THE RIGHT TO COMPENSATION FOR VIOLATIONS OF PROPERTY RIGHTS

 

The effects of the dissolution of the Yugoslav Republic, which began with the secession of Croatia and Slovenia in 1991, are still being felt today.  This paper addresses the international community’s response to the mass expulsion of a population in Bosnia-Herzegovina (“BiH”) and specifically the right of Bosnian refugees who wish to remain outside of the borders of BiH (“non-returnees”) to compensation for interferences with property during the course of hostilities and for current interferences with the enjoyment of their property within BiH. 

BiH declared its independence from the Yugoslavia on April 6, 1992.[1]  What ensued was four years of ethnic cleansing that resulted in the mass displacement of millions of Bosnians.[2] Approximately 2.2 million persons were expelled from their homes and became either refugees or internally displaced persons.[3]  A person receives the status of refugee when “as a result of events occurring before or after 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable, or owing to such fear, is unwilling, to avail himself of the protections of his country; or who, not having a nationality and being outside the country of his former habitual residence before such events, is unable or, owing to such fear, is unwilling to return to it.” [4]   A displaced person is one who is forced from his home but remains within his country.[5] These definitions were adopted at the 1951 United Nations Convention Relating to the Status of Refugees, of which the former Republic of Yugoslavia was a party.[6]

The signing of the Dayton Accords in 1995 technically ended the war.  One of the major goals of the Dayton Accords was to re-create a multi-ethnic BiH.[7] Consistent with this goal is the encouragement of the return of refugees.[8]  Although the language of the Dayton Accords appears to be neutral on its face and applicable to all Bosnian citizens, in fact, it greatly favors returnees.[9] The Dayton Accords provide to refugees who return to BiH additional rights compared to those who remain in other countries.[10] Article 1, Section 1 of Annex 7 states:All refugees and displaced persons have the right to freely return to their homes of origin.[11] They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them.”[12]  The operative word in this section is: “restored.” Only returnees may have their property restored to them or be compensated for property which cannot be restored. Those who do not return lose the compensation option.

The current situation for BiH is bleak.  It is not surprising that so many refugees do not wish to return.  Currently there are 305,000 persons displaced within BiH and only 1 million of the 2.2 million refugees who fled have returned to BiH.[13]  The unemployment rate in BiH ranges from thirty percent to eighty percent and fifty percent of BiH’s population is on or below the poverty line.[14]  Only half of BiH’s 500,000 destroyed homes have been rebuilt.[15] Additionally, fifty percent of the population lives without healthcare and eighteen percent live without electricity.[16]  An article from the UNCHR depicts the bleak situation for Bosnian returnees:  “In a stark reminder of the deadly legacy of war, eight people [were] killed by a landmine and booby traps after returning to their homes in Bosnia and Herzegovina…Ten days after this incident, an entire family of five was wiped out by a mine explosion as they tried to clear farming land near their home in the hamlet of Skuljevici in northern Bosnia…Two days later in the same area of the country, two brothers – aged seven and three – were killed by a hand grenade they had found in a barn.”[17]  

Another problem plaguing BiH is the fear of persecution and discrimination among returnees who have now become members of a minority.  This is the result of the division of BiH into two separate entities pursuant to the Dayton Accord, each with a distinct ethnic majority.[18]  One Sarajevo professor argued that the Dayton Agreement should be renamed as the “Frankenstein Agreement” because it has divided the country into two distinct ethnic entities, thereby solidifying the war’s ethnic cleansing policy.[19]  In a recent incident, 16 year-old Meliha Duric, a Bosnian Muslim returnee living as a minority in the Republika Srpska, was murdered while in her own home.[20]  Implicated in this crime are the current tensions between majority and minority citizens in the separate entities. 

Clearly, the incentive for many refugees to return is minimal; these dire conditions have prevented half of the prewar population from returning to their original homes.[21]  In fact, the Assistant High Commissioner for the United Nations High Commission for Refugees “stressed that it would be an illusion to believe that all refugees from the region will eventually return home, since many by now have acquired citizenship elsewhere and become productive members of their new countries.”[22]  

WHY COMPENSATE?

