Michael A. Zachariades
Leiden University
September 2002
LLM Public International Law
TRANSPLANTED POPULATIONS and the PROBLEMS CAUSED: CYPRUS
Table of Contents
1. Cyprus Chronology
- Leading up to Turkish Invasion
2. International Law
and Turkey’s Violations due to Invasion and Occupation
3. Turkey’s
Declaration of an Independent State
4. European Court of
Human Rights Finds Turkey Guilty
5. Joint Legal Opinion
of Legal Experts
6. European Stance on
the Cyprus Problem and European Union Membership
7. Turkish Settlers
8. Turkish-Cypriot
Press
9. Solutions
10. Conclusion
TRANSPLANTED POPULATIONS and the PROBLEMS CAUSED: CYPRUS
In
the pages that follow, we will begin, in Part I, by taking a journey through
Cyprus’ history leading up to Turkey’s military invasions in July and August
1974. We will prove that due to the treaties that were signed and the
Constitution that was drafted for Cyprus, after she gained independence from
Britain in 1960, set her on a collision course with outside control, occupation
and division.
In
Part II, we will note that Turkey’s invasions that occurred in 1974 led to her
constant violations and blatant disregard for international law. Subsequently,
we will question why Turkey and her authorities have not been held accountable
for their actions.
Later,
in Part III, Turkey’s “puppet regime”, the “Turkish Republic of Northern
Cyprus” (“TRNC”), declared itself an independent state. We will conclude that
the “TRNC” did not satisfy the Montevideo requirements for acquisition of
statehood. Therefore, the creation of such an entity is a violation of
international law and subsequently, any recognition of the “TRNC” is also a violation
of international law.
In
Part IV, we will cover the European Court of Human Rights and the decisions of Loizidou v. Cyprus and Cyprus v. Turkey. These two cases are
important for the future of Cyprus and her people, both
Greek and Turkish Cypriots alike.
Then
we will, in Part V, review the “Joint Legal Opinion” of legal experts in
regards to several issues affecting Cyprus today. We will address various
issues relating to human rights violations committed in Cyprus, by Turkey. For
instance, we will cover forcible transfers as breaches of particular human
rights standards, forcible transfers as racial, religious or other
discrimination: “ethnic cleansing”, large scale forcible transfers as a crime
against humanity, and forcible expulsion by a belligerent or unlawful occupant.
Part
VI will assess the European Stance on the Cyprus Problem and European Union
Membership. We will also include a section devoted to the winners and losers of
Cyprus’ accession into the European Union. Subsequently, we will conclude that
Turkey has the most to lose and gain by solving the Cyprus Problem prior to
Cyprus’ accession.
In
Part VII, we will review the issues relating to the Turkish “settlers” and the
Turkish policy of “Turkification” in the “occupied areas” of Cyprus. This will
include the creation of citizenship laws in the “occupied areas”, contrary to
the Republic of Cyprus’ laws, in order to give “settlers” Turkish-Cypriot
citizenship.
Part
VIII will be devoted exclusively to the Turkish-Cypriot press. In this section,
we will include several articles written by Turkish-Cypriot journalists
regarding the crisis that exists in “occupied” Cyprus. This will help the
reader understand that a solution will help the Turkish-Cypriots and
Greek-Cypriots alike.
Then, in Part IX, we will look into various means of
finding a just and viable solution to the Cyprus Problem. We will begin by
looking into Turkey’s military action and occupation as illegal and “an act of
aggression” that cannot be sanctioned. Therefore, we will conclude that since
Turkey’s initial action was illegal, anything that flows from that initial
illegal act is, therefore, also illegal.
Then, we will look into the mandatory steps that need to
be taken in order for there to be a solution that is fair for all the people of
Cyprus. For instance, we will conclude that the Turkish military withdrawal
from Cyprus, the return of refugees and displaced persons to their country,
property and homes, and that the repatriation of Turkish “settlers” is the only
means at finding a realistic solution. Additionally, we understand that every
individual has rights, hence, we will question whether any of the “settlers” in
the “occupied areas” have any legal right to remain in Cyprus.
Finally, in Part X, we will present our conclusion based
on the facts and law established in the proceedings pages. We will argue that
the continuing illegal acts committed by Turkey, in Cyprus, shall no longer be
unnoticed or ignored by the international community. The solution should not
legalize the atrocities that have been committed by Turkey. Most importantly,
the solution should not waive or ignore any rights that any displaced person or
refugee is or has been entitled to since Turkey’s act of aggressions in 1974.
Cyprus is the third largest island in the Mediterranean
Sea, about the size of the State of Connecticut, USA, with an area of 9,251
square kilometers. Its location is important because it lays in the
northeastern corner of the Sea, where three continents meet - Europe, Asia and
Africa. At the end of 1997, Cyprus’ population was 746,100. It consists of over
85% Greek-Cypriots, which includes Maronites, Armenian, Latins, 12% Turkish
Cypriots and 3% foreigners residing in Cyprus.
The island’s location and its copper attracted traders and
settlers from much of the eastern Mediterranean Sea. It
appeared for the first time in the history of civilization during the Neolithic
period. However, it was during the last phase of the Bronze Age, in the 13th
century B.C., when the Mycenean Greeks came for the first time to Cyprus as
merchants and immigrants. They settled and introduced the Greek language and
culture and both have been preserved to this day.
Tauber, the demographer aptly described this persistence
of Hellenism as,
“When it is remembered that the major Greek
colonization occurred in the Bronze Age, that alien groups ruled Cyprus for
more than two thousand years, that refugees had come in from many areas at many
different periods, the persistence of a basically Greek population is quite
astounding.”
At the end of the 4th century B.C., Cyprus
became part of the Kingdom of Alexander the Great, which lasted until the 1st
century B.C., when Cyprus became part of the Roman Empire and we see the
beginning of the Byzantine period under Emperor Constantine. Byzantium, now
Istanbul, became the capital of the Roman Empire. Under Constantine, Byzantium
was called New Rome and then Constantinople. During the 15th
century, Cyprus came under the rule of the French Lusignans and the Orthodox
Church was repressed. In 1489, Cyprus became part of the Republic of Venice and
in 1571, the Ottomans conquered it.
It is crucial to note that in examining the demographic
history on Cyprus, the two most important events that are relevant to the
present demographic profile of the island are:
(1) the establishment
of Hellenic colonies during the Bronze Age and
(2) the introduction of
the Turkish component into the population matrix of the island following the
Turkish conquest of 1571.
Under Ottoman rule, the Greek Orthodox Church was
restored.
