RESOLUTION OF PROPERTY DISPUTES AND THE RIGHT TO RETURN

The resolution of disputes over property ownership and occupation in Eastern Slavonia is intimately linked to the resolution of such disputes throughout the former Yugoslavia. Fighting over the past five years has led to several waves of expulsions that have a direct impact on Eastern Slavonia. The Serbs in Eastern Slavonia most vulnerable to housing disputes are those who have already been displaced once, during and after the Croatian military offensives of May and August 1995 in the former Sector West and the Krajina, respectively. For many of these Serbs, return to their original homes has been difficult, if not impossible. Many of their homes have been destroyed or are now occupied by Croats displaced from other regions in Croatia and also from Bosnia-Hercegovina and the Federal Republic of Yugoslavia (FRY). For many of these displaced Croats, in turn, return to their original homes outside of Croatia is impossible because their houses too have been destroyed, or are now occupied by Bosnian Serbs.

Perhaps the most significant threat to the peaceful reintegration of Eastern Slavonia will be disputes over property ownership and the inability of displaced persons to return to their homes. Fundamentally, the issue may be summarized as follows - what will be the result when a family of displaced Croats returns to their home in Eastern Slavonia and finds that it is currently occupied by a family of displaced Serbs? Many representatives of the Croatian government, international organizations and NGOs recognize that the resolution of these issues is essential for a peaceful transfer of authority. Yet, only days before the elections, the legal regime governing these issues remains unclear. Despite Croatia's obligations under the Basic Agreement to protect the rights of all persons to return to their original homes, Croatian laws governing property issues arising from the conflict and subsequent population movements are either vague about their applicability to Eastern Slavonia or, in conjunction withgovernment actions, clearly operate against a comprehensive solution by making it more difficult for displaced Serbs to return to their original homes, or otherwise dispose of their property.

A comprehensive review of relevant laws is beyond the scope of this report; however, a brief analysis of a few laws illustrates the extent to which these laws have exacerbated the problem. The Law on the Temporary Takeover and Administration of Specified Property exemplifies some of the legal hurdles facing displaced Serbs seeking to regain their homes following the 1995 offensives. Passed in September 1995, this law places all homes and other property abandoned by their owners in the Krajina (among other places) in the "temporary administration" of the Republic of Croatia.11 Under the law, temporary possession and usage of the property can be given to Croats, including displaced persons and refugees as well as families of killed or missing Croatian soldiers.12 The law prohibits the sale or other disposition of the property by the owner once it has passed into government administration.13 As passed in September 1995, the law permitted owners ninety days to "return to Croatia" and file a claim on their property in order to retain possession. For nearly all persons to whom the law applied, return to Croatia for filing such a claim by December 27, 1995 was impossible.14 The law was eventually amended to remove the time limit for filing a claim. The law also calls for municipalities and towns to create commissions that would implement the law and handle property claims. However, according to the U.N. Centre for Human Rights, as of early March 1997, not a single case brought before these property commissions had resulted in the Serb owner regaining possession of a property.15 Even if the original owner were to win his case before a local housing commission, provisions of the law prohibit evictions of temporary residents until alternate accommodations can be found,16 a protection also provided by other legislation (see below).

The Law on the Temporary Takeover and Administration of Specified Property does not provide a time limit for how long such property may be occupied by a temporary resident. That issue is addressed in another law, the1996 Law on Territories Under the Special Care of the State, which grants temporary residency to abandoned property for up to ten years. After ten years, the temporary occupant may obtain full ownership rights. The law does provide the original owner the opportunity to reclaim his or her property. However, in order to do so, the owner must go to the records office where the property is located, posing a significant obstacle. The 1993 Law on the Status of Displaced Persons and Refugees creates an additional hurdle to the recovery of such property. A 1995 amendment to that law prohibits the eviction of displaced persons and refugees from their temporary accommodations "until the conditions for their return are fulfilled, or until, with their consent, another appropriate lodging is provided in the place of their accommodation."17 As noted below, other elements of this 1995 amendment may mean that similar protections do not apply to many ethnic Serbs. Other laws that benefit displaced persons also appear to exclude the displaced Serbs in Eastern Slavonia from their application. For example, the 1996 Reconstruction Act states as its basic purpose the reconstruction of areas of the Republic of Croatia "which have been temporarily occupied during the war waged against the Republic of Croatia, or which have been exposed to destruction and consequences of aggressive acts of Serb and Montenegrin military and paramilitary forces."18 As the displaced Serbs' arrival in Eastern Slavonia was triggered by Croatian military offensives, the Reconstruction Act would not apply to them.

