By R. Dule Vicovac
Oxford Journal of Human Rights Practice
This Practice Note is the third in a continuing series of personal reflections on human rights practice today. This series, Practice in the First Person, aims to provide occasional snapshots of the life and work of contemporary practitioners provided by activists and advocates working around the globe. R. Dule Vicovac is a lawyer who has worked in the Balkans for over twelve years. He has been a legal expert for the past three years in European Union (EU)-funded projects supporting internally displaced persons (IDPs) from Kosovo. He was also a lawyer with the United Nations in Kosovo for eight years, working to facilitate access for IDPs. He writes here about his experience and lessons learned in working to provide legal aid to a population whose situation remains unresolved 14 years after the cessation of armed conflict.
internally displaced persons Kosovo legal aid property restitution Serbia
‘There is no greater sorrow on earth than the loss of one’s native land.’
— Euripides, 431 BC
When the dust settles after a conflict
Many people who track and engage with violent conflicts around the world breathe a sigh of relief when they hear that the fighting has stopped and the conflict has ended. Media outlets move on to the other issues, as there is a general belief that once the guns go silent the conflict is over and people will get back to their normal lives. Since we don’t hear about the conflict and the plight of the population, we assume that things are getting better. Unfortunately that is never the case for most of the people living in these post-conflict countries. The situation for vulnerable groups can arguably be significantly worse after an armed conflict than it was before, and in many cases during, the actual conflict.
For many, the actual hardship begins after a conflict has concluded and during the transitional process before and after a new government takes over. Post-conflict countries typically experience periods of lawlessness, where rights are violated by both the new government and non-government actors. The process of displaced people returning to their homes is obstructed by illegal occupations by others, arbitrary arrests, arbitrary dismissal from jobs, destruction of property, and expropriation by the new government or military.
As justice systems are slowly reconstructed, resources are severely limited and legal assistance is available only from international organizations and donors. Without free legal assistance, many needy people would be left without recourse and would be forced to fend for themselves with little chance of success. The inability to resolve their problems would likely result in their further displacement abroad as refugees in Europe or North America, as has happened to millions of people in the aftermath of previous conflicts that we had thought were long over.
My own experience stems from providing legal aid to displaced persons from the contested territory of Kosovo,1 and the illustrations and citations given in this article reflect the actual challenges of proving legal aid to this particular group. It is important to point out, however, that the issues, obstacles and challenges are often similar in post-conflict settings around the world (for example, Libya, Bosnia, Afghanistan, Sudan, Croatia, Palestine, and Egypt, to name a few), as are the methodologies used to address them.
The Kosovo context is perhaps one of the best illustrations for understanding post-conflict legal assistance to displaced groups. It is a conflict that officially ended in 1999, but has resulted in a displaced population2 of about a quarter of a million people (United Nations (UN) High Commissioner for Refugees (UNHCR), 2012), who to this day cannot return home despite continuous efforts by the international community to provide legal assistance and oversight.3 As stated above, this is the case for most post-conflict societies, but citing each one would distract attention from the focus here on highlighting the challenges of providing legal aid following an armed conflict.
The provision of legal aid in a post-conflict setting
Legal aid is universally regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial. The provision of legal aid to internally displaced persons (IDPs) in a post-conflict setting is arguably one of the most challenging forms of legal representation in which a lawyer can be engaged.
Like other types of legal aid programmes, lawyers representing the displaced must deal with an enormous number of cases involving clients who have limited resources and have faced injustice. Unlike traditional legal aid programmes for other populations, legal aid for IDPs has many unique challenges.
The profile of the post-conflict client
Imagine having clients who have legal problems in a neighbouring province, territory or state where they originally come from. Your clients, along with a quarter of a million other people, were driven from their homes by force over 12 years ago during an armed conflict. After the conflict one particular ethnic group in that territory has declared victory and regards the territory as an independent country, which the rest of the country doesn’t recognize. It is important to note the difficulty of displaced persons, particularly internally displaced persons and those refugees who have not been able to resolve their displacement. Since the end of the conflict your clients remain in exile, living in a camp or in some other unsustainable situation. Viewed from such a perspective, this situation has all the characteristics of a frozen conflict.
The homes of your clients have been destroyed, illegally occupied or even, in some cases, fraudulently sold to a third party. As a lawyer, you are asked by the clients to help them resolve their displacement by getting them restitution – be it evicting an illegal occupant from their home; nullifying a fraudulent property transaction of their home to a third party, so they can move back; or compensation for their destroyed home from the authorities in charge of the territory at the time of destruction, in order that they can move somewhere else (US Department of State, 2011).
In many cases the clients will come into the office seeking assistance in gathering property ownership documents, initiating court proceedings in courts or administrative bodies, or simply asking you to explain to them the process involved in restoring their rights.