Turkey began to export a population from her mainland onto the Island of
Cyprus. In 1572, the first Turkish census showed 85,000 Christians and 20,000
Muslims liable for poll tax. Cyprus remained under Ottoman rule for centuries.
In 1821, during the Greek War of Independence, many Cypriots fought and fell
fighting this war. In addition, during the war a number of Bishops in Cyprus
were hanged by the Turkish authorities, having been accused of supporting the
revolution. The question of Cyprus, and its incorporation into a larger
Greek-state was raised soon after 1830; however, it did not become possible.
The Ottomans remained in control of Cyprus until 1878.
In 1878, Turkey ceded Cyprus to Britain because they
feared the expansionist policy of Tsarist Russia. Britain in return, promised
to help Turkey in the event of an attack by Russia on certain bordering
provinces. The Cypriot people, again, demanded to be incorporated with Greece.
However, they were never asked what they wanted, and Turkey and Britain were
not looking out for any interest but their own.
British Colony
In 1923, Turkey, under the Treaty of Lausanne, Article 16,
renounced all claims to Cyprus and by Article 27, of the same treaty, divested
itself of the exercise of any power or jurisdiction in political, legislative
or administrative matters over the nationals of Cyprus. In 1925, Cyprus was
formally declared a British colony. At that point, the Turkish population on
the island, whether they were descendants of members of the Turkish occupation
force or expatriates from Turkey, where given a choice between permanent
settlement in Cyprus or repatriation to Turkey. Only a small number choose the
latter.
Under British control, primary education was put under
direct British supervision. In addition, Britain applied the Metternihic Rule
of “divide and conquer” in order to safeguard their geopolitical and
geo-strategic interests following the Greek-Cypriot demands for “enosis”
with Greece. In addition, Turkey encouraged and assisted the nationalist
elements among the Turkish-Cypriots, to demand “taksim”.
Hence, a split was starting to form amongst the economic and cultural elites.
However, not until 1955, when the Greek-Cypriots started the struggle for
liberation from British rule, did this become apparent. Prior, the
Turkish-Cypriots in Cyprus intermingled with the Greek-Cypriot people and lived
in peace and harmony with them.
When the Greek-Cypriots could not achieve their freedom
peacefully, they took up arms against the British colonial power. Britain
worried about Cyprus’ push for self-determination and called on Turkey to
intervene. In defiance of the Treaty of Luassane, Turkey subsequently
intervened “to protect the Turkish-Cypriot minority.” However, the
Turkish-Cypriots where never in any danger. The partition of Cyprus became the
objective of Turkish foreign policy, from that point, up to the present.
The Republic of Cyprus - Rise and Fall
On 11 February 1959, an agreement was reached between
Greece and Turkey on a plan for a settlement. An
agreement was signed on 19 February for the final settlement of the Cyprus
dispute.
On the basis of the Zurich and London Agreements, a constitution was drafted
and Cyprus was proclaimed an independent state on 16 August 1960. The
Constitution divided the two communities on the basis of ethnic origin. The
President had to be a Greek-Cypriot elected by the Greek-Cypriots and the
Vice-President a Turkish-Cypriot, elected by the Turkish-Cypriots. Archbishop
Makarios and Fazil Kutchuk were elected President and Vice-President of Cyprus,
respectively.
The Agreements that were signed had many flaws. For
instance, during British colonial rule, in the courts, the Greek-Cypriot and Turkish-Cypriot
judges tried all the cases, irrespective of the origin of the litigants.
Interesting to note, no complaints were ever filed against the judges. However,
the above Agreements provided that disputes among Turkish-Cypriots needed to be
tried by Turkish-Cypriot judges and disputes among Greek-Cypriots, tried by
Greek-Cypriot judges. In the case where there was a dispute between a
Greek-Cypriot and a Turkish-Cypriot, two judges had to sit and try the case.
This only led to bias and a court that was not productive. In addition,
separate Greek and Turkish Communal Chambers were created to deal with
education, religion and sporting matters, to name a few. This system was
destined to fail and drive the Greek-Cypriots and Turkish-Cypriots further
apart, as we will read later.
Apart from the Zurich and London Agreements, two treaties
were signed that infringed on the independence and sovereignty of the Republic
of Cyprus. First, and most important, the 1960 Treaty of Guarantee. It was
signed between Cyprus, on the one hand, and Greece, Britain and Turkey on the
other. Under this Treaty, Greece, Britain and Turkey were given “the right of
joint or even unilateral action for the purpose of re-establishing the state of
affairs created by the Treaty.” Second, the Treaty of Alliance. This was
between Cyprus, Greece and Turkey. This gave them the right to station
military, of their own forces, on the island. How can a State function
internally and deal with their own domestic affairs if there is some other
State there to tell them what and how to do things? Simply put, distrust and
division was destined.
These Treaties were in direct conflict with the basic
principles of international law and the United Nations (UN) Charter, contrary
to the right of every state to full sovereignty and independence. In other
words, the powers given to Greece, Turkey and Britain, to act unilaterally if
it is “needed”, would constitute intervention in the domestic affairs of an
independent state and a member of the United Nations.
On November 1963, President Makarios drafted 13 amendments
to the Constitution. The President hoped that this would remove some of the
obvious causes of friction. These amendments were submitted to the
Turkish-Cypriot minority, however, before they could review and decide, the
Turkish Government said they were unacceptable.
On 21 December 1963, inter-communal violence broke-out
between the Greek and Turkish-Cypriots. The Turkish Government and the Turkish
terrorist organization in Cyprus (TMT), threatened to launch an invasion.
President Makarios’s proposal for amending the Constitution was exactly the
excuse that the Turkish Government was looking for to put the plan of partition
of Cyprus into use.
Turkish-Cypriot Ministers, members of the House, as well
as Turkish-Cypriot civil servants, withdrew from the Government. On false
claims that the Government of Cyprus was about to annihilate the
Turkish-Cypriot minority, Turkish officers resorted to forcible movement of
sections of the Turkish-Cypriot population. However, this was not for
protection, as it would seem. Rather, it was to create compact Turkish areas
and create a geographical separation on the island, between her people.
On 31 December 1963, the Vice-President made two
statements in regard to the crisis. Kutchuk said that the Constitution of
Cyprus “no longer existed because there was no possibility of the Turkish and
Greek communities of living together on the island.” He declared, “the Cyprus
Constitution is dead.” In
addition, he was asked if he wanted Cyprus partitioned between the Turkish
minority and Greek majority, he replied, “Call it partition if you like.”
