By Huma Haider
Introduction
Forced migration and displacement is a profound injustice. It undermines human dignity and security and eliminates choice about where and how people want to live. An important aspect of redress is thus the right of refugees and internally displaced persons (IDPs) to freely choose a solution to their dislocation. This right of free choice is guaranteed under humanitarian and human rights law. The UN Refugee Agency (UNHCR) has outlined three durable solutions for refugees: voluntary repatriation, local integration, or resettlement in a third location. Designed originally with refugees in mind, these solutions have been extended to IDPs, through the Guiding Principles on Internal Displacement. The options are adapted to: return to their former homes, integration at the location they were displaced to, or resettlement to another part of the country.
The right to choose among these options, however, has often been an artificial one, as it is exercised in the context of a political and normative framework that prioritises one solution over another. This paper demonstrates this phenomenon in the context of post-war Bosnia and Herzegovina. It argues that political aims have dominated what should be a neutral humanitarian process focused on supporting the needs of refugees and internally displaced persons. The desire to reverse ethnic cleansing in BiH has resulted in interventions designed to promote return exclusively. This has deprived refugees and IDPs of the right to choose among the three durable solutions and, in the context of weak conditions for sustainable return, has left many without any durable solution.
This paper first discusses the politics behind the push for return in post-war Bosnia and Herzegovina and the initial difficulties encountered in promoting return. It then explores the sustainability of return and the on-going challenges faced by returnees. Finally, it looks at recent developments that aim to provide refugees, IDPs and returnees with access to durable options in the form of support for sustainable return and, for the first time, support for integration. Despite this shift, however, the humanitarian space continues to be controlled by politics, hindering efforts to move toward the provision of neutral assistance.
Why a focus on return in Bosnia and Herzegovina?
The forced displacement of an estimated 2.2 million persons (UNHCR) during the 1992-1995 war in Bosnia and Herzegovina (BiH) was not a by-product of war but rather its very purpose. It was part of the policy of 'ethnic cleansing,' the term used to describe 'the elimination by the dominant ethnic group of a given territory of members of other ethnic groups within that territory' (United Nations, 1995: 65-66). This was achieved in BiH through a variety of methods, including harassment, beatings, torture, rape, summary executions, forced relocation, confiscation of property and destruction of homes, places of worship and cultural institutions. By the end of the war, 90 percent of the pre-war Bosnian Serb population left the area now called the Federation of BiH and over 95 percent of pre-war Bosnian Croat and Bosniak (Bosnian Muslim) inhabitants left what is now Republika Srpska (Rosand, 1998). The Dayton Peace Agreement, signed in December 1995, put an end to the fighting and officially divided the country into two entities: the Bosniak-Croat Federation and Republika Srpska (RS). At the same time, the Dayton Agreement guaranteed all refugees and displaced persons the right to return to their original homes. Annex 7 of the agreement stipulates:
All refugees and displaced persons have the right freely to return to their homes of origin. They 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 . . . The Parties undertake to create in their territories the political, economic, and social conditions conducive to the voluntary return and harmonious reintegration of refugees and displaced persons, without preference for any particular group.
Return was considered essential in BiH for various reasons. There was concern over the burden of high numbers of Bosnian refugees on third countries and moreover the belief that the return of refugees and displaced persons was essential to peacebuilding. As in other post-war contexts, unresolved problems of displacement were considered to be destabilising and a threat to peacebuilding efforts. The return of refugees and IDPs came to be seen as a central component of peacebuilding - a way to restore pre-war 'normalcy', demonstrate confidence in the post-war order and promote stability. This was considered to be particularly important in the case of BiH, where displacement had been a goal of the war. The UNHCR, the Office of the High Representative (the chief civilian peace implementation agency, established under Dayton) and other international agencies decided that the best option for peacebuilding and reconciliation in the long run would be one that sought to reverse ethnic cleansing by promoting return to homes of origin. The pre-war 1991 census was used as a baseline of return (Tuthail and Dahlman, 2005). The fulfilment of the right to return became a crucial measure of the success of the Dayton Agreement and the hope for a restored multicultural Bosnia. It was also considered necessary to send a message that ethnic cleansing would not be tolerated by the international community.
