Practice Relating to Rule 133. Property Rights of Displaced Persons

Protocol to the European Convention on Human Rights
Article 1 of the 1952 Protocol to the European Convention on Human Rights provides:
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 
Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Paris, 20 March 1952, Article 1.
American Convention on Human Rights
Article 21(1) of the 1969 American Convention on Human Rights states: “Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society.” 
American Convention on Human Rights, adopted by the OAS Inter-American Specialized Conference on Human Rights, San José, 22 November 1969, also known as Pact of San José, Article 21(1).
African Charter on Human and Peoples’ Rights
Article 14 of the 1981 African Charter on Human and Peoples’ Rights provides:
The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws. 
African Charter on Human and Peoples’ Rights, adopted by the Eighteenth Ordinary Session of the OAU Assembly of Heads of State and Government, Nairobi, 27 June 1981, OAU Doc. CAB/LEG/67/3 rev.5, Article 14.
Kampala Convention
Article 9(2) of the 2009 Kampala Convention provides that States Parties shall:
Take necessary measures to protect individual, collective and cultural property left behind by displaced persons as well as in areas where internally displaced persons are located, either within the jurisdiction of the State Party, or in areas under their effective control. 
African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, adopted in Kampala, Uganda, 23 October 2009, Article 9(2)(i).
Article 11(4) of the Convention provides: “States Parties shall establish appropriate mechanisms providing for simplified procedures where necessary, for resolving disputes relating to the property of internally displaced persons.” 
African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, adopted in Kampala, Uganda, 23 October 2009, Article 11(4).
Recommendation on the Tragic Situation of Civilians in Bosnia and Herzegovina
Paragraph 4(a) of the 1992 Recommendation on the Tragic Situation of Civilians in Bosnia and Herzegovina provides that each party to the conflict guarantees to those who leave temporarily the territory it controls that “their goods, assets and belongings will be respected and protected”. 
Recommendation on the Tragic Situation of Civilians in Bosnia and Herzegovina, adopted at the invitation of the International Committee of the Red Cross and signed by Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representative of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Mate Boban (President of the Croatian Democratic Community), Geneva, 1 October 1992, § 4(a).
Guiding Principles on Internal Displacement
Principle 21 of the 1998 Guiding Principles on Internal Displacement stipulates:
1. No one shall be arbitrarily deprived of property and possessions.
2. The property and possessions of internally displaced persons shall in all circumstances be protected, in particular, against the following acts:
(a) Pillage;
(b) Direct or indiscriminate attacks or other acts of violence;
(c) Being used to shield military operations or objectives;
(d) Being made the object of reprisal; and
(e) Being destroyed or appropriated as a form of collective punishment.
3. Property and possessions left behind by internally displaced persons should be protected against destruction and arbitrary and illegal appropriation, occupation or use. 
Guiding Principles on Internal Displacement, presented to the UN Commission on Human Rights by the Special Representative of the UN Secretary-General on Internally Displaced Persons, UN Doc. E/CN.4/1998/53/Add.2, 11 February 1998, Principle 21.
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Bosnia and Herzegovina
Since 1997, the Federation of Bosnia and Herzegovina has adopted new property laws safeguarding property rights in order to implement the 1995 Agreement on Refugees and Displaced Persons annexed to the Dayton Accords. These laws mainly deal with abandoned property and occupancy rights. It has also adopted instructions, claim forms and information sheets. 
Bosnia and Herzegovina, Federation, Law on Sale of Apartments with Occupancy Rights, 1997; Law on the Cessation of the Application of the Law on Temporary Abandoned Real Property Owned by Citizens, 1998; Law on the Cessation of the Application of the Law on Abandoned Apartments, 1998.
Bosnia and Herzegovina
In 1998, the Republika Srpska of Bosnia and Herzegovina adopted a new property law safeguarding property rights in order to implement the 1995 Agreement on Refugees and Displaced Persons annexed to the Dayton Accords. This law mainly deals with abandoned property. It also adopted instructions, claim forms and information sheets. 
Bosnia and Herzegovina, Republika Srpska, Law on the Cessation of the Application of the Law on the Use of Abandoned Property, 1998.
Colombia
According to Colombia’s Law on Internally Displaced Persons (1997), IDPs have the right to retain ownership and possession of abandoned property. 
Colombia, Law on Internally Displaced Persons, 1997, Article 18.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Georgia
Georgia’s Law on Internally Displaced Persons (2014) states:
Article 6. Definition of an IDP [internationally displaced person]
1. A citizen of Georgia or a stateless person with a status residing in Georgia shall be considered as an IDP, if he/she was forced to leave his/her permanent place of residence because of threat to his/her or his/her family member[s’] life, health or freedom caused by the occupation of the territory by a foreign state, aggression, armed conflict, mass violence and/or massive human rights violations and/or he/she cannot return to his/her permanent place of residence due to the above mentioned reasons.
Article 15. Protection of IDP Property Rights in the[ir] Places of Permanent Residence
1. The State recognizes the IDPs’ right to restitution, which is hereditary, on the real estate they left in the places of permanent residence.
2. The State shall take all possible measures to protect the property owned and/or possessed by an IDP in the places of permanent residence which he/she had to leave due to reasons as referred to in paragraph 1, Article 6 of this Law, from robbery, destruction, arbitrary and unlawful use and appropriation.
3. After elimination of [the] circumstances as referred to in paragraph 1 of Article 6[,] in case[s] whe[re an] IDP returns to his/her place of permanent residence, the State shall take all possible measures to ensure that the real estate which an IDP had lawfully owned and/or possessed before displacement and w[as] forced to leave, is returned to a lawful owner and possessor.
4. The right envisaged by paragraph 1 of this Article shall be maintained in … cases wh[ere] durable housing has been provided to IDPs. 
Georgia, Law on Internally Displaced Persons, 2014, Articles 6(1) and 15.
Peru
Peru’s Regulations to the Law on Internal Displacement (2005) states:
Internally displaced persons who return to their places of habitual residence or who have resettled in another part of the country have a right to:
i) the protection … , to the extent possible, of their property and possessions which they left behind. 
Peru, Regulations to the Law on Internal Displacement, 2005, Article 6(i).
Colombia
According to Colombian case-law, IDPs have the right to retain ownership and possession of abandoned property. 
Colombia, Constitutional Court, Constitutional Case No. C-092, Judgment, 7 March 1996.
Colombia
In 2006, during the consideration of the third periodic report of Colombia before the Committee on the Rights of the Child, a representative of Colombia stated: “There … [are] also provisions [in the law] to avoid the alienation of property while the owner … [is] displaced.” 
Colombia, Statement before the Committee on the Rights of the Child during the consideration of the third periodic report of Colombia, 4 July 2006, UN Doc. CRC/C/SR.1148, § 42.
Egypt
In 1996, during a debate in the UN Commission on Human Rights in relation to Bosnia and Herzegovina, Egypt stated that “refugees and displaced persons must be allowed to … recover their possessions”. 
Egypt, Statement before the UN Commission on Human Rights, UN Doc. E/CN.4/1996/SR.47, 17 April 1996, § 35.
Germany
In 2005, in its Seventh Human Rights Policy Report submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
With the 1998 guidelines on the handling of crises related to internally displaced persons (“Guiding Principles on Internal Displacement”) by the then Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons, Francis Deng, the international community has a practice-oriented document, which summarizes existing standards on the protection of internally displaced persons and gives further recommendations. Although these guiding principles are not a binding instrument under international law, their acceptance by States, international organizations and NGOs has continued to grow over the past years, so that now they are virtually regarded as customary international law. 
Germany, Federal Government, Seventh Human Rights Policy Report, 17 June 2005, pp. 97–98.
Nepal
In its National Policies on Internally Displaced Persons adopted in 2007, Nepal stated:
1. Background
Due to natural disasters, human-made circumstances and disasters, armed conflict and situations of violence and fears having [been] created therefrom, persons and families are forcefully displaced from their homes or places of their habitual residence and thus they are time and again required to face such situations that force them to reside in other parts of the country. …
Therefore, the State is required to make appropriate provisions for their return to their place of habitual residence or settling them voluntarily in other places in the country. …
3. Definitions:
For the purpose of these Policies:
(a) “Internally Displaced Person” means a person who is living somewhere else in the country after having [been] forced to flee or leave their home or place of habitual residence due to armed conflict or situation of violence or gross violations of human rights or natural disasters or human-made disasters … or with an intention of avoiding the effects of such situations.