Securing the right to return for Bosnian refugees and integrating Bosnian citizens back into society has been the focus of international organizations.[23]  For example, at the “3x3 Initiative” conference in Sarajevo, representatives from BiH, Croatia and Serbia & Montenegro along with the UNHCR, the Organisation for Security and Cooperation in Europe and the European Union, agreed to put an end to the “refugee chapter” in the Balkans by the end of 2006 through voluntary return or local integration of refugees in their host countries.[24]  Although successful local integration would require compensation, the issue was essentially overlooked during the conference with representatives only asking for limited data on refugee numbers in Croatia and Serbia & Montenegro.[25]   These organizations and the representative countries have ignored the right to compensation for those refugees who remain outside Bosnian borders and will not return.  This disregard is attributable to the international community’s fear that compensating refugees will provide them with even less incentive to return, thus defeating the goal of recreating a multi-ethnic BiH.[26] The fear that compensation will defeat the goal of recreating a multiethnic BiH is well founded. Yet, the rights of non-returnees must not be ignored.  Many refugees have resettled outside of Bosnian borders and wish to remain there rather than return home where dismal conditions threaten their well-being. The state cannot force refugees to return and the only form of redress for the deprivation of their property is compensation.[27]  Not only is compensation essential to the well-being of refugees but it will also alleviate the burdens placed on countries of asylum.[28]  Further, enforcing obligations of compensation creates an awareness of the consequences of expelling mass populations. This will  hopefully reduce the chances of it happening again.

Ahmet Zulic, a Bosnian refugee currently living in the United States, fled from the city of Banja-Luka, leaving behind his home and most of his possessions. He asserted that most refugees fled to countries of asylum with next to nothing. In his 1992 report, the United Nations Special Rapporteur on the former Yugoslavia described how Bosnians were forced to surrender their homes to soldiers during the ethnic cleansing.[29]  The report stated that the Bosnians “could either sell their homes at ridiculous prices or give the keys to the municipality for the duration of their absence…[which] was supposedly forever.”[30]  It is irrefutable that compensation would ease the financial burden facing non-returnees in their countries of asylum.

Not only would refugees be better off after receiving financial assistance, but the countries were refugees sought asylum would also be better off.  Many of these countries provided assistance programs for the refugees often at the cost of overlooking the needs of their own citizens.  For example, pursuant to 1951 U.N. Convention Relating to the Status of Refugees “[t]he contracting states shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.”[31]  As refugees become financially stable, they will be able to further contribute to the asylum country’s economy and the assistance programs can again focus on the citizens who were overlooked.

Although it is an optimistic declaration, there is a possibility that a country on the verge of conflict will avoid causing a mass exodus if it will be obligated to compensate refugees who lost property as a result.  Even if this potential obligation does not compel a country to avoid forcing out a population, the country may attempt to lessen the number of people fleeing to reduce the amount of compensation later required.  As the Special Rapporteur noted in his 1982 study on human rights and mass exoduses: “violations of human rights is the major cause of mass exoduses.”[32]  If human rights violations have strict legal consequences, massive flows of refugees may be averted.[33]  The goal is to force states that caused mass exoduses to compensate the victims thus providing a bona fide threat to states on the verge of human rights violations.  

 

LEGITIMATE FOUNDATIONS FOR A RIGHT TO COMPENSATION

The importance of compensation is hardly debatable. Yet, the right to compensation is less clear.  Annex 7 of the Dayton Accords states: “[a]ll refugees and displaced persons have the right to freely return to their homes of origin. [Those who return] have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them.”[34]  Clearly, those who wish to remain outside the border of BiH have no means of redress under Annex 7.  The right to compensation for the non-returnees must be found elsewhere.  There are two such theories which may provide the non-returnees with a means of obtaining compensation for lost property: the moral theory and the legal theory.

MORAL THEORY

A moral theory providing a right to compensation assumes that even if a there is no legal precedent to a right to compensation, a moral right may exist.  This moral right assumes that public policy, more specifically the values and morals that motivate public policy, may frequently be the sole reason for redressing a wrong.  Rhoda Howard-Hassmann succinctly lays out a foundation for moral based reparation in her paper on moral integrity and reparation in Africa.[35]  She states that to accept moral reparation, one must first understand the idea of moral integrity to which all human beings are entitled.[36]  This moral integrity encompasses moral value and moral competence.[37]  The moral value of one individual is equal to that of another individual regardless of gender, age, race or social status.[38]  Moral competence is the capacity of human beings to distinguish moral rights from moral wrongs.[39]  Citizens of a state are stripped of their moral integrity when they are deprived of their equal moral worth through other’s moral incompetence; when this wrong occurs, moral reparation is necessary.[40]  In fact, Howard-Hassmann asserts that when country is shown to have direct responsibility for depriving humans of their basic rights, they bear a moral responsibility to compensate them.[41] 

Perhaps the largest “ morally” motivated reparation agreement was between German corporations and victims of forced labor camps during the Nazi regime.[42] Following World War II, many Holocaust victims brought suits in the United State’s courts against German Corporations alleging conversion of property, false imprisonment and unjust enrichment.[43]  For various reasons, the majority of the suits were unsuccessful.[44]  The Holocaust victims’ argument rested on the notion that reparation should come in the form of financial compensation because the corporations had used the labor camps to take something of value from innocent people.[45]  This value included not only the labor provided to the corporations, but also the moral integrity of the victims.[46]  Although it is difficult to put a price on moral integrity, the victims must receive full compensation.  

