The Right to Compensation in Bosnia: An Unfulfilled Promise and a Challege to International Law

Cornell International Law Journal

Volumn 33, Issue 1, 2000, Pages 113-158

  Rosand, Eric ^a  

^a NONE

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EID: 0034385646     PISSN: 00108812     EISSN: None     Source Type: Journal    
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References (314)

1. Warren Christopher, Statement at the Opening of the Balkan Proximity Peace Talks (Nov. 1, 1995) in WARREN CHRISTOPHER, IN THE STREAM OF HISTORY: SHAPING FOREIGN POLICY FOR A NEW ERA 362 (1998).
2. Mike O'Connor, Fearful Serb is Journeying, Almost Home in Bosnia, N.Y. TIMES, Sept. 18, 1998, at A9.
3. Id.
4. See id.
5. See SUSAN L. WOODWARD, BALKAN TRAGEDY: CHAOS AND DISSOLUTION AFTER THE COLD WAR 315 (1995) (discussing the decision of Bosnian Prime Minister Haris Silajdzic to urge the adoption of the term Bosniak instead of Muslim). The term Bosniak reflects Bosnian Muslims' nationality, as opposed to their religion. The Human Rights Watch group explains: Their current status as "Muslims" is viewed by some as an inaccurate label because it defines a people's nationality solely on the basis of their religious belief. Furthermore, the term "Muslim(s)" used as a nationality title is disapproved of by many countries in which Islam is the dominant religion, as well as by many "Muslims" of Bosnia-Herzegovina themselves. Northwestern Bosnia: Human Rights Abuses during a Cease-Fire and Peace Negotiations, HUMAN RIGHTS WATCH/HELSINKI, Feb. 1996, at 6.
6. See SUSAN L. WOODWARD, BALKAN TRAGEDY: CHAOS AND DISSOLUTION AFTER THE COLD WAR 315 (1995) (discussing the decision of Bosnian Prime Minister Haris Silajdzic to urge the adoption of the term Bosniak instead of Muslim). The term Bosniak reflects Bosnian Muslims' nationality, as opposed to their religion. The Human Rights Watch group explains: Their current status as "Muslims" is viewed by some as an inaccurate label because it defines a people's nationality solely on the basis of their religious belief. Furthermore, the term "Muslim(s)" used as a nationality title is disapproved of by many countries in which Islam is the dominant religion, as well as by many "Muslims" of Bosnia-Herzegovina themselves. Northwestern Bosnia: Human Rights Abuses during a Cease-Fire and Peace Negotiations, HUMAN RIGHTS WATCH/HELSINKI, Feb. 1996, at 6.
7. For purposes of this article, the term Serbs refers to Bosnian-Serbs and the term Croats refers to Bosnian-Croats, i.e., those Serbs and Croats who live or lived in Bosnia. The Bosnian war was one of the conflicts that erupted following the dissolution of the former Socialist Federal Republic of Yugoslavia (SFRY). In June 1991, following Slovenia's and Croatia's withdrawal from the SFRY after unsuccessful negotiations among the six republics, Prime Minister Markovic and the Parliament ordered the Yugoslav National Army (JNA) to maintain the territorial integrity of Yugoslavia. These efforts proved unsuccessful in Slovenia. In Croatia, however, the JNA forces, together with the Krajina Serbs (Serbs living in the Krajina region of the Republic of Croatia), managed to gain control of some 30% of Croatian territory. The fighting then spread into Bosnia shortly after the Republic of Bosnia and Herzegovina declared full independence from the SFRY on March 3, 1992. For a detailed discussion of the war, see, for example, LAURA SILBER & ALLAN LITTLE, YUGOSLAVIA: DEATH OF A NATION (1996); MISHA GLENNY, THE FALL OF YUGOSLAVIA (3d ed. 1996); CHRISTOPHER BENNETT, YUGOSLAVIA'S BLOODY COLLAPSE: CAUSES, COURSE AND CONSEQUENCES (1995).
8. For purposes of this article, the term Serbs refers to Bosnian-Serbs and the term Croats refers to Bosnian-Croats, i.e., those Serbs and Croats who live or lived in Bosnia. The Bosnian war was one of the conflicts that erupted following the dissolution of the former Socialist Federal Republic of Yugoslavia (SFRY). In June 1991, following Slovenia's and Croatia's withdrawal from the SFRY after unsuccessful negotiations among the six republics, Prime Minister Markovic and the Parliament ordered the Yugoslav National Army (JNA) to maintain the territorial integrity of Yugoslavia. These efforts proved unsuccessful in Slovenia. In Croatia, however, the JNA forces, together with the Krajina Serbs (Serbs living in the Krajina region of the Republic of Croatia), managed to gain control of some 30% of Croatian territory. The fighting then spread into Bosnia shortly after the Republic of Bosnia and Herzegovina declared full independence from the SFRY on March 3, 1992. For a detailed discussion of the war, see, for example, LAURA SILBER & ALLAN LITTLE, YUGOSLAVIA: DEATH OF A NATION (1996); MISHA GLENNY, THE FALL OF YUGOSLAVIA (3d ed. 1996); CHRISTOPHER BENNETT, YUGOSLAVIA'S BLOODY COLLAPSE: CAUSES, COURSE AND CONSEQUENCES (1995).
9. For purposes of this article, the term Serbs refers to Bosnian-Serbs and the term Croats refers to Bosnian-Croats, i.e., those Serbs and Croats who live or lived in Bosnia. The Bosnian war was one of the conflicts that erupted following the dissolution of the former Socialist Federal Republic of Yugoslavia (SFRY). In June 1991, following Slovenia's and Croatia's withdrawal from the SFRY after unsuccessful negotiations among the six republics, Prime Minister Markovic and the Parliament ordered the Yugoslav National Army (JNA) to maintain the territorial integrity of Yugoslavia. These efforts proved unsuccessful in Slovenia. In Croatia, however, the JNA forces, together with the Krajina Serbs (Serbs living in the Krajina region of the Republic of Croatia), managed to gain control of some 30% of Croatian territory. The fighting then spread into Bosnia shortly after the Republic of Bosnia and Herzegovina declared full independence from the SFRY on March 3, 1992. For a detailed discussion of the war, see, for example, LAURA SILBER & ALLAN LITTLE, YUGOSLAVIA: DEATH OF A NATION (1996); MISHA GLENNY, THE FALL OF YUGOSLAVIA (3d ed. 1996); CHRISTOPHER BENNETT, YUGOSLAVIA'S BLOODY COLLAPSE: CAUSES, COURSE AND CONSEQUENCES (1995).
10. See David L. Bosco, Reintegrating Bosnia: A Progress Report, WASH. Q., Spring 1998, at 65; Robert S. Gelbard, Statement Before the Senate Foreign Relations Committee Subcommittee on Europe, in FED. NEWS SERV., July 17, 1997, available in LEXIS, News Library, Curnws File; Arthur C. Helton, Bosnia's Unjust Laws, WASH. POST, Aug. 26, 1997, at A15; Elisabeth Rehn, Report on The Situation of Human Rights in the Territory of the Former Yugoslavia ¶ 7, U.N. Doc. E/CN.4/1997/56 (1997); Amnesty International, 'Who's Living in my House?' Obstacles to the Safe Return of Refugees and Displaced People 1, EUR 63/01/97 (Mar. 19, 1997) [hereinafter Amnesty International, Who's Living in my House?]; James A. Schear, Bosnia's Post-Dayton Traumas, 104 FOREIGN POL'Y 87, 94 (1996).
11. See David L. Bosco, Reintegrating Bosnia: A Progress Report, WASH. Q., Spring 1998, at 65; Robert S. Gelbard, Statement Before the Senate Foreign Relations Committee Subcommittee on Europe, in FED. NEWS SERV., July 17, 1997, available in LEXIS, News Library, Curnws File; Arthur C. Helton, Bosnia's Unjust Laws, WASH. POST, Aug. 26, 1997, at A15; Elisabeth Rehn, Report on The Situation of Human Rights in the Territory of the Former Yugoslavia ¶ 7, U.N. Doc. E/CN.4/1997/56 (1997); Amnesty International, 'Who's Living in my House?' Obstacles to the Safe Return of Refugees and Displaced People 1, EUR 63/01/97 (Mar. 19, 1997) [hereinafter Amnesty International, Who's Living in my House?]; James A. Schear, Bosnia's Post-Dayton Traumas, 104 FOREIGN POL'Y 87, 94 (1996).
12. See David L. Bosco, Reintegrating Bosnia: A Progress Report, WASH. Q., Spring 1998, at 65; Robert S. Gelbard, Statement Before the Senate Foreign Relations Committee Subcommittee on Europe, in FED. NEWS SERV., July 17, 1997, available in LEXIS, News Library, Curnws File; Arthur C. Helton, Bosnia's Unjust Laws, WASH. POST, Aug. 26, 1997, at A15; Elisabeth Rehn, Report on The Situation of Human Rights in the Territory of the Former Yugoslavia ¶ 7, U.N. Doc. E/CN.4/1997/56 (1997); Amnesty International, 'Who's Living in my House?' Obstacles to the Safe Return of Refugees and Displaced People 1, EUR 63/01/97 (Mar. 19, 1997) [hereinafter Amnesty International, Who's Living in my House?]; James A. Schear, Bosnia's Post-Dayton Traumas, 104 FOREIGN POL'Y 87, 94 (1996).
13. See David L. Bosco, Reintegrating Bosnia: A Progress Report, WASH. Q., Spring 1998, at 65; Robert S. Gelbard, Statement Before the Senate Foreign Relations Committee Subcommittee on Europe, in FED. NEWS SERV., July 17, 1997, available in LEXIS, News Library, Curnws File; Arthur C. Helton, Bosnia's Unjust Laws, WASH. POST, Aug. 26, 1997, at A15; Elisabeth Rehn, Report on The Situation of Human Rights in the Territory of the Former Yugoslavia ¶ 7, U.N. Doc. E/CN.4/1997/56 (1997); Amnesty International, 'Who's Living in my House?' Obstacles to the Safe Return of Refugees and Displaced People 1, EUR 63/01/97 (Mar. 19, 1997) [hereinafter Amnesty International, Who's Living in my House?]; James A. Schear, Bosnia's Post-Dayton Traumas, 104 FOREIGN POL'Y 87, 94 (1996).
14. See David L. Bosco, Reintegrating Bosnia: A Progress Report, WASH. Q., Spring 1998, at 65; Robert S. Gelbard, Statement Before the Senate Foreign Relations Committee Subcommittee on Europe, in FED. NEWS SERV., July 17, 1997, available in LEXIS, News Library, Curnws File; Arthur C. Helton, Bosnia's Unjust Laws, WASH. POST, Aug. 26, 1997, at A15; Elisabeth Rehn, Report on The Situation of Human Rights in the Territory of the Former Yugoslavia ¶ 7, U.N. Doc. E/CN.4/1997/56 (1997); Amnesty International, 'Who's Living in my House?' Obstacles to the Safe Return of Refugees and Displaced People 1, EUR 63/01/97 (Mar. 19, 1997) [hereinafter Amnesty International, Who's Living in my House?]; James A. Schear, Bosnia's Post-Dayton Traumas, 104 FOREIGN POL'Y 87, 94 (1996).
15. See David L. Bosco, Reintegrating Bosnia: A Progress Report, WASH. Q., Spring 1998, at 65; Robert S. Gelbard, Statement Before the Senate Foreign Relations Committee Subcommittee on Europe, in FED. NEWS SERV., July 17, 1997, available in LEXIS, News Library, Curnws File; Arthur C. Helton, Bosnia's Unjust Laws, WASH. POST, Aug. 26, 1997, at A15; Elisabeth Rehn, Report on The Situation of Human Rights in the Territory of the Former Yugoslavia ¶ 7, U.N. Doc. E/CN.4/1997/56 (1997); Amnesty International, 'Who's Living in my House?' Obstacles to the Safe Return of Refugees and Displaced People 1, EUR 63/01/97 (Mar. 19, 1997) [hereinafter Amnesty International, Who's Living in my House?]; James A. Schear, Bosnia's Post-Dayton Traumas, 104 FOREIGN POL'Y 87, 94 (1996).
16. See generally General Framework Agreement for Peace in Bosnia and Herzegovina with Annexes, Dec. 14, 1995, Bosn.-Herz.-Croat.-Yugo., 35 I.L.M. 75 [hereinafter DPA]. The terms of this agreement were negotiated and agreed to in Dayton, Ohio. For a detailed account of the negotiations leading to the agreement, see RICHARD HOLBROOKE, To END A WAR (1998). The instrument concluded in Dayton and signed in Paris was the General Framework Agreement for Peace (GFAP) in Bosnia and Herzegovina, to which 11 annexes were attached. Under the GFAP, the parties agreed to accept a single state, Bosnia and Herzegovina (Bosnia), consisting of two entities: the Federation of Bosnia and Herzegovina (the Federation) comprising 51% of the territory of Bosnia in a number of cantons divided ethnically between Bosniaks and Croats, and the largely Serb Republika Srpska (the RS), comprising 49% of the territory. Under the State (i.e., Bosnian) Constitution, laid out in Annex 4, each entity has its own parliament, government, police force, and army, and carries out most of the functions of a state. See DPA, supra, Annex 4, art. III, ¶ 2. The central government of Bosnia, on the other hand, has a loose form consisting of a parliament, council of ministers, and a three-person presidency. Thus, it is responsible for a very limited number of issues: foreign affairs and trade, customs and monetary policy, immigration, inter-entity criminal law enforcement, communications, transport, and air traffic control. See DPA, supra, Annex 4, art. III, ¶ 1.
17. The sovereign state of the Republic of Bosnia and Herzegovina declared its independence on March 3, 1992. Upon the entry into force of the DPA, however, the Republic of Bosnia and Herzegovina became "Bosnia and Herzegovina." See DPA, supra note 8, Annex 4, art. I.
18. Warren Christopher, Keynote Remarks at the Initialing of the Balkan Proximity Peace Talks Agreement, in THE INTERNATIONAL CONFERENCE ON THE FORMER YUGOSLAVIA 342 (B.G. Ramcharan ed., 1997).
19. "Refugees" are those who have left their homes and fled to a country outside of Bosnia, whereas "displaced persons" are those who fled their homes but remained in Bosnia. This article shall refer to both refugees and displaced persons as "dislocated persons." The 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol, Article 1(2), defines a refugee as any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150, 152; Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267, 268. The Guiding Principles on Internal Displacement submitted by the Secretary-General's Special Representative for Internally Displaced Persons to the U.N. Commission on Human Rights, defines internally displaced persons as: persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border. Annex ¶ 2, U.N. Doc. E/CN.4/1998/53/Add2. See generally FRANCIS DENG & ROBERTA COHEN, MASSES IN FLIGHT: THE GLOBAL CRISIS OF INTERNAL DISCONTENT (1998) (discussing the informal legal regime that applies to protect displaced persons). Despite this difference in definition, the root causes that generate refugees and displaced persons are essentially the same: human rights abuses and armed conflicts. Nevertheless, those who cross international borders are protected by a series of international treaties and organizations. See, e.g., Convention Relating to the Status of Refugees Protocol, supra; Protocal Relating to the Status of Refugees, supra. Those who remain within the national border receive minimal formal legal or institutional protection.
20. A sense among the survivors of the Bosnian war that "justice" has followed the atrocities of the war may be necessary to ensure that the violence that has plagued the former Yugoslavia for the entire 20th century does not continue. One observer wrote: [t]he resentments that Serbs harbored against Croats for the unpunished crimes of the Ustasha state during World War II was a major factor in the catastrophic developments in ex-Yugoslavia more than four decades later. Justice provides closure; its absence not only leaves wounds open, but its very denial rubs salt in them. ARYEH NEIER, WAR CRIMES: BRUTALITY, GENOCIDE, TERROR, AND THE STRUGGLE FOR JUSTICE 213 (1998). See also Peace, Justice and Support for the Yugoslavia War Crimes Tribunal: Hearing Before the House Int'l Relations Comm., 104th Cong. 9 (1995) (statement of Thomas S. Warrick, Special Counsel, Coalition for Int'l Justice) (stating that today's victims want justice before the cycle of violence resumes in a very short amount of time).
21. A sense among the survivors of the Bosnian war that "justice" has followed the atrocities of the war may be necessary to ensure that the violence that has plagued the former Yugoslavia for the entire 20th century does not continue. One observer wrote: [t]he resentments that Serbs harbored against Croats for the unpunished crimes of the Ustasha state during World War II was a major factor in the catastrophic developments in ex-Yugoslavia more than four decades later. Justice provides closure; its absence not only leaves wounds open, but its very denial rubs salt in them. ARYEH NEIER, WAR CRIMES: BRUTALITY, GENOCIDE, TERROR, AND THE STRUGGLE FOR JUSTICE 213 (1998). See also Peace, Justice and Support for the Yugoslavia War Crimes Tribunal: Hearing Before the House Int'l Relations Comm., 104th Cong. 9 (1995) (statement of Thomas S. Warrick, Special Counsel, Coalition for Int'l Justice) (stating that today's victims want justice before the cycle of violence resumes in a very short amount of time).
22. For a discussion of how the inclusion of the possibility of compensation in Annex Seven weakens the right to return, see, for example, Marcus Cox, The Right to Return Home: International Intervention and Ethnic Cleansing in Bosnia and Herzegovina, 47 INT'L & COMP. L.Q. 599, 611 (1998) [hereinafter Cox, The Right to Return].
23. Article VII establishes an "independent Commission for Displaced Persons and Refugees," later renamed the Commission on Real Property Claims for Displaced Persons and Refugees (CRPC). See DPA, supra note 8, annex 7, art. VII, at 138.
24. Although "coined in the early 1980s by the Serbian ultranationalist leader Vojislav Seselj . . . it was only after the outbreak of hostilities in 1991 that the term attained its sad notoriety." Alfred de Zayas, The Right to One's Homeland, Ethnic Cleansing, and the International Right to One's Homeland, 6 CRIM. L.F. 257, 260 n.12 (1995) [hereinafter de Zayas, The Right to One's Homeland]. According to the Commission of Experts, established pursuant to Security Council Resolution 780 to investigate serious violations of international humanitarian law committed in the former Yugoslavia, the expression "ethnic cleansing" means "rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area." Letter from the Secretary- General to the President of the Security Council, Feb. 9, 1993, U.N. Doc. S/25274 (1993) (transmitting Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, ¶¶ 55-56 (1992)). The Special Rapporteur to the U.N. Commission on Human Rights concluded that the term "ethnic cleansing" refers to the elimination by the ethnic group asserting control over a given territory of member of other ethnic groups. See Report on The Situation of Human Rights in the Territory of the Former Yugoslavia, ¶ 9, U.N. Doc. A/47/666 (1992) [hereinafter Periodic Report]. For a complete discussion of the expression and its origin, see generally ANDREW BELL- FIALKOFF, ETHNIC CLEANSING (1996); Drazen Petrovic, Ethnic Cleansing: An Attempt at Methodology, 5 EUR. J. INT'L L. 342 (1994).
25. Although "coined in the early 1980s by the Serbian ultranationalist leader Vojislav Seselj . . . it was only after the outbreak of hostilities in 1991 that the term attained its sad notoriety." Alfred de Zayas, The Right to One's Homeland, Ethnic Cleansing, and the International Right to One's Homeland, 6 CRIM. L.F. 257, 260 n.12 (1995) [hereinafter de Zayas, The Right to One's Homeland]. According to the Commission of Experts, established pursuant to Security Council Resolution 780 to investigate serious violations of international humanitarian law committed in the former Yugoslavia, the expression "ethnic cleansing" means "rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area." Letter from the Secretary-General to the President of the Security Council, Feb. 9, 1993, U.N. Doc. S/25274 (1993) (transmitting Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, ¶¶ 55-56 (1992)). The Special Rapporteur to the U.N. Commission on Human Rights concluded that the term "ethnic cleansing" refers to the elimination by the ethnic group asserting control over a given territory of member of other ethnic groups. See Report on The Situation of Human Rights in the Territory of the Former Yugoslavia, ¶ 9, U.N. Doc. A/47/666 (1992) [hereinafter Periodic Report]. For a complete discussion of the expression and its origin, see generally ANDREW BELL- FIALKOFF, ETHNIC CLEANSING (1996); Drazen Petrovic, Ethnic Cleansing: An Attempt at Methodology, 5 EUR. J. INT'L L. 342 (1994).
26. Although "coined in the early 1980s by the Serbian ultranationalist leader Vojislav Seselj . . . it was only after the outbreak of hostilities in 1991 that the term attained its sad notoriety." Alfred de Zayas, The Right to One's Homeland, Ethnic Cleansing, and the International Right to One's Homeland, 6 CRIM. L.F. 257, 260 n.12 (1995) [hereinafter de Zayas, The Right to One's Homeland]. According to the Commission of Experts, established pursuant to Security Council Resolution 780 to investigate serious violations of international humanitarian law committed in the former Yugoslavia, the expression "ethnic cleansing" means "rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area." Letter from the Secretary- General to the President of the Security Council, Feb. 9, 1993, U.N. Doc. S/25274 (1993) (transmitting Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, ¶¶ 55-56 (1992)). The Special Rapporteur to the U.N. Commission on Human Rights concluded that the term "ethnic cleansing" refers to the elimination by the ethnic group asserting control over a given territory of member of other ethnic groups. See Report on The Situation of Human Rights in the Territory of the Former Yugoslavia, ¶ 9, U.N. Doc. A/47/666 (1992) [hereinafter Periodic Report]. For a complete discussion of the expression and its origin, see generally ANDREW BELL- FIALKOFF, ETHNIC CLEANSING (1996); Drazen Petrovic, Ethnic Cleansing: An Attempt at Methodology, 5 EUR. J. INT'L L. 342 (1994).
27. Although "coined in the early 1980s by the Serbian ultranationalist leader Vojislav Seselj . . . it was only after the outbreak of hostilities in 1991 that the term attained its sad notoriety." Alfred de Zayas, The Right to One's Homeland, Ethnic Cleansing, and the International Right to One's Homeland, 6 CRIM. L.F. 257, 260 n.12 (1995) [hereinafter de Zayas, The Right to One's Homeland]. According to the Commission of Experts, established pursuant to Security Council Resolution 780 to investigate serious violations of international humanitarian law committed in the former Yugoslavia, the expression "ethnic cleansing" means "rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area." Letter from the Secretary- General to the President of the Security Council, Feb. 9, 1993, U.N. Doc. S/25274 (1993) (transmitting Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, ¶¶ 55-56 (1992)). The Special Rapporteur to the U.N. Commission on Human Rights concluded that the term "ethnic cleansing" refers to the elimination by the ethnic group asserting control over a given territory of member of other ethnic groups. See Report on The Situation of Human Rights in the Territory of the Former Yugoslavia, ¶ 9, U.N. Doc. A/47/666 (1992) [hereinafter Periodic Report]. For a complete discussion of the expression and its origin, see generally ANDREW BELL-FIALKOFF, ETHNIC CLEANSING (1996); Drazen Petrovic, Ethnic Cleansing: An Attempt at Methodology, 5 EUR. J. INT'L L. 342 (1994).
28. Although "coined in the early 1980s by the Serbian ultranationalist leader Vojislav Seselj . . . it was only after the outbreak of hostilities in 1991 that the term attained its sad notoriety." Alfred de Zayas, The Right to One's Homeland, Ethnic Cleansing, and the International Right to One's Homeland, 6 CRIM. L.F. 257, 260 n.12 (1995) [hereinafter de Zayas, The Right to One's Homeland]. According to the Commission of Experts, established pursuant to Security Council Resolution 780 to investigate serious violations of international humanitarian law committed in the former Yugoslavia, the expression "ethnic cleansing" means "rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area." Letter from the Secretary- General to the President of the Security Council, Feb. 9, 1993, U.N. Doc. S/25274 (1993) (transmitting Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, ¶¶ 55-56 (1992)). The Special Rapporteur to the U.N. Commission on Human Rights concluded that the term "ethnic cleansing" refers to the elimination by the ethnic group asserting control over a given territory of member of other ethnic groups. See Report on The Situation of Human Rights in the Territory of the Former Yugoslavia, ¶ 9, U.N. Doc. A/47/666 (1992) [hereinafter Periodic Report]. For a complete discussion of the expression and its origin, see generally ANDREW BELL- FIALKOFF, ETHNIC CLEANSING (1996); Drazen Petrovic, Ethnic Cleansing: An Attempt at Methodology, 5 EUR. J. INT'L L. 342 (1994).
29. In the context of the discussions of Bosnia in this Article, the right to compensation refers to the right of refugees and displaced persons to receive compensation for their real property in lieu of return. For a discussion of their right of compensation for other losses, see, for example, Amnesty International, Bosnia: The International Community's Responsibility to Ensure Human Rights, EUR 63/14/96 (June 1996), 〈http:// www.amnesty.it/ailib/aipub/1996/EUR/46301496.htm〉 [hereinafter Amnesty International, The International Community's Responsibility to Ensure Human Rights].
30. See Marcus Cox, Strategic Approaches to International Intervention in Bosnia and Herzegovina, in THIRD INTERNATIONAL SECURITY FORUM, CLUSTER OF COMPETENCE, THE REHABILITATION OF WAR-TORN SOCIETIES 38 (1998) [hereinafter Cox, Strategic Approaches].
31. SILBER & LITTLE, supra note 6, at 244.
32. DEP'T OF PUB. INFORMATION, U.N., THE UNITED NATIONS AND THE SITUATION IN THE FORMER YUGOSLAVIA 65-66 (1995) [hereinafter U.N. DEP'T OF PUB. INFORMATION]. See also Petrovic, supra note 15.
33. Three broad categories of population movements took place during the war: (1) "spontaneous flight," resulting from direct and indirect methods inducing people to leave, (2) "organized transfers and deportations of populations," and (3) "exchanges of persons and property." Christa Meindersma, Population Exchanges: International Law and State Practice - Part 2, 9 INT'L J. REFUGEE L. 613, 615 (1997) [hereinafter Meindersma-Part 2].
34. According to the 1991 census, Bosnia had a total population of just under 4.4 million, broken down by ethnicity as follows: 43% Bosniak, 31% Serb, 17% Croat, and 8% other. See Marcus Cox, Return, Relocation and Property Rights, a discussion paper 3 (Dec. 1997) [hereinafter Cox Report]. The ethnic groups were broadly distributed in each region. Whereas the rural villages and hamlets were often dominated by one ethnic group, urban areas were generally ethnically mixed. In fact, 30-40% of all marriages in urban areas in Bosnia were mixed marriages. See ROBERT DONIA & JOHN V.A. FINE, BOSNIA AND HERZEGOVINA: A TRADITION BETRAYED 9 (1994). UNHCR published rough figures which illustrate how dramatic the population shifts were. Before the war there were 301,641 Muslims and Croats in the eastern Bosnian and southern Herzegovina region, excluding Gorazde. By the end of 1995 this number had shrunk to an estimated 4000. Similarly, the pre-war Muslim population of Tuzla of 316,000 more than doubled to 659,000. In contrast, the pre-war Serbian population of Zenica, which was 79,355, fell to 16,000 and Tuzla's Serb population plummeted from 82,235 to an estimated 15,000. See U.N. High Commissioner for Refugees, Information Notes on Former Yugoslavia, Dec. 1995, No. 12/95, at 8 [hereinafter UNHCR Information Notes]; TIM JUDAH, THE SERBS: HISTORY, MYTH & THE DESTRUCTION OF YUGOSLAVIA 291 (1997). At the end of 1997, there were overwhelming ethnic majorities in all parts of Bosnia, with the highest minority ratios at about 13% in the Tuzla-Podrinje and Sarajevo cantons. See U.N. High Commissioner for Refugees, Statistics Package: December 1, 1997.