8. Policies
In relation to internal displacement, the following policies will be adopted:
8.1 Regarding Human Rights Protection
8.1.10 Arrangements will be made for giving protection from destruction, indiscriminate or illegal utilization or use of goods and property left [behind], but owned, by displaced persons. 
Nepal, National Policies on Internally Displaced Persons, adopted by the Government on 22 February 2007, §§ 1, 3, 8, and 8.1.10.
UN Security Council
In February 1996, in a statement by its President on the situation in Croatia, the UN Security Council referred to the right of the local Serb population “to return to their homes … and to reclaim possession of property”. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1996/8, 23 February 1996, p. 2.
In another statement by its President in December on the situation in Croatia, the UN Security Council deplored “the continued failure by the Government of Croatia to effectively safeguard the property rights [of refugees and IDPs], especially the situation where many of the Serbs who had returned to the former sectors had been unable to regain possession of their properties”. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1996/48, 20 December 1996, p. 1.
UN General Assembly
In a resolution adopted in 2003 on Palestine refugees’ properties and their revenues, the UN General Assembly:
Recalling that the Universal Declaration of Human Rights and the principles of international law uphold the principle that no one shall be arbitrarily deprived of his or her property,
Recalling in particular its resolution 394 (V) of 14 December 1950, in which it directed the Conciliation Commission, in consultation with the parties concerned, to prescribe measures for the protection of the rights, property and interests of the Palestine refugees,
1. Reaffirms that the Palestine refugees are entitled to their property and to the income derived therefrom, in conformity with the principles of equity and justice;
2. Requests the Secretary-General to take all appropriate steps, in consultation with the United Nations Conciliation Commission for Palestine, for the protection of Arab property, assets and property rights in Israel. 
UN General Assembly, Res. 58/94, 9 December 2003, preamble and §§ 1–2, voting record: 164-5-4-18.
UN General Assembly
In a resolution adopted in 2004 on Palestine refugees’ properties and their revenues, the UN General Assembly:
Recalling that the Universal Declaration of Human Rights and the principles of international law uphold the principle that no one shall be arbitrarily deprived of his or her property,
Recalling in particular its resolution 394 (V) of 14 December 1950, in which it directed the Conciliation Commission, in consultation with the parties concerned, to prescribe measures for the protection of the rights, property and interests of the Palestine refugees,
1. Reaffirms that the Palestine refugees are entitled to their property and to the income derived therefrom, in conformity with the principles of equity and justice;
2. Requests the Secretary-General to take all appropriate steps, in consultation with the United Nations Conciliation Commission for Palestine, for the protection of Arab property, assets and property rights in Israel. 
UN General Assembly, Res. 59/120, 10 December 2004, preamble and §§ 1–2, voting record: 161-6-9-15.
UN General Assembly
In a resolution adopted in 2005 on Palestine refugees’ properties and their revenues, the UN General Assembly:
Recalling that the Universal Declaration of Human Rights and the principles of international law uphold the principle that no one shall be arbitrarily deprived of his or her property,
Recalling in particular its resolution 394 (V) of 14 December 1950, in which it directed the Conciliation Commission, in consultation with the parties concerned, to prescribe measures for the protection of the rights, property and interests of the Palestine refugees,
1. Reaffirms that the Palestine refugees are entitled to their property and to the income derived therefrom, in conformity with the principles of equity and justice;
2. Requests the Secretary-General to take all appropriate steps, in consultation with the United Nations Conciliation Commission for Palestine, for the protection of Arab property, assets and property rights in Israel. 
UN General Assembly, Res. 60/103, 8 December 2005, preamble and §§ 1–2, voting record: 160-6-3-22.
UN General Assembly
In a resolution adopted in 2006 on Palestine refugees’ properties and their revenues, the UN General Assembly:
Recalling that the Universal Declaration of Human Rights and the principles of international law uphold the principle that no one shall be arbitrarily deprived of his or her property,
Recalling in particular its resolution 394 (V) of 14 December 1950, in which it directed the [United Nations] Conciliation Commission [for Palestine], in consultation with the parties concerned, to prescribe measures for the protection of the rights, property and interests of the Palestine refugees,
1. Reaffirms that the Palestine refugees are entitled to their property and to the income derived therefrom, in conformity with the principles of equity and justice;
2. Requests the Secretary-General to take all appropriate steps, in consultation with the United Nations Conciliation Commission for Palestine, for the protection of Arab property, assets and property rights in Israel;
3. Calls once again upon Israel to render all facilities and assistance to the Secretary-General in the implementation of the present resolution;
4. Calls upon all the parties concerned to provide the Secretary-General with any pertinent information in their possession concerning Arab property, assets and property rights in Israel that would assist him in the implementation of the present resolution. 
UN General Assembly, Res. 61/115, 14 December 2006, preamble and §§ 1–4, voting record: 170-6-8-8.
UN General Assembly
In a resolution adopted in 2007 on Palestine refugees’ properties and their revenues, the UN General Assembly:
Recalling that the Universal Declaration of Human Rights and the principles of international law uphold the principle that no one shall be arbitrarily deprived of his or her property,
Recalling in particular its resolution 394 (V) of 14 December 1950, in which it directed the [United Nations] Conciliation Commission [for Palestine], in consultation with the parties concerned, to prescribe measures for the protection of the rights, property and interests of the Palestine refugees,
1. Reaffirms that the Palestine refugees are entitled to their property and to the income derived therefrom, in conformity with the principles of equity and justice;
2. Requests the Secretary-General to take all appropriate steps, in consultation with the United Nations Conciliation Commission for Palestine, for the protection of Arab property, assets and property rights in Israel;
3. Calls once again upon Israel to render all facilities and assistance to the Secretary-General in the implementation of the present resolution;
4. Calls upon all the parties concerned to provide the Secretary-General with any pertinent information in their possession concerning Arab property, assets and property rights in Israel that would assist him in the implementation of the present resolution. 
UN General Assembly, Res. 62/105, 17 December 2007, preamble and §§ 1–4, voting record: 170-6-3-13.
UN Commission on Human Rights
In a resolution adopted in 1996, the UN Commission on Human Rights expressed its concern over continuing human rights violations within Bosnia and Herzegovina, including “actions that undermine the principle of the right to return, including enforcement of legislation which restricts rights to claim ‘socially owned’ property throughout the State of Bosnia and Herzegovina”. 
UN Commission on Human Rights, Res. 1996/71, 23 April 1996, § 3(b), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 on internally displaced persons, the UN Commission on Human Rights:
Expresses concern at the persistent problems of large numbers of internally displaced persons worldwide, in particular the risk of extreme poverty and socio-economic exclusion, their limited access to humanitarian assistance, vulnerability to human rights violations and difficulties resulting from their specific situation, such as lack of food, medication or shelter and issues pertinent during their reintegration, including, in appropriate cases, the need for the restitution of or compensation for property. 
UN Commission on Human Rights, Res. 2003/51, 23 April 2003, § 2, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on human rights in the occupied Syrian Golan, the UN Commission on Human Rights:
Guided by the relevant provisions of the Charter of the United Nations, international law and the Universal Declaration of Human Rights, and reaffirming the applicability of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and the relevant provisions of the Hague Conventions of 1899 and 1907 to the occupied Syrian Golan,
2. Also calls upon Israel to desist from changing the physical character, demographic composition, institutional structure and legal status of the occupied Syrian Golan, and emphasizes that the displaced persons of the population of the occupied Syrian Golan must be allowed to return to their homes and to recover their properties. 
UN Commission on Human Rights, Res. 2004/8, 15 April 2004, preamble and § 2, voting record: 31-1-21.
UN Commission on Human Rights
In a resolution adopted in 2004 on internally displaced persons, the UN Commission on Human Rights:
Expresses concern at the persistent problems of large numbers of internally displaced persons worldwide, in particular the risk of extreme poverty and socio-economic exclusion, their limited access to humanitarian assistance, vulnerability to human rights violations and difficulties resulting from their specific situation, such as lack of food, medication or shelter and issues pertinent during their reintegration, including, in appropriate cases, the need for the restitution of or compensation for property. 