The former Vice-President of Turkey, Kemal Satir, in a public statement said,
“Cyprus will be divided into two sections, one of which will join Turkey.” The
then Foreign Minister of Turkey, in an Athens newspaper added, “the radical
solution… would be to cede one part of Cyprus to Greece and the other, closest
to the Turkish Asiatic coast, to Turkey.”
In response to the serious situation in Cyprus, the
threats and acts of intervention, aggression from outside, and the forcible
population transfers; the British Government convened the London Conference to
deal with the problem. The Government of Cyprus realized that it was being
pushed into agreeing on the occupation of Cyprus by foreign troops and the
establishment of the intergovernmental committee, which would in a way, replace
the authority of the Cyprus Government. Turkish threats at invasion were
constant. The Cyprus Government appealed to the United Nations for assistance.
In March 1964, under Security Council resolution 186 (1964), the United Nations
Peacekeeping Force in Cyprus was formed (UNFICYP). However, during this period
soldiers and arms arrived on the island. In August 1964, Turkey bombed
Greek-Cypriot villages with napalm.
In 1965, the United Nations Secretary-General appointed
Dr. Galo Plaza, mediator. Plaza issued a report that stated that the problem of
Cyprus could not be resolved by resorting back to the situation that existed
prior to 1963. Instead, a new solution would have to be found. In other words,
he stated that the solution should satisfy the majority of the population, and
at the same time, protect the legitimate rights of all the people on the
island. Unfortunately, Turkey rejected this.
Dr. Plaza added that
…if the purpose of a settlement of the Cyprus
question is to be the preservation rather than the destruction of the state and
if it is to foster rather than to militate against the development of a
peacefully united people, I cannot help wondering whether the physical division
of the minority from the majority should not be considered a desperate step in
the wrong direction. I am reluctant to believe, as the Turkish-Cypriot
leadership claims, in the “impossibility” of Greek-Cypriots and
Turkish-Cypriots learning to live together again in peace. In those parts of
the country where movement controls have been relaxed and tensions reduced they
are already proving otherwise.
On 18 December 1965, the United Nations General Assembly
passed resolution 2077, because they were concerned about the Turkish threat to
Cyprus’ sovereignty and independence. This resolution called upon all states to
“respect the sovereignty, unity, independence and territorial integrity of the Republic
of Cyprus and to refrain from any intervention directed against it….” In
addition, the resolution recommended “to the Security Council the continuation
of the United Nations mediation work in conformity with Council resolution
186(1964) of 4 March 1964.”
In 1968, President Archbishop Makarios was re-elected
overwhelmingly, and he declared that “enosis” was not realistic.
In addition, the United Nations Secretary-General recommended and started talks
between the Greek and Turkish Cypriots to find a solution to the Cyprus
problem. However, as noted above, the Turkish aim was “taksim,” therefore, no agreement was found.
President Makarios began normalizing the restrictions on
the Turkish-Cypriots. Hence, the restrictions and checkpoints that were established
following the clashes of 1963-1964 were lifted. Now, the Turkish-Cypriots were
free to move around the entire island. However, the Turkish authorities did not
follow suit. Nonetheless, inter-communal talks continued to proceed with the
belief of finding a settlement based on a unitary, independent and sovereign
state.
A breakthrough seemed imminent. However, in February 1974,
Turkey’s intention came into clear fruition, when Turkish Prime Minister
Ecevit, declared that only federation could be accepted in Cyprus. Later, in
July 1974, Turkey invaded Cyprus.
Conclusion
In retrospect, Greek inhabitance of Cyprus that dates back
to the Bronze age, shows us that this island consists of a religion, culture
and language that is of Greek origin. However, we must also understand that the
Turkish conquest also played a large role in creating Cyprus’s demography.
Subsequently, the Greek-Cypriot majority and Turkish-Cypriot minority lived
together, in peace and harmony, for hundreds of years.
However, we believe that two of the many things that led
to the deterioration of peace and harmony should be highlighted. The first, the
plan of “taksim” was engraved in the minds of the Turkish-Cypriots, which led
them to believe, after many years of co-habitation, that things needed to
change. The Turkish-Cypriots were led to believe that “taksim” was the only
answer to their problems, even though no problem existed.
Then, there was the 1960 Treaty of Guarantee. Here, Turkey
was given “the right of joint or even unilateral action for the purpose of
re-establishing the state of affairs created by the Treaty.” In the end, their
actions were unilateral; however, they did not achieve the “purpose” of the
Treaty. Instead, they achieved their own “purpose” which is to “occupy” a foreign,
sovereign, and last but not least, the territory of an United Nations member.
Coup and Invasion
On 15 July 1974, a coup d’etat, engineered by the Greek
military junta, which aimed at assassinating President Makarios, became the
catalyst that the Turkish Government was waiting for. With this as a backdrop,
on 20 July 1974, Turkey invaded and claimed the right under the 1960 Treaty of
Guarantee to protect, as they argued, the Turkish-Cypriot minority that was in
“danger.” In fact, no Turkish-Cypriots were in danger during the coup. The coup
was designed to overthrow the President, not to attack any civilians.
In violation of the United Nations Charter
and international law, Turkey’s military invaded and continues to occupy over
1/3 of the Republic of Cyprus, a democratic and internationally recognized
sovereign state. International lawyers around the world, such as, Prof. John
Dugard and Prof. James Crawford, classify the 1974 invasion and the continuing
occupation as illegal. In addition, the United Nations’ Security Council and
General Assembly confirm this view by the passage of numerous resolutions
calling the invasion deplorable and calling on the Turkish troops withdrawal.
United Nations Charter, Chapter 1, Article 2, Paragraph 4
reads as follows:
“All members shall refrain in their international
relations from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent with
the Purposes of the United Nations.”
In response to Turkey’s violation of international law,
the United Nations Security Council passed resolution 353, which
1. “Calls upon all
states to respect the sovereignty, independence and territorial integrity of
Cyprus;
2. “Calls upon all
parties to the present fighting as a first step to cease all firing and
requests all states to exercise the utmost restraint and to refrain from any
action which might further aggravate the situation;
3. “Demands an
immediate end to foreign military intervention in the Republic of Cyprus that
is in contravention of operative paragraph 1 above; and
4. “Requests the
withdrawal without delay from the Republic of Cyprus of foreign military
personnel present otherwise than under the authority of international
agreements, including those whose withdrawal was requested by the President of
Cyprus, Archbishop Makarios, in his letter of 2 July 1974”.
However, the Turkish occupying regime did not adhere to
the calls at re-establishing law and order, not to mention peace.
