report highlighted the fact that few people report property-relatedmatters to the police, suggesting that asking the police to enforce one’s propertyrights is not widespread (UNSC, 2005a: para.61):

Public use of the police for property-related issues is low: 38 property-relatedcomplaints were filed with the police over the reporting period, compared to5,163 property-related cases received by the civil courts in the first half of 2004.Clear policy guidance on addressing illegal occupation and other property-related cases (aside from activity related to the March 2004 violence, on whichguidance already exists), and a comprehensive, coordinated approach bymunicipal authorities, courts and the police are needed.

Until recently there was little in the way of programmes to educate the publicabout what it means to own property privately, and to encourage respect forproperty rights. Public authorities do seem to be realizing the need for publicawareness campaigns, and in recent months have stepped up public statementsabout the need to respect HPD decisions (UNSC, 2005b: para. 60). The HPDwebsite recently posted a plea from the Kosovo Prime Minister, the Minister ofLocal Government, and the Presidents of the Municipalities which stated in part(HPD, 2005b):

The property right in our country, alike in every democratic society, is sacred.The property belongs only to the owner. We call upon all the citizens of Kosovoto respect the law and the property rights [sic] and to immediately start thereturn of usurped properties. Actual results in this direction will be the mostimportant indicator which proves that law exists in Kosovo and that all itscitizens respect it.

But this may be too little, too late.

This culture of impunity helps to explain why so few occupiers willingly leavethe homes in which they reside when in receipt of a negative HPD determination:according to HPD’s own figures in May 2005, of 1,220 properties from whichsecondary occupants had been required to leave following an HPCC determinationin Kosovo, only 17 per cent were voluntary with the remaining 82 per cent ofoccupants having to be forced out by evictions officers. This too can impact –if indirectly – on the decision of a displaced person to return to his/her homewhen granted a positive determination: even if he/she receives a piece of paper



guaranteeing the right, there may be a feeling that the enjoyment of the rightcould be only temporary, until someone else decides to take over the property.

Alternatives to restitution?

Despite now-generous funding and staff, housing and property restitution pro-cesses in Kosovo have not been the hoped-for panacea as far as return is con-cerned. I have argued that one lesson learned is that if restitution is to be done,in order to effectively contribute to sustainable return it must be done in a morecoordinated fashion. With other post-conflict regions paying close attention towhat has been done in Kosovo and in many cases yearning for the establishmentof an HPD/HPCC-type organization (a similar mechanism is being established inIraq and countries of the South Caucasus are still working toward the creationof restitution laws) it is critical that this lesson be taken from the experience ofKosovo. However, it is also worth asking whether restitution is always the cor-rect approach to the protection of housing and property rights and the provisionof durable solutions for displaced persons in post-conflict situations. Othersolutions have at various times been suggested but ultimately rejected, both inKosovo and Bosnia. A detailed discussion of this subject is beyond the scope ofthis paper, but two short observations may be made.

First, as discussed above, individuals may have reasons, unrelated to property,not to return to their homes of origin even if they gain the legal right to do so. Assuch, restitution will simply give them the option to sell their properties ratherthan actually encouraging return. While coordinated return efforts have thepotential to lower the number of people putting themselves in this category,particularly in long-term displacement situations there will always be those whodecide to remain where they have taken refuge. The longer the displacement,the higher this number may be.

Second, ties to property may seem obvious with respect to the displaced per-sons who make HPD property claims, in that they or their families may haveresided in the dwelling in question for years, if not decades, before fleeing. Butthey may also be important to secondary occupiers, who have now lived in thecontested dwellings for an extended period (more than five years in Kosovo,much longer in other displacement situations such as Cyprus). Although mostliterature on displaced persons and “home” has tended to focus on home as theplace from which people fled, a growing body of work on transnationalismargues that a displaced person or family may have multiple ties, and indeednumerous places which may simultaneously serve as “home” (see for exampleVan Hear, 2003; Fog Olwig, 1998; Van Amersfoort, 2001; Holm Pederson, 2003).Property law researchers are also increasingly challenging the notion that home

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ownership plays a significant role in the way a person connects to his/herphysical environment, recognizing that significant connections may form evenwithout a deed of ownership (Mandic and Clapham, 1996). Over the years thatthe house has been occupied, secondary occupiers will have formed attach-ments to their physical surroundings. Children have been born in these houses,weddings have taken place, family members have died, and physical changes orimprovements have been made to accommodate the tastes and needs of thosewho have been living in the houses, all of which strengthens a family’s con-nection to the place it occupies.

One OSCE Human Rights Officer in Kosovo reported being present at an evic-tion in which the occupying family, having been given 14 days notice to leavethe home they had occupied since the conflict, simply stood by on the expiry ofthe notice period and watched as HPD Evictions Officers emptied the house oftheir belongings (Interview, 2003f). The Human Rights Officer wondered: wasit simply disbelief on the part of the family that it would actually come to this(i.e. that HPD would actually get organized enough to perform an eviction)? Ora feeling that this had somehow become their home, regardless of what theproperty rights determination was, and they could/should not be forced to leavethis way?