 In the 1990’s the unification of Germany and the increased access to Eastern German corporations’ records prompted a new wave of cases brought by Holocaust victims.  With the flood of evidence against the German corporations came acknowledgment by the corporations of wrongdoings during the war.[47]  While the corporations accepted moral responsibility they asserted that the German government was responsible for monetary reparations.[48]   The corporations claimed they had no legal obligation on the ground that pursuant to peace treaties signed at the end of the war, all claims by victims were to be directed to the German government.[49]  In 2000, following years of unsuccessful legal claims by Holocaust victims in the United States, “a consortium of German corporations agreed to support a $5 billion fund to pay compensation to people who were forced to work involuntarily and without pay in their factories during the Second World War. The agreement--which is not a settlement to a lawsuit--is remarkable...”[50]  The agreement reached between the corporations, the German government and the victims was embodied in the “Foundation for Remembrance, Responsibility and the Future.”[51] The Foundation provided that “[t]hose who suffered at the hands of German Industry during the Nazi era, including those who worked as slave or forced laborers for the Nazi regime, were subjected to medical experimentation, were held in a "kinderheim" (children's home), had property "aryanized", stolen, or damaged, or whose insurance policies went unpaid will be eligible to recover.”[52]

The German corporations agreed to raise the money on a voluntary basis, thus “preserving their position that they have no legal obligation to compensate individuals for lost wages, but are doing so based wholly on moral grounds instead.”[53]  This inevitably raised the question of why the corporations agreed to compensate the victims if they were not legally obligated to do so.  It is naïve to believe the corporations were solely motivated by moral reasons. In reality the corporations partially used this moral façade to hide their true motivations. As part of the agreement, the payments were dolled out in exchange for future immunity from Holocaust victim suits.[54]  Additionally, the corporations were pressured from the German government and community to make the proper reparations.[55] Thus, although the corporations accepted moral responsibility, their motivations for providing reparations were somewhat “morally forced.”

This example of post-war reparation gives hope to Bosnians that they may have means of redress other than solely legal avenues.  It is important to realize that urging Serbia to recognize its moral obligations to non-returnees is by no means a suggestion that Bosnians relinquish their legal claims.  Legal redress will likely be more successful as Serbia still harbors feelings of animosity toward BiH and likely will not accept moral responsibility as willingly as the German corporations.   If legal redress becomes a futile process, placing political pressure on the Serbian government to award payments in exchange for the relinquishment of future claims (even if the claims have little chance of success), may be the last option for non-returnees to obtain compensation.

LEGAL FOUNDATION FOR THE RIGHT TO COMPENSATION

A non-returnee may have a legal right to compensation, as well as a moral right.  This legal right can be asserted only if Serbia has a duty to provide compensation to non-returnees.[56] Serbia has such a duty only if it is imposed by a primary source of law: a treaty, a Serbian statute or customary international law. Furthermore, for compensation to be successful, the duty imposed on Serbia must be enforceable.

In the past, international instruments imposed a duty on states to afford remedies for gross violations of human rights or international crimes.[57]  In the context of post-war reparations, one of the first international attempts at securing compensation for those who lost property during World War II was the Luxembourg Agreement between the Federal Republic of Germany, the State of Israel, and the Jewish Claims Conference (1952).[58] This agreement awarded payments to Israel in recognition of the fact that the “nation bore a heavy financial burden of providing for the many victims of Nazi persecution who had settled there.”[59]  What the Agreement lacked was a payment system for individuals; instead the payments were provided to the State of Israel and then filtered through the Israeli administration before reaching the hands of victims of Nazi persecution.[60]

Many instruments designed for purposes of reparation have refrained from granting individuals a right to compensation.[61]  Instead, they obligated certain domestic bodies to ensure such a right.[62]  This was partly the case because the volume and complexity of claims that would be filed if individuals were allowed to assert claims against a state for human rights violations would be overwhelming.[63]  Furthermore, many states have enjoyed sovereign immunity from claims by brought by private individuals in the state’s courts or in foreign courts.[64] This immunity, however, is not absolute and may be stripped from states in cases arising out of: commercial transactions; contracts of employment; personal injury; damage to property and more.[65]

Although traditional international law established legal relationships only among states, the advent of the Human Rights Movement has provided individuals with rights to assert private claims against states.[66]  Rights to compensation must be addressed on an individual level because, for example, a state that receives compensation to alleviate the burden of housing refugees may retain that money within its administration. Instead of offending states and international organizations providing compensation at the macro level, asylum residents should be individually compensated.  Compensating individuals will nevertheless alleviate burdens on states as the funds will assist those asylum residents in integrating into society on economic and social levels.  Furthermore, property rights are considered fundamental rights of an individual.[67]  Thus, violations of those rights should be redressed on an individual level.