UN Commission on Human Rights, Res. 2004/55, 20 April 2004, § 2, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on human rights in the occupied Syrian Golan, the UN Commission on Human Rights:
Guided by the relevant provisions of the Charter of the United Nations, international law and the Universal Declaration of Human Rights, and reaffirming the applicability of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and the relevant provisions of the Hague Conventions of 1899 and 1907 to the occupied Syrian Golan,
2. Also calls upon Israel to desist from changing the physical character, demographic composition, institutional structure and legal status of the occupied Syrian Golan, and emphasizes that the displaced persons of the population of the occupied Syrian Golan must be allowed to return to their homes and to recover their properties. 
UN Commission on Human Rights, Res. 2005/8, 14 April 2005, preamble and § 2, voting record: 32-2-19.
UN Commission on Human Rights
In a resolution adopted in 2005 on internally displaced persons, the UN Commission on Human Rights:
Expresses concern at the persistent problems of large numbers of internally displaced persons worldwide, in particular the risk of extreme poverty and socioeconomic exclusion, their limited access to humanitarian assistance, vulnerability to human rights violations, as well as difficulties resulting from their specific situation, such as lack of food, medication or shelter and issues pertinent during their reintegration, including, in appropriate cases, the need for the restitution of or compensation for property. 
UN Commission on Human Rights, Res. 2005/46, 19 April 2005, § 3, adopted without a vote.
UN Human Rights Council
In a resolution adopted in 2006 on human rights in the occupied Syrian Golan, the UN Human Rights Council:
Guided by the relevant provisions of the Charter of the United Nations, international law and the Universal Declaration of Human Rights and reaffirming the applicability of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and the relevant provisions of the Hague conventions of 1899 and 1907 to the occupied Syrian Golan,
2. Also calls upon Israel to desist from changing the physical character, demographic composition, institutional structure and legal status of the occupied Syrian Golan, and emphasizes that the displaced persons of the population of the occupied Syrian Golan must be allowed to return to their homes and to recover their property. 
UN Human Rights Council, Res. 2/3, 27 November 2006, preamble and § 2, voting record: 32-1-14.
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 UN Sub-Commission on Human Rights:
Confirms that the adoption or application of laws by States which are designed to or result in the loss or removal of tenancy, use, ownership or other rights connected with housing or property, the active retraction of the right to reside within a particular place, or laws of abandonment employed against refugees or internally displaced persons pose serious impediments to the return and reintegration of refugees and internally displaced persons and to reconstruction and reconciliation. 
UN Sub-Commission on Human Rights, Res. 1998/26, 22 August 1998, § 3.
UN Secretary-General
In 1996, in a report on the situation in Bosnia and Herzegovina, the UN Secretary-General noted:
An independent Commission for Real Property Claims of Displaced Persons and Refugees has been established … Its function is 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 1 April 1992, and where the claimant does not enjoy possession of the property. 
UN Secretary-General, Report pursuant to resolution 1035 (1995), UN Doc. S/1996/210, 29 March 1996, § 20.
UN Commission on Human Rights (Special Rapporteur)
In 1996, in a special report on minorities in the context of the former Yugoslavia, the Special Rapporteur of the UN Commission on Human Rights stated: “The Croatian authorities must act firmly to safeguard property rights of Serbs in the former sectors.” 
UN Commission on Human Rights, Special Rapporteur on the situation of Human Rights in the Former Yugoslavia, Special periodic report on minorities, UN Doc. E/CN.4/1997/8, 25 October 1996, § 127.
In another report in 1997, the Special Rapporteur recommended that any “laws on the allocation of abandoned property inconsistent with the Dayton agreements and international law must immediately be repealed”. 
UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Former Yugoslavia, Periodic report, UN Doc. E/CN.4/1997/56, 29 January 1997, § 55.
High Representative for the Implementation of the Peace Agreement on Bosnia and Herzegovina
Since September 1998, the High Representative for the Implementation of the Peace Agreement on Bosnia and Herzegovina has adopted numerous decisions in the field of property laws and return of displaced persons and refugees. These decisions mainly deal with occupancy rights, abandoned property, socially owned property and return of confiscated property. 
Office of the High Representative for the Implementation of the Peace Agreement on Bosnia and Herzegovina, Decisions in the field of property laws and return of displaced persons and refugees, available on www.ohr.int.
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Peace Implementation Conference for Bosnia and Herzegovina
The Chairman’s Conclusions of the Florence Peace Implementation Conference for Bosnia and Herzegovina in 1996 called on:
the Commission on Real Property Claims for Refugees and Displaced Persons now established in Sarajevo with the assistance of the International Organisation for Migration (IOM), to proceed urgently with its task of registration so as to provide property owners with the assurance that their rights will be preserved on local authorities to cooperate with the Commission on the parties to repeal or appropriately amend property laws which are inconsistent with the right, as set out in the Peace Agreement, of return and to their property. 
Peace Implementation Conference for Bosnia and Herzegovina, Florence, 13–14 June 1996, Chairman’s Conclusions, annexed to Letter dated 9 July 1996 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/1996/542, 10 July 1996, Appendix I, § 15.
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Agreement on Refugees and Displaced Persons annexed to the Dayton Accords
Article XI of the 1995 Agreement on Refugees and Displaced Persons annexed to the Dayton Accords established a Commission for Displaced Persons and Refugees which would “receive and decide any claim for real property in Bosnia and Herzegovina”. Article XII, paragraph 3, of the Agreement provided:
In determining the lawful owner of any property, the Commission shall not recognize as valid any illegal property transaction, including any transfer that was made under duress, in exchange for exit permission or documents, or that was otherwise in connection with ethnic cleansing. 
General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 7, Agreement on Refugees and Displaced Persons, signed by the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska, Dayton, 22 November 1995, Articles XI and XII, third para.
Recommendation on the Tragic Situation of Civilians in Bosnia and Herzegovina
Paragraph 4(c) of the 1992 Recommendation on the Tragic Situation of Civilians in Bosnia and Herzegovina provided that each party to the conflict guaranteed to those who left temporarily the territory it controlled that “any document, including a document renouncing or transferring property rights, assets or claims signed by a person who is about to leave temporarily has no legal validity and does not affect in any way that person’s rights or obligations”. 
Recommendation on the Tragic Situation of Civilians in Bosnia and Herzegovina, adopted at the invitation of the International Committee of the Red Cross and signed by Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representative of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Mate Boban (President of the Croatian Democratic Community), Geneva, 1 October 1992, § 4(c).
Joint Declaration by the Presidents of the Federal Republic of Yugoslavia and Croatia (September 1992)
According to paragraph 6 of the Joint Declaration by the Presidents of the Federal Republic of Yugoslavia and Croatia (September 1992), “all statements or commitments made under duress, particularly relating to land and property, are wholly null and void”. 
Joint Declaration by President Dobrica Cosić of the Federal Republic of Yugoslavia and President Franjo Tudjman of the Republic of Croatia, Geneva, 30 September 1992, annexed to Report of the UN Secretary-General on the International Conference on the Former Yugoslavia, UN Doc. S/24795, 11 November 1992, Annex II, § 6.
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Austria
In 1992, during a debate in the UN Security Council on Bosnia and Herzegovina, Austria emphasized that where persons were forced to sign statements renouncing their property rights, there could be no doubt that such documents were null and void. 
Austria, Statement before the UN Security Council, UN Doc. S/PV.3106, 13 August 1992, p. 23.
UN Security Council
In a resolution adopted in 1992 in the context of the conflict in the former Yugoslavia, the UN Security Council endorsed “the principles agreed by the Presidents of Croatia and the Socialist Federal Republic of Yugoslavia (Serbia and Montenegro) on 30 September 1992 that all statements or commitments made under duress, particularly those relating to land and property, are wholly null and void”. 
UN Security Council, Res. 779, 6 October 1992, § 5, voting record: 15-0-0.
These principles were reaffirmed in a resolution adopted in 1993. 
UN Security Council, Res. 820 A, 17 April 1993, § 7, voting record: 13-0-2.
UN Security Council
In a resolution adopted in 1994 in the context of the conflict in the former Yugoslavia, the UN Security Council reaffirmed “its support for the established principles that all declarations and actions made under duress, particularly those regarding land and ownership, are null and void, and that all displaced persons should be enabled to return in peace to their former homes”. 
UN Security Council, Res. 941, 23 September 1994, § 3, voting record: 15-0-0.
UN Security Council
In a resolution adopted in 1994 in the context of the conflict in the former Yugoslavia, the UN Security Council reaffirmed “its support for the established principle that all statements or commitments made under duress, particularly those regarding land and ownership, are null and void”.  
