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The Contemporary Right to Property Restitution in the Context of Transitional Justice

The issue of property restitution has featured prominently in many political transitions and peace settlements seen since the end of the Cold War. The return of property, homes, and land has been viewed as a means of redressing past injustice in many forms, ranging from communist nationalizations and colonial-era land confiscation to outright ethnic cleansing and war crimes. Restitution policies often figure at least implicitly in broader transitional justice efforts in the wake of repression, persecution, and widespread human rights violations.

Among the range of transitional justice mechanisms, restitution is most closely linked to reparations by virtue of both their common historical background and their shared aspiration, in principle, to restore victims to the condition they would have enjoyed had no violations of their rights occurred. This study summarizes the parallel development of restitution and reparations in international law and practice over the last century in order to provide context for recommendations on how restitution can best serve the needs of contemporary transitional justice settings.

Prior to World War II, restitution came to the fore as the preferred form of reparations in disputes between states. After World War II, the proliferation of international human rights rules resulted in a new understanding, according to which states responsible for violations could be obliged to make reparations—including restitution—to individual victims of human rights abuses. However, where restitution was traditionally viewed as hierarchically superior to other types of remedies such as compensation, this is no longer clearly the case in human rights settings. Many types of human rights violations do not simply result in the loss of recoverable assets, but do grave intangible harms to their victims’ mental or physical integrity and dignity. As a result, the relevance of restitution as part of an integrated reparative response to contemporary human rights violations should be assessed on a case-by-case basis.

Restitution has, however, maintained its traditional high profile in remedying one distinct category of human rights violations, those involving displacement of people from their homes and lands. Although such displacement is illegal, the right of victims to return to their homes of origin is only weakly supported in international law. As a result, restitution of rights in homes, land, and property for displaced persons has come to prominence both as a formal legal remedy for displacement and as a practical means of allowing displaced people to return to their reclaimed homes—or sell them in order to finance a new life elsewhere. In other words, where international law does not set out an unambiguous right of return to homes of origin as such, the established right to a remedy in the form of restitution is increasingly invoked in order to achieve return and other durable solutions.

A review of four restitution case-studies—the Czech Republic, South Africa, Bosnia, and Guatemala—reflects how these developments have played out in practice. Restitution in the Czech Republic aimed to partially reconstitute the property relations that preceded communist nationalizations. Initially, the “cut-off date” selected for restitution excluded Jewish victims of the Nazis, as well as some three million ethnic Germans expelled from the Czech lands shortly before the communist takeover. A further citizenship requirement excluded thousands of exiles who defected and had their properties confiscated during the communist period. This restrictive approach was accompanied by highly decentralized procedures, which included few guarantees that the law would be applied consistently throughout the country. Although the Czech restitution program aspired to restore a measure of justice in the wake of communist dictatorship, it did not clearly correspond to a human rights based conception of reparations.

Property restitution also played an important role in the transition from apartheid in South Africa, where discriminatory confiscations left the black majority holding less than twenty percent of the land. South Africa’s restitution program is more clearly addressed toward righting individual wrongs, but its delivery has been complicated by its subordination to a broader, politically contentious land redistribution program. As a result, the decision of many restitution claimants to seek compensation rather than return to their land has been seen as undermining the postapartheid government’s commitment to increasing the overall proportion of black landownership. However, recent commitments by the government to complete the process have increased the chance that restitution—if not full redistribution of land—will be achieved in a timely manner.

Bosnian restitution was an overtly human rights based remedy for resolving displacement, but was dependent on—and complicated by—massive international intervention. Restitution was conceived of as a way to secure the return of the two million civilians displaced in Bosnia’s 1992–1995 conflict, both for their own good and in order to facilitate the policies of host countries that wished to sustainably repatriate large Bosnian refugee populations. However, the practical difficulties involved in seeking to undo displacement through return led to a change of focus, with restitution coming to be seen primarily as a remedy in and of itself. This greatly expedited the restitution of 200,000 claimed homes, supporting the return of about half of those displaced by the conflict and restoring an important economic asset to those who chose not to return.

Guatemala, on the other hand, illustrates the risks inherent in raising expectations regarding restitution and return in the absence of either domestic or international resolve to guarantee full implementation. Government suppression of a largely indigenous insurgency in the early 1990s led to the displacement of between one and two million Guatemalans. However, the provisions on restitution set out in the subsequent peace accords did not create clear precedence for victims of displacement vis-à-vis those who subsequently occupied their land. As a result, many victims of the conflict had to be satisfied with government commitments to provide alternate land elsewhere, a promise that was not fully borne out due to inadequate funding as well as the ongoing neglect of those groups most marginalized by virtue of their displacement.

Drawing on these case studies, this study makes the following recommendations regarding how restitution programming in transitional settings should best be conceived and implemented:

  • Where restitution is included as a component of transitional programming, it should be conceived of in a way that supports parallel efforts to provide broader redress and pre-empt future conflict. In contemporary transitional settings, reparations and restitution should be understood as functionally separate but complementary responses to human rights violations, each of which should be available in proportion to manifest need.
  • Restitution processes should also be designed to complement broader, development-related efforts to end or pre-empt conflicts over land and property. In this context, restitution is usually best seen as a provisional measure applying legal criteria to right specific wrongs and should only be coordinated—not conflated—with long-term reform efforts based on overtly political considerations.
  • In order for restitution programs to succeed on their own terms and avoid raising false expectations, their goals should be clearly conceived and mutually complementary. Fundamentally, restitution should be conceived of as a legal remedy available on equal terms to all victims of wrongful dispossession.
  • Restitution can also provide an important durable solution for ending the dislocation of refugees and IDPs by restoring homes that can be returned to permanently or leased, sold, or exchanged in order to finance resettlement elsewhere in the country or abroad. The common tendency to privilege return over other durable solutions should be viewed cautiously as it may become a rationale for conditioning restitution upon return, jeopardizing the fundamental right of all victims of displacement to a remedy.
  • In terms of procedure, restitution programs seeking to address widespread and systematic violations of property rights should be set up as streamlined administrative programs with relaxed evidentiary rules.
  • Restitution programs should be based on clear parameters, and any “cut-off date” for claims should encompass the entire time period during which relevant violations occurred.
  • Restitution programs should extend to significant, settled rights to occupy and use homes and lands, even where they fall short of full formal title.
  • Restitution programs should set out clear rules balancing the rights of claimants against those of subsequent occupants. Because subsequent occupants may develop legitimate rights in abandoned property with the passage of time, there is no hard and fast rule, but precedence should generally be given to claimants, with consideration of compensation for subsequent occupants deemed to have acquired bona fide interests in contested property.

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