35. According to the 1991 census, Bosnia had a total population of just under 4.4 million, broken down by ethnicity as follows: 43% Bosniak, 31% Serb, 17% Croat, and 8% other. See Marcus Cox, Return, Relocation and Property Rights, a discussion paper 3 (Dec. 1997) [hereinafter Cox Report]. The ethnic groups were broadly distributed in each region. Whereas the rural villages and hamlets were often dominated by one ethnic group, urban areas were generally ethnically mixed. In fact, 30-40% of all marriages in urban areas in Bosnia were mixed marriages. See ROBERT DONIA & JOHN V.A. FINE, BOSNIA AND HERZEGOVINA: A TRADITION BETRAYED 9 (1994). UNHCR published rough figures which illustrate how dramatic the population shifts were. Before the war there were 301,641 Muslims and Croats in the eastern Bosnian and southern Herzegovina region, excluding Gorazde. By the end of 1995 this number had shrunk to an estimated 4000. Similarly, the pre-war Muslim population of Tuzla of 316,000 more than doubled to 659,000. In contrast, the pre-war Serbian population of Zenica, which was 79,355, fell to 16,000 and Tuzla's Serb population plummeted from 82,235 to an estimated 15,000. See U.N. High Commissioner for Refugees, Information Notes on Former Yugoslavia, Dec. 1995, No. 12/95, at 8 [hereinafter UNHCR Information Notes]; TIM JUDAH, THE SERBS: HISTORY, MYTH & THE DESTRUCTION OF YUGOSLAVIA 291 (1997). At the end of 1997, there were overwhelming ethnic majorities in all parts of Bosnia, with the highest minority ratios at about 13% in the Tuzla-Podrinje and Sarajevo cantons. See U.N. High Commissioner for Refugees, Statistics Package: December 1, 1997.
36. According to the 1991 census, Bosnia had a total population of just under 4.4 million, broken down by ethnicity as follows: 43% Bosniak, 31% Serb, 17% Croat, and 8% other. See Marcus Cox, Return, Relocation and Property Rights, a discussion paper 3 (Dec. 1997) [hereinafter Cox Report]. The ethnic groups were broadly distributed in each region. Whereas the rural villages and hamlets were often dominated by one ethnic group, urban areas were generally ethnically mixed. In fact, 30-40% of all marriages in urban areas in Bosnia were mixed marriages. See ROBERT DONIA & JOHN V.A. FINE, BOSNIA AND HERZEGOVINA: A TRADITION BETRAYED 9 (1994). UNHCR published rough figures which illustrate how dramatic the population shifts were. Before the war there were 301,641 Muslims and Croats in the eastern Bosnian and southern Herzegovina region, excluding Gorazde. By the end of 1995 this number had shrunk to an estimated 4000. Similarly, the pre-war Muslim population of Tuzla of 316,000 more than doubled to 659,000. In contrast, the pre-war Serbian population of Zenica, which was 79,355, fell to 16,000 and Tuzla's Serb population plummeted from 82,235 to an estimated 15,000. See U.N. High Commissioner for Refugees, Information Notes on Former Yugoslavia, Dec. 1995, No. 12/95, at 8 [hereinafter UNHCR Information Notes]; TIM JUDAH, THE SERBS: HISTORY, MYTH & THE DESTRUCTION OF YUGOSLAVIA 291 (1997). At the end of 1997, there were overwhelming ethnic majorities in all parts of Bosnia, with the highest minority ratios at about 13% in the Tuzla-Podrinje and Sarajevo cantons. See U.N. High Commissioner for Refugees, Statistics Package: December 1, 1997.
37. According to the 1991 census, Bosnia had a total population of just under 4.4 million, broken down by ethnicity as follows: 43% Bosniak, 31% Serb, 17% Croat, and 8% other. See Marcus Cox, Return, Relocation and Property Rights, a discussion paper 3 (Dec. 1997) [hereinafter Cox Report]. The ethnic groups were broadly distributed in each region. Whereas the rural villages and hamlets were often dominated by one ethnic group, urban areas were generally ethnically mixed. In fact, 30-40% of all marriages in urban areas in Bosnia were mixed marriages. See ROBERT DONIA & JOHN V.A. FINE, BOSNIA AND HERZEGOVINA: A TRADITION BETRAYED 9 (1994). UNHCR published rough figures which illustrate how dramatic the population shifts were. Before the war there were 301,641 Muslims and Croats in the eastern Bosnian and southern Herzegovina region, excluding Gorazde. By the end of 1995 this number had shrunk to an estimated 4000. Similarly, the pre-war Muslim population of Tuzla of 316,000 more than doubled to 659,000. In contrast, the pre-war Serbian population of Zenica, which was 79,355, fell to 16,000 and Tuzla's Serb population plummeted from 82,235 to an estimated 15,000. See U.N. High Commissioner for Refugees, Information Notes on Former Yugoslavia, Dec. 1995, No. 12/95, at 8 [hereinafter UNHCR Information Notes]; TIM JUDAH, THE SERBS: HISTORY, MYTH & THE DESTRUCTION OF YUGOSLAVIA 291 (1997). At the end of 1997, there were overwhelming ethnic majorities in all parts of Bosnia, with the highest minority ratios at about 13% in the Tuzla-Podrinje and Sarajevo cantons. See U.N. High Commissioner for Refugees, Statistics Package: December 1, 1997.
38. According to the 1991 census, Bosnia had a total population of just under 4.4 million, broken down by ethnicity as follows: 43% Bosniak, 31% Serb, 17% Croat, and 8% other. See Marcus Cox, Return, Relocation and Property Rights, a discussion paper 3 (Dec. 1997) [hereinafter Cox Report]. The ethnic groups were broadly distributed in each region. Whereas the rural villages and hamlets were often dominated by one ethnic group, urban areas were generally ethnically mixed. In fact, 30-40% of all marriages in urban areas in Bosnia were mixed marriages. See ROBERT DONIA & JOHN V.A. FINE, BOSNIA AND HERZEGOVINA: A TRADITION BETRAYED 9 (1994). UNHCR published rough figures which illustrate how dramatic the population shifts were. Before the war there were 301,641 Muslims and Croats in the eastern Bosnian and southern Herzegovina region, excluding Gorazde. By the end of 1995 this number had shrunk to an estimated 4000. Similarly, the pre-war Muslim population of Tuzla of 316,000 more than doubled to 659,000. In contrast, the pre-war Serbian population of Zenica, which was 79,355, fell to 16,000 and Tuzla's Serb population plummeted from 82,235 to an estimated 15,000. See U.N. High Commissioner for Refugees, Information Notes on Former Yugoslavia, Dec. 1995, No. 12/95, at 8 [hereinafter UNHCR Information Notes]; TIM JUDAH, THE SERBS: HISTORY, MYTH & THE DESTRUCTION OF YUGOSLAVIA 291 (1997). At the end of 1997, there were overwhelming ethnic majorities in all parts of Bosnia, with the highest minority ratios at about 13% in the Tuzla-Podrinje and Sarajevo cantons. See U.N. High Commissioner for Refugees, Statistics Package: December 1, 1997.
39. See ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE, MISSION TO BOSNIA AND HERZEGOVINA, SPECIAL REPORT: MUSICAL CHAIRS - PROPERTY PROBLEMS IN BOSNIA AND HERZEGOVINA 9 (July 1996). Most human rights organizations concluded that although the Bosniak extremists did commit ethnic-based atrocities and evictions, the Bosniak-dominated Bosnian Government did not engage in systematic "ethnic cleansing." See id.
40. See Report on The Situation in the Territory of the Former Yugoslavia to the 47th Session of the Security Council and the General Assembly, ¶ 6, U.N. Doc. A/47/666, S/ 24809 (1992).
41. Report on The Situation of Human Rights in the Territory of the Former Yugoslavia ¶ 11, U.N. Doc. E/CN.4/1992/S-1/9 (1992).
42. See INTERNATIONAL CENTRE FOR MIGRATION POLICY DEVELOPMENT, FRAMEWORK REPORT TO FACILITATE THE LAUNCHING OF THE COMMISSION STIPULATED IN ANNEX SEVEN CHAPTER TWO OF THE DAYTON AGREEMENTS ¶ 82 (1996) [hereinafter ICMPD REPORT]. See also INTERNATIONAL MGMT. GROUP, A DRAFT PROPOSAL FOR A PRELIMINARY APPROACH TO THE RETURN AND RELOCATION OF REFUGEES AND DISPLACED PERSONS IN BOSNIA AND HERZEGOVINA (1997) (estimating that in the Federation approximately 50% of all housing units were damaged during the war, with an additional 6% destroyed; whereas, in the RS, approximately 24% were damaged and an additional 5% were destroyed). Prior to the war, Bosnia's 4.4 million people were "housed in an estimated 1,295,000 units or approximately the same as the total number of households." THE WORLD BANK, BOSNIA AND HERZEGOVINA: EMERGENCY HOUSING REPAIR PROJECT - Technical Annex 1 (July 1996) (copy on file with author).
43. This includes 20,000 to 80,000 Bosnian Serbs who fled or were forced to leave the suburbs of Sarajevo when these were transferred from the RS to the Federation in the early spring of 1996. The DPA provided that authority over five Sarajevo suburbs would pass from the Republika Srpska to the Federation by March 19, 1996. DPA, supra note 8, Annex 1A, art. 4. Forty-five days after the transfer of authority from the U.N. Protection Force [UNPROFOR] to the NATO-led Implementation Force [IFOR], the two entities were to establish legal authority over the territory allotted to them by Annex 1A. For the Federation, this included gaining control over Sarajevo. During the months preceding the transfer, however, both sides fell well short of implementing the confidence building measures that would have allowed the transition to have occurred smoothly. Despite painstaking preparations, the orderly transfer of authority broke down when local police abandoned their neighborhoods, first to Serb thugs who forced evictions, carted off industrial equipment, and torched buildings, then to Bosnia[k] gangs who ransacked properties in advance of the arrival of the new police. When the dust settled, most of the Serbs had fled. Schear, supra note 7, at 93. See also Report on The Situation in the Territory of the Former Yugoslavia, at ¶ 36, U.N. Doc. E/CN.4/1996 (1996). Such actions went largely unopposed by either the U.N.'s civilian police monitors or IFOR. Schear, supra note 7, at 93.
44. See id. According to estimates, 540,000 or 39% of all Bosnian Serbs, 490,000 or 67% of Bosnian Croats, and 1,270,000 or 63% of Bosniaks were dislocated due to the war. ICMPD REPORT, supra note 25, at ¶ 81. Today, within the Federation, in six of the 10 cantons, ethnic minorities represent less than 10% of the population, and in the remaining cantons, local regions show a similar degree of ethnic separation. These figures are based on municipal registration figures provided to UNHCR by the Bosnia and Herzegovina Federation Institute of Statistics in Sarajevo, but are not completely accurate due to discrepancies in the registration process. See U.N. HIGH COMMISSIONER FOR REFUGEES, REGISTRATION OF REPATRIATES IN THE FEDERATION OF BOSNIA AND HERZEGOVINA AND ENTITLEMENT TO FOOD ASSISTANCE AND MEDICAL CARE (1997).
45. According to Ambassador Richard Holbrooke, the chief U.S. negotiator at Dayton, Dayton was not the creation of two different countries inside Bosnia. It's one country with [the] rights of refugees to return . . . a single, central government and a merger of two hostile forces, the Serbs, and the Croats and Muslims. . . . This is going to be one country. If it isn't, then we will have failed. Stephen S. Rosenfeld, Residue of Ethnic Cleansing, WASH. POST, Dec. 1, 1995, at A27. The International Commission on the Balkans, however, reporting shortly after the signing of the DPA, concluded that "the term 'multi-ethnic' has been overused and simplistically praised by Western commentators on Bosnia." ASPEN INSTITUTE BERLIN AND CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE, UNFINISHED PEACE: REPORT OF THE INTERNATIONAL COMMISSION ON THE BALKANS 84-85 (1996) [hereinafter UNFINISHED PEACE]. As the international community helps to rebuild Bosnia and implement the DPA, it should avoid "judging multi-ethnicity in post-war Bosnia by prewar norms [such as] the 1991 distribution of the population. . . . What might be established, and must be encouraged, are public norms and institutions that are not dominated by ethnicity." Id.
46. According to Ambassador Richard Holbrooke, the chief U.S. negotiator at Dayton, Dayton was not the creation of two different countries inside Bosnia. It's one country with [the] rights of refugees to return . . . a single, central government and a merger of two hostile forces, the Serbs, and the Croats and Muslims. . . . This is going to be one country. If it isn't, then we will have failed. Stephen S. Rosenfeld, Residue of Ethnic Cleansing, WASH. POST, Dec. 1, 1995, at A27. The International Commission on the Balkans, however, reporting shortly after the signing of the DPA, concluded that "the term 'multi-ethnic' has been overused and simplistically praised by Western commentators on Bosnia." ASPEN INSTITUTE BERLIN AND CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE, UNFINISHED PEACE: REPORT OF THE INTERNATIONAL COMMISSION ON THE BALKANS 84-85 (1996) [hereinafter UNFINISHED PEACE]. As the international community helps to rebuild Bosnia and implement the DPA, it should avoid "judging multi-ethnicity in post-war Bosnia by prewar norms [such as] the 1991 distribution of the population. . . . What might be established, and must be encouraged, are public norms and institutions that are not dominated by ethnicity." Id.
47. According to one Bosnia analyst, "[d]espite the almost bewildering array of initiatives and pilot projects, many of which are aimed at encouraging the return of ethnic minorities, the process of knitting Bosnia together has barely begun." Bosco, supra note 7, at 68. The international community has already spent well over one billion dollars in its efforts to recreate a multi-ethnic society. The Reconstruction and Return Task Force (RRTF) estimated the 1998 financial requirements for assisting the reintegration of displaced persons in Bosnia at $520 million. See Reconstruction and Return Task Force, Office of the High Representative, An Action Plan in Support of the Return of Refugees and Displaced Persons in Bosnia and Herzegovina (Mar. 1998) (visited Apr. 26, 1999) 〈http:// www.ohr.int/rrft/9803-01.htm〉 [hereinafter RRFT March 1998 Action Plan]. The Office of the High Representative (OHR) established the RRTF in January 1997 as a forum for coordination. The RRTF is chaired by the OHR and is made up of the UNHCR, the European Commission including the European Community Humanitarian Office, the CRPC, the World Bank, the International Management Group, the U.N. International Police Task Force, the Stabilization Force (SFOR), the U.N. Development Programme, the International Organization for Migration, the U.S. Government, and Germany's Federal Commissioner for Refugee Return and Related Reconstruction. For recent statistics, see, for example, International Crisis Group, Minority Return or Mass Relocation? (visited Apr. 26, 1999) 〈http://www.intl-crisis-group.org〉 [hereinafter ICG Report, Mass Relocation?].
48. According to one Bosnia analyst, "[d]espite the almost bewildering array of initiatives and pilot projects, many of which are aimed at encouraging the return of ethnic minorities, the process of knitting Bosnia together has barely begun." Bosco, supra note 7, at 68. The international community has already spent well over one billion dollars in its efforts to recreate a multi-ethnic society. The Reconstruction and Return Task Force (RRTF) estimated the 1998 financial requirements for assisting the reintegration of displaced persons in Bosnia at $520 million. See Reconstruction and Return Task Force, Office of the High Representative, An Action Plan in Support of the Return of Refugees and Displaced Persons in Bosnia and Herzegovina (Mar. 1998) (visited Apr. 26, 1999) 〈http:// www.ohr.int/rrft/9803-01.htm〉 [hereinafter RRFT March 1998 Action Plan]. The Office of the High Representative (OHR) established the RRTF in January 1997 as a forum for coordination. The RRTF is chaired by the OHR and is made up of the UNHCR, the European Commission including the European Community Humanitarian Office, the CRPC, the World Bank, the International Management Group, the U.N. International Police Task Force, the Stabilization Force (SFOR), the U.N. Development Programme, the International Organization for Migration, the U.S. Government, and Germany's Federal Commissioner for Refugee Return and Related Reconstruction. For recent statistics, see, for example, International Crisis Group, Minority Return or Mass Relocation? (visited Apr. 26, 1999) 〈http://www.intl-crisis-group.org〉 [hereinafter ICG Report, Mass Relocation?].
49. Critics of the DPA contend that the goal of recreating a multi-ethnic Bosnia, through the mass return of refugees and displaced person, cannot be achieved and that the United States should accept, if not encourage, the partition of Bosnia along ethnic lines. They believe that the DPA's political provisions, for example, giving refugees and displaced persons the right of return, will never be implemented. See HOLBROOKE, supra note 8, at 363. One commentator writes that the "aspiration to achieve a truly reunified and multiethnic Bosnia must be recognized as unrealistic," pointing to the fact that after more than two years of trying to reverse "ethnic cleansing," only a small percentage of displaced persons have returned to their pre-war homes. Michael O'Hanlon, Turning the Bosnia Ceasefire into Peace, BROOKINGS REV., Winter 1998, at 41, 42.
50. See, e.g., ICG Report, Mass Relocation?, supra note 29, at 3.
51. Of the Bosnians who have attained permanent status, 178,748 are in Croatia, 125,000 in Germany, 74,740 in Austria, 64,000 in the United States, 58,400 in Sweden, 47,578 in Canada, 27,500 in Slovenia, 26,300 in Australia, 21,421 in Denmark, 18,440 in the Netherlands, 12,885 in Norway, and 12,449 in Switzerland. See U.N. HIGH COMMISSIONER FOR REFUGEES, REPATRIATION AND RETURN OPERATION 1998 (1997), at 9.
52. According to UNHCR, four "durable" or "sustainable" solutions are available to the dislocated: (1) voluntary return to the pre-conflict home; (2) local integration in a country of asylum; (3) resettlement and (4) relocation, i.e., where refugees settle in their country of origin in a location other than their pre-conflict home. U.N. HIGH COMMISSIONER FOR REFUGEES, A REGIONAL STRATEGY FOR SUSTAINABLE RETURN ON THE FORMER YUGOSLAVIA ¶ 3.4 (1998) [hereinafter UNCHR REGIONAL STRATEGY].
53. ICG Report, Mass Relocation?, supra note 29.
54. Many were part of the majority ethnic group at their pre-war home before the war erupted. Whereas "majority returnees," those returning who are members of the current majority ethnic group at their place of origin, face typical problems in a post-war situation, such as damage to housing and infrastructure, scarcity of jobs, and war-related psychological trauma. "Minority returnees," those returning who are members of the current minority ethnic group at their place of origin, in addition to these difficulties, generally have to contend with hostility, harassment, and all of the different forms of discrimination that result from being the "other" in a political environment still being fueled by virulent nationalism. See International Crisis Group, ICG Report: Going Nowhere Fast (visited Apr. 26, 1999) 〈http://www.intl-crisis-group.org/projects/bosnia/ reports/bh22repl.htm〉. Displaced persons who have relocated to a majority area feel particularly threatened, as they fear being displaced again by the return of the pre-war inhabitants. See Cox, Strategic Approaches, supra note 17, at 24-30.
55. Many were part of the majority ethnic group at their pre-war home before the war erupted. Whereas "majority returnees," those returning who are members of the current majority ethnic group at their place of origin, face typical problems in a post-war situation, such as damage to housing and infrastructure, scarcity of jobs, and war-related psychological trauma. "Minority returnees," those returning who are members of the current minority ethnic group at their place of origin, in addition to these difficulties, generally have to contend with hostility, harassment, and all of the different forms of discrimination that result from being the "other" in a political environment still being fueled by virulent nationalism. See International Crisis Group, ICG Report: Going Nowhere Fast (visited Apr. 26, 1999) 〈http://www.intl-crisis-group.org/projects/bosnia/ reports/bh22repl.htm〉. Displaced persons who have relocated to a majority area feel particularly threatened, as they fear being displaced again by the return of the pre-war inhabitants. See Cox, Strategic Approaches, supra note 17, at 24-30.
56. For a discussion of the different initiatives, see, for example, ICG Report, Mass Relocation?, supra note 29, at 13-30; UNCHR REGIONAL STRATEGY, supra note 33, § 7; Cox, The Right to Return, supra note 13, at 623-26.
57. Some would argue that this was to be expected. For example, one observer, writing before the peace agreement was concluded, noted: [w]hile it may be a lamentable comment on the human condition, the fact is that population flows that increase ethnic homogeneity [as did those during the Bosnian war] are much less likely to be reversed than those that create greater [ethnic] heterogeneity. In other words, repatriation is more likely with refugees who belong to the dominant ethnic group . . . of the state of origin than with those belonging to a minority. Alan Dowty, Return or Compensation: Legal and Political Context of Palestinian Refugee Issues, 1994 WORLD REFUGEE SURVEY 26, 29 (1994).
58. See RRTF March 1998 Action Plan, supra note 29, ¶ 7.
59. "An analysis of returns by entity and canton is revealing. For example, nearly 37,000 internally displaced persons returned to Una-Sana Canton in 1996, but only 250 in 1997, a more than 99 percent drop." U.S. COMMITTEE FOR REFUGEES, 1998 WORLD REFUGEE SURVEY 164 (1998). This same Canton, however, was "second only to Sarajevo as the destination for repatriating refugees in 1997 (and recorded virtually the same number of returns in both 1996 and 1997 - about 23,500 each year). This could suggest that significantly more repatriating refugees were relocating rather than returning to their original homes." Id. In Sarajevo Canton, "authorities had registered 2,556 Serbs as returning to [Bosniak dominated] Sarajevo . . . [however], [m]any of those registered as returnees had not actually returned . . . and persons returning to Sarajevo did not necessarily stay there." Id. Serbs and Croats "sometimes returned to test the waters or to re-establish property claims without intending to return permanently." Id. The CRPC has concluded that a "significant portion of the 19,000 persons who registered property claims in Sarajevo Canton were more interested in establishing ownership claims in order to sell or trade property than in returning." Id. at 164-65. See also Interview with Steven Segal, Executive Officer, CRPC (Oct. 20, 1998) (copy on file with author).
60. RRTF March 1998 Action Plan, supra note 29, at ¶ 6. Minority returns for the first half of 1998 have been slower than expected. Between 11,000 to 15,000 have returned, which is well below the UNHCR target figure of 50,000. See Report of the High Representative for Implementation of the Peace Agreement to the Secretary General of the United Nations (July 14, 1998) (visited Apr. 26, 1999) 〈http://www.ohr.int/reports/ r987014a.htm)〉. Generally, majority ethnic groups have tolerated minority return to rural areas lacking economic viability, or, for small numbers of returnees, to large urban areas, provided that they do not displace members of the majority group. See Letter from Arthur Helton, Director, Open Society Institute/Forced Migration Project, to Sadako Ogata, U.N. High Commissioner for Refugees 4 (Oct. 16, 1998) (copy on file with author) [hereinafter Helton Letter].
61. For a discussion of these obstacles to return and the international community's efforts to remove them, see, for example, UNHCR REGIONAL STRATEGY, supra note 33, at 2; OFFICE OF THE HIGH REPRESENTATAIVE, REPORT OF THE HIGH REPRESENTATIVE FOR IMPLEMENTATION OF THE BOSNIAN PEACE AGREEMENT TO THE SECRETARY-GENERAL OF THE UNITED NATIONS (1998); AMNESTY INTERNATIONAL, RIGHTING THE WRONGS, RECOMMENDATIONS REGARDING RETURN OF REFUGEES AND DISPLACED PERSONS FOR 1998 (1998).
62. Protecting the Rights of Refugees and the Internally Displaced Victims of Violence in the Former Yugoslavia in any Potential Peace Agreement on Human Rights Before the House Committee on International Relations, 104th Cong. at 32 (Nov. 15, 1995) (prepared statement by Robert P. DeVecchi, President, International Rescue Committee). See also Amnesty International, Bosnia-Herzegovina All the Way Home: Safe "Minority Returns" as a Just Remedy and for a Secure Future 35, Feb. 1998, AI Index: EUR 63/02/98.
63. Protecting the Rights of Refugees and the Internally Displaced Victims of Violence in the Former Yugoslavia in any Potential Peace Agreement on Human Rights Before the House Committee on International Relations, 104th Cong. at 32 (Nov. 15, 1995) (prepared statement by Robert P. DeVecchi, President, International Rescue Committee). See also Amnesty International, Bosnia-Herzegovina All the Way Home: Safe "Minority Returns" as a Just Remedy and for a Secure Future 35, Feb. 1998, AI Index: EUR 63/02/98.
64. U.S. COMMITTEE FOR REFUGEES, 1997 WORLD REFUGEE SURVEY 54 (1997).
65. Between 1986 and 1991, a large number of people moved from the countryside to the cities. This trend is mirrored in other Central and Eastern European countries. For example, in the Czech Republic rural employment has declined by 40% since 1989. See RRTF March 1998 Action Plan, supra note 29, ¶ 13.
66. In most of the larger towns and cities in post-war Bosnia, "there is a pattern of relocation from surrounding villages into the town center[s]." Cox Report, supra note 21, at 11. Many villagers sought refuge in the towns during the war, and their homes have been damaged or destroyed. See id. "There are increasing signs that many of them do not want to return to their villages, even when there is no security impediment." Id. 46. The RRTF has observed that people have not returned to areas where there are few economic prospects. "Many families have not returned to remote villages, (even after their houses have been repaired with international assistance)." RRTF March 1998 Action Plan, supra note 29, ¶ 16. Moreover, the "social and economic structures which sustained many rural communities under the socialist system have disappeared." Cox, Strategic Approaches, supra note 17, at 36. Bosnian Moslem leader Alija Izetbegovic noted: many of the refugees who poured into Sarajevo have [no] motive to leave . . . "they are peasants and farmers. Many of these people came from villages without shops [and] medical care. . . . They end up [in Sarajevo]. This is what they have dreamed of. Okay, so they didn't want to have a war, but now they are here. Why go back?" Marilyn Henry, Back to Bosnia, JERUSALEM POST, Sept. 11, 1998, at 19. In addition, many of the refugees who have returned to Bosnia from abroad have very different life expectations than they had when they fled. The International Commission on the Balkans, reporting in the immediate aftermath of the war, predicted this phenomena, noting that "refugees in . . . the West are unlikely to return in large numbers. They are likely to go back only on a modest scale, and only to where they will be in an ethnic majority and where economic conditions permit. . . . [This would be the case] even under the most optimistic scenarios for refugee return." UNFINISHED PEACE, supra note 28, at 100-01. Thus, the Commission concluded that "most refugees will remain in the West." Id. at 101.
67. There was nearly a consensus among the participants in a study commissioned by the World Bank that only the older people will return to live in the villages and most predicted that no more than 15% of the people would return from the cities to their prewar village homes. A young woman from Vitzez, supporting this sentiment, noted that "even before the war, younger people were leaving the villages en masse." WORLD BANK, SOCIAL ASSESSMENT OF THE IMPACT OF THE WAR IN BOSNIA AND HERZEGOVINA (1998) [hereinafter WORLD BANK, SOCIAL ASSESSMENT]. Younger people of all ethnic groups surveyed cited the poor living conditions, poor communications links with urban centers, distance to schools and hospitals, and the government's inability to subsidize the social infrastructure in the villages as reasons why they would not choose to return to their rural pre-war homes.
68. For example, "[a] number of pre-war large enterprises are likely to be restructured (e.g., Zenica steel plant), and new businesses are already emerging in many places (e.g., Tuzla)." RRTF March 1998 Action Plan, supra note 29, ¶ 13. Moreover, "[i]ndustries which once supported entire cities are now defunct." Cox, Strategic Approaches, supra note 17, at 36. In a recent report on Bosnia, the UNHCR has acknowledged the significance of the various pre-war and wartime demographic changes experienced in that region, noting that "[n]ot all populations displaced by conflict return to their homes following the end of hostilities. In addition to pre-conflict migration patters, new patterns result from the social and economic upheaval stemming from conflict, the region's transition to a market economy and other phenomena such as the move of rural populations to urban areas." UNHCR REGIONAL STRATEGY, supra note 33, ¶ 3.4.
69. For example, "[a] number of pre-war large enterprises are likely to be restructured (e.g., Zenica steel plant), and new businesses are already
70. According to the OHR, four hurdles must be overcome for the process of minority return to become significant and self-sustaining: (1) the international community must press for an immediate and firm commitment of the leadership at both the State and Entity level, which must then be translated into consistent and prompt administrative and legislative action at all levels; (2) the security of returning refugees must be assured and the concept of a multi-ethnic police force must become a reality; (3) the lack of adequate housing must be addressed; and (4) a new property market and legislative framework must be instituted to allow all citizens effectively to exercise their property rights. See HIGH REPRESENTATIVE TO THE STEERING BOARD, REPORT ON THE IMPLEMENTATION OF THE PEACE AGREEMENT FOR BOSNIA AND HERZEGOVINA 3 (1998) [hereinafter Implementation Report). Providing all refugees and displaced persons with a fair opportunity to sell, lease, or exchange their property, would be a positive step in the development of a real estate market. Moreover, it would enhance the ability of refugees and displaced persons to choose how to exercise their property rights.