Following World War II many international organizations and countries began laying the foundation for legal redress for human rights violations and it appeared that the international community’s view was that human rights were analogous to legal rights.[68]  In fact, during the Human Rights Movement the international community legitimized many basic human rights by codifying the rights in legal doctrines.[69]  This transition of human rights into legal form gained momentum following World War II while the international community was still outraged at the atrocities that had been committed during the war.[70]

Following WWII the Human Rights Movement gained momentum. Outraged at the numerous atrocities committed during the war, the international community reacted with several legal doctrines that incorporated basic human rights.[71] The International Covenant on Civil and Political Rights (“Covenant”) and the Universal Declaration of Human Rights and the European Convention on Human Rights and Fundamental Freedoms outline basic universal human rights [72]  

The goal of the Covenant was to address rights “derive[d] from the inherent dignity of the human person.”[73]  The International Covenant is binding on its signatories, but there are doubts on its legal force.[74]  For example, the Covenant provides for a Human Rights Committee with jurisdiction over claims, but only if those states have accepted the competence of the Committee.[75]  Thus far only fourteen states have accepted the Committee’s jurisdiction; neither BiH nor Serbia is among the fourteen.[76]  The Universal Declaration on Human Rights guaranteed rights ranging from the right to be free from arbitrary arrest to the right to not be arbitrarily deprived of one’s property.[77] The Universal Declaration of Human Rights is not legally binding but has the force of opinion juris, which is commonly defined as a state’s belief that it is acting in a certain way because it is legally bound to do so.[78]   The European Convention on Human Rights and Fundamental Freedom carries the most weight. It is legally binding on its signatories and unlike the International Covenant which requires that the claim allege wrongdoing that occurred within the offending state’s territory, the Convention provides individuals with the opportunity to seek redress from violations committed by a state outside of its borders.[79]

BRINGING SUIT AGAINST SERBIA IN THE EUROPEAN COURT OF HUMAN RIGHTS

 

Following the signing of the Dayton Accords, domestic and international human rights organizations, abiding by and representing many of the covenants and resolutions previously discussed, operated within Bosnia with little government interference.[80] The organizations were able to investigate human rights abuses and publish their findings.[81]  The political and legal weight of these organizations within the Bosnian government, however, was minimal.[82]  The organizations were unable to persuade Bosnian authorities to address the majority of the violations.[83]  Many Bosnian citizens recognized that necessary reparations for violations would be impossible if the Bosnian government would not acknowledge the abhorrent human rights abuses that occurred and were still occurring.[84] In years since the war, close to 90% of the returnees’ claims for property have been resolved within BiH.[85]  Yet, virtually all the human rights violations experienced by non-returnees have been ignored.[86] The right to be compensated for property lost or interfered with during the war (and still today), must be addressed. The lack of the cooperation by the Bosnian government to address these concerns leads to the next viable source of compensation and more importantly the most culpable source: Serbia.  The European Convention on Human Rights (“the Convention”) is a human rights organization that will assist the non-returnees with legally binding Serbia to pay reparations.

The Convention was created to “represent the first steps for collective enforcement of certain rights set out in the Universal Declaration.”[87] The Convention set up the European Court of Human Rights (“ECHR”) to enforce the obligations entered into by the contracting states.[88]  Complaints could be brought against contracting states by other contracting states or by individuals.[89]  Originally, recognition of individual claims was optional and could only be exercised against States that allowed private claims.[90]   Protocols 9 and 11 of the Convention were late additions that made acceptance of private claims mandatory.[91]   Not only are private claims allowed pursuant to the Convention, but also claims by non-national individuals against a contracting State.[92]

FILING A CLAIM PURUSANT TO ARTICLE 1, PROTOCOL 1

The ECHR decides cases concerning violations of the European Convention on Human Rights and the judgments are binding on its signatories, which include Serbia.[93]  Each Chamber is composed of seven judges from the contracting States.[94]   Supervision over the execution of judgments lies with the Committee of Ministers of the Council of Europe (“Committee”).[95]  The Committee determines whether the offending State has taken adequate remedial measures to comply with the judgments.[96]  Once judgment has been rendered, the Committee informs the offending State of steps necessary to pay just satisfaction, including compensation.[97]

A non-returnee’s claim against Serbia will likely be successful if filed in the European Court on Human Rights based on a violation of Article 1, Protocol 1: the right to peaceful enjoyment of possessions.[98]  Much like courts in the United States, the ECHR places great weight on precedent.[99] Therefore, it is important that the non-returnees support claims with case-law.  Loizidou v. Turkey[100], decided in the ECHR in 1996, will provide a strong foundation for the non-returnees claims. It is important to reiterate the cause of the non-returnees’ situation and where the desire for compensation stems from before drawing analogies between Loizidou’s situation and that of the non-returnees’.

