Agreement on Refugees and Displaced Persons (Annex 7 to Dayton Peace Agreement)

The result of the four-year armed conflict in Bosnia and Herzegovina was the largest expulsion of a population in Europe after World War II. According to the UNHCR and OSCE reports, more than 2.2 million persons had to leave their homes in Bosnia and Herzegovina. Out of that number 1.3 million people found shelter outside Bosnia and Herzegovina, in other countries,²⁴³⁸ and the rest found refuge in Bosnia and Herzegovina,²⁴³⁹ or in other places where they felt safe.²⁴⁴⁰ The temporal (interim) mechanisms for the acceptance of refugees abroad were in the favour of refugees, giving them the possibility to avoid any strict procedures for acquiring asylum status.²⁴⁴¹

The expulsion led to the displacement of the whole population and to the sad conclusion that the leaders of nationalist parties succeeded in achieving a temporary victory by carrying out the policy of ethnic cleansing. When it comes to the ethnic structure of Bosnia and Herzegovina before the armed conflict, the population was so interspersed as to resemble “a leopard’s skin”. After the conflict, large ethnically homogenous areas were created in the majority of state territory. At the end of December 2008, out of 2.2 million refugees and displaced persons there were 1,026,692 who succeeded in returning.²⁴⁴²

Annex 7 to the Dayton Peace Agreement in conjunction with Article II.5 of the BiH Constitution incorporated one of the major elements of the peace agreement, in other words it imposed an agreement which has annulled the ethnic cleansing and reinstated an ideal status quo ante of a multi-ethnic victory of the population in Bosnia and Herzegovina. With the aforementioned aim, Annex 7 to the Dayton Peace Agreement guarantees the right of all refugees and displaced persons to return to their pre-war homes, the restitution of property rights which were not exercised by free will, as well as compensation in cases where restitution is not possible.²⁴⁴³

The preconditions for obtaining compensation for damage have not been thus far defined. According to the judicial practice of the Human

Rights Commission within the BiH Constitutional Court, a person who is considered to be entitled to compensation for damage bears the burden of proof that the army or some other institution had caused damage to or destroyed his/her property.²⁴⁴⁴ Accordingly, a claim relating to compensation for damage cannot exist independent of the liability of state authorities.²⁴⁴⁵ According to the interpretation of the Human Rights Chamber, a claim in which compensation for damage is sought, pursuant to Annex 7 of Dayton Peace Agreement, is not of an objective nature, which means it is not independent of liability. Instead, State authorities are obliged to secure funds for that purpose in general terms and not in each individual case. Individual cases of compensation for damage are, accordingly, granted based on civil law. Such claims are regulated, for instance, by the Law on the Privatisation of State-Owned Apartments in the Republika Srpska,²⁴⁴⁶ where Article 54 obliges the municipalities to provide alternative accommodation for each returnee whose property was devastated during the armed conflict.²⁴⁴⁷

At the same time, Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska have undertaken to guarantee the right of return to refugees and displaced persons and the restitution of their property rights by ensuring legal and factual conditions for their safe return (Article I.2-4 and Article II of Annex 7 to the Dayton Peace Agreement have defined all of these obligations in a very specific manner). Thus, Annex 7 of the Dayton Peace Agreement contains very precise regulations, as was the case with the previous peace agreements.²⁴⁴⁸ The provisions on return from Annex 7 to the Dayton Peace Agreement have been supported by a clause in Annex 3 to the Dayton Peace Agreement which stipulates that a citizen who no longer lives in the municipality in which he or she resided in 1991 shall, as a general rule, be expected to vote, in person or by absentee ballot, in that municipality.²⁴⁴⁹

The UN High Commissioner for Refugees (UNHCR)²⁴⁵⁰ the International Committee of the Red Cross and the UN Development Program (UNDP)²⁴⁵¹ used to play a major role in the organisation of return. Returnees charged with a criminal offence, other than a serious violation of international humanitarian law as defined in the Statute of the International Tribunal for the Former Yugoslavia since 1 January 1991 or a common crime unrelated to the conflict, shall upon return enjoy amnesty.²⁴⁵² Article V of Annex 7 to the Dayton Peace Agreement obligates the signatory parties to provide information through the tracing mechanisms of the ICRC on all persons unaccounted for and to cooperate fully with the ICRC in its efforts to determine the identities, whereabouts and fate of those who are unaccounted for.

The return of refugees and displaced persons is a two-fold, challenging responsibility. On the one hand, it must be guaranteed that a returnee will not become a victim again if he/she returns to his/her pre-war place of residence, where the population structure has completely changed after the armed conflict – which is an often case – and this population is often hostile to the returnees of a different ethnicity. On the other hand, the return of people, as a basic pillar of support to lasting peace in the region, must not go in the opposite direction, thus undermining the peace process by making it possible for hostile groups, which continued to exist after the armed conflict and were ready to mobilise, to re-enter into conflict with the victims or with the attackers upon any re- encounters.²⁴⁵³ That is the reason why some observers considered that both the purpose and the process of return have been jeopardised.²⁴⁵⁴

In order for individuals to be able to return to their pre-war homes, they first had to overcome their traumatic experiences from the armed conflict. Their return depended considerably on whether they would be able to repossess their pre-war property, their houses or their apartments as owners or as occupancy right holders or as occupancy right holders’ household members. In the first post-war years it was hard to satisfy this requirement due to a number of relevant reasons. Moreover, in addition to the fact that the then applicable regulations were not so favourable when it came to property repossession, many other practical problems were also an obstacle to quick return.