71. The most significant program, in terms of resources, is the Open Cities Initiative, jointly sponsored by UNHCR and the U.S. Department of State's Bureau of Population Refugees and Migration. In March 1997, UNHCR announced the Open Cities Initiative, which represented a commitment to reward those local communities that demonstrated an openness to minority returns with increased international assistance. According to the International Crisis Group, as of April 1998, $60 million has been committed to Open Cities. International Crisis Group, The Konjic Conundrum: Why Minorities Have Failed to Return to Model Open City (visited Apr. 26, 1998) 〈http://www.intl-crisis-group.org〉. While 1790 minorities have returned to these cities since the signing of the DPA, only 582 of them returned after their recognition as Open Cities. ICG Report, Mass Relocation?, supra note 29, at 3.A.1. The Open Society Institute has calculated a cost of $80,750 per returnee under the Open Cities Initiative and accurately noted that such a program, even if expanded, could not be maintained. Helton Letter, supra note 40, at 2. Other efforts to encourage return include UNHCR's Pilot Projects in the Federation, the Sarajevo Housing Commission established by the Sarajevo Declaration of February 1998. Under these programs, specific individuals seeking to return to their homes are identified, and local authorities are pressured to accept their return.
72. RRTF March 1998 Action Plan, supra note 29, ¶ 14.
73. See id. According to the World Bank sponsored survey, when asked how many displaced persons will return from the city to the village, a common number given was 15%. All three ethnic groups surveyed were in agreement that it will only be the older people who will return to the villages to live, mainly because of emotional ties to their property. WORLD BANK, SOCIAL ASSESSMENT, supra note 47, at 47.
74. "Relocation" describes the situation when repatriating refugees and displaced persons end up in places that are not their homes of origin. See RECONSTRUCTION AND RETURN TASK FORCE, OHR: OUTLOOK FOR 1998 - "RESOURCES, REPATRIATION AND MINORITY RETURN" ¶ 34 (1997). Both UNHCR and the PIC Steering Board have recently voiced their support for relocation so long that it is truly voluntary, although return should remain as the preferred solution. Both agree, however, that resettlement should not be encouraged where it occurs as a result of official local manipulation and intimidation. Since relocation may be promoted for a political objective, i.e., by nationalist political leaders who want to solidify gains made during and in the aftermath of the war, UNHCR has stated that for relocation to be acceptable, it "must respect the property rights of others, be voluntary and based on an informed choice as to the desired place of residence, whether newly built or existing accommodation." UNHCR REGIONAL STRATEGY, supra note 33, ¶ 7.9. A survey conducted by the CRPC and UNHCR cites three factors that suggest that relocation is an important part of the search for durable solutions for those forced to flee their homes during the war. First, given "[t]he progress and pattern of return so far . . . it is unrealistic to expect a complete return of the population shifts that took place during the war and thus a full return of all refugees and displaced persons to their pre-war homes." Second, "there is an important minority [of displaced persons and refugees] who do not wish to return" to their pre-war homes. Third, as the result of economic factors, "many areas of [Bosnia] will no longer be able to sustain their pre-war populations." Cox Report, supra note 21, at 22. See also UNHCR REPATRIATION AND RETURN OPERATION 1998, infra note 56, at 5 (noting that population relocation will be an essential component of the search for durable solutions for refugees and displaced persons and it may be supported provided that it is voluntary and does not diminish prospects for return). Despite recognizing the reality of relocation, in November 1998, a UNHCR representative in Sarajevo stated that, except for a small-scale integration program for Bosnian-Serbs and Croats in Serbia, UNHCR would not provide support for relocation in 1999.
75. "Relocation" describes the situation when repatriating refugees and displaced persons end up in places that are not their homes of origin. See RECONSTRUCTION AND RETURN TASK FORCE, OHR: OUTLOOK FOR 1998 - "RESOURCES, REPATRIATION AND MINORITY RETURN" ¶ 34 (1997). Both UNHCR and the PIC Steering Board have recently voiced their support for relocation so long that it is truly voluntary, although return should remain as the preferred solution. Both agree, however, that resettlement should not be encouraged where it occurs as a result of official local manipulation and intimidation. Since relocation may be promoted for a political objective, i.e., by nationalist political leaders who want to solidify gains made during and in the aftermath of the war, UNHCR has stated that for relocation to be acceptable, it "must respect the property rights of others, be voluntary and based on an informed choice as to the desired place of residence, whether newly built or existing accommodation." UNHCR REGIONAL STRATEGY, supra note 33, ¶ 7.9. A survey conducted by the CRPC and UNHCR cites three factors that suggest that relocation is an important part of the search for durable solutions for those forced to flee their homes during the war. First, given "[t]he progress and pattern of return so far . . . it is unrealistic to expect a complete return of the population shifts that took place during the war and thus a full return of all refugees and displaced persons to their pre-war homes." Second, "there is an important minority [of displaced persons and refugees] who do not wish to return" to their pre-war homes. Third, as the result of economic factors, "many areas of [Bosnia] will no longer be able to sustain their pre-war populations." Cox Report, supra note 21, at 22. See also UNHCR REPATRIATION AND RETURN OPERATION 1998, infra note 56, at 5 (noting that population relocation will be an essential component of the search for durable solutions for refugees and displaced persons and it may be supported provided that it is voluntary and does not diminish prospects for return). Despite recognizing the reality of relocation, in November 1998, a UNHCR representative in Sarajevo stated that, except for a small-scale integration program for Bosnian-Serbs and Croats in Serbia, UNHCR would not provide support for relocation in 1999.
76. "Relocation" describes the situation when repatriating refugees and displaced persons end up in places that are not their homes of origin. See RECONSTRUCTION AND RETURN TASK FORCE, OHR: OUTLOOK FOR 1998 - "RESOURCES, REPATRIATION AND MINORITY RETURN" ¶ 34 (1997). Both UNHCR and the PIC Steering Board have recently voiced their support for relocation so long that it is truly voluntary, although return should remain as the preferred solution. Both agree, however, that resettlement should not be encouraged where it occurs as a result of official local manipulation and intimidation. Since relocation may be promoted for a political objective, i.e., by nationalist political leaders who want to solidify gains made during and in the aftermath of the war, UNHCR has stated that for relocation to be acceptable, it "must respect the property rights of others, be voluntary and based on an informed choice as to the desired place of residence, whether newly built or existing accommodation." UNHCR REGIONAL STRATEGY, supra note 33, ¶ 7.9. A survey conducted by the CRPC and UNHCR cites three factors that suggest that relocation is an important part of the search for durable solutions for those forced to flee their homes during the war. First, given "[t]he progress and pattern of return so far . . . it is unrealistic to expect a complete return of the population shifts that took place during the war and thus a full return of all refugees and displaced persons to their pre-war homes." Second, "there is an important minority [of displaced persons and refugees] who do not wish to return" to their pre-war homes. Third, as the result of economic factors, "many areas of [Bosnia] will no longer be able to sustain their pre-war populations." Cox Report, supra note 21, at 22. See also UNHCR REPATRIATION AND RETURN OPERATION 1998, infra note 56, at 5 (noting that population relocation will be an essential component of the search for durable solutions for refugees and displaced persons and it may be supported provided that it is voluntary and does not diminish prospects for return). Despite recognizing the reality of relocation, in November 1998, a UNHCR representative in Sarajevo stated that, except for a small-scale integration program for Bosnian-Serbs and Croats in Serbia, UNHCR would not provide support for relocation in 1999.
77. "Relocation" describes the situation when repatriating refugees and displaced persons end up in places that are not their homes of origin. See RECONSTRUCTION AND RETURN TASK FORCE, OHR: OUTLOOK FOR 1998 - "RESOURCES, REPATRIATION AND MINORITY RETURN" ¶ 34 (1997). Both UNHCR and the PIC Steering Board have recently voiced their support for relocation so long that it is truly voluntary, although return should remain as the preferred solution. Both agree, however, that resettlement should not be encouraged where it occurs as a result of official local manipulation and intimidation. Since relocation may be promoted for a political objective, i.e., by nationalist political leaders who want to solidify gains made during and in the aftermath of the war, UNHCR has stated that for relocation to be acceptable, it "must respect the property rights of others, be voluntary and based on an informed choice as to the desired place of residence, whether newly built or existing accommodation." UNHCR REGIONAL STRATEGY, supra note 33, ¶ 7.9. A survey conducted by the CRPC and UNHCR cites three factors that suggest that relocation is an important part of the search for durable solutions for those forced to flee their homes during the war. First, given "[t]he progress and pattern of return so far . . . it is unrealistic to expect a complete return of the population shifts that took place during the war and thus a full return of all refugees and displaced persons to their pre-war homes." Second, "there is an important minority [of displaced persons and refugees] who do not wish to return" to their pre-war homes. Third, as the result of economic factors, "many areas of [Bosnia] will no longer be able to sustain their pre-war populations." Cox Report, supra note 21, at 22. See also UNHCR REPATRIATION AND RETURN OPERATION 1998, infra note 56, at 5 (noting that population relocation will be an essential component of the search for durable solutions for refugees and displaced persons and it may be supported provided that it is voluntary and does not diminish prospects for return). Despite recognizing the reality of relocation, in November 1998, a UNHCR representative in Sarajevo stated that, except for a small-scale integration program for Bosnian-Serbs and Croats in Serbia, UNHCR would not provide support for relocation in 1999.
78. Helton Letter, supra note 40, at 2.
79. Cox, The Right to Return, supra note 13, at 600.
80. See RRTF March 1998 Action Plan, supra note 29, ¶ 6. UNHCR reports that "an estimated 70% of repatriation in the second half of 1997 can be characterized as relocation." UNHCR REPATRIATION AND RETURN OPERATION 3 (1998). Recent CRPC surveys have revealed that a significant number of people have determined that they cannot or will not return - they would rather relocate. See Cox Report, supra note 21, at 12-19.
81. See RRTF March 1998 Action Plan, supra note 29, ¶ 6. UNHCR reports that "an estimated 70% of repatriation in the second half of 1997 can be characterized as relocation." UNHCR REPATRIATION AND RETURN OPERATION 3 (1998). Recent CRPC surveys have revealed that a significant number of people have determined that they cannot or will not return - they would rather relocate. See Cox Report, supra note 21, at 12-19.
82. See RRTF March 1998 Action Plan, supra note 29, ¶ 6. UNHCR reports that "an estimated 70% of repatriation in the second half of 1997 can be characterized as relocation." UNHCR REPATRIATION AND RETURN OPERATION 3 (1998). Recent CRPC surveys have revealed that a significant number of people have determined that they cannot or will not return - they would rather relocate. See Cox Report, supra note 21, at 12-19.
83. The destruction of property and the massive population movements that occurred during the war led to severe housing problems. In order to accommodate the influx of internally displaced people into the urban areas, and to increase their power by controlling access to housing so as to distribute it for political gain to supporters, local authorities seized many of the dwellings left empty. In these homes they placed displaced persons from their own ethnic group who had been driven from or fled their pre-war homes. Almost everywhere throughout Bosnia, houses of people who left during the war (ethnic minorities in particular) are used to house displaced persons. According to the 1996 Census of Refugees and Displaced Persons In the RS, about half of the displaced persons in the RS were living in abandoned housing either illegally or with temporary occupancy rights granted by the local authorities. Refugees and displaced persons, therefore, cannot return to their homes without evicting others. Eviction, however, is almost impossible in the absence of an alternative solution for the occupants. Thus, none of the more than 15,000 people holding CRPC certificates, which certify their ownership or occupancy rights to their pre-war homes have actually been able to return and have the temporary occupant, generally of the majority ethnicity, removed. See RECONSTRUCTION AND RETURN TASK FORCE, ASSISTING REINTEGRATION, AN ACTION PLAN IN SUPPORT OF REFUGEES AND DISPLACED PERSONS IN BOSNIA AND HERZEGOVINA 32-33 (1998) (copy on file with author).
84. See, e.g., UNCHR REGIONAL STRATEGY, supra note 33; ICG Report, Mass Relocation?, supra note 29; RRTF March 1998 Action Plan, supra note 29.
85. The London Conference, convened a few months after war spread to Bosnia, was, at that time, the most ambitious international summit on Bosnia. The Conference established the requirements for acknowledging the right of all refugees and displaced persons to return or to receive compensation for their property should they choose not to do so. See Szasz, infra note 83, at 312. For the complete set of documents adopted at the Conference, see 31 I.L.M. 1531 (1992). This Conference, co-sponsored by the British and the U.N., was attended by more than 30 countries and organizations. It also established the International Conference on the Former Yugoslavia (ICFY) (initially known as the "Vance-Owen Negotiations" after the then Co-Chairmen of the ICFY Steering Committee: Cyrus Vance and David Owen), with a working group on Bosnia and Herzegovina.
86. The Invincible Plan, was negotiated during the summer of 1993, culminating on September 20, with a final negotiating session on the British carrier HMS Invincible. It laid out a fully articulated Constitutional Agreement of the Union of Bosnia and Herzegovina and a set of Agreed Arrangements, both of which contained extensive procedural and substantive human rights provisions. The parties quickly rejected the plan, however, largely because of territorial disputes. The final Invincible Plan appears in B.G. RAMCHARAN, THE INTERNATIONAL CONFERENCE ON THE FORMER YUGOSLAVIA: OFFICIAL PAPERS 275-329 (1997).
87. See, e.g., Situation of Human Rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia, and the Federal Republic of Yugoslavia (Serbia and Montenegro), G.A. Res. 49/196, U.N. GAOR, 49th Sess., at 5, U.N. Doc. A/RES/49/196 (1995) (reaffirming right of all persons to return to their homes and the "right of victims of ethnic cleansing to receive just reparation for their losses").
88. Agreed Principles, Geneva, Sept. 8, 1995, at 301. The same principles were reaffirmed in the Further Agreed Basic Principles, adopted in New York, Sept. 26, 1995 (on file with author).
89. CHRISTOPHER, supra note 1, at 366. Christopher titled this speech "Building Peace with Justice."
90. DPA, supra note 8, Annex Seven, art. I. The significance of the CRPC's overall goal, the restoration of property rights, to the future political stability of Bosnia, although beyond the scope of this article, has been discussed elsewhere. See Cox, The Right to Return, supra note 13, at 605.
91. Hans van Houtte, The Property Claims Commission in Bosnia-Herzegovina - A New Path to Restore Real Estate Rights in Post-War Societies?, in INTERNATIONAL LAW: THEORY AND PRACTICE 549, 550 (K. Wellens ed. 1998). Professor van Houtte has served as one of the nine Commissioners of the Commission for Real Property Claims since its inception in March 1996.
92. The change in name was to avoid confusion with UNHCR's mandate under the DPA and to state more clearly the CRPC's mandate, i.e., to receive and decide property claims.
93. Under Annex Seven, Art. XII(2), "[a]ny person requesting compensation in lieu of return who is found by the Commission to be the lawful owner of that property shall be awarded just compensation as determined by the Commission." DPA, supra note 8, Annex Seven, art. XII(2). Compensation is to be payable for the value of the property prior to April 1, 1992, or before the war, thus not taking into consideration any war damage. When completing a claim form, the refugee or displaced person is asked to indicate which way he intends to exercise his property rights by choosing one of three options: (1) "wishes to return into possession of claimed real property," (2) undecided, or (3) wishes to receive some form of compensation for his property. Van Houtte, supra note 65, at 558-59.
94. Compensation would be drawn against a Refugees and Displaced Persons Property Fund. See DPA, supra note 8, Annex Seven, art. XIV.
95. See DPA, supra note 8, Annex Seven, art. XII(5); art. XIV(1). According to Annex Seven, the CRPC would gain title to any property for which it compensated a refugee or displaced person. One possibility that has attracted some attention is the idea of structuring the Property Fund called for by Annex Seven as a mutual property fund and opening it to outside investors. Claimants who chose not to hold on to their property, to which they cannot or choose not to return - and who were unable to sell or exchange the property - could sign over their properties to the Fund in return for shares. Although such mechanism is not likely to appeal to those who are in a desperate condition and need either money or housing immediately, those refugees who have resettled abroad, might be interested.
96. See infra notes 87-90 and accompanying text for an argument as to why the Parties to Annex Seven should be responsible for providing the necessary funds. There is some concern that Bosnian-Serb real estate agents in the RS have bought properties at rock-bottom prices from Bosniak widows of Srebrenica (RS), who are desperate both to relocate in the Federation and receive some money to assist with this relocation. Some members of international organizations in Sarajevo have described these as "fire sales." In September 1998, the Open Society Institute's Forced Migration Project, aware of this phenomenon, urged the CRPC to "develop mechanisms to assess the value of real property," "establish regulations for the compensation, lease, or exchange of property in ways respectful of human rights," and "encourage political authorities to enact legislation which will regulate real estate transactions." FORCED MIGRATION MONITOR Sept. 1998, at 5.
97. Amnesty International has criticized Annex Seven for failing to "expressly guarantee that refugees and displaced persons will be able to return and be compensated for their houses where they were deliberately destroyed as punishment." Amnesty International, supra note 16, at II.A.5. Thus, they are left "with an unpalatable choice between returning to their ruined houses without any compensation for the damage or not returning, but obtaining compensation." Id.
98. See Interview with Lisa Jones, UNHCR Sarajevo Protection Officer (July 28, 1998) (on file with author).
99. See Van Houtte, supra note 65, at 559.
100. See DPA, supra note 8, Annex Seven, art. XII(5).
101. See Cox, The Right to Return, supra note 13, at 612.
102. The three ethnic groups have differing interpretations of the DPA: Serb authorities have generally resisted measures that would lead to the return home of non-Serb refugees or displaced persons. Instead, they strongly support compensation schemes for individuals as well as exchanges of property. Bosniaks generally take the opposite position, insisting on an unqualified right of return and opposing compensation, exchange of property and perhaps even housing construction that could facilitate "relocation." On these issues, the Croats' views are more like the Serbs' than the Bosniaks.
103. See Bosnian Serb Leader Says Predecessor Karadzic Will Withdraw "From the Media," BBC Summary of World Broadcasts, Aug. 11, 1997, available on LEXIS, News Library, Curnws File. He sees compensation or exchange as a more practical alternative. Refugees and displaced persons, he argues, should have a choice, "[i]f the emphasis is only placed on the return of refugees, confusion will ensue and we shall not be able to solve refugees' problems." Id. In June 1998, Milorad Dodik, the nearly moderate Prime Minister of the RS, advocated offering refugees and displaced persons the option of receiving compensation for their property in lieu of return. See Milorad Dodik, Property Commission Head Discuss Property Returns, June 4, 1998 Report on Banja Luka Srpski Radio (copy on file with author).
104. Cox Report, supra note 21, at 29. See also ICG Report, Mass Relocation?, supra note 29 (discussing how Bosnian-Croat and Serb nationalist parties are using relocation for political purposes).
105. Given the obstacles to return that currently exist, some argue that relatively few refugees and displaced persons are currently in a position to make a free and informed choice regarding whether they wish to return. See, e,g., UNHCR REGIONAL STRATEGY, supra note 33, at 3; ICG Report, Mass Relocation?, supra note 29. Only when the obstacles are removed so as to make the choice between return and relocation a free one, they argue, should the international community begin to support the right to compensation. See ICG Report, Mass Relocation?, supra note 29. This argument, however, does not consider the thousands of displaced persons and refugees who do not want to return, regardless of whether the obstruction is removed or not. Moreover, it holds all of those interested in permanent relocation and compensation hostage to the international community's impracticable goal of large-scale minority return. See Cox, The Right to Return, supra note 13, at 627-29.
106. Given the obstacles to return that currently exist, some argue that relatively few refugees and displaced persons are currently in a position to make a free and informed choice regarding whether they wish to return. See, e,g., UNHCR REGIONAL STRATEGY, supra note 33, at 3; ICG Report, Mass Relocation?, supra note 29. Only when the obstacles are removed so as to make the choice between return and relocation a free one, they argue, should the international community begin to support the right to compensation. See ICG Report, Mass Relocation?, supra note 29. This argument, however, does not consider the thousands of displaced persons and refugees who do not want to return, regardless of whether the obstruction is removed or not. Moreover, it holds all of those interested in permanent relocation and compensation hostage to the international community's impracticable goal of large-scale minority return. See Cox, The Right to Return, supra note 13, at 627-29.
107. Prior to the war, 80% of the residential property was privately owned, mainly in the countryside. See RRTF March 1998 Action Plan, supra note 29, at ¶ 44, Box 10. The remaining 20% was "socially-owned", mainly in the cities, where public housing accounted for about 1/2 of the housing stock. See id. Under practices of the SFRY, construction of "socially-owned" apartments came from contributions of each working person to the Housing Contribution Fund. ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE, supra note 22. These obligatory contributions could have amounted to as much as 10% of total income. See id. Although every worker contributed to the fund, not every family received occupancy rights to a socially-owned apartment. See id. Those holding such rights in these socially-owned apartments were more than simply tenants, but did not own their homes and were not allowed to buy them. See id. See also Jessica Simor, Tackling Human Rights Abuses in Bosnia and Herzegovina: The Convention Is up to it, Are its Institutions? 1997 EUR. HUM. RTS. L. REV. 644, 653-54 (1997) (describing the institution of socially-owned housing). An occupancy right has been referred to as "quasi-ownership." OPEN SOCIETY INSTITUTE FORCED MIGRATION PROJECT, PROPERTY LAW IN BOSNIA AND HERZEGOVINA 13 (1996).
108. Prior to the war, 80% of the residential property was privately owned, mainly in the countryside. See RRTF March 1998 Action Plan, supra note 29, at ¶ 44, Box 10. The remaining 20% was "socially-owned", mainly in the cities, where public housing accounted for about 1/2 of the housing stock. See id. Under practices of the SFRY, construction of "socially-owned" apartments came from contributions of each working person to the Housing Contribution Fund. ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE, supra note 22. These obligatory contributions could have amounted to as much as 10% of total income. See id. Although every worker contributed to the fund, not every family received occupancy rights to a socially-owned apartment. See id. Those holding such rights in these socially-owned apartments were more than simply tenants, but did not own their homes and were not allowed to buy them. See id. See also Jessica Simor, Tackling Human Rights Abuses in Bosnia and Herzegovina: The Convention Is up to it, Are its Institutions? 1997 EUR. HUM. RTS. L. REV. 644, 653-54 (1997) (describing the institution of socially-owned housing). An occupancy right has been referred to as "quasi-ownership." OPEN SOCIETY INSTITUTE FORCED MIGRATION PROJECT, PROPERTY LAW IN BOSNIA AND HERZEGOVINA 13 (1996).
109. Prior to the war, 80% of the residential property was privately owned, mainly in the countryside. See RRTF March 1998 Action Plan, supra note 29, at ¶ 44, Box 10. The remaining 20% was "socially-owned", mainly in the cities, where public housing accounted for about 1/2 of the housing stock. See id. Under practices of the SFRY, construction of "socially-owned" apartments came from contributions of each working person to the Housing Contribution Fund. ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE, supra note 22. These obligatory contributions could have amounted to as much as 10% of total income. See id. Although every worker contributed to the fund, not every family received occupancy rights to a socially-owned apartment. See id. Those holding such rights in these socially-owned apartments were more than simply tenants, but did not own their homes and were not allowed to buy them. See id. See also Jessica Simor, Tackling Human Rights Abuses in Bosnia and Herzegovina: The Convention Is up to it, Are its Institutions? 1997 EUR. HUM. RTS. L. REV. 644, 653-54 (1997) (describing the institution of socially-owned housing). An occupancy right has been referred to as "quasi-ownership." OPEN SOCIETY INSTITUTE FORCED MIGRATION PROJECT, PROPERTY LAW IN BOSNIA AND HERZEGOVINA 13 (1996).
110. Cox, Strategic Approaches, supra note 17, at 39. Facilitating the exercise of the right to receive compensation for one's property would do more than simply provide some assistance to the thousands of needy refugees and displaced persons who genuinely do not wish to return. Enabling the dislocated to exercise this Annex Seven right, which likely would involve the sale, lease, or exchange of property, would provide refugees with a fair opportunity to exercise their property rights and would assist the development of a mature property market in Bosnia. See supra note 50.
111. Cox, Strategic Approaches, supra note 17, at 39. Facilitating the exercise of the right to receive compensation for one's property would do more than simply provide some assistance to the thousands of needy refugees and displaced persons who genuinely do not wish to return. Enabling the dislocated to exercise this Annex Seven right, which likely would involve the sale, lease, or exchange of property, would provide refugees with a fair opportunity to exercise their property rights and would assist the development of a mature property market in Bosnia. See supra note 50.
112. See Cox, Strategic Approaches, supra note 17, at 41 (arguing that return to home of origin should continue to be the preferred solution, but is not likely to solve the displacement crisis).
113. Under the DPA, Annex Four, article 11(1), the citizens of Bosnia and Herzegovina are guaranteed "the highest level of internationally recognized human rights and fundamental freedoms." DPA, supra note 8, Annex Four, art. II(1). Bosnia is bound by 21 international human rights instruments as stipulated in both Annex Four (the Constitution) and Annex Six (Human Rights). See id. Annex Four also individually confers thirteen fundamental rights, including the right to property and the right to liberty of movement and residence. See id. The DPA also established three national institutions to deal with human rights issues. These are the Human Rights Chamber and the Human Rights Ombudsman, established under Annex Six, and form together the Commission on Human Rights and the CRPC. See id. The Annex Six bodies can consider alleged or apparent violations of human rights by the authorities that occurred after December 14, 1995, i.e., the date the DPA entered into force. See id. For a thorough discussion of the human rights protections contained in the DPA, see, for example, James Sloan, The Dayton Peace Agreement: Human Rights Guarantees and Their Implementation, 7 EUR. J. INT'L L. 207 (1996); Paul C. Szasz, Current Developments: The Protection of Human Rights Through the Dayton/Paris Peace Agreement on Bosnia, 90 AM. J. INT'L L. 301 (1996). See also Report on The Situation of Human Rights in the Territory of the Former Yugoslavia ¶¶ 21-41, U.N. Doc. E/CN.4/1998/13 (1997).
114. Under the DPA, Annex Four, article 11(1), the citizens of Bosnia and Herzegovina are guaranteed "the highest level of internationally recognized human rights and fundamental freedoms." DPA, supra note 8, Annex Four, art. II(1). Bosnia is bound by 21 international human rights instruments as stipulated in both Annex Four (the Constitution) and Annex Six (Human Rights). See id. Annex Four also individually confers thirteen fundamental rights, including the right to property and the right to liberty of movement and residence. See id. The DPA also established three national institutions to deal with human rights issues. These are the Human Rights Chamber and the Human Rights Ombudsman, established under Annex Six, and form together the Commission on Human Rights and the CRPC. See id. The Annex Six bodies can consider alleged or apparent violations of human rights by the authorities that occurred after December 14, 1995, i.e., the date the DPA entered into force. See id. For a thorough discussion of the human rights protections contained in the DPA, see, for example, James Sloan, The Dayton Peace Agreement: Human Rights Guarantees and Their Implementation, 7 EUR. J. INT'L L. 207 (1996); Paul C. Szasz, Current Developments: The Protection of Human Rights Through the Dayton/Paris Peace Agreement on Bosnia, 90 AM. J. INT'L L. 301 (1996). See also Report on The Situation of Human Rights in the Territory of the Former Yugoslavia ¶¶ 21-41, U.N. Doc. E/CN.4/1998/13 (1997).
115. Under the DPA, Annex Four, article 11(1), the citizens of Bosnia and Herzegovina are guaranteed "the highest level of internationally recognized human rights and fundamental freedoms." DPA, supra note 8, Annex Four, art. II(1). Bosnia is bound by 21 international human rights instruments as stipulated in both Annex Four (the Constitution) and Annex Six (Human Rights). See id. Annex Four also individually confers thirteen fundamental rights, including the right to property and the right to liberty of movement and residence. See id. The DPA also established three national institutions to deal with human rights issues. These are the Human Rights Chamber and the Human Rights Ombudsman, established under Annex Six, and form together the Commission on Human Rights and the CRPC. See id. The Annex Six bodies can consider alleged or apparent violations of human rights by the authorities that occurred after December 14, 1995, i.e., the date the DPA entered into force. See id. For a thorough discussion of the human rights protections contained in the DPA, see, for example, James Sloan, The Dayton Peace Agreement: Human Rights Guarantees and Their Implementation, 7 EUR. J. INT'L L. 207 (1996); Paul C. Szasz, Current Developments: The Protection of Human Rights Through the Dayton/Paris Peace Agreement on Bosnia, 90 AM. J. INT'L L. 301 (1996). See also Report on The Situation of Human Rights in the Territory of the Former Yugoslavia ¶¶ 21-41, U.N. Doc. E/CN.4/1998/13 (1997).