Faced with this tangled skein of legislation, both Serb and Croat DPs have little idea what will happen with property disputes in Eastern Slavonia. As a result, Croat DPs in Osijek are determined to return to their houses, but do not know when they will be permitted to do so. Similarly, Serb DPs who are evaluating whether they should remain in Croatia have no idea how much time they have to make this decision, although several told Human Rights Watch/Helsinki that they believed Croats would be able to return to claim their houses - many currently occupied by the displaced Serbs - once elections are held. Mirko Tankosic, deputy head of the Croatian government's Office for Transitional Administration, told Human Rights Watch/Helsinki in mid-March that there was still no schedule governing when Croats would be permitted to return or when Serb DPs would have to leave their current houses, stating only that he expected that population movements would not occur until after the elections, by which time the Croatian government would have promulgated its proposal for property and return issues (see below).19 Serb DPs regularly receive telephone calls (or even visits, in some areas) from the original owners of the houses in which they are living demanding that they leave immediately. In the absence of a system for resolving these issues, Serb DPs have no recourse and expect the worst - eviction from their current houses after the elections. As long as return to their own homes remains difficult, such fears encourage Serbs to leave Eastern Slavonia.

A Comprehensive Solution

In late February 1997, UNHCR and UNTAES drafted and sent to the Croatian government for comment a "start-up and recovery package" - essentially a draft proposal for a comprehensive resolution of property and return issues in Croatia. Among other things, the proposal recommends the creation of a property commission (modeled on the property commission currently operating in Bosnia and Hercegovina) and a "land bank" which would facilitate the exchange of real estate.20 According to the Croatian government's Office for Transitional Administration, the Croatian government has objected to many aspects of this proposal, and has promised UNHCR that it would offer its own detailed and complete proposal for a comprehensive resolution of property issues by late March.21 No such detailed proposal had been announced as of the printing of this report.

After responding to UNHCR's start-up and recovery package, the Croatian government announced on March 25, 1997 that it intends to focus on a two-way return program, meaning the voluntary return of displaced Serbs to the Krajina and Sector West and the return of Croat DPs to Eastern Slavonia.22 While such declarations are welcome, they do not advance beyond the commitments the Croatian government made in the Basic Agreement and serve to avoid creating the detailed mechanism for the resolution of property ownership and return that is already long overdue.

The government's plan to create a two-way return program is doomed to fail if it does not sufficiently address the Krajina side of the equation - the problems of Serb houses in the Krajina that are currently occupied by Croat DPs from Bosnia and the Federal Republic of Yugoslavia (Kosovo and Vojvodina). Even as the government makes promises to the international community regarding the return of Serbs to Krajina and Sector West, it is enticing ethnic Croats to settle in these same areas. For example, the government has passed several laws permitting ethnic Croats from outside Croatia to obtain temporary residential rights for empty houses in that area.23 Human Rights Watch/Helsinki does not dispute the obligation of the Croatian government to meet the needs of refugees and displaced persons. However, adopting these particular arrangements makes it more difficult for displaced Serbs to return to homes in those areas and may well force them to leave Croatia for Serbia or Serb-controlled areas of Bosnia. This could, in turn, lead to further expulsions of non-Serbs in areas of Bosnia where they settle.