During the first offensive of 20 July 1974, Turkey managed
to capture 8% of the Republic’s territory. However, with the “cease-fire” in
place they violated Security Council resolutions and the agreements signed at
Geneva
by proceeding with a second offensive. On 15 August 1974, the Turkish military
illegally captured an incredible 38% of Cyprus. If at first you do not succeed
initially, try and try again. Even though Security Council resolution 353
called for a “cease-fire” and the Foreign Ministers of the Guarantor Powers
were in discussions on how to solve the dire situation, Turkey planned and
executed their plan of partition on the island.
Right as Guarantor Power
In order to understand the situation, we need to look back
to the 1923 Lausanne Treaty. As written in part I (above), Turkey renounced all
claims to Cyprus and divested itself of the exercise of any power or
jurisdiction in political, legislative or administrative matters over the nationals
of Cyprus. From that point, and up to the point when the Treaty of Guarantee
was signed in 1959, Turkey had no right(s) in Cyprus.
In order to entertain Turkey’s argument that it had a
right under the Treaty of Guarantee may be, in some capacity, understandable.
However, this does not explain Turkey’s multiple invasions. If Turkey had a
right to intervene, it was in order to, and for the purpose of, re-establishing
the state of affairs created by the Treaty. The right ends there. Their right
as Guarantor did not include the “right to invade” an independent and sovereign
country.
It is important to note that when a foreign power
intervenes, or in this circumstance, invades, once order is re-established and
calm is restored, according to the norms of international law, the foreign
power must leave. They
cannot remain as an occupying force dictating their ideas of law and order.
However, in violation of international law, the Turkish military has remained
an occupying force in Cyprus for 28 years.
If Turkey intervened to “restore order” and then withdraw,
rather than invade, as they did in 1974, this situation may never have been an
issue. So long as, the foreign Turkish Army left, as quickly as they came.
However, a multiplied round of atrocities against Greek-Cypriots occurred
massively with the invasion. Turkey held over 70,000 Cypriot Civilian Prisoners
in Concentration Camps in the “occupied areas” of
Cyprus and in Turkey as hostages. Over 1600 of these prisoners which included,
the old, woman and children. A further 8000 Greek-Cypriots were killed during
the Turkish invasion. 200,000 Greek-Cypriots instantly became refugees, while
over one-third of the Cyprus population was “ethnically cleansed”
by Turkey in their own country.
Human Rights Violated
The European Commission of Human Rights confirmed flagrant
violations of human rights by the invading Turkish forces in all respects. It
established violations of the right to life by indiscriminate murders, inhuman
and degrading treatment, of the right to freedom and safety, by the use of
detention centers, both in Cyprus and in Turkey, rapes, displacement and
looting.
In November 1974, the United Nations General Assembly
unanimously adopted resolution 3221, with the framework for a solution to the Cyprus
problem. It
1) Calls upon all
states to respect the sovereignty, independence, territorial integrity and
non-alignment of the Republic of Cyprus and to refrain from all acts and
interventions directed against it;
2) Urges the speedy
withdrawal of all foreign forces and foreign military presence and personnel
from the Republic of Cyprus and the cessation of all foreign interference in
its affairs;
5) Considers that all the refugees should return to
their homes in safety and calls upon the parties concerned to undertake urgent
measures to that end.
The adherence to this resolution was made mandatory when
the Security Council endorsed resolution 3212 in its own resolution 365 (1974)
of 13 December 1974. However, Turkey did not comply with any resolutions then,
and they are not today. Even though Turkey is obligated to act because she is a
member of the United Nations, no pressure has been applied on Turkey, and
therefore, no solution has been attained.
Turkey’s Unwillingness to Negotiate
On 10 February 1975, the Greek-Cypriot side, in an attempt
to end the stalemate and enter into meaningful negotiations with the
Turkish-Cypriot side, sent proposals to end the problem based on the United
Nations resolutions. On
13 February 1975, Turkey’s response was heard when they announced the
establishment of the “Turkish Federated State of Cyprus”
(“TFSC”). This action was denounced by the international community and the
United Nations Security Council with its resolution 367 (1975) of 12 March
1975.
However, Turkey, once again, ignored international law and the international
community by declaring a separate federated state.
With the creation of the illegal “TFSC” comes the creation
of an illegal “constitution”. The “constitution” has many problems and flaws.
For instance, in the “constitution, the Greek-Cypriot and non-Turkish
communities that are enclaved in the “occupied areas”, are defined as “aliens.”
In other words, they are deprived of the most fundamental and basic human
rights. Their rights to ownership are not respected and there are special
expropriation laws dealing with the property belonging to displaced
Greek-Cypriots and their immediate allocation to the Turks from Turkey and
Turkish-Cypriots.
In 1975, 20,000 Greek Cypriots and Maronites remained enclaved
in the Karpass Peninsula and Kyrenia. With their continual denial of basic
rights, such as health care and education, all but 600 have left for better
life in the south. In leaving, they too became refugees and had their homes,
properties and belongings illegally expropriated to Turks from the mainland and
Turkish-Cypriots.
President Makarios emphasized in his address before the
United Nations General Assembly,
in an independent, non-aligned Cyprus free from the
threats of force and all outside interference, its people, Greek and Turkish
Cypriots, can live together in harmony with mutual respect for their legitimate
rights. In these circumstances there will be neither need nor purpose for the
existence of any armies…. The Government of Cyprus supports a fully
demilitarized state of Cyprus and to this end is prepared to disband completely
its armed forces.
Turkey made it clear that she was against any meaningful
negotiations and tried to prolong the talks. The United Nations General
Assembly demanded the withdrawal of all foreign troops without further delay.
However, 28 years later and no change.
In January 1977, Rauf Denktash
asked to meet with President Makarios. The meeting was to take place under the
auspices of the United Nations. On 12 February 1977, President Makarios and
Turkish-Cypriot Leader Denktash agreed to the High-Level Agreement guidelines
for the next round.
The text of the agreed instructions (guidelines) reads as
follows:
1. We are seeking an
independent, non-aligned, bi-communal Federal Republic.
2. The territory
under the administration of each community should be discussed in the light of
economic viability or productivity and land ownership.
3. Questions of
principles like freedom of movement, freedom of settlement, the right to property
and other specific matters, are open for discussion, taking into consideration
the fundamental basis of a bi-communal federal system and certain practical
difficulties, which may arise, for the Turkish-Cypriot community.
4. The powers and
functions of the central federal government will be such as to safeguard the
unity of the country having regard to the bi-communal character of the State.
Nonetheless, even with the guidelines in place, Mr.
Denktash did not substantively add to the negotiations. He reiterated all that
he said in the talks one round earlier. Once again, the Turkish-Cypriot side,
thanks to Denktash, failed to submit any proposals that would form a basis for
settlement.