116. See COX, Strategic Approaches, supra note 17, at 38, 39-40, 42.
117. One commentator has written that [stressing the refugees' right to compensation may well induce the country of origin to create conditions to voluntary repatriation. In doing so, the country would . . . remove or ameliorate the very conditions that gave rise to refugees in the first place, foremost among which are violations of human rights and international law by the countries of origin themselves. Luke T. Lee, The Right to Compensation: Refugees and Countries of Asylum, 80 AMER. J. INT'L L. 532, 566 (1986).
118. The international community, in its efforts to ensure that compensation mechanisms do not impede returns, could require municipalities to meet certain benchmarks before being able to gain access to any compensation mechanism, e.g., the Annex Seven Property Fund. See DPA, supra note 8, Annex Seven. At the June 9, 1998 meeting of the Peace Implementation Council (PIC), the body responsible for overseeing implementation of the DPA, the Steering Board, in conjunction with its continued support for minority returns, announced its support for locally funded proposals to provide refugees and displaced persons with the fair opportunity to receive compensation for their property in lieu of return. Declaration of the Ministerial Meeting of the Steering Board of the Peace Implementation Council, Luxembourg, June 9, 1998, at ¶ 28. This represented the international community's first explicit post-Dayton support for the concept of providing refugees and displaced persons compensation through sale, lease or exchange of property. See id. Although the Bosnian Government may not have the financial resources necessary to support a compensation scheme, the funding could be provided by a loan from the World Bank. The CRPC has had some preliminary discussions with the World Bank regarding such a loan. See Interview with Steven Segal, Executive Officer, CRPC, (July 28, 1998) (copy on file with author).
119. Article XVI of Annex Seven includes a provision that will place the burden of financing the CRPC on the Government of Bosnia in December 2000. See DPA, supra note 8, Annex Seven (providing that "[f]ive years after this Agremeent [i.e., the DPA] takes effect, responsibility for the financing and operation of the Commission shall transfer from the Parties to the Government of Bosnia and Herzegovina, unless the Parties otherwise agree"). The DPA, however, is silent concerning the burden of financing a compensation mechanism after this date. See id.
120. The international law of State responsibility deals with principles and rules governing the conditions for and consequences of liability to a State, or other international actor, for a wrongful act, i.e., an act in violation of an obligation imposed by international law. See A.A. Fatouros, Transnational Enterprise in the Law of State Responsibility, in INTERNATIONAL LAW OF STATE RESPONSIBILITY: INJURIES TO ALIENS 361, 392 (Richard Lillich ed., 1983) [hereinafter INJURIES TO ALIENS]. See generally MALCOLM SHAW, INTERNATIONAL LAW 481-529 (3d ed. 1995); UNITED NATIONS CODIFICATION OF STATE RESPONSIBILITY (Marina Spinedi & Bruno Simma eds., 1987); IAN BROWNLIE, SYSTEM OF THE LAW OF NATIONS: STATE RESPONSIBILITY, PT. I (1983).
121. The international law of State responsibility deals with principles and rules governing the conditions for and consequences of liability to a State, or other international actor, for a wrongful act, i.e., an act in violation of an obligation imposed by international law. See A.A. Fatouros, Transnational Enterprise in the Law of State Responsibility, in INTERNATIONAL LAW OF STATE RESPONSIBILITY: INJURIES TO ALIENS 361, 392 (Richard Lillich ed., 1983) [hereinafter INJURIES TO ALIENS]. See generally MALCOLM SHAW, INTERNATIONAL LAW 481-529 (3d ed. 1995); UNITED NATIONS CODIFICATION OF STATE RESPONSIBILITY (Marina Spinedi & Bruno Simma eds., 1987); IAN BROWNLIE, SYSTEM OF THE LAW OF NATIONS: STATE RESPONSIBILITY, PT. I (1983).
122. The international law of State responsibility deals with principles and rules governing the conditions for and consequences of liability to a State, or other international actor, for a wrongful act, i.e., an act in violation of an obligation imposed by international law. See A.A. Fatouros, Transnational Enterprise in the Law of State Responsibility, in INTERNATIONAL LAW OF STATE RESPONSIBILITY: INJURIES TO ALIENS 361, 392 (Richard Lillich ed., 1983) [hereinafter INJURIES TO ALIENS]. See generally MALCOLM SHAW, INTERNATIONAL LAW 481-529 (3d ed. 1995); UNITED NATIONS CODIFICATION OF STATE RESPONSIBILITY (Marina Spinedi & Bruno Simma eds., 1987); IAN BROWNLIE, SYSTEM OF THE LAW OF NATIONS: STATE RESPONSIBILITY, PT. I (1983).
123. The international law of State responsibility deals with principles and rules governing the conditions for and consequences of liability to a State, or other international actor, for a wrongful act, i.e., an act in violation of an obligation imposed by international law. See A.A. Fatouros, Transnational Enterprise in the Law of State Responsibility, in INTERNATIONAL LAW OF STATE RESPONSIBILITY: INJURIES TO ALIENS 361, 392 (Richard Lillich ed., 1983) [hereinafter INJURIES TO ALIENS]. See generally MALCOLM SHAW, INTERNATIONAL LAW 481-529 (3d ed. 1995); UNITED NATIONS CODIFICATION OF STATE RESPONSIBILITY (Marina Spinedi & Bruno Simma eds., 1987); IAN BROWNLIE, SYSTEM OF THE LAW OF NATIONS: STATE RESPONSIBILITY, PT. I (1983).
124. See Draft Articles on State Responsibility, Pt. I, art. 1, adopted on first reading by the International Law Commission, [1980] 2 Y.B. Int'l L. Comm'n, pt. 2 at 30-35, U.N. Doc. A/CN.4/SER.A/1980/Add.1 [hereinafter Draft Articles]. For commentary on this article, see Robert Ago, Second Report on State Responsibility [1970] 2 id. at 179-97, U.N. Doc. A/CN.4/SER.A/1970/Add.1.
125. See Draft Articles on State Responsibility, Pt. I, art. 1, adopted on first reading by the International Law Commission, [1980] 2 Y.B. Int'l L. Comm'n, pt. 2 at 30-35, U.N. Doc. A/CN.4/SER.A/1980/Add.1 [hereinafter Draft Articles]. For commentary on this article, see Robert Ago, Second Report on State Responsibility [1970] 2 id. at 179-97, U.N. Doc. A/CN.4/SER.A/1970/Add.1.
126. The Permanent Court of International Justice, in the Chorzow Factory case, said that "[i]t is a principle of international law, that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured state have suffered as a result of the act which is contrary to international law." Chorzow Factory (Ger. v. Pol.), 1928 P.C.I.J. (Ser. A) No. 17, 1928, reprinted in ANN. DZG. PUB. INT'L L. CASES 258, 260 (1929). See also Draft Articles, supra note 89, art. 43; Covey T. Oliver, Legal Remedies and Sanctions, in INJURIES TO ALIENS, supra note 88, at 71; The Corfu Channel case, ICJ Reports 4, 23, reprinted in 16 INT'L L. REP. 155 (1949). In addition to compensation, other forms of reparation include restitution in kind, satisfaction, and assurances and guarantees of non-repetition. See Draft Articles, supra note 89, art. 42. See also SHAW, supra note 88, at 496-99; BROWNLIE, supra note 88, at 199-227.
127. The Permanent Court of International Justice, in the Chorzow Factory case, said that "[i]t is a principle of international law, that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured state have suffered as a result of the act which is contrary to international law." Chorzow Factory (Ger. v. Pol.), 1928 P.C.I.J. (Ser. A) No. 17, 1928, reprinted in ANN. DZG. PUB. INT'L L. CASES 258, 260 (1929). See also Draft Articles, supra note 89, art. 43; Covey T. Oliver, Legal Remedies and Sanctions, in INJURIES TO ALIENS, supra note 88, at 71; The Corfu Channel case, ICJ Reports 4, 23, reprinted in 16 INT'L L. REP. 155 (1949). In addition to compensation, other forms of reparation include restitution in kind, satisfaction, and assurances and guarantees of non-repetition. See Draft Articles, supra note 89, art. 42. See also SHAW, supra note 88, at 496-99; BROWNLIE, supra note 88, at 199-227.
128. The Permanent Court of International Justice, in the Chorzow Factory case, said that "[i]t is a principle of international law, that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured state have suffered as a result of the act which is contrary to international law." Chorzow Factory (Ger. v. Pol.), 1928 P.C.I.J. (Ser. A) No. 17, 1928, reprinted in ANN. DZG. PUB. INT'L L. CASES 258, 260 (1929). See also Draft Articles, supra note 89, art. 43; Covey T. Oliver, Legal Remedies and Sanctions, in INJURIES TO ALIENS, supra note 88, at 71; The Corfu Channel case, ICJ Reports 4, 23, reprinted in 16 INT'L L. REP. 155 (1949). In addition to compensation, other forms of reparation include restitution in kind, satisfaction, and assurances and guarantees of non-repetition. See Draft Articles, supra note 89, art. 42. See also SHAW, supra note 88, at 496-99; BROWNLIE, supra note 88, at 199-227.
129. The Permanent Court of International Justice, in the Chorzow Factory case, said that "[i]t is a principle of international law, that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured state have suffered as a result of the act which is contrary to international law." Chorzow Factory (Ger. v. Pol.), 1928 P.C.I.J. (Ser. A) No. 17, 1928, reprinted in ANN. DZG. PUB. INT'L L. CASES 258, 260 (1929). See also Draft Articles, supra note 89, art. 43; Covey T. Oliver, Legal Remedies and Sanctions, in INJURIES TO ALIENS, supra note 88, at 71; The Corfu Channel case, ICJ Reports 4, 23, reprinted in 16 INT'L L. REP. 155 (1949). In addition to compensation, other forms of reparation include restitution in kind, satisfaction, and assurances and guarantees of non-repetition. See Draft Articles, supra note 89, art. 42. See also SHAW, supra note 88, at 496-99; BROWNLIE, supra note 88, at 199-227.
130. The Permanent Court of International Justice, in the Chorzow Factory case, said that "[i]t is a principle of international law, that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured state have suffered as a result of the act which is contrary to international law." Chorzow Factory (Ger. v. Pol.), 1928 P.C.I.J. (Ser. A) No. 17, 1928, reprinted in ANN. DZG. PUB. INT'L L. CASES 258, 260 (1929). See also Draft Articles, supra note 89, art. 43; Covey T. Oliver, Legal Remedies and Sanctions, in INJURIES TO ALIENS, supra note 88, at 71; The Corfu Channel case, ICJ Reports 4, 23, reprinted in 16 INT'L L. REP. 155 (1949). In addition to compensation, other forms of reparation include restitution in kind, satisfaction, and assurances and guarantees of non-repetition. See Draft Articles, supra note 89, art. 42. See also SHAW, supra note 88, at 496-99; BROWNLIE, supra note 88, at 199-227.
131. See, e.g., STATE RESPONSIBILITY AND THE INDIVIDUAL (Albrecht Randelzhofer & Christian Tomuschat eds., 1999) (discussing the trend) [hereinafter STATE RESPONSIBILITY].
132. See Draft Articles, supra note 89, art. 3.
133. See Study Concerning the Right to Restitution, Compensation, and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms ¶ 41, U.N. Doc. E/CN.4/Sub.2/1993/8 (July 3, 1993) [hereinafter van Boven Report].
134. See id. at ¶ 41. See also RESTATEMENT (THIRD) OF THE LAW: FOREIGN RELATIONS OF THE UNITED STATES § 702 [hereinafter RESTATEMENT] (providing that a "State violates customary international law of human rights if, as a matter of State policy, it practices, encourages, or condones (a) genocide (b) slavery or slave trade (c) murder or causes disappearance of individuals (d) torture or other cruel, inhuman or degrading treatment or punishment (e) prolonged arbitrary detention (f) systematic racial discrimination, or (g) a consistent pattern of gross violations of internationally recognized human rights").
135. See Principle 2 of Revised Set. of Basic Principles and Guidelines on the Right of Reparation for Victims of Gross Violations of Human Rights and International Humanitarian Law, U.N. Doc. E/CN.4/Sub.2/1996/17 [hereinafter Basic Principles]; RESTATEMENT, supra note 94, § 702. See also Hannah Garry, The Right to Compensation and Refugee Flows: A "Preventive Mechanism" in International Law, 10 INT'L J. REFUGEE L. 97, 107 (1998); Chaloka Beyani, State Responsibility for the Prevention and Resolution of Forced Populations Displacements in International Law, 1995 Special Issue, INT'L J. REFUGEE L. 130, 138 (1995); van Boven Report, supra note 93, ¶ 41.
136. See Principle 2 of Revised Set. of Basic Principles and Guidelines on the Right of Reparation for Victims of Gross Violations of Human Rights and International Humanitarian Law, U.N. Doc. E/CN.4/Sub.2/1996/17 [hereinafter Basic Principles]; RESTATEMENT, supra note 94, § 702. See also Hannah Garry, The Right to Compensation and Refugee Flows: A "Preventive Mechanism" in International Law, 10 INT'L J. REFUGEE L. 97, 107 (1998); Chaloka Beyani, State Responsibility for the Prevention and Resolution of Forced Populations Displacements in International Law, 1995 Special Issue, INT'L J. REFUGEE L. 130, 138 (1995); van Boven Report, supra note 93, ¶ 41.
137. See Principle 2 of Revised Set. of Basic Principles and Guidelines on the Right of Reparation for Victims of Gross Violations of Human Rights and International Humanitarian Law, U.N. Doc. E/CN.4/Sub.2/1996/17 [hereinafter Basic Principles]; RESTATEMENT, supra note 94, § 702. See also Hannah Garry, The Right to Compensation and Refugee Flows: A "Preventive Mechanism" in International Law, 10 INT'L J. REFUGEE L. 97, 107 (1998); Chaloka Beyani, State Responsibility for the Prevention and Resolution of Forced Populations Displacements in International Law, 1995 Special Issue, INT'L J. REFUGEE L. 130, 138 (1995); van Boven Report, supra note 93, ¶ 41.
138. See, e.g., Louis Henkin, Refugees and Their Human Rights, 18 FORDHAM INT'L L.J. 1079 (1995).
139. Principle 2 of the 1992 Declaration of Principles of International Law on Compensation to Refugees, adopted by the International Law Association (Cairo, 1992), reprinted in 87 AM. J. INT'L L. 157, 158 (1993) [hereinafter Cairo Declaration].
140. Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. See also The Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., U.N. Doc. A/810, at 71 (1948) [hereinafter UDHR]. The UDHR, a UN General Assembly resolution adopted in 1948 without dissent, was originally not thought to entail international legal obligations. See Josef L. Kunz, The United Nations Declaration of Human Rights, 43 AM. J. INT'L L. 316, 322 (1949). See also Richard B. Lillich, The Current Status of the Law of State Responsibility for Injuries to Aliens, in INJURIES TO ALIENS, supra note 88, at 28. Today, however, the UDHR represents customary international law binding upon all States. See, e.g., de Zayas, The Right to One's Homeland, supra note 15, at 271; F. NEWMAN & D. WEISSBRODT, INTERNATIONAL HUMAN RIGHTS (1990) (citing Trajano v. Marcos, 878 F.2d 1439 (9th Cir. 1989)); Louis B. Sohn, The New International Law: Protection of Rights of Individuals Rather than States, 32 AM. U. L. REV. 1, 16-17 (1982).
141. Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. See also The Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., U.N. Doc. A/810, at 71 (1948) [hereinafter UDHR]. The UDHR, a UN General Assembly resolution adopted in 1948 without dissent, was originally not thought to entail international legal obligations. See Josef L. Kunz, The United Nations Declaration of Human Rights, 43 AM. J. INT'L L. 316, 322 (1949). See also Richard B. Lillich, The Current Status of the Law of State Responsibility for Injuries to Aliens, in INJURIES TO ALIENS, supra note 88, at 28. Today, however, the UDHR represents customary international law binding upon all States. See, e.g., de Zayas, The Right to One's Homeland, supra note 15, at 271; F. NEWMAN & D. WEISSBRODT, INTERNATIONAL HUMAN RIGHTS (1990) (citing Trajano v. Marcos, 878 F.2d 1439 (9th Cir. 1989)); Louis B. Sohn, The New International Law: Protection of Rights of Individuals Rather than States, 32 AM. U. L. REV. 1, 16-17 (1982).
142. Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. See also The Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., U.N. Doc. A/810, at 71 (1948) [hereinafter UDHR]. The UDHR, a UN General Assembly resolution adopted in 1948 without dissent, was originally not thought to entail international legal obligations. See Josef L. Kunz, The United Nations Declaration of Human Rights, 43 AM. J. INT'L L. 316, 322 (1949). See also Richard B. Lillich, The Current Status of the Law of State Responsibility for Injuries to Aliens, in INJURIES TO ALIENS, supra note 88, at 28. Today, however, the UDHR represents customary international law binding upon all States. See, e.g., de Zayas, The Right to One's Homeland, supra note 15, at 271; F. NEWMAN & D. WEISSBRODT, INTERNATIONAL HUMAN RIGHTS (1990) (citing Trajano v. Marcos, 878 F.2d 1439 (9th Cir. 1989)); Louis B. Sohn, The New International Law: Protection of Rights of Individuals Rather than States, 32 AM. U. L. REV. 1, 16-17 (1982).
143. Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. See also The Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., U.N. Doc. A/810, at 71 (1948) [hereinafter UDHR]. The UDHR, a UN General Assembly resolution adopted in 1948 without dissent, was originally not thought to entail international legal obligations. See Josef L. Kunz, The United Nations Declaration of Human Rights, 43 AM. J. INT'L L. 316, 322 (1949). See also Richard B. Lillich, The Current Status of the Law of State Responsibility for Injuries to Aliens, in INJURIES TO ALIENS, supra note 88, at 28. Today, however, the UDHR represents customary international law binding upon all States. See, e.g., de Zayas, The Right to One's Homeland, supra note 15, at 271; F. NEWMAN & D. WEISSBRODT, INTERNATIONAL HUMAN RIGHTS (1990) (citing Trajano v. Marcos, 878 F.2d 1439 (9th Cir. 1989)); Louis B. Sohn, The New International Law: Protection of Rights of Individuals Rather than States, 32 AM. U. L. REV. 1, 16-17 (1982).
144. Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. See also The Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., U.N. Doc. A/810, at 71 (1948) [hereinafter UDHR]. The UDHR, a UN General Assembly resolution adopted in 1948 without dissent, was originally not thought to entail international legal obligations. See Josef L. Kunz, The United Nations Declaration of Human Rights, 43 AM. J. INT'L L. 316, 322 (1949). See also Richard B. Lillich, The Current Status of the Law of State Responsibility for Injuries to Aliens, in INJURIES TO ALIENS, supra note 88, at 28. Today, however, the UDHR represents customary international law binding upon all States. See, e.g., de Zayas, The Right to One's Homeland, supra note 15, at 271; F. NEWMAN & D. WEISSBRODT, INTERNATIONAL HUMAN RIGHTS (1990) (citing Trajano v. Marcos, 878 F.2d 1439 (9th Cir. 1989)); Louis B. Sohn, The New International Law: Protection of Rights of Individuals Rather than States, 32 AM. U. L. REV. 1, 16-17 (1982).
145. Id. The U.N. Subcommission on the Prevention of Discrimination and the Protection of Minorities has asserted that "practices of forcible exile, mass expulsions and deportations, population transfer, 'ethnic cleansing,' and other forms of forcible displacement of populations within a country or across borders deprive the affected populations of their right to freedom of movement," in violation of UDHR Article 13 and ICCPR Article 12. Res. 1995/13, 47th Sess. (1995). The Subcommission, a non-governmental body, was created by the U.N. Commission on Human Rights to "undertake studies, particularly in the light of the UDHR, and to make recommendations to the Commission on Human Rights concerning the prevention of discrimination of any kind relating to human rights and fundamental freedoms and the protection of racial, national, religious, and linguistic minorities." E.S.C. Res. 9, U.N. ESCOR, 2d Sess., ¶¶ 9, 10, U.N. Doc. E/RES/9 (II) (1946). See also ROBERTA COHEN & FRANCIS DENG, MASSES IN FLIGHT 86 (1998).
146. UDHR, supra note 98, at 76. For a discussion of the right to property as an internationally recognized human right, see RESTATEMENT, supra note 94, § 702, cmt. k.
147. See de Zayas, The Right to One's Homeland, supra note 15, at 258.
148. See id.
149. The prohibition of population transfers is contained in the Fourth Geneva Convention of 1949, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 49, 75 U.N.T.S. 287, and in Additional Protocol II of 1977. Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflict, June 8, 1977, art 17, 1125 U.N.T.S. 609. Moreover, the International Military Tribunal at Nuremberg prosecuted the deportation of the native population and the implantation of settlers in occupied areas as both a war crime and a crime against humanity. See 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, Nov: 14, 1945-OCT. 1, 1946, at 411 (1948). See also de Zayas, The Right to One's Homeland, supra note 15, at 259. A 1994 U.N. report stated that any "form of forced population transfer from a chosen place of residence, whether by displacement, settlement, internal banishment, or evacuation, directly affects the enjoyment or exercise of the right to free movement and choice of residence within States and constitutes a restriction upon this right. " The Human Rights Dimensions of Population Transfer, Including the Implantation of Settlers: Progress Report ¶ 17, U.N. Doc. E/CN.4/Sub.2/1994/18 (1994) (statement by Awn Shawhat Al- Khasawneh, Special Rapporteur, U.N. Subcommission on Prevention of Discrimination and Protection of Minorities). The report concluded that "[i]nternational law prohibits the transfer of persons, including the implantation of settlers, as a general principle. The governing principle is that the transfer of populations must be done with the consent of the population involved. Because [such transfers are] subject to consent, this principle reinforces the prohibition against such transfer." Id. ¶ 131. Mass expulsion is prohibited by customary international law when practiced in a discriminatory or arbitrary fashion, or when aimed at a particular group. The U.N. Subcommission on the Prevention of Discrimination and the Protection of Minorities [the Subcommission], the U.N. Commission on Human Rights [UNCHR], and the International Law Commission [ILC] all reached that conclusion. The Subcommission, relying on customary law, affirmed the right of persons to remain in peace in their own homes, on their own lands, and in their own countries. See E.S.C. Res. 1994/24, U.N. ESCOR, 49th Sess., U.N. Doc. E/CN.4/Sub.2/1994.L.11/Add.3 (1994). The UNCHR concluded that expulsion is a mass violation of human rights. See Human Rights and Mass Exoduses, Res. 1995/88, art. 3, UN ESCOR, 50th Sess. The ILC based its conclusion on Article 21 of the Draft Code of Crimes against the Peace and Security of Mankind, which states that "deportation or forcible transfer of population"
150. The prohibition of population transfers is contained in the Fourth Geneva Convention of 1949, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 49, 75 U.N.T.S. 287, and in Additional Protocol II of 1977. Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflict, June 8, 1977, art 17, 1125 U.N.T.S. 609. Moreover, the International Military Tribunal at Nuremberg prosecuted the deportation of the native population and the implantation of settlers in occupied areas as both a war crime and a crime against humanity. See 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, Nov: 14, 1945-OCT. 1, 1946, at 411 (1948). See also de Zayas, The Right to One's Homeland, supra note 15, at 259. A 1994 U.N. report stated that any "form of forced population transfer from a chosen place of residence, whether by displacement, settlement, internal banishment, or evacuation, directly affects the enjoyment or exercise of the right to free movement and choice of residence within States and constitutes a restriction upon this right. " The Human Rights Dimensions of Population Transfer, Including the Implantation of Settlers: Progress Report ¶ 17, U.N. Doc. E/CN.4/Sub.2/1994/18 (1994) (statement by Awn Shawhat Al- Khasawneh, Special Rapporteur, U.N. Subcommission on Prevention of Discrimination and Protection of Minorities). The report concluded that "[i]nternational law prohibits the transfer of persons, including the implantation of settlers, as a general principle. The governing principle is that the transfer of populations must be done with the consent of the population involved. Because [such transfers are] subject to consent, this principle reinforces the prohibition against such transfer." Id. ¶ 131. Mass expulsion is prohibited by customary international law when practiced in a discriminatory or arbitrary fashion, or when aimed at a particular group. The U.N. Subcommission on the Prevention of Discrimination and the Protection of Minorities [the Subcommission], the U.N. Commission on Human Rights [UNCHR], and the International Law Commission [ILC] all reached that conclusion. The Subcommission, relying on customary law, affirmed the right of persons to remain in peace in their own homes, on their own lands, and in their own countries. See E.S.C. Res. 1994/24, U.N. ESCOR, 49th Sess., U.N. Doc. E/CN.4/Sub.2/1994.L.11/Add.3 (1994). The UNCHR concluded that expulsion is a mass violation of human rights. See Human Rights and Mass Exoduses, Res. 1995/88, art. 3, UN ESCOR, 50th Sess. The ILC based its conclusion on Article 21 of the Draft Code of Crimes against the Peace and Security of Mankind, which states that "deportation or forcible transfer of population" constitutes a systematic or mass violation of human rights. Report of the International Law Commission on the Work of the Forty-Third Session, U.N. GAOR, 46th Sess., Supp. No. 10. at 250, U.N. Doc. A/46/ 10 (1992) . See also John Quigley, Displaced Palestinians and a Right of Return, 39 HARV. J. INT'L L. 171, 220 (1998) (asserting that expulsion of population is inconceivable under a regime of international law and irreconcilable with respect for human rights); Kathleen Lawand, The Right to Return of Palestinians under International Law, 8 INT'L J. REFUGEE L. 532 (1996); J.M. HENCKAERTS, MASS EXPULSION IN MODERN INTERNATIONAL LAW AND PRACTICE (1995); de Zayas, The Right to One's Homeland, supra note 15, at 259 (asserting that the prohibition of collective expulsion and implantation of settlers must be understood as a negative expression of one of the most fundamental rights of human beings - the right to one's homeland); RESTATEMENT, supra note 94, § 702 cmt. m (characterizing "mass uprooting of a country's population" as a human rights violation); Alfred de Zayas, International Law and Mass Population Transfers, 16 HARV. J. INT'L L. 207, 257 (1975) (concluding that "[m]ass expulsions in any context violate important principles of international [law]. . . . The persons unjustly deported have a right to compensation and also the right to return to their homeland").