Property and housing disputes will be among the most serious issues arising from the transfer of authority in Eastern Slavonia. Nevertheless, only days before the elections are scheduled to take place, there is no plan in place for the resolution of such disputes. Failure of the Croatian government to clarify the framework for resolving these issues has unnecessarily fueled tensions and convinced many Serbs that their only option is to leave Eastern Slavonia. Disputes over property issues in the future could endanger stability in the region especially after UNTAES leaves, as returning Croats may seek to evict those displaced Serbs who have chosen to stay.

A comprehensive solution to resolving issues of property ownership and returns will undoubtedly require financial assistance from the international community. Human Rights Watch/Helsinki calls on the U.S. government and members of the E.U. to provide aid to enable Croatia to resolve these issues. However, such aid should be given with the condition that it be disbursed in a way that ensures that the monies are used proportionately to assist both displaced Serbs and Croats from Croatia.

The Right to Return

The right of displaced persons to return to their homes, an issue closely linked to the resolution of property disputes and central to the Basic Agreement, is addressed several times in the Basic Agreement. Paragraph 4 states that the "Transitional Administration shall ensure the possibility for the return of refugees and displaced persons to their homes of origin." Furthermore, paragraph 7 states that all "persons have the right to return freely to their place of residence in the region and to live there in conditions of security. All persons who have left the region or who have come to the region with previous permanent residence in Croatia have the right to live in the region."24 This latter provision grants both Croats who have left the region as well as Croatian Serbs who have moved into the region the right to live there. However, it also specifies that those who have fled the region (mostly Croats) have a right to return, without specifying a complementary right of Serb DPs currently living in Eastern Slavonia to return to their homes in areas outside of Eastern Slavonia, such as the Krajina. Paragraph 4 of the Basic Agreement provides thatall refugees and DPs have the right to return to their homes. However, paragraph 4 assigns implementation of that right to UNTAES, rather than the Croatian government. Assigning this obligation to an entity other than (and not expressly in addition to) the government of Croatia creates a problem in itself, as the obligation for resolving the issue of returns must ultimately lie with the government of Croatia. This problem is compounded by the fact that UNTAES does not have the mandated jurisdiction (and, therefore, the means) to ensure return in safety and dignity to areas outside of the region. This flaw in the Basic Agreement has provoked serious uncertainty over the possibility of return for all displaced persons.

The link between the right to return and the resolution of property disputes is addressed directly in article 14(2) of Croatia's 1993 Law on the Status of Displaced Persons and Refugees, amended in 1995: "All procedures regarding coercive removal of displaced persons shall be suspended until the conditions for their return are fulfilled, or until, with their consent, another appropriate lodging is provided in the place of their accommodation, or some other place."25 The apparent reassurances in this law are, however, seriously undermined by other portions of that law. A fundamental problem lies with the law's temporal restriction. Article 2 of the June 1995 Amendment to the 1993 Law on the Status of Displaced Persons and Refugees, limits application of Article 14(2)'s protection from eviction only to those who were already settled into temporary accommodations by March 1, 1995. This time restriction essentially excludes displaced Serbs in Eastern Slavonia from this protection since the vast majority of them arrived in the region after the Croatian army's May and August military offensives.

In the March 1997 issue of the UNTAES Bulletin, with only a month to go before elections, Mr. Klein and other unnamed senior U.N. officials could only cobble together a vague reply to questions from the Serbs in Eastern Slavonia regarding the return of displaced persons:

The return of displaced persons is not an issue over which UNTAES has full responsibility. But, in cooperation with UNHCR, UNTAES is working on a whole programme of reconstruction, compensation, and returns. This programme addresses both the issues of those who want to return home, and alternatives for those who are not able to return to their original homes.26

Displaced Serbs in Eastern Slavonia must make a decision whether to stay or take their families out of the region on the basis of just such vague, aspirational statements.