UN Security Council, Res. 947, 30 September 1994, § 8, voting record: 15-0-0.
UN General Assembly
In a resolution adopted in 1993 in the context of the conflict in the former Yugoslavia, the UN General Assembly considered “invalid all acts made under duress affecting ownership of property and other related questions”. 
UN General Assembly, Res. 48/153, 20 December 1993, § 13, adopted without a vote.
UN General Assembly
In a resolution adopted in 1994 on the former Yugoslavia, the UN General Assembly:
Reaffirms that the consequences of ethnic cleansing shall not be accepted by the international community and that those who have seized land and other property by ethnic cleansing and by the use of force must relinquish those lands, in conformity with norms of international law. 
UN General Assembly, Res. 49/10, 3 November 1994, § 8, voting record: 97-0-61-26.
UN General Assembly
In a resolution adopted in 1994 on the former Yugoslavia, the UN General Assembly:
Expresses its complete support for the victims of those violations, reaffirms the right of all persons to return to their homes in safety and dignity, considers invalid all acts made under duress affecting ownership of property and other related questions, recognizes the right of victims of ethnic cleansing to receive just reparation for their losses, and urges all parties to fulfil their agreements to this end. 
UN General Assembly, Res. 49/196, 23 December 1994, § 13, voting record: 150-0-14-21.
UN General Assembly
In a resolution adopted in 1995 on the situation of human rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), the UN General Assembly, in relation to the property of refugees and displaced persons, considered “null any commitment made under duress”. 
UN General Assembly, Res. 50/193, 22 December 1995, § 12, voting record: 144-1-20-20.
UN General Assembly
In a resolution adopted in 2000 on the situation in Bosnia and Herzegovina, the UN General Assembly reaffirmed “its support for the principle that all statements and commitments made under duress, particularly those regarding land and property, are wholly null and void”. 
UN General Assembly, Res. 55/24, 14 November 2000, § 19, adopted without a vote.
UN Commission on Human Rights
In several resolutions adopted between 1992 and 1995, the UN Commission on Human Rights emphasized the invalidity of acts made under duress in relation to the forcible transfer of the property rights of displaced persons in the former Yugoslavia. 
UN Commission on Human Rights, Res. 1992/S-2/1, 1 December 1992, § 4, voting record: 45-1-1; Res. 1994/72, 9 March 1994, § 8, adopted without a vote; Res. 1994/75, 9 March 1994, § 5, voting record: 41-1-10; Res. 1995/89, 8 March 1995, § 8, voting record: 44-0-7.
UN Sub-Commission on Human Rights
In resolutions adopted in 1993 and 1995, the UN Sub-Commission on Human Rights recommended that the UN and the governments concerned take measures to enable the properties of returning displaced persons in the former Yugoslavia to be restored to them, any documents signed by them under duress being rejected. 
UN Sub-Commission on Human Rights, Res. 1993/17, 20 August 1993, § 7; Res. 1995/8, 18 August 1995, § 5.
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Committee on the Elimination of Racial Discrimination
In a General Recommendation adopted in 1996, CERD emphasized that “any commitments or statements relating to [the] property [of returning displaced persons] made under duress are null and void”. 
CERD, General Recommendation XXII (Article 5 of the Convention and refugees and displaced persons), 1996, § 2.
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Note: For practice concerning reparation for damage sustained as a result of violations of international humanitarian law in general, see Rule 150.
Indigenous and Tribal Peoples Convention
Article 16 of the 1989 Indigenous and Tribal Peoples Convention states:
4. When … return [to their traditional lands] is not possible, as determined by agreement or, in the absence of such agreement, through appropriate procedures, these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. Where the peoples concerned express a preference for compensation in money or in kind, they shall be so compensated under appropriate guarantees.
5. Persons thus relocated shall be fully compensated for any resulting loss or injury. 
Convention concerning Indigenous and Tribal Peoples in Independent Countries, ILO Convention No. 169, adopted by the ILO General Conference, Geneva, 27 June 1989, Article 16.
Quadripartite Agreement on Georgian Refugees and IDPs
In paragraph 3(g) of the 1994 Quadripartite Agreement on Georgian Refugees and IDPs, the parties agreed:
Returnees shall, upon return, get back movable and immovable properties they left behind and should be helped to do so, or to receive wherever possible an appropriate compensation for their lost properties if return of property does not appear feasible.
[A Quadripartite] Commission … will establish a mechanism for such property claims. Such compensation should be worked out in the framework of the reconstruction/rehabilitation programmes to be established with financial assistance through the United Nations Voluntary Fund. 
Quadripartite Agreement on Voluntary Return of Refugees and Displaced Persons in the Republic of Georgia, between the Abkhaz and Georgian Sides, the Russian Federation and UNHCR, Moscow, 4 April 1994, annexed to Letter dated 5 April 1994 from the permanent representative of Georgia to the UN addressed to the President of the Security Council, UN Doc. S/1994/397, 5 April 1994, Annex II, § 3(g).
Agreement on Refugees and Displaced Persons annexed to the Dayton Accords
Article I(1) of the 1995 Agreement on Refugees and Displaced Persons annexed to the Dayton Accords provides: “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.” 
General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 7, Agreement on Refugees and Displaced Persons, signed by the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska, Dayton, 22 November 1995, Article I(1).
Agreement on Refugees and Displaced Persons annexed to the Dayton Accords
Article VII of the 1995 Agreement on Refugees and Displaced Persons annexed to the Dayton Accords established an independent Commission for Displaced Persons and Refugees. Article XI provides:
The Commission shall 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. Claims may be for return of the property or for just compensation in lieu of return.  
General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 7, Agreement on Refugees and Displaced Persons, signed by the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska, Dayton, 22 November 1995, Articles VII and XI.
Agreement on Refugees and Displaced Persons annexed to the Dayton Accords
Article XII, paragraph 2, of the 1995 Agreement on Refugees and Displaced Persons annexed to the Dayton Accords provides: “Any person requesting the return of property who is found by the Commission to be the lawful owner of that property shall be awarded its return.” 
General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 7, Agreement on Refugees and Displaced Persons, signed by the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska, Dayton, 22 November 1995, Article XII, second para.
Agreement on Normalization of Relations between Croatia and the Federal Republic of Yugoslavia
In Article 7 of the 1996 Agreement on Normalization of Relations between Croatia and the Federal Republic of Yugoslavia, the parties agreed to ensure that displaced persons returned into possession of their property or a just compensation. It also specified that within six months from the date of entry into force of the Agreement, the contracting parties would conclude an agreement on compensation for all destroyed, damaged or lost property. 
Agreement on Normalization of Relations between the Republic of Croatia and the Federal Republic of Yugoslavia, Belgrade, 23 August 1996, Article 7.
Kampala Convention
Article 12(2) of the 2009 Kampala Convention provides:
States Parties shall establish an effective legal framework to provide just and fair compensation and other forms of reparations, where appropriate, to internally displaced persons for damage incurred as a result of displacement, in accordance with international standards. 
African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, adopted in Kampala, Uganda, 23 October 2009, Article 12(2).
General Peace Agreement for Mozambique
Article IV(e) of the 1992 General Peace Agreement for Mozambique provided:
Refugees and displaced persons shall be guaranteed restitution of property owned by them which is still in existence and the right to take legal action to secure the return of such property from individuals in possession of it. 
General Peace Agreement for Mozambique, along with seven Protocols and four related documents, Rome, 4 October 1992, annexed to Letter dated 6 October 1992 from the permanent representative of Mozambique to the UN addressed to the President of the UN Security Council, UN Doc. S/24635, 8 October 1992, Article IV(e).
Afghan Peace Accord
Paragraph 6 of the 1993 Afghan Peace Accord provided: “All public and private buildings, residential areas and properties occupied by different armed groups during the hostilities shall be returned to their original owners.” 
Peace Accord between the Islamic State of Afghanistan, Harkat-e-Inqilab-e-Islami, Mahaz-e-Milli, Harkat-e-Islami, Hizbe-e-Islami, Jabha-e-Nijat-e-Milli, Ahmadzai Ittehad-e-Islami and Hizb-e-Wahdat-e-Islami, Islamabad, 7 March 1993, annexed to Letter dated 10 March 1993 from the permanent representative of Pakistan to the UN addressed to the Secretary-General, UN Doc. S/25398, 11 March 1993, § 6.
Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on Repatriation and Resettlement
The 1993 Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on Repatriation and Resettlement provides:
Chapter I: Repatriation of Rwandese Refugees
Article 4
The right to property is a fundamental right for all the people of Rwanda. All refugees shall therefore have the right to repossess their property on return.
The two parties recommend, however, that in order to promote social harmony and national reconciliation, refugees who left the country more than 10 years ago should not reclaim their properties, which might have been occupied by other people. The Government shall compensate them by putting land at their disposal and shall help them to resettle.
As for estates which have been occupied by the Government, the returnee shall have the right for an equitable compensation by the Government.
Chapter II: Return of Persons Displaced by War and Social Strifes
Article 45
The return of war displaced persons to their homes shall, as much as possible, be coordinated with the return of the refugees who left the country during the war, as well as that of persons displaced as a result of social strife. 
Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on the Repatriation of Refugees and the Resettlement of Displaced Persons, signed at Arusha on 9th June, 1993, Articles 4 and 45, as annexed to the Arusha Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front, Arusha, 4 August 1993.
Guiding Principles on Internal Displacement
Principle 29(2) of the 1998 Guiding Principles on Internal Displacement provides:
When recovery of property and possessions [left behind by internally displaced persons] is not possible, competent authorities shall provide or assist these persons in obtaining appropriate compensation or another form of just reparation. 
Guiding Principles on Internal Displacement, presented to the UN Commission on Human Rights by the Special Representative of the UN Secretary-General on Internally Displaced Persons, UN Doc. E/CN.4/1998/53/Add.2, 11 February 1998, Principle 29(2).
No data.
Georgia
Georgia’s Law on Displaced Persons (1996), as amended to 2010, states:
In case IDPs return to their places of permanent residence after the reasons … [for displacement] have ceased:
a) the relevant bodies of executive authorities and local self-government, including the Ministry of Displaced Persons from Occupied Territories, Refugees and Accommodation of Georgia, shall … return to … [them] their legal heritage [and] personal assets, including house and land … , [pay] compensation [for] damage … and guarantee the return and rehabilitation of a damaged apartment to a citizen. 
Georgia, Law on Displaced Persons, 1996, as amended to 2010, Article 7(1)(a).
The Law defines an IDP as:
a citizen of Georgia or a stateless person permanently residing in Georgia, who was forced to leave his place of permanent residency and seek asylum within the territory of Georgia due to a threat to his or his relatives’ life, health and freedom, as a result of an aggression by a foreign state, an internal conflict or massive violations of human rights. 
Georgia, Law on Displaced Persons, 1996, as amended to 2010, Article 1.
Georgia
Georgia’s Law on Displaced Persons (1996), as amended in 2011, states:
Article 1 – The Term IDP and [the] Prohibition of Discrimination
1. Internally displaced person from the occupied territory – IDP is a citizen of Georgia or stateless person permanently residing in Georgia, who was forced to leave his place of permanent residency and seek asylum within the territory of Georgia due to the threat to his life, health and freedom or life, health and freedom of his family members, as a result of aggression of a foreign state, internal conflict o[r] mass violation of human rights or [a]s a result of events determined by … paragraph 11 of article 2 of this Law.
Article 7 - State guarantees [the] rehabilitation of displaced persons at places of their permanent residence
… If [an] IDP after elimination of the reasons enumerated in article 1 of this law returns to his place of permanent residence:
a) [T]he relevant bodies of executive authorities and local self-government, including the Ministry of Refugees and Accommodation shall secure the exercise of [IDPs’] constitutional rights[;] shall create [the] necessary social-economic living conditions for … safety at their places of permanent residence; [shall] return to displaced persons their legal heritage, the personal assets, including house[s] and … land in the present condition; the compensation of damage, after estimation of its amount, shall be processed by the local self-government bodies according to the rules established by the government …
b) The amount of damage and the rules of payment of compensations shall be established by the relevant bodies of the executive authorities. 
Georgia, Law on Displaced Persons, 1996, as amended in 2011, Articles 1(1) and 7.
Georgia
Georgia’s Law on Internally Displaced Persons (2014) states:
Article 6. Definition of an IDP [internationally displaced person]
1. A citizen of Georgia or a stateless person with a status residing in Georgia shall be considered as an IDP, if he/she was forced to leave his/her permanent place of residence because of threat to his/her or his/her family member[s’] life, health or freedom caused by the occupation of the territory by a foreign state, aggression, armed conflict, mass violence and/or massive human rights violations and/or he/she cannot return to his/her permanent place of residence due to the above mentioned reasons.
Article 15. Protection of IDP Property Rights in the[ir] Places of Permanent Residence
1. The State recognizes the IDPs’ right to restitution, which is hereditary, on the real estate they left in the places of permanent residence.
3. After elimination of [the] circumstances as referred to in paragraph 1 of Article 6[,] in case[s] whe[re an] IDP returns to his/her place of permanent residence, the State shall take all possible measures to ensure that the real estate which an IDP had lawfully owned and/or possessed before displacement and w[as] forced to leave, is returned to a lawful owner and possessor.
4. The right envisaged by paragraph 1 of this Article shall be maintained in … cases whe[re] durable housing has been provided to IDPs.
Article 18. State Guarantees for Reintegration after IDPs’ Return to Their Places of Permanent Residence
1. The state shall ensure [the] development of relevant mechanisms supporting [the] reintegration of IDPs [at] places of permanent residence when they return.
2. If IDPs, after elimination of the circumstances referred to in paragraph 1 of Article 6, return to their places of permanent residence, the Ministry [of Internally Displaced Persons from Occupied Territories, Accommodation and Refugees of Georgia] and other state bodies within the competencies granted to them shall:
c) implement all the necessary activities to ensure that private property, including house[s] and attributed land plot[s], are returned to an IDP or his/her lawful heir in the condition they exist at the time of return. Also[,] when possible, rebuild the destroyed house and ensure its return to IDPs;
d) co-ordinate [the] organization of the issuance of compensation for damage after determination of its limits.
3. Authorized government bodies shall determine rules for determining the amount of damage and the granting of compensation. 
Georgia, Law on Internally Displaced Persons, 2014, Articles 6(1), 15(1) and (3)–(4), 18(1), (2)(c)–(d) and (3).
Peru
Peru’s Law on Internal Displacement (2004) states:
Competent authorities have the duty and responsibility to assist returned and/or resettled internally displaced persons to recover, to the extent possible, their property and possessions which they left behind or were dispossessed of upon their displacement. 
Peru, Law on Internal Displacement, 2004, Article 17(2).
Peru
Peru’s Regulations to the Law on Internal Displacement (2005) states:
Internally displaced persons who return to their places of habitual residence or who have resettled in another part of the country have a right to:
i) the … recovery, to the extent possible, of their property and possessions which they left behind or from which they were dispossessed when they became displaced. 
Peru, Regulations to the Law on Internal Displacement, 2005, Article 6(i).
Bosnia and Herzegovina
In the Turundžić case before the Human Rights Chamber of the Commission on Human Rights of Bosnia and Herzegovina in 2001, the applicants were citizens of the Federation of Bosnia and Herzegovina who held pre-war occupancy rights to apartments in Mostar, but left due to wartime hostilities. They thereafter filed repossession claims with the Commission for Real Property Claims of Displaced Persons and Refugees, which recognized the applicants’ occupancy rights. The applicants’ subsequent enforcement requests to the competent municipal organs went unanswered. The applicants consequently filed applications against the Federation with the Human Rights Chamber for Bosnia and Herzegovina, claiming under the 1950 European Convention on Human Rights respect for the home and peaceful enjoyment of property. The Chamber held that the authorities’ failure to enforce the Commission’s decisions in question constituted an “ongoing interference” with the applicants’ rights to respect for the home and peaceful enjoyment of property. The Chamber ordered the Federation to take all necessary steps to enforce the decisions without further delay, and further awarded compensation. 
Bosnia and Herzegovina, Commission on Human Rights (Human Rights Chamber), Turundžić case, Decision, 8 February 2001.
