Nicosia, 19 February 2011
Prof. Dr. ALFRED de ZAYAS, GENEVA
THE “Unsung Victims”, the ARTIFICIAL DIVISION OF CYPRUS
AND EFFORTS AT ARRIVING AT A SETTLEMENT
“A Principled Basis for a Just and Lasting Cyprus Settlement
on the Basis of International Law”
Eminences
Dear Colleagues, Ladies and Gentlemen,
First of all I wish to endorse the concrete proposals formulated
by Dr. Theofil Malkides and by Christos Jakovu. A Union of
Hellenes should be strengthened and it should liaise with other
victims of Ottoman and Turkish oppression, including all Christian
minorities of Asia Minor such as the Armenians and the Chaldeo-Assyrians . Not
only “historical inequities” must be made known and
vindicated, but also the continuing discrimination and intimidation,
the continuing cultural genocide and destruction of churches, monasteries,
cemeteries and other places of memory. The Greek Cypriots
must raise their voices internationally to denounce the pillage
of Greek Cypriot churches and sacred places by the Turkish occupation
since 1974, and demand full restitution of icons, mosaics and other
items of the Greek Cypriot cultural heritage.
A Union of Hellenes together with the Armenians and other “unsung
victims” must again and again remind the international community
of the historical events and demand the realization of the right
to truth, including the right to historical truth. This is
a right de lege ferenda that the current United Nations
High Commissioner for Human Rights Navi Pillay strongly supports . The
Hellenes must redouble their efforts so that these outrages be
formally recognised by Turkey, so that the international community
deny recognition to the consequences of the genocide. Academics
the world over must make sure that the Turkish attempt at destruction
of memory – damnatio memoriae – be repudiated.
This conference is devoted to the unsung victims – Greeks
of Pontus and Smyrna, Greeks of Constantinople, Greek-Cypriots,
Armenians, Chaldeo-Assyrians. Last September 2010 Hilda Tchoboian
held a very good lecture on “Three Genocides – One
Perpetrator” at
the Athens Conference. I endorse her observations and wish
this follow-up conference a broader international echo. Human
Rights Law and International Law are on the side of the victims.
It is important to know what your rights are and how to invoke
them.
Now, I wish to alert you to certain realities. International
Law is not mathematics. The Norms are not identical with
implementation. On the other hand, the absence of implementation
does not imply an absence of law, but rather an absence of effective
mechanisms of enforcement, and more often than not an absence of
political will. The strategy must therefore include education and
information campaigns so as to prepare the ground for the exercise
of informed political will. One cannot expect that the international
community will impose sanctions or that a disinvestment campaign
will take hold, until there is a general feeling that an injustice
has been committed and that the victims are entitled to rehabilitation,
restitution and compensation. Everybody agrees that there
should be no impunity – in principle – but not everybody
agrees about the guilt of the perpetrators. Information is
crucial in order to make it “click”.
And even when the information is available, there are other obstacles
to overcome, including neo-colonial and imperialistic paradigms,
strategic and geopolitical concerns, and (how could it be otherwise!)
economic interests. A classical example of how geopolitical
and economic interests trumped human rights considerations is the
disgraceful handling of the Turkish invasion of Cyprus by the international
community in 1974, the connivance of the major powers, the lip
service given to international law and human rights, and the absence
of any political will to correct the obviously illegal situation,
even though more than 36 years have elapsed since the Turkish aggression
and illegal occupation of 37% of the territory of the Republic
of Cyprus.
The United Nations has been in Cyprus for decades. The Security
Council, the General Assembly, the Commission on Human Rights and
the Human Rights Council have adopted relevant resolutions – but
there has been no implementation, nor any genuine effort to enforce
international law with respect to the continuing violation of the
rights of the Greek Cypriot people. The gap between law and implementation
remains as large as ever.
On 24April 2004 a United Nations drafted “Foundation Agreement” laid
down in “The Comprehensive Settlement of the Cyprus Problem” (the
Annan Plan for Cyprus) was put to a democratic vote in Cyprus and
75.8% of the Greek-Cypriot population rejected the plan.
The vote was followed by unjust and unjustifiable criticism of
the Greek-Cypriot electorate from the side of politicians and the
media, both in the European Union and in the United States. Yet,
if indeed the international community aimed at a democratic settlement
of the artificial division of Cyprus and of the consequences of
the illegal Turkish invasion of 1974, the best method was to allow
the Cypriot population to negotiate freely and not to attempt to
impose a plan in which the Greek-Cypriot and Turkish-Cypriot communities
had not fully participated. The reunification of the island
should be the result of community dialogue and not of international
interference, which in many ways reflect neo-colonial paradigms.