BACKGROUND OF LOIZIDOU V. TURKEY

               In Loizidou v. Turkey[101], the ECHR held that the the government of Turkey interfered with the peaceful possession of the Loizidou’s property. Loizidou was the owner of plots of land in Kyrenia, Northern Cyprus.[102]  Prior to Turkish occupation of Northern Cyprus, Loizidou had begun construction on land which she had intended to use as her home.[103]  Turkish forces invaded Northern Cyprus in 1974 and prevented Loizidou from gaining access to her property and “peacefully enjoying” it.[104]  In March of 1989, Loizidou and other Greek Cypriot refugees participated in a march with the aim of asserting their right to return to their homes.[105]  Loizidou stated in her claim that she had been prevented in the past, and was still prevented, by Turkish forces from returning to Kyrenia and "peacefully enjoying" her property.[106]  She asserted that the Republic of Turkey was obligated to provide just satisfaction for violation Article 1, Protocol 1.[107] Article 1, Protocol 1 states: "Every natural or legal person is entitled to the peaceful
 enjoyment of his possessions.  No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” [108]
WHO COMMITTED THE VIOLATIONS: TURKEY OR TRNC?
               The Republic of Turkey conceded that Loizidou was deprived of the use and enjoyment of her property, it declared that this deprivation did not constitute an act within its jurisdiction pursuant to Article 1 of the convention.[109]  Article 1 states:  The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.[110]  Essentially, Turkey argued that deprivation of property occurred outside the border of Turkey and therefore the Convention did not apply. The ECHR states that “[i]n their submission, all Convention enforcement organs, which have jurisdiction conferred upon them, enjoy jurisdiction retroactively to the time of ratification of the Convention unless there has been an express and unambiguously worded restriction ratione temporis.”[111]   
               Loizidou was established as the owner of the property and retained the right to assert her possessory interest.[112]  She contended in her complaint that as the lawful owner of the property, the denial of access to her property and the ensuing loss of control were imputable to the Turkish government. The court noted that this case is exceptional in that the authorities who had interfered with Loizidou’s peaceful enjoyment of her property were not the authorities of the government in which the property was situated.[113]  To determine whether Turkey was responsible for the violation within Cyprus the court looked to State responsibilities under international law. [114] The court held that under Article 1, a country’s “jurisdiction” (i.e. where it can be held liable for violations of the Convention) is not limited to the areas within a contracting states territory.[115]  Consequently, “the responsibility of Contracting States can be involved by acts and omissions of their authorities which produce effects outside their own territory.”   The court found that state responsibility may also arise when that state uses lawful or unlawful military action to effectively take control of a region outside the borders of its national territory.[116]  Turkey’s responsibility fell into this specialized category of international law.[117] 
               The Turkish government denied that its occupation of Northern Cyprus caused the barrier between Loizidou and her property.[118]  The government asserted that it was the TRNC, an autonomous and independent region, which prevented Loizidou gaining access to her property.[119]  The court had little difficulty imputing the violation on Turkey. The court concluded that the sheer number of active Turkish troops in Northern Cyprus was evidence that Turkey was responsible for the actions and policies of the TRNC.[120] Therefore, Turkey did have “jurisdiction” under Article 1 of the Convention and was required to secure all the enumerated rights and freedoms of the Convention to the residents of Northern Cyprus. 
In the subsequent judgment on just satisfaction, the Court awarded Loizidou both pecuniary and nonpecuniary damages, the latter “in respect of the anguish and feelings of helplessness and frustration which the applicant must have experienced over the years in not being able to use her property as she saw fit.”[121] 

SIMILAR SITUATION FOR NON-RETURNEES

 

In 1992 BiH declared independence following a 2 day referendum where 99.7% of Bosnian citizens voted for independence.[122] At Milosevic’s command, the Yugoslav National Army, a predominately Serbian force, responded to the Bosnians’ independence declaration with ‘ethnic cleansing.’[123]  During this time, Bosnian- Muslims and -Croats fled the country for fear of persecution, leaving behind their homes and possessions.  Serbia claimed that the ethnic cleansing in BiH was attributable to Republika Srpska, an independent political entity. Similarly to Loizidou, the ECHR will likely find that “the responsibility of Contracting States can be involved by acts…of their authorities which produce effects outside their own territory.”[124] Furthermore, the ECHR noted that state responsibility arises when a state uses unlawful military action to take control of a region outside of its borders.[125]   Clearly, Serbian authorities infiltrated parts of BiH and used military force within BiH. 