Further, secondary occupiers, many displaced themselves, have often becomeintegrated into the larger community in which they have been living for severalyears. Just as the original owners, they may have serious doubts about whetherthey will ever actually return to their own homes of origin, whether for security,economic, or simply social reasons.

Clearly in and of themselves these emotional and social connections should notgive rise to a property right which would trump that of the original owner. Butcoupled with a low likelihood in many cases of the original owner ever actuallyreturning to the property, it must be asked whether restitution in kind, and evic-tion of the occupier, is always the wisest approach to the protection of post-conflict housing and property rights.

While it is clearly important for the international community to continue settingstandards, and to continue to trumpet the right to restitution, perhaps givenlimited resources and realities on the ground in protracted displacement situa-tions there are arguments for broadening the approach. This would correspondwell with a recent move in refugee law to focus less exclusively on return as themost desirable “durable solution” (ahead of local integration and resettlement)and look more to the uses of local integration in particular. As Crisp argues:



In any refugee situation, all three durable solutions should be pursuedsimultaneously, in accordance with the circumstances and characteristics ofdifferent individuals and groups within the refugee population. Refugees whohave the desire, the potential or the need to become locally integrated shouldbe enabled to do so by means of appropriate legal and assistance measures.Refugees who have already attained a good degree of social and economicintegration should be given a secure legal status and residence rights [.]

A housing and property rights policy which builds on this broader, more flexibleapproach to durable solutions might have a better chance of success. One wayforward would be to look more seriously at the possibilities for compensation,so handily rejected in Kosovo and Bosnia. In many former socialist countries ofEastern Europe, for example, compensation, rather than restitution, has beenthe means of attempting to right the wrongs committed by socialist regimes inunlawfully expropriating property, with the European Court of Human Rightshaving been particularly active in setting standards for what constitutes suf-ficient compensation.

CONCLUSION

It is easy to understand how the Kosovo restitution mechanisms came to taketheir present shape, developing as they have in an international climate increas-ingly focused on the legal restoration of post-conflict property rights, followingon experiences in Bosnia, and having to deal with several “lost” years at thebeginning of HPD/HPCC’s work in Kosovo. Yet while efficient, as far as refu-gee/IDP return is concerned, restitution is no panacea and in fact in Kosovo theevidence indicates that it is in many cases reducing long-term opportunities forsustainable return.

Restitution is rooted solidly in international law and certainly has the potential toimprove possibilities for refugee/IDP return in some circumstances. As Leckiewrites (2000b, 4): “Even when conditions may be secure and stable enough forreturn to occur, many millions of people continue to be prevented from return-ing to their homes of origin, recovering property or receiving compensation”.

Further, given the history of discrimination and the instrumental use of housingand property rights before and during the Kosovo conflict, there have beenstrong arguments in favour of relying on restitution to encourage return. How-ever, one must be careful in simply viewing restitution as the “missing link” forreturn. The flare-up of violence in Kosovo in March 2004 makes clear thatthe return of the right to a house is simply not enough to create conditions

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conducive to sustainable return and in fact many other important elements arefar from present in Kosovo. Yet, restitution processes push on as though indi-viduals might actually be able to go home when they receive a positive deter-mination. If restitution is to have an impact on returns, it must be made anintegral part of the process, coordinated with the other aspects of the issue,as well as coordinated with other parts of building a law-respecting (andspecifically property rights-respecting) society. Instead, in Kosovo restitutionhas become a project in and of itself.

Further, restitution is not the only – or perhaps even the ideal – way forwardas far as the protection of post-conflict property rights is concerned. Whilearguably preferable from a moral perspective – contributing to the reversal of“ethnic cleansing” – restitution may in fact have become the pet project of theinternational community at the expense of other legitimate options such as com-pensation.

The formal protection of property rights is important. But the protection of aproperty right which cannot be exercised except by alienation of the right mayarguably not be worth the trouble. For restitution to be effective in providingsolutions to displacement crises, it must be begun quickly and implemented in amanner which allows coordination with other return-focused agencies and intandem with other aspects of respect for property rights. International involve-ment in post-conflict areas is increasingly seen to be most successful whenthere is a long-term commitment to assist, rather than a short-sighted “do thejob and leave” approach (see for example Weiss Fagan, 2003). A more coord-inated approach, even if it takes a little longer, may prove far preferable.



NOTES

1. Kosovo in this article refers to Kosovo (Republic of Serbia).2. Ph.D. Candidate, School of Law, University of Reading. On leave from position

as Legal Counsel, Department of Justice Canada (Immigration Law Services).The views expressed in this paper are mine alone. I wish to acknowledge gener-ous financial support of the Harold Hyam Wingate Foundation and the Schoolof Law, University of Reading, for the field research on which this paper is based.Carl Stychin and Christopher Waters made helpful comments on earlier drafts ofthis paper, and Faculty (in particular Matthew Gibney) and Visiting Fellows ofOxford University’s Refugee Studies Centre provided important insights duringa Visiting Fellowship in 2003.

3. Note that the Sub-commission changed its name in 1999 to the Sub-commissionon the Promotion and Protection of Human Rights.

