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<<previous | index | next>> BACKGROUND: THE RIGHT TO RETURNPeople who flee their homes as a result of war are entitled to return to their home areas and property, a right known as the “right to return.” The right to return to one's former place of residence is related to the right to return to one's home country. This latter right is expressly recognized in the Universal Declaration of Human Rights and international human rights conventions.13 The right to return to one’s place of origin within one’s country, or at least the obligation of states not to impede the return of people to their places of origin, is implied. For example, article 12 of the International Covenant on Civil and Political Rights (ICCPR) recognizes the right to choose freely one's own place of residence, which incorporates the right to return to one's home area.14 In some cases, the right to return to one's former place of residence is also supported by the right to family reunification and to protection for the family. Recognizing these various rights, the U.N. Sub-Commission on the Promotion and Protection of Human Rights has reaffirmed “the right of all refugees ... and internally displaced persons to return to their homes and places of habitual residence in their country and/or place of origin, should they so wish.”15 Numerous resolutions of the U.N. General Assembly and of the Security Council as well as several international peace agreements also recognize the right to return to one's home or property.16 International law provides for restitution as a remedy for persons who have lost their homes or property because they were victims of war crimes, crimes against humanity or other serious human rights violations. The Commission on Human Rights has often recognized the need for property restitution as an effective remedy for forced displacement.17 In 1996, the European Court of Human Rights recognized the right of a displaced Greek Cypriot to reclaim her property, despite the fact that she had not resided there for twenty-two years.18 The Rome Statute of the International Criminal Court (ICC) authorizes restitution as a remedy for victims of war crimes and other international offenses, stating that “[t]he Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.”19 When displaced persons are unable to return to their homes because their property has been destroyed or claims against a current occupant are unsuccessful, they are entitled to compensation. International human rights instruments do not specifically mention compensation for deprivation of the use of property, but the right to compensation is embraced in the right to an effective remedy for human rights abuse, contained in ICCPR article 2(3).20 In the Cyprus case mentioned above, the European Court of Human Rights recognized the plaintiff's right to compensation for the years that she had been denied access to her property.21 While the ethnic Serbs displaced during and after the war in Croatia have a right to return to their homes and receive compensation for their losses, it is important that this right is implemented in a manner that does not cause additional human rights abuses. The Tudjman government had brought ethnic Croat populations to the territories formerly inhabited by Serbs, and many of those ethnic Croats now live in the former homes of Serb refugees and displaced persons. The right to repossess private property must be balanced against any rights these secondary occupiers may have in domestic or international law, using impartial and efficient procedural safeguards.22 In Bosnia and Herzegovina, property claims administrators have attempted to resolve these disputes in a manner that respects the rights of the second occupier as well as the first possessor.23 The government of Croatia has a key role to play in fulfilling the right of ethnic Serb refugees to return. This report discusses in detail the domestic laws of Croatia and their adherence to international standards, as well as the implementation of those laws since the end of the war in 1995 up to the present. 13 Article 13 (2) of the 1948 Universal Declaration of Human Rights (UDHR) states that “Everyone has the right to leave any country, including his own, and to return to his country.” Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948). This language is reflected in Article 5 of the 1965 International Convention on the Elimination of all Forms of Racial Discrimination (CERD) which guarantees “the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: . . .” These include in article 5 (d) (ii) “The right to leave any country, including one's own, and to return to one's country.” International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, entered into force Jan. 4, 1969. 14 International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, article 12. Croatia ratified the ICCPR in October 1992. 15 See Sub-Commission on the Promotion and Protection of Human Rights, Housing and Property Restitution in the Context of the Return of Refugees and Internally Displaced Persons, Resolution 1998/26. 16 With regard to Bosnia,seeU.N. Security Council resolutions 947 (1994) and 859 (1993).Seealso Report of the Committee on the Elimination of Racial Discrimination, U.N. Doc. A/50/18 (1995) (requiring that “persons be given opportunity to safely return to the places they inhabited before the beginning of the conflict.”). With regard to Kosovo, see U.N. Security Council resolutions 1199 (1998), 1203 (1998), 1239 (1999), and 1244 (1999). With regard to Israel,seeU.N. General Assembly resolutions 3236 (1974), 3089(D) (1974). With regard to Cyprus,seeU.N. General Assembly resolutions 253 (1983), 30 (1979), 3212 (1974), and U.N. Security Council resolutions 774 (1992), 361 (1974). With regard to Cambodia,seeAgreements on a Comprehensive Political Settlement of the Cambodia Conflict (1991). With regard to Guatemala,seeAgreement on Identity and Rights of Indigenous Peoples (1995) and Agreement on Resettlement of the Population Groups Uprooted by the Armed Conflict (1994). With regard to Rwanda,seeArusha Peace Agreement (1993). 17 See, e.g. Commission on Human Rights Resolutions 2000/41 and 1999/33 (recognizing the “right to [property] restitution … for victims of grave violations of human rights.”). In addition, Annex 4 of the Dayton Accord, the peace agreement ending the 1991 war in the former Yugoslavia, recognizes the right of all displaced persons to return to their former homes. 18 See Loizidou v. Turkey, 23 EHRR 513 (1996). This decision was based on article 1 of protocol 1 of the European Court of Human Rights (ECHR), which provides that “every natural or legal person is entitled to the peaceful enjoyment of his possessions.” 19 See Rome Statute of the International Criminal Court, UN Doc. No. A/CONF. 183/9, (July 17, 1998), 37 I.L.M. 999, article 75, para. 1; online at http://www.un.org/law/icc/statute/romefra.htm (retrieved June 17, 2003) (hereinafter “Rome Statute”). 20 Article 17(1) of the ICCPR states that “[no] one shall be subjected to arbitrary or unlawful interference with his … home.” Article 2(3)(a) obligates each state party “to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.” 21 See Loizidou v. Turkey, 81 Eur. Ct. H.R. 1807 (1998). 22 For example, in 1998, the Sub-Commission on the Promotion and Protection of Human Rights urged “all States to ensure the free and fair exercise of the right to return to one's home and place of habitual residence by all refugees and internally displaced persons and to develop effective and expeditious legal, administrative and other procedures to ensure the free and fair exercise of this right, including fair and effective mechanisms designed to resolve outstanding housing and property problems.” SeeSub-Commission on the Promotion and Protection of Human Rights, Resolution 1998/26, August 26, 1998. 23 For example, the Dayton Agreement set up the Commission for Real Property Claims (CRPC) and the Office of the High Representative Ombudsperson to resolve property disputes.See Dayton Agreement, Annex 7 (1995).
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