151. The prohibition of population transfers is contained in the Fourth Geneva Convention of 1949, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 49, 75 U.N.T.S. 287, and in Additional Protocol II of 1977. Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflict, June 8, 1977, art 17, 1125 U.N.T.S. 609. Moreover, the International Military Tribunal at Nuremberg prosecuted the deportation of the native population and the implantation of settlers in occupied areas as both a war crime and a crime against humanity. See 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, Nov: 14, 1945-OCT. 1, 1946, at 411 (1948). See also de Zayas, The Right to One's Homeland, supra note 15, at 259. A 1994 U.N. report stated that any "form of forced population transfer from a chosen place of residence, whether by displacement, settlement, internal banishment, or evacuation, directly affects the enjoyment or exercise of the right to free movement and choice of residence within States and constitutes a restriction upon this right. " The Human Rights Dimensions of Population Transfer, Including the Implantation of Settlers: Progress Report ¶ 17, U.N. Doc. E/CN.4/Sub.2/1994/18 (1994) (statement by Awn Shawhat Al-Khasawneh, Special Rapporteur, U.N. Subcommission on Prevention of Discrimination and Protection of Minorities). The report concluded that "[i]nternational law prohibits the transfer of persons, including the implantation of settlers, as a general principle. The governing principle is that the transfer of populations must be done with the consent of the population involved. Because [such transfers are] subject to consent, this principle reinforces the prohibition against such transfer." Id. ¶ 131. Mass expulsion is prohibited by customary international law when practiced in a discriminatory or arbitrary fashion, or when aimed at a particular group. The U.N. Subcommission on the Prevention of Discrimination and the Protection of Minorities [the Subcommission], the U.N. Commission on Human Rights [UNCHR], and the International Law Commission [ILC] all reached that conclusion. The Subcommission, relying on customary law, affirmed the right of persons to remain in peace in their own homes, on their own lands, and in their own countries. See E.S.C. Res. 1994/24, U.N. ESCOR, 49th Sess., U.N. Doc. E/CN.4/Sub.2/1994.L.11/Add.3 (1994). The UNCHR concluded that expulsion is a mass violation of human rights. See Human Rights and Mass Exoduses, Res. 1995/88, art. 3, UN ESCOR, 50th Sess. The ILC based its conclusion on Article 21 of the Draft Code of Crimes against the Peace and Security of Mankind, which states that "deportation or forcible transfer of population" constitutes a systematic or mass violation of human rights. Report of the International Law Commission on the Work of the Forty-Third Session, U.N. GAOR, 46th Sess., Supp. No. 10. at 250, U.N. Doc. A/46/ 10 (1992) . See also John Quigley, Displaced Palestinians and a Right of Return, 39 HARV. J. INT'L L. 171, 220 (1998) (asserting that expulsion of population is inconceivable under a regime of international law and irreconcilable with respect for human rights); Kathleen Lawand, The Right to Return of Palestinians under International Law, 8 INT'L J. REFUGEE L. 532 (1996); J.M. HENCKAERTS, MASS EXPULSION IN MODERN INTERNATIONAL LAW AND PRACTICE (1995); de Zayas, The Right to One's Homeland, supra note 15, at 259 (asserting that the prohibition of collective expulsion and implantation of settlers must be understood as a negative expression of one of the most fundamental rights of human beings - the right to one's homeland); RESTATEMENT, supra note 94, § 702 cmt. m (characterizing "mass uprooting of a country's population" as a human rights violation); Alfred de Zayas, International Law and Mass Population Transfers, 16 HARV. J. INT'L L. 207, 257 (1975) (concluding that "[m]ass expulsions in any context violate important principles of international [law]. . . . The persons unjustly deported have a right to compensation and also the right to return to their homeland").
152. The prohibition of population transfers is contained in the Fourth Geneva Convention of 1949, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 49, 75 U.N.T.S. 287, and in Additional Protocol II of 1977. Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflict, June 8, 1977, art 17, 1125 U.N.T.S. 609. Moreover, the International Military Tribunal at Nuremberg prosecuted the deportation of the native population and the implantation of settlers in occupied areas as both a war crime and a crime against humanity. See 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, Nov: 14, 1945-OCT. 1, 1946, at 411 (1948). See also de Zayas, The Right to One's Homeland, supra note 15, at 259. A 1994 U.N. report stated that any "form of forced population transfer from a chosen place of residence, whether by displacement, settlement, internal banishment, or evacuation, directly affects the enjoyment or exercise of the right to free movement and choice of residence within States and constitutes a restriction upon this right. " The Human Rights Dimensions of Population Transfer, Including the Implantation of Settlers: Progress Report ¶ 17, U.N. Doc. E/CN.4/Sub.2/1994/18 (1994) (statement by Awn Shawhat Al- Khasawneh, Special Rapporteur, U.N. Subcommission on Prevention of Discrimination and Protection of Minorities). The report concluded that "[i]nternational law prohibits the transfer of persons, including the implantation of settlers, as a general principle. The governing principle is that the transfer of populations must be done with the consent of the population involved. Because [such transfers are] subject to consent, this principle reinforces the prohibition against such transfer." Id. ¶ 131. Mass expulsion is prohibited by customary international law when practiced in a discriminatory or arbitrary fashion, or when aimed at a particular group. The U.N. Subcommission on the Prevention of Discrimination and the Protection of Minorities [the Subcommission], the U.N. Commission on Human Rights [UNCHR], and the International Law Commission [ILC] all reached that conclusion. The Subcommission, relying on customary law, affirmed the right of persons to remain in peace in their own homes, on their own lands, and in their own countries. See E.S.C. Res. 1994/24, U.N. ESCOR, 49th Sess., U.N. Doc. E/CN.4/Sub.2/1994.L.11/Add.3 (1994). The UNCHR concluded that expulsion is a mass violation of human rights. See Human Rights and Mass Exoduses, Res. 1995/88, art. 3, UN ESCOR, 50th Sess. The ILC based its conclusion on Article 21 of the Draft Code of Crimes against the Peace and Security of Mankind, which states that "deportation or forcible transfer of population" constitutes a systematic or mass violation of human rights. Report of the International Law Commission on the Work of the Forty-Third Session, U.N. GAOR, 46th Sess., Supp. No. 10. at 250, U.N. Doc. A/46/ 10 (1992) . See also John Quigley, Displaced Palestinians and a Right of Return, 39 HARV. J. INT'L L. 171, 220 (1998) (asserting that expulsion of population is inconceivable under a regime of international law and irreconcilable with respect for human rights); Kathleen Lawand, The Right to Return of Palestinians under International Law, 8 INT'L J. REFUGEE L. 532 (1996); J.M. HENCKAERTS, MASS EXPULSION IN MODERN INTERNATIONAL LAW AND PRACTICE (1995); de Zayas, The Right to One's Homeland, supra note 15, at 259 (asserting that the prohibition of collective expulsion and implantation of settlers must be understood as a negative expression of one of the most fundamental rights of human beings - the right to one's homeland); RESTATEMENT, supra note 94, § 702 cmt. m (characterizing "mass uprooting of a country's population" as a human rights violation); Alfred de Zayas, International Law and Mass Population Transfers, 16 HARV. J. INT'L L. 207, 257 (1975) (concluding that "[m]ass expulsions in any context violate important principles of international [law]. . . . The persons unjustly deported have a right to compensation and also the right to return to their homeland").
153. The prohibition of population transfers is contained in the Fourth Geneva Convention of 1949, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 49, 75 U.N.T.S. 287, and in Additional Protocol II of 1977. Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflict, June 8, 1977, art 17, 1125 U.N.T.S. 609. Moreover, the International Military Tribunal at Nuremberg prosecuted the deportation of the native population and the implantation of settlers in occupied areas as both a war crime and a crime against humanity. See 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, Nov: 14, 1945-OCT. 1, 1946, at 411 (1948). See also de Zayas, The Right to One's Homeland, supra note 15, at 259. A 1994 U.N. report stated that any "form of forced population transfer from a chosen place of residence, whether by displacement, settlement, internal banishment, or evacuation, directly affects the enjoyment or exercise of the right to free movement and choice of residence within States and constitutes a restriction upon this right. " The Human Rights Dimensions of Population Transfer, Including the Implantation of Settlers: Progress Report ¶ 17, U.N. Doc. E/CN.4/Sub.2/1994/18 (1994) (statement by Awn Shawhat Al- Khasawneh, Special Rapporteur, U.N. Subcommission on Prevention of Discrimination and Protection of Minorities). The report concluded that "[i]nternational law prohibits the transfer of persons, including the implantation of settlers, as a general principle. The governing principle is that the transfer of populations must be done with the consent of the population involved. Because [such transfers are] subject to consent, this principle reinforces the prohibition against such transfer." Id. ¶ 131. Mass expulsion is prohibited by customary international law when practiced in a discriminatory or arbitrary fashion, or when aimed at a particular group. The U.N. Subcommission on the Prevention of Discrimination and the Protection of Minorities [the Subcommission], the U.N. Commission on Human Rights [UNCHR], and the International Law Commission [ILC] all reached that conclusion. The Subcommission, relying on customary law, affirmed the right of persons to remain in peace in their own homes, on their own lands, and in their own countries. See E.S.C. Res. 1994/24, U.N. ESCOR, 49th Sess., U.N. Doc. E/CN.4/Sub.2/1994.L.11/Add.3 (1994). The UNCHR concluded that expulsion is a mass violation of human rights. See Human Rights and Mass Exoduses, Res. 1995/88, art. 3, UN ESCOR, 50th Sess. The ILC based its conclusion on Article 21 of the Draft Code of Crimes against the Peace and Security of Mankind, which states that "deportation or forcible transfer of population" constitutes a systematic or mass violation of human rights. Report of the International Law Commission on the Work of the Forty-Third Session, U.N. GAOR, 46th Sess., Supp. No. 10. at 250, U.N. Doc. A/46/ 10 (1992) . See also John Quigley, Displaced Palestinians and a Right of Return, 39 HARV. J. INT'L L. 171, 220 (1998) (asserting that expulsion of population is inconceivable under a regime of international law and irreconcilable with respect for human rights); Kathleen Lawand, The Right to Return of Palestinians under International Law, 8 INT'L J. REFUGEE L. 532 (1996); J.M. HENCKAERTS, MASS EXPULSION IN MODERN INTERNATIONAL LAW AND PRACTICE (1995); de Zayas, The Right to One's Homeland, supra note 15, at 259 (asserting that the prohibition of collective expulsion and implantation of settlers must be understood as a negative expression of one of the most fundamental rights of human beings - the right to one's homeland); RESTATEMENT, supra note 94, § 702 cmt. m (characterizing "mass uprooting of a country's population" as a human rights violation); Alfred de Zayas, International Law and Mass Population Transfers, 16 HARV. J. INT'L L. 207, 257 (1975) (concluding that "[m]ass expulsions in any context violate important principles of international [law]. . . . The persons unjustly deported have a right to compensation and also the right to return to their homeland").
154. The prohibition of population transfers is contained in the Fourth Geneva Convention of 1949, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 49, 75 U.N.T.S. 287, and in Additional Protocol II of 1977. Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflict, June 8, 1977, art 17, 1125 U.N.T.S. 609. Moreover, the International Military Tribunal at Nuremberg prosecuted the deportation of the native population and the implantation of settlers in occupied areas as both a war crime and a crime against humanity. See 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, Nov: 14, 1945-OCT. 1, 1946, at 411 (1948). See also de Zayas, The Right to One's Homeland, supra note 15, at 259. A 1994 U.N. report stated that any "form of forced population transfer from a chosen place of residence, whether by displacement, settlement, internal banishment, or evacuation, directly affects the enjoyment or exercise of the right to free movement and choice of residence within States and constitutes a restriction upon this right. " The Human Rights Dimensions of Population Transfer, Including the Implantation of Settlers: Progress Report ¶ 17, U.N. Doc. E/CN.4/Sub.2/1994/18 (1994) (statement by Awn Shawhat Al- Khasawneh, Special Rapporteur, U.N. Subcommission on Prevention of Discrimination and Protection of Minorities). The report concluded that "[i]nternational law prohibits the transfer of persons, including the implantation of settlers, as a general principle. The governing principle is that the transfer of populations must be done with the consent of the population involved. Because [such transfers are] subject to consent, this principle reinforces the prohibition against such transfer." Id. ¶ 131. Mass expulsion is prohibited by customary international law when practiced in a discriminatory or arbitrary fashion, or when aimed at a particular group. The U.N. Subcommission on the Prevention of Discrimination and the Protection of Minorities [the Subcommission], the U.N. Commission on Human Rights [UNCHR], and the International Law Commission [ILC] all reached that conclusion. The Subcommission, relying on customary law, affirmed the right of persons to remain in peace in their own homes, on their own lands, and in their own countries. See E.S.C. Res. 1994/24, U.N. ESCOR, 49th Sess., U.N. Doc. E/CN.4/Sub.2/1994.L.11/Add.3 (1994). The UNCHR concluded that expulsion is a mass violation of human rights. See Human Rights and Mass Exoduses, Res. 1995/88, art. 3, UN ESCOR, 50th Sess. The ILC based its conclusion on Article 21 of the Draft Code of Crimes against the Peace and Security of Mankind, which states that "deportation or forcible transfer of population" constitutes a systematic or mass violation of human rights. Report of the International Law Commission on the Work of the Forty-Third Session, U.N. GAOR, 46th Sess., Supp. No. 10. at 250, U.N. Doc. A/46/ 10 (1992) . See also John Quigley, Displaced Palestinians and a Right of Return, 39 HARV. J. INT'L L. 171, 220 (1998) (asserting that expulsion of population is inconceivable under a regime of international law and irreconcilable with respect for human rights); Kathleen Lawand, The Right to Return of Palestinians under International Law, 8 INT'L J. REFUGEE L. 532 (1996); J.M. HENCKAERTS, MASS EXPULSION IN MODERN INTERNATIONAL LAW AND PRACTICE (1995); de Zayas, The Right to One's Homeland, supra note 15, at 259 (asserting that the prohibition of collective expulsion and implantation of settlers must be understood as a negative expression of one of the most fundamental rights of human beings - the right to one's homeland); RESTATEMENT, supra note 94, § 702 cmt. m (characterizing "mass uprooting of a country's population" as a human rights violation); Alfred de Zayas, International Law and Mass Population Transfers, 16 HARV. J. INT'L L. 207, 257 (1975) (concluding that "[m]ass expulsions in any context violate important principles of international [law]. . . . The persons unjustly deported have a right to compensation and also the right to return to their homeland").
155. The prohibition of population transfers is contained in the Fourth Geneva Convention of 1949, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 49, 75 U.N.T.S. 287, and in Additional Protocol II of 1977. Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflict, June 8, 1977, art 17, 1125 U.N.T.S. 609. Moreover, the International Military Tribunal at Nuremberg prosecuted the deportation of the native population and the implantation of settlers in occupied areas as both a war crime and a crime against humanity. See 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, Nov: 14, 1945-OCT. 1, 1946, at 411 (1948). See also de Zayas, The Right to One's Homeland, supra note 15, at 259. A 1994 U.N. report stated that any "form of forced population transfer from a chosen place of residence, whether by displacement, settlement, internal banishment, or evacuation, directly affects the enjoyment or exercise of the right to free movement and choice of residence within States and constitutes a restriction upon this right. " The Human Rights Dimensions of Population Transfer, Including the Implantation of Settlers: Progress Report ¶ 17, U.N. Doc. E/CN.4/Sub.2/1994/18 (1994) (statement by Awn Shawhat Al- Khasawneh, Special Rapporteur, U.N. Subcommission on Prevention of Discrimination and Protection of Minorities). The report concluded that "[i]nternational law prohibits the transfer of persons, including the implantation of settlers, as a general principle. The governing principle is that the transfer of populations must be done with the consent of the population involved. Because [such transfers are] subject to consent, this principle reinforces the prohibition against such transfer." Id. ¶ 131. Mass expulsion is prohibited by customary international law when practiced in a discriminatory or arbitrary fashion, or when aimed at a particular group. The U.N. Subcommission on the Prevention of Discrimination and the Protection of Minorities [the Subcommission], the U.N. Commission on Human Rights [UNCHR], and the International Law Commission [ILC] all reached that conclusion. The Subcommission, relying on customary law, affirmed the right of persons to remain in peace in their own homes, on their own lands, and in their own countries. See E.S.C. Res. 1994/24, U.N. ESCOR, 49th Sess., U.N. Doc. E/CN.4/Sub.2/1994.L.11/Add.3 (1994). The UNCHR concluded that expulsion is a mass violation of human rights. See Human Rights and Mass Exoduses, Res. 1995/88, art. 3, UN ESCOR, 50th Sess. The ILC based its conclusion on Article 21 of the Draft Code of Crimes against the Peace and Security of Mankind, which states that "deportation or forcible transfer of population" constitutes a systematic or mass violation of human rights. Report of the International Law Commission on the Work of the Forty-Third Session, U.N. GAOR, 46th Sess., Supp. No. 10. at 250, U.N. Doc. A/46/ 10 (1992) . See also John Quigley, Displaced Palestinians and a Right of Return, 39 HARV. J. INT'L L. 171, 220 (1998) (asserting that expulsion of population is inconceivable under a regime of international law and irreconcilable with respect for human rights); Kathleen Lawand, The Right to Return of Palestinians under International Law, 8 INT'L J. REFUGEE L. 532 (1996); J.M. HENCKAERTS, MASS EXPULSION IN MODERN INTERNATIONAL LAW AND PRACTICE (1995); de Zayas, The Right to One's Homeland, supra note 15, at 259 (asserting that the prohibition of collective expulsion and implantation of settlers must be understood as a negative expression of one of the most fundamental rights of human beings - the right to one's homeland); RESTATEMENT, supra note 94, § 702 cmt. m (characterizing "mass uprooting of a country's population" as a human rights violation); Alfred de Zayas, International Law and Mass Population Transfers, 16 HARV. J. INT'L L. 207, 257 (1975) (concluding that "[m]ass expulsions in any context violate important principles of international [law]. . . . The persons unjustly deported have a right to compensation and also the right to return to their homeland").
156. The prohibition of population transfers is contained in the Fourth Geneva Convention of 1949, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 49, 75 U.N.T.S. 287, and in Additional Protocol II of 1977. Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflict, June 8, 1977, art 17, 1125 U.N.T.S. 609. Moreover, the International Military Tribunal at Nuremberg prosecuted the deportation of the native population and the implantation of settlers in occupied areas as both a war crime and a crime against humanity. See 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, Nov: 14, 1945-OCT. 1, 1946, at 411 (1948). See also de Zayas, The Right to One's Homeland, supra note 15, at 259. A 1994 U.N. report stated that any "form of forced population transfer from a chosen place of residence, whether by displacement, settlement, internal banishment, or evacuation, directly affects the enjoyment or exercise of the right to free movement and choice of residence within States and constitutes a restriction upon this right. " The Human Rights Dimensions of Population Transfer, Including the Implantation of Settlers: Progress Report ¶ 17, U.N. Doc. E/CN.4/Sub.2/1994/18 (1994) (statement by Awn Shawhat Al- Khasawneh, Special Rapporteur, U.N. Subcommission on Prevention of Discrimination and Protection of Minorities). The report concluded that "[i]nternational law prohibits the transfer of persons, including the implantation of settlers, as a general principle. The governing principle is that the transfer of populations must be done with the consent of the population involved. Because [such transfers are] subject to consent, this principle reinforces the prohibition against such transfer." Id. ¶ 131. Mass expulsion is prohibited by customary international law when practiced in a discriminatory or arbitrary fashion, or when aimed at a particular group. The U.N. Subcommission on the Prevention of Discrimination and the Protection of Minorities [the Subcommission], the U.N. Commission on Human Rights [UNCHR], and the International Law Commission [ILC] all reached that conclusion. The Subcommission, relying on customary law, affirmed the right of persons to remain in peace in their own homes, on their own lands, and in their own countries. See E.S.C. Res. 1994/24, U.N. ESCOR, 49th Sess., U.N. Doc. E/CN.4/Sub.2/1994.L.11/Add.3 (1994). The UNCHR concluded that expulsion is a mass violation of human rights. See Human Rights and Mass Exoduses, Res. 1995/88, art. 3, UN ESCOR, 50th Sess. The ILC based its conclusion on Article 21 of the Draft Code of Crimes against the Peace and Security of Mankind, which states that "deportation or forcible transfer of population" constitutes a systematic or mass violation of human rights. Report of the International Law Commission on the Work of the Forty-Third Session, U.N. GAOR, 46th Sess., Supp. No. 10. at 250, U.N. Doc. A/46/ 10 (1992) . See also John Quigley, Displaced Palestinians and a Right of Return, 39 HARV. J. INT'L L. 171, 220 (1998) (asserting that expulsion of population is inconceivable under a regime of international law and irreconcilable with respect for human rights); Kathleen Lawand, The Right to Return of Palestinians under International Law, 8 INT'L J. REFUGEE L. 532 (1996); J.M. HENCKAERTS, MASS EXPULSION IN MODERN INTERNATIONAL LAW AND PRACTICE (1995); de Zayas, The Right to One's Homeland, supra note 15, at 259 (asserting that the prohibition of collective expulsion and implantation of settlers must be understood as a negative expression of one of the most fundamental rights of human beings - the right to one's homeland); RESTATEMENT, supra note 94, § 702 cmt. m (characterizing "mass uprooting of a country's population" as a human rights violation); Alfred de Zayas, International Law and Mass Population Transfers, 16 HARV. J. INT'L L. 207, 257 (1975) (concluding that "[m]ass expulsions in any context violate important principles of international [law]. . . . The persons unjustly deported have a right to compensation and also the right to return to their homeland").
157. The prohibition of population transfers is contained in the Fourth Geneva Convention of 1949, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 49, 75 U.N.T.S. 287, and in Additional Protocol II of 1977. Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflict, June 8, 1977, art 17, 1125 U.N.T.S. 609. Moreover, the International Military Tribunal at Nuremberg prosecuted the deportation of the native population and the implantation of settlers in occupied areas as both a war crime and a crime against humanity. See 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, Nov: 14, 1945-OCT. 1, 1946, at 411 (1948). See also de Zayas, The Right to One's Homeland, supra note 15, at 259. A 1994 U.N. report stated that any "form of forced population transfer from a chosen place of residence, whether by displacement, settlement, internal banishment, or evacuation, directly affects the enjoyment or exercise of the right to free movement and choice of residence within States and constitutes a restriction upon this right. " The Human Rights Dimensions of Population Transfer, Including the Implantation of Settlers: Progress Report ¶ 17, U.N. Doc. E/CN.4/Sub.2/1994/18 (1994) (statement by Awn Shawhat Al- Khasawneh, Special Rapporteur, U.N. Subcommission on Prevention of Discrimination and Protection of Minorities). The report concluded that "[i]nternational law prohibits the transfer of persons, including the implantation of settlers, as a general principle. The governing principle is that the transfer of populations must be done with the consent of the population involved. Because [such transfers are] subject to consent, this principle reinforces the prohibition against such transfer." Id. ¶ 131. Mass expulsion is prohibited by customary international law when practiced in a discriminatory or arbitrary fashion, or when aimed at a particular group. The U.N. Subcommission on the Prevention of Discrimination and the Protection of Minorities [the Subcommission], the U.N. Commission on Human Rights [UNCHR], and the International Law Commission [ILC] all reached that conclusion. The Subcommission, relying on customary law, affirmed the right of persons to remain in peace in their own homes, on their own lands, and in their own countries. See E.S.C. Res. 1994/24, U.N. ESCOR, 49th Sess., U.N. Doc. E/CN.4/Sub.2/1994.L.11/Add.3 (1994). The UNCHR concluded that expulsion is a mass violation of human rights. See Human Rights and Mass Exoduses, Res. 1995/88, art. 3, UN ESCOR, 50th Sess. The ILC based its conclusion on Article 21 of the Draft Code of Crimes against the Peace and Security of Mankind, which states that "deportation or forcible transfer of population" constitutes a systematic or mass violation of human rights. Report of the International Law Commission on the Work of the Forty-Third Session, U.N. GAOR, 46th Sess., Supp. No. 10. at 250, U.N. Doc. A/46/ 10 (1992) . See also John Quigley, Displaced Palestinians and a Right of Return, 39 HARV. J. INT'L L. 171, 220 (1998) (asserting that expulsion of population is inconceivable under a regime of international law and irreconcilable with respect for human rights); Kathleen Lawand, The Right to Return of Palestinians under International Law, 8 INT'L J. REFUGEE L. 532 (1996); J.M. HENCKAERTS, MASS EXPULSION IN MODERN INTERNATIONAL LAW AND PRACTICE (1995); de Zayas, The Right to One's Homeland, supra note 15, at 259 (asserting that the prohibition of collective expulsion and implantation of settlers must be understood as a negative expression of one of the most fundamental rights of human beings - the right to one's homeland); RESTATEMENT, supra note 94, § 702 cmt. m (characterizing "mass uprooting of a country's population" as a human rights violation); Alfred de Zayas, International Law and Mass Population Transfers, 16 HARV. J. INT'L L. 207, 257 (1975) (concluding that "[m]ass expulsions in any context violate important principles of international [law]. . . . The persons unjustly deported have a right to compensation and also the right to return to their homeland").
158. The prohibition of population transfers is contained in the Fourth Geneva Convention of 1949, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 49, 75 U.N.T.S. 287, and in Additional Protocol II of 1977. Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflict, June 8, 1977, art 17, 1125 U.N.T.S. 609. Moreover, the International Military Tribunal at Nuremberg prosecuted the deportation of the native population and the implantation of settlers in occupied areas as both a war crime and a crime against humanity. See 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, Nov: 14, 1945-OCT. 1, 1946, at 411 (1948). See also de Zayas, The Right to One's Homeland, supra note 15, at 259. A 1994 U.N. report stated that any "form of forced population transfer from a chosen place of residence, whether by displacement, settlement, internal banishment, or evacuation, directly affects the enjoyment or exercise of the right to free movement and choice of residence within States and constitutes a restriction upon this right. " The Human Rights Dimensions of Population Transfer, Including the Implantation of Settlers: Progress Report ¶ 17, U.N. Doc. E/CN.4/Sub.2/1994/18 (1994) (statement by Awn Shawhat Al- Khasawneh, Special Rapporteur, U.N. Subcommission on Prevention of Discrimination and Protection of Minorities). The report concluded that "[i]nternational law prohibits the transfer of persons, including the implantation of settlers, as a general principle. The governing principle is that the transfer of populations must be done with the consent of the population involved. Because [such transfers are] subject to consent, this principle reinforces the prohibition against such transfer." Id. ¶ 131. Mass expulsion is prohibited by customary international law when practiced in a discriminatory or arbitrary fashion, or when aimed at a particular group. The U.N. Subcommission on the Prevention of Discrimination and the Protection of Minorities [the Subcommission], the U.N. Commission on Human Rights [UNCHR], and the International Law Commission [ILC] all reached that conclusion. The Subcommission, relying on customary law, affirmed the right of persons to remain in peace in their own homes, on their own lands, and in their own countries. See E.S.C. Res. 1994/24, U.N. ESCOR, 49th Sess., U.N. Doc. E/CN.4/Sub.2/1994.L.11/Add.3 (1994). The UNCHR concluded that expulsion is a mass violation of human rights. See Human Rights and Mass Exoduses, Res. 1995/88, art. 3, UN ESCOR, 50th Sess. The ILC based its conclusion on Article 21 of the Draft Code of Crimes against the Peace and Security of Mankind, which states that "deportation or forcible transfer of population" constitutes a systematic or mass violation of human rights. Report of the International Law Commission on the Work of the Forty-Third Session, U.N. GAOR, 46th Sess., Supp. No. 10. at 250, U.N. Doc. A/46/ 10 (1992) . See also John Quigley, Displaced Palestinians and a Right of Return, 39 HARV. J. INT'L L. 171, 220 (1998) (asserting that expulsion of population is inconceivable under a regime of international law and irreconcilable with respect for human rights); Kathleen Lawand, The Right to Return of Palestinians under International Law, 8 INT'L J. REFUGEE L. 532 (1996); J.M. HENCKAERTS, MASS EXPULSION IN MODERN INTERNATIONAL LAW AND PRACTICE (1995); de Zayas, The Right to One's Homeland, supra note 15, at 259 (asserting that the prohibition of collective expulsion and implantation of settlers must be understood as a negative expression of one of the most fundamental rights of human beings - the right to one's homeland); RESTATEMENT, supra note 94, § 702 cmt. m (characterizing "mass uprooting of a country's population" as a human rights violation); Alfred de Zayas, International Law and Mass Population Transfers, 16 HARV. J. INT'L L. 207, 257 (1975) (concluding that "[m]ass expulsions in any context violate important principles of international [law]. . . . The persons unjustly deported have a right to compensation and also the right to return to their homeland").