The challenges in implementing the return policy
The implementation of this right to return policy was tremendously difficult. Not only were 1.2 million Bosnian refugees scattered overseas but approximately one million were also displaced internally (UNHCR). Many abandoned houses were occupied by internally displaced Bosnians, whose houses, in turn, were occupied by people displaced from other areas. Return was an extremely complex and politically charged process. At one end, some Bosniaks insisted that displaced persons should if necessary be forced to return collectively. On the other, nationalist Serb and Croat parties resisted return and supported the local integration of displaced persons to maintain their own local ethnic majority (IDMC, 2009). Local authorities, eager to consolidate war-time gains vehemently blocked minority returns, which are returns by refugees and IDPs to areas in which they are now part of a minority group. They often mobilised whole communities of displaced persons to violently confront minority returnees and to destroy their property. With wounds from the war still festering, individuals and groups felt safer among their own and were open to such mobilisation.
After persistent obstruction by local authorities to return, the international community decided, in 1999, to depoliticise the process by shifting the focus away from the politicised right to return to an individual right to property, grounded in rule of law. Under this new Property Law Implementation Plan (PLIP), a legal-administrative framework was set up that required property claims to be processed on a neutral 'first-come, first-served' basis and in a standardised and transparent manner. The impact of this reorientation was tremendous. By December 2003, close to 93 percent of 216,026 real property restitution claims had been processed. Although it eliminated the explicit push for return, the PLIP, by breaking the impasse on property repossession, allowed for significant progress in recorded minority returns. Such returns throughout BiH increased from an annual total of 41,007 in 1999 to 102,111 in 2002 (UNHCR BiH, 2005).
Restitution, or compensation in lieu, is considered a free-standing autonomous right, as confirmed by the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (The Pinheiro Principles, 2 and 21). It should be independent of return. Despite the shift in focus to property restitution in Bosnia through the PLIP, restitution did not however become the end goal. Return was still considered the primary approach to redress, and property restitution was seen only as a mechanism to promote return. This is evident in the decision by the international community to bypass compensation for lost properties, provided for in Annex 7. No mechanisms for compensation - in particular, no compensation fund, were established as it was feared that the availability of compensation would deter return. Instead where restitution was not possible, donors sought to provide funds for housing reconstruction. The underlying philosophy behind the restitution process remained the political goal of promoting return to one's original home.
The reliance on property restitution and denial of compensation in lieu has resulted in peculiar differential treatment among Bosnian refugees and displaced persons based on property damage. Those whose properties were largely intact benefited from the property restitution process and have been able to choose whether to return or whether to sell their property and use proceeds to establish themselves in their area of displacement or in a new location. Sale proceeds became a form of de facto compensation. On the other hand Bosnians, whose properties had been destroyed, did not have this choice due to the absence of an official compensation scheme. In addition, those who didn't own property in the first place have also been denied support. It is thus unclear whether some IDPs who have expressed a preference for return have done so out of free choice or because it has been the only way to secure assistance.
Are returns genuine? Is there really a 'home' to return to?
Fourteen years since the Dayton Peace Agreement, more than one million former refugees and IDPs are reported to have returned to their pre-war homes. These returns include a significant 467,297 in minority returns (UNHCR statistical summary, as at 31 December, 2008). The political motives behind the promotion of return in Bosnia and Herzegovina is not to take away from a key reason why return is a sought after 'durable solution': it is often the refugee's or displaced person's profound wish to return home. This may in some cases be a choice made in congruence with political motives - an intense disagreement with and wish to counter the objectives and/or outcomes of war. For many though, the wish stems simply from the fervent longing for home.
The problem with this context, however, is that 'home' as remembered by refugees and displaced persons no longer exists. This is due not only to the profound changes wreaked by the war, but in the case of BiH, also due to the insufficient attention and resources given to factors that would help to sustain a 'home', such as livelihoods, employment opportunities and social renewal.
The international community and subsequently the Bosnian government has taken a narrow view of 'homes of origin', focusing solely on geographic locality and the physical structure of a house. Since 'home' has been equated with property, property restitution has been associated with the fulfilment of the right to return to one's original home. Programming and funding were thus directed primarily at restitution and reconstruction processes. This neglected the idea of 'home' as not only a physical place of residence, but also a site of social and cultural relations and a place that provides well-being, opportunities and hope for the current and next generation (Jansen, 2006; Stefansson, 2006). What many Bosnians returned to was far removed from this. Old neighbours had disappeared. Tensions, deep resentments and residual fear within reshaped communities were widespread. Employment and income-generating opportunities were sparse, discrimination against minority returnees prevalent and poverty rampant. These factors have hindered reintegration, an essential component of sustainable return. Reintegration as defined by the UNHCR is the 'universal enjoyment of full political, civil, economic, social and cultural rights' (UNHCR, 2004: 5). In the absence of satisfactory international and national efforts to ameliorate this situation in BiH, difficulties persist.