The Cyprus problem was dealt with again in 1977, when the
United Nations General Assembly adopted resolution 32/15. Once again, the
resolution called for the urgent and effective implementation of resolution
3212(XXIX) and resolution 365(1974), as the valid framework for the solution of
the problem on Cyprus. In addition, it “calls for the urgent resumption in a
meaningful and constructive manner for the negotiations between the
representatives of the two communities.” And it “demands that the parties
concerned refrain from any unilateral actions which might adversely affect the
prospects of a just and lasting solution of the problem of Cyprus by peaceful
means.”
Conclusion
When a State violates international law, should they not
be held accountable? Do thousands more have to die? Should we wait until all
the remaining enclaved Greek-Cypriots in the “occupied areas” become refugees
as well? How much longer does the situation in Cyprus have to continue in order
for the international community to react with sternness? This would not be the
first time, nor the last time, that actions were taken against a State that
violated and continues to violate, international law.
Look to Iraq, for instance. Sanctions are still in place
today for their non-compliance with United Nations resolutions. What about
Serbia? Is it because that situation was “dire”? Their actions led to sanctions
and eventual bombing by the North Atlantic Treaty Organization (NATO).
However, 28 years later, countless of international laws violated, and still,
Turkey has not been held accountable or paid any repercussions.
If laws are in place to keep States just and Turkey is a
State, would it not be logical to conclude that these laws should apply to
Turkey and keep it just?
On 15 November 1983, the part of the Republic of Cyprus
that has been under illegal Turkish domination since 1974, unilaterally
declared itself independent. The “Turkish Republic of Northern Cyprus”
(“TRNC”), as it calls itself, is not recognized by the international community.
However, Turkey, even though acting surprised, recognized the “new state” and
pledged to assist it.
This action provoked universal condemnation and the
international community unequivocally declared that there shall be no question
of recognition. Even today, there has been no recognition, other than from
Turkey.
On the same day, Mr. Kyprianou, the then President of the
Republic of Cyprus responded that
“this action not only complicated further the Cyprus
problem but made it clear that the intention of the Turkish side was always to
create faits accomplis and to create conditions for the secession of the
occupied area from the Republic of Cyprus.”
It is important to highlight that this action would not
have been possible but for the presence of Turkish troops in Cyprus. Hence,
Turkey is in violation of the 1960 Treaty of Guarantee, under which Turkey,
together with Britain and Greece, had undertaken to safeguard the independence
of the island.
The United Nations Secretary-General stated that this
action was “contrary to the resolution of the Security Council on Cyprus and at
variance with the high-level agreements of 1977 and 1979.” In addition the
Secretary-General declared that the unilateral declaration of “independence was
bound to affect adversely the situation in Cyprus” and to complicate efforts
“to promote an agreed, just and lasting settlement.”
On 18 November 1983, the Security Council adopted
resolution 541(1983), which reads, in part,
1. Deplores the
Declaration of the Turkish Cypriot authorities of the purported secession of
part of the Republic of Cyprus;
2. Considers the
Declaration referred to above as legally invalid and calls for its withdrawal;
3. Calls for the
urgent and effective implementation of its resolutions 365(1974) and 367(1975);
…
6. Calls upon all
states to recognize the sovereignty, independence, territorial integrity and
non-alignment of the Republic of Cyprus;
7. Calls upon all
states not to recognize any Cypriot state other than the Republic of Cyprus;….
To this day, member states have
respected international law and refrained from recognition of the illegal
“TRNC.”
Theories of Recognition
Recognition arises in every aspect of State life. Whenever
there is a change of government or a transfer of territory, legal or illegal,
the question of recognition is involved. Only
after a State has been recognized may it exercise the rights and attributes of
sovereignty with other States. Recognition confirms its place in the community
of other nations.
In discussing the theory of recognition, there are two
schools of thought, which differ as to the concept of recognition. There is the
constitutive school, which as set forth by Oppenheim, is that “A State is, and
becomes, an International Person through recognition only and exclusively.”
The other, which is opposed to this theory, is the declaratory school. This
theory considers that existence of State is a fact. And, as long as, that fact
exists, it is subject to international law, independently of the actions of
other States.
Criteria for Statehood
The basic criteria for statehood is found in Article 1 of
the Montevideo Convention, 1933:
The State as a person of international law should
possess the following qualifications: (a) a permanent population; (b) a defined
territory; (c) government; and (d) capacity to enter into relations with other
States.
A State that satisfies these conditions is a State, and
recognition of it, is the establishment of that fact and not the expression of
a will. “It is cognition rather than re-cognition.”
Before recognition, the unrecognized community does not exist. Only the act of
recognition allows it to come into legally existence in relation to the
recognizing State. It is the legal existence, the one that is judged by
international law that is of importance. Therefore,
recognition has a distinctive constitutive character.
Non-Recognition and Jus Cogens
Are existing States required to recognize a new community
as a State? No. There is no obligation to perform the act of recognition. On
the other hand, if a State recognizes another community that has not fulfilled
the conditions set by international law, it is a violation of international
law.
“When the illegality invoked is substantial, and in particular when it involves
a norm of jus cogens, States have a
duty under customary international law, individually and collectively, not to
recognize the act as legal.”
An internationally wrongful act of a State, which
constitutes an international crime, entails an obligation for every other
State:
(a)
not to recognize as legal the situation created by such act;
and
(b)
not to render aid or assistance to the author State in
maintaining the situation created by such act; and
(c)
to join other States in affording mutual assistance in
carrying out the obligations under (a) and (b).
Criteria for Statehood Unfulfilled
As noted above, Turkey invaded Cyprus in 1974 and nine
years later, 1983, it unilaterally declared itself independent.
However, 28 years later, 2002, and still only one, Turkey, recognized this
declaration, in violation of international law. Does the “TRNC” have the right
to be recognized? In other words, has it satisfied the four basic requirements
of statehood laid down by the Montevideo Convention of 1933? And if so, would
it then be entitled to “cognition” as satisfying these conditions and hence,
recognition by the community of nations?
The first criterion that needs to be satisfied for
statehood is the possession of a permanent population. States are composed of
individuals. Hence, the rule is that a permanent population is necessary for
statehood. However, there is no minimum amount requirement.
Since 1974, the Turkish government has been trying to
create a permanent population. This permanent population consists of Turkish
Colonists transplanted from Turkey’s mainland. In doing so, Turkey has
successfully managed to cleanse not only the Greek-Cypriots, but also, the
Turkish Cypriots. Today, the “occupied areas” consist of a population, which
was illegally created, of 115,000 Turkish Colonists and 40,000 Turkish troops.