Nepal
In 2009, in the Bhandari case, which concerned the property rights of internally displaced persons, Nepal’s Supreme Court described the facts of the case as follows:
The petitioners who were living in their own ancestral place have been wandering as … landless paupers and internal refugees in different parts of the country due to the conflict that started in the year 1996 following which the Maoists seized their land, house, industry, factory including movable and immovable property allegedly for professing political faith opposed by the Maoists. Since the internally displaced families had played [a] very important role during the movement of 2006/2007 they were confident that following the success of the movement, peace and order would be restored in the country resulting in the onset of New Nepal. Then movable and immovable property seized during the conflict would be easily returned and all the families would be allowed to settle in their respective settlements and make their living. As expected, the movement was successful and the Interim Constitution of Nepal, 2007, was promulgated which guaranteed fundamental rights and also inscribed that the property seized during the armed conflict would be returned. But their fate took a further downturn.
The Government of Nepal, the political parties and the respondents who were signatory to Art 5.1.8 of the Comprehensive Peace Agreement annexed to the Constitution pursuant [to] Article 166(3) did not return the seized movable and immovable property of the petitioners. Complaints were filed a number of times for the return of the property before the political party who were supposedly called the vanguards of the New Nepal, before the Human Rights Commission and the Nepal[ese] Government. However, no initiative was taken [by] them. 
Nepal, Supreme Court, Division Bench, Bhandari case, Order, 7 January 2009, p. 1.
The Court held:
It is seen that in Article 19 [of] the Interim Constitution of Nepal, 2007, a provision on the Right to Property is inscribed. Clause 1 of the said Article provides that subject to the laws in force, every citizen shall have the right to acquire, own, sell, dispose of, and otherwise deal with property. Clause (2) provides that except in the public interest, the State shall not acquire, requisition or otherwise create any encumbrance on the property of any person. It however provided that the said clause shall not apply any property acquired in an illicit manner. Similarly, Clause (3) the same provides that compensation shall be provided for any property requisitioned, acquired or encumbered by the State in the course of enforcing a scientific land reform program or in the public interest in accordance with [the] law. The amount and basis of compensation and the procedure therefore shall be as determined by law.
The Clause (3) of the Article 166 of the Interim Constitution of Nepal, 2007, provides that the comprehensive peace agreement concluded between the Government of Nepal and [the] CPN [Communist Party of Nepal] (Maoists) on November 21, 2006 and the agreement on Monitoring of the Management of Arms and Armies is annexed in Schedule 4. Clause 5.1.8 of the said Schedule 4 states that both the parties have expressed consen[t] to document and immediately return the seized [or] locked building[s], land and other properties to the respective owners.
In order to secure respect for the right to life of a person, it is important to protect the right to property and the right to profession and avocation which are the basis of livelihood. In the absence of this, neither the right to food is protected, nor can daily necessities for maintaining life … be fulfilled. It is not possible to realize the right to self-determination in the absence of property, [shelter] and profession. Therefore, provisions regarding respect [for] these rights, and the resolve not to seize or capture property, respect [for] … residence and the resolve to return the property can be said to be important commitments of the Comprehensive Peace Agreement.
For the purpose of safeguarding this right, even though the Comprehensive Peace Agreement entrusts the responsibility [to] the Cabinet for the [establishment] of the Peace and Rehabilitation Commission, such a Commission does not seem to have been [established to] … date. …
Though [the] peace agreement was meant to be one guiding document for transforming peace and [is] respected as such, its effective implementation for the protection of the life and livelihood of the people is yet to be witnessed. On the contrary, an undeclared silence, indifference, and fatigue seem prevalent. As a result, beside other things, it has given rise to a feeling that hindrances in the restoration of the rule of law are yet to be removed.
It should be noted that the causes of war rest in [the] human mind rather than in the environment he lives in. Unless the rights are properly protected and restored, the conflict in the human mind does not wither away. So long as the individual is not assured of the protection of the rights, he/she in one way or the other is afflicted by the feeling of fear, revenge, neglect etc. and as a result keeps on supporting and favouring conflict.
During the time of conflict and afterwards, in a situation where the properties have not been restored, habitations/residences not protected, or where the people are not allowed to embrace the profession they wish to, the feeling of insecurity prevails. This in essence indicates the perpetuation of the aftershocks of the conflict. Therefore, it is imperative for all concerned to keep in mind that the lack of honest implementation of the peace agreement [entails] the potential of [the conflict’s] revival.
Though the petition does not … cover [the entire] implementation of the peace agreement, since the Comprehensive Peace Agreement has expressed commitment to respect the realization of the right to property and other fundamental rights guaranteed by the Interim Constitution, the implementation of the noted agreement seems relevant in the context of the remedy sought by the petitioners.
So far as the execution of [the] peace agreement is concerned, the petitioners have not made [the] implementation of the whole agreement … the subject matter [of] the petition. Yet, as it appears, the house, land and property of the petitioners have been seized during the conflict period. Due to these incidents, people have been victimized and they have been left without property. They have thus been directly hit due to [the aforementioned] acts in terms of losing food and shelter. Indirectly, they have lost self-respect, [the] feeling of security and productive opportunities and competencies. That is why the claims made in the petition should be considered in the broader ambit of the causes of conflict and their management. The resolution of the problem through political, administrative, moral and various other means are there in their own place, but since the matter has already entered the Court, the question before us is how this Court can resolve the problem under the judicial process.
Before this Court, the petitioners have stated that the rights enshrined under Articles, 12(1), and (2), (3) (e) and (f), 13, 19(1) and (2) of the constitution Schedule 4, and Article 5.1.8 of the same have been violated, and … on it [basis], [they] have demanded … the issuance of [an] order pursuant to Article 32 and Article 107. … [T]he undisputed properties of the petitioners are the properties that they can possess, enjoy and alienate. While it is the primary duty of the State to protect such properties, it is also the duty of others not to interfere [with] or create impediments [for] the enjoyment of fundamental rights or legal rights of individuals. Whatever be the reasons of conflict the life and properties of individuals are inviolable. The mere breakout of the conflict cannot justify the violation of individuals’ liberty or property. Even if committed during the conflict, any affront to the rights provided by the law is illegal.
As raised in the petition, in the post-conflict period, or say at a time when the new Interim Constitution is being implemented, the properties illegally seized during the conflict are still allowed to be continuously held back. Due to this, hindrance has been created not only in the enjoyment of properties, but also in their diverse use or [in the] enjoyment of [their] benefits. Since such situation of deprivation gives rise to a state of continuous loss, in order to provide adequate and effective justice, property should be returned by taking into account the recurrent loss, and [a] permanent solution should be found out so that such incidents do not recur.
Now therefore, a fundamental question has in fact arisen as to whose obligation is this? While the petitioners have filed the petition primarily relying on the right to property under Article 19, they have also touched upon the provisions of the peace agreement by way of reference. The Court can look into this, under its extraordinary jurisdiction, only in the course of enforcing [the] fundamental rights of the petitioners. So far as judicial enforcement of the peace agreement is concerned, the provisions of [the] peace agreement are not in themselves the source of rights. Since the agreement cannot impose restriction[s] on fundamental and legal rights of the people, the ordinary and extraordinary jurisdiction of the Court cannot be invoked by taking provisions of the peace agreement as a matter of right. However, in the post-conflict period, the agreement can be viewed as a document of consensus in the context of discharg[ing] [the] State’s obligation [concerning] the resolution of [the] conflict and [the] institutional development of peace. Therefore, given that the peace agreement has also expressed [the] commitment to the enforcement of rights inscribed in the Constitution, there is no reason why in the course of enforcing the rights, the Court cannot draw [the] attention of the State [to] the norms or values stipulated in the peace agreement by way of reference.
Our constitution has accorded due respect and effectual position to property in the form of [a] fundamental right. Except when the property is acquired according to law, any political or other move validating illegal seizure cannot be acceptable. … [N]ot let[ting] the actual owner of the property … enjoy the property … contrary to fundamental norms including the right to property, rule of law and principles of responsible governments which have been accepted as cardinal principle[s] of the constitution [would undermine the basis of the constitutional State]. If such thoughts or behaviour contrary to the constitution are tolerated, then the making of the constitution or having provisions relating to the rule of law, independent judiciary, and fundamental rights and so on will have no meaning.