159. The prohibition of population transfers is contained in the Fourth Geneva Convention of 1949, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 49, 75 U.N.T.S. 287, and in Additional Protocol II of 1977. Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflict, June 8, 1977, art 17, 1125 U.N.T.S. 609. Moreover, the International Military Tribunal at Nuremberg prosecuted the deportation of the native population and the implantation of settlers in occupied areas as both a war crime and a crime against humanity. See 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, Nov: 14, 1945-OCT. 1, 1946, at 411 (1948). See also de Zayas, The Right to One's Homeland, supra note 15, at 259. A 1994 U.N. report stated that any "form of forced population transfer from a chosen place of residence, whether by displacement, settlement, internal banishment, or evacuation, directly affects the enjoyment or exercise of the right to free movement and choice of residence within States and constitutes a restriction upon this right. " The Human Rights Dimensions of Population Transfer, Including the Implantation of Settlers: Progress Report ¶ 17, U.N. Doc. E/CN.4/Sub.2/1994/18 (1994) (statement by Awn Shawhat Al- Khasawneh, Special Rapporteur, U.N. Subcommission on Prevention of Discrimination and Protection of Minorities). The report concluded that "[i]nternational law prohibits the transfer of persons, including the implantation of settlers, as a general principle. The governing principle is that the transfer of populations must be done with the consent of the population involved. Because [such transfers are] subject to consent, this principle reinforces the prohibition against such transfer." Id. ¶ 131. Mass expulsion is prohibited by customary international law when practiced in a discriminatory or arbitrary fashion, or when aimed at a particular group. The U.N. Subcommission on the Prevention of Discrimination and the Protection of Minorities [the Subcommission], the U.N. Commission on Human Rights [UNCHR], and the International Law Commission [ILC] all reached that conclusion. The Subcommission, relying on customary law, affirmed the right of persons to remain in peace in their own homes, on their own lands, and in their own countries. See E.S.C. Res. 1994/24, U.N. ESCOR, 49th Sess., U.N. Doc. E/CN.4/Sub.2/1994.L.11/Add.3 (1994). The UNCHR concluded that expulsion is a mass violation of human rights. See Human Rights and Mass Exoduses, Res. 1995/88, art. 3, UN ESCOR, 50th Sess. The ILC based its conclusion on Article 21 of the Draft Code of Crimes against the Peace and Security of Mankind, which states that "deportation or forcible transfer of population" constitutes a systematic or mass violation of human rights. Report of the International Law Commission on the Work of the Forty-Third Session, U.N. GAOR, 46th Sess., Supp. No. 10. at 250, U.N. Doc. A/46/ 10 (1992) . See also John Quigley, Displaced Palestinians and a Right of Return, 39 HARV. J. INT'L L. 171, 220 (1998) (asserting that expulsion of population is inconceivable under a regime of international law and irreconcilable with respect for human rights); Kathleen Lawand, The Right to Return of Palestinians under International Law, 8 INT'L J. REFUGEE L. 532 (1996); J.M. HENCKAERTS, MASS EXPULSION IN MODERN INTERNATIONAL LAW AND PRACTICE (1995); de Zayas, The Right to One's Homeland, supra note 15, at 259 (asserting that the prohibition of collective expulsion and implantation of settlers must be understood as a negative expression of one of the most fundamental rights of human beings - the right to one's homeland); RESTATEMENT, supra note 94, § 702 cmt. m (characterizing "mass uprooting of a country's population" as a human rights violation); Alfred de Zayas, International Law and Mass Population Transfers, 16 HARV. J. INT'L L. 207, 257 (1975) (concluding that "[m]ass expulsions in any context violate important principles of international [law]. . . . The persons unjustly deported have a right to compensation and also the right to return to their homeland").
160. The duty to make reparation is based on the fact that "[i]n international law, as in domestic law, rights without remedies are illusory, i.e., 'no rights' at all." Covey T. Oliver, in INJURIES TO ALIENS, supra note 88, at 61. See also Lee, supra note 85, at 536. Absent the obligation "to make good the loss," there would be no duty on the part of States to observe rules of international law. H. GROTIUS, DE JURE BELLI AC PACIS, bk. II, ch. XVII, pt. 1, at 430 (1646 ed. Carnegie Endowment trans. 1925). See also Draft Declaration of Principles of International Law on Compensation to Refugees and Countries of Asylum, International Law Association, 63d Conference, Warsaw 1988, at 679 [hereinafter Draft Declaration], citing A. VERDROSS, VERFASSUNG DER VOLKERRECHTGEMEINSCHAFT 164 (1926).
161. The duty to make reparation is based on the fact that "[i]n international law, as in domestic law, rights without remedies are illusory, i.e., 'no rights' at all." Covey T. Oliver, in INJURIES TO ALIENS, supra note 88, at 61. See also Lee, supra note 85, at 536. Absent the obligation "to make good the loss," there would be no duty on the part of States to observe rules of international law. H. GROTIUS, DE JURE BELLI AC PACIS, bk. II, ch. XVII, pt. 1, at 430 (1646 ed. Carnegie Endowment trans. 1925). See also Draft Declaration of Principles of International Law on Compensation to Refugees and Countries of Asylum, International Law Association, 63d Conference, Warsaw 1988, at 679 [hereinafter Draft Declaration], citing A. VERDROSS, VERFASSUNG DER VOLKERRECHTGEMEINSCHAFT 164 (1926).
162. The duty to make reparation is based on the fact that "[i]n international law, as in domestic law, rights without remedies are illusory, i.e., 'no rights' at all." Covey T. Oliver, in INJURIES TO ALIENS, supra note 88, at 61. See also Lee, supra note 85, at 536. Absent the obligation "to make good the loss," there would be no duty on the part of States to observe rules of international law. H. GROTIUS, DE JURE BELLI AC PACIS, bk. II, ch. XVII, pt. 1, at 430 (1646 ed. Carnegie Endowment trans. 1925). See also Draft Declaration of Principles of International Law on Compensation to Refugees and Countries of Asylum, International Law Association, 63d Conference, Warsaw 1988, at 679 [hereinafter Draft Declaration], citing A. VERDROSS, VERFASSUNG DER VOLKERRECHTGEMEINSCHAFT 164 (1926).
163. The duty to make reparation is based on the fact that "[i]n international law, as in domestic law, rights without remedies are illusory, i.e., 'no rights' at all." Covey T. Oliver, in INJURIES TO ALIENS, supra note 88, at 61. See also Lee, supra note 85, at 536. Absent the obligation "to make good the loss," there would be no duty on the part of States to observe rules of international law. H. GROTIUS, DE JURE BELLI AC PACIS, bk. II, ch. XVII, pt. 1, at 430 (1646 ed. Carnegie Endowment trans. 1925). See also Draft Declaration of Principles of International Law on Compensation to Refugees and Countries of Asylum, International Law Association, 63d Conference, Warsaw 1988, at 679 [hereinafter Draft Declaration], citing A. VERDROSS, VERFASSUNG DER VOLKERRECHTGEMEINSCHAFT 164 (1926).
164. The duty to make reparation is based on the fact that "[i]n international law, as in domestic law, rights without remedies are illusory, i.e., 'no rights' at all." Covey T. Oliver, in INJURIES TO ALIENS, supra note 88, at 61. See also Lee, supra note 85, at 536. Absent the obligation "to make good the loss," there would be no duty on the part of States to observe rules of international law. H. GROTIUS, DE JURE BELLI AC PACIS, bk. II, ch. XVII, pt. 1, at 430 (1646 ed. Carnegie Endowment trans. 1925). See also Draft Declaration of Principles of International Law on Compensation to Refugees and Countries of Asylum, International Law Association, 63d Conference, Warsaw 1988, at 679 [hereinafter Draft Declaration], citing A. VERDROSS, VERFASSUNG DER VOLKERRECHTGEMEINSCHAFT 164 (1926).
165. See, e.g., Draft Articles on State Responsibility: Comments of the Government of the United States of America 18 (Oct. 22, 1997), 37 I.L.M. 468, 479 (1998) [hereinafter Comments of the United States]; Report of the Int'l L. Comm'n on the work of its forty-fifth session May 3 - July 23, 1993 at 168, GAOR 48th Sess. Supp. 10, U.N. Doc. A/48/10 (stating that "[c]ompensation is the main and central remedy resorted to following an internationally wrongful act"); BROWNLIE, supra note 88, at 211; Oliver, supra note 88, at 71.
166. See, e.g., Draft Articles on State Responsibility: Comments of the Government of the United States of America 18 (Oct. 22, 1997), 37 I.L.M. 468, 479 (1998) [hereinafter Comments of the United States]; Report of the Int'l L. Comm'n on the work of its forty-fifth session May 3 - July 23, 1993 at 168, GAOR 48th Sess. Supp. 10, U.N. Doc. A/48/10 (stating that "[c]ompensation is the main and central remedy resorted to following an internationally wrongful act"); BROWNLIE, supra note 88, at 211; Oliver, supra note 88, at 71.
167. See, e.g., Draft Articles on State Responsibility: Comments of the Government of the United States of America 18 (Oct. 22, 1997), 37 I.L.M. 468, 479 (1998) [hereinafter Comments of the United States]; Report of the Int'l L. Comm'n on the work of its forty-fifth session May 3 - July 23, 1993 at 168, GAOR 48th Sess. Supp. 10, U.N. Doc. A/48/10 (stating that "[c]ompensation is the main and central remedy resorted to following an internationally wrongful act"); BROWNLIE, supra note 88, at 211; Oliver, supra note 88, at 71.
168. Principle 2 of the Cairo Declaration provides that "[a] State that turns a person into a refugee commits an internationally wrongful act, which creates the obligation to make good the wrong done." Cairo Declaration, supra note 97, at 158.
169. van Boven Report, supra note 93, ¶ 42. Thus, States and not individuals or groups, could claim reparation from the violating State. See id. See also Christian Tomuschat, State Responsibility and the Country of Origin, in THE PROBLEM OF REFUGEES IN THE LIGHT OF CONTEMPORARY LEGAL ISSUES 59, 64 (V. Gowlland-Debbas ed., 1995) (noting that none of the Special Rapporteurs on the International Law Commission on the topic of State responsibility even addressed the rights of individuals injured in the case of a State's breach of a human rights obligation); NIGEL RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW 97 (1987).
170. van Boven Report, supra note 93, ¶ 42. Thus, States and not individuals or groups, could claim reparation from the violating State. See id. See also Christian Tomuschat, State Responsibility and the Country of Origin, in THE PROBLEM OF REFUGEES IN THE LIGHT OF CONTEMPORARY LEGAL ISSUES 59, 64 (V. Gowlland-Debbas ed., 1995) (noting that none of the Special Rapporteurs on the International Law Commission on the topic of State responsibility even addressed the rights of individuals injured in the case of a State's breach of a human rights obligation); NIGEL RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW 97 (1987).
171. van Boven Report, supra note 93, ¶ 42. Thus, States and not individuals or groups, could claim reparation from the violating State. See id. See also Christian Tomuschat, State Responsibility and the Country of Origin, in THE PROBLEM OF REFUGEES IN THE LIGHT OF CONTEMPORARY LEGAL ISSUES 59, 64 (V. Gowlland-Debbas ed., 1995) (noting that none of the Special Rapporteurs on the International Law Commission on the topic of State responsibility even addressed the rights of individuals injured in the case of a State's breach of a human rights obligation); NIGEL RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW 97 (1987).
172. van Boven Report, supra note 93, ¶ 45. See also Preliminary Report on Diplomatic Protection, Mohamed Bennouna, Special Rapporteur to the International Law Commission ¶ 34, 55th Sess., U.N. Doc. No. A/CN.4/484 (1998) (noting that "since the adoption of the Charter of the United Nations and the Universal Declaration of Human Rights, there has been a trend towards recognition of the right of the individual through a number of large multilateral treaties," e.g., ICCPR and the International Covenant on Economic, Social, and Cultural Rights). With respect to human rights treaty law, the Inter-American Court has asserted that the American Convention on Human Rights is designed to protect individuals and that principles of State responsibility should be applied with respect to individuals. The Court, in an advisory opinion, concluded that . . . modern human rights treaties in general, and the American Convention in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings, irrespective of their nationality . . . . In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other States, but towards all individuals within their jurisdiction. The Effect of Reservations of the Entry into Force of the American Convention, Inter- American Court, Advisory Opinion OC-2/82 of Sept. 24, 1982, Inter-American Court of Human Rights, Series A, Judgments and Opinions, No. 2, ¶ 29. See also Meindersma- Part 2, supra note 20, at 639 (asserting that "the violation of any human right gives rise to a [basic] right of reparation for the victim"). The United States, however, does not accept this broadened view of the law of State responsibility, believing instead, that the offending State bears responsibility for its actions only towards the injured State at the inter-State level.
173. van Boven Report, supra note 93, ¶ 45. See also Preliminary Report on Diplomatic Protection, Mohamed Bennouna, Special Rapporteur to the International Law Commission ¶ 34, 55th Sess., U.N. Doc. No. A/CN.4/484 (1998) (noting that "since the adoption of the Charter of the United Nations and the Universal Declaration of Human Rights, there has been a trend towards recognition of the right of the individual through a number of large multilateral treaties," e.g., ICCPR and the International Covenant on Economic, Social, and Cultural Rights). With respect to human rights treaty law, the Inter-American Court has asserted that the American Convention on Human Rights is designed to protect individuals and that principles of State responsibility should be applied with respect to individuals. The Court, in an advisory opinion, concluded that . . . modern human rights treaties in general, and the American Convention in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings, irrespective of their nationality . . . . In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other States, but towards all individuals within their jurisdiction. The Effect of Reservations of the Entry into Force of the American Convention, Inter- American Court, Advisory Opinion OC-2/82 of Sept. 24, 1982, Inter-American Court of Human Rights, Series A, Judgments and Opinions, No. 2, ¶ 29. See also Meindersma- Part 2, supra note 20, at 639 (asserting that "the violation of any human right gives rise to a [basic] right of reparation for the victim"). The United States, however, does not accept this broadened view of the law of State responsibility, believing instead, that the offending State bears responsibility for its actions only towards the injured State at the inter-State level.
174. van Boven Report, supra note 93, ¶ 45. See also Preliminary Report on Diplomatic Protection, Mohamed Bennouna, Special Rapporteur to the International Law Commission ¶ 34, 55th Sess., U.N. Doc. No. A/CN.4/484 (1998) (noting that "since the adoption of the Charter of the United Nations and the Universal Declaration of Human Rights, there has been a trend towards recognition of the right of the individual through a number of large multilateral treaties," e.g., ICCPR and the International Covenant on Economic, Social, and Cultural Rights). With respect to human rights treaty law, the Inter-American Court has asserted that the American Convention on Human Rights is designed to protect individuals and that principles of State responsibility should be applied with respect to individuals. The Court, in an advisory opinion, concluded that . . . modern human rights treaties in general, and the American Convention in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings, irrespective of their nationality . . . . In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other States, but towards all individuals within their jurisdiction. The Effect of Reservations of the Entry into Force of the American Convention, Inter-American Court, Advisory Opinion OC-2/82 of Sept. 24, 1982, Inter-American Court of Human Rights, Series A, Judgments and Opinions, No. 2, ¶ 29. See also Meindersma- Part 2, supra note 20, at 639 (asserting that "the violation of any human right gives rise to a [basic] right of reparation for the victim"). The United States, however, does not accept this broadened view of the law of State responsibility, believing instead, that the offending State bears responsibility for its actions only towards the injured State at the inter-State level.
175. van Boven Report, supra note 93, ¶ 45. See also Preliminary Report on Diplomatic Protection, Mohamed Bennouna, Special Rapporteur to the International Law Commission ¶ 34, 55th Sess., U.N. Doc. No. A/CN.4/484 (1998) (noting that "since the adoption of the Charter of the United Nations and the Universal Declaration of Human Rights, there has been a trend towards recognition of the right of the individual through a number of large
176. van Boven Report, supra note 93, ¶ 45. See also U.N. Comm'n Hum. Rts. Res. 1998/43, available at 〈http://www.unhchr.ch/html/menu4/chrres/1998.res/43.htm〉 (visited Apr. 26, 1999); U.N. Comm'n Hum. Rts. Res. 1997/29, available at 〈http:// unhchr.ch/html/menu4/chrres/1997.res/29.htm〉 (visited Apr. 26, 1999) (reaffirming that victims of grave violations of human rights should receive, in appropriate cases, restitution, compensation, and rehabilitation); Beyani, supra note 93, at 135; IAN BROWNLIE, PRINCIPLES OF INTERNATIONAL LAW 512-13 (4th ed. 1990) [hereinafter BROWNLIE, PRINCIPLES OF INTERNATIONAL LAW]; THEODOR MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY LAW 95-8 (1989). Note that States of asylum, forced to bear much of the burden of refugee flows, are also victims of the wrong committed by States responsible for creating refugee flows. For a discussion of the rights of States of asylum vis-a-vis States of origin, see, e.g., Beyani, supra note 95, at 131-32; Lee, supra note 85, at 566.
177. van Boven Report, supra note 93, ¶ 45. See also U.N. Comm'n Hum. Rts. Res. 1998/43, available at 〈http://www.unhchr.ch/html/menu4/chrres/1998.res/43.htm〉 (visited Apr. 26, 1999); U.N. Comm'n Hum. Rts. Res. 1997/29, available at 〈http:// unhchr.ch/html/menu4/chrres/1997.res/29.htm〉 (visited Apr. 26, 1999) (reaffirming that victims of grave violations of human rights should receive, in appropriate cases, restitution, compensation, and rehabilitation); Beyani, supra note 93, at 135; IAN BROWNLIE, PRINCIPLES OF INTERNATIONAL LAW 512-13 (4th ed. 1990) [hereinafter BROWNLIE, PRINCIPLES OF INTERNATIONAL LAW]; THEODOR MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY LAW 95-8 (1989). Note that States of asylum, forced to bear much of the burden of refugee flows, are also victims of the wrong committed by States responsible for creating refugee flows. For a discussion of the rights of States of asylum vis-a-vis States of origin, see, e.g., Beyani, supra note 95, at 131-32; Lee, supra note 85, at 566.
178. van Boven Report, supra note 93, ¶ 45. See also U.N. Comm'n Hum. Rts. Res. 1998/43, available at 〈http://www.unhchr.ch/html/menu4/chrres/1998.res/43.htm〉 (visited Apr. 26, 1999); U.N. Comm'n Hum. Rts. Res. 1997/29, available at 〈http:// unhchr.ch/html/menu4/chrres/1997.res/29.htm〉 (visited Apr. 26, 1999) (reaffirming that victims of grave violations of human rights should receive, in appropriate cases, restitution, compensation, and rehabilitation); Beyani, supra note 93, at 135; IAN BROWNLIE, PRINCIPLES OF INTERNATIONAL LAW 512-13 (4th ed. 1990) [hereinafter BROWNLIE, PRINCIPLES OF INTERNATIONAL LAW]; THEODOR MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY LAW 95-8 (1989). Note that States of asylum, forced to bear much of the burden of refugee flows, are also victims of the wrong committed by States responsible for creating refugee flows. For a discussion of the rights of States of asylum vis-a-vis States of origin, see, e.g., Beyani, supra note 95, at 131-32; Lee, supra note 85, at 566.
179. van Boven Report, supra note 93, ¶ 45. See also U.N. Comm'n Hum. Rts. Res. 1998/43, available at 〈http://www.unhchr.ch/html/menu4/chrres/1998.res/43.htm〉 (visited Apr. 26, 1999); U.N. Comm'n Hum. Rts. Res. 1997/29, available at 〈http:// unhchr.ch/html/menu4/chrres/1997.res/29.htm〉 (visited Apr. 26, 1999) (reaffirming that victims of grave violations of human rights should receive, in appropriate cases, restitution, compensation, and rehabilitation); Beyani, supra note 93, at 135; IAN BROWNLIE, PRINCIPLES OF INTERNATIONAL LAW 512-13 (4th ed. 1990) [hereinafter BROWNLIE, PRINCIPLES OF INTERNATIONAL LAW]; THEODOR MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY LAW 95-8 (1989). Note that States of asylum, forced to bear much of the burden of refugee flows, are also victims of the wrong committed by States responsible for creating refugee flows. For a discussion of the rights of States of asylum vis-a-vis States of origin, see, e.g., Beyani, supra note 95, at 131-32; Lee, supra note 85, at 566.
180. van Boven Report, supra note 93, ¶ 45. See also U.N. Comm'n Hum. Rts. Res. 1998/43, available at 〈http://www.unhchr.ch/html/menu4/chrres/1998.res/43.htm〉 (visited Apr. 26, 1999); U.N. Comm'n Hum. Rts. Res. 1997/29, available at 〈http:// unhchr.ch/html/menu4/chrres/1997.res/29.htm〉 (visited Apr. 26, 1999) (reaffirming that victims of grave violations of human rights should receive, in appropriate cases, restitution, compensation, and rehabilitation); Beyani, supra note 93, at 135; IAN BROWNLIE, PRINCIPLES OF INTERNATIONAL LAW 512-13 (4th ed. 1990) [hereinafter BROWNLIE, PRINCIPLES OF INTERNATIONAL LAW]; THEODOR MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY LAW 95-8 (1989). Note that States of asylum, forced to bear much of the burden of refugee flows, are also victims of the wrong committed by States responsible for creating refugee flows. For a discussion of the rights of States of asylum vis-a-vis States of origin, see, e.g., Beyani, supra note 95, at 131-32; Lee, supra note 85, at 566.
181. Such bodies include the Inter-American Court of Human Rights, the European Court of Human Rights, and the Human Rights Committee (HRC). The ICCPR created the HRC, a special body of independent experts to oversee the covenant's implementation. Fifty-one states have accepted the Optional Protocol to the ICCPR, under which the HRC is granted competence to consider communications from individual victims alleging violations of the ICCPR. Although the HRC is not a court with the power to issue judgments and it may only "forward its views" to the State and individual concerned, its consideration of hundreds of communications under the Optional Protocol has enabled it to interpret the ICCPR in a wide-variety of specific fact situatations. The HRC's decisions are published in its annual reports to the General Assembly. See Hurst Hannum, Human Rights, in THE UNITED NATIONS AND INTERNATIONAL LAW 131, 140-41 (Christopher C. Joyner ed., Cambridge 1997).
182. van Boven Report, supra note 93, ¶ 49. For a discussion of the case law, see id. ¶¶ 53-68. See also State Responsibility, supra note 91 (various papers discussing individual claims for reparations under ICCPR, CHR, and Inter-American Human Rights Court); Jo M. Pasqualucci, Victim Reparations in the Inter-American Human Rights System: A Critical Assessment of Current Practice and Procedure, 18 MICH. J. INT'L L. 1, 2-8 (1996).
183. van Boven Report, supra note 93, ¶ 49. For a discussion of the case law, see id. ¶¶ 53-68. See also State Responsibility, supra note 91 (various papers discussing individual claims for reparations under ICCPR, CHR, and Inter-American Human Rights Court); Jo M. Pasqualucci, Victim Reparations in the Inter-American Human Rights System: A Critical Assessment of Current Practice and Procedure, 18 MICH. J. INT'L L. 1, 2-8 (1996).
184. Article 1 of Protocol 1 provides that "[e]very natural or legal person is entitled to the peaceful enjoyment of his possessions." European Convention on Human Rights and Fundamental Freedoms, Mar. 20, 1952, 213 U.N.T.S. 262.
185. See Loizidou v. Turkey 26 Eur. Ct. H.R. at 2216 (1996); see also Beate Rudolf, International Decisions: Loizidou v. Turkey, 91 AM. J. INT'L L. 532 (1997).
186. See Loizidou v. Turkey 26 Eur. Ct. H.R. at 2216 (1996); see also Beate Rudolf, International Decisions: Loizidou v. Turkey, 91 AM. J. INT'L L. 532 (1997).
187. See Loizidou v. Turkey, 81 Eur. Ct. H.R. at 1807 (1998) (concluding that the "applicant was entitled to be fully compensated for loss of access to and control of her property, but not for the diminished value of that property due to the general political situation" and awarding 300,000 Cypriot Pounds (CYP) in pecuniary damages, CYP 20,000 in non-pecuniary damages to compensate for "the anguish and feelings of helplessness and frustration which the applicant must have experienced over the years in not being able to use her property as she saw fit," and CYP 137,084.83 for costs and expenses). Article 50 of the ECHR provides as follows: If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the . . . Convention, and if the internal laws of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party. Apr. 4, 1950, 213 U.N.T.S. 221.
188. See Meindersma-Part 2, supra note 20, at 638. The return to one's pre-war home is the preferred remedy in such a situation. See id. Principle Five of 1992 Declaration of Principles of International Law on Compensation to Refugees provides that a State that has committed an "internationally wrongful act" through the generation of refugees shall be required, as appropriate (a) to discontinue the act; (b) to apply remedies provided under the municipal law; (c) to restore the situation to that which existed prior to the act; (d) to pay compensation in the event of the impossibility of restoration of the pre-existing situation; and (e) to provide appropriate guarantees against the repetition or recurrence of the act. Cairo Declaration, supra note 97, at 158-59. The question as to the level of compensation that should be required in such situations is beyond the scope of this article.
189. See Meindersma-Part 2, supra note 20, at 638. The return to one's pre-war home is the preferred remedy in such a situation. See id. Principle Five of 1992 Declaration of Principles of International Law on Compensation to Refugees provides that a State that has committed an "internationally wrongful act" through the generation of refugees shall be required, as appropriate (a) to discontinue the act; (b) to apply remedies provided under the municipal law; (c) to restore the situation to that which existed prior to the act; (d) to pay compensation in the event of the impossibility of restoration of the pre-existing situation; and (e) to provide appropriate guarantees against the repetition or recurrence of the act. Cairo Declaration, supra note 97, at 158-59. The question as to the level of compensation that should be required in such situations is beyond the scope of this article.
190. For detailed accounts of the violence and terror that were perpetrated against one another by the three ethnic groups, see, for example, TADEUSZ MAZOWIECKI, THE SITUATION OF HUMAN RIGHTS IN THE TERRITORY OF THE FORMER YUGOSLAVIA (1992-1994).
191. See. e.g., S.C. Res. 941, U.N. SCOR, 49th Year, preamb., U.N. Doc. S/RES/941 (1994) (stressing that "practices of ethnic cleansing constitute a clear violation of humanitarian law"); S.C. Res. 859, U.N. SCOR, 48th Year, preamb., U.N. Doc. S/RES/ 859 (1993) (reaffirming unacceptability of practices of "ethnic cleansing"); S.C. Res. 836, U.N. SCOR, 48th Year, preamb., U.N. Doc. S/RES/836 (1993) (reaffirming that any practice of "ethnic cleansing" is unlawful and totally unacceptable); S.C. Res. 824, U.N. SCOR, 48th Year, preamb., U.N. Doc. S/RES/824 (1993) (reaffirming its condemnation of "ethnic cleansing"); S.C. Res. 820, U.N. SCOR, 48th Year, at ¶ 6, U.N. Doc. S/RES/820 (1993) (condemning the practice of "ethnic cleansing"); S.C. Res. 819, U.N. SCOR, 48th Year, at ¶ 7, U.N. Doc. S/RES/819 (1993) (reaffirming "its condemnation . . . of the practice of 'ethnic cleansing'"); S.C. Res. 787, U.N. SCOR, 47th Year, ¶¶ 2, 7, U.N. Doc. S/RES/787 (1992).
192. CERD, which reports to the U.N. General Assembly, was established to monitor compliance by states parties to the International Covenant on the Elimination of All Forms of Racial Discrimination [ICERD]. It is composed of 18 independent experts who meet twice a year in Geneva.
193. Report of the Committee on the Elimination of Racial Discrimination, U.N. GAOR, 50th Sess., Supp. No. 18, ¶ 219, U.N. Doc. A/50/18 (1995) [hereinafter CERD Report]. See also de Zayas, The Right to One's Homeland, supra note 15, at 281, 282. The UDHR is the source of many of the principles enunciated in the ICERD.
194. Report of the Committee on the Elimination of Racial Discrimination, U.N. GAOR, 50th Sess., Supp. No. 18, ¶ 219, U.N. Doc. A/50/18 (1995) [hereinafter CERD Report]. See also de Zayas, The Right to One's Homeland, supra note 15, at 281, 282. The UDHR is the source of many of the principles enunciated in the ICERD.
195. CERD Report, supra note 119, ¶ 26.
196. The Situation of Human Rights in the Territory of the Former Yugoslavia, ¶¶ 51, 52, U.N. Doc. A/47.666 (1992).
197. Id. ¶ 53.
198. Id. ¶ 7. 124. See Meindersma-Part 2, supra note 20, at 638.
199. Id. ¶ 7. 124. See Meindersma-Part 2, supra note 20, at 638.
200. Only 63.4% of the eligible voters went to the polls; most Serbs did not. Voting was rendered virtually impossible in the areas controlled by the Serbian Democratic Party (SDS), the Serbian nationalist party. See, e.g., WOODWARD, supra note 5, at 195-96; TIM JUDAH, THE SERBS 202-03 (1997); CONFERENCE ON SECURITY AND COOPERATION IN EUROPE, REFERENDUM ON INDEPENDENCE IN BOSNIA-HERZEGOVINA FEB. 29-MAR. 1 1992 23 (1992). On April 6, 1992, the European Community recognized the Republic of Bosnia and Herzegovina as an independent state. MALCOLM, BOSNIA: A SHORT HISTORY 234 (1996). The following month, Bosnia was granted membership in the U.N. General Assembly. WOODWARD, supra note 5, at 10.