The legal assistance you give to a client could be as simple as explaining what agency they need to contact to request personal documents, or what documents they would need to apply for to obtain benefits, or how to collect a judgment. This would be the provision of basic legal information and can often be done orally. Legal assistance can include assisting a client in drafting a claim, letter, application and/or preparing the documentation as a package. The client is still representing themselves, but the preparation of the material ensures that they are well prepared. Legal representation is formally representing the client before courts and administrative bodies – a much more complicated process, as explained below, requiring a power of attorney detailing exactly the type of assistance to be provided.
The courts and other institutions are between six and nine hours away by car – and there can be delays ranging from 20 minutes to three hours on the boundary entering the territory where your client is originally from. There are no flights connecting the rest of the country to that territory. You cannot send claims to court by mail directly from your office, as the mail system does not work due to the ongoing political dispute. On top of these obstacles there’s the occasional protest or violent incident that may prevent you from entering the territory to represent your client.
Driving a vehicle with licence plates identifying the town or region where your office is located to the place from which your client originates and was displaced is sometimes risky, as it can potentially make you a target for violence (US Department of State, 2009). It doesn’t help that most judges in the place where your client is displaced from either don’t know your language or refuse to speak it, which slows the process down, even though this language is one of the official languages of the territory (Organization for Security and Cooperation in Europe (OSCE), 2008a).
Frequently, courts and property and civil registration authorities fail to consider the difficulties that displaced persons face, and charge them fees for filing claims or requesting documents needed in order seek return or restitution (OSCE, 2012). In most cases the displaced would never be able to pay these fees unless they were paid for by legal aid programmes.
Confusion over the applicable law
There is also the challenge of the law and legal system found in many post-conflict situations, where the legislation derives from a mixture of different sources: 1. laws promulgated before the conflict; 2. regulations created by UN or other authorities who had administered the territory; 3. laws proclaimed by the new government or ethnic group in power; and 4. traditional tribal laws not codified but which often hold more influence than the official laws. Most of these laws overlap each other and whichever of them is determined to be valid depends on who is the deciding authority. In short, no one is clear on what the applicable law is any more (European Commission, 2009; OSCE, 2009a, 2009b) and the famous words of Aaron Burr often come to mind – that ‘law is whatever is boldly asserted and plausibly maintained’.
Getting a competent local judge is often a gamble, as many are subject to threats and, intimidation by local thugs who have connections to those who have – or who themselves have – occupied the homes or businesses of displaced persons (OSCE, 2010; European Union, 2009), while other judges are under investigation for corruption (Advocacy and Legal Advice Center, 2009; European Union, 2011, 2012). It goes without saying that there is a serious risk of bias against your client (OSCE, 2002), as over 95 per cent of judges are from an ethnic group that was in armed conflict with your client’s ethnic group. This in no way suggests that all judges are biased, but given that this is a post-conflict environment the possibility of bias is much greater following any conflict than it generally is in civil society. The likelihood of bias between warring groups following any conflict is natural, and is something that will take time to overcome.
If you manage to get one of the few foreign judges, appointed by the United Nations or other international authority, there is still a risk of bias, as most, if not all, of his/her local support staff belong to the nationality of the group that was at war with your client’s people and is likely still involved in a territorial dispute. To top it off, the foreign judge now lives in that territory and has by now made close connections with that very same community over time (Moss, 2009). The foreign judge often does not speak the language of your client so all submissions and proceedings need to be translated into a different language and rely on the skills of interpreters. Foreign judges often move in and out of mission quickly. As a result, many have only a basic understanding of the local law and need to review all translated material from the beginning. Translation often results in the meaning of arguments becoming lost in the process. Many of these judges leave the mission and your client’s case in the middle of trial – subsequently to be taken up by new foreign judges. The new foreign judges often end up relying on the advice of their local support staff (and remember here the reality that they belong to the ethnic group that was at war with your client’s community).
Addressing quasi-judicial bodies for your client
Finding out what institution (for restitution of property rights or reconstruction of homes) to submit your client’s claims to is not always an easy task, as there are a number of bodies that have been created to deal with matters that are normally decided by courts.4 Many of these institutions are staffed by foreigners who do not speak the language of you or your client, and if you choose to exercise your right to submit forms in the language of your client be prepared to wait in a very long line for translations to be completed (OSCE, 2008b).