Protection Concerns

Even when displaced Serbs have returned to their original homes, they have faced serious threats to their security. Groups of Serbs who have gone through UNTAES and UNHCR programs to visit their former homes in the Krajina have faced hostility from their neighbors and local officials, discouraging many from carrying through with thoughts of return. On March 26, 1997, the day after the Croatian government announced its accord on a two-way return, the first ethnic Serb family to return from Eastern Slavonia to their original home in the town of Kistanje, near Knin, was evicted within hours of arrival by a crowd of Croats.27 As the family was leaving, representatives of the local housing commission asked them to sign a document saying that they were leaving voluntarily, which they refused to do.

On the whole, however, there have not been many incidents of abuse against Serbs returning from Eastern Slavonia for the simple reason that relatively few have returned - and the majority of the returnees have gone back to relatively good return conditions, mostly to the former Sector West. As of mid-March 1997, approximately 450 Serbs had returned to the Krajina and Sector West from Eastern Slavonia under United Nations administered programs.28 Most of these returns were to family, friends, or to houses that were unoccupied and mostly intact.

Until early March 1997, returns had been conducted by both UNHCR and UNTAES Civil Affairs with only loose coordination. Since then, UNHCR and UNTAES have begun meeting more regularly in order to coordinate returns more closely. UNTAES told Human Rights Watch/Helsinki that the monitoring of returns will be conducted by a host of international organizations including ECMM, OSCE and UNHCR.

While Human Rights Watch/Helsinki welcomes the involvement of all organizations in the monitoring and protection of the human rights of returnees, we urge UNHCR to exercise its lead role in monitoring and other protection functions relating to Serbs who have returned to regions outside Eastern Slavonia. Such a role would be consistent with the U.N. secretary-general's recommendation that UNHCR operate as the lead agency in the "coordinat[ion] and control" of voluntary return of displaced persons and refugees.29 With its institutional expertise and experience, as well as its network of protection officers in areas such as the Krajina, UNHCR would be the most appropriate agency for supervising the protection of returnees.

Ultimately, of course, the responsibility for protection of Croatian citizens lies with the government of Croatia. In addition to the Kistanje eviction (see above), the following examples illustrate the questions that have arisen about the willingness and ability of local Croatian government officials to implement the national government's pledges regarding displaced persons' right to return. The first involves a UNHCR pilot return project from the Baranja triangle region in the northwestern area of Eastern Slavonia. This pilot project envisioned the return of four displaced families (three Serb and one Muslim) from their temporary accommodations in the village of Novi Bezdan to their original homes - the original homes for three of the families were in Tvrdjavica, a suburb north of Osijek (just outside Eastern Slavonia), and for one displaced Serb man, in Petrinja (Sector West). The pilot project sought to encourage and facilitate return other than for family reunion. As described below, the project has run into significant difficulties and has stalled.

The principal obstacle to return for the Baranja triangle families has been hostility from original neighbors of the DPs as well as from local authorities. At a meeting on February 12, 1997 between the DPs and residents and officials of Tvrdjavica, three men in Croatian army uniforms verbally abused and otherwise threatened the prospective returnees, and neighbors also made their hostility plain. In March, these neighbors told Human Rights Watch/Helsinki they still strongly opposed the return of the Serb families.30 Such difficulties have, in turn,highlighted the problems with alternatives to return, including compensation for lost property. The Basic Agreement expressly provided for compensation for lost property.31 However, many NGO and IGO workers believe that Croatia simply does not have enough money to offer sufficient compensation. And, in fact, by early March, Human Rights Watch/Helsinki learned from interviews with two of the four families that they had given up entirely on the possibility of return, only to find negotiations with the Croatian government deadlocked on the issue of the amount of compensation.32