Since the signing of the Dayton-Accords, which officially ended the war, many Bosnian citizens have remained in countries where they sought asylum.[126]  Since the division of BiH into two entities, Republika Srpska and the Federation of Bosnia- Herzegovina, many returnees are now ethnic minorities.[127]  The thought of living in a region as a minority and in a region still deeply divided along ethnic lines provides refugees with an incentive to remain outside Bosnian borders.[128]   Not only were Bosnians deprived of the peaceful use of their property when forced to leave the country, but also the inevitable impediments facing the refugees upon return are so great that many refugees are unwilling to return.[129]  Clearly, Bosnians have been deprived (and are still deprived) of the peaceful enjoyment of their property.

ACCOUNTABILITY?

 

            Similar to the Turkish invasion in Northern Cyprus, the Yugoslav National Army, a predominately Serbian force, infiltrated BiH.  During and after the war many soldiers of the Yugoslav Army and residents who were forced out of their homes elsewhere, inhabited refugees’ homes without the consent.[130]  Ethnic cleansing included forced evictions by soldiers who would then give the property to persons of their own ethnic background.[131]  Beginning with the ITCY indictment of Milosevic, the international community has called on Serbia to accept responsibility for the human rights violations committed in the former Yugoslavia.[132]  One author states: “[a]s the primary perpetrator of the conflicts in the former Yugoslavia, Serbia must show a willingness to recognize and acknowledge the atrocities committed, particularly in Bosnia…[o]nly by purging the ethnic nationalism formulated by the Milosevic regime – and the violence that brought so   much suffering to the region – can Serbia be reintegrated…”[133]  It is clear that Serbia must be held accountable for human rights violations committed during the war in Bosnia. 

SUCCESS?

 

 

While enforcement of the non-returnees’ right to compensation is essential, it may be the most difficult aspect of reparation for several reasons. The lack of political will on the part of Serbia will likely impede the process of compensating the Bosnian citizens.[134]  An additional difficulty with enforcing post-war reparations is the possibility that the success of one suit will lead to a dramatic increase in the volume of claims and will encumber the reparation process.[135] Furthermore, it will be difficult to value property that was destroyed during the conflict.[136]  Not only did BiH have a weak recording system in place prior to the war, but also the property itself has been reduced to rubble.[137]  These difficulties, however, should not prevent the non-returnees from filing claims with the ECHR; there is undeniable potential for successful resolutions.  The case of Loizidou v. Turkey is a perfect example of a claim by an individual against a foreign state under Article 1, Protocol 1, that was successful in the ECHR.[138]  Additionally, many of the difficulties with post-war reparation claims have been addressed and overcome in agreements following World War II.[139]  The Federal Republic of Germany pursuant to the 1954 Transition Agreement, paid out, to date, a total of over 100 billion Deutsch Marks to victims of Nazi persecution forced to leave the homes, as compensation for lost property, dignity and liberty[140].

 

 



[1] Ray Wilkinson, The Dayton Miracle, 3 Refugees 140, 7 (Sept. 1, 2005), available at http://www.unhcr.ch/cgi-bin/texis/vtx/publ/opendoc.pdf?tbl=PUBL&id=433bded34. visited October 2, 2005.

[2] Id. at 8.

[3] Id. at 10.

[4] 1951 United Nations Convention Relating to the Status of Refugees 189 U.N.T.S. 150,  as amended by the 1967 Protoco, (hereinafter “UN Convention on Refugees”),. http://www.unhchr.ch/html/menu3/b/o_c_ref.htm

[5] Id.

[6] Refugee Protection: A Guide to International Law; UNHCR, 11 -12 http://www.unhcr.ba/protection/hp.pdf

[7] General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 7 [hereinafter Dayton Accords], Dec. 14, 1995, Bosn. – Herz. –Croat. –Yugo., 35 I.L.M. 75

[8] Id.

[9] The Dayton Accords addresses solely the right of returnees to be compensated for property that cannot be returned to them. See Dayton Accords, supra note 6.

[10] Id.

[11] Dayton Accords, supra note 6, Art. 1.

[12] Id.

[13] Paddy Ashdown, A Remarkable Success – but more work to be done: Bosnia’s High Representative assesses 10 years of peace., 3 Refugees 140, 7 (Sept. 1, 2005), available at http://www.unhcr.ch/cgi-bin/texis/vtx/publ/opendoc.pdf?tbl=PUBL&id=433bded34. visited November 15, 2005.

[14] Dayton Miracle supra note 1 at 8.

[15] Id.

[16] Id.

[17] Landmine, booby traps kill eight Bosnian returnees in a fortnight, UNHCR available at  http://www.unhcr.ch/cgi-bin/texis/ vtx/news/open doc.htm?tbl=NEWS&id=3e720b164&page=new. visited Novermber 10, 2005.

[18] Id.

[19] Id.

[20] Bosnia murder of a 16-year-old Bosniak returnee ; http://www.unhcr.ch/cgi-bin/texis/vtx/news/opendoc.htm?tbl=NEWS&id=3b4f08754&page=news

[21]Dayton Miracle supra note 1 at 10.  

