Manual for Sustainable Return

Part III - Selected Policy Framework Documents - UNMIK Concept Paperon the Right to Sustainable Return

1. INTRODUCTION

This concept paper aims at laying out the basic principles that should guide UNMIK's approach to the returns process of internally displaced persons (IDP) and refugees. The paper does not attempt to provide a detailed operational plan for organised returns nor does it undertake to describe in full the operational response to spontaneous returns. The principles contained herein apply equally to all returns whether spontaneous or assisted.

Given that the returns process differs from region to region, each Regional Administration will, based on the approach spelled out in this paper, develop a regional implementation plan. Because returns are not a linear process, these regional plans will always be working-documents. However, the core principles guiding the returns process in Kosovo will remain the same.

As UNMIK's approach to returns emphasises the individual in the process, this paper recommends a rights-based approach. Accordingly, the guiding principles proposed are based upon international human rights and humanitarian standards and have been developed in consultation with UNHCR.

2. OBJECTIVES

Returns and integration are key mid-term priorities for UNMIK. Security conditions for minorities continue to improve and freedom of movement has gradually increased. KFOR and UNMIK Police are shifting to a flexible, threat assessment-based approach in order to achieve the gradual dismantling of protected enclaves, and to promote local-level integration and reconciliation. With the beginning of these important and promising developments and with the successful establishment of a multi-ethnic
government, there are emerging opportunities for returns. As a result, returns are at the heart of the Kosovo political agenda.

A unified mission-wide approach is needed to achieve breakthroughs in minority returns during the summer and autumn of 2002 to effect a change in climate and to build momentum for more significant numbers of returns during 2003 and 2004.
It should be stressed, however, that there is no time limit on the right to return. Returns are not a politically driven process but primarily dependent upon the choice of the individual to come back. This principle of individual decision is enshrined both in the right to return and in human rights principles in general.

UNMIK, in partnership with UNHCR and other key actors, must act by facilitating the returns process and creating the conditions conducive for the sustainability of this process. This implies a two-pronged approach whereby UNMIK and its partners will:

Such an approach will be guided by a respect for fundamental human rights principles, which can be best characterised as the right to sustainable return. This concept, in turn, implies a series of guiding principles for the different actors involved in the implementation of the returns and integration process.

UNMIK will continue to welcome Belgrade's general involvement in the returns process, being the host area authority of the majority of Kosovo IDPs. It must be stressed, however, that any involvement will be guided by the principles announced herein to avoid politicising the returns process and to ensure that the rights of the displaced are given primacy.

Returns in greater numbers can only happen if effective mechanisms are in place for minorities to be integrated into the structures of Kosovo society. Active advocacy and support for returns and integration of minorities by all political and community leaders, especially by elected local officials, are an important benchmark for the development of Kosovo society.

The basic principles for returns are set out in the Statement of Principles, which was agreed within UNMIK, as well as with UNHCR and KFOR, and endorsed by the IAC in 2001 (Annex A). Key concepts in this statement are the notion of voluntary, individual choice and sustainability. These concepts manifest themselves in the right to sustainable return. Building upon this rights-based approach to the returns process, UNMIK should be guided by the following core operational principles:

Right to Return

- The right to return applies equally to members of all communities regardless of their ethnicity, cultural, religious or linguistic belonging.

- All returns must be voluntary based upon a free and informed choice by the individual.

- The priority is to support returns to the places of origin.

- In general the concept of relocation, including proposals for clusters of new settlements, is not conducive to the long-term goal of promoting a multi-ethnic society in Kosovo, and will not be endorsed by UNMIK.

- Strategically or state motivated returns are not in the best interest of the returnees as they are likely to backfire on them by increasing their isolation and undermining their freedom of movement. Therefore, the selection of return locations must be based on the expressed wishes of IDPs to return to their places of origin, rather than on political considerations.

- There can be no political or other conditionalities placed on returns by the receiving communities. Returns cannot be linked or made contingent upon the resolution of political, social or humanitarian issues. Likewise, return of one community cannot be conditioned upon reciprocal return of another community.

- While it may be understandable that Western host countries continue the gradual repatriation of members of the majority population to Kosovo, they will be asked to refrain from forced returns of minorities. Host countries will be encouraged to develop reintegration packages that will contribute to the sustainability of voluntary returns.