Events in the village of Nijemci set a grim precedent for return and property issues. On November 1, 1996, UNTAES pulled back the zone of separation in the southern area of Sector East, shifting the border to the bridge linking the northern and southern halves of Nijemci. Croatian citizens were given access to the area south of the bridge, including several villages. Transitional Police Force (TPF) patrols and UNTAES Civilian Police monitoring was to continue; Croatian police are not yet permitted to enter the newly opened region. In response to the border shift, over 130 of the approximately 150 Serbs living in Nijemci fled, most of them to other villages in Eastern Slavonia. In early March, only seventeen Serbs remained behind. Several of the Serbs living and working in a small café near the bridge have received frequent threatening phone calls from Croats, and an article from a local newspaper urging Croats to boycott the café was posted on their front door. More seriously, the Serbs have faced harassment from officers of the Croatian special police force who, as noted above, are not supposed to be in the region.33 In one of the most serious of these incidents, on the evening of December 10, 1996, two armed, uniformed officers of the Croatian special police force and a plainclothes police officer threatened and attempted to assault a young Serb man and an UNTAES Civilian Police officer from the United States. The following night, three plainclothes officers of the Croatian special police force again threatened and harassed the Serbs living there, including displaying their weapons and threatening to force the young Serb man to convert to Catholicism and change his name. Several Croat TPF members from other towns in Eastern Slavonia either stood by idly or took part in the harassment, later helping the special forces officers to flee the scene. (In these incidents, the Serb TPF members or a UNTAES Civilian Police monitor left the scene to seek assistance from other TPF officers and UNTAES Civilian Police monitors, as well as from soldiers of the Jordanian battalion stationed in the town. Each time, the offenders left before assistance arrived.) In response to protests from UNTAES, the Croatian special police force officers were allegedly transferred to posts in another area.34 As the problems with returns discussed above make it clear that, if a comprehensive return program is to be successful, the government must take concrete, detailed steps to ensure that vigilante and terrorist acts by extremists on both sides do not frustrate the right of both Croats and Serbs to return to their original homes.

Serb Exodus

As Serbs in Eastern Slavonia face increasing pressure to leave the region, the basic question of where they can live gains increasing urgency. Between June 1996 and January 1997, some 650 Serb households left the region,while 450 households left in the first ten days of February 1997.35 UNTAES has reported that as many as 2,000 Serb families left in all of February.36 There are, however, no accurate counts of the number of Serbs who have left the region. UNTAES estimates are based on tabulations from brief conversations by border monitors with Serbs who are leaving. However, some of the Serbs, including those who have moved much of their furniture to Serbia in case they have to flee in earnest after the transition of authority, then return to Eastern Slavonia - so that they can adopt the wait-and-see approach UNTAES has called for. These border tabulations also omit statistics of Serbs who may leave the region through points other than the legal border crossings.37 Nevertheless, the statistics appear to indicate an increase in the rate of exodus.

Most of the Serbs crossing the border points with their belongings have noted Vojvodina as their destination. However, an increasing number of Serbs are entering Republika Srpska, around Bosanska Gradiska and Banja Luka and in Brcko. It is not clear what sorts of arrangements Republika Srpska has made to accommodate the incoming Serbs.38 However, in the February session of the Republika Srpska Assembly, a statement was issued welcoming Serbs leaving Eastern Slavonia for Bosnia. If critical issues including property and the right to return remain unresolved, more Serbs are likely to leave. As local Serb leaders in the town of Baranjsko Petrovo Selo (near the Hungarian border) told UNTAES, without answers to these fundamental questions, all the people in the town will have no choice but to leave. Several Serbs that Human Rights Watch/Helsinki spoke to said that without any idea of what their housing options are, they could not in good conscience keep their families in Eastern Slavonia.39 The Croatian government's failure to offer a comprehensive solution to property and return issues is, de facto, compelling Serbs to leave the region.

By complying with the Croatian government's desire to hold elections while permitting these issues to remain unanswered, the international community risks unwittingly playing a role in a future Serb exodus. Furthermore, a massive exodus would not only represent a tragedy for Eastern Slavonia but would merely shift the possibility of conflict into Bosnia. If the international community is serious about protection of human rights in Eastern Slavonia and throughout the region, it must pressure Croatia to resolve these issues of property ownership and return quickly and, in the meantime, to assure the displaced Serb population that they will not face eviction until they are able to return to their original homes or can move into acceptable, alternative housing. If alternative housing is to be provided, the Croatian government must nonetheless facilitate the ultimate return home for displaced persons if that is what they choose.