The permanent population that existed before 1974 has been captured, killed or
forced to emigrate. The legal population of these areas is the 200,000 Greek
Cypriots and 40,000 Turkish Cypriots who lived in the “occupied areas” before
1974.
Hence, the “TRNC” does not have a permanent population and does not satisfy the
first requirement of statehood.
The second, criteria for statehood, is the possession of a
defined territory. A substantial boundary or territorial dispute with a State
is not enough to bring statehood into question. The only requirement is that
the State must consist of a coherent territory effectively governed.
The “TRNC” cannot satisfy this requirement either. Since the effective
jurisdiction of Cyprus was terminated through the use of force by Turkey (in
relation to the “occupied areas”), Cyprus prevents third party states (Turkey)
from according the “TRNC” recognition. Such an unilateral action would infringe
upon the rights of Cyprus.
Possession of a government is the third requirement needed
for a community to achieve statehood. There are various claims that this
government requirement is the most important criteria for statehood, since all
the others depend on it.
Government has two aspects: actual exercise of authority and the right or title
to exercise that authority.
There is no “Turkish-Cypriot Government” because it does not consist of
Turkish-Cypriots and has been judged by the European Court of Human Rights
(ECHR) to be controlled by the Turkish military. The
right to exercise that authority is given to the “TRNC” by Turkey and not by
“its” people. The actual exercise of the authority given to it from Turkey is
upon the illegal Turkish settlers. In addition, there is no legal police in the
“occupied areas”. The occupying Turkish army carries out policing. Therefore,
the “TRNC” does not satisfy the third requirement, which some argue, is the
most important requirement for statehood.
The last criterion, which needs to be satisfied before a
State may be recognized, is the capacity to enter into relations with other
states. Capacity depends partly on the power of an internal government of a
territory to enter into, carry out, and accept responsibility for its relations
and actions with other States.
Since the “TRNC” is not capable of entering into, carrying out and accepting
responsibility for its relations and actions with other States, it therefore,
does not satisfy the fourth requirement of statehood.
Some theorists argue that there is a fifth requirement to
statehood. Independence. It is believed by some to be the central criterion of
statehood.
In the situation with the “TRNC,” independence is a legal nullity. It may even
be regarded as a “puppet state.”
Since the illegal Turkish regime of the “TRNC” is actually controlled by
Turkey, that new relation becomes one of agency, and the responsibility for the
illegal acts of the “TRNC”, falls with Turkey. The
“TRNC” does not nor cannot act independent of Turkey.
Conclusion
In the end, the “TRNC” is not a recognized entity. It has
not satisfied the requirements of statehood set out in Article 1 of the
Montevideo Convention. Therefore, since the “TRNC” has not satisfied the
requirements of statehood, States are prohibited to, and that includes Turkey,
from recognizing that community. If States do, as Turkey did, it would be a
violation of international law and they should be held accountable.
On 4 November 1950, the Convention for the Protection of
Human Rights and Fundamental Freedoms of the Council of Europe (Convention) was
adopted. On 3 September 1953, it entered into force. The Convention was signed
by 32 member states of the Council of Europe, including, Cyprus and Turkey.
The goal of the Convention was in “securing the universal
and effective recognition and observance of the rights therein declared…. And
to promote the collective enforcement
of certain rights stated in the United Nations Universal
Declaration.”
Loizidou v. Turkey
Titina Loizidou is a Greek-Cypriot refugee who has been
prevented from returning to her home in the “occupied areas” of Cyprus by
Turkish troops. She comes from Kyrenia, which today, happens to be under
illegal occupation by Turkey. Due to Turkey’s illegal invasion in 1974,
Loizidou has been denied from returning to her home by the Turkish army.
Loizidou applied to the European Commissioner of Human
Rights, in Strasbourg by filing an individual application against Turkey. Her
case subsequently went from the Commission to the European Court of Human
Rights (ECHR).
Article 1 of Protocol 1 of the European Convention for the
Protection of Human Rights reads:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the conditions
provided for by law and by the general principles of international law.”
In looking to Article 1 of Protocol 1, the ECHR took
notice of the large number of Turkish troops stationed in the “occupied areas”
of Cyprus. In addition, the ECHR considered it “obvious that the Turkish Army
exercised ‘effective overall control’ over that part of the island.” Hence,
such control meant that Turkey bears responsibility for the actions of the
“TRNC.”
It follows from this reasoning, since Loizidou had been
deprived, on more than one account, of returning to her property, that it fell
within Turkish jurisdiction. Therefore, Turkey and the Turkish Army were
directly responsible for not allowing Loizidou enjoyment of her property.
The ECHR established that “an individual has basic rights
and these rights will be respected under all circumstances.” In other words,
Turkey abused Loizidou’s basic human rights by not allowing her free movement
and settlement, enjoyment of property and exercise of property rights.
In order for the ECHR to rule as such, they needed to
assess Loizidou’s legal title to the land. To do so, they needed to look to
Article 159 of the 1985 “TRNC constitution” that all immovable property which
were found abandoned in 1975 were considered as the property of the “TRNC.”
After doing such, the ECHR took official notice of Security Council resolutions
541 and 550 and of the statements made by the Committee of Ministers of the
Council of Europe, the European Communities and the Commonwealth Heads of
Government.
After doing so, the ECHR concluded that the international
community does not regard the “TRNC” as a state under international law. Hence,
it “cannot attribute legal validity for the purposes of the Convention to such
provisions as Article 159.” In other words, since the ECHR found that the
international community does not recognize the “TRNC”, and hence, the laws of
the “constitution” could not, and did not, take away or deprive Loizidou of her
property.
In addition, the ECHR decided that because of the
continuous violations of Loizidou’s human rights by Turkey, and the subsequent
loss of use of her property, she was entitled to just satisfaction under
Article 50 of the Convention. Turkey was order to pay Loizidou US$600,000 in
damages for the continued violation of her right to peaceful enjoyment of her
property, US$40,000 for non-pecuniary damage and US$244,168 for her cost and
expenses.
In the end, the most important precedent that was set by
this case is that Loizidou “is still the legal owner of the property, no issue
of expropriation arises, … and that her claim is thus confined to the loss of
use of the land and the consequent loss of opportunity to develop or lease it.”
In addition, Mrs. Loizidou has not abandoned her right to return to her
property. This precedent, will not only pave the way for other Greek or
Turkish-Cypriots from doing the same, it will also open the door for
Palestinian Arabs who forcibly fled their homes in 1948 and again in 1967. They
too, no longer have access to their land.