201. Only 63.4% of the eligible voters went to the polls; most Serbs did not. Voting was rendered virtually impossible in the areas controlled by the Serbian Democratic Party (SDS), the Serbian nationalist party. See, e.g., WOODWARD, supra note 5, at 195-96; TIM JUDAH, THE SERBS 202-03 (1997); CONFERENCE ON SECURITY AND COOPERATION IN EUROPE, REFERENDUM ON INDEPENDENCE IN BOSNIA-HERZEGOVINA FEB. 29-MAR. 1 1992 23 (1992). On April 6, 1992, the European Community recognized the Republic of Bosnia and Herzegovina as an independent state. MALCOLM, BOSNIA: A SHORT HISTORY 234 (1996). The following month, Bosnia was granted membership in the U.N. General Assembly. WOODWARD, supra note 5, at 10.
202. Only 63.4% of the eligible voters went to the polls; most Serbs did not. Voting was rendered virtually impossible in the areas controlled by the Serbian Democratic Party (SDS), the Serbian nationalist party. See, e.g., WOODWARD, supra note 5, at 195-96; TIM JUDAH, THE SERBS 202-03 (1997); CONFERENCE ON SECURITY AND COOPERATION IN EUROPE, REFERENDUM ON INDEPENDENCE IN BOSNIA-HERZEGOVINA FEB. 29-MAR. 1 1992 23 (1992). On April 6, 1992, the European Community recognized the Republic of Bosnia and Herzegovina as an independent state. MALCOLM, BOSNIA: A SHORT HISTORY 234 (1996). The following month, Bosnia was granted membership in the U.N. General Assembly. WOODWARD, supra note 5, at 10.
203. Only 63.4% of the eligible voters went to the polls; most Serbs did not. Voting was rendered virtually impossible in the areas controlled by the Serbian Democratic Party (SDS), the Serbian nationalist party. See, e.g., WOODWARD, supra note 5, at 195-96; TIM JUDAH, THE SERBS 202-03 (1997); CONFERENCE ON SECURITY AND COOPERATION IN EUROPE, REFERENDUM ON INDEPENDENCE IN BOSNIA-HERZEGOVINA FEB. 29-MAR. 1 1992 23 (1992). On April 6, 1992, the European Community recognized the Republic of Bosnia and Herzegovina as an independent state. MALCOLM, BOSNIA: A SHORT HISTORY 234 (1996). The following month, Bosnia was granted membership in the U.N. General Assembly. WOODWARD, supra note 5, at 10.
204. Only 63.4% of the eligible voters went to the polls; most Serbs did not. Voting was rendered virtually impossible in the areas controlled by the Serbian Democratic Party (SDS), the Serbian nationalist party. See, e.g., WOODWARD, supra note 5, at 195-96; TIM JUDAH, THE SERBS 202-03 (1997); CONFERENCE ON SECURITY AND COOPERATION IN EUROPE, REFERENDUM ON INDEPENDENCE IN BOSNIA-HERZEGOVINA FEB. 29-MAR. 1 1992 23 (1992). On April 6, 1992, the European Community recognized the Republic of Bosnia and Herzegovina as an independent state. MALCOLM, BOSNIA: A SHORT HISTORY 234 (1996). The following month, Bosnia was granted membership in the U.N. General Assembly. WOODWARD, supra note 5, at 10.
205. There has been considerable debate regarding the nature of this war, i.e., whether it was an internal or international armed conflict. The trial chamber of the International Criminal Tribunal for the Former Yugoslavia, in an opinion and judgment of May 7, 1997, recognized that a state of international armed conflict existed in at least part of Bosnia because of the armed conflict between the Bosnian forces and the JNA, but determined that the nature of the conflict changed after May, 19, 1992, when the JNA troops were withdrawn. Since then, the Court concluded, an internal armed conflict, i.e., civil war, was being waged between the forces of the Republic of Bosnia and Herzegovina and the rump Serb republic, the RS. Prosecutor v. Tadic, Case IT-94-1-T (May, 7, 1997), excerpted in 36 I.L.M. 908, 922 (1997), summarized in Michael P. Scharf, Case note, 91 AM. J. INT'L L. 718 (1997). Although in early April 1992 Belgrade did call for the withdrawal of all JNA troops from Bosnia, a great part of the command of the JNA stayed in Bosnia as a Bosnian-Serb army. SILBER & LITTLE, supra note 6, at 222-24. See also Theodor Meron, Classification of Armed Conflict in the Former Yugoslavia: Nicaragua's Fallout, 92 AM. J. INT'L L. 236 (1998) (criticizing this aspect of the opinion).
206. There has been considerable debate regarding the nature of this war, i.e., whether it was an internal or international armed conflict. The trial chamber of the International Criminal Tribunal for the Former Yugoslavia, in an opinion and judgment of May 7, 1997, recognized that a state of international armed conflict existed in at least part of Bosnia because of the armed conflict between the Bosnian forces and the JNA, but determined that the nature of the conflict changed after May, 19, 1992, when the JNA troops were withdrawn. Since then, the Court concluded, an internal armed conflict, i.e., civil war, was being waged between the forces of the Republic of Bosnia and Herzegovina and the rump Serb republic, the RS. Prosecutor v. Tadic, Case IT-94-1-T (May, 7, 1997), excerpted in 36 I.L.M. 908, 922 (1997), summarized in Michael P. Scharf, Case note, 91 AM. J. INT'L L. 718 (1997). Although in early April 1992 Belgrade did call for the withdrawal of all JNA troops from Bosnia, a great part of the command of the JNA stayed in Bosnia as a Bosnian-Serb army. SILBER & LITTLE, supra note 6, at 222-24. See also Theodor Meron, Classification of Armed Conflict in the Former Yugoslavia: Nicaragua's Fallout, 92 AM. J. INT'L L. 236 (1998) (criticizing this aspect of the opinion).
207. There has been considerable debate regarding the nature of this war, i.e., whether it was an internal or international armed conflict. The trial chamber of the International Criminal Tribunal for the Former Yugoslavia, in an opinion and judgment of May 7, 1997, recognized that a state of international armed conflict existed in at least part of Bosnia because of the armed conflict between the Bosnian forces and the JNA, but determined that the nature of the conflict changed after May, 19, 1992, when the JNA troops were withdrawn. Since then, the Court concluded, an internal armed conflict, i.e., civil war, was being waged between the forces of the Republic of Bosnia and Herzegovina and the rump Serb republic, the RS. Prosecutor v. Tadic, Case IT-94-1-T (May, 7, 1997), excerpted in 36 I.L.M. 908, 922 (1997), summarized in Michael P. Scharf, Case note, 91 AM. J. INT'L L. 718 (1997). Although in early April 1992 Belgrade did call for the withdrawal of all JNA troops from Bosnia, a great part of the command of the JNA stayed in Bosnia as a Bosnian-Serb army. SILBER & LITTLE, supra note 6, at 222-24. See also Theodor Meron, Classification of Armed Conflict in the Former Yugoslavia: Nicaragua's Fallout, 92 AM. J. INT'L L. 236 (1998) (criticizing this aspect of the opinion).
208. There has been considerable debate regarding the nature of this war, i.e., whether it was an internal or international armed conflict. The trial chamber of the International Criminal Tribunal for the Former Yugoslavia, in an opinion and judgment of May 7, 1997, recognized that a state of international armed conflict existed in at least part of Bosnia because of the armed conflict between the Bosnian forces and the JNA, but determined that the nature of the conflict changed after May, 19, 1992, when the JNA troops were withdrawn. Since then, the Court concluded, an internal armed conflict, i.e., civil war, was being waged between the forces of the Republic of Bosnia and Herzegovina and the rump Serb republic, the RS. Prosecutor v. Tadic, Case IT-94-1-T (May, 7, 1997), excerpted in 36 I.L.M. 908, 922 (1997), summarized in Michael P. Scharf, Case note, 91 AM. J. INT'L L. 718 (1997). Although in early April 1992 Belgrade did call for the withdrawal of all JNA troops from Bosnia, a great part of the command of the JNA stayed in Bosnia as a Bosnian-Serb army. SILBER & LITTLE, supra note 6, at 222-24. See also Theodor Meron, Classification of Armed Conflict in the Former Yugoslavia: Nicaragua's Fallout, 92 AM. J. INT'L L. 236 (1998) (criticizing this aspect of the opinion).
209. Although they engaged in fierce fighting in 1993, in March 1994, the Bosnian-Croats and Bosniaks, under strong American pressure, signed the Washington Framework Agreement, which established a Muslim-Croat Federation, within the internationally recognized borders of Bosnia. See, e.g., Warren Bass, The Triage of Dayton, 77 FOR. AFFAIRS 95, 103 (1998); MARCUS TANNER, CROATIA: A NATION FORGED IN WAR 292 (1997); WOODWARD, supra note 5, at 314.
210. Although they engaged in fierce fighting in 1993, in March 1994, the Bosnian- Croats and Bosniaks, under strong American pressure, signed the Washington Framework Agreement, which established a Muslim-Croat Federation, within the internationally recognized borders of Bosnia. See, e.g., Warren Bass, The Triage of Dayton, 77 FOR. AFFAIRS 95, 103 (1998); MARCUS TANNER, CROATIA: A NATION FORGED IN WAR 292 (1997); WOODWARD, supra note 5, at 314.
211. Although they engaged in fierce fighting in 1993, in March 1994, the Bosnian- Croats and Bosniaks, under strong American pressure, signed the Washington Framework Agreement, which established a Muslim-Croat Federation, within the internationally recognized borders of Bosnia. See, e.g., Warren Bass, The Triage of Dayton, 77 FOR. AFFAIRS 95, 103 (1998); MARCUS TANNER, CROATIA: A NATION FORGED IN WAR 292 (1997); WOODWARD, supra note 5, at 314.
212. According to Article I.1 of the Constitution (Annex Four), "[t]he Republic of Bosnia and Herzegovina . . . shall continue its legal existence under international law as a state, with its internal structure modified as provided herein and with its present internationally recognized borders. It shall remain a Member State of the United Nations . . . ." DPA, supra note 8, Annex Four, art. I. The Constitution provides for two functioning levels of government: a central government, with its capital in Sarajevo, headed by a three-persons presidency that essentially consists of one member of each ethnic group; and the two regional Entities: the Croat-Muslim Federation and the Bosnian-Serb Republika Srpska.
213. Id.
214. Article I.3 of the Constitution provides that "Bosnia and Herzegovina shall consist of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska." DPA, supra note 8, art. I(3).
215. See UNFINISHED PEACE, supra note 28, at 101.
216. See Bass, supra note 127, at 102. See also CHUCK SUDETIC, BLOOD AND VENGANCE: ONE FAMILY'S STORY OF THE WAR IN BOSNIA 52 (1998) (noting that the DPA "left the Bosnian-Serb nationalists . . . the very thugs who had started the violence in the first place in de facto control" of half of Bosnia); HOLBROOKE, supra note 29, at 361 (discussing the ramifications of allowing Radovan Karadzic to keep the name Republika Srpska that he had invented in the early spring of 1992).
217. See Bass, supra note 127, at 102. See also CHUCK SUDETIC, BLOOD AND VENGANCE: ONE FAMILY'S STORY OF THE WAR IN BOSNIA 52 (1998) (noting that the DPA "left the Bosnian-Serb nationalists . . . the very thugs who had started the violence in the first place in de facto control" of half of Bosnia); HOLBROOKE, supra note 29, at 361 (discussing the ramifications of allowing Radovan Karadzic to keep the name Republika Srpska that he had invented in the early spring of 1992).
218. UNFINISHED PEACE, supra note 28, at 81.
219. See id. at 82. The hardline Bosnian-Croat HDZ (Croatian Democratic Union) continues to obstruct the return of Bosnian-Serbs and Bosniaks to their pre-war homes in the Croat dominated region of western Herzegovina. These are indicators, however, that this may change after the death of President Fudjman in December 1999.
220. In preparation for the then-Republic of Bosnia and Herzegovina's first free elections on November 9, 1990, the Serbs, Muslims, and Croats, the three main communities in the republic, each formed separate political parties: the Serbian Democratic Party (SDS), of which Radovan Karadzic was elected the first president, the Bosnian branch of the Croatian Democratic Union (HDZ), and the Muslim Party of Democratic Action (SDA). See SILBER & LITTLE, supra note 6, at 206-09. These nationalist parties captured a majority of the votes in the first post-war elections held in September 1996. The first three co-Presidents of Bosnia and Herzegovina were Alija Izetbegovic, head of the SDA, Momcilo Krajisnik, the RS Parliamentary Sepaker during the war and a member of the SDS, and Kresimir Zubak of the HDZ. The latter two members were elected despite having never disavowed a separate Serb and Croat state.
221. Richard Holbrooke commented about the first post-war elections held in September 1996 that chose the three person presidency and the national assembly, stating "[n]one of the winners was in favor of a truly multi-ethnic government. The election strengthened the very separatists who had started the war." HOLBROOKE, supra note 30, at 344.
222. See Mike O'Connor, Political Parties Opposed to Bosnia Peace Get Millions in Rent from NATO, N.Y TIMES, Oct. 13, 1998, at A10.
223. THE INTERNATIONAL LAW COMMISSION'S DRAFT ARTICLES ON STATE RESPONSIBILITY: PART I arts. 1-35, 144 (Shabtai Rosenne ed., 1991) [hereinafter Commentary].
224. See, e.g., RESTATEMENT, supra note 94, § 207, cmt. b (asserting that a State is "responsible for the conduct of any revolutionary regime that becomes the effective government").
225. See Draft Articles, supra note 89, art. 15(1) (stating that "[t]he act of an insurrectional movement which becomes the new government of a State shall be considered as an act of that State.").
226. See Commentary, supra note 138, at 144.
227. Id.
228. BROWNLIE, supra note 88, at 178.
229. Commentary, supra note 138, at 144. In fact, none of the States that submitted comments on the ILC's most recent Draft Articles on State Responsibility disagreed with the principle articulated in Article 15(1). The only recognized exception to this principle is when the insurrectional struggle "ends in victory for the pre-existing power . . . the insurrectional organization is dissolved, and only the established apparatus remains." Id. at 145, n.265. In such a case, the current state is not responsible for the acts of organs of the defeated movement, which ceases to exist, never having been part of the ruling government. See id.
230. BROWNLIE, supra note 88, at 178, quoting CLYDE EAGLETON, RESPONSIBILITY OF STATES IN INTERNATIONAL LAW 147 (1928). See also GEORG SCHWARZENBERGER, INTERNATIONAL LAW I 627-29 (3d ed. 1957); EDWIN M. BORCHARD, DIPLOMATIC PROTECTION OF CITIZENS ABROAD 241-42 (1915).
231. BROWNLIE, supra note 88, at 178, quoting CLYDE EAGLETON, RESPONSIBILITY OF STATES IN INTERNATIONAL LAW 147 (1928). See also GEORG SCHWARZENBERGER, INTERNATIONAL LAW I 627-29 (3d ed. 1957); EDWIN M. BORCHARD, DIPLOMATIC PROTECTION OF CITIZENS ABROAD 241-42 (1915).
232. BROWNLIE, supra note 88, at 178, quoting CLYDE EAGLETON, RESPONSIBILITY OF STATES IN INTERNATIONAL LAW 147 (1928). See also GEORG SCHWARZENBERGER, INTERNATIONAL LAW I 627-29 (3d ed. 1957); EDWIN M. BORCHARD, DIPLOMATIC PROTECTION OF CITIZENS ABROAD 241-42 (1915).
233. BROWNLIE, supra note 88, at 178, quoting CLYDE EAGLETON, RESPONSIBILITY OF STATES IN INTERNATIONAL LAW 147 (1928). See also GEORG SCHWARZENBERGER, INTERNATIONAL LAW I 627-29 (3d ed. 1957); EDWIN M. BORCHARD, DIPLOMATIC PROTECTION OF CITIZENS ABROAD 241-42 (1915).
234. See, e.g., Bolivia Railway Company Case, 9 REP. INT'L ARB. AWARDS 445 (1903). For a discussion of this and other decisions, as well as of the general consensus among international legal scholars in support of this principle, see 1975 Y.B. OF THE INT'L L. COMM'N v. II, at 102-05.
235. See, e.g., Bolivia Railway Company Case, 9 REP. INT'L ARB. AWARDS 445 (1903). For a discussion of this and other decisions, as well as of the general consensus among international legal scholars in support of this principle, see 1975 Y.B. OF THE INT'L L. COMM'N v. II, at 102-05.
236. BROWNLIE, supra note 88, at 178; MARJORIE M. WHITEMAN, 8 DIGEST OF INTERNATIONAL LAW 819 (1967) (noting U.S. support for this proposition). Professor Brownlie does, however, note that the legal logic of this principle is far from certain.
237. BROWNLIE, supra note 88, at 178; MARJORIE M. WHITEMAN, 8 DIGEST OF INTERNATIONAL LAW 819 (1967) (noting U.S. support for this proposition). Professor Brownlie does, however, note that the legal logic of this principle is far from certain.
238. See supra notes 67-68 and accompanying text.
239. DPA, supra note 8, Annex Seven, art. XIV(1) (author's emphasis).
240. The three signatories are the Republic of Bosnia and Herzegovina, the Federation, and the Republika Srpska. Article VII of the General Framework Agreement explicitly states that the Parties, i.e., the Republic of Bosnia and Herzegovina, the Republic of Croatia, and the Federal Republic of Yugoslavia, "agree to and shall comply fully with the provisions concerning . . . refugees and displaced persons as set forth in Chapter One of the Agreement at Annex 7." DPA, supra note 8, art. VII. Since the articles dealing with the establishment of the Fund appear in Chapter Two of Annex Seven, one could argue that the obligation to establish the Fund does not apply to them.
241. Article XIV(1) provides that the "Fund shall be replenished through the purchase, sale, lease and mortgage of real property which is the subject of claims before the Commission [CRPC]. It may also be replenished by direct payments from the Parties, or from contributions by States or international or nongovernmental organizations." DPA, supra note 8, Annex Seven, art. XIV(1).
242. Although there are three signatories to Annex Seven, this article addresses the liability of the national government, not those of the Entities. In doing so, it does not discuss the proportion of the financial burden for compensation that should fall on the Entity-level governments. The Entity governments are largely controlled by the same ethnic-based political parties that control the national government and were largely responsible for the "ethnic cleansing" during the nearly four year war. Thus, even if the three Annex Seven signatories shared the burden of providing the money necessary to jump-start the Fund, those responsible for the forcible mass dislocation that occurred during and in the aftermath of the brutal war would still be the ones compensating those refugees and displaced persons for property to which they are unable or choose not to return.
243. See, e.g., Garry, supra note 95, at 117; Benevisti & Samir, infra note 177, at 330 (asserting that "the principle that refugees are entitled to compensation for their lost property is generally gaining recognition"); Dowty, supra note 37, at 26. The refugees' right to compensation for non-property related injuries is beyond the scope of this article.
244. Neither the right to repossession of or compensation for property are included in the International Covenant of Civil and Political Rights (ICCPR). See ARTHUR HELTON, PROPERTY AS AN INTERNATIONAL HUMAN RIGHT: IMPLICATIONS FOR THE FORMER YUGOSLAVIA (1998) (copy on file with author).
245. Although General Assembly resolutions are generally non-binding on member states, they have "contributed to defining more clearly certain general principles of international law for styles parties and have frequently served as the genesis for subsequent multi-lateral treaties drafted and promulgated under U.N. auspices." Christopher Joyner, Conclusion: The U.N. as International Lawyer, THE UNITED NATIONS AND INTERNATIONAL LAW, supra note 110, at 432; see also Brownlie, Principles of International Law, supra note 109, at 107.
246. Although General Assembly resolutions are generally non-binding on member states, they have "contributed to defining more clearly certain general principles of international law for styles parties and have frequently served as the genesis for subsequent multi-lateral treaties drafted and promulgated under U.N. auspices." Christopher Joyner, Conclusion: The U.N. as International Lawyer, THE UNITED NATIONS AND INTERNATIONAL LAW, supra note 110, at 432; see also Brownlie, Principles of International Law, supra note 109, at 107.
247. Garry, supra note 95, at 117
248. See Robert Y. Jennings, Some International Law Aspects of the Refugee Law Question, 20 BRIT. Y.B. INT'L L. 98, 112 (1939).
249. G.A. Res. 194, U.N. GAOR, 3d Sess., ¶ 2, U.N. Doc. A/810 (1948).
250. U.N. GAOR Supp. (No. 11), U.N. Doc. A/648 (1948), at 17-18.
251. Id.
252. Luke T. Lee, The Preventive Approach to the Refugee Problem, 28 WILLIAMETTE L.R. 821, 829 (1992). See also Principle 7, Commentary ¶ 5, Draft Declaration of Principles of International Law on Compensation to Refugees and Countries of Asylum, reprinted in 63 I.L.A. 686 (1988) [hereinafter Draft Declaration]. George Tomeh, in an article he wrote while Permanent Representative of Syria to the United Nations, asserts that paragraph 11 of the resolution recognizes both a right of refugees to return to their homes and a right to compensation for those choosing not to return, and foresees implementation of these rights "under principles of international law or equity." George Tomeh, Legal Status of Arab-Refugees, in 1 THE ARAB-ISRAELI CONFLICT 687 (Moore ed., 1974). In criticizing this interpretation of the language regarding refugee return, some commentators have stated that the paragraph merely "recommends that the refugees 'should' be permitted to return," but does not recognize their "right" to do so. While they question whether "the reference to principles of international law or equity" applies to "return", they share the view that such language does apply to the right to compensation. Ruth Lapidoth, The Right of Return in International Law, with Special Reference to the Palestinian Refugees, 16 ISR. Y.B. HUM. RTS. 103, 116 (1987). See also Kurt Rene Radley, The Palestinian Refugees: The Right to Return in International Law, 72 AM. J. INT'L L. 586, 601 (1978).
253. Luke T. Lee, The Preventive Approach to the Refugee Problem, 28 WILLIAMETTE L.R. 821, 829 (1992). See also Principle 7, Commentary ¶ 5, Draft Declaration of Principles of International Law on Compensation to Refugees and Countries of Asylum, reprinted in 63 I.L.A. 686 (1988) [hereinafter Draft Declaration]. George Tomeh, in an article he wrote while Permanent Representative of Syria to the United Nations, asserts that paragraph 11 of the resolution recognizes both a right of refugees to return to their homes and a right to compensation for those choosing not to return, and foresees implementation of these rights "under principles of international law or equity." George Tomeh, Legal Status of Arab-Refugees, in 1 THE ARAB-ISRAELI CONFLICT 687 (Moore ed., 1974). In criticizing this interpretation of the language regarding refugee return, some commentators have stated that the paragraph merely "recommends that the refugees 'should' be permitted to return," but does not recognize their "right" to do so. While they question whether "the reference to principles of international law or equity" applies to "return", they share the view that such language does apply to the right to compensation. Ruth Lapidoth, The Right of Return in International Law, with Special Reference to the Palestinian Refugees, 16 ISR. Y.B. HUM. RTS. 103, 116 (1987). See also Kurt Rene Radley, The Palestinian Refugees: The Right to Return in International Law, 72 AM. J. INT'L L. 586, 601 (1978).
254. Luke T. Lee, The Preventive Approach to the Refugee Problem, 28 WILLIAMETTE L.R. 821, 829 (1992). See also Principle 7, Commentary ¶ 5, Draft Declaration of Principles of International Law on Compensation to Refugees and Countries of Asylum, reprinted in 63 I.L.A. 686 (1988) [hereinafter Draft Declaration]. George Tomeh, in an article he wrote while Permanent Representative of Syria to the United Nations, asserts that paragraph 11 of the resolution recognizes both a right of refugees to return to their homes and a right to compensation for those choosing not to return, and foresees implementation of these rights "under principles of international law or equity." George Tomeh, Legal Status of Arab-Refugees, in 1 THE ARAB-ISRAELI CONFLICT 687 (Moore ed., 1974). In criticizing this interpretation of the language regarding refugee return, some commentators have stated that the paragraph merely "recommends that the refugees 'should' be permitted to return," but does not recognize their "right" to do so. While they question whether "the reference to principles of international law or equity" applies to "return", they share the view that such language does apply to the right to compensation. Ruth Lapidoth, The Right of Return in International Law, with Special Reference to the Palestinian Refugees, 16 ISR. Y.B. HUM. RTS. 103, 116 (1987). See also Kurt Rene Radley, The Palestinian Refugees: The Right to Return in International Law, 72 AM. J. INT'L L. 586, 601 (1978).
255. Luke T. Lee, The Preventive Approach to the Refugee Problem, 28 WILLIAMETTE L.R. 821, 829 (1992). See also Principle 7, Commentary ¶ 5, Draft Declaration of Principles of International Law on Compensation to Refugees and Countries of Asylum, reprinted in 63 I.L.A. 686 (1988) [hereinafter Draft Declaration]. George Tomeh, in an article he wrote while Permanent Representative of Syria to the United Nations, asserts that paragraph 11 of the resolution recognizes both a right of refugees to return to their homes and a right to compensation for those choosing not to return, and foresees implementation of these rights "under principles of international law or equity." George Tomeh, Legal Status of Arab-Refugees, in 1 THE ARAB-ISRAELI CONFLICT 687 (Moore ed., 1974). In criticizing this interpretation of the language regarding refugee return, some commentators have stated that the paragraph merely "recommends that the refugees 'should' be permitted to return," but does not recognize their "right" to do so. While they question whether "the reference to principles of international law or equity" applies to "return", they share the view that such language does apply to the right to compensation. Ruth Lapidoth, The Right of Return in International Law, with Special Reference to the Palestinian Refugees, 16 ISR. Y.B. HUM. RTS. 103, 116 (1987). See also Kurt Rene Radley, The Palestinian Refugees: The Right to Return in International Law, 72 AM. J. INT'L L. 586, 601 (1978).
256. Lee, supra note 85, at 534-35.
257. Kathleen Lawand, The Right to Return of Palestinians in International Law, 8 INT'L J. REFUGEE L. 532, 545 (1996). For a detailed review of the numerous General Assembly resolutions reaffirming Res. 194 (III), paragraph 11, see Rex J. Zedalis, Right to Return: A Closer Look, 6 GEO. IMMIG. L.J. 499, 508-14 (1992); John Quigley, Family Reunion and the Right to Return to the Occupied Territory, 6 GLO. IMMIG. L.J. 223, 239-40 (1992); W.T. Mallison & S. Mallison, An International Law Analysis of the Major U.N. Resolutions Concerning the Palestine Question, U.N. Doc. ST/SG/SER.F/4 (1979).
258. Kathleen Lawand, The Right to Return of Palestinians in International Law, 8 INT'L J. REFUGEE L. 532, 545 (1996). For a detailed review of the numerous General Assembly resolutions reaffirming Res. 194 (III), paragraph 11, see Rex J. Zedalis, Right to Return: A Closer Look, 6 GEO. IMMIG. L.J. 499, 508-14 (1992); John Quigley, Family Reunion and the Right to Return to the Occupied Territory, 6 GLO. IMMIG. L.J. 223, 239-40 (1992); W.T. Mallison & S. Mallison, An International Law Analysis of the Major U.N. Resolutions Concerning the Palestine Question, U.N. Doc. ST/SG/SER.F/4 (1979).
259. Kathleen Lawand, The Right to Return of Palestinians in International Law, 8 INT'L J. REFUGEE L. 532, 545 (1996). For a detailed review of the numerous General Assembly resolutions reaffirming Res. 194 (III), paragraph 11, see Rex J. Zedalis, Right to Return: A Closer Look, 6 GEO. IMMIG. L.J. 499, 508-14 (1992); John Quigley, Family Reunion and the Right to Return to the Occupied Territory, 6 GLO. IMMIG. L.J. 223, 239-40 (1992); W.T. Mallison & S. Mallison, An International Law Analysis of the Major U.N. Resolutions Concerning the Palestine Question, U.N. Doc. ST/SG/SER.F/4 (1979).
260. Kathleen Lawand, The Right to Return of Palestinians in International Law, 8 INT'L J. REFUGEE L. 532, 545 (1996). For a detailed review of the numerous General Assembly resolutions reaffirming Res. 194 (III), paragraph 11, see Rex J. Zedalis, Right to Return: A Closer Look, 6 GEO. IMMIG. L.J. 499, 508-14 (1992); John Quigley, Family Reunion and the Right to Return to the Occupied Territory, 6 GLO. IMMIG. L.J. 223, 239-40 (1992); W.T. Mallison & S. Mallison, An International Law Analysis of the Major U.N. Resolutions Concerning the Palestine Question, U.N. Doc. ST/SG/SER.F/4 (1979).