Sustainability

- Sustainability presupposes the individual rights to access public and social services. In the Kosovo context these rights require that minority communities and returnees have equal access to education (in their own language whenever possible), to health care and medical services, social security or poverty-assistance payments, and public utilities.

- Creation of sustainability will require the active involvement of the Government and its Ministries, particularly those institutions that provide access to the relevant services. The Government has recognised the necessity for supporting the returns process and indicated that it intends to take on
this obligation in its policy programme that will be launched soon. Accordingly, the Government will need to set aside sufficient funds within their budgetary allowances to guarantee the extension of these services to minority communities and returnees.

- Just as it is essential in the short term to guarantee returning minorities access to social assistance schemes, it is equally crucial for their long-term sustainability and development to have fair and equal employment opportunities in the public and private sector. UNMIK and the governmental
authorities have the responsibility to ensure equitable representation of all communities in the public sector and provide effective remedies for discrimination both in the workplace and in the hiring process.

- Another key aspect of the right to sustainable development is an individual's right to private property. This right manifests itself not only in the basic right to shelter, but also in the need for the government to provide effective remedies for the unlawful deprivation of property. As many displaced minorities have had their homes illegally occupied by members of the majority community, UNMIK will ensure the effective functioning of the HPD mechanisms for filing claims, resolving property disputes and ensuring the expeditious return of the property concerned to its rightful owner.

- An important aspect of property rights under international humanitarian standards is the provision of adequate reconstruction assistance that would allow potentially vulnerable returnees to begin rebuilding destroyed or damaged homes. Assistance of this type is needed for those minorities whose homes have been damaged or destroyed.

- Fundamental to the full enjoyment of these rights and the degree to which minority communities can integrate into and participate in society is their freedom of movement. UNMIK and KFOR will undertake all necessary efforts to ensure liberty of movement for all returnees and communities in Kosovo.

- In order to ensure the sustainability of freedom of movement, however, it is vital that the majority community rejects violence and the tactics of intimidation that frequently restrict minorities' ability to move freely. The Government and all levels of political and community leaders must also work
with the majority community in returns locations to create an enabling social and political environment for the returnees.

4. PROCESS

As an integrated and unified approach to the returns process is likely to provide more confidence among potential returnees, active involvement and cooperation are required not only of UNHCR, UNMIK Pillars, the regional and municipal administrations, UNMIK Police and KPS, KFOR, the international agencies and NGOs, but also representatives from the majority and minority communities.

Additionally, the multi-ethnic government and the creation of two key positions for Koalicija Povratak, an Inter-Ministerial Coordinator on Returns in the Office of the Prime Minister and a Senior Adviser on Returns in the Office of the SRSG, will make of an integrated and inclusive strategy possible. The PISG at all levels must actively engage the majority community where returns take place in order to facilitate integration and reconciliation. These efforts should actively be supported by UNMIK. While full reconciliation cannot take place in the absence of accountability for past crimes, first steps can be taken to facilitate serious dialogues at the local level. Such initiatives should be the precursor to returns and then accompany the process along its course.

As sustainable returns are a bottom-up process starting with the expressed wishes of the IDPs UNMIK, in cooperation with UNHCR, must develop a clear picture of the intentions of potential returnees through increased engagement and direct contact with the IDP Associations and the IDPs themselves. Based on these findings, the initial planning of organised returns will begin at the local level in the Municipal and Regional Working Groups on Returns. These coordination and planning bodies report to the Task Force on Returns (TFR), which is chaired by the SRSG at the central level. The TFR has the authority to approve recommended returns projects and allocate resources accordingly.

As a principle, donor funding should be prioritised to support minority returns and integration projects and follow the returnees. The latter will require flexibility in the planning and resource allocation.

5. CONCLUSION

The role of UNMIK or any governmental authority is neither to mandate return locations nor to dictate to IDPs and refugees how and when they may return, but to facilitate the improvement of conditions so that IDPs and refugees have the opportunity to exercise the individual decision to return.

Regardless of whether IDPs and refugees decide to return to Kosovo or to integrate in their place of refuge, the process itself must ensure that the rights of the individual are respected and that they have the choice to come back to their homes in dignity. This rights-based approach provides a formula to make certain that the returns process in Kosovo meets those standards. In the end, the principles outlined here help ensure that those individuals that do return are able to safely and sustainably remain here.

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