The political consequence of this decision is crucial.
Subsequent negotiations and a solution to the Cyprus Problem cannot ignore that
the rightful owners of land in the “occupied areas” of Cyprus can only be
absolved of their property rights when they themselves decide to surrender that
right and their land.
Cyprus v. Turkey
On 10 May 2001, the European Court of Human Rights (ECHR)
delivered its judgment; by sixteen votes to one that the matters complained of
by Cyprus, in its application, entailed Turkey’s responsibility under the
European Convention on Human Rights (Convention). The ECHR held that there were
14 violations of the Convention.
Turkey denied liability under the Convention for the
allegations made against it. However, the ECHR ruled that the application fell
within the “jurisdiction” of Turkey within the meaning of Article 1
of the Convention. Therefore, Turkey was responsible under the Convention.
In addition, the ECHR used Loizidou v. Cyprus (above) as being consistent with this ruling on
“jurisdiction.” As noted above, in the Loizidou
Case, the Court held that Turkey exercised “effective overall control” of
the “occupied areas” of Cyprus through its military presence there. Therefore,
Turkey’s responsibility of the Convention was engaged for the politics and
actions of the “TRNC” authorities.
Furthermore, the ECHR looked to the Advisory Opinion of
the International Court of Justice in the Namibia
Case and that, in situations similar to these, “the obligation to disregard
acts of de facto
entities, like the ‘TRNC’, was far from absolute. Since life went on in the
territory concerned for its inhabitants, that life must be made tolerable and
be protected by the de facto
authorities, including their courts. To hold otherwise, would amount to
stripping the inhabitants of the territory of all their rights whenever they
were discussed in an international context, which would subsequently amount to
depriving them even of the minimum standard of rights to which they were
entitled.”
This case relates to the situation that has existed and
continues to exist, in the “occupied areas” of Cyprus, since Turkey and her
military invaded in July and August 1974.
In the explanation of this case, we will not cover all 14
violations of the Convention in depth. However, the specific violations of the
rights of displaced persons to respect for their home and property will be
covered.
Violations
As to Greek-Cypriot missing persons, the ECHR ruled that
there had been a continuing violation of Article 2,
Article 5
and Article 3
of the Convention.
As to living conditions of Greek-Cypriots in the Karpass
region of “occupied” Cyprus, the ECHR ruled that there had been a violation of
Article 9,
Article 10,
Article 2 of Protocol No. 1,
Article 3, Article 8, Article 13 and a continuing violation of Article 1 of
Protocol No. 1 of the Convention.
As to the rights of Turkish-Cypriots living in “occupied”
Cyprus, the ECHR ruled that there had been a violation of Article 6
of the Convention.
As to the rights of displaced persons to respect for their
home and property in “occupied” Cyprus, the ECHR ruled that there had been a
violation of Article 13 and a continuing violation of Article 8 and Article 1
of Protocol No. 1.
Article 8 of the Convention
The applicant Government (Cyprus) maintained that the
respondent State’s (Turkey) action, which had prevented the displaced
Greek-Cypriots from returning to their homes, was in violation of Article 8 of
the Convention which reads,
1. Everyone has the
right to respect for his private and family life, his home and his
correspondence.
2. There shall be no
interference by a public authority with the exercise of this right except such
as in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health
or morals, or for the protection of the rights and freedoms of others.
Cyprus maintained that Turkey’s policy was aimed at
dividing Cyprus along racial lines. Subsequently, 200,000 Greek-Cypriots
were displaced. “This was affected partly by physical expulsion and partly by a
systematic campaign of terror, causing Greek-Cypriots to flee in the face of
Turkey’s advancing armed forces.”
The Commission found that these persons, without
exception, continued to be prevented from returning to or even visiting their
previous homes in the “occupied areas” of Cyprus. In addition, the displaced
individuals are unable to apply to the “authorities” to reoccupy their homes
that they left behind.
Therefore, the ECHR concluded, that there has been a
continuing violation of Article 8 of the Convention by reason of the refusal to
allow the return of any Greek-Cypriot displaced persons to their homes in
“occupied” Cyprus.
Article 1 of Protocol No. 1
Cyprus maintained that the Greek-Cypriot refugees, who
were driven out of their homes, either during Turkey’s invasion or during the
subsequent occupation that ensued, were continuously refused the right to
return to “occupied” Cyprus. Hence, this not only barred them access to their
property, but it also “prevented them from using, selling, bequeathing,
mortgaging, developing, and enjoying it.”
Therefore, this amounted to a continuous violation of the
“right to peaceful enjoyment of possessions” that is guaranteed by Article 1 of
Protocol No. 1, which reads,
Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the conditions
provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any
way impair the right of a State to enforce such laws, as it deems necessary to
control the use of property in accordance with the general interest or to
secure the payment of taxes or other contributions or penalties.
The Republic of Cyprus contented that Turkey had adopted a
policy of interference with the immovable property of the displaced persons.
These properties in question, where unlawfully dispossessed and transferred
into Turkish
possession. Steps were taken to “legalize” this illegal appropriation of
properties by assignment of “title deeds” to the new possessors.
Due to Article 159 of the “constitution” of the “TRNC”,
the ECHR agreed that the “authorities” no longer recognize any ownership rights
of Greek-Cypriots. This article in question was given practical effect in “Law
no. 52/1995.” This provision has been deemed invalid, by the ruling in the Loizidou case (above), for the purposes
of the Convention. In addition, even though “Law no. 52/1995” was not invoked
before the Loizidou Court, “it cannot be attributed any more legal
validity than its parent “Article 159” which it purports to implement.
Therefore, the ECHR concluded, since Greek-Cypriot
property owners in “occupied” Cyprus are “being denied access to and control,
use and enjoyment of property”, there has been a continuing violation of
Article 1 of Protocol No. 1
Article 13 of the Convention
The applicant Government contended that the respondent
State failed to provide an effective or any remedy to displaced persons. For
instance, they were not permitted to talk to the International Red Cross
without Turkish supervision.
This was a clear breach of Article 13 of the Convention,
which reads,
“Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
The Commission held that the Greek-Cypriots were given no
conditions in which to contest their physical displacement. Therefore, there
was a violation of Article 13 of the Convention. The ECHR agrees with the
Commission and concludes that there has been a violation of Article 13 because
Turkey failed to provide Greek-Cypriots, not residing in “occupied” Cyprus, any
remedies to contest their rights.
Conclusion
The holdings from the Court in the two cases above will
serve as a guideline to a final settlement of the Cyprus problem. It is
imperative to note that the rights of displaced persons cannot be bartered away
for the purpose of obtaining a solution. Only the concerned individuals can
waive their existing rights. This topic will be addressed in another section of
this paper.
