THE IMPLANTATION OF TURKISH SETTLERS IN NORTHERN CYPRUS

By Professor Alfred de Zayas

The implantation of Turkish settlers in Northern Cyprus raises many issues of international law, humanitarian law and human rights law, issues that we can hardly pretend to examine in a brief article.

The factual and legal situation concerning the Turkish invasion of Northern Cyprus in 1974, the expulsion of 180,000 Greek-Cypriots from their homes and the implantation of 120,000 Turkish settlers is their place is reasonably clear:

1. The Turkish invasion entailed the crime of aggression, as it violated both the UN Charter and the Nuremberg principles.
2. The expulsion of 180,000 Greek Cypriots constituted a war crime and a crime against humanity – within the meaning of the Nuremberg principles, the 1998 statute of the International Criminal Court and the 1949 Geneva Convention IV
3. The implantation of 120,000 Turkish settlers in Northern Cyprus constituted a criminal attempt at changing the demography of Cyprus
4. Turkish settlers have, of course, basis human rights under the International Covenant on Civil and Political Rights and under the European Convention on Human Rights and Fundamental Freedoms, but they have no claim in international law to continued residence in Cyprus
5. Following the end of Turkish occupation in Northern Cyprus, the most durable solution would be the gradual and orderly repatriation of a yet to be determined number of settlers, a task which could be facilitated by the United Nations High Commissioner for Refugees and the International Organization on Migration.
6. Bearing in mind that collective expulsions are incompatible with Protocol 4 to the European Convention on Human Rights, individual status determination would have to be carried out, and the human rights to family and home would have to be balanced against the rights of the expelled Greek-Cypriots to return to their homes and property.

After these rather obvious remarks, I should add that international law is not mathematics – if it were, we would not need lawyers and judges. And, in any event, norms of domestic or international law, are never identical with their enforcement. Thus, many judgments of the ECHR, particularly the judgment of 10 May 2001, still await implementation, so too the relevant resolutions of the Security Council, the General Assembly, the UN Commission on Human Rights and the UN Sub-Commission on Promotion and Protection of Human Rights.

I propose to structure this talk into four sections:
- the norms
- the procedures
- the remedies
- the possibilities of enforcement

NORMS

As far as the applicable norms, let me briefly review the principal sources of hard law:

1. The Nuremberg trials established precedents still valid today concerning the illegality of aggressive war, the illegality of expulsions and the illegality of demographic manipulations . The Nazis were condemned for the supreme crime of aggression, but also for the expulsion of hundreds of thousands of Poles from Western Poland and for the implantation of German settlers in the occupied Polish territories. (One of the German settlers, by the way, was the current President of Germany, Horst Koehler, born 1942 in a village near Lodz. His family fled West in the summer of 1944.) It is important to note that several Nazis were not only convicted but also executed for their crimes. What does the Nuremberg precedent mean for former Prime Minister Bulent Ecevit ?
2. Article 49 of the IV. Geneva Convention of 1949 prohibits both the deportation of the civilian population from occupied territory and also the implantation of settlers: “The Occupying Power shall not transfer part of its own civilian population into the territory it occupies”. The 1977 Protocol I to the Geneva Conventions strengthens the prohibition of such implantations – and a violation of article 49 of the IV Geneva Convention constitutes a “grave breach” that pursuant to articles 146 and 147 of the Convention requires prosecution and punishment.
3. Articles 7 and 8 of the Statute of Rome of July 1998 – i.e. the Statute of the International Criminal Court at The Hague – prohibit both expulsions and implantations, which are deemed to be war crimes and crimes against humanity. Admittedly, the ICC statute has no retroactive application, but it is essentially declarative of pre-existing international law.
4. Numerous resolutions of the Security Council, General Assembly called for the removal of foreign troops from Northern Cyprus. Resolutions that have been hitherto ignored.
5. Other provisions of international law applicable in this context are
- The International Covenant on Civil and Political Rights, in particular article 2 on the right to a remedy, art. 9 on security of the person, art. 17 on the right o privacy, art. 23 on the right to family life, art. 26 on the right to equality and non-arbitrariness
- The International Convention on the Elimination of All Forms of Racial Discrimination
- The European Convention on Human Rights and Fundamental Freedoms, in particular article 8 on the right to family life, and Protocol I which protects the right to property

Then there are the general principles of law, overarching the Conventions, such as

- the principle of non-discrimination. After all, it was the Greek-Cypriots who were expelled and an Apartheid Wall was built separating the Country on ethnic and religious grounds
- the principle of self-determination, according to which only the native population of a country can participate in a self-determination referendum. This was the case in Western Sahara and East Timor. Recently the United Nations Human Rights Committee decided the case Gillot v. France, in which it approved the referendum that excluded recent settlers from voting in a referendum on self determination
- the right to one’s culture and identity. For instance, I participated in the UN missions to the Baltic countries concerning the Russian settlers. The resulting UN reports on the Russian Minorities in Estonia and Latvia did not impose an obligation on Estonia and Latvia to grant their Russian minorities citizenship, and expressed understanding for the Estonian and Latvian concern to defend their cultural identity.