But once the international community decided to put the Annan
Plan to a vote, it was committed to respect the voice of the people,
for indeed, if the international community was acting in good faith,
then it had to welcome the results of the referendum and not protest
against the clear expression of the will of the people. The
very nature of the democratic process is that the result of a vote
may or may not be as anticipated. What matters is the freely
expressed choice of the people concerned and not the interests
of the major external powers. The choice was given to the
Cypriot people, and they spoke clearly, as was their democratic
right.
Nearly seven years after the vote, upon rereading of the Annan
plan, the non-committed observer may wonder why anyone could have
possibly expected the Greek-Cypriot population to vote for a plan
that entailed abandoning positions held by the Security Council
and the General Assembly since July 1974, abandoning the reports
of the European Commission of Human Rights, abandoning the judgments
of the European Court of Human Rights, and compromising fundamental
principles of law including:
- art. 2, paragraph 4, of the United Nations Charter stipulating
the prohibition of the threat and of the use of force
- Principle VI of the Nuremberg Principles, which defines the
crime against peace as a crime under international law
- General Assembly Resolution 2650 on “Friendly Relations”
- General Assembly Resolution 3314 on the Definition of Aggression
- Common Article 1 of the International Covenant on Civil and
Political Rights and the International Covenant on Economic Social
and Cultural Rights, which stipulates the right to self-determination,
more fundamentally the right to one’s homeland and the
prohibition to be expelled from one’s homeland
- Article 12 of the Covenant on Civil and Political Rights concerning
the right to return of refugees and expellees
- Protocol I of the European Convention on Human Rights, stipulating
the right to property
- Article 49 of the Fourth Geneva Convention of 12 August 1949
relative to the Protection of Civilians in Time of War, which
prohibits forced population transfers and the implantation of
settlers in occupied territory
- The Report of the UN Sub-Commission on the Promotion and Protection
of Human Rights on the Human Rights Aspects of Population Transfers,
which unequivocally condemns forced population transfers and
the implantation of settlers in occupied territory, Al Khasawneh
Report of July 1997, E/CN.4/Sub .2/1997/23, see annexes 1 and
2, and UN Sub-Commission Resolutions 1994/24, 1998/26, 1999/47,
2000/53, 2001/54, 2002/30, etc.
Moreover, the Annan Plan was contrary to several general principles
of law recognized by the International Court of Justice as a fundamental
sources of law (article 38 of the statute), including the principle
Ex injuria non oritur jus, according to which out of
a violation of law no legitimacy can arise,
The principle ubi jus ibi remedium, according to which
there is State responsibility for internationally wrongful acts
and a remedy for every violation.
The Annan Plan was incompatible with the prohibition of unjust
enrichment, according to which a thief cannot keep the fruits of
a crime
Many provisions of the Plan are also inconsistent with specific
human rights norms developed by the competent United Nations organs
following the rejection of the Annan Plan, including
The Pinheiro Pinciples of 2005, in particular the right to return
of refugees and expellees
The Basic Principles and Guidelines on the Right to a Remedy,
adopted by General Assembly on 16 December 2005 .
In view of the above it is clear that the Annan Plan was rightly
rejected and that no one should be tempted to resuscitate it.
This is why in 2005 an International Expert Panel composed of
eight independent international lawyers including Professor Andreas
Auer, Professor Marc Bossuyt, Professor Peter Burns, Professor
Malcolm Shaw and myself were called upon to prepare a study for
a Constitutional Convention for Cyprus. The purpose of our Report
was to seek a just Cyprus settlement providing for the peaceful
and prosperous future of all the people of the island. In order
to do this, we endeavoured to apply principles drawn from international
and European law for the settlement of international disputes,
including disputes concerning members of the European Union. Such
principles lie at the heart of international and European law.
Failure to respect such principles is likely not only to prejudice
the success of any particular settlement plan by internalising
contradictions with international law and thus weakening its sustainability,
but also to constitute a destabilising element for the future. A
political settlement contrary to accepted international and European
legal principles would entail serious consequences for the stability
of the international order.
The fundamental principles of international and European law offer
a unique guide and methodology by which to initiate and successfully
conclude a process leading to a Cyprus settlement within the framework
of a new and genuinely Cypriot Constitution in accordance with
the right of self-determination. This is at the very core of a
European solution for Cyprus, consistent with international and
European law.
We completed our Report in the fall of 2005 and presented it to
the Cypriot President Tassos Papadopoulos, and to the leader of
the Turkish community in occupied Northern Cyprus, Mehmet Ali Talat,
as well as to the European Parliament in Brussels . We
conducted an international workshop on the Constitutional
Convention for Cyprus in April 2008 at the Centre for Research
on Direct Democracy in Aarau, hosted by Professor Andreas Auer
of the University of Zürich.