A client received a decision by an international panel confirming his property right on his home in 2006, and was given the keys to his property. He never returned to his property due to security concerns. A few months later, he was informed by a neighbour that his property was once again illegally occupied. He informed the panel of the re-occupation and was told that the issue is now out of their mandate and he must now file a complaint with the local court and go through a court procedure.5
It usually takes some years to receive a decision from the court or other institution deciding your client’s case. If the ruling is in your client’s favour you will still have to spend a great amount of time and energy in getting an execution of that decision, which is often difficult depending on who you get in the land registry, police or executive clerks with whom you are in contact (OSCE, 2009a; OSCE, 2009b; European Commission, 2009). Remember, those police and court staff also all belong to the ethnic group that was at war with your client’s community and lack motivation to take action which may help your client return to their home. Your client also runs the real risk of their property immediately being reoccupied illegally and having to go through the whole court procedure again from the start (Parliamentary Assembly of the Council of Europe, 2007), as the police will refuse to act without a new court order.
A client worked for a socially-owned enterprise and received an occupancy right to an apartment in 1998. He later purchased the property in January 1999. He was driven from his home in June 1999 and the property was subsequently illegally occupied. He filed a claim for the property with an international panel in 2001. The illegal occupant also filed a claim for the property, stating that he lived in the apartment until 1992 and was discriminatorily evicted.
The panel ruled that both the client and the respondent had a right to the property, as the illegal occupant had lost the property as a result of discrimination. It awarded possession of the flat to the illegal occupant, with the requirement to pay a certain value for the property, and ordered that the client be paid an amount in lieu of occupation, without saying who would pay. The occupant has not paid anything as required under the order, nor has any amount been paid to the client.6
In some cases, the United Nations or some other body that was the transitional authority in the territory has ordered compensation or some other remedial measure for your client. The problem is that no authority, either local or international, has created a separate fund or designated a budget line from which to withdraw funds to pay monetary compensation, and has not even named in their decision who is actually responsible for paying the compensation to your client (OSCE, 2011).
A significant number of your cases are claims that would normally have a chance of success. However, in this post-conflict setting, they are filed against international bodies that have diplomatic immunity and often fail simply on those grounds (OSCE, 2007). One of the most frustrating challenges is that the United Nations will not pay compensation to IDPs in most cases, under General Assembly resolution 52/247,7 even when their own human rights body orders that compensation be paid to your client.8
Remember: your client is homeless and displaced during this process
If your client has to appeal to a higher instance court, then the whole process will take many more years, putting additional pressure on your client who is living with family in a run-down collective centre or a homeless shelter. Your client’s children are growing up, making new friends and their old neighbours have all sold their properties years ago
The likelihood of your client going back to their town or village, where they lived prior to the conflict, shrinks as time goes by, and the leaders in the new self-proclaimed country where your client is originally from know this, as does everyone else. The prospect of your client going back to a territory where they will be second class citizens is obviously discouraging. Even when you manage to win a case and get the client’s property returned, a new hurdle often turns up – such as being handed a utility or property tax bill for the past decade, while the property was illegally occupied. Your client is understandably frustrated, as it has been over a decade with no improvement in their situation. They suffer from depression, post-traumatic stress, and a number of other post-conflict conditions of persons whose lives have been ruined by conflict and displacement.
High-level negotiations have been ongoing for a considerable time, overseen by foreign mediators, which discuss issues like university diplomas and licence plates, but the issue of resolving the displacement or return of homes has not even been tabled yet.
All this sounds challenging when dealing with just a handful of cases. Now imagine having a workload of over 2,000 cases and rising, with about half a dozen legal aid officers in a project for which the funding lasts for a little more than a year. After that you cannot provide legal aid to your clients any more. These are the challenges that the EU-funded and other legal aid projects in Serbia have faced as part of their regular day-to-day operations in providing legal assistance to persons displaced from Kosovo. There remain approximately a quarter of a million Serbians, Roma, Croats, Gorani and other non-Albanians who are displaced from the territory of Kosovo (UNHCR, 2008; OSCE, undated), and the resources available to provide them with assistance are limited to a handful of donor-funded projects.
The same problems are being faced in most post-conflict zones all over the world. Overcoming these obstacles requires the lawyers to be extremely creative, knowledgeable and flexible. Interacting with clients has required patience, empathy and understanding. The situation on the ground has frequently changed – requiring the lawyers to keep abreast of the daily security and political situation so as to ensure staff safety when travelling to courts or other institutions.
Despite these challenges there has been some success in providing legal assistance to people displaced following conflicts. In some cases people get their homes back, in most others they sell them and move somewhere where they feel more secure, with access to employment and services. For the lawyer, there can be some satisfaction that you’ve contributed to enabling these people to get on with their lives and putting an end to the conflict, at least one family at a time. This also serves as motivation to continue your efforts for the remaining masses who continue to be displaced.
Lesson learned: your role as a legal representative and advocate
As a lawyer representing clients in a post-conflict environment you become acutely aware of challenges that you and your clients face in seeking justice. As mentioned earlier, there are many obstacles that you need to overcome and often you need to step outside of the traditional legal process in order to do so. Many of the methods below have proved to have been effective in implementing change.