In addition to these norms of customary international law, and other lex lata or hard law, there is international case law, including 4 inter-State cases Cyprus v. Turkey, which held that the expulsion of Greek Cypriots from their homes had been illegal and which provided for the right to return and the right to compensation.

And besides the various forms of hard law, there is also ample soft law in the form of resolutions of the United Nations General Assembly, the Commission on Human Rights and the Sub-Commission on Promotion and Protection of Human Rights.

Resolution 2002/30, adopted on 15 August 2002, concerns the right to return of refugees and internally displaced persons. Operative paragraph 1 “confirms that all those displaced have a right to return voluntarily in safety and dignity, as established in international human rights law”. Operative paragraph 3 “reaffirms that all those displaced have the right o adequate housing and property restitution, or, should this not be possible, appropriate compensation or another form of just reparation.”

Resolution 2005/21, adopted on 11 August 2005, concerns the right to housing and property restitution for refugees and displaced persons. Operative paragraph 1: “Urges States to ensure the right of all refugees and displaced persons to return and have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, and to develop effective and expeditious legal, administrative and other procedures to ensure the free and fair exercise of this right, including fair and effective mechanisms designed to implement this right.” Operative paragraph 2: “Reiterates that States should neither adopt nor apply laws that prejudice the restitution process, in particular through arbitrary, discriminatory, or otherwise unjust abandonment laws or statutes of limitations.”

During the 1990’s there were numerous UN resolutions affirming the right to one’s homeland, namely the right to live in peace and dignity in one’s homeland and the right to return – rights specifically to the Palestinians, the Bosnians, the Croats, the Kossovars, and also the Cypriots.

Then and most importantly there are the three UN Sub-Commission studies on the Human Rights Dimensions of Population Transfers by Special Rapporteur of the Sub-Commission Awn Shawkat Al-Khasawneh , now a judge at the International Court of Justice in The Hague. Already in his first report, written together with Sub-Commission member Ribot Hatano, unconditionally condemned all demographic manipulations, particularly through the implantation of settlers in occupied territory. His final report of 1997 appends a 13-point Declaration that is of particular relevance to Cyprus.

Article 5 stipulates that “The settlement, by transfer or inducement, by the Occupying Power of parts of its own civilian population into the territory it occupies or by the power exercising de facto control over a disputed territory is unlawful”
Article 6 provides that “Practices and policies having the purpose or effect of changing the demographic composition of the region in which a national, ethnic, linguistic, or other minority or an indigenous population is residing, whether by deportation, displacement, and/or the implantation of settlers, or a combination thereof, are unlawful”
Article 7 states “Population transfer or exchanges of population cannot be legalized by international agreement…”
Article 8 “Every person has the right to return voluntarily, and in safety and dignity, to his country of origin and, within it, to the place of origin or choice…”
Article 9 “The above practices of population transfers constitute internationally wrongful acts giving rise to State responsibility and to individual criminal liability” .
Article 10 “the international community as a whole, and individual states, are under an obligation: a) not to recognize as legal the situation created by such acts; b) in ongoing situations, to ensure the immediate cessation of the act and the reversal of the harmful consequences; c) not to render aid, assistance or support, financial or otherwise, to the State which has committed or is committing such act …” (E/CN.4/Sub.2/1997/23)

These principles or international law were affirmed by the first United Nations High Commissioner for Human Rights, Jose Ayala Lasso, in 1995 in a statement in Frankfurt am Main, and most recently in Berlin on 6 August 2005.

PROCEDURES

The solution of the settler issue depends on the reunification of Cyprus. This in turn depends on the freely exercised right of the Cypriot people. No Plan should be imposed on the Cypriot people from the outside. All five Annan Plans were ill-conceived, basically colonialist and undemocratic.

The Cypriot people have a right to convene a Constitutional Convention to adopt their own constitution, the product of discussion among the communities. This constitution would determine the rights of settlers and the Assembly could recommend special regulations concerning the orderly repatriation of a significant number of Turkish settlers.

A helpful procedure could be making use of article 96 of the UN Charter and having the General Assembly request an advisory opinion from the International Court of Justice. For instance, in the case of the Wall being built on Palestine occupied territory, the ICJ issued a thorough advisory opinion on 9 July 2004, which will have to be taken into account whenever a settlement of the Israel-Palestinian issue is seriously addressed.