The present unemployment rate in Bosnia and Herzegovina is estimated at around 40 percent. A recent UN Development Programme (UNDP) report on social exclusion states that approximately 50 percent of the population in both the Federation and RS live below the poverty line or are at risk of falling below it at any time. It also stresses that minority populations throughout the country are usually poorer. Minority populations experience discrimination in employment and the provision of public services. Social renewal is also lagging. Ethnic divisions persist and are fuelled by nationalist leaders. The absence of jobs and prevalence of discrimination also exacerbates tensions, hindering reintegration of minority returnees and rendering national minorities some of the most socially excluded groups. Self-exclusion and alienation from interethnic social networks is also pervasive (UNDP, 2007). Segregation in 'mixed' communities - in schools, workplaces and social networks has prevented meaningful interaction across ethnic divides that could help transform relationships and rehumanise each group in the eyes of the other. In such a context, the recreation of 'home' was and is still considered by many refugees and displaced persons to be easier in a different location from the pre-war home. This sentiment has also been the case for many classified as returnees.
Over one million returns, of which 467,297 are minority returns, and a PLIP implementation rate of 93.3 percent are indeed remarkable statistics. However, decontextualized statistics hide much of the reality of the restitution process. In some cases, high restitution rates actually correspond with high rates of sale or exchange, instead of return (Philpott, 2005). Even where houses are not sold, official return statistics do not tell the full story. The Housing Verification and Monitoring Unit of OHR's Reconstruction and Return Task Force (established in 1999) found that while about three-quarters of pre-war occupants return to their reconstructed houses, only a part of the family actually returns in a third of those cases. Elderly family members return permanently, whereas younger people and school-age children remain for purposes of employment and education in areas in which they are part of the majority (ICG, 2002). Another trend is 'reverse returns,' where returnees relocate back to their areas of displacement. Walter Kälin, representative of the UN secretary-general on the human rights of IDPs, has highlighted that the number of persons actually living in their pre-war homes is lower than return statistics suggest, as a large number of returnees have left again due to poor conditions (Kälin, 2005; see also UNHCR, 2007).
In an effort to demonstrate success in the implementation of the Dayton Peace Agreement and of peacebuilding in Bosnia and Herzegovina, the international community has preferred to emphasise reported returns. By over-looking the weak conditions for sustainable return and related developments such as consolidation of geographic ethnic divisions through the property sales market, the official return statistics gave instead the perception that the political objective of recreating the pre-war multiethnic map was materialising. This, in turn, served to validate the policy to push for return at the exclusion of other options.
The need for genuine durable solutions
Return is not a genuine durable solution if the conditions to make it sustainable are absent. Although housing restitution has been welcomed by refugees and IDPs for reasons of morality, justice and economic rehabilitation, sustainable return also requires access to jobs and livelihoods, social protection and renewed social relationships. The intense focus on restitution and the failure to address these other needs has rendered return untenable; and for many Bosnians, 'sustainable relocation' has become their desired option (Steffansson, 2006).
As this compromises the political project of reversing ethnic cleansing, the international community and subsequently the Bosnian government, have avoided providing support for the option of local integration in ethnic majority areas or resettlement. The treatment of these options as 'taboo', internationally and locally, has put the lives of many refugees and IDPs on hold for years.
There are still, as of June 2008, 125,000 registered IDPs - just over 10% of the million internally displaced by the conflict. Among these IDPs are many members of vulnerable groups: the elderly - who lack any source of income, minors, women - many of whom head households, and persons who are physically and mentally challenged, highly traumatised and/or chronically ill. Approximately 7,000 of these vulnerable IDPs still live in some form of sub-standard temporary collective accommodation. They live far below the poverty line at the margins of society.
Many of the 125,000 registered IDPs are unable or unwilling to return. Over a decade and a half in displacement has rendered return an unrealistic option for them. For the most vulnerable, return is also not a viable option. The humanitarian plight of these IDPs has lead to increased calls by the UNHCR, the Council of Europe and Representative of the UN secretary-general on the human rights of IDPs, Walter Kälin, among others, for the Bosnian government and the international community to provide alternatives to return (Council of Europe, 2008 and 2009; Kälin, 2009; UNHCR, 2007). Internally displaced persons should be able to freely opt against return and to choose instead to integrate locally or build new lives elsewhere. Alongside, they should be provided with support for new permanent housing and decent living conditions that is not contingent on a decision to return.
There have also been numerous calls over the last few years to address the sustainability of return. Walter Kälin stressed after a recent visit to Bosnia that the success of the return process should be measured by the real opportunities available to returnees, particularly minority returnees, to rebuild their lives and reintegrate into society in their places of origin (Kälin, 2009).
