Rule 133. The property rights of displaced persons must be respected.
Volume II, Chapter 38, Section E.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
Special attention has been paid to the issue of the property rights of displaced persons in recent conflicts, first and foremost in the context of the conflicts in the former Yugoslavia, but also in Afghanistan, Colombia, Cyprus, Georgia and Mozambique. In all cases, this rule has been reaffirmed and its violation has been condemned.
Respect for the property rights of displaced persons with regard to property left behind is supported by a number of agreements.
The Guiding Principles on Internal Displacement states that “property and possessions left behind by internally displaced persons should be protected against destruction and arbitrary and illegal appropriation, occupation or use”.
The three regional human rights treaties guarantee the right to property, subject to restrictions imposed by law in the public interest.
The arbitrary deprivation of displaced persons of their property would violate this right. For example, a violation of the right to respect for the peaceful enjoyment of property of displaced persons was found by the European Court of Human Rights in Loizidou v. Turkey
in 1996 and by the Human Rights Chamber of the Commission on Human Rights of Bosnia and Herzegovina in the Turundžić case
In the context of the conflicts in the former Yugoslavia, it has been stated in treaties and other instruments that statements and commitments regarding property rights made under duress are null and void.
This has also been affirmed in resolutions adopted by the UN Security Council, UN General Assembly and UN Commission on Human Rights.
The Agreement on Refugees and Displaced Persons annexed to the Dayton Accords provides that “all refugees and displaced persons … shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them”.
Following condemnation for failing to implement this provision, in particular by the UN Commission on Human Rights in 1996, the Federation of Bosnia and Herzegovina and the Republika Srpska adopted new laws safeguarding the property rights of displaced persons.
Under the Agreement on Refugees and Displaced Persons annexed to the Dayton Accords, an independent Commission for Real Property Claims of Displaced Persons and Refugees was established “to receive and decide any claims for real property in Bosnia and Herzegovina, where the property has not voluntarily been sold or otherwise transferred since April 1, 1992, and where the claimant does not now enjoy possession of that property”.
A similar commission was set up after the conflict in Kosovo. There was also criticism with respect to Croatia’s implementation of the Agreement on Refugees and Displaced Persons annexed to the Dayton Accords. In particular, in a resolution adopted in 1995, the UN Security Council urged Croatia “to lift any time-limits placed on the return of refugees to Croatia to reclaim their property”.
In a subsequent letter, Croatia informed the Chairman of the UN Commission on Human Rights that legislation governing the property rights of refugees and internally displaced persons had been amended and the time limit for the return of persons who had abandoned their property had been lifted.
Colombia’s Law on Internally Displaced Persons recognizes that displaced persons have the right to retain ownership and possession of abandoned property.
Its Constitutional Court ruled to this effect in 1996.
Beyond specific laws and procedures to ensure respect for the property rights of displaced persons, it should also be noted that the legislation of most, if not all, countries in the world guarantees a form of protection against arbitrary or illegal seizure of property which can be said to constitute a general principle of law. As a result, the protection of property rights must usually be enforced through the existing domestic court system, based on domestic law.
Alleged violations of this rule have been condemned, in particular by the UN Security Council with respect to Croatia and by the UN Commission on Human Rights with respect to Bosnia and Herzegovina.
The Commission on Human Rights condemned violations of the property rights of displaced persons because they “undermine the principle of the right to return”.
This point was also made by the UN Sub-Commission on Human Rights in a resolution adopted in 1998 on housing and property restitution in the context of the return of refugees and internally displaced persons.
The fact that violations of property rights may impede implementation of the right to return (see Rule 132) further supports the customary nature of this rule.