Bosnia and Herzegovina + 2 more

Refugee return and real property restitution in Bosnia-Herzegovina - lessons learned for the Palestinian case

As Israel prepared to go to the polls for the third time in four years and - most likely - re- elect Ariel Sharon to lead a government that not only rejects the rights of Palestinian refugees but has carried out unprecedented military attacks on the Palestinian people in the 1967 occupied West Bank and Gaza Strip and a campaign of de-legitimization against Palestinians inside Israel, BADIL hosted a series of lectures and debates aimed at raising a rights-based alternative to the current political status quo.
Public lectures and debates on the experience of refugee return and real property restitution in Bosnia-Herzegovina (BiH), organized by BADIL in the third week of January 2003 and hosted by Palestinian refugees, internally displaced Palestinians, the wider Palestinian community and interested Israelis, followed an earlier study tour of Palestinian refugee activists to Bosnia-Herzegovina in June 2002. The guest speaker was Paul Prettitore, Legal Advisor to the Organization for Security and Cooperation in Europe (OSCE) in Bosnia-Herzegovina, and a former legal advisor to the Office of the High Representative in BiH.

Lectures and debates were held in the Kalandia refugee camp with the Union of Youth Activities Centers, in Shafr Amr (Galilee) with the Association for the Defense of the Rights of the Internally Displaced, in Eilaboun (Galilee) with the Arab Center for Alternative Planning, and in Tel Aviv with Zochrot, an Israeli initiative aimed at raising awareness and recognition of the Palestinian Nakba (1948) and refugee rights among the Israeli public. Unfortunately, invited Palestinian officials did not attend the public lecture in the Kalandia camp, and a separate meeting was held with officials from the PLO Department of Refugee Affairs, the PLO Negotiations Affairs Department, and the PA Ministry of Planning and International Cooperation. Additional meetings with Palestinian human rights organizations inside Israel, including Adalah and the Arab Association for Human Rights, served to strengthen coordination and cooperation around a common Palestinian refugee rights strategy across politically imposed dividing lines.

Due to ongoing military curfew and severe restrictions on freedom of movement, BADIL was unable to host lectures in other refugee camps across the West Bank and in the Gaza Strip. The public lecture in Kalandia camp, however, was recorded and is scheduled for broadcast on local television in other West Bank regions. In addition to lectures and debates, a 20-minute video entitled "Experiencing the Right of Return - Palestinian Refugees Visit Bosnia," documenting BADIL's June 2002 refugee study visit to Bosnia-Herzegovina was broadcast in the Bethlehem region during the week. The Association for the Defense of the Rights of the Internally Displaced (ADRID), one of the four winners of the 2002 Body Shop Human Rights Awards, hosted a visit to the destroyed Palestinian village of Saffuriya near Nazareth. Internally displaced Palestinians from the village, many of who now live within eyesight of their village in a neighborhood of Nazareth, are unable to return and repossess their property.

Several themes emerged over the course of the lectures on lessons learned from the experience of return and real property restitution in Bosnia-Herzegovina. First, the two most important elements in the final peace agreement (1995 Dayton Peace Agreement) that brought an end to the conflict were the SPECIFIC INCLUSION OF LEGAL PRINCIPLES (i.e., refugee rights) and the establishment of INTERNATIONAL ENFORCEMENT MECHANISIMS. Annex 7 of the agreement, which sets out durable solutions for refugees and displaced persons, specifically affirms the right of all refugees and displaced persons to return to their homes and repossess their properties. Those persons not wishing to return are entitled to compensation. In Bosnia- Herzegovina, the international community recognized that a durable peace was not possible without refugee return and restitution. This, and the fact that similar basic principles have been included in all major peace agreements addressing refugee problems worldwide in the last 10 years, suggests that there is no reason why these principles should not be included in a final peace agreement between the PLO and Israel. Therefore, academics, policymakers and individuals who argue that these principles are not applicable to the Palestinian case must be pressured to EXPLAIN WHY the PALESTINIAN CASE IS THE EXCEPTION to the rule.

In addition to a clear affirmation of the universal legal principles governing the crafting of durable solutions for refugees and displaced persons, the Dayton Peace Agreement (Annex 10) also established an enforcement mechanism to supervise the implementation of the civilian aspects of the peace agreement, including refugee return and property restitution - the Office of the High Representative (OHR). OHR was accorded broad powers to counter obstruction by local officials who were not interested in seeing refugees and displaced persons return to their homes of origin and repossess their properties. These powers included the authority to cancel discriminatory laws, draft new legislation consistent with international human rights law, impose legislation, and remove public officials who continually obstruct implementation of the peace agreement. These powers were used to cancel abandoned property laws and impose new legislation that allowed refugees and displaced persons to repossess homes and properties. To date 70 percent of property claims in BiH have been resolved - i.e., refugees and displaced persons have been able to repossess their properties. According to Prettitore, the international community expects that more than 95 percent of the total number of claims (260,000) should be resolved in the next several years. Without broad enforcement powers, return and restitution would not have been possible.