In or Report we recommended:
a) The acknowledgement of the aforesaid Fundamental Principles
by those parties involved in seeking peace, justice and security
in Cyprus.
b) The adoption of a Resolution in the European Parliament (and
in other pertinent international institutions) reaffirming the
Fundamental Principles.
c) The establishment in the European Parliament (and in other pertinent
international institutions) of a monitoring mechanism by which
the conformity of any proposed Cyprus settlement with the Fundamental
Principles may be ensured.
d) The creation of a Constitutional Convention under European Union
auspices and on the basis of the 1960 Cyprus Constitution to bring
together the parties directly concerned in order to reach a settlement
in conformity with the Fundamental Principles.”
We concluded our Report by pointing out that the accession of the
Republic of Cyprus to the European Union has fundamentally changed
the internal as well as the external aspects of the Cyprus problem.
Greek and Turkish Cypriots have now become citizens of the Union,
enjoying the rights and subject to the duties provided for in the
European legal order. The Republic of Cyprus is a member state
and thus one of the “Masters of the Treaties”. Had
the Annan Plan been accepted and implemented before accession,
that very accession would have rested on shaky legal grounds, as
the Union would have integrated a new member state which would
not even have signed the accession treaty, while the Republic of
Cyprus, which has signed the treaty, would have ceased to exist.
Now that accession has become a reality, the abolition of the Republic
of Cyprus through a revised Annan Plan is prevented by the very
existence of the European Union.
Our Report noted that the European Union has the historic opportunity
and the special responsibility for promoting a new process of democratic
constitution making in Cyprus and for convincing all communities
to take part in such a process. In so doing, the European Union
would ensure the application of its own principles and values,
as well as those of international law generally, within the territory
of one of its own member-states.
Ladies and gentlemen,
There is no doubt that international law is on the side of the
Greek Cypriots. But, as indicated above, the problem lies
elsewhere – in power politics, in the vestiges of British
colonialism, in the geostrategic interests of the United States,
in the economic interests of the European Union, in Turkish imperial
fantasies and in the intellectual dishonesty of countless politicians,
journalists and university professors.
Yet, the victims should never give up. Gutta cavat lapidem. Perseverence
ultimately prevails. I therefore encourage you to serenely
and firmly demand that International law be applied uniformly,
even if we all know that it is applied à la carte. We
should insist that Human rights principles be respected, always
keeping the human dignity of each individual in mind, and notwithstanding
the fact that human rights continue to be applied selectively.
We note that there are consensus victims and those whom the world
would prefer to forget. These are the “unsung victims” – the
Greek Cypriots, the Greeks of Pontos and Smyrna, the Chaldeo-Assyrians,
the Greeks and Armenians who endured the Setemvriana pogrom ,
the Ukrainians who endured the Holodomor, the 15 million
ethnic Germans expelled
from their 700-year homelands of East Prussia, Pomerania, Silesia,
East Brandenburg, Bohemia, Moravia, Yugoslavia, the Amerindios
of South America, the First Nations of the United States and Canada,
who are still subjected to the indignity of being called “Indians”,
the Aborigines of Australia and Tasmania. When will these
unsung victims experience justice?
When will their status as victims be recognized by the international
community?
Let me conclude with the thought that you all should manifest
your willingness to dialogue:
Yes, -- there is room for dialogue, but not for the destruction
of memory.
No, -- there is no room for dialogue on the existence of the crime
of genocide, but there is an urgent need for dialogue on rehabilitation
and reparation for the victims.
No, -- there is no room for distractions and red herrings. There
is a need for sincere dialogue and intellectual honesty, for emotional
maturity in coming to grips with the past.
Yes, -- the United Nations, the European Union, the international
community have a role to play here, but not by imposing a “plan” top-down,
but rather by facilitating a true democratic dialogue between the
parties bottom-up.
Yes, -- there is need to focus on the future, but not at the expense
of the past,
For one cannot build a sustainable future on the uncertain sands
of untruth and injustice.
Efharisto.
Alfred de Zayas, The
Genocide against the Armenians 1915-1923 and the Relevance
of the 1948 Genocide Convention, Haigazian University
Press, Beirut, 2010.
http://armeniantrends.blogspot.com/2011/01/hilda-tchoboian-trois-genocides-un-seul.html
http://www.unhcr.org.ua/img/uploads/docs/PinheiroPrinciples.pdf
http://alfreddezayas.com/Law_history/Cyprusproposal.shtml
Alfred de
Zayas, “The Istanbul Pogrom of 6-7 September 1955 in
the light of international law” in Genocide Studies
and Prevention, University of Toronto, 2007.
Alfred de
Zayas, « Nemesis at Potsdam », Routledge,
London 1977 ; Alfred de Zayas « A Terrible
Revenge » Palgrave/Macmillan 2006.
|