It’s important to directly meet with the international judges, prosecutors and court staff working in the region so that you can inform them of the challenges that the displaced clients face. Many of them are mandated to help develop the capacity of the local judiciary and will certainly try to lead by example. It’s a good idea to cite precedential case law, legislation and policy (such as the Pinheiro Principles)9 from international tribunals or human rights bodies before these courts, as they usually have a deeper appreciation of this than domestic authorities. This has sometimes had a positive effect. International judges have at times ordered a waiver of court fees or have even expedited proceedings.
Being a lawyer also means being an advocate. This involves pointing out the deficiencies in the system as broadly as possible. Initially, this should be in meetings with local bodies in charge of the justice system and judicial/prosecutorial associations. They may not be aware of the difficulties faced by the displaced, as they are rarely in contact with these groups as much as they should be. In my experience, however, this has seldom proved to be effective on its own and has required the next step described below.
In a post-conflict environment there are usually many other key stakeholders active in the region: the local ombudsperson; international organizations like the OSCE, European Union, Council of Europe, UN agencies; international non-governmental human rights organizations; the media; and most importantly, donors. Before meeting with them it is important to prepare in-depth reports citing real examples that you and your clients face. Also, find a way to explain things in a way that is of interest from their standpoint; for example, many IDPs will end up applying for refugee status in the donor countries, if their displacement is not resolved.
This will encourage them to address these issues with their respective beneficiary governments and can bring about change. Presenting the reports during meetings or at coordinating round tables with all key stakeholders helps to raise the issue and coordinate efforts. Writing articles in prestigious journals helps to draw these challenges to the attention of the general public, and provides helpful suggestions to other lawyers and human rights experts providing legal assistance in other post-conflict regions of the world.
I am immensely grateful to Dr Brian Phillips and this journal’s anonymous reviewers for their insightful comments in the earlier drafts. Many thanks to John Piletich, of the UN Mission in Kosovo (UNMIK), for his constructive critique of the first draft. Also to the great team of lawyers who worked with me in the Judicial Integration Section (Andrey Antonov, Leanne Ho, Kevin Drolet, Zoran Popovic and Scott Niblock) in UNMIK in tirelessly finding creative ways for advocating and facilitating access for vulnerable ethnic groups in Kosovo.
?* R. Dule Vicovac has worked in the Balkans as a lawyer since August 2000, primarily working to facilitate access to justice and restitution for internally displaced persons (IDPs).
?1 All references to Kosovo in this article are done without prejudice to status and are done within the context of United Nations (UN) Security Council resolution 1244, adopted on 19 June 1999, which in its preamble referred to the people of Kosovo enjoying substantial autonomy within the Federal Republic of Yugoslavia.
?2 Predominantly ethnic Serbians, Romani, Croatians, Gorani and others.
?3 The UN Mission in Kosovo was appointed with legal authority in Kosovo under UN Security Council resolution 1244 in 1999 and transferred a great deal of its justice component to the EU Rule of Law Mission (EULEX) in late 2008.
?4 For example, the Housing and Property Directorate/Kosovo Property Agency, Kosovo Trust Agency.
?5 Example of typical cases encountered by the author.
?6 Example of typical cases encountered by the author.
?7 On temporal and financial limitations to third-party liability of the United Nations resulting or arising from peacekeeping operations (adopted 26 June 1998) http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/52/247.
?8 See Response by the Special Representative of the Secretary-General, http://www.unmikonline.org/hrap/Eng/Cases%20Eng/DC_38-08_SRSG_Decision.docx, in the Milogoric case (Case 038/38) following a decision by the UNMIK Human Rights Advisory Panel, http://www.unmikonline.org/hrap/Eng/Pages/default.aspx.
?9 UN Principles on Housing and Property Restitution for Refugees and Displaced Persons, adopted without a vote on 11 August 2005 in resolution 2005/21 by the UN Sub-Commission on Protection and Promotion of Human Rights, Geneva.
© The Author (2013). Published by Oxford University Press. All rights reserved.
? Advocacy and Legal Advice Center, Kosovo. 2009. Corruption Cases Report. http://www.kdi-kosova.org/publications/Raporti_Vjetor_2009_Eng.pdf.
? European Commission. 2009. Kosovo under UNSCR 1244/99 2009 Progress Report. SEC (2009) 1340. http://ec.europa.eu/enlargement/pdf/key_documents/2009/ks_rapport_2009_en.pdf.
? European Union Rule of Law Mission in Kosovo. 2009. EULEX statement – Deliberations are confidential. Press release. 6 October. http://www.eulex-kosovo.eu/en/pressreleases/0026.php.
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