The Dayton Peace Agreement (Annex 6) also established a Commission on Human Rights comprised of a human rights ombudsman and a Human Rights Chamber for the protection of basic human rights including return and real property restitution. A total of 16 international human rights instruments applicable to Bosnia- Herzegovina are appended to Annex 6. In addition, the INTERNATIONAL COMMUNITY USED A VARIETY OF ECONOMIC AND POLITICAL LEVERAGE TO ENFORCE implementation of refugee return and restitution. International assistance and investment for post-war reconstruction, for example, was conditioned on implementation of the Dayton Peace Agreement. Membership in the COUNCIL OF EUROPE was conditioned on implementation of refugee return and property restitution. The Bosnian government was required to comply with a list of 18 conditions, including implementation of property laws that would allow refugees and displaced persons to return to their homes of origin, prior to membership in the Council of Europe. Ironically, the Council of Europe has concluded (Parliamentary Assembly Resolution 1156, 23 April 1998) that return in the Palestinian case is "politically and practically difficult to achieve" and therefore recommends that the issue must be resolved through "resettlement to permanent accommodation." What makes the Palestinian case more politically and practically difficult than the Bosnian case is not clear. Future membership in the EUROPEAN UNION is also used as a political level to facilitate Bosnian compliance with international human rights standards and principles of good governance.

Another important lesson learned from Bosnia- Herzegovina is that COMPENSTATION IS THE LEAST PRACTICAL of all solutions for refugees and displaced persons. Even though Annex 7 of the Dayton Peace Agreement and the new Constitution of Bosnia-Herzegovina annexed to the agreement affirm the right of refugees and displaced persons to compensation, no compensation has ever been paid out. International officials recognized that compensation posed too many difficult problems to be an effective durable solution for refugees and displaced persons (e.g., valuation of properties). Moreover, even though the peace agreement provided for the establishment of a compensation fund to be financed by the Bosnian government and international donors, the fund was never established. The Bosnia government did not have financial resources to contribute to the fund and international donors were not interested in financing individual compensation. Donors were much more interested in reconstructing homes, rebuilding roads, hospitals, schools and other public infrastructure. Refugees and displaced persons who did not wish to return to their homes of origin were able to repossess their property and then place the property on the open market for sale or exchange. In the end this procedure provided refugees and displaced persons with more money than they might have received from a state or international compensation process and it proved to be a less complicated and more efficient process. With dividends from the sale of their properties, refugees and displaced were able to build or purchase a new home and start a business elsewhere. This process, however, did not provide a full remedy for those refugees and displaced whose homes had been destroyed and did not wish to return. These claims may yet be adjudicated before the Human Rights Chamber, a process likely to take many years in the future.

Another theme that emerged during the lectures was the complete lack of international political will in the Palestinian case to recognize and enforce basic legal principles and refugee rights - i.e., return and restitution - applied in all other refugee cases. In the Bosnian case, international political will stemmed from the fact that western European countries did not want to absorb large numbers of refugees and therefore had an interest in their early return; a moral desire to reverse the process of ethnic cleansing in Bosnia; a political commitment to Bosnia as a unified state as a means of blocking ethnic partition and irredentist movements in neighboring states; and, general support for the basic rule of law (e.g., all major human rights instruments are attached to the peace agreement and considered as the primary source of law). The focus on political strategies was especially strong in the debate with Palestinian refugee community activists in the Kalandia camp (West Bank), where the lack of international political will is felt especially strong in the context of the collapse of the Oslo process and the second intifada. While comparative studies, such as Bosnia, provide a g reat deal of lessons learned from the point of view of principles, mechanisms and enforcement, MUCH GREATER ATTENTION MUST BE GIVEN TO COMPARATIVE POLITICAL STUDIES and the search for POLITICAL STRATEGIES to encounter international rejection of the basic le gal principles, rights, and the rule of law in the Palestinian case.

The lectures also provided a first opportunity to engage in discussion and debate with Israelis on the right of return and property restitution. Discussion topics included questions of why and how many refugees actually chose to return to their homes of o rigin in Bosnia, the rights of secondary occupants of refugee homes, documentation of Palestinian refugee properties for restitution claims, mechanisms for reconciliation, and the gener al lack of awareness in Israeli society of the Palestinian refugee issue. While there was no detailed discussion of the exact parameters of durable solutions for Palestinian refugees, there was a general consensus that a durable peace is not possible unle ss Israeli society confronts its role in the ethnic cleansing of Palestine in 1948 and the right of every refugee to choose to return to her/his home of origin is recognized. Moreover, BADIL emphasized the need for an Israeli address that deals specifical ly with the refugee issue from a rights-based perspective in order to facilitate systematic Palestinian-Israeli discussion and debate on the Palestinian refugee issue.


BADIL Resource Center aims to provide a resource pool of alternative, critical adn progressive information on the queston of Palestinian refugees in our quest to achieve a just and lasting soluton for exiled Palestinians based on their right of return. PO Box 728, Bethlehem, Palestine; Email:; Website:; Tel/fax: -2-2747346; -52-360769