The Revised Strategy for the Implementation of Annex 7 of the Dayton Peace Agreement, developed by the Ministry for Human Rights and Refugees in 2007-2008, seeks to address these concerns. Although it still focuses on facilitating people's return to their original homes, it also emphasises the need to sustain those who have already returned and to provide alternative solutions for those still displaced and unable to return, in particular members of vulnerable groups. For the first time, compensation for property and integration of displaced persons are considered as options.
The formulation of this revised strategy is a crucial development. It gives prominence to humanitarian concerns and seeks to provide some choice to displaced persons, albeit cautiously. By moving away from the prior exclusive focus on housing reconstruction, it aims to address the problems and failures experienced on the ground.
The strategy has also been complemented with funding. In 2008, the Bosnian government provided an unprecedented amount of money (KM 38.8 million) to the Return Fund. This money is to be directed not only for housing, but also to create the conditions for sustainable return, in particular employment, education, health and social protection. The bigger test however, will be whether funding is provided by the government and by donors to support alternatives to return - in particular, for the normalisation of living conditions of IDPs in areas of displacement in which they form part of the majority group.
Conclusion
Ethnic cleansing should never be condoned. It is abhorrent, devastating and so destructive. This is why the international community had opposed the option of local integration. It feared that it would indirectly support and cement ethnic cleansing. This is also why integration has been such a sensitive issue within Bosnia and Herzegovina.
It is likely that under the current conditions in BiH, the option of integration and the provision of compensation, as well as the potential for continued sales in the housing market will indeed result in a consolidation of ethnic divisions. This does not sit right. It seems to allow the goals of the political and military leaders who orchestrated the war, and of nationalist leaders who continue to propagate these sentiments to succeed over the many who yearn for their previous way of life. It does feel like a failure. It signals the loss of an ideal so precious - the loss of a multicultural society in which different groups live in harmony.
The politicisation of a humanitarian process however, is also not acceptable. Refugees and displaced persons must not be instrumentalised for political objectives, regardless of what these objectives are. This risk of politicisation is especially high where as in the case of BiH displacement itself was politicised at the outset as a deliberate strategy of the war. Durable solutions must be framed and maintained as strictly a humanitarian issue, and the choice between them must lie in the hands of refugees and displaced persons. Taking away this choice for political reasons deprives them yet again of the agency to decide where and how they want to live.
Additionally, where refugees and displaced persons have been able to decide against return, this should not be perceived negatively. It is easy in the context of a political and normative approach that favours return to fall into the trap of viewing such decisions critically. It is necessary to realise that there is nothing wrong with Bosnians who choose to live in their countries of asylum or in their areas of displacement, where they may be able to create a new sustainable 'home'. Their decisions are rationale and based on necessity, and moreover - it is their right to make such a choice.
This does not mean that international agencies and the government should stop striving to create conditions that would allow for sustainable return. These conditions are still desperately needed for existing returnees, for refugees and displaced persons currently wishing to return, and for others who may later opt for return, should it come to represent a viable option. For return to be a durable solution, it must be premised on a holistic notion of return and of 'home' - one that goes beyond property restitution and physical reconstruction and provides for economic opportunities, social protection and the (re)building of relationships.
The Revised Strategy, which provides hope for attention to durable solutions at the policy and operational level, was adopted in January 2009 by the Council of Ministers of Bosnia and Herzegovina. Its adoption by Parliament unfortunately has been held up for months, due to a political stalemate. The Serb representatives want the strategy to be amended to provide greater emphasis on helping people who wish to remain in their current place of residence; whereas Bosniak representatives want government financing to be directed almost exclusively to support for return (OHR, May 2009). The politics of the war and of post-war reconstruction are still being fought out. Despite some welcomed progress, politics still dominates the humanitarian framework at the expense of Bosnians struggling to re-establish their lives and yearning for some semblance of a 'home'.
Fourteen years on, this is where we are. The politics must subside. It is time for genuine options and truly durable solutions. The well-being and lives of a vast number of Bosnians depends on it.
Huma Haider is a Research Fellow at the Governance and Social Development Resource Centre, University of Birmingham, UK. The author worked in Bosnia and Herzegovina in 2007 at the War Crimes Chamber and conducted field research on issues of return in 2006.
Acknowledgment
I would like to thank Edin Hodži? (Puls demokratije, Open Society Fund, Bosnia and Herzegovina) for his interest in this research and for helping me think through the issues. An earlier version of this paper was published on the Puls demokratije site.
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