36 UN (2005). 37 Ibid.: Principle 1.2. 38 Ibid.: Preamble. 39 Ibid.: Principle 2.1. 40 Ibid.: Principle 2.2. 41 Ibid.: Principle 10.3.
that states should establish equitable, timely, independent, transparent, and non-discriminatory procedures, institutions, and mechanisms to enforce property restitution;42 provide all relevant agencies with adequate financial, human, and
other resources;43 establish guidelines pertaining to institutional organization, staff
training, investigation of complaints, enforcement, and appeals mechanisms;44 adopt
measures to ensure that women and children are able to participate on a fully equal basis in thisprocess and that the process is timely, accessible, and free of charge;45
ensure that all affected persons, regardless of whether they are in their countries of origin or in countries to which they have fled, are made aware of the process;46
develop restitution claims forms that are simple and easy to understand and use, and make them available inthe native languages of the people affected;47 ensure that
legal aid is provided to poor victims;48 and ensure the protection of traditional rights
of possession.49 The principles recommend that, in situations of mass displacement
where little documentary evidence exists as to ownership or rights of possession, the states adopt the conclusive presumption that persons fleeing their homes during a period of violence or disaster have done so for reasons related to violence or disaster and are therefore entitled to the restitution of their property rights.50
The efforts made by the international community for the restitution of IDPs’ property rights can not be considered independently from international politics. The mass migration movements following the Cold War forced the international community not only to make an effort to stop or prevent these movements but also to seek ways to reverse this migration. Emphasis on the property rights of IDPs should also be evaluated within this context. Although the formation of an entirely novel international legal mechanism for the restitution of the property rights of refugees and IDPs through the enactment of the Pinheiro Principles constitutes a significantly positive development, it is also of interest from the point of view of the political concerns it points to. In fact, the international community has not acted with equal determination in the identification and punishment of the perpetrators of human
rights violations against IDPs.
However, the advocacy of property rights on the basis of return, rather than human
rights is not only problematic in principle, but it is also questionable in light of the international experience. Although the international community demonstrated an
42 Ibid.: Principle 12.1. 43 Ibid.: Principle 12.3. 44 Ibid.: Principle 12.4. 45 Ibid.: Principle 13.2. 46 Ibid.: Principle 13.4. 47 Ibid.: Principle 13.7. 48 Ibid.: Principle 13.11. 49 Ibid.: Principle 15. 50 Ibid.: Principle 15.7.
unprecedented effort to prevent the intensive flow of refugees from Bosnia and Croatia to Western Europe in the beginning of the 1990s, undertook comprehensive legal measures, committed large financial resources for the restitution of property rights
to IDPs, and closely monitored the situation; the return process was not as speedy or as effective as expected. In Croatia, although the government took comprehensive legal measures for the restitution of properties or the payment of compensation to Serbian IDPs, for the provision of state aid toward the reconstruction of their homes, and for the provision of permanent alternative shelter when necessary, only a very small portion of the internally displaced Serbian minority has been able to return.51
On the other hand, Annex 7 of the Dayton Peace Treaty - which ended the civil war in Bosnia - foresaw the restitution of confiscated goods and properties of IDPs in order to achieve the return of ethnic/religious minorities displaced as a result of the war to a region where other ethnic/religious groups constituted the majority (Article 1). However, as the restitution of property rights linked to the return process did not achieve its objectives, the international community began to follow a new strategy that emphasized human rights.52 Nowadays Bosnia is considered to be one
of the few good examples where the property rights of IDPs are protected. One of the main reasons for the return of half of the refugees and IDPs (approximately one million people) in the ten years following the end of the war is believed to be the restitution ofproperties under the watchful eye of the international community.53
However, the optimistic view that the restitution process of property rights in Bosnia has had positive results on the return process is met with a degree of caution on the grounds that not all IDPs who are entitled to the restitution of their property have made a permanent return, and that many people have later either sold or rented out the property that had been restored to them.54 Therefore, merely developing a
legal framework for the restitution of property rights does not ipso facto guarantee return.
Although Bosnia and Croatia - in spite of the problems experienced in these countries - are considered as good examples in terms of the restitution of property rights of IDPs, it must be borne in mind that thesecountries are situated in Europe and that the main concern of European countries was to secure the return of refugees within their borders to the countries of origin. The main political concern behind the high amounts of international financial aid provided and the long-term international institutional presence in thesecountries was to guarantee European security and to enable refugee return. In this sense, whether or not Bosnia and Croatia constitute “good examples” for other countries should be carefully pondered. However, if the
51 Global IDP Project (2005a).