4. Throughout this paper I have referred to towns and villages within Kosovo, aswell as the name of the territory itself, by only their Serbian names. This is donefor simplicity’s sake and is not intended to impute any political meaning.

5. Regarding funding, however, note that HPD and HPCC are donor-funded whileother UN agencies receive “core UN funding”. Generally speaking this results infar less generous financial support for HPD/HPCC than other UN agencies inKosovo.

6. As discussed above, however, the only relevant documents are those whichprove ownership/possession rights on the relevant date.

7. One of the HPD’s regional directors also used the “we’re not in the returnsbusiness” catchphrase when I spoke with him, suggesting that this has becomea mantra for the organization (interview, 2003h). In some ways this may not beentirely new, however. One veteran of the earlier incarnation of HPD suggestedthat refugee returns were always a justification which could be emphasized whenspeaking to potential donors about HPD’s activities, even if in reality they didnot always constitute a real focus for the organization (interview, 2004a). Similarcomments have been made about CRPC in Bosnia (interview, 2005b).

8. These meetings are held in each municipality, chaired by the UN MunicipalAdministrator, and are attended by the President of the Municipal Assembly.

9. The next phase of this research project, supported by the Harold Hyam WingateFoundation, will involve the distribution of a questionnaire among ethnic Serband ethnic Albanian IDPs to provide quantitative data on what issues are seenas the greatest obstacles to return, and specifically the extent to which propertyrestitution is influencing decision making over return.

10. Note that such figures generally track only in-migration and not those displacedpersons who subsequently decide to leave again, meaning that numbers of re-turnees may be inflated.

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INTERVIEWS

2003a Senior HPD international staff member A2003b OSCE Mission in Kosovo Human Rights Officer A2003c ORC international staff member A2003d UNHCR protection officer, Serbia (e-mail)2003e Ethnic Serb male IDP in central Serbia, originally from Urosevac/Ferizaj2003f OSCE Mission in Kosovo human rights officer B2003g Senior HPD international staff member A (e-mail)2003h HPD international staff member, regional centre director2004a Former HPD international staff member (telephone)2004b Senior HPD international staff member B2004c Former OSCE human rights officer (Property) (e-mail)2004d OSCE Mission in Kosovo human rights officer A2004e ORC international staff member B



2004f HPD national legal staff member2005a Senior HPD international staff member B (e-mail)2005b Former international staff member, OSCE, Bosnia (Property) (e-mail)2005c Ethnic Albanian male IDP in South Mitrovica, originally from North

Mitrovica

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RESTITUTION DES LOGEMENTS ET DES BIENS ET RETOURDES DÉPLACÉS INTERNES AU KOSOVO

La création de la Direction des logements et des biens (DLB) et de la Commis-sion des demandes de dédommagement (CDD) au Kosovo reflète un intérêtcroissant de la part de la communauté internationale pour le rétablissement desdroits sur les logements et les biens au lendemain du conflit. En quelque troisannées de fonctionnement, ces institutions ont réussi à établir les droits depropriété concernant la quasi-totalité des 30.000 habitations dont la propriétéétait contestée. La DLB et la CDD font aujourd’hui figure d’exemple pour denombreuses autres régions ayant traversé une période de conflit. Si l’efficacitéde ces institutions est louable, l’un des objectifs initiaux essentiels – le retour despersonnes déplacées dans leur lieu d’origine – a dans une large mesure été laisséde côté. L’auteur met surtout l’accent sur deux échecs distincts de la com-munauté internationale concernant le fonctionnement de la DLB/CDD et de leurseffets possibles sur les retours: un manque de coordination entre les deuxinstitutions d’une part et les autres organismes œuvrant dans le domainedes retours d’autre part, et l’isolement des décisions concernant le droit à lapropriété par rapport à d’autres aspects d’une culture de respect du droit à lapropriété au Kosovo.

VIVIENDA, RESTITUCIÓN DE PROPIEDADESY RETORNO DE LAS PDI EN KOSOVO

El establecimiento de la Dirección de Vivienda y Propiedades y la Comisión deReclamaciones en Kosovo refleja la creciente atención internacional que suscitala restitución posconflicto de los derechos a la vivienda y propiedad. En aproxi-madamente tres años de operaciones, las instituciones han logrado determinarlos derechos de propiedad de prácticamente 30.000 propiedades residencialesobjeto de litigio. Por consiguiente, tanto la Dirección como la Comisión ante-dichas se consideran ejemplares y modélicas para otras esferas posconflicto. Sibien la eficacia de estas instituciones es encomiable, uno de los objetivos clave –el retorno de personas desplazadas a sus regiones de origen– no se ha tenidodebidamente en cuenta. El estudio antedicho se centra en dos distintos fracasosde la comunidad internacional con relación al funcionamiento de la Dirección deVivienda y Propiedades y de la Comisión de Reclamaciones en Kosovo y otrasinstituciones que trabajan con relación a los retornos y a la separación de lasdeterminaciones de derecho a la propiedad residencial de otros aspectos de laelaboración de un derecho a la propiedad que respete la cultura de Kosovo.

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