[22] http://www.unhcr.ch/cgi-bin/texis/vtx/news/opendoc.htm?tbl =NEWS&id=41fe4b4b4& page=news. visited November 10, 2005

[23] Balkan governments seek to close refugee chapter in region.  http://www.unhcr.ch/cgi-bin/texis/vtx/news/opendoc.htm? tbl=NEWS&id=41fe4b4b4&page=news.  visited November 5, 2005.

[24] Id.

[25] Id.

[26]  Eric Rosand, The Right to Compensation in Bosnia: An Unfulfilled Promise and Challenge to International Law, 33 Cornell Int’l L.J. 113, 121 (2000) (discussing the post Dayton Accords period when the international community aggressively sought to promote a mass return of refugees in the face of significant demographic changes that resulted from the war).

[27] See Dayton Accords, supra note 7, Annex 7, art. I. “All refugees…have the right freely to return to their homes of origin. The Parties shall take necessary steps to prevent activities within their territories which would hinder or impede safe and voluntary return of refugees…” See Also Luke T. Lee, The Right to Compensation: Refugees and Countries of Asylum, 80 A.J.I.L 532, 536 (1986) (stating that “the most common remedy for breach of an international obligation is adequate compensation” which is the payment of a sum that would restore the refugee to the position the refugee would be in had the breach not occurred).

[28] Declaration on Territorial Asylum, G.A. Res. 2312, U.N. GAOR, 22nd Sess., Supp. No. 16, at 81, U.N. Doc. A/6716 (1967)  (“No person…shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any state where he may be subjected to persecution”).

[29] Right to Compensation, supra note 25 at 119.

[30] Right to Compensation, supra at note 28.

[31] UN Convention on Refugees, supra note 4, art. 23.

[32] See International Cooperation to Avert New Flows of Refugees,  U.N. Doc. E/CN.4/1503 (1982)

[33] Id.

[34] Dayton Accords, supra note 6, art. I.

[35] RHODA HOWARD-HASSMANN, MORAL INTEGRITY AND REPARATIONS FOR AFRICA (University of Denver Graduate School of International Studies and Institute on International Human Rights, Working Paper No. 16, 2001).

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Id.

[42] Anthony J. Sebok, UN-Settling the Holocaust (Aug. 28, 2000) at  http://writ.corporate.findlaw.com/sebok/20000828.html. visited November 2, 2005.

[43] Id

[44] Id;  See also In re Nazi Era Cases Against German Defendants Litigation (“In re Nazi Era Cases”), 129 F.Supp 2d 370, 377, 378 D.N.J (2001) (granting dismissal of claim against a German Corporation where previous decisions determined that post-war claims were exclusively constructed by the political branches and under the political question doctrine, it was not the place of the courts to resolve those claims against German corporations. The political question doctrine: where adjudication of a dispute would cause a court to resolve political questions, the proper course for the court is to dismiss the action).

[45] UN-settling the Holocaust, supra note 41.

[46] Id.

[47] Id.

[48] Id.

[49] In re Nazi Era Cases, supra note 43.

[50] UN-settling the Holocaust, supra note 41.

[51] In re Nazi Cases, supra note 43 at 379.

[52] Id.

[53] UN-settling the Holocaust, supra note 41. 

[54] Id.

[55] Id.

[56] Zach Whitney, Regulatory Takings: Distinguishing between Privilege of Use and Duty, 86 Marq. L.R. 617, 643 (2002) (The right and duty correlation was articulated by Wesley Newcomb Hohfeld during the 19th century. Hohfeld argued that rights and duties must be correlated, or neither has a purpose. For example, if A has a right against B, the right is meaningless unless B has a duty to honor A’s right. If B has no corresponding duty, then B can act in any manner toward A because B has no duty that acts as a restriction. Hohfeld generally defines the correlatives in terms of relationships between individuals). In the realm of international law, rights and duties are frequently defined as between states; yet this does not imply that rights and duties can never be between states and individuals.

[57] Rudolf Dolzer, The Settlement of War-Related Claims: Does International Law Recognize a Victim’s Private Right of Action? Lessons After 1945, 20 Berkeley J. Int’l L. 296, 306 (2002)

[58] German Embassy, Washington D.C., German Compensation for National Socialist Crimes available at http://www.germany-info.org/relaunch/info/archives/background/ns_crimes.html

[59] Id.

[60] Id.

[61] Right to Compensation, supra note 25.

[62] Id.

[63] Id.

[64] Foreign Sovereign Immunities Act 28 USC § 1604

[65]  28 USC § 1605 (2002) General exceptions to the jurisdictional immunity of a foreign state.