261. In each of these repeated reaffirmations of Resolution 194 (III), paragraph 11, by focusing on compensation only for one's "property," the General Assembly has refrained from passing judgment on whether countries of origin are obliged to compensate refugees for other losses such as deaths, personal injuries, wrongful arrest, detention or imprisonment, and emotional and mental anguish. Given the General Assembly's emphasis on property losses, refugees seeking compensation for such losses may have a stronger legal argument to make than those seeking compensation for other losses. Moreover, since property losses are often easier to value, they are more easily compensated. See Lee, supra note 85, at 546. Further, the repeated reaffirmation of the resolution, by a near-unanimous vote, constitutes evidence of the opinions of governments in the widest forum for the expression of such views. See BROWNLIE, PRINCIPLES OF INTERNATIONAL LAW, supra note 109, at 14; see also SHAW, supra note 88, at 94.
262. Article 13(1)(a) of the United Nations Charter states that the "General Assembly shall initiate studies and make recommendations for the purpose of: (a) . . . encouraging the progressive development of international law and its codification." U.N. CHARTER art. 13(1)(a). The work of the International Law Commission and the adoption by the General Assembly of numerous declarations, e.g., the Universal Declaration of Human Rights and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, are good examples of such activities. See, e.g., Lee, supra note 161, at 829; Draft Declaration, supra note 161, at 686. See also Hurst Hannum, Human Rights, in THE UNITED NATIONS AND INTERNATIONAL LAW 145 (Christopher Joyner ed., 1997) (noting that adoption by the General Assembly and other bodies of formally non-binding declarations, statements of principles and ordinary resolutions can have an impact on the creation of international law). For a thorough discussion of the legal significance of the re-citation of General Assembly resolutions, see, for example, Blaine Sloan, General Assembly Resolutions Revisited (Forty Years After), 58 BRIT. Y.B. INT'L L. 39, 74-76 (1987); Samuel A. Bleicher, The Legal Significance of Re-Citation of General Assembly Resolutions, 63 AM. J. INT'L L. 444 (1969).
263. Article 13(1)(a) of the United Nations Charter states that the "General Assembly shall initiate studies and make recommendations for the purpose of: (a) . . . encouraging the progressive development of international law and its codification." U.N. CHARTER art. 13(1)(a). The work of the International Law Commission and the adoption by the General Assembly of numerous declarations, e.g., the Universal Declaration of Human Rights and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, are good examples of such activities. See, e.g., Lee, supra note 161, at 829; Draft Declaration, supra note 161, at 686. See also Hurst Hannum, Human Rights, in THE UNITED NATIONS AND INTERNATIONAL LAW 145 (Christopher Joyner ed., 1997) (noting that adoption by the General Assembly and other bodies of formally non-binding declarations, statements of principles and ordinary resolutions can have an impact on the creation of international law). For a thorough discussion of the legal significance of the re-citation of General Assembly resolutions, see, for example, Blaine Sloan, General Assembly Resolutions Revisited (Forty Years After), 58 BRIT. Y.B. INT'L L. 39, 74-76 (1987); Samuel A. Bleicher, The Legal Significance of Re-Citation of General Assembly Resolutions, 63 AM. J. INT'L L. 444 (1969).
264. Article 13(1)(a) of the United Nations Charter states that the "General Assembly shall initiate studies and make recommendations for the purpose of: (a) . . . encouraging the progressive development of international law and its codification." U.N. CHARTER art. 13(1)(a). The work of the International Law Commission and the adoption by the General Assembly of numerous declarations, e.g., the Universal Declaration of Human Rights and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, are good examples of such activities. See, e.g., Lee, supra note 161, at 829; Draft Declaration, supra note 161, at 686. See also Hurst Hannum, Human Rights, in THE UNITED NATIONS AND INTERNATIONAL LAW 145 (Christopher Joyner ed., 1997) (noting that adoption by the General Assembly and other bodies of formally non-binding declarations, statements of principles and ordinary resolutions can have an impact on the creation of international law). For a thorough discussion of the legal significance of the re-citation of General Assembly resolutions, see, for example, Blaine Sloan, General Assembly Resolutions Revisited (Forty Years After), 58 BRIT. Y.B. INT'L L. 39, 74-76 (1987); Samuel A. Bleicher, The Legal Significance of Re-Citation of General Assembly Resolutions, 63 AM. J. INT'L L. 444 (1969).
265. See G.A. Res. 36/148, U.N. Doc. A/RES/36/148 (1981).
266. Id. ¶ 3. For a general discussion of Palestinian refugee and international law, see, e.g., ALEX TAKKENBERG, THE STATUS OF PALESTINIAN REFUGEES UNDER INTERNATIONAL LAW (1998).
267. U.N. GAOR, Special Political Comm. (10th mtg.) at 11-12 U.N. Doc. A/SPC/40/ SR.10 (1985).
268. Lee, supra note 85, at 566 (adding that such countries should also pay compensation to countries of asylum to shift the refugee burden off of the latter and onto the countries responsible for the crises).
269. See id.
270. Report of the Group of Governmental Experts on International Cooperation to Avert New Flows of Refugees, U.N. Doc. A/41/324 (1986), ¶ 66(f).
271. See G.A. Res. 41/70, U.N. GAOR, 41st Sess., U.N. Doc. A/RES/41/70 (1986).
272. See Cairo Declaration, supra note 97, Principles 1, 4. Principle 4 states that a "State is obligated to compensate its own nationals forced to leave their homes to the same extent as it is obligated by international law to compensate an alien." Id. at 4. See supra Part III for a discussion of these principles.
273. See Beyani, supra note 94, at 134, n.15 (noting that the Cairo Declaration, although not legally binding, "is persuasive and may have an indirect legal effect in the context of the specific application of State responsibility as general principles of law").
274. See Tomuschat, supra note 106, at 74 (writing that "[a]lthough the legal reasoning may be developed to [support a right to compensation] without any apparent flaws, one cannot ignore the fact that there is little practice confirming the existence of a duty to pay financial compensation"); James C. Hathaway, Reconceiving Refugee Law as Human Rights Protection, 4 J. REFUGEE STUDIES 113, 119 (1993).
275. GUY GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW 221-22 (1996).
276. See Eyal Benvenisti & Eyal Zamir, Private Claims to Property Rights in the Future Israeli-Palestinian Settlement, 89 AM. J. INT'L L. 294, 321 (1995). See also Convention Respecting Reciprocal Emigration, Nov. 27, 1919, Gr.-Bulg., 1 L.N.T.S. 68. This Convention implements Article 56(2) of the Convention Concerning the Exchange of Greek and Turkish Populations, Nov. 27, 1919, reprinted in 2 THE TREATIES OF PEACE, 1919-1923, at 1036 (1924).
277. Treaty of Peace, July 24, 1923, 28 L.N.T.S. 11. This Treaty was a reaction to the significant presence of Muslim refugees in Greece in the early 1920s. Turkish forces had attacked Asia Minor, Smyrna, and Eastern Thrace, areas with large Greek populations. Greece and the Allies "suffered severe defeats and as a result of the military disaster in Smyrna in September 1922, by the end of the Greco-Turkish war, hundreds of thousands of Greeks were either massacred or forcibly uprooted from their homelands and compelled to flee to Greece." Christa Meindersma, Population Exchanges: International Law and State Practice - Part 1, 9 INT'L J. REFUGEE L. 335, 338 (1997).
278. ROGER COHEN, HEARTS GROWN BRUTAL: SAGAS OF SARAJEVO 62 (1998).
279. See id. Article 1 states that "[a]s from May 1, 1923, there shall take place a compulsory exchange of Turkish nationals of the Greek orthodox religion established in Turkish territory, and of Greek nationals of the Moslem religion established in Greek territory; these persons shall not return to live in Turkey or Greece respectively without the authorization of the Turkish Government or the Greek Government respectively." Treaty of Peace, supra note 178, art. 1.
280. See STEPHEN P. LADAS, THE EXCHANGE OF MINORITIES: BULGARIA, GREECE AND TURKEY, 335-588.
281. Convention Greco-Turque, signed on June 10, 1930, reprinted in LADAS, supra note 181, at 817. See also Benvenisti & Zamir, supra note 177, at 330; Meindusma I, supra note 178, at 344-45.
282. See id. at 323; RUSSELL BRINES, THE INDO-PAKISTANI CONFLICT 18-48 (1968); CHAUDHRI MUHAMMAD ALI, THE EMERGENCE OF PAKISTAN (1967). Ali estimates that nine million people relocated to West Pakistan. Id. at 274.
283. See id. at 323; RUSSELL BRINES, THE INDO-PAKISTANI CONFLICT 18-48 (1968); CHAUDHRI MUHAMMAD ALI, THE EMERGENCE OF PAKISTAN (1967). Ali estimates that nine million people relocated to West Pakistan. Id. at 274.
284. See Benvenisti & Zamir, supra note 177, at 323 n.164; ALI, supra note 181, at 267-70. Benvenisti and Zamir write: Legally, the property left by refugees was administered in each province by a custodian of evacuee property. This system stemmed from an Indian-Pakistani agreement to protect the property of refugees, expressed in a joint declaration of the Prime Ministers of India and Pakistan issued on September 3, 1947, which stated that "both governments will take steps to look after the property of refugees and restore it to its rightful owners;" . . . The system was based on the assumption that the relocation of populations might be a temporary phenomenon, and that many would eventually return to their homes. As time passed, and return seemed more and more unlikely, the attitude of the Governments changed, and "the refugee's title to property he had left in the other Dominion became thin and shadowy and finally disappeared." Benvenisti & Zamir, supra note 177, at 323 n.164 (quoting ALI, supra note 183, at 268).
285. See ALI, supra note 183, at 270 (discussing Inter-dominion agreement in January 1949).
286. Id.
287. See G.A. Res. 194(III), U.N. GAOR, 3d Sess., at 21, U.N. Doc. A/810 (1948); see also 1948 U.N.Y.B. 176 (appointing Turkey, France, and the U.S. members of the CCP). In addition to enunciating the twin rights to return and receive compensation, Resolution 194 (III) of December 11, 1948, paragraph 11 also instructed "the Conciliation Commission to facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation." G.A. Res. 194 (III), U.N. GAOR, 3d Sess., at 24, U.N. Doc. A/810 (1948). The young government of Israel stated it was "prepared to pay compensation for land abandoned in Israel by Arabs who have fled" but only as part of a general peace settlement. The Right of Return of the Palestinian People, U.N. Doc. ST/SG/SER.F/2 (1978), at 27, quoting U.N. GAOR, 16th Sess., U.N. Doc. A/AC.25/W.81/Rev.2, ¶¶ 39, 46.
288. During the period between December 1947 and September 1949, as a result of the Arab-Israeli conflict following the U.N. partition of Palestine, a major exodus of Palestinian refugees took place. It is estimated that between 600,000 and 700,000, Palestinians left, ran away, or were expelled from the territory on which the State of Israel was established. This flight, which involved roughly half of the population of the territory, left some 370 villages abandoned. See Benvenisti & Zamir, supra note 177, at 297. Estimates of the number dislocated differ; according to the U.N., some 700,000 Palestinians became refugees. See SHLOMO GAZIT, THE PALESTINIAN REFUGEE PROBLEM 2 (1995). Some independent researchers, however, think that the number was closer to 539,000. See TERRENCE PRITTIE & BERNARD DINEEN, THE DOUBLE EXODUS: A STUDY OF ARAB AND JEWISH REFUGEES IN THE MIDDLE EAST 8-9 (1974).
289. During the period between December 1947 and September 1949, as a result of the Arab-Israeli conflict following the U.N. partition of Palestine, a major exodus of Palestinian refugees took place. It is estimated that between 600,000 and 700,000, Palestinians left, ran away, or were expelled from the territory on which the State of Israel was established. This flight, which involved roughly half of the population of the territory, left some 370 villages abandoned. See Benvenisti & Zamir, supra note 177, at 297. Estimates of the number dislocated differ; according to the U.N., some 700,000 Palestinians became refugees. See SHLOMO GAZIT, THE PALESTINIAN REFUGEE PROBLEM 2 (1995). Some independent researchers, however, think that the number was closer to 539,000. See TERRENCE PRITTIE & BERNARD DINEEN, THE DOUBLE EXODUS: A STUDY OF ARAB AND JEWISH REFUGEES IN THE MIDDLE EAST 8-9 (1974).
290. Progress Report of the United Nations Conciliation Commission for Palestine, U.N. GAOR, 6th Sess., Supp. No. 18, Ann. A, at 4, U.N. Doc. A/1985 (1951) [hereinafter Progress Report].
291. Benvenisti & Zamir, supra note 177, at 336. See also Progress Report, supra note 189, at 6.
292. Progress Report, supra note 189, at 8.
293. The issues affecting valuation were: that Arab property had been abandoned following the Arab aggression of 1948; that Israel's ability to pay was affected by the Arab boycott and the need to absorb Jewish refugees from Arab countries; that Jewish property had been abandoned in the West Bank and Gaza Strip during the 1948 war; and that Jewish property had been confiscated in other Arab countries. See id. at 8, 18-19.
294. See Progress Report, supra note 189, App. II, at 22.
295. See id.
296. The CCP estimated the value of lost Palestinian property at 1.22 million British pounds, or approximately $1.85 billion. The Arab League countered with its own estimate twenty times greater - some $35 billion in 1990 dollars. Rex Brynen, The Funding of Palestinian Refugee Compensation 1, FOFOGNET Digest (Mar. 1996) (visited Apr. 26, 1999) 〈http://www.arts.mcgill.ca/MEPP/PrrN/papers/brynen1.html〉.
297. See supra notes 161-62 and accompanying text. Analysts of the Arab-Israeli conflict have almost universally viewed compensation for lost property as a central and necessary feature of a final settlement of the refugee issue. In addition to these examples of the failure to implement provisions regarding compensation in agreements following or precipitating mass population transfers, the InterAmerican Commission's recommendation that Nicaragua pay adequate compensation to the Miskito Indians for their loss of property following their mass flight across the border into Honduras has been completely ignored, i.e., the Government of Nicaragua has never paid the Miskitos. Interview with Milton Castillo, Staff Attorney, Inter-American Commission on Human Rights, Washington, D.C. (Dec. 4, 1998); ORGANIZATION OF AMERICAN STATES, REPORT ON THE SITUATION OF HUMAN RIGHTS OF A SEGMENT OF THE NICARAGUAN POPULATION OF MISKITO ORIGIN AND RESOLUTION ON THE FRIENDLY SETTLEMENT PROCEDURE REGARDING THE HUMAN RIGHTS SITUATION OF A SEGMENT OF THE NICARAGUAN POPULATION OF MISKITO ORIGIN, 21 (1983). The Inter-American Commission on Human Rights recommended that the Nicaraguan Government not only had to assist in the resettlement of displaced persons who wished to return to their former lands, but also had to provide them with adequate compensation for their property. The Commission found Government of Nicaragua was responsible for the mass flight of Miskitos, some 8000 of whom were subsequently settled in refugee camps in Honduras. See id. at 29-31.
298. In July 1974, following 11 years of civil strife of Cyprus, Turkish military forces occupied the northern third of the island. As a result of the Turkish invasion and the ensuing atrocities, some 180,000 Greek Cypriots fled to the Greek controlled southern part of the island. An estimated 45,000 Turkish Cypriots living in the south moved to the Turkish controlled territory, settling into homes vacated by Greek Cypriot owners. For an overview fo the conflict, see, for example, ZAIM M. NECATIGIL, THE CYPRUS QUESTION AND THE TURKISH POSITION IN INTERNATIONAL LAW (2d ed. 1996); PETER LOZIOS, THE HEART GROWN BITTER: A CHRONICLE OF CYPRIOT WAR REFUGEES (1981).
299. In July 1974, following 11 years of civil strife of Cyprus, Turkish military forces occupied the northern third of the island. As a result of the Turkish invasion and the ensuing atrocities, some 180,000 Greek Cypriots fled to the Greek controlled southern part of the island. An estimated 45,000 Turkish Cypriots living in the south moved to the Turkish controlled territory, settling into homes vacated by Greek Cypriot owners. For an overview fo the conflict, see, for example, ZAIM M. NECATIGIL, THE CYPRUS QUESTION AND THE TURKISH POSITION IN INTERNATIONAL LAW (2d ed. 1996); PETER LOZIOS, THE HEART GROWN BITTER: A CHRONICLE OF CYPRIOT WAR REFUGEES (1981).
300. Report of the Secretary General on his Mission of Good Offices in Cyprus, U.N. Doc. S/24472, Annex, at 9-22 (1992) [hereinafter "Set of Ideas"].
301. The Set of Ideas, in fact, provides a structure for settling the displaced persons' compensation claims, in which one can see the seeds of the framework of DPA Annex Seven, Chapter II: 76. Each community [i.e., Greek and Turkish] will establish an agency to deal with all matters related to displaced persons. 77. The ownership of the property of displaced persons, in respect of which those persons seek compensation, will be transferred to the ownership of the community in which the property is located. To this end, all titles to properties will be exchanged on a global communal basis between the two agencies at the 1974 [time of the Turkish invasion] value plus inflation. Displaced persons will be compensated by the agency of their community from funds obtained from the sale of the properties transferred to the agency, or through the exchange of property. The shortfall in funds necessary for compensation will be covered by the federal government from a compensation fund. . . . The Department of State lawyers used the Framework Agreement's provisions concerning compensation for property of displaced persons who do not wish to return to their homes as a model when drafting Annex Seven of the DPA, which enunciates the right of refugees and displaced persons to receive compensation for their property, and establishes the CRPC.
302. The agreements that led to the most significant population movements of the 20th century neglected to address the issue of compensation. The Potsdam Declaration, issued by the Allies at the end of the second world war, provided for the transfer, "to be effected in an orderly and humane manner," to Germany of the remaining 15 million Germans in Czechoslovakia, Poland, Hungary, and Austria. Protocol of Proceedings of the Berlin (Potsdam) Conference, Aug. 2, 1945, art XIII, 3 Bevans 1207 (this provision is redesignated art. XII in the final version of the protocol). These Germans were expelled from areas where their ancestors had been living for 700 years. For a review of these events, see, for example, ALFRED DE ZAYAS, A TERRIBLE REVENGE: THE ETHNIC CLEANSING OF THE EAST EUROPEAN GERMANS, 1944-1950 (1994); ALFRED DE ZAYAS, NEMESIS AT POTSDAM (3d ed. 1988) [hereinafter DE ZAYAS, NEMESIS]. Other transfer agreements, involving smaller numbers of people, were implemented in parts of Central and Eastern Europe following the redrawing of borders after the war. See EUGENE KULISHER, EUROPE ON THE MOVE 282-88 (1948). The Declaration failed to deal with the return or compensation of the refugees. According to one estimate, after the Second World War, West Germany absorbed and rehabilitated some 5,978,000 displaced persons from Poland and 1,891,000 from Czechoslovakia. See JULIUS STONE, ISRAEL AND PALESTINE 22 n.27 (1981). The Germans transferred lost title to the property that they had left behind. According to one commentator, the issue of compensating these Germans was raised by the Allies, but no formal commitment was made, apart from the general promise in the Potsdam Declaration for "orderly and humane" transfers. DE ZAYAS, NEMESIS, supra, at 103. In the early 1990s, following the collapse of the East and Central European communist regimes, the Czech Republic rejected the claim to compensation for Sudeten German property and this difficult issue, one of many resulting from the post-war population transfers, remains unresolved. See Benevisti & Zamir, supra note 177, at 322, n.153. The Czechoslovak-German Treaty on Good Neighborly Relations and Friendly Cooperation of February 27, 1992 did not address this issue. See id. at 322-23.
303. The agreements that led to the most significant population movements of the 20th century neglected to address the issue of compensation. The Potsdam Declaration, issued by the Allies at the end of the second world war, provided for the transfer, "to be effected in an orderly and humane manner," to Germany of the remaining 15 million Germans in Czechoslovakia, Poland, Hungary, and Austria. Protocol of Proceedings of the Berlin (Potsdam) Conference, Aug. 2, 1945, art XIII, 3 Bevans 1207 (this provision is redesignated art. XII in the final version of the protocol). These Germans were expelled from areas where their ancestors had been living for 700 years. For a review of these events, see, for example, ALFRED DE ZAYAS, A TERRIBLE REVENGE: THE ETHNIC CLEANSING OF THE EAST EUROPEAN GERMANS, 1944-1950 (1994); ALFRED DE ZAYAS, NEMESIS AT POTSDAM (3d ed. 1988) [hereinafter DE ZAYAS, NEMESIS]. Other transfer agreements, involving smaller numbers of people, were implemented in parts of Central and Eastern Europe following the redrawing of borders after the war. See EUGENE KULISHER, EUROPE ON THE MOVE 282-88 (1948). The Declaration failed to deal with the return or compensation of the refugees. According to one estimate, after the Second World War, West Germany absorbed and rehabilitated some 5,978,000 displaced persons from Poland and 1,891,000 from Czechoslovakia. See JULIUS STONE, ISRAEL AND PALESTINE 22 n.27 (1981). The Germans transferred lost title to the property that they had left behind. According to one commentator, the issue of compensating these Germans was raised by the Allies, but no formal commitment was made, apart from the general promise in the Potsdam Declaration for "orderly and humane" transfers. DE ZAYAS, NEMESIS, supra, at 103. In the early 1990s, following the collapse of the East and Central European communist regimes, the Czech Republic rejected the claim to compensation for Sudeten German property and this difficult issue, one of many resulting from the post-war population transfers, remains unresolved. See Benevisti & Zamir, supra note 177, at 322, n.153. The Czechoslovak-German Treaty on Good Neighborly Relations and Friendly Cooperation of February 27, 1992 did not address this issue. See id. at 322-23.
304. The agreements that led to the most significant population movements of the 20th century neglected to address the issue of compensation. The Potsdam Declaration, issued by the Allies at the end of the second world war, provided for the transfer, "to be effected in an orderly and humane manner," to Germany of the remaining 15 million Germans in Czechoslovakia, Poland, Hungary, and Austria. Protocol of Proceedings of the Berlin (Potsdam) Conference, Aug. 2, 1945, art XIII, 3 Bevans 1207 (this provision is redesignated art. XII in the final version of the protocol). These Germans were expelled from areas where their ancestors had been living for 700 years. For a review of these events, see, for example, ALFRED DE ZAYAS, A TERRIBLE REVENGE: THE ETHNIC CLEANSING OF THE EAST EUROPEAN GERMANS, 1944-1950 (1994); ALFRED DE ZAYAS, NEMESIS AT POTSDAM (3d ed. 1988) [hereinafter DE ZAYAS, NEMESIS]. Other transfer agreements, involving smaller numbers of people, were implemented in parts of Central and Eastern Europe following the redrawing of borders after the war. See EUGENE KULISHER, EUROPE ON THE MOVE 282-88 (1948). The Declaration failed to deal with the return or compensation of the refugees. According to one estimate, after the Second World War, West Germany absorbed and rehabilitated some 5,978,000 displaced persons from Poland and 1,891,000 from Czechoslovakia. See JULIUS STONE, ISRAEL AND PALESTINE 22 n.27 (1981). The Germans transferred lost title to the property that they had left behind. According to one commentator, the issue of compensating these Germans was raised by the Allies, but no formal commitment was made, apart from the general promise in the Potsdam Declaration for "orderly and humane" transfers. DE ZAYAS, NEMESIS, supra, at 103. In the early 1990s, following the collapse of the East and Central European communist regimes, the Czech Republic rejected the claim to compensation for Sudeten German property and this difficult issue, one of many resulting from the post-war population transfers, remains unresolved. See Benevisti & Zamir, supra note 177, at 322, n.153. The Czechoslovak-German Treaty on Good Neighborly Relations and Friendly Cooperation of February 27, 1992 did not address this issue. See id. at 322-23.
305. See German Restitution for National Socialist Crimes (last modified Oct. 21, 1999) 〈http://www.germany-info.org/newcontent/index_gic.htm〉.
306. For a thorough discussion of the different mechanisms the FRG Government used to compensate the victims of Nazi persecution, see, for example, Kurt Schwerin, German Compensation for Victims of Nazi Persecution, 67 Nw. U. L. REV. 479 (1972); for a discussion of the restitution and compensation for property taken by the U.S.S.R. and the German Democratic Republic, see, for example, Annette D. Elinger, Comment, Expropriation and Compensation: Claims to Property in East Germany in Light of German Unification, 6 EMORY INT'L L. REV. 215 (1992); Peter E. Quint, The Constitutional Law of German Unification, 50 MD. L. REV. 475 (1991); Dorothy Ames Jeffress, Note, Resolving Rival Claims on East German Property upon German Unification, 101 YALE L.J. 527 (1991).
307. For a thorough discussion of the different mechanisms the FRG Government used to compensate the victims of Nazi persecution, see, for example, Kurt Schwerin, German Compensation for Victims of Nazi Persecution, 67 Nw. U. L. REV. 479 (1972); for a discussion of the restitution and compensation for property taken by the U.S.S.R. and the German Democratic Republic, see, for example, Annette D. Elinger, Comment, Expropriation and Compensation: Claims to Property in East Germany in Light of German Unification, 6 EMORY INT'L L. REV. 215 (1992); Peter E. Quint, The Constitutional Law of German Unification, 50 MD. L. REV. 475 (1991); Dorothy Ames Jeffress, Note, Resolving Rival Claims on East German Property upon German Unification, 101 YALE L.J. 527 (1991).
308. For a thorough discussion of the different mechanisms the FRG Government used to compensate the victims of Nazi persecution, see, for example, Kurt Schwerin, German Compensation for Victims of Nazi Persecution, 67 Nw. U. L. REV. 479 (1972); for a discussion of the restitution and compensation for property taken by the U.S.S.R. and the German Democratic Republic, see, for example, Annette D. Elinger, Comment, Expropriation and Compensation: Claims to Property in East Germany in Light of German Unification, 6 EMORY INT'L L. REV. 215 (1992); Peter E. Quint, The Constitutional Law of German Unification, 50 MD. L. REV. 475 (1991); Dorothy Ames Jeffress, Note, Resolving Rival Claims on East German Property upon German Unification, 101 YALE L.J. 527 (1991).
309. For a thorough discussion of the different mechanisms the FRG Government used to compensate the victims of Nazi persecution, see, for example, Kurt Schwerin, German Compensation for Victims of Nazi Persecution, 67 Nw. U. L. REV. 479 (1972); for a discussion of the restitution and compensation for property taken by the U.S.S.R. and the German Democratic Republic, see, for example, Annette D. Elinger, Comment, Expropriation and Compensation: Claims to Property in East Germany in Light of German Unification, 6 EMORY INT'L L. REV. 215 (1992); Peter E. Quint, The Constitutional Law of German Unification, 50 MD. L. REV. 475 (1991); Dorothy Ames Jeffress, Note, Resolving Rival Claims on East German Property upon German Unification, 101 YALE L.J. 527 (1991).
310. Schwerin, supra note 202, at 523.
311. Payam Akhavan, 20 HUM. RIGHTS Q. 737, 775 (1998)
312. See HARRY STEINER, HUMAN RIGHTS PROGRAM & WORLD PEACE FOUNDATION, TRUTH COMMISSION: A COMPARATIVE ASSESSMENT 70-71 (1997) (visited Apr. 26, 1999) 〈http:// www.law.harvard.edu/Programs/HRP/Publications/truth3.html〉.
313. GOODWIN-GILL, supra note 176, at 221.
314. Since 1951, the number of refugees, largely the result of ethnically motivated conflicts, has grown rapidly from 1.2 million to a total of 13.2 million in 1996, with an equally large increase in the number of internally displaced persons. Ms. Sadako Ogata, United Nations Commissioner for Refugees, Statement at the 53d Session of the U.N. Commission on Human Rights (Apr. 1, 1997), in 9 INT'L J. REFUGEE L. 528, 530 (1997). The further development of this right and corresponding obligation of the State of origin would only have a deterrent effect in a State where there is an identifiable government that can be held responsible for the refugees fleeing from that territory. Thus, while it might have had an impact in Kosovo, where Slobodan Milosevic, the authoritarian President of the Federal Republic of Yugoslavia, and his military police bear responsibility for the massive refugee flows of this past year, it would not have had an impact in preventing the recent mass dislocation that has affected Sierra Leone, where there has been a complete collapse of the State.