An advisory opinion on the issue of the Turkish settlers would obviate the dishonest political maneuvers that produced the De Soto Plan, which the Cypriot people democratically and soundly rejected.

REMEDIES

Before remedies can be obtained, it is necessary to reunify the island. A constitutional Convention in which both communities would participate in drafting a new democratic constitution would be a first step.

As to the Greek-Cypriot population, the principal remedies would be

- the right of all Cypriots to return to their homes
- the right to restitution and compensation

As to the Turkish settlers, an individual determination of entitled to residence would be necessary. In this context it must be stressed that illegal settlers have no claim vis a vis the Republic of Cyprus, which has been prevented from exercising jurisdiction in the occupied territories. The settlers only have claims vis a vis Turkey.
Bearing in mind that the settlers were brought into Cyprus following an illegal aggression and that the Republic of Cyprus never granted them admission into the territory, it is clear that they are illegal aliens and that they have no right under articles 12 and 13 of the ICCPR to remain in the territory, since these articles only apply to persons legally within the territory of a State party to the ICCPR.

Of course, the settlers are human beings and possess the same human dignity as all other men and women. They have basic human rights that must be respected – for instance they cannot be subjected to indefinite detention like the economic migrants held indefinitely in detention centers by Australia – a practice that has been condemned numerous times by the UN Human Rights Committee. Nor can they be subjected to any kind of degrading or inhuman treatment like many unfortunate illegal migrants in Europe. They have the right to due process and that their cases be individually examined. Moreover, besides their undisputed human rights, other humanitarian considerations should be taken into account – such as family situation, inter-marriage with native Cypriots, length of stay. Nothing prevents the Cypriot people from granting the settlers permanent residence or even citizenship. But this must be the democratic decision of the people. In international law, the Republic of Cyprus is under no obligation to grant 120,000 illegal settlers the right to stay.

Repatriation can be carried out gradually and voluntarily, by means of incentive schemes. Turkey, for instance, could offer the settlers free land and preferential work opportunities at home. Here the international community could also assist financially. It would be a good investment in the name of peace. And organizations with vast experience in the logistics of repatriation, such as UNHCR and IOM would be called upon to organize and coordinate the process.

The institution of repatriation, by the way, should not be misinterpreted as punishment of the settlers. No one wants to punish the settlers. But, as in many human endeavors, there are competing rights and interests. On the one side, it is important to reaffirm the right of the Cypriot people to self-determination, to their history and identity, the imperative of reaffirming the international condemnation of aggression and rejection of its consequences, embodied in the principle ex injuria non oritur jus.

It is also necessary to balance out the interests of the settlers against the interests of the expelled Greek Cypriots, notably their right to return to their homes and to enjoy their property, which has been wrongly appropriated by the Turkish Government and assigned to the Turkish settlers.

In cases of grave violations of international law, as those committed by Turkey since 1974 – violations that the European Court of Human Rights has held to be continuing violations – the remedy must be restitutio in integrum, or the reestablishment, as far as humanly possible, of the status quo ante, that is, of the situation prior to the violation of international law.

ENFORCEMENT

Even when the norms are clear, even when Courts issue judgments, enforcement belongs in a different dimension. Without political will, the best norms and the best judgments remain dead letter.

At present the United States, the United Kingdom and Turkey are determined to frustrate the democratic rights of the Cypriot people, to continue imposing neo-colonial conditions on Cyprus, maintaining that absurd anachronism of the institution of the 3 guarantor powers – guarantors who do not guarantee democracy, but only the perpetuation of a quasi-protectorate over Cyprus. Enforcement of the judgments of the European Commission and Court of Human rights should be a prerequisite to any discussions with Turkey. So too the enforcement of the relevant resolutions of the Security Council and General Assembly.

Unfortunately, the Organization that should be demanding enforcement in the name of the credibility of its resolutions and the validity of international law, is precisely the Organization that betrayed its own principles and presented the Cypriot people with the poisoned plan that was so soundly rejected on 24 April 2004.

Thus, it is not for the United Nations to try to impose any more plans on Cyprus. It is for the sovereign Cypriot people to take their destiny in their hands and convene a Constitutional Convention to draft a new and truly Cypriot Constitution.

Bearing in mind that Cyprus is a member of the European Union, it would be a noble task for Brussels to assist the Cypriot people in achieving genuine self-determination. A new Cypriot Constitution could address all relevant issues concerning the residence, citizenship and/or repatriation of the Turkish settlers in a manner consistent with international law and the European acquis communautaire.

Prof. Dr.iur. et phil. Alfred de Zayas
23 Créts de Pregny
CH-1218 Grand Saconnex
Tel. 004122 7882231
zayas@bluewin.ch