International Journal of Refugee Law Advance Access originally published online on August 17, 2009
International Journal of Refugee Law 2009 21(3):421-452; doi:10.1093/ijrl/eep012
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Getting the Property Questions Right: Legal Policy Dilemmas in Post-Conflict Property Restitution in Kosovo (1999–2009)
* European Masters Degree in Human Rights and Democratisation; Head of the Property Section of the OSCE Mission in Kosovo, 2005-8
** LLM in International Human Rights Law, Essex University; Legal Advisor for Property Issues in the OSCE Mission to Bosnia and Herzegovina, 2002-4; and a consultant on property restitution in Kosovo
The restoration of property rights after a conflict involves key legal policy decisions, such as using the domestic courts or creating ad hoc commissions, which determine the extent to which the interests of displaced persons are protected. In 1999, following the experience of Bosnia and Herzegovina, the United Nations Interim Administration in Kosovo undertook the difficult task of restoring possessions lost by the persons displaced as a consequence of the Kosovo conflict, as well as those of persons affected by the discriminatory laws and policies of the Milo
evi
regime during the previous decade.
This paper describes and evaluates comparatively the most important legal policy dilemmas (use of the domestic courts, types of claims addressed and remedies provided) involved in the process and examines how they were addressed by the international administration. In this sense, the paper evaluates the design of the first mass claims mechanism, the Housing and Property Directorate, an internationally run body competent for conflict related residential property claims, and the impact of this on the implementation of its mandate. The article then analyzes the legal policy dilemmas and the internal legislative turmoil that took place within the United Nations Mission in Kosovo during the transformation of the Housing and Property Directorate into the Kosovo Property Agency, a hybrid international/domestic body competent for the resolution of private agricultural and commercial property claims linked to the conflict.
The authors aim to identify and understand lessons that may be used when designing future post-conflict property restitution mechanisms to ensure both fairness and efficiency. They argue that a better pre-design situation analysis, preferably at the ‘micro’ level, is needed to address the needs of the victims. The authors advocate for more comprehensive property rights protection regimes, which do not centre on the ‘return home’ policy and that take into account the interests of informal dwellers. They consider that more effective decision making is necessary at the policy level. A clearer understanding of the nature of mass claims mechanisms and of the need for procedural exclusion of the domestic judiciary in certain cases will help prevent future delays in justice and benefit the victims.