[66] The European Convention on Human Rights, which encompasses the Universal Declaration on Human Rights, grants the European Court on Human Rights authority to adjudicate private claims brought by individuals. Mar. 20, 1952, 213 U.N.T.S. 262.

[67] See G.A. Res. 2200A, U.N. GAOR , International Covenant on Civil and Political Rights available at http://www.unhcr.ch/html/menu3/b/a_ccpr.htm. visited November 18, 2005.

[68] German Compensation for National Socialist Crimes, supra note 57.

[69] See supra note 65.

[70] Following World War II, the drafters of the U.N. Charter sought to achieve “international cooperation in solving international problems… and to promote and encourage respect for human rights and fundamental freedoms.” U.N. Fact Sheet No. 20, available at http://www.ohchr.org/english/about/publications/docs/fs20.htm. visited November 20, 2005.

[71] Id.

[72] Id.

[73] supra note 69.

[74] Louis B. Sohn, The New International Law: Protection of the Rights of Individuals Rather than States, 32 Am. U.L. Rev. 1, 17 (1982).

[75] Id.

[76]  International Covenant on Civil and Political Rights, Dec. 16, 1966, S.Exec. Doc. D, 999 U.N.T.S. 171, 176.

[77]  Universal Declaration on Human Rights,  G.A. Res. 217A, U.N. Doc. A/810 at 56 (1948).

[78] The New International Law: Protection of the Rights of Individuals Rather than States, supra note 72.

[79]  See Loizidou v. Turkey, 81 Eur. Ct. H.R. 1803 (1998) (finding plaintiff was entitled to compensation from Turkey for violations committed in the Northern Cyprus).

[80] Bosnia and Herzegovina Country Reports on Human Rights Practices, U.S. Department of State, Released by the Bureau of Democracy, Human Rights, and Labor February 25, 2004 available at http://www.state.gov/g/drl/rls/hr rpt/2003/27829.htm. visited November 10, 2005.

[81] Id.

[82] Id.

[83] Id.

[84] Id.

[85] Country Operations Plan: Bosnia and Herzegovina, Executive Committee Summary (2006), available at  http://www.unhcr.ch/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=RSDCOI&id=433912e22&page=home

[86] The Right to Compensation, supra note 25.

[87] European Convention on Human Rights and Fundamental Freedoms (hereinafter “Convention”), Nov. 4, 1950, 213 U.N.T.S. 262.

[88] Id. at art. 19.

[89] Loizidou, supra note 78.

[90] Convention, supra note 86.

[91]  Id.

[92]  Loizidou, supra note 78.

[93] Convention, supra note 78, art. 19.

[94] Convention, supra note 78, art. 40

[95] Convention, supra note 78, art. 46

[96] Id.

[97] Id. art. 52, 53

[98] Article 1, Protocol 1,Convention, Mar. 20, 1952, 213 U.N.T.S. 262.

[99] Loizidou, supra note 78 (Chambers relinquishing jurisdiction when there is a risk of departing from existing case-law).

[100] Loizidou, supra note 78

[101] Id.

[102] Id. at 13, 14

[103] Id. at 14

[104] Id. at 14-16

[105] Id. at 16, 17

[106] Id. at 17

[107] Id.

[108] Id. at 48.

[109] Id. at 51.

[110] Id. at 51. (Section 1 applies to the Protocols as well).

[111] Id. at 52.

[112] Id. at 55.

[113] Id. at 52.

[114] Id.

[115] Id.

[116] Id.

[117] Id.

[118] Id. at 54.

[119] Id.

[120] Id. at 56.

[121] Human Rights Watch: Compensation for the Use of Property http://www.hrw.org/reports/2003/croatia0903/6 .htm#_ftn197

[122] Bosnian-Serbs were not included in this percentage because they boycotted the referendum.

[123] Bosnia and Herzegovina Country Reports on Human Rights Practices,  supra note 79

[124] Loizidou supra note 78

[125] Id.

[126] Human Rights Watch. supra note 121

[127] Id.

[128] Id.

[129] Id.

[130] Lynn Hastings, Implementation of Property Legislation in Bosnia-Herzegovina, 37 Stan. J Int’l L. 221, 222 (2001)

[131] Id. at 221

[132] Mark S. Ellis, Elizabeth Hutton,  Policy Implications of World War II Reparations and Restitution as Applied to the Former Yugoslavia, 20 Berkeley J. Int’l L. 342, 349-351 (2001

[133] Id. at 352

[134] Id. (Serbia still sees itself as a victim mistreated by the world community).

[135] The Right to Compensation, supra note 26.

[136] Id.

[137]  Implementation of Property Legislation in Bosnia-Herzegovina,  supra note 27 at 226.

[138] Loizidou v. Turkey, supra note 79.

[139] UN-Settling the Holocaust, supra note 41.

[140] Id. (200 billion DM in today's value ($104 billion)).