There were expulsions of people or there were small to large-scale “voluntary” exoduses on all sides due to which thousands of people moved onto the real property or into the houses or apartments of other expelled persons. Accordingly, there are countless cases where the expelled persons wanted to return to their pre-war homes that were occupied (mostly) by displaced persons of another ethnic group who could not or did not want to move out.²⁴⁵⁵ Since the “exchange” of homes in the whole territory of Bosnia and Herzegovina was not simultaneously organised by the competent authorities, those who voluntarily left their homes or those who were evicted by “diligent” authorities, by irony of fate, were the first to find themselves on the streets or in refugee reception centres.

The restitution of property rights entailed difficult problems in the executive- legal practice which was primarily entrusted to the Entities. An additional problem was created by a number of considerably complicated domestic and international regulations. During the armed-conflict in BiH more than half of the housing space in the Federation of BiH and almost a third in the RS was devastated.²⁴⁵⁶ Out of the 1,207,693 housing units in BiH, around 452,000 housing units sustained damage during the armed conflict, out of which 805 were completely or considerably damaged.²⁴⁵⁷ The devastation of privately or socially owned properties continued after the armed conflict, too. With the aim of achieving private or “public” interests (mainly for the purpose of constructing new premises) municipalities were confiscating property owned by refugees or displaced persons by disregarding positive-legal regulations and then allocating those properties to third parties. This was done under the excuse that, due to the degree of damage, the premises were uninhabitable and there was a real threat to the community unless they were completely removed. After that, the “cleansed” areas were allocated to third parties. As for the returnees who were willing to return and reconstruct their homes, the competent authorities expropriated their property and thus, indirectly, prevented them from exercising their right to return.²⁴⁵⁸

Apart from the shortage of housing, the policy of expelling the “new population” or the competent institutions from the places of the so-called minority returns has undermined the return process. It is an interesting point that the political elites were against the return of other political ethnic groups into the areas in which they held power and control. Nevertheless, they were also against the policy of having their own respective ethnic groups remain in or return to the areas where they were, de facto, in the minority. The policy of ethnic cleansing thus continued and was consolidated. Sometimes the opposition against the return was manifested by the use of force, for instance: by setting on fire newly reconstructed houses in order to prevent minority returns; by organising public protests and marches; by “spontaneous” gatherings or demonstrations against returnees; by discrimination in employment policy; by restrictions on the freedom of movement; by a shortage of infrastructure for the post office, telecommunications or similar traffic between the Entities; by threats of criminal prosecution; by nationalistic media reports; and by refusal of police to offer necessary assistance in the evictions of members of the other majority group, etc.²⁴⁵⁹ Also, the resistance to enforce a decision of the Human Rights Chamber on the repossession of an apartment was a usual practice until 2000, mostly in the RS. Regretfully, prior to leaving property and handing it over, evicted persons frequently conducted the policy of scorched earth – often with the approval of the competent authorities – by way of completely destroying or robbing that property.²⁴⁶⁰

In order to ensure the restitution of property rights, regardless of the will of the signatories to Annex 7 to the Dayton Peace Agreement, the methods and instruments already incorporated in some other Annex to the Dayton Peace Agreement were used. As was the case with establishing the Interim Commission under Annex 3 to the Dayton Peace Agreement, the Constitutional Court of BiH under Annex 4 to the Dayton Peace Agreement, and the Human Rights Chamber and Ombudsman under Annex 6 to the Dayton Peace Agreement, a body was established consisting of international experts: the Commission for Displaced Persons and Refugees,²⁴⁶¹ comprised of three international and six domestic members. Upon its establishment, this commission was named the Commission for Real Property Claims of Displaced Persons and Refugees – CRPC, which means it was given the name which describes its task fairly accurately.²⁴⁶² Pursuant to Article XVI of Annex 7 to the Dayton Peace Agreement, after one extension of its mandate, responsibility for the financing and functioning of this commission was subsequently transferred from the competence of the Signatory Parties to fall within the competence of the BiH institutions.

After huge initial difficulties, the return process commenced functioning as late as in 1999, owing to the special authorities of the High Representative and the considerably enforced engagement of the relevant international agencies in the Property Legislation Implementation Plan (PLIP). From that moment the process progressed in a positive direction. As regards the aforesaid, a fairly important fact was that a legal framework was created for the repossession of abandoned properties, houses and apartments, providing also the possibility to obtain compensation for damage in an amount that was close to the properties’ market value, which made it possible for people to fight for their existence in some other place. While only 15% of 135,875 repossession claims were resolved by the end of July 2000, that number increased by June 2004 to 92.6% of resolved repossession claims. Of course, at that time the return related statistics indicated that in this respect there were huge differences between the two Entities.²⁴⁶³ Further, the returnees were receiving, at least formally, the support of religious leaders of other ethnic groups.²⁴⁶⁴ In 2007, the percentage of repossessed properties was very high. Namely, out of 211,784 repossession claims there have been 197,678 granted.

Nevertheless, the quota of property restitution is only one among the many aspects of the return process. It is not a guarantee of the sustainable return of all refugees and displaced persons. Thus, at the end of September 2007, despite the optimistic statistics, many refugees or displaced persons who managed to repossess their properties did not return to their pre-war homes. Out of 2.2 million persons who suffered damage, there were 446,215 refugees and 577,750 displace persons who actually returned. Despite the fact that they had managed to regain possession of their property, many of them left their homes again and some of them, in fact, never returned. Given the difficult economic, political or social situation, they are not to be blamed for not returning. Mainly the elderly and inhabitants of agricultural areas were willing to remain in their pre-war places of residence. Moreover, there was a tendency that people were choosing to live in places where they would not be an ethnic minority, which is a reflection of the hidden negative experiences from the previous conflict. Consequently, a large number of victims of eviction and ethnic cleansing, upon repossession of their property, sold that property and inhabited areas where they were members of the ethnic majority.²⁴⁶⁵