Home Sweet Home? Restitution in Post-Conflict Bosnia and Herzegovina
| Date | 01 March 2009 |
| Published date | 01 March 2009 |
| Author | Antoine Buyse |
| DOI | 10.1177/016934410902700102 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 27/1, 9–26, 2009.
© Netherlands I nstitute of Human Ri ghts (SIM), Printed in the Net herlands. 9
PART A: ARTICLES
HOme sWeeT HOme?
ResTITuTIOn In POsT-COnflICT
bOsnIa and HeRZegOVIna
A B*
Abstract
e loss of housing for large groups of people is oen one of the destructive consequences
of armed conic t. In the post-conict phase, those who tr y to reclaim their homes
face many legal challenges. An emerging human right to hous ing restitution can be
an important tool in achieving successf ul housing restitut ion. e inclus ion of such a
right in the peace treaty concluded at th e end of the war in Bosnia and Herzegovina
shows that legal recognition of people’s housing claims is a core a spect of post-conic t
reconstruction . If implemente d in a way which complies with the rule of law, the
recognition of a right to housing res titution can be an important contribution to
structural peace in f ragile States.
1. INTRODUCTION
In 1993, in the midst of the war that raged over Bosnia and Herzegovina1 in the 1990s,
Esfak Pletilić a nd his family le their house in the sma ll town of Gradiška and ed to
Germany. Later, when other parts of Bosnia were declared safe, they were sent back to
Bosnia, but without the possibility of returning to their own home, for lack of physical
safety. It was on ly in 1997 that they dared to return to their former home town, now
situated in the Republik a Srpska, only to discover that their house was now inhabited
by Serbia n refugees from Croatia . ese are the facts a s described in a decision of
the Human Ri ghts Chamber for Bosnia and Herzegovi na (hereaer: the Chamber or
* Assistant professor and resea rcher, Netherla nds Ins titute of Human Rights (SIM), Utrecht
University, the Netherlands. is art icle is based on the aut hor’s PhD thesis entitled Post-C onict
Housing Restitution. e European Human Righ ts Perspe ctive, w ith a Case Study on Bosnia and
Herzegovina, Antwerp, Intersentia, 2008. An earlier version appeared in: De Lange, Roel (ed.),
Aspects of Transitional Ju stice and Huma n Rights, P roceedings of the 2006 Annual Conference of
the Net herlands Scho ol of Huma n Rights, Nijmegen, 20 07, pp. 53–64. All internet sites were last
accessed on 1 Febru ary 2009.
1 For reasons of style and brevit y, I shall use Bosnia in stead of Bosnia and Herze govina in this tex t.
Antoine Buyse
10 Interse ntia
HRC).2 e description of the facts also shows that the Plet ilić family was Bosniak –
that is Muslim. Since the displaced persons liv ing in their house were Serbs and the
local institutions in t hat part of Bosnia were Serb-dominated, one may easily imagine
how dicu lt it was for Pletilić to try a nd regain h is former house, especially i n the
wake of large-scale ethnic cleansing. He was not the most welcome of returnees, to say
the least. is example is just one out of thousands of cases of housing restitution that
arose in the aermath of the armed conict wh ich had ra ged over Bosnia between
1992 and 1995.
In this ar ticle I will use the Bosnian process of housing restitution as a case study
of the problems of societies in the t ransition from armed con ict to p eace. Sooner
or later, many post-conict countr ies revert to conict, unle ss lingering unease
and sou rces of con ict are taken away. Since housing is oen one of people’s main
economic, mater ial and also psychological concerns and since it aects so many, it
is ver y important to solve housing issues soon aer a conic t has come to an end.
In addit ion, housing restit ution is al so one of the key requirements to faci litate the
return of refugees a nd displaced persons.
Post-conict justice consists of two separ ate, but related aspects, 3 which I will call
substantive and structur al. Substantive post-conict justice focuses on the undoing
or punishing of past wrongs. In its retributive form this is criminal justice. In its
restorative form it is aimed at restoring t he situation before the outbreak of armed
conict. Housing restitution is thus a form of substantive pos t-conict jus tice. I will
argue that restitut ion also contributes to the second category : structural post-conict
justice. Whereas subst antive justice faces t he past, structural justice looks forwa rd
into the futu re. It tries to establish, reform, or restore n ational systems of justice. Put
dierently, it stresses the impor tance of the rule of law.
In the next sections of th is article, I will rst focus on a possibly emergi ng
right of housing restitution. Subse quently, I will provide a succ inct overview of
the situation in Bosnia at the end of t he war and the relevant parts of the Day ton
Peace Agreement. Finally, I wil l turn to the development of t he relatively successfu l
Bosnian housing restitution process. Although initia lly restitution was slow and faced
many obstr uctions, a concer ted eort of the international actors involved helped to
quicken the pace of restitution. Du ring the process, the emphasis shied f rom return
to restitution and from prag matism to an approach focussed on the rule of law and
human rights. Due to t hese cha nges, the large majority of restitution claims was
decided upon and was implemented withi n a decade aer Dayton.
2 Human Right s Chamber for Bosnia a nd Herzegov ina, Es fak Pletili ć and others vs the Republika
Srpska, 10 Sept ember 1999, CH/98/659 a nd others. e d ecisions of the Chamber (in Eng lish) can
be found at: ww w.hrc.ba.
3 Bassiouni, M. Cherif (ed.), Post-Con ict Justice, Transnat ional Publishers, A rdsley, 2002, p. xv.
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