Regarding the question that the State or the government has not seized the petitioners’ house, land or property in an unauthorized manner or that it has been seized by other parties of the conflict, it seems to us that it is the fundamental duty of the State or the government to protect people’s lives and property and safeguard the border of the country. Besides, it is its duty … to maintain law and order in the society, to develop infrastructure and create [the] necessary environment so that people can enjoy the right to development. It is also the duty of the State to guarantee the social peace and social justice. When viewed from this perspective, to say that the State or the government itself has not interfered with any specific property of any particular person cannot be considered as an excuse to discharge [the] responsibility [of] the State. True, … the State itself might not have violated people’s right[s]. However, in circumstances like the one stated in the petition, responsibility is not determined based on whose and what kind of right has been illegally violated. Rather the assessment of fulfillment of State responsibility is to be made based on whether or not the State has become convincingly successful in protecting … people’s rights.
If the State in general has failed to remove the obstruction that has appeared in the enjoyment or enforcement of the rights conferred by the law, then it is to be principally believed that the State has been unable to discharge its obligation. Generally, the right to property is a matter of personal right but where the repetition of the incident … [violating the] right affect the rights of many individuals or communities … and the State remains an indifferent spectator [and] does not take any substantive and effective measures for resolving them, then such a State is said to be fundamentally unconcerned about its obligation. Therefore, it is a mandatory duty of the State to take [an] interventionist role for bringing the law enforcement situation to normalcy where colossal violation of the right to property or individual freedom continues to take place. If [the State] fails to discharge such duty and the right holders enter the Court seeking constitutional recourse to remedy, it becomes incumbent upon the Court to issue obligatory orders under all available constitutional means for the protection of people’s rights. The human rights jurisprudence developed under international human rights law includes not only matters relating to violations of human rights committed by public entities or officials but also matters relating to violation of rights of individuals or communities by non-State actors. In such cases, if the State fails to guarantee the prevention of the violation, and as a result the rights of the people are not protected, such matters are also considered as violations of human rights, and the State is held accountable in the eyes of international human rights law.
In the present situation, the erstwhile non-State actor of the peace agreement itself is involved in the government and now it is also heading the State. Since it is heading [the] Council of Ministers and as stated above, it is its duty to respect all rights, and guarantee their enforcement. Having such a dual role, the present government should be even more sensitive and responsible. And since it is one of the actors of the conflict and now a part of the government, it seems to us that it is its duty to return and cause the return of seized property as mentioned by the petitioners.
In conclusion, it is deemed that the demand of the petitioners [is] based on the constitution and law, that it is the duty of all organs of the State to respect their right to property and that the State does have a key role in their enforcement. In the present situation when the peace agreement has been concluded, and following it, the New Interim Constitution has been promulgated and even the government is being headed by the then party to [the] conflict, [the] CPN (Maoist) party, not returning the property which was seized in [an] unauthorized manner to its legitimate owners, and depriving and restricting the actual owners or not causing its return, or being unable to do so, is deemed objectionable in the eye of [the] constitution and [the] law. Due to [the] unauthorized seizure of homes, land and property for years, quality of life of the owner has been affected and as the loss incurred or to be incurred is of continuous nature, it is imperative that such a situation should come to an end [as soon as possible]. It seems to us that problems of transitional justice including the seizure of property during the conflict and [the] violation of fundamental and human rights should be addressed through a particular institutional mechanism and program, and the attention of the government should be drawn towards this.
Since the petitioners have prayed for the return of property held in an unauthorized manner along with payment of compensation for the loss incurred [to] date, … [the court] deems that the matter should be resolved by making an assessment of the loss incurred by them [including by] … looking into the record of [a] particular property, their use and [the] earning[s] that would [have been] made from such property.
For that purpose, an order of mandamus is hereby issued in the name of [the] respondent Prime Minister and Office of Council of Ministers pursuant to Article 107(2) of the Interim Constitution of Nepal, 2007, to the effect that a five-member Commission for the return of property with the representation of the victim community, law enforcement agencies including political persons at district level where the petitioners reside and in … similar districts where there is [a] problem of seizure of property, be constituted, and through the committee, the property be returned to the actual owners, that within three months of the receipt of this order, the loss, depreciation and loss of income from the property thus seized be assessed, and as prayed by the petitioners compensation be paid to them after fulfilling the procedure as stated herein above, and also that a fund for providing compensation and relief to those who have become victims due to the damage caused by the seizure of the property be set up. 
Nepal, Supreme Court, Division Bench, Bhandari case, Order, 7 January 2009, pp. 2–15.
Austria
In 1992, during a debate in the UN Security Council on displaced persons in Bosnia and Herzegovina, Austria stated that compensation should be given for property that had been destroyed. 
Austria, Statement before the UN Security Council, UN Doc. S/PV.3106, 13 August 1992, p. 23.
Colombia
In 2006, during the consideration of the third periodic report of Colombia before the Committee on the Rights of the Child, a representative of Colombia stated that “the law … [provides] for the restoration of property to rural communities which … lost their livelihoods as a result of forced displacements”. 
Colombia, Statement before the Committee on the Rights of the Child during the consideration of the third periodic report of Colombia, 4 July 2006, UN Doc. CRC/C/SR.1148, § 42.
Croatia
In 1996, in a letter to the Chairman of the UN Commission on Human Rights, Croatia highlighted the fact that legislation relating to the property rights of IDPs and refugees had been amended. The legislation provided: “If the owner of a property returns to the Republic of Croatia he is entitled to use his or her property.” The amendment had lifted “the time limit for the return of the persons who had abandoned their property”. 
Croatia, Letter dated 15 April 1996 to the Chairman of the UN Commission on Human Rights, UN Doc. E/CN.4/1996/159, 15 April 1996, p. 10, § 22.
Germany
In 2005, in its Seventh Human Rights Policy Report submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
With the 1998 guidelines on the handling of crises related to internally displaced persons (“Guiding Principles on Internal Displacement”) by the then Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons, Francis Deng, the international community has a practice-oriented document, which summarizes existing standards on the protection of internally displaced persons and gives further recommendations. Although these guiding principles are not a binding instrument under international law, their acceptance by States, international organizations and NGOs has continued to grow over the past years, so that now they are virtually regarded as customary international law. 
Germany, Federal Government, Seventh Human Rights Policy Report, 17 June 2005, pp. 97–98.
Philippines
The Guidelines on Evacuations adopted by the Presidential Human Rights Committee of the Philippines in 1991 provide:
The government shall indemnify the people of damages for the injuries they have suffered, in particular: (a) for all houses which were destroyed or which were ordered dismantled and demolished, and (b) for reasonable value of their personal properties as a result of the evacuation. 
Philippines, Presidential Human Rights Committee, Res. No. 91-001 Providing for Guidelines on Evacuations, Manila, 26 March 1991, § 9.
Russian Federation
In 1995, during a debate in the UN Security Council on the former Yugoslavia, the Russian Federation stated: “Any attempt to introduce a time-limit for [Serbian inhabitants of Krajina] to reclaim their property is unacceptable.”  
Russian Federation, Statement before the UN Security Council, UN Doc. S/PV.3591, 9 November 1995, p. 8.
UN Security Council
In a resolution adopted in November 1995, the UN Security Council reiterated its call upon the Government of Croatia “to lift any time-limits placed on the return of refugees to Croatia to reclaim their property”. 
UN Security Council, Res. 1019, 9 November 1995, § 7, voting record: 15-0-0.
UN Security Council
In 1995, in a statement by its President, the UN Security Council asked the Government of Croatia “as a matter of urgency … [to] lift any time limits placed on the return of refugees to reclaim their property” and noted that the deadline fixed by the Croatian authorities “constituted a virtually insurmountable obstacle for most Serb refugees”. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1995/63, 22 December 1995, p. 1.
UN Security Council
In 1996, in a statement by its President, the UN Security Council reiterated its appeal to Croatia to lift the time limits on return to reclaim property and stated that the decision to suspend the deadline constituted a step in the right direction which should be followed. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1996/2, 8 January 1996, p. 2.
UN Security Council
In 1997, in a statement by its President, the UN Security Council called upon the Government of Croatia “to promptly resolve the property issue by a return of property or just compensation”. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1997/15, 19 March 1997, p. 1.
UN General Assembly
In a resolution adopted in 1995 on the situation of human rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), the UN General Assembly recognized “the right of refugees and displaced persons … to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any such property that can not be restored to them”. 
UN General Assembly, Res. 50/193, 22 December 1995, § 12, voting record: 144-1-20-20.
UN General Assembly
In a resolution adopted in 2000 on the situation in Bosnia and Herzegovina, the UN General Assembly called upon all sides “to implement the property laws imposed on 27 October 1999, in particular by evicting illegal occupants from the homes of returning refugees”. 