In this section, we will cover the legal issues arising
from Certain Population Transfers and Displacement on the Territory of the
Republic of Cyprus in the Period since 20 July 1974. The Republic of Cyprus
asked the legal scholars (experts) to advise them on the question of “the
lawfulness under both general international law and the regime established by
the European Convention on Human Rights of forced population transfers and of
certain proposals for compulsory transfers of property belonging to persons
displaced as a result of force population transfers in Cyprus from mid-1974 onwards.”
They were asked to deal with the following matters:
1. the right of
return of displaced persons;
2. the right of such
persons to their homes and property located in areas from which they have been
displaced;
3. the lawfulness or
otherwise of a compulsory global exchange of properties of the displaced
persons, with property rights being replaced by individual rights to apply for
compensation.
When dealing with mass population transfers, it is
important to note that there are voluntary and forcible transfers. An example
of voluntary population transfers may be caused by economic factors, such as
work. However, the experts were not concerned, in this respect, because the
persons caused to flee, still retain a “measure of freedom as to whether,
where, and how to move and whether to return.”
In regards to Cyprus, what occurred was a forcible mass
transfer. There, the Cypriot population was not given the choice of whether to
stay or go. Forced population transfers can occur due to the community or group
they belong to, as a side effect of armed conflict or from a refusal to grant
permission of return by barring return to the expelled population.
In dealing with forcible transfers, the experts
distinguished the following four legal contexts:
a. Forcible transfers
as breaches of particular human rights standards;
b. Forcible
transfers as racial, religious or other discrimination: “ethnic cleansing”;
c. Large scale
forcible transfers as a crime against humanity; and
d. Forcible
expulsion by a belligerent or unlawful occupant.
Human Rights
Forcible mass transfers of population are a violation of
human rights and these rights have become part of the corpus of international
law. The Universal Declaration of Human Rights of 1948 declared that Article 3,
Article 5,
Article 9,
Article 12,
and Article 15(2), are
fundamental rights relevant to mass transfers of population. It is also the
opinion of these experts that “forcible transfer of populations is now clearly
contrary to international law as it has evolved.”
After the Turkish Army invaded Cyprus, 1600 Greek-Cypriots
went missing. There were reports made that they were in Turkish custody at the
time of their disappearance. This is contra to Article 3 of the Convention
because “everyone has the right to life, liberty and security of person,”
however, Turkey did not respect this right. Until today, the fate of over 1600,
is still unknown.
Countless amounts of women were subjected to rape and acts
of prostitution at the hands of the invading Turkish military and Turkish
officers. Again, Turkey did nothing to stop or prosecute those responsible for
these “inhuman” and “degrading” acts that run contrary to Article 5 of the
Convention.
In regards to Article 9 of the Convention, over 200,000
Greek-Cypriots were forced into “exile” in 1974 due to Turkish military
aggression. They have not been allowed to return and have become refugees in
their own country. And
due to the fact that they were exiled, the Turkish Army also interfered with
their privacy, family and home. Which is in violation of Article 12 of the
Convention.
Lastly, since the Greek-Cypriots that were forcibly
removed, have not been allowed to return home and exercise free movement in
Cyprus, they have been arbitrarily denied of their nationality in violation of
Article 15(2).
Ethnic Cleansing
Ethnic cleansing is the forcing out, from a particular
area, the people of one race or ethnic group, in order to bring about and
maintain the changed demographic complexion of the area. This act is prohibited and has been found to
be a violation of international law by the Committee on the Elimination of
Racial Discrimination. They declared, “any attempt to change or to uphold a
changed demographic composition of an area, against the will of the original
inhabitants by whichever means is a violation of international law.”
The United Nations Security Council first passed
resolution 941 (1994), which described “ethnic cleansing” as a clear violation
of international humanitarian law, demanded it be put to an end, condemned the
practice as unacceptable and reaffirmed that those who committed these acts
will be held individually responsible for such acts. In addition, similar
Security Council resolutions strongly condemned the practice of “ethnic
cleansing” as a violation of international humanitarian law and demanded that
this activity cease.
In July 1974, Turkish troops forced about 200,000
Greek-Cypriots, who were living in what is today the “occupied areas”, to flee
to the “free areas” of Cyprus. However, in October 1974, 32,029
Turkish-Cypriots were still in the “free areas.” Nonetheless, the demographic
composition was not complete, so the remaining Turkish-Cypriots were
transplanted to the “occupied areas.” Unfortunately, most did not want to leave
their properties and lives behind, but they were left with no choice.
Crimes Against Humanity
In 1996, The International Law Commission adopted Article
18 of the Draft Code of Crimes against the Peace and Security of Mankind. This
Article declares that “’arbitrary deportation or forcible transfers of
populations constitute a crime against humanity ‘when committed in a systematic
manner or on a large scale and instigated or directed by a Government.’”
“Large-scale forcible expulsion of people is a crime under
international law…. Such conduct is not linked with the category of war crimes:
it involves a crime against humanity, whether carried out in armed conflict or
otherwise.”
In Cyprus, the situation was carried out both during an
armed conflict and continues through the subsequent occupation. The Turkish
Army is trying to forcibly transfer the remaining Greek-Cypriots that remained
enclaved in the “occupied areas” since 1974. Today, about 600 still remain.
When dealing with the unlawfulness of forcible mass
transfers of populations, Article 49 of the Fourth Geneva Convention, of 12
August 1949, and Article 85(4)(a) of the Protocol Additional to the Geneva
Conventions, of 12 August 1949, classifies mass transfers of population as
serious war crimes and “grave breaches.”
Article 49 reads:
“Individual or mass forcible transfers, as well as
deportations of protected persons from occupied territory to the territory of
the Occupying Power or to that of any other country, occupied or not, are
prohibited, regardless of their motive.”
Article 85(4)(a) reads:
“The transfer by the Occupying Power of parts of its
own civilian population into the territory it occupies, or the deportation or
transfer of all parts of the population of the occupied territory within or
outside this territory, is in violation of Article 49 of the Fourth
Convention.”
In Cyprus, mass populations were “ethnically cleansed” by
the Turkish Army, which is a violation of Article 49. In their place, the
Turkish Government sent “its own civilian population to the territory it
occupies.” Hence, a violation of Article 85(4)(a). These acts, which were
committed, were done at the expense of all the original inhabitants; it was not
done to protect the “deportees” interests. Rather, it was to further an act
that has been deemed “illegal” and third states are precluded from recognizing
it as lawful.