UN General Assembly, Res. 55/24, 14 November 2000, § 19, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1994, the UN Commission on Human Rights appealed to those in control of the territory of Abkhazia “to ensure the right of displaced persons and to recover their property”. 
UN Commission on Human Rights, Res. 1994/59, 4 March 1994, § 5, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1996 on the situation of human rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montegnegro), the UN Commission on Human Rights noted the commitment made in the 1995 Dayton Accords that returning displaced persons would either “have their property restored or receive compensation for property that cannot be restored to them”. It further expressed its concern over continuing human rights violations within Bosnia and Herzegovina, including actions that undermined the principle of the right to return, such as “unjustified evictions of persons from their homes”. 
UN Commission on Human Rights, Res. 1996/71, 23 April 1996, preamble and § 3(b) , adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1997 on human rights in the occupied Syrian Golan, the UN Commission on Human Rights emphasized that “the displaced persons of the population of the occupied Syrian Golan must be allowed to … recover their properties”. 
UN Commission on Human Rights, Res. 1997/2, 26 March 1997, § 2, voting record: 26-1-23.
UN Commission on Human Rights
In a resolution adopted in 2005 on internally displaced persons, the UN Commission on Human Rights:
Expresses concern at the persistent problems of large numbers of internally displaced persons worldwide, in particular the risk of extreme poverty and socioeconomic exclusion, their limited access to humanitarian assistance, vulnerability to human rights violations, as well as difficulties resulting from their specific situation, such as lack of food, medication or shelter and issues pertinent during their reintegration, including, in appropriate cases, the need for the restitution of or compensation for property. 
UN Commission on Human Rights, Res. 2005/46, 19 April 2005, § 3, adopted without a vote.
UN Human Rights Council
In a resolution adopted in 2007 on the mandate of the Representative of the Secretary-General on the human rights of internally displaced persons, the UN Human Rights Council:
Expresses concern at the persistent problems of large numbers of internally displaced persons worldwide, in particular the risk of extreme poverty and socio-economic exclusion, their limited access to humanitarian assistance, vulnerability to human rights violations and difficulties resulting from their specific situation, such as lack of food, medication or shelter and issues pertinent during their reintegration, including, in appropriate cases, the need for the restitution of or compensation for property. 
UN Human Rights Council, Res. 6/32, 14 December 2007, § 3, adopted without a vote.
UN Sub-Commission on Human Rights
In a decision adopted in 1992 on Yugoslavia, the UN Sub-Commission on Human Rights demanded that “full reparation be made for losses suffered as a result of the displacement”. 
UN Sub-Commission on Human Rights, Decision 1992/103, UN Doc. E/CN.4/Sub.2/1992/58, 14 October 1992, § (d).
UN Sub-Commission on Human Rights
In a resolution adopted in 1993 with regard to the situation in Bosnia and Herzegovina, the UN Sub-Commission on Human Rights called for “the effective eradication of the tragic consequences of the aggression and the human rights violations in the Republic of Bosnia and Herzegovina, through joint international efforts for the reconstruction of the country”. It recommended that:
To this end, steps be taken through concerted international action and by the relevant international bodies to enable all refugees, deportees and displaced persons to return safely to their homes in the Republic of Bosnia and Herzegovina, and their properties to be restored to them, any documents signed by them under duress being rejected. 
UN Sub-Commission on Human Rights, Res. 1993/17, 20 August 1993, §§ 6–7.
UN Sub-Commission on Human Rights
In a resolution adopted in 1995 on the former Yugoslavia, the UN Sub-Commission on Human Rights recommended that the UN and the governments concerned take measures to enable the properties of returning displaced persons to be restored to them or, failing this, that compensation be paid. 
UN Sub-Commission on Human Rights, Res. 1995/8, 18 August 1995, §§ 5–6.
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 UN Sub-Commission on Human Rights:
Urges 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. 
UN Sub-Commission on Human Rights, Res. 1998/26, 22 August 1998, § 4.
UN Commission on Human Rights (Special Rapporteur)
In 1994, in a report on the situation of human rights in the territory of the former Yugoslavia, the Special Rapporteur of the UN Commission on Human Rights emphasized that all displaced persons, “irrespective of their ethnic origins, have a fundamental right to return to their properties and that this has to be ensured”. 
UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Former Yugoslavia, Seventh periodic report, UN Doc. E/CN.4/1995/4, 10 June 1994, § 23.
UN Sub-Commission on Human Rights (Special Rapporteur)
In a progress report submitted to the UN Sub-Commission on Human Rights in 1994, the UN Special Rapporteur on the Human Rights Dimensions of Population Transfer, including the Implantation of Settlers and Settlements stated:
137. In situations where transfer is not unlawful, damage occurs nevertheless to the transferred group, and it ought, as a matter of equity, to receive compensation. An innocent victim should not be left to bear his loss alone …
138. The practice of international organs with regard to conflicts … confirms that restitution in kind is normally demanded in the form of reparation. Compensation is either explicitly mentioned, as in the case of the Palestinian refugees, or implicit in the language of the resolution referring to other conflicts.  
UN Sub-Commission on Human Rights, Special Rapporteur on the Human Rights Dimensions of Population Transfer, including the Implantation of Settlers and Settlements, Progress report, UN Doc. E/CN.4/Sub.2/1994/18, 30 June 1994, §§ 137–138.
UN Sub-Commission on Human Rights (Special Rapporteur)
In 1997, in his final report submitted to the UN Sub-Commission on Human Rights, the UN Special Rapporteur on the Human Rights Dimensions of Population Transfer, including the Implantation of Settlers and Settlements proposed a draft declaration on population transfer and the implantation of settlers for adoption by the UN Commission on Human Rights. Article 8 of the draft declaration provided:
The exercise of the right to return does not preclude the victims’ right to adequate remedies, including restoration of properties of which they were deprived in connection with or as a result of population transfers, compensation for any property that cannot be restored to them, and any other reparations provided for in international law. 
UN Sub-Commission on Human Rights, Special Rapporteur on the Human Rights Dimensions of Population Transfer, including the Implantation of Settlers and Settlements, Final report, UN Doc. E/CN.4/Sub.2/1997/23, 27 June 1997, Annex II, Draft declaration on population transfer and the implantation of settlers, Article 8.
Council of Europe Parliamentary Assembly
In an opinion adopted in 1996 on Croatia’s request for membership of the Council of Europe, the Council of Europe Parliamentary Assembly stated that Croatia had undertaken among other things to allow displaced persons “effectively to exercise their rights to recover their property or receive compensation”. 
Council of Europe, Parliamentary Assembly, Opinion 195, 24 April 1996, § 9(viii).
The Parliamentary Assembly repeated its call for the authorities to ensure that returnees were allowed either to recover their property or to receive proper compensation in two separate recommendations in 1996 on the implementation of the 1995 Dayton Accords. 
Council of Europe, Parliamentary Assembly, Rec. 1287, 24 January 1996, § 2; Rec. 1297, 25 April 1996, § 5(iii).
No data.
Committee on the Elimination of Racial Discrimination
In a General Recommendation adopted in 1996, CERD emphasized that “refugees and displaced persons have, after their return to their homes of origin, the right to have restored to them property of which they were deprived in the course of the conflict and to be compensated appropriately for any such property that cannot be restored to them”. 
CERD, General Recommendation XXII (Article 5 and refugees and displaced persons), 1996, § 2.
Committee on the Elimination of Racial Discrimination
In a decision on the Federal Republic of Yugoslavia adopted in 1998, CERD reaffirmed that “displaced persons have the right … to be compensated appropriately for [their homes and] properties that cannot be restored to them”. 
CERD, Decision 3(53) on the Federal Republic of Yugoslavia, UN Doc. A/53/18 (SUPPL), 17 August 1998, § 3.
No data.
Philippine Alliance of Human Rights Advocates
In a report submitted to ECOSOC in 1995, the Philippine Alliance of Human Rights Advocates asked ECOSOC to urge the Philippine Government to provide internally displaced persons with compensation for their losses. 
Philippine Alliance of Human Rights Advocates (PAHRA), Report on the implementation by the Philippines Government of Articles 10, 11 and 12 of the CESCR on the occasion of the 12th Session of ECOSOC, Manila, 20 April 